YANG YINGPING v. 王映文經營之成業設計裝飾工程

DCEC 1027/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1027 OF 2010

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JUDGMENT

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Background

1.  Pursuant to Application dated 31 August 2010, the Applicant Mr. Yang Ying Ping ("Mr. Yang") claims for employee compensation in relation to an accident at work on 9 September 2010 under s.9, s.10 and s.10A of the Employees' Compensation Ordinance, Cap. 282, Laws of Hong Kong ("the Ordinance").

2.  Mr. Yang also claims for an extension of entitlement to periodical payments for such further period as the Court may allow pursuant to Section 10(5) of the Ordinance.

3.  At trial, Mr. Leung (who appeared for Mr. Yang) informed that Court that Mr. Yang would no longer pursue his claim under Section 10(5) of the Ordinance.

4.  Mr. Yang was employed by the Respondent (an interior designing and construction firm) as a labourer at the material time.

5.  On 9 September 2009, while in the course of employment with the Respondent, Mr. Yang was instructed to work at Shop M-2, Ground Floor, Tak Man Building, 29 Tak Man Street, Hung Hom, Kowloon, Hong Kong.  Mr. Yang was responsible for assisting a carpenter in installing a signboard at height.  While Mr. Yang was carrying a wooden plywood and climbing up a wooden A-ladder, he lost his balance and fell onto the ground.  He suffered injuries to his head as result.

6.  Mr. Leung was assessed by the Employees' Compensation (Ordinary Assessment) Board ("the Board") on 13 October 2010 and 20 July 2011.  He was said to have suffered head injury resulting in tinnitus, post-concussional syndrome ("PCS") and post-traumatic stress disorder ("PTSD").  The loss of earning capacity permanently caused by such injury was said to be 7%.

7.  Judgment on liability was entered on 15 July 2011 against the Respondent.  This trial deals only with assessment of the amount of compensation payable to Mr. Yang.

8.  The Respondent was absent at trial despite being served all relevant papers.

9.  I allowed trial to proceed in the absence of the Respondent.

Evidence

10.  There is only one witness at trial, i.e. Mr. Yang himself.

11.  So far as medical evidence is concerned, Mr. Leung relied on Form 7 dated 3 August 2011 issued by the Board.

12.  Various medical reports from Queen Elizabeth Hospital ("QEH") and Yung Fung Shee Psychiatric Centre ("YFSPC") at United Christian Hospital are produced in the Court Bundle.

13.  Mr. Leung also relied on various medical certificates and receipts issued by QEH and YFSPC.

Discussion

Compensation under Section 9

Loss of Earning Capacity

14.  As mentioned, Mr. Leung was assessed by the Board to have suffered from 7% loss of earning capacity.

15.  Mr. Yang was 43 years old at the time of the accident.

16.  When Mr. Yang was admitted to the Accident & Emergency Department of QEH, he was found to have subdural haemorrhage and subarachnoid haemorrhage.

17.  He was diagnosed to have suffered from tinnitus at QEH.  Mr. Yang was subsequently referred to YFSPC for PCS, where he was diagnosed to have suffered from PTSD.

18.  He was assessed by the Board to have suffered from tinnitus, PCS and PTSD, at a loss of earning capacity of 7%.

19.  Mr. Leung asked the Court to adopt 7% in assessing compensation under Section 9.

20.  Mr. Yang's injury is not listed under the First Schedule to the Ordinance.

21.  Section 9(1)(b) of the Ordinance provides that, in the case of an injury not specified in the First Schedule, the compensation payable shall be 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 that time, provided that (under paragraph (ii) of the proviso) the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentage specified in the First Schedule and to the Note thereto.

22.  As there is no similar injury listed under the First Schedule and having considered all the medical evidence before me, I am satisfied that the appropriate percentage of loss of earning capacity in this case is 7%.

Mr. Yang's Average Monthly Earning

23.  In his Application, Mr. Yang claims that his monthly earnings for the month immediately preceding the accident was HK$9,100.00 and on average during 12 months (or any lesser period of employment with the employer) prior to the accident was also HK$9,100.00.

24.  This amount was calculated on the following basis:

HK$350 daily wage x 26 days = HK$9,100

25.  It is also pleaded that Mr. Yang was entitled to free meal from the Respondent.

26.  In his witness statement, which Mr. Yang has adopted as his evidence in chief, it is said that his daily wage was HK$350.00 with no overtime payment.  The Respondent would provide 3 meals a day for Mr. Yang, the value of which he estimated to be no less than $100.00 per day.

27.  His monthly earnings was thus calculated in the following ways:

(HK$350 daily wage + HK$100) x 26 days = HK$11,700.00

28.  I have asked Mr. Yang to clarify how he comes up with the estimated amount of HK$100.00.

29.  Mr. Yang said that the Respondent would take them to Chinese restaurants for breakfast.  For lunch, they would attend Chinese restaurants or local cafes.  The Respondent would cook them dinner sometimes but they would also go to Chinese restaurants.

30.  According to Mr. Yang, the cost per meal was approximately HK$30 odd.  Thus, the costs of 3 meals would be around HK$100.00.

31.  In view of all the evidence before me, I am satisfied that Mr. Yang's average monthly earnings at the time of the accident was HK$11,700.00.

32.  Mr. Yang was aged 43 at the time of the accident.  According to s.7(1)(b) of the Ordinance, he would be entitled to compensation equals to 72 months' earnings or 72 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(b) specified in the first column of that Schedule, whichever is the less.

33.  The amount specified in the second column of the Sixth Schedule is $21,500.00.  I am bound to adopt Mr. Yang's average monthly earnings in the sum of $11,700.00 in calculating compensation under section 9.

34.  For reasons stated above, I award damages under section 9 as follows:-

HK$11,700 x 72 x 7% = HK$58,968.00

Compensation under Section 10

35.  In Mr. Yang's witness statement (which was dated 19 August 2011), it is said that sick leave was granted up to 11 August 2011 (total of 497 days).

36.  I note that the Board certified Mr. Yang's sick leave up to 20 July 2011.

37.  Medical certificates issued by QEH and YFSPC as produced in the Court Bundle covers sick leave up to 4 October 2011.

38.  Mr. Leung has listed out Mr. Yang's sick leave in his written opening as follows:

From 9/9/2009 to 7/4/2010

From 1/9/2010 to 9/9/2010

From 14/9/2010 to 20/9/2010

From 12/10/2010 to 14/10/2010

From 17/10/2010 to 19/10/2010

The day of 1/11/2010

From 8/11/2010 to 9/11/2010

The day of 19/11/2010

From 29/11/2010 to 11/8/2011

The day of 4/10/2010

39.  I have asked Mr. Yang to clarify when his sick leave in fact expired at trial.

40.  According to Mr. Yang, since the date of his witness statement, he continued to attend out-patient treatments at QEH and YFSPC, where he was granted more sick leaves.

41.  He was given sick leave by YFSPC for the day of 4 October 2011 (the medical certificate covering the same can be found in the Court Bundle), as well for the day of 11 August 2011 by QEH.

42.  The medical certificate issued by QEH for the 11 August 2011 sick leave was produced at trial, which I have accepted as evidence.

43.  In the light of the above, I am satisfied that Mr. Yang's length of absence from duty for the purpose of section 10 is 499 days.

44.  Mr. Yang confirmed that he has never received any periodic payment from the Respondent since the accident.

45.  I therefore find that the compensation payable to Mr. Yang under section 10 is:

HK$11,700 x 499/30 x 4/5 = HK$155,688.00

Compensation under Section 10A

46.  Mr. Yang claims a total sum of $3,772.00.

47.  Mr. Leung has helpfully listed out the various heads of claims in his submission, this includes the medical expenses incurred at QEH, YFSPC, Yau Ma Tei Jockey Club GOPC and a visit to Dr. David Chan.

48.  Such expenses were supported by documentary evidence.  I shall allow the claim in full.

Conclusion

49.  I find the total compensation payable to Mr. Yang is:

50.  The above sum shall carry interest at half judgment rate from date of accident until date of judgment, and shall carry interest at judgment rate until full payment.

Order

51.  Judgment is entered against the Respondent in the sum of HK$218,428.00 with interest as aforesaid.

52.  I also order costs to Mr. Yang, to be taxed if not agreed.