Lao Jianming v. Homy Decoration Ltd and Others

DCEC 2778/2019

[2022] HKDC 797

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2778 OF 2019

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before: Deputy District Judge B Mak

Date of Hearing: 21 July 2022

Date of Judgment: 3 August 2022

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JUDGMENT

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Introduction

1.This is the trial for assessment of compensation.

Procedural history

2.By the order of Her Honour Judge Levy dated 26 November 2021, interlocutory judgment on liability was entered against the 3^rd respondent.

3.By my order dated 4 July 2022, leave was granted to the applicant to discontinue the claim against the 1^st and 2^nd respondents.

4.By the order of Her Honour Judge Levy dated 10 February 2022 (“the order”), the trial for assessment of compensation was fixed for 21 and 22 July 2022 at 9.30 am in Court No 30.

Service

5.A sealed copy of the order was served on the 3^rd respondent on 7 April 2022 at it registered office.

6.I am satisfied that the 3^rd respondent has had due notice of the trial but has chosen not to appear.

Assessment of compensation

Section 9

7.The applicant was employed by the 3^rd respondent as a carpentry worker on 4 June 2019 at the daily wage of $1,500. He was injured on 19 June 2019.

8.The applicant said he would work for 26 days per month. For the period of time he worked for the 3^rd respondent, he had worked on all days except Sundays.

9.Section 11(2) of the Employees’ Compensation Ordinance (“ECO”) provides:

“Where by reason of the shortness of the time during which an employee has been in employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

10.By a list of earnings filed by the 3^rd respondent on 25 April 2022, the 3^rd respondent confirmed that the applicant’s daily wage was HK$1,500.

11.I accept that the applicant would work for 26 days per month at the daily wage of $1,500. His monthly earnings should be $39,000 ($1,500 x 26 days).

12.The applicant was 29 years old at the time of the accident. Under s7(1)(a) of ECO, the multiplier is 96. According to the Sixth Schedule of ECO, the statutory limit of earnings is $30,530.

13.The Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed the loss of earning capacity permanently caused by the injury as 12%.

14.Accordingly, the compensation under s9 of ECO is $351,705.60 ($30,530 x 96 months x 12%).

Section 10

15.The Board certified the periods of absence from duty as a result of the injury at 244 days.

16.Accordingly, the compensation under s10 of ECO is 253,760 ($39,000 x 4/5 x 244days/30).

Section 10A

17.The applicant has incurred $2,220 on medical expenses.

Partial payment

18.The applicant has received a total of $39,000 from the 3^rd respondent.

Conclusion and award

19.Accordingly, I find that the applicant is entitled to compensation in the sum of $568,685.60 which is made up of the following:

Section 9 compensation Section 10 compensation Section 10A compensation Total: LESS partial payment Net compensation:

$351,705.60 $253,760.00 $ 2,220.00 $607,685.60 $ 39,000.00 $568,685.60

Interest

20.The applicant is entitled to interest at half judgment rate from the date of the accident (ie 19 June 2019) to the date of judgment and thereafter at judgment rate until the date of payment.

Costs

21.I also order the 3^rd respondent to pay the applicant the costs of the assessment of compensation, to be taxed if not agreed.

22.The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Ms P Y Wong, Solicitor, of K Y Woo & Co, assigned by the Director of Legal Aid, for the applicant

The 3^rd respondent was acting in person, absent