WAN PIK WA RYAN v. CHIU KING CHUN t/a HUA TU LOGISTICS CO

DCEC 1236/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1236 OF 2013

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JUDGMENT

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1.  This is an application for employee’s compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“Ordinance”). The applicant claims compensation for injuries sustained in an accident on 29 July 2011 which allegedly arose in and out of the course of his employment with the respondent.

2.  By paragraph 2(b) of the application filed herein, the applicant sought to appeal against the Certificate of Review of Assessment dated 17 January 2013 (“Form 9”).  I was informed at the trial by Mr Alfred Cheng, counsel for the applicant, that the applicant would no longer pursue such appeal.  Since no formal application was made to withdraw the appeal, the same fell to be dismissed and I do so now.

3.  The respondent did not file any answer and was absent for all interlocutory hearings.  The respondent was also absent at trial.  There was no reason not to proceed with the trial.  Both liability and quantum are in issue.

Liability

4.  The applicant gave evidence at trial.  According to his evidence, his employment with the respondent commenced on 4 July 2011.  On 29 July 2011, the respondent drove a medium goods vehicle bearing the licence plate JR 9995 (“JR 9995”) and picked up the applicant. The applicant sat in the front passenger seat.  JR 9995 first went to Tuen Mun, then headed to Kwai Chung to deliver goods.

5.  JR 9995 proceeded along the second left lane on Tuen Mun Highway.  When it approached Hong Kong Gold Coast, the applicant saw a truck bearing the licence plate MU 540 (“MU 540”) travelling in front of JR 9995 in the same lane.  JR 9995 moved closer to MU 540 and did not slow down.  Suddenly, the respondent swerved to the right.  After about 2 seconds, the left front side of JR 9995 rammed into the right rear side of MU 540 (the “Accident”).  JR 9995 continued to dash forward to the right until it stopped on the right kerbside.

6.  As a result of the Accident, the applicant’s legs were caught inside JR 9995.  The applicant had to be rescued by the Fire Services and was sent to Tuen Mun Hospital for immediate treatment.

7.  There can be no dispute that the Accident happened as described above.  On 17 November 2011, the respondent was convicted of careless driving in relation to the Accident on his own guilty plea, and was fined $2,000.  The brief facts to which the respondent agreed to were consistent with the applicant’s evidence as to how the Accident took place.

8.  I also accept that at the time of the accident the applicant was employed by the respondent and they were in the course of delivering goods for the respondent.  This did not appear to be disputed by the respondent.  The respondent filed a Form 2 on 27 February 2012 to report the injury of the applicant as an employee pursuant to section 15 of the Ordinance (“Form 2”).  In Part D of the Form 2, the respondent stated the “employer” was driving a vehicle towards the direction of Tsuen Wan when the Accident took place and the Accident was caused by careless driving.  As a result, the applicant (who was expressly referred to as an employee) suffered a fracture of his right thigh.  The “employer” and “employee” were in the vehicle transporting goods at the time.  The respondent also stated that the Accident occurred in the course of work. As stated above, the respondent conceded that he was the person driving JR 9995 at the time of the Accident and therefore when he referred to “employer” in the Form 2 he was clearly referring to himself.

9.  In any event, Part B of the Form 2 stated that “Hua Tu Logistics Co” was the applicant’s employer.  According to the Business Registration Certificate of “Hua Tu Logistics Company”, the respondent was its sole proprietor.  This is reinforced by the notice of change filed by the respondent on 23 March 2012 where the respondent confirmed he was the sole proprietor of the employer.

10.  It follows therefore that I find the respondent liable for the applicant’s claim for employee compensation.

Quantum

11.  The applicant was 20 years old at the time of the Accident.  The applicant gave evidence that he was paid $350 per working day, and that between 4 and 29 July 2011, he received $9,000 in total from the respondent.  This is corroborated by the income stated on the Form 2, and is consistent with the applicant’s passbook record.  

12.  Mr Cheng submitted that, despite the fact that the applicant was employed for less than 1 month by the respondent prior to the Accident, the court can nevertheless find his monthly earnings based on section 11(1)(b) of the Ordinance.

13.  Section 11 of the Ordinance provides 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.

(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.”

14.  The Court of Appeal considered the application of section 11(1) and (2) of the Ordinance in the context of an applicant who had been employed for less than 1 month prior to the accident in 黎祥礦訴盧景森[2008] 3 HKLRD 643 and 柯永明訴何炳池[2008] 4 HKLRD 337.

15.  In黎祥礦, the accident took place on the applicant’s first day of employment working as a casual worker on a construction site.  Yeung JA considered section 11(1)(a) applicable, Cheung JA considered section 11(2) applicable, and Yam J considered section 11(1)(b) applicable.

16.  In柯永明, Chung J (with whom Yeung JA agreed) held that, for an applicant who was employed for less than 1 month, the monthly earnings to be adopted for the purpose of the Ordinance could be calculated under section 11(1)(b) by referring to the actual earnings received by the applicant during that period, provided that it was practicable to calculate the monthly income from the actual earnings.

17.  As the applicant has no knowledge as to whether or not the respondent employed any other workers and, if so, their monthly earnings, Mr Cheng rightly concedes that section 11(2) of the Ordinance does not assist the applicant in the determination of his monthly earnings.

18.  In the present case, the applicant had worked for just over 25 days prior to the Accident.  The income the applicant had received for that period would therefore provide a good approximation as to how much the applicant would have earned for the whole month but for the Accident.  Accordingly, it would be appropriate to adopt $9,000 as the applicant’s monthly earnings under section 11(1)(b) of the Ordinance.

19.  Dr Arthur Chiang agreed with the 4% loss of earning capacity as given in the Form 9.

Section 9 compensation

20.  I find that the applicant’s monthly income at the time of the Accident was $9,000.  I further accept the percentage for permanent loss of earning capacity to be 4%.  As such, the assessment is as follows:-

     $9,000 x 96 (section 7(1)(a)) x 4% = $34,560

Section 10 compensation

21.  The applicant was granted sick leave for the period from 29 July 2011 to 4 October 2012 (14 months and 6 days).  This is the same as that given in the Form 9, to which Dr Chiang agreed.  As such, the assessment is as follows:-

     $9,000 x 14.2 x 4/5 = $102,240

Section 10A compensation

22.  The applicant claims $5,674 as medical expenses in the pleadings.  However, Mr Cheng conceded at the hearing that only $5,574 should be awarded under this head since only $5,574 worth of medical expenses were supported by receipts.  Accordingly, I make an award of $5,574 under this head.

Summary

23.  The total amount of damages awarded is as follows:-

Section 9	$34,560
Section 10	$102,240
Section 10A	$5,574
Total	$142,374

24.  I therefore grant judgment for the applicant against the respondent in the sum of $142,374 together with interest thereon at half judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate until payment.

25.  There is no reason why costs should not follow event.  Accordingly, I grant a costs order nisi that the costs of the action be paid by the respondent to the applicant to be taxed if not agreed.  There shall be a certificate for counsel and legal aid taxation of the applicant’s own costs.  The order nisi shall become absolute unless an application for variation is made within 14 days from the date of delivery of this judgment.