Cheung Chin-hung v. Speed-trans Cargo Management Co. Ltd.

DCEC000267/1999

DCEC267/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 267 OF 1999

Coram: H H Judge Carlson in Court

Date: 19 December 2001

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J U D G M E N T

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1.This is an application for compensation under the Employees Compensation Ordinance. The respondents have not appeared, nor are they represented, and nor have they taken any interest in these proceedings from the outset. On 14 July 1999, his Honour Judge Yung entered judgment on liability against them, adjourning the issue of the assessment of compensation, and that is the matter that is now before me.

2.The applicant, Mr Cheung Chin-hung, was injured on 12 September 1997 in the course of his employment with the respondents, he having been employed by them as a container lorry driver, and at about half past 9 in the morning he was engaged in cleaning part of the inside of the container itself. He slipped, fell off the lorry and fractured his left wrist. That was a rather bad fracture which required an operation under general anaesthesia. The result of all this was that he was off work for 151 days.

3.A number of issues arise so far as the computation of his compensation is concerned, the most important of which is the question of the percentage of disability. The matter was of course considered in the ordinary way by the Employees Compensation Ordinary Assessment Board. It came to the view that the loss of earning capacity permanently caused by the injury was 3 per cent. The applicant was dissatisfied with that and so he asked for a review. The matter was reviewed and there is a certificate dated 2 November 1999 which also shows a loss of permanent earning capacity as a result of the injury at 3 per cent.

4.The applicant, as he is entitled to, now appeals against that certificate to this court and his appeal is supported by a very full report by Dr Au Kar-kou dated 27 August 2000. Dr Au, an orthopaedic surgeon, he has come to the view that the appropriate figure for loss of earning capacity is as high as 9 per cent.

5.The situation here is that the applicant has, after having had 151 days off work, been able to return to his pre-accident employment and although he continues to encounter some difficulties because, of course, as a result of this the wrist becomes painful when he is driving for long periods of time. I think the proper assessment, which was considered on two occasions by a board experienced in such matters and applying the correct criteria, is one of 3 per cent. I take the view that Dr Au, with great respect to him, has really exaggerated the position and so the appeal against the certificate is dismissed and I shall assess the matter using 3 per cent as the appropriate percentage.

6.So under section 7 and 9 of the ordinance, having regard to the fact that the applicant was 47 years old, the correct calculation will be as follows: the appropriate average earnings has been correctly stated at $20,695.80 but the maximum of course in those days was $18,000. That will be multiplied by 72 months, which is the correct multiplier having regard to his age, multiplied by 3 per cent, and that produces $38,880. Under section 10 he was given 151 days of sick leave, that is $18,000 divided by 30, multiplied by 151 days, multiplied by two-thirds, which was the correct figure then prevailing, produces a sum of $60,400. He has had medical expenses, that is under section 10A, $336. That then gives a total of $99,616 to which interest must be added at half the judgment rate from the date of the application - and so that the calculation will have to be made and so interest will be added to the award of $99,616 together with an order for costs in favour of the applicant. So that is the award. In addition, there must be Legal Aid taxation.

(Discussion re calculation of interest)

7.I will also say that this award will attract interest at the judgment rate from today until payment.

Representation:

Present: Ms Lam Yau-han, of Messrs Au Yeung, Cheng, Ho & Tin, for the Applicant

Respondent in person, absent