Liang Liusheng v. Hong Kong Wai Lun Construction Ltd t/a Wai Lung Construction and Others

DCEC 964/2017

[2021] HKDC 495

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 964 OF 2017

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Coram: His Honour Judge H. Au-Yeung in Court

Dates of Hearing: 30 March 2021 and 19 April 2021

Date of Judgment: 29 April 2021

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JUDGMENT

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BACKGROUND

1.This is the applicant’s application for employees’ compensation made pursuant to the Employees’ Compensation Ordinance (Cap.282) (“the Ordinance”) in relation to an accident which happened on 5 May 2015.

2.The application was initially made against the 1^st respondent only.  At the early stage of these proceedings, the 1^st respondent did appear and had filed an Answer, in which it was alleged, among other things, that it was just a sub-contractor or one of the sub-contractors at the alleged place of accident.  In the Affirmation of Chan Wai Lun (director and shareholder of the 1^st respondent) which was filed together with the 1^st respondent’s Answer on 17 November 2017 (“Chan’s Affirmation”), it was further alleged that the 2^nd respondent was the 1^st respondent’s principal contractor at the place of the accident.  By reason of the aforesaid allegation, the applicant sought and was granted leave to join the 2^nd respondent as a party to these proceedings on 21 December 2018.

3.However, the 2^nd respondent had never entered appearance herein.  Worse still, the 1^st respondent had ceased to be legally represented on 5 July 2018, and had been absent from these proceedings altogether thereafter.

4.As there did not appear to be anything which suggested that any employees’ compensation insurance policy was in force in relation to the applicant’s alleged employment with the 1^st respondent, the Employees Compensation Assistance Fund Board (“the Fund Board”) applied and was granted leave to join these proceedings as the 3^rd respondent on 3 May 2019.

THE ISSUES

5.The Fund Board does not admit the applicant’s claim and has put the applicant to strict proof.  Having said that, the main query raised by the Fund Board on the question of liability is whether the applicant has successfully proved that the 1^st respondent was indeed his employer at the time of the accident. 

6.Having heard the evidence, I agree that the approach adopted by the Fund Board is sensible, because there seems to be little doubt that the applicant had suffered personal injury by accident while he was working on 5 May 2015.  There is no suggestion that the applicant was an independent contractor at the material time.  Hence, he must be an employed person at that time, and I have no hesitation in accepting that the accident must arise out of and in the course of his employment. 

7.On the question of quantum, it is undisputed that the applicant had been granted 523 days of sick leave and that he should be entitled to $2,030 as his medical expenses pursuant to section 10A of the Ordinance.  The only issues which have to be resolved herein are as follows:-

(1)  For the purposes of sections 9 and 10 of the Ordinance, what amount of monthly earnings should be adopted; and

(2)  For the purpose of section 9 of the Ordinance, what the applicant’s loss of earning capacity is.

LIABILITY – WHETHER THE 1^ST RESPONDENT WAS THE APPLICANT’S EMPLOYER

The applicant’s evidence

8.The applicant’s evidence on his employment with the 1^st respondent may be summarised as follows:

(1)  He attended an interview on 22 March 2015 through the introduction of 阿輝 (“Ah Fai” – his co-worker while he was working with another company) with 阿倫 (“Ah Lun”) at No.10 Knutsford Terrace as a causal demolition worker.  At that time, the applicant was not told the identity of his employer.  He was only told by Ah Fai that Ah Lun was the most trusted person of “the boss”.  He had heard others addressing Ah Lun as “Mr Chan”, so he knew that Ah Lun’s surname was “Chan”, but he did not know Ah Lun’s full name;

(2)  The interview was successful, and he started to work at No.10 Knutsford Terrace immediately;

(3)  Ah Lun was responsible for the allocation of work and distribution of daily wages among the workers (including the applicant) everyday;

(4)  On 23 March 2015 (i.e. the second day of his work), he was introduced to “the boss” for the first time.   Ah Lun told the applicant and other workers to address “the boss” as 友哥 (“Yau Gor”).  However, the applicant had also heard other people addressing him as 龍哥 (“Lung Gor”);

(5)  The applicant considered that while Ah Lun had much authority (and he suspected that Ah Lun was also a boss), Yau Gor was the ultimate boss to whom Ah Lun had to listen;

(6)  While Ah Lun was the one who gave instructions to the workers on a daily basis, Yau Gor attended the sites from time to time and gave instructions to the workers too.  For example, if Yau Gor considered that any of the materials to be demolished would be “useful” (I take it to mean that such materials could be resold for money), he would remind the workers to do the demolition work more carefully and avoid damaging such materials in the demolition process;

(7)  In the period between 22 March 2015 and 5 May 2015, he had been instructed by Ah Lun to work at 5 different sites (No.10 Knutsford Terrace aforementioned was the first site).  Generally speaking, the equipment and tools required to be used in the demolition work had been arranged to be delivered to the sites before the work began.  The only exception was 7 April 2015, when the applicant was instructed by Ah Lun to go to a shop known as 偉龍夜冷百貨 and pick up the equipment and tools required.  This was the first time the applicant knew about this shop;

(8)  He could recognise that the equipment and tools which he picked up from the shop 偉龍夜冷百貨 on 7 April 2015 were those which he had been using while he was allegedly employed by the 1^st respondent;

(9)  Labels with the words “林龍” written thereon were found on the larger equipment and tools used for the demolition work, whereas the smaller ones did not have such labels;

(10)  When he visited 偉龍夜冷百貨 on 7 April 2015, he found that some of the stuffs which were demolished at the site of No.10 Knutsford Terrace were put up for sale there.  Ah Fai also confirmed with him that偉龍夜冷百貨belonged to Yau Gor and that materials dismantled at the sites would be sold at the shop;

(11)  After the accident (on the same day), Ah Fai told the applicant that “the boss” would pay him (the applicant) his medical expenses and wages;

(12)  After the accident, Yau Gor instructed Ah Lun to arrange a light goods vehicle and take the applicant to see the bone-setter at 冠雄脊椎治療所 in Sham Shui Po.  Upon the applicant’s arrival in Sham Shui Po, a lady known to the applicant as “老闆娘” (Ah Fai told the applicant that she was Yau Gor’s girlfriend) and another employee accompanied him to see the bone-setter;

(13)  On 31 May 2015, when he went to seek treatment at 冠雄脊椎治療所 again, he was informed by a 廖醫師 there that “the boss” had called and instructed that no further payment would be made by the boss for the applicant’s medical expenses to be incurred.  As a result, the applicant went to 偉龍夜冷百貨 and asked 老闆娘 about this.  老闆娘 confirmed that the applicant would have to pay for himself if he sought further treatment, for “the boss” would not pay for him again.  The applicant then called up “the boss”, who disconnected his call without giving him any answer for his request for further medical payment.

9.The Notification of Accident dated 4 June 2015 (“the Notification”) which the applicant filled in had been produced as evidence.  As section B thereof on the particulars of the employer is important for our purpose, I set it out in full as follows:

10.Mr Chow for the Fund Board has cross-examined the applicant quite extensively on his understanding of the identity of “the boss”, and on the way he filled in the Notification.  The applicant’s evidence on these matters is not entirely satisfactory.  Despite the applicant’s evidence that he thought Yau Gor was “the boss”, he had put down “阿倫” in the space for “僱用公司名稱/僱主姓名”.  Further, in the space for “聯絡人姓名”, the applicant had filled in “林龍”, even though the applicant admitted that no one had ever told him that this was the name of “the boss”.

11.The applicant explained that:

(1)  At the material time, he was actually not sure what he should put down in the space for “僱用公司名稱/僱主姓名”.  That is why he had left it blank; 

(2)  However, at the right-end of the said space, he had put down “阿倫” rather than “Yau Gor” because he did not know the full name of Yau Gor;

(3)  He had put down “林龍” in the space for “聯絡人姓名” because he had assumed that “林龍” was the boss, given the boss was also known as “Lung Gor”.

12.Another unsatisfactory aspect of the applicant’s evidence is about the date of commencement of his alleged employment with the 1^st respondent.  When he was cross-examined by Mr Chow as to why he was able to state in his witness statement (signed on 18 March 2019) the exact date (22 March 2015) that he started to work for the 1^st respondent after so many years, he answered that it was because he had marked such a date on his 2015 calendar.  However, upon further enquiry, he told this court that that particular calendar had actually been thrown away for some time, and was no longer available in 2019 when the witness statement was made.

Discussion

13.Mr Chow for the Fund Board submitted that the 1^st respondent was identified and sued as the employer only because it was discovered to be the occupier of the premises at 253 Un Chau Street by its own business registration, and the premises in turn was known to the applicant because he had been asked to go there on 7 April 2015.  Mr Chow also pointed out that 偉龍夜冷百貨 was not a registered business at all.

14.While what Mr Chow submitted and pointed out may well be correct, that does not mean that the 1^st respondent could not be the applicant’s employer.  At the end of the day, the most important question is whether the applicant succeeds in establishing that the 1^st respondent was his employer.  How the applicant discovered, or started to suspect, that the 1^st respondent was his employer is not as crucial as Mr Chow suggested.

15.Having considered all the relevant evidence, I accept that the applicant has succeeded in establishing, on the balance of probabilities, that the 1^st respondent was his employer at the material time.  I will set out my reasons below.

16.Firstly, according to the applicant, the equipment and tools that were used in the demolition work were stored in 偉龍夜冷百貨 which was situated at 253 Un Chau Street.  In the business particulars of the 1^st respondent kept by the Business Registration Office, the business address of the 1^st respondent in the period between 28 March 2013 and 31 May 2016 was “G/F, 253 Un Chau Street, Shamshuipo”.  Even though no business registration of 偉龍夜冷百貨can be found at the Business Registration Office, I accept that 偉龍夜冷百貨 was a business run by the 1^st respondent.  Indeed, this was admitted by Chan Wai Lun in Chan’s Affirmation in which he stated that:

“…The Respondent was carrying out rag-and bone man business at the material time and running a thrift store located at G/F., 3 Un Chau Street, Sham Shui Po, Kowloon, Hong Kong…” (paragraph 3 thereof)

17.Secondly, I place great weight on the fact that the applicant had put down 偉龍夜冷店 and its address (253 Un Chau Street) in the box for “employer’s address” in the Notification. The form was dated 4 June 2015.  In other words, it was completed shortly after the accident.

18.Thirdly, another very important matter which I have taken into account is the enquiry made by the Legal Aid Department by letter dated 3 June 2016 with Shamrock Hotel.  By the said letter, Legal Aid Department requested Shamrock Hotel to provide it with record/information about the company which renovated the hotel in the period from 13 April 2015 to late April 2015.  I accept that the name of Shamrock Hotel and the location of the renovation work as stated in the Legal Aid Department’s letter of enquiry dated 3 June 2016 must have come from the applicant, otherwise there was no way that the Legal Aid Department would have such information.  In reply, Shamrock Hotel provided the Legal Aid Department with an invoice issued by the 1^st respondent dated 30 April 2015 (“the Invoice”), which stated that demolition work had been done in the period between 5 April 2015 and 27 April 2015.  This is partly consistent with a handwritten note which was allegedly written by the applicant within a month after the accident (“the Handwritten Note”), which, in substance, stated that work had been done at Shamrock Hotel from 13 April 2015 onwards for 18 days.  Although the work periods in the 2 documents are not entirely the same, I do not think it matters as far as liability is concerned (but it will have bearing on quantum – see further discussion below).  Neither do I think the merits of the applicant’s case on liability would be affected despite the fact that he could not explain the entity identified on the invoice, namely, 長隆工程有限公司.  This might or might not be the principal contractor of the 1^st respondent for the work at Shamrock Hotel.  However, no matter what role this company assumed, the most important thing is that the 1^st respondent did carry out demolition work at Shamrock Hotel at the material time.  This would go a long way in supporting the applicant’s case.

19.Fourthly, it is noted that the 1^st respondent pleaded the following in the Answer:

“The Respondent avers that it was a sub-contractor or one of the sub-contractors of the work/works at or about the alleged place of accident. It is not admitted that the Applicant sustained injuries as alleged in the Application…”[1].

20.In Chan’s Affirmation filed on the same day, he further confirmed that “the Respondent’s nature of work/works performed at the place of accident at the material time of the accident was removing 4 freezes for rag-and-bone man business”[2]. In other words, the 1^st respondent admitted that it was “present” at the place of accident at the material time.  It is also noteworthy that Mr Chow for the Fund Board accepted in his final submissions that there is no evidence that there was any other company involved at the site on the day of the accident.

21.Pausing here, I should emphasise that while I accept the 1^st respondent’s admission that it was “present” at the place of accident as stated in Chan’s Affirmation, insofar as it is alleged that it was only running a rag-and-bone man business, this is rejected, for this is contradicted by the Invoice, which shows clearly that it was engaged for some demolition work.  Chan Wai Lun’s allegation is also contradicted by the signboard hung at the forefront of the shop 偉龍夜冷百貨, which apparently advertised that the shop could undertake demolition work (清拆還原).

22.Fifthly, it can be seen from the webpage of 偉龍工程 and 偉龍夜冷百貨 that they were engaged in demolition work (清拆還原工程) and second-hand sale (二手買賣).  This supports the applicant’s evidence on the business of his employer.  

23.Sixthly, I accept the applicant’s evidence that his intention was to leave the box of “僱用公司名稱/僱主姓名” in the Notification blank, rather than putting forward Ah Lun as his employer, because otherwise he would not have written “阿倫” at the right-end of the box.  Furthermore, it is noted that he had put down “(負責出糧)” after “阿倫”.  This shows that the applicant was only putting down what he knew as a matter of fact.  This does not show that the applicant was considering Ah Lun was his employer.  This only tends to demonstrate that the applicant was uncertain about the matter.

24.Seventhly, the applicant’s bank statement shows that he had made a deposit of $1,000 into his account on 22 March 2015.  This is consistent with his evidence that he had started to work for the 1^st respondent on that day with a daily wage of $1,000, which was paid in cash.  

25.Eighthly, while at first sight the applicant was contradicting himself when he explained why he could put down “22 March 2015” as the first day of work with the 1^st respondent in his witness statement after such a long time (he said he relied on his 2015 calendar which he confirmed subsequently to have thrown away before he made his witness statement in 2019), I bear in mind that there was unchallenged evidence (which I accept) that he had prepared the Handwritten Note within 1 month after the accident in which he had also recorded the date of “22 March 2015” as his first day of work with the 1^st respondent.  He had all along kept the said handwritten note.  I would infer that the applicant must have made reference to the said handwritten note when he prepared his witness statement, and it is therefore not entirely incorrect for him to say that he was able to remember the date of his first day of work by reason of his having marked it on the 2015 calendar.

26.I should pause and remark here that the applicant did, when he was pressed in court on the existence of the 2015 calendar when he prepared his witness statement, change his evidence and allege that he remembered the date of his first day of work with the 1^st respondent from his own memory rather than with the aid of the said 2015 calendar.  However, I would reject this evidence. 

27.I agree that some of the applicant’s explanations on the way he filled in the Notification are difficult to understand.  I have discussed on the content of the box “僱用公司名稱/僱主姓名” above.  I would have thought it would be more reasonable for him to fill in that box with the name of 偉龍夜冷百貨, or at least put down Yau Gor’s name there, given the applicant’s confirmation that he believed that Yau Gor was a person to whom even Ah Lun had to listen.  The applicant’s explanation, that he did not put down Yau Gor’s name there because he did not have Yau Gor’s full name, is unreasonable, because he did not have the full name of Ah Lun either.  Although he said he knew Ah Lun’s surname, that did not change the fact that he did not have his full name.  Further, at the end of the day, he did not put down “Chan” as part of Ah Lun’s name anyway. Therefore, whether he had the full name or not was neither here nor there.

28.Further, in the space for “聯絡人姓名”, the applicant had filled in “林龍”.  During cross-examination, he admitted that he had treated “林龍” and Yau Gor as the same person.  However, it was only the applicant’s speculation that the name of the boss was “林龍”.  No one had ever told him about this.  He had this speculation purely because of the labels stuck to some of the equipment and tools.  It is difficult to understand why he did not put down “Yau Gor” in the box, given this was a name which Ah Lun used when he introduced “the boss” to the applicant.

29.Be that as it may, I do not think the above would be adequate to cast doubt on the applicant’s case that the 1^st respondent was his employer.  While the applicant was quite confusing in some of his evidence, it seems to me what he was confused about was the identity of the ultimate owner of the 1^st respondent.  Indeed, it may be recalled that Chan Wai Lun, in his affirmation, has described himself as the director of the 1^st respondent.  It is also shown by the company search record of the 1^st respondent that Chan Wai Lun was the sole director and 100% shareholder of the 1^st respondent as at 20 January 2018.   In other words, on the face of it, there was no other registered shareholder or director.  Judging from his surname “Chan” and his name “Lun”, it is possible that this Chan Wai Lun is “Ah Lun”.   But if he is really “Ah Lun”, then who could Yau Gor be?  This is a matter which this court cannot resolve, as there is no further evidence adduced thereon.  Hence, the identity and capacity of Yau Gor is a mystery.  However, in my view, it is not necessary for this court to find out the identity of the ultimate owner(s) of the 1^st respondent.    

30.Further, it should be remembered that the 1^st respondent did not plead in its Answer nor did it allege in Chan’s Affirmation that it had sub-contracted its work to another contractor.  Mr Chow for the Fund Board had also not suggested to the applicant during cross-examination that he might have been employed by Ah Lun, Yau Gor or Lung Gor personally.  Mr Chow had also fairly accepted in his final submissions that there was no evidence that there was anybody else undertaking business at the sites at the material time.

31.Hence, the 1^st respondent should be liable to the applicant for employees’ compensation as the applicant’s employer.

32.On the other hand, despite the 1^st respondent’s plea in its Answer that the 2^nd respondent was the principal contractor at the place of the accident, there is absolutely no evidence in support of this other than Chan’s Affirmation.  As Chan Wai Lun has not attended the trial for cross-examination, I will not give any weight to his Affirmation in this regard.  Under these circumstances, the applicant’s claim against the 2^nd respondent is dismissed.

QUANTUM

Section 9 compensation – amount of the applicant’s monthly earnings

33.Section 11(1) of the Ordinance provides that:

“Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings—

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

34.Parties agreed that in the circumstances of the present case, the applicant’s earnings for the month of April 2015 should be adopted as his monthly earnings for the purpose of calculating his compensation.

35.It is undisputed that the applicant was employed as a casual worker at the material time.  I accept that he was earning $1,000 daily wages at the time of the accident. The only question is the number of days that he had worked in the month of April 2015.

36.In this regard, paragraph 5 of the applicant’s witness statement is important because he has compiled a table therein which allegedly shows the number of working days during his employment with the 1^st respondent.  I quote the relevant part of the table as follows[3]:

Work period	Location	Total number of working days
22 March – 5 April 2015	Knutsford Terrace	15 days
7 April – 11 April 2015	Tai Hang Road	4 days
13 April – 28 April 2015	Shamrock Hotel	16 days
29 April – 3 May 2015	Tai Hang Road	5 days

37.Taking the working days in March and May 2015 away, the applicant’s case would be as follows:

Work period	Location	Total number of working days
1 April – 5 April 2015	Knutsford Terrace	5 days
7 April – 11 April 2015	Tai Hang Road	4 days
13 April – 28 April 2015	Shamrock Hotel	16 days
29 April – 30 April 2015	Tai Hang Road	2 days

38.It can be seen that the applicant’s case is that he had worked for a total of 27 days in April 2015.  The Fund Board disputed such a case, and asserted that he probably had only worked for 23 days or at most 25 days on the following grounds:

(1)  The applicant had only worked at the Shamrock Hotel site for 14 instead of 16 days;

(2)  It is not unreasonable to expect that there might be a break of a day or two in between the projects and the applicant might have taken a day or two off here and there.

39.I reject the second argument right away for it is pure speculation.  It is noted that the applicant’s immediate family was still living in the Mainland at the time of the accident and he was all by himself in Hong Kong.  I accept his evidence that his two children were still attending schools in the Mainland at that time.  The applicant also told the experts during the joint medical assessment on 25 July 2019 that his wife was a housewife.  There is no reason why I should not accept that.  In these circumstances, it is reasonable to expect that the applicant would be working hard in Hong Kong in the hope of earning more for his family members.  There is nothing to suggest that he had taken any extra day off apart from the normal weekly rest days, and it is understandably so.

40.However, I think the Fund Board has a point in relation to its first argument.

41.To explain the reason why I accept the Fund Board’s challenge, it is necessary to set out the content of part of the Handwritten Note as follows:

“4月13號佐敦 新樂酒店 工作18天 地下1樓全層
	休息一天
4月29大坑道業興街英基工業中心地下
	工作五天”

42.When the applicant was initially cross-examined on the words “休息一天” at the Shamrock Hotel entry in the Handwritten Note, he told this court that he had rested for not only one day but two days.  However, when the applicant was reminded that there were only 16 days in total in the period between 13 April and 28 April, the applicant stated that he had counted 12 April as his rest day, and that if that day should not be counted, then he should be taken to have rested for 1 day only.  When this court further pointed out to the applicant that, if he had taken one day’s leave in the period between 13 April and 28 April, then he could only have worked for 15 days but not 16 days as stated in his table, the applicant changed his evidence and alleged that because the schedule of this project was tight, he had taken no leave at all while the work at Shamrock Hotel was ongoing.

43.I am of the view that the applicant was trying to defend his case that he had worked for 16 days at Shamrock Hotel at all costs and he had no hesitation to change his evidence for that purpose.  His oral evidence in this regard is therefore incredible and I reject it.  I would accept what he had jotted down in the Handwritten Note in that he had taken 1 rest day while the work was ongoing at Shamrock Hotel.

44.It is noted that while no end date was marked in the Handwritten Note in relation to the demolition work done at Shamrock Hotel, it can be seen from the above excerpt that all that it was known was that the next project started on 29 April 2015 in an industrial building located at Tai Hang Road.  Perhaps it was for this reason that the end date for the Shamrock Hotel project was stated to be 28 April 2015 in the applicant’s witness statement.  However, this is contradicted by the Invoice which was provided by Shamrock Hotel, in which it was stated by the 1^st respondent that the work period was only up to 27 April 2015.  I prefer this piece of evidence rather than the applicant’s evidence in this regard.

45.By reasons of the above, I find that the work period at Shamrock Hotel was from 13 April 2015 up to 27 April 2015, during which the applicant had taken 1 day off.  Hence, he had only worked for 14 days there.  Therefore, his total number of working days in April 2015 was 25 days.   

46.The applicant’s monthly earning for the month of April 2015 was therefore $25,000 ($1,000 x 25).

Section 9 compensation – loss of earning capacity

47.The next question which this court has to consider is the applicant’s appeal against the Certificate of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board on 23 November 2016, in which the applicant’s permanent loss of earning capacity was assessed at 3%. His injury was described as “right heel injury resulting in right heel pain and stiffness” in the said Form 7.

48.It is trite that an appeal under section 18 of the Ordinance in fact is not an appeal proper, because the Assessment Board does not give any reasons for its assessment and the court hearing the appeal has to form its own view by reference to all the evidence, and in particular the medical evidence, in arriving at its conclusion as to the permanent loss of earning capacity and the period of temporary total incapacity resulting from the injury.  In Chan Kit v Sam Wo Industrial Manufactory[4], Hunter JA, who gave the judgment of the Court of Appeal, said:-

“… the court’s jurisdiction appears to beappellate. But one has then to remember that these Boards are acting ontheir own knowledge. They hear no evidence. They keep no record. Theygive no reasons. So that they provide no material which explains the basisof their approach. They only produce a result. Although the procedure byway of appeal may be properly so described in order to bring about areversal of their decision if the court is so minded; it is plain that a Courtapproaching this matter has really got to start afresh.”

49.The paragraph quoted above had been referred to by the Court of Appeal in Tsang Kwong Tong v Tennille Decoration & Design Limited & Others (CACV 42/2006, unreported, 10 October 2006), in which Tang JA (as his Lordship then was) added:

“Where no reasons are given by the Board, as is usually the case, the court hearing an appeal under section 18 ought not to speculate and ‘can only judge an assessment by testing the validity of its conclusions against the total available evidence’ (Chan Kam v. Standard Chartered Bank Hong Kong Trustee Ltd., supra. at 458)” (at paragraph 47).

50.In Chu Chin Yiau v Ray On Construction Co Ltd [5], Deputy District Judge Bharwaney (as his Lordship then was), also said:

“In fact, whether an appeal is lodged pursuant to s 18(1)or application made for compensation under s 9 or, indeed, both proceduresresorted to at the same time, it is clear that a court approaching the matterhas to start afresh, relying not only on the certificate of the Board but alsoon any other evidence, especially medical evidence, adduced before it toassess the loss of earning capacity permanently caused by the injurysuffered in an accident at work (Chan Kit v Sum Wo Industrial Manufactory[l989] 2 HKLR 230 at 233 and Yip Fong Ming v Joint-Effort EngineeringCo & Anor(ECC 128/88, 17 May 1989 p 3, unreported)).”

51.With the above in mind, I now turn to the evidence adduced in the present case.

52.How the applicant was injured on 5 May 2015 is undisputed.  The applicant was doing demolition work at the material time.  He was standing on an A-ladder and using an iron-bar to pry open a wooden plank at the ceiling.  The ladder suddenly moved, and as a result, the applicant lost balance and fell down with his right foot landing on the ground first.

53.In the Joint Medical Report dated 3 November 2019, Dr Chan Sai Keung concluded that:-

“Mr Liang is estimated to have 5% whole body impairment for his residual right heel pain and deformity resulted from the captioned accident. In view of his job requiring frequent standing and exertion of his lower limb, his loss of earning capacity is assessed to be 8%.” [6]

54.Dr Chan supplemented as follows in his further report dated 26 May 2020:

“According to the AMA Guide 5^th Ed, 100% lower limb impairment equal to 40% whole person impairment.

12.5% lower limb impairment will be equal to 5% whole person impairment. (I assessed Mr. Liang has 5% whole person impairment)

According to the Employee’s Compensation Ordinance, whole lower limb amputation equal to 80% LOEC. 12.5% lower limb impairment equal to 10% LOEC.

In view of his present condition, LOEC is assessed to be 8%.”

55.Dr Lee Po Chin, on the other hand, opined in paragraph 9.9 of the Joint Expert Report that:-

“Employing the guideline in the 6^th edition of the ‘Guide to the Evaluation of Permanent Impairment’ published by the American Medical Association, for intra-articular fracture of the calcaneum healed with slight deformity but good range of subtalar movements, the impairment of the lower extremity is 7% and the whole person impairment is 3%. The loss of earning capacity is 4%.”

56.Surveillance evidence shows that the applicant was having a normal gait in July 2019.  He had no problem walking upstairs at all even without using handrails.  The applicant also emphasised in court that he could walk upstairs without any problem.   However, the applicant said he would have to walk slower if he was going downstairs.  Further, according to him, his main problem was in climbing up A-ladders.  He explained that because the rungs of A-ladders are narrower, he has to tiptoe if he climbs up such ladders, which would exert much force to his heels and cause much pain.  As a result, he cannot climb up A-ladders anymore, and for this reason, he had been rejected in a job interview, in which he was required to climb up an A-ladder.

57.I do not accept the applicant’s evidence in this regard for the following reasons:

(1)  I do not understand why, while the surveillance video shows that the applicant had no difficulty in walking upstairs with steps which were so narrow that only the front part of his soles could land on those steps, he could not climb up A-ladders.  It should also be noted in particular that there are only a few steps on each A-ladder;

(2)  The applicant’s explanation that he could not tiptoe while he was climbing up A-ladder is rejected.  First of all, there is no need to tiptoe at all.  He could step on the rungs by using the middle part of his soles.  Furthermore, even if he had to tiptoe, it is evident that he could do it even though he had a mild limp on the right side. He could also walk on heels (see paragraph 5.1 of the Joint Expert Report).     

(3)  I reject the applicant’s evidence that he had been asked by a potential employer to climb up an A-ladder while he was interviewed for a job, and that as a result of which he was not offered the job, because I do not accept that the potential employer would have asked him to do such a simple task in the interview, given his evidence that that potential employer did not know that he had ever been injured.

(4)  When assessing the applicant’s credibility, I have taken into account his tendency in changing his evidence so as to defend his case, as demonstrated when he gave evidence on the number of days working at Shamrock Hotel and the reason why he could remember the date of his first day of work with the 1^st respondent.  

58.Dr Chan, for unknown reason, has relied on the 5^th edition of the Guide to the Evaluation of Permanent Impairment although the 6^th edition was already published by the time the Joint Expert Report was prepared.  Furthermore, as explained above, I do not accept that the applicant’s condition was as bad as he proclaimed to be. 

59.Having considered the assessment afresh, I would allow the applicant’s appeal, but I would accept Dr Lee’s opinion and assess the applicant’s loss of earning capacity at 4% only.

Section 9 compensation – calculation

60.It is undisputed that the applicant was 51 years old at the time of the accident and therefore the applicable multiplier is 72 for the purpose of section 9 of the Ordinance.

61.Therefore, section 9 compensation is assessed at $72,000.00 ($25,000 x 4% x 72).

Section 10 compensation

62.As aforesaid, it is undisputed that the applicant had been given sick leave for a total of 523 days.

63.I therefore hold that section 10 compensation should be assessed at $348,666.67 ($25,000 x 4/5 x 523/30).

Section 10A compensation

64.As mentioned at the beginning of this Judgment, section 10A compensation has been agreed at $2,030.00.

ORDER

65.By reasons of the aforesaid, I make the following order:

(1)  There be judgment against the 1^st respondent in the sum of $422,696.67 ($72,000.00 + $348,666.67 + $2,030.00).

(2)  There be interest on the said judgment sum at half of the judgment rate from the date of the accident until the date of judgment and thereafter at judgment rate until payment.

(3)  The applicant’s application against the 2^nd respondent be dismissed.

COSTS

66.I make a cost order nisi that:

(1)  There be no order as to costs between the applicant and the Fund Board, and between the applicant and the 2^nd respondent;

(2)  The 1^st respondent shall bear the costs of the applicant and of the Fund Board (including all costs reserved, if any), with certificate for counsel, to be taxed if not agreed. 

(3)  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations. 

67.The above order nisi shall become absolute in the absence of application to vary within 14 days hereof.  Any such application shall be made by letter to the court, and, with the consent of the applicant and the Fund Board[7], shall be dealt with on papers.

Mr Alex Lai, instructed by Legal Aid Department, for the applicant

The 1^st and 2^nd respondents were not represented and did not appear

Mr Tony HH Chow, instructed by P. C. Woo & Co., for the 3^rd respondent