CHAN CHEUK KI FELIX v. RAINBOW & DIAMOND TRANSPORT LTD

DCEC 328/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 328 OF 2008

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IN THE MATTER OF AN APPLICATION

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ASSESSMENT OF COMPENSATION

1.  On 14 March 2007, 23-year-old Chan (the Applicant) was injured in a traffic accident during the course of his work as driver and deliveryman for R&D (the Respondent).  Chan filed his claim against R&D for compensation under the Employees’ Compensation Ordinance, Cap.282.  On 28 November 2008, interlocutory judgment on liability for compensation to be assessed was entered against R&D.

2.  R&D has been and still is absent today.  On the basis of the affirmation of service filed on behalf of Chan, I am satisfied that previous orders, documents and notice of today’s hearing have been served.  Chan was allowed to proceed with proving his claim.  Chan gave evidence.

INJURIES

3.  As a result of the accident, Chan suffered serious injuries including multiple ribs and right arm fracture as well as kidney injury that necessitated the actual removal of his right kidney.

4.  For the resultant right arm scar, right forearm scar, weakness and finger deformity, nephrectomy as well as residual pain over the thorax and abdominal wall, the Employees’ Compensation Assessment Board issued its certificate on 13 February 2008 assessing Chan’s loss of earning capacity to be 21.5%.  By the present application, Chan also lodged an appeal against the Board’s assessment pursuant to section 18 of the Ordinance.

THE SECTION 18 APPEAL

5.  It is submitted on Chan’s behalf that the loss of earning capacity for the calculation of section 9 compensation should be 35%, being the summation of the percentage degrees assessed by the 2 medical experts respectively.  Chan relies on the expert opinion of Professor K N Lai, expert in nephrology, and Dr Wong See Hoi, orthopaedic expert.  Their reports were dated 5 August 2008 and 27 October 2008 respectively.

6.  Professor Lai examined Chan on 9 July 2008.  Professor Lai opined that the nephrological condition does not affect Chan’s ability to drive, to take care of himself, to play light sports or to carry out social and daily activities.  His ability as a labourer or to deliver heavy goods will be affected by his impaired arm power.

7.  However he is of the view that after the loss of one kidney, Chan’s remaining kidney became hypertrophic.  This will pose a potentially negative effect on his health subsequently.  Based on the increased probability of developing chronic kidney disease with the remaining kidney, Professor Lai assessed the 25% loss of earning capacity.

8.  Dr Wong examined Chan on 1 September 2008.  He believed the right forearm fractures had healed satisfactorily.  The residual right wrist pain could be explained by the post-fracture status and on and off soft tissue inflammation around the fracture region.  It was noted that the implant was palpable over the right wrist.  Surgery to remove the implant is optional because the same does not cause pain.  The extension lag of the middle finger in dorsiflexed wrist is due to the tendon adhesion.  Dr Wong expected Chan to have on and off right forearm pain, especially when lifting and carrying heavy objects.  Chan would also have marked decrease efficiency in performing fine manipulative work.

9.  Dr Wong opined that Chan is able to resume to her pre-accident work as a lorry driver and delivery worker, but with reduced efficiency and capacity.  Chan is able to handle the driving though the driving endurance may be affected by right forearm pain aggravated by prolonged exertion.  Chan will have limitation and lower tolerance in performing heavy lifting and carrying.  Dr Wong advised that Chan should take rest often, say 10-15 minutes every hour and do some stretching exercises to relieve the pain and discomfort.  In terms of percentage, Dr Wong assessed the loss of earning capacity in such condition to be 10%.

10.  Since May 2008, Chan was re-engaged as a driver and deliveryman of clothes.  But he claims that that his working capacity has become worse than before.  Due to his kidney condition, he has to find and to visit toilet whenever he reached a destination during work.  In court, Chan said that he left such work at the end of last month due to pain in his arm and chest.  He felt difficulty in lifting 20 lb of clothes.

11.  Chan is able to resume his pre-accident work but his tolerance of prolonged driving and his ability to handle heavy weight are in doubt.  This, according to Professor Lai, Dr Wong and even Chan, is due to Chan’s arm and chest pain.  As mentioned above, this, according to Dr Wong, accounted for 10% loss of earning capacity.  I accept that.  Upon that and comparing with the 21.5% assessed by the board, one may say there is still 11.5% to be accounted for by the kidney condition.  Was it not reasonable?

12.  Miss Wong for Chan drew my attention to item 45 of Schedule 1 of the Ordinance.  There the loss of kidney is a scheduled injury.  Loss of one kidney if the other kidney is normal amounts to 15%.  If the other kidney is abnormal, the loss ranges from 65% to 90%.  In the present case, Professor Lai’s opinion is clearly that Chan’s remaining kidney is abnormal.  Taking all these into account, I accept that 11.5% loss cannot reflect the reality and that Professor Lai’s assessment of 25% loss is reasonable.

13.  I allow the section 18 appeal and adopt 35% for the purpose of the assessment.

SECTION 9 COMPENSATION

14.  Chan started to work for the business of R&D in March 2006 when it was still a sole proprietorship.  R&D was incorporated in December 2006.  Daily working hours started at 10 am and he left work at 10 pm.  On average he worked 26 days a month.  At the time of the accident, his daily wage was HK$320.  There was HK$300 telephone fee allowance.  On the 10^th of each month, he received his monthly income in cash.  The average amount was HK$8,620.  I accept his evidence.

15.  Chan was 23 years old at the time of the accident.  The statutory multiplier for calculating section 9 compensation is 96 months.  The compensation would be HK$8,620 x 96 months x 35% = HK$289,632.

SECTION 10 COMPENSATION

16.  Chan was granted sick leave during the period between 14 March and 1 November 2007 (or 233 days).  This was certified by the Assessment Board and confirmed by Professor Lai and Dr Wong to be reasonable.  The compensation under section 10 should be HK$8,620 x 233/30 x 4/5 = HK$53,558.93.  Chan said that he has received HK$3,000 from R&D since the accident.  Credit should be given to that amount.

SECTION 10A COMPENSATION

17.  The breakdown of the medical expenses claimed is explained in Chan’s statement and is evidenced by receipts.  Among them were 3 treatments at the ophthalmology department of the Tuen Mun Hospital in 2007.  Chan stated that he felt his eyesight was impaired as a result of the accident.  However nothing of that sort was hinted in any medical reports.  Chan cannot really explain in court.  I am not satisfied that there is basis for attributing the alleged visual problem to the accident.

18.  In the circumstances, the expenses on such treatment in the sum of HK$200 should be taken out of the calculation.  Subject to that, I accept Chan’s evidence.  The amount allowed is HK$5,870.

SUMMARY

19.  The compensation should be:

CONCLUSION

20.  Compensation is assessed in the sum of HK$346,060.93.  Interest runs at half judgment rate from the date of accident until today and thereafter at the judgment rate until full payment.   R&D has already been ordered to pay costs of this action up to the date of judgment.  I order that R&D shall also pay costs of this action since then including the costs of these assessment proceedings.  Costs shall be taxed, if not agreed.  Chan's own costs shall be taxed in accordance with the legal aid regulations.