KWOK KWAN LAM v. LAI PO SING AND ANOTHER

DCEC8/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 8 OF 2011

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BETWEEN

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ASSESSMENT OF COMPENSATION

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1.  The applicant claims against the two respondents for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap.282 of the laws of Hong Kong for injuries sustained at an industrial accident while working at a container yard of the 2nd respondent at DD125, Lot 468B, Tin Ha Road in Yuen Long, New Territories, on 26 June 2009.

2.  The two respondents are absent at today’s assessment of damages hearing.  Judgment in default on liability was entered against the two respondents on 3 June 2011.

3.  On the day of the accident, when the applicant was working at a container yard belonging to the 2nd respondent, he was knocked down by a forklift truck and his left foot was run over by the wheel of the forklift truck.  He was taken to Tuen Mun Hospital by ambulance for treatment immediately after the accident.

4.  At the hospital, the doctors found an open wound over the dorsum of his left foot. X-ray of the left foot revealed multiple fractures of the left foot metatarsal bone from the first to the fifth metatarsal.  He received wound debridement and skin graft and a left leg cast at the hospital.  He was discharged on 10 July 2009.

5.  Subsequently, he was followed up at the outpatient clinic of Tuen Mun Hospital and he had also received physiotherapy treatments between 6 October and 13 October in 2009 and again on 28 December 2009 to 26 February 2010.

6.  The applicant informed the court today that he still suffered from pain in the left foot if he stood for a long time or when he lifted heavy weights.

7.  When he was examined by Dr Arthur Chiang, he told Dr Chiang he would develop dull ache when he walked for two hours and required intermittent rests. He would feel tired and pain on his left foot if he stood for over three hours, ankle pain when climbing up and down.

8.  Dr Chiang found that he could squat for over one hour if he rose up intermittently.  He could carry weights of 30 pounds and walk with the object, but he would experience tiredness in the ankle after walking 15 to 20 minutes.  He could manage daily living activities without difficulties, in spite of occasional spasm over the left foot’s extensor tendon, lasting 30 seconds to one minute.

9.  Dr Chiang found the applicant’s gait at examination to be normal.  He was able to walk on heels and tiptoes with no limping, and he could squat fully.  Dr Chiang also found tenderness at the plantar side of the second metatarsal head and mild tenderness at the plantar side of the third metatarsal head.

10.  Dr Chiang considered the applicant should be able to return to his pre-accident job, though there may be some reduction of efficiency relating to the range, stiffness of the left ankle and the toes on the left foot.  He estimated the applicant’s fractures of the first to fifth metatarsals and scarring of the dorsum of the left foot to be 4 per cent permanent disability of the whole person.

11.  Dr Chiang further estimated the applicant to have suffered 4 per cent loss of earning capacity based on the ankylosis of the ankle in a functional position and a non-functional position at 15 and 25 per cent respectively, according to the first schedule of the ordinance.

12.  The applicant said in his evidence in court that his condition had not improved between September 2011, when he was examined by Dr Chiang, and today.

13.  Dr Chiang in his medical report, however, in paragraph 16 stated that the limitation in the applicant’s climbing up and down in his work activities would likely improve with time due to gradual resumption of more physical activities and further consolidation of the soft tissue condition around the fracture sites of the left foot.  He estimated the applicant would be able to return to his pre-injury job one year after the end of his sick leave in March 2010.

14.  The applicant informed the court he had returned to his pre-accident job for a few days now and that he can manage the work at the container yard.  This shows the applicant has made an effort to resume his physical activities and return to the pre-accident job.

15.  According to the first schedule of the ordinance:

(1) ankylosis of ankle joint varies between 15 per cent to 25 per cent disability;

(2) loss of a great toe: 14 per cent;

(3) loss of second to fifth toe: 3 per cent each.

16.  The applicant did not lose his toes.  He only lost part of the function due to the stiffness of the left ankle and the toes on the left foot.  Adding up the loss of efficiency, which I assess to be around 10 per cent of losing the whole toe or ankylosis and the loss of range of ankle and toes due to stiffness to be around 3.5 to 4 per cent.  Therefore, I allow the loss of earning capacity at 4 per cent.

17.  The Medical Assessment Board assessed the applicant’s loss of earning capacity at 2 per cent.  I found the applicant’s loss of earning capacity should be more than that.  I allow the appeal and assess the loss of earning capacity at 4 per cent.

18.  I further accept the applicant’s monthly earnings to be $16,575 based on 26 days’ work a month and an average wage of $637.50 per day.

Compensation

Section 9

19.  The applicant was 29 years of age at the time of the accident.

The lump sum payable to him is, therefore, $16,575 x 96 x 4% = $63,648.

Section 10

20.  Under section 10, sick leave, the applicant was allowed sick leave from 26 June 2009 to 15 March 2010.  He is entitled to four-fifth of his salary during sick leave; this comes to $114,920.

21.  As the 1st respondent paid the applicant the sum of $44,170 periodical payments, this sum should be deducted.  The balance is, therefore, $70,750.

Section 10A

22.  The applicant incurred medical expenses as follows:

(1)	at the Tuen Mun Hospital:	$1,680
(2)	at the Chinese herbalist:	$800
(3)	and other medical expenses:	$371
	Total:	$2,851

Summary

Interests

24.  Interest is awarded at half judgment rate from the date of the accident to the date of judgment, and thereafter at judgment rate until full payment.

Costs

25.  Costs to the applicant to be borne by the respondents, to be taxed if not agreed. The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.