Kami Lohar Ka Bahadur v. Ng Yuk Tong t/a Yuk Tong Air-conditioning Engineering

DCEC 873/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 873 OF 2008

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JUDGMENT

Background

1.This is a claim for employees’ compensation brought by Mr. Ka Bahadur relating to an accident on 9 January 2008.  Mr. Ka Bahadur was employed by the Respondent ("Yuk Tong") to work as a welder at a construction site. He was dismantling a platform made of iron beams and steel plates, and cutting a part of the platform with a gas cutter, when he slipped on the wet surface of the platform, and fell from a height of about 2.5 m to the ground. As a result, Mr. Ka Bahadur suffered injuries to his head and clavicle and had fracture in the right ribs. He was admitted to hospital on 9 January 2008 and discharged on 2 February 2008.

2.On 22 July 2008, Mr. Ka Bahadur filed this Application for compensation to the Court under section 18A of the Ordinance. By leave of the Court, this Application and other documents including the notice of trial was served by substituted service on Yuk Tong. Yuk Tong never took any part in these proceedings.

3.Mr. Ka Bahadur was assessed by the Employees' Compensation (Ordinary Assessment) Board ("Board") on 2 April 2009. According to the Certificate of Assessment issued by the Board on 16 April 2009 ("Certificate"), Mr. Ka Bahadur suffered multiple injuries resulting in right clavicle pain and swelling, right upper limb weakness, right side back pain, chest wall pain and right scalp mild pain. The period of sick leave certified to be necessary as a result of the injury was from 9 January 2008 to 2 April 2009. Mr. Ka Bahadur's loss of earning capacity permanently caused by the injury was certified to be 5%.

4.Neither Mr. Ka Bahadur nor Yuk Tong appealed against the Board's assessment within the period of 6 months prescribed under section 18 of the Employees' Compensation Ordinance ("Ordinance").

5.On 14 August 2009, judgment on liability was entered against Yuk Tong, for damages to be assessed.

6.On the day fixed for hearing of the assessment of damages, those acting for Mr. Ka Bahadur produced a medical report and sought to rely on it for purposes of the assessment. I refused to admit the medical report as there was never any order made for leave to any party to adduce expert medical evidence. Nor is medical evidence necessary, for the reasons set out in the following paragraphs.

The amount of compensation payable

Section 9

7.According to the Certificate, Mr. Ka Bahadur was assessed to have suffered 5% permanent loss of earning capacity. 

8.Mr. Tse who appeared for Mr. Ka Bahadur claims that compensation for Mr. Ka Bahadur's permanent partial incapacity resulting from the injury should be assessed under section 9 (1A) of the Ordinance.  It is claimed that the special circumstances are that Mr. Ka Bahadur's injuries resulting from the accident prevent him from returning to work as a welder or construction worker. After the accident, Mr. Ka Bahadur can only walk with the aid of a walking stick, and he has not been able to find any work in any construction site. Mr. Ka Bahadur had come to Hong Kong in 1997, having grown up in Nepal, where he had received education up to secondary level. He speaks Nepalese and only a little English. He has no experience other than working as a general labourer and a welder in construction sites in Hong Kong.  In view of his limited experience and skills, it is argued that he has a limited choice of jobs in the future, and hence, the formula in Hong Kong Paper Mills Ltd. v. Chan Hin Wu, CACV 45 of 1981, as applied in Lau Man Keung v. Yiu Wing Construction Co. Ltd, CACV 2232 of 2001 should be adopted for calculating the compensation payable. 

9.Notwithstanding Mr. Ka Bahadur's unfortunate circumstances, the unavoidable fact is that he was not advised to appeal, and in any event has not appealed, against the Board's assessment of his loss of earning capacity permanently caused by the injury. The authorities are clear that in such circumstances, in an application to the Court under section 18A, the Certificate becomes conclusive evidence through the appeal procedure under section 18 not being invoked (Ng Ming Cheong v. Mass Transit Railway Corporation [1997] 3 HKC 413; Lam Chi-Biu v. Mak Kee Limited & Anr. CACV 191/2004). The rationale has been clearly explained and is set out in the judgment of Le Pichon, J (as she then was) in Ng Ming Cheong, which I shall not repeat in this Judgment.

10.In the absence of an appeal against the assessment of the Board, the Court cannot entertain any expert evidence at trial, and the only evidence as to quantum should be the Certificate, and no more (paragraph 25 of the judgment of Le Pichon, J in Ng Ming Cheong, supra).

11.I accept that Mr. Ka Bahadur's monthly earnings at the time of the accident was $16,900. He was 42 years old at the time of the accident. The compensation payable to him under section 9 of the Ordinance is accordingly: $16,900  x  72  x  5% = $60,840

Section 10

12.The Certificate certifies a period of absence from duty of 448 days. The compensation payable under section 10 is: $16,900 /30  x  448  x  4/5 = $201,899.

Section 10A

13.I allow Mr. Ka Bahadur's claim for medical expenses, in the total sum of $7,794.40 sought.

Conclusion

14.The total compensation payable to Mr. Ka Bahadur is:

15.Mr. Ka Bahadur is entitled to interest on the sum of $211,413.40 at half judgment rate from the date of the accident, i.e. 9 January 2008, to the date of assessment, and to the costs of the action, to be taxed if not agreed. Mr. Ka Bahadur's own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr. Sammy Tse Lai Moon of Messrs. M.C.A. Lai & Co. (assigned by Director of Legal Aid) for the Applicant

The Respondent absent