LEUNG KAM KAY v. MASTERY INTERNATIONAL ASSOCIATES LTD (in liquidation)

DCEC 22/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 22 OF 2010

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ASSESSMENT OF COMPENSATION

1.  Leung, the Applicant, claims compensation against MIA, the Respondent, pursuant to the Employees’ Compensation Ordinance, Cap.282. MIA was in liquidation by the order of the court on 10 September 2008. With leave of the court on 4 January 2009, Leung filed the present Application against MIA.

2.  All along, MIA has been absent from the previous direction hearings.  So is it today.  By letter, the Official Receiver has indicated that they would not resist the Application or attend the hearing.  The position was maintained as at today.  Judgment on liability was entered on 30 April 2010 for compensation to be assessed.  Hence this hearing.

3.  I see no reason why Leung may not proceed today.

The accident and injuries

4.  The industrial accident happened on 26 February 2008.   Leung fell from a working platform when it suddenly toppled.  As a result, he sustained injuries to his left ankle.  He consulted private doctor and was admitted to the hospital.  Marked swelling and tenderness over his left heel was detected.  X-ray and CT scan confirmed comminuted fractured oscalsis.  Leung was given conservative treatment.  Short leg cast was prescribed for 6 weeks, followed by non-weight bearing walking.  He was discharged on 6 March 2008.  Follow up lasted from 20 March 2008 to 8 June 2009.  These are evidenced by the relevant medical reports.

Assessment

5.  On 2 June 2009, Leung was examined by the Employees’ Compensation (Ordinary Assessment) Board (“MAB”). The certificate of assessment was issued on 15 June 2010.  For fracture of left calcaneum resulting in ankle pain, Leung was assessed to be suffering 3% permanent loss of earning capacity.  Upon review, the MAB maintained its assessment.  Sick leave from 26 February 2008 to 28 June 2009 was certified to be necessary.

Pre-accident job and income

6.  At the time of the accident, Leung was working as a blacksmith under the employ of MIA.  As such, he received daily wage at the rate of HK$680.  According to him, wages were paid out in cash.  He worked on average 25 days a month.  He managed to put together a summary of the work days in the few months for MIA immediately prior to the accident.  His average monthly income was about HK$17,000.

7.  Besides his evidence, it is also adduced on his behalf statistics of the daily wage of metal workers and welders engaged in public sector constructions projects in January 2008. They indicate a median average wage rate even higher than what Leung is claiming.

8.  There is no contrary evidence.  I accept the evidence adduced on Leung’s behalf.

Section 9 compensation

9.  Leung was born on 19 May 1957 and was aged 50 at the time of the accident.  Therefore compensation for his permanent loss of earning capacity pursuant to section 9 is HK$17,000 x 72 x 3% = HK$36,720.

Section 10 compensation

10.  Compensation for his temporary loss of earning capacity pursuant to section 10 is HK$17,000/30 x 488 x 4/5 = HK$221,227.

Section 10A compensation

11.  According to the evidence, Leung has incurred medical expenses for the 10 days of hospitalisation and outpatient treatments in the total sum of about HK$46,000. But due to the statutory limit under 3^rd Schedule to the Ordinance, the amount that Leung is entitled to, according to the number of days of his hospitalisation and out-patient treatments, shall be HK$5,800.  This is supported by the relevant receipts and I allow it.

12.  In summary:

Section 9 compensation	HK$ 36,720
Section 10 compensation	HK$ 221,227
Section 10A compensation	HK$ 5,800
Total:	HK$ 263,747

13.  Interest is allowed at half judgment rate on the above sum from the date of accident until today.

Conclusion

14.  Compensation is assessed at the sum of HK$263,747.  MIA is to pay such sum together with interest as aforesaid.  Interest from today accrues at the judgment rate until full payment.  Leung shall have the costs of these assessment proceedings, including any costs reserved. Costs shall be taxed, if not agreed.