LAU MAN KEUNG v. YIN WING CONSTRUCTION CO. LTD.

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 243 OF 1999

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J U D G M E N T

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1. In this matter, the applicant, Mr Lau Man-keung, claims compensation under various sections of the Employees' Compensation Ordinance, Cap. 282, and he also appeals to this court against an assessment by the Employees' Compensation (Ordinary Assessment) Board dated 29 December 2000.

2. The applicant was injured on 6 March 1998 in the course of his employment with the respondents whilst working as a general labourer at a building site at Tseung Kwan O, New Territories. Originally, the respondents put in an Answer denying liability on the basis that the applicant had not sustained his injuries whilst in the course of his employment, but during the course of the first morning of the trial, liability was admitted by them and so this Judgment is only concerned with the assessment of compensation which should be paid to the applicant.

3. I start with a brief recital of how the applicant came to be injured and of the injuries that he sustained. There is no doubt that he was only employed to work on this particular building site as an unskilled general labourer, mostly involved in keeping the site free of debris and tidy and moving soil which he would load onto a wheelbarrow and take away to wherever he was instructed to take it on the particular occasion. Relatively speaking, this is classed as 'light work' in terms of the sort of tasks that workmen are engaged on in the building and construction industry.

4. There is a dispute as to what he had been instructed to do when he was injured. He says that his foreman, Mr Wong Fai-leung(?), had instructed him to assist a Mr Chan Chi-kit to demolish the rubbish chute by which debris is removed from the various floors of the building as it is in the course of being erected. These chutes are made of metal barrels with their tops and bottoms removed which are then welded together to form a continuous chute down to the ground. At each floor, an opening is made into the chute with a tray coming from that opening to the edge of the building so that debris can be introduced into the chute from each floor. Dismantling a chute is skilled work in that it requires a welder using an oxyacetylene torch to cut the welded joints of the barrels in order to break down the chute. From time to time, the chute becomes blocked by debris and this needs to be loosened manually, usually by a workman jabbing at and manipulating the blockage by means of a long bamboo pole. This is routinely done when the chute is in use and it also needs to be done before the chute is dismantled.

5. The applicant was required to assist the skilled welder in this dismantling process. He did not and could not use the welding cutting equipment. The applicant and Mr Chan demolished three chutes. He was injured during the course of the demolition of the fourth, which had become obstructed. They were working on the ninth floor. The applicant went to a point below the obstruction to see what was required to clear it. As he was sawing at a piece of bamboo that formed part of the blockage, Mr Chan, who was above the obstruction, did something to the debris that was causing the blockage so that it became loose and crashed onto the applicant below.

6. He says the impact caused him to become unconscious for a short period but he was eventually able to get to his feet and make his way to hospital. Apart from a general dusting from the debris and some bruising, his main injuries were fractures of the eighth and ninth ribs on the right chest with a possible fracture of the tenth rib as well. He also sustained injuries to his teeth, although this is not accepted by the respondents. I will need to consider the medical evidence in more detail presently.

7. As to the circumstances of this accident, an issue has arisen in respect of the applicant's earnings. He says that after completion of the demolition of one chute, he was paid a thousand dollars extra by Mr Wong through Mr Chan and that his wages in February were $3,000 more than his usual rate of pay as an unskilled labourer. The respondents deny that this is so because it is submitted on their behalf that this would put him into the bracket of pay for a skilled worker, which he was not. Accordingly, the applicant requires the court to have regard to this additional payment in computing his compensation. I can dispose of this point shortly.

8. I accept the applicant's evidence that he was paid extra for this work, this being more strenuous labour than his routine work, but I am satisfied that this was an ad hoc payment which is outside the definition of earnings, as set out in section 3(1) of the Ordinance, because it falls within the exclusion of a casual payment of a non-recurrent nature. This being my view, I shall take the applicant's earnings for the purposes of my assessment of compensation as $9,421 per month, which is an agreed figure, subject to the question of the $3,000 which I have just disposed of.

9. Before I come to the medical evidence and my view of the applicant's loss of earning capacity and his ability to find other employment, all of which is the subject of sharp dispute between the parties, it is helpful to give a brief biographical note about the applicant.

10. He was born in China in October 1938 and so he will shortly turn 63. He completed secondary education in China and did not come to live in Hong Kong until 30 May 1997, so he is a relative newcomer. He speaks Hakka and gave his evidence in that dialect. His Cantonese is not good. For 30 years or so, he worked as a clerk in a large Government Department Store in China. After he arrived in Hong Kong, he found work as a general assistant or helper at a restaurant and worked there for about two months, but as he has bad hearing, particularly in the right ear, he had to give up this work. Following this, he was introduced to work for the respondents on 24 October 1997 until he was injured in March the following year. Save for a brief period in June 1998 when he returned to work on this building site but gave up due to pain caused by the rib fractures, he has not been employed since.

11. There is a lot of material in the form of clinical notes from Government hospitals and clinics concerning the applicant's injuries, his treatment and the course of his recovery. The parties have also instructed and obtained reports from independent specialists in orthopaedics, Doctor Au for the applicant and Doctor Lee for the respondents. Not surprisingly, on an uncomplicated matter such as this, the views of these two medical experts is virtually identical and, albeit late in the day, their reports have been agreed. I need only summarise the medical findings.

12. Doctor Fung of the United Christian Hospital, has prepared a short report dated 12 March 1999 (see page 401). The applicant was seen at the hospital on 6 March 1998. On examination, there was mild tenderness on the right side of his chest and a small area of abrasions on the inner, lower side of his left leg, right elbow and right chest. X-rays showed a fractured ninth rib without associated complications. In fact, it would appear that the eighth rib was also fractured and perhaps the tenth as well. He was treated by intramuscular analgesic injection prior to discharge on the same day.

13. He was then reviewed on several occasions at the hospital, seven in all. Thereafter, he attended the Jockey Club Clinic closer to his home. He was given Sick Leave Certificates by the doctors to cover the two year period immediately following the accident and on the basis of those certificates, he has been paid periodical payments by the respondents totalling $163,600, for which credit must be given against any award that I make as a result of this Judgment.

14. He also consulted the Dental Clinic at United Christian Hospital and the relevant notes appear at page 442. This was in May 1998. Mr Sakhrani has suggested that this treatment was not related to the accident. He says that largely because there is no reference to damage to the teeth or mouth in the original admission notes. Quite understandably, Mr Sakhrani submits that one would have expected some reference to this if he had made such a complaint on admission. He also points to an inconsistency as to how these injuries are said to have been caused. The dental notes refer to the head having hit the ground, having caused the damage to the teeth, but this is not the account given to the court which is one of the debris falling on him from above. Nevertheless, having heard the applicant and having regard to the circumstances of the accident, I am satisfied that this incident is of the type that would cause, amongst other injuries, an injury to the mouth that would damage teeth, requiring the sort of treatment described in the dental notes (see also Doctor Poon's Dental Report, page 402). This dental treatment has been successful but will have no impact on compensation in this case, although it would sound in damages in an action for personal injuries.

15. I have also referred to the applicant's hearing difficulties. He had suggested that this may have been compounded by the accident, but having regard to Doctor Herman Tsang's(?) report and tests starting at page 412, I can safely discount that suggestion. The accident has had no effect on this pre-existing condition.

16. The applicant's case is that notwithstanding the fact that the rib fractures have united, the residual pain at the fracture site means that he cannot meet the physical demands of his previous employment on the building site. Nor has he been able to resume any sort of employment of a less physically demanding nature, this due to a combination of factors, including pain and discomfort, but also his age, his poor hearing, his lack of convincing Cantonese and the fact that he is a relative newcomer to Hong Kong.

17. This, of course, is all challenged by the respondents. Doctor Au's report makes clear that the fractures have united satisfactorily and that his movements are effectively trouble-free and consistent with what one might expect for a gentleman of his age. As to employability, Doctor Au says that he may not be able to return to his previous employment but that lighter duties are more appropriate for him, such as a watchman, light factory worker, officer assistant, messenger, cleaner or car park attendant.

18. Doctor Lee for the respondents is more robust about this. He says that there is no doubt that he could return to his previous duties on a building site, given the fact that they are light in terms of what a construction worker may be required to do.

19. The other issue relates to when he should have been expected to return to work. Mr Ho, who appears for him, says that he is permanently incapacitated and calculates compensation on that basis. Mr Sakhrani says that he should have been back at work no later than 12 months after the accident.

20. I have formed a rather unfavourable view of the applicant's resolve to get back to work. He seems to have just given up. But I have seen a surveillance video of him taken shortly before trial showing him riding a bicycle, walking and going up and down stairs. This video film, together with the medical evidence, leads me to the conclusion that the respondent could and should have been back at work no later than 21 months after the accident. In coming to this view, I have erred on the side of generosity towards the applicant. He does have difficulties in terms of his age, hearing and all the other factors that I have drawn attention to. I accept he is not a strong candidate in the labour market. He is also in receipt of two years' worth of Sick Leave Medical Certificates. I have also had regard to these in coming to my conclusion on this aspect.

21. Mr Ho relies on section 10(2) of the Ordinance, which contains a deeming provision that such certified periods are to be considered as periods of total temporary incapacity. I have had regard to this provision. But, now that all the evidence has become available, I am unable to say that the full 24 period is justified in a case of what is, after all, minor injury. Any presumption that may flow from the subsection has been amply rebutted by the evidence as a whole. Nevertheless, I have also had regard to all of the applicant's circumstances in coming to the view that a 21 month period is justified and I shall assess the matter on this basis.

22. Mr Ho has submitted that I should deal with this as a case of permanent total incapacity, but that is putting the matter much too high. In the way of these things, this was fortunately a minor injury that has healed and the applicant should have been back at work by no later than 6 December 1999.

23. On the medical evidence, I prefer Doctor Au's assessment that it may be difficult for the applicant to resume his previous employment. There is some residual pain. I also cannot ignore his age. It is a bit much for a man of over 60 to be expected to return to a building site, especially after an alarming incident on the type that caused him to be injured in this way. I find that he should be doing the lighter type of work, which Doctor Au has set out at page 410 of the Bundle.

24. I therefore assess compensation as follows:

Under section 9, the loss is $9,421, multiplied by 48, multiplied by 1 per cent, which equals $4,522. I see no reason to disturb the Medical Assessment Board's percentage finding for loss of earning capacity. That being so, his appeal against that finding must stand dismissed.

25. The section 10 award will be $9,421, multiplied by 80 per cent, multiplied by 21 months, which equals $158,272. 80 per cent of $9,421 is $7,536, which is the sort of amount the applicant could reasonably expect to earn after he took up lighter employment of the type that Doctor Au has described (see the Government statistics which counsel have helpfully showed me for these type of employments). Therefore, it seems to me, the sum of $158,272 fully compensates the applicant under this head.

26. The section 10(a) award for medical expenses is agreed at $3,977, which therefore gives a total of $166,771, to which there must be added interest at half the judgment rate of 5.43 per cent for 41 months. But, as credit must be given for payments already received by the applicant, I will first hear submissions from counsel before I finally rule on the question of interest, and of course on the question of costs.

(Submissions on the question of interest and costs)

27. The costs of the application will be to the applicant until 19 July and thereafter to the respondents.

(Submissions re Certificate for counsel and costs)

28. There will be certificate for counsel and Legal Aid taxation of the applicant's costs.