CHAN TING HING v. HEALTHY WEALTH CO LTD

DCEC 1159/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1159 OF 2013

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ASSESSMENT OF COMPENSATON

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1. On 12^th September 2014, a judgment on liability (“Judgment”) was entered against the Respondent in respect of the Applicant’s present claims under the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”) with the amount of compensation to be assessed. This is the hearing for the assessment of the compensation.

2. The Respondent was absent at the hearing. I was informed by Mr Chik, Solicitor for the Applicant that the Respondent has been absent in the proceedings throughout.  The Judgment was also entered in the absence of the Respondent. 

3. The Order for the setting down of this hearing has been served by way of substituted services by placing an advertisement on a Chinese newspaper circulating and published in Hong Kong pursuant to the Court Order dated 6^th February 2015.  Upon the application of the Applicant, this hearing was conducted in the absence of the Respondent.

The Applicant’s evidence

4. The Applicant testified at the hearing.  He is now 68 years old, married with 4 children.  At the date of the Accident, he was at the age of 65.

5. He was employed by the Respondent as a general worker on 8^th July 2012, which was about 1 month prior to the Accident.

6. On 10^th August 2012, while at work under the employment of the Respondent, the Applicant fell onto the ground and injured his right foot (“the Accident”).

7. The Applicant first consulted a bonesetter, but that did not improve the condition of his injured foot.  The Applicant consulted the Lady Trench Clinic and was then transferred to the Accident & Emergency Department of Yan Chai Hospital for treatment.  The Applicant was diagnosed to have a fracture of the 5^th metatarsal of his right foot.  According to the medical report issued by Yan Chai Hospital dated 2^nd January 2013, the Applicant suffered from mild residual pain on the then latest follow-up medical consultation in December 2012.  He was given a heel walking sandal and was advised to heel walk.

8. Sick leave certificates were produced which showed that the Applicant was granted sick leave from 14^th August 2012 to 9^th May 2013 with the exception of 8 days in between, amounting to a total of 261 days.

9. A Certificate of Assessment was issued by the Employees’ Compensation (Ordinary Assessment) Board on 23^rd May 2013 (“the Certificate”) certifying that its assessment on the Applicant’s loss of earning capacity permanently caused by the injury was 1%.  The Applicant’s absence from work for the period from 14^th August 2012 to 9^th May 2013 (8 days excepted) was also certified as necessary by the Board.  No appeal against the Certificate has been lodged under Section 18 of the Ordinance.

10. In the absence of an appeal against the Certificate, the assessment showed on the Certificate shall be the evidence of the Applicant’s loss of earning capacity and the length of the necessary sick leave caused by the injury [See: Section 16H of the Ordinance; Ng Ming Cheong v Mass Transit Railway Corporation [1997] HKLRD 1231].

11. The Applicant claimed for compensation for permanent partial incapacity under Section 9 of the Ordinance and compensation for temporary incapacity under Section 10 of the Ordinance.  The Applicant confirmed that his claim for medical expenses under Section 10A of the Ordinance was not pursued.

The Applicant’s monthly earnings

12. Section 11 of the Ordinance provides that for the purposes of the Ordinance, the monthly earnings of an employee at the time of the accident shall be the higher of (1) the earnings for the month immediately preceding the date of the accident; and (2) the average monthly earnings for the preceding 12 months if the employee was so employed for the 12 months by the same employer, if not, for the lesser period during which he has been employed by the same employer.

13. The Applicant was not employed prior to his commencement of work with the Respondent which was about 1 month before the Accident.  Thus, the Court will consider the Applicant’s earnings for the month immediately prior to the date of the Accident.

14. According to the Applicant, there was no written employment contract with the Respondent.  It was orally agreed that he would receive a basic monthly salary of HK$10,000 a night shift monthly allowance of HK$1,000 and a fixed holiday allowance of about HK$320 per day.  

15. The Applicant has produced a written receipt signed by him dated 25^th September 2012 for his salary for the 11 days that he has worked for the Respondent in August 2012 (being 1^st to 9^th and 12^th to 13^th of August 2012).  There were 3 items showed on the receipt, namely (1) a pro rata payment of the basic month salary of HK$10,000; (2) a pro rata payment of the night shift monthly allowance of HK$1,000; and (3) a fixed holiday allowance for 1.5 days amounting to HK$484.

16. The Applicant said that his working hours were from 11 pm to 8 or 9 am of the following day.  He was therefore entitled to the night shift allowance. 

17. The Applicant’s evidence in regard to his entitlement to the fixed holiday allowance was, however, confusing and inconsistent.  He first told the Court that he was entitled to 2 days fixed holiday allowance every month in any event and he would get this allowance without the need to go to work.  He subsequently told the Court that he was entitled to 4 days fixed holiday allowance each month instead of 2.  There was no explanation given for the basis on which the 1.5 days fixed holiday allowance paid for the month of August 2012 was calculated.  The payment of HK$484 for 1.5 days as shown in the receipt did not match with the Applicant’s allegation that the daily rate for the fixed holiday allowance was HK$320.  The Applicant only worked for the Respondent for about a month or so.  There was no evidence to support the Applicant’s bare assertion that he was entitled to the fixed holiday allowance in any event without the need to go to work. 

18. “Earnings” was defined in Section 2 of the Ordinance to include wages and any privilege or benefit which is capable of being estimated in money including, inter alia, overtime payments or other special remuneration for the work done, whether by way of bonus, allowance or otherwise, if it was of constant character or for work habitually performed.  Intermittent overtime or causal payments of a non-recurrent nature shall not be included.

19. On the evidence before me, I am not satisfied that the payment of fixed holiday allowances was of a constant and recurrent nature.  This item shall not be included as part of the monthly earnings for the purpose of calculating the compensation under the Ordinance.

20. I am satisfied that the basic monthly salary and the night shift monthly allowance in the total sum of HK$11,000 shall form part of the Applicant’s monthly earnings for the purpose of this Ordinance.

21. The Applicant also produced another receipt dated 9^th October 2012, which showed that he received a sum of HK$6,000.  Although the sum of HK$6,000 was stated in the receipt as the monthly salary for August 2012, the Applicant said it was in fact the compensation paid by the Respondent for the injury he suffered as a result of this Accident.

The compensation

22. In calculating the compensation under Section 9 of the Ordinance, a multiplier of 48 is adopted pursuant to Section 7(1)(c) of the Ordinance as the Applicant was over 56 years of age at the time of the Accident.

23. The compensation awarded under Section 9 of the Ordinance is HK$(10,000+1,000) x 1% x 48 = HK$5,280.

24. The compensation awarded under Section 10 of the Ordinance is HK$(10,000 + 1,000)/30 x 261x 4/5 = HK$76,560.

25. The Applicant said that after the Accident, he received from the Respondent a compensation of HK$6,000.  This sum should be deducted from the compensation that he was awarded under Sections 9 and 10 of the Ordinance.  The amount of compensation that the Respondent shall pay the Applicant is therefore HK$5,280 + HK$76,560 - HK$6,000, making a total of HK$75,840.

Order

26. I therefore order that:-

(1)  the Respondent shall pay the Applicant a compensation in the total sum of HK$75,840;

(2)  interest on the compensation is awarded at one half of the judgment rate from the date of the Accident to the date of the judgment, and thereafter at the judgment rate until payment in full;

(3)  a costs order nisi that the Respondent shall pay the Applicant the costs of this Action, to be taxed if not agreed.  This cost order nisi shall become absolute if no application to vary the same is made within 14 days from the date of this decision; and

(4)  the Applicant’s own costs shall be taxed according to Legal Aid Regulation.