MA SIU FAI v. 高占遠 t/a 利來裝飾設計 AND OTHERS

DCEC 2521/2018

[2021] HKDC 682

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2521 OF 2018

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ASSESSMENT OF COMPENSATION

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1.  The applicant applies for an assessment of compensation of the Application under Employees’ Compensation Ordinance (Cap 282) (“ECO”) for an accident that occurred on 9 November 2016 in a factory building where the disc of his co-worker’s grinding machine suddenly broke and a fragment flew into the applicant’s left eye. As a result, the applicant suffered left eye injury.

2.  Judgment on liability with costs has been entered against the 1^st respondent, the employer of the applicant and the 2^nd respondent, the principal contractor with compensation to be assessed.

3.  An Order dated 3 April 2020 for the filing List of Earnings was made against the 1^st and 2^nd respondents.  Neither respondent made an appearance and they both defaulted filing.

4.  Leave was granted to the 3^rd respondent, the Employees’ Compensation Assistance Fund Board (“The Fund Board) to intervene and join in these proceedings to contest the issue of quantum.

I.   The Injury

5.  The applicant attended the Accident and Emergency Department of Queen Elizabeth Hospital (“QEH”) at 16:30 on 9 November 2016 (about 1.5 hours after the accident).  On medical examination, it was found that he had: (1) left eye pupil distorted, (2) deep left corneal laceration, (3) active bleeding from left eye and (4) “visual acuity see light only”.  The clinical diagnosis was “left eye deep wound laceration”.  He was admitted to the Eye Department[1].

6.  According to the Hong Kong Eye Hospital (“HKEH”), urgent computer topography of orbit was performed and showed left eye rupture globe with no evidence of intra-ocular or orbital foreign body.  Subsequent emergency operation was done on the same night (repair of full thickness corneal-scleral laceration from 5-9 o’clock and removal of corneal foreign body)[2].

7.  In subsequent follow-up, left eye visual acuity dropped to no light perception, globe was intact, wound well with no leakage.  B-scan of left eye showed vitreous haemorrhage and suspected total retinal detachment.

8.  In summary, the applicant sustained permanent left eye total loss of vision due to the injury on duty on 9 November 2016.  Upon further assessment, he had no light perception on his left eye, globe was repaired with total retinal detachment.  His loss of left eye vision is likely to be permanent, which equal to 100% disability of the injured eye.

9.  The applicant has been assessed by the Employees’ Compensation (Ordinary Assessment) Board (“ECB”).  He was assessed to have suffered “left eye injury resulting in left eye total visual loss”.  The loss of earning capacity permanently caused by the injury was assessed at 50%[3].

10.  The Fund Board does not dispute the applicant suffered left eye injury at work resulting in total loss of vision and the loss of earning capacity at 50%.

11.  The present Application are made under:-

(a)  Compensation for permanent partial incapacity under s 9 of ECO;

(b)  Compensation for periodical payments under s 10 of ECO; and

(c)  Reimbursement of medical expenses under s 10A of ECO.

II.   The Applicant’s earnings at the time of the accident

a)   The daily wages

12.  It is the applicant’s case that he was employed by the 1^st respondent as a renovation worker (裝修工人) (mainly responsible to do the work of a plasterer (泥水工) and painter (油漆)).  He was assigned by the 1^st respondent to work on a daily basis at a site in a unit of a factory building in San Po Kong, Kowloon.  He earned a daily wage of $1,100 per day.

13.  During one to two years prior to the accident, the applicant also worked for different employers as a plasterer (批盪) and painter (油漆), his daily wage was around $1,050 per day.

14.  The applicant commenced work with the 1^st respondent on 10 October 2016.  On the date of the accident, he was injured without finishing work for the day and only received half day’s salary.  Between 10 October 2016 and 9 November 2016, he worked for a total of 23.5 days and received salary in three payments, $6,600, $7,700 and $6,600, in cash for his wages for working 6 days, 7 days and 6 days respectively.  After the accident, he received a sum of $5,000 by bank transfer for his wages for the remaining 4.5 days.

b)   Number of working days per month

15.  The applicant sated in his witness statement that under the employment with the 1^st respondent, he was required to work around 25-26 days per month.  He received cash payments for his daily wages for the periods of 6 days, 7 days and 6 days before the accident happened.  

16.  The applicant also stated that during the one to two years prior to the accident, when he worked for different employers, he worked 6 days per week and on average 24-25 days per month.

III.   Method of calculating earnings under S.11 of ECO

17.  Section 11(1) of ECO reads:-

“Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the 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 any lesser period during which he has been employed by the same employer,

(c) whichever calculation is more favourable to the employee.”

18.  Section 11(2) of ECO states that:-

“Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

19.  In Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643, it was held that s 11 of ECO provided 3 approaches for calculating monthly earnings:-

(1)  S 11 (1) of ECO is applicable when an employee was employed by the same employer during 1 month and 12 months preceding the accident.

(2)  It was also held that there are 2 limbs under s 11 (2) of ECO, which are applicable when the employment was short and of a casual nature.

(3)  The first limb is applicable when there is evidence of the earnings of a person in the same grade employed by the same employer during 1 month and 12 months preceding the accident.

(4)  In the absence of the evidence required under the first limb, the second limb is applicable.  The employee can rely on the evidence of the earnings of a person of similar earning capacity in the same grade employed in the same class of employment.

20.  Mr Lai, counsel for the applicant, submits that in the present case:-

(1)  S 11 (1) of ECO is not the applicable section because the applicant was not employed by the 1^st respondent for 1 month and 12 months preceding the accident.  The applicant worked for the 1^st respondent for only 23.5 days before the accident happened.  The applicant had not yet finished working for the 1^st respondent for one whole month, although it was close to one month.

(2)  The applicant was employed by the 1^st respondent on casual basis at a daily rate.  The time of employment was short or of a casual nature.  S 11 (2) of ECO is applicable.

(3)  The first limb of s 11(2) of ECO is not applicable because no evidence was given by the 1^st respondent of the earnings of a person in the same grade employed by him at the same work for 1 month or 12 months preceding the accident.

(4)  Accordingly, the applicable method should be the second limb of s 11 (2) of ECO.  The employee can rely on the evidence of the earnings of a painter and decorator in the same trade with similar job nature and having similar skills.

21.  Mr Lai further submits that in Lau Yiu Yee v Tung Lee Engineering Co (A firm) [2003] 1 HKC 43, Judge CB Chan held that the word “month” in s 11 (1) (a) means “a calendar month”.  The applicant in that case suffered injuries in an accident happened on 28 June 1999.  The Judge did not adopt the earnings for the month of June 1999 because the accident occurred on the 28^th day, which was before the end of the month of June, and the salary was not for the whole calendar month of June, but only for the period from 1 June 1999 to 28 June 1999. (at p 45 H-I) The Judge adopted the salary for the calendar month of May 1999 (as set out by the respondent in a list of earnings) as the applicant’s monthly earnings.

22.  In the applicant’s case, he stated that he started working for the 1^st respondent on 10 October 2016 and the accident happened on 9 November 2016.  He had not completed the work for one calendar month.  For the month of October 2016, he did not work for the 1^st respondent for the full calendar month of October as he started working on the tenth day of the month.  For the month of November 2016, he also did not work for the full calendar month of November for he was injured on the ninth day of the month. Mr Lai submits that the method under s 11 (1) of ECO is therefore not applicable in the present case and the second limb of s 11 (2) of ECO, as in Lai Cheung Kwong v Lo King Sum (supra), should be adopted to determine the Applicant’s monthly earnings.[4] In which the court should have regard to:-

“the average monthly amount which was being earned by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district during the 12 months previous to the accident”.

23.  In short, upon detailed analysis of the evidence of the applicant’s previous employment, Mr Lai submits that the applicant’s average monthly earnings under the second limb of s 11 (2) as a renovation worker for the 12 months preceding the accident should be $23,200.

24.  Mr Lim, counsel for the Fund Board, is in agreement with Mr Lai that s 11 (1) is not applicable.  In aid of Mr Lai, Mr Lim submits that if s 11(1) (a) applies, the applicant’s monthly earnings shall be his earnings for the calendar month immediately preceding the date of the accident, i.e. October 2016.  In October 2016 the applicant only worked for 6 + 7 + 6 = 19 days.  His days of work in November 2016 were not within the preceding calendar month; thus it should not be taken into account.

25.  Mr Lim submits that calculation under section 11(1) (b) takes into account the applicant’s earnings in the previous 12 months or any lesser period.  He relied on the Court of Appeal case of Or Wing Ming v Ho Bing Chi[2008] 4 HKLRD 337 (English Translation [2008] 2 HKCLRT 20), whereby Yuen JA held that the term “any lesser period” cannot possibly refer to a period less than one month and s 11(2) was designed to overcome this difficulty.  Since one month means one calendar month, the Applicant cannot rely on s 11(1) (b) since he was employed for less than one calendar month. 

26.  Mr Lim submits that even if “any lesser period” can be less than a month, it must still fall within the previous 12 calendar months (not previous 365 days) before the accident, since “any lesser period” means a shorter period in relation to “the previous 12 months”.  In the present case, the lesser period would be the 19 days of work in October 2016 (31 October 2016 was a Monday and the Applicant’s evidence is that he cannot recall if he had worked on that day).

27.  Mr Lim further submits that although there should be flexibility in interpreting the Ordinance, the Court must not deviate from the legislative framework and on a proper reading of s 11, the legislature intended to use calendar months as a basis of calculation.  The Court should faithfully apply the laws made by the legislature even if the Court does not consider the result desirable[5].

28.  Mr Lim submits that the s 11 (2) approach should apply and on his analysis of the evidence of the applicant’s previous employment, his monthly earnings under this approach should be $21,000. 

IV.      The legal analysis

29.  The applicant started work on 10 October 2016 and the accident happened on 9 November 2016.  Taking into account 31 October 2016, the applicant suffered injury on the thirty-first day of work with the 1^st respondent.  He was injured at around 3 pm on the date of accident and he was only paid half day’s wage for that day.  He was paid in total 23.5 days wages for that period.  But for the accident, he would have worked a full day on the thirty-first day (9 November 2016) and he would have been entitled to a full day’s wage for that day.  He should therefore have received in total 24 days’ wages for the period of 31 days immediately preceding the accident. 

30.  I find that the undisputed evidence shows that but for the accident, the applicant would have worked 24 days for the period of 31 days period immediately before the accident.

31.  In Or Wing Ming v Ho Bing Chi (supra), where the applicant had only worked for 20 days with the respondent before the accident, Hon Chung J stated:-

“33.As the Appellant had been employed for less than one month when he sustained injuries at work, the outcome of the present appeal hinges on the applicability of section 11 of Cap 282.

34.It is not necessary for me to quote the text of sections 11(1), 11(2) and 11(5) of Cap 282 as they are set out in paragraphs 20 to 22 hereinabove.

35.The legislative intent of Cap 282 is declared in the Long Title of the Ordinance:

To provide for the payment of compensation to employees who are injured in the course of their employment.

This shows that Cap 282 aims to obviate the need for injured employees to institute a common law claim based on contract and/or tort, which may well involve time-consuming and costly legal proceedings, in order to successfully make a civil claim against their employers.

36.In my view, the above legislative intent has to be taken into account in ascertaining the true meaning of section 11 (in particular section 11(1) (a) and (b)). Furthermore, since 1980 the provisions of Cap 282 have applied to the vast majority of employees in Hong Kong regardless of their job nature and/or earnings (see section 2 of Cap 282).

37.In Hong Kong, the most common forms of payment of employees’ salaries are:

(a) salaries calculated on a monthly basis;

(b) salaries calculated on a weekly or daily basis;

(c) salaries calculated on the basis of the amount of work.

38.In my judgment, for the reasons to be set out below, section 11(1) (b) is plainly applicable to the applicant’s claim herein.

39.Whether section 11(1) (b) is applicable to the present appeal depends on whether the term “… for any lesser period …” in that section:

(1) refers to any lesser period other than the month immediately preceding the date of the accident as provided in section 11(1) (a) (in other words, any period which is more than one month but less than 12 months); or

(2) may also include a period which is even shorter than the one-month period under section 11(1) (a). (My emphasis)

40.In order to make the following discussion more lucid, I will first take an injured employee whose salary is calculated on a monthly basis as an example to illustrate why I conclude that paragraph 39(2) above should represent the correct interpretation of section 11(1) (b).

41.Generally speaking, for an employee who is paid a monthly salary, the salary should have been agreed in writing or orally between the employer and the employee from the moment the period of employment commences (or, in some cases, even before that period commences). In practice, therefore, from that moment onwards the situation should not arise in which:

“… [it is not possible to] give the rates per month at which [the employee] was being remunerated” (to quote from section 11(1) (b)) or

“… it is impracticable to compute the rate of remuneration of such employee at the date of the accident …” (to quote from section 11(2))

42.On theabove basis, neither:

(a) the legislative intent of Cap 282; nor

(b) the content and/or wording of the various provisions in section 11, whether individually or as a whole, substantiates the proposition that, for the purposes of Cap 282, section 11(1) (b) cannot (or should not) be relied on in calculating the “earnings” of an injured employee who has been employed for less than one month and whose salary is calculated on a monthly basis. And for such an employee, the “earnings” calculated in accordance with section 11(1) (b) are no different from the remuneration already agreed between the employer and the employee.

43.On the other hand, if the true meaning of the term … lesser period …in section 11(1) (b) is as described in paragraph 39(1) above, then the only reasonable inference would be that the phrase … it is impracticable to compute the rate of remuneration of such employee at the date of the accident …in section 11(2) is also applicable to the abovementioned injured employee whose salary is calculated on a monthly basis. This is tantamount to drawing an extremely unreasonable and unrealistic conclusion on the interpretation of section 11(2).

44.Given that section 11(1)(b) is applicable to the abovementioned injured employee whose salary is calculated on a monthly basis, it should equally be applicable to injured employees whose salaries are calculated on other bases, unless there are compelling reasons for concluding that Cap 282 intends to treat those employees differently.

45.I conclude that neither the legislative intent of Cap 282 nor the content of the provisions therein provides a basis for the differential treatment mentioned in the preceding paragraph.

46.In reaching the above conclusion in respect of section 11(1) (b), I am not suggesting that all injured employees who have been employed for less than one month will as a rule be able to rely on that section in calculating their “earnings” for the purposes of Cap 282. Whether those employees may rely on section 11(1) (b) must still depend on whether their remuneration during the pre-injury “lesser” period is such as to render it “practicable” to compute their “monthly remuneration”. (My emphasis)

47.If the evidence submitted by the employees does not enable this to be done, their “monthly remuneration” will have to be computed in accordance with section 11(2) (or even section 11(5)).

32.  Yeung JA was in agreement with Chung J’s approach on this issue:-

“Hon Yeung JA:

1. The purpose of enacting the Employees’ Compensation Ordinance, Cap. 282 of the Laws of Hong Kong, is to ensure that an employee who has suffered injuries at work is given appropriate and reasonable pecuniary compensation.

2. In my judgment, a more flexible approach should be adopted in interpreting the provisions of the Ordinance. An overly rigid approach would lead to limitation or restriction, rendering it difficult for the court to give effect to the legislation.

3. Section 11(1) of the Ordinance provides:

(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 the 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 any lesser period during which he has been employed by the same employer.

4. The term “lesser period” in section 11(1) (b) refers to a period of less than 12 months, but whether it also refers to a period of less than one month is open to question since the provision itself is not clear about it.

5. Yuen JA points out that “lesser period” cannot possibly refer to a period of less than one month. Her analysis rests upon a sound logical basis.

6. In my view, however, that analysis, being overly rigid, would give rise to unnecessary limitation or restriction.

7. I have also considered Chung J’s analysis on the same issue. In my view, apart from being workable, Chung J’s approach accords more flexibility to the courts so that they can ensure that employees who have suffered injuries at work will, as far as possible, be given reasonable pecuniary compensation. The approach suggested by Chung J is in my view more appropriate and should be adopted. (My emphasis)

8. As a matter of fact, inLai Cheung Kwong v Lo King Sum and AnotherCACV 202/2007, the Court of Appeal was by a majority inclined to interpret the relevant provisions of the Ordinance in a more flexible manner.”

V.   The Proper Approach

33.  My reading of Or Wing Ming’s case is that the majority view of the Court of Appeal found the term“any lesser period” under s. 11(1) (b) to include a period of less than one month.  In other words, irrespective of the shortness of the period of employment, be it less than one month, subject to there being sufficient evidence to support a computation of monthly wage, s 11 (1) (b) may apply.  This majority view was regrettably not brought to my attention.

34.  In my judgment, the record of work days for a period of 30 days or more before the accident is sufficient evidence to support a computation of the monthly wage.  Evidence of the actual work days rightly reflects the days of work of the injured worker for the period immediately before the accident.  Under this approach, the notion of calendar month bears no significance.  I find Mr Lim’s approach on the interpretation of the term “for any lesser period” to be too narrow and would give rise to unnecessary restrains to the fair and appropriate method of calculation to casual daily workers.  This could not have been the intent of the majority court of Appeal in Or Wing Ming’s case.  I accordingly reject Mr Lim’s submission that the lesser period would be the 19 days of work in October 2016.

35.  In the present case, I find that there is cogent evidence for the computation of the applicant’s monthly earnings with the 1^st respondent.  In that, but for the accident on the thirty-first day of his work with the 1^st respondent, the applicant would have for certain completed his day of work and worked in total 24 days for the period of 31 days immediately preceding the accident.  When taking into account the fact that it is not disputed that the applicant earned a daily wage of $1,100, it is practical to calculate what he would have earned on a monthly basis by putting together his actual earnings for the past 30 or 31 days before the accident.

36.  Accordingly, I find that s 11 (1) (b) is applicable and it is appropriate to adopt the number of working days out of the period of 30 days prior to the accident and I adopt 23 days for the computation of the applicant’s monthly earnings.  The applicant’s monthly earnings is therefore assessed at $1,100 x 23 = $25,300.

A.   Section 9 of ECO: Compensation in case of permanent partial incapacity

37.  The applicant was born on 6 September 1969[6].  He was aged 47 at the time of the accident.  Being over 40 but under 56, 72 months is the appropriate multiplier for the s 9 award[7].

38.  The statutory maximum amount is $26,070 as per the second column of Sixth Schedule of ECO opposite s 7 (1) (b) in the first column.  (As at the date of accident on 9 November 2016, which was after L N 31 of 2015 and before L N 30 of 2017.)

39.  Since the applicant’s monthly earnings of $25,300 is lower than $26,070, the lesser sum of $25,300 is adopted for the purpose of s 7 of ECO.

40.  The applicant was assessed by the ECB to have Loss of Earning Capacity at 50%[8].

41.  The Loss of earning capacity (“LOE”) assessed by ECB is in line with the statutory provisions of ECO.  In the First Schedule of ECO, the statutory percentage of LOE for item no 38 of “Loss of sight of one eye” should be at 50%.

42.  Compensation under s.9 of ECO is assessed at:-

     $25,300 x 72 x 50% = $910,800

B.   Section 10 of ECO: Compensation in case of temporary incapacity (periodical payments)

43.  The applicant was provided with sick leaves certificates by public hospital intermittently starting from the date of accident on 9 November 2016 and ending on 24 September 2019[9].

44.  The ECB endorsed a total of 141.5 days for period of absence from duty necessary as a result of the injury[10].

From	To	No. of days
09/11/2016	31/12/2016	53
05/01/2017	29/03/2017	84
10/04/2017		0.5
24/04/2017	24/04/2017	1
13/06/2017	13/06/2017	1
03/10/2017	03/10/2017	1
30/01/2018	30/01/2018	1
	Total:	141.5

45.  This period of 141.5 days is deemed to be the applicant’s period of temporary incapacity.  This presumption is rebuttable.[11]

46.  The Fund Board does not seek to dispute the 141.5 days of sick leave for the purpose of calculating compensation under s 10.

47.  The compensation under s.10 of ECO is assessed at:-

  $25,300 x 4/5 x 141.5/30 = $95,465.33

C.   Section 10A of ECO: Payment of medical expenses

48.  The applicant produced some receipts[12] for his claim at the total sum of $2,115 as medical expenses for medical treatment provided by the hospitals and clinic in respect of his eye injury suffered in the accident.

49.  Under s.10(3) and Third Schedule of ECO, the medical expenses payable by the employer are the amount incurred or the amount at the rate of $200 for each day he received treatment, whichever is less. (Third Schedule of ECO) (previous version before L N 25 of 2018)

50.  The Statement of Accounts supplied by the Hospital Authority are as follows:-

(1)	QEH [13]	$200 + $100	$300
(2)	HKE [14]	$100 + ($60 + $20) + ($20 + $60) + ($30 + $60) + ($60 + $30) + ($60 + $20) + $60 + ($60 + $10) + ($60 + $10) + ($60 + $10) + ($80 + $15) + ($80 + $30) + ($80 + $30) + ($80 + $30)	$1,215
(3)	HKESL[15]	$600	$200
		Total:	$1,715

51.  For item (1), the medical expenses incurred per day did not exceed $200 per day.  For item (2), the medical expense incurred per day also did not exceed $200 per day (such as $60 + $20 in 1 day, or $30 + $60 in 1 day etc.).  For item (3) the medical expenses of $600 exceeded $200 per day and the rate up to $200 is applied.

52.  The Fund Board agrees to the sum $1,715 and I find that the total amount of medical expenses payable by the employer under s 10A of ECO should be in the total sum of $1,715.

VI.    Summary

53.  The total compensation is assessed at:-

   $910,800 + $95,465.33 + $1,715 = $1,007,980.33

54.  The applicant have not received any sick leave payments and reimbursement of medical expenses from either of the 1^st or 2^nd respondent(s).  There should be no deduction of any advance payment to arrive at a net amount.

55.  The applicant is awarded interest on the above sum at half of the judgment rate from the date of accident until the date of this judgment thereafter at judgment rate until payment.

VII.    Costs

56.  The court has jurisdiction to award costs against the Fund Board:-

“In exercising its discretion regarding a possible costs order against the Board, the principle that costs normally follow the event does not apply, given the Board’s statutory role. The starting-point should be that there is no order as to costs. However, the court has a wide discretion and may depart from this if the circumstances warrant a different order.^[16]

57.  The issue before this court boiled down to the legal argument of the application of the appropriate sub section of section 11. The Fund Board has reasonably agreed to a number of issues and contested the remaining live issue.  I make no order as to costs against the Fund Board.

Order

(1)  The applicant is awarded compensation at a total of $1,007,980.33 together withinterest against the 1^st and 2^nd respondents.

(2)  Cost order nisi that the costs of the action after the date of the interlocutory judgement be borne by the 1^st and 2^nd respondents to the applicant with certificate for counsel and there be no order as to costs between the applicant and 3^rd respondent, to be made absolute after 14 days from the date of this judgment. 

(3)  The applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.