LI PUI KEI v. CHOI KAI MING AND CHOY (CHOI) CHONG YIP t/a KAI SHUNG ELECTRICAL REPAIRS

DCEC 229 / 2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. DCEC 229 OF 2001

______________________

______________________

J U D G M E N T

______________________

1. The Application is for employees’ compensation for the injury suffered by the Applicant. The application was made pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”). The Applicant also appeals against the assessment on loss of earning capacity made by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) under a Certificate of Review of Assessment issued on 24 October 2001.

2. The Respondents were absent at the trial. The hearing  proceeded with the Applicant’s case presented to the Court.

The Facts

3. The Applicant was born on 20 September 1981 and was aged 18 at the date of the accident.

4. He said he was employed by the Respondents but he never met anyone from Kai Shung Electrical Repairs, nor had he met Choi Kai Ming or Choy (Choi) Chong Yip. He was introduced by a Kwok Wai Mo Dee (“Kwok”) to work at a site at the South Kowloon Magistrates’ Court. His duties were to install lighting equipments inside the court rooms. He said only he and Kwok worked on the said job. The tools were supplied by Kwok and he also told him what to do at the site. He asked Kwok who his employer was and was told that it was Kai Shung. According to Kwok his salary would be $9,100 a month. The salary would be passed to Kwok by Kai Shung Electrical Repairs and Kwok would pass the same to him. In his mind Kwok was also a worker of the Respondents.

5. On 29 October 1999, the 8^th day since he started work at the site, his right foot was entangled and cut by some sharp metal sheets placed on the ground and he suffered an injury in his Achilles tendon. He was hospitalized for 3 days and was granted 179 days of sick leave thereafter.

6. He was assessed by the Board to have 1% loss of earning capacity. The Applicant asks to appeal against the assessment and says that according to the report of Dr. Lam Kwong Chin dated 8 March 2001, the loss of earning capacity suffered by him should be 5%.  

Liability

7. There was little the Applicant could tell the Court about the relationship between him and the Respondents. He said that it was due to the short period of his employment before the accident happened. The strongest evidence in the possession of the Applicant is the Form 2 [61-65] apparently furnished by the Respondents sent to the Labour Department in respect of this claim. Employment of the Applicant was admitted in the said Form 2. It was signed by Choy (Choi) Chong Yip with a company seal of Kai Shung Electrical Repairs. The monthly income of the Applicant was stated to be $9,100 per month. The date of accident was stated to have happened on 14 July 2000. It also admitted that the accident happened in the course of employment.

8. I do not see anything to compromise the reliability of the said Form 2. I have considered that the date of accident in it did not tally with the date of accident as alleged by the Applicant, I accept that it could have been mistakenly put down. I accept the Applicant’s saying that he had worked for the Respondents for 8 days only and had never worked for them again since. I also accept the Applicant’s evidence that he received instruction from a person whom he believed to be the staff of the Respondents and he worked with the tools supplied by the same.

9. After considering all evidence put forward by the Applicant before me, I am satisfied on balance of probability that the Respondents were the employer of the Applicant and that there was an accident happened on the date as said by the Applicant, and such accident arose in the course of and out of the employment. The Respondents should therefore be liable for the injury suffered by the Applicant.

Quantum

10. The Applicant filed an appeal against the assessment and review by the Board. The assessment of his loss of earning capacity by the Board was 1%, whereas Dr. Lam made his assessment at 5% [pp52-57]. The assessment of Dr. Lam has not been challenged and I see no reason why I should not accept the same. I therefore allow the appeal and assess the compensation on the basis of 5% as and when necessary.

11. The Applicant was aged 18 at the time of the accident. His salary was $9,100 per month. I therefore assess the compensation in accordance with sections 7(1)(a) and 9 to be $43,680.00, i.e. $9,100 x 96 x 5%. The compensation under section 10 is $43,437.33, i.e. $9,100/30 x 179 x 4/5. The Respondents should also be liable to pay $1,276.00 for medical expenses.

12. I enter judgment in favour of the Applicant against the Respondents jointly and severally in the amount of $88,393.33 with interest at the rate of 4.0345% per annum from the date of accident up to the day of final judgment and thereafter at full judgment rate until full payment of the above judgment sum. I also award costs to the Applicant with certificate for Counsel, to be taxed if not agreed.