HA KA HEI v. DéCOR ONE DESIGN & ENGINEERING LTD

DCEC1456/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1456 OF 2008

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J U D G M E N T

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1.  This is an application for employee’s compensation in respect of an industrial accident on 13 August 2007.

2.  The Applicant was born on 22 April 1977 and was aged 30 at the time of the accident.

3.  On 13 August 2007, the Applicant was employed by the Respondent as a casual worker to work at an industrial building in Tsuen Wan.  At that time, the Applicant was carrying out demolition work together with two co-workers.  There were several I-beams located at the cockloft of the site, and the Applicant and his two co-workers were lifting one of the I- beams by using a chain hoist which was fixed to the ceiling of the site.  The Applicant was at the material time standing on a working platform of over 3 metres in height.  In the course of lifting the I-beam, the chain hoist fell off with the I-beam and hit the working platform, causing the Applicant to lose his balance and fell down onto the ground causing serious injury to his right eye and neck. 

4.  The Respondent has not appeared at any stage of the present proceedings.  Judgment on liability has been entered against it leaving quantum of the compensation to be assessed today. 

Injuries of the Applicant

5.  The Applicant fell from the working platform of over 3 metres in height and landed with his head.  The Applicant immediately felt severe pain over his head and had loss of vision of both eyes.  He was immediately admitted to Tsuen Wan Adventist Hospital for treatment and was diagnosed to have suffered from right traumatic optic neuropathy.  He was treated with mega-dose of steroid and was discharged on 17 August 2007. 

6.  The Applicant then attended follow-up treatment in the Hong Kong Sanatorium Hospital and the Tuen Mun Eye Clinic.  He is still required to attend regular treatment and check-up in the Tuen Mun Eye Clinic. 

7.  The Applicant has also been suffering from neck and lower back pain after the accident and the pain becomes more and more severe.  The Applicant has attended the Fanling Occupational Health Clinic since October 2007 and was diagnosed to have suffered from mild marginal osteophytosis in cervical spine C3/4. 

8.  Despite the medical treatment, the Applicant continues to suffer from the following disabilities:

(a)  partial loss of vision of right eye with defective colour vision; and

(b) neck and low back pain.

9.  There is no medical evidence to prove that the spine injury was caused by the accident itself.  Apparently, the Applicant is mainly relying on his eye injury to claim for a higher percentage of permanent loss of earning capacity.

Medical assessment made by the Employee’s Compensation (Ordinary Assessment) Board (“the Board”)

10.  The Applicant was assessed by the Board on 23 June 2009 and certified to have suffered “right eye injury resulting in right eye visual disability” with assessment of 30% permanent loss of earning capacity.  Sick leave period from 13 August 2007 to 19 November 2007 and 23 November 2007, a total of 100 days, was also certified by the Board.

11.  The Applicant has filed an appeal against the said assessment. 

12.  The Applicant has filed a medical report by Dr Tsui Chung-wan, an ophthalmic expert, to support the appeal. 

13.  In the report, Dr Tsui confirms the diagnosis of right eye traumatic neuropathy.  Ophthalmic examination by Dr Tsui on the Applicant showed presence of right eye afferent pupillary defect, visual impairment and visual field defect, and Dr Tsui is of the opinion that such symptoms and complaints are attributable to the accident.  The visual impairment is permanent and irreversible.  No further improvement or deterioration is expected in the future and there is no known effective treatment. 

14.  Dr Tsui is also of the opinion that as a result of the right eye visual impairment, the Applicant has also suffered from impaired binocular visual function including stereopsis, fine vision discrimination and depth perception.  He should not therefore be able to resume his pre-accident occupation, and should not work in a hazardous environment such as construction site or at height, or to operate dangerous machinery.  According to Dr Tsui, the Applicant can probably work as a security officer, car park attendant or a messenger.

15.  Dr Tsui assesses the Applicant to have suffered 30% permanent loss of earning capacity.

The monthly earnings of the Applicant at the time of the accident

16.  The Applicant has since about 2006 started to work for the Respondent on a casual basis and he used to be paid by the Respondent $500 per day.  For the particular project relating to the accident, the Applicant started to work at the site in issue on 8 August 2007 and the subject accident occurred on the fifth day of his work. 

17.  Occasionally, the Applicant would also work for other employers as casual workers.  Prior to the accident, the Applicant worked for 26 days a month on average. 

18.  In calculating the monthly earnings of the Applicant at the time of the accident, section 11(1) of the Employees’ Compensation Ordinance, Cap. 282 (“the ECO”) is not applicable because section 11(1) was not intended to apply where, at the time of the injury, an injured employee had not been employed by the relevant employer for more than one month (see: Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643 at paragraphs 6-9 and Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337 at paragraph 24, and Leung Wai Pong v Tang Hon Kong trading as Kin Wah Decoration Co., unreported DCEC237/2007, decision of HH Judge Lok on 19 November 2008, at paragraph 19).

19.  By reason of the casual nature of the Applicant’s employment at the time of the accident, the Applicant asks the court to assess his monthly earnings under section 11(2) of the ECO by reference to the earnings of a worker of similar earning capacity in the same grade, employed in the same class and in the same district of employment as that of the Applicant.  According to the authorities cited in the last paragraph, this should be the proper approach in the present case. 

20.  According to the statistics of the Census and Statistics Department, the average daily wage of “general workers and labourers” engaged in public sector construction projects as reported by main contractors in August 2007 is HK$566.80.

21.  The solicitor for the Applicant requests the court to adopt the monthly earnings of $13,000 to assess the employees’ compensation.  This is based on a daily wage of $500 and average working days of 26 days a month.  I agree to adopt such figure.

The Applicant’s permanent loss of earning capacity

22.  The Applicant is not satisfied with the percentage of permanent loss of earning capacity assessed by the Board. 

23.  The Applicant had ceased education in Form 2 and thereafter had worked as non-skilled workers such as hardware apprentice and kitchen worker.  He has no vocational or other training save and except he has gained skills and experience in doing renovation and refurbishment work with particular skills in ceiling works.

24.  However, the Applicant is now unable to return to his previous employment of casual worker, either working in renovation, refurbishment or construction site.  No doubt there will be serious risk of injury to the Applicant if he needs to work at height or use dangerous machine during his work. 

25.  The Applicant has been continuously seeking job soon after his sick leave has expired but he is unable to secure any gainful employment up to date.  His employment is limited by his low education level and his injury to the right eye.  By reason of such special circumstances, the Applicant is asking the court to assess employees’ compensation by applying section 9(1A) of the ECO and the well-known Paper Mills formula.

26.  The Applicant is unable to return to his previous employment as a casual worker and is unable to work in construction or renovation site.  His evidence in this regard is supported by the medical opinion of Dr Tsui.  The Applicant also cannot work as a security guard by reason of his background.  He also cannot work as a messenger as most of the employers would set a job requirement of at least Form 3 education level.  Due to the special circumstances of the Applicant, including his limited education, training and experience, it is expected that even if the Applicant is able to secure gainful employment, he will only be able to work as a non-skilled worker of sedentary nature such as cleaner, and he will be able to earn not more than $5,072 per month.  (see the average monthly salary of “Cleaner” in September 2007 according to the statistics of the Census and Statistics Department). 

27.  Partial loss of vision is particularly important for a construction or renovation site worker as he has to work in a hazardous environment.  Further, as the Applicant has blurred vision and is not able to judge distance correctly, it will be extremely dangerous for him to operate machine in such site.  Hence the Applicant is not able to resume his pre-accident job with a handsome income.  In such circumstances, the actual loss of earning suffered by the Applicant would be much greater under the special circumstances of the case.  I therefore agree to assess the employees’ compensation by applying section 9(1A) of the ECO and the Paper Millsformula. 

28.  By adopting the Paper Mills formula as perfected in Lui Kwong Yan, the compensation under section 9 of the ECO should therefore be: $13,000 x  96 months x ($13,000-$5,072) / $13,000 = $761,088. 

29.  The Applicant was granted sick leave of 100 days.  Compensation under section 10 can therefore be assessed as follows:

   $13,000 x 100/30 days x 4/5 = $34,666.67. 

30.  No claim for medical expenses is made under section 10A of the ECO.

31.  The quantum of the Applicant’s claim can therefore be summarised as follows:  

Section 9 claim	$761,088.00
Section 10 claim	34,666.67
Subtotal	795,754.67
Less: Advance payments	20,500.00
Total	$775,254.67

32.  The Applicant is also entitled to interest on such compensation at 4%, per annum, which is half the existing judgment rate, from the date of the accident until the date hereof and thereafter at judgment rate until payment.