Wong Kam Shu v. Ng Wai on and Others

DCEC 21/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 21 OF 2006

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IN THE MATTER OF AN APPLICATION

BETWEEN

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Coram: Deputy District Judge Bernard Mak in Court

Date of Trial: 17^th March 2009

Date of Judgment: 17^th March 2009

Date of Handing Down Reasons for Judgment: 29^th April 2009

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REASONS FOR JUDGMENT

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1.This is an application for compensation under Section 9 (permanent partial incapacity), Section 10 (temporary partial incapacity) and Section 10A (medical expenses) of the Employee Compensation Ordinance (Cap.282).

2.The Applicant claims compensation for injuries sustained in an accident on 5^th March 2005 which allegedly arose in and out of the course of his employment with the 1^st Respondent.  At the material time, the Applicant was aged 42.

3.On 19^th July 2006, the Applicant filed a notice of appeal against the Certificate of Review of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board.

4.Initially, only the 1^st and 2^nd Respondents were parties to this action.  Upon the Order by Judge Lok, leave was granted to join the 3^rd Respondent as a party on 24^th December 2007.

5.The 1^st and 3^rd Respondent did not file any Answers and thus interlocutory judgment was entered against them on 29^th September 2006 and 19^th March 2008 respectively.  The 2^nd Respondent disputes liability.  As such, the issues for determination are:

i.  Whether the 2^nd Respondent is liable as a sub-contractor under section 24, Cap. 282? and

ii.  Quantum of compensation.

6.All Respondents were absent at the hearing.

Evidence

7.The Applicant gave evidence during the trial.  According to his evidence, on 5^th March 2005, at about 11:30am, he was dismantling an air-duct (“the Air Duct”) on the ceiling of a restaurant on Ship Street, Wanchai (“the Restaurant”).  He was standing on an A-shaped ladder to unscrew the Air Duct at one end, while the 1^st Respondent was standing on another A-shaped ladder and used his hands to support the Air Duct at the other end.   The 1^st Respondent suddenly lost his balance and lost his grip, causing the Air Duct to fall and hit the ladder the Applicant was stepping on.  As a result, the Applicant fell onto the ground and suffered injuries including fracture of calcaneum of his right ankle and contusion of his left upper lip.

8.As a result of the injury, the Applicant was given 167 days of sick leave, all of which were supported by sick leave certificates.

Liability

9.It is Applicant’s understanding that the 1^st Respondent is paid by the 2^nd Respondent.  However, the Applicant had no knowledge of the relationship between the 3^rd Respondent and the other 2 Respondents.

10.The Applicant also gave evidence that in or about May 2004, the 1^st Respondent began working as a contractor for the 2^nd Respondent.  Further, the Applicant asserted that two days prior to the accident, the 1^st Respondent telephoned the Applicant and told him to start work at the Restaurant the following day, as the 1^st Respondent had obtained a contract for decoration works from the 2^nd Respondent.

11.The 2^nd Respondent was absent at the hearing and thus there was no evidence to contradict the Applicant’s testimony.  I find the Applicant a credible witness and thus find that the 3^rd Respondent was the principal contractor and the 2^nd Respondent was the sub-contractor was the employer for the purposes of section 24, Cap. 282.  Thus I find the 2^nd Respondent liable for the Applicant’s claim for employee compensation.

Quantum

12.The Applicant gave evidence that at the time of the accident, his daily wages were HK$500, and that he worked on average 23 to 24 days per month.  As such, he calculated his average monthly earnings for a period of 12 months before the accident to be HK$11,800.

13.Further, solicitor for the Applicant submitted that the Applicant’s injuries bear the closest resemblance to “ankylosis” as set out in the First Schedule of the Employees Compensation Ordinance.  As such, it was submitted that the percentage for permanent loss of earning capacity should be within the range of 15% to 25%.  It was suggested that in light of the Applicant’s injuries, a percentage of 20% should be adopted.

14.The Applicant has provided documentary evidence for 167 days of sick leave and $300 in medical expenses. 

Section 9 compensation

15.I accept that the Applicant’s average monthly income prior to the accident was $11,800.  I further accept the percentage for permanent loss of earning capacity to be 20%.  As such, the assessment is as follows:

$11,800 x 72 (s.7(1)(b)) x 20%= $169,920 

Section 10 compensation

16.The Applicant was granted 167 days of sick leave, all of which were supported by sick leave certificates.  As such, the assessment is as follows:

$11,800 x 167/30 x 4/5 = $52,549 

Section 10A compensation

17.Initially in the pleadings, a sum of $5,000 was claimed for medical expenses under this head.  However, during the hearing, solicitor for the Applicant conceded that only $300 should be awarded under this head since only $300 worth of medical expenses were supported by receipts.  Accordingly, I make an award of $300 under this head.

Summary

18.The total amount of damages awarded is as follows:

Section 9	$169,920
Section 10	$52,549
Section 10A	$300
Total:	$222,769

Interest and costs

19.Interest at half judgment rate from the date of the accident (5 March 2005) to the date of assessment (17 March 2009).  Thereafter, interest at judgment rate until payment.

20.In view of my judgment against the 2^nd Respondent on liability, and the judgments entered against the 1^st and 3^rd Respondent, I make an order nisi that the costs of this action be borne by the 1^st, 2^nd and 3^rd Respondents, to be taxed if not agreed.  The Applicant’s own costs are to be taxed in accordance with Legal Aid Regulations.

Representation:

Ms Wong Siu Ping of Messrs Liu, Chan and Lam, assigned by the Director of Legal Aid, for the Applicant.

The 1^st to 3^rd Respondents, unrepresented, absent.