Tsang Wing Tong v. Joy Faith Engineering Limited

DCEC 1635/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1635 OF 2012

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

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

DECISION

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

1.This is an application by the applicant for interim payment under order 29 rule 10 of the District Court Rules.

2.The applicant applied for the sum of HK $27,440 being the entitlement according to his calculation for periodical payments for the period from 26 October 2012 to 17 December 2012.

3.Under order 29 rule 11(1)(c) of the rules of the District Court, if, on the hearing of an application under rule 10 in an action for damages, the court is satisfied that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent, the court may, if it thinks fit, order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff.

4.Paragraph 29/11/1 of the Hong Kong Civil Procedure states that the object of an interim payment is generally to alleviate hardship during the period between commencement of the action and trial.

5.It is also stated therein that the court must be satisfied that the defendant has no arguable defence, or that there are sufficient doubts regarding the genuineness of the defence.

6.This is a claim for employee compensation.  The applicant sustained injury to his right wrist in the course of employment on 25 October 2010 at a construction site.  The accident was witnessed by one of his colleagues Mr Siu.  The applicant was admitted to the Accident & Emergency Department of Ruttonjee Hospital on the same date and was granted sick leave up to 26 February 2013 and continuing.

7.The respondent admitted that the applicant was his employee, a casual general labourer earning a daily wage of $700.  He also admitted that the applicant was at the construction site at the material time.  He did not put up any positive case.

8.Based on the evidence before me, I am satisfied that the respondent has no arguable defence.

9.The applicant was granted sick leave for more than 24 months but this application is not for the extension of the period of periodical payments. 

10.Form 7 was issued on 7 March 2013, in which the period of absence from duty as a result of the injury was assessed from 25/10/2010 to 21/2/2013.  The loss of earning capacity permanently caused by the injury was assessed at 5 %.  Both parties appealed against the assessment.

11.According to the medical report prepared by Dr Wong Tsz Cheung and countersigned by Dr Sieh Koon Man both of the Alice Ho Miu Ling Nethersloe Hospital dated 23 October 2012, it is stated that:

“X-ray showed the fracture healed in a shortened and displaced position. He was treated with physiotherapy for pain relief and mobilization exercise. Mr Tsang complained of persistent pain after physiotherapy. In view of the persistent symptom, operation with endoscopy was performed on 25/5/2011 which showed injury of wrist cartilage, so another operation with shortening of the ulna bone was performed on 30/6/2011.

On subsequent follow-up Mr Tsang’s wrist pain and stiffness improved.  However he still got pain on exertion and he is unable to resume his previous job.”

12.The applicant submitted that the Paper Mills formula should be adopted for the calculation of compensation for permanent disability, that is:-

HK$(18,200-8,000) x 72 = HK$734,400

If it is not adopted, the calculation according to Form 7 will be:-

HK$ 18,200x5%x72= HK$ 65,520

As for the compensation for temporary incapacity, it is submitted that the sick leave was granted to the applicant up to April 2013 and would be continuing.

13.The respondent submitted that in the sick leave certificate issued by Dr Yeung Lam Fung of the A&E Department of AHMLNH covering a sick leave period from 25 July to 13 August 2012, it stated that the applicant would be fit to resume duty on 14 August 2012.

14.The applicant submitted that the description appeared on the sick leave certificate as standard wording only.  It meant that the patient would be fit to resume duty after the period of sick leave.

15.I agreed that the description could not be regarded as formal medical opinion.  Furthermore, it is contradicted by numerous subsequent sick leave certificates and medical reports.

16.S10 (2) of the Employees’ Compensation Ordinance, Cap 282 provides that for the purposes of this section a period of absence from duty certified to be necessary by a registered medial practitioner ……, an Ordinary Assessment Board …. shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.

17.The applicant submitted that although he appealed against the assessment in Form 7, the compensation calculated according to Form 7 is the minimum amount he could get.

18.The description of substantial damages is relative, consideration should be given to the background and the amount of interim payment the applicant is asking for.  At this stage, I am unable to decide whether the Paper Mills formula would be applicable to this case.  For this application, it is suffice for me to say that the possible damages could be regarded as substantial, taking into account the background and the amount of the interim payment in dispute.  Even if the Paper Mills formula is not applicable, the possible damages may still be around $150,000 (($14,000 x 6 month) + $65,520 = $149,520) (the amount of the periodical payment, according to the respondent is around HK$14,000).

19.I am satisfied that the interim payment of HK27,440 will not exceed the damages he is likely to recover.  Any setting off to previous periodical payment has been taken into account.

20.The applicant is the breadwinner of the family, aged 55, a construction worker with no savings, married and has to support a child.  He has incurred more than HK$17,252 as medical expenses.  He has not received any periodical payment since November 2012.

21.Taking into account the above, I am satisfied that the applicant did suffer some hardship.  He has no income for around 6 months.

22.In the circumstances, I grant the application of the applicant. The respondent do pay interim payment in the sum of HK$27,440 to the applicant, with interest from the date hereof at judgment rate to the date of payment.

23.There seems to have no reason that costs should not follow event.  I grant an order nisi that the respondent to pay the costs of this application, including any reserved costs, to the applicant, on a party and party basis, to be taxed if not agreed. In the absence of application within 14 days, such order shall become absolute.

Mr Kenneth Lam, of Kenneth Lam, for the applicant

Ms Lorinda Koon, of Tang & Lee, for the respondent