PANG KWOK HO v. MAX RICH FOOD LTD

DCEC 2236/2022

[2024] HKDC 1577

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2236 OF 2022

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IN THE MATTER OF AN APPLICATION BETWEEN

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ASSESSMENT OF COMPENSATION

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Introduction

1.  The Applicant filed his Application for employees’ compensation against the Respondent on 1 November 2022. On 29 December 2023, HHJ Levy granted interlocutory judgment on liability in favour of the Applicant and gave ancillary directions for the assessment of quantum.

2.  On 28 August 2024, the assessment of compensation took place before me. The Plaintiff attended the trial in person and testified, whereas the Defendant was absent. At the end of the trial I reserved judgment, which I now hand down.

Background

3.  The Applicant was born on 28 June 2002 and was 19 years old at the time of the accident.

4.  The Respondent operated a meat shop in the wet market at shop No 39, level L1, Lung Fung Garden, 33 Lung Sum Avenue, Sheung Shui, New Territories.

5.  On 17 May 2021, the Applicant started working for the Respondent as a butcher/meat worker with a daily wage of HK$800, and his daily working hours were from 6:00 am to 7:00 pm. From 8 September 2021 onwards, after acceding to the Respondent’s request for him to work from 3:00 am to 12:00 noon instead, the Applicant’s daily wage was increased to HK$1,000.

6.  The Applicant’s job duties included cutting, grinding and preparing meats for sale, and manual handling of raw pork. The Applicant says that there was no agreed or designated leave arrangement with the Respondent, and he took leave irregularly. There were occasions where he took a few days’ leave, but there were also months where he did not take leave. For instance, in October 2021, he took three days of leave. So long as he did not request to take leave, the Respondent would consider him to be attending work and pay him his daily wage accordingly.

7.  On 9 November 2021, the Applicant started working in the workplace at around 2:30 am. He was instructed by the Respondent to cut and trim pork for sale at a later time. At around 4:00 am, when he was cutting pork ribs, he accidentally cut his left ring finger, resulting in near amputation of that finger’s distal phalanx.

8.  The Applicant sent a message to the Respondent via WhatsApp, and the Respondent immediately drove him to the North District Hospital (“NDH”) for treatment. According to NDH’s medical report, the Applicant suffered from loss of sensation of the distal stump. The capillary refill was more than two seconds, and the X-ray showed tuft fracture of his ring finger distal phalanx.

9.  Surgical revision of the amputated stump was performed on the Applicant, which found 90% near amputation of his ring finger at the level just distal to proximal nail. The nail plate and germinal matrix were avulsed. Fractured bone was exposed at the wound site, whereas his interphalangeal joints had full range of motion. He was discharged on 10 November 2021.

10.  At a subsequent follow-up consultation in NDH’s specialist outpatient clinic on 9 December 2021, the Applicant complained of wound pain which necessitated regular analgesics. At another follow-up consultation on 20 January 2022, the Applicant was found to have left ring finger tip and pulp parasthesia and hypersensitivity upon forceful pinching or tipping, with failure to make fist. The Applicant was also found to have limited distal interphalangeal joint flexion.

11.  The Applicant received his last follow-up consultation on 27 October 2022, during which he was found to be able to make a full fist with mild residual numbness at the ring finger tip. He was able to flex his distal interphalangeal joint with acceptable range.

12.  On 26 June 2023, the Employees’ Compensation (Ordinary Assessment) Board (“Compensation Board”) assessed the Applicant. In the Form 7 issued on 10 July 2023 pursuant to section 16F of the Employees’ Compensation Ordinance (“ECO”), the necessary period of absence from duty was assessed to be from 9 November 2021 to 26 June 2023, and the Applicant’s loss of earning capacity permanently caused by the injury was assessed to be 3%.

13.  On 30 October 2023, the Compensation Board reviewed and varied the aforesaid assessment. According to the Form 9 issued on 13 November 2023 pursuant to section 16G of the ECO, the necessary period of absence from duty was assessed to be from 9 November 2021 to 8 October 2023, 11 October 2023 to 14 October 2023 and 26 October 2023 to 30 October 2023. The Applicant’s loss of earning capacity permanently caused by the injury remained to be assessed at 3%.

14.  In his Application for employees’ compensation, the Applicant claimed compensation under sections 8, 9, 10 and 10A of the ECO. However, in his written submissions, the Applicant no longer pursued his claim under section 8. In any event, the Applicant’s own evidence does not support a claim made under section 8, which is applicable only if an applicant is as a result of the injury rendered unable to perform the essential actions of life without the attention of another person.

Section 9 Compensation

15.  Given the Applicant’s age at the time of the accident, for the purpose of computing the compensation under section 9, section 7(1)(a) and the Sixth Schedule of the ECO are also relevant.

16.  Pursuant to section 7(1)(a), in the case of permanent total incapacity, the compensation would be a lump sum equal to (1) 96 months of the applicant’s earnings; or (2) 96 times the amount specified in the Sixth Schedule which is HK$35,600, whichever is the less. Pursuant to section 9, in the case of permanent partial incapacity, the amount of compensation shall be 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.

17.  The applicable method for calculating the Applicant’s monthly earnings at the time of the accident is set out in section 11(1) of the ECO, which provides as follows:-

“(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) 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.”

18.  According to the Applicant, in October 2021 (ie the month immediately preceding the date of the accident), he worked for 28 days at a daily wage of HK$1,000.

19.  While the Respondent paid the Applicant’s wages in cash and the Applicant does not have a proper record of his wages, I am satisfied that he was earning HK$1,000 a day in October 2021:-

(1) The Applicant’s evidence is that after the accident, while he was on sick leave, the Respondent paid him HK$800 a day. It can be seen from the Applicant’s bank statements that starting from December 2021 onwards, there were indeed regular daily deposits of HK$800 into his bank account.

(2) Under section 35 of the Employment Ordinance, the daily rate of sickness allowance is a sum equivalent to four-fifths of the daily average of the wages earned by the employee if the employee has been employed for a period shorter than 12 months before the first sickness day.

(3) This “four-fifths” rate should be well known to employers. While there is no suggestion that the Respondent had section 35 of the Employment Ordinance in mind when he offered to pay the Applicant HK$800 a day during the latter’s sick leave, it is reasonable to infer that the Respondent offered to do so because the Applicant’s daily wage was HK$1,000 at the time of the accident.

(4) Further, the Applicant’s evidence is unchallenged. The Respondent was specifically ordered by HHJ Levy on 15 September 2023 to file and serve a table of the Applicant’s earnings, but the Respondent has failed to comply with the order and has not filed anything into court.

20.  The Applicant’s saying that he worked for 28 days in October 2021 earning $28,000 that month is also not challenged. On the Applicant’s own case he did not have a fixed number of working days each month such that he did not necessarily work for 28 days a month. Nevertheless, he is entitled to adopt his income for the month immediately preceding the accident for the assessment of compensation even though it may be unusually high compared to his earnings in some other previous months: see Chan Kam Sau v Yee Hing Construction Transportation Co Ltd DCEC 1361/2005 (unrep, 19 January 2007) at §§57-60.

21.  On the other hand, while the Applicant proposed adopting HK$28,000 as his monthly earning in his witness statement, he appeared to have a change of mind when he proposed HK$30,000 in his written submissions, on the basis that there were months when he worked for 30 days. This is irrelevant as he did not actually earn HK30,000 in October 2021; in fact, as his daily wage was increased to HK$1,000 only on 8 September 2021, there were no months where he earned $30,000 a month while working for the Respondent.

22.  As noted above, the Applicant’s loss of earning capacity permanently caused by the injury was assessed at 3%. Therefore, the Applicant is entitled to compensation in the sum of HK$80,640 (ie HK$28,000 x 96 x 3%) pursuant to section 9 of the ECO.

Section 10 Compensation

23.  Under section 10(1) of the ECO, an injured employee is entitled to a monthly payment of fourth-fifths of the difference between the monthly earnings which he was earning at the time of the accident and the monthly earnings which he is earning or capable of earning during the period of his temporary incapacity after the accident.

24.  In the Form 9, the Compensation Board certified a sick leave period of 708 days. As the Applicant suffers temporary incapacity after the accident which extends beyond 12 months after the date of the accident, I need to have regard to section 11(1A) of the ECO, which provides as follows:-

“(1A) Where an employee suffers temporary incapacity after an accident and such incapacity extends beyond 12 months after the date of the accident the monthly earnings of an employee at the time of the accident shall, in respect of temporary incapacity beyond the 12-month period after the date of the accident, be computed for the purposes of section 6, 7, 9 or 10 as being the earnings calculated –

(a) where the employer employs, in similar employment, other persons of similar earning capacity to the employee, as the earnings, that, if the accident had not occurred, the employee would have received at the end of a 12-month period after the date of the accident in accordance with the average rate of increase in respect of the earnings of other persons of similar earning capacity employed by the employer in similar employment;

(b) where the employer does not employ, in similar employment, other persons of similar earning capacity to the employee, as the monthly earnings of the employee computed under subsection (1) or (2) and adjusted in accordance with the rate of increase in the Consumer Price Index at the end of a 12-month period after the date of the accident.”

25.  There is no evidence before me that the Respondent employed in similar employment other persons of similar earning capacity to the Applicant. In the circumstances, I would apply section 11(1A)(b) in adjusting the Applicant’s earnings for the purpose of calculating the section 10 compensation, and I would take judicial notice that the Consumer Price Index in November 2022 was 1.8%.

26.  In the premises, the Applicant is entitled to compensation in the sum of HK$525,945.13 (ie [HK$28,000 x 4/5 x 12] + [HK$28,000 x 101.8% x 4/5 x 12 x 343/365]) pursuant to section 10 of the ECO.

Section 10A Compensation

27.  Section 10A of the ECO is concerned with the employer’s liability to pay the medical expenses for the medical treatment in respect of the employee’s injuries. The Applicant claims HK$2,000 under this head.

28.  While the Applicant is only able to produce some of the receipts issued by the NDH, I note from the discharge summary issued by the NDH dated 10 February 2022 that the Applicant did attend at least 32 occupational therapy sessions with the NDH. Since the fee payable for each session was HK$80, I am satisfied that the Applicant has at least paid HK$2,000 as his medical expenses.

29.  Therefore, I hold that the Applicant is entitled to compensation in the sum of HK$2,000 pursuant to section 10A of the ECO.

Advance Payments

30.  The Applicant shall give credit in respect of the advance payments that he has already received from the Respondent.

31.  On the Applicant’s own case, the Respondent paid him HK$800 in cash each day as sickness allowance, and he has received from the Respondent HK$227,200 in total (ie HK$800 a day for 284 days from 9 November 2021 to 19 August 2022). I accordingly hold that there should be a deduction of HK$227,200.

Conclusion and Disposition

32.  For the reasons set out above, I hold that the Applicant is entitled to compensation in the total sum of HK$381,385.13 (comprising section 9 compensation of HK$80,640, section 10 compensation of HK$525,945.13 and section 10A compensation of HK$2,000, with the advance payment of HK$227,200 deducted).

33.  I will award interest on the above sum at half judgment rate from 9 November 2021 (ie the date of the accident) to the date of this judgment, and at judgment rate thereafter until the date of full payment.

34.  I also make an order nisi that the Respondent do pay the Applicant’s costs of the action (including all costs reserved), to be taxed if not agreed.