ABDUL GHAFAR v. YUEN MING TRANSPORTATION CONSTRUCTION LTD AND ANOTHER

DCEC 124/2015

[2021] HKDC 550

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 124 OF 2015

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JUDGMENT

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INTRODUCTION

1.  By these proceedings, the Applicant employee seeks compensation from his employer the 1^st Respondent (“R1 Company”) or alternatively the 2^nd Respondent (“R2 Chan”), pursuant to the Employees’ Compensation Ordinance (Cap 282) (“ECO”).

2.  On the first day of trial, in line with the Applicant’s primary case, R1 Company admitted liability as employer of the Applicant and further that the Applicant’s monthly salary was HK$18,850.

3.  As a consequence of R1 Company’s admission:-

(a)   The Applicant confirmed that his alternative case against R2 Chan falls away; and

(b)  The only remaining issues for this Court to determine are (1) the quantum of compensation payable to the Applicant by R1 Company under the ECO; and (2) costs.

FINDINGS OF FACT

4.  The Applicant testified himself and also called his wife, Madam Wiji Erna Wati-Kemat (“Wife”), to testify.  Their evidence was not seriously challenged by the Respondents in cross-examination.

5.  The Respondents did not call any witnesses to testify.

6.  In the absence of any serious contradiction, and having regard to the totality of documentary evidence placed before the Court, inherent plausibilities, as well as the demeanor of the Applicant’s witnesses, I find that the Applicant and his Wife are honest and reliable witness.

7.  Based on the evidence of the Applicant and his Wife, I make the following findings of fact.

8.  The Applicant was born on 16 June 1971.  At all material times, the Applicant lived at premises in Luk Tei Tong Village, Mui Wo, Lantau (“Applicant’s Home”).

9.  From October 2012 onwards, the Applicant was employed by R1 Company as a construction worker and general labourer.  In particular:-

(a)   The Applicant was employed at the daily wage of HK$650/day, with daily working hours from 8:00am to 6:00pm.

(b)  The Applicant worked on average 29 days per month.  The monthly wage of the Applicant was therefore HK$18,850 (29 days x HK$650/day). 

(c)   As mentioned above, R1 Company admits that the Applicant was its employee, employed at the monthly wage of HK$18,850.

10.  In the course of his aforesaid employment with R1 Company:-

(a)   The Applicant received instructions from R2 Chan, who was one of the persons managing R1 Company.

(b)   Occasionally, with the Applicant’s consent, materials of and related to R1 Company’s business would be stored at the Applicant’s Home.

11.  On 28 July 2013, the Applicant sustained injuries in an accident which occurred in the course of his employment with R1 Company (“Accident”). In particular:-

(a)   On that day, the R1 Company was engaged to perform relocation services transporting cargo (comprising boxes and furniture) from residential premises in Pui O to residential premises in Shui Hau, as well as providing temporary storage services for part of the cargo. 

(b)  For such purpose, the R1 Company had hired a 5.5 tonnes truck (“Truck”).

(c)  The Applicant attended the residential premises in Pui O at 9:00 am in the morning of 28 July 2013, following instructions given by R2 Chan the night before.

(d)  Besides the Applicant, there were 4 other staff of the R1 Company present, including R2 Chan.

(e)  Over the course of the morning of 28 July 2013 up until the early afternoon, the staff of the R1 Company made three trips transporting cargo from Pui O to Shui Hau using the Truck.

(f)  At around 3:00 pm, the five staff of the Company (including the Applicant and R2 Chan) transported cargo from Pui O to the Applicant’s Home to be temporarily stored there.

(g)  After cargo was unloaded at the Applicant’s Home, a broken air conditioner belonging to the R1 Company, which had been previously stored at the Applicant’s Home, was loaded onto the Truck.

(h)  The Truck was then driven to an alley near Ngan Shu Street Refuse Collection Point, where two trolleys loaded full of recyclable materials belonging to R1 Company (“Trolleys”), weighing about 800kg and 950kg respectively, had been previously placed.

(i)  The 2 Trolleys were loaded into the cargo compartment of the Truck, placed at the inner end closest to the driver’s compartment.  A piece of string was tied from left to right across the cargo compartment (“String”) to secure the 2 Trolleys.  The broken air conditioner was placed at the other end of the cargo compartment.  The Applicant and a fellow staff of R1 Company (the “Co-Worker”) were instructed by R2 Chan to sit in the cargo compartment, as the Truck was driven to its next destination.

(j)  I adopt the top-down, not-to-scale diagram depicting the cargo compartment of the Truck prepared by the Applicant, as reproduced at the end of this Judgment.

(k)  At around 3:30 pm, as the Truck was moving up the slope of South Lantau Road from Mui Wo to Shui Hau, towards the intersection of Fu Kong Shan Road, the String suddenly broke.  The 2 Trolleys slid downwards towards the rear of the cargo compartment of the Truck.

(l)  The Applicant was hit by the sliding Trolleys on the left side of his body, propelling him backwards, causing the right side of his body to further impact onto the gate at the rear of the cargo compartment, sustaining personal injuries as a result. 

(m)  The Co-Worker fortunately managed to jump onto and stand on the broken air conditioner, dodging the impact from the sliding Trolleys, sustaining only minor injuries to his foot.

12.  After the Accident occurred:-

(a)   In the immediate aftermath, the Applicant (accompanied by R2 Chan) was taken by ambulance to the Accident & Emergency (“A&E”) department of Princess Margaret Hospital (“PMH”) for treatment (after initially being taken to Mui Wo General Outpatient Clinic).  Physical examination showed abrasion over left lateral side of pelvis.  The Applicant was treated with analgesics, given sick leave, and discharged on the same day.

(b)  From the date of the Accident, 28 July 2013, up until 8 January 2015, the Applicant variously attended the following hospitals and clinics for further treatment:-

(i)  The A&E department, Orthopaedics and Traumatology (“O&T”) department, and Orthopaedics Trauma Clinic of Queen Mary Hospital;

(ii)  The Mui Wo General Outpatient Clinic;

(iii)  The Psychiatry Department of Pamela Youde Nethersole Eastern Hospital; and

(iv)  The Occupational Therapy Department and general clinic of Ruttonjee and Tang Shiu Kin Hospital.

(c)   The Applicant was diagnosed with a fracture of right inferior pubic rami, along with severe depressive episode with psychotic symptoms.  The Applicant from time to time suffered from persistent pain of the left and right hips.

(d)  For the aforesaid medical treatments from 28 July 2013 to 8 January 2015, the Applicant incurred total compensable medical expenses of HK$2,210.  In particular:-

(i)  The Applicant’s compensable medical expenses are subject to a daily statutory limit of HK$200 (as such expenses were incurred prior to the increase in daily statutory limit which took effect from 9 February 2018).

(ii)  The Applicant paid medical expenses of HK$100 and HK$45 respectively for 2 attendances at Mui Wo General Out-Patient Clinic, totalling HK$145.

(iii)  The Applicant paid medical expenses of HK$125 per attendance for 2 attendances (HK$80 psychiatry consultation fee and HK$45 drug charge) and HK$95 per attendance for 10 attendances (HK$60 psychiatry consultation fee and HK$35 for drug charge) at Pamela Youde Nethersole Eastern Hospital, totalling HK$1,200.

(iv)  The Applicant paid medical expenses of HK$100 for 1 attendance, HK$60 for 12 attendances, and HK$45 for 1 attendance at Ruttonjee and Tang Shiu Kin Hospital, totalling HK$865.

13.  The Employee’s Compensation (Ordinary Assessment) Board issued a Certificate of Assessment (Form 7) on 21 August 2015, which was superseded by a Certificate of Review of Assessment (Form 9) issued on 24 March 2016 (the “Form 9”).  The Form 9 certified that, as a result of her injuries suffered from the Accident:-

(a)   The necessary sick leave granted to the Applicant is a total of 378 days (28 July 2013 to 15 August 2013; 17 August 2013 to 5 September 2013; 9 September 2013 to 3 January 2014; 23 May 2014 to 26 May 2014; and 5 June 2014 to 8 January 2015); and

(b)  The Applicant’s permanent loss of earning capacity is assessed to be 5% (with 3% attributable to psychiatric component and 2% attributable to O&T component).

14.  The Applicant has filed an appeal against the Form 9 in these proceedings, in relation to the loss of earning capacity attributable to the O&T component.  In this regard:-

(a)   The Applicant’s O&T medical expert, Dr Wong See Hoi (“Dr Wong”), assessed the Applicant’s loss of earning capacity attributable to the O&T component as 4-5% in total (3% for his pelvic fracture and 1-2% for soft tissue bilateral hip contusion).

(b)  The Respondents’ O&T medical expert, Dr Lee Po Chin (“Dr Lee”), assessed the Applicant’s loss of earning capacity attributable to the O&T component as 1-2%.

(c)   The parties did not call the aforesaid O&T medical experts to testify at trial.  No previous order was obtained by the parties to dispense with the calling of such experts to testify.  However, no objection was raised by any party, and all parties made submissions to this Court on the face of the joint report prepared by the O&T medical experts.  Therefore, I am prepared to exercise my discretion as trial judge and allow the O&T medical expert evidence to be received in paper form.

(d)  Bearing in mind the approach towards assessing expert evidence as set out in Wong Siu Wa v Win Sino Engineering Ltd [2018] HKCFI 1663 (3 August 2018) at §154 per DHCJ Raymond Leung SC:-

(i)  The Applicant’s expert Dr Wong opined that the impairment resulting from the Applicant’s pelvic fracture is 3%.  Dr Wong reached and explained such conclusion with reference to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (6^th ed) (“AMA’s Guides”), which the Court of First Instance has observed to be a comprehensive, helpful, and authoritative guide to the assessment of disablement and impairment which is of considerable assistance to courts: see Chan Yue Kung v Harmony (International) Knitting Factory Ltd [2011] 1 HKC 463 at 485F-486E, §62 per Bharwaney J.

(ii)  In contrast, the Respondents’ expert Dr Lee made no reference to the AMA’s Guides at all in concluding that the impairment resulting from the Applicant’s pelvic fracture is 1-2%. 

(iii)  On balance, on the degree of impairment resulting from the Applicant’s pelvic fracture, I prefer Dr Wong’s evidence over that of Dr Lee’s.

(iv)  However, I am unable to discern from the joint report the basis on which Dr Wong opines that, in addition to the Applicant’s pelvic fracture, there should be an additional assessment of 1-2% impairment for soft tissue bilateral hip contusion.  The basis for such a distinct additional assessment is not clear.  The extract from the AMA’s Guides referred to by Dr Wong is limited to the pelvic fracture only.  I therefore do not accept Dr Wong’s evidence in this regard.

(e)  I therefore find that the Applicant’s loss of earning capacity attributable to the O&T component is 3%, and allow the Applicant’s appeal from the Form 9 in this respect.

15.  At trial, R1 Company advanced submissions that the Applicant’s loss of earning capacity attributable to the psychiatric component should be reduced or discounted, based on psychiatric medical expert evidence before the Court. However, unlike the Applicant, the R1 Company did not take out any appeal from the Form 9, and in the absence of such an appeal, the Form 9 is binding upon R1 Company as conclusive evidence of the matters stated therein: see Ng Ming Cheong v Mass Transit Railway Corp [1997] HKLRD 1231 at 1236G-1237B per Le Pichon J (as she then was).  I would therefore disregard D1 Company’s submissions in this regard.

16.  In any event, on the psychiatric medical expert evidence before the Court, I would have upheld the Form 9’s assessment of the Applicant’s loss of earning capacity attributable to the psychiatric component at 3%.  In this regard:-

(a)   The Applicant’s psychiatric medical expert, Dr Law Wun Tong (“Dr Law”), assessed the Applicant’s loss of earning capacity attributable to the psychiatric component as 3% (i.e. consistent with the Form 9).

(b)  The Respondents’ psychiatric medical expert, Dr Chow Lok Yee (“Dr Chow”), assessed the Applicant’s loss of earning capacity attributable to the psychiatric component as 1-2%.

(c)   Again, the parties did not call the aforesaid psychiatric medical experts to testify at trial.  No previous order was obtained by the parties to dispense with the calling of such experts to testify.  However, no objection was raised by any party, and all parties made submissions to this Court on the face of the joint reports prepared by the psychiatric medical experts. Therefore, once again, I am prepared to exercise my discretion as trial judge and allow the psychiatric medical expert evidence to be received in paper form.

(d)  Once again bearing in mind the approach towards assessing expert evidence as set out in Wong Siu Wa v Win Sino Engineering Ltd (supra):-

(i)  The Applicant’s expert Dr Law opined that the impairment resulting from the Applicant’s psychiatric condition is 3%, and referred to the AMA’s Guides (albeit an older 5^th edition) in reaching and explaining such conclusion.

(ii)  In contrast, the Respondents’ expert Dr Chow made no reference to the AMA’s Guides at all in concluding that the impairment resulting from the Applicant’s psychiatric condition is 1-2%. 

(iii)  On balance, on the degree of impairment resulting from the Applicant’s psychiatric condition, I prefer Dr Law’s evidence over that of Dr Chow’s. 

(e)   Therefore, even if D1 Company was permitted to advance its submissions that the Applicant’s loss of earning capacity attributable to the psychiatric component should be discounted, I would have rejected such submissions and upheld the conclusion reached in the Form 9 for the reasons set out above.

17.  In the premises, the effect of my findings above is that the Applicant’s loss of earning capacity for present purposes is assessed at 6% (with 3% attributable to psychiatric component and 3% attributable to O&T component), aggregated pursuant to ECO s.9(2).

18.  In a single paragraph in written opening submissions, R1 Company raised an issue as to causation of the Applicant’s psychiatric conditions (but not physical injuries), alleging that there was novus actus interveniens through negligence of the doctors treating the Applicant.  As held in Lo Ngau v Dodwell Shipping Ltd [1977-1979] HKC 245 at 263H-I per HH Judge Hooper (cited by R1 Company), the burden is on R1 Company to show there was novus actus interveniens as alleged.  However, the argument was not further developed in any way by R1 Company, and no particulars were given.  In the premises, R1 Company clearly fails to discharge its burden.

ASSESSMENT OF COMPENSATION

19.  The Applicant seeks compensation under the heads of ss 9, 10, and 10A of the ECO. 

20.  I adopt HK$18,850 as the monthly earnings figure of the Applicant under ECO s 11(1).

21.  Under s 9 of the ECO, compensation of permanent partial incapacity:-

(a)  The Applicant was aged 42 at the time of the Accident.  The appropriate multiplier is therefore 72 months, as per s.7(1)(b) of the ECO.

(b)  The percentage of permanent loss of earning capacity, as I have found above, is 6%.

(c)  The payable compensation under this head is therefore HK$18,850 x 72 months x 6% = HK$81,432.

22.  Under s 10 of the ECO, compensation for temporary incapacity:-

(a)  The period of sick days granted to the Applicant under the Form 9 is 378 days.

(b)  The Applicant submitted that, the following days between periods of sick leave granted should also be recognized within an overall period of temporary incapacity for purposes of compensation under ECO s 10:-

(i)  The 1 day of 16 August 2013;

(ii)  The 3 day period from 6 September 2013 to 8 September 2013;

(iii)  The 139 day period from 4 January 2014 to 22 May 2014; and

(iv)  The 9 day period from 27 May 2014 to 4 June 2014. 

(c)   Effectively, the Applicant is submitting that despite only being granted sick leave certificates for 378 days, he was incapacitated for the continuous 530 day period from 28 July 2013 to 8 January 2015.

(d)  Whilst no authority was cited to me by the Applicant, presumably the Applicant places reliance on Chan Ngan Fat v 李敬恒 (unrep, DCCJ 1382/2013, 7 October 2015) at §§32-45 per Deputy District Judge MK Liu (as he then was) to support this submission.

(e)  On the facts of the present case:-

(i)  I am prepared to recognize the 1 day of 16 August 2013 and the 3 day period from 6 September 2013 to 8 September 2013 as part of the Applicant’s overall period of temporary incapacity.  These are short periods of time immediately sandwiched by periods of sick leave before and after.

(ii)  In the absence of sick leave certificates, I am not convinced on the totality of the evidence before me that the Applicant was incapacitated in the 139 day period from 4 January 2014 to 22 May 2014 and the 9 day period from 27 May 2014 to 4 June 2014.  In particular, Applicant has advanced no explanation as to why he did not obtain sick leave certificates for these longer periods of time, if he was indeed incapacitated as now submitted.

(f)  Therefore, I take 382 days (378 days + 1 day + 3 days) as the period of temporary incapacity suffered by the Applicant.

(g)  The payable compensation under this head is therefore HK$18,850 x 4/5 statutory multiplier x 382/30 days = HK$192,018.67.

23.  Under s.10A of the ECO, payment of medical expenses, as set out above the compensable medical expenses incurred by the Applicant is HK$2,210

24.  The total amount of compensation payable by R1 Company to the Applicant is therefore:-

Pursuant to s 9 of the ECO	HK$81,432
Pursuant to s 10 of the ECO	HK$192,018.67
Pursuant to s 10A of the ECO	HK$2,210
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Total：	HK$275,660.67

ORDERS & DISPOSITION

25.  R1 Company shall pay to the Applicant compensation assessed in the sum of HK$275,660.67.  Interest shall accrue on this sum at half judgment rate from the date of the Accident to the date of judgment, and thereafter at judgment rate until payment in full.

26.  Exercising my discretion as to costs, there shall be a costs order nisi that:-

(a)   R1 Company do pay the Applicant’s costs of this action (including (1) the Applicant’s costs against R2 Chan in this action; and (2) all reserved costs and the costs of and occasioned by the adjournment of the trial originally fixed on 10 December 2019), with certificate for counsel, to be taxed if not agreed; and

(b)  R1 Company do pay R2 Chan’s costs of this action (including all reserved costs and the costs of and occasioned by the adjournment of the trial originally fixed on 10 December 2019), with certificate for counsel, to be taxed if not agreed.

27.  Unless an application to vary is made by either party within 14 days, the costs order nisi shall become absolute without any further order from the court.

28.  The Applicant’s own costs shall be taxed according to the Legal Aid Regulations (Cap. 91A).