LAM KWOK LING v. 陳偉倫

DCEC 419/2020

[2021] HKDC 1176

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 419 OF 2020

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ASSESSMENT OF COMPENSATION

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INTRODUCTION

1.  The applicant seeks compensation from the respondent for the injuries he suffered by reason of an accident which took place on 14 October 2018 at around 1:30 pm (“Accident”).

2.  The respondent has throughout not participated in these proceedings.  Interlocutory judgment on liability was entered against the respondent on 11 December 2020, leaving compensation to be assessed.

3.  The hearing of the assessment took place before me on 30 August 2021.  Mr Marwick Quan of Messrs B Mak & Co appeared for the applicant and the respondent did not attend.  I was satisfied on the evidence that proper service of the relevant documents had been effected on the respondent and therefore decided that the hearing should continue in the respondent’s absence.

THE ACCIDENT

4.  At the material time, the respondent was engaged by one 舒美養生館 (“Customer”) to carry out renovation works at its premises situate at Flat H, 8/F, Alpha House, 79-81 Peking Road, Kowloon (“Site”).  From the quotation dated 25 July 2018 and submitted by the respondent to the Customer (“Quotation”), the renovation works entailed a number of different trades of which carpentry was one.

5.  The applicant was employed by the respondent on a daywork basis. The applicant started working for the respondent on 23 September 2018 and was instructed to predominantly carry out carpentry works at the Site.  In addition to the Site, the respondent was also carrying out other projects.  On a few occasions, the applicant was instructed by the respondent to work at those other projects.

6.  At the time of the Accident, the applicant was working at the Site.  The applicant was fixing a wooden bathtub in position by installing planks around it.  After the planks were fixed at the surrounding edge of the wooden bathtub, the applicant discovered that a plank projected about 3 mm from the vertical boards of the platform. 

7.  The applicant then used an angle grinder which was in essence a mobile electric cutter (“Grinder”) to cut the projected edge.  The Grinder had a cutting disc measured at about 11 cm diameter and a guarding.  He was holding the Grinder with both hands to cut the projected edge.  The cutting disc of the Grinder became “stuck” at a rigid part of the plank, which caused the plank to bounce away from the platform.  The applicant also lost control of the Grinder and it bounced towards his chest and tangled with his shirt.  The applicant then grabbed the Grinder with both of his hands immediately and turned it off. Unfortunately, the applicant sustained injuries as his left middle finger and right littler finger came into contact with the cutting disc of the Grinder.

8.  An accident report was prepared by the Labour Department, the content of which is consistent with how the applicant described the Accident in his evidence as outlined above.  I accept that the Accident happened as described by the applicant.

THE APPLICANT’S INJURIES

9.  Immediately after the Accident, the applicant was sent to the Accident and Emergency Department of the Queen Elizabeth Hospital for emergency treatment.  Medical examination revealed (a) amputation of the applicant’s right little finger distal phalanx and (b) left middle finger deglove injury over the dorsal part with the tendon exposed.  X-ray of both hands showed fracture of proximal phalanx of left middle finger and distal phalanx of right little finger.

10.  The applicant was admitted to the orthopedic ward.  Emergency operation which included right little finger revision amputation and left middle finger debridement and open reduction and internal fixation under general anesthesia was carried out.  He was discharged on 23 October 2018 with further out-patient rehabilitation course and regular follow up.

11.  Another operation was carried out on 29 March 2019 for the removal of plate and tenolysis for the left middle finger.  For that purpose, he was admitted on 28 March and discharged on 1 April 2019.  Further rehabilitation was given.  At the last follow up on 31 October 2019, the applicant’s finger pain was controlled.  The range of motion of the right little finger was satisfactory and the left middle finger had residual stiffness of the interphalangeal joints.

12.  The applicant was granted sick leave from 14 October 2018 to 31 October 2019.

13.  A Form 7 was issued on 18 November 2020.  The applicant was assessed to have suffered from left middle finger and right little finger injuries resulting in left middle finger stiffness and pain and right little finger amputation.  His loss of earning capacity was assessed to be 8%.

THE APPLICANT’S CLAIMS

14.  The applicant advances claims for compensation pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance Cap 282 (“Ordinance”).

The applicant’s earnings

15.  As mentioned above, the applicant started to work for the respondent on 23 September 2018.  Between 23 September and 14 October 2018 (ie the date of the Accident), there were 22 calendar days.  In other words, the applicant had worked for less than a month for the respondent.

16.  It is the applicant’s evidence that his daily wage was HK$1,300 per day with an overtime rate at HK$650 per two hours.  The applicant gave evidence that he was paid HK$9,000 by the respondent after the first week of his employment.  During the first week, the applicant had worked on 23, 26-30 September 2018 (ie 6 working days) and two overtime shifts on 27 and 30 September 2018 (each of 2 hours).  The wages which he had earned during the first week was HK$9,100, which was very close to what he was paid by the respondent.  I accept the applicant’s evidence.

17.  Between 23 September and 14 October 2018, the applicant had worked on 17 days[1] and carried out overtime for 5 two-hour shifts.[2]  His earnings during those 22 calendar days were therefore [HK$1,300 per day x 17 days + HK$650 per overtime shift x 5 shifts =] HK$25,350.

18.  Mr Quan submits that it is appropriate for me to rely on the second limb of section 11(1)(b) of the Ordinance which provides:-

“Subject to this section, for the purpose of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings –

(a) …

(b) computed in such manner as is best calculated to give the rates per month at which the employee 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 calculation is more favourable to the employee.”

(emphasis added)

19.  Section 11(1)(b) of the Ordinance was considered by the Court of Appeal in Or Wing Ming v Ho Bing Chi t/a Tin Kei Decoration Engineering Co, CACV 319 of 2007, 13 June 2008.  Chung J (with whom Yeung JA agreed) held that for an applicant who was employed for less than 1 month, the monthly earnings to be adopted for the purpose of the Ordinance could be calculated under section 11(1)(b) by referring to the actual earnings received by the applicant during that period, provided that it was practicable to calculate the monthly income from the actual earnings.  See also Ma Siu Fai v 高占遠 t/a 利來裝飾設計 & Ors [2021] HKDC 682 §§31-33.

20.  In the present case, of the 22 calendar days between the commencement of the applicant’s employment to the date of the Accident, he was instructed to work for 17 days and 5 two-hour shifts of overtime.  The question is how many more days the applicant would have worked during the period between 15 and 22 October 2018 but for the Accident and is there sufficient evidence to enable a practicable calculation.

21.  The evidence given by the applicant was as follows.

(1)   The renovation works at the Site were in delay.  According to the Quotation, the renovation works were to be completed within 45 working days from 26 July 2018 (ie by around mid-September 2018). 

(2)   As at the date of the Accident, the renovation works were far from being completed (and this is borne out by the photographs taken of the scene of the Accident).

(3)   Therefore, the applicant was requested by the respondent to work as many days as possible.  This is consistent with the fact that the applicant worked on a number of Sundays, including 23 September (his first day of employment by the respondent), 30 September and 14 October 2018 (ie the date of the Accident).

22.  Whilst I do not believe that the applicant would have worked every single day of the 9 calendar days between 15 and 22 October 2018, I accept Mr Quan’s submission that, considering the totality of the evidence, the applicant would likely have worked for at least an extra 6 days given that the applicant had worked 17 out of the 22 calendar days prior to the Accident which included 2 public holidays (Mid-Autumn Festival and National Day).

23.  I therefore accept Mr Quan’s submission that the monthly earnings of the applicant at the time of the Accident were [HK$1,300 per day x 23 days + HK$650 per overtime shift x 5 shifts =] HK$33,150.

24.  Whilst I accept that the foregoing calculation represents a level of earnings which is higher than that earned by the applicant prior to his employment by the respondent, it seems to me that this is readily explainable. Prior to being employed by the respondent,[3] the applicant was employed or engaged by various contractors.  The duration of such employment would depend on the availability of work.  However, the evidence before me is that the renovation works at the Site were in delay and far from complete and the respondent had instructed the applicant to work on as many days as possible (which evidence I accept).  Further, from the information compiled by the Construction Industry Employees Federal Union, it appears that the wages for construction works were generally on an uptrend between 2017 and 2019 which suggests that construction workers such as the applicant were in demand at the material time.

Compensation under section 9 of the Ordinance

25.  The applicant was born on 18 May 1964 and was aged 54 at the time of the Accident.  The suitable multiplier is 72.

26.  As set out above, the applicant’s loss of earning capacity is 8%.

27.  I find that the applicant is entitled to the following compensation under section 9 of the Ordinance: HK$28,360^[4] x 72 x 8% = HK$163,353.60.

Compensation under section 10 of the Ordinance

28.  The applicant was granted 383 days of sick leave from 14 October 2018 to 31 October 2019. 

29.  I find that the applicant is entitled to the following compensation under section 10 of the Ordinance: HK$33,150 x 383/30 x 4/5 = HK$338,572.

Compensation under section 10A of the Ordinance

30.  The applicant has adduced evidence that, based on the statement of accounts issued by the Queen Elizabeth Hospital, he had incurred medical expenses in the sum of HK$10,070.  I find that the applicant is entitled to the said sum under section 10A of the Ordinance.

31.  The total compensation is therefore assessed at HK$ [163,353.60 + 338,572 + 10,070 =] HK$511,995.60.

32.  I also award interest on the compensation assessed at interest at half judgment rate from the date of the Accident until the date of this assessment and thereafter at judgment rate until payment.

CONCLUSION

33.  For the above reasons, the applicant is awarded compensation at a total sum of HK$511,995.60 together with interest thereon against the respondent.

34.  I further make a costs order nisi that the costs of this action be paid by the respondent to the applicant to be taxed if not agreed. Should there be no application to vary the costs order nisi within 14 days from the date of this assessment, it shall become absolute.

35.  I thank Mr Quan for his assistance.