Li Ping on v. Citideco Ltd.

DCEC000359/2001

DCEC359/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 359 OF 2001

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Coram: Deputy Judge H M Lee in Court

Date of Judgment: 6 March 2002

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J U D G M E N T

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1.This is the applicant's application for compensation under sections 9, 10 and 10A of the Employees' Compensation Ordinance, Cap. 282.

The Facts

2.The following facts are not in dispute and are found as facts of the case.

3.The applicant, then aged 48, was injured in the course of his first day of employment with the respondent as a carpenter, on 18 September 2000.

4.The applicant was given sick leave from 18 September 2000 to 15 October 2000 and from 17 October 2000 to 19 March 2001.

5.The applicant was earning $800 per day as a casual employee at the time of the accident.

6.The applicant was assessed by the Employees' Compensation (Ordinary Assessment) Board to be suffering from 2 per cent loss of permanent earning capacity.

7.The respondent paid a total of HK$28,160 to the applicant by two cheques dated 8 October 2000 and HK$11,520 and 1 October 2000 at HK$16,640.

Issues

8.The respondent admits liability but disputes the applicant's allegation that the applicant was working 30 days per month, prior to the accident, on average. The respondent adopts an average of 20 working days per month. The respondent admits the medical expenses claimed under section 10A.

The Applicant's Case

9.The applicant relied on his witness statement and gave oral evidence in court. The applicant detailed his employment with various named employers from 1 June 2000 to 17 September 2000.

10.According to the applicant, because of his having over 30 years' experience and his connection in the trade, he had been able to work non-stop since 1 June 2000. He worked on an average of 30 days per month. He kept no formal records or receipts except what he had marked on a calendar. He did not ask any of his former employers to provide him with proof of his employment and earnings with them, because he considered that they simply would not take the trouble. The applicant had not filed any tax return.

11.The applicant relied on the average number of working days per month filed by one of the respondent's directors under Form 2, which is the "Notice by an employer of the death of an employee or of an accident to an employee resulting in death or incapacity", dated 3 November 2000, which notice had not been amended, to say that the respondent had all along accepted the applicant's average number of working days per month to be 30.

The Respondent's Case

12.The respondent's case was that the information of the average number of working days filed by the respondent's director under Form 2, dated 3 November 2000, could not be taken as the respondent's admission, since the applicant was on his first day of work with the respondent. The information would have to be from the applicant.

13.It was conceded that the respondent had no evidence to support the respondent's contention that on the average the applicant worked for 20 days per month.

14.It is the respondent's case that should the court not find the applicant to be a credible witness, then the court should not accept 30 days to be the applicant's number of working days per month but at a lower rate.

Findings

15.The court did not find the applicant's oral evidence to be credible. The applicant had not been able to provide any details of his previous employment until today to support his claim of working an average of 30 days per month.

16.The applicant was not able to explain satisfactorily the reasons for such remissness. The respondent had no evidence to support his contention that the applicant worked for an average of 20 days per month either.

17.Adopting a pragmatic approach, the court will take into account that the worker should have a rest day once every seven days. The court will adopt a figure of an average of 26 working days per month and, on that basis, the quantum under section 9 would be HK$20,800 times 72 months times 2 per cent, coming to HK$29,952. Under section 10, HK$20,800 times 4, divided by 5, times 182 divided by 30 comes to an amount of HK$100,949.30.

18.The figures under section 10A had been agreed at $376, so less payment made by the respondent, the result would be HK$103,117.30.

19.There is the judgment for the applicant against the respondent, the judgment sum being HK$131,277.30, credit to be given to a sum of HK$28,160, being advance payments already paid by the respondent to the applicant, together with interest on the sum of HK$103,117.30 at the rate of 4.36 per cent per annum from the date of the accident, that is 18 September 2000, to the date of payment, thereafter at judgment rate until payment.

20.The respondent do pay the applicant's costs of this action, to be taxed if not agreed.

21.The applicant's own costs to be taxed in accordance with Legal Aid regulations.

Representation:

Present: Mr Raymond Cheung Wai-man, of Messrs Y L Yeung & Co, for the Applicant

Miss Lily Wong, of Messrs Au Yeung, Cheng, Ho & Tin, assigned by the Legal Aid Department, for the Respondent