Lam Man Har v. Chan Man Tai t/a Pacific Link Forwarder Co

DCEC000617/1997

DCEC617/1997

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 617 OF 1997

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Coram: Her Honour Judge Yuen in Court

Date of Hearing: 23 May 2003

Date of Handing Down of Judgment: 25 June 2003

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J U D G M E N T

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1.This is an employee compensation assessment.

2.There was no dispute that the deceased had a traffic accident on 9/4/95 when he was driving a lorry. He was certified dead upon arrival in the hospital at 5.30 am the same day. The applicant is the mother of the deceased.

3.The respondent was fully aware of the accident shortly after its occurrence and did not seek to take issue on the time element under section 14 of the Employment Compensation Ordinance, Cap 282 (hereinafter called "the Ordinance"). The respondent did not dispute the applicant's contention that the deceased was his employee at the time of the accident. On 18/10/02 the respondent agreed to have judgment to be entered against himself on liability with quantum to be assessed.

4.It was the applicant's case that she was wholly dependent upon the deceased for her livelihood. The applicant did not seek any re-imbursement of the funeral expenses. She was seeking compensation payment under s.6(1) of the Ordinance.

5.The deceased was born on 6/5/1974 and was almost 21 years old at the time of the accident. By virtue of section 6(1) he was entitled to a lump sum compensation of 84 months' earnings against his employer.

6.There was no real evidence on the income of the deceased. The applicant produced no bank account book of the deceased though the deceased was understood to have been working for over 2 years prior to his death. What comprised the estate of the deceased was not known to this court. The applicant believed the deceased to be earning HK$10,000 per month through one of the conversations she had with the deceased. According to the applicant, the deceased contributed a monthly average of HK$5,000 to HK$6,000 to the household expenditure.

7.Mr. Chan Chun-wai, a colleague at work of the deceased at the time of the traffic accident, testified he worked for the respondent in delivering import and export products received from airline companies between the hours of 8am and 7pm. He was paid a fixed salary of HK$8,500 per month.

8.According to Mr. Chan Chun-wai, the deceased was the night time driver of the respondent. In Mr. Chan's knowledge the deceased worked 7 days a week between the hours of 1 am and 5 am. He believed the deceased was earning HK$4,800 per month. Mr. Chan was not aware of the nature of work of the deceased in his night shift driving duties.

9.Whilst testifying in court Mr. Chan, after reaffirming the contents of his witness statement, subsequently changed his mind and said the deceased could possibly be earning HK$10,000 a month. Mr. Chan did not offer any explanation for his sudden change of evidence from the monthly sum of HK$4,800 to the monthly sum of HK$10,000.

10.The respondent had declined to testify in court. No evidence was adduced on his relationship with the deceased. There was no evidence from the respondent on the record of salary or wages he paid to the deceased within the last 12 months of the deceased's employment or any employer's tax return of an employee's income.

11.The applicant's verbal account of HK$10,000 monthly income is not supported by documentary evidence. Why the deceased kept no bank account was not known to this court.

12.As to why the deceased could possibly earn HK$10,000 a month for working 5 hours at night when the day time driver only earned HK$8,500 month for working 11 hours is not exactly clear to this court. Mr. Chan's account in court about the deceased's monthly sum was shifting. His account of the deceased's income was unlikely to be credible.

13.All in all, primary evidence on the deceased's monthly income is missing and is totally unsatisfactory.

14.The applicant produces the statistics of the Census and Statistics Department to show the average monthly income of the drivers were HK$9,269 for the month of March 1994, HK$9,750 for the month of September 1994 and HK$10,052 for the month of March 1995. Falling short of any credible evidence on the income of the deceased, I accept for the purpose of the present assessment, the monthly average of a driver's income between the period of March 1994 to March 1995 to be HK$9,690 [ 1/3 x ($9,269 + $9,750 + $10,052)]. I accept, on balance, that the same sum would likely be the monthly income of the deceased.

15.Judgment is entered against the respondent in the sum of HK$813,960 (84 x $9,690).

16.Though most basic materials are missing, counsel has sensibly economized on the time spent in this hearing. I do award the costs of this hearing to the plaintiff, with certificate for counsel.

Representation:

Mr. Victor Gidwani instructed by Legal Aid Department for Applicant.

Respondent appearing in person.