Liu Xiaoping v. Huen Ho Yin and Huen Yuen Fan, The Joint and Several Liquidators of Leung Sum Kee Et Al Framework, Pipework and Demolish Engineering Ltd (in Liquidation) and Another

DCEC 2169/2020

[2022] HKDC 1063

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2169 OF 2020

-------------------------

IN THE MATTER OF AN APPLICATION BETWEEN

-------------------------

Before: Deputy District Judge B. Mak in Court

Dates of Hearing: 14 September 2022

Date of Judgment: 29 September 2022

---------------------

JUDGMENT

----------------------

Introduction

1.This is the trial for assessment of compensation.

Procedural history

2.By the order of Master J Wong dated 15 December 2020 under HCCW 166/2020, leave was granted to the applicant to continue and proceed with the present proceedings against the 1^st respondent.

3.By the order of Her Honour Judge Levy dated 10 September 2021, interlocutory judgment on liability was entered against the 1^st and 2^nd respondents.

4.By the order of Her Honour Judge Levy dated 22 April 2022 (“the order”), the trial for assessment of compensation was fixed for 14 September 2022 at 9.30 am in Court No 30.

5.By a letter dated 7 June 2022, the Joint and Several Liquidator (“the liquidator”) of the 1^st respondent informed the court that as the director of the 1^st respondent had remained uncontactable, no assistance could be offered by him at the trial. The liquidator was excused from attending the trial.

6.Mr Yang Wento attended trial on 14 September 2022 purportedly on behalf of the 2^nd respondent. By the order of Her Honour Judge Levy dated 30 April 2021, the 2^nd respondent was directed to comply with the requirements of Order 5A within 14 days from the date of the order. However, the said order was not complied with at all. Mr Yang therefore could not represent the 2^nd respondent at the hearing.

Assessment of Compensation

Section 6(1)

7.The applicant was the wife of Mr Xu Guoqi (“the deceased”). The deceased was a scaffolding worker. He was employed by the 1^st respondent who was the sub-contractor of the 2^nd respondent. The 2^nd respondent was the principal contractor of the dismantling work of a scaffolding erected on the external wall of 5^th Floor, 147 Un Chau Street, Sham Shui Po, Kowloon, Hong Kong (“the scaffolding”). On 13 December 2018, while he was dismantling the scaffolding, he lost his balance and fell onto the flat roof of the 1^st Floor of the adjacent building. He died as a result on the same day.

8.Madam Tsui Yuen Hung was the daughter of the deceased. She was the company secretary of the 1^st respondent between 27 January 2016 and 27 August 2017. She was responsible for the accounting works of the 1^st respondent. She said the deceased was a skilled scaffolding worker and was paid $1,500 per day. On average, the deceased worked for 22 to 23 days per month.

9.In a statement of Mr Leung Shu Sum, the proprietor of the 1^st respondent, given on the day of the accident, he said the deceased had been employed by the 1^st respondent for 4 to 5 years at the daily wage of $1,500.

10.However, in the accident report in Form 2 dated 18 December 2018, the 1^st respondent stated that the average working days of the deceased was 17 days and his earnings for the month preceding the accident was $23,800. Also, in the record of interview of Mr Leung dated 6 June 2019, he said the daily wage of the deceased was about $1,400.

11.Section 11(1) of the Employees’ Compensation Ordinance, Cap 282 (“ECO”), provides:-

“(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings: –

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

12.In the Form 2, it was not stated that an insurance coverage was taken out. The lower monthly earnings of the deceased (in terms of daily wage and working days) stated in the Form 2 could had been given with the possibility of an uncovered claim in mind. So was the answer given in the record of interview.

13.In my view, the daily wage of the deceased given by Mr Leung on the day of the accident was untainted by self-interest and is more credible. This was in line with the amount of daily wage stated by Madam Tsui.

14.Accordingly, I find as a fact that the deceased’s daily wage was $1,500 and his working days per month were 22. His monthly earnings should therefore be $33,000 ($1,500 x 22 days).

15.The deceased was 55 years old at the time of the accident. Under s6(1)(b) of ECO, the multiplier is 60.

16.The Sixth Schedule of ECO in force at the time of the accident provided that the maximum amount of monthly earnings was $28,360.

17.Accordingly, the compensation under s6(1) of ECO is $1,701,600 ($28,360 x 60).

Funeral expenses

18.Madam Tsui said that she paid $113,074.04 in funeral expenses of the deceased.

19.Under s6(5) and the Sixth Schedule of ECO in force at the time of the accident, the maximum amount of funeral expenses recoverable is $83,700.

20.Accordingly, the compensation under s6(5) of ECO is $83,700.

Conclusion and award

21.Accordingly, the applicant is entitled to compensation in the sum of $1,785,300 which is made up of the following: -

Section 6(1)	$ 1,701,600
Section 6(5)	$ 83,700
Total:	$ 1,785,300

Interest

22.The applicant is entitled to interest at half judgment rate from the date of the accident (ie 13 December 2018) to the date of judgment and thereafter at judgment rate until the date of payment.

Apportionment

23.The compensation shall be apportioned according to paragraph 5 of the Seventh Schedule of ECO as follows: -

The applicant, the wife	50%, ie $892,650
Tsui Yuen Chun, the son	25%, ie $446,325
Tsui Yuen Hung, the daughter	25%, ie $446,325

Costs

24.The 1^st and 2^nd respondents shall pay the applicant the costs of the assessment of compensation with certificate for counsel, to be taxed if not agreed.

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

Mr Alfred CP Cheng, instructed by KB Chau & Co, assigned by the Director of Legal Aid, for the applicant.

The Joint and Several Liquidator of the 1^st respondent was excused from attendance.

The 2^nd respondent was not represented and did not appear.