Zafar Sikandar v. Charming Construction Engineering Hong Kong Company Ltd

DCEC 324/2023

[2025] HKDC 187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 324 OF 2023

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ASSESSMENT OF COMPENSATION

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Introduction

1.This is the hearing of an assessment of employees' compensation.

2.On 10 February 2023, the Applicant filed an Application with the Court claiming employees' compensation against the Respondent, his ex-employer, in relation to an accident happened to him while at work on 20 June 2022.

3.No Answer was filed by the Respondent.

4.On 28 June 2024, interlocutory judgment was entered against the Respondent with damages to be assessed.

5.On 14 January 2025, the Respondent did not send any representative to attend the assessment hearing. I was satisfied that the notice of hearing had been duly served on the Respondent, and that it was appropriate to proceed with the hearing in its absence.

Background of the Accident

6.According to the Applicant, on 16 June 2022, he was employed by the Respondent as a causal construction site worker to perform general construction work, and concrete/formwork works.

7.Around 9:30 a.m. of 20 June 2022, he was assigned by his supervisor, one Mr Chung Ho Wing ("Mr Chung"), to transport, among other things, a steel safe which was about 60 kg ("the Safe") from one house to another house, at a site near 15 Ping Ha Road, Yuen Long. He worked along with two co-workers for that purpose, Mr Awais Mohammad ("Awais") and Mr Faizan Mohammad ("Faizan") to transport the Safe from the 1/F to the G/F of the first house, and put it on a trolley there. Awais then walked away to attend some other matter.

8.After the Applicant and Faizan moved the Safe from the first house to a place near the second house by the trolley, they found some steps outside the second house, which prevented them from using the trolley to transport the Safe beyond.

9.As such, while Faizan was holding the trolley in place, the Applicant squatted down to hold the Safe and then lifted it up. He felt sharp pain immediately at his lower back and sustained back sprain injury. However, he could not let go of the Safe thinking that it could crush his feet if he did so. The Applicant put the Safe on a wooden stand nearby with great difficulty. After that, he felt his legs were wobbly and shivering, and could not walk for awhile, and felt very painful at his back.

P's case and evidence on treatments received

10.He informed Mr Chung of the accident at the site, who in turn notified the site foreman (a woman called Ms Kam Che) of the matter. Ms Kam asked the Applicant about the accident and told him that they would take him to see a doctor. Later, with the help of his two co-workers, he got on a taxi and was taken to a Chinese bonesetter in Tuen Mun instead. After the treatment, a man called Johnny, whom the Applicant addressed as his boss ("Johnny"), came to the Chinese bonesetter's clinic and later assisted the Applicant to go back home.

11.Two days later, on 22 June 2022, Johnny and Ms Kam came to the Applicant's house and took him to see the same Chinese bonesetter. But after that, still feeling very painful at his back, the Applicant further consulted a chiropractor in that afternoon.

12.However, his pain apparently did not subside so much so that he had to attend the A&E Department of Caritas Medical Centre ("CMC") for urgent medical treatment at around 10 pm that evening, and he was injected a dose of Ketorolac Trometamol for relieving his pain.

13.Thereafter, from June to December 2022, he attended different hospitals and clinics for treatment of his back pain. Amongst others, he received physiotherapy treatments from Princess Margaret Hospital.

14.He had to go back to Pakistan in March 2023 to attend some family matters, and during that period he regularly attended Riaz Hospital to treat his back injury.

15.As a result of the accident, he was granted a total of 433 days of intermittent sick leave from his treating doctors in Hong Kong and Pakistan.

16.On 22 November 2023, the Applicant was assessed by the Medical Assessment Board ("the Board"). In the Form 7 issued on 6 December 2023, the Board certified:

(1)  the Applicant's injury to be "back injury resulting in back pain and right lower limb numbness";

(2)  the periods of sick leave as so granted to him by his treating doctors to be necessary; and

(3)  his loss of earning capacity at 1.5%.

17.Thereafter, the Applicant sought a review of the assessment in the Form 7. But the Board maintained their assessment in the Form 9, which was issued on 28 February 2024.

Findings

18.The Applicant testified the matters as mentioned in paragraphs 6 to 17 above, which are unchallenged by the Respondent. I also find them credible and largely supported by the adduced contemporaneous medical documents. On this basis, I accepted the Applicant's testimony and find them proved on the balance of probabilities.

Monthly earnings

19.Initially, Mr Ho Kai Tong, the Applicant's handling solicitor, submitted in his Opening that the Applicant had only worked 4 days (counting from 16 June 2022) for the Respondent before the Accident, his daily wage was HK$1,300, and since the Applicant would have worked 26 days a month but for the accident, he came up with a figure of HK$33,800 per month to adopt as the Applicant's monthly earnings for calculating the compensations under sections 9 and 10 of the Employees' Compensation Ordinance (Cap 282) (the "ECO").

20.With respect, this is the wrong approach to take for addressing the issue of earnings here. In my opinion, section 11 of the ECO provides the exclusive statutory mechanism for calculating the injured employee's monthly earnings for the purpose of claiming the relevant compensations under the Ordinance.

21.It would therefore be misconceived for Mr Ho to project the Applicant's monthly earnings, which is not what he had actually earned, but rather basing on a guesswork of the number of working days the Applicant may have worked in a month if the accident did not happen. This is plainly at variance with the mechanism of calculation specifically laid down under section 11(1).

22.Such submitted approach may be used in Personal Injuries actions for calculating multiplicands to quantify the injured plaintiffs' loss of earnings in some appropriate cases when the circumstances permit. Yet, we are not facing with an assessment of PI damages here, but rather dealing with an assessment of statutory compensation, where the manners of calculation of the relevant injured employees' monthly earnings are expressly set within the four corners of section 11 of the ECO.

23.Owing to the Respondent's failure to enter into appearance in this case, there are understandably no monthly earnings of any comparable workers of the Respondent put forward for this Court's consideration. Nor was there any proper evidence adduced by the Applicant to show the average monthly amount which was capable of being earned by a person (during 12 months prior to the accident) in the same grade of similar earning capacity working in the same class of employment and in the same district as the Applicant in his case. As such, section 11(2) of the ECO cannot come to his avail either.

24.The C&S Tables on the "Average Daily Wages of Workers Engaged in the Public Sector Construction Projects" for the months of May to July 2022 produced at the Hearing Bundle would not be good enough, for they only show the daily wage of "general workers and labourers" during this period which Mr. Ho seeks to rely on, but did not further show the average monthly working days of these workers/labourers. As such, this Court cannot simply pluck a figure out of thin air and adopt it as the average monthly working days for this class of workers at the material times.

25.On the other hand, there are two cheques both issued in the Applicant's favour adduced at the hearing, which in my view are relevant for calculating his monthly earnings at the time of the accident:

(1)  The first one is in the sum of HK$22,208 issued by a company called "Yuk Yat Machine Eng." ("Yuk Yat") dated 4 July 2022[1] ("the 1^st Cheque")

(2)  The second one is for the amount of HK$14,400 issued by the Respondent dated 5 July 2022 ("the 2^nd Cheque")[2].

26.However, a copy of the 1^st Cheque was produced belatedly, not until when the hearing commenced. The late production naturally aroused a sense of circumspection in my mind over how this cheque was given rise. As such, I vigorously tested the veracity of the Applicant's testimony as to the nature and purpose of the alleged payment by Yuk Yat to him.

27.In the end, I accepted the Applicant's account on the aforesaid two cheques, and I found as follows:

(1)  They were both given to him by his "boss", Johnny after the accident around the time when they were issued;

(2)  Apart from operating his construction / engineering business under the Respondent's name, Johnny had also run his business under name of Yuk Yat;

(3)  The amount of the 1^st Cheque represented the Applicant's earnings from Yuk Yat for the period between 1 June 2022 to 14 June 2022. Such earnings include his wages paid at daily rate of HK$1,300, and overtime (OT) payment for work done beyond his normal daily working hours at HK$100 per hour;

(4)  As for the 2^nd Cheque, the sum of HK$14,400 comprises of two parts. The first being his salary for his four working days on 16-18 and 20 June 2022, and 1 hour of OT payment, totalling HK$5,300 and the rest is the partial payment of his EC compensation (HK$9,100);

(5)  The matters mentioned in (3) above though given by the Applicant for the first time in the witness box, it was corroborated by the two Notices of Accident filed by him to the Labour Department. In the first Notice dated 24 June 2022, he filled in the name of Yuk Yat in the space for the Employer's name, whereas in the subsequent one dated 15 September 2022, he changed the employer's name to both Yuk Yat and the Respondent. The Applicant's work with Yuk Yat was also mentioned in his witness statement;

(6)  The Accident happened on 20 June 2022, and if the sum of HK$9,100 is divided by HK$1,300 per day (i.e. the Applicant's daily wage rate), this would yield a figure of 7 days. Viewed thus, that amount can be consistent with being a kind of compensation paid by the employer in response to the worker's injury noting that sick leave was also granted to the Applicant from 22 to 30 June 2022;

(7)  This Court specifically asked the Applicant why the 1^st Cheque was produced to the Court so late. He said such cheque, together with the 1^st Cheque, had already been handed over to his lawyer before his witness statement was prepared. After carefully considered the evidence as whole, I accept his testimony. For, according to my observation as to how the case and evidence was presented by Mr Ho, it would appear to me that he had laid under a misapprehension that the monthly earnings can be calculated in the way as he submitted. Therefore, there is a reasonable possibility that in the preparation of his client's witness statement, Mr Ho's attention was just focusing on the salary paid to the Applicant by the Respondent while neglecting what had been paid by Yuk Yat.

28.In light of the aforesaid and after considering all the evidence before me, I further find that the Applicant was also working as a casual worker for Yuk Yat for the month of June 2022 and such employment by Yuk Yat was still continuing when the Applicant worked for the Respondent, especially given the arrangement of works by Johnny who was the actual operator behind these two companies as further elaborated by the Applicant in court. Further, the works which the Applicant performed for Yuk Yat was essentially of the same nature as what he did for the Respondent. As such, it would appear to this Court that the Applicant would also be incapacitated to perform such works he had performed for both Yuk Yat and the Respondent during the sick leave periods. There is no evidence that the Applicant had been engaged in any employment, let alone receiving any earnings, during the sick leave periods.

29.In these circumstances, and after carefully considering the whole evidence before me, I hold that the earnings from Yuk Yat can be regarded as that received by the Applicant from a concurrent contract of service entered into with another employer (which was nonetheless still operated by Johnny behind) during the same month of June 2022, and that the monthly earnings of the Applicant at the time of the accident can be computed by invocating section 11(7) of ECO accordingly to include such additional earnings from Yuk Yat, apart from those he earned from the Respondent.

30.On that basis, this Court arrives at the figure of HK$19,700 (ie HK$5,300 + HK$14,400) and is of the view that it is appropriate to adopt this figure as the Applicant's monthly earnings at the time of the accident for quantifying the relevant compensations payable to him under sections 9 and 10 of the ECO.

Section 9 compensation

31.Neither party has appealed against the Form 9. The matters as stated therein constitute conclusive evidence against each party. See Ng Ming Cheong v Mass Transit Railway Corporation [1997] HKLRD 1231. As pointed out above, the loss of earning capacity as assessed by the Board is 1.5%.

32.The Applicant was 23 years old at the time of accident. His entitled compensation under this head is quantified thus:

HK$19,700 x 96 x 1.5% = HK$28,368

Section 10 compensation

33.After cross-checking the table of sick leaves as helpfully prepared by Mr Ho with the sick leave periods as certified by the Board under the Form 9, and deducting 14 days of the intervening statutory holidays, I am satisfied on the evidence before me that the Applicant is entitled to the following compensation under this head:

HK$19,700 x (433 - 14) / 30 x 4 / 5 = HK$220,114

Section 10A compensation

34.After considering the medical receipts and statement of account issued by the hospitals/clinics as produced by the Applicant, and the revised table of medical expenses as prepared by Mr Ho, which has capped the medical expenses claimed in line with the relevant statutory daily maximum provided under section 10A of ECO, this Court allows a total sum of HK$3,185 under this head.

Credit given to HK$9,100 received

35.The Applicant agrees to give credit to the sum of HK$9,100 which he previously received from the Respondent, as partial payment of his EC compensation.

Summary

36.In the premises, the outstanding compensation payable by the Respondent is summarised below:

(1)	Section 9	$28,368
(2)	Section 10	$220,114
(3)	Section 10A	$3,185
		________
	Total :	$251,667
Less :	payment received	($9,100)
		_________
	Balance :	$242,567

Disposition

37.Due to the above reason, the Respondent is ordered to pay the Applicant forthwith

(1)  the sum of HK$242,567; and

(2)  interest accruing thereon at half judgment rate from the date of the accident (ie 20 June 2022) to the date hereof and thereafter at judgment rate until full payment.

38.This Court also makes a costs order nisi that the Respondent shall pay the Applicant the costs of this action (including all reserved costs, if any), to be taxed if not agreed. The costs order nisi shall become absolute in the absence of application to vary the same within the next 14 days. The Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.

39.Lastly, it remains for me to thank Mr Ho for his assistance rendered to the Court.

Mr HO Kai Tong of Y M Ng & Co, assigned by the Director of Legal Aid, for the applicant

The respondent was was not represented and did not appear