DCEC530/2001 & DCEC929/2001
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES COMPENSATION CASE NO. 530 OF 2001 and
929 of 2001 (heard together)
|Chow Sin Chun
|Sheng Kung Hui Diocesan Welfare Council
Coram: H H Judge Carlson in Court
Date of hearing: 1, 2 March 2004
Date of Judgment: 3 March 2004
J U D G M E N T
1. These are separate claims for employee's compensation which I have heard together. The parties are common to both matters. The applicant, Mrs Chow Sin-chun, was employed by the respondents who are a government-subvented organisation, as a home help for the elderly and was injured on two occasions in the course of her employment with them.
2. The two accidents can be shortly described. The first in time was on 27 July 1999. She was travelling in a minibus owned by the respondents and driven by one of its employees when it was collided into from behind by a motorcar. At the time that this occurred, she was accompanying an old lady back to her home, having taken her to a clinic in Jordan Road. The lady had to be moved by wheelchair which was then secured into position with a seatbelt when the bus was in motion. The lady herself travelled in a seat on the bus.
3. When the collision occurred, the wheelchair, although secured in the manner that I have just described, was in no way locked in place. It was capable of a certain amount of movement. The collision caused the wheelchair to swing and strike the applicant on her kneecap. She instinctively grabbed the wheelchair to restrict its further movement with her left hand whilst holding onto her own seat with her dominant right hand. As she did so, she felt considerable pain in her left wrist which radiated upwards up her arm and into her shoulder. She described the sensation "as though my shoulder was being torn to pieces."
4. I will return to the medical aspects of this presently. Suffice it to say that she was removed to hospital and treated. She was given appropriate sick leave and subsequently returned to work in the course of which she was injured again. This was on 10 March 2000 when the applicant was working in the kitchen of the respondents' premises in Kowloon. Whilst she was reaching up to take down a stack of lunch containers and attempting to steady them with one hand, they started to topple which caused her to lose her balance and to fall onto the floor. The fall caused her to sprain her right wrist and injure her back and neck as well as aggravating the injuries that she had sustained the previous July.
5. The respondents have admitted liability in both cases and judgment has been entered against them. So the only issue that I need to decide is the amount of compensation that she should receive.
6. There are two certificates of assessment, one in each case which the applicant is content to accept. The first at page 50 of the bundle is dated 25 April 2003. It is a certificate issued by the Employees' Compensation (Special Assessment) Board which relates to the first accident in July 1999. The loss of earning capacity permanently caused by this injury is given as 21 per cent. The second certificate dated 4 September 2002 is that of the Ordinary Assessment Board relating to the accident in March 2000. The permanent loss of earning capacity caused by that accident is given as 8 per cent.
7. The nature of the contest before me is a very limited one. The applicant, represented by Mr Miller, is content to accept these assessments and she has decided to call no medical expert of her own. Mr Miller relies on the medical report of the government doctors and of Dr Chau, an orthopaedic surgeon from the Baptist Hospital, whose evidence I have read and have been referred to in some detail as well as the applicant's evidence who has told me of the effects of both accidents and her recovery up to the present time.
8. The respondents have appealed against the two certificates of assessment and in support of their appeals have called Dr Arthur Chiang FRCS, an orthopaedic specialist, to provide his expert opinion on the applicant's injuries and the effect of those injuries on her earning capacity. The only live issue therefore has been the hearing of these appeals. Helpfully, the parties are agreed as to the applicant's earnings at the time of the accidents as well as the appropriate formula for calculating compensation, having regard to the applicant's age and so forth.
9. All that I am concerned with is the section 9 award being the applicant's "compensatory claim." Under the certificate on the first accident, the applicant would be entitled to $11,115 x 72 months x 21 per cent = $168,058.80 together with interest on that figure, provided of course I uphold the percentage loss of earning capacity awarded to her by the Special Assessment Board.
10. On the second accident, the award would be $11,784 x 72 months x 8 per cent = $67,875.84 if I were persuaded that the Ordinary Assessment Board's 8 per cent loss of earning capacity is correct.
11. Dr Chiang has contended for 13 per cent loss of earning capacity on the first accident which translates to an award of $104,036.40 plus interest on that and only 2 per cent on the second which gives just $16,968.96 plus interest on that. So this is the range of disagreement.
12. Dr Chiang has given his evidence in a way that I found to be especially helpful. He has been mindful that his first duty is to the court in helping it to come to a conclusion on matters touching on his expertise. I desire to say this because so often experts, when giving their evidence, tow the party line and do not sufficiently appreciate their overriding duty to the court. Dr Chiang has demonstrated a keen understanding of what an expert's task should be before the court, and I wish to record my acknowledgement of that.
13. In saying this, I do not suggest that he has not fought his corner when he has considered that propositions put to him have not been correct whilst, at the same time properly, conceding as reasonable or tenable medical opinions expressed in the reports of the other doctors whose evidence is before me.
14. I now turn to the evidence relating to the first accident. The issue of the applicant's loss of permanent earning capacity needs to be judged in relation to...