KWAN YEE CHOR v. HUNG FAU METAL CONSTRUCTION CO. LTD. AND OTHERS

DCEC 520/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 520 OF 2001

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REASONS FOR JUDGMENT

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1. This is an application for employees' compensation pursuant to the Employees' Compensation Ordinance, Cap. 282 ("the Ordinance"). In the hearing on 5 July 2002, I granted judgment in favour of the Applicant against the 1st and the 2nd Respondents. I now give my reasons for such decision.

2. On 7 April 2002, when the Applicant was carrying out welding work to a metal frame for covering air-conditioning ducts at a classroom on the 3rd floor of Hong Kong South District Government Primary School at No. 325 Kiu Road, Apleichau ("the Site"), the Applicant fell from a working platform onto the floor and sustained injuries. At the time of the accident, the Applicant was employed by the 1st Respondent as an iron-work worker, and the 2nd Respondent was the principal contractor of the Site within the meaning of the Ordinance. The 3rd Respondent is the insurance company which has issued an employees' compensation policy to the 2nd Respondent as the main contractor of the Site, and it has successfully applied to join as a party of the present Application. The 3rd Respondent did not attend the trial.

3. The 1st and the 2nd Respondents do not contest liability in the present case, and the main dispute between the parties relates to the quantum of the compensation recoverable by the Applicant. In the trial, only the Applicant gave evidence to support his own case. No evidence was called on behalf of the Respondents.

4. According to the medical reports prepared by the doctors of the North District Hospital, the Applicant suffered a fracture in the right distal radius as a result of the said accident. Although the fracture is now healed, the Applicant always complains of weakness, stiffness and pain in the right wrist joint. The Applicant also suffered some other minor injuries, and the one in the left middle finger causes some stiffness in the use of the left hand.

5. The Applicant also seeks to rely on the medical report prepared by Dr. Tsoi Chi Wah Danny. The 1st and the 2nd Respondents accept Dr. Tsoi's qualification as an expert and the contents of his report. Dr. Tsoi finds that there is sign of early degeneration in the right distal radius of the Applicant and such disability is likely to be permanent. In order to slow down the degeneration process, the Applicant should not be asked to engage in activities requiring lifting heavy loads. He agrees that the Applicant is not able to resume his pre-accident employment, and the Applicant can take up alternative employment which does not require a lot of climbing or heavy weight lifting. In his opinion, the Applicant can perform simple welding work, and he is also suitable to work as messenger, cleaning worker, restaurant waiter, warehouse attendant and construction site light duty causal worker. Dr. Tsoi also assesses the Applicant to have suffered a 8% loss of earning capacity.

6. In the trial, the Applicant maintains that he cannot resume his former employment. Apart from carrying out the welding work itself, an iron-work worker has to fix various metal frames and to carry heavy metal objects in the work sites, and as a result there is a great physical demand on the use of the wrists of the worker. After the accident, the Applicant, with the assistance of the occupational therapist, tried to train his right hand with various exercises hoping that it could return to the pre-accident strength. But unfortunately, his disability has not improved and so he cannot resume his former employment as an iron-work worker. He also testifies that cleaning worker or other causal construction site worker would also have to use the wrists to carry heavy objects in the work sites. As he can no longer perform such task, the Applicant does not believe that he can undertake such alternative employment. After the accident, he has attended a course in "Basic Security and Property Management Training" organized by the Employees Retraining Scheme, and the Applicant believes that building attendant is the best alternative employment he can undertake after the accident.

7. After listening to the Applicant's evidence, I accept him to be an honest and truthful witness. He appears to me to be a positive person, and he has tried his best to find other suitable employment after the accident. Indeed, the Respondents have not adduced any evidence to rebut the Applicant's testimony, and his evidence remains unshaken under cross-examination. Hence, I accept that his complaint is genuine.

8. It is common ground that:

(i) the monthly earning of the Applicant at the time of the accident was $16,900; and

(ii) the average monthly income of a building attendant at the time of the accident was $7,826.

9. The main dispute between the parties relates to the determination of the loss of earning capacity, which in turn affects the quantum of compensation for permanent partial incapacity under s. 9 of the Ordinance. On 23 July 2001, the Applicant was assessed by the Employees' Compensation (Ordinary Assessment) Board to have suffered a 6% loss of earning capacity. The Applicant is not satisfied with such assessment and he now appeals to this Court to vary the assessment. According to Mr. Ho for the Applicant, the compensation under s. 9 should be assessed in accordance with the principle set out in s. 9(1A), which reads as follows:

"S. 9(1A)

Where -

(a) permanent partial incapacity results from an injury or a combination of injuries (whether or not specified in the First Schedule); and

(b) the percentage of the loss of earning incapacity specified or assessed in relation to that injury or combination of injuries in accordance with subsection (1) would be substantially less that the percentage of the loss of earning capacity permanently caused by the injury or injuries in the special circumstances of the employee, including, without limiting the generality of the foregoing-

(i) the nature of the injury or injuries in relation to the nature of his former usual employment; and

(ii) his qualifications, previous training and experience,

the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury or injuries in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time."

10. In his submission, Mr. Hui for the 1st and the 2nd Respondents relies on the opinion of Dr. Tsoi and argues that the Applicant's loss of earning capacity should not be higher than 8%. However, I do not accept that Dr. Tsoi's opinion is in any way relevant for the purpose of our present exercise. In Tang Shau Tsan v Wealthy Construction Company Limited, unreported CACV 58/2000, Rogers JA, as he then was, expressed the following view relating to such kind of opinion given by doctors or occupational therapists:

"Mr. Clough, on behalf of the plaintiff, correctly drew our attention to the fact that both the report of Dr. Philip Mao and the report of Ms. Alice Tsang contained statements of their opinion that the plaintiff had suffered a 10% loss of 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. .........

All the more so, it is for the court to draw its own conclusions as to the earning capacity of the plaintiff."

Mayo VP also shared the same view:

"I also find myself in agreement with the observations made concerning the evidence given by Dr. Mao and Ms. Alice Tsang. Clearly any expert evidence given by them should have been confined to the Plaintiff's medical condition. It was not permissible for them to venture to give opinions relating to the labour market a subject upon which they were not competent to express an opinion."

Although that case concerns an assessment of damages in a personal injuries action, the same observation can be made in respect of the opinion given by Dr. Tsoi in the present case.

11. In my judgment, there is ample justification for this Court to invoke s. 9(1A) of the Ordinance and to assess a higher loss of earning capacity. The injuries suffered by the Applicant may not appear to be very serious. However, as the Applicant's pre-accident job would involve a great physical demand on the use of the right wrist, both for the welding operations and the other ancillary tasks such as moving various heavy metal objects in the work sites, the Applicant certainly cannot return to his former employment. Coupled with the fact that the Applicant has only received little education and he does not possess other special skills apart from working as an iron-work worker, the percentage of loss of earning capacity assessed under s. 9(1) of the Ordinance would be substantially less than the percentage of actual loss of earning capacity suffered by the Applicant. Based on the aforesaid, I allow the Applicant's appeal and assess the compensation for permanent partial incapacity in accordance with the provisions contained in s. 9(1A) of the Ordinance and the formula laid down in Hong Kong Paper Mills Ltd. v Chan Hi-wu [1981] HKLR 556, which was later modified in Lui Kwong Yan v Shui Hing Decoration Works & anr. [1993] 1 HKLR 168:

$16,900 x 72 x	16,900 - 7,826	= $652,422
	16,900

12. The Applicant was granted sick leave of about 15.5 months after the accident, and the Respondents are not challenging the reasonableness of the length of such sick leave period. In such circumstances, I am satisfied that the compensation under s. 10 should be assessed as follows:

$16,900 x 15.5 months x	4 =	$209,560
	5
less periodical payment received:		$202,280
balance:		$7,280

13. The parties also agree that the amount of medical expenses recoverable under s. 10A is $3,508.

14. The total amount of compensation can therefore be calculated as follows:

(i)	s. 9 compensation:	653,422
(ii)	s. 10 compensation:	7,280
(iii)	s. 10A compensation:	3,508
	total:	664,210

15. Mr. Ho for the Applicant has also relied on s. 44 of the Ordinance and asks this court to enter judgment against the 3rd Respondent. However, s. 44 provides that an employee is entitled to recover in his own name, as though he were a party to the policy, directly from the insurer any amount which he would have been entitled to recover from the person insured under the provisions of the Ordinance. In other words, it would be a separate and a notional claim under the insurance policy, and in my view, such kind of claim should not be included as part of the claim under the present Application which is a claim for employees' compensation. Apparently, Mr. Ho agrees with my analysis and does not pursue for a judgment against the 3rd Respondent. In order to protect the Applicant's right to make a separate claim against the 3rd Respondent in the future, the Applicant also applies to withdraw the claim against the 3rd Respondent in the present case. In the hearing, I have also allowed such application on the part of the Applicant.

16. These are the reasons I give in relation to the judgment dated 5 July 2002.