Fakhar Abbas v. Riasat Ali

DCEC 862/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 862 OF 2011

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IN THE MATTER OF AN APPLICATION BETWEEN

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REASONS FOR JUDGMENT

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Introduction

1.The applicant was employed by the respondent as a labourer and he suffered personal injuries in an accident when he was working.  Therefore, he claimed compensation against the respondent under sections 9, 10 and 10A of the Employees Compensation Ordinance, Cap 282.

2.On 9 November 2012, judgment on liability was entered for the applicant against the respondent pursuant to the order of His Honour Judge Poon. Therefore, the matter came before me for assessment of compensation only.

3.On 5 March 2013, in the absence of the respondent I awarded the applicant compensation in the amount of $18,630 with interest and costs and said that the reasons would be given in due course.  This I now do.

The accident

4.At the time of the accident, ie, at about 3 am on 28 April 2010, the applicant was instructed to clean up metal frames at Ground Floor, 105 Temple Street, Kowloon, Hong Kong and to carry the metal frames and other equipment with a trolley to the godown.  While the applicant was doing the work, his trolley hit some ladders.  The ladders and a metal sheet fell down and crushed his left index finger and caused him injuries.

The proceedings

5.The respondent did not turn up for the hearing before me and there was no legal representative or anyone appearing on his behalf.  In fact, the respondent had been absent from pre-trial proceedings throughout.  He had not filed any documents.  Papers of the case were served on him by way of substituted service pursuant to the order of Judge Poon made on 30 July 2012.

6.I am satisfied that the respondent had been voluntarily absent and that it is proper to proceed with the matter in his absence.

The award

7.The applicant was aged 20 years at the time of the accident and is now aged 23.  Prior to the accident, the applicant earned about $9,000 a month.  As a result of the accident, the applicant was granted 98 days sick leave.  He was assessed by the Employee’s Compensation (Ordinary Assessment) Board to have suffered a permanent 2.5% loss of earning capacity.  The assessment, which had not been challenged, was accepted by the applicant.  There were no special circumstances which would affect the level of compensation in this case.  The applicant incurred medical expenses in the amount of $510.  

8.The applicant said that he had received “periodical payment” in the total sum of $27,000 from the respondent.  Mr Massie for the applicant, however, invited me to deduct this payment from the compensation.   Actually, no order had been made under s 10 of the Employees’ Compensation Ordinance for payment of any money.  Therefore, I am satisfied that the $27,000 was not in fact “periodical payment” in the sense of s 10 and therefore can properly be deducted from the compensation.

9.Based on the evidence before me and having heard Mr Massie, I award the following to the applicant:

(i)      Compensation

Section 9 (permanent partial incapacity):
$9,000 x 2.5% x 96	$21,600
Section 10 (temporary incapacity):
$9,000 x 98/30 x 4/5	$23,520
Section 10A (medical expenses):	$510
Less payment already received:	($27,000)
Total:	$18,630

(ii)   Interest on the compensation at half of the judgment rate from the date of the accident to the date of order and after that at the judgment rate; and

(iii)  Costs to the applicant, to be taxed if not agreed.  The applicant’s own costs to be taxed in accordance with legal aid regulations. 

Mr John Massie of Massie & Clement, assigned by Director of Legal Aid, for the applicant

The respondent was not represented and did not appear