Khan Wasal v. Ng Kuen Hap Trading As 俠記五金回收公司

DCEC 1879/2024

[2026] HKDC 510

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO 1879 OF 2024

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IN THE MATTER OF AN APPLICATION BETWEEN

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ASSESSMENT OF COMPENSATION

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I. INTRODUCTION

1.The Applicant (“A”) claims for compensation in a work accident which occurred on 12 September 2023 [84-86] pursuant to ss7, 9, 10, and 10A of the Employees’ Compensation Ordinance, Cap 282 (the “Ordinance”).

2.There is no dispute on the accident and the injuries A suffered. Judgment on liability has been entered against the Respondent (“R”) on 28 March 2025 leaving the issue of quantum to be assessed.

II. BACKGROUND

3.At the time of the accident, A having been born on 15 September 1968, was 54 years of age turning 55. He was employed by R to work as a truck driver. According to A, it was agreed on 6 September 2023 that during the first month of his employment, he would be paid a daily wage of $900, working 26 days a month. A alleged the daily wage would be increased shortly once he had settled in his job. He started work on the following day, namely, 7 September 2023. After the accident, A said R paid A 5 days’ wages totaling $4,500 plus $700 for medical expenses. However, R at para 2 of her witness statement said A’s daily wage was $700.

4.A’s main duty was to drive a large truck to transport metal waste from R’s shop to various locations. He was assigned with a co-worker whose primary responsible was for the manual handling of the metal waste. Even though A’s primary duty was driving, he was also expected to assist with manual work when required.

5.About 12:30 pm on 12 September 2023, metal wastes were loaded onto the truck. When the truck was nearly full, A said he performed safety check in that he went around the truck to make sure everything was secured. A saw some protruding metal at the rear of the truck. He attempted to use his hands to push them back. In the course of doing so, the tailgate of the truck suddenly closed. A’s right hand was trapped and crushed resulting in right hand injuries, for which he now claims for compensation.

III. QUANTUM ISSUES

6.As a result of the accident, the Applicant was sent to the hospital where immediate surgery was performed on his right hand. The relevant medical reports are as follows:

(1) Medical report prepared by Dr Ng Chi Ho, O&T of PYNEH dated 22 April 2024 in which it was recorded that A was admitted on 12 September 2023. X-ray showed his right middle finger distal phalanx bone to be avulsed, but the right little finger with no fracture. His right middle finger distal phalanx was amputated on 12 September 2023. As to his right little finger, mallet splint was given. A was discharged on 13 September 2023. He has been training with physiotherapy and occupational therapy since discharge. Latest occupational therapy session on 2 April 2024 showed A’s work capacity to be less than that of his previous job. Job resettlement service has been referred. Latest O&T follow up on 5 April 2024, right middle finger tip still hypersensitivity and right little finger stiffness.

(2) A Medical report was prepared by Wong Hin Nang, Occupational Therapy Dept of PYNEH dated 13 May 2024. Initial assessment was made on 28 December 2023, later assessment on 10 May 2024. At the later assessment, A demonstrated work capacity still did not match the demands of the previous job. He was recommended to seek for a new job. He was referred to Hong Kong Worker’s Health Centre for job resettlement service. A short course of work rehabilitation was planned.

7.A continued to receive medical treatment and was granted sick leave from 12 September 2023 to 10 October 2024 by registered doctors in Hong Kong. He returned to Pakistan in October 2024 where he continued to receive medical treatment and was granted sick leave by the doctors in Pakistan from 16 October 2024 to 28 February 2025. For the purpose of the present assessment, A will only claim for periodic payments under s 10 of the Ordinance for the sick leave period as certified by the Review Board.

8.A was assessed by the Employees’ Compensation (Ordinary Assessment) Board on 10 October 2024 and by its Certificate of Assessment (Form 7) dated 24 October 2024, A was assessed to have suffered 3% loss of earning capacity [LOEC] and Sick leave was certified to be from 12 September 2023 to 10 October 2024.

9.On review, the Review Board assessed A’s LOEC at 3.5% and certified the sick leave period from 12 September 2023 to 10 October 2024.

10.A was examined by the single joint expert Dr Peter Ko who confirmed the findings of the government doctors. The relevant parts of Dr Ko’s comments and opinions are:

(1) A suffered right middle finger distal phalanx partial amputation and his right little finger injury resulted in mallet finger/mallet deformity;

(2) A complained of residue pain and swelling at the stump of the amputated right middle finger as well as pain and stiffness at DIPJ of the right little finger;

(3) A’s loss of the part of the distal phalanx after revision amputation would be permanent;

(4) A’s condition should have become more or less stable and static and A would not any significant functional improvement and benefit from further treatment after mid to late 2024;

(5) A would be able to resume his pre-accident job by mid to late 2024 with probably only little impairment of his work efficiency and effectiveness caused by the residual effect of his injury;

(6) A’s total impairment should be 4% whole person impairment, and 3-4% loss of earning capacity.

11.Notwithstanding that A had filed an appeal against the Form 7/Form 9, he confirmed that he will seek compensation on the basis of the sick leave period and loss of earning capacity as certified by the Review Board (see Form 9).

A’s monthly earnings

12.Section 11 of the Ordinance sets out the method of calculating earnings:

(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.

13.A had only worked for 5 days before the accident. The earnings for the month immediately preceding the accident cannot be taken as his earnings (s 11(1)(a) of the Ordinance). Instead, the earnings should be calculated by reference to the period during which he was employed, using such rates that are more favourable to him (s 11(1)(b) of the Ordinance). Further, in the absence of any contrary evidence, the court will compute his monthly earnings by using 26 days as the number of days of work per month.

14.These Authorities have been cited by P: (1) Rukhsar Begum v Native English Centre Ltd t/a The Green Lounge, unrep DCEC 867/2015, 3 April 2017, at paras 37, 38; (2) Tse Wut Cheuk by his next friend King Chung Lan v Patent Design & Engineering Ltd, unrep DCEC 1007/2015, 17 May 2017, at paras 26, 27.

15.According to A, the applicable monthly earnings should be $900 x 26 = $23,400.

S 9 award

16.A was aged 54 turning 55 at the date of the accident. According to s 7(1)(b) of the Ordinance, the multiplier should be 72 months’ earnings. A’s claim pursuant s 9 is: $900 x 26 days x 72 x 3.5% = $58,968

S 10 award

17.For s 10, the sick leave period as certified by the Review Board is 12 September 2023 to 10 October 2024 totaling 393 days and A’s claim under this head is: $900 x 26 days x 4/5 x 393/30 = $245,232

S 10A award

18.For s 10A, the total amount is $1,230 as shown in Schedule 1 attached A’s Opening Submissions with supporting receipts. A’s claim under this head is calculated after giving credit for the $700 he received from R as medical expenses. The net amount is $530.

The Disputes

The daily wage

19.R does not dispute that A was employed as truck driver but said the daily rate agreed was $700 (as opposed to $900 as claimed by P). A appeared in Court and affirmed the content of his witness statement, to stand as his evidence-in-chief. However, R did not appear in Court to give evidence, and her witness statement has not been affirmed in Court. As such, facts in A’s Witness Statement is not challenged and the content of R’s Witness Statement is not evidence for this assessment. I am bound to accept and use the daily wage of $900 for the purpose of this assessment.

The alleged loan

20.R alleged that A had borrowed $16,000 from her and she produced a copy of the loan agreement, which A disputes as to its authenticity. For the record, A denies that he had borrowed the sum of HK$16,000 from R as alleged in R’s witness statement. Again, as R did not appear to give evidence, what is said in her witness statement is not evidence in this assessment. As such, the alleged loan from R to A is not proved.

Interests

21.A says he is entitled to interest on the total award at half judgment rate from date of the accident, namely, 12 September 2023, to date of judgment and at judgment rate thereafter until the date of payment.

Costs

22.A submits upon the conclusion of this case the Court is to make the following costs order:

(i) The costs of the present proceedings to assess the question of EC Compensation is to be paid by R to A, including any costs reserved, with certificate for counsel, to be taxed if not agreed on party to party basis; and

(ii) A’s own costs to be taxed in accordance with the Legal Aid Regulations.

IV. CONCLUSION ON ASSESSMENT

23.Having considered A’s evidence and the documents produced, I find that A’s claims are made out. In summary, R is ordered to pay A forthwith:

(i) Compensation under s 9 of the Ordinance in the sum of HK$58,968;

(ii) Compensation under s 10 of the Ordinance in the sum of HK$245,232;

(iii) Compensation under s 10A of the Ordinance in the sum of HK$530;

(iv) Interest on the total of the sums (i), (ii) and (iii) above at half the judgment debt rate from the date of the accident, that is, 12 September 2023 to the date of this Decision and at the judgment debt rate thereafter until the date of payment.

(v) Costs of this quantum assessment, including costs reserved, if any, to be taxed if not agreed on party to party basis with certificate for one counsel;

(vi) A’s own costs to be taxed in accordance with the Legal Aid Regulations.

Mr Walker Sham, instructed by Huen & Partners, assigned by the Director of Legal Aid, for the applicant

The respondent was not represented and did not appear