LEE CHI CHING OWEN v. MOUNTAIN INDUSTRIAL DEVELOPMENT CO., LTD AND ANOTHER

DCEC 2657/2021

[2025] HKDC 1283

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2657 OF 2021

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ASSESSMENT OF COMPENSATION

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Introduction

1.  This is a claim for compensation brought by the applicant, Mr Lee Chi Ching Owen (“AP”), for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”) arising from an accident that occurred on 3 February 2020 while at work.

2.  The AP sustained injuries from the accident and the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) made their first assessment on 18 February 2022 followed by a review on 20 February 2023, the Board remained their assessment that the permanent loss of earning capacity suffered by the AP to be 2%.

3.  The Application was issued on 17 December 2021, which was amended by the Amended Application on 27 September 2023.  The 1^st Respondent (“R1”) was legally represented when filing its Answer to the AP’s Application (“the Answer”) and List of Earnings of the AP (“the LoE”) on 5 August 2022.

4.  As there was no valid employees’ compensation insurance policy in force at the time of the accident, the Employees Compensation Assistance Fund Board (“R2”) joined in these proceedings pursuant to section 25A(a) of the Employees Compensation Assistance Ordinance (Cap 365) to contest the issue of quantum.

5.  Interlocutory judgment on liability was entered against R1 on 2 September 2024 with compensation to be assessed.  R1 was not present at this hearing for assessment but was represented by Mr Ng of Collin Ng & Co, Solicitors.  Mr Ng informed the Court at this hearing for assessment of compensation (“the Hearing”) that he could not contact R1 thus no instruction was given to him.  R1’s case could therefore only be based on the submitted documents.

THE EVIDENCE

The applicant’s evidence - the accident, injuries and treatment

6.  AP was the only factual witness in the present case.  He submitted his witness statement and testified at the Hearing.

7.  AP was aged 44 years old at the time of the accident and was 49 years old at the Hearing. He was hired by R1 on 29 January 2020 as a metal recycling worker to work at R1’s warehouse at No 159A, DD128, Fung Kong Tsuen, Lau Fau Shan, Yuen Long (“the Warehouse”).  There was no written contract of employment but the Answer filed by R1 showed that it is not disputed that AP was employed by R1 at the time of the accident.

8.  AP averred at around 9:30 a.m. on the date of the accident, he was instructed by a foreman to climb up a wooden ladder to clear away the metal scrap inside a processing machine.  The machine was suddenly turned on while he was climbing down from the ladder, and the vibration from the machine caused the ladder to tip over.  AP thus fell from the ladder and landed on the ground (“the Accident”).  As a result of the Accident, AP suffered injury and pain over upper limb, left shoulder, left hip and calf, right wrist, left wrist and elbow (“the Injuries”).

9.  According to the witness statement of AP, he called for ambulance service immediately after the Accident despite workers on site discouraged him to do so.  Medical report showed that AP was sent to the Accident and Emergency Department at Tin Shui Wai Hospital at 10:40 a.m. with chief complaints of pain over the left shoulder, elbow, wrist and hip.  Medical examination showed tenderness, abrasion and mild muscle stiffness on various parts of AP’s left body without any fractures.  He was hospitalised at the Orthopaedics and Traumatology Department at the Tuen Mun Hospital until 6 February 2020, thereafter received physiotherapy and occupational therapy for rehabilitation training.

10.  AP averred the Accident has left him with chronic conditions such as constant pain and weaknesses on the left side of his body, which led him to at least two major domestic accidents.  The first being an episode of fall on 30 December 2020 (“the 2^nd Accident”) due to his walking instability which led to right wrist abrasion.  And on 19 September 2021, AP’s right index finger was crushed by a door and X-ray revealed tuft fracture of distal phalanx (“the 3^rd Accident”).

11.  The correlation and relevance between the Accident and the subsequent 2^nd and 3^rd Accidents was analysed by the single joint orthopaedic expert in these proceedings, and his findings are to be studied below.

The applicant’s evidence – monthly earnings and related matters

12.  AP commenced employment with R1 on 29 January 2020 and had worked for R1 for less than a week when the Accident occurred. From the LoE of AP filed by R1’s then solicitors, it is not disputed that AP’s basic daily wage was HK$800 despite AP sought to include another HK$50 on food allowance which R1 allegedly supplied on working days.

13.  Given that AP had worked less than a single calendar month since his employment began with the R1, the Court is tasked to ascertain how many working days AP could work each month in order to determine his monthly earnings.  AP’s case is that he could work 30 days each month since AP averred R1’s staff told him they wanted AP to work every day.  On the other hand, R2 is only prepared to accept that AP could have worked at most 22 days each month.

The applicant’s evidence – loss of earning capacity and duration of sick leaves

14.  The Board issued its certificate of assessment on 18 February 2022 via Form 7 which provided for a 2% permanent loss of earning capacity.  The Board thereafter issued its certificate of review of assessment on 20 February 2023 via Form 9 which maintained the same assessment for permanent loss of earning capacity and sick leave from 3 February 2020 to 10 December 2020, thereafter at various periods up to 2 February 2023.

Expert evidence — AP’s injuries and duration of sick leaves

15.  Pursuant to the orders of HHJ Levy and HHJ Alan Kwong made on 31 May 2024 and 30 October 2024 respectively, the following reports were prepared for the purpose of assessment of compensation:

(i)     a single joint expert orthopaedic report was prepared by Dr Tsoi Chi Wah Danny (“Dr Tsoi”) dated 28 June 2024 (“Expert Orthopaedic Report”);

(ii)    a supplemental single joint expert orthopaedic report dated 18 November 2024 (“Supplemental Expert Orthopaedic Report”) by Dr Tsoi;

(iii)   a single joint expert psychiatric report was prepared by Dr Law Wun Tong (“Dr Law”) dated 19 August 2024 (“Expert Psychiatric Report”); and

(iv)  a supplemental single joint expert psychiatric report dated 6 December 2024 (“Supplemental Expert Psychiatric Report”) by Dr Law.

16.  In gist, Dr Tsoi opined that AP suffered from moderate degree of left hip contusion injury, mild degree of left shoulder, minimal left elbow and wrist contusion as a result of the Accident.  He agreed with the Board’s assessment of a 2% whole person impairment for his left shoulder and left hip injuries.  Despite AP was granted intermittent sick leaves from various treating doctors up until the Hearing, Dr Tsoi opined sick leaves from the date of the Accident to the final session of physiotherapy, ie 13 November 2020 should be adequate (ie a total of 285 days).

17.  Dr Tsoi further explained that the soft tissue injury sustained by AP over his left shoulder and left hip should not have caused him the pain or disabilities as alleged, he therefore concluded AP’s complaints was likely a form of psychosomatic pain or somatic manifestation of his psychiatric illness, alternatively, symptom of magnification or exaggeration of disabilities.

18.  Dr Tsoi also concluded in his Supplemental Expert Orthopaedic Report that neither the 2^nd Accident nor 3^rd Accident could be related to the Accident.

19.  In respect of the psychiatric evaluation, Dr Law diagnosed that AP suffered from adjustment disorder that was mainly caused by the Accident and deemed that the prognosis was favourable.  He considered AP has reached maximal medical improvement and could be benefited from another 6 sessions of treatment from the Tuen Mun Mental Health Centre to taper off the medication.  Dr Law assessed the percentage of permanent impairment of whole person as 1% for the adjustment disorder as a result of the Accident, and sick leaves for 3-6 months after the first consultation with psychiatrist was deemed adequate.

20.  Dr Law further commented in the Supplemental Expert Psychiatric Report that AP’s complaints in relation to his physical pain could not be psychosomatic.

ISSUES FOR DETERMINATION

21.  In summary, the main issues that remain for determination are, firstly, what is the amount of AP’s monthly earnings and secondly, the appropriate duration of his sick leaves in assessing the compensation under section 10 of the Ordinance, ie periodical payments at the rate of four-fifths of the difference between the employee’s monthly earnings at the time of the accident and his monthly earnings during the period of temporary incapacity.

The applicant’s monthly earnings

22.  There are two approaches to calculate the applicant’s income, one of which is calculated pursuant to section 11(1)(b) of the Ordinance and the other is under section 11(2) of the Ordinance.

23.  Section 11(1)(b) of the Ordinance is as follows:

“(1) Subject to this section, for the purpose 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.”

24.  Section 11(2) of the Ordinance is as follows:

“(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 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.”

25.  In the case of Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337, the applicant was a woodworker earning a daily wage of $700 and had not yet worked for the respondent for a full month at the time of the accident. The applicant testified and called 3 witnesses which included a medical practitioner whereas the respondent testified but without calling any witnesses.  On appeal, the issue to be determined was whether section 11(1)(b) of the Ordinance should be applied or section 11(2).  The respondent paid a daily wage of $700 to workers doing similar jobs despite there being only 20 working days per month which meant monthly earnings of $14,000 and this was not a matter that was challenged or in issue.

26.  Yeung JA held that a flexible approach should be adopted in interpreting the provisions of the Ordinance, and that there should be flexibility given to the courts so that they can ensure employees will, as far as possible, be given reasonable pecuniary compensation.

27.  Yuen JA held that section 11(2) has been enacted since the Ordinance makes it clear that the basic temporal unit for the calculation of an injured employee is into single months and in any event the Ordinance is applicable to all salaried employees regardless of the unit in which they are paid (ie monthly, weekly, daily) which are then standardized into earnings based on a single month whether under section 11(1) or 11(2).  Yuen JA referred to the case of Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643 where the applicant suffered injuries from an accident that occurred on the very first day of his employment, and Cheung JA considered section 11(2) applicable, Yeung JA considered section 11(1)(a) applicable, whereas Yam J considered section 11(1)(b) applicable.

28.  Yuen JA agreed with the reasoning of Cheung JA in Lai Cheung Kwong (supra) and when considering the situation between sections 11(1) and 11(2), in particular the words “for any lesser period” as per section 11(1)(b), held as follows:

“26.(1) As pointed out above, an employee can be remunerated on a monthly, weekly or daily basis. The amount of work that an employer assigns to an employee within one month, in particular an employee who is paid wages on a weekly or daily basis, is by no means fixed. Employer A may merely give his employee 20 days’ work in a month, whereas Employer B may give 24 or 25 days’ work. The amount of work that Employer A assigns to an employee in a particular month may also differ from that in the preceding or following month. When a worker who is paid a daily wage has been employed for less than one month, there is simply no basis for ascertaining the amount of work that his employer assigns to him, and sheer speculation on this will lead to unfairness. In such a case, there is simply no basis for calculating the employee’s earnings within one month.

       (2) Section 11(2) is designed to overcome the very difficulty stated above. As in the present case, the method of calculation under section 11(1) does not apply as the Applicant had been employed by the Respondent for less than one month. Section 11(2) should apply to the present case, which falls squarely within the scenario covered by that section, namely “[w]here by reason of the shortness of the time during which an employee has been in the employment of his employer … it is impracticable to compute the rate of remuneration of such employee at the date of the accident”. In my view, the Judge should have applied section 11(2) and calculated, on all the evidence before him, the Applicant’s earnings in one month, and then proceeded to work out the compensation payable to him.”

29.  Chung J also held that section 11(1)(b) can be applied but only where the requisite and necessary evidence is available in the case.

“46. In reaching the above conclusion in respect of section 11(1)(b), I am not suggesting that all injured employees who have been employed for less than one month will as a rule be able to rely on that section in calculating their “earnings” for the purposes of Cap 282. Whether those employees may rely on section 11(1)(b) must still depend on whether their remuneration during the pre-injury “lesser” period is such as to render it “practicable” to compute their “monthly remuneration”.

47. If the evidence submitted by the employees does not enable this to be done, their “monthly remuneration” will have to be computed in accordance with section 11(2) (or even section 11(5)).”

30.  In the case of Leung Wai Pong v Tang Hon Kong trading as Kin Wah Decoration Company, DCEC 237/2007, 19 November 2008,  His Honour Judge Lok (as he then was) had the benefit of presiding over a fully contested trial and heard full arguments before him with consideration of both Lai Cheung Kwong (supra) and Or Wing Ming (supra).  As also applicable in the present case, it was held in Leung Wai Pong that:

“19.(i) the methods of assessing the monthly earnings under ss 11(1)(a) and 11(1)(b) are only applicable if the injured worker worked for the same employer for the relevant periods under the said sub-sections. In other words, if the worker injured himself on the first day of his work, his income earned by working for the other employers before the accident is not directly relevant in assessing the worker’s income at the time of the accident (per Cheung JA in Lai Cheung Kwan, paras 6-9 and Yuen JA in Or Wing Ming, para 24);

      (ii) the object of s 11(5) is to provide a minimum protection to an employee in the case that his monthly income is less than the amount prescribed in the statute, and the court should not therefore adopt this figure as the monthly income even if there is not much evidence about the earnings of other comparable workers for assessing the employee’s income under s 11(2) (per Yeung JA in Lai Cheung Kwan, paras 35-37, per Yuen JA in Or Wing Ming, para 26);

      (iii) if the injured worker only worked for a short period of time and there is no practical way to compute the rate of remuneration, the court has to adopt the methods prescribed in s 11(2) to ascertain his monthly earnings, and it is the duty of the court to make such factual finding based on whatever evidence before the court (per Yeung JA in Lai Cheung Kwan, para 37); …”.

31.  In relation to the evidence on this issue, various matters were canvassed when considering the applicant’s witness statement, the relevant documentary evidence and then the applicant’s testimony in their totality.

32.  Firstly, AP’s witness statement did not give details as to his previous employments and his counsel Mr Leung (“Mr Leung”) fairly conceded that there was no documentary evidence substantiating his monthly income during the 12 months’ period before the Accident happened.  The only available tax return of AP for the period of 2016/17 to 2021/22 was that of 2017/2018, which showed AP was employed by 「香港化驗所」as a salesman for three months, earning a totally income of HK$30,000.

33.  Secondly, AP’s witness statement said he commenced employment with R1 from 29 January 2020 and had worked everyday until the date of the Accident, ie a consecutive of 6 working-day in total. According to AP, he was required to work every day without any rest day and he accepted this arrangement.

34.  Contrary to AP’s averment, the LoE filed by R1 indicated that AP had worked for 2 days only, and according to the Answer of R1, AP would only work when he was available.  R1 did not in its Answer indicate any specific number of days it required or expected AP to work per month.

35.  Given the foregoing evidence, I was invited by Mr Leung to find that there was sufficient evidence to establish that AP would have worked on daily basis with minimal leaves, as pursuant to section 11(1)(b) of the Ordinance.

36.  When considering AP’s witness statement in light of the contemporaneous documents, it is quite clear that he failed to show a consistent employment record and objective evidence suggested he was unemployed for years before the Accident. In addition, there was no evidence to show that he had any or any substantive experience in the area of work that he was employed in at the time. On the AP’s own evidence, he was a medical doctor before he migrated to Hong Kong and from the Expert Psychiatric Report, he told Dr Law that he had worked in different trades including decoration and solar panels since 2019.

37.  During the cross-examination at the Hearing, AP displayed an evasive and defensive manner even to some most simple questions put to him.  He was in bare denial to every allegation put to him even when some indisputable documentary evidence was shown to him.  In my judgment, AP was not a reliable witness and inclined to exaggerate his evidence, and I was unable to accept his evidence without giving a pinch of suspicion.  As such, when considering in the context of the overall factual matrix of this case, there is a difficulty in assuming that AP would be willing and/or able to work for every day a month.

38.  I come to the conclusion that the evidence adduced to this court and when considered in the context of the overall factual matrix of this case has not rendered it practicable to apply section 11(1)(b) of the Ordinance.

39.  However, I accepted that AP did actually work for six consecutive days at the time of the Accident and according to Table 7 of the Quarterly Report of Wage and Payroll Statistics (March 2020) published by the Census and Statistics Department (“the Report”), the average daily wages of an operatives (all selected industry sections) was HK$740 and average 26 standard working days per month.  According to the explanatory notes under Section 4 of the Report, “the standard working days per month” is taken as 26 days if an employee works 6 days a week or given 4 rest days a month.  Although I accepted that AP worked consecutively for 6 days since his employment, I bear in mind this was the first week of his employment and in view of the complete absence of supporting evidence about AP’s employment history prior to the Accident, I do not think it would be fair to blindly adopt the average figure based on the Report.

40.  Mr Shek, counsel for R2 (“Mr Shek”), urged the Court to consider the economy downturn at the time of the Accident and thus the unrealistic prospect of full-time employment for AP.  Mr Shek in his closing submissions viewed the figure of 22 days of working day should be adopted based on the findings made by Recorder Paul Shieh SC in Chan Leung Sing v Ng Keung & Anor, HCPI 3/2012, 27 August 2015, where the applicant was a welder.  Considering the difference in the job natures of a construction worker and metal recycling worker, I am of the view that those working in the former industry has more fluctuating job opportunities when comparing to the recycling industry. I therefore consider a figure of 23 working days per month would be a fair and realistic figure, which implies working 5 days a week with an additional half day on alternate Saturdays.

41.  Given the foregoing matters, I come to the conclusion that based on the evidence before this court that I should apply section 11(2) of the Ordinance. I calculate the AP’s earnings on the basis of a daily wage of $850 for 23 working days a month and arrive at the monthly earnings figure of HK$19,550.00.

The appropriate duration of sick leaves

42.  AP and R2 agreed on Dr Tsoi’s opinion that AP’s sick leave in relation to his orthopaedic condition should have ended by 13 November 2020, ie a total of 285 days.  R2 contended that the lower end of sick leave, ie 90 days suggested by Dr Law should be sufficient to reflect AP’s psychiatric condition, and thus a total of 375 days of sick leave was deemed appropriate.  On the other hand, Mr Leung submitted the Court should adopt 180 days, which is the maximum days of sick leave recommended by Dr Law.

43.  As explained in the foregoing paragraphs, I do not consider AP is a credible witness demonstrated by his bare denial in almost every aspect of documented medical records.  I borne in mind of Dr Law’s observation that there was notable improvement in AP’s mental condition just one month after he began psychiatric treatment, his overall tendency in exaggeration of his conditions and unwillingness in accepting improvement in his psychiatric condition.

44.  To allude to the unsatisfactory and evasive oral evidence given by AP, I consider the appropriate sick leave for the psychiatric condition suffered by AP should be 3 months as contented by R2.

QUANTUM

45.  The following figures are to be used for the purpose of computing compensation of AP under section 9, 10 and 10A of the Ordinance:

Age of Accident: 44

Appropriate multiplier: 72 months

Daily wages: HK$850.00

Number of working days per month: 23

Monthly income: HK$19,550.00

Loss of Earning Capacity: 2%

Sick leave period: 375 days

Section 9 compensation

46.  Under section 9 of the Ordinance, AP shall be awarded compensation in the following amount:

$19,550 x 72 months x 2% = HK$28,152.00

Section 10 compensation

47.  Under section 10 of the Ordinance, the AP shall be awarded compensation in the following amount:

$19,550 x (375/30) months x 4/5 = HK$195,500.00

Section 10A medical expenses

48.  Under section 10A of the Ordinance, the applicant shall be awarded payment for the agreed medical expenses agreed between AP and R2 at HK$23.00.

SUMMARY

49.  The total compensation awarded to AP is therefore at:

HK$28,152.00 + HK$195,500.00 + HK23.00

= HK$223,675.00

50.  AP is entitled to interest at half judgment rate from the date of the Accident to the date of assessment, thereafter at judgment rate until the date of full payment.

51.  I make a costs order nisi that R1 do pay AP’s costs in the present proceedings (including all costs previously reserved) to be taxed if not agreed, with certificate for counsel.  There be no order as to costs between the AP and R2 and the AP’s own costs shall be assessed according to the Legal Aid Regulations.  Regarding the costs between R1 and R2, there be an order nisi that R2’s costs of the assessment since its joinder on 15 September 2023 shall be borne by R1, with certificate for counsel, to be taxed if not agreed.

52.  I thank counsel for their assistance.