Lau Kwok Ming v. Extra Billion Investment Ltd

DCEC 1567/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1567 OF 2008

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Coram  :  Her Honour Judge Mimmie Chan in Court

Dates of hearing  :  22 & 23 December, 2009

Date of handing down Judgment  :  20 January, 2010

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JUDGMENT

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Background

1.This is a claim for employees compensation brought by Mr. Lau relating to an accident on 11 December 2007.  It is not disputed that Mr. Lau was employed by Extra Billion Investment Ltd. ("Employer") and was, in the course of his employment, driving a public light bus on Tuen Mun Road, when he was involved in a serious accident. As a result, Mr. Lau sustained multiple injuries. The Employer does not dispute liability, and the only issue for determination at trial was the amount of compensation payable to Mr. Lau under the Employees' Compensation Ordinance ("Ordinance").

2.Mr. Lau was assessed by the Employees' Compensation (Ordinary Assessment) Board ("Board") in June 2009. According to the Certificate of Assessment issued by the Board on 8 July 2009 ("Certificate"), Mr. Lau suffered multiple injuries resulting in colostomy, fracture in the right tibial plateau, scarring and pain in both legs, and left peroneal nerve injury with weakness. The period of sick leave certified to be necessary as a result of the injury was from 11 December 2007 to 3 April 2008; 13 June 2008 to 11 July 2008; 30 March 2009 and 18 May 2009. Mr. Lau's loss of earning capacity permanently caused by the injury was certified to be 17 %.

3.Mr. Lau appeals against the decisions and assessment under the Certificate.

4.The parties are in agreement that Mr. Lau’s average monthly salary at the time of the accident was $9,866.67 and that periodical payments in the total sum of $138,928.5 have been paid to Mr. Lau. The parties further agree that the compensation payable under s.10A of the Ordinance is $7,607.

5.The dispute between the parties focuses on:

(1)   whether compensation should the assessed under s.9 (1A) of the Ordinance; and

(2)   the length of the period of sick leave in respect of which Mr. Lau is entitled to claim payment under the Ordinance.

The amount of compensation payable

Section 9

6.According to the Certificate, Mr. Lau was assessed to have suffered 17 % permanent loss of earning capacity. 

7.Mr. Lau was 62 years old at the time of the accident. He had lived in Hong Kong since he was 10 years old. He had only received several years of primary school education in Macau. He had been working as a minibus driver for over 10 years at the time of the accident. Before that, he had been working as a professional driver.

8.Mr. Lau complains that as a result of the accident, he suffers from weakness and tightness in the left lower limb after walking for about 30 minutes. He also claims that there was intermittent pain over the left knee and the lateral side of the leg which increased with prolonged walking, and numbness in the left leg and left foot.  Mr. Lau also complains of pain in the right knee, with a slight increase after prolonged walking for about 30 minutes.

9.According to Dr. Johnson Lam and Dr. Lau Hoi Kuen who jointly examined Mr. Lau on 4 August 2009, Mr. Lau had left lower limb neurological injuries involving the tibial and peroneal nerves. The fracture in the left femur had united in good alignment, with mild stiffness in the left hip. The overall alignment of the right tibial plateau was acceptable, with mild flexion contracture of the right knee joint. Dr. Lam considered that although Mr. Lau had partially recovered from his neurological injuries, the residual pain, stiffness and disabilities in the left lower limb of which Mr. Lau complains were expected.

10.According to the results of the joint examination conducted on 4 August 2009, Mr. Lau appeared to have regained full power in his right knee, right ankle and right big toe.

11.In the opinion of Dr. Lau, the residual pain in Mr. Lau's left thigh and right knee should not be severe as the left femoral and right tibial fractures had healed well. Dr. Lau also considered that Mr. Lau had a satisfactory recovery from the nerve injury of his right leg. In Dr. Lau's opinion, Mr. Lau's walking tolerance should be better than what he had claimed, and that his ability to climb stairs should not be much worse than persons of the same age. Dr. Lau considered that the stiffness in Mr. Lau's left knee is due to degenerative arthritis of the knee joint, which is expected for a person of his age.

12.As a result of the accident, Mr. Lau had aortic dissection and after surgery, he had a colostomy for faecal diversion. No expert opinion was rendered as to the effects, if any, of the colostomy and the aortic dissection on Mr. Lau. Dr. Lau and Dr. Lam confess that these are beyond their expertise.

13.As a minibus driver, Mr. Lau used to work for about 6 to 7 days a week, for about 10 hours a day.  Both Dr. Lau and Dr. Lam agree that Mr. Lau should not be able to return to his pre-accident job as a minibus driver as this required long hours of working. Further, as there is no automatic gear in minibuses, Mr. Lau would have difficulty in using the left leg to control the clutch.

14.However, both doctors agree that Mr. Lau should be able to work as a chauffeur to drive private cars, as such jobs are usually less intensive, and would allow Mr. Lau to have more rest between driving trips.

15.Since Mr. Lau had a colostomy as a result of the accident, he has a wound over the abdomen, and currently needs to use a small bag over the wound to assist in faecal diversion. Dr. Lam observed that there may be an odour which may make it difficult for Mr. Lau to find a job as a chauffeur as the doctors advised. Dr. Lau does not appear to agree with Dr. Lam's comment, as he pointed out that the design of the bag is sufficiently advanced so as not to pose any difficulty for Mr. Lau in working as a chauffeur. Dr. Lam and Dr. Lau agree that a surgical expert is best qualified to express an opinion on this, but no such expert opinion has been proffered at trial to express a view on the design or any defect of the bag which Mr. Lau is required to use.

16.When Mr. Lau gave evidence in court, the use of the bag in question did not appear to pose any difficulty for him in terms of sitting in court to give evidence, nor to create any obstacle for him in any other way. The bag was hidden under Mr. Lau's clothing and its use was not noticeable.

17.Mr. Lau himself considered that he should be able to return to work as a chauffeur of automatic cars. Because of the weakness in his left limb, he would have difficulty in using and controlling pedals with his left foot, but Dr. Lam confirmed, and Mr. Lau agreed, that he would be able to use his right foot to control pedals like the accelerator or the brakes. However, as Mr. Chung who appeared for Mr. Lau was quick to point out, Mr. Lau had never driven a vehicle since the accident. Nor would he be able to use a left foot brake, if there was one in the vehicle which he had to drive.

18.Mr. Chung argues for Mr. Lau that as Mr. Lau's injuries are not specified in the First Schedule to the Ordinance, the formula adopted in the case of Hong Kong Paper Mills Ltd. v. Chan Hin Wu [1981] HKLR 556 and in Lui Kwong-yan v. Shui Hing Decoration Works & Anor [1993] 1 HKLR 168 should be applied in assessing the compensation payable to Mr. Lau.

19.I do not agree that just because Mr. Lau's injuries are not specified in the First Schedule, then the Paper Mills formula automatically applies.

20.Section 9(1) (b) of the Ordinance provides that, in the case of an injury not specified in the First Schedule, the compensation payable shall be "such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time", provided that (under paragraph (ii) of the proviso) the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentage specified in the First Schedule and to the Note thereto.

21.Leaving aside for the moment the effects of the fracture of Mr. Lau's left femur and right tibial plateau and the neurological injuries in his left lower limb, Mr. Lau’s major residual incapacity is related to the colostomy. In the First Schedule, impairment of anorectal function results in loss of earning capacity of a range from 0% to 25%. Limited voluntary control of anorectal function results in a loss of earning capacity of 0% to 7%, and loss of voluntary control of anorectal function results in a range of 8% to 25%.

22.From the fact that Mr. Lau can go about his daily activities with only the use of the small bag , it does not appear that Mr. Lau's impairment would fall within the more serious end of the range. It also appears from the joint report that Dr. Lam suggests that closure of the colostomy is possible. Bearing in mind the additional effects of the injuries to Mr. Lau's lower limbs, the 17% loss of earning capacity as assessed by the Board which falls within the range of assessment made by Dr. Lam and Dr. Lau of respectively 24% and 13%, I consider that 20% total loss of earning capacity would be comparable to the range of percentages specified in the First Schedule.

23.I am not satisfied on the evidence that there are special circumstances existing in Mr. Lau's case which justify the adoption of the Paper Mills formula pursuant to s.9(1A) of the Ordinance. According to the joint report, and in the absence of any further expert opinion from a surgical expert to support Dr. Lam's reservations about whether Mr. Lau would have difficulties finding a job by virtue of his use of the colostomy bag (which Dr. Lam accepts he is not qualified to give an expert opinion on), it would appear that Mr. Lau should be able to work as a chauffeur, and not just as a part-time general cleaner earning $2,500 a month, as Mr. Chung suggests to support the use of the Paper Mills formula.

24.Mr. Chung further argues that objectively, it would be difficult for Mr. Lau to find any employment by virtue of his age. Even if this was true, it would not be caused by the accident, but by Mr. Lau's age.

25.For the above reasons, I am only prepared to award damages under s.9 on the basis of 20% loss of earning capacity, i.e. $9,866.67 x 48 x 20 % = $94,720.03.

Section 10

26.The Certificate certifies a period of absence from duty of 145 days. Mr. Lau’s appeal extends to the period of absence certified by the Board.

27.Mr. Chung argues that according to the medical report dated 26 August 2008 issued by Dr. Sha of the Tuen Mun Hospital ("Hospital"), to which Mr. Lau was admitted immediately after the accident and where he received treatment and further management, Mr. Lau was given sick leave from the date of the accident on 11 December 2007 to 11 June 2008. The period of leave from 3 April 2008 to 11 June 2008 was for some reason omitted from the Certificate of the Board issued on 8 July 2009. Mr. Chung argues that the additional period of 69 days, from 3 April 2008 to 11 June 2008, should be taken into consideration when assessing damages under s.10.

28.Section 10(2) of the Ordinance provides that for the purposes of s.10, a period of absence from duty certified to be necessary by a medical practitioner or the Board shall be deemed to be a period of total temporary incapacity, irrespective of the outcome of the injury.

29.There have been many cases decided on the effect of s.10 (2) of the Ordinance. In the case of Sin Fu Yau v. Wong Po Kee Ltd. [2007] 1 HKLRD 159, Deputy Judge Anthony Chow carefully considered these decisions and came to the view that, bearing in mind the object of the Ordinance which is to provide a no-fault scheme aimed at providing quick financial relief to employees with certainty, in the absence of fraud, the presumption under s.10(2) of the Ordinance is irrebuttable.

30.There is no suggestion of fraud, but the challenge of the period of sick leave in this case is slightly different to the type of challenge in Sin Fu Yau and other cases. Mr. Lau claims that the period of 69 days certified by the treating doctors at the Hospital to be the period of sick leave granted to Mr. Lau, and as stated to be true by Dr. Sha of the Hospital in the medical report issued by the Hospital on 26 August 2008, should be included in the period of Mr. Lau's total temporary incapacity, although not so certified by the Board. The Employer claims that this period should be excluded as it was not covered by the Certificate. It is not known why the Board did not include the period of 69 days in the Certificate: whether it was an accidental omission, or deliberate.

31.Even if the decision of Sin Fu Yau is followed, the period of 69 days of sick leave is certified by Dr. Sha of the Hospital. That itself may constitute an irrebuttable presumption by virtue of s.10 (2) of the Ordinance, in addition to the period of 145 days covered by the Certificate. Since the Certificate does not mention the period from 3 April 2008 to 11 June 2008, the Certificate of the Board and the certificate of Dr. Sha are not totally contradictory on their face.

32.There is also a helpful decision of Deputy Judge Frederick HF Chan in the case of Chu Yee Man v. Chuen Kee Construction Company Limited DCEC 1058 of 2005, 23 October 2008, in which the Court of Appeal decision in Tsang Wong Tong v. Tennille Decoration & Design Ltd. CACV 42/2006, 10 October 2006 on the correct test to apply for an appeal brought under s. 18 of the Ordinance is highlighted. As reiterated by Madam Justice Kwan, on such appeal, the jurisdiction of the court is appellate and the court approaching the matter has to start afresh from the evidence, since the Board keeps no record of the evidence it has considered and gives no reasons for its decision.

33.Adopting this approach, as guided by the Court of Appeal, when dealing with Mr. Lau 's appeal against the Certificate, I accept on the entirety of the evidence that Mr. Lau was absent from work during the period from 3 April 2008 to 11 June 2008, as a result of his injuries. According to the Medical Certificate issued by the Hospital on 4 March 2008, Mr. Lau was required to follow up on his treatment at the Hospital on 3 April 2008. Mr. Lau claims that he had diligently attended the Hospital for treatment throughout, in accordance with the doctors' advice. This is supported by the receipts produced by Mr. Lau relating to his daily visits to the Hospital during the period from 3 April 2008 to 11 June 2008.  It would appear from the evidence that Mr. Lau was still receiving treatment at the Hospital during this time. Mr. Lau's evidence is that he was not able to work throughout the entire period of his sick leave. Further, there is a report and certificate from the physiotherapist at the Hospital that Mr. Lau was receiving physiotherapy at the Hospital from 16 April 2008 to 17 June 2008.

34.In my Judgment, therefore, I accept that the total period of Mr. Lau's incapacity is 214 days, as covered by the Certificate and the additional period of absence certified by the Hospital.

35.Even if Dr. Lam's expert opinion on the length of the appropriate sick leave is admissible to rebut the presumption in s.10(2), in the light of all the evidence and particularly the state of Mr. Lau's recovery, I do not agree that Mr. Lau is entitled to a total period of one year as sick leave.

36.I therefore find that the compensation payable to Mr. Lau under section 10 is: $9,866.67/30 x  214 x 4/5 = $56,305.80.

Section 10A

37.As agreed, I allow Mr. Lau’s claim for medical expenses in the total sum of $7,607.

Conclusion

38.The total compensation payable to Mr. Lau is:

39.Mr. Lau is entitled to interest on the sum of $19,704.33 at half judgment rate from the date of the accident, i.e. 11 December 2007, to the date of judgment. I will make an order nisi that Mr. Lau is to be paid the costs of the action, to be taxed if not agreed. Mr. Lau's own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr. Henry Y.H. Chung of Messrs. Yip, Tse & Tang (assigned by DLA) for the Applicant

Mr. Arthur H.W. Lam, instructed by Messrs. Cham & Co. for the Respondent