LEUNG YUK MING v. YEUNG LUEN CHUNG KEVIN trading as KEVIN ENGINEERING CO

DCEC 755/2017

[2019] HKDC 1555

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 755 OF 2017

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ASSESSMENT OF COMPENSATION

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Introduction

1.  This is the assessment of the applicant’s employees’ compensation claim based on an accident which took place on 27 September 2016 (the “Accident”). He claims against the respondent the compensations under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”). Interlocutory judgment on liability was entered against the respondent on 21 September 2018.

2.  At the assessment hearing, the applicant was represented by Mr W Y Marwick Quan (“Mr Quan”) of B. Mak & Co.  The respondent was unrepresented and absent.

3.  The applicant took out this employees’ compensation on 3 April 2017.  Save for the direction hearing on 26 January 2018, the respondent was absent in all hearings prior to this assessment hearing.  No document whatsoever was filed by the respondent, despite the unless orders imposed on him.[1]

4.  An affirmation of service dated 14 November 2019 was filed by the applicant’s solicitors, showing that the order of Her Honour Judge Levy dated 28 June 2019 which sets out, amongst other directions, the date of this assessment hearing, was served on the respondent in good time.  The affirmation also showed that the assessment bundle and opening submissions of the applicant have been served on the respondent on 13 November 2019.  Apart from the above, a Notice of Trial dated 8 August 2019 has also been issued by this court to the parties.  As such, I am satisfied that the respondent has had notice of this hearing and the assessment should be proceeded with in his absence.

The Accident

5.  As judgment on liability has been entered, the events leading up to the Accident are set out below as background facts and for completeness sake.

6.  The applicant started his employment with the respondent as a plasterer on 11 September 2016.

7.  On 27 September 2016, at about 5:00 pm, the applicant was working at Shop A, No. 4 Peace Avenue, Mongkok, Kowloon (the “Shop”) in the course of his employment with the respondent.  At about 5:10 pm of even date, the applicant was laying tiles (each with the dimension of 1 ft x 2 ft) at the washroom of the Shop.  As he was laying the tiles at the top of a wall, he had to stand on an aluminum stand of around 1 metre of height.  In the midst of his task, the uneven ground inside the washroom caused the aluminum stand to wobble, which led to the applicant losing his balance and fell onto the ground.  At the time when this happened, the applicant was holding a piece of tile in his right hand.  The tile cut his right wrist.

8.  Immediately after the Accident, the applicant was taken by ambulance to the Accident and Emergency Department (“AED”) of Kwong Wah Hospital (“KWH”) for treatment.

The applicant’s injuries and loss of earning capacity

9.  At the AED of KWH, the applicant was found to have a 4-cm laceration on his right wrist, partial laceration of superficial radial nerve and 20% brachioradialis tendon cut in the right wrist upon wound exploration.  He was hospitalized for 3 days.  After his discharge on 29 September 2016, he was followed up by the Orthopaedics & Traumatology Department of KWH as an inpatient.  He was also referred to physiotherapy and occupational therapy for rehabilitation.  The doctors granted to him continuous sick leave from 27 September 2016 to 8 November 2017, a total of 408 days.

10.  The applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) on 8 November 2017.  In the Form 7 issued on 22 November 2017, the Board assessed the applicant to have suffered from “right wrist injury resulting in right wrist stiffness, numbness and weakness”, resulted in his loss of earning capacity at 2%.  The Board also accepted the said sick leave granted by the doctors.

11.  Neither the applicant nor the respondent has lodged an appeal against the Form 7.  As such, the Board’s assessment is final and binding on the parties.[2]  I would therefore find that the applicant suffered the injury and loss of his earning capacity as assessed by the Board.  I also find that the sick leave period, as accepted by the Board, was reasonable.

The applicant’s earnings at the time of the Accident

12.  According to his witness statement, which was adopted as his evidence in chief, he started his employment with the respondent on 11 September 2016, and met the Accident on 27 September 2016.  On the face of it, one would assume he had been working for the respondent for the full 17 days during the said period.  However, at the assessment hearing, he clarified that he had worked and received payment in cash of HK$7,000.00 for 5 days from 11 September 2016 onward, and then stopped working for the respondent for a few days.  He explained that his work at the Shop had to stop to give way to works of other nature, for example installation of wires and cables, before it could be resumed.  Thus, he worked for another employer during the said stoppage.  He immediately resumed his work at the Shop when the respondent informed him that the other works had been completed.  The applicant recalled that he had resumed his work at the Shop for 3 to 4 days before the Accident.  When asked by Mr Quan, the applicant agreed that out of the 17 days from 11 to 27 September 2016, he had worked about 9 to 10 days for the respondent.

13.  In light of the above, section 11(2) of the ECO is engaged in determining the applicant’s earnings at the time of the Accident.[3]  As aforementioned, the respondent has filed no document at all in this case.  The information that should come from the respondent as prescribed by section 11(2) of the ECO is therefore unavailable to resolve this matter.

Daily wages

14.  Turning first to the daily wages of the applicant, his evidence was that he would be given HK$1,400.00 per day of work by the respondent.  Before his employment with the respondent, his daily wages received from various employers ranged from HK$1,300.00 to HK$1,500.00.

15.  Apart from his assertion, there is no documentary evidence to show his daily wages.  The applicant confirmed at the hearing that neither himself nor his employers has ever made Mandatory Provident Fund contributions.  The bank passbook he has tendered gives no aid in ascertaining such information as well.

16.  Mr Quan has drawn this court’s attention to a notice provided by the Hong Kong Brick-Laying & Construction Trade Workers’ Union dated 17 October 2016 (“Union’s Notice”).  It shows that the daily wages of a plasterer were increased from HK$1,350.00 to HK$1,450.00 from 1 November 2016 onward.

17.  I note from the Union’s Notice that plasterers were in general receiving HK$1,350.00 as the daily wages prior to 1 November 2016, i.e. at the time of the Accident.  The reason for the suggested increment to HK$1,450.00 per day was due to the improving economy and persistent shortage of plasterers.

18.  In view of the above.  I find it probable that the respondent had agreed to pay the applicant slightly more than what a plasterer would usually get to entice his service.  I am therefore convinced that the respondent would have agreed to pay daily wages of HK$1,400.00 to the applicant at the time of the Accident.

Working days

19.  Since the applicant was a daily-waged worker, his monthly earnings would depend on the number of days he worked in a particular month.  In this regard, the applicant alleged that for the 12 months prior to his employment with the respondent, he would work 26 days per month on average.  Based on his daily wages of HK$1,300.00 to HK$1,500.00, that would give him monthly earnings between HK$33,800.00 and HK$39,000.00.

20.  The applicant relied on his bank passbook to support his case.  He confirmed in court that all deposits shown therein were his incomes, save for the nominal interests received from the bank.

21.  However, the transactions revealed that from 7 September 2015 to 29 August 2016[4], a total sum of HK$157,400.00 was deposited into his bank account, which averaged out to HK$13,116.67 per month.  This is far below what the applicant said he had been earning before his employment with the respondent.  I also observed that for some of the months during this period, i.e. September 2015, October 2015 and December 2015, there were no deposits at all.  The information derived from the bank passbook seems to contradict, rather than support, the applicant’s case.

22.  I have raised the above query with the applicant at the assessment hearing.  He answered that the bank passbook does not reflect all his earnings at that time, as some of his employers would pay him by cash or cash cheques.  The former would not be deposited into the account, and the latter would be cashed at the banks.

23.  Considering his answer and evidence as a whole, especially the Union’s Notice which showed the shortage of plasterers and the demand for them, and in the absence of any evidence to the contrary, I accept the applicant’s case that he would have 26 days of work per month at the time of the Accident.

24.  For the said reasons, I accept Mr Quan’s suggestion and adopt the figure as submitted by the applicant, i.e. HK$1,400.00 x 26 days = HK$36,400.00, as his monthly earnings at the time of the Accident.

25.  I now turn to the different heads of compensation claimed by the applicant.

Compensation in case of permanent partial capacity (section 9 of ECO)

26.  The applicant was born on 27 October 1963, and was aged 52 at the time of the Accident.  As aforesaid, his loss of earning capacity was 2%.

27.  Pursuant to section 7(1)(b) of the ECO, the amount that the applicant should receive under this head is HK$26,070.00[5] x 72 x 2% = HK$37,540.80.

Compensation in case of temporary incapacity (section 10 of ECO)

28.  The claim under this head is basically the loss of earnings during the applicant’s sick leave period, i.e. for 408 days as stated in the above.

29.  The amount of compensation that should be awarded to the applicant is HK$36,400.00 x 408/30 x 4/5 = HK$396,032.00.

Payment of medical expenses (section 10A of ECO)

30.  The applicant claimed medical expenses of HK$440.00 which is based on the payment records issued by KWH on 15 January 2019. I would award compensation in the sum as claimed.

Conclusion

31.  To recap, the compensation awarded above are as follows:-

(1) Section 9                HK$37,540.80

(2) Section 10            HK$396,032.00

(3) Section 10A                HK$440.00

Total:                       HK$434,012.80

32.  Credit should be given to the advanced payment made by the respondent on 11 October 2016 and 15 November 2016 in the total sum of HK$70,000.00.  Accordingly, the sum receivable by the applicant should be reduced to HK$364,012.80.

Order

33.  In light of the above, the compensation payable by the respondent to the applicant is assessed at HK$364,012.80. Interest shall accrue on this sum at half judgment rate from the date of the Accident (i.e. 27 September 2016) up to the date of judgment, and thereafter at judgment rate until payment in full.

34.  I would also order that the respondent do pay to the applicant the costs of this action, including all costs previously reserved, to be taxed if not agreed.