WONG FONG YUK v. 黃興醒

DCEC 976/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 976 OF 2012

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JUDGMENT
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1.  This trial involves a dispute over liability and compensation under the Employees’ Compensation Ordinance (Cap 282) (“Ordinance”), between Wong Fong Yuk, the applicant, and黃興醒, the respondent. Although they are fellow clansmen, ever since the applicant’s accident on 23 August 2010, considerable animosity has ensued between them rather than clannish fellowship. In this dispute, the applicant herein seeks to claim compensations against the respondent under sections 9, 10 and 10A of the Ordinance.

The applicant’s case

2.  The applicant was born on 15 April 1976 in Mainland China and was aged 34 at around the time of the accident in August 2010.  According to him, he came to Hong Kong in around May 2002, and became a plasterer ever since around October 2002.  In around mid-August 2010, through the introduction of a fellow clansman, one 黃興壇 (“HT Wong”), he was introduced to the respondent, a clansman with whom he had not been previously acquainted.  He was to do plastering work for the respondent at a construction site (“Site”) known as Yau Cha Po, Tai Shu Ha Road East, Yuen Long [元朗大樹下東路油渣埔], on Lot No.6A.  It was agreed between them that he would be paid $750 per day and was expected to work 6 days a week between 9 am to 6 pm.  On the basis of a 26-day month, he was expecting monthly earnings of about $19,500, being $750 per day x 26 days.

3.  He started work at the Site on around 13 August 2010 or some 10 days before the accident happened.  His work involved the laying of bricks to build walls for a village house.  Because of the uneven soil, wooden planks had to be laid over it for passage and standing ground.  He worked on the Site with the respondent, basically as an assistant following the respondent’s directions.  In particular, the latter part of his work involved his shoveling wet concrete mixes from mix heaps into pits or boxed troughs.  There was also on the Site, a makeshift shed in which the requisite tools and building materials were stored, and to which, the respondent also held a key and lock.

4.  At around 5 pm on 23 August 2010, while working on the Site with the respondent, with no one else on site, he suddenly sprained his lower back, as he twisted his trunk to shovel a load of soft mixed concrete from a heap into a pit or trough.  The sprain was so severe that he could not even shout for help until some 10 seconds later.  Thereafter, the respondent came over and helped him to get into the shed to take some rest.  The respondent also helped the applicant by administering a peppermint ointment, Alcool de Menthe De Ricqles, [雙飛人藥水], which the respondent took from a shelf in the shed.  Afterwards, the applicant left the Site, intending to visit a Chinese bone-setter clinic in Shumshuipo; but upon arrival, the clinic was closed; so he went home, but had to endure excruciating pain.  Next day, he attended the Shumshuipo clinic of a registered Chinese medicine practitioner, 鄧永基, also formally known as Tang Wing Kei, Gavin.  Thereafter, he sought, but never got paid by the respondent for the work that he had rendered over a period of some 10 days, without any rest days being offered to him.  

The respondent's case

5.  The respondent has some common ground with the applicant.  For example, there is no denial that the applicant was recruited to work on the Site as a plasterer through HT Wong, the mutually known clansman, to do the type of work that the applicant described, and that the respondent had worked with the applicant on the Site with a shed on it, for the storage of tools and materials.  However, the respondent's evidence also contains a host of distracting allegations against the applicant which, even if true, are immaterial to the question of liability.  For example, he accused the applicant of being an associate with rascals, and had an unsavourly disrepute for indulgence in gossips, violence, and fights; more dishonourably, he occasionally feigned injuries to cheat compensations out of employers and welfare benefits out of the Government.  However, in 3 respects, the respondent’s case is material or pertinent to the hotly contested issue of liability.  Firstly, he testified that he was not the applicant’s employer, but had merely recruited the applicant for work on behalf of the real employer in the background, one黃利華 (“LW Wong”), who was prepared to offer a daily wage of $750 to the applicant to work on the Site as a plasterer.  Secondly, he denied in testimony that the applicant was injured at work on the Site as alleged, and that he first got wind of the applicant’s purported injury on 25 June 2010 or thereabout, which was about 3 months earlier than the applicant's version.  Thirdly, he denies ever holding any key and lock to the shed as alleged, the significance being that it is more consistent with his not being an employer.

6.  His testimony was delivered impassionately with considerable anger directed at the applicant.  He was also joined in his lengthy and tempestuous speeches – some of which delivered while the applicant was in the middle of his own examination in chief – by one of his devotees at the public gallery.  Basically the applicant was persistently bad mouthed by their soliloquies notwithstanding some metered chastisement from the bench for their unruly conduct in concert, which in my opinion would have amounted to contempt of court many times over.

Findings of fact

7.  What most impressed the bench from all the commotion played out was the applicant’s integrous and dignified response to the respondent’s disruptive and provocative character bashing of him.  My assessment of all the evidence is that the applicant’s version of the facts must be hugely preferred over the respondent's.  Not only has he impressed me as a perfectly honest witness capable of expressing credible particularity when asked, his case was entirely consistent with the documentary evidence of his injuries and treatment.  The respondent on the other hand, struck me as quite happily unwilling to elaborate the details as to the circumstances under which he purportedly worked with the applicant on the Site as his co-employee.  He did not submit any document to enable the court to generate any inference that LW Wong might well be the real employer after all.  There was not a shred of documentary evidence tendered by him to suggest that the applicant was paid by LW Wong for the 10 odd days in August 2010 over which the applicant had been engaged to work on the Site.  He did not capitalize on his brotherhood and call in aid his purported pal, Mr HT Wong, to corroborate his evidence.  I therefore do not make any finding of fact in the respondent's favour, and accept without reservation the applicant’s version of the facts as proven way beyond the required balance of probabilities.

The applicant's income

8.  It is not disputed by the respondent that the applicant’s agreed daily wage rate was $750 per day, even though he contended that he was merely recruiting the applicant for the true employer, LW Wong.  In the circumstances, I regard this case as being an appropriate one for computing the applicant’s monthly earnings under the approach set out in the second limb of section 11(1)(b) of the Ordinance.  It has been interpreted by the Court of Appeal, as per Andrew Chung J and Yeung JA in Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337, at paras 4 to 7, and 38 to 47, as also applicable to an employee remunerated at daily rates in short periods of employment of less than a month, so long as such an approach is practicable.  So using that limb’s practicable approach, the applicant’s monthly earnings for the purposes of the Ordinance is assessed at $19,500 (ie $750 per day x 26 days per month).  I am satisfied that the adoption of a 26-day month in the case of the applicant’s employment is not unfair to the respondent, given the fact that for the approximately 10 days he worked on the Site, he had not been granted any rest days.

Certificate of Assessment – Form 7

9.  By a Certificate of Assessment (Form 7) dated 31 October 2014, the applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board as having suffered a 2.5% loss of earning capacity permanently caused by the injury, and was certified as requiring a period of absence from duty for a total of 73 days, over a period of some 2 years and 7 months between 24 August 2010 and 21 Mar 2013.  Since no appeal has been lodged by the applicant or the respondent, the content of the certificate is conclusive evidence of Mr Lee’s loss of earning capacity and the length of sick leave, pursuant to section 16H of the Ordinance, and as interpreted in Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413, per Le Pichon J, at 419 F-I.

Compensation for temporary incapacity – section 10 of the Ordinance

10.  The most pertinent part of section 10(1) of the Ordinance provides that where temporary incapacity results from the injury of an employee, the compensation shall be the periodical payments hereinafter mentioned, or a lump sum calculated accordingly, having regard to the probable duration of the incapacity, and that such periodical payments shall be at the rate proportional to a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident, and the monthly earnings which he is earning or is capable of earning, in some suitable employment during the period of the temporary incapacity after the accident.

11.  Taking $19,500 as the applicant’s monthly earnings at the time of the accident, and 73 days as the applicable duration of his incapacity during which the applicant could be deemed not capable of earning any income, his compensation for temporary incapacity is computed as follows:-

Compensation for temporary incapacity under section 10

= [$19,500 - $0] x 4/5 x [73/30]

= $37,960

Payment of medical expenses – section 10A of the Ordinance

12.  Under section 2(1) of the Ordinance, medical expenses incurred in respect of an employee’s medical treatment given in Hong Kong, includes the fees of a registered medical practitioner and a registered Chinese medical practitioner.  The relevant part of section 10A(1) provides that if, in any employment, personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay the medical expenses for the medical treatment in respect of such injury. 

13.  The relevant part of section 10A(3) provides that medical expenses which the employer is liable to pay shall be payable in accordance with the Third Schedule of the Ordinance in respect of the period during which the employee receives medical treatment, until the attending registered medical practitioner or registered Chinese medical practitioner certifies that in his opinion, no further treatment is required.

14.  The relevant part of paragraph 2 of the Third Schedule provides that where an employee is given medical treatment other than as an in-patient in a hospital, the medical expenses payable by the employer are the total amount of the medical expenses incurred or the total amount at the rate of $200 for each day on which medical treatment is given, whichever is the less. Furthermore, the relevant part of section 10AB(2) provides that the medical expenses that an employer is liable to pay in respect of an employee’s personal injury includes the cost of medicines to the extent that the medicines are prescribed medicines for the direct treatment of the injury. 

15.  Section 10AB(3)(a) provides, inter alia, that for the proposes of section 10AB, a reference to prescribed medicine is a reference to medicines prescribed by a registered medical practitioner.  Under section 2(1), a registered medical practitioner means, inter alia, a medical practitioner who is registered under the Medical Registration Ordinance (Cap 161).

16.  Having scrutinized the documentary evidence, I am satisfied that the applicant is only entitled to $11,652 being medical expenses incurred in respect of  medical services and/or treatment received from a laboratory, Princess Margaret Hospital, a registered medical practitioner (Dr Cheung Wai Sing) and 5 Chinese medical practitioners.  The bulk of his expenses exceeded the $200 statutory limit imposed under paragraph 2 of the Third Schedule of the Ordinance.  Mr Mak for the applicant rightly conceded that the applicant could only claim at the rate of $200 per visit, or some lesser sum whenever the applicant actually incurred less than this statutory limit.  On this basis, it has been ascertained and verified that the applicant is only entitled to $11,652 rather than the $19,900 originally calculated on his behalf.

Compensation for permanent partial incapacity – section 9 of the Ordinance

17.  Section 9(1)(b) of the Ordinance effectively provides that where permanent partial incapacity results, the amount of compensation shall be, in the case of an injury not specified in the First Schedule of the Ordinance, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at the time.  Since the back injury of the applicant is not listed under the First Schedule, section 9(1)(b) applies to the applicant's case.  

18.  The compensation which would otherwise have been payable in the case of an employee’s permanent total incapacity is premised on section 7 of the Ordinance.  Section 7(1)(a) effectively provides that where permanent total incapacity results from the injury of an employee, the amount of compensation shall be, in the case where he is under 40 years of age, a lump sum equal to 96 months’ earnings, or 96 times the relevant amount specified in the Sixth Schedule of the Ordinance, whichever is less.  As the applicant was just 34 years old at the time of the accident, section 7(1)(a) is applicable in the calculation of his permanent partial incapacity.  Further, as the relevant specified amount under the Sixth Schedule at the time of his accident was $21,500, as per Legal Notice 93 of 2010, which took effect from 1 August 2010, and as his monthly earnings were deemed to be $19,500, the latter lesser figure is applicable in his case.

19.  Hence, by reason of the application of section 9(1)(b), his compensation for permanent partial incapacity is calculated as follows:-

Section 9 compensation for permanent partial incapacity

= Monthly earnings x section 7(1)(a) multiplier x section  9(1)(b) percentage

= $19,500 x 96 x 2.5%

= $46,800

Total assessed amount

20.  Hence, the total quantum of the assessed amount to which the applicant is entitled is as follows:-

Total quantum of compensation

= section 10 compensation for temporary incapacity + section 10A compensation for medical expenses + section 9 compensation for permanent partial incapacity

= $37,960 + $11,652 + $46,800

= $96,412

21.  Since the applicant has so far not received any payment from the respondent, I am satisfied that he is entitled to a total assessed amount of $96,412, and that if he is still unable to recover from the respondent, he is at liberty, if so advised, to apply for assistance from the Employees Compensation Assistance Fund pursuant to section 17 of the Employees Compensation Assistance Ordinance (Cap 365).

Interest and costs

22.  I also award interest at half the judgment rate on the compensation awarded from the date of the accident, 23 August 2010, to the date of the judgment.  As for costs, I make a costs order nisi that costs of the action shall be borne by the respondent, to be taxed if not agreed, with certificate for counsel.  Should there be no application to vary the costs order nisi within 14 days from the date of this judgment, it shall become absolute.