Ho Sai Kit v. Yuegang (Zhongbang) Cross-border Logistics Co Ltd

DCEC 737/2022

[2024] HKDC 1863

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 737 OF 2022

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ASSESSMENT OF COMPENSATION

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OVERVIEW

1.This is the Applicant’s employees’ compensation application under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”) for injuries sustained in an accident on 7 August 2021.

2.By order dated 7 July 2023, interlocutory judgment on liability was entered against the Respondent with compensation to be assessed.

3.The hearing for assessment of quantum came before me on 23 May 2024. The Respondent was absent at the hearing. Having read the affirmation of service, I was satisfied that the Respondent was informed of the hearing and therefore I allowed the hearing to proceed.

The Accident

4.The Applicant was employed by the Respondent as a cross-border driver.

5.On or around 7 August 2021 at about 10:15 am, in the course of the Respondent’s employment, the Applicant was injured when he fell down from a mobile crane in a construction site situated at Area 54, Ying Hei Road, Tung Chung, Hong Kong (“the Accident”).

Injury and Assessment

6.The Applicant was admitted to Princess Margaret Hospital (“PMH”) after the Accident.

7.CT of trauma series showed comminuted fracture right iliac wing with intra-articular involvement of the right sacroiliac (“SI”) joint with widening of right SI joint, fracture left superior and inferior pubic rami. The muscle enzyme was elevated. He was initially treated by pelvic blinder and had medical care in Intensive Care Unit (“ICU”). He was transferred out from ICU to general orthopaedic ward on 9 August 2021. Operation of close reduction with internal fixation had been performed on 11 August 2021. He was discharged from PMH and transferred to Caritas Medical Centre for further rehabilitation on 17 August 2021.

8.He had regular follow up in the specialist outpatient clinic at PMH from 10 September 2021 to 31 December 2021 with outpatient physiotherapy and occupational therapy.

9.He was also diagnosed as suffering from adjustment disorder that related to the Accident.

10.By the Certificate of Assessment dated 10 August 2023 (Form 7), the Applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) to have suffered a 14.75% permanent loss of earning capacity.

11.By the Certificate of Review of Assessment dated 30 November 2023 (Form 9), the Applicant’s permanent loss of earning capacity was revised to be 15%.

QUANTUM

Section 9: Permanent partial incapacity

12.The Applicant was born on 20 January 1975. He was 46 years old at the time of the Accident. Hence a multiplier of 72 applies.

13.The Applicant had not been employed for 12 months before the Accident. For the purpose of computing the Applicant’s monthly earnings, Mr Ng, solicitor for the Applicant, submitted a calculation by dividing the sum of the Applicant’ total remuneration from 25 February 2021 to 7 August 2021(HK$234,300) by the total number of the days the Applicant worked (164 days), and then multiply the quotient by 30 days.

14.I agree with Mr Ng’s calculation and adopt an average monthly salary of HK$42,859.76 (HK$234,300/164 × 30) per month.

15.That said, section 7(1)(b) of the Ordinance provides that: -

“(1) Where permanent total incapacity results from the injury, the amount of compensation shall be —

…

(b)  in the case of an employee of or over 40 years of age but under 56 years of age at the time of the accident, a lump sum equal to 72 months’ earnings or 72 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(b) specified in the first column of that Schedule, whichever is the less.”

16.The amount of the actual monthly earnings is more than the amount provided in the Sixth Schedule of the Ordinance which is HKD$35,600. The latter should therefore be adopted as the Applicant’s monthly earnings.

17.The amount of compensation payable under Section 9 is therefore: -

HK$35,600 × 72 × 15% = HK$384,480.

Section 10: Temporary incapacity

18.The period of absence from duty necessary as a result of the injury was assessed to be from 7 August 2021 to 27 July 2023, totaling 23 months and 21 days in the Form 9.

19.However, Mr Ng for the Applicant has drawn the court’s attention to the Applicant’ sick leave certificates from 7 August 2021 to 19 May 2024 totalling 33 months and 12 days.

20.Although the Applicant’s sick leave period exceeds 24 months, section 10(5) of the Ordinance provides that the court may further allow a period of no more than 12 months.

21.The Applicant’s sick leave period is supported by medical certificates; Having considered the severity of the Applicant’s injuries, I accept that the period of temporary total incapacity should be extended to 33 months and 12 days: See Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd [2001] 2 HKLRD 803.

22.In this case, the periodic payment under section 10 of the Ordinance should be: -

HK$42,859.76/30 × 33 months and 12 days (ie 1,016 days) × 4/5 = HK$1,161,213.76.

Section 10A: Medical Expenses

23.Having reviewed the Applicant’s receipts of the medical expenses, I accept that the Applicant is entitled to HK$7,106 under section 10A of the Ordinance.

Summary of Quantum

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

		HK$
Section 9		384,480.00
Section 10		1,161,213.76
Section 10A		7,106.00