LAU SIU YAN v. HUI CHI WAI t/a 威記工程公司

DCEC 1076/2019

[2021] HKDC 579

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1076 OF 2019

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ASSESSMENT OF COMPENSATION

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Introduction 

1.  In this Application, the applicant seeks employees’ compensation under sections 9, 10, 10A and 18 of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) in relation to an accident which took place in the course of his employment with the respondent on 6 December 2017.

2.  The respondent has not entered appearance in these proceedings.  On 25 September 2020, interlocutory judgment on liability was entered against the respondent in default of filing his answer to the Application, leaving compensation to be assessed.

3.  Further, as the respondent did not file and serve any list of earnings, list of documents and witness statement, by an order of HH Judge Levy dated 8 January 2021, the respondent was debarred from adducing such documents and evidence at the assessment of compensation.

4.  The respondent was absent at the assessment of compensation on 10 May 2021.  The applicant filed an affirmation of service proving that, amongst other things, the assessment bundle, the applicant’s opening submissions, list of authorities had been served on the respondent.  On 21 January 2021, the court also issued a notice of this assessment of compensation to the respondent.  I was satisfied that due notice had been given to the respondent that the assessment was fixed on 10 May 2021, and the hearing was proceeded with in his absence pursuant to RDC O 35 r1(2).

5.  In addition to his own witness statements, the applicant filed witness statements of four of his previous employers to give evidence in relation to his daily remuneration and the periods of employment during the previous engagements.  However, only one of the previous employers, Mr Tse Kai Tim (“Mr Tse”), attended the trial to give oral evidence.  Since the other three previous employers were absent and did not confirm their statements on oath, their evidence would not be taken into account in this assessment.

6.  Although the respondent did not enter appearance to cross-examine the applicant and Mr Tse, I was able to observe their demeanor when they answered the questions from the court.  In general, I found the applicant honest and credible, and his answers were corroborated by documentary evidence.  Similarly, I also observed Mr Tse to be honest and forthcoming, and his evidence was largely consistent with that of the applicant.  I accept their evidence in full.

The applicant’s case

7.  The applicant was born on 28 November 1962 and he started to work as a plasterer since 1982.  At the time of the accident, he was 55 years old, and he had had about 35 years of experience working as a plasterer.

8.  The applicant was employed by the respondent as a plasterer and commenced his work on 5 December 2017 at Room A1, 13/F, Galaxy Factory Building, No. 25-27 Luk Hop Street, San Po Kong, Kowloon, Hong Kong.  The project involved sub-dividing a factory unit into office spaces. Although the parties did not expressly fix a particular timeframe for this project, in light of its scale it was estimated that it would take about 3 months and the applicant would continue working on the project until it was complete.

9.  The applicant had known the respondent for many years and had previously worked for him.  According to the applicant, it was always their agreed arrangement that the applicant be paid by cash on a daily basis.

10.  On 6 December 2017, ie the second day of his employment with the respondent, he was instructed to perform his duties by standing on a wooden plank that was placed on top of two A-shaped wooden ladders.  The wooden plank was at least 6 feet above the ground and the respondent did not provide the applicant with any safety belt.  While he was working on the wooden plank, he lost his balance and fell onto the floor.  As a result, his right wrist was fractured, and he has been suffering from right wrist pain, stiffness and weakness.

11.  After the accident, on 12 December 2017, the respondent paid a sum of $10,000 into the applicant’s bank account. The applicant has not received any other sum from the respondent.

12.  The Employees’ Compensation (Ordinary Assessment) Board (the “EC Board”) issued a Certificate of Assessment (Form 7) on 26 June 2019 with the following assessments of the applicant:-

(1)   Injury: Right wrist injury resulting in right wrist pain, stiffness and weakness

(2)   Period of absence from duty necessary as a result of the injury: 6 December 2017 to 12 June 2019 (ie 554 days)

(3)   Loss of earning capacity permanently caused by the injury: 6%

13.  It is well-established that the EC Board’s assessments are final and conclusive unless appealed under section 18 of the ECO: Ng Ming Cheong v Mass Transit Railway Corporation [1997] HKLRD 1231, 1236-1237 per Le Pichon J (as she then was).  It was confirmed on behalf of the applicant that he did not intend to appeal against the EC Board’s assessments, and he was prepared to accept the same for the purpose of this assessment of compensation.

14.  The issue to be determined at this trial is the applicant’s monthly earnings as at the time of the accident.

The applicant’s monthly earnings

15.  Section 11 of the ECO provides the methods of calculating the relevant monthly earnings.  In this case, since the applicant had worked for the respondent for less than one month before the accident, the applicable provision is section 11(2).

16.  Section 11(2) states:-

“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.”

17.  The first limb of section 11(2) only allows reference to be made to the earnings of a person in the same grade employed by the same employer.  As there is no such evidence in this case, this limb does not apply: see 黎祥礦訴盧景森 [2008] 3 HKLRD 643 per Cheung JA at §10.

18.  The second limb of section 11(2), which allows reference to be made to the earnings of a person in the same class and district of employment, is apposite to the present case.  As the nature of the applicant’s prior work to the accident was the same as that at the time of the accident, the court is entitled to take into account his average monthly earnings over the period of 12 months before the accident (albeit with different employers) as the basis for calculating quantum and the difference in earnings across different districts is unlikely to be material: 黎祥礦 (supra) per Cheung JA at §11.

19.  According to the applicant, he was earning a daily wage of $1,500 as a plasterer in the period from 26 November 2016 to 4 December 2017, and he was paid by cash.  Such evidence was corroborated by the evidence of Mr Tse.

20.  In respect of his employment with the respondent which commenced on 5 December 2017, however, the applicant told the court that the respondent had agreed to pay him a daily wage of $1,600. The applicant explained that the increase of $100 from the previous rate of $1,500 was due to the pay increment for the construction industry that usually took place in November every year.  The applicant provided a table of daily salary produced by the Hong Kong Construction Industry Employees General Union, which showed that the daily salary of a plasterer as of November 2017 was $1,550.  The applicant further explained that the more experienced and skillful plasterers could often demand an additional sum of $50-100 per day, and since he had more than three decades of experience in the industry and he was very skillful, the respondent agreed to pay him $1,600.  I noticed that Mr Tse also gave similar evidence that the exact daily wage would vary according to a particular worker’s skills and experience, and he considered the applicant to be highly experienced, hardworking and skillful.  Based on all the evidence available before me, I accept that the applicant’s claimed daily wage of $1,600 to be reasonable.

21.  Another variable for computing the applicant’s monthly earnings is his average number of working days per month prior to the accident.  The applicant told the court that when he was working on industrial premises, he usually worked for 26 days per month, as he was sometimes required to work on public holidays.  On the other hand, if he was working on residential premises, he could only work for 22 to 23 days per month, as construction work was not allowed on residential premises on Sundays and public holidays.  He further told the court that about one-third of his jobs took place at industrial locations, with two-thirds at residential locations.

22.  Since the applicant did not have regular employers and the lengths of his employments varied, the applicant managed to have jobs lined up back-to-back with little or no break in between. When asked about how this was arranged, the applicant explained that he had been a plasterer for more than three decades and he had many business contacts in the industry who offered jobs to him.  Also, he was well-known for his skills and diligence and many employers were willing for wait for him to finish his job at hand before engaging him for a new project.  The applicant gave this evidence in a frank and forthright manner, and I accept his evidence as credible.

23.  Having considered the applicant’s evidence in relation to his work during the 12 months prior to the accident, I consider it reasonable to assess the applicant’s average number of working days to be 24 per month.  In the premises, I assess the applicant’s average monthly income to be $38,400 (being $1,600 x 24) prior to the accident.

Section 9 compensation

24.  The applicant claims compensation under section 9 of the ECO for his permanent partial incapacity resulting from his right wrist injury.

25.  Pursuant to section 7(1)(b), in the case of an employee of over 40 years of age but under 56 of age at the time of the accident, the amount of compensation shall be a lump sum equal to 72 months’ earnings or 72 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(b) specified in the first column of that Schedule, whichever is the less.

26.  The applicant’s average monthly income of $38,400 was higher than the specified limit ($28,360) in the Sixth Schedule as applicable at the time of the accident.  The specified limit of $28,360 is to be adopted.

27.  In the premises, the applicant’s section 9 compensation shall be:

     $28,360 x 72 x 6% = $122,515.2

Section 10 compensation

28.  The applicant claims compensation under section 10 of the ECO for periodical payments for his temporary incapacity resulting from his right wrist injury.

29.  The applicant’s section 10 compensation shall be:

     ($38,400 x 4/5 x 554/30) = $567,296

Section 10A compensation

30.  In the Application, the applicant also claims a total sum of $8,685 for payment of medical expenses under section 10A.

31.  Medical expenses which the employer is liable to pay under this section shall be payable in accordance with the Third Schedule, subject to a cap of $200 for each day of stay in a hospital or for medical treatment, as applicable at the time of the accident.

32.  The applicant has compiled a list of medical expenses together with copies of the receipts, and slightly revised the claimed amount to be $8,820.  I am satisfied that all the medical expenses claimed were paid to government hospitals in Hong Kong for the treatment and physiotherapy of his injured right wrist, and they did not exceed the daily limit of $200.  I allow the amount of $8,820 in full.

Summary

33.  In summary, I assess the compensation payable to the applicant under the ECO as follows:-

Section 9 compensation	$122,515.20
Section 10 compensation	$567,296.00
Section 10A compensation	$8,820.00
LESS: Partial payment made by the respondent	($10,000.00)
Total	$688,631.20

34.  I therefore hold that the respondent is liable to pay compensation to the applicant in the sum of $688,631.2 together with interest at half judgment rate from the date of the accident to the date of judgment and thereafter at judgment rate until payment in full.

35.  I also make a costs order nisi that the respondent shall pay the applicant’s costs of the action to be taxed if not agreed, and the applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

36.  The above costs order nisi shall become absolute upon the expiry of 14 days after the date of this judgment if there is no application to vary the same within the 14-day period.

37.  This Decision is handed down in English as submissions were made to me in English.  However, the respondent may liaise with the court clerk within 14 days upon receipt of this Decision to arrange for interpretation by a court translator at the District Court.  The court clerk shall notify the respondent of this liberty by a letter in Chinese.