Lai Wai Kwong By His Wife and Next Friend Ho Lai Fan v. Yu Wok Man

DCEC 1171/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1171 OF 2015

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J U D G M E N T

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A.　BACKGROUND

1.Mr Lai (“the Injured”) is a mentally incapacitated person (“MIP”)[1] within the meaning of the Mental Health Ordinance. Through his wife and next friend, Mdm Ho (“Next Friend”), the Injured (who together with the Next Friend are jointly referred to as the “applicant”) brought these employees’ compensation proceedings against the respondent pursuant to the Employees’ Compensation Ordinance (“Ordinance”). (All references in this Judgment unless otherwise stated are references to the Ordinance.)

2.The Injured suffered severe head injuries and was rendered a MIP as a result of an accident which occurred on 24 July 2013 in the course of and arising from the Injured’s employment with the respondent.

3.The respondent did not participate in these proceedings despite having been served with the application.  Interlocutory judgment on liability was entered on 30 September 2016.

4.This was a trial for the assessment of the compensation.  At the trial, the applicant was represented by counsel, Mr Walker Sham (who was assigned by the Director of Legal Aid), and the respondent was absent.  Upon being satisfied that the respondent was properly served with my order for trial, I proceeded to trial in the respondent’s absence.

B.　COMPENSATION CLAIMED AND ISSUES

B.1　Compensation claimed

5.Apart from claiming compensation under ss.7 (permanent total incapacity), 8 (the costs of attention provided by another person), 10 (temporary incapacity) and 10A (medical expenses), the applicant has also included in the application a claim for compensation under s.36B (costs of supplying and fitting prosthesis or surgical appliance). However, as reflected in the “Particulars of the items of claim” the applicant was directed by this court to serve on the respondent, the claim for s.36B compensation is no longer pursued.

B.2　Form 7 certificate

6.By a Form 7 certificate (“Form 7”) issued by the Employees’ Compensation (Ordinary Assessment) Board of the Labour Department, the Injured’s loss of earning capacity permanently caused by the injury was assessed to be 100 percent, and the duration of sick leave was assessed to be in the total of 522 days (comprising two periods of sick leave).

7.No appeal was issued against the Form 7 assessment. Hence, in the absence of an appeal, the total number of 522 days of sick leave and the 100 percent loss of permanent incapacity stated in the Form 7 certificate by virtue of s.16H[2], constitute conclusive evidence as to quantum.

8.Since, the Injured has been assessed to have suffered 100 percent loss of permanent total incapacity, he is entitled to compensation under s.7: s.7(3)(b)[3].

9.In addition, the compensation under s.10 shall also be calculated in accordance with the number of days of sick leave stated in Form 7.  Yet the applicant in apparent disregard of the binding effect of Form 7, has claimed in the Particulars of the items of claim an amount for s.10 on the basis of 36 months of sick leave the applicant averred was granted to the Injured. The period of 36 months was continued to be relied on by Mr Sham in his written submission in relation to s.10 compensation.

10.The claim for 36 months of sick leave was later withdrawn when this court drew counsel’s attention to the effect of s.16H.  At the end, the number of 522 days for sick leave as stated in Form 7 was agreed to be used for calculating the s.10 compensation.

B.3　Issues

11.As for the s.10A compensation (the amount of medical expenses), this is uncontroversial and only a matter of strict proof. In the result, only two issues require the determination of this court for the compensation under ss.7, 10 and 8, namely:

For compensation under ss.7 and 10

(1) What were the Injured’s monthly earnings at the time of the accident?

For compensation under s.8

(2) Whether the injury the Injured suffered is of such a nature that he is “unable to perform the essential actions of life without the constant attention of another person”? If so, what is the appropriate amount?

C.　COMPENSATION UNDER SS. 7 AND 10

C.1　The Injured’s monthly earnings at the time of the accident

12.It is averred that the Injured’s monthly earnings at the time of accident were $24,700 (para 3(6) of the application).

13.After having considered and evaluated the following evidence, I find that the applicant is able to prove on the balance of probabilities the amount of $24,700 as averred. The reasons are as follows:

14.First, the credible evidence of the Next Friend. The only witness testifying at the trial was the Next Friend who adopted the contents of her witness statement dated 31 October 2016.  The Next Friend testified that the Injured was employed by the respondent as a carpenter in the decoration business around May 2013. He was paid a daily wage of $950 and only took rest on Sunday. Hence, the total number of monthly work days was 26, making the Injured’s monthly earnings $24,700 (i.e. $950 x 26).

15.The Next Friend stated that the Injured’s earnings were sometimes paid by cash and sometimes by cheque.  There is however no direct evidence such as wage receipts to support the Injured’s earnings as the applicant averred. Nonetheless, I am able to find some evidence that lends credence to the said assertion, which is a copy of a one-page extract of the Injured’s bank passbook record that the Next Friend referred to in her testimony. Relevant to the earnings are two cheque deposits dated 9 and 17 July 2013 in the respective sums of $9,500 and $10,450 which, the Next Friend stated, were the Injured’s earnings received from the respondent.  The first deposit of $9,500, the Next Friend stated, represents 10 days’ wages (i.e. $950 x 10 days) while the second deposit of $10,450 was 11 days’ wages (i.e. $950 x 11 days). In the absence of any contradictory evidence, and further for the reason that the amounts have appeared to have matched the number of work days, I’m inclined to accept that these cheque deposits in the total sum of $19,950 were likely to have been the Injured’s earnings for 21 days for the part of July 2013 before he met the accident on 24 July 2013.

16.In light of the nature of the Injured’s job, I further find it credible that the Injured worked 26 days a month for the respondent as the Next Friend stated.

17.Second, there is other corroborative evidence. According to a table set out in the “Press conference on the announcement of wages of the construction industry employees for 2015-2016”[4] compiled by the Hong Kong Construction Industry Employees General Union (香港建造業總工會), the daily wages for a carpenter in the decoration business (same field as the Injured) were $950 and $1,000 respectively for the months of November and December 2012 and November 2013. These reported daily wages are, in my view, cogent corroborative evidence in support of the asserted daily wage of $950.

18.For these reasons, I find on the balance of probabilities that the Injured’s monthly earnings before the accident were $24,700, notwithstanding that the Injured had purportedly stated a lower daily wage of $750 in a record of interview dated 20 November 2013 prepared by a Labour officer. Given the state of the Injured at the time of the giving of the statement - that he was, according to the Next Friend, still confined to a hospital bed, and suffered from a lot of pain from the serious injuries, I consider that no weight should be attached to this inconsistent statement.

19.Hence, the monthly earnings of $24,700 will be adopted for the calculation of the compensation under ss.7 and 10.

C.2　Compensation under s.7

20.The Injured was born on 9 November 1954 and was 58 years of age at the time of the accident and is now 62.  Thus, the applicable section for the calculation of compensation is found in s7(1)(c), which allows the Injured to receive compensation in “a lump sum equal to 48 months’ earnings or 48 times the amount specified in the second column of the Sixth Schedule whichever is the less”.

21.According to the relevant Schedule 6 applicable to the date of the accident (the 2 August 2012 version), the maximum amount specified was $23,580, which is less than the Injured’s monthly earnings of $24,700.  Hence, $23,580 should be applied for the calculation of the amount.

22.I therefore award the applicant $1,131,840 (i.e. $23,580 x 48) as compensation under s.7.

C.3　Compensation under s.10

23.In his further written submission, Mr Sham calculates the compensation under s.10 by adopting the daily wage of $950 rather than the monthly earnings of $24,700 to arrive at the sum of $396,720 (i.e. $950 x 522 x 4/5).  Although the difference in the amount is relatively small, I’m disinclined to adopt the following method of calculation rather than the counsel’s.

24.As I have previously stated in Tsang Chi Chung v Yu Kin San trading as Yu’s trading Co & Anor[5], the calculation should be based on the provisions in s.10(1) that specifies that the compensation be calculated  “at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which  the employee was earning at the time of the accident and the monthly earnings which he is earning…” (emphasis added).

25.Hence, applying the monthly earnings of $24,700 to the total number of days sick leave of 522 certified in Form 7, I award the applicant $339,114 (i.e. $24,700 x 12 ÷ 365 x 522 x 4/5) as compensation under s.10.

D.　COMPENSATION UNDER S.8

D.1　Relevant criteria

26.Section 8 provides as follows:

“(1) Where permanent incapacity which results from the injury is of such a nature that the employee is unable to perform the essential actions of life, without the attention of another person the compensation payable under this section for and in relation to such attention shall, in addition to any compensation payable under other provisions of this Ordinance, be-

(a) such amount not exceeding the amount specified in the second column of the Sixth Schedule shown opposite section 8(1)(a) specified in the first column of that Schedule as the Court considers necessary to meet the cost of such attention; or

(b) …

(2) Compensation under subsection (1)(a) shall be-

(a) a lump sum payment calculated with regard to the probable duration and cost of the attention; or

(b) …

(3) No compensation under this section shall be payable in respect of any period during which the employee is receiving free medical treatment as an in-patient in a hospital or otherwise.” (emphasis added)

27.The criteria for awarding compensation for constant care and attention under s.8 have been helpfully summarized by Judge P. Cheung (as he then was, now Justice of Appeal) in Lau Ka Shui v Yiu Wing Construction Co Ltd & Anor[6].

“If by reason of the permanent total incapacity of the applicant, special attention is required such as helping him with his urination or bowel movements or attending to his bed sores, then the costs for such help is recoverable under this section. By the wording of the section, such help must not be of an intermittent nature. Further, the allowance is not granted in respect of help in housework or other purely domestic purposes. It is, however, not necessary that the applicant should actually be receiving the attention and an award would be made even if the applicant is being looked after by a spouse or other relative. The only restriction is provided by Section 8(3) which prohibits the payment of compensation during the period when the applicant is receiving free medical treatment as an in-patient in a hospital or otherwise.”[7]

28.Accordingly, before this court is able to award compensation under s.8, the applicant needs to satisfy this court that:

(1) First, the attention and help is not of an intermittent nature.   The applicant needs to show that the Injured as a result of the permanent total incapacity is unable to perform the essential actions of life and that he requires constant and regular attention and help of another person.

(2) Second, the nature of help must not be in the nature of “housework or other purely domestic purpose”.

(3) Third, help rendered by “a spouse or other relative” is recoverable.

(4) Fourth, the help rendered is NOT during any period when the Injured is receiving free medical treatment as an in-patient in a hospital or otherwise (s.8(3)).

D.2　Evidence

D.2.1　Medical expert evidence

29.For the purpose of the s.8 claim, the applicant was granted leave to adduce the evidence of a neurologist, Dr. Brian Choa by way of his report dated 9 July 2016 and of an occupational therapist, Mrs Alice Tsang by way of report dated 9 December 2016.

D.2.1.1　Dr Choa’s findings and opinion 

30.Dr Choa examined the Injured on 8 July 2016. In his report[8], Dr Choa set out at length the condition of the Injured (referred to as Lai in Dr Choa’s report) as follows:

“1. Sleep pattern: Mrs. Lai reports that Lai sleeps for over 10 hours every day. He sleeps better during the day. At night he wakes at least three times to go to the toilet, and she has to get up and assist him. Sometimes he wakes more often if he wants a drink of water.

2. Epilepsy: Lai continues to have one or two seizures every month but they are now milder. They take the form of head and eye turning and convulsions affecting usually the left limbs, but sometimes affecting also the right limbs. As stated above, Mrs. Lai has got used to managing them at home and Lai has not been sent to hospital since early 2015. Lack of sleep and hunger appear to be triggers for the seizures.

3. Vision: Lai is totally blind, with no perception even of light.

4. Malocclusion: He has had malocclusion of his teeth since his jaw fracture and cannot chew anything hard such as vegetables. Mrs. Lai purees everything for him. He has no swallowing difficulty.

5. Left sided weakness: whereas his right limbs are normal, his left arm and leg are weak. He is left-handed, so he has had to learn to feed himself holding a spoon in his right hand. He cannot bend his left elbow sufficiently to bring food to his mouth. He can stand using a stick in his right hand and supervised by one person. He can also take a few steps with supervision. His wife takes him to the park twice every day for up to two hours, when he will do some walking practice.

6. Cognition: He is occasionally confused when drowsy. For example, he may lie in bed and say he wants to go to bed. He sometimes asks for work materials to be brought to him. His sense of direction is poor, even within their small home. He has become very poor with figures. However, when alert, his memory seems normal and his speech in conversation is normal and coherent. He recognizes people by their voices. He listens to the radio every day.

7. Mood: His wife reports that his mood is stable and he has not needed psychiatric care.

8. Activities of Daily Living: Lai remains highly dependent on his wife.  He has lost his basic self-care skills.  She needs to help him with dressing, baths, going to lavatory, shaving, brushing teeth and he has to have food prepared for him.  A basic, manually operated hospital bed has been put in the sitting area for his use.  Their home is on the 7th floor of the building. Supplied by lift.”

31.In the opinion of Dr. Choa, given that the Injured was found to “have been left totally blind and with left sided weakness, significant impairment and post-traumatic epilepsy which remains uncontrolled”, there is no prospect of the Injured undertaking any remunerative work.

D.2.1.2　The findings and opinion of Mrs Tsang

32.Mrs Tsang examined and interviewed the Injured at his home on 4 August 2016.  In her report[9] , Mr Tsang states that:

“2.5.1 [The Injured] was found to be severely dependent for all activities of daily living.

2.5.2.  He requires one assistant for personal hygiene and grooming, dressing, transfer, toileting (bladder and bowel), bathing, mobility, medication, external communication, community access/transportation, handling finance”

2.5.3.  He also requires assistance for meal preparation, laundry, housekeeping and grocery shopping.”

33.Mrs Tsang further identifies in her report[10] a host of problems of the Injured from the view of the occupational therapist and lists out in tabular form the required actions in respect of each of the problems.  In the below, I extract from the said table the items of suggested actions that I consider relevant to my determination of the s.8 compensation.

Problems	Actions Required
1. Blindness	a. Needs carer(s) for assistance of activities of daily living. b.  Carer needs to be present at all times to ensure safety.
2. Impairment of active control of upper and lower limbs	a. Needs carer(s) for all activities. b. Needs assistive device for some degree of independence and autonomy (e.g.  for ambulation like walking aid, wheelchair, etc.)
4. Risk of grand mal seizures	a. Carer needs to be present at all times to ensure safety. b. Carer needs training for handling of such episodes.
7. Requires assistance in activities of daily living and regular support for instrumental activities of daily living.	a. Carer to assist in Instrumental ADL (IADL), and in activities of daily living (ADL) for adequate quality of life and to ensure safety.
8. Current lack of carer apart from his wife.  This is a heavy burden on her and limited her own activities.	a. Engagement of domestic helper for the care of Mr.  Lai. b. Supervision by Case manager and training by various therapists.

34.For the future care regime, Mrs Tsang is of the opinion that the following care arrangement[11] is required for the Injured:

“4.2.1. Mr. Lai is dependent for activities of daily living and instrumental activities of daily living. Evaluation indicated that his function was affected by the combined effect of reduced control of left upper and lower limbs, blindness and reduced cognitive function.

4.2.2. From the Occupational therapy point of view for holistic care of Mr. Lai, there are a few services that he would need for his wellbeing and optimal function, as well as to minimise the burden on his family.

4.2.3. Care required:

……

4.2.3.2. Domestic helper: In every day care, Mr. Lai would need someone to be around him to ensure his safety. The case manager would be responsible to assess the efficiency and effectiveness of the helper, as well as arrange for training sessions by therapists on how to achieve treatment goals as a team.

Estimated cost of one live-in foreign domestic helper with local part-time helper service for leave relief: HK$12729.92 per month.”

D.2.2　Factual evidence

35.The Next Friend stated that the Injured was hospitalized until 27 January 2014. Since his discharge home, the Next Friend has provided full-time care to the Injured who has become paralysed on his left side, blind and who suffers from seizures.  As a result, he has not only completely lost his earning capacity, but is wheel-chair bound and totally dependent on others for his daily activities including taking him to the toilet and washing him.

36.In order to enable the Next Friend to provide full time care to the Injured, the Next Friend quit her job in July 2013 as a salesgirl (for which she earned about $8,000 to $10,000 a month). 

D.3　Court’s findings

37.The evidence given by the Next Friend is straightforward and I accept it.  Her evidence that the Injured is totally dependent on her in the daily essential activities of life are overwhelmingly borne out by the medical expert evidence of Dr. Choa and Mrs Tsang that I summarize above.

38.I also accept the findings and opinions of the medical experts as they are supported by the government medical reports. 

39.In the circumstances, I find that the applicant has satisfied the essential criteria for the s.8 compensation:

(1) There is cogent evidence from the Next Friend and the medical experts that, the Injured as a result of the accident has suffered permanent total incapacity that has rendered him unable to perform the essential actions of life without the constant regular attention and help of another person.

(2) Since the Injured’s discharge from hospital on 27 January 2014, the Next Friend, has quit her fulltime job to provide full-time care to the Injured in every aspect of the latter’s daily activities. The evidence confirms that the help provided to the Injured by the Next Friend is constant and predominately non-domestic (though domestic help may likely also be collateral to her rendering of care to the Injured at home as she has not hired any domestic helper).

40.All in all, the evidence the applicant adduced in my finding satisfies the essential requirements for compensation under s.8.

D.4　Whether maximum award should be made

D.4.1　Relevant considerations

41.On behalf of the applicant, Mr Sham advocates an award for the maximum amount of compensation specified in the second column of Schedule 6, which is $462,890, the amount applicable to the date of the accident (See 2 August 2012 version).

42.By further relying on the reasons (stated below) given by the learned Judge in Lau Ka Shui for awarding the maximum amount under s.8, Mr Sham urged this court to similarly grant the statutory maximum award to the applicant.

“Considering the life span of 20 years of the Applicant during which he would require constant attention, the statutory limit of the compensation under Section 8 is still below the actual costs of hiring such a help whether one adopts the figure of $3,000 per month which is the costs of hiring a servant of $300 per day which is the costs of hiring a nurse. I shall award the Applicant with the maximum amount under Section 8.” ([1991] 2 HKC 644 at 649 A-B).

43.From the passage Mr Sham quoted from Lau Ka Shui, and the language used in s.8, I can derive some useful guidelines when determining the amount to be awarded for the s.8 compensation as follows:

(1) The kind of help required to enable the injured employee to perform the essential actions of life. The amount of compensation will depend on what kind of help and care the injured requires, which can range from assisting an injured in ambulation only (for example a wheelchair-bound person) to providing all-round basic care such as doing bathing, taking the injured to the toilet, eating or bed turning to avoid bed-sores for a bed-ridden injured.

(2) The place where the injured receives the attention and care to enable an injured to perform the essential actions of life – at one’s own home or a special care institution.

(i) If it is one’s own home, compensation can be calculated with reference to the costs of the care provided to the injured. These costs will include the costs of hiring an outside help, such as a care worker as well as the loss of wages incurred by a relative or spouse in giving up the latter’s job to care for the injured employee. 

(ii) In the event that the injured is cared for in an institution, the costs of such a care home provided that s.8(3) is not infringed.

(3) The estimated life span of the injured employee.  Obviously, the longer the life span, the larger will be the amount needed for the care and attention for the injured employee.

D.4.2　The Injured is entitled to the maximum award

44.Having regard to the Injured’s permanent incapacity and the extent of the constant help required, I am satisfied that this is a case where the statutory maximum award should be made. My reasons are as follows.

45.First, the severity of the Injured’s incapacity requires wide- ranging care and attention. Based on the evidence (Section D.2) that I have accepted, I find that the Injured due to his blindness and paralysis requires extensive constant care in the form of ambulatory assistance, helping him to go to the toilet and washing his body before he is able to perform the essential activities of life. 

46.Second, the Next Friend has evidently incurred loss of wages in order to provide the care at home. Since the Injured’s discharge from hospital on 27 January 2014, he has been cared for at home by the Next Friend who as a result had given up her $8,000 to $10,000 a month’s full time job as a salesgirl.  Thus up to now, her loss of wages as a result of providing constant care to the Injured is already in the total sum of around $380,000.  This amount has not even taken into account the continuing needs in the future.

47.Third, the Injured’s lifespan. Even though I am not assisted as to the Injured’s life span, on the medical evidence, I note however in Dr Choa’s report he stated that the Injured is at risk of a sudden death from epilepsy, a condition which the Injured is suffering from.   Given the Injured’s age (now 62), and the risk of sudden death, I believe that the Injured’s lifespan will likely be substantially shorter that of the injured claimant in Lau Ka Shui (who was 34 at the time of the accident and would have been 36 at the time of trial, and was found by the court to have another 20 years to live).  In the present case, even if I were to adopt the most conservative assessment by assuming that the Injured has another year to live (which is highly speculative and not supported by any evidence), I find that the applicant should at the very least be entitled to compensation for an additional sum of about $100,000 representing the loss of wages for the Next Friend in rendering the constant care would be incurred.  This additional sum has not even taken into account the estimated cost of $12,729.92 per month Mrs Tsang states the Injured requires to incur for the hiring of a live-in foreign domestic helper with local part-time helper service for leave relief (Mrs Tsang’s report, para 4.2.3.2, see para 34 above).

48.Thus, I award the applicant the maximum amount of $462,890 under s.8.

E.　COMPENSATION UNDER S.10A

49.A total sum of $21,823 is being claimed, which amount is arrived at by having regard to the maximum daily rate of $200 per day specified by Schedule 3. The total allowable amount is in respect of medical expenses incurred by the Injured in Hong Kong, and is supported by receipts. I hence award the sum of $21,823 under s.10A.

F.　SUMMARY OF AWARDS AND JUDGMENT

50.I award the applicant the following sums of compensation:

(a) A sum of $1,131,840 under s.7;

(b) A sum of $462,890 under s.8;

(c) A sum of $339,114 under s.10; and

(d) A sum of $21,823 under s.10A.

51.I therefore award judgment in favour of the applicant for the total sum of $1,955,667 together with interest at half the judgment rate from the date of accident on 24 July 2013 to the date of judgment, and thereafter at the judgment rate until payment.

52.I further make a costs order nisi that the respondent do pay the costs of these proceedings including certificate for counsel. Since Mr Sham has in his further supplemental submission stated that he is no longer pursuing his earlier argument for costs to be awarded on a common fund basis, I therefore order costs to be taxed on the usual party-and-party basis if they cannot be agreed. I order that the applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

53.Lastly, I wish to thank Mr Sham for his assistance.

Mr Walker Sham, instructed by the Director of Legal Aid, for the applicant

The respondent was not represented and did not appear