KOK WAI LEUNG v. HO TIN BUILDING MATERIAL LTD

DCEC 2686/2016

[2021] HKDC 57

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2686 OF 2016

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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Introduction

1.  This is the trial of an application by the applicant pursuant to sections 7, 8, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”) for compensation for injury caused to him in an accident which took place on 5 December 2014 (the “Accident”).

2.  The applicant also commenced HCPI 676/2017 against the respondent in respect of the Accident.  I have been informed by the applicant’s counsel that due to case management reasons, this application has proceeded to trial first. 

3.  The respondent is a limited company incorporated under the laws of Hong Kong.  Its solicitors ceased to act in about December 2019.  Since then, it has not participated in the proceedings.  The respondent has also failed to file and serve its witness statement pursuant to the Order of HH Judge Levy dated 14 May 2020.  It did not appear at the trial. 

4.  I have been referred to three affirmations of service filed by the applicant’s solicitors which show that the relevant orders and papers have been duly served on the respondent, who had been reminded to attend trial.  I am satisfied that the trial should proceed in the respondent’s absence as per RDC Ord 35, r 1(2).

The Evidence

5.  The applicant has called two witnesses at trial, himself and his colleague, Mr Chong Ching Kit.  They adopted their written witness statements as their evidence.

6.  I have considered their witness statements and the documents referred to me by the applicant’s counsel, Mr Wong. I am satisfied that the applicant has proved his claim and the following matters in particular.

The Accident

7.  On 5 December 2014, the applicant was instructed by the respondent to deliver 16 pallets of bricks to a site in Kowloon City which was occupied by a company called Gee Lee Transportation Company.  Mr Chong Ching Kit was operating a fork lift to stack up a pallet of bricks.  The applicant was standing next to the bricks to ensure that pallets were placed properly on top of each other.  Whilst Mr Chong was moving the fork lift away after offloading a pallet of bricks, the upper pallet suddenly collapsed and the bricks fell onto the applicant.  As a result of this Accident, the applicant sustained serious injury to cervical spine, resulting in tetraplegia. 

Liability

8.  In the Answer dated 31 July 2017, the respondent admits that it was the applicant’s employer at the time of the Accident.  It is the applicant’s case, which I accept, that the Accident occurred arising out of and in the course of his employment with the respondent.

9.  After the Accident, the Labour Department carried out an investigation and found that one of the boards of the upper pallet had broken.  It was recommended by the Labour Department that (a) a safe system of work for handling pallets of bricks should be provided and maintained; and (b) adequate safety information, supervision, instruction and training should be provided to all relevant workers. 

10.  Subsequently, the respondent was charged with failing to ensure safety and health of employee(s) contrary to section 6 of Occupational Safety and Health Ordinance (Cap 509).  On 6 October 2015, the respondent pleaded guilty to the charge and was fined $15,000.  The Brief Fact (which the respondent admitted) stated that the applicant was assigned by the respondent to deliver 16 pallets of bricks to the site on the date of the Accident.

11.  Accordingly, I am satisfied that the respondent is liable to pay compensation to the applicant pursuant to sections 7, 8, 10 and 10A of the ECO for the injury caused to the applicant in the Accident.

Injury and Treatment

12.  After the Accident, the applicant was taken to Queen Elizabeth Hospital (“QEH”). CT scan and subsequent MRI showed fracture of cervical vertebra C5 and dislocation with bone fragment jamming into the spinal canal. On admission, the applicant had total paralysis below C5 and cord edema from C3 to C7 leve1. Steroid therapy was initiated in orthopaedic ward.  Surgical decompression and anterior spinal fusion was performed on 7 December 2014 and he was then transferred to ICU after operation.

13.  After the operation, the applicant was intubated and transferred to ICU on 12 December 2014 for management of nosocomial infection and convulsion.  The applicant suffered 3 episodes of asystole cardiac arrest on 13 and 14 December 2014 with response to cardiopulmonary resuscitation.  The applicant had suboptimal recovery after spinal cord injury and prolonged mechanical ventilation.  Surgical tracheostomy was performed on 22 December 2014.  He was transferred to High Dependency Unit on 23 December 2014 and then to general ward on 30 December 2014.

14.  On 29 March 2015, the applicant was transferred to the ICU for management of recurrent nosocomial infection complicated with septic shock and acute renal failure.  Renal replacement therapy was commenced.  Subsequent renal recovery was noted and renal replacement therapy was stopped on 7 April 2015.  Revision of tracheostomy was performed on 12 April 2015.  The applicant was suspected to have recurrent convulsion on 10 May 2015.  Urgent CT brain scan showed multiple hypodense areas in cerebral hemispheres. Contrast CT on 11 May 2015 revealed rim-enhancing lesion in right parietal lobe, with features favouring abscess formation.  Electroencephalography on 11 May 2015 showed continuous periodic lateralizing epileptiform discharge in the right temporal region compatible with major underlying lesion with irritative discharge.  Neurosurgery team was consulted with emergency craniectomy for removal of suspected brain abscess performed on 11 May 2015.  Microbiology & Infection team was consulted with adjustment of anti-microbial therapy.  The applicant was transferred to the High Dependence Unit on 1 June 2015.  Mechanical ventilation was weaned off on 20 July 2015.  The applicant was transferred to the general ward on 2 July 2015.

15.  Tracheostomy tube was removed on 30 October 2015 and the applicant was transferred to Kowloon Hospital for rehabilitation on 7 December 2015 after being hospitalized in QEH for one year.  He stayed in Kowloon Hospital for another 6 months and was discharged home on 3 June 2016.

16.  During his stay in Kowloon Hospital, the applicant received 4 episodes of care from Physiotherapy Department.  He was unable to stand or walk.  Interventions prescribed included chest physiotherapy, limbs exercise for mobilization and strengthening, and vasomotor training in sitting and standing.   The applicant completed a course of in-patient spinal rehabilitation programme.  He was still dependent in activities of daily living.  He could perform simulated feeding with adapted aids in training.  He was able to maneuver a power wheelchair with adaptive joystick in indoor' environment and stand by assistance.  Prescriptions of wheelchair (manual type), lifting device, bathing aids, rehab-bed, and pressure relieving devices were completed.  For safe home care and application of assistive devices, sessions of carer education were given to the applicant's wife and his domestic helper.

17.  The applicant was also reviewed 9 times by speech therapist. 

18.  After discharge from Kowloon Hospital, the applicant was referred to Oral-Maxillofacial Surgery and Dental Unit of Prince of Wales Hospital. 

19.  On 28 May 2018, the applicant was admitted to Department of Orthopaedics & Traumatology of QMH for fever associated with convulsions.  He was found to have a large infected sacral sore associated with underlying osteomyelitis that required operated debridement on 1 June 2018.  He subsequently had a diverting colostomy done on 22 June 2018.  Definitive management of the sacral sore was achieved via operative debridement and flap coverage which was performed on 31 July 2018 and 10 August 2018.  He was also treated with antibiotics for management of the underlying bone infection.  He was discharged on 13 October 2018 after his clinical condition improved and he was regularly followed up in outpatient clinic.  At the consultation on 14 February 2019, his sacral sore had healed and the infection had subsided.

20.  During his stay in QMH, the applicant was also referred to the Department of Ear, Nose and Throat for management of his sacral sore. 

Form 7 Certificate

21.  The Form 7 Certificate dated 20 September 2017 shows that the applicant suffered from “cervical spine facture resulting in tetraplegia”.  The loss of earning capacity permanently caused by the injury was assessed to be 100%.  The duration of sick leave was assessed to be 1,007 days from 5 December 2014 to 6 September 2017.

22.  There is no appeal against the Form 7 assessment.  Thus, the said assessment constitutes conclusive evidence as to quantum by virtue of section 16H of ECO; Ng Ming Cheong v Mass Transit Railway Corp [1997] HKLRD 1231, 1236G-1237B; Lai Wai Kwong v Yu Kwok Man, DCEC 1171/2015 (27 July 2017), para. 7.

Section 7 compensation

23.  The applicant was born in November 1973.  He was 41 years old at the time of the Accident.  The multiplier for compensation under section 7 is 72: section 7(1)(b) of ECO.

24.  According to the List of Earnings filed by the respondent, the applicant received a sum of $26,820 in the month immediately preceding the date of the Accident.  Since it exceeds the “Specific Amount of Compensation” stated in Sixth Schedule at the time of the Accident (i.e., $23,580), the statutory maximum should be adopted.

25.  According to Form 7, the applicant suffers 100% permanent total incapacity.  Thus, the compensation under section 7 is:

$23,580 x 72 = $1,697,760.

Section 8 compensation

26.  In Lai Wai Kwong (supra), District Judge Levy laid down at para. 8 the following guidelines for determining the amount to be awarded for the section 8 compensation:-

(1) The kind of help required to enable the injured employee to perform the essential actions of life.  The amount of compensation will depend on what kind of help and care the injured requires, which can range from assisting an injured in ambulation only (for example a wheelchair-bound person) to providing all-round basic care such as bathing, taking the injured to the toilet, eating or bed turning to avoid bedsores for a bed-ridden injured.

(2) The place where the injured receives the attention and care to enable an injured to perform the essential actions of life.  If it is one’s own home, compensation can be calculated with reference to the costs of the care provided to the injured.  These costs will include the costs of hiring an outside help (such as a care worker) as well as the loss of wages incurred by a relative or spouse in giving up the latter’s job to care for the injured employee.

(3) The estimated life span of the injured employee.  The longer the life span, the larger the amount needed for the care and attention for the injured employee.

27.  In Lai Wai Kwong (supra), the injured suffered severe head injuries and was rendered a MIP as a result of the accident.  The injured was left totally blind and with left side weakness, significant impairment and post-traumatic epilepsy which remained uncontrolled.  The injured required assistance in activities of daily living and regular support for instrumental activities of daily living.  The learned judge awarded the maximum amount under section 8.

28.  The learned judge adopted the same guidelines in the recent case of Xie Quyun v Easy Living Property Management Limited [2020] HKDC 1246.  In that case, the injured was wheelchair-bound and would suffer from urinary incontinence for the rest of her life.  Her ambulatory function had been severely restricted. She would be permanently dependent on others for the essential actions of life such as eating, bathing, and the occasional outdoor activities.  The learned judge considered that it was reasonable to allow the maximum award. 

29.  The applicant in this case is in the state of tetraplegia as a result of the Accident.  Medical evidence shows that he is totally dependent on the others in his daily living.  It is the applicant’s evidence that he is now being taken care of by his wife (who has given up her job as a bridal makeup artist) and a domestic helper.  The applicant is now 47 years old, still relatively young and has many years to come. 

30.  Considering the attention and care required by the applicant and his age, I am satisfied that this is an appropriate case to award the maximum amount which, at the time of the Accident, was $462,890. 

Section 9 compensation

31.  According to the List of Earnings filed by the respondent, the applicant received a sum of $26,820 in the month immediately preceding the date of the Accident which should be taken for the purpose of the section 9 assessment. 

32.  Further, a sick leave period of 1,007 days (33.56 months) is endorsed in Form 7.  Thus, the compensation under section 9 is:

$26,820 x 33.56 x 0.8 = $720,063.36.

Section 10A compensation

33.  According to the receipts produced, the medical expenses incurred is HK$58,212.  After applying the statutory daily limit, the sums to be awarded is $55,242.

Disposition

34.  In the circumstances, the compensation payable by the respondent to the applicant is summarized as follows:-

ECO section 7	$1,697,760.00
ECO section 8	$462,890.00
ECO section 10	$720,063.36
ECO section 10A	$55,242.00
Sub-total:	$2,935,955.36
Less: advance payment	($585,056.00)
Net Total:	$2,350,899.36

35.  I make the following order:-

(1) The respondent do pay the applicant HK$2,350,899.36 with interest at half the judgment rate from the date of the Accident (i.e., 5 December 2014) to the date of judgment and thereafter at the judgment rate until full payment.

(2) The respondent do pay the applicant’s costs of this action including all costs reserved with certificate for counsel to be taxed if not agreed.

36.  I thank counsel for his able assistance.