Mak Chi Keung v. Lai Kam Piu t/a 錦記廢紙五金

DCEC 632 OF 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO.632 OF 2009

************

BETWEEN

************

Coram: Deputy District Judge Alfred H.H. Chan

Date of Hearing: 12 February 2010

Date of Handing Down Judgment: 18 February 2010

***************

JUDGMENT

***************

1.This is the trial of an Application under the Employees Compensation Ordinance, Cap.282 (“the Ordinance”) by the Applicant for compensation for personal injury caused by accident arising out of and in the course of the Applicant’s employment by the Respondent.  Notice of the Application was served on the Respondent who never filed an Answer or took any steps in these proceedings.  Despite that, no default judgment on liability has yet been entered against the Respondent.  Mr Lam of the Applicant’s Solicitors has explained to me that as the Respondent was not insured, there is a potential claim in respect of the ECAS Fund, and that the solicitors for the Fund Board has requested the Applicant not to enter default judgment.

Liability

2.The trial proceeded in the absence of the Respondent.  The Applicant relied on documents in the Trial Bundle filed in accordance with directions of the court.  The Applicant also gave evidence in the witness box and adopted his witness statement filed on 13 November 2009 as his evidence-in-chief.  He also confirmed that apart from a total amount of $156,000 (the individual payments of which were evidenced by entries in copies of his wife’s Bank of China passbook), he had received no further payments from the Respondent since the accident.  I accept the Applicant’s evidence.  The Respondent also admitted in Form 2, Notice of Accident, submitted on 6 August 2007, that he was at the time of the accident the employer of the Applicant.  He also pleaded guilty to charges in a number of summonses in relation to the accident or under the Ordinance itself.

3.I am satisfied that the Applicant was an employee of the Respondent at the time of the accident and that he suffered the personal injury (which I will deal with below) in the course of his employment.  I therefore hold the Respondent liable to pay the Applicant compensation under the Ordinance.

Injuries and Treatment

4.The accident occurred on 12 July 2007.  The Applicant was instructed by the Respondent to operate a horizontal baling machine to compress waste carton boxes into bales, at the Respondent’s workshop.  While he was operating the machine, his right hand was severed at the wrist by the machine.

5.At the Pamela Youde Nethersole Eastern Hospital, an attempt was made at replantation of the hand, which was unsuccessful.  Following that, multiple surgeries had to be performed, including a surgical amputation of the forearm, debridement of the wound, and skin graft.  Due to the shortness of the residual limb, neither a mechanical nor a myo-electric hand prosthesis would be appropriate, and a cosmetic hand prosthesis was prescribed for the Applicant.  As a result of the accident, the Applicant has lost his forearm, and is left with scars over his thigh(s) because of the skin graft.  He would require 2 to 3 check-ups per year.  His current prosthesis (which was provided to him free of charge) will last for about 3 years.  Any future replacements will have to be paid for by himself.

Quantum

6.On quantum, Mr Lam for the Applicant relies on the Certificate of Review of Compensation Assessment (Form 6) issued on 18 September 2008, which assessed the Applicant’s loss of earning capacity at 76%.  He accepts that since there was no appeal against that Certificate, the assessment is binding.  Therefore the Applicant’s claim for compensation is $656,640 under section 9 and $108,800 under section 10, giving a sum of $765,440.  As the Applicant has received a total of 156,000 from the Respondent, the quantum in this case is $609,440.

Conclusion

7.I therefore give Judgment for the Applicant against the Respondent in the sum of $609,400, with interest thereon at half the judgment rate from the date of the accident to the date of judgment, and thereafter at judgment rate.  I also make an order nisi on costs that the Respondent shall pay the costs of the Application and the Applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Mr Allen S K Lam of Messrs Liu, Chan and Lam, for the Applicant

Respondent absent