LUI KWOK MING v. PANG LEE TRANSPORTATION CO LTD

DCEC 1684/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1684 OF 2011

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J U D G M E N T

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Background

1.  This is an assessment of compensation of a cross‑border truck driver.  Interlocutory judgment on liability was obtained on 24 July 2012 with compensation to be assessed.

2.  The applicant met an accident on 16 August 2010 when he was employed by the respondent as a cross‑border truck driver.  The traffic accident took place in Shenzhen on a highway when the applicant was driving the truck back to Hong Kong.  The accident involved another vehicle which cut in to the applicant’s lane, resulting in collision with the kerbside when the applicant swerved to the right to avoid collision with the other vehicle.

3.  The applicant was thrown out of the truck and was unconscious at the time of the accident.  He was sent to Shenzhen Sha Wan Hospital for emergency treatment, and was later transferred to North District Hospital in Hong Kong that evening.

4.  At the A&E Department of North District Hospital, the applicant was found to have multiple abrasions at his left forearm, right lateral chest wall, back, right thigh and left lower limb.  He complained of low back pain.  X-ray showed there was anterior fracture of his L2 vertebra.

5.  He was then admitted to the Department of Orthopaedics and Traumatology.  On 20 August 2010, the applicant received an operation for posterior spinal fusion of his L1 to L3 vertebrae.  He had to put on a rigid spinal orthosis after the operation and was discharged on 27 August 2010. Thereafter, the applicant received physiotherapy and occupational treatment.

6.  Another operation was done on the applicant to remove the surgical implants on 28 April 2013.  After the above treatment, the applicant still complains of low back pain and low right limb pain and numbness.

7.  The Form 7 assessed the applicant’s loss of earning capacity at 17%.  A revised assessment as per the Form 9 is 20%.  The Medical Assessment Board certified sick leave from 17 August 2010 to 16 August 2013 for about three years.

8.  The applicant took out the present employees’ compensation claim in 2011, claiming compensation against the respondent under sections 9(1A), 10 and 10(A) of the Employees’ Compensation Ordinance, Cap 282.

9.  The respondent has all along been absent for all interlocutory hearings.  The assessment hearing was conducted in the absence of the respondent.

The Evidence

10.  The applicant himself gave evidence in court by adopting his two witness statements and updated his present physical conditions.  He also called a friend, Mr Siu, who is a container truck driver working at the container terminal, telling the court about the working conditions as a truck driver at the terminal.  Besides, the applicant has instructed Dr Danny Tsoi to prepare an expert report dated 4 November 2014. Such expert report was adduced as evidence without calling Dr Tsoi to give oral evidence.

11.  The gist of Dr Tsoi’s opinion is that:

(i) the L2 fracture and the applicant’s current back and right lower limb pain and numbness are genuine and caused by the accident;

(ii) the applicant is expected to live with residual back soreness, weakness upon exertion, and stiffness for the rest of his life;

(iii) the applicant would not be able to resume to work as a cross‑border driver as it would require him to drive continuously for eight to nine hours;

(iv) if the applicant resumes working as a driver, he should only drive shorter routes and to take breaks between every 10 to 15 minutes after driving for 19 to 120 minutes;

(v) the applicant would be suitable to work as a petrol station attendant, store assistant, security guard, light duty messenger or car park attendant;

(vi) the applicant’s loss of earning capacity should be 20%, and sick leave up to four months after the removal of the implants, ie end of August 2013, was appropriate.

12.  The applicant’s witness statements cover his personal background.  Mr Lui was born in 1962 and received education up to junior secondary level in China.  He also told his pre‑accident work and income, the accident and treatment after the accident. 

13.  Mr Lui was unable to take up any employment after the accident.  He told the court his latest physical conditions.  He still suffers from back pain and stiffness of the back after walking for over two hours.  Recently, after he had pushed his father’s wheelchair for a day, he also felt back pain.  The injury also affects his daily life.  He has to take a break after doing housework for half an hour to relax his stiff back problem.  Due to the back pain and stiffness, Mr Lui thinks that he could not work as a driver any more, not even driving a smaller‑sized vehicle such as a public light bus or taxi.

14.  His future plan is to look for such jobs as recommended by Dr Tsoi, such as a petrol station attendant or security guard.  Mr Lui also explained some of the income records when he made complaints to Labour Department and MPF Authority against the respondent.

15.  The second factual witness, Mr Siu Chan‑sin, mainly told the court about the working conditions as a container truck driver in the container terminal.  His evidence corroborates the applicant’s evidence that such working conditions do not suit the applicant’s working capacity.

16.  According to Dr  Tsoi’s recommendation, the applicant is only suitable to take up less demanding jobs. Dr Tsoi in fact has never suggested the applicant to resume working as a driver. Dr Tsoi only said if the applicant wishes to go back to work as a driver, he would recommend the applicant to drive shorter routes and to take breaks.

The Assessment

17.  In the absence of any contradictory evidence from the respondent, I attach full weight on the applicant’s evidence, his witness’ evidence and the expert evidence on the balance of probabilities.

The Applicant’s Monthly Earnings at the Time of the Accident

18.  I accept that the applicant was employed by the respondent since 16 October 2001.  He was then employed for almost nine years by the time of the accident.  His monthly income immediately preceding the accident in July 2010 was HK$25,433.  For the 12 month average before the accident, it was HK$18,844.92.

19.  I agree with Mr Cheng, counsel for the applicant, that section 11(1)(a) of the ordinance should apply to determine the applicant’s monthly earnings at the time of the accident.

Loss of Earning Capacity

20.  Mr Cheng submits that there are special circumstances to justify using the Hong Kong Paper Mills formula.  Such special circumstances in the present case include:

(i) education background;

(ii) degree of difficulty faced by the applicant in finding placement in the labour market and the enhanced likelihood of the applicant being laid off in the event of any downturn of the economy.

21.  The applicant received education only up to secondary level in China, and he does not know English.  He started working as a driver since 1986, and this is his only skill.  He cannot resume working as a cross‑border driver, nor can he take up any work as a driver at all.  He is 53 years old and he can hardly take up new skills for a job.  Furthermore, his physical condition prevents him from taking up most types of job except sedentary ones with low pay.  Therefore, he stands to face a substantial reduction of income.

22.  Mr Cheng submits that the applicant’s assessed loss of earning capacity at 20% does not reflect his actual loss of earning capacity.

23.  The applicant refers to the latest statistics released in the Quarterly Report on Wage and Payroll Statistics of March 2015.  A security guard working eight-hour shifts earns an average of HK$9,403 per month.  Mr Cheng, for the applicant, submits that this is a suitable comparison.

24.  By applying the Hong Kong Paper Mills formula[1], the applicant’s loss of earning capacity becomes:

     (18,844.92 – 9,403) ÷ 18,844.92 × 100% = 50.10% 

25.  The alternative submission is to invoke section 18 to revise the loss of earning capacity.

26.  After consideration, I agree with Mr Cheng’s primary submission that it is appropriate to apply the Hong Kong Paper Mills formula, and I accept 50.10% as loss of earning capacity.

The Claim under Section 9 for Permanent Partial Incapacity

27.  The applicant was 47 years old at the time of the accident.  Mr Cheng submits 72 as the multiplier.  The statutory maximum monthly earnings for the purpose of section 9 at the time of the accident was HK$21,500.  Therefore, the compensation under section 9 is calculated as follows: 

     HK$21,500 × 72 × 50.10% = HK$775,548

Compensation under Section 10 for Temporary Incapacity

28.  The applicant relies on section 10(5) of the ordinance to extend the period of temporary incapacity to 36 months.  The applicant submits that under section 10, the monthly earnings on which the lump sum award to be based is not capped by the 6^th schedule of the ordinance.  Therefore, the applicant submits that HK$25,433 should be adopted for the purpose of section 10 as the multiplicand.

29.  I agree with the applicant’s submission, and the compensation under section 10 is awarded as follows: 

     HK$25,433 × 4/5 × 36 = HK$732,470.40

Compensation under Section 10A for Medical Expenses

30.  There is supporting evidence to show that the applicant spends HK$4,200 at the Government hospitals in Hong Kong.  I allow such sum in full.

Conclusion and Order

31.  The summary of the compensation is as follows:

(i) Section 9	HK$ 775,548.00
(ii) Section 10	HK$ 732,470.40
(iii) Section 10A	HK$ 4,200.00
Total:	HK$ 1,512,218.40

32.  Since the applicant has never received any advance payment, the above sum needs not be deducted.

33.  I also award interest on the above compensation at half judgment rate from the date of the accident to the date of judgment and at judgment rate thereafter until payment.

Costs

34.  I certify that the present case is suitable for counsel’s attendance and I give the usual costs order that costs of the application be to the applicant to be taxed if not agreed, and the applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

[1] Hong Kong Paper Mills formula in Hong Kong Paper Mills Ltd v Chan Hin-wu [1981] HKLR 556 as modified by the Court of Appeal in Lui Kwong Yan v Shui Hing Decoration Works [1993]1 HKLR 168.