Cheng Kin Yuen v. 馮興

DCEC 2208/2016

[2018] HKDC 935

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2208 OF 2016

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JUDGMENT

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1.The applicant met with an accident on 20 October 2014 (“the accident”) in the course of his employment with the respondent. The applicant claims against the respondent for compensation under ss 9, 10 and 10A of the Employees’ Compensation Ordinance (“ECO”). Interlocutory judgment on liability was entered against the respondent on 6 April 2018. This is the assessment of the quantum of the compensation.

2.Having read the evidence adduced by the applicant, I am satisfied that all the documents concerning this trial have been duly served on the respondent.

The facts

3.The applicant has given evidence at this trial.  I am of the view that the applicant is a truthful and reliable witness.  I accept his evidence.

4.The applicant has produced a medical report dated 6 February 2018 (“the Report”) prepared by Dr Chan Wai Fu (“Dr Chan”).  Pursuant to the order made by this court on 6 April 2018, the Report is deemed to be evidence in this trial.

5.Based upon the applicant’s evidence, the Report and the documents produced by the applicant, I set out the facts as found by me in the paragraphs below.

6.The applicant was born on 14 September 1955.  He started to work for the respondent in October 2013.  The accident occurred on 20 October 2014.  He was 59 years old at the time of the accident.

7.On 20 October 2014, at around 3:10 pm, the applicant was assigned by the respondent to lift bunches of metal sheets in a place in Yuen Long.  After moving 3 or 4 bunches, the applicant was instructed by the respondent to move another bunch of metal sheets.  In the course of delivering the said metal sheets, the applicant was hit by the said metal sheets and sustained multiple injuries.

8.As a result of the accident, the applicant was sent by the respondent to Pok Oi Hospital (“PO Hospital”) on the date of the accident.  Medical examination revealed that there was tenderness, swelling and abrasion at the applicant’s left chest.  Chest X-ray showed fractured left ribs.  The applicant attended follow-ups on 28 October 2014, 25 November 2014, and 23 December 2014.  On the last follow up on 23 December 2014, the applicant’s fractured ribs were healed radiologically.

9.The applicant has sought treatments from a registered Chinese medicine practitioner after the accident up to 22 November 2014.

10.Due to the persistent pain over the applicant’s ribs, the respondent took the applicant to the Shenzhen People’s Hospital (“SZ Hospital”) for treatment on 7 February 2015.

11.On 12 July 2016, the applicant attended the assessment by the Employees’ Compensation (Ordinary Assessment) Board of the Labour Department.  The Certificate of Assessment (Form 7) (“the Form 7 Certificate”) was issued on 26 July 2016.  As per the Form 7 Certificate, the period of absence from duty as a result of the injury is from 28 October 2014 to 11 January 2015.  The loss of earning capacity permanently caused by the injury was 1%.

12.On 5 October 2016, the applicant lodged an appeal against the Form 7 Certificate.

13.On 16 January 2018, the applicant was examined by Dr Chan.  Dr Chan has expressed the following opinion in the Report (which is accepted by this court):-

(1)   The diagnosis of the applicant’s left chest injury with fractured 8^th and 9^th ribs is compatible and consistent with the mechanism of injury.  The accident should be the sole cause.  There is no pre-existing pathology of the chest.

(2)   The treatments received by the applicant was up to standard and appropriate for his clinical treatment.

(3)   The applicant’s residual disability of left chest pain is due to the aftermath of localized soft tissue and bony trauma at the injury.  However, the left shoulder stiffness may be part and partial due to his previous left shoulder injury and surgery.

(4)   The applicant may require some symptomatic treatment in future for his left chest injury, for example non-steriodal anti-inflammatory drug and simple analgesics.  No operation is recommended for the applicant to remedy his left chest injury.  The prognosis of the applicant is good with expected mild residual left chest pain upon manual working.  His left ribs pain should be of a gradual reducing severity though minor degree of residual pain is likely to persist.  The enjoyment of life and ability to cope socially will be mildly affected by the injury.  The applicant should carry out regular exercises, for example some weight lift training, strolling and walking, in order to improve his physical condition.

(5)   The applicant should be able to resume his pre-injury duty as general worker with slightly reduced his lifting and walking capacity.  He will have reduced efficiency such as pain over his left chest when he has to lift heavy objects.

(6)   The loss of earning capacity permanently caused by the injury should be 3%.

14.In the Report, Dr Chan said that the X-ray examination conducted on 16 January 2018 showed that the applicant’s fractured left 8^th and 9^th ribs were healed.  However, in a medical report written by a Dr Li Ka Li (“Dr Li”) of PO Hospital dated 8 November 2015, Dr Li said that when the applicant was sent to the Accident & Emergency Department of PO Hospital on 20 October 2014, the X-ray examination done at that time revealed that the applicant had fractures at left 7^th and 8^th ribs.  I have considered these discrepancies and come to the conclusion that as a result of the accident, the applicant suffered injuries at his left 8^th and 9^th ribs, and not at his left 7^th and 8^th ribs.

(1)   In the consultation note written by a Dr Lin Samuel of PO Hospital during the consultation on 28 October 2014, Dr Lin recorded that X-ray showed fractures at the applicant’s left 9^th rib.

(2)   In a medical report prepared by the SZ Hospital dated 7 February 2015, it is recorded that the X-ray examination done in the SZ Hospital showed that the applicant had suffered fractures at his left 8^th and 9^th ribs.

(3)   The X-ray examination conducted during the examination by Dr Chan on 16 January 2018 also showed that the applicant had fractured left 8^th and 9^th ribs.

(4)   The applicant said in his evidence that after the accident, he had not suffered any chest injury.

(5)   Taking all the aforesaid into account, I am of the view that as a result of the accident, the applicant’s left 8^th and 9^th ribs were fractured.  Dr Li might well have mistakenly stated in his report that the fractures were at the applicant’s left 7^th and 8^th ribs.

15.Dr Chan is of the opinion that based upon the mode of injury and the expected recovery, the applicant may have more residual left chest pain than usual, and he gives the assessment that the loss of earning capacity permanently is 3%.  I accept this assessment.

16.The applicant’s monthly earnings on average during the 12 months prior to the accident was HK$18,000.

17.The applicant was granted sick leave from 28 October 2014 to 11 January 2015.  The length of the sick leave period is 76 days.  By the operation of the presumption in ECO s 10(2), in the absence of any evidence showing the contrary, this should be treated as the length of the period during which the applicant was temporarily incapable to work.

18.As a result of the accident, the applicant has incurred some medical expenses, the total of which is HK$8,745.

19.In his evidence, the applicant has confirmed that he has received HK$60,100 from the respondent and his wife after the accident.  I am of this view that this should be taken as the advanced payment from the respondent to the applicant.

Quantum of the compensation payable

20.The compensation payable under ECO s 9 should be HK$18,000 x 48 x 3% = HK$25,920.

21.The compensation under ECO s 10 should be HK$18,000 x 76/30 x 4/5 = HK$36,480.

22.The compensation under ECO s 10A should be HK$8,745.

23.The total of the aforesaid is HK$25,920 + HK$36,480 + HK$8,745 = HK$71,145. An advanced payment of HK$60,100 has been given by the respondent to the applicant.  Accordingly, the quantum of the compensation now payable by the respondent to the applicant should be HK$71,145 - HK$60,100 = HK$11,045.

Disposition

24.I order that the respondent do pay the compensation as stipulated in paragraph 23 above to the applicant.  There be interest on this sum at half of the judgment rate from the date of the accident to the date of this judgment, and at the judgment rate until full payment.

25.I have heard submissions on costs.  In my view, costs should follow the event.  There be a costs order that costs of these proceedings (including all costs reserved) be to the applicant, to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

26.I also direct that upon the respondent’s request (if any), this judgment be interpreted to the respondent by a court interpreter in the District Court at a mutually convenient time.

27.Lastly, it remains for me to thank the applicant’s solicitors for the assistance rendered to this court.

Ms Sarah Young of Keith Lam Lau & Chan, assigned by the Director of Legal Aid, for the applicant

The respondent was not represented and did not appear