MAK MUI CHUN v. LUEN YIP ENGINEERING CO

DCEC716/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 716 OF 2004

J U D G M E N T

1.  This is an assessment of compensation under the Employment Compensation Ordinance.  The applicant is the widow of the deceased employee who passed away as a result of an industrial accident on 21 June 2003, suing also on behalf of their three children.

2.  Interlocutory judgment was entered by consent on 28 July 2005.  The deceased was 48 years old at the time of the accident.  He was a casual decoration worker working for different employers. 

3.  Applying section 6(1)(b) of the Employees' Compensation Ordinance and the sixth schedule thereof, the compensation will be a lump sum equal to 60 months times the deceased’s monthly earnings or $21,000, whichever is less.

4.  The sole issue in this case is what amount should be adopted as the deceased’s monthly earnings for calculation.  Mr Simon Leung, counsel for the Applicant, submitted that section 11(2) should be applied because it is impracticable for the court to assess under section 11(1).  If the court is to apply section 11(2), the parties agree that the monthly earnings shall be taken as 20 days of work, which is HK$15,000.  On the other hand, Mr Andrew Leung, counsel for the Respondent, submitted that calculation under section 11(1)(b) is practicable. 

5.  The Respondent filed a list of earnings of the deceased from October 2002 to June 2003.  During that period of time the deceased did not work for the Respondent at all in January 2003 and May 2003.  In October 2002 and February 2003 the Deceased worked for the Respondent for only a few days and in June 2003, only one day. 

6.  It is the Respondent’s case that in applying section 11(1)(b) the court should add together all earnings of the deceased from the Respondent, excluding that of June, and divide it by 8 months.  Which means that the court should take into account the months which the deceased did not work for the respondent at all for averaging.

7.  Section 11(1) reads: “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 a manner as is best calculated to give the rate 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.”

8.  The word “month” here must mean calendar month.  My view is that if the employee is not employed for 12 months preceding the accident, I can adopt any lesser period during which the deceased has been employed by the Respondent and compute the monthly earnings of the deceased in such a manner as is best calculated to give the rate per month. 

9.  The lesser period to be adopted must be a period of a full calendar month in which the deceased was employed by the Respondent.  Looking at the list of earnings, the period immediately preceding the accident that qualifies this description is the period between March 2003 and April 2003.  I will adopt that period of time as the lesser period for calculation.

10.  Accordingly, the monthly earnings of the deceased under the employment of the Respondent would be 41 x $750 x ½  = $15,375.  As it is, in my view, practicable to calculate the income using section 11(1)(b), I do not think section 11(2) is applicable. 

11.  The award under section 6(1) will be, therefore, $15,375 x 60 = $922,500.  The award under section 6(5) is agreed as $35,000.  50 % of the award under section 6(1) be apportioned to the widow of the deceased and the remaining 50 per cent be shared equally by the three children.  The award under section 6(5) be paid to the widow.

(Discussion)

12.  The award shall be with interest thereon at half judgment rate from the date of accident until date of award, and judgment rate thereafter until payment.