SANCHEZ JOHN MICHAEL v. JAI DURGA CORPORATION LTD trading as BIG TREE BAR

DCEC 2374/2023

[2025] HKDC 941

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 2374 OF 2023

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JUDGMENT

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A.  INTRODUCTION

1.  This is an assessment of compensation under the Employees’ Compensation Ordinance (Cap 282) (the “Ordinance”).

2.  The applicant was employed as a kitchen chef by the respondent which operated a bar at Shop 1, G/F, Knutsford Commercial Building, 4-5 Knutsford Terrace, Tsim Sha Tsui, Kowloon (the “Bar”). On 1 April 2023, he suffered burn injuries over his feet and right hand when he was replacing cooking oil in the kitchen of the Bar (the “Accident”).

3.  The present proceedings were commenced on 25 October 2023.

4.  By order dated 28 February 2025, the court entered interlocutory judgment against the respondent with quantum to be assessed. Accordingly, the purpose of this hearing is limited to assessment of compensation payable by the respondent.

B.  THE RESPONDENT’S ABSENCE

5.  The respondent has been absent throughout these proceedings. The applicant’s solicitors have filed an affirmation of service showing that the plaintiff’s skeleton submissions and the hearing bundle for the present assessment hearing have been duly served on the respondent.

6.  Accordingly, I am satisfied that this assessment hearing should proceed notwithstanding the respondent’s absence.

C.  DISCUSSION

7.  The applicant’s heads of claims under the Ordinance are as follows:-

Item	Amount ($)
Section 9 (permanent partial incapacity)	61,440
Section 10 (temporary incapacity)	76,373
Section 10A (medical expenses)	7,220

C1.  Section 9 – Permanent partial incapacity

8.  The applicant only began to work for the respondent from 14 March 2023. According to the Form 2 filed by the respondent dated 2 April 2023 concerning the Accident, the applicant’s monthly salary at the material time was $16,000. This is largely consistent with the Employer’s Return of Remuneration and Pensions for the applicant prepared by the respondent for the period from 14 March 2023 to 31 March 2023 and the evidence of salary paid to the applicant for the same period.

9.  The calculation of monthly earnings is governed by s 11(1)-(2) of the Ordinance as follows:-

“(1) 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 manner as is best calculated to give the rates 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.

……

(2)  Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of the 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.  The majority[1] in 柯永明 訴 經營天基裝飾工程公司的何炳池 [2008] 4 HKLRD 337 held at §§4-7, 36-37 that, for an applicant who was employed for less than 1 month, the monthly earnings to be adopted for the purpose of the Ordinance could be calculated under s 11(1)(b) by referring to the actual earnings received by the applicant during that period, provided that it was practicable to calculate the monthly income from the actual earnings.

11.  Even though the applicant was employed for less than 1 month at the time of the accident, based on his actual salary for the period prior to the Accident, I am satisfied that the relevant monthly earnings of the applicant pursuant to s 11(1)(b) of the Ordinance is $16,000.

12.  According to the Form 7 Certificate of Assessment dated 22 November 2023 issued by the Employees’ Compensation (Ordinary Assessment) Board (the “Form 7”), the applicant suffered injuries in his right hand and both feet resulting in (i) left foot scar and pain; (ii) right foot scar and pain; and (iii) right hand stiffness (the “Injuries”). The Injuries suffered caused a permanent loss of earning capacity of 4%.

13.  As held in Ng Ming Cheong v Mass Transit Railway Corp [1997] HKLRD 1231 at 1236H-J, the Form 7 assessment is conclusive in the absence of an appeal:-

“Whilst we agree that s.16H itself does not state in terms that the Certificate shall constitute conclusive evidence of the matters stated therein, it does not follow that the evidence cannot become conclusive through the appeal procedure not being invoked. Given the clear and comprehensive framework for challenging an assessment, in particular the imposition of the specific time limit for so doing, we agree with Hunter JA’s observation in the Chan Kit case that the legislature's intent is that the assessments are to be final unless appealed within a limited period of time. The comprehensive appeal provisions such as those contained in s.18 are there for a purpose: those provisions are clearly intended to achieve finality. Having regard to the Ordinance as a whole and the purpose for which it was designed, namely to enable employees to obtain compensation for injuries sustained at work reasonably speedily, the importance of finality of assessments which would settle the amount of compensation payable is obvious. Nor would such a consequence take away a party’s recourse to the courts as the respondent sought to submit. That recourse lies in an appeal under s.18 which the respondent has eschewed” (emphasis added).

14.  In any event, given the respondent’s absence, there is no dispute over the assessment in Form 7.

15.  As the Injuries sustained are not provided in the First Schedule, Section 9(1)(b) of the Ordinance provides that:-

“(b) in the case of an injury not specified in the First Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time:

Provided that -

(i) in the case of injury to any part of the body specified in the First Schedule not amounting to the loss of that part, the loss of earning capacity permanently caused by that injury, expressed as a percentage, shall not exceed the appropriate percentage specified in the First Schedule in respect of the loss of such part; …

(ii) in the case of injury not specified in the First Schedule, the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentages specified in that Schedule and to the Note thereto…”

16.  Based on the above, I adopt the 4% loss of earning capacity as assessed in the Form 7.

17.  Hence the compensation to be awarded under Section 9 is as follows:-

$16,000 x 96[2] x 4% = $61,440

C2.  Section 10 – Temporary incapacity

18.  Section 10(1) of the Ordinance provides that:-

“Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned, or a lump sum calculated accordingly, having regard to the probable duration, and probable changes in the degree, of the incapacity. Such periodical payments shall be, or shall be at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident.”

19.  According to the Form 7, the total period of absence from duty necessary as a result of the Injuries is 179 days (1 April 2023 to 19 September 2023, 30 October 2023 to 5 November 2023). According to s 10(2), such assessment is deemed to be the period of total temporary incapacity irrespective of the outcome of the injury.

20.  I accept the applicant’s unchallenged evidence that he only returned to work in about mid-December 2023.

21.  Based on the above, the compensation payable to the applicant under Section 10 of the Ordinance is as follows:-

$16,000 x 4/5 x 179/30 = $76,373.33

C3.  Section 10A – Medical expenses

22.  Under s 10A(1) of the Ordinance:-

“Subject to this Ordinance, if, in any employment, personal injury is caused to an employee by accident occurring on or after the date on which this section comes into operation and arising out of and in the course of his employment his employer shall be liable to pay the medical expenses for the medical treatment in respect of such injury.”

23.  Under s 10A(3):-

“Medical expenses which the employer is liable to pay under subsection (1) shall be payable in accordance with the Third Schedule in respect of the period during which the employee receives medical treatment until the attending registered medical practitioner, registered Chinese medicine practitioner or registered dentist certifies that in his opinion no further treatment is required.”

24.  The amount of compensation is calculated in accordance with the Third Schedule to the Ordinance which provides that (amongst others):-

(1)  Where the applicant is given medical treatment as an in-patient in a hospital, the medical expenses payable would be the total amount of medical expenses incurred in respect of the medical treatment or total amount at the rate of $300 for each day of stay at the hospital (whichever total amount is less).

(2)  Where the applicant is given medical treatment other than as an in-patient in a hospital, the medical expenses payable would be the total amount of medical expenses incurred in respect of the medical treatment or the total amount at the rate of $300 for each day on which medical treatment is given.

25.  From 1 April 2023 to 21 May 2023, the applicant was treated as an in-patient for 51 days at the Queen Elizabeth Hospital (“QEH”). Based on the receipts provided, the total amount of medical expenses incurred during the period is $6,300. This is allowed in full according to the Third Schedule.

26.  From 31 May 2023 to 29 February 2024, the applicant attended QEH for out-patient treatment on 7 occasions. Again, I allow the amount claimed of $620 in full.

27.  The applicant also claims a sum of $380 for consultation and medication at Elitecare Medical Centre on 30 June 2023. Pursuant to the Third Schedule, I award the maximum allowable sum of $300.

28.  Accordingly, the total sum to be awarded under Section 10A is as follows:-

$6,300 + $620 + $300 = $7,220

D.  CONCLUSION

29.  As the applicant agrees to give a credit for a sum of $61,440 already received from the respondent as periodic payment, the remaining sum payable by the respondent is as follows:-

Item	Amount ($)
Section 9 (permanent incapacity)	61,440.00
Section 10 (temporary incapacity)	76,373.33
Section 10A (medical expenses)	7,220.00
LESS: payment received	(61,440.00)
BALANCE:	83,593.33

30.  It is ordered that:-

(1)  The respondent do pay to the plaintiff a sum of $83,593.33;

(2)  Interest be paid at half judgment rate from the date of the Accident (ie 1 April 2023) to the date of judgment and thereafter at judgment rate until payment in full.

(3)  The respondent shall pay the applicant’s costs of the action (including all costs reserved, if any) to be taxed if not agreed, the applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.