LEUNG CHI WAI v. CT LOGISTICS LTD

DCEC 1709/2019

[2022] HKDC 1276

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1709 OF 2019

-----------------------------------

IN THE MATTER OF AN APPLICATION BETWEEN

-----------------------------------

---------------------------------------------------

ASSESSMENT OF COMPENSATION

---------------------------------------------------

Introduction

1.  This is a trial for the assessment of compensation. The respondent did not attend the trial.

2.  On 18 July 2019, the applicant applied for employee’s compensation against the respondent in relation to an accident at work that took place on 13 April 2018. On 13 August 2019, the respondent admitted liability. Interlocutory judgment was entered against the respondent on 17 January 2020.

3.  The applicant was employed as a transport worker. On 13 April 2018, he was on duty unloading goods from a lorry. The applicant and his colleague placed a wooden pallet on a tailgate, and goods were placed on the pallet. Before the operation of the tailgate, the applicant was ordered to push the goods and the wooden pallet to the end of the tailgate so that it may be lifted by an electric folk. The applicant tried, but due to the heavy weight of the goods, the applicant sprained his back (the “Accident”).

4.  The applicant applied for compensation under ss 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (the “Ordinance”).

5.  For the purpose of assessment of compensation, the following 4 factual findings are required to be made:-

(a) Permanent percentage loss of earning capacity;

(b) Period of total temporary incapacity;

(c) Income of the applicant; and

(d) Medical expenses incurred by the applicant.

Permanent percentage loss of earning capacity

6.  The applicable legal principles for an appeal under s 18 of the Ordinance are trite. The court approaches the issue afresh by testing the validity of the MAB’s conclusion against the total available evidence. Whilst medical opinion is useful, it is for the court to come to its own conclusion. When a solo expert gives evidence, and when considering the weight to be attached to his opinion, a more vigorous assessment should be adopted: Tsang Kwong Tong v Tennille Decoration & Design Ltd & Others (10/10/2006, CACV 42/2006) at §§38 & 47; Ip Pang Sheung v Wong Tsai Transportation Ltd [2018] HKDC 951 at §§105-107.

7.  On 11 February 2021, the MAB assessed the applicant’s permanent percentage loss of earning capacity at 0.2%.

8.  An appeal was filed pursuant to s 18 of the Ordinance on 19 April 2021. The applicant adduced expert evidence from Dr Lung Ting Kwan, Peter in support of his appeal.

9.  The applicant’s present complaint is that he still felt episodic back pain. It is located at the left mid paraspinal region. He estimated that the back pain occurred about 50 times per day. The duration was about 10 seconds to 1 minute. The pain occurred when he bent forward or engaged in back motion. The pain usually subsides when he discontinued the action. The intensity of the pain was NPRS 0/10 at rest and NPRS 1-2/10 when the pain occurred (NPRS, Numeric Pain Rating Scale; 0/10 indicating no pain; 10/10 representing most severe pain).

10.  Dr Lung opined that:-

(a) The applicant’s back sprain has undergone ‘good recovery with mild residual symptoms’;

(b) The Accident caused soft tissue injury on the part of the applicant. There were minimal degenerative features seen in the lumbar spine X-rays. There was no pre-existing condition in the applicant’s lumbar spine that would cause his present impairment;

(c) Some patients suffer from residual pain and stiffness after sustaining soft tissue injury. The applicant described mild pain only; episodic exacerbation brought about by exertion and back motion, each episode of pain lasts for less than 1 minute. There was no neurologic deficit. The walking and standing tolerance were not severely limited. The requirement for analgesics was not constant;

(d) The applicant’s progress from treatments was satisfactory;

(e) The applicant will not have any difficulty in adapting to his mild reduction of physical fitness and mild pain. He will be able to return to his original occupation and he did;

(f) The disability experienced by the applicant is mild but permanent;

(g) The permanent impairment of the applicant is lumbar spine region stiffness and occasional pain. The impairment is not severe. It impairs his physical activity to a mild extent; and

(h) The applicant’s back condition would fit into Class 1 of the Lumbar Spine Regional Grid (Non-specific chronic or chronic recurrent low back pain), according to the Guides to Evaluation of Permanent Impairment (6^th Ed) published by the American Medical Association. It carries a whole person impairment of 1 to 3% each. Dr Lung would rate the applicant’s whole person impairment and permanent loss of earning capacity resulting from the Accident at 2%.

11.  I accept Dr Lung’s opinion, in particular because the applicant did not suffer from any fracture, disk prolapse, pseudoarthrosis or significant spinal deformity but he did have non-specific chronic recurrent low back pain with documented history of injury with back complaints.

Period of total temporary incapacity

12.  The MAB accepted the applicant’s sick leave as stated in Form 7 for a total of 237 days, from 14 April 2018 to 20 April 2018 and 26 April 2018 to 11 December 2018. These periods are deemed to be periods of ‘total temporary incapacity’ under s 10(2) of the Ordinance.

13.  The applicant’s counsel, Mr Jerome Liu, asks for compensation for the whole period from 14 April 2018 to 11 December 2018; ie including the 5 days for which no sick leave certificate was granted.

14.  Mr Liu submitted that it is highly likely that the applicant was of total temporary incapacity during that 5-day period:-

(a) These 5 days were only a week after the Accident and another 230 days of sick leave were subsequently granted;

(b) Since the Accident, the applicant’s complaints of his back pain in 2018 have all been recorded in medical notes, and the pain continued till December 2018; and

(c) The last sick leave was on 11 December 2018. The applicant had a total of 6 treatment sessions of physiotherapy, starting on 13 June 2018. He was once accessed by the physiotherapist that he was not ready to return to his previous work.

15.  I accept Mr Liu’s submissions in this regard. In light of the medical records, treatment and subsequent leave granted to the applicant, it is most likely that for the interim 5-day period, the applicant was also of total temporary incapacity.

16.  As such, the applicant was of ‘total temporary incapacity’ for a period of 242 days.

The applicant’s income

17.  The applicant’s case is that he worked for 24 days per month, with overtime pay before the Accident. His daily wage was HK$650, and he earned about HK$18,000 for the month immediately preceding the date of the Accident.

18.  The applicant did not adduce any documentary evidence to prove his income. It is his case that the respondent only paid him in cash, and he has not kept any record. According to the applicant, the respondent paid him about once a week.

19.  The applicant had attempted to obtain a list of earnings from the respondent. Despite a Court order made on 20 November 2020 for the respondent to disclose the same, it has failed to do so. The respondent also failed to produce any EC insurance policy, and failed to make any affirmation to confirm that the respondent had not taken out any EC insurance policy.

20.  Mr Liu invited the court to draw an adverse inference against the respondent that the list of earnings, if produced, would have exposed facts unfavourable to the respondent. In other words, it would expose that the applicant’s earnings were HK$18,000 or more: Hong Kong and Shanghai Banking Corporation v Chan Yiu Wah and another [1988] 1 HKLR 457 at p.467C-H.

21.  In light of the respondent’s ongoing default in disclosing the list of earnings which has direct bearing on the applicant’s income, I am prepared to draw an adverse inference against the respondent. I accept that the applicant’s monthly salary was HK$18,000, on the basis of 24 working days per month.

Compensation

22.  The various limbs of compensation can be worked out as follows:-

(a)	S 9 compensation on compensation in case of permanent partial incapacity: the applicant was born on 25 September 1984. At the time of the Accident on 13 April 2018, he was 33 years old. Applying the statutory multiplier of 96 (s 7(1)(a) of the Ordinance), and multiplier of 2%, the relevant compensation is:- HK$18,000 x 2% x 96 = HK$34,560
(b)	S 10 compensation on compensation in case of temporary incapacity:- HK$18,000 x 12 x 4/5 x 242/365 = HK$114,568.77
(c)	S 10A compensation regarding payment of medical expenses:- Medical expenses at Princess Margaret Hospital 27 April 2018 HK$300 13 June 2018 HK$135 4 July 2018 HK$80 30 July 2018 HK$80 ________ Total: HK$595 荃薈綜合醫館 14 April 2018 HK$250 16 April 2018 HK$250 17 April 2018 HK$250 19 April 2018 HK$250 _________ Total: HK$1,000

With each item falling within the statutory limit of HK$300 (3^rd Schedule of the Ordinance, paragraph 1) for each day, the sum of HK$1,595 is allowed in full.

23. The total amount of compensation is:-

S 9	HK$34,560.00
S 10	HK$114,568.77
S 10A	HK$1,595.00
	_____________
Total:	HK$150,723.77

24.  As there is no evidence of any advance payment made to the applicant, the total amount of compensation to be paid to the applicant is HK$150,723.77. Interest shall accrue on the sum at half judgment rate from the date of the Accident on 13 April 2018 up to the date of judgment, and thereafter at judgment rate until payment in full.

25.  As to the costs, I make a costs order nisi that:-

(a) The costs of the applicant be borne by the respondent, to be taxed if not agreed;

(b) The applicant’s own costs be taxed in accordance with Legal Aid Regulations.

26.  The costs order nisi shall become absolute in 14 days from the date of this Judgment if no application to vary the order is taken out.

27.  I thank Mr Liu for his submissions.