RIASAT ALI v. KENWA INDUSTRIAL (H.K.) LTD

DCEC 809/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 809 OF 2012

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JUDGMENT

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1. This the applicant’s application under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (the “Ordinance”) for compensation of injuries caused to him by an accident that arose out of and in the course of his employment on 17 May 2010. The applicant obtained judgment on liability against the respondent on 11 October 2013. By the same order, costs on liability have been awarded to the applicant. The present hearing is only concerned with assessment of the appropriate compensation to be awarded to the applicant. The respondent is absent at today’s hearing and hence the applicant’s evidence is not challenged.

Background

2. The applicant was employed as a general labourer by the respondent.  On 17 May 2010, the applicant was instructed to work at an open area premises located at DD 120, Lot 2073, Tin Liu Village, Kau Um Road, Yuen Long, New Territories, Hong Kong.  At about 2:30 pm on the same day, the applicant operated a compressor machine to compress rubbish into a big bale.  He noticed the big bale was stuck when he tried to push the big bale out of the machine.  He therefore went to the other side of the machine to pull it out.  As he was pulling the big bale out, his left leg tripped over some rubbish and he fell.  The big bale of rubbish fell on top of the applicant’s left knee causing the applicant to sustain injuries over his left knee.

Facts relevant to assessment of compensation

3. The applicant was born on 26 November 1976 and was 33 years old at the time of the accident.

4. The applicant’s evidence is that he was employed by the respondent since May 2010 at a daily wage of $350 and was required to work 26 days per month.  His monthly wage was therefore $9,100.  Solicitor for the applicant confirms no MPF contributions were made by the applicant or the respondent on the applicant’s behalf.

5. The Form 7 issued on 25 February 2014 by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) shows intermittent sick leave being granted during 17 May 2010 to 12 August 2010.  The total sick leave period granted is 65 days.  The Board assessed the applicant’s loss of earning capacity at 0.1%.  On 25 March 2014, the applicant filed a Notice of Appeal against the assessment.

6. On 22 July 2014, the Board issued a reviewed assessment (Form 9).  However assessment of the sick leave period and the loss of earning capacity remained unchanged.  Consequently, on 12 August 2014, the applicant filed a Notice of Appeal against the review assessment.

7. For the purpose of the present proceedings, the applicant appointed Dr Chan Kin Pan (“Dr Chan”) as his orthopaedic expert and he was examined by Dr Chan on 30 September 2014.  By an order dated 12 December 2014, HH Judge CM Leung ordered that Dr Chan’s report be adduced as evidence without calling the maker thereof. 

8. In Dr Chan’s report dated 3 October 2014, Dr Chan opined the applicant suffered a 2.5% loss of earning capacity as a result of the accident.  Dr Chan opined the applicant suffered a serious contusion with open wound and there was a foreign body (small metallic debris) still in the wound.  The pain syndrome has evolved into a chronic pain syndrome due to the severity of the injury. He further opined the inadequate acute pain management, inadequate pain control and medication, insufficient physiotherapy and the lack of occupational therapy and psychotherapy caused the pain syndrome to deteriorate.  Dr Chan believes the applicant may not be fit to continue his previous job as a general labourer but could continue with his job (as at the time of the medical report) as a security guard.  He anticipates that in the event the foreign body causes a flare-up and inflammation, the applicant will have to undergo an operation to remove the metallic debris.  Dr Chan concludes that the loss of earning capacity should be assessed at 2.5% and that the sick leave period granted was reasonable.

9. Having considered Dr Chan’s report, I allow the applicant’s appeal on the assessment of the loss of earning capacity under Form 7 and 9.  I adopt 2.5% as the percentage of the loss of earning capacity suffered by the applicant as a result of the injuries he sustained in the accident.

Compensation under section 9

10. The compensation for the applicant’s permanent partial incapacity pursuant to section 9(1)(b) of the Ordinance is, therefore:-

   $9,100 x 96 x 2.5% = $21,840.00.

Compensation under section 10

11. The compensation for the applicant’s temporary loss of earning capacity pursuant to section 10 of the Ordinance is:-

  $9,100 x 65 days x 4/5 = $15,773.33.

Compensation under section 10A

12. Solicitor for the respondent argued that since Dr Chan anticipates an operation will be required in the future to remove the metallic debris from the applicant’s wound, the applicant should be entitled to claim the sum of $30,000 under section 10A (being the estimated sum for the future operation as set out in Dr Chan’s report). However on a reading of the definition at section 3 of the Ordinance, it is evident that the applicant can only claim for medical expenses that have been “incurred”. Since the sum of $30,000 has yet to be incurred, this prospective medical expense falls outside the scope of section 10A. This sum is therefore not allowed.

13. The applicant’s claim for medical expenses is $730.00 as set out in his Application. In the witness box, he sought to increase the sum to $1460.00 by claiming he paid sums of money to the Hospital Authority. However his additional claim is contrary to the Statement of Accounts shown at pages 68 – 70 of the Trial Bundle. The Statement of Accounts shows the applicant’s medical fees were subsequently waived by the Hospital Authority. Hence these additional sums are not allowed.

14. The applicant is only able to provide a medical receipt in the sum of $330. Hence I allow the applicant’s claim for medical expenses in the sum of $330.00.

Summary on quantum

15. In summary, the total compensation awarded is as follows:-

(1)	Section 9 compensation	$21,840.00
(2)	Add: section 10 compensation	$15,773.33
(3)	Add: section 10A compensation	$330.00
	Total:	$37,943.33

16. I order the respondent to pay the applicant a sum of $37,943.33, together with interest on the said sum at half judgment rate from the date of the accident (17 May 2010) until the date of this judgment and thereafter at judgment rate until payment in full.  

17. I further order that the respondent do pay the applicant’s costs of the assessment of compensation, such costs are to be taxed if not agreed.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.