There are increasing numbers of cases brought to the Court by litigants in person. Some of the claimants may have all along been legally represented with or without legal aid but at some point of time, become unrepresented for various reasons. Amongst these unrepresented claimants, some have been criticized by the Court to be claiming excessive employees’ compensation and common law damages for injuries at work from their employers.
It is not uncommon for these cases to drag on and proceed all the way to trial despite reasonable amount of damages/ compensation has been offered to the claimants in prior without prejudice settlement discussions or by sanctioned payments. Lacking of legal advice is one reason. Also, some employees while still legally represented may have disregarded legal advice leading to the discharge of legal aid. Often, employers dragged into the legal proceedings are left with no alternative but to defend the EC/ common law claims all the way to trial. Nevertheless, so long as the employers have made reasonable without prejudice offers or sanctioned payments into court to attempt settling the claim and are able to present to the court all necessary evidence to assist the court to dispose of the case fairly, the employers’ interests will be protected.
We now look at some recent judgments in case law in this area.
Case Discussion
Background
In Tsang Chui Leung v The Independent Schools Foundation Academy Limited, [2022] HKDC 13 (DCPI 325/2012, judgment handed down on 26 January 2022) (the “PI Claim”) and [2023] HKDC 1104 (DCEC 305/2011, judgment handed down on 26th October 2023) (the “EC Claim”), the Applicant/ Plaintiff who was employed by the Respondent/ Defendant as a technician met with an injury whilst on duty. The Applicant/ Plaintiff was legally represented at the time he commenced the EC and PI Claims but at some point of both proceedings, his legal aid certificate was discharged and he became a litigant in person.
It was the Applicant/ Plaintiff’s case that whilst he was walking underneath a scaffolding platform to take pictures, he stepped on sand and debris on the floor thereby slipped and sprained and injured his back.
The PI Claim
The case proceeded to trial with both the issues of liability and quantum being contested. The Judge accepted the Defendant’s submissions that the Plaintiff was not a credible witness and his evidence was unreliable. The Plaintiff failed to prove that there was sand and debris on the floor that caused him to slip and fall. The Plaintiff was found to have accidentally injured himself when he walked underneath the scaffolding platform. The Plaintiff therefore failed to establish his case that the accident happened in the manner as described by him.
The Judge ruled that despite being the employer, the Defendant did not need to provide the Plaintiff with training and guidance on all matters. In simple matters, the Defendant could rely on the Plaintiff’s own common sense to act in a reasonable manner. Bending down to walk underneath a scaffolding platform and taking photos were tasks that did not require any training and guidance from the Defendant. The Plaintiff could exercise his common sense to act reasonably. The Judge went on to hold that there was no negligence on the part of the Defendant, nor did it breach the employment contract, occupiers’ liability or any statutory obligations.
Accordingly, the Plaintiff’s claim was dismissed with costs to the Defendant.
The Judge further held that even if liability had been found in favour of the Plaintiff, the advanced payments already received by the Plaintiff from the Defendant had sufficiently covered the damages that would have been awarded to him.
The EC Claim
As to the EC Claim, the Applicant acting in person, challenged the opinions of all orthopaedic and psychiatric experts including his own appointed experts. The Applicant sought to rely on the outcome assessed by the EC Ordinary Assessment Board (the “Board”) under the Form 9 (Certificate of Review of Assessment). He also contended that all sick leave granted to him should be taken into account for making compensation to him and all medical expenses he had incurred thereby should be recoverable.
As rightly pointed out by Deputy District Judge Wong, the Applicant seemed to have held a misconception that he could obtain compensation for all and the entire period of sick leave being granted. This was obviously a misunderstanding and miscomprehension of the Employees’ Compensation Ordinance (Cap. 282) (the “ECO”).
The Court could depart from the assessment of the Form 9 so long as there is evidence to rebut the same. Section 10(2) of ECO provides that the sick leave certified to be necessary by registered medical practitioners or the Board (the “certified period”) shall be deemed to be a period of temporary incapacity that incapacitates an employee for any employment which he was capable of undertaking at the time of the accident and enables the employee to make a claim for compensation during the certified period. However, such presumption of temporary incapacity during the certified period sets out in section 10(2) of ECO is rebuttable subject to evidential proof.
The Applicant did not seek medical consultation after the accident. More specifically, for the whole month after the accident, he took only 3 days of sick leave and could continue to work and perform full duty. His medical report also indicated that there was great improvement of his back after treatments. Medical records showed a suspicious pattern of sick leave being granted to the Applicant, namely intermittent sick leave of 1 to 2 days for each medical consultation at the initial stage but later on with excessive and prolonged sick leave without reasonable justification. The medical report prepared under section 16 of ECO also showed contradictory medical evidence at the early stage as opposed to the subjective complaints made by the Applicant at the later stage. In contrast with the Applicant’s own assertion, surveillance video footages revealed that he could walk without the use of a walking stick and with normal gait, pace and speed. It also captured the Applicant wearing cervical collar during a medical follow-up but removing it when he went out on the street. He was seen to have been able to turn his head left and right, up and down without any major problem.
The Judge accepted that the medical experts had considered all medical evidence and the surveillance evidence, and had provided detailed analysis and opinions in their joint medical reports. Having considered all the evidence of the case, the Judge accepted that the presumption under section 10(2) of ECO can be rebutted and ruled that the Applicant should not be entitled to compensation for all sick leave being granted to him. Only sick leave of 14 months was allowed as opposed to the Applicant’s claim for sick leave of 48 months.
Takeaway Points
- For cases where injured employees receiving excessive and unreasonably prolonged sick leave, medical assessments on the injured employees pursuant to section 16 of ECO could be conducted in early course so as to obtain medical evidence to rebut the presumption under section 10 of ECO. Evidence by expert assessments under section 16 of ECO also provides justification to stop periodical payments.
- Surveillance could also be conducted and the surveillance video footages could be served as evidence to rebut the presumption under section 10 of ECO.
- Without prejudice offers/ sanctioned payments could be made as soon as possible for the purpose of achieving early settlement and protecting the employer’s costs position.
