Ho Kin Shing v. Wong Fung Kwai and Others

DCEC 493/2012

[2021] HKDC 1032

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 493 OF 2012

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Coram: His Honour Judge Harold Leong in Court

Date of Hearing: 21 May 2021

Date of Judgment: 26 August 2021

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ASSESSMENT OF COMPENSATION

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1.This is an assessment hearing of the Applicant’s claim for employee’s compensation regarding a fall from height accident during work on 26 July 2011.

2.There was a trial on liability and the claim against the 1^st Respondent has been dismissed.

3.The Applicant and the 3^rd Respondent (“the Board”) have reached an agreement in March 2021 as follows:

a.  The Board agrees to pay compensation at HK$1,110,000.00 (inclusive of interest), on top of HK$10,000.00 the Applicant already received as advance payment;

b.  The Applicant do obtain a judgment against the 2^nd Respondent, and take reasonable steps to enforce the judgment against the 2^nd Respondent;

c.  There be no order as to costs between the Applicant and the Board; and

d.  The Boards agrees that the Applicant should be entitled to costs against the 2^nd Respondent; but in respect of work done for prosecuting the Applicant’s claim against both the 1^st Respondent and the 2^nd Respondent, the costs recoverable shall exclude that for prosecuting the claim against the 1^st Respondent.

4.The legal principle under such a situation has been clarified by the Court of Final Appeal in Wo Chun Wah v Employees Compensation Assistance Fund Board (2019) 22 HKCFAR 495:

“Under s.28(1) of the Employees Compensation Assistance Ordinance (Cap. 365) (“ECAO”), the Board is expressly authorised to settle a potential claim for relief payment under ECAO s.16…”

“The binding effect of the settlement agreement between an applicant and the Board is not affected by any subsequent judgment obtained…”

Monthly salary

5.At the time of the Accident, the Applicant was a welder with a daily wage of HK$800 which was, according to the Applicant, the standard wage in the industry, and he worked 26 days a month for the last 12 months (paragraphs 2.3 and 2.7 of the Witness Statement of Ho Kin Shing, Trial Bundle pages 89, 91 and 92).

6.The court would therefore accept that the Applicant’s monthly earnings should be HK$(800 x 26) = HK$20,800. I would see this as a generous figure given that the Applicant was a freelance welder and I would not contemplate any claim for an increase in income.

Permanent partial loss of capacity

7.The Applicant fell from a height of 20 feet and had loss consciousness. He was sent to the A&E department of Norther District Hospital. X-ray investigation revealed fracture of L2 vertebrate and CT investigation showed bowel perforation and haemoperitoneum.

8.An operation was performed on 27 July 2011 for resection of 40cm of small bowel and anastomosis. On 1 August 2011, he required an emergency spinal operation for decompression of spinal cord and posterior spinal fusion. He was later transferred to Tai Po Hospital for rehabilitation and underwent physiotherapy and occupational therapy.

9.Unfortunately, the Applicant also suffered from multiple episodes of strokes from around June 2012 which were, as opined by both neurology experts, unrelated to the accident but rather caused by the Applicant’s pre-existing conditions.

10.Other than those medical conditions, the Applicant still suffered from lower back pain.

11.The assessment for the loss of earning capacity stated in Form 9 was 5.1%, with 5% for orthopaedics injuries and 0.1% for surgical injuries. It also certified the sick leave from 26 July 2011 to 25 July 2014 (excepts a few days in between) (pages 267-268 of the Trial Bundle).

12.In the Joint Orthopaedics Expert Report, Dr. Fu Wai Kee and Dr. Ko Put Shui Peter assessed the loss of earning capacity caused by orthopaedic injuries at 15% and 5% respectively.

13.In the Joint Surgical Expert Report, both Dr. Tom Tan-To Cheung and Dr. Chung Kam Man Thomas agreed with the assessment on Form 9, that is, 0.1% for surgical injuries.

14.In the Joint Psychiatric Expert Report, Dr. Chow Lok Yee opined that the loss of earning capacity due to his psychiatric condition caused by the accident is about 3%, while Dr. Benjamin Lai opined 1-3%.

15.Taking into account of all the experts’ opinion, the combined loss of earning capacity should range from 6.1% to 18.1%. I would simply take the middle figure of 12.1%.

16.I would also accept the sick leave as 36 months.

Compensation under section 9

17.The Applicant was 51 at the time of the accident. The multiplier should be 72.

18.The compensation under this head should be HK$20,800 x 72 x 12.1% = HK$181,209.60

Compensation under section 10

19.The compensation under this head should be HK$20,800 x 4/5 x 36 = HK$599,040.00

Compensation under section 10A

20.I would accept the compensation for HK$5,000.00 as medical expenses.

21.The total compensation should be HK$(181,209.60 + 599,040.00 + 5,000) = HK$785,249.60 plus interest.

Order

22.I will make the following order:

a.  The employees’ compensation is assessed at HK$785,249.60 plus interest at half judgment rate from the date of the accident to the date of the judgment, and thereafter at judgment rate until payment;

b.  There be no order as to costs between the Applicant and the Board; and

c.  The Applicant is entitled to costs against the 2^nd Respondent but in respect of work done, if any, for prosecuting the Applicant’s claim against both the 1^st and 2^nd Respondent, the costs recoverable shall exclude that for prosecuting the claim against the 1^st Respondent.

Miss Pui Yi Wong, of Messrs K.Y. Woo & Co., for the applicant

The 2^nd respondent was not represented and did not appear

Mr. Alfred Chung Ping Cheng, instructed by Messrs Cheng, Yeung & Co., for the 3^rd respondent