Tam Shiu Wan v. Shun Shing Construction & Engineering Co Ltd
Read the full judgment text of DCEC 119/2005 on BabelCite. This District Court judgment.
1. This is an application for compensation under the Employees’ Compensation Ordinance, Cap.282 (“ECO”).
Cites 3 cases
|
DCEC 119/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 119 OF 2005 ----------------------
---------------------- Coram: Deputy District Judge J. Ko in Court Dates of Hearing: 21st, 22nd and 24th April 2008 Date of Handing down of Judgment: 22nd May 2008 ---------------------- JUDGMENT ---------------------- 1.This is an application for compensation under the Employees’ Compensation Ordinance, Cap.282 (“ECO”). 2.The Applicant was employed by the Respondent as an inventory clerk working in the construction site at Sky Towers in To Kwa Wan. Chiang Iok Kuong Christopher, a site agent employed by the Respondent, was his immediate supervisor. It is common ground that a work related dispute arose between the Applicant and Mr. Chiang on 15th November 2004 during which Mr. Chiang assaulted the Applicant (“the accident”). 3.It is the Applicant’s case that the accident arose out of and in the course of his employment with the Respondent and personal injury was caused to him. He commenced these proceedings to claim compensation under ss. 8, 9, 10 and 10A of the ECO. Both parties are appealing against the certificate of assessment dated 15th November 2007 issued by the Employees’ Compensation (Ordinary Assessment) Board (“Form 7”). By a notice of admission of liability dated 11th April 2008, the Respondent admitted liability to the claim leaving the amount of compensation to be assessed. The Applicant’s counsel indicates in her opening submission that the Applicant is no longer pursuing his claim under s.8. 4.Hence, this court will have to determine the appeal against the Form 7 and assess the compensation payable under ss.9, 10 and 10A of the ECO. This involves a consideration of the following issues:
What is the injury caused by the accident? 5.The Respondent’s counsel queries in his closing submission how a minor assault such as what happened in this case could have caused the serious injury, both physical and psychiatric, alleged by the Applicant. The orthopaedic experts engaged by the parties and the Applicant’s own psychiatric expert were all of the opinion that the Applicant has magnified the symptoms. As such, it is imperative to begin the discussion with the mechanics of the assault so that the true nature and extent of the injury can be properly appreciated. 6.Nevertheless, I decline the invitation to rule on other peripheral matters such as the cause of the assault. Given the admission of liability, determination of factual disputes such as whether the Applicant mentioned about a computer floppy disc to Mr. Chiang, whether the Applicant was given 2 hours to manually collate the data, whether the Applicant used with foul language, and whether the Applicant threw box files on Mr. Chiang’s table would not, in my view, serve any useful purpose. (a) The assault 7.It is common ground that the assault happened sometime after 9 am on 15th November 2004 in the site office. 8.According to the Applicant, he was called to Mr. Chiang’s office shortly after he reported duty in the morning. Mr. Chiang asked him about the receipts and disbursements relating to a subcontractor called Wong Por Kee Limited (黃波記). He returned to his office to fetch some files and a floppy disc containing the relevant data. When he returned to Mr. Chiang’s office, he asked Mr. Chiang to refer to the files and the disc himself for a better picture. Mr. Chiang said he did not know how to operate the computer and asked the Applicant to manually prepare a table within 2 hours setting out all the relevant data. The Applicant thought it would be impossible to do so as there were 3 years of records to collate and he had only been in charge of such records for a year. Furthermore, he thought there was no point in preparing the table as the Respondent and Wong Por Kee Limited had already verified the data. He therefore refused to prepare the table and again asked Mr. Chiang to refer to the files and the disc. He put down the files and was about to leave when he was assaulted. 9.All along during the conversation, Mr. Chiang was sitting at his desk whilst the Applicant was standing nearby. Suddenly, Mr. Chiang got up and used his right hand to grab the Applicant’s shirt. He struggled, but was nevertheless lifted up and twisted by Mr. Chiang. Mr. Chiang then used his left hand to squeeze his neck for about 10 seconds before other colleagues separated them. 10.According to Mr. Chiang, however, he had received complaints from Wong Por Kee Limited regarding delays due to insufficient supply of materials. In the morning in question, he asked the Applicant to bring him the records respecting Wong Por Kee Limited. The Applicant came to his office and threw 2 to 3 lever-arch files on his desk. He was displeased by the Applicant’s behaviour and asked the Applicant to leave his office. The Applicant then pointed his finger at Mr. Chiang and used foul language to insult Mr. Chiang’s mother. Mr. Chiang lost his temper and grabbed the Applicant by the neck to stop him from swearing. About 5 to 6 seconds later, other colleagues intervened and separated them. 11.Under cross-examination, the Applicant admits he is not certain if he was lifted up or twisted by Mr. Chiang during the assault. He agrees that he did not mention in his statement to the police (dated 16th November 2004) and his witness statement (dated 14th February 2008) that he had struggled during the assault. In fact he stated in those statements that he “could not move” (動彈不得) at that time. Although Mr. Chiang might have admitted in the Magistracy that he grabbed the Applicant’s neck “for about 10 seconds”, the Applicant confirms that he cannot be sure about the duration. From their evidence, I find that the assault involved sudden but forceful pulling of the Applicant’s body and grabbing of his neck for at least 5 to 6 seconds. The Applicant did not struggle (given the suddenness and short duration of the assault) and he was not lifted up or twisted in the assault. (b) The injury and treatment 12.The Applicant returned to his office after the assault. According to him, his right neck was in pain and he experienced difficulty in swallowing at about 10 am. He says he also had a headache and felt pain in his right waist. He attended Leung Kau Kui Clinic (“LKK Clinic”) in the afternoon for treatment. 13.According to the medical report of Dr. Yip of LKK Clinic, the Applicant complained of neck pain and epigastric discomfort during the consultation. Physical examination revealed mild tenderness over the neck muscle. There was no neurological sign. Range of movement of the neck was satisfactory. The doctor gave a provisional diagnosis of neck muscle strain and gastritis. The Applicant was discharged with painkillers and analgesic balm. It is common ground that the Applicant’s gastritis problem is unrelated to the accident. 14.The Applicant says he felt more pain over his head, neck and right waist overnight. He also felt distressed by Mr. Chiang’s behaviour. He therefore filed a report with the police on the next day. He was sent to the Accident and Emergency Department of Queen Elizabeth Hospital (“QEH-A&E”) for examination. 15.According to the medical reports prepared by Dr. Kwok of QEH-A&E, there was mild tenderness at the right side of the neck and the left lower back. X-ray of the cervical spine showed loss of lordosis. The Applicant was treated and discharged with a diagnosis of soft tissue injury. The doctor opined that permanent disability was unlikely. 16.For unknown reasons, Dr. Kwok prepared two medical reports in respect of the Applicant’s injury although he had only attended the Applicant once on 16th November 2004. These reports contain very different accounts of how the Applicant was assaulted. In the first report, it was stated that the Applicant sustained injury from “an alleged assault by others”. In the second report, it was noted that the Applicant gave a history of “being assaulted by 1 person who caught his neck and kicked him a few times with knee”. This has prompted cross-examination at the trial as to whether the Applicant told Dr. Kwok that he had been assaulted by more than one person or that he had been kicked with a knee. Given the different accounts on the mode of assault in these reports and the fact that the doctor was not called to explain the inconsistency, I am not prepared to find that the Applicant has exaggerated the mode of assault to the doctor with a view to make his injury sound more serious. 17.The Applicant also sought treatment from Kwun Tong Jockey Club Health Centre General Out-patient Clinic (“KT-GOPC”) as well as some private medical practitioners. 18.According to the medical report of Dr. Wong of KT-GOPC who treated the Applicant on 18th November 2004, the Applicant’s neck pain had improved although there was still mild tenderness over the right side of the nape. Range of movement of the neck was full in flexion and extension, but there was limitation in rotation to the right side due to pain. Power of the Applicant’s upper limbs on both sides was full. The Applicant was treated with analgesic. The Applicant attended follow-up treatments at KT-GOPC between November 2004 and July 2005. 19.Since September 2005, the Applicant has been receiving treatment from the Department of Orthopaedics & Traumatology (“UCH-O&T”) of United Christian Hospital (“UCH”). He was also referred to the physiotherapy department and the pain centre of the hospital for treatment. 20.I should pause here to mention about a video surveillance on the Applicant taken on 7th, 8th and 10th October 2005. It captured the Applicant walking his daughter home after school, hanging clothes to dry while at home, and playing with her daughter in the playground. The Applicant behaved normally in the video. He is seen turning his head naturally with no apparent difficulty or pain. He is seen carrying a shopping bag and even his daughter, as well as stretching up and down to hang dry the clothes. The Applicant does not dispute the video. 21.The medical report for this period, however, reveals a very different picture. According to the report of Dr. Li of UCH-O&T which documented the Applicant’s condition between September and December 2005, the Applicant had a very stiff neck with right sided paravertebral muscle spasm and diffused tenderness over the neck region. Range of movement of the neck decreased in all directions, which was more severe on rotation and flexion. Mild decrease of power over both upper limbs was noted. The diagnosis was neck contusion. The doctor also noted that the Applicant was over-reactive during examination. 22.When cross-examined about the video, the Applicant explains he behaved normally because of the effect of painkillers. He says he put on a brave face so as to impress his wife who just underwent an operation. No doubt, painkillers would have helped the Applicant to relieve some of the unpleasant symptoms. But I do not think that is sufficient to account for the marked difference between his condition as documented in the medical reports and his condition as revealed by the video. In my view, the video confirms the experts’ opinion that the Applicant has indeed exaggerated the severity of his injury. 23.There is another report from Dr. Li documenting the Applicant’s condition up to November 2006. The doctor basically repeated his comments in the previous report but added that MRI of the cervical spine in June 2006 showed left posterolateral disc prolapse at C5/6 level and diffuse disc bulging at C6/7 level. Aside from neck contusion, the doctor also diagnosed the Applicant to be suffering from prolapsed intervertebral disc at lower cervical spine. This is the first time such condition and diagnosis are documented. 24.According to the medical reports from the pain clinic of UCH, the Applicant first attended the clinic on 10th April 2006 for treatment. Pain was located over the Applicant’s right neck with shooting pain radiating to the right occiput and temple region. There was also some non-specific pain radiating down to his right upper limb. The Applicant was put on analgesic. In August 2006, trigger point injection to his neck and right occipital nerve block was done. The procedure was repeated in March and September 2007. According to the Applicant, he received the same treatment in January 2008 and was told by the doctor that he would need similar treatment once every half a year in future. 25.The Applicant says he was also distressed by the fact that he was subsequently dismissed by the Respondent unlawfully. He suffered insomnia, low and unstable mood, and frequent loss of temper. He was referred to the psychiatric centre of UCH for treatment. I should note here the Respondent’s case that the Applicant was made redundant along with other staff such as Mr. Chiang upon the completion of the construction project. 26.According to the medical reports from the psychiatric centre of UCH, the Applicant complained of unstable mood, irritability, easy temper outburst, poor sleep, low mood, reduced appetite, and feelings of guilt, worthlessness and uselessness when he first attended the clinic on 9th December 2005. He harboured persecutory idea and said he had heard a non-existing and unknown male’s voice with threatening content. He was diagnosed to be suffering from psychotic depression and was admitted into the psychiatric ward between 19th April 2006 and 5th June 2006. Upon discharge in September 2007, he was followed-up at Yung Fung Shee Psychiatric Day Hospital. 27.On 22nd September 2007, the Applicant attempted suicide. He made a superficial laceration on his right forearm and took about 20 tablets of psychiatric medication. He was re-admitted into the psychiatric ward of UCH until 2nd November 2007. 28.At present, the Applicant says he is still suffering from headaches, neck pain, right hand tremor and numbness. His mood is unstable and he would scold his family. He also has a low mood as he feels he cannot support his daughter studying in the USA. His sleep and appetite are adversely affected and his memory is deteriorating. (c) The experts’ assessments 29.The Applicant and the Respondent engaged Dr. Wong See Hoi and Dr. Chun Siu Yeung respectively to advise on the orthopaedic aspect of the Applicant’s injury. The doctors examined the Applicant on 2nd December 2005. They found tenderness over the right sternomastoid muscle, at midline of the neck up to the occipital region and at the para-spinal neck muscle. There was marked decrease in the range of movement of the neck, especially in flexion. X-ray of the cervical spine showed loss of cervical lordosis and degenerative changes at C4/5 and C5/6 levels. 30.Dr. Wong’s diagnosis was soft tissue back and neck sprain injury. He opined that the accident had aggravated the Applicant’s pre-existing degenerative spine condition and contributed to his persistent neck problem. After viewing the surveillance video, Dr. Wong agreed there was certain degree of symptom magnification. He said the prognosis was good and the Applicant should be able to resume his pre-accident work although he would have on and off attacks of neck pain especially after exertion. He assessed the neck pain caused by the injury to amount to 1-2% impairment of the whole person. He also considered the sick leave granted by various doctors intermittently from 16th November 2004 to 26th October 2005 to be reasonable. 31.Dr. Chun’s diagnosis was very minor soft tissue injury to the neck muscle on the right side. He opined that the degenerative changes noted in the x-ray had no relationship with the injury. Dr. Chun said, after viewing the surveillance video, that the symptoms and signs noted at the joint examination were magnified. He opined from an orthopaedic point of view that the Applicant had fully recovered from the injury. He did not consider the Applicant to have suffered any disability in the labour market from a medical point of view and opined that there should be no loss of earning capacity. He considered a reasonable period of sick leave should be no more than 2 weeks. 32.The Employees’ Compensation (Ordinary Assessment) Board (“the Board”) conducted an assessment on the Applicant’s injury on 1st November 2007. The Board certified in the Form 7 that the Applicant was suffering from neck injury resulting in (i) neck pain and stiffness, (ii) upper limb twitching, and (iii) psychiatric impairment. The Board approved the sick leave granted by the treating doctors and assessed the necessary period of absence from duty to be more than 2 years. The Applicant’s loss of earning capacity permanently caused by the injury was assessed at 8%. 33.In a further report prepared by Dr. Wong, the doctor considered the overall assessment of the Board that the Applicant was suffering from 8% loss of earning capacity reasonable. He attributed 5% loss of earning capacity to neck pain and its resultant effect on the Applicant’s working capacity. 34.On the psychiatric aspect of the injury, the parties respectively engaged Dr. Kieran Singer and Dr. Law Wun Tong, who are specialists in psychiatry, for advice. Joint examination was conducted on 27th November 2007. 35.Both doctors opined that the Applicant was suffering from mild adjustment disorder with depressive mood as a result of the incident. They agreed that the Applicant was not suffering from psychotic depression, as suggested by the psychiatric centre of UCH. Both doctors recommended treatment. Dr. Singer opined that the Applicant’s condition would improve and the symptoms would become mild or residual after treatment. He assessed the Applicant to have suffered 10% loss of earning capacity before treatment and 3% after treatment. Dr. Law also considered the prognosis to be good. He assessed the Applicant to have suffered 3% loss of earning capacity. Both doctors considered 12 weeks of sick leave to be reasonable for such psychiatric condition. (d) The disputes on causation 36.In his closing submission, the Respondent’s counsel concedes that the accident has partly contributed to the Applicant’s psychiatric condition. He, however, disputes the causal relationship between the accident and the neck condition. He submits that:
37.First, I do not think Dr. Wong has theorized that the Applicant’s degenerative condition became symptomatic immediately after the accident. On the contrary, Dr. Wong was of the opinion that such degeneration can be asymptomatic. This is what Dr. Wong said in his first report:
38.Cervical spine degeneration does not happen overnight. My understanding of Dr. Wong’s opinion is that the Applicant was suffering from cervical spine degeneration before the accident. This is confirmed by Dr. Kwok of QEH-A&E who noted loss of lordosis at the cervical spine on the day after the accident. The accident has “further aggravated [the] pre-existing degenerative spine condition” of the Applicant in the sense that the accident has caused further injury to the neck which was already undergoing degenerative change. 39.Furthermore, the Applicant was symptom free before the accident. There is no evidence to suggest that the degenerative change has become symptomatic after the accident and caused the symptoms alleged by the Applicant and documented in the medical reports. That is why Dr. Wong doctor concluded that the accident “contributed to [the Applicant’s] persistent neck problem”. 40.Secondly, I do not agree that it is necessary for the Applicant to establish that his degenerative condition has become symptomatic as a result of the accident. What is more relevant, in my view, is whether the Applicant did suffer the alleged symptoms and, if so, whether such symptoms were caused by the accident. 41.In this regard, I am guided by the following judgment of Hunter JA in Lee Kin-kai, a patient by his father and next friend Li Wah v. Ocean Tramping Company Limited trading as Ocean Tramping Workshop, CACV 64/1989 at para.10-11:
42.It is common ground that the Applicant was indeed injured as a result of the accident. Dr. Yip of LKK Clinic and Dr. Kwok of QEH-A&E found tenderness immediately after the accident. 43.Dr. Chun said, from an orthopaedic point of view, that the Applicant should have recovered from such minor soft tissue injury within a week or two. Whilst the Applicant might have recovered from a medical point of view, that does not mean that he was free from the resultant symptoms such as pain. Pain can be very subjective. Sometimes it is difficult to medically determine the precise cause of pain. The Applicant was examined by various doctors at different hospitals and clinics. These doctors are specialists in orthopaedic and traumatalogy, physiotherapy and management of pain. There is a consistent and continuous documentation of neck pain and restriction in neck movement. In my view, it is unlikely that the Applicant could have fooled so many specialist doctors for so long. Although Dr. Chun considered that the Applicant might have magnified his symptoms at the joint examination (which opinion is shared by Dr. Wong), he did not go as far as doubting the existence of pain. 44.Furthermore, Dr. Singer and Dr. Law both opined that the Applicant was suffering from adjustment disorder with depressed mood. They used DSM-IV in their diagnosis. According to DSM-IV, adjustment disorder entails development of emotional or behavioral symptoms in response to identifiable stressor(s). Dr. Singer identified the physical symptoms caused by the accident such as neck pain and stiffness as one of the stressors causing such psychiatric condition. Although Dr. Singer considered there might be an element of exaggeration on the part of the Applicant, he nevertheless concluded that the Applicant had a core of genuine symptoms of adjustment disorder. There is also the recent attempt by the Applicant to commit suicide. In my view, all these confirm the fact that the Applicant has been suffering from the resultant symptoms from his neck injury caused by the accident. 45.I therefore reject Dr. Chun’s opinion that the Applicant has fully recovered from his neck injury. 46.Dr. Wong was of the opinion that cervical spine degeneration could be symptom free. Dr. Chun did not doubt such opinion. Prior to the accident, the Applicant did not suffer any symptom from degeneration. After the accident, he experienced restriction in neck movement and neck pain and such condition persisted. There is nothing to suggest that the degenerative change has become symptomatic after the accident and caused the symptoms experienced by the Applicant. 47.I therefore find, on a balance of probabilities, that the accident has substantially contributed to the Applicant’s neck condition. Having said the above, however, I accept that the severity of his neck condition may not be as severe as what the Applicant would have us believe. 48.There is one more matter that I need to address before I leave this question of causation. The Form 7 certified “upper limb twitching” as one of the resultant neck injury. The Applicant demonstrated what that is at trial. He says such symptom surfaced at the end of 2005 or early 2006 and intensified in cold weather. 49.I agree with the Respondent’s counsel that none of the treating doctors recorded such a symptom. Dr. Wong and Dr. Chun noted in their joint examination conducted on 2nd December 2005 that:
If such symptom was only developed after December 2005, there is no medical evidence linking it with the accident. The Applicant has not satisfied me that any upper limb twitching was caused by the accident. 50.All in all, I find that the accident has caused the Applicant’s neck and psychiatric condition but not upper limb twitching. What was the monthly earnings of the Applicant? 51.According to the list of earnings filed by the Respondent (which is agreed by the Applicant), the Applicant received $10,274.25 in the month immediately preceding the accident (i.e. October 2004). The list also sets out the earnings actually received by him between January and October 2004. The Applicant also testifies that he received $11,325.99 and $11,008.12 for November and December 2003 respectively. These payments were confirmed by entries in his bank passbook. The total amount received from November 2003 to October 2004 is therefore $120,876.77. 52.It is common ground that the amounts received by the Applicant were net of MPF contribution and the 5% employer’s contribution should be taken into account. Hence,
53.The Applicant submits that he received $5,000 from the Respondent on 28th January 2004 as bonus for the year 2003 and the sum should be taken into account in the above calculation. The Applicant points to an entry in his bank passbook in support of his contention. The Respondent denies having paid any bonus to the Applicant. In my view, the bank passbook merely shows that a sum of $5,000 was paid into the Applicant’s account. It does not reveal where the money came from or the purpose of such payment. The employer’s tax return filed by the Respondent with the Inland Revenue Department in relation to the Applicant for the year from 1st April 2003 to 31st March 2004 shows that no bonus was paid to the Applicant for the year. Furthermore, it is also the Applicant’s testimony that he was basically paid a bonus every year. This, again, is not apparent from the tax returns filed by the Respondent for the corresponding periods. The burden is on the Applicant to prove that the $5,000 he received was in the nature of bonus. I am not satisfied by the evidence before me that the $5,000 he received was bonus paid by the Respondent. 54.Pursuant to s.11(1) of the ECO, I adopt $10,815 as the monthly earnings, which is most favourable to the Applicant. What was the period of absence from duty necessary as a result of such injury? 55.The Applicant produces a bundle of sick leave certificates showing that sick leave was granted to him:
56.The Respondent’s counsel submits that the effect of s.10(2) of the ECO is rebuttable. He submits that not all the period of absence approved in Form 7 should attract compensation under s.10. 57.On the neck injury, he submits “there is good reason to believe that the Applicant’s persistent neck problem was independent of the injury caused by the accident.” He urges me only to allow the sick leave granted for the soft tissue or contusion injury sustained in the neck. Based on Dr. Chun’s assessment, he invites me only to allow 2 weeks of sick leave for the neck injury. 58.On the psychiatric condition, he says:
59.Section 10(2) of the ECO provides that:
60.On the neck injury, I have rejected Dr. Chun’s opinion that the Applicant has fully recovered from his neck injury two weeks after the accident and accepted that there is a causal relationship between the accident and the Applicant’s neck condition. The doctors who issued the sick leave certificates for his neck injury must have given due consideration to the Applicant’s condition. The Board approved the sick leave granted by the doctors and the Applicant’s orthopaedic expert also confirmed that such sick leave was reasonable. So there is a barrage of expert opinion supporting the sick leave granted for the neck injury. 61.On the psychiatric aspect, Dr. Singer identified the physical symptoms resulting from the accident (such as neck pain and stiffness) as one of the stressors. Other stressors identified by Dr. Singer are the disability associated with the physical symptoms of the injury (such as inability to cope with work demanding physical or mental effort) and the fear of inability to earn. Dr. Law merely opined that the Applicant’s mood had become depressed as a result of the associated psychosocial stressors without identifying what these stressors were. 62.There is a sufficient casual connection if the accident was a substantial contributing cause of the injury: see the above quotation from Lee Kin-kai. There is a continuous and consistent documentation of neck pain and stiffness by the treating doctors. Dr. Singer has confirmed that such physical symptoms was one of the stressors causing the psychiatric condition. Based on Dr. Singer’s opinion, I find the accident has substantially contributed to the Applicant’s psychiatric condition. 63.In any event, the submission that I should only allow such sick leave which is attributable to the accident is akin to the apportionment argument rejected by the Court of Final Appeal (“CFA”) in LKK Trans Ltd v. Wong Hoi Chung, FACV 14/2005. 64.In that case, the question considered by the CFA was: Where an employee is injured in an accident at work resulting in permanent incapacity which is caused both by that injury and by a pre-existing disease, should the court limit the entitlement to Employees’ Compensation by apportioning the incapacity attributable solely to the injury as distinct from the disease? The court held that there was no basis for requiring apportionment to reflect the existence of a pre-existing disease as a concurrent cause of the employee’s incapacity. 65.The leading judgment of the CFA was given by Ribeiro PJ. His Lordship noted the self-contained nature of the scheme in the ECO and considered that there was no provision in the ordinance to support the apportionment requirement: see para.37-40 of the judgment. His Lordship also pointed out that the statutory language of the ECO left no room for apportionment in fatal cases, cases of permanent total incapacity and cases of permanent partial incapacity involving scheduled injuries and that militated against apportionment: see para.41-47 of the judgment. Bokhary PJ also pointed out that apportionment would introduce delay and uncertainty which was inconsistent with the object of the ECO: see para.5 of the judgment. 66.It is true that the Respondent in this case is not arguing that the Applicant’s psychiatric condition was caused by any pre-existing disease. Nevertheless, I am invited to apportion the sick leave having regard to other concurrent causes contributing to such condition. I would respectfully adopt the reasoning of the CFA in declining to do so. 67.On the other hand, the Applicant’s counsel notes that the Board had only considered sick leave granted up to 22nd September 2007 in its assessment. The Board has apparently not taken into consideration sick leave subsequently granted to the Applicant on account of his psychiatric condition. There is a medical certificate issued on 2nd November 2007 (i.e. after the Board’s assessment) certifying that the Applicant had been an in-patient of the psychiatric ward of UCH from 23rd September to 2nd November 2007. She urges me to take such period into consideration and allow a total of 33 months and 15 days. 68.Section 10(5) provides that:
69.In Choy Wai Chung v. Chun Wo Construction and Engineering Company Limited, CACV 14/2000, Rogers VP has this to say on the application of s.10(5):
70.In the present case, all the sick leave claimed is supported by medical certificates. For sick leave granted prior to the its assessment, the Board has accepted all of them to be necessary. The Respondent has conceded, based on the opinion of Dr. Law, that the accident did contribute to the Applicant’s psychiatric condition. In those circumstances and given the purpose of the section, I shall accede to the Applicant’s request and allow 33 months and 15 days of sick leave. What is the Applicant’s loss of earning capacity permanently caused by such injury? 71.The Form 7 certified the Applicant’s loss of earning capacity permanently caused by the injury at 8%. In reaching that conclusion, the Board took into account the Applicant’s neck injury resulting in, inter alia, upper limb twitching. I have already ruled above that such conclusion is not supported by medical evidence. In expressing an opinion that the overall assessment of the Board was reasonable, Dr. Wong was going beyond his field of expertise as an orthopaedic surgeon. In the circumstances, the assessment of the Board cannot stand. 72.Insofar as the neck injury is concerned, I have explained that I prefer Dr. Wong’s opinion to that of Dr. Chun. Dr. Wong expressed that:
73.The Applicant was 44 at the time of the accident and is now about 48 years old. He is a university graduate. He ran his own business before and was a newspaper editor. Prior to the accident, he had been an inventory clerk with the Respondent for about 5 years. His duties included managing site materials, keeping of records, as well as doing paper work. Taking everything into consideration including the surveillance video and the physical condition of the Applicant in court, I assess the Applicant’s loss of earning capacity for his neck injury to be 2%. 74.Dr. Singer and Dr. Law both agree that the loss of earning capacity due to the psychiatric condition should be 3%. 75.I therefore assess the Applicant to be suffering from 5% loss of earning capacity as a result of the accident. What is the amount of medical expenses in respect of the medical treatment for such injury? 76.The Applicant produces a bundle of receipts evidencing medical expenses totalling $6,460. 77.The Respondent’s counsel objects to such amount and urges me to allow $1,000 only, given the fact that the neck pain was independent of the accident and that the accident had only partly contributed to the psychiatric condition. Given my findings above, I do not see any justification to deduct from the amount claimed. The amount of compensation 78.I therefore assess the compensation as follows:
79.This comes to 335,236. It is common ground that the Applicant has already received $4,696 from the Respondent. Hence, the final award is $330,540. Conclusion 80.For the above reasons, I allow the appeal against the Form 7 and enter judgment in favour of the Applicant against the Respondent. I assess the compensation payable by the Respondent under the ECO to be $330,540. Interest is awarded at half the judgment rate from the date of the accident to the date of judgment and thereafter at the judgment rate until payment. 81.There is no reason why costs should not follow the event. I make a costs order nisi that the Respondent do pay the Applicant the costs of these proceedings to be taxed if not agreed with certificate for counsel. The Applicant’s own costs is to be taxed in accordance with Legal Aid Regulations. Unless an application is made to vary this order nisi, the order shall become absolute 14 days after this judgment is handed down.
Ms. Lorinda C.W. Lau, instructed by Messrs. Kenneth W. Leung & Co. (assigned by D.L.A.), for the Applicant Mr. Andrew S.Y. Li, instructed by Messrs. Cheng, Yeung & Co., for the Respondent |
Cases cited in this judgment