Wong Ming Tuen v. Law Ting Kam (Transliteration)and Others
Read the full judgment text of DCEC 2365/2015 on BabelCite. This District Court judgment was delivered on 8 May 2019.
1. This is a claim lodged by the Applicant under the Employees’ Compensation Ordinance. The Applicant stated that on 15 May 2015, he was employed by the 1st Respondent. While he was renovating the wooden flooring of a residential unit of Lung Sing House, Kam Lung Court, Ma On Shan, an explosion suddenly occurred and he was badly burned.
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[English Translation – 英譯本] DCEC 2365/2015 [2019] HKDC 600 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION CASE NO 2365 OF 2015 ________________________
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________________________ J U D G M E N T ________________________ 1.This is a claim lodged by the Applicant under the Employees’ Compensation Ordinance. The Applicant stated that on 15 May 2015, he was employed by the 1st Respondent. While he was renovating the wooden flooring of a residential unit of Lung Sing House, Kam Lung Court, Ma On Shan, an explosion suddenly occurred and he was badly burned. 2.The Applicant stated that the 2nd and the 3rd Respondents were the subcontractor and the principal contractor of the renovation works respectively. He now claims against the three respondents. When closing the case, Mr Forest Fong for the Applicant confirmed that the total amount of compensation claimed was $1,346,173.33. 3.According to the Form 9 issued by the Employees’ Compensation (Ordinary Assessment) Board, the Applicant’s permanent loss of earning capacity was assessed at 55%. The injury was “burn injury resulting in (i) scar on body and four limbs; (ii) left hand stiffness; (iii) right hand stiffness”. The period of absence from duty as a result of work injury was from 15 May 2015 to 21 December 2016. The Applicant disagreed with the assessment of his injuries and lodged an appeal. 4.With the leave of the Court, the Applicant relied on two medical reports prepared by Dr Chow Sik Kuen, Specialist in Plastic Surgery, and a medical report prepared by Dr Law Wun Tong, Specialist in Psychiatry, in support of his appeal. Dr Chow assessed that the Applicant suffered 60% loss of earning capacity due to the scars and physical disabilities resulting from the burns. Dr Law, on the other hand, assessed from a psychiatric perspective that the Applicant suffered 5% loss of earning capacity due to the accident. Hence, in view of the assessments of the two experts, the Applicant’s total loss of earning capacity is 65%. 5.Nevertheless, in opening the Applicant’s case, Mr Fong indicated that the Applicant would urge this Court to take into account the Applicant’s special circumstances and assess his incapacity at 100% under section 9(1A). 6.At trial, all three respondents were unrepresented. The 1st and the 2nd Respondents were absent and the 3rd Respondent appeared in person. The 1st and the 2nd Respondents had filed Answers and witness statements at the early stage of these proceedings, denying liability to pay compensation to the Applicant for the alleged accident. The two respondents did not attend the hearing of the pre-trial review. Having examined the affidavits of service of the solicitor for the Applicant, this Court accepted that the solicitor for the Applicant had served the pre-trial review order and the trial bundle on the two respondents. The trial proceeded in the absence of the two respondents. 7.The Applicant and the 3rd Respondent gave evidence in court. Dr Chow attended court for cross-examination pursuant to the directions of this Court. 8.In opening his case, the 3rd Respondent stated his position clearly. He admitted that he undertook the renovation works of the unit in the name of the company. He was the main contractor and he contracted out the work of machine grinding of wooden flooring and floor polishing to the 2nd Respondent. However, prior to the accident, the 3rd Respondent did not know the Applicant and the 1st Respondent and was not clear about the relationship between them. The 3rd Respondent did not dispute the occurrence of the accident and the fact that the Applicant was injured in the accident. Nevertheless, he asked the Applicant to provide the daily wage and the average number of working days per month prior to the accident and evidence in that connection. As regards the Applicant’s claim that his monthly earnings before the incident were $21,925, the 3rd Respondent challenged the amount as excessive. The 3rd Respondent also indicated in his closing submission that he had doubts about the Applicant’s assessment of total incapacity. The Applicant’s case 9.The Applicant was born in Xiamen, Fujian on 11 March 1959. He was 56 years old at the time of the accident. 10.The Applicant has not received any formal education. He can only recognise simple Chinese but cannot write. From about 1988, he started floorboard polishing work. At the time of the accident, he had around 23 years’ experience. Apart from this, starting from around 1997, he did cleaning, debris removal or odd-job work at construction sites or units after renovation. 11.He came to know the 1st Respondent in around 2012. The 1st Respondent was a subcontractor who would contact the Applicant when work was available. Contact was generally made over the phone in advance. They did not sign any written employment contract. The 1st Respondent paid wages in cash every month. 12.According to the Applicant’s witness statement, prior to the accident, on average, he did floorboard work for 22 days and debris removal work 2.5 days a month. He generally worked from 9 a.m. to 6 p.m. each day including a one-hour lunch break. The daily wages of floorboard work and debris removal work were $900 and $850 respectively. Therefore, his average pre-accident monthly earnings were $21,925, namely $19,800 ($900 x 22) + $2,125 ($850 x 2.5). 13.The Applicant said that he did not work for only one employer. He explained in cross-examination that there would not be sufficient work if he only worked for one employer. He worked for the 1st Respondent for “at least 3 days to several days” per month. He usually worked at different places, generally working for only one day at each place. 14.On the day of the accident, the Applicant went to the unit under renovation together with the 1st Respondent in the latter’s light goods vehicle. The equipment, tools and materials required for the renovation works that day all belonged to the 1st Respondent. They included a planing machine, a floor polisher, a blower, a vacuum cleaner, a paintbrush or portable plastic bucket, sandpaper or oil filter, a can of acetone, a can of urethane lacquer, a paintbrush for mixing lacquer, portable plastic bucket and a handcart. 15.Inside the unit, the 1st Respondent gave instructions to the Applicant about floorboard work. At that time, they noticed a glass with a burning candle inside on the floor outside the door of the adjacent unit. The Applicant said to the 1st Respondent, (“)Ask the adjacent unit to take back or put out the candle.(”). The Applicant then went back into the unit under renovation to work. The 1st Respondent later left. 16.Sometime after 4 o’clock in the afternoon the Applicant had almost finished work. When he was outside the unit and was going to apply urethane lacquer in the doorway, he suddenly heard a “bang”. Half a second later, he saw a fireball flashing once. He only started to feel pain all over after a while. At that time he did not know whether he was injured or not. Officers of the Labour Department subsequently told the Applicant that the candle was still burning at that time. 17.The Applicant was then immediately sent to the Accident and Emergency Department of Prince of Wales Hospital. Immediate diagnosis was second degree burns covering 30% of total body surface area. He was transferred to the Intensive Care Unit the same day where he stayed for around one month before being further transferred to the Burns Unit. He was discharged from hospital on 28 August 2015. During his stay in the Intensive Care Unit he received close monitoring, intubation and fluid resuscitation. The diagnosis at that time was 20% full thickness burn and 43% partial thickness burn and the burn injuries were to the head, neck, trunk, hands, upper limbs, feet and lower limbs. 18.During his stay in hospital for about three and a half months, the Applicant underwent seven operations including debridement and skin graft. The total area of graft was 140% of total body surface area. Upon his discharge from hospital, the Applicant was referred for physiotherapy which included scar management, limbs stretching and strengthening exercises. In October 2015, he was admitted to hospital again for another operation. 19.The Applicant’s mental condition was affected by the injuries. He suffered from depressed mood, insomnia and loss of appetite. He received treatment at the Psychiatry Department of Prince of Wales Hospital and was diagnosed with adjustment disorder and prescribed psychiatric drugs. 20.Doctors issued sick leave certificates certifying that the Applicant could obtain a total of 587 days’ sick leave from 15 May 2015 to 21 December 2016. 21.On 16 September 2015, the Applicant received a sum of $31,680 from the 3rd Respondent. The then method of calculation was $900 x 22 x 2 x 4/5, namely two months’ sick leave pay on the basis of a daily wage of $900 and 22 working days in a month. At that time the Applicant signed a receipt but made it clear that he reserved the right to calculate wages. The Applicant’s injuries and current condition 22.It can be seen clearly from the photographs attached to Dr Chow’s report that the Applicant’s trunk and four limbs are full of scars, covering an extensive area. According to the description in the Applicant’s witness statement, his various physical conditions have caused him difficulty in moving about, thus rendering him unable to live and work as he did in the past. What affected him most were:-
23.Dr Chow conducted an examination of the Applicant on 21 July 2018. At that time, the Applicant mentioned that although he could move around on his own, after more than 30 minutes his right leg would feel tired and he could not stand. As for his scars , in hot and humid weather he needed to adjust the air conditioning to 17oC at home to lessen the itchiness. Furthermore, the firm scars on the rear of his right ankle prevented his ankle from bending upwards. Hence, he could not squat . Apart from little perspiration on his scalp and back, there was no perspiration at all on the rest of his body. 24.Having examined the Applicant’s medical reports and conducted an examination of the Applicant, Dr Chow opined that the symptoms described by the Applicant were all caused by the accident and subsequent operations. What he described tallied with the results of his examination. Dr Chow stated that the Applicant had five disabilities which greatly affected his capacity to work. 25.First, the back of the Applicant’s left hand was covered with thick and firm scars which had led to the dislocation of the thumb joint. Scar contractures had dragged down the eponychia, causing deformation of his nails. On the whole, he could not grip fully with his left hand and could not hold comparatively thin objects including pieces of paper. It could not bear weight either. 26.Second, as the Applicant had (a) bedsores on his right ankle during his stay in hospital, after recovery, there were firm scars covering an extensive area on the rear of his ankle. The scars themselves were not flexible, thus preventing his ankle from bending upwards. As a result, the Applicant could not squat. Dr Chow opined that as the Applicant suffered disabilities of his left hand and right ankle, he could not return to his pre-accident floorboard work. 27.Third, the scar on the Applicant’s left armpit had greatly reduced the abduction of his left shoulder from the normal 90 degrees to only 40 degrees. 28.Fourth, the back of his right hand was covered with scars. Some of the nails were deformed due to contractures. Nevertheless, compared with the left hand, the mobility of the right hand was better. He could grip fully with it and it could bear weight. 29.Fifth, skin burns had damaged the Applicant’s sebaceous glands and sweat glands, so that most of his body could not perspire. This seriously affected his body cooling ability, causing him to feel tired, dizzy and weak in the muscles easily. The Applicant’s impaired body cooling function increased his chance of heat stroke. Dr Chow opined during cross-examination that the Applicant could be diagnosed with hypohidrosis of the scalp and the back and anhidrosis of the trunk and the four limbs. Thus, the Applicant should not go out in comparatively hot weather. 30.Dr Chow considered the above five disabilities permanent and incurable. It was a conclusion based on the Applicant’s age and the fact that there was no improvement several years after the accident. In view of the multiple and firm scars on various parts of his body and the resulting deformity and impaired mobility, Dr Chow assessed the Applicant’s loss of earning capacity at 60%. 31.Concerning the Applicant’s mental condition, Dr Law’s diagnosis was mild adjustment disorder. He assessed that the Applicant accordingly suffered a 5% loss of earning capacity. 32.Although the Applicant’s total incapacity was assessed by the two experts at 65%, the Applicant said that in fact he could no longer work. He had received little education and had all along engaged in floorboard work and debris removal work at construction sites without any other job skills. Given his current physical condition, he cannot do manual jobs and is not eligible to change to less physically demanding types of work or office work such as being a caretaker as he is basically illiterate and cannot obtain relevant qualifications. All in all, basically no employer will employ him. Moreover, owing to the hot and wet weather in Hong Kong, he cannot even scavenge for cardboard because he cannot engage in physical activities outdoors for most of the time. The 3rd Respondent’s case 33.The 3rd Respondent has engaged in renovation works for about 30 years. He started to undertake projects, mainly renovation of residential units, in the name of the company in 1999. 34.He confirmed that he undertook the renovation works at the unit where the accident occurred in April 2015. The fees for the works were about $60,000. He contracted out the work of machine grinding of wooden flooring and floor polishing to the 2nd Respondent. He had collaborated with the 2nd Respondent for over ten years. The two of them entered into an oral agreement without any written contract. The mode of collaboration was generally that after the 2nd Respondent had completed floorboard work, the 3rd Respondent would make payment and get a receipt. 35.He had no knowledge when the 2nd Respondent contracted out the work to the 1st Respondent. Prior to the accident he did not know the 1st Respondent and the Applicant and was not clear about the relationship between them. 36.On the night of the accident, the 3rd Respondent, Ms Leung (transliteration) of the 2nd Respondent and the 1st Respondent went to the hospital to visit the Applicant. At that time, the Applicant had not yet regained consciousness. The Applicant’s wife who was present mentioned that:-
37.Three months later, the 3rd Respondent received a letter from the Applicant’s solicitors stating that the Applicant on average earned $19,800 a month during the 12 months prior to the accident and requesting the 3rd Respondent pay sick leave pay for work injury and medical expenses to the Applicant. It is not in dispute that the 3rd Respondent had paid $31,680, namely two months’ sick leave pay to the Applicant by cheque. At that time, the 3rd Respondent asked the Applicant to provide documentary proof of income for verification. However, the Applicant only signed a receipt. As the Applicant’s wife had indicated that he did not have sufficient work, the 3rd Respondent had all along asked the Applicant to provide proof of the number of working days per month and daily wages. Nevertheless, the Applicant has not been able to provide any documents. 38.The 3rd Respondent challenged the claim that the Applicant could do floorboard work for 22 days per month prior to the accident. According to his experience, during the last 15 or 20 years, fewer residential units would have wooden flooring. Most customers would now choose ceramic tiles or long pieces of laminated flooring. Few customers would use machine ground wooden flooring. Also, the 1st Respondent had disclosed to him that the 1st Respondent himself only did floorboard work for 12 to 15 days a month on average. There should have been even less work available for the Applicant. The daily wage paid to the Applicant by the 1st Respondent was only $800, not $900 now claimed by the Applicant. Therefore, the 3rd Respondent disagreed with the monthly earnings calculated by the Applicant. 39.As for the Applicant’s total incapacity, although the 3rd Respondent expressed deep sympathy to the Applicant for his injuries and current condition in his closing submission, he pointed out that renovation work was basically a tough job. Also, in respect of the contention that the Applicant could not go out and needed to stay in environments with a temperature below 17oC, the 3rd Respondent submitted that even if it was true, according to the records of the Hong Kong Observatory, there were 40-odd days in 2018 in Hong Kong with an outdoor temperature hovering around or below that temperature. Thus, the Applicant’s contention that he could not go out to work at all also failed. Findings of fact 40.At trial, the Applicant was cross-examined by the 3rd Respondent. The cross-examination was brief and the Applicant’s answers were simple, straightforward and clear. This Court accepts his statements concerning his personal background, educational qualifications and work experience as true. Taking his evidence as a whole, his account regarding his mode of work with the 1st Respondent and their relationship and the accident on that day is credible. As the 1st Respondent did not testify in court, there is no evidence in rebuttal or to the contrary concerning the Applicant’s version in this respect. 41.Moreover, the 1st Respondent was prosecuted by the Labour Department on various charges after the accident. Among them, the 1st Respondent pleaded guilty to the following 21 charges in the Magistrates’ Court:-
42.The 1st Respondent agreed with the facts of the above case which stated clearly that the 1st Respondent was the Applicant’s employer at the time of the accident. 43.Therefore, this Court accepts the Applicant’s factual case with respect to his mode of work with the 1st Respondent and their relationship and the accident. 44.As regards the Applicant’s injuries, current physical condition and mobility, this Court accepts the accounts he gave in the witness statement(s) and when being examined by specialists – see paragraphs 22 to 23 above. 45.It is obvious from the photographs that the Applicant’s injuries were serious. Doctors who had provided the medical treatment recorded in detail that he had undergone various debridement and skin graft operations. This is also sufficient to prove the seriousness and extensiveness of the Applicant’s injuries. Dr Chow explained in detail and specifically that as the Applicant’s injuries were extensive and serious and there were infections of the wounds after operations, many of the scars on the body were comparatively thick and firm. The firmer the scars were, the greater the restriction of the mobility of the parts of the body concerned became. The most obvious examples were the right ankle, left hand and left armpit. When asked in cross-examination how one could know whether the Applicant deliberately pretended that there was a problem with his body movements, Dr Chow confirmed that during examination he had asked the Applicant to carry out various movements. He had also pressed the parts of the body concerned to ascertain whether the Applicant feigned or exaggerated his symptoms. He had touched the Applicant’s scars and confirmed they were very firm. 46.This Court considers that the contents of Dr Chow’s report are reasonable. Basically, there is no reason not to accept his views. 47.Similarly, this Court also accepts the diagnosis in the psychiatric report prepared by Dr Law. 48.As far as the 3rd Respondent is concerned, his approach and position in the present action are clear. He basically asked the Applicant to provide positive proof in support of his computation of monthly earnings. Such a request is reasonable. His factual evidence is basically credible. Apart from this, he admitted that he was the main contractor of the renovation works and had subcontracted the floorboard work to the 2nd Respondent. Thus, this Court accepts the 3rd Respondent’s version in respect of the relationship between him and the 2nd Respondent and the present project as true. 49.Regarding the Applicant’s pre-accident monthly earnings, this Court has considered the following. 50.With regard to the daily wage of floorboard work and the number of working days per month, the Applicant said that he generally did not enter into contracts with employers and wages were paid in cash. Hence, he could not produce any documentary evidence. This Court considers that this version makes sense and it is similar to the situation of people working on a casual basis. 51.On the other hand, this Court does not query the 3rd Respondent’s contention that ceramic tile or laminated flooring has been a more popular option in home decoration in recent years. The Applicant indicated in cross-examination that he understood this contention but he explained that there were still people using wooden flooring. Moreover, he did not work for a single “boss”. He agreed that if he only worked for a single “boss”, it would not be sufficient. Mr Fong also pointed out it could be reasonably assumed that existing homes with wooden flooring might need refurbishment and grinding. Then it was necessary to engage floorboard workers like the Applicant. The unit where the accident happened needed such kind of refurbishment works. The Applicant’s version is reasonable. 52.The 3rd Respondent quoted the 1st Respondent as saying that he, being a subcontractor, also encountered insufficient work and that daily wages were only $800. What the 3rd Respondent quoted is hearsay evidence. The 1st Respondent is one of the respondents in the present action but he chose not to attend court to give evidence. This Court will not give too much weight to such evidence. 53.Concerning the dispute over insufficient work, the 3rd Respondent also relied on what the Applicant’s wife said in the hospital (see paragraph 36 above). This Court basically does not query what the 3rd Respondent quoted. On the face of it, this remark seems to point to the fact that the Applicant encountered insufficient work prior to the accident. However, did the Applicant’s wife clearly know the Applicant’s work and earnings? And what was the context of this remark? Furthermore, that night, the Applicant had just sustained serious injuries and was still in a coma. This Court considers it inappropriate to give too much weight to the words uttered by his wife in such circumstances. 54.This Court accepts the Applicant’s version and finds that prior to the accident he did floorboard work at a daily wage of $900 and worked for 22 days a month on average, namely earning $19,800 a month doing floorboard work. 55.On the contrary, this Court has reservations about the truthfulness of his claim that he earned an additional of $2,125 a month. 56.After the accident, the Applicant claimed that his monthly earnings were $19,800: see the Application for Compensation signed in November 2015. At that time the Applicant had already commenced legal proceedings with legal representation. The sick leave pay for work injuries paid by the 3rd Respondent to the Applicant was also calculated on the basis of monthly earnings of $19,800. It was only about two years later, namely in June 2017 when the Applicant filed a witness statement, that he stated for the first time that he had, apart from $19,800, an additional income of $2,125 a month. But he had never explained why there was such a difference. Therefore, this Court does not accept the Applicant’s claim that his monthly earnings were $21,925. 57.This Court finds that his average monthly earnings prior to the accident were $19,800. Liabilities 58.In light of the above findings of fact and applying the principles established by the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 (paragraph 18), on the day of the accident, under the employees’ compensation legislation, the Applicant was undoubtedly the employee of the 1st Respondent. In the present case, there are various indicia strongly pointing to the employment relationship between the two parties. They included the 1st Respondent being responsible for provision of all the tools and equipment required for floorboard work, the Applicant working on his instructions, the Applicant earning daily wages and the profits or losses that the project might make having nothing to do with the earnings he made. All of the above are typical of the mode of hiring casual workers. 59.The modes of collaboration among the 1st, the 2nd and the 3rd Respondents fall within the definition of section 24(1). This Court finds that the 3rd and the 2nd Respondents were the principal contractor and subcontractor of the project respectively. 60.In summary, the 1st, the 2nd and the 3rd Respondents are liable for the accident under employees’ compensation legislation. Quantum of Compensation 61.On the basis of the facts found, this Court finds that section 11(1)(b) is applicable in calculating monthly earnings and the amount is $19,800. This Court accepts Mr Fong’s submission that as the Applicant was employed by the 1st Respondent and other employers at the same time and the 1st Respondent was not his full-time employer, in computing monthly earnings, this Court may, under section 11(7), take into account the wages received by the Applicant from different employers at the same time: see Poon Chau Nam, paragraphs 30 and 61; Kam Yu Chuen v Siu Kin Keung DCEC 921/2011, 10 August 2012, paragraphs 12 to 14; Chan Ho Kan v Mo Man Ho DCEC 1064/2013, 8 February 2017, paragraphs 47 to 50 (contrast Cheng Po Chuen v Lee Yuet Wah DCEC 590/2008, 5 June 2009, paragraph 14). 62.As regards assessment of loss of earning capacity, this Court has considered the following. 63.In Form 9 the Applicant’s loss of earning capacity was assessed at 55%. His lawyer subsequently made enquiries of the Labour Department. The Labour Department replied in writing that the assessment board broke down the above assessment into 40% caused by burns and plastic surgery and 15% on psychiatric grounds. 64.This breakdown is obviously problematic for the reason that the “injury” assessed by the assessment board in Form 9 did not include any psychiatric illnesses or symptoms (see paragraph 3 above). Hence, it is difficult to see why there is a “new” “injury” under the breakdown. Furthermore, the assessment in Form 9 did not mention anhidrosis and hypohidrosis suffered by the Applicant. This is unreasonable because these symptoms have a great impact on the Applicant’s earning capacity. 65.This Court has accepted the assessment of the two specialists, namely 65%. However, this Court is of the view that given the Applicant’s injuries and his special circumstances, he actually would never have the opportunity of getting any job in the labour market or earning income on a self-employed basis. Thus, he basically suffers total loss of earning capacity. Hence, section 9(1A) is applicable. This Court assesses his incapacity at 100%. 66.The Applicant can go out on his own (but he moves slowly and needs to rest from time to time). His right hand can still hold heavy objects. When he attended court to give evidence, he was not seen using walking aids. Apparently, he might be fit for less physically demanding work. From this perspective, it seems that an assessment at 100% is not necessarily appropriate. 67.However, as Dr Chow said, he has five physical disabilities. He cannot squat or use his left hand. Therefore, he cannot return to floorboard work. Moreover, given the limited abduction of his left shoulder, he cannot be expected to perform general manual work. As he had been doing floorboard work for years without any other skills, coupled with the fact that he is not young and is illiterate, he cannot work as a security guard or take up posts requiring a licence or work involving writing. Furthermore, as he cannot perspire, he cannot work outdoors in hot or warm weather. Theoretically, although there are some days in winter when the temperature is below 17 oC, the temperature that the Applicant can tolerate, if one puts himself in his position, as the Applicant mostly works on a casual basis, every day he needs to consider whether the outdoor temperature is suitable before he can decide whether to work or not. How many employers can accommodate the Applicant in this way? 68.To sum up, the jobs that the Applicant can cope with are those in an air-conditioned environment which are not too physically demanding or do not involve written words and will allow him to rest from time to time and work at a comparatively slow pace. 69.This Court takes the view that in the real world, this type of work does not exist. Thus, it can be expected that the Applicant cannot work again. 70.In Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd [1991] 2 HKLR 455, the Court of Appeal confirmed that in light of the physical disabilities resulting from the accident and the Applicant’s special circumstances, in principle, where there was sufficient evidence, the court may arrive at the conclusion that the Applicant had suffered total incapacity and make an assessment at 100%. In such circumstances, under section 9(1A), the court may likewise come to the same conclusion of “permanent total incapacity” as that under section 7 (see 458H – 459A). In that case, although the assessment of the Assessment Board was only 20%, the Court of Appeal affirmed that the Applicant actually suffered a 100% incapacity. 71.In conclusion, in the present case, having taken into account the Applicant’s injuries, his age, academic qualifications, work experience and skills, this Court finds that section 9(1A) is applicable. Under the Paper Mills formula, his monthly earnings will be zero. Hence, his incapacity is 100%. 72.As for sick leave compensation, at trial, the Applicant agreed with the assessment in Form 9, namely 587 days. 73.After the accident, the Applicant underwent various operations and received a series of physiotherapy treatment in government hospitals. Account statements and receipts issued by the Hospital Authority were disclosed in the present action. The total amount comes to $3,220. He is entitled to the medical expenses under section 10A. However, as for the other items, the Applicant failed to provide receipts or other documents showing that the same had been paid, so they are not allowed. 74.Finally, the Applicant had received $31,680. This sum should be deducted from the amount of compensation. 75.In light of the above findings, the Applicant is entitled to the following compensation:-
Conclusion 76.The 1st, the 2nd and the 3rd Respondents are liable to pay compensation of $1,231,876 to the Applicant for the accident. 77.The Applicant is awarded interest on the above sum at half judgment rate from the date of the accident, namely 15 May 2015, to the date of this judgment, and thereafter at judgment rate until full payment. 78.The Applicant’s appeal in relation to Form 9 is allowed on the determination in paragraph 70 above. 79.The three respondents do pay the Applicant costs of the present proceedings, such costs to be taxed if not agreed, with certificate for counsel. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations. This should be an order nisi, to be made absolute 14 days after the date of this judgment unless an application for variation has been made.
Forest L H Fong, instructed by CMK Lawyers and assigned by the Legal Aid Department, for the Applicant The 1st and the 2nd Respondents in person, absent The 3rd Respondent in person, present Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law. |
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