Lam Wing Ching v. Jun Cheng Logistics Ltd and Another

DCEC 527/2020

[2021] HKDC 1407

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 527 OF 2020

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Before: Deputy District Judge Calvin Cheuk in Court

Date of Hearing: 9 November 2021

Date of Judgment: 9 November 2021

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JUDGMENT

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Introduction

1.On 23 April 2018, the Applicant, Mr Lam Wing Ching (the “Applicant”) suffered personal injury by accident arising out of and in the course of employment.

2.On 17 April 2020, the Applicant commenced these proceedings for employees’ compensation against the 1^st and 2^nd Respondents pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (the “Ordinance”).

3.The Respondents did not appear in these proceedings.  On 16 April 2021, an interlocutory judgment on liability was entered against the 1^st and 2^nd Respondents, leaving the amount of compensation to be assessed.

4.The Applicant was represented by Ms Ho in the compensation assessment hearing.

Factual background

5.At the material time, the Applicant was employed by the 1^st and/or the 2^nd Respondents as a cross-border container truck driver.  On or about 2 April 2018, the Applicant was in the course of his employment and was assigned to drive the 1^st Respondent's truck (the “Truck”) which was parked at Shui Chuen O Estate, To Shek Street, Sha Tin, New Territories, Hong Kong.  At about 7:20 am, while the Applicant was standing on a road guardrail to adjust the rearview mirror of the Truck before setting off, he fell from the road guardrail onto the ground.  The Applicant sustained bodily injuries as a result.

6.After the accident, the Applicant was taken to the Accident & Emergency Department of Prince of Wales Hospital (“PWH”) by ambulance.

7.CT thorax and abdomen showed communicated fracture of the left 3^rd to 5^th ribs at the anterior and lateral with flail segment formation, associated with linear fracture of sternum and right 4^th to 6^th ribs.  There was a small amount of extrapleural haematoma at the site.  The Applicant was admitted to the Department of Cardiothoracic Surgery for further treatment.

8.The Applicant was treated conservatively with medication for pain control.  Chest physiotherapy was done and oxygen supplement was weaned off.  He was subsequently discharged on 28 April 2018.

9.The Applicant attended follow-up treatments at the out-patient clinic of the Department of Cardiothoracic Surgery of PWH.  During follow-up consultations, the Applicant still suffered from left chest wall pain, and left upper arm weakness and pain during anterior flexion of arm.  He was also referred to physiotherapist, and occupational therapist for work assessment.

10.The Applicant attended the Physiotherapy Department of PWH since 14 August 2018.  In the initial assessment, he reported to have stretching pain over left posterior and upper arm.  His range and strength of left shoulder was limited by pain.  Physiotherapy including electrophysical therapy, manual therapy and exercise therapy was given.  After about 4 sessions of treatment, the pain and range of movement over his left shoulder improved.

11.A work rehabilitation assessment by the Occupational therapy Department of PWH was done on 31 August 2020.  On examination, there was still moderate chest pain.  The Applicant’s tolerance and strength did not match with the job demand of a truck driver.  He was recommended to change job.

12.As a result of the accident, the Applicant was granted sick leave from 23 April 2018 to 4 January 2019 and from 14 November 2019 to 15 November 2019.  At present, the Applicant still suffers from residual pain over his chest and ribs.

13.The Applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”)on 16 December 2020, following which a Certificate of Assessment  (Form 7) was issued on 30 December 2020.

14.The Form 7 certified that the Applicant sustained rib fracture resulting in chest pain.  The loss of earning capacity was assessed to be 3%.  Sick leave from 23 April 2018 to 4 January 2019 and from 14 November 2019 to 15 November 2019 totalling 259 days was certified.

15.There is no appeal by the Applicant or the Respondents against the Form 7.  The Form 7 is therefore binding.  See: Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413.

The Applicant’s earnings

16.The Applicant's case is that he was employed by the 1^st and/or the 2^nd Respondent since December 2016.

17.There was no basic salary and his earnings were calculated based on the number of round trips he made between Hong Kong and Shenzhen.  Basically, his earnings per each round trip were HK$650.  If the Applicant was required to drive flat rack track carrying large items such as machineries, then the earnings per each round trip would range from HK$800 to HK$1,000.  In addition, the Applicant would be given overtime payment and payment for additional loads, and telephone allowance of HK$300.

18.According to the available records of the Applicant,his earnings from August 2017 to April 2018 (up to 22 April 2018, ie the date of the accident) were as follows:-

Month	Earnings
August 2017	$25,200
September 2017	$29,300 (inclusive of telephone allowance of $300)
October 2017	$41,475 (inclusive of telephone allowance of $300)
November 2017	$36,200 (inclusive of telephone allowance of $300)
December 2017	$34,925 (inclusive of telephone allowance of $300)
January 2018	Not less than $20,450 (incomplete record)
February 2018	$19,150 (inclusive of telephone allowance of $300)
March 2018	$25,900 (inclusive of telephone allowance of $300)
April 2018 (up to 22 April 2018)	$24,185 (inclusive of telephone allowance of$300)

19.The Respondents did not file any List of Earnings despite the Order of the Court.

20.The Applicant invites the Court to adopt the Applicant's average earnings for the 8 months immediately preceding the accident (August 2017 to March 2018), ie not less than HK$29,075, as the earnings for the purpose of s 11 of Ordinance.  I agree and will adopt the sum of HK$29,075 for such purpose.  In fact, according to the Applicant’s oral evidence, his average earnings in the 12 months before the accident was about HK$30,000.

Compensation under s 9 of the Ordinance

21.The Applicant was born on 24 August 1955 and was aged 62 at time of accident.  The appropriate multiplier is therefore 48 months (pursuant to s 7(l)(c) of the Ordinance).

22.For the purpose of s 9, the statutory maximum of HK$28,360 should apply (pursuant to s 7(1)(c) of the Ordinance).

23.The award under s 9 of the Ordinance should therefore be HK$28,360 x 48 months x 3% = HK$40,838.40.

Compensation under s 10 of the Ordinance

24.Sick leave from 23 April 2018 to 4 January 2019 and from 14 November 2019 to 15 November 2019 totalling 259 days was certified in the Form 7.

25.The appropriate award under s 10(1) of the Ordinance should therefore be: HK$29,075 X 259/30 X 4/5 = HK$200,811.33.

Compensation under s l0A of the Ordinance

26.According to the available receipts and records as clarified by Ms Ho and the Applicant, the Applicant’s incurred medical expenses in the sum of HK$1,270.

Amount received from the Respondents

27.Ms Ho and the Applicant confirmed that HK$780 was received from the Respondents.

Conclusion

28.For the reasons above, the amount of compensation liable by the 1^st and 2^nd Respondents is assessed to be: HK$40,838.40 + HK$200,811.33 + HK$1,270 - HK$780 = HK$242,139.73.

29.I further order that interest on the said sum shall beat half the judgment rate from date of accident (ie 23 April 2018) to date of this judgment and thereafter at judgment rate until payment in full.

30.Costs of the Application be borne by the Respondents (to be taxed if not agreed).  The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

31.Lastly, it remains for me to thank Ms Ho for her assistance.

Ms Ho Lai Shan of Szwina Pang, Edward Li & Co, assigned by the Director of Legal Aid, for the applicant

The 1^st and 2^nd respondents acting in person, being absent