Chen Yong v. Chiu Yuk Lin and Another

DCEC 1411/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1411 OF 2011

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Before : Deputy District Judge Norman Hui in Court

Dates of Hearing : 8 August 2012

Date of Handing Down Judgment : 18 February 2013

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ASSESSMENT OF COMPENSATION

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Introduction

1.This is a claim for compensation brought by the applicant, Mr Chen Yong, for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”) regarding an accident that occurred on 15 December 2008 during which he suffered injury while at work.

2.The applicant also appeals against the Employees’ Compensation (Ordinary Assessment) Board’s (“the Board”) assessment issued on 6 April 2011.  After review, the Board assessed the applicant of having 5.5% permanent loss of earning capacity. 

3.This application was issued on 21 September 2011.  Interlocutory judgment on liability was entered against the respondent on 2 March 2012 by His Honour Judge Poon with compensation to be assessed. 

4.The respondent was not present at this hearing for assessment of compensation nor at any of the interlocutory hearings.  Having perused the relevant affirmation of service of Tsang Wing Pui dated 25 July 2012 and confirmed by the respondent’s most recent business registration particulars, I am satisfied that notice of this hearing was served on the registered office address of the respondent.  I am of the view that it is proper for this hearing for assessment of compensation to proceed despite the absence of the respondent.

THE EVIDENCE

The applicant’s evidence - the accident, injuries and treatment

5.The applicant himself testified and was the sole witness to appear at this hearing.  As previously mentioned, the respondent neither appeared at this hearing nor any of the interlocutory hearings.

6.The applicant was aged 45 years old at the time of the accident on 15 December 2008 and was aged 48 years old at this hearing for assessment of compensation.  The applicant had left China and came to Hong Kong in October 2008.  The applicant was hired by the respondent as a general labourer on 24 November 2008 after a referral by the applicant’s hometown friend from China. The respondent is a partnership that specializes in metal works.

7.The applicant was involved in an accident at a warehouse at Fung Kat Heung, Yuen Long, New Territories.   The applicant was in the course of his employment with the respondent at the said warehouse when he was instructed to lift and manoeuver a metal plate by way of a pulley system attached to the ceiling of the warehouse in order to construct a large water tank to be made from metal plates. Throughout the process of making the large water tank, the applicant was working together with a colleague of his known only as “Ah Hei”.

8.The applicant was required to stand on a two-level scaffold in order to manoeuver the metal plates that were suspended mid-air to construct the water tank when one of the metal plates suddenly broke from the pulley system.  The metal plate hit the scaffold where the applicant was working and caused him to fall to the ground and thus suffering injury (“the accident”).

9.The applicant was first sent to the Accident and Emergency Department at Pok Oi Hospital and thereafter to Tuen Mun Hospital for treatment and was found to have fractures at his right distal tibia and proximal right fibula.  The applicant was hospitalized for internal fixation of his said fractures on 19 December 2008 with locking plate and screw fixation. The applicant was discharged on 22 December 2008 and thereafter received follow-up, physiotherapy and occupational therapy.

The applicant’s evidence – monthly earnings and related matters

10.The applicant commenced employment with the respondent on the 24 November 2008 and this is confirmed via the respondent filing on 16 November 2009 the requisite Form 2 (“the respondent’s Form 2”) which provided and confirmed the same date of commencement of employment of the applicant.

11.The applicant was paid a daily wage of $500 by the respondent and this is confirmed via the respondent’s advanced payment record and related contemporaneous documents such as cheques and cheque deposit advices.  As such, there is no dispute that the applicant was paid a daily wage of $500 by the respondent.  For the purpose of completeness, the respondent filed on 6 January 2011 a change of information notification form to the Labour Department (“the Notification Form”) which indicated that a comparable worker of the applicant worked an average of 25 days out of the month and therefore earned $12,500 per month.

12.Given that the accident took place on 15 December 2008, the applicant had, in any event, worked less than a single calendar month and at most 22 days since his employment began with the respondent.  In fact it is noted that as per the applicant’s witness statement, the applicant confirmed that he had worked a total of 20 days between 24 November 2008 to the date of the accident on 15 December 2008.

The applicant’s evidence – loss of earning capacity

13.The Board issued its certificate of assessment on 8^th December 2010 via Form 7 which provided for a 3.5% permanent loss of earning capacity.  The Board thereafter issued its certificate of review of assessment on 6 April 2011 via Form 9 which provided for a 5.5% permanent loss of earning capacity and sick leave from 15 December 2008 to 3 August 2010. 

ISSUES FOR DETERMINATION

14.In summary, the main issues that remain for determination are, firstly, what is the amount of the applicant’s monthly earnings and secondly, in assessing the loss of earning capacity, whether I should allow the Board’s assessed amount of 5.5% permanent loss of earning capacity to be appealed.

The applicant’s monthly earnings

15.Mr Alfred C P Cheng, counsel for the applicant, has framed the applicant’s case on the issue of the applicant’s monthly earnings that the court is to essentially decide on one of two approaches.  One approach is that the appropriate method for calculating the applicant’s income is calculated pursuant to section 11(1)(b) of the Ordinance and the other is under section 11(2) of the Ordinance.  Mr Cheng has invited me to consider that between the two said approaches, it is section 11(1)(b) of the Ordinance which is the more appropriate of the two in the present case.

16.Section 11(1)(b) of the Ordinance is as follows:

“(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.

whichevercalculation is more favourable to the employee.”

17.Section 11(2) of the Ordinance is as follows:

“(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 impracticable 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, 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.”

18.In the case of Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643, it was on the very first day of employment when an accident occurred on a construction site to the applicant whilst working for the respondent as a causal worker.  The applicant worked 20 to 21 days a month at $600 per day with his previous employer in the past few months before the accident and the respondent objected to the calculation of 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 workers 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 2nd 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)

19.In the case of Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337, the applicant was a woodworker earning a daily wage of $700 and had not yet worked for the respondent for a full month. The applicant testified and called 3 witnesses which included a medical practitioner whereas the respondent testified but without calling any witnesses. On appeal, the issue to be determined was whether section 11(1)(b) of the Ordinance should be applied or 11(2).  The respondent paid a daily wage of $700 to workers doing similar jobs despite there being only 20 working days per month which meant monthly earnings of $14,000 and this was not a matter that was challenged or in issue.  

20.Yeung JA held that a flexible approach should be adopted in interpreting the provisions of the Ordinance.  It was also held by Yeung JA that there should be flexibility given to the courts so that they can ensure employees will, as far as possible, be given reasonable pecuniary compensation.

21.Yuen JA held that section 11(2) has been enacted since the Ordinance makes it clear that the basic temporal unit for the calculation of an injured employee is into single months and in any event the Ordinance is applicable to all salaried employees regardless of the unit in which they are paid (ie monthly, weekly, daily) which are then standardized into earnings based on a single month whether under section 11(1) or 11(2).  Yuen JA held that Lai Cheung Kwong (supra) was a decision where Cheung JA considered section 11(2) applicable, Yeung JA considered section 11(1)(a) applicable, whereas Yam J considered section 11(1)(b) applicable.

22.Yuen JA agreed with the reasoning of Cheung JA in Lai Cheung Kwong (supra) and when considering the situation between sections 11(1) and 11(2), in particular the words for any “lesser period” as per section 11(1)(b), held as follows:

“26. (1) As pointed out above, an employee can be remunerated on a monthly, weekly or daily basis. The amount of work that an employer assigns to an employee within one month, in particular an employee who is paid wages on a weekly or daily basis, is by no means fixed. Employer A may merely give his employee 20 days’ work in a month, whereas Employer B may give 24 or 25 days’ work. The amount of work that Employer A assigns to an employee in a particular month may also differ from that in the preceding or following month. When a worker who is paid a daily wage has been employed for less than one month, there is simply no basis for ascertaining the amount of work that his employer assigns to him, and sheer speculation on this will lead to unfairness. In such a case, there is simply no basis for calculating the employee’s earnings within one month.

(2) Section 11(2) is designed to overcome the very difficulty stated above. As in the present case, the method of calculation under section 11(1) does not apply as the Applicant had been employed by the Respondent for less than one month. Section 11(2) should apply to the present case, which falls squarely within the scenario covered by that section, namely “[w]here by reason of the shortness of the time during which an employee has been in the employment of his employer … it is impracticable to compute the rate of remuneration of such employee at the date of the accident”. In my view, the Judge should have applied section 11(2) and calculated, on all the evidence before him, the Applicant’s earnings in one month, and then proceeded to work out the compensation payable to him.”

23.Chung J held that the “lesser period” under section 11(1)(b) could be construed as “less than one month” since it made no difference whether the injured employee earned wages on a daily, weekly or monthly basis since neither the legislative intent of the Ordinance nor the content and/or wording of the various provisions in section 11 substantiates that the Ordinance cannot or should not be relied on in calculating the “earnings” of an applicant employed for less than a month and whose salary is calculated on a monthly basis.

24.Chung J having considered the provisions of section 11 held that:

“44. Given that section 11(1)(b) is applicable to the abovementioned injured employee whose salary is calculated on a monthly basis, it should equally be applicable to injured employees whose salaries are calculated on other bases, unless there are compelling reasons for concluding that Cap 282 intends to treat those employees differently.

45.  I conclude that neither the legislative intent of Cap 282 nor the content of the provisions therein provides a basis for the differential treatment mentioned in the preceding paragraph.”

25.Chung J also held that section 11(1)(b) can be applied but only where the requisite and necessary evidence is available in the case.

“46. In reaching the above conclusion in respect of section 11(1)(b), I am not suggesting that all injured employees who have been employed for less than one month will as a rule be able to rely on that section in calculating their “earnings” for the purposes of Cap 282. Whether those employees may rely on section 11(1)(b) must still depend on whether their remuneration during the pre-injury “lesser” period is such as to render it “practicable” to compute their “monthly remuneration”.

47. If the evidence submitted by the employees does not enable this to be done, their “monthly remuneration” will have to be computed in accordance with section 11(2) (or even section 11(5)).”

26.Yuen JA also expressed her sentiment on this matter when her Ladyship held that:

“Postscript

31.         I wish to take this opportunity to remind practitioners acting for applicants who are employed on a short-term basis that they should be aware of the evidence required under section 11(2) when they are preparing their cases for trial.”

27.I would additionally add that the case of Leung Wai Pong v Tang Hon Kong trading as Kin Wah Decoration Company, DCEC 237/2007, 19 November 2008, to be useful in the premises.  His Honour Judge Lok (as he then was) had the benefit of presiding over a fully contested trial and heard full arguments before him with consideration of both Lai Cheung Kwong (supra) and Or Wing Ming (supra).   As also applicable in the present case, it was held in Leung Wai Pong that:

“19.(i) the methods of assessing the monthly earnings under ss11(1)(a) and 11(1)(b) are only applicable if the injured worker worked for the same employer for the relevant periods under the said sub-sections. In other words, if the worker injured himself on the first day of his work, his income earned by working for the other employers before the accident is not directly relevant in assessing the worker’s income at the time of the accident (perCheung JA in Lai Cheung Kwan, paras 6-9 and Yuen JA in Or Wing Ming, para 24);

(ii) the object of s 11(5) is to provide a minimum protection to an employee in the case that his monthly income is less than the amount prescribed in the statute, and the court should not therefore adopt this figure as the monthly income even if there is not much evidence about the earnings of other comparable workers for assessing the employee’s income under s 11(2) (per Yeung JA in Lai Cheung Kwan, paras 35-37, per Yuen JA in Or Wing Ming, para 26);

(iii) if the injured worker only worked for a short period of time and there is no practical way to compute the rate of remuneration, the court has to adopt the methods prescribed in s 11(2) to ascertain his monthly earnings, and it is the duty of the court to make such factual finding based on whatever evidence before the court (per Yeung JA in Lai Cheung Kwan, para 37); …”.

28.In relation to the evidence on this issue, various matters were canvassed when considering the applicant’s witness statement, the relevant documentary evidence and then the applicant’s testimony in their totality.

29.Firstly, the applicant’s witness statement stated that he had just arrived in Hong Kong recently (as respective to the date of the accident) and through the referral of his hometown friend from China had found employment with the respondent.  The applicant’s witness statement stated that when the accident happened he had not worked for one full month but neither did he have any fixed day-off and when there was work to be done he would try his best to go to work.  The applicant’s witness statement stated that had it not been for the accident he believed that he would have earned about $14,500-$15,000 as monthly wages since he would have worked for 29-30 days monthly. 

30.Secondly, the applicant’s testimony was that there was no reason or indication from the respondent that required the applicant to take any rest days at all. The applicant’s testimony was that it was up to himself to decide when to take rest days.  The applicant also stated in his testimony that “Ah Hei” had work of the same nature as the applicant and that he worked for the respondent virtually every day, namely 29-30 days out of the month. The applicant accepted that he was not sure if “Ah Hei” had also worked for other companies on a casual basis.  The applicant also stated that the respondent was very busy because he had very few workers and this was as per the comments of the applicant’s hometown friend who apparently stated that he was working virtually every day for the last 4 to 5 years. 

31.Given the foregoing evidence, I was invited to find that there was sufficient evidence to establish that the applicant would have worked 29 days with the respondent but for the accident as pursuant to section 11(1)(b) of the Ordinance.

32.Firstly, when considering the applicant’s witness statement as considered in light of the contemporaneous documents, namely the cheques for payment to the applicant, it is quite clear that the respondent has factored in 1 rest day per week to the applicant.  The Notification Form, as already averted to, provides that similarly experienced workers in the same area of work were working for 25 days per month and at the same daily rate of $500.  The said documents have not been challenged nor has further elucidation been provided by the applicant on the same.

33.In addition, the applicant had just arrived in Hong Kong and there is no evidence to show that he had any or any substantive experience in the area of work that he was employed in at the time. On the applicant’s own evidence, both Ah Hei and the applicant’s hometown friend alleged they were employed virtually every day, but it is again not disputed that the applicant did not have their level of experience in the area of the respondent’s trade or at least this was never part of the applicant’s evidence. As such, there is a difficulty in assuming that, despite the applicant claiming he would be willing and able to work for 29-30 days a month, that he necessarily would have been called upon to do so. It will be noted that out of the 22 days which the applicant could have worked for the respondent, the applicant in fact only worked for 20 days.

34.Secondly, despite the applicant’s testimony that there was no reason or indication from the respondent that required the applicant to take any rest days, I again repeat the matters from the aforementioned paragraph.  Additionally, there was no evidence in the form of witness statements or viva voce evidence from either “Ah Hei” or the applicant’s hometown friend from China and therefore no way to test the applicant’s allegations in relation to the number of days they had normally worked per month nor any evidence for how long this went on for.  I note that despite the applicant making such assertions about “Ah Hei” and his hometown friend from China in his testimony, in fact the applicant’s witness statement only makes mention of “Ah Hei” on aspects of liability and very peripheral evidence about the hometown friend from China of the applicant.  

35.In my judgment, the applicant has notably exaggerated his evidence about the number of his working days that would have been accorded to him per month but for the accident, namely, 29 to 30 days and that the evidence does not enable me to come to this finding.  I come to the conclusion that the evidence adduced to this court and when considered in the context of the overall factual matrix of this case has not rendered it practicable to apply section 11(1)(b) of the Ordinance.

36.However, on the evidence before me there is undisputed evidence as per the Notification Form that the respondent did hire other comparable workers at a daily wage of $500 for 25 days out of the month. It is also undisputed that the applicant did actually work for only 20 out of 22 days when he was working.  The respondent’s advanced payment record to the applicant and related contemporaneous documents also suggest that the respondent’s comparable workers did work approximately 25 days out of the month since the evidence shows the respondent’s workers being given 1 rest day per week.  I would add that when calculating the number of days worked per month for daily wage workers, the court was conscious of taking into account the experience and seniority of that particular worker as affecting whether he would take more than the usual statutory holidays as in the case of Fu Kwong Woon v Chau Woon & Anor, DCEC 285/1988, 13 February 1992. 

37.Given the foregoing matters, I come to the conclusion that based on the evidence before this court that I should and do apply section 11(2) of the Ordinance.  I calculate the applicant’s earnings on the basis of a daily wage of $500 for 25 working days a month and arrive at the monthly earnings figure of $12,500 ($500 x 25 days).

The applicant’s loss of earning capacity

38.The applicant appeals against the finding of 5.5% loss of earning capacity in respect of the applicant as per the Form 9 Certificate of Review of Assessment by the Employees’ Compensation (Ordinary Assessment) Board dated 6 April 2011 (“the Form 9 Certificate”).

39.The said appeal is brought pursuant to section 18 of the Ordinance and Mr Cheng has submitted that the court has the discretion to consider the loss of earning capacity afresh by taking all the circumstances into account and that the court is not bound by the figures in the Form 9 Certificate.  Mr Cheng has also invited me to consider that the applicant should be found to have an 8% loss of earning capacity.

40.Mr Cheng has helpfully cited the decision of Deputy District Court Judge Bharwaney (as he then was) in Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246 at 248G-I which held the following:

“In fact, whether an appeal is lodged pursuant to s18(1) or application made for compensation under s9 or, indeed, both procedures resorted to at the same time, it is clear that a court approaching the matter has to start afresh, relying not only on the certificate of the Board but also on any other evidence, especially medical evidence, adduced before it to assess the loss of earning capacity permanently caused by the injury suffered in an accident at work (Chan Kit v Sum Wo Industrial Manufactory [1989] 2 HKLR 230 at 233 and Yip Fong Ming v Joint-Effort Engineering Co & Anor (ECC 128/88. 17 May 1989 p3, unreported)).”

41.I would additionally refer to the case of Tsang Kwong Tong v Tennile Decoration & Design Ltd and Ors, CACV No 42 of 2006, 10 October 2006 referring to the ratio in Chan Kit v Sam Wo Industrial Manufactory[1989] 1 HKC 115 at 118D to E, where Hunter JA held that the correct test to apply for an appeal brought pursuant to section 18 against an assessment of the Board made under section 16D or 16G is as follows:

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

42.The applicant refers to the medical expert report of Dr Peter Ko Put Shui dated 23 May 2012.  Dr Ko assessed the applicant’s loss of earning capacity at 8%.  Dr Ko’s report was adduced without Dr Ko being called to provide evidence at the hearing. 

43.Dr Ko noted that the Form 9 Certificate was based on the applicant’s right ankle injury resulting in right ankle pain, scar, stiffness and muscle cramp. Dr Ko’s report made the observation that the applicant complained of residual right ankle pain, stiffness and weakness with associated numbness in the right foot dorsal area. X-ray shows the applicant’s fracture healed but there is mild mal-alignment in the AP and lateral projection with about 20 degrees of mal-rotation with external rotational deformity of the right foot.

44.Dr Ko opined that the applicant’s right ankle functional recovery reached maximal medical improvement.  Dr Ko opined that the applicant’s pre-accident job required lifting of very heavy weight, prolonged duration of walking, standing and frequent requirement of climbing scaffolds and squatting.  Dr Ko opined the applicant is not fit to resume his pre-accident job and that the applicant has been doing quite well in his post-accident job as a general casual worker in a food processing factory since 9 August 2010 at Lee Chun Food Limited where he is able to cope with lighter physical demands and no requirement for climbing on scaffolds or frequent squatting.

45.Dr Ko recommended that the applicant suffered from a 8% loss of earning capacity.

46.I remind myself that 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.

47.Mr Cheng has additionally submitted that Her Honour Judge Ng (as she then was) in Kan Wai Yip v Everbest Port Services Limited, DCEC 383/2008 provided considerations to be taken into account when considering assessment of loss of earning capacity, namely:

“43. The rationale as explained in Tsang Shau Tsan is straightforward – LOEC is a combination of various factors which include the injuries suffered by the employee and the resulting impairment as well as other matters of fact such as the employee’s age, education and background, his degree of difficulty in finding placement in the labour market and a comparison of the earnings that he is capable of with his impairment and the earnings he would have been able to make but for his injuries. These other factors concern matters of fact, and it is for the judge hearing the case as arbiter of fact to evaluate such factual evidence as well as the medical evidence and then come to his own assessment of the LOEC.”

48.Mr Cheng submitted that the Form 9 Certificate did not take into account the physical disabilities of the applicant’s right foot.  The disabilities related to the applicant’s right foot contributed to the reduced performance and capability of the applicant’s walking, standing and climbing tolerance.

49.The applicant’s witness statement and the documentary evidence relating to his post-accident employment shows that the applicant was paid an average of $7,480 per month since joining Lee Chun Food Limited. The applicant’s post-accident employment with Lee Chun Food Limited has resulted in a more relaxed working environment with lighter physical demands and no requirement for climbing on scaffolds or frequent squatting. The applicant at his post-accident employment is occasionally called upon to lift objects of heavy weight and when that happens the applicant suffers pain and requires medicinal ointment to relieve the said pain.

50.I again refer to Kan Wai Yip (supra) and note the following which I find applicable to the present case:

“45.     In my view, the rationale for such principle as explained in paragraph 43 above is equally applicable to employees’ compensation cases. Indeed, section 9(4) of the Ordinance, which provides inter alia that : “[in] assessing the [LOEC] for the purposes of subsection 3(b), …… the Court …… may but shall not be obliged to give weight to any actual earnings of the employee earned after the accident causing the injury”, makes it abundantly clear that aside from medical opinion other factual matters are also pertinent in assessing LOEC under section 9(1)(b) of the Ordinance. Given that statements of opinion by medical experts must be limited to their areas of expertise, they cannot speak to these other matters which the court may take into account in making its own assessment of the degree of LOEC.”

51.Given the foregoing matters, I come to the conclusion that the applicant’s appeal is successful and accept that the applicant suffers from an 8% for loss of earning capacity.

QUANTUM

52.In relation to the quantum of compensation to be awarded, the applicant was aged 45 at the time of the accident and his monthly remuneration was $12,500.

Section 9 compensation

53.Under section 9 of the Ordinance, the applicant shall be awarded compensation in the following amount, namely, $12,500 x 72 x 8% = $72,000.

Section 10 compensation

54.Dr Ko’s report opined that the sick leave received by the applicant from 15^th December 2008 to 3^rd August 2010 was considered to be appropriate and reasonable.

55.Under section 10 of the Ordinance, the applicant shall be awarded compensation in the following amount, namely, $12,500 x 4/5 x 19.5 = $195,000.

Section 10A medical expenses

56.Dr Ko’s report opined that the treatment, investigation and rehabilitation received by the applicant was considered to be appropriate and reasonable.

57.I have considered the applicant’s witness statement and the relevant documentary evidence relating to medical expenses.

58.Under section 10A of the Ordinance, the applicant shall be awarded payment for medical expenses in the following amount, namely, $7,162.

CONCLUSION

59.The total compensation payable to the applicant is therefore:

60.Accordingly, I make an order that the employees compensation assessed and awarded to the applicant be in the sum of $20,020.

61.The applicant is entitled to interest on the sum of $20,020 at half judgment rate from the date of accident, namely, 15 December 2008, to the date of assessment, and thereafter at judgment rate until the date of full payment by the respondent.

62.I also make a costs order nisi that the respondent do pay the costs of these proceedings, to be taxed if not agreed, with a certificate for Counsel. I thank Mr Cheng for his helpful submissions and fair treatment of the evidence.

63.The applicant’s own costs are to be taxed in accordance with Legal Aid Regulations.

Mr Alfred C P Cheng, instructed by Messrs Szwina Pang, Edward Li & Co, assigned by the Director of Legal Aid, for the applicant

The respondent is absent, unrepresented.