DCEC 1069/2017
[2021] HKDC 503
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO 1069 OF 2017
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IN THE MATTER OF AN APPLICATION BETWEEN | |
| | YIP KAM CHUN | Applicant |
and |
| | WELLGAIN INTERNATIONAL INDUSTRIAL LTD | Respondent |
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Before: Her Honour Judge Levy in Court
Dates of Hearing: 19, 25 and 26 January 2021
Date of Respondent’s Further Written Submissions: 1 February 2021
Date of Judgment: 5 May 2021
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JUDGMENT
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A. Introduction
1. On 1 December 2015 (Accident Date), Mr Yip Kam Chun (Applicant), the Respondent’s accounting manager for 6 and ½ months allegedly met an accident (Accident) in the course of employment when he allegedly fell from an office swivel chair (court exhibit “R1”) (Chair) on which he was sitting, and suffered personal injuries.
2. The Applicant engaged private solicitors to institute these proceedings to claim compensation pursuant to s 9[1] , s 10[2] and s 10A[3] of the Employees’ Compensation Ordinance (Cap 282)[4]. A related parallel common law action was also commenced in the High Court, HCPI 1153/2018, which action was later transferred to the District Court under the case number of DCPI 2197/2020 (PI Action). The trial of the PI Action will take place from 27 to 29 July 2021.
3. The Applicant acted in person since November 2020. The trial of this action was therefore entirely conducted in punti, but both parties had prepared their submissions in English. The Applicant continued to act in person, and the Respondent was represented by counsel, Mr Alfred Cheng.
4. Liability and quantum were both contested. For liability, the Respondent contended that the Accident did not happen, or alternatively, the Accident was contrived, i.e. the Applicant intentionally caused it to happen: see the Respondent’s Answer §13.
5. As for quantum, apart from the Applicant’s monthly earnings at the time of the Accident having been agreed at $50,000, and the compensation for s 10A agreed at $4,060, the Applicant’s claims for compensation under s 9 and s 10 were vigorously disputed.
B. Documents of other proceedings
6. In the trial bundle (TB), the parties have also included:-
(i) The Applicant’s witness statements and 4 affirmations to answer interrogatories filed in the PI Action.
(ii) The transcript (Transcript) of the trial of two labour summonses (Labour Summonses) held in November 2017 in the Kwun Tong Magistracy. Pursuant to the complaint by the Applicant to the Labour Department in respect of the Respondent’s non-payment of s 10 payments, the Respondent was charged with offences pursuant to s 10(10) for having failed to pay s 10 payments to the Applicant for the months of January and February 2016. The Respondent was found not guilty after trial.
7. By way of a preliminary point, I should mention that the Transcript[5] disclosed that the Applicant, in the course of his testimony in the Magistracy trial, mentioned a letter he received from the Respondent’s loss adjuster, Total Rehabilitation Management, in which a proposal for payment of a specified sum to the Applicant as damages was made.
8. I raised this matter with the parties at the trial as to whether the disclosure would render the continuation of the trial by this court untenable. Notwithstanding the parties’ confirmation that they would have no objection for this court to continue with the trial, I have, out of an abundance of caution, invited Mr Cheng to prepare submissions in relation to whether the inadvertent disclosure might constitute “without prejudice” disclosure that would adversely impact on the conduct of this trial.
9. In the subsequent written submission, Mr Cheng unfortunately only submitted cases in relation to the effect of the evidence and factual findings of the trial of the Labour Summonses, which was not the matter on which I had asked him to assist.
10. In any event, I was of the view that the part of the Transcript I referred to above is no more than a vague and imprecise reference by the Applicant in relation to damages, which does not concern employees’ compensation in these proceedings. In the circumstances, after having considered the matter in context, I was satisfied that the disclosure should have no adverse impact on this trial.
I: LIABILITY
C. The Evidence
C.1 Witnesses
11. The Applicant himself testified at trial, as did the Respondent’s founder and operations director, Ms Ng Mei Chee Noris (Ms Ng).
12. The Respondent had two other witnesses, Mr Chan Kai Chung (Michael) and Ms Li Yuk Ping Nicole (Nicole), who were respectively the Respondent’s accountant, working under the Applicant, and a human resources and executive officer. They did not testify at trial as their witness statements had been agreed to be admitted as evidence.
C.2 The meeting before the Accident
13. It is undisputed that before the Accident, a meeting (Meeting) between Ms Ng and the Applicant was held in the Respondent’s office at around 10 to 11:30 that morning. The contents of the Meeting however were very much in dispute.
14. It was Ms Ng’s evidence that she had arranged the Meeting with the Applicant to discuss about the latter’s work performance. Ms Ng stated that the Respondent had concerns with the Applicant’s performance after the Applicant joined the Respondent 7 months ago. At that time, the Applicant was also in charge of the Respondent’s Dongguan factory where he worked most of the week. Ms Ng had asked the Applicant to come back especially to the Hong Kong office to attend the Meeting. During the Meeting, she had discussed with the Applicant matters concerning the Respondent’s impending moving of its Dongguan factory, the on-going loss of profit, and methods to improve the Respondent’s business.
15. Ms Ng stated that at the end of the discussions, she came to the settled view that the Applicant would unlikely deliver the performance the Respondent wanted. She then decided that the Applicant had to go. In order not to affect the Applicant’s career prospects, Ms Ng said that she offered the Applicant a choice between dismissal or voluntary resignation. Ms Ng stated that the Applicant did not immediately confirm his choice, but simply kept repeating the words “up to you (隨便你)”; “you decide (你決定)”. Ms Ng then suggested that it would be better for the Applicant to resign, to which the Applicant replied, “Fine (好呀)”. Ms Ng said she expected the Applicant to leave the Respondent that day.
16. The Applicant said he could not recall whether he had been especially asked to return to Hong Kong from the Dongguan office, and stated that the Meeting was only about the general operation of the Respondent. He stated that the discussion of unsatisfactory work performance was not about him but about other employees. The Applicant denied that Ms Ng gave him the options of voluntary resignation or dismissal and that those options were mentioned in the context of the Respondent’s general policy in relation to non-performing employees. The Applicant said he responded to this policy by telling Ms Ng that it was entirely a matter for her: “隨便你，你決定”.
C.3 The Accident
C.3.1 The office layout and the design of the Chair
17. The Applicant occupied a small, carpeted room with windows as his office. According to the copies of the colour photos, the Applicant had an L-shaped office desk. The longer and the shorter edges of the “L” shape desk were respectively placed against and away from the windows. The shorter edge of the desk was not entirely enclosed. Thus, if the Applicant sat on the Chair in front of this part of the desk, he could stretch out his legs beyond the desk. The more he reclined, the more he could extend his legs beyond the desk.
18. There was no information on the design and the operation of the Chair. After I had examined the Chair, I could observe that it is a common swivel office chair with usual features: a velvet-covered seat, non-adjustable arms, a recline-adjustable back and a backrest. Underneath the seat is a seat tilt adjuster on the right side; and a round-shaped seat tilt tension control in the middle. Visibly, the Chair is supported by a single column in the center with a spider-web like base consisting of 5 prongs. Each of these prongs carries a caster with dual wheels, which wheels enable the very easy sliding of the Chair. In fact, the Applicant stated that he was used to sliding the Chair back and forth while he sat on it.
C.3.2 The Accident according to the Applicant
19. There was no eye-witness to the Accident.
20. According to the Applicant, the Accident happened at around 1:35 p.m. shortly after his lunch hour had ended at 1:30 p.m. He said that he felt a bit tired after lunch. Therefore, he sat cross-legged on the Chair that was placed in front of the shorter edge of the desk, reclining backwards (to about 45 degrees) with his left heel being slightly lifted up above the floor as he was reading the office documents : see the 1st [6] and 3rd [7] court demonstrations. Within a matter of 1 to 2 seconds, he suddenly and unexpectedly fell to the floor with the Chair. His buttocks and part of his back landed on the floor, while the upper part of the back of the Chair touched the floor: see the 2nd court demonstration[8]. The Applicant immediately felt pain around his hand and neck and shouted for Michael, who was working outside his room. He could only get up from the floor with the help of Michael.
21. The Applicant stated that he was not sure whether the adjustable backing of the Chair could be locked but he did not lock it that day. He only felt that the back of the Chair was loose, and he could tilt the back to a very low position.
22. The Applicant then left the office to go to the hospital for treatment after he had told Nicole about the Accident.
C.3.3 Michael’s and Nicole’s evidence
23. While Michael did not witness the Accident, he was able to see through the clear glass partition of his office desk outside the Applicant’s room that the Applicant was reclining his back in an extremely low and backward-tilting position as he was sitting on his Chair. Michael said it was unsafe[9]. Soon afterwards, he heard a “Bang” sound coming from the Applicant’s room and the Applicant’s shout for help. When Michael went inside, he saw the Applicant lying on the ground. When Michael helped the Applicant get up, he could not see any serious injuries on the Applicant.
24. The Applicant told Michael that he was injured, and left the office shortly afterwards.
25. Nicole also confirmed in her witness statement (at §6[10]) that the Applicant told her he was injured and wanted to leave early for medical treatment. She also said that she did not see any visible injuries on the Applicant.
D. Discussion and findings
D.1 Applicable principles on assessment of credibility
26. The parties have not cited any authorities on the proper approach a court should take when evaluating the credibility of the witnesses. For completeness, I ought to re-state the applicable principles governing the assessment of a witness’ credibility that I have set out in my recent judgment of Xie Quyun v Easy Living Property Management Ltd[11] (at §34). These principles are trite, and they should not be controversial.
“(1) Objectively, whether a witness’ testimony is inherently plausible or implausible;
(2) Whether that part of his testimony is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;
(3) Whether it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility. Regard may have had to a witness’ motive for deliberately not giving truthful testimony; and
(4) The demeanour of the witness.[12]”
D.2 Evaluation of witnesses
27. Mr Cheng asked this court not to believe the Applicant by suggesting that the Applicant, in order to obscure the truth, deliberately deployed a tactic of being economical when answering the questions put to him under cross-examination which he answered in an evasive and argumentative manner.
28. Referring to the contents of the Meeting, Mr Cheng asked this court to reject the Applicant’s version and find that he had indeed been asked to resign. The Applicant was therefore motivated to fabricate the Accident so as to avoid the fate of resignation.
29. The Applicant’s incredible and unreliable evidence, Mr Cheng stated, was clearly reflected by the inconsistent allegations that he made at different times concerning the condition of the carpet of the Applicant’s office, the condition of the Chair and the extent of his alleged injuries. His evidence in this trial was different to his averments in his witness statement filed in the PI Action, and his evidence given at the Magistracy trial.
30. In his written closing skeleton, the Applicant submitted that he was an honest witness as having been so found by the Magistrate in the trial of the Labour Summonses[13].
31. First of all, I do not think that the comments by the Magistrate bind this court, as the issues at the trial of the Labour Summonses were entirely different to the present ones. The Magistrate’s comments that the Applicant was an honest witness, in my view, will have little weight on my evaluation of the credibility of the witness. In the evaluation exercise, I should apply the principles stated in Section D.1 above.
32. I have carefully observed the demeanour of the Applicant and Ms Ng at court, and was not at all impressed by the Applicant. Rather, I was most impressed by Ms Ng’s forthrightness. I find Ms Ng a credible witness and believe her evidence.
33. By contrast, I find the Applicant was, on the whole, an evasive witness. The Applicant, as a university graduate with a professional accountancy qualification, was undoubtedly not a typical litigant-in-person. He was observed to have been smooth, and at times slick, when giving evidence. Mr Cheng’s criticisms of the Applicant being economical with the truth are not without basis.
34. Overall, I do not find the Applicant a reliable witness. I find that the Applicant was extremely guarded when he gave evidence especially in relation to disputed matters. For example, I find the Applicant’s evidence in relation to the disputed contents of the Meeting deliberately scant and sweeping. On the other hand, Ms Ng was very specific and detailed. It is obvious to me that the Applicant was not telling the truth.
35. Apart from finding the Applicant evasive, I also find that he has a tendency to exaggerate, which aspect will be further elaborated on in Section II below when discussing Quantum.
36. In the circumstances, unless the Applicant’s evidence had been corroborated in material aspects by cogent evidence, I’d be disinclined to believe his evidence where the witnesses’ evidence is in dispute.
D.3 The contents of the Meeting
37. As to what was discussed in the Meeting, the evidence of the Applicant and Ms Ng differed in a number of aspects such as whether the Applicant’s performance was discussed etc. However, I believe that the most important dispute that I need to resolve is whether the Applicant had chosen to resign as Ms Ng stated in her evidence. In this respect, I prefer the evidence of Ms Ng, which I find to have been corroborated by Ms Ng’s letter dated 8 December 2015[14] which she wrote to the Commissioner of Labour.
38. In the opening part of the said letter, Ms Ng mentioned the discussion with the Applicant on the Accident Date about his performance and the difficult outlook of the Respondent’s business. Most importantly, Ms Ng stated that the Applicant agreed to resign on his own accord after discussion.
39. I find as a fact that Ms Ng had requested the Applicant to return to the Hong Kong office to attend the Meeting to discuss about the Applicant’s performance, and to enable Ms Ng to gauge the Applicant’s ability to deliver the performance that the Respondent wanted. Once Ms Ng came to the conclusion at the end of the Meeting that the Applicant would unlikely be able to deliver the performance expected of him, Ms Ng therefore decided that he had to go.
40. Contrary to the details of the Meeting Ms Ng described in her evidence, the Applicant, by contrast, was very short on detail. Not only was the Meeting never mentioned in his witness statement, the Applicant’s answers under cross-examination were evasive and convoluted. For example, I find his admitted response to Ms Ng was given in what I find to have been a very cavalier attitude (entirely a matter for her: “隨便你，你決定”), allegedly to have been made in the context of the non-performing employees, is simply illogical. I do not find it believable. I do not accept his evidence.
41. The employment contract between the Applicant and the Respondent provided for termination by each party’s giving two months’ notice. Contractually, it provided for a payment of two months’ salary in lieu of the required notice. The Applicant had attempted to capitalize on this contractual notice requirement by repeatedly questioning Ms Ng’s veracity on his voluntary resignation. It was suggested to her that she did not provide for arrangements in relation to important matters of resignation such as the amount of termination “compensation” payable to the Applicant, the date of his last day of employment, the hand-over details etc.
42. When Ms Ng was cross-examined about the absence of a resignation arrangement, she had stated that it was out of her human nature (“出於人性表現”), in that she was concerned for the Applicant’s future career prospects. In further elaboration, Ms Ng stated that what really mattered to her was to see the Applicant tender his resignation. She said the Respondent absolutely had no intention at all of insisting on its contractual right to require the Applicant to make payment in lieu of notice. She said the Respondent would not have required the Applicant to pay the Respondent any payment (in lieu of notice) for his immediate resignation.
43. From Ms Ng’s evidence that I accept, I believe that once Ms Ng had decided that the Applicant could not deliver the performance the Respondent needed, she then wanted the Applicant to leave the Respondent immediately. The reason why Ms Ng had preferred the Applicant to resign on his own accord rather than dismissal by the Respondent was, in my view, partly due to her concern for the Applicant’s career, but also probably partly motivated by financial concerns. An immediate dismissal without notice would have contractually obliged the Respondent to pay the Applicant two months’ salary in lieu of notice. I believe Ms Ng probably wanted to avoid that payment. Instead, getting the Applicant to agree to tender immediate resignation would have then given the Respondent an absolute discretion in deciding whether it would waive the requisite contractual payment by the Applicant.
44. In conclusion, I find as a fact that at the end of the Meeting, Ms Ng offered the Applicant an option of either immediate dismissal (by the Respondent) or voluntary resignation, the latter of which the Applicant chose. Since an agreement was reached, the Meeting ended amicably.
D.4 Whether the Accident happened?
D.4.1 Undisputed evidence
45. As stated in Section D.1 above, when considering whether a witness’ testimony is inherently plausible or implausible, a court can examine it against the undisputed or indisputable documentary and other evidence to see if it is contradicted or, conversely, corroborated in a material way. In relation to the present issue as to whether the Accident was the Applicant’s fabrication, I find that the Applicant’s evidence in this regard was substantially corroborated in a material way: by the undisputed evidence of Michael and Nicole, and the medical report of the A&E Department of Alice Ho Miu Ling Nethersole Hospital.
D.4.1.1 Michael’s evidence
46. Michael was not an eye-witness to the actual Accident. However, his testimony (see §§23 and 24) as to what he saw before and after the Applicant’s fall to the floor, in my view, is cogently corroborative of the Applicant’s account of the Accident.
D.4.1.2 Nicole’s evidence
47. The WhatsApp exchanges between Nicole and the Applicant at about 4 p.m. on the Accident Date are highly corroborative as they are closely proximate to the time of the Accident.
48. These WhatsApp exchanges are attached as “Exh 1” to Nicole’s witness statement, which relevant exchanges are as follows. (Letters “N” and “A” are used to respectively denote Nicole and the Applicant; and the number after the letter stands for the number of minutes past 4).
N02: “Cannot find you, what has happened? (搵你唔到 有無咩事？)
A02: “In hospital” (在医院睇病)
N03: An emoji of “Face Screaming in Fear”
N04: “Are you alright?” (有冇大礙？)
A05: “The Chair was not safe, I fell off as a result” (公司張櫈唔安全，導致跌到。)
N05: An emoji of “Face Screaming in Fear”
N06: “Do you wish to treat it as an industrial accident? To report to the Labour Department and have the injury assessed? (你想唔想當工傷？報勞工處 找人判傷？)
A07: “Yes” (要)
49. These WhatsApp exchanges together with Nicole’s statement that the Applicant had told her about the Accident (see §25 above) are undisputedly contemporaneous evidence, which in my view, supports the Applicant’s evidence that he had indeed fallen from the Chair. It could not have been an afterthought.
D.4.1.3 The medical report of theA&E Department
50. It was reported in the medical report that when the Applicant was examined by a medical officer at 14:36 on the Accident Date, he told the doctor that he “fell onto his back”. In the description section, it is stated that he “had right neck, right shoulder and right back pain. There were right neck and shoulder and lower back tenderness. No neurological deficit was noted”. The diagnosis and the type of case were respectively stated to be “contusion neck and lower back” and “industrial”.
51. In light of these contents of the medical report, I do not think it can be disputed that the Applicant has suffered employment-related injuries at the neck and lower back.
D.4.2 Conclusion
52. The undisputed evidence stated above, in my view, is cogent evidence that can contemporaneously corroborate the Applicant’s evidence that he had indeed fallen from the Chair while he was at work. In the circumstances, I find that the Applicant has proved, on the balance of probabilities, that shortly after lunch on the Accident Date, the Applicant met the Accident in the course of the employment.
53. The Respondent’s primary contention that the Accident did not happen fails. I should next consider its alternative contention that the Accident did not arise “out of” the employment within the meaning of s 5.
D.5 Was the Accident Contrived?
D.5.1 The meaning of “accident” within the meaning of s 5
54. The relevant provisions of s 5:-
“(1) Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.
(2) No compensation shall be payable under this Ordinance in respect of-
(a) …;
(b) any incapacity or death resulting from a deliberate self-injury;
(c) …; or
(d) …
(3) …
(4) For the purposes of this Ordinance-
(a) an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment.”
55. It is now settled that for an accident to be the “accident” within the meaning of s 5(1), it needed to be “an unlooked-for mishap or an untoward event which is not expected or designed”[15].
56. These proceedings are grounded on a “no-fault” basis. The issue of “fault” usually has little relevance. However, since the Respondent has attributed deliberate fault to the Applicant for being the sole cause of the Accident, it is therefore necessary to also deal with causation of the Accident when deciding whether the Accident arose “out of” the employment.
57. The Applicant denied any deliberate act but alleged, albeit obliquely in these proceedings, that the Accident was likely to have been caused by the uneven carpeted floor and the malfunction of the back of the Chair.
58. The Respondent conversely contended that since the Accident was the Applicant’s deliberate act, the Respondent would not, by reason of s.5(2)(b), be liable to pay compensation for the injuries the Applicant suffered as the result of the Applicant’s deliberate self-injury. The Accident would not have been an unexpected mishap.
D.5.2 Causation
D.5.2.1 Was the carpet uneven?
59. As for the carpet, the Applicant did not seem to have made allegations either in these proceedings or at the trial of the Labour Summonses on 22 November 2017 (in which he said he was not sure[16]) in relation to the condition of the carpet on which the Chair was placed. The only instance where he made specific allegations was in the PI Action in his witness statement dated 23 August 2019 (PI Witness Statement). In the PI Witness Statement (at §9), it was alleged that the relevant part of the carpet was uneven and folded up.
60. Mr Cheng contended that since the Applicant had not made consistent allegations about the condition of the carpet, the allegations were unreliable.
61. For an examination of the veracity of the allegations, it is, in my view, best to look at the photos[17] that undisputedly give a correct depiction of the condition of the carpet inside the Applicant’s office. These photos do not support the Applicant’s allegations made in the PI Action that the carpet had uneven surfaces. It was shown to be in generally good condition.
62. I therefore agree with Mr Cheng’s submissions in finding the Applicant’s allegations of defective carpet condition unreliable. I have indeed found it illogical for the Applicant to have only raised specific allegations of defects in the PI Action when he had not raised them either at the trial of these proceedings or at the Labour Summonses proceedings. I find the Applicant’s explanation given in cross-examination that he tried to reduce his suspicion (that the carpet was damaged) in writing so convoluted that it simply had no ring of truth.
63. For these reasons, I find that the carpet was in good condition without any of the alleged conditions the Applicant alleged in the PI Witness Statement. The carpet did not contribute or cause the Accident.
D.5.2.2 Did the Chair have any malfunction?
64. The Applicant’s allegations of malfunction were extremely diffuse. The only malfunctions that the Applicant alluded to were that the back of the Chair was loose and had an unusually low and excessive back-ward tilt. He also stated that he had mentioned these problems to Michael and Nicole before the Accident.
65. In his PI Witness Statement, the Applicant’s allegations about the problems of the Chair were more specific and detailed. Apart from the excessive recline of the back of the Chair, the Applicant also alluded (at §9) to loose wheels (輪子). When he was cross-examined on the allegations regarding the wheels, the Applicant stated that the “wheels (輪子)” that he referred to in the PI Witness Statement were meant as the “connecting points” or the “ball bearings of the back” of the Chair.
66. Mr Cheng suggested that the Applicant gave inconsistent evidence about the alleged defects of the Chair. It was pointed out that his alleged complaints raised with Michael and Nicole were not documented. Tellingly, Mr Cheng further stated, the Applicant’s allegations of loose wheels stated in the PI Witness Statement were entirely different to the allegations that he made at the trial. Mr Cheng invited this court to reject his evidence outright.
67. I agree with Mr Cheng’s submissions on the inherent unreliability of the Applicant’s allegations of the Chair’s defects.
68. Not only am I unable to find any supporting documents for the Applicant’s complaints allegedly made to Michael and Nicole, I find it inexplicable that the Applicant would have been completely silent about the alleged defective Chair when discussing the Accident with Nicole.
69. In Nicole’s email to the Applicant dated 8 December 2015, Nicole asked the Applicant “why and how you could fell (sic) down from the [C]hair, because you should be seat (sic) on it not stand on it. We did check the [C]hair after your accident and it was safe”.
70. In the above email sent to the Applicant about 1 week after the Accident, Nicole specifically asked the Applicant how he had fallen from the Chair. In his email in reply the next day, the Applicant apparently sidestepped Nicole’s inquiry, and simply wrote: “Today go to see doctor and apply sick leave”.
71. I find that the Applicant’s failure to make a complaint about the alleged defects of the Chair soon after the Accident has substantially undermined his credibility. Undoubtedly, any malfunction of the Chair would have been highly relevant to the circumstances of the Accident. Pertinently, when the Applicant had earlier on already instructed Nicole to make a report of an industrial accident in the WhatsApp exchanges (see §48 at N06 above), he would have reasonably been expected to inform Nicole that contrary to her view, the Chair was not safe. I find his attempt to explain his failure to mention to Nicole the malfunction of the Chair in his reply email further accentuates the inherent falsity of his complaints. I do not think that the Applicant’s explanation for his failure to raise the complaint on the ground that at that time he only harboured a suspicion that the back of the Chair was loose can sit logically with his alleged complaints made before the Accident. His evidence that he would have reported the matter to the police were he sure of the Chair’s defects, in my view, is so absurd and I find it difficult to accept.
72. I also agree with Mr Cheng’s submissions that his allegations in the PI Witness Statement about defective wheels are entirely inconsistent with his allegations made at the trial. It is all the more incredible, in my view, for a reasonably educated person like the Applicant to have mixed up the “wheels” with the ball bearings of the Chair.
73. On the totality of the evidence, I’m inclined to find, on the balance of probabilities, that the Chair had no malfunction or defects.
74. In their undisputed witness statements, Michael and Nicole confirmed that they had sat on and examined the Chair after the Accident. Neither of them was able to detect any abnormal function.
75. The Chair was produced at the trial, and was used for three demonstrations at court. However, no specific defects or malfunction could be identified at any of the court demonstrations. From my own inspection, I too am unable to discern any problems with the Chair, and find that it appears to be in a perfectly normal condition.
76. In the circumstances, I find the Applicant has failed, on the balance of probabilities, to prove that the toppling over of the Chair was caused by any damage, defects or condition of the carpet or the Chair.
77. In conclusion, I find that the Respondent was unlikely to have been at fault. It is inherently improbable that the Respondent had contributed to or caused the Accident.
D.5.2.3 The Accident was caused by the Applicant
78. Having exculpated the Respondent for having caused the Accident, I do not think the inference that the Accident could only have happened by the Applicant’s contrite act as Mr Cheng had suggested should automatically follow.
79. Based on the conclusion that I have reached above in §77, I believe that it is now open to this court to infer that the Applicant himself had very likely caused the Accident – either by his contrived and deliberate act as the Respondent had contended as its alternative case; or through his own negligence without any deliberate intention.
80. As I have already found above that the Accident arose in the course of employment, the Accident is, by the deeming provision of s 5(4)(a), deemed also to have arisen out of that employment (i.e. within the meaning of s 5(1)) unless the Respondent can adduce evidence to the contrary. Hence, the Respondent was required to adduce evidence proving that the Accident was contrived, and that the Accident’s injuries were deliberate self-injury.
81. Mr Cheng substantially relied on the 3rd court demonstration to support his argument that the demonstration showed that it was inherently improbable for the Chair, in the absence of any defects, to have toppled over in the way the Applicant described. He stated that the 3rd court demonstration clearly showed that when the demonstrator took a similar reclining sitting position as the Applicant, the Chair was still firmly glued to the floor. Mr Cheng submitted that there is an irresistible inference that the Chair was deliberately flipped over by the Applicant having deliberately reclined and tilted himself by force.
82. In riposte, the Applicant stated that none of the court demonstrations could replicate the same condition as to how the Accident happened. Irrespective of the fact that the demonstrator in the 1st and 2nd court demonstrations was the Applicant himself, the Applicant stated that he could not recreate the same state of mind at the time of the Accident. As for the 3rd court demonstration, the Applicant suggested that it was even less reliable as the demonstrator was someone else who did not have the same build as him. The Applicant submitted that the Court should not rely on the court demonstrations in drawing an inference that the toppling of the Chair was his deliberate act.
83. As stated above, I have physically inspected the Chair, and found that it was a common office swivel chair with no unusual features. I note that the Chair was firm and stable, but that the wheels of the Chair were very smooth and the Chair could be swiveled very easily in all directions with little effort. After having sat on the Chair myself, I felt the back of the Chair could be reclined more than a usual swivel office chair. Nonetheless, I am unable to rely solely on the reclining back-ward tilt to, in the absence of any expert evidence on the design and mechanics of the Chair, make an inference one way or the other on the likelihood of whether it could be easily toppled over or not. In my view, it is more likely than not that the Chair was toppled over as a result of the Applicant’s carelessness rather than by his deliberate act.
84. Based on the events before the Accident, I’m more inclined to infer carelessness on the part of the Applicant rather than an ulterior motive of fabrication of the Accident as Mr Cheng suggested. The Accident happened shortly after the Applicant had agreed to resign. However, as Ms Ng had confirmed, there were still a host of resignation-related matters that remained to be discussed. Before these matters were settled, I do not think the Applicant, within such a short time after the Meeting, could have designed such a scheme of contrivance at the expense of his own personal safety. I do not find that Mr Cheng’s suggestion of deliberate act can be supported.
85. Despite the peaceful ending of the Meeting, I believe that the Applicant’s state of mind would have likely been affected by the matters discussed in the Meeting, in particular by his agreement to resign. When he resumed his work after lunch, it is likely that the Applicant would have been pre-occupied with the nitty-gritty details of resignation while reading work documents. He was tired, and reclined in his Chair, probably excessively. It can reasonably be referred that such excessive reclining sitting position would have made him vulnerable to a fall, because, as Michael commented, it was dangerous. Based on the inference of the Applicant having assumed an unsafe sitting posture, I find, on the balance of probabilities, that the Accident had likely been caused by his own carelessness.
86. For these reasons, I conclude that the Respondent’s allegation that the Applicant had fabricated the Accident is not proved. The Respondent has adduced insufficient evidence to prove on the balance of probabilities that the Chair could not have been toppled over in the way the Applicant described. I find on balance that the Accident was not contrived but was likely due to the Applicant’s own negligence by having assumed an unsafe sitting position.
87. In conclusion, I find that the Applicant succeeds in proving that the Accident arose out of and in the course of the employment, and is within the meaning of s 5(1). The Respondent is liable to pay him compensation.
II: QUANTUM
E. Injuries and treatments
88. As stated in §45 above, the Applicant attended the A&E Department of Alice Ho Miu Ling Nethersole Hospital after the Accident. He was discharged the same day. The Applicant continued with medical treatments in both private and government sectors for more than a year.
(1) Prince of Wales Hospital
(a) A&E Department
(i) On 9 December 2015, the Applicant complained to the doctor of lower back and neck pain. The doctor[18] found that there was no tenderness at the neck and back with active range of motion of the neck.
(ii) There were 8 more attendances between 20 December 2015 and 24 April 2016 reportedly for neck and low back pain.
(b) Physiotherapy Department
Upon referral, the Applicant only attended twice - initial assessment on 13 January 2016 and a treatment session as at 2 February 2016[19].
(c) Neurospine clinic
Upon referral, the Applicant consulted the clinic from 27 May 2016 until 12 May 2017[20].
(2) Other Government Clinics
(i) On 1 March 2016, the Applicant attended Lek Yuen General Outpatient Clinic with 8 follow-up visits, ending on 9 May 2016[21].
(ii) In December 2015, and the months of January, February, March and May 2016, the Applicant attended other government clinics and the doctors reported similar findings of neck and lower back pain[22].
(3) Private consultations
The Applicant sought treatment from private doctors on 3 December 2015, 16 and 18 December 2015, 11 and 15 February 2016, and 3 April 2016[23], similar findings of neck and low back pain were reported.
(4) Medical examinations arranged by the Respondent
(i) On 24 December 2015, Dr Lee On Bong of Union Hospital, the orthopaedic doctor arranged by the Respondent, examined the Applicant. He found[24] diffuse tenderness over the lower cervical and lumbar regions; muscle spasm over the neck and lower back and decreased range of neck movement.
(ii) On 23 May 2016, Dr Baldwin Chan, a private orthopaedic doctor arranged by the Respondent’s insurer, examined the Applicant. Dr Chan found[25] diffuse tenderness over his lumbar spine on palpation, but there was no muscle spasm. There was “diffuse weakness of lower limb at 5-/5 with cog-wheeling on both sides”. Positive findings were disclosed from the Waddell’s test in relation to “Non-anatomical tenderness” and “sensory disturbance”; and from the simulation tests in relation to the “Truncal rotation”.
F. The Applicant did not resume gainful employment
89. The Applicant was granted intermittent sick leave of 522.5 days, ending on 18 May 2017. On 6 April 2017, the Applicant tendered his resignation by giving 3 months’ notice. His last day of employment with the Respondent was 5 July 2017. Since the Accident until the date of trial, the Applicant had not resumed any gainful employment.
90. While the Applicant was still on sick leave with nothing to do, the Applicant stated[26] that he wanted to try out whether he could do any work. Hence, he incorporated two companies - Pioneer International Investigation Limited (Pioneer) and Ever Bright Claims Consultants Limited (Ever Bright), respectively on 25 and 26 July 2016 while he was on sick leave. The Applicant averred that these two companies were inactive companies with no trading.
91. The Applicant was Ever Bright’s first and the sole director until his resignation from the directorship on 2 July 2019[27]. According to the Applicant[28], Ever Bright provides consultancy services for compensation claims (including employees’ compensation claims) and disputed civil claims[29]. Before his resignation, he was responsible for all the decision-making of the company. However, despite an overall improvement of his injuries , he felt that the residual pain in his neck and lower back[30] had weakened his strength and affected his concentration at work[31], which had made it increasingly difficult for him to cope with his commitments and to properly discharge his duty as the director. Hence, in July 2019, he resigned as the director, and his wife took his place to become the sole director. Before his wife’s appointment as the director, the Applicant stated that she was not involved with the management of the company at all. Since his resignation from the company, the Applicant said that he had absolutely no involvement with the company and would not discuss the company’s affairs with his wife.
92. It should however be mentioned that Ever Bright’s company records filed with the Companies Registry disclosed a much earlier date of the wife’s appointment as a director - 1 October 2016. The Applicant admitted in his answer to the interrogatories[32] that a mistake had been made.
93. The Applicant was Pioneer’s first director and had remained so up to the time of the trial.[33] According to the Applicant, Pioneer was incorporated to provide investigative services of companies, financial affairs, movement of persons, extra-marital affairs etc.[34] Allegedly, it was a stagnant company with no active trading. This, the Applicant stated, had allowed him to continue to act as the director of Pioneer.
94. The Applicant stated that he was unable to find suitable employment despite his active job seeking, including conducting searches through internet platforms such as JobsDB (a job-seeking website). He also stated that he found some prospective employers had shown hesitation to hire him when they learned of the present proceedings.
95. Notwithstanding the admitted improvement of his residual pain, the Applicant stated he had not resumed his pre-Accident job as an accountant. He explained that since his work before the Accident was mainly based in Mainland China, he had made several trips to attend interviews in the Mainland. However, he felt his pain worsened after each trip. Hence, the Applicant felt that his prospects of finding employment in the Mainland were constrained by the strain of the travel. Above all, he also felt that the residual pain in his neck and back had affected his mental concentration, and that his ability to do calculations and study documents had therefore been adversely affected.
96. Lastly, the Applicant stated that for most of 2020, he was in Mainland China to partly recuperate (“休養”), and partly to continue with his job search.
G. The joint orthopaedic expert evidence
97. In the Certificate of Review of Assessment by way of Form 9 (Form 9) dated 18 October 2018, the Medical Assessment Board (MAB) of the Labour Department set out the Applicant’s injuries: “Neck and Lower Back Injury resulting in Neck Pain and Stiffness”. A total of 522.5 days of sick leave (the intermittent sick leave periods from the Accident Date to 18 May 2017), and 2.5% for the percentage of the permanent loss of earning capacity (LOEC) having been assessed by the MAB in Form 9.
98. The Respondent appealed against Form 9, and joint orthopaedic experts of Dr Lau Sing Ki Kenric (Dr Lau) for the Applicant, and Dr Tsoi Chi Wah Danny (Dr Tsoi) for the Respondent, were appointed. After the Applicant was examined on 4 April 2019, the Joint Orthopaedic Expert Report dated 30 May 2019 (JOR) was prepared, which was admitted as agreed evidence without calling the experts.
99. The experts found diffuse tenderness on the right side of the spine, and pain on the right neck during motions. The X-ray of the cervical spine showed loss of cervical lordosis and mild cervical spondylosis especially at C5/6 level. The experts agreed that the Applicant had pre-existing degeneration in his cervical and lumbar spine. They also identified the following agreed diagnoses (JOR §11.1):-
“A. Contusion of head, right elbow and low back [(Diagnosis A)]
B. Sprain injury to neck and low back [(Diagnosis B)]
C. Cervical spondylosis and lumbar spondylosis with mild protrusion of discs and osteophytes [(Diagnosis C)]
D. Residual headache, neck pain and stiffness and right upper limb weakness and numbness [(Diagnosis D)]”
100. The experts agreed that Diagnoses A and B were solely and directly caused by the Accident.
101. It was also agreed that Diagnosis C was not caused by the Accident but was, according to Dr Lau, due to pre-existing degeneration of the lumbar spine. Dr Tsoi opined that the pre-existing degeneration was unrelated to the Accident.
102. Both experts agreed that the symptoms of the “right upper limb weakness” in Diagnosis D could not be explained[35]. As for symptoms of “residual headache, neck pain and stiffness”, Dr Lau opined that these might be the “result of residual inflammation of the discs, facet joints, muscles and ligaments”. On the other hand, Dr Tsoi stated that since the symptoms were not supported by any objective sign or government medical reports, the alleged disabilities were not genuine[36].
103. As for the sick leave period, Dr Lau agreed with the assessment in Form 9, but Dr Tsoi opined that the Applicant had only suffered uncomplicated soft tissue injuries caused by the Accident. A reasonable sick leave period ought to have been up to 6 months.
104. The experts agreed that the Applicant could resume working as an accountant. Dr Lau opined that due to the Applicant’s age and education level, and the severity of the injuries and the treatments the Applicant received, the LOEC should be 3%. Dr Tsoi assessed the LOEC at 2%.
H. Court’s findings of the Applicant’s injuries and disabilities
H.1 Diagnoses A and B
105. As both experts agreed that Diagnoses A and B - (A) contusion of the head, right elbow and lower back; and (B) sprained neck and lower back - were directly caused by the Accident, I therefore find that the Applicant had suffered, as a result of the Accident, contusion and sprain injuries around the head, right elbow and lower back.
H.2 Diagnosis C
106. “Cervical spondylosis and lumbar spondylosis” as diagnosed in Diagnosis C were agreed to have been unrelated to the Accident, but due to pre-existing degeneration. Dr Lau however opined that the Accident might have exacerbated the degenerative change to the intervertebral discs and facet joints, with residual inflammation.
107. On the other hand, Dr Tsoi opined that the intermittent neck and back pain that the Applicant suffered were caused by the pre-existing degeneration, and could have affected the Applicant even without the injuries that he suffered from the Accident.
108. The Applicant’s residual pain, according to the opinions of the experts, appears to have been concurrent pre-existing symptoms of the pre-existing degeneration and of the injuries caused by the Accident. In such instance, the Applicant’s pre-existing condition or diseases are injuries that would attract employees’ compensation without any apportionment: see the Court of Final Appeal decision in LKK Trans Ltd v Wong Hoi Chung[37]. Mr Cheng did not seem to be seriously disputing that approach.
109. Hence, in assessing the Applicant’s incapacity, I will also have regard to the pre-existing condition diagnosed in Diagnosis C.
H.3 Diagnosis D
110. In Diagnosis D, the Applicant was found to have suffered from residual symptoms in two different areas of his body - head and neck pain and upper limb stiffness and weakness. Dr Lau opined that all the residual symptoms were the result of “residual inflammation of the discs, facet joints, muscles and ligaments”. Dr Tsoi believed that the injuries caused by the Accident would have been musculotendinous strain of neck and lower back with a minor head concussion and right elbow contusion. Neurological injury was unlikely.
111. As for symptoms of the upper limbs, it is common ground that both experts were unable to find any objective evidence to support these symptoms, that they could not, in the words of Dr Lau, be explained[38]. In the circumstances, I’d be inclined to find that these symptoms were not relevant injuries for the purpose of assessment.
112. As for symptoms of the head and neck, I find Dr Lau’s opinion that they might have been caused by the “residual inflammation of the discs, facet joints, muscles and ligaments” uncorroborated. I am unable to find any supporting medical evidence to support his opinion.
113. It is pertinently to note that before the joint examination by the joint experts, the Applicant had already been found to have shown signs of exaggeration by the Waddell’s test and the simulation test administered by Dr Baldwin Chan in 2016 (see §88(4)(ii) above). In the “Appendix” to his report, Dr Chan stated that the “pain-focused behaviour was evidence with 3 out of 5 Waddell’s signs … his residual complaint was mainly non-verifiable pain without support of significant objective signs”[39]. In 2016, Dr Chan already found that there was no tenderness on his neck when he was distracted. Dr Chan also reported that the Applicant’s complaint of headache was increased only when neck pain increased. Hence, it would appear that his residual headache and neck pain appeared to have been interconnected. The Applicant’s residual pain of his neck and head was already very mild, and might have been exaggerated, I’m therefore inclined to believe that Dr Lau had not critically examined the genuineness of the Applicant’s subjective complaints.
114. Mr Cheng was correct in suggesting that a more cautious approach should be adopted when the Applicant made subjective complaints of disabilities[40]. The Applicant’s medical treatment and sick leave had already ended for about 2 years when the Applicant was examined by the experts. Not only am I unable to find any evidence to support the Applicant’s subjective complaints, but the early signs of the Applicant’s exaggeration of symptoms, in my view, have substantially undermined the genuineness of the Applicant’s subjective complaints.
115. In conclusion, I find that all the residual symptoms as identified in Diagnosis D are unlikely to have been attributable to the Accident.
H.4 Summary of the Applicant’s injuries
116. For the reasons stated above, I find that as a result of the Accident, the Applicant suffered the following injuries that attract compensation in these proceedings:-
(1) Contusion of head, right elbow and lower back;
(2) Sprain injury to neck and lower back; and
(3) Residual pain caused by the pre-existing condition of cervical spondylosis and lumbar spondylosis.
I. The Extent of the Applicant’s Incapacity after the Accident
117. In his contentions, Mr Cheng stated that not only had the Applicant failed to adduce any convincing evidence to support his assertion of how his residual pain had prevented him from seeking gainful employment, the fact of the incorporation of Pioneer and Ever Bright had also completely undermined such assertion. It was submitted that since the Applicant was able to set up these companies and act as their director within 8 months after the Accident in the midst of his sick leave, it is therefore highly plausible that the Applicant should have been equally capable of working as an accountant.
118. Mr Cheng also suggested that the Applicant’s alleged “weakened strength” that forced him to retire from his directorship was unbelievable. The incredibility of the Applicant’s evidence is clearly evidenced, Mr Cheng submitted, by the alleged mistake that was made about the date of the appointment of his wife as Ever Bright’s director (see §92). Mr Cheng referred to the “Notice of Change of Company Secretary and Director (Appointment/Cessation)” in the prescribed Form - appointment of the Applicant’s wife as Ever Bright’s director as of 1 October 2016, and stated that this filing showed that in fact it was the Applicant who filed the notice[41]. Mr Cheng therefore submitted that the Applicant’s explanation as to how he had made the mistake in his answer to the interrogatories should not be accepted. It was suggested that the Applicant, as a professional accountant, could not have made such a rudimentary mistake about the filing of the company documents.
119. Mr Cheng also suggested that the Applicant’s evidence of his alleged residual pain was incredible. Even on his own account, the Applicant’s residual pain was only intermittent in 2017, and could be managed by painkillers. The residual discomfort, even if it still persisted, Mr Cheng stated, would not have prevented the Applicant from travelling to the Mainland. By having spent a substantial part of 2020 in Mainland China, Mr Cheng stated, the Applicant was clearly able to stay in Mainland China to work.
120. According to the treatments and injuries set out in Section E above, for the first 6 months from December 2015 to about May 2016 (see §88 above) after the Accident, the Applicant had sought intensive medical treatment in both private and government sectors. His pain was shown to have been managed conservatively by Panadol and analgesic palm for pain relief. After having carefully considered all the evidence, I’m inclined to believe that the Applicant had suffered residual pain for the first 6 months after the Accident.
121. After the Applicant had received intensive treatment for 6 months, I find that the Applicant’s pain was shown to have been substantially resolved, and to have subsided. I believe that his alleged intermittent and sometimes residual pain after that period was exaggerated and not genuine.
122. The Applicant’s sufficient recovery, in my finding, can be inferred, for example, from the fact that the Applicant had stopped physiotherapy treatment after one session as at 2 February 2016. Had the pain persisted as he alleged, there was no logical reason why he did not continue with this common form of conservative treatment for pain management.
123. As early as 23 May 2016, the Applicant had already been found to have exhibited signs of exaggeration: Dr Baldwin Chan’s findings §88(4)(ii) above.
124. Pertinently, the Applicant incorporated Ever Bright and Pioneer in July 2016 while he was still granted sick leave certificates. More importantly, at that time the Applicant was still the Respondent’s employee. In my view, the formation of these two companies enables me to clearly infer that the Applicant had substantially recovered from the injuries after 6 months.
125. The Applicant was the founding member and sole director of Pioneer up to the time of the trial; and of Ever Bright up to July 2019. From his description of the businesses of these companies, I am under the impression that the nature of the business of these companies would have required a lot of the Applicant’s personal involvement and input. I do not believe the picture the Applicant tried to paint of these companies that they were inactive entities. Were these companies as dormant and as inactive as the Applicant had tried to present, I do not think there is any logical reason as to why it would have been necessary for him to hand over the management of Ever Bright to his wife allegedly in 2019 due to his residual disabilities.
126. I also do not believe the Applicant’s explanation of having spent a large part of 2020 in Mainland China to allegedly recuperate from his injuries and to look for jobs. His evidence was totally unsupported and therefore only a bare assertion. I find the Applicant was an opportunist, and had a tendency to exaggerate his injuries.
127. All in all, on the totality of all the evidence, I find that the Applicant was likely to have substantially recovered from the injuries he suffered from the Accident after several months of rest and treatment. I do not believe that after 6 months of continuous treatments and rest, the Applicant still suffered from residual disabilities so debilitating that he was unable to resume pre-accident employment.
128. Hence, I’m inclined to accept Dr Tsoi’s opinion that reasonable sick leave should be around 6 months. I therefore find that the Respondent has adduced evidence in rebutting the s 10(2) presumption deeming the sick leave certificates as evidence of the periods of the Applicant’s total temporary incapacity. I therefore allow the Respondent’s appeal against the 522.5 days of the sick leave period assessed in Form 9.
129. As for the appropriate percentage of LOEC, Mr Cheng invited this court not to follow any of the expert’s opinions, but to find no LOEC and to assess a zero percentage.
130. In support of his contentions, Mr Cheng stated that since the Applicant was shown to have been perfectly capable of resuming his pre-accident profession as an accountant after 6 months, the Applicant’s residual pain or disabilities would have no impact on his capacity to work as an accountant.
131. It is trite that in assessing the appropriate percentage of an employee’s LOEC, a court should evaluate all the factual and medical evidence, including medical expert opinion. Ultimately, it is for the court to come to its conclusion[42].
132. To consider Mr Cheng’s submissions in context, I think I should start with a consideration of the definition of “permanent partial incapacity” (which entitles an employee to compensation under s 9).
133. “Partial incapacity” of a permanent nature is defined in s 3 as follows:-
“… where the incapacity is of a permanent nature, such incapacity (…) as reduces his earning capacity, present or future, in any employment which he was capable of undertaking at that time”.
134. By the above definition, the concept of earning capacity, in my view, should not be limited to the present, but should also be concerned with a continuing state in respect of an employee’s future potential earning capacity. Accordingly, I do not think that an employee should be automatically found to have suffered no permanent LOEC even if he is able to return to his pre-accident employment without suffering any reduction in salary. In such a situation, when assessing an employee’s extent of LOEC, a court will have to consider various factors “which include the injuries suffered by the employee and the resulting impairment as well as other matters of fact such as the employee’s age, education and background, his degree of difficulty in finding placement in the labour market and a comparison of the earnings that he is capable of with his impairment and the earnings he would have been able to make but for his injuries”[43].
135. I believe the above should be the correct approach, and will be accordingly guided by it.
136. I am disinclined to adopt either the assessment of 3% by Dr Lau or 2% by Dr Tsoi for the reason that both experts have adopted an incorrect approach in respect of the pre-existing condition. Dr Lau had adopted an apportionment approach while Dr Tsoi had excluded pre-existing condition. A discount for pre-existing conditions had been authoritatively decided against in LKK (supra) above. I therefore do not think I should rely on the experts’ assessment, and should look at the matter afresh.
137. In my assessment, the MAB in its Form 9 appears to have comprehensively stated the Applicant’s injuries (“Neck and Lower Back Injury resulting in Neck Pain and Stiffness”) in the proper context of “permanent partial incapacity” – injuries and disabilities that were caused or contributed to by pre-existing conditions and the injuries of the Accident. “Neck injury” was directly caused by the Accident (see Diagnosis B); and the “lower back injury” is substantially a pre-existing condition (see Diagnosis C).
138. The combination of the injuries stated in Form 9 would likely have impacted on the Applicant’s incapacity in the future, especially Diagnosis C. The Applicant’s job as an accountant is sedentary work that involves a high degree of mental concentration. These residual symptoms, especially back pain, would likely curtail the amount of work he can undertake and shorten the duration of his working hours.
139. For these reasons, I reject Mr Cheng’s contentions that the Applicant has suffered no LOEC. Since I prefer the MAB’s assessment as a more accurate assessment of the Applicant’s LOEC, I therefore adopt its assessment of 2.5%.
J. Total amount of compensation
Section 9
The Applicant was 38 at the time of the Accident. Pursuant to s 7(1)(a), the compensation payable should be for 96 months in the amount specified in the Sixth Schedule, which is capped at $26,070. Hence, the amount of compensation is $26,070 x 2.5% x 96 = $62,568.
Section 10
$50,000 x 4/5 x 6 months = $240,000.
Section 10A
$4,060 as agreed.
140. I assess the total amount of compensation at $306,628 ($62,568+ $240,000 + $4,060).
K. Order
141. I find that the Applicant has proved his claim and I therefore enter judgment for the sum of $306,628 in favour of the Applicant together with the usual interest at half the judgement rate from 1 December 2015 to the date of judgment, and thereafter at the judgment rate until payment.
142. I further make a costs order nisi that the Respondent do pay the costs of these proceedings, to be taxed if not agreed. If no application is made within 14 days to vary the said costs order nisi, it shall become a costs order absolute.
143. Lastly, I wish to thank counsel for his assistance.
| ( Katina Levy )
District Judge |
The applicant was not represented and appeared in person
Mr Alfred Cheng, instructed by Hastings & Co, for the respondent
[1] Compensation in case of permanent partial incapacity.
[2] Compensation in case of temporary incapacity.
[3] Payment of medical expenses.
[4] All references in this Judgment are, unless otherwise stated, references to this Ordinance.
[5] TB 500N-P.
[6] Agreed description of the 1st court demonstration by the Applicant:
“The Applicant sat on the Chair (with his right ankle on his left thigh), holding up a file of documents and leaned back. As he leaned back, the seat cushion and the back of the Chair moved together as one piece. The back of the Chair tilted about 45 degrees away from its original position. The Chair, with the Applicant sitting on it, did not fall. The Applicant’s legs were not under the table”.
[7] Agreed description of the 3rd court demonstration by the Respondent’s solicitor:
“The solicitor sat on the Chair (with his right ankle on his left thigh) and leaned back. As the solicitor leaned back, the seat cushion and the back of the Chair moved together as one piece. The back of the Chair titled about 50 degrees away from the original position. The seat cushion and the back of the Chair could not be titled further. The back of the neck [of the solicitor] was supported by the edge of the back, and he titled his head upwards so that his head was almost parallel to the floor. The solicitor was around 1.68 meters tall, and the Applicant was around 1.68 meters tall. The solicitors’ left heel was lifted from the floor with the tip of his left shoe on the floor. He maintained this position for more than 2 seconds. The Chair, with the solicitor sitting on it, did not fall”.
[8] Agreed description of the 2nd court demonstration by the Applicant:
“The Applicant lay the Chair down on the floor standing at an angle in front of the Chair and by pushing the back of the Chair onto the floor with one hand, and gripping the seat with the other hand so that the seat cushion of the Chair formed a 90º angle with the floor surface and the back of the Chair was resting on the floor. Only the upper part of the back of the Chair touched the floor”.
[9] Paragraph 4 of Michael’s witness statement: “當時他的身體向後靠，把辦公椅的椅背壓得極低，導致椅背大幅傾斜。我認為該坐姿不安全，容易引致意外”.
[10] “……整親，要去醫院”.
[11] (unrep) DCEC 2705/2016, 31 December 2020.
[12]Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd & Ors (unrep) HCA 3523/2002, Chung J, 13 August 2005; Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513.
[13] TB 730F, N-S.
[14] Exh. “P9” produced at the trial of the Labour Summonses, TB 779.
[15]楊艷娥對保良局第一張永慶中學 [2019] 5 HKLRD 515quoting Sit Wing Yi Sibly v Berton Industrial Ltd [2013] 5 HKLRD 225.
[16] Transcript, TB 508S-U.
[17] TB 189-196.
[18] The medical report of the A&E Department of Prince of Wales Hospital dated 29 August 2017, TB 149-150.
[19] TB 133.
[20] TB 154.
[21] TB 153.
[22] TB 140, 142-146, 152-154, 156, 163-164.
[23] TB 157-162.
[24] TB 155.
[25] Report dated 20 June 2016, TB 135-139.
[26] Evidence under cross-examination.
[27] TB 414-415.
[28] The Applicant’s affirmations filed in the PI Action in answer to the interrogatories.
[29] Evidence on 2nd day of trial on 25 January 2021.
[30] TB 472.
[31] TB 465.
[32] Evidence given at cross-examination on 2nd day of trial on 25 January 2021.
[33] As of 25 August 2020 as shown in the latest annual return: TB 386.
[34] Evidence on 2nd day of trial on 25 January 2021.
[35] Dr Lau stated it was because there was no compression on the nerve roots. Dr Tsoi gave the reason for the absence of any orthopaedic pathology such as the MRI result which “revealed protruded C5-6 disc on left side but not on right side”.
[36] TB 176-178.
[37] [2006] HKCU 330.
[38] TB 176.
[39] TB 139.
[40]Mok Kam Ping v Yip Ka Kai (unrep) HCPI 546/2014, 5 October 2016, G Lam J, at §58 and 林沛桂訴叶志剛[2020] HKCFI 3098 at §19.
[41] TB 403-405.
[42] See, for example, Kan Wai Yip v Everbest Port Services Ltd [2009] HKCU 133.
[43]Kan Wai Yip (ibid) at §43.