CHAN NGAI SHING v. 黃北豪

DCEC943/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 943 OF 2009

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ASSESSMENT OF COMPENSATION

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1.  The Applicant applies for compensation under Section 9 and 10A of the Employees’ Compensation Ordinance. Judgment against the Respondent has been entered on 23 March 2011 by H.H. Judge Poon due to the default of appearance by the Respondent, or to file an answer to the application.

2.  The applicant was employed by the respondent to work at Sai Kung Tai Po Tsai Village to demolish a window frame of a house on 10 February 2007.  At around 11 am, while assisting a colleague to hold a window frame when he was cutting the concrete wall, the applicant was hit by a piece of debris in his left eye. 

3.  Due to the injury, he sustained serious damage to his left eye, resulting in the loss of vision in his left eye.  He suffered further from hyphaema and corneal abrasion, left upper eye lid laceration, rupture left eyeball with foreign object embedded, partial thickness conjunctival laceration of the nasal region, left traumatic cataract and left small superior iridodialysis.

4.  The applicant was hospitalised for 11 days, during which time he received an operation to remove the foreign body in his left cornea, to repair his ruptured eyeball, and he further received a cataract operation on the left eye to insert an intra-ocular lens.  His visual acuity on his last visit to the Caritas Medical Hospital in October 2008 was 3/60. 

5.  He now claimed his left eye tired easily with poor vision on the left eye. 

Medical Assessment Board general assessment

6.  On the re-assessment the Board assessed the loss of the Applicant’s earning capacity permanently caused by the injury to be 25 per cent, that his absence from duty necessary as a result of the injury to be 105 days from 10 December 2007 to 14 April 2008, and 26 May 2008 and 28 July 2008. 

7.  The Applicant lodged a Notice of Accident at the Labour Department on 14 December 2007, but the employer failed to file a Form 2 at the Labour Department.  The applicant was paid a $300 daily wage.  He claimed he worked 26 days a month, his monthly salary was $7,200 per month while he was employed by the employer, the Respondent. He was 16 years of age at the time of the accident. 

The quantum assess

Under section 9:

8.  Based on the Applicant’s claim of $7,200 per month salary, and under section 7 of the Ordinance, the Applicant who is under 40 years of age, a multiplier of 96 is applicable. Based on schedule 1, a loss of permanent and incapacity was assessed by the MABS at 25%.  I adopt the same percentage in the Ordinance under schedule 1. The compensation is ($7,200 x 96 x 25%) $172,800.   

Under section 10:

9.  The medical and sick leave certified by the Caritas Medical Centre doctors was 105 days. Based on the days allowed by the Medical Assessment Board, $7,200 monthly wage divided by 26, multiplied by 105 times four over five, the sick leave pay amounts to $23,261.54.   

Under section 10A:

10.  The Applicant claimed medical expenses for his treatments at the Caritas Medical Centre.  According to the applicant, they had been paid by him, but reimbursed by his employer, the Respondent, in 2008.

11.  The Applicant also claimed a surcharge under section 16A(10)(a) and (b) for the Respondent’s delay in payment of the compensation claim.  This remedy is applicable after an assessment by the Commissioner of Labour.  That is, if the Applicant consented to the Commissioner of Labour’s assessment, and if he failed to pay after the assessment by the Commissioner of Labour, the delay would attract a surcharge. Unfortunately the respondent had never responded to the Labour Department’s request, nor filed an employer’s Form 2.  That is why the Applicant applied to the court for compensation.  Judgment was entered on 25 March this year.  The assessment is made today.  Therefore, section 16A(10)(a) and (b) are not applicable.  I reject the Applicant’s application for overcharge or surcharge for it is not yet due. 

The summary of the Applicant’s compensation

12.  

Interest

13.  Interest is payable by the respondent from the date of accident to the date of judgment at half judgment rate, and thereafter a judgment rate. 

Costs

14.  Costs to be borne by the Respondent, to be taxed if not agreed.  Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.