Farman Khan v. Shun Sum Engineering Co (A Firm)

DCEC 89/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 89 OF 2008

____________

____________

Coram:  His Hon Judge Leung in court

Date of hearing:  4 May 2010

Date of judgment:  4 May 2010

ASSESSMENT OF COMPENSATION

1.Khan, the Applicant, got injured in the course of work for Shun Sum, the Respondent, on 10 October 2006.  As a result, Kan commenced legal proceedings against Shun Sum for compensation pursuant to the Employees’ Compensation Ordinance, Cap.282 in the District Court and for damages under the common law in the High Court (HCPI 850/2008).

2.Khan has obtained judgment in HCPI 850/2008.  On 9 February 2010, Master Wong handed down his assessment of damages in the sum of HK$1,586,942.

3.Shun Sum is unrepresented in the present Application.  Last January, its Answer was struck out.  This is the assessment of compensation.  Shun Sum has appeared by its director on a few occasions previously but is absent today.  According to the affirmation of service filed on behalf of Khan, I am satisfied that the service of all relevant documents including the notice of today’s hearing have been effected.

4.Khan adopted his statement as evidence.  I accept the evidence adduced on his behalf.  I find that at the time of the accident, Khan was working as a construction site worker for Shun Sum earning on average HK$9,880 a month.  This is also what the Master in HCPI 850/2008 found and Shun Sum is bound by such finding.

5.For the multiple injuries resulting in prolapsed intervertebral disc at L5/S1, neck pain and back pain, the Employees’ Compensation (Ordinary Assessment) Board issued a certificate of assessment on 30 July 2008, concluding that Khan suffers 7% loss of earning capacity.  Khan accepts such assessment.

SECTION 9 COMPENSATION

6.Kan was born on 21 March 1972 and was 38 years old at the time of the accident.  The multiplier for assessment is 96.  The compensation should therefore be HK$9,880 x 96 x 7% = HK$66,394.

SECTION 10 COMPENSATION

7.Mr Clement for Khan referred to the sick leave that was accepted by the Master in HCPI 850/2008 to be reasonable.  The duration was 39 months.  The Master also found that Khan could not resume his pre-accident job and even after surgical treatment.

8.The Ordinance sets out the statutory confines for this part of the Application.  An employee is entitled to payment in respect of sick leave for a maximum of 24 months and, with the court’s leave, up to a maximum of 36 months.  See section 10(5).    The sick leave period certified by the Board was for the period of about 21 months.  But the ongoing sick leave certified by the hospital is unchallenged.  I therefore calculate on the basis of the statutory maximum of 36 months of sick leave.

9.The compensation under section 10 should be HK$9,880 x 36 x 4/5 = HK$284,544.

SECTION 10A COMPENSATION

10.Khan does not proceed with this part of the Application.

SUMMARY

11.The total compensation shall be HK$(66,394 + 284,544) = HK$350,938.

ORDER

12.Shun Sum shall therefore pay to Khan compensation in the sum of HK$350,938 together with interest thereon at half judgment rate from the date of accident until today and thereafter at the judgment rate until full payment.  Khan shall have costs of and occasioned by these assessment proceedings, including any costs reserved.  If not agreed, costs shall be taxed and Khan’s own costs shall be taxed in accordance with legal aid regulations.

Representation:

Mr Richard CLEMENT of Messrs Massie & Clement for the Applicant upon the assignment of the Director of Legal Aid

Respondent, in person, absent