PAK SAI MING v. J V FITNESS LTD

DCEC 494/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 494 OF 2014

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RULING

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INTRODUCTION

1.  On 10 February 2017, I granted leave to the Respondent (“R”) for extension of time to seek variation of the costs order nisi and ordered that the Applicant’s award for the costs of trial (with certificate of counsel) be reduced by 30%, to be taxed if not agreed. I also ordered that the question about the costs of the applications for extension of time and variation be dealt with on paper.  The parties have since filed their written submissions on the costs of the applications. 

2.  I note that it is the position of Mr Clough, counsel for A, that there should be no order as to costs, as each party was only partly successful in the aforesaid applications.  Mr Clough emphasizes, among other things, the fact that R had asked for a specific reduction of 50% of A’s award for costs but was only able to get a 30% reduction.  On the other hand, Mr Ho, counsel for R, submits that (1) A should have the costs of R’s application for leave to seek extension of time; and (2) R should have the costs for the application to vary the costs order nisi as well as the hearing on 13 January 2017 and all subsequent written submissions.

CONSIDERATION

As regards (1)

3.  R was granted an indulgence by the court to entertain their application: Man Fong Hang v Man Ping Nam [2002] 4 HKC 538.  As such, there can be no dispute that A should have the costs of R’s application for leave to seek extension of time.

As regards (2)

4.  The main issue before the court at the hearing on 13 January 2017 was whether A’s awards for costs could and should be reduced notwithstanding that the expiry of the time limit and that A was able to do better than R’s sanctioned payments.  Written and oral submissions from both sides were received by the court on that issue.  However, during the hearing an issue arose as to whether the Court had already become functus officio. It became obvious that only when the answer to the latter question was in the negative that the court should go on to decide whether extension of time should be granted; and if so, whether reduction should be made on the ground of A having exaggerated his claim; and if so, by what extent the reduction should be.  In that context that the court invited the parties to file further written submissions after the hearing dealing specifically on the issue of functus officio.

5.  The position of Mr Clough as stated in his written submissions so filed was that the court did not have jurisdiction to allow the issue of costs to be re-opened.  Further, even if the court had such jurisdiction, R had failed to give any reasons for the court to exercise the discretion.  Mr Chan (the then lead counsel of R) held the opposite position.  In the event, for the reasons given in the Ruling handed down on 10 February 2017 the court ruled in R’s favour.  The upshot of the above was that R was successful in obtaining the extension of time sought in spite of the objection from A.

6.  In relation to the application for variation, although R had sought a 50% reduction of A’s award for costs, the fact that R did not get everything it asked for does not mean that it should automatically be deprived of any part of its costs: see Yiu Hon Lam v Chan Yu Chun, CACV 383/2007, citing Waddington Ltd v Chan Chun Hoo Thomas and Ors, FACV 15/2007 (14 November 2008).   In the present case, despite A’s objection, R was successful in persuading the court that the former’s awards for costs of the trial should be reduced on the basis of A’s exaggeration in his claim and evidence.   As such, I consider that R was the real winner in this regard, even though that the reduction ordered by this court was only to the extent of 30%.  I do not think that the fact that R had not sought to safeguard their position by a Calderbank letter impacts significantly on the issue of costs in the present case.  The fact that A had done better than the sanctioned payments made by R had already been taken into account when the court ordered the 30% reduction. 

CONCLUSION

7.  Having considered everything in the round, I make the following order:

(a)   A has the costs (with certificate of counsel) of the application for leave to seek extension of time to seek a variation of the costs order nisi; and

(b)   R has the costs (with certificate of counsel[1]) of:-

(i)   the application to vary the costs order nisi;

(ii)   the hearing on 13 January 2017 and all subsequent written submissions.[2]

DCEC 494/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 494 OF 2014

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RULING

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INTRODUCTION

1.  On 17 June 2016, I gave judgment in favour of the Applicant (“A”) by awarding him employee compensation pursuant to ss 9, 10 & 10A of the Employees’ Compensation Ordinance, Cap 282 in the total amount of $751,839.64, such amount was arrived at after giving credit to the advance payment of $557,045.54 already made by the Respondent (“R”).  I also made an order nisi giving costs to A (with certificate of counsel), to be taxed if not agreed. The facts and the evidence of the case are as stated in the Judgment which I am not going to repeat. 

2.  By a summons filed on 15 July 2016, R makes two applications, which A opposes, for the following:-

(a) extension of time for R to seek variation of the costs order nisi; and

(b) reduction of A’s award for costs by 50%.

3.  I note that R is in the process of winding up with provisional liquidators already appointed and that leave has been granted by the High Court for the present proceedings to continue.[1]

ISSUES

4.  By the operation of O 42 r 5B(3), Rules of the District Court (Cap 336H) (RDC), the costs order nisi became absolute on 2 July 2016.[2] As such, the present applications of R raise the following issues:-

(i) whether the court has already been functus officio;

(ii) if not, whether the court still has power to grant an extension of time, given that the costs order nisi has become absolute;

(iii) if so, whether extension should be given in the present case;

(iv) if so, whether there should be any variation; and

(v) if so, what the variation should be.

5.  I have studied the affirmations of Mr Au (R’s solicitors) and Mr Mak (A’s solicitors) filed for the present purpose.  I grateful for the helpful written submissions filed before the hearing and oral submissions from Mr Clough for A and Mr Maurice Chan for R made at the hearing, all of which I have carefully considered.  Furthermore, I have also considered the further written submissions on the issue of functus officio submitted at the request of the court from Mr Chan and Mr Clough filed after the hearing. 

THE CHRONOLOGY

6.  Before going to the issues, it would be convenient for me to set out the chronology of the relevant events as follows:-

17.6.2016	Handing down of Judgment (with costs order nisi)
30.6.2016	Draft judgment submitted for approval
2.7.2016	Costs order nisi became absolute
4.7.2016	Draft judgment rejected
7.7.2016	Draft judgment and draft Certificate of Assessment of Employees’ Compensation submitted for approval
13.7.2016	Draft judgment approved Provisional liquidators appointed[3]
15.7.2016	R’s summons for the present applications (returnable on 5.10.2016)[4]
20.7.2016	Judgment perfected and entered[5]
August 2016	Commencement of R’s winding up
29.9.2016	Consent summons for vacating the hearing date on 5.10.2016 and adjourning the hearing to a date to be fixed
25.10.2016	Leave from High Court for the present applications to continue

CONSIDERATION

As to (i): whether the court is functus officio

7.  In Andayani v Chan Oi Ling,[6] the Court of Appeal held that once the judge’s order had been drawn up entered or otherwise perfected, the court would be functus officio and had no further jurisdiction over the case.  The corollary of this is that it is within the power of the trial judge at any time before the judgment is entered and perfected to alter its terms. 

8.  In RTX Products Hong Kong Limited v Li Yiu Fai,[7] a case relied upon by both Mr Chan and Mr Clough, Anthony Chan J suggested that if a judgment is perfected before the order nisi becomes absolute, then it may be said that in such a case it is inherent in the judgment that the costs order has yet to become absolute and the door remains open to an affected party to make an application to have it varied, including an application for an extension of time to make the variation application.  With respect, I agree with his lordship’s reasoning. 

9.  In the present case, the Judgment was formally perfected and entered on 20 July 2016.  However, by which time R had already filed the summons seeking extension of time and variation.  Applying RTX Products Hong Kong Limited v Li Yiu Fai to the present case, I am of the view that it is inherent in the Judgment so entered that R’s summons are yet to be dealt with.  Therefore, as far as R’s summons is concerned, the court has not yet been functus officio. 

As to (ii): costs order nisi has turned absolute

10.  As aforesaid, the costs order nisi has turned absolute by operation of law on 2 July 2016.  It matters not that it was still described as a costs order nisi in the perfected Judgment: see RTX Products Hong Kong Limited v Li Yiu Fai, ante.[8]

11.  Nevertheless, it has been held twice by the Court of Appeal that, by virtue of O 3 r 5, Rules of the High Court[9] and its inherent jurisdiction, even though a costs order nisi has thus become absolute, the court still retains the discretion to grant an extension of time for a party to make an application for variation.  It is said that the fact that O 42 r 5B(6) provides for an eventual event, namely, the order nisi becoming absolute is not a basis for excluding the jurisdiction to extent time: see Ma Wan Farming v Chief Executive in Council & Anor;[10] applied in Tang Man Kit & Foo Tak Ching (suing as Managers of Wah Yan Mo Fan Heung) v Hip Hing Timber Company Ltd.[11] 

12.  I am alive to the submission of Mr Clough that the recent judgment of the Court of Appeal in Poon Ching Man v Lam Hoi Pun[12] seems to have casted some doubt to the correctness of Ma Wan and Tang Man Kit.  It was noted that it is not clear from the judgments in Ma Wan and in Tang Man Kit whether the costs order absolute had been perfected.  It was also noted that there was no discussion in Ma Wan and the majority’s decision in Tang Man Kit on the implication of the court being functus officio after sealing of the order (if the costs order absolute had been sealed) though Chung J (who would have decided differently in Tang Man Kit but for Ma Wan) adverted to it.[13]

13.  However, the present case is factually different from the situation in Poon Ching Man where the costs order nisi in that case had not only become absolute, but had also been perfected and sealed.  In the present case the Judgment had not yet been perfected and therefore this court had not yet been functusofficio at the time R’s summons for extension of time and variation was filed.  Therefore, I consider myself to be bound by Ma Wan and Tang Man Kit so that in the present case this court still have the discretion to grant an extension of time even after the costs order nisi has become absolute.

As to (iii): whether extension should be granted

14.  In order to succeed on the application for extension of time, R has to show, among other things, that there are justifiable reasons for not making the application within time and that there are merits in changing the order.[14] Besides, the court also needs to consider whether the extension would cause any prejudice to A.[15]  Furthermore, as suggested in Poon Ching Man,[16] the extension would involve the setting aside of the order absolute.  Viewing in that light, it is at least arguable that the considerations in O 2 r 5, RDC should also be relevant.

15.  I have not lost sight of the fact that R’s application for extension of time was about 2 weeks out of time and the delay is not insubstantial.  I am alive to the public interest of having finality of the matter.  I also take into account that R’s rights were subrogated to Falcon Insurance Company (Hong Kong) Limited (R’s insurer), so that the defence and the present applications are in reality conducted by Falcon in the name of R.  I note also that costs are a financial matter within purview of Falcon, so that theoretically speaking it could have decided to make the present applications without consulting R.  On the other hand, I take into account the explanation given in the 4^th and the 5^th affirmations of Mr Au that the issue of costs may have a bearing on the premium of the insurance policy in case of renewal and therefore in term of commercial reality there was a need for Falcon to confer with R before taking out the present applications.  Besides, I note that R was in obvious financial difficulties around the time when the Judgment was handed down and some of the responsible persons were then no longer in its employ.  There is a ready and reasonable inference, which I draw, that R was not operating its business normally, resulting in difficulties for Falcon to discuss with R about taking out the present applications.   

16.  I take into account that the provisional liquidators were appointed on 13 July 2016, resulting in an automatic stay after that.  This, of course, cannot be used as an excuse for the delay already existed prior to the appointment.  However, even if the application for variation had been made within time, realistic speaking the hearing of the present applications would probably not have taken place before the appointment of provisional liquidators.  After the appointment, the applications could not be dealt with without leave of the High Court. Therefore, the delay had not caused to real prejudice to A.  This is not to say that delay would be condoned whenever there was no prejudice to the receiving party.  However, the absence of prejudice is a factor which the court is entitled to take into consideration in the exercise of its discretion.

17.  As regards the merits of the application for variation, I note that at the trial there was an appeal by R under s 18 of the Employees Compensation Ordinance against the Certificate of Assessment issued by the Employee’s Compensation (Ordinary Assessment) Board.[17] In the relevant Form 7, A was certified to have suffered a 5% loss of earning capacity and sick leave of 627 days in total.  R’s appeal was partly successful in that this court only allowed the certified sick leave between 25 May 2013 and 31 August 2014 (464 days) and disallowed his certified sick leave from 1 September 2014 onwards. [18]  Viewing in that light, R had successfully resisted part of the claims of A.  As such, there are at least some merits in R’s application for variation. 

18.  Taking everything into account, I am satisfied that this is a suitable case to grant an extension of time for R to seek a variation of the costs order nisi.

As to (iv): whether there should be any variation

19.  It is held in Hung Fung Enterprises Holdings Ltd v Agricultural Bank of China,[19]that  following Civil Justice Reform, the correct approach was to regard the proposition that costs should follow the event not as a general rule but only to operate in shifting to the unsuccessful party the burden of showing why some different approach should be adopted on the particular facts, the rationale being that a mechanistic adoption of the principle might result in parties incurring unnecessary costs.

20.  In Poon Ching Man v Lam Hoi Pun, Lam VP,[20] giving the judgment of the Court of Appeal, stressed that Re Elgindata Ltd (No 2)[21]does not establish that as a matter of law there should be deprivation of costs or separate costs orders for different issues whenever a successful party fails on some issues.  It is still a matter of discretion to be exercised by reference to the facts and circumstances of the case in question. 

21.  As to how a court should exercise its discretion in relation to costs, there are ample case authorities for the proposition that the court is entitled to take into account the fact that the claimant had deliberately exaggerated his claim and the effect of that deliberate exaggeration on the proceedings: see Summers v Fairclough Homes Ltd,[22] cited with approval in Li Ming Tak v Hong Kong Airport Services Ltd.[23]    Moreover, the fact that the claimant is able to beat the payment into court by the other side is not conclusive and may not necessarily prevent the court from penalizing the claimant on costs on the ground of his deliberate exaggeration: see Molly v Shell UK Limited;[24] and Painting v University of Oxford.[25]    

22.  In the present, notwithstanding that A was able to do better than the sanctioned payments made by R,[26] I am satisfied that this is still a proper case to exercise the court’s discretion to reduce A’s awards for costs.  In this regard, I note that the trial was heard on 6 August 2015 and 23 to 26 November 2015.  No evidence was heard on the first day because of a disclosure issued and then the matter was adjourned by consent.  The trial actually commenced on 23 November 2015.  There was only one witness from each side – A and Ms Tam (for R).  Although A’s examination-in-chief only lasted for about 20 minutes, he remained in the witness box for cross-examination for a total of about two and a half days.  On the other hand, Ms Tam’s oral testimony only lasted for about half a day and it was mainly about A’s job duty as a Fitness Manager. 

23.  In my assessment, had it not been A’s exaggeration, much of court’s time could have been saved.  This is because:-

(a)   R had admitted liability and the issue at the trial was only about quantum;

(b)   about one half of A’s cross-examination related to his medical treatment records, his examination by R’s doctor and the joint examination by the experts, for all of which he was cross-examined at length.  As pointed out by Mr Chan in his written submission, the court in the event found that A had exaggerated his symptoms and disability at various stages;[27]

(c)   the court had taken A’s exaggeration into account and disallowed a significant portion of A’s certified sick leave, resulting in a reduction of the total compensation claimed by about 43%.  Given that this was an employee’s compensation (based on statutory formulae) rather than a Common Law claim, the reduction was a very substantial one; and

(d)   as aforesaid, R was partly successful in its appeal under s 18 of Cap 282 and it is therefore appropriate for this to be reflected in the costs order.   

As to (v): Extent of variation

24.  Both sides agree that it would not be right for the court to undertake an arithmetic exercise by just looking at how much of the court’s time had been utilized in A’s cross-examination for exposing the exaggeration of his disability and symptoms. 

25.  It is Mr Chan’s position that A’s award of the costs of the trial should be reduced by 50%.

26.  With respect, whilst I agree that A’s award for costs of the trial should be reduced, I do not agree that it should be as much as 50%.  After all, he was successful in his claim for loss of earning capacity, most of his claim for medical expenses and part of his claim for sick leave.  Moreover, R’s contention that A’s job as Fitness Manager did not involve any physical exertion was not accepted by the court.[28]

27.  Looking at the matter in the round, in my ruling the costs awarded to A for the trial (with certificate of counsel) should be reduced by 30%, to be taxed if not agreed. 

Costs of the present applications

28.  In view of the terms of R’s summons, there is no dispute that A should have the costs of the application for extension of time.  As regards the application for variation of the costs order nisi, R is successful to a limited extent as stated above. 

29.  As agreed by counsel, in order to save costs and time the question about the costs of the present applications shall be dealt with on paper.  To that end, I direct that both sides are to file written submissions with 14 days from the date of this Judgment.  

DCEC 494/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 494 OF 2014

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JUDGMENT

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INTRODUCTION

1.  The respondent runs a chain of fitness centres in Hong Kong.  The applicant was employed by the respondent as Fitness Manager at its fitness centre in Central.  The fitness centre occupied the 11^th to the 16^th floors of a commercial building.  There was a lift specifically reserved for customers of the fitness centre and staff members (including the applicant) could also use it during non-busy hours.  However, during busy hours staff members were not allowed to use the lift and they would have to use the rear staircase for reaching other floors of the centre.  On 25 May 2013, when the applicant was returning to his office on the 11^th floor from the toilet via the rear staircase, he slipped and fell about 10 steps down, landed on his back and sustained injuries as a result.  

2.  Judgment on liability has already been entered by consent.[1] The case comes before this court for assessment of compensation under s 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 as well as determination of the respondent’s appeal under s 18 of the Ordinance against the Certificate of Assessment issued by the Employee’s Compensation (Ordinary Assessment) Board (“the Assessment Board”) dated 12 March 2015.[2]  Although the respondent has not specified in the Notice of Appeal as to what they are appealing against, it is clear from the course of the hearing and counsel’s submissions that they are disputing both the applicant’s percentage loss of earning capacity[3] and the length of the temporary total incapacity[4] as shown in Form 7.

THE ISSUES

3.  The parties agree that for the 12 months prior to the accident, the average monthly earning of the applicant was $96,029.19.[5] This is the figure to be used for calculating compensation under s10.  However, for the purpose of s 9, the figure is to be adopted is limited to $23,580 per month, which was the statutory maximum applicable in 2013 when the accident occurred.[6]

4.  In view of the contentions of the parties, the issues in the present case can be summarized are as follows:-

(a) whether the applicant’s work as Fitness Manager was purely managerial and sedentary or whether it would also require physical exertion and if so, to which extent;

(b) whether the applicant had exaggerated his symptoms and disability;

(c) whether the court should depart from the presumption arising from the deeming provision in s 10(2) and what amount of compensation under s 10(1) it should be;

(d) what the applicant’s percentage loss of earning capacity is and what the amount of compensation under s 9 should it be; and

(e) what amount of compensation the applicant should have under s10A.

RELEVANT LEGAL PRINCIPLES

Purposive interpretation

5.  In construing the Employees’ Compensation Ordinance, the court should adopt an interpretation which is consistent with and gives effect to the legislative purpose of the provision under consideration.  The obvious purpose of the Ordinance is “to speedily and with considerable certainty provide urgently needed no-fault and compulsorily-insured compensation to injured employees or their families”: see LKK Trans Ltd v Wong Hoi Chung.[7]

Deeming provision in s10(2)

6.  Applying the aforesaid to s 10 of the Ordinance, in Yu Tat Kam v Chu Tung Shing & Anor[8] and Kan Wai Ming v Hong Kong Airport Services Limited,[9] the Court of Appeal has confirmed that the deeming provision of s 10(2) of Cap 282 relating to a period of absence from duty certified is rebuttable and that the risk of abuse should lie on the employer rather than the employee.  Moreover, the burden is on the employer to prove that the employee was earning money or still capable of earning money during the certified period of sick leave for a reduction in compensation under s 10(1).  I note also that the Court of Appeal has not formulated any test as to how the deeming provision could be rebutted: see also Hong Kong Civil Procedure 2016, Vol 2, at §Q1/10/4A.  In my humble opinion, whether the presumption is rebutted in any given case is a fact-specific issue depending on the evidence of which case. 

7.  That said, the presumption in s 10(2) of Cap 282 relates to the “period” of absence certified to be necessary, not the “cause” of the absence.  In order for an injured employee to receive compensation under s 10(1), it is a pre-condition that the temporary incapacity, whether total or partial, “results” from the injury.  Therefore, the injured employee still has to establish causation: see Hong Kong Civil Procedure 2016, Vol 2, at §Q1/10/4, citing Lai Yuen Hing v Lo Chi Hung & Another.[10] Compared with LKK Trans Ltd v Wong Hoi Chung, ante, where it is held that the presumption in s 10(5) which deems an incapacity to be permanent has no bearing on issues of causation. 

8.  As regards the test for causation, the Court of Appeal said in Lee Kin Kai v Ocean Tramping Co Ltd[11] to the effect that causation is essentially a matter for the judge not for the doctors.  While a judge will be assisted by the medical evidence he is not dictated to by it.  In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury, even if it was not the sole cause.  I note that Lee Kin Kai’s case was approved by the Court of Final Appeal in LKK Trans Ltd v Wong Hoi Chung.

Appeal under s 18

9.  It is well-known that an appeal under s18 of Cap 282 is not in fact an appeal proper.  This is because the Assessment Board does not give any reasonsfor its assessment and the court hearing the appeal has to form its own view by reference to all the evidence, and in particular the medical evidence, in arriving at its conclusion as to the permanent loss of earning capacity and the period of temporary total incapacity resulting from the injury.  In Chan Kit v Sam Wo Industrial Manufactory[12], Hunter JA, who gave the judgment of the Court of Appeal, said:-

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

10.  Similarly in Chu Chin Yiau v Ray On Construction Co Ltd[13], Deputy District Judge Bharwaney (as his lordship then was), also said:-

“In fact, whether an appeal is lodged pursuant to s 18(1)or application made for compensation under s 9 or, indeed, both proceduresresorted to at the same time, it is clear that a court approaching the matterhas to start afresh, relying not only on the certificate of the Board but alsoon any other evidence, especially medical evidence, adduced before it toassess the loss of earning capacity permanently caused by the injurysuffered in an accident at work (Chan Kit v Sum Wo Industrial Manufactory[l989] 2 HKLR 230 at 233 and Yip Fong Ming v Joint-Effort EngineeringCo & Anor(ECC 128/88, 17 May 1989 p 3, unreported)).”

11.  I remind myself that for the purpose of assessing the loss of earning capacity the relevant consideration is not the seriousness of the injuries but the effect of the injuries on the earning ability of the injured employee: Yung Chi Man v Tang Kan Fu t/a Yun Shing Motor Service[14].

12.  Furthermore, in testing the conclusion reached by the Assessment Board against the total evidence available, the court should also have regard to s 9(1A) of the Ordinance which requires it to take into the special circumstances of the injured employee.  Because if there are, the true loss must be ascertained and proportionally applied to a “permanent total incapacity calculation based on s 7: see Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd[15]and also Lau Man Leung v Yiu Wing Construction Co Ltd[16].

Medical evidence

13.  In considering the medical evidence, I remind myself of what Roger VP said in Tang Shau Tsan v Wealthy Construction Co Ltd[17]:-

“An expert witness can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.”

14.  Besides, medical experts are not allowed to address on the factual question of the likelihood or otherwise of employers in the employment market employing persons with particular injuries and/or disabilities.  The issue of employability of the claimant by employers in the job market depends not only on clinical opinion as to his physical or mental capability in undertaking a particular job given its nature or scope of duties, but also on a host of other factual matters (eg the motivation, willingness and/or efforts of the claimant in finding work) that are fully within the purview of the trial judge.  To put the questions as posed to the experts is to risk letting them usurp the function of the trial judge as fact-finder.  The court should be alert to ensure that judges and not experts are to decide cases: see Yip Koon Man v Yuen Long Merchants Association Secondary School.[18]

Assertion of pain

15.  The court is not bound to accept an applicant’s assertion of pain at face value.  In Hung Sau Fung v Lai Ping Wai[19] where Bharwaney J said,

“Pain is subjective and it is for the court to assess the evidence of the injured person and come to a finding whether or not he is indeed suffering from pain and, if so, the nature and extent of that pain.”

AS REGARDS (a): NATURE OF APPLICANT’S WORK

Evidence

16.  The applicant was employed as an Assistant Fitness Manager of the respondent in March 2011.  At that time, he had a base salary of $10,000 a month[20] and he was also entitled to commissions for servicing and selling personal training sessions.[21] 

17.  On 1 January 2013, he was promoted to Fitness Manager.  As a result, his job duty and compensation package also changed.  The base salary was increased to $25,000 per month.  On the other hand, his service commission became subject to a cap in that he would only be remunerated for a maximum of 50 hours of physical session per month.[22] According to the applicant, as Fitness Manager he could obtain up to $300 from each training hour he serviced.  Moreover, the applicant’s service commissions could only come from his “existing clients”.[23]  As such, there could be very little monetary incentive for the applicant to take on new clients.  Thus, the maximum amount of service commission he could earn was $15,000 a month.  After his promotion, the major component of his income was management bonus which was based on the total sales of training sessions of the centre in the preceding month.[24]  In my view, the reasonable inference to be drawn from the above is that the respondent expected the applicant as Fitness Manager to concentrate on promoting the business of the centre as a whole rather than providing or selling physical sessions himself.  In fact, the defence witness, Ms Isabella Tam,[25] put it bluntly that the major duty of the applicant as Fitness Manager was to achieve the sales target of the centre.

18.  However, under cross-examination the applicant disagreed that his duty was mainly managerial and did not involve much physical exertion.  He said that, apart from attending to administrative and sedentary work, he would also need to train his subordinates (personal trainers).  He agreed that the training he provided to his subordinates was not aiming at enhancing their professional qualification.  He said that his training was aiming at enhancing the sales techniques of his subordinates so that they would know to sell the products of the respondent.  He said that in that regard he would have to show to junior staff how to conduct physical training sessions with clients and to perform demonstrations so that his junior staff would know how to “package” their training sessions before the clients. 

19.  The defence witness Ms Tam said that there were 10 different levels of physical trainers (PT1 – PT10) employed by the respondent at their fitness centres.[26] She said that a Fitness Manager would be the most senior in rank in a fitness centre but he might not necessarily be the physical trainer of the highest level on site.  She said that when the applicant was a PT6 when he was promoted to Fitness Manager.  One of the criteria for promotion to Fitness Manager was sales technique.  Regarding training provided to physical trainers, Ms Tam said that there was a Fitness Training Manager, Mr Kelvin Ng (a PT10), who was responsible for providing and organizing professional physical training courses to all physical trainers of the respondent and to facilitate those physical trainers to obtain outside certification.  Under Mr Ng, there were Fitness Master Trainers who assisted him in the said courses.  However, Ms Tam agreed that she was not involved in the day to day running of any particular fitness centre. 

Finding

20.  Having considered the evidence before me, I find that the training courses Ms Tam referred to were of a nature different to the training which the applicant said he would provide to his subordinates.  I see no material conflicts between the applicant and Ms Tam as I find that they were talking about different things.  It also appears to me that Ms Tam does not in fact have much personal knowledge about the training courses organised by Mr Kelvin Ng and she is not familiar with the day to day running of the applicant’s fitness centre.  In my assessment the evidence of Ms Tam about Fitness Training Manager and Fitness Master Trainers in the respondent does not undermine the applicant’s evidence that he had to teach his ordinates sales techniques. 

21.  I find as a fact that the applicant’s major duty as Fitness Manager was to promote the sales of his fitness centre.  On the other hand, I do not accept the proposition that the applicant’s job did not involve any physical exertion.  This is because I accept that the applicant would personally provide physical training sessions to clients and teach his subordinates sales techniques by demonstrating to them how to conduct training sessions with clients.  I have taken into account that the applicant’s remunerated training sessions with clients were capped and were likely to dwindle over time, especially when his existing clients had exhausted their training sessions and did not purchase more.  As regards the training he provided to his subordinates, since he was only required to do demonstrations, I find that the inherent probability is that it would not be strictly necessary for him to lift or move heavy weights when demonstrating.  Besides, I find that as Fitness Manager he could have requested his more experienced trainers to help him with difficult manoeurres if necessary.  That said, I find that it would be difficult, if not impossible, to express in precise percentage terms how much of his duty as Fitness Manager was purely administrative and sedentary and how much of it was physical.  Taking everything into account, I find that physical exertion did form a relatively small yet integral part of the applicant’s employment as Fitness Manager.  I make these findings after having taken into accounts the criticisms made by Mr Wong, counsel for the respondent, in his written submission regarding the applicant’s credibility.  As the tribunal of facts, I am satisfied that I can still make the aforesaid findings even though I find that the applicant has exaggerated his symptoms and disability (see the discussion below). 

AS REGARDS (b): EXAGGERATION

22.  As liability has been admitted, the fact that the applicant had met with an accident and suffered injuries is not in dispute.  The issues are whether, and if so which of, the applicant’s impairments and complaints, are caused by the accident and whether the applicant has made any exaggerations.

Medical history

23.  The applicant’s medical history has been reviewed and summarised in the Joint Report of the medical experts[27] which I do not intend to repeat in detail.  It suffices to say that I have read and considered the Joint Report and also the various reports of the treating doctors and paramedics. 

24.  For present purpose, I would like to highlight the following of the applicant’s medical history:-

(i) On 25 May 2013, after the accident had occurred the applicant was admitted to Queen Mary Hospital (QMH).  There, CT scan of his brain and X-ray of his cervical spine were done and no fracture or dislocation was detected. He was discharged on the following day and admitted to St Paul’s Hospital (SPH).  According to the applicant, that was because QMH was unable to arrange an early MRI for him.  In the Discharge Summary of QMH,[28] it was noted that the applicant had full power in his upper limb (except left C8 (4+/5) and left T1 (4/5) myotomes) and full power in lower limb, although there was also complaint of numbness, pain and tenderness over various parts of his body.

(ii) On 27 May 2013, at SPH, MRI revealed that there was a desiccated disc with mild posterior disc bulging and an annular tear at L5/S1.[29] No foraminal narrowing was noted and the exiting nerve roots were not compressed.  He was hospitalized for 5 days and discharged on 30 May 2013.  Afterwards, he received regular physiotherapy and out-patient follow up at SPH.[30]

(iii) On 7 August 2013, at SPH, MRI on the applicant’s left foot revealed no fracture or dislocation.  Similarly, there was no no fracture or dislocation regarding his right foot.[31]

(iv) During the rehabilitation period, however, the treating doctor at SPH, Dr Francis Lau, said that the applicant reported on 22 January 2014 that he developed increasing neck pain and numbness in radial three fingers on left hand.[32]

(v) On 11 February 2014, MRI revealed degenerative changes of the applicant’s cervical spine at different levels with respective mild and minimal foraminal stenosis.  However, there was no evidence of cord compression.  There was also no significant interval change noted regarding the applicant’s lumbar spine.[33]

(vi) On 12 February 2014, the applicant attended Pamela Youde Nethersole Eastern Hospital (EH) complaining of neck and back pain.  Examination showed that the applicant’s neck range of motion was full; Spurling’s Test negative; SLR:80/80 degrees, [34] motor power from C5 to S1 left/right: all 5/5; upper and lower limb reflexes normal; tone normal; no sensory deficit and no myelopathic hand signs; no small muscle wasting of the left hand; and Tinel’s sign negative at carpal tunnel. Options of injection for diagnosis and therapeutic purpose were discussed but the applicant was not keen for surgical treatment.  Instead, the applicant opted to continue physiotherapy.[35]    

(vii) On 18 February 2014, Dr Francis Lau of SPH noted that the applicant had made a slow but fair amount of progress.  The applicant had residual pain at the lower back and the coccyx but power of dorsiflexion of the left big toe improved to 4+/5.[36]

(viii) On 26 March 2014, the applicant complained to the treating doctor at EH about neck pain and pain over S1/2 region occasionally referred to the left leg. Examination showed that the applicant had fair neck ROM;[37] back paraspinal muscle tightness; SLR: 80 degrees; and upper and lower limb power: 5/5.  The applicant was educated neck and back stretching exercise.[38]

(ix) On 21 May 2014, the treating doctor at EH reported that the applicant complained of neck and lumbar back pain but no radiation.  Examined, on the other hand, showed neck ROM full as well as upper limb and lower limb power full.[39]

(x) On 16 July 2014, the treating doctor at EH reported that the applicant complained of neck pain over the right trapezius region as well as numbness over the left lower limb and the left radial 3^rd digits for one week.  The applicant walked with a stick.  He did not have much back pain. Examination showed neck ROM ¾ of normal range, upper and lower limb power full, SLR: 80/80 degrees, no thenar muscle wasting and Tinel’s sign negative at carpal tunnel.[40]

The applicant’s evidence

25.  The applicant adopted his statements[41] and his affirmation[42] as evidence-in-chief.  In brief, his present complaints are that he has to rely on a single clutch to assist him in walking on long term basis, that he feels weakness in his left leg, he feels pain after sitting for some time, back pain and numbness of left leg, he suffers continuous neck pain which causes headache, eye sore and blurry eye-sight and has difficulties in sleeping.  He cannot lift heavy objects.  His condition gets worse when the weather changes.  His impairments affect his emotion which has a negative bearing on his relationship with his girl friend and his social life.[43]

26.  The applicant was cross-examined at length by Mr Wong, counsel for the respondent. In relation to the applicant’s rehabilitation, he was referred to the successive improvement of his condition as shown in a series of physiotherapy reports from SPH.[44] It suffices for me to highlight the following:-

(a) in the physiotherapy report dated 3 October 2013, it was recorded that he was able to walk independently for 30 metres without any walking aids, that his self-evaluation was a respective 80% improvement but having increased back pain over a Korea trip the week before;[45]

(b) in the physiotherapy report dated 11 October 2013,[46] the applicant’s self-evaluation was that his condition had “plateaued” with a retrospective 80% improvement.  It was also recorded that he had no back pain at rest;

(c) in the physiotherapy report dated 27.11.2013, the applicant’s self-evaluation was “80% improvement”.  The physiotherapist noted that the applicant was able to walk independently for 50 metres with nil aids;

(d) in the physiotherapist reported dated 8 January 2014, the applicant described himself as having a retrospective 80-85% improvement.  Similarly, it was recorded that he was able to walk independently for 50 metres without aids;[47] and

(e) it is noted that in none of the physiotherapy reports was the applicant said to be suffering any increasing neck pain.  The first record of the applicant having an increasing neck pain was his complaint to Dr Lau on 22 January 2014.[48]

27.  The applicant was also questioned about the examination on 7 October 2013 conducted by Dr David Cheng, a specialist in Orthopaedics & Traumatology, who was asked by the respondent to examine the applicant.  I would like to highlight the following points:-

(a) in that examination, the applicant complained to Dr Cheng that he suffered constant back pain, radiating to the buttock, thigh and leg and that there was also parasthesia of the right lower limb.[49] The applicant agreed under cross-examination what he told Dr Cheng was much more serious than what was recorded by his own physiotherapist at SPH at the relevant time;

(b) Dr Cheng reported that the applicant did not need any walking aid, that he could support himself on any one leg and on the toes and that he squatted and rose normally.  Dr Cheng recorded that the applicant said that he carried a crutch for safety reasons;[50] and

(c) Dr Cheng referred to the injury record of Dr Lam Yan Kit of QMH which said that Dr Lam found no neck or should pain or problems.[51] Dr Cheng said that he, similarly, found no such injuries and that the applicant did not even mention such problems.[52]

28.  The applicant was then asked about the joint examination by the experts on 4 September 2014 and the fact that he walked into the clinic with a right handed stick.[53] The applicant also said that the stick he used was an extensible aluminium hiking stick.  The applicant said that he used the hiking stick to aid his walking rather than to support his weight.  The applicant said that he got rid of his elbow clutch in May or June 2014.  I observe that this is different from what he said in his witness statement where he said that he had to rely on a single clutch to assist him in walking in a long term basis.[54] 

29.  As to the applicant’s complaint in his witness statement[55] and to the experts[56] that he was only able to sleep 3 to 4 hours per night due to his neck pain, when it was put to him that there was no medical record to support this complaint, he said he had told the doctors at SPH and EH about that but he did not know whether there was any medical record about it.  It was then put to him that there was no record of him being prescribed with any medicine by Dr Lau, the treating doctor at SPH, ever since 2014.  I note also that from the schedule of medical expenses[57] prepared by the applicant’s solicitors, the last time the applicant obtained medication from SPH was on 8 January 2014.  As to this, the applicant’s said that he obtained medication from outside and also from EH.

30.  As regards his sick leave certificates issued by SPH and EH, he agreed under cross-examination that the reference to neck pain only started to appear from January 2014, but not before.

31.  The applicant was also cross-examined on his trips with his girl friend (Carmen Wong) and family members and his alleged involvement in Wifi Egg, the business of Carmen Wong.  The applicant said he had travelled 4 to 5 times after the accident and those trips were for pleasure.  He denied that he had any involvement in the business of Wifi Egg.  When he was shown some emails which suggest that his email account had been used in connection with the business of Wifi Egg, he said that it was possible that Carmen Wong had used his email account. 

The joint expert report[58]

32.  As aforesaid, the joint examination by the experts was conducted on 4 September 2014.  It started at 1540 hours and finished at 1611 hours.  The results of the physical examination can be found at §§44-51 of the joint report.[59] For present purpose, it suffices for me to highlight the following:-

(a) the applicant sat normally until 1604 hours;

(b) his gait was normal when walking without a stick;

(c) there were Waddell signs;

(d) neck examination showed no swelling or deformity, although tenderness was reported;

(e) low back examination showed no swelling, deformity or muscle spasm, although tenderness was reported;

(f) upper limb neurology: Hoffman’s sign negative;

(g) lower limb neurology: straight leg raising test: full for both right and left.  No gluteal muscle wasting; and

(h) no difference in girth length between right and left legs.

33.  I will come to the areas of disagreement between the two experts in due course.  At the juncture, I note the following common points:-

(a) Dr Chun of the respondent opined that the diagnosis should be minor contusion to head, neck, left shoulder, lower back (including coccyx), left hip, left knee and both ankles.  Dr Chun was of the view that the degenerative changes to the applicant’s lumbar and cervical spine were pre-existing and not caused by the injury.[60]

(b) Dr Fu, expert for the applicant, opined that the diagnosis should be soft tissue injury of head, neck, left shoulder, lower back (including coccyx), left hip, left knee and both ankles.  Dr Fu agreed that the disc prolapse in the applicant’s cervical and lumbar spine should be pre-existing and could not be caused by one single trauma.  Dr Fu said further that these kinds of radiological findings are common finding for normal population in the applicant’s age and most are asymptomatic.[61]

(c) Both Dr Chun and Dr Fu agreed that the applicant do not require further treatment,[62] that the need for surgery is not indicated[63] and that the applicant’s condition has reached maximal medical improvement.[64]

34.  In view of the above, I find that the statement in Form 7 that the applicant’s “[f] all … resulting in prolapsed intervertebral disc …” (underline added) is contrary to the common opinion of Dr Chun and Dr Fu and is incorrect insofar as it suggests that the prolapse was the result of the accidental fall.

Evaluation of the evidence

35.  In my view, when it comes to evaluation of the evidence, more weight should be put on the objective medical evidence rather than the applicant’s statements and oral evidence in court.  In this regard, a distinction should be made between the diagnosis and assessment of the treating doctors and paramedics on the one hand and what the applicant had told them on the other. It is the former which should be given more weight.  This is not to say that the evidence of the applicant should be totally disregarded.  It is that, subject to the issue of the applicant’s credibility, when the views of the doctor and health care professionals are in conflict with the applicant’s evidence, the former should be preferred as being more objective and reliable.  Furthermore, if the self-evaluation which applicant gave to the paramedics reveals a general trend or pattern, that trend or pattern, allowing some occasional ups and downs, may be useful in assessing the general progress of recovery.

36.  When considering the different views of the experts, I will have regard to the reasons they have given, if any, for their opinions and what replies, if any, one expert had on the contrary views of the other.  I will also consider whether the views of the experts are supported by the contemporaneous clinical records of the treating doctors and paramedics.

Degeneration of the lumbar and cervical spine

37.  The issue is whether the applicant’s alleged prolonged back and neck pains are caused by the injuries resulting from the accident. 

38.  In this regard, Dr Chun and Dr Fu disagreed as to whether the aforesaid degenerative changes of the applicant’s lumbar and cervical spine were aggravated by and had became symptomatic because of the accident.  Dr Chun of the respondent opined that as degeneration runs a downhill deteriorating course, even without the accident there would still be a strong possibility that the applicant would have low back pain and neck pain at any time.[65] On the other hand, Dr Fu of the applicant surmised that had the accident not happened, the applicant should have remained asymptomatic.  Dr Fu opined that since it was only after the accident that the applicant started to have the impairments, the accident should have turned his asymptomatic degeneration into symptomatic one.[66] 

39.  Based on the evidence before me, I am satisfied on balance of probability that the accident was a contributory cause to his back pain.  My reasons are as follows:-

(a) the applicant had consistently complained of back pain from the very beginning as recorded in the Work Injury Report.[67]  Then, in the first physiotherapy report dated 13 June 2013, it was noted that he complained of: [68] 

“Back pain centralised L4-S1 region VAS 6/10”

On 11 October 2013, the applicant gave a self-evaluation as follows:[69]

“condition plateaued. retrospectively 80% improved. VAS 0/10 back pain at rest. soreness in back with movements, especially extension.”

(b) On 7 October 2013, Dr Cheng noted that some stiffness of the back, especially on extension.  There was also some local tenderness.  Dr Cheng’s opinion was that the applicant was then “approaching a state of maximal medical improvement”.[70] In other words, Dr Cheng’s opinion was that the applicant had not yet reached maximal medical improvement at the time. 

For avoidance of doubt, I should say that although I find that the applicant’s back pain was caused by the accident, it is a separate and different question as to whether that back pain had healed or reduced in severity after all the treatments he had received.  I will address this when I consider the applicant’s loss of earning capacity and sick leave.

40.  As regards the applicant’s neck pain, however, I prefer Dr Chun’s view that the applicant’s alleged neck problem was not caused, accelerated or aggravated by the accident on 25 May 2013.  My reasons are as follows:-

(a) the physiotherapy reports show a general trend of gradual but stable improvement of the applicant’s condition both in terms of his self-evaluation and his ability to walk.  There was no mention of any neck pain or neck problems.  I find it inherently improbable that the treating physiotherapist at SPH would have consistently failed to record any complaints of neck pain if there had in fact been such complaints;

(b) there is also the report of Dr Cheng, which I accept, that the applicant had not mentioned any neck pain or problems during his examination of the latter on 7 October 2013;

(c) whilst the pre-existing degenerative changes to the neck had only became symptomatic after the accident, Dr Fu has not in fact provided any clinical evidence to support his opinion that the neck pain was caused by the accident. In this regard, I note that the first documentation of the applicant’s complaint about increased neck pain only appeared on 22 January 2014 when he was seen by Dr Lau of SPH[71] and that was almost 8 months after the accident; and

(d) before January 2014, the applicant’s sick leave certificates did not refer to any neck pain at all.    

Exaggeration of symptoms

41.  This is mainly about the severity of the applicant’s alleged pains.  Although I have already found the neck pain was not caused by the accident, for the sake of completeness, I would also consider whether the applicant has exaggerated his neck pain as well as his back pain. 

42.  At the joint examination on 4 September 2014, the applicant complained to the experts of the following:-[72]

(a) continuous and non-stop neck pain from grade 6 to grade 8 according to the Visual Analog Scale;

(b) left upper limb “numbness” (meaning deceased sensation), decreased by 70%;

(c) left lower limb numbness, deceased by 70%;

(d) left side low back/buttock and coccyx pain from grade 6 to grade 7;

(e) walking with a stick on discharge; and

(f) not capable of doing housework.

43.  Dr Chun opined that the applicant had exaggerated his symptoms which are out of proportion to the initial minor trauma.  He gave his reasons as follows:-

(a) the severe to very severe neck and low back pain complained of by the applicant is inappropriate in the absence of cancer, infection and special inflammatory diseases, all of which had been excluded by MRI examinations;[73]

(b) the complaint of left upper and lower limb numbers finds no support from MRI examinations and the objective findings noted at the joint examination;[74] and

(c) there were positive Waddell’s signs.[75]

44.  Dr Fu said simply that the treatment the applicant received is appropriate for his condition.[76]

45.  Based on the evidence before me, I find that the applicant has exaggerated his symptoms at the joint examination.  Furthermore, I find that the applicant had shown a tendency to exaggerate his symptoms and disability when he was examined by the doctors engaged by the respondent.  My reasons are as follows:-

(i) Dr Chun has provided reasons for his opinion that the applicant was exaggerating.  On the other hand, Dr Fu’s comments, namely that “the treatment the applicant received is appropriate for his condition”, is ambiguous to say the least.  It is also telling, in my will, that Dr Fu does not respond to Dr Chun’s reaons given for saying that the applicant has exaggerated his symptoms out of proportion;

(ii) the applicant’s complaints to the experts were at odds with the general trend of improvement as recorded in the physiotherapy reports.  Also, Dr Fu has not explained why the applicant’s condition would appear to have changed for the worse, if the treatment the applicant received was appropriate for his condition;

(iii) the applicant told Dr Cheng on 7 October 2013 that he was then some 60% better than just after the accident. This is to contrast with what he told the physiotherapist on both 3 October 2013 and 11 October 2013 that he had a retrospective 80% improvement;

(iii) the applicant’s complaint to the experts that he was unable to do housework is to contrast with his telling Dr Cheng that he could manage his activities of daily living without much problem; and

(iv) as to the applicant’s complaint in his witness statement that he suffered from long term headache, eye sore and blurry vision,[77] the applicant agreed in cross- examination that that was not supported any medical evidence. 

This is not to say that the applicant is no longer suffering from any impairments or pains.  I note that even Dr Chun did not go that far.  Dr Chun said that the applicant had “grossly exaggerated his pain and disability out of proportion”.  Dr Chun did not exclude the possibility of the applicant still having “mild residual pain” from the injury.[78]

Reliance on walking aid

46.  Dr Chun’s opinion was that the applicant did not need any walking aid.[79] Again, Dr Fu did not comment on this point at all.[80] 

47.  Based on the evidence before me, I find that the applicant has exaggerated his disability and his requirement for a walking aid in his statements.  This is because:-

(a) according to the report of Dr Cheng, which I accept, the applicant told him on 7 October 2013 that he carried a clutch for safety reasons.  Dr Cheng observed that the applicant walked slowly and did not need any walking aid. Besides, the examination on that day showed that the applicant could squat and rise normally;[81]

(b) according to the physiotherapist, by 27 November 2013, the applicant was able to walk 50 metres with nil aid;

(c) on 24 January 2014, the private investigator employed by the respondent observed that, although the applicant carried a walking stick in his right hand whilst walking, he put his left hand in the pocket.  The applicant was also seen talking on a mobile phone in his left hand while walking;[82]

(d) on 4 September 2014,  the date of the joint examination, although the applicant walked in with a stick, it was found that he could in fact with a normal gait without aid.  Moreover, he was able to walk on tiptoes bilaterally; and

(e) on 29 March 2015, the private investigator observed that the applicant was not using any walking aid when walking on the street. 

48.  As regards the observation by the private investigator that the applicant was carrying a walking stick on 24 January 2014, I find that the applicant doing that not because he physically needed the walking stick to assist him in walking but only for psychological reasons, which was similar to what he had told Dr Cheng on 7 October 2013.  I find it more probable than not that the applicant did not in fact require a walking aid by late January 2014. 

AS REGARDS (c): SICK LEAVE

Certified sick leave

49.  The sick leave periods certified in Form 7[83] were between 25 May 2013 and 31 October 2013 and also between 17 November 2014 and 26 February 2015.  Therefore, there were a total of 627 days.  The injury stated in Form 7 was:-

“Fall with multiple injuries resulting in prolapsed intervertebral disc at L5/S1 with pain and numbness.”

It is apparent to me that the Assessment Board has not taken into account the neck problem of the applicant.  Otherwise, one would expect the Assessment Board to make explicit reference to it.  

50.  According to the schedule of medical certificates[84] prepared by the applicant’s solicitors, the sick leave period certified by the treating doctors at QMH, SPH and EH was between 25 May 2013 and 26 March 2015, after deducting overlapping days, the total number of sick leave was 671 days.  As regards the sick leave certificates, I have the following observations:-

(a) the first sick leave certificate was issued by QMH and the reason for the sick leave was “ortho condition”; [85]

(b) the second sick leave certificate was issued by SPH and the reason for the sick leave was “fell from stairs – multiple injuries”;[86]

(c) in subsequent sick leave certificates issued by SPH, the reasons for the sick leave up to 22 January 2014 were variously described as “back injury”, “sprain back” or “lower back pain”; [87]

(d) after 22 January 2014, the reasons given for the sick leave by SPH were mainly about “neck and back pain”; and

(e) between 12 February 2014 and 18 February 2015, the applicant was also granted sick leave by EH and the reason given was always “back and neck injury”.[88]

Medical evidence

51.  When Dr Cheng examined the applicant 7 October 2013, his prognosis of the applicant was that:-

“Given another two or three months for strengthening exercise, Pak should then reach maximum medical improvement. Pak should then be able to resume his pre-injury job.”

On the aforesaid basis, Dr Cheng made the following recommendation:-

“Sick leave is recommended from 25.5.2013 to end of the year 2013.”

52.  In the Joint Report,[89] Dr Chun opined that, on the basis that the applicant had only suffered “a minor injury”, the reasonable sick leave should not be more than 6 weeks.  On the other hand, Dr Fu said that, on the basis of “documents available [the applicant]had significant pain with different impairments during the sick leave period”, the sick leave issued by his treating doctors should be appropriate.  I note that Dr Fu’s opinion was based, partly at least, on documented assertions of pains made by the applicant.  As to this, I have already found that the applicant had a tendency to exaggerate the seriousness of his conditions. 

Assessment of the evidence

53.  In my opinion, when assessing the medical evidence, due weight should be given to the treating doctors who had the advantages (which the experts did not have) of seeing and assessing the applicant’s condition when the question of whether or not to grant sick leave was contemporaneously decided.  The assessment of the experts on the reasonableness of the sick leave, on the other hand, were made retrospectively and based on the medical reports prepared by the treating doctors and paramedics and the joint examination of the applicant which took place 15 months after the accident.  When assessing the necessity of the sick leave, account should be taken of the possibility of the applicant exaggerating his conditions during medical consultations with the treating doctors.  I note also that sick leaves granted to the applicant after 22 January 2014 were partly based on the applicant’s neck pain which I have found not having been caused by the accident. 

54.  Similarly, in my view due weight should also be given to Dr Cheng who was asked by the respondent to examine the applicant in early October 2013 when the applicant was still in the rehabitation stage.  Dr Cheng gave the opinion that the latter should be issued with further sick leave until the end of 2013.  It is clear, therefore, that Dr Cheng was of the view that the sick leave until end of 2013 would not be unreasonable.  However, I do not think that one should rely on Dr Cheng’s opinion and then jump to the conclusion that any sick leave after the end of 2013 would not be necessary.  This is because Dr Cheng also said,

“If needed, Pak is advised to be examined again in three months’ time, possibly with more medical information for treating doctors.”

55.  On the other hand, the opinion of Dr Chun that the reasonable sick leave period “should be no more than 6 weeks” appears to me to be overtly optimistic. If Dr Chun were right about this, then the applicant would not have required any more sick leave by the time he was examined by Dr Cheng.  As I said, Dr Cheng had the benefit of seeing the applicant during the rehabilitation period which Dr Chun had not.

56.  For reasons unknown, the respondent had not asked the applicant to undergo another medical examination until September 2014, which was almost a year later, when he was examined jointly by Dr Chun and Dr Fu.  Had it been otherwise, the court may have more evidence with which to consider whether the presumption arising from sick leave certificates is rebutted: see Kan Wai Ming v Hong Kong Airport Services Ltd.[90]

57.  Based on the aforesaid limited evidence available and the legislative intent that the risk of abuse should lie on the employer in cases of employee compensation, in my assessment the respondent has failed to discharge its burden of rebutting the presumption in s 10(2) as regards the sick leave certificates issued for the sick leave between 25 May 2013 and 22 January 2014 which was based solely on the applicant’s back problems. 

58.  As regards the sick leave granted after 22 January 2014, the issue is more complicated.  Had those leaves been granted solely on the basis of the applicant’s neck pain, I would have no difficulties disallowing them.  This is because of my earlier finding that the applicant’s neck pain was not caused by the accident.  However, the sick leaves were granted for “back and neck pain”. As the treating doctors have not been asked to testify, there is no evidence before me as to whether they would still have granted the relevant sick leaves to the applicant solely on the basis of his back pain at the time.  I find that the respondent has failed to rebut the presumption in s 10(2) in relation to the sick leave issued between 22 January 2014 and 31 August 2014.  In making this finding, I have taken into account that the applicant had exaggerated his conditions during the joint examination. 

59.  Nevertheless, based on the common opinion of Dr Chun and Dr Fu, what is clear is that by early September 2014 the applicant had already reached maximal medical improvement and that he no longer required any further treatment.  I note also that it is Dr Fu’s opinion that the applicant “will have on and off pain that requires symptomatic treatment on a need to basis”. (Emphasis supplied)  Dr Fu made no suggestion that the sick leave already issued to the applicant then should be further extended, not to say by as long as 7 months after the joint examination.[91] I note also that the applicant has not produced any primary records that he had attended any physiotherapy or occupational therapy as suggested by the treating doctors at EH, he having decided not to take any injection or surgical treatment.  As such, the applicant had not in fact received any active treatment from EH.  Furthermore, he decided not to attend any further consultation sessions at EH after a date had been fixed for his assessment by the Assessment Board.

60.  In all the circumstances, I am satisfied on balance of probabilities that the respondent has discharged their burden of rebutting the presumption in s 10(2) as far as the sick leave from 1 September 2014 onwards is concern. 

Compensation under s 10

61.  As regards the period of absence which I have found to be necessary,[92] the effect of s 10(2) of Cap 282 is that it is presumed to be one of total incapacity.  

62.  I have already found that the applicant has exaggerated his symptoms and disability.  These findings are made after having taken into account all the criticisms levelled at the credibility of the applicant by Mr Wong in his written submissions.[93] I am not going to deal with Mr Wong’s criticisms one by one here, as some of them having already been dealt with in the discussion of the medial evidence above.  However, I have the following observations to make about some of the criticisms:-

(a) I have not lost sight of the fact that the applicant had travelled on several occasions during his sick leave.  However, I do not consider the fact that he was able to travel means that he was also fit enough to work as a Fitness Manager;

(b) as regards the respondent’s allegation that the applicant had been involved in the business of Wifi Egg during his sick leave, I note that there is no direct evidence to support the allegation.  Furthermore, I am not satisfied that there is sufficient evidence to infer the alleged dishonest conduct that the applicant worked for Wifi Egg when he had became able to resume working but was still on sick leave paid by the respondent.  The fact that that he had travelled with his girl friend when she was doing business, had allowed his email account to be used, had gone to her work place and had attended her work-related social functions, even taken together, is not sufficient in my view to support a finding that he had worked for her business: see Nina Kung v Wong Din Shin[94]; and

(c) as regards whether the applicant could have managed to work as Fitness Manager during sick leave by limiting his duties to those which were administrative/sedentary in nature, the respondent had never canvassed that option or its viability with the applicant.  The applicant should not be criticized for not raising that option himself with the respondent.  When the applicant contacted the respondent at the end of 2015 for resumption of work, he was not given a reply.  With due respect, in my view it lies ill in the respondent’s mouth now to raise the option as an excuse for denying the applicant’s sick leave entitlement.  Secondly, I note also that the respondent’s fitness centre in Central occupies several floors and the applicant may need to walk up and down to different parts of the fitness centre when working.  Lastly, I have found that physical exertion formed an integral part of the applicant’s work as Fitness Manager. 

63.  Having considered all the relevant evidence, I find that the respondent has failed to discharge the burden of rebutting the presumption that the applicant’s certified sick leave between 25 May 2013 and 31 August 2014 was one of total temporary incapacity.  Therefore, I allow the compensation under s 10 for that period. 

64.  Thus, amount of compensation under this head is:-

$96,029.19 x 4/5 x 464 days/30 = $1,188,201.18

The respondent has made an advance payment of $557,045.54. Deduction shall be made accordingly: see Kan Wai Ming v Hong Kong Airport Services Ltd, ante.

AS REGARDS (d): LOSS OF EARNING CAPACITY

Evidence

65.  I accept Dr Chun’s opinion that the applicant does not require any walk aid, whether indoor or outdoor.  I also accept Dr Chun’s opinion that the applicant has exaggerated his impairments and disability.  Besides, I have found that the applicant’s neck problem was not caused by the accident. 

66.  On the other hand, as a foresaid I have found that the accident was a contributing cause to the applicant’s back pain.  I accept Dr Fu’s opinion to the extent that as a result of the applicant’s back injuries, he will have some difficulty returning to his previous employment.  This is because of my finding that physical exertion is a small yet integral part of his job as a Fitness Manager. 

67.  I take into account the applicant has got secondary education.  This is to view in juxtaposition with the significantly high level of income he was able to make as Fitness Manager.  I accept the applicant’s evidence that it would be difficult for him to find a new direct employment elsewhere as a Fitness Manager as it is more probable that a new employer will require him to start as a physical trainer again and to work his way up.  Judging from the level of income he had made as a physical trainer before his promotion, it appears to me that he had been a rather successful physical trainer as regards his ability to procure sales.  However, the work of physical trainer would involve even more physical exertion than that of a Fitness Manager.  Also, his own physical fitness may have a bearing on his ability to attract clients and his ability to assist them and to ensure their safety in training.

68.  In all the circumstance, doing the best I can, I find that the applicant has suffered a 5% permanent loss of earning capacity.  This is so, notwithstanding the apparent mistake in Form 7 that the prolapsed intervertebral disc at L5/S1 was a result of the applicant’s fall.  Therefore, I dismiss the respondent’s appeal under s18 of Cap 282. 

Compensation under s 9

69.  The applicant was aged 29 at the time of the accident and therefore under 40 years of age, the applicable multiplier is 96 months.  Thus, the s9 compensation of the applicant is calculated as follows:-

$23,580 x 96 months x 5% = $113,184.00

AS REGARDS (e): MEDICAL EXPENSES

70.  There is no dispute that the applicant has incurred medical expenses.  Based on the schedule prepared by the applicant’s solicitors, he is only claiming expenses relating to his hospitalisation and consultations at SPH and two visits to bone-setters, but not expenses incurred at EH.[95]

71.  The maximum amount to which the applicant is entitled under this head is $200 per day: see Schedule 3 of Cap 282.  Therefore, the applicant’s schedule is incorrect in the following aspects:-

(i) the amount claimed relating to hospitalisation (6 days) should be $1,200; and

(ii) there is double counting in respect of the following dates:-

16 June 2013

11 July 2013

3 September 2013

3 October 2013

18 February 2014

72.  It is submitted on the respondent’s behalf that there will be inconsistency between s 10 and s 10A if the applicant is entitled to medical expenses outside the sick leave period as found by the court to be necessary.  It is further submitted that the applicant’s claim of medical expenses under s 10A should be restricted to those incurred during the sick leave period which the court finds to be necessary under s 10.

73.  With due respect, s 10A only requires that medical expenses are incurred for the medical treatment in respect of personal injury caused to an employee by the accident in question.  Whilst there may be situation such that the need for further medical treatment would cease after sick leave, there is no legal requirement that medical expenses had to be incurred within the period of absence found to be necessary by the court under s10.  On the other hand, one can readily think of a situation where an employee may reasonably incur medical expenses even though he had not taken any sick leave. 

74.  Dr Chun’s opinion is that “no further treatment is required or will be effective in dealing with symptoms & signs that are grossly exaggerated and expanded”.[96] Dr Fu’s opinion is that the applicant “will have on and off pain that requires symptomatic treatment on a need to basis”.  In the present case, I note the fees claimed from 1 September 2014 onwards were only for medical consultation at SPH and not for medication or treatment.  The applicant received medication and physiotherapy from EH in 2014 in respect of which he made no claim for medical expenses.  I note also that the applicant continued to receive consultation from SPH (partly at least) for his neck pain which I have been found not caused by the accident.  In the circumstances, I find that the medical expenses incurred at SPH from 1 September 2014 onwards are not supported by the evidence of Dr Chun and Dr Fu.   

75.  Based on the evidence before me, whilst I accept that the medical expenses incurred before September 2014 were for his injuries as a result of the accident, I cannot be so satisfied as regards these incurred at SPH from 1 September 2014 onwards.  I am also not satisfied that they were either necessary or reasonable.  As such, I would only allow the medical expenses incurred between 25 May 2013 and 31 August 2014.  During that period, after removing the double-counting, there are:-

(a) 6 days of hospital;

(b) 24 treatments/consultation ($200 each); and

(c) 10 treatments/consultation ($150 each)

Therefore, the total of medical expenses allowed is:-

6 x $200 + 24 x $200 + 10 x 150 = $7,500

CONCLUSION

76.  The total amount of compensation that the respondent is to pay to the applicant is as follows:-

77.  Besides, the above total amount carries an interest at 4% per annum from the date of accident (25 May 2013) to the date of this judgment and thereafter at the judgment rate until full payment. 

Costs

78.  I make an order nisi that the respondent is to pay the applicant’s costs of this application, to be taxed if not agreed, with certificate of counsel. 

DCEC 494/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 494 OF 2014

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REASONS FOR RULING

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Introduction

1. This is about two summonses.  One was taken out by the respondent[1] for leave to file additional evidence after hearing but before judgment.  The other was taken out by the applicant[2] to strike out the respondent’s summons.

2. On 30 March 2016, after hearing submissions from both sides, I dismissed the respondent’s application with costs to the Applicant.  As regards the Applicant’s application, his counsel Mr Clough agreed that it was but the other side of the same coin of the respondent’s application and therefore I made no order as to costs.  I reserved the reasons for my ruling.  I now give the reasons as follows.

Factual background

3. The case is about the claim by the applicant against the respondent for employee’s compensation.  Shortly stated, the respondent operates a chain of fitness centres in Hong Kong and the applicant was employed by the respondent as Fitness Manager at its fitness centre in Central.  On 25 May 2013, whilst at work the applicant had an accident of slip and fall on a flight of staircase and sustained injuries as a result. 

4. The applicant was assessed by the Employee’s Compensation (Ordinary Assessment) Board (“the Assessment Board”) as having suffered a 5% loss of earning capacity[3]. The Assessment Board also certified the applicant’s sick leaves for a total of 627 days[4]. Apart from the said certified sick leave periods, the applicant also claims other sick leaves granted by medical practitioners which he says qualified as temporary incapacity.

5. The judgment on liability has already been entered by consent[5]. The case came before this court for assessment of compensation pursuant to ss 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 as well as determination of the respondent’s appeal under s 18 against the Certificate of Assessment.[6]

6. The assessment was heard between 23 and 26 November 2015.  The applicant gave evidence and was cross-examined at length by Mr Wong, counsel for the respondent.  One of the areas upon which he was cross-examined was his travel movements during sick leave.  The defence case that was put to him was that:-

(i)  if he was fit enough to travel, he would also be fit enough to resume work as Fitness Manager, the duty of which post was allegedly mainly managerial rather than physical; and

(ii)  some of the applicant’s trips related to Wifi Egg (the business of his girl friend) and that he was assisting in that business during his sick leave period.

7. The applicant gave evidence that he had been on pleasure trips with his girl friend and family on 4 to 5 occasions after the accident.  He denied that any of the said trips were business in nature.  Mr Wong had asked the applicant about his passport.  However, the applicant said that his old passport which was used for the trips had already expired and that the new passport he had with him was issued in 2015.  In the event, the applicant was not asked to produce his old passport in court.

The additional evidence

8. The additional evidence which the respondent now seeks to adduce is the applicant’s immigration movement record covering the period between 25 May 2013 and 26 May 2015[7]. According to the respondent, the movement record (bearing the date of 12 November 2015) was first disclosed by the applicant on 23 February 2016 in his witness statement of the parallel common law claim.  The record shows that the applicant had during his sick leave travelled on 12 occasions covering a total of 48 days.  This is to contrast with the applicant’s evidence in court that he had travelled with his girl friend and family on 4 or 5 occasions after the accident.

9. The respondent alleges that the applicant had failed his duty of continuing disclosure by failing to disclose the movement record before the hearing of the assessment, in spite of the fact that the respondent had requested for the same since 21 July 2015 but to not avail.  References were made to Vernon v Bosley (No 2)[8] and Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors[9].

10. The respondent also relies on Secretary of State for Trade and Industry v Paulin[10] wherethe English Court of Appeal said,

“The principle applicable to an application to admit fresh evidence after hearing but before judgment is handed down is no more restrictive than would be applied by the Court of Appeal on appeal from a judge.”

It is submitted that in an application like the present one, it is relevant for the court to consider whether the evidence was available at the original trial, whether if admitted it would probably have an important influence on the result of the case and whether it was apparently credible.

11. Mr Wong contends that the aforesaid criteria are met in the present case.  It is submitted that the respondent could not have the movement record earlier because the applicant had not been operative; that the movement record would be relevant to the issues at the trial in that:-

(i)  if the applicant was fit enough to travel, he would also be fit enough to work;

(ii)  the frequency of the travels shows that they were business in nature, indicating that the applicant was helping his girl friend in her business; and

(iii)   the record has a bearing on the applicant’s credibility as it shows that he had not been truthful in his evidence.

Lastly, it is submitted that there could not be any question about the credibility of the movement record which was obtained from the Immigration Department.

12. It is also Mr Wong’s contention that the findings of this court about the appropriateness of the applicant’s length of sick leave would invoke the operation of the doctrine of “issue estoppel”, so that the respondent would be bound by those findings in the common law personal injury claim.  Reliance is placed on Mohammad Amjad v John M Pickavant & Co[11]. This provides another reason for the court to exercise its discretion in favour of the respondent to allow the admission of the additional evidence.

13. I note that it is Mr Wong’s position that, if the court were to accede to the respondent’s application to adduce additional evidence, then the applicant should not be allowed to give further evidence to explain his movement record, as the applicant had already had full chance to explain his travel history during cross-examination and that the case has already been closed.

Consideration

14. Like Poon J (as he then was) in Keen Lloyd Energy Limited (formerly known as Keen Lloyd Investments Ltd and further formerly known as Keen Lloyd Ltd) v Bank of China (Hong Kong) Ltd (formerly known as Sin Hua Bank Ltd, Hong Kong Branch)[12], for the purpose of this application, I do not think that I need to decide or come to a definite view as to whether Paulin’s case should be followed in Hong Kong.  This is because in my view, the applicant movement record on its own could not have impacted on the outcome of the assessment of damages.  My reasons are as follows:-

(a)  as conceded by Mr Wong during his submission, the relevant part of the cross-examination of the applicant is not “water-tight”.  His evidence was not that he had only 4 or 5 trips during his sick leave period or that his physical condition did not allow him to travel more.  The applicant’s evidence does not preclude the possibility that he had in fact travelled on more than 4 to 5 occasions during his sick leave;

(b)  it is difficult to see how one can equate the ability to travel with the ability to work as a Fitness Manager; and

(c)  the movement record does not show the purpose of the travels and it is difficult to see how one can infer that they were business trips simply from their frequency.

On the other hand, it would be unfair to the applicant if his movement record were admitted being at the same time allowing him an opportunity to explain its contents.  In my view, the admission of the movement record as its own would tend to distort the evidence rather than facilitating this court in resolving the factual disputes.

15. As regards Mr Wong’s submission on “issue estoppel”, as pointed out by Master Marlene Ng in Pickavant’s case, the doctrine is always case-sensitive.  It is not confined to the final legal conclusion in the judgment but concluded all matters which were necessary to decide and which were actually decided as the groundwork of the decision itself.  As pointed out by My Clough, in the assessment of damages under Cap 282, the applicant has the benefit of the deeming provision about temporary incapacity as contained in s10(1) of the Ordinance.  However, the same provision is not available to the applicant in the parallel common law claim so that when it comes to the trial of the latter, the applicant will have to prove the appropriateness of the sick leave by adducing evidence.  As such, I do not think that the finding of this court on the appropriateness of the applicant’s sick leave period would bind the parties in the common law proceedings.

16. Furthermore, even assuming Paulin’s case is applicable, I do not think that it is appropriate for this court to exercise its discretion in favour of the respondent in the present case.  As stated in the applicant’s affirmation filed in opposition to the respondent’s application, the respondent had requested for his movement record as early as on 21 July 2015, without stating the reasons for their request.  Despite the initial refusal of the applicant’s solicitors to accede to the request, the respondent had never sought a specific discovery.  No satisfactory explanation has been given by the respondent as to why they had failed to do so.  If there had been a specific discovery, the respondent would probably have the movement record by the time the assessment was heard in late November 2015.

17. Lastly, I agree with Mr Clough that the present application of the respondent, if acceded to, would recreate procedural unfairness to the applicant.  The following chronology, which is taken from the applicant’s affirmation, is relevant:-

(a)    The case was first set down in running list on 20 May 2015 and was listed to commence on 6 August 2015 with two days reserved.

(b)  On 29 June 2015, the applicant disclosed his employment with Wifi Egg which was to commence on 1 July 2015. 

(c)  In the respondent’s opening filed on 5 August 2015, the case that was put forward by them was simply that (1) the applicant was capable of resuming full employment during his sick leave period, whether with the respondent or other parties; and (2) even if, which is denied, the applicant was not capable of resuming full employment with the respondent during his sick leave period, the applicant was capable of resuming the managerial and administrative aspects of his duties with the respondent.  Absent from the opening was any allegations that the applicant had assisted in the Wifi Egg business during his sick leave or that any of his trips had been business in nature.  This was so, even though the respondent had already got an Investigation Report (dated 9 April 2015) by a private detective who had seen the applicant going to the office Wifi Egg on different occasions.

(d)    On 6 August 2015, nothing was raised by the respondent about the applicant’s alleged involvement with Wife Egg and the alleged business trips.  As such, the applicant had not been forewarned about the allegations.   The case was adjourned by consent simply for the parties to make further discovery in relation to a settlement deal made between the applicant and the respondent in the Labour Tribunal^[13] and also for the parties to have further negotiation concerning the applicant’s claims against the respondent. 

(e)  On 16 November 2015, the first day of the resumed hearing, that the respondent made two applications: the first one was for them to file of further statements concerning certain alleged malpractices of the applicant during his employment; and the second one was for proposed interrogatories relating to the applicant’s movement records.  The applicant had not been prepared to meet the allegations raised in those applications.  The respondent’s two applications could not be acceded to without causing further delay in the matter.  Bearing in mind the objectives of the Civil Justice Reform, this court dismissed the two applications on the grounds of irrelevance and lateness.

In my view, the present application would be tantamount to a “backdoor” way for the respondent to introduce evidence relating to the application for interrogatories which this court has already refused.

Conclusion

18. Based on the above, I refuse the respondent’s present application.

Costs

19. I have already made an order that the applicant should have his costs forthwith in relation to the respondent’s application, with counsel certificate, to be taxed if not agreed.

20. As rightly conceded by Mr Clough, the applicant’s summons for striking out is not strictly necessary.  I made no order as to costs as regards that application.