Nawaz, Malik Shah v. Bridgestone Aircarft Tire Co (Asia) Ltd

DCEC 555 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION NO. 555 OF 2006

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BETWEEN

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Coram : His Honour Judge Thomas Au in Court (open to public) 

Date of Hearing : 27, 28, 29 & 30 August & 7 September 2007

Date of Handing Down Judgment : 6 November 2007

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JUDGMENT

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1.The Plaintiff (“Mr Nawaz”) found himself at pain mainly over his low back just after midnight on 17 August 2005 while he was at the Defendant’s workshop in Tai Po serving his night shift.  Mr Nawaz was at the material times an employee of the Defendant (“Bridgestone”) to rebuild aircraft tires.

2.Mr Nawaz was subsequently awarded employees compensation by the compensation board.  Both he and Bridgestone by way of the present application respectively appeal against the award.  Mr Nawaz appeals against the figure for loss of earning capacity in the certificate of review of assessment dated 1 February 2007 (Form 9), saying that the assessment is too low.

3.Bridgestone appeals both Form 9 and the certificate of assessment dated 19 October 2006 (“Form 7”) saying that there should be no compensation at all.

4.Although not disputing that Mr Nawaz did suffer some form of neck and low back pain, Bridgestone principally contends that Mr Nawaz did not in fact work on any tires that evening.  He returned to work already complaining about back pain, and he was taking a rest after given a painkiller by his colleague. The pain got worse which eventually led to his being sent to the emergency unit of the hospital in Tai Po.  As such, his back pain was not caused by any injury at all or in any event not in the course of his employment.  He is therefore not entitled to any compensation under the Employees Compensation Ordinance (Cap 282) (“the Ordinance”). See:  section 5(1) of the Ordinance, LKK Trans Ltd v Wong Hoi Chung [2006] 1 HKLRD 980 at 987G-I; Ng Mung Khian for herself and the dependants of Chow Shek Fung, deceased v Wing Kwong Printing Co Ltd (unrep., CACV 217.2004, 29 June 2005, Woo VP, Yeung and Yuen JJA) at paras 15-17, 28-31; Charles R Davidson & Co v M’Robb  [1918] AC 304 at 321.

5.In rebuttal, Mr Nawaz says he was not in pain when he returned to work that evening.  He had in fact worked and built seven tires.  He injured his neck and back when he was building the eighth tire.  He strained his back by pulling down the backing sheet of tire fabric which was being attached to the tire.

6.In light of the contentions, I am asked to determine at the trial:

(1)	Whether Mr Nawaz worked on any tires on the night shift of 16 August 2005.
(2)	If so, whether Mr Nawaz injured his back while working on the tires.
(3)	If, so whether the compensation awarded to him by the compensation board should be set aside and replaced by my own assessment.
(4)	If so, what is the proper quantum for compensation.

Did Mr Nawaz work on any tires during his night shift on 16 August 2005

7.The following are not in controversy.

8.Bridgestone rebuilds used aircraft tires to make them reusable.  These tires vary in sizes; some are very big with the diameter extending to almost the height of a normal size adult. 

9.In rebuilding the tires, a number of procedures are involved.  One of these is known as fabric building.  This is effectively attaching onto the tire surface new tire fabrics by a worker, which is done at a fabric-building machine. 

10.The fabric building worker has to first hook the tire (which has gone through previous rebuilding procedures) from an overhanging conveyance belt to a roller of the machine.  He would then attach sequentially two layers of different fabrics onto the tire surface from two respective rolls of fabrics also hooked on the machine at different rollers.  The fabric is like an adhesive tape with a backing sheet attached to its adhesive surface, presumably to preserve the adhesive material.  

11.In carrying out the fabric building procedure, the worker has to first pull off a small portion of the backing sheet from the fabric.  He then attaches that part of the fabric to the tire surface.  After this, he rotates the tire by pressing a pedal of the machine so as to “roll on” the remainder surface of the tire with the new fabrics.  Of course, while he is rolling on the fabric, he has to at the same time pull off the rest of the backing sheet from the fabric to enable it to stick to the tire surface.

12.It takes about 15 to 20 minutes to build one tire, depending on its size.

13.The third procedure after building is known as curing, which is effectively putting the tires so far built into a big oven to “cook” it, so as to make the fabric (by now treaded) firmly fixed onto the tire.  It usually takes over an hour to cure a tire, the actual length of time again depends on its size.

14.The workers at Bridgestone’s workshop work on a rotation of three shifts.  The morning shift is from 7am to 4 pm.  The middle shift from 2 pm to 11pm and the nightshift from 10 pm to 7 pm.

15.The workers have to clock in and clock out with their respective work card at the clock register situated outside the wall of the factory’s office, where the superintendent and managers work.

16.Mr Nawaz was at the time of the alleged injury a worker working at the fabric building section.  He was at his night shift.  He was also on night shift the day before.

The Plaintiff’s evidence

17.Mr Nawaz himself and his younger brother (“Mr R Nawaz”) gave evidence at trial.  Mr R Nawaz at the material time worked at the quality control department of Bridgestone.  Their evidence in summary is as follows.

18.When finishing his night shift in the early morning at around 7 am the day before the injury, Mr Nawaz was told by his supervisor that he had to work some overtime in the afternoon before he started his night shift that day (that is the night when the alleged injury occurred).  He then went back home to sleep.  Later when he woke up around the middle of the day, he found out that his supervisor had been trying to reach him through his mobile phone (as he noticed the missed call signals).  He did not pick up the calls earlier as he was sleeping. 

19.When he returned to work for the overtime in the afternoon, he was told by Mr Cheung Wing On (a superintendent of Bridgestone) that he was no longer required to work overtime that afternoon.  He was unhappy about this late change.  He discussed the matter and expressed his dissatisfaction with Mr Cheung and the production manager, one Mr Lam.  After the discussions, he left the factory.

20.He then returned to work for his night shift just before 10 pm on 16 August 2005.  He was fine physically on his return, he did not feel any neck or back pain or any discomfort, nor did he ask for any painkiller.  He started to work in building the tires at one of the three fabric-building machines. 

21.Soon after midnight on 17 August 2005, while he was pulling the backing paper of the fabric for building a large tire, he felt a sudden pain over his low back and became weak.  He could not continue with the work, and he fell on the floor with his knees to his left.  He then slowly got himself up and sat on the floor on one side of the machine. He also felt some neck pain but that was not serious.

22.Mr Chow found Mr Nawaz sitting on the floor with pain. Mr Chow then informed the other co-workers one Mr Kwok Wai Kit and Mr Hui Chung Yiu about Mr Nawaz’s condition.  They came to see him.  Mr Hui later gave him a painkiller.  They eventually called for the ambulance.

23.The ambulance arrived shortly thereafter, as the hospital was nearby.  After briefly looked at by the paramedics, he was eventually taken to the Alice Ho Mui Ling Nethersole hospital, which was only about 5 to15 minutes’ drive away.

24.At trial, Mr Nawaz also relies on copies of six job tags (i.e., work record cards) to show that he had in fact built six tires during his night shift between 15 and 16 August 2005.  These job tags show that he was the person (with worker number 515) who built the tires as marked on each of these tags.  Mr Nawaz says there should indeed be seven cards, since he had built seven, but he could only obtain copies of these six cards.  Each of the job tags relates to one tire.

25.These job tags are kept by Bridgestone.  However, copies of these job tags were made and taken out by Mr R Nawaz when he happened to see them at work.  Mr Nawaz disclosed them only on the first day of trial.

26.Despite some initial suggestions made to the contrary, Mr Wong, Counsel for the Defendant, in his closing submissions accepts that four out of the six job tags show on their face that tires were built by Mr Nawaz on the night shift of 16 August 2005.  He however maintains that the other two show that they could only be made in the afternoon of 16 August 2005.

Bridgestone’s evidence

27.Bridgestone has called Mr Cheung, Mr Hui, Mr Chow and Mr Kwok to give evidence at trial.   At the time of the injury, Mr Chow and Mr Kwok were both a production operator, while Mr Cheung was a superintendent.  Mr Hui was a group leader of the production department.

28.The gist of their evidence on this issue is this.

29.At around 6:45 am on 16 August 2005, at a distance Mr Cheung saw Mr Nawaz entering into the factory coming from the street.  In his view, Mr Nawaz had gone out of the factory during his night shift and was only returning to clock himself out.

30.As he could not get hold of him before Mr Nawaz left the factory after clocking out at 7 am, he tried to call Mr Nawaz over his mobile phone.  He eventually found Mr Nawaz and questioned Mr Nawaz why he had left work while on duty.

31.At about 4 pm, Mr Nawaz went back to the factory and argued with Mr Cheung.  Mr Cheung warned Mr Nawaz that if Mr Nawaz was found to be leaving work on duty again, he would inform the production manager to terminate Mr Nawaz’s employment.  The two of them eventually discussed the matter with the production manager, and Mr Nawaz left at around 5:30 pm.

32.When Mr Nawaz returned to work at around 9:50 pm that night, Mr Chow met him near the toilet.  Mr Nawaz looked unwell.  When asked, he told Mr Chow that he was not feeling well. 

33.At about 10:15pm, Mr Kwok also saw Mr Nawaz, who told Mr Kwok that he was not feeling well and asked for a painkiller.  Mr Kwok looked and gave Mr Nawaz a painkiller.  Mr Nawaz sat on a rim near a production machine to take a rest after taking the painkiller.

34.At about 10:45pm to 11:00 pm, Mr Chow walked past Mr Nawaz seeing him sitting on the floor next to a building machine, apparently in pain.  Mr Chow then informed Mr Kwok and Mr Hui about what he saw, and then went back to work.

35.Mr Kwok and Mr Hui went to see Mr Nawaz.  Mr Hui asked Mr Nawaz what happened, and whether he had suffered any contusion or slip, or any injury caused by the machine.  Mr Nawaz said no.  

36.Mr Hui asked Mr Nawaz to rest a while to see if he would get any better. When he did not and could not get up, Mr Hui called for the ambulance.  When it came, the ambulance attendant asked Mr Nawaz what happened and whether he had a fall or a contusion injury.  Mr Nawaz again answered no.

37.Mr Nawaz was eventually taken to the hospital by the ambulance.  Mr Hui accompanied him.  About 4 to 5 days later, Mr  Cheung was told by Mr R Nawaz that his brother injured his neck when having boxing a few days before 16 August 2005.

Discussion and finding

38.After assessing the evidence, I prefer Mr Nawaz’s evidence to that of Bridgestone’s.   I find Mr Nawaz’s case and evidence that he worked during his night shift more credible because:

(1)	This is supported by the documentary evidence of the job tags.  As finally accepted by Mr Wong for Bridgestone, at least four tires were built by Mr Nawaz during his night shift. This is a stark contrast to Bridgestone’s initial case (before the job tags were produced as evidence) that Mr Nawaz had never worked on any tires during his night shift when he claimed he was injured.
(2)	For the same reason, the above documentary evidence flatly contradicts Bridgestone’s case and evidence that Mr Nawaz did not work on any tires during the night shift.
(3)	Although it is Bridgestone which has raised the central issue as to whether Mr Nawaz worked on the tires on his night shift, these job tags have not be disclosed by them although they are supposed to be within its exclusive possession. Since these job tags show to the contrary, I therefore have great doubt on Bridgestone’s case and generally on the evidence of its witnesses seeking to show that Mr Nawaz did not work on any tires at all that night.

39.Bridgestone however challenges Mr Nawaz’s credibility on the basis that two out of the six job tags show that the curing procedure was carried out on the two tires between 4:30pm and 6pm on 16 August 2005.  If this is correct, then Mr Nawaz could only have worked on these two tires sometime before 4:30 pm as the building work was a procedure carried out before curing.  As such, his case that he had built seven or eight tires before the injury could not have been right.

40.Mr Nawaz and Mr R Nawaz explained the discrepancy by saying that there must have been an error made for the time printed on the job tag for the curing procedure.   Someone must have entered the wrong time on the clock of the curing machine in mistaking a 24-hour format with a 12-hour format.  Thus, the 4 pm printed thereon should have been 4 am (on 17 August) instead.

41.I accept the evidence of the Nawaz’ brothers.  My reasons are as follows:

(1)	It is common evidence between the parties that whenever a different size tire is put into the commenting machine and a different mould is needed to be replaced, the worker has to re-set the clock in the machine.  As such, it is inherently plausible that human error in entering the wrong time such as the one suggested by Mr Nawaz might have occurred.
(2)	Further, these two job tags show that Mr Chow carried out the curing procedure.  However, he also only worked on the night shift on16 August 2005 but not the middle shift. As such, he could not have cured these tires in the late afternoon of 16 August 2005 as shown.  This strongly supports Mr Nawaz’s case that there is an error of the time printed on these two job tags.
(3)	For this purpose, I reject Mr Chow’s evidence as being inherently incredible that he had only filled in the time data for these two tires, which were in fact cured by other staff at an earlier shift, when he happened to find these tires idling in the section when he returned work but with the information unfilled.  It is incredible in that if he could find out the time of the curing of these tires based on records, he somehow could not have found out and filled in the correct worker’s number for curing the tires but had to put in his own number.
(4)	Moreover, if Bridgestone’s case on these two job tags is correct, that would have meant that Mr Nawaz had somehow returned to the factory before his night shift on 16 August 2005 to work on these two tires (which apparently have been built sometime before 4:30 pm on 16 August 2005).  Bridgestone says this is probable because Mr Nawaz wanted to have some “spare time” during his night shift so that he could take a rest.
(5)	However, I find it against common sense that, as suggested, Mr Nawaz would have somehow preferred to work on two (or more) tires before his shift started, so that he could “steal” some time to take a rest during his night shift.  If he had done this, it would have meant that he had to spend time to travel back to the office, work on a few tires, travel back to home, and then travel back to the factory again to commence his night shift in order to “steal” say 30 minutes to 1 hour’s rest.  Not only is this suggested method of “stealing rest time” convoluted, it is also illogical as the travelling time together with the actual work time incurred by Mr Nawaz is likely to have exceeded the rest time that he could have “gained” by doing this.

42.I therefore accept Mr Nawaz’s evidence that there is a mistake on the time shown on these two job tags.  They should have been 4:30 am (on 17 August 2005) instead of 4:30 pm.  As such, these two job tags are also supportive of Mr Nawaz’s case that he had worked on these two tires during the night shift on 16 August 2005.

43.For the same reasons above, I would reject the evidence of Mr Chow and Mr Kwok insofar as they are saying that Mr Nawaz did not work at all on the that night shift.   Their evidence is contrary to and contradicted by the objective contemporaneous documents.

44.Mr Wong for Bridgestone submits that as they are both good friends of Mr Nawaz, there is no motive and reason for them not to tell the truth.  I do not accept Mr Wong’s submissions:

(1)	First, in light of the job tags (in particular the four unchallenged ones), Mr Wong in his oral closing submissions revised Bridgestone’s position that Mr Nawaz might have worked on some tires during the nightshift. This itself discredits the evidence of Bridgestone’s witnesses to the effect that Mr Nawaz did not work on any tires that night.
(2)	Secondly, both witnesses say they did not see or watch Mr Nawaz throughout the time from when he returned to work to the time they found him sitting on the floor.   In the premises, their evidence that Mr Nawaz could not have worked at all during the night shift cannot be taken too high.
(3)	Furthermore, memories could be unreliable for many reasons, and witnesses may have believed what they have or have not seen which is in fact incorrect.  Witnesses may say things which do not entirely correlate with what he remembers for reasons unknown or not apparent to the Court.  As such, submissions that a witness should be believed merely because there is no apparent reason why he should lie cannot be taken too far or too high.
(4)	For these reasons and given the objective evidence and the inherent probability of the matters as set out above, I do not find Mr Chow and Mr Kwok’s evidence on this issue reliable.

45.For the above reasons, I find as a matter of fact that Mr Nawaz worked on six to seven tires during his night shift on 16 August 2005.

Did Mr Nawaz injure himself while working during his night shift

46.Other than Mr Nawaz himself, no one witnessed how the injury, if there is one, occurred.

47.Mr Nawaz says he sprained his low back while trying to pull the backing sheet off from the fabric he was applying to the tire.  He says as the backing sheeting he was working on at that time was the most tightly adhered type, he needed to use a lot more force to pull it off.  Coupled with the protruding bar of the machine which forced him to adopt a stooping and bent back position to work, he sustained the sprain.  The time of the injury is just after midnight.

48.I accept Mr Nawaz’s evidence because:

(1)	Bridgestone’s video showing the working mechanics of a building machine is not inconsistent with Mr Nawaz’s description of how he was required to work on the fabrics.
(2)	Given with the unchallenged evidence that the distance between the hospital and the factory is about 5 to 15 minutes’ drive, the recorded time of the ambulance arriving at the hospital at about 1:00 am is more consistent with Mr Nawaz’s case that he was injured soon after midnight than Bridgestone’s case that he was already seen sitting on the floor complaining about pain at around 11:00 am.   It is pertinent to note that, when pressed, Mr Chow says he could not remember clearly when he saw Mr Nawaz sitting on the floor with pain and he might have made a mistake in the first place.
(3)	The fact that he was found sitting on the floor next to a building machine is also consistent with the fact that he was working there before he felt the pain.
(4)	It is common ground that the inner is the fabrics within a roll, the tighter is the backing sheet adhered to it, and the greater the force is required to peel it off from the fabrics. There is also nothing to challenge Mr Nawaz’s evidence that he was working on the innermost type of fabric when he says he was injured. As such, Mr Nawaz’s case is inherently credible.

49.Mr Wong for Bridgestone submits that Mr Nawaz’s case is however incredible because it is inconsistent with the contemporaneous records and unchallenged evidence:

(1)	When specifically asked whether he had any contusion, slip or any injury caused by the machine, Mr Nawaz replied “no”.
(2)	He did not inform the ambulance attendants and attending medical doctor at the hospital’s A&E department (as recorded in the records) that he was injured while pulling off the backing sheet of fabric.
(3)	The subsequent medical records also did not record Mr Nawaz having injured himself when pulling off the backing sheet from the fabric.

50.I do not agree with Mr Wong’s submissions for the following reasons:

(1)

Even if Mr Nawaz had said “no” to Mr Hui’s inquiry, it does not mean he had not injured himself by pulling off the backing sheet.  Mr Nawaz was not injured by the machine, nor was his injury caused by any contusion or slip.  There is thus nothing inconsistent between his answer and the fact that he hurt himself by pulling off the backing sheet.

(2)

Further, I also accept Mr Nawaz’s explanation that he in fact had explained to the doctors how he got injured but he could not control what the doctors have written down.  It is not incredible that, given the heavy workloads of the attending doctors at government hospitals, they might not have recorded in details as to how Mr Nawaz got injured.  To this extent, it is important however to note that he had consistently informed the doctors (as recorded in the various medical reports) that he was injured while on duty or at work.

51.Insofar as necessary, I also reject Mr Cheung’s evidence that Mr R Nawaz had told him Mr Nawaz injured his neck a few days before the alleged injury while having boxing[1].  I find Mr Cheung not a reliable witness:

(1)	In order to beef up Bridgestone’s case, he is prepared to give evidence which defies common senses or is obviously unlikely.
(2)	For example, I asked him if he had in fact seen Mr Nawaz coming back to the factory from the street to clock out in early morning of 16 August 2005, why he did not talk to Mr Nawaz right there and then, but waited to call him much later as a result of which, Mr Nawaz had to go back to the office in the afternoon to discuss with him about the same.   Mr Cheung’s answer is that Mr Nawaz was somehow too quick for him to get hold of at that moment.
(3)	When I further asked why he did not then immediately call Mr Nawaz through his mobile phone to talk to him, he initially said he did not have Mr Nawaz’s number, but when pressed, he changed the evidence and said he had in fact called Mr Nawaz a few times, but could not get in touch with him until 11 am.
(4)	I find these answers lacking in logics and common sense.  To me it is highly unlikely that Mr Cheung would not have been able to get hold of Mr Nawaz if he had in fact seen him re-entering into the factory to clock out.  It must be remembered that the clocking machine is situated right outside Mr Cheung’s office.  These answers (coupled with the manner Mr Cheung gave them) also give me the impression that they are only thought out as and when Mr Cheung is pressed hard with the questions.

52.I also reject Mr Hui, Mr Chow and Mr Kwok’s evidence insofar as they are to show that Mr Nawaz was already in pain when he returned to work and he was given a painkiller before he was found sitting on the floor with pain.  I reject this evidence as it is inconsistent with the objective evidence as set out above.  I also find these witnesses unreliable as when they were pressed under cross-examination, they tended to evade the questions first, and then eventually resorted to answers such as they could not clearly remember what had happened.

53.For the above reasons, on balance, I find that Mr Nawaz sprained his neck and low back at work while he was pulling off the backing sheet of the fabric that was being built on a tire.

Proper quantum for compensation

54.By way of Form 7, the compensation board described Mr Nawaz’s injury as “Pain and stiffness over back and neck” and assessed his permanent loss of earning capacity at 4%.  It also confirmed the sick leave period from 17 August 2005 to 8 September 2006.  On review, by way of Form 9, the board revised the permanent loss of earning capacity from 4% to 6% and extended the sick leave period to 20 October 2006 (as he was by then granted more sick leave by the attending medical doctors).

55.Mr Nawaz says the assessment of loss of earning capacity should be 10% instead of 6%.  His case is supported by the medical report of Dr Johnson Lam, who also endorses the sick leave period granted to Mr Nawaz.

56.Bridgestone’s medical reported prepared by Dr Daniel Yip does not provide a percentage assessment of the loss of earning capacity.  However it is Dr Yip’s opinion that (a) Mr Nawaz’s back pain is of a minor nature, and is unlikely to have been caused by the alleged injury, which in his view (after reviewing the other medical records and the video of the working mechanics of the building machine) did not actually occur in any event, and (b) Mr Nawaz “uncomplicated exacerbation of back pain” does not cause the level of permanent disability described by him.

Section 9 compensation for permanent partial incapacity

57.Both parties appeal against Form 9’s assessment (although Bridgestone formally appeals against Form 7, but given the revision, it would be effectively also appealing against Form 9).  The burden rests respectively on them to show that certificate was issued in ignorance of or under a mistake as to the true nature or extent of his injury (see: section 16B of the Ordinance).

58.Having gone through all the government medical and physiotherapy reports placed before the Court, and having seen Mr Nawaz giving long spell of evidence in Court without having any significant physical discomfort, notwithstanding the medical report of Dr Lam, Mr Nawaz has failed to satisfy me that the revised assessment of the compensation board is made under a mistake as to or in ignorance of the true extent or nature of Mr Nawaz’s injury. 

59.At the same time, I also reject Dr Yip’s report on his assessment of Mr Nawaz’s injury.  Dr Yip in his report has even gone to the extent of giving an opinion that the injury did not in fact occur. This is something beyond the scope of his expertise and the function of a medical expert.  It is trite that the true function of medical experts is to provide independent, unbiased and impartial opinion on matters within his specific area of medical expertise.  Medical experts should not assume the role of an advocate for the party from whom they receive instructions:  Ansar Mohammad v. Global Legend Transportation Ltd (unrep., DCEC 1090/2006, H H Judge M Ng, 8 May 2007) at paras 36-38, citing and adopting Ikarian Reefer [1993] 2 Lloyd’s Rep 68.  I do not therefore find Dr Yip’s report reliable and I reject it.

60.For the above reasons, I am not satisfied by either of the parties that I should replace the 6% assessment in Form 9 on Mr Nawaz’s permanent loss of earning capacity.   I find the assessment appropriate.

61.Given that Mr Wong for Bridgestone agrees that a multiplier of 96 is applicable as suggested by Mr Wright for Mr Nawaz, and there being no dispute on Mr Nawaz’s relevant monthly salary, I therefore award him HK$66,690.00  (96 x HK$11,578.12 x 6%) as compensation under s. 9 of the Ordinance.

Section 10 compensation

62.There is no dispute that, as stated in Form 9, the total period of sick leave granted to Mr Nawaz is 388 days (from 17 August 2005 to 20 October 2006).  Given I have rejected Dr Yip’s report, there is nothing that could properly challenge the appropriateness of this sick leave period.  I therefore will not set aside the certification in Form 9 and replace it with another period.

63.As Mr Nawaz accepts that he has already been paid HK$21,852.00 by Bridgestone for part of his sick leave period, the compensation payable under this head should thus be HK$96,301.92 [(HK$11,578.12 x 12)/365 x 388 x 4/5 – HK$21,852.00]].

Section 10A medical expenses

64.The parties have agreed that the sum awardable under this head is HK$4,086.00.  I so award.

Conclusion

65.For the reason I set out above, I award Mr Nawaz compensation under the Ordinance (a) HK$66,690.00 under section 9, (b) HK$96,301.92 under section 10, and (c) HK$4,086.00 under section 10A.  Mr Nawaz is further entitled to interest on these sums at half judgment rate from the date of injury to the date of judgment, and thereafter at judgment rate until full payment.

66.Insofar as necessary, I also give extension of time for Mr Nawaz under section 10(5) of the Ordinance to receive the periodical payment.

Costs

67.Although both parties fail in their appeals against Form 9, the central and crucial contentions between them at trial are whether Mr Nawaz in fact worked on the night of the injury and suffered the injury as he described it.  Most if not all of the evidence and time of the trial has been spent on these issues, which  I have found in favour of Mr Nawaz.

68.In the circumstances, I make an order nisi that 80% of the costs of the application be to Mr Nawaz to be taxed if not agreed, with certificate for counsel.  Mr Nawaz’s own costs be taxed in accordance with legal aid scale.   This order will be made absolute 14 days from the date of the judgment if neither party applies to vary it.

Mr. John Wright instructed by Messrs John M. Pickavant & Co. for Applicant.

Mr. Wong, Chi-Kwong instructed by Messrs Waller Ma Huang & Yeung for Respondent.