Ying Yuk Shan v. South China Morning Post Publishers Ltd

LA/ECC/12032/2003 (DF21)

DCEC 479/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 479 OF 2003

______________________

In the matter of an Application between:-

______________________

Coram : Her Honour Judge H.C. Wong in Court

Dates of Hearing : 13-16 August, 2007, 9-10 October 2007, 15 November 2007

Date of Handing Down Judgment : 28 January 2008

JUDGMENT

1.The Applicant is and was employed as a printer at the Respondent’s publishing establishment.  He was promoted to the post of chief printer in or about 1996 or 1997.

2.On 29 July 2002, at around 6:30 to 7:00 p.m., the Applicant was working in the press hall at the South China Morning Post Centre, Tai Po, New Territories (“the post centre”) when he fell onto the floor and sustained serious injury.

3.At the hospital, the Applicant (“Mr. Ying”) was found to suffer from acute cervical spinal card contusion resulting in paraparesis and paraethesia below the 6^th cervical vertebrae with urinary and bowel sphincters dysfunction.  He was hospitalized at Alice Ho Miu Ling Nethorsole Hospital in Tai Po and rehabilitated at the Tai Po Hospital between 29July 2002 and 15 February 2003.  He is now wheelchair bound and requires catheters to help the draining of urine.  He continues to receive out-patient treatments at the Tai Po Hospital regularly.  Since these proceedings commenced, Mr. Ying has returned to work at the Respondent’s post centre as a printer.  Accommodations have been made by the Respondent to help Mr. Ying adjust to the work assigned to him by the Respondent.

4.Mr. Ying claims that he slipped on a piece of cardboard on the floor as he began walking up the staircase of the ‘Geoman’ press machine No. 11.  The Respondent, on the other hand, denied the Applicant had slipped on a piece of cardboard.  It alleged Mr. Ying to have suffered from a pre-existing condition that led to his sudden fall at the press hall of the post centre.

Undisputed Facts

5.Mr. Ying was employed as the morning shift chief printer when the accident happened.  He was responsible for managing 12 printing workers and his hours of work were from 3:00 p.m. to 11:00 p.m.  His duties included going up to the 1^st, 2^nd and 3^rd levels of the printing presses to inspect the printing materials, change printing press plates, feed paper and clean the ink reservoir.  He was required to wear a uniform and safety shoes at work.  On 29 July 2002, printing machine No. 11 was still on trial run and the engineers from the supplier were stationed at the post centre.  At about 6:30 p.m. to 7:00 p.m., printing press machine No. 11 was in the process of the printing of the ‘Young Post’.  Mr. Ying intended to go up to the second level of machine No. 11 to adjust the folder of the machine; as he approached the staircase with his left hand on the handrail, he suddenly fell backwards with his buttock hitting the floor and his whole body fell back onto the floor.  Feeling that he had lost sensation from his chest to his toes, he requested his colleagues to call the ambulance.  At the hospital, the doctor diagnosed that his cervical vertebrae C6/C7 had compressed on the nerves thus causing him to lose all sensation from the chest downwards. 

6.Mr. Ying’s limbs are now weak and he can no longer walk without assistance.  He is wheelchair bound, he can only stand and walk in short steps with the help of a walking frame for a short distance.  His upper limbs are clumsy and weak and he can work with his arms for short periods only.  His fingers are not as agile as before.  Furthermore, Mr. Ying has lost the ability to control his bowel and has to wear a diaper when he goes out and sometimes at home. 

7.Since Mr. Ying returned to work at the Respondent’s printing centre he had to rely on the ‘rehabus’ to pick him up from home at 1:30 p.m. arriving at Tai Po Printing Centre of the Respondent at 2:15 p.m.  He would leave his work place at 10:30 p.m. instead of 11:00 p.m. to fit in with the rehabus schedule.  The Respondent had made special arrangements to accommodate Mr. Ying’s wheelchair access at the entrance of the building and inside the press hall.

Liabilities

8.The application is made under sections 7, 8 and 10 of the Employees’ Compensation Ordinance.  The Respondent disputes liability under s. 5 of the Ordinance.  Under section 5(4)(a) of the Ordinance, the accident is deemed to be arising out of the employment in the absence of evidence to the contrary.

The Issue

The Applicant’s case

9.It is the Applicant’s case that Mr. Ying fell because of a loose piece of cardboard placed in front of the staircase of machine No. 11.  Mr. Ying claimed he saw a loose piece of cardboard on the floor in front of machine No. 11 at around 4:00 to 5:00 p.m. that day.  As it was the practice at the post centre that cleaners would come in from time to time to clean up and pick up discarded rubbish, printing staff including Mr. Ying would leave the work to the cleaners.  At around 6:30 p.m., Mr. Ying found something wrong with the quality of printout at machine No. 11 at folder D; he proceeded to the control room to check the colours against the proof on the left of machine No. 11 (as shown in photo 1).  He then came out of the control room through a door close to the back of machine No. 11 and walked round to the other side of machine No. 11 in order to access the staircase to the second level (see the sketch in exhibit A2).  He approached the staircase with his right foot stepping forward and his left hand holding the handrail when he slipped on a piece of loose cardboard on the floor and fell backwards.  He landed on his buttocks, his back and neck fell onto the floor.

10.Mr. Ying claimed that press machines No. 10 and 11 were on trial run and the supplier’s engineers were present at the press hall conducting tests on machines No. 10 and 11.  In order to stop the ink spilling from the press machine due to the reduced paper size of the ‘Young Post’ during printing on the day of the accident, cardboard papers were put on the floor next to machine No. 11 to soak up the spilt ink from the machine.  Sometimes, a piece of cardboard would be put at the base of the ladder for staff and technicians coming down from the second level to wipe their feet on.  Mr. Ying believed that he had slipped on such a piece of cardboard on the floor.

The Respondent’s Case

11.The Respondent adduced evidence from Mr. Lee Ah-tak who is a colleague of Mr. Ying.  He worked as a printer in the production department.  His duty was to monitor by computer control the automatic printing machines at the post centre.  He agreed there were 11 automatic printing machines on the first floor of the press hall of the centre.  The printing process was fully automatic; the only manual work was the insertion of paper and installing of printing samples.  In order to install printing samples into the machine and perform daily examination of the rollers before the machines began operation and to check for objects between the rollers, the staff had to access the second level of the printing machine. 

12.Mr. Lee claimed that on 29 July 2002 at around 6:30 p.m., the ‘Young Post’ was ready to be printed and he had set the computer programme and inserted the paper.  While he was on his way to the space between machines No. 10 and 11 to check on the rollers, he came across Mr. Ying walking past him towards the end of the walkway.  He noticed Mr. Ying was walking slowly and not carrying anything in his hands.  He saw Mr. Ying reached the staircase, put his left hand on to the handrail and turned left; before completing the turn, he fell backwards onto the floor.  Mr. Lee admitted that he could not see Mr. Ying’s legs at the time; he had only seen the upper part of Mr. Ying’s body.  He quickly alerted his colleagues and supervisor and called the police.  He returned to look after Mr. Ying until the police arrived and the ambulance took Mr. Ying to the hospital.

13.Mr. Lee claimed he did not see any cardboard on the floor around the foot of the ladder of machine No. 11 at the time.  He admitted there are two situations where cardboards would be placed on the first floor of the press hall.  The first situation is when cleaners placed the cardboards around the shelf for storing cleaning detergents; these would usually be taped onto the floor with adhesive tape.  The second situation is where the cardboard boxes which came with the printing paper were used for insertion underneath the machines to absorb water and ink.  These cardboards would be cut into 30 inches squares.  However, Mr. Lee claimed that on the day of the accident, he did not see any cardboards on the floor other than those taped with adhesive tape. 

14.Mr. Lee agreed that it was the practice of the press hall that cleaners would come in from time to time to pick up pieces of cardboard, loose paper and debris left on the floor of the press hall.  The staff would leave such work to the cleaners.

15.Mr. Lee also admitted that while machines No. 1 to 8 did not require cardboards placed underneath them, the two new machines No. 10 and 11 had cardboards placed underneath them on the floor.  They were placed there not so much to soak up the water and ink but to prevent zinc plates from falling directly onto the ground through the gap on the platform.  These zinc plates were 16 inches x 30 inches and the pieces of cardboard paper placed on the floor were not taped onto the floor.  He admitted however that during the printing process, cardboard papers placed on the floor would become wet.  He further admitted that a few pieces of cardboard would be placed on the floor in case the floor should get wet.  At about 6:30 p.m. on the day of the accident, a few pieces of cardboard were placed ready for the Young Post to be printed. 

16.Mr. Lee admitted that just before the accident, he had turned into the gap between the two pressing machines to check on the rollers.  In spite of concentrating on his work on the rollers, he had glanced back and saw Mr. Ying starting to fall onto the floor.  He admitted he did not know why Mr. Ying fell backwards onto the floor and he had no idea where Mr. Ying was going when he passed him earlier.  Although he saw him approaching the direction of the staircase, he did not actually see him walking up the staircase.  He admitted in cross-examination he only saw Mr. Ying falling backwards with his left hand holding on to the handrail of the staircase.  He did not pay any attention to whether there were any paper, oil or ink on the floor for his concern after seeing Mr. Ying fell onto the ground was to help him and call the ambulance rather than looking to see whether there were any oil, water and paper on the floor.  He claimed, however, that had there been scraps of paper and cardboards on the floor he would have noticed it when he was attending to Mr. Ying.  He admitted in Court that on photograph B (page 278 of bundle E), on the mid left side of the photograph, close by the machine, there was a piece of discarded printed newspaper, presumably left on the floor for the cleaners to pick up.

17.During cross-examination, he admitted he had told the magistrate at the hearing on 17 February 2003 when the Respondent was prosecuted for “Failing to keep the floor surface of a work place in even and non slippery condition and the floor was kept free from obstruction or hazard” that Mr. Ying was walking quicker than normal when they passed each other shortly before the accident.  He further admitted he had told the magistrate he saw Mr. Ying “slipped and fell” as he was going up the staircase (see page 102 of bundle E).

Findings

18.I find Mr. Ying to be an honest witness.  He has been working for the Respondent since 1980. Through his diligence and good performance record, he was promoted to the post of chief printer and that was the position he held at the time of the accident in July 2002.

19.On 1 February 2006, he returned to work for the Respondent.  It is to Respondent’s credit that adjustments were made at the entrance to the building, the lift hall and the doors on the 1^st to 5^th floors of the post centre in order to accommodate wheelchair access and that on all 5 sets of doors on each floor, automatic devises had been installed to facilitate the Applicant’s access.  Furthermore, a disabled toilet had been installed on the 1^st floor together with an alarm system.  These implementations had made the Applicant’s return to work possible.

20.The Respondent had welcomed Mr. Ying back to work at the post centre even though he could no longer carry out all the duties of the chief printer.  Arrangements were made so that he can return to work carrying out the non-mobile side of the duties of the chief printer.  These showed the Respondent regarded Mr. Ying to be a diligent and honest employee and valued his contributions.  There is therefore no reason for me to doubt the honesty and integrity of Mr. Ying.  On the other hand, Mr. Lee’s evidence at the hearing regarding the accident was completely different from the evidence he gave at the magistrate court hearing which took place within 6 months of the accident where he said he saw Mr. Ying was walking quicker than normal and had ‘slipped and fell’.  He could not explain the change in his evidence.  His evidence is therefore unreliable.

Medical Evidence

21.The medical history of Mr. Ying was summed up by Dr. George C.G. Koo in his report of 28 February 2004 (page 2 of bundle B) :

“	After clinical and radiological examination including MRI scan of the cervical spine, he was found to suffer from cervical spinal cord contusion with Oedema from C3 to T1, resulting in paraparesis and paraesthesia below the C6 dermatome, associated with double incontinence.  There was no fracture.
	The neck was immobilized with pillows at first, as he developed pneumonia soon after admission.  When his condition improved in the intensive care unit, operative posterior decompression of the cervical spine by laminoplasty from C3 to T1, was performed on the 5th August 2002.  The postoperative course was uneventful.  He had gradual but very slow improvement of his limb numbness.”

22.Mr. Ying was transferred to the Tai Po Hospital for rehabilitation on 16 August 2002 where he remained for 6 months.  During which time he received intensive physiotherapy and occupational therapy.  As a result, he recovered much of his hand movement, partial sensory perception of the body and some movements of the legs.  Dr. Koo confirmed Mr. Ying was wheelchair bound and needed assistance for most activities of daily living.  After regular and frequent rehabilitation sessions, he regained most of the strength and movement of his hands.  He is now able to perform much of the activities of daily living but could only stand or walk for very short distance with the use of a walking frame under supervision.

23.Dr. Koo confirmed at page 3 of his report that Mr. Ying other than suffering from cervical spinal cord injury, also suffered from neurogenic disturbance of the urinary and bowel functions.  Dr. Koo confirmed further that Mr. Ying could not pass urine well and has to administer self Intermittent Catheterization (“IMC”) every four hours.  Dr. Koo found Mr. Ying had improved sensation of bladder at a later stage.  He is dependant on rectal suppository and laxatives even though he has regained some sensation and control in his bowel function.

24.Dr. Koo further found Mr. Ying had impaired sensation of his genitalia and sexual function after the accident.  He was able to perform most activities of self-care and he had learned to use the shower and toilet saved that he could not dress without assistance.

25.According to the AMA’s Guide to The Evaluation of Permanent Impairment, Dr. Koo assessed Mr. Ying suffers from impairment of 15% for his neuropathic bladder, 10% for his bowel problem and 5% for his sexual dysfunction, giving a combined total of 28% for his urologically related disability.

26.The Defence obtained the expert opinion from orthopaedic surgeon Dr. Chun Siu-yeung who examined Mr. Ying on 27 October 2003.  Dr. Chun gave his report on 1 November 2003 (at page 26 of bundle B).  At paragraph 33 of his report, he referred to the MRI report done on Mr. Ying the day after the accident which showed anterior osteophytes, disc degeneration, disc protrusions at multiple levels, OPLL at C6-7 level causing severe spinal canal stenosis.  He said “The spinal cord was severely compressed at this level.  All these were pre-existing conditions.”  He further commented at paragraph 34 of his report:

“

With such a pre-existing MRI picture, it was most unlikely that he did not have some neurological deficit prior to the fall.  Because the OPLL and the osteophytes were slow and accumulative in growth the chronic effect of spinal cord compression was gradual and insidious.  The emergence of motor weakness and deterioration in coordination, sensory impairment is gradual in some of these patients, initially they escape the notice of the patient until certain event triggers/coincides the onset of acute symptoms.  Therefore it is not strange and exceptional that before the accident patient did not notice significant symptoms or paid attention to such early symptoms.”

27.At paragraph 38 of his report on page 28 of bundle B, he gave the following conclusion:

“

38.

Looking at the severity of the MRI picture, my diagnosis on this case that Mr. Ying had a pre-existing cervical spondylotic myelopathy (CSM) with pre-existing symptoms, in which the spinal cord was under constant mechanical compression.  His personal habit of heavy smoking and his medical history of diabetes mellitus, together with the mechanical compression in the cervical spine, further compromised the micro-circulation to the spinal cord.  The patient fell because of the spinal cord failed at that point to give adequate muscle control and power to the lower limbs and trunk.  Then at the fall with landing on buttock, further insult was added to the already failed cervical spinal cord.”

28.According to Dr. David Fang, orthopaedic surgeon giving evidence on behalf of the Applicant, he agreed that Mr. Ying had pre-existing OPLL (ossification of the posterior longtitudinal ligament) which narrowed the cervical spinal canal and he was predisposed to injury of the spinal cord when he fell on 29 July 2002.  He said at paragraph 5 of his report on page 17-2 of bundle B:

“	……. If there had been no OPLL, Mr. Ying would not have sustained such severe injury to the spinal cord by a fall on the floor in which he landed on his buttocks.  However he could still have sustained spinal cord injury through a process of acute neck extension causing central cord syndrome. ………..”
“	7.	Dr. Chun listed the symptoms of cervical spondylotic myelopathy in paragraph 3 of his report dated 21 April 2007.  None of these symptoms was present in the case of Mr. Ying, until after the accident on 29 July 2002.  He also reviewed the medical records of Mr. Ying in paragraph 2 to 10 of his report dated 23 Feb 2007.  Dr. Chun emphasized central neck pain, decreased cervical lordosis, stiffness and pain on extension in paragraph 4.  He also emphasized dizziness and vertigo associated with neck pain in paragraph 6.
	8.	Neck pain, decreased cervical lordosis, aggravation by neck extension and stiffness are not indicative of cervical myelopathy whatsoever.  None of these points to neurological impairment of the spinal cord.
	9.	Vertigo and dizziness may be the result of compression of the vertebral arteries in the cervical spine by degenerative osteophyes (bone spurs).  This occurs rarely in cervical spondylosis, but not cervical myelopathy.  In the book edited by Szpalski and Gunzberg, quoted by Dr. Chun page 50 line 38 rightly pointed out the a cervical original for vertigo is possible, but can be accepted only after all other possibilities have been ruled out.”

29.Dr. Fang disagreed with Dr. Chun’s April 2007 report at paragraph 13 (page 17-3 of bundle B) :

“	13.	Dr. Chun surmised there was a 50% chance that Mr. Ying fell because of weakness of the lower limb muscles which could no longer hold his body weight (paragraph 9, 21 April 2007).  I have to point out that this hypothesis is completely unfounded because nowhere in Mr. Ying’s medical records can it be shown that there was the slightest motor weakness in either the lower limbs or the trunk.  Frequent cough with sputum does not usually imply respiratory muscle weakness and can arise from numerous causes including upper and lower respiratory tract inflammation and infection, tumour, and chronic obstructive pulmonary disease.
	14.	Evidence that there was any degree of spinal cord damage or functional compromise is completely absent.  I must reiterate that there is no evidence whatsoever to support the presumption that the spinal cord failed at any point to give adequate motor power to the lower limbs and trunk, until after Mr. Ying had fallen on his buttocks, causing acute injury to the cervical spinal cord.”…..

30.He agreed that when the OPLL is severe, the chance of injury to the spinal cord is relatively high.  However, he disagreed there is anything in the literature to support that the odds are near 75% as suggested by Dr. Chun.

31.In Dr. Fang’s opinion, the spinal cord can tolerate a lot of insidious pressure from narrowing of the spinal canal before any neurologic compromise appears.  On the other hand, the spinal cord cannot tolerate sudden compression, and abrupt narrowing of the canal will lead to permanent cord damage.  Since Mr. Ying had no symptom or sign of spinal cord dysfunction in spite of substantial spinal canal narrowing from the OPLL and no evidence of cervical myelopathy can be found from the medical records of Mr. Ying prior to the accident, Dr. Fang concluded Mr. Ying’s fall on the buttocks had caused the sudden narrowing of the spinal canal due to acute flexion and/or extension of the neck.  This had damaged the spinal cord and only then did he exhibit symptoms of myelopathy.  Dr. Fang agreed if there had been no OPLL the spinal cord would probably not have suffered any severe and acute compression from the fall.   If there had been no fall, Mr. Ying could nevertheless still develop cervical myelopathy some time in the future due to possible progressive narrowing of the canal.  In his opinion, the accident was not due to OPLL (paragraph 5 to 7 on page 17-22 of bundle B). 

Discussion

32.Both Dr. Chun and Dr. Fang are experienced orthopaedic surgeons with impeccable reputation.  They based their opinions on the medical records of Mr. Ying.  The medical records of Mr. Ying showed he had a complaint of cervical spondylosis between 12 October to 13 November 1999 for which he had sought medical treatments.  Other than that incident, there were no previous symptoms relating to the OPLL, it was first identified by the doctor attending him after the accident.  Not only did Dr. Lau who Mr. Ying consulted in 1999 found no OPLL in the X-ray of Mr. Ying; prior to the accident, Mr. Ying did not exhibit any symptom of OPLL such as those reported in the study and research by the experts referred to by Dr. Chun and Dr. Fang in medical journals: In short, numbness or tingling in the upper extremities, clumsiness of the hands, tripping and weakness of lower extremities (Cervical Mylothpathy in the Japanese by Messrs Kokubun, Sato, Ishii and Tanaka on page 74 and 75 of bundle B) were absent in Mr. Ying prior to the accident.

33.Mr. Ying had sought medical treatments for his cervical spondylosis 18 times in 1999, it is most unlikely for him not to have consulted his doctors if he had symptoms similar to those mentioned above prior to the accident.  He is not a person who would ignore symptoms of OPLL from his past medical history.

34.After careful consideration of the evidence of the two experts Drs. Chun and Fang, I come to the conclusion that Mr. Ying was symptoms-free of OPLL.  Even though the OPLL seemed to have grown at a fast pace since 1999, it did not affect his daily living nor did he feel any adverse effects before the accident.  There is of course a possibility that he would eventually develop cervical myelopathy due to the possible progressive narrowing of the spinal canal but it is uncertain when that will happen.

35.I find Mr. Ying’s evidence that there was a piece of cardboard lying on the floor in front of the staircase of the machine No. 11 which caused his slip and fall to be credible.  Both Mr. Ying and Mr. Lee admitted there were often loose pieces of paper and cardboard on the floor waiting for the cleaners to clear.  In photograph B (page 278 of bundle E) taken after the accident, a piece of paper can be seen on the floor; it is obviously something of a daily occurrence, which the staff at the post centre are accustomed to and often ignored.  It is so common that the staff would allow it to be picked up by the camera on the day the photograph was taken in preparation of these proceedings.  For the aforesaid reasons, I am not satisfied the Respondent has shown the Applicant was not injured in the course of employment due to a pre-existing medical condition.  The Respondent is liable under s. 5 of the Ordinance.

Conclusion

36.Mr. Lee admitted at the magistrate court hearing that Mr. Ying had ‘slipped and fell’.  His evidence further revealed the presence of loose papers and cardboards on the floor at the press hall.  As he did not see the lower limbs of Mr. Ying when he fell down, there is no evidence to contradict Mr. Ying’s evidence that he slipped on a piece of cardboard and fell down because of it.  I therefore conclude Mr. Ying had slipped on a piece of cardboard paper and fell backwards; the impact had caused damage to his spinal cord due to flexion and extension of the neck.  I accept Dr. Fang’s opinion that the accident had caused symptoms of cervical spondylotic myelopathy in Mr. Ying.

Quantum

No Apportionment under the Law

37.I was referred to the case of LKK Trans Ltd v Wong Hoi Chung FACV 14/2005, a judgment of the Court of Final Appeal on 27 February 2006 where the court considered whether the injury during the accident and the pre-existing condition of the applicant were the concurrent cause of the incapacity and whether as a matter of construction of the Ordinance there ought to be an apportionment of the incapacity attributable to the injury with the compensation payable limited accordingly.  Similar to the present case, the appeal was based on an application under the Employees’ Compensation Ordinance.  At paragraph 36 of Mr. Justice Ribeiro PJ’s judgment, he referred to the Ordinance and held:-

“	It is a scheme whereby the community, through the cost-sharing device of compulsory insurance, permits employees so incapacitated to look to their employers for compensation having regard to the extent of the incapacity suffered, regardless of any fault on the part of the employer and regardless of the circumstances in which the work accident arose.  The focus is, in other words, on insurance-based compensation aimed at alleviating the incapacitated employee’s hardship rather than on compensation confined in a manner which reflects the employer’s fault.
	Absence of statutory provisions in support of apportionment
	37.	The self-contained nature of the statutory scheme has long been recognized.  As Sir Alan Huggins V-P put it in Hong Kong Paper Mills Ltd v Chan Hin-wu [1981] HKLR 556:
		“	There is a great difference between a claim for damages in negligence at Common Law and a claim for compensation under the Workmen’s Compensation Ordinance.  Workmen’s compensation must be assessed solely under the statutory provisions and unless the Ordinance provides for a reduction of the basis compensation specified, no reduction may be made.” (at 558)
	The Court of Appeal held in that case that in the absence of express provision, the common law duty to mitigate could not be imported into the statutory scheme.  A claimant who had refused to have an operation which, on the medical evidence, would have resulted in a significantly reduced permanent incapacity was nonetheless held entitled to full compensation.”

He held the appellant had failed to identify the provisions of the Ordinance, which establish the requirement of apportionment.

38.In the case of Wilson v Chatterton [1946] 1 KB 360, the Court of Appeal in the U.K. after considering section 1 of the Workmen’s Compensation at 1925 (similar to the Hong Kong Employees’ Compensation Ordinance) held at page 368:

“

We infer that sick men and partially unfit and partly disabled men in employment were intended by Parliament to get the benefits of the Act just as much as the hale and hearty and perfectly fit men; for any intention of Parliament to exclude them must have found expression, and there is not a hint of it.”

39.It is therefore well established that in spite of Mr. Ying’s pre-existing OPLL, there will be no apportionment of compensation under the Ordinance.

Compensation under section 7

40.The parties have agreed that Mr. Ying’s earnings at the time of the accident were $26,282 per month.  It is further agreed that after he returned to work in February 2006, he was earning the basic pay of $20,000 per month.  Mr. Ying was assessed by the Medical Assessment Board (MAB) to have suffered 78% permanent loss of earning capacity. 

41.The Respondent, on the other hand, had re-employed Mr. Ying since February 2006 after making adjustments at the workplace for Mr. Ying.  The efforts of the Respondent are commendable; otherwise, Mr. Ying would be virtually unemployable in spite of 22 years experience as a printer.  The work undertaken by Mr. Ying after his return to work in February 2006 had been reduced.  I cannot imagine Mr. Ying would be employable in the open labour market even in the printing and publishing industry for it would require an employer of great compassion and indulgence to take him on and to pay him the wages of a chief printer due to the limitations of Mr. Ying after the accident.  In spite of the Respondent’s expressed intention to keep Mr. Ying in its employ, there is no guarantee Mr. Ying will remain employed by the Respondent until the usual retirement age.  For the aforesaid reason, I will allow an award under section 7 applying the maximum multiplicand under Schedule 6 of $21,000 and the multiplier of 72 months at 78%.  It is:-

$21,000 x 72 x 78% = $1,179,360

Compensation under section 8 – Future Attention

42.The Applicant asks for the statutory maximum of $412,000 under section 8:-

“	The employee is unable to perform the essential actions of life without the constant attention of another person such compensation as the court considered necessary to meet the causes of such constant attention shall be payable under this section.”

43.In the case of Lau Ka Shui v Yiu Wing Construction Co. Ltd. & another [1991] 2 HKC 644 Cheung DJ (as he then was) held at page 648 E:

“	If, by reason of the permanent total incapacity of the applicant, special attention is required such as helping him with his urination or bowel movements or attending to his bed sores, then the costs for such help is recoverable under this section.”

44.He held further that the applicant who suffered from permanent total incapacity was clearly unable to perform the essential actions of life because he was confined to a wheelchair and required help to attend to his bedsores and bowel movements.  He also made it clear that costs recoverable under section 8 is not granted in respect of help in housework or other purely domestic duties.

45.According to paragraph 32 of Dr. Chun’s medical report (page 37 of bundle B), Mr. Ying is unable to get out of bed without help, he requires help when he transfers himself to a commode chair or wheelchair.  He requires help to have his trousers removed or pulled up and he requires help when he uses the toilet.  He can shower by himself but he requires help to put on his underwear.  He can feed himself but is clumsy with chopsticks.  He takes antispasmodic drugs and other medicines for his conditions.  He can speak clearly but could not raise his voice because he does not have the necessary control of his thoracic muscles (see Dr. Fang’s report on pages 13 to 14 of bundle B).  He can walk slowly for 20 steps taking him 4 to 5 minutes to do so using a walking frame.

46.As the aforesaid conditions would remain with Mr. Ying for the rest of his life and as he is not married, it is only reasonable for Mr. Ying to be assisted by a helper to help with his daily living.  The helper will have to cope with Mr. Ying’s daily habits including his late working hours.  It means the helper will have to be on hand to help Mr. Ying after he returns home from work after 11:00 p.m. at night, to dress and undress him and to help him to clean himself after visiting the toilet.  Furthermore, the helper will also have to be available throughout the night.  For the aforesaid reasons, I am persuaded that the award of the statutory maximum of $412,000 is appropriate.

Compensation under section 10

47.The Applicant’s Counsel Mr. Ramanathan informed the court the Applicant no longer wished to claim under section 10 because Mr. Ying did receive periodical payments for 3 years after the accident in the total sum of $720,000.

Summary

Under section 7	$1,179,360
Under section 8	$412,000
Total	$1,591,360

48.I grant an award to the Applicant under section 7 and 8 of the ordinance in the sum of $1,591,360 with interest at 2% p.a. from the date of accident to the date of the judgment and thereafter at judgment rate until payment.

49.Costs nisi – the Respondent shall pay the Applicant costs of the application, to be taxed if not agreed, with certificate for Counsel.  The order will be made absolute should the parties fail to make an application on costs within 14 days of the date of judgment.

Parties :

Mr. Ramanathan Kumar instructed by Messrs K.C. Ho & Fong assigned by DLA for Applicant.

Mr. Ashok Sakhrani instructed by Messrs Johnson, Stokes & Master for the Respondent.