CHU SHU WOR v. CHENG KAI CHAI t/a CARRY ENGINEERING CO

DCEC161/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 161 OF 2002

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J U D G M E N T

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1. This is a claim for compensation under the Employees' Compensation Ordinance, Cap. 282, Laws of Hong Kong ("the Ordinance").

2. In the beginning of the trial, I was given to understand that the parties had agreed on most of the issues in the present case except the following:

(i) whether the Applicant was employed by the Respondent at the time of the accident?

(ii) whether the court should adopt 10% or 15% loss of earning capacity for the purpose of calculating the amount of compensation under section 9?

3. I now turn to the first issue. The Applicant testified in the trial that he was employed by the Respondent at the time of the accident. He had fixed working hours. His wages, calculated on a daily basis, would be paid by the Respondent twice a month, and he would also get extra pay for his overtime work. Further, the Respondent's supervisor would arrange the work for the Applicant, and he had to perform the work under the supervision of the Respondent's supervisor. Lastly, except for some small tools such as screwdrivers, other machines and equipments for the work, such as electric drills, were provided by the Respondent.

4. In support of the Applicant's case, Mr Lee for the Applicant also relies on the contents of the Form 2 submitted by the Respondent, in which the Respondent admitted that he was the employer of the Applicant at the time of the accident. Further, the Respondent also gave him advance payment for his employment compensation in the sum of $90,000.

5. Quite surprisingly, the Respondent is not adducing any evidence to rebut the Applicant's allegations. Based on the evidence of the Applicant, I have no doubt in my mind that he was employed by the Respondent at the relevant time.

6. For the Respondent, Miss Luk tries to rely on the fact that the Applicant also worked for some other companies at the time of the accident, and this, according to Miss Luk, shows that the Applicant was only an independent contractor by that time. But with respect, there is nothing to prevent an employee to have more than one gainful employment at a particular time, and so the fact that the Applicant worked for some other companies at the same time does not necessarily mean that he was an independent contractor. Further, the Applicant does not fall within the three groups of persons excluded in the definition of "employee" under section 2, and I therefore find that the Applicant was an employee of the Respondent at the time of the accident.

7. Now I turn to the only issue on quantum. According to the assessment made by the Employees' Compensation (Ordinary Assessment) Board ("the Board"), the loss of earning capacity suffered by the Applicant is 10%. The Applicant was not satisfied with such assessment, and so he lodged an appeal against the same.

8. According to the medical opinion of the Applicant's expert, Dr Walter W K King, the Applicant's loss of earning capacity is estimated to be 15%. However, in Tang Shau-tsan v Wealthy Construction Company Limited, unreported, CACV 58 of 2000, the Court of Appeal has expressed reservation about the relevance of such sort of assessment made by medical practitioners. I will certainly bear such observation in mind when I make my assessment below.

9. In the submission of Mr Lee, the Board had not taken into account the limited movement of the Applicant's left thumb and the defect of vision of the Applicant's left eye (i.e. seeing black spots) in making the assessment. If the Board had taken into account these injuries, the Board should have arrived at an assessment of about 15%, which is the same as that made by Dr King.

10. According to the Certificate of Assessment issued by the Board, the two additional injuries relied upon by the Applicant were not stated in the Certificate. In such case, the court is entitled to assume that the Board had not taken into account these injuries in its assessment. According to the First Schedule in the Ordinance, the loss of vision of one eye would equate to 50% loss of earning capacity. Obviously, the vision defect suffered by the Applicant is much less serious in the present case. However, coupled with the limited movement of the left thumb, I am of the view that the additional 5% loss of earning capacity claimed by the Applicant is justified, and I therefore, despite the observation of the Court of Appeal in the Tang case, adopt 15% loss of earning capacity for calculating the compensation under section 9.

11. Except for the loss of earning capacity, the Respondent does not dispute the calculation of quantum as listed out in the Applicant's skeleton argument. Hence, the Applicant's claim can be assessed as follows:

12. I therefore grant judgment in favour of the Applicant for the said amount, and I will now listen to the parties' submissions on the issue of interest and costs.