DCEC 1519/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 1519 OF 2009

____________

J U D G M E N T

1.  On 8 January 2008, Chan, the Applicant, was performing painting work in a construction site in Fanling, New Territories. In the course of work, he fell from a broken section of the bamboo scaffold at the height of over 2 metres above the ground and was injured. He claims compensation pursuant to the Employees’ Compensation Ordinance, Cap.282 against Hang On, his employer and the 1^st Respondent, and Bosee, the principal contractor and the 2^nd Respondent.

2.  Though Bosee appeared by counsel, parties informed the court that between Chan and Bosee, agreement has been reached so that both liability and quantum would not be in dispute. Nevertheless, Chan still needs to prove his claim against Hang On.

3.  Hang On has been absent from previous court attendance.  I am satisfied that notice of hearing and the documents for trial have been duly served.  I see no reason why Chan should be prevented from proceeding.

Liability

4.  Chan gave evidence and adopted the content of his statement.  I accept his evidence and find that the accident occurred in and arose out of his course of employment with Hang On as mentioned above.  Liability is established.

Quantum

5.  After the accident, Chan was sent to the hospital by ambulance.  Provisional diagnosis was right loin contusion.  Further examination at the surgical department revealed that Chan had microscopic haematuria.  X-ray of the lumbosacral spine revealed fracture of the right side transverse process of L1 to L5 of the lumbar vertebrae.  CT scan confirmed the fracture.

6.  Chan was given conservative treatment and protection by hard spinal orthosis.  He was discharged 2 days later and followed up by the orthopaedic team of the hospital together with physiotherapy and occupational thereapy.

Section 18 appeal

7.  Chan has been examined by the Employees’ Compensation (Ordinary Assessment) Board (“MAB”). According to Form 7 dated 6 July 2009, for his “fracture of transverse process L1-L5 resulting in low back pain and stiffness”, Chan was assessed to have suffered 5% loss of earning capacity for the purpose of the Ordinance. Upon review, the MAB maintained the assessment by Form 9 dated 8 February 2010.

8.  Sick leave between the date of the accident and 25 January 2010 was certified by MAB to be necessary.

9.  Chan lodged an appeal against the MAB’s assessment of his loss of earning capacity pursuant to section 18 of the Ordinance.  For such purpose, he adduced and relied on the orthopaedic expert opinion of Dr Fu Wai Kee.  Dr Fu examined Chan on 2 June 2010 and produced his report dated 15 June 2010 and his supplemental report dated 5 July 2010.

10.  Chan complained to Dr Fu about back pain and weakness.  Dr Fu opined that the treatment prescribed for Chan was appropriate.  Chan has reached the stage of maximal medical improvement.  The injury is described as quite serious.  As a result, Chan is expected to have easy fatigue of the back with episodes of severe back pain. He would require treatment on a need basis in the future.

11.  Chan is expected to have difficulty in heavy manual lifting and climbing.  But he should be independent in his daily life activities.  Dr Fu added that Chan should avoid heavy manual lifting to prevent further back injury.  He could not and should not return to his pre-accident job.  Light duties such as gas station worker or security guard would be more suitable.

12.  Dr Fu agreed that the sick leave so far granted is reasonable.

13.  Dr Fu projected a 6% loss of earning capacity.  This is also the percentage loss that Chan asks this court to find for the purpose of the section 18 appeal.

14.  At one point, I had reservation whether the appeal is justified by the 1% margin of difference between the assessment by the MAB and Dr Fu.  I should also be careful about the quantitative assessment by medical expert.  Yet to be fair, Dr Fu made clear that the percentage loss was nevertheless projected purely for parties’ reference.  At the end, I am prepared to rule in favour of Chan in the absence of opposition by either respondent.  The appeal is allowed.

Pre-accident monthly income

15.  It is agreed between Chan and Bosee that for the purpose of assessment, Chan’s pre-accident monthly income was HK$18,133.33.  Mr Fung for Chan asks me to accept that because that is in line with what was stated in Form 2.

16.  The figure is in line with Form 2 because the form was actually filed by Bosee.  According to the form, Chan’s income during the month preceding the accident (i.e., December 2007) was HK$17,600 and the average monthly income during the 12 months preceding the accident was HK$18,133.33.

17.  Pursuant to section 11(1) of the Ordinance, the more favourable figure between the two should be adopted for the assessment and hence HK$18,133.33.  Though this is agreed between Chan and Bosee, this is not binding on Hang On and certainly not binding on the court, especially when this is in fact wrong.

18.  As a result of the agreement between Chan and Bosee, Bosee did not call any witness to explain the content of the form.  But quite clearly stated in the form, the average monthly income was calculated by reference to the monthly income of only September, November and December 2007 at the daily wage rate of HK$800.  This is proven wrong in fact.

19.  In evidence are the receipts of income issued by Hang On and signed by Chan for the period between January and December 2007.  In court, Chan confirmed the truth and accuracy of these documents.  The receipts recorded that Chan’s daily wage during this period was invariably HK$750 and the average number of working days per month also fell short of 26 days.

20.  According to the evidence, the average monthly income during the 12 months preceding the accident was HK$16,779.17.  Between this figure and the income of HK$17,600 in the month immediately preceding the accident, it is the latter that should be adopted for the assessment pursuant to section 11(1).

Section 9 compensation

21.  Chan was 49 years old at the time of the accident.  The section 9 compensation should be HK$17,600 x 72 x 6% = HK$76,032.

Section 10 compensation

22.  Mr Fung proposed a formula for calculating the section 10 compensation that entails the deduction of the number of holidays from the sick leave period and the division of the sick leave period by 26 days.

23.  Whilst I understand the logic behind that, I do not agree.  The reason is that the base income for the assessment is the monthly income pursuant to section 11.  For this purpose, “month” means calendar month that necessarily includes both working and non-working days: see Lau Yiu Yee v Tung Lee Engineering Co [2003] 1 HKC 43; Mak Mui Chun v Luen Yip Engineering Co, DCEC 716/2004 (10 July 2006).  The sick leave period should therefore be divided by 30 days in the normal course of events.

24.  According to Mr Fung, the sick leave period was 766 days.  The section 10 compensation is therefore HK$17,600 x 4/5 x 766/30 = HK$359,509.33.  The sick leave period just exceeded 24 months.  For the avoidance of doubt, it could be taken that this court exercises its discretion under section 10(5) of the Ordinance in making this award.

Section 10A compensation

25.  Under section 10A, I make the award of HK$5,510 as prayed for.

Summary

26.  In summary, the compensation is assessed as follows;

27.  There is no dispute that Chan has received a total sum of HK$200,000 from both respondents after the accident.  Giving credit to that, I award HK$241,051.33.  This sum carries interest at half judgment rate from the date of accident until today.

Order

28.  Judgment is entered against Hang On and Bosee in the sum of HK$241,051.33 with interest as aforesaid.  Interest from today until full payment runs at the judgment rate. Hang On and Bosee shall pay Chan’s costs of this Application.  Costs shall be taxed, if not agreed.  Chan’s own costs shall be taxed subject to legal aid regulations.