LEUNG HO MING v. CHUNG KAM MING AND ANOTHER t/a TAI ON ENGINEERING CO

DCEC 753/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 753 OF 2006

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J U D G M E N T

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1.  Leung (the Applicant) sprained his back in the course of moving heavy parts of a metal conveyor belt on 15 September 2004.  He filed his claim in 2006 for compensation under the Employees’ Compensation Ordinance, Cap.282.  Chung (the 1^st Respondent) was his employer who contracted the work from Yeung (the 2^nd Respondent).

2.  The trial was last held on 13 August 2007 when the claim against Yeung was disposed of by judgment by consent.  Chung was then absent; yet the claim against Chung was not disposed of at the same time.  Hence today’s hearing.  Chung remains absent today.  Considering the affirmation of service filed on behalf of Leung, I am satisfied that the documents and notice of today’s hearing have been brought to the attention of Chung.  I therefore allowed Leung to proceed.

3.  According to the answer originally filed by Yeung, issue was raised as to whether Leung has compromised his claim for compensation with both Respondents.  Now the claim against Yeung has been disposed of.  Chung has never entered appearance.  There is strictly no such issue of liability raised between Leung and Chung.  In any event, Leung explained in his statement the circumstances in which he was said to have entered into the compromise agreement.  Leung does not dispute he has received HK$15,000 from Yeung after the accident and he would give credit to that.  I accept his explanation.  I find Chung is liable as employer to compensate Leung.

INJURIES AND TREATMENT

4.  In his statements, which he adopted in court, he explained how he felt pain at his back when he was lifting a heavy part of the conveyor belt.  He was sent to the hospital.  After an intramuscular injection, he was discharged with analgesics.  Due to pain, he has since consulted private bonesetter and attended the hospital for conventional treatment.  He has also been referred to physiotherapy.  He resumed work as a painting worker in March 2005.  However, he continued medical treatment due to persistent pain at his back.

LOSS OF EARNING CAPACITY

5.  In December 2006, the Employees’ Compensation Assessment Board assessed Leung’s loss of earning capacity on account of his back injury resulting in residual pain to be 0.5%.    Leung appeals such assessment pursuant to section 18 of the Ordinance.

6.  Leung was examined by Dr James Kong (engaged on behalf of Leung) and Dr Lee Po Chin (engaged on behalf of Yeung) in March 2007; and the experts issued their joint report in the same month.

7.  The experts agreed on their physical findings upon examination of Leung.  There was no severe nerve root or spinal cord compression.  Straight leg testing was normal.  They agreed that Leung has received appropriate conventional treatment.  Waddell’s signs were found.  Dr Lee believed that this was a strong suggestion of symptom magnification.  While Dr Kong did not necessarily agree, he believed that Leung should be able to perform better during the examination.  They agreed that the residual pain would be mild.

8.  They agreed that further operation would not be required.  They agreed that the sick leave period was reasonable and Leung has reached maximum medical improvement.  Leung should be fit to resume his pre-accident employment.  Dr Lee recommended back and abdominal exercise at home.  While suggesting further therapy, if necessary, Dr Kong also suggested home exercise to ease any residual or intermittent pain after Leung has resumed his pre-accident job.

9.  Dr Kong and Dr Lee assessed Leung’s loss of earning capacity to be 2% and 1% respectively.  I allow the section 18 appeal.  In my judgment, the marginal difference in the degree of loss of earning capacity assessed by the experts does not affect their general concensus.  For assessing the compensation, I am prepared to accept the higher degree of 2%.

SECTION 9 COMPENSATION

10.  According to Leung, he first started to work for Chung in June 2004.  In the Application, the average monthly income immediately prior to the accident was stated to be HK$15,600.  In his statements, other amounts were given.  In court, Leung confirmed that he earned a daily wage of HK$600 and worked 20 to 25 days on average per month.  The monthly income was therefore HK$12,000 to HK$15,000.  Wages were paid in cash.  There is not much documentary evidence in support.  But in the declaration filed with the Labour Department in October 2005 for wages in arrears, the amount owed by Chung to Leung for the period between 5 August and 9 September 2005 was stated to be HK$13,750.  This was within the HK$12,000-15,000 range.  I accept Leung’s evidence.  For the assessment, I adopt the median of HK$13,500.

11.  Leung was born on 8 May 1974 and was 30 years old at the time of the accident.  The statutory multiplier should be 96 months.

12.  The section 9 compensation would be HK$13,500 x 96 months x 2% = HK$25,920.

SECTION 10 COMPENSATION

13.  Leung had 18 days of sick leave during the period between 15 September 2004 and 11 March 2008.  The section 10 compensation should be HK$13,500 x 18/30 x 4/5 = HK$6,480.

SECTION 10A COMPENSATION

14.  I allow the medical expenses claimed in the sum of HK$2,500.

15.  The compensation shall be:

Section 9 compensation	HK$25,920
Section 10 compensation	HK$  6,480
Section 10A compensation	HK$  2,500
Total:	HK$34,900

16.  Credit should be given to HK$15,000 already received from Yeung prior to this application.  The net compensation should be HK$19,900.

17.  This application last came before me this January.  For reasons I explained during that hearing, which I do not repeat here, I think it is clear that the delay since the last trial date (13 August 2007) till today was not attributable to Chung at all.  For the same reason, Chung should not be liable for interest on the compensation during this period.

ORDER

18.  I order that Chung shall pay compensation in the sum of HK$19,900 together with interest thereon at half judgment rate from the date of accident (15 September 2004) up to 13 August 2007.  Interest from today shall accrue at the judgment rate until full payment.

[Counsel submits on costs]

19.  During the last hearing, for the same reason mentioned above, I also made no order as to costs between Leung and Chung incurred since 13 August 2007 up to today.  I do not think that Leung or the Legal Aid should be made to bear any costs consequence since 13 August 2007 either, because the claim between Leung and Chung could and should have been disposed of on that day.  Proceedings since then and today’s hearing would have been unnecessary.  I reserved this question until today.  Today Mr Lam fairly informed me that the legal representatives of Leung would not be claiming from the public fund for their own costs incurred since 13 August 2007.  In the circumstances, and subject to that, I order that Leung shall have costs of this application against Chung, including any costs reserved, up to and including 13 August 2007.  Costs shall be taxed.  I certify the engagement of counsel.  Leung’s own costs up to and including 13 August 2007 shall be taxed in accordance with the legal aid regulations.