DCEC 2338/2013









Before: Deputy District Judge Phoebe Man in Court

Date of Hearing: 7 April 2016
Date of Judgment: 12 April 2016




1. On 7 August 2013, the applicant was under the employment of the respondent and was assigned by the respondent to collect a cargoat Terminal 1, Container Port Road, Kwai Chung, New Territories. He was hit by a forklift whilst pulling a cargo and as a resulthe sustained personal injuries.

2. He gave the Notice of Accident together with a statement of the applicant to the respondent in accordance with section 14 of theEmployees’ Compensation Ordinance (Cap 282) (the “Ordinance”).

3. Under an Order dated 29 January 2016, interlocutory judgment on liability was entered against the respondent by His Honour JudgeCM Leung. The respondent was absent during the trial on liability.

4. The applicant applies for compensation under sections 9, 10 and 10A of the Ordinance with interest and costs.

5. The respondent was also absent at the trial on the assessment of compensation. The plaintiff’s solicitors have filed an affirmationof service deposing to the service of the Order of His Honour Judge CM Leung, an assessment bundle and, a skeleton argument withauthorities on the respondent.

6. The respondent has not complied with the various Orders made by the court concerning the filing of an Answer, List of Earnings andList of Documents. The respondent has not nominated an expert and has not filed any witness statement. As such, the respondentis deemed to have made no allegation on the claim, adduced no evidence and have elected not to adduce medical expert evidence attrial.

Medical evidence

7. The applicant has elected not to adduce expert medical evidence. He has adduced a medical report from Dr Ng Siu Cheung of PrincessMargaret Hospital dated 2 January 2014 with the following findings concerning the applicant’s first visit to the hospital afterthe accident on 7 August 2013:-

“Physical examination showed erythema and swelling of his right heel. The ankle range of movement was reduced. Clinically the Achillestendon was intact. X-ray of right ankle and foot showed no fracture.”

8. The applicant went back to the A&E Department of Princess Margaret Hospital on 10 August 2013 complaining of persistent pain. The applicant further visited the General Out-Patient Unit of the Kwun Tong Jockey Club Health Centre at United Christian Hospitalon 16, 18, 22, 28 August 2013; 1, 5 September 2013.

9. Another medical report dated 6 January 2014 by Dr Chan Siu Yuen of United Christian Hospital noted that:-

“He walked with limping gait. Examination showed bruises, erythema and tenderness over right posterior ankle and right lower leg.Right ankle movement was limited by pain. He was treated with pain killer.

He repeatedly consulted us for right ankle and right posterior lower leg pain for few times since then. He was last seen on 5-9-2013. His right ankle and right posterior leg pain was improving. There was residual pain over right heel which is triggered on walking. Examination showed mild erythema and tenderness over right posterior ankle and no swelling, mild tenderness over right heel. Therange of right ankle movement was slightly limited by pain.”

10. A total of 34 days of sick leave was given.

11. The respondent being absent and no medical report was filed on behalf of the respondent, there is no challenge on the medical reportsand they are adopted.

The applicant’s monthly earnings

12. The applicant is the only witness. Since May 2013, the applicant was employed by the respondent as a full time lorry driver. Inhis examination-in-chief, he gave evidence that in the month preceding the accident in July 2013, he received a salary of HK$15,000.

13. The applicant has elected section 11(i)(a), namely, earnings “for the month immediately preceding the date of the accident”to be adopted as the basis for calculating the applicant’s monthly earnings.

14. The respondent being absent, no challenge was made on the amount asserted by the applicant.

15. Although there is no documentary proof on the amount of income, I find the applicant to be a straightforward and credible witness. He gave evidence that every month he was paid in cash and he would keep his salary at home for daily expenses for himself and forhis daughter. Thus there is no much left to be put in the bank and he does not pay tax.

16. This amount of monthly earning is inherently plausible for a lorry driver. I agree that HK$15,000 should be adopted as his monthlyearning.

Assessment of loss of earning capacity

17. As confirmed by the assessment of the Employees’ Compensation (Ordinary Assessment) Board in both Form 7 and Form 9, the applicantsuffered from right foot injury resulting in residual right foot and ankle pain.

18. As can be seen from the Certificate of Review of Assessment dated 17 October 2014, the Employees’ Compensation (Ordinary Assessment)Board reviewed its original assessment of permanent loss of earning capacity from 0.75% to 1%.

19. The applicant does not dispute the 1% loss of earning capacity assessment.

20. I find that the assessment of 1% loss of earning capacity is consistent with the mechanism and seriousness of the applicant’sinjury as reflected in the medical reports given by Dr Ng and Dr Chan, as well as the consistent complaints made by the applicantthroughout the sick leave period and to date.

21. Although the applicant’s evidence is that he currently earns HK$20,000 per month, I agree with Ms Choy for the applicant thatthat alone does not mean there is not loss of earning capacity. As the Privy Council has held in the case of Lau Ho Wah v Yau Chi Biu [1987] HKLR 1061, “In ordinary language the concept of earning capacity is certainly not limited to the present or to be measured by some immediateand possibly quite fortuitous achievement. It is concerned with a continuing state, with the potential of an individual and so verymuch with the future as well.”

Section 9

22. The applicant earned HK$15,000 for the month preceding the accident. He worked 6 days per week and 11-12 hours per day. He wasborn in 1975 and is currently 40 years old, which means he was under 40 years of age at the time of the accident

23. Section 7(1)(a) of the Ordinance provides that: “where permanent total incapacity results from the injury, the amount of compensationshall be:- (a) in the case of an employee under 40 years of age at the time of the accident, a lump sum equal to 96 months’ earnings……”

24. The compensation under section 9 is therefore: HK$15,000 x 96 months x 1% = HK$14,400.

Section 10

25. The applicant was granted sick leave for 34 days during which he did not work. The period of sick leave was endorsed in the Certificateof Review of Assessment.

26. The applicant is deemed to suffer from a total temporary incapacity under section 10(2) of the Ordinance during the period of absence. The respondent being absent, no evidence was adduced to show the contrary.

27. During the sick leave period, the applicant received a partial lump sum payment of HK$5,000 from the respondent under section 10of the Ordinance for payment of 10 days sick leave. Under section 10(4) of the Ordinance, such payment shall not be deducted fromany amount of compensation payable under sections 6, 7, 8, or 9.

28. Consequently, the periodical payments should be 4/5s of HK$15,000 under section 10(2) of the Ordinance. The remaining payment dueafter deduction of HK$5,000 under section 10 is calculated as : HK$15,000 x 4/5 x 34 days/30 – HK$5,000 = HK$8,600

Section 10A

29. I am satisfied with the claim of HK$425 for medical expenses which are all supported by documentary evidence.


30. In summary :

Section 9 compensation: HK$14,400
Section 10 compensation: HK$8,600
Section 10A compensation: HK$425
Total: HK$23,425


31. The result is that the applicant is awarded compensation of HK$23,425. Interest is awarded at half the judgment rate from the dateof the accident to the date of judgment and thereafter judgment rate until payment.

32. The applicant is awarded the costs of the action to be taxed if not agreed, with Certificate for Counsel.

33. I thank Counsel for her assistance.

( Phoebe Man )
Deputy District Judge

Miss Choy Man Sik, Chrystal, instructed by Huen & Partners, for the applicant

The respondent was not represented and did not appear