Lau Yuk Kwan v. Po Lin Monastery

DCEC 315/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 315 OF 2010

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Coram: His Hon Judge Leung in court

Date of hearing: 28-30 March; 12 April 2011

Date of judgment: 18 July 2011

J U D G M E N T

1.For alleged injury at work as a chef on 30 March 2008, the Applicant (“Lau”) claims compensation against his then employer, the Respondent (“the Monastery”) pursuant to the Employees’ Compensation Ordinance, Cap.282 (“the Ordinance”). Both liability and quantum are in dispute.

Background

2.As a religious and tourist landmark of Hong Kong, the Monastery in Lantau needs no introduction.  Lau started to work as the 3^rd Chef (三廚) at the kitchen of the Monastery in March 2007.  The kitchen serves the restaurant there which is open to the public.  30 March 2008 was the eve of the last day of his 1-year contractual term of service there. Lau allegedly sprained his left knee in the course of moving a bag of sugar from the ground to the stove inside the kitchen at about 3:20 pm on that day.  It was close to 9 pm when he summonsed the ambulance for sending him to the hospital.

3.The Monastery denies knowledge about or receipt of any report of the alleged accident until early April 2008; and therefore filed Form 2 reporting the alleged accident to the Labour Department only on 14 April 2008.  According to the Monastery, Lau’s employment would not have been continued at the end of his contractual term of service.  Nevertheless it had made periodical payments to and paid medical expenses for Lau in excess of HK$270,000.

4.By Form 7 dated 12 October 2009, the Employees’ Compensation (Ordinary) Assessment Board (“MAB”) assessed Lau’s permanent loss of earning capacity due to his left knee injury to be 3%.  By Form 9 dated 10 May 2010, the MAB maintained the assessment.  Lau is appealing against such assessment pursuant to section 18 of the Ordinance.

The issues

5.The issues are: (i) whether there was the alleged accident in the course and arising out of the course of Lau’s employment on the day in question; (ii) the section 18 appeal; and (iii) the quantum of compensation.

The alleged accident

6.There is no dispute that at the material time, Lau was responsible for making syrup for desserts such as bean curd pudding (豆腐花) once or twice a week.  In his evidence, Lau described how lifted a 60-kg bag of granulated sugar from the ground onto the stove inside the Soup Kitchen (湯房) so that he could pour the sugar into the pot for making the syrup.  In the course of that, he slipped, lost balance and knelt forward on his left.  The bag of sugar also fell to the ground.

7.Lau described the severe pain and swelling in his left knee.  He rested for a while before limping out of the Soup Kitchen.  He reported the accident to his senior colleague, Li (“Li”). Li failed to find the Head Chef.  At Li’s advice, Lau waited to see if his condition would improve.  Li helped Lau finish the syrup preparation.

8.According to his statement, Lau stayed at his dormitory until about 8 pm.  It transpired that in fact some colleagues had driven him to Tai O for dinner before returning to his dormitory that night.  As he found the swelling in his left knee had become serious, he called Li again later that night.  He decided to summon the ambulance.  It was close to 9 pm.  When he arrived at the Tai O Jockey Club Clinic, it was already close to 10 pm.

9.The Monastery disputes the occurrence of the alleged accident.  There is no eye witness of the occurrence of the alleged accident; but the Monastery argues that Lau could not be telling the truth in the following circumstances:

(1)  Lau could not be preparing syrup in the Soup Kitchen at the alleged time.

(2)  The accident could not have happened during work as alleged.

(3)  Lau never reported the alleged accident; and the office of the Monastery came to learn about that in early April 2008.

(4)  Li, who has filed his statement to corroborate Lau’s evidence, was not called to testify.

10.Interwoven with above contentions is the suggestion that the allegation of accident at work on 30 March 2008 came about after Lau became aware that his contract of employment would not be continued after 31 March 2008.

Was Lau preparing syrup at the time?

11.Ng (“Ng”) was at the time and still is the Head Chef of the Monastery.  He was the superior of both Lau and Li.  In his statement, Ng explained that every day by about 1:45 pm, the kitchen should have finished preparing all the food needed for the lunch service to patrons at the restaurant so that preparation of the syrup could start.  The syrup should be prepared by 2:30 pm.  Lee (“Lee”), according to her, was at the time in charge of the Monastery’s catering department and the kitchen.  She also said that the syrup was rarely prepared at as late as 3 pm.

12.Reference was made to the time when the syrup would be needed for dessert.  But there is no dispute that syrup was made once or twice a week rather than fresh for use by a particular time daily.  Reference was also made to the time when the chefs and staff would be off duty.  But Lau was the chef responsible for making the syrup.  According to Lau, chefs were off duty at 5 pm.  Therefore it cannot be said that making syrup at the time as Lau said would have held up the restaurant or the staff.  What Lau said is not inherently improbable.

13.At one point, Ng gave evidence that he actually talked to Lau at the entrance of the Soup Kitchen at about 1 pm when Lau was making the syrup at the Soup Kitchen.  This was not mentioned in his statements, the second of which was introduced at the beginning of the trial and where he specifically mentioned about passing by the Soup Kitchen between 3:35 pm and 3:45 pm that day.  More importantly, such assertion was first heard in court only when Ng gave evidence.

14.When further asked, Ng acknowledged that he did not actually see what Lau might be doing in the Soup Kitchen around that time.  Nor could he explain what made him believe that Lau was making syrup then.  Ng then suggested that nevertheless he saw restaurant staff come to the Soup Kitchen to collect the syrup before 2:30 pm.  He said he happened to remember that then in court.  All these do not add to the reliability of his evidence in this respect though.

Could the alleged accident have happened during work?

15.It was suggested that there was in place a system of moving loads during work, including how bags of sugar should be moved from the warehouse to the Soup Kitchen, and then to the cooking stove in a safe manner.  Photographs were produced depicting the demonstration by Ng and another staff, but not kitchen staff, of how the bag should be moved by 2 persons and with a hand-cart.  Lee testified to similar effect in her statement; but explained in court that that was actually hearsay from Ng.  According to Ng, he has never seen any kitchen staff carried out the work in the manner as Lau described.  He has not seen Lau worked that way either.

16.Lau denied that he had received such training for carrying out his work in the manner as suggested by Ng.  In any event, the fact that there might be a safe system, including training and instruction, does not necessarily lead to the inference that the kitchen staff would only have carried out the work in the manner as trained or instructed.  As far as liability for employees’ compensation is concerned, it suffices for the worker to get injured in and out of the course of work.  In court, Ng acknowledged that the kitchen staff, even if trained, might not follow the instruction at work.  By reason of section 5(4)(b) of the Ordinance, this, even if true, would not have mattered insofar as the employer’s liability for compensating the employee for injury at work is concerned.

17.When asked in court, Lau did not say that he saw what caused him to slip; but he believed it was water or grease that normally existed in the kitchen.  It was suggested that Lau could not have been so vague about what caused him to slip.  According to Ng, the texture of the floor of the Soup Kitchen was anti-slippery even if wet. Lee stated that the stove top had drainage so that the pots and utensils could be washed there without rendering the floor wet or greasy.  Photographs depicting the floor and the stove top were produced.

18.I am not convinced that ordinary spillage of soup or water when the cooking was in progress or when the pots and utensils were washed could realistically be avoided.  In court, at least Lee had to acknowledge such probabilities in the kitchen.  That, I find, explains why Ng and Lau had to wear water boots at work.

19.Lau allegedly sprained his knee in the course of lifting a bag of sugar from the floor to the stove.  What Ng suggested was that he could have used a hand-cart to bring the bag of sugar by the side of the stove.  As depicted in the photographs, Ng would still have to lift the bag single-handedly to pour the sugar into the stove.  In my view, what Lau said he did at the material time was not so extraordinary that this can be said to be inherently improbable.  Likewise, his case that he slipped in the course of doing that cannot in the circumstances be said to be inherently improbable.

20.This is also not the kind of case where the medical evidence or expert opinion (to be discussed below) indicates suspicion about inconsistency between the injury and employee’s explanation of how the injury came about.

Was the accident reported and when?

21.In respect of the date of giving notice of accident to the Monastery, Lau stated in the Application that the Monastery was fully aware of the accident on the day it occurred. Lau’s case is that he reported the accident right after its occurrence to Li who was then his immediate superior.  Ng and Lee confirmed in court that when Ng was not around, Li was the most senior in charge of the kitchen operation.

22.Neither Ng nor Lee was informed of the accident on 30 March 2008.  According to Lee, the telephone numbers of her and Ng were posted at the office so that they could be reached in case of emergency.  According to Lau, he had not paid much attention to the telephone numbers allegedly posted at the office, as he just clocked in and clocked out there.  He had not kept Ng’s telephone number either.  He understood from Li that Li was not able to find Ng at the time.  There is no dispute that Ng was off duty early that day.  Record shows that Ng clocked out at about 3:30 pm that day.

23.By his supplemental statement filed when the trial began, Ng added that after he had clocked out at about 3:30 pm at the office on the day in question, he made a tour back to the kitchen between 3:35 pm and 3:45 pm.  He passed by the Soup Kitchen.  Seeing some members of staff hanging out outside the kitchen, Ng continued to return to his dormitory, got changed and left the Monastery at about 4 pm.  Only in court did Ng add further that Lau was amongst those members of staff he saw outside the kitchen then.

24.Rightly or wrongly, Lau considered himself not a subordinate of Lee, as he understood that she was in charge of the restaurant (樓面) operation instead of the kitchen operation.  Lau did not think of reporting the accident to Lee on 30 March 2008.  The fact was that Lau did not go to the office to clock out that day.  His attendance record shows that.

25.Wan (“Wan”) was the secretary of the Personnel Department of the Monastery at the material time.  A Mr Poon (“Poon”) was responsible for the office and she had to report to him.  It was she who filled in Form 2 dated 14 April 2008 for reporting the accident to Lau to the Labour Department.  According to her, this happened after she had received instruction from her superior; and had had communication with Lau.  She had also received the sick leaves from Lau.

26.In court, Wan said it was Ng who told her about the accident to Lau.  But Ng denied that.  According to Ng in court, it was on 31 March 2008 when he learned about what happened to Lau the night before.  He took no step about that because everyone believed that Lau was ‘playing tricks’ (or in his words “玩嘢”).  This sounds like certain perception about why Lau complained about injury at work.  This was how the parties’ dispute as to whether Lau was aware on 30 March 2008 that his contract of employment would not be extended came into the picture.

27.There is no dispute that the contracts of various kitchen staff would not be continued after the end of March 2008.  Both Ng and Lee suggested that this was supposed to happen to Lau as well; yet neither of them was responsible for informing Lau of that. According to Lee, it was Wan who was responsible for informing those affected members of staff; but Wan never confirmed that.  According to Ng, he had talked to Lau about Lau’s employment situation, which he explained would be up to the top management (or in his words “上頭”).  Ng somehow suggested that Lau was informed of the non-continuation of his contract later that afternoon; but the basis for such hearsay is unclear.  Lau denied that; and as mentioned above, he did not even go to the office to clock out that day.

28.According to Lau, one reason he went to the Tai O Clinic in the morning of 31 March 2008 was to extend the sick leave.  When he returned from the Tai O Clinic in the morning of 31 March 2008, he went to the office and talked to Poon.  Upon his report about his accident and injury at work, Poon told Lau to keep his staff card and the key to his room at the dormitory for the time being.  Lee confirmed in her evidence that she did see Lau and Poon at the office that morning, though she had no idea about the content of their conversation then.

29.Wan admittedly did not have clear memory of the details of the matter now.  Considering the evidence, it is in my view more probable than not that Lau reported the accident to Poon on 31 March 2008; and it was from Poon that Wan received instruction to follow up with Lau about the reported accident in early April.  This eventually led to the filing of Form 2 dated 14 April 2008.  The suggestion, if any, that Lau’s complaint was somehow triggered by the Monastery’s decision not to continue Ng’s contract of employment is not fairly made out.

Lee did not testify

30.Lee has filed his statement to corroborate what Lau says what happened to him on 30 March 2008.  It was on the second day of the trial when the court was informed that Li could not attend the trial.  Besdies disregarding Li’s statement, I am asked to draw adverse inference from his failure to testify.

31.Reference was made to Telings International Hong Kong Limited v John Ho & Ors, CACV 10/2010 (22 October 2010) at para.79, citing Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKC 713 at 723B-E:

“Failure to produce evidence, as indicating unfavourable tenor of evidence: (1) In general, …… The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.

The non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavourable to the party’s cause……”

32.The above cannot be applied as a rule as the circumstances of cases vary from one to another.  The documents show that it was originally the Monastery that requested Lau to tender Li as a witness for cross examination, upon Li being mentioned in Lau’s statement.  As a result, Lau decided to call Li as a witness; and Li’s statement was thus prepared.  The intention to call Li remained (as apparent from counsel’s opening submission) when the case opened.  It was on the second day when Miss Chao informed this court that Li could not secure leave from his employer to come to testify.

33.My attention was also drawn to the fact that the potential difficulty on the part of Li to obtain leave from work had previously been made known to the court so that request had even been made to have the case re-fixed to the Fixture List.  Such request was refused by the court.  Considering all the circumstances, I am not prepared to say that the explanation for inability of Li to attend the trial was a recent fabrication; and that it was out of fear that the truth would be revealed that Li was not called.

Conclusion

34.Considering all the evidence, including those specifically discussed above, I accept Lau’s evidence that he slipped and sprained his knee when he was lifting the bag of sugar from the floor onto the stove inside the Soup Kitchen in the course of preparing syrup at about 3:20 pm on 30 March 2008.  I also accept his evidence that he reported the accident to Li on the same day; and on the following day to Poon of the office.  Accordingly I find the same to be the facts.

35.Regardless of whether or not his employment would have come to the end (on 31 March 2008), the accident did in fact occur in and arise out of the course of his employment for the purpose of section 5 of the Ordinance.  Liability is established.

Injuries and treatment

36.According to his statement, Lau could see that his left knee swell when he reported the accident to Li after the accident.  Such allegation, and thus the alleged degree of pain and incapacity, must be tested against the fact that Lau managed to go to Tai O for dinner and then back to his dormitory that night.  According to him, he was driven there and then back after dinner.  Yet that could not be a complete answer as there had to be moments when he had to move around outside the car both in Tai O and back to his dormitory at the Monastery.  His condition then was not such that he found it necessary to go to the Tai O Jockey Club Clinic while he was having dinner there.

37.According to his statement, Lau decided to summon the ambulance later that night because his left knee had swollen significantly.  According to him in court, the doctor at the Clinic found redness and swelling over his left knee; and explained that Lau had a sprain.  However, the report of the doctor recorded that physical examination upon Lau’s arrival revealed no redness, swelling or effusion but mild tenderness over the tendons of popliteal fossa of his left knee.  The range of movement of the left knee was full.  Oral medication and 1 day sick leave was given.

38.In the following morning, Lau managed to walk from the dormitory to take the bus from the Monastery to the Tai O Clinic again.  The clinic made no record of change in the condition of Lau overnight.

39.Since early April 2008, Lau had sought bone-setter’s treatment.  He had also attended various Government clinics and hospital for treatment.  He first went to Fanling Medicine Centre in April 2008.  Physical examination revealed mild swelling over his left popliteal fossa and tenderness.  There was no laxity of the left knee. Extension was full.  There was mild decrease in flexion over the left knee.  By mid-April, it was recorded that his pain had steadily decreased.  Range of movement of left knee was full by late April.

40.Lau stated to attend the General Outpatient Clinic at Shek Wu Hui, Sheung Shui towards the end of April 2008 during which he made complaint about low walking tolerance and pain upon squatting.  He attended the Fanling Clinic again in May 2008.  Since mid-May 2008, Lau had received physiotherapy in the North District Hospital.

41.The medical record of the Shek Wu Hui Clinic during the period between late May to late June 2008 shows that the range of movement of Lau’s left knee was well and full, without locking of knee.  There was tenderness over the left popliteal region (posterior aspect) of his left knee.

42.The consultation summaries of the North District Hospital since July 2008 recorded that Lau still complained about mild knee pain and the need to walk with walking stick outdoor.  But no swelling, instability or locking was found.  In late 2008, Lau reportedly had ceased taking regular analgesic.  In the summary in early November 2008, the doctor noted that girth measurement revealed no difference on both lower limbs, suggesting no muscle wasting at all.  There was also no effusion.  Range of movement of his left knee was “OK”.  The record expressly suggested that the doctor was puzzled as to the cause of the quite bad subjective symptom in the absence of any muscle wasting.

43.MAB assessment was not held until late September 2009.  Sick leave was given to Lau until then with a view to his resumption of light duties thereafter.  In the meantime, MRI examination was arranged to be held in early November 2009.

44.As mentioned above, MAB issued Form 7 in October 2009 certifying Lau’s 3% loss of earning capacity due to pain, stiffness and weakness resulted from his left knee injury.  The consultation summary in early December 2009 recorded that Lau intended to appeal against the assessment; and insisted on obtaining further sick leave.  As to the MRI, the doctor recorded suspicion of horizontal tear of the medial meniscus of Lau’s left knee.  Sick leave was extended.

45.In his report dated May 2010, the doctor responsible for the above consultation summaries concluded that Lau suffered from minor knee sprain; yet Lau complained about persistent pain not responsive to conservative treatment.  His knee condition was considered to be static.

46.Lau’s orthopaedic clinic attendance lasted until late 2010.

Medical expert evidence

47.Lau was examined by orthopaedic experts Dr Lam Kwong Chin (Dr Lam) and Dr Wong Lok Yan Ian (Dr Wong) on 3 September 2010.  The experts produced their joint report dated 24 September 2010.

48.The experts noted that Lau still complained about intermittent pain at the left posterior knee, which got worse after walking for 15 minutes, squatting and sexual activities.  He still required a walking stick for going out.  He subjectively felt only 30% improvement after the treatment received so far.

49.Besides referring to the findings recorded in the above medical records and reports of the Government clinics and hospital, the experts also carried out a thorough physical examination of Lau.  They agreed on the findings including the following significant ones:

(1)  Lau was seen walking in a mild limping gait unaided.  Whilst he could stand on right side single-legged, he demonstrated inability to do so on his left side even for a second.  He could not stand on tiptoes or heels.  He could half squat and rise without support.

(2)  Measurement of the girth confirmed no obvious (except for 0.5 cm) muscle wasting in the lower limb.

(3)  The left knee had no external deformity or swelling.  Lau complained of tenderness at popliteal fossa, maximal at posterior-medial aspect.  There was no collateral ligament or anterior-posterior laxity.  Lau also complained of pain at posterior aspect. He also demonstrated exertion and knee flexion being limited by pain.

(4)  X-ray of both knees showed no abnormality.

50.The experts agreed that Lau suffered from soft tissue sprain injury to his left knee.  But they differ in respect of the severity of the injury.

51.Dr Lam considered the soft tissue injury to be minor.  The clinical signs were not suggestive of more serious damage such as bony fracture, ligamentous tear or meniscal tear.  Dr Lam observed that the MRI scan in November 2009, though suggestive of suspected horizontal tear, did not actual reveal any definite abnormality over his left knee.  The suspected horizontal tear of medial meniscus was also incompatible with the clinical findings, which were predominant at the popliteal fossa (posterior of the knee).

52.Dr Lam opined that Lau should have recovered within a short time.  The chronicity and intensity of the condition complained about were found to be out of proportion to similar knee sprain without demonstrable structural damage sustained over 2 years by then. Dr Lam found Lau’s complaint to be vague and subjective.  As mentioned above, Dr Lam found no support for the complaint from objective signs of knee injury such as effusion, muscle wasting or ligament laxity.  He referred to similar doubt raised by the doctor at the North District Hospital in the consultation summary mentioned above.  Dr Lam believed that Lau had symptoms less than those alleged.

53.Dr Wong differed from Dr Lam.  He opined that the sprain injury also resulted in medial meniscal tear.  First, besides the MRI scan, Dr Wong referred to the complaint of pain over the posteromedial aspect of his left knee by Lau.  Second, Dr Wong referred to the over 40 sessions of physiotherapy given to Lau and the lack of record of his default in attending the sessions.  From that, Dr Wong apparently drew inference that the Physiotherapy Department must have considered that Lau’s symptoms continued to warrant the therapy.  Third, Dr Wong opined that as no mention was made of the condition of structures in the popliteal region in the MRI report, one could not be certain whether soft structures (including multiple tendons and joint capsule) were also torn but simply unnoticed.

54.Regarding Dr Wong’s opinion, Dr Lam found it necessary to add that as a usual practice in medical reporting, less commonly involved structures were not particularly mentioned when there was no abnormality found.  As the posterior of the knee was definitely included in a MRI scan of the knee, the absence of mention of abnormality in the report simply meant that no abnormality was present.

55.On balance, I prefer the relatively more down-to-the-findings approach of Dr Lam in analysing and understanding the medical evidence.  I do not prefer Dr Wong’s approach of drawing inference on the basis of Lau’s subjective complaints and of suggestion of possibilities.  Considering the facts as well, I find sufficient indications that the subjective complaints of Lau have been out of proportion to what the objective findings of his actual physical condition suggest.

56.The experts agreed that Lau would not benefit from further conservative treatment.

57.Dr Lam opined that there should be minimal permanent physical hindrance for someone after similar knee injuries to resume moderate manual work such as a cook.  Though there might be some reduction in work efficiency and endurance due to residual pain, the permanent adverse effect should be mild.

58.Dr Wong opined that the persistent pain and weakness of the knee and lower limb meant that Lau could not resume his original duty as a cook.  Emphasis was placed on the need to transfer heavy bags and the prolonged standing.  Unless adjustment was made for those job demands, Lau was considered to be fit to take up work of a sedentary nature such as receptionist or cashier.

59.In line with what I said above, I also prefer Dr Lam’s opinion on the impact of Lau’s knee condition on his capacity to resume his pre-accident job.  I must add that what is being considered is the nature of Lau’s pre-accident job as a cook, but not necessarily the job demand of transporting heavy bags and work in a kitchen of the scale peculiar to the Monastery.  There is no suggestion or evidence that a cook in a restaurant or café would normally be burdened with such job demands.

Section 18 appeal

60.It is argued that Lau suffers from loss of earning capacity exceeding the 3% assessed by the MAB.  In opening, the stance of Lau was that his loss of earning capacity should be 5% as assessed by Dr Wong.  In closing, this remained Lau’s primary position; but Miss Chao for Lau submitted that possibly his loss should be assessed by the special formula in Hong Kong Paper Mill Ltd v Chan Hin Wu [1981] HKLR 556 (as explained in Lui Kwong Yan v Shui Hing Decoration Works & Anor [1993] 1 HKLR 168).

61.The basis for arguing that there are special circumstances in the present case that warrant the application of the special formula is that Dr Wong recommended that Lau should take up job of sedentary nature.  According to Lau in court, he started to work as security guard in a market in late January this year.  He earns HK$288 per day or, as suggested, a monthly income of HK$7,488.  Hence, it was argued that neither 3% nor 5% truly reflects the loss of earning capacity of Lau. According to the special formula, the percentage, Miss Chao submitted, should be as musch as 46.89%.

62.I repeat the above discussion of the medical evidence and my preference of Dr Lam’s expert opinion. It should be noted that the alternative sedentary job was recommended by Dr Wong on the basis that Lau would not be expected to have to transfer heavy bags or to stand for more than 2 hours during work in such a job.  But as mentioned above, there is no suggestion that the job demand as a cook at the Monastery is typical of a cook in general restaurant or café establishments.

63.I do not accept that the possible residual pain of Lau has compromised Lau’s endurance in standing to the extent that he would have had to sit down at work.  It is hardly believable that Lau’s newly acquired job as a security guard in the market is in fact a sitting post such as a receptionist or cashier as recommended by Dr Wong.

64.I do not accept that Lau in fact has become incapable of resuming the pre-accident work as a cook.  There is no suggestion or evidence that Lau would face substantial cut in income from job as a cook in a restaurant or cafe compared with the income from working at the Monastery.

65.In submitting that the substantially higher percentage loss of earning capacity should be adopted, Miss Chao borrowed assistance from the percentage loss of earning capacity applicable to “ankylosis of knee joint” as listed in the 1^st Schedule to the Ordinance.  It ranges from 25% to 35%, depending on the condition.  Yet, the medical evidence in the present case clearly indicates that there has not been any locking of the knee joint or significant impairment of range of movement of the knee joint of Lau.  The reference to such listed percentage is counter-productive for Lau’s purpose.

66.In the circumstances, there is insufficient evidential basis for departing from the MAB’s assessment.  Dr Lam provided a similar assessment.  I therefore accept that Lau’s loss of earning capacity is 3%.  The section 18 appeal is dismissed.

Quantum

Pre-accident income

67.The parties agreed that the pre-accident monthly income was HK$14,100.

Section 9 compensation

68.Compensation pursuant to section 9 should be HK$14,100 x 72 x 3% = HK$30,456.

Section 10 compensation

69.The experts agreed that for an uncomplicated knee sprain, most patients would respond satisfactorily to conservative treatment within a short time.  In line with their respective opinion in respect of the degree of injury and condition of Lau, the experts differed in their assessment of the appropriate sick leave period.  Dr Lam opined that Lau should be able to return to work in 2 months, while Dr Wong considered that 1 year of sick leave was appropriate.

70.What Lau contends far exceeds the above.  He claims compensation for the period covered by sick leave since the date of the accident until 14 December 2010.  Alternatively, he seeks compensation for the period up to 26 April 2010 as certified by the MAB in Form 9.  In either case, Lau asks the court to order the Monastery to make such payments for more than 24 months from the date of accident.

71.Section 10(5) sets out the court’s discretion in this respect:

“An employee who has received periodical payments under this section for a period of 24 months from the date of the commencement of the temporary incapacity or for such further period being not more than 12 months as the Court may allow in any particular case shall no longer be entitled to periodical payments under this section but shall be deemed to have suffered permanent incapacity and the provisions of section 7 or 9, as the case may be, shall apply to the employee.”

72.The presumption under section 10(2) is relied on.  For the purpose of section 10(1), the period covered by sick leave shall be deemed to be a period of temporary incapacity irrespective of the outcome of the injury.  However, under section 10(1), the employer may prove that the employee has earned or has been capable of earning income from some suitable employment during the period of temporary incapacity, though certified to be necessary; and seek to have the compensation payable under the section reduced: see Yu Tat Kam v Chu Tung Shing & Anor, CACV 25/2008 (8 October 2009) at paras.23-27; Kan Wai Ming v Hong Kong Airport Services Limited, DCEC 1012/2009 (8 October 2010) at paras.62-64 (on appeal, CACV 240/2010 (26 May 2011) at para.17).

73.Mr Chan accepted that it is the burden of the Monastery to prove the income that Lau has been capable of earning during any part of the period of temporary incapacity, though certified.  He effectively suggested that Lau has been capable of resuming his pre-accident job after the MAB assessment in late September 2009.

74.The condition of Lau had become static so that MAB assessment was scheduled in 2009.  The occupational therapy and physiotherapy provided by the North District Hospital had ceased before the MAB assessment in September 2009.  By then, even the 1-year sick leave period recommended by his expert, Dr Wong, had already elapsed.  In the relevant consultation summary of the North District Hospital in late August 2009, the doctor advised to extend Lau’s sick leave only up to the MAB assessment scheduled to be held on 28 September 2009.  The fact that the MRI scan arranged for Lau had yet to be performed until November 2009 did not seem to cause the doctor to recommend even longer sick leave.

75.When Lau returned to the North District Hospital on 8 December 2009, it was recorded in the consultation summary that he insisted on further sick leave notwithstanding that the MAB assessment had taken place and Form 7 was issued in October 2009. In court, Lau disputed that he had said what were recorded in the consultation summary.  Nevertheless, on that occasion, sick leave was indeed extended for about a month to early January 2010; but with the specific advice that heavy physical duty should be avoided for 12 weeks (i.e., until March 2010).  Somehow physiotherapy was resumed in January 2010 too.

76.Indeed the extension of the sick leave subsequent to the MAB assessment at the end of September 2009 might invite scepticism. However, I do not find that the evidence suffices for the purpose of section 10 to deny Lau the compensation for such sick leave period.

77.I am prepared to award compensation under section 10 for the 24 months since the date of accident (until March 2010).  For any sick leave period beyond that, the presumption under section 10(2) will not be the complete answer; and whether compensation should be paid for that is a matter of the court’s discretion under section 10(5).  I decline to exercise the discretion for the extension.

78.The compensation is therefore HK$14,100 x 4/5 x 24 = HK$270,720.

Section 10A compensation

79.Lau produced receipts for medical expenses in the amount of HK$6,225 incurred up to 31 March 2010. He further claims to have spent another HK$1,075 since that date.  The total amount claimed is HK$7,300.  In line with the above, I award HK$6,225.

Summary

80.The compensation is as follows:

81.There is no dispute that Lau had received 4/5 pay and medical expenses from the Monastery since the date of the accident in the total sum of HK$273,031.90.  Credit should be given to such amount in calculating the compensation under sections 10 and 10A.  Upon that, the amount will become HK$(270,720 + 6,225 – 273,031.90) = HK$3,913.10.

82.For the avoidance of doubt, the award under section 9 is not affected by the payments that Lau had received from the Monastery: see section 10(4); Kan Wai Ming (CA) above.

83.The total award is therefore HK$(30,456 + 3,913.10) = HK$34,369.10.

Order

84.I give judgment against the Monastery for compensation to Lau in the sum of HK$34,369.10 with interest thereon at half judgment rate from the date of accident to today.  Interest thereafter accrues at the judgment rate until payment.

85.I make a nisi order that the Monastery is to pay Lau his costs of this Application, including any costs reserved.  Costs shall be taxed, if not agreed.  To avoid doubt, I certify the engagement of counsel.  Lau’s own costs shall be taxed subject to legal aid regulations.  This nisi order shall become absolute in the absence of application within 14 days to vary.

Miss Jolie CHAO instructed by Messrs Joseph Leung & Associates for the Applicant upon the assignment of the Director of Legal Aid

Mr K C CHAN instructed by Messrs Simon C W Yung & Co for the Respondent