LAW HOO KAI v. TSE TSZ KIT t/a 隱世貳館

DCEC 1246/2018

[2019] HKDC 1367

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1246 OF 2018

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IN THE MATTER OF AN APPLICATION BETWEEN

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ASSESSMENT OF COMPENSATION

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1.  An interlocutory judgment on liability having been entered on 19 October 2018 against the respondent in this application, the matter now comes before this court for assessment of compensation.

2.  The respondent was absent in this Assessment. By the 6^th and 7^th Affirmations of Chan Yu Tik respectively affirmed on 28 August 2019 and 8 October 2019, I am satisfied that the respondent has been duly served with the Order dated 26 July 2019 fixing this hearing date for the Assessment, the Hearing Bundle and the Applicant’s Opening Submission and List of Authorities. In fact, the respondent has failed to file and serve its Answer and has been absent in all the subsequent interlocutory hearings. In the circumstances, I am satisfied that this Assessment should proceed in the respondent’s absence.

3.  The applicant gives evidence which is unchallenged. I accept his evidence.

Background, the incident and the applicant’s injuries

4.  The applicant is now 65 years old and was 63 at the time of the injury. He is a very experienced dim sum chef having worked as such for over 35 years. In the last 15 years, his work duties also entailed managing a team of dim sum chefs.

5.  Since 1 July 2017, the applicant was employed as a dim sum chef in the Dai Pai Dong at Pok Hong Estate Cooked Food Stalls operated by the respondent. He also managed 2 dim sum chefs there. The working hours were 2:30 am to 2 pm each day and 7 days a week. His monthly salary was HK$28,000. The applicant quitted the job at the end of July 2017 as the working hours were too long and without holidays while the pay was low. Several days later, the applicant was asked to return. After some negotiations and with an agreed increase in his salary to HK$30,000 a month and other better terms, the applicant returned to work for the respondent since 16 August 2017.

6.  On 6 September 2017, one Ah Cheong, an ex-employee of the respondent came to the Dai Pai Dong again with some rage, after several previous fruitless attempts, to collect salary owed by the respondent to him. In the ensuing tumult Ah Cheong fisted the applicant on the chest causing him to fall sideways with his outstretched right hand hitting the ground first. The applicant called the police and was taken to the Prince of Wales Hospital.

7.  Examination by the Department of Orthopaedics and Traumatology there revealed there was pain and swelling over the anatomical snuff box and over scaphoid region of the applicant’s right wrist. Radiographs showed cortical break of the scaphoid of the right wrist. Computed tomography showed a linear fracture over dorsal aspect of the right scaphoid bone. The fracture measures 5 mm with minimal anterior displacement. The applicant was conservatively treated. He was hospitalized for 4 days. He was then given a total of 45 days of sick leave, from 6 September to 20 October 2017.

The monthly earnings of the applicant

8.  As above mentioned, which I find, the monthly salary agreed between the applicant and the respondent at the time of the injury was HK$30,000. I also accept the applicant’s evidence that he was provided with 2 meals a day in the employment with the respondent, valued at HK$35 a meal. As the applicant has worked for the respondent for less than a month and in the circumstances, I hold that Section 11(1)(b) of Employees’ Compensation Ordinance Cap. 282 (“the Ordinance”) is applicable and am satisfied that his monthly earnings can and should be computed by adopting the parties’ agreed monthly salary and including the value of the meals (Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337; Section 3 of the Ordinance).

9.  Thus, the applicant’s monthly earnings for the purpose of the Ordinance was HK$30,000 + (HK$35 x 2 x 30) = HK$32,100.

Compensation under Section 9

10.  Section 9 (1)(b) of the Ordinance provides:-

“(1) …where permanent partial incapacity results from the injury the amount of compensation shall be –

…

(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”

11.  Since the applicant’s injury is not specified in the First Schedule of the Ordinance, the percentage of the compensation is proportionate to the loss of earning capacity caused by the injury.

12.  The Employees’ Compensation (Ordinary Assessment) Board by a Certificate of Review of Assessment issued on 6 March 2019 certified that the applicant’s loss of earning capacity permanently caused by the said injury was 2%.  Under Section 16H of the Ordinance, the said certificate is evidence of the matters stated therein; and obviously there was no appeal under Section 18 of the Ordinance, the stated 2% shall be the percentage applicable.

13.  The applicant’s Section 9 compensation is 2% of the compensation which would have been payable to him in case of permanent total incapacity as calculated under Section 7.  Subsection 1(c) thereof is applicable to the applicant:-

“(1) Where permanent total incapacity results from the injury, the amount of compensation shall be—

(a) …

(b) …

(c) in the case of an employee of or over 56 years of age at the time of the accident, a lump sum equal to 48 months’ earnings or 48 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(c) specified in the first column of that Schedule, whichever is the less.”

14.  As the applicant’s monthly earnings were more than the amount in the Sixth Schedule (as on the date of injury) opposite Section 7(1)(c), which was HK$28,360, the lesser amount of HK$28,360 is to be used.  Thus, the applicant’s Section 9 compensation is: HK$28,360 x 48 x 2% = HK$27,226.

Compensation under Section 10

15.  The relevant part of Section 10 of the Ordinance provides:-

“10. Compensation in case of temporary incapacity

(1) 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.
(Amended 55 of 1969 s 10; 76 of 1982 s 7; 67 of 1996 s 3)

(2) For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury. (Added 55 of 1969 s 10. Amended 31 of 1985 s 2; 16 of 2006 s 13)”

16.  The said Certificate of Review of Assessment stated that the period of absence from duty necessary as a result of the said injury was from 6 September to 20 October 2017 – 45 days.  The applicant’s compensation under Section 10 therefore is HK$32,100 x 45/30 x 4/5 = HK$38,520.

Medical expenses under Section 10A

17.  I accept the applicant’s evidence that he has incurred medical expenses of HK$520 as a result of the said injury.  The respondent is liable to pay the applicant the same under Section 10A of the Ordinance.

Summary of Assessment and Disposition

18.  In the premises, I assess the compensation as follows:-

Under Section 9	HK$27,226
Under Section 10	HK$38,520
Under Section 10A	HK$520
Total:	HK$66,266

19.  I accept the applicant’s uncontested evidence that none of the above has been paid by the respondent to him and thus order that judgment be entered against the respondent in the amount of HK$66,266, with interest thereon at half judgment rate calculated from the date of the injury to the date of this Assessment and then after at judgment rate to the date of full payment.

20.  The respondent shall pay the applicant the costs of this Assessment and the applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

21.  Lastly, I thank Ms Chan for her helpful assistance to the Court.