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DCEC 643/2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO 643 OF 2014
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BETWEEN
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CHEUNG SAU LIN for herself and
the members of the family of
YEUNG KWAI SHING, deceased |
APPLICANT |
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and
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HONTRADE ENGINEERING LIMITED |
Respondent |
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| Coram : His Honour Judge Ko in Court |
| Date of Hearing : 26 June 2015 |
| Date of Judgment : 26 June 2015 |
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ASSESSMENT OF COMPENSATION
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1. This is the assessment of the compensation payable by the respondent to the family members of the deceased under the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”).
2. The deceased was employed by the respondent as a tower crane technician.
3. On 3 July 2013, the deceased was deployed by the respondent to work in a construction site in Guangzhou in the Mainland. He was instructed to make preparations to dismantle a tower crane on the site. Whilst he was working on a working platform which was lifted high by several chain blocks connected to the crane, the platform suddenly collapsed and the deceased fell to his death.
4. The deceased is survived by his wife and three daughters.
5. The wife commenced these proceedings (on behalf of herself and the daughters) to claim compensation under section 5 of the Ordinance, alleging that the deceased had died as a result of personal injury by accident arising out of and in the course of the deceased’s employment with the respondent.
6. By section 30B, the Ordinance applies where personal injury by accident arising out of and in the course of employment is caused to an employee outside Hong Kong where the employee’s contract of employment is entered into in Hong Kong with an employer who is a person carrying on business in Hong Kong.
7. The respondent did not enter an appearance to contest the claim. On 5 December 2014, judgment on liability was entered against the respondent with compensation to be assessed.
8. The respondent was notified of this assessment and is absent at the hearing.
9. The wife and the daughters, whose relationship with the deceased is confirmed by the marriage certificate and birth certificates in evidence, are all members of the deceased’s family eligible for compensation in accordance with the Ordinance.[1]
10. The respondent is a company incorporated in Hong Kong. According to the deceased’s employment contract, the deceased was engaged to install, repair, maintain, or dismantle tower cranes in and outside Hong Kong. I am satisfied that the respondent is carrying on business in Hong Kong and that the employment contract was entered into in Hong Kong.
11. At the hearing, the wife confirms that the deceased was 53 years old and earning $48,340.38 per month at the time of the accident. The respondent has reimbursed her for the funeral expenses and further paid her a total sum of $846,400 on account of the employees’ compensation payable by the respondent.[2]
12. In addition, she has received a sum of RMB500,000 from a Mainland insurance company (中國太平洋財產保險股份有限公司). According to the documents received from the insurance company, the payment was in respect of medical and accident insurance bought by two Mainland companies (namely, 廣州市漢暉機械設備有限公司 and 廣州市建築集團有限公司). The wife says that she does not know these companies and there is nothing to relate the payment to the respondent.
13. As there is no contrary evidence, I accept the wife’s evidence. In particular, her evidence on the monthly earnings of the deceased is confirmed by the notice in Form 2 dated 6 July 2013 submitted by the respondent to the Commissioner for Labour.
14. Section 6 provides that 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, the amount of compensation payable to the members of the employee’s family shall be a lump sum equal to 60 months’ earnings or 60 times the amount specified in the second column of the Sixth Schedule shown opposite section 6(1)(b) specified in the first column of that Schedule, whichever is the less. The amount specified in the Schedule was $23,580[3] which is less than the monthly earnings of the deceased.
15. The amount of compensation payable to the family members should therefore be: $23,580 x 60 = $1,414,800. This is not less than the amount specified in the second column of the Sixth Schedule shown opposite section 6(2) in the first column of that Schedule.[4]
16. The wife is agreeable to give credit to the $846,400 already received from the respondent. I agree that the other sum of RMB500,000 is unrelated to the respondent’s liability under the Ordinance. The respondent should therefore pay the members of the deceased’s family the balance of $568,400.
17. Interest should run from the date of the accident until today at half judgment rate.
18. The amount of compensation received from the respondent should be apportioned to the wife and the daughters in accordance with the Seventh Schedule as follows:[5]
(a) 50% of the compensation should be paid to the wife; and
(b) the remaining 50% of the compensation should be paid to the three daughters in equal amounts.
19. I therefore assess the amount of compensation payable by the respondent at $1,414,800. After taking into account the part-payment made, the respondent should pay the applicant the balance of $568,400. The compensation should be apportioned amongst the family members as provided above.
20. Costs normally follow the event. As the application for compensation has been successful, I order the respondent to pay the applicant the costs of the whole proceedings, assessed summarily at $137,548.
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(Justin Ko)
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Acting Chief District Judge |
Mr G Hau of V Hau & Chow for the applicant.
Respondent in person, absent.
[1] See section 6A and the definition of “member of the family” under section 3.
[2] This amount has taken into account the further payments received from the respondent since she made her witness statement (see §10 of Bundle 31). According to the document at Bundle 145, such payments are meant to be part-payment of the compensation payable under the Ordinance.
[3] That amount has since been increased to $26,070, see LN 31 of 2015.
[4] See section 6(2).
[5] See §5 of the Seventh Schedule.
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