LIU CHEUK FAI v. 吳遠強

DCEC 1361/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1361 OF 2012

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JUDGMENT
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INTRODUCTION

1. This is about the applicant’s claim against the respondent for employees’ compensation under sections 9 (loss of earning capacity), 10 (sick leave) and 10A (medical expenses) of the Employees’ Compensation Ordinance, Cap 282.  The applicant also appeals against the assessment of the Employees’ Compensation (Ordinary Assessment) Board in relation to the percentage loss of his earning capacity[1].

2. The applicant’s case is that the respondent was his employer and that he sustained injuries as a result of a traffic accident on 18 January 2012 when he was driving his employer’s truck[2] delivering goods for a customer.  On the other hand, the respondent’s pleaded case is one of bare denial in that the applicant was not his employee and that he did not know even know the applicant. 

THE ISSUES

3. There are only two live witnesses in this case, namely the applicant and the respondent.  There is also an expert medical report[3] of Dr Miu, a specialist in Orthopaedics & Traumatology, from the applicant.  The report was adduced as evidence without Dr Miu being called.  The respondent did not call any medical evidence. 

4. As far as liability is concerned, there is nothing to suggest that the applicant worked as an independent contractor or was a self-employed person at the material time.  Also, there can be no serious dispute that the applicant met with a traffic accident whilst he was driving a truck on the day in question and sustained personal injuries as a result.  The major live issue, as can be seen in later discussion, is whether the applicant was an employee of the respondent or someone else.  There is also an issue as to whether the accident happened in the course of the applicant’s employment.  All these hinge on the applicant’s credibility, bearing in mind that the burden of proof is on him on balance of probabilities.

5. Subject to the issue of liability, as regards quantum the parties have no dispute that the applicant had been granted sick leave for a total of 694 days[4] and had incurred medical expenses to the total amount of $8,351[5].  The issue for the court to decide is whether Dr Miu’s expert opinion should be accorded with such weight so as to justify a finding that the percentage loss of the applicant’s earning capacity actually exceeds 2%[6] and if so, whether it is as high as 6% as Dr Miu suggests. 

LIABILITY 

Evidence of the applicant

6. The applicant’s account is that he worked as a truck driver cum delivery worker in Hong Kong for the Respondent who, with the assistance of his wife Li Siu Fung（李小鳳）[7], operated Kong Lung International Transportation Company（港龍國際運輸公司）（“Kong Long”）, a mainland company delivering goods for customers from the Mainland to Hong Kong.  Kong Lung has an office in Shenzhen and does not have any business registration here.

7. Prior to his working for the respondent, the applicant had known Tsang Pang Ho (“Tsang”) and Yiu Wai Kit (“Yiu”), both of them worked for the Respondent in Hong Kong.  In about late June 2010, the applicant commenced his work as a relief driver of Tsang.  On the second day of the applicant’s work, the respondent came to a street side vehicle parking space in Fanling where the respondent’s trucks were parked.  In presence of the drivers and the respondent’s wife, Yiu addressed the respondent as the boss.  A few days later, the respondent called and asked the applicant to continue working for him on a long term basis and on the same conditions.  The applicant accepted the offer. 

8. Afterwards, as per the respondent’s direction Yiu and the applicant went to hire a 5.5 ton truck for use in the applicant’s work.  About 2 months later, the respondent purchased a second hand 5.5 tonnes truck, JC 7580 (registered under the name Li Fung Mui).  From then onwards, the applicant drove that truck to deliver goods for the respondent’s customers until he met with the accident. 

9. The respondent employed in Hong Kong 4 drivers (including Yiu, Tsang, Au Wai Liang and the applicant) to drive small trucks and another two persons (surnamed Fung and Cheung) to drive cross-border 24 tonnes trucks.  Apart from the drivers, there were also two delivery workers.  The applicant’s wages were calculated on a daily basis initially at $500 a day, which was subsequently raised to $550.  Besides, the applicant would be paid a manual delivery allowance（上樓費）every time customers asked that goods be moved indoors from road side.  The applicant’s wages and allowances were paid in cash by the respondent. 

10. There were people working in the office of Kong Lung in Shenzhen and they were brothers and sisters of the respondent’s wife or her relatives.  The applicant met those people when he went to Shenzhen to have meal gatherings with them. In particular, he and Yiu were acquainted with Li Siu Mui（李小梅） who was the younger sister of the respondent’s wife.  According to the applicant, everyone in Kong Lung, including those in the Shenzhen office, took instruction from the respondent. 

11. Regarding the accident, the applicant said that the staff of Kong Lung had a year-end meal gathering in Shenzhen on 16 January 2012, after which the company closed for the Chinese New Year until the 15^th day of the first month of the lunar calendar.  After the meal, the applicant and Yiu spent the night in Shenzhen.  On the following day, the respondent came to them, asked the applicant to deliver a consignment of goods[8] to an address on Conduit Road and promised to pay him a full day’s wage (of $550) for just that one delivery.  Although the applicant was on holiday, he agreed to take up the order.  This was because his relationship with the respondent was fine and the pay was good. 

12. In the small hours of 18 January 2012, the respondent drove the applicant and Yiu back to Hong Kong in his black Toyota 7-seater (EB  3988).  The applicant remembered the registration number of the 7-seater as he had very often seen the respondent driving it.  Later that day, when the applicant was on the way driving the goods to the customer, he met with a traffic accident on Fanling Highway and rammed into the rear of a heavy truck.  He was taken to the Prince of Wales Hospital.  After he had received treatment at the Emergency and Accident Department of the hospital, he saw that the respondent and Yiu had arrived.  As the applicant had yet to have opportunity telling the respondent about the accident, he gathered that the latter got the information from the Police.  The respondent and Yiu asked the applicant about his injuries.

13. The truck JC 7580 was badly damaged by the accident and was towed to the Police Vehicle Pound where it stayed for a period of time.  Afterwards, it was sold as scrap.  Other trucks were subsequently acquired by the respondent.

Evidence of the respondent

14. According to the respondent, he was not the boss of Kong Long but was just one of its employees.  He worked in the Shenzhen office and was the supervisor of delivery orders（跟單主管）. Kong Long actually belonged to his wife’s elder brother Li Ming Chung（李明聰）. The trucks of Kong Long were registered in his and his wife’s name for the sake of convenience only, as Li Ming Chung was not a Hong Kong citizen.  The place of Kong Long in Lung Kee Car Depot（龍記車塲）in Sheung Shui was also rented in the respondent’s name because it was closed to his home.  As regards his personal savings account held with Nanyang Commercial Bank (“NCB”), he gave different versions in court.  His final version was that all the monies in that bank account belonged to Li Ming Chung and that the latter had also asked him to purchase shares in Hong Kong with monies from that bank account. 

15. The applicant was not his employee.  He barely knew the applicant, although he may have seen the latter on a few occasions at meal gatherings of the company.  The respondent had not asked the applicant to deliver goods in Hong Kong on the day of the accident.  In fact, the whole company was on holiday for the Chinese New Year and there were no goods to be delivered in Hong Kong at that time.  He drove the 7-seater EB 3988 to work and he was given the use of it by Li Ming Chung.  However, he did not drive the applicant and Yiu back to Hong Kong on 18 January 2012.

16. The respondent agreed that after the accident he and Yiu had gone to the hospital to visit the applicant.  However, he was only informed by Li Ming Chung about the accident and was asked by the latter to pay the applicant a visit and to express sympathy.  He left the hospital without talking to the applicant, as the applicant was sleeping or was not conscious when he and Yiu were there.

EVALUATION

17. Having observed the applicant and the respondent giving evidence in court and having considered the inherent probability or improbability of their respective accounts, for the reasons to be given below I find that the applicant is in general a credible and reliable witness.  On the other hand, for the reasons to be given below I find that the respondent is a most unimpressive witness who was not telling the truth.  I prefer the evidence of the applicant to that of the respondent. 

The applicant’s evidence

18. I find that the applicant’s account that the respondent was his employer is supported by objective evidence including the following:-

(i) the trucks of Kong Lung in Hong Kong were all registered in the name of the respondent and his wife;

(ii) the place of Kong Lung in Lung Kee Car Depot was rented in the respondent’s name; and

(iii) the personal savings account of the respondent was used for depositing transportation fees belonging to Kong Lung and payments for goods belonging to Kong Lung’s customers as well as paying expenses of the respondent.

19. Even though the company was at the time closed for the Chinese New Year, it is inherently probable that the applicant was, as he said, delivering goods of a customer of Kong Lung when the accident occurred.  It would not have been difficult for the respondent to find out the otherwise.  Furthermore, the truck was badly damaged and was subsequently sold as scrap, resulting in substantial losses. If the applicant was not doing Kong Lung’s business at the time but was on a frolic of his own and had taken the truck without authority, one would expect certain actions to be taken against him for the unauthorized act.  However, none of these had happened and none of these was suggested to the applicant in cross-examination.

20. Although the applicant’s oral evidence in court contained much more details than his witness statements, his oral evidence did not go beyond the general framework of his witness statements.  When assessing the applicant’s credibility and reliability as a witness, I have not ignored the fact that there are some discrepancies between his oral evidence in court and what he said in his witness statements which he adopted as his evidence.  In particular:-

(i) the applicant said in court that he forgot where he and Yiu spent the night in Shenzhen after the year end meal gathering on 16 January 2012.  In his statement, however, he said that he and Yiu lodged at the place of Li Siu Mui; and

(ii) the applicant said in court that on 17 January 2012 he received a call in Shenzhen from the customer who requested him to deliver the doors to Conduit Road.  He refused the request there and then as the company had closed for the Chinese New Year. Later on the same day, the respondent went to Lung Wah District（龍華區）of Shenzhen to look for him and Yiu.  The applicant then informed the respondent of the customer’s request and asked the respondent whether or not to accede to the customer’s request.  The respondent replied that there was no problem provided that the customer was willing to pay a higher transportation fee.  Thus, the applicant informed the customer by phone in the respondent’s presence.  In his statement, however, the applicant said that the respondent went to Li Siu Mui’s home to look for him and Yiu.  The respondent instructed the applicant to take on the delivery order and Yiu to handle another order. 

21. When the applicant was cross-examined on the above discrepancies, as regards (i) the applicant explained that he had forgotten where he and Yiu spent the night after the meal gathering as both he and Yiu had consumed alcohol.  He said that he was wrong in his statement that he and Yiu spent on the night at the home of Li Siu Mui.  As regards (ii), the applicant said that Li Siu Mui lived in Lung Wah District.  He remembered it wrongly in his witness statement that it was the respondent who received the call from the customer.  However, he maintained that Yiu was with him.  He said that it was decided that Yiu and him should each take up one order during the holiday period.  He took up the order for 18 January, as Yiu had taken up another order for 20 January.

22. When assessing the applicant’s explanations above, I have taken into account the fact that the applicant was recounting events which happened almost 3 years ago.  In my view, the aforesaid discrepancies are not material and do not affect my general assessment of the applicant that he is a credible and reliable witness. 

23. I have also considered that the fact that in the Notice of Accident dated 23 February 2012[9] filed by the applicant to the Labour Department, the applicant put in Part B his employer as Kong Lung and the contact person as the respondent.  At Question 5 of the Notice, the applicant stated that his employer was Kong Lung/Ng Yuen Keung（港龍際運輸公司/吳遠強）.  In my assessment, this is not inconsistent with the applicant’s evidence in court. 

24. Having observed the applicant’s demeanour in giving evidence and the inherent probability of his evidence, I accept his evidence that the respondent was his employer and that he was delivering the goods on the respondent’s instruction when he met with the traffic accident on 18 January 2012. 

The respondent’s evidence

25. On the other hand, I consider the respondent’s evidence as inherently improbable.  Firstly, there are important matters which should be within the respondent’s knowledge which he has failed to mention in his witness statement, giving the impression that he was trying to downplay his role in and knowledge of Kong Lung as much as possible:-

(i) Although he said that he was only an employee of Kong Lung, he did not mention who was its boss; 

(ii) he did not mention that the trucks of Kong Lung in Hong Kong were all registered under his and his wife’s name; 

(iii) he did not mention that Kong Lung’s place inside Lung Kee Car Depot was rented in his name; 

(iv) he did not mention that his personal savings account was used for the purpose of Kong Lung.  In fact, he did not disclose any bank accounts until he was ordered by the court to do so[10];

(v) he did not even mention that he had gone to the hospital with Yiu to visit the Applicant after the accident;  and

(vi) he said that Kong Lung had not employed anyone in Hong Kong[11]. However, he has known Yiu and he accepted in court that Yiu is still serving as a driver in Kong Lung. 

26. Secondly, there are other signs that the respondent had not been forthcoming as a witness.  For example, when he was asked whether the people who handled delivery orders of customers in the Shenzhen office, namely Li Ming Chung, Li Ming Tim, Li Ming Wai, Li Siu Mui, Li Ching Mui and Li Wai Ching, were his relatives, he answered in the negative.  It was only when he was asked further whether any of them were related to his wife that he admitted that all of the above were her relatives.  Also, it was found out in cross-examination that the respondent had failed to disclose that apart from the NCB account, he also had another bank account which he used to repay the mortgage of his Home Ownership Flat in which he was residing.  The court order was that the respondent had to disclose “all bank passbooks/statements” of all his bank accounts.  The respondent had failed to comply with the court order.

27. Thirdly, it begs belief that the respondent did not even know the applicant during the relevant period of time.  The respondent’s explanation was that he only worked in the Shenzhen office, that his work hours were between about 5 pm and 2 am and therefore when the Hong Kong truck drivers were working, he and his wife would be sleeping at home.  However, the following shows that his explanation is improbable:-

(i) he said that Li Ming Chung had similar work hours as his.  Presumably, the latter would also be sleeping during the time when the drivers were working;

(ii) he accepted that Li Ming Chung and other people who worked in the Shenzhen office were not Hong Kong citizens and therefore could not come to Hong Kong freely without proper applications;

(iii) only the respondent and his wife have Hong Kong Identity Cards and they lived in Hong Kong not far away from Lung Kee Car Depot; and

(iv) as between him and his wife, the respondent had more experience on trucks as he had been a truck driver and a tyre repairer. 

In view of the above, the respondent would be the most (if not the only) suitable candidate in the whole company to handle matters relating to recruitment of drivers and maintenance and repairs of trucks in Hong Kong.  Besides, his bank account had been used for the deposit of transportation fees and payments for goods which the drivers had collected.  In all the circumstances, it is most improbable that he had not known the applicant who had worked for Kong Lung for over a year.

28. Fourthly, if the respondent and the applicant did not know each other, then it would be difficult to explain why the applicant appears to know quite a lot of things about the respondent.  For examples, the applicant knew that the respondent’s wife has two names, Li Fung Mui and Li Siu Fung, that the respondent has a son, that the applicant drove EB  3988, that Kong Lung’s place in Lung Kee Car Deport was rented in the respondent’s name, that Li Ming Chung and Li Ming Tim（李明添）are the respondent’s brothers-in-law and that Li Siu Mui, the younger sister of the respondent’s wife, lived in Lung Wah District of Shenzhen. 

29. Fifthly, as regards the hospital visit, the respondent was unable to explain why Li Ming Chung would have been aware of the accident before he did, given the fact that JC 7580 was registered in the name of the respondent’ wife, that Kong Lung did not have business registration in Hong Kong and that there was nothing inside the truck which connected Li Ming Chung to it.  It is more probable that the respondent got to know about the accident through his wife. It is not probable that the respondent would have left the hospital without talking to the applicant, had the respondent been specifically asked to visit the applicant to express sympathy. It is more probable that the respondent went to see the applicant in the hospital because it was he who had asked the applicant to deliver the goods. 

30. Sixthly, as JC 7580 was registered in the name of the respondent’s wife, after the accident she would have been contacted by the police and the insurance company.  The respondent’s evidence that he was not aware of those matters is surprising to say the least. 

31. Seventhly, the respondent was unable to maintain a consistent version as regards the money in his NCB savings account, which was only disclosed after a court order for specific discovery:-

(i) The respondent admitted that the numerous deposits were payments for goods and transportation fees.  However, the bank passbook shows that there were only a few cash withdrawals (all of them in round figures) including $50,000, $50,000 and $100,000 in February 2011[12] and $80,000 in September 2011[13].  The respondent said that those withdrawals were repayments to Kong Lung.  However, the amounts withdrawn did not match the amounts deposited.  Also, there were occasions when there were no withdrawals for months.  Therefore, the pattern of withdrawals did not sit well with the respondent’s assertion that the deposits consists of payments for goods which Kong Lung had to return to customers. 

(ii) On the other hands, there were regular autopay withdrawals for expenses such as HKT (internet fees)[14], Sunday (mobile phone fees), PCCW mobile (mobile phone fees), Chartis insurance (car insurance) as well as repayments to Hitachi Capi (hire purchase for trucks).   

(iii) More importantly, there were several occasions where large amounts were withdrawn to purchase shares, eg, $955,965.29 on 19.10.2011 and $888,147.10 on 26.10.2011[15]. The respondent in cross-examination at first said that part of those purchase monies came from his and his wife’s savings.  He said that Li Ming Chung knew that they were buying shares.  When he was asked whether Li Ming Chung had given him general permission to use Kong Lung’s money to buy shares, he disagreed.  However, on the following day when the cross-examination resumed, the respondent changed his evidence 180 degrees and said that the evidence he gave the day before was false in that all the money in the savings account actually belonged to Li Ming Chung and that the shares were purchased on Li Ming Chung’s behalf using the respondent’s shares account.  The respondent said further that he had allowed Li Ming Chung to use his savings account since 2007.  At that time, the account only had a small balance of about $1,000 odd. After the account was lent to Li Ming Chung, all the deposits were in fact Li Ming Chung’s money. 

(iv) As regards the purchase of shares with money in the account, the respondent said further that he had given the password of his account to Li Ming Chung so that Li Ming Chung could purchase shares directly.  However, the respondent was unable to explain why Li Ming Chung chose to place orders for purchase through him rather than doing it directly. 

(v) The respondent explained that he told lies in court because Li Ming Chung had asked him not to disclose the real ownership of the money.  The respondent further explained that Li Ming Chung was applying for a one-way permit to Hong Kong and he (Li) was afraid that the money would be frozen if the true ownership of the money was known.  I find this explanation of the respondent unconvincing.  Had what the respondent said been true, there would have been plenty of opportunities for Li Ming Chung to cause the money to be withdrawn and returned to him.  There would have been no need for Li Ming Chung to ask his brother in law to lie in court. 

In short, I find that the respondent was telling lies to cover earlier lies in his evidence about his NCB account. 

32. The above list of unsatisfactory aspects of the respondent’s evidence can go on for a few pages more.  However, what I have said so far is more than sufficient to demonstrate the implausibility which pervades the whole of his evidence.

33. I have not ignored that the respondent had filed an employment contract[16] and some attendance records[17] with a view to support his account that he was an employee of Kong Lung.  The applicant does not accept that those documents are genuine[18].  There are also some documents appearing to be copies of mainland official documents[19] which purport to show that Li Ming Chung was the operator（經營者）and responsible person（負責人）of Kong Lung.  As regards those documents, I have the following observation to make:-

(i) the employment contract stated that the respondent was to be paid a “basic salary plus commission”（底薪加拥金）without specifying what the basic salary was and how the commission was to be calculated.  Despite the fact that he was allegedly to be a party to the employment contract, the respondent was unable to explain as to why it was drafted in this way.   

(ii) The attendance records are time cards.  However, as the people who worked in the Shenzhen office (including the respondent) are either family members or close relatives, the respondent was unable to explain satisfactorily why it was necessary for them to punch in and out. 

(iii) As regards the documents which purport to be copies of official documents of the Mainland, as Li Ming Chung did not come and testify, I am unable to attach any weight to them.

34. Having considered the above documents, I am of the view that the documents do not alter my assessment of the respondent that he is not a credible witness and that his evidence is wholly unreliable.  I reject the respondent’s evidence that he was not the employer of the applicant and that he had not asked the applicant to make the delivery which related to the traffic accident.

Findings

35. On balance of probabilities, I find as a fact that the applicant was at all material times an employee of the respondent.  This is based on the applicant’s evidence, which I have accepted, that he was recruited by the respondent, that he took instruction from the respondent regarding his work duties and arrangement, that he received wages from the respondent, that he used the tool (the truck) provided by the respondent and was generally subject to the respondent’s administrative control: see Poon Chau Nam v Yim Siu Cheung trading as Yat Cheung Air-conditioning & Electric Co[20].

36. I also find as a fact that at the time the traffic accident, the applicant was on the way delivering goods for a customer of the respondent.  He did that because he was asked by the respondent to do so.  Although the traffic accident occurred at a time when Kong Lung had closed for the Chinese New Year, I find as a fact that the traffic accident arose out of and was in the course of the applicant’s employment with the respondent.  In this regard, the presumptions contained in s 5(4) of the Employees’ Compensation Ordinance are pertinent.  See also Hong Kong Civil Procedure 2015, Vol 2, §Q1/5/22.  However, even without relying on the presumptions, based on the evidence of the applicant I would still be so satisfied.

37. I also find as a fact, and there is no real dispute about it, that the applicant suffered personal injuries as a result of the traffic accident. 

38. Based on the above, I find in the applicant’s favour on the issue of liability. 

QUANTUM

Loss of earning capacity

The relevant legal principles

39. An appeal under s18 of the Employees’ Compensation Ordinance is not in fact an appeal proper.  This is because the Assessment Board does not give any reasons for its assessment and the court hearing the appeal has to form its own view by reference to all the evidence, and in particular the medical evidence, in arriving at its conclusion as to the permanent loss of earning capacity. 

40. In Chan Kit v Sam Wo Industrial Manufactory[21], Hunter JA, who gave the judgment of the Court of Appeal, said[22]:-

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

41. Similarly, Deputy District Judge Bharwaney (as his lordship then was), also said in Chu Chin Yiau v Ray On Construction Co Ltd[23]:-

“In fact, whether an appeal is lodged pursuant to s 18(1)or application made for compensation under s 9 or, indeed, both proceduresresorted to at the same time, it is clear that a court approaching the matterhas to start afresh, relying not only on the certificate of the Board but alsoon any other evidence, especially medical evidence, adduced before it toassess the loss of earning capacity permanently caused by the injurysuffered in an accident at work (Chan Kit v Sum Wo Industrial Manufactory[l989] 2 HKLR 230 at 233 and Yip Fong Ming v Joint-Effort EngineeringCo & Anor (ECC 128/88, 17 May 1989 p 3, unreported)).”

42. In considering the medical evidence, I remind myself of what Roger VP said in Tang Shau Tsan v Wealthy Construction Co Ltd[24]:-

“An expert witness can give evidence as to the nature of the plaintiff's injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.”

43. Besides, medical experts are not allowed to address on the factual question of the likelihood or otherwise of employers in the employment market employing persons with particular injuries and/or disabilities.  The issue of employability of the claimant by employers in the job market depends not only on clinical opinion as to his physical or mental capability in undertaking a particular job given its nature or scope of duties, but also on a host of other factual matters (eg the motivation, willingness and/or efforts of the claimant in finding work) that are fully within the purview of the trial judge.  To put the questions as posed to the experts is to risk letting them usurp the function of the trial judge as fact-finder.  The court should be alert to ensure that judges and not experts are to decide cases: see Yip Koon Man v Yuen Long Merchants Association Secondary School[25].

44. Furthermore, in testing the conclusion reached by the Assessment Board against the total evidence available, the court should also have regard to s 9(1A) of the Ordinance which requires it to take into the special circumstances of the injured employee.  Because if there are, the true loss must be ascertained and proportionally applied to a “permanent total incapacity calculation based on s 7: see Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd[26]and also Lau Man Leung v Yiu Wing Construction Co Ltd[27].

The evidence

45. The applicant is now aged 36.  He was almost 33 at the time of the accident.  He is educated up to Form 5.  Before he worked as a truck driver, he had been an office clerk and then a salesman in a fashion shop. 

46. The traffic accident caused the applicant to suffer facial laceration and severe soft tissue injury of the cervical spine.  The facial laceration has healed.  The sprain injury, however, has resulted in persistent neck pain and stiffness which affect his working tolerance. 

47. According to the applicant, he is now working as a delivery worker assisting a driver（跟車送貨）and he will only act as a relief driver occasionally.  He gives two reasons for that. First, he will suffer right shoulder and neck pain after driving for a prolonged period and secondly, he is yet to regain confidence in driving. Furthermore, the applicant says he is unable to resume his previous job as a driver of a 5.5 tonnes truck.  It is because in which case he would be required to work on his own without anyone assisting him to move goods.  That is something which he cannot now manage to do because of his pain.  If he follows a 24 tonnes truck, then the truck driver would help him moving goods.  As a result, he can now earn only $500 a day as a delivery worker, rather than $600 a day as a truck driver cum delivery worker.

48. According to the report of the physiotherapist of the Prince of Wales Hospital dated 9 May 2012[28], after about two and a half months of treatment there was no significant weakness and tactile sensation deficit of the applicant’s upper limbs.  The range of movement of his neck, right shoulder and elbow was good.  On palpation, his right shoulder girdle and right elbow were still tender. 

49. According to the consultant of the department of Orthopaedic & Traumatology dated 20 July 2012[29] who last seen the applicant on 10 May 2012, the applicant still complained of persistent neck pain with right upper limb numbness. 

50. According to the Occupational Therapy Report of North District Hospital dated 25 June 2014[30], the applicant was able to cope with his previous job as a delivery worker with assistance in material handling tasks that exceed his abilities.

51. In Form 7, the applicant’s loss of earning capacity was assessed to be 3%, which was reduced to 2% in Form 9 on review. 

52. Dr Miu is of the opinion that the applicant has reached maximal medical improvement from the accident.  The prognosis would be fair only.  The applicant would require frequent symptomatic treatment (in the form of medication and physiotherapy) on need–to basis.  The applicant’s daily activities are not affected significantly but he would still have difficulty to perform moderate strenuous work or keep his head and neck in a stationary position for a prolonged period of time.  Dr Miu assesses that the permanent impairment of the applicant’s whole person for the neck injury is 4% and the ulnar nerve injury is 1%.  The total impairment of the whole person is therefore 5%.  Purely for reference purpose, Dr Miu put the loss of the applicant’s earning capacity as 6%. 

53. The problem I have with Dr Miu’s evidence is that the bulk of his report is a summary of what he was told by the applicant, the history of the injury, the treatment the applicant has received and the medical reports of the treating doctors and therapists.  Dr Miu does not explain how he comes to the view that the applicant’s loss of earning capacity is 6%.  Further, Dr Miu has not provided any reasons for differing from the assessments by the Employees’ Compensation Board given in Form 7 and Form 9.  Lastly, Dr Miu does not comment on the applicant’s capability in engaging in jobs other than driving and delivering goods.

54. Having considered all the medical evidence as well as the evidence of the applicant, I am satisfied that the applicant is not able to return to his previous job as a small truck driver working on his own.  He will feel pain after prolonged driving.  As a result, he is unable to earn as much as he did. I am also satisfied that his loss of earning capacity is in excess of 2% as stated in Form 9.  However, I am not satisfied that the percentage is as high as 6% as suggested by Dr Miu.  In my view, he is capable of doing jobs other than driving.  Doing the best I can, I find that the applicant’s loss of earning capacity is 4%.  To this extent, the applicant’s appeal is allowed.

Earnings

55. According to the applicant, prior to the accident his month income was about $20,900, which consisted of wages of $550 per day for 28 days and an average manual delivery allowance（上樓費）of $5,500.  This part of the applicant’s evidence has not been challenged by the respondent.

56. In the absence of evidence to the contrary, I find that the monthly income of the applicant for the purpose of employees’ compensation is $20,900.

Compensation

57. As aforesaid, there are no disputes about the sick leave and the medical expenses. 

58. The applicant is under 40 years of age.  Thus, the compensation of the applicant is calculated as follows:-

Section 9	$20,900 x 96 months x 4%	$80,256
Section 10	$20,900 x 4/5 x 694 days/30	$386,789
Section 10A		$8,351
		________
	Total	$475,396

CONCLUSION

59. The respondent is to pay the applicant a total of $475,396 as compensation under the Employees’ Compensation Ordinance pursuant to ss 9, 10 & 10A.

60. The above compensation carries an interest at 4% per annum from the date of accident (18 January 2012) to the date of this judgment and thereafter at the judgment rate until full payment.

61. I make an order nisi that the respondent is to pay the applicant’s costs, to be taxed if not agreed, with certificate for counsel.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.