LEE TIN HO ALEX v. PARTNERS-EXPRESS LOGISTICS (HK) LTD

DCEC 715/2023

[2025] HKDC 1660

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 715 OF 2023

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JUDGMENT

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A.  INTRODUCTION

1.  On 25 July 2022, whilst in the employment of the Respondent as a lorry driver, a heavy carton box fell onto the Applicant’s left fourth toe when the Applicant was unloading at the rear platform of the lorry (the “Accident”). The Applicant sustained left foot injury and left fourth toe distal phalanx fracture as a result.

2.  This is the Applicant’s application for compensation under section 9 of the Employees’ Compensation Ordinance (Cap 282) (“ECO”).

3.  The Respondent did not take part in these proceedings. On 26 April 2024, the Court entered interlocutory judgment against the Respondent.

4.  Before the Court is the assessment of compensation and damages in these proceedings.

B.  WITNESS AND EVIDENCE

5.  The Applicant has filed one witness statement for himself. He also adduced the medical report of Dr Chan Wai Fu (“Dr Chan”) dated 18 June 2025 (the “Expert Report”) without calling Dr Chan.

C.  THE APPLICANT’S INJURIES

6.  On 6 April 2023, the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) certified that the Applicant’s loss of earning capacity permanently caused by the injury was 0%. On review, the Board revised such percentage to 0.1% on 10 July 2023.

7.  The Board also certified various periods of the Applicant’s absence from duty which were necessary as a result of the injury, totaling 61 days.

8.  The Applicant lodged an appeal against the Board’s assessment under section 18 of ECO. Section 18(3) of ECO empowers the Court to confirm, reverse, vary or substitute the Board’s assessment with its own assessment. The burden is on the Applicant to demonstrate that the Board’s assessment is incorrect.

9.  It is established that whilst medical experts are usually called to give an opinion on the effect of the injuries on the injured, the Court should form its own view by reference to all the evidence in arriving at its own conclusion on the applicant’s permanent loss of earning capacity: Yu Chun Kit v Wong Wing Yau (The Bankrupt) formerly trading as Viewbond Cargo Service Company & anor (unrep, DCEC 1787/2015, 5 June 2017), paragraph 29.

D.  THE APPLICATION

10.  I accept the Applicant’s evidence that his monthly earning at the time of the Accident was $23,000/month.

11.  At the time of the Accident, the Applicant was aged 51. According to section 7(1)(b) of ECO, the amount of compensation under section 9 of ECO should be assessed with reference to 72 months’ earnings.

12.  According to the Expert Report, the Applicant suffered left foot injury with fracture of left fourth toe distal phalanx as a result of the Accident.

13.  Dr Chan examined the Applicant on 25 February 2025. The Applicant complained of intermittent left foot pain and swelling and limited walking tolerance. Physical examination revealed tenderness and swelling over the Applicant’s left foot, especially the fourth toe. The range of movement of his left fourth toe was limited. Dr Chan opined that the Applicant’s residual disability of the left foot was compatible with the injury sustained in the Accident.

14.  Whilst the Applicant could resume his pre-injury job as a lorry driver, Dr Chan opined that there would be reduced work efficiency and walking tolerance as a result of the residual pain, swelling and stiffness in his left foot.

15.  Based on Dr Chan’s assessment, the Applicant sustains 2% whole person impairment and loss of earning capacity as a result of the Accident.

16.  In forming my own view on the Applicant’s permanent loss of earning capacity, I accept Dr Chan’s opinion on the injuries and residual symptoms suffered by the Applicant. I accept that as a result of such residual symptoms, the Applicant would experience reduced capacity and efficiency in his pre-injury job.

17.  All in all, I accept Dr Chan’s assessment of a permanent loss of earning capacity of 2%.

18.  By reason of the above, I consider that the proper compensation under section 9 of ECO is $23,000/month x 72 months x 2% = $33,120.

19.  Whilst the Applicant has received $30,667 from the Respondent as his salary during his sick leave period, pursuant to section 10(4) of ECO, such amount should not be deducted from any amount of compensation payable under section 9: see Kai Wai Ming v Hong Kong Airport Services Limited [2011] 3 HKLRD 497, paragraph 32.

E.  CONCLUSION

20.  By reason of the above, the amount of compensation payable to the Applicant under section 9 of ECO is $33,120.

21.  The Applicant is entitled to interest at half judgment rate from the date of the Accident (ie 25 July 2022) to the date of this judgment and thereafter at judgment rate until payment in full.

22.  I make a costs order nisi that the Respondent do pay the costs of the Applicant (including all costs reserved, if any), to be taxed if not agreed.