Zeng Xuandao v. Liu Kam Yung

DCEC748/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 748 OF 2009

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Coram: Deputy District Judge R. Yu in Court (Open to public)

Date of Hearing: 16 September 2010

Date of Delivery of Judgment: 16 September 2010

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J U D G M E N T

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1.The Applicant was the employee of the Respondent and he was injured at work on 13 August 2007. He brought these proceedings to recover his employees' compensation.

2.The proceedings had been served on the Respondent, including the notice of hearing for today.  The Respondent did not file any Answer and interlocutory judgment on liability had been entered against the Respondent by

H H Judge Poon on 9 July 2010. The application before me is for assessment of the compensation to be awarded to the Applicant.

3.The Respondent was absent today.

4.Upon the undertaking by the solicitor for the Applicant to file affirmation of service of today’s hearing within two working days, I proceed with the assessment on an ex parte basis.

5.The heads of claims are as follows:

(1) For permanent partial incapacity;

(2) For temporary incapacity being 62 days of sick leave allowance; and

(3) For medical expenses in the sum of $1,215.

6.The Applicant was assessed by the Employees' Compensation Ordinary Board to have 1 per cent loss of earning capacity.  As the Applicant was not satisfied with the assessment, he appealed to this court against the assessment pursuant to section 18 of the Employees’ Compensation Ordinance.

7.There is only factual witness being the Applicant himself.  Leave was granted by H H Judge Poon on 9 July 2010 for the medical expert report prepared by Dr Wong See-hoi be adduced without call the maker.

8.The Applicant adopted his witness statement dated 23 October 2009 as his evidence-in-chief.  According to his evidence, he was born on 30 June 1970.  Since February 2005, he was employed by the Respondent as a delivery worker at the Cheung Sha Wan Vegetable Market with a daily wages of $200.  While there is no written contract, I accept his evidence that he was at the material time an employee of the Respondent.

9.The Applicant worked on every day from 7 am to 9 am for the Respondent earning a total of $6,000 per month.  He was paid monthly by the Respondent by cash and he had no record of his wages.  He also worked for other employers in the market after 9 am, and his total monthly earning was about $18,500.  But for this application, he is only relying on the monthly earning paid by the Respondent at $6,000 per month to calculate his loss.

10.On the day of the accident, the Applicant and his colleague opened the doors of the rear compartment of a medium goods vehicles, registration mark MB 4836, to unload trays of vegetables.  When the doors were opened, a metal rod fell from the compartment and hit the Applicant on his forehead.  He lost consciousness and was sent to Caritas Medical Centre for treatment.  Physical examination showed that a 4 cm laceration over forehead and he was admitted to a surgical ward for further investigation.  He was discharged on 14 August 2007.

11.After the accident, the Applicant has headache and dizziness.  He returned to Caritas Medical Centre for treatment and later he visited Cheung Sha Wan Jockey Club GOPC for treatment.  Sick leave was granted for the following period:  13 August 2007 to 18 September 2007; 20 September 2007 to 25 September 2007; 27 September 2007 to 29 September 2007; 2 October 2007 to 12 October 2007; 15 October 2007 to 18 October 2007, a total of 62 days.

12.For the injury, the Applicant was treated by Caritas Medical Centre and Cheung Sha Wan Jockey Club GOPC clinic. A total of $1,215 was paid for medical expenses.   He could only produce medical receipts for $1,115 but there is a certificate from Caritas Medical Centre confirming his total medical fees paid was $1,215.  I accept the Applicant’s medical expenses at $1,215.

13.After the treatment, the Applicant still had neck soreness.  He also had reduced memory which affected his work.  He used to work for about nine hours a day.  But after the accident, he could work three to four hours.  He had resumed work but he could only attend to clerical work such as taking orders from clients.  His reduced memory also affected his working efficiency.

14.According to the certificate of assessment dated 4 February 2010, the Applicant suffered 1 per cent loss of earning capacity.  He relies on the medical evidence of Dr Wong and submits that the assessment is wrong or on the low side.

15.Dr Wong See-hoi examined the Applicant on 9 June 2010.  Dr Wong opines that the Applicant has suffered soft tissue injury to his neck and head injury with post-concussion syndrome.  He opines that the Applicant has recovered satisfactorily from his head injury with no permanent impairment.

16.The Applicant complained that he still has intermittent and daily attacks of neck soreness after a day’s work, in the morning, on exertion and after prolonged sitting.  Dr Wong opined that the Applicant has reached maximum medical improvement.  The prognosis is good and he will probably have residual neck soreness chiefly on exertion like prolonged bending, overhead work, repeated turning, lifting and carrying heavy objects.

17.Dr Wong opined that the Applicant may resume his pre-accident as a casual worker with on and off attacks of neck soreness.  He is expected to have reduced work efficiency chiefly on repeated heavy lifting and carrying.

18.I first deal with the appeal.  The assessment was made by the Ordinary Assessment Board under section 16D of the Employees’ Compensation Ordinance.  Under section 18, the Court may confirm or vary any assessment made.  The test to apply for an appeal under section 18 is stated by Hunter JA in the case Chan Kit v. Sam Wo Industrial Manufactory [1989] 1 HKC 115.  His Lordship said:

“. . . the court’s jurisdiction appears to be appellate. But one has then to remember that these Boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons. So that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the Court is so minded; it is plain that a Court approaching this matter has really got to start afresh.”

19.This passage was quoted by Madam Justice Kwan in CACV42/2006.  I would adopt the same approach.

20.The injury suffered by the Applicant is not an injury specified in the First Schedule to Cap. 282.  I have to access the percentage of loss of permanent loss of earning capacity.  I have before me the opinion of Dr Wong and his comments on the working ability of the Applicant, which I have just referred to, in particular that the neck injury would affect his working capacity.  I heard the evidence of the Applicant on his neck and head problem.  While his earning capacity that may be affected by his injury would not be a serious one, I am satisfied on evidence that the assessment by the Assessment Board is on the low side.  I, therefore, revise the percentage of loss of earning capacity to 3 per cent.

21.On the issue of his monthly earnings, while he does not have the wage receipt, I accept his oral evidence that he earned $6,000 per month from the Respondent.

22.And for the sick leave, these are supported by sick leave certificates and have been assessed to be appropriate by the Assessment Board.  I would allow the claim in full.

23.Accordingly the award is: 

(i) Compensation for permanent partial incapacity at 3 per cent which is $17,280;

(ii) Compensation for temporary incapacity for 62 days of sick leave which is $9,920; and

(iii) Compensation for medical expenses which I allow at $1,215

24.The Respondent shall also pay interest on the above sum at half judgment rate from the date of the accident to today and thereafter at judgment rate until payment.  The Respondent shall also pay the Applicant costs of this application which I shall now consider further with counsel for the Applicant.

(Discussion on costs)

25.I am afraid the total claim of almost $120,000 is quite excessive.  I take into account the fact that counsels’ involvement is not really necessary in this case and some of the works are not necessary.  I would have a summary assessment of the costs at $68,000.

Mr Timon K L Shum, instructed by Messrs Huen & Partners, for the Applicant.

Respondent, absent.