Chen Meihua v. 林貝蘭前經營順合蔬菜

DCEC 1463/2022

[2024] HKDC 578

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1463 OF 2022

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ASSESSMENT OF COMPENSATION

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Introduction

1.On 5 July 2021, the applicant was injured in the course of employment by the respondent.

2.By the present proceedings, the applicant claims compensation under ss 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”).

3.The respondent has all along been absent and took no part in the proceedings. 

4.Interlocutory judgment on liability was entered on 29 September 2023 against the respondent.

5.The order of Her Honour Judge Levy fixing the date for assessment of compensation dated 29 September 2023 and notice of trial dated 24 October 2023 were served by the applicant on the respondent on 31 October 2023.  The same notice of trial was also sent to the respondent by ordinary post by Court.

6.I am satisfied that the respondent has had due notice of the hearing for assessment of compensation and has chosen not to appear.

Section 10

7.The applicant was employed by the respondent from April 2021 at the daily wage of $900.  She used to work for 22 to 23 days per month.  Her monthly income therefore were between $19,800 and $20,700.  For the month of June 2021, she worked for 23 days earning a sum of $20,700.

8.Section 11(1) of the Ordinance provides:-

“(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings: –

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

9.By the clear wording of s 11(1), the applicant is entitled to adopt the more favourable monthly earnings of $20,700.

10.According to the Certificate of Review of Assessment (Form 9) dated 4 January 2023, the periods of absence from duty necessary as a result of the injury were from 8 July 2021 to 12 July 2021 and from 8 August 2021 to 21 September 2022, giving a total of 470 days.

11.Mr Frederick Tai, who appeared for the applicant, fairly informed this court that there is an overlapping of 55 days and that 14 days of statutory holidays should be deducted therefrom. Therefore, the applicant is claiming 401 days.

12.The applicant resumed working as a waitress from 1 September 2022, before the expiry of the sick leave certificate.  For the period from 1 to 21 September 2022, she had earned a sum of $16,800.  This sum has to be taken into account in the calculation of her entitlement under s 10: see Yu Tat Kam v Chu Tung Shing [2009] 6 HKC 411 at para 24.

13.Accordingly, the compensation under s 10 is $211,944, ie ($20,700 x 401 days/30 x 4/5) – ($16,800 x 21 days/30 x 4/5).

Section 10A

14.The applicant has incurred $3,535 on medical expenses of which $3,355 is payable according to s 10A(3) and the Third Schedule.

Part payment

15.The applicant did not receive any part payment from the respondent.

Conclusion and award

16.By reasons of the aforesaid, the applicant is entitled to compensation in the sum of $215,299 ($211,944 + $3,355) and I so award.

Interest

17.Mr Tai asked for pre-judgment interest at half judgment rate from the date of accident to the last day of the sick leave and thereafter at full judgment rate until the date of assessment.

18.To my mind, the applicant is sufficiently compensated for the  pre-assessment period at half judgment rate.  I see no reason to enhance the same.

19.I therefore award interest at half judgment rate from the date of the accident (ie 5 July 2021) to the date of assessment and thereafter at judgment rate until the date of payment.

Costs

20.I make a costs order nisi that the respondent shall pay the applicant the costs of the assessment, to be taxed if not agreed. 

21.In the absence of any application for variation by letter within 14 days from the date of this judgment, the costs order nisi shall become absolute.

22.The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations;

Mr Federick Tai, of Munros, assigned by the Director of Legal Aid, for the applicant

The respondent was not represented and did not appear