Man Sun Chuen v. Chan Siu-kin t/a Kin Fai Construction Co.

DCEC540/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 540 OF 2001

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R U L I N G

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1. This is an application for periodical payments up to the second anniversary of the date of the accident and for an extension under section 10(5) of the Employees' Compensation Ordinance ("the Ordinance") for a period of a further year, which is the maximum allowed under the Ordinance.

2. The background to the matter is this:

The applicant was employed as a mason by the 1st Respondent, the 2nd Respondent being the principal contractor at the site where he was working close to the Conrad Hotel in Central. In the course of his employment, he fell from a platform which was at a height of about 5 feet 6 inches off the ground. He sustained an extremely heavy fall, as a result of which he broke his jaw and suffered a stroke which has left him partly paralysed and confined to a wheelchair. Given the nature of his disability, it is not surprising to read from the medical report that he is also clinically depressed.

3. The respondents have been paying the applicant at the rate of $18,000 a month by way of periodical payments based on a calculation of $900 a day for 25 working days. That produces a sum of $18,000 a month, being four-fifths of the total amount. The last payment was made on 30 July, that being for the period 28 March to 14 April of this year, and as I say, the applicant now seeks to make up what they have since failed to pay to take him up to the second anniversary of the accident and thereafter for the statutory extension under section 10(5).

4. There are medical chits which certify the applicant as unfit to work up to 27 February next year, but Mr Tse who appears for him, submits that given the nature of his incapacity, it is almost inevitable that he will be unfit to work for the whole of the third year and he invites me to make an order which would take the applicant up to the third year, but subject to his producing medical certificates.

5. I think the better course to take if I were to make an order, would be to take the applicant up to 27 February, for which he has produced medical certificates, and to express the order as being up to that period or further order, leaving it to the parties to agree further payments provided, of course, there are medical certificates certifying unfitness to work, or leaving it to the applicant to come back to court for a further order.

6. The only dispute here, and of course it is an important dispute, is not as to the principle of periodical payments but as to quantum. The respondents say there has been a downturn in the construction industry and Miss Lai, who appears for the them, has submitted that at the very least the correct quantum should be on the basis of what is now the current rate which is $800 a day. It has gone down, she says, from $900 a day and for 20 days a month and not 25 days a month, and she has put in evidence from persons who are employed in the applicant's capacity in support of her case.

7. Mr Tse, who appears for the applicant, says the respondents are now rather stuck at the rate which they have been paying and there is no reason why they should not continue to do that and he has also put in evidence which tends to suggest, that certainly his co-worker, is being paid at the rate of $900 a day for a period of 25 days.

8. Now, the answer to all of this is in fact provided by section 11 of the Ordinance. That is the section which deals with the calculation or the method of calculating an injured workman's earnings on such an application. Given its importance in terms of this particular summons, I should set out its material terms in full.

"1. Subject to this section for the purposes of this ordinance, the monthly earnings of an employee at the time of the accident shall be earnings

(a) for the month immediately preceding the date of the accident, or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer but if not then for a lesser period during which he has been employed by the same employer, whichever calculation is more favourable to the employee.

1.(A) Where an employee suffers temporary incapacity after an accident and such incapacity extends beyond 12 months after the date of the accident, the monthly earnings of an employee at the time of the accident shall in respect of temporary incapacity beyond the 12 month period after the date of the accident be computed for the purposes of sections 6, 7, 9 or 10 as being the earnings calculated

(a) where the employer employs in similar employment other persons of similar earning capacity to the employee as the earnings that if the accident had not occurred the employee would have received at the end of a 12 month period after the date of the accident in accordance with the average rate of increase in respect of the earnings of other persons of similar earnings capacity employed by the employer in similar employment

(b) where the employer does not employ in similar employment other persons of similar earning capacity to the employee as the monthly earnings of the employee computed under subsections 1) or 2) and adjusted in accordance with the rate of increase in the Consumer Price Index at the end of a 12 month period after the date of the accident.

1(B) Where an employee suffers temporary incapacity after an accident and such incapacity extends beyond 24 months or such further period as the court may have allowed under section 10(5), the monthly earnings of an employee at the time of the accident shall in respect of temporary incapacity beyond the 24 month period or beyond such further period after the date of the accident be computed for the purposes of section 6, 7, 9 or 10 as being the earnings calculated where the employer employs in similar employment other persons of similar earning capacity to the employee as the earnings that if the accident had not occurred the employee would have received at the end of a 24 month period after the date of the accident in accordance with the average rate of increase in respect of the earnings of other persons of similar earning capacity employed by the employee in that in similar employment. Where the employer does not employ in similar employment other persons of similar earning capacity to the employee as the monthly earnings of the employee computer under subsection 1) or 2) and adjusted in accordance with the rate of increase in the Consumer Price Index at the rate of a 24 month period after the date of the accident."

9. It seems to me that it is clear from a reading of S. 11 that the proper way of proceeding with this matter is that contended for by Mr Tse, and so I am of the view that the order for periodical payments should continue at the original striking rate of $18,000 a month, and that rate of periodical payments will be paid from the date when the respondents stopped making payments until the second anniversary and thereafter under section 10(5) up to 27 February next year or further order.

10. And I have already indicated what I have in mind is that if the applicant produces medical certificates certifying his unfitness to work up to the third anniversary, then the payments will be at that rate. It is quite clear from section 11 that the section operates in a way that is favourable to the employee, the workman, so that if the rates go up, then they will go up in accordance with the comparables, but the employer if bound to pay at the original rate. There may well be evidence here that the rates have gone down, but equally, in any event, the applicant has put in evidence to suggest that the rates in fact have not gone down, but under section 11 it seems to me that the applicant is entitled to be paid at the rate that has already been established, so that is my order.

11. Arrears to be paid in a lump sum within 14 days up to 30 November 2001 and thereafter at $18,000 per month as from 1 December 2001 until 27 February 2002 or further order, so that if he produces medical certificates, then I would hope that those would be accepted and he would be paid but if not, Mr Tse, you are entitled to come and ask for further orders.

(Submissions on costs)

12. Costs in the cause with Legal Aid taxation.