WONG HOI CHUNG v. LKK TRANS LTD

DCEC 153/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 153 OF 1999

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IN THE MATTER OF AN APPLICATION BETWEEN :-

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J U D G M E N T

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1. This is an application for employee's compensation under Section 9 of the Employees' Compensation Ordinance (hereinafter referred to as "the Ordinance"). Compensation under Sections 10 and 10A of the Ordinance has been fully paid. The fact that the accident occurred to the Applicant in the course of employment is not disputed.

2. The issues that arises for determination are:-

1. Whether the defence of the Respondent is sustainable. The Respondent's defence is, that the Applicant's permanent partial incapacity arising from the accident has been superseded by the incapacity from the progression of his pre-existing bilateral avascular necrosis of the hip so that no incapacity results from the accident.

2. What is the % of permanent partial loss of earning capacity that results from the accident and whether this is a case where compensation should be assessed under Section 9 (1A) of the Ordinance.

Evidence of the Applicant

3. The Applicant gave evidence and adduced his witness statement into evidence as his examination-in-chief. There was no cross-examination of his evidence so that the Applicant's evidence was unchallenged. The Applicant was aged 43 on the date of the accident, which occurred on the 29th April 1997. He came from Mainland China to Hong Kong in September 1979. He had completed education up to Primary 6 level in the Mainland and left school when he was 11 years old. He could both read and write Chinese. After he came to Hong Kong, he has been employed as a delivery worker until the date of the accident. In his employment with the Respondent, his average monthly salary was HK$17,500.00.

The Accident

4. The accident happened whilst the Applicant was working inside a warehouse of Wellcome Supermarket at Kwai Chung No. 3 Pier. The Applicant had climbed onto the back of a 16 ton truck that was full of goods. Whilst walking along the edge of the open compartment of the back of the lorry his left foot and right foot were both caught and he lost balance and fell backwards out of the truck to the ground. The position where he was standing before the fall was 4 feet off the ground. When he fell, his left hip hit the ground first.

5. In the accident, he did not lose consciousness but the pain from the injuries sustained was grave. When he stood up, he could not walk. The truck driver took him to the bus stop and he took a van. He did not immediately seek medical treatment at his place of work.

6. He went back to work the next day, but the pain was severe and he could not work. The truck driver then took him to the Jockey Club Clinic in Tai Po. He was given 3 days sick leave and was told to come back for follow-up 3 days later. On the 3rd day, the nurse called him to inform him that he had a broken bone. He took a bus to the Jockey Club Clinic. The Clinic took him by ambulance to the Prince of Wales Hospital. He was seen by Professor P.C. Leung. He was told that his hip was in a serious condition and he could not go back to his former employment. He was in great pain thereafter and regularly took pain killers and he also used a pain killing machine.

7. On the advice of Prof P.C. Leung, he had an operation on his left hip on 13th July 1998. He was transferred to Shatin Hospital on 20th July 1998 and stayed there until 4th August 1998. He then returned to Tuen Mun Hospital for physiotherapy treatment for about a year and a half.

Medical Evidence

8. The medical reports and the reports of the medical experts were agreed to be admitted into evidence without calling the experts from either side. The Applicant's medical expert Prof. P.C. Leung and the Respondent's expert Dr. Lau Hoi Kuen prepared a joint medical report at pages 36 to 42 of Section C of the Bundle of Documents (BD-C).

9. The day following the accident, namely on 30th April 1997, the Applicant attended Tai Po Jockey Club Clinic. The Report from Tai Po Jockey Club Clinic in 1997 at page 1 of BD-C states that "He complained of pain over his left hip and thigh. On physical examination, there was no swelling or bruises. There was tenderness over his left hip and thigh. The movement of his left leg was limited because of pain. X-ray of left leg was taken which showed minimal impacted fracture."

10. Medical Report of Tai Po Jockey Club Clinic dated 16th February 1998 stated that at the consultation dated 3rd May 1997, "Patient complained of left hip pain."

11. Medical Report of Dr. Christopher Tong from Dept. of Orphopaedics & Traumatology of Prince of Wales Hospital dated 15 July 1998 state,

"The patient claimed that he suffered an injury on duty after jumping from 6 feet and landing on his left foot. He subsequently complained of left hip pain. X-ray revealed a break of cortex of the femoral head. . .MRI scan revealed bilateral avascular necrosis of the hip, with collapse of left femoral head."

12. Medical Report of Dr. Lee Po Chin dated 30th January 1999 at page 21 of BD-C states his Comments. He states;

"According to the medical report prepared by Dr. Christopher Tong of Dept. of Orthopaedics and Traumatology, Prince of Wales Hospital, Mr. Wong suffered from 'break of cortex of the femoral head' after the alleged injury. It is therefore possible that the fracture may be caused by the injury.

However, he has bilateral avascular necrosis of both hips. This is likely to be a pre-existing condition. With avascular necrosis of the hip, subchrondral fracture can sometimes occur with trivial injury.

Despite the surgery, Mr. Wong still notices pain and weakness of the left hip. X-rays show that the left femoral head is slightly deformed. There is marked degree of coxa vara (decreased in the normal neck-shaft angle) of the femur. This explains for the rather severe weakness so much so that Mr. Wong still requires a pair of crutches for walking.

With his present symptoms, Mr. Wong's disabilities are pain and weakness of his left hip. There is structural changes in the left hip that can account for his symptoms.

13. Medical Report dated 19 November 2001 of Prof. P.C. Lee who treated the Applicant and operated on his left hip in July 1998 stated at page 14 -15 of BD-C stated,

"Surgery was done in July 1998. During the surgical exploration, it was found that the necrotic head significantly collapsed and the cartilage cover already cracked. The choice of treatment would then be either joint replacement or some other alternative, if rescue of the femoral head were to be insisted. It was decided that a rotational osteotomy over the base of the femoral neck be done. This would allow the up-shifting of the inferior part of the femoral head, so that this part with undamaged cartilage cover would become the weight bearing part.

Ever since surgery, Mr. Wong was going through a long process of rehabilitation. Which, however, failed yet to bring him back to normal activities.

The present complaints included the following:-

1. Left hip pain and weakness with shortening of the leg.

2. Morning pain and stiffness.

3. Inability to lie on the left side because of pain.

4. Had to walk with a pair of crutches and could only manage about 400 metres.

5. Unable to squat, and had to use sitting type of toilet.

6. Relied on taxi for transportation because he could not stand the vibrations of a bus.

Radiological Examination

The operated left side showed the osteotomised femoral neck and the inserted iliac crest strut. Degenerative changes over the left hip was obvious but mild. Two screws were found, stretching between the femoral head and neck. The femoral head was flattened by 2-3 mm.

Judging from the radiological appearance, a continuation of femoral head collapse would be expected. This explained the pain in the hip, the limitation of motion and the need to use crutches."

14. The Joint Medical Report of Prof. C. P. Leung state the following under Comment:-

"According to the medical report from the Orthopaedic Clinic PWH, x-rays of his left hip after the accident revealed 'a break of the cortex of the femoral head'.

Prof. Leung is of the opinion that although the neck fracture was not proven in subsequent radiographs, fracture of the femoral head (subchondral) was seen. This could have been caused by the accidental fall on a diseased hip.

Dr. Lau is of the opinion that Mr. Wong did not suffer fractured neck of his left femur in the accident. Otherwise this would have been shown up in the x-rays taken on 8 May 1997 (9 days after the alleged accident). As any injury to the hip occurred 9 days ago could not have led to avascular necrosis of the femoral head, the avascular necrosis of his femoral head ought to have been existed before the alleged accident.

Dr. Lau agrees with Prof. Leung that the alleged accident could have enhanced the pre-existing avascular necrosis of the left femoral head by bringing forward the occurrence of the subchondral fracture and the collapse of the femoral head.

Dr. Lau, in trying to quantify the effect of the alleged injury to his left hip on the pre-existing avascular necrosis of the femoral head, suggests using the right hip as a model for comparison. This is based on the assumption that the avascular necrosis process in both hips would run the same natural course. It has been shown by serial x-rays taken in the past few years that subchondral fracture and collapse of the femoral head had occurred in the right hip even without any history of injury. The alleged injury to the left hip may be considered as having brought forward the onset of the subchondral fracture and collapse of the left femoral head for about 3 years.

Prof. Leung and Dr. Lau agree that the avascular necrotic process of Mr. Wong's right hip is unrelated to the subject accident.

In spite of the operation done to his left hip in July 1998, there has been further deterioration and collapse of his left hip. Now he has to add a 5 cm shoe raise to his left leg. He also has a 30 deg. flexion contracture of his left hip detected at this examination.

There has also been progressive collapse of his right femoral head in the past few years. His right hip has become painful since January 2001. The pain and stiffness of his right hip is very severe at present.

Dr. Lau is of the opinion that Mr. Wong, having the function of his hips improved after total joint replacement, can take up light and sedentary jobs such as cashier, lift operator or telephone operator. He cannot return to work as a delivery worker even after having good result form the joint replacement operations."

Injury resulting from the Accident

15. It would seem from the facts of the case that the accident did cause an injury to the Applicant. Before the accident, the Applicant worked as a delivery worker. The work of delivery workers normally required lifting and carrying goods being delivered and climbing onto the back of lorries or vans. Immediately after the accident, the Applicant stated that the pain from his injury was grave. He stood up but he could not walk. It was recognized that he could not walk for the truck driver took him to the bus stop where he could take a van home. He did not seek medical treatment. There is no explanation for that. He went back to work the next day but the pain was so severe that he could not work. The truck driver then took him to the Jockey Club Clinic. He was given three days sick leave by the doctor at the clinic.

16. The medical report of the Tai Po Jockey Club Clinic showed that the X-ray film done on the 30th April 1997 showed minimal impacted fracture of left femoral neck. Prof. Leung was of the opinion that although the neck fracture was not proven in subsequent radiographs, fracture of the femoral head (subchondral) was seen. This could have been caused by the accidental fall on a diseased hip. Dr. Lee Po Chin was of the view that with avascular necrosis of the hip, subchrondral fracture can sometimes occur with trivial injury.

17. The medical report of Dr. Christopher Tong dated 15 July 1998 stated that X-ray done on the Applicant revealed a break of cortex of the femoral head. As the Applicant fell on his left hip from a height of 4 feet above ground and as he felt great pain so that he could not stand immediately after the accident and could not work and again on the following day he could not walk and had to be driven to the Tai Po Jockey Club Clinic from work, it is likely that he had a serious injury to his left leg and hip and in my view, on a balance of probability, the subchondral fracture of the femoral head was caused by the fall on the left hip. It is clear that the Applicant had suffered a serious injury to his left leg or hip from the accident.

The Relevant Sections of the Ordinance

18. The relevant sections of the Employees Compensation Ordinance are:-

s.3 "partial incapacity" means, ... where the incapacity is of a permanent nature, such incapacity (which may include disfigurement) as reduces his earning capacity, present or future, in any employment which he was capable of undertaking at that time;"

s. 5 (1) Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.

s. 9 (1) Subject to subsection (1A), where permanent partial incapacity results from the injury the amount of compensation shall be -

(b) in the case of an injury not specified in the First Schedule, 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 in any employment which the employee was capable of undertaking at that time:

Provided that -

(i) . . .

(ii) in the case of injury not specified in the First Schedule, the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentages specified in that Schedule and to the Note thereto.

Relevance of U.K. Authorities on Causation

19. The Respondent's Counsel Mr. Bharwany submitted that in assessing the compensation of permanent partial incapacity of the Applicant I should have reference to the U.K. Industrial Injury Benefit Scheme based on the previous Workmen's Compensation Scheme. He states that our Employees' Compensation Ordinance is based on the former U.K. Workmen's Compensation Acts. He stated that "causation is very much a part of the equation in determining to what extent there is liability to pay compensation for an accident at work. He has asked me to consider the aspect of causation with reference to the cases and authorities in England.

20. I have taken time to read and consider the English authorities and passages on causation in Willis on Workers' Compensation and Richard Lewis on Compensation for Industrial Injury. However, having read the U.K. Workmen's Compensation Act 1925 on which many of the authorities are based, I find that the U.K. Workmen's Compensation Scheme differ greatly from the Hong Kong Employees' Compensation Scheme. In the Employees' Compensation Ordinance in Hong Kong we have provision for lump sum compensation under sections 7 and 9 of the Ordinance for permanent total and permanent partial incapacity respectively. No comparable provision for lump sum compensation for loss of earning capacity for permanent total or partial incapacity is found in the U.K. Act. In relation to total or partial incapacity, section 9 of the U.K. Act provides that "compensation . . .where total or partial incapacity for work results from the injury shall be a weekly payment during the incapacity of an amount calculated in accordance with the rules . . ." The rules provide for calculation of payment of a proportion of the weekly earnings of the workman's average weekly earnings during the previous twelve months or such shorter period as he has been working for the same employer. The compensation is not compensation for loss of earning capacity as is the case in the Hong Kong Scheme of Compensation for permanent total or partial incapacity. The difference between the two schemes would become clearer in the light of the proviso at the end of section 9 (4) of the U.K. Act which states,

"Provided that every such order shall be made subject to the condition that it shall cease to be in force if the workman receives unemployment benefit."

21. It seems therefore that, the U.K. Workmen's Compensation Scheme is enacted in the background of U.K. Government social security and the provision of unemployment benefit that exists for workers in the United Kingdom. This may explain why there is no provision for lump sum compensation for permanent total or partial incapacity. In Hong Kong, our situation in social benefits is not the same as that in the U.K.

22. Another feature of the Hong Kong scheme that does not appear in the U.K. Scheme is the existence of the First Schedule and provision for assessment of compensation for permanent total and permanent partial incapacity based on bodily impairment listed under the First Schedule. It is further stated in section 9 (1) (b) (ii) of the Ordinance that even for a non-scheduled injury the assessment of loss of earning capacity permanently caused by the injury must as far as possible be in conformity with the scale of percentages specified in the Schedule.

23. Further, section 10 (5) of the Ordinance state:-

"(5) An employee who has received periodical payments under this section for a period of 24 months from the date of the commencement of the temporary incapacity or for such further period being not more than 12 months as the Court may allow in any particular case shall no longer be entitled to periodical payments under this section but shall be deemed to have suffered permanent incapacity and the provisions of section 7 or 9, as the case may be, shall apply to the employee."

24. In Butterworths Hong Kong Personal Injury Service at para 1552 under heading "(i) Is the injury permanent?" it refers to the deeming provision in section 10(5). It states:

"It is important to also recognize that this presumption of permanent incapacity contained in section 10(5) is not expressed as being a rebuttable presumption. That is to say, the section contains no words like 'in the absence of evidence to the contrary' which would indicate that an employer could, by calling the appropriate evidence, rebut the presumption that after 24 months the employee is permanently incapacitated. This last point was noted by Judge Scriven in Chan Kan Fat v. Dickson Construction Co Ltd. . ."

25. It seems to me that these point to marked differences in the intention and purpose behind the two Schemes of Compensation.

26. As the two schemes are markedly different in these respects, in my view, U.K. authorities are not as readily transferable to the Hong Kong Scheme of Employees' Compensation without reference to the Hong Kong Ordinance and the difference between the two legislations and Schemes. It may not be so helpful to refer to the U.K. cases on the law where the underlying legislation between the two schemes differ.

27. The Applicant had received periodical payments for permanent total incapacity under section 10 of the Ordinance for a period of 36 months. The deeming provision in section 10 (5) applies to the Applicant.

The First Issue

The Defence of the Respondent

28. The Respondent's Counsel Mr. Bharwaney stated in his submission, both oral and written that the defence of the Respondent is one of causation. Mr. Bharwaney submitted that assessment of permanent partial incapacity must be made in the light of the events which have occurred up to the time of the assessment. He submitted that this is done in cases where novus actus interviens is raised as a defence. In this case, the same should be done even though he submits that his argument is not one of novus actus interviens but one of causation. He submits that in the present U.K. Industrial Benefit Scheme, "causation is very much a part of the equation in determining to what extent there is liability to pay compensation for an accident at work." He refers to a passage from pages 45 to 49 of Compensation for Industrial Injury by Richard Lewis which is a book which guides the reader through the current rules for claiming compensation under the Industrial Injuries Scheme in the U.K. According to Richard Lewis, the present U.K. Scheme of Compensation for Industrial Injury is a revised scheme of benefits for work accidents and diseases which superseded the scheme under the Workmen's Compensation Acts. The basis of the scheme is at present in the Social Security Act 1975.

29. At page 45 of the book under the heading "3. The Accident Must Cause the Injury - (1) General principles of causation", it states,

"But it is apparent that the scheme has arrived at complex solutions depending upon subjective and unpredictable formulae often similar to those found in the law of tort or crime."

30. Thus when seeking to refer to authorities on causation in Richard Lewis' afore-mentioned textbook, one must take note of the development of the principle of causation in the U.K. Scheme along the lines stated in the aforesaid paragraph cited.

31. Sir Alan Huggins V.-P. as he then was stated in Hong Kong Paper Mills Ltd. v. Chan Hin-wu [1981] HKLR 556 states at page 558 of the judgment,

"Whether or not McAuley v. London Transport Executive [1957] 2 L1.L.R. 500 lays down a principle which ought to be of general application in Hong Kong, in my judgment it clearly has no application to a claim for workmen's compensation. There is a great difference between a claim for damages in negligence at Common Law and a claim for compensation under the Employees' Compensation Ordinance. Employees' compensation must be assessed solely under the statutory provisions and, unless the Ordinance provides for a reduction of the basic compensation specified, no reduction may be made."

32. Mr. Bharwaney referred to a case R(I) 16/55 cited in Richard Lewis' book at page 46 under the heading "(2) Later injury after the industrial accident". The claimant in that case was injured by a minor industrial accident wherein nails pierced his foot. He later walked on a beach. A pebble on the beach got imbedded in the original wound and the pain caused him to turn his ankle and he fractured a bone. The second injury was a non-industrial injury. It was found that the later injury was a new intervening cause giving a new starting point to the incapacity and no benefit could be claimed for the fractured bone.

33. On the basis of the aforesaid, Mr. Bharwaney submitted that in the same way, an enquiry should be conducted in this case whether the Applicant's present condition was caused by the accident at work, or by his own pre-existing condition, or by a combination of both, and, if so, the extent of the permanent partial incapacity which has resulted from the injury caused by the accident at work.

34. Mr. Bharwaney submitted that the Respondent's case, in a nutshell, is this. Even without the accident, on the basis of the medical opinion of Dr. Lau Hoi Kuen, the Applicant's pre-existing bilateral avascular necrosis of both femurs would have resulted in the incapacity he currently suffers from. Mr. Bharwaney referred to the case of Jobling v. Associated Dairies [1982] AC 794. In that case, the claimant suffered an accident at work from which he suffered a back injury with a consequent reduction of earning capacity. Before the trial of his action against his employers he was found to be suffering from a condition (myelopathy) in no way connected with the accident. This would, in any event have totally disabled him about the middle or end of the year. It was held by the Court of Appeal that in the assessment of damages the myelopathy could not be disregarded since the court must provide just and sufficient but not excessive compensation, taking all factors into account, and must recognize that the supervening illness would have overtaken the plaintiff in any event.

35. It must be noted that Jobling v. Associated Dairies is a case where Common Law damages was claimed. It is not an employees' compensation case. Hence damages was assessed according to common law principles. In the light of the judgment of Sir Alan Huggins in the Hong Kong Paper Mill case, employees compensation should only be decided within the four corners of the Employees Compensation Ordinance.

36. Mr. Bharwaney referred to the case of McCann v Scottish Co-operative Laundry Association Limited [1936] 1 AER 475. The Editorial Note in the report of the House of Lords' decision in this case states:

"The existence of injury due to an accident arising out of and in the course of the employment is the sole criterion whether compensation is payable or not. There are many cases where illness supervenes upon the accident and if the illness is not the result of the accident or the injury caused thereby, the employee is still entitled to compensation so long as there is incapacity due to the accident. The last stage is reached when the employee is totally incapacitated by illness not resulting from the accident, but even in that case, if there is still any incapacity due to the accident, the employee may still recover compensation, and this is so even though there is an offer of light work which the employee by reason of such illness must refuse."

37. In considering the principle stated in the Editorial Note of the case aforesaid, it must first be borne in mind that the English Scheme of Workmen's Compensation under the Workmen's Compensation Acts compensation for incapacity is a weekly payment "during incapacity". Hence it is stated in Willis' Workmen's Compensation Act, 1925, 1945 Edition at page 283 under the heading "Difference Between Aggravation and Acceleration of Disease" the following:

"By reason of the fact that the compensation when death results from the injury is to be a lump sum (s.8), it is immaterial that the deceased was suffering from a disease which would certainly have proved fatal in a short time. On the other hand, compensation for incapacity is a weekly payment "during the incapacity" s.9(1)."

38. Section 9(1) of the Workmen's Compensation Act 1925 state:

"The compensation under this Act where total or partial incapacity for work results from the injury shall be a weekly payment during the incapacity. . ."

39. In Hong Kong, compensation for permanent partial incapacity is by way of a lump sum payment. Section 9 (1) of the Hong Kong Ordinance provides that "where permanent partial incapacity results from the injury the amount of compensation shall be . . ." and the compensation is by a lump sum payment. The words "shall be a weekly payment during the incapacity" in section 9(1) of the Workmen's Compensation Act 1925 is not in section 9 (1) of the Hong Kong Ordinance. It is clear that the law on which McCann was decided under section 9(1) of the U.K. Workmen's Compensation Act 1925 is different from section 9(1) of the Hong Kong Ordinance.

40. Despite what is stated in the Editorial Note of McCann, the House of Lords granted compensation to the employee for partial incapacity resulting from the injury. This was despite the fact that she had been offered work at full pay by her employer which she was not able to take up by virtue of a supervening illness that had nothing to do with her injury. The supervening illness had rendered the employee unable to work. Lord Macmillan stated at page 482 of the judgment:

"My Lords, it is now well settled, that a workman who by reason of incapacity due to an accident is entitled to compensation does not lose that right merely because through some extraneous supervening cause, such as illness or old age, a natural incapacity is added to the incapacity due to the accident. The employer cannot plead that as the workman would, by reason of his condition apart from the accident, be incapacitated in any event, he has lost his right to compensation. There is no merger of the accident incapacity in the natural incapacity. The circumstance accordingly that the appellant's partial incapacity due to her accident was during the period in question combined with total incapacity due to her illness, affords the respondents no answer to her claim to be compensated for her partial incapacity during that period."

41. There is no doubt that in a claim for compensation for permanent partial incapacity under the Ordinance of Hong Kong, the Court has to have regard to "permanent partial incapacity which results from the injury". In considering causation the legal principle referred to in Richard Lewis' book at page 47 under the heading "(3) Earlier susceptibility to injury before the accident at work" is applicable to the Scheme of employees compensation in Hong Kong as other Hong Kong authorities hereinafter referred to also lays down the same principle :

"the work need only be a material not the predominant cause, so that compensation arises if a minor work incident has quite disproportionate physical results and the claimant suffers much more serious injury than would a normal worker. It does not matter then that the industrial cause is the "last straw which breaks the loaded camel's back", for the scheme takes its claimants as it finds them, including their pre-existing weaknesses."

42. In considering the "incapacity that results from the injury" "by accident" in this case, I consider the medical evidence. I have found that the injury caused by accident included the subchondral fracture of the femoral head. The injury had impacted on the degeneration caused by avascular necrosis and aggravated as well as accelerated its progress by causing the fracture in the manner it did. The operation done on the left femoral joint was necessitated by the accident. With a view to rescue the femoral head Prof Leung decided on an operation that included a "rotational osteotomy over the base of the femoral neck. This would allow the up-shifting of the inferior part of the femoral head, so that this part with undamaged cartilage cover would become the weight bearing part." ( refer to the report of Prof. C.P. Leung at page 14 of BDC) In the medical report of Dr. Lau Hoi Kuen dated 2nd July 2002 at para (5) in page 31 of BDC Dr. Lau states that, "there is the additional problem of shortening of his left leg. This is partly due to the collapse of the femoral head and partly due to the coax vara deformity of the femoral neck subsequent to the rotational osteotomy."

43. From Attorneys' Dictionary of Medicine and Word Finder Vol. 6 "vara" was defined as:

"Designating an abnormal turning inward or toward the midline of the body. Example: coxa vara, which see. Also note under varus. . ."

"Coxa vara" was defined as "A deformity of the hip joint caused by an abnormal width of the angle between the neck of the femur (bone of the thigh) and the shaft of the femur. The normal angle is between 120 and 140 degrees. In coax vara the angle is smaller than 120: it may be a right angle or less."

44. The Butterworths Medical Dictionary defines "varus" as:

"1. A deformity in which the legs are bent outwards; genu varus. 2. Inversion of the foot so that the weight is brought on to the outer part of the sole; . ."

45. According to Dr Lau the two causes for the additional problem of shortening of the Applicant's left leg is firstly the collapse of the femoral head. Secondly it was coax vara deformity of the femoral neck subsequent to the rotational osteotomy. With a view to rescue the femoral head the operation chosen was not a joint replacement operation but one which included a "rotational osteotomy over the base of the left femoral neck of the Applicant. The natural consequences flowing from the accident was the fracture of the femoral head of the Applicant's left hip which led to the rotational osteotomy. Subsequent to the rotational osteotomy the Applicant had coax vara deformity and shortening of the left leg. The accident had impacted on the avascular necrosis of the Applicant's left hip. In my view, the avascular necrosis of the left hip could no longer be said to run its natural course because the injury from the accident had impacted it in the way it did bringing with it the consequences which flow from it including the operation and the manner and time of the operation.

46. Butterworth's Hong Kong Personal Injury Service in para IV [153] under the heading "(ii) Injury and causation" state:

"Before leaving the topic of causation, it is appropriate to refer to what Rhind DJ said in Preng Eing Chiau v Hatch & Turk Health Centres Ltd. He said this:

"How causation operates in this branch of the law is described by Boulter at para 171 and by Mac Donald at paras 397-399. Of particular use was the following extract from MacDonald's para 399:

". . .all consequences by way of death or incapacity for work, however remote in point of time, however indirect in process of causation, and however unnatural or improbable they may be, do in fact result from the injury by accident suffered if, tracing an uninterrupted series of events each following on the other as effect and cause, the injury (by accident) can be shown to be the responsible and material factor, or one of two or more responsible and material factors, causing ultimate dealth or incapacity, and without which the death or incapacity would not have occurred at the time or in the manner it did occur. . ." " "

47. The authority cited in the passage of MacDonald's Law Relating to Workers Compensation in New Zealand (4th ed. 1968) with supplement 1970 (Butterworths) for this proposition are judgment of Buckley LJ and Cozens-Hardy MR in Ystradowen Colliery Co Ltd v Griffiths [1909] 2 KB 533. In that case Cozens-Hardy M.R. state at page 535 of the judgment:

". . . but given an admitted accident, it is not the law to say that a disease which has been accelerated, still more if produced, by the accident, is not a matter which comes within the four corners of the Act of Parliament."

48. The injury that resulted from the accident was the fracture of the subchondral femoral head of the Applicant's left hip which led to the operation on the Applicant's left hip of rotational osteotomy. Subsequent to that the Applicant suffered a marked degree of coax vara deformity of the femoral head. At the time when the Applicant was seen by Dr. Lee Po Chin, Dr. Lee was of the view that the coax vara explained the rather severe weakness then suffered by the Applicant in his left leg (see page 3 of Dr. Lee Po Chin's Report at page 22 of BD-C). This together with the collapse of the femoral head caused the shortening of the leg after the operation. As can be seen, the accident impacted on the avascular necrosis of the left hip both aggravating it and accelerating its progress.

49. Dr. Lau Hoi Kuen in the joint medical report of Dr. Lau and Prof. Leung at page 41 of BDC in para (7) stated that "in trying to quantify the effect of the alleged injury to his left hip on the pre-existing avascular necrosis of the femoral head, suggests using the right hip as a model for comparison. This is based on the assumption that the avascular necrosis process in both hips would run the same natural course. It has been shown by serial x-rays taken in the past few years that subchondral fracture and collapase of the femoral head had occurred in the right hip even without any history of injury. The alleged injury to the left hip may be considered as having brought forward the onset of the subchondral fracture and collapase of the left femoral head for about 3 years." It is noted that Dr. Lau used the word "suggests". He further made the assumption that the avascular necrosis process of the left hip would have run the same natural course as in the right hip.

50. Dr. Lau did not state any basis or ground for such assumption. At another part of his report he stated that it was logical. It would seem to me a matter of common sense that the progression of avascular necrosis of each hip would be independent of the other. The basis for the assumption made by Dr. Lau is not stated. In my view it is mere speculation without basis. The onus of proof related to this rests on the Respondent who asserts the defence that the avascular necrosis of the left hip would have progressed at the same pace as that of the right hip. At the beginning of the hearing I had asked both parties to consider calling both medical experts to give oral evidence as there were matters within their joint report which needed to be clarified. The Respondent's Counsel as well as the Applicant's Counsel did not wish to take that course. I find that the aforesaid assertion of Dr. Lau that the progression of the avascular necrosis of the Applicant's left hip would be the same as that of the right hip, is without basis and I do not accept it. Further, common sense would dictate that the progression of the avascular necrosis of the right hip could not have been unaffected by the injury in the left hip and its effect. Common sense would show that greater stress and tension would have been exerted on the right hip as a result of pain in the left hip and the gait of Applicant walking with the pain. This would no doubt be aggravated by the shortening of the left leg although the Applicant was given special shoes with a raised heel for the left leg and this would no doubt have compensated the effect of the shortening of the left leg. For these reasons, I could not accept the opinion of Dr. Lau that the progression of the avascular necrosis of the left hip would have been at the same speed as the progress of avascular necrosis of the right hip.

51. Before leaving this issue of causation, it is helpful to refer to the Court of Appeal decision in Lee Kin Kai v. Ocean Tramping Co. Ltd. [1991] 2 HKLR 232. Hunter JA, delivering the principal judgment, made the following points:

"First causation is essentially a matter for the judge not the doctors. It is a matter upon which the judge will be assisted by the medical evidence but he is not dictated to by it.

Secondly it is important to bear in mind that the law and medicine here, it seems to me, apply quite different standards. In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient, it need not be shown to be the sole cause. The doctors practice what is known as the science of aetiology. In the words of one in particular, they look for 'clinical cause', proof certainly beyond reasonable doubt and perhaps beyond any doubt. They are looking for what Lord Kilbrandon called in McGhee v. National Coal Board 'an irrefragable chain of causation'.

Thirdly a judge when considering causation is not only entitled, he is bound, to use his common sense, to approach the question in the same way as a juror. The point was conveniently made in McGhee v National Coal Board which was a case where owing to the limitations of medical knowledge, the plaintiff was unable to prove a strict causal connection between the negligence and his injury. He failed in the courts below. The House of Lords agreed that common sense could be used to fill the gap."

52. I come to the finding that :-

(1) The deeming provision under section 10(5) of the Ordinance applies to the Applicant to show that permanent partial incapacity resulted from the injury caused by the accident.

(2) In my view, the avascular necrosis of the left hip could no longer be said to run its natural course because the injury from the accident had impacted it and brought with it the consequences that flow from it as referred to above.

(3) Apart from the aforesaid, I find that on the balance of probabilities based on the facts referred to aforesaid, the accident was a substantially contributing cause of the injury suffered by the Applicant. According to the Judgment of Hunter JA in Lee Kin Kai v. Ocean Tramping Co. Ltd. referred to aforesaid, a cause is sufficient, it need not be the sole cause. There is sufficient causal connection between the incapacity suffered by the Applicant and the injury caused by the accident.

(4) Apart from the aforesaid, in my view it is not possible to envisage how the avascular necrosis of the Applicant's left hip would have developed were it not for the accident. In my view, there is no basis for the suggestion by Dr. Lau that the speed at which the avascular necrosis would have developed in the left hip would have been at the same speed as that on the right hip. Dr. Lau's attempt to do so could be because "doctors practice what is known as the science of aetiology." They look for 'an irrefragable chain of causation'. The standard applied in law is quite different.

(5) According to the words of Sir Alan Huggins V.-P in Hong Kong Paper Mills Ltd. v. Chan Hin-wu cited aforesaid, "Employees compensation must be assessed solely under the statutory provisions and, unless the Ordinance provides for a reduction of the basic compensation specified, no reduction may be made." In the light of my aforesaid findings, I see no provision nor basis in the Ordinance for reduction of the compensation for the incapacity suffered by the Applicant in the way suggested by the Defendant's Counsel.

53. For the reasons aforesaid, I find that the defence of the Respondent is not sustainable. I find that the incapacity suffered by the Respondent in his left leg and hip at the time of the assessment results from the injury caused by the accident.

The Second Issue

Assessment of Incapacity that Results from the Injury

54. On the 2nd December 2000, the Applicant was assessed by the Employees Compensation (Ordinary Assessment) Board to have suffered 40% loss of earning capacity permanently caused by the injury.

55. On the 21st February 2001, the Applicant was assessed by the Employees' Compensation (Ordinary Assessment) Board by Certificate of Review of Assessment to have suffered 60% loss of earning capacity permanently caused by the injury which was stated to be "Left Hip Injury Resulting in Pain, Stiffness and Leg Shortening".

56. Both the Applicant and the Respondent applies to appeal against the assessment on review of the Ordinary Assessment Board.

57. Under section 16H of the Ordinance the Certificate issued by the Ordinary Assessment Board shall be evidence of the matters stated therein. Section 18 (1) of the Ordinance provides that "an appeal shall lie to the District Court from any decision or assessment of . . . an Ordinary Assessment Board. . . " Section 18 (3) states that "On an appeal under this section, the Court may confirm or reverse any decision, or confirm or vary any assessment . . . or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof. . ."

58. The parties had agreed that leave be granted to the Applicant to appeal against the assessment on review of the Employees Compensation (Ordinary Assessment) board and to the Respondent to cross appeal against it out of time. Leave in fact had been granted to the Applicant and the Respondent as applied for.

59. The application of the Respondent to appeal the assessment on review is based on the contention that the permanent partial incapacity caused by the injury by the accident was superseded by the progression of the avascular necrosis of the Applicant's left hip. I have already made my finding on this. However I shall look to other factual and medical evidence of the Respondent in considering the Respondent's appeal.

60. The appeal of the Applicant against the assessment of the Ordinary Assessment Board is based on the Applicant's contention that in assessing section 9 compensation, the circumstances of this case is such that section 9 (1A) applies. The Applicant's Counsel submits that owing to the nature of the injury in relation to the Applicant's former usual employment and his qualifications, previous training and experience, the percentage of the loss of earning capacity assessed would be substantially less than the percentage of the loss of earning capacity permanently caused by the injury of the Applicant.

61. There is no dispute that in the Applicant's present circumstances, without hip replacement operations on the left and right hip of the Applicant, the Applicant's loss of earning capacity is 100%. I consider the loss of earning capacity that arises solely from the condition of his left hip. To do so, I first look to the medical evidence.

62. Dr. Lee Po Chin's medical report was dated 30th January 1999. He examined the Applicant on the 16th January 1999 about 6 months after the operation in July 1998. At that point, the complaints of the Applicant recorded by Dr. Lee Po Chin were:-

1. Left hip pain and weakness;

2. Shortening of left leg;

3. Morning pain and stiffness;

4. Unable to lie on the left side because of pain;

5. Has to sit with knee straight;

6. Has to walk with a pair of crutches and can only manage about 500 meters;

7. Unable to squat, and has to use sitting type of toilet;

8. Unable to ride on a bus and mini-bus; can ride on LRT and taxi.

63. At that point the left leg had shortened by 2 cm. Dr. Lee Po Chin states:

"Despite the surgery, Mr. Wong still notices pain and weakness of the left hip. X-rays show that the left femoral head is slightly deformed. There is marked degree of coxa vara (decreased in the normal neck-shaft angle) of the femur. This explains for the rather severe weakness so much so that Mr. Wong still requires a pair of crutches for walking.

With his present symptoms, Mr. Wong's disabilities are pain and weakness of his left hip. There is structural changes in the left hip that can account for his symptoms...

He requires a pair of crutches for walking. It is unlikely that he can return to work unless it is a strictly sedentary type of job and that he can arrange transportation to and from work. The realistic mode of transportation for the time being is by taxi or private car."

64. Dr. Lee Po Chin's report show that soon after the operation the Applicant's condition was such that he could not go back to his former mode of work as a delivery worker.

65. Prof. P.C. Lee was the doctor who had attended the Applicant since about May 1997. He operated on the Applicant in July 1998. The nature of the operation had been referred to. Prof. P.C. Lee stated in his Report dated 19th November 2001 at page 14 of BD-C that

"Ever since surgery, Mr. Wong was going through a long process of rehabilitation. Which, however, failed yet to bring him back to normal activities."

66. The complaints of the Applicant were about the same. However in relation to the distance that he could walk with a pair of crutches had decreased to 400 meters. It was stated further that he could not stand the vibrations of a bus.

67. Dr. Lau Hoi Kuen first saw the Applicant on the 25th June 2002. Dr. Lau obtained the following information from the Applicant:-

"According to him, he had physiotherapy as an outpatient for about 11/2 years. He was also referred to the Orthotic Clinic for making of shoe raise to the left leg. He said that he started to have pain in his right hip at about the end of the physiotherapy programme. Subjectively he feels that the operation to the left hip has not benefited him at all. The pain in his left hip has remained the same after the operation and furthermore, he has shortening of his left leg... He has regular follow up at the Orthopaedic Clinic. He has to take medication to control his pain. He has also been advised by the physiotherapist to apply transcutaneous nerve stimulator to control the pain in his left hip."

68. Dr. Lau stated that because of the disability of his lower limbs, he cannot return to work since the accident. Subjectively the Applicant feels that the right hip is the more painful one at the present moment. He stated that the present complaints of the Applicant were:-

1. Pain in both hips, disturbing his sleep. The pain becomes significant even with sitting for more than 20 minutes. He needs to take analgesic all the time to control the pain.

2. Stiffness of both hips.

3. Weakness of both hips and he has to walk with a stick in his right hand.

4. Shortening of the left leg.

69. In assessing loss of earning capacity I consider the medical evidence related to the Applicant's left leg and evidence related to his right hip and leg is not relevant. The projected capacity for work of the Applicant following a hip replacement operation should not be given much weight for the purpose of assessing s.9 employees' compensation under the Ordinance. In employees' compensation, the Applicant would not be awarded medical expenses for the hip replacement operation and there is no evidence as to whether he would be eligible to have such operation on the government health care scheme without payment. The costs of such an operation under private medical care is extremely high for a person in the Applicant's position and is not easily affordable. Further the result of such an operation is not certain.

70. In relation to the Applicant's incapacity it is clear that even after the operation in July 1998, and a period of one and a half years of physiotherapy the Applicant was not in a fit condition to return to his pre-accident employment as a delivery worker. He had to use crutches and he could not walk beyond 500 meters. He could not crouch and the movement of his leg was affected. He could not take public transport apart from LRT and taxi.

71. Dr. Lau stated that during the time when the disability of the Applicant would be mainly due to the collapse of the left femoral head his loss of earning capacity was assessed at 40%. Dr. Lau stated in para (13) of the joint medical report of Dr. Lau and Prof. Lee at page 42 of BDC, that he is of the opinion that having the function of his hips improved after total joint replacement, the Applicant can take up light and sedentary jobs as a cashier, lift operator or telephone operator. He cannot return to work as a delivery worker even after having good result from the joint replacement operations. It seems that his view was subject to the proviso that the Applicant would have good result from the joint replacement operations. It also implies that without successful joint replacement operations of both hips the Applicant is not fit to work in light sedentary jobs.

Does section 9 (1A) apply?

72. The Applicant's Counsel submitted that in view of the fact that the Applicant's actual loss of earning capacity is 100% it is more than the assessment of the loss of earning capacity on review of the Ordinary Assessment Board, at 60%. The Applicant's Counsel submits that in the light of the special circumstances of the Applicant, this is a case where section 9 (1A) of the Ordinance is applicable.

73. As stated earlier the Applicant worked as a delivery worker since he came to Hong Kong in 1979. He had education in the Mainland up to primary 6 level and he left school at the age of 11. He is at present aged 50. The evidence show that after the period of his sick leave ended, he returned to work with the Respondent in about April 2000. He was given light jobs, such as, cleaning his company's vehicle and collection of invoices. However it was found that he was unable to meet the requirements of his job duties. He was dismissed in March 2002. He was given a Certificate by the Personnel Manager of the Respondent. The Certificate stated that the Applicant could not clean vehicles, could not do cleaning work, he could not do painting work and could not do registration of documents nor collect vouchers. He was thus dismissed.

74. From the complaints of the Applicant stated in the report of Dr. Lee Po Chin, dated 30 January 1999, related to a time before the avascular necrosis on the Applicant's right hip developed, it is clear that the Applicant would have real difficulty working in any work which required him to stand or to walk or even to sit for long periods of time. He had to sit with his left knee straight. As he could not ride on a bus or a mini-bus, it made travel to and from work by the cheaper modes of public transport, difficult. Further on in time, the length of the left leg of the Applicant shortened further to 5 cm. The pain on his left hip increased.

75. I consider whether the Applicant would have been able to do sedentary work if he did not have incapacity in his right hip and the only injury and incapacity he suffered came from the injury in his left hip? In my view, if the Applicant had difficulty sitting for long periods or had to sit with his knee straight, it would have been physically difficult for him to do sedentary work. Further with the severe pain that developed on his left hip, it would not be possible to sit for a long period of time.

76. In considering whether the Applicant could work in sedentary work, the educational level and past employment experience of the Applicant is also relevant. As the Applicant was educated in the Mainland only up to primary 6 level, and as he had no experience in any kind of clerical work, clerical work would be out of the question. There is no evidence that he could be a cashier as the work of a cashier involves being good at keeping count of money. There is no evidence whether he could at his age retrain for any other sedentary work. It seems to me that the Applicant is not able to work in any sedentary work or any work at all. There is no evidence of any employment of which the Applicant is now capable. The permanent loss of earning capacity is total without a hip operation the result of which cannot be anticipated. As I have stated earlier, little weight would be given to the result of a hip operation for the purposes of assessment of compensation.

77. I therefore come to the finding that the loss of earning capacity suffered by the Applicant owing to the special circumstances aforesaid is greater than the 60% awarded by the Employees' Compensation (Ordinary Assessment) Board on review. I find that Section 9 (1A) applies to the Applicant in assessing his loss of earning capacity.

78. The Applicant's Counsel referred to Butterworths' Hong Kong Personal Injury Service IV [1502] (pp. 1,116-1,151) referring to the case of Tsui Lup Shing v. Hong Kong Security Ltd where Judge Leathlean after holding that 'whether incapacity is total is, of course, a question of fact', then went on to adopt two further principles as stated in the House of Lords under the UK Act. The second cited case is more relevant to the facts herein. I cite the passage hereunder:

"In Ball v. Hunt Lord Loreburn LC said stated (at page 462):

". . .in the ordinary and popular meaning which we are to attach to the language of this statute, I think that there is (total) incapacity for work when a man has physical defect which makes his labour unsaleable in any market reasonably accessible to him . . . "

Judge Leathlean then went on to hold, in reliance on the aforesaid, that a man who was so severely injured as to be only employable at a nominal wage in 'shelter workshops' was totally incapacitated within the meaning of section 7."

79. It is clear that in this case, the incapacity that results from the injury of the Applicant arising from the accident would make the labour of the Applicant unsaleable in any market reasonably accessible to him. The market reasonably accessible to him would be limited by the Applicant's special circumstances, being his age, past work experience, and education.

80. Mr. Cheung the Applicant's Counsel referred to the case of Chan Kam and Standard Chartered Bank Hong Kong Trustee Ltd. [1991] 2 HKC 455. In this case, Hunter J.A. stated at page 458 in relation to the assessment of the Assessment Board that,

"Where no reasons are given, a court can only judge an assessment by testing the validity of its conclusions against the total available evidence."

In that case, a watchman aged 72 suffered injuries arising from an incident at work. He suffered "persistent pain in the left hip especially on walking and at night when he turns in bed. He needed support when walking and has difficulty in squatting down." The medical report stated that the range of movement of the left hip by comparison with the right had been reduce by about 50%. The Court of Appeal in the judgment of Hunter J.A. found that there were special circumstances which showed that the Appellant's actual loss of earning capacity was considerably greater than the 20% assessed by the Assessment Board on review. The question, "was the appellant 'capable of undertaking' any other employment at the time of the accident, so that the availability of this should be considered now? Although there was no direct evidence, the Court of Appeal held that "by reason of his education and background he was only capable of being employed as a night watchman." The Court of Appeal agreed with the doctor's conclusion that the effect of the injuries on the appellant had brought about a "total incapacity" within the meaning of the Ordinance and awarded the appellant section 7 compensation. In this case, the assessment has to be tested against the total available evidence as I have done.

81. Though it is apparent that the Applicant is not capable of undertaking any other employment, I have regard to the fact that the Applicant has applied only for section 9 compensation and did not apply for section 7 compensation.

82. The Applicant's Counsel submitted that the residual working capacity is insignificant even were the Applicant granted a hip operation. The result of such is uncertain. Even were the operation successful, the chance of returning to gainful work is minimal. He has no career skill other than that of a delivery worker. His education level would not enable him to take up new career training. He submitted that such residual earning capacity could not be more than 10%. He submitted that the loss of earning capacity of the Applicant in view of the special circumstances should be at least 90%. I agree with the submission of Mr. Cheung and find that the loss of earning capacity of the Applicant is 90%.

83. I therefore grant the appeal of the Applicant but dismiss the cross appeal of the Respondent in view of the aforesaid. Under section 18 of the Ordinance I substitute my own assessment of loss of earning capacity which I assess at 90%.

84. The salary of the Applicant is agreed at $17,565.33 per month. The Applicant was aged 44 years on the date of the accident. Section 9 compensation is:

$17,565.33 x 72 x 90% = $1,138,233.38.

85. In relation to interest to be awarded on the judgment sum, I am of the view having regard to Ng Oi Wah v. Lamp's Co. CA 129/80 interest should run from the date of accident. However, having regard to the fact that both parties had appealed against the assessment of the (Ordinary Assessment) Board on review, and as I have allowed the appeal and had awarded the Applicant compensation pursuant to section 9(1A) of the Ordinance I am of the view that it could not be argued that the compensation awarded would have been so clear cut that the Applicant should have been awarded full interest rate for the award. I therefore am of the view that in the circumstances it is appropriate to grant interest at half judgment rate from date of accident.

86. I therefore give judgment for the Applicant against the Respondent in the sum of $1,138,233.38 together with interest thereon at half judgment rate from date of accident to date of judgment and thereafter at full judgment rate until payment. I grant an order nisi for costs of the action to the Applicant to be taxed if not agreed with Certificate for Counsel.