TANG WING TUNG v. KAM KEE DECORATION ENGINEERING LTD

DCEC 632/2022

[2023] HKDC 1526

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 632 OF 2022

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ASSESSMENT OF COMPENSATION

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Introduction

1.  On 25 April 2022, the Applicant commenced the present proceedings against the Respondent seeking compensation in respect of an accident on 7 June 2021 (“Accident”) under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”).

2.  The Respondent has not participated in these proceedings. Interlocutory judgment on liability was entered with costs against it on 16 June 2023.

3.  Notice of the assessment hearing was duly given to the Respondent. According to the affidavits of service filed for the Applicant, the application, the court orders, the witness statements, the assessment bundle together with the skeleton submissions of the Applicant had been properly and timely served on the Respondent before the assessment hearing.

4.  The Respondent did not appear at the assessment hearing. Nor did it file any documents.

5.  At the assessment hearing, I was satisfied that the Respondent had been given sufficient notice of the assessment hearing and the Court should proceed with the hearing notwithstanding its absence.

6.  The Applicant testified in Court. He also arranged Mr. Yeung Hui Qiang (“Yeung”) to give evidence for him. Both of them adopted the contents of their respective witness statements as their evidence in chief.

The accident, injuries and treatments

7.  The Applicant was born on 7 March 1968. At the time of the Accident, he was employed by the Respondent as a general labourer.

8.  On 7 June 2021, the Applicant was instructed by the Respondent to cut metal angle bars with a disc sander at a site under renovation (“Site”). Whilst he was carrying out the task, the disc of the said disc sander cracked and cut his left thumb.

9.  The Applicant’s account of the Accident and his injuries was well-documented in the medical reports produced by Queen Elizabeth Hospital (“QEH”). He was sent to the Accident & Emergency Department of QEH immediately after the Accident. Medical examination revealed 2 cm deep cut wound over his left thumb flexor side with suspected tendon exposure and numbness over ulnar half of flexor side of his left thumb distal to the said cut wound.

10.  The Applicant was transferred to the Department of Orthopaedics and Traumatology of QEH (“O&T Department”) where wound exploration was conducted with the flexor tendon of his left thumb repaired under general anesthesia on 8 June 2021. He was discharged on 9 June 2021. Thereafter, he attended follow up treatments at the O&T Department. He also received physiotherapy and occupational therapy for rehabilitation.

11.  The Applicant was admitted under the care of the O&T Department from 30 June to 5 July 2021 for rupture of the repaired left thumb flexor tendon. He was readmitted to the QEH for further exploration from 15 to 19 July 2021. Repair of the left thumb flexor tendon was done again under general anesthesia on 17 July 2021.

12.  The Applicant was granted sick leave from 7 June 2021 to 23 December 2021, a total of 200 days.

13.  Subsequently, the Applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (the “Board”). The Certificate of Assessment was issued on 5 October 2022 (“Form 7”).

14.  The Applicant was assessed by the Board to have suffered from “left thumb laceration resulting in left thumb scar, pain, numbness and stiffness” as a result of the Accident. The period of absence from duty necessary as a result of the injury was found to be 200 days, from 7 June to 23 December 2021. The loss of earning capacity permanently caused by the injury was assessed to be 7%.

15.  The Applicant adopts the assessment of the Board for the purpose of assessing compensation. In the absence of an appeal, the Form 7 assessment should be final and binding on the parties: Ng Ming Cheong v Mass Transit Railway Corporation [1997] HKLRD 1231.

The Applicant’s Earnings

16.  It is the Applicant’s case that he started to work for the Respondent on 14 May 2021 with a daily wage of HK$900. During the period from 14 May 2021 to the date of Accident, he worked for a total of 19 days out of 25 days for the Respondent.

17.  In reliance on the Court of Appeal case of柯永明 訴 何炳池 [2008] 4 HKLRD 337, the Applicant seeks to base his claim on s. 11(1)(b) of the Ordinance for the purpose of determining his monthly earnings immediately before and at the time of the Accident for the present assessment.

18.  In that case, it was held that for an applicant who was employed for less than one month, the monthly earnings to be adopted for the purpose of assessing compensation under the Ordinance could be calculated according to s. 11(1)(b) by referring to the actual earnings received by the applicant during that short period, provided that it was practicable to calculate his monthly income according to the actual earnings.

19.  There was no written employment agreement signed between the parties and the Applicant’s wages were paid in cash. The Applicant has to refer to other corroborative documentary evidence in support of his case. I have the privilege of hearing and seeing the Applicant and Yeung giving evidence in Court, which is well supported by the documents before me. The Applicant and Yeung impress me as honest witnesses.

20.  The Applicant gives a detailed account of how he was employed by the Respondent. His case is corroborated by Yeung’s evidence. Their evidence is that Yeung had been employed by the Respondent as a general labourer to work at the Site at the daily rate of HK$900 in early May 2021. Shortly thereafter, Yeung quitted the job and referred the Applicant to work for the Respondent at the Site.

21.  Their assertions are evidenced by the WeChat messages exchanged between them on 12 May 2021 as well as the Applicant’s WeChat messages with a co-worker acting for the Respondent on 13 May 2021. In those messages, the job referral and the employment agreement between the Applicant and the Respondent at the daily wage of HK$900 was discussed and concluded. The Applicant also produces the WeChat messages exchanged between Yeung and him and his Form 2, which was submitted to the Labour Department on 21 June 2021, for proof of his employment with the Respondent and the occurrence of the Accident.

22.  The Applicant also refers to the statistics by the Census and Statistics Department of the Government, which illustrates that the average daily wage for general labourer at the time of the Accident was HK$1,018.6, to show that his pleaded wages are realistic without exaggeration.

23.  The Applicant further seeks support from his bank statements and the Tax Return filed with the Inland Revenue Department for proof of his earning capacity serving as a “labourer” in his last employment with another employer shortly before the Accident. Premised on those documents, he elaborates that he earned an average of approximately HK$35,410 per month, on average, 23.6 working days each month, at a daily wage of HK$1,500 during the period from June to December 2020.

24.  Looking at all the matters in the round, I am convinced that serving as a general labourer for a renovation project for the Respondent (with the various obligations and duties as described by the Applicant in paragraph 11 of his witness statement), the Applicant could have been worked for 24 days per month at a daily rate of HK$900 but for the Accident. Such contention sits well with the Applicant’s employment history as well as the norm of the renovation industry.

25.  In further consideration of the fact that the Applicant was aged 53 at the time of the Accident and his remuneration was on a daily basis, I am persuaded that he actually had incentive to work for 24 days per month in order to earn a good living.

26.  I should add that notwithstanding that the Respondent was notified of the Applicant’s claim for HK$21,600 as the Applicant’s monthly earnings for the purpose of assessment, it chose not to contest the Applicant’s case or to challenge the Applicant’s evidence.

27.  Nor has it submitted Form 2 to the Labour Department pursuant to s 15 of the Ordinance. The Applicant’s attempts to seek discovery of comparable workers’ earnings from the Respondent also met with no reply.

28.  Having considered all the evidence before me, I am persuaded that it is fair and practicable for this Court to adopt HK$21,600 as the Applicant’s monthly earnings at the time and before the Accident. The assessment of the Board as set out in the Form 7 should be adopted as the basis of the present compensation assessment.

Section 9 of the Ordinance

29.  The Applicant was 53 years old at the time of the Accident. I accept a multiplier of 72 months. Therefore, the compensation for the Applicant’s permanent partial incapacity pursuant to section 9 of the Ordinance is: -

HK$21,600 × 72 × 7% = HK$108,864

Section 10 of the Ordinance

30.  The total length of sick leave certified by the Board is 200 days. There is no contradicting evidence regarding the Applicant’s sick leave.

31.  The compensation under s 10 of the Ordinance should be computed as follows:

HK$21,600 × 200/30 × 4/5 = HK$115,200

Section 10A of the Ordinance

32.  The Applicant’s claim for medical expenses incurred as a result of the Accident pursuant to section 10A of the Ordinance is well-supported with documentary proof and should be allowed in full at HK$9,190.

33.  The Applicant has never received any advance payment from the Respondent as a result of the Accident.

Summary

34.  In summary, the total amount of compensation awarded is as follows:

Compensation under s 9	HK$108,864
Compensation under s 10	HK$115,200
Compensation under s 10A	HK$9,190
Total	HK$233,254

35.  The compensation to be awarded to the Applicant is assessed at HK$233,254. The Respondent shall pay such sum with interest thereon at half judgment rate from the date of the accident, i.e. 7 June 2021, to the date of judgement and thereafter at judgment rate until payment in full.

Costs

36.  Taking into account all the relevant circumstances of this case, I make an order nisi that the costs of these proceedings, including all costs reserved, to be paid by the Respondent to the Applicant, on a party and party basis, to be taxed if not agreed. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

37.  In the absence of application by Summons within 14 days to vary, the costs order nisi shall become absolute.

38.  I thank Mr. Po for his assistance.