LOK KIN WA v. LA CREME DESIGN LTD

DCEC 865/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 865 OF 2014

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ASSESSMENT OF COMPENSATION
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Background

1.  This is an assessment of compensation of an employee’s compensation case. Interlocutory judgment on liability was entered on 24 October 2014 with compensation to be assessed. The applicant claims compensation against his then employer pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”).

2.  The respondent has all along been absent for all hearings, including the assessment hearing.  The assessment was conducted in the absence of the respondent.

The Accident

3.  The applicant had been employed by the respondent since May 2010 as a casual general worker.  His duties included drilling concrete and delivering building materials at construction site and delivery of furniture.  He earned HK$600 per day. 

4.  On 5 May 2012, when the applicant was under the respondent’s employ, he was assigned to carry a large glass panel for installation in Aberdeen Marina Club at Shum Wan Road, Aberdeen, Hong Kong.  The glass panel suddenly broke and, as a result, the applicant suffered a 3 cm laceration wound over the dorsum of his left index finger. 

5.  The applicant was sent to the A&E Department of Ruttonjee and Tang Shiu Kin Hospitals.  His wound exploration showed tensor tendon cut.  He was then transferred to the orthopaedic ward of Pamela Youde Nethersole Eastern Hospital on the same day.  After undergoing an emergency operation on his extensor tendon repair, the applicant was discharged on 6 May 2012.  

The Assessment

6.  The applicant himself came to court to give evidence.  He adopted his witness statement as his evidence-in-chief. 

7.  The applicant was born on 18 February 1965.  He was 47 years old at the time of the accident.

8.  According to the Form 9 issued on 28 November 2013, the applicant’s loss of earning capacity caused by the injury was assessed at 2 % and the period of absence from duty was certified from 5 May 2012 to 15 March 2013, totalling 315 days.

9.  In the absence of any section 18 appeal, the Form 9 is the only evidence on the applicant’s loss of earning capacity and the length of sick leave pursuant to section 16H of ECO and Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413.  I adopt the Form 9 and find that the applicant’s loss of earning capacity be 2% and the length of sick leave be 315 days.

The Applicant’s Income

10.  In the absence of any contradictory evidence, I attach full weight on the applicant’s evidence on his income. 

11.  The applicant gave evidence that he first worked for the respondent for about two years before the accident as a casual worker paid on daily basis.  Later, he also worked for other employers, and some payrolls and salary tax records have been provided. 

12.  For the month before the accident, he had worked for the respondent just for three days.  The remaining days of that month, he had worked for other employers.  

13.  Miss Chiu for the applicant submitted that due to the casual nature of the applicant’s employment, the applicant cannot rely on section 11(1)(a) of the ECO which provides that the earnings of the month immediately before the accident.  Miss Chiu invites the court to rely on section 11(2), the second limb, which provides that if there is no person so employed, the court can refer to a person of similar earning capacity in the same grade employed in the same class of employment in the same district.  Therefore, the applicant, who worked as a casual general worker for 12 months before the accident, taking 26 to 27 days per month at a daily wage of $600 be regarded as earning about $15,600 per month. 

14.  Miss Chiu also supplied the court with statistics published by the Census and Statistics Department about the average daily wages of a general labourer working at construction sites ranged from HK$603.7 to 620.5 for the period from May 2011 to April 2012. 

15.  After consideration, I accept the applicant’s submission and I apply the second part of section 11(2) of the ECO to assess the applicant’s monthly income be HK$15,600 per month (daily wages of $600 × 26 days).

Permanent Partial Incapacity Compensation under Section 9

16.  I agree with Miss Chiu that the multiplier to be adopted for calculating compensation under section 9 should be 72.  As the applicant was 47 years old, not yet of 56 years of age at the time of the accident, pursuant to section 7(1)(b) of ECO.  The calculation of compensation under section 9 should be:

HK$15,600 × 72 × 2% = HK$22,464. 

Temporary Incapacity Compensation under Section 10

17.  The calculation under this head is:

HK$15,600 × 4/5 × 315/30 = HK$131,040.

Medical Expenses Compensation under Section 10A

18.  The applicant claims HK$3,156 as medical expenses at the public hospitals and clinics.  Applicant has provided receipts in support.  Out of the sum claimed, $50 was claimed for prescribed medicine and the remaining claimed as medical expenses. 

19.  According to section 10AB, the respondent’s liability to pay medical expenses under section 10A includes the liability to pay for expenses incurred for prescribed medicine.  Therefore, I allow the medical expenses in full under this head.

Advance Payment

20.  The applicant has received HK$26,412 as advance payment made by the respondent.  The applicant concedes that such sum to be deducted from his compensation.

Conclusion and Order

21.  For the reasons above, I award the applicant compensation as follows:

(1)     Section 9	HK$ 22,464
(2)     Section 10	HK$131,040
(3)     Section 10A	HK$ 3,156
Less advance payment	(HK$ 26,412)
Total:	HK$130,248

22.  I also award interest on the above compensation at half judgment rate from the date of the accident to the date of judgment and thereafter at full judgment rate until payment.

Costs

23.  The usual costs order is made.  The respondent shall pay the applicant’s costs, to be taxed if not agreed, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.