DCEC 1120/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1120 OF 2009

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IN THE MATTER OF AN APPLICATION

BETWEEN

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J U D G M E N T

1.  For alleged injury at work on 5 August 2008, Singh, the Applicant, claims compensation against his alleged employer, Chi Sun, the Respondent, pursuant to the Employees’ Compensation Ordinance, Cap.282.

2.  Answer has been filed by Chi Sun putting both liability and quantum in issue.  Since then, Chi Sun has been absent from the previous court hearings.  So was it from this trial. I saw no reason why Singh should be prevented from proceeding to prove his case.

3.  Singh was born and educated up to Form 3 level in Hong Kong.  He gave evidence in the punti dialect.

Liability

4.  According to Singh, he was employed in late April 2008 by a Mr Chung of Chi Sun.  As everyone in the company did, Singh understood Chung to be their boss.  It was Chung who confirmed his employment and his remuneration package.

5.  Singh started work on 2 May 2008.  Chung gave instruction and assigned work to the employees.  Singh had to wear the company uniform during work.  He drove a 16-tonne lorry provided by the company.  His work included loading the lorry with goods and driving the lorry to the container terminal.  There the goods would be unloaded at various warehouses.  The goods varied in types which included fabric in rolls and electronic parts in cartons.

6.  On the day in question, Singh reported duty at 8 am.  He changed into the company uniform, helped loading the goods and drove the same 16-tonne lorry to Terminal No.4, Kwai Chung.  Some goods were unloaded at a warehouse and his colleague stayed behind to follow up with that delivery.  In view of the tight work schedule, Singh drove on to deliver the rest of the goods on board to another warehouse at the terminal.

7.  Upon arrival, Singh discovered that the parking space next to the working platform of the warehouse for unloading had already been occupied by some lorries.  He could not lower the sideboard of his lorry onto the working platform.  Singh could not wait for the space to clear up.  Therefore he decided to begin the unloading on his own.  The cartons were unloaded onto the ground and lifted onto the working platform of about 1.4 metres high.  In the course of climbing up to the platform, Singh felt severe pain at his back.

8.  Singh took a short break and informed Chung on the telephone of his suspected sprained back. Chung instructed him to finish the work, drive back the lorry and then see the doctor.  Singh returned to the company at about 1 pm.  He then went to the Adventist Hospital in Tsuen Wan where X-ray was taken.  He was advised to be admitted to the hospital.  Due to his own insurance coverage, he had himself admitted to the Baptist Hospital for treatment.

9.  Among the documents are the Form 2 filed by Chi Sun as Singh’s employer after the accident.  As a result of the accident, Chi Sun has been charged with failing to take out employees’ insurance for Singh, contrary to section 40 of the Ordinance.  The Labour Department reported that Chi Sun was convicted on its own guilty plea and fined on 11 February 2010 at Tsuen Wan Magistracy (Case No. TWS 84/2010).

10.  In view of the above evidence which I accept, I find the accident is proved.  I also have no doubt that at the material time, Chi Sun was the employer of Singh.

11.  In its Answers, Chi Sun alleges that it was unnecessary for Singh to carry out his work the way he described at the time.  It is alleged that Singh should have waited for the parking space next to the working platform to clear up.  First, as Singh explained, it was Chung who imposed a tight working schedule for him that morning.  Second, even assuming that Singh somehow carried out his work contrary to his instruction and thus causing the accident, this would not have taken Singh or the accident outside the course of his employment for the purpose of the Ordinance: see section 5(4)(b).

12.  The inevitable conclusion is that the accident arose in and out of Singh’s employment with Chi Sun.  Liability is proved.

Quantum

Injuries and treatment

13.  In simple terms, Singh suffered from soft tissue injury to his back.  Singh also complained about spontaneous onset of neck pain during his hospitalisation.  MRI scan suggested mild lumbar spondylosis.  He was given conservative treatment including medication and physiotherapy in the hospital.  After 10 days of hospitalisation, he was discharged.

14.  After discharge, Singh continued to receive physiotherapy and occupational therapy from the government hospital and private medical centre.  He has also attended the orthopaedic clinic.  Subsequent X-ray also revealed mild degenerative changes.  Singh has been given sick leave intermittently since the accident.  His sick leave expired in June 2009.

Forms 7 and 9

15.  Singh was examined by the Employees Compensation (Ordinary Assessment) Board (“MAB”) in July 2009.  According to Form 7 dated 4 August 2009, for his “back injury resulting in neck and back pain”, Singh was assessed to have suffered 1% permanent loss of earning capacity.  Upon review, the MAB issued Form 9 on 22 December 2009 confirming the previous assessment.

16.  Against the MAB’s assessment, Singh lodged an appeal under section 18 of the Ordinance.

Orthopaedic expert evidence

17.  In support, Singh relies on the orthopaedic expert report of Dr Johnson Lam dated 11 May 2010. The doctor examined Singh earlier on in that month.

18.  Singh complained to the doctor about intermittent low back pain more towards the right side.  The pain increased with prolonged standing, walking and sitting.  He also complained about intermittent neck pain.  Singh revealed that he had a previous accident of falling from the goods compartment of a lorry in 2004.  His buttock was injured; but after a month’s rest, he managed to return to work as a driver-cum-transportation worker.  No treatment or sick leave had been necessary since then until the accident in May 2008.

19.  Dr Lam confirmed the diagnosis of soft tissue injury to the back.  In his opinion, this was most likely caused by the accident in May 2008.  Considering the mechanism of injury and the subsequent clinical course, the doctor saw no direct causal link between the accident and the neck pain and the right upper limb weakness or discomfort.

20.  Dr Lam agreed that the treatment received was appropriate.  Singh’s back had reached maximal medical improvement.  A minor soft tissue or muscle sprain is likely to recover in a relatively short period of time, say 6 weeks to 3 months.  In Singh’s case, the whole clinical picture suggested a significant soft tissue injury to the back. The doctor considered that the sick leave period certified by the MAB should be endorsed.

21.  Dr Lam also opined that the degenerative changes like disc desiccation and spondylosis  revealed by the MRI and X-ray were likely to be pre-existing.  Notwithstanding the injury sustained in the previous accident in 2004, the pre-existing degenerative changes had been quite asymptomatic so that he had managed to return to work of heavy physical demand.  But for the accident, it was likely that Singh should be able to continue to enjoy rather painless and satisfactory function in his back.  Therefore it was likely that the considerable soft tissue injury to his low back as a result of the present accident has aggravated the back condition and triggered the persistent low back pain.  The accident had an important causal role in his present impairment and disability.

22.  Dr Lam found local tenderness and muscle guarding but no muscle spasm or neurological deficit. One of the Waddell’s Tests performed was mildly positive; the others being negative.  The doctor opined that Singh did have genuine residual pain in his low back.  The degree of residual low back pain should be mild to moderate.  Singh was considered, as he also told the doctor, to be independent in the activities of daily living.  He was encouraged to return to swimming and other strengthening exercises.  However, activities that would cause increased physical demand on the low back, such as repeated or prolonged bending and frequent lifting of heavy weight, would likely cause discomfort and even pain.

23.  The expert report recorded Singh’s description of the nature and physical demand of his pre-accident job as a driver-cum-transportation worker.  He had to work for more than 10 hours a day for 6 days a week.  There was more transportation work than driving.  The objects that he had to lift could be up to 40-50 kg. Average load was about 17-18 kg.  Singh gave similar evidence during the trial.

24.  In view of such physical demand, Dr Lam opined that with strengthening exercise, Singh should be able to return to his pre-accident work with reduced capacity.  He would need to take more frequent breaks and to stretch his body during work.  He was advised to lift weight slowly and carefully.  Heavy weight lifting without help should be avoided.  As an alternative, Singh should be able to work in jobs requiring light physical demand on the back such as a salesperson or watchman.

25.  Dr Lam assessed Singh’s permanent loss of earning capacity which was 5%.  However, this was partly contributed to by his pre-existing condition.  After discount, the doctor assessed the loss caused by the accident to be 4%.

The section 18 appeal

26.  In court, Singh admitted that during the period between early September and October 2008, he returned to work for Chi Sun for 8 to 10 days.  He was arranged to work at the office.  After the sick leave expired in June 2009, he managed to secure some casual driving work introduced by friends for 8 to 10 days.  He was not required to move goods.  For a certain period of time in 2009, his family lived on public assistance.  In this March or April, he has worked as a caretaker for about 8 days.  He found that job to be unsuitable to him partly because of the long hours of standing required.  Since this October, he has been working as a lorry driver.  He manages as he is also not required to move goods.  But he said he would take break and stretch his body after driving for an hour.  His salary is HK$8,000 which is substantially lower than that from his pre-accident job.

27.  Singh is quite capable of driving lorries as before.  The major compromise of his working capacity lies in his ability to handle manual transportation of heavy weight at the same time.  Dr Lam had that factored in when assessing Singh’s loss of earning capacity.  I also accept Singh’s evidence in this respect.

28.  Mr Chung for Singh asked me to accept the percentage loss assessed by Dr Lam.  Strictly, evidence of quantitative assessment of loss of earning capacity is inadmissible. However, to be fair to the doctor, he made clear that the percentage was nevertheless stated for parties’ reference.  I do not doubt that the doctor was trying to assist the court.  I attach due weight to the doctor’s assessment and find 4% permanent loss of earning capacity to be a fair assessment.  I allow the section 18 appeal accordingly.

Pre-accident income

29.  Singh’s monthly salary was HK$12,000. According to him, Chung indicated to him in July 2008 that his salary would be adjusted to HK$13,000 but there would be no double pay and Singh would have to make his own MPF arrangement.  The fact was that he was paid HK$12,000 for May, June and July 2008.  Chi Sun reported the same in its Form 2.

30.  The accident happened on 5 August 2008.  Pursuant to section 11(1) of the Ordinance, the income for the purpose of assessment of the compensation should be the income for the month immediately preceding the accident or alternatively the average monthly income for the 12 months or any lesser period immediately preceding the accident, whichever is more favourable to the employee.  In the present case, either case would be HK$12,000.  Whether Singh might have received a raised salary during the month when the accident happened does not materially affect that.

Section 9 compensation

31.  In view of Singh’s age at the time of the accident, the section 9 compensation should be HK$12,000 x 96 x 4% = HK$46,080.

Section 10 compensation

32.  Singh has been given intermittent sick leave for a total of 211 days.  In court, he confirmed that on 2 of those days in October 2008, he actually returned to work.  Hence the total sick leave period lasted for 209 days.  Mr Chung calculated the section 10 compensation to be HK$12,000 x 4/5 x 209/365 x 12 = HK$65,963.83.  I accept that.

Section 10A compensation

33.  Singh produced receipts to evidence his medical expenses in excess of HK$58,000.  In view of the statutory maximum under the 3^rd Schedule to the Ordinance, the amount claimed is adjusted to HK$4,670.  I allow the amount claimed.

Summary

34.  In summary, the compensation is as follows:

Section 9 compensation	HK$ 46,080.00
Section 10 compensation	HK$ 65,963.83
Section 10A compensation	HK$ 4,670.00
Total:	HK$116,713.83

35.  The above amount carries interest at half judgment rate (4%) from the date of accident until today.

Order

36.  Judgment is entered against Chi Sun in the sum of HK$116,713.83 with interest as aforesaid. Interest from today until full payment shall run at the judgment rate.  Chi Sun shall pay Singh’s costs of this Application, including any costs reserved. Costs shall be taxed, if not agreed.  Singh’s own costs shall be taxed in accordance with the legal aid regulations.