LEE KA ON v. YAN LAI KAR t/a LI KEI ENGINEERING CO

DCEC 2077/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2077 OF 2012

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JUDGMENT
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1.  In this matter for trial under the Employees Compensation Ordinance (“Ordinance”), the applicant, LEE Kan On (“Mr Lee”), claims compensations against the respondent, YAN Lai Kar (“Ms Yan”) trading as Li Kei Engineering Co (“Li Kei”), under section 9 for permanent partial incapacity, section 10 for temporary incapacity, and section 10A for medical expenses. His claim under section 7 for permanent total incapacity and section 8 for cost of attention, as originally pleaded in his Application filed on 28 November 2012, have been abandoned.

2.  On the day of the trial, the respondent did not appear, and after some waiting, counsel for the applicant, Mr Ernest Ng, sought to proceed with the assessment in the respondent’s absence. I noticed from a perusal of the papers before me, that although Ms Yan had been acting in person in opposing Mr Lee's claim and disputing liability all along, neither she nor any representative of Li Kei appeared before His Honour Judge Leung at the last hearing when directions were given, including a very clear direction for trial commencing 11 February 2015.  I was satisfied from a perusal of the court file, that Ms Yan had been given notice of the hearing, and from the affidavit of service that the hearing bundles and the opening submissions have been served on her.  The hearing can rightly proceeded in the absence of any representative from Li Kei without deferment.

The accident

3.  Mr Lee was born on 9 September 1965, and was aged 45 on 25 August 2011, the date of the accident.  His evidence is that on 6 August 2011, through an acquaintance or friend, 葉偉勤(“Mr Yip”), he immediately came under the employ of Li Kei as a plasterer, at an agreed daily wage of $900.

4.  On the day of the accident, he was doing plastering work all alone at 112A, 1/F, Chung Ying Building, Lok Kwan Street, Tai Kok Tsui, Kowloon (“Site”). At about 11 am, while he was lifting up and carrying a heavy bag of cement of about 45kg, he sprained his back.  He rested for some 15 minutes, and then continued his work.  In the afternoon, upon the arrival at the Site of 何偉良 (“Mr Ho”), who was the husband of Ms Yan, Mr Lee immediately informed Mr Ho of the accident, and that he was suffering from increasing back pain as a result or it.  However, Mr Ho gave him no response.  In the light of such apathy, Mr Lee continued his work for fear of being abruptly dismissed, and endured his suffering until about 5:30 pm when he left for home.  He did not seek medical treatment that evening other than applying “活骼油”, commonly also known as “wood lock” ointment, to relieve himself of the pain.

5.  Since Ms Yan did not appear at trial, her case, as stated in the her own witness statement and the witness statement of Mr Ho (both filed on 19 October 2013), is not evidence that I can take into account.  For this reason, the originally hotly contested that she raised concerning a lack of causation between the applicant's employment and the injury suffered cannot be sustained, and Mr Lee's evidence has gone unrebutted.

Subsequent events

6.  According to Mr Lee, on the following day of the accident, ie 26 August 2011, he continued to work all alone at the Site.  In the afternoon, Ms Yan came to the Site for an inspection.  He took the opportunity to inform her of his accident and his injury, whereupon she replied that she also had illnesses, and then ignored him.  On the following day, 27 August 2011, upon his return to work, he discovered that could no longer gain access to the Site because the entrance lock was changed.  He telephoned Mr Ho to ask what happened, but the only answer he got was that there was no work for him that day.  He then told Mr Ho that he would be visiting Kwong Wah Hospital later in the day for treatment. That same day, he also telephoned Mr Yip and informed him about the injury from the incident, and his being shut out from the Site.  Mr Yip said that he would contact Li Kei to further understand what happened.  Later that same day, Mr Yip told Mr Lee that Li Kei wanted to pay him his wages for August.  In the evening, at about 6 pm, in the presence of Mr Yip, Mr Lee met Ms Yan at Sheung Shui MTR Station and received his wages for work rendered between 6 August 2011 and 26 August 2011, in the total sum of $13,500.

The relevant law

7.  One key issue to be resolved in this dispute is whether, the accident arose out of and in the course of his employment, falling within the scope of the relevant part of section 5(1) of the Ordinance, which provides that if in any employment, personal injury by accident arising out of and in the course of employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.  The meaning of ‘in the course of employment’ in the context of English workmen's compensation legislation, has long been established in the House of Lord case of Moore v Manchester Liners Limited [1910] 498, where Lord Loreburn said:-

"I think an accident befalls a man “in the course of” his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing".

8.  Section 5(4)(a) makes it clear that for the purposes of the Ordinance, an accident arising in the course of an employee's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment.  Furthermore, it has been firmly established that for the purposes of section 5, it is not necessary for the applicant to prove that the accident directly arose out of the employment; all that is necessary is to show that the workman was doing something which was an incident of his employment or was incidental to it; see Lam Kam Nui v Sau Kee Co Ltd [1991] 2 HKLR 232, per Mortimer VP, at 168J to 169C.  In the light of the above, I have no doubt that Mr Lee's accidental injury at work, irrespective of whether it was directly caused by his engagement or otherwise merely incidental to it, falls solely within the scope of section 5 of the Ordinance, and which entitles him to statutory compensation.

The applicant's income

9.  Although Mr Lee had been employed by Li Kei for a period shorter than the month of August 2011, the List of Earnings of the Applicant filed on 4 Jun 2013 by Li Kei shows that there is no dispute over Mr Lee's daily wages of $900.  That being the case, I regard the matter before me as an appropriate case for the application of the computation approach under the 2^nd limb of section 11(1)(b), in determining Mr Lee's monthly wages. Section 11(1)(b) provides that for the purposes of the Ordinance, the monthly earnings of an employee at the time of the accident shall be the earnings computed in such manner as is best calculated to give the monthly rates at which he was being remunerated during the previous 12 months if he has been so long employed by the same employer, but if not, then for any lesser period during which he has been employed by the same employer, whichever is more favourable to him.  The reference to “lesser period” in the 2^nd limb of this section has been construed by the Court of Appeal in Or Wing Ming v Ho Bing Chi [2008] 4 HKKRD, 337, per Andrew Chung J at paras 4-7, and Yeung JA at paras 38-47, as including a period of less than 1 month, and that it makes no difference whether the injured employee earns his wages on a daily, weekly or monthly basis.  The limb has also been construed as being applicable where an employee's remuneration during the lesser period is such as to render it practicable to calculate his monthly remuneration, and if the answer to this question is in the negative, his remuneration will have to be calculated in accordance with section 11(2) or even section 11(5).

10.  It is not necessary in Mr Lee's circumstances to examine the computation approaches under sections 11(2) and 11(5) because there is no dispute between the parties that his daily pay was indeed $900, and that it is practicable to compute his monthly earnings at that rate to render the monthly figure of $23,400 on the basis of 26 days of work in a month.  I notice from the List of Earnings compiled by Li Kei that Mr Lee was expected to work from 6 August 2011 for the whole month of August, with only 2 rest days being granted to him.  In these circumstances, I accept the figure of $23,400 as both practicable and perfectly reasonable. 

Compensation for temporary incapacity – section 10 of the Ordinance

11.  The evidence also shows that although the accident took place on 25 August 2011, Mr Lee only obtained certified absence from duty for a mere 37 days between the 2 years from 27 August 2011 to 26 August 2013, as per the Certificate of Review of Assessment (Form 9) issued on 11 September 2013 by the Employees' Compensation (Ordinary Assessment) Board.  It modified or updated an earlier Certificate of Assessment (Form 7) dated 11 Jun 2013.  According to the review, his loss of earning capacity permanently caused by the injury remains at 4%.

12.  Notwithstanding the certified review under Form 9, my attention was drawn to a medical report of Dr Tsoi Chi Wah, Danny dated 24 Jul 2014, with more updates on Mr Lee's conditions.  According to this report, Dr Tsoi, a registered medical practitioner, opined that the sick leave given to Mr Lee was less than expected, and that he should have obtained sick leave for up to 6 months, during which he should not have performed any work.  In the light of Dr Tsoi's expert evidence, which has not ever been disputed or controverted by Li Kei, I see no reason not to defer to Dr Tsoi's opinion.

13.  The relevant provisions for computation of an employee's temporary capacity is prescribed under section 10 of the Ordinance.  The relevant part of section 10(1) provides that where temporary incapacity results from the injury of an employee, the compensation shall be either  some prescribed periodical payments or a calculated lump sum, having regard to the probable duration of his  incapacity.  The section also provides that such periodical payments shall be at the rate proportionate to a monthly payment of four-fifths of the difference between the 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.  Furthermore, under section 10(2), a period of absence from duty certified to be necessary by a registered medical practitioner shall be deemed to be a period of total temporary incapacity.  In the light of the above, I compute Mr Lee's compensation for temporary capacity as follows:-

Section 10 compensation for temporary incapacity

= $23,400 x 4/5 x 6

= $112,320.

Payment of medical expenses – Section 10A of the Ordinance

14.  The relevant part of section 10A(1) provides that if, in any employment, personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay the medical expenses for the medical treatment in respect of such injury.  The relevant part of section 10A(3) provides that medical expenses which the employer is liable to pay shall be payable in accordance with the Third Schedule of the Ordinance in respect of the period during which the employee receives medical treatment, until the attending registered medical practitioner certifies that in his opinion, no further treatment is required.  Paragraph 2 of the Third Schedule, inter alia, provides that where an employee is given medical treatment other than as an in-patient in a hospital, the medical expenses payable by the employer are the total amount of the medical expenses incurred or the total amount at the rate of $200 for each day on which medical treatment is given, whichever is the less.  Under section 10AB(2), medical expenses inter alia, include prescribed medicine.  Under section 10AB(3), prescribed medicines is a reference to medicines prescribed by certain registered qualified practitioners.

15.  Insofar as Mr Lee is concerned, he is claiming only a total of $800 under this head.  In paragraph 17 of his witness statement filed on 3 Oct 2013, he says that he had spent only $200 on medication obtained twice in qualified clinic(s) and $600 on analgesics he occasionally needed to purchase at dispensaries.  However, no submission has been made as to what documentary evidence is relied on for the claim of the $200 spent on medication.  As for the $600 on analgesics, they are not claimable as out-patient medical expenses under paragraph 2 of the Third Schedule because they do not fall within the meaning of prescribed medicines under section 10AB. For this reason, the assessment I make under the head of section 10A is nil.

Compensation for permanent partial incapacity – section 9 of the Ordinance

16.  Section 9(1)(b) of the Ordinance effectively 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 Ordinance, such percentage of the compensation which would have been payable in the 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.  Since Mr Lee's back injury is not listed under the First Schedule, his case falls within the scope of section 9(1)(b), but which is premised on section 7 of the Ordinance for its computation.

17.  Section 7(1)(b) effectively provides that where permanent total incapacity results from the injury of an employee, the amount of compensation shall be, in the case where he is 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 Schedule of the Ordinance, whichever is less.  As Mr Lee was around 45 years old at the time of the accident, section 7(1)(b) is relevant in calculating his permanent partial incapacity.  Furthermore, the relevant specified amount for section 7(1)(b) under the Sixth Schedule at the time of his accident was $21,500, as prescribed under Legal Notice 93 of 2010, which took effect from 1 August 2010.  It is this amount which ought to apply to Mr Lee's accident on 25 August 2011, and not $23,400 as claimed on his behalf.  For this reason, the correct computation under section 9(1)(b) as his compensation for permanent partial incapacity is as follows:-

Section 9 compensation for temporary incapacity

= monthly earnings x section 7(1)(b) multiplier x

section 9(1)(b) percentage

= $21,500 x 72 x 4%

= $61,920

Total assessed amount

18.  The total assessed amount to which Mr Lee is entitled is therefore as follows:-

Total quantum of assessment of compensation

= section 10 compensation + section 10A payment + section 9 compensation

= $112,320 + 0 + $61,920

= $174,240

19.  Since Mr Lee has so far not received any payment from Ms Yan's Li Kei, I am satisfied that he is entitled to a total assessed amount of $174,240, which falls short of his submitted claim of $190,512 by $16,272.  If he is still unable to recover from Li Kei, he is of course at liberty, if so advised, to apply for assistance from the Employees Compensation Assistance Fund pursuant to section 17 of the Employees Compensation Assistance Ordinance (Cap 365).

Interest and costs

20.  I also award interest pursuant to Mr Lee’s claim at half the current judgment rate on the compensation awarded from the date of the accident to the date of this judgment, which is in accordance with the usual practice of this court.  As for costs, I make a costs order nisi that costs of the action shall be borne by Li Kei, to be taxed if not agreed, with certificate for counsel, and that Mr Lee's own costs shall be taxed according to Legal Aid Regulations, since he is legally aided.  Should there be no application to vary this costs order within 14 days from the date of this judgment, the order nisi shall become absolute.