SUM KWONG MING v. CHAU SIU FAI t/a NEW SKY GLASS HOUSE DESIGN

DCEC1372/2017

[2020] HKDC 814

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1372 OF 2017

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ASSESSMENT OF COMPENSATION

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1.  This is an employee compensation claim. Interlocutory judgment has been entered on 6 September 2019 and this is an assessment of compensation.

Background

2.  The Applicant is a free-lance metalwork technician / welder. His work involved construction and welding of metal signs, metal railings, metal canopies, metal steps and any minor metal work for construction sites, shops and private homes. He was 63 years old at the time of the accident.

3.  The Applicant was engaged by the Respondent to convert a container into a construction site office. On 6 September 2016, whilst doing measurements for the construction of a metal canopy, he accidentally fell from the top of a concrete wall.

4.  According to the medical reports, he attended the AED of Pok Oi Hospital and was diagnosed to have suffered from 2rd to 4^th metatarsal fracture in the left foot. He was admitted but refused surgery. He underwent physiotherapy (one session) and occupational therapy (from 12 January 2017 to 9 March 2017). According to the Occupational Therapy report, he underwent work hardening and on discharge, he “was suggested for considering back to work”. Final assessment showed he managed walking and stairs walking, lifting 40 pounds, climbing and balancing on a ladder etc.

5.  He was given sick leave from 6 September 2016 to 9 March 2017. Form 9 certifies permanent loss of earning capacity at 3% which I will not disturb.

Quantum

6.  The Applicant stated in his witness statement that before the accident, he worked 28 days a month and earned a daily wage of HK$1,000.

7.  In court, the Applicant said that he was a freelance metalwork technician and relied on various job referrals from various contractors. The Respondent was one such contractors and the Applicant found the Respondent from a newspaper advertisement.

8.  The Applicant had contacted the Respondent and had an interview. His first job for the Respondent was to construct a signboard in the front of a garage which took him 5 days at the end of August 2016.

9.  This was his second job which started on 1 September 2016. By the time of the accident on 6 September 2016, he only got as far as doing the measurements for the metal canopy. He said that he was assisted by a general labourer and the whole job, that is, the conversion of a metal container into a site office, would normally take about 18-19 working days. He had done this kind of conversion about 8-10 times in the past.

10.  As for his average working days a month, the applicant admitted that “during very good times”, he would work up to 28 days a month, but he had not done so in the last 8-10 years. He said that the work market around 2016 was “average” so he might have a “good” month followed by a “bad” month. In a “good” month, he might work 22-23 days but in a “bad” month, he might only work 15 days. Good months and bad months were about half and half in an average year.

11.  As such, I would accept that the Applicant’s average monthly income prior to the accident should be HK$1,000 x (22.5 + 15) / 2 = HK$18,750

Compensation under Section 9 – Permanent Partial Incapacity

12.  This should be HK$18,750 x 48 x 3% = HK$27,000

Compensation under Section 10 – Temporary Incapacity

13.  This should be HK$18,750/30 x 185 days x 4/5 = HK$92,500

Compensation under Section 10A – Medical Expenses

14.  I accept the Applicants claim as HK$750 under this head as supported by hospital receipts.

Summary

15.  The total compensation should be HK$27,000 + 92,500 + 750 = HK$120,250

Interest

16.  I note that there was no advance payment or any reimbursement of medical expenses received by the Applicant.

17.  Interest on the total compensation is awarded at half Judgment rate from the date of accident to the date of the hearing, and at full Judgment rate thereafter until payment.

Costs

18.  The costs of this action be awarded to the Applicant to be taxed if not agreed. The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.