Li Kam Ling v Tse Wai Keung

District Court
No. 394 of 2013
Deputy Judge Walker Sham
5 October 2015

Employees’ compensation – permanent partial incapacity – special circumstances of employee stipulated in s. 9(1A)(b) applied – compensation for permanent partial incapacity assessed under s. 9(1A) – quantum

X was injured while working as an automobile mechanic for D who ran a repair garage. On 14 July 2012, X was using a highly pressurised gun to inject grease via a plastic hose into a lorry, when the hose suddenly burst and grease punctured his left hand. X was aged 59 at the time of the accident. He had received only primary school education and had worked for many years only as a garage mechanic. X’s work was physically demanding. He used hand tools and lifted/moved objects weighing over 100–200 lbs. Joint orthopaedic experts agreed that X had sustained an injection injury/grease gun injury to the left hand and the residual impairment was severe. He had lost his fine motor skills and strength in his left hand. X was not fit to return to his pre-accident job or any work requiring a strong handgrip and dexterity or medium to heavy manual labour. Suitable alternative occupations included a security guard, for which the average monthly salary was HK$9,117 in September 2012. One expert estimated the total loss of earning capacity at 21 percent, another at 10 percent. X’s pre-accident monthly earnings were HK$16,900. Based on X’s left hand injury resulting in left hand scar and left thumb interphalangeal joint and metacarpophalangeal joint stiffness, the Employees’ Compensation (Ordinary Assessment) Board (the “Board”), assessed a permanent loss of earning capacity (“PLEC”) of 12 percent, which was subsequently reassessed at 15percent. X appealed under s. 18 of the Employees’ Compensation Ordinance (Cap. 282) (the “ECO”), seeking an assessment under s. 9(1A) of the ECO of the percentage of compensation which would have been payable in case of permanent total incapacity as was proportionate to the loss of earning capacity permanently caused by the injury in any employment which, having regard to the special circumstances set out in s. 9(1A)(b), the employee was capable of undertaking at that time. P’s injury did not fall within the First Schedule to the ECO.

Held, finding that D was liable to pay compensation to P under the ECO, allowing the appeal and assessing compensation for permanent partial incapacity under s. 9(1A), that:

  • The nature of X’s injuries, his qualifications, previous training and experience constituted the “special circumstances” stipulated in s. 9(1A)(b) of the ECO.
  • A post-accident monthly salary as a security guard of HK$9,117 involved a 46percent actual reduction in earnings [(HK$16,900 – HK$9,117) ÷ HK$16,900 x 100%], which was significantly more than the 15 percent loss of earning capacity assessed by the Board. In the circumstances, the Paper Mills formula would be applied and the appeal allowed by substituting 15 percent with 46percent pursuant to s. 18(3) of the ECO. Under s. 7(1)(c) of the ECO, the compensation for permanent total incapacity resulting from the injury, in the case of an employee aged 56 or over at the time of the accident, was a lump sum equal to 48 months’ earnings or 48 times the amount specified in the second column of Sch. 6 opposite s.7(1)(c) in the first column, whichever was less. Thus here, the award under s. 9 was HK$373,584 [(HK$16,900 – HK$9,117) ÷ HK$16,900 x HK$811,200].

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