Wan Chuen Hoi v. Wing Shun Engineering Transportation Ltd

DCEC 1059/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 1059 OF 2007

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Coram:  His Hon Judge Leung in court

Date of hearing:  3 April 2008

Date of judgment:  3 April 2008

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ASSESSMENT OF COMPENSATION

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1.On 9 March 2006, Wan (the Applicant) was injured in the course of his work as truck driver for Wing Shun (the Respondent).  Wan filed his claim against Wing Shun for compensation under the Employees’ Compensation Ordinance, Cap.282.

LIABILITY

2.The Form 2 and the tax return filed by Wing Shun suggested that Wan was a contractor rather than an employee.  How parties chose to label their relationship is never determinative of the real situation.  In any event, Wing Shun has never entered appearance and judgment on liability was actually entered on 14 December 2007 for compensation to be assessed.  Wing Shun remained absent today.  On the basis of the affirmations of service filed on behalf of Wan, I am satisfied that previous orders, documents and notice of today’s hearing have been served on Wing Shun.  Wan should be allowed to proceed with proving his claim.

INJURIES

3.On that day, Wan was instructed to drive a 16-ton truck with a 3-ton backhoe and a drill on board to a container depot at Yuen Long, New Territories.  At the container depot, and in the course of driving the backhoe with its arm carrying the drill from the truck, the backhoe lost balance and tilted to the right.  While escaping from the driver’s cabin of the backhoe, Wan’s left hand hit the guardrail of the truck before the left side of his body landed on the truck platform.  Wan gave this account in his statement which he adopted in court.  I accept such evidence.

4.Wan was sent to the hospital.  He suffered from fractures of the left wrist and hip.  The left wrist was treated with external fixation while the left hip was treated with open reduction and internal fixation.  He was hospitalised for several weeks.  The external fixator was removed weeks later.  Physiotherapy followed.  This medical history can be found in the medical records of the hospital filed.

5.The major problem Wan is faced with is the residual pain over the left hip and pain and numbness over the left wrist.  For that, the Employees’ Compensation Assessment Board issued its certificate on 1 March 2007 assessing Wan’s loss of earning capacity to be 1.5%.  The Board reviewed the assessment to 2% by its certificate of review dated 5 July 2007.  By the present application, Wan also lodged an appeal against the Board’s assessment pursuant to section 18 of the Ordinance.

THE SECTION 18 APPEAL

6.In support of the section 18 appeal, Wan relies on the expert opinion of Dr Johnson Lam.  Dr Lam examined Wan in August 2007 and produced his report in September 2007.  The court has previously directed parties to file their respective medical expert reports and to seek further direction as to whether the experts should be called to testify.  That has not been done.  However, in view of the continuing default of Wing Shun, I am in as good a position to decide whether the report could be accepted without the expert attending.  I see no reason why this should not be the case here.

7.Dr Lam found that the fractures had united.  Physical examination of Wan revealed mild tenderness over the dorsum of the wrist.  Mild weakness was noted.  There was some residual pain and stiffness of the left hip.  The treatment so far received by Wan was appropriate and adequate.  He has reached maximum medical improvement.  Remaining in-situ, the implants could be a contributory cause of the residual pain during big movement of the hip.  However it is not a must the metal implants in the hip had to be removed.

8.Considering Wan’s pre-accident job, which required frequent climbing both up and down the truck and excavator as many as 30-40 times a day, Wan would have some difficulty in returning to his pre-accident job.  Some decrease in efficiency and endurance at work would be expected.  More frequent breaks and slower climbing would be required.  In the circumstances, Dr Lam assessed Wan’s loss of earning capacity due to the wrist and hip condition to be 2.5% and 6% respectively.  The total loss was 8.5%.

9.In fact, since the accident, Wan has been unemployed and depending on comprehensive assistance.

10.I see no reason to query Dr Lam’s evidence in the circumstances.  I allow the section 18 appeal and would adopt 8.5% for the purpose of the assessment.

SECTION 9 COMPENSATION

11.According to Wan, he started working for Wing Shun in July 2006.  He had to work for 10 to 11 hours a day.  He was supposed to work 26 days a month.  But due to the workload, Wan actually took only 2 days off a month.  Twice a month, he received his income in cash, the amount of which varied in accordance with the quantity of goods transported, the distance travelled and the time taken.  He could not tell precisely how the amount was calculated but said that the average monthly income was about HK$12,000.

12.The tax return filed by Wing Shun for the year of assessment from 1 April 2005 to 31 March 2006 shows that Wan was paid a total amount of HK$99,526.  Plainly, during this period, Wan only started to work for Wing Shun on 16 July 2005 and his last day of work for Wing Shun was 9 March 2006, i.e., the date of the accident.  That was about 7.7 months.  The average monthly income was therefore HK$12,925.45.

13.Wan was born on 8 January 1955 and was 51 years old at the time of the accident.  The statutory multiplier for calculating section 9 compensation is 72 months.  The compensation would be HK$12,925.45 x 72 months x 8.5% = HK$79,103.75.

SECTION 10 COMPENSATION

14.Wan was granted sick leave during the period between 10 March and 7 March 2007.  This was certified by the Board and confirmed by Dr Lam to be reasonable.  The compensation under section 10 should be HK$12,925.45 x 12 months x 4/5 = HK$124,084.32.

SECTION 10A COMPENSATION

15.The receipts evidence medical expenses in the total sum of HK$2,700, of which HK$2,600 was exempted.  The actual amount spent was HK$100.

SUMMARY

16.The compensation should be:

Under section 9	HK$ 79,103.75
Under section 10	HK$124,084.32
Under section 10A	HK$      100.00
Total:	HK$203,288.07

ORDER

17.I order that Wing Shun shall pay to Wan compensation in the sum of HK$203,288.07 together with interest thereon at half judgment rate from the date of accident (9 March 2006) to today and thereafter at the judgment rate until full payment.   Wan shall have the costs of this application including these assessment proceedings and any costs reserved, subject to taxation.  Wan’s own costs shall be taxed in accordance with the legal aid regulations.

Representation:

Mr K Y Ng of Messrs Yip Tse & Tang for the Applicant on the instruction of the Director of Legal Aid

Respondent, in person, absent