LAW WAI KEUNG v. POVIMASS DESIGN ENGINEERING (HK) LTD

DCEC2743/2018

[2020] HKDC 1044

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 2743 OF 2018

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ASSESSMENT OF COMPENSATION

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1.  This is an employees’ compensation assessment. Interlocutory judgment has been entered against the respondent on 21 June 2019.

Background

2.  The applicant, Mr. Law Wai Keung, was employed by the Respondent to install exhibition stands. The applicant fell off a ladder during employment on 10 April 2017.

3.  Mr. Law attended the Accident and Emergency Department of Pamela Youde Eastern Hospital (“PYNEH”) and was admitted with a diagnosis of fracture of left neck of femur. He underwent an operation and was discharged 3 days later, making an uneventful recovery with the fracture healed with good alignment.

4.  Mr. Law attended physiotherapy and occupational therapy sessions from mid to late 2017. He was also being followed-up in the O&T department of PYNEH. By 1 February 2019, the doctors noted that he was able to walk unaided without pain.

5.  Form 9 (which is not disputed) confirmed that the total sick leave granted was from 10 April 2017 to 11 April 2019, and the loss of earning capacity permanently caused by the injury was assessed at 4%.

Mr. Law’s job nature and monthly income

6.  Mr. Law claims that his earnings for the month immediately before the accident was HK$20,000.

7.  This calculation was based on a claimed daily wage of HK$800 plus overtime pay of HK$200 per hour from 6pm to midnight. He claimed that he earned HK$2,000 per day and further claimed that, on average, he worked 10 days a month.

8.  However, Mr. Law did not produce any documents (e.g. bank statement, employment contracts etc.) to support this claim.

9.  Mr. Law gave further details about his work in court.

10.  Mr. Law described the respondent as a medium-sized company which employed around 20 installers to put up exhibition stands. A typical job would be for the installation of about 4-5 stands for each exhibition. The respondent was run by a Mr. Koo Kin Ming (“Mr. Koo”).

11.  From 2014, Mr. Law was employed by the respondent as a “freelance” installer. He would be called by Mr. Koo when there was a job but he said Mr. Koo was not that good in getting business and so he was “not busy”. On a busy month, Mr. Law might get called by Mr. Koo about 3 times. On a quiet month (November and December), he might only get called once or not called at all.

12.  When there was a job, Mr. Law would attend one of the exhibition venues to install the stands. The job of installation might take 1-3 days (and might sometimes need overtime work). An exhibition would go for 2-3 days and then he would return to dismantle the stands. The dismantling would take much quicker: only one day with no need for overtime.

13.  As the income was unsteady, Mr. Law started to work as a security guard on 15 June 2015 with a monthly salary HK$13,000. However, he did not get on with his colleagues so he quitted on 5 June 2016. Mr. Law then started a security guard job with another employer on 22 June 2016 but he quitted again on 9 October 2016 because, as Mr. Law claimed, the company was short-staffed and the work burden was too heavy for him.

14.  Mr. Law then called up Mr. Koo and this time, Mr. Koo employed him as a “full-time employee” and the daily wage was increased to HK$800 because of Mr. Law’s expertise in cutting wood etc. and not just as a general labourer (who would only be paid HK$400-500 per day).

15.  However, even as a claimed “full time employee”, there was apparently no change in how Mr. Law obtained work. Mr. Koo would still be calling him up whenever there was a job but Mr. Law claimed that now, he got called every 5-6 days. He also claimed that on a quiet month like November and December, there would be about 2-3 exhibitions and so he worked about 8-10 days. However, on busy months, he would work 15 days, so the average was about 10 days a month.

16.  Further, when asked whether there was any change with Mr. Koo and his business this time, Mr. Law said “it was just the same.”

17.  I find that it likely that Mr. Law is exaggerating his claim.

18.  Firstly, Mr. Law quitted the installer job because the income was unsteady. Then he was earning HK$13,000 per month as a security guard. He quitted that because of various dissatisfactions with the job and not because he found a higher paid job. Now, out of a job, he had to call up Mr. Koo again. It was not as if Mr. Koo was actively “poaching” him because he was in desperate need of an installer. As admitted by Mr. Law, there was no change in Mr. Koo’s business.

19.  As such, I would find it unlikely that Mr. Law would get paid HK$20,000 under the circumstances, as this would mean he was earning 50% plus more than his last job as a security guard.

20.  Further, given that Mr. Koo’s business had remained largely the same, there was no evidence from Mr. Law, besides a bare assertion, to explain why he was working more days in 2016 compared to 2014.

21.  I would therefore find that there should be no increase in his work days from 2014 to 2016. Mr. Law was injured in April, so the month preceding it, March, would have been a busy month. He would have taken 3 calls for jobs from Mr. Koo. Each job would take 1-3 days. I would take the average as 2 days and, to be on the generous side, assume that both days required 6 hours of overtime. Then there would be one day (without overtime) for dismantling the stands.

22.  As such, I find that Mr. Law should have been working 9 days each month, of which 6 days that he could earned overtime pay.

23.  I would also doubt why, given the circumstances, Mr. Koo would suddenly offer a higher daily wage to Mr. Law from HK$700 to $800. Mr. Law confirmed in court that the raise was not because of some trade practice, but simply because he had some better skills than the usual general labourer like cutting wooden panels. Mr. Law did not provide any evidence as to how he acquired those skills, and I find it unlikely that he would acquire such skills working as a security guard.

24.  I would therefore only accept HK$700 as his daily wage.

25.  As such, I find that his earning in the month preceding the accident should be:

          HK$700 x 9 + HK$200 x 6 x 6 = HK$13,500

Quantum

26.  The compensation under Section 10 should be:

          HK$13,500 x 4/5 x 730/30 = HK$262,800

27.  The compensation under Section 9 should be:

          HK$13,500 x 72 (Mr. Law was 53 at the time of the accident) x 4% = HK$38,880

28.  For the compensation under Section 10A, Mr. Law has produced a list of PYNEH attendance and fee paid between 10 April 2017 to 1/2/2019. This amounts to a total of HK$2,750 paid.

29.  However, I note that the list does not contain any information regarding the diagnosis and purpose of the attendance. There was one entry, dated 28 September 2018, which was for an A&E attendance. This was well after the original accident and there was no evidence from any medical report that suggested that there was a medical emergency related to the injury. Mr. Law said that he could not remember what the consultation was about.

30.  On balance, I am of the view that this should not be related to the accident and would therefore discount this item (HK$180). As such, the compensation should be:

          HK$2,750 -180 = HK$2,570

31.  The total compensation should be HK$304,250.

32.  Mr. Law has provided evidence to show that the respondent has paid a total of HK$11,500 subsequent to the accident. This should be deducted from the sum above.

33.  The sum payable by the respondent should therefore be HK$304,250 – 11,500) = HK$292,750.

Order

34.  The respondent shall pay the applicant a sum of HK$292,750 together with interests at half judgment rate from the date of the accident (10 April 2017) to the date of the judgment, and thereafter at judgment rate until payment.

35.  Costs of the action be to the applicant to be taxed if not agreed.