Hang Huu Duc v. Hanbo Engineering Ltd and Another

DCEC 201 / 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. DCEC 201 OF 2003

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BETWEEN

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Before: Deputy District Judge Tracy Chan in Court

Date of hearing: 1 March 2005

Date of handing down Judgment: 4 March 2005

J U D G M E N T

Introduction

1.This is an application for employees’ compensation by the Applicant under sections 9, 10, and 10A of the Employees’ Compensation Ordinance Cap. 282 (“the Ordinance”). Judgment on liability has been entered by consent on 29 April 2003. The present hearing is for assessment of the compensation only. The Applicant also appeals under section 18 of the Ordinance from the assessment made in the Certificate of Assessment dated 24 December 2003 issued by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”).

2.The Applicant aged 28 at the time of the accident, claims that he was injured on 27 March 2001 whilst at work. At the material time, he was a carpenter earning $28,860 a month in the employment of the 1^st Respondent whilst the 2^nd Respondent was the contractor of the 1^st Respondent. As a result of the accident, the Applicant suffered injuries to his left eye and is now under 100% visual disability in his left eye. He is now working as a watchman earning $5,105 a month.

Preliminary Matters

3.At the hearing, Mr. Lin (Counsel for the Applicant) and Mr. Chan (Counsel for the Respondents) agree to the admissibility and authenticity of the documents in parts C and D of the trial bundle. Parties also agree on the assessment under sections 10 and 10A to be in the sums of  $755,040.00 and $3,936 respectively. The Applicant will give credit to the advanced payments in the total sum of $655,893.00. The only item left to be contended is the compensation under section 9, to be more concise, the argument is on whether the Hong Kong Paper Mills formula should apply in the present case.

Expert Evidence

4.There is no dispute as to the expert evidence. Mr. Lin has succinctly summarised the medical evidence in his speeches.

5.The Applicant was examined by Dr. Tsui Chung Wan and Dr. Paul M.K. Cheung respectively. According to Dr. Tsui, the Applicant suffered from left eye penetrating injury with ruptured eyeball. He had a 100% left eye visual impairment. The damage is irreversible and there was no known treatment. The applicant therefore suffered from a 100% left eye permanent visual impairment, which was equivalent to a 50% impairment of the whole person. Other ocular impairment was assessed to cause an additional 2% visual impairment. Further the presence of left eye exotropia with cosmetic defect was assessed to cause another 2% impairment of the whole person. The overall impairment of the whole person was therefore assessed to be 51%, and the loss of earning capacity was 54%.

6.Dr. Tsui is of the opinion that because of the poor vision in his left eye, the Applicant had also suffered from impaired stereoptic vision, depth perception and fine visual discrimination. The working performance would therefore be less efficient and effective. He is therefore not able to return to his pre-accident occupation as a carpenter. He should not operate dangerous machines and not to work in hazardous environment, such as construction sites.

7.Dr. Cheung made similar clinical findings. He is of the opinion that 100% visual disability on the left eye is equivalent to 25% impairment to the whole visual system and 24% impairment of the whole person and thus 50% loss of earning capacity.

8.There was still mild congestion in the eye when the Applicant was examined by Dr. Cheung on 10 June 2003 and that was the cause of his complaint of discomfort, itchiness and watering in the eye. According to Dr. Cheung this would subside in one or two months’ time. Dr. Cheung is of the opinion that he was able to perform the task of transport worker, telephone operator, cashier, car park attendance, cleaner, watchman, factory worker, porter and messenger etc.

Assessment by the Ordinary assessment Board

9.The Applicant was assessed by the Board on 10 December 2003. A certificate of assessment was issued on 24 December 2003 whereby he was certified to suffer 50% loss of earning capacity.

Analysis of Evidence

10.The Applicant is the only witness called. He is a Vietnamese Chinese. He came to Hong Kong in 1993 and resided in closed camps thereafter until he was granted right of abode in Hong Kong. He tells the court that despite effort made in finding a job, it was only in last November that he was employed by  Fidelity Property Management Limited to be a watchman. His basic salary is now $5,105 after some slight adjustments.

11.He says that he first joined the force of construction site works in 1997. He started as a general worker. His duties were to put together some wooden planks and have them hooked to a crane for them to be lifted and transferred to omewhere. Then he followed a master to learn the skill to become a carpenter in the stream of board fixing. It took him one year to learn the skill on the job. His salary was then raised substantially as compared to that of a general worker. He normally worked 26 days a month and sometimes when the sites were busy he could have worked 30 days a month. He says it was because he was very hard working, he was welcomed by employers. 

12.After he recovered from his injuries, he tried to look for a job. He knew he could not return to his old trade, he had to start with something new. He tried with fast food shops or restaurants but he was not hired. It was because he has very low education level, his Punti is not as fluent as local people. His education was up to Primary 2 in Vietnam, he cannot not read or write much Chinese. When he reads Chinese newspapers, he understands about 50% of the content. He says he could not take up any strenuous work as whenever he uses force, the injured eye could not take the pressure and that would cause him pain in the eye and in the head.

13.I accept the doctors’ recommendation that the Applicant should not return to his old jobs at construction site because of the visual impairment he now has. After hearing the Applicant and having the benefit of watching his demeanor, I find that he is honest and truthful. I accept that he would have to face certain difficulties when finding a job given his background.  When one compares to the jobs recommended by Dr. Leung in paragraph 8 above to the Applicant’s qualifications, one would agree that there is not much choice left for him.

Compensation under Section 9

14.As I have said before, the argument in this hearing is whether the court should apply the Hong Kong Paper Mills formula as perfected in the case of Lui Kwong-yan v. Shui Hing Decoration Works & Another [1993] 1 HKLR 168 in assessing the compensation under section 9 of the Ordinance.

15.Mr. Lin, Counsel for the Applicant, says that there are special circumstances in the present case to justify the application of section 9(1A). Mr. Lin further agrees that this is not a section 9(1)(b) situation but that would not bar the court from applying the Hong Kong Paper Mills formula because of the presence of special circumstances.

16.To the contrary, Mr. Chan, Counsel for the Respondents, submits that it is not an appropriate case to apply the Hong Kong Paper Mills formula because there was no divergence of medical opinions on assessment; and that the percentage of loss of earning capacity has been specified and therefore it is not a section 9 (1)(b) application to allow the Hong Kong Paper Mills formula to apply.

17.From evidence before me, I find there are indeed some special circumstance. Before the accident, the Applicant was at least a semi-skilled worker.  From the statistics produced by the Applicant, a carpenter’s daily income ranked the second highest among other trades in constructions sites (p133e). Putting aside the nationality of the Applicant, he will now be an unskilled labourer competing with local workers for jobs which demand no special skills. His low education level and not being conversant in Chinese and Punti dialect do impose restrictions on him when trying to take on a new job. His earning capacity is thus further handicapped by such circumstances. Also, it is almost inevitable that he will have to face a substantial deduction in his income as an unskilled labourer even if he could get a job.

18.On the issue of whether the Hong Kong Paper Mills formula should apply, after hearing submissions, I disagree with Mr. Chan. Section 9 of the Ordinance has been amended by adding the phrase “Subject to subsection  (1A)” at the same time when section 9(1A) was added to the Ordinance in 1982. Further section 9(1A) reads “Where (a) permanent partial incapacity results from an injury or a combination of injuries (whether or not specified in the first Schedule)”. So from the statute itself, it has expressly included the “schedule injuries” and the “non- schedule injuries” into the application of section 9(1A). To read section 9 in its full context, it is apparent that the “special circumstances” test applies to applications made under either section 9(1)(a) or (b).

19.I agree with Mr. Chan that both Dr. Tsui and Dr. Cheung made their assessment and it was not made in a vacuum. I bear in mind that the court is not obliged to adopt the same assessment when the circumstances so warrant.

20.In the present case, I do find there are special circumstances. The special circumstances are set out in paragraph 17 above. They fall within those named under section 9(1A) (b) which is said not to be exhaustive.

21.For reasons set out above, I allow the appeal and adopt the Hong Kong Paper Mills formula in assessing compensation for the Applicant.

22.Applying the Hong Kong Paper Mills formula, the assessment under sections 9 and 7 should be:

21,000 x 96 x [($28,808 - $5,105) / $28,808] (82.3%)

= $1,659,168.00

Conclusion

23.To summarise, the quantum of the Applicant’s claim is as follows:

Compensation under section 9		$	1,659,168.00
Compensation under section 10		$	755,040.00
Compensation under section 10A		$	3,936.00
Less advance payment		$	655,893.00
	=	$	1,762,251.00

24.There is no dispute on interest and I find it just and fair to award interest on the net awarded sum from the date of accident until judgment at half judgment rate and thereafter at judgment rate until full payment.

25.I also order the Respondents to bear costs of this action, such costs is to be taxed if not agreed.

Representative

Mr. Kenny Lin instructed by M/s. Y.C. Lee, Pang & Kwok for Applicant

Mr. Daniel K. K. Chan instructed by M/s. Cheng, Yeung & Co. for Respondents.