Lee Man Kit v. Tung Cheong Logistics (Hong Kong) Ltd

DCEC 513/2022

[2024] HKDC 2077

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 513 OF 2022

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ASSESSMENT OF COMPENSATION

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Introduction

1.Pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”), the Applicant claims compensation against the Respondent in respect of the injury that he suffered in an accident that took place on 28 March 2021 (the “Accident”).

2.The Applicant was 42 years’ old when the Accident occurred.

3.As the Respondent did not file answer in response to the application herein, Her Honour Judge Levy entered interlocutory judgment against the Respondent on 29 September 2023.

4.The only outstanding substantive matter in these proceedings is the amount of compensation to which the Applicant is entitled.

5.This is the trial on the question of quantum.

6.Mr Edward Poon represents the Applicant, and the Respondent does not appear.

Material Background

7.The Applicant alleges that the Respondent had employed him as a delivery driver since March 2019.

8.At around 4 am on 28 March 2021, the Applicant, in the course of his employment with the Respondent, drove a truck and delivered goods to the Hong Kong International Airport. Upon moving a pallet of goods to a loading platform, it was discovered that the wrapping net was damaged. As such, the Applicant used a string to fix the broken net. It transpired that the string was suddenly broken. As a result, the Applicant fell from the loading platform, thereby suffering personal injury.

9.The Applicant was immediately sent to North Lantau Hospital. On the same day, he was transferred to Princess Margaret Hospital. The medical records show that the Applicant suffered the following condition:-

(1)  fracture left distal radius;

(2)  left wrist being deformed;

(3)  4cm laceration on left upper eyelid; and

(4)  abrasion on left knee.

10.Whilst the Applicant was discharged from Princess Margaret Hospital on 1 April 2021, he was readmitted on 8 April 2021. On 9 April 2021, the Applicant received operation on reduction and internal fixation of the left distal radius fracture.

11.In May 2021, the Applicant received multiple sessions of occupational therapy in Our Lady of Maryknoll Hospital.

12.As stated in the medical report of Dr Tam Kwok Bun dated 20 May 2022, the Applicant was considered healed on 28 October 2021, and operation to remove the implant was performed on 30 November 2021.

13.The Applicant was granted sick leave of 114 days. This covered the period from 28 March 2021 to 14 December 2021.

14.According to the Form 9 dated 3 April 2024, the Employee’s Compensation (Ordinary Assessment) Board (the “Compensation Board”) assessed that the loss of earning capacity permanently caused by the injury was 1%.

Compensation under Section 9 of the ECO

15.The methods of calculating the employee’s monthly earnings at the time of the accident are set out in section 11 of the ECO.

16.In his application, the Applicant alleges that he earned a monthly salary of HK$36,400 during the 12 months’ period before the Accident occurred.

17.Mr Edward Poon, in discharge of his duties to the court, fairly points out that the Applicant’s assertion is not borne out by the documentary evidence.

18.The Applicant has not produced any employment contract, salary slip and/or tax return. Meanwhile, he declared to the Housing Authority that he earned monthly salary of HK$21,000 as a driver as of May 2019 and monthly salary of HK$18,000 during the period from April 2022 to March 2023. For reasons best known to himself, the Applicant informed the Housing Authority that he was unemployed during the period from 1 April 2020 to 30 April 2021.

19.On the evidence before the court, I do not accept the Applicant’s assertion that he earned a monthly salary of HK$36,400 during the 12 months’ period before the Accident.

20.The evidence shows that the Applicant proclaimed to be unemployed at the material times when the Accident occurred. Based on his own assertions, it appears that the Applicant worked for the Respondent as a casual worker.

21.In the premises, I accept Mr Poon’s submissions that the Applicant is entitled to rely on the second limb of section 11(2), and the task of the court is to ascertain the average monthly income of a “notional” worker who was in the same situation of the Applicant. This “notional” worker (i) had similar earning capacity; (ii) was in the same grade employed; (iii) was in the same class of employment; and (iv) worked in the same district: see section 11(2) of the ECO; Lam Leung Hang v Chan Ming Fai & Anor [2024] HKDC 1345 at para 35.

22.Mr Poon refers me to the data published by the Government, which shows that the average monthly salary of a male driver at the material times was HK$18,316.80.

23.I accept that based on the second limb of section 11(2) of the ECO, the Applicant’s monthly earning during the 12 months’ period before the Accident took place was HK$18,316.80.

24.Since the Applicant was 42 years’ old at the time when the Accident took place, for the purpose of computing compensation under section 9 of the ECO, section 7(1)(b) and the Sixth Schedule are applicable.

25.Accordingly, pursuant to section 9 of the ECO, the Applicant is entitled to compensation of , ie HK$18,316.80 x 72 x 1%.

Compensation under Section 10 of the ECO

26.Pursuant to section 10(1) of the ECO, an injured employee is entitled to a monthly payment of fourth-fifths of the difference between the monthly earnings which he was earning at the time of the accident and the monthly earnings which he is earning or capable of earning during the period of his temporary incapacity after the Accident.

27.In the Form 9, the Compensation Board certified a sick leave period of 114 days.

28.In Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited [2008] 5 HKLRD 210 at para 18, Le Pichon JA, in the context of a personal injury claim, held that the Court is not bound by the mere issue of sick leave certificates, and the same are no more than a piece of evidence that has to be evaluated in light of all the available evidence.

29.In Cheung Sau Lin v Tsui Wah Efford Management Ltd [2018] HKDC 941 at paras 18-22, His Honour Judge Harold Leong, following Tam Fu Yip Fip, also pointed out that the Court may scrutinize the circumstances in which the sick leave certificates were provided, and consider whether they were given reasonably in light of all other available evidence including the medical evidence before the Court.

30.Whilst the sick-leave period lasted until 14 December 2021, Dr Tam opined that the Applicant was considered healed on 28 October 2021 and the implant was performed on 30 November 2021.

31.Taking this matter into account and bearing in mind that the Applicant’s injury was not very serious, I am of the view that the sick leave granted to the Applicant should not exceed 100 days.

32.In the premises, pursuant to section 10 of the ECO, the Applicant is entitled to a sum of , ie HK$18,316.80 x (100/30) x 4/5.

Compensation under Section 10A of the ECO

33.As evidenced by the receipts and statements issued by various hospitals and clinics, the Applicant incurred medical expenses of HK$1,988.00.

34.The Applicant is entitled to compensation of pursuant to section 10A of the ECO.

Conclusion and Order

35.For the above reasons, I hold that the Applicant is entitled to compensation in the total sum of , the breakdown of which is as follows:-

Section 9		HK$13,188.10
Section 10		HK$48,844.80
Section 10A		HK$1,988.00 ____________
	TOTAL:	HK$64,020.90 ===========

36.The Applicant is entitled to interest at half judgment rate from the date of the Accident (ie 28 March 2021) to the date of the present assessment (ie 3 December 2024) and thereafter at judgment rate until the date of payment.

37.I make a costs order nisi that the Respondent do pay the Applicant’s costs in these proceedings (including all costs previously reserved) to be taxed if not agreed (with certificate for counsel).

Other Matters

38.I express my gratitude to Mr Edward Poon for the helpful assistance rendered to me.

Mr Edward Poon, instructed by Huen & Partners, for the applicant

The respondent was not represented and did not appear