Wong Pok Man v. Spe Supply Chain Ltd

DCEC 728/2021

[2022] HKDC 1539

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 728 OF 2021

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Before:  Deputy District Judge S. P. Yip in Court

Date of Hearing:  14 December 2022

Dates of Closing Submission:  9 December 2022 (the Applicant)

Date of Judgment:  14 December 2022

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J U D G M E N T

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Introduction

1.This is a trial of employees’ compensation claim with respect to a work accident met by the applicant on 12 April 2019.

2.The respondent filed a notice to act in person on 12 May 2022 and thereafter the respondent has been absent, non-responsive and also absent for today’s trial. The trial proceeds in the absence of the respondent as I am satisfied that the order for setting down dated 24 June 2022 and the notice of trial dated 12 July 2022 have been properly served by the applicant on the respondent.

The Accident

3.The applicant was employed by the respondent as a general worker since 1 April 2019.

4.It is the applicant’s case that on the date of accident, at about 10 pm, the applicant was working at the car park outside the respondent’s office at Unit 3, 1^st Floor, Topsail Plaza, No 11 On Sum Street, Shek Mun. The applicant was manually adjusting the width of the forks of a forklift in order to transfer a pallet of goods. One of the forks of the forklift suddenly fell off from the crossbar and hit the applicant’s right foot. His toes were then injured.

5.The respondent denies the liability to pay compensation claiming that the accident did not arise out of, nor in the course of the applicant’s employment.

6.The respondent averred that the applicant’s working hours were from 10 am to 7 pm. The respondent only allowed the applicant to work overtime from 6 am to 10 am and from 7 pm to 9 pm every day. On the day of the accident, the respondent did not authorise the applicant to work overtime after 9 pm. Therefore, the accident did not arise out of, nor in the course of employment.

7.The respondent did file an answer but they did not dispute the employment relationship and did not dispute how the accident happened, and did not dispute the accident did result in personal injury of the applicant.

8.As the respondent is absent at trial, it has no evidence to sustain its defence. Therefore, the defence is dismissed.

The Applicant’s Case

9.The applicant was born on 6 October 1991. He was 27 years old at the time of the accident.

10.There is no appeal against the Form 7 dated 22 July 2020. Therefore, the percentage of loss of earning capacity and the period of absence as stated in the Form 7 is conclusive for the purpose of this trial according to the case Ng Ming Cheong v Mass Transit Railway Corp [1997] 1 HKLRD 1231.

11.After the accident, the applicant sought treatment from the Prince of Wales Hospital. Physical examination showed a 2 cm laceration over the dorsal proximal interphalangeal joint of his right big toe with subungual haematoma. X-ray showed comminuted fracture of the distal phalanx of his right big toe and fracture of the head of the proximal phalanx of his right second toe.

12.After wound exploration, he was given a protective brace for his right big and second toe. He was discharged on 18 April 2019. There was non-union of bone fragment in the distal phalanx base of the applicant’s right big toe. His right big toe had residual flexion deformity. There would be pain upon prolonged walking.

The Applicant’s Monthly Earnings

13.The applicant appeals against the assessment made by the Form 5 dated 12 October 2020 in respect of the monthly earnings HK$4,800.00 therein.

14.According to the applicant, he did not sign any written employment contract with the respondent. His daily wages were HK$550.00. Overtime payment was HK$50.00 per hour and he was paid HK$250.00 for each container he handled. Besides, he was provided a free meal each day as informed by Mr Leung at the interview. The applicant values the meal as HK$50.00 per meal. He worked five days a week (ie 22 days a month).

15.According to the respondent’s record, the applicant was paid HK$2,900.00 for the first week of April. The applicant claims that he was paid HK$2,400.00 as his wages for the second week of April. Therefore, up to 12 April 2019, he was paid HK$5,300.00 in total. I accept the above evidence in relation to the earnings of the applicant.

16.As to the calculation of monthly earnings as per section 11 of the Employees’ Compensation Ordinance (“ECO”), the applicant submitted that the second half of section 11(1)(b) should be used, ie if an employee has been employed by the same employer for less than 12 months, the average monthly earnings should be calculated from that shorter period.

17.Counsel for the applicant cited the Court of Appeal case Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337 which laid down the rules for calculating monthly earnings under section 11. The majority view of the above authority stated that the “lesser period” under section 11(1)(b) could be less than 1 month, as long as the earnings during this period were such as to render it practicable to calculate the employee’s monthly earnings. I agree that the above authority is applicable in the present case.

18.Based on the abovementioned authority, the applicant’s monthly earnings at the time of the accident is:

HK$5,300.00 × 30/12 + HK$50.00 × 22 = HK$14,350.00.

19.The applicant was given sick leave for more than one year. According to section 11(1A)(a) of ECO, his monthly earnings beyond the initial 12 months’ sick leave should be adjusted at the same rate as the rate of increase in earnings given to its other employees.

20.The respondent employed Ng Kin-pang after the accident. Mr Ng was initially paid HK$580.00 per day. By April 2020, that is 12 months after the accident, Mr Ng’s daily wages were increased to HK$650.00. Therefore, the rate of increase in wages for Mr Ng was 12.07%, which is HK$(650.00 – 580.00) ÷ HK$580.00 × 100%. I accept that such percentage 12.07% shall be adopted as the rate of increase in the applicant’s monthly earnings since April 2020. Thus, the monthly earnings beyond the initial 12 months should be HK$14,350.00 × (1 + 12.07%) = HK$16,082.05.

Compensation Under Section 9

21.According to the authority Xie Jinfeng v 勝哥火鍋食品專門店 [2021] HKDC 126 at paragraph 11, the adjusted earnings of $16,082.05 should be adopted as the applicant’s monthly earnings.

22.The loss of earning capacity is 4% as stated in the Form 7. The applicable multiplier is 96. Accordingly, section 9 compensation shall be calculated as follows: HK$16,082.05 × 96 × 4% = HK$61,755.07.

Compensation under Section 10

23.The applicant was granted sick leave from 13 April 2019 to 15 June 2020 according to the Form 7, which equals to 1 year 2 months and 3 days. Accordingly, the section 10 compensation shall be assessed at, for the first 12 months: HK$14,350.00 × 4/5 × 12 = $137,760.00; for the remaining 2 months and 3 days (ie 2.1 months): HK$16,082.05 × 4/5 × 2.1 = HK$27,017.84. The total sum of the above two figures would be HK$164,777.84. That is the award under section 10.

Compensation Under Section 10A

24.The applicant claimed HK$214.00 for elbow crutches on the recommendation of the physiotherapist at Prince of Wales Hospital. Medical expenses are defined under ECO section 3 to include “curative materials”. I accept that the elbow crutches prevented further injuries to the applicant’s fractured toes, therefore it should be regarded as curative in effect. I allow such claim under this head in full.

Summary on Compensation

Conclusion

26.As the applicant has not received any interim payment or compensation which may have to be deducted from the total amount of compensation, I enter judgment against the respondent and order the respondent to pay the applicant the above total amount of compensation of HK$226,746.91 with interest at half judgment rate from the date of the accident to the date of the judgment and thereafter at judgment rate.

Costs

27.Costs shall follow the event. The applicant’s costs of the application shall be paid by the respondent with certificate for counsel. The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

28.Lastly, I thank Mr Cheng for his assistance rendered to this court.

Mr Alfred C P Cheng, instructed by Szwina Pang, Edward Li & Co, for the applicant

The respondent was not represented and did not appear