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DCEC 2203/2019
[2022] HKDC 189
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO 2203 OF 2019
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| IN THE MATTER OF AN APPLICATION BETWEEN |
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LAU LAN YING |
Applicant |
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and |
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TOP HILL COMPANY |
1st Respondent |
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YICK HING CONSTRUCTION COMPANY LIMITED |
2nd Respondent |
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Before: Deputy District Judge Sabrina Ho in Court
Date of Hearing: 18 May 2021
Date of Judgment: 7 April 2022
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JUDGMENT
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A. INTRODUCTION
1.This is the trial for the assessment of compensation under the Employees’ Compensation Ordinance (Cap 282) (“ECO”).
2.By this action, the applicant claims compensation against the 1st and 2nd respondents pursuant to ss. 9, 10 and 10A of the ECO in respect of injuries arising from an accident which occurred on 22 November 2017, whereby the applicant fell down a slope at a construction site in Ta Kwu Ling and suffered right distal tibia and fibula fracture as a result (the “Accident”).
3.At the material time, the applicant was an employee of the 1st respondent, whereas the 1st respondent was a sub-contractor of the 2nd respondent, the latter being a “principal contractor” within the meaning of the ECO.
4.On 17 June 2019, the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) issued the Certificate of Assessment (“Form 7”) and assessed:-
(1) The applicant’s loss of earning capacity permanently caused by the injury to be 2%; and
(2) The applicant’s period of absence from duty necessary as a result of the injury to be the period from 22 November 2017 to 3 June 2019.
5.On 31 December 2019, the Board, having reviewed the Form 7 issued by it earlier, issued the Certificate of Review of Assessment (“Form 9”) and assessed:-
(1) The applicant’s loss of earning capacity permanently caused by the injury remained to be 2%; and
(2) The applicant’s period of absence from duty necessary as a result of the injury to be the period from 22 November 2017 to 3 June 2019, and from 1 to 3 July 2019, viz a total period of 18 months and 16 days.
6.By a Notice of Appeal dated 12 February 2020, the applicant lodged an appeal pursuant to s. 18 of the ECO against the Board’s assessment of her loss of earning capacity and her necessary period of absence from duty. In gist, the applicant contends that:-
(1) Her loss of earning capacity permanently caused by the injury should be assessed at 3% (instead of 2% as assessed by the Board); and
(2) Her period of absence from duty necessary as a result of the injury should be the period from 22 November 2017 to 29 November 2019, viz a total period of 738 days (instead of 18 months and 16 days as assessed by the Board).
7.Since interlocutory judgment on liability has already been entered against the 1st and 2nd respondents with compensation to be assessed pursuant to HH Judge Levy’s Order dated 19 February 2021, liability is no longer a live issue. The focus of the present trial concerns the quantum of compensation which the applicant is entitled to claim from the 1st and 2nd respondents.
B. THE APPLICANT’S MONTHLY EARNINGS
8.I will first consider the issue regarding the applicant’s monthly earnings, as this will form the multiplicand for my subsequent assessment of the applicant’s ss. 9 and 10 compensations.
9.S.11(1) of the ECO provides that:-
“(1) 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.”
10.In the present case, no List of Earnings has been filed by either respondent, notwithstanding HH Judge Levy’s Order Nisi dated 30 March 2020 requiring the 1st and 2nd respondents to file a List of Earnings of the applicant for the 12-month period prior to the Accident or such lesser period of her employment with the respondents. This court will therefore have to proceed on the basis of other evidence in assessing the applicant’s relevant monthly earnings.
11.In this connection:-
(1) The applicant’s original case, as suggested in her opening submissions, was that her monthly earning for the month immediately preceding the date of the Accident was HK$17,189.47. This was agreed by both the 1st and 2nd respondents.
(2) However, the applicant later proposed a higher figure of HK$20,553.75 based on new documentary evidence disclosed by the 1st respondent, including salary records, just one day after the delivery of opening submissions.
(3) At the trial before me, the three parties reached an agreement for the applicant’s monthly earnings at the time of the accident to be assessed at HK$18,000.
12.That is, however, not the end of the matter insofar as the applicant’s monthly earnings for the purpose of calculating her ss 9 and 10 compensation is concerned. This is because the applicant also invited the court to make relevant adjustments to her said monthly earnings of HK$18,000 in accordance with the relevant rates of increase in the Consumer Price Index (“CPI”) as defined under s 11(1C) at the end of the 12-month period after the date of the Accident (ie since 22 November 2018) pursuant to s 11(1A)(b) of the ECO:-
(1) The applicant submits that s 11(1A)(b) should apply, since there is no evidence that the 1st respondent has employed, in similar employment, other persons of similar earning capacity to the applicant. In this regard, referencing the relevant ‘Movements of Consumer Price Indices’ and the CPI(A) index of December 2018 published by the Census and Statistics Department, the applicant suggests that 3% should be adopted as the relevant rate of increase in CPI.
(2) On the other hand, the 1st respondent submits that it did employ, in similar employment, other persons of similar earning capacity to the applicant in November 2018, such that s 11(1A)(a) should apply instead. In this regard, the 1st respondent adduced the payroll slips of one Kong Mei (“Madam Kong”) from November 2017 to end of November 2018, which recorded no rate of increase in her salary throughout the months. Accordingly, no adjustments should be made to the applicant’s monthly earnings, says the 1st respondent, and the applicant’s monthly earning of HK$18,000 should stand for the entire post-accident period.
13.Upon careful consideration, I am of the view that the applicant’s submissions should be accepted:-
(1) In the first place, there is no indication at all in Madam Kong’s payroll slips as to her job nature and description. Thus, it is unclear whether Madam Kong is a person who was employed by the 1st respondent “in similar employment” and “of similar earning capacity” to the applicant. Since these payroll slips are the only evidence upon which the 1st respondent relies to show that it employed a comparable employee for the purpose of s 11(1A)(a), I am not satisfied that the 1st respondent has made out its case in this regard.
(2) Second, and more importantly, even assuming Madam Kong to be a comparable employee, it is Madam Kong’s payroll slips for the period after November 2018 (ie at the end of the 12-month period after the Accident) which is the most pertinent for the purpose of determining the average rate of increase (if any) in Madam Kong’s earnings. The 1st respondent has, however, only adduced payroll slips for the period up till November 2018. Payroll slips for the most relevant periods were therefore not adduced at all to enable this court to ascertain the relevant rate of increase (if any).
(3) In the light of the foregoing, I would hold that the present case falls to be governed by s 11(1A)(b), with 3% being the relevant CPI for upward adjustment purposes.
(4) I should mention that counsel for the applicant did not rely upon s 11(1B)(b) to seek any statutory adjustments to the applicant’s monthly earnings at the end of the 24-month period after the Accident (ie since 22 November 2019), nor did the applicant adduce evidence of any relevant rate of increase at the end of such 24-month period, even though the applicant’s case is that she has suffered temporary incapacity for over 24 months (see Section D below). In light of the way the applicant advanced her claim and given the lack of evidence in this regard, this court can only proceed on the basis that there is no relevant change in CPI or the post-accident earnings of comparable employees at the end of the 24-month period after the date of the Accident, such that only s 11(1A)(b) is capable of being invoked: Tang Yam Kau v Key Asia Engineering Ltd (unrep, DCEC 694/2011, 25 July 2014) at §§92, 95 per DDCJ Simon Ho. As will be seen below, this will affect the calculation of the applicant’s s. 10 compensation.
14.In the premises:-
(1) The applicant’s monthly earning for the first 12-month period after the date of the Accident should be assessed at HK$18,000; and
(2) The applicant’s monthly earning at the end of the 12-month period after the date of the Accident (ie for the second 12-month period) should be assessed at HK$18,000 x (100% + 3%) = HK$18,540. For reasons explained at §13(4) above, this figure will also be taken as the applicant’s monthly earning at the end of the 24-month period after the date of the Accident (ie for the third 12-month period).
C. S. 9 COMPENSATION: PERMANENT PARTIAL INCAPACITY
15.Turning to the applicant’s loss of earning capacity, which is another subject of the applicant’s challenge against the Board’s Form 9 assessment:-
(1) According to the Joint Orthopaedic Report dated 5 November 2020 (“Joint Orthopaedic Report”) jointly prepared by Dr Lung Ting Kwan, Peter, the applicant’s expert, and Dr Wong Kwok Shing, Patrick, the 2nd respondent’s expert, the applicant’s loss of earning capacity for the purpose of s. 9 of the ECO should be assessed at 3%.
(2) At the trial before me, it is also common ground between all three parties that the 3% figure should be adopted for the purpose of s. 9.
(3) In these circumstances, having regard to expert opinion on the percentage of the applicant’s loss of earning capacity and the parties’ agreed stance, I am satisfied that it would be appropriate to adopt 3% as the figure representing the applicant’s loss of earning capacity.
16.Since the applicant was aged 47 at the time of the Accident, the applicable section for calculating compensation is s. 7(1)(b) of the ECO, which allows the applicant to receive compensation in “a lump sum equal to 72 months’ earnings or 72 times the amount specified in the second column of the Sixth Schedule whichever is the less”.
17.As I have allowed statutory adjustments to be made to the applicant’s monthly earnings under s. 11(1A) (see Section B above), the applicant is entitled to adopt such adjusted figure (HK$18,540) for the purpose of her s. 9 compensation: Tang Yam Kau (supra) at §§111, 118.
18.Accordingly, I would assess the applicant’s s. 9 compensation to be HK$18,540 x 72 x 3% = HK$40,046.4.
D. S. 10 COMPENSATION: TEMOPRARY INCAPACITY
D1. Applicable Legal Principles
19.S. 10(1) of the ECO provides as follows:-
“(1) Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned, or a lump sum calculated accordingly, having regard to the probable duration, and probable changes in the degree, of the incapacity. Such periodical payment shall be, or shall be at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident.”
20.Crucially, s. 10(2) of the ECO provides:-
“(2) For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.” (emphasis added)
21.In this regard, it has been held that the presumption under s. 10(2) is irrebuttable in the absence of fraud on the part of either the certifying doctor or the employee, since the object of the ECO is to provide a no-fault scheme to ensure quick financial relief to employees with certainty: Sin Fu Yau v Wong Po Kee Ltd (unrep, DCEC 654/2003, 5 October 2006) at §§15-36 per DDCJ Anthony Chow.
22.However, notwithstanding the presumption under s. 10(2), the court is not bound by s. 10(2) to award compensation at four-fifths of the employee’s pre-accident earnings during the certified period. Instead, s. 10(1) contemplates that even for total temporary incapacity, compensation could still be reduced if the employer can prove that there were earnings that the employee was earning, or was capable of earning, in some suitable employment during the period of temporary incapacity. However, an employer could rarely prove potential earnings where total incapacity has been certified, since (a) it is not only physical disability that incapacitates an employee from working, but also discomfort or pain preventing the employee from concentrating; and (b) an employee is expected only to undertake employment which is suitable for him: Yu Tat Kam v Chu Tung Shing and Another [2009] 6 HKC 411 at §§24-27 per Yuen JA.
23.Finally, s. 10(5) provides that an employee who has received periodical payments under s 10 for a period of 24 months from the date of the commencement of the temporary incapacity, or “for such further period not exceeding 12 months as the court may allow in any particular case”, shall no longer be entitled to periodical payments under s 10 but shall be deemed to have suffered permanent incapacity and the provisions of ss 7 or 9, as the case may be, shall apply to the employee.
D2. Assessment of s. 10 Compensation
24.At the heart of the dispute regarding the applicant’s s. 10 compensation concerns the proper sick leave period of the applicant, which directly bears on the duration of the applicant’s temporary incapacity required to be taken into account under s 10(1).
25.Three proposed periods of sick leave were put before this court. The question is which sick leave period should be adopted for s 10 purposes.
26.The first proposed sick leave period is that assessed by the Board, viz a total period of 18 months and 16 days from 22 November 2017 to 3 June 2019 and from 1 to 3 July 2019. This proposed period is supported by sick leave certificates issued by Pok Oi Hospital and Hong Ning Chinese Bonesetter Clinic.
27.The Board’s assessment was agreed by the 1st respondent, who contends that such sick leave period is already more than generous in view of the applicant’s good recovery and physical conditions. Any further sick leave would, says the 1st respondent, be of no therapeutic value to the applicant’s condition and therefore unnecessary:-
(1) The 1st respondent first points to the consultation summary of Pok Oi Hospital’s Orthopaedic and Traumatology Department (“OTD”) dated 1 April 2019, whereby the applicant was advised to “wean off stick”. This, according to the 1s respondent, suggests that the applicant has already become physically suitable to ambulate even without any walking aid by that time.
(2) Whilst the applicant was granted 57 days’ sick leave by the doctor of the Pok Oi Hospital’s OTD at her follow-up consultation on 1 April 2019, she was only granted 8 days’ sick leave on her return to Pok Hoi Hospital after the expiry of her 57-day sick leave.
(3) Soon after the expiry of her 8-day sick leave, the applicant switched to attend Tin Shui Wai (Tin Yip Road) Community Health Centre and Tin Shui Wai Health Centre (collectively the “TSW Health Centres”). The 1st respondent, however, argues that the applicant’s repeated attendance of the TSW Health Centres was not driven by her genuine medical needs, but for the sole purpose of obtaining sick leave certificates for the sake of it. In this regard, the 1st respondent points to copies of the applicant’s consultation summary at the TSW Health Centres, where it was repeatedly remarked that the applicant’s condition was “similar c.f. last visit” or recorded “no improvement”. These, says the 1st respondent, suggest that the applicant’s condition has already become static and stable after March 2019, and that her continued attendance of the TSW Health Centres thereafter was simply unnecessary.
(4) Finally, the 1st respondent argues that the subject of the applicant’s medical complaint as documented in the medical notes, viz chronic right leg pain, is primarily subjective. Such subjective complaint does not, however, tally with objective examination by the joint experts, who agreed that the applicant’s muscle bulks measurement showed no reduced muscle wasting of the right side as compared to the left, which is concrete evidence which indicates that the intensity of the applicant’s alleged right leg pain could not possibly be so severe as would impair the use of her right lower limb in the long term.
(5) For these reasons, the 1st respondent argues that the applicant’s sick leave period should only be approved to the extent as assessed by the Board in Form 9, viz for a total period of 18 months and 16 days.
28.The second, and longest proposed sick leave period, is that put forward by the applicant herself, viz a total of 738 days from 22 November 2017 to 29 November 2019:-
(1) This proposed sick leave period, says the applicant, is amply supported by sick leave certificates issued to her by various registered medical practitioners during the aforesaid period. In particular, the applicant points to the following:-
(a) Sick leave certificates were issued by Pok Oi Hospital on a continuous basis during the period from 22 November 2017 to 3 June 2019, and on 19 August 2019.
(b) Thereafter, sick leave certificates were issued by the TSW Health Centres and Hong Ning Chinese Bonesetter Clinic, again largely continuously, from 4 June 2019 to 29 November 2019 with few days’ exception.
(2) In this regard, the applicant places heavy emphasis on the “irrebuttable” presumption under s 10(2) of the ECO. She argues that absent any proof of fraud, her sick leave certificates should be taken to be conclusive of the period of her temporary incapacity (see §§20-21 above).
(3) At trial, the applicant also testified that she was unable to wean off stick despite the doctor’s advice to her and her attempts to do the same given the degree of pain she was suffering from, and that her leg remained swollen and painful which required the taking of painkillers and repeated consultations with various doctors even after March 2019.
(4) The applicant also alleges that she has tried her best to seek alternative employment, but was only able to regain employment as a part-time mask packing worker on 5 June 2020.
29.The third, and also shortest proposed sick leave period, is that suggested by the 2nd respondent, viz a total of 494 days from 23 November 2017 to 31 March 2019:-
(1) The 2nd respondent draws heavily on the observations made by the joint experts in the Joint Orthopaedic Report. The joint experts remarked that the applicant’s condition has become static, and that she has achieved maximum medical improvement (“MMI”) by the end of March 2019, such that “sick leave to achieve MMI should be up to the end of March 2019”. Indeed, even Dr Lung, the medical expert appointed by the applicant, opined that the applicant was ready to perform less physically strenuous occupations such as a shopkeeper or carpark cashier by March 2019, although she may not be capable of resuming her original occupation as a construction site worker at that time.
(2) The 2nd respondent further references the bundle of sick leave certificates obtained by the applicant from 1 April 2019 onwards, which it says were mostly for sick leaves for a short duration with a generic medical diagnosis of “right lower limb pain”.
(3) Pulling the threads together, the 2nd respondent contends that the applicant’s sick leave period should not extend beyond the end of March 2019.
30.Having considered all the circumstances, I am of the view that the applicant’s proposed sick leave period, insofar as supported by sick leave certificates, should be accepted for the purpose of her s. 10 compensation.
31.I note, at the outset, that the 2nd respondent’s proposed sick leave period involves a departure from both the Board’s assessment as well as the period of sick leave as recommended by the applicant’s doctors. However, aside from pointing to certain observations made by the joint experts in the Joint Orthopaedic Report, the 2nd respondent has never put forward allegations of, nor sought to prove, fraud on the part of either the applicant’s doctors or the applicant herself. In these circumstances, I am not satisfied that the 2nd respondent has discharged its heavy onus of rebutting the presumption under s 10(2) of the ECO. I would therefore reject the 2nd respondent’s proposed sick leave period, viz from 23 November 2017 to 31 March 2019.
32.This leaves the court with the Board’s assessment on the one hand (as endorsed by the 1st respondent) and the applicant’s proposed sick leave period on the other. After careful consideration of the totality of evidence and all the circumstances, I would prefer the applicant’s proposed sick leave period, but only insofar as this is supported by sick leave certificates issued to her:-
(1) First, the Board’s assessment of the applicant’s sick leave period involves a discount of the applicant’s sick leave period from 4 June 2019 to 30 June 2019, and from 4 July 2019 to 29 November 2019, even though these sick leave periods are clearly supported by sick leave certificates issued by both the TSW Health Centres and Pok Oi Hospital. The Board’s approach does not, therefore, square with the statutory presumption under s 10(2): the period of sick leave absence certified by the relevant doctors to be necessary ought to be given conclusive weight absent fraud.
(2) Indeed, no party has ever seriously suggested fraud on the part of the applicant or the doctors who have issued sick leave certificates to the applicant, which is required to rebut the s 10(2) presumption (see §§20-21 above). I note, however, that the 1st respondent did suggest during its oral closing submissions that the applicant fabricated her alleged purchases of painkillers from dispensaries, as it was unreasonable for her to visit both the clinic and the dispensaries at the same time for such painkillers. This was, however, only the 1st respondent’s bare assertion and speculation which is unsupported by any evidence, let alone cogent ones commensurate with the gravity of such serious allegation. The 1st respondent also alleged that it was only the applicant’s personal reference not to resume work even after her pain has become tolerable; but as I have explained above, this could not be reconciled with the doctors’ professional opinion that sick leaves should be certified to the applicant during that period.
(3) Second, and importantly, the mere existence of different opinions held by different doctors on the appropriate length of sick leaves does not necessarily mean that the attending doctor concerned has failed to give due consideration to the applicant’s condition before making the relevant diagnosis and certifying the necessity of the relevant periods of sick leave (see Sin Fun Yau (supra) at §21).
(4) Thus, whilst the joint experts made retrospective observations to the effect that the applicant showed improvement in her conditions and better recovery by March 2019, and that “sick leave to achieve MMI should be up to end of March 2019”, this does not detract from the force of the observations made by the relevant doctors who examined the applicant’s condition first-hand at the relevant time, who did consider it necessary, and appropriate, to issue sick leave certificates to the applicant. In any event, the mere fact that the applicant’s recovery has shown improvement does not necessarily mean that her temporary incapacity has ceased, or that she has become fit to resume work at that time.
(5) Third, contrary to the 1st respondent’s suggestion, no evidence shows that the doctors have decided to issue sick leave certificates to the applicant on the sole basis of the subjective symptoms asserted by the applicant, without conducting any medical examination and/or exercising independent medical judgment. Quite the contrary, the physiotherapy report from TSW Centres recorded “objective findings” regarding, inter alia, the active ROM of the applicant’s right knee flexion and right ankle plantarflexion as well as her degree of pain.
(6) In these circumstances, I am not satisfied that the statutory presumption under s 10(2) has been rebutted, bearing in mind that compensation under the ECO is based on a no-fault premise different from general civil claims for personal injuries, and that the method of calculation is expressly laid down under the Ordinance with mandatory effect.
33.However, I should mention that according to the Sick Leave Table helpfully prepared by Mr. Ho, Counsel for the 1st respondent, only 731 days (discounting overlapping days of sick leave) out of the applicant’s proposed 738 days are sick leave periods which are actually supported by sick leave certificates. Indeed, the applicant also admitted in its opening submissions that not all 738 days of proposed sick leave are supported by sick leave certificates. In these circumstances, I am only prepared to accept 731 days as the appropriate sick leave period of the applicant for s.10 purposes.
34.I would also add the following three observations:-
(1) First, since the certified sick leave period of 731 days exceeds the “period of 24 months from the date of the commencement of the temporary incapacity” (s. 10(5)) by one single day only, I would exercise my discretion to extend the 24-month period by one day.
(2) Second, I note that the parties have not put forward concrete evidence which suggests that the applicant earned, or was capable of earning, in some suitable employment during the period of her temporary incapacity (ie at any time before the end of November 2019). Indeed, I note that the occupational therapy report issued by Tuen Mun Hospital in June 2019 ranked the applicant as “not match[ed] with job demands for inadequate work capacity and tolerance”, as her recovery progress was static upon discharge. Further, whilst Dr Wong opined in the joint expert report that the applicant could resume her pre-accident job as a construction worker, whereas Dr Lung was of the view that the applicant would not be able to resume her original occupation as a construction site worker but may work in other jobs which do not require heavy lifting, prolonged standing or walking, both observations were made with respect to the applicant’s condition as of November 2020 (ie one year after the expiry of the applicant’s sick leave period), and not during the period of her temporary incapacity.
(3) In light of the foregoing, and bearing in mind that discomfort or pain which prevented the applicant from concentrating in her work would also incapacitate her from working (see Yu Tat Kam (supra)), I see no basis for reducing the compensation payable to the applicant under s 10 on the basis of any potential earnings which she could have made during the period of her temporary incapacity.
(4) Finally, the applicant’s monthly earnings in respect of the 3rd year (ie the period after the end of the 24 months after the date of the Accident) will be taken to be the same as that in respect of the 2nd year (ie HK$18,540) for reasons explained at §13(4) above.
35.In the premises, I would assess the applicant’s appropriate period of sick leave to be 731 days. Accordingly, compensation payable to the applicant pursuant to s 10A should be assessed as follows:-
In respect of the 1st year
(22 November 2017-21 November 2018)
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HK$18,000 x 365/30 x 4/5 = HK$175,200.00 |
In respect of the 2nd year
(22 November 2018-21 November 2019, discounting days of sick leave unsupported by sick leave certificates)
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HK$18,540 x 358/30 x 4/5 = HK$176,995.20 |
In respect of the 3rd year
(22-29 November 2019)
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HK$18,540 x 8/30 x 4/5 = HK$3,955.20 |
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Total: |
HK$356,150.40
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E. S. 10A COMPENSATION: MEDICAL EXPENSES
36.The applicant claims a total sum of HK$11,578 as the amount of medical expenses incurred by her by reason of her injury. This was not disputed by the 2nd respondent.
37.The 1st respondent, however, took issue with this figure. In its submission, only medical expenses incurred by the applicant on or before 3 July 2019 in the total sum of HK$9,418 should be allowed.
38.However, the 1st respondent’s suggestion is premised on its earlier submission that the applicant’s appropriate sick leave period should only be up to 3 July 2019 (as assessed by the Board), such that any medical expenses incurred thereafter should not be taken into account. Given my earlier rejection of such suggestion (see Section D2 above), the 1st respondent’s objection in this regard naturally falls away.
39.Accordingly, I would award the applicant compensation in the sum of HK$11,578 under s. 10A.
F. POST-ACCIDENT PAYMENTS MADE BY THE RESPONDENTS
40.It is agreed by the parties that since the occurrence of the Accident, payments amounting to HK$70,947.30 have been made to the applicant. Credit should accordingly be given to these payments.
41.In the premises, credit should be given for the sum of HK$124,177.30.
G. INDEMNITY UNDER S. 24(2)
42.The final issue concerns whether the 2nd respondent is entitled to be indemnified by the 1st respondent in respect of compensation payable to the applicant and the 2nd respondent’s costs.
43.S. 24(2) of the ECO provides that in the event that a principal contractor is liable to pay compensation to an injured employee, it shall be entitled to be indemnified by “any person who would have been liable to pay compensation to the employee”. This includes not only indemnity for compensation that the principal contractor pays to an applicant, but also indemnity for his costs: Mak Wing Fai v Chevlier (HK) Ltd & Another [1999] 3 HKC 677 at §§13, 15 per Mortimer VP and Godfrey JA.
44.Applying this principle, the 2nd respondent is clearly entitled to be indemnified by 1st respondent in respect of both compensation the 2nd respondent would otherwise be liable to pay the applicant and the 2nd respondent’s costs in these proceedings.
45.There is a wrinkle, however, regarding the 2nd respondent’s entitlement to indemnity in this case, since the Notice of Indemnity issued by the 2nd respondent on 4 June 2020 cited the 1st respondent’s “negligence” as the sole ground for seeking indemnity, when it is trite that proceedings under the ECO proceed on a no-fault basis. This, the 1st respondent argues, renders the Notice of Indemnity defective, and the 2nd respondent’s claims thereunder should consequently be rejected and dismissed with costs to the 1st respondent.
46.I appreciate that the 2nd respondent has relied upon the 1st respondent’s alleged negligence as the ground for seeking indemnity in its Notice of Indemnity. That said, I am not satisfied that the 2nd respondent’s statutory right to be indemnified under s. 24(2) should be deprived on this basis:-
(1) The Court of Appeal in Mak Wing Fai (supra) has clearly spelt out at §12 that service of an indemnity notice on the other party, whilst a “good practice”, is not strictly necessary since the provisions of s. 24(2) can be relied upon. Seen as such, the flaw in the 1st respondent’s argument becomes apparent: if service of the Notice of Indemnity on the 1st respondent is not even strictly required in the first place, the mere fact that the 2nd respondent cited an irrelevant reason for seeking indemnity in its Notice of Indemnity cannot, a fortiori, have any relevance, let alone affording a ground for depriving the 2nd respondent of its statutory right to seek an indemnity from the 1st respondent under s. 24(2).
(2) Here, it is clear from the opening submissions of the 2nd respondent that it does intend to rely on s. 24(2) to seek indemnity from the 1st respondent. In my view, that alone is sufficient.
47.In light of the foregoing, I would hold that the 2nd respondent is entitled to be indemnified by the 1st respondent in respect of compensation payable to the applicant and the 2nd respondent’s costs in this application.
H. CONCLUSION
48.For all the foregoing reasons, the applicant is entitled to be paid the following sum under the aforesaid heads of claim:-
| |
HK$ |
|
S. 9 compensation |
40,046.40 |
|
S. 10 compensation |
356,150.40 |
|
S.10A compensation |
11,578.00 |
|
Subtotal |
407,774.80 |
|
Less (post-accident payments received by the applicant) |
70,947.30 |
|
Total: |
336,827.50 |
49.The applicant is also entitled to interest on the above sum at half of the judgment rate from the date of the Accident (22 November 2017) until the date of this judgment, and thereafter at judgment rate until full payment.
50.As to costs, I would make an order nisi that costs of these proceedings (including all costs reserved) be to the applicant, to be taxed if not agreed, with certificate for counsel, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.
51.Lastly, I thank counsel for their assistance.
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( Sabrina Ho )
Deputy District Judge |
Mr Jerome Liu, instructed by Wong & Tang, assigned by the Director of Legal Aid, for the applicant
Mr Jacky Ho, instructed by Grandall Zimmern Law Firm, for the 1st respondent
Mr M H Leung, Michael, instructed by Tam, Pun & Yipp, for the 2nd respondent
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