Shauket Iqbal v. Wampum Engineering Co and Others

DCEC 2112/2018

[2022] HKDC 58

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 2112 OF 2018

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Before:  His Honour Judge H. Au-Yeung in Court

Date of Hearing:  12 January 2022

Date of Judgment:  12 January 2022

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JUDGMENT

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THE APPLICATION

1.This is an employees’ compensation claim arising out of an accident which happened on 30 April 2018 made pursuant to the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”).

2.It is the applicant’s case that at the material time:

(1)  he was employed by the 1^st respondent as a general worker;

(2)  the 1^st respondent was a sub-contractor of the 2^nd respondent which in turn was a sub-contractor of the 3^rd respondent, which was the principal contractor of the work undertaken by the applicant;

(3)  he was working on 2^nd Floor, 205 DHL, Kwai Chung Container Terminal 4, Hong Kong;

(4)  he was instructed by the 1^st respondent to operate a hand grinder to cut some bolts. He held the grinder’s handle by his right hand and plugged it in, not knowing that it had been switched on beforehand. Once the grinder was connected with electricity, it twisted, and the applicant lost control thereof. As a result, the blade of the grinder cut and injured his left hand.

3.The applicant therefore claims for compensation pursuant to sections 9, 10 and 10A of the Ordinance.

THE RESPONDENTS’ STANCE

4.All the respondents act in person.

5.While the 1^st and 2^nd respondents have filed their respective Answers to the applicant’s Application, the 3^rd respondent has failed to do so.

6.Pursuant to Unless Orders made on 7 May 2021 and 16 July 2021 respectively, all respondents have been debarred from adducing oral evidence at the trial.

7.In its Answer filed on 21 June 2019, the 1^st respondent stated, among other things, that this Application was objected to because Positive Engineering Company, being the principal contractor, should have been joined in this Application. At that time, Positive Engineering Company was indeed not a party herein yet. It was subsequently joined as the 3^rd respondent herein pursuant to leave granted on 10 July 2020.

8.The 2^nd respondent also did not query in its Answer filed on 17 June 2019 that the applicant was indeed injured on 30 April 2018 in the alleged manner. However, it was puzzled as to why the applicant did not stop working after the accident. It questioned whether his injury was as serious as alleged and doubted whether the work which the applicant did after the accident had worsened his condition. It further pleaded in its Answer that it had sub-contracted the work to the 1^st respondent and that it had insurance policy covering this accident.

9.Out of the 3 respondents, only the 1^st respondent had attended the trial. He told this court that he did so only for the purpose of getting to know the progress and the result of the case rather than to actively object against the applicant’s Application. Upon this court’s explanation, he understood that the main dispute which remained to be adjudicated was the extent of loss of earning capacity suffered by the applicant. However, he was not prepared to make any argument on the matter and was content with leaving the issue to be decided by the court.

10.As far as the 2^nd and 3^rd respondents are concerned, as I was satisfied that they had been served with a “Notice of Trial” dated 24 August 2021 and as a result of which they should be taken to have knowledge about this trial, the hearing today was proceeded with in their absence.

LIABILITY

11.From their respective Answers, it can be seen that the 1^st and 2^nd respondents did not really dispute that they should be liable for employees’ compensation.

12.Given:

(1)  this court’s acceptance of the applicant’s evidence that he was indeed injured while working for the 1^st respondent which had attached a salary record (“the Salary Record”) to its Answer showing that the applicant was its employee at the material time;

(2)  the 2^nd respondent’s admission in its Answer that the 1^st respondent was its sub-contractor;

(3)  the 3^rd respondent did not file any Answer at all,

I find that all three respondents should be held liable for employees’ compensation in the present Application.

SECTION 9 COMPENSATION

Medical treatment and examination

13.The applicant stated that in the accident, the blade of the grinder cut the dorsum of his left index finger. At first, he thought the injury was minor, so he continued to work after receiving some first aid treatment. However, because of his injury, he was given light duties instead.

14.He worked on the following 2 days until around 11am on 2 May 2018 when he felt that the pain had intensified. Upon the advice of his employer, he went to seek treatment at the A & E Department of Kwong Wah Hospital.

15.According to the medical report of Kwong Wah Hospital dated 31 October 2018, the applicant’s laceration wound on his left index finger was already healing when he attended for treatment on 2 May 2018. There was tenderness, swelling and yellowish discharge around the wound. X-ray showed no fracture. He was admitted to the orthopaedics ward for further management.

16.Wound exploration and repair of extensor digitorum tendon of the applicant’s left index finger was performed on 2 May 2018. According to the medical report of the Orthopaedics & Traumatology Department of Kwong Wah Hospital dated 21 October 2018, the applicant’s left index finger wound was healed with minimal left index finger stiffness.

17.The applicant was referred to the Physiotherapy Department of Kwong Wah Hospital and was first seen there on 29 May 2018. He completed 31 treatment sessions and was discharged therefrom on 18 October 2018. The range of his left hand grip was improved to nearly full range, and it was only slightly limited at his left index finger. His left and right grip power was improved to 14kg and 28kg respectively.

18.The applicant was assessed at the Occupational Therapy Department (“OTD”) of Kwong Wah Hospital on 24 May 2018. He attended a course of left hand training from 29 May 2018 to 18 October 2018. Objective assessment revealed mild improvement of the active range of motion of his left index finger. His left hand power grip strength was said to be poor in the OTD Report dated 16 April 2019.

Form 7

19.In the Form 7 dated 17 April 2019, the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed that the applicant has suffered 3% permanent loss of earning capacity. The injury was stated as “left index finger injury resulting in left index finger pain, weakness and stiffness”.

Section 18 appeal

20.By virtue of a Notice of Appeal filed on 24 April 2019, the applicant appealed against the assessment in the said Form 7 pursuant to section 18 of the Ordinance.

21.It is trite that an appeal under section 18 of the Ordinance in fact is not an appeal proper, because the Board did 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 own conclusion as to the permanent loss of earning capacity and the period of temporary total incapacity resulting from the injury. In Chan Kit v Sum Wo Industrial Manufactory[1], Hunter JA, who gave the judgment of the Court of Appeal, said:-

“… the court’s jurisdiction appears to be appellate. But one has then to remember that these Boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons. So that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded; it is plain that a Court approaching this matter has really got to start afresh.”

22.The paragraph quoted above had been referred to by the Court of Appeal in Tsang Kwong Tong v Tennille Decoration & Design Limited & Others (CACV 42/2006, unreported, 10 October 2006), in which Tang JA (as his Lordship then was) added:

“Where no reasons are given by the Board, as is usually the case, the court hearing an appeal under section 18 ought not to speculate and ‘can only judge an assessment by testing the validity of its conclusions against the total available evidence’ (Chan Kam v. Standard Chartered Bank Hong Kong Trustee Ltd., supra. at 458)” (at paragraph 47).

23.In Chu Chin Yiau v Ray On Construction Co Ltd [2], Deputy District Judge Bharwaney (as his Lordship then was), also said:

“In fact, whether an appeal is lodged pursuant to s 18(1)or application made for compensation under s 9 or, indeed, both procedures resorted to at the same time, it is clear that a court approaching the matter has to start afresh, relying not only on the certificate of the Board but also on any other evidence, especially medical evidence, adduced before it to assess the loss of earning capacity permanently caused by the injury suffered 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 Engineering Co & Anor(ECC 128/88, 17 May 1989 p 3, unreported)).”

24.With the above in mind, I now consider the evidence adduced in this claim.

Expert evidence

25.The applicant has adduced the expert report of Dr Wong Kwok Shing Patrick in support of his appeal under section 18 of the Ordinance.

26.Dr Wong expressed the following views in his report:

(1)  The applicant sustained laceration left index finger with extensor tendon cut, which is consistent with the mechanism of accident he described, namely, cut by a grinder;

(2)  Active movement of the left index finger was mildly reduced when compared to the right side. Passive movement was full but with pain;

(3)  Power testing by pinch meter and dynamometer show weakened left hand pinch and grip strength;

(4)  Measurement of the arm and forearm muscles showed no significant difference;

(5)  Updated x-ray showed mild relative osteopenia left hand carpals and metacarpals compared to the right side;

(6)  The objective physical and radiological findings were consistent with reasonably satisfactory recovery with some residue;

(7)  The applicant was unable to regain the previous strength at the time of examination probably because of his apprehension of pain during exertion. However, there was a reasonably good chance that he could regain more strength using his left hand if he could overcome the apprehension performing more strengthening exercises;

(8)  The overall prognosis for his left index finger injury should remain reasonably satisfactory. He was expected to have mild residual pain, mildly reduced movement and mild weakness using the finger in the long run, and the use of his left hand for heavy manual tasks would be mildly impaired;

(9)  No ongoing symptomatic relief treatment or surgery would be required.

27.On the above basis, Dr Wong concluded that:

“Mr. Shauket is estimated to have 3% whole person impairment for residual left index finger pain, reduced movement and weakness.

Considering he was a construction site worker performing frequent heavy manual tasks before the accident, he is estimated to have 4% LOEC as a result of the accident.”

28.I accept Dr Wong’s expert opinion.

29.As aforesaid, the 2^nd respondent queried in its Answer as to whether the applicant’s injury had been made more serious by reason of the work done after he was injured. On this matter, it is noted that Dr Wong was aware that the applicant did undertake light duty tasks on 1 May 2018 despite his injury. I am sure that Dr Wong would have taken this factor into account if he considered it appropriate to do so.

30.For the above reasons, I allow the applicant’s appeal against the Board’s assessment of permanent loss of earning capacity, and find that his loss should be 4%.

Monthly earnings

31.The applicant alleged that his monthly earning at the material time was $20,800.

32.This is supported by the Salary Record produced by the 1^st respondent which shows that the applicant had worked for 26 days in the month of April 2018 and that his daily wage was $800.

Calculation of section 9 compensation

33.The applicant was 47 years old at the time of the accident. The applicable multiplier is therefore 72.

34.By reasons of the aforesaid, section 9 compensation is assessed at $59,904 ($20,800 x 4% x 72).

Section 10 compensation

35.The applicant had been granted sick leave from 2 May 2018 to 3 April 2019, and all of which (except 2 days on 12 – 13 March 2019[3]) had been endorsed by the Board.

36.Dr Wong opined that sick leave up to 3 April 2019 was reasonable.

37.The applicant’s solicitor suggested that section 10 compensation should be assessed at $183,040 ($20,800 x 4/5 x 11 months). I agree and assess such compensation accordingly.

Section 10A compensation

38.The applicant has produced receipts showing that he has incurred medical expenses in the total sum of $2,050. I will therefore assess section 10A compensation at $2,050.

TOTAL AMOUNT OF COMPENSATION PAYABLE

39.The total amount of compensation payable by the 3 respondents is calculated as follows:

Section 9	$59,904
Section 10	$183,040
Section 10A	$2,050
		$244,994
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Less advance payment		($28,800)
		$216,194
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40.Interest should be awarded at half of the judgment rate from the date of the accident (30 April 2018) to the date of this Judgment, and at judgment rate thereafter until full payment.

COSTS

41.I make a cost order that the respondents shall bear the costs of the applicant (including all costs reserved, if any), to be taxed if not agreed. The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Mr John Massie of Massie & Clement for the applicant

The 1^st respondent appeared in person

The 2^nd and 3^rd respondents, unrepresented, absent