Choi Sun Ming v. Creative Interior Construction Ltd

DCEC 783/2021

[2022] HKDC 987

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 783 OF 2021

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IN THE MATTER OF AN APPLICATION BETWEEN

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J U D G M E N T

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INTRODUCTION

1.This is the trial for assessment of compensation.

PROCEDURAL HISTORY

2.By the order of Her Honour Judge Levy dated 10 December 2021, interlocutory judgment on liability was entered against the respondent.

3.By the order of Her Honour Judge Levy dated 27 April 2022 (“the order”), the trial for assessment of compensation was fixed for 2 September 2022 at 9.30 am in Court No 30.

NOTICE OF TRIAL

4.A sealed copy of the order was served on the respondent on 16 May 2022 to Ground Floor, No 29 Wan Fung Street, Wong Tai Sin, Kowloon, Hong Kong, which is the address for service of the respondent as reported by an employee of the respondent at the hearing on 10 December 2021.

5.A notice of trial dated 13 May 2022 was sent to the respondent’s registered office by the court.

6.I am satisfied that the respondent has had due notice of the trial but has chosen not to appear.

ASSESSMENT OF COMPENSATION

Section 9

7.The applicant was a carpentry worker.  He was employed by the respondent between October 2018 and January 2019.  He was again employed by the respondent on 19 October 2019 at the daily wage of $1,400.  He was injured on 23 October 2019.

8.The applicant sought to rely on a list of earnings annexed to an undated list of documents of the respondent.  The said document was in fact not filed with court.  It is therefore inadmissible and cannot be relied on by the applicant.

9.Section 11(2)  of the Employees’ Compensation Ordinance (“ECO”)  provides:-

“Where by reason of the shortness of the time during which an employee has been in employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

10.According to the applicant, his working days per month were 22 days.  His monthly earnings should therefore be $30,800 ($1,400 x 22 days).

11.I accept that the applicant would work for 22 days per month at the daily wage of $1,400.  His monthly earnings should be $30,800.

12.The applicant was 58 years old at the time of the accident.  Under s7(1)(a)  of ECO, the multiplier is 48.

13.By a Certificate of Review of Assessment issued by the Employees’ Compensation (Ordinary Assessment)  Board (“the Board”), the loss of earning capacity permanently caused by the injury was assessed at 3%.

14.Accordingly, the compensation under s9 of ECO is $44,352 ($30,800 x 48 months x 3%).

Section 10

15.The Board certified the periods of absence from duty as a result of the injury at 335 days.

16.Accordingly, the compensation under s10 of ECO is 275,146.67 ($30,800 x 4/5 x 335days/30).

Section 10A

17.The applicant has incurred $2,764 on medical expenses.

PARTIAL PAYMENT

18.The applicant has received a total of $189,280 from the respondent.

CONCLUSION AND AWARD

19.Accordingly, I find that the applicant is entitled to compensation in the sum of $132,982.67 which is made up of the following:

Section 9 compensation	$44,352.00
Section 10 compensation	$275,146.67
Section 10A compensation	$2,764.00
Total:	$322,262.67
Less: Partial Payment	$189,280.00
Net compensation	$132,982.67

INTEREST

20.The applicant is entitled to interest at half judgment rate from the date of the accident (ie 23 October 2019)  to the date of judgment and thereafter at judgment rate until the date of payment.

COSTS

21.Costs to follow the event.  The respondent shall pay the applicant the costs of the assessment of compensation.

22.By summary assessment, I order the respondent to pay the applicant the costs of the assessment of compensation in the sum of $100,000.

Ms Ho Wing Tung, Emily, of V Hau & Chow, for the applicant

The respondent was not represented and did not appear