Butterworths Hong Kong Employees’ Compensation Handbook

(1) Subject to subsection (1A), where permanent partial incapacity results from the injury the amount of compensation shall be-

(a) in the case of an injury specified in the First Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is specified therein as being the percentage of the loss of earning capacity caused by that injury;

(aa) in the case of a combination of injuries specified in the First Schedule, the aggregate of the compensation which would have been payable in respect of the injuries; and

(b) in the case of an injury not specified in the First Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time:

(i) in the case of injury to any part of the body specified in the First Schedule not amounting to the loss of that part, the loss of earning capacity permanently caused by that injury, expressed as a percentage, shall not exceed the appropriate percentage specified in the First Schedule in respect of the loss of such part;

(ii) in the case of injury not specified in the First Schedule, the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentages specified in that Schedule and to the Note thereto.

(a) permanent partial incapacity results from an injury or a combination of injuries (whether or not specified in the First Schedule); and

(b) the percentage of the loss of earning capacity specified or assessed in relation to that injury or combination of injuries in accordance with subsection (1) would be substantially less than the percentage of the loss of earning capacity permanently caused by the injury or injuries in the special circumstances of the employee including, without limiting the generality of the foregoing-

(i) the nature of the injury or injuries in relation to the nature of his former usual employment; and

the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury or injuries in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time. (Added 76 of 1982 s 6).

(2) Where more injuries than one are caused by the same accident, the amount of compensation payable under the provisions of this section shall be aggregated, but not so in any case as to exceed the amount which would have been payable if permanent total incapacity had resulted from the injuries.

(3) For the purposes of this section, permanent partial incapacity shall be deemed to result from an injury where the percentage or aggregate percentage of the loss of earning capacity amounts-

(a) in the case of an incapacity of a permanent nature which results from an injury specified in the First Schedule, to less than 100 per cent as specified in that Schedule; or

(b) in the case of an incapacity of a permanent nature which results from an injury not specified in the First Schedule, to less than 100 per cent as assessed by an Ordinary Assessment Board, a Special Assessment Board or the Court,

and a reference in this subsection to an injury shall include a reference to a combination of injuries whether they are mentioned in paragraph (a) or (b) or in both those paragraphs.

(4) In assessing the loss of earning capacity for the purposes of subsection (3)(b), an Ordinary Assessment Board, a Special Assessment Board or the Court, as the case may be, may but shall not be obliged to give weight to any actual earnings of the employee earned after the accident causing the injury.

The words within the square brackets in subs (1) were added pursuant to s 6 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

Paragraph (ii) in the proviso to subs (1) was substituted pursuant to s 4 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1985 (49 of 1985), commencing 26 July 1985.

Subsection (1A) was added pursuant to s 6 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

Subsections (3) and (4) were added pursuant to s 4 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1985 (49 of 1985), commencing 26 July 1983.

This section does not have an equivalent in the UK Acts. The method of calculating compensation in UK is set out under the Workmen’s Compensation Act 1925 s 9(1), (3).

This important section sets out the method of calculating compensation in cases of permanent partial incapacity. The basic method of calculation is to take a percentage of the ‘compensation which would have been payable in the case of permanent total incapacity’, in other words a percentage of the compensation payable under s 7 by reference to Sch 1. It should be remembered that the relevant date for determining the applicable figure under s 7 is the date of the accident: see notes to s 7 above, and also Chan Kam v Standard Chartered Bank Hong Kong Trustees Ltd [1988] 1 HKC 345, [1991] 2 HKLR 455.

A minimum sum of compensation is stipulated under s 7(2) and Sch 6 of the Ordinance where an injured employee suffered from permanent total incapacity. If an employee suffers permanent partial incapacity, and by reason of his modest earnings the award of compensation worked out by ss 7(1)(a), ss (b), (c) and 9 is less than that assessed with reference to the sum of minimum compensation under s 7(2), the court will adopt the latter method of calculation to make an award of compensation to the employee: see the judgment and corrigendum delivered in Cheung Ming Wai v 張國漢 (Cheung Kwok Hon) (DCEC 223/2005, 17 August 2006, DC, unreported, Chinese judgment).

This section is not intended to and does not overlap with s 10. See the notes to s 10 below.

It has been held that, in respect of assessment of loss of earning capacity, the correct approach is to treat the injured part of the body as a whole and then look to Sch 1 to find an appropriate equivalent injury from which one arrives at a percentage, rather than finding a basis percentage and then making additions: see Shiu Wai Kuen v Chan Hau Man (t/a Chong Yip Transport Co) [1991] 2 HKC 654. For an illustration of the court applying the provisions of subs (1)(b)(i) and (ii): see Chan Yiu Man v 冼錦堂 (Sin Kam Tong, transliteration) & Anor (DCEC 46/2006, 28 February 2007, DC, unreported, [2007] HKCU 347).

For the purpose of assessing the loss of earning capacity the relevant consideration is not the seriousness of the injuries but the effect of the injuries on the earning ability of the injured employee: see Yung Chi Man v Tang Kan Fu t/a Yun Shing Motor Service (DCEC 770/2004, 6 February 2006, DC, unreported, [2006] HKCU 217) at para 24.

This subsection directs the Assessment Board, as well as the court, to assess the permanent partial incapacity which results from the injury complained of, not from a pre-existing condition or from a future re-injury. The board or the court does not have the benefit of hindsight and should not be affixed with the knowledge of subsequent events. The assessment may be one of the potential for suffering from future loss of earning capacity: see Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246.

Medical experts

In employees’ compensation cases, more often than not medical experts will be commissioned to give opinion on the injuries suffered by the victims. The true function of medical experts is to provide independent, unbiased and impartial opinion on matters within his specific area of medical expertise. Medical experts should not be influenced by the pressure of litigation nor should they assume the role of an advocate for the party from whom they receive instructions: see Ikarian Reefer [1993] 2 Lloyd’s Rep 68 and Ansar Mohammad v Global Legend Transportation Ltd (DCEC 1090/2006, 8 May 2007, DC, unreported, [2007] HKCU 788).

Expert witnesses are allowed to give opinion evidence on the basis of the facts, matters and assumptions that are material to the opinions expressed. Other than those arising from their own tests and examinations, the said facts, matters and assumptions should be proved in court by documentary evidence or evidence given by other witnesses. Medical experts are also expected to address clinical factors which by way of examples are set out by District Judge Marlene Ng in Yip Koon Man v Yuen Long Merchants Association Secondary School (DCEC 602/2008, 30 June 2009, DC, unreported):

1 Inconsistencies in the medical history obtained from the claimant and from the medical notes/records/reports;

2 The extent of compliance and motivation in relation to medical treatment/rehabilitation;

3 The results of physical or mental state examination;

4 The presence and extent of any objective or psychiatric impairment.

Medical experts are not expected to give opinion on the percentage of loss of earning capacity: see Tang Shau Tsan v Wealthy Construction Co Ltd (CACV 58/2000, 5 April 2000, CA, unreported, [2000] HKCU 216) and the notes under [9.06] below.

In Yip Koon Man v Yuen Long Merchants Association Secondary School (above), the Court has further made it clear that medical experts are not allowed to address on the employability of injured employees in the job markets (eg. whether they can return to their pre-accident or other forms of gainful employment); since this ‘depends not only on clinical opinion as to his physical or mental capacity in undertaking a particular job given its nature or scope of duties, but also on a host of other factual matters (eg the motivation, willingness and/or efforts of the claimant in finding work) that are fully within the purview of the trial judge’.

Moreover, the veracity of injured employees is also a question of fact for the judge and not for medical experts. It is not for medical experts to ‘prove’ if the claimant is lying or not. Whether the employee exaggerates his symptoms or whether he has genuine disability is a finding of fact to be made by the Court after giving consideration to all the evidence. It is with the realm of the trial judge but not medical experts to draw inference on the factual evidence adduced before the Court: Yip Koon Man v Yuen Long Merchants Association Secondary School (above).

O 38 r 36(1)(a) of the RDC provides inter alia that except with the leave of the court, no expert evidence may be adduced at the trial or hearing of any cause or matter unless the party seeking to adduce the evidence has applied to the court to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction given on the application. Without any expert directions given by the court, service of any expert report will not have any meaning and no such evidence may be adduced: see Hussain Tanweer v Focus Roller Shutter Ltd (DCEC 1145/2005, 18 September 2006, DC, unreported, [2006] HKCU 1576) paras 22 and 23.

It is further provided, inter alia, under O 38 r 37 of the RDC that unless the court considers that there are special reasons for not doing so, it shall direct that the substance of the evidence be disclosed in the form of a written report or reports to such other parties and within such period as the court may specify (para 24).

Even if expert directions had been given, a separate application had to be made to the court if the parties desire to adduce such expert evidence by hearsay. Pursuant to O 38 r 41 of the RDC, where a party alleges that the maker of the statement containing expert evidence cannot or should not be called as a witness, the court may direct that the provisions in rr 20 to 22 (ie the hearsay rules) shall apply with such modifications as the court thinks fit (para 25).

In Wong Cheuk v Falcon Insurance Co (HK) Ltd (DCEC 688/2008, 20 May 2009, DC, unreported), District Judge Marlene Ng distinguished the difference between a professional factual witness and a medical expert witness as follows:

‘A treating doctor renders his medical report and/or testify in court as a professional witness on observed facts (eg what the patient told him, what symptoms were reported, what investigation/examination was undertaken, what medical advice/treatment was given, etc) rather than offer expert medical opinion (eg opinion on the causation, aetiology, diagnosis and/or prognosis etc of the injuries). Thus, information from the treating doctor is normally non-controversial, and his medical reports/records are usually admitted without calling him to testify in court.

…

On the other hand, an expert doctor is qualified by his experience and expertise in a medical specialty, and usually has no prior therapeutic involvement with the injured party. He is expected to give impartial opinion on particular medical issue(s) to assist the court on the basis of assumptions of fact provided to him in written or other form and/or his own examination of the injured party. His opinion/report is for the benefit of the court and independent of such party. Permission of the court is generally required for adducing such expert opinion evidence at trial.’

A claimant still has the obligation to seek leave from the Court to adduce expert evidence from a medical practitioner notwithstanding that he has previously acted as the claimant’s treating doctor. If the claimant has engaged yet another medical expert, in terms of justice and for promoting a sense of reasonable proportion between the parties, matters of opinion expressed in his treating doctor’s report should be redacted in particular when there have been directions by the Court imposing limitation of expert medical evidence to one expert for each party: see Wong Cheuk v Falcon Insurance Co (HK) Ltd (above).

Accordingly, practitioners are reminded to take special care in giving instructions to doctors for the collection of medical reports. In requesting for a treatment report, there should be no attempt to ask the doctor to trespass into expert territory who should bear in mind the distinction between fact and opinion: see Wong Cheuk v Falcon Insurance Co (HK) Ltd (above).

The guiding criteria on admissibility of expert reports are: necessity, relevance and probative value (Arfan Muhammed v MPS Engineering Ltd (HCPI 457/2003, 30 June 2005, CFI, unreported) referring to the decision of Suffiad J in Chan Kwok Ming v Hitachi Electric Service Co Ltd (HCPI 322/2002, unreported), followed in Shum Tsz Yan v Union Medical Centre Ltd t/a Shatin International Medical Centre Union Hospital (DCEC 1135/2004, 19 July 2006, DC, unreported, [2006] HKCU 1212). The court does not have power to forbid a party to obtain an expert report but he runs the risk for not being able to recover its costs if leave is not given to adduce the report: see Arfan Muhammed v MPS Engineering Ltd (HCPI 457/2003, above) at para 7. While the Court may restrict expert medical evidence to what it reasonably required for a proper adjudication of the claim, each case must turn on its own facts.

In Abid Khan v Queen Wan Limited (DCEC 71/2008, 11 June 2009, DC, unreported), an employee who sustained injuries to his back and knee had not received any psychiatric treatment and has not even been referred to psychiatric service by his treating doctors before his solicitors applied for leave to adduce psychiatric expert evidence. What he had was only a first psychiatric appointment fixed with a government hospital. No recognizable psychiatric illness was mentioned in the available medical reports; nor can any be found in the Certificate of Assessment (Form 7) and the Certificate of Review of Assessment (Form 9). It was held that this alone did not preclude introduction of psychiatric expert evidence. Whilst not convinced that psychiatric expert evidence was relevant or necessary, before fixing a date for trial the Court considered it relevant and useful to await the availability of a report from the government psychiatric clinic on the employee’s mental condition following his first psychiatric appointment in light of the ‘abnormal’ response of the employee to his injuries as documented in the available reports.

For further illustrations of the court deciding on the admissibility of psychiatric expert evidence in employee’s compensation cases on the above criteria: see Fong Bun Mo v Hong Kong Airport Services Ltd (DCEC 1200/2005, 24 March 2006, DC, unreported, [2006] HKCU 533); Ip Sau Lin v Hospital Authority [2009] 2 HKC 383; and Wong Ka Yee v Gay Giano International Ltd (DCEC 436/2007, 4 August 2009, DC, unreported); and by analogy in the context of personal injuries claims: see Wong Hin Pui v Mok Ying Kit & Anor [2000] 1 HKLRD 856; Ho Man Fong v Sime Darby Motor Services Ltd (HCPI 1096/2003, 19 July 2005, CFI, unreported); Lam Hing Choi v Yip King On & Ors (HCPI 263/2006, 20 March 2008, CFI, unreported) and Ip Sau Lin (葉壽年) v Hospital Authority (醫院管理局) (DCEC 584/2007, 4 April 2009, DC, unreported).

On issues of relevance and probative value, the following observations made by the Chu J at paras 11 and 12 in the judgment of Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd [2002] 4 HKC 225, [2002] 3 HKLRD 507 were followed by the court in Shum Tsz Yan v Union Medical Centre Ltd t/a Shatin International Medical Centre Union Hospital above and Fong Bun Mo v Hong Kong Airport Services Ltd above:

“11. Modern judicial authorities recognize that the court has inherent power to rule on the admissibility of expert evidence at a pre-trial stage··· Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse the admission of such evidence. But where the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial···”

“12. In deciding whether certain expert evidence should be received, the relevant test has been stated to be a two-stage one. Firstly, the evidence has to be admissible as ‘expert evidence’ for the purpose of section 58 of the Evidence Ordinance, Cap 8. Secondly, the evidence must be relevant, in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved···”

In Lau Lai Shan v Hospital Authority (DCEC 784/2007, 29 February 2008, DC, unreported), it was further explained by District Judge Marlene Ng in making a judgment on the usefulness of the expert evidence to be adduced, the relevant considerations would include (1) how cogent the proposed expert evidence will be; (2) how helpful it will be in resolving any of the issues in the case; and (3) how much it will cost and the relationship of that cost to the sum at stake.

The parties should not defer obtaining directions from the court on expert evidence until the reports are to hand as “the court’s hands··· will not be tied by the parties’ doings”, and it is open to the Court in due course to give directions otherwise. Practitioners are also under a duty to advise their clients to bring forth their cases to the court for prompt and comprehensive case management directions: see Lee Sau Fat v F H Security Services Co Ltd (DCEC 1720/2006, DCEC 120/2007 and DCEC 1471/2008, 6 July 2009, DC unreported).

In Lau Wai Ping v Hsu Tsui Fong & Ors t/a Yiu Fung Transportation Co (DCEC 1563/2008, 13 May 2009, DC, unreported), practitioners are reminded about the importance of adopting an overall approach in obtaining case management directions and/or timetable on collection of, inter alia, expert evidence on account of the interaction between corresponding employees’ compensation proceedings and common law action which involve the same parties in respect of the same accident.

In legally aided cases, it is accepted by the Court that in using public funds the Director of Legal Aid requires reasonable time to approve nomination of experts. However, solicitors acting for the aided persons are expected to seek ‘anticipatory approval’ from the Director of Legal Aid for engagement of medical experts for the compliance of directions to be given by the Court on expert evidence to avoid unnecessary adjournment of direction hearings: see Lau Wai Ping v Hsu Tsui Fong & Ors t/a Yiu Fung Transportation Co (above).

There is no absolute rule that the parties should await the expiry of the injured employee’s sick leave; or the issuance of a Certificate of Assessment (Form 7) or a Certificate of Review of Assessment (Form 9) before asking the court to give directions on expert evidence or assess compensation with reference to treatment received by the injured employee and/or expert medical evidence: see Lau Wai Ping v Hsu Tsui Fong & Ors t/a Yiu Fung Transportation Co, above; Kan Wai Yip v Everbest Port Services Ltd (永豐港口服務有限公司) (DCEC 383/2008, 3 February 2009, DC, unreported) and Lee Sau Fat v F H Security Services Co Ltd (above). It is recognized by the Court that it is not uncommon to find employees’ compensation cases without any Certificate of Assessment (Form 7) or a Certificate of Review of Assessment (Form 9). The reason being that after investigation the Commissioner of Labour may not refer a claim to an Ordinary Assessment Board in pursuance of s 16D(4); or that the Board may decline to make any assessment. The progress of an employees’ compensation claim, similar to that of any litigation, was said to be ‘very much within the realms of discretion of the court and is not necessarily dictated by a single circumstance’, let alone a party-driven approach on collection of expert evidence and/or settlement negotiations: see Lee Sau Fat v F H Security Services Co Ltd (above).

The Court retains control on how expert evidence should be obtained and presented with a view to saving costs and fairly disposing of the cause or matter: see Mok King Sun v Turn Round Company Ltd & Ors (HCPI 865/2007, 25 March 2009, CFI, unreported, para. 25); Ansar Mohammad v Global Legend Transportation Ltd (DCEC 1090/2006, 8 May 2007, DC, unreported, [2007] HKCU 788) para. 42; Lau Lai Shan v Hospital Authority (above); Wong Cheuk v Falcon Insurance Co (HK) Ltd (DCEC 688/2008, 20 May 2009, DC, unreported); and Chan Lai Ying v A S Watson & Co Ltd (DCEC 1767/2006, 31 July 2009, DC, unreported, para. 33).

As a matter of case management, the court will quite often direct the parties’ respective medical experts to have a joint medical examination on the victim of the accident and to prepare a joint expert report which sets out matter on which they agree and/or disagree and the reasons for non-agreement. The benefits of a joint medical examination/report and the downsides of a solo approach were elaborated in (Ansar Mohammad v Global Legend Transportation Ltd (above)); Lau Lai Shan v Hospital Authority (above); Wong Cheuk v Falcon Insurance Co (HK) Ltd (DCEC 688/2008, 20 May 2009, DC, unreported); and Mok King Sun v Turn Round Company Ltd & Ors (above). It was observed by District Judge Marlene Ng that ‘overzealous adversarialism has a deleterious effect on overall civil justice’. The learned judge also hoped that the ‘Civil Justice Reform, PD 18.1 and PD 18.2 will bring about proactive change to the mindset that underpins civil litigation culture so as to facilitate the underlying objectives’: see Chan Lai Ying v AS Watson & Co Ltd (above).

However, it is not an invariable rule or practice that joint medical examinations must be conducted by the parties. Notwithstanding initial directions given by the court on joint medical examinations and the preparation of joint expert reports, the parties still have the liberty to apply for alternative directions if those directions given initially subsequently turn out to be truly unworkable - open hostility between the experts for example. The court has a discretion in giving directions on expert evidence which depends on the facts of individual cases. A balancing exercise is essential to “resolve the tension between adversarial model and the court’s case management powers for just and efficient resolution of cases”: see Ansar Mohammad v Global Legend Transportation Ltd (above) and Lau Lai Shan v Hospital Authority (above).

Practitioners should exercise care in choosing medical experts to give evidence since the court may exercise its discretion to refuse admission of expert evidence belonging to someone who, in the eyes of the court, does not possess the necessary expertise and whose opinion is accordingly irrelevant: see Chau Muk Chi v Chinagold Transportation Ltd (DCEC 506/2002, 1 April 2003, DC, unreported, [2003] HKCU 346). In Ngan Kwong Shing v Cheong Hing Construction Co Ltd & Anor (DCEC 686/1999, 28 January 2002, DC, unreported), the court, after going through a balancing exercise, refused to allow the introduction of expert evidence from an occupational therapist.

If it is not just to restrict an injured employee to an expert who has prepared a report which is adverse to his claim, he may be allowed to commission another expert in the same discipline: see Sunar Nib Bahadur v Tin Wo Engineering Co Ltd (DCEC 105/2001, 24 November 2003, DC, unreported, [2003] HKCU 1339). However, the right to adduce expert evidence is not an unfettered right. The court will filter out excessive expert evidence and to limit such evidence to what is necessary for the efficient and just determination of the case. It has also been emphasized by the court there is a need to maintain a sense of proportion as to the nature and subject matter of the claim as well as to costs. In Yeung Man v Wing Shing Caisson & Foundation Ltd & Anor (DCEC 851/2004, 1 September 2005, DC, unreported, [2005] HKCU 1257), the court refused the admission of a fresh expert report obtained from a newly appointed expert in the same discipline as the former expert since there was no justifiable basis to do so. A party may also be refused leave to adduce an additional expert report unilaterally if the Court has already made an order for a joint medical examination to be carried by both parties’ experts: see Tsui Shun Li v Ever Regal International Ltd (DCEC 298/2009, 2 September 2009, DC, unreported).

In opposing any application by the other party on collection of expert evidence, practitioners should make information in relation to expert evidence as specified in Appendix D of Practice Direction 18.2 ready and available so that they will be in a position to assist the Court if a ruling is delivered against them and leave is granted for obtaining medical expert evidence. The Court may refuse to grant indulgence in the absence of those information, and directions on expert evidence may be given straightaway without waiting for the relevant party to obtain approval from the Director of Legal Aid and/or to nominate any particular medical expert. There will also be adverse costs implications even if the Court is prepared to accommodate, which will lead to delay and added costs: see Lau Wai Ping v Hsu Tsui Fong & Ors t/a Yiu Fung Transportation Co (above).

The parties should comply with the directions made by the court on the filing and service of expert reports in a timely manner, failing which there would be adverse costs consequences: see Sadiq Muhammad v City Gas Piping Engineering Co & Anor (DCEC 173/2006, 26 September 2006, DC, unreported, [2006] HKCU 1640).

On the question of discovery, in Chung Fung Chu v Secretary for Justice (CACV 123/2007, 30 October 2007, CA, unreported) the Court of Appeal held that a medical report was subject to legal professional privilege notwithstanding that it was prepared by an expert commissioned by the opposite party who carried out an examination on the applicant. In that case, the report only came into existence subsequent to the commencement of formal proceedings; and was prepared by an employer’s expert for the purpose of advising or informing him in regard to litigation. As the employer had not waived legal professional privilege in any way, the fact that the expert had examined the employee before preparing the report did not make any difference: see Lee v South West Thames Regional Health Authority [1985] 1 WLR 845 and Chung Fung Chu v Secretary for Justice (above).

Surveillance evidence

Sometimes surveillance evidence will be obtained in employees’ compensation cases to verify the injuries and condition of injured employees. In law, there is no duty or obligation on the part of the respondent employer to obtain such evidence through surveillance against the employee. No inference can be drawn from the absence of such evidence alone that the presentation of symptoms by an injured employee is genuine: see Yip Koon Man v Yuen Long Merchants Association Secondary School (DCEC 602/2008, 30 June 2009, DC, unreported).

Prior leave should be obtained before commissioning supplemental expert medical report to comment on any surveillance footage: see Khan Shiraz v Yee Lee Sea-Land Forwarding Co Ltd (HCPI 323/2004, 10 August 2006, CFI, unreported); Yu Tan Lee (余丹莉) v Cheung Kwok Choi (張國才) (HCPI 595/2007, 7 August 2008, CFI, unreported); and Chan Kwok Biu v Ming Chun Construction Co Ltd (DCEC 920/2008, 26 May 2009, DC, unreported). Upon such application for leave, the Court in exercising its discretion will consider whether such expert medical evidence is relevant, necessary and of probative value. As summarized by District Judge Marlene Ng in Chan Kwok Biu v Ming Chun Construction Co Ltd (above), this in fact depends on the circumstances of each case and in particular:

1 the nature/extent of the claimant’s injuries;

2 the nature of his pre-accident work; and

3 the expert medical opinion already given by the experts. If video surveillance evidence arguably undermines the fundamental medical premise of the existing medical opinion (eg. demonstration of performance of tasks by a claimant which allegedly he cannot undertake leading to a risk of medical misdiagnosis), it is more likely that the Court will grant leave for leave the medical experts to comment on the footage. On the other hand, the Court will likely refuse additional comments by expert on surveillance evidence if it just seeks to attack the claimant’s creditability as opposed to the medical premise for the expert medical opinion (eg. existing expert evidence already denotes inappropriate signs and the claimant’s assertions of subjective pain and suffering). For an illustration of how the Court did the balancing exercise in an employees’ compensation case, see Chan Kwok Biu v Ming Chun Construction Co Ltd (above).

The employee has to show that the incapacity is caused by the accident or resultant injury. In Grandeur Aluminiumware Mfg Co Ltd v Shum Cheung [1967] HKDCLR 38, [1967] HKCU 55, the employee lost the sight of his left eye in an accident. Prior to the accident there had been a defect in vision in the right eye which had been compensated by the left eye, but as a result of the accident the defective right eye would require constant artificial aid in order to achieve any form of vision that would enable the employee to move around or earn a living. The court held that the test was whether the evidence established a causal link of connection between the accident and the disability of the right eye, and that although a heavier strain would fall on the employee’s right eye as a result of the loss of sight in the left eye, there was nothing to show that the defect in the right eye had been accelerated or aggravated by the accident. Hence the disability of the right eye was to be disregarded for the purpose of assessing compensation.

In some cases the employer may argue that the incapacity did not result from the injury but instead from defective treatment of the employee by the attending doctors. The general principle here is that incapacity resulting from a bona fide and reasonable exercise of medical skill when treating the injury will be incapacity in respect of which compensation is payable. Negligent or inefficient treatment by the doctor may amount to a new cause which breaks the chain of causation between the injury and the incapacity if the treatment ‘substantially’ causes the incapacity: see Humber Towing Co Ltd v Barclay (1911) 5 BWCC 142. The question of whether such treatment amounted to a new cause is a question of fact: see Harrison v Ford (1915) 8 BWCC 429; Rothwell v Caverswall Stone Co Ltd [1944] 2 All ER 350. This case and other relevant decisions were discussed and considered in Lo Ngau v Dodwell Shipping Ltd [1977-79] HKC 245, which also serves as an example of the application of the relevant principles to the facts of that case.

The onus of proving that his incapacity results from the injury rests with the employee, and the degree of proof is proof on a balance of probabilities: Preng Eing Chiau v Hatch & Turk Health Centres Ltd (WCC 134/77, unreported). The onus of proving that the incapacity results from a new cause rests with the employer: see Lai Tak v Leung Yau Kan [1961] HKDCLR 185, [1961] HKCU 86; Lam Yau v Wing Hing Saw Mill [1965] HKDCLR 127.

In Tang Shau Tsan v Wealthy Construction Co Ltd (CACV 58/2000, 5 April 2000, CA, unreported, [2000] HKCU 216), Roger VP says:

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

In short, it is for the court to assess the percentage of loss of earning capacity. Medical opinion is useful, but it is for the court to come to its own conclusion. Although Tang Shau Tsan was an appeal against the assessment of damages in a personal injury claim, the guidance of Rogers VP is also relevant in employees’ compensation claim: see Kwan Yee Chor v Hung Fau Metal Construction Co Ltd [2002] HKLRD 768, [2002] HKCU 805, Woo Wai Kuen v Li Siu Keung Alex t/a Alex’s Kitchen (DCEC 489/2000, 7 July 2001, DC, unreported), Law Siu See v De Rodeo Human Resources Ltd (DCEC 989/2001, 22 April 2003, DC, unreported, [2003] HKCU 494), Chu Shu Wor v Cheng Kai Chai t/a Carry Engineering Co (DCEC 161/2002, 14 March 2003, DC, unreported), Chau Muk Chi v Chinagold Transportation Ltd (DCEC 506/2002, 1 April 2003, DC, unreported, [2003] HKCU 346), Fan Kwok Keung v Team Work Event Promotion Ltd (DCEC 973/2002, 25 November 2003, DC, unreported, [2003] HKCU 1293), Chan Kam Sau v Yee Hing Construction Transportation Co Ltd (DCEC 1361/2005, 19 January 2007, DC, unreported, [2007] HKCU 477) and Rai v Carson Engineering Ltd (DCEC 28/2006, 28 May 2007, DC, unreported).

The concept of earning capacity is not limited to the present, nor is it to be measured by some immediate and possibly quite fortuitous achievement. It is concerned with a continuing state, with the potential of an individual and very much with the future: see Lau Ho Wah v Yau Chi Biu [1987] HKLR 1061.

The yardstick for calculating compensation is ‘loss of earning capacity’, and ‘incapacity’ (or physical impairment) is merely a measure (albeit a highly important one) of the yardstick. Physical impairment connotes the result of the injuries while loss of earning capacity connotes the net result of incapacity for work within the contemplation of the legislature. It is therefore perfectly possible for the percentage of loss of earning capacity to exceed the percentage of physical impairment: see Tsang Lin v Tong Ling Shipping and Enterprises Co Ltd [1983] 1 HKC 449. See also Chung Chik (alias Chung Tak Cheung) v Hip Fung (DCEC 90/1972, 16 January 1973, DC, unreported).

If an employee who receives a fixed salary can return to his pre-accident employment without suffering any change in that salary, it does not necessarily mean that there is no loss of earning capacity: see Mallarievelyn Acosta v Chan Ka Po (DCEC 337/2002, 18 October 2004, DC, unreported, [2004] HKCU 1208).

In Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HKLR 556 at 559-60, [1981] HKCU 53, the Court of Appeal laid down the following formula for calculating loss of earning capacity under s 9(1)(b):

where ‘a’ is the earning capacity at the time of the accident in any employment of which the employee is now capable, ‘b’ is the earning capacity at the time of the accident, and ‘c’ is the compensation payable upon permanent total incapacity.

The formula was modified in Yip Fong Ming v Joint-Effort Engineering Co [1989] 1 HKC 505 (see also Lui Kwong Yan v Shui Hing Decoration Works [1993] 1 HKLR 168) to read:

Since the decision in Hong Kong Paper Mills Ltd v Chan Hin Wu above, subs (1)(b) has been amended by replacing the words ‘in conformity with’ with ‘having regard as far as possible’ in Sch 1. This indicates that the percentage payable for the nearest relevant injury in the Schedule should not have the same importance in the assessment calculations as before: see Lui Kwong Yan v Shui Hing Decoration Works above, Chao Yuan Chiao v Regal Hotels International Ltd & Anor (DCEC 593/2000, 8 August 2001, DC, unreported).

It has been common practice to use actual or notional earnings in applying the so-called Hong Kong Paper Mills formula. Whether the formula is applicable is often an issue in dispute between the parties in employees’ compensation claims. The formula refers to ‘loss of earning capacity’ and not ‘loss of earnings’, and this distinction was emphasised by the Privy Council in Lau Ho Wah v Yau Chi Biu [1987] HKLR 1061. Cf. the wording of subs (4). See also Wong Sing Fung v Fu Ming Stainless Engineering Co Ltd (CACV 76/1986, 5 November 1986, CA, unreported). In Mohammad-Riasat v Chung Yiu Man t/a Man On Tyre Repairing (DCEC 908/1999, 15 January 2004, DC, unreported), the court found that the Hong Kong Paper Mills formula ‘tended to be misleading’. Applying the formula, in the court’s view, would mean that one had to apply a hypothetical monthly wage of the injured employee. The court further considered that the economic downturn since 1997 had made it unrealistic to apply the formula.

In Leung Wai Pong v Tang Hon Kong t/a Kin Wah Decoration Company (DCEC 237/2007, 19 November 2008, DC, unreported), it was observed by the Court that, to a great extent, whether the Hong Kong Paper Mills formula would be applied would depend on the Court’s finding of the earnings of the injured employee at the time of accident and the earnings of the alternative employment which he was able to take up given his injuries. If the difference in percentage is substantially more than the percentage assessed by the Employees’ Compensation (Ordinary Assessment) Board or that prescribed under the First Schedule of this Ordinance, the Court would probably apply s 9(1A) and the formula in its assessment of the loss of earning capacity for making an award of employees’ compensation.

It was held that the formula was not applicable when an injured employee could have returned to his pre-accident work only with some reduction in his work efficiency: see Kashif Munir v Heng Fai Geog. & Const. Co Ltd & Anor (DCEC 401/2006, 29 April 2008, DC, unreported), in Or Yam Yeung v Hung Sai Sze t/a 明港工程 Ming Kong Engineering (transliteration) (DCEC 386/2006, 30 March 2007, DC, unreported, [2007] HKCU 566), Wong Kim Fung v Leung Wai Sun t/a Wai Kan Transportation Co (DCEC 122/2003, 17 November 2006, DC, unreported, [2006] HKCU 1909); Singh Bal Winder v Sino Phil Engineering Services Ltd & Anor (DCEC 374/2003, 20 July 2007, DC, unreported); Singh Harpal v Najib Transport (DCEC 798/2005, 13 March 2008, DC, unreported) and Chu Chan Cheung v Choi Hung Engineering Co Ltd & Ors (DCEC 401/2007, 16 July 2009, DC, unreported), the court refused to employ the use of the Hong Kong Paper Mills formula since it was not satisfied that the injured employee could not return to his pre-accident job. In Chan Kam Sau v Yee Hing Construction Transportation Co Ltd (DCEC 1361/2005, 19 January 2007, DC, unreported, [2007] HKCU 477), the court did not consider the Hong Kong Paper Mills formula to be appropriate to assess the compensation payable to an injured employee who was capable to return but had not returned to his pre-accident job. It was observed that in such a case the loss of earning capacity would be 0% and this might not fairly represent the employee’s situation.

However, in Lau Man Keung v Yiu Wing Construction Co Ltd [(CACV 2232/2001, 10 June 2002, CA, unreported, [2002] HKCU 690 [2002] 2 HKLRD H15,), the Court of Appeal adopted the Hong Kong Paper Mills formula as modified to assess the award of compensation payable under this subsection because of the diversity of the assessment of the applicant’s loss of earning capacity between the experts themselves and between them and the government medical assessment board. It was also mentioned in that case that the Hong Kong Paper Mills formula correctly represented the intention of the legislature.

Where there is no evidence about the monthly earnings at the time of the accident of a worker in an employment of which he is now capable, the court cannot take judicial notice of the amount and may not apply the Hong Kong Paper Mills formula: see Mak Tin Chun v Yeu Shing Construction Co Ltd [1991] 2 HKLR 460; and Wong Wing Cheung v Interlite (Asia) Ltd & Ors [2003] 3 HKLRD 473, [2003] HKCU 862.

Practitioners should bear in mind that, in order to apply the Hong Kong Paper Mills formula, it is necessary to adduce evidence of wages of the claimant’s potential alternative employment ‘assessed at the date of the accident’. The Court may refuse to make any inference of the level of earnings as at the time of accident from statistics of wages in respect of a different point in time: see Lui Shun Yee v Golden Sea Harbour Restaurant Ltd (in compulsory liquidation) (DCEC 1473/2004, 25 February 2009, DC, unreported).

This subsection is intended to provide an alternative and fairer means of assessment where, because of the special circumstances of an employee, the loss of earning capacity is far greater than the loss of physical capacity. In such a case the percentage of compensation will be related directly to the actual loss of earning capacity. This subsection is invoked in cases where the injured employee had received little education and does not possess other special skills apart from working in manual work or other work which requires manual dexterity or physical strength. Where there is clear evidence that the employee has the capacity to return to a job which, in terms of earning capacity, is commensurate with the employee’s pre-accident employment, this subsection will not apply: see Wong Sau Lai v Cathay Pacific Airways Ltd (DCEC 1004/2001, 17 January 2003, DC, unreported, [2003] HKCU 37) and Kwan Yee Chor v Hung Fau Metal Construction Co Ltd [2002] HKLRD 768, [2002] HKCU 805; cf. Lau Man Keung v Yiu Wing Construction Co Ltd (CACV 2232/2001,10 June 2002, CA, unreported, [2002] HKCU 690, [2002] 2 HKLRD H15) in which the Court of Appeal did not consider that there were any special circumstances when the only impact of the injuries on an employee without any special skill was that he could not return to his pre-accident work and would have to take up lighter work and Ko Wai Ming v East Asia Textiles Ltd (DCEC 813/2002, 10 October 2003, DC, unreported, [2003] HKCU 1136) where no special circumstances were observed since the job of the injured employee did not require strenuous labour.

This subsection makes it clear that assessments of loss of earning capacity must initially be made by reference to Sch 1. It is only if the application of such would lead to ‘unjust results’ that a court would then use its discretion as to the percentages given in Sch 1: see Yu Kan Tak v Kwan Yiu Cheong (ECC 439/90, unreported) and Cheung Wan Sun v Lai Wai Man (t/a Wai Man Decoration and Design Engineering Co) & Anor [1996] 1 HKC 657. The discretion relates to the ‘special circumstances’ of the employee. The circumstances listed in subs (1A)(b) are not meant to be exhaustive: see Cheung Wan Sun v Lai Wai Man (t/a Wai Man Decoration and Design Engineering Co) & Anor above. The ‘special circumstances’ test applies to both ‘schedule injuries’ under subs (1)(a) or ‘non-schedule injuries’ under subs (1)(b): see Hang Huu Duc v Hanbo Engineering Ltd & Anor (DCEC 201/2003, 4 March 2005, DC, unreported, [2005] HKCU 304).

This subsection opens the door to consideration of factors going beyond the arbitrary figure in Sch 1 and the actual and notional earnings at the date of the accident. The court can therefore have regard to the future as well as the present when assessing the degree of incapacity: see Fu Kwong Woon v Chau Woon [1992] 1 HKC 562. Age would also be a factor to be considered: see Cheung Wan Sun v Lai Wai Man (t/a Wai Man Decoration and Design Engineering Co) & Anor above.

If special circumstances of an employee fall within this subsection, the Court will generally apply the Hong Kong Papers Mills formula in assessing the percentage of loss of earning capacity: see Lui Shun Yee v Golden Sea Harbour Restaurant Ltd (in compulsory liquidation) (DCEC 1473/2004, 25 February 2009, DC, unreported).

It appears that these circumstances include the employee’s education and background: Chan Kam v Standard Chartered Bank Hong Kong Trustees Ltd [1988] 1 HKC 345, [1991] 2 HKLR 455 at 458; language barrier involving foreign workers: Mr Amjad v Wong Yui Cheong t/a Cheung Kee Transport Co (DCEC 1345/2005, 14 May 2008, DC, unreported); and the degree of difficulty faced by the employee in finding placement in the labour market: Mak Tin Chun v Yeu Shing Construction Co Ltd [1991] 2 HKLR 460 at 466. For an example of the application of the circumstances: see Mak Tin Chun v Yeu Shing Construction Co Ltd above. It is possible that calculation under this subsection may in a particular case produce the same result as calculation under s 7: see, for example, Chan Kam v Standard Chartered Bank Hong Kong Trustees Ltd above.

For further discussions of the Chan Kam and Mak Tin Chun cases, see the commentaries by N Pirie (1989) 19 HKLJ 249 and GR McCormick (1990) 20 HKLJ 105. The latter article also contains useful comments on the Hong Kong Paper Mills formula.

For ‘employee’, see s 2 above; for ‘compensation’, ‘Court’, ‘earnings’, ‘Ordinary Assessment Board’, ‘partial incapacity’, ‘Special Assessment Board’ and ‘total incapacity’, see s 3 above and notes thereto.

10. Compensation in case of temporary incapacity

(1) Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned, or a lump sum calculated accordingly, having regard to the probable duration, and probable changes in the degree, of the incapacity. Such periodical payments shall be, or shall be at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident.

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

(3) Periodical payments under this section shall be payable on the same days as wages would have been payable to the employee if he had continued to be employed under the contract of service or apprenticeship under which he was employed at the time of the accident: Provided that-

(a) by agreement or by order of the Court, the periodical payments may be made at shorter intervals; and

(4) In the event of death or permanent incapacity following a period of temporary incapacity whether total or partial, no periodical or lump sum payments paid or payable under this section shall be deducted from any amount of compensation payable under section 6, 7, 8 or 9.

(5) An employee who has received periodical payments under this section for a period of 24 months from the date of the commencement of the temporary incapacity or for such further period being not more than 12 months as the Court may allow in any particular case shall no longer be entitled to periodical payments under this section but shall be deemed to have suffered permanent incapacity and the provisions of section 7 or 9, as the case may be, shall apply to the employee.

(6) In fixing the amount of the periodical payment, the Court shall have regard to any payment, allowance or benefit which the employee may receive from the employer during the incapacity.

(7) On the ceasing of the incapacity before the date on which any periodical payment falls due, there shall be payable in respect of that period a sum proportionate to the duration of the incapacity in that period.

(8) An employee in receipt of periodical payments under this section who intends to leave Hong Kong for the purpose of residing outside Hong Kong may apply to the Court for an order for the redemption of such periodical payments and the payment to him, subject to subsection (9), of a lump sum amount to be determined by the Court.

(9) The amount of a lump sum payable to an employee under subsection (8) together with the periodical payments already made to the employee under subsection (1) shall not exceed the lump sum which would be payable in respect of the same degree of incapacity under the provisions of section 7 or 9, as the case may be, if the incapacity were permanent.

(10) Without prejudice to any other provision of this Ordinance, an employer who without reasonable excuse fails to pay to the employee or to the Court any compensation or any proportionate part thereof under this section within a period of 7 days after the date on which such compensation falls due (whether under subsection (3) or by agreement or by order of the Court), commits an offence and is liable to a fine at level 6.

(11) If the period of temporary incapacity does not exceed 3 days and the employer fails to pay to the employee or to the Court the compensation or any proportionate part thereof that he is liable to pay under this section within the period referred to in subsection (10), the compensation or proportionate part thereof may be recovered by the employee from the employer-

(a) as a civil debt in the Small Claims Tribunal established under the Small Claims Tribunal Ordinance (Cap 338); or

(b) where the amount claimed exceeds the jurisdiction of the Small Claims Tribunal, as a civil debt in the District Court.

(12) A claim for compensation or any proportionate part thereof may be brought in the District Court under subsection (11)(b) either independently of or in conjunction with any other claim for compensation which is, under this Ordinance, to be brought in the District Court.

The words within the first set of square brackets in subs (1) were amended pursuant to s 3 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997. The words within the second set of square brackets in subs (1) were added pursuant to s 7 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words within the first set of square brackets in subs (2) were substituted pursuant to s 13 of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the second set of square brackets in subs (2) were added pursuant to s 2 of the Employees’ Compensation (Amendment) Ordinance 1985 (31 of 1985), commencing 14 June 1985.

The words within square brackets in subs (5) were added pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

Subsections (8) and (9) were substituted pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1983.

Subsection (10) was added pursuant to s 7 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983. Subsequently this subsection was amended by substituting the words within the first three sets of square brackets pursuant to s 2 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1992 (64 of 1992), commencing 10 July 1992. The prescribed fine in this subsection was further amended pursuant to s 7 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

Subsections (11) and (12) were added pursuant to s 3 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997.

This section is not intended to and does not overlap with s 9. Employees’ Compensation Ordinance. Section 9 covers the case of permanent incapacity which is only partial and is guided by Sch 1. It is based on the degree of loss of earning capacity and is intended to compensate for a future loss. This section, on the other hand, covers the case of temporary incapacity whether total or partial. Compensation here is calculated by reference to the loss suffered during the period of incapacity and is irrespective of the degree of incapacity: see Tang Siu Kong v Bonanza Fur Factory Ltd [1991] HKDCLR 64. This section only relates to a temporary state of affairs of finite duration and not to the assessment of permanent incapacity: see Fu Kwong Woon v Chau Woon [1992] 1 HKC 562. Indeed, subs (5) provides that periodical payment under this section shall cease after a maximum period of 24 months in respect of which periodical payments are payable under this section.

The mischief sought to be cured by this section was to alleviate the problem which would be caused when an employee suffered a period of temporary incapacity followed by a period of permanent partial incapacity which would result in his not receiving adequate compensation for the period when he was temporarily incapacitated: per Rogers VP in Court of Appeal in Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd [2000] 4 HKC 653, [2001] 2 HKLRD 803, 807.

An adjudication under this section is not an interim order - it finally decides the right of an injured employee to payment (whether periodical or lump sum) in respect of a temporary incapacity. This is not affected by the possibility of a review under s 19. The order for payment under this section is final until it is reviewed under s 19, which review may or may not necessarily take place. Accordingly, hearings for relief under this section should be regarded as final hearings, not interlocutory ones, and the findings and decision of the court will have implications in terms of issue estoppel and res judicata: see Poon Chi Kwong v Poon Wing Kee (Metal) (Work) & Anor [2004] 2 HKC 684. Prior to the issue of a summons, the parties have to agree on the nature of the application as to whether it should be final (under this section for periodical payment) or interlocutory (under O 29 of the RDC for interim payment). If there is no agreement, the court will have to hear arguments on this issue first to determine if the hearing would be a final or interlocutory one: see Lam Ching Hon v Lam Yu Shui & Anor (DCEC 370/2005, 11 May 2006, DC, unreported, [2006] HKCU 1507) para 12.

It is open to an employer to challenge the employees’ entitlement to periodical payment if the issue of liability cannot be resolved without the assistance of live evidence and cross-examination at the trial: see Qasir Mehmood v Hung Wai Kwan trading under the name or style of Raymond Company (DCEC 234/2003, 3 September 2003, DC, unreported, [2003] HKCU 1118) and Chu Wai Ling v Hoyin Construction Co Ltd & Anor (DCEC 834/2004, 5 August 2005, DC, unreported, [2005] HKCU 144).

If the periodical and/or advanced payments made to an injured employee, usually under this section or in pursuance of s 10A, exceeds the court’s total award of compensation, on application the court can order repayment of all or part of interim payment under O 29 r 17 of the Rules of the District Court (Cap 336 sub leg) notwithstanding that there is no provision in this Ordinance to repay the amount in excess: see Tsang Kwong v Mayshing Construction Co Ltd (DCEC 1026/2003, 16 March 2005, DC, unreported, [2005] HKCU 350).

This subsection clearly contemplates that the Court would take into account an injured employee’s actual or potential earnings in making awards of compensation in respect of his incapacity period: see Yu Tat Kam (余金) v Chu Tung Shing (朱東成) & Anor (CACV 25/2008, 8 October 2009, DC, unreported).

The burden is on the employer, but not the injured employee, to prove that circumstances existed for a reduction in compensation. In other words, a reduction will only be applied to the calculation of compensation under this section if the employer can prove that (1) the employee was actually earning money during his sick leave; or (2) in spite of his incapacity the employee is still capable of earning income in a suitable employment: see Yu Tat Kam v Chu Tung Shing & Anor (above).

There are conflicting decisions as regards whether the presumption under this subsection is conclusive or rebuttable.

In Chu Yuet Siu v Chinese Restaurant Ltd [1977] HKDCLR 11, the court held that no matter how lengthy the sick leave period was, the court would be bound by this subsection to award compensation to the employee. It was also mentioned in that case that the court can take judicial notice that sick leave certificates bearing the briefest terms, such as ‘SL (13/9/75-22/5/76)’ are endorsements used by the doctors to certify the necessary period of sick leave. Other decisions which support that the presumption under this subsection is conclusive include Yu Cheung Yim v Lucky Friend Industrial Ltd (DCEC 160/1995, 10 April 1996, DC, unreported); Lai Yuen Hing v Lo Chi Hung t/a Kam Hung Construction Co & Anor (DCEC 14/2000, 16 December 2002, DC, unreported, [2002] HKCU 1459) and Lai King Wai v Kwai Chuen Container Service Co Ltd (DCEC 805/2002, 4 December 2003, DC, unreported).

Another batch of decisions suggest otherwise. District Judge Muttrie in L v Equal Opportunities Commission & Ors (DCEO 1 & 6/1999, 23 June 2003, DC, unreported, [2003] HKCU 723) considered that the presumption was rebuttable by medical evidence to the contrary. In Ali Shoukat v Hang Seng Bank Ltd (DCEC 69/2002, 20 January 2004, DC, unreported, [2004] HKCU 79), followed in Chung Shek Nin v Yam Kee Construction Co Ltd & Anor (DCEC 1102/2003, 4 April 2005, DC, unreported, [2005] HKCU 410), the court also found the presumption to be rebuttable by medical evidence. Moreover, it was held in Wong Hong Nin Edwin v Swire Properties Management Ltd (DCEC 378/2002, 26 June 2003, DC, unreported, [2003] HKCU 1133) that it was for the injured employee to establish that sick leave was granted on a sound basis, and the court would not be bound to accept medical certificates issued by medical practitioners and government doctors.

In Lau Man Keung v Yiu Wing Construction Co Ltd (CACV 2232/2001, 10 June 2002, CA, unreported, [2002] HKCU 690, [2002] 2 HKLRD H15), the Court of Appeal held that a video showing the injured employee climbing stairs and riding a bicycle was insufficient to rebut the evidence of medical certificates. The court in Chan Shun v Shun Fat Woodword Company and Others (DCEC 397/2001, 15 April 2003, DC, unreported, [2003] HKCU 621) also undertook a similar exercise to evaluate the evidence before holding a respondent employer to have failed to rebut the presumption. It would not have been necessary to make any ruling on this issue with detailed analysis of evidence if the presumption is not rebuttable. District Judge CB Chan has reviewed a number of past decisions in Ng Kwok Keung v Wing Sum Construction & Engineering Co Ltd & Anor (DCEC 1367/2003, 2 April 2004, DC, unreported, [2004] HKCU 383) and concluded that the presumption in this section is not rebuttable. However, in Chan Kam Sau v Yee Hing Construction Transportation Co Ltd (DCEC 1361/2005, 19 January 2007, DC, unreported, [2007] HKCU 477), Deputy Judge C P Pang undertook a similar exercise before delivery of a ruling that the deeming presumption is rebuttable. In Fernandex, Melecia T v Kwan Joseph Chi Hung (DCEC 729/2006, 22 January 2007, DC, unreported, [2007] HKCU 111), it was again held that the deeming provision is rebuttable. In that case, Deputy Judge A.B. bin Wahab considered ‘compensation (of incapacity) is aimed at exactly that, ie to compensate’. Accordingly, it would defeat the aim if this subsection precludes evidence showing that there is really nothing to compensate. Moreover, it would not have been the intention of the legislature to provide a windfall for injured employees. In LKK Trans Ltd v Wong Hoi Chung [2006] 1 HKLRD 980, [2006] HKCU 330 above, the Court of Final Appeal declined an invitation to make pronouncements on the effect of sick leave certificates in the context of this subsection.

In his recent judgment in Sin Fu Yu v Wong Po Kee Ltd [2007] 1 HKLRD 159, Deputy Judge Anthony Chow conducted a meticulous review of 18 cases decided by all levels of the courts before coming to decision that the presumption under this subsection is irrebuttable in the absence of evidence of fraud, either by the certifying doctor or the employee. With this in mind, District Judge Lok held that the Court was entitled to disregard the sick leave certificates if it was found that there was malingering on the part of the Claimant and that his complaint was not genuine: see Limbu Laxmi Prasad v Dragages (HK) Joint Venture (DCEC 1227/2006, 24 October 2007, DC, unreported).

It is hoped that an appellate court may soon clarify whether the presumption under this subsection is rebuttable or conclusive. For further discussion on sick leave certificates and the presumption to which they give rise under this section, see the commentaries by J Pinto, ‘Of Sick Leave Certificates and their Legal Import’, (Feb 2006) Hong Kong Lawyer 45.

The degree of incapacity, whether total or partial, has no relevance in the calculation of an award under this section: see Tang Siu Kong v Bonanza Fur Factory Ltd [1991] HKDCLR 64.

It is provided under this subsection that periodical payments are not deductible from compensation awarded under ss 6, 7, 8 or 9, nor can a court order repayment of any periodical payments under s 10 pursuant to O 29 r 17 of the RDC. Accordingly, an employer may have difficulties to ask an employee to give credit to the sum of periodical payment made in excess of his entitlement under s 10 of the ECO when it comes to the final assessment of his award of employees’ compensation. Pending collection of expert medical evidence, it will be wise to exercise caution to deal with this issue before making excessive periodical payment to injured employees.

In Fong Sau Lan v Bureau Veritas Consumer Products Services (HK) Ltd (DCEC 957/2006, 1 August 2007, DC, unreported), the employer applied to amend the Answer to include a set off of the interim payment made to the employee and a repayment of all or part of this interim payment together with interest in the event that the compensation awarded exceeds the amount of interim payment paid. The alleged ‘interim payment’ was in fact ‘periodical payments’ paid pursuant to s 10. The application was objected on the following grounds:

1 That the alleged ‘interim payment’ was in fact ‘periodical payments’ paid pursuant to s 10, which is not deductable from any amount of compensation payable under ss 6, 7, 8 or 9. Therefore, the Court has no power to order for any set off or repayment of the alleged ‘interim payment’; and/or

2 O 29 r 27 of the RDC, which allows a Court to make adjustment on a final judgment or order, including the power to order for the repayment by the Plaintiff of all or part of the ‘interim payment’ paid, is not applicable to periodical payments paid pursuant to s 10.

In allowing the application, it was held that the Court should have power to order for set-off or repayment, depending on the final determination of award, if any sum paid was beyond the scope of s 10 (ie payment in excess of the Applicant’s entitlement under s 10) notwithstanding that such periodical payments were not deductible from compensation in pursuance of the provisions of this subsection; nor the Court’s inability to order for repayment of any periodical payments with reference to O 29 r 17 of the RDC. The Court appears to have relied on its inherent jurisdiction in arriving at its decision when pronouncing that it has power to order for a set-off or repayment.

This subsection confers on the court a discretion to extend periodical payment for a maximum of 12 months. In exercising the discretion, the paramount consideration is fairness to the employee. It is not the case that, once it is known that the employee’s loss of earning capacity is permanent, the periodical payment should not be extended: see Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd [2000] 4 HKC 653, [2001] 2 HKLRD 803; Lau King Sun v CHEC-CWF Joint (DCEC 238/2002, 16 July 2002, DC, unreported, [2002] 2 HKLRD G17).

During the course of employees’ compensation proceedings, if the medical evidence raises serious medical issues on the injury suffered by an employee, and his employer will have little or no prospect of recovery of periodical payments given the modesty of the employee’s financial strength, the court may refuse to make an order for periodical payment beyond 24 months under this subsection. The only option for the employee in such circumstances is to press on for an early trial: see Kong Yuk Man v Centro Digital Pictures Ltd (DCEC 774/2001, 15 April 2002, DC, unreported) and Chung Ping Huen v Leighton Contractors (Asia) Ltd (DCEC 169/2003, 6 August 2003, DC, unreported, [2003] HKCU 969); cf. Lau King Sun v CHEC-CWF Joint Venture above.

It has been held that s 14(1) below does not apply to an application by an employee under this subsection to ‘postpone the descent of the statutory guillotine’ for longer than 24 months otherwise prescribed: see Chan Siu Ling v Tonyear Investment Ltd (t/a Kwan Shing Restaurant) [1999] 2 HKC 348.

[10.09] Subs (6): Payment, allowance or benefit which the employee may receive from the employer during the incapacity

To be relevant for this subsection, any payment, allowance or benefit received by the employee must be received in respect of his incapacity. For example, an award by the Labour Tribunal received by the employee for wrongful dismissal is not to be taken into account or be deducted for the award payable under this section as it is not related to the employee’s incapacity: see Yip Kwai v Chung Leung [1978] HKLR 498, [1978] HKCU 70.

It is not every payment, allowance, or benefit which the employee may receive from the employer during the period of his incapacity that the judge must have regard to. It is only payments which are received in respect of the incapacity and in respect of that period which are covered by the compensation: see McDermott v Owners of SS Tintoretto [1911] AC 35(HL).

It would be open to an employer to rely on medical evidence to provide a reasonable excuse for non-payment of periodical payment: see Li Kam Piu v Jardine Air Terminal Services Ltd (DCEC 11/2003, 9 April 2003, DC, unreported, [2003] HKCU 370).

As to level of fines, s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

This is defined ins 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the District Court of the Hong Kong Special Administrative Region.

For ‘employee’, see s 2 above; for ‘compensation’, ‘contract of apprenticeship’, ‘Court’, ‘earnings’, ‘employer’, ‘medical practitioner’, ‘Ordinary Assessment Board’, ‘partial incapacity’, ‘registered dentist’, ‘Special Assessment Board’ and ‘total incapacity’, sees 3 above and notes thereto.

10A. Payment of medical expenses

(1) Subject to this Ordinance, if, in any employment, personal injury is caused to an employee by accident occurring on or after the date on which this section comes into operation and arising out of and in the course of his employment his employer shall be liable to pay the medical expenses for the medical treatment in respect of such injury.

(1A) Medical expenses which an employer is liable to pay under subsection (1) shall, unless otherwise provided by agreement in writing entered into by the employer with the employee, not include those in respect of medical treatment given outside Hong Kong in relation to an accident occurring in Hong Kong.

(2) Medical expenses which an employer is liable to pay under subsection (1) shall be payable in addition to any other compensation which the employer is liable to pay under this Ordinance.

(3) Medical expenses which the employer is liable to pay under subsection (1) shall be payable in accordance with the Third Schedule in respect of the period during which the employee receives medical treatment until the attending registered medical practitioner, registered Chinese medicine practitioner or registered dentist certifies that in his opinion no further treatment is required.

(4) An employer shall not be liable to pay medical expenses under subsection (1)-

(a) if the employer has provided adequate free medical treatment to the employee; or

(b) if, by a written undertaking given in accordance with subsection (5), the employer has agreed to provide adequate free medical treatment and the employee fails, without reasonable excuse, to submit himself for such medical treatment.

(5) Where an employer proposes to provide free medical treatment to an employee for personal injury caused to the employee by accident arising out of and in the course of his employment, he-

(b) shall specify in such undertaking the description of the medical treatment; and

(5A) Subsection (4) does not relieve an employer of the liability to pay medical expenses in respect of medical treatment of any description received by an employee unless the free medical treatment provided or agreed to be provided by the employer covers medical treatment of the same description.

(5B) In subsections (5) and (5A), a reference to a description of medical treatment is a reference to any of the following-

(a) medical treatment given by, or under the supervision of, a registered medical practitioner;

(b) medical treatment given by, or under the supervision of, a registered Chinese medicine practitioner;

(d) physiotherapy given by, or under the supervision of, a registered physiotherapist or registered medical practitioner;

(e) occupational therapy given by, or under the supervision of, a registered occupational therapist or registered medical practitioner;

(f) medical treatment given by, or under the supervision of, a registered chiropractor.

(6) Where an employee has paid for any medical treatment received by him he shall be entitled to recover the medical expenses which his employer is liable to pay under subsection (1) from his employer by serving on the employer a request in writing for the payment of the medical expenses together with a receipt for the payment for the medical treatment.

(7) If an employer does not pay an employee the medical expenses he is liable to pay under subsection (1) within 21 days after the date of receipt of a request for payment under subsection (6) or, where an application is made to the Commissioner under section 10B for the determination of a dispute, within 21 days after the date of determination of the dispute, the medical expenses may be recovered by the employee from the employer-

(a) as a civil debt in the Small Claims Tribunal established under the Small Claims Tribunal Ordinance (Cap 338); or

(b) where the amount claimed exceeds the jurisdiction of the Small Claims Tribunal, as a civil debt in the District Court.

(8) A claim for medical expenses in the District Court may be brought either independently of or in conjunction with any other claim for compensation which is, under this Ordinance, to be brought in the District Court.

The words within square brackets in subs (1) were substituted pursuant to s 8 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

Subsection (1A) was added pursuant to s 6 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

Subsections (2) and (3) were substituted pursuant to s 8 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words within the square brackets in subs (3) were substituted pursuant to s 14(1) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008. The words within the square brackets in subs (4)(b) were substituted pursuant to s 14(2) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the square brackets in subs (5) were substituted pursuant to s 14(3) of of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

Subsections (5A) and (5B) were added pursuant to s 14(4) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

Subsection (9) was repealed pursuant to s 8 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

Note Sch 3 below, which imposes a limit on the amount of medical expenses which the employee can claim.

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Hong Kong Special Administrative Region.

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the District Court of the Hong Kong Special Administrative Region.

For ‘employee’, see s 2 above; for ‘compensation’, ‘employer’, ‘medical expenses’, ‘medical practitioner’, ‘medical treatment’ and ‘registered dentist’, see s 3 above and notes thereto.

10AA. Medical expenses for accidents occurring outside Hong Kong

(1) This section applies to the liability imposed on an employer under section 10A, for the payment of medical expenses for medical treatment, given outside Hong Kong, in respect of personal injury caused to an employee by accident occurring outside Hong Kong and arising out of and in the course of that employee’s employment.

(2) An employer shall not be liable to pay medical expenses under section 10A(1)-

(a) in respect of medical treatment given outside Hong Kong to an employee in relation to an accident occurring-

(ii) before the commencement of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995);

(b) in respect of medical treatment given outside Hong Kong to an employee, unless and until a certificate has been issued by the Commissioner under section 10B(1)(b) stating the amount of such medical expenses;

(d) if, by a written undertaking, the employer has agreed to provide adequate free medical treatment outside Hong Kong to the employee and the employee fails, without reasonable excuse, to submit himself for such medical treatment.

This section was added pursuant to s 7 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

Note Sch 3 below, which imposes a limit on the amount of medical expenses which the employee can claim.

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Hong Kong Special Administrative Region.

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘employer’, ‘medical expenses’ and ‘medical treatment’, see s 3 above and notes thereto.

10AB. Cost of Medicines

(1) This section applies where an employer is liable under section 10A to pay the medical expenses for the medical treatment given in Hong Kong in respect of an employee’s personal injury.

(2) Subject to the other provisions of this section, the medical expenses that an employer is liable to pay in respect of an employee’s personal injury—

(a) include the cost of medicines to the extent that the medicines are prescribed medicines for the direct treatment of the injury; but

(b) do not include the cost of any tonic or substance that is prescribed for the purpose of the maintenance of general health only.

(3) For the purposes of this section, a reference to prescribed medicines is a reference to—

(a) medicines prescribed by a registered medical practitioner or registered dentist; or

(b) Chinese herbal medicines or proprietary Chinese medicines prescribed by a registered Chinese medicine practitioner.

(4) An employer is not liable to pay any cost of medicines relating to any pharmaceutical product or substance that is required to be registered under the Pharmacy and Poisons Ordinance (Cap 138) unless it is so registered.

*(5) An employer is not liable to pay any cost of medicines relating to any proprietary Chinese medicine unless the proprietary Chinese medicine—

(a) is registered under section 121 of the Chinese Medicine Ordinance (Cap 549);

(d) is exempted from registration by virtue of section 37 of the Chinese Medicines Regulation (Cap 549 sub. leg. F); or

(e) is a substance or product that is registered under the Pharmacy and Poisons Ordinance (Cap 138).

(6) An employer is not liable to pay any cost of medicines relating to any Chinese herbal medicine unless the Chinese herbal medicine—

(i) is the holder of a retailer licence issued under section 114 of the Chinese Medicine Ordinance (Cap 549); or

(ii) is deemed, under section 118(1) of that Ordinance, to have been granted such a licence; or

(b) is sold by a registered Chinese medicine practitioner for the purpose of administering, as described in section 158(2) of that Ordinance, to the employee concerned who is a patient under that Chinese medicine practitioner’s direct care.

(7) An employer is not liable to pay any cost of medicines relating to medicines dispensed pursuant to the same prescription on a second or subsequent occasion unless—

(a) the prescription contains a direction that the medicines are to be dispensed for a stated number of times; and

(8) Where the medical expenses for the medical treatment of an employee include the cost of medicines, the employer or the Commissioner may request the employee to produce to him the prescription for the medicines and the receipt for the payment of that cost. The employer is not liable to pay the cost of medicines if the employee fails, without reasonable excuse, to comply with the request.

(9) A prescription given by a registered medical practitioner or registered dentist and produced for the purposes of subsection (8) must show—

(10) A prescription given by a registered Chinese medicine practitioner and produced for the purposes of subsection (8) must show—

(d) if any proprietary Chinese medicine registered under section 121 of, or deemed to have been registered under section 128 of, the Chinese Medicine Ordinance (Cap 549) is prescribed, its product name and dosage;

*(e) if any proprietary Chinese medicine exempted from registration by virtue of section 158(6) of the Chinese Medicine Ordinance (Cap 549) is prescribed, the name and quantity of each Chinese herbal medicine that is contained in the proprietary Chinese medicine; and

(11) A receipt for the payment of the cost of medicines produced for the purposes of subsection (8) must show—

(a) the name and address of the person by whom the prescribed medicines were sold;

(12) For the purposes of this section— ‘Chinese herbal medicine’ (中藥材) means—

(a) a Chinese herbal medicine specified in Schedule 1 or 2 to the Chinese Medicine Ordinance (Cap 549); or

(b) any other material of herbal, animal or mineral origin customarily used by the Chinese for medicinal purpose;

‘proprietary Chinese medicine’ (中成藥) has the meaning assigned to it by section 2 of the Chinese Medicine Ordinance (Cap 549).

This section was added pursuant to s 15 of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

For ‘employee’, see s 2 above; for ‘employer’, ‘medical expenses’, ‘medical treatment’, ‘registered Chinese medicine practitioner’, ‘registered dentist’ and ‘registered medical practitioner’ see s 3 above and notes thereto.

10B. Determination by Commissioner of medical expenses payable

(1) The Commissioner shall, on application made to him by an employee or employer-

(a) determine whether or not there is a liability to pay medical expenses under section 10A in respect of medical treatment given outside Hong Kong to the employee; and

(b) where the Commissioner has determined that there is such liability, determine the amount of such medical expenses and issue a certificate to the employee and the employer stating the amount of such medical expenses.

(b) the amount of such medical expenses,
in respect of medical treatment given in Hong Kong to an employee, the Commissioner shall, on application made to him by the employee or the employer-

(A) determine whether or not there is a liability to pay such medical expenses; and

(B) where the Commissioner has determined that there is such liability, determine the amount of such medical expenses and issue a certificate to the employee and the employer stating the amount of such medical expenses;

(ii) in the case of paragraph (b), determine the amount of such medical expenses and issue a certificate to the employee and the employer stating the amount of such medical expenses.

(3) A certificate purporting to be issued under subsection (1)(b) or (2)(i)(B) or (ii) and to be signed by or for the Commissioner shall be admitted in evidence without further proof on its production in any court and-

(a) unless there is evidence to the contrary, it shall be presumed that the certificate is so issued and signed;

(b) shall be evidence of the amount of medical expenses payable by the employer.

(4) A determination by the Commissioner under this section as to any liability to pay medical expenses, and as to the amount of such medical expenses, may be reviewed by the Court on the application either of the employee or of the employer within 14 days of the issue by the Commissioner of a certificate under subsection (1)(b) or (2)(i)(B) or (ii), or within such further time as the Court, in the circumstances of any particular case, thinks fit; and on any such review the Court may confirm, vary or reverse the determination or may substitute its own determination for that of the Commissioner and may make such order in respect thereof, including any order as to costs, as it thinks fit.

This section was substituted pursuant to s 8 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

Note Sch 3 below, which imposes a limit on the amount of medical expenses which the employee can claim.

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Hong Kong Special Administrative Region.

This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘employer’, ‘medical expenses’ and ‘medical treatment’, see s 3 above and notes thereto.

11. Method of calculating earnings

(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings-

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

(1A) Where an employee suffers temporary incapacity after an accident and such incapacity extends beyond 12 months after the date of the accident the monthly earnings of an employee at the time of the accident shall, in respect of temporary incapacity beyond the 12-month period after the date of the accident, be computed for the purposes of section 6, 7, 9 or 10 as being the earnings calculated-

(a) where the employer employs, in similar employment, other persons of similar earning capacity to the employee, as the earnings that, if the accident had not occurred, the employee would have received at the end of a 12-month period after the date of the accident in accordance with the average rate of increase in respect of the earnings of other persons of similar earning capacity employed by the employer in similar employment;

(b) where the employer does not employ, in similar employment, other persons of similar earning capacity to the employee, as the monthly earnings of the employee computed under subsection (1) or (2) and adjusted in accordance with the rate of increase in the Consumer Price Index at the end of a 12-month period after the date of the accident.

(1B) Where an employee suffers temporary incapacity after an accident and such incapacity extends beyond 24 months or such further period as the Court may have allowed under section 10(5) the monthly earnings of an employee at the time of the accident shall, in respect of temporary incapacity beyond the 24-month period or beyond such further period after the date of the accident, be computed for the purposes of section 6, 7, 9 or 10 as being the earnings calculated-

(a) where the employer employs, in similar employment, other persons of similar earning capacity to the employee, as the earnings that, if the accident had not occurred, the employee would have received at the end of a 24-month period after the date of the accident in accordance with the average rate of increase in respect of the earnings of other persons of similar earning capacity employed by the employer in similar employment;

(1C) For the purposes of subsections (1A) and (1B), ‘Consumer Price Index’ (消費物價指數) means the consumer price index as compiled and published as CPI(A) in a Consumer Price Index Report by the Commissioner for Census and Statistics.

(2) Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.

(3) Where an employee was, at the date of the accident, under the age of 18 years his earnings shall, for the purposes of assessing compensation payable in the case of death or permanent incapacity, be deemed to be such amount as, if the accident had not occurred, he would probably have received upon attaining the age of 18 years, or at the end of a period of 5 years after the accident, whichever calculation is more favourable to the employee. (Added 55 of 1969 s 11; Amended 76 of 1982 s 9)

(4) Where an employee was, at the date of the accident, employed under a contract of apprenticeship his earnings shall, for the purposes of assessing compensation payable in the case of death or permanent incapacity, be deemed to be such amount as, if the accident had not occurred, he would probably have received upon the completion of his contract of apprenticeship.

(4A) Where an employee was, at the date of the accident, under the age of 18 years and employed under a contract of apprenticeship, his earnings shall for the purposes of assessing compensation payable in the case of death or permanent incapacity, be deemed to be the amount calculated under subsection (3) or (4), whichever calculation is more favourable to the employee.

(5) Where the earnings of an employee calculated under any of the provisions of this section amount to less than the amount specified in the second column of the Sixth Schedule shown opposite section 11(5) specified in the first column of that Schedule per month, the earnings of such employee shall, for the purposes of this Ordinance, be deemed to be the amount specified in the second column of the Sixth Schedule shown opposite section 11(5) specified in the first column of that Schedule per month.

(Added 55 of 1969 s 11; Amended 76 of 1982 s 9; L.N. 321 of 1985; L.N. 390 of 1987; L.N. 386 of 1989; L.N. 435 of 1991; L.N. 463 of 1993; L.N. 566 of 1995; 36 of 1996 s 8)

(6) For the purposes of subsections (1) and (2), employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.

(7) Where the employee had entered into concurrent contracts of service with 2 or more employers under which he worked at one time for one such employer and at another time for another such employer, his monthly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident: Provided that the earnings of the employee under the concurrent contract shall be taken into account only so far as the employee is incapacitated from performing the concurrent contract: Provided further that this subsection shall not apply where an employee is in the full time employment of that employer for whom he was working at the time of the accident, in which case the earnings of such employee shall be his earnings in such full time employment. For the purposes of this proviso, full time employment means employment for not less than 40 hours during a minimum period of 5 days in any 1 week.

(7A) An employee shall, at the written request of his employer, give his employer sufficient written information to enable the employer to comply with section 40 regarding any of the employee’s concurrent contracts of service referred to in subsection (7) that are then in force or subsequently entered into.

(7B) Subsection (7) does not apply where an employee fails to comply with subsection (7A).

(8) Within 14 days after the date of issue of a written request of the employee or of the Commissioner to the employer liable to pay compensation, that employer shall furnish in writing a list of the earnings which have been earned by that employee upon which the amount of the monthly earnings may be calculated for the purpose of this section.

(9) An employer who without reasonable excuse contravenes subsection (8) commits an offence and is liable to a fine at level 3.

Subsection (1) was substituted pursuant to s 9 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

Subsections (1A)-(1C) were added pursuant to s 9 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

The words within square brackets in subss (3) and (4) were added pursuant to s 9 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

Subsection (4A) was added pursuant to s 9 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words within the two sets of square brackets in subs (5) were substituted pursuant to s 8 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996. As to the various prescribed amounts, see also Ordinance 76 of 1982, LN 321/85, LN 390/87, LN 386/89, LN 435/91 and LN 463/93.

The figure within square brackets in the second proviso to subs (7) was substituted pursuant to s 9 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

Subsections (7A) and (7B) were added pursuant to s 2 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 8 July 1988.

The words within square brackets in subs (8) were substituted pursuant to s 9 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

Subsection (9) was added pursuant to s 9 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983. The words within the inner set of square brackets were substituted pursuant to s 8 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

This section is based on s 10 of the Workmen’s Compensation Act 1925. The Ordinance contains more detailed provisions including (for example) determination of earnings of an apprentice.

In Chan Kam Sau v Yee Hing Construction Transportation Co Ltd (DCEC 1361/2005, 19 January 2007, DC, unreported, [2007] HKCU 477), it was held that this section was designed to give a calculation of monthly earnings in favour of the employee who is entitled to elect the method of calculation stipulated under s 11(1)(a) or (b). In that case, the court did not consider it unfair for an employee to adopt his income for the month immediately preceding the accident for the assessment of compensation although it was unusually high because of an unexpected high demand of work in that month.

It is interesting to note that, in a common law claim for damages for personal injuries, the court may adopt the method of calculation of earnings as specified in this section, specifically that fringe benefits could be added to monetary income. However, the court also commented that a method of computing income provided by statute did not necessarily mean that common law damages should be computed in the same way: see Wai Ching Fong v Leung Yau Nam & Anor (HCPI 825/1998, 15 October 1999, CFI, unreported, [2000] 1 HKLRD A13, [1999] HKCU 1331).

This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC) per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.

In Sze Wing Yam v China State Construction Engineering Corporation & Ors (DCEC 571/2003, 19 November 2003, DC, unreported, [2004] HKCU 10), the court rely on this subsection to calculate an injured employee’s earnings for making an award for periodical payment against the background that he had a full history of employment but happened to be injured during the course of a brief course of casual employment for three days prior to the accident.

This is defined ins 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean calendar month. See also Lau Yiu Yee v Tung Lee Engineering Co (a firm) [2003] 1 HKC 43 and Mak Mui Chun for herself and the members of the family of Poon Shing Cheung, deceased v Luen Yip Engineering Co (DCEC 716/2004, 10 July 2006, DC, unreported, [2006] HKCU 1286).

[11.07] Any lesser period during which he has been employed by the same employer

These words mean exactly what they say, and it would appear that a period as short as one week would be sufficient to determine the ‘average monthly earnings’: see Chu Yuet Siu v Chinese Restaurant Ltd [1977] HKDCLR 11c/f Mak Mui Chun for herself and the members of the family of Poon Shing Cheung, deceased v Luen Yip Engineering Co (DCEC 716/2004, 10 July 2006, DC, unreported, [2006] HKCU 1286).

The mechanism for revising the amount of earnings under this subsection operates in a way which is favourable to the employee. If his income should have been increased but for the accident, then a higher figure will be adopted for the calculation of compensation. Conversely, if his income would have been reduced but for the accident, the employee will still be entitled to receive compensation including periodical payment under s 10(5) based on the original level of earnings: see Man Sun Chuen v Chan Siu Kin t/a Kin Fai Construction Co & Anor (DCEC 540/2001, 19 November 2001, DC, unreported).

There are 2 methods of working out the monthly earnings of an employee under this subsection:

1. taking the average amount which, during the 12 months preceding the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer; and

2. if there is no such person so employed, adopting the average monthly amount which, during the 12 months previous to the accident, was being earned by a person similar earning capacity in the same grade employed in the same class of employment and in the same district.

The test as to when one should adopt the formula set out in this subsection is one of practicability. Whether it is practicable to compute the rate of remuneration is a question of fact: see Chu Yuet Siu v Chinese Restaurant Ltd [1977] HKDCLR 11.

Both Court of Appeal’s decisions in Lai Cheung Kwan v Lo King Sum & Anor [2008] 3 HKLRD 643, Chinese Judgment, and Or Wing Ming v Ho Bing Chi t/a Tin Kei Decoration Engineering Co [2008] 4 HKLRD 337, Chinese Judgment, deal with assessment of monthly earnings for short-term employees. In Lai Cheung Kwan (above), a casual maintenance worker sustained injuries on his first day of work; whilst a carpenter injured himself after working for about half a month in Or Wing Ming (above).

In Leung Wai Pong v Tang Hon Kong t/a Kin Wah Decoration Company (DCEC 237/2007, 19 November 2008, DC, unreported), the legal principles in assessing the monthly earnings of employees who has only worked for a short term prior to their accident are summarized by District Judge Lok as follows:

1. the method of assessing the monthly earnings under ss 11(1)(a) and 11(1)(b) are only applicable if the injured worker worked for the same employer for the relevant periods under the said sub-sections. In other words, if the worker injured himself on the first day of work, his income earned by working for the other employers before the accident is not directly relevant in assessing the worker’s income at the time of accident (per Cheung JA in Lai Cheung Kwan, paras. 6-9 and Yuen JA in Or Wing Ming, para. 24);

2. the object of s 11(5) is to provide a minimum protection to an employee in the case that his monthly income is less than the amount prescribed in the statute, and the court should not therefore adopt this figure as the monthly income even if there is not much evidence about the earnings of other comparable workers for assessing the employee’s income under s 11(2) (per Yeung JA in Lai Cheung Kwan, paras 35-37, per Yuen JA in Or Wing Ming, para. 26);

3. if the injured worker only worked for a short period of time and there is no practical way to compute the rate of remuneration, the court has to adopt the methods prescribed in s 11(2) to ascertain his monthly earnings, and it is the duty of the court to make such factual finding based on whatever evidence before the court (per Yeung JA in Lai Cheung Kwan, para. 37); and

4. in order to assist the court in assessing the monthly earnings of short term employees under s 11(2), practitioners should ensure that there is sufficient evidence before the court for the purpose of such assessment exercise (per Yuen JA in Or Wing Ming, para. 31).

In Leung Wai Pong (above), a carpenter met with an accident which caused injuries to him on the first day of work. The parties agreed that only this subsection is applicable for the assessment of his monthly earnings at the time of accident. As there is no evidence before the Court about the earnings of similar carpenters employed by the respondent employer before the accident, the Court adopted the 2nd method of assessment of this subsection to work out the employee’s monthly income for quantifying his award of employees’ compensation, ie. the average monthly amount which, during the 12 months previous to the accident, was being earned by a person with similar earning capacity in the same grade employed in the same class of employment and in the same district.

In the case of an apprentice, the earnings to be applied in calculating compensation refer to the probable earnings upon completion of the apprentice’s training period, not to the apprentice’s actual earnings at the time of the accident: see Tang Siu Kong v Bonanza Fur Factory Ltd [1991] HKDCLR 64.

In Cheng Po Chuen (鄭寶春) 訴 Lee Yuet Wah (李月華) t/a 雙華運輸 (DCEC 590/2008, 5 June 2009, DC, unreported, Chinese Judgment), the Court did not consider an employee who worked as a casual worker for different employers in different periods to be qualified under this subsection to claim that he was under concurrent contracts of service at all material times.

An employee employed by more than one employer is required to provide sufficient details of all his concurrent contracts of services to enable the employer to properly insure his risk under s 40 of the Ordinance.

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include any crime and any contravention or other breach of, or failure to comply with, any provision of any law, for which a penalty is provided.

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘contract of apprenticeship’, ‘earnings’ and ‘employer’, see s 3 above and notes thereto.

12. Persons entitled to compensation

(1) Except where otherwise provided by or under this Ordinance, compensation shall be payable to or for the benefit of the employee, or, where death results from the injury, to or for the benefit of the members of his family as provided by this Ordinance.

(b) if an application under section 6B (1) has been made, prior to a Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case is issued; or

the legal personal representative of the member of the family shall have no right to payment of compensation.

The words within square brackets in subs (1) were substituted pursuant to s 10 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983. The words within the second set of square brackets in subs (1) were amended pursuant to s 7(a) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsection (2) was substituted pursuant to s 7(b) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsection (3) was repealed pursuant to s 7(b) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The wording of this section is to the same effect as 2 of the Workmen’s Compensation Act 1925 s 2.

For ‘employee’, see s 2 above; for ‘compensation’ ‘Certificate of Compensation Assessment for Fatal case’, ‘member of the family’ and ‘Review Certificate of Compensation Assessment for Fatal case’, see s 3 above and notes thereto.

13. Distribution of compensation

(1) Compensation payable where the death of an employee has resulted from an injury, other than those which have been determined under section 6B (1)(a), 6C (1)(a) or (11), 6D (6)(b) or 6E (1)(a) or (12), shall be paid to the Court, and the Court may-

(a) in the case of compensation paid under section 6(1), order any sum so paid in to be apportioned among the members of the family according to section 6A; and

(b) in the case of reimbursement paid under section 6(5), order any sum so paid in to be apportioned to the persons who have paid the expenses of the funeral of the employee and the expenses of medical attendance on the employee according to section 6E(5),

and the sum so apportioned shall be paid to them or be invested, applied or otherwise dealt with for their benefit in such manner as the Court thinks fit.

Where, on application being made in accordance with rules made under this Ordinance, it appears to the Court that, on account of the variation of the circumstances of the various members of the family, or for any other sufficient cause, an order made under this subsection ought to be varied, the Court may make such order for the variation of the former order as in the circumstances of the case the Court may think just:

Provided that no such order shall be made which requires the repayment by a dependant of any compensation already paid to him except where such payment has been obtained by fraud, impersonation or other improper means.

(2) Except where otherwise provided by or under this Ordinance, any other compensation payable under this Ordinance shall be paid to the Court, and any sum so paid shall-

(b) if the compensation is payable under the provisions of section 7, 8 or 9 or is a lump sum payable under the provisions of section 10, be invested, applied or otherwise dealt with by the Court for his benefit in such manner as the Court thinks fit:

(i) where periodical payments are payable under the provisions of section 8(2)(b)(i) or section 10, such payments may be paid by the employer direct to the employee; and

(ii) where compensation has been agreed and approved in accordance with the provisions of section 8, such compensation may be paid by the employer direct to the employee.

(3) An employer may make a payment direct to an employee or member of the family on account of a claim which is pending settlement or determination, and the Court or, if the compensation is not paid to the Court, the Commissioner may order that the whole or any part of such payment shall be deducted from the amount of compensation payable to the employee or member of the family under the provisions of this Ordinance:

(Replaced 55 of 1969 s 12.; Amended 76 of 1982 s 11; 59 of 1988 s 3; L.N. 435 of 1991; 63 of 1992 s 5)

(a) constitute a periodical payment or an interim payment for the purposes of this Ordinance; or

(b) relieve the employer of an obligation to make any periodical payment or an interim payment under this Ordinance.

(4) The receipt of the Registrar of the Court shall be a sufficient discharge in respect of any amount paid to the Court under the provisions of this Ordinance.

(5) No appeal shall lie from any order or direction of the Court or of the Commissioner made or given under this section.

Subsection (1) was amended pursuant to s 8(a) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The words within the first set of square brackets in subs (2) were substituted pursuant to s 11 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983. The words within the second set of square brackets were substituted pursuant to s 9 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

The words within the first set of square brackets in subs (3) were substituted pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 8 July 1988. The words’not exceeding $28,000’ were deleted pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.

The words within square bracket in paras (a) and (b) of subs (3) were added pursuant to s 8(b) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The proviso to subs (3) was added pursuant to s 11 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

In Wong Po Wah v Pacific Insurance Co Ltd [1988] 2 HKLR 417, the Court of Appeal suggested that an insurer may pay the money into court (as provided by subs (2)) or insist upon seeing the Registrar’s receipt (as provided by subs (4)) before releasing the insurance money to the employer so as to avoid the possibility of the insurer having to pay twice because the employer fails to pay the employee (see the notes to s 44 below).

Where no determination on compensation has been made by the Commissioner of Labour in fatal cases, the parties have to go to Court and compensation has to be paid into Court whereupon the Court may apportion the compensation amongst the family members of the deceased and give directions for the application and/or investment of the compensation monies in accordance with the individual’s circumstances: see Lee Wan Yeung for himself and for and on behalf of other members of the family of Lee Kam Ming, deceased v Metro World Engineering Ltd & Anor (DCEC 577/2008, 13 January 2009, DC, unreported).

Notwithstanding good intentions and eagerness to engineer an early settlement of the claim, an insurer (and by analogy the employer as well) cannot usurp the Court’s role in making apportionment of the compensation. A tender of payment made to the legal representatives of the family members of the deceased, which was wrongfully effected contrary to the provisions of this subsection, cannot be relied upon for arguing against an award of interest at the usual half judgment rate: see Lee Wan Yeung for himself and for and on behalf of other members of the family of Lee Kam Ming, deceased v Metro World Engineering Ltd & Anor (above).

The court’s discretion is defined in Lau Hon Cheong v A-G [1987] 3 HKC 1 at 9 per Clough J, to mean the exercise of a power of decision as one thinks fit, either absolutely or within limits.

This subsection makes it mandatory for compensation to be paid into Court except for periodical payments under s 8(2)(b) (i) or s 10 where the employer may have paid the employee directly, or where the Court approved such payments or compensation and periodical payments: see Lee Wan Yeung for himself and for and on behalf of other members of the family of Lee Kam Ming, deceased v Metro World Engineering Ltd & Anor (above).

This is defined in relation to the Limitation Ordinance (Cap 347) s 26(2), in Yeu Shing Construction Co Ltd v A-G [1988] HKC 710 at 714 per Godfrey J, to mean unconscionable behaviour.

This subsection makes it clear that an employer is authorised to make an advance payment to the employee pending the settlement or determination of a claim in respect of compensation payable under the Ordinance. There is no ceiling on such payment.

With regard to fatal cases, extreme care has to be taken before making such payments. There may be difficulties in ascertaining: (1) the right recipient(s) of such payment; and (2) the amount payable to each recipient in accordance with his/her status in the family. Incorrect or wrongful payments may lead to the unfortunate result that the employer or its insurers may have to pay twice. There have been litigations between two unrelated families both claiming to be dependants of an employee who was the victim of a fatal accident: see Parveen Tahira and on behalf of the dependants of Muhammad Shahzad, deceased v Paul Y.-Seli Joint Venture (DCEC 493/2000) and Atiq-Ur-Rehman on his own behalf and on behalf of the dependants of Saif-Ur-Rehman otherwise known as Mohammad Shehzad, deceased v Paul Y.-Seli Joint Venture (DCEC 30/2001).

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘Court’, ‘employer’ and ‘member of the family’, see s 3 above and notes thereto.

14. Requirements as to notice of accident and application for compensation

(1) Except where otherwise provided by this Ordinance, proceedings for the recovery under this Ordinance of compensation for an injury shall not be maintainable unless notice of the accident has been given to the employer by or on behalf of the employee, in the manner hereinafter provided, as soon as practicable after the happening thereof and before the employee has voluntarily left the employment in which he was injured, and unless the application for compensation with respect to such accident (being an application to the Court by an employee under section 18A(2)) has been made within 24 months from the occurrence of the accident causing the injury or, in the case of death, within 24 months from the date of death or prior to a determination made by the Commissioner under section 6B(1)(a), whichever is the earlier:

Provided that the want of, or any defect or irregularity in, a notice shall not be a bar to the maintenance of proceedings-

(a) if the application is made in respect of the death of an employee resulting from an accident which occurred on the premises of the employer, or at any place where the employee at the time of the accident was working under the control of the employer or of any person employed by him, and the employee died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred; or

(b) if the employer is proved to have had knowledge of the accident from any other source at or about the time of the accident, or if it is found in the proceedings for settling that claim that the employer is not prejudiced or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or irregularity, or that such want, defect or irregularity was occasioned by mistake, absence from Hong Kong, or other reasonable cause.

(2) A notice under this section may be given either in writing or orally to the employer (or, if there is more than one employer, to one of such employers), or to any foreman or other official under whose supervision the employee is employed, or to any person designated for the purpose by the employer, and shall specify the name and address of the person injured, and shall state in ordinary language the cause of the injury and the date on which and the place at which the accident occurred.

(3) Where section 24 applies, notice of an accident to an employee employed by a sub-contractor given in accordance with this section to the sub-contractor, or to any foreman or other official under whose supervision the employee is employed, or to any person designated for the purpose by the sub-contractor, shall be deemed to be notice to the principal contractor.

(4) The Court may receive and determine any application for compensation in any case notwithstanding that the notice required by subsection (1) has not been given, or that the application has not been made in due time as required by that subsection, if it is satisfied that there was reasonable excuse for the failure so to give notice or to make an application, as the case may be.

The words within the three sets of square brackets in subs (1) were added pursuant to s 12 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words ‘or prior to a determination made by the Commissioner under section 6B(1)(a), whichever is the earlier’ within square brackets were added pursuant to s 9 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsection (3) was substituted pursuant to s 12 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The wording of this section is similar to s 14 of the Workmen’s Compensation Act 1925. In the Act, the application for compensation must be made within 6 months from the occurrence of the accident or from the time of death (as the case may be). Furthermore, the employer is also required to post up in some conspicuous place, or near every mine, factory or workshop, a summary with regard to the giving of notice of accidents and the making of claims for compensation: see s 15 of the 1925 Act.

This section applies only to proceedings by an employee against an employer for the determination of a claim for compensation, and not to proceedings brought by an employee against his employer’s insurers: see Pang Wai Chung v The Tai Ping Insurance Co Ltd (HCA 10082/1996, 25 March 1998, unreported, [1998] HKCU 257, [1998] HKLRD Yearbook 353). Furthermore, this section does not apply to any ‘new application’ brought by way of appeal under s 18 of the Ordinance: see Chung Lung Shun v Adams Parking (International) Ltd [1996] 3 HKC 50, [1996] 1 HKLR 49 (CA). See also the notes to s 18 below.

This subsection does not apply as between an employee and the employer’s insurers and in this context there is no room for the application of the 24-month limitation period: see Wong Po Wah v Pacific Insurance Co Ltd [1988] 2 HKLR 417 at 420.

This subsection does not apply where an agreement under s 17 has been reached. Once the Commissioner for Labour has approved such agreement and it has been made an order of the court under s 17(13), the order for payment can be enforced in the same manner as other judgments and orders of the court by virtue of s 21(1): see Wong Po Wah v Pacific Insurance Co Ltd above at 420.

See [18A.06] below. In Lau Suet Fung v Future Engineering Co (CACV 110/2003, 6 February 2004, CA, unreported, [2004] HKCU 139), the Court of Appeal considered that this subsection ‘somewhat peculiarly’ refers to an application under s 18A (2) although s 18A (2) deals with an application for enforcement of compensation, not or compensation.

The burden of showing no prejudice rests initially with the employee. This burden, however, is not a heavy one and can be discharged if he gives evidence from which an inference can be drawn that the employer would not be prejudiced. The employee is not required to exhaust and displace all possibilities of prejudice if on his evidence it is not the natural inference that the employer was prejudiced; if so, it is for the employer to show how he is prejudiced: see Eydmann v Premier Accumulator Co Ltd (1916) 9 BWCC 384, adopted in Chan Wing Chuen v Sun Cheong Bleaching & Dyeing Factory Ltd [1989] HKDCLR 55 at 58-9 obiter.

This subsection empowers the court to receive and determine applications made out of time. The power should be exercised liberally: see Chan Siu Ling v Tonyear Investment Ltd (t/a Kwan Shing Restaurant) [1999] 2 HKC 348, but it is clear that the court will not assist a party who has slept on his rights: see Lau Suet Fung v Future Engineering Co (CACV 110/2003, 6 February 2004, CA, unreported, [2004] HKCU 139).

The language in this subsection is obviously discretionary (‘the Court may receive ···’), and it is not a question of a statutory bar being lifted and thereby being ‘gone altogether’. The position may be contrasted with corresponding provisions in other jurisdictions. For a useful discussion on this, see Lau Suet Fung v Future Engineering Co, above, per Yuen JA.

This term can be equated with the expression ‘reasonable cause’ in the Workmen’s Compensation Act 1925 s 14. Generally, an employee has a reasonable excuse for not making an application to the court for compensation within the prescribed time if his failure is due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part: see Wong Man Tak v Shaws & Sons Ltd [1957] HKDCLR 85 at 89, approved in Chan Wing Chuen v Sun Cheong Bleaching & Dyeing Factory Ltd [1989] HKDCLR 55; and Cheung Kwan Kwong v Kumagai Maeda Yokogawa Hitachi Joint Venture & Anor (DCEC 289/2000, unreported).

Examples of ‘reasonable excuses’ include: (1) state of physical or mental health of the employee which prevented him from giving notice or making a claim (Yeung Ying v Ching Hing Construction Co Ltd [1960] HKDCLR 129, [1960] HKCU 37; Tsui Lai Lan Lorna v Hospital Authority (DCEC 261/2001, 1 June 2001, DC, unreported); Si Nga Lai v Uniforce Trading Co (DCEC 838/2001, 4 February 2002, DC, unreported); Cheng So Chun Jolly v Wa Fung Public School (DCEC 975/2004, 30 June 2005, DC, unreported, [2005] HKCU 854)); Law Mei Ngo v Hospital Authority (DCEC 1637/2006, 26 June 2007, DC, unreported); Liu Le Wen v Chan Sing (CACV 185/2007, 23 January 2008, CA, unreported); and 宋敬新訴廣發運輸有限公司 (DCEC 600/2007, 6 December 2007, DC, unreported, Chinese Judgment); (2) a reasonable belief on the part of the employee that his injury was trivial (Lau Suet Fung v Future Engineering Co (CACV 110/2003, 6 February 2004, CA, unreported, [2004] HKCU 139)); (3) a mistaken diagnosis or underestimate of the injury (Choi Kwok Hing William v Ching Ya Fabric Ltd (DCEC 797/2001, 22 February 2002, DC, unreported, [2002] HKCU 447)); (4) a belief by the employee that a claim for compensation was unnecessary, when the belief had been induced by the employer and/or his solicitors (Kwok Yau Tai v Tung Wah Group of Hospitals (DCEC 44/2000, 11 April 2002, DC, unreported); Au Kin Wah v Always Win Fashion Ltd (DCEC 829/2001, 27 September 2002, DC, unreported)) or his insurers (Ng Sui Leong v The Incorporated Owners of Phase One of Sui Ying Industrial Building (DCEC 381/2001, 19 September 2001, DC, unreported)) or the Labour Department (Wong Kwai Lung v Man Yuen Construction Engineering Co Ltd (DCEC 501/2002, 29 November 2002, DC, unreported) (obiter)) in such circumstances as reasonably warranted that belief, or alternatively, where the employee was misled into believing that a claim for compensation would not be sustainable (Chan Man Lap v Secretary for Justice (DCEC 261/1998, 22 October 2001, DC, unreported)); (5) the inability of the employee to transact business because of his injury (Wong Man Tak v Shaws & Sons Ltd above); (6) confusion over the true identity of the employer: see(Kwan Hin Choi Keu v Tim Kee Transportation Ltd (DCEC 843/2000, 13 February 2001, DC, unreported)) and Wong Ki v Wong Tung Sing (DCEC 74/2008, 23 May 2008, DC, unreported) and (7) failure to locate the employer who was at fault in not reporting the accident to the Commissioner to Labour: see Liu Le Wen v Chan Sing (CACV 185/2007, 23 January 2008, CA, unreported). In Yeung Ying v Ching Hing Construction Co Ltd above, the judge commented (obiter) that illiteracy of the employee could in itself be a ‘reasonable excuse’. In Law Yim Ming v Cheung Hang Fook t/a Tung Lok Villa & Anor (DCEC 450/2001, 7 June 2002, DC, unreported), the court commented (obiter) that an applicant should have a reasonable excuse under this subsection if he was compelled to join a new party into the proceedings after the expiry of the limitation period and such joinder was necessitated by amendments made to the pleadings by one of the respondents.

On the other hand, the following have been held not to amount to ‘reasonable excuses’: (1) a belief by the employee that it would be to his interest to defer or not to make a claim (Wong Man Tak v Shaws & Sons Ltd [1957] HKDCLR 85); (2) ignorance of the employee of a right to claim compensation until after the expiry of the limitation period (Judd v Metropolitan Asylums Board (1912) 5 BWCC 420, followed in Chan Wing Chuen v Sun Cheong Bleaching & Dyeing Factory Ltd (above); Chui Chi Yue v AS Watson & Co Ltd (DCEC 724/2000, 5 February 2001, DC, unreported); Li Wai Keung v Ho Biu Kee Construction and Engineering Co & Anor (DCEC 930/2000, 2 March 2001, DC, unreported); Yan Hon Kan v 文洪模板工程 (Man Hung Formwork Engineering) & Anor (DCEC 133/2001, 29 June 2001, DC, unreported); Kwok Chi Yip v Wan Kei Geotechnical Engineering Co Ltd & Anor (DCEC 180/2001, 27 July 2001, DC, unreported) (obiter)); (3) a modest level of education resulting in a prolonged period of inactivity following an alert of claim by the employer’s insurer (Cheung Kwan Kwong v Kumagai Maeda Yokogawa Hitachi Joint Venture & anor above); (4) rejection of legal aid application and insufficient means to retain private lawyer (Chan Pak Lin v Society for the Prevention of Cruelty to Animals (DCEC 937/2001, 23 May 2002, DC, unreported)); (5) self-induced confusion or ‘some kind of pious hope that all would be well’ (Wong Kwai Lung v Man Yuen Construction Engineering Co Ltd (DCEC 501/2002, unreported)); and (6) a ‘difficult decision’ as to whether to join a new party into the proceedings which may involve seeking adjournments and lengthy delay (Mung Chi Keung v Chan Kam Wong & Anor (DCEC 299/2005, 14 September 2005, unreported, [2005] HKCU 1268)). Obviously, where the employee was well aware of the limitation period and consciously chose not to make a claim until after the expiry of that period, it will be difficult for him to advance a ‘reasonable excuse’ under this section: see Ng Kin Lam v Hong Kong Aircraft Engineering Co Ltd (DCEC 717/2000, 22 October 2001, DC, unreported, [2001] 3 HKLRD L11); Leung Ming Tim v Fan Tai Kan t/a Kan Kee Co (DCEC 318/2001, 3 August 2001, DC, unreported, [2001] 3 HKLRD I14); Chu Suk Han v Szeto Wai Yiu and Wong Yun Wa both t/a Wing Tat High Fashions Trading Co (DCEC 402/2002, 16 October 2002, DC, unreported, [2002] HKCU 1210, unreported); and Tsui Man Cheong v Lee Hung Ying Vicky t/a Fei Tsui Transportation Co (DCEC 1290/2008, 21 September 2009, DC, unreported). Incidents and events falling outside the 2-year limitation period will not be qualified as ‘reasonable excuses’; nor would a Court believe an account of delay which contains serious contradictions: see Tiempo Victoria Dagoc v Lai Yee Cheong Trudo (DCEC 1102/2008, 10 September 2009, DC, unreported).

Although the above might serve as useful examples, Rogers VP of the Court of Appeal has made it clear that none of the instances is ‘any more than an illustration of what the court on that occasion considered was a reasonable excuse’. It is also not considered that there will be any benefit in paraphrasing the expression or explaining it any further: see Liu Le Wen v Chan Sing (CACV 185/2007, 23 January 2008, CA, unreported). Obviously the discretion has to be exercised afresh for each individual case.

An excuse will only be reasonable if it operates for the whole of the prescribed period and not merely part thereof: see Wong Man Tak v Shaws & Sons Ltd (above) at 89; Chan Wing Chuen v Sun Cheong Bleaching & Dyeing Factory Ltd above; Kwok Shut Chung v Ranger Construction Co Ltd & Anor (DCEC 677/2002, 28 January 2003, DC, unreported).

For ‘employee’, see s 2 above; for ‘commissioner’, ‘compensation’, ‘court’, ‘employer’, ‘principal contractor’ and ‘sub-contractor’, see s 3 above and notes thereto.

15. Employer to report the injury to or death of an employee and method of notification

(1) Notice of any accident which results in the death of the employee within 3 days after the accident shall be given in the prescribed form to the Commissioner by the employer not later than 7 days after the accident irrespective of whether the accident gives rise to any liability to pay compensation.

(1A) Notice of any accident which results in the total or partial incapacity of the employee shall be given to the Commissioner by the employer not later than 14 days after the accident, irrespective of whether the accident gives rise to any liability to pay compensation, and shall be given-

(a) in the prescribed form, if the accident results in the total or partial incapacity of the employee for a period exceeding 3 days immediately following the accident; or

(b) in the form specified by the Commissioner, if the accident results in the total or partial incapacity of the employee for a period not exceeding 3 days immediately following the accident.

(1B) If the happening of such accident was not brought to the notice of the employer or did not otherwise come to his knowledge within such periods of 7 and 14 days respectively referred to in subsections (1) and (1A) then such notice shall be given not later than 7 days or, as may be appropriate, 14 days after the happening of the accident was first brought to the notice of the employer or otherwise came to his knowledge.

(a) an employer has given notice of an accident in the form specified by the Commissioner for the purposes of subsection (1A)(b); and

(b) the total or partial incapacity of the employee resulting from the accident extends beyond the period referred to in that subsection,

the employer shall give further notice of the accident to the Commissioner in the form prescribed for the purposes of subsection (1A)(a) not later than 14 days after the extension of the incapacity beyond the period referred to in subsection (1A)(b) was first brought to the notice of the employer or otherwise came to his knowledge.

(1C) The Commissioner may, by notice in writing to an employer, require the employer to give notice to the Commissioner of an accident causing injury to an employee, being an accident-

(b) to which subsections (1) and (1A) do not apply; and (Amended 64 of 1992 s 3)

(c) which does not result in the death of the employee, in the prescribed form within such period, not being less than 7 days, as is specified in the notice to the employer.

(2) When the death of an employee in any circumstances other than those specified in subsection (1) is brought to the notice of, or comes to the knowledge of, his employer, the employer shall, not later than 7 days after the death, give notice thereof in the prescribed form to the Commissioner, irrespective of whether the death gives rise to any liability to pay compensation:

Provided that if the death was not brought to the notice of the employer or did not otherwise come to his knowledge within such period of 7 days then such notice shall be given not later than 7 days after the death was first brought to the notice of the employer or otherwise first came to his knowledge.

(2A) The notice of accident referred to in subsections (1), (1A) and (2) shall contain such matters relating to the accident, the employer, the employee, any compensation agreed, paid or payable, and any matters incidental thereto as may be prescribed or, where the notice of accident is required to be given in the form specified by the Commissioner for the purposes of subsection (1A)(b), as may be specified by the Commissioner.

(3) On receipt of a notice under subsection (1), (1A) or (2) the Commissioner may make such inquiry as he thinks fit and if it appears to him that a claim for compensation may arise in respect of-

(i) make such inquiry as he thinks fit to ascertain whether there are any members of the family of the deceased employee; and

(ii) inform such members of the family, if any, of the reported cause and circumstances of the death of the employee and advise them of their right to compensation; or

(b) the incapacity of the employee, he may, if the employee so requests, make a claim for compensation on behalf of the employee.

(4) In any claim for compensation under section 6 the Court may, for the purposes of section 13(1), take into consideration a written report from the Commissioner of his findings on an inquiry under subsection (3)(a)(i).

(5) For the purposes of subsections (1) and (2), the death of an employee on the premises of his employer shall be deemed to be within the knowledge of such employer.

(a) without reasonable excuse fails to give notice as required by subsection (1), (1A), (1B) or (2) or as required by a notice of the Commissioner under subsection (1C); or

(b) in or in connection with any notice given by him under subsection (1), (1A), (1C) or (2), makes any false or misleading statement or furnishes any false or misleading information,

(Replaced 76 of 1982 s 13; Amended 63 of 1992 s 6; 64 of 1992 s 3; 36 of 1996 s 10)

(7) Nothing contained in this section shall prevent any person from making a claim for compensation under this Ordinance.

Subsection (1) was substituted pursuant to s 3 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1992 (64 of 1992), commencing 10 July 1992.

Subsections (1A) and (1B) were added pursuant to s 3 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1992 (64 of 1992), commencing 10 July 1992. Subsection (1A) was subsequently substituted pursuant to s 4 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997.

Subsection (1BA) was added pursuant to s 4 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997.

Subsection (1C) was added pursuant to s 13 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983 and subsequently amended pursuant to s 3 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1992 (64 of 1992), commencing 10 July 1992.

Subsection (2A) was added pursuant to s 3 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1992 (64 of 1992), commencing 10 July 1992. Subsection (2A) was subsequently substituted pursuant to s 4 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997.

The words within square brackets in subs (3) were substituted pursuant to s 3 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1992 (64 of 1992), commencing 10 July 1992. Paragraphs (a)(i) and (ii) of subs (3) were amended pursuant to s 10 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsection (6) was substituted pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983. Subsequently the words within the first three sets of inner square brackets were added or substituted pursuant to s 3 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1992 (64 of 1992), commencing 10 July 1992. The words within the fourth set of inner square brackets were substituted pursuant to s 10 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

Under this section, the employer is required to give notice of an accident to the Commissioner for Labour in accordance with the provisions of subss (1) and (2). The notice is commonly known as Form 2. The contents of Form 2 are not binding or conclusive; and the Court could disregard an admission in the form if this is inconsistent with the evidence and was made by mistake: see Lung Yui Man v Yee Hing Kee Plumbing Works Co Ltd & Anor (HCPI 923/1996, 2 February 2000, CFI, [2000] HKEC 130), Chan Sik Pan & Anor v Wylam’s Services Ltd & Ors [2001] 4 HKC 1, [2000-01] 9 HKPLR 893, [2002] 1 HKLRD 337, (2001) 4 HKCFAR 308; Wong Kai Hung v Lam Geotechnics Ltd (DCEC 110/2004, 13 April 2006, DC, unreported, [2006] HKCU 625); Lam Geotechnic Ltd v Wong Kai Hung (DCEC 322/2005, 13 April 2006, DC, unreported, [2006] HKCU 624); Yim Chun Fai v Chan Kwok Keung t/a K K Chan Decoration & Engineering Co (DCEC 417/2007, 1 February 2008, DC, unreported); and the court may not be persuaded to give any weight to hearsay evidence contained in Form 2 (Shek Kam Ching v Po Kee Construction Engineering Ltd & Ors [2002] 3 HKLRD 795, [2002] HKCU 1387 and Chan Yau Wing v Hyundai Engineering & Construction Co Ltd & Ors (DCEC 672/2003, 26 September 2005, DC, unreported, [2005] HKCU 1307, unreported)). However, care should be taken in completing Form 2 because the court is entitled to give weight to any admission contained in the notice on the issue of liability: see United Ford Development Ltd (t/a King Ford Mahjong Club) v Fung Yin Yee Shirley [1993] 2 HKLR 290; Yeung Man Tsan v Famous Dragon Engineering Ltd and Ors (DCEC 594 & 595/2003, 2 September 2005, DC, unreported, [2005] HKCU 1191); Wan Chee Leung a mentally incapacitated person by his next friend Wen Zefen v Lam Ki Mau and Chan Chiu Yee ta Tomson Construction Engineering Co (CACV 40/2007, 20 December 2007, CA, unreported) and Cheung Shuk Wah Jessica (張淑華) for herself and other members of the family of Man Chung Wah, deceased v Wong Kang Hung Darwin formerly t/a New Voice Pub (DCEC 842/2007, 9 July 2009, DC, unreported); and a Form 2 may become a ‘worst factor’ militating against an employer in an employees’ compensation claim: see Yim Chun Fai v Chan Kwok Keung t/a K. K. Chan Decoration & Engineering Co (above).

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to includes any crime and any contravention or other breach of, or failure to comply with, any provision of any law, for which a penalty is provided.

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘Court’, ‘employer’ and ‘member of the family’, see s 3 above and notes thereto.

16. Medical examination and treatment

(a) the employer may, within 7 days from the time at which the notice is given, require the employee to undergo a medical examination without expense to the employee; and

(1A) An employer may require an employee who is in receipt of a periodical payment under section 10 to undergo a medical examination from time to time, without expense to the employee, and the employee shall undergo the examination. (Added 16 of 2006 s 16)

(1B) Where an employee is required under subsection (1) or (1A) to undergo a medical examination—

(i) by a registered medical practitioner, the examination shall be conducted by a registered medical practitioner named by the employer;

(ii) by a registered Chinese medicine practitioner, the examination shall be conducted by a registered Chinese medicine practitioner named by the employer; or

(iii) by a registered dentist, the examination shall be conducted by a registered dentist named by the employer; or

(b) in any other case, the examination shall be conducted by a registered medical practitioner, registered Chinese medicine practitioner or registered dentist named by the employer. (Added 16 of 2006 s 16)

(2) The employee shall, when required, attend upon that the registered medical practitioner, registered Chinese medicine practitioner or registered dentist concerned at the time and place notified to the employee by the employer or that medical practitioner Chinese medicine practitioner or dentist (as the case may be), provided such time and place is reasonable.

(3) If the employee is, in the opinion of any registered medical practitioner, registered Chinese medicine practitioner or registered dentist, unable or not in a fit state to attend on the registered medical practitioner, registered Chinese medicine practitioner or registered dentist named by the employer—

(b) the medical practitioner, Chinese medicine practitioner or dentist so named shall—

(i) fix a reasonable time and place for a medical examination of the employee; and

(3A) As soon as reasonably practicable after an employee has undergone a medical examination required under this section, the medical practitioner, Chinese medicine practitioner or dentist who conducts the examination shall, at the employer’s expenses—

(a) prepare a report on the examination, setting out all findings reasonably related to the injury of the employee; and

(3B) The employee may in writing request the employer to send to him, free of charge, a copy of the report referred to in subsection (3A). (Added 16 of 2006 s 16)

(3C) The employer commits an offence and is liable on conviction to a fine at level 3 if he fails, without reasonable excuse, to comply with a request under subsection (3B) before the later of the following—

(b) the expiry of 14 days after the report concerned is received by the employer. (Added 16 of 2006 s 16)

(4) If the employee fails to undergo a medical examination as required under this section, his right to compensation shall be suspended until such examination has taken place; and if such failure extends over a period of 15 days from the date when the employee was required to undergo the examination under subsection (2) or (3), as the case may be, no compensation shall be payable, unless the Court is satisfied that there was reasonable cause for such failure.

(5) The employee shall be entitled to have his own registered medical practitioner, registered Chinese medicine practitioner or registered dentist present at such examination, but at his own expense.

(6) Where the employee is not attended by a medical practitioner he shall, if so required by the employer, submit himself for treatment by a registered medical practitioner, registered Chinese medicine practitioner or registered dentist without expense to the employee.

(7) If the employee fails to submit himself for treatment by a medical practitioner when so required under subsection (6), or having submitted himself for such treatment disregards the instructions of the registered medical practitioner, registered Chinese medicine practitioner or registered dentist concerned then if it is proved that such failure or disregard was unreasonable in the circumstances of the case and that the injury has been aggravated thereby, the injury and resulting incapacity shall be deemed to be of the same nature and duration as they might reasonably have been expected to be if the employee had submitted himself for such treatment, and had duly carried out the instructions of, such medical practitioner, Chinese medicine practitioner or dentist, and compensation, if any, shall be payable accordingly.

(8) Where under this section a right to compensation is suspended, no compensation shall be payable in respect of the period of suspension.

(9) Notwithstanding the previous provisions of this section, where a claim for compensation is made in respect of the death of an employee, then if the employee failed to undergo a medical examination or submit himself for treatment when so required under this section or having submitted himself for such treatment disregarded the instructions of the registered medical practitioner, registered Chinese medicine practitioner or registered dentist concerned, and if it is proved that such failure or disregard was unreasonable in the circumstances of the case and that the death of the employee was caused thereby, the death shall not be deemed to have resulted from the injury, and no compensation shall be payable in respect of the injury.

Subsection (1) was substituted pursuant to s 16(1) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

Subsections (1A) and (1B) were added pursuant to s 16(2) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the first set of square brackets in subs (2) were substituted pursuant to s 16(3) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the second set of square brackets in subs (2) were substituted pursuant to s 16(4) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

Subsection (3) was substituted pursuant to s 16(5) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

Subsections (3A), (3B) and (3C) were added pursuant to s 16(6) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the first set of square brackets in subs (4) were substituted pursuant to s 16(7) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the second set of square brackets in subs (4) were substituted pursuant to s 16(8) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the square brackets in subs (5) were substituted pursuant to s 16(9) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the square brackets in subs (6) were substituted pursuant to s 16(10) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the first set of square brackets in subs (7) were substituted pursuant to s 16(11) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the second set of square brackets in subs (7) were substituted pursuant to s 16(12) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the third set of square brackets in subs (7) were substituted pursuant to s 16(13) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the first set of square brackets in subs (9) were substituted pursuant to s 16(14) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within the second set of square brackets in subs (9) were substituted pursuant to s 16(15) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The basic principle under this section is the same as that embodied in the Workmen’s Compensation Act 1925 s 17. Subsection (8) is the same as s 20 of the 1925 Act.

This section requires the employee to submit himself to an examination by a medical practitioner if so requested by the employer. The medical practitioner will often recommend surgery to the employee. Refusal by the employee to undergo surgery, however, will not curtail his entitlement to compensation under the Ordinance, even if such refusal is unreasonable, because the common law principle of mitigation of damages has no application to the Ordinance: see Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HKLR 556, [1981] HKCU 53; Tsang Lin v Tong Ling Shipping and Enterprises Co Ltd [1983] 1 HKC 449; Kong Lap Hung v Chan Chiu [1991] 2 HKC 470. In the Kong Lap Hung case the judge held that curtailment will not arise unless the unreasonable refusal was in the face of the instructions of the employer’s doctor, to whom the employee was obliged under subs (6), to submit himself for treatment.

Before an employer can rely on this subsection, he must have satisfied his obligation for payment of periodical payment under s 10 to the injured employee: see Yu Yau Choi v Ming Sang (HK) Engineering Ltd (DCEC 833/2000, 2 January 2001, DC, unreported) and Kwok Chi Lung (郭子龍) 訴 Kwan Poi Chi Walter (關培智) t/a Big Apple (Central) [2008] 4 HKLRD 455, Chinese Judgment.

To invoke this subsection, the employer must establish that the employee was not attended by a medical practitioner. Only then can the employer require the employee to submit to medical treatment and at the same time offer to pay for the expenses therefor: see Lau Kwok Keung v Evergo Electric Manufacturing Co Ltd [1989] HKDCLR 40.

Failure to comply with this subsection does not disentitle the employee to compensation. By subs (7), it must first be proved that the failure was unreasonable, and that the injury had been aggravated by such failure: see Kong Lap Hung v Chan Chiu above, at 478. Even if those matters are proved, the penalty is a reduction of compensation, in that the injury and incapacity will be assessed as if the employee had submitted himself for treatment: see Lau Kwok Keung v Evergo Electric Manufacturing Co Ltd [1989] HKDCLR 40.

For ‘employee’, see s 2 above; for ‘compensation’, ‘Court’, ‘employer’, ‘registered Chinese medicine practitioner’, ‘registered dentist’, ‘registered medical practitioner’ and ‘medical treatment’, see s 3 above and notes thereto.

16A. Determination of claims in respect of injuries

(a) a claim for compensation arises in respect of an accident causing injury to an employee that results in temporary incapacity whether total or partial ···; or

(b) a claim for compensation arises in respect of an accident causing injury to an employee that results in loss of earning capacity as assessed under section 16D(5), 16E(8) or (9), 16G(2) or 16GA(1),

the Commissioner may assess the compensation payable under sections 7, 9 and 10.

(1A) Compensation shall not be assessed by the Commissioner under subsection (1) unless claim for compensation arises within 24 months after the happening of the accident.

(2) Where the Commissioner assesses compensation under subsection (1) he shall issue to the employer and the employee a certificate in such form as he may specify stating the amount of the compensation and details of the assessment, and shall retain one copy of the certificate for his records.

(3) An objection to the amount of compensation assessed under subsection (1) may be made in writing-

(i) in the case of the employer or employee, the date of issue of the certificate issued under subsection (2);

(ii) in the case of the ECAFB, the date on which an application is made under section 16 of the Employees Compensation Assistance Ordinance (Cap 365) by the employee,

or within such further time as the Commissioner, in the circumstances of any particular case, thinks fit;

(a) if the objection relates to the assessment of the percentage of loss of earning capacity made by an Ordinary Assessment Board under section 16D(5) or by a Special Assessment Board under section 16E(8) or (9), forward a copy of the objection to the Ordinary Assessment Board or the Special Assessment Board, as the case may be, for a review under section 16G(2); and

(b) after taking into account the objection and any review referred to in paragraph (a) of this subsection, confirm, vary or cancel the assessment of compensation under subsection (1).

(5) Upon completing a review under subsection (4), the Commissioner shall issue to the employer and the employee and, where applicable, the ECAFB a certificate in such form as he may specify stating-

(6) Upon the issue of a certificate under subsection (5), the certificate issued under subsection (2) shall be cancelled.

(a) under subsection (2), other than a certificate cancelled under subsection (6); or

(i) until the contrary is proved it shall be presumed that the certificate is so issued and signed; and

(a) under subsection (2), other than a certificate cancelled under subsection (6); or

(9) Subject to section 18, the employer shall pay to the employee within a period of 21 days after-

(b) where an objection is made under subsection (3), the date of issue of the certificate issued under subsection (5),

(i) the total sum of any periodical payments made by the employer to the employee under section 10 in respect of the injury to which the certificate relates; and

(ii) any sum which the Commissioner has ordered to be deducted under section 13(3).

(10) An employer who fails without reasonable excuse to comply with subsection (9) shall pay to the employee, in addition to the amount of compensation payable under that subsection-

(a) upon the expiry of the payment period, a surcharge of the percentage specified in the third column of the Sixth Schedule shown opposite section 16A(10)(b) specified in the first column of that Schedule of the amount of compensation then remaining unpaid or the amount specified in the second column of the Sixth Schedule shown opposite that section as specified, whichever is the greater; and

(b) upon the expiry of 3 months after the expiry of the payment period, a further surcharge of the percentage specified in the third column of the Sixth Schedule shown opposite section 16A(10)(b) specified in the first column of that Schedule of the amount then remaining unpaid of the aggregate of the amount of compensation referred to in paragraph (a) and the surcharge imposed under that paragraph or the amount specified in the second column of the Sixth Schedule shown opposite that section as specified, whichever is the greater.

(Amended L.N. 390 of 1987; L.N. 435 of 1991; L.N. 463 of 1993; L.N. 566 of 1995; 36 of 1996 s 11)

(11) For the purposes of subsection (10) ‘payment period’ (付款期) means the appropriate period for payment referred to in subsection (9).

(12) An employer who fails without reasonable excuse to comply with subsection (9) or (10) commits an offence and is liable to a fine at level 6.

(13) For the purposes of this section ‘date of issue’ (發出日期) means the date appearing on the certificate of assessment.

This originally consisted of 11 and was added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words ‘for a period not exceeding 14 days’ (within square brackets) in subs (1)(a) were introduced by the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), but were deleted by the Employees’ Compensation (Amendment) Ordinance 1985 (31 of 1985), commencing 14 June 1985. The Commissioner for Labour may therefore assess the compensation whether or not the period of incapacity exceeds 14 days. Subsection (1) was subsequently substituted pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 1 January 1989.

The words within the first set of inner square brackets in subs (1)(b) and the third set of inner square brackets in subs (1) were substituted and the words within the second set of square brackets in subs (1)(b) were deleted pursuant to s 11 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

Subsection (1A) was added pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 1 January 1989.

Subsection (3) was substituted pursuant to s 4 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002. Subsection (4) was substituted pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 1 January 1989. The words within the first set of square brackets in subs (4)(b) were repealed pursuant to s 11 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996. The words within the second set of square brackets were added pursuant to s 7 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.

Subsection (4A) was originally added pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 1 January 1989 but subsequently repealed by s 11 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

The words within square brackets in subs (5) were added pursuant to s 4 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

The words within square brackets in subs (8) were added pursuant to s 4 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

The words within the first set of square brackets in subs (10) were deleted pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 1 January 1989.

The amounts prescribed in subs (10)(a) and (b) have been revised from time to time: see LN 390/87, LN 435/91 and LN 463/93. The words within the second to fourth set of square brackets were substituted pursuant to s 11 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

Subsection (12) was added pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 1 January 1989. The words within the inner set of square brackets were substituted pursuant to s 11 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996. The number ‘6’ was amended pursuant to s 11 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsection (13) was added pursuant to s 7 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.

This section, which was inserted by the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), introduces a simple and expeditious method of dealing with claims in respect of minor injuries which form the majority of compensation claims.

The section provides for assessment of such claims by the Commissioner for Labour and the issue of a certificate of assessment. Provision is made for a review where there is an objection to the assessment, and for appeal to the District Court. Unless an appeal is lodged, the balance of the amount of compensation assessed in the certificate remaining unpaid must be paid within 21 days of the issue of the relevant certificate, and a surcharge is payable on any overdue amount. A certificate may also be made and enforced as an order of the District Court.

The Court of Appeal in Lam Chi Biu v Mak Lee Ltd & Anor [2005] 3 HKC 15 held that the matters stated in the Certificate of Compensation Assessment issued under this section, similar to a Certificate of Assessment (Form 7) issued under s 16F, would constitute conclusive evidence in the absence of an appeal. In other words, the assessment as stated in the certificate is binding and conclusive unless an appeal is lodged within the prescribed time.

It has been clarified by the Court of Appeal that the Certificate of Compensation Assessment under this section is not binding as to liability since the provisions of s 15(3)(b) of the Ordinance militates against a construction that a determination of liability may be made by the Commissioner for Labour. The proper forum to contest liability remains to be the District Court after invoking the procedures under s 18A: see Lam Chi Biu v Mak Lee Ltd & Anor [2005] 3 HKC 15(CA) above. In other words, the Court cannot simply make an order for enforcement of a Certificate of Compensation Assessment or a Certificate of Review of Compensation Assessment without the matter proceeding to trial when liability is contested: see Wan Miu Sum v Hing Lung Holdings Ltd (DCEC 1512/2007, 27 June 2008, DC, unreported).

In Lau Suet Fung v Future Engineering Co (CACV 110/2003, 6 February 2004, CA, unreported, [2004] HKCU 139), the Court of Appeal commented that it was misleading to retain the term ‘minor’ in the heading of this section because, by virtue of s 16D below, the Commissioner for Labour in effect assessed all claims for compensation under the umbrella of this section.

This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4 (PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.

In Chung Lung Shun v Adams Parking (International) Ltd [1996] 3 HKC 50, [1996] 1 HKLR 49(CA), the Court of Appeal held that the time limit imposed by s 14 does not regulate an administrative appeal or application for an award of compensation under this subsection, and that those administrative appeals or applications have their own built-in time limitation period.

It has been held in Li Wan Kei v Hyundai Engineering & Construction Co Ltd (DCEC 1425/2004, 2 December 2005, DC, unreported, [2005] HKCU 1700) at paragraph 12, per District Judge C B Chan, that a claim for compensation can arise upon the filing of Form 2 by an employer and the attendance of an injured employee for clearance for sick leave and treatment by the Occupational Medicine Unit which will vet the situation of the injured employee to consider whether the injured employee is ready for assessment by the Employees’ Compensation Assessment Board. In other words, a formal application is not necessary before the Commissioner of Labour can proceed to make an assessment under this section. Accordingly, a respondent employer cannot rely on the absence of a notice of claim to the Commissioner of Labour within the limitation period of 24 months under s 14 to challenge the own built-in time limitation period of s 18 appeals.

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘Court’, ‘employer’, ‘Ordinary Assessment Board’, ‘partial incapacity’, ‘Special Assessment Board’ and ‘total incapacity’, see s 3 above and notes thereto.

16B. Cancellation of injuries claim certificate by the Court

(1) Notwithstanding anything in section 16A, the Court may, on application by the employer, the employee, the Commissioner or the ECAFB, cancel a certificate issued under section 16A(2) or (5) and make such order (including an order as to any sum already paid under the certificate) as in the circumstances the Court may think just, if it is proved that-

(a) the sum paid or to be paid was or is not in accordance with the provisions of this Ordinance; or

(b) the certificate was issued in ignorance of, or under a mistake as to, the true nature or the extent of the injury; or

(2) An application under subsection (1) shall be made within 6 months of the date of issue of the certificate in respect of which the application is made, or within such further time as the Court, in the circumstances of any particular case, thinks fit.

This section was added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words within square brackets in subs (1) were substituted pursuant to s 5 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

The words within square brackets in subs (1)(b) were added pursuant to s 2 of the Employees’ Compensation (Amendment) Ordinance 1986 (60 of 1986), commencing 31 October 1985.

The court will not entertain submissions falling outside the 3 statutory grounds set out under this section for making a cancellation of the certificate: see Shum Tsz Yan v Union Medical Centre Ltd t/a Shatin International Medical Centre Union Hospital (DCEC 1135/2004, 19 July 2006, DC, unreported, [2006] HKCU 1212).

It had been held that the limitation period for cancellation of the certificate pursuant to this section is governed by s 14: see Chung Lung Shun v Adams Parking (International) Ltd [1995] 2 HKC 605(DC) at 610. That decision was, however, reversed on appeal. See the notes to s 18(2) below.

The court cannot decide on the application of this subsection, divorced from all other considerations, even if that exercise is confined to the question of time limits: see Chung Lung Shun v Adams Parking (International) Ltd [1995] 2 HKC 605(DC) at 610.

In Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246, it was held that the correctness (or otherwise) of an assessment by the Ordinary Assessment Board has to be judged with regard to the employee’s condition at the time of the issue of the minor injuries compensation certificate, disregarding events subsequent thereto which might make the extent of injury or the extent of loss of earning capacity greater than it was thought to be at the time of the issue of the certificate.

The court retains a discretion to extend the time for making an application to cancel the Certificate if the court thinks fit in the circumstances of the case. For an illustration of the court exercising such a discretion: see Shum Tsz Yan v Union Medical Centre Ltd t/a Shatin International Medical Centre Union Hospital above.

By making an application to cancel the Certificate within the time limit as prescribed under this subsection, an injured employee may avoid other time bar difficulties arising from s 18 (6 months from the date of assessment) or s 18A (24 months from the date of accident by s 14) to have his employees’ compensation claim adjudicated by the court: see Ho Shui Tak v Wan Kei Geotechnical Engineering Co Ltd (DCEC 8/2003, 1 April 2003, DC, unreported, [2003] HKCU 345).

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘Court’ and ‘employer’, see s 3 above and notes thereto.

16C. (Repealed 31 of 1985 s 4)

This section, which was inserted by the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 82), commencing 1 July 1983, provided that where an employee suffers an injury resulting in a period of temporary incapacity exceeding 14 days (but not leading to permanent incapacity), the Commissioner for Labour will notify the employer of the date of cessation or probable cessation of the period of incapacity. The section, however, was repealed by s 4 of the Employees’ Compensation (Amendment) Ordinance 1985 (31 of 1985), commencing 14 June 1985, consequential to the removal of the 14-day incapacity period requirement (see the notes to s 16A(1)(a) above).

16CA. Determination of compensation by agreement in certain cases

(1) Where a claim arises in respect of an accident causing injury to an employee that results in temporary incapacity, whether total or partial, for a period exceeding 3 days but not exceeding 7 days, the employer may enter into an agreement with the injured employee as to the compensation payable by him under section 10(1).

(2) Periodical payments agreed under subsection (1) shall be made in the manner specified under section 10(3).

(3) Any lump sum agreed under subsection (1) shall be paid on or before the day immediately following such agreement on which wages would have been payable to the employee if he had continued to be employed under the contract of service or apprenticeship under which he was employed at the time of accident.

This section was added pursuant to s 4 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1992 (64 of 1992), commencing 10 July 1992.

The words within square brackets in subs (1) were added pursuant to s 5 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997.

This section, together with s 16CB, aim at providing for a procedure for the determination of compensation by agreement in certain cases of temporary incapacity without recourse to the Commissioner for Labour or to the court, and providing for the reporting of the terms of such agreement between the employer and employee to the Commissioner for Labour and for the review and cancellation of such agreement under specified circumstances.

For meaning, see the Employment Ordinance (Cap 57) s 2(1). See also New Bright Industrial Co Ltd v Wong Sau Chi & Ors [1995] 2 HKC 357.

For ‘employee’, see s 2 above; for ‘contract of service’, see the notes to s 2(1) above; for ‘compensation’, ‘contract of apprenticeship’, ‘employer’, ‘partial incapacity’ and ‘total incapacity’, see s 3 above and notes thereto.

16CB. Cancellation of agreement by Commissioner

(1) Where an agreement has been entered into under section 16CA, the Commissioner may on the application of either party to the agreement cancel the agreement if he is satisfied that-

(a) the sum paid or to be paid was or is not in accordance with the provisions of this Ordinance; or

(b) the agreement was entered into in ignorance of, or under a mistake as to, the true nature or extent of the injury; or

(c) the agreement was obtained by such fraud, undue influence, misrepresentation or other improper means as would, in law, be sufficient ground for avoiding it.

(2) An application under subsection (1) shall be made within 6 months after the date on which the parties entered into the agreement or within such further time as the Commissioner in the circumstances of any particular case thinks fit.

(3) Where the Commissioner cancels the agreement under subsection (1), he shall make an assessment under section 16A of the compensation payable under section 10 and the provisions in this Ordinance affecting such assessment shall apply accordingly.

This section was added pursuant to s 4 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1992 (64 of 1992), commencing 10 July 1992.

This section deals with the cancellation of an assessment of compensation entered into under s 16CA by the Commissioner upon application by either party to the agreement. It is worth noting that the court also has the power to cancel the Commissioner’s certificate, leaving the court free to make its award as the only award, since there is no provision for parallel awards - one by the Commissioner and one by the court: see Liu Ah Sai v Yiu Lian Dockyards Ltd [1996] 4 HKC 244. See also the notes to s 16CA above.

This is defined in relation to the Limitation Ordinance (Cap 347) s 26(2), in Yeu Shing Construction Co Ltd v A-G [1988] HKC 710 at 714 per Godfrey J, to mean unconscionable behaviour.

16D. Employees’ Compensation (Ordinary Assessment) Boards

(1) The Commissioner shall for the purposes of this section appoint one or more boards to be known as Employees’ Compensation (Ordinary Assessment) Boards.

(a) 2 persons each of whom shall be a registered medical practitioner, a registered Chinese medicine practitioner or registered dentist; and

(3) A member of an Ordinary Assessment Board shall hold office on such terms and for such period as the Commissioner may determine.

(4) The Commissioner may refer to an Ordinary Assessment Board any claim for compensation for an injury to an employee of which he has notice if in the opinion of the Commissioner such injury is likely to result in permanent total or partial incapacity.

(5) In respect of a claim referred to it under subsection (4), an Ordinary Assessment Board shall-

(a) subject to subsection (6), assess the percentage of the loss of earning capacity permanently caused by the injury in accordance with this Ordinance; and

(6) Where it appears to an Ordinary Assessment Board that a claim referred to it under subsection (4) is one to which section 9(1A) applies, it shall refer the claim to a Special Assessment Board.

(7) A decision of an Ordinary Assessment Board, if not unanimous, shall be that of the majority of the members thereof.

(8) Subject to this section, the procedure of an Ordinary Assessment Board shall be such as the Commissioner may determine.

This section was added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words within the square brackets in subs (2)(a) were substituted pursuant to s 17 of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within square brackets in subs (2)(b) were added pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1985 (31 of 1985), commencing 14 June 1985.

Subsection (5) was substituted pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.

This section, together with s 16E, establishes a two-tier system of the Employees’ Compensation Assessment Boards. All claims involving the likelihood of permanent incapacity will be referred by the Commissioner for Labour in the first instance to an Ordinary Assessment Board comprising, in addition to registered doctors or dentists, a Labour Officer. The Ordinary Assessment Board will, in most cases, proceed to assess the percentage of loss of earning capacity caused by the injury. However, where the Ordinary Assessment Board considers that special circumstances exist (that is, where the case is one to which s 9(1A) applies), it will refer the claim to a Special Assessment Board consisting of a specialist Occupational Health Officer and 2 Labour Officers, assisted if necessary by up to 2 additional temporary members able to give expert advice on any aspect of a claim. A Special Assessment Board will assess a claim referred to it under s 9(1) or (1A) as it considers appropriate.

[16D.04] Subs (4): The Commissioner may refer to an Ordinary Assessment Board, any claim for compensation for an injury to an employee

Before making such a referral under this subsection, the Commissioner does not need to be satisfied that the injury is related to the employment. Whether the injury is employment related is a question of fact to be decided by the trial judge: see Lui Wai Yin v A-G [1992] HKDCLR 57.

It is wrong either to require the employee: (1) to obtain judgment on liability first, which would result in a trial being split into two parts; or (2) to first obtain an assessment from a private practitioner, which would result in undue hardship to the employee who is normally financially hard-pressed and can hardly afford to have a private practitioner make the assessment: see Lui Wai Yin v A-G above.

The word ‘may’ gives the Commissioner a discretionary power to convene an Assessment Board. There is no guiding principle as to how his discretion should be exercised. The discretion has to be exercised according to the particular circumstances of each case. There are thousands of injured employees, and if the Commissioner were to oblige everyone then he would simply not be able to cope with that situation because this would mean that the Commissioner is not vested with the discretion: see Lui Wai Yin v A-G above.

If the Commissioner decides not to refer the employee to an Assessment Board, the employee may lodge an appeal to the District Court in accordance with s 18. It will not be fit and proper for the employee to apply for a judicial review, as the court will not normally grant a judicial review where there is another venue of appeal: see Lui Wai Yin v A-G above, applying R v Epping Harlow General Commissioners, ex p Goldstraw [1983] 3 All ER 257.

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘medical practitioner’, ‘Ordinary Assessment Board’, ‘partial incapacity’, ‘registered dentist’, ‘Special Assessment Board’ and ‘total incapacity’, see s 3 above and notes thereto.

16E. Employees’ Compensation (Special Assessment) Boards

(1) The Commissioner shall for the purposes of this section appoint one or more boards to be known as Employees’ Compensation (Special Assessment) Boards.

(3) A member of a Special Assessment Board referred to in subsection (2) shall hold office on such terms and for such period as the Commissioner may determine.

(4) The Commissioner may appoint as additional members of a Special Assessment Board not more than 2 persons who are, in his opinion, qualified to give expert advice on any matter relating to a claim for compensation referred to the Special Assessment Board, and may at any time revoke any such appointment.

(5) A member appointed under subsection (4) may at any time resign by giving notice in writing to the Commissioner.

(6) The Commissioner shall appoint a member of a Special Assessment Board to be the chairman of the Special Assessment Board.

(7) At all meetings of a Special Assessment Board 3 members shall form a quorum.

(8) In respect of a claim referred to it by an Ordinary Assessment Board under section 16D(6), a Special Assessment Board shall, subject to subsection (9), assess the percentage of the loss of earning capacity permanently caused by the injury in accordance with this Ordinance.

(9) Where it appears to a Special Assessment Board that a claim referred to it by an Ordinary Assessment Board under section 16D(6) is a claim to which section 9(1A) applies, the Special Assessment Board shall assess the percentage of the loss of earning capacity permanently caused by the injury for the purposes of section 9(1A).

(10) A decision of a Special Assessment Board shall be that of the majority of the members in attendance or, if there is no majority, shall be that of the chairman thereof.

(11) Subject to this section, the procedure of a Special Assessment Board shall be such as the Commissioner may determine.

This section was added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

For ‘Commissioner’, ‘compensation’, ‘Ordinary Assessment Board’ and ‘Special Assessment Board’, see s 3 above and notes thereto.

16F. Certificates of assessment

An Ordinary Assessment Board, where it has made an assessment under section 16D(5) or a Special Assessment Board, where it has made an assessment under section 16E(8) or (9), shall issue to the employee, the employer and the Commissioner a certificate in such form as may be specified by the Commissioner giving details of the assessment.

This section was added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

This section provides for the issue of certificates of assessment by both an Ordinary Assessment Board and a Special Assessment Board.

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘employer’, ‘Ordinary Assessment Board’ and ‘Special Assessment Board’, see s 3 above and notes thereto.

16G. Review of assessments

(1) An objection to an assessment by an Ordinary Assessment Board under section 16D(5) or by a Special Assessment Board under section 16E(8) or (9) may be made by the employer or the employee in writing to the Commissioner within 14 days after the date of issue to him of the relevant certificate under section 16F, or within a further time that the Commissioner, in the circumstances of any particular case, thinks fit, stating the ground of the objection, and a copy of the objection shall be sent by the objector-

(b) where the objector is the employee, to the employer. (Replaced 59 of 1988 s 5)

(a) the Commissioner shall forward a copy of the objection to the Ordinary Assessment Board or the Special Assessment Board, as the case may be; and

(b) all issued certificates and proceedings in progress under or pursuant to section 16A are void.

(2) On receipt of a copy of the objection forwarded under subsection (1A) or under section 16A(4)(a), the Ordinary Assessment Board or the Special Assessment Board, as the case may be, shall review its assessment and, after taking into account the objection, may confirm or vary the assessment.

(3) Upon completing a review under subsection (2) the Ordinary Assessment Board or the Special Assessment Board, as the case may be, shall issue to the employee, the employer and the Commissioner a certificate in such form as may be specified by the Commissioner stating-

(4) Upon the issue of a certificate under subsection (3), the certificate referred to in subsection (1) shall be cancelled.

(5) Notwithstanding anything in subsection (2), (3) or (4), where upon a review of an assessment by an Ordinary Assessment Board under subsection (2), it appears to the Ordinary Assessment Board that the claim for compensation to which the assessment relates is one to which section 9(1A) applies, it shall not complete the review but shall refer the claim to a Special Assessment Board.

(6) The provisions of sections 16E, 16F and this section shall apply to a claim referred to a Special Assessment Board under subsection (5) as if it were a claim referred to a Special Assessment Board under section 16D(6).

(7) Upon the issue by the Special Assessment Board of a certificate under section 16F in respect of a claim referred to it under subsection (5), the certificate issued under section 16F in respect of that claim by the Ordinary Assessment Board shall be cancelled.

(8) Subsections (2), (3), (4), (5), (6) and (7) shall not apply where an assessment is reviewed under section 16GA(2).

This section was added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

Subsection (1) was substituted pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 1 January 1989.

Subsection (1A) was added pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 1 January 1989.

The words within square brackets in subs (2) were added pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 1 January 1989.

Subsection (8) was added pursuant to s 6 of the Employees’ Compensation (Amendment) Ordinance 1985 (31 of 1985), commencing 14 June 1985.

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘employer’, ‘Ordinary Assessment Board’ and ‘Special Assessment Board’, see s 3 above and notes thereto.

16GA. Review of assessments other than under section 16G

(1) Without prejudice to section 16G, an Ordinary Assessment Board or a Special Assessment Board may, on its own initiative, review its assessment under section 16D(5) or section 16E(8) or (9), as the case may be, within 3 months after the date of issue of a certificate under section 16F, or within such further time as the Ordinary Assessment Board or the Special Assessment Board, in the circumstances of any particular case, thinks fit, if the assessment-

(a) was made in ignorance of, or under a mistake as to, the true nature or the extent of the injury; or

(b) was based upon any false or misleading information or statement given or made,

(2) An Ordinary Assessment Board or a Special Assessment Board may review its assessment under subsection (1) and at the same time take into account any objection under section 16G(1).

(3) Before proceeding with a review under subsection (1), the Ordinary Assessment Board or the Special Assessment Board, as the case may be, shall notify the employer, the employee and the Commissioner in writing of the review and the ground of the review specified in subsection (1), and (where applicable) that an objection under section 16G(1) is being taken into account.

(4) Upon completing a review under subsection (1) or (2), the Ordinary Assessment Board or the Special Assessment Board, as the case may be, shall issue to the employer, the employee and the Commissioner a certificate in such form as may be specified by the Commissioner stating-

(5) Upon the issue of a certificate under subsection (4), the certificate referred to in subsection (1) shall be cancelled.

(6) Notwithstanding anything in subsection (1), (2), (4) or (5), where upon a review of an assessment by an Ordinary Assessment Board under subsection (1) or (2), it appears to the Ordinary Assessment Board that the claim for compensation to which the assessment relates is one to which section 9(1A) applies, it shall not complete the review but shall refer the claim to a Special Assessment Board.

(7) The provisions of sections 16E and 16F and of this section shall apply to a claim referred to a Special Assessment Board under subsection (6) of this section as if it were a claim referred to a Special Assessment Board under section 16D(6).

(8) Upon the issue by the Special Assessment Board of a certificate under section 16F in respect of a claim referred to it under subsection (6) of this section, the certificate issued under section 16F in respect of the claim by the Ordinary Assessment Board shall be cancelled.

This section was added pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1985 (31 of 1985), commencing 14 June 1985.

The words within square brackets in subs (1)(a) were added pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1986 (60 of 1986), commencing 31 October 1985.

This section empowers an Ordinary Assessment Board or a Special Assessment Board to review an assessment of compensation on its own initiative, and to either confirm or vary its previous assessment.

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘employer’, ‘Ordinary Assessment Board’ and ‘Special Assessment Board’, s 36A above and notes thereto.

16H. Certificates as evidence

(a) under section 16F, other than a certificate cancelled under section 16G(4) or (7) or section 16GA(5) or(8); or

(i) until the contrary is proved, it shall be presumed that the certificate is so issued and signed; and

This section was added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words within square brackets in paras (a) and (b) were added pursuant to s 8 of the Employees’ Compensation (Amendment) Ordinance 1985 (31 of 1985), commencing 14 June 1985.

Generally, this section provides that a certificate issued under ss 16F, 16G(3) or 16GA(4) shall be evidence of the matters stated therein. The Court of Appeal in Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413 held that the matters stated in the certificate would constitute conclusive evidence in the absence of an appeal. In other words, the assessment as stated in the certificate would become final unless an appeal is lodged within the prescribed time. The court is not prepared to entertain any expert evidence at the trial if the parties have chosen not to make a timely appeal, or to apply for leave to appeal out of time prior to the hearing. That being the case, the only evidence before the court as to quantum should be the certificate and nothing more. Following this decision, the filing of an appeal against a certificate of assessment and/or a certificate of review of assessment has become the prevailing practice nowadays so as to prevent exclusion of further medical evidence on the issues of quantum between the parties. Ng Ming Cheong v Mass Transit Railway Corporation, above, was followed in Tam Yuen Hoi v 陳牧成 (Chan Muk Sing) & Ors (DCEC 1011/2000, 26 February 2004, DC, unreported); Ng Wai Po v 黃波記有限公司 (Wong Po Kee Ltd, transliteration) (DCEC 561/2001, 22 June 2005, unreported, Chinese judgment); Lai Wong Tai v Wong Ka Fan trading as Sang Hing Lung (DCEC 564/2001, 26 June 2003, DC, unreported, Chinese judgment); Tso Chun Cheong v Mak Chi Ming t/a Lik Wang International Sofa Co (DCEC 873/2006, 6 March 2007, DC, unreported, [2007] HKCU 370) and Tiempo Victoria Dagoc v Lai Yee Cheong Trudo (DCEC 1102/2008, 10 September 2009, DC, unreported).

In the absence of an appeal, it is still open to a party to adduce medical expert evidence to dispute liability since the unchallenged assessments under the certificates issued under ss 16F, 16G(3) or 16GA(4) only deal with issues of quantum: see Wong Tak Fai v Orient Trucking Ltd (DCEC 1032/2007, 30 May 2008, DC, unreported).

The fact that the certificate of the Ordinary Assessment Board is admissible as evidence of its contents by virtue of this section, is no reason for not calling the members of the Board, particularly when one wishes to overturn the certificate and not rely on it. It is also necessary to call the members of the Board if the issue is whether the Board was ignorant of or mistaken about the true nature of the injury. This is because the members can give direct evidence on what they did and did not take into account when they assessed the employee’s loss of earning capacity and whether or not they appreciated the employee’s pre-existing condition and vulnerability to future injury: see Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246 per Deputy District Judge Bharwaney (per curiam).

For ‘Ordinary Assessment Board’ and ‘Special Assessment Board’, see s 3 above and notes thereto.

16I. Attendance of employee for purposes of assessment, etc

(1) The Commissioner, an Ordinary Assessment Board or a Special Assessment Board may by notice in writing to an injured employee require the employee to attend for the purposes of an examination or assessment on such date and at such time and place as is specified in the notice.

(2) An employee who receives a notice under subsection (1) shall as soon as possible notify his employer (if any) of the date, time and place for such attendance.

(3) For the purposes of an attendance referred to in subsection (1) an employer shall, if the employee is not already-

grant to the employee leave of absence from work and, subject to subsection (4), shall pay to the employee, within 7 days after the day on which wages are normally paid to the employee next following such absence from work, the wages or salary in respect of such absence from work or the wages or salary he would have earned if he had worked during such period.

(4) No wages or salary shall be payable under subsection (3) by an employer unless he was the employer of the employee at the time of the accident.

(a) as an action for civil debt in any court or tribunal of competent jurisdiction; or

(b) as a claim for compensation in the Court, either independently of or in conjunction with any other claim for compensation brought in the Court.

(6) Any employer who without reasonable excuse contravenes subsection (3) commits an offence and is liable to a fine at level 5.

This section was added pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words within square brackets in subs (6) were substituted pursuant to s 12 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

This section, which was introduced by the, provides that an employee may be required to attend at a stated time and place for the purposes of an examination or assessment. An employer must grant leave of absence to an employee for such attendance, and where he was the employer at the time of the accident, must also pay the employee’s salary or wages for the period of absence. A penalty is imposed for failure to pay.

For meaning, see the Employment Ordinance (Cap 57) s 2(1). See also New Bright Industrial Co Ltd v Wong Sau Chi & Ors [1995] 2 HKC 357.

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘Court’, ‘Ordinary Assessment Board’ and ‘Special Assessment Board’, see s 3 above and notes thereto.

17. (Repealed 36 of 1996 s 13)

This section, which dealt with agreements as to compensation for certain injuries, was repealed pursuant to s 13 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

17A. (Repealed 36 of 1996 s 14)

This section, which dealt with the agreement to include surcharge provision, was repealed pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

17B. (Repealed 36 of 1996 s 15)

This section which dealt with the cancellation of agreement by the court, was repealed pursuant to s 15 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

18. Appeals to the Court

(1) Subject to this section, an appeal shall lie to the District Court from any decision or assessment of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board under section 16A, 16D, 16E, 16G or 16GA.

(2) No appeal shall lie after the expiry of 6 months from the date of the decision or, in the case of an assessment, of the date of issue of the relevant certificate under section 16A, 16F, 16F16G or 16GA, as the case may be:

Provided that the Court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that the time has elapsed.

(3) On an appeal under this section, the Court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs, as it thinks fit.

This section was substituted pursuant to s 16 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words within square brackets in subs (1) were substituted pursuant to s 10 of the Employees’ Compensation (Amendment) Ordinance 1985 (31 of 1985), commencing 14 June 1985.

Subsections (2) and (3) were added pursuant to s 16 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983. The words within the first set of inner square brackets were substituted pursuant to pursuant to s 8 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 8 July 1988, and the words within the second set of inner square brackets were substituted pursuant to s 10 of the Employees’ Compensation (Amendment) Ordinance 1985 (31 of 1985), commencing 14 June 1985.

Where a party intends to appeal against the assessments in the Certificate of Assessment (Form 7) or the Certificate of Review of Assessment (Form 9) pursuant to this section, the court has held that it is incumbent on such party to duly and plainly invoke the jurisdiction of the District Court. This is of primary importance since the assessments of Form 7 or Form 9 remains binding unless there is an appeal (see para [16H.03] above). It is also considered that under the rules of natural justice the other party is entitled to know clearly and plainly whether he has to meet an appeal against the assessments in Form 7 and Form 9: see Lam Pui Yi Anita v Secretary for Justice [2005] 4 HKC 256, para 44.

Although there is no prescribed form for an appeal under this section, the party invoking the court’s jurisdiction must notify the court and inform the other party about the appeal in clear, certain and unambiguous terms. There is no burden on the court or the other party to review all the documents to investigate into all circumstances to ascertain whether there is or is not an appeal. Nor is there any burden on the court or the other party to guess on ambiguous terms or equivocal conduct as to whether there is in truth an appeal or not. If there is no ‘plain’ appeal, made within the prescribed period or any period as extended by the court, that invokes the jurisdiction of the court under this section, expert medical evidence cannot be adduced at trial to challenge the binding assessments contained in Form 7 or Form 9 even having those evidence filed and served (Lam Pui Yi Anita v Secretary for Justice above).

In Lam Pui Yi Anita v Secretary for Justice above, District Judge Marlene Ng issued the following Practice Note laying out guidelines to practitioners for dealing with appeals against the assessments in Form 7 or Form 9 under this section:

A party would likely face adverse costs consequence if he chooses to ignore the above guidelines to make an appeal against a Certificate of Assessment before it is issued and comes into existence: see Chan Kam Sau v Yee Hing Construction Transportation Co Ltd (DCEC 1361/2005, 19 January 2007, DC, unreported, [2007] HKCU 477). This is again emphasized in the postscript of the judgment delivered by District Judge Marlene Ng in Hussain Tanweer v Focus Roller Shutter Ltd (DCEC 1145/2005, 18 September 2006, DC, unreported, [2006] HKCU 1576) as follows:

The Court may however accept that there is effectively an appeal against Form 9 although a party only formally appeals against Form 7: see Nawaz, Malik Shah v Bridgestone Aircraft Tire Co (Asia) Ltd (DCEC 555/2006, 6 November 2007, DC, unreported).

In Tsang Kwong Tong v Tennille Decoration & Design Ltd & Ors (CACV 42/2006, 10 October 2006, CA, unreported, [2006] HKCU 1697), it has been held by the Court of Appeal that the test which is applicable to an appeal brought under this section against a Certificate of Assessment (Form 7) made under s 16D or a Certificate of Review of Assessment made under s 16G of the Ordinance is that stated in Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115, ie to ‘start afresh’, relying not only on the certificate of the Assessment Board but also on any other evidence, especially medical evidence, adduced before it, to assess the loss of earning capacity permanently caused by the injury suffered in an accident at work. See also [18.07] below.

As discussed above, there are no provisions prescribed under the Ordinance or the ECR for the appeal proceedings, apart from the general provisions under this and s 18A. However, r 24 of the Rules confers upon the court jurisdiction to join any apparently interested party to the proceedings before the court, which proceedings must include an appeal under s 18. The court therefore has jurisdiction to join an employee as a party to the appeal against the medical assessment of an Ordinary Assessment Board, even though the employee has not yet filed an application for compensation: see Re Certificate of Review of Assessment in respect of Ng Kai Yin [1991] 2 HKDCLR 61.

It was the Employees’ Compensation (Amendment) Bill in 1982 which eventually gave rise to ss 18 and 18A. Section 18A therefore applies to a s 18 appeal situation: see Re Certificate of Review of Assessment in respect of Ng Kai Yin above.

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the District Court of the Hong Kong Special Administrative Region.

In Li Wan Kei v Hyundai Engineering & Construction Co Ltd (DCEC 1425/2004, 2 December 2005, DC, unreported, [2005] HKCU 1700), it was held that this subsection could be construed to mean that:

In other words, it is not only restricted to an appeal of the assessment or decision by the Commissioner of Labour. In that case, the court held that a respondent employer could not rely on the absence of a notice of claim to the Commissioner of Labour within a period of 24 months as stipulated under s 16A(1A) to challenge the own built-in time limitation period of appeals brought under this section.

This subsection provides that the time limit for appeals to the Court is 6 months, making it the same as the time limits for application to the Court for cancellation orders under ss 16B(2) and 17B(2). In Chung Lung Shun v Adams Parking (International) Ltd [1996] 3 HKC 50, [1996] 1 HKLR 49, the Court of Appeal held that s 18 deals with administrative appeals or applications to the District Court, and these appeals or applications have their own built-in time limitation period. Therefore, s 18 is not subject to the limitation period defined in s 14. See also Cheung Kwan Kwong v Kumagai Maeda Yokogawa Hitachi Joint Venture & Anor (DCEC 289/2000, unreported); Kwok Chi Yip v Wan Kei Geotechnical Engineering Co Ltd & Anor (DCEC 180/2001, 27 July 2001, DC, unreported); Li Wan Kei v Hyundai Engineering & Construction Co Ltd (DCEC 1425/2004, 2 December 2005, DC, unreported, [2005] HKCU 1700) and Wan Miu Sum v Hing Lung Holdings Ltd (DCEC 1512/2007, 27 June 2008, DC, unreported). Under this subsection the court does have a discretion to extend the time for appeal ‘if it thinks fit’. In Chung Sau Ling v Million Join Ltd [2003] 4 HKC 561, the Court of Appeal has made it clear that the applicant asking for an extension of time to appeal should present the court with all relevant information including the reason and length of the delay, the prejudice to the other party if the extension is granted and the merits of the appeal to enable the court to decide whether the overall justice of the case requires an extension.

It appears that the applicant must be able to show a reasonable excuse before the court would exercise the discretion in his favour: see Yu Hao Jan v Wan Yuen Kong t/a Luen Hop Metal Co (DCEC 784/1998, 4 March 1999, DC, unreported), and Lai King Wai v Kwai Chuen Container Service Co Ltd (DCEC 805/2002, 4 December 2003, DC, unreported); cf Yung King v Ka Ming Hop Yick Engineering Co & Ors (DCEC 655/2000, 10 September 2002, DC, unreported, [2002] HKCU 1079), overruled by Chung Sau Ling v Million Join Ltd (above). An oversight by solicitors may not be rejected as a reasonable excuse, but it should be considered in conjunction with other factors such as the merits of the appeal and the prejudice caused to the other party: see Chung Sau Ling v Million Join Ltd (above) and Lau Chi Chai v Ng Fung Slaughterhouse (Hong Kong) Co Ltd (DCEC 1705/2006, 20 August 2008, DC, unreported). An employee whose attention had been diverted on account of disputes over his monetary entitlement upon termination of his employment, was held to have a reasonable excuse to apply for an extension of time to lodge an appeal under this subsection: see Sit Hing Shing v Wai Hang Cheong Petro-Chemicals Ltd (DCEC 882/2000, 21 June 2001, DC, unreported). Language barrier has also been held to constitute a reasonable excuse: see Gurung Umesh v W Ho Civil Engineering & Construction Co Ltd (DCEC 1040/2000, 11 April 2002, DC, unreported). In Limbu Netrakumar v Yau Lee Construction Co Ltd & Anor (DCEC 710/2000, 27 November 2006, DC, unreported, [2006] HKCU 1982), the court granted an extension of time for bringing an appeal under this subsection where the delay, though unduly long, was not due to the fault of the applicant but his former legal representatives. In that case, it was also observed by the court that the applicant did have a meritorious appeal and the respondent would not suffer any prejudice as a result of the time extension granted. Oppressive and inequitable conduct on the part of the employer will provide a reasonable excuse to the employee to make an application for an extension of time under this subsection: see Wong Chin Wah v Varitronix Ltd (DCEC 1105/2005, 5 December 2006, DC, unreported, [2006] HKCU 2008). In Gina Louise Porter v The Hong Kong Jockey Club (DCEC 1211/2007, 21 January 2008, DC, unreported), the Court was amenable to grant leave to an injured employee to make an appeal out of time when the conduct of her claim was affected by the termination of employment subsequent to her resumption of duties after the accident. The Court will however refuse giving leave for an appeal out of time if the application itself is unmeritorious: see Tsang Ho Leung v So Ka Kit, formerly t/a Tak Lee Engineering Co & Anor (DCEC 662/2009, 3 September 2009, DC, unreported).

The absence of a justification for the delay in lodging the appeal would normally be sufficient for the court to refuse the application notwithstanding that the delay is relatively short and there should be no substantial prejudice to the other party: see Limbu Prem Parkash v Ng Yuk Man formerly t/a Sun Fai Transportation Co & Anor (DCEC 51/2008, 19 May 2008, DC, unreported). Where an unreasonable excuse is given, the court has to consider such excuse and balance it with the other factors of the case, such as the prejudice caused to the other party: see Lai King Wai v Kwai Chuen Container Service Co Ltd (above) and Chong Hon Sing v Gammon Skanska Ltd (DCEC 342/2004, 4 October 2006, DC, unreported, [2006] HKCU 1665); or the degree of disparity in the assessments between the government medical board and other medical experts: see Chung Sau Ling v Million Join Ltd (above).

An application to ‘appeal out of time’ is not an application to ‘extend the time within which to appeal’ under this section, especially when such an application is made upon lodging a claim for compensation under ss 9, 10 and 10A of the Ordinance. In Lau Sek Yu David v Citybus Ltd (DCEC 1031/2002, 21 October 2004, DC, unreported, [2004] HKCU 1228), the Court held that giving an extension of time within which to appeal would involve 2 steps as follows:

1. There is an extension of time to appeal; and

2. When there is such an extension of time to appeal, eg 14 days, the appeal is to be made within this period of 14 days.

In other words, if there is no extension of time to appeal, no appeal can be lodged. Practitioners should avoid filing an application with a paragraph simply applying for an appeal out of time under this section to avoid a dismissal of the claim.

An appeal under this section is not an ‘appeal’ as it is used in the ordinary sense of the word. As the parties do not (as is normally the case) know the basis upon which the Assessment Board arrived at its decision, the matter has to be dealt with by the judge as a new application.

Accordingly, the ‘new application’ must follow the procedure laid down in the Ordinance (by virtue of s 21(1)) and r 16 of the ECR: see Chung Lung Shun v Adams Parking (International) Ltd [1996] 3 HKC 50, [1996] 1 HKLR 49(CA),. In other words, a court dealing with an appeal under s 18 has to start afresh, relying not only on the certificate of the Assessment Board but also on any other evidence, especially medical evidence, adduced before it, to assess the loss of earning capacity permanently caused by the injury suffered in an accident at work: see Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246. In testing the conclusion reached by the Assessment Board against the total evidence available, the court in hearing the appeal should also have regard to s 9(1A) which requires it to take into the special circumstances of the injured employee: see Lau Man Keung v Yiu Wing Construction Co Ltd (CACV 2232/2001, 10 June 2002, CA, unreported, [2002] HKCU 690, [2002] 2 HKLRD H15).

Since an appeal under this section is one by way of originating application, there is no need for the appellant to file grounds of appeal: see Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115, affirmed in Chung Lung Shun above.

Where the Commissioner has assessed compensation and issued a certificate under s 16A with reference to an employee’s loss of earning capacity as assessed by the Assessment Board, in determining where to allow an appeal the test should be whether or not the certificate is liable for cancellation. If it is not, then it would be a complete bar to an award of compensation by the court as it is provided under s 18A(1)(b) that ‘except where otherwise provided under this Ordinance, all claims for compensation, except to the extent such claims are determined ···by a certificate under s 16A ··· shall be determined by the District Court’ (Emphasis added): see Liu Ah Sai v Yiu Lian Dockyards Ltd [1996] 4 HKC 244. It appears that the court may act upon its findings of a loss of earning capacity in excess of 5% to cancel the Commissioner’s certificate. Otherwise, the court may also accept other medical evidence to verify if the Assessment Board has been mistaken about the extent of the employee’s injury leading to a wrongful certificate: see Liu Ah Sai v Yiu Lian Dockyards Ltd (above).

For ‘Commissioner’, ‘compensation’, ‘Court’, ‘Ordinary Assessment Board’ and ‘Special Assessment Board’, see s 3 above and notes thereto.