MOHAMMAD-RIASAT v. CHUNG YIU MAN t/a MAN ON TYRE REPAIRING

DCEC908/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 908 OF 1999

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J U D G M E N T

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1. This is a hearing on the assessment of damages. On the application of the applicant under sections 9, 10 and 10A of the Employees' Compensation Ordinance, Cap. 282, the applicant applies for compensation under the application.

2. The hearing on both liability and quantum was originally to take place on 27 to 31 March 2003. The hearing took place before Deputy Judge Ng (as she then was). At that hearing, on the request of the applicant's counsel, with the consent of the respondent's then legal representative, the trial was split into two, the first part being the hearing on the matter as to liability. As to the matter of quantum, it was adjourned to be heard on 12 January 2004.

3. The issue of liability was heard and decided by Judge Ng, DJ, who handed down her judgment on 7 April 2003. In her judgment dated 7 April 2003, she found the respondent liable to the applicant under sections 9, 10 and 10A of the Ordinance. She further found that the applicant's salary was $12,000 per month paid by the respondent. Therefore, at the hearing before me for the assessment of damages, not only was the issue on liability fully decided and adjudicated, the matter as to the monthly salary paid by the respondent to the applicant had been decided and adjudicated on. At the hearing before me, the only issue remaining is the assessment of the quantum of the compensation.

4. The respondent appeared in person before me on 12 January 2004. He objected to the applicant's claim and alleged that the applicant was making a false claim by pretending that his back was hurting more than it actually is.

5. As Judge Ng had set out the full facts and made full findings of fact on liability, setting out the background of the accident and the circumstances of the employment of the applicant by the respondent, I shall not repeat the evidence and background here. I shall simply mention that the accident arose out of and in the course of the employment by the respondent of the applicant as an assistant in his workshop. The respondent's business is called Man On Tyre Repair. His address was at G/F, 180B Hang Wai Industrial Centre, 6 Kin Tai Street, Tuen Mun.

6. The applicant began working for the respondent as a car mechanic on 23 September 1998, he worked for the respondent until 13 March 1999.

7. The applicant was born on 27 February 1974 in Pakistan, at the time of the accident in 1999 he was 25 years of age. He is now 29 years of age.

8. The accident occurred while the applicant was repairing a tyre of a 16 tonne lorry. He slipped and fell, and injured his back.

9. At the assessment of damages, I am asked to assess the quantum of compensation, including the degree of permanent loss of earning capacity suffered by the applicant.

10. The applicant appealed against the Certificate of Review by the Assessment Board under the Employees' Compensation Ordinance, section 16F. The Board had assessed the degree of the applicant's loss of earning capacity as 5 per cent. This is the item subject of his appeal. The applicant accepts the number of days of sick leave certified by the Assessment Board.

11. At the invitation of the parties, Judge Ng in her judgment also dealt with the issue of the applicant's earnings from the employment of the applicant by the respondent which, as I said, she had adjudicated to be $12,000 per month. Further, Judge Ng also accepted the applicant had consulted for treatment Dr James Wong after the accident and he had paid Dr Wong a fee of $220 on 15 March 1999. She also accepted that the applicant was sent by the respondent to a bonesetter on 13 March 1999. This was immediately after the accident took place. He visited the bonesetter again on 14 March 1999 and he paid a total of $300 to the bonesetter for the two visits. These findings can be found on pages 14 and 15 of Judge Ng's judgment, which appears on page 41 of the supplemental bundle.

12. At the present hearing, the respondent, acting in person, made the same allegations. One of the allegations was made before Judge Ng that the applicant was only a casual worker, not a permanent worker. However, in Judge Ng's judgment, it is clear that the respondent's then legal representative had conceded at that hearing that the respondent was the applicant's employer at the material time.

13. Judge Ng further held that the term "employee" under section 2(1) of the Ordinance does not exclude a casual worker employed for the purpose of the employee's trade. She found also that the applicant was injured in the course of the employment and the accident had arisen out of the employment. (This can be found at page 42 of the supplemental bundle of that judgment.)

14. In my assessment of damages under sections 9, 10 and 10A of the Ordinance, I have to consider the physical condition and any permanent injuries to the applicant and the evidence of the sick leave and his loss of earning capacity.

15. The respondent at the hearing accused the applicant of exaggerating his back pain, the respondent claimed repeatedly that back pain is undetectable. He accused and challenged Dr Au Ka Kau for failing to show and prove that the applicant's back pain existed.

16. The applicant called Dr Au Ka Kau to give evidence on behalf of the applicant. Dr Au had examined the applicant and had prepared a medical report on the applicant. He explained, upon the respondent's challenging him to show and prove the existence of the applicant's back pain, with the support of the x-ray report and his own conclusion upon examination of the applicant based on the medical records from Tuen Mun Hospital, including those of the Accident and Emergency Department and the Department of Orthopaedic and Traumology where the applicant received treatment soon after the accident. Dr Au had also studied the physiotherapy and the x-ray reports.

17. Basing on his own findings at the examination of the applicant and the x-ray report ordered by Dr Au on the applicant, Dr Au confirmed the findings of the doctors at Tuen Mun Hospital. It is his conclusion upon the findings in these reports that the applicant had suffered a supero-anterior fracture of the L4 vertebra of the spine. It is Dr Au's conclusion that it is unfortunate the applicant's fracture failed to unite, and thus it is expected, Dr Au found, that the applicant would experience more pain than otherwise.

18. Dr Au also confirmed that after examining the applicant, he found there was muscle spasm over the right paraspinal muscle and there is limitation of the lumbar spinal movement. Dr Au recommended the applicant should avoid strenuous exertion of his back, and he said that he anticipated that the applicant will have exacerbation of his back symptoms with exertion. He also suggested that the applicant would have to resolve to rest and use painkillers to help to ease his pain. For those reasons, Dr Au considered the applicant would only be suitable to take up light and sedentary work such as an office assistant, cashier, cleaning worker or security guard.

19. As the respondent did not call any medical expert evidence and there is no evidence to contradict the applicant's claimed condition, the court has only the applicant's evidence to base its assessment on. Based on the evidence of the applicant himself, supported by the medical evidence of Dr Au, I accept Dr Au to be a very experienced orthopaedic and he has given a balanced and expert view and reported on the applicant's condition. I also accept the applicant's own evidence on his physical condition after the accident.

20. Based on the aforesaid findings, I accept Dr Au's opinion that the applicant's loss of earning capacity suffered is 8 per cent rather than the Medical Assessment Board's 5 per cent assessment.

21. The applicant's legal representative, Miss Mok, produced figures based on the quarterly report on wage statistics compiled by the Hong Kong Government for September 1999, and she used the wages of a security guard compared to the wage that he was earning while working for the respondent, and after that comparison she found there is a 35 per cent loss of earnings. She asks for a compensation of loss of earning capacity based on the loss of earnings of 35 per cent. By doing this, she has adopted the Hong Kong Paper Mill Limited case formula. The Hong Kong Paper Mill Limited case is reported in [1982] HKC 556 as modified by the case of Lui Kwong-yan [1993] HKLJ 299.

22. I find this method of calculation tends to be misleading, the reason being, it is based on the hypothetical situation. In the present case, applying it would mean that one has to apply a hypothetical monthly wage of the applicant, and further, it does not take into account that in recent years after 1997 wages have been continuously adjusted downward following the fall of the economy in Hong Kong. Had the job market been in 1999 and 2003 and 2004 been more steady, the formula may make more sense, but in the present day and age, with the economy in deflation instead of inflation, it is not realistic to apply the formula in the present case, and particularly, when the adoption of the wages of $7,781 per month is a security guard's salary rather than the actual wage earned by the applicant.

23. I find the alternative method of calculation to be more appropriate and is more commonly used in these courts. This is the calculation of using the $12,000 a month and the loss of earning capacity of 8 per cent, multiplied by 96, under section 9. The total comes to $92,160.

24. As to section 10, sick leave as certified by the Medical Assessment Board to be 141 days, and the calculation is:

$12,000 x 141 days / 30 x	4	= $45,120.
	5

25. As to section 10A, I am satisfied the medical expenses paid by the applicant as supported by the medical receipts and chits, the total comes to $2,453.

26. In conclusion, under section 9, an award of $92,160; under section 10, $45,120; under section 10A, $2,453.

$92,160
$45,120
$2,453
$139,733

27. Interest on the compensation under sections 9, 10 and 10A shall be payable from the date of service of the application at half judgment rate until the date of judgment, and thereafter at judgment rate until full payment. Costs to the applicant to be taxed if not agreed, and the applicant's own costs to be taxed in accordance with the Legal Aid Regulations.