SAFDAR MOHAMMAD v. WISE EXPRESS CORPORATION LTD

DCEC 1418/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1418 OF 2006

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BETWEEN

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ASSESSMENT OF COMPENSATION

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1.  The applicant applies for compensation under Sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap. 282 of the Laws of Hong Kong.

2.  Judgment in default against the respondent was granted by the court on 11 November 2008.  The assessment of damages is heard today.

3.  The applicant was born on 2 December 1962.  He was employed by the respondent to work at its factory and warehouse in Tuen Mun since June 2004 as a warehouse worker.  He was paid a basic monthly salary of $8,500, working 26 days a month from 8 am to 6 pm daily.  He was entitled to an overtime payment of $32 per hour.  He claimed he worked, on the average, 2 hours’ overtime daily and an average of 50 hours per month.  On that basis, he is now claiming an average monthly earnings while he was employed before the accident at $10,000 per month.

4.  On 22 November 2004, he was working with fellow workers moving two large water tanks at the warehouse when he slipped and fell, landing on his buttocks and knocking his left leg on the water tank.  In spite of the pain on his back and left leg, he returned to work on the next day and continued to work until 1 December 2004, during which time he was given lighter work and lighter duties. 

5.  The pain became unbearable on 2 December 2004 and he was admitted into the Yan Chai Hospital for two days.  Thereafter, he continued to be followed up at the Yan Chai Hospital Out-Patient Clinic and received physiotherapy treatments at the Yan Chai Hospital.

6.  The Hospital Authority record showed the applicant had attended the Accident and Emergency Department of Yan Chai Hospital at 18:22 hours on 26 November 2004, i.e. four days after the accident.  The cause of his complaint at the time was low back pain and left sciatica, the pain radiating to the left leg.  He was given medication and referred to the Physiotherapy Department for treatment.

7.  The documents disclosed that the applicant had a complaint previous to the accident.  The medical records at the Yan Chai Hospital and the Princess Margaret Hospital showed that the applicant had complained of low back pain since 5 March 1999.  Page 105 of the trial bundle is a record of the doctor at the Out-Patient Department of Princess Margaret Hospital recording the history of the applicant’s low back pain that had began 3 years before the report date in 1999, that he had an episode of 10 days’ pain and had received treatments at the time.

8.  The background history explained the Yan Chai Hospital record on 26 November 2004 and 2 December 2004 that the applicant’s complaint of low back pain and sciatica was a reoccurrence of an old complaint.  The Accident and Emergency Department’s record on those two days did not record the applicant having informed the doctors at Yan Chai Hospital that he had an accident on 22 November 2004.

9.  The medical report of Dr Lee Po-chin, specialist in orthopaedics and traumatology, obtained for the purposes of this assessment revealed that the applicant’s medical records, including the earlier pre-accident records, were made available to Dr Lee before he made his report although the MRI report done in 2006 was not made available to Dr Lee at the time of his examination in early 2009. 

10.  Dr Lee reported that the applicant complained of pain in the left buttocks radiating to the left calf.  The pain was said to be constant and increased after sitting for 15 to 20 minutes, that he could not lift weights over 10 kilos due to increase of pain and he had experienced difficulty in walking up and down stairs. 

11.  Dr Lee however observed that the applicant could walk without aid with a normal gait and his single leg stance of either leg was stable.  Further, he could walk on top-toe but his heel walking was unstable.  Dr Lee further reported that he could squat without support and there was no deformity in his back and lower limbs, although tenderness at his right lower left limb and left paraspinal muscles were found.  There was no muscle spasm found and no muscle wasting discovered.

12.  In Dr Lee’s opinion, the accident on 22 November 2004 had probably caused exasperating and aggravation of his back symptoms.  He found the residual low back pain consistent after a sprain injury.  He also found that the applicant’s condition to be permanent at the examination in April this year which was 4½ years after the accident.  However, Dr Lee also found his condition should improve and benefit from stretching and strengthening exercises of his back.

13.  Dr Lee assessed the applicant to suffer from 6% impairment of the whole person due to back pain after the back injury on the degenerated lumbar spine.  He further assessed the loss of earning capacity to be 8%.  

14.  In Dr Lee’s opinion, the applicant may have difficulty returning to full capacity work as a delivery worker but Dr Lee is of the opinion that he should be able to return to work as a security guard or a shopkeeper.  He further commented that the normal sick leave for a patient of his condition is between 9 to 12 months’ sick leave and for slow responders, it may take longer.

Findings

15.  The applicant was assessed by the Medical Assessment Board on 14 August 2008.  The certificate of assessment was issued on 28 August 2008 and the findings of injury was back injury resulting in prolapsed intervertebral disc L5/S1, pain and left lower limb numbness. 

16.  The period of sick leave confirmed by the Medical Assessment Board was from 2 December 2004 to 20 November 2006.  The loss of earning capacity permanently caused by the injury was assessed at 7% by the Medical Assessment Board.  The applicant has lodged an appeal on the Medical Assessment Board’s assessment of his loss of earning capacity on the compensation for a permanent partial incapacity under Section 9 of the ordinance. 

17.  The applicant’s legal representative, Miss Courbet, submitted that the applicant should be assessed on the basis of his actual post-accident earning capacity rather than on the basis of the 7 or 8% assessed by the MAB or Dr Lee.  She relied on the Hong Kong Paper Mills Limited v Chan Kin Wu case, reported in 1981, HKLR 556.  The reason being that the First Schedule of the Ordinance did not specify the type of injury suffered by the applicant. 

18.  Section 9(1)(b) of the ordinance provides as follows:-

“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:

provided that:-

(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.”

19.  I am grateful to Miss Courbet’s list of authorities on this subject.  In the Privy Council case of Lau Ho Wah v Yau Chi Biu [1986] HKLR 1091, the Privy Council held that:-

(1) “The concept of earning capacity was not limited to the present nor was it to be measured by some immediate and possibly quite fortuitous achievement. It was concerned with a continuing state, with the potential of an individual and very much with the future (See page 1063 F to G); and

(2) The assessed effect of a non-schedule injury must reflect the fixed statutory conclusions provided for in the listed scheduled injuries. That would not be possible unless the degree of bodily impairment could be compared with the various bodily losses listed in the Schedule. Nor would it be possible if the issue were to be decided in advance (as in the present case) on the sole basis of wages actually being earned at the time of the hearing. While evidence of post-accident earnings might be taken into account as having some greater or lesser relevance when estimating the permanent significance of a non-schedule injury, such evidence could not by itself exclude the wider implications of the lost bodily function when related to the Schedule injuries (See page 1064 H to J and 1065 A).”

20.  The Privy Council referred to Section 9(1) the ordinance’s requirement that the assessment of loss of earning capacity in the case of non-schedule injury shall be made “in conformity with the scale of the percentages specified in the First Schedule”. 

21.  The Privy Council’s judgment was decided after the Hong Kong Paper Mills case but before the amendment to the Hong Kong Paper Mills formula by the Court of Appeal in the Lui Kwong Yan v Shui Hing Decoration Works and another case [1993] HKLR 168. 

22.  Adopting the basis of assessment enunciated by the Privy Council in Lau Ho Wah that it is concerned with a continuing state with the potential of an individual and with the future.  In the present case, I do not agree with Miss Courbet that the applicant’s Section 9 compensation should be calculated based on the applicant’s present wage of $4,000 per month.

23.  The evidence produced by the applicant clearly showed he had been working as a security guard since October 2006.  His current security guard licence exhibited in the bundle showed that it will expire in the year 2011.  He has also told the court that he intended to look for suitable employment which would pay him a higher wage such as a security guard, for the obvious reason that every individual would prefer a better paid job. 

24.  His last job before the current provisional store job was working as a forklift driver at Cheung Lok Company for which he was paid $280 per day.  He admitted he received $7,280 per month working 26 days a month. 

25.  The applicant’s wages when he worked for the defendant was at a basic wage of $8,500, working from 8 to 6, 10 hours a day, with overtime payment of $32 per hour.  He claimed he worked 50 hours overtime per month on the average.  He was making therefore an income of about $10,000 on the average per month.

26.  There was no evidence of the applicant receiving the $10,000 per month on the average before the accident.  There was only the oral evidence of the applicant of his pre-accident salary.  As the respondent did not supply any information therein and did not file any acknowledge of service, there was no evidence from the respondent on the applicant’s pre-accident income other than the evidence of the applicant.

27.  I have considered the applicant’s condition after the injury.  On the basis that his injury could not be regarded or categorised as serious and it was assessed by the MAB that the loss of earning capacity would be 7% while the doctor who examined him in April this year gave an assessment of 8% loss of earning capacity, while his loss or impairment of the whole person was 6%, it is up to the court to consider whether the MAB assessment should be replaced.

28.  Unlike the Hong Kong Paper Mills case, on the Lau Ho Wah case, I do not think it is reasonable to use the Hong Kong Paper Mills formula. 

29.  In Dr Lee’s opinion, the applicant’s condition should improve and his condition would benefit with exercise of his back.  Even though the applicant may not be able to return to his former employment, he had in fact been able to obtain employment as a forklift driver in 2008 for a number of months and he had taken a series of employment as a security guard since the year 2006.  It is obvious he has the capacity to earn more than the $4,000 per month he is earning now. 

30.  I am therefore not prepare to use the Hong Kong Paper Mills formula in the Section 9 compensation.  I would also confirm the assessment of the MAB which had the advantage of considering the MRI report that Dr Lee did not see.  On that basis, the applicant’s appeal against the MAB’s loss of earning capacity assessment is rejected.

Section 9

31.  My assessment of the applicant’s Section 9 compensation is: $10,000 x 7% x 72 months = $50,400.

Section 10 sick leave pay

32.  As the applicant admitted to have returned to work in October 2006, working as a security guard for Golden Fame Shipping Limited until March 2007 at $7,000 per month, the sick leave pay should be adjusted accordingly. 

33.  It is unfortunate that the applicant failed to mention or give the exact date of his commencement of employment with Golden Fame Shipping Limited, this has left the court in an embarrassing position to have to speculate on his exact date of return to work in order to arrive at a correct figure. 

34.  For the purpose of calculation, I will assume he commenced work 1½ month before the expiry of the sick leave on 20 November 2006.  I will therefore deduct 45 days from Miss Courbet’s calculation and the calculation is: $10,000 / 30 x 673 x 4/5 and the figure comes to $179,467. 

Section 10A medical expenses

35.  In spite of the lack of supporting documents from the applicant, I am prepared to accept the $2,000 that he asked for under this head.

Summary

The total comes to $231,867.

37.  Interests would be payable from the date of the accident to the date of judgment at half judgment rate and thereafter at judgment rate.

Costs

38.  Costs to the applicant to be taxed if not agreed.  The applicant’s own costs to be taxed in accordance with Legal Aid Regulations.