WONG TSZ WING v. HUANG WEN MING t/a MING NGAI TRADING CO

DCEC238/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 238 OF 2010

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J U D G M E N T

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1.  This is the applicant’s application for employees’ compensation for the injuries he sustained in an accident which occurred on 15 September 2009, pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap.282 (the “ECO”).

2.  Further, the applicant has filed a Notice of Appeal dated 13 October 2010 against the assessment made by the Employees' Compensation (Ordinary Assessment) Board under a Certificate of Assessment issued on 18 August 2010. Under the Certificate of Assessment, the applicant’s loss of earning capacity permanently caused by the injury was assessed to be 21.9 %.

3.  As pleaded in the Amended Application, the applicant suffered personal injury arising out of and in the course of his employment with the respondent in the accident on 15 September 2009. 

4.  The applicant was born on 10 August 1975.  At the time of the accident he was employed as a driver cum furniture installation worker and was aged 34 at the date of the accident.

5.  According to the applicant, on 15 September 2009 at around 7.30 pm, while in the course of employment with the respondent, the applicant and his co-worker were assembling some articles of furniture at Room 1517, 15th Floor, Sheung Fu House, Upper Ngau Tau Kok Estate, Kowloon, Hong Kong.  After they had assembled a large wardrobe at the said premises, they started to place it to the position designated by the respondent’s client.  When they moved the wardrobe, the top of the wardrobe crashed into the lampshade of a ceiling lamp.  As a result, the glass lampshade broke into fragments.  The glass fragments fell down and cut the applicant’s right wrist.  As a result, the applicant sustained personal injuries.

6.  After the accident, the applicant was sent to the Accident and Emergency Department of the Queen Elizabeth Hospital by ambulance for medical treatment.  On physical examination of the applicant, there was a deep laceration at the applicant’s right wrist.  He was admitted to the Orthopaedics Ward for further care and management.  During the stay in the ward, emergency operation was performed for flexors, nerves and arteries repair.  He was discharged on 17 September 2009 with a slab.

7.  For the purpose of these proceedings, the applicant appointed Dr Wong See-hoi, an expert in orthopaedics, as his expert and was examined by him on 8 December 2010 for determining his condition.

8.  According to Dr Wong, the applicant’s diagnosis was all flexors cut, both median and ulnar nerves cut, ulnar artery cut and partial torn of the pronator quadratus muscle.

9.  Interlocutory Judgment on liability in these proceedings was entered by the applicant against the respondent in its absence on 25 February 2011.

10.  As Interlocutory Judgment on liability against the respondent has already been obtained by the applicant, the present hearing only concerns the assessment of the appropriate compensation to be awarded to the applicant pursuant to the ECO.

COMPENSATION UNDER SECTION 9 - PERMANENT PARTIAL INCAPACITY

The applicant’s pre-accident average monthly earnings. 

11.  Having considered all the available evidence in this case, I am satisfied that the applicant’s monthly earnings should be determined at HK$12,000.  The determination is made under section 11(2) of the ECO.

The multiplier

12.  By virtue of section 7(1)(a) of the ECO, since the applicant was aged 34 at the time of the accident, the appropriate “multiplier” should be 96.

Section 9(1A) of the ECO

13.  Mr Steven Lau, counsel for the applicant submitted and I agree, that section 9(1A) of the ECO should be applied in this case, for the reasons that:

(1) In the light of the medical evidence, in particular, the medical report prepared by Dr Tiu Kwok-leung of the Department of Orthopaedics and Traumatology dated 2 November 2010, the applicant suffered a serious injury to his right wrist (emergency operation was performed for flexors, nerves and arteries repair and intro-operative findings showed all wrist flexors cut, both median and ulnar nerves cut, and cut ulnar artery).

(2) According to Dr Wong, an orthopaedic expert, the applicant sustained ulnar nerve palsy, partial median nerve palsy and flexor tendon cut of his dominant right hand and he would have difficulty in lifting and carrying bulky and heavy furniture pieces.

(3) The applicant’s pre-injury job was very physically demanding in nature.  He had to transport goods weighing from 30 kilograms to 100 kilograms.

(4) Owing to the persistent pain in his right wrist, the limited movement of his right hand as well as the weakness, the applicant could not lift heavy objects. Before the accident, his job nature involved frequent weight lifting and lots of physical demand.  After the accident, he could not resume his pre-accident work as a driver cum furniture installation worker.

(5) The applicant’s education level is only Secondary 3 and his work experience is mainly confined to jobs which are physically demanding in nature (in other words, he possesses no special skill).

14.  In the circumstances, I am satisfied that there are “special circumstances” in respect of the applicant which brings into operation section 9(1A) of the ECO (see: Kwan Yee Chor v Hung Fau Metal Construction Limited, DCEC520/2001 (Judgment of His Honour Judge Lok dated 10/07/02), at paragraph 11).

15.  It is Dr Wong’s opinion that the applicant is more suitable to take up jobs which are sedentary in nature, such as car park attendant or gas station attendant.  The applicant should be able to take up alternative employment such as security guard (which is similar to car park attendant).

16.  According to the “Table of Average Monthly Salaries of Selected Occupations” published by the Census and Statistics Department, the average monthly salaries of security guards ranged from HK$7,405 to HK$7,525 (as at March 2010 and September 2010), and the median between these two figures is HK$7,465. In other words, the applicant should be able to take up an alternative occupation and earn around HK$7,465 per month after the accident. Hence, the applicant would be paid a monthly sum of HK$7,465, which is substantially less than his pre-accident earnings of HK$12,000.  The difference is about 38 per cent.

17.  Accordingly, I would allow the applicant’s appeal against the assessment of loss of earning capacity made by the Employees' Compensation (Ordinary Assessment) Board, i.e., 21.9%, and assess the compensation for permanent partial incapacity in accordance with the provisions contained in section 9(1A) of the ECO. 

18. The compensation under section 9 of the ECO is assessed to be:

HK$12,000 x 96 x	(HK$12,000 - HK$7,465)	= HK$435,360.
	HK$12,000

COMPENSATION UNDER SECTION 10 - TEMPORARY INCAPACITY

19.  The applicant was granted with intermittent periods of sick leave for a total of 313 days:

(a) 15/9/2009 - 31/5/2010 = 259 days;

(b) 8/6/2010 - 18/6/2010 = 11 days;

(c) 22/6/2010 - 17/7/2010 = 26 days;

(d) 20/7/2010 - 23/7/2010 = 4 days;

(e) 27/7/2010 - 4/8/2010 = 9 days;

(f) 8/10/2010 - 11/10/2010 = 4 days.

20.  The applicant is entitled to be paid 4/5 of his wages throughout the sick leave periods.  There is nothing to suggest that the intermittent sick leave is unreasonable or is obtained by fraud. Hence, the applicant should be entitled to the full sick leave granted to him by his treating doctors.  The compensation under section 10 is assessed to be: HK$12,000/30 x 313 days x 4/5 = HK$100,160.

COMPENSATION UNDER SECTION 10A - MEDICAL EXPENSES

21.  The applicant is entitled to be reimbursed his medical expenses reasonably incurred as a result of the accident.  The compensation under section 10A is assessed to be HK$8,625.

ADVANCE PAYMENT

22.  The applicant accepts that he has received advance payment from the respondent in the total sum of HK$8,800.

SUMMARY ON ASSESSMENT OF COMPENSATION

23.  In summary: 

(1) Compensation under section 9 of the ECO, HK$435,360;

(2) add: compensation under section 10 of the ECO, HK$100,160;

(3) add: compensation under section 10A of the ECO, HK$8,625;

(4) less: advance payment (HK$8,800);

Total: HK$535,345.

INTEREST

24.  Interest is allowed at half judgment rate on the above sum from the date of the accident (15 September 2009) until this judgment and thereafter at judgment rate until payment in full.

CONCLUSION

25.  Compensation is assessed at the sum of HK$535,345.  The respondent is to pay such sum together with interest as aforesaid.

(Discussion re costs)

26.  The costs of this assessment including the costs of the hearing on 25 February 2011 be paid by the respondent to the applicant (with certificate for counsel), such costs to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with Legal Aid Regulations.