Chao Ming Fau v. Hang Cheong Design & Decoration Engineering Co Ltd

DCEC 568/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 568 OF 2014

------------------------

BETWEEN

------------------------

________________________

ASSESSMENT OF COMPENSATION

________________________

1.The applicant claims against the respondent for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”) due to an accident on 20 April 2012 while working for the respondent at Rooms 7-10, 16/F, Prosperity Place, 6 Shing Yip Street, Kwun Tong, Kowloon.

2.The respondent was absent throughout the proceedings.  Judgment in default on liability was entered against the respondent on 14 November 2014.

The accident

3.On 20 April 2012, when the applicant was conducting wiring work for a lamp tray which was around 2.5m above ground, he stood on a wooden folding ladder. Suddenly, he had an electric shock in his right hand and as a result, he fell on the ground.

Injuries and treatment

4.He was taken to the emergency department of United Christian Hospital. X-ray showed that he suffered from calcaneum fracture at his left ankle. He was then admitted to the United Christian Hospital and was discharged on 10 May 2012.

5.On 23 May 2012, he was re-admitted for wound dehiscience and discharged on 12 June 2012. Removal of metal implant in the applicant’s left ankle and the excision of bone overgrowth were done on 13 May 2013. He was admitted from 13 May 2013 to 16 May 2013. He received physiotherapy and occupational therapy to aid his recovery.

6.The Form 7 assessed the applicant’s loss of earning capacity at 3.5%. The Form 9 revised the assessment to 4%. The Medical Assessment Board certified intermittent sick leave for a total of 680 days.

Applicant’s evidence

7.The applicant was the only witness giving evidence in court for this assessment of compensation. He said that he was paid at a daily wages of $800. He started working for the respondent since 16 March 2012 until accident happened on 20 April 2012. For the whole period of 36 days, he worked for the respondent for a total of 31 days.

Monthly income

8.Having heard the evidence, I accept the daily wages of the applicant was $800.

9.Mr Cheng, counsel for the applicant, submitted that as the applicant had not been employed for a full calendar month before the accident happened, section 11(1)(a) of the Ordinance is not applicable. He referred me to the decision of Lau Yiu Yee v Tung Lee Engineering Co (a firm) [2003] 1 HKC 43. Mr Cheng submitted that section 11(1)(b) of the Ordinance is applicable. Accordingly, he submitted that the applicant had worked for 25.83 days (31/36 x 30 days) on a monthly basis. Mr Cheng rounded it up to a monthly earnings of $20,640.

10.I agree with the submission of Mr Cheng. In the circumstance, I find that the applicant’s monthly earning for the purpose of this assessment should be $20,640.

Section 9

11.The applicant was 36 years of age at the time of the accident. Pursuant to section 9 of the Ordinance, the sum payable to him is :

$20,640 x 96 x 4% = $79,257.60

Section 10

12.The applicant was allowed sick leave for 680 days.  Pursuant to section 10 of the Ordinance, he is entitled to four-fifth of his salary during sick leave. The sum payable to him is :

$20,640 x 4/5 x 680/30= $374,272

Section 10A

13.The total medical expenses incurred were $13,746.00. Mr Cheng referred me to the Third Schedule to the Ordinance and pointed out that the medical expenses payable by the respondent should be limited to $200 per day for either in-patient treatment or out-patient treatment, and to $280 per day if the applicant received both in-patient and out-patient treatment on the same day.

14.After calculation, the total medical expenses that could be claimed pursuant to section 10A of the Ordinance would be $13,496.

Summary

15.In the circumstance, the applicant is entitled to :

Under section 9	$79,257.60
Under section 10	$374,272.00
Under section 10A	$13,496.00 ____________
Total:	$467,025.60 =========

16.The respondent had paid the applicant a total sum of $120,000 during the sick leave period. After taking that into account, compensation is assessed at a total sum of $347,025.60. 

Order

17.The respondent shall pay $347,025.60 to the applicant with interest thereon at half judgment rate from the date of the accident to the date of this assessment and thereafter at judgment rate until payment in full.

18.Mr Cheng asked me to assess the costs of the whole proceedings summarily. However, in this case, judgment on liability was entered on 14 November 2014 with the following order :-

“Costs of the Application incurred on liability up to and including the date of this hearing be to the Applicant against the Respondent in any event, to be taxed if not agreed.”

19.That order did not include any direction for costs to be taxed summarily. In the circumstance, I consider it more appropriate to deal with costs by way of taxation. The same practice was adopted by Master R Lai in Richtop Investments Limited v Poon Keung Ki, DCCJ 667/2013 (unreported, 12 March 2014).

20.I order that on nisi basis, the respondent do pay costs (include any costs reserved) to the applicant with certificate for counsel, to be taxed if not agreed.  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations. In the absence of application to vary by Summons within 14 days, the costs order shall become absolute.

Mr Alfred C P Cheng, instructed by Legal Aid Department for the applicant

The respondent was not represented and did not appear