YANG BILAN v. KLK FOOD LTD AND ANOTHER

DCEC 22/2023

[2025] HKDC 1472

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 22 OF 2023

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J U D G M E N T

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A.  INTRODUCTION

1.  This is the trial of the application of the Applicant, Ms Yang Bilan, under the Employees’ Compensation Ordinance (“ECO”)  for compensation under Sections 9, 10, and 10A thereof (“the Application”).

2.  The 1^st Respondent has been absent throughout the proceedings.

3.  By an order dated 18 June 2024, the 2^nd Respondent joined the in the proceeding to contest the issue of quantum. 

4.  The parties have obtained a single joint medical report by specialist in Orthopedics and Traumatology, Dr. Tsoi Chi-Wah, Danny dated 1 November 2024 (“the Report”).

B.  BACKGROUND

5.  The following background facts are not in dispute.

6.  The Applicant was a cleaner cum general worker employed by the 1^st Respondent on a part time basis.

7.  On 16 March 2021 at or around 7 p.m., while in the course of employment with the 1^st Respondent, the Applicant was assigned to use and electric pump to transfer hot cooking oil and liquid out of a stainless steel container of about 1 meter in height at the food factory of the 1^st Respondent situated at Workshop 19H, Wing King Industrial Building, 4-6 Wing King Road, Kwai Chung, New Territories, Hong Kong.

8.  During the pumping process, the tube connecting the outlet of the pump suddenly detached, causing the pump to spin out of control outside the stainless steel container. As a result, hot cooking oil and liquid splashed in all directions. The vigorous motion of the pump also caused the container to tilt and fall to the ground.

9.  Consequently, the hot cooking oil and liquid splashed over the Applicant’ right face, right upper limb and left lower limb (“the Accident”)

10.  Following the Accident, the Applicant attended the A&E Department of Princess Margaret Hospital (PMH)  for emergency treatment.

11.  As a result of the Accident, the Applicant sustained 1% first-degree burn on the right cheek, 3% non-circumferential second-degree burn on right forearm and a 4% non-circumferential second-degree burn on left calf due to the Accident.

12.  The Applicant was transferred to Burn Centre of Kwong Wah Hospital (KWH)  for further treatment and admitted to public acute ward from 16 March until 6 April 2021.

13.  On 24 August 2022, a Certificate of Assessment was issued by the Employees’ Compensation (Ordinary Assessment)  Board (“Form 7”), in which the following assessment was made by the Board:

(a)  The Applicant sustained injury in the left leg resulting left leg scar pain;

(b)  Periods of absence from duty was assessed to be from 16 March 2021 to 17 January 2022;

(c)  Loss of earning capacity permanently caused by the injury was 0.25%.

14.  Upon the Applicant’s appeal, the assessment was reviewed. Under the Certificate of Review of Assessment (“Form 9”), the Board cancelled the Form 7 and made the following assessments:

(a)  The Applicant sustained multiple injuries resulting in left leg scar pain and right forearm scar pain;

(b)  Periods of absence from duty was assessed to be from 16 March 2021 to 17 January 2022;

(c)  Loss of earning capacity permanently caused by the injury was assessed at 1%.

C.  Assessment of Damages

15.  The following issues on quantum are before this Court:  

(a)  What was the average monthly earnings of the Applicant at the material time?

(b)  On what basis should the loss of earning capacity be calculated?

C1.  Average monthly earnings of the Applicant at the material time

16.  Prior to the Accident, the Applicant was employed concurrently in two positions: as a part-time cleaner and general worker with the 1^st Respondent, and as a full-time marble worker with another company named “鴻光雲石有限公司”.

17.  In light of the Applicant’s part-time status with the 1^st Respondent, s.11(7)  of the ECO is applicable for the assessment of compensation. Pursuant to this provision, earnings under different concurrent employment contracts should be aggregated. The 2^nd Respondent did not dispute the Applicant’s entitlement to such calculation.

18.  The Applicant worked for only 8 days prior to the Accident, and she was paid HK$1,140 (at HK$60 per hour)  for 19 hours of work from 7 March 2021 to 16 March 2021 (a period of 10 days). Since the Applicant was paid by the hour for her part-time job and her working hour fluctuated even during her days at work, the parties agreed that the best one could do with the available evidence was to make an assessment on the basis of s.11(2)  of the ECO.  19 hours of work in a period of 10 days translates into approximately 57 hours of work in a 30 days month. Therefore, the estimated monthly income for this part-time job would be 57 hours x $60/hour = HK$3,420 per month.

19.  The Applicant contends that her daily wage for the full-time work should be assessed at HK$850, but according to the employment contract, her daily wage was HK$800. In her oral evidence, the Applicant explained that the HK$850 figure includes “OT money” (overtime pay), which is not stipulated in the employment contract.

20.  The employment contract further provides that the Applicant’s working hours were from 9:00 am to 6:00 pm, with an unpaid lunch break from 12:00 pm to 1:00 pm. The Applicant was also contracted to work six days per week, with salary to be paid monthly on the 31^st of each month.

21.  The evidence indicates that in practice, neither the payment amount nor the payment date and frequency were consistent with the terms set out in the employment contract.

22.  The parties submitted six cheques with the following dates and amounts:

Cheque date	Amount (HK$)
9/04/2020	36,000
2/07/2020	57,000
13/08/2020	23,200
13/08/2020	19,200
25/08/2020	45,801
11/10/2020	19,550

23.  Mr. Chow submits that some of these figures were divisible by HK$800, therefore supporting the Respondent’s case that the Applicant’s daily wage was HK$800.   However, not all the figures are divisible by HK800.  For instance, HK19,550 is divisible by HK$850, and HK$57,000 and HK45,801 are neither divisible by HK800 nor HK$850. 

24.  As to this, the Applicant explained that the employer would sometimes delay payment for two to three months, so there would be more than one payments made in some of the months.

25.  In her oral evidence, the Applicant also described how overtime (“OT”)  payments were calculated.  According to her, if there was an OT of less than 4 hours, then the OT payment would be calculated on the basis of 2 hours of work. The OT payment would be calculated on the basis of an extra daily wage if the OT was for 4 hours.  Mr. Chow also asked whether the Applicant had ever worked for 29 days in a month, to which she responded “都有噶，有時候返31 天嘅。”

26.  Having considered the available evidence and the Applicant’s testimony, the Court accepts that it is more probable than not that the Applicant did work overtime as claimed.  The pattern of irregular payments is consistent with the Applicant’s explanation that her actual earnings exceeded the contractual salary.

27.  With respect to the number of working days, and based on the daily attendance record, the parties agreed that the Applicant worked an average of 21.6 days per month (rounded up to 22 days per month)  in the 12 months preceding the Accident.

28.  Accordingly, for the purpose of assessing average monthly earnings under s.11(7)  of the ECO, it is appropriate to include both the regular and overtime earnings, aggregating income from all concurrent employment.

Part time cleaner cum general worker:	HK$3,420
Full time marble worker:	HK$18,700 (HKD850 x 22 days)
Total monthly salary:	HK$22,120

29.  The Court shall therefore adopt the figure of HK$22,120 as the Applicant’s monthly salary at the time of the Accident.

C2.  On what basis should the loss of earning capacity be calculated?

30.  The Applicant was 47 years old, born in PRC, married with 2 children aged 19 and 21. She received education in PRC up until Form 3 and is the main breadwinner of the family.

31.  In Form 9, it was recorded that the Applicant was assessed to have suffered a 0.5% loss of earning capacity, whereas the Report indicated a 3% loss.   As the Applicant has appealed against the Form 9, it is trite that this Court is not bound by the assessment as recorded in the Form 9 and has to form its own view as to the appropriate loss of earning capacity with reference to all of the available evidence.  See Cheung Man Kit v Chiu Lok Yan t/a New Luen Lik Engineering Co [2024] HKDC 330 at paras.22-24.

32.  Further, as explained by the Court of Appeal in Tang Shau Tsan v Wealthy Construction Company Limited CACV 58/2000, 5 April 2000 at para.11, the Court is not bound to accept the figure proposed by the expert in the Report.  See further Yu Chun Kit v Wong Wing Yau (Bankrupt)  formerly t/a Viewbound Cargo Service Co & Anor, DCEC 1787/2015, 5 June 2017 at para.29.

33.  The Applicant testified that the Accident was still affecting her ability to work, as scar affected her ability to do manual work, stating that “清潔 ok 其他粗重嘢就唔得噶喇”and“攞嘢都唔係好方便”.  

34.  The record shows that after the accident from October 2021 to June 2023 the Applicant had worked on average 21.6 days per month, which is similar to the Applicant’s pre-injury average working days per month.   Based on this, the 2^nd Respondent submitted that the Applicant had only suffered minimal loss of earning capacity. 

35.  Having considered the evidence, I am of the view that the assessment as contained in the Form 9 is on the low side.  The Applicant complains of numbness and soreness over the right elbow scar when carrying heavy weight.   She also said that the scar prevented her from flexing fully her right elbow joint, limiting her scope of movement.  The Applicant, while testifying in Court, explained how the scars from her injuries had limited her movement and flexibility.   

36.  I am of the view that the Accident has affected the Applicant’s ability to work adversely, as she could not move with the same flexibility as she could before the Accident without pain.   As the Applicant testified, as a result of the Accident, she was prevented from engaging in more physically demanding tasks that she was previously able to perform. In all the circumstances, I consider the 3% loss of earning capacity as assessed in the Report to be reasonable, and should be adopted.

C3.  The period of sick leave which the Applicant is entitled to claim for

37.  As regards the Applicant’s entitlement to sick leave, the Court is presented with three options based on the available records:

(a)  The Report states that the Applicant should be able to resume her pre-injury job(s)  after 28 June 2021, with totals 105 days of sick leave;

(b)  Form 9, which included 17 January 2022, provides for 106 days of sick leave; and

(c)  The Applicant was granted sick leave by treating doctors from 16 March to 28 June 2021, as well as on 17 January 2022 and 18 July 2022, amounting to a total of 107 days of sick leave.

38.  The differences among the three options are minimal. This Court accepts that the sick leave periods allowed by treating doctors are appropriate and allows the Applicant’s claim of 107 days of sick leave.

D4.  Section 9 of the ECO

39.  As the Applicant was 43 years old at the time of the Accident, the amount of Section 9 ECO compensation payable by the 1^st Respondent to the Applicant should be calculated as follows:

  HK$22,120 x 3% x 72 = HK$47,779.20

D5.  Section 10 of the ECO

40.  As for the Section 10 ECO compensation, it should be calculated as follows:

  HK$22,120 x 12 x 107/365 x 4/5 = HK$62,251.13

D6.  Section 10A of the ECO

41.  As for the Section 10A ECO compensation, which relates to medical expenses, the Applicant claims for HK$4,949 (after giving credit to payments previously received)  in line with the Third Schedule of the ECO.   Such sum shall be awarded accordingly.

D7.  Total amount of compensation

42.  By reason of the aforesaid, and after the Applicant has fairly given credit to the pos-accident payment from the 1^st Respondent of HK$2,640, the total amount of compensation which the 1^st Respondent should pay the Applicant is HK$112,339.33:

	Amount (HK$)
Section 9	HK$47,779.20
Section 10	HK$62,251.13
Section 10A	HK$4,949.00
Less:  Advanced payment	- HK$2,640.00
TOTAL:	HK$112,339.33

E.  Disposition and Costs

43.  I order the 1^st Respondent to pay HK$112,339.33 to the Applicant.

44.  The Applicant is entitled to interest at half judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate until the date of payment.

45.  As to costs, I shall make an order nisi that:-

(a)  The 1^st Respondent should pay the Applicant’s and the 2^nd Respondent’s costs of the action, with certificate for counsel, to be taxed if not agreed.   

(b)  There shall be no order as to costs as between the Applicant and the 2^nd Respondent.

46.  The costs order nisi shall become absolute in the absence of an application to vary the same within 14 days.

47.  I thank Mr. Yip and Mr. Chow for their assistance.