LI FUK KEUNG v. YIK FAT REMOVAL LTD AND ANOTHER

DCEC1290/2016

[2019] HKDC 831

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO.1290 OF 2016

____________

IN THE MATTER OF AN APPLICATION BETWEEN
	LI FUK KEUNG	Applicant
and
	YIK FAT REMOVAL LIMITED	1st Respondent
	EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD	2nd Respondent

____________

Before: Deputy District Judge S.H. Lee in Chambers (Open to Public)

Date of Hearing: 12 June 2019

Date of Decision: 21 June 2019

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DECISION

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1.  By summons filed on 14 May 2019 (the Summons), the Employees Compensation Assistance Fund Board (the Board) applied to vary 2 orders nisi as to costs at para 127(1) & (2) of my judgment dated 30 Apr 2019 (the Judgment).

2.  By the Judgment, I find that the Applicant Mr Li Fuk Keung (Mr Li) was employed by the 1^st Respondent company (R1) as a casual removal worker on 9 Oct 2014 and that personal injury by accident arising out of and in the course of that employment had been caused to Mr Li on that day. I entered judgment in Mr Li’s favour against R1 in the sum of $611,292 together with interest.

3.  For the background of these proceedings, I refer to the Judgment whose abbreviations are, unless otherwise stated, adopted in this decision.

4.  By para 127(1) of the Judgment, I make my 1^st order nisi that R1 do pay Mr Li the costs of this application, including all reserved costs and the costs of this trial, at such amount to be taxed if not agreed (the 1^st Order Nisi).

5.  The Board applied to vary it to “R1 do pay (a) Mr Li and (b)the Board the costs of this application, including all reserved costs and the costs of this trial, at such amount to be taxed if not agreed (italics supplied)” (1^st Variation).

6.  Mr Roger Phang (Mr Phang) appeared for the Board at the hearing of the Summons (and at trial). He added at the hearing that the Board also seeks certificate for counsel as part of the costs of the trial in the 1^st Variation.

7.  R1 did not turn up at the hearing of the Summons (as it did for the rest of these proceedings). But I am satisfied on affidavits of service before me that it had been duly notified of this hearing. I therefore proceeded with it in R1’s absence.

8.  Ms Christina Lee (Ms Lee) appeared for Mr Li at the hearing of the Summons (and at trial). She took no stance on the 1^st Variation.

9.  By para 127(2) of the Judgment, I make my 2^nd order nisi that the Board do pay Mr Li the costs of this application as from 29 Aug 2017, including all reserved costs and the costs of this trial, at such amount to be taxed if not agreed (the 2^nd Order Nisi).

10.  The Board applied to vary it to “There be no order as to costs between Mr Li and the Board” (2^nd Variation).

11.  Ms Lee opposed the 2^nd Variation and asked that the 2^nd Order Nisi be made absolute.

Board’s submissions

12.  Mr Phang argued that R1 ought to be aware that the Board may apply to join to these proceedings as R1 has failed to purchase employees’ compensation insurance. As the Board did join and run at trial essentially R1’s case by calling Mr Tsoi, R1’s director and shareholder, R1 had thereby benefited at public expense.

13.  It is unjust, he argued, for R1 to be so benefitted when it had not purchased insurance in the first place for its employees. Were the 1^st Variation not made, other uninsured employers would also be encouraged not to defend and let the Board fight their cases in court at the expense of the public.

14.  The 1^st Variation ought therefore, he argued, to be allowed.

15.  On the 2^nd Variation, Mr Phang submitted at length that the Board has statutory duties to follow in the Employees’ Compensation Assistance Ordinance, Cap.365 (ECAO).

16.  As the Employees Compensation Assistance Fund (the Fund) administered by the Board under ECAO may be financially affected by the outcome of these proceedings, it was, he argued, reasonable for the Board to join to these proceedings to protect the Fund and to enable the contrary case, and evidence, of R1 to be placed and fully canvassed before this court for determination.

17.  The Board, he emphasized, has no personal knowledge of the Accident and Mr Li has produced no direct evidence of the Accident except his words. Although it turns out that Mr Tsoi was not believed by this court and the Board’s reliance on him was misplaced with the benefit of hindsight, Mr Phang submitted that Mr Tsoi’s evidence was capable of belief before trial. Mr Tsoi’s performance as a witness at trial could not be predicted beforehand.

18.  Mr Li, said Mr Phang, has to incur costs anyway to prove his case in these proceedings. And, had R1 elected to defend in person or through lawyers, it could not, he argued, be suggested that Mr Li need not incur costs to deflect such challenge.

19.  Mr Phang stressed that Mr Li could recover his costs in these proceedings as part of his application for payment of unpaid compensation from the Fund under s.16 of ECAO, if he is unable to recover the awarded compensation from R1 after taking reasonable proceedings in the circumstances.

20.  Unlike the case for relief payment in s.20A of ECAO, which excludes costs of personal injuries proceedings under s.20B(3)(b) of ECAO, the Board, Mr Phang explained, would also pay to Mr Li such costs R1 was ordered to pay him in the Judgment for these proceedings when the Board approves and makes payment of unpaid compensation to Mr Li from the Fund in future: see s.23(1)(b) of ECAO.

21.  Hence, Mr Li, he stressed, is protected to recover his costs of these proceedings even had the 2^nd Order Nisi not been made by this court against the Board.

22.  The 2^nd Order Nisi, if made absolute, Mr Phang submitted, has the adverse effect of circumventing the statutory scheme of application and payment of unpaid compensation from the Fund in ECAO. It creates a separate costs liability on the Board which is not payable under Part IV, or s.8, of ECAO and enables Mr Li to recover his costs from the Board outside such statutory scheme.

23.  Mr Phang submitted that such costs order against the Board disturbs the statutory scheme in 4 ways.

24.  First, it removes the limitation that these costs be taxed only on party and party basis: s.23(5) of ECAO.

25.  Secondly, it accelerates the time of payment by the Board as it could be enforced against the Board before Mr Li’s application for unpaid compensation from the Fund is approved.

26.  Thirdly, it elevates the priority of such costs order against the Board over and above payment of unpaid compensation, if any, due to Mr Li from the Board in future (and over and above payment from the Board to other worthy applicants): s.26 of ECAO.

27.  Fourthly, it deprives the Board of its right of subrogation against R1 under s.37 of ECAO, which right the Board could avail of had it paid such costs to Mr Li in his application for payment of unpaid compensation under Part IV of ECAO.

28.  Mr Li, Mr Phang argued, suffers no prejudice if he is to be deprived of the 2^nd Order Nisi against the Board and left to recover such costs in an application for payment of unpaid compensation from the Fund, if he is unable to recover them from R1 in future.

29.  The 2^nd Variation, Mr Phang submitted, gives effect to the statutory scheme of ECAO and the legislative intention behind it to protect the Fund and ought to be allowed.

Submissions for Mr Li

30.  Ms Lee first reminded this court that there is jurisdiction to order costs in Mr Li’s favour against the Board as a party to these proceedings.

31.  In the exercise of this court’s discretion to award costs, the primary rule is that costs follow the event unless there are circumstances persuading the court to rule otherwise.

32.  The Board is a losing party, and Mr Li the successful party, after trial.

33.  It is, Ms Lee argued, a proper exercise of discretion for this court to make the 2^nd Order Nisi following the event as from the date of joinder of the Board.

34.  After its joinder, the Board, said Ms Lee, had taken an active part in these proceedings, contesting both liability and quantum of Mr Li’s application, necessitating joint expert medical report and a 3-day-long trial attended by counsels for Mr Li and the Board.

35.  It is, she argued, just and reasonable for the Board to pay Mr Li’s costs when it saw fit to put forwards, and rely at trial, the “totally incredible” defence of Mr Tsoi and finally lost on both liability and quantum in the end.

36.  The Board’s intervention had prolonged these proceedings and increased the costs incurred by Mr Li. It is, she stressed, no answer for the Board to argue that R1 could have defended and would have anyway caused Mr Li to incur costs when, in fact, R1 had elected not to do so.

37.  To the contrary, it is, she emphasized, unjust for the Board to walk away after losing the trial without paying the costs of Mr Li. It cannot, she stressed, have the best of both worlds.

38.  The 2^nd Order Nisi would, she pointed out, also be taxed on a party and party basis like any payment of costs from the Fund in any application for payment of unpaid compensation under s.16 of ECAO.

39.  While the 2^nd Order Nisi, if made absolute, could accelerate the timing of payment of such costs by the Board, Ms Lee pointed out that Mr Li has so far not received a penny of compensation though he was injured as early as in Oct 2014.

40.  Because of the Board’s intervention, it has already taken longer time for these proceedings to come to trial than it is otherwise the case.

41.  Even after winning the trial, Mr Li has to take further time  and incur further costs to take reasonable proceedings in the circumstances against R1[1] to show that he is unable to recover compensation from R1 before he can apply for payment from the Fund under s.16 of ECAO and seek at the same time to recover his costs of these proceedings from the Board.

42.  No issue of priority among competing applicants for payment out from the Fund arises, said Ms Lee, before this court as there is no suggestion or evidence that the Board has insufficient money in the Fund today to meet all applications for payment under Part IV of ECAO it has received. This court should, she argued, pay no heed to remote possibility raised by Mr Phang.

43.  Though the Board enjoys no right of subrogation against R1 had it paid costs to Mr Li pursuant to the 2^nd Order Nisi and not under Part IV of ECAO, Ms Lee pointed out that the Board enjoys at common law the right to seek contribution from R1 (albeit for 50% of Mr Li’s costs it has paid), as both the Board and R1 are liable to pay Mr Li’s costs jointly and severally under the 1^st and 2^nd Orders Nisi.

44.  Mr Li, Ms Lee reminded this court, is legally-aided in these proceedings and, thus, Mr Li’s costs, subject to any contribution, if any, to be made by him and the first charge enjoyed by the Director of Legal Aid, would also be paid by the public. The expenses of legal aid are to be met from the general revenue and require approval by the Legislative Council every year. The Fund is to be met mainly from employees’ compensation insurance levies instead.

45.  All in all, Ms Lee submitted that there is no good reason for the general rule of costs following the event to be departed in this case and the 2^nd Order Nisi should be made absolute.

Discussion

Applicable rules and principles

46.  There is jurisdiction with this court to award costs against the Board after the Board has joined as a party to these proceedings under s.25A(a) of ECAO. The provisions of ECAO are no impediment of this court’s discretion to award costs against the Board: Jiang Zhong v Yeung Chun Leung[2018] 1 HKLRD 886, 902-3, para 6.13.

47.  The above ruling is part of the ratio decidendi of Jiang Zhong, supra, and the Court of Appeal has declined to depart from it: Wo Chun Wah v Employees Compensation Assistance Board[2019] 1 HKLRD 48, 60.

48.  Accordingly, it is binding on this court and any contrary argument cannot be run before me, in so far Mr Phang has attempted to do so.

49.  By s.53(1) of District Court Ordinance, Cap.336, the costs of and incidental to all proceedings in the Court are in the discretion of the Court, and the Court has full power to determine by whom and to what extent the costs are to be paid.

50.  In exercising this discretionary jurisdiction, this court shall be guided by well-established principles on how costs are to be awarded and make costs order in the context of each case: Jiang Zhong, supra, para 6.10 at pp.901-2; Wo Chun Wah, supra, para 30 & 34 at pp.56-7.

51.  In final proceedings, under O.62 r.3(2) of the Rules of District Court, Cap.336H (RDC), the Court shall, subject to O.62 of RDC, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.

52.  That costs should follow the event and be recovered by the successful party is the starting point or the most important criterion: Jiang Zhong, supra, para 6.11(1) at p.902.

53.  In Jiang Zhong, supra, the Board was considered on appeal the successful party. In line with well-established principle of costs following the event, its appeal against costs order made against it below was allowed: para 6.21 at p.904.

54.  In exercising this court’s discretion as to costs of these proceedings, it shall also take into account such matters specified in O.62 r.5 of RDC, including conducts of the parties: Wo Chun Wah, supra, para 31 at pp.56-7. Litigation conduct is a relevant and important consideration when the court exercises its discretion on costs in our context: Hussain Kamran v Khan Amar and another, unreported, CACV 255/2014, 11 Apr 2017, para 6(5) at p.4.

55.  As a matter of approach, it is proper for this court to give recognition to the special position of the Board as may differentiate it from ordinary litigants: Wo Chun Wah, supra, para 34 at p.57.

56.  This court should be conscious that the Board, in the proper discharge of its statutory duty to administer the Fund, will have to intervene in appropriate cases to test or defend the claimant’s case: Hussain Kamran, supra, para 6(5) at p.4.

1^st Variation

57.  As between R1 and the Board, there is, for obvious reasons, no event on which a costs order can be made to follow.

58.  There is no suggestion or evidence before me that R1 had requested the Board to join as a party to these proceedings to run R1’s defence at trial.

59.  However, under s.40 of the Ordinance, R1 is required to purchase employees’ compensation insurance for its employees including Mr Li. Hence, I agree with Mr Phang that the primary responsibility of compensating Mr Li for his injuries in the Accident lies with R1 and no others.

60.  R1 has plainly failed to discharge its primary responsibility. Mr Tsoi had so admitted in the box[2]. And R1 had not produced its employees’ compensation policy pursuant to a discovery order made by this court on 8 Feb 2019[3].

61.  R1 (or Mr Tsoi) had, I think, misled the Board by providing it with false information about its relationship with Mr Li and the circumstances of the Accident, causing the Board to run R1’s case at trial at public expense.

62.  For these reasons, I agree with Mr Phang’s submissions at para 12 & 13.

63.  The 1^st Variation is, I agree with him, appropriate and I so order.

2^nd Variation

64.  Moving to the 2^nd Variation, Ms Lee’s submissions at para 30 & 31 are well supported by the authorities and the rules and cannot, I think, be doubted.

65.  I have also no doubt that Mr Li is the successful party, and the Board a losing party, after trial. Mr Phang has not advanced any contrary submission on this point.

66.  The 2^nd Order Nisi is therefore, I agree with Ms Lee, the starting point for the exercise of my costs discretion on well-established principles and it is incumbent on Mr Phang to persuade me to depart from it in the circumstances of this case.

67.  I am conscious that the Board has its statutory duties to administer the Fund and it intervened in these proceedings in order to protect the Fund.

68.  Before the joinder of the Board, an unless order had been made against the unrepresented and absent R1 for judgment to be entered against it on liability if it failed to file its Answer. Due to the provisions in ECAO, the Board has a pecuniary interest in the outcome of these proceedings and did not want Mr Li’s claim to go uncontested for want of participation by R1[4].

69.  On 29 Aug 2017, the Board was joined as the 2^nd Respondent to these proceedings pursuant to s.25A(a) of ECAO to take over the defence of R1 to contest the issues of liability and quantum. Further directions were given at the same time, including giving leave to the Board to file an Answer.

70.  On 20 Oct 2017, the Board filed its Answer positively pleading R1’s case on liability (or essentially Mr Tsoi’s would-be evidence in his witness statement dated Mar 2018 i.e. he did not know Mr Li, he never met Mr Li on 9 Oct 2014, R1 never employed Mr Li, and Mr Li never met any alleged accident at work on 9 Oct 2014[5]).

71.  By reasons of that, no default judgment was entered against R1 on liability and a trial, as opposed to an assessment of compensation, was thus required notwithstanding that R1 has never appeared in these proceedings.

72.  And, due to the Board’s intervention, the Joint Orthopedic Report dated Apr 2018 was ordered by court as opposed to a single expert report of Dr Miu for Mr Li as would otherwise be required by the Appeal against the assessment in Form 9.

73.  In May 2018, a witness statement of Mr Tsoi solely dealing with liability and a witness statement of Mr Li dealing with both liability and quantum were filed. Enclosed to Mr Li’s statement is a material piece of evidence i.e. the Mobile Record that was considered at various places of the Judgment[6].

74.  In July 2018, these proceedings were set down in the fixture list for trial in Mar 2019.

75.  In Oct 2018, Ms Lee was assigned by the Director of Legal Aid to act as counsel for Mr Li.

76.  On 2 Jan 2019, a mere 5 days before pretrial review (PTR) scheduled on 7 Jan 2019, the Board applied by summons to adduce supplemental witness statement of Mr Tsoi again dealing solely with liability, including the Mobile Record, on the basis of receiving further information from Mr Tsoi[7].

77.  At PTR hearing, leave was given to the Board to adduce the supplemental witness statement of Mr Tsoi and for Mr Li to file a supplemental witness statement in reply with costs in the cause. On 11 Feb 2019, Mr Li filed his supplemental witness statement, dealing mostly with liability including the Mobile Record.

78.  In early Mar 2019, the Board obtained the issue of subpoena to call Mr Tsoi as its witness at trial.

79.  During the 3-day-long trial, in terms of evidence and submissions, more time was spent on liability than on quantum. Mr Tsoi was called by the Board. Mr Li was cross-examined extensively by Mr Phang on liability (and relatively less on quantum[8]) and his credibility attacked. Mr Phang asked for dismissal of Mr Li’s claim in his closing submissions.

80.  Considering these litigation conducts of the Board since, and due to, its joinder, I cannot but agree with Ms Lee’s submissions at para 34, 36 and 40.

81.  Mr Phang’s submission of R1 defending these proceedings in person or through lawyers at para 18 is wholly contrary to the facts and I reject it.

82.  Indeed, the Board not only took an active part in these proceedings but also, in my view, adopted an adversarial role. Not only did it test Mr Li’s case on quantum or put it to strict proof, it also advanced a contrary case on liability and called Mr Tsoi to prove it. By its counsel, it attacked Mr Li’s credibility and asked for his claim to be dismissed.

83.  Had Mr Li’s claim been dismissed by this court, I have no doubt the Board would apply to have its costs paid by Mr Li in order to protect the Fund. Again, I cannot but agree with Ms Lee’s submission at para 37.

84.  Though made in the context of an approval of settlement reached in personal injuries proceedings, one cannot but also agree with Mr Justice Bharwaney’s judgment in Kwan Kam Pui v Fung Man & others [2014] 6 HKC 361, 382C, 382E & 383B-C. If I may borrow the words of his lordship, by reason of the Board adopting an adversarial role in these proceedings, it is right that it should be ordered to pay costs if it takes up unmeritorious points of defence which are rejected by this court. The risk of an adverse order on costs is a risk that it must accept if it elects to join to these proceedings to prevent them from going uncontested. It would be unfair to Mr Li not to have his costs against the Board, whose active participation had increased his costs to prosecute these proceedings to judgment.

85.  I fully appreciate the difficulties and limitation faced by the Board in assessing an application filed by an applicant like Mr Li and in assessing information supplied to it by an alleged employer like R1 (or by Mr Tsoi). That had been stressed in para 17 by Mr Phang.

86.  But, for reasons I have explained in the Judgment, I have great reservation whether the Board had properly assessed the evidence of Mr Tsoi before relying on it and calling him as its witness at trial. After all, it should always be remembered that R1 (and Mr Tsoi) is an interested party with its own motive to serve^[9].

87.  After Mr Li in Feb 2019 filed his supplemental witness statement proving that the Mobile Record was registered in the name of his son, it should, one thinks, be clear to those advising the Board that Mr Tsoi had no plausible explanation to those numerous calls between Mr Li and him as recorded in the Mobile Record.

88.  It is, in my views, a serious matter for the Board to intervene not only on quantum but also on liability, the latter course most likely involving attack on the credibility of the injured, prolonging the time required to bring the proceedings to trial and escalating the costs of the proceedings.

89.  While the Board has its statutory duties to administer and protect the Fund, it should not, I think, overlook at the same time that the Fund was set up in the first place as a scheme of last resort for the injured employees to obtain payment of compensation: Jiang Zhong, supra, para 3.2 at p.891.

90.  An ill-advised intervention by the Board on liability could have much adverse effect on the injured employee on his/her long road to obtain compensation from the employer and, in the last resort, from the Fund. It is to be hoped that all such decisions would be taken seriously and responsibly after careful consideration by the Board, and regularly reviewed and reconsidered as the case progresses.

91.  For present purpose, I would, however, not hold against the Board on the 2^nd Variation for my reservation in para 86 & 87. It suffices to stress that all such unmeritorious points of defence advanced by the Board on the basis of Mr Tsoi’s evidence were ultimately rejected by this court after trial.

92.  Now that the risk accepted by the Board by its conscious decision to intervene to these proceedings on both liability and quantum has materialized by its losing the trial. Is there any good reason for the Board not to bear the risk it accepted?

93.  Mr Phang has sought to rely on the statutory scheme of application, payment, priority and subrogation in ECAO, which, he stressed, should be preserved and followed.

94.  However, I do not agree that they are sufficiently good reasons in the circumstances of this case for me to depart from the starting point of costs following the event.

95.  By applying to intervene as a party to these proceedings in the first place, the Board must also, in my views, accept the risk of possible adverse costs order made against it after trial to be enforced against it outside the statutory scheme of ECAO. That is the short and simple answer to Mr Phang’s submission at para 22 & 29.

96.  Secondly, for Ms Lee’s contrary submissions at para 38 & 42, which I wholly agree, the 1^st and 3^rd complaints of disturbance of the statutory scheme of ECAO raised by Mr Phang at para 24 & 26 simply cannot stand.

97.  Though Ms Lee (and I) agree with Mr Phang’s observations at para 19, 20, 21, 25, 27 & 28, one cannot overlook, I agree with her, the adverse effect in terms of time and increased costs already inflicted on Mr Li by reason of the Board’s intervention said in para 39 & 40, and the further time and costs to be spent by him to obtain payment of compensation from R1 in order to apply for costs of these proceedings to be paid from the Fund.

98.  Further, like any other successful litigants, there is nothing unjust for Mr Li to obtain against the Board a costs order which he can enforce any time after the judgment. That is his normal fruit of success after trial. It would likewise apply if the Board obtains a costs order against Mr Li after winning the trial.

99.  And Ms Lee is right at para 43 that the Board is not without remedy after it pays Mr Li’s costs pursuant to the 2^nd Order Nisi. It nonetheless enjoys at common law a right of contribution from R1 to the extent of 50% of such costs it has paid Mr Li: Hussain Kamran, supra, para 6(2) at p.3.

100.  Considering the litigation conducts of the Board as from its joinder, I do not consider it fair or right that my discretion should be so exercised to protect the Board not only fully as to its own costs as against R1 (the 1^st Variation I agree has already protected the Board on that), but also fully as against Mr Li’s costs.

101.  There is all the more so when one bears in mind that the real contest is between one government department and a statutory body both funded by the public one way or another. Is the legal aid fund not deserved to be protected too?

102.  All things considered, including the special position of the Board with regard to the Fund it administers and the statutory scheme of the ECAO, I remain of the view that the general rule of the loser paying the winner should still prevail and I decide to make the 2^nd Order Nisi absolute.

Disposition

103.  Accordingly, I allow para 1 of the Summons and order that the 1^st Order Nisi in para 127(1) of the Judgment be varied to “R1 do pay (a) Mr Li and (b) the Boardthe costs of this application, including all reserved costs and the costs of this trial with certificate for counsel, at such amount to be taxed if not agreed”.

104.  And I dismiss para 2 of the Summons and make absolute the 2^nd Order Nisi at para 127(2) of the Judgment.

Costs of the Summons

105.  Mr Phang does not resist Ms Lee’s application for costs of the Summons in the event she successfully opposes the 2^nd Variation. As between the Board and R1, the Board is the successful party on the 1^st Variation and I shall also follow the general rule of costs following the event.

106.  I therefore make the following costs orders on the Summons:

(1)   R1 do pay the Board the costs of and incidental to para 1 of the Summons, including the costs of this hearing with certificate for counsel, at such amount to be taxed if not agreed;

(2)   The Board do pay Mr Li the costs of and incidental to para 2 of the Summons, including the costs of this hearing with certificate for counsel, at such amount to be taxed if not agreed; and

(3)   Mr Li’s own costs shall be taxed in accordance with Legal Aid Regulations.

107.  Finally, I thank Ms Lee and Mr Phang for their submissions.

	(LEE Siu-ho)
	Deputy District Judge

Ms Christina Lee, instructed by L & L Lawyers, and assigned by the Director of Legal Aid, for the applicant

The 1^strespondent was unrepresented and did not appear

Mr Roger Phang, instructed by P.C. Woo & Co, for the 2^nd respondent

DCEC1290/2016

[2019] HKDC 562

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO.1290 OF 2016

____________

IN THE MATTER OF AN APPLICATION BETWEEN

	LI FUK KEUNG	Applicant
	and
	YIK FAT REMOVAL LIMITED	1st Respondent
	EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD	2nd Respondent

____________

Before:

Deputy District Judge S.H. Lee in Court

Dates of Hearing :	8, 11 & 12 March 2019
Date of Judgment :	30 April 2019

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JUDGMENT

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1.  Mr Li Fuk Keung (MrLi), the applicant, claims that he was employed by 1^st respondent company (R1) as a casual removal worker, and that he has suffered personal injuries by accident arising out of and in the course of that employment, on 9 Oct 2014.

2.  Mr Li applies for compensation under s.9, 10 & 10A of Employees’ Compensation Ordinance, Cap.282 (the Ordinance). He also appeals against Certificate of Review of Assessment dated 1 Jun 2017 (Form 9) pursuant to s.18 of the Ordinance (the Appeal).

3.  R1 has never appeared in these proceedings or in this trial. But I am satisfied that R1 had been duly informed of this trial and I therefore proceeded with it in its absence.

4.  On 29 Aug 2017, the Employees Compensation Assistance Fund Board (the Board) was joined as 2^nd respondent to take over the defence of R1 to contest the issues of liability and quantum[1]. At this trial, the Board called R1’s sole shareholder and director, Mr Tsoi Hau Choi (MrTsoi), as its only factual witness.

5.  In gist, Mr Tsoi denied knowing Mr Li, denied ever meeting Mr Li on 9 Oct 2014, denied R1 ever employing Mr Li, and denied Mr Li ever having any alleged accident at work on 9 Oct 2014.

Background facts

6.  On 9 Oct 2014, R1 had an order (the Order) to provide removal services at Block A, Po Yip Building, Tsuen Wan (the Building). R1 arranged 2 trunks with registration numbers KT523 (KT523) and MK3379 (MK3379) (collectively the Two Trucks) to carry its workers and tools to the Building. According to records of the Building, KT523 entered the 3/F carpark of the Building (the Carpark) at 0821 hours and departed at 0959 hours, and MK3379 entered at 0815 hours and departed at 1000 hours.

7.  On 13 Oct 2014, Mr Li signed a notice (the Notice) and a declaration (the Declaration), both filled by his younger sister on his behalf, notifying Labour Department of his having accident at work with R1 in Tsuen Wan industrial district on 9 Oct 2014.

8.  Mr Li was born in the Mainland in June 1959 and aged 55 on 9 Oct 2014. He was married. He has one daughter and one son. He has not finished primary 3 educations in China. He can only read and write simple Chinese. He immigrated to Hong Kong in about 1990.

9.  At 1216 hours on 9 October 2014, Mr Li attended the Accident & Emergency Department of Pamela Youde Nethersole Eastern Hospital (PYNEH) for treatment.On examination, there was tenderness and swelling over his left knee, and abrasion over left elbow. X-rays of left knee revealed a fracture of the patella. He was admitted to Orthopedic Ward. Treating doctors at PYNEH have issued sick leave to him for 13.93 months from 9 Oct 2014 to 30 Nov 2015.

10.  According to Form 9, Mr Li suffered from “left patella fractures resulting in pain, weakness and stiffness”. His period of absence from duty necessary as a result of the injury was certified to be from 9 Oct 2014 to 30 Nov 2015. His loss of earning capacity permanently caused by the injury was assessed at 3%.

Mr Li’s case

11.  Mr Li gave evidence that he came to know Mr Tsoi in about Sept 2013 through introduction of one called Chu Tsai and become employed by R1 as a causal[2] removal worker. By May/June 2014, he worked mainly[3] for R1 for most days of the month. He had not entered into any written employment contract with R1.

12.  Whenever R1 required Mr Li to work, said Mr Li, Mr Tsoi would usually call him by phone and most work arrangement was so confirmed, though sometimes he was also advised by Mr Tsoi in person or through other workers. He would be advised by R1 of the meeting time (usually 0730 or 0800 hours) and meeting place beforehand and he would report for work as instructed by R1.

13.  Mr Li produced name card of Mr Tsoi with R1, where Mr Tsoi’s mobile numbers were printed. He said Mr Tsoi told him to obtain the said card from the front of R1’s truck. He also produced his mobile phone bill (in name of his son) from 7 Sept 2014 to 6 Nov 2014 (the Mobile Record), which record, he said, proved that he had called Mr Tsoi on numerous occasions before 9 Oct 2014 to confirm work arrangement.

14.  Mr Li said he worked for R1 for 5 to 6 days a week (or about 22 to 26 days per month). His daily wages were $600, with overtime pay at $100/hour for work after 1800 hours. He worked overtime for no less than 10 hours each month, and earned about $1,000. R1 would also pay for his lunch, costing no less than $50/meal and worth no less than $1,100 per month. For arduous assignments involving e.g. climbing staircases, R1 would pay him extra $100 to $200 per job. He was paid in cash at the end of each working day and not required to sign any wage receipt. His total monthly earnings should be no less than $19,500.

15.  Mr Li said he provided only manual labour to R1. He was required to move objects (including heavy objects like furniture and piano) weighing as heavy as several hundred kgs manually. R1 provided him with all the tools. His job with R1 requires him to have excellent physique to perform such strenuous duties.

16.  In the morning of 9 Oct 2014, Mr Li arrived at the meeting point of Kwai Hing MTR station as instructed by R1 and took one truck together with Mr Tsoi to arrive at the Building. R1 had arranged as many as the Two Trucks that day as the Order involved removing goods from a 10/F unit of the Building to the Carpark to be loaded on board and removed away. He produced photos of KT523 (where R1’s name & contact particulars were printed on its body) and of MK3379 that he took, their entry cards[4] into the Carpark, and parking records dated 9 Oct 2014 of the Building as proof.

17.  After entering the Carpark, the Two Trucks were parked next to one platform with its top surface at some level above ground. The tailgate of the 2 Trucks was so operated that it sloped downwards slightly to reach the top surface of the platform. Mr Li produced a sketch, and photos of the platform in the Carpark that his wife took, to illustrate the arrangement. Such arrangement, said him, saved one’s time from raising or lowering the tailgates of the Two Trucks in the course of loading and unloading.

18.  At about 0855 hours, Mr Li said he alone moved one plastic box out from the compartment of one truck[5] down its sloping tailgate. The said plastic box was loaded with 10 to 12 carts and had further stacked on its top 1 to 2 carts and one paper box full of tools (collectively the Load). The Load roughly weighed no less than 300 catties. As it was so heavy, he had to exert considerable effort. In the course of moving it, he lost his balance, fell down from the platform and landed on the ground[6] (the Accident).

19.  Mr Li said he got injured over his left knee, left elbow and head in the Accident. Though Mr Tsoi witnessed the Accident, he demanded him to continue working. Notwithstanding his pain, he continued working and collected two loads of goods from 10/F to the Carpark. After that, he felt so painful that he called Mr Tsoi (who was then on 10/F) by phone to say that he could not continue. He thereafter left the Building.

20.  Mr Li later the same day called ambulance to seek treatment at PYNEH. His left patella fracture was treated conservatively with long leg plaster of Paris. He was not discharged until 14 Oct 2014, after which he attended regular follow-ups. He was referred to Department of Physiotherapy and Occupational Therapy of PYNEH and he has attended 25 sessions of occupational therapy.

21.  Due to his injuries in the Accident, Mr Li says he now suffers from: -

(1) persistent pain and weakness of left knee, especially on prolonged walking or exertion;

(2) less flexible movement of left knee joint compared to that before the Accident;

(3) difficulty of having to focus his center of gravity on his uninjured right leg upon walking;

(4) inability to walk or stand for prolonged period due to knee pain, requiring rest from time to time;

(5) slowness in walking or climbing up and down stairs;

(6) inability to lift heavy weights using left hand for fear of causing left knee pain; and

(7) insomnia and nightmares.

22.  After, and due to, the Accident, Mr Li said his physical fitness has deteriorated and he could not resume his pre-Accident job. He has tried in vain to obtain a licence of security guard but found the written test too difficult. He has applied to work as waiter in a restaurant but it was also unsuccessful. It was not until 12 Feb 2019 that he managed to find a job of, and resume working as, a casual cleaner[7]. His monthly salary was $9,776.5.

The Board’s case

23.  Mr Tsoi gave evidence that R1 was a small-scale removal company that did not employ many workers of its own. R1 enlisted help of middlemen to find sufficient number of casual workers (who work for no single removal company at one time) to perform its removal jobs. These workers were different from one job to another. They would turn up and work under the control, and the instructions, of these middlemen. R1 did not know nor control them at all.

24.  The Order, said Mr Tsoi, involved removing furniture from Unit 1003 to Unit 906 of the Building and did not involve removal of any goods on board any vehicle. To carry it out, R1 enlisted one middleman called Chu Tsai to arrange removal workers to wait at Kwai Hing and thereafter to be driven by R1 to the Building.

25.  In the morning of 9 Oct 2014, after workers arranged by Chu Tsai had gathered, Mr Tsoi said he found out that there was one worker short. He called Chu Tsai and was told that this missing person would go directly to the Building.  He and those workers that had arrived were then driven to the Building. They arrived at 0821[8] hours. The client’s representative later turned up at about 0930 hours. Still, the said last worker did not show up. Mr Tsoi said he had no idea of the identity of such worker that Chu Tsai had arranged.

26.  Mr. Tsoi said he called Chu Tsai again.  Chu Tsai gave him a mobile number and told him to contact the missing person directly. He tried several times before he got through to that person.  At that time, he still did not know that person’s name.  Over the line, he asked about that person’s whereabouts. That person replied Mr Tsoi that he had already left the Building. Hence, Mr Tsoi never met that person that day nor knew who he was.

27.  Mr Tsoi said R1 managed to complete the Order on 9 Oct 2014 without this another worker. At about 1800 hours on the same day, R1 received a telephone call from a female who said that her father was in hospital and needed to be hospitalized for 6 months. She said: “you better watch out doing that”[9] and hung up. Mr. Tsoi said he did not understand what was happening.  So far as R1 knew, during such time R1 carried out the Order at the Building on that day, none was injured and no accident had occurred.

28.  Mr Tsoi stressed that R1 never employed Mr Li. Neither he nor R1’s workers knew Mr Li at all. None of them had met Mr Li on 9 Oct 2014 at all.

29.  Mr Tsoi agreed that his mobile numbers are those stated by Mr Li and shown on the Mobile Record. He, however, said he had never discussed with Mr Li about work arrangement on 9 Oct 2014. Except for one call to his numbers in the afternoon of 9 Oct 2014, the remaining calls to his numbers as recorded in the Mobile Record, he said, are all less than 1 minute each.

30.  Mr Tsoi said one of the Two Trucks was owned by him. The other was owned by his younger brother, who formerly engaged in removal business on his own. As the business of his younger brother was not good, he from time to time assisted R1 in its work. That was also the case on 9 Oct 20114, on which day his younger brother used his own truck as “his means of transport”[10].

31.  Mr Tsoi said Mr Li had exaggerated his evidence regarding the alleged account of the Accident. He produced photos showing plastic box and carts used by R1 and also photos showing the operation of the tailgates of the trucks used by R1.

(1) Each cart, he said, weighs 4.6 kg, each plastic box weighs 6.2 kg and one plastic box fully loaded with carts weighs 45.8 kg (i.e. about 100 catties). It is, he said, impossible for Mr Li alone to move the Load as heavy as 300 catties as he claimed.

(2) The tailgate could, he explained, be raised up to same horizontal level of the bottom of truck compartment and, after the Load is loaded onto it, lowered down to same horizontal level of the top surface of the platform, such that the Load could be easily and safely pushed onto the platform. Hence, Mr Li did not need to move the Load at all and he could not have got injured due to “sloping” tailgate as he claimed.

Discussion

32.  Ms Lee appearing for Mr Li (Ms Lee) referred this court to principles on evaluating evidence given by witnesses cited at para 26-27 of Hon Foo Choi v Hometek International Ltd, unreported, DCCJ 3129/2014, 31 July 2017. Mr Phang appearing for the Board (Mr Phang) took no issue with them. I have borne them in mind in evaluating the evidence given by Mr Li and Mr Tsoi.

33.  I have further taken into account the lapse of time since Oct 2014, and its possible effect on memory, in assessing the evidence of these 2 witnesses.

Assessment of the witnesses

34.  On liability, I agree with Mr Phang there is no documentary evidence proving Mr Li’s alleged employment with R1[11]. Neither is there any alleged eye-witness called nor other direct evidence of the occurrence of the Accident. Moreover, Mr Li gave some inconsistent answers in the box as Mr Phang observed.

35.  Nevertheless, I still find Mr Li’s core evidence on liability credible and reliable, and decide to accept them. In so doing, I have considered that against the background facts, indisputable documents, and Mr Tsoi’s admissions in the box[12].

36.  Firstly, Mr Li’s case is, I think, inherently possible and also inherently more probable than that of the Board. Such core evidence of Mr Li being employee of R1, and having the Accident at work, on 9 Oct 2014 has, I think, the ring of truth in them.

37.  Secondly, had Mr Li not attended the Carpark for work together with Mr Tsoi and other workers of R1 as he claimed, I think it unlikely he could have given detailed evidence of the Accident at the Carpark with such minute details matching other evidence and Mr Tsoi’s evidence before me.

38.  Thirdly, Mr Li’s overall account of the Accident is also, I think, supported by the Notice and the Declaration he gave as early as 4 days after 9 Oct 2014.

39.  Fourthly, such inconsistencies in Mr Li’s evidence are, I think, minor or immaterial and some of them could have been explained by his limited education and the unsatisfactory way his witness statements were prepared by his legal advisers.

40.  Turning to Mr Tsoi, he was apparently more intelligent than Mr Li. And he did stand firm on his stances on liability when Ms Lee cross-examined him.

41.  But, as shall be explained below, Mr Tsoi’s core evidence on liability suffers, I think, from inherent unlikelihood and weakness, for which he had not provided any satisfactory explanation.

42.  Secondly, Mr Tsoi’s evidence has, I observe, material inconsistencies with other evidence. He also gave at trial for the first time material allegations not found in his witness statements, including on the calls recorded in the Mobile Record. Such matters cast serious doubt on his credibility.

43.  Thirdly, Mr Tsoi agreed with Ms Lee that R1 had not purchased employees’ compensation insurance for its casual workers. Hence, he has, I think, a motive to distort the truth to avoid R1 being held responsible at law for the Accident.

44.  All in all, I am driven to conclude that Mr Tsoi had not told the truth on material issues of liability in dispute. Unless otherwise stated, except where he admitted Mr Li’s case (in which case I give such admissions full weight), whenever his liability evidence conflicts with that of Mr Li, I prefer the latter.

45.  Moving to evidence on quantum, Mr Phang again pointed to, I agree, absence of documentary evidence supporting alleged amounts of earnings received by Mr Li from R1[13]. But I think it is not uncommon for casual workers paid in cash not being able to produce such documentary proof for one reason or another.

46.  Moreover, some of Mr Tsoi answers to Ms Lee regarding earnings paid by R1 to its workers tally, I observe, with Mr Li’s evidence of earnings from R1. He agreed R1 paid a daily wages of $600, provided for overtime pay and lunch. But he said overtime was paid at $50/hour. The cost of lunch in 2014 was only $30 odd/meal. And he denied R1 making any extra pay for arduous assignments.

47.  Thus, except for the disputed areas (which will be resolved below) and unless otherwise stated, I decide to give full weight to Mr Tsoi’s admissions and accept Mr Li’s evidence of earnings from R1.

48.  As to the remainder of Mr Li’s quantum evidence regarding the treatments he received for his injuries in the Accident, their adverse effect on his work, and his post-accident employment history, Mr Phang, I observe, did not see fit to cross-examine them except on Mr Li’s claim of psychiatric problems (including nightmares) and treatments.

49.  Indeed, such evidence given by Mr Li regarding physical injuries he sustained in the Accident and their effects on him is supported in general by medical reports and records before me, including joint orthopedic expert report dated 2 Apr 2018 (the Joint Orthopedic Report) prepared by Dr Miu Andrew (Dr Miu) instructed by Mr Li’s solicitors and by Dr Lee Po Chin (Dr Lee) instructed by solicitors for the Board, and the contents of Form 9.

50.  In comparison, there is no psychiatric report or record, or psychiatric expert opinion, of Mr Li before me. And there is no reference to alleged psychiatric problems in Form 9.

51.  Against that background, Ms Lee in her submissions, I observe, focused on physical impairments suffered by Mr Li as a result of the Accident and their adverse effect on his working and earning capacity and had not pressed for alleged psychiatric problems of Mr Li in his claim or in the Appeal.

52.  In the circumstances, I decide to proceed to deal with Mr Li’s claim and the Appeal in the same way Ms Lee had focused. I accept such remainder of Mr Li’s quantum evidence save his alleged psychiatric problems.

Assessment of other evidence

53.  Unless otherwise stated, I give full weight to contents of documentary evidence before me, including the Mobile Record and the various medical reports and records before me.

54.  I also give full weight to such common examination result and opinion shared by Dr Miu and Dr Lee in the Joint Orthopedic Expert Report. I shall discuss and resolve below such differences of the two doctors on length of sick leave to Mr Li, his prognosis, working capacity and loss of earning capacity if required.

Liability

Inherent probabilities

55.  Ms Lee at the forefront of her submissions submitted the Mobile Record plainly contradicts Mr Tsoi’s claim that Mr Li was a stranger to him on or before 9 Oct 2014.

56.  I agree.

57.  The Mobile Record does not record one isolated call on one single day long before 9 Oct 2014. Had Mr Tsoi not known Mr Li before 9 Oct 2014 as Mr Tsoi claimed, one thinks it unlikely for Mr Li to have called Mr Tsoi as many as 8 times on 7 separate days in Sept & Oct 2014 as recorded.

58.  I have not lost sight of Mr Tsoi’s evidence in response. At para 3 of his supplemental witness statement, he said the Mobile Record was not in Mr Li’s name and stressed that the duration of all but one calls was less than 1 minute. And he insisted on “not having any telephone conversation with Mr Li before”[14].

59.  The first response no longer stands after Mr Li explained in his supplemental witness statement that he held his mobile number in the Mobile Record in the name of his son and produced proof of their blood relationship.

60.  I deal with Mr Tsoi’s purported explanation at trial before dealing with his 2^nd response below.

61.  On being cross-examined at trial, Mr Tsoi purported to explain for the first time that, as R1 advertised its service[15], “anyone interested in R1’s removal service” would naturally call him “for quotation”. But, when asked whether he had received such repeated calls from Mr Li as recorded, Mr Tsoi evaded the question by asserting “many people called him” in the course of his work and that these less-than-1-minute calls give one “insufficient time to discuss work arrangement”. He asserted “at least 10 minutes”[16] were required. At the end, he replied Ms Lee that he had “no idea” what Mr Li had made these repeated calls to him for. In effect, he stopped short of asserting that Mr Li had called him repeatedly “for quotation” as he purported to explain earlier.

62.  Returning to the 2^nd response, on the dispute how much time was required between two to discuss and/or reach work arrangement on one single call, Mr Tsoi gave much evidence and Ms Lee had also spent considerable time cross-examining that, including on Mr Tsoi’s evidence raised for the first time at trial of a one-minute call[17] he had at 1215 hours on 12 Oct 2014 as recorded in the Mobile Record.

63.  I think it all depends.

64.  It depends on, for example, how familiar the parties are with each other and the subject matter being discussed, how much information was required to be conveyed, and how succinctly one party or both parties conveyed such information.

65.  In my views, work arrangement could, as Mr Li said, be discussed and/or reached in a call of one minute or less depending on the circumstances.

66.  More importantly, I think such 2^nd response from Mr Tsoi fails to answer the earlier, and crucial, question whether the parties know one another. Mr Tsoi fails to give a plausible explanation otherwise and the probabilities on all the evidence before me are that he knew Mr Li on and before 9 Oct 2014.

67.  Ms Lee’s 2^nd submission is that, had Mr Li not worked for R1 on and before 9 Oct 2014 as Mr Li claimed, it is inconceivable for Mr Li to have provided in the Declaration as early as 4 days after the Accident such matching details like the names[18] of the 2 drivers of the 2 Trucks as eye-witnesses of the Accident (which names and driver status was confirmed by Mr Tsoi[19]).

68.  I also agree with her.

69.  The 2 names concerned are, I think, not popular names that one can easily guess. And, importantly, there is no evidence or suggestion before me that R1, Mr Tsoi and/or his workers had contacted Mr Li in any manner and advised Mr Li of these 2 names in any way on or before 13 Oct 2014.

70.  Moving to the happening of the Accident, Mr Tsoi boldly asserted at trial of “zero” chance of one falling from the platform of the Carpark onto the ground as claimed by Mr Li.

71.  I disagree with him.

72.  For reasons below, I find it possible that Mr Li could have lost his balance and so fallen injuring his left knee in handling a heavy load on a “sloping” tailgate surface as he said.

(1) Mr Tsoi admitted under cross-examination that the tailgates of R1’s trucks could be so operated to become a “sloping” surface[20].

(2) A “heavy” load causes, one thinks, difficulty in handling (I find it unnecessary to find the weight of the Load, see below).

(3) There was, on photos of the Carpark, no barrier on either sides of the platform to prevent one falling from it onto the ground, as Mr Tsoi agreed.

(4) Dr Lee instructed by the Board also agreed that the mechanism of injury as described by Mr Li i.e. a fall is consistent with his having sustained a patella fracture in the Accident.

Contemporaneous documents

73.  I think the entry cards of the 2 Trucks into the Carpark (showing their entry times before 0900 hours) do discredit Mr Tsoi’s credibility (and support Mr Li’s case of his arrival on board R1’s truck at the Building, and having met the Accident at work, before 0900 hours). I reject Mr Phang’s contrary submission.

74.  Prior to parties exchanging and filing their respective witness statements, Mr Li had pleaded the Accident having occurred at about 0855 hours in his application. The Board, in its Answer, pleaded that R1’s truck, with Mr Tsoi on board, arrived at the Building at about 0900 hours and that person-in-charge of R1’s customer did not arrive at the Building until about 0930 hours. Hence, on pleadings, the Board clearly sought to distance R1 from the Accident by alleging its later arrival at the Building at about 0900 hours.

75.  In line with R2’s Answer, Mr Tsoi initially said at para 4 of his witness statement, which he verified with statement of truth, by claiming that he and R1’s workers were driven to, and arrived “on time”, at the Building “at 0900 hours”. Faced with entry cards of the 2 Trucks disclosed for the first time in Mr Li’s witness statement, he had, I think, practically no choice but to concede. He could have, one thinks, corrected in his supplemental witness statement but did not do so until as late as his evidence-in-chief at trial.

76.  Mr Phang in his cross-examination pointed to “0855 hours” being put down as the time of the Accident in the Notice and in the Declaration. He argued that such timing was inconsistent with Mr Li’s claim of making a call to Mr Tsoi after the Accident at “0853 hours” on 9 Oct 2014 as recorded in the Mobile Record.

77.  I accept from Mr Li that the former timing of “0855 hours” was only an estimate. As Mr Li explained under cross-examination, he had not checked the time of the Accident on 9 Oct 2014. Indeed, Mr Li both in his application and witness statement put the time of the Accident at “about 0855 hours (italics supplied)”.

78.  This call from Mr Li to Mr Tsoi at such telling time of “0853 hours” on 9 Oct 2014 as recorded is, I would add, another piece of weighty circumstantial evidence supporting Mr Li’s case of his working for R1 in that morning[21].

79.  It is true that Mr Li gave differing answers in the box on the time of the Accident. He said in the morning of day one that it occurred between “0800 odd to 0900 hours”. In the afternoon same day, he said it occurred “between 0825 and 0830 hours”.

80.  I believe Mr Li had “thought over the matter during lunch” as he said. I believe his estimate given in the afternoon is more accurate and I accept it. In any event, the exact timing of the Accident is, I think, not crucial as long as the Accident arose out of and in the course of Mr Li’s employment with R1.

Other inconsistencies within Mr Li’s evidence

81.  Mr Phang also pointed to answers given by Mr Li in the box that he had called Mr Tsoi as recorded in the Mobile Record for purpose of “chit chat”[22]. Such purpose is, he argued, inconsistent with purpose of making work arrangement as Mr Li claimed in his witness statements.

82.  Mr Phang further observed that 7 out of 8 such calls before 9 Oct 2014 as recorded were made after 1800 hours. Given that Mr Li claimed working for R1 as many as 22 to 26 days a month and that Mr Tsoi would meet him at the end of each working day to pay him wages in cash, it was put to Mr Li that there was no need for him to call Mr Tsoi for work arrangement as he claimed.

83.  However, Mr Li also said, I observe, in his statements that calling by phone was only one of many methods that work was arranged for him (others including in person).

84.  He also explained in the box that, at times, Mr Tsoi was not around when he finished a day’s work. Sometimes, Mr Tsoi arranged others to pay him daily wages in cash and he forgot to ask Mr Tsoi in person about future work arrangement.

85.  And, as Ms Lee observed, the Mobile Record does not record Mr Li calling Mr Tsoi daily but making 8 calls to him before 9 Oct 2014 on 7 separate days during a one-month-long period beginning 7 Sept 2014.

86.  For reasons above, I also reject this submission of Mr Phang. I accept some of these recorded calls to Mr Tsoi were made by Mr Li for work arrangement as he said.

87.  Moving to a 3-minute call to Mr Tsoi at 1826 hours on 9 Oct 2014 recorded in the Mobile Record, Mr Li do, I agree with Mr Phang, contradicted himself by saying that (1) it was made by him to advise Mr Tsoi of his injuries and/or to settle their dispute amicably; (2) it was made by his younger sister using his mobile[23]; and (3) he had no idea who made such call[24].

88.  That said, I do not find the above call a material issue in dispute that adversely affects general credibility of Mr Li. If required, considering Mr Tsoi’s evidence of the female caller identified to him as a daughter, I find it likely that the said call was made by Mr Li’s daughter on his behalf.

89.  Mr Phang, I observe, also cross-examined Mr Li on alleged discrepancies of details of the Load as recorded in the Notice and in the Declaration as compared against such minute details of the Load he gave in his supplemental witness statement.

90.  But “a plastic box loaded with 10 carts and a big bucket” was, I observe, put down on Mr Li’s behalf in the limited blank spaces of the Declaration. Such entries are, I think, largely in line with Mr Li’s evidence on this point. This being a claim of “no-fault” employees’ compensation, I find it sufficient to accept, and reliable to act on, Mr Li’s evidence on this point so verified by such entries.

91.  Hence, I find that the Load was, on 9 Oct 2014, a heavy load consisting of, at least, “a plastic box loaded with 10 carts and a big bucket”. Put another way, I find it unnecessary to rule on alleged further details of the Load or its exact weight.

92.  In this respect, every answer written on Mr Li’s behalf in the Notice and in the Declaration must, I think, considered in their proper context and not in isolation.

93.  For example, though it was written down in answer 8 of the Declaration that Mr Li “immediately”[25] called his boss after the Accident, it was also written down in answers 4 & 10 that his boss witnessed the Accident and required him to continue working despite he was injured. Read together, they are, I think, consistent with Mr Li’s evidence and I reject Mr Phang’s contrary submission.

94.  Mr Phang also pointed to Mr Li’s denial in the box of having viewed photos of carts produced by Mr Tsoi in his supplemental witness statement before he made his own supplemental witness statement, which statement at para 7 thereof expressly refers to such photos. Mr Li insisted in the box that these photos were only “recently” shown to him by his lawyers.

95.  Again, I consider this a peripheral issue not adversely affecting Mr Li’s general credibility. After all, Mr Li saw these photos anyway (albeit at a later time according to him) and, importantly, he confirmed and repeated the contents of para 7 of his supplemental witness statement as his evidence in the box.

96.  Had Mr Li’s legal team not prepared his witness statements without any interpretation clause (when they should)[26] and at many places in the language and “argumentative” tone of a “lawyer” (not matching his education and occupation), and had Minnan interpreter been arranged by them for him at trial in advance[27] or when he signed his witness statements, some of the above inconsistencies might, I think, not have been open to Mr Phang at all.

97.  Nevertheless, Mr Li’s core evidence of being employed by R1, attending the Carpark together with Mr Tsoi and other R1’s workers for work, losing balance and falling down from the platform in the course of handling a heavy load down the sloping tailgate of R1’s truck remains, I observe, unshaken despite Mr Phang’s cross-examination.

Conclusion on liability

98.  I find the facts on liability as per the evidence of Mr Li to such extents I have indicated above.

99.  I find that Mr Li was employed by R1 on 9 Oct 2014 as a casual removal worker and that personal injury by accident arising out of and in the course of that employment had been caused to Mr Li on that day. Accordingly, R1 shall be liable to pay compensation to Mr Li in accordance with the Ordinance.

Quantum

Hourly rate of overtime pay

100.  Absent other evidence corroborating Mr Li’s evidence of overtime pay rate, I find it at $50/hour per Mr Tsoi’s admission and allow for 10 hours per month as said by Mr Li.

Costs of lunch provided

101.  I find Mr Li’s evidence on this point unreliable. Under cross-examination, he admitted he never made any deal with Mr Tsoi on such costs. Neither did he receive cash from Mr Tsoi to pay his bills. Either Mr Tsoi or someone else paid his bills after he finished his meals. He never focused on prices of meals paid for him. At one stage, he even used the word “guess”[28] regarding the price of $50/meal he put forward.

102.  I think the payer is a better guide. Having regard to Mr Tsoi’s admission of $30 odd/meal in 2014 and his further evidence that the same now costs $50/meal, I find for$40/meal in 2014.

Extra pay for arduous assignments

103.  I think Mr Li’s bare assertion here fails to prove his case.

Total monthly earnings

104.  Contrary to Ms Lee’s submission, I am only prepared to adopt the median of 24 working days per month in calculating Mr Li’s total monthly earnings.

105.  Mr Li’s evidence of working for, and earnings from other employers than R1 is, I think, too scanty and uncorroborated. His evidence in the box of working as many as 30 days is nowhere found in his witness statement. I find them all too unreliable to act upon. I accept his evidence here only to the extent of “about 22 to 26 days per month” as he said in his witness statement.

106.  I therefore arrive at total monthly earnings of $15,860 in assessing compensation payable to Mr Li i.e. $600 x 24 days + $40 x 24 days + $50 x 10 hours.

The Appeal

107.  Ms Lee urged this court to prefer the conflicting expert opinion of Dr Miu over that of Dr Lee. On that basis, having regard to special circumstances of Mr Li in this case and s.9(1A) & 9(4) of the Ordinance, she urged this court to adopt the Hong Kong Paper Mills formula[29] (the Formula) by reference to Mr Li’s current earnings as a cleaner in assessing loss of earning capacity (LOEC) suffered by him as a result of his injuries in the Accident.

108.  As he dealt with quantum of Mr Li’s claim in general, Mr Phang puts Mr Li to strict proof on the Appeal and argued that there is insufficient basis or evidence to apply the Formula. He urged this court to maintain the assessment of LOEC in Form 9 (3%), adopt the assessment of Dr Lee (2%) or that of Dr Miu (5-6%).

109.  In dealing with the Appeal, this court has to start afresh, relying not only on Form 9, but also on any other evidence, especially medical evidence, adduced before it in order to assess LOEC:  Lau Tat Wai v Ma Kim Chuen, unreported, DCEC 629/2012, 13 June 2013, para 12 & 13, quoting Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115, 118D-E & Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246, 248G-I.

110.  This court has to test the validity of the conclusion reached in Form 9 against the total evidence available and shall also have regard to s.9(1A) of the Ordinance. If there are special circumstances of the injured employee which show that the actual LOEC is considerably greater than that produced by s.9(1) of the Ordinance, the true loss must be ascertained and proportionally applied to a permanent total incapacity calculation based on s.7 of the Ordinance: Lau Tat Wai, supra, para 16, quoting Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd [1991] 2 HKLR 455, 458C, G-H.

111.  Regarding the conflicting expert medical opinions, I first accept from Dr Lee that Mr Li’s left patella fracture has healed with preserved articular surface and space as shown in X-ray done by him and Dr Miu after their joint examination of Mr Li in Dec 2017. Mr Li has also by then regained full range of movement of his left knee as shown on their joint examination.

112.  But I also agree with Dr Miu that Mr Li suffers from persisting left knee pain and weakness for the following reasons.

(1) On the said joint examination more than 3 years after the Accident, Mr Li still had mild swelling around patella tendon and tenderness over the patella.

(2) As Ms Lee submitted and I agree, the muscle wasting of Mr Li’s left thigh shown on that joint examination is best proof of such persisting symptoms.

(3) Dr Lee also referred to “mild” “residual pain” occurring in circumstances of “prolonged strenuous exertion”.

(4) Form 9 also says “left patella fracture resulting in pain, weakness…”.

(5) Mr Li’s evidence of his physical complaints is not challenged by Mr Phang.

113.  On the above findings, I find it neither here nor there to describe Mr Li’s prognosis as “fair” as used by Dr Miu or “good” as used by Dr Lee.

114.  For reasons below, I disagree with Dr Lee that Mr Li should be able to return to his pre-Accident job. I prefer Dr Miu’s opinion that the left knee pain suffered by Mr Li present significant impairment on his working capacity and that Mr Li should consider a change to more sedentary type of work.

(1) Mr Tsoi agreed with Ms Lee that R1 required its casual workers to have excellent physique to perform their duties.

(2) I accept from Mr Li that his duties with R1 were of strenuous nature. Strenuous and prolonged exertion was from time to time required of him, especially if climbing stairs, lifting heavy objects like furniture and piano, or overtime, was required of him.

(3) Contrary to Mr Tsoi’s evidence, Mr Li is, I think, unlikely to be given accommodation like considerable resting time in the event of knee pain attacking him during strenuous and prolonged work.

(4) As early as in July 2015, work assessment done by occupational therapist of PYNEH demonstrated that Mr Li’s working capacity was “marginally matched” his job demands. It was said in the assessment that he could “likely manage certain work tasks” of his pre-Accident job “if special arrangement is offered”.

(5) It is, I think, most doubtful if special arrangement would be offered for Mr Li for him to resume his pre-Accident job in the competitive business market of Hong Kong.

(6) Hence, Mr Li is unlikely, I think, to be fit enough to be hired as a casual removal worker after the Accident.

(7) Indeed, Mr Li’s evidence of inability to resume his pre-Accident job went unchallenged by Mr Phang.

115.  Accordingly, I find Mr Li incapable of returning to his pre-Accident job of casual removal worker after, and as a result of, the Accident.

116.  Mr Li answered Mr Phang, and I accept from him, after his arrival in Hong Kong, he has worked as delivery worker and construction site worker before he worked as casual removal worker many years before the Accident. He does not possess any driving licence and has not been a driver.

117.  Considering also Mr Li’s background and age, his limited education, his unsuccessful attempts after the Accident to find alternative employments of security guard and restaurant waiter, and that he only managed to find a job of casual cleaner in Feb 2019 with a monthly pay less than $10,000, I agree with Ms Lee there are special circumstances in this case which show that the actual LOEC suffered by Mr Li is considerably greater than that stated in Form 9, assessed by Dr Lee or by Dr Miu, or that produced by s.9(1) of the Ordinance.

118.  To be fair to Dr Lee and Dr Miu, when they prepared the Joint Orthopedic Report in Apr 2018, they did not have the benefit of the subsequent events and the evidence I now have.

119.  I therefore also agree with Ms Lee that the true loss of Mr Li in terms of LOEC should be assessed by the Formula as per s.9(1A) of the Ordinance. So assessed, the LOEC is 38% i.e. ($15,860 - $9,776) / $15,860 x 100%.

Compensation for permanent partial incapacity

120.  Mr Li was under 56 at the time of the Accident. Hence, the amount of compensation payable to him under s.9 of the Ordinance is $433,929 i.e. $15,860 x 72 months x 38%.

Compensation for temporary incapacity

121.  Dr Lee opined that sick leave given up to end of July 2015   should be the appropriate sick leave for Mr Li’s recovery. But, having regard to s.10(2) of the Ordinance, that sick leave has been granted to Mr Li by his treating doctors to 30 Nov 2015, that such length was endorsed in Form 9 and also by Dr Miu, I prefer and find for such longer period of total temporary incapacity than that opined by Dr Lee.

122.  Under s.10 of the Ordinance, the compensation payable to Mr Li is $176,743 i.e. $15,860 x 4/5 x 13.93 months.

Payment of medical expenses

123.  Mr Li claims only $620 under s.10A of the Ordinance. This is agreed by the Board and I allow this sum in full.

Quantum summary

124.  The total amount of compensation payable from R1 to Mr Li is therefore $611,292 i.e. $433,929 (s.9) + $176,743 (s.10) + $620 (s.10A).

Disposition

125.  Accordingly, I allow the Appeal and substitute 38% in lieu of 3% in Form 9 as loss of earning capacity permanently caused to Mr Li by his injuries in the Accident.

126.  I further enter judgment in Mr Li’s favour against R1 in the sum of $611,292, together with interest at half judgment rate from 9 Oct 2014 to judgment and thereafter at judgment rate until payment.

Costs

127.  I make the following orders nisi as to costs: -

(1)  R1 do pay Mr Li the costs of this application, including all reserved costs and the costs of this trial, at such amount to be taxed if not agreed;

(2)  The Board do pay Mr Li the costs of this application as from 29 Aug 2017, including all reserved costs and the costs of this trial, at such amount to be taxed if not agreed;

(3)  I certify counsel’s attendance for Mr Li at this trial; and

(4)  Mr Li’s own costs shall be taxed in accordance with Legal Aid Regulations.

If none applies to vary them within 14 days, these costs orders shall become absolute and effective.

128.  Finally, I thank Ms Lee and Mr Phang for their able assistance.

 

	(LEE Siu-ho)
	Deputy District Judge

  

Ms Christina Lee, instructed by Messrs. L & L Lawyers, and assigned by the Director of Legal Aid, for the applicant

The 1^st respondent is unrepresented and did not appear

Mr Roger Phang, instructed by Messrs. P.C. Woo & Co, for the 2^nd respondent