Tam Kai Ho v. Sky Lui Logistic Ltd

DCEC 1944/2021

[2023] HKDC 342

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1944 OF 2021

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ASSESSMENT OF COMPENSATION

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1.This is a trial for the assessment of compensation under ss 9, 10 and 10A of the Employees’ Compensation Ordinance (the “ECO”). The 1^st Respondent did not attend the trial.

2.On 15 September 2021, the Applicant applied for employee’s compensation against the 1^st Respondent in relation to an accident at work which took place on 6 January 2020. Interlocutory judgment was entered against the 1^st Respondent on 27 April 2022.

3.The Applicant was employed by the 1^st Respondent as a truck driver. On 6 January 2020, while the Applicant was on an escalator delivering some canned goods per the 1^st Respondent’s instruction, those said goods tilted and fell towards the Applicant from a trolley (the “Accident”). The Applicant suffered from chest wall contusion injury and x-ray imaging showed a small nick over the mid-sternal region.

4.The Applicant applied for compensation under ss 9, 10, 10A of the ECO.

5.For the purpose of this assessment of compensation, the following 4 pieces of factual findings are required to be made:

(a)  The Applicant’s monthly earnings at the time of the Accident;

(b)  Percentage of loss of earning capacity;

(c)  Sick leave period; and

(d)  Medical expenses incurred by the Applicant.

THE APPLICANT’S MONTHLY INCOME

6.The Applicant’s case is that he was employed by the 1^st Respondent from 2 December 2019 with monthly wage of $20,000. The bank statement he produced shows that the said wage was paid by the 1^st Respondent into the Applicant’s bank account by way of two payments, around the mid of December 2019 and early January 2020 respectively. The Court also noted that the Form 2 filled up and submitted by the 1^st Respondent showed that the Applicant’s monthly salary was averred to be $10,000.

7.On 19 August 2022, HH Judge Levy ordered that unless the 1^st Respondent file and serve a list of earnings of the Applicant for the period of 12 months immediately prior to the date of the Accident or such lesser period of employment within 14 days from the date of the order, the 1^st Respondent would be debarred from adducing any evidence in rebutting the Applicant’s alleged wages.

8.The 1^st Respondent did not file any list of earnings as per the order, though it did not mean the Court must accept and adopt the said earnings as stated in the Application without assessing the Applicant’s veracity. At the hearing of the assessment of compensation, the Applicant told the Court that he took a sick day off in late December which explained why only $9,355 instead of $10,000 was paid into his account. I accept the Applicant’s evidence.

9.In view of the foregoing matters, I am satisfied that the Applicant was earning a monthly salary of $20,000 at the time of the Accident, and this sum will be adopted for the purpose of calculating the amount of compensation under the various sections of the ECO.

PERCENTAGE OF LOSS OF EARNING CAPACITY

10.The Employee’s Compensation (Ordinary Assessment) Board issued a Certificate of Assessment (Form 7) on 22 June 2021 and certified that the Applicant suffered a 0.5% permanent loss of earning capacity as a result of the Accident.

11.It is well-established that the Board’s assessments are final and conclusive unless appealed under section 18 of the ECO: Ng Ming Cheong v Mass Transit Railway Corporation [1997] HKLRD 1231, 1236 -1237 per Le Pichon J (as she then was). No appeal has been lodged by the Applicant.

12.Pursuant to s 16H of the ECO, I accept the Form 7 as conclusive evidence and adopted such figure for the purpose of calculating the compensation of permanent partial incapacity under s 9 of the ECO.

SICK LEAVE PERIOD

13.The sick leave granted to the Applicant is a total of 292 days. Although bone fractures would not normally take such a lengthy period to heal, the Court took into consideration the alleged pain and the physiotherapy treatments the Applicant received from March to November 2020. There is no contradicting evidence regarding the Applicant’s sick leave and the Court will accept all the sick leave certified by the Employees’ Compensation (Ordinary Board).

MEDICAL EXPENSES INCURRED BY THE APPLICANT

14.The Applicant prepared an index listing out the amount of his medical expenses totaling at $8,460. All these itemized amounts, vary from $45 to $180, corresponded to the visits and treatments he received from Yan Chai Hospital and Tuen Mun Hospital. The Court accepts them all being necessary.

COMPENSATION UNDER SECTION 9 OF THE ECO

15.The Applicant was aged 38 at the time of the Accident. Applying the statutory multiplier of 96 (s 7(1)(a) of the ECO), and multiplier of 0.5%, the compensation under s 9 of the ECO should therefore computed as:

$20,000 x 96 x 0.5% = $9,600

COMPENSATION UNDER SECTION 10 OF THE ECO

16.The compensation under s 10 of the ECO should therefore computed as:

$20,000 x 292/30 x 4/5 = $155,733.33

COMPENSATION UNDER SECTION 10A OF THE ECO

17.As mentioned in paragraph 14, I will accept the total sum of $8,460 being the incurred medical expenses.

18.I accept that the Applicant has never received any advanced periodical payments from the 1^st Respondent and thus no credit is required to be taken into account.

SUMMARY

19.In summary, I assess the compensation payable to the Applicant under the ECO as follows:-

Section 9 compensation	$9,600.00
Section 10 compensation	$155,733.33
Section 10A compensation	$8,460.00
Total	$173,793.33

20.I therefore hold that the 1^st Respondent is liable to pay compensation to the Applicant in the sum of $173,793.33 together with interest at half judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate until payment in full.

21.I also make an order nisi that the 1^st Respondent shall pay the Applicant’s costs of the action to be taxed if not agreed. This order nisi shall become absolute upon the expiry of 14 days after the date of this judgment if there is no application to vary the same within the 14-day period.

Mr Law Ka Sing, instructed by PY Cheung & Co, for the Applicant

The 1^st Respondent was not represented and did not appear