WU NAI SANG v. FELLOWSHIP ENGINEERING LTD AND OTHERS

CACV 199/2016

[2018] HKCA 985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 199 OF 2016

(ON APPEAL FROM DCEC NO 243 OF 2011)

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REASONS FOR JUDGMENT

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Hon Kwan JA (giving the Reasons for Judgment of the Court):

1.  This is an appeal against quantum in employees’ compensation proceedings. We allowed the applicant’s appeal at the conclusion of the hearing and these are the reasons for our judgment.

2.  The applicant was an experienced steel binder and he sustained a fracture of the cervical spine with spinal cord injury.  He also suffered from urological, bowel and sexual dysfunction.  He was aged 60 at the time of the accident on 9 October 2010.

3.  After a four‑day trial, Deputy District Judge Mak found the 1^st respondent and the 4^th respondent jointly and severally liable to pay employees’ compensation to the applicant.  The 1^st respondent was liable as the employer and the 4^th respondent as the principal contractor.  No insurance was taken out for employees’ compensation.  Both respondents have gone into liquidation.  The liquidators of each have written to the court stating that they would take a neutral stance in this appeal.

4.  The judge held that the applicant is deemed to have suffered permanent total incapacity, as the aggregate percentage of the loss of earning capacity which resulted from the injury exceeds 100%.  His assessment under sections 7, 8, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 and the amounts which the applicant submitted should be substituted as the correct figures are as set out in the table below:

	Employees’ Compensation Ordinance	Judgment below ($)	Correct amount as submitted ($)
a.	Section 7	792,000	980,400
b.	Section 8	511,770	422,000
c.	Section 10	365,112	452,073
d.	Section 10A	20,000	20,000
	Sub-total:	1,688,882	1,874,473
	Less: advanced payment	129,000	129,000
	Compensation payable:	1,559,882	1,745,473

5.  The reason for the difference in assessment of compensation under sections 7 and 10 is due to the figure of $16,500 adopted by the judge being the average monthly earnings of the applicant.  This is wrong in law, as it is provided in section 11(1) that for the purpose of the 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,

whichever calculation is more favourable to the employee.”

6.  According to the records and work cards relating to the applicant adduced at the trial, for the month immediately preceding the date of the accident, the applicant’s earnings were $20,425.  Instead of the average monthly earnings of $16,500, the higher figure of $20,425 which is more favourable to the employee should have been adopted as the monthly earnings of the applicant for the purpose of calculating the compensation under sections 7 and 10.  The correct amounts of compensation under these provisions are as submitted by the applicant.

7.  The amount of compensation under section 8 being the cost of attention as assessed by the judge is erroneous.  He took the figure of $511,770 which is the statutory limit in the 6^th Schedule to the Ordinance at the time of the trial in July 2016.  The applicable statutory limit in the 6^th Schedule should be the figure at the time of the accident which was 9 October 2010.  The correct amount is $422,000 as submitted by the applicant.

8.  We therefore set aside the amount of compensation in the sum of $1,559,882 assessed by the judge and substitute this with a figure of $1,745,473, the breakdown of this latter figure is as set out in the table above.

9.  We have ordered the 1^st and 4^th respondents to pay the applicant’s costs of this appeal, which are to be assessed summarily.  As the applicant is legally aided, we have ordered his own costs to be taxed in accordance with the Legal Aid Regulations.