KHAN SUJAD v. HO HO KWONG t/a A STEP AHEAD CLEANING ENGINEERING CO

DCEC412/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 412 OF 2003

IN THE MATTER OF AN APPLICATION

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J U D G M E N T

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1. The applicant applies for compensation under sections 9, 10 and 10A of the Employees' Compensation Ordinance, Cap. 282, against the respondent.

2. The respondent is absent today. In fact, apart from sending a letter to the court in response to the application on 29 April 2003, the respondent had not responded to any appearances or any orders of the court. He had certainly not appeared at any pre-trial hearings in court.

3. In his letter of 29 April 2003, the respondent denied he had employed the applicant to work on 21 March 2002, the day of the accident. Since he did not appear in court at all, apart from the aforesaid letter - there were no other response; he filed no witness statements - the hearing was held in the respondent's absence.

4. I am satisfied the respondent was served all the documents and the notice of hearing.

5. In this application, the applicant gave evidence on his employment by the respondent to perform certain work on 19 March 2002 at $450 per day, and he told the court that on 21 March 2002 he sustained injury to his left thumb while working at the premises situated at Room 1014, Kwai Chi House, Kwai Fung in Kowloon. He said he was employed together with a friend, to work there since 19 March 2002 by the respondent; he had been working for the respondent in the previous year, 2001; and that the respondent had promised to give him other work after this piece of work on 19 March.

6. On 21 March 2002 at about 4 pm, while working with a power tool, he sustained injury to his left thumb. He claimed all the tools were supplied by the respondent. He was hospitalised for two days at the Princess Margaret Hospital, where he received an operation to his left thumb which sustained a 2 cm deep laceration and a fracture of the proximal phalanx of the left thumb.

7. After the operation, he was discharged from the hospital. He was referred to physiotherapy and occupational therapy for three months, three times a week. He was granted sick leave up to 15 July 2002.

8. Indeed, Form 7 at page 6 of the bundle 4 of the bundle of documents showed that on 8 July 2003 the applicant was assessed to have suffered from left thumb injury resulting in pain and stiffness. The period of sick leave granted was from 21 March 2002 to 15 July 2002. Further, the loss of earning capacity permanently caused by the injury was assessed at 2 per cent.

9. The respondent being absent and no evidence being adduced to contradict the applicant's evidence, I accept the applicant's evidence that he was promised he would be paid $450 per day for the days he would be working at this job; and that on the average, he would work 20 days a month; and that Mr Massie, his legal representative, has shown me figures from the Census and Statistics Department of the Hong Kong Government that the applicant's wage of $450 per day is not above the average daily wage of an unskilled labourer at a construction site.

10. Mr Massie also asked on behalf of the applicant the quantum be calculated on the basis of the applicant's working 26 days a month. The basis of his claim is that the applicant had, in his evidence, said he worked from Monday to Saturday and sometimes on Sundays.

11. However, he also said in court that he worked 20 days a month, so therefore 26 days a month is contrary to the applicant's own evidence. The fact that he said he worked on Mondays to Saturdays and sometimes Sundays does not automatically mean that he would be working seven days a week or six days a week. His work was in the construction industry, it is not a Monday to Friday, 9 to 5 job, or Monday to Saturday, or Monday to Sunday job. It depends on how long the job lasts, and he would be required to go to work, although he is entitled to one day off every seven days under the legislation in Hong Kong.

12. I accept the applicant's own evidence that he worked 20 days a month; he would be paid on the 15th and the 30th of each month; and that was the number of working days he had in a month in the year 2002.

13. As to the quantum, under section 10A, Medical Expenses, there are medical receipts from the Hospital Authority for the two days that the applicant remained in hospital, and it amounted to $136. Under section 10, Sick Leave, this is supported by the medical assessment certificate, Form 7, that he was granted sick leave between 21 March 2002 and 15 July 2002.

14. The calculation is therefore:

$450 per day x 20 days = $9,000 x 3.75 months

- which Mr Massie accepted to be the correct time of the sick leave -

= $33,750.

15. Under section 9, Permanent Partial Incapacity:

2% incapacity at $450 per day x 20 days x 96 x 2%

- the total comes to, for permanent partial incapacity under section 9 -

= $17,280.

16. So the total amount of compensation comes to $51,166.

17. I shall grant to the applicant interest on the medical expenses at 2 per cent from 23 March 2002 to date of judgment; as to sick leave and the section 9 compensation, interest at half judgment rate from the date of the issue of the application to date of judgment; thereafter, for all compensation, at judgment rate until full payment.

18. Costs to the applicant to be taxed if not agreed.

19. The applicant's own costs to be taxed in accordance with Legal Aid Regulations.