Yip Kwai v. Chung Leung
Read the full judgment text of DCEC 1/1978 on BabelCite. This District Court judgment.
1. The Applicant claims Workmen's Compensation from the Respondent for two months of total temporary incapacity from 17th February to 15th April, 1977.
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DCEC000001/1978 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION WORKMEN'S COMPENSATION CASE NO. 1 OF 1978 -----------------
----------------- Coram: Judge Rhind in Court. Date of Judgment: 3rd May 1978 ----------------- JUDGMENT ----------------- 1. The Applicant claims Workmen's Compensation from the Respondent for two months of total temporary incapacity from 17th February to 15th April, 1977. 2. It is common ground that Applicant and Respondent worked together in a coolie gang on 2nd February 1977. Respondent has consistently maintained that his relationship with Applicant in the gang was not that of employer to employee but it is too late for there to be any dispute on that now for the Labour Tribunal has already found that Respondent was the employer and, as I indicated in my preliminary ruling, this court is now estopped from challenging the earlier court's determination of this issue. 3. Once it is established that Respondent was the employer, there can be no room for disputing that a member of his coolie gang was a "workman" as defined in Section 2(1) of the Workmen's Compensation Ordinance. 4. Respondent has made a live issue of whether Applicant was injured on 2nd February 1977, but the evidence on this in Applicant's favour is overwhelming. Respondent says he was not there when Applicant was injured and does not know what happened. I accepted the evidence of Applicant and also of R.W.2 and R.W.3 that Applicant injured his ankle while working with the gang on 2nd February. To be more specific, as Applicant unloaded fruit with the gang, a door of a container fell in his ankle, injuring his Achilles tendon. There could be no clearer case of an accident arising out of and in the course of the employment. 5. Respondent and his witnesses tried to belittle the nature of Applicant's injury, but I unhesitatingly accept Applicant's evidence that the injury he received in the accident just described necessitated his absence from work for the period 17th February to 15th April 1977. The medical evidence from A.W.1 and A.W.2 supported Applicant on this. More-over, the medical certificates (Exhs. A4(1)-(5)) produced by Applicant established the period of his absence to be one of total temporary incapacity: See Section 10(2) of Cap. 282. 6. Attention can now be turned to the quantum of compensation. Applicant should be awarded for his two months' absence from work. (Para. 8 of his claim states that he could earn $1,578 per month after the accident but I have no doubt that was never intended to mean he could earn $1,578 per month during the period 17th February - 15th April. I am satisfied that during that period he could and did earn nothing). 7. Para. 7 of the Application asserts Applicant's average monthly earnings at the time of the accident to have been $1,578. That is the figure the Labour Tribunal found Applicant to have earned in the four weeks prior to his dismissal by Respondent on 17th February, 1977. 8. The method of calculating monthly earnings for the purposes of Cap. 282 is set out in Section 11 thereof. Unfortunately neither Applicant nor Respondent has kept a record of Applicant's earnings during the period he worked with Respondent, which was from about April 1976 to 17th February 1977. A request to Respondent under Section 11(8) of Cap. 282 could not have brought forth the assistence which Respondent is supposed to render to enable Applicant to calculate his monthly earnings because Respondent, not considering himself to be an employer, does not bother to keep such records. 9. The only hard data available indicative of what Applicant had been earning were his salary slips Exh. A5(i)-(viii) produced before me, and the similar slips which were produced before the Labour Tribunal as Exh. C4. It was common ground that all the slips were written by Respondent. 10. Three of the slips produced before me did not even bear dates. I was alert to the possibility that Applicant might have deliberately failed to disclose any slips which would depress his average, but, being satisfied that Applicant was an honest witness, I was satisfied that he merely produced to the court all the slips which happened to be in his possession. I saw no reason to suppose that the slips in evidence before my court and the Labour Tribunal were weighted to produced an above average result for monthly earnings, and I regarded it as reasonable to use them as a basis from which to draw inferences as to Applicant's likely monthly earnings. 11. The slips can be conveniently tabulated as follows, showing chronological order where dates are available.
12. From these figures I consider it reasonable to extrapolate that Applicant's average earning over the period he was employed by Respondent were unlikely to have been less than the figure of $1,578 claimed by para. 7 of the Application. An average of slightly less than $400 per week would beat this target. Beside the hard data afforded by the pay slips, there are also the impressions of Respondent and his witnesses on what Applicant's average monthly earnings were. None of Respondent and his witnesses struck me as detached towards Applicant's cause. Respondent was positively hostile and his witnesses, who were both in court throughout the whole proceedings, gave me the impression that their first loyalty was to Respondent rather than the truth. I think that all three of them made deliberate understatements when giving their estimates of Applicant's earnings. The one who was caught out the worst on this was R.W.2 who said that the most Applicant would have got in a week was $600 to $700 whereas a glance at the pay slips shows an amount even as high as $1,175 for a week. 13. In view of the foregoing I therefore hold that Applicant's monthly earnings for the purposes of Section 10 and Section 11 of Cap. 282 were $1,578. 14. My understanding of the purpose of Workmen's Compensation is that it is meant to compensate the workman for his loss of earnings during a period of incapacity. Thus, for example, under Section 10(1) any earnings by the employee after the accident go towards the reduction of the compensation. 15. As the result of the judgment in the case before the Labour Tribunal, Respondent has already been ordered to pay Applicant $1,578 in respect of his wages for the month following 17th February 1977. That was a straight forward award under Section 8A of the Employment Ordinance Cap. 57 of a sum equal to a month's wages because Respondent had wrongfully dismissed Applicant. 16. It does not seem fair that Applicant should be compensated twice for loss of wages that first month. Section 10(6) of Cap. 282. makes provision for such a case. It is in the following terms:-
17. As the Labour Tribunal's award means that Applicant will lose nothing by way of wages for his first month's incapacity, I award him nothing for that period. 18. For the second month's incapacity Applicant is entitled to Workmen's Compensation at the full rate of two thirds of his monthly earnings. The calculation produces a result of $1,052. ($1,578 x 2/3) 19. There will therefore be judgment for Applicant in the sum of $1,052.
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