LAU TAT WAI v. MA KIM CHUEN PREVIOUSLY t/a HOP TAI CO

DCEC 629/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 629 OF 2012

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IN THE MATTER OF AN APPLICATION BETWEEN:

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JUDGMENT

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INTRODUCTION

1.  This is an application for compensation under sections 9, 9(1A), 10 and 10A of the Employees Compensation Ordinance (“the Ordinance”), Cap 282.  The applicant also appeals under section 18 of the Ordinance against the assessment of loss of earning capacity given in the Certificate of Review of Assessment (Form 9).  

2.  Judgment on liability has already been entered against the Respondent who has failed to appear in any of interlocutory hearings or to file any documents.  Therefore, the trial is about assessment of compensation only.  The respondent also failed to appear and was not represented at the trial.  I was satisfied that the respondent had sufficient notice[1] of the trial and that the trial could proceedwith in his absence: Order 35, Rule 1(2) of the Rules of the District Court. 

BRIEF FACTS

The incident

3.  The applicant was a container truck driver who met with an accident arising out of and in the course of his employment with the respondent on 9 September 2010.  At the time, the applicant was driving a lorry with a container along Tsing Keung Street when the lorry ran over a stretch of rough surface on the road.  The lorry bounced so severely that the applicant was injured and had to be sent to hospital. 

Diagnosis and treatment received

4.  The applicant was first admitted to the Accident & Emergency Department of Tuen Mun Hospital and subsequently transferred to the Princess Margaret Hospital (“PMH”).  The applicant was diagnosed to have acute compression fracture of his spine at T12 and L2 level with marrow edema, retropulsion and spinal stenosis.  Emergency posterior spinal fusion was performed to insert an implant to support the burst fracture at T12 and L2 vertebrae.  The post-operative period was uneventful and the applicant was given bilateral ankle-foot-orthosis and thoracolumbosacral orthosis.  He was transferred to Caritas Medical Centre on 2 October 2010 for rehabilitation. After that, the applicant was regularly followed up at the out-patient clinic of PMH.  It was found that the applicant had persistent neurological deficit around both ankles and feet.  The applicant received another operation on 21 October2011 to remove the surgical implant. 

5.  The applicant was recommended sick leave from 9 September 2010 to 31 January 2012 (550 days) and also from 13 April 2012 and 22 May 2012 (40 days).  Therefore, the total number of sick leave granted was 590 days.

The assessment by Medical Assessment Board

6.  On 28 February 2012, the applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Assessment Board”) to have suffered a 6% permanent loss of earning capacity.  That assessment was later reviewed by the Assessment Board on 22 May 2012 and upwardly adjusted to 25%. 

The applicant’s present complaints

7.  The applicant says that his legs, especially the right one, are weak.  He uses an elbow crutch for walking.  He has persistent pain on both feet and more severely on the right.  He also has pain over the mid-portion of his back which is associated with lying supine, walking for about half an hour and sitting for 3 to 4 hours.

Medical expert evidence

8.  Dr Lau, who acted as the applicant’s orthopaedic expert, conducted a physical examination of the applicant and found that the applicant can sit in the chair for half an hour.  At the time of the examination, the applicant was not wearing a drop foot splint which he said he wore at night.  There was wasting of muscles of the lower limbs and dermatitis of both legs at the lower half of shin and calf.  Both of the applicant’s ankles were stiff with passive dorsiflexion only up to the neutral position. Both of his legs were externally rotated and feet dropped.  The applicant walked with an elbow crutch and could stand for a few minutes without it.

9.  As far as motor power is concerned, Dr Lau’s findings were as follows (from grade 0 meaning complete loss to grade 5 meaning normal power):

	Right	Left
Hip flexion	4+	5-
Hip abduction	4+	5-
Hip adduction	4+	5-
Knee extension	5-	5-
Knee flexion	5-	5-
Ankle dorsiflexion	0	0
Ankle plantarflexion	4	4+
Big toe	0	0

10.  As to the applicant’s physical condition, Dr Lau’s comments included the following:

(a) there is no prospect for further recovery of his neurological problem;

(b) his back injury has reached maximal medical improvement and no further treatment, other than taking analgesic on a need to basis, is indicated;

(c) with the remaining motor function of his lower limbs, the applicant can still have independent ambulation with walking aids (elbow crutch) and splintage (drop foot splint).  However, his walking time and distance are limited.  He needs to avoid stairs and slopes as much as possible;

(d) whilst he cannot walk well due to the weakness of his ankles, he is advised to avoid sitting for a long period of time,

(e) he is required to continue with night splintage of his ankles as well as maintenance exercise to prevent equinus deformity of his ankles;

(f) the poor motor function of his lower limbs is expected to be permanent.  He is dependent in some activities of daily living like putting on or taking off socks and shoes; and

(g) he has suffered from the accident 19% of permanent impairment of the whole person (10% for burst fractures with compression of 25-50% body height and 10% for neurological deficit with impaired ambulation and gait).

THE S18 APPEAL

The relevant legal principles

11.  An appeal under s18 of the Ordinance is not in fact an appeal proper.  This is because the Assessment Board does 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 conclusion as to the permanent loss of earning capacity.  

12.  In Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115, Hunter JA, who gave the judgment of the Court of Appeal, said at 118D-E:

“… the court’s jurisdiction appears to beappellate. But one has then to remember that these boards are acting ontheir own knowledge. They hear no evidence. They keep no record. Theygive no reasons so that they provide no material which explains the basisof their approach. They only produce a result. Although the procedure byway of appeal may be properly so described in order to bring about areversal of their decision if the court is so minded, it is plain that a courtapproaching this matter has really got to start afresh.”

13.  Similarly, Deputy District Judge Bharwaney (as his lordship then was), also said in Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246, at 248G-I:

“In fact, whether an appeal is lodged pursuant to s 18(1)or application made for compensation under s 9 or, indeed, both proceduresresorted to at the same time, it is clear that a court approaching the matterhas to start afresh, relying not only on the certificate of the Board but alsoon any other evidence, especially medical evidence, adduced before it toassess the loss of earning capacity permanently caused by the injurysuffered 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 EngineeringCo & Anor (ECC 128/88, 17 May 1989 p 3, unreported)).”

14.  In considering the medical evidence, I remind myself of what Roger VP said in Tang Shau Tsan v Wealthy Construction Co Ltd, CACV 58/2000 (unreported), at paragraph 11 of that judgment:

An expert witness can give evidence as to the nature of the plaintiff's injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.

15.  Besides, medical experts are not allowed to address on the factual question of the likelihood or otherwise of employers in the employment market employing persons with particular injuries and/or disabilities. The issue of employability of the claimant by employers in the job market depends not only on clinical opinion as to his physical or mental capability in undertaking a particular job given its nature or scope of duties, but also on a host of other factual matters (eg the motivation, willingness and/or efforts of the claimant in finding work) that are fully within the purview of the trial judge. To put the questions as posed to the experts is to risk letting them usurp the function of the trial judge as fact-finder.  The court should be alert to ensure that judges and not experts are to decide cases: see Yip Koon Man v Yuen Long Merchants Association Secondary School, DCEC 602/2008 (unreported), as per HHJ Marlene Ng.

16.  Furthermore, in testing the conclusion reached by the Assessment Board against the total evidence available, the court should also have regard to s 9(1A) of the Ordinance which requires it to take into the special circumstances of the injured employee.  Because if there are, the true loss must be ascertained and proportionally applied to a “permanent total incapacity calculation based on s 7: see Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd [1991] 2 HKLR 455, at 558G-I and also Lau Man Leung v Yiu Wing Construction Co Ltd, CACV 2232/2001 (unreported), at paragraph 25 of that judgment. 

The applicant’s submissions

17.  Mr Cheng, counsel for the applicant, urged the Court to find that the applicant has suffered a total loss of earning capacity as a result of the accident in spite of the fact that his expert, Dr Lau, agrees with the revised assessment given in the Form 9 that the applicant’s loss is 25%.  Mr Cheng relied on the following:

(a) the applicant was 51 years old at the time of the accident and is now aged 54;

(b) he only received primary education in Hong Kong;

(c) he had worked as a driver since around 19 years old;

(d) he still suffers from residual pains and is advised not to sit for a long period;

(e) he can only walk with crutches and has to avoid slopes and stairs as much as possible;

(f) he has been unemployed since the accident; and

(g) although he tried to learn computer for a few months, he could not master the skills at all. 

Consideration

18.  I accept Mr Cheng’s submission that, in view of the applicant’s injury, age, limited education and the negative effect of his appearance (walking with a limping gait with crutches and wearing of a foot splint), the applicant’s employment prospect would be largely reduced.  I also accept that the chance of the applicant ever returning to his previous work as a professional driver is minimal.  Moreover, I take into account that the applicant, if he was able to find an employment, would be likely because of his disabilities to be one of the first to lose his job in the event of any downturn in the economy: Mak Tin Chun v Yeu Sing Construction Co Ltd [1991] 2 HKLRD 460, at 466I.

19.  However, in my judgment, whilst employment prospect is a relevant consideration for assessing one’s earning capacity, the two are not to be equated.  Instead of focusing on the applicant’s prospect of employment, it is more pertinent for the Court to ask, for the purpose of s 9 and s 9(1A), to what extent, if any, the employee concerned is capable of being gainfully employed in an alternative employment which he was capable of undertaking at the time of the accident and what is the difference in earning capacity as a result of the injury.  

20.  Concerning the applicant’s injury, I note that his problems are mainly about his lower limbs, his mobility and also the fact that he cannot sit long because of his pains.  However, there is no upper limb impairment.  Dr Lau’s expert opinion is that the applicant should be given vocational training and he is capable of doing light and sedentary jobs, eg, clerk or cashier.  I have not lost sight of the fact that the applicant tried to acquire computer skills but failed or the fact that he only has limited education and work experience.  I note also that the applicant has been unemployed since the accident.  However, his evidence in court is that he has not tried to seek any employment after the accident.  Therefore, the effect of the evidence before me is not that the applicant is incapable of undertaking any kinds of job. 

21.  Based on the evidence before me, I am satisfied that the applicant has not lost all of his earning capacity.  I find that the applicant is still capable of being gainfully employed, if not full time basis then at least on a part time basis.  I note the applicant’s age, impaired mobility, back problem, limited education and work experience. However, I accept Dr Lau’s opinion that the applicant is still capable of doing light and sedentary jobs.  Despite the fact that the applicant’s unsuccessful attempt to acquire computer skills, I find that his prospect of employment may still be improved if he receives appropriate vocational training.

22.  As regards the percentage loss of earning capacity, whilst no reasons have been by the Assessment Board as to why they re-assessed the applicant’s loss of earning capacity from 6% to 25%, it would appear that the Assessment Board had paid too much regard to the percentage compensation of the nearest injury listed in the First Schedule of the Ordinance and insufficient regard to the applicant’s special circumstances.   I also do not accept Dr Lau’s opinion in respect of his agreement to 25% loss of earning capacity: see Tsang Shau Tsan v Wealthy Construction Co Ltd, supra.  Moreover, I note that Dr Lau did not explain why he agreed to the Assessment Board’s re-assessment.  It would appear that this part of Dr Lau’s opinion is affected by his assessment that the applicant has suffered a 19% permanent impairment of the whole person.  In my judgment, the plaintiff’s loss of earning capacity is significantly higher than 25%.

23.  Mr Cheng submitted that the Court should adopt the formula provided in Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HKLR 556 as modified in Yip Fong Ming v Joint-Effort Engineering Co [1989] 1 HKC 505.  However, the submission was made on the premise that the applicant has lost 100% of his earning capacity.  Moreover, there is no evidence before me as to any earnings, actual or notional, that the applicant could make taking into account his injuries.  It would not be right for me to take judicial notice of the notional amount that the applicant may earn.  In all the circumstances, in my judgment this is not an appropriate case to apply the Hong Kong Paper Mills formula: see Mak Tin Chun v Heu Shing Construction Co Ltd, supra and Wong Wing Cheung v Interlite (Asia) Ltd & Ors [2003] 3 HKLRD 473. 

24.  In view of the limited amount of evidence before me, taking the applicant’s special circumstances into account, adopting a view most favourable to the applicant and given my finding that the applicant is capable of doing light and sedentary jobs at least on a part-time basis and earning perhaps a minimum level of income, my assessment is that the applicant has lost 80% of his earning capacity as a result of the accident.  Therefore, I allow the applicant’s appeal under s 18 of the Ordinance and adjust the assessment accordingly. 

Assessment of compensation

Section 9

25.  Given my finding that the applicant’s loss of earning capacity is at 80%[2] and the fact that he was 51 years old at the time of the accident, the multiplier to be adopted is 72: see ss 7 & 9 of the Ordinance.  The income of the applicant before the accident was $13,075.  Therefore, the amount of compensation payable under this section is$13,075 x 80% x 72 = $753,120.

Section 10

26.  The applicant’s sick leave between 9 September 2010 and 31 January 2012 (550 days), which was supported by sick leave certificates, is covered by the Form 9 and described as necessary.  I also note that Dr Lau opined that this period of sick leave was appropriate.

27.  As regards the applicant’s additional sick leave between 13 April and 22 May 2012 (40 days), it has not been covered by the Form 9 and Dr Lau, whose expert report was dated 6 March 2013, had not commented on its reasonableness.  Although the applicant has also obtained sick leave certificates recommending sick leave for this additional period, I note that it was only extended 3 days at a time for the whole period.  In the absence of expert opinion regarding its necessity or reasonable, I am not inclined to award compensation for this additional period. 

28.  Therefore, the amount of compensation payable under this section is$13,075 x 4/5 x 550/30= $191,766.67.

Section 10A

29.  The applicant has not paid for any medical expenses.  Therefore, there will be no compensation under this section.

CONCLUSION

30.  I award the following compensation to the applicant:

(a)              Section 9              $753,120.00

(b)             Section 10            $191,766.67

                  Total:                   $944,886.67

31.  The applicant is prepared to give credit for the advanced payment of $94,140 made by the respondent.  Therefore, the net amount of compensation is $850,746.67.

32.  There will also be interest on the compensation at half the judgment rate from the date of the accident to the date of this order and thereafter that at the judgment rate.

33.  I also make an order nisi that the applicant’s costs be paid by the respondent, to be taxed if not agreed, with counsel certificate.  The applicant’s own costs are to be taxed in accordance with legal aid regulations.