WEN YUANTIAN v. TSANG CHUNG KIU t/a WING TAT ENGINEERING CO

DCEC 2487/2020

[2022] HKDC 483

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2487 OF 2020

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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Introduction

1.  This is the assessment of compensation payable to the applicant under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap.282 (“ECO”). The respondent did not file any Answer in these proceedings, and Interlocutory Judgment on liability was entered for the applicant on 24 September 2021.

2.  The respondent was absent on the day of the hearing of the assessment on 14 April 2022. He has however been served with notice of the hearing, as well as a copy of the applicant’s opening submissions together with the hearing bundle. In the circumstances, I considered there would be no injustice caused to the respondent to proceed with the assessment of compensation in his absence. I therefore exercised my discretion and proceeded with the hearing under Order 35 rule 1(2) of the Rules of the District Court, Cap 336H.

The accident

3.  The applicant was the only witness to testify at the hearing. At the time of the accident he was aged 41 and was employed by the respondent as a construction site skilled worker. According to the applicant, he commenced employment with the respondent since 4 September 2018 under an oral agreement. He holds a Construction Workers Registration Card issued by the Construction Industry Council on 1 September 2018 which is valid up to the end of August 2023.

4.  On the day of the accident, ie 7 August 2019, he was working at a warehouse in a construction site at Mong Tseng Tsuen (DD129) in Lau Fau Shan, Yuen Long, New Territories. It was an open yard with metal shed structures where the applicant was assigned with repair works of some metal frames. According to the Accident Report dated 10 January 2020 compiled by the Occupational Safety Officer of the Labour Department, the applicant cut a steel frame into the appropriate length by using a floor-standing electric cutter on the ground, after which he climbed up and stood on a wooden A-ladder to perform electric arc welding to stabilize one side of the steel frame, followed by grinding it into the required length using a portable abrasive grinder whilst standing on the ladder. He was not wearing goggles. At about 10:00 am, whilst he was performing the grinding work, some sparks and particles of materials came out in the process and entered his right eye. He felt pain but nevertheless persisted in completing his work on that day. He thought the pain would subside, but during the next couple of days his pain persisted whilst he was working. Eventually, he decided to attend the Accident and Emergency Department of the United Christian Hospital on 9 August 2019, complaining of pain and discomfort as well as tearing in his right eye.

The injuries and treatment

5.  Examination revealed that there was a small foreign body in the cornea of his right eye. The conjunctiva was congested with a difference in bilateral visual acuity detected between his two eyes. He was referred to the department of ophthalmology, where he was treated by having the foreign body removed on 12 August and 19 August 2019. Further examination showed a scar on the cornea of his right eye.

6.  He later attended the Lam Tin Polyclinic on 16 September 2019, complaining of a blurred vision in his right eye. On physical examination, there was a corneal scar in his right eye. Visual acuity in that eye was poor and he was prescribed with eye-drops and was granted sick leave over a number of days from September to October 2019.

7.  Subsequently in November 2019 he started to attend the Ngau Tau Kok General Outpatient Clinic, complaining of a blurred vision in his right eye since his injury. He did not have pain in his eye by then, but on physical examination it was found that his right conjunctiva was mildly congested. He was prescribed with eye-drops and was granted sick leave for that day and also on subsequent visits to the clinic between November 2019 and January 2020.

8.  His condition was said to be static.

9.  The applicant later attended the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) on 10 December 2020 and according to the Certificate of Assessment (Form 7), he was assessed to be suffering from a permanent loss of earning capacity of 12.5% for his right eye injury resulting in right eye visual disturbance. Sick leave certified by the Board to be necessary as a result of the accident was from 10 August 2019 to 14 August 2019, and from 19 August 2019 to 5 April 2020. The applicant has raised no objection to the assessment stated in the Certificate of Assessment. As such, the applicant agrees to adopt 12.5% loss of earning capacity as assessed by the Board for the purpose of the Section 9 assessment.

The applicant’s earnings

10.  The applicant’s monthly earnings at the time of the accident should be calculated according to section 11(1) of the ECO which provides:-

“Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings-

(a) For the month immediately preceding the date of the accident; or

(b) Computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer, whichever calculation is more favourable to the employee.”

11.  The applicant commenced his employment with the respondent since 4 September 2018. According to his evidence, he worked from Monday to Saturday from 8:30 am to 5:00 pm and he was remunerated by way of cheques or cash cheques. His daily wage was agreed at $1,300. The date of payment of his salary each month may vary and no receipts were signed. He would also be paid overtime payment on occasions when he was asked to work from 7:00 pm to 8:00 am, and such overtime payment was also paid at approximately $1,300 for each day when such work was required.

12.  Ms Chui for the applicant invited the court not to take into account his earnings for the month of September 2018 (ie the month in which he first commenced his employment with the respondent) as he did not work for the whole month. During the ten-month period till the month preceding the accident, ie starting from October 2018 up to the end of July 2019, the applicant earned on average a sum of $28,065 per month, his working days ranging from 13 days to 28 days a month.

13.  The applicant has made handwritten records of his working days for each month during his employment in his notebook. He testified to the effect that he would record the date and place of work whenever he was required to work on a particular day. Where he did not specify any place of work in his records, it would mean that he was working at the respondent’s own premises, being a unit at No 12 Soy Street in Mongkok. He produced a summary of his working days in both his notebook and in his witness statement based on the records he made.

14.  He also produced the copy of a cheque issued to him by the respondent dated 15 June 2019 in the sum of $22,100 being his salary for the month of May 2019 (during which he worked for 17 days).

15.  According to his evidence, which I accept, the applicant earned on average a sum of $28,065 during the period from October 2018 to the end of July 2019. He earned a sum of $24,050 for the month immediately preceding the accident. Pursuant to section 11(1), the sum of $28,065 should therefore be adopted for assessing compensation under section 9, being the amount more favourable to the applicant.

Quantum of compensation

Section 9 – permanent partial incapacity

16.  The physical injury suffered by the applicant does not fall within the First Schedule to the ECO. As such, section 9(1)(b) of the ECO should apply:-

“9. Compensation in case of permanent partial incapacity

(1) Subject to subsection (1A), where permanent partial incapacity results from injury the amount of compensation shall be-

(a) in the case of an injury specified in the First Schedule…

(aa)……

(b) in the case of an injury not specified in the First Schedule, 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…”

17.  For the sake of completeness, subsection (1A) requires a court to consider the special circumstances of an employee in calculating the amount of compensation in the event that an assessment, without taking into account such special circumstances, of the employee’s percentage incapacity under section 9(1) would be substantially less. It is not the applicant’s case here that there are any such special circumstances.

18.  The applicant was born on 3 May 1978, and was 41 years old at the time of the accident. Therefore, under section 7(1)(b), the correct multiplier in this case for calculating the denominator sum for permanent total incapacity, which in turn is used for assessment of partial total incapacity under section 9(1), is 72 months’ earnings. Based on the loss of earning capacity certified to be at 12.5% by the Board, the compensation under this head is therefore:-

$28,065 x 12.5% x 72 = $252,585

Section 10 – compensation for temporary incapacity

19.  Section 10(1) of the ECO provides generally that where temporary incapacity results from the injury, the compensation shall be the periodical payments payable having regard to the probable duration, and probable changes in the degree of the incapacity. Such periodical payments shall be, or shall be at the rate proportionate to, “a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident”.

20.  The applicant however bases his claim under this head pursuant to section 10(2) which provides that a period of absence from duty certified to be necessary by, amongst other persons, an Ordinary Assessment Board, shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.

21.  Intermittent sick leave for the applicant form 10 August 2019 to 14 August 2019, and from 19 August 2019 to 5 April 2020, was certified by the Board to be necessary as a result of the injury, counting up to a total of 227 days (excluding 9 statutory holidays).

22.  Compensation for the said sick leave period is therefore calculated at $28,065/30 x 227 x 4/5 = $169,886.80.

23.  The applicant received a total sum of $31,263 from the respondent as advance payment for his absence from work after the accident by way a cheque dated 16 October 2019. Taking this into account, the net sum of compensation under this head should be:-

$169,886.80 - $31,263 = $138,623.80

Section 10A – medical expenses

24.  The applicant produced receipts in support of his claim for medical expenses in a total sum of $3,195, being the fees incurred in attending the various clinics.

Summary of compensation

25.  In summary, the compensation I assess to be payable to the applicant is therefore as follows:-

Section 9 compensation:	$252,585
Section 10 compensation:	$138,623.80
Section 10A compensation:	$3,195
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Total:	$394,403.80

26.  The applicant is entitled to interest on the sum awarded calculated at half judgment rate from the date of the accident to the date of this judgment, and thereafter at judgment rate until payment.

27.  The applicant shall have the costs of this assessment. I make an order nisi that the costs of this assessment shall be borne by the respondent, to be taxed if not agreed. As the applicant is on Legal Aid, her own costs shall be taxed in accordance with the Legal Aid Regulations.

28.  Lastly, I thank Ms Chui for her assistance.