TSEUNG TSAN FAI v. TANG SHUI CHING t/a LUEN HOP

DCEC92/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 92 OF 2005

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J U D G M E N T

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1.  The applicant, Mr Tseung Tsan-fai, claims compensation pursuant to sections 9 and 10 of the Employees’ Compensation Ordinance Cap. 282, hereinafter called “the Ordinance,” resulting from an accident that occurred whilst in employment with the respondent on 4 March 2003 as a welder.  The applicant was born on 15 August 1952 and he was aged 50 years old at the time of the accident.

2.  On 18 December 2006, the respondent, who acted in person, admitted liability and judgment was entered against him by consent.  The question of assessment of compensation was adjourned today for hearing.  Respondent was absent today. 

3.  As at the date of accident, the applicant was employed by the respondent to dismantle an illegal structure and replace some piping at the site in Luen Cheong Street, Fanling.  The accident occurred whilst the applicant fell from a height of two to three metres whilst descending a ladder.  He was unconscious for over 10 minutes and was later rushed to North District Hospital.  He was found to have a fracture of the left elbow with dislocation and was admitted for treatment.  Sick leave was granted from 4 March 2003 until 30 April 2005. 

4.  On 27 June 2005, he was assessed by ordinary assessment whereupon he was found to have suffered 4 per cent loss of earning capacity.  He appealed against the assessment and a Review Board was convened.  Certificate of review of assessment was issued on 12 December 2005 with the finding of 10.5 per cent loss of earning capacity. 

5.  The applicant accepts the finding.  There has been no appeal by the respondent on this point and there was no direction for any medical evidence to be adduced by either party at this assessment.

6.  The respondent states that he paid the applicant $600 per day.  For the purposes of the present proceedings, the applicant accepted wages at $600 per day. 

7.  The only item in dispute is really the average number of working days per month of the applicant prior to the accident. 

8.  According to the applicant, he was a casual worker and by the very nature of his employment had many employers from time to time. 

9.  It is the applicant’s case that he worked on an average of at least 21 days per month in the 12 months prior to the accident.  He said he worked for the respondent as a welder and he worked as a plasterer whilst he worked for other employers.

10.  The applicant says that he was always paid in cash and has not kept copies of receipt of wages and has never filed a tax return.

11.  According to the applicant, his wage should be calculated according to section 11(2) of the Ordinance.

12.  Witness for the Applicant Chung Kin-wah gave evidence and said that he was able to work 25 days per month as at the date of accident as a plasterer. 

13.  Tseung Yiu-fai, the applicant’s younger brother, also gave evidence.  He said he was able to give work to the applicant whenever he needed it and that shortly before the accident, he paid the applicant $700 per day for the job.

14.  As the respondent was absent, the evidence of the applicant is unchallenged.  Although the respondent had previously filed to court copies of cheques allegedly paid to the applicant which contradicted the evidence of the applicant so far as the manner of payment was concerned, as the respondent was absent today, the same was not evidence before the court.

15.  Further, although it appears odd that the applicant would have elected to work at $600 per day for the respondent rather than $700 per day working for his own brother, in the absence of any challenge and adopting the balance of probability standard, I accept in the circumstances the applicant’s evidence that in the year prior to the accident, he did work at least 21 days per month at an average daily wage of $600.

16.  On this basis, I order that respondent to pay the applicant compensation as follows: 

(a)	under section 9,
	$600 x 21 x 72 x 10.5% = $95,256;
(b)	under section 10,
	$600 x 21 x 25.86 x 0.8 = $260,668,
making a total sum of $355,924.

17.  I also order that the respondent shall pay interest on the aforesaid award of $355,924 to the applicant from the date of application to the date of judgment at half-judgment rate and thereafter interest on the judgment sum at judgment rate until payment.

18.  As for costs, I make an order nisi that costs of this application, including all costs reserved, shall be paid by the respondent, the same to be taxed if not agreed, and that applicant’s own cost to be taxed in accordance with Legal Aid Regulations.  The order nisi shall be made absolute on the expiration of 14 days.