CHAU MUK CHI v. CHINAGOLD TRANSPORTATION LTD

DCEC 506/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’COMPENSATION CASE NO. 506 OF 2002

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Ruling

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The applicant claims compensation for injury suffered in an accident at work on 17 November 2000. He claims that while he was working as a stevedore the twist lock of a container got loose and struck him on the right elbow.

2. The applicant having claimed compensation under sections 9, 10 and 10A now seeks to amend his Application. He seeks to include a claim under section 7. He also seeks to include a claim for periodical payments beyond 24 months from the date of the accident. Having pleaded that he was assessed by Dr. Lee Po Chin on 23 May 2002 as suffering 5% loss of earning capacity he now seeks to plead that Dr. Lee is an orthopaedic specialist and further to plead that he was assessed by one Dr. Chu Yat Cho, a specialist in Occupational Medicine, on 7 October 2002 to have suffered 50% permanent loss of earning capacity.

3. The respondent resists all but the second amendment sought, which is the claim for extended periodical payments. It also applies for an order that the applicant be debarred from adducing the evidence of Dr. Chu at the trial.

4. There are before me the reports of Dr. Lee and Dr Chu, and a further letter written by Dr. Lee after seeing Dr. Chu's report. There is also a report by Dr. David Cheng, another orthopaedic specialist instructed by the respondent. Dr. Lee and Dr. Cheng are not far apart. Their reports show that the applicant suffered a contusion injury to the elbow which was already deformed as a result of a childhood fracture with growth distortion of the elbow joint. He complains of stiffness and intermittent pain but says he had no pain before the accident. Examination shows an impaired range of motion of the elbow, some muscle wasting, and weakness of grip of the right hand. Dr. Lee assesses his loss of earning capacity at 5% and Dr. Cheng at 4%. Dr. Chu, however, puts the permanent loss of earning capacity at 50%.

5. It is somewhat difficult to see how Dr. Chu gets to this figure. He seems to have found the applicant suffering from more pain and stiffness, on examination, than did the other specialists. He says that the "right elbow He has this to say:

"Degree of Disability Unable to perform regular occupation Unable to perform any occupation given his background, experience and education?

With reference to the captioned incident on 17 Nov 2000 and in accordance with the relevant sections and schedule of the Employees' Compensation Ordinance, permanent loss of earning capacity of 50% is recommended for significant functional impairment over the right upper limb.

There is severe functional impairment over the right upper limb. Mr. Chau is unfit to return to work as a general worker (transport) - permanently."

6. Dr. Chu says that the "right elbow was kept motionless at 90 degree flexion". He does not specifically say that there is ankylosis i.e. fixation of the elbow in the best or worst position, which would respectively give 30% and 50% loss of earning capacity under the First Schedule to the Ordinance.

7. Dr. Lee's view is that the applicant may have impaired ability to return to work as a delivery worker, but that he should be able to work as a shop vendor, light manufacturing worker or security guard.

8. Having seen Dr. Chu's report, on which he was not prepared to comment, Dr. Lee stated that in assessing loss of earning capacity he had used the guideline in the First Schedule of the Ordinance. He went on:

"The loss of earning capacity produced by ankylosis of the elbow in optimal position is 30%. Mr. Chau still retained a good functional movement of his right elbow and I therefore assessed him to suffer from 5% loss of earning capacity.

The assessment has not taken into consideration the social factor and education background of Mr. Chau. However, as his job involves lifting of very heavy weight, he probably has corresponding more significant impairment in his loss of earning capacity."

9. Dr. Cheng for his part takes the view that the applicant could go back to his pre-accident employment as a construction worker though it is possible that residue aches may cause a small reduction of working efficiency.

10. In brief, the applicant's argument is that he cannot go back to his pre-accident work as a general labourer. Because he is illiterate, that was the only work he could do. He would be unable now to take on work as a shop assistant, light manufacturing worker or security guard because of his illiteracy. The amendments, the costs of which are to be paid by the applicant would not cause prejudice to the respondent, and whether there is evidence to support them is a matter for trial. So far as the report of Dr. Chu is concerned, it is argued that the applicant is entitled to adduce it at this stage, and whether it is admissible or accepted by the court is a matter for trial.

11. The respondent's argument, in brief, is that there is no evidence of total incapacity so the amendment to include a claim under section 7 is irrelevant and unfounded. Dr. Chu is not an orthopaedic surgeon; the applicant's injury falls within the expertise of orthopaedic surgery; so Dr. Chu's evidence should not be allowed. The respondent cites the case of Li King Wing v Hong Kong Air Cargo Terminals Ltd., a personal injury case which Beeson J found Dr. Chu's evidence "not entirely apposite". Reference is also made to Wong Hin Pui v Kok Ying Kit, HCPI 763 of 1997, in which Seagroatt J expressed his strong views on the "excessive, expensive and wholly unjustified use of occupational therapists in personal injury cases". Neither case assists much here.

12. With regard to amendment of pleadings the principle is that a party should be allowed to amend wherever any consequent prejudice to the opposing party can be compensated by an order for costs. See Kwan Shiu Cheong Charles v Ferrari SpA and Anor. [1994 ]2HKC 179. The principle is the same whether Order 20 of the Rules of District Court applies or where, as here, Order of the Employees' Compensation (Rules of Court) Rules applies.

13. With regard to the admission or exclusion of expert evidence the principles are usefully set out by Chu J in Wong Hoi Fung v American International Assurance Co. (Bermuda) Ltd. & Anor, HCA 4576 of 2001 (unreported) as follows:

11) Modern judicial authorities recognize that the court has inherent power to rule on the admissibility of expert evidence at a pre-trial stage : Woodford and Ackroyd v. Burgess [2000] CP report 79, Ko Chi Keung v. Lee Ping Yan Andrew [2001] 2 HKC 63 and Annabell Kin Yee Lee & Others v. Lee Wing Kim (May Lee) & Anor (unreported), HCA9522/1997. Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse the admission of such evidence. But where the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial : Ko Chi Keung v. Lee Ping Yan Andrew (supra), at p.67 and Annabell Kin Yee Lee & Others v. Lee Wing Kim (May Lee) & Anor (supra), at p.15.

12) In deciding whether certain proposed expert evidence should be received, the relevant test has been stated to be a two-stage one. Firstly, the evidence has to be admissible as "expert evidence" for the purpose of section 58 of the Evidence Ordinance, Cap.8. Secondly, the evidence must be relevant, in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved : Barings plc (in Liquidation) & Anor v. Coopers and Lybrand & Ors, Lexis Transcript, 9 February 2001, Evans-Lombe J at paras.44-45.

14. The first amendment sought is the addition of a claim under section 7 for permanent total incapacity. This is defined in section 3 of the Ordinance as follows:

"total incapacity" means such incapacity whether of a temporary or permanent nature as incapacitates an employee for any employment which he was capable of undertaking at the time of the accident resulting in such incapacity.

15. To succeed on such a claim the applicant would have to prove that at the time of the accident he was capable only of undertaking the employment of a general labourer, that he cannot now undertake that employment, and so cannot be employed at all.

16. There is at present no evidence to support such a claim. Dr. Lee's report indicates that he is physically capable of other work. Dr. Chu's report does not assist. He says that the applicant is permanently unfit to return to work as a general worker (transport) but he does not go on to say that there is no other work which the applicant is medically fit to undertake. While he poses himself the question whether the applicant is unable to perform any occupation given his background, experience and education he does not answer it.

17. The applicant is said to be illiterate, but there is at present no evidence of that, and there likewise no evidence that an illiterate man cannot get light manual work. This is not, however, to say that such evidence could not be forthcoming in the future, though it has to be said that this sort of thing, which relates to the labour market, would not be within the expertise of a medical expert and, if a medical expert ventured to give an opinion on it, that opinion would be inadmissible.

18. It looks at present as though a claim under section 7 will ultimately be a waste of time. However, I cannot say that it will be. The plaintiff may be able to find the necessary evidence to support it. The amendment will occasion no prejudice to the defendant which will not be met by costs. So I will allow it.

19. The other amendment relates to Dr. Chu and his report. If his evidence is to be excluded there is no point in allowing the pleading of his finding. I am not in any event sure that it should be pleaded; it is evidence, and opinion evidence and not fact.

20. So far as I can see Dr. Chu has examined at the applicant, considered the Ordinance and the Schedule and come to a view as to percentage of permanent partial loss of earning capacity and the applicant's ability to go back to his pre-accident employment. That is the sort of thing which orthopaedic experts routinely do and which indeed both Dr. Lee and Dr. Cheng have done.

21. Where, as here, the injury concerned is not one specified in the First Schedule to the Ordinance, it is the court which has to decide on the appropriate percentage of permanent loss of earning capacity. This can be done under section 9 (1)(b). If appropriate it can be done under section 9(1A) with application of the formula in Hong Kong Paper Mills Ltd. v Chan Hi-wu [1981] HKLR 556, as modified in Lui Kwong Yan v Shui Hing Decoration Works & anr. [1993] 1 HKLR 168.

22. In Tang Shau Tsan v Wealthy Construction Company Limited, unreported CACV 58/2000, Rogers JA, as he then was, expressed the following view on expert witnesses and in particular on their opinion as to earning capacity:

An expert witness can give evidence as to the nature of the plaintiff's injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.

23. This in my view applies in employees' compensation cases no less than in personal injury cases.

24. Here Dr. Chu does not say that there is no work which the applicant is medically fit to undertake and to that extent his opinion is irrelevant to the section 7 claim. He does not say what other work the applicant is medically fit to undertake, so to that extent it is irrelevant to considerations under section 9(1A). His opinion as to the percentage of loss of earning capacity is irrelevant, on the basis of the authority cited above. The report is unhelpful and confusing. So the applicant will be barred from adducing Dr. Chu's evidence at the trial.

25. There will be an order in terms of the applicant's summons, but only in respect of the amendments to Paragraph 2((a) and (e) of the Application. There will also be an order in terms of the respondent's summons.