TAI CHOI YAU v. YAU WAN HING formerly t/a 盈電網絡工程公司 AND ANOTHER

DCEC 2178/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2178 OF 2014

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JUDGMENT

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1. The applicant seeks employees’ compensation from the 1^st and 2^nd respondents for the injuries he claimed to have suffered during a work accident that happened on 17 August 2013 at G28 & G29, G/F, K11, Tsim Sha Tsui Kowloon (“the Accident”).

2. On 26 June 2015, HH Judge Leung granted an interlocutory judgment on liability against the 1^st respondent, leaving compensation to be assessed.  Therefore, the trial concerns the liability of the 2^nd respondent, and also the amount of employees’ compensation to be paid by the respondents (if the 2^nd respondent is also found by me to be liable).  

3. Although the 1^st respondent was absent at almost all previous hearings, he was present at trial without any legal representation.  He acknowledged receipt of the trial bundle and the applicant’s opening submissions, and did not have any objection to the trial proceeding as scheduled.

4. The 2^nd respondent has been absent at all hearings since 13 November 2015.  I have considered the affirmation of service filed by the applicant’s solicitors.  I accept that the 2^nd respondent was properly served with the notice of the hearing of the trial, the trial bundle and the applicant’s opening submissions.  I am satisfied that it had sufficient notice of date and venue of the trial, and I decided that the trial should continue in its absence.

5. After the close of evidence, Ms Kathy Chui, acting for the applicant, relied on her written opening as her closing submissions.  As requested by the 1^st respondent, I gave parties the right to file written closing submissions if they wished.  The 1^st respondent also indicated that it was not necessary for there to be an oral hearing for closing submissions.  In the end, parties informed the court that they decided not to file any written submissions.

The Accident

6. At the time of the Accident, the 2^nd respondent was engaged as the principal contractor for the renovation works carried out at Shop G28 & G29, G/F, K11 shopping mall, Tsim Sha Tsui (“the Shop”).  This was confirmed, and I so find, by the shopping mall’s management company by its letter to the applicant’s solicitors dated 19 December 2014.

7. As evidenced by a sub-contracting agreement bearing the letter head of the 2^nd respondent, and counter-signed by the 1^st respondent, the latter was engaged as a sub-contractor for the renovation works at the Shop.

8. There can be no dispute that the applicant was employed by the 1^st respondent as an electrician on a casual basis at the time of the Accident, as this was admitted by the 1^st respondent in the Form 2 he dated 15 November 2013.  It was the applicant’s first day of work with the 1^st respondent when the Accident happened.

9. According to the applicant, at around 4:00p.m. on 17 August 2013, he was asked by the 1^st respondent to install wire ducts on the ceiling inside the Shop.  The applicant stood on an A-ladder, and was around 10 feet from the ground.  Suddenly, the A-ladder moved, causing him to lose balance.  He thus fell onto the ground.

10. The Labour Department investigated into the Accident, and Mr Lo Sin Shing prepared an Accident Report on 5 December 2013.  Mr Lo interviewed the applicant, and the applicant gave a description of the Accident similar to his evidence in the present case.

Liability of the 2^nd respondent

11. The applicant argues that, since the 1^st respondent was already adjudged liable to pay employees’ compensation to him, the 2^nd respondent ought to be found liable to pay employees’ compensation as well, according to s.24 of the Employees’ Compensation Ordinance (Cap.282) (“the Ordinance”).

12. Since the 2^nd respondent adduces no evidence to contradict the applicant’s case on how the Accident happened, I find the applicant’s evidence credible and reliable, and the Accident happened as he described.  On my factual finding that the applicant was employed by the 1^st respondent at the time of the Accident, and the Accident happened when he worked for the same, I find the 2^nd respondent also liable to pay employees’ compensation to the applicant in relation to the Accident, as per s.24 of the Ordinance.

The applicant’s injuries

13. The applicant was sent to the Accident & Emergency Department of Queen Elizabeth Hospital (“QEH”) shortly after the Accident.  He complained of dizziness and nausea.  The attending doctor noted that the applicant did not have any neurological deficit.  There was mild tenderness over the applicant’s left shoulder, and over his left posterior lower ribs.  The applicant’s brain was unremarkable under a CT scan.

14. Subsequently, X-ray showed that the applicant sustained fracture at his left 10^th and 11^th ribs.  His condition remained stable, and he was discharged on 19 August 2013.  He was followed up at QEH afterwards.

15. The applicant was referred to physiotherapy at Yan Chai Hospital.  There was tenderness and muscle spasm over his lower back and left thoracic region.  The active range of movement for his trunk was 2/3 the normal for flexion and 1/2 the normal for extension.  Side flexion was only 1/2 the normal range.  Rotation was only 1/2 and 1/3 to the right and to the left respectively.  When the applicant was discharged from physiotherapy on 13 February 2014, he reported a 30-40% decrease in pain.

16. The applicant also received 18 sessions of occupational therapy at QEH.  The pushing and kicking capacity on his left side was reduced.

17. Despite the above treatment, the applicant still felt persistent left shoulder pain and weakness without much improvement.  He was referred to the orthopaedic specialists at QEH on 10 August 2015.  He was diagnosed to have a left supraspinatus tear and a superior labral tear from anterior to posterior.  He was also managed by the pain clinic at the same hospital.

18. In October 2015, the applicant obtained an MRI in the private sector, confirming the left supraspinatus tear and left superior labral tear.

19. A Form 7 was issued on 1 April 2015.  The applicant was assessed to have left shoulder pain, left chest wall pain, and post-concussional syndrome causing poor memory, dizziness and headache as a result of the Accident.  His loss of earning capacity was assessed to be 2.75%.  Sick leave was assessed to be necessary from 17 August 2013 to 24 February 2014 (192 days), and then intermittently for 112 days up to 28 January 2015.

20. In fact, the applicant was granted sick leave for a total of 316 days from the date of the Accident up to 14 April 2016.

The expert evidence

21. The applicant has lodged an appeal under s.18 of the Ordinance against the Form 7.  Thus, expert evidence was obtained from Dr Yu Yuk Ling and Dr Kwok Hau Yan.  The respondents did not appoint any expert to prepare any report.

22. Dr Yu prepared an expert report dated 27 July 2015 on the applicant’s neurological condition.  He interviewed the applicant on 24 July 2015.

23. It was Dr Yu’s opinion that the applicant suffered a mild head injury during the Accident, resulting in brief loss of consciousness and post-traumatic amnesia for about 1 hour.  He assessed the applicant to be suffering from post-concussional syndrome with headache, dizziness, impaired concentration, subjective impairment of cognition and memory, and irritability.  He opined that the post-concussional syndrome was probably permanent because maximum recovery usually took place within 6-12 months after the initial injury.

24. Dr Yu was of the view that the applicant should be able to resume working as an electrician with mildly compromised work capacity.  He assessed the applicant’s whole person impairment to be 2%, and his loss of earning capacity to be 2%.  Dr Yu further opined that the appropriate sick leave for the post-concussional syndrome should be 6 months.

25. Dr Kwok prepared an expert report dated 8 October 2015 on the applicant’s orthopaedic condition.  He examined the applicant on 12 August 2015.

26. Dr Kwok was of the view that the applicant’s complaint of left chest pain and left shoulder pain was consistent with the fractures at his left ribs and the left rotator cuff pathology sustained as a result of the Accident.  Although there was also some numbness in the applicant’s left upper limb, this was related to the mild compressive neuropathy over the cubital tunnel at his left elbow.  Dr Kwok opined that this was unrelated to the Accident.

27. Dr Kwok further opined that the applicant might have persistent left chest pain and left shoulder pain.  The pain would reduce the applicant’s ability to lift heavy items.  In his opinion, the applicant could only cope with work which would only require lifting of light to medium load, like a decoration worker or a security guard.

28. Dr Kwok assessed the applicant’s whole person impairment to be 6%, and his loss of earning capacity at 6% as well.  Sick leave was appropriate up to July/August 2014.

The applicant’s employment history

29. The applicant was 48 at the time of the Accident.  He is now 51 years old.

30. The applicant gave evidence at trial that he worked as an electrician for 30 years prior to the Accident.  He said he frequently needed to lift items of 30-100lbs in weight.  He also needed to kneel down and climb stairs for installation work.

31. It is the applicant’s case that he earned an average of $26,000.00 per month as an electrician for the 12 months prior to the Accident.

32. According to the information reported by the applicant to the Inland Revenue Department, he worked for 2 different contractors in the 2012/13 and 2013/14 years of assessment: Fu Shing Water-Elect Decoration Works Ltd (“Fu Shing”), and Cheung Shing Electrical Engineering Co (“Cheung Shing”).

33. For 2012/13 year of assessment, the applicant’s reported income with Fu Shing was $259,960.00, and $70,162.00 with Cheung Shing.  Thus, on average, he earned a total of $27,510.17 per month.  The applicant obtained a written confirmation from Fu Shing that he worked as an electrician between July and October 2012, and between February and March 2013.  He worked 26-28 days per month, and was paid $900.00 per day.

34. For 2013/14 year of assessment, the applicant’s reported income with Fu Shing was $90,490.00, and $41,200.00 with Cheung Shing.  Fu Shing confirmed that the applicant worked as an electrician between July and August 2013, and was paid $950.00 per day.  The applicant further stated that he worked for Cheung Shing as an electrician between April and May 2013.  Thus, for the 4.5 months prior to the Accident, the applicant’s reported income was, on average, $29,264.44 per month.

35. The applicant claimed that during each of the above periods, his job duties were similar to those ordered by the 1^st respondent, i.e. climbing up and down to install wire ducts, drilling holes with hand-held mechanical drillers on the ceiling, into the walls, or on the ground.

36. The income reported to the Inland Revenue Department is admissibleevidence of one’s earnings: Christopher Gordon Young v Lee Chu CACV 131/2003 (Le Pichon, Yuen JJA & Reyes J; 19 May 2004) at para.128-133.  In the absence of any contrary evidence, I have no hesitation to find that the applicant did earn the incomes reported to the Inland Revenue Department during the 2012/13 and 2013/14 years of assessment, up to mid-August 2014.

37. The 1^st respondent chose not to cross examine the applicant at trial.  The 2^nd respondent has also filed no evidence to contradict the applicant’s case.  Therefore, I accept the applicant’s evidence, and find that he earned at least $26,000.00 per month for the 12-month period prior to the Accident.

38. The applicant further stated that the he attempted to resume working as an electrician in late May and early June 2014.  However, he could not lift heavy items because of left chest pain and left shoulder pain, and had to depend on his colleagues for such work.  His employment was terminated after 10 days or so.  He only managed to work as a casual electrician at a reduced salary, and for fewer days each month since August 2014.  This is because he would have headaches after climbing up and down. There would also be difficulty for him to lift heavy items.  Hence, there would not be as much work as before that would suit him.  Employers would also pay him less than other able-bodied workers because of his disabilities.

39. Again, in the absence of any contrary evidence or cross examination from the respondents, I find the applicant’s evidence in relation to his ability to return to work after the Accident credible, and I so find them as facts.

The s.18 appeal

40. It is trite that, in an appeal under s.18 of the Ordinance, the court considers the loss of earning capacity and the length of reasonable sick leave afresh by taking all circumstances into account.  The correct approach has been stated by Hunter JA in Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115 at 118D-E:-

“… the court’s jurisdiction appears to be appellate. But one has then to remember that these boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons so that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded, it is plain that a court approaching this matter has really got to start afresh.”

41.    Further, in Kan Wai Yip v Everbest Port Services DCEC 383/2008 (HH Judge Ng; 03.02.2009) at §43, the learned Judge explained what would be the matters the court could take into account under a s.18 appeal:-

“… [loss of earning capacity] is a combination of various factors which include the injuries suffered by the employee and the resulting impairment as well as other matters of fact such as the employee’s age, education and background, his degree of difficulty in finding placement in the labour market and a comparison of the earnings that he is capable of with his impairment and the earnings he would have been able to make but for his injuries. These other factors concern matters of fact, and it is for the judge hearing the case as arbiter of fact to evaluate such factual evidence as well as the medical evidence and then come to his own assessment of the [loss of earning capacity].”

42. The applicant submits that the loss of earning capacity he suffered should be assessed at 8%.  This appears to be arrived at by adding the loss of earning capacity respectively assessed by Dr Yu and Dr Kwok.

43. Apart from the medical evidence, I take into account the applicant’s age, and his reduced work capacity after the Accident.  I agree with the applicant that his s.18 appeal should be allowed and the loss of earning capacity suffered by him should be assessed at 8%.  As to the reasonable length of absence from work, I accept the experts’ assessment, and find that the applicant could not work up to 8 August 2014.  In the Form 7, the applicant was only given the odd days off as sick leave after 8 August 2014.  Taking all the circumstances into account, I simply adopt the period of absence from duty certified in the Form 7, i.e. for a total of 304 days.

The applicant’s monthly earnings

44. The next issue to be decided is the applicant’s monthly earnings at the time of the Accident, for the purpose of calculating the compensation under the Ordinance.

45. The applicant submits that, since he was injured on the first day of work with the 1^st respondent, and he was only a casual worker paid daily, his monthly earnings for the purpose of the Ordinance cannot be calculated by using s.11(1)(a) of the Ordinance.  In addition, s.11(1)(b) cannot be used, because there is no evidence to show how many days in a month the applicant would have worked for the 1^st respondent but for the Accident.

46. I agree with the applicant that I should use s.11(2) of the Ordinance to calculate his monthly earnings at the time of the Accident.  In particular, he prays in aid the second half of s.11(2), by which the court is asked to look at the average monthly earnings of a person of similar earning capacity in the same grade employed in the same class of employment in the same district.  The second half of s.11(2) is adopted, because there is no evidence adduced to show how much other electrician(s) employed by the 1^st respondent earned at the time of the Accident.  It is thus impracticable to use the first half of s.11(2).

47. As held by Cheung JA in Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643 at para.11, the court can look at the applicant’s previous employment in a similar job as the one he had at the time of the Accident, because in nowadays Hong Kong, there is not much difference in the earnings of similar jobs in different districts.  In the present case, since the applicant’s job as an electrician for the 12-month period prior the Accident was similar to the work he was asked to do by the 1^st respondent, his income level with those previous employers can be taken into account under s.11(2).

48. Even though the 3 separate opinions given by the Court of Appeal in Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337 differed in which particular part of s.11 actually applied to cases like the present, I am of the view that the approach in Lai Cheung Kwong was not disputed by Or Wing Ming.

49. By applying s.11(2), I agree with the applicant that I should adopt the statutory maximum prevailing at the time of the Accident, i.e. $23,580.00, as the applicant’s monthly earnings to calculate the employees’ compensation he is entitled to.

The compensation

50. The applicant seeks compensation under ss.9, 10 and 10A of the Ordinance.

51. The applicant was 48 at the time of the Accident.  The suitable multiplier under s.9 is 72.

52. I find that the applicant is entitled to the following compensation under s.9 of the Ordinance:-

$23,580.00 x 72 x 8%

= $135,820.80

53. In my judgment, the applicant is entitled to the following compensation under s.10 of the Ordinance:-

$23,580.00 x 4/5 x 304/30

= $191,155.20

54. The applicant produced receipts to show that he incurred $4,205.00 as medical expenses.  I am satisfied that he is entitled to $4,205.00 as compensation under s.10A of the Ordinance.

Conclusion

55. I enter judgment against the 2^nd Respondent, and I further order the 1^st and 2^nd respondents to pay employees’ compensation as follows:-

Section 9	$135,820.80
Section 10	$191,155.20
Section 10A	$4,205.00$4,205.00
Total	$331,181.00

56. I award interest on the compensation at half judgment rate from the date of the Accident to the date of this judgment; and at judgment rate thereafter to the date of payment.

57. From the total compensation, a sum of $50,817.00 must be deducted as advance payment received by the applicant. Therefore, the net compensation payable by the respondents is $280,364.00, together with interest.

58. I also make an order nisi that the respondents are to pay the costs of the applicant in the present case, to be taxed if not agreed.  The applicant’s own costs are to be taxed according to the Legal Aid Regulations.

59. I thank Ms Chui for her valuable assistance.

60. The 1^st respondent may make an appointment with my clerk for a convenient time to have this judgment interpreted to him in Punti by the court interpreters.