TO YING WA v. TSANG WOON CHEUNG

DCEC No. 390 of 1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 390 OF 1999

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J U D G M E N T

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1. The plaintiff has been employed by the Respondent as a driver and delivery worker since about April, 1997 earning HK$17,000 per month. He was injured at work on 18th July, 1999. On that day, when he was carrying out delivery work in a warehouse in Kwai Chung, a forklift ran over his right foot and collided with his ankle causing injuries to his lower limb.

2. Physical examination revealed bruise, swelling and tenderness over the right foot. There was also bruise over the lateral joint line of his right knee. X-ray showed displaced fracture of the 4th and 5th metatarsus. Operation of the right foot with close reduction and K-wire fixation of right 4th and 5th metatarsus were performed on 27th May, 1997. The Applicant had undergone rehabilitation with non-weight bearing exercise in Plaster of Paris. He attended regular follow up at the Kwai Chung Out-patient Clinic and was examined there on 11th and 25th June and 9th July, 1997. The healing of the wound was considered uneventful and satisfactory. The plaster of Paris and K-wire were removed. He had to walk with clutches for quite a while.

3. As a result of the injury, he was granted 80 days of sick leave from 19th May to 6th Aug, 1997. On 24th June, 1999, he was examined by Dr. Lau Hoi Kuen, an orthopaedic specialist. R. Lau opined that clinically there was still swelling and tenderness at the non-union fracture sites. It was expected that the non-union of the metatarsal fractures would persist and the Applicant would have problem in prolonged walking, standing and driving. Dr. Lau assessed that the Applicant suffered 1% permanent disability as a result of the accident.

4. After the expiry of the sick leave, he resumed work in a restaurant as a casual worker earning HK$180.00 per day. He stayed in that job only for 1 1/2 months as he said he was still suffering from effects of the injury and that the paid was too low. He then found another job in mid-Sep., 1997 as a driver for a Tung Hing Transportation Co. Ltd. earning HK$13,000 to HK$14,000 per month. He said he had stopped work for about 1 month in April to May 1999 because of the effects of the injury. He alter resumed his job with Tung Hing. He also said that prior to the accident, he could drive for 15 to 176 hours without any problem, after the accident, he could drive 3 to 4 hours and the foot would fell very painful.

5. I am told by his solicitors that since August, 2000, he has entered into partnership with a friend and has been able to earn on the average HK$20,000 per month as a China-Hong Kong driver.

6. I am asked to assess compensation for him under sections 9, 10 and 10A of the Employees' Compensation Ordinance, Cap. 282. Prior to this assessment, the Applicant had in To Ying Wa v. Cargo-Land (Warehouse) Development Ltd. HCPI 441 of 2000 claimed against the torfesor for common law damages. Master de Souza assessed the damages for the Applicant. He said at page 7 of the judgment in relation to loss of earning capacity:

"Whether the plaintiff has, in fact sustained a loss of earning capacity, and if so, to what extent is really a matter of inference. Mr. Kwok has invited me to conclude that there is a potential for financial loss in future despite the very minor disability that the plaintiff has. This largely turns on the fact that he would require rest from time to time and experience pain with changes in weather. I conclude that an award of $80,000 for loss of earning capacity, which ash been made out, is about right. That is the amount that I award to him."

7. The Applicant's injury is not specified in the First Schedule and I should go under section 9(1)(b) of the Ordinance. The Applicant's solicitor submits that the compensation for total permanent loss of earning capacity under section 7 of the Ordinance should be $17,000 x 96 (months) or a total of $1,632,000. He further proposes that I can opt one of three approaches in assessing the amount payable under this section. The relevant part of section 9 of the Ordinance which provides:

9. (1) Subject to subsection (1A), where permanent partial incapacity results from the injury the amount of compensation shall be- (Amended 76 of 1982 s. 6)

(b) in the case of an injury not specified in the First Schedule, 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: (Amended 19 of 1964 s. 7; 55 of 1969 s. 9; 44 of 1980 s. 15)

Provided that-

(i) in the case of injury to any part of the body specified in the First Schedule not amounting to the loss of that part, the loss of earning capacity permanently caused by that injury, expressed as a percentage, shall not exceed the appropriate percentage specified in the First Schedule in respect of the loss of such part; (Added 4 of 1978 s. 3)

(ii) in the case of injury not specified in the First Schedule, 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 percentages specified in that Schedule and to the Note thereto. (Replaced 49 of 1985 s. 4)

8. The Applicant's solicitor said that I could follow the assessment by Dr. Lau and award the Applicant 1% loss of earning capacity under section 9(1)(b) of the Ordinance. Alternatively, he proposes that I could take 10% of the loss of earning capacity for the loss of the whole foot. The First Schedule specifies that the loss of earning capacity for the loss of the whole foot is at 55%. Finally, he says that I could follow Master de Souza and award the Applicant with $80,000 for this item.

9. The First Schedule specifies that the loss of earning capacity for loss of the whole foot is 55%. For loss of a phalanx other than the great, for each one toe loss, the loss is 3%. It is not appropriate to equate the loss of a phalanx with the problem that the Applicant faces. I am of the opinion that it is more appropriate to equate his loss as a small percentage of the loss of function of the right foot. I refer to Hong Kong Paper Mills Ltd. v. Chan Hin Wu [1981] HKLR 556 and Lui Kwong Yan v. Shui Hing Decoration Works & Another [1993] 1 HKLR 168. I do not agree with the assessment by the Applicant's solicitor that the loss of earning capacity should be as much as 10% of the loss of the right foot. Looking at the evidence as a whole, I am of the view that the Applicant has suffered permanent loss of earning capacity equivalent to 5% of the loss of the whole foot and I so assess. The amount payable under section 9 of the Ordinance would thus be $17,000 x 96 (months) x 55% of 5% = $44,880.00.

10. Regarding compensation payable under section 10 for temporary total incapacity, I accept that he was incapacitated for the sick leave period of 80 days and I accept the calculation proposes by the Applicant's solicitor at HK$$17,000 x 4/5 x 80/30 = HK$36,266.

11. Finally, I also accept the Applicant's evidence that as a result of this accident, he has incurred medical expenses at HK$948 and I award him this sum under section 10A of the Ordinance.

12. On interest, this claim has been withheld for quite sometime pending the process of the common law claim. I agree with the Applicant's suggestion that interest on the sums awarded be at half of the judgment rate from the issue of the Applicant to today and at the judgment rate hereafter. I finally order that the Respondent do pay the Applicant costs of this Application and the Applicant's own costs be taxed in accordance with the Legal Aid Regulations.