SAE CHUA SARID v. LUNG SHING LOGISTRICS (CHINA HK) LTD

DCEC 2108/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2108 OF 2013

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

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

ASSESSMENT OF COMPENSATION

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

Background

1. The applicant (“Chua”) filed his application under the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”) for compensation for injury at work on 27 February 2012 against his employer, the respondent (“Lung Shing”). On 25 July 2014, judgment on liability for compensation to be assessed was entered against Lung Shing.

2. Lung Shing has been and still is absent today.  On the basis of the affirmation of service filed on behalf of Chua, I am satisfied that previous orders, documents and notice of today’s hearing have been served.  Chua was allowed to proceed with proving his claim. Chua gave evidence.

Injuries

3. As a result of the accident, Chua suffered injuries including swelling and tenderness over left middle finger and ring finger.  He sought treatment from hospital and Chinese medicine practitioners on various dates.

Pre-accident income

4. At the time of the accident, Chua was employed by Lung Shing as a delivery worker at a daily wages of $500.  His job duties included unloading and loading goods into the containers.  He was paid at $700 per day if the goods were mushrooms.  There was no written employment contract between Chua and Lung Shing.  Salary was paid to Chua in cash after he had finished work each day.  No receipts were signed.

5. Lung Shing did not lodge any Form 2 to the Labour Department after the accident.  Chua had secured the job as a delivery worker with Lung Shing through advertisement issued by Lung Shing in Oriental Daily News on 15 February 2012 (“the said advertisement”).  The amount of daily wages stated in the said advertisement was $500 which is consistent with Chua’s evidence that he was paid at $500 per day by Lung Shing.

6. Although Lung Shing did not specify the company name in the said advertisement, the contact phone number 23971206 in the said advertisement was the same phone number as shown on the business card of Lung Shing.

7. Chua commenced employment with the respondent since February 2012 and he had worked for the respondent as a delivery worker for less than a month before the accident.  Due to the shortness of time that Chua had been in the employment of the Lung Shing prior to the accident, the average monthly amount of Chua’s earnings during the 12 months prior to the accident pursuant to section 11(2) of the Ordinance should be considered.

8. For the twelve-month period prior to the accident, Chua had worked as a delivery worker for various other transportation companies on a casual basis including, Whole Win Warehouse (Trans) Co Ltd (“Whole Win”) and USL Transportation Limited (“USL”).

9. Both Whole Win and USL paid Chua at $600 per day.  Payment were made in cash and no receipts were signed.  Both Whole Win and USL confirmed Chua’s period of employment with them and his daily wages in writing. 

10. During the twelve months prior to the accident, Chua worked for 26 days a month as a delivery worker for various transportation companies on a casual basis with average daily wages of $500.  Under section 11(2) of the Ordinance, I find Chua’s average monthly earnings at the time of the accident were $500 x 26 days = $13,000.

Loss of earning capacity

Form 9

11. Chua has been assessed by the Medial Assessment Board (“MAB”) on review on 6 June 2013.  In Form 9 issued on 20 June 2014, the MAB assessed Chua’s loss of earning capacity to be 1% for left hand injury resulting in pain and numbness at left index figure and middle finger.

Section 18 Appeal

12. Chua accepted the said assessment at 1% for assessment of compensation in these proceedings.  Pursuant to the order made by His Honour Judge Ko on 25 July 2014, leave was granted to Chua to withdraw his appeal made against the MAB’s assessment.

Section 9 compensation

13. Chua was born on 5 February 1979 and was 33 years old at the time of the accident.  Pursuant to section 7(1)(a) of the Ordinance, the compensation under section 9 shall be $13,000 x 1% x 96 = $12,480.

Section 10 compensation

14. Sick leave given from 27 February 2012 to 14 April 2012 and from 16 April 2012 to 21 April 2012 for 54 days was certified by the MAB to be necessary as a result of the injury.  Compensation under section 10 shall be $13,000 x 4/5 x 54/30 = $18,720.

Section 10A compensation

15. I accept Chua has incurred the following medical expenses as a result of the accident:-

Treatment fees at the Accident & Emergency
Department of POH ($100 x 2):	HK$200.00
Treatment fees at the Accident & Emergency
Department of PMH ($100 x 2)	HK$200.00
Treatment fees at Registered Chinese Medicine
Practitioners’ Clinics ($200 + $180 x 14)	HK$2,720.00
	HK$3,120.00
	==========

Deduction

16. Chua confirmed that he had received a total sum of $900 from Lung Shing for reimbursement of the amount of medical expenses that he had incurred after the accident.  The balance compensation should therefore be $3,120 - $900 = $2,220.

Summary

17. In summary:-

Section 9 compensation	HK$12,480.00
Section 10 compensation	HK$18,720.00
Section 10A compensation	HK$2,220.00
	HK$33,420.00
	===========

Conclusion

18. Compensation is assessed in the sum of HK$33,420.  Interest runs at half judgment rate from the date of accident until today and thereafter at the judgment rate until full payment. Lung Shing has already been ordered to pay costs on liability up to the date of interlocutory judgment.  I order that Lung Shing shall also pay costs of this action since then including the costs of these assessment proceedings.  Costs shall be taxed, if not agreed.  Chua’s own costs shall be taxed in accordance with the Legal Aid Regulations.