KONG CHEUK SING v. WING WAI TELECOM CO LTD

DCEC 245/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 245 OF 2011

________________________

BETWEEN

________________________

________________________

ASSESSMENT OF DAMAGES

________________________

1.  The applicant applies under sections 9, 10 and 10(a) the Employees’ Compensation Ordinance (“the Ordinance”) for compensation against the former employer, the Respondent, due to an eye injury sustained in the course of his employment on 31 October 2009.

2.  The Respondent failed to file an answer and judgment against the Respondent in default was entered on 27 May 2011.  The Respondent also failed to file a list of the Applicant’s earnings or a list of documents in spite of the Court’s order on 22 July 2011 under unless order against the Respondent.  Today’s hearing is fixed to assess the Applicant’s compensation under section 9, 10, 10(a) of the Ordinance.

3.  Amongst the documents filed by the Applicant is a Form 2 filed by the Respondent, the employer, on the accident that took place on 31 October 2009, where the employer confessed it failed to take out an employee compensation insurance coverage for the Applicant.  It is probably the reason why the Respondent is absent and has been absent from these proceedings all along. 

4.  The Applicant had been an employee of the respondent since 2007.  His monthly salary was increased to $7,300 per month in 2009.  His take home pay after deduction of 5 per cent MPF by the employer was $6,935 per month.  The applicant has shown and exhibited his bank savings account passbook as evidence of the deposit of the cheques for the salaries received from his employer. 

5.  On 31 October 2009, while using a grinder to remove rust from old machines, a particle from a steel wire of the machine hit the applicant’s right eye, injuring his right eye.  He was admitted into Caritas Medical Centre for emergency right eye operation to remove the foreign body from his right eye and for treatment.  He was discharged from the hospital on 28 November 2009.  He had a second operation on 18 January 2010 to remove the cornea suture and the tissue glue on the right eye.  Since then he has been followed up every three months at the Caritas Medical Centre.

6.  At present he is not able to see beyond five feet from his right eye.  On 16 December 2010 he was assessed by the Employees Compensation Ordinary Assessment Board to have suffered a right eye injury resulting in visual loss with a loss of earning capacity of 48%. 

7.  The sick leave assessed was 114 days between 31 October 2009 and 6 September 2010.  The applicant is 43 years old now, and he was 41 years old at the time of the accident. 

Section 9

8.  The calculation for his loss based on 48% loss of earning capacity is as follows: $7,300 x 48% x 72 =$252,288.00.

Section 10

9.  He was granted 120 days sick leave, therefore he is entitled to: $7,300/30 x 140 x 4/5 = $27,253.33. 

Section 10A

10.  He has produced all but three of the payment receipts for his treatments at the Caritas Medical Centre and the Tuen Mun Hospital.  I accept he had incurred medical expenses in a total sum of $5,500. 

11.  After the accident, his former employer paid him a total of $20,750 including $5,500 4/5 pay for three months and $4,100 for medical expenses. 

Summary

S9	$252,288.00
S10	27,253.33
S10A	5,500.00
Total	285,041.33
Less the employer payment	20,750.00
Total	$264,291.33

12.  I order the Respondent to pay to the Applicant compensation under sections 9, 10, 10A of the Ordinance in the sum of $264,291.33. 

Interests

13.  Interests on damages at half judgment rate from the date of accident to the date of judgment and thereafter at judgment rate until full payment. 

Costs

14.  Costs of applicant to be borne by the respondent, to be taxed if not agreed with certificate for counsel.  The applicant’s own costs be taxed in accordance with Legal Aid Regulations.