Wong Chun Nam v. Tang Koon Kau

DCEC1119/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1119 OF 2003

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BETWEEN

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Before: Her Honour District Judge Marlene Ng in Court

Dates of Hearing: 19^th and 20^th December, 2005

Date of Handing Down Judgment: 22^nd December, 2005

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J U D G M E N T

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Introduction

1.The Applicant claims that on 12^th March 2002 he was employed as a transportation worker/driver by the Respondent. He further claims that on that day, whilst in the course of employment, he was instructed by the Respondent to drive a light goods vehicle (the “LGV”) to transport goods from Tsuen Wan to Tai Po. Whilst the Applicant was driving the LGV along Tolo Highway heading for Tai Po Market, a collision occurred between the LGV and a heavy goods vehicle (the “HGV”). As a result of the said collision (the “Accident”), the Applicant claims he suffered personal injuries arising out of and in the course of employment for which he is entitled to employees’ compensation under the Employees’ Compensation Ordinance Cap.282 (the “Ordinance”).

2.The Applicant also seeks to appeal against the assessment of the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) under a Certificate of Review of Assessment issued on 1^st September 2004 (the “Form 9”) pursuant to section 18(1) of the Ordinance. The Form 9 stated that in respect of the Applicant’s “bilateral lower limbs injury resulting in pain and stiffness over left ankle, right hip and right knee; right leg numbness; right foot deformity and stiffness; left foot deformity, pain and numbness”, the period of absence from duty necessary as a result of such injuries was from 12^th March to 6^th December 2002 and 15^th April to 28^th October 2003 and the loss of earning capacity permanently caused by such injuries was 15%.

3.The Respondent accepts that the Applicant suffered personal injuries on 12^th March 2002 but says that the Applicant was his sub-contractor and a self-employed delivery worker providing cargo delivery services to the Respondent’s various customers. The Applicant was paid HK$400.00 per delivery job each day.

4.The Respondent was absent at the trial. Mr Pedruco, counsel for the Applicant, informed me that my Order dated 22^nd July 2005 which gave particulars of the date, time and venue of the trial was served on the Respondent on 29^th July 2005 (see affirmation of service filed on 16^th December 2005). Further, the trial bundle was served on the Respondent on 27^th October 2005 (see affirmation of service filed on 7^th November 2005). I am satisfied that the Respondent was served with notice of the trial hearing.

Liability

5.The Applicant gave evidence and adopted his witness statement as part of his evidence.

6.The Applicant said that when he finished Form 3 in 1997, he took a one-year carpentry course. After graduation he worked at a construction site as an apprentice in making artificial dolomite for about a year. During that year he also worked as a decoration worker for a short while. Such history is consistent with what he told Dr Jack Wong (“Dr Wong”) as recorded in Dr Wong’s expert medical report dated 27^th March 2004 (the “Report”).

7.The Applicant said he later joined Kau Kee Transportation (“Kau Kee”) as a driver and his then employer was the Respondent. Kau Kee’s main business was the transportation of frozen meat. Dr Wong also noted in the Report that the Applicant told him he worked as a frozen meat delivery worker for 2 years. The Applicant said his main work at Kau Kee was to collect the goods (ie the frozen meat) from the warehouses and deliver them to different customers.

8.At first the Applicant followed his colleagues in the vehicle when they made deliveries of the goods. When he turned 18, he was allowed to drive a truck to deliver the goods after he obtained a driving licence. When the Respondent saw that the Applicant could handle the work, he asked the Applicant to take on other tasks such as keeping track of orders, working out the accounts, loading and unloading the goods, etc.

9.During the time when the Applicant worked for Kau Kee, the Respondent owned 5 trucks, including the LGV. The Applicant was ordinarily allowed to drive 3 of the trucks, ie the LGV, a small goods vehicle and a medium goods vehicle (the “MGV”). Since he did not have a driving licence for heavy goods vehicle, his colleagues drove the remaining 2 trucks. The Applicant used to drive the MGV. But on the date of the Accident, the MGV was sent to the garage for examination so he drove the LGV to deliver the goods.

10.Kau Kee’s core business was to deliver the goods of the distributors to the wholesalers. The Applicant came to work at about 11:00 am. Either the Respondent or the Applicant would telephone the wholesalers to see what goods would be required for delivery that day. The distributors would then place orders with the warehouses and then send delivery notes to Kau Kee to transport the goods from the warehouses to the wholesalers. The Respondent would allocate his employees to collect the goods from different warehouses, so the Applicant and his colleagues would pick up the delivery notes and go to different warehouses to collect the goods. The Applicant said he had to sign receipts for several tens of orders every day. After all the goods were collected, the Respondent would separate and re-allocate the goods according to the delivery notes at the Kerry Cold Store for delivery by different employees/drivers to destinations in different districts. Sometimes, the Applicant and his colleagues would handle the re-allocation at one of the warehouses.

11.The Applicant and his colleagues would then load the goods onto the trucks and deliver them to different districts. The Applicant was responsible for making deliveries to Tai Po and Sheung Shui. The customers would have to sign/stamp on the delivery notes and also make payments to the drivers upon receipt of the goods. After the Applicant completed the deliveries assigned for the day, he would fill up the fuel tank of the truck and knock off work. He usually parked the MGV at a car-parking space rented by the Respondent at the Respondent’s cost in a private car park in Sheung Shui. The Respondent allowed the drivers to pay for the fuel from the monies they collected from the customers.

12.On the following day, the Applicant’s colleagues would give the fuel receipts, the signed/stamped delivery notes and the balance of the monies collected from the customers to the Applicant. The Applicant would check whether the amount of the monies was correct and separate the monies according to the distributors. He would then hand the monies and receipts/notes to the Respondent or to the responsible colleague for forwarding to the distributors.

13.Since the Applicant handled the orders, he knew what goods were in the warehouses and whether his colleagues had collected the goods. If the goods were not available, the Applicant had to telephone and chase up the relevant distributor. Since mistakes were easily made in the course of such tedious work, the Applicant’s colleagues were reluctant to take up the work. But as the Applicant was new to the job and made few mistakes, the Respondent insisted that he continue with such tasks even though he tried to decline.

14.The Respondent would telephone the Applicant many times during the day to supervise progress and to see if there were any problems that needed to be resolved. On many occasions the customers and the warehouses would directly telephone the Applicant to chase up on their orders or to ask him to solve problems on Kau Kee’s behalf. Ordinarily the Applicant would solve the problem first and then report to the Respondent. But if he could not solve the problem, he would immediately report to the Respondent.

15.The Applicant worked 26 days each month because the warehouses closed on Sundays. When he started working for the Respondent, his salary was HK$250.00 per day. After 1-2 months, his salary was increased to HK$7,000.00 per month. After he obtained his driving licence, there were gradual increments until about January 2001 when his monthly salary was increased to HK$9,800.00 with an extra month’s pay at the lunar new year. His remuneration remained unchanged at the time of the Accident.

16.Kau Kee’s usual practice was to pay half of the Applicant’s salary of HK$4,900.00 on the 15^th day of each month and the remaining half on the 30^th day of each month. The Applicant was paid in cash and there was no receipt. The Respondent frequented the warehouses to maintain his business contacts and he would pay the wages to his employees at the warehouses.

17.If the Applicant had to take sick leave, he could apply for sick leave on the very day. If he wished to take leave for personal reasons, he usually had to apply 1-2 days in advance to enable the Respondent to make appropriate alternative arrangements. The Respondent’s employees would usually take annual leave on the days when the warehouses closed for business.

18.In respect of the Accident, at about 3:30 pm on 12^th March 2002, the Applicant was driving the LGV from Tsuen Wan to Tai Po to deliver the goods. Before he started driving the LGV, he checked that it was functioning normally. The MVE Accident Report indicated that the LGV was operative or satisfactory apart from accident damage.

19.At about 4:30 pm the Applicant was on the Tolo Highway going from Shatin to Tai Po. He was driving at about 80km/h on the 2^nd lane from the left about 10m behind a heavy goods vehicle. The heavy goods vehicle slowed down, so the Applicant switched on the left indicator light and cut into the 1^st lane on his left. When he drove to the 1^st lane, he saw the HGV in front of him slowing down almost to stopping on the 1^st lane. At that time, the distance between the LGV and the HGV was about 10m only. The Applicant braked immediately. But due to inadequate distance between the 2 vehicles, he could not stop in time and the LGV bumped into the back of the HGV.

20.After the Accident, the Applicant’s feet were trapped by the front of the LGV, which was crushed. He felt very painful. Although he was conscious at that time, he later started to feel dazed. Firefighters then arrived at the scene and took 15-20 minutes to extricate the Applicant from the wreckage. He was taken by ambulance to the accident and emergency department (the “AED”) of the Prince of Wales Hospital (the “PWH”).

21.The Applicant later found out that the Respondent did not purchase any insurance coverage or apply for business registration for Kau Kee.

22.I accept the Applicant’s evidence described above on the balance of probabilities. I refer to the well-known test by Cooke J in Market Investigations Limited v Minister of Social Security [1969] 2 QB 173 as approved by the Privy Council in Lee Ting Sang v Chung Chi-keung [1990] 2 WLR 1173 :

“The fundamental test to be applied is this : ‘ Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’  If the answer to that question is ‘yes’, then the contract is a contract for services.  If the answer is ‘no’ then the contract is a contract of service.  No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases.  The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”

23.The aforesaid principles were approved and adopted in Poon Chau Nam v Yim Siu Cheung trading as Yat Cheung Airconditioning & Electric Co CACV86/2005 (unreported, 4^th and 15^th November 2005) where the Court of Appeal held that whether the person was an employee or an independent contractor was a question of fact to be determined by the trial court. 

24.In my view, the fundamental test to be applied in distinguishing between a contract of service and a contract for service is : “Is the person who had engaged himself to perform these services performing them as a person in business on his own account?”  If the answer to that question is “yes”, then, the contract was a contract for service.  If the answer is “no”, then, the contract was a contract of service. Chitty on Contracts 29^th ed, Vol.2 at paras.39-010 - 39-028 at pp.943-955 also set out some of the factors which should be considered in determining whether a person was engaged as an employee or an independent contractor.

25.Applying the law to the facts of the present case, I have no hesitation in concluding that the Applicant was an employee of the Respondent on the date of the Accident. Not only did he work at the direction and supervision of the Respondent, the Respondent owned and supplied him with the relevant equipment (ie the trucks including the LGV) and paid the car-parking fee for the MGV. The Applicant merely earned wages for services rendered by him and took no risk of profit or loss in respect of the transportation business. The Respondent also exercised organisation and control by allocating the delivery work and telephoning the Applicant to check on progress. Although the Applicant was given extra responsibilities in dealing with accounts and other tasks as compared with his other colleagues, it does not detract from the conclusion that he was an employee.

26.I further find on balance that the Applicant was transporting the goods in the course of work when the Accident happened. There is no dispute that he suffered personal injuries as a result of the Accident. In the circumstances, I accept that the Applicant suffered personal injuries arising out of and in the course of employment.

Quantum

27.The Applicant gave evidence in respect of his injuries and disability. I observed that he was able to walk independently to the witness box.

28.Dr Wong also gave evidence as to the Applicant’s orthopaedic condition. Having heard Dr Wong describe his curriculum vitae and experience, I accept he is a specialist in orthopaedics and traumatology and can give expert evidence on the Applicant’s medical condition.

29.The Applicant was born on 27^th October 1982 and was 19 years old at the time of the Accident. When he was 7 years old, he fell and broke his left arm. He has since recovered from the injury. The Applicant claimed that apart from such injury he was always in good health.

30.The Applicant said he lost consciousness upon arrival at the AED of the PWH. According to the report of Dr Wong Kim Chiu of the AED of the PWH dated 10^th November 2003, the Applicant suffered the following injuries, namely, abrasion over the right side of the abdomen, swelling and abrasion over the right hand, abrasion over the left hand, abrasion and irregular laceration over the left knee, mild deformity over the left ankle, deformity over the right thigh, 15 cm laceration over the right knee, deformity over the right leg and fracture of left ankle, right femur, right tibia and right fibula as shown by x-ray.

31.Dr Wong in the Report further noted fracture of right knee medial femoral condyle, right foot Lisfranc fracture and soft tissue injury, fractures of left fibula and medial malleolus and left foot soft tissue injury with great toe IPJ dislocation (see also the report of Dr K O Kwok of the orthopaedic and traumatology department of the PWH (“Dr Kwok”) dated 13^th January 2004).

32.Emergency operation was performed and external fixator was applied to the Applicant’s right leg and intramedullary nail was inserted over the left femur.

33.The Applicant said he regained consciousness during the night of 13^th March 2002, but felt dizzy and poorly. His feet felt very painful. He fell asleep but woke up in the middle of the night feeling sick. He was given regular painkiller injections, which allowed him to rest a little, but there was intolerable pain and he could not rest well. He often felt sick and could not eat.

34.The Applicant said he had a second operation for cleaning the wound on 15^th March 2002. Dr Kwok in his report said open reduction and internal fixation were performed on 21^st March 2002 for the other fracture. Multiple surgeries of debridement and skin graft were performed subsequently. According to the Applicant, he underwent a skin graft operation on 22^nd March 2002 and debridement on 25^th March 2002.

35.The Applicant said he altogether had 5 operations under general anaesthesia. During this period, he could not get out of bed and had to use a catheter for passing urine. He slept most of the time and his swollen feet had to be raised. He was bedridden until 11^th April 2002 when the physiotherapist made him use equipment to maintain his lung function and to train his hands.

36.The Applicant was transferred to the Shatin Cheshire Home (the “SCH”) on 12^th April 2002. He was readmitted to the PWH for removal of the implants from the tarsal and metatarsals from 27^th April until 2^nd May 2002 when he was transferred back to the SCH. The Applicant had physiotherapy every day at the SCH. He learned how to walk with the assistance of equipment and underwent electrotherapy to stimulate the nerves of his feet. He had occupational therapy to increase the strength of his right knee. He had a difficult time with this treatment although it did help him in his recovery. It was not until June 2002 that the Applicant was able to walk on his own with crutches. He was discharged on 9^th June 2002. At that time he still had an external fixator applied to his right leg to enable his bones to unite and heal in proper position.

37.Between 11^th June and 18^th July 2002, the North District Hospital (the “NDH”) arranged for a nurse to visit the Applicant every other day to change the medication for him.

38.The medical report by Ms W K Tang Kindy of the NDH’s physiotherapy department dated 8^th November 2003 stated that the Applicant received his first physiotherapy treatment on 20^th June 2002. At that time, the Applicant could walk independently with crutches. His right lower leg was still on external fixator. Muscle atrophy of the right quadriceps was noted. There was decreased active range and power in the Applicant’s right knee and ankle. His left ankle movements and power were also decreased. The Applicant received 5 sessions of physiotherapy treatment, which included electrical simulation, magnetic field therapy, balance and proprioception training, mobolising and strengthening exercises of both knees and ankles.

39.On 19^th July 2002, the doctor at PWH noted on the NDH’s physiotherapy progress report that fracture stability was satisfactory and the Applicant could continue with full weight bearing as tolerated. But the Applicant defaulted treatment since 17^th July 2002.

40.In fact, on 12^th July 2002, the Applicant attended a private doctor, Dr David P M Chow, for his leg injury. On 13^th July 2002, he attended the AED of the PWH for treatment of ulcer on his left big toe with mild swelling and redness. The Applicant was admitted to the PWH from 22^nd July to 1^st August 2002 when he was referred to the Alice Ho Miu Ling Nethersole Hospital (the “AHMLNH”) for one day to undergo nerve conduction test and electromyography. Dr Wong said he was not shown the results of the nerve conduction test, which were also not available in the trial bundle. However, the Applicant claimed that the results showed some of his nerves were damaged.

41.The Applicant said when he returned to the PWH’s physiotherapy department for removal of the external fixator, a doctor from the neurological department was present and he told the Applicant to wait for his nerves to gradually recover. Such doctor also said the Applicant’s bones were not yet fully united.

42.The Applicant was hospitalised at the NDH on 5^th September 2002 and was transferred to the PWH from 6^th to 13^th September 2002 for foot ulcer. After discharge, he continued to receive physiotherapy treatment at the NDH and attended regular follow up treatment at the Li Ka Shing Orthopaedic Clinic of the PWH. But according to Dr Kwok’s report, the Applicant last attended follow up on 25^th October 2002 and thereafter defaulted. Dr Kwok stated that the fracture was healed, but the bone scan suggested multi-focal osteomyelitis (infection of the bone).

43.The Applicant was admitted to the NDH from 6^th to 8^th February 2003 for upper respiratory tract infection, which corresponded with the medical certificate dated 8^th February 2003 stating that the hospitalisation was for medical illness. Plainly such sick leave period is irrelevant to the present claim and Mr Pedruco confirmed that the Applicant would not seek periodical payments for such period.

44.The Applicant was admitted to the NDH from 13^th to 19^th March 2003 for hip and thigh injury, namely, right hip, right mid thigh and right knee pain after a fall. There was no mention that the Applicant had a fall in either Dr Wong’s Report or in the Applicant’s witness statement. Indeed, Dr Wong said the Applicant never told him about a fall. The Applicant denied he had a fall since the Accident when he gave evidence. However, there is no persuasive reason on the evidence before me why Dr Hui King Wai would state such diagnosis in the Discharge Slip dated 19^th March 2003 unless he was so informed by the Applicant.

45.Further, I find the Applicant’s explanations unsatisfactory in this respect. When asked as to the meaning of “fall”, the Applicant claimed it referred to the Accident and still later claimed it referred to the collapsed broken bones of his right knee. These explanations are unconvincing. It is difficult to envisage any doctor describing the Accident as a fall. Indeed, the medical records show that the doctors did refer to the injury as being caused by “traffic accident”. On the other hand, if the hospitalisation were related to the collapsed broken bones of the Applicant’s right knee, it does not explain why the doctor mainly characterised the diagnosis as hip and thigh injury.

46.I also note that although there is a medical certificate dated 7^th September 2003 which covered the hospitalisation period of 13^th to 19^th March 2003, the Board excluded such period as relevant sick leave period in both the Certificate of Assessment (Form 7) dated 15^th September 2004 and the Form 9. On balance, I am not persuaded that such period of hospitalisation from 13^th to 19^th March 2003 was attributable to the Applicant’s injuries caused by the Accident or that the Respondent should be liable for the ward fees of HK$408.00 or periodical payments for that period.

47.The Applicant visited a Chinese bonesetter twice on 23^rd March and 1^st April 2003, but the progress was insignificant after these 2 visits. Mr Pedruco conceded that the Applicant would not make any claim for the bonesetter’s charges. I find this approach correct in light of the definition of “medical expenses” in section 3(1) of the Ordinance.

48.According to Dr Wong’s Report, the Applicant was admitted to the PWH in January 2004 for removal of implants and left foot tendon release.

49.On 8^th April 2004, the Applicant attended the NDH for bursitis of the right hip and was transferred to the PWH for one day. There was a 4 cm tender subcutaneous swelling over the trochanteric region of the right hip. X-ray suggested some suspicion of erosive change to the right femur nail proximal screw head. Dr Wong said he had reviewed the x-ray film taken for his examination of the Applicant. He noted the proximal ends of the implant were protruded with some new bone formation. He opined that the bursitis and painful swelling were associated with the Applicant’s injuries arising out of the Accident and/or the consequent surgeries.

50.The treating doctor then arranged for the Applicant to return to the PWH from 8^th to 13^th May 2004 for an operation to remove the right hip proximal locking screw. Again Dr Wong confirmed such operation was associated with the Applicant’s injuries arising out of the Accident and/or the consequent surgeries.

51.On 20^th May 2004, the Applicant was admitted to the PWH again for post-operative wound infection. He was discharged on 26^th May 2004 and the doctor asked him to return on 4^th and 18^th June 2004 for follow up treatment.

52.The Applicant was admitted to the NDH from 26^th February to 1^st March 2005 for abdominal pain and fever. Laparoscopic incidental appendicectomy was done. This was confirmed by a Discharge Slip by the NDH dated 1^st April 2005 and a referral letter from the NDH dated 22^nd April 2005 although the relevant medical certificate dated 1^st April 2005 stated that the hospitalisation was for right thigh pain. No evidence was led from the Applicant in respect of the treatment for his appendix condition and/or for this period of hospitalisation. Mr Pedruco conceded there would be no claim in respect of this hospitalisation period. In any event, given that laparoscopic appendicectomy was performed, I am not persuaded on balance that such hospitalisation is pertinent to the subject claim.

53.The Applicant was transferred to the PWH from the NDH on 1^st March 2005 for osteomyelitis of the right femur. He was hospitalised until 17^th March 2005 for removal of implanted device from the femur and nonexcisional debridement of wound or infection of the right femur. The Applicant was transferred to the Tai Po Hospital on 17^th March 2005 for convalescence and stayed there until discharge on 31^st March 2005. Dr Wong confirmed that these treatments and hospitalisation were associated with the Applicant’s injuries arising out of the Accident and/or the consequent surgeries.

54.On 2^nd July 2005, the Applicant was admitted to the PWH for orthopaedic aftercare (removal of right femur gentamycin bead). He was discharged on 7^th July 2005. Dr Wong explained that gentamycin was a form of antibiotic and the gentamycin bead was a common device used by orthopaedic surgeons to treat infection of the bone, which condition correlated to earlier records of the Applicant suffering from osteomyelitis. Dr Wong confirmed that these treatments were associated with the Applicant’s injuries arising out of the Accident and/or the consequent surgeries.

55.In my view, the sick leave periods granted by the doctors during the three-year period following 12^th March 2002 (date of the Accident) relevant to the Applicant’s injuries arising out of the Accident are as follows :

Sick leave period	Number of days		Remarks
12/3/02 – 6/12/02	270		Certified by the Form 9
15/4/03 – 28/10/03	197		Certified by the Form 9
8/4/04 – 10/4/03	3		Medical certificate(s)
8/5/04 – 18/6/04	42		Medical certificate(s)
1/3/05 – 11/3/05	11		Medical certificate(s)
	523 days

56.Mr Pedruco in his written final submissions (submitted after the first day of trial) accepted that the Applicant would only be entitled to periodical payments for periods supported by the medical certificates. The Applicant gave evidence that he sometimes forgot to ask the doctors for the medical certificates. But Mr Pedruco fairly agreed there was no evidence to the effect that had the Applicant remembered to request for medical certificates, the relevant doctors would have met such requests. In the circumstances, since there was no medical certificate covering the period from 7^th December 2002 to 5^th February 2003, Mr Pedruco conceded during his oral final submissions there would be no claim for periodical payments in respect of such period. But Mr Pedruco in his further written final submissions submitted after the second day of trial maintained that the period of 7^th December 2002 to 5^th February 2003 was a relevant sick leave period.

57.The above confusion makes it difficult to understand the Applicant’s stance. What is clear is that Mr Pedruco in his oral final submissions adhered to the position in his earlier written submissions that the Applicant would only seek periodical payments for periods covered by pertinent medical certificates. Indeed, the Applicant (even on his own case) did not claim for continuous sick leave. Further, the Applicant did not adduce any particular evidence on the medical treatments or his physical/medical condition for the period from 7^th December 2002 to 5^th February 2003. Looking at the totality of the evidence and bearing in mind Mr Pedruco’s submissions, I am not persuaded on balance that 7^th December 2002 to 5^th February 2003 is a relevant sick leave period.

58.The Applicant seeks periodical payments beyond the 24 months from the date of the Accident. I note that although Dr Wong in the Report opined that sick leave of 20-24 months would be reasonable and he endorsed the sick leave periods in the Form 9, he also alluded to the need for future surgery for the removal of the implants. It should be remembered that Dr Wong’s Report was prepared in March 2004. When he gave evidence, Dr Wong said that sick leave for the removal of the implants and the consequent rehabilitation would be justified, and agreed that the further sick leave periods in 2004 and 2005 referred to above were related to the Applicant’s injuries arising out of the Accident and/or the consequent surgeries and infection control. He accepted that such sick leave periods were reasonable and appropriate. In the circumstances, I consider it appropriate to exercise my discretion to allow periodical payments beyond 24 months for the periods set out in paragraph 55 above pursuant to section 10(5) of the Ordinance.

59.In respect of his present condition, the Applicant claimed his memory worsened considerably and his thinking was slow. He was often forgetful. He believed it was because he underwent general anaesthesia several times. The Applicant also believed he was less immune to diseases. He often had to stay at home and was unable to do anything. He felt low and worried about his injuries. The economic situation was tight as his father lost his job at about the same time and the family had to live on savings and loans. The family members were all in a bad mood. Although the Applicant said his emotions had since become more stable, he still felt depressed over his injuries and his future career. He was afraid he could not return to carpentry and artificial dolomite work both of which required lifting heavy objects.

60.I am not persuaded that the Applicant had any psychiatric disability. Indeed, Mr Pedruco did not suggest that the Applicant had any. Dr Wong, being an expert doctor, was satisfied when he prepared the Report that the Report covered all injuries and he further opined it was unnecessary for the Applicant to be assessed by any other specialist. There was no reference in the Report to any psychiatric concern. I am satisfied on balance that if there were any anxiety, which the Applicant did not exhibit when he gave evidence, it would be resolved after the present litigation is concluded.

61.Dr Wong was of the view that the Applicant suffered from serious injuries to both lower limbs with residual pain over multiple sites, multiple disfiguring scars, weakness of both lower limbs especially on the right side, diminished sensation of both feet and clawing deformity of most toes. The Applicant was independent in his daily activities, but he was incapable of prolonged walking, prolonged standing, exertion or carrying heavy load. His weight bearing endurance was reduced. Functionally, the Applicant had difficulty in squatting or crawling and he could not run or jump.

62.Examination revealed multiple painful, itchy and pigmented scars, callosity over both great toes, deformed left great toe, clawing of most toes, deformed right foot, bilateral swollen and stiff ankle joints, stiffness of the right hip joint, muscle wasting of the right thigh and calf, and 1.5 cm shortening of the right thigh. All factures had healed satisfactorily in anatomical position, but there were degenerative changes over the mid-right foot. Accordingly, Dr Wong concluded that the above injuries combined to cause 25% impairment of the whole person according to the AMA Guide.

63.Dr Wong opined that as a result of the medical treatments received by the Applicant since he compiled the Report, he expected there would be some improvement to the Applicant’s right hip pain after removal of the implants, but otherwise there should not be any significant improvement to the other impairments.

64.Dr Wong pointed out that the description of injuries in the Form 9 omitted reference to (a) shortening of the right thigh bone of 1.5 cm, (2) multiple itchy and pigmented scars over both lower limbs, (c) numbness over the left foot, (d) stiffness of the left foot joint and toes and (e) wasting of right thigh and calf muscles.

65.Dr Wong in the Report suggested that there was some form of nerve damage, which resulted in the clawing of the toes and diminished sensation of both feet. Dr Wong when he gave evidence fairly accepted he could not point to any objective evidence of neurological deficit and he had not seen the results of the nerve conduction test, but he opined that circumstantially there was neurological deficit. The Applicant’s treating doctor did recommend a nerve conduction test and there was loss of sensation in the Applicant’s lower limbs. Further, a left foot tendon release (which was surgery for releasing a tight tendon) was performed. Dr Wong said these were likely indicia of neurological deficit.

66.Dr Wong opined that the Applicant could resume his pre-accident job as lorry driver with reduced inefficiency, ability and endurance. But the Applicant’s previous duties as a transportation worker, as he informed Dr Wong, also included lifting frozen meat, a pack of which usually weighed 25kg and sometimes up to 41kg. Dr Wong explained that whether the Applicant would be able to carry frozen packs of meat would depend on the size and shape of the pack. Judging from the Applicant’s physical impairment with wasting of muscles, joint stiffness, deformed foot and toes, and pain over joints and scars, Dr Wong opined that physically there would be some difficulty for the Applicant in carrying heavy objects over a prolonged period.

67.The Applicant said that before the Accident, he rode a bicycle to the car park in Sheung Shui every morning to collect the MGV, but he could not do so after the Accident as his feet felt very painful. When the Applicant made his witness statement, his feet still hurt, especially his right foot. He said it might be because of the implant in his right hip. He frequently felt pain in the middle of his right thigh and his shank, the area about 2 inches above the right ankle and the underside of his left shank. This was especially so at the fracture sites of his right thigh and right knee. He felt weak and painful when he was walking and standing. At the time when he made his witness statement, he had to take a 15-20 minutes’ rest after walking slowly for half an hour. If he walked fast, he would feel serious friction at the fracture site of his right thigh. He could not run or squat. He had to walk very slowly up the staircase and at most could only walk up 4 flights of stairs.

68.According to Dr Wong’s Report, the Applicant did not work until February 2004 when he worked as a lorry driver delivering frozen meat. The Report noted that he worked with some difficulty but the Applicant did not elaborate on this to Dr Wong. However, the Applicant stated in his witness statement dated 18^th August 2004 that he did not resume work.

69.The Applicant when he gave evidence explained that in February 2004 his friend in the frozen meat business asked him to help. The Applicant tried to resume work as a frozen meat delivery worker/driver. But it was too difficult for him to handle, so he ceased working after 2-3 days. He rested for a few more months before he resumed driving a private car for leisure in mid-2004.

70.The Applicant explained he did not try to find work previously because he had to undergo various surgeries and rehabilitation for removal of the implants and had to attend follow up treatment. By the time of the trial, he no longer had to attend physiotherapy treatments and only needed to attend follow up treatment every half year. The Applicant had attempted to find work through friends and newspaper advertisements, but he did not register with the Labour Department. He looked for jobs as a driver or for other lighter jobs, such as delivery of take-away food to customers, but in vain. About 4-5 months ago, he had an interview by a restaurant proprietor in Sheung Shui for delivering take-away food, but the potential employer later said he employed someone else. About 3 months ago, he had an interview in Kwai Chung for a job as a driver and was told to wait for the results, but nothing came out of it.

71.Save for various matters discussed above, having considered the history of medical treatments received by the Applicant, I accept on balance the evidence of Dr Wong and the Applicant.

72.In respect of the Applicant’s appeal against the assessment of loss of earning capacity in the Form 9, it is a matter for the court and not the doctors to determine what the Applicant’s loss of earning capacity is (Kwan Yee Chor v Hung Fau Metal Construction Company Limited and ors [2002] 2 HKLRD 768).

73.I accept Dr Wong’s evidence that the Applicant’s injuries and disabilities are more far-ranging than described in the Form 9. The Applicant has lost his agility and endurance, which is a significant for a young man with Form 3 education and trained for manual work. The Applicant’s previous jobs all required to some extent carrying heavy objects. The Applicant had resumed driving private cars, so I expect (as Dr Wong opined) he could in due course return to the job of being a driver with diminished efficiency, but he would be handicapped if he worked as a transportation/delivery worker cum driver because his endurance, ability and efficiency in handling heavy loads would be diminished. He would be incapable of prolonged walking/standing and he could not run. He would have difficulty in squatting. Looking at the matter in the round, having considered the above matters, it would be fair to say that the Applicant has lost a quarter (25%) of his earning capacity. I therefore allow his appeal against the assessment of loss of earning capacity in Form 9 to such extent.

74.I accept on balance the Applicant’s evidence that his monthly earnings at the time of the Accident were HK$9,800.00 and he was entitled to an extra month’s pay at the lunar new year. In the circumstances, the Applicant’s average monthly earnings for calculating employees’ compensation are HK$9,800.00 + (HK$9,800.00 ÷ 12 months) = HK$10,616.67.

75.In the circumstances, the award under section 9 of the Ordinance is HK$10,616.67 x 96 months x 25% = HK$254,800.08.

76.The award under section 10 (including section 10(5)) of the Ordinance is HK$10,616.67 x 4/5 x 523/365 x 12 = HK$146,038.84.

77.The award under section 10A of the Ordinance for medical expenses incurred by the Applicant is HK$11,217.00 with breakdown as follows :

The Applicant produced 5 receipts of HK$15.00 each for attendances at the Department of Health Shek Wu Hui Jockey Club Clinic for the period from 20^th September to 22^nd October 2002. But Mr Pedruco in his further written final submissions submitted after the hearing on the 2^nd day of the trial abandoned such claim for HK$75.00.

Conclusion

78.The compensation awarded in this case is HK$254,800.08 + HK$146,038.84 + HK$11,217.00 = HK$412,055.92. I therefore order that the Respondent do pay the Applicant the sum of HK$412,055.92 and interest thereon at half judgment rate at 4.617% pa from the date of the Accident to the date of judgment and thereafter at judgment rate until payment.

79.There is no reason why costs should not follow event. I therefore grant a costs order nisi that the Respondent do pay the Applicant costs of the proceedings, including all costs reserved (if any), to be taxed if not agreed with certificate for counsel.

Mr Luiz A A da Silva Pedruco instructed by Messrs B Mak & Co for the Applicant.

The Respondent in person and absent.