Chan Hing-chin v. Mok Chi-cheong and Another

DCEC844/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 844 OF 1999

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J U D G M E N T

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1. This is a claim for employees compensation. The applicant who was employed by the respondents as a motor technician suffered injury in the course of his employment on 5 November 1998. This being a fracture of his left ankle.

2. This matter was defended by the respondents on the basis that the applicant was not an employee but an independent contractor. An answer was put in to that effect. The respondents were represented by solicitors. Subsequently those solicitors applied to the court for leave to cease to act on behalf of the respondents. The matter was considered by me on 4 February this year and based on the evidence which had been put in by the solicitors, I gave them leave to cease to act.

3. Whilst the respondents were still represented, this trial date was appointed and so I am satisfied that the respondents have had proper notice of the hearing. Today they do not appear, nor are they represented, and so I have allowed the applicant to prove his case. He has given evidence himself based on his witness statement and I have also received the evidence of Dr Lam who has examined him. Dr Lam has put in a report setting out his medical findings and his conclusions based on those findings.

4. I accept the evidence of the applicant, as I do the evidence of Dr Lam, and I have also allowed Ms Leong who appears for the applicant to put in evidence all the documents which are in the trial bundle in support of the applicant's case. Based on all of that evidence, I have come to the conclusion that the applicant was indeed employed by the respondents and that he was injured in the course of his employment and arising out of that employment.

5. Accordingly, there must be judgment on liability in favour of the applicant.

6. I now turn to the issue of compensation. Firstly, the claim under section 9. I accept the applicant's evidence that his average earnings were $9,800 a month. That figure must be multiplied by the 96 months based on the applicant's age. At the date of the accident he was then aged 38 multiplied by a 7 per cent loss of earning capacity, that is based on Dr Lam's assessment of the matter which I accept, so the claim under section 9 produces a figure of $65,856.

7. As to the claim for periodical payments under section 10, there is a total there of 156 days supported by medical certificates and so doing the exercise under section 10: $9,800 multiplied by four-fifths of that amount as required by the section, multiplied by the 156 days when he was off work, that gives a total of $40,768.

8. There is a small claim under section 10A in respect of medical expenses of $200 and so under those three sections, that then makes a total of $106,824 to which interest must be added from the date of the accident until today at half the judgment rate. That gives a total of $16,301.34 in respect of interest.

9. The total amount of the award therefore is $123,125.34 and on that amount the applicant is entitled to interest at the judgment rate from today until payment together with an order for costs of the application to be taxed on a party and party basis, and legal aid taxation of the applicant's costs.