Cheung Sun Fat Jacky v. Lam Shing Yan t/a Wai Leung Decoration Engineering Co
Read the full judgment text of DCEC 870/2017 on BabelCite. This District Court judgment was delivered on 9 August 2021.
1. This is the trial of an application by the Applicant under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ ECO ”) for compensation for a wrist injury which he suffered by reason of an alleged accident (the “ Accident ”) which is said to have occurred at around 11:30 a.m. on 10 June 2015 when the Applicant was working for the Respondent at Room A and Platform on 20/F, Tung Shing Building, 24 Ship Street, Wan Chai (the “ Ship Street Premises ”).
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DCEC 870/2017 [2021] HKDC 939 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMMENSATION CASE NO. 870 OF 2017 -------------------- IN THE MATTER OF AN APPLICATION BETWEEN
--------------------- Before: Deputy District Judge Sara Tong in Court Date of Hearing: 20 and 22 July 2021 Date of Judgment: 9 August 2021 -------------------- JUDGMENT -------------------- A. INTRODUCTION 1.This is the trial of an application by the Applicant under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”) for compensation for a wrist injury which he suffered by reason of an alleged accident (the “Accident”) which is said to have occurred at around 11:30 a.m. on 10 June 2015 when the Applicant was working for the Respondent at Room A and Platform on 20/F, Tung Shing Building, 24 Ship Street, Wan Chai (the “Ship Street Premises”). 2.The following matters are not in dispute:-
3.The Applicant’s case is that he was instructed by the Respondent to work at the Ship Street Premises on the day of the Accident. At the time of the Accident, he was installing corner clamps (角碼) to a wall-mounted cabinet (the “Cabinet”) as support, and had to use a wooden A-shaped ladder with 5 rungs (the “Ladder”). The nylon string connecting the two sides of the Ladder snapped which caused him to fall from the Ladder and resulted in the Injury. The Applicant was alone at the Ship Street Premises at the time when the Accident happened. 4.The Respondent’s position is that the Applicant did not work at the Ship Street Premises on 10 June 2015 and his Injury was not related to his employment with the Respondent. The Respondent denied having instructed the Applicant to work on that day and alleged that he specifically informed the Applicant on 9 June 2015 that there was no work for him on 10 June 2015. 5.In the Respondent’s Answer filed on 2 May 2018, he also included a counterclaim for a full refund of all sums that he paid to the Applicant in the event that the Applicant was found not to have proved his claims herein. However, Ms. Julia Lau (Counsel for the Respondent) confirmed to this Court that the Respondent does not pursue this counterclaim. In any event, no counterclaims are allowed in an employees’ compensation action: Wong Kai Yung v Chief Construction Co Ltd & Anor [2017] 3 HKLRD 142, at paragraphs 27-42. 6.Ms. Lau also informed this Court during opening submissions that if the Court finds against the Respondent on the question of liability, the Respondent will accept the quantum of compensation claimed by the Applicant. B. ISSUES FOR DETERMINATION 7.Section 5(1) of the ECO provides that:
8.In the present case, on the question of liability, the issue to be determined by this Court is whether the Applicant has proved, on a balance of probabilities, that he was working at the Ship Street Premises on 10 June 2015 and sustained the Injury whilst working at the premises as alleged. 9.Ms. Lau contended in closing submissions that the proper question should be whether the Applicant was instructed by the Respondent to work at the Shop Street Premises. 10.In my view, both questions are relevant and should be considered by this Court. Whereas the important question for the purpose of section 5(1) ECO is whether the Accident arose out of and in the course of the Applicant’s employment with the Respondent, section 5(4)(b) of the ECO specifically provides as follows:
11.Hence, if the Applicant’s version of events is found to be true i.e. he was installing corner clamps on the Cabinet at the Ship Street Premises, and the Accident happened whilst he was doing so, the Accident would, applying section 5(4)(b) of the ECO, be deemed to have arisen out of and in the course of his employment even if the Applicant acted without instructions from the Respondent. 12.However, as Mr. Peter Wong (Counsel for the Applicant) fairly accepted, given the dispute between the parties as to whether the Applicant was specifically instructed by the Respondent not to work on 10 June 2015 (as alleged by the Respondent), a finding by this Court on such issue will go to the overall assessment of the credibility of the parties’ respective versions of events. C. LEGAL PRINCIPLES 13.The determination by this Court of the disputes of facts between the parties in this case turns largely on the credibility of the evidence given by the factual witnesses. 14.In assessing the credibility of a witness, DHCJ Au (as he then was) said in Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513 at 524:-
15.The relevant principles in assessing the creditability of witnesses were also summarized by B. Chu J in Ip Fung Kuen v. Sam Kee Frozen Meat Company Limited & Ors (unreported, HCA 1897/2009, 6 April 2016) at paragraphs 65-80:-
16.The evidence of the factual witnesses in the present case will be assessed with the aforesaid principles in mind. D. ASSESSMENT OF EVIDENCE 17.The Applicant and the Respondent have put forward different versions of events, particularly as to what happened on 9-10 June 2015. D1. The Applicant’s Evidence 18.In support of the Applicant’s case, only the Applicant himself gave evidence. The Applicant’s evidence on the pertinent events can be summarised as follows:
D2. The Respondent’s Evidence 19.The Respondent himself gave evidence at the trial. Mr. Tsang (who was still, at the time of the trial, under the employment of the Respondent) also attended trial to give evidence in support of the Respondent’s case. 20.The following is a summary of the evidence given by the Respondent in respect of the pertinent events:
21.As regards Mr. Tsang, his evidence is in summary that:
D3. Evaluation of the parties’ evidence Whether the Respondent instructed the Applicant to work at the Ship Street Premises on 10 June 2015 22.First, the only available contemporaneous documentary evidence which may shed light on whether the Applicant was instructed by the Respondent to work at the Ship Street Premises or whether he was working at the Ship Street Premises on 10 June 2015 at the time of the Accident is:
23.Mr. Wong submitted that since the WhatsApp Message was sent on 9 June 2015, “明天” must mean 10 June 2015, and hence, the Respondent clearly instructed the Applicant to work at the Ship Street Premises on 10 June 2015, which is also consistent with the Logbook. 24.On the other hand, during examination-in-chief, the Respondent gave evidence for the very first time that because the message was sent in the small hours of 9 June 2015, when he said “明天見” he actually meant 9 June 2015 and not 10 June 2015. In support of the Respondent’s account, Ms. Lau relied on the fact that the Applicant was calling the Respondent between 0:48-0:50 a.m., two minutes before the WhatsApp Message was sent. Ms. Lau submitted that it was obvious that the Applicant and the Respondent were discussing work arrangements for 9 June 2015 rather than 10 June 2015. In my view, the aforesaid phone calls do not assist the Respondent because there is no evidence on what they were about. 25.To challenge the Respondent’s account, Mr. Wong referred the Court to the Logbook, which showed that “阿勇” worked at “小西灣” on 10 June 2015 but not on 9 June 2015. In that light, it was submitted that since the WhatsApp Message also stated that “阿勇” worked at “小西灣” tomorrow, “tomorrow” (明天) should be referring to 10 June 2015. 26.When being cross-examined on this point, the Respondent stated for the first time that in the morning of 9 June 2015, another worker “阿明” who was supposed to work at “青衣” informed the Respondent by Whatsapp message that he was unavailable, and hence the Respondent asked “阿勇” to work in “青衣” instead of “小西灣” that day. However, this purported explanation was never mentioned in the Respondent’s witness statement, or in his supplemental witness statement (leave for which was given to be adduced on the first day of trial). The alleged Whatsapp message from “阿明” was also never produced as evidence in this action. I do not accept this belated explanation on the part of the Respondent to be credible and I reject it. In any event, in Ms. Lau’s closing submissions, she did not seek to rely upon this explanation from the Respondent. 27.Instead, Ms. Lau took issue with the approach of reading the WhatsApp Message together with the Logbook for the reason that the Logbook was a record made subsequently by the Respondent for calculating wages. I do not see how the fact that the entries of the Logbook were recorded by the Respondent subsequently should prevent the Court from considering it as against other contemporaneous evidence which would shed light on whether the Applicant was working at the Ship Street Premises on 10 June 2015. 28.Ms. Lau also invited this court to ignore the part of the WhatsApp Message concerning “阿勇” for the reason that the message was between the Applicant and the Respondent and should not be taken as evidence relating to other workers. I cannot accept such submission. The WhatsApp Message is relevant and probative in that it reflected the Respondent’s own arrangement as to his employees’ work duties and work location at the material time. Without any suggestions from the Respondent that the WhatsApp Message was inaccurate, there is no reason for this Court to disregard the Whatsapp Message even though it mentioned a third party. 29.For the above reasons, I agree with Mr. Wong that the Whatsapp Message was an instruction from the Respondent to the Applicant that he should work at the Ship Street Premises on 10 June 2015. 30.Second, it is a major feature of the Respondent’s case that he called both the Applicant and Mr. Tsang in the evening of 9 June 2015 and (i) instructed the Applicant not to go to work the next day, and (ii) instructed Mr. Tsang to purchase lighting in Shenzhen the next day. 31.Mr. Tsang also confirmed in his evidence that (i) the Respondent did call him on 9 June 2015 when he was about to finish work and instructed him to buy lighting in Shenzhen the next day; and (ii) the Applicant also said to him on 9 June 2015 that he did not have to work the next day, and hence could give him a lift to Sheung Shui in his car that evening. 32.However, the aforesaid evidence of the Respondent and Mr. Tsang is flatly contradicted the telephone record of the Respondent (the “Telephone Record”). Both calls, which were allegedly made by the Respondent to Mr. Tsang’s phone (no. 61867687) and the Applicant’s phone (no. 98305260) in the evening of 9 June 2015 around 6pm when they were about to finish work, were not shown on the Telephone Record. In particular, according to the Telephone Record, the last call made by the Respondent to the Applicant on 9 June 2015 was at 12:11 p.m.. Although there were incoming calls to the Respondent’s phone in the late afternoon of 9 June 2015 shown on the Telephone Record, it is not the Respondent’s evidence that he received calls from Applicant/Mr. Tsang, and in any event, the Telephone Record does not show the identity of incoming callers. When confronted in cross-examination, the Respondent had no answer to this. 33.I therefore find that the Respondent did not inform the Applicant when he was about to finish work on 9 June 2015 that he did not have the work the next day. 34.Third, under cross-examination, the Respondent could not recall what stage the decoration works at the Ship Street Premises was at on 9 June 2015 (the day before the Accident), what work the Applicant was doing at the Ship Street on 9 June 2015, or why he allegedly told the Applicant he did not have to work on 10 June 2015. 35.I do not find that the Respondent’s evidence that the installation of the Cabinet had been completed by 9 June 2015 to be credible. No photographs of the state of the Cabinet on 9 June 2015 were produced. However, according to photographs taken on 27 May 2015, the Cabinet door was not yet installed, the tiles beneath the Cabinet had not yet been mounted, and on the Respondent’s own evidence, by 10 June 2010, the Hydraulic Lift was also not yet installed. 36.Fourth, in advancing the Respondent’s case, Ms. Lau drew the Court’s attention to the fact that the Applicant was working alone at the Ship Street Premises at the time of the Accident. Relying upon the Applicant’s testimony that he usually worked together with other workers at the Ship Street Premises, Ms. Lau questioned that if there was indeed work to be done at the Ship Street Premises in the morning of 10 June 2015, why there were no other employees apart from the Applicant at the premises. I do not accept this submission. It does not follow from the Applicant’s evidence that the Respondent’s employees necessarily worked together as a group. In fact, the Logbook clearly showed that the Respondent’s employees, including the Applicant, sometimes had to work at the Ship Street Premises alone (for example, on 7 and 13 May 2015, the Applicant worked at the Ship Street Premises alone) . 37.For the above reasons, I am of the view that the evidence of the Respondent and Mr. Tsang that the Applicant was specifically instructed by the Respondent that he did not have to work on 10 June 2015 cannot be reconciled with the contemporaneous documentary evidence and is inherently improbable, and I reject such evidence. 38.Taking into account the Applicant’s testimony and the available contemporaneous documentary evidence, I find that the Applicant has proved on the balance of probabilities that he was instructed by the Respondent to work at the Ship Street Premises on the day of the Accident. Whether the Applicant was working at the Ship Street Premises at the time of the Accident and installing corner clamps on the Cabinet 39.The Applicant’s evidence is that he was installing corner clamps to the Cabinet for its support at the time of the Accident, whereas the Respondent denies this and contends that no corner clamps were necessary for supporting the Cabinet, and that the Applicant telephoned him on 10 June 2015 at around 10:38 a.m. to tell him that he would be obtaining a Hydraulic Lift from a nearby shop in Wanchai and bring it to the premises to see if it would fit the door of the Cabinet. 40.First, as regards the Applicant’s scope of duties, the Respondent’s case is that only the Respondent and Mr. Tsang were involved in the installation of the Cabinet, whereas the Applicant contends that he was involved in the installation of the Cabinet. I do not consider the evidence of the Respondent and Mr. Tsang to be convincing and I accept the evidence of the Applicant:
41.In the premises, I have no hesitation in finding that the Applicant’s duties included the installation of the Cabinet. 42.Second, as between the two competing versions of events as to what happened on the morning of 10 June 2015, Ms. Lau submitted that the Applicant’s account that he was installing corner clamps onto the Cabinet is improbable because: (i) it was not necessary to use any corner clamp to support the Cabinet; (ii) no corner clamp had been used in securing the Cabinet in its completed state; and (iii) the installation of a corner clamp onto the Cabinet would be visible and hence approval would be required from the owner of the premises (Mr. Au-Yeung). 43.I do not consider that the above factors highlighted by Ms. Lau necessarily undermine the inherent probabilities of the Applicant’s version of events. During cross-examination, the Applicant explained that installing the corner clamp to support the Cabinet was his own decision, rather than a specific instruction from the Respondent. He thought it necessary because he observed that there was an electric box with cables near the top right corner of the Cabinet and no bolts could be used there (which accords with the photographs). It is not in dispute that corner clamps were not installed by the Applicant on 10 June 2015 before the Accident happened. The fact that no corner clamps were installed subsequently and it was decided that the kitchen wall underneath the Cabinet (which was part of the design) was sufficient to provide support to the Cabinet (according to the Respondent’s evidence) does not, in my view, undermine to any significant extent the Applicant’s version of events that he did try to install the corner clamp on 10 June 2015 before the accident occurred. There may have been different views taken at different times as to how support for the Cabinet could be provided. 44.As to the need for seeking the owner’s approval before any corner clamp could be installed, I note that this was only the assertion of Mr. Tsang given during his oral evidence at trial, without support from the Respondent, who was the employer and the point of contact with the owner. This allegation was also never mentioned in the witness statements of the Respondent and Mr. Tsang and not put to the Applicant in cross-examination. I therefore do not consider that such belated assertion by Mr. Tsang should be accorded any significant weight. 45.Third, Ms. Lau also argued that the Applicant’s evidence on installing corner clamps is inconsistent with his pleaded case, namely he was instructed to “install a cabinet”. However, I agree with Mr. Wong that “install” is wide enough to encompass work to be done to give support to the Cabinet. That the term “install” (“安裝”) was used by the Applicant in this broad sense is also clear from his witness statement where he described the installation of the corner clamp as an issue relating to the installation of the Cabinet (“木吊櫃安裝的問題”). 46.Fourth, Ms. Lau also sought to impugn the credibility of the Applicant’s evidence by pointing to his failure to mention the installation of corner clamp in both the Form 2 dated 22 June 2015 and his signed declaration to the Labour Department dated 1 August 2015. I do not consider that the omission to mention in those documents what precise carpentry work the Applicant was doing when the Accident happened undermines the Applicant’s evidence. The purpose of those documents was to assist the Labour Department to investigate into the matter, and the cause of the Accident was already stated, namely that the Applicant fell down from a ladder, resulting in the Injury. What precise work on the Cabinet the Applicant was doing at the time of the Accident does not appear to be material for such purpose. 47.For the above reasons, I do not consider that the Applicant’s evidence that he was working at the Ship Street Premises and installing corner clamps on the Cabinet when the Accident occurred can be impugned in any material respect. Other miscellaneous issues raised by the Respondent to impugn the Applicant’s evidence 48.For completeness, I will address below some other miscellaneous issues raised by Ms. Lau to impugn the Applicant’s evidence. 49.First, Ms. Lau submitted that the Applicant’s suggestion that he called the Respondent in the morning of 10 June 2015 to discuss what brand of “油壓臂” the owner of the premises (Mr. Au-Yeung) wished to use contradicted his witness statement where he stated that he knew nothing about the use of “hydraulic lift” or “液壓升降裝置” for the renovation at the Ship Street Premises. However, the Applicant explained that although he was familiar with the term “油壓臂” by its Chinese name, he could not understand English and did not associate the English phrase “hydraulic lift” used by the Applicant with “油壓臂”. I accept the Applicant’s explanation. Throughout his witness statement, the Applicant described “hydraulic lift” as “重型機械” or “液壓升降裝置” whereas the term “油壓臂” used by the parties in this trial refers to the small device which is used to control the opening of a cabinet door. Therefore, I am satisfied that the Applicant had genuinely misunderstood the meaning of “hydraulic lift” when preparing his witness statement. 50.Second, Ms. Lau pointed to the Applicant’s failure to take photographs of the Ladder and its broken nylon string after the Accident happened as somehow casting doubt on the credibility of his version of events. I disagree that any adverse inference can be drawn against the Applicant for his failure to take photographs of the broken Ladder immediately after the Accident, especially when he had just suffered the Injury to his wrist. In fact, the Respondent himself also did not inspect the Ladder or take any photographs of the scene when he inspected the Ship Street Premises after the Accident. 51.Third, during cross-examination of the Applicant, Ms. Lau referred to the Applicant’s travel record which showed that the Applicant only arrived back in Hong Kong on 10 June 2015 at 09:55 a.m. through Lo Wu security control point. She questioned whether it was possible for the Applicant to arrive at the Ship Street Premises at around 10:40 a.m. as he alleged, taking only 45 minutes or so in travelling time including parking his car. There appears to be no concrete basis for the Respondent to argue that it would have been impossible for the Applicant to have done so. In any event, as Mr. Wong submitted, these contentions do not assist the Respondent in circumstances where even on the Respondent’s own case, the Applicant did return to the Ship Street Premises in the morning of 10 June 2015 in order to create the impression that he sustained the Injury inside, by laying the Ladder onto the floor. 52.Fourth, Ms. Lau submitted that it was odd for the Applicant to call Mr. Tsang and tell him about his injury immediately after the Accident, given that Mr. Tsang was in Shenzhen and could not possibly offer him any help anyway. The Applicant explained that he treated Mr. Tsang as a friend, and therefore called him to inform him of the Accident. In my view, if the Accident indeed happened during his work at the Ship Street Premises, there was nothing unusual for the Applicant to immediately inform Mr. Tsang, who he had known since secondary school, and with whom he closely worked. The call to Ms. Tsang cannot in any way undermine the Applicant’s evidence. 53.Fifth, during cross-examination, the Applicant accepted that paragraph 3.1 of his witness statement, which stated that at 11:30 a.m. on 10 June 2015, the Respondent instructed him to install the cabinet and gave him a wooden ladder to do so, was incorrect and a mistake. As the Applicant clarified, the Respondent did not specifically instruct him to install the cabinet at 11:30 am that day and the wooden ladder was in fact left by the Respondent in the Ship Street Premises for the Applicant’s use at all times. Given that the Applicant has all along been legally represented, it is unsatisfactory that there was such mistake in his witness statement which was not corrected before he was cross-examined. However, even taking this mistake into account, and taking into account the contemporaneous documentary evidence, viewed against the inherent improbabilities of the Respondent’s version of events (as set out in paragraphs 55 to 61 below), I still consider the Applicant’s version of event to be inherently more probable that the Respondent’s version. 54.Sixth, Ms. Lau also criticized the Applicant’s evidence for failing to explain why he suddenly changed his plan in the morning of 10 June 2015 and decided not to return to Hong Kong with Mr. Tsang. Ms. Lau further criticized that the Applicant failed to explain why he had to return to work on 10 June 2015.
Inherent improbabilities of the Respondent’s version of events 55.There are also a number of inherent improbabilities as to the Respondent’s version of events, which, in my view, casts serious doubt on the credibility of his evidence. 56.First, according to the Respondent, it was highly suspicious for the Applicant to have called him so many times on the morning of 10 June 2015 to report on what he was doing.
57.Second, the Respondent’s evidence is that he found it suspicious as to why the Applicant had to use a ladder if he was only performing a trial installation of the Hydraulic Lift. The Respondent produced photos to show that this could have been done by merely standing on the ground. He also stated that the Applicant could not possibly have been standing on the 5th rung of the ladder, which was only 4 ft 2 inches from the ceiling. However, the Applicant explained that he was installing a corner clamp on the Cabinet, and in doing so, he was standing with one foot on the 4th rung and one foot on the 5th rung with his upper body bent over to reach the back of the Cabinet. This explanation from the Applicant is consistent with the photographs produced by the Respondent as regards the position of the Cabinet and the height of the Ladder. 58.Third, what is more significant is that if the absurdity of the Applicant’s recount of the Accident was so obvious to the Respondent (which he now contends to be the case), he must have realized this at the material time in June 2015 and would have confronted the Applicant immediately. However, the Respondent willingly paid the Applicant sick leave payment until January 2016. 59.In fact, the Respondent himself returned to the Ship Street Premises on 10 June 2015 shortly after the Applicant informed him of the Accident, apparently to check if the Hydraulic Lift was still there (clearly with a suspicious mind), but somehow did not inspect the Ladder or took any photos. 60.According to the Respondent, he only came to suspect that the Applicant was not telling the truth about the Accident around September/October 2015. When cross-examined as to what suddenly triggered his suspicion some three/four months after the Accident, the Respondent was somewhat evasive and could not provide any credible explanation (see paragraph 20(9) above). 61.Fourth, the Respondent also gave evidence that he had asked the Applicant to accompany him to the police station to make a report when his suspicions as to the truthfulness of the Accident arose, and although the Applicant initially agreed, he later tried to delay matters and did not go with him in the end. The Applicant denies that the Respondent ever made such request. I do not find the Respondent’s allegation to be believable. If the Respondent truly suspected that the Applicant had fabricated the Accident to deceive him into making sick leave payment, it would have been open to the Respondent himself to make a report to the Police even if the Applicant refused to do so or refused to cooperate, but he did not do so. I therefore reject the Respondent’s evidence that he requested the Applicant to go to the police station to make a report. 62.Taking into account the inherent probabilities and improbabilities of the parties’ testimony, and the contemporaneous documents, I do not consider that the Respondent’s version of events to be credible and I reject his evidence. I find that the Applicant did not tell the Respondent on the morning of 10 June 2015 that he would be performing a trial installation of the Hydraulic Lift on the Cabinet as alleged by the Respondent. 63.I also reject the Respondent’s evidence that he began having suspicions as to the truthfulness of the Accident in September/October 2015, which, for the reasons explained above, simply does not accord with his own evidence on the obvious absurdities of the Applicant’s version of events. 64.On the other hand, I find the Applicant’s evidence that he was working at the Ship Street Premises on the morning of 10 June 2015 installing corner clamps onto the Cabinet to be inherently more probable and I accept his evidence. 65.For the sake of completeness, I should mention that Mr. Wong invited the Court to take into account the fact that the Respondent had not taken out any employee insurance policy for the Applicant, which gave the Respondent additional incentive to deny the Accident and avoid having to pay compensation. Mr. Wong submitted that it was a reasonable inference that the Respondent felt the financial strain in January 2016 and began to think of ways to avoid payments to the Applicant. Taking into account the Respondent’s failure to credibly explain his delayed suspicion of the Applicant’s version of events, the inference sought to be drawn by Mr. Wong is plausible, even though I do not have to go so far as to rest my decision on liability on the basis of such inference. E. CONCLUSION ON LIABILITY 66.For the above reasons, I find that the Applicant has proved, on the balance of probabilities, that:-
67.I therefore find that the Injury arose in the course of and out of the Applicant’s employment with the Respondent, and the Applicant is entitled to compensation from the Respondent under section 5 of the ECO. F. QUANTUM 68.Save as to the question on interest, the parties have no dispute as to the quantum of compensation which the Respondent should be liable to pay. The agreed calculations are set out below. F1. Section 9 Compensation 69.The Applicant was 40 years old at the time of the Accident and his monthly salary was HK$16,800. 70.It is agreed as between the parties that the loss of earning capacity is 2% and the total compensation under this head is:
F2. Section 10 compensation 71.The Applicant was given sick leave from 10 June 2015 to 1 March 2016 (266 days) and from 21 April 2016 to 9 March 2017 (323 days) respectively. The total number of days for sick leave period is 589 days. As agreed by the parties, the compensation under this head is:
F3. Section 10A Compensation 72.The medical expenses incurred by the Applicant were HK$3,330, being payments made to United Christian Hospital (“UCH”) and Pamela Youde Nethersole Eastern Hospital (“PYNEH”). 73.Under section 10A(3) and Third Schedule of the ECO (as effective at the time of the Accident), the medical expenses payable by the employer are the amount incurred or the amount at the rate of HK$200 for each day he received treatment, whichever is less. 74.The Statement of Accounts supplied by the Hospital Authority are as follows: -
75.For item (1) above, the medical expenses incurred exceeded HK$200 per day and the rate up to HK$200 is applied. For items (2) and (3), the medical expenses incurred did not exceed HK$200 per day. 76.The total amount of medical expenses to be payable by the Respondent under this head is agreed by the parties to be HK$3,190. 77.It is not disputed that the Respondent paid the Applicant compensation by way of Advance Payment up to 7 January 2016 in the sum of HK$71,525, which shall be taken into account. 78.In summary, the compensation payable by the Respondent to the Applicant shall be as follows:
F4. Interest 79.Ms. Lau submitted that the Court should not award interest to the Applicant in respect of the judgment sum for the period between 15 August 2018 and 16 April 2021 by reason that the Applicant had delayed in taking steps to comply with the Order of His Honour Judge Harold Leong dated 16 May 2018 (the “Order”), pursuant to which the parties were ordered to write jointly to the Court by way of a Joint Application within 91 days from the date of the Order i.e. by 15 August 2018 to set the action down for trial. The draft Joint Application was only sent by the Applicant’s solicitors to the Respondent’s solicitors on 14 April 2021 and countersigned by the Respondent’s solicitors on 16 April 2021. 80.In my view, it is unfair to put the blame of non-compliance with the Order solely on the Applicant. The obligation to make the Joint Application falls upon both parties and the Respondent had equally failed to take any steps before 16 April 2021 to bring the Joint Application. 81.Accordingly, I do not consider it appropriate to make any deduction on interest on the judgment sum of HK$219,729.00, which shall be at half judgment rate per annum from the date of the Accident (i.e. 10 June 2015) to the date of this judgment, and thereafter at judgment rate until full payment. G. DISPOSITION 82.For reasons set out above, I find that the Respondent is liable to pay HK$219,729.00 to the Applicant pursuant to sections 9, 10, and 10A of the ECO. The Applicant is also entitled to interest on the sum of HK$$219,729.00 at half judgment rate from 10 June 2015 to the date of this judgment, and thereafter at judgment rate until full payment. 83.There is no reason why costs should not follow the event. I make a costs order nisi that:-
84.The costs order nisi shall become absolute in the absence of any application to vary the same within 14 days of the handing down of this Judgment. 85.It remains for me to thank counsel for their assistance.
Mr. Peter Wong, instructed by K.Y. Woo & Co. (assigned by Director of Legal Aid), for the Applicant Ms. Julia Lau, instructed by Ernest Li & Co. (assigned by Director of Legal Aid), for the Respondent | |||||||||||||
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