TSOI CHUN WAI v. LUEN FAT AIR CONDITION (HOLDING) TRADING & ENGINEERING CO LTD

DCEC 1006/2020

[2022] HKDC 231

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1006 OF 2020

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JUDGMENT

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A. Introduction

1.  The applicant commenced these proceedings to recover compensation against the respondent pursuant to the Employees’ Compensation Ordinance Cap 282 (“Ordinance”) for the injury he sustained on 9 September 2019.  There is no dispute between the parties that, at the material time, the applicant was employed as an air conditioner technician by the respondent.

2.  Three issues arise for determination. 

3.  First, on the issue of liability, the respondent disputes the applicant’s factual account as to what transpired on 9 September 2019 (“Issue 1”).

4.  Secondly, there is a disagreement between the parties on the applicant’s monthly earnings for the purpose of calculating his entitlements (were liability to be established).  This issue is to be resolved primarily by a proper application of section 11 of the Ordinance (“Issue 2”).

5.  Thirdly, the parties disagree on the applicant’s loss of earning capacity.  On 27 January 2021, the Employees’ Compensation (Ordinary Assessment) Board (“Board”) assessed the applicant to be suffering from a 2% loss of earning capacity permanently caused by his injuries (“Assessment”). On 29 January 2021, the applicant appealed against the Assessment by the Board.  For such purpose, the parties obtained leave to adduce orthopaedic expert evidence from Dr Lam Chi Keung Johnson (“Dr Lam”) engaged by the applicant and Dr Tsoi Chi Wah Danny (“Dr Tsoi”) engaged by the respondent (“Issue 3”). 

6.  At the trial, the applicant and the respondent were represented respectively by Ms Debora Poon and Ms Melinda Chiang, both of counsel.

B. Issue 1: What transpired on 9 September 2019?

7.  The applicant’s case, at set out at §3(3) of the Application dated 4 June 2020, is that on the material day, he was installing air conditioners with two colleagues at Ground Floor, On Shun Building, Chik Cheun Street, Tai Wai, New Territories (“Location”).  During the process of lifting up one converter (weighing in excess of 50 kg) to a required height, the applicant sprained his right elbow (“Accident”).

8.  In the respondent’s Answer dated 30 September 2020, whilst admitting that the applicant was tasked to install air conditioners at the Location, the respondent otherwise does not admit Application §3(3).

9.  The applicant and the respondent each called one factual witness, respectively the applicant and Mr Yip Wai Fung (“Mr Yip”).  Mr Yip is an operations director (營運總監) of the respondent.

10.  The applicant gave evidence as to what transpired on 9 September 2021 as follows:-

(1)  the applicant was instructed by the respondent to install four split air conditioners at the Location with two other colleagues, a Mr Chung (鍾學勤先生) and a Mr Wong (黃澤君先生) and the converters of the air conditioners were to be installed on the external wall at around the first floor of the building;

(2)  as no working platform was available, the applicant and Mr Chung had to stand at an elevated position and use cables (飛機帶) (“Cable”) to pull up the converters (with Mr Wong assisting from the ground level) in order to place them on the metal frames already installed;

(3)  when the applicant and Mr Chung were lifting the third converter, the lifting process was obstructed by a protruding metal frame;

(4)  in order to get round the obstructing metal frame, the applicant had to lower the converter by releasing the Cable slightly but at the same time had to guard himself against letting go of the Cable such that the converter would fall from height onto the ground;

(5)  in that process, the applicant sprained his right elbow;

(6)  the remaining tasks at the Location were then completed primarily by Mr Chung;

(7)  upon completion of the tasks at the Location, the applicant attended the Accident and Emergency Department of Prince of Wales Hospital.

11.  Mr Yip’s statement, consistent with the respondent’s Answer, does not deal with the Accident at all.  It was only in his viva voce evidence that Mr Yip suggested for the first time that he harboured doubts as to what transpired on the date of the Accident.

12.  I believe Issue 1 can be dealt with shortly, as Ms Chiang accepted that there was no contemporaneous complaint by the respondent against the genuineness of the Accident and did not resist the issue of liability with any enthusiasm in closing.  The only point taken by Ms Chiang is that there is an inconsistency between the applicant’s case as set out in the Application and his evidence.

13.  As I understand Ms Chiang, the inconsistency identified is that whilst the Application stated that the applicant sustained injury from lifting up a converter, the application’s evidence is that his injury was sustained in the process of releasing the Cable.

14.  I do not regard Ms Chiang’s forensic challenge is of substance.  It is quite plain that the applicant’s case is that he sustained an injury in the course of lifting up a converted and that is precisely the effect of the applicant’s evidence.

15.  I accept the applicant’s evidence and find as a fact that the Accident happened and it happened in the manner as described by the applicant. Liability for compensation under the Ordinance is therefore established against the respondent.

C. Issue 2: What were the applicant’s monthly earnings for the purpose of calculating his entitlements?

16.  The applicant first joined the respondent in 2007 and left the respondent’s employ in 2008.  He rejoined the respondent in November 2017.  It is common ground between the parties that commencing from 1 February 2019 onwards, the applicant was remunerated on a day-rate basis at HK$1,300 per day.

17.  Despite an initial disagreement, Ms Chiang accepted in closing that the applicant’s earnings were as follows:-

Period	Earnings (HK$)
September 2018	24,380
October 2018	26,500
November 2018	20,385
December 2018	15,289
January 2019	7,852
February 2019	19,181
March 2019	7,800
April 2019	14,300
May 2019	24,700
June 2019	11,700
July 2019	29,900
August 2019	28,600
September 2019 (Date of Accident on 9 September 2019)	5,460

18.  Ms Poon submitted that the applicant’s monthly earnings for the purpose of calculating his entitlements under the Ordinance is HK$28,600, being those of August 2019, the month immediately preceding the date of the Accident.  Ms Chiang disagreed.  She contended that the appropriate figure is the average of the wages earned by the applicant from September 2018 to August 2019, being HK$19,215.58.

19.  The difference between the parties is on the application of section 11 of the Ordinance.

20.  Ms Poon relied on section 11(1), which provides as follows:-

“Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings –

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

21.  On the other hand, Ms Chiang contended that section 11(2) is applicable.  That section provides:-

“Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

22.  Ms Chiang argued that reliance may be derived from Or Wing Ming v Ho Bing Chi t/a Tin Kei Decoration Engineering Co [2008] 4 HKLRD 337. Headnote (3) states:-

“For employees who received wages on a daily or weekly basis, there would, by reason of the fluctuations in their amount of work and hence number of working days per month, not possibly be any basis on which their monthly earnings could be calculated. Section 11(2) was specifically designed to overcome this difficulty…”

23.  Ms Chiang reasoned that as the applicant was remunerated on a daily basis, that attracted the application of section 11(2).

24.  I do not agree with Ms Chiang.

25.  First, as submitted by Ms Poon, it is doubtful whether Or Wing Ming is applicable to the present case. 

26.  In Or Wing Ming, the applicant had only worked for the employer for 20 days before the accident.  It was in that context that Yuen JA said at §26 as follows:-

“26(1) …. The amount of work that Employer A assigns to an employee in a particular month may also differ from that in the preceding or following month. When a worker who is paid a daily wage has been employed for less than one month, there is simply no basis for ascertaining the amount of work that his employer assigns to him, and sheer speculation on this will lead to unfairness. In such a case, there is simply no basis for calculating the employee’s earnings within one month.

26(2)    … Section 11(2) is designed to overcome the very difficulty stated above.  As in the present case, the method of calculation under section 11(1) does not apply as the Applicant had been employed by the Respondent for less than one month…”

27.  In the present case, however, the applicant had worked for the respondent for a period sufficient to attract the application of section 11(1).

28.  Secondly, the argument pursued by the respondent is in any event not one premised on section 11(2).  As noted above, the figure contended for by the respondent is one arrived at by averaging the earnings of the applicant himself for the 12 months preceding the Accident.  In contrast, under section 11(2), where it is impracticable to compute the rate of remuneration of an employee at the date of the accident, regard may be had to the earnings of the stated comparators (namely a person of similar earning capacity in the same grade at the same work by the same employer or a person a similar earning capacity in the same grade employed in the same class of employment and in the same district).

29.  Indeed, the figure adopted by the respondent patently falls within the rubric of section 11(1)(b), namely one which is computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer.

30.  I therefore agree with Ms Poon’s submission that it is appropriate to apply section 11(1), and as section 11(1)(a) (ie the earnings for the month immediately preceding the date of the Accident) yields a calculation which is more favourable to the Applicant, the figure of HK$28,600 should be adopted for the purpose of calculating the Applicant’s entitlements.

D. Issue 3: What was the Applicant’s loss of earning capacity?

31.  The applicant was born on 12 February 1979 and was aged 40 at the time of the Accident.  He completed education up to Primary 6 level and is right-hand dominant.

32.  On 22 July 2021, the applicant was jointly assessed by Dr Lam and Dr Tsoi.  Based on the evidence reviewed and the findings at the joint examination, the experts agree that the applicant suffered a soft tissue injury to his right elbow resulting in bone edema and chondral injury over distal medial humeral condyle of elbow.

33.  The experts further agree that:-

(1)  radiologically, there were mild degenerative changes in the applicant’s right elbow that were likely pre-existing before the Accident;

(2)  the treatment prescribed and received was appropriate and surgery was not required for the applicant’s injury;

(3)  at the time of the joint assessment, the applicant’s right elbow had reached maximum medical improvement.

34.  The experts however were not able to agree on the extent of impairment and loss of earning capacity.  The difference between the experts is not significant.  Whilst Dr Lam assessed the applicant’s impairment and loss of earning capacity at respectively 3% and 4%, Dr Tsoi’s assessments are 3% and 3%.

35.  That there is no a significant difference between the experts’ assessments is not surprising, as the findings by the experts underpinning their assessments were similar. 

(1)  Dr Lam is of the view that considering the applicant’s residual pain and impairment, with more self exercises to strengthen the right elbow and a gradual return-to-work programme for adaptation and to improve endurance, the applicant may be able to gradually return to his pre-accident job with mild reduction in work capacity in that there would be reduced lifting capacity and endurance.

(2)  Dr Tsoi opines that the residual soreness and stiffness are mild and do not affect the applicant’s right elbow function.  The applicant may experience mild soreness after performing extremely strenuous manual duties involving his right elbow but is otherwise not precluded from returning to his pre-injury job.

36.  Both experts had made certain apportionments due to the applicant’s pre-existing degenerative changes.  However, both counsel agreed that, on the authority of LKK Trans Limited v Wong Hoi Chung [2006] 1 HKLRD 980, such apportionment ought to be disregarded.

37.  Unlike an assessment in a common law claim, expert opinion on the percentage of loss of earning capacity is helpful and admissible in employees’ compensation proceedings: Chan Yuet Keung v Harmony (International) Knitting Factory Limited [2010] 5 HKLRD 599 where Bharwaney J explained at §§52-62 the differences between (1) assessment of damages for loss of earnings and earnings capacity at common law and (2) assessment of compensation under the Ordinance.

38.  The difference between the experts is, as acknowledged by Ms Poon, “minimal”.  There is little to choose between the experts and both counsel have fairly not advanced any real criticisms on the cogency of the relevant opinion of the other side’s expert.  I find that 3% is the appropriate assessment of the applicant’s loss of earning capacity.

E. The applicant’s entitlements under the Ordinance

39.  Save the three issues identified above, there was a measure of agreement between the parties on the other inputs in respect of the applicant’s entitlements under the Ordinance.  The assessments below are based on my findings on Issues 1 to 3 and the agreements between the parties.

40.  The applicant’s entitlement under section 9 of the Ordinance is [HK$28,600 x 72 x 3%] = HK$61,776.

41.  The applicant’s entitlement under section 10 of the Ordinance is [HK$28,600 x 307/30 x 4/5] = HK$234,138.67.

42.  The applicant’s entitlement under section 10A of the Ordinance is agreed at HK$3,130.

43.  Both counsel agreed that a sum of HK$121,680, being (predominantly) periodic payments paid by the respondent to the applicant, should be deducted from the assessment.

F. Conclusion

44.  The applicant’s entitlement is therefore assessed at [HK$61,766 + 234,138.67 + 3,130 – 121,680] = HK$177,354.67.

45.  I also award interest on the compensation assessed at interest at half judgment rate from the date of the Accident until the date of this judgment and thereafter at judgment rate until payment.

46.  I further make a costs order nisi that the costs of these proceedings be paid by the respondent to the applicant to be taxed if not agreed.  Should there be no application to vary the costs order nisi within 14 days from the date of this judgment, it shall become absolute.

47.  I thank both counsel for their assistance.