NG TAT IAN NELSON v. T SQUARED PRODUCTIONS LTD

DCEC 1141/2017

[2019] HKDC 850

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1141 OF 2017

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JUDGMENT

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1.  This is the hearing for assessment of quantum of employees’ compensation.

2.  In terms of procedural history, by the order of Her Honour Judge Levy, dated 18 January 2019, judgment on liability was made against the respondent with quantum to be assessed, in default of the respondent.  At this hearing, the respondent also has not appeared.  I am satisfied that service of the order of 18 May 2019 scheduling for this hearing has been properly made.  I am satisfied that the court can proceed with hearing for assessment.  At this hearing, the applicant gave oral testimony in court, and has called no other witness. 

3.  In terms of the facts underlying this application, the applicant worked one day on 27 May 2015 for the respondent as a causal worker for the advertising metal frame installation in Happy Valley.  He had a long term work as a clerk, and only took leave to do extra casual work from time to time.  

4.  In the course of his work for the respondent on 27 May 2015, the metal structure accidentally fell down, and he suffered right ankle fracture as the metal frame crashed on him.  An operation had to be performed, and he was hospitalized for 7 days at Pamela Youde Nethersole Eastern Hospital.  He was recommended a total of 542 days of sick leave, but only the maximum of those within the two years is claimed (ie 505 days).  The applicant was at his age of 51 when he met the incident.

5.  In terms of the aftermath of the incident, the respondent did not dispute its being the employer of the applicant.  Among other things, it has paid a total of HK$42,000 as compensation in regards the sick leaves.  From 3 documentary receipts cheque copies and the supporting calculation, I notice that the respondent proceeded on the basis that the applicant had a monthly salary of HK$15,000 (ie HK$14,800 for 37 days of sick leave on 19 October 2015, HK$18,000 for 45 days of sick leaves on 13 November 2015, and HK$9,200 for 23 days of sick leaves on 18 June 2015.)

6.  The applicant claimed in this application that his daily wage is HK$850 and that he worked 26 days a month.  However, there was no concrete evidence at all as to this level of daily wage and that he worked at such rate for 26 days a month.  The applicant’s own evidence at court was that he did casual work for isolated days for 4 times or so a year.  His clerk work gave him HK$9,000 monthly salary and he worked extra work giving him a total of HK$15,000 income a month.  There is no bank statement produced whether showing that his work that day was at HK$850 nor to show his ongoing income at HK$15,000 a month.  

7.  However, as outlined in paragraph 5 above, the respondent proceeded on the basis that the applicant’s income was HK$15,000 a month.  And on this basis, payments were made to the applicant.  Given the concrete documentary evidence supporting the parties’ view of the monthly income, and given that there is nothing before me that indicated an even lower level of income, I am willing to adopt HK$15,000 as the monthly income. 

8.  I have scrutinized the sick leave period.  There is nothing to cause me to doubt the appropriateness of the sick leave period.  The Employees’ Compensation (Ordinary Assessment) Board has assessed the applicant’s loss of earning capacity at 5%.  Mr Chow withdrew the claim for medical expenses as they had been fully reimbursed by the respondent already. 

9.  I award the following:-

(1)  Pursuant to s 9 of the Employees’ Compensation Ordinance, HK$15,000 x 5% x 72 months = HK$54,000;

(2)  Pursuant to s 10, HK$15,000/30 days x 505 days sick leave x 4/5 = HK$202,000.  As HK$46,000 has been paid by the respondent, HK$156,000 is awarded.

10.  There be a total of HK$210,000 awarded.

11.  I also award to the applicant interest at half judgment rate from 27 May 2015, together with costs of this application.  Such costs to be summarily assessed as the applicant requested and which I find appropriate.  The applicant do submit statement of costs within the next 14 days.

12.  I thank Mr Chow for his assistance.