LEUNG TSZ CHOI v. JOINT UNITED LTD

DCEC 1450/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1450 OF 2010

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BETWEEN

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JUDGMENT

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Background

1.  Pursuant to Application dated 29 November 2010, the Applicant Mr. Leung Tsz Choi ("Mr. Leung") claims for employee compensation in relation to an accident at work on 6 June 2010 under s.9, s.10 and s.10A of the Employees' Compensation Ordinance, Cap. 282, Laws of Hong Kong ("the Ordinance").

2.  Mr. Leung was employed by Joint United Limited ("the Employer") as a container cargo worker at the material time. His work involves hooking and unhooking containers to facilitate loading and unloading of containers from the container vessels onto the barge.

3.  On the day in question, while working on a container vessel lifting a heavy tool box about 200 lb. with his colleagues, the toolbox fell and hit Mr. Leung’s left big toe. He suffered a fracture distal phalanx of the left big toe as result.

4.  Mr. Leung was assessed by the Employees' Compensation (Ordinary Assessment) Board (“the Board”) in November 2010. The loss of earning capacity permanently caused by the left big toe injury was said to be 1%.

5.  Mr. Leung appeals against such assessment pursuant to s.18 of the Ordinance.

6.  Default judgment on liability was entered on 25 March against the Employer. This trial deals only with assessment of the amount of compensation payable to Mr. Leung.

7.  The Employer was absent at trial, despite being served all relevant papers.

8.  I allowed trial to proceed in the absence of the Employer.

Evidence

9.  There is only one witness at trial, i.e. Mr. Leung himself.

10.  Mr. Leung relied on the medical report prepared by Dr. Wong See Hoi dated 30 June 2011.

11.  Pursuant to the Order by HH Judge Tony Poon dated 5 August 2011, the said report was admitted as evidence without the need to call Dr. Wong to give evidence at trial.

Discussion

Compensation under Section 9

Loss of Earning Capacity

12.  As mentioned, Mr. Leung was assessed by the Board to have suffered from 1% loss of earning capacity.

13.  Mr. Leung was 41 years old at the time of the accident. I accept Dr. Wong's opinion that Mr. Leung suffered a fractured distal phalanx of the left big toe as a result of the accident.

14.  According to Dr. Wong, Mr. Leung's left big toe is expected to have "residual pain, stiffness and numbness especially on exertion, like prolonged walking and jumping, etc.".

15.  Dr. Wong assessed 3% to 4% loss of earning capacity, as Mr. Leung's job requires frequent jumping up and down containers and tip-toeing when hooking and unhooking containers.

16.  Counsel for Mr. Leung asked the Court to adopt 4% (the higher figure recommended by Dr. Wong).

17.  Mr. Leung's injury is not listed under the First Schedule to the Ordinance.

18.  Section 9(1)(b) of the Ordinance provides that, in the case of a injury not specified in the First Schedule, the compensation payable shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time, provided that (under paragraph (ii) of the proviso) the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentage specified in the First Schedule and to the Note thereto.

19.  In the First Schedule, the percentage of loss of earning capacity caused by loss of one phalanx of great toe is said to be 4%.

20.  Counsel for Mr. Leung accepts that Mr. Leung's injury (fractured distal phalanx of left big toe) is less serious than the loss of one phalanx of great toe as listed under the First Schedule, and that the loss of earning capacity suffered by Mr. Leung may not be as high as 4%.

21.  Having considered all the medical evidence before me (in particular Dr. Wong's report), I am satisfied that the appropriate percentage of loss of earning capacity in this case is 3%.

22.  As said, Mr. Leung appeals against the assessment made by the Board.

23.  In view of all the medical evidence before me, I would allow Mr. Leung's appeal and substitute 1% loss of earning capacity as assessed by 3% loss of earning capacity.

Mr. Leung's Average Monthly Earning

24.  In his Application, Mr. Leung claims that his monthly earnings for the month immediately preceding the accident was $11,700.00 and on average during 12 months (or any lesser period of employment with the employer) prior to the accident was also $11,700.00.

25.  The above is said to be subject to discovery.

26.  This amount is the same as the monthly earnings stated in Form 2, which was calculated on the following basis:

$450 daily wage x 26 days = $11,700.00

27.  In his witness statement, which Mr. Leung has adopted as his evidence in chief, it is said that his monthly earnings was calculated in the following ways:

(a) On average he was handling 9 container vessels per month, and he would be paid $1,300 per vessel, i.e. $1,300 x 9 = $11,700.00; and

(b) In addition, he and his 5 co-workers would be entitled to $22 per container handled by them. On average, the 6 of them would handle 350 containers per month so his share would be $22 x 350 / 6 = $1,283.

28.  He therefore claims that his average monthly earnings was $12,983.00 ($11,700 + $1,283).

29.  I expressed my reservation over the basis of such calculation, that the 350 containers should have been included in the containers on board the 9 vessels, and in fact the “per container” payment of $1,283.00 should have been covered by the $11,700.00 “per vessel” payment. Mr. Leung’s alleged monthly earnings of $12,983.00 seems to be the result of "double counting".

30.  It seems to me that the “per container” calculation is the other side of the same coin as the “per vessel” calculation.

31.  Mr. Leung was asked to clarify his average monthly earnings at great length during trial.

32.  At the end, Mr. Leung said that he was paid on a "per container" basis, i.e. he would be paid $22 per container to be divided with his 5 co-workers. He said that on average there was 350 containers on board each vessel and on average he and his 5 colleagues would handle 9 vessels per month.

33.  His monthly earnings, on the basis of an average of 350 containers per container vessel and 9 vessels per month, should have been $22 x 350 x 9 / 6 = $11,550.00

34.  The alleged monthly earnings of $12,983.00 in Mr. Leung’s witness statement was therefore not correct.

35.  This figure is in fact less than the average monthly earnings of $11,700.00 as stated in Form 2.

36.  Counsel for Mr. Leung accepted that he is bound by Mr. Leung's evidence at trial, and that what was stated in Mr. Leung’s witness statement in this regard was incorrect.

37.  In view of all the evidence before me, I find that Mr. Leung's average monthly earnings at the time of the accident was $11,550.00.

38.  Mr. Leung was aged 41 at the time of the accident. According to s.7(1)(b) of the Ordinance, he would be entitled to compensation equals to 72 months' earnings or 72 times the amount specified in the second column of the Sixth Schedule  shown opposite section 7(1)(b) specified in the first column of that Schedule, whichever is the less.

39.  The amount specified in the second column of the Sixth Schedule is $21,500.00. I am bound to adopt Mr. Leung's average monthly earnings in the sum of $11,550.00 in calculating compensation under section 9.

40.  For reasons stated above, I award damages under section 9 in the sum of:

$11,550 x 72 x 3% = $24,948.00

Compensation under Section 10

41.  Mr. Leung was granted sick leave by Tuen Mun Hospital ("TMH") from 6 June 2010 to 25 July 2010 and on 13 September 2010 (a total of 51 days), which was covered by the medical certificates issued by TMH.

42.  The same is certified by the Board when they assessed Mr. Leung's injury.

43.  Dr. Wong also endorsed the sick leave granted above.

44.  I am satisfied that Mr. Leung's length of absence from duty for the purpose of section 10 is 51 days.

45.  Mr. Leung confirmed that he received a sum of $8,000.00 from the Employer as periodic payment.

46.  I therefore find that the compensation payable to Mr. Leung under section 10 as follows:

($11,550/30) x 51 x 4/5 - $8,000 = $7,708.00

Compensation under Section 10A

47.  Mr. Leung claims a total sum of $1,890.00

48.  Counsel for Mr. Leung has helpfully listed out the various heads of claims in his submission, which includes the medical expenses incurred at TMH and that incurred at Hong Kong Baptist Hospital ("HKBH").

49.  The medical expenses incurred at TMH amounts to $490.00. Such expenses were supported by documentary evidence.

50.  Mr. Leung was hospitalized at HKBH from 6 June 2010 to 12 June 2010 and has incurred medical expenses to the amount of $50,728.00

51.  As rightfully pointed out by his Counsel, Mr. Leung's claim under this head is subject to the statutory maximum of $200 per day under the Third Schedule of the Ordinance.

52.  The amount claimed is $200 x 7 days = $1,400.00

53.  I allow Mr. Leung's claim for medical expenses in the total sum of $1,890.00.

Conclusion

54.  I find the total compensation payable to Mr. Leung is:

(1)   under Section 9: $24,948.00;

(2)   under Section 10:$7,708.00;

(3)   under Section 10A: $1,890.00;

                              Total=$34,546.00

55.  The above sum shall carry interest at half judgment rate from the date of accident until date of judgment.

Order

56.  Judgment is entered against the Employer in the sum of $34,546.00 with interest as aforesaid.

57.  I allow Mr. Leung's appeal against the decision of the Board under section 18 of the Ordinance, and find that Mr. Leung suffers from 3% loss of earning capacity.

58.  I also order costs to Mr. Leung, with certificate for counsel, to be taxed if not agreed.