LUK KWAI CHUN v. KS INTERNATIONAL HOLDINGS CORPORATION LTD

DCEC 2861/2019

[2021] HKDC 685

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2861 OF 2019

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JUDGMENT

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INTRODUCTION

1.  In the present case, the applicant claims against the respondent for employees’ compensation pursuant to Sections 9, 10 and 10A of the Employees’ Compensation Ordinance (“the ECO”).

2.  On 9 December 2019, an Application was filed and was subsequently amended on 28 July 2020.

3.  The respondent has not entered appearance in these proceedings.  On 24 July 2020, interlocutory judgment on liability was entered against the respondent in default of filing its answer to the Application, leaving compensation to be assessed.

4.  The respondent was absent at the assessment of compensation on 28 May 2021.  The applicant filed an affirmation of service proving that, amongst other things, the Notice of Trial issued by the court dated 7 December 2020, the assessment bundle and the applicant’s opening submissions had been served on the respondent.  On 10 May 2021, the court also issued a Notice of Hearing (Change of Venue) to the respondent. I was satisfied that due notice had been given to the respondent that the assessment was fixed on 28 May 2021, and the hearing was proceeded with in his absence pursuant to RDC O 35 r1(2).

THE SUBJECT ACCIDENT

5.  At the material time, the applicant was employed by the respondent as a cleaning worker.  On 11 December 2017 at about 7:15 pm, when the applicant was walking downstairs at the staircase of 10-12 Chatham Court, Tsim Sha Tsui, Kowloon in the course of her employment, the applicant slipped and fell down from the stairs due to lack of adequate lighting and visibility.  As a result of the accident, the applicant sustained multiple injuries, including head and wrist injury and fracture of her left distal radius and ulnar styloid.

6.  On 28 August 2019, the extent of the applicant’s injuries was re-assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”).  The Certificate of Review of Assessment (Form 9) issued by the Board dated 11 September 2019 contained the following assessments:-

(1)  Injury: multiple injuries resulting in (i) left wrist pain, numbness, weakness and stiffness and (ii) head scalp discomfort

(2)  the permanent loss of earning capacity caused by the accident: 2.5%

(3)  Period of absence from duty necessary as a result of the injury: 11 December 2017 to 1 February 2019

7.  It is well-established that the Board’s assessments are final and conclusive unless appealed under section 18 of the ECO: Ng Ming Cheong v Mass Transit Railway Corporation [1997] HKLRD 1231, 1236 -1237 per Le Pichon J (as she then was).  No appeal has been lodged by the applicant.

8.  The issue to be determined at this trial is the applicant’s monthly earnings as at the time of the accident.

MONTHLY EARNINGS OF THE APPLICANT

9.  The applicant was 64 years old at the time of the accident.  Since 8 December 2017, she was employed by the respondent as a cleaning worker with a monthly salary in the sum of $14,000.00.

10.  On 27 November 2020, HH Judge Levy ordered that unless the respondent do file and serve a list of earnings of the applicant for the period of 12 months immediately prior to the date of the accident or for such lesser period of employment within 14 days from the date of service of the order, it shall be deemed that the respondent agrees and adopts the monthly earnings of the applicant as in the Application filed on 9 December 2019.

11.  The respondent did not file any list of earnings as per the order, hence it is deemed to agree and adopt the monthly earnings of $14,000 as stated in the Application. 

12.  The respondent had issued various cheques and pay slips to the applicant in respect of her periodical payments after the accident.  It is clear from those documents that the amount of periodical payments was calculated on the basis of a monthly salary of $14,000.

13.  At the hearing of the assessment of compensation, the applicant told the court that prior to her employment with the respondent, she was also a cleaning worker with a monthly salary of $12,500.  Through her friend, she came to know that the respondent was hiring a cleaning worker.  The respondent offered a monthly salary of $14,000, which she accepted.  The applicant confirmed in court that her employment agreement was only made orally, and she had not been asked by the respondent to sign any employment-related documents as she had only worked there for a few days.  I accept the applicant’s evidence.

14.  In view of the foregoing matters, I am satisfied that the applicant was earning a monthly salary of $14,000 at the time of the accident, and this sum will be adopted for the purpose of calculating the amount of compensation under the various sections of the ECO.

COMPENSATION UNDER SECTION 9 OF THE ECO

15.  Pursuant to section 7(1)(c), in the case of an employee of over 56 years of age at the time of the accident, the amount of compensation shall be a lump sum equal to 48 months’ earnings or 48 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(c) specified in the first column of that Schedule, whichever is the less.  The applicant’s monthly income of $14,000 is less than the statutory limit (ie $28,360) as specified in the Sixth Schedule and applicable at the time of the accident.  Hence, the sum of $14,000 will be adopted for the calculation of section 9 compensation.

16.  Since the injuries suffered by the applicant are not specified in the First Schedule of the ECO, the percentage of loss of earning capacity as stated in Form 9 is to be adopted.  The compensation under section 9 should be:-

     $14,000 x 48 x 2.5% = $16,800

COMPENSATION UNDER SECTION 10 OF THE ECO

21.  The applicant was granted 418 days of sick leave from 11 December 2017 to 1 February 2019, which was certified as necessary by the Board.  It follows that the compensation under section 10 of the ECO should be:-

     $14,000 x 418/30 x 4/5 = $156,053.33

COMPENSATION UNDER SECTION 10A OF THE ECO

22.  The applicant claims a total sum of $1,715 for medical expenses under section 10A.  I am satisfied that all the medical expenses claimed were paid to government hospitals in Hong Kong for the treatment and physiotherapy of the applicant’s injuries caused by the accident, and they did not exceed the statutory daily limit of $200 as applicable at the time of the accident.  I allow the amount of $1,715 in full.

ADVANCED PAYMENT RECEIVED

23.  The applicant had received advanced periodical payments from the respondent in the total sum of $84,335.16. She should give credit to the respondent in respect of this sum.

SUMMARY

24.  In summary, I assess the compensation payable to the applicant under the ECO as follows:-

Section 9 compensation	$16,800.00
Section 10 compensation	$156,053.33
Section 10A compensation	$1,715.00
LESS: payment made by the respondent	($84,335.16)
Total	$90,233.17

25.  I therefore hold that the respondent is liable to pay compensation to the applicant in the sum of $90,223.17 together with interest at half judgment rate from the date of the accident to the date of judgment and thereafter at judgment rate until payment in full.

26.  I also make an order nisi that the respondent shall pay the applicant’s costs of the action to be taxed if not agreed.  This order nisi shall become absolute upon the expiry of 14 days after the date of this judgment if there is no application to vary the same within the 14-day period.