YUNG WAI LOK v. WAH KOON DESIGN ENGINEERING LTD

DCEC 2499/2021

[2023] HKDC 674

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2499 OF 2021

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J U D G M E N T

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Introduction

1.  This is an assessment of compensation under the Employees’ Compensation Ordinance (Cap 282) (“ECO”) in respect of an accident which occurred to the applicant during the course of his employment with the respondent on 11 March 2020 at Ground Floor, Ka Hing Building, 41-47 Java Road, North Point, Hong Kong, where he fell from height from the top of a 6-feet ladder onto the ground, thereby sustaining a fracture of the right 9^th rib and a fracture of the right shoulder.

2.  By an application dated 29 November 2021, the applicant claims compensation under sections 9, 10 and 10A of the ECO, namely, for permanent partial incapacity, periodical payments and medical expenses respectively.

3.  The respondent has not entered appearance in these proceedings throughout.  On 3 February 2023, interlocutory judgment on liability was entered against the respondent in default of answer to the application, leaving compensation to be assessed.

4.  The applicant has filed an affirmation of service proving that the trial bundles and the applicant’s opening submissions were served on the respondent. I am satisfied that the respondent has had notice of this trial, and I proceeded with the trial in its absence pursuant to Order 35, rule 1(2) of the Rules of the District Court (Cap 336H).

5.  The applicant is the only witness testifying at the trial.  He adopts the contents of his witness statement dated 29 December 2022 as his evidence-in-chief.  His testimony is unchallenged, and would be addressed further below.

The applicant’s injury and medical treatment

6.  The applicant was aged 45 at the time of the accident.

7.  On the day of the accident, viz. 11 March 2020, the applicant was employed by the respondent as a renovation worker.  At around 9:00 am, while he was standing at the top of a 6-feet A-shaped wooden ladder to install the frame of a signboard above an entrance door, the wooden ladder suddenly shook, causing the applicant to lose his balance and fall onto the ground.  He felt pain in the right shoulder and right ribs.

8.  Shortly after the accident, the applicant was brought by his supervisor to a registered Chinese medicine practitioner for bone-setting treatment.  He consulted the same Chinese medicine practitioner on the following day, viz. 12 March 2020, but he reported that he still felt pain in the right shoulder and right ribs.

9.  On 13 March 2020, the applicant attended the Accident and Emergency Department of Ruttonjee and Tang Shiu Kin Hospitals (“RTSKH”) for treatment.  Physical examination showed a fracture of the right greater tuberosity of humerus and a fracture of the right 9^th rib.  He was given conservative treatment and discharged on the same day.

10.  Thereafter, the applicant was found to have post-traumatic frozen right shoulder.  He received follow up orthopaedic consultations as well as physiotherapy and occupational therapy treatment at RTSKH up to 30 June 2021.

11.  The applicant was granted continuous sick leave by RTSKH from 13 March 2020 to 30 June 2021, totalling 475 days.

12.  In the Form 7 dated 28 December 2021 (“Form 7”), the Employees’ Compensation (Ordinary Assessment) Board (“Board”) certified the applicant to have suffered right humerus and right rib injuries resulting in right shoulder greater tuberosity fracture, with loss of earning capacity permanently caused by the injury assessed at 2%.  The continuous sick leave between 13 March 2020 and 30 June 2021, totalling 475 days, was endorsed.

The applicant’s earnings

13.  The applicant claims that he had been employed by the respondent as a decoration worker for 10 years before the accident occurred.  According to his evidence, he earned a daily wage of $1,100, and his average monthly earnings during the 12 months before the accident amounted to $22,000.

14.  The applicant has not produced any documentary evidence in support of his claim that he earned a daily wage of $1,100 and an average monthly income of $22,000 during the 12 months before the accident.  According to the applicant, the respondent paid his daily wage in cash.  He spent his daily wage for activities of daily living and did not deposit the same into his bank account. Also, the respondent did not make any MPF contribution for him nor file any employer’s return of remuneration and pensions with the Inland Revenue Department in respect of his earnings during the 12 months before the accident.

15.  Ms Kwok for the applicant submits that, despite the absence of any contemporaneous documents, the court may consider the following evidence which supports the applicant’s claim of his earnings:-

(1)  According to the statistics published by the Census and Statistics Department on the average daily wages of workers engaged in public sector construction projects as reported by main contractors, as of March 2020, a painter and decorator earned an average daily wage of $1,244.10, which is commensurate with the applicant’s daily wage of $1,100 as claimed.

(2)  In April and May 2020, the applicant received a monthly sum of $17,600 in cash from the respondent as periodical payment under section 10 of the ECO. Such sum is equivalent to four-fifths of his monthly earnings at $22,000.  The applicant would give credit to such periodical payments as part of the advance payment received from the respondent, totalling $90,760.

16.  I am mindful that the applicant has not produced any written receipt or bank deposit slip in support of his claim that he received a monthly sum of $17,600 from the respondent as periodical payment in April and May 2020.  On the other hand, I note that the respondent has not filed any evidence to rebut the applicant’s claims in respect of his monthly earnings and the amount of periodical payments received.  On balance, in the absence of any contradictory evidence before the court, I consider that it is inherently probable for the applicant to have earned a daily wage of $1,100 as at the date of the accident as a decoration worker in the light of the government statistics, and for him to have worked for an average of 22 days per month, resulting in an average monthly income of $22,000.

17.  In the premises, I am prepared to accept the applicant’s claim on his monthly earnings and find that he earned an average monthly income of $22,000 at the time of the accident.

Section 9 compensation

18.  The applicant claims compensation under section 9 of the ECO for his permanent partial incapacity resulting from the right shoulder and right rib fractures sustained in the accident.

19.  The applicant relies on the Board’s assessment of loss of earning capacity at 2% in Form 7.  It is well established that the Board’s assessments are final and conclusive unless appealed under section 18 of the ECO: Chan Kit v Sum Wo Industrial Manufactory [1989] 2 HKLR 230 at 232B-F per Hunter JA; Ng Ming Cheong v Mass Transit Railway Corporation [1997] HKLRD 1231 at 1236G-1237B per Le Pichon J (as she then was).  In the absence of any appeal by the applicant, and pursuant to section 16H of the ECO, I accept the Board’s assessment in Form 7 as conclusive evidence of the applicant’s loss of earning capacity caused by his injuries without further proof.

20.  The calculation of compensation for permanent total incapacity is prescribed in section 7 of the ECO.  For the present purposes, the relevant provision is section 7(1)(b), which reads:-

“(1) Where permanent total incapacity results from the injury, the amount of compensation shall be –

…

(b) in the case of an employee of or over 40 years of age but under 56 years of age at the time of the accident, a lump sum equal to 72 months’ earnings or 72 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(b) specified in the first column of that Schedule, whichever is the less; …”

21.  The applicant’s monthly income of $22,000 is less than the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(b) specified in the first column of that Schedule, operative at the date of the accident (viz. $30,530): cf. Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd [1991] 2 HKLR 455 at 459C-D per Hunter JA.  I shall therefore adopt the sum of $22,000 for the calculation of section 9 compensation.

22.  In the premises, the applicant’s section 9 compensation shall be as follows:-

                   $22,000 x 72 x 2% = $31,680

Section 10 compensation

23.  The applicant claims compensation under section 10 of the ECO for periodical payments for his temporary incapacity resulting from his right shoulder and right rib injuries.

24.  The amount of compensation under section 10 shall be four-fifths of the applicant’s loss of earnings during the period of temporary incapacity after the accident: see ECO section 10(1).

25.  Section 10(2) of the ECO provides:-

“For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

26.  I shall adopt the sick leave of 475 days as endorsed by the Board in Form 7 as the period of total temporary incapacity in the present case.

27.  In the premises, the applicant’s section 10 compensation shall be as follows:-

                   $22,000 x 4/5 x 475/30 = $278,666.67

Section 10A compensation

28.  The applicant claims compensation under section 10A of the ECO for the medical expenses incurred in respect of his right shoulder and right rib injuries.

29.  Compensation shall be calculated in accordance with the Third Schedule to the ECO, providing that the total amount payable for each day of stay in the hospital or on which medical treatment is given shall be subject to a cap of $300 as applicable at the time of the accident: section 10A(3); §§1-2 of the Third Schedule.

30.  The applicant has produced medical receipts in support of his claim.  In the light of those receipts, I am satisfied that the applicant is entitled to compensation of $8,725 under section 10A as claimed.

Summary on quantum

31.  In the premises, the applicant is entitled to compensation under the ECO as follows:-

Section 9 compensation	$31,680.00
Section 10 compensation	$278,666.67
Section 10A compensation	$8,725.00
Total:	$319,071.67

Disposition

32.  As stated above, the applicant received a total sum of $90,760 from the respondent as advance payment, which shall be deducted from the total compensation.  Therefore, the net compensation payable by the respondent to the applicant shall be $228,311.67.

33.  In the premises, I would enter judgment against the respondent in the sum of $228,311.67.

34.  The applicant is entitled to interest at half of the judgment rate from the date of the accident to the date hereof, thereafter at the judgment rate until full payment.

35.  I also make an order nisi that the respondent is to pay the applicant’s costs of the assessment of compensation, to be taxed if not agreed.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.