LIMBU TIKA PRASAD v. GURUNG GUMAN SINGH trading as T & K UNITED

DCEC 1340/2023

[2025] HKDC 1321

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1340 OF 2023

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IN THE MATTER OF AN APPLICATION BETWEEN

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ASSESSMENT OF COMPENSATION

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1.  On 9 April 2022, whilst in the employment of the Respondent as a slipform erector, the Applicant was instructed to clear waste materials and to cover up a slab opening on the floor with a wood panel on 30^th Floor, North, Hopewell Centre II, Wan Chai, Hong Kong. As he stepped on the empty sack and the building debris on the ground next to the slab opening, he fell through the opening and got stuck in the opening on the 29^th floor, which was about 10 feet below the 30^th floor (“Accident”). It was later discovered that the slab opening was in fact larger than it seemed as it was covered by the sack and the debris. The Applicant was found to have multiple abrasions wounds over his lower back. Upon further treatments, the Applicant was found to have suffered loss of lordosis and disc desiccation, prolapse intervertebral discs and neural foramina at multiple levels and soft tissue edema suggestive of resolving hematoma.

2.  This is the Applicant’s application pursuant to the Employees’ Compensation Ordinance (Cap 282) (“ECO”) for compensation under ss 9, 10, and 10A thereof.

3.  The Respondent did not take part in these proceedings. Interlocutory judgment on liability was granted on 20 December 2024. Before the Court is the assessment of compensation and damages.

4.  The Applicant has filed one witness statement for himself. He did not call any other witness. All medical reports are produced without calling the makers.

5.  As a result of the Accident, the Applicant suffered injury to his lower back. On 24 May 2023, the Employees’ Compensation (Ordinary Assessment) Board (“Board”) certified that his loss of earning capacity permanently caused by the injury is 2%. On review, the Board revised such percentage to 9% on 23 August 2023 (“Form 9”).

6.  The Board also certified periods of the Applicant’s absence from duty totaling 488 days.

7.  In the absence of an appeal pursuant to section 18 of the ECO, the Form 9 provides conclusive evidence on the Applicant’s loss of earning capacity and the reasonable sick leave for the purpose of calculating his compensation under the ECO: Ng Ming Cheong v Mass Transit Railway Corporation[1].

THE ASSESSMENT

(1)  The Applicant’s earnings

8.  In determining the employee’s monthly earnings at the time of the Accident, s 11(1) of the ECO provides:-

“11(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) 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.”

9.  The Applicant was employed by the Respondent since 27 April 2021. He was paid $1,100 per day, with overtime pay at $165 per hour and statutory holiday pay at $900.00 per day. According to the Respondent’s record, the Applicant’s own MPF contribution was made at $50 per working day and $25 for each half day.

10.  The Applicant testified at trial and explained to the Court the handwritten records he kept that showed the number of working days and his MPF contribution for each respective month. Having considered his evidence, the wage payment lists prepared by the Respondent and the records and statements of the Applicant’s bank account, I accept that for the 12-month prior to the Accident, the Applicant’s earnings including his own MPF contribution are as follows:

Month	No. of working days	MPF Contribution	Earnings net of MPF	Earnings including MPF
Apr 2021	4	$200.00	$4,335.00	$4,535.00
May 2021	23.5	$1,175.00	$29,555.00	$30,730.00
Jun 2021	21	$1,050.00	$24,970.00	$26,020.00
Jul 2021	18.5	$925.00	$19,425.00	$20,350.00
Aug 2021	16	$800.00	$13,500.00	$14,300.00
Sept 2021	11	$550.00	$15,700.00	$16,250.00
Oct 2021	14	$700.00	$15,600.00	$16,300.00
Nov 2021	21	$1,050.00	$23,205.00	$24,255.00
Dec 2021	15.5	$775.00	$17,175.00	$17,950.00
Jan 2022	15.5	$775.00	$16,440.00	$17,215.00
Feb 2022	14	$700.00	$19,125.00	$19,825.00
Mar 2022	18	$900.00	$19,177.50	$20,077.50
Total:				$227,807.50 =========

11.  Based on the above, the average of the Applicant’s total earnings for the previous 12 months would be $18,983.96 per month.

12.  For the month immediately preceding the Accident, i.e. March 2022, the Applicant received $19,177.50 as wages for a total of 18 days according to the Applicant’s own handwritten record. Adding the Applicant’s MPF contribution of $50 per day, his earnings in March 2022 would be:

  $19,177.50 + $50 x 18 days = $20,077.50

13.  Pursuant to s 11(1) of the ECO, $20,077.50 would be adopted as the Applicant’s monthly earnings at the time of the Accident.

(2)  Section 9

14.  The Applicant was born on 20 September 1979 and was aged 42 at the time of the Accident. According to s 7(1)(b) of the ECO, the amount of compensation should be assessed with reference to 72 months’ earnings. As mentioned above, the loss of earning capacity is 9%.  Thus, the compensation under s 9 is:

$20,077.50 x 72 months x 9%= $130,102.20

(3)  Section 10

15.  As certified by the Board, after the Accident, the Applicant was granted sick leave for a total of 488 days. The amount of compensation under s 10 is:

$20,077.50 x 488/30 x 4/5 = $261,275.20

(4)  Section 10A

16.  Mr Tsang, counsel for the Applicant, helpfully summarized the medical expenses incurred by the Applicant in his Opening Submissions. Applying the daily cap of $300 under paragraph 2 of Schedule 3 of the ECO for expenses incurred on 28 April, 12 May, 8 June, 7 July, 8 July 2022, 13 March, 11 April, 11 May, 8 June, 9 June, 7 July and 4 August 2023, the Applicant claims a total sum of $7,945 under s 10A of the ECO which I find to be reasonable and would therefore allow it.

(5)  Advance Payments

17.  The Applicant has received advanced payments from the Respondent for a total sum of $219,324.24 which would be deducted from the total amount of compensation awarded.

18.  By reason of the above, the amount of compensation awarded to the Applicant under ss 9, 10 and 10A of the ECO are:-

S 9	$20,077.50 x 72 months x 9%	$130,102.20
S 10	$20,077.50 x 488/30 x 4/5	$261,275.20
S 10A		$7,945.00
	Total:	$399,322.40
	LESS advanced payment:	($219,324.24)
	Total:	$179,998.16

19.  The Applicant is entitled to interest at half judgment rate from the date of the Accident (i.e. 9 April 2022) to the date of this judgment and thereafter at judgment rate until payment in full.

20.  I also make a costs order nisi that the Respondent do pay the costs of the Applicant (including all costs reserved, if any), with certificate for counsel, to be taxed if not agreed. The Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.