Azam Nasar v. Ramandeep-kaur t/a Jais Jivi Transport Co

DCEC 91/2021

[2023] HKDC 1261

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION NO 91 OF 2021

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ASSESSMENT OF COMPENSATION

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INTRODUCTION

1.This is an assessment of compensation for loss and damage suffered by the applicant in an accident in the course of employment of the respondent on 17 July 2019. On 2 December 2022, interlocutory judgment on liability with compensation to be assessed was ordered.

2.Throughout the proceedings, the respondent has been absent and has not complied with the directions made by the court.  The respondent is also absent in this assessment of compensation.

FACTUAL BACKGROUND

3.According to the witness statement of the applicant, which is not challenged, he started to work with the respondent since 10 June 2019.  His duty was to drive lorry to deliver fish in boxes packed with ice to various locations in Hong Kong every day.  The accident occurred on 17 July 2019 between 1130 am and 0130 pm at Aberdeen Wholesale Fish Market.  In the course of unloading the boxes from the back of the lorry, when the applicant stepped on the footstep at the back of the lorry, the surface was slippery due to water and ice there and the applicant slipped and fell on the ground with his left side of the body and his left wrist hit to the ground.  At the time of the accident, the applicant was 34 years old.

4.According to the medical report issued by Queen Mary Hospital dated 26 July 2020, the applicant was admitted to the hospital on 17 July 2019.  He was diagnosed to have “sustained left distal radius closed fracture, and right hand and knee minor abrasions.  He was treated surgically with open reduction and internal fixation of left distal radius fracture on 19 July 2019.  He was discharged on 20 July 2019 with analgesics, physiotherapy and occupational therapy referrals.  He was last assessed in outpatient clinic on 21 May 2020. The fracture has healed and he has reached plateau in rehabilitation.  Sick leave was granted from 17 July 2019 to 21 August 2020.  His next orthopaedic clinic appointment is on 20 May 2021.”

5.On 4 June 2021, the applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board, which issued Form 7 on 18 June 2021 certifying that the loss of earning capacity permanently caused by the injury is 1%.  The applicant does not dispute this assessment.

APPLICANT’S CLAIM

6.The applicant claims compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance.

ISSUE

7.The respondent being in default, and there being no medical evidence adduced to dispute the Form 7 assessment, the issue before me is rather straightforward. The issues I have to determine are (1) the amount of salary the respondent paid the applicant prior to the accident; (2) the number of days of absence of duty; and (3) the amount of medical expenses.

SALARY

8.The applicant alleges that his salary was HK$20,000 per month, at a daily wage of HK$800.  While he worked for the respondent from 10 June 2019 to 17 July 2019, which is approximately one month and a week, and he alleges that he had no holiday during this period, he received 4 cash cheques from the respondent, namely:-

(1)  Cheque dated 13 August 2019 for HK$20,000;

(2)  Cheque dated 20 September 2019 for HK$20,000;

(3)  Cheque dated 22 October 2019 for HK$25,000; and

(4)  Cheque dated 22 November 2019 for HK$20,000.

9.In his evidence, the applicant explained that he did receive all these sums and that these sums included both his salaries and the sick leave.  The applicant accepts that his claim should give credit to these sick leave payments. I find no reason to disbelieve his such evidence, which is against his own claim.  From this, I also find him an honest witness.  He has been forthright in producing all the relevant documents which would reduce his own claim prepared by his lawyers.

10.Therefore, I find that his monthly salary prior to the accident was HK$20,000 per month.  As said, he worked for the respondent for one month and a week, which would entitle him a salary of HK$25,000 (that is, HK$20,000 x 1.25). In other words, he received HK$60,000 for his sick leave from the respondent.

ABSENCE OF DUTY

11.The applicant relies upon the “periods of absence of duty necessary as a result of the injury” set out in the Form 7, namely: (1) “17/07/2019 to 02/08/2019”; (2) “08/08/2019 to 10/10/2019”; (3) “17/10/2019 to 05/03/2020”; and (4) “16/03/2020 to 21/08/2020”.  I accept the same.

MEDICAL EXPENSES

12.The applicant produced 14 medical receipts all for 2019, in the total sum of HK$2,787, while he claims an amount of HK$6,000.

13.In his evidence, the applicant explained that these receipts do not represent all the medical expenses, and that some of the medical receipts are missing.  He testified in some detail that he had to go for check up twice a week, and do some exercises in his physiotherapy treatment.  As I have found him an honest witness, and also because I see no reason to disbelieve him in this respect, I find that these medical receipts produced before me do not represent all the medical expenses.

14.That said, the HK$6,000 claimed by the applicant is at best an educated guess only.  From the medical receipts produced before me, the amounts mainly varied from HK$80 to HK$135.  On the basis that he missed about 1/2 of the receipts, I would find that the medical expenses to be HK$3,500.

CONCLUSION

15.In the circumstances, I assess the compensation to be:

(1)  Section 9 compensation: HK$20,000 x 1% x 96

= HK$19,200.

(2)  Section 10 compensation: HK$20,000 / 30 x 381 x 4/5

= HK$203,200.

(3)  Section 10A compensation: HK$3,500

16.I shall also give credit of the respondent’s payment of HK$60,000 to the above sum.

17.I therefore make the following order:-

(1)  The respondent do pay the applicant HK$165,900 (comprised of the amounts set out in paragraph 15 above and the credit mentioned in paragraph 16 above);

(2)  There be pre-judgment interest at half of judgment rate thereon from the date of the accident (19 July 2019) to today;

(3)  There be post-judgment interest at judgment rate on the above sums;

(4)  Costs of the assessment be to the applicant, to be taxed, if not agreed; and

(5)  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.