Chu Yee Man v. Chuen Kee Construction Co Ltd and Another

DCEC1058/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1058 OF 2005

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BETWEEN

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Coram:   Deputy District Judge Frederick HF Chan (in Court)

Dates of hearing:  20^th and 21^st October 2008

Date of handing down reasons for judgment:   23^rd October 2008

JUDGMENT

The prelude

1.In our Court of Appeal decision of Lau Suet Fung v. Future Engineering Co., CACV110/2003, unreported, 6^th February 2004, Madam Justice Yuen JA. observed[1] wisely on the Employment Compensation Ordinance (Cap. 282) (“ECO”) that:

“32.           Regrettably, the ECO, which had its origin in English statutes drafted nearly a century ago but which has since incorporated both English and local amendments, is by no means easy to follow. This is particularly regrettable when the purpose of the legislation is to provide for payment of compensation to injured employees, a class covering a wide spectrum of the community with various educational backgrounds. Their interests would be better served by a statute which is more “layman-friendly”. The difficulties posed by the intricacies of the statute to an employee who is not legally represented are illustrated in the present case”.

The Accident

2.A brief narrative of the essential background to the present case appears thus. On 14^th October 2003 at about 4:00 p.m., the Applicant (Mr. Chu Yee Man)[2] was working as a carpenter at a construction site located at Block 4, Phase No. 4, Lai Muk Shue Estate, Kwai Chung, New Territories, Hong Kong (“the Construction Site”) when he met an industrial accident (“the Accident”). When he was paving wooden boards, some iron pipes which were being carried by a crane hit him and caused him to fall from the 10^th floor to the 9^th floor. He was injured and sent to the Prince of Wales Hospital (“the Hospital”).

3.He arrived at the Hospital at about 4:47 p.m. and was examined by Dr. Wong Lim Chiu (“Dr. Wong”) of the Hospital’s Accident and Emergency Department. According to Dr. Wong’s medical report dated 17^th January 2005, on the date of the Accident, the medical findings were:

“1) There was tenderness over the left buttock and abrasion over the left little finger.

2)   X-ray of the pelvis showed no fracture”.

4.The Applicant was treated, discharged and given 4 days of sick leave. In respect of the Accident, the Applicant contends that the 1^st Respondent was his immediate employer and the 2^nd Respondent was the principal contractor of the 1^st Respondent. The Applicant returned to work on 18^th October 2003 and continued to work until 3^rd November 2003.

5.On 4^th November 2003 at about 1:57 p.m., the Applicant attended the Accident & Emergency Department of the Hospital and was examined by Dr. Chan Chung Yung (“Dr. Chan”). He was treated, discharged and given 4 days’ sick leave. According to Dr. Chan’s medical report dated 21^st January 2005:

“The medical findings were …

1)      Patient complaint [sic.] about left hip pain for ½ month since on duty at the time.

2)      The pain was increased by movement.

3)      Physical examination was unremarkable.

The mode of injury … could not be determined”.

6.On 10^th November 2003, the 2^nd Respondent filed a Form 2 with the Labour Department and confirmed that on 4^th November 2003, the Accident happened to the Applicant and he was, at the material time, the employee of the 1^st Respondent (who, inturn, was the sub-contractor of the 2^nd Respondent). The Form 2 confirmed that the monthly salary of the Applicant was in the sum of HK$17,600.

7.On 8^th September 2004, the 2^nd Respondent filed a Notice of Change In Information[3] with the Labour Department and varied the date of occurrence of the Accident to 14^th October 2003 (to wit, the Date of Accident).

8.On 5^th September 2005, Messrs. K. Y. Woo (solicitors) issued an application on the Applicant’s behalf to seek employees’ compensation under sections 9, 10 and 10A ECO (“the Application”).

9.The 1^st and 2^nd Respondents filed an answer (“the Answer”) whereby:

(a)    They admitted that the Accident had happened[4];

(b)   They denied that the Accident occurred when the Applicant was in the course of the 1^st Respondent’s employment;

(c)    The quantum was also disputed.

10.On 24^th September 2007, the Application was amended (“the Amended Application”) with Messrs. K. Y. Woo formally coming off the record as the Applicant’s solicitors and they were replaced by Messrs. K. B. Chau & Co. (on instructions of the Director of Legal Aid).

11.On 24^th December 2007, the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) issued a certificate of Assessment (“the Board’s Certificate”) where it was stated:

(a)  The injury of the Applicant was “back injury resulting in pain and stiffness”;

(b)The loss of earning capacity permanently caused by the injury was 3%;

(c)  The sick leave period should be from the date of the Accident to 13^th October 2006 (or 36 months).

12.The Respondents did not appeal against the Board’s Certificate.  In terms of computation, the bulk of the employees’ compensation payable to the Applicant under the Board’s Certificate would be:

(a)    Under section 9 ECO[5]:  HK$38,016

(b)   Under section 10 ECO[6]:  HK$506,880.

13.On 9^th July 2008, the Board issued a Certificate of Review of Assessment which cancelled the Board’s Certificate (“the Board’s Review Certificate”).  The Board’s Review Certificate stated:

(a)    The injury was “back injury resulting in pain and stiffness”;

(b)   The sick leave period should be from the date of the Accident to 13^th October 2006 (36 months).

14.Under the Board’s Review Certificate and if it is not varied by the Court under section 18 ECO, the employees’ compensation for section 10 ECO payable to the Applicant would be HK$506,880[7].

15.This figure of HK$506,880 formed the new bone of contention and on 23^rd July 2008, the 1^st and 2^nd Respondents swiftly lodged a notice of appeal under section 18 ECO to challenge the extended sick leave period prescribed by the Board’s Review Certificate (“the Appeal”).

16.The 1^st and 2^nd Respondents sought to rely on the opinions of Dr. Lau Hoi Kuen (“Dr. Lau”)[8] who concluded in his medical reports that:

• In respect of the Accident, the Applicant should have only suffered contusion injury to his left buttock and lower back in the Accident;
• In his report dated 5^th September 2006, Dr. Lau concluded that the Applicant’s loss of earning capacity under ECO should be 2%;

• The appropriate sick leave period should end on 30^th August 2004 or about 10½ months after the Date of Accident;
• In his medical reported dated 21^st May 2008, Dr. Lau categorically concluded that the Applicant has greatly exaggerated his complaints of pain and that:

“18.   After reviewing the hospital and outpatient records, as well as the investigative findings, the diagnosis as related to the injury of 2003 would still be soft tissue injury of the left buttock and low back”.

17.Pausing here, I interpolate with the following observations:

(a)    Mr. Wong for the Respondents accepted that, as a matter of law in the HKSAR, as H. H. Judge Muttrie had succinctly said in Chau Muk Chi v. Chinagold Transportation Limited, DCEC506/2002, unreported, 1^st April 2003 at pp. 9-10:

“22.   In Tang Shau Tsan v. Wealthy Construction Company Limited, unreported CACV58/2000, Rogers JA, as he then was, expressed the following view on expert witness and in particular on their opinion as to earning capacity:

An expert can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.

23.       This in my view applies in employees’ compensation cases no less that in personal injury cases”;

(b)   Therefore, the Court must decide the permanent partial incapacity suffered by the Applicant resulted from the Accident by applying the provisions of section 9 ECO;

(c)    Dr. Lau’s quantification of 2% (in 2006) on the permanent partial incapacity of the Applicant is inadmissible evidence at this trial of the Application and the determination of the Appeal;

(d)   In the present case, the Respondents accepted that there were sick leave certificates granted to the Applicant by the various doctors of the Hospital for the almost full 3-year period after the Date of Accident (“the Sick-leave Certificates);

(e)    According to the Board’s Review Certificate, no sick leave was granted to the Applicant for the following days i.e. from 18^th to 25^th October, 3^rd November, 8^th November and 20^th November 2003. In total, 10 full days were not covered by the Sick-leave Certificates;

(f)     The latest sick leave certificate was granted by Dr. Kwok Kin On (a Medical Officer of the Hospital) for the period from 9^th October 2006 to 1^st March 2007 in respect of the Applicant’s “low back pain”;

(g)    According to the Respondents’ reckoning, from the Date of Accident, the sick leave period accumulated to a total of 1,085 days.

18.Resuming the narrative, on 11^th July 2008, the legal aid was discharged and the Applicant has since been acting in person. The present case (including the Application and the Appeal) was due to be tried before Her Honor Judge HC Wong on 13^th October 2008 and was adjourned to 20^th October 2008 for trial before me on liability and quantum of the employees’ compensation.

Respondents’ stance

19.At the hearing before me on 20^th October 2008, the Respondents belatedly changed their tack and unequivocally conceded that:

(a)    In respect of the Accident, the Accident did happen on the Date of Accident as alleged by the Applicant;

(b)   The Respondents do admit their joint liabilities to pay the employees’ compensation to the Applicant for the Accident under ECO.

The quantum issues

20.However, the Respondents would seek to contest the Applicant’s case on the quantum of the employees’ compensation along the following veins:

(a)    During the one month before the Date of Accident, the monthly pay to the Applicant by the 1^st Respondent was HK$16,000, not the sum of HK$17,600 as mentioned in the Form 2 (“the Monthly Pay Issue”);

(b)   Under section 9 ECO, the permanent partial incapacity should be 2%, not 3% as stated in the Board’s Review Certificate (“the Permanent Partial Incapacity Issue”);

(c)    The appropriate sick leave should only be 10½ months from the Date of Accident, not the 3-year period stated in the Board’s Review Certificate (“the Sick-leave Period Issue”).

21.The Respondents confirmed that they would not call any factual evidence to challenge the quantum of the employees’ compensation.

22.The Applicant testified before me. He could not write and read Chinese. I troubled the court’s interpreter to read his written witness statement aloud. The Applicant adopted the contents of that witness statement dated 16^th January 2007 as part of his evidence-in-chief. He added that the exact timing of the Accident was about 4:00 p.m. and not 2:10 p.m. and that he went alone to the Hospital on a taxi.

23.In gist, he testified that as a result of the Accident:

• He had been using a stick or a long-armed umbrella to walk;
• His left leg was weakened and was painful;
• He resumed working as a carpenter for some time after the Date of Accident in the Construction Site but he could not continue working as such because of his pain in the left leg;
• On 4^th November 2003, he approached the Hospital for treatment and since then, has been on sick leave and could not return to his employment as a carpenter.

24.He was carefully cross-examined by Mr. Wong (solicitor for the Respondent). At times, Mr. Wong sought to cross-examine the Applicant with some excerpts from Dr. Lau’s medical reports. This line of questioning immediately attracted the outbursts of the Applicant that Dr. Lau’s reports did not reflect fully what had transpired between the Applicant and Dr. Lau when the two medical examinations were held in 2004 and 2006 respectively. There and then, Mr. Wong back-pedaled and did not pursue that line of cross-examination with the Applicant.

The surveillance tape

25.During trial, a surveillance tape was admitted in evidence and played in court. The surveillance tape captured the muted video footage of a clandestine operation by a private investigator to tail the Applicant in the early afternoon of 31^st August 2006. The Applicant was shown dressed in a T-shirt and blue jeans and walking in the streets with a long-armed umbrella in his hand. He boarded a double-decker bus and travelled home. On the bus-ride, he stood up for a number of times and embraced the upright seat for the wheel-chair and returned to sitting on a seat. He was briefly cross-examined on the surveillance tape.

26.I have viewed the videotape with care and after considering all of the evidence, I would hold that the credibility of the Applicant has not been damaged by the video footages. Instead, what was depicted on the videotape assisted me to reach the conclusion that the Applicant’s complaints about pains were not feigned or exaggerated. I would highlight the following observations:

(a)    The videotape was not about how the Applicant embarked on his works as a carpenter in a construction site;

(b)   The videotape showed him walking on the busy streets and taking a bus home in a leisurely way in the afternoon of 31^st August 2006 and the weather was sunny with no rain;

(c)    As Mr. Wong agreed, the videotape showed that the Applicant was walking with an evident limp in need of the umbrella as a walking aid;

(d)   At times, the Applicant stood there, with his upper body leaned forward and both of his hands holding the umbrella with his 2 legs and the umbrella forming a trestle; obviously, the Applicant required the umbrella as a fulcrum to support himself;

(e)    Whilst he was walking on the streets, the umbrella was indeed used by him;

(f)     When the Applicant was boarding onto and alighting from the bus, he leaned onto the umbrella to support himself;

(g)    With respect, I would disagree with Dr. Lau’s views that the video footage showed that Applicant was angling for employees’ compensation and he had exaggerated his symptoms;

(h)    On the contrary, I would accept the Applicant’s evidence that he was in constant pain and his left leg was weakened by the Accident and he could not return to his previous employment as a carpenter;

(i)      This videotape was also viewed by Dr. Lau and he prepared a medical report dated 7^th June 2008 where he said:

“he was able to sit in a normal posture (without the need to sit on the edge of the chair on his right buttock as was observed at the examination)”;

I disagree with this observation because, in fact, the videotape footages relating to the bus-ride did not depict the frontal or full view of how the Applicant was sitting on the seat; the edge of the seat was nowhere to be seen from the footages;

My viewing of the same videotape footage of the bus-ride did not allow me to see the manner by which the positions of the Applicant’s left and right buttocks in relation to the bus-seat; I cannot even tell whether both of his buttocks did or did not rest on the seat;

I must reject this part of Dr. Lau’s evidence as not supported by the videotape;

Dr. Lau expressed his reservation on the usefulness of the videotape footage when he said:

“(5)      [the Applicant] was not shown to be able to squat, bend his back low, lift up heavy object or work.

(6)        It would be helpful if more surveillance can be carried out on [the Applicant] to try to document his ability to perform the unrecorded activities”;

(j)     All things considered and evidentially speaking, the videotape footages did not advance the Respondents’ case at all.

27.Generally speaking, I have formed a favorable view of the Applicant’s testimonies. He gave evidence with frankness and was unshaken by the cross-examination. For example, when he was asked about the receipts of his daily wage, he said that the written record of the 1^st Respondent could have shown how much he had been paid as his income fluctuated from time to time. He agreed that his boss from the 1^st Respondent (Mr. Lee Wai Lun) had told him that his daily wage as a carpenter would be HK$800.

28.With those general remarks on the credibility of the Applicant’s evidence, I would proceed to determine the issues on quantum in turn.

Monthly Pay Issue

29.The Form 2 stated the monthly pay of the Applicant was HK$17,600. However, the Employees’ Attendance Records of the 1^st Respondent showed that:

Between 19^th and 30^th August 2003, the Applicant had worked for 7 days;

Between 1^st and 30^th September 2003, he worked for 20 days;

Between 2^nd October and the Date of Accident, he worked for 10 days;

During those periods, his daily pay was HK$800.

30.On the balance of probabilities and after taking into account all the evidence, I would hold that prior to the Accident, on a monthly basis, the Applicant had been working for an average of 20 days on a daily pay of HK$800 and his total monthly wage would be HK$16,000. This sum of HK$16,000 is the multiplicated which should be used by the Court in computing the employees’ compensation under the provisions of ECO.

The Permanent Partial Incapacity Issue

31.The personal injury caused by the Accident to the Applicant did not fall within the First Schedule to ECO. In the Court of Appeal decision of Tsang Wong Tong v. Tennille Decoration & Design Limited, CACV42/2006, Court of Appeal (Cheung, Tang JJA. and Kwan J), 10^th October 2006, Madam Justice Kwan (Cheung and Tang JJA concurring) cogently reiterated the correct approach as follows:

“39.           The correct test to apply for an appeal brought pursuant to section 18 against an assessment of the Board made under section 16D or 16G, is that stated in Chan Kit v. Sam Wo Industrial Manufactory [1989] 1 HKC 115 at118D to E, per Hunter JA:

“… the court’s jurisdiction appears to be appellate. But one has then to remember that these boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons so that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly described in order to bring about a reversal of their decision if the court is so minded, it is plain that a court approaching this matter has really got to start afresh.

…

41. The injury of the applicant found by the Board is not an injury specified in the First Schedule to Cap. 282, for which a percentage is given for loss of earning capacity due to permanent partial incapacity resulting from the injury. Section 9(1)(A) provides that where permanent partial incapacity results from an injury, whether or not an injury specified in the First Schedule, and the percentage of the loss of earning capacity assessed in relation to that injury in accordance with subsection (1) would be substantially less than the percentage of the loss of earning capacity permanently caused by the injury in the special circumstances of the employee, including, (i) the nature of the injury 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 in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time …

47. Where no reasons are given by the Board, as is usually the case, the court hearing an appeal under section 18 ought not to speculate and “can only judge an assessment by testing the validity of its conclusions against the total available evidence” (Chan Kam v. Standard Chartered Bank Trustee Ltd., supra, at 458)…” (Emphasis added).

32.Mr. Wong did not demur and I would respectfully adopt the same approach. In his submissions, Mr. Wong provided a detailed and minute analysis of the medical evidence placed before me. The leitmotiv of his speech was the 16 odd medical reports placed before me.

33.With respect to him, when dealing with the Appeal, the Court should take into account the Board’s Review Certificate and examineafresh all the evidence (oral, documentary and medical) with a view to determining the appropriate percentage of the permanent partial incapacity under section 9 ECO. Obviously, the medical evidence should be considered but it can only form part of the considerations of the Court under the provisions of section 9 ECO. Otherwise, the determinations under section 9 ECO would inevitably descend into a trial by medical experts on the strength of medical reports.

34.In the present case, I am of the view that 3% is the most appropriate figure to be given for the section 9 ECO assessment in terms of the Applicant’s permanent partial incapacity. In reaching that conclusion, I have carefully considered the facts of the present case and would underline the following aspects as worthy of particular attention:

(a)    I accept the Applicant’s evidence that as a result of the Accident, he encountered difficulties when he returned to his previous employment as a carpenter and he was less mobile;

(b)   Mr. Wong did not dispute the Work Rehabilitation Progress Report dated 16^th July 2004 prepared by Mr. Ken C. M. Wong (Occupational Therapist of the Hospital) where it was said the Applicant’s employment as a carpenter/form builder involved:

“Critical job demands:

Occasional lifting of wooden form up to 40 kg;

Frequent lifting of wooden form at around 25 kg;

Frequent climbing bamboo frame;

Frequent use of hammer”;

(c)    As the Applicant testified, he returned to the Construction Site to resume working for the 1^st Respondent shortly after the Accident but after about three weeks, found himself unable to continue to do so; he testified that he was required to install and dismantle wooden boards[9] and he was assigned to work in a team of four; he said he became more “lazy” as the pain in his left leg affected his mobility and he felt sorry for his colleagues as he was not working on full throttle and was lagging behind his colleagues;

(d)   He said that he could not cope with the work and still suffered from pinching pain in his left leg;

(e)    Mr. Wong (for the Respondent) complained that pain was a subjective feeling and was easy to allege but hard to disprove; he relied heavily on the tests which were conducted by Dr. Lau when he twice examined the Applicant respectively in 2004 and 2006;

(f)     in this connection, I would refer to the fact that upon a fair reading of Dr. Lau’s reports, he agreed that the Applicant was suffering from pain but he took issue with the Applicant’s complaints of “severe” pain;

(g)    Indeed, in his report dated 5^th September 2006, Dr. Lau  concluded that:

“(13)   I assess [the Applicant] to have suffered not more than 2% of permanent impairment of the whole person for the possible residual pain in his left buttock after the contusion injury”;

(h)    Clearly, Dr. Lau agreed that the Applicant did feel pain after the Accident and such pain had been assessed by Dr. Lau;

(i)      It is crucial to note that Dr. Lau did not testify in Court to go through cross-examination and his expert evidence was adduced by way of putting his reports as hearsay evidence;

(j)     I have considered carefully the contents of his four medical reports (which were repeatedly referred to by Mr. Wong in his written and oral submissions) and I would nevertheless hold that the Applicant (as he said) has been suffering from low back and left leg pains which caused him permanent partial incapacity;

(k)   Doing the best I can in the circumstances of the case, I would hold that for the purpose of section 9 ECO, the appropriate percentage should be 3% and the Applicant’s entitlement under section 9 ECO should thus be:

HK$16,000 x 72 x 3%

=          HK$34,560.

The Sick-leave Period Issue

35.The Applicant relied on the Sick-leave Certificates and the Board’s Review Certificate to advance his case for section 10 ECO payments beyond the 2-year period for 1 more year. In his final submissions, Mr. Wong provided me with two schedules and submitted that:

(a)    The Respondents accepted that if they were to be made liable to pay section 10 ECO payments in respect of the Sick-leave Certificates, the total number of days of sick leave from the Date of Accident to 13^th October 2006 should be 1,079 days or 35.967 months;

(b)   Dr. Lau’s opinion should be acted upon by the Court and the sick leave period should only run from the Date of Accident to late August 2004 (or 30^th August 2004);

(c)    The Sick-leave Certificates were all rebutted by Dr. Lau’s evidence and other medical evidence of the present case;

(d)   The Respondents were not alleging that the Applicant had obtained the Sick-leave Certificates by fraud or other dishonest means.

36.To determine the Sick-leave Period Issue, it is indispensable to refer to the provisions of section 10(2) ECO:

“For the purpose of this section a period of absence from duty certified to be necessary by a medical practitioner … an Ordinary Assessment Board … shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury”.

37.Prima facie, the Sick Leave Certificates fall squarely within section 10(2) ECO. Mr. Wong for the Respondents has fairly cited the Court of Appeal case of Choy Wai Chung v. Chun Wo Construction & Engineering Co. Ltd. [2001] 2 HKLRD 803 (“the Choy Wai Chung’s Case”). The facts of the case were that the applicant employee (an engineer) was injured on 28^th June 1996 whilst working for the respondent employer. He had been put on sick leave after the accident and he produced sick leave certificates from the date of accident to 27^th November 2001.

38.He made a claim for payments under section 10 ECO for temporary incapacity. The trial judge only allowed him to recover section 10 ECO payment for the 2-years’ sick leave period. Not satisfied, the applicant took the case to the Court of Appeal where he succeeded in obtaining section 10 ECO for the entire 3-year’s sick leave period.

39.The Vice-president of our Court of Appeal, Mr. Justice Rogers (Stock and Le Pichon JJA concurring) gave the unanimous judgment and stated that:

“In this case, as has been noted, the medical certificates cover the full period from the date of injury until after the hearing of this appeal. Moreover, the certificate of assessment which was issued by the Employees’ Compensation (Ordinary Assessment) Board on 21 July 1998 certified that the period of absence from duty necessary as a result of the injury as being 30 June 1996 to 10 July 1998. On the review, the Board’s certificate dated 29 October 1998 certified the period up to 16 October 1998 (at p. 806E) …

It would seem that, perhaps, sight was lost of the mandatory effect of s. 10(2). Not only were there medical certificates but the Ordinary Assessment Board had certified Mr. Choy as requiring absence from duty up until 16 October 1998, the date of its review.

No doubt, in civil claims for personal injuries, the court is entitled to look to see what the injuries of the plaintiff are and to see whether indeed the plaintiff was entitled not to be compensated on the basis he was not able to do any work. Compensation under the Employees’ Compensation Ordinance, however, is based in a number of respects on a different premise and the method of calculation is laid down in the Ordinance (at pp. 806I-807A)…

… the mischief sought to be cured by the introduction of the provisions of s. 10 was to alleviate the problem which would be caused when an employee suffered a period of temporary incapacity followed by a period of permanent partial incapacity which would result in his not receiving adequate compensation for the period when he was temporarily incapacitated. (at p. 807H) ...

Taking into account the medical certificates which have been produced, it seems to me to be fair in all the circumstances that Mr. Choy should receive compensation for temporary incapacity for the full three-year period possible. Thereafter, of course, the section mandates that the compensation which will be payable will be the compensation for permanent partial incapacity as certified by the Board (at p. 807J) …

I would therefore allow the cross-appeal of the applicant with the result that the period of temporary total incapacity should be extended for the full 12-month period after the conclusion of 24 months from the commencement of incapacity (at p. 808E)” (Emphasis added).

40.The Choy Wai Chung’s Case is a very clear example of where the Court had, pursuant to section 10(2) ECO, attached full weight to the sick leave certificates and the Board’s certificate in respect of the appropriate sick leave period.

41.It is worth noting that in Keung Ah Pan v. Hong Kong Macau Water Proof Engineering Co. Ltd., HCLA77/1994, unreported, 1^st May 1995, the employee (a roof repair worker) sued his employer in the Labor Tribunal for wages in respect of the period of time when his doctor (from the Queen Elisabeth Hospital) certified him to be unfit to work. The employer complained to the hospital and subsequently the hospital chief declared the certificates to be invalid on the ground that the employee had failed to go to the medical assessment board for examination. The presiding officer of the Labor Tribunal rejected the employee’s claim on the ground that he had some doubts on the employee’s sick leave certificates.

42.The employee appealed to the Supreme Court of Hong Kong and succeeded. In allowing his appeal, Mr. Justice Rogers (as he then was) commented on the sick leave certificates which were granted by a doctor from the Queen Elisabeth Hospital at p. 6:

“The attack on the validity of the medical certificate is not that he forged the certificate nor that he was fraudulent in obtaining one. I see no grounds therefore that any disciplinary measures could have been taken against him. He had what on 3^rd December was a perfectly valid medical certificate and, irrespective of the Hospital Chief Executive’s supposed power to declare it invalid, it was there”.

43.It may be appropriate to refer to what Lord Justice Denning (as he then was) had said in Lazarus Estates Ltd. v. Beasley [1956] 2 QB 702, 712, on the maxim that “fraud unravels all” in relation to a landlord’s written declaration to the tenant to effect repairs:

“We are in this case concerned only with this point: can the declaration be challenged on the ground that it was false and fraudulent? It can clearly be challenged in the criminal courts … But the landlord argued before us that the declaration cannot be challenged in the civil courts at all even though it was false and fraudulent; and that the landlords can recover and keep the increased rent even though it was obtained by fraud. If this argument is correct, the landlord would profit greatly from their fraud. The increase in rent would pay the fine many times over. I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court … can be allowed to stand if it has been obtained by fraud. Frauds unravel everything. The court is not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever …”(Emphasis added).

44.I have drawn the attention of Mr. Wong for the Respondent to the recent decision of Sin Fu Yau v. Wong Po Kee Ltd. [2007] 1 HKLRD 159 (“the Sin Fu Yau’s Case”) and invited submissions from him. There, the employee (a plumber) was injured at work on 4^th September 2002. He was given sick leave. He sued for section 10 ECO payments in respect of his 2-year plus 1 month and 3 days. He relied on the government doctors’ sick leave certificates. The employer and the principal contractor contested this claim and argued that section 10(2) ECO only provided a prima facie and rebuttable presumption. The case was argued on 21^st and 22^nd August 2006 and Deputy District Judge Anthony Chow handed down his written judgment on 5^th October 2006 and the applicant’s claim for extra sick leave payments for the 1 month and 3 days was allowed.

45.In the learned Deputy District Judge’s erudite judgment which spanned 62 paragraphs, a total of 18 cases (which were decided by the District Court, the Court of Appeal and Court of Final Appeal) were meticulously examined and the conclusion reached was well  encapsulated in the head-note as follows:

“In the absence of evidence of fraud, either by the certifying doctor or the employee, the presumption under s. 10(2) was irrebuttable. If a doctor signed a medical certificate without due consideration, that was a form of forgery”.

46.Although the Sin Fu Yau’s Case is, in terms of stare decisis, not binding upon me, it is highly and convincingly persuasive and I would follow it. I note that:

(a)    In Limbu Laxmi Prasad v. Dragages (HK) Joint Venture, DCEC1227/2006, unreported, 24^th October 2007, His Honor Judge David Lok said at p. 11:

“31.     There is some uncertainty as to the effect of the deeming provision in s. 10(2). On the one hand, we have cases which suggest that, in the absence of fraud, the deeming provision is conclusive about the period of sick leave for the purpose of calculating the compensation under s. 10. On the other hand, we have another line of cases which suggest that the deeming provision is rebuttable. A good summary of these two lines of cases can be found in the judgment of Deputy Judge Anthony Chow in Siu Fu Yau … Unless the interpretation of s. 10(2) is clarified by the higher courts, such uncertainty in the law will still continue to exist”;

(b)   The learned editors of the Hong Kong Civil Procedure 2009, Volume 2, shared the same view and said at p. 764:

“It would be preferable for the Court of Appeal to provide a more definitive ruling on this issue, to resolve any uncertainty”.

47.In view of the fact that many learned judges had already devoted  much time and efforts on the proper construction of section 10(2) ECO, it is not appropriate for me to provide further views on the issue in the present case save to say that:

(a)    The Sin Fu Yau’s Case does provide a workable and efficient means by which both frivolous claims of sick leave payments by employees and unmeritorious resistance of claims for sick leave payments by employers can be weeded out by the Court;

(b)   The fraud exception (which is part and parcel of the Sin Fu Yau’s test) is also an effective way to allow the Court to guard against fraud by unscrupulous employees and bad elements of the medical professions who may be tempted to parade sick leave certificates to claim for sick leave payments;

(c)    Unfortunately, in the HKSAR, there were cases of fraud in relation to medical certificates on sick leave. For instance, in HKSAR v. To Kwong Fai, CACC132/2003, unreported, 30^th January 2004, the defendants’ modus operandi was to enlist a private medical doctor to issue bogus medical certificates on sick leave and they then turned to the insurance companies to claim for loss of incomes under different insurance policies; the Court of Appeal (Stock JA and the late Gall J.) dismissed the defendant’s appeal against a 2-year custodial sentence;

(d)   Clearly, the test laid down in the Sin Fu Yau’s Case, namely, the sick leave certificates obtained from the prescribed sources would be conclusive evidence on the length and validity of the sick leave period unless fraud can be proved by evidence, does and will have the beneficial effect of encouraging amicable settlements of disputes under ECO in the HKSAR.

48.In the present case, I would hold that section 10(2) ECO provides an irrebuttable presumption under which it is incumbent upon the Respondents to prove the allegation of fraud so as to displace the presumption of section 10(2) ECO.

49.In the event that I am wrong on the nature of the presumption provided by section 10(2) ECO, I would hold that the Respondents have failed to rebut the Sick-leave Certificates in the present case.

50.It is clear that the Sick-leave Certificates were issued by the medical doctors and some of them came from the Department of Orthopedics of the Hospital. Mr. Wong provided an analysis of the Sick-leave Certificates and argued that only from 24^th November 2003 did some of the Sick-leave Certificates make the reference to “back injury” and “low back pain”.

51.I note that even according to Dr. Lau, (who insisted that the appropriate sick leave should start from the Date of Accident and should end on  30^th August 2004), during that particular period the relevant sick leave certificates made references to (in a chronological order) “left hip contusion”, “low back/buttock pain”, “left hip injury”, “contusion”, “low back pain” “left buttock injury with persistent pain” and “back injury”.

52.With respect, I could not understand the reason why, on the basis of the different descriptions used in the Sick-leave Certificates by the doctors, it could be argued that the Applicant’s entitlement on section 10 ECO should commence from the Date of Accident to 30^th August 2004. To me, that argument is a non-sequitur. Hence, I reject this line of argument as pure semantics and I would hold that there is nothing in it.

53.Mr. Wong argued that Dr. Lau first examined the Applicant on 9^th December 2004 and he would be the best doctor to judge when the sick leave of the Applicant should end. I disagree. As recounted in the above, after 9^th December 2004, the Applicant had been examined and treated by the various doctors from the Hospital and those doctors invariably prescribed sick leaves to the Applicant. Again, I fail to understand why the Court should abdicate its decision on the appropriateness of the sick leave period under section 10 ECO to Dr. Lau’s sole professional judgment. Surely, all the medical evidence relating to the Sick-leave Certificates should be carefully scrutinized by the Court.

54.Again, if Dr. Lau were to give evidence in the witness box, relevant questions on his medical reports could have been asked of him. That course of action was, however, not embarked upon by the Respondents.

55.In any event, the detailed arguments mounted by Mr. Wong for the Respondents on how to apportion and dissect the Sick-leave Certificates and the sick leave period were, legally speaking, unsound and should be firmly rejected by the Court bearing in mind the incisive guidance by the Court of Final Appeal in LKK Trans Ltd. v. Wong Hoi Chung (2006) 9 HKCFAR 103 (“the LKK’s Case”). There, the Court of Final Appeal authoritatively excluded the notions of causation and apportionment from the operation of ECO when the employee has a pre-existing condition which became worsened when he subsequently met an industrial accident at work (see: §§36-38, per Ribeiro PJ.). The LKK’s Case stands for the proposition that the Court will not allow the legal complexities and intricacies of a common law claim for personal injuries to cloud and eclipse the issues of fact and law under claims under ECO.

56.In this case, all things considered, I would hold that the appropriate sick leave period (as vouchsafed by the Sick-leave Certificates) should be 1,079 days or 35.967 months and the entitlement of the Applicant under section 10 ECO would thus be:

HK$16,000 x 4/5 x 35.967 months

=    HK$460,377.60.

Summary

57.To recap, I would hold that the Applicant can recover the following sum as the employees’ compensation under ECO from both the 1^st and 2^nd Respondents:

Add:

58.Pursuant to section 21(3) ECO, I would also hold that on top of the said sum of HK$267,267.60, the Applicant should recover from both the 1^st and 2^nd Respondents interest, namely:

(a)    From the Date of Accident (14^th October 2003) to the date of this judgment at half of the judgment rate of the District Court;

(b)   From the date of this judgment to the date of payment, at full judgment rate of the District Court.

59.I would make an order nisi that costs of the Application and the Appeal be paid by the Respondents to the Applicant on the District Court scale, to be taxed if not agreed and when necessary, the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

The coda

60.It is disheartening to note that whilst the Accident happened on 14^th October 2003, the Application was taken out on 5^th September 2005 and the Application could only be resolved on 23^rd October 2008 when this judgment is handed down after 5 full calendar years from the Date of Accident.

61.By any scale of time, 5 years is indeed a long time. Here, when the issue of liability to pay the employees’ compensation was conceded by the Respondents, the Respondents had chosen to deploy a litany of defences to contest the quantum of the employees’ compensation. At times, as recounted above, the supposedly clear and sharp contra-distinctions between a trial of (on the one hand) a common law personal injury claim and (on the other hand) a claim for ECO payments were blurred, fudged and lost sight of by the Respondents.

62.It is perhaps high time to echo what Mr. Justice Bokhary PJ had said in the LKK’s Case that:

“But the obvious object of the Employees’ Compensation Ordinance is speedily and with considerable certainty to provide urgently needed no-fault and compulsorily-insured compensation to injured employees or their families they leave behind. And that is not a context in which I see any warrant for resorting to that sort of apportionment and thus introduce the delay and uncertainty which apportionment would generally entail (at p. 107)”.

63.In the premises, I would order that:

(a)    The Application of the Applicant be allowed with judgment be entered against both the 1^st and 2^nd Respondents in the sum of HK$267,267.60together with interest and costs;

(b)   The Appeal of the Respondents be dismissed with costs.

Representations

The Applicant, Mr. Chu Yee Man, present in person;

Mr. Henry H. C. Wong of Messrs. Henry H. C. Wong & Co., solicitors for the 1^st and 2^nd Respondents.

[1] Mr. Justice Yeung JA concurred.

[2] He was aged 51 when the Accident occurred.

[3] This document was signed by Mr. So Wing Koo (the 2^nd Respondent’s Safety Officer) and embossed with the 2^nd Respondent’s company chop.

[4]It was pleaded in the Answer that:

“1.        … it is admitted that the Applicant met with an accident on 14^th October 2003”.

[5] = HK$17,600 x 72 x 3% for permanent partial incapacity.

[6] = HK$17,600 x 4/5 x 36 months for temporary incapacity.

[7] = HK$17,600 x 4/5 x 36 months for temporary partial incapacity.

[8] Dr. Lau examined the Applicant on 9^th December 2004 and 31^st August 2006.

[9] The wooden boards, according to the Applicant, were sized from (a) 0.6 foot (thick) x 8 feet (length) x 4 feet (width) to (b) 0.6 foot (thick) x 6 feet (long) x 4 feet (wide).

[10] This sum was agreed to by the Respondents.

[11] This sum was agreed by both the Applicant and the Respondents.