LAM MAN WAI AD v. ONTIME CORPORATION LTD

DCEC 1671/2018
DCPI 2649/2020
(heard together)

[2022] HKDC 1090

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1671 OF 2018

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2649 OF 2020

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JUDGMENT

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Introduction

1.  On 30 August 2017, Mr Lam Man Wai AD (“Mr Lam”) was employed by Ontime Corporation Limited (“Ontime”) as a driver and delivery worker. When he was lifting a folded trolley with both hands, his right middle finger was trapped and crushed by the locking joint of the trolley handle (the “Accident”).

2.  Mr Lam commenced two actions as a result of the accident, namely DCEC 1671/2018 and DCPI 2649/2020. Interlocutory Judgment on liability has been entered against Ontime in both actions. This trial is in relation to quantum. Mr Lam was the only witness and Ontime was absent at the hearing.

Injuries and treatment

3.  Mr Lam was admitted to the Department of Orthopaedics & Traumatology (“O&T”) of North District Hospital (“NDH”) on 30 August 2018. Physical examination revealed a 2-cm horizontal laceration over the distal phalanx of the Mr Lam's right middle finger. The nail plate was avulsed and the nail bed injured. Its distal neurovascular status was intact and the movements were full. Pain radiographs confirmed a DP fracture at the right middle finger. Wound exploration, nail bed repair and K-wire fixation of the facture was performed. K-wire was removed 6 weeks afterwards.

4.  Mr Lam completed 10 sessions of physiotherapy from 25 October 2017 to 8 January 2018. During objective assessments at the last assessment, Mr Lam reported about 10% decrease light touch sensation over right middle finger pulp.

5.  Mr Lam also attended occupational therapy sessions at NDH from 17 July 2017 to 24 April 2018. At the final assessment, Mr Lam's abilities were found marginally met with demands of his previous job as a manual worker for slaughtered pig, and he was able to cope with the demand of previous job upon consideration of reducing weight of objects and use bilateral hands in pulling action.

The assessment by the Board

6.  Mr Lam was assessed by the Employees' Compensation (Ordinary Assessment) Board (the “Board”) on 28 May 2018. The assessed injury was “right middle finger injury resulting in right middle finger numbness”. The loss of earning capacity permanently caused by the injury was assessed at 0.5%. The period of absence from duty was assessed from 30 August 2017 to 28 May 2018.

Joint Medical Report

7.  Mr Lam was jointly examined on 25 September 2020 by his own appointed orthopaedic expert, Dr Law Yee Cheong Wally (“Dr Law”) and the Ontime's appointed orthopaedic expert, Dr Chun Siu Yeung (“Dr Chun”).

8.  At the examination, Mr Lam’s complaints included:

8.1.  Right middle finger pain, weakness and numbness: he said he had intermittent pain, weakness and numbness on the right middle finger form DIPJ and distal phalanx, with exacerbation during direct pressure and heavy lifting of about 5kg in weight; and

8.2.  Left wrist pain: he said he had continuous pain on the left wrist ulnar side with exacerbation during movement and local pressure, pushing actions (like pushing a glass door), lifting about 10 kg bag of rice caused no problem but he could not press the palm with force (supporting himself with left palm); pain intensity varying from VAS 2-3/10 to 5-6/10.

9.  Physical examination, inter alia, revealed:

9.1.  His right middle finger had a faint scar on the radial side of pulp and eponychium, or 0.8 cm in length without pigmentation or hypertrophy;

9.2.  His nail plate had a deformity with a longitude ridge;

9.3.  There was mild swelling at the DIPJ; and

9.4.  The sensation to light touch was reduced by about 10% to 20% on the right middle finger pulp and DIPJ.

10.  The diagnosis was open fracture of right middle finger distal phalanx, with laceration of nail bed and nail avulsion, and residual right middle fingernail deformity.

11.  Dr Law opined that it was likely that the right middle finger injury was solely related to the subject accident on 30 August 2017.

12.  On the other hand, Dr Chun disagreed and opined that Mr Lam’s pre-existing left wrist condition should account “at least for 30% of the cause of the right middle finger injury”. His reasons were as follows:

12.1.  Mr Lam had a prior accident on 5 June 2017 when he suffered a fracture of his left distal radius. He was treated with plaster immobilization for 28 days. He was still pending physiotherapy at the time of the Accident. He had occupational therapy for the left wrist since 16 July 2017. When X-ray left wrist was taken in August 2017, the left wrist fracture was just healed. According to medical certificates, he had sick leave until 22 November 2017 for the left wrist fracture. In other words, on the day of the Accident, he was still having sick leave for his left wrist injury with on-going rehabilitation program with residual weakness and stiffness. He was only referred to the Board for the left-wrist injury on 12 October 2017, which indicated that his left wrist condition had not reached a static state on the date of the Accident. Even by 4 January 2018, he still had left TFCC wrist pain and range was not yet completely full.

12.2.  During the joint examination, Mr Lam volunteered that at the time of the Accident, because of his left wrist/hand weakness, the force used on both hands were uneven when he handled the locking joint of the trolley handle. As a result, his right middle finger was trapped and crushed by the locking joint.

12.3.  If the left wrist/hand was of normal strength, the unevenness of force would not be of significant difference. The greater force acting upon the right hand was most probably responsible for at least a portion of the right middle finger injury.

12.4.  Therefore, “with the pre-existing left wrist condition, he falls within Category I to Category II, more towards Category II, that there is a fairly strong possibility that he would have the right middle finger injury”.

13.  Dr Law opined that Mr Lam should have reached maximal medical improvement. The longitudinal ridge at the nail plate caused attrition and might catch fabrics of clothing. The findings of mild weakness of right hand grip strength and reduced sensation to light touch on the pulp were consistent with medical records. Such disabilities would likely to be permanent. Mr Lam would be restricted in vocational performance, recreational involvement, and domestic activity.

14.  On the other hand, Dr Chun opined that Mr Lam’s complaint of right middle finger weakness was not consistent with the medical documentation and the objective findings of handgrip power of 57 kg on 24 April 2018. The range of finger motions were full. The reduction of light touch sensation was not consistent with the documented numbness at the finger-top. His handgrip power on the right hand was very good at the joint examination in comparison with the left hand grip power which showed some deterioration from April 2018. The same should not be related to the Accident. There was no wasting of the right upper limb musculature to suggest disability.

15.  Dr Law noted that the NDH occupational therapy department remarked in April 2018 that Mr Lam’s physical capacity marginally met with his pre-injury job demand. The hand grip on the right hand was 57 kg and left hand was 48 kg, with left wrist pain on forceful lifting and pushing. He opined that if Mr Lam were to resume working in his pre-injury work as a delivery work, he would require major modifications in his work with major reduction in heavy lifting. Mr Lam’s physical capacity was suitable for other occupations with lighter physical demand, including other driving work like school bus or family driver, fast food delivery, or gas station worker.

16.  Dr Chun disagreed and opined that Mr Lam was able to continue with his pre-injury occupation from the right middle finger injury without limitation or restriction.

Mr Lam’s pre-accident monthly income

17.  Mr Lam testified that his average monthly pre-accident income was about $33,000, of which $15,000 was paid in cheque and about $18,000 was paid in cash at the request of Ontime. According to Mr Lam, Ontime explained to him that it would be difficult to buy insurance if the correct (but higher) salary was provided. Due to his low level of education and the fact that life was difficult, he acceded to such request without giving much thought to it. According to his understanding, his colleagues also had the same arrangements with Ontime.

18.  Regarding calculation of his salary, Mr. Lam said he would receive $10 per pig delivered, and he delivered about 110 pigs per working day. He worked 6 days a week.

19.  According to the list of earnings filed by Ontime, Mr Lam’s salary before the Accident was $15,000.

20.  After considering all the evidence, I find that Mr Lam has failed to prove that he was paid an additional amount of about $18,000 per month before the Accident, for the following reasons:

20.1.  Apart from Mr Lam’s allegation, there is no documentary evidence in support his case;

20.2.  It is unclear why it would be difficult to buy insurance if the correct (but higher) salary was provided; and

20.3.  According to the “Employer's Return of Remuneration & Pensions”, Ontime had not reported the alleged additional salary of Mr Lam to the Inland Revenue Department. As such, Ontime would incur unnecessary tax liability as such additional expenses were not deductible from their revenue. The same does not make commercial sense.

21.  On the other hand, I note that according to “Employer's Return of Remuneration & Pensions”, Mr Lam was paid a sum of $40,000 and $48,000 for "other Rewards, Allowances or Perquisites” for the year from 1 April 2015 to 31 March 2016 and the year from 1 April 2016 to 31 March 2017 respectively. Mr Lam explained those sums were discretionary bonuses. I think such bonuses should be included in the calculation of Mr Lam’s salary.

22.  In the circumstances, Mr Lam’s pre-accident monthly income should be calculated as follows:

($15,000 x 12 + $48,000) / 12 = $19,000.

Section 18 appeal

23.  It is trite that in an appeal under s18 of the Ordinance, the court has to consider the matter afresh by taking all circumstances into account. As explained by Hunter JA in Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115 at 118D:

“… the court’s jurisdiction appears to be appellate. But one has then to remember that these boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons so that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded, it is plain that a court approaching this matter has really got to start afresh.”

24.  Further, in Kan Wai Yip v Everbest Port Services DCEC 383/2008 (unreported, 3 February 2009). Her Honour Judge Marlene Ng (as she then was) said that (at paragraph 43) that:

“43. The rationale as explained in Tsang Shau Tsan is straightforward – LOEC is a combination of various factors which include the injuries suffered by the employee and the resulting impairment as well as other matters of fact such as the employee’s age, education and background, his degree of difficulty in finding placement in the labour market and a comparison of the earnings that he is capable of with his impairment and the earnings he would have been able to make but for his injuries. These other factors concern matters of fact, and it is for the judge hearing the case as arbiter of fact to evaluate such factual evidence as well as the medical evidence and then come to his own assessment of the LOEC.”

25.  Mr Lam, submits that the loss of earning capacity he suffered should be assessed at 2%, as opined by Dr Law, instead of 0.5% as determined by the Board.

26.  I have summarized above the opinions of the expert regarding Mr Lam disability. I prefer the evidence of Dr Chun. Dr Chun had pointed out in the joint report several important inconsistencies between Mr Lam’s complaints and the objective medical evidence, which had not been rebutted by Dr Law. I find that Mr Lam had exaggerated his disabilities when he said he could not return to his previous job due to severe pain at his right middle finger.

27.  In conclusion, I find that the assessment of 0.5% by the Board is appropriate. Mr Lam’s section 18 appeal is dismissed.

Pre-existing injury

28.  As stated above, Dr Chun opined that Mr Lam’s pre-existing left wrist condition should account “at least for 30% of the cause of the right middle finger injury”. He said “with the pre-existing left wrist condition, he falls within Category I to Category II, more towards Category II, that there is a fairly strong possibility that he would have the right middle finger injury”. Although Dr Chun had not mentioned it specifically, he was obviously referring to the 3 categories in Chan Kam Hoi v Dragages et Travaux Publics [1998] 4 HKC 523.

29.  On the other hand, Dr Law opined that Mr Lam’s left wrist injury had satisfactorily recovered before the Accident. The Accident was not caused by the left wrist condition.

30.  With respect, I do not think Chan Kam Hoi is relevant in the present case. Chan Kam Hoi deals with the different possible impacts a pre-existing condition may have on the plaintiff’s current disability and whether reduction should be made in respect of the different scenarios. In the present case, there was no pre-existing injury at Mr Lam’s right wrist. The previous injury at the left wrist is entirely irrelevant in this regard. On the other hand, the issue that Mr Lam’s injured left wrist might have partially caused the Accident may arguably to have relevance on the issue of contributory negligence. However, as contributory negligence is not a pleaded issue in the present case, I do not need to consider the extent, if any, for which Mr Lam should be liable for contributory negligence on the ground that he had chosen to commence work when he was still under sick leave and his left wrist was still under treatment.

The claims in DCEC 1671/2018

Section 9 of the Ordinance: Compensation in case of permanent partial incapacity

31.  At the time of the Accident, Mr Lam was aged 48. According to section 7(1)(b) of the Employees' Compensation Ordinance (Cap 282) (the “Ordinance”), compensation would be assessed with reference to 72 months' earnings.

32.  Therefore, the compensation under section 9 should be:

$19,000 x 72 x 0.5% = $6,840

Section 10 of the Ordinance: Compensation in case of temporary incapacity

33.  The Board certified the period from 30 August 2017 to 28 May 2018, a total of 272 days.

34.  Therefore, the compensation under s 10 of the Ordinance should be assessed at: $19,000 x 272/30 x 4/5 = $137,813

Section 10A of the Ordinance: Payment of medical expenses

35.  I allow medical expenses in the sum of $660 as claimed by Mr Lam.

Periodical Payments

36.  Mr Lam has received a total sum of $104,600 as periodical payments from Ontime.

Summary

37.  In summary, the various heads are as follows:

Section 9	$6,840
Section 10	$137,813
Section 10A	$660
(Periodic payments)	($104,600)
Total:	$40,713

38.  Mr Lam is also entitled to interest at half judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate.

The claims in DCPI 2649/2020

PSLA

39.  Mr Lam claims damages of not less than $200,000.

40.  I have reviewed the cases cited on behalf of Mr Lam including Shah Junaid Ali v Yau Lee Galvanizers (Hot-Dip) Company Limited DCPI 517/2008 (unreported, 14 April 2009), Chan Ming Yat v Youh Eng Lai Michael trading as Prime Industrial Company (Hong Kong) DCPI 201/2003 (unreported, 5 June 2004), Wong Yun San v Cheung Yue Yiu trading as Radio Engineering Co DCPI 1909/2007 (unreported, 21 July 2008) and Li Wai Ming v Tang Siu Fat trading as Hing Fat Engineering Co & Anor HCPI 512 of 2006 (unreported, 23 December 2008).

41.  Taking into account Mr Lam’s moderate injuries and disabilities, his treatment history, his personal circumstances and medical evidence, I find the appropriate award to be $140,000.

Pre-trial loss of earnings and MPF

42.  Dr Law opined that sick leave given until 28 May 2018 was appropriate. He noted that occupational therapy at NDH last until 24 April 2018 and on 26 April 2018, the NDH orthopaedic clinic still recorded right middle finger numbness.

43.  On the other hand, Dr Chun noted that Mr Lam was referred to the Board for the right middle finger injury on 1 March 2018. He opined that Mr Lam’s condition had reached maximal medical improvement by that stage. He said there was no more medical rationale in giving sick leave after 1 March 2018.

44.  I do not find Dr Chun’s said opinion to be convincing. The fact that Mr Lam might have reached maximal medical improvement by 1 March 2018 does not mean that he would not require further sick leave after that date. On this matter, I prefer the evidence of Dr Law. I will therefore allow the full period of sick leave until 28 May 2018.

45.  The total loss of earnings and MPF during sick leave period is therefore:

$19,000/30 x 272 x 1.05 = $180,880

46.  I do not accept that Mr Lam was unable to return his pre-accident employment after the expiry of sick leave by reason of the alleged residual disabilities. On the other hand, I think it is reasonable to allow 2 months for him to find employment. As such, he is entitled to:

$19,000 x 2 x 1.05 = $39,900

Future loss of earnings

47.  For reasons explained above, Mr Lam is not entitled to any future loss of earnings.

Loss of earning capacity

48.  I think an award of a global sum of $50,000 is appropriate under this head.

Special Damages

49.  Mr Lam’s claim for a total sum of $2,660 (for medical expense ($660), traveling expense ($1,000), tonic food ($1,000)) are allowed.

Summary

50.  In summary, the various heads are as follows:

PSLA	$140,000
Pre-trial loss of earnings	$180,880
Future loss of earnings	-
Loss of earning capacity	$50,000
Special damages	$2,600
(EC award)	$40,713
Total:	$332,767

51.  Mr Lam is also entitled to claim interest on the damages for PSLA at 2% per annum from the date of the Writ to the date of judgment and interest on pre-trial loss of earning and special damages at half judgment from the date of the Accident to the date of judgment and thereafter at judgment rate.

Costs

52.  I make an order nisi that Ontime shall pay Mr Lam’s costs in both actions (including all costs reserved, if any) to be taxed if not agreed. Mr Lam’s own costs be taxed in accordance with the Legal Aid Regulations.