Kan Kwok Cheung v. Cheung Chung t/a 實惠室內裝修傢俬設計公司 Also t/a Shu Wai Design & Decoration

DCEC 617/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 617 OF 2007

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Coram:  His Hon Judge Leung in court

Date of hearing:  31 March 2008

Date of judgment:  31 March 2008

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ASSESSMENT OF COMPENSATION

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1.Kan (the Applicant) got injured in the course of work for Cheung (the Respondent) on 6 October 2006.  Kan filed his claim against Cheung pursuant to the Employees’ Compensation Ordinance, Cap.282.  Cheung has not entered appearance.  Judgment on liability was entered on 4 January 2007 for compensation to be assessed.

2.Cheung was absent today.  According to the affirmation of service filed on behalf of Kan, I am satisfied that the service of all relevant documents including the notice of today’s hearing have been effected by way of substituted service.  There is no reason for preventing Kan from proceeding today.

INJURIES

3.On the day in question, Kan was assigned by Cheung to carry out dismantling work inside a residential flat at Tai Wai, New Territories.  In the course of using an electric breaker to dismantle the wall tiles near the door frame of one of the rooms, a wooden strip detached from the door frame and some chips of wall tiles and building debris fell off and hurt Kan’s left eye.  In court, Kan adopted his statement and gave evidence.  I accept them as a true account of how he got injured.

4.After the accident, Kan took rest, hoping the pain in his eye would subside.  But the contrary condition developed.  He attended the accident & emergency department of the hospital.  He was diagnosed to have suffered from left eye infection.  He was discharged with sick leave.  He attended the department of ophthalmology and visual sciences of the hospital 2 days later for pain and discomfort in the eye.  It was then revealed that Kan had severe left corneal abscess due to foreign object.  He had to remain hospitalised for further management.  Kan eventually underwent a left eye evisceration with Medpor implant (i.e., removal of the eyeball and replacement by an implant) before discharge on 1 November 2006.

5.Sick leave was granted for the period between 7 October 2006 and 10 March 2007.

LOSS OF EARNING CAPACITY

6.The medical records of the government hospitals evidence the diagnosis and treatment mentioned above.  Kan confirmed the sick leave period, which is supported by the medical certificates.  I accept such evidence.

7.For the injury resulting in loss of his left eye, the Employees’ Compensation (Ordinary Assessment) Board issued a certificate of assessment on 24 October 2007, concluding that Kan suffers 50% loss of earning capacity.  Kan asked that his compensation be assessed in accordance with such certificate.

SECTION 9 COMPENSATION

8.According to Kan, he started to work for Cheung only on 23 September 2006.  He received a daily wage of HK$250 from Cheung and had to work 6 days a week.  He has received 2 payments of wages: once in September by cash in the sum of HK$1,700 for 7 days’ work; once in October by bank transfer in the sum of HK$1,500 for the first 6 days of work in October immediately prior to the accident.  On the basis of a 26-working-day-month, his average monthly income would be HK$6,500.  I accept his evidence which is consistent with his previous declarations to the Labour Department.

9.Kan was born on 15 September 1959 and was 47 years old at the time of the accident.  The multiplier for assessment would be 72 months.  The compensation should therefore be HK$6,500 x 72 months x 50% = HK$234,000.

SECTION 10 COMPENSATION

10.The sick leave period between 7 October 2006 and 10 March 2007 was certified by the Board.  The compensation under section 10 should be HK$6,500 x 5 months and 3 days (or 5.1 months) x 4 / 5 = HK$26,520.

SECTION 10A COMPENSATION

11.Covered by the social welfare scheme and therefore exempted from medical expenses, Kan did not pursue this part of the application.

SUMMARY

12.The total compensation shall be HK$(234,000 + 26,520) = HK$260,520.

ORDER

13.I therefore order that Cheung shall pay to Kan compensation in the sum of HK$260,520 together with interest thereon at half judgment rate from the date of accident (6 October 2006) until today and thereafter at the judgment rate until full payment.  Kan shall have costs of and occasioned by these assessment proceedings, including any costs reserved, subject to taxation.  Kan’s own costs shall be taxed in accordance with legal aid regulations.

Representation:

Miss Winnie Cheung of Messrs Au-Yeung, Cheng, Ho & Tin for the Applicant

Defendant, in person, absent