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Lee Kin Chuen v 王偉

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date28 April 2015
Year2015
Judgement NumberDCEC970/2014
Subject MatterEmployee"s Compensation Case
CourtDistrict Court (Hong Kong)
DCEC970/2014 LEE KIN CHUEN v. 王偉

DCEC 970/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 970 OF 2014

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BETWEEN
LEE KIN CHUEN（李見全） Applicant

and
王偉 Respondent

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Before: Deputy District Judge Maurice Chan in Court

Date of Hearing: 25 February 2015

Date of Assessment of Compensation: 28 April 2015

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ASSESSMENT OF COMPENSATION

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1. This is an assessment application of the applicant, Mr Lee Kin Chuen (“Mr Lee”), in an employees’ compensation claim against the respondent, 王偉, (“Mr Wong”). Interlocutory judgment on liability has already been obtained on 19 December 2014 with an order for an assessment of compensation. Mr Lee claims compensations against Mr Wong under sections 9, 10 and 10A of the Employees Compensation Ordinance (Cap 282) (“Ordinance”).

2. On the day of the trial for assessment, Mr Wong was absent. As he had all along been absent for all interlocutory hearings, Mr Cheng, counsel for Mr Lee, sought immediately to proceed with the assessment in Mr Wong’s absence. I was satisfied from a perusal of the court file, that Mr Wong had been given notice of the hearing, and from the affidavit of service that the hearing bundles, the opening submissions, and a supplemental witness statement of Mr Lee had all been served on Mr Wong, and that the hearing could proceed in his absence without further deferment. There was first a preliminary matter of an application on Mr Lee’s part for leave to file his supplemental witness statement regarding his income in a period of 12 months preceding the accident. I noticed from the court file, that it had already been filed on 17 February 2014, and I granted formal leave to do so.

The accident

3. Mr Lee was born on 8 March 1957. According to the evidence before me, at around the time of the accident, he was an electrician with around 30 years of experience. He has a cousin who is also an experienced electrician, Mr Chiu Mun Hung (“Mr Chiu”). In early June 2012, upon Mr Chiu introducing him to Mr Wong for employment, he was assigned to carry out wiring works at 9/F, International Industrial Building, No 175 Hoi Bun Road, Kwun Tong (“Premises”). Although Mr Lee suggests in his evidence that his daily wages were $950, it is not clear as to whether this rate was ever agreed to by Mr Wong.

4. In the afternoon of 10 June 2012, Mr Lee and Mr Chiu were installing electrical wires in the Premises under Mr Wong’s supervision. The work was carried out at a lights trough at a height of about 7 to 8 feet from the ground. To carry out the installation, Mr Lee had to be positioned at a height on an A-ladder. The work involved he and Mr Chiu being at the respective ends of the trough; Mr Chiu fed, and Mr Lee pulled electrical wires through a plastic pipe inside the trough, using a string tied to the ends of the wires. Whilst Mr Lee was pulling the string, it suddenly broke, and Mr Lee fell from the ladder, landing on his back, and on the back of his skull, the occiput. As a result, Mr Lee was sent to Union Christian Hospital. His left wrist was found to be deformed with tenderness; he also suffered back pain with tenderness of his left pelvis, ie his left posterior iliac wing; it was also confirmed that he had a fracture at his left wrist, his distal radius.

The law

5. A Certificate of Review of Assessment (Form 9) was issued on 15 August 2013, with loss of earning capacity being assessed at 6.5% by the Employees’ Compensation (Ordinary Assessment) Board. His absence from work was certified as necessary for 9 periods between 10 June 2012 to 25 April 2013, totalling 306 days. There has not been any section 18 appeal against the certificate.

6. In the absence of any appeal, the content of the certificate is conclusive evidence of Mr Lee’s loss of earning capacity and the length of sick leave. See section 16H of the Ordinance, and Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413, per Le Pichon J, at 419F-I.

7. The approach in calculating an employee’s earnings under the Ordinance is set out in Section 11 of the Ordinance. I interpret that section in a manner as adopted by the Court of Appeal in Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643, and Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337. From these 2 cases, the relevant law on monthly wages can be summarized as follows:-

(1) For the purposes of the Ordinance, the monthly earnings of an employee employed by his employer at the time of the accident shall be whichever is the higher of the following:-

(a) the earnings for the month immediately preceding the date of the accident, under section 11(1)(a); or

(b) the average monthly earnings for the preceding 12 months, under the first limb of section 11(1)(b); or

(c) the average monthly earnings for any preceding lesser period, where it is still practicable to compute an employee’s monthly earnings, under the second limb of section 11(1(b), as per Andrew Chung J and Yeung JA in Or Wing Ming, in paras 4 to 7, and 38 to 47;

(2) Where by reason of the shortness of duration of employment, its casual nature, or the terms of employment, it is impracticable to compute an employee’s monthly earnings with his employer, regard may be had to the average monthly amount which, during the preceding 12 months, was being earned by:-

(a) a person of similar earning capacity in the same grade, employed at the same work by the same employer, under the first limb of section 11(2); or

(b) if there is no such person, by a person of similar earning capacity in the same grade, employed in the same class of employment in the same district, under the second limb of section 11(2).

The applicant’s income

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