LEE KWOK SING v. RELIANCE SECURITY LTD

DCEC 71/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 71 OF 2007

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J U D G M E N T

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Background

1.  This is a claim for employees’ compensation brought by Mr. Lee relating to an accident which took place on 23 January 2005.  Judgment on liability was entered on 11 April 2007. The hearing before me was for assessment of the compensation payable to him.

2.  Mr. Lee was employed by the Respondent as a security guard. He was aged 45 at the time of the accident. On 23 January 2005, Mr. Lee was carrying out patrolling duties in the course of his employment, when he slipped and fell from a flight of stairs from the 7th floor to the 8th floor of a building. He sustained severe head injury as a result, with skull fracture and cerebral haemorrhage.

3.  There is no serious dispute between the parties as to the injuries sustained by Mr. Lee. The medical experts appointed by the parties are in substantial agreement. The psychiatric experts agree that Mr. Lee suffers from post-concussional syndrome directly caused by the accident. The severity of the symptoms is at the upper end of the mild range. The experts agree that Mr. Lee's cognitive and intellectual functioning was impaired, but that such impairment is compatible with most useful functions. They agree that Mr. Lee's residual symptoms are likely to be permanent, but that he should continue to be assessed and counselled by a clinical psychologist for another 2 years.

4.  The neurological experts agree that Mr. Lee suffered cerebral trauma, described by Dr. Kan to be significant and by Dr. Yu as moderate. There was skull fracture, cerebral contusion, loss of consciousness, intracranial haemorrhage, and loss of brain tissue. Following the injury, Mr. Lee suffers from cognitive impairment, weakness in the upper and lower limbs, headache and dizziness, as well as hearing impairment in the left ear.

5.  It is not disputed that Mr. Lee had a pre-existing condition known as myotonic dystrophy, which is a hereditary and progressive disease affecting the muscle. The medical experts agree that in their assessment of Mr. Lee's impairments arising from the accident, his pre-existing myotonic dystrophy has to be taken into consideration. It was pointed out that the disease is naturally progressive and affects both the intellect as well as the motor power of the person's limbs and trunk. Dr. Kan pointed out in his report that the progression of the myotonic dystrophy is very slow and gradual, although this is challenged by the Respondent.

6.  Dr. Ho, the psychiatric expert appointed by the Respondent, pointed out that purely from the psychiatric perspective, Mr. Lee is considered capable of returning to his job prior to the accident. Dr. Yu also considered that the post-concussional syndrome would not deter Mr. Lee from resuming his work as a security guard, with mildly compromised work capacity.   However, the experts agree that Mr. Lee will not be able to return to his pre-accident employment as a security guard because of his physical disabilities, and in particular the weakness in his limbs.

7.    Mr. Lee was assessed by the Employees' Compensation (Ordinary Assessment) Board ("Board") in July and November 2007. The Board considered that Mr. Lee suffered a head injury with skull fracture and traumatic cerebral haemorrhage resulting in mental impairment, upper extremities impairment and gait disorder. The period of sick leave certified to be necessary as a result of the injury was from 24 January 2005 to 21 November 2007. Mr. Lee's loss of earning capacity permanently caused by the injury was certified to be 13 %.

8.  Mr. Lee appeals against the assessment made by the Board.

9.  The parties are in agreement that Mr. Lee’s earnings at the time of the accident were $5,300.

The amount of compensation payable

Loss of earning capacity

10.     The issue of whether Mr. Lee suffers partial or total incapacity is essentially a question of fact which the Court has to decide on the evidence before it. Mr. Lee was assessed by the Board to have suffered 13 % permanent loss of earning capacity.   The Board gives no reasons for its assessment, and in Chan Kam v. Standard Chartered Bank Hong Kong Trustee Ltd. [1991] 2 HKLR 455, the guidance given by the Court of Appeal in relation to the approach of the Court on an appeal from the Board's assessment is that the Court judges the assessment by testing the validity of the Board's conclusions against the total available evidence. 

11.   Mr. Lee was 45 years old at the time of the accident. He has only received education up to primary six, and did not complete form one. As highlighted by Dr. Kan in his report, Mr. Lee had never been noted for his intelligence even before the accident, as he had been described by his mother as dull and not smart as a child.  Dr. Yu also pointed out that myotonic dystrophy is known to be associated with mild mental retardation. Dr. Yu considered that in assessing Mr. Lee's cognitive impairment as a result of the accident, allowance should be made for the fact that Mr. Lee was not intellectually gifted even prior to the accident.

12.  After completing his primary school education, Mr. Lee worked as an apprentice in jet-painting, and then as a warehouse clerk with the same employer, doing manual work. He worked with this employer for 25 years, before he was made redundant. He received a retraining course to work as a security guard, and worked in such capacity with the Respondent for 6 months before he met with the accident.

13.  Despite his hereditary disease, Mr. Lee was able to lead a normal and independent life and held gainful employment for 25 years until the accident. His counsel highlighted the fact that Mr. Lee was able to carry out his duties as a security guard throughout the period of his employment by the Respondent, which duties required him to walk up and down staircases once every 2 hours, 12 hours a day, 26 days a month, for over 6 months. There is no evidence that Mr. Lee was considered unfit in his work, by virtue of any deficiency in his physical or mental condition.

14.  After the accident, Mr. Lee had received physiotherapy treatment and occupational therapy. At the time of his discharge from physiotherapy treatment in September 2005, Mr. Lee was recorded to have been able to walk independently on level ground and to manage stairs with handrail support. He could cover 10 m of level ground walking in 12 seconds with a gait speed of 50 m/min. His physiotherapist advised that his capacity was not able to match the requirement of his original job as a security guard. There was no marked progress in Mr. Lee's physical performance since September 2005, despite extensive occupational therapy. In fact, there was a gradual deterioration since December 2005, when Mr. Lee started to have repeated falls. His hand dexterity was recorded to be poor, and he continued to have moderate symptoms of headache, dizziness and tiredness. He remained mildly impaired in speech repetition and in every day memory.

15.  At the time of the joint examination by Dr. Kan and Dr. Yu in June 2009, Mr. Lee still complained of intermittent headaches and dizziness of moderate intensity. The hearing of his left ear was impaired by about 30%. Mr. Lee claimed that he could carry weights for a few steps only, could walk for 15 minutes on level ground with a cane, and could only manage stairs by holding onto the railing. Dr. Kan and Dr. Yu found weakness in the proximal and distal muscles of his upper limbs, and significantly weak distal muscles in the lower limbs. They noted that Mr. Lee walked with a gait due to weakness of foot dorsiflexion and plantar flexion. The examination also confirmed that Mr. Lee had moderate dysarthia, and that his neck muscles were weak.

16.   It was also recorded in the joint report of Dr. Law and Dr. Ho that by Mr. Lee's account when he was examined in June 2009, he was only able then to walk for 10 to 15 minutes with support from the furniture or handrails in his flat, and that he needed the wheelchair and the companionship of his mother when he went outdoors, which was seldom.

17.  By the time of the hearing for assessment, Mr. Lee's evidence is that he had to use a cane for walking, or would rely on handrails for support. He could only walk a few steps up the staircase, and had to use a taxi when he went out, as he needed to use a wheelchair.

18.  I accept, as the other medical experts did, that Mr. Lee is truthful about his symptoms and disabilities and has not exaggerated his claims. From all the evidence, it is clear that by reason of the weakness of Mr. Lee's limbs, due partly or entirely to myotonic dystrophy, he is simply not able to return to his pre-accident employment as a security guard. Taking into consideration the special circumstances of Mr. Lee's case, including his significant walking difficulties, his mental and intellectual impairment, his education level, his lack of work experience and training other than as a manual worker and as a security guard, I am satisfied that it is extremely unlikely that he would be able to find gainful employment in his current condition. Thus, the Board's conclusion that Mr. Lee only suffers a 13% permanent loss of earning capacity is not realistic when all the evidence and circumstances are considered.

19.   It is clear from the decision of the Court of Final Appeal in LKK Trans Ltd. v. Wong Hoi Chung [2006] 9 HKCFAR 103 that when an employee's incapacity was caused by both a work-related injury and a pre-existing disease, compensation should not be limited by apportioning incapacity attributable solely to the injury as distinct from the disease. This is founded on the clear objectives of the Ordinance, being the provision of quick financial relief to employees incapacitated by work-related injury, regardless of any fault on the part of the employer. The injury need not be the sole cause of the employee's incapacity, before liability can arise under the Ordinance.

20.  Here, there is clearly a causal connection between the head injury and the consequent post-concussional syndrome and the cognitive impairment suffered by Mr. Lee. Dr. Yu also confirms that Mr. Lee's left-sided deafness is a result of the head injury. The experts only consider that Mr. Lee's limb weakness is due to the progression of his muscle disease, although Dr. Kan considers that Mr. Lee's inability to carry weight with his arms is also related to the injury (paragraph 15(b) of the joint report of 31 July 2009).

21.  Counsel for the Respondent submits that as there is no causal connection at all between the limb weakness and the accident, LKK Trans Ltd. is distinguishable.

22.  Dr. Kan has pointed out in his report that myotonic dystrophy is a disease which progresses very slowly and gradually. He highlighted the fact that prior to the accident, Mr. Lee had led an independent life and was able to work for over 20 years with the same employer. That suggested to Dr. Kan that Mr. Lee had possessed and maintained a working level of intellectual and emotional aptitude for all these years, and that having worked as a manual worker for over 20 years, Mr. Lee's motor power and balance must have been reasonably preserved despite the myotonic dystrophy. Comparing Mr. Lee's neurological status before and after the accident, Dr. Kan pointed out that the precipitous drop in Mr. Lee's physical performance should be trauma related, and concluded that the symptoms that only began to appear in Mr. Lee after the accident can safely be considered to be the consequence of the injury.

23.  I agree with Dr. Kan's conclusions, and accept that Mr. Lee's physical disabilities, including his limb weakness, are at least partly caused or triggered by the accident.

24.  Moreover, it cannot be disputed that Mr. Lee is now substantially reliant on his wheelchair and has entirely lost his ability to obtain gainful employment in the markets available to him, by reason of the combined effects of the injuries he sustained as a result of the accident and the special circumstances of his progressive muscle disease, his intellect and his lack of education and training.

25.  The Court of Appeal recognizes in the case of Chan Kam v. Standard Chartered Bank Hong Kong Trustee Ltd., supra, that considerations of an employee's permanent total incapacity under s.7 of the Employees’ Compensation Ordinance and of an employee's permanent partial incapacity under s. 9 (1A) of the Ordinance can produce the same result when the injured employee's special circumstances lead the court to conclude that the employee has suffered 100% incapacity. On the facts and evidence in this case, bearing in mind Mr. Lee's special circumstances, assessment of Mr. Lee's compensation under the Paper Mills formula would produce the result that he suffers 100% loss of his pre-accident wages and earning capacity. Accordingly, the award for Mr. Lee's loss of earning capacity, whether under s.7 or s.9 (1A) of the Ordinance, comes to $381,600 ($5,300 x 72 months).

Section 8

26.  Essentially, Mr. Lee's case is that due to the weakness in his lower limbs, he cannot walk for long periods of time and is prone to fall. He had had 2 accidents in 2006 as a result of falling. Because of the weakness in his upper limbs, he had difficulties standing up from a chair or from his wheelchair, due to inadequate support. Altogether, his limb weakness, constant headaches and dizziness and improper balance require him to use a wheelchair, and further require his mother to look after him and to accompany him when he went out to see a doctor or for exercise.

27.  As elaborated in the earlier parts of my Judgment, I accept that the weakness in Mr. Lee's limbs are partly caused by the accident. Moreover, although all the medical experts agree that despite Mr. Lee's cognitive impairment, he is capable of most useful functions and able to assume the usual roles in life, I would accept that, applying simple common sense, Mr. Lee's impaired concentration and memory, and his forgetfulness as caused by the accident (and as the medical experts accept), coupled with his motor impairments, would reasonably require constant care and attention to be provided for him. His mother is already elderly, and may not be able to give Mr. Lee all the care that he needs.

28.  Being satisfied that there is a causal connection between the weakness in the limbs and the accident, the approach of the Court of Final Appeal in LKK Trans Ltd. must apply to considerations under s. 8 of the Ordinance, and it is inappropriate for the Court to apportion liability for care and attention between incapacity attributable to the injury, and incapacity attributable to the pre-existing disease.

29.  Accordingly, I will allow Mr. Lee's claim for the costs of care and attention under s.8, to the maximum amount of $412,000.

Section 10

30.  Form 9 issued by the Board on 5 December 2007 certifies a period of absence from duty from 24 January 2005 to 21 November 2007. This period of absence is deemed under s.10 (2) of the Ordinance to be Mr. Lee's period of total temporary incapacity, and I am in any event satisfied on the evidence that the period of incapacity results from the injuries caused by the accident.

31.  I allow the claim of $146,448, representing the 4/5 sick leave pay for the entire period, on the basis of the wages of $5,300 at the time of the accident and the annual increases agreed to by the Respondent.

Section 10A

32.    As agreed, I allow Mr. Lee’s claim for medical expenses in the total sum of $18,499.

Conclusion

33.    The total compensation payable to Mr. Lee is:

(1) compensation for permanent incapacity	$ 381,600
(2) compensation for temporary incapacity	$ 146,448
(3) compensation for care and attention	$ 412,000
(3) medical expenses	$  18,499
	$ 958,547
Less Paid :	$ 107,880
Total :	$ 850,667

34.  Mr. Lee is entitled to interest on the sum of $850,667 at half judgment rate from the date of the accident, i.e. 23 January 2005, to the date of assessment.  I will also make a costs order nisi, to be made absolute in 14 days, that the costs of the action, to be taxed if not agreed, are to be paid by the Respondent, with certificate for counsel. Mr. Lee's own costs are to be taxed in accordance with the Legal Aid Regulations.