KWOK YIN CHUN for herself and acting on behalf of members of the family of WONG CHI HUNG, deceased v. KING’S PAK CHINA HK LOGISTICS CO LTD

DCEC 2801/2019

[2022] HKDC 920

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2801 OF 2019

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ASSESSMENT OF COMPENSATION

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Introduction

1.  This is an employees’ compensation assessment arising out of a fatal accident that occurred on 14 December 2017 (the “Accident”). The application is brought by Madam Kwok Yin Chun, the widow of Wong Chi Hung, deceased (the “Deceased”), for herself and on behalf of other members of the family, under sections 6(1)(c) and 6(5) of the Employees’ Compensation Ordinance (Cap 282, the “ECO”).

2.  The respondent did not enter an appearance in the present proceedings. Interlocutory judgment was entered against it on 11 June 2021 pursuant to the Order of HH Judge Levy. This hearing is therefore only concerned with the assessment of the amount of compensation.

3.  The Employees’ Compensation Assistance Fund Board has been notified of the present proceedings but it has decided not to intervene[1].

4.  The applicant attended court and gave oral evidence. She adopted her 2 witness statements and answered questions from the court.

Facts

5.  The Deceased was employed by the respondent as a cross-border truck driver. At the time of the Accident, the Deceased was crushed between the door of a moving tractor unit and 2 stationary trailers at San Tin Car Park, Castle Peak Road, Lok Ma Chau, New Territories, Hong Kong. As a result of the Accident, the Deceased sustained multiple injuries and was subsequently certified dead on the same day.

6.  The Deceased was survived by the following family members:-

(1)  The applicant – wife of the Deceased, aged 61 at present.

(2)  Wong Shun King Aldora – daughter of the Deceased, aged 38 at present.

(3)  Wong Hui Ting Zaneta – daughter of the Deceased, aged 37 at present.

(4)  Wong Shun Hang Addison – son of the Deceased, aged 28 at present.

Analysis

7.  This is a relatively straightforward assessment of compensation. The only matter that requires substantive determination is the monthly earnings of the Deceased immediately before the Accident.

Section 6(1)(c) - Compensation

8.  The Deceased was born on 8 November 1955. At the time of the Accident, he was 62 years old.

9.  The operative part of section 6(1)(c) ECO provides as follows:-

“Where death results from the injury, then, subject to section 6A, the amount of compensation payable to the members of the family of the employee shall be -

(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 36 months’ earnings or 36 times the amount specified in the second column of the Sixth Schedule shown opposite section 6(1)(c) specified in the first column of that Schedule, whichever is the less.”

10.  At the time of the Accident, the statutory maximum under section 6(1)(c) as specified in the Sixth Schedule to the ECO was $28,360.

11.  The applicant’s case is that the daily wages of the Deceased was $1,200, and that his monthly earnings was around HK$38,000 (the applicant’s oral evidence is that the Deceased worked almost every day).

12.  There is not much documentary evidence shedding light on the daily or monthly earnings of the Deceased. The applicant’s evidence is that the Deceased was mostly paid in cash by the respondent and there were no salary slips.

13.  The only documents disclosed that are directly relevant to the issue are the handwritten notes prepared by the Deceased prior to his death recording the amount of outstanding salary due from the respondent[2]. These were disclosed by the applicant in related proceedings in the Labour Tribunal. In those notes, the Deceased himself recorded his salary (人工) for the months of September 2017, October 2017 and November 2017 to be $34,670, $25,390 and $23,176 respectively. There were also figures which refer to disbursements in Hong Kong Dollars and Renminbi (港什支and人民幣什支), but the applicant confirms that those were out-of-pocket expenses paid by the applicant which the respondent would reimburse (and hence not the Deceased’s income).

14.  In my judgment, these handwritten notes are the most reliable evidence as to the Deceased’s earnings. I acknowledge but am unable to accept the applicant’s bare assertion that the Deceased’s monthly earnings were usually more than those stated in the handwritten notes.

15.  Doing the best I can, I take the average figure of the 3 months of September, October and November 2017 ($27,745 to the nearest dollar) as stated in those notes and regard that as the Deceased’s monthly earnings prior to his death. This is lower than the statutory maximum set out in the Sixth Schedule to the ECO.

16.  Hence, the compensation pursuant to section 6(1)(c) of the ECO will be as follows:-

$27,745 x 36 = $998,820.

Section 6(5) - Funeral expenses

17.  Section 6(5) of the ECO provides:-

“Where death results from the injury, reimbursement of the reasonable expenses of the funeral of the deceased employee and the reasonable expenses of medical attendance on the deceased employee, not exceeding in all the sum of the amount specified in the second column of the Sixth Schedule shown opposite section 6(5) specified in the first column of that Schedule, shall be paid by the employer to any person who has paid the expenses.”

18.  At the time of the Accident, the statutory maximum for funeral expenses under section 6(5) of the ECO as specified in the Sixth Schedule was at HK$83,700.

19.  The applicant has produced receipts showing that funeral expenses in the total sum of around $166,600 were incurred[3]. I am satisfied that the statutory maximum of HK$83,700 should be awarded to the applicant as reasonable funeral expenses.

Conclusion

20.  The total amount of compensation to be awarded in this case should be $998,820 + $83,700 = $1,082,520, with interest at half judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate. Such compensation and interest payable shall be apportioned in accordance with section 6A of and the Seventh Schedule to the ECO.

21.  The applicant is entitled to the costs of the assessment. I order that the costs of the assessment (including all costs reserved if any) are to be paid by the respondent on a party and party basis to be taxed if not agreed. The applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.