LAU KA SHUI v. YIU WING CONSTRUCTION CO LTD AND ANOTHER

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

TSUEN WAN EMPLOYEES' COMPENSATION CASE NO.129 OF 1990

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BETWEEN

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JUDGMENT

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Background

1. The Applicant seeks compensation under the Employees' Compensation Ordinance ("the Ordinance").

2. On 29th May 1989, in the course of his employment, the Applicant fell from the 1st floor of a building, which was under construction, to the ground floor. He was 34 . years of age. He sustained serious injuries. He suffered a fracture dislocation of his cervical vertebra at C6 and 7 and ended up in quadriplegia. He is now unable to move his two lower limbs and he can only use his left hand for holding objects. He has not resumed work since the accident. The Respondents conceded liability and also conceded that the Applicant is suffering from 100% loss of earning capacity and the compensation recoverable under section 7 of the Ordinance is the maximum of $394,000.00. It was further agreed that the medical expenses recoverable by the Applicant under Section 10A of the Ordinance is $10,130.00 and that the Applicant had received periodical payment from the Respondents in the sum of $108,000.00 which is to be deducted from the final award.

3. The only issues I have to decide is how many days in a month did the Applicant work before the accident so as to calculate his monthly earning under Section 10 of the Ordinance and whether he is entitled to compensation for constant attention under Section 8 of the Ordinance. The parties further agreed that because of the date of accident, the amount of compensation would be calculated on the amount set out in the Ordinance before its amendment in 1989.

Compensation under Section 10

4. The Applicant was a steel bar binding worker at construction sites. He had been working as such for more than 6 years. It was his first day at the construction site in question when the accident occurred. He earned $410 per day. In the month preceding the accident he worked for 28 to 29 days. He said he worked 7 days a week and only stopped working during heavy rain. He was paid about $11,000 per month and was paid on a daily basis. He worked for different contractors at different construction sites. He also received overtime pay on top of the sum of $11,000.

5. The Notice by Employer of an Accident (Form 2) stated that the average working days per month of the Applicant was 28 days. However, Wong Mui Hing, the representative of the lst Respondent who completed the forms, stated in evidence that she was not sure about the actual working days of the Applicant. She said she put down 28 days because in her experience the workers would complain if some lesser days were recorded in the Notice.

6. According to the 2nd Respondent, who was a steel work sub-contractor and who employed the Applicant at the site, the average working days at that construction site for a permanent casual worker was 22-23 days. He said that the steel binding workers could not work on some days because of the other type of building works that was being carried out at the site. He was not clear how many days the Applicant would work. The Applicant was a daily casual worker. The 2nd Respondent said that in 1989 the construction market was ordinary. There was work at his site for half of the month.

7. As the Applicant had only worked at the site for one day when the accident occurred, the particulars given in the Notice regarding the working days might not be accurate. I accept that Wong Mui Hing was not aware of the actual average working days of the Applicant and she put down 28 days because of her worry about the complaints by the workers. Although the 2nd Respondent said that a permanent casual worker would work on average 22-23 days at his site, the Applicant was not a permanent casual worker. He was a daily casual worker. While the working days of such a worker may depend on the work available, his evidence concerning his working days was not challenged or all. I find him to a truthful witness and I accept his evidence that he worked 7 days a week and would only stop when there was heavy rain. I accept that he worked on average 28 days per month before the accident. I find that he earned $11,480 per month based on 28 days at $410 per day. The maximum compensation under Section 10 of the Ordinance is $11,480 x 24 months x 2/3 = $183,680 which I shall award to the Applicant.

Compensation under Section 8

8. The next issue I have to decide is whether the Applicant is entitled to compensation for constant care and attention.

9. The Applicant is now confined to a wheelchair. He cannot move his lower limbs. One upper limb is functional but is extremely weak. He suffers from bowel and urinary incontinence. Apart from being able to pick up a spoon to feed himself, he can hardly put on his shirt. He can not put on his trousers, underpants, shoes or socks. He suffers from bed sores and needs help to clean himself.

10. Dr. Yeung Po Sun recommended that a part time nurse or someone who could mobilize the Applicant's limbs and dress his bed sores should be employed to look after the Applicant. He said such a nurse would cost $300 - $500 per eight hours shift. It is cheaper to have a nurse at home. Dr. Yeung said that the life expectancy of the Applicant is 20 years. Dr. Yeung said that there is no prospect of the Applicant recovering from his injuries.

11. A servant was previously employed to look after the Applicant. She worked from 7 a.m. - 7 p.m. The servant was paid $3,000 per month. The Applicant's wife also helped him to defecate, bath, change his diaper, change his clothes and turned his body at night. For the past six months, the Applicant has been staying in the Caritas Hospital. He was admitted to the Caritas Hospital in April to carry out an operation on his bed sores. The Applicant and his family were sharing a flat with another household but the landlord would no longer let the Applicant live in the flat because of the use of the wheelchair. At the recommendation of the doctors, application was made for the Applicant to be admitted to the Care and Attention Home (the "Home") in Shatin. The result of the application is not yet known. There is nursing and physiotherapy treatment available at the Home. The Applicant's wife said that it is against her husband's wish to be sent to the Home. She said if she received money from the claim, she would move to another home so that the family could stay together.

12. Miss Yen, solicitor for the Respondents submitted that the Applicant could find whatever care and attention he might need at the Home and since the Applicant had not adduced any evidence as to the fees of the Home, he could not recover compensation under this head.

13. Section 8(1) of Ordinance is as follows :

"Where permanent total incapacity which results from the injury is of such a nature that the employee is unable to perform the essential actions of life, without the constant attention of another person, in addition to any compensation under the other provisions of this Ordinance, such compensation as the Court considers necessary to meet the costs of such constant attention shall be payable under this section."

14. In construing this section, reference may be made to Section 61(1) of the English Social Securities Act 1975 which provided that :

"Where a disablement pension is payable in respect of an assessment of 100%, then, if as a result of the relevant loss of faculty the beneficiary requires constant attendance, the weekly rate of pension shall be increased by an amount determined in accordance with regulations by reference to the extent and nature of the attendance required by the beneficiary."

15. As a condition for claiming this entitlement, Regulation 19 of the Social Security (General Benefit) Regulations 1982 provided that the claimant must be

"to a substantial extent dependant on [constant] attendance for the necessities of life and is likely to remain so depended for a prolonged period."

16. Lewis in Compensation for Industrial Injury stated at page 159 that neither these words nor the other conditions of payment have received interpretation from any British Social Security Commissioners or the courts. He referred to appendix 3 of the Industrial Injuries Handbook for Adjudicating Medical Authorities (3rd Edition 1986) ("the Medical Handbook") issued by the Department of Health and Social Security which provided that

                "The phrase 'the ordinary necessities of life' is interpreted liberally. It clearly includes eating, drinking and natural functions, but in addition an applicant can expect to have a reasonable degree of physical and mental comfort. The nature of the disability itself may create special needs for help e.g. frequent feeding, attention for bed sores, incontinence, vomiting, insomnia. The allowance is not granted however in respect of help in housework or other purely domestic purposes, or for only slight intermittent attendance such as help in dressing or undressing".

17. Lewis further stated that,

"The Medical Handbook also suggests that a 'prolonged period' is one that lasts for at least 6 months. The words of the regulation do not seem to require that the claimant should actually receive attendance, but only that the claimant be dependent upon on. Although the provision of attendance is some evidence of the need for it, severely disabled claimant should not be refused because they live on their own. Nor will the fact that the attendance is provided by a spouse or other relative prejudice a claim, for the attendance need not come from outside."

18. I shall take these factors into consideration in construing Section 8 of the Ordinance. If by reason of the permanent total incapacity of the applicant, special attention is required such as helping him with his urination or bowel movements or attending to his bed sores, then the costs for such help is recoverable under this section. By the wording of the section, such help must not be of an intermittent nature. Further, the allowance is not granted in respect of help in housework or other purely domestic purposes. It is, however, not necessary that the applicant should actually be receiving the attention and an award would be made even if the applicant is being looked after by a spouse or other relative. The only restriction is provided by Section 8(3) which prohibits the payment of compensation during the period when the applicant is receiving free medical treatment as an in-patient in a hospital or otherwise.

19. In the present case, the Applicant is suffering from permanent total incapacity and is clearly unable to perform the essential actions of life. Apart from being confined to a wheelchair, he would require help to attend to his bed sores and bowel movements. The medical evidence revealed that there is no prospect of the Applicant being able to recover from his injuries and he would require constant attention of another person to perform the essential actions of life. His entitlement to the compensation under Section 8(1) should not be prejudiced by the possibility of him being admitted to the Home, which, in my view, would necessarily be a short term arrangement. The Applicant's wife had clearly stated that it is not the Applicant wish to be admitted to such home and she would find a better accommodation so that the family could live together when she receive compensation from the claim.

20. The maximum amount of compensation under Section 8 is $158,000.00. Considering the life span of 20 years of the Applicant during which he would require constant attention, the statutory limit of the compensation under Section 8 is still below the actual costs of hiring such a help whether one adopts the figure of $3,000 per month which is the costs of hiring a servant or $300 per day which is the costs of hiring a nurse. I shall award the Applicant with the maximum amount under Section 8.

21. The compensation that the Applicant is entitled is

22. The total amount is $745,810 and from which $108,000 is to be deducted leaving a balance of $637,810.

23. I shall give judgment to the Applicant in the sum of $637,810 together with interest at 6.26% per annum from 29th May 1989 to date of judgment and thereafter at judgment rate until payment. The Respondents shall pay the Applicant the costs of the application to be taxed if not agreed. The Applicant's own costs to be taxed in accordance with Legal Aid Regulations.