Xie Shaofu v. Chow Tung Shing

DCEC273/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 273 OF 2009

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Before:    His Honour Judge Lok in Court

Date of Hearing: 4 February 2010

Date of Delivery of Judgment:    4 February 2010

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J U D G M E N T

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1.On 26 August 2008, the Applicant was employed as a renovation worker by the Respondent and was assigned to renovate a flat in Tsing Yi.  When cutting away some old floorboards with an electric disc grinder, the disc grinder flew off his hands and cut the Applicant’s left big toe.

2.Upon admission to Yan Chai Hospital after the accident, it was found that the Applicant suffered from a cut exterior tendon of the left big toe.  The X-ray also revealed fracture of the distal phalanx of the left big toe.

3.Judgment on liability has already been entered on 4 December 2009, and this is the assessment of the employees’ compensation of the Applicant’s claim.

4.The Applicant has been assessed by the Employees’ Compensation (Ordinary Assessment) Board to have suffered 3% permanent loss of earning capacity.  As the Applicant has not launched any appeal against such assessment, such assessment will be binding on this court.

5.The only issue here is the amount of monthly earnings of the Applicant at the time of the accident.  The Applicant sometimes worked for the Respondent and sometimes for the other contractors.  According to section 11(1)(a) of the Employees’ Compensation Ordinance, Cap. 282, the court can adopt the monthly earnings of the employee for the month immediately preceding the date of the accident to assess the amount of employees’ compensation.  After listening to the evidence of the Applicant, I am satisfied that such income was about $14,000 a month.  I therefore adopt such figure to assess the amount of employees’ compensation in the present case.

6.The Applicant was 47 years of age at the date of the accident.  The amount of compensation under section 9 can therefore be assessed as follows:  $14,000 x 72 x 3% = $30,240.

7.The Applicant was granted sick leave from 26 August 2008 to 12 December 2008 with a total of 109 days.  The amount of compensation under section 10 can therefore be assessed as follows:  $14,000 x 109/30 x 4/5 = $40,693.

8.I also accept that the amount of medical expenses under section 10A is $1,137.

9.The Applicant confirms that he had received a total of $44,700 from the Respondent as partial payment of the compensation.

10.The total amount of compensation can therefore be assessed as follows:  under section 9, $30,240; under section 10, $40,693; under section 10A, $1,137; sub-total: $32,070 less compensation already received $4,700, the total is $67,370.

11.I therefore certify the compensation of the Applicant in the said amount.  I also award interest on the said sum at 4% per annum, which is half the existing judgment rate, from the date of the accident to the date of judgment and thereafter at judgment rate until payment.

Mr Andrew Wong Charn-hung, of Messrs Huen & Partners, for the Applicant

Respondent, in person, present