CHENG SAI KAM v. TUTTI LTD

DCEC 2285/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2285 OF 2012

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ASSESSMENT OF COMPENSATION

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Background

1.  This is a claim for employees’ compensation by Mr Cheng Sai Kam (“the applicant”) in respect of an accident to him on 10 September 2012 under the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

2.  The respondent company took no step to defend the claim and has all along been absent in all court proceedings and hearings.

3.  Judgment on liability was entered against the respondent on 17 January 2014.  This is the assessment of compensation.

4.  I am satisfied that sufficient notice of these proceedings and the assessment hearing has been given to the respondent. The assessment hearing proceeds in its absence.

5.  The applicant is the only witness who testifies in court.  He adopts the contents of his witness statement as his evidence in chief.

The accident

6.  The applicant was employed to work as a skilled decoration worker by the respondent.

7.  On 10 September 2012, whilst in the course of work and assisting a co-worker in fixing a glass door, the Applicant’s left foot was hit by the glass door which suddenly fell down.  As a result he sustained left foot injuries.

Injuries, treatment and disabilities

8.  The applicant attended Alice Ho Miu Ling Nethersole Hospital (“the Hospital”) for treatment immediately after the accident.  He was admitted to the Department of Orthopaedics & Traumatology (“O&T”) for further management.

9.  X-ray examination did not reveal any fracture or retained glass or foreign body.  The wound was explored on admission under local anaesthesia.  The extensor digitorum communis tendon to the left 4^th toe was found to be completely cut and repaired.

10.  There were complications of re-rupture of the tendon on 14 September 2012. It was repaired under local anaesthesia on the same day.  Short leg cast was applied.  He was put on heel walking with prescription of antibiotics.  He was discharged on 17 September 2012, after being hospitalized for 8 days.

11.  The applicant attended specialist outpatient orthopaedic follow up, and was referred for physiotherapy treatment.

12.  He attended about 8 sessions of physiotherapy treatment in the following 6 months, and an occupational working capacity assessment at the Hospital.

13.  Continuous sick leave was granted to the applicant for the left foot injuries from the day of the accident up to 1 August 2013, and thereafter from 2 September to 23 December 2013. 

14.  The applicant’s evidence is that despite treatment, he has suffered and continues to suffer residual left foot pain and stiffness.  His weight handling capacity is impaired.

15.  He has resumed light decoration work since December last year towards the end of the sick leave.

16.  He was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Medical Assessment Board”) to be suffering 2% permanent loss of earning capacity in respect of “left foot injury resulting in left foot pain, stiffness and scar” as set out in a Certificate of Assessment (Form 7) issued on 15 August 2013.  The sick leave granted up to 1 August 2013 was endorsed.  The assessment of 2% was maintained upon review on 19 December 2013 as set out in a Certificate of Review of Assessment (Form 9) issued on 2 January 2014.

17.  I accept the applicant’s evidence on the left foot injuries, treatment and disabilities.  He has and will continue to have difficulties and will suffer inconvenience and discomfort impairing his work capacity due to the permanent left foot disabilities. 

18.  I accept the sick leave granted by the treating doctors of the O&T of the Hospital from the day of the accident up to 23 December 2013, ie a total of 469 days.  There is no reason why I should discount the one month sick leave from 2 August 2013, albeit not supported by sick leave certificates, when he was not able to work and was waiting for the next follow up scheduled on 2 September 2013.

19.  I also accept the assessment of 2% permanent loss of earning capacity by the Medical Assessment Board for the purpose of this assessment.

Pre-accident earnings

20.  The applicant’s evidence is that he commenced working for the respondent in June 2008 as a skilled decoration worker.  He had not signed any employment letter or contract.  He specialized in painting work but also undertook other work assigned by a Mr Cheung who gave work instructions to him on behalf of the respondent.  

21.  His daily wage was $900.  He worked about 24 days a month from 9 am to 6 pm.  He took Sundays and alternate Saturdays off for his rest days.  He worked 25 days in August 2012, ie the month immediately preceding the accident, and earned $22,500.

22.  The daily wage of $900 is supported by a Form 2 Notice dated 24 September 2012 filed by the respondent with the Labour Department.

23.  The applicant’s evidence is that he received his wages from Mr Cheung on behalf of the respondent by cash cheques every half month (in the sum of about $11,000 odd).  He signed some receipts when receiving the cash cheques but was not provided with the receipts or copies.  He cashed the cheques from the banks and did not keep any records of receipt or payment. 

24.  He did not receive any sick leave payment from the respondent after the accident.  He had after the accident contacted Mr Cheung who was unable to locate Mr Or the person in charge of the respondent.  

25.  I find the applicant a frank and straightforward witness.  I accept his unchallenged evidence that he was earning $22,500 per month on average when working for the respondent prior to the accident and in the month immediately preceding the accident.  

Compensation

26.  The applicant was aged 52 at the time of the accident.

27.  On the basis of my above findings on (i) pre-accident monthly earnings of $22,500, (ii) reasonable sick leave of 469 days; and (iii) permanent loss of earning capacity of 2%, I adopt the calculations set out in the applicant’s closing submissions and assess employees’ compensation under the ECO as follows:-

28.  The applicant has not received any sick leave payment or reimbursement for paid medical expenses.

Order

29.  Employees’ compensation is assessed at the total sum of $316,883, with interest thereon at half judgment rate from the date of the accident to the date of assessment herein.  Further interest at judgment rate thereafter until payment.

30.  The respondent shall pay the applicant’s costs of the whole action, including all costs reserved, to be taxed if not agreed.  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.