Chan Siu Kai v. Hop Chung Carriage Co Ltd

DCEC71/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 71 OF 2006

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BETWEEN

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Coram: H H Judge Marlene Ng in Court

Date of Hearing:  24^th July 2007

Date of Handing Down Judgment: 25^th July 2007

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ASSESSMENT OF COMPENSATION

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I.     Introduction

1.At about 7:34am on 20^th January 2004, Mr Chan Tsz Ki (“Deceased”) was a passenger on board a light goods vehicle travelling along Tolo Highway when the light goods vehicle collided with a medium goods vehicle articulated with trailer (“Accident”). The Deceased suffered fatal injuries.

2.The Applicant is the father of the Deceased. He claimed that the Deceased was a delivery worker in the course of employment with the Respondent. At the time of the Accident, the Deceased was on the way to Sheung Shui Abattoir to pick up some slaughtered pigs for delivery.

3.The Applicant claimed for employees’ compensation for himself and other members of the family of the Deceased against the Respondent.

4.The Respondent never participated in the present proceedings since their inception. On 12^th May 2006, I granted judgment on liability in favour of the Applicant against the Respondent for compensation to be assessed.

5.Despite service of my Order of 12^th May 2006 as evidenced by an affidavit of service dated 8^th June 2006, the Respondent did not file any List of Documents or witness statement as to fact in these proceedings.

6.Despite service of my Order of 18^th May 2007 which directed that the assessment of compensation be heard before me on 24^th July 2007 as evidenced by the second and third affidavits of service dated 20^th and 24^th July 2007 respectively, the Respondent was absent at the hearing.

II.      Deceased’s employment and earnings

(a) Evidence

7.The Applicant gave evidence at the hearing. He claimed that since November 2003 the Respondent employed the Deceased as a delivery worker. The Deceased’s main duty was to deliver slaughtered pigs from abattoirs to various restaurants, and he worked according to the Respondent’s arrangements and instructions.

8.After the Accident, the Respondent submitted Form 2 dated 3^rd February 2004 (“Form 2”) to the Labour Department. The Respondent acknowledged therein that the Deceased on average worked 24 days per month at daily wages of HK$300.00, so the Deceased’s monthly earnings were HK$7,200.00 (HK$300.00 x 24 days).

9.The Applicant in his Chinese witness statement dated 18^th May 2007 stated that the Deceased on average worked about 10 hours a day from 12 midnight to 10am for about 28 days a month. The Deceased also worked overtime for about 6 days per month. The Deceased’s daily wages were HK$300.00 and his allowance per day for overtime work was HK$100.00. So his average monthly earnings were HK$9,000.00 being HK$8,400.00 (HK$300.00 x 28 days) and HK$600.00 (HK$100.00 x 6 days).

10.The Applicant confirmed in evidence that his witness statement was prepared by his solicitors upon instructions given by him. Before he signed his witness statement, he had read it himself and his solicitors had also arranged for it to be read to him. The Applicant confirmed that when he signed the witness statement on 18^th May 2007 he considered the information therein was correct.

11.More than a year prior to the Applicant’s witness statement, a social worker from the Social Welfare Department (“SWD”) visited the Applicant’s family and prepared a Social Welfare Report dated 14^th March 2006 (“1^st Report”). In discussing the family situation before the Accident, the 1^st Report stated that the Deceased “worked as a transportation worker with monthly income of about HK$7,200.00 before the incident”.

12.The Applicant claimed that when the social worker first visited his family, he had already informed the social worker that the Deceased worked 30 or 31 days per month at daily wages of HK$300.00. After the 1^st Report was issued, its contents were explained to the Applicant. He considered the 1^st Report was incorrect in saying that the Deceased’s monthly income was HK$7,200.00, so he asked his eldest son Mr Chan Tze Kan to clarify with the SWD.

13.The supplementary Social Welfare Report dated 19^th September 2006 (“2^nd Report”) noted that the SWD received a telephone call from Mr Chan Tze Kan who alleged that the pre-Accident monthly income of the Deceased was HK$9,000.00 being HK$300.00 (daily wages) x 30 days (number of working days). The 2^nd Report further noted that Mr Chan Tze Kan was unable to provide any documentary proof. To investigate the matter, the SWD liaised with the Respondent but it was not fruitful. The SWD further liaised with the Labour Department and considered the Form 2. In the absence of documentary evidence, the 2^nd Report concluded that the Deceased’s monthly wages were estimated to be between HK$7,200.00 and HK$9,000.00.

14.When the Applicant gave evidence, he said that throughout the Deceased’s employment with the Respondent the Deceased worked all days of the month (ie 30 or 31 days) without taking any single day off. He said this also applied to the Deceased’s younger brother, Mr Chan Tze Kwong, who was employed by the Respondent as driver and who often teamed up with the Deceased in carrying out delivery duties. The Applicant claimed he knew about this because the Deceased and Mr Chan Tze Kwong lived with him.

15.In the circumstances, the Applicant claimed the Deceased’s average monthly earnings should be HK$9,600.00 being basic wages of HK$9,000.00 (HK$300.00 x 30 days) and overtime wages of HK$600.00 (HK$100.00 x 6 days).

16.When asked as to why he gave a different version of the Deceased’s monthly income in his witness statement made half a year after the 2^nd Report, the Applicant said at that time he had in mind the fact that the Deceased did not take any leave, but thought that the Deceased might take a day or half a day for Christmas and the New Year or might get off work early on certain day(s). So he adopted 28 days as the Deceased’s average monthly working days in his witness statement.

17.The Applicant agreed that the Deceased would not be paid if he did not work on any day. If the Deceased wanted to take time off, all he needed to do was to inform his employer and he would not be paid during his absence from work. The Applicant believed that if the Deceased wanted to leave early on any working day, his wages for that day might be reduced. But the Applicant insisted that apart from Christmas and the New Year the Deceased did not take any leave.

(b) Findings

18.Mr Lai, counsel for the Applicant, urged me to accept the viva voce evidence of the Applicant in preference to the other evidence before the court. Having considered the totality of the evidence, I am not convinced that such evidence is inherently probable.

19.There is no dispute between the parties that the Deceased’s daily wages were HK$300.00. The issue in relation to the Deceased’s monthly earnings turned largely on the Deceased’s working days per month. The Respondent in the Form 2 referred to 24 days per month. The 1^st Report was silent on this topic, but it was arguably implicit from the reference to the Deceased’s monthly income of HK$7,200.00 that the monthly working days were 28 days. The 2^nd Report was inconclusive although it noted Mr Chan Tze Kan alleged it was 30 days per month. The Applicant’s witness statement referred to 28 days per month. The fluidity of the Applicant’s stance renders his viva voce contention unpersuasive.

20.On 27^th January 2006, the Commissioner for Labour commissioned the 1^st Report. On 17^th March 2006, I directed that the 1^st Report be called for and released to parties when available. The 1^st Report was therefore prepared for the purpose of the application for employees’ compensation. By that time, the present proceedings had been issued and the Applicant (who was legally advised all along) must have been aware that the purpose of the social worker’s visit was to ascertain the family situation for the purpose of the present proceedings. In such circumstances, there is no reason why he would not be forthcoming to the social worker in relation to the Deceased’s earnings. I find the Applicant told the social worker the basic monthly wages of the Deceased were HK$7,200.00.

21.The inherent implausibility of the Applicant’s viva voce evidence can also be seen from his allegation that even on the social worker’s first visit to the family he told the social worker the Deceased’s average monthly working days were 30 or 31 days. If that were the case, there is no reason why the 1^st Report stated the Deceased’s monthly income was HK$7,200.00. I cannot discern any reason for the social worker or the SWD to make up that figure in the 1^st Report.

22.Whilst Mr Chan Tze Kan did subsequently allege to the SWD that the Deceased worked 30 days per month, the SWD was unable to verify that allegation. If, according to the Applicant, he told the social worker as early as in March 2006 that the Deceased worked 30 or 31 days a month without taking any leave and he even instructed his eldest son in September 2006 to tell the SWD so, it is strange he would in May 2007 give a witness statement stating that the Deceased worked 28 days per month.

23.It is even more improbable because the Applicant confirmed the reference to 28 working days per month in his witness statement was not mere inadvertence.

24.First, despite what the Applicant claimed he told the social worker and his instructions to his son to clarify with the SWD as referred to above, the Applicant said he consciously stated in his witness statement the Deceased worked 28 day per month because he considered the Deceased might (a) take time off for Christmas and the New Year and (b) leave early on certain working day(s). Yet these matters, which must have been known to the Applicant even in 2006, did not appear to have exercised his mind during the liaison with the SWD. No reasonable explanation is forthcoming.

25.Secondly, the Applicant confirmed he gave instructions to his solicitors to prepare his witness statement and he had read the contents (which he then believed to be correct) before signing the same. The straightforward phrases “每月需工作28天” and “平均每月基本工資為HK$8,400元($300 x 28)” in the Applicant’s witness statement left little room for misunderstanding. I reject his explanation in relation to the alleged “error” in his witness statement.

26.On the balance of probabilities, I do not accept the Applicant’s allegation that the Deceased worked continuously for the Respondent from November 2003 to January 2004 with taking any day off. I accept on balance that he worked 28 days a month and his basic monthly wages were HK$7,200.00, which was consistent with the 1^st Report and the Applicant’s witness statement. I also bear in mind it was not difficult to go on leave because the Applicant confirmed the Deceased could do so simply by informing his employer. There was no suggestion the Deceased had to find or allow time for his employer to find a replacement worker. Even the Applicant acknowledged the Deceased might take off early on certain working day(s), which would reduce the Deceased’s wages for such day(s).

27.According to the 1^st Report, the Deceased’s mother Madam Chan Kwan Foon claimed the Deceased gave her HK$4,000.00 as monthly contribution for family maintenance and a further HK$2,000.00 per month for his savings. I see no reason to doubt such assertion particularly as the Deceased was single and had no other dependants. He also did not travel overseas or even to Mainland China. But bearing in mind the Deceased must have used part of his monthly income for personal expenses, I accept the Deceased’s average monthly earnings were HK$9,000.00.

III.    Quantum

28.The Deceased was 22 years old at the time of Accident. The Applicant claimed that the members of the family of the Deceased are the following :

(a)         the Applicant (father of the Deceased),

(b)        Madam Chan Kwan Foon (mother of the Deceased),

(c)         Mr Chan Tze Kan (elder brother of the Deceased),

(d)        Mr Chan Tze Wing (elder brother of the Deceased),

(e)         Mr Chan Tze Cheong (elder brother of the Deceased),

(f)          Mr Chan Tze Kwong (younger brother of the Deceased),

(g)         Madam 范麗 (wife of Mr Chan Tze Cheong), and

(h)         Master 陳樂謙 (nephew of the Deceased).

29.The relationship between the Deceased and his parents was evidenced by the Deceased’s birth certificate and his parents’ marriage certificate. I am satisfied that the Deceased’s parents are “members of his family” within the meaning of section 2(1) of the Employees’ Compensation Ordinance (“Ordinance”).

30.The Applicant did not produce any documentary support (eg birth certificates) to verify the siblings’ relationship with the Deceased save and except the Report which states that such relationships were verified by a tenancy agreement of the Hong Kong Housing Authority issued on 17^th September 1987. Such tenancy agreement was not disclosed.

31.The Applicant confirmed the relationships between the Deceased and his siblings when he gave evidence. I also note that Mr Chan Tsz Kan in his statement to the police dated 19^th February 2004 referred to the Deceased and Mr Chan as his 4^th and 5^th younger brothers (see also 1^st Report), so plainly the Deceased ranked 4^th amongst 5 siblings. I see no reason to doubt the above evidence and accept that Mr Chan Tze Kan, Mr Chan Tze Wing, Mr Chan Tze Cheong and Mr Chan Tze Kwong were brothers of the Deceased.

32.The Report stated that all along the Deceased’s family of seven lived together at a public housing unit in Fu Sin Estate, Taipo. In the circumstances, I accept that the Deceased’s siblings are “members of his family” within the meaning of section 2(1) of the Ordinance.

33.There is no documentary evidence to establish the relationship between the Deceased and Madam 范麗/Master 陳樂謙. However, as conceded by Mr Lai, they are not “members of the family” of the Deceased. According to the Report, Madam 范麗 and Master 陳樂謙 only came from Mainland China to join the family in 2005 and 2004 respectively. Hence, they are not the sister-in-law and child of a brother, “any of whom has been living with the employee as a member of the same household and has been so living for the period of 24 months immediately preceding the accident concerned” within the meaning of “member of the family” in section 2(1) of the Ordinance.

34.The Applicant said he had spent about HK$70,000.00 for the Deceased’s funeral, coffin and cremation expenses. The receipts produced by the Applicant showed that the funeral expenses exceeded the cap of HK$35,000.00 set by the Sixth Schedule of the Ordinance.

35.In the circumstances, I award employees’ compensation in the sum of HK$791,000.00 against the Respondent as follows:

(a) pursuant to section 6(1)(a) of the Ordinance, $9,000.00 x 84 months = HK$756,000.00, and

(b) pursuant to section 6(5) of the Ordinance, HK$35,000.00.

V.      Conclusion

36.I therefore grant judgment in favour of the Applicant against the Respondent in the sum of HK$791,000.00 together with interest thereon at half judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate until payment.

37.The compensation shall be apportioned between the members of the family of the Deceased as follows :

(a) for the Applicant, (HK$756,000.00 x 47.5%) + HK$35,000.00 = HK$394,100.00,

(b) for Madam Chan Kwan Foon, HK$756,000.00 x 47.5% = HK$359,100.00,

(c) for Mr Chan Tze Kan, HK$756,000.00 x 5% ÷ 4 = HK$9,450.00,

(d) for Mr Chan Tze Wing, HK$756,000.00 x 5% ÷ 4 = HK$9,450.00,

(e) for Mr Chan Tze Cheong, HK$756,000.00 x 5% ÷ 4 = HK$9,450.00,

(f) for Mr Chan Tze Kwong, HK$756,000.00 x 5% ÷ 4 = HK$9,450.00.

The aforesaid members of the family of the Deceased are entitled to interest on their shares of the compensation at the rate specified in the above paragraph.

38.There is no reason why costs should not follow event. Subject to the matters referred to in the following paragraphs, I grant a costs order nisi that costs of the assessment of compensation (and all costs reserved, if any) be paid by the Respondent to the Applicant to be taxed if not agreed. There shall be certificate for counsel. Although this case is not one of complexity, on consideration the quantum of the claim and the issue of monthly earnings do justify the involvement of counsel.

39.At the hearing before me, Mr Lai made a late application for adducing the documents and receipts for funeral expenses. I granted leave for the Applicant to rely on the same and gave consequential directions. I also made an order that there be no order as to the costs of and occasioned by such application and apportioned 20 minutes of the hearing time for such application to assist the Taxing Master.

40.The next matter relates to the preparation of the hearing bundle. The hearing was for assessment of compensation, yet the Applicant’s solicitors included various statements given to the police, brief facts for prosecution against the driver of the light goods vehicle, the police sketch of the scene of the Accident and the prosecution case result (ie pages 27-59 and 64-85 of the hearing bundle). These documents were totally irrelevant to the assessment of compensation and should not have been included. I make a costs order nisi that there shall be no order as to costs in relation to the preparation, lodging and service (if any) of the above pages of the hearing bundle. 

41.This is not been the first time this court has to deal with indiscriminate inclusion of unnecessary documents in the hearing bundle. Indeed, in Ng Yuk Kuen for herself and other members of the family of Wong Wan Chung deceased v Ho Chi Yun DCEC925/2002 (unreported, 29^th July 2003), I disallowed costs in relation to the inclusion in the hearing bundle for assessment of compensation documents that were solely related to the liability issue.

42.Practitioners are reminded of the guidance in Practice Direction 5.6 that “[bundles] must not include documents which are unlikely to be referred to at the trial. If documents unexpectedly become relevant during the trial they can be added.” In future, practitioners may be called upon to justify why the burden of costs associated with the inclusion of unnecessary documents should not befall on them instead of the parties.

Representation:

Mr Alex Lai instructed by Messrs Hon and Company for the Applicant.

The Respondent in person and absent.