Ip To Chu v. Hui Yick Sang t/a Kee Song Civil Engineering Co

DCEC 1422/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1422 OF 2008

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BETWEEN

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Before: Deputy District Judge Alfred H. H. Chan

Date of Hearing: 8 February 2010

Date of Handing Down of Judgment: 18 February 2010

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JUDGMENT

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1.This is an Application for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap.282 (“the Ordinance”).  The Respondent has not lodged an Answer to the Notice of Application.  On 28 July 2009, default judgment was entered against the Respondent, with the amount of compensation to be assessed.

2.The Respondent, who apparently never took out insurance for the Applicant, has taken no steps in this Application and was absent at the Assessment hearing, which proceeded without him.  The Applicant gave evidence and adopted her witness statement dated 21 September 2009 as part of her evidence-in-chief.

Accident and Injuries

3.The Applicant was employed by the Respondent as a general worker at different construction sites.  On 15 October 2007, she was instructed by the Respondent to lay zinc plates on the top of a stack of two containers.  She finished the task and was negotiating her way down when she accidentally fell from a height of about 10 metres to the ground and lost consciousness.  She was admitted to Tuen Mun Hospital for treatment.  She suffered a closed fracture of the pelvis  and was treated with external fixation of the pelvis, and on 22 October 2007 with close reduction by the insertion of a sacro-iliac screw.  She received rehabilitation by physiotherapy and occupational therapy.  The external fixator was removed on 20 November 2007.  She was discharged from hospital on 14 December 2007, and thereafter received outpatient follow-up consultations until 22 July 2009.  On the last occasion she complained of residual pelvic pain which required on-demand analgesics.  She could tolerate walking with a walking-stick, and the possibility of her resuming work was low.  She was granted sick leave from 15 October 2007 to 16 December 2008.  She was aged 39 at the time of the accident.

Loss of Earning Capacity

4.Under a Certificate of Review of Assessment issued on 19 August 2009, the Applicant was assessed to have suffered a loss of earning capacity of 10%.  The Applicant is appealing against that Certificate in this Application.  In support of that appeal, the Applicant relies on a medical report of Dr Lau Hoi Kuen, who examined her on 17 September 2009.  Her present complaints include persistent pain in her lower back and left buttock which disturbs her sleep and is aggravated by poor weather, menstruation, walking for over 25 minutes, sitting for over 30 minutes, or standing for over 10 minutes.  She also suffers from pain in her neck but there is no evidence linking it to the accident.  Dr Lau is of the opinion that the Applicant suffered a severe compression injury of the pelvis, and a fracture of the left transverse process of the L4 and L5 vertebrae, which have left her with a significant residual deformity of the pelvic ring.  She will be left with severe pain in the pelvic ring (mainly at the left sacro-iliac joint) and residual stiffness of her left hip.  Although she has no problem coping with her daily life, she certainly will not be able to resume work as a construction site worker but may undertake lighter and more sedentary jobs.  Dr Lau assesses her loss of earning capacity as a result of the pelvic and lumbar spine injury to be 15%.  I accept Dr Lau’s medical evidence and find that the Applicant has suffered a 15% loss of earning capacity for the purpose of this Application.

Monthly Earnings

5.Mr Victor Cheung, Counsel for the Applicant, has very helpfully put forward 3 figures for the calculation of the Applicant’s monthly earnings.  The first is $15,000, the amount paid by the Respondent on 12 October 2007 to the Applicant, presumably for the month of September, the month immediately preceding the accident.  The second alternative figure is $15,960, based on a daily wage of $450 admitted by the Respondent in Form 2.  The Applicant worked 30 days in September 2007, plus 11 hours of overtime work at an hourly rate of $60, and she should have been entitled to have pay in lieu of 4 rest days.  All that adds up to $15,960.  The third alternative is $17,687.50 (which was revised upwards from the figure of $16,437.50 in Mr Cheung’s skeleton opening submission, after the Applicant gave evidence).  This is the average monthly earnings, according to the Applicant, for the 12 months preceding the accident, based on the actual payments made by the Respondent into the Applicant’s bank account, as evidenced by her account passbook.  Mr Cheung has asked me to adopt the third alternative figure, being the amount most favourable to the Applicant, under section 11(1) of the Ordinance.

6.In the Applicant’s witness statement, she said that the average monthly wages over the 12 months preceding the accident was $13,937.50.  In her evidence, the Applicant produced a calendar in which she had kept a record of the hours of overtime work she had done for the Respondent, and the dates on which she did so, which showed that prior to the accident, she would from time to time work overtime (beyond her normal hours of 8 a.m. to 6 p.m.), though not particularly frequently.  She also referred to passbook entries which she said were deposits by the Respondent of her wages.  She relied on 11 entries from 9 January 2007 to 20 December 2007, totalling $212,250.  The amounts differed from payment to payment, and the deposits were not made on any fixed day of the month.  The Applicant explained that the Respondent was not always on time with the payment of wages, and when he did pay, he would sometimes pay a smaller amount than the actual wages due, all depending on his cash flow.  Sometimes he would include some of the back pay he owed the Applicant in a later deposit.  However, when asked if any of the 11 payments she was relying on included any back pay, she was adamant that they did not.

7.Of these 11 deposits, the amounts ranged from $14,000 to $39,000.  In between there were figures of various amounts, including $15,000, $20,000 and $25,000.  As the Plaintiff accepted, her basic daily wage was $450.  Even allowing for pay in lieu of rest days, her basic monthly wages should have been around $15,300.  The supposed monthly earnings of $17,687.50 over the previous 12 months would give an additional amount of over $2,300 per month, which cannot be entirely accounted for by her overtime work as shown in the calendar in respect of the relevant months.  When asked if she could explain how the difference might be accounted for, the Applicant said that the Respondent would give her a bonus around Chinese New Year, although she did not say how much.  Other than that, the Applicant was not really able to offer any explanation.

8.Having considered the evidence, including the Applicant’s own evidence that the Respondent was sometimes late with his payment of wages, the basic daily wage of $450, and her record of overtime work, I am not satisfied, that all of the amount of $212,250, being the sum of the 11 deposits being relied on, represented her earnings over the 12 months preceding the accident.

9.I do however accept her evidence that she worked every day in September 2007 (30 days) and her record of overtime work for that month (11 hours).  She would also have been entitled to pay in lieu of her rest days.  The amount of her earnings for that month was therefore $450 x (30 + 4) + $60 x 11 = $15,960.  I adopt this amount as her monthly earnings at the time of the accident under section 11(1) of the Ordinance.

10.As Mr Cheung for the Applicant submits, where the figure of $15,960 is adopted, the award for loss of earning capacity under section 9 of the Ordinance is $15,960 x 96 x 15% = $229,824.; the award under section 10 (for 14 months of sick leave when the Applicant was unable to work at all) should be $15,960 x 14 x 4/5 = $178,752, and then less $77,890 received from the Respondent, giving a net figure of $100,862.

11.The Applicant also claims medical expenses, reasonably incurred and supported by receipts which I accept, in the sum of $11,226, less $6,220 received from the Respondent in this regard, leaving a net claim of $5,006 under section 10A of the Ordinance.

12.The quantum of compensation for the Applicant should be $229,824 + $100,862 + $5,006 = $335,692.  I therefore give judgment for the Applicant in the sum of $335,692, with interest thereon at half the judgment rate from the date of the accident to the date of judgment, and thereafter at the judgment rate until payment, with costs to the Applicant, to be taxed if not agreed, with Certificate for Counsel.

Mr Victor C. F. Cheung, instructed by Messrs Tony Kan & Co, for the Applicant

Respondent absent