Mak Lok Wing v. Rembo Towing Supplies Services Ltd

DCEC 350/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 350 OF 2002

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IN THE MATTER OF AN APPLICATION BETWEEN:

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Coram : Deputy District Judge W. C. Li in Court

Date of Trial : 15^th September 2006

Date of Handing down Judgment : 20^th September 2006

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JUDGMENT

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1.By an Order dated 6 May 2003, the Applicant was given judgment against the Respondent on liability.  The trial today was to assess the amount of employees' compensation payable by the Respondent to the Applicant.  The Respondent was absent for the trial.

2.The Applicant was employed by the Respondent as a tow truck driver providing towing services on 24 hours basis.  He worked 24 hours and then had 24 hours off.  So, in a month, he worked 15 days.  On each working day, he towed an average of 7 vehicles and each tow had a minimum charge of $200.  Half of that income went to his employer and he had to pay $200 on petrol.  His wage would therefore be $500 on each working day and with 15 working days a month, his income per month was therefore $7,500.

3.The Appellant was aged 26 at the time of the accident in 2000.  The Multiplier for a young man of his age was allowed at 8 years or 96 months.

4.The Employees' Compensation (Ordinary Assessment) Board assessed the Applicant ‘s loss of earning capacity due to the injury received from the traffic accident to be 2%, and on appeal, the assessment was reviewed and allowed at 4%.

5.The Applicant was suffering from Gout and Goutic Arthritis when the accident occurred. His gout and Arthritis worsened over the years.  The injuries from the traffic accident resulted in swelling over the Applicant's left knee and left ankle.  There were other complaints over his right hand, right lower leg, right shoulder, back and neck.  These injuries did not result in fracture or appeared to be serious but the condition of his left knee and left ankle were more serious than the other complaints.  He did not go the hospital immediately following the accident.  It was some 5 hours later that he became unwell and was admitted into Precious Blood Hospital where he was attended to by Dr. Timothy Teoh.  Sick leaves were granted by Dr. Timothy Teoh of Precious Blood Hospital from 2/5/2000 to 31/5/2000, by Dr. Tsang Kuen Pong from 6/6/2000 to 24/6/2000, and by Dr. Chui Tin Pui from 30/6/2000 to 6/7/2000.  The total sick leave days was allowed at 56 days.  These sick leaves were directly related to the traffic accident injuries.

6.The pre-existing condition of the Applicant, that is, he suffered from gout and goutic arthritis, seemed to have made his left knee and left ankle injuries worse.  His doctor opined that the gout could make his injuries worse due to the arthritis.  This seemed to be one of the reasons why his appeal for loss of earning capacity was allowed at 4% instead of 2%.  In making this assessment, extra caution had been taken to distinguish which part of his sick leaves and what medical expenses were related to the traffic accident injuries and which were not and were related to his gout and arthritis. Counsel for the Applicant had forgone the parts of the application relating to sick leave and medical expenses that were more likely related to the Applicant's gout than to the traffic accident injuries.

7.The medical expenses relating to the traffic accident injuries were the fees for outpatient treatment on 2/5/2000 at Precious Blood Hospital ($140), the charges for the period of his hospitalization at Precious Blood Hospital from 2/5/2000 to 31/5/2000 ($6,616), the doctors' consultation fees of $3,730 during his hospitalization in Precious Blood Hospital, the $44 physiotherapy treatment which was the only physiotherapy he had undergone, and the $1,700 consultation fees he spent on having treatment from a Chinese medical practitioner, Mr. Loon Chuen Hang, in May 2000, i.e. after the traffic accident.  The total amount of these treatments is $12,230.  The other items of claim under this head were not further pursued because those involved treatment of his gout condition.

8.Under Section 9 of Employees' Compensation Ordinance, the compensation is assessed as follows:

HK$7,500 x  96 months  x  4%  =  $28,800.

Under section 10 of the said Ordinance, the compensation is assessed as follows:

HK$7,500  x  4/5  x 56/30 months = $11,200

Under Section 10A  of the said Ordinance, the compensation is assessed as particularized in Par. 7 above, at $12,230.

Therefore the total amount of employees' compensation would be

$28,800 + $11,200  +  $12,230  =  HK$52,230.

9.I therefore enter judgment against the Respondent for the Applicant in the sum of $52,230.

10.Interest at half judgment rate from the date of Writ, i.e. 26 April 2002, to the date of judgment, and at full judgment rate from the date of judgment to the date of full payment of the judgment sum to the Applicant is also ordered to be paid by the Respondent to the Applicant.

11.I also order the Respondent to pay the Applicant's cost of this action to be taxed if not agreed, with certificate for counsel.  This Cost Order is an Order Nisi to be made absolute in 14 days.

Representation:

Mr. Timon K. L. Shum instructed by Messrs. Huen & Partners for the Applicant.

The Respondent not legally represented and being absent from the trial.