Lam Ma Yam v. Lee Kai Ming Mickey t/a Infinity Co
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DCEC 615/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEE’S COMPENSATION CASE NO. 615 OF 2004 -------------------- BETWEEN
-------------------- Coram : Deputy District Judge W. C. Li in Court Date of Trial : 10th January 2007 Date of Handing Down Judgment : 17th January 2007 ______________________ J U D G M E N T ______________________ 1.This was an application by the Applicant for employees’ compensation under the Employees’ Compensation Ordinance, Cap. 282, against the Respondent as his employer. An accident occurred on 12 June 2003 when the Applicant was working as a delivery worker and his right leg was crushed by a bundle of metal sheets inside a container truck. At the time, the Applicant was unloading furniture and a bundle of metal sheets from the inside of a container, and three other colleagues were also working there loading the items unloaded into light goods vehicles. 2.The Applicant was introduced to work for the Respondent who was the sole proprietor of Infinity Company (“Infinity”) by a Mr. Tsui Hiu Ming who also worked for the Respondent then. He started working for the Respondent as a delivery worker on 23 March 2002 and he had worked for the Respondent for more than a year at the time of the accident. In the accident case report to the police, the Respondent was the informant and he said the Applicant was a goods checker of Au Mei Furniture Company. The Applicant testified that this was not a true statement and the Respondent was lying to avoid his liability to pay compensation. No Form 2 was filed. The Applicant solicitors tried to contact the Respondent by telephone and by post but to no avail. The last known telephone number was found to be no longer valid and the Respondent could no longer be found at his last known address. The Labour Department was contacted and it was found and confirmed that the Respondent did not have Employees’ Compensation insurance when this accident occurred. No explanation was given why the Respondent had not been prosecuted for not having employees’ compensation insurance. The Applicant was paid by the Respondent in cash on most occasions but there were some occasions when the Applicant was paid by cheque. The Applicant produced a copy of a cheque drawn by Infinity Company dated 25 July 2002 for the amount of $5,400.00 made payable to the Applicant for his wages. The Respondent had also given $3,000.00 to the Applicant on discharge from hospital on 21 June 2003, $2,000.00 given via a colleague called Lau Chun Kei on 27 June 2003, and also $5,000.00 via another colleague called Tsui Chun Choi on 11 July 2003, and the Applicant believed these were meant to be compensation paid by the Respondent for his injuries sustained at work. 3.On liability, the evidence supported the Applicant’s case that he had worked for the Respondent and the Respondent through his company, Infinity, had paid wages to the Applicant even in 2002, i.e. months before the occurrence of this accident in June 2003. The Applicant had also received monies from the Respondent directly or indirectly after the accident, meant to be compensation for his work injuries. It also appeared that the Respondent had not taken out Employees’ Compensation insurance cover and had tried to avoid liability by claiming that the Applicant was employed by another company called Au Mei Furniture Company. I would find for the Applicant that the Respondent was the Applicant’s employer at the time of the accident on 12 June 2003. The Applicant was instructed by the Respondent to carry out the work in moving furniture and a heavy bundle of metal sheets from a container at the time of the accident. The accident occurred in the course of the Applicant’s employment. The Applicant was therefore injured during and in the course of his employment. The Respondent was clearly liable and the Applicant is entitled to judgment on liability against the Respondent in the employees’ compensation claim. 4.On quantum, the Applicant was struck by a heavy, hard object on his right leg and he suffered open fracture of the tibia and fibula. He was 20 years old at the time of the accident. The Employees’ Compensation Assessment Board assessed the Applicant to have a 2% loss of earning capacity and this assessment was accepted by the Applicant. The Applicant received on average $7,500.00 per month in wages and that included the overtime work he had to do, sometimes until 3 a.m. and for which he was paid $25 for each overtime hour. He received a total of 263 days of sick leave and these were supported by medical leave certificate shown to the court. A total of $1,950.00 was incurred for medical expenses and the receipts for these were also produced to the court. 5.For Section 9 compensation, the calculation is therefore: 96 x $7,500 x 2% = $14,400.00. 6.For Section 10 compensation for sick leave, the calculation is: 263 days x 4/5 x 263/30 = $52,600.00. Credit is to be given to the $10,000.00 that had been given to the Applicant by the Respondent. Under this head, the award will therefore be $42,600.00. 7.For Section 10A for medical expenses, the Applicant’s claim of $1,950 is allowed in full. 8.Judgment is therefore entered for the Applicant against the Respondent in the sum of HK$58,950.00 together with interest at half judgment rate from the date of the accident, i.e. 12 June 2003, to the date of handing down of this judgment, and further interest at judgment rate from the date of handing down to the date of full satisfaction of the judgment sum by the Respondent to the Applicant. I also order that the Respondent is to pay the Applicant’s costs of this action, to be taxed if not agreed. The Applicant’s own cost is to be taxed in accordance with Legal Aid Regulations. This costs order nisi is to be made absolute 14 days after handing down.
Representation: Mr. David Brettell of Messrs. Munros for the Plaintiff. The Respondent, in person, absent from the trial. |