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DCEC 1597/2018
[2020] HKDC 27
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO 1597 OF 2018
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| IN THE MATTER OF AN APPLICATION BETWEEN |
|
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AHMAD BILAL |
Applicant |
and |
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KWAN WING LOK (Bankrupt) |
1st Respondent
(Discontinued) |
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DAL DESIGN OFFICE LIMITED |
2nd Respondent |
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Before: Deputy District Judge David Chan in Court
Date of Hearing: 6 January 2020
Date of Assessment of Compensation: 13 January 2020
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ASSESSMENT OF COMPENSATION
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Introduction
1. This is the assessment of the applicant’s claims under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (the “ECO”). His claims stemmed from an accident which happened on 23 April 2018 (the “Accident”).
2. Originally, the applicant claimed against both the 1st and 2nd respondents, pleading that either one or both of them were his employer at the time of the Accident. From the company searches conducted on the 2nd respondent, the 1st respondent was its founder and sole director until 10 October 2018 when he resigned from the post. Subsequently, a bankruptcy order was made against the 1st respondent on 16 October 2018.[1]
3. The 1st respondent acted in person throughout these proceedings, whilst the 2nd respondent have neither made an appearance in any of the previous court hearings nor filed any documents. Despite that the 1st respondent was the director of the 2nd respondent at the early stages of these proceedings, the requirement under Order 5A, rule 2 of the Rules of the District Court (“RDC”) was never complied with for him to represent the 2nd respondent. As such, albeit that in his Answer and the witness statement he did try to put forward a case for the 2nd respondent, it was a futile effort. In the absence of an Answer from the 2nd respondent, interlocutory judgment on liability was entered on 4 December 2019 in favour of the applicant against the 2nd respondent.[2]
4. As to the 1st respondent, the applicant’s claim against him was discontinued on 27 December 2019 with no order as to costs between them.[3]
5. In light of the above, what remains for this court to deal with is the assessment of compensation that the applicant is entitled to receive from the 2nd respondent. The trial originally set down for 6 January 2020 was proceeded with for assessment of compensation.[4]
6. At the hearing on 6 January 2020, the applicant was represented by counsel Mr Andrew Leung (“Mr Leung”). The 2nd respondent was unrepresented and absent.
7. An affirmation of service dated 25 November 2019 was filed by the applicant’s solicitors, showing that the Order of HH Judge Levy dated 17 September 2019 which sets out, amongst other directions, the date of this trial hearing, was served on the 2nd respondent by registered post[5] and by leaving at its registered office on 15 October 2019[6], and to the Registrar of Companies by registered post on 16 October 2019. At the hearing, Mr Leung confirmed to the court that the Assessment Bundle and the written opening statement were served on the 2nd respondent by leaving on 3 January 2020.[7] Considering that the 2nd respondent is now dormant[8] and with no director after the 1st respondent’s resignation, the assessment hearing was proceeded with in its absence.
The Accident
8. As judgment on liability has been entered against the 2nd respondent, the events leading up to the Accident are set out below as background information.
9. At the hearing, the applicant adopted his witness statement and supplemental witness statement as part of his evidence-in-chief.
10. On 23 April 2018, at about 2 p.m., he was assigned to work at Ground Floor and Garden of Block E, Handsome Villa, SS. 6 of S.A. Lot no. 56 in D.D. 130, No. 113 Tsing Chuen Wai, Tuen Mun, New Territories, Hong Kong (the “Site”). At the material time, there was an auto forklift operated by a driver, who delivered some tiles to the Site. When the driver was using the auto forklift to transport a pallet of tiles from the truck to the Site, the auto forklift became stuck due to the uneven ground. The applicant was therefore instructed to lift the auto forklift. Whilst he was lifting the front panel of the auto forklift, the said driver suddenly pressed the start button, mobilizing the forklift forward, and crushing the applicant’s left thumb into a pile of tiles stacked in front of the auto forklift.
The applicant’s injuries and loss of earning capacity
11. Immediately after the Accident, the applicant was taken by an ambulance to the Accident and Emergency Department (the “AED”) of the Tuen Mun Hospital (the “TMH”). X-ray examination revealed that there was no fracture on the left thumb, but there was tissue loss at the distal part of his left thumb. He was then transferred to the Department of Orthopaedic & Traumatology (the “O&T”) of TMH for further management.
12. At the O&T of TMH, the applicant was treated with revision amputation and full thickness skin grafting on his left thumb. He was hospitalised for one day and discharged from TMH on 24 April 2018. He was referred to and attended physiotherapy sessions at the Physiotherapy Department of Caritas Medical Centre from 31 May 2018 to 10 August 2018.
13. The applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) on 31 December 2018. In the Form 7 issued by the Board on 14 January 2019, it was assessed that he sustained left thumb injury, resulting in deformity, pain, stiffness and weakness. The Board found him to have suffered a loss of earning capacity at 3%, with sick leave from 23 April 2018 to 31 December 2018, a span of 253 days.
14. Neither the applicant nor the 1st and 2nd respondents have lodged an appeal against the Form 7. As such, the Board’s assessment is final and binding on the parties.[9] I would therefore find that the applicant sustained the injury, and suffered loss of his earning capacity, as assessed by the Board. I also find that the sick leave period, as accepted by the Board, was reasonable.
The applicant’s earnings at the time of the Accident
15. At the assessment hearing, the following clarifications were received from the applicant regarding his earnings.
16. He first clarified that his work with the 2nd respondent as a general labourer started in or about January or February 2018. Initially, he worked casually for a few days per month for the 2nd respondent, as he would also receive works from other contractors at the same time. This was changed in March 2018.
17. The applicant, in the Application, alleged that the earnings he received for the month preceding the Accident was HK$31,800 (i.e. March 2018), and received the same amount on average per month for the 12-month period prior to the Accident.
18. Regarding the former, it was somewhat corroborated by the List of Earnings filed by the 1st respondent[10], and a bank receipt he has disclosed showing that a sum of HK$31,800 was transferred to the applicant’s account on 23 March 2018 (the “Bank Receipt”).[11] I used the word ‘somewhat’ because the 1st respondent subsequently filed an amended List of Earnings suggesting that the applicant only earned HK$900 in March 2018, notwithstanding the Bank Receipt was again disclosed by the 1st respondent. The reason for such change of his stance was not revealed in his Answer or witness statement.
19. As to the alleged average monthly earnings, the applicant in his witness statement stated that he worked 30 days per month and 7 days per week. He received daily wages of HK$800. I had reservation as to the number of days he allegedly worked on a weekly and monthly basis. In substance, he was suggesting that he worked the entire year without any day-off. But he should be entitled to at least a rest day for every 7 days of work[12], and 12 statutory holidays per year.[13] Come what may, even taking his case to the highest, he should only be receiving on average HK$24,333.33 per month.[14] Applying the same calculation, the earnings that he should receive for March 2018 was HK$24,800.[15] Both figures are far below the earnings of HK$31,800 that the applicant suggested.
20. At the hearing, the applicant explained that what he stated in his witness statement represented the maximum working days and earnings he would receive in a month. There were times that he would not get a single day-off in a month. But there were also times when he would get 6 to 7 days off in a month. In addition, he would work overtime, i.e. beyond his usual working hours from 8 am to 6 pm, and would receive HK$100 for each extra-hour he worked. Balancing everything out, he asserted that his monthly earnings would range from HK$24,800 to HK$31,800.
21. In the absence of any contradictory evidence, I accept the applicant’s explanations. In any event, there remains the incontrovertible evidence that the applicant did receive HK$31,800 on 23 March 2018 as per the Bank Receipt. Pursuant to section 11(1) of the ECO, this court should adopt a calculation which is more favourable to the employee. As such, I would take his March 2018 earnings for the purpose of this assessment of compensation.[16]
Compensation in case of permanent partial capacity (section 9 of the ECO)
22. The applicant was born on 31 December 1984, and was 33 years old at the time of the Accident. As aforesaid, his loss of earning capacity was 3%.
23. Pursuant to section 7(1)(b) of the ECO, the amount that the applicant should receive under this head is HK$28,360[17] x 96[18] x 3% = HK$81,676.80.
Compensation in case of temporary incapacity (section 10 of the ECO)
24. The claim under this head is for the loss of earnings during the applicant’s sick leave period, i.e. 253 days as stated in the above. The applicant confirmed at the hearing that he did not work during the said period. In the absence of any contradictory evidence, I accept it as being true.
25. The amount of compensation that should be awarded to the applicant is HK$31,800 x 253/30 x 4/5 = HK$214,544.
Payment of medical expenses (section 10A of the ECO)
26. The applicant in his witness statement claimed that he spent HK$5,000 on medical expenses and travelling. However, the receipts for medical expenses disclosed by him showed that a total sum of HK$95 was expended for this head of compensation.[19] Mr Leung submitted that this amount should be awarded. I agree.
Conclusion
27. To recap, the compensation awarded above are as follows:-
| (1) |
Section 9 |
HK$81,676.80 |
| (2) |
Section 10 |
HK$214,544 |
| (3) |
Section 10A |
HK$95 |
| |
Total: |
HK$296,315.80 |
Order
28. In light of the above, the compensation payable by the 2nd respondent to the applicant is assessed in the sum of HK$296,315.80. Interest shall accrue on this sum at half judgment rate from the date of the Accident (i.e. 23 April 2018) up to the date of judgment, and thereafter at judgment rate until payment in full.
29. I would also order that the 2nd respondent do pay to the applicant the costs of this action, including all costs previously reserved, to be taxed if not agreed, with certificate for counsel for this hearing.
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( David Chan )
Deputy District Judge |
Mr Andrew Leung instructed by John M. Pickavant & Co., for the applicant
The 2nd respondent was not represented and absent
[1] Leave from Master Hui was obtained by the applicant to continue to proceed with these proceedings against the 1st respondent; see the order dated 11 March 2019 under HCB 5105/2018
[2] See Order of HH Judge Kent Yee dated 4 December 2019
[3] See Order of HH Judge Kent Yee dated 27 December 2019
[4] See Practice Direction 18.2, paragraph 152
[5] Returned by the Post Office with the reason “Moved”
[6] Refused acceptance by the current tenant of the premises
[7] Messrs John M. Pickavant & Co., solicitors for the applicant, undertook to file an affirmation of service within 7 days from the assessment hearing
[8] The Registrar of Companies intended to strike off the 2nd respondent from the Companies Register, but abandoned the same after an objection was received. See letter from the Companies Registry dated 14 August 2019.
[9] See Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413
[10] The 1st respondent reported that the applicant was paid HK$34,000 for March 2018. The 1st respondent wrongly added HK$2,200 to the applicant’s earnings, when that sum was actually transferred to another worker. See Assessment Bundle A, at p 31, top left receipt.
[11] Assessment Bundle A, at pp 28 and 31
[12] See Employment Ordinance (Cap 57), section 17
[13] Ibid, section 39
[14] (365 days x HK$800 per day ÷ 12 months)
[15] 31 days x HK$800 per day
[16] See section 11(1)(a) of the ECO
[17] The monthly earnings to be adopted for the calculation of compensation under this head was capped at HK$28,360 for the period between 5 March 2015 and 1 April 2017
[18] See section 7(1)(a) of the ECO
[19] Assessment Bundle B, at pp 193-195
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