SHEN HUAZHU v. ZHU ZE ZHONG t/a TAK BO CONSTRUCTION MATERIAL AND ANOTHER

DCEC 725/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 725 OF 2014

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JUDGMENT

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Introduction

1. The applicant was working at a renovation site at 3/F, Starlight House, Leighton Road, Causeway Bay, Hong Kong at the time of the accident.  Her eye was hit by an object when her co-worker was drilling off floor tiles, thereby sustaining serious injury to her left eye.  The 1^st respondent has also confirmed the accident on various occasions:-

(i) The 1^st respondent has submitted a Notice of Accident to the Labour Department dated 29 March 2013, which was 2 weeks after the accident on 15 March 2013, confirming the accident at work as well as the circumstances of the accident;

(ii) The 1^st respondent has submitted an Information Amendment Sheet in April 2013 giving details of the 2^nd respondent.  It again confirmed the circumstances of the applicant’s accident under Part D (1);

(iii) On 9 May 2013, the 1^st respondent submitted a further Information Amendment Sheet providing the contact numbers of the 2^nd respondent.  He also confirmed the date of the accident on 15 March 2013 and stated that no employees compensation insurance was taken out;

(iv) The 1^st respondent was prosecuted by the Labour Department for failing to take out employees’ compensation insurance in respect of the applicant’s accident.  The 1^st respondent had agreed to the Brief Facts of the prosecution case which included the circumstances of the accident.

2. Interlocutory judgment on liability was entered against the 1st respondent on 9th January 2015. 

3. The 2^nd respondent was under legal advice when the Answer was filed, which was accompanied by his statement of truth.  The 2^nd respondent admitted that he was the principal contractor of the renovation works and the 1^st respondent was his subcontractor.  He has also admitted that the applicant was employed by the 1^st respondent at the material time.  There is no rebuttal evidence against the applicant’s case and therefore liability has been established against the 2^nd respondent.

4. Notice under section 24(6) of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) has been given to the 2^ndrespondent before commencing this Application. 

5. I am satisfied that on the evidence liability against the 2^ndrespondent has been established and I enter judgment against the 2^nd respondent with costs.

Average pre-accident earnings of the applicant

6. The applicant used to work as a casual construction site worker prior to the accident.  She worked for different employers including the applicant and was able to work on average 24-26 days a month.  It is not disputed by the 1^st and 2^nd respondents, and in fact admitted by the 1^st respondent as submitted under the Notice of Accident and the Brief Facts that the applicant’s daily wages were HK$600.00. 

7. In the absence of any evidence from the 1^st and 2^nd respondents regarding the monthly earnings of their employees, the latter part of Section 11(2) of the ECO applies in the calculation of the pre-accident average monthly earnings of the applicant (see黎祥礦 訴 盧景森 (CACV 202/2007), 錢偉業 訴 可生設計工程有限公司 (DCEC 1146/2009) and Ngo Chun Fung v Cheung Yiu Chung trading as Gun Kee Scaffolding works and Another (DCEC 1069/2012).

8. The applicant used to earn no less than HK$600.00 x 24 days or HK$14,400.00 per month.  The court will adopt the said sum of HK$14,400.00 as her pre-accident earnings.

Section 9 compensation

9. The applicant was 34 years old at the time of the accident.  The applicant accepts the assessment of 47.5% as assessed by the Medical Assessment Board under the Certificate of Assessment. Pursuant to Section 7 of the ECO, her compensation under Section 9 amounts to HK$14,400.00 x 96 x 47.5% or HK$656,640.00.

Section 10 compensation

10. The applicant, notwithstanding the serious injuries to her eye, was only granted intermittent sick leave from 16 March 2013 to 21 November 2014 for a total of 219 days which was endorsed by the Medical Assessment Board.  Section 10 compensation amounts to HK$14,400.00 x 219 / 24 x 4/5 or HK$105,120.00.

Section 10A compensation

11. The applicant has incurred HK$4,310.00 as medical expenses.

Advanced payments

12. Notwithstanding that the 1^st respondent was absent throughout the proceedings, the applicant has volunteered and confirmed that she has received a total sum of HK$56,000.00 from the 1^st respondent after the accident.  During her evidence in chief, the applicant confirmed that 2 out of the 5 cheques given by the 1^st respondent were bounced.  Yet, the applicant also confirmed that the sum of HK$16,000.00 under the 2 bounced cheques were given back to her by the 1^st respondent in cash.  The applicant has further confirmed that after 19 September 2013, she was not granted further sick leave until 18^th October 2013 and thereafter intermittently.  Nevertheless, she volunteered that the 1^st respondent has continued to pay her HK$8,000.00 each for the following 2 months as she had been unable to resume work by that time notwithstanding that there was no sick leave granted to her.

13. Upon clarification, the applicant confirmed that the said amount of HK$16,000.00 was paid to her by the 1^st respondent without any reservation or condition that the same has to be deducted from the compensation payable.  The applicant has also given evidence that she has not worked for the 1^st respondent or any other employer during this period.  As such, the further sum of advanced payments where the applicant is required to give credit to in this matter would be the 9 days’ sick leave during 20 September 2013 to 15 November 2013 in the sum of HK$16,000.00 / 60 days x 9 days or HK$2,400.00.  The balance sum of HK$13,600.00 should be regarded as ex gratia payment made by the 1^st respondent to the applicant and the same is not required to be deducted from the compensation payable to the applicant.

14. The total amount of advanced payments to be deducted is HK$40,000.00 + HK$2,400.00 or HK$42,400.00.

Summary of the compensation payable

15. The following is a summary of the net compensation payable to the applicant:-

	HK$
Section 9	656,640.00
Section 10	105,120.00
Section 10A	4,310.00
	766,070.00
Less advanced payments received	(42,400.00)
Total	723,670.00

Interest

16. The applicant is entitled to interest on the compensation payable at half judgment rate at 4% p.a. from the date of the accident up to the date of judgment and thereafter at full judgment rate until date of payment.

Costs

17. The costs of the whole action be paid by the 1^st and 2^nd respondents to be taxed if not agreed, and the applicant’s own costs be taxed in accordance with Legal Aid Regulations.