Tsui Ho Man v. Huali Auto Parts Trading Ltd

DCEC 1388/2015

[2020] HKDC 464

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1388 OF 2015

________________________

________________________

________________________

____________________________

ASSESSMENT OF COMPENSATION

____________________________

1.This is an assessment of employees’ compensation. Judgment has been entered on 22 October 2016. The Respondent, acting in person, did not attend the hearing.

2.On 2 April 2015, the Applicant was injured in left hand by a nail gun during work. Form 9 (P.88 of the Trial Bundle) stated that he suffered from left hand injury resulting in left hand pain and numbness, and the permanent loss of earning capacity as a result of the injury was 1%. The Applicant has confirmed that he is not appealing against such findings.

3.The employment contract between the Applicant and the Respondent dated 30 August 2014 (P. 77-78 of the Trial Bundle) shows that the Applicant was earning a monthly salary of HK$21,000 plus HK$1,000 as MPF before the accident. Thus, the court is satisfied that his total monthly income was HK$22,000.

Quantum

Compensation under Section 9

4.The Applicant was born on 11 December 1984 so he was under the age of 40 at the time of injury. Thus, the compensation under this head should be:

HK$22,000 x 96 x 1% = HK$21,120

Compensation under Section 10

5.According to the Applicant’s witness statement (P. 56-57 of the Trial Bundle), he has sick leave certificates totally 417 days. In fact, he has disclosed a further sick leave certificate for 16 March 2018 so it should be 418 days. Upon review of these certificates, the court notes that the vast majority of these were for “left hand injury”, “left upper limb pain”, “left hand pain”. “left hand injury with residual pain” etc. which were supported by the medical reports resulting from the injury. However, there were 5 single day sick leave certificates (dated 9 March 2017, 23 March 2017, 13 April 2017, 24 November 2017 and 16 March 2018) (P. 163-167 of the Trial Bundle) which simply stated “medical condition” as the condition the Applicant was suffering from.

6.The Applicant gave evidence that these were given by Castle Peak Hospital for “psychological stress”. There is no medical report that supports any such “medical condition” (or indeed any “psychological stress” etc.) results from the injury according to section 10.

7.As such, the appropriate period of absence from duty should be 418 – 5 = 413 days. The compensation should be:

HK$22,000 x 413/30 x 4/5 = HK$242,293.33

8.According to the Applicant’s skeleton submission, he has received HK$17,600 as one month’s worth of periodic payment from the Respondent. Thus the award under this head should be:

HK$242,293.33 – 17,600 = HK$224,693.33

Compensation under Section 10A

9.The Applicant claims HK$24,014 as the medical expenses for his treatment of the injury.

10.The court would deduct the medical expenses of the 5 attendances at Castle Peak Hospital (for about HK$100 for each attendance, therefore a total of HK$500) and also the HK$262 already paid by the Respondent (according to the Applicant’s Skeleton Submission).

11.Thus the award under this head should be HK$24,014 - 500 – 262 = HK$23,252

Summary

12.The Applicant is entitled for a total compensation of HK$21,120 + 224,693.33 + 23,252 = HK$269,065.33

13.There be interest on the compensation at half judgment rate from the date of the injury to the date of judgment and thereafter at full judgment rate until full payment.

14.The Respondent shall pay the Applicant’s costs of this action with the Applicant’s own costs be taxed in accordance with the Legal Aid Regulation.

Miss S S Yuen, of Francis Kong & Co, for the applicant

The respondent was unrepresented and did not appear