Wong Kim Fung v. Leung Wai Sun t/a Wai Kan Transportation Co

DCEC 122/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 122 OF 2003

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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 : 13^th November 2006

Date of Handing Down Judgment : 17^th November 2006

JUDGMENT

1.The issue of liability was tried before H.H. Judge Wong at the District Court and judgment was entered in favour of the Applicant as against the Respondent on 27^th September 2004. The trial today was to assess the quantum of compensation payable by the Respondent to the Applicant.

2.The Applicant had worked for the Respondent for only 12 days as a container lorry driver when he met an accident in mainland China and suffered injury with both his legs broken in the accident. During these 12 days, he had an irregular working pattern and during which period he had worked only on 6 occasions. No List of Earnings was filed by the Respondent. He denied that the Applicant was his employee and he said he had never paid any salary to the Applicant at the material times. It was true that no wages had been paid to the Applicant yet as he had only worked 12 days. The Applicant had kept a record of the gross incomes for these 6 days’ work and the Respondent agreed with the Applicant’s case that 27% of the income from the Applicant’s work were payable to the Applicant as his wages. The Applicant and the Respondent disagreed on whether the 27% payable as wages should be payable out of the gross income or out of the net income, i.e. after deduction of petrol, road toll charges etc. Invoices were issued by the Respondent company, referred to as Drayage Receipts, and together with the Applicant’s own record of work, the gross income came up to a total of HK$12,000 and RMB24,500, and these were the figures on which the Applicant based his calculations. The figures were not challenged by the Respondent in cross-examination. The exchange rate for RMB at the time was 0.944 to the HK dollar. The total income for those 12 days of work would come up to HK$35,128.00. I would agree with the Applicant’s case that 26 working days be adopted for a working month. So, the total income for a month would come up to  ($35,128 / 12 X 26) $76,110.00. Having considered their arguments, I would find in the Applicant’s favour that the 27% of his entitlement was based on the gross income, and not the net income. The costs of petrol, toll fees and other outgoings would be quite high and that would leave the Applicant with considerably a much lesser income. Considering the nature of the work and the long distance involved, I do not think 27% of the net income would be enough to reward and encourage drivers to take up this job. I do not think it was reasonable in the circumstances that the 27% calculation was based on net income. Having resolved this, I therefore conclude that the Applicant’s monthly income was 27% of $76,110 and that would be $20,550.

3.The Medical Assessment Board assessed the Applicant to have suffered a 3% loss of earning capacity. The Applicant appealed against that assessment. Dr. Chan Kwok Bill, the Medical Officer of the Department of Orthopaedics and Traumatology, North District Hospital, in his statement/declaration stated that the Applicant after 1 year and 4 months of treatment and intensive physiotherapy, had all fractures in his legs healed fully, but the range of motion of the Applicant’s right ankle was still diminished. Hence the Applicant was referred to the Medical Assessment Board to assess his degree of permanent disability, if any. 

4.The Applicant was further examined by Dr. Johnson C.K. Lam, Specialist in Orthopaedics and Traumatology in April 2006 at the request of his solicitors and Dr. Lam, having taken into consideration of all factors particularly the injury to the Applicant’s right leg and the right ankle, assessed the Applicant to have suffered an 18% loss of earning capacity. On physical examination, Dr. Lam found this: “Mr. Wong walked into my clinic with normal gait. His general conditions appeared satisfactory. He could walk on tip toe or on heels. He has difficulty in squatting down due to decrease right ankle dorsiflexion. There were multiple scars over both legs especially over the right leg. There was atrophy of the right leg muscle compared with the left”. In this examination, Dr. Lam was informed by the Applicant that he had pain in his right leg with activities like prolonged control of foot pedal, prolonged walking, and he could not run because of right leg and ankle pain. Dr. Lam in his medical opinion had these to say: “10. For the sake of Employees’ Compensation, in the assessment of the amount of loss of earning capacity, reference should be made to the Employees’ Compensation Ordinance (“ECO”). With reference to the Ordinance, ankylosis of the ankle in the optimum position should carry 15% loss of earning capacity, while ankylosis in the worst position should carry 25% loss of earning capacity. With reference to the Ordinance, loss of leg (lower limb) at hip carries 80% loss of earning capacity while a similar loss of lower limb carries 40% permanent impairment according to the guides.  11. In Mr. Wong’s case, for the right leg, besides stiffness in ankle, there was also stiffness of the foot; wasting and weakness; sensory impairment, union of tibia in valgus, and residual scarring and pain. Mr. Wong’s right leg injury should carry 18% loss of earning capacity.  12.  For the left leg, this should not carry any loss of earning capacity.”  On examination, Dr. Lam found the range of motion of right ankle was 5 degrees for Dorsiflexion and 20 degrees for plantar flexion, as compared to 15 degrees Dorsiflexion and 40 degrees Plantar flexion for the left ankle of the Applicant. If the guidelines in the ECO say optimum ankylosis should be 15% and ankylosis in the worst position carries 25% loss of earning capacity, then Dr. Lam must be saying the Applicant’s case was between the optimum ankylosis and the worst ankylosis. He gave the reason that “besides stiffness in ankle, there was stiffness in foot, wasting and weakness, sensory impairment, union of tibia in valgus, and residual scarring and pain” and he opined that the Applicant’s right leg injury should carry 18% loss of earning capacity. This is an assessment that had taken into full consideration of the diminished range of movement, stiffness, the pain and discomfort especially after prolonged driving and walking, the wasting and weakness, and the sensory impairment of the right ankle, and concluded that the disability should be 18% instead of 3 % awarded by the Medical Board. I would favour Dr. Lam’s assessment on the 18% and accept that the Applicant had suffered 18% loss of earning capacity.

5.The Applicant testified that he resumed work as a driver after his sick leaves were over. He only applied for jobs to drive LGV (light goods vehicles) and when he disclosed that he was on medical sick leave following a traffic accident, no employer was interested to employ him. He testified that he then obtained a taxi driver licence and made a living driving a taxi in September 2004. He quit because he could only made $5,000 to $6,000 a month after expenses. He then became a tourist bus driver and at the time of trial, he worked for Trade Tour (HK) Limited earning approximately $12,000 a month. The Applicant testified that he was no longer able to resume driving cross-border container lorries because of the injury to his right ankle. He said the work of a tourist bus driver gave him time to have breaks for rest in between and he would not be able to withstand the long hours of driving container lorries. He also said the brakes of a tourist bus was computer-controlled and he could operate the brake effectively at a touch. He further said he would have to climb up to the container lorry and pick up heavy objects if he were to drive a container lorry and his right ankle would give him difficulty doing this. He believed his right ankle would not improve in the future. The Applicant asked for loss of earning capacity to be assessed under Sec. 9(1A) b of the Employees Compensation Ordinance, Cap. 282 as he could not return to his pre-accident employment. The Defence asked for assessment on the basis of The Hong Kong Paper Mills formula (Hong Kong Paper Mills Ltd  v  Chan Hin Wu (1981) HKLR 516).

6.The Applicant’s evidence showed that when he resumed work, he could drive different vehicles and he sought to drive PLBs, taxis and tour buses. He passed and obtained a taxi driver licence. I failed to understand how he was able to do the long hours and remain in the same driving position with his right foot on the accelerator and brake pedals of a taxi, or a PLB or a tour bus, and not able to resume his pre-accident work as a container lorry driver. In his statement, he said he had pain in his right ankle which occurred occasionally, this being more serious in wet and cold weather, he suffered numbness and cramp and frequent convulsions on the left side of his right ankle, he had pain on the left side of his right ankle if he had walked for over 30 minutes or if he exercised heavily on it, and if his ankle was kept in one position, then this causes pain and discomfort. He also said that in all these instances, the pain could be quite severe and he tried to avoid lifting anything heavy. My view was that if what the Applicant said were true, he would not be able to drive at all. The right ankle pain, the frequent numbness, cramp and convulsions on the left side of his right ankle, and the pain and discomfort on his right ankle when he remained in one position for a long while, would mean he would not able to work as a driver of any commercial vehicle. The work of a taxi driver, or an LGV driver or a tour bus driver would all require him to work under stress and long hours requiring strength and endurance. The braking systems in a container lorry might be different to a tour bus or a taxi but it is quite an exaggeration for the Applicant to emphasise that the tour bus braking system was computerized and he only need to touch the brake to operate it effectively. Container lorries might be huge vehicles but their braking systems are equally modern using hydraulic brakes that do not require exceptional strength in the foot to operate. On the evidence, I was not convinced that the reason for the Applicant not to resume his pre-accident work as a container lorry driver was his inability to resume this type of work. There are other factors that would weigh on the Applicant’s mind like the different driving conditions and the different degree of risk involved in driving across the Chinese border. It remained a fact that the Applicant was involved in a traffic accident in the mainland only 12 days into the job. The doubt remained whether he was suited to drive across the border where their system and the driving mentality of drivers there are quite different to ours. The Applicant had not driven a container lorry after the accident although, I was quite sure, he could if he had wanted to. I was not convinced that he would not be able to resume his pre-accident work when he had not even attempted to or actually done so and proved that he could not. I should think it was more probable that it was the Applicant’s own choice to drive a taxi or a tour bus in Hong Kong which earned him less but would be less hazardous than driving across the border into Mainland China. It would be a matter of choice that he chose to drive other vehicles in Hong Kong. For this reason, it would be fair to base the assessment on the 18% disability and not on the Hong Kong Paper Mills formula.

7.Under Sec. 9 of the ECO, the compensation is therefore assessed as follows:  $20,550 X 96 months X 18% = $355,104.00.

8.Under Sec. 10 of the ECO, the Applicant had been on sick leave from 8/9/02 to 29/1/04 and that was a total of 508 days. The assessment would be $20,550 over 30 days = $685 X 508 days  X 4/5 = $278,384.00.

9.The Applicant was on CSSA. There is no claim for medical expenses.

10.Judgment is therefore entered for the Applicant against the Respondent in the total sum of HK$633,488.00. Interest at half judgment rate from the date of the accident, i.e. 8^th September 2002, to the date of handing down of this judgment, and interest at judgment rate from the date of handing down 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 costs of this action to be taxed if not agreed. This cost order nisi to be made absolute after 14 days of handing down.

Representation:

Mr. Cleves, Simons of Messrs. Krishnan & Tsang for the Applicant

The Respondent, not legally represented, appeared in person