TSUI LEUNG CHIU v. H & A DESIGN & CONTRACTING CO LTD

DCEC 573/2021

[2024] HKDC 266

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 573 OF 2021

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IN THE MATTER OF AN APPLICATION BETWEEN

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ASSESSMENT OF COMPENSATION

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INTRODUCTION

1.  This is a claim brought by the applicant, Mr Tsui Leung Chiu, for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”) regarding an accident that occurred on 27 July 2020 when he suffered an injury while at work.

PROCEDURAL BACKGROUND

2.  On 11 November 2022, Her Honour Judge Levy ordered that unless the respondent file and serve its answer within 42 days, interlocutory judgment be entered with compensation to be assessed. The respondent was given leave to file the applicant’s list of earnings within 28 days but thereafter the respondent was barred from adducing evidence to challenge the applicant’s alleged earnings.

3.  Furthermore, on 3 March 2023, her honour then also ordered that unless the respondent files its witness statement(s) on the matter of assessment of compensation within 28 days, the respondent shall be barred from calling any witness in this case.

4.  The respondent has defaulted on the aforesaid orders made by Her Honour Judge Levy and the hearing of this assessment has proceeded without any of the aforesaid documents. This court was satisfied that it was proper to proceed with the hearing of this assessment of compensation in the absence of the respondent.

BACKGROUND

5.  The applicant was employed as an electrician with some 20 years of such relevant experience and was aged 44 at the time of the accident.

6.  The applicant was employed by the respondent on 2 July 2020 at a daily rate of $1,500, there was no written contract of employment and the applicant was engaged on oral terms only. The applicant was assigned to work at the relevant construction site where every two weeks a certain Mr Chan paid in cash on behalf of the respondent the workers at the construction site (including the applicant himself) with an acknowledgment receipt when receiving such wages. It is the applicant’s case that but for the accident he would have been employed 26 days per month and thus earning $39,000 in total.

7.  The accident took place on 27 July 2020 when the applicant was holding in his right hand an electrical hand grinder without a safety shield that was provided by the respondent, the grinder’s electrical cable was accidentally kicked by another co-worker and thus cutting the applicant’s gloved left thumb. The applicant had worked for the respondent for less than one month when the aforesaid accident occurred.

8.  The applicant was taken to the Accident and Emergency Department of Ruttonjee Hospital where he was diagnosed with a 1 cm deep laceration of his left thumb proximal phalangeal joint. Thereafter the applicant was transferred to Pamela Youde Nethersole Eastern Hospital and underwent an operation and discharged but attended follow-up consultations at the specialist out-patient department. The applicant received both physiotherapy and occupational therapy. The applicant was granted 391 days of sick leave due to his left thumb injury. During this period, namely on 27 September 2020, the applicant suffered swelling in his left thumb and he attended the Accident and Emergency Department of Tseung Kwan O Hospital. As a result of continued stiffness, the applicant on 15 March 2021, underwent an adhesiolysis operation on his left thumb.

EARNINGS OF THE APPLICANT

9.  The applicant’s case on his monthly multiplicand is based on, inter alia, the Form 2 dated 10 October 2020 submitted by the respondent stating that the applicant worked 26 days per month and the applicant’s base salary was $1,450 per day with an additional $50 daily food allowance which gives a rounded out income of $39,000 per month.

10.  Additionally, an annexed letter to the witness statement of the applicant from a certain Mr 蔡 who apparently was an employee of the respondent stated that the daily wage of the applicant was $1,500.

11.  For the number of days worked, handwritten work attendance records, including the work records of the applicant, show that the applicant worked for some 22 days in the month of July of 2020, right up to and including 27 July 2020 which was the date of the accident. In fact, the handwritten work attendance records of the construction site where the applicant was employed was highly uniform in the employment of those workers (including the applicant).

12.  It can be seen that in the vast majority of the aforesaid instances of workers at that construction site, those workers worked the maximum amount of days possible from 2 to 27 July 2020 (1 July 2020 being a public holiday), namely from Monday to Saturday but excluding Sunday, meaning a 6-day work schedule for every week in July 2020 even up to the end of the month of July 2020. As such, for the vast majority of the workers at the construction site where the applicant worked, for the month of July 2020, they worked either 26 or 27 days.

13.  Counsel for the applicant, Mr Dexter Leung, submitted that the attachments to the answer in these proceedings from the aforesaid Mr Chan, previously a party to these proceedings as a respondent, should be considered in determining the wages of the applicant. However, the aforesaid Mr Chan is no longer a party to these proceedings and indeed the applicant was granted leave to discontinue the action against Mr Chan since 11 November 2022. As such, this court exercises its discretion to disregard the attachments to the pleading from the aforesaid Mr Chan in these proceedings.

CONSIDERATIONS TOWARDS CALCULATION OF MONTHLY EARNINGS

14.  Mr Leung in his submissions had very fairly presented to this court that where an applicant has been employed for less than a month, both sections 11(1)(b) and 11(2) of the Ordinance may be engaged depending on the relevant factual circumstances of the case.

15.  This situation of needing to consider which section of the Ordinance to apply is one commonly faced by the court and has arisen on various occasions such as in Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337 referring to the majority opinion of the Court of Appeal in 黎祥礦 v 盧景森 [2008] 3 HKLRD 643 referring the application of section 11(1)(b) of the Ordinance. Also presented to this court by counsel was the case of Chen Yong v Chiu Yuk Lin [2013] 2 HKLRD 337 referring to Yuen JA who had agreed with the reasoning of Cheung JA in Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643 when considering the factors for when to apply either sections 11(1)(b) and 11(2), in particular, the words for any “lesser period”.

16.  The evidence as already discussed in this particular case points clearly to the applicant (a skilled electrician of some 20 years’ experience) having worked a 6-day week up until his accident on 27 July 2020 for 22 days and (and indeed the vast majority of the workers employed at the relevant construction site) for the entire month of July 2020 for either 26 or even up to 27 days.

17.  Given the foregoing, this court comes to the finding that pursuant to section 11(1)(b) of the Ordinance that the applicant was earning $1,500 per day and would have worked 26 days in July 2020.

CALCULATION OF COMPENSATION

18.  The applicant was aged 44 at the time of the accident.

19.  This court accepts that according to the Certificate of Review of Assessment (Form 9) issued by the Employees’ Compensation (Ordinary Assessment) Board on 2 December 2021 (“Form 9”), the loss of earning capacity permanently caused by the injury is 2.5%.

20.  Compensation in the case of permanent total incapacity, section 7(1)(b) of the Ordinance provides as follows:

“(b) in the case of an employee of or over 40 years of age but under 56 years of age at the time of the accident, a lump sum equal to 72 months’ earnings or 72 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(b) specified in the first column of that Schedule, whichever is the less;”

21.  The Sixth Schedule of the Ordinance which was in force from 26 April 2019 to 14 April 2021, the maximum amount specified in the second column opposite section 7(1)(b) in the first column is $30,530. In view of the maximum amount as already stated, the applicant is awarded compensation pursuant to section 9 of the Ordinance in the amount of $30,530 x 72 x 2.5% = $54,954.

22.  Section 10(1) and (2) of the Ordinance provides that:

“(1) Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned, or a lump sum calculated accordingly, 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.

(2) For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

23.  Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120, Lam VP (as he then was) stated at §28 that:

“In the context of employee compensation claims, the weight to be attached to sick leave certificate is governed by s 10(2) of the Employees’ Compensation Ordinance … In a nutshell, the correct legal position is this: s 10(2) sets out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim. The burden is on an employer to rebut that presumption.”

24.  The sick leave certificates issued to the applicant granted sick leave due to his left thumb injury from 27 July 2020 (from the date of the accident) to 18 August 2021, totaling 387 days (upon further calculation it appears 391 days may have been a miscalculation). It was in the Form 9 where the Employees’ Compensation (Ordinary Assessment) Board agreed that this was the period of absence from duty necessary as a result of the applicant’s injury. The aforesaid procedural background to this case shows that the respondent has not adduced any evidence to rebut this conclusion.

25.  This court has come to a finding that the applicant’s monthly earnings at the time of the accident were $39,000 and accordingly the amount of compensation the applicant is awarded under section 10 of the Ordinance is $39,000 x 387/30 x 4/5 = $402,480.

26.  For compensation under section 10A(1) of the Ordinance, it is noted that:

“(1) Subject to this Ordinance, if, in any employment, personal injury is caused to an employee by accident occurring on or after the date on which this section comes into operation and arising out of and in the course of his employment his employer shall be liable to pay the medical expenses for the medical treatment in respect of such injury.”

27.  The applicant’s record of medical expenses uncontroversially show that the total amount expended on medical expenses was $4,804 which is the amount this court awards as compensation under section 10A of the Ordinance.

28.  The applicant received an advance payment totaling $266,760 (including sick leave payment of $264,600 and $2,160 for medical expenses) which is to be deducted from the applicant’s employees’ compensation.

CONCLUSION

29.  Total compensation payable to the applicant is therefore:

Section 9 compensation	$54,954.00
Section 10 compensation	$402,480.00
Section 10A compensation	$4,804.00
	___________
	$462,238.00
Less: Advance payment made	($266,760.00)
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Total:	$195,478.00

30.  I make an order that the employees’ compensation assessed and awarded to the applicant be in the sum of $195,478.

31.  The applicant is entitled to interest on the sum of $195,478 at half judgment rate from the date of accident, namely, 27 July 2020, to the date of assessment, and thereafter at judgment rate until the date of full payment by the respondent.

32.  I also make a costs order nisi that the respondent do pay the costs of these proceedings, to be taxed if not agreed, with a certificate for counsel. I thank Mr Leung for his helpful submissions and fair treatment of the evidence.

33.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.