HO YIN YUEN v. CHOW HOP KWAN t/a JAMES & CHOW ENGINEERING CO

DCEC 1375/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1375 OF 2010

---------------------

IN THE MATTER OF AN APPLICATION BETWEEN:

---------------------

------------------------------------------------

ASSESSMENT OF COMPENSATION

------------------------------------------------

1.  This is an application for employees’ compensation under s 9, 10, 10A and 18 of the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

2.  The respondent did not file his Answer and has been absent all along in this action.  Interlocutory judgment on liability was entered on 13 May 2011 leaving compensation to be assessed.

3.  In an accident happened in 2010 when the applicant was aged 23, the applicant sustained left wrist injury resulting in left wrist pain, weakness, scar and stiffness.  The Form 7 issued on 21September 2012 assessed his permanent loss of earning capacity at 2%.  Periods of absence totaled 96 days.  The applicant has filed Notice of Appeal against the Certificate of Assessment on 8October 2012 pursuant to s 18(2) of the ECO.

4.  The Employees Compensation Assistance Fund Board, though not formally joined as a party, has participated in the proceedings at an early stage and appointed its own medical experts to examine the applicant.  According to the two joint medical reports, the applicant was assessed to have suffered the followings:-

	Dr Adnrew Miu, Orthopaedics expert, instructed by the applicant	Dr Chun Siu Yeung, Orthopaedics expert, instructed by the Board	Dr Chow Lok Yee, psychiatric expert, instructed by the applicant	Dr Chung See Yuen, psychiatric expert, instructed by the Board
Permanent loss of earning capacity	6-8%	2%	3% Adjustment disorder with depressed mood	2% Adjustment disorder with depressed mood
Sick leaves	All sick leave given by the treating doctors would be justified – about 410 days	3 months	3 months counted from June 2011	2 months counted from June 2011

5.  As this is a multiple disabilities case (orthopaedic and psychiatric), the question arises as to how the permanent loss of earning capacity arising from each disability should be aggregated.

6.  Ms Wong for the applicant deals with this issue as follows.

7.  At the material times, the applicant was a construction worker earning a daily wage of HK$600 and working 26 days a month on average.  His average monthly wage was about HK$15,600.  He has now resumed work and his current average monthly salary is HK$16,000.  Hence, the familiar Hong Kong Paper Mills formula (from the case Hong Kong Paper Mills Ltd v Chan Hin Wu, [1981] HKCA 174), which assesses the loss of earning capacity by reference to actual drop in income, is not applicable.

8.  Ms Wong submits that a revised formula which takes into account inflation and the sharp increase in salary of construction worker in recent years due to severe shortage should be applied.  The applicant gave evidence that he could have been earning over HK$23,000 a month if he could work as if he had not met with the accident.  If that is true then the applicant’s loss of earning capacity should be assessed at a much higher rate.  Yet, Ms Wong did not argue for such higher rate and is content with aggregating the two figures of disability assessed by the applicant’s experts, which add up to 11%. Similarly, the number of sick leave days is also assessed as the aggregate of those allowed by the two experts of the applicant, ie, 500 days.

9.  The Board did not offer any evidence or arguments to the contrary and has in fact agreed to make compensation roughly along the lines as calculated by Ms Wong.  Accordingly, I shall allow the compensation as follows:-

Section 9	15,600 x 96 x 11%	HK$164,736.00
Section 10	15,600 x 4/5 x 500/30	HK$208,000.00
Section 10A		HK$4,000.00
Total:		HK$376,736.00
Less Advanced Payment		(HK$95,000.00)
Balance:		HK$281,736.00
Plus Interest (4%)	281,736.00 x 4% x 30/12	HK$28,173.60
Total:		HK$309,909.60

10.  I shall also order that the respondent pays the applicant’s costs and that the applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.