WONG WAI MAN v. CONCORD EXPRESS (HONG KONG) LTD

DCEC 658/2019

[2021] HKDC 196

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION ACTION NO. 658 OF 2019

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BETWEEN

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JUDGMENT

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BACKGROUND

1.  This is an employees’ compensation claim arising out of an accident which happened on 7 April 2016 made pursuant to the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”).  Interlocutory Judgment on liability had been entered in favour of the applicant on 3 April 2020, leaving the amount of compensation to be assessed. 

2.  The trial hearing was conducted for the assessment of the amount of compensation.

3.  The respondent has never appeared in these proceedings, and has not attended the trial.  As I was satisfied that the respondent had been served with a “Notice of Trial” dated 18 September 2020 and as a result of which it should be taken to have knowledge about the trial, the trial was proceeded with in the respondent’s absence.

SECTION 9 COMPENSATION

The accident

4.  The applicant was employed by the respondent as a cross-border driver.  On 7 April 2016, he was instructed to drive a lorry from Shatin to the PRC.  At the material time, he was about to clear customs at Huanggang Port, Shenzhen.  Whilst he was getting off from the driver seat of the lorry, he lost his balance and fell onto the ground.  He sustained injury to his right ankle as a result. 

Medical treatment and examination

5.  The applicant did not seek medical assistance immediately, but only received treatment at a bone-setter on 9 April 2016. According to the bone-setter’s report dated 20 September 2016:

“病人首日到診時經本人檢查後發現有輕微脱骹、有紅腫、無瘀傷無骨擦嚮。首日已復位可輕微轉動可行走、仍有微痛 ，三日後再次到診無紅腫、無瘀傷、只有扭傷後輕微餘痛。故本人檢查後是因扭傷軟組織所致。”

6.  The diagnosis at the time was “右腳踭軟組織扭傷及踭位有輕微脱骹”.

7.  On 27 May 2016, the applicant attended Yan Oi General Outpatient Clinic.  The medical report of Dr Chu recorded that:

“…On physical examination, he could walk unaided with a normal gait. His right ankle was non tender with good range of movement. There was mild swelling over the lateral ligament and pain on extreme plantar flexion of his right ankle. He was treated with analgesics. He was referred to physiotherapy…”

8.  In the Physiotherapy Report dated 23 May 2018, the clinical findings on 3 June 2016 and 22 June 2016 respectively were recorded. The findings on those 2 days were nearly identical: subjectively, the applicant complained that the pain over his right ankle would be aggravated by right ankle plantar flexion; he was fear of driving and the Numerical Global Rate of Change Scale was 7 out of 10.  Objectively, there was tenderness[1]  over his right anterior talofibular ligament, posterior talofibular ligament, calcaneofibular ligament and deltoid ligament; he had full range of motion in his right ankle; he had normal muscle strength, save that the strength of plantar-flexion was of Grade 5-; the applicant could perform single leg standing, squatting and tip-toeing without any abnormality.  The only difference in the findings on the said 2 days was that while the applicant only had pain over his right ankle with 3 out of 10 as charted by Numerical Pain Rating Scale on 3 June 2016, such pain was described as 6 out of 10 on 22 June 2016 by the applicant.

9.  He was then referred to the Department of Orthopaedics & Traumatology of Tuen Mun Hospital by the Department of Family Medicine & Primary Health Care of Yan Oi General Outpatient Clinic. In the referral letter issued on 10 June 2016, it was stated that the applicant’s pain and swelling had improved, but he still had residual mechanical pain over his ankle.  It was further recorded that: “R ankle no swelling, non-tender, ROM good, pain on extreme plantar flexion”.

10.  On 6 August 2018, the applicant had MRI in the PRC. It was stated in the MRI report that there was right ankle effusion and swelling of soft tissue around the ankle.  In relation to the applicant’s ligaments, the MRI Report stated:

“考慮右踝關節脛距前後韌帶、距腓前後韌帶、跟腓韌帶、跟舟韌帶、跟距骨間韌帶損傷，請結合臨床”

11.  When the applicant was assessed by his expert, Dr Peter Tio, on 31 March 2020, he stated that he still had residual right ankle discomfort.  He complained of unnatural feeling over his right ankle especially when he walked for over 45 minutes and when he was pushing heavy loads.  He also noticed some stiffness when he plantarflexed his ankle with a sense of tightness.  He felt tired when he drove for over 2 hours and had to take a break.  He also complained of residual swelling.  He had “a sense of leg length discrepancy when he had to climb on stairs”[2].  In the physical examination, it was found that there was only minimal degree of lateral ankle soft tissue swelling with full range of motion in all directions and no ligamentous laxity.  There was no muscle wasting.  Updated x-rays showed satisfactory alignment.  The overall recovery was found to be satisfactory. 

Permanent loss of earning capacity

12.  In the Form 7 dated 19 June 2018, the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed that the applicant has suffered no loss of earning capacity at all.  The injury was stated as “right ankle injury”. 

13.  The percentage of loss was revised to 0.1% upon the applicant’s review, as evident in the Form 9 dated 24 September 2018, which described the applicant’s injury as “right ankle injury resulting in right heel discomfort”.

14.  By virtue of the Application filed on 22 March 2019, the applicant has made an appeal against the assessment in the said Form 9 pursuant to section 18 of the Ordinance.

15.  It is trite that an appeal under section 18 of the Ordinance in fact is not an appeal proper, because the Board did not give any reasons for its assessment and the court hearing the appeal has to form its own view by reference to all the evidence, and in particular the medical evidence, in arriving at its own conclusion as to the permanent loss of earning capacity and the period of temporary total incapacity resulting from the injury.  In Chan Kit v Sam Wo Industrial Manufactory[3], Hunter JA, who gave the judgment of the Court of Appeal, said:-

“… the court’s jurisdiction appears to be appellate. But one has then to remember that these Boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons. So that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded; it is plain that a Court approaching this matter has really got to start afresh.”

16.  The paragraph quoted above had been referred to by the Court of Appeal in Tsang Kwong Tong v Tennille Decoration & Design Limited & Others (CACV 42/2006, unreported, 10 October 2006), in which Tang JA (as his Lordship then was) added:

“Where no reasons are given by the Board, as is usually the case, the court hearing an appeal under section 18 ought not to speculate and ‘can only judge an assessment by testing the validity of its conclusions against the total available evidence’ (Chan Kam v. Standard Chartered Bank Hong Kong Trustee Ltd., supra. at 458)” (at paragraph 47).

17.  In Chu Chin Yiau v Ray On Construction Co Ltd [4], Deputy District Judge Bharwaney (as his Lordship then was), also said:

“In fact, whether an appeal is lodged pursuant to s 18(1) or application made for compensation under s 9 or, indeed, both procedures resorted to at the same time, it is clear that a court approaching the matter has to start afresh, relying not only on the certificate of the 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 (Chan Kit v Sum Wo Industrial Manufactory [l989] 2 HKLR 230 at 233 and Yip Fong Ming v Joint-Effort Engineering Co & Anor (ECC 128/88, 17 May 1989 p 3, unreported)).”

18.  With the above in mind, I now consider the evidence adduced in this claim.

19.  I have already quoted various parts of the medical reports above, and I need not repeat them here.  As far as the applicant’s earning capacity and prognosis are concerned, Dr Tio opined that:

“For his current condition, he should be able to resume his duty as a lorry cum delivery worker with reduced capacity and efficiency when he has to do heavy manual work or when he has to drive for a long period of time. He may need intermittent breaks of 15 minutes after each 1.5 hours’ work.”[5]

20.  Under the section of “Assessment”, Dr Tio further opined that:

“For the parties’ reference, the degree of whole person impairment and LOEC is considered to be 5%.” [6]

21.  On 21 August 2020, Her Honour Judge Levy directed the applicant to obtain a supplementary expert report from Dr Tio, in which the expert was expected to explain the difference between his assessment and the assessment of the Board.

22.  In his Supplemental Report dated 9 September 2020, Dr Tio stated that:

“In the assessment of the degree of WPI and LOEC, Dr Tio considered the following points:

1. The severity of the accident: Mr. Wong got off from a height of 4 feet above the ground and sprained his right foot/ankle.  The mechanism of the injury was considered to be a moderately severe degree of injury.

2. The result of the MRI which showed multiple ligaments injuries of his right ankle namely the right ankle anterior/posterior talo-fibular ligaments and calcaneofibular ligaments. It is worth to be noted that there were only 3 ligaments in the lateral ankle which should be the anterior talo-fibular, the posterior talo-fibular and the calcaneofibular ligaments.  The MRI findings suggested that all 3 ligaments were injured.

3. The residual degree of symptoms and signs as documented in the original medical report with residual discomfort over his right ankle.

4. The pre-injury job nature as a manual worker who has to operate a lorry and to do delivery job.

5. With the above considerations, Dr Tio opines that the PD granted by the MAB Board of 0.1% did not reflect the severity of the injury.  Dr. Tio suggested the degree of LOEC and PD should be 5% instead.”

23.  In my view, the court should put more of its focus on the effect of the injury on the body condition of the applicant rather than on the severity of the injury itself, because at the end of the day, the question which this court has to consider is his permanent loss of earning capacity, which is affected by the recovery progress of the applicant.  It is the applicant’s body condition upon his reaching maximal medical improvement which is of crucial importance.

24.  Hence, I am of the view that, out of the first four points which Dr Tio made when he explained why his assessment was different from that arrived at by the Board, more emphasis should be laid on the 3^rd and 4^th points (i.e. the “residual degree of symptoms and signs” and the “pre-injury job nature”).

25.  In the present case, according to Dr Tio, all that the applicant was complaining at the time of the interview on 31 March 2020 was “discomfort”.  Even if the applicant had to push heavy loads, he only had “unnatural feeling”.  The applicant also stated that there was some stiffness when he plantarflexed his ankle with a sense of tightness.   

26.  Objectively, there was only minimal degree of lateral ankle soft tissue swelling with full range of motion in all directions and no ligamentous laxity.  There was no muscle wasting.  The latest x-rays also showed that there was satisfactory alignment.

27.  It was on the above basis that the applicant’s overall recovery was found by Dr Tio to be satisfactory.

28.  In his witness statement which was made on 15 April 2020, the applicant was totally silent as to his present condition.  He did not mention that he was still affected by the injury at all.

29.  Therefore, from the above evidence, there is nothing which shows that the applicant’s earning capacity had been reduced at all.

30.  The only basis which the applicant’s earning capacity may be said to be affected is Dr Tio’s opinion that the applicant can now work as a lorry driver cum delivery worker with a reduced capacity and efficiency “especially when he has to do heavy manual work or when he has to drive for a long period of time”.  It was said that the applicant may need intermittent breaks of 15 minutes after each 1.5 hours’ work. 

31.  At the trial, upon this court’s enquiry, the applicant had given the following further information to the court:

(1) The breakdown of his average driving time for each journey from Hong Kong to the Mainland is as follows:

(i) From his home to the place where goods were loaded: 1 hour

(ii) From the loading place to the Hong Kong border: 1 hour

(iii) From the Hong Kong border to the Mainland border: Up to 1.5 hour

(iv) From the Mainland border to the factory within Shenzhen area: within 1.5 hour

(v) From the Mainland border to the factory in Jiangmen: 2.5 hours

(vi) From the Mainland border to the factory in Zhuhai: 3 hr;

(2) The time taken for a reverse journey would be more or less the same;

(3) He would feel tired if he drove for 2.5 hours to Jiangmen even before the accident;

(4) Before the accident, he had not taken any break during his journeys unless he had to answer call of nature because time was tight;

(5) He might have taken a toilet break during 1 out of 10 journeys, and each time for around 10 minutes or so;

(6) He had taken such few toilet breaks in the past not because he did not dare to do so, but it was just because he did not need to;

(7) If there was any need to take a toilet break, he would go ahead to do so anyway.

32.  The applicant told Dr Tio that he felt tired if he had driven for over 2 hours and had to take a break.  However, it can be seen from the applicant’s evidence as summarised above that:

(1) it was only when he was required to drive to a destination which was out of the Shenzhen area that he had to drive for more than 1.5 hours continuously;

(2) even before the accident, he had felt tired after driving for 2.5 hours.  There was not much difference in the applicant’s condition before and after the accident.

33.  With just “discomfort” and “unnatural feeling” on the part of the applicant, I do not accept Dr Tio’s opinion that the applicant would need 15 minutes’ break after working for 1.5 hours.  Even if the applicant really needs such a break, I cannot see how this could be said to be affecting his earning capacity: as the applicant had told the court, he had, before the accident, taken a break of 10 minutes or so anyway if he needed it. I do not accept that the difference of 5 minutes would make any real difference in terms of earning capacity.

34.  For the above reasons, I dismiss the applicant’s appeal against the Board’s assessment of permanent loss of earning capacity of 0.1%.

35.  I accept that $15,000 should be accepted as the monthly earnings for the purpose of the calculation of section 9 compensation.

36.  The applicant was 44 years old at the time of the accident.  The applicable multiplier is therefore 72.

37.  By reasons of the aforesaid, section 9 compensation is assessed at $1,080 ($15,000 x 0.1% x 72).

Section 10 compensation

38.  The applicant had been granted 24 days’ sick leave, and all of which had been endorsed by the Board.

39.  Section 10 compensation is therefore assessed at $9,600 ($15,000 x 4/5 x 24/30).

Section 10A compensation

40.  The applicant initially claimed that he should be awarded the sum of $4,940 as the amount of section 10A compensation.

41.  However, Ms Chan for the applicant accepted at the trial that the maximum amount of medical expenses which the applicant may recover per day other than as an in-patient in a hospital should be $200 rather than $300, because the relevant date as far as the Third Schedule of the Ordinance is concerned is the date of the accident rather than the date of the trial.  Ms Chan also accepted that a sum of $700 (not even to the extent of $200) for the writing of a medical report charged by a bone-setter should not be recoverable under section 10A of the Ordinance because it is not an expense for “medical treatment” as such.

42.  For the above reasons, section 10A compensation is assessed at $4,260.

TOTAL AMOUNT OF COMPENSATION PAYABLE

43.  The total amount of compensation payable is calculated as follows:

Section 9		$1,080
Section 10		$9,600
Section 10A		$4,260
		$14,940

44.  Interest should be awarded at half of the judgment rate from the date of the accident (7 April 2016) to the date of this judgment, and at judgment rate thereafter until full payment.

COSTS

45.  Having taken into account the applicant’s failed appeal against the Board’s assessment, and the reduced amount of section 10A compensation (Ms Chan’s concession was only made at the trial), I make a cost order nisi that the respondent shall bear 30% of the costs of the applicant (including all costs reserved, if any), to be taxed if not agreed.  The above order nisi shall become absolute in the absence of application to vary within 14 days hereof.