CHENG ZISHAN v. MAG LOGISTIC CO LTD

DCEC 1244/2021

[2022] HKDC 1518

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1244 OF 2021

------------------------------

------------------------------

------------------------------------------------------

ASSESSMENT OF COMPENSATION

------------------------------------------------------

INTRODUCTION

1.  This is a trial for the assessment of compensation under ss 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (the “Ordinance”). The respondent did not attend the trial.

2.  By the 3^rd Affidavit of Leung Chi Shing, it is affirmed that a copy of the Order dated 24 August 2022 and a cover letter notifying the respondent of the date of the trial were inserted through the letterbox of the respondent at its address. The same were also inserted through the letterbox of Ka Chi Ying, the director of the respondent, at his address. I am therefore satisfied that proper service was effected.

3.  On 22 June 2021, the applicant applied for employees’ compensation against the respondent in relation to an accident at work which took place on 31 July 2019. Interlocutory judgment was entered into against the respondent on 23 June 2022.

4.  The applicant was aged 40 at the time of the accident, and was employed by the respondent as a factory worker starting from 22 July 2019. On 31 July 2019, the applicant was operating a knitting machine. While the weaving ribbon was in the course of being made into a roll, the applicant’s right index finger was trapped by the weaving ribbon in motion and her right index finger was injured (the “Accident”). The applicant suffered from right index finger subluxation as a result.

5.  For the purpose of this assessment of compensation, the following 3 pieces of factual finding are required to be made:

(a)  The applicant’s monthly income at the time of the Accident;

(b)  Percentage of permanent loss of earning capacity; and

(c)  Period of temporary incapacity.

THE APPLICANT’S MONTHLY INCOME

6.  The applicant’s case is that she worked 26 days per month, with an income of HK$9,500.

7.  The applicant adduced two cheques respectively dated 5 August 2019 and 5 September 2019 in the amount of HK$2,605 and HK$7,600 issued by the respondent to the applicant. I accept that the HK$2,605 represented the salary for the 8.5 days that the applicant had worked from 22 July 2019 to 31 July 2019. I also accept that the HK$7,600 represented 4/5 of the applicant’s income of HK$9,500. I therefore accept that the applicant’s monthly income was HK$9,500.

PERCENTAGE OF PERMANENT LOSS OF EARNING CAPACITY

8.  Medical Assessment Board (“MAB”)’s assessment of the applicant’s percentage of permanent loss of earning capacity is at 2%. The applicant does not challenge the result of the assessment.

TOTAL PERIOD OF TEMPORARY INCAPACITY

9.  Up to the date of this trial, the applicant has obtained sick leave for 145 days: (a) 31 July 2019 to 28 August 2019; (b) 25 September 2019 to 15 January 2020; and (c) 5 November 2020 to 7 November 2020, which were accepted by the MAB as necessary as a result of the injury.

MEDICAL EXPENSES

10.  The applicant asks for medical expenses of HK4,790, which are supported by documentary evidence.

COMPENSATION

11.  The various limbs of compensation can be worked out as follows:

(a)	s 9 compensation on compensation in case of permanent partial incapacity: the applicant was aged 40 at the time of the Accident. Applying the statutory multiplier of 72 (s 7(1)(b) of the Ordinance), and a multiplier of 2%, the relevant compensation is:   HK$9,500 x 2% x 72 = HK$13,680
(b)	s 10 compensation on compensation in case of temporary incapacity:   (HK$9,500 x 12/365) x 145 x 4/5 = HK$36,230.14
(c)	s 10A compensation regarding payment of medical expenses:   HK$4,790

12.  The total amount of compensation is:

s 9:	HK$13,680.00
s 10:	HK$36,230.14
s 10A:	HK$4,790.00
Total:	HK$54,700.14

13.  An advance payment in the amount of HK$7,600 was paid to the applicant by the respondent. The total compensation is therefore HK$47,100.14. Interest shall accrue on the sum at half judgment rate from the date of the Accident on 31 July 2019 up to the date of judgment, and thereafter at judgment rate until payment in full.

14.  As to the costs, I make a costs order nisi that:

(a)  The costs of the applicant be borne by the respondent, to be taxed if not agreed; and

(b)  The applicant’s own costs be taxed in accordance with Legal Aid Regulations.

15.  The costs order nisi shall become absolute in 14 days from the date of this judgment if no application to vary the order is taken out.

16.  I thank Ms Lui for her very helpful submissions.