HAIDER ALI v. SUPREME LAUNDRY LTD

DCEC 1937/2016

[2019] HKDC 1600

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1937 OF 2016

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JUDGMENT

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Introduction

1.  The applicant was employed by the respondent (which is a company whose officers have all resigned and have not taken part in these proceedings) as a laundry worker since about early June 2014 until February 2015 and he resumed working for the respondent again in about August 2015 until he had an accident on 2 October 2015 during work. The applicant was pulling a trolley filled with wet bed sheets, weighing around 150-200 kg.  The bottom of the trolley consists of a metal strip which somehow hit the right ankle of the applicant when he was pulling the trolley to the drying area (“the Accident”).  As a result, he sustained injuries and had undergone surgery, with resultant pain and suffering.

2.  Interlocutory judgment on liability was entered on 26 July 2019.  This is a hearing for assessment of damages.

3.  Hearing of this case for the purpose of assessment of compensation was scheduled for 4 October 2019. Shortly before the start of the hearing on that day, respondent’s name was called by a court clerk but there was no response.  Thus, the hearing was conducted in the absence of the respondent company, which all along, as confirmed by those acting for the applicant, has not taken part in these proceedings despite having been duly served with notice of these and each preceding proceeding, according to those acting for the applicant.

4.  At the start of the hearing on 4 October 2019, bearing in mind that the respondent not taken part in these proceedings and there is a possibility that the compensation claimed would not be paid by the respondent or its insurer, in reply to the enquiry made by the court, Mr Henson Lam, the solicitor for the applicant, confirmed that the Employees Compensation Assistance Fund Board (“ECAB”) was notified of these proceedings back on 5 September 2016 pursuant to section 25B(1)(a) of the Employees’ Compensation Assistance Ordinance (Cap 365).

5.  By a Form 7 certificate (“Form 7”) issued by the Medical Assessment Board (“MAB”) of the Labour Department, which conducted the assessment on 9 February 2017, the MAB assessed 1 percent for the loss of earning capacity permanently caused by the injury, which is “right leg injury resulting in right ankle pain and stiffness”.

6.  In this hearing, the applicant seeks to:-

(1)    appeal against the MAB finding of 1% loss of earning capacity in reliance of the medical expert report of Dr Lee Po Chin dated 25 June 2019; and

(2)    contend that but for the accident, he can return to his pre-accident work with earning higher than he can earn from his current job as scanner.

The factual background

7.  The applicant has been employed by the respondent on two periods, namely June 2014 to February 2015 and August 2015 to the time of accident on 2 October 2015 for about 1 year prior to the date of the accident.  The applicant was born in July 1998 and he was 17 years old at the time of the Accident.

Medical treatment received and condition

8.  In his witness statement, after the Accident, the applicant was first taken by his lady boss to the clinic of a private doctor Dr Wong Chi Kwong in Kwai Fong when the medical record shows that wound dressing was performed for right heel laceration before the applicant was referred to be treated further at the Accident & Emergency Department (“A&E Dept”) of the Princess Margaret Hospital (“PMH”).

9.  On the day after the Accident, PMH conducted an operation on the right leg of the applicant.  He was discharged 4 days later when he had to walk with two crutches for about 5 months while having to wear a long leg cast, which were entirely removed after 10 weeks. The applicant had to walk with one crutch for about 6 months.

10.  On discharge, the applicant received follow up sessions with the Department of Orthopaedics and Traumatology at PMH.  He has received 19 sessions of physiotherapy between January 2016 and June 2016.  He was granted continuous sick leave from the date of Accident on 2 October 2015 to 9 February 2017 (inclusive) for a total of 495 days.

11.  In evidence before this court, the applicant testified that he still felt pain in his right ankle after walking for about 10 minutes or walking up slopes or stairs.  He also had difficulty squatting and could not wear safety shoes.  His right ankle felts no sensation during cold weather.

12.  After sick leave, the applicant started work as a helper and scanner in April 2017, earning HK$60 per hour for 12 hours per day for 26 days a month, earning on average HK$17,000 per month.  Had it not been for the accident, the applicant said that he could have continued working as a laundry worker earning HK$17,500 to HK$19,800, ie averaging HK$18,650 per month (Paragraph 15 of the Applicant’s Witness Statement).

13.  Dr Lee Po Chin, FRCS (Glasgow), FRACS, FHKCOS, FHKAM (Orthopaedic Surgery), examined the applicant on 9 May 2019 and in a detailed report, concluded, inter alia, as follows:-

“5.      The objective findings at the examination are consistent with a healed Tendo Achilles. There is slight limitation of right ankle movements in all directions. There is slight weakness of the Tendo Achilles in the right calf girth is 0.5 cm less than that of the left side. There is probably some residual pain due to scarring around the tendon. However, the difference in calf girth is still within the normal acceptable variation between limbs especially when Mr. Haider is left hand dominant. The negative Thomas Test suggested that the Tendon Achilles had healed.

6.      Mr. Haider’s condition has reached the stage of maximal medical recovery. Further treatment is not necessary. Mr. Haider will continue to benefit from strengthening of the right calf muscles and mobilizing his ankle joint. The clinical findings at the examination suggested a healed Tendon Achilles. An MRI will be useful to confirm that the Tendon Achilles has healed.

7.      Mr. Haider should be able to return to work as a laundry worker with some impairment in work efficiency. His current job as a warehouse worker at DHL is also appropriate and is associated with less impairment in work efficiency.

8.      The sick leave given is within reasonable limits.

9.      For parties’ reference, Mr. Haider suffered from 2% impairment of the whole person based on residual pain and stiffness after a healed repaired Tendon Achilles with slight limitation in movements of the right ankle.  The loss of earning capacity is 3%”

Discussion and findings

14.  The injury sustained by the applicant is not set out in Schedule 1 of the Employees’ Compensation Ordinance (“ECO”).  Accordingly, s 9(1) (b) of the ECO is applicable.

15.  In light of the evidence of Dr Lee Po Chin, which I accept, I am prepared to allow the appeal against the 1% assessment of loss of earning capacity and assess the same to be 3%.  Also, I accept the evidence of the applicant that he would have been able to earn on average HK$18,650 per month had he been not incapacitated by the accident.

16.  Accordingly, I assess Employees’ Compensation payable to the applicant arising from the accident as follows:-

(i)	Under Section 9 (1) (b):
	HK$18,650 x 3% x 96 months[1]	HK$53,712
(ii)	Under Section 10:
	HK$18,650 x
	(495 days of sick leave[2]/30) x 4/5	HK$246,180
(iii)	Under Section 10A:
	Medical expenses	HK$2,320
(iv)	Less periodic payment	(HK$72,000)
(v)	Total:	HK$230,212

Disposition

17.  I award Employees’ Compensation to the applicant in the sum of HK$230,212.

18.  There shall be interest on this award as follows:-

(a) Interest at half judgment rate from the date of the accident to the date of judgment; and

(b) Interest at judgment rate from the date of judgment until full payment by the defendant.

19.  I also award costs to the applicant, to be taxed at the District Court Scale, if not agreed.

20.  I thank Mr Henson Lam, Solicitor, of Messrs Lo, Wong & Tsui for the Applicant for his assistance to the court.