IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO. 1386 OF 2007
Coram : Deputy Distirct Judge Osmond Lam in Court
Date of trial : 16th June, 2009
Date of handing down Judgment : 30th June, 2009
J U D G M E N T
1.On 20th November 2007 the Applicant made an application against the Respondent for compensation according to sections 9, 10 and 10A of theEmployees’ Compensation Ordinance, Cap. 282 (‘the Ordinance’).
2. According to the Certificate of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board on 10th March 2008, the loss of earning capacity permanently caused by the injury was assessed at 1%.
3. The Applicant appeals against that assessment and Notice of Appeal was filed on 13th March 2008.
4. Meanwhile, judgment on liability was entered against the Respondent pursuant to the Order of Her Honour Judge Marlene Ng dated 22nd February 2008. The Respondent was wound up under an Order for Winding Up on 22nd October 2008.
5. Pursuant to the Order of Master Lung dated 22nd December 2008, the Applicant was granted leave to proceed with his claim in this case.
6. Under section 18(3) of the Ordinance, where an appeal was made against the assessment of the Employees’ Compensation Board, thisCourt may confirm or reverse any decision, or confirm or vary any assessment of the Board or may substitute its own assessment andmay determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs as itthinks fit.
7. Whether this Court should confirm or vary 1% assessment of the Compensation Board in this case.
8. There are a number of relevant considerations in this case.
9. The Applicant was born on 13th August 1968 and thus aged 38 at the time of the accident which happened on 20th March 2007. Thus, a multiplier of 96 months should be adopted under the Ordinance.
10. The Applicant was employed as a truck driver by the Respondent at the material time and I have looked at the relevant record twelvemonths preceding the accident, he was earning a regular monthly salary, as evidenced from his witness statement dated 11th November 2008. I have also checked with attached Annexure 1 to his witness statement as to the monthly payments, I am satisfiedthat in the preceding 12 months prior to the accident, he took home HK$195,488.00. Thus, the working monthly salary figure can beadopted at HK$16,290.67.
11. The question then remains what percentage to be adopted for section 9 compensation in relation to loss of earning capacity.
12. When the Applicant was admitted on 20th March 2007 to North District Hospital A&E Department after his accident, he complained of right-sided low back pain and neckpain. He was found to have neck and back tenderness. No neurological deficit was detected on examination nor did X-ray and computerizedtomography show any fracture. He was diagnosed to have suffered from sprain neck and sprain back. The Applicant was treated conservativelyand discharged on 22nd March 2007. The Applicant was treated with physiotherapy at the same hospital and the total number of treatment sessions were eightand he defaulted on further appointment. When the Applicant was seen on 5th June 2007, two months after the injury, there was mild residual neck and back pain. His neck range of motion was full and therewas no cervical or back tenderness found. Straight-leg raising test was found to be full. In other words, he has fully recovered.
13. Dr. Johnson Lam saw the Applicant on 29th May 2008. However, Dr. Lam diagnosed the Applicant as suffering from soft tissue injury to the neck and back. At the time of hisassessment, the Applicant was still suffering from pain at the back and to a lesser extent of his neck. Dr. Lam said that the Applicantwould have difficulty to return to his pre-accident job that required prolonged driving and difficulty in working in jobs that requireddelivery/lifting and carrying heavy objects.
14. Further, Dr. Lam endorsed the duration of the sick leave issued to the Applicant.
15. In a letter dated 3rd June 2008, Dr. Lam assessed the amount of loss of earning capacity related to the back injury as 6% whilst the amount related tothe neck injury as 2%, making the total loss of earning capacity as at 8%.
16. When the Applicant gave evidence in the witness box, he said that since the accident and after the sick leave period, he had workedfor a company called 成邦中港貨運between August 2007 till February 2008, which was a similar kind of transportation company. However, due to his injuries he could only work for lesser hours and earning a monthly salary of HK$10,000 odd. Then from Marchtill July 2008, he had worked for a container company for four months as a driver working 12 hours day which earned him between HK$11,000to HK12,000 odd. In this job, he was required to work long hours and as his performance was not very good, he quited the job himself. But the Applicant said to me that he had passed the probation period of this job, meaning that his employer then did not think thathis injuries hampered his performance of the job. Thereafter, the Applicant had worked as a causal worker or as a driver, earningaround HK$9,000 to HK$10,000 per month. But he said he cannot work for long hours as before.
17. The Applicant’s submissions were that prior to this accident, he was happily and steadily employed by the same employer earningan average of HK$16,000 odd per month. That employment went on for some time. Now due to his injuries he did not earn as much andhis employment was anything but stable. There is a medical evidence from Dr. Johnson Lam suggesting a much higher percentage forcompensation under section 9 of the Ordinance than the 1% from Compensation Board and that the figure of 8% should be adopted.
18. I have looked at all the circumstances of the Applicant’s case. I have looked at the nature of his injuries as evidenced by themedical reports and I have also considered Dr. Johnson Lam’s detailed medical report. I have looked into the various employmentafter the Applicant’s injuries and the steady employment he enjoyed before his injuries. I do not consider his injuries as seriousas he claims but I am in no doubt that the Applicant has suffered a loss of earning capacity and he should be compensated.
19. Looking at all the circumstances of his case, I vary the 1% of the Compensation Board and adopt a 6% for total loss of compensation.
20. Accordingly, the compensation for loss of earning capacity is :
21. As far as I can see, there can be no dispute as to section 10 compensation as well as medical expenses. Thus, I shall allow thefigure of HK$39,532.03 and HK$1,020.00 respectively.
22. As a result, the interests calculation at half judgment rate of 4% per annum for the total sum from the date of accident to dateof judgment (i.e. 30th June 2009) will be as follows :-
23. Thus, I make the following order –
24. Accordingly, I shall make such an order with costs of the hearing be to the Applicant and the Applicant’s own costs to be taxedin accordance with the Legal Aid Regulations.
The Applicant : represented by Ms Florence Leung of Messrs. Yip, Tse & Tang, Solicitors.
The Respondent : Lead Young Sea & Air Freight Co., Limited, in person, absent