Hussain Asim v. Sze Wing Chuen

DCEC 1246/2020

[2022] HKDC 509

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1246 OF 2020

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before:  Deputy District Judge Kenneth K.H.Lee in Court

Dates of Hearing:  27 May 2022

Date of Assessment of Compensation:  27 May 2022

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ASSESSMENT OF COMPENSATION

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Introduction

1.This is the hearing of an assessment of compensation pursuant to sections 9, 10, 10A of the Employees’ Compensation Ordinance (Cap.282) (“the Ordinance”) in respect of an accident happened on 20 June 2019.

2.By order dated 4 December 2020, interlocutory judgment on liability was entered against the respondent with compensation to be assessed with costs on liability up to the hearing of the interlocutory judgment.

3.The respondent was absent at the hearing today. Having read the affirmation of service, I am satisfied that the respondent was informed of the hearing today.

The accident

4.On 20 June 2019, the applicant was assigned to work at a site at Room 3X, 3/F, Kiu Fat Mansion, 96-106J Lok Shan Road, To Kwa Wan, Kowloon, Hong Kong (“the Premises”). He was instructed to push a heavy trolley to collect and dispose of construction waste. When he was pushing the trolley along a slope, a bucket with construction waste on the trolley tilted and caused him to step onto slippery sand and fell down on the ground. As a result, the applicant suffered injuries to his left shoulder, left upper limb and left hand.

The injury and medical Evidence

5.The applicant attended A&E of Queen Elizabeth Hospital (“QEH”) on the same day. On medical examination, it was found that he had redness and tenderness over his left hand dorsum and redness over his left scapular (shoulder) region. X-ray showed no fracture. The clinical diagnosis was “left hand contusion and left shoulder contusion”. He was treated and discharged.

6.On 22 June 2019, the applicant attended Yan Chai Hospital (“YCH”) for medical treatment. Physical findings included tenderness over left posterior shoulder and tenderness and mild swelling over dorsum of left hand. X-ray of left shoulder showed no fracture. He was treated and discharged.

7.On 25 June 2019, the applicant attended the private clinic of Dr Chan Sai Keung. He complained of left hand pain and stiffness and left shoulder pain on motion. Physical examination showed that he could not make a full fist and there was tenderness over the metacarpal heads of the left fingers on the dorsum. Ultrasound examination revealed mild soft tissue swelling and intact tendons, pain on left shoulder and soft tissue swelling over scapula. He attended follow-up consultations on 6 June 2019 and 20 July 2019.

8.On 17 August 2019, the applicant attended Department of Orthopaedics & Traumatology of YCH again. Physical examination showed tender trapezius and slightly reduced grip power of left hand. Physiotherapy was referred.

9.From 8 January 2020 to 17 June 2020, the applicant received physiotherapy in YCH, including upper limbs and back mobilization, strengthening and self-massage exercise, magnetic therapy, hot pack and Intermittent neck traction. He complained of residual left shoulder pain and hand numbness. He was discharged with home exercise.

The assessment by the Board

10.The applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”). The assessed injury was “left hand and left shoulder injuries resulting in (1) left hand pain, weakness and numbness (2.5%); (2) Left shoulder pain and stiffness (1.5%)”. The loss of earning capacity permanently caused by the injury was assessed at 4%. The period of absence from duty was assessed from 20 June 2019 to 2 September 2020.

The applicant’s earnings at the time of the accident

11.In Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643, it was held that s 11 of the Ordinance provided 3 approaches for calculating monthly earnings:-

(1)  S 11(1) of the Ordinance is applicable when an employee was employed by the same employer during the specified periods (1 month and 12 months) preceding the accident.

(2)  The first limb s 11(2) of the Ordinance is applicable when there is evidence of the average earnings of a person in the same grade employed by the same employer during the 12 months preceding the accident.

(3)  In the absence of the evidence required under the first limb, the second limb of s.11(2) of the Ordinance is applicable. The employee can rely on the evidence of the earnings of a person of similar earning capacity in the same class and district of employment. If the nature of the employee’s work prior to the accident was the same as that at the time of the accident, he is entitled to use his previous earnings as the basis for calculating quantum.

12.In the present case, Mr Lai, counsel for the applicant, submitted that the “third approach”, ie the second limb of s.11(2) of the Ordinance, should be adopted to determine the applicant’s monthly earnings. His reasons were as follows:-

(1)  The respondent employed the applicant to work with the same wage as before at $1,000 per day. On the date of the accident, the applicant had not finished working for the respondent at the Premises for 1 whole month. He started working there on 17 June 2019 and the accident happened on 20 June 2019.

(2)  S 11(1) of the Ordinance is not the applicable section because the applicant was not employed by the respondent for 1 month (as he had only worked for 3 days before the accident), or 12 months preceding the accident (as the job was not a permanent one for 12 months continuously).

(3)  When the applicant was employed by the respondent on casual basis at a daily rate and the time of employment was short or of a casual nature, s 11(2) of the Ordinance is applicable.

(4)  The first limb of s 11(2) of the Ordinance is not applicable because there is no evidence of a person in the same grade employed by the respondent at the same work for the 12 months preceding the accident.

(5)  Accordingly, the applicable method for calculation of income should be the second limb of s 11(2) of the Ordinance. As the nature of the applicant’s work prior to the accident was the same as that at the time of the accident, the applicant was entitled to use his previous earnings as the basis for calculating quantum.

13.I accept those submissions. Adopting this approach, the calculation requires 2 figures: (1) the applicant’s daily wage when working as a construction worker of the same nature prior to the accident; and (2) the average number of working days per month when working in the same job prior to the accident.

14.According to the evidence of the applicant, which I accept, he was employed by the respondent as a construction worker / labourer. He was employed on a casual and daily basis with the daily wage of $1,000 per day, which was the market rate for construction workers. He stated that when he was working as a general construction worker by other companies and contractors before working for the respondent in the Premises, he was also employed on casual basis and the wages were also calculated on daily basis. For the 12 months preceding the accident, he also received the daily wage of $1,000 per day, which was the market rate for workers with similar experience and job duties.

15.The said daily wage of $1,000 per day is also consistent with the figures from the Census and Statistics Department of the HKSAR Government in respect of the “Average Daily Wages of workers engaged in Public Sector Construction Projects as reported by main contractors” during the relevant periods.

16.According to the applicant, he was required to work for 26 days per month on average. He worked for 6 days per week and took rest for 1 day per week, usually on Sunday.

17.The applicant’s case is not rebutted by the respondent. The respondent did not file any list of earnings or adduce any other evidence in relation to the applicant’s earnings. I accept that the applicant’s monthly earnings should be in the sum of $26,000 ($1,000 x 26).

Section 9 of the Ordinance: Compensation in case of permanent partial incapacity

18.The applicant was 26 years old at time of accident.

19.As the applicant’s age was under 40, the relevant section is s 7(1)(a) and the multiplier is 96 months.

20.The statutory maximum amount at the time of the accident was $30,530 as per the second column of Sixth Schedule of the Ordinance opposite s 7(1)(a) in the first column.

21.Since the applicant’s monthly earnings of $26,000 is lower than the maximum amount of $30,530, the lesser sum of $26,000 should be adopted for the purpose of s 7 of the Ordinance.

22.According to Form 7, the applicant was assessed by the Board to have loss of earning capacity at 4%.

23.Therefore, the compensation under s.9 of the Ordinance should be assessed at: $26,000 x 96 x 4% = $99,840

Section 10 of the Ordinance: Compensation in case of temporary incapacity

24.The Board certified the period from 20 June 2019 to 2 September 2020. There was a total of 441 days.

25.Therefore, the compensation under s 10 of the Ordinance should be assessed at: $26,000 x 441/30 x 4/5 = $305,760

Section 10A of the Ordinance: Payment of medical expenses

26.Under s 10(3) and Third Schedule of the Ordinance, the medical expenses payable by the employer are the amount incurred or the amount at the rate of $300 for each day he received treatment, whichever is the less.

27.Having considered the evidence, I am satisfied that the total amount of medical expenses under s 10A of the Ordinance should be assessed in the total sum of $2,860.

Periodical payments

28.According to the applicant, he had not received any sick leave payments and reimbursement of medical expenses from the respondent.

Summary

29.In summary, the compensation is as follows:-

Section 9	$99,840
Section 10	$305,760
Section 10A	$2,860
Total	$408,460

Order

30.I make the following orders:-

(1)  The respondent do pay the applicant compensation in the sum of $408,460.

(2)  There be interest on the said sum of $408,460 at half judgment rate from the date of accident to the date of judgment and thereafter at judgment rate until payment.

(3)  The respondent do pay the applicant costs of this action after the hearing of the interlocutory judgment, with certificate for counsel, to be taxed if not agreed.

(4)  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

31.I thank Mr Lai for his assistance.

Mr Alex Lai Sze Wai, instructed by Choy Yung & Co, assigned by the Director of Legal Aid, for the applicant

The respondent was not represented and did not appear