Lui Shun Yee v. Golden Sea Harbour Restaurant Ltd (in Compulsory Liquidation)
Read the full judgment text of DCEC 1473/2004 on BabelCite. This District Court judgment.
1. The Applicant claimed he was employed by the Respondent (which carried on business of a restaurant) as a dim sum cook. On 30 th April 2004 at about 11:00am to 12:00 noon, whilst in the course of his employment with the Respondent, he was burnt by liquid chemicals that spilled on him as he crouched on the floor to pack food in a refrigerator, and as he jumped up to avoid the chemicals he hit against the refrigerator and hurt his right shoulder (“ Accident ”). He further claimed that as a resul
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DCEC1473/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 1473 OF 2004 ----------------------
---------------------- Coram: H H District Judge Marlene Ng in Court Date of Hearing: 17th February, 2009 Date of Handing Down Judgment: 25th February, 2009 ---------------------- J U D G M E N T ---------------------- I. Background 1. The Applicant claimed he was employed by the Respondent (which carried on business of a restaurant) as a dim sum cook. On 30th April 2004 at about 11:00am to 12:00 noon, whilst in the course of his employment with the Respondent, he was burnt by liquid chemicals that spilled on him as he crouched on the floor to pack food in a refrigerator, and as he jumped up to avoid the chemicals he hit against the refrigerator and hurt his right shoulder (“Accident”). He further claimed that as a result he sustained chemical burns over his left arm, back, buttock and left foot as well as injuries to his right shoulder. 2. The Applicant claimed for employees’ compensation pursuant to the Employees’ Compensation Ordinance Cap.282 (“Ordinance”), and appealed against the assessments of loss of earning capacity permanently caused by the injury and of the period of absence from duty necessary as a result of the injury in the Certificate of Review of Assessment issued on 30th May 1997 (“Form 9”). 3. The Respondent went into compulsory liquidation pursuant to a winding-up order dated 26th January 2005. On 17th November 2005, Master Kwang of the High Court granted leave to the Applicant to continue and proceed with the present employees’ compensation claim against the Respondent. 4. Mr Ng Kwok Wai, a Joint and Several Liquidator of the Respondent (“Liquidator”), filed an Answer stating that (a) the directors and books/records of the Respondent were untraceable and (b) only limited information was available from the Protection of Wages on Insolvency Fund Board, so he was unable to comment on the Application. Thereafter, the Respondent did not participate any further in the present proceedings until the afternoon of the trial hearing. However, it was plain from the Liquidators’ correspondence to the court throughout the proceedings that they were all along monitoring the progress of the case. 5. By my order dated 26th September 2008, I directed that the trial of the present case be heard on 17th February 2009. According to the affirmation of service filed on 16th January 2009, such order was personally served on Mr Lui Chi Kit (“Mr Lui”), a Liquidator, on 9th October 2008. On 16th January 2009, Mr Lui wrote to the court stating that the Liquidators would not attend the trial. In the circumstances, even though the Respondent was absent on the morning of the trial hearing, there was no reason not to proceed with the trial. II. Further witness statement and documents 6. Pursuant to my order dated 13th June 2008, the Applicant filed and served his witness statement on 17th September 2008. Subsequently on 15th January 2009, without prior leave of the court, the Applicant filed and served his supplemental witness statement (see affirmation of service filed on 11th February 2009). 7. On 5th February 2009, the Applicant filed and served his supplemental List of Documents (see affirmation of service filed on 11th February 2009). The documents disclosed in Schedule 1 Part 1 of such supplemental List of Documents were all documents dated between 2003 and 2007. 8. Although there was no prior leave for further witness statement and notwithstanding the lateness of the further discovery, Ms Cheung, counsel for the Applicant, did not apply for leave at the trial hearing until enquiry by the court as to whether the Applicant intended to rely on his supplemental witness statement and supplemental List of Documents at the trial. 9. Given the lateness of the application for leave, which was made only at the trial hearing itself, it behoved the Applicant to provide the court and the Respondent with full information as to the reasons for the lateness. The need for an affidavit to account for such lateness for similar applications was accepted in Hong Lok School Limited & anor v Chow Sai Yiu & anor HCA17139&19001/1999, Deputy High Court Judge Lam (as he then was) (unreported, 7th July 2003) and Guangzhou Green-Enhan Bio-Engineering Co Ltd & anor v Green Power Health Products International Co Limited & ors HCA4651/2002, HCA2802/2003 and HCMP74/2004, Lam J (unreported, 21st August 2004). 10. No such affidavit was placed before this court, and Ms Cheung had to ask for the court’s indulgence to take instructions. After taking instructions, Ms Cheung submitted that the lateness of the further discovery (which admittedly disclosed documents which had been in the hands of the Applicant or his solicitors for some time) was because the Applicant’s solicitors chose to defer preparation of the supplemental List of Documents pending settlement negotiations with the Liquidators in order to save costs. 11. I am unable to accept such explanation as any legitimate excuse for the lateness. The trial date was fixed on 26th September 2008. In civil litigation, trial dates are fixed upon assurances by the party(ies) that the case is ready for trial or on the basis that any outstanding matter will be attended to forthwith and will not impinge on the trial dates. If the case is not ready for trial, it is incumbent upon the party(ies) or their legal representatives to alert the court tothe outstanding matter(s) to enable the court to make informed and appropriate case management decisions, eg to set the case down for trial with directions for early resolution of the outstanding matter(s). Alternatively, if the parties wish to withhold progress of the litigation pending settlement negotiations, they should still seek the indulgence of the court. Whilst the court encourages amicable settlement, the court at best will only allow reasonable time for such purpose and will be mindful to ensure timely progress to trial. To such end, the court will likely short-schedule the case for a directions hearing to set the case down for trial. 12. Since the Applicant’s solicitors did not adopt the aforesaid courses of action at the hearing on 26th September 2008, but only sought leave to set the case down for trial without intimation of any outstanding matter(s), I am not persuaded that the reason offered for the lateness of the further discovery is satisfactory. 13. As regards the Applicant’s supplemental witness statement, Ms Cheung submitted there was a change of handling solicitor on behalf of the Applicant, and it was upon review of the file by the new handling solicitor that the supplemental witness statement was considered necessary. If that were the case, then the Applicant’s solicitors should have immediately applied to the court for leave to file/serve further witness statement. No such application was made. In the circumstances, the above reason does not excuse the lateness, especially when the Applicant was legally represented all along. 14. However, the lack of a good reason for the lateness of the application is only one factor to be considered. Likewise, even if there is lack of any specific prejudice to the other party, it is not necessarily determinative or conclusive. The discretion whether to allow further evidence is a general one in which all the circumstances will be taken into account. Ultimately, it is a balancing exercise and the court must exercise its discretion in a fair manner having regard to all the circumstances and the explanation given (see Ketteman v Hansel Properties [1987] 1 AC 189, 220 and Sir Thomas Bingham MR in Costellow v Somerset County Council [1993] 1 WLR 256, 263-264). 15. Upon taking into account all relevant factors in the exercise of discretion, including the relevance and necessity of the Applicant’s supplemental witness statement and supplemental List of Documents for a just determination of the present case, their importance to the Applicant who sought to rely on them, the prejudice to the Respondent (if any), and whether any such prejudice could have been compensated by costs, I am satisfied that I should exercise my discretion in favour of the Applicant. I bear in mind that the Applicant’s supplemental List of Documents and supplemental witness statement did not raise any new dimension to his case, and such documents had been served on the Liquidators (albeit without prior leave of the court). I further note that the Respondent did not attend the trial despite having notice of such further material. 16. Therefore, at the trial hearing, I granted leave to the Applicant to file, serve and rely on his supplemental witness statement and his supplemental List of Documents with no order as to costs in respect of such application. To assist the Taxing Master in dealing with the costs of the trial, I apportioned 35 minutes of the trial hearing for such application. 17. I pause here to say that after implementation of the Civil Justice Reform in April 2009 the courts are unlikely to be sympathetic to late applications arising from, say, change of handling solicitors or deferral of proper preparation for trial pending settlement negotiations. It is expected that the courts will be far more firm in rejecting late applications, and practitioners should carefully take note of the winds of change in respect of civil litigation culture. III. Witness evidence 18. The Applicant was the only witness. He adopted his witness statement and supplemental witness statement as part of his evidence in chief. IV. Applicant’s background 19. The Applicant was 58 years old at the time of the Accident and 63 years old at the time of trial. He received education up to Form 1 level in Mainland China, and could read and write Chinese. He came to settle in Hong Kong in 1962. 20. The Applicant started to work as a dim sum apprentice when he was 14 years old, and by the time he was 20 years old he was a dim sum master. He had over 40 years’ experience, and continued to work as a dim sum cook until the Accident. 21. The Respondent employed the Applicant on 1st March 2004 to be in charge of its dim sum department. The Applicant’s working hours were from 3:30am to 3:00pm with 4 rest-days each month and 7 days’ vacation leave upon completion of a year’s employment. His work duties included making dim sum, controlling dim sum quality, and carrying out some cleaning work. 22. The Applicant’s monthly salary of HK$18,000.00 payable in arrears on the 10th day of each month was confirmed by (a) the wage record sent under cover of the Labour Department’s letter dated 22nd November 2006 to the Liquidators, and (b) the Particulars of Claim dated 7th June 2004 completed by the Applicant for the Labour Department. 23. The Applicant said (and I have no reason to doubt) that apart from a sum of HK$10,000.00 received on 10th April 2004, he had not received any wages or employees’ compensation from the Respondent. The Respondent closed down on 6th June 2004, and the Applicant could no longer contact its responsible person. 24. The Applicant said he did not suffer any work-related injury prior to the Accident apart from an injury on duty in/about 1989 whereby his hair/eyebrows were singed as a result of overheating of the stove. According to the expert medical report of the Applicant’s orthopaedic expert Dr Danny Tsoi (“Dr Tsoi”) dated 30th August 2007 (“Tsoi Report”), the Applicant also suffered from diabetes but it was well-controlled. V. Accident 25. The Applicant gave evidence that at/about 11:30am to 12:00 noon on the day of the Accident, he went to the dim sum kitchen on the 2nd floor of the Respondent’s restaurant to get some raw and half-cooked food from the large refrigerator. His 2 other colleagues in the dim sum department had left for lunch. At that time, he overheard the manager giving instructions to 2 female cleaning workers (whom the Applicant had not met before) to do some cleaning work in the kitchen. He then saw the 2 female cleaning workers carry a steel bowl of about 1ft in diameter, 10in in height and 90% full of steaming liquid to place it on the small refrigerator behind him. With his experience, the Applicant could tell from the smell of the steaming liquid it was a combination of caustic soda, detergent, bleaching agent and hot water. He told the 2 female cleaning workers to be careful. 26. The Applicant was crouching down at the corridor between the large and small refrigerators to pack food, so he was unaware of what the 2 female cleaning workers were up to. All of a sudden, he felt very painful as some hot liquid spilled on his body from the left, so he immediately jumped up. As a result, he hit his right shoulder against the large refrigerator, lost his balance and fell onto the floor which was covered with the liquid. Hisleft arm, back and buttock were very painful. As he stood up, he saw the 2 female cleaning workers were carrying out cleaning work with mops. 27. After the Accident, the Applicant used clear water to rinse his eyes and face. There were signs of burn injury on his left arm, back, leg and buttock, and his right shoulder felt painful. He went to the dining hall to inform his colleagues, and then immediately took a taxi to Queen Elizabeth Hospital (“QEH”) to seek medical treatment. 28. Physical examination at QEH revealed that the Applicant suffered chemical burn injuries, which was consistent with his account of the Accident. The medical reports from the accident and emergency department (“AED”) of QEH dated 4th September 2004 and 15th May 2007 also noted that the Applicant complained of injury on duty when he arrived at the hospital. Although the disclosed medical notes/records did not record any complaint about the right shoulder until 27th July 2004 (see paragraph 39 below), in the Tsoi Report Dr Tsoi opined that a contused right shoulder was consistent with the Applicant’s account of the Accident, and the supraspinatus tendon rupture of the right shoulder as revealed by ultrasound examination on 28th September 2005 (see paragraph 42 below) was very likely caused by the Accident in circumstances where there was no evidence of any pre-existing problem. 29. The Respondent also gave the Applicant a certificate under its own letterhead and with its round company chop affixed thereto (“Certificate”). The Certificate confirmed that the Applicant suffered a work-related injury at its restaurant on 30th April 2004. 30. On 24th June 2004, the Applicant submitted a Notification of Accident form to the Labour Department. The Labour Department conducted an investigation and compiled an Accident Report dated 19th October 2004. The account of the Accident given (a) by the Applicant in the Notification of Accident and in his declaration to the Labour Department dated 9th September 2004 and (b) by the Labour Department in the Accident Report was consistent with the account of the Accident given by the Applicant in his witness statement. 31. On balance, I accept the above account of the Accident by the Applicant, which account is well supported by the Accident Report, the Certificate, the medical reports and Dr Tsoi’s opinion. In the circumstances, I am satisfied that the Applicant suffered personal injuries as a result of the Accident arising out of and in the course of his employment with the Respondent. VI. Injuries and treatment 32. The medical reports of QEH’s AED dated 4th September 2004 and 15th May 2007 noted that the Applicant’s general condition was good, but he sustained left arm, back and buttock chemical burn injuries over 25% of his total body surface area. He was admitted to QEH’s department of surgery (“DS”) for further treatment. 33. On the Applicant’s admission to the surgical burn unit, physical examination showed circumferential 2nd degree burn with blister over left distal arm downwards involving all fingers but with good circulation of the limbs and digits, 1st degree burn over left thigh and left back, and 1st to 2nd degree burn over left buttock. He was given antibiotics/analgesics and put on daily wound dressing. Orthopaedic surgeon was consulted with referral to physiotherapy to prevent finger contracture. 34. The Applicant started to receive physiotherapy treatment on 3rd May 2004. Upon examination, there was marked decrease in the range of his left elbow, wrist and fingers. Left hip movement was nearly full whilst left knee movement was mainly limited by dressing. The other joints were normal, and transfer and ambulation were independent. Mobilisation exercise for left upper and lower limbs were given to improve the range of motion. Maintenance and walking exercises were given to maintain his general condition. 35. The Applicant’s condition gradually improved. When he was assessed on 7th May 2004, the movement of the left elbow and wrist showed some improvement, and passive movement of the left fingers was full. Physiotherapy treatment was continued, and finger mobilisation exercise was reinforced to enhance hand function. With further treatment, there was slight progress in the left elbow and wrist movement. 36. The Applicant’s wound condition improved, and subsequent ward follow up showed the wound was healing well “with full of finger movement” (see medical report of QEH’s DS dated 9th September 2004). As his condition was stable, the Applicant was discharged on 11th May 2004. He was referred for outpatient physiotherapy to continue with the mobilisation exercise, and was followed up at the surgical and orthopaedic outpatient clinics. His condition showed gradual improvement. 37. QEH’s DS referred the Applicant to Yan Chai Hospital (“YCH”) for physiotherapy treatment which commenced on 16th July 2004. On initial assessment, the wound was all healed. The active range of left shoulder and wrist were nearly full. The main limitation was left elbow and finger joints, which were 110º in flexion and 1cm away from palm on active finger closure respectively. Physiotherapy treatments including scar management (ie lanolin massage and desensitisation) and active shoulder, elbow, wrist and finger mobilisation exercise were given. 38. Orthopaedic follow up on 27th July 2004 and surgical follow up on 31st August 2004 showed the wound had healed completely with mild pain over scar at left elbow, and the range of movement was satisfactory. 39. At the outpatient orthopaedic follow up on 27th July 2004, the Applicant complained of right shoulder stiffness with pain, which he attributed to the injury as a result of the Accident. So further referral to YCH’s physiotherapy department (“PD”) was made, and regular follow up was arranged. 40. Upon objective examination on 9th August 2004, the active range of movement of the Applicant’s right shoulder was - with no definite tender spot. Hot pad and active shoulder mobilisation were given. The Applicant’s condition slowly improved after 5 sessions of physiotherapy. 41. Since 16th August 2004, the Applicant was given pressure garment for hypertrophic scar over the left elbow by YCH’s occupational therapy department. When the Applicant visited YCH’s PD on 23rd August 2004, daily home exercise programme was recommended. 42. On 28th September 2005, ultrasound investigation of the Applicant’s right shoulder showed tear of the supraspinatus tendon. On 21st April 2006, MRI investigation of the right shoulder showed full thickness of the supraspinatus with impingement. 43. Between 23rd and 25th October 2006, the Applicant was admitted for hospitalisation at QEH. Upon examination on 23rd October 2006, his right shoulder movement was markedly decreased. The muscle strength of his right shoulder was around grade 4 on a scale of 5. The Applicant’s chest condition was satisfactory, and he was able to walk independently without walking aids. Breathing/coughing, mobilisation and walking exercises were performed. 44. On 24th October 2006, arthroscopic rotator cuff repair and acrominoplasty of right shoulder were done. At the physiotherapy assessment on 25th October 2006, the Applicant could walk independently. His right shoulder was immobilised in an arm sling. The movement of his right elbow and fingers was full, and passive movement of his right shoulder was 20º in both flexion and external rotation. Maintenance and mobilisation exercises according to the rotator cuff repair protocol were carried out. The Applicant was discharged from QEH on the same day. 45. Between 26th October 2006 and 24th April 2007, the Applicant received 38 sessions of outpatient physiotherapy at QEH. Initial assessment revealed that his upper right limb was supported/ protected by an abduction splint. The post-operative dressing was intact with no oozing from the wound. The passive range of his right shoulder motion during flexion, abduction and external rotation were 70º, 40º and 20º respectively. The right elbow movements were full, but the Applicant mainly relied on his left upper limb for activities of daily living. Ice and magnetic field therapies were delivered to control the swelling, and microcurrent therapy was utilised to promote tissue healing. Exercise therapy was incorporated with reference to the arthroscopic rotator cuff repair rehabilitation protocol to enhance functional recovery. 46. Progressive improvement was shown. The assessment on 28th November 2006 revealed there was still residual pain experienced over the right shoulder, but assisted flexion and external rotation range of the shoulder had improved to 120º and 30º respectively, and the Applicant could manage self-care activities independently. Treatment was continued according to the rehabilitation protocol. 47. On 16th January 2007, the Applicant told the physiotherapist that his activities of daily living were not grossly affected by his right upper limb, but he still avoided exertion activities for his right shoulder. The active range of motion of the right shoulder in flexion, abduction, external rotation and hand-behind-back were correspondingly 140º, 140º and 40º and at 11th thoracic vertebrae level. The right shoulder muscle power was graded at 4 on a scale of 5. Thereafter, gradual strengthening exercises were incorporated into the treatment regime to speed up the recovery and to improve the Applicant’s functional capacity. 48. Physiotherapy assessment on 27th March 2007 showed mild residual pain over the Applicant’s right shoulder with an intensity rating of 3 on a scale of 10. His right shoulder range of motion was fairly satisfactory and the muscle strength was grated 4+ on a scale of 5. As his right shoulder condition was stable/static, the Applicant was discharged from treatment on 24th April 2007 after orthopaedic consultation. 49. At the surgical follow up on 16th March 2007, the Applicant still had residual pain over his left elbow region, but there was no functional disability for surgical problem (see medical report of QEH’s DS dated 11th July 2007). At the orthopaedic follow-up on 30th March 2007, the Applicant had less pain but still had mild stiffness at his right shoulder. 50. According to the Tsoi Report, all physiotherapy and occupational therapy treatments for the Applicant were stopped in/about May 2007 when a static stage was achieved. The Applicant continued to attend regular surgical and orthopaedic follow up every 6 months though recently no specific treatment was offered to him. 51. The above account of the Applicant’s injuries and treatment was well documented in the medical reports and records of QEH and YCH, and summarised in the Tsoi Report. I have no hesitation in concluding the aforesaid injuries and disabilities of the Applicant were caused by the Accident. VII. Expert medical evidence 52. Pursuant to my order dated 26th September 2008, the Tsoi Report and the expert medical report of the Applicant’s plastic surgery expert Dr Ian Nicholson (“Dr Nicholson”) dated 12th October 2007 (“Nicholson Report”) were adduced as evidence at the trial without calling the makers. 53. The Tsoi Report noted the Applicant had the following complaints in respect of his orthopaedic injuries :
54. The Applicant told Dr Tsoi he could handle his own personal care, but could not cook food, perform household chores, carry out manual work or play mahjong. 55. Dr Tsoi’s physical examination showed that although the Applicant held a stick on his right hand, he could walk unaided with normal gait and had no problem in changing posture (but toppled over when asked to squat). The range of motion of left hip, knee and ankle were well retained with no wasting of thigh and calf. Dr Tsoi opined that the use of a stick for walking might not be necessary, and the Applicant’s lower limb condition and ambulatory capacity were likely to be satisfactory. 56. There was patchy stable non-hypertrophic burn scar over left buttock, thigh and skin not adhering to underlying muscle or soft tissue, and stable, non-hypertrophic burn scars over left forearm circumferential around wrist region and extending to dorsum of left hand, but the scar over elbow region was tender. Stiffness of left wrist/elbow and at MCP/ PIP joints of the fingers (probably due to scarring over dorsal skin) was noted. The left fingertips could not reach the palm, and there was weakened left hand grip (4/5). Examination of the right shoulder revealed wasting of right scapular muscle and operation scars with limited shoulder motion in all directions and weakness on abduction, flexion and rotation (5-/5). 57. Dr Tsoi considered the treatment rendered to the Applicant standard and appropriate. Dr Tsoi further noted the Applicant had 3 main problems from an orthopaedic perspective :
58. In respect of (a) above, Dr Tsoi opined it was very likely to be genuine because stiffness of the Applicant’s leftfingers (probably due to scar contracture and some tendon adhesion around the wrist level) and his weakened grip strength (probably because the Applicant was unable to make a full grip) were confirmed. In respect of (c) above, Dr Tsoi noted the range of motion of the right shoulder was still restricted even after the operation, so it was very likely that the Applicant could not perform overhead activities with his right upper limb and he might have inconvenience in scratching his head and back with his hand. Dr Tsoi opined that the wasting of the scapular muscles was a sign of genuine weakness. 59. I pause here to note that in his witness statement and oral evidence the Applicant additionally claimed that (a) his daily activities were affected because the tightness of the skin on his back made it difficult for him to bend down, (b) when he woke up in the morning, he could not walk until after he performed exercises for a few minutes, (c) he could not sit upright (and had to slouch) because of the tightness of the skin on his back, (d) he could not sit on any hard seat due to burn injuries to his buttock, (e) the skin on his buttock would crack in dry weather, and (f) he lost the hot/cold sensation at the back of his left hand. 60. Dr Tsoi was of the view that the Applicant’s condition had attained maximum medical improvement. The prognosis for the right shoulder, left hand and lower limb were respectively guarded, fair and good. Dr Tsoi’s assessment of the Applicant’s overall permanent whole person impairment was 14% (ie 5%, 2% and 7% for (a), (b) and (c) respectively in paragraph 57 above). 61. According to the Nicholson Report, the Applicant had no cosmetic complaints about his scars, but he complained of stiffness of his left elbow, wrist and hand, tenderness of the scar at the left elbow region, and tenderness in his buttock. 62. Physical examination by Dr Nicholson revealed mild hyperpigmentation over left elbow region, most of forearm and back of hand. On the anterior aspect of the elbow, there was an area of pale scar 150 x 200mm which was hypersensitive to touch. The Applicant wore a band aid which partially covered the scar. But the scars of the forearm, back of hand and back of digits were otherwise soft and pliable, and no contractures were evident over the forearm and hand. Hand movements were stiff and clumsy, but no scar contracture was evident. 63. Dr Nicholson observed scattered pale areas of superficial burn scar over the left buttock and lateral hip area. Over both ischial tuberositus there was an area of hyperpigmented healed burn scar with a coarse and dry texture, but no tenderness was evident. Several small and scattered hyperpigmented areas of burn scar up to 20mm were present over the anterior aspect of the left lower leg. 64. Dr Nicholson opined that the scars were stable and the cosmetic disability as a result of the burn injury was 1%. VIII. Post-Accident employment 65. In the Tsoi Report, Dr Tsoi opined that the Applicant would have difficulty in performing more strenuous cleaning work such as cleaning windows/ceiling and moving heavy furniture and would encounter inconvenience in preparing food, and he might not be able to resume his pre-Accident work as a dim sum cook with his stiff right shoulder and clumsy left finger joints. Dr Tsoi was of the view that jobs with less upper limb manual demand/activities and those that did not require left hand dexterity would be suitable for the Applicant, eg security guard, store assistant and messenger etc. 66. After expiry of the Applicant’s sick leave period on 30th April 2007, and pursuant to Dr Tsoi’s opinion, the Applicant registered with the Labour Department to look for work as a security guard. Since certification was required for such work, he tried to enrol for “標準保安及物業管理證書課程” (“Course”), which was run by Caritas Institute for Further & Adult Education (“Caritas”). There was no vacancy at the time, but Caritas promised to let the Applicant know when there would be a vacancy for the Course. 67. In the meantime, the Applicant tried to find work at various restaurants. But his left hand was not dextrous enough to make fine/ delicate dim sum (eg 包蝦餃or 開粉果皮 or handle the filling for 蒸豬腸粉) and the dim sum masters declined to employ him. In about November 2007, the Applicant’s friend introduced him to work as a miscellaneous worker at a construction site. But on the first day the contractor noted the Applicant was not up to carrying heavy objects (eg cement), which was part of the work of a miscellaneous worker, so the contractor declined to employ him. 68. In mid-2008, Caritas notified the Applicant to submit an application form for the Course. A week later, he attended an interview by Caritas’ supervisor. After the interview, he left the premises by walking down a narrow staircase. Although he carefully held onto the handrails with both hands, at about the last 2-3 steps before level ground he fell down when a student bumped into him. The supervisor helped him up and was concerned he was not firm on his feet, so the Applicant confessed that after the Accident the scars at his buttock caused stiffness of the surrounding muscles, which affected his movements. The supervisor doubted whether the Applicant could perform building patrols as a security guard, and told him to go home and wait for Caritas’ reply. In October 2008, Caritas notified the Applicant that his application for enrolment for the Course was rejected. 69. The Applicant claimed he could not return to his pre-Accident work as a result of right shoulder and left hand injuries, and the choice of work open to him would be limited since he only received education up to Form 1 level. He believed that with his physical condition he could not undertake any job that required manual labour. 70. The Applicant continued to scan newspaper advertisements and attended job interviews for the posts of assistant messenger, shop assistant and miscellaneous worker at the vegetable market, but he still could not secure any work. He claimed the prospective employers declined to employ him because he walked slowly. However, such evidence on his continued efforts to find work was only elicited when he gave evidence, but could not be found in his supplemental witness statement, which was made as late as 15th January 2009. On balance, I am not satisfied the Applicant would be unable to handle work as an assistant messenger or shop assistant because he walked too slowly. Dr Tsoi opined and the medical reports of QEH and YCH all suggested that the Applicant’s lower limb condition and ambulatory (walking) capacity were satisfactory. Dr Tsoi also noted there was no wasting of thigh/calf muscles. However, I accept the Applicant might have some difficulty in negotiating staircases or working as a miscellaneous worker in the vegetable market as such work might require manhandling heavy objects or loads. 71. The Applicant claimed that up to the time of trial, he had not been able to find any suitable work. IX. Section 9 award 72. On balance, I am satisfied that the monthly earnings of the Applicant prior to the Accident were HK$18,000.00. 73. On the evidence, I accept the Applicant could not return to his pre-Accident as a dim sum cook. With loss of dexterity of his left hand, weakened left hand grip and stiffness of his left fingers, it would be impossible for him to make dim sum. This is evidenced by his failure to secure work as a dim sum cook despite attempts to return to such work after expiry of his sick leave. 74. The Applicant was 58 years old at the time of the Accident and 63 years old now. He was only educated up to Form 1 level in Mainland China, and apart from making dim sum had little exposure to other work or trade. But he was motivated to find work, and tried (albeit unsuccessfully) to work as a miscellaneous worker at a construction site, and to enrol for the Course to work as a security guard. 75. I am satisfied that the sensitivity and tenderness of the scar on his forearm, the clumsiness/stiffness of his left hand, and the tightness of his scars over his back and buttock/thigh (which affected staircase negotiation and squatting) would render the Applicant unsuitable for heavy manual work. This is supported by Dr Tsoi’s views in relation to the Applicant’s physical condition, and is consistent with the reason given by the contractor for declining to employ the Applicant as a construction site miscellaneous worker. 76. Dr Tsoi opined that the Applicant would be suitable for work that required less upper limb manual demand/activities and work that would not require left hand dexterity, eg security guard, store assistant and messenger etc. It is common knowledge that the work of a security guard, especially a building management security guard, often requires regular building patrols. With the tightness of the scars at his left buttock/thigh, I accept the Applicant’s ability to negotiate staircases in the course of patrol duties would be hampered. His post-Accident experience also showed that he would not be able to secure certification to work as a security guard. 77. I agree that the scope of work open to the Applicant would be limited, but he should be able to handle jobs that did not require substantial manual labour, staircase negotiation or dexterity of the left hand. Dr Tsoi opined that the Applicant’s general ambulatory (ie walking) capacity was satisfactory and it was unnecessary for him to use a stick. I am not satisfied that his cosmetic disability would have affected his job opportunities. As Dr Nicholson noted, the Applicant had no cosmetic concerns, and none of his post-Accident prospective employers ever raised cosmetic concern as a reason for declining to employ him. 78. Bearing in mind all the circumstances, I agree with Dr Tsoi that the Applicant could have worked as a store assistant or messenger even though he had been unable to secure such work so far. However, I believe the Applicant felt he could handle such work as he did actively look for such work after he could not return to the dim sum trade or work as a construction site miscellaneous worker. 79. Ms Cheung submitted there were special circumstances in the present case that would justify a higher percentage of loss of earning capacity under section 9(1A) of the Ordinance, which provides as follows :
80. In my view, if the special circumstances of an applicant fall within section 9(1A) of the Ordinance, the court will generally apply the Hong Kong Paper Mills formula as laid down in Hong Kong Paper Mills Ltd v Chan Hin-wu [1981] HKLR 556 and subsequently modified in Lui Kwong Yan v Shui Hing Decoration Works & Anor [1993] 1 HKLR 168 in assessing the percentage of loss of earning capacity. In Lau Man Keung v Yiu Wing Construction Co Ltd CACV2232/2001 (unreported, 10th June 2002), the Court of Appeal described the Hong Kong Paper Mills formula as follows :
81. Although I am satisfied the Applicant could not have returned to his pre-Accident employment, he could have worked as a store assistant or messenger. So in order to apply the Hong Kong Paper Mills formula, it was necessary to have evidence of the wages of a store assistant or messenger assessed at the date of the Accident (see Hong Kong Paper Mills Ltd v Chan Hin-wu [1981] HKLR 556, 560B-D, Or Wing Ming v Ho Chi Bing trading as Tin Kei Decoration Engineering Co DCEC248/2006, Deputy District Judge Abu Baker B Wahab (unreported, 11th July 2007) para.48 (reversed on appeal in [2008] 4 HKLRD 337 on other grounds), Leung Wai Pong v Tang Hon Kong trading as Kin Wah Decoration Company DCEC237/2007, H H Judge Lok (unreported, 19th November 2008) paras.38-39, and 李國榮 訴 石韓鑑 DCEC1469/2004, H H Judge S Leung (unreported, 5th February 2009) paras.36-37). 82. The Applicant by his supplemental List of Documents disclosed statistics from the Quarterly Report of Wage and Payroll Statistics September 2008 (“2008 Statistics”), which information related to a period almost 4½ years after the date of the Accident. It was the only available evidence on the level of earnings of the Applicant’s potential alternative employment by the time the Applicant closed his evidence and Ms Cheung commenced her closing submissions. 83. Ms Cheung asked me to infer the level of earnings as at the time of the Accident in 2004 from the 2008 Statistics. I was not persuaded I should or would be able to do so given the long lapse of time and the lack of any evidence as to the stability or volatility of the economy over the period. Put simply, the evidence then before me was quite insufficient for applying the Hong Kong Paper Mills formula. 84. Ms Cheung then orally intimated her intention to seek leave to re-open the Applicant’s case for introducing fresh statistical evidence on the level of earnings of the Applicant’s potential alternative employment in 2004. At first, she asked for the case to be stood down for a short while to enable the Applicant’s solicitors to download the relevant statistical material from the government website for submission to the court. 85. However, Ms Cheung faced a number of difficulties in her proposed course of action :
86. Ms Cheung therefore sought indulgence of the court to stand the case down to the afternoon to enable the Applicant’s solicitors to liaise with the Liquidators and to obtain an extract of the new statistical evidence before making the formal application for leave to re-open the Applicant’s case to introduce new evidence. 87. Mr Lui, Liquidator of the Respondent, attended the trial hearing in the afternoon. In the course of updating Mr Lui on developments in the morning, it transpired that Ms Cheung did not arrange for her written opening submissions (which she had lodged with the court) to be served on the Respondent (ie the Liquidators). This caused the court some concern especially when Ms Cheung’s intended application to re-open the Applicant’s case to introduce new statistical evidence was premised on the principles of the Hong Kong Paper Mills formula set out in her written opening submissions. Again, the case was stood down for Mr Lui to consider Ms Cheung’s written opening submissions and the new statistical evidence that the Applicant intended to adduce as well as the potential impact of the new material (if admitted) on quantum. 88. After Mr Lui had an opportunity to consider the above matters, he confirmed there was no objection for the Applicant to adduce the new statistical evidence. I therefore granted leave to the Applicant to re-open his case and to adduce the following documents as evidence at the trial : (a) extract from the Quarterly Report of Wage and Payroll Statistics March 2004 (“3/2004 Statistics”), and (b) extract from the Quarterly Report of Wage and Payroll Statistics June 2004 (“6/2004 Statistics”). 89. Much trial time was spent on the Applicant’s application to introduce new statistical evidence. The Applicant’s solicitors through Ms Cheung undertook to personally pay costs of and occasioned by the Respondent (ie the Liquidators) in respect of such application, and I granted a costs order in favour of the Respondent accordingly and assessed such costs on gross sum basis. Insofar as time (and therefore costs) were incurred in relation to such application in the morning of the trial hearing when the Respondent was absent, I directed that there be no order as to costs. I also directed that the question of whether an order for legal aid taxation for the Applicant’s own costs in respect of such application be reserved until the end of the case. 90. According to the 3/2004 Statistics, the average monthly salaries of a sales clerk/shop assistant and a messenger/office assistant were respectively HK$9,194.00 and HK$8,067.00. According to the 6/2004 Statistics, the average monthly salaries of a sales clerk/shop assistant and a messenger/office assistant were respectively HK$8,445.00 and HK$8,210.00. 91. Ms Cheung asked me to consider the earnings of a messenger according to 6/2004 Statistics. However, as I have found, the Applicant was capable of handling the work of a shop assistant or messenger. So it would be inappropriate to ignore the earnings of a shop assistant. In the circumstances, I find that a fair assessment of the average monthly earnings of work which the Applicant could have undertaken as a result of his injuries but assessed at the time of the Accident would have been about HK$8,500.00. 92. Applying the Hong Kong Paper Mills formula, I find that the Applicant’s loss of earning capacity is (HK$18,000.00 – HK$8,500.00) ÷ HK$18,000.00 = 52.78%. Since the Applicant’s loss of earning capacity as assessed in Form 9 was 18%, I allow the Applicant’s appeal against such assessment. 93. The award under section 9 of the Ordinance is HK$18,000.00 x 48 months x 52.78% = HK$456,019.20. X. Section 10 award 94. As a result of the Accident, the Applicant was granted 1,096 days of sick leave, ie from the date of the Accident (30th April 2004) to 30th April 2007 as supported by sick leave certificates. The Form 9 assessed the sick leave period to be from 30th April 2004 to 29th April 2007. Dr Tsoi opined that sick leave up to 6 months after the arthroscopic surgery (ie up to about April 2007) was reasonable. 95. By his Application, the Applicant sought periodical payments exceeding 24 months pursuant to section 10(5) of the Ordinance. In light of the Applicant’s right shoulder injury and consequent operation, which I find were caused by contusion to his right shoulder at the time of the Accident, I am satisfied that the period for periodical payments should be extended for a further 12 months under section 10(5) of the Ordinance, ie up to 29th April 2007, but I dismiss the Applicant’s appeal against the assessment of the sick leave period in Form 9. 96. In the circumstances, the award under section 10 of the Ordinance is HK$18,000.00 x 36 months x 4/5 = HK$518,400.00. XI. Section 10A award 97. The Applicant’s case in relation to his incurred medical expenses was uncertain. First, the Applicant in his supplemental witness statement claimed he had paid about HK$8,670.00 for medical expenses incurred in respect of his injuries as a result of the Accident. Secondly, Ms Cheung’s written opening submissions claimed the Applicant incurred medical expenses of HK$14,100.00 being HK$8,280.00 charged by QEH and HK$5,820.00 charged by YCH. Thirdly, Ms Cheung in her oral closing submissions claimed the Applicant’s medical expenses as evidenced by the medical records/receipts disclosed in the trial bundle were HK$7,040.00. 98. Unfortunately, Ms Cheung was unable to explain by reference to the medical records/receipts in the trial bundle the vast difference of 50% in the amount of medical expenses claimed in her opening and closing submissions. The court therefore had to sift through the large bundle of medical records/receipts to assess the section 10A award. 99. According to the schedule prepared by the Applicant’s solicitors (see trial bundle pages 273B-C), the Applicant paid a total sum of HK$8,280.00 for various inpatient hospitalisation charges and outpatient attendances at QEH between 11th May 2004 and 14th September 2007. Review of the trial bundle showed that they were supported by disclosed medical records/receipts save for 3 items :
Ms Cheung conceded that the amounts in (a) and (c) should be ignored. In the circumstances, I accept that the Applicant’s incurred medical expenses at QEH were HK$8,280.00 – HK$100.00 – HK$50.00 – (HK$60.00 x 4) = HK$7,890.00. 100. The above assessment is a far cry from the sum of HK$2,160.00 (being the sum in QEH’s statement of account at the trial bundle pages 186-192 and the sums on the 2 receipts at the trial bundle page 266) which Ms Cheung in her oral closing submissions submitted as the Applicant’s incurred medical expenses at QEH. No doubt working out the amount of medical expenses by cross-checking the medical records/receipts can be a tedious exercise, but due care is required not only to assist the court but to ensure there is no disservice to the claimant. 101. According to the schedule prepared by the Applicant’s solicitors (see trial bundle page 273A), the Applicant paid a total sum of HK$5,820.00 for a total of 95 attendances for physiotherapy treatment (between 16th July 2004 to 17th September 2007) and for occupational therapy treatment (between 2nd August 2004 and 6th May 2005) at YCH. 102. However, the printout from YCH for the period from 19th May 2004 to 17th September 2007 showed there were only a total of 80 attendances for physiotherapy treatment (16th July 2004 to 10th April 2006) and occupational therapy treatment (2nd April 2004 to 6th May 2005) for a total sum of HK$4,880.00 (see trial bundle page 185). I have no hesitation in adopting the information in YCH’s printout. 103. I suspect that the excess in the schedule prepared by the Applicant’s solicitors might be due to the 15 receipts issued by Princess Margaret Hospital (“PMH”) (see trial bundle pages 212-213, 215-216, 218-222 and 240). Since the Applicant himself gave evidence that he only attended QEH and YCH for treatment of his injuries as a result of the Accident, and he also suffered other medical complaints which were unrelated to the Accident (eg diabetes and urine voiding problem), I am not satisfied that the outpatient attendances at PMH were relevant. Indeed, Ms Cheung conceded they should be ignored. 104. The Applicant disclosed a medical receipt from a Dr William Yuen of June 2007, but Ms Cheung made no claim for the cost of such medical consultation. 105. In the circumstances, the award under section 10A of the Ordinance is HK$7,890.00 + HK$4,880.00 = HK$12,770.00. XII. Conclusion 106. In the circumstances, the compensation assessed and awarded in this case is HK$456,019.20 + HK$518,400.00 + HK$12,770.00 = HK$987,189.20. I therefore grant judgment in favour of the Applicant against the Respondent for the sum of HK$987,189.20 with interest thereon at half judgment rate at 4.096% pa from the date of the Accident (ie 30th April 2004) to the date of judgment herein and thereafter at judgment rate until payment. 107. In respect of costs of the action, there is no reason why costs should not follow event. I therefore grant a costs order nisi that the Respondent do pay to the Applicant costs of the action (including all costs reserved if any) to be taxed if not agreed with certificate for counsel. XIII. Legal aid taxation 108. I have reserved the issue of legal aid taxation of the Applicant’s own costs in respect of the application to re-open his case to adduce new statistical evidence. This matter has vexed the court. Given the clear intention to rely on the Hong Kong Paper Mills formula from the beginning and the settled law in relation to such formula, proper collation of relevant evidence would have obviated such application. The court is also troubled by the assurance given to the court as to the sufficiency of the evidence at the beginning of the trial. Indeed, it was through the good offices of the Liquidators, who acted with exemplary fairness, that the matter was resolved, but nevertheless time and costs had been incurred. 109. Having given the matter careful consideration, I accept Ms Cheung’s concession that there had been a mistake, and will on this occasion grant legal aid taxation of the Applicant’s own costs in respect of the action including the Applicant’s application to re-open his case to introduce new evidence. I make a nisi order accordingly.
Ms Diana Cheung instructed by Messrs Chong, So & Co for the Applicant. The Respondent in person and absent in the morning and part of the afternoon on 17th February 2009. The Respondent present and represented by Mr Lui Chi Kit, a Joint and Several Liquidator of the Respondent, for part of the afternoon on 17th February 2009. |
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