WONG KA KIT v. HONG KONG PEARL LOGISTICS CO LTD

DCEC 2387/2020 [2022] HKDC 845 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO 2387 OF 2020 -------------------------- IN THE MATTER OF AN APPLICATION BETWEEN WONG KA KIT Applicant and HONG KONG PEARL LOGISTICS COMPANY LIMITED Respondent ------------------------- Before: Deputy District Judge B Mak in Court Date of Hearing: 5 August 2022 Date of Judgment: 11 August 2022 -------------------------- JUDGMENT -------------------------- Introduction This is the trial for assessment of compensation. Interlocutory judgment By the order of Her Honour Judge Levy dated 17 September 2021, interlocutory judgment on liability was entered against the respondent. The trial for assessment of compensation was fixed for 5 August 2022 at 9.30 am in Court No 30. Service A notice of trial dated 21 April 2022 was sent to the parties by the court. The applicant served the opening submission and the assessment bundle on the respondent on 27 July 2022 by leaving them to a female employee of the respondent at its registered office. The cover letter also reminded the respondent of the trial date. I am satisfied that the respondent has had due notice of the trial but has chosen not to appear. Assessment of compensation Section 9 The applicant was employed by the respondent as a transportation worker. He was injured on 23 January 2019. The applicant said his daily wage was $800. However, he would be required to work over-time for 2 to 3 hours on every working day at the hourly rate of $80. Therefore, he would earn around $1,000 per day. He worked everyday except Sundays. His monthly earnings was therefore around $26,000. In the employer’s accident report dated 12 December 2019, the respondent only stated that the daily wage of the applicant was $800 and that his monthly earnings was $20,000, short of mentioning any over-time pay. At the hearing, the applicant confirmed that he had received periodical payments in the total sum of $64,000 as stated in the employer’s accident report. He said he had only received such payments for 3 months. The employer is required to pay the injured employee four-fifths of his monthly earnings. The payment of periodical payments of over $20,000 per month tends to show that the applicant’s monthly earnings was in the region of $26,000. I accept that the applicant was required to work over-time every working day so that his monthly earnings was $26,000 ($1,000 x 26 days). The applicant was 34 years old at the time of the accident. Under s7(1)(a) of Employees’ Compensation Ordinance (“ECO”), the multiplier is 96. By a Certificate of Review of Assessment dated 22 July 2021, the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed the loss of earning capacity permanently caused by the injury as 3.5%. Accordingly, the compensation under s9 of ECO is $87,360 ($26,000 x 96 months x 3.5%). Section 10 The Board certified the periods of absence from duty as a result of the injury at 268 days during which there were 10 days of statutory holidays. Accordingly, the compensation under s10 of ECO is $206,400 ($26,000 x 4/5 x 258 days/26). Section 10A The applicant has incurred $3,995 on medical expenses. Partial payment The applicant has received a total of $64,000 from the respondent. Conclusion and award Accordingly, I find that the applicant is entitled to compensation in the sum of $233,755 which is made up of the following:- Section 9 compensation $87,360.00 Section 10 compensation $206,400.00 Section 10A compensation $3,995.00 __________ Total: $297,755.00 Less: Partial Payment $64,000.00 __________ Net compensation $233,755.00 ========= Interest The applicant is entitled to interest at half judgment rate from the date of the accident (ie 23 January 2019) to the date of judgment and thereafter at judgment rate until the date of payment. Costs I also order the respondent to pay the applicant the costs of the assessment of compensation, to be taxed if not agreed. The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations. ( Brian Mak ) Deputy District Judge Mr Ho Kai Tong, of A Lee & Partners, assigned by the Director of Legal Aid, for the applicant The respondent was not represented and did not appear