Chan Kam Wing v. Esprit Container Transportation (China) Ltd.

DCEC000004/2000

DCEC 4/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE
NO. 4 OF 2000

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Coram: H.H. Judge Andrew Cheung in Court

Dates of Hearing: 3 and 4 September 2001

Date of Handing Down Judgment: 15 September 2001

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J U D G M E N T

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1.In these proceedings, the Applicant claims employees' compensation from his alleged former employer, the Respondent, in respect of an industrial accident that happened to the Applicant on 9th April 1998. The principal issue before the Court in relation to liability is whether the Applicant was an employee or independent contractor of the Respondent. So far as quantum is concerned, the only dispute relates to the Applicant's actual loss of earning capacity for the purpose of calculating compensation for permanent partial incapacity.

Liability

Facts

2.The Applicant was born in Hong Kong on 20th August 1960. He received education in Hong Kong up to form 3 level. After working as a metal moulding worker for several years, he changed to work as a driver in 1983. At the beginning, he drove minibus. After about five years, he became a taxi driver and worked as such for about four years. He then obtained a container truck driving licence in about 1991. Since 1992 until he met the subject accident in April 1998, he worked as a container truck driver.

3.It is common ground that in around September 1997, the Applicant was introduced by a friend, Mr. Tsui Ka Keung, to the Respondent, a local company engaged in local as well as Hong Kong-Mainland transportation business, to work as a container truck driver. Mr. Tsui Ka Keung gave evidence in these proceedings and said that he had been working with the Respondent since 1996 as a container truck driver on an independent contractor basis under a written contract, doing only local transportation work. When he learned from the person in charge of the Respondent, a Ms. Michelle Ng, that the Respondent was looking for a cross-border driver, Mr. Tsui introduced his friend, the Applicant, to the Respondent for the work.

4.Although there were some minor differences between the respective evidence of the Applicant and Ms. Ng regarding when and where the two of them discussed details of the Applicant's working for the Respondent as a container truck driver, the terms of their agreement, with the exception of one or two matters which I shall deal with in due course, are reasonably clear. The Applicant would primarily do cross-border transportation work but where required he would do local work as well. For a piece of cross-border work, the Applicant would be paid 28 percent of the gross transportation fee the Respondent charged its customer for the delivery job. The transportation fee depended on the destination and was fixed by the Respondent. If the total transportation fees for a month exceeded $100,000, the Applicant's remuneration would be 30% of the gross fees. For local work, the Applicant's remuneration was fixed at $150 per single journey. Moreover, at the end of the year, the Respondent would pay the Applicant a year-end bonus equivalent to 1% of the total gross transportation fees attributable to the Applicant's work for that year.

5.Moreover, as part of the agreement between the Applicant and the Respondent, the container truck and trailer would be provided by the Respondent which owned both the truck and trailer. All the necessary cross-border permits and papers required by the authorities on both sides of the border would be applied for by and at the expense of the Respondent. The fuel would be paid for by the Respondent which would also be responsible for the payment of all road and tunnel tolls, motoring expenses, parking expenses and miscellaneous expenses associated with the transportation work. A monthly allowance of $1,000 would be given to the Applicant to defray the necessary expenses.

6.Because of the way the necessary driver's permit and papers were prepared and issued, the Applicant could only drive the container truck belonging to the Respondent and designated in the permit and papers in the Mainland. He could not drive into the Mainland using another container truck not designated in the permit and papers. As admitted by Ms. Ng, this means that effectively the Applicant could only work for the Respondent but no one else so far as cross-border transportation work was concerned. In other words, the Respondent had the exclusive service of the Applicant as its cross-border transportation driver.

7.The transportation work all came from the Respondent. In other words, the Applicant only did work which came from the Respondent. He was not responsible for introducing work to the Respondent nor did he carry out any transportation work which came to him personally instead of the Respondent. He did the work as he was told by the Respondent to do. According to the Applicant, he had mentioned to Ms. Ng that for security reasons he did not prefer transportation work to Shantow in the Mainland. Ms. Ng in giving evidence agreed that the matter had been raised and discussed before Mr. Ng commenced working for the Respondent in September 1997. According to the Applicant's understanding, ultimately he had no choice but to obey the Respondent's order regardless of the destination of any particular transportation job. He could not pick and choose. According to Ms. Ng, the Respondent could not force a driver to drive to a place where he did not want to go. But if the driver was unreasonable in refusing the Respondent's requirement, and if this behaviour persisted, this would no doubt lead to the determination of the relationship between the driver and the Respondent. In this regard, I do not perceive that there was any real difference in evidence between the Applicant and Ms. Ng. Each was viewing the matter from his or her own angle. In my judgment, the relationship between the parties was such that the Applicant would not without good reasons or excuses refuse an order given by the Respondent, and on the other hand the Respondent would reasonably consider any objections or fears raised by the Applicant in relation to any particular job ordered to be done by the Respondent.

8.Both the Applicant and Ms. Ng agreed that every month the Respondent would pay a sum of $8,000 to the Applicant. This sum was inclusive of the sum of $1,000 being allowance to defray miscellaneous expenses mentioned above. Both agreed that the remaining $7,000 would be deducted from the monthly remuneration of the Applicant calculated in accordance with the total transportation fees earned by the Applicant for the Respondent during the month after the calculations were finalised. But the common ground stopped there. The Applicant maintained that not only did the money serve as a prepayment of his monthly remuneration, it also represented his guaranteed basic monthly salary, so that if for whatever reason (not due to his fault) his total monthly transportation fees earned failed to produce a remuneration exceeding $8,000 for that month, he would be entitled to keep the difference between $8,000 and the remuneration calculated according to the agreed method. Ms. Ng disagreed and maintained that the money was nothing other than a prepayment as the actual monthly remuneration could not be calculated until after all figures were finalised and payments made by the customers. If there was any excess in payment, the excess would have to be carried forward to the following month and deducted from the remuneration payable to the Applicant for that following month. But Ms. Ng also admitted that at the time, in the normal course of events, and provided the Applicant would not unreasonably refuse the Respondent's orders, his income was expected to be in excess of $8,000 per month.

9.Another area of disagreement between the Applicant and Ms. Ng was that the Applicant said in evidence that it was important to him that he be regarded as an employee of the Respondent and therefore he had chased the Respondent several times for signing a written employment contract. But Ms. Ng, according to the Applicant, was too busy, and since he trusted her, the matter was eventually dropped. In other words, no written contract was signed. Ms. Ng, however, denied that the Applicant had ever chased her for signing an employment contract. She said in evidence that although she had not told the Applicant specifically that he was to be a self-employed driver working for the Respondent, in her mind she regarded the Applicant as being no different from the other three drivers working for the Respondent including Mr. Tsui, i.e. that they all worked as independent contractors of the Respondent. She agreed that no written contract was signed with the Applicant (unlike the case of Mr. Tsui). I should also mention here that Mr. Tsui said in evidence that he was an independent contractor working for the Respondent under a written contract. But the written contract was not placed in evidence before me, nor were the details of the written contract made known to the Court. Mr. Tsui disclaimed any knowledge of the details of discussion or agreement between the Applicant and Ms. Ng. So far as taking out employees' compensation insurance is concerned, both the Applicant and Ms. Ng agreed that the matter was not raised by either side.

10.Having heard the evidence of the Applicant, Ms. Ng and Mr. Tsui, having observed their demeanour in the witness box, and taking into account the documentary evidence and surrounding circumstances, I have come to the conclusion that so far as the true nature of the monthly payment of $8,000 was concerned, both the Applicant and Ms. Ng were approaching the matter from their respective angles and both were telling the Court their own understanding of the hypothetical situation where the income calculated according to the agreed method was less than $8,000 which was never expected or anticipated by the parties at the time and which never as a matter of fact happened. In other words, in my finding, the parties' minds crossed in this regard, and they were not ad idem as to what should happen to the money in the unlikely event that income calculated according to the agreed method should fall short of $8,000. I should add at this juncture that as a matter of fact for the period of slightly over seven months during which the Applicant worked for the Respondent, his income calculated according to the agreed method was on average in excess of $27,000 per month. My reading of the evidence is that the parties never specifically addressed this eventuality of the income calculated according to the agreed method being less than $8,000, and in the box Ms. Ng and the Applicant were simply giving evidence on this matter according to their own understanding and interpretations respectively.

11.As regards the question of whether the Applicant had chased the Respondent for the signing of a written contract, I find that the Applicant may have exaggerated slightly his concern at the time that he should be accorded an employee status and he wanted a signed employment contract to protect himself. With the benefit of hindsight, given the happening of the accident and the Respondent's attitude of treating him as an independent contractor, one can of course easily see the wisdom of having a signed written employment contract. But back at the time when the parties first met and discussed about their working relationship, there was, at least according to the evidence given by the Applicant, no particular reason why the Applicant should have been particularly concerned about his status as an employee as opposed to an independent contractor (assuming that as a layman he appreciated the legal implications of and differences between the two). That said, I am not totally rejecting his evidence that he had repeatedly chased the Respondent for the signing of a written contract. For after all Mr. Tsui had signed a written contract with the Respondent, and Ms. Ng said in evidence that she was treating the Applicant in the same way as she treated the other drivers amongst whom at least Mr. Tsui had on the evidence a written contract. In my finding, the Applicant had indeed asked to sign a contract with the Respondent, but Ms. Ng was too busy at the time to attend to the documentation, and subsequently the matter was forgotten and dropped. As to what terms would have been contained in such a contract had one been produced by the Respondent for the Applicant's signature, whether the Applicant would have agreed to those terms, and whether under those terms (and taking into account all other relevant considerations) the Applicant would be regarded as an independent contractor or employee, there is simply no way one can tell, and it is not for me to speculate here. As I said, Mr. Tsui's written contract was not put in evidence before me, and Mr. Tsui's claim that he was an independent contractor under the written contract simply represented his subjective belief and understanding, and has no evidential value relating to the issue before me, namely, whether the Applicant was an employee or independent contractor of the Respondent.

12.As I said, the Applicant was injured at work on 9th April 1998. A trailer which the Applicant said Mr. Tsui borrowed from another transportation company for his use was involved in the accident. Both Ms. Ng and Mr. Tsui denied that they knew about the alleged borrowing beforehand. At trial, both sides in this regard led evidence, although quite obviously the matter was not directly relevant to the issues in these employees' compensation proceedings. Put at the highest, the matter may have some relevance to the general credibility of the Applicant, Ms. Ng and Mr. Tsui. I find this matter to be of no particular help to my resolving the differences in evidence between the various witnesses relating to the real issues before me as outlined above. I do not find it necessary to make any finding on this particular matter about the trailer which in my judgment is of the remotest relevance to the issues before me or the credibility of the witnesses relating to the material matters in dispute. Conceivably, all three may have a reason or motive to lie in relation to the alleged borrowing of the trailer, a matter which may be of relevance in the related common law proceedings. But having considered the picture as a whole, I consider that a finding that a particular witness lied or did not lie to the Court in relation to the trailer issue would be of most negligible help (if any at all) to me in resolving the differences of the witnesses in relation to the material issues before me which I have already dealt with above.

Law

13.The law applicable is reasonably well settled and is contained in the following well-known passage of Cooke J in Market Investigations v Minister of Society Security [1969] 2 QB 173, 184-185, which was fully endorsed by the Privy Council in Lee Ting-lam v Chung Chi-keung [1990] 1 HKLR 764, 767-768:

"[T]he fundamental test to be applied is this: 'Is the person who has engaged himself to perform these services performing them as a person in business on his own account?' If the answer to that question is 'yes' then the contract is a contract for services. If the answer is 'no,' then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task."

14.There are of course numerous cases, both local and overseas, applying the relevant tests and deciding this familiar question of whether a person was an employee or an independent contractor. Furthermore, I note that in Lai Sing Ping v Kwong Wan Kai Transportation Co. Ltd. HCPI1084 of 1997 (25/2/99), Beeson J had to decide the status of a cross-border container truck driver under broadly similar circumstances, although in that case there was a written contract signed. But at the end of the day, this is a question of fact which must be decided according to the facts peculiar to an individual case. Bearing the applicable principles in mind, and modelling myself in particular on the way the Privy Council approached the primary facts in the case of Lee Ting-sang (at pp.767B - 768G), I shall now proceed to examine the facts and circumstances in this case.

Present case

15.First, I agree with Ms. Lee, counsel for the Applicant, that the subjective beliefs and intention of, or labels used by, the parties are of no appreciable weight (Chan Kwok-kin v Mok Kwan-hing [1991] 1 HKLR 631, 635H). So in the present case, no matter how much the Applicant wanted himself to be an employee of the Respondent, and likewise regardless of Ms. Ng's subjective intention that the Applicant should work as an independent contractor of the Respondent, the matter must be decided objectively. I should add that in this regard the fact that Mr. Tsui considered himself an independent contractor of the Respondent is quite irrelevant to the case of the Applicant, not only because the terms of the contract of Mr. Tsui with the Respondent are not known and the case of the Applicant is not necessarily the same as that of Mr. Tsui's, but also because Mr. Tsui's subjective understanding of his own position vis-à-vis the Respondent is in itself of no or no appreciable weight in determining the true relationship between him and the Respondent (which is of course not a matter before me).

16.Second, it is plain from the evidence that the Applicant did not provide his own equipment. The truck, trailer, vehicle insurance, local parking space, fuel, parking expenses in the Mainland, road and tunnel tolls and other motoring expenses, necessary cross-border licences, permits and documentation and so forth, were all provided by or the responsibility of the Respondent.

17.Further, the Applicant did not hire his own helpers. In fact according to the cross-border documentation arrangement, he could not hire a substitute driver to drive his truck for him, nor could he, according to his unchallenged evidence, of his own motion find somebody to transport the container (using that somebody's container truck) and do the job for him. According to Ms. Ng, if the four drivers of the Respondent could not handle the business, the Respondent would farm out the work to outside drivers or transportation companies involved in the same business. It was no part of the Applicant's business in such circumstances to enlist any outside driver or company to take up the job obtained by the Respondent. Moreover, as I mentioned above, all business came from the Respondent, and not the Applicant. It was not his responsibility to find business, nor could he use the container truck belonging to the Respondent to do outside business. For that matter, he could not drive someone else's container truck into the Mainland either, as his special driver's permit only allowed him to drive the Respondent's container truck into the Mainland.

18.This leads me to a related point, namely, that in effect the Respondent had the exclusive service of the Applicant, and if the Applicant did not drive for the Respondent, he could drive for no one else. On the other hand, Ms. Ng's evidence was that her company would give all the work to its four drivers, and it was only when none of them was able to take up the work that the Respondent would engage outside drivers or transportation companies to take up the work. So there was quite obviously a mutual and exclusive commitment by the Applicant and Respondent to each other.

19.Also a related point is this. The Applicant had no responsibility for investment in, or management of, the transportation work. The Respondent got the orders from its customers, negotiated the prices and terms of their engagement, and decided alone whether to accept the orders or not and on what terms. The Applicant had no say in the prices the Respondent charged its customers, although the Applicant was remunerated by a percentage of the prices so charged. The Applicant could not by sound management in the performance of his task improve or significantly improve his income which was basically determined by the amount of business obtained by the Respondent and the prices charged by the Respondent as to which the Applicant had no say. The Applicant did not invest in the purchase of the container truck and trailer, nor was he responsible for their maintenance, insurance or parking. He did not pay for the recurrent expenditure. Nor did he pay for his own special driver's permit or other papers necessary to drive across the border. The Applicant simply turned up for work and drove the container to whatever destination he was told he had to drive to in order to make the delivery. He was just there to use his skill and experience as a cross-border driver in performance of his task.

20.No doubt the Applicant was paid in accordance with the amount of work he did for the Respondent. The more he did, the more he earned. But this is true with all piece-workers and those paid on a daily rate.

21.As regards control and supervision, plainly the Applicant's worth lied in his skill and experience as a cross-border driver. He was retained to exercise his skill and quite obviously he required little if any supervision in this regard. All that was needed was that he be told where he was to drive to, and the rest would be taken care of by him. If he had any questions or problems, he asked Mr. Tsui for help and advice who, according to Mr. Tsui's own evidence, would in turn seek the direction of Ms. Ng in case of any important matter. As regards control, I have already dealt with the parties' understanding regarding whether the Applicant could refuse a job required by the Respondent. My finding above in this regard in fact suggests a reasonable amount of control having been exercised or exercisable by the Respondent over the jobs which the Applicant had to carry out.

22.The Applicant ran no risk financially whatever save that of the Respondent not being able to obtain sufficient business for him to do. Every employee faces a similar risk in that if his employer's business is not good, he may not get a pay rise or may even have his pay cut or lose his job altogether. This is not a risk one is concerned with in the present context, namely, the attendant financial risks of a person venturing into business on his own account as an independent contractor.

23.In my judgment, taking all the above matters and the entire circumstances of this case into account, the picture emerges of an experienced cross-border container truck driver earning his living by working as such for the Respondent, rather than a professional driver venturing into business on his own account as an independent contractor with all its attendant risks. In particular, his position was very much different from that of a driver who owns and drives his own truck and trailer in transportation of goods of his own customers or customers referred to him by one or more transportation companies with which he has entered into a collaboration arrangement as an independent contractor or on an ad hoc basis, with its potential for gain as well as attendant financial risks. I note that Beeson J also arrived at a similar conclusion in Lai Sing Ping, supra, based on facts pertaining to that case.

24.In other words, I find as a fact that at all material times the Applicant was an employee in the employ of the Respondent. In the circumstances, given that the accident quite obviously happened in the course of and arose out of the Applicant's employment with the Respondent, the Respondent is liable to pay employees' compensation to the Applicant in respect of the accident and the resulting injuries and loss.

Quantum

25.As regards the quantum of compensation, the only dispute between the parties is in relation to compensation for permanent partial incapacity under section 9 of the Employees' Compensation Ordinance (Cap.282). The Respondent maintains that since the Employees' Compensation (Ordinary Assessment) Board has assessed the Applicant's permanent loss of earning capacity at 27 percent, his compensation under section 9 should be computed accordingly, and therefore the compensation payable is $466,560. The formula, the figures to be used, and the calculations are not disputed by the Applicant as such. But the Applicant argues that his case falls within section 9(1A) of the Ordinance which reads as follows:

" (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."

26.According to the Certificate of assessment and Certificate of review of assessment, the Applicant sustained a back injury resulting in fractured L1, pain and depression. Loss of earning capacity was assessed at 27 percent. According to the medical reports from the government hospitals involved, the Applicant suffered a fracture of his first lumbar vertebrae. CT scan showed a fracture of the anterior rim of the right acetabulum. There were compressions of the vertebral cord at the L2/3 and L4/5 regions, especially at the fracture site. Moreover, arising out of the accident, the Applicant had a history of depression and harboured suicidal ideas. Although one of the reports referred to the Applicant having a second accident on 29th June 1998, I accept the unchallenged evidence of the Applicant that this was only a very minor accident which took place while he was accompanying his pregnant wife to Tuen Mun Hospital, and am satisfied that the Certificates from the Assessment Board correctly set out the injuries suffered by the Applicant as a result of the industrial accident in question.

27.According to the unchallenged evidence of the Applicant, he is still suffering from residual back pain which radiates down to the right lower limb and toe, the pain sometimes extends to the whole abdomen, and the situation is worse in wet weather and when weather changes. Further, the Applicant cannot lift heavy objects, say objects of more than 5 kg, cannot stand or sit for long, cannot walk for long-distance, cannot walk fast and cannot run. And the Applicant still suffers from depression and harbours suicidal thoughts. According to the evidence of the Applicant which is unchallenged, since about July 1999 after his sick leave expired, the Applicant attempted to resume employment. He could no longer work as a container truck driver which required long hours of driving and climbing actions. He decided to resume work as a taxi driver. However, he could not stand prolonged sitting in the driver's seat and had to take rest from time to time. Moreover he could not manage to work every day partly due to his physical incapacity and partly due to the fact that he had to attend follow-up treatment regularly. On average he could earn about $8,000 per month as a taxi driver. In fact he ceased working as a taxi driver in June 2000 due to residual pain and admissions to hospital for accident-related treatment. But for the purpose of claiming compensation, Ms. Lee, counsel for the Applicant, was prepared to use $8,000 per month as the Applicant's residual earning capacity. She thus arrived at a loss of earning capacity of 70%.

28.Based on the above, Ms. Lee argued that there are special circumstances in the present case and the Applicant's case falls within subsection (1A). Therefore she argued that compensation should be calculated not by reference to the percentage of loss of earning capacity assessed by the Medical Board but rather in accordance with the well-known formula laid down in Hong Kong Paper Mills Ltd v Chan Hin-wu [1981] HKLR 556 which calculates compensation by reference to the real loss in earning capacity of an injured workman by comparing his pre-accident and post-accident earning capacities. Ms. Lee came up with a figure of $1,209,600, basing on a pre-accident income or earning capacity of $27,019.88 and a post-accident income or earning capacity of $8,000 per month, or in other words a loss of earning capacity of 70% (instead of 27% as assessed by the Assessment Board). Mr. Chung, counsel for the Respondent, did not dispute the formula, the figures and percentage, the calculations or the applicability of the formula to a case falling within section 9(1A). But he argued that there was simply no or no sufficient evidence, in particular expert medical evidence, to support the Applicant's claim that his case falls within section 9(1A).

29.I do not understand Mr. Chung as saying that the various government doctors whose reports are before me or the doctors manning the Assessment Board lacked the necessary medical expertise in relation to examining, treating or assessing the condition of the Applicant, writing the reports or giving the Certificates. If Mr. Chung had in mind a medical report from a specialist in private practice specifically commissioned by the Applicant for the purpose of this claim for compensation, I do not agree that such a report must be obtained and relied on in every case. In my view, there is indeed sufficient medical evidence before me. Further, I accept the unchallenged evidence of the Applicant relating to his present condition and his post-accident employment situation and difficulties. Having considered all the evidence including the Certificates and government medical reports before me, I am satisfied that the Applicant's case does fall within section 9(1A). Plainly the Applicant has sustained a serious back injury, which more likely than not must have a significant effect on any attempt on his part to resume his previous work as a long-distance cross-border container truck driver which requires long hours of sitting, long working hours and some climbing actions. I also bear in mind the age of the Applicant, his education level, his previous working experience, and his pre-accident working experience as a container truck driver and level of income. I find it reasonable for the Applicant to switch back to his previous job as a taxi driver which suits better his present back condition, and I find the claimed income as a taxi driver of $8,000 per month as reasonable and representative of his post-accident earning capacity in view of his back condition and personal background.

30.So in conclusion I am satisfied that the Applicant's case falls within section 9(1A) of the Ordinance, that his loss of earning capacity as a result of the accident is 70% and that compensation should be awarded accordingly. As I mentioned above, the parties through counsel agreed that in that event compensation should be in the sum of $1,209,600. This is the sum I assess and award to the Applicant as compensation for his permanent partial incapacity under section 9 of the Ordinance.

31.Furthermore, the parties are in agreement that compensation for temporary incapacity under section 10 of the Ordinance is payable to the Applicant in accordance with an agreed formula, namely, $27,019.88 x 4/5 x 13.37 months, producing a sum of $289,004.64¹, and medical expenses in the sum of $10,007 are also payable to the Applicant.

Conclusion

32.In conclusion, I order that compensation in the total sum of $1,508,611.64 be paid by the Respondent to the Applicant. By agreement of the parties, I also award interest at half the judgment rate from the date of accident to the date of judgment and thereafter at the judgment rate until full payment.

33.Costs should follow the event. I make an order nisi that the Respondent pay the Applicant his costs of these proceedings to be taxed if not agreed, and that the Applicant's own costs be taxed in accordance with the Legal Aid Regulations. I also grant a certificate for counsel. Unless any party applies to vary the order nisi within 14 days from the date hereof, the same will become an absolute order upon the expiry of the 14-day period.

Representation:

Ms. Christina Lee, instructed by Messrs. Liu, Chan & Lam, for the Applicant.

Mr. Gary Chung, instructed by Messrs. Belinda Ip & Co., for the Respondent.

1 The Appellant's side erroneously calculated the amount as "$361,165.73", an arithmetical mistake which the Respondent's side did not spot when it agreed to the Appellant's claim under section 10.