LEE KIN CHUEN v. 王偉

DCEC 970/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 970 OF 2014

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ASSESSMENT OF COMPENSATION

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1.  This is an assessment application of the applicant, Mr Lee Kin Chuen (“Mr Lee”), in an employees’ compensation claim against the respondent, 王偉, (“Mr Wong”). Interlocutory judgment on liability has already been obtained on 19 December 2014 with an order for an assessment of compensation. Mr Lee claims compensations against Mr Wong under sections 9, 10 and 10A of the Employees Compensation Ordinance (Cap 282) (“Ordinance”).

2.  On the day of the trial for assessment, Mr Wong was absent.  As he had all along been absent for all interlocutory hearings, Mr Cheng, counsel for Mr Lee, sought immediately to proceed with the assessment in Mr Wong’s absence.  I was satisfied from a perusal of the court file, that Mr Wong had been given notice of the hearing, and from the affidavit of service that the hearing bundles, the opening submissions, and a supplemental witness statement of Mr Lee had all been served on Mr Wong, and that the hearing could proceed in his absence without further deferment.  There was first a preliminary matter of an application on Mr Lee’s part for leave to file his supplemental witness statement regarding his income in a period of 12 months preceding the accident.  I noticed from the court file, that it had already been filed on 17 February 2014, and I granted formal leave to do so.

The accident

3.  Mr Lee was born on 8 March 1957.  According to the evidence before me, at around the time of the accident, he was an electrician with around 30 years of experience.  He has a cousin who is also an experienced electrician, Mr Chiu Mun Hung (“Mr Chiu”).  In early June 2012, upon Mr Chiu introducing him to Mr Wong for employment, he was assigned to carry out wiring works at 9/F, International Industrial Building, No 175 Hoi Bun Road, Kwun Tong (“Premises”).  Although Mr Lee suggests in his evidence that his daily wages were $950, it is not clear as to whether this rate was ever agreed to by Mr Wong.

4.  In the afternoon of 10 June 2012, Mr Lee and Mr Chiu were installing electrical wires in the Premises under Mr Wong’s supervision.  The work was carried out at a lights trough at a height of about 7 to 8 feet from the ground.  To carry out the installation, Mr Lee had to be positioned at a height on an A-ladder.  The work involved he and Mr Chiu being at the respective ends of the trough; Mr Chiu fed, and Mr Lee pulled electrical wires through a plastic pipe inside the trough, using a string tied to the ends of the wires.  Whilst Mr Lee was pulling the string, it suddenly broke, and Mr Lee fell from the ladder, landing on his back, and on the back of his skull, the occiput.  As a result, Mr Lee was sent to Union Christian Hospital.  His left wrist was found to be deformed with tenderness; he also suffered back pain with tenderness of his left pelvis, ie his left posterior iliac wing; it was also confirmed that he had a fracture at his left wrist, his distal radius.

The law

5.  A Certificate of Review of Assessment (Form 9) was issued on 15 August 2013, with loss of earning capacity being assessed at 6.5% by the Employees’ Compensation (Ordinary Assessment) Board.  His absence from work was certified as necessary for 9 periods between 10 June 2012 to 25 April 2013, totalling 306 days.  There has not been any section 18 appeal against the certificate.

6.  In the absence of any appeal, the content of the certificate is conclusive evidence of Mr Lee’s loss of earning capacity and the length of sick leave.  See section 16H of the Ordinance, and Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413, per Le Pichon J, at 419F-I.

7.  The approach in calculating an employee’s earnings under the Ordinance is set out in Section 11 of the Ordinance. I interpret that section in a manner as adopted by the Court of Appeal in Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643, and Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337.  From these 2 cases, the relevant law on monthly wages can be summarized as follows:-

(1) For the purposes of the Ordinance, the monthly earnings of an employee employed by his employer at the time of the accident shall be whichever is the higher of the following:-

(a) the earnings for the month immediately preceding the date of the accident, under section 11(1)(a); or

(b) the average monthly earnings for the preceding 12 months, under the first limb of section 11(1)(b); or

(c) the average monthly earnings for any preceding lesser period, where it is still practicable to compute an employee’s monthly earnings, under the second limb of section 11(1(b), as per Andrew Chung J and Yeung JA in Or Wing Ming, in paras 4 to 7, and 38 to 47;

(2) Where by reason of the shortness of duration of employment, its casual nature, or the terms of employment, it is impracticable to compute an employee’s monthly earnings with his employer, regard may be had to the average monthly amount which, during the preceding 12 months, was being earned by:-

(a) a person of similar earning capacity in the same grade, employed at the same work by the same employer, under the first limb of section 11(2); or

(b) if there is no such person, by a person of similar earning capacity in the same grade, employed in the same class of employment in the same district, under the second limb of section 11(2).

The applicant’s income

8.  In the case of Mr Lee, I find that it is not practicable to ascertain his monthly remuneration under Mr Wong’s employ, for he had been engaged only very shortly, and as I understand his evidence, although he expected his daily rate to be $950, it is not clear that Mr Wong had indeed made any express agreement with him as to his rate of remuneration.  There is also no evidence as to the remuneration of comparable employees under Mr Wong’s employ.  For this reason, I find the approach under the second limb of section 11(2) as the most appropriate one in ascertaining Mr Lee’s monthly earnings for the purposes of the Ordinance.

9.  Mr Lee’s evidence of his income in his supplemental witness statement is that for the 12 month period prior to the accident, he had been working either as an electrician or a carpenter, and had, on average, worked about 23 days per month, out of which, he had worked overtime on about 6 occasions.  It is Mr Lee’s evidence that as an electrician, he had earned between $860 to $920 per day, and as a carpenter, he had earned between $850 to $900 per day.  On this basis, his monthly earnings worked out to be around $22,500 per month.  In the light of such evidence, I accept Mr Lee’s submission to adopt $22,500 per month as a reasonable assessment for monthly earnings for the purposes of the Ordinance.

Compensation for temporary incapacity

10.  Section 10(1) of the Ordinance provides, inter alia, 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.  Section 10(2) provides in effect, that for the purposes of section 10, a period of absence from duty certified to be necessary by a registered medical practitioner, shall be deemed to be a period of total temporary incapacity.

12.  Taking $22,500 as Mr Lee’s monthly earnings at the time of the accident, and $0 being the deemed monthly earnings which he was capable of earning in a suitable employment during the period of the temporary incapacity (for he was not capable of work during that period), and 306 days as the applicable duration of his incapacity, his compensation for temporary incapacity is computed as follows:-

Section 10 compensation for temporary incapacity

= [$22,500 - $0] x 4/5 x [306/30]

=$183,600.

Payment of medical expenses

13.  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.  Section 10(A)(1A) provides that medical expenses which an employer is liable to pay shall, unless otherwise provided by agreement in writing, not include those in respect of medical treatment given outside Hong Kong.

14.  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.  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.

15.  Having gone through the evidence, I am satisfied that Mr Lee is entitled to $4,425 being medical expenses incurred in respect of medical treatment received other than as in-patient in a hospital.  In addition to attendance at a hospital, Mr Lee has also consulted 2 registered traditional Chinese medical practitioners for bone-setting.  As there were a total of 6 visits, Mr Lee’s claim for $1,200, being $200 per visit x 6 visits, is also allowed.

16.  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.  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 3, a registered medical practitioner means, inter alia, a medical practitioner who is registered under the Medical Registration Ordinance (Cap 161).

17.  Having scrutinized the evidence, I am satisfied that Mr Lee is entitled to claim the cost of medicine, which amounts to $80.

18.  As for Mr Lee’s medical expenses incurred in Mainland China, counsel for Mr Lee, rightly concedes that they are not claimable by reason of the provision in section 10A(1A). 

19.  Hence, Mr Lee’s total claim for medical expenses is computed as follows:-

Section 10A payment of medical expenses

= cost of attendance as an outpatient + cost of consultation with registered Chinese medicine practitioners + cost of medicine

= $4,425 + $1,200 + $80

= $5,705

Compensation for permanent partial incapacity

20.  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 injury of Mr Lee is not listed under the First Schedule, section 9(1)(b) applies to his case.  The compensation which would otherwise have been payable in the case of an employee’s permanent total incapacity depends on section 7 of the Ordinance.

21.  Section 7(1)(b) 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 over 40 years of age but under 56 at the time of the accident, a lump sum equal to 72 months’ earnings, or 72 times the relevant amount specified in the Sixth Schedule of the Ordinance, whichever is less.  As Mr Lee was just under 56 years old at the time of the accident, section 7(1)(b) is relevant in calculating his permanent partial incapacity.  Further, as the relevant specified amount under the Sixth Schedule at the time of his accident was $23,580, and as his monthly earnings was $22,500, the latter figure is applicable in his case.

22.  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)(b) multiplier x section 9(1)(b) percentage

 = $22,500 x 72 x 6.5%

 = $105,300

Total assessed amount

23.  The total assessed amount to which Mr Lee is entitled is as follows:-

Total quantum of assessment of compensation

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

= $183,600 + $5,705 + $105,300

= $294,605

24.  Since Mr Lee has so far not received any payment from Mr Wong, I am satisfied that he is entitled to a total assessed amount of $294,605, and that if he is still unable to recover, he can, if so advised, apply for assistance from the Employees Compensation Assistance Fund pursuant to section 17 of the Employees Compensation Assistance Ordinance (Cap 365).

Interest and costs

25.  I also award interest pursuant to Mr Lee’s request at half the judgment rate on the compensation awarded from the date of the accident to the date of the judgment.  As for costs, I make a costs order nisi that costs of the action shall be borne by Mr Wong, to be taxed if not agreed, with certificate for counsel.  Since Mr Lee is legally aided, his own costs shall be taxed according to Legal Aid Regulations.  Should there be no application to vary the costs order nisi within 14 days from the date of this judgment, it shall become absolute.