YUEN NUI TONG v. LEE KAM CHUEN AND ANOTHER

DCEC 1750/2017

[2021] HKDC 509

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1750 OF 2017

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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 1^st respondent on 13 July 2016 at Flat K, 6/F, Block 3, Yuet Wu Villa, 2 Wu Sau Street, Tuen Mun, New Territories, where a broken grinding knife flew into his left eye, causing him left eye blindness.  The 2^nd respondent was the main contractor of the site at the time of the accident.

2.  By an application dated 31 July 2017, 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.  On 12 October 2017, the applicant filed a notice of appeal under section 18 of the ECO against the assessment of the Employees’ Compensation (Ordinary Assessment) Board (“Board”) in the Certificate of Assessment (“Form 7”) dated 22 August 2017.  By the order of HH Judge Levy dated 16 October 2020, leave was granted to the applicant to withdraw his appeal under section 18 of the ECO, with costs of the withdrawal to be reserved to the trial judge.

4.  The 1^st respondent has not entered appearance in these proceedings throughout.  On 18 September 2019, interlocutory judgment on liability was entered against the 1^st respondent in default of filing his answer to the application, leaving compensation to be assessed.

5.  The 2^nd respondent was initially legally represented.  On 22 June 2018, interlocutory judgment on liability was entered against the 2^nd respondent by consent, leaving compensation to be assessed.  The 2^nd respondent filed a notice to act in person on 10 August 2018.  Since then, the 2^nd respondent, who is not legally represented, has not participated at all in these proceedings, including this trial.

6.  The applicant has filed an affirmation of service proving that the notice of trial, the trial bundle and the applicant’s opening submissions have been served on the 1^st and 2^nd respondents respectively. I am satisfied that both respondents have had notice of this trial, and I proceeded with the trial in their absence pursuant to RDC Order 35, rule 1(2).

Witness testimony and documentary evidence

7.  The applicant is the only witness testifying at the trial.  He adopts the contents of his witness statement dated 3 September 2020 and supplemental witness statement dated 28 October 2020 as his evidence-in-chief.  His testimony is unchallenged, and would be addressed further below.

8.  The medical reports of the government hospitals have been admitted as evidence without calling the makers thereof.

The applicant’s injury and medical treatment

9.  The applicant was born on 24 April 1965.  He was aged 51 at the time of the accident.

10.  On the day of the accident, viz. 13 July 2016, the applicant was employed by the 1^st respondent as an electrical worker.  At around 3:00 pm, while he was operating a hand-held electric metal grinder, the grinding knife was suddenly broken and flew into his left eye.

11.  Shortly after the accident, the applicant was sent by ambulance to the Accident and Emergency Department of Tuen Mun Hospital (“TMH”) for treatment.  Physical examination showed a laceration wound over the left upper eyelid, and irregular pupil with iris protruded from its border, associated with hyphema and decreased eyeball tension.  Computed tomography scan of his left eye revealed ruptured left eyeball with lens displacement.  He was transferred to the Department of Ophthalmology of TMH for further management.

12.  On the same day, the applicant received emergency repair of the left ruptured eyeball at TMH.  Intraoperatively, it was found that he suffered extensive scleral-corneal laceration in the left eye with corneal tissue loss and uveal prolapse.  He was hospitalised for 8 days, and was discharged from TMH on 21 July 2016.

13.  Thereafter, the applicant continued to attend follow-up consultations at the Department of Ophthalmology of TMH until 17 December 2016.  He was admitted to TMH between 6 and 7 September 2016 for left eye enucleation and implant, but the surgery was cancelled on 7 September 2016 and is still pending.

14.  The applicant was granted intermittent sick leave by TMH from 13 July 2016 to 16 January 2017, totalling 162 days.

15.  In the Form 7 dated 22 August 2017, the Board certified the applicant to have suffered left eye injury resulting in left eye blindness, with loss of earning capacity permanently caused by the injury assessed at 50%.  The intermittent sick leave between 13 July 2016 and 16 January 2017, totalling 162 days, was endorsed.

Section 9 compensation

16.  The applicant claims compensation under section 9 of the ECO for his permanent partial incapacity resulting from the left eye blindness sustained in the accident.

17.  As the applicant’s injury is specified in item 38 of the First Schedule to the ECO, viz. “loss of sight of one eye”, the amount of compensation under section 9 is prescribed in section 9(1)(a), being such percentage of the compensation which would have been payable in the case of permanent total incapacity as is specified in the First Schedule as being the percentage of the loss of earning capacity caused by that injury, namely, 50%.

18.  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; …”

19.  The only issue to be determined by the court is the applicant’s earnings at the time of the accident.

20.  According to the applicant’s testimony, he started working for the 1^st respondent in 2015, more than a year before the accident took place.  He was paid a daily wage of $650 in cash, plus a lunch allowance of $50 per working day, by the 1^st respondent.  He had to work 5 to 6 days per week, or 24 days per month on average.  On such basis, he says that he earned an average of $700 per working day, or $16,800 per month ($700 x 24 days), at the time of the accident.

21.  The applicant has not produced any contemporaneous documents in support of his claims as to his daily income and number of working days.  Nevertheless, I bear in mind that the respondents have not adduced any evidence to dispute the applicant’s case in respect of his earnings.  I also note that, according to the statistics published by the Census and Statistics Department, an electrician could earn an average daily wage of $1,079.40 as of July 2016, when the accident occurred.[1]

22.  In the premises, I am prepared to accept the applicant’s claim that he earned an average monthly income of $16,800 at the time of the accident.

23.  The applicant’s monthly income of $16,800 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. $26,070): cf. Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd [1991] 2 HKLR 455, 459C-D, per Hunter JA.  I shall therefore adopt the sum of $16,800 for the calculation of section 9 compensation.

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

     $16,800 x 72 x 50% = $604,800

Section 10 compensation

25.  The applicant claims compensation under section 10 of the ECO for periodical payments for his temporary incapacity resulting from his left eye injury.

26.  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 section 10(1).

27.  Section 10(2) of the ECO provides that:

“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.”

28.  It is well established that the Board’s assessments are final and conclusive unless appealed under section 18 of the ECO: see Chan Kit v Sum Wo Industrial Manufactory [1989] 2 HKLR 230, 232B-F, per Hunter JA; Ng Ming Cheong v Mass Transit Railway Corporation [1997] HKLRD 1231, 1236G-1237B, per Le Pichon J (as she then was).

29.  Since the applicant has withdrawn his appeal against the Form 7 assessment, the sick leave of 162 days endorsed therein shall be conclusive, and I shall adopt the same.

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

     $16,800 x 4/5 x 162/30 = $72,576

Section 10A compensation

31.  The applicant claims compensation under section 10A of the ECO for the medical expenses incurred in respect of his left eye injury.

32.  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 $200 as applicable at the time of the accident: section 10A(3); §§1-2 of the Third Schedule.

33.  The applicant has not produced any medical receipts in support of his claim.  Nevertheless, in the light of the treatment he received as recorded in the medical reports of TMH, I am satisfied that the applicant is entitled to compensation of $500 under section 10A as claimed.

Summary on quantum

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

Section 9 compensation	$604,800.00
Section 10 compensation	$72,576.00
Section 10A compensation	$500.00
Total:	$677,876.00

Disposition

35.  In view of my decision above, I would enter judgment against the 1^st and 2^nd respondents jointly and severally in the total sum of $677,876.

36.  The applicant is entitled to interest 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.

37.  I also make an order nisi that:

(1)  there be no order as to costs on the applicant’s application for withdrawal of his notice of appeal filed on 12 October 2017 under section 18 of the ECO;

(2)  save as aforesaid, the 1^st and 2^nd respondents are to pay, jointly and severally, the applicant’s costs of the assessment of compensation, with certificate for counsel, to be taxed if not agreed; and

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

The costs order nisi shall become absolute upon the expiry of 14 days after the date of this judgment if there is no application to vary the same within the 14-day period.

38.  I thank counsel for her assistance.