Shin Chi Wai v. T Squared Productions Ltd

DCEC 1940/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1940 OF 2015

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J U D G M E N T

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Background

1.This is an assessment of compensation of the applicant’s claim under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

2.On 27 May 2015, the applicant was employed by the respondent as a casual worker and was assigned by the respondent to work at the premises situated at 3 Sports Road, Happy Valley, Hong Kong. 

3.The applicant’s duty was to install a banner on top of a temporary metal frame structure which was about 3 meters tall from the ground.  When he was installing the banner, the metal frame structure suddenly flipped over and he fell on the ground, resulting in injury to his right wrist.  The applicant sustained personal injury by the above accident arising out of and in the course of his employment by the respondent on that day.

4.The applicant was assessed by the board on 28 January 2016 and according to the Form 7 issued by the board on 11 February 2016, the applicant’s assessment was that his permanent loss of earning capacity caused by the injury was “right wrist fracture resulting in pain, weakness and stiffness of 3%”.

5.The applicant commenced these proceedings on 17 September 2015.  The respondent has failed to file any documents in reply and interlocutory judgment on liability was entered in favour of the applicant against the respondent for its failure to file any answer by the order dated 23 December 2016 made by Her Honour Judge Levy, in chambers, with compensation to be assessed.

Discussion

6.The applicant came to court to give evidence.  He adopted his witness statements with calculation of his days of sick leave.  He confirmed that he was granted sick leave for the period from 27 May 2015 to 12 November 2015 with both days included, ie, for a total of 170 days.  He was paid daily of HK$650 and he worked on average of 26 days a month.

7.The respondent was absent at this assessment hearing.  In the absence of any evidence against the applicant, I attach full weight on the evidence of the applicant.

Compensation for Permanent Partial Incapacity under Section 9, ECO

8.I accept that the applicant is entitled to compensation under this head.  I accept his daily wages were $650 per day and he worked on an average of 26 days per month.  I take the 3% of permanent loss of earning capacity according to Form 7.  Since the applicant was aged 30 at the time of accident, according to section 7(1)(a) of ECO, in case of an employee under 40 years of age at the time of accident, a lump sum equal to 96 months’ earnings shall be applied. Therefore, I accept the applicant’s calculation under this head be: HK$650 × 26 × 3% × 96 = HK$48,672.

Temporary Incapacity Compensation under Section 10, ECO

9.Mr Chan, for the applicant, submitted the applicant’s entitlement of compensation under this head to be calculated by taking $650 × 170 days × 4/5, departing from the usual formula of calculating such compensation based on the monthly wages.  Mr Chan admitted that using the monthly wages is the traditional formula to work out the compensation under this head. 

10.After consideration, I prefer using the traditional formula.  Therefore, the applicant’s entitlement under this head should be: HK$650 × 26/30 × 170 (days of sick leave) × 4/5 = HK$76,613.

11.The applicant acknowledged that the respondent has paid the applicant’s compensation in connection with this head, totalling HK$76,613.  Thus, the applicant has been fully paid by the respondent under this head.  Therefore, I make no award under this head.

Medical Expenses under Section 10A, ECO

12.The applicant gave evidence that he has incurred a total sum of about HK$1,000 for medical expenses and travelling expenses for treating his injury.  However, the applicant is unable to provide any receipts in support.  In any event, I accept that such sum is reasonable despite the lack of supporting documents.  So I allow the sum as claimed under this head.  As the respondent has paid the applicant compensation for medical expenses totalling HK$640, therefore, the net amount payable by the respondent under this head is HK$360.

Conclusion

13.For the above reasons, I assess the compensation payable by the respondent to the applicant as HK$49,032 including: (i) section 9 compensation of HK$48,672 and (ii) section 10A compensation of HK$360 with interest on the assessed sum at judgment rate from the date of application until full payment.

Costs

14.The costs of the application should follow the event.  The respondent shall pay costs of this application to be taxed if not agreed. 

15.As this application is uncontested and the respondent has not appeared at any direction hearings nor filed any documents to contest this application, the chance of the respondent’s sudden appearance at this assessment hearing is slim.  I have considered the applicant’s application for certificate of counsel. However, I do not see counsel’s attendance is necessary for this simple and straightforward hearing.  I thus refuse his application for counsel’s certificate.

Mr Chan Pak-kong, instructed by C M Chow & Company, for the applicant

The respondent was not represented and did not appear