Khan, Zubair v. Hung Kee Cleaning Environment Recycle Ltd

DCEC104/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 104 OF 2008

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BETWEEN

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Coram:   His Honour Judge Chow in Chambers (Open to public)

Date of Hearing:   8 October 2008

Date of Judgment:  8 October 2008

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J U D G M E N T

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1.From 19.6.2006, the Applicant was employed by the Respondent.  Sometime between 8 a.m. to 9 a.m. on that day, he was collecting rubbish from the Wellcome Supermarket at Tin Hau.  He got hold of a bag from the top and threw it into the truck which collected rubbish.  He suddenly felt a severe pain in his left index finger.  It became swollen and he felt very painful.  Immediately he went to Queen Mary Hospital for treatment.  He was admitted and remained there from 19.6.2006 to 27.6.2006.  He underwent an operation on his left index finger.

2.On 9.5.2008, the Employees’ Compensation (Ordinary Assessment) Board assessed the loss of  earning incapacity permanently caused by the injury to be 1 %.  The injury is the left-hand injury resulting in residual pain and stiffness. 

3.Dr Wong Kok Shing, on the other hand, assessed such incapacity to be 2 to 3 %.  In his report dated 27 May 2008 at paragraph 52, Dr Wong said: “As Mr Khan is very apprehensive to move his injured finger during this assessment, it is not possible to use the AMA Guides’ parameters for assessment of permanent impairment.  Judging from the orthopaedic pathology and previous medical records, he is estimated to have 2 - 3 % whole person impairment for residual pain, stiffness and weakness of his left index finger.”  I accept Dr Wong’s medical opinion.  I therefore allow the applicant’s appeal in this regard.

Compensation under section 9 of the Employees’ Compensation Ordinance

4.The Applicant was born in 1983, and is now 25 years old.  He was earning $8,000 per month prior to his injury.  So the compensation payable under section 9 of the Employees’ Compensation Ordinance (hereinafter referred to as “the Ordinance”) is $23,040 ($8,000 x 96 x 3 %).

Compensation under section 10 of the Ordinance

5.The Applicant was given sick leave from 20.6.2006 to 19.9.2006 and from 21.9.2006 to 8.10.2006.  The compensation payable under section 10 of the Ordinance is $22,400 ($8,000 x 4 ÷ 5 x 105 ÷ 30).  He has received $18,560 from the Respondent.  So the award to be paid under section 10 of the Ordinance is $3,840 ($22,400 - $18,560).  The compensation payable under section 10A of the ordinance is $1,913.

6.The total award is $28,793 ($23,040 + $3,840 + $1,913).  I order that the Respondent do pay within 14 days from today the sum of $28,793 to the Applicant with interest thereon, namely, at half judgment rate from 19.6.2006 up to today and from 9.10.2008 until satisfaction at judgment rate on the sum of $28,793.

(Discussion re costs)

7.The Respondent to pay costs of this action to the Applicant, to be taxed, if not agreed.  The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Mr Richard Mark Clement, of Messrs Massie & Clement, for the Applicant

Respondent, in person, present.