NG CHI LUN v. EASY POINT LOGISTICS LTD

DCEC 1053/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION NO. 1053 OF 2010

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ASSESSMENT OF COMPENSATION

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1.  The applicant (“Ng”) was a goods vehicle driver under the employ of the respondent (“EPL”) when he was seriously injured in a traffic accident in the course of his employment on 8 September 2008. Ng now claims compensation against EPL pursuant to the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

2.  EPL was wound up voluntarily by resolution of the company on 21 January 2011.  Leave was obtained from the court (HCMP 547/2011) to continue these proceedings.

3.  Judgment on liability was entered against EPL on 29 April 2011.

4.  I was informed that all the documents including the notice of hearing today have been sent to the solicitors acting for the joint and several liquidators of EPL.  I saw no reason preventing Ng from proving his case.

INJURIES AND DISABILITY

5.  After the accident, Ng was trapped in the damaged vehicle and had to be extricated by the firemen.  He lost consciousness at one point.  Upon examination at the hospital, it was found that Ng’s right leg was shortened and deformed.  There were swelling, tenderness and laceration.  X-rays confirmed fractures to the right leg, ankle, foot and toes (femur, tibia, fibula, navicular, cuboid, middle and lateral cuneiform, 3^rd and 4^th metatarsals). He was transferred to the orthopaedic department.

6.  Ng has undergone 7 surgical operations on his right femur, tibia, fibula and the right foot as well as skin grafting of the wounds.  He was discharged from the hospital some 5 weeks later on 15 October 2008; and was advised to walk without weight bearing on his right lower limb.

7.  Intensive physiotherapy and occupational therapy followed.  Ng also tried bone-setting treatment.

8.  Due to pin tract infection of the external fixator of the right foot, Ng was re-admitted in February 2009 for the removal of the fixator.  Another operation was performed in January 2010 to remove the nails in the right femur.

9.  During the third quarter of 2010, Ng has been admitted to the hospital for arthroscopy, posterior release and tendon re-construction of the right ankle.

10.  Sick leave has been given since the accident up to 24 May 2011, a total of 32.6 months.  Outpatient treatment still continues as of now.

11.  Form 7 was issued on 30 December 2011.  For his right leg injury resulting in (i) right femur fracture; (ii) right tibia fracture; and (iii) right foot fracture, the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed Ng has suffered 19% loss of earning capacity.  After re-assessment, the Board, in Form 9 dated 2 May 2012, adjusted the percentage to 20%.

12.  By notice dated 14 May 2012, Ng appealed against the above assessment.

MEDICAL EXPERT EVIDENCE

13.  Ng still complains about pain, weakness, numbness and stiffness in his right leg, knee and ankle.  He walks with a limp and could not walk or stand for prolonged periods.  The right ankle is still swollen and painful.  He could not extend his toes.  He feels the right foot has shrunk due to wastage.  He has pain when walking on stairs.  He could not squat, climb up or down, or handle heavy weight.  The pain would be aggravated during weather changes.  He experiences loss of sleep and would be woken up by the pain in the leg and ankle.

14.  Ng was examined by orthopaedic expert Dr Pun Kam Wa on 8 August 2012.  In his report dated 5 September 2012, Dr Pun had the following observation:

(1)  Ng walked with a limp on his right leg and had to wear a shoe orthosis.

(2)  His right foot and ankle was swollen, stiff and painful.

(3)  He had right knee pain when bearing weight on the right leg.

(4)  Muscle wasting of the right thigh and calk was noted.

(5)  He would still experience significant difficulty in standing, walking and squatting due to the right ankle deformity, which would be non-correctable.

(6)  He would continue to walk with a limp and pain; and would not manage climbing slope or walking up and down stairs.

(7)  Sick leave from 8 September 2008 to 24 May 2011 was considered to be reasonable.

(8)  His right lower limb complex conditions were still evolving and changing despite the union of the fractures.  He definitely required further orthopaedic treatment (physiotherapy, occupational therapy and even surgical intervention).  In that sense, Ng has yet to achieve maximum medical improvement.

(9)  On the other hand, if he declines further surgical intervention and non-surgical treatment would not help further, Ng would be treated as having achieved maximum medical improvement.  Hence his considered being fit for assessment of loss of earning capacity.

(10)  Ng has suffered 23% permanent impairment of the whole person.

(11) Ng could no longer engage himself in any laborious occupations.  Nor could he cope with driving a vehicle again; and therefore resume his pre-accident job.  He may be able to accomplish light duty all in sitting posture.  Employment difficulty is thus expected.

SECTION 9(1A) OF THE ECO

15.  In terms of percentage, Dr Pun’s assessment did not differ substantially from that of the Board.  But his opinion, together with Ng’s complaint, forms the basis for Miss Loh’s submission that this is a case fit for application of section 9(1A) of the ECO.

16.  Ng testified.  According to him, he started work since completion of Form 5 education; and has not received any form of occupational training.  He had worked in fast food restaurant and as courier.  He had been a transportation driver since the age of 21.  By the time of the accident, he had worked for EPL for 9 months.

17.  Ng explained that his pre-accident job involved both driving the 16 tonne goods vehicle and moving goods.  Climbing and squatting in the course of work were inevitable.  He is now incapable of meeting the physical and coordination demand in managing such kind of goods vehicle.  He experienced phobia now sitting in the driver’s seat.  The fact is he has not driven at all since the accident.  The goods that Ng used to move varied from furniture to tiles which could be as heavy as 45 kg.

18.  Ng was paid a daily wage of HK$450 for work on 26 days a month.  There was also overtime payment at the hourly rate of HK$50; and on average HK$600-1,000 per month.  This was about the rate of pre-accident income stated in the application for compensation.  However he explained that he has failed to add the other substantial part of his monthly income from the job, which consisted of the extra payments received from customers of his employer.

19.  Ng stated and elaborated in court that EPL expected him and his lorry attendant to move the goods for the customers upon delivery, if necessary.  The customers would pay them extra charges, which were either negotiated by EPL beforehand or on the spot between them and the customers.  In any event, the extra charges would be kept by and split between Ng and his lorry attendant at the end of each work day.  Sometimes, there were also tips received from the customers. On average, Ng and his lorry attendant were able to receive HK$300-400 each out of the extra work for the customers every day.

20.  All together, Ng earned on average HK$21,000-22,000 per month.

21.  Ng’s lorry attendant at the time, Li Hon Wang, testified and corroborated Ng’s evidence.

22.  Ng added that he had attempted to find alternative jobs such as cashier and security guard.  Yet he was not preferred for both.  In particular, he was dissuaded because of his inability to tolerate prolonged standing and walking. For reference, the government statistics in the evidence show that light duties such as cashier would have produced a monthly income of about HK$7,000 at the time of the accident.

23.  Section 9(1A) of the ECO provides that:

“Where-

(a) permanent partial incapacity results from an injury or a combination of injuries (whether or not specified in the First Schedule); and

(b) the percentage of the loss of earning capacity specified or assessed in relation to that injury or combination of injuries in accordance with subsection (1) would be substantially less than the percentage of the loss of earning capacity permanently caused by the injury or injuries in the special circumstances of the employee, including, without limiting the generality of the foregoing-

(i) the nature of injury or injuries in relation to his former usual employment; and

(ii) his qualifications, previous training and experience,

the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury or injuries in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time.”

24.  Miss Loh submitted that the strenuous nature of Ng’s pre-accident job, the substantial disabilities that Ng now suffers and the substantial loss of earnings constitute special circumstances justifying the application of the special formula in assessing the real percentage loss of earning capacity.  I agree.

25.  The special formula was laid down in Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HKLR 556 and modified in Lui Kwong Yan v Shui Hing Decoration Works & Anor [1993] 1 HKLR 168.

26.  Applying the special formula, the percentage loss of earning capacity suffered by Ng, as submitted by Miss Loh, would be $(22,000 – 7,000/22,000) x 100% = 68%.  I accept that as the percentage loss for the purpose of the present assessment.

27.  Accordingly I allow the section 18 appeal.

SECTION 9 COMPENSATION

28.  Ng was born in 1984 and aged 24 at the time of the accident.  Compensation under section 9 of the ECO is therefore HK$22,000 x 96 x 68% = HK$1,436,160.

SECTION 10 COMPENSATION

29.  Section 10(6) provides that in fixing the amount of the periodical payment, the court shall have regard to any payment, allowance or benefit which the employee may receive from the employer during the incapacity.  It may be said that those extra payments that Ng negotiated with and received from the customers other than through EPL beforehand were hardly EPL’s liability to pay.

30.  However, whether it was gratuitous or extra payments negotiated with and received from the customers, EPL as the employer permitted and in fact expected Ng and his lorry attendant to earn them as part of their daily income.  Like tips from customers, all were remunerations received in the course of the employment with EPL.  I venture to think that had an accident happened in the course of moving the articles at the destinations by Ng or the lorry attendant at the request of the customers, such accident would still have arisen in and out of their course of employment with EPL.

31.  This is the compensation for the temporary incapacity of Ng, which would essentially be over the sick leave period.  As mentioned, 32.6 months of sick leave has been given, which the medical expert considered to be reasonable.

32.  Ng has received periodical payments in the total sum of HK$219,520.  That should be deducted from the section 10 compensation. The compensation is therefore HK$(22,000 x 32.6 months x 4/5) – HK$219,520 = HK$354,240.

SECTION 10A COMPENSATION

33.  Medical expenses have been spent in the total sum of HK$9,768.60.  They are evidenced by documents.

SUMMARY

34.  In summary:

ORDER

35.  EPL shall pay compensation as assessed above with interest thereon at half judgment rate from the date of accident up to today.  Interest from today until full payment runs at the judgment rate.

36.  There has already been a costs order against EPL on liability upon the judgment for compensation to be assessed.  I now order that EPL shall also pay the costs of Ng in these proceedings, including any costs reserved.  Costs shall be taxed, if not agreed, and for the avoidance of doubt, with certificate for counsel.  Ng’s own costs shall be taxed in accordance with the legal aid regulations.