Chan Kam Sau v. Yee Hing Construction Transportation Co Ltd
Read the full judgment text of DCEC 1361/2005 on BabelCite. This District Court judgment.
1. The Applicant made an application on 15 November 2005 under the Employees’ Compensation Ordinance (the Ordinance) for the following relief:
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DCEC 1361/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 1361 OF 2005 -------------------- IN THE MATTER OF AN APPLICATION BETWEEN:
-------------------- Coram : Deputy Judge C.P. Pang in Chambers Dates of Hearing : 21st & 23rd November 2006 Date of Handing down Judgment : 19th January 2007
JUDGMENT _________________ 1.The Applicant made an application on 15 November 2005 under the Employees’ Compensation Ordinance (the Ordinance) for the following relief:
2.At the hearing, Mr. John Wright, Counsel for the Respondent, tells me that the Respondent is also appealing against the Certificate. He submits to the court a “Respondent’s Notice of Appeal Against the Certificate” purportedly filed in court on 20 November 2006, one day before trial. The appeal is made out of time. The Applicant has no objection to the application and I give leave to hear the cross appeal against the Certificate. I have subsequently confirmed that the Respondent’s Notice of Appeal has not actually been filed. However since the Notice of Appeal has been submitted in court and there is no objection from the Applicant to the cross appeal, I would treat the Notice of Appeal submitted in court as a proper notice and the statutory requirements under s.18 are deemed to be satisfied. 3.Liability in the case is not disputed. The only issue in this application and appeal is quantum. Background 4.On 27 December 2003, whilst in the course of his employment by the Respondent, the Applicant drove his employer’s truck which collided with a public bus. As a result of the collision, the Applicant suffered injuries to his head, pelvic area and the right leg. He was given sick leave for 19 months and 5 days. The Applicant was born on 12 May 1954 and was aged 49 at the date of the accident. 5.The Applicant made this application on 15 November 2005 when the Certificate was not yet issued. In fact the assessment by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) only took place on 29 March 2006 and the Certificate was issued on 12 April 2006. 6.The Certificate assessed the Applicant’s loss of earning capacity permanently caused by the injury for “multiple injuries resulting in (i) right thigh and bilateral knee residual pain; and (ii) mental symptoms” at 36%. The breakdown of the assessment was confirmed by the Commissioner for Labour by way of a subsequent letter to the Respondent’s solicitor dated 17 November 2006 as: 3% (O &T) + 33% (Psy) = Total 36% 7.The Certificate also certified the period of absence from duty necessary as a result of the injury as: 27/12/2003 to 31/7/2005. 8.There was no application for review of the Certificate by both parties. 9.The Applicant appointed his own medical experts for examination, namely, Dr. Arthur Chiang, an orthopaedist, and Dr. Chung See Yuen, a psychiatrist. 10.Dr. Chiang assessed the Applicant’s percentage loss of earning capacity as arising from the physical aspect of the sprain injury of the back and right knee to be about 5%. 11.Dr. Chung assessed the Applicant’s loss of earning capacity, due to adjustment disorder with anxiety, at 3%. 12.During re-examination in witness box, the Applicant withdraws his appeal against the Certificate and he wants to rely on the assessment in the Certificate. However since the Respondent has filed notice to appeal, the hearing for the appeal against the Certificate is still on foot. The Applicant’s case 13.The Applicant says in his witness statement which is adopted as his evidence that at the time of the accident he was driving his employer’s cement truck. He heard a sudden loud bang coming out from the back of his truck. His truck was then pushed forward by the bus behind. His whole body was thrown forward. He was still conscious when the ambulance arrived. He was treated and discharged from the hospital on the same day. He was given some medicine to kill the pain. Despite the treatment, there was still pain in his pelvic area. He returned for out-patient treatment on 29 December 2003 and stayed in hospital for 2 nights. Later he received physiotherapy and psychiatric treatment as advised. 14.It is the evidence of the Applicant in court that, his lower back, his right thigh and knee, and pelvis are still hurting occasionally. When he is squatting, he needs to hold on something for support in order to stand up. 15.He still fears speed and he is scared when he is on a vehicle and crossing the road. He is still scared of driving. He also fears noise. He is still receiving psychiatric treatment. The psychiatrist says he is not yet in a stable condition. He can now sleep 4-5 hours a day. He still needs to take anti-depression drugs and sleeping pills. 16.He was given sick leave with certificates to cover the whole period from date of accident up to 31 July 2005. Though he cannot now produce sick leave certificates issued by government doctors for two periods of time (27/7/2004 – 22/8/2004 and 15/10/2004 – 24/11/2004), he believes that the certificates have been given to the Respondent for payment of his 4/5th salaries. He has in fact received payment of his 4/5th salaries for the whole period of sick leave until 31 July 2005 (total 582 days). He has received a total of $202,460 from the Respondent. He has incurred $1,240 medical expenses. 17.He resumed working as a security guard in about August 2005 after the sick leave period granted to him. Then he changed to take up delivery job. Since about June 2006, he has worked in the Construction and Industry Training Authority responsible for registration of workers. His present salary is $6,000 a month. The Respondent’s case 18.Ms. Lam Kiu says she is responsible for calculating wages of workers of the Respondent. The Applicant was employed as a truck driver on a casual and long term basis at the time of accident. At the time of accident, the Applicant had only started work for the Respondent about 6 weeks since 11 November 2003 with no written employment contract. Between 11 and 30 November 2003, the Applicant was only required to work 4 days so he was paid $2,000 for November. In December 2003, he worked 23 days up to the date of the accident, and he was paid $12,510 for December 2003. 19.In fact the Applicant’s salary of $12,510 for December 2003 was unusually high because of an unexpected higher demand of concrete for that month. For the period from April 2003 to December 2003, the Respondent’s wage records show that the average monthly salary of the drivers employed by the Respondent in the same capacity as the Applicant ranged from $7,800 to $10,400 per month. In respect of the two periods of time which are not covered by sick leave certificates, the Applicant explained that he had forgot to ask doctors to issue. However she confirms that 4/5th salary has been given to the Applicant for these two periods of time. The issues 20.There are 3 issues in this case:
The Medical Evidence 21.There are in essence 2 sets of assessments:
22.There are also reports from government doctors and psychologist. 23.Mr. Tso, solicitor for the Applicant relying on Tang Shau Tsan v Wealthy Construction Co. Ltd., CACV 58 of 2000, argues that statement of opinion from doctors in relation to earning capacity are inadmissible. The only evidence that the court can consider is that of the Certificate. 24.Mr. John Wright, Counsel for the Respondent, contends that this argument is wrong. He submits that Tang Shau Tsan was an appeal against the assessment of damages in a common law personal injury claim and has no application to an employees compensation claim. 25.In Tang Shau Tsan, Rogers VP says:
Though Tang Shau Tsan was an appeal against the assessment of damages in a personal injury claim, I find the guidance of Rogers VP also relevant in employees compensation claim (see also Woo Wai Kuen v Li Siu Keung, Alex trading as Alex’s Kitchen DCEC 489/2000, Judge Lok, unreported, and Law Siu See v De Rodeo Human Resources Ltd, DCEC 989/2001, unreported). 26.On the other hand, I cannot agree with Mr. Tso that the opinions of Dr. Chiang and Dr. Chung in their reports as a whole cannot be considered by the court. Otherwise, s.18A, allowing the court to call upon any person to give evidence by virtue of his expert knowledge would be otiose. 27.In my judgment, the court can consider their opinions as experts but it has to come to its own assessment in accordance with the Ordinance. 28.The difficulty in this case is that the psychiatric and physical injury of the Applicant are not listed in Schedule 1. And there is no similar injury in the Schedule and the Note thereto for the court to consider and compare with. 29.The biggest controversy in the medical evidence is in the psychiatric assessments. The psychiatric injury 30.The Certificate, save that it refers to the injuries being assessed, does not provide for the reasons for the assessment. I cannot know the reasons why the Board made such assessment. Presumably, the Board has considered all the reports of the Applicant including the reports of the treating government doctors and hospitals and has seen the Applicant for assessment purpose. 33% loss of earning capacity is a high percentage. 31.The medical evidence in favour of the Applicant, as Mr. Tso summarized, are:
32.The starting point I take is to look at the report of the treating psychologist, Ms. Ide Chan, who first saw the Applicant on 3 May 2004. In her report dated 5 September 2005 she says (bundle C 9 para. 4 and 5)
33.Dr. Chung Wai Sau Dicky of the Department of Psychiatry, AHNH, says in his report dated 7 July 2006 that he first saw the Applicant on 13 April 2005. His diagnosis for the Applicant is PTSD. The Applicant showed eagerness to resume working, however he had no confidence to drive again. Dr. Chung Wai Sau put the Applicant on low dose sedative and antidepressant drug in order to help his sleep and fearfulness. The Applicant had shown some improvement in terms of these complaints in the subsequent follow-up. On the whole, his mental condition has improved. In the last consultation on 26 April 2006, the Applicant still complained of excessive vigilance in public areas with easy startle response. However this did not lead the Applicant to any avoidance from going out of home. He could sleep 4-5 hours a night. There was no pathological depressive symptom. The present degree of impairment is mild. The prognosis is favourable. 34.Dr. Chung See Yuen, the Applicant’s own psychiatric expert, diagnoses the Applicant of adjustment disorder with anxiety (C47 para. 25). For my part, I do not think the difference in diagnosis a material discrepancy as the objective findings of all the doctors are not materially different. 35.Dr. Chung first saw the Applicant on 3 August 2006 on the instruction of the Applicant’s solicitor assigned by the Director of Legal Aid. Dr. Chung has reviewed all the reports of the Applicant’s attending doctors, psychologists and physiotherapists. 36.When Dr. Chung saw the Applicant, the Applicant still complained that he had pains over various parts of his body. He was sensitive to noises and was anxious when a car ran fast. The Applicant said he believed he could not drive because he did not have the confidence and he could only drive a car slowly. He was afraid of muscle cramp, his judgment and response were slow. He attempted to drive a van with a friend sitting beside him in December 2005. He was very anxious during the 10-minute drive. He was fearful when the car was going down a slope. 37.Dr. Chung says in his report dated 11 August 2006 at para. 25 that he believes the Applicant has suffered from adjustment disorder with anxiety. The mental disorder is characterized by the development of emotional or behavioural symptoms in response to identifiable stressors. Dr. Chung further says in the report at para. 28 “The mental condition has shown improvement with time and after treatment. He is displaying mild residual symptoms of the disorder currently”. 38.At para. 29 Dr. Chung says,
39.At par 30 and 31 of his report (C49), Dr. Chung states his opinion:
40.Dr. Chung See Yuen estimates the loss of earning capacity, due to adjustment disorder with anxiety, at 3%. 41.I have considered the evidence of the Applicant, in particular, his complaint of fear in driving. Viewed with all the medical evidence in the case, I have reservation of his evidence in respect of the extent of his fear in driving. 42.Dr. Chung See Yuen has given detailed and reasoned opinions in his report. I find his report most useful and reliable. Having considered all the evidence, I would accept all the opinion of Dr. Chung except his percentage assessment of loss of earning capacity, which is for the court to decide. 43.In my assessment I accept that the Applicant has suffered from mental disorder, be it PTSD or adjustment disorder with anxiety, which is an injury as a result of the accident. The injury is not specified in the First Schedule of the Ordinance. The court has to consider section 9 in assessing the percentage loss of earning capacity. 44.Both parties have not suggested to the court to adopt the Hong Kong Paper Mill formula as corrected in Lui Kwong Yan or to apply s.9(1A). And I cannot find any special circumstances of the Applicant in the case. I also think that the Hong Kong Paper Mill formula is not appropriate if the Applicant is capable to return but has not returned to his pre-accident job as in such case the loss of earning capacity would be 0%. This cannot fairly represent the Applicant’s situation. Under s.9(4), the court may but is not obliged to give weight only to the earnings of the employee. Other factors can be considered. The court’s assessment 45.The Applicant has no hallucinations and delusions. He can express his ideas and feelings both in the examination by Dr. Chung and in court. Even though the Applicant might have fear in driving, Dr. Chung’s opinion, which I accept, is that the mental problems by themselves should not have prevented him from returning to his driving job because the anxiety is a treatable condition. 46.Dr. Chung believes and I accept that the Applicant will be able to overcome the anxiety about driving if he is motivated. Moreover his lack of confidence and anxiety about driving would be helped by receiving a course provided by a driving instructor. 47.I have also considered that the Applicant was able to take up employment as a security guard very soon after the sick leave with medical certificates. Thereafter he also took up a kind of delivery job before he changed to his present job. He has not been given sick leave by his attending psychiatrist. 48.I find that the Applicant is capable of returning to his previous driving job. What he needs is confidence. Driving course and further psychiatric treatment will help him to overcome the problem. He will certainly be able to return to driving job after the training course and treatment. 49.For these reasons, I can only find a very least degree of loss of earning capacity. On the bases of all the medical evidence before the court and the reasons I have given, I find that the 33% of loss of earning capacity in the Certificate, in so far as psychiatric aspect is concerned, was made without basis and illogical. 50.Giving allowance that the Applicant can only return to driving job after some time and he may have anxiety and less confidence than before in driving, I would assess the Applicant’s loss of earning capacity due to the adjustment disorder with anxiety at 3%. The physical injury 51.In so far as the orthopaedic aspect is concerned, again the Certificate provides no reason for the assessment at 3%. Dr. Chiang assessed at 5%. The injury is un-scheduled. Again it is for the court to make the assessment as best as it can. 52.Dr. Chiang, orthopaedic expert for the Applicant, has found only evidence of soft tissue injuries but x-rays and MRI scan have revealed no significant pathology (C22 to 34). In his report dated 15 July 2006, Dr. Chiang says at para. 15 that
53.I accept that the Applicant still suffers residual pain in his right knee, thigh and lower back. He needs some support to stand up from a full squat. I accept his complaints in respect of the orthopaedic aspect, which is supported by the reports of his attending orthopaedist and Dr. Chiang, both of them having no material difference in their opinions. I accept that the Applicant can return to his pre-injury job, with mild reduction in efficiency. I would agree with the assessment of Dr. Chiang and assess the Applicant’s percentage loss of earning capacity caused by this injury at 5%. 54.The aggregate of the physical and mental injuries would be 8%. The Monthly earning 55.The Applicant says in his witness statement that he became employed by the Respondent since in or around November 2002. He left the Respondent between March 2003 and November 2003. In court, he says he was re-employed by the Respondent on or about 1 December 2003. The Respondent says the Applicant was re-employed on 11 November 2003. I find the date of re-employment immaterial because the Applicant is relying on his income earned for December 2003. In that month, he only worked for 23 days up to the date of the accident and he was paid $12,510 as admitted by the Respondent. 56.Mr. Wright, correcting his written submission, submits in court that, in view of the short employment, the monthly earning for the purpose of calculating the compensation falls under s.11(2) and reference has to be made to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person at the same work employed by the Respondent. 57.As the Respondent has provided the average monthly salary of drivers employed by the Respondent in the same capacity of the Applicant for the eight months prior to the accident, the court should adopt the average earnings of $9,100 per month, the median between $7,800 and $10,400. Mr. Wright submits that it would be unfair for the Respondent if the monthly earning is calculated according to the Applicant’s earning in December 2003, which was unusually high because of an unexpected higher demand of work for drivers. 58.I cannot agree with this argument. 59.s.11 provides:
60.In my view, s.11 is designed to give a calculation of monthly earnings in favour of the employee. The Applicant is entitled to elect the method of calculation provided under s.11(1)(a) or (b), which is more favourable to him. 61.There is no dispute that he earned $12,510 in December 2003. Although his employment is short, it is not impracticable to compute the rate of remuneration of the Applicant at the date of the accident. There is no difficulty to apply the calculation under s.11(1)(a) which should be adopted as the basis for calculating the Applicant’s monthly earnings, i.e. $12,510. Necessary Period of Absence 62.The real argument of the parties is on statutory interpretation of s.10(2), which provides:
63.Mr. Tso, relying on Choy Wai Chung v Chun Wo Construction and Engineering Co. Ltd., CACV 14/2000, contends that the appropriate period is that covered by the Certificate. It appears that his argument is that s.10(2) is irrebuttable. 64.Mr. Wright, relying on a decision of the District Court, Ali Shoukat v Hang Seng Bank Ltd, DCEC 69/2002, contends that the deeming section only raises a rebuttable presumption which can be rebutted by the medical evidence in this case. In Ali Shoukat, H.H. Wong finds that the deeming provision in s.10(2) is rebuttable. 65.The purpose of Mr. Tso in citing Choy Wai Chung is unclear. If he is suggesting that the Court of Appeal says in that case that the deeming provision in s.10(2) is not rebuttable, then the argument is misconceived. Rogers VP stated in the case:
66.While the Court of Appeals said that s.10(2) is of mandatory effect and that compensation under the Ordinance is based in a number of respects on a different premise and the method of calculation is laid down in the Ordinance, the Court of Appeal did not say that the section provided an irrebuttable presumption. The issue in that case is on s.10(5). The appeal was allowed because of the limitation which the trial judge imposed upon the discretion conferred by s.10(5), which was considered as a fetter on discretion not to be found either expressly or by necessary implication in that section. 67.In 關儉庭及陳細良 經營細記油漆工程v.泰利恆工程有限公司, 僱員補償援助基金管理局 DCEC1095/2000, Deputy District Judge Ng (as she then was) held:
68.In Chu Wai Ling v. Hoyin Construction Limited and Marshall-Karson Construction & Engineers LimitedDCEC 834/2004, His Honour Judge Chow held:
69.In Yu Cheung Yim v. Lucky Friend Industrial Ltd.DCEC No. 160/1995 and Lai King Wai v. Kwai Chuen Container Service Company Limited DCEC No. 805/2002, both judges concluded that in the context of the ECO, in the absence of proof of fraud, the legislature intended the deeming provisions in s.10(2) to be a conclusive presumption. 70.Having reviewed the cases, I find that the deeming provision in s.10(2) is rebuttable. Otherwise, the court’s discretion will be unreasonably fettered and the court will not be able to “confirm or reverse” the Certificate under s.18. Is the presumption rebutted? 71.The Certificate certifies the necessary period of absence from duty as from 27 December 2003 to 31 July 2005 (a total of 582 days). During this period, two intervals are not supported by evidence of medical certificates. The Applicant says the whole period is covered by medical certificates which have been given to the Respondent. The Respondent denies. 72.The dispute of fact is not important for compensation because of the mandatory way of calculation of compensation under s.10(2) and (3). 73.For the sake of completeness, I would make a finding of fact as to whether the two periods are covered by medical certificates. 74.There is no dispute that 4/5th salaries were paid to the Applicant by the Respondent for the whole period of absence. There has been no challenge or repeated demands by the Respondent for the certificates before the hearing. I would draw the inference that the whole period is covered by medical certificates for sick leave. 75.There is no reason provided in the Certificate for the period of necessary absence from duty. 76.For the reasons that I have given for the percentage assessment, I accept the opinion of Dr. Chung that the Applicant could have returned to some gainful employment after 12 months from the accident from a psychiatric point of view. 77.However, the sick leave certificates are issued by the Applicant’s attending orthopaedists who have seen and examined the Applicant before the issue of the sick leave certificates. There is no reason for me to assume that the doctors would have taken into account the psychiatric problem which is not within their ambit of expertise in recommending the sick leave. I would find that the government doctors who presumably issued the sick leave certificates professionally, are the best persons to decide whether the Applicant was suitable for work. These certificates must have been seen and considered by the Board. I find that the sick leave was recommended for the Applicant’s orthopaedic injury. In the absence of evidence of fraud, heavy weight must be attached to the sick leave certificates. 78.On the other hand, even in the opinion of Dr. Chiang, the sick leave appears to be prolonged. However Dr. Chiang also opines that the psychological and psychiatric treatment together with the orthopaedic treatment might account for the long sick leave. Dr. Chiang’s opinion does not exclude the possibility of the whole period being reasonable. Therefore I do not find the opinion of Dr. Chiang inconsistent with the sick leave certificate. 79.On the balance, I find that the presumption in s.10(2) not rebutted. 80.I would therefore allow the appeal by the Respondent against the Certificate only to the extent of the percentage assessment of loss of earning capacity of the Applicant as I assessed. 81.A further issue arises which has not been argued by the parties. 82.Under s.11 (1A)(a), the monthly earning of an employee, in respect of the temporary incapacity beyond the 12-month period after the accident, should be computed by reference to, in the case of the Respondent which has employed other persons in similar employment, the earnings of other employees of similar earning capacity to the Applicant, in accordance with “the average rate of increase” (emphasis added). By way of statutory construction, the section does not allow any decrease of monthly earnings. However there is no evidence of the earnings of other drivers in the Respondent 12 months after the accident. There is also no evidence of the Consumer Price Index. There is no evidence that the monthly earning of the Applicant would be increased or decreased after 12 months. Since the section does not allow decrease in the monthly earnings for the purpose of calculation, I would adopt $12,150 for the whole period of temporary incapacity. 83.The application for extension of entitlement to periodical payment under s.10(5) needs not be dealt with as the periodical payment needs not be paid for more than 24 months. Conclusion Calculation of compensation under s.9 84.Mr. Tso’s calculation by reference to 96 months’ earnings is wrong. 85.The Applicant was aged 49 at the time of the accident, the correct basis for calculation is by reference to 72 months’ earnings in accordance with s.7(1)(b). 86.The compensation under s.9 would be:
Calculation of compensation under s.10 87.The compensation under s.10 would be:
Calculation of compensation under s.10A for medical expenses 88.These are agreed at $1,240. The Result 89.The Applicant should give credit in the sum of $202,460 already received. 90.The Applicant is therefore entitled to a compensation for:
91.I therefore enter judgment for the Applicant against the Respondent in the sum of $55,064. There is no dispute that the Applicant should be entitled to interest from accident at half of judgment rate. I therefore order the award of $55,064 to carry interest at half judgment rate from the date of accident up to date of judgment. Costs 92.The Applicant succeeds in obtaining an award against the Respondent. The normal rule is costs to follow the event. However there are special circumstances in this case. 93.The Applicant made the applications for compensations and appeal against the Certificate on 15 November 2005 when the Certificate had not yet been issued and was not in existence. There was nothing to be appealed when the appeal was made. The appeal against the Certificate when it was made was therefore invalid. After the Certificate was issued, the Applicant filed a notice of appeal against the Certificate on 28 July 2006. 94.The practice of appealing against the Certificate before it is issued has been disapproved by H.H. Judge Marlene Ng in the Practice Note of the judgment in Lam Pui Yi Anita v Secretary For Justice, DCEC 844/2001, dated 18 August 2005, unreported. 95.The Applicant upon receiving the medical report of his own psychiatric expert, Dr. Chung, should know that his appeal against the Certificate is not supported by his own evidence. However he still pursued the appeal. 96.The Applicant only withdrew the appeal against the Certificate when he was re-examined by his lawyer. Ironically, Mr. Tso then asked the court to accept the Certificate as the basis of the assessment of compensation. The Applicant should therefore pay the costs of the appeal up to the time of the withdrawal of his appeal in court. 97.The cross appeal against the Certificate was still in foot. The Respondent at the end successfully challenged the percentage assessment of loss of earning capacity. The Applicant askes for compensation under s.9 in the sum of $432,345.60, as submitted by Mr. Tso. The final award under this head is only $69,984. The Respondent has substantially won in the appeal against the Certificate which was initiated by the Applicant and resisted the application for compensation. 98.Though it can be said that the Applicant also succeeds in the application for compensation as a whole, the time in the hearing is mostly spent in the arguments in respect of the Certificate. Had the Applicant not appealed against the Certificate, it may be that his compensation would have been assessed by the Commissioner for Labour on the basis of the Certificate and it is possible that the Respondent might have agreed to pay the compensation assessed. The whole proceedings would have been unnecessary. 99.In the special circumstances, I would order the Applicant to pay half of the Respondent’s costs in defending the action and making the cross appeal against the Certificate, including costs of the hearing, to be taxed if not agreed. 100.The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations. I also order Certificate for Counsel. 101.The costs order is an order nisi to be made absolute after 14 days of the handing down of this judgment.
Representation: Mr. A. Tso of Messrs Fan Wong & Tso, for the Applicant. Mr. John Wright, instructed by Messrs S.Y. Chu & Co, for the Respondent. |
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