LUNG KA CHUN v. UNITED LOGISTICS CORPORATION LTD

DCEC 7/2022

[2023] HKDC 597

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 7 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 this Application under the Employees Compensation Ordinance, Cap 282 (“the ECO”) for compensation for injury at work on 30 January 2021 against the Respondent, his former employer. Interlocutory judgment on liability was entered with costs on 30 September 2022 leaving compensation to be assessed.

2.  The Respondent has not taken part in these proceedings. Neither witness statement nor documentary proof was filed by the Respondent.

3.  By Order dated 13 January 2023, Her Honour Judge Levy fixed this assessment hearing and granted further indulgence for the parties to file witness statements by way of an unless order. The said Order together with the Applicant’s witness statement were duly served on the Respondent.

4.  Notice of this assessment hearing was given to the Respondent in February 2023. The assessment bundle together with the written submissions of the Applicant were also served on the Respondent before this hearing. An affirmation for proof of service was filed.

5.  The Respondent did not attend this hearing. Nor did he file any documents in these proceedings.

6.  In the circumstances, I was satisfied that the Respondent had sufficient notice of this hearing and hence decided to proceed with the assessment in its absence.

The Applicant’s Claim

7.  Mr Law, Counsel for the Applicant, in his opening submissions and closing submissions, set out the Applicant’s claim for the compensation as follows : -

Compensation under s. 9	HKD102,960
Compensation under s. 10	HKD70,160
Compensation under s. 10A	HKD1,040
(Advanced payment)	(HKD160,000)
Total	HKD14,160

8.  It was initiated and confirmed by the Applicant through his Counsel that the Applicant would give full credit to the payments received by the Applicant from the Respondent totaling HKD160,000 in this assessment and that such payments were to be set off against the total amount of compensation to be awarded by this Court.

9.  The only viva voce evidence came from the Applicant in support of his Application. He adopted the contents of his witness statement as his evidence in chief.

The accident, injuries and treatments

10.  The Applicant was born on 2 October 1997. At the time of the accident, he was aged 23 and employed by the Respondent as a delivery worker.

11.  The accident occurred when he was descending from the tail lift of the medium goods vehicle to that he was assigned to unload some goods from it, the ring on his right ring finger was hooked and trapped by a defective iron frame. As a result, his right ring finger was injured. He was sent to the Princess Margaret Hospital (PMH) for treatment.

12.  The Applicant’s account of the accident and his injuries was well-documented in the medical reports produced by PMH. Immediately after the accident, he was admitted to the Accident & Emergency Department of PMH. Physical examination found that his right ring finger was disarticulated at level of distal interphalangeal joint. He was subsequently admitted by the orthopaedics ward for further treatment.

13.  The Department of Orthopaedics & Traumatology of PMH found that there was complete traumatic amputation at distal interphalangeal joint level with deglove injury over proximal part of the Applicant’s right ring finger. Operation with revision amputation stump of the right ring finger was performed. He was discharged on 31 January 2021.

14.  The Applicant had regular follow up at the specialist outpatient clinic with outpatient physiotherapy and occupational therapy for rehabilitation. The right ring finger amputated stump healed up subsequently.

15.  During the Applicant’s appointment at the special outpatient clinic on 14 December 2021, it was found that there was residual numbness over the right ring finger amputated stump. Intermittent sick leaves were granted to him for his injury after the accident.

16.  The Applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) on 21 April 2022. The Certificate of Assessment (Form 7) was issued on 5 May 2022 (the “Form 7”).

17.  The Applicant was assessed to have suffered from right ring finger injury resulting in right ring finger amputation and tip numbness as a result of the accident. The loss of earning capacity permanently caused by the injury was assessed to be 5.5% and the period of absence from duty necessary as a result of the injury was found to be 226 days, from 9 February 2021 to 1 June 2021 (113 days); and from 24 August 2021 to 14 December 2021 (113 days).

18.  The Applicant strictly adopts the assessment of the Board for the purpose of assessing compensation. There is no appeal against such assessment.

The Applicant’s Earnings

19.  As to the Applicant’s monthly earnings immediately before and at the time of the accident, I accept the Applicant’s case that his monthly earnings were HKD19,500. I am convinced that he received a daily wage of HKD750 and he worked for 26 days per month.

20.  According to the information provided by the Respondent to the Labour Department in the Form 2 pursuant to section 15 of the ECO (“Respondent’s Form 2”), the Respondent reported to the Labour Department that the Applicant worked for 24 days each month earning a monthly income of “approximately HKD18,000”.

21.  Given the Respondent’s Form 2 was submitted to the Labour Department in contemplation of the Applicant’s claim for compensation for his injury against the Respondent, it is highly unlikely that the Respondent would have inflated the monthly earnings of the Applicant ending up with a real risk of an enhanced compensation against it. The use of the word “approximately” indicates the Applicant’s monthly earnings was in fact more than HKD18,000. I can safely conclude that the Applicant’s daily wage was HKD750 and his monthly earnings were more than HKD18,000 per month.

22.  I also had the privilege of hearing and seeing the Applicant giving evidence in court. Coupled with the documentary evidence before me, the Applicant impresses me as an honest witness.

23.  When the Applicant was asked to explain why his monthly earnings were pleaded “HKD18,000 (subject to discovery)” in the Application (before amendment), he frankly admitted that he had not paid much attention to the details of the Application (which was prepared by his solicitors) when he was asked to sign on it. His contention indeed sits well with the plead of “subject to discovery” which denotes that the pleaded fact had yet been verified or finalized.

24.  The Applicant then gave a detailed account of the nature of the business of the Respondent, its daily operation as well as his work routine. He explained that due to the nature of his work, he was used to have frequent telephone communications with his boss and the boss’s wife in order to work out the work schedule almost on a daily basis. They had the practice of giving him special instructions for arranging the itineraries by sending whatsapp messages to his mobile phone for an average of 25 days each month and making calls to his mobile phone almost on a daily basis.

25.  Looking the matter in the round, I am convinced that serving as a delivery worker in a small logistic company in Hong Kong, heavily involved in collecting, storing and delivering goods, it is highly likely that the Applicant would have been required to work for 6 days a week and to rest on Sunday. In further consideration of his young age and his remuneration on a daily basis, I am persuaded that he actually had incentive to work for 6 days a week in order to earn a good living.

26.  Further, the Applicant had obtained and produced a number of documents, including the documents issued by banks, the Inland Revenue Department and the mandatory provident fund scheme authority for the past few years, for proof of the fact that his wages were paid in cash by the Respondent, which had neither filed tax returns nor made contributions to the mandatory provident fund scheme for him, leaving him with no direct documentary proof of his monthly wages. He did not hold any bank account during his employment with the Respondent.

27.  The Applicant also disclosed that he had received payments totaling HKD160,000 from the Respondent after the accident. He produced the relevant deposit slips and explained that such payments had been deposited into his girlfriend’s bank account as he did not hold any bank account in that period of time. He initiated and offered to deduct the total amount of compensation with such payments. No doubt such evidence is another strong proof of his allegation that he did not hold a bank account for the period concerned and his payments of wages were all along settled by the Respondent in cash.

28.  The Applicant volunteered to account for his employment with a new employer for lighter duties at a reduced monthly income of HKD16,000 since 23 August 2021. He produced his relevant bank statements showing the relevant payments of wages in the assessment bundle and offered to reduce the compensation accordingly. The relevant bank account was opened long after the accident.

29.  It is clear to me that the Applicant was a hardworking person striving to be engaged in gainful employment even during his sick leave period. This lends further support to his allegation that he had worked for the Respondent as much as he could for 26 days every month before the accident.

30.  Mr Law also seeks support from the statistics relating to average daily wages and average number of standard working days per month of operator in the transportation industry published by the Census and Statistics Department in March 2023 to suggest that there is no indication of exaggeration of the Applicant’s income which appeared to be on the low side and that there existed no special reasons that the Applicant would not have been required to work for 26 days per month according to the norm and general practice in the transportation industry.

31.  I should add that notwithstanding that the Respondent was notified of the Applicant’s allegation of monthly income of HKD19,500 which formed the basis of the Applicant’s claim for compensation long before this hearing, the Respondent chose not to contest the Applicant’s case nor to challenge his evidence.

32.  Having considered the Applicant’s testimony and the documents before me, I find the Applicant to be a truthful witness and I accept his evidence. I am convinced that his monthly earnings at the time and before the accident were HKD16,500.

33.  For the present compensation assessment, the Applicant plainly adopted the assessment of the Board as set out in the Form 7 to be the basis of the assessment.

Section 9

34.  The Applicant was 23 years old at the time of the accident. I accept a multiplier of 96 months. Therefore, the compensation for his permanent partial incapacity pursuant to section 9 of the ECO is: -

HKD19,500 x 96 x 5.5% = HKD102,960

Section 10

35.  The Applicant strictly adopted and confined the total length of sick leave certified by the Board of 226 days as the only basis for his entitlement under section 10 of the ECO.

36.  Prima facie, the compensation under section 10 of the ECO should be computed as follows:

HKD19,500 x 226/30 x 4/5 = HKD117,520

37.  However, the period of the Applicant’s new employment with lighter duties at a reduced income (commenced on 23 August 2021) which overlapped with the certified sick leave period (from 24 August 2021 to 14 December 2021) was 113 days (instead of 111 days as initially suggested at trial and subsequently clarified for the Applicant). During such period, the Applicant’s earnings were HKD16,000 per month. The Applicant offered to reduce his compensation accordingly. Compensation under section 10 should be reduced by:

HKD16,000 x 113/30 x 4/5 = HKD48,213.

38.  Thus analyzed, the compensation for temporary loss of earning capacity pursuant to section 10 of the ECO is : -

HKD117,520 - HKD48,213 = HKD69,307

Section 10A

39.  The Applicant’s claim for medical expenses incurred as a result of the accident pursuant to section 10A of the ECO is well-supported with documentary proof and should be allowed in full at HKD1,040.

40.  As initiated and confirmed by the Applicant, the Applicant gives full credit to the payments received from the Respondent totaling HKD160,000 with such sum to be set off against the total compensation awarded to him.

Summary

41.  In summary, the total amount of compensation awarded is as follows:

Compensation under s. 9	HKD102,960
Compensation under s. 10	HKD69,307
Compensation under s. 10A	HKD1,040
(the Applicant initiated and offered to set off against the total compensation awarded to him)	(HKD160,000)
Total	HKD13,307

42.  I give judgment against the Respondent for compensation to the Applicant in the sum of HKD13,307. The Respondent shall pay such sum with interest thereon at half judgment rate from the date of the accident, i.e. 30 January 2021, to the date of judgment and thereafter at judgment rate until payment in full.

43.  There are no special circumstances that depart this case from the general rule of costs follow the event. I make an order nisi that the costs of these assessment of compensation proceedings, including all costs reserved, to be paid by the Respondent to the Applicant, on a party and party basis, to be taxed if not agreed, with certificate for counsel. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

44.  In the absence of application by Summons within 14 days to vary, the costs order nisi shall become absolute.