Yung Chi Man v. Tang Kan Fu t/a Yun Shing Motor Service
Read the full judgment text of DCEC 770/2004 on BabelCite. This District Court judgment was delivered on 6 February 2006.
2. The Respondent admitted liability.
Cites 2 cases
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DCEC 770/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 770 OF 2004 ____________________________ IN THE MATTER OF an application between
________________________________________ Coram: Deputy District Judge Yau in Court Date of Hearing: 12th January 2006 Date of Handing Down of Judgement: 6 February 2006 _________________ JUDGEMENT _________________ Introduction On 24 may 2001 when the Applicant was repairing a tractor while in the employment of the Respondent the oil tank of the tractor caught fire and exploded, causing burnt injuries over 55% of the Applicant’s body. 2.The Respondent admitted liability. Application of the Applicant 3.The Applicant applies for :
4.The Applicant also asks for leave for the present application to be received and determined by the court under section 14(4) of the ECO notwithstanding that the application has not been made in due time as required under section 14(1). The Respondent has no objection to the application and leave is accordingly given. Issues 5.The Respondent makes it clear to court at the outset that it is arguing against the extension of the length of period for periodical payments and the Applicant’s appeal against the assessment made by the Employees’ Compensation (Ordinary Assessment) Board. 6.As regards the payment of medical expenses the parties agree that the outstanding amount is $200 and the Respondent agrees to pay it. 7.The Applicant admits to have received a total of $175,054.35 from the Respondent but argues that it was periodical payments under section 10 of the ECO. The Respondent, however, contends that this money was not only periodical payments but also included advancement of compensation and is sufficient to satisfy the whole claim of the Applicant under the ECO. Case of Applicant 8.The Applicant gives evidence in court but does not call any witness. He adopts his witness statement (pages 33 to 46 in the Bundle) as part of his evidence. He says that he was born on 18.11.1982 in China. He came to Hong Kong in 1998 and had received education up to Form 1. He joined the Yun Shing Motor Service, the garage operated by the Respondent, in 1999 as an apprentice at a monthly wage of $5,000. He was given a rise in wage after working for 2 years and at the time of the incident he was earning $5,500 a month with year-end double pay. 9.On 24.5.2001 when he was repairing a diesel tank an explosion occurred and he suffered burnt injuries and lost consciousness. He was hospitalised for one and a half months during which time he underwent 3 skin grafting operations. He later received physiotherapy and occupation therapy. He was required to wear pressure garment for 3 odd years until 2004. He was given sick leave from 24.5.2001 to 16.1.2004. 10.The Respondent made periodical payments to him every month during his sick leave and he had received a total of $175,054.35. The Respondent had never told him that this money would be deducted from the employee’s compensation and he had in fact not talked to the Respondent since the accident. The business of the Respondent was closed down in mid-2002. The Applicant later discovered that the Respondent had not taken out insurance for him. 11.As a result of the injuries suffered in the accident the Applicant often feels itchy at the scars and the reaction of the person has become much slower. When he sweats the scars on the chest will become itchy and painful. He is afraid of climbing up and down and his balancing ability has been adversely affected. He had encountered difficulties in finding work and was only able to secure his present job in October 2005 as a security guard with a monthly wage of $6,100. He is only able to handle jobs in which the boss is not so demanding but he admits that this has nothing to do with his physical conditions. Case of Respondent 12.Although the Respondent has not given a witness statement, by consent of the Applicant and leave of the court he is allowed to testify in court. He says that after the accident he had talked to the parents of the Applicant and told them he would pay his son in accordance with the labour law. The parents said that they were in financial difficulties as they had no job and had to take care of the Applicant. The Respondent therefore agreed to pay the full wage to the Applicant, but made it clear that any extra money paid would later be deducted from the compensation to be calculated in accordance with the labour law. The Respondent says that he wrote “labour injury” on the pay slip because his intention was to have the money deducted from the employee’s compensation once assessment of the Applicant’s injuries had been made. 13.In April 2002 the garage of the Respondent was about to be closed down. He informed the Applicant’s parents about it and said that he would continue to pay the Applicant until the end of his sick leave. At the request of the parents of the Applicant he prepared the document at page 142 of the Bundle (“payment document”). In the document it was stated that after the closure of the garage the Respondent would continue to pay $5,500 to the Applicant every month as compensation for his living expenses until the Applicant was certified by the doctor to have recovered. The payment document was returned to the Respondent by the parents after it had been signed by the Applicant. The Respondent says that by “compensation for his living expenses” he meant that the money was paid to the Applicant as compensation. The Respondent also admits that due to a misunderstanding between himself and the insurance agent the insurance coverage of the Applicant had expired when the accident occurred. Evaluation of Evidence 14.It is not in dispute that the Applicant has suffered injuries as a result of an accident while working for the Respondent. His evidence is mostly not disputed. As regards the money paid to him by the Respondent while he was on sick leave he had never talked to the Respondent about the nature of such payments and the money had been collected on his behalf by his parents, mostly his mother. 15.The Respondent gives evidence that on learning the financial difficulties of the Applicant’s family he had told the parents of the Applicant that he would be paying full wages to the Applicant but the extra money paid was to be deducted from the employee’s compensation after the assessment of the injuries of the Applicant had been made. The Applicant has chosen not to call any evidence to rebut the assertion of the Respondent. The contents of the payment document also serve to support the Respondent’s contention. The court is of the view that what the Respondent has told the court is truthful and reliable and is accepted by the court and that the money paid was meant to be periodical payments as well as advancement of compensation. Assessment Under ECO 16.The injuries of the Applicant were first assessed by the Employees’ Compensation (Ordinary Assessment) Board on 16.6.2004 and the permanent loss of earning capacity was assessed at 8% (page 93 of the Bundle). On an application for review by the Applicant a second assessment was made on 6.10.2004 and the result was varied to 10%. Medical Reports 17.According to a number of medical reports the Applicant suffered 55% burnt over his body and was admitted to hospital on 24.5.2001. He had undergone 3 skin graft operations and treatments for post operation complications. He had also received physiotherapy and occupational therapy. The wound had healed well and he was discharged from hospital on 5.7.2004 when he was clinically stable. As the Applicant was not concerned about cosmetic surgery the case was closed by the hospital on 16.1.2004. 18.According to the occupational therapy reports the Applicant had received scar management by wearing pressure garment and pressure padding for the trunk and upper and lower limbs since 14.8.2001. On the maturation of the scars on different parts of the body the pressure garment had been taken off in stages and the process was completed in November 2003. 19.The Applicant underwent a medical examination arranged jointly by the Applicant and the Respondent on 13.6.2005. According to this medical report (pages 53 to 82 of the Bundle) the scars had matured and flattened and they did not affect important parts of the body such as the face, the neck, the wrist, the hand and the fingers and were not causing significant functional disturbances. 20.The colour and texture of the scars could be improved by up to 30% with treatments of pulsed dye laser. The cosmetic disability arising from the unsightly scars was estimated to be 20% without such treatment and 14% with treatment. The loss of earning capacity arising from the scars was estimated to be approximately 10%. Compensation for Loss of Earning Capacity 21.This is compensation under section 9 of the ECO. Under this head of compensation the Applicant is appealing against the assessment of 10% made by the Employees’ Compensation (Ordinary Assessment) Board under the ECO. 22.According to the medical reports the wounds of the Application have healed well and are not causing significant functional disturbances. As the scars are unsightly the joint medical report says that they do not affect important parts of the Applicant’s body. 23.The Applicant submits to the court that the loss of earning capacity of the Applicant should be 25%. He cites to court the case of LUI Sheung Lok v Wah Wah Travel Services Limited HCPI 1188 of 1999. In this case the plaintiff, a driver of 54 years of age, suffered burnt injuries to 15% of his body surface including the head, neck and both upper limbs while performing driving duties for his employer. The doctor examining the plaintiff and the Employees’ Compensation (Ordinary Assessment) Board both came to the conclusion that the loss of earning capacity sustained by the plaintiff was 17% and this was accepted by the court. The doctor also assessed the cosmetic disability of the plaintiff to be 5%. The Applicant points out that as compared with the plaintiff the injuries he suffered in the present case are much more severe. He argues that the loss of his earning capacity should be assessed at 25%. 24.The arguments of the Applicant are misconceived. For the purpose of assessing the loss of earning capacity the relevant consideration is not the seriousness of the injuries but the effect of the injuries on the earning ability of the employee. In the authority cited the plaintiff had extensive scars on his neck, right arm and hand and right leg, which were a constant source of itching, discomfort and embarrassment to him even after four years of the accident. More importantly, his right arm and hand were weak as flexibility had been significantly reduced. He was unable to carry heavy objects. With the loss of dexterity and increasing pain in his right hand after working for long hours he had found it difficult to resume driving career. 25.According to the medical report in the present case the scars of the Applicant are unsightly and the injuries have not caused him any significant functional disturbances. This contrasts significantly with the conditions of the plaintiff in the case cited. 26.In the present case the doctors in the joint medical examination came to an assessment of 10% and the Employees’ Compensation (Ordinary Assessment) Board also came to a similar finding. Their assessments are of course not binding on this court and the court has to consider all the relevant evidence and circumstances of the case before coming to a conclusion. The Applicant says in court that the scars often cause itching and he gets tired easily. He, however, admits that he can walk for more than an hour although his leg may feel a bit stiff afterwards. He also admits that he can run although the scar at the heel causes some pain. 27.The court accepts that itching of the scar, the stiffness of the legs after long hours of walk and the pain in running will affect the daily life and working ability of the Applicant. The court has also borne in mind the Applicant’s assertion, which is not found in any of the medical reports, that his reaction and balancing power have been adversely affected. The court is, however, of the view that taking all the disabilities which the Applicant suffers into consideration the extent of loss of his earning capacity is far less than 25% and the court comes to the conclusion that 10% is the most appropriate and correct assessment. The appeal of the Applicant against the finding of the Employees’ Compensation (Ordinary Assessment) Board is accordingly dismissed and the loss of earning capacity of the Applicant is assessed at 10%. 28.It is agreed between the parties that the monthly earnings of the Applicant for the purpose of calculation of compensation under the ECO is $5,958.33. The Applicant is now aged 23 and was aged 18 at the time of the accident. The compensation for the permanent loss of earning capacity is therefore:
Periodical Payments 29.This is compensation under section 10 of the ECO and the Application also asks under section 10(5) for the court’s leave to extend the period of periodical payments to cover the whole period of the Applicant’s sick leave of 31 months and 22 days. At the outset of the trial the Respondent makes it clear that it is taking no issue regarding the length of sick leave granted to the Applicant but is objecting to the extension of the period of periodical payments. The Respondent, however, in its final submission agrees that if the sick leave of an employee goes beyond 24 months the court should give leave to extend the length of period for the periodical payments unless there are good reasons not to do so. The sick leave of the Applicant is supported by sick leave certificates and with the injuries he has suffered the length of the sick leave is in the view of the court reasonable. This is also accepted by the Respondent. Under such circumstances the court is of the conclusion that it is just and equitableto exercise its discretion to give leave for the Applicant to be paid periodical payments forthe whole of his sick leave of 31 months and 22 days in accordance with section 10 of ECO, and the court so orders. 30.The Applicant had no work and income during the sick leave. The amount payable under this head is therefore fourth fifths of $5,958.33 times 31 months and 22 days which makes $151,262.13 Medical Expenses 31.The Respondent agrees at the outset of the trial to pay the $200 medical expenses claimed by the Applicant. Total Compensation Entitlement 32.The total amount of compensation the Application is entitled to under sections 9, 10 and 10A is:
Compensation To Be Paid 33.The court has already found that the Respondent had paid $175,054.35 to the Applicant with the intention that the money was meant to be periodical payments and advancement of compensation. The Respondent admits that he had only informed the parents of the Applicant and had not talked to the Applicant personally about it. 34.The parents had obviously collected the money on behalf of the Applicant, understanding fully what the Respondent had told them about the nature of the payment. The evidence of the Respondent which is accepted by the court is that he had tried to get in touch with the Applicant and had even tried to do so through the parents, but was unsuccessful. The parents had been authorised to collect the money on behalf of the Applicant and it must follow that telling them the nature of the payment constituted sufficient notice for the Applicant. The Respondent had paid the money to help the Applicant and his family financially and there was no need to have the Applicant’s agreement to it because it was not an agreement but a manifestation of the intention of the Respondent, and no prejudice would be occasioned to the Applicant because he would still be getting full compensation under the ECO. 35.The money paid was not only periodical payments but also included advancement of compensation in the amounts of:
36.The periodical payments had already been paid and the advancement of compensation is to be deducted from the compensation payable under the ECO. The amount of compensation remains outstanding and to be paid is:
Interests 37.There shall be interests on this amount from the date of accident at half judgment rate until date of judgment and thereafter at judgment rate until payment. Costs 38.The Applicant succeeds in his application for leave to extend the length of period of the periodical payments and in his claims of medical expenses but fails in his appeal against the assessment of the Employees’ Compensation (Ordinary Assessment) Board. The Respondent fails in its contention that the compensation of $175,054.35 paid is sufficient to satisfy the whole claim of the Applicant. The court is of the view that the length of time involved in the trial in determining the respective issues in which the parties have obtained judgment is more or less the same. It is fair that the Applicant and the Respondent each pay their own costs in the trial. The court therefore makes an order nisi that there be no order as to costs in this trial.
Mr MAK Yiu Wah Bilan of Messrs B Mak & Co, assigned by the Director of Legal Aid, for the Applicant Mr TSANG Kwok Fun of Messrs Dickie TSANG & Co for the Respondent |
Cases cited in this judgment
Further hearings and rulings under DCEC 770/2004