Cheung Man Kit v. Chiu Lok Yan t/a New Luen Lik Engineering Co and Others

DCEC 515/2021

[2024] HKDC 330

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 515 OF 2021

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JUDGMENT

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I.  Introduction

1.This is the trial for assessment of compensation.

2.On 20 May 2019, the Applicant, Mr Cheung Man Kit, was met with an accident and sustained injuries while he was working as a general (metal) worker at a site known as Storage STT1638 Chi Wah Lane, Fanling, New Territories (“the Site”, and “the Accident”). The 1^st Respondent, Chiu Lok Yan trading as New Luen Lik Engineering Co, was the Applicant’s employer at the material time. The 2^nd Respondent, Wing Lik Construction Engineering Limited, was the principal contractor at the Site.

3.By Application dated 10 March 2021 as amended on 14 April 2022 (“the Application”), the Applicant applies for various reliefs under Sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”) and for his entitlement to periodical payment be extended beyond 24 months under Section 10(5) of the Ordinance.

4.On 26 November 2021, Interlocutory Judgment was entered in favour of the Applicant against the 1^st and the 2^nd Respondents with compensation to be assessed.

5.By the Order of HH Judge MK Liu dated 11 May 2022, the 3^rd Respondent, the Employees Compensation Assistance Fund Board, was granted leave to join the proceedings to take issue on the quantum of the compensation.

6.At the present trial, the Applicant and the 3^rd Respondent appeared before this Court. The 1^st Respondent and the 2^nd Respondent were absent. I am satisfied that the 1^st Respondent and the 2^nd Respondent had due notice of this trial for assessment of compensation. Hence the assessment proceeded in the absence of the 1^st Respondent and the 2^nd Respondent.

II.  The Applicant’s background, injury and treatments

7.The Applicant was born on 23 October 1987. He has received Form 5 secondary school education and can read and write Chinese. He was 31 years old at the time of the Accident. Prior to the Accident, apart from a medical history of migraine since 2007, the Applicant had good past health.

8.From February 2017 until the date of the Accident on 20 May 2019, the Applicant had been employed by the 1^st Respondent as a general (metal) worker. As stated in the Applicant’s witness statement, his work included loading and unloading building materials, driving light goods vehicles to pick up and drop off other workers, welding, cutting metal pieces, installation and dismantling and other miscellaneous tasks relating to metalworks. As the Applicant supplemented during cross-examination, he had to carry out any tasks assigned by the 1^st Respondent, and the tasks may not necessarily relate to metalworks. Further, apart from stationing in the Site, he may have to station in the warehouse.

9.On 20 May 2019, the Applicant was met with the Accident and fell from an elevated platform into a 2-meter-deep hole. The Applicant sustained, amongst others, severe traumatic brain injury, skill fracture and undisplaced fracture through the right sacrum and pelvic hematoma. He had a loss of consciousness for a period of time. He was admitted to the Prince of Wales Hospital, attended the Accident & Emergency Department and stayed in the Intensive Care Unit until 25 May 2019, when he was transferred to the neurosurgical ward and then the general ward for continuation of care. On 12 June 2019, the Applicant was transferred to the Shatin Hospital on 12 June 2019 for further rehabilitation.

10.With a course of physiotherapy and occupational therapy in the Shatin Hospital, the Applicant was able to walk with a quadripod. He was discharged from hospital to home on 24 September 2019. On 18 November 2019, the Applicant performed a cranioplasty to repair his skull defect.

11.As the Applicant updated the Court during his evidence-in-chief, he no longer needs to rely on the quadripod now, and he can stand and walk with an ankle-foot orthosis. The Applicant said that without the ankle-foot orthosis, he cannot stand properly.

III.  The Form 7 and Form 9

12.By the Certificate of Assessment dated 25 August 2021 (Form 7), the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed that:

(a)  The Applicant had suffered a fall injury resulting in:

(i)  Brain injury and consequential symptoms (10%);

(ii)  Left facial nerve palsy (3%); and

(iii)  Left eye eyelid incomplete closure and dry eye (1%).

(b)  Period of absence from duty necessary as a result of the injury is 20 May 2019 to 10 August 2021;

(c)  Loss of earning capacity permanently caused by the injury (“LOEC”) is 14%.

13.In the Certificate of Review of Assessment dated 27 June 2022 (“the Form 9”), the Board reviewed and revised its assessment as follows:

(a)  The Applicant has suffered a fall injury resulting in:

(i)  Brain injury and consequential symptoms (increased to 15%);

(ii)  Left facial nerve palsy (remains at 3%); and

(iii)  Left eyelid incomplete closure and dry eye (remains at 1%).

(b)  Period of absence from duty necessary as a result of the injury is 20 May 2019 to 19 May 2022 (increased to 36 months);

(c)  LOEC is increased to 19%.

14.By a Notice of Appeal dated 4 July 2022, the Applicant lodged an appeal against the assessment in the Form 9 in respect of both the period of sick leave and the loss of earning capacity permanently caused by the injury pursuant to Section 18 of the Ordinance. At the trial of the assessment, the Applicant withdrew his appeal with respect to the period of sick leave, i.e. 36 months, from 20 May 2019 to 19 May 2022. The Applicant maintains its appeal with respect to the loss of earning capacity.

IV.  Matters agreed and issues between the Applicant and the 3^rd Respondent

15.As set out in the List of Issues dated 6 September 2023 submitted jointly by the Applicant and the 3^rd Respondent, they have reached agreement on the following:

(a)  The Applicant’s monthly earnings at the time of the Accident was HK$1,100 per day for 25 days or HK$27,500 a month;

(b)  For the purpose of assessment under Section 10 of the Ordinance, the period of absence from duty necessary as a result of the injury is 36 months from 20 May 2019 to 19 May 2022;

(c)  Medical expenses under Section 10A of the Ordinance were HK$24,479.

16.The following issues remain in dispute, which I will address below:

(a)  With respect to the compensation under Section 9 of the Ordinance:

(i)  What is the appropriate percentage for loss of earning capacity permanently caused by the injury; and

(ii)  Whether it is appropriate to adopt the Paper Mills Formula in the assessment.

(b)  With respect to compensation under Section 10 of the Ordinance, whether the Applicant’s monthly earnings should be adjusted by the increase in the relevant Consumer Price Index (“the CPI (A)”) after each period of 12 months.

V.  The evidence

17.The Applicant filed his witness statement dated 11 February 2022. He was the only witness who gave evidence in the trial.

18.During the Applicant’s oral evidence, the Applicant came across to be an honest witness. He responded to the questions from Counsel and the Court in detail and in a candid manner. He did not exaggerate matters and he readily accepted that some of his conditions had improved by the time he gave evidence, e.g. he no longer needs to use the 4-leg crotchet to walk and can walk with the ankle-foot orthosis, and his headache has ceased.

19.As to the expert evidence, pursuant to the Order of HH Judge Levy dated 20 June 2023, the following expert reports were adduced as evidence at the assessment without calling the makers thereof:

(a)  The Joint Orthopaedics Medical Report prepared by Dr Fu Wai Kee (“Dr Fu”) for the Applicant and Dr Chiang Si Chung (“Dr Chiang”) for the 3^rd Respondent dated 11 October 2022 (“the Orthopaedics Report”);

(b)  The Joint Psychiatry Medical Report prepared by Dr Wong Chun Bun Gordon (“Dr Wong”) for the Applicant and Dr Chung See Yuen (“Dr Chung”) for the 3^rd Respondent dated 6 April 2023 (“the Psychiatry Report”); and

(c)  The Joint Neurology Medical Report prepared by Dr Yu Yuk Ling (“Dr Yu”) for the Applicant and Dr Woo Kin Wai Edmund (“Dr Woo”) for the 3^rd Respondent dated 3 April 2023 (“the Neurology Report”).

(d)  The Single Joint Otorhinolaryngology Medical Report prepared by Dr Au Wing Wah (“Dr Au”) for the Applicant and the 3^rd Respondent dated 5 March 2023 (“the ENT Report”).

20.The experts’ respective opinions will be discussed in more detail below.

VI.  Section 9 Compensation

The law

21.Section 9 of the Ordinance provides as follows:

“Compensation in case of permanent partial incapacity

(1) Subject to subsection (1A), where permanent partial incapacity results from the injury the amount of compensation shall be —

(a) …

(aa) …; and

(b) in the case of an injury not specified in the First Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time:

Provided that —

(i) …;

(ii) in the case of injury not specified in the First Schedule, the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentages specified in that Schedule and to the Note thereto.

(1A) Where —

(a) permanent partial incapacity results from an injury or a combination of injuries (whether or not specified in the First Schedule); and

(b) the percentage of the loss of earning capacity specified or assessed in relation to that injury or combination of injuries in accordance with subsection (1) would be substantially less than the percentage of the loss of earning capacity permanently caused by the injury or injuries in the special circumstances of the employee, including, without limiting the generality of the foregoing —

(i) the nature of the injury or injuries in relation to the nature of his former usual employment; and

(ii) his qualifications, previous training and experience,

the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury or injuries in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time.

(2) Where more injuries than one are caused by the same accident, the amount of compensation payable under the provisions of this section shall be aggregated, but not so in any case as to exceed the amount which would have been payable if permanent total incapacity had resulted from the injuries.” (Emphasis added)

22.As the Applicant appeals against the assessment of LOEC under Form 9 pursuant to Section 18 of the Ordinance, this Court will start afresh, relying on the certificate of the Board and any other evidence, especially medical evidence, adduced before it to assess the LOEC: see Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246 at 248 per DDJ Bharwaney (as he then was).

23.With respect to the relevance of the percentage of physical disability in the assessment of percentage of LOEC arising out of non-scheduled injuries, as HHJ Yeung observed in Yip Fong Ming v Joint-Effort Engineering Co & Anor [1989] 1 HKC 505 at 509 C to E, while the percentage of physical disability of the employee is relevant to the assessment of his LOEC, it is not the only factor as the physical condition of an individual is not the only factor affecting his earning capacity.

24.With respect to the value of medical expert opinion in the assessment of LOEC:

(a)  As Bharwaney J observed in Chan Yuet Keung v Harmony (International) Knitting Factory [2010] 5 HKLRD 599 at §60 and subsequently applied by HH Judge Levy in Liu Kam Chow v Wong Wah Sheung [2015] HKDC 607 at §§37 to 38, expert opinion on the percentage on the LOEC is helpful and admissible in employees’ compensation proceedings. The expertise of the medical practitioner in assessing the LOEC for non-scheduled cases is likely to be of assistance to the Court in assessing employees’ compensation;

(b)  In Chan Yuet Keung (supra) at §58, the Court further observed that in cases of non-scheduled injuries, the assessment of loss of earning capacity, pursuant to Section 9(1)(b) of the Ordinance and the provisos of that sub-section, must reflect and be proportionate to the fixed statutory percentages provided for the scheduled injuries. Medical experts, particularly orthopaedic experts, are familiar with the First Schedule of the Ordinance and the Notes thereto and are adept at assessing the percentage of LOEC for non-scheduled cases and they regularly do so when preparing in their expert reports for employees’ compensation cases. Those reports are admissible and of assistance to the Court in assessing compensation for non-scheduled cases which do not require special treatment under the provisions of Section 9(1A).

25.With respect to the Guides of the Evaluation of Permanent Impairment published by the American Medical Association (“the AMA Guides”), it is of assistance to the Court in its assessment of the LOEC, and it will be considered where appropriate: see eg Abdul Ghafar v Yuen Ming Transportations & Anor [2021] HKDC 550 at §14(d) per DDJ Christopher Chain; citing Chan Yuet Keung (supra) at §62 per Bharwaney J.

26.In deciding whether the Paper Mills Formula should be applied, the following principles are relevant:

(a)  The Paper Mills Formula was held in Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] 1 HKLR 556 and modified by Lui Kwong Yan v Shui Hing Decoration Works & Anor [1993] 1 HKLR 168. The formula is (b - a) / b × c. “a” is the wages or earnings of the job that the applicant is capable of earning by performing the job he is capable of undertaking but assessed as at the date of the accident. “b” is the pre-accident wages or earnings of the employee. “c” is the “lump sum” in Section 7(1)(b) of the Ordinance for permanent total incapacity of the relevant age bracket of the Applicant;

(b)  In line with Section 9(1A) of the Ordinance, the Paper Mills Formula applies when the Applicant can show that there are “special circumstances”, including but not limited to (i) the nature of the injury or injuries in relation to the nature of the Applicant’s former usual employment; (ii) the level of wages in the field of employment which he is capable of doing and his pre-accident employment; and (iii) his qualifications, previous training and experience;

(c)  Whether “special circumstances” exist is a matter of fact, and whether the Paper Mills Formula should be applied in a given situation does not depend on medical evidence alone. The opinions of medical experts are only one of the factors to be taken into consideration.

See Chu Wai Leong v Leung Sum Kee et al Framework, Pipework and Demolish Engineering Ltd [2020] 3 HKLRD 218 (CA) at p 236; Wong Kai Fun v Sun On Logistics & Anor DCEC 5/2013, unrep, 20/5/2013 at §§50-53 per HH Judge Levy.

Assessment based on Section 9(1) of the Ordinance

27.Before I go to consider whether the Paper Mills Formula should be applied, I will first assess the Applicant’s LOEC in accordance with Section 9(1) of the Ordinance.

The orthopaedic evidence

28.The following were stated in the Orthopaedics Report:

(a)  The experts conducted a physical examination of the Applicant on 21 June 2022;

(b)  The examination showed that:

(i)  The Applicant can walk unaided with the ankle-foot orthosis, and he can stand on either leg alone but less stable on his left foot. This is consistent with what the Applicant told the Court during his examination-in-chief;

(ii)  He can fully squat;

(iii)  There is tenderness over his lumbosacral spine and right paraspinal muscle.

(c)  Both experts agreed that the clinical picture of the Applicant is compatible with the diagnosis of a right sacrum (S3-S5 level) undisplaced fracture;

(d)  With respect to only the orthopaedic injury of the undisplaced fracture of the right sacrum, both experts agree that the Applicant should be able to resume his original work. Dr Fu for the Applicant was of the view that his efficiency will be reduced due to his backpain whereas Dr Chiang for the 3^rd Respondent opined that the Applicant should be able to work in the pre-injury job in the pre-injury capacity;

(e)  Dr Fu for the Applicant opined that for the orthopaedic injury alone, both the permanent impairment for whole person (“PIWP”) and loss of earning capacity should be 2%;

(f)  Dr Chiang for the 3^rd Respondent opined that for the orthopaedic injury alone, both the PIWP and loss of earning capacity should be 1%.

29.According to the Applicant, and consistent with the experts’ diagnosis above, his back will not normally feel painful, but the pain will surface when he walks or stands for a long period of time.

30.Having regard to the Applicant’s evidence and the experts’ finding that the Applicant is still suffering from “tenderness over lumbosacral spine and right paraspinal muscle” and upon making reference to the AMA Guide (6^th Edn) which states that the Impairment Rating for “Clause 1” of “Fractures of the pubic rami; fractures of the ilium, ischium and/or sacrum” is between 1% and 3% in cases of “Nondisplaced or minimally displaced fractures…; with residual signs and symptoms”, I consider Dr Fu’s opinion of 2% PIWP and 2% LOEC arising from the Applicant’s orthopaedic condition to be more appropriate.

31.As indicated in the 3^rd Respondent’s written closing submissions, it agrees that Dr Fu’s above opinion should be preferred.

The psychiatry evidence

32.The following were stated in the Psychiatry Report:

(a)  The Applicant was jointly interviewed and assessed by the experts on 29 December 2022.

(b)  During the assessment, the Applicant informed the experts of his condition after the Accident:

(i)  The Applicant can manage self-care activities independently. He can take public transportation himself.

(ii)  He expressed that he has a neutral mood, meaning “not too happy or sad mood”. He had no apathy or anxiety. He continued to have poor sleep with nightmares every night.

(iii)  He continued to be very irritable and had a foul temper after the Accident.

(iv)  He complained of having memory blackouts after the Accident. He also noticed poor memory in daily life, as he would forget what he wanted to buy after going out. After returning home, he would remember what he wanted to buy and then needs to go out again to buy such item(s).

(v)  He had no flashbacks, startle response, hypervigilance, negative thoughts or suicidal ideas.

(c)  The experts agreed on the use of the diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders (5^th Edn) (DSM-5).

(d)  The experts are in agreement that the Applicant has suffered from Major Neurocognitive Disorder due to Traumatic Brain Injury with Behavioural Disturbance (“MND”) and adjustment disorder.

(e)  The experts are in agreement that from the psychiatric perspective, the Applicant’s PIWP is 10%.

(f)  Dr Wong for the Applicant referred to the Psychology Disability Awards Committee Section 23 Guidelines issued by the Workers’ Compensation Board of British Columbia, Canada (“the Section 23 Guidelines”) and opined that:

(i)  The Applicant’s current condition falls in the description for 10-15% (“minor residual symptoms, some increased risk of decompensation under stressful situations, accommodation or different job would not likely completely attenuate phycological impairments”);

(ii)  The Applicant’s LOEC is 10% to 15%.

(g)  Dr Chung for the 3^rd Respondent opined that:

(i)  The Applicant is not fit to return to his pre-injury job due to the MND. He is not mentally fit to work as a construction site worker and driver because of the symptoms of MND and epilepsy. Dr Chung opined that the Applicant is fit to work as a cleaner and other unskilled jobs if his medical condition allows. The mental symptoms of MND would impair his ability to adjust to a job and persist at it. His work efficiency would be mildly impaired by the mental problems.

(ii)  The Applicant’s current condition falls in the description for 10-15% pursuant to the Section 23 Guidelines. Dr Chung further opined that the Applicant’s LOEC is 10%, “[p]urely for the parties’ reference”.

33.Both experts agree that the Applicant’s PIWP is 10% and his LOEC falls within the range of 10%-15%, given that Dr Chung for the 3^rd Respondent did not elaborate on the basis for him to find the Applicant’s LOEC should be 10%. Given the totality of the evidence before me, I consider it more appropriate to take the median of 12.5% as the LOEC arising from psychiatric impairment.

34.The above is also the approach suggested by the Applicant and agreed to by the 3^rd Respondent in its writing closing submissions.

The Neurology evidence

35.The following were stated in the Neurology Report:

(a)  The experts jointly assessed the Applicant at Dr Yu’s clinic.

(b)  During the assessment, the Applicant complained of the following neurological symptoms and disabilities:

(i)  The Applicant experiences intermittent dizziness of moderate intensity. It is a sense of disequilibrium if he looks up while walking;

(ii)  His thinking process and memory have been impaired. His ability to perform mental tasks has deteriorated. His recent memory is poor, but long-term memory is relatively preserved. As an example of his poor memory, he may forget what he has set out to purchase;

(iii)  He has become easily irritable and intolerant to noise;

(iv)  He has an erratic diurnal rhythm;

(v)  He has developed seizures. The first attack took place in early 2020. Thereafter, he continued to have focal seizures (twitching of the left limbs without loss of consciousness) at a frequency of once or twice a month, but he has not had any seizures in the past 6 months;

(vi)  He has loss of smell sensation and distorted taste sensation. He has a total anosmia;

(vii)  He has left facial weakness. His left facial palsy has improved but he still cannot close his left eye completely;

(viii)  Left upper limb and left lower limb weakness; and

(ix)  He has intermittent headaches.

(c)  Both experts agreed that the Applicant’s neurological conditions have reached maximum medical improvement by 2 years after the Accident.

(d)  With respect to residual disabilities:

(i)  Dr Yu for the Applicant opined that the Applicant’s residual disabilities include neurocognitive and neurobehavioral impairments, epilepsy, anosmia with taste disturbance, facial weakness, weakness on the left lower limb, dizziness and headache.

(ii)  Dr Woo for the 3^rd Respondent opined that the Applicant’s residual disabilities include nonspecific dizziness, impaired memory, irritability, anosmia, facial paresis, focal seizure and a left foot-drop.

(e)  From the neurological perspective, Dr Yu for the Applicant and Dr Woo for the 3^rd Respondent respectively assessed the PIWP with reference to the AMA Guide (6^th Edn) to be 23% and 20%, as follows:

Items	Dr Yu	Dr Woo
Dizziness	1%	N/A
Impaired memory and irritability	N/A	2%
Neurobehavioral impairment	10%	N/A
Neurocognitive impairment	6% [1]	N/A
Epilepsy	5% [2]	3%
Anosmia	3%	3%
Left facial palsy	2%	2%
Station and gait impairment	7%	10%
Combined PIWP	23% [3]	20%

(f)  Dr Yu for the Applicant opined that judging from his mild neurocognitive impairment and his understanding of the legal proceedings and financial management, the Applicant has sufficient capacity in managing and administering his own properties and affairs. Dr Woo of the 3^rd Respondent opined that the Applicant has no cognitive or emotional disorder which may impair his mental capacity.

(g)  Both experts agreed that the neurological deficits do not impose any restriction on the Applicant’s activities of daily living.

(h)  As to work potential and loss of earning capacity:

(i)  Dr Yu for the Applicant took the view that with the Applicant’s current neurological impairment, he cannot resume work as a metal worker or any other jobs on construction sites. Because of epilepsy, he should not be engaged in work which may cause danger in the event of seizures, e.g. vocational driving, work at height or with electrical or mechanical appliances. He should be medically fit for low intensive manual work such as that of a cleaner. Dr Yu opined that the LOEC is 40%, taking into account the salary difference between his pre-injury job at the construction site and the job of a cleaner, carpark attendant or equivalent (of which he is mentally fit).

(ii)  Dr Woo of the 3^rd Respondent opined that the Applicant may have difficulty resuming his pre-injury occupation as a metal worker/welder at construction sites. He is suited for sedentary and manual tasks such as security officer or carpark attendant. Dr Woo estimated the Applicant’s loss of earning capacity to be at 20%.

36.I consider it more appropriate to adopt Dr Woo’s assessment of 20% as the combined PIWP arising from the Applicant’s neurological disabilities. I have considered the following in particular:

(a)  Dizziness: Both experts agreed that the Applicant is suffering from the residual disability of dizziness, as the Applicant described during his oral evidence that he will feel dizzy whenever he puts his head up and he cannot balance himself. While the condition was not recorded in the Applicant’s previous medical reports, as the condition is intermittent and will only occur when the Applicant’s head is put up, I accept that such a condition has persisted even though it has not been noted down in the medical reports.

(b)  Memory impairment: It is Dr Woo for the 3^rd Respondent’s expressed observation that the Applicant is suffering from memory impairment. The Applicant has also complained of having memory blackouts to the neurological experts as well as the psychiatry experts. For example, sometimes after the Applicant sets out to buy something, he cannot recall what he wanted to purchase and needs to return home. Hence, the Applicant’s memory impairment should be taken into account in assessing his PIWP.

(c)  Irritability: It is Dr Woo for the 3^rd Respondent’s expressed observation the Applicant’s residual disabilities include irritability. As recorded in the consultation summary for the Applicant’s psychiatry consultation at the Castle Peak Hospital on 7 July 2021, the Applicant complained that he had has increased irritability for 1 year and he was sensitive to noise. As to the fact that there was no record of irritability in the subsequent medical reports, the Applicant said that he could not recall whether the doctors had followed up with him about his temper subsequently but he recalls the doctors focused on his sleep condition at every consultation. The Applicant did consistently raise his irritability condition with the neurological experts as well as the psychiatric experts. Based on the above, I am prepared to accept that the Applicant’s condition of irritability is subsisting, such that this condition should be taken into account in assessing his PIWP.

(d)  Seizures: Both experts agreed that the Applicant is suffering from epilepsy/focal seizures. When the Applicant was examined by the experts, he told them that his seizure has a frequency of once or twice a month, but he has not had any seizures in the past 6 months. It appears that the Applicant’s seizure condition has improved since he attended the examination of the experts, as he confirmed during cross-examination that his seizure now occurs once every 2 to 3 months, but without any forewarning. I have taken into account the above improvement in the Applicant’s condition in my decision to adopt the lower assessment of 20% as the PIWP.

(e)  Station and gait impairment: Both Dr Yu and Dr Woo agreed that the Applicant is suffering from station and gait impairment, and have respectively assigned 7% and 10% as the PIWP arising therefrom. I am of the view that the Applicant’s station and gait impairment should be taken into account in assessing his PIWP.

(f)  Lastly, I agree with the 3^rd Respondent’s submissions that there may be a degree of overlap between the PIWP assessment of the psychiatrists and the neurologists as they both seem to have taken into account the Applicant’s neurological behavioural symptoms, e.g. memory impairment and irritability in their assessment. This is a further reason warranting the adoption of the lower percentage of 20% PIWP proposed by Dr Woo for the 3^rd Respondent.

37.Moving on to the LOEC, I am of the view that if the Applicant’s LOEC is assessed with reference to his PIWP, the LOEC should be 20%. I note that Dr Yu for the Applicant opined that the Applicant’s LOEC should be 40%. However, Dr Yu’s assessment was not made with reference to the Applicant’s PIWP but was made by taking into account the salary difference between the Applicant’s pre-injury job and the job of a cleaner, car park attendant or equivalent. However, whether there is any salary difference between the Applicant’s pre-injury job and his potential new job and, if so, the extent of the difference is a matter of factual assessment for the Court. Hence, I will not adopt Dr Yu’s assessment of the LOEC.

The ENT evidence

38.The single joint expert Dr Au opined while the Applicant’s otorhinolaryngology deficiencies amount to 7% PIWP, they would not affect his ability to resume his pre-injury job.

Assessment based on Section 9(1) of the Ordinance

39.The LOEC assessed in accordance with Section 9(1) of the Ordinance would be:

Disciplines	LOEC
Orthopaedic	2%
Psychiatric	12.5%
Neurologic	20%
Total	34.5%

40.For cross-checking purposes, I have referred to the First Schedule of the Ordinance. As the injury suffered by the Applicant is not specified in the First Schedule, and it is not comparable to the injuries listed therein, I consider the references in the First Schedule of limited relevance to my assessment in the present case.

Whether the Paper Mills Formula should be applied

41.Having considered the evidence, the Applicant and the 3^rd Respondent’s submissions, I am of the view that it is appropriate to apply the Paper Mills Formula in the present case.

42.I accept that the evidence shows that the Applicant cannot return to his pre-injury job of being employed as a general worker (metal):

(a)  It is the agreed view of the neurological experts that the Applicant cannot return to his pre-injury job given the neurological impairment caused by his injury;

(b)  Dr Chung, the psychiatric expert for the 3^rd Respondent, also took the view that the Applicant is not fit to return to his pre-injury job due to the MND and that he is not mentally fit to work as a construction site worker and driver because of the symptoms of MND and epilepsy; and

(c)  The above expert evidence is consistent with the Applicant’s Occupational Therapy Work Rehabilitation Assessment dated 7 July 2022, which stated that “Degree of Match between Work Capacity and Job Demands: Not march, with significant degree of limitation”.

43.As to the job which the Applicant can manage to take up after his injury, Dr Chung (the psychiatric expert for the 3^rd Respondent) and Dr Yu (the neurological expert for the Applicant) opined that low intensive and unskilled jobs such as being employed as a cleaner would be an option for the Applicant. In addition, Dr Yu and Dr Woo (the neurological expert of the 3^rd Respondent) opined that being employed as a carpark attendant would also be possible for the Applicant.

44.It is my view that given the Applicant’s impairments, as summarised above, the work which he would be able to take up would be that of a lavatory cleaner. According to the Quarterly Report of Wage and Payroll Statistics (“the Statistics”), the monthly salary of a lavatory cleaner is HK$10,636.

45.The Applicant may not be suitable to act as a carpark attendant, given that according to the Note (2) to the Statistics, the major duties of building attendants (carpark) include “to prevent unauthorised entry into the building (carpark)”, “to rush to the scene to assist and report to the police as appropriate if an emergency occurs”. As the Applicant is suffering from MND and epilepsy, he may not be able to carry out the above tasks required of a carpark attendant.

46.While the Applicant was employed as a security officer for 10 years before working as a metal worker in construction sites and had the prospect of being promoted to act as the principal supervisor-in-charge, given his current impairments, including his MND and epilepsy, he is no longer fit to take up the job of a security officer, which, according to Note (2) of the Statistics, has to carry out duties including “to prevent unauthorised entry into the building”, “patrol regularly to prevent violence, fire or disturbances” and “to rush to the scene to assist and report to the police as appropriate if any emergency occurs”.

47.For the above reasons, there are special circumstances and actual evidence showing that the Applicant cannot resume his pre-injury job. The agreed monthly salary which the Applicant can receive under his pre-injury job as a general worker (metal) was HK$27,500, whereas the salary of the Applicant’s alternative employment as a lavatory cleaner post-injury would be HK$10,636 according to the Statistics. The difference in earnings in percentage is 61.33%, which is substantially more than the percentage assessed according to Section 9(1) of the Ordinance (34.5%) and clearly proven on the evidence before me.

48.In the circumstances, I will apply the Paper Mills Formula for the purposes of assessing the Applicant’s Section 9 compensation. The compensation is therefore assessed at HK$27,500 × 96 × 61.33% = HK$1,619,112.

VII.  Section 10 Compensation

Whether the Applicant’s entitlement to periodic payment should be extended

49.Section 10 of the Ordinance 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 payments 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.

…

(5) An employee who has received periodical payments under this section for a period of 24 months from the date of the commencement of the temporary incapacity or for such further period being not more than 12 months as the Court may allow in any particular case shall no longer be entitled to periodical payments under this section but shall be deemed to have suffered permanent incapacity and the provisions of section 7 or 9, as the case may be, shall apply to the employee.” (Emphasis allowed)

50.As certified by the Form 9 and agreed by the Applicant and the 3^rd Respondent, the sick leave period is 36 months. There is no evidence to suggest that the Applicant has obtained the sick leave by fraud or that he has received any earnings during the above period. I am prepared to exercise my discretion under Section 10(5) of the Ordinance to extend the period which the Applicant is entitled to periodic payment to 36 months.

Whether the Applicant’s monthly earnings should be adjusted after each period of 12 months

51.Section 11 of the Ordinance provides for the monthly earnings as follows:

“Method of calculating earnings

(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.

(1A) Where an employee suffers temporary incapacity after an accident and such incapacity extends beyond 12 months after the date of the accident the monthly earnings of an employee at the time of the accident shall, in respect of temporary incapacity beyond the 12-month period after the date of the accident, be computed for the purposes of section 6, 7, 9 or 10 as being the earnings calculated —

(a) where the employer employs, in similar employment, other persons of similar earning capacity to the employee, as the earnings that, if the accident had not occurred, the employee would have received at the end of a 12-month period after the date of the accident in accordance with the average rate of increase in respect of the earnings of other persons of similar earning capacity employed by the employer in similar employment;

(b) where the employer does not employ, in similar employment, other persons of similar earning capacity to the employee, as the monthly earnings of the employee computed under subsection (1) or (2) and adjusted in accordance with the rate of increase in the Consumer Price Index at the end of a 12-month period after the date of the accident.

(1B) Where an employee suffers temporary incapacity after an accident and such incapacity extends beyond 24 months or such further period as the Court may have allowed under section 10(5) the monthly earnings of an employee at the time of the accident shall, in respect of temporary incapacity beyond the 24-month period or beyond such further period after the date of the accident, be computed for the purposes of section 6, 7, 9 or 10 as being the earnings calculated —

(a) where the employer employs, in similar employment, other persons of similar earning capacity to the employee, as the earnings that, if the accident had not occurred, the employee would have received at the end of a 24-month period after the date of the accident in accordance with the average rate of increase in respect of the earnings of other persons of similar earning capacity employed by the employer in similar employment;

(b) where the employer does not employ, in similar employment, other persons of similar earning capacity to the employee, as the monthly earnings of the employee computed under subsection (1) or (2) and adjusted in accordance with the rate of increase in the Consumer Price Index at the end of a 24-month period after the date of the accident.” (Emphasis added)

52.The Applicant relies on Sections 11(1A)(b) and 11(1B)(b) of the Ordinance and invites this Court to adjust the monthly earnings in accordance with the relevant rates of increase in the “Consumer Price Index” (“at the ends of both of the 12-month period and the 24-month period after the date of Accident.

53.It is my view that on a proper construction of Section 11 of the Ordinance, the Applicant’s situation falls within Sections 11(1A)(b) and 11(1B)(b).

54.As a starting point, it is apparent that the legislative intent underlying Sections 11(1A) and 11(1B) is to protect the interest of injured employees who may need to go through a lengthy period of sick leave and to ensure that the monthly earnings for the purposes of calculating their compensation under, e.g. Section 10 of the Ordinance would take into account the impact of inflation during the period of their sick leave.

55.I agree with the observation by DDJ Simon Ho in Tang Yam Kau v Key Asia Engineering Limited DCEC 694/2011 (unrep, 25/7/2014) at §§86 to 87 that the statutory protection under Section 11(1A) and Section 11(1B) as conferred upon the relevant injured employees to counter the depreciation in monetary worth of the compensation is two-tiered:

(a)  The primary tier would allow the injured employee’s monthly earnings at the time of accident to be adjusted upwards by making reference to the average rate(s) of increase of the post-accident earnings of comparable workers employed by his or her employer at the relevant point(s) of time stipulated in Section 11(1A)(a) and/or Section 11(1B)(a).

(b)  The fallback tier, which the Applicant is relying on in the present case, is that in the absence of data for such comparable workers’ earnings for making any adjustment as aforesaid, such injured employee can still seek for the upward adjustment by referring the Court to the rate(s) of increase in the Consumer Price Index at the relevant point(s) of time stipulated in Section 11(1A)(b) and/or Section 11(1B)(b).

56.The first sentence of Sections 11(1A)(b) and 11(1B)(b), “where the employer does not employ, in similar employment, other persons of similar earning capacity to the employee,” should be construed as a whole, referring to the situation where there is no actual reference which the Court can rely on to calculate the rate of increase of the injured employees’ monthly earnings for the periods beyond 12 months after the date of the accident. In such circumstances, the Court can rely on the fall back and refer to the relevant Consumer Price Index for the rate of increase. The focus here is the evidence/information which the Court should rely on to calculate the rate of increase of the monthly earnings to protect injured employees to counteract the effect of inflation.

57.I do not consider the Court of Appeal’s judgment in Lai Ka Wai 及 Mei Fai Hong Kong Engineering Ltd [2021] HKCA 1036 to be inconsistent with the above construction of Sections 11(1A)(b) and 11(1B)(b). In the present case, while the Applicant accepted during cross-examination that the 1^st Respondent had employed 4 other employees in similar employment (as metal workers), he said that the daily rate of the 4 other employees were different from his. The Applicant further said that after the accident, the salary of one of the above employees had become higher than his. It cannot be said that the 4 other employees are of similar earning capacity as the Applicant. Therefore, the Applicant’s situation does fall within Sections 11(1A)(b) and 11(1B)(b) where there is no evidence that the employer has employed, in similar employment, other persons of similar earning capacity to the employee at the relevant times.

58.As to Lee Kam Lin v Full Wise Ltd [2015] HKDC 607, the Deputy District Judge’s comments are obiter in nature, as he made clear that the point about the construction of Section 11(1B)(b) was not argued before him and he was not required to make any decision on it.

59.Having found that the Applicant can invoke Sections 11(1A)(b) and 11(B)(b), the Applicant’s monthly earnings should be increased according to the CPI (A) in May 2020 and May 2021 submitted by the Applicant, which show that the respective rates of increase were +1.7% and +1.9%.

Assessment

60.The Applicant’s Section 10 compensation is therefore assessed to be HK$806,078.20 as calculated below:

Period	Formula	Amount (HK$)
20 May 2019 to 19 May 2020	HK$27,500 × 12 × 4/5	264,000.00
20 May 2020 to 19 May 2021	HK$27,967.50 [4] × 12 × 4/5	268,488.00
20 May 2021 to 19 May 2022	HK$28,498.90 [5] × 12 × 4/5	273,589.40
	Total	806,077.40

VIII.  Section 10A compensation

61.As mentioned above, the parties have reached an agreement that the medical expenses to which the Applicant is entitled under Section 10A of the Ordinance are HK$24,479. The compensation under this Section is HK$24,479.

IX.  Conclusion and order

Compensation

62.By reason of the above, the total award of compensation to the Applicant is HK$1,924,106.20, as calculated below:

Items	Amount (HK$)
Section 9	1,619,112.00
Section 10	806,077.40
Section 10A	24,479.00
Gross total	2,449,686.40
Less advanced payments received	525,581.00
Net total	1,924,105.40

Interest

63.The Applicant is entitled to interest at half judgment rate from the date of the Accident (i.e. 20 May 2019) to the date of judgment and thereafter at judgment rate until the date of payment.

Costs

64.As agreed between the Applicant and the 3^rd Respondent, there be no order as to costs between the Applicant and the 3^rd Respondent in respect of the assessment of compensation.

65.Last but not least, I thank counsel for their helpful assistance.

Ms Christina Lee, instructed by Jimmie K S Wong & Partners, assigned by the Director of Legal Aid, for the Applicant

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

Mr Eric Tsoi, instructed by Gallant, for the 3^rd Respondent