Yu Yixin v. Leung Chi Tin Andy

DCEC431/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEE'S COMPENSATION NO. 431 OF 2006

______________________

BETWEEN

______________________

Coram : Deputy District Judge S T Poon in Court

Date of Hearing :   11 May 2007

Date of Delivery of Judgment : 11 May 2007

______________________

J U D G M E N T

______________________

1.The applicant was employed by the respondent as an interior decoration worker.  He fell down from the ladder on to the ground while he was performing drilling work in the course of his employment with the respondent.

2.The respondent does not appear for trial this morning.  I am satisfied that he has been properly informed of the hearing date, and I decided to proceed in his absence.

3.The applicant gave evidence at the witness-box.  I have no reason to doubt his evidence and I accept his evidence in full.

4.The applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board as suffering from 1 per cent loss of earning capacity, and is maintained at 1 per cent upon review.

5.Apart from claiming under section 9, 10 and 10A of the  Employees’ Compensation Ordinance Cap 282, the applicant also lodged an appeal under section 18 of the Ordinance on the assessment of the Assessment Board.

6.The applicant submitted a medical report of his orthopaedic expert, Dr Kong Kam Fu, James, who assessed the permanent incapacity of the applicant as 5 per cent and gave an opinion that the loss of earning capacity should also be 5 per cent.  There is no basis given in the report in respect of how Dr Kong arrived at these figures, especially there is no basis upon which Dr Kong gave the opinion relating to the Employees’ Compensation Ordinance on the assessment of the loss of earning capacity.

7.In the circumstances, I find myself without sufficient assistance from the evidence of the medical expert or any evidence from the applicant to allow me to make the assessment afresh departing from the one originally given by the Assessment Board.  In the circumstances, there is no injury listed under that schedule comparable to the present one suffered by the applicant.

8.In the report of Dr Kong, with some intermittent resting, the applicant can still perform his job as a decoration worker and driver.

9.In the premises, my assessment of the loss of earning capacity of the applicant would be the same as the one assessed by the Assessment Board of 1 per cent.

10.According to the evidence of the applicant, the applicable monthly wages before the injury of the applicant was $12,900.  Having this figure as the basis of calculation, the compensation under section 9 would be 12,900 times 72, times 1 per cent, equal $9,288, given the fact that the applicant was 50 years old at the time of the accident.

11.The compensation under section 10 would be, taking into account the sick leave awarded of 184 days, the amount would be 12,900 times 4 over 5, times 179 over 30, equals $61,576, having taken into account the statutory holidays within the sick leave period.

12.The medical expenses incurred by the applicant are justified.  An appropriate amount awarded under section 10A would be a total amount of $1,540, which gives us a total of $72,404, and I award this amount in favour of the applicant against the respondent together with interest thereon at half judgment rate from the date of accident until judgment and thereafter at judgment rate until payment.

13.Costs of the application be to the applicant to be taxed if not agreed.

14.Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Mr Kenneth Leung of Messrs Kenneth W Leung & Co. for Applicant

Respondent, in person, absent