NG TING CHEUNG v. 葉維新

DCEC 1665/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1665 OF 2014

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ASSESSMENT OF COMPENSATION

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Background

1.  This is an assessment of compensation claimed under Employees’ Compensation Ordinance, Cap 282 (“ECO”) as a result of an accident arising out of and in the course of the applicant’s employment with the respondent which took place on 12 October 2013.

2.  Interlocutory judgment on liability was entered against the respondent on 4 June 2015 by the order of his Honour Judge C M Leung.

3.  The respondent was absent for the assessment hearing.

The Accident

4.  On 12 October 2013, the applicant, who was in the course of employment with the respondent, was working in a villa at Lot No 1115 in DD217 Sai Kung, Hong Kong.  At about 2 pm, when the applicant was assisting the respondent using an electric saw to cut the edge of the glass pane on top of a hut situated at the roof of the villa, the glass pane suddenly broke, and both the applicant and the respondent fell down from the roof.

5.  As a result, the applicant’s hand was injured by the electric saw when he fell down.

Assessment of Evidence

6.  As the respondent has failed to file any list of earnings and list of documents, he was debarred from adducing any documentary evidence at the assessment of compensation pursuant to the court order dated 17 April 2015. Furthermore, the respondent was also debarred from calling any factual witnesses on quantum due to his failure to file and serve any witness statements pursuant to another court order dated 26 June 2015.

7.  The respondent was absent at the assessment hearing.  In the absence of any documentary and oral evidence from the respondent, the applicant’s evidence is unchallenged.

8.  In the circumstances, I attach full weight on the applicant’s evidence.

The Applicant’s Earnings

9.  The applicant submits the Court of Appeal case Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643 and asks this court to adopt the approach as set out in section 11 of the ECO in calculating the applicant’s earnings.

10.  The relevant legal principles on monthly wages can be summarised as follows:

(i) for the purposes of the ECO, the monthly earnings of an employee employed by his employer at the time of the accident shall be whichever is higher of the following:

(a) the earnings for the month immediately preceding the date of accident under section 11(1)(a); or

(b) the average monthly earnings for the preceding 12 months under the first limb of section 11(1)(b); or

(c) the average monthly earnings for any preceding lesser period where it is still applicable to compute an employee’s monthly earnings under the second limb of section 11(1)(b);

(ii) where by reason of the shortness of duration of employment, its casual nature, or the terms of the employment, it is impracticable to compute an employee’s monthly earnings with his employer, regard may be given to the average monthly amount which during the preceding 12 months was being earned by:

(a) a person of similar earning capacity in the same grade employed at the same work by the same employer under the first limb of section 11(2); or

(b) if there is no such person, by a person of similar earning capacity in the same grade employed in the same class of employment in the same district under the second limb of section 11(2).

11.  In the present case, the applicant was injured on the first day of his employment with the respondent in 2013, so it is not practicable to ascertain the applicant’s monthly remuneration under the respondent’s employment.  There is also no evidence as to the remuneration of comparable employees under the respondent’s employment.

12.  The applicant was employed by four different employers in 2013 before the accident:

(i) a part-time waiter casually employed by Tai Wu Restaurant under Fortune Land Investment Limited;

(ii) a part‑time surveyor at OMIC (Hong Kong) Limited;

(iii) a part‑time waiter at Braemar Hill Clubhouse under Bright Tower (HK) Limited; and

(iv) a part‑time consultant at Hin Way Printing Company Limited.

13.  The applicant submitted that notwithstanding the titles of the previous jobs, all of them did not involve special skills but just requiring manual labour work, so they could be considered as the same kind of job under the employ of the respondent and regarded as just general labourer or general worker.

14.  The applicant earned $55 per hour from Tai Wu Restaurant.  He usually worked six hours per day and eight days per month on average.  Therefore, the monthly salary from Tai Wu Restaurant was around HK$2,640. 

15.  The daily wages from OMIC (Hong Kong) Limited was $400 per day for inspection of goods in Hong Kong and $550 for inspection of goods in mainland China.  The applicant worked eight days per month on average, including four days in Hong Kong and four days in China.  Therefore, his monthly salary was around HK$3,800. 

16.  Regarding the income from Bright Tower (Hong Kong) Limited, the applicant’s monthly salaries for the period from November 2012 to March 2013 and August 2013 to September 2013 are as follows:

(i) November 2012: HK$2,952;

(ii) December 2012: HK$2,616;

(iii) January 2013: HK$4,416;

(iv) February 2013: HK$3,768;

(v) March 2013: HK$2,784;

(vi) August 2013: HK$4,316;

(vii) September 2013: HK$3,666.

17.  The applicant came to the court to give oral evidence to explain the absence of income from April to July 2013 due to his lack of income records.  However, the applicant drew my attention to his income records obtained from Inland Revenue Department which could be used to calculate his income from April to July 2013 not covered by his witness statement.

18.  After all, the monthly salary was calculated at HK$3,500, having regard to the missing income from April to July.

19.  As for the salary from Hin Way Printing Company Limited, the daily rate was HK$570, and the applicant worked two days per week on average.  The monthly salary was calculated at HK$4560.

20.  As the nature of the above jobs is that the applicant would do whatever work he was asked to do, requiring physical strength and fitness, all the above jobs could be regarded as the work of a general worker.

21.  Having regard to the authorities cited by Mr Hau for the applicant, Amir Nazir v Sino Construction Engineering Company and Another DCEC 855/2006, and Lee Kin Chuen v Wong Wai DCEC 970/2014, I take into account the above four jobs preceding the accident to calculate the average monthly salary for the 12‑month period before the accident at HK$14,500 (HK$2,640 + HK$3,800 + HK$3,500 + HK$4,560).

Compensation for Permanent Partial Incapacity under Section 9

22.  Section 9(1)(b) of the ECO provides that where permanent partial incapacity results, the amount of compensation shall be, in the case of an injury not specified in the First Schedule of the ECO, and such percentage of the compensation which would have been payable in a case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at the time.

23.  Since the injury of the applicant is not listed under the first statute, section 9(1)(b) applies to the present case.  The compensation which would otherwise have been payable in the case of an employee’s permanent total incapacity depends on section 7 of the ECO.

24.  Section 7(1)(b) provides that where permanent total incapacity results from the injury of an employee, the amount of compensation shall be, in the case of an applicant over 40 years of age but under 56 at the time of the accident, a lump sum equal to 72 months’ earnings or 72 times the relevant amount specified in the sixth statute of the ECO, whichever is less.

25.  The applicant was born on 5 May 1963, aged 50 at the time of the accident.  Therefore, section 7(1)(b) is relevant in calculating his permanent partial incapacity.

26.  As the applicant’s monthly earnings was HK$14,500, which was less than the relevant specified amount under the Sixth Schedule, HK$14,500 is applicable under this head.

27.  Pursuant to the Form 7 issued on 30 September 2014, the loss of earning capacity permanently caused by the injury was assessed at 2%.  Therefore, the amount of compensation under this head is calculated as follows:

HK$14,500 x 72 x 2% = HK$20,880

Compensation for Temporary Incapacity under Section 10

28.  Under section 10 of the ECO, the amount of compensation shall be periodical payments or a lump sum calculated at a rate proportionate to a monthly payment of four‑fifths of the difference between monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is capable of earning in some suitable employment or business during the period of temporary incapacity after the accident.  Section 10(2) of the ECO stipulates that the period of temporary incapacity is deemed to be a period of absence from duty certified to be necessary by a medical practitioner or by an ordinary assessment board irrespective of the outcome of the injury.

29.  According to Form 7, the period of absence from duty necessary as a result of the accident is from 12 October 2013 to 8 May 2014 (a total of 209 days). Therefore, the amount of compensation under this head is calculated as follows:

(i) October 2013:

  HK$14,500 × 20 ÷ 31 × 4 ÷ 5 = HK$7,483.87;

(ii) November 2013 to April 2014:

  HK$14,500 × 6 × 4 ÷ 5 = HK$69,600;

(iii) May 2014:

  HK$14,500 × 8 ÷ 31 × 4 ÷ 5 = HK$2,993.55;

Total: HK$ (7,483.87 + 69,600 + 2,993.55) = HK$80,077.42

Compensation for Medical Expenses under Section 10A

30.  Under section 10A of the ECO, the applicant is entitled to medical expenses for treatment of the personal injury suffered as a result of the accident.  The applicant claimed for the sum of HK$4,667 under this head.  Such sum is supported by receipts issued from various public hospitals and clinics.  I accept the claim under this head and award the full amount to the applicant.

Summary of Award

31.  As the respondent has not made any compensation or payment to the applicant arising out of the accident, the applicant’s total compensation in this application is therefore the sum of the above awards:

(i) section 9:	HK$ 20,880
(ii) section 10:	HK$ 80,077.42
(iii) section 10A:	HK$ 4,667
Total:	HK$105,624.42
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Interest

32.  The above award’s interest is calculated at the rate of 4% per annum from the date of accident, ie 12 October 2013, to the date hereof, and thereafter at judgment rate until full payment.

Costs

33.  Mr Hau for the applicant concedes that there should be no order as to costs of the hearing on last occasion, 2 October 2015, and I have also made no order as to costs of an application for re-amending the Application on 13 October 2015.  Save and except for the said costs order and no order as to costs of the hearing on 2 October 2015, I do not see any reasons why costs should not follow the events.

34.  In the circumstances, I order that the costs of the application be to the applicant to be taxed if not agreed.

35.  Lastly, as the applicant is on Legal Aid, I order that the applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.