KAUR GURJIT, appointed to represent the estate of GURLAL SINGH (since deceased) v. HARINDER ENGINEERING LTD AND ANOTHER

DCEC 2943/2019

[2023] HKDC 59

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2943 OF 2019

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

IN THE MATTER OF AN APPLICATION BETWEEN

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

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

JUDGMENT

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

Introduction

1.  By a consent order dated 27 May 2021, interlocutory judgment on liability was entered against the 1^st respondent with compensation to be assessed.

2.  By the order of Her Honour Judge Levy dated 28 May 2021, interlocutory judgment on liability was entered against the 2^nd respondent leaving compensation to be assessed.

3.  The applicant passed away on 7 January 2021 for reason unrelated to the to the injury he sustained in the subject accident. Leave was granted to Madam Kaur Gurjit, the widow, to carry on the proceedings.

4.  By the order of Her Honour Judge Levy dated 8 July 2022, the witness statement of the deceased applicant dated 5 March 2021 is admitted as evidence and as evidence-in-chief at the trial.

Notice of trial

5.  The notice of trial was served on the 1^st and 2^nd respondents by the applicant’s solicitors at their respective registered office.

6.  I am satisfied that due notice has been given to the 1^st and 2^nd respondents.

Assessment of Compensation

Section 9

7.  The deceased applicant was a general worker. He was employed by the 1^st respondent between late February 2018 and March 2018. His daily wage was $1,000 and worked 26-28 days per month. His monthly earning would have been $26,000. He was injured on 21 March 2018.

8.  However, the 1^st respondent filed a list of earnings stating that for the period from March 2017 to February 2018, the monthly earnings of the deceased applicant were $20,800.

9.  According to the deceased applicant, the 1^st respondent paid him periodical payments between 8 June 2018 and 21 March 2020 of $20,000 each. If the monthly earnings of the deceased applicant were $20,800 only, the 1^st respondent would not have paid him $20,000 by way of periodical payment. On balance, it is unlikely that the deceased was only earning $20,800 per month.

10.  Section 11(2) of the Employees’ Compensation Ordinance (“ECO”) provides:-

“Where by reason of the shortness of the time during which an employee has been in employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

10. Accordingly, I accept that the deceased applicant worked for the 1^st respondent at the daily wage of $1,000. His working days per month were 26 days. His monthly earnings should therefore be $26,000 ($1,000 x 26 days).

11.  The deceased applicant was 41 years old at the time of the accident. Under s7(1)(b) of ECO, the multiplier is 72.

12.  The deceased applicant and the 1^st respondent lodged notices of appeal against the Certificate of Review of Assessment issued on 27 May 2021 (“Form 9”) on 17 and 19 August 2021 respectively. Pursuant to the order of Her Honour Judge Levy dated 8 July 2022, they were respectively withdrawn and struck out.

13.  By the Form 9, the loss of earning capacity permanently caused by the injury was assessed at 4.5%.

14.  Accordingly, the compensation under s9 of ECO is $84,240 ($26,000 x 72 months x 4.5%).

Section 10

15.  The Board certified the period of absence from duty as a result of the injury at 760 days.

16.  Accordingly, the compensation under s10 of ECO is $526,933.33 ($26,000 x 4/5 x 760 days/30).

Section 10A

17.  The deceased applicant has incurred $5,220 on medical expenses but he had received $3,000 from the 2^nd respondent in reimbursement.

18.  Giving credit to the said reimbursement, the award under s10A of ECO is therefore $2,220 ($5,220 - $3,000).

Partial payment

19.  The deceased applicant said that he had received a total of $180,000 by way of periodical payment.

20.  Nevertheless, Ms Law Wai-ching, who appeared for the applicant, has fairly taken into account all bank deposits of $20,000 each into the bank account of the deceased applicant with Bank of China (HK) Ltd during the sick leave period. The total amount of partial payment should therefore be $480,000.

Conclusion and award

21.  Accordingly, I find that the applicant is entitled to compensation in the sum of $133,393.33 which is made up of the following:

Section 9 compensation		$84,240.00
Section 10 compensation		$526,933.33
Section 10A compensation		$2,220.00
		__________
Total		$613,393.33
Less: Partial payment		$480,000.00
		__________
	Net compensation	$133,393.33
		=========

Interest

22.  The applicant is entitled to interest at half judgment rate from the date of the accident (ie 21 March 2018) to the date of judgment and thereafter at judgment rate until the date of payment.

Costs

23.  Costs to follow the event. I order the 1^st and 2^nd respondents to pay the applicant the costs of the assessment of compensation (including all costs reserved), to be taxed if not agreed.

24.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.