Man King Sing v. Chan Shun on t/a Fortunate Printers (A Firm) and Another

DCEC 32/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 32 OF 2010

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Coram: Deputy District Judge Rebecca Lee in Court

Date of Hearing: 24 October 2011

Date of Judgment: 26 October 2011

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JUDGMENT

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Background

1.The history of the case was helpfully summarized by Mr. So (representing the Applicant Mr. Man King Sing ("Mr. Man")) in his written submission.

2.On 19 May 2008, Mr. Man sustained injury in an accident arising out of and in the course of employment at the premises of Flat 1007, 10/F, Golden Industrial Building, 16-26 Kwai Tak Street, Kwai Chung, New Territories, Hong Kong ("the Accident").

3.Mr. Man was working as a clerk of the production division of a printer/printing company. On the day of the Accident, Mr. Man sustained injury to his right middle and ring fingers when he was assisting a printing technician to work on the paper cutting machine.

4.Pursuant to Application dated 13 January 2010, Mr. Man claims for employee compensation in relation to the Accident under s.9, s.10, s.10A and s.10AB of the Employees' Compensation Ordinance, Cap. 282, Laws of Hong Kong ("the Ordinance") against the 1st Respondent Chan Shun On trading as Fortunate Printers (a firm) and the 2nd Respondent Fortunate Printers Limited (now in liquidation).

5.In early 2009, Mr. Man and his colleagues commenced proceedings at the Labour Tribunal against the 1st and 2nd Respondents for, amongst others, severance payments and annual leave pay under LBTC 713 of 2009.

6.It was ruled by the Presiding Officer on 16 February 2009 that the 2nd Respondent but not the 1st Respondent was the employer. The Presiding Officer's finding was affirmed by the High Court under HCLA 1 of 2011 on 11 March 2011.

7.Mr. Man then applied for, and was granted, leave to discontinue the present Application against the 1st Respondent on 25 March 2011.

8.In the meantime, the 2nd Respondent had been wound up by the Court on 16 September 2009 and leave was granted to Mr. Man to commence and proceed with employees' compensation and/or personal injuries proceedings in the District Court and the High Court against the 2nd Respondent in relation to the Accident.

9.Judgment on liability was entered on 10 June 2011 against the 2nd Respondent. This trial deals only with assessment of the amount of compensation payable to Mr. Man.

10.The provisional liquidators of the 2nd Respondent was also served with all the case papers and documents and has never intervened in the proceedings.

11.Mr. Man was assessed by the Employees' Compensation (Ordinary Assessment) Board ("the Board") on 10 March 2009 to have suffered from right hand injury resulting in right middle finger and ring finger stiffness, decrease of range of movement, pain, proximal interphalangeal joint contracture and decrease of grip strength. The loss of earning capacity permanently caused by such injury was said to be 4%.

12.The Board certified the period of absence from duty necessary as a result of the injury to cover the period from 19 May 2008 to 10 March 2009. see: Form 7, p.24, Bundle D.

13.Mr. Man was apparently not happy with the Board's findings and he was re-assessed again on 14 July 2009. The Board confirmed their findings on both loss of earning capacity and the period of absence. see: Form 9, p.25, Bundle D.

14.Mr. Man filed a Notice of Appeal on 13 January 2010 against the above assessment on (a) the period of absence from duty as a result of the injury, and (b) the loss of earning capacity permanently caused by the injury as set out in the Form 9.

15.According to Mr. So, the Board indicated that they would not intervene the present proceedings.

Evidence

16.There is only one witness at trial, i.e. Mr. Man himself.

17.So far as medical evidence is concerned, Mr. So referred to the medical report prepared by orthopaedic expert Dr. Wong Lok Yan, Ian dated 22 August 2011. see: pp.7 to 26, Bundle C.

Discussion

Compensation under Section 9

Loss of Earning Capacity

18.As mentioned, Mr. Man was assessed by the Board to have suffered from 4% loss of earning capacity.

19.According to Dr. Wong, Mr. Man suffered fractured proximal phalanges of right middle and ring fingers, as well as extensor tendon cut of right middle and ring fingers.

20.Dr. Wong referred to the First Schedule to the Ordinance, under which loss of earning capacity for ankylosis of proximal interphalangeal joint ("PIPJ") of the index finger is 3% and that for ankylosis of PIPJ of right finger is 2%.

21.Dr. Wong agreed with the Board that the loss of earning capacity should be 4%.

22.Mr. So confirmed at trial that Mr. Man no longer pursues the section 18 appeal regarding loss of earning capacity.

23.Having considered all the medical evidence before me, I am satisfied that the appropriate percentage for loss of earning capacity in this case is 4%.

Mr. Man's Average Monthly Earning

24.In his Application, Mr. Man claims that his monthly earnings for the month immediately preceding the accident was $11,076.00 and on average during 12 months (or any lesser period of employment with the employer) prior to the accident was also $11,076.00.

25.In his witness statement, which Mr. Man has adopted as his evidence in chief, it is said that his monthly earnings was about $11,000.00.

26.Mr. So has referred to a tax return for the period between 1 April 2007 and 31 March 2008 filed by the 1st and/or the 2nd Respondent in relation to Mr. Man's salary.  see: p.190, Bundle D.

27.It was shown that for the above-mentioned 12 month period (which was immediately before the Accident), Mr. Man's total salary was $132,917.00. His average monthly earnings for that period, Mr. So submitted, was $11,076.41.

28.In fact, I have noticed that the monthly salary within the 12 months from the date of the Accident was said to be $11,076.42 in both Form 5 and Form 6.  see: p.26 & 27, Bundle D.

29.Mr. Man has also explained to me at trial that his basic monthly salary was $11,000.00. But since he was required to work overtime, he would be remunerated by his employer in a sum proportionate to and with reference to his basic monthly earnings.

30.So on average, according to Mr. Man, his monthly salary at the time of the Accident was $11,076.41.

31.Mr. So has rounded up the figure to $11,076.00 in his calculation.

32.In view of all the evidence before me, I am satisfied that Mr. Man's average monthly earnings at the time of the accident was $11,076.00.

33.Mr. Man was aged 50 at the time of the Accident and is now aged 53. According to s.7(1)(b) of the Ordinance, he would be entitled to compensation equals to 72 months' earnings or 72 times the amount specified in the second column of the Sixth Schedule  shown opposite section 7(1)(b) specified in the first column of that Schedule, whichever is the less.

34.The amount specified in the second column of the Sixth Schedule is $21,500.00. I am bound to adopt Mr. Man's average monthly earnings in the sum of $11,076.00 in calculating compensation under section 9.

35.For reasons stated above, I award damages under section 9 as follows:-

$11,076 x 72 x 4% = $31,898.88.

Compensation under Section 10

36.The Board certified Mr. Man's period of absence from duty as a result of the injury to cover the period from 19 May 2008 to 10 March 2009 (a total of 296 days).

37.As said, Mr. Man appeals against the Board's finding under section 18.

38.Mr. Man said that he was granted sick leave until 17 March 2009.

39.Medical certificates issued by Princess Margaret Hospital ("PMH") as produced in the Court Bundle covers sick leave up to 17 March 2009.

40.Dr. Wong also agreed that sick leave should be granted until 17 March 2009.

41.In the light of all the medical evidence before me, I am satisfied that Mr. Man's length of sick leave is 303 days (i.e. 296 days + 7 days).

42.Mr. So has also deducted the 10 days of statutory holidays (from 19 May 2008 to 17 March 2009) in his calculation.

43.The length of absence from duty in this case is therefore 293 days (303 - 10).

44.Subject to advance payment and/or periodic payment which I shall deal with below, I find that the compensation payable to Mr. Man under section 10 is:-

$11,076 x 293/30 x 4/5 =$86,540.48.

Compensation under Section 10A

45.Mr. Man claims a total sum of $11,720.00 in his witness statement.

46.Such expenses were supported by documentary evidence. They include those incurred at PMH, at Medlad X Ray & Medical Diagnostic Centre Limited as well as at a bone-setting clinic.

47.The bone-setting clinic charged Mr. Man $300 for each treatment.

48.As rightly pointed out by Mr. So, section 10A caps the spending at $200 for each treatment per day.

49.Mr. So therefore revised Mr. Man's claim under section 10A to be $9,120.00.

50.I shall allow the claim in the sum of $9,120.00 as suggested.

Conclusion

51.Mr. Man had received advance payment and/or periodic payment in the total sum of $93,535.02. see: p.157 - p. 169, Bundle D.

52.I find the total compensation payable to Mr. Man is:

53.The above sum shall carry interest at half judgment rate from the date of Accident until date of judgment, and shall carry at judgment rate until full payment.

Order

54.Judgment is entered against the 2nd Respondent in the sum of  $34,024.34 with interest as aforesaid.

55.I allow Mr. Man’s appeal under section 18 of Ordinance regarding the period of absence from duty as a result of the injury. I shall vary the period “from 19 May 2008 to 10 March 2009” to “from 19 May 2008 to 17 March 2009”.

56.I also order costs to Mr. Man, to be taxed if not agreed.

Mr. Edwin So of Messrs. Lee & So for the Applicant

2^nd Respondent in liquidation absent