CHAN KI HO v. 陳國强以中南倉公司之名經營

DCEC 698/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 698 OF 2006

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ASSESSMENT OF COMPENSATION

1.  The Applicant was a lorry attendant employed by the Respondent.  On 26 January 2005, he was sent to deliver some heavy rolls of fabric to a factory.  In the course of adjusting a roll of fabric just loaded onto the high shelf of the factory, the Applicant twisted his knee.  The Applicant now claims compensation pursuant to the Employees’ Compensation Ordinance, Cap.282.  The Respondent has not appeared despite all means of service allowed by the court having been exhausted by the Applicant.  On 31 August 2007, judgment on liability was entered for compensation to be assessed.

2.  The Respondent is absent today.  The affirmation of service filed on behalf of the Applicant confirms that the judgment, notice of hearing and the documents for these proceedings have been served.  I know of no circumstance which should prevent the Applicant from proceeding with the assessment hearing.

INJURIES AND TREATMENT

3.  The Applicant has received treatment in the government hospital.  He was found to have suffered from spontaneously reduced right patellar dislocation.  The X-ray confirmed this and revealed a small bone fragment at the inferior patellar pole.  Few days later, he was operated on with arthroscopy and removal of the fragment.  He was put on a long leg plaster cast and was given physiotherapy.  He was discharged after about a week.  Outpatient treatment and physiotherapy followed.  He had a second operation with arthroscopy and lateral retinaculum release for his post-traumatic stiffness.

LOSS OF EARNING CAPACITY

4.  Leave has been given to the Applicant to adduce the orthopaedic expert opinion of Dr James Kong without his being called to testify.  In his report dated 24 October 2007, Dr Kong confirmed the diagnosis of right knee patellar dislocation with osteochondral fragment.  Dr Kong opined that the treatment received by the Applicant was appropriate and that he has reached the stage of maximal medical improvement. The residual stiffness, weakness and pain would likely persist.  This would result in a mild degree of permanent disability.

5.  Dr Kong believed the Applicant should be able to resume his pre-accident occupation.  He would experience difficulty in prolonged sitting.  The limitation in his right knee flexion would also limit his ability to squat which his pre-accident work would require.  All these account for a reasonable amount of reduction in his work capacity and efficiency.  For the purpose of these proceedings, Dr Kong opined that such loss of earning capacity is 6%.

6.  Such assessment differs from that of the Employees’ Compensation Assessment Board.  For the right knee injury resulting in pain, wasting and stiffness, the Board issued a Form 7 recording a 5% loss of earning capacity in this case.  Relying on the opinion of Dr Kong, the Applicant appeals against the Board’s assessment pursuant to section 18 of the Ordinance.

7.  Small as the difference may seem, fair and acceptable I find Dr Kong’s undisputed opinion to be.  I would allow the appeal.  The loss of earning capacity for the purpose of assessment would be 6%.

SECTION 9 COMPENSATION

8.  The Applicant claims his pre-accident monthly income immediately prior to the accident was HK$6,000.  There is no relevant documentary evidence in support.  This is not too surprising as the accident happened in the very month when he started to work for the Respondent.  But he maintained this in his statement which he also adopted in court.  I accept his unchallenged evidence.

9.  The Applicant was born on 16 August 1980 and was 24 years old at the time of the accident.  The applicable multiplier (under section 7 of the Ordinance) is 96.

10.  The section 9 compensation should be HK$6,000 x 96 x 6% = HK$34,560.

SECTION 10 COMPENSATION

11.  The sick leave period is evidenced by the record in Form 7 and the certificates produced.  Though not necessary for the purpose of these proceedings, Dr Kong commented that the sick leave period was reasonable.  I accept that the period lasted for 413 days.  The section 10 compensation should be HK$6,000 x 4/5 x 413/30 = HK$66,080.

12.  The Applicant stated that he has received from the Respondent a total of HK$9,100 being periodical payments for January and February 2005.  Credit should be given to such amount and therefore the compensation should be reduced to HK$56,980.

SECTION 10A COMPENSATION

13.  The Applicant stated his medical expenses were in excess of HK$2,100.  The medical receipts evidence only HK$1,980.  He stated that he has received from the Respondent HK$700 for medical expenses.  Accordingly I award HK$1,280 under section 10A.

AWARD

14.  The award is summarised as follows:

Section 9 compensation	HK	$34,560
Section 10 compensation	HK	$56,980
Section 10A compensation	HK	$1,280
Total:	HK	$92,820

ORDER

15.  I order that the Respondent shall pay to the Applicant compensation in the sum of HK$92,820 with interest thereon at half judgment rate from the date of accident to today and thereafter at the judgment rate until payment.  The Applicant shall have costs of this assessment including any costs reserved to be taxed if not agreed.  The Applicant’s own costs shall be subject to legal aid taxation.