CHUNG CHI HUNG v. TIU HIU MING t/a LENG SENG ENGINEERING CO.

DCEC 495/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 495 OF 2007

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J U D G M E N T

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1.    This is the assessment of the compensation payable by the Respondent to the Applicant under the Employees’ Compensation Ordinance.

2.    The Applicant was a painting worker.  On 16 June 2006, his right index finger was cut when he was trying to pry open the lid of a paint drum at Block B of Whampoa Building in Hung Hom.  It is the Applicant’s case that the accident arose out of and in the course of his employment with the Respondent.  He instituted these proceedings against the Respondent to claim for compensation under ss.9, 10 and 10A of the Ordinance.  The Respondent had failed to file an answer and judgment on liability was entered against him on 26^th October 2007.

3.    I am satisfied that the Respondent has been duly notified of today’s assessment and has been served with all the necessary papers.

4.    According to the Applicant, he was employed by the Respondent as a painting worker from 12 June 2006 at the daily wage of $400.  He was asked to remove the spalling and paint the stairwells of Whampoa Building as well as doing all the odd-jobs there. 

5.    On 16 June 2006, he had to mix paint as the paint needed for the work had almost run out.  The Respondent had previously showed the Applicant how to open the paint tins and to mix paint.  The paint was contained in metal tins of about 2 feet tall and 1½ feet in diameter.  The lid was clipped onto the body of the tin by 16 small metal plates.  There was a small hole of about ¼ inch in diameter at the centre of each metal plate.  A screwdriver would have to be inserted into the hole on each metal plate to pry the plates away from the tin in order to open the lid.  The Applicant was not supplied with gloves. 

6.    As he was prying open the small plates with a screwdriver, he missed a hole and the front of his right index finger crushed with the small plate.  After the crush, his right index finger was gushing with blood.  He then went to the Accident and Emergency Department of Kwong Wah Hospital for treatment.

7.    According to the medical reports of Kwong Wah Hospital, the Applicant suffered a 1 cm long laceration with tendon cut on his right index finger.  He was admitted to the Orthopaedic ward for operative treatment with the tendon cut repaired.  The Applicant was discharged on the same day and was referred to physiotherapist and occupation therapist for rehabilitation.  Sick leave was granted to 15 September 2006. 

8.    The Applicant was 38 years of age at the time of the accident.  The Employees’ Compensation (Ordinary Assessment) Board has accepted that the Applicant suffered right index finger injury resulting in scarring, pain and stiffness and assessed the Applicant’s loss of earning capacity permanently caused by the injury to be 0.5% and the period of absence from duty necessary as a result of the injury to be from 16 June 2006 to 15 September 2006.  The certificate is admissible in evidence of the matters stated therein: see s.16H of the Ordinance.

9.    Under s.5 of the Ordinance, the Respondent as the Applicant’s employer is liable to pay compensation calculated in accordance with the Ordinance in respect of personal injury caused by accident arising out of and in the course of Applicant’s employment.

10.    The compensation payable under s.9 of the Ordinance for the Applicant’s permanent partial incapacity is $ 4,992 (i.e. $400 x 26 x 96 x 0.5%).

11.    The compensation payable under s.10 of the Ordinance for the Applicant’s temporary incapacity is $25,514 (i.e. $400 x 26 x 92/30 x 4/5).

12.    I accept the Applicant’s testimony that he has paid $467 for medical treatment.  The compensation payable under s.10A of the Ordinance is $467.

13.    The total compensation payable by the Respondent to the Applicant under the Ordinance is therefore $30,973, together with interest thereon at half the judgment rate from the date of the accident to the date of the judgment and thereafter at the judgment rate until full payment.

14.    Costs normally follow the event.  There is nothing in this case justifying a departure from this general rule.  I therefore order the Respondent to pay the Applicant the costs of this assessment, to be taxed if not agreed.  The Applicant’s own costs is to be taxed in accordance with the Legal Aid Regulations.