Hui Chi Fai v. To Ka Seng and Others

DCEC 1516 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION NO. 1516 OF 2009

------------------------

------------------------

Coram: Deputy District Judge Clement Lee in Court

Date of Hearing: 18^th October 2010

Date of Handing Down Judgment: 26^th October 2010

------------------------

JUDGMENT

------------------------

A. INTRODUCTION

1.This is the trial of the application of Mr. Hui Chi Fai for compensation under sections 9, 10 and 10A of the Employees Compensation Ordinance (Cap 282) regarding an accident that occurred on 5^th September 2008 during which he suffered injury while at work. He also appeals against the Employees’ Compensation (Ordinary Assessment) Board’s assessment issued on 3^rd December 2009.  After review, the Board assessed him of having 2.5% permanent loss of earning capacity. 

2.Interlocutory judgment on liability was entered against the 1^st, 2^nd and 3^rd Respondents on 9^th April 2010 by H. H. Judge Poon. 

3.The 1^st Respondent was present at trial.  He did not challenge the quantum.  The 2^nd and 3^rd Respondents, same as in the pre-trial hearings, were absent during trial.  Having perused the relevant affirmations of service, I am satisfied that the notices of the trial hearings were served on the updated registered office address of the 2^nd and 3^rd Respondents.  I am of the view that the trial shall commence despite without their presence. 

4.The Board also endorsed 230 days being the period of absence from duty necessary as a result of the injury.

5.In short, the main issue for determination at trial is: (i) what is the amount of the Applicant’s monthly earnings; (ii) in assessing the loss of earning capacity, whether section 9(1A) should be applied.

6.The Applicant testified. He also called Mr. Yam Ka Fai to testify (“Mr. Yam”).  The 1^st Respondent chose not to testify.

B.    THE EVIDENCE

B-1  The Applicant’s evidence - the accident, injuries and treatment

7.The Applicant gives evidence at trial by confirming his witness statement. In summary, the relevant part of his evidence in support of the present application is as follows.

His background

(1)        He was aged 27 years old at the time of the accident and he was 29 years old at trial.   He had poor academic results and hence his only skill rests on scaffolding.

(2)        At the time of the accident, he was employed by the 1^st Respondent as a scaffolding worker.  He described his working experience as between the apprentice and a medium grade scaffolding worker.  Higher level is “master grade”.  These three levels would fetch different levels of daily earnings.  He relied on Mr. Yam’s evidence on these different levels of daily earnings.

The accident

(3)        On 5^th September 2008, at about 2:30 pm, he assisted the 1^st Respondent to carry out scaffolding works at Room A3, 6/F, No. 27 Paterson Street, Causeway Bay, Hong Kong (“the Scene”).   The accident occurred after the Applicant had demolished the bamboo at the Scene. He assisted the delivery of the bamboo from the Scene to the ground.  He did that step by step, from 6/F to the canopy of the building, which is about 20 feet above the ground, and then from the canopy to the ground level.  When the delivery was almost finished, the 1^st Respondent asked him to slide down from the canopy to the ground level through the “bamboo slide” (combining 2 bamboo tubes).  One of the tubes was suddenly broken and the Applicant fell from the height of about 20 feet.  He lost consciousness and was sent to Pamela Youde Nethersole Eastern Hospital (“PYNEH”) for treatment.  He was later transferred to the Department of Orthopaedics and Traumatology (“DOT”) of the United Christian Hospital (“UCH”) until he was discharged home on 11^th September 2008.        

(4)        According to Dr. Choi Yim Ping of PYNEH, examination on the Applicant on 5^th September 2009 showed the followings: “tender swelling over left elbow, abrasion over left hip with mild tenderness.  X-ray of left elbow and left hip showed fracture radial head and superior and inferior pubic rami.”  He was admitted to DOT of UCH for further treatment.     

(5)        According to Dr. Mak Nin Tai of UCH, examination on the Applicant on 8^th September 2009 revealed as follows: “left hip, shoulder, elbow, wrist pain and hand numbness; left elbow, shoulder and wrist tenderness; left elbow tenderness at radial head; left wrist tenderness at distal radial; left pubic rami tenderness; no limb neurological deficit; and anal tone normal.” X-ray revealed fracture left radial head.  CT scan revealed fracture pelvis-fracture left superior and inferior pubic rami; both column fracture with ilium extension on left pelvis.  Fracture left radial head was treated with hinge brace for four weeks; pelvis fracture was treated conservatively with wheelchair for four weeks, then non-weight bearing walking for eight weeks.”

(6)        The examination on 3^rd February 2009 revealed that “left hip mild pain, walk unaided, left leg single leg hopping: mild pain, x-ray pelvis showed fracture healed.  Left elbow full of movement, x-ray showed fracture healed.”

(7)        According to Pal Lui of UCH, occupational therapist, after 9 sessions of work rehabilitation training, the assessment on 20^th March 2009 showed improvement in his grip strength and he was able to climb scaffold in work simulated assessment.  He was ready for resuming previous job.     

(8)        The Applicant relied on Dr. Jack Wong’s expert opinion to support the contention that the loss of earning capacity should be 4%.  It must be noted that Ms Wan, solicitors for the Applicant submitted that the loss of earning capacity should be 67.8% by applying section 9(1A) of the Ordinance.

Monthly earnings

(9)        By an oral agreement made between the Applicant and the 1^st Respondent on 2^nd September 2008, the Applicant was employed at a daily wage of $400.  He was to work 6 days a week and the “red day” would be his rest day.  Thus, there should be 26 to 27 working days per month.  The accident occurred on the 3^rd day of his work with the 1^st Respondent at the same place.  Before the accident, the Applicant worked for the 1^st Respondent at other workplaces.  He would be able to earn daily wage at around $500 to $600 daily upon completion of the apprentice’s training period.

(10)        The Applicant also relied on the advance payment made by the 1^st Respondent for October 2008 to support the contention that his daily wage is $400 and the average working days are 26 per month. 

(11)        But for the accident, he would have taken the examination for medium level scaffolding worker in the end of 2008.  If he passes the examination, his daily wage may increase from $400 to the range of $500 to $600.   The mean figure of $550 is to be adopted.

(12)        Before the accident, the Applicant went out to the exterior of a building occasionally but his primary duty was to assist the master scaffolding worker by delivering bamboo to the master.  He would also tie the bamboo or assist building a scaffold if so instructed and supervised by the individual master.  After the accident, he lost confidence of climbing up and down the scaffold and he dared not going out to the exterior of the building because of the accident. 

B-2    Mr. Yam’s evidence

8.Mr. Yam confirmed and adopted his witness statement. In summary, the relevant part of his evidence is as follows.

(1)He is the current employer of the Applicant.  He knew the Applicant 3 to 4 years before the accident. He had cooperated with the Applicant on scaffolding works for an intermittent period of about 10 months. Before the accident, as far as he knew, the Applicant went out to the exterior of a building occasionally to assist the master scaffolding worker by delivering bamboo to the master.  After the accident, his observation on the Applicant’s physical ability was much limited.  He was not as energetic as before.  He was of the view that the Applicant should not go out to the exterior of a building hence he did not instruct him to do so.  His working ability is thus limited, so as his daily wage.  He can only work as a casual worker and was paid the daily wage of $320.

(2)The daily wage of a scaffolding worker can be divided into 3 categories: apprentice; medium level and master.  Their average range of daily wages are $200 to $300, $300 to $600 and $700 to $1500 respectively. Scaffolding worker with better working attitude and skill would fetch a higher end within the range.

C.   DISCUSSION

C-1 Monthly earnings-daily rate & working days

9.I do accept that the daily wage of the Applicant before the accident is $400.  This rate is supported by various contemporaneous documents including his declaration to the Labour Department made on 1^st December 2008. 

10.Regarding the number of working days, Ms. Wan submitted that the unchallenged evidence is that there were on average 26 to 27 working days.  Upon my enquiry of her understanding of “red days” as mentioned by the Applicant, she further clarified that the “red days” should not only cover rest days but should include statutory holidays (about 12 statutory holidays a year).  She said that 25 working days were acceptable to her.  However, a closer look at the Applicant’s own document suggests that the Applicant may not work on average of 25 days per month because of rainy days. According to the record of advance payment issued by the 1^st Respondent to the Applicant dated 15^th September 2008, rainy days and public holidays (statutory holidays) are not working days.   In my view, there should be rainy days that were not Sunday or statutory holidays and the average working days could not be 25 days per month.  Except bare assertion, the Applicant failed to adduce documentary evidence regarding the average working days per month before the accident nor the evidence of rainy days was adduced.  Without such evidence, it seems to me that I can only assess the number of working days on a broad basis and I come to the view that on average, there should be 22 working days per month.  

11.In essence, the Applicant’s monthly remuneration before or at the time of accident is $400 x 22 days = $8,800.

12.However, in assessing the amount of compensation under section 9 (permanent incapacity), I do not agree that at the time of the accident, he was an apprentice.  In my view, section 11(4) is not applicable.  If section 11(4) applies, that would increase his daily wage from $400 to $550 as if he finished his apprenticeship. Section 11(4) provides that:

“Where an employee was, at the date of the accident, employed under a contract of apprenticeship his earning shall for the purposes of assessing compensation payable in the case of death or permanent incapacity, be deemed to be such amount as if the accident had not occurred, he would probably have received upon the completion of his contract of apprenticeship.”

13.Firstly, the Applicant’s own evidence did not suggest that he entered into a contract of apprenticeship with the 1^st Respondent.   Secondly, according to the Applicant, at the time of the accident, his level of skill as a scaffolding worker was between senior apprentice and the medium level.  His then daily rate was $400.   His daily rate was within the range as if he was a medium level worker.  These ranges of daily rate were in fact part of the evidence of his witness, Mr. Yam.  Thirdly, although he planned to take the examination for medium level but he failed to register himself for the examination that would be held regularly twice a month.  I am of the view that so long as his skill reached a certain standard and was recognised by those sub-contractors who are willing to pay him the rate as if he is a medium level worker, examination is not a must.  The relevant certificate is just a proof of his skill.   In substance, the totality of the evidence suggests that he was no longer an apprentice at the time of the accident.  As a result, I am of the view that section 11(4) is not applicable.

14.In assessing compensation under section 10 (temporary incapacity), Ms. Wan submitted that either section 11(1)(b) or section 11(2) should be applied.  Only if section 11(1)(b) is not applicable then the Court should look to section 11(2).  Her personal view is that section 11(1)(b) is more suitable in the present case though the two sections may produce the same outcome.  The only difference is conceptual difference.   Section 11(1) (b) provides that:-

(1)         Subject to this section, for the purpose of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings-

(a)   for the month immediately preceding the date of the accident; or

(b)   computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer.

whichever calculation is more favourable to the employee.

15.Section 11(2) provides that:-

“11(2) Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impractical to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned:

- by a person of similar earning capacity in the same grade employed at the same work by the same employer

(“the 1^st limb of S. 11(2)”),

- or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district

(“the 2^nd limb of S.11(2)”).”

16.According to the Applicant’s evidence, he sometimes worked for Mr. Yam, sometimes worked for the 1^st Respondent.  At the time of the accident, he has worked for the 1^st Respondent for 3 days.   The bamboo demolition works were almost finished.  It seems that the Applicant, had there been no accident, had to await for another job order, it might be given by the 1^st Respondent, Mr. Yam or other sub-contractors.  This suggests the casual nature of the employment.  I am of the view that these 3 days’ employment period with the 1^st Respondent were too short to be used as a yardstick to calculate the monthly earnings under section 11(1)(b).  It seems that the 2^nd limb of section 11(2) is more suitable in the present case because no evidence was adduced on the rate earned by the same grade of similar capacity under the 1^st limb of section 11(2).  In brief, I accept Mr. Yam’s evidence in relation to the 3 levels of earnings of the scaffolding workers.

17.In Lai Cheung Kwongv Lo King Sum [2008] 3 HKLRD 643, it was the first day the applicant worked for the 1^st respondent as a construction site causal worker when the accident occurred.  The applicant worked 20 to 21 days a month at $600 per day for another employer in the same position in the past few months before the accident.  The respondent objected the number of working days per month.  At issue was how the injured worker’s monthly earnings were to be determined under section 11 of the Ordinance.  On appeal, it was held, inter alia, that:

“(1) (Per Yeung JA) In determining an injured employee’s monthly earnings, all such undisputed evidence as was available had to be taken into account. This was particularly true of casual worker in Hong Kong, who were seldom employed by the same employer for more than one month. Here, P’s monthly earnings should be fixed at $600 x 20 days = $12,000 (at 646)

(5) (Per Cheung JA) The 2^nd limb of s. 11(2), which allowed reference to be made to the earnings of a person in the same class and district of employment, applied to the present case. As the nature of P’s work prior to the accident was the same as that at the time of the accident, P was entitled to use his previous earnings as the basis for calculating quantum……” (at 646)

18.In Tang Chau Yuet v Fu Kin Po t/a Best Kitchen and others (DCEC 28/ 2008) Deputy Judge Clement Lee dated 9^th April 2010, it was the first day the applicant worked for the 1st respondent when the accident occurred. There was no verbal agreement between the respondent and applicant as to the daily wages and number of working days a week.   In computing the monthly earnings of the applicant, Section 11(2) was applied.  The court calculated the applicant’s monthly earning by reference to the applicant’s previous work history for the same type of work.  According to the applicant, it was the usual trade practice for him to work at $400 per day and worked 6 days a week and he worked on average 26 days (hence $13000 per month) per month for the 4 to 5 years before the accident. The court accepted the applicant’s evidence as credible and reliable.

19.In Wai Lai Fong for herself and on behalf of other members of the family of Kwok Tak Chung deceased v Wong Shiu Kei t/a as Wan Mei Aluminum and Steel Engineering and Wan Mei Engineering Co. (DCEC 730/2008), the Deceased had worked for his employer for 11 days before the accident.  He did not have fixed employer and fixed number of working days before the accident.  On average, he worked 18 days for the 12 months before the accident with daily wage ranging from $600 to $750 (mainly earning $600).  The evidence was unchallenged.  The court held that the 2^nd limb of section 11(2) was applicable. The mean figure of $675 was adopted as the applicant’s daily wage and the court accepted that the applicant’s monthly earning should be $675 x 18 days = $12,150.

20.In short, more authorities invoke section 11(2) in this kind of casual and temporary nature of the work and I am of the view that section 11(2) is more suitable than section 11(1)(b) in this case.  The monthly earnings of the Applicant before or at the time of accident is $400 x 22 days = $8,800.

C-2    Appeal against Board’s assessment

21.Next topic is the Applicant’s appeal against the Board’s assessment on loss of earning capacity issued on 25^th November 2009.

C-3    The Law on hearing such appeal

22.In an appeal under s.18 of the Ordinance against the assessment of the Board, the correct test is to “start afresh”: Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115, cited with approval in the Court of Appeal’s judgment in Tsang Kwong Tong v Tennile Decoration & Design Ltd., CACV No.42 of 2006 dated 10^th October 2006.

23.InTang Shau Tsan v Wealthy Construction Co. Ltd CACV 58/2000, it was held that it is for the court to assess the percentage of loss of earning capacity.  Medical opinion is useful, but it is for the court to come to its own conclusion: Butterworths Hong Kong Employees’ Compensation Handbook, paragraph 9.06, p. 100.

24.The concept of earning capacity is not limited to present, nor is it to be measured by some immediate and possibly quite fortuitous achievement.  It is concerned with a continuing state, with the potential of an individual and very much with the future: Lau Ho Wah v Yau Chi Biu [1987] HKLR 1061.

25.In the present case, the Applicant’s injury is not specified in the First Schedule.  Under such circumstances, the Court may invoke section 9(1)(b) and assess the percentage of the compensation which would have been payable in the case of permanent total incapacity:

“as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time…”

26.Alternatively,  the Court may invoke section 9(1A) and assess the percentage of compensation which would have been payable in case of permanent total incapacity:

“as is proportionate to the loss of earning capacity permanently caused by the injury or injuries in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time.”

27.The formula for assessing the compensation under section 9(1A) of the Ordinance is [(b – a)/b x c] with the abbreviations as follows:-

“a” is the wages/earnings of the job that the Applicant is capable of earning by performing the job that he is capable to undertake but assessed at the date of the Accident.

“b” is the pre-Accident wages/earning of the Applicant.

“c”     is the s.7(1)(b) “lump sum”.

28.Illustrations can be found in Hong Kong Paper Mills Ltd. v Chan Hin Wau [1981] HKLR 556 [at P. 562 AB]; Yip Fong Ming v Joint-Effort Engineering Co. [1989] 1 HKC 505; Lui Kwong Yan v Shui Hing Decoration Works [1993] 1 HKLR 168.  This is usually referred to as the Paper Mills formula as modified in Lui Kwong Yan v Shui Hing Decoration Works & anr. [1993] 1 HKLR 168) [at 171 L15 to 20].

29.In the present case, by a Certificate of Assessment dated 20 August 2009, the Applicant was assessed to have suffered 2% loss of earning capacity as a result of fracture of left acetabulum, left pubic rami and left radial head resulting in left hip pain. 

30.By a Certificate of Review of Assessment dated 3 December 2009, the applicant was assessed to have suffered 2.5% loss of earning capacity resulting from fracture of left acetabulum, left pubic rami and left radial head resulting in left hip pain and mild weakness.

31.Pursuant to section 18 of the Ordinance, the Applicant filed an appeal in his Application dated 31 December 2009 against the Assessment as stated in the Form 9, i.e. 2.5% loss of earning capacity for “fracture of left acetabulum, left pubic rami and left radial head resulting in left hip pain and mild weakness”.

32.The Applicant was examined by his orthopaedic expert Dr. Jack Wong on 14 May 2010.  His report is adduced without calling the maker.  Dr. Wong in his report stated his view on “diagnosis and causation” as follows:

-   Fracture of left radial head

-   Fracture of left superior and inferior pubic rami with extension into left ilium (acetabulum)

-   Soft tissue injuries over left shoulder and left wrist

-   Dr. Wong also agreed that the injuries were compatible with the circumstances of the accident as described by the Applicant

33.The Applicant has attained maximal medical improvement.

34.The Applicant still suffers from the following residual problems :

-   Residual pain, occasional numbness over left lower limb, pelvis, left elbow, and easy cramping of left hand. 

-   His walking and squatting tolerance is reduced

­   He was occasionally wakened up by pain at night. 

-   He can manage his daily activities well, but he cannot return to sports because of left lower limb pain

-   He could resume working as a scaffolding worker but with reduced working capacity because of weaken left leg, he cannot climb, he cannot take up exterior wall duties

-   There was residual pain and tenderness over left gluteal region (臀區) and left side of pubic region. 

-   The active rotation movements of the left hip joint were slightly reduced

-   Mild tenderness over left radial head with no muscle wasting

-   Mild extension block over his left elbow joint

-   His left grip was slightly weaker

35.He would have mild pain and discomfort when he exerts his left elbow and hip, such as continuous and excessive standing, walking, squatting, running or jumping; and excessive lifting with left upper limb.  Due to his painful left elbow and hip, his sporting enjoyment will be affected.

36.The left radial head fracture with residual pain and mild loss of extension accounts for 2% whole person impairment.  The left pubic ramal fractures with acetabular involvement cause left hip pain and mild loss of rotational movements, they account for 2% whole person impairment.  The combined whole person impairment is 4%.

37.Regarding loss of earning capacity, Dr. Wong opined that:-

(a)  The Applicant could resume working as a scaffolding worker but with reduced working capacity because of weaken left leg, he cannot climb, he cannot take up exterior wall duties;

(b)  He should be able to resume his pre-accident occupation as a scaffolding worker but with reduced capacity and efficiency because of painful and weak left elbow and hip;

(c)  He will have pain and discomfort with excessive lifting, prolonged standing, walking and squatting. It will be dangerous for him to perform exterior wall jobs at height;

(d)  He may need occasional sick leave to rest for exacerbations of pain;

38.His conclusion is that the Applicant suffers from 4% loss of earning capacity.   However, it seems to me that on one hand, Dr. Wong opined that the Applicant should be able to resume his pre-accident occupation as a scaffolding worker, but on the other hand, he opined that the Applicant cannot climb, he cannot take up exterior wall duties.  As a scaffolding worker, Dr. Wong should have known that the worker has to climb up and down, whether the work relates to delivery of bamboo to a master or the work relates to tying the bamboo together.  I find it difficult to understand these inconsistent statements.  Further, these statements were contrary to the observation of Pal Lui of UCH, occupational therapist, whose opinion is that after 9 sessions of work rehabilitation training, the assessment on 20^th March 2009 showed improvement in his grip strength and he was able to climb scaffold in work simulated assessment.  He was ready for resuming previous job.     

39.More importantly, it is the Applicant’s own evidence that he was slightly scared of climbing up and worked at height, something like the lack of confidence rather than his physical inability.  He needed time to adjust himself to work at height.  In essence, I am of the view that the Applicant could resume working as a scaffolding worker in full capacity.   Although he might not be the fittest as before, he should be as competent and skilful as before.  

40.However, Ms. Wan in effect asked the Court to ignore the assessment made by the Applicant’s expert on “4% loss of earning capacity”.  She asked the Court to invoke section 9(1A), that may increase the multiplier from 4% to 67.8%.  Section 9(1A) provides that:-

“Where-

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

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

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

(ii) his qualifications, previous training and experience,

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

41.Ms. Wan submitted that the Applicant earned much less after the accident ($4,596/month).  She said that this case falls within “special circumstances” under section 9(1A).   

42.She submitted that while the Applicant can perform works of similar type as a scaffolding worker, due to his symptoms and residual disabilities, the applicant cannot resume his pre-accident duties as a scaffolding worker in full capacity the duties of which necessarily include climbing of scaffolding and heavy manual jobs.  His choice of work are greatly reduced.  He cannot secure sufficient work and his employment periods tend to be periodical and short and he has suffered substantial loss of earning.  Given his limitation in returning to his pre-accident job and his limited choice of suitable employment as a result of his impairment and the great disparity of income between the income of the present job he is capable of undertaking and his pre-accident job, it is submitted that the formula in Hong Kong Paper Mills Ltd. v Chan Hin Wu (1981) HKLR 556, as modified in Lui Kwong Yan v Shui Hing Decoration Works & anr. [1993] 1 HKLR 168 should be adopted for calculating the compensation payable under section 9 of the Ordinance.  

43.In essence, I am of the view that the Applicant’s situation does not fall within “special circumstances” that cause me to invoke the refined Paper Mills Formula for the following reasons:-

(a)     Although he is not suitable for clerical or secretarial job, he has not tried to look for “lower physical strength” manual work such as warehouseman, painter or water seepage worker;     

(b)     He is able to resume working as a scaffolding worker;

(c)      His young age would enable him to take up new career as suggested above; he would be able to acquire new skill and qualification in other lower physical strength manual work; especially Mr. Yam said that the Applicant has a good working attitude.

44.Besides, having found that the Applicant could resume working as a scaffolding worker, I do not accept Ms. Wan’s submissions.  His limited choice of works or lesser earnings were very much due to his lack of confidence rather than his physical limitations.  I do not agree that the formula in Hong Kong Paper Mills Ltd. v Chan Hin Wu (1981) HKLR 556, as modified in Lui Kwong Yan v Shui Hing Decoration Works & anr. [1993] 1 HKLR 168 should be adopted for calculating the compensation payable under section 9 of the Ordinance.

45.While I disagree with Dr. Wong’s opinion that the Applicant cannot climb in light of the objective evidence of the occupational therapist and the Applicant’s own evidence at trial on lack of confidence of climbing up, I do agree with Dr. Wong’s assessment of loss of earning capacity in light of the residual problems of the Applicant.

46.In the premises, I should replace the Board’s assessment of 2.5% with 4%.

47.All in all, I do not accept the entirety of the Applicant’s evidence, Mr. Yam’s evidence and Dr. Wong’s opinion with my views above.

D.   QUANTUM OF COMPENSATION

48.I shall now come to the question of quantum.  The Applicant was aged 27 at the time of the injury and his monthly remuneration was HK$8,800.

D-1    Section 10 compensation

49.The Applicant has been given 230 days of sick leaves from 5^th September 2008 to 21^st April 2009.   This is endorsed by the Board.  Under section 10 (2) of the Ordinance, the medical certificates for sick leave are presumed to be conclusive evidence of temporary incapacity.  In the absence of evidence of fraud, either by the certifying doctor or the employee, the presumption under S. 10(2) is irrebuttable: Siu Fu Yau v Wong Po Kee Ltd. (DCEC 654/2003) [2007] 1 HKLRD 159.

50.I find that the Board’s assessment of 230 days of absence from duty necessary as a result of the injury appropriate, reasonable and sufficient.

51.I therefore award the Applicant HK$53,973.00 (HK$8,800/30 x 230 x 4/5) as compensation under section 10 of the Ordinance.   Deduction in the sum of HK12,320.00 as advance payment has to be made and that arrives at HK$41,653. 00.

Section 9 compensation for permanent partial incapacity

52.As I said above, I replace the Board’s assessment with 4% as my own assessment.   

53.I therefore award the Applicant HK$33,792.00 (HK$8,800 x 96 x 4%) as his compensation under section 9 of the Ordinance.

Section 10A medical expenses

54.The Applicant incurred the following medical expenses:-

55.The Applicant claims a sum of HK$1,410.00 under this head.  This is supported by various receipts.   I therefore award the Applicant HK$1,410.00 under section 10A of the Ordinance.

E.      CONCLUSION

56.For the reasons set out above, the compensation for the Applicant under the Ordinance should be: (a) HK$33,792.00 under section 9, (b) HK$41,653.00 under section 10, and (c) HK$1,410.00 under section 10A. The 1^st, 2^nd and 3^rd Respondents do jointly and severally pay the said compensation.  The Applicant is further entitled to interest on these sums at half judgment rate from the date of injury to the date of judgment, and thereafter at judgment rate until full payment.

57.Costs order nisi be made in that the 1^st to 3^rd Respondents shall pay the Applicant’s costs of this action.  Such costs shall be taxed if not agreed. The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.  Unless any of the parties seek to vary the costs order nisi by way of summons within 14 days from the date hereof, the cost order nisi shall become absolute 14 days from the date hereof.

Ms. Wan Pui Shan of Messrs. Fan & Fan, Solicitors for the Applicant.

The 1^st Respondent appears in person.

The 2^nd and 3^rd Respondents are absent.