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DCEC 2750/2015
[2021] HKDC 99
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO. 2750 OF 2015
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| IN THE MATTER OF AN APPLICATION BETWEEN: |
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LAW CHING YU (羅靜如) |
Applicant |
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and |
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CHENG KWOK WING LEO trading as
SECURITY CONSULTANT & ENGINEERING CO.
(鄭國榮經營保安顧問工程公司) |
Respondent |
Coram: His Honour Judge Harold Leong in Court
Date of Hearing: 17 December 2020
Date of Judgment: 27 January 2021
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JUDGMENT
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1. This is an employees’ compensation claim.
2. The Applicant’s case was that he was employed by the Respondent for installation work for a security alarm system at the outer wall of Room 501, Ocean View Court, 21-27A Chatham Road South, Tsim Sha Tsui, Kowloon on 2 April 2014 when he fell off a ladder and suffered a fracture of the left elbow.
Liability
3. The Respondent, acting in person, had raised various objections in his Amended Answer but did not attend the hearing.
4. These objections could be summarised as follows: i) denial that the Applicant was an employee of the Respondent at the material time of the accident or at any time; ii) the accident was brought on by the Applicant’s inappropriate (and dangerous) behaviour which was outside the scope of his employment and not connected with the Respondent’s trade; and that iii) the Applicant was performing the work without a valid permit in breach of the Security and Guarding Services Ordinance, Cap 460.
5. For objection i), I note that there are various documents enclosed in the Trial Bundle including a Form 2 with the company chop of the Respondent dated 30 April 2014 (Trial Bundle pages 192 to 196) and a letter with the letterhead of the Respondent dated 7 April 2014 with the company chop and signed by a “Mr. Leo Cheng” (being an “Authorized Signature”) which identified the Applicant as “an employee of our company” (Trial Bundle page 20).
6. The Respondent did not dispute these documents. I would accept that these are genuine documents and therefore, there are no grounds for objection i).
7. As for objection ii), this court has given an “unless order” for the Respondent to file and serve the witness statements by 16 August 2019. This has not been complied with and so no evidence has been adduced before the court regarding the alleged inappropriate behavior of the Applicant at the time of the accident etc. As such, objection ii) must also be rejected by the court.
8. As for objection iii), even if it can be established that the Applicant does not possess the requisite permit under the said ordinance, the employer cannot rely on a defence of illegality to escape from the liability under the Employees’ Compensation (Section 2(2) of Employees’ Compensation Ordinance Cap 282).
9. Having regard all the circumstances of this case, this court holds that the Respondent should be held liable.
Compensation
10. The Applicant claims that he was earning HK$18,200 for the month immediately preceding the accident, and the same amount on average during the 12 months prior to the accident but “subject to discovery” (Trial Bundle page 4).
11. During the hearing, the Applicant gave evidence that he would not dispute that he had received a total sum of HK$69,000 from the Respondent as salary between 1 April 2013 and 31 March 2014 (as stated in the Respondent’s letter: Trial Bundle page 254).
12. The Applicant also claimed that he was paid a daily salary of HK$650 and HK$325 for half day’s work.
13. The Applicant stated that he had also worked for other contractors. He has produced his own handwritten records of work which, in addition to recording work for the Respondent, there was also work for “Tony” and “Tim” (Trial Bundle pages 245 to 253).
14. The Applicantfurther claimed that he kept work records only when he did not get paid at the end of the day. For the Respondent who paid irregularly, he kept full records. However, for Tony and Tim, as they mostly paid him at the end of the day, he did not keep all the records but only records of those work he did not get paid immediately. As such, he should have worked more days than recorded.
15. On perusing such records, I find that the records show that the Applicant has worked 150 days for the Respondent between 1 April 2013 and 31 March 2014. This means that his daily wage should be HK$69,000 / 150 = HK$460.
16. The records also show that the Applicants has worked a total of 198.5 days during the same period.
17. During the hearing, the Applicant gave evidence regarding the nature of his work and said that each job may take 1-4 days depending on the complexity. He might have 8 to 10 jobs in a busy month, just 2 jobs in a quiet month, and 4 to 5 jobs in an average month.
18. If we take 2.5 days as the average length of a job, the Applicant would work 5 days on a quiet month and 20 - 25 days on a busy month, with an average month working about 10 - 12.5 days.
19. The Applicant’s handwritten records actually show an average of about 16.5 days of work per month between 1 April 2013 and 31 March 2014. This is comparable (in fact there are more recorded work days) to the Applicant’s description of the nature of his job. Therefore, I find it unlikely that he has kept incomplete records for work with “Tony” and “Tim” (thus that he should have worked more days as alleged).
20. The Applicant’s average monthly salary during the 12 months prior to the accident should therefore be HK$460 x 198.5 / 12 = HK$7,609.17.
21. The Applicant also confirmed in court that he accepted the finding of 3.5% as the “loss of earning capacity permanently caused by the injury” and 3 April 2014 to 20 November 2014 (a total of 7 months and 17 days or 7.57 months) as sick leave as stated under Form 9 (Trial Bundle page 244).
Compensation under Section 9
22. The Applicant was born on 27 October 1971 and was 42 at the time of the accident.
23. The compensation should be HK$7,609.17 x 72 x 3.5% = HK$19,175.11
Compensation under Section 10
24. The compensation should be HK$7,609.17 x 4/5 x 7.57 = HK$46,081.13
Compensation under Section 10A
25. The medical expenses receipts produced by the Applicant (Trial Bundle pages 269 to 278) amounts to HK$1,281
Total compensation
26. The total compensation should be HK$19,175.11 + HK$46,081.13 + HK$1,281 = HK$66,537.24
Order
27. The Respondent shall pay the Applicant a sum of HK$66,537.24 together with interests at half judgment rate from the date of the accident (2 April 2014) to the date of the judgment, and thereafter at judgment rate until payment.
28. Costs of the action be to the Applicant to be taxed if not agreed.
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(Harold Leong)
District Judge |
Mr Edward S.Y. Fan, instructed by Messrs Lau & Chan, for the applicant
The respondent was not represented and did not appear
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