CHOW TAK YEUNG v. SIL WAIN ENGINEERING COMPANY LTD AND ANOTHER

DCEC 1058/2021

[2024] HKDC 1555

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1058 OF 2021

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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Introduction

1.  This is the trial of a claim under the Employees’ Compensation Ordinance (Cap 282) (“ECO”).

2.  The applicant is a casual worker who used to undertake demolition works for various contractors.

3.  On 25 August 2019, the applicant accepted work from the 1^st respondent to carry out demolition works at a closed-down restaurant located at G/F and 1/F, 93-95 Leighton Road, Causeway Bay, Hong Kong (“the Site”). The applicant was only required to demolish the interior of the kitchen (including all kitchen equipment and metal brackets) located at 1/F of the Site. The 1^st respondent is a sub-contractor, responsible for the demolition work, for and on behalf of the 2^nd respondent, the principal contractor of the renovation project to be carried out at the Site. The site area is about 2,000 sq ft (1,100 sq ft for the G/F and 860 sq ft for the 1/F).

4.  On 31 August 2019, which was the applicant’s last day of work, he was using an electric angle grinder to remove the anchor bolts of a metal bracket at around 4:00 pm. The applicant was not wearing any protective goggles, but only his pair of reading glasses. During that time, some metal fragments were propelled into his left eye, causing a serious injury (“the Accident”). He went downstairs to rinse his eye with tap water, and he applied some eye drops, which he purchased on his way home. On arriving home, the applicant still felt some discomfort in his left eye, but he did not think it was serious, and he went to bed that night. At around 4:00 in the following morning, the applicant could no longer stand the pain in his left eye and went to the hospital. He was admitted to the emergency department and diagnosed with an ulcer in his eye. He was referred for an eye operation on the following day and several more corneal grafts and eye operations in the following weeks. He was discharged from the hospital on 30 September 2019. He continued to receive medical treatments over the following months. He was on sick leave for 17 months. He almost lost all his vision in his left eye and could only see blurred images. He could no longer work as a demolition worker or on a construction site but had to work as a security guard instead.

5.  By an application dated 27 May 2021, the applicant claims compensation under sections 9, 10 and 10A of the ECO for permanent partial incapacity, periodical payments and medical expenses, respectively.

6.  On 19 November 2021, by the order of HH Judge Harold Leong, an interlocutory judgment on liability was entered against the 1^st respondent in default of answer to the application, leaving compensation to be assessed (“the Interlocutory Judgment”).

7.  The 1^st respondent applied to set aside the Interlocutory Judgment on 2 November 2022; but its application was dismissed by HH Judge Levy on 7 March 2023.

8.  Although judgment on liability had been entered against the 1^st respondent, Ms So Yuk Yan (“Ms So”), the director of the 1^st respondent, would give evidence at trial in support of the 2^nd respondent regarding liability, while she would address on the quantum for and on behalf of the 1^st respondent.

9.  The 2^nd respondent denies liability and the applicant’s income as to quantum.

10.  At trial, I granted the applicant leave to amend the Application to include his reliance on s 62 of the Evidence Ordinance (Cap 8) in respect of two Magistrates’ Court convictions, namely the respondents’ failure to provide suitable googles and safety helmets and the 1^st respondent’s failure to take out workers’ compensation insurance, which I shall discuss further below. Leave was also granted to the 2^nd respondent to file the Amended Answer for its opposition.

Liability

The Accident

A. The medical experts’ evidence

11.  Both parties appointed ophthalmology experts. The applicant appointed Dr Cheung Sek Hong (“Dr Cheung”) and the 2^nd respondent appointed Dr Tsui Chung Wan (“Dr Tsui”). They submitted to the court a joint medical report dated 22 September 2022 (“the Joint Report”).

12.  In the Joint Report, the experts agreed that the applicant allegedly suffered from a foreign body type of eye injury to his left eye at work on 31 August 2019. As his left eye was painful, he attended AED of United Christian Hospital (“UCH”) at 06:39 hours on 1 September 2019 when a corneal ulcer 2mm x 2mm was observed on his left eye. He was referred to be seen at the eye department of UCH, and when he was seen on 2 September 2019, the corneal ulcer had deteriorated to 3.5mm x 3.5mm. There is no dispute that the applicant’s left eye was infected with Pseudomonas aeruginosa (P. aeruginosa) infection.

13.  The 2^nd respondent’s defence relied heavily on the clinical notes and medical reports, which indicated that no foreign body was found in the applicant’s eyes. It was therefore argued that the applicant’s injury or ulcer was not caused by the Accident. However, I find that the 2^nd respondent’s argument is misconceived.

14.  I accept Dr Cheung’s opinion on the “foreign body to the eye” symptoms. He mentioned that “foreign body sensation” is only a symptom, which does not necessarily mean that the foreign body is still in the eye. It is possible that the foreign body may have fallen out after rinsing with tap water, or as this court later found, the foreign body may have simply scratched through the surface of the cornea in the eye.

15.  On the other hand, Dr Tsui’s dissenting opinion was based on his assumption that any metal fragment propelled from an electric grinder would usually be embedded in the cornea and would result in a larger corneal wound. He was of the opinion that the small area of corneal ulcer at the beginning could not have been caused by a metal fragment but only by the fact that the applicant had rinsed his eye with tap water and rubbed his eye.

16.  Dr Tsui gave an example to the court to explain why he did not believe that the applicant’s eye was injured by a metal fragment. He said that he often received patients who had cut their cornea when turning the page of a book or magazine. He demonstrated to the court how to face forward and turn the page at the same time. He further explained that if the applicant was facing forward and was hit by the metal fragment, the metal fragment must have penetrated and embedded in the eye, resulting in a larger wound on the cornea.

17.  This court rejected Dr. Tsui’s example at trial because there is no rule that one must face forward to be injured by flipping the pages. There is also no evidence that the applicant did not turn his head slightly to the side when he pulled the trigger of the grinder, especially since he was not wearing any protective goggles. Dr Tsui then accepted that all this could be the case.

18.  In fact, Dr Cheung was fair in accepting Dr Tsui’s different opinion that eye rubbing and rinsing with tap water would make the eyes more susceptible to abrasion. However, I also agree with Dr Cheung that the real cause of the eye rubbing was the presence of foreign bodies or a history of foreign bodies in the eyes, which Dr Tsui did not give due consideration. I accept Dr Cheung’s opinion that it was important to note that the applicant claimed a “foreign body history” despite the fact that the foreign body no longer remained in the eye.

19.  In conclusion, I prefer the opinion of Dr Cheung to that of Dr Tsui. I accept Dr Cheung’s opinion that, on balance, it was most likely that the source of the P. aeruginosa was from the alleged foreign body and/or the water used to rinse his eye due to the irritation from the foreign body history in the applicant’s left eye, and therefore the visual deficits and impairment of the whole person were due to the alleged foreign body accident at work on 31 August 2019.

20.  For the sake of completeness, I also accept Dr Cheung's opinion that the characteristic of P. aeruginosa is that it is an opportunistic pathogen waiting to infect the human body, particularly the human eyes if he or she wears contact lenses. It would not cause infection in a normal situation (an intact body) if there were no deficiencies, such as a loosened cornea or an abrasion of the eyes.

21.  I also agree with Dr Cheung’s evidence that, according to the Discharge Summary regarding the applicant’s admission on 2 September 2019, the possibility of infection being caused by contact lenses was ruled out as the applicant did not wear any contact lenses, and the remaining logical conclusion was that the infection was caused by trauma. Additionally, I accept Dr Cheung’s evidence that it is not uncommon for a patient with this type of infection to seek medical attention 1 to 2 days after the onset of symptoms.

B. The factual witnesses’ evidence

22.  The applicant testified and gave a full account of the Accident in court, which I have summarized in the first section of this Judgment. He was unshaken under cross-examination and struck me as a truthful witness. Although there may be some discrepancies, as Mr Kwan (counsel for the 2^nd respondent) suggested, I find that these are only minor discrepancies which would not affect my findings in accepting the applicant’s evidence.

23.  In one episode, the applicant demonstrated in court how he held the electric grinder against the wall to cut the anchor bolt or screw. During the demonstration, he turned his head to the right, exposing the side of his left eye to the grinder’s direction. At one point, the court considered whether the applicant had adjusted his body position in accordance with the expert’s evidence he had heard in court. However, Ms Sze helpfully clarified that the applicant had already demonstrated to the Labour Department the same working posture when operating the electric grinder during the site visit in October 2019. This was supported by a photograph taken by the Labour Department which had previously been included in the trial bundles.

24.  The applicant’s evidence, which I accept, was that protective goggles were not provided at the Site, which was consistent with the finding of the Magistrates’ Court. I also accept that the applicant used the electric grinder provided by the 1^st respondent for reasons which I will discuss in the employment section below.

25.  Having considered the applicant’s evidence (including the documents provided) and having regard to the opinion of Dr Cheung, I find that it is highly likely that the metal fragments propelled from the electric grinder, flew through the gap between the reading glasses and the eyes, and caused a cut on the surface of the cornea of the applicant’s left eye. This cut or abrasion then provided an opportunity for a P. aeruginosa infection, either from the metal fragment itself or from the tap water the applicant used to rinse his eye.

26.  I also accept the applicant’s evidence that he was alone on the site at the time of the Accident and his explanation that all the other workers had gone to another site at the airport for some other demolition work. He said that he was asked to go with them but was later instructed to finish up the work at the Site. Ms So of the 1^st respondent disagreed with this. She said that she was present in that late afternoon and that the applicant lied about not having an eyewitness. She said that the applicant was trying to cheat employees’ compensation and that he should at least have taken some photographs at the scene to support his claim.

27.  I do not understand Ms So’s argument. In my view, the applicant’s inability to produce a photograph at the scene of the Accident indicates that the accident was not premeditated.

28.  As to the evidence of Ms So, I agree with Ms Sze that she was not a credible witness. I accept Ms Sze’s submissions that Ms So changed her evidence from time to time, for example on the issue of whether there was a grinder provided at the scene and where she placed those safety helmets and goggles (if any). There were even more examples when she gave evidence on the issue of employment and what she had discussed with the applicant when he was in the hospital. I will come back to this in the next section. In any event, I find that Ms So has fabricated evidence in court, and I reject her evidence in its entirety.

29.  In her closing submissions, Ms So suggested that the applicant may have been working for his former employer, Wing Cheong Lung, immediately after his last day of work and may have been injured in the 14 hours before he went to the hospital. I consider this to be mere speculation and unlikely. The 12- or 14-hour period covered only Saturday night and Sunday morning, it was difficult to do any casual demolition work. In any event, this court should refrain from hearing the 1^st respondent’s submissions on liability.

30.  Mr Andy Wong (“Mr Wong”) is a director and shareholder of the 2^nd respondent, an interior design and contracting company. The company’s issued share capital suggests a strong financial background.

31.  Mr Wong said that he was reputable and had done a lot of charity work. He has helped the industry with many contributions. I have no hesitation in accepting them.

32.  However, Mr Wong repeatedly said in court that the applicant was a liar. He said that the applicant’s eye was not injured. He said twice that he had “seen” the applicant doing other work for other mutual friends and mutual interior design contractors. He said the applicant was just trying to scare him to get compensation. But, in my view, the fact that Mr Wong is a reputable person does not necessarily mean that the applicant must be a bad person, as he described.

33.  When asked by this court whether he had any evidence to support such a serious allegation, Mr Wong corrected his evidence by saying that he only “heard” about it; he had not actually “seen” it himself.

34.  Mr Wong then drew the court’s attention to some of the work records submitted by the applicant in the trial bundles. In particular, he referred to the applicant’s Inland Revenue Department record (“IRD record”) and claimed that it clearly showed that the applicant had worked for other contractors. However, I believe that Mr Wong must have misunderstood the IRD record. It only showed that the applicant’s former employer, Wing Cheong Lung, had reported a wage payment of $47,750 to the applicant for the period between 1 April 2019 and 31 March 2020, which covered the entire 2019/2020 assessment year. As per the applicant’s disclosure, he only worked for Wing Cheong Lung from 16 May 2019 to 12 July 2019, before the Accident, and received a payment of $49,600.

35.  I reject Mr Wong’s suggestion that the applicant faked the accident under any circumstances. Given the timing, accuracy required to cause a wound in the eye, and the courage needed, I do not believe that such an accident could have been faked.

36.  Furthermore, the applicant’s injury has been examined by many medical doctors, and several operations have been performed on his eye. I refuse to accept Mr Wong’s bare assertion.

37.  I also reject Mr. Wong’s evidence that the use of a grinder was very rare. He later clarified that the grinder was the same as a sander often used to polish marble, with only a change of disc.

38.  With regard to the photographs submitted by the 2^nd respondent showing the empty kitchen after the demolition work, I do not accept that they were taken on 30 August 2019, ie one day before the demolition of 1/F was completed. I accept Ms Sze’s submission that the photo shows the air ducts removed from the window, which means that the photographs must have been taken after 31 August 2019, while the air ducts were only removed from 1 to 4 September 2019.

39.  Conversely, I find it unacceptable that the 2^nd respondent did not produce any photos to show where the metal brackets or metal frames were installed inside the kitchen. It is inexplicable that such an experienced interior design company (even with an appointed project manager, Mr Sean Lam, who was on site for 2 to 3 hours per day) did not take a full set of pictures before commencing work on the project at the Site. I draw an adverse inference against the 2^nd respondent that there were metal brackets on the kitchen wall and that the applicant was required to cut the anchor bolt or screw using a grinder.

The employment

A. The factual witnesses’ evidence

40.  The issue of whether the applicant was an employee or an independent sub-contractor was also disputed at trial.

41.  On 24 August 2019, the applicant received a telephone call from his friend Mr Yau, who used to work with the 1^st respondent, asking him whether he was free to take up demolition work in Causeway Bay. Mr Yau told the applicant that it would be $1,500 per day and he asked him to contact Ms So of the 1^st respondent. The applicant called Ms So and they exchanged details via WeChat. The applicant then went to the Site to start work the following day.

42.  I find that there is nothing unusual about this hiring of casual labour. Mr Yau knew how much would be paid per day, and the applicant was willing to take up the job. An oral agreement must have been reached between Ms So of the 1^st respondent and the applicant based on these terms.

43.  I do not accept Ms So’s contention that she only asked the applicant to come to the Site on the first day of work to give a quote for sub-contracting the demolition work. I do not believe that she said that the applicant quoted $25,000 and she accepted the quote. Her evidence was that she even had to lend the applicant the tools and equipment for the first day of work and that the applicant would bring his own tools and equipment for the remaining days. It would be strange if she had not informed the applicant in advance what tools and equipment would be needed.

44.  I find it illogical that while Ms So (of the 1^st respondent) could have hired the applicant for $10,500 ($1,500 x 7 days), she would choose to accept the applicant as a subcontractor for $25,000. The applicant is an experienced demolition worker, and the basic tools could easily have been provided by the 1^st respondent. There was no difference between the applicant working as a casual worker or sub-contractor. It does not appear that Ms So would have a clear legal mind at the time to insist on having a sub-contractor to avoid liability. Further, Ms So did not offer any explanation or provide any record of using other sub-contractors in the past. On the contrary, Ms So has reiterated before the court that the 1^st respondent was a small company, and that she and her husband, who are both being the directors and shareholders, together with a relative, three of them would take up all the manual work by themselves and would not hire any other casual workers unless it was really necessary. It is also her evidence that the applicant would be the sub-contractor for the 1/F, but the three of them (including Ms So) would be responsible for clearing the debris after the applicant has dismantled it. I do not find Ms So’s version convincing at all. I find that she has fabricated the $25,000 subcontracting fee in an attempt to justify the 1^st respondent’s partial payment of $10,000 of sick leave, which I will discuss in more detail here.

45.  With respect to the payment, the applicant stated that after working for four days, he requested payment on 28 August 2019, and received $5,000 on the 29th. He explained that the payment was not $6,000 because Ms. So’s husband did not have enough money when other workers needed to be paid as well. He said that he received the remaining $5,500 on 7 or 8 September while he was in hospital. The applicant said that the $10,000 he received on 15 September was the four-fifths sick leave payment he had requested. He said that he had reported the eye injury to Ms So’s husband by telephone on 1 September at around 8:00 am after came out of the AED.

46.  Ms So stated that she paid the applicant $5,000 as a deposit on the first day of work. She also paid another $5,000 as a second instalment on 7 September 2019 when she visited the applicant in the hospital. Then she made a third payment of $10,000 on 15 September, also at the hospital. The balance of $5,000 was paid on 17 September, which the applicant denied.

47.  I reject Ms So’s version as it makes no logical sense whatsoever. First, it is unlikely that the 1^st respondent would have given $5,000 deposit to the applicant on the first day of work. The applicant does not have a company. It would be tantamount to giving more than 3 days of wages to a casual worker who came in in person and met him for the first time.

48.  Second, the $5,000 (or $5,500 as the applicant testified) must have been the final payment of the applicant’s wages, totalling $10,500. The applicant had finished his 7 days of work and was in the hospital. There was no complaint or dispute about the applicant’s work. I do not accept Ms So’s excuse that the 1^st respondent had not yet received payment from the 2^nd respondent and, therefore, only paid $5,000 as the second instalment.

49.  Third and more importantly, Ms So brought a Receipt for the applicant to sign when she paid the $10,000 to the applicant in the hospital on 15 September 2019. The Receipt stated that “[The applicant] has temporarily received HK$10,000 from Ms So during [his] stay at United Christian Hospital from 2 September 2019 to 15 September 2019.” (English translation).

50.  I refuse to accept Ms So’s explanation that the $10,000 was not a sick leave payment, but merely a partial payment of the sub-contracting fees. There is no reason why the applicant should have received the so-called sub-contracting fee as a “temporary payment”. There is also no reason why a sub-contracting fee had to make reference to the period the applicant stayed in the hospital. Further, there is no justification for Ms So to have singled out this $10,000 for the applicant to sign to acknowledge receipt, but not the other $5,000 tranches. Nor has Ms So been able to explain why she needed to request a copy of the applicant’s HKID card on 14 September 2019, the day before she made the $10,000 payment, if not for the purpose of making a sick leave payment. On balance, I find that the $10,000 was a partial payment of the applicant’s sick leave payment, and I accept that the applicant had reported the injury to Ms So’s husband (of the 1^st respondent) on 1 September 2019.

51.  Lastly, I reject the final payment of $5,000 made on 17 September 2019. I find it was a false claim by Ms So.

52.  In the circumstances, I accept the applicant’s evidence and reject that of Ms So’s evidence.

B. The Magistrates’ Court findings

53.  Ms Sze submitted that the applicant would rely on two Magistrates’ Court convictions for the findings of the employment relationship between the 1^st respondent and the applicant.

54.  The applicant invoked s 62 of the Evidence Ordinance on the first day of trial, with leave granted to amend the Application. The Amended Application and the Amended Answer were filed by the applicant and the 2^nd respondent on 27 February 2019 and 29 February 2019, respectively.

55.  The two criminal convictions are:

(1) The 1^st and 2^nd respondents were convicted after trial for failing to provide suitable goggles and safety helmets for the workman under s 43(a) and s 48(1)(a) of the Construction Sites (Safety) Regulations (“CSSR”), Cap 59I, on 3 December 2020 (“December 2020 Convictions”); and

(2) The 1^st respondent was convicted after trial for failing to take out insurance policy for employees under s 40(1) of the ECO on 30 November 2022 (“November 2022 Conviction”).

56.  Both counsel agree that the respondents’ prior convictions are only prima facie evidence, not conclusive evidence, and they are permitted by statute to prove to the contrary (Si Wing On Andrew v Cheng Sau Wai [2023] 2 HKLRD 187).

57.  In both December 2020 Convictions and November 2022 Conviction, the Magistrates’ Court made a finding that the applicant was an employee of the 1^st respondent.

58.  Mr Kwan submits that it would be unsafe for the court to adopt the finding of employment in the December 2020 Convictions because employment is not an element of the offence under the relevant provisions of the CSSR. I agree.

59.  However, as Mr Kwan accepted, employment is an element of the offence of failing to take out insurance policy for employees under s 40 of the ECO and, in November 2022 Conviction, the Magistrates’ Court found (as a prerequisite for conviction) that the applicant was an employee of the 1^st respondent at the material time. As I said in Si Wing On Andrew, it would be “an uphill task” for the 2^nd respondent to prove the contrary, particularly where the 2^nd respondent was not a party to the criminal proceedings of November 2022 Conviction and was not a party to the employment agreement between the 1^st respondent and the applicant.

60.  Mr Kwan contends that, although the 2^nd respondent was not a party of the criminal proceedings in which the 1^st respondent was convicted, the court should not regard such conviction to be probative of the employment relationship between the applicant and the 1^st respondent. He relies on two new pieces of evidence: (i) that the applicant was accustomed to working for multiple employers; and (ii) that the applicant was in fact an employee of Wing Cheong Lung at the same time of the Accident.

61.  With respect, I am unable to accept Mr Kwan’s submission in this regard. First, I do not see how the applicant had worked for several employers over a period of time would affect the court finding that he was an employee of the 1^st respondent. There is no evidence that the applicant had worked for several employers on the same day.

62.  Second, I consider that I have sufficiently dealt with the time period during which the applicant worked for Wing Cheong Lung in the previous section above, and I do not intend to repeat it here. I have already found that such an allegation is misconceived.

63.  In the circumstances, I find that the 2^nd respondent has failed to prove the contrary of the November 2022 Conviction. I will adopt the findings in November 2022 Conviction and give it considerable weight.

64.  For all the reasons above, I find that the 1^st respondent was the employer of the applicant at the time of the Accident, and is therefore liable for compensation under the ECO. As for the 2^nd respondent, there is no dispute that it was the principal contractor of the 1^st respondent for the demolition work. I hold that the 2^nd respondent is also liable for compensation under the ECO.

Quantum

The applicant’s earnings

65.  The respondents do not dispute the calculation of compensation to which the applicant is entitled. The only issue taken by the respondents was the applicant’s monthly earnings at the time of the accident.

66.  The applicant claims that his monthly earnings amounted to a daily wage of $1,500 x 20 or 21 working days, equal to $31,500 per month.

67.  The 2^nd respondent suggested, and adopted by the 1^st respondent, that the court should refer to the report published by the Government on the average daily wages of workers engaged in public section construction projects in April 2021 to determine the applicant’s monthly earnings. It was submitted that the wages should be $25,416 per month (ie $1,270 x 20 days = $25,416).

68.  Perhaps it would be convenient to examine the relevant sections in the ECO first. Sections 11(1), (2) and (5) provide:

“11. Method of calculating earnings

(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings—

(a) for the month immediately preceding the date of the accident; or

(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.

…

(2) Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.

…

(5) Where the earnings of an employee calculated under any of the provisions of this section amount to less than the amount specified in the second column of the Sixth Schedule shown opposite section 11(5) specified in the first column of that Schedule per month, the earnings of such employee shall, for the purposes of this Ordinance, be deemed to be the amount specified in the second column of the Sixth Schedule shown opposite section 11(5) specified in the first column of that Schedule per month.”

69.  As I stated above, the applicant was paid a daily wage of HK$1,500 by the 1^st respondent. The applicant had been employed by the 1^st respondent for only 7 days, and the Accident occurred on his last day of work. The applicant had not previously worked for the same employer (ie the 1^st respondent) before.

70.  Ms Sze submitted 2 case authorities for this court’s consideration: Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643 handed down by the Court of Appeal on 3 March 2008; and Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337 handed down also by the Court of Appeal on 13 June 2008. She submits that the court should adopt the second limb of s 11(2) to ascertain the applicant’s monthly earnings. She urges the court to adopt the Applicant’s average monthly income during the preceding 12 months as the comparable under s 11(2) does not have to be a third person (Lai Cheung Kwong, para 11).

71.  Mr Kwan also invited the court to adopt the second limb of s 11(2), but premised on a different footing. He submits that the average daily wages of workers engaged in public sector construction projects published by the Government should be adopted, which I believe he refers to “the same class of employment in the same district” as provided in the section.

72.  I shall first consider the two case authorities.

73.  In Lai Cheung Kwong, the applicant was a casual electrical worker employed by the respondent, earning a daily wage of $600. He was injured on the first day of work. The judge who heard the case considered that it was difficult to ascertain the applicant’s monthly earnings. He considered that there was insufficient evidence to assess the applicant’s monthly income and relied on s 11(5) to adopt HK$3,490 as provided under the Sixth Schedule as the applicant’s monthly earnings. The Court of Appeal (Cheung and Yeung JJA and Yam J) reversed the trial judge’s decision and held that s 11(5) was not applicable as it was only the minimum compensation payable to the applicant whenever the claimant’s earnings were below $3,490 a month, and it was not to be adopted when there was no evidence on the employee’s monthly earnings. However, the Honourable Judges of Appeal reached different conclusions as to the applicable sub-section under s 11 in ascertaining the applicant’s monthly earnings. In this regard, I shall refer to the next Court of Appeal judgment in Or Wing Ming, which was delivered shortly after the Lai Cheung Kwong case.

74.  In Or Wing Ming, it involved a woodworker who was injured when he had not worked for the employer for a full month, ie he was injured in 20 days. His daily wage was $700. The Court of Appeal (Yeung and Yuen JJA and Chung J) also reversed the trial judge’s decision and restated the inapplicability of s 11(5). As to the applicability of the sub-sections under s 11 to the method of calculating earnings, Yuen JA delivered her judgment as follows:

“23. The applicability and interpretation of sections 11(1), 11(2) and 11(5) were discussed by the Court of Appeal (Cheung and Yeung JJA and Yam J) in judgments delivered on 3 March 2008 in the case of Lai Cheung Kwong v Lo King Sum and Wing Shun Interior Decoration Co Ltd CACV 202/2007. The Court unanimously held that section 11(5) was not applicable in that case, but it appears that Cheung JA considered section 11(2) applicable, Yeung JA considered section 11(1)(a) applicable, whereas Yam J considered section 11(1)(b) applicable.

24. I respectfully agree with Cheung JA that section 11(1)(a) applies only to an applicant who has been employed by the same employer for at least one month before the date of accident. I agree with, and do not intend to repeat, Cheung JA’s analysis of section 11(1) as set out in paragraphs 6 to 15 of his judgment in Lai Cheung Kwong. In other words, where an applicant was employed by the same employer during the one month preceding the date of the accident, section 11(1)(a) applies.”

75.  Therefore, it is clear to me that, where, as in our present case, a casual worker has been working for his employer for the first time and got injured only after a few days of work, s 11(1)(a) does not apply. The first limb of s 11(1)(b) is not applicable either, as the employee had not been “so long employed” by the same employer during the previous 12 months. The remaining question would be whether the second limb of s 11(1)(b) or s 11(2) applies.

76.  In that regard, Yuen JA went on to consider in her judgment on the issue of whether the applicant’s monthly earnings, as evidenced by a few days of work, could be calculated by reference to the “lesser period” under s 11(1)(b). This was the issue which the Court of Appeal did not form any majority view in the case of Lai Cheung Kwong. Yuen JA held that, where an employee sustained injuries at work when he had not been employed by his existing employer for more than one month, s 11(1), including s 11(1)(b), would not apply. Yuen JA considered that s 11(2) was designed to overcome the very difficulty of this type of situation.

77.  However, Yuen JA’s judgment in this regard was disagreed with by Yeung JA and Chung J. The majority decisions given by the Court of Appeal were that:

(1) The purpose of enacting the Employees’ Compensation Ordinance was to ensure that an employee who had suffered injuries at work was given appropriate and reasonable pecuniary compensation. A more flexible approach should be adopted in interpreting the provisions of the Ordinance. An overly rigid approach would lead to limitation or restriction, rendering it difficult for the court to give effect to the legislation (per Yeung JA at paras 1 and 2).

(2) “Lesser period” under s 11(1)(b) could be construed as “less than one month”. It made no difference whether the injured employee earned his wages on a daily (or weekly) or monthly basis or on the basis of the amount of work. This, however, did not mean that any employee who was injured at work when he had been employed for less than one month would as a rule be able to rely on s 11(1)(b). Whether he could do so would depend on whether his remuneration during the "lesser period" was such as to render it "practicable" to calculate his "monthly remuneration". If the answer to this question was in the negative, his remuneration would have to be calculated in accordance with s 11(2) or even s 11(5) (per Yeung JA at paras 4 – 7; per Chung J at paras 38 – 47).

78.  Accordingly, I would respectfully adopt the approach taken by the majority of the Court of Appeal in Or Wing Ming. It is binding on to this court. I am unable to accept both counsel’s submissions that the court should apply s 11(2) directly without considering whether the evidence would be sufficient to establish the applicant’s monthly earnings under s 11(1)(b). When it is not impracticable to calculate the applicant’s monthly remuneration, s 11(2) should not be adopted in the first instance.

79.  In our present case, it is indisputable, as I have found, that the applicant earned a daily wage of $1,500 for 7 days. When he finished his work on the 7^th day (ie the last day of work), he was already entitled to $10,500. It is also the applicant’s evidence, which I accept, that he normally works 20 to 21 days in a month. There is no evidence to suggest otherwise, other than the IRD record discovered by the 2^nd respondent. It showed that there was no income reported by the applicant’s previous employers for the year of assessment from 2016 to 2019 and 2021. The only income reported was $47,760 for the period from 1 April 2019 to 31 March 2020. In my view, it is clear that it was not a complete record of the applicant’s income.

80.  Conversely, there was overwhelming evidence to support that the applicant earned $1,500 a day and could work for the same employer for 20 to 21 days a month. For instance, there is no dispute that the applicant was a skilled demolition worker. He received a telephone call from Mr Yau, referring him to work for the 1^st Respondent for $1,500 a day. It was agreed in a straightforward manner, and the only condition that was uncertain was whether meals would be provided, which Mr Yau asked the applicant to ask Ms So of the 1^st respondent by himself. Before the accident, Ms So was asking whether the applicant would be able to work for another demolition work at the airport. Further, the details of work done for various employers in the preceding 12 months prior to the date of the Accident set out by the applicant in his witness statement were comprehensive. Although the amount of $1,500 is not directly relevant as it was not under the same employer, it showed that the applicant had been working for various employers at the daily wage of $1,500 continuously within the one-year period preceding the date of the accident. Any suggestion that the applicant may have been “lacking in work” was refuted by the fact that the applicant had a full work schedule. I have no doubt that the table presented by the applicant was an accurate record of his earnings.

81.  Having considered the applicant’s evidence, I have absolutely no difficulty in finding that the applicant earned his wages on a daily basis of $1,500 and that he would have been able to work 20 to 21 days a month had he not been injured in this accident. It is not impracticable to calculate the applicant’s monthly remuneration. In the premises, s 11(2) does not apply.

82.  As to the number of working days, this court would give effect to the legislative intent of the ECO in adopting a more favourable calculation for the applicant. Therefore, in the choice between 20 or 21 working days, I would allow 21 days.

83.  For the foregoing reasons, I find that, applying the method of calculation under the second limb of s 11(1)(b), the applicant’s monthly earnings were $31,500, being a daily wage of $1,500 x 21 working days per month.

Loss of earning capacity

84.  The Applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board. According to the Certificate of Review of Assessment (Form 9) issued on 23 December 2021, the applicant was assessed to suffer from 17.5% of permanent loss of earning capacity caused by left eye injury resulting in left eye visual disturbance.

85.  It is well established that the Board’s assessments are final and conclusive unless appealed under s 18 of the ECO (see: Chan Kit v Sum Wo Industrial Manufactory [1989] 2 HKLR 230 per Hunter JA; Ng Ming Cheong v Mass Transit Railway Corporation [1997] HKLRD 1231 per Le Pichon J (as she then was)).

86.  In the absence of any appeal by the applicant, I accept the Board’s assessment as conclusive evidence of the applicant’s loss of earning capacity without further proof on its production in the court (s 16H, ECO).

Section 9 Compensation

87.  The applicant was at the age of 56 at the time of the accident.

88.  Section 7(1)(c) provides that where permanent total incapacity results from the injury, the amount of compensation shall be, in the case of an employee of or over 56 years of age at the time of the accident, a lump sum equal to 48 months’ earnings or 48 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(c) specified in the first column of that Schedule, whichever is the less.

89.  In the premises, the applicant’s section 9 compensation shall be:

$30,530 × 48 × 17.5% = $256,452

Section 10 Compensation

90.  The applicant claims compensation under section 10 for a lump sum payment for his temporary incapacity resulting from his left eye injury. The applicant is entitled to four-fifths of his loss of earnings during the period of temporary incapacity after the accident (s 10(1), ECO).

91.  There is no dispute that the applicant was allowed 552.5 days of sick leave from 1 September 2019 to 6 December 2021 as approved by the Board in the Certificate.

92.  Therefore, the Applicant’s section 10 compensation is:

$31,500 × 4/5 × 552.5/30 = $464,100

Section 10A Compensation

93.  The applicant claims a total sum of $10,785 as medical expenses incurred in respect of his left eye injury. The applicant has submitted medical receipts in support of his claim.

94.  I allow $10,875 in full.

Summary on quantum

95.  In summary, the applicant is entitled to compensation under the EOC as follows:

Section 9 compensation	$256,452
Section 10 compensation	$464,100
Section 10A compensation	$10,875
Total:	$731,427

96.  As the applicant received $10,000 from the 1^st respondent, the net compensation payable by the 1^st and 2^nd respondents should be $721,427.

Conclusion

97.  For the above reasons, I enter judgment on liability against the 2^nd respondent, notwithstanding that judgment in default on liability had been entered against the 1^st respondent by HHJ Harold Leong on 19 November 2021, leaving the compensation to be assessed. Having assessed the compensation, the net compensation payable by the 1^st and 2^nd respondents shall be $721,427.

98.  In the premises, I would enter judgment against the 1^st and 2^nd respondents in the sum of $721,427.

99.  The applicant is entitled to interest against the 1^st and 2^nd respondents at half of the judgment rate from the date of the accident to the date of judgment, thereafter at the judgment rate until full payment.

100.  I also make an order nisi that:

(1) The 2^nd respondent do pay the applicant’s costs of the action (including costs of liability and assessment of compensation) on a party and party basis, such costs to be taxed if not agreed, with certificate for counsel;

(2) The 1^st respondents do pay the applicant’s costs of the assessment of compensation on a party and party basis, such costs to be taxed if not agreed, with certificate for counsel; and

(3) The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

101.  It remains for me to thank both counsel for their able assistance.