Ye Dade v. Ngai Chin Pang t/a Chin Wan Transport

DCEC 1498/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1498 OF 2014
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ASSESSMENT OF COMPENSATION

1.The applicant was injured in the course of work for the respondent on 2 January 2014 and filed his claim herein pursuant to the Employees’ Compensation Ordinance, Cap.282. The respondent having failed to enter appearance, judgment on liability was entered on 27 March 2015 for compensation to be assessed, which now comes before me.

2.The respondent was absent today.   Being satisfied that service of all relevant documents including the notice of today’s hearing have been effected on the respondent at his usual or last known address, I proceeded with assessment of the compensation due from him to the applicant.

INJURIES

3.On 2 January 2014, the applicant was working on a truck parked outside an industrial building on Shing Yip Street, Kwun Tong.  He was tidying up goods placed inside the compartment section of the truck while standing on the elevated platform at the back of the truck with his right foot placed in the gap between the compartment section and the elevated platform.  Without warning the applicant, the driver of the truck pressed the button to raise the elevated platform and the applicant’s right big toe was crushed as the gap between the compartment section and the elevated platform closed. 

4.The applicant gave testimony in court and adopted his witness statement as evidence in chief.  I accept the same as a true account of how his injury came about.

5.After the accident, the applicant attended the accident & emergency department of United Christian Hospital. X ray having revealed fracture of the distal phalanx of his right big toe, the applicant was referred to the orthopaedic department for further treatment.  He was fitted with a right forefoot splint for wound protection upon discharge the next day. Necrotic changes obliged his readmission on 26 January 2014 for surgical debridement before his discharge the next day.  Meanwhile, he attended an outpatient clinic for wound dressing once or twice a month until 26 May 2014. 

6.Sick leave was granted for the period between 2 January 2014 and 10 June 2014, totalling 160 days.

LOSS OF EARNING CAPACITY

7.The diagnosis and treatment mentioned above is evidenced by medical reports from the Hospital Authority and the sick leave period is supported by medical certificates.    

8.For the injury to the applicant as aforesaid, the Employees’ Compensation (Ordinary Assessment) Board issued a certificate of assessment on 24 December 2014 to certify that the sick leave period was attributable to the injury at work and that the applicant suffers a 2% loss of earning capacity, which the applicant accepts as the basis for assessment of compensation.

SECTION 9 COMPENSATION

9.According to the applicant, he was employed by the respondent as a delivery worker on 6 September 2013.  He was not happy with certain extra duties assigned to him and resigned 10 days later.  At the respondent’s instance, the applicant was re-employed by the respondent in October 2013 as delivery worker without the extra duties and was paid a daily wage of HK$400 and overtime payment at HK $30 per hour, working 6 days a week from 9 a.m. to 7 p.m.  On average he worked 20 days each month and had to work overtime for at least 3 hours each day.  His average monthly income therefore came to HK$9,800.  The respondent paid his wages in cash without issuing any payslips.  I see no reason not to accept his evidence.

10.The applicant was born on 21 May 1973 and was aged 40 at the time of the accident.  The multiplier for assessment would be 72 months.  The compensation due under section 9 should be HK$9,800 x 72 months x 2% = HK$14,112.

SECTION 10 COMPENSATION

11.The sick leave period between 2 January 2014 and 10 June 2014 (160 days) was certified by the Employees’ Compensation (Ordinary Assessment) Board.  According to the applicant’s reckoning, with which I agree, the compensation due under section 10 should be [HK$9,800 x 30/31 x 4/5] + [HK$9,800 x 4 x 4/5] + [HK$9,800 x 10/30 x 4/5] = HK$41,560.43.

SECTION 10A COMPENSATION

12.The applicant incurred a total sum of HK$598 by way medical expenses as evidenced by medical receipts.

SUMMARY

13.The total compensation due to the applicant is therefore assessed at HK$56, 270.43 (HK$14,112 + HK$41,560.43 + HK$598).

ORDER

14.I order the respondent to pay to the applicant compensation in the sum of HK$56,270.43 together with interest thereon at half judgment rate from the date of accident (2 January 2014) until today and thereafter at judgment rate until full payment.  Costs of these assessment proceedings, including any costs reserved, be to the applicant to be taxed if not agreed and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Gary Hau of Messrs V. Hau & Chow, solicitors for the applicant

The respondent in person, absent