CHOW SIN CHUN v. SHENG KUNG HUI DIOCESAN WELFARE COUNCIL

DCEC530/2001 & DCEC929/2001
(heard together)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 530 OF 2001 and

929 of 2001 (heard together)

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J U D G M E N T

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1. These are separate claims for employee's compensation which I have heard together. The parties are common to both matters. The applicant, Mrs Chow Sin-chun, was employed by the respondents who are a government-subvented organisation, as a home help for the elderly and was injured on two occasions in the course of her employment with them.

2. The two accidents can be shortly described. The first in time was on 27 July 1999. She was travelling in a minibus owned by the respondents and driven by one of its employees when it was collided into from behind by a motorcar. At the time that this occurred, she was accompanying an old lady back to her home, having taken her to a clinic in Jordan Road. The lady had to be moved by wheelchair which was then secured into position with a seatbelt when the bus was in motion. The lady herself travelled in a seat on the bus.

3. When the collision occurred, the wheelchair, although secured in the manner that I have just described, was in no way locked in place. It was capable of a certain amount of movement. The collision caused the wheelchair to swing and strike the applicant on her kneecap. She instinctively grabbed the wheelchair to restrict its further movement with her left hand whilst holding onto her own seat with her dominant right hand. As she did so, she felt considerable pain in her left wrist which radiated upwards up her arm and into her shoulder. She described the sensation "as though my shoulder was being torn to pieces."

4. I will return to the medical aspects of this presently. Suffice it to say that she was removed to hospital and treated. She was given appropriate sick leave and subsequently returned to work in the course of which she was injured again. This was on 10 March 2000 when the applicant was working in the kitchen of the respondents' premises in Kowloon. Whilst she was reaching up to take down a stack of lunch containers and attempting to steady them with one hand, they started to topple which caused her to lose her balance and to fall onto the floor. The fall caused her to sprain her right wrist and injure her back and neck as well as aggravating the injuries that she had sustained the previous July.

5. The respondents have admitted liability in both cases and judgment has been entered against them. So the only issue that I need to decide is the amount of compensation that she should receive.

6. There are two certificates of assessment, one in each case which the applicant is content to accept. The first at page 50 of the bundle is dated 25 April 2003. It is a certificate issued by the Employees' Compensation (Special Assessment) Board which relates to the first accident in July 1999. The loss of earning capacity permanently caused by this injury is given as 21 per cent. The second certificate dated 4 September 2002 is that of the Ordinary Assessment Board relating to the accident in March 2000. The permanent loss of earning capacity caused by that accident is given as 8 per cent.

7. The nature of the contest before me is a very limited one. The applicant, represented by Mr Miller, is content to accept these assessments and she has decided to call no medical expert of her own. Mr Miller relies on the medical report of the government doctors and of Dr Chau, an orthopaedic surgeon from the Baptist Hospital, whose evidence I have read and have been referred to in some detail as well as the applicant's evidence who has told me of the effects of both accidents and her recovery up to the present time.

8. The respondents have appealed against the two certificates of assessment and in support of their appeals have called Dr Arthur Chiang FRCS, an orthopaedic specialist, to provide his expert opinion on the applicant's injuries and the effect of those injuries on her earning capacity. The only live issue therefore has been the hearing of these appeals. Helpfully, the parties are agreed as to the applicant's earnings at the time of the accidents as well as the appropriate formula for calculating compensation, having regard to the applicant's age and so forth.

9. All that I am concerned with is the section 9 award being the applicant's "compensatory claim." Under the certificate on the first accident, the applicant would be entitled to $11,115 x 72 months x 21 per cent = $168,058.80 together with interest on that figure, provided of course I uphold the percentage loss of earning capacity awarded to her by the Special Assessment Board.

10. On the second accident, the award would be $11,784 x 72 months x 8 per cent = $67,875.84 if I were persuaded that the Ordinary Assessment Board's 8 per cent loss of earning capacity is correct.

11. Dr Chiang has contended for 13 per cent loss of earning capacity on the first accident which translates to an award of $104,036.40 plus interest on that and only 2 per cent on the second which gives just $16,968.96 plus interest on that. So this is the range of disagreement.

12. Dr Chiang has given his evidence in a way that I found to be especially helpful. He has been mindful that his first duty is to the court in helping it to come to a conclusion on matters touching on his expertise. I desire to say this because so often experts, when giving their evidence, tow the party line and do not sufficiently appreciate their overriding duty to the court. Dr Chiang has demonstrated a keen understanding of what an expert's task should be before the court, and I wish to record my acknowledgement of that.

13. In saying this, I do not suggest that he has not fought his corner when he has considered that propositions put to him have not been correct whilst, at the same time properly, conceding as reasonable or tenable medical opinions expressed in the reports of the other doctors whose evidence is before me.

14. I now turn to the evidence relating to the first accident. The issue of the applicant's loss of permanent earning capacity needs to be judged in relation to a number of factors. Clearly, the physical restraints caused by her injuries, even after appropriate treatment, is the principal feature. The other important aspects are the intellectual, educational and physical skills of the injured person, having regard to his or her past working experience, his or her educational attainments and his or her ability to re-train for other employment if the injuries render the person concerned incapable of resuming pre-accident employment.

15. In this, the applicant has undergone very basic education. She left school at 14. Her previous employment had been of a light physical type. After school, she worked as a sewing machinist for a variety of employers, and after her marriage in 1983, she did part-time work in her husband's business, washing electronic boards. In 1996, she obtained a home helper's certificate which she received after a week-long training course and was therefore able to find employment with the respondents.

16. It is accepted by the respondents that her present physical limitations caused by the cumulative effect of these two accidents means that she is unable to cope with the physical demands of her employment with the respondents which entails a fair amount of lifting of old people who, given their state of infirmity, may not present as co-operative burdens in moving them from their beds into their chairs and in and out of their baths, this being because of injuries to the applicant's wrist, neck, shoulder and back which cannot now bear the stresses and strains of such physical tasks.

17. As a result, she now does part-time work as a "dinner lady" at a school canteen and doing ad hoc clerical/accounting work from home. Both of these employments pay her very badly. She told me that she now earns $1,600 a month compared to over $11,500 when she was employed by the respondents. It is therefore to be hoped that she will in the near future secure better-paid work, perhaps when the burden of this litigation and the related common law action has passed.

18. The injuries caused by the first accident are those summarised in the certificate of assessment at page 50, being a neck injury giving rise to pain and stiffness, a left shoulder injury with similar consequences as well as an injury to her left wrist. That brief description does little justice to the prolonged sick leave that this lady was given and to the treatment that she received, including operations and other procedures under general anaesthetic.

19. I think that her recovery was somewhat hampered by the fact that her employers may not have been sufficiently sensitive to her condition and did not excuse her from doing demanding tasks although she was excused the lifting duties that she had previously done. Dr Chiang, who although by no means accepting the board's 21 per cent assessment, he says the correct percentage is 13 per cent, has conceded that 21 per cent is not a figure that can be discounted as being outside the range of reasonable disagreement. He can see why, in all the circumstances, the board came to that conclusion.

20. Whilst Dr Chiang has provided me with a comprehensive report and spoken to that in his oral evidence so that his evidence must be accorded considerable weight and respect, I think his evidence does carry less conviction generally than it would otherwise have because he only assessed the applicant once on 7 November 2001. He was offered a further opportunity to see her but felt that this was unnecessary because by the time that he had seen her, he felt that her condition had sufficiently stabilised to enable him to provide a reliable assessment.

21. Her case is that, if anything, her condition has worsened since he saw her, and that goes to perhaps explain the higher percentage applied by the special board who saw her some 16 months after Dr Chiang. They saw her in April 2003.

22. Whilst the board does not provide live evidence for its reasoning on an application such as this and the applicant has not called a medical expert, I am persuaded on the evidence overall, much of it paper evidence from the other doctors, that the 21 per cent given by the Special Assessment Board is the correct percentage to apply for permanent loss of earning capacity. These injuries, when applied to this particular applicant, and I have already considered her circumstances, undoubtedly result in a higher percentage loss of earning capacity when compared to Dr Chiang's 13 per cent or even some percentage between the two which, although open to me, would be difficult to justify on the evidence.

23. I therefore dismiss the respondents' appeal against the assessment and award the applicant the amount of $168,058.80 under section 9 plus interest at rates and for periods which I will hear the parties on in a moment.

24. I now turn to the second accident. The really contentious issue here is whether this accident was no more than an exaggeration of the effects of the earlier accident and so in its own right should attract the very small assessment of 2 per cent which Dr Chiang attributes to it or the more substantial 8 per cent given by the board.

25. Rightly, in my judgment, Dr Chiang has identified the cause of the difference between him and the board. Their higher assessment must be based on the fact that the fall to the ground had caused a disc prolapse of L4/5 whilst his assessment is that all the indications are of a soft tissue injury. He suggests that all his clinical findings are not suggestive of a disc prolapse given the tests that he has carried out. His interpretation of the MRI scan shows a mild bulging consistent with fair wear and tear given her age. She was 42 at the date of the second accident.

26. Clearly, the prolapse, which the board based itself on, would be suggestive of far greater disability when compared to soft tissue damage; in layman's terms, a back sprain which one might expect to resolve itself with rest over a period of time.

27. It should also not be forgotten that I have heard evidence from the applicant herself who I found to be basically a decent and honest lady although perhaps prone to some exaggeration which was also detected by the physiotherapist who tested her as well as by Dr Chiang. Much of this is caused, in my view, by an anxiety on her part to make clear to those treating her and to the court that her injuries and their effects were real and debilitating rather than an active attempt to mislead or present a materially false picture.

28. There is no doubt that there is independent evidence from the MRI scans which is capable of supporting a conclusion of a disc prolapse. Again, it is worth noting that Dr Chiang's view is based on an examination in November 2001 whereas the board's opinion came in August the following year, some nine months later. I do not think I am able to disturb their conclusion that the disc prolapse was caused by this fall which is also a conclusion supported by the other medical reports.

29. In such circumstances, 8 per cent would be a correct assessment rather than this small percentage applied by Dr Chiang who only found soft tissue injury. The award therefore must be calculated on that higher percentage which comes to $67,875.84 plus interest. Accordingly, the respondents' appeal against this certificate must also be dismissed.

30. Appropriate credit will need to be given for what the applicant has already received by way of periodical payments, and if need be, I can say something more about that, although I would have thought that the parties' solicitors would be able to do the arithmetic themselves.

31. The respondents also have a separate concern of their own which is an apportionment of the loss attributable to each accident. This has a practical effect because they can seek an indemnity from the driver of the car that collided with the respondents' minibus and from his employers in respect of the first accident. The more that the applicant's losses are inclined towards that accident, the more they are able to be indemnified by the tortfeasors.

32. This proportion is not necessarily in the same proportion to the losses of earning capacity found by the two assessment boards. In the course of the argument, I had considered with Mr Lim, who appears for the respondents, whether I might make a "declaration" to that effect which would be quite separate from the award of compensation.

33. Having reflected on this further, I do not believe that I properly can. My task has been a very limited one in this case, addressing the applicant's loss of earning capacity based on the provisions of the Employees Compensation Ordinance. Far wider considerations come into play in making the sort of assessment that Mr Lim asks me to make. I do not think I can or should go down that road. At the end of the day, this must be for the judge hearing the common law claim based on all the evidence which is led before him.

34. Different criteria must be applied to a broader range of issues that will need to be addressed. So I regret that I must disappoint Mr Lim and his clients in this regard.

35. I will now hear the parties on interests and costs, as well as the question of the applicant giving credit for what she has already received, if that is necessary.

(Discussion on interest and costs)

36. The Respondent will pay the Applicant's costs. "Look, Mr Miller, thank you for this. I do have sympathy for you but this one really does fall into the category of the sometimes unimpressive rough and tumble of litigation. I am sorry, but I think the case really does fall into that broad bracket and the usual order following hostile litigation will go, I am afraid. Party and party, certificate for counsel for the respondents, and I will say for the assistance of the Taxing Master, half of the trial time has been devoted to each application, and then there will be liberty to restore on the question of allocation of sick pay if need be."