SHEN HUAZHU v. ZHU ZE ZHONG T/A TAK BO CONSTRUCTION MATERIAL AND ANOTHER

DCEC 725/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 725 OF 2014

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IN THE MATTER OF AN APPLICATION BETWEEN

SHEN HUAZHU Applicant

and

ZHU ZE ZHONG trading as
TAK BO CONSTRUCTION MATERIAL
1st Respondent
LAM LUNG HING trading as
LUNG FAT DECORATION & ENG CO
2nd Respondent
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Before: Deputy District Judge Ludwig Ng in Court

Date of Hearing: 11 June 2015
Date of Judgment: 26 June 2015

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JUDGMENT

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Introduction

1. The applicant was working at a renovation site at 3/F, Starlight House, Leighton Road, Causeway Bay, Hong Kong at the time of theaccident. Her eye was hit by an object when her co-worker was drilling off floor tiles, thereby sustaining serious injury to herleft eye. The 1st respondent has also confirmed the accident on various occasions:-

(i) The 1st respondent has submitted a Notice of Accident to the Labour Department dated 29 March 2013, which was 2 weeks after the accidenton 15 March 2013, confirming the accident at work as well as the circumstances of the accident;

(ii) The 1st respondent has submitted an Information Amendment Sheet in April 2013 giving details of the 2nd respondent. It again confirmed the circumstances of the applicant’s accident under Part D (1);

(iii) On 9 May 2013, the 1st respondent submitted a further Information Amendment Sheet providing the contact numbers of the 2nd respondent. He also confirmed the date of the accident on 15 March 2013 and stated that no employees compensation insurance wastaken out;

(iv) The 1st respondent was prosecuted by the Labour Department for failing to take out employees’ compensation insurance in respect of theapplicant’s accident. The 1st respondent had agreed to the Brief Facts of the prosecution case which included the circumstances of the accident.

2. Interlocutory judgment on liability was entered against the 1st respondent on 9th January 2015.

3. The 2nd respondent was under legal advice when the Answer was filed, which was accompanied by his statement of truth. The 2nd respondent admitted that he was the principal contractor of the renovation works and the 1st respondent was his subcontractor. He has also admitted that the applicant was employed by the 1st respondent at the material time. There is no rebuttal evidence against the applicant’s case and therefore liability has been establishedagainst the 2nd respondent.

4. Notice under section 24(6) of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) has been given to the 2ndrespondent before commencing this Application.

5. I am satisfied that on the evidence liability against the 2ndrespondent has been established and I enter judgment against the 2nd respondent with costs.

Average pre-accident earnings of the applicant

6. The applicant used to work as a casual construction site worker prior to the accident. She worked for different employers includingthe applicant and was able to work on average 24-26 days a month. It is not disputed by the 1st and 2nd respondents, and in fact admitted by the 1st respondent as submitted under the Notice of Accident and the Brief Facts that the applicant’s daily wages were HK$600.00.

7. In the absence of any evidence from the 1st and 2nd respondents regarding the monthly earnings of their employees, the latter part of Section 11(2) of the ECO applies in the calculationof the pre-accident average monthly earnings of the applicant (see黎祥礦 訴 盧景森 (CACV 202/2007), 錢偉業 訴 可生設計工程有限公司 (DCEC 1146/2009) and Ngo Chun Fung v Cheung Yiu Chung trading as Gun Kee Scaffolding works and Another (DCEC 1069/2012).

8. The applicant used to earn no less than HK$600.00 x 24 days or HK$14,400.00 per month. The court will adopt the said sum of HK$14,400.00as her pre-accident earnings.

Section 9 compensation

9. The applicant was 34 years old at the time of the accident. The applicant accepts the assessment of 47.5% as assessed by the MedicalAssessment Board under the Certificate of Assessment. Pursuant to Section 7 of the ECO, her compensation under Section 9 amountsto HK$14,400.00 x 96 x 47.5% or HK$656,640.00.

Section 10 compensation

10. The applicant, notwithstanding the serious injuries to her eye, was only granted intermittent sick leave from 16 March 2013 to 21November 2014 for a total of 219 days which was endorsed by the Medical Assessment Board. Section 10 compensation amounts to HK$14,400.00x 219 / 24 x 4/5 or HK$105,120.00.

Section 10A compensation

11. The applicant has incurred HK$4,310.00 as medical expenses.

Advanced payments

12. Notwithstanding that the 1st respondent was absent throughout the proceedings, the applicant has volunteered and confirmed that she has received a total sum ofHK$56,000.00 from the 1st respondent after the accident. During her evidence in chief, the applicant confirmed that 2 out of the 5 cheques given by the 1st respondent were bounced. Yet, the applicant also confirmed that the sum of HK$16,000.00 under the 2 bounced cheques were given backto her by the 1st respondent in cash. The applicant has further confirmed that after 19 September 2013, she was not granted further sick leave until18th October 2013 and thereafter intermittently. Nevertheless, she volunteered that the 1st respondent has continued to pay her HK$8,000.00 each for the following 2 months as she had been unable to resume work by that timenotwithstanding that there was no sick leave granted to her.

13. Upon clarification, the applicant confirmed that the said amount of HK$16,000.00 was paid to her by the 1st respondent without any reservation or condition that the same has to be deducted from the compensation payable. The applicant hasalso given evidence that she has not worked for the 1st respondent or any other employer during this period. As such, the further sum of advanced payments where the applicant is requiredto give credit to in this matter would be the 9 days’ sick leave during 20 September 2013 to 15 November 2013 in the sum of HK$16,000.00/ 60 days x 9 days or HK$2,400.00. The balance sum of HK$13,600.00 should be regarded as ex gratia payment made by the 1st respondent to the applicant and the same is not required to be deducted from the compensation payable to the applicant.

14. The total amount of advanced payments to be deducted is HK$40,000.00 + HK$2,400.00 or HK$42,400.00.

Summary of the compensation payable

15. The following is a summary of the net compensation payable to the applicant:-

HK$
Section 9 656,640.00
Section 10 105,120.00
Section 10A 4,310.00
766,070.00
Less advanced payments received (42,400.00)
Total 723,670.00

Interest

16. The applicant is entitled to interest on the compensation payable at half judgment rate at 4% p.a. from the date of the accidentup to the date of judgment and thereafter at full judgment rate until date of payment.

Costs

17. The costs of the whole action be paid by the 1st and 2nd respondents to be taxed if not agreed, and the applicant’s own costs be taxed in accordance with Legal Aid Regulations.

( Ludwig Ng )
Deputy District Judge

Mr Ivan Yeung, of Rita Law & Co, assigned by the Director of Legal Aid, for the applicant

The 1st and 2nd respondents were not represented and did not appear