Employee's Compensation Case2010

GILL AJMER SINGH v. WAH HING SCAFFOLDING ENGINEERING LTD AND ANOTHER

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CACV226/2013GILL AJMER SINGH v. WAH HING SCAFFOLDING ENGINEERING LTD AND ANOTHER

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DCEC 348/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 348 OF 2010

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IN THE MATTER OF AN APPLICATION BETWEEN:

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	GILL AJMER SINGH	Applicant
	and
	WAH HING SCAFFOLDING ENGINEERING LIMITED	1st Respondent
	GAMMON CONSTRUCTION LIMITED	2nd Respondent

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Before : Deputy District Judge R Lai in Chambers (open to public)

Date of Hearing : 30 October 2013

Date of Decision : 13 November 2013

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DECISION

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Introduction

1. This is an application by the respondents to vary the costs order nisi (the “Costs Order Nisi”) which I had made on 2 October 2013 when I dismissed the applicant’s claims in this action.

2. The applicant claimed in this action that an accident occurred on 20 August 2008 while he was working for the respondents causing him the injury of acute retinal detachment. I found that the applicant failed to prove the occurrence of the alleged accident and that even if there was such accident, it did not cause or lead to his injury. Accordingly, I dismissed his claims.

3. By the Costs Order Nisi, I ordered the applicant to pay the respondents’ costs for this action to be taxed, if not agreed, with counsel certificate. By virtue of Order 62, rule 28 of the Rules of the District Court, the costs payable by the applicant will be taxed on party-and-party basis. Orders and rules referred to in this Decision are Orders and rules of the Rules of the District Court unless otherwise specified.

4. The respondents took out a summons on 15 October 2013 (the “Summons”) pursuant to Order 22, rule 23 and Order 42, rule 5B(6) and the inherent jurisdiction of the court seeking to vary the Costs Order Nisi to provide that for the period after 19 August 2011, the applicant should pay the respondents’ costs of this action on indemnity basis with interest on such costs at 10% above the judgment rate. The respondents also sought costs for this application on indemnity basis.

5. I shall point out that unlike the Rules of the High Court, Order 42, rule 5B of the Rules of the District Court only has paragraphs (1) to (4) but does not have paragraph (6). I would like to take this opportunity to remind the practitioners that they shall not readily assume that the Rules of the District Court are identical to the Rules of the High Court. Nevertheless, the aforesaid error does not affect this application as I had made an order in my judgment to the effect of Order 42, rule 5B(6) of the Rules of the High Court for the parties to apply to vary the Costs Order Nisi within 14 days.

6. The applicant was legally aided in this action from 26 January 2010 until 20 July 2012 when his legal aid certificate was discharged. Accordingly, the Director of Legal Aid (the “DLA”) had interests in this application and sought leave to be heard in this application. The respondents did not object the DLA’s application. At the hearing on 30 October 2013, I granted leave for the DLA to participate in this application.

The application

7. The respondents’ application was premised on the ground that they had on 19 August 2011 made a sanctioned offer pursuant to Order 22 offering the applicant to forthwith discontinue the claims against the respondents with costs to the respondents, to be taxed if not agreed on party-and-party basis (the “Offer”). The Offer was not accepted by the applicant.

8. On 2 October 2013, I dismissed the applicant’s claims with costs as aforesaid. The respondents said that the applicant having failed to do better than the Offer, the sanction provisions of Order 22, rule 23 should apply.

The applicant’s case

9. Despite the discharge of his legal aid certificate on 20 July 2012, the applicant was legally represented at the trial. The applicant filed a notice to act in person on 8 October 2013 and was unrepresented when the respondents took out the Summons.

10. The applicant had not filed any affidavit in opposition to the respondents’ application but had attended the hearing on 30 October 2013.

11. The applicant said that he was not satisfied with the judgment and would appeal against the judgment. He said that he had no money to pay the respondents’ costs claim and asked the court to hold on this application pending his appeal.

The case of the DLA

12. Mr Chan, representing the DLA, submitted that one of the important features of a sanctioned offer was the consequence upon acceptance of the sanctioned offer. Order 22, rule 20(1) provided that where a defendant’s sanctioned offer to settle the whole claim was accepted without leave of the court, the plaintiff was entitled to his costs of the proceedings up to the date of serving of the notice of acceptance. In this case, the Offer required the applicant paying costs instead of receiving costs. Mr Chan submitted that the Offer did not constitute a valid sanctioned offer because even if the applicant accepted it, he would be deprived of his entitlement to costs as envisaged in Order 22, rule 20(1).

Discussion

13. The facts that the applicant would appeal against the judgment and that he had no money to pay the respondents’ costs claim are not grounds to resist this application of the respondents. In fact, if the applicant is going to appeal against the judgment, it is even more necessary to finalize the costs order of this court so that the same can also be dealt with at the appeal.

14. The Offer was contained in a letter dated 19 August 2011 from the respondents’ solicitors to the applicant’s then solicitors, Yeong & Co, and the DLA. The material parts of the letter read as follows:-

“Solely for the purpose of disposing of this matter in its entirety without wasting further time of the Respondents, we are instructed to put forward this one off offer to the Applicant.
By virtue of Order 22 rule 5(4) of the Rules of District Court, Cap 336 (“RDC”), the Respondents make this sanctioned offer that the Applicant do forthwith discontinue the claim against the Respondents with costs to the Respondents, to be taxed if not agreed on party-and-party basis.
By virtue of Order 22 rule 5(7) of the RDC, please be informed that after the expiry of 28 days from the date of the sanctioned offer herein, the Applicant may only accept the Respondents’ said offer if the parties agree on the liability for costs or the Court grants leave to accept it.”

15. There were no disputes that the Offer complied with the requirements of Order 22, rule 5 on form and content of sanctioned offer.

16. As the respondents relied on Order 22, rule 23 to make this application, it is necessary to set out the relevant parts of the aforesaid Order below:-

“(1) This rule applies where a plaintiff:-
(a) ...; or
(b) fails to obtain a judgment that is more advantageous than a defendant’s sanctioned offer.
(2) ...
(3) The Court may order the plaintiff to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.
(4) The Court may also order that the defendant is entitled to -
(a) his costs on the indemnity basis after the latest date on which the plaintiff could have accepted the payment or offer without requiring the leave of the Court; and
(b) interest on the costs referred to in paragraph (3) or subparagraph (a) at a rate not exceeding 10% above judgment rate.
(5) Where this rule applies, the Court shall make the orders referred to in paragraphs (2), (3) and (4) unless it considers it unjust to do so.
(6) In considering whether it would be unjust to make the orders referred to in paragraphs (2), (3) and (4), the Court shall take into account all the circumstances of the case including:-
(a) the terms of any sanctioned payment or sanctioned offer;
(b) the stage in the proceedings at which any sanctioned payment or sanctioned offer was made;
(c) the information available to the parties at the time when the sanctioned payment or sanctioned offer was made; and
(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the payment or offer to be made or evaluated.”

17. There were no disputes that the applicant failed to obtain a judgment that was more advantageous than the Offer. The issues to be determined are whether the Offer constituted a valid sanctioned offer. If so, whether it is unjust for the court to impose the contemplated sanctions in this case.

Whether the offer constituted a valid sanctioned offer

18. The DLA contended that the Offer had deprived the applicant of his entitlement to receive costs pursuant to Order 22, rule 20. Order 22, rule 20(1) provides that:-

“(1) Where a defendant’s sanctioned offer or sanctioned payment to settle the whole claim is accepted without requiring the leave of the Court, the plaintiff is entitled to his costs of the proceedings up to the date of serving notice of acceptance, unless the Court otherwise orders.”

19. Miss Kong, representing the respondents, submitted that the Offer was for the applicant to discontinue his claims and Order 62, rule 10(1) provided for a plaintiff who wholly discontinued his action to pay the defendant’s costs. Miss Kong submitted that the respondents would be entitled to their costs under Order 62, rule 10(1), if the applicant discontinued his claims pursuant to the Offer.

20. Order 62, rule 10(1) provides that:-

“(1) Where a plaintiff by notice in writing and without leave either wholly discontinues his action against any defendant or withdraws any particular claim made or question raised by him therein as against any defendant, the defendant may tax his costs of the action or his costs occasioned by the matter withdrawn, as the case may be, and, if the taxed costs are not paid within 4 days after taxation, may sign judgment for them.”

21. Order 62, rule 10(1) applies to case where a plaintiff may discontinue his action or withdraw part of his claims without leave. May the applicant discontinue this action without leave? Order 21, rule 2 provides that:-

“(1) Subject to paragraph (2A) [which does not concern this action] the plaintiff in an action begun by writ may, without the leave of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than 14 days after service of the defence on him or, if there are 2 or more defendants, of the defence last served, by serving a notice to that effect on the defendant concerned.
(3A) The plaintiff in an action begun by originating summons may, without the leave of the Court, discontinue the action or withdraw any particular question or claim in the originating summons, as against any or all of the defendants at any time not later than 14 days after service on him of the defendant’s affidavit evidence filed pursuant to Order 28, rule 1A(2) or, if there are 2 or more defendants, of such evidence last served, by serving a notice to that effect on the defendant concerned.”

22. This action is not an action commenced by writ or by originating summons and the respondents had served their Answer on 29 April 2010, ie more than one year before the respondents made the Offer. The applicant may not discontinue this action without leave. Order 62, rule 10(1) does not apply to this action.

23. Furthermore, if this action was discontinued pursuant to the Offer, it was not a discontinuance under Order 21 which triggered the operation of Order 62, rule 10(1). It would be a discontinuance under the Order 22 regime. This is recognized by Order 62, rule 10 when it provides in Order 62, rule 10(5) that:-

“(5) In the circumstances mentioned in this rule, Order 22, rules 20 and 21 and Order 25, rule 4(6) an order for costs shall be deemed to have been made to the effect described and, for the purposes of section 50 of the Ordinance, the order shall be deemed to have been entered up on the date on which the event which gave rise to the entitlements to costs occurred.”

24. Thus, it can be seen that costs entitlement pursuant to Order 22, rule 20 is not covered by Order 62, rule 10(1).

25. However, I do not agree that a sanctioned offer will be invalidated if it contains costs provisions different from those provided in Order 22, rule 20. There are no provisions in the Rules of the District Court which prohibit a sanctioned offer to deal with costs. Order 22, rule 5 in dealing with the “form and content of sanctioned offer” does not exclude costs as an element which may be included in a sanctioned offer. In fact, Order 22, rule 20 expressly provides for the court to make a different costs order. In sub-para 3 of para 22/2/A at p 489 of the Hong Kong CivilProcedure2013 Vol 1, the learned editors pointed out that “a sanctioned offer under O 22, rule 2(1) provides the defendant with a prima facie entitlement to an order that the Plaintiff pays all the post-offer costs … where the Plaintiff has failed to better the Defendant’s offer at trial.” (Emphasis added) … If a defendant makes a sanctioned offer containing different provisions as to costs to settle the action and the offer is accepted by the plaintiff, the aforesaid prima facie entitlement will be replaced by the parties’ agreement. I see no reason why the court will not give effect to the parties’ agreement by exercising its power under Order 22, rule 20(1).

26. In Chan Kwing Chiu and another v陳志球(transliterated as Chan Chi Kau) also known as Johnnie C K Chan (unrep, CACV 209/2012, 3 October 2013) a sanctioned offer on a “drop hands” basis with no order as to costs was made by the defendant to the plaintiffs in the proceedings in the Court of First Instance where there were claim and counterclaim. The sanctioned offer lapsed without being accepted. The plaintiffs failed in both the claim and the counterclaim and were ordered to pay costs of the defendant for both the claim and the counterclaim. As the plaintiffs had failed to do better than the sanctioned offer, Deputy High Court Judge M Chan (as she then was) awarded costs on indemnity basis for the post-offer costs and enhanced interest on such costs to the defendant.

27. The case went to the Court of Appeal when the Court of Appeal allowed the plaintiffs’ appeal in respect of the judgment on the counterclaim against them. The Court of Appeal held that the plaintiffs should pay 80% of the defendant’s costs in the court below up to the date when the sanctioned offer might be accepted without leave. However, the Court of Appeal did not disturb the sanctions on the post-offer costs imposed by the learned Deputy High Court Judge on the ground that even with the plaintiffs’ appeal to the judgment of the counterclaim being allowed, the plaintiffs still had not achieved anything better than the sanctioned offer. (See paras 102 to 105 of the Court of Appeal judgment)

28. The sanctioned offer made in the Chan Kwing Chiu case also contained costs provisions differed from Order 22, rule 20(1) of the Rules of the High Court (which is identical to Order 22, rule 20(1) of the Rules of the District Court). Both the learned Deputy High Court Judge and the Court of Appeal did not consider that such costs provisions would have the effect of invalidating an otherwise valid sanctioned offer. I reject Mr Chan’s contention that the Offer was not a valid sanctioned offer because of the costs proposal contained therein.

29. An offer qualifies as a sanctioned offer not because the offeror calls it a “sanctioned offer”. An offer is a sanctioned offer because it is made pursuant to Order 22, rule 2 which provides that:-

“Offer to settle with specified consequences (O 22, r 2)
2(1) A party to an action containing a money claim or a non-money claim or both arising from any cause or causes of action may make an offer to settle the whole claim, a part of it or any issue arising from it in accordance with this Order.
(3) An offer made under paragraph (1) has the consequences specified in rules 20, 21, 22, 23 and 24 (as may be applicable).
(4) Nothing in this Order prevents a party from making an offer to settle in whatever way he chooses, but if that offer is not made in accordance with this Order, it does not have the consequences specified in this Order, unless the Court so orders.”

30. The respondents sought to invoke the provisions of Order 22, rule 23. The prerequisite was that they had made an offer under Order 22, rule 2(1). Under Order 22, rule 2(1), the respondents had to make one of the following offers to the applicant:-

(1)   an offer to settle the whole claim of the applicant;
(2)   an offer to settle a part of the claim of the applicant; or
(3)   an offer to settle any issue arising from the claim of the applicant.

31. Miss Kong submitted that the Offer was an offer to settle the whole claim of the applicant. With respect, I disagree. The Offer was certainly an offer to dispose of the whole claim of the applicant but it was not an offer to “settle” the applicant’s claim.

32. Sanctioned offer is a new feature introduced to our litigation system by the Civil Justice Reform (the “CJR”) implemented on 2 April 2009. It was introduced by proposal 15 of the Interim Report and Consultation Paper for the CJR which read as follows:-

“Rules governing the making and costs consequences of offers of settlement and payments into court along the lines of Part 36 of the CPR [the Civil Procedure Rules 1998 enacted in England and Wales] should be adopted.”

33. The aforesaid proposal was adopted in Recommendation 38 of the Final Report for the CJR which read as follows:-

“Proposal 15 (for introducing sanctioned offers and payments along the lines of CPR 36) should be adopted as modified and supplemented by Recommendations 39 to 43.”

34. Recommendation 43 of the Final Report read as follows:-

“The rules should make it clear that a plaintiff may qualify for an award of additional interest along the lines of Part 36 where he makes a sanctioned offer which satisfies the prescribed requirements, but not otherwise.”

35. It can be seen that our system of sanctioned offer is modelled on the Part 36 offer of the 1998 English Civil Procedure Rules. In East West Corp v DKBS 1912 and AKTS Svendborg (No. 2) [2002] 2 Lloyd’s Rep 222 Thomas J considered that an offer from the plaintiff to settle for 100% of their claim was “no offer to settle in the ordinary sense of the word” (see para 15 of the judgment). His Lordship expressed in para 14 of the judgment at 225 his following observations in respect of the Part 36 offer:-

“the Part 36 offer is aimed at an offer to settle, that is to say a genuine offer to settle and not some tactical ploy for the purpose of advancing a claim under Part 36.21 [ie pre 6 April 2007 English Civil Procedure Rules dealing with costs and other consequences where claimant did better than he proposed in his Part 36 offer which provided for sanctions similar to Order 22, rule 23 of the Rules of the District Court in Hong Kong]. The purpose of the award of an enhanced rate of interest or indemnity costs is to encourage parties to make offers of settlement in the ordinary sense of that word.”

36. An offer requiring the opponent to pay 100% of the claim or to wholly discontinue the claim is “no offer to settle in the ordinary sense of the word”.

37. The English Court of Appeal expressed similar observations in Huck v Robson [2002] 3 All ER 263 when Jonathan Parker LJ stated at 275 in para 63 of the judgment that:-

“it is in my judgment implicit in r 36.21 that, consistently with the philosophy underlying Pt 36 (to which I have already referred), in order to qualify for the incentives provided by paras (2) and (3) of the rule, a claimant’s Pt 36 offer must represent at the very least a genuine and realistic attempt by the claimant to resolve the dispute by agreement. Such an offer is to be contrasted with one which creates no real opportunity for settlement but is merely a tactical step designed to secure the benefit of the incentives. That is not to say that the offer must be one which it would be unreasonable for the defendant to refuse; that would be too strict a test, and would introduce considerations of punishment and moral condemnation which (on the authority of Petrotrade Inc v Texaco Ltd [2001] 4 All ER 853, [2002] 1 WLR 947 and McPhilemy v Times Newspapers Ltd (No 2) [2001] 4 All ER 861, [2002] 1 WLR 934) are irrelevant in the context of para (3) of r 36.21. Indeed, the terms of the offer may reflect a degree of optimism and confidence on the part of the claimant/offeror. Provided only that the offer represents a genuine and realistic offer to resolve the dispute by agreement, it is for the claimant to decide at what level to pitch his offer. In some cases, an offer which allows only a small discount from 100% success on the claim may be a genuine and realistic offer; in other cases, it may not.”

38. Although Jonathan Parker LJ was the dissenting judge in the above case, his aforesaid view was shared by other Law Lords in that case. Tuckey LJ although he disagreed with the ruling of Jonathan Parker LJ, stated in para 71 of the judgment at 277 that:-

“I would however add that if it was self-evident that the offer made was merely a tactical step designed to secure the benefit of the incentives provided by the rule (eg an offer to settle for 99.9% of the full value of the claim) I would agree with Jonathan Parker LJ that the judge would have a discretion to refuse indemnity costs.”

39. The other majority judge Schiemann LJ also stated in para 81 of the judgment at 278 that:-

“Nevertheless, I accept, like my Lords, that circumstances can exist where, notwithstanding that a claimant has recovered in full after making a Pt 36 offer for marginally less, he will not be awarded costs on the indemnity basis. I do not consider that Pt 36 was intended to produce a situation in which a claimant was automatically entitled to costs on the indemnity basis provided only that he made an offer pursuant to r 36.10 in an amount marginally less than the claim.”

40. The difference between their Lordship in the above case was not in principle but in their views as to whether a 5% discount of the claim amount was a genuine or illusory settlement offer.

41. I am of the view that the Offer requiring the applicant to discontinue his claims and to pay the respondents’ costs was, in the words of Jonathan Parker LJ, “one which creates no real opportunity for settlement but is merely a tactical step designed to secure the benefit of the incentives”. It was not an offer “to settle in the ordinary sense of the word” and did not qualify as a sanctioned offer as set out in Order 22, rule 2.

42. If I were wrong in holding that the Offer was not a sanctioned offer, I would exercise my discretion under Order 22, rule 23(5) in this case not to impose the sanctions stipulated in Order 22, rule 23(4) after taking into account the terms of the Offer pursuant to O 22, rule 23(6)(a). I am of the view that the Offer went beyond an offer reflecting “a degree of optimism and confidence” on the part of the respondents. It was an attempt to seek judgment against the applicant without trial. Such offer was not a genuine and realistic offer to resolve the dispute by agreement but a tactical offer to secure indemnity costs and enhanced interest on the costs. Such offer was inconsistent with the underlying philosophy of the sanctioned offer scheme.

Other grounds

43. The respondents also cited the inherent jurisdiction of the court in the Summons.

44. As I do not accept that the Offer was “an offer to settle”, I shall consider whether other circumstances of this case justified an order on indemnity basis against the applicant. Costs are at the discretion of the court and the court in exercising its discretion shall take into account the matters referred to in Order 62, rule 5.

45. An order for costs on indemnity basis will be ordered if the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motives, or in an oppressive manner. (See Choy Yee Chun (The Representative of the estate of Chan Pui Yiu) v Bond Star Development Ltd [1997] HKLRD 1327 CA) It was not the respondents’ case that this action fell within any of the aforesaid categories. Of course, there may also be other circumstances which justify a costs order on indemnity basis.

46. However, I do not consider that the mere fact that the applicant had refused to accept the respondents’ invitation to surrender to a judgment without trial justified an order on indemnity basis against him.

47. The injury occurred to the applicant when he was working for the respondents at a construction site. Although the experts’ evidence, including the opinion of the applicant’s own expert, was not in the applicant’s favour, the applicant did produce some medical evidence, albeit not accepted by the court, in support of his case. “The usual practice of the court, in hostile litigation, is to order the costs be paid by the unsuccessful party to the successful party, and taxed as between party and party” (per Godfrey J (as he then was) in Overseas Trust Bank Ltd v Coopers & Lybrand (a firm) and Others and Peat, Marwick, Mitchell & Co (a firm) and Another [1991] 1 HKLR 177 at 182) I am of the view that the circumstances of this case do not justify a departure from the usual costs order on party-and-party basis.

Order

48. In the premise, I dismiss the Summons and make the Costs Order Nisi absolute.

49. Mr Chan informed the court at the hearing that the DLA would not seek costs against the respondents in the event that their application should fail. The applicant was not legally represented at the hearing of this application and his submissions made at the hearing did not assist the court in determining this application. In such case, a fair costs order for this application is no order as to costs. I so order.

( R Lai )
Deputy District Judge

The applicant was not represented and appeared in person

Miss Kong Kin Man Stella, of Cheng Yeung & Co, for the 1^st and the 2^nd respondents

Mr Chan Wan Kit Francis, Acting Assistant Principal Legal Aid Counsel, for the Director of Legal Aid

89418-EN-2013-10-02

GILL AJMER SINGH v. WAH HING SCAFFOLDING ENGINEERING LTD AND ANOTHER

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DCEC 348/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 348 OF 2010

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

IN THE MATTER OF AN APPLICATION BETWEEN:

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

	GILL AJMER SINGH	Applicant
	and
	WAH HING SCAFFOLDING ENGINEERING LIMITED	1st Respondent
	GAMMON CONSTRUCTION LIMITED	2nd Respondent

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Before: Deputy District Judge R Lai in Court

Date of Hearing: 15 to 16 July 2013 and 2 August 2013

Date of Judgment: 2 October 2013

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JUDGMENT

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Introduction

1. This is an employees’ compensation claim under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (the “Ordinance”).

2. The applicant was employed by the 1^st respondent as a general worker to work at a construction site at the University of Hong Kong (the “Site”). The 2^nd respondent was the main contractor of the works at the Site.

3. The applicant’s case was that on 20 August 2008 when he was working for the 1^st respondent at the Site, he was hit by an unknown object and sustained injury, ie acute retinal detachment, to his left eye (the “Injury”). The Injury was arising out of and in the course of his employment with the 1^st respondent.

4. The respondents disputed that the applicant had encountered any accident on 20 August 2008 and that the Injury was caused by the alleged accident or arising out of his employment with the 1^st respondent.

5. The applicant filed the Application herein on 7 April 2010 and amended the same on 16 April 2013.

6. The respondents filed their Answer on 29 April 2010 and amended the same on 3 May 2013.

7. On 18 April 2011, the court upon the parties’ consent, ordered that the medical evidence was to be limited to one ophthalmologic expert for each party, namely Dr Alexis Yu for the applicant and Dr Paul Cheung for the respondents (jointly the “Experts”). Their joint report was to be adduced without oral evidence.

8. On 7 June 2012, the court further ordered that the reports of government hospitals as to the treatment and care of the applicant were to be adduced as agreed evidence without calling the makers thereof.

9. There were no disputes that the applicant was sent to the Queen Mary Hospital (“QMH”) in the afternoon of 20 August 2008 during the applicant’s normal working hours at about 4:30 p.m. and was diagnosed with the Injury. There were also no disputes that the applicant was under the 1^st respondent’s employment on 20 August 2008. However, there were disputes as to the earnings of the applicant at the time of the alleged accident and when the applicant started his employment with the 1^st respondent. Of course, the cause of the Injury was also under dispute.

10. The Employees’ Compensation (Ordinary Assessment) Board (the “Board”) issued its certificate of assessment (“Form 7”) on 21 January 2011 assessed the applicant’s permanent loss of earning capacity at 40% and assessed his period of absence from duty necessitated by the Injury at 180.50 days. Both the applicant and the respondents lodged appeal against the assessment by way of notices of appeal dated 15 February 2011 and 28 January 2011 respectively.

The case and evidence of the applicant

11. In the Applicant, the applicant pleaded at paragraph 3(3)(ii) that:-

“At or about 1:20 p.m. on 20 August 2008, the Applicant was the employee of the 1^st Respondent and deployed to perform duty at the Site. When the applicant and other 4 co-workers were dismantling the scaffolding at the site, he was standing on a steel platform and was instructed to pull out the bamboo from the scaffolding of which the wires / ropes fixing them were already cut. At the material time when the Applicant was pulling out one of the bamboo shoots, another bamboo shoot suddenly fell toward the Applicant and hit his left eye.”

12. In the Amended Application filed on 16 April 2013, the applicant amended paragraph 3(3)(ii) and pleaded as follows:-

“At or about 1:20 p.m. on 20 August 2008, the Applicant was the employee of the 1^st Respondent and deployed to perform duty at the Site. The Applicant was assigned to pull out the bamboos from the scaffolding of which the nylon strips were being cut off by other 2 co-workers. While the Applicant was pulling one bamboo pole, he noticed that the bamboo pole was stuck as the nylon strips were not cut properly. The co-workers who were dismantling or cutting the nylon strips asked the Applicant to use some force to pull it. The Applicant used some force, suddenly, unknown object hit on his left eye.”

13. The applicant had testified at the trial and called Mr Rupinder Paul Singh (“RPS”) to testify as his witness.

14. The applicant had made a witness statement dated 24 August 2010 and a supplemental witness statement dated 26 April 2013. He adopted both of his aforesaid witness statements as his evidence-in-chief at the trial.

15. The applicant stated in his witness statement and supplemental witness statement that he was born on 7 December 1976 in India and came to Hong Kong in 2004. He was introduced by the Labour Department to work for the 1^st respondent since 2007 at the daily wages of $500.00 with lunch provided. He stated that he worked 26 days per month on average. The 1^st respondent would pay him cash or deposit his wages into his bank account. The applicant said that he had not signed any receipt for his wages and denied that the wages receipts produced by the 1^st respondent were signed by him.

16. He described the happening of the Injury in his witness statement as follows:-

“3. At or about 1:20 p.m. on 20 August 2008, I was the employee of Wah Hing [the 1^st respondent] and deployed to perform duty at the Site. When I and other 4 co-workers were dismantling the scaffolding at the site, I was standing on a steel platform and was instructed to pull out the bamboo from the scaffolding of which the wires / ropes fixing them were already cut. When I was pulling out one of the bamboo shoots, another bamboo shoot suddenly fell toward me and hit my left eye.”

17. In his supplemental witness statement, the applicant described the happening of the Injury as follows:-

“7. At or about 1:20 p.m. on 20 August 2008, I was the employee of Wah Hing Scaffolding Engineering Limited [the 1^st respondent] and deployed to perform duty at the Site. I was assigned to pull out the bamboos from the scaffolding of which the nylon strips were being cut off by other 2 co-workers. While I was pulling one bamboo pole, I noticed that the bamboo pole was stuck as the nylon strips were not cut off properly. The co-workers who were dismantling or cutting the nylon strips asked me to use some force to pull it. I used some force, suddenly; unknown object hit on my left eye.”

18. The applicant said that he reported the incident to the 2^nd respondent’s safety officer who rinsed his left eye with clean water. After that, he returned to work but still felt uncomfortable with his left eye. He told the safety officer and was sent to QMH for medical treatment.

19. RPS had signed a witness statement dated 18 September 2012. RPS adopted his witness statement as his evidence-in-chief at the trial.

20. In his witness statement, RPS stated that he met the applicant at about 7 pm on 20 August 2008. He described his meeting with the applicant in that evening as follows:-

“2. I saw him [the applicant] with left eye in dark red and swelling. I asked him what happen to him and upon which he replied that he has been struck with a hard solid wood like object similar to bamboo. I felt sad for him.
3. I also asked him how it happened. Then Gill replied that the accident happen at his work while stacking a hard solid wood like object similar to bamboo at the site, i.e. University of Hong Kong, Pok Fu Lam Road, Hong Kong.”

21. At the trial, RPS said that the date he met the applicant as stated in his witness statement was from his recollection. He could only recalled that it was sometime in August 2008. RPS stated that he had upon the applicant’s request called the applicant’s employer called “Ah Wah”. The applicant’s employer told RPS that he could pay some money to the applicant if the applicant would not proceed with the case.

The respondents’ case and evidence

22. The respondents had called the shareholder and director of the 1^st respondent, Mr Mok Lai Wah (“MLW”), to testify at the trial. MLW had signed a witness statement dated 15 August 2010 and a supplemental witness statement dated 18 May 2013. He adopted his witness statement and supplemental witness statement as his evidence-in-chief at the trial.

23. MLW stated that he employed the applicant as a general worker at the daily wages of $500.00 since April 2008. He agreed that lunch was provided by the 1^st respondent to the applicant. He stated that the applicant earned $5,500.00 to $9,500.00 in each month for the four months from April to July 2008. He produced wages receipts for these months said to have been signed by the applicant. (Exhibits D1 and D2) He said that the receipts were signed by the applicant before him.

24. MLW agreed that he was not at the Site when the applicant sustained the Injury. He was not aware of the applicant suffering any alleged injury until the 1^st respondent received letter from the Labour Department. He denied that he had spoken with RPS over the phone or had offered any payment to the applicant.

25. The respondents produced surveillance videos showing the applicant driving motor cycle and light goods vehicle and working in a fish market in September 2012, March and April 2013.

Medical evidence

26. When the applicant was sent to QMH on 20 August 2008, he was attended by Dr Ng Pui Lok of the Accident & Emergency Department (“A&E”). Dr Ng recorded that the applicant complained of sudden onset of left eye decrease vision on the day of attendance. Retinal detachment was detected at his left eye. This case was classified in the medical records of A&E as “non-traumatic”. (p 187 of the trial bundle) Dr Ng referred the applicant to the eye clinic of QMH for further treatment.

27. The applicant was diagnosed to be suffering from acute rhegmatogenous retinal detachment with atrophic round holes and macular involvement in his left eye and chronic shallow retinal detachment in his right eye.

28. The applicant was admitted to the Department of Ophthalmology of QMH on 31 August 2008 and undergone operation on 1 September 2008 for the retinal detachment in his left eye. At the same time encircling and cryotherapy was performed for the retinal detachment in his right eye. The applicant was discharged on 4 September 2008.

29. On subsequent follow-up assessment on 3 October 2008, there was recurrence of retinal detachment in his left eye. He was admitted to QMH again from 26 to 31 October 2008 for another operation on his left eye.

30. The applicant was examined by the Experts on 27 June 2011.

31. The Experts issued a joint report dated 9 August 2011. The applicant told the Experts that he sustained injuries while he was working on 20 August 2008. The accident happened while he was dismantling the scaffolding. As he was pulling out the bamboo shoots/wooden plank, another bamboo shoots/wooden plank fell down and hit him on his left eye. He noticed pain and watering from his left eye and also blurring of vision in his left eye.

32. The applicant complained to the Experts of blurring of vision, tiredness and pain in his left eye.

33. The Experts noted that the visual acuity in the applicant’s left eye gradually improved to 75% of normal level after the second operation for his left eye was performed. However, the applicant developed cataract in his left eye in January 2010.

34. Examination by the Experts showed that the retinas were successfully attached. The visual acuity of the applicant’s left eye was very poor but could be corrected with lens to 50% impairment in visual acuity. The visual impairment of his right eye was 20% which could be corrected with lens to 2.5% impairment. There was no cataract in the applicant’s right eye but there was cataract in his left eye with high myopia of 8.50 dioptres. The Experts concluded that the significant blurring of vision in the applicant’s left eye was caused by the cataract and high myopia. After removal of the cataract to his left eye, the Experts expected that the best corrected visual acuity of the applicant’s left eye could be improved to 20% visual impairment.

35. The Experts estimated the loss of earning capacity of the applicant due to the visual impairment in his left eye was 25% at the date of examination. After successful cataract operation, this should be adjusted to be about 10%.

36. The Experts were of the view that after successful cataract extraction surgery, the applicant should be capable of returning to his pre-accident operation.

37. The Experts opined that the retinal detachment of the applicant was due to his own inherent ailment and was not related to the accident alleged by the applicant. The Experts were of the view that this was not a case of traumatic retinal detachment.

38. The applicant underwent operation in India on 17 November 2012 for the cataract in his left eye.

Discussion

39. The main issues in dispute in this case are whether there was an accident as alleged by the applicant occurred. If so, whether the Injury was caused by such accident. If not, whether the Injury was arising out of the applicant’s employment with the 1^st respondent. After the issue of liability is determined, the court will then deal with the issues on quantum which include the parties’ appeal against the assessment of the Board and the monthly income of the applicant at the time of the alleged accident.

Did the alleged accident occur?

40. The applicant alleged that an accident occurred on 20 August 2008 causing the Injury. The burden was on the applicant to prove on balance of probabilities that the accident did occur.

41. The applicant’s case was that he was hit by some object at the left eye on 20 August 2008. What object had hit him was unclear. According to RPS, the applicant told him on 20 August 2008 that the applicant was hit by a hard solid wood like object similar to bamboo. In the notification of accident dated 17 October 2008 submitted to the Labour Department by the applicant, he described that it was a loose piece of log hit logs to his left eye and some sands and dirt went inside his eye (p 85 of the trial bundle). In the Application dated 7 April 2010, the applicant pleaded that he was hit by a bamboo shoot. This was confirmed in the applicant’s witness statement dated 24 August 2010. In June 2011 when the applicant was examined by the Experts, he told the Experts that he was hit by a bamboo shoots/wooden plank. In November 2012, when the applicant received treatment for the cataract in his left eye in India, he told the doctor that he suffered from a bamboo stick injury while working in Hong Kong. In the Amended Application dated 16 April 2013, the applicant pleaded that it was an unknown object which hit him. This version was confirmed in the applicant’s supplemental witness statement dated 26 April 2013.

42. In the trial bundle, there was a copy of Form 2 which was a form to be used by an employer to report work injury of his employee to the Labour Department. The Form 2 in this case stated that: “The I/P claimed some foregin [sic] object got inside his left eye whilst he was working on site”. However, the Form 2 was undated and unsigned (pp 113-117 of the trial bundle). It was not clear who prepared this Form 2. In section F of the Form 2, it stated that the basic salary/wages of the applicant was $0. This cannot be right. MLW stated at the trial that he had not previously seen this Form 2. In the premise, I give no weight to this piece of evidence.

43. The applicant told the Experts that he had told his treating doctors at QMH that he had trauma to his left eye. However, the medical notes kept by A&E of QMH on treatments of the applicant on 20 August 2008 classified the applicant’s case as “non-traumatic” (p 187 of the trial bundle). Dr Ng, the doctor who treated the applicant on 20 August 2008 at A&E of QMH, had issued two reports dated 17 October 2008 and 25 February 2010 (pp 60 and 67 of the trial bundle). In both reports, Dr Ng stated that the applicant complained of decrease of left eye vision on the day of attendance. The reports did not mention that the applicant had told Dr Ng that he had been hit by any object on that day.

44. Dr Fong Hon Chi, Angie and Dr Li Kai Wang, Kenneth both of the eye clinic of QMH made the following notes on treatments to the applicant on 21 August 2008 (pp 191 and 192):-

“noted painless blurring of vision 2/7 with L nasal field loss.
No history of trauma”

45. In the consultation note for consultation on 3 October 2008, Dr Li made the following records (p 203 of the trial bundle):-

“Now claimed to have trauma on L temporal area on 20/8/08
Not mentioned at A&E and at initial FU at Eye Clinic
Imp: Unlikely to be related to trauma”

46. In the consultation note made by Dr Yeung Chun Chun, Jane for consultation on 5 January 2009, Dr Yeung recorded that (p 217 of the trial bundle):-

“[patient today gave history of blunt trauma at work a few minutes prior to LE vision started to deteriorate]”

47. From the above, it can be seen that the applicant’s versions on what had hit him on 20 August 2008 had been changed from “hard solid wood like object similar to bamboo” in August 2008, to “loges” in October 2008, to “bamboo shoot” in April 2010, to “bamboo shoots/wooden plank” in June 2011, to “bamboo stick” in November 2012, and finally to “unknown object” in April 2013. I accept the submission of Mr McGowan, counsel for the applicant, that this was not material inconsistency. It might be due to the use of a language which the applicant was not familiar with.

48. However, there was no mention of any trauma reported by the applicant in the medical notes until 3 October 2008. At the trial, the applicant maintained that he had told the doctors prior to 3 October 2008 that he met with an accident to his left eye at work. Mr McGowan suggested that this was due to poor English of the applicant and lack of interpretation which caused ineffective communication between the applicant and the doctors. This was contradicted by the applicant’s evidence that he had been telling the ophthalmologists at the early consultations that he had met with an accident to his left eye at work but was told by the doctors “treatment first”. If the applicant was telling the truth, it showed that the doctors understood him. If that was the case, Dr Li, who was the applicant’s main treating doctor at QMH since 21 August would not have written the notes set out in para 45 above on 3 October 2008.

49. I do not accept the said suggestion of Mr McGowan. Prior to 3 October 2008, the applicant had been treated by Dr Ng on 20 August 2008, by Dr Fong and Dr Li together on 21 August 2008, by Dr Li on 27 August 2008, 12 September 2008, 18 September 2008 and 26 September 2008. He was admitted to and stayed in QMH from 31 August 2008 to 4 September 2008 (pp 186-202 of the trial bundle). If the applicant found that the medical staff of QMH did not fully understand him, he had ample opportunities to seek assistance on interpretation. Dr Li could understand the applicant’s claim of trauma on 3 October 2008. There were no reasons why Dr Li could not understand the same claim on 21 August 2008 if the applicant had made such claim on that day. It could also be seen from the consultation note of Dr Yeung when she attended the applicant on 5 January 2009 that the applicant had reported “history of blunt trauma at work” to her. There were no difficulties for Dr Yeung to understand the applicant.

50. In fact, all doctors who treated the applicant on 20 or 21 August 2008 had paid specific attention to the issue of trauma. Dr Ng classified the applicant’s case as “non-traumatic” in the records of A&E of QMH. Dr Fong and Dr Li recorded “no history of trauma” in their consultation notes.

51. In the witness statement of RPS, he stated that he saw the applicant on 20 August 2008 with “left eye in dark red and swelling”. This was not mentioned in the applicant’s witness statement or supplemental witness statement. I do not accept that if the applicant’s left eye was bruising and swelling in the evening of 20 August 2008, it would escape the attention of three doctors, ie Dr Ng, Dr Fong and Dr Li, who had attended the applicant on 20 and 21 August 2008. None of the doctors mentioned swelling or bruising of the applicant’s left eye in their contemporaneous notes or records.

52. I also noted that the records kept by A&E of QMH on the applicant’s attendance on 20 August 2008 had the following records:-

“? FB over Ⓛ eye
today c/o ↓ vision
pain +”

53. The above suggested that the applicant had told the medical staff of QMH that he suspected foreign body got into his left eye. The medical staff of QMH had no difficulties in understanding the applicant on 20 August 2008. But there was no mention of any claim of trauma in the said records. Instead, the box “Non-Traumatic” therein was checked as stated above. I find that the applicant has failed to prove on balance of probabilities that he had told the doctors of QMH prior to 3 October 2008 of the alleged accident. I find that the applicant had only told the medical staff of QMH that he suspected that foreign body had gone into his left eye.

54. If the alleged accident had occurred, the applicant would not have missed to tell the doctors who treated him on 20 or 21 August 2008. If the applicant had bruising and swelling at his left eye, the treating doctors would have noticed that. I find that the applicant has failed to prove on balance of probabilities that an accident as alleged had occurred on 20 August 2008.

Did the alleged accident cause the injury?

55. If I were wrong in holding that the alleged accident did not occur on 20 August 2008, I will find that the alleged accident, if occurred, did not cause the Injury.

56. The diagnosis of the treating doctors was that the Injury was unlikely to be related to trauma (pp 63, 64 and 203 of the trial bundle).

57. In a medical progress report made by a Dr Ko dated 27 April 2009, Dr Ko had recorded his following medical assessment (p 221 of the trial bundle):-

“*The clinical condition is more compatible with pre-existing retinal detachment due to underlying retinal degeneration.”

58. Experts of both parties also opined that the Injury was not related to the alleged accident. In their joint report, the Experts explained that eye trauma could cause horseshoe tears, giant tears and retinal dialysis but not small round retinal holes which was exactly the cause of the Injury sustained by the applicant. They also explained that traumatic retinal detachment usually took several days to develop but the applicant was diagnosed of the Injury within hours of the alleged accident.

59. Mr McGowan referred to a report dated 27 March 2009 issued by Dr Leung Tai Shing, Alfred of the Eye Centre of Hong Kong Baptist Hospital which stated that the applicant “probably suffered from bilateral retinal detachment from possibly alleged injury” (pp 61-62 of the trial bundle). Dr Leung used the words “probably” and “possibly”. He did not elaborate his view and provided no explanation for his said view. Dr Leung attended the applicant once on 9 October 2008 after the applicant had made the first claim of trauma to Dr Li on 3 October 2008. No direction had been obtained by the applicant to adduce this report of Dr Leung as expert evidence. Furthermore, Dr Leung had qualified his report by stating that: “I am supplying information on the only day (9 October 2008) which I had seen this patient [the applicant]”. Dr Leung asked the readers of his report to contact the Ophthalmology Department in QMH for detailed information regarding the history and cause of injury for the applicant’s alleged eye injury. I do not see that this report of Dr Leung proved that the Injury was caused by the alleged accident.

60. Mr McGowan further referred me to a letter dated 17 November 2012 signed by Dr Rohtas Singla of Singla Nursing & Eye Hospital in India. (pp 68-69 of the trial bundle) The applicant had received operation in this hospital for the cataract in his left eye. In the said letter, Dr Singla expressed his opinion that the Injury was caused to the applicant due to his being hit by the bamboo stick told by the applicant. Again, no expert direction had been obtained by the applicant to adduce the opinion of Dr Singla as evidence and the qualification of Dr Singla was unknown to this court. Other than the report from the Experts which was referred to in the letter, it was unclear what information had been made available to Dr Singla before he wrote the said letter. In the said letter Dr Singla stated that he had read the reports prepared by the Experts but he had not mentioned any of the medical reports and notes of the treating doctors. Furthermore, Dr Singla had not attended the trial to answer questions on his said opinion which was differed from that of the treating doctors and the Experts. I do not accept the opinion of Dr Singla.

61. Although the applicant had told the medical staff of QMH that he suspected that foreign body had gone into his left eye, no medical evidence had been adduced to show any causal relation between the Injury and the foreign body which the applicant had suspected to have gone into his left eye on 20 August 2008. Furthermore, it is also not the pleaded case of the applicant that the Injury was caused by such foreign body.

62. I accept the opinion of the Experts and find that even if the accident as alleged by the applicant had occurred, it did not cause or lead to the Injury.

Was the injury arising out of the employment with the 1^st respondent?

63. Section 5(4)(a) of the Ordinance provides that:-

“(4) For the purposes of this Ordinance -

(a) An accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment;”

64. If the alleged accident did occur, I agree that it would be an accident arising out of and in the course of the applicant’s employment with the 1^st respondent. However, as I have found that the alleged accident did not occur and there was medical evidence to the contrary, section 5(4)(a) does not assist the applicant.

65. Mr McGowan put forward the proposition that even if the alleged accident did not occur, the Injury might still be arising out of the employment with the 1^st respondent. He submitted that if an “inherent ailment” was accelerated or exacerbated ie “triggered” by stresses and strains of work, then it could become an “accident”. He further submitted that the applicant’s employment with the 1^st respondent required him to engage in heavy and continuous labour at height, lifting and moving heavy objects up to and above 30 kg each. He referred to an article entitled “Occupational Lifting Tasks and Retinal Detachment in Non-Myopics and Myopics: Extended Analysis of a Case-Control Study” (the “Article”) downloaded from internet to submit that research had demonstrated that there was a risk that the applicant’s work might accelerate or contribute to his retinal detachment. He submitted that on balance of probabilities, there was a causal link between the applicant’s work and the Injury ie the work was a material cause. Mr McGowan referred to Lee Fuh v Ming Hing Construction Co [1991] HKDCLR 105 to submit that the court should apply common sense approach in determining the issue of causation.

66. I agree that the Injury being “an unlooked-for mishap or an untoward event which is not expected or designed” may be regarded as an accident for the purpose of section 5(1) of the Ordinance. (see Fenton v Thorley & Co Ltd [1903] AC 443) It was held in the Lee Fuh case that it was for the court to decide whether there was a sufficient causal connection between the employment and the accident causing death (in our case the Injury). If the opinions of expert medical witnesses differ on the question of causation, the court should apply common sense to resolve the differences.

67. In this case, the opinions of the Experts did not differ on the question of causation. I bear in mind that “causation is essentially a matter for the judge not for the doctors. It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it” (per Hunter JA in Ocean Tramping Co Ltd v Lee Kin-kai [1991] 2 HKLR 232 at 235 I to J). I accept the following conclusion of the Experts as stated in their joint report:-

“Mr. Gill [the applicant] suffered from retinal detachment in both his eyes on 20^th August 2008. This was due to his own inherent ailment and was not related to the alleged accident.”

68. From the joint report of the Experts, we can see that there are different types of retinal detachment. The Article was a study on one aspect of retinal detachment. Without assistance from medical experts, the court has to take the Article with caution. As the title suggested, it was an extended analysis of a case-control study. The Article also stated that the study was subjected to limitations. The conclusion of the study was that: “These results reinforce the hypothesis that heavy occupational lifting maybe a relevant risk factor for retinal detachment.” (emphasis added) Without the assistance of medical experts, the court is uncertain as to the extent of relevancy of the Article to the type of retinal detachment suffered by the applicant. The court is in no position to assess the reliability and limitations of the study subject of the Article. Suffice it to say that the conclusion of the study is not without uncertainty. I place little weight to the Article and do not consider that it assists the applicant’s case.

69. The contention put forward by Mr McGowan was not the pleaded case of the applicant and was mere speculation. There was no evidence, factual or medical, to show sufficient and relevant connection between the applicant’s work and the Injury. In para 7(b) of their joint report, the Experts stated that:-

“(b) Retinal detachment due to small round holes often stops progressing altogether, leading to a pigmented tide mark at its edge. This is what happened to Mr. Gill’s [the applicant] right eye. Occasionally, the holes do progress to total or subtotal detachment, this is what happened to his left eye.”

70. In respect of the aforesaid opinion of the Experts, Mr McGowan advanced the following submission:-

“It was the experts’ opinion at b) that the “small holes” in the Applicant’s left eye progresses to retinal detachment. This conclusion of spontaneous progression is premised on the erratic medical record (and the regrettable failure by the experts to consider the Triage notes) that there was no history of trauma.”

71. The “Triage notes” referred to by Mr McGowan was part of the Accident & Emergency Record of QMH on attendance of the applicant on 20 August 2008 (p 186 of the trial bundle). This document had been considered by the Experts before they issued their joint report. It was listed as document (14) of the documents accessed to by the Experts. In fact, the Experts had made specific reference to the content of this document in page 4 of their report (p 73 of the trial bundle). To say the Experts, two experienced specialists in ophthalmology, had failed to consider part of a medical record referred to in their report is speculative and unfair to the Experts.

72. As per Lord Loreburn in Clover, Clayton & Co Limited v Hughes [1910] AC 242 at 245:-

“It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened, and if the accident is one of the contributing causes without which the injury which actually followed would not have followed.”

73. However, in this case, there was no suggestion that the applicant’s work had or might have contributed to or accelerated the applicant’s retinal detachment occurred on 20 August 2008. The diagnosis of Dr Ko and the opinions of the Experts were all to the contrary. I reject the said contention of Mr McGowan.

74. I find that the Injury suffered by the applicant was not arising out of his employment with the 1^st respondent.

Conclusion on liability

75. After considering all the evidence, I find that the applicant failed to prove on balance of probabilities that the alleged accident occurred. I also find that in any event the Injury was not caused by the alleged accident and it was not arising out of the applicant’s employment with the 1^st respondent.

76. In the premise, liability is not established and compensation is not payable by the respondents to the applicant. I dismiss this application of the applicant.

Quantum

77. For completeness, I also consider the question of quantum should the respondents be held liable to the applicant’s claims.

Appeal against the Form 7

78. The Board assessed that the Injury had resulted in the applicant unable to work for 180.50 days and had caused 40% permanent loss of earning capacity to the applicant (p 223 of the trial bundle).

79. Both the applicant and the respondents appealed against the assessment of the Board.

80. The Experts were of the view that the sick leave granted to the applicant from 20 August 2008 to 13 February 2009 and thereafter intermittent sick leave up to 29 November 2010 was appropriate for the applicant’s condition.

81. Section 10(2) of the Ordinance provides that:-

“(2) For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

82. The periods of absence from work assessed by the Board were supported by certificates issued by registered medical practitioners. In the absence of evidence of fraud, the presumption stipulated in section 10(2) will not be rebutted (see Sin Fu Yau v Wong Po Kee Ltd [2007] 1 HKLRD 159 and Cheung Wan Lun v Hop Hing Construction & Engineering (H K) Company & Anor (unrep, DCEC 560/2009, 28 April 2011, Deputy District Judge Wilson Chan (as he then was)).

83. No evidence had been adduced to show that such assessment of the Board was wrong. Although further sick leave had been granted to the applicant after 6 August 2010 (pp 249-256 of the trial bundle), it is likely that it was related to the cataract developed in January 2010. I see no ground to disturb this assessment of the Board on the period of total temporary incapacity caused by the Injury to the applicant.

84. After examining the applicant, The Experts made the following estimation:-

“our estimation of his [the applicant] loss of earning capacity due to the visual impairment in his left eye is 25% at this stage. However, after successful cataract operation, this should be adjusted to be about 10%.”

85. The applicant was examined by the Experts on 27 June 2011. He had since received operation on 17 November 2012 for the cataract in his left eye. Nothing suggested that the cataract operation was not a successful one.

86. During the trial, I had watched extracts of the surveillance videos taken in September 2012, March and April 2013 on the applicant. The videos showed that the applicant could drive motor cycle and light goods vehicle in early morning at about 5 am, when it was still dark, without any apparent difficulties. He could help to load and unload fishes in water, which should be of considerable weight, in the same way as his co-workers. There was no indication of his activities being hindered or restricted by any problems with his eyes. Such evidence supported the opinion of the Experts.

87. The Injury occurred in August 2008. All operations to treat the Injury had completed by October 2008. The applicant was found to have early cataract in his left eye in January 2010, ie more than 14 months after the Injury was treated. It was not suggested that the development of cataract in the applicant’s left eye was related in any ways to the Injury. In such case, the respondents should not be held liable for the loss of earning capacity caused to the applicant by the cataract of his left eye. I accept the estimate of the Experts and find that the Injury had caused 10% of permanently loss of earning capacity to the applicant. I dismiss the applicant’s appeal and allow the respondents’ appeal on the assessment of the Board on permanently loss of earning capacity to the applicant caused by the Injury and adjust the assessment of such loss from 40% to 10%.

The applicant’s monthly income at the time of the alleged accident

88. The applicant’s case was that at the time of the alleged accident, he worked for the 1^st respondent at the daily wages of $500.00. MLW agreed in his witness statement that the applicant was employed by the 1^st respondent at the daily wages of $500.00. However, he produced wages receipts said to have been signed by the applicant showing that the daily wages of the applicant was $380.00 or $400.00 at different months. There were no disputes that lunch was provided by the 1^st respondent to the applicant.

89. Section 11(1) of the Ordinance provides that:-

“(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be 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 for any lesser period during which he has been employed by the same employer,
whichever calculation is more favourable to the employee.”

90. In the Application, the applicant pleaded that his monthly earning for the month immediately preceding the alleged accident was $12,000.00 and it was the same on average during the 12 months prior to the accident. The applicant’s case was that he had been employed by the 1^st respondent since 2007. He stated in his supplemental witness statement that his wages were paid to him either by cash or deposit to his bank account. However, the applicant did not tell the court his actual earnings when he was employed by the 1^st respondent, not even for the month immediately preceding the alleged accident. He also did not produce any records of his bank account showing deposit of wages to his account. Instead, the applicant produced documents on his earnings relating to the period from 1 April 2005 to 31 March 2006 which showed that he worked for another company at the daily wages of $350.00 (pp 183-185 of the trial bundle). Such information was of no assistance to this court in determining the applicant’s monthly income at the time of the alleged accident. At the trial, the applicant only said that he had worked 25 days for the 1^st respondent in a month and that he might be required to work even on Sundays.

91. The 1^st respondent’s case was that the applicant was employed by the 1^st respondent since April 2008. His average monthly earnings from April to July 2008 was $7,125.00 and his earnings for July 2008 (ie the month preceding the alleged accident) was $8,000.00 (p 1 of the trial bundle).

92. The 1^st respondent produced four wages receipts said to have been signed by the applicant for the period from April to July 2008. The applicant denied that he had signed these receipts.

93. MLW said that the applicant signed these receipts before him once every two months. The signatures on the receipts showed the word “Sing” which was different from the applicant’s surname “Singh”. It seemed that they were the applicant’s surname spelt phonetically. The signatures on the receipts were very different from signatures of the applicant appearing on all other documents produced in these proceedings, including:-

(1) the employment contract dated 18 August 2005; (p 82 of the trial bundle)
(2) the notification of accident dated 17 October 2008; (p 86 of the trial bundle)
(3) the applicant’s witness statement dated 24 August 2010;
(4) the affirmation dated 5 November 2012; (p 128 of the trial bundle)
(5) a letter written by the applicant and submitted to this court on 11 December 2012; (p 112 of the trial bundle)
(6) the applicant’s supplemental witness statement dated 26 April 2013; and
(7) the statement of truth dated 26 April 2013.

94. The above documents were signed by the applicant from 2005 to 2013. One of the documents was signed in October 2008, ie about the same time when the receipts were alleged to have been signed by the applicant. The signatures thereon were very different from the signatures appearing on the receipts.

95. Further, the receipts showed that the daily wages of the applicant were $380.00 or $400.00. This was different from what was stated in the witness statement of MLW. MLW explained that he had mistakenly stated in his witness statement that the applicant’s daily wages were $500.00. MLW’s witness statement was prepared by his legal representatives who should have taken instructions from him before they prepared the same. MLW’s witness statement was not a lengthy document. It was a two pages document consisted of seven short paragraphs in Chinese. The earnings of the applicant was the main feature of the witness statement. I do not accept that MLW would make mistake on such simple and crucial point of his evidence.

96. Furthermore, the wages receipts for the months stated that in May and June 2008 the applicant worked 14.50 days each month at the daily wages of $380.00. The earning of the applicant in each of these months should be $5,510.00 instead of $5,500.00 as stated on the wages receipts concerned. MLW did not provide any explanation to these discrepancies. I do not think that a worker working for a daily wages of $380.00 would agree to round-down his hard earned wages.

97. I find that the respondents have failed to prove on balance of probabilities that these receipts were signed by the applicant.

98. I find that the applicant was employed by the 1^st respondent at the daily wages of $500.00 at the time of the alleged accident.

99. There were no disputes that lunch was provided by the 1^st respondent to the applicant on top of his daily wages. Mr McGowan submitted that value of such lunch should be taken into account in calculating the compensation payable to the applicant. He estimated the value of such lunch at $30.00 per day.

100. Section 3(1) of the Ordinance defines “earnings” to include the value of any food supplies to the employee by the employer. Although no evidence had been adduced by the parties to show the value of the lunch provided by the 1^st respondent to the applicant, I accept that the estimate of Mr McGowan was a reasonable one. I find that the applicant also received benefit of lunch at $30.00 per day provided by the 1^st respondent. The total earnings of the applicant were $530.00 for each day he worked for the 1^st respondent.

101. Although the receipts were not signed by the applicant, they were produced by the 1^st respondent. When the 1^st respondent produced such receipts, it would have checked the work records of the 1^st respondent, if not that of the applicant, at the material times. The receipts showed that the applicant worked 14.50 to 25 days each month during the period from April to July 2008 and he worked 20 days in July 2008. MLW also confirmed at the trial that the applicant had worked 25 days in April 2008.

102. The applicant had been working for the 1^st respondent for at least more than four months before the alleged accident. Bearing in mind that the applicant was a daily wages worker, the 1^st respondent would have provided reasonable amount of work to the applicant for the applicant to stay with the 1^st respondent’s employment for over four months. Otherwise, the applicant would have to find alternative employment to earn a living. The applicant might have worked 25 days or more in a month and he might have worked less in another month. I find that the level of work stated in the receipts indicated the level of work undertaken by the applicant at the material times.

103. The average working day as showed by the receipts was $18.50 days per month and they showed that the applicant worked 20 days in July 2008, ie the month immediately before the alleged accident. After considering all available evidence, I find that the applicant worked 20 days each month at the daily earnings of $530.00 (ie $500.00 + $30.00) at the time of the alleged accident. His monthly income for the purpose of calculating compensation under the Ordinance, if payable, is $10,600.00 (ie $530.00 x 20 days).

Section 9 compensation

104. The applicant was born in 1976 and was 31 years old at the time of the alleged accident. Pursuant to sections 7 and 9 of the Ordinance, the compensation for loss of earning capacity will be $10,600.00 x 96 x 10% =$101,760.00.

Section 10 compensation

105. The Injury had caused the applicant unable to work for 180.50 days. The amount of compensation under section 10 of the Ordinance, if payable, will be $50,964.80 (ie $10,600.00 x [180.50 ÷ 30] x 4/5).

Section 10A compensation

106. The applicant’s medical expenses claim was for $1,170.00 which was supported by receipts and not disputed by the respondents. This amount will be allowed.

Total

107. The total amount of compensation, if payable, will be $153,894.80.

Interest

108. Interest on compensation, if payable, shall run from the date of accident (ie 20 August 2008) to the date of judgment at half of the judgment rate and thereafter at judgment rate.

Order

109. Failing on liability, the applicant’s claim for compensation must be dismissed. I so order.

110. Costs shall follow event. I make an order nisi that the applicant shall pay the costs of the respondents for this Action including all costs previously reserved. Costs shall be taxed, if not agreed, with certificate for counsel. In the absence of application within 14 days to vary the aforesaid order nisi, the costs order shall become absolute.

( R Lai )
Deputy District Judge

Mr James HM McGowan, instructed by MCA Lai & Co, for the applicant

Mr Osmond Lam, instructed by Cheng Yeung & Co, for the 1^st and the 2^nd respondents

Please refer to CACV226/2013 for the relevant appeal(s) to the Court of Appeal.