PUN ALINA v. NOBLE CONCEPT GROUP LTD

DCEC 1170/2019

[2021] HKDC 752

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1170 OF 2019

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ASSESSMENT OF COMPENSATION

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1.  This is the hearing for the assessment of employees’ compensation to be paid to the applicant (“the AP”).

2.  The respondent (“R”) did not appear to contest.  In fact, R so far has not taken any part in these proceedings and has been absent in all previous hearings.  On 13 November 2020, an Interlocutory Judgment was entered against R.  I was satisfied that R had due notice this hearing and the Hearing Bundle and the AP’s Opening Submissions has been duly sent to R.  I therefore proceeded with this hearing in its absence.

Background, the accident, injuries and treatment

3.  The AP gave evidence for her application.  I accept her evidence, which was uncontested.

4.  The AP was born in 1996.  She was a Nepalese national and has become a permanent resident of Hong Kong. 

5.  At the time of the accident, she was 21 years old and was employed by R as a waitress working in a bar known as Wolf Market at 1/F, the Plaza, Central, Hong Kong (“the Bar”).

6.  I accept the AP’s evidence and find that in the month prior to the below-mentioned accident, she was earning from R a total monthly earning of HK$14,500 consisting of a basic salary of HK$14,000 and tips in the amount of HK$500.

7.  On 24 February 2018 at about 12:45am and in the course of her employment with R and while working in the Bar, she slipped and fell and injured her right ankle.

8.  She was taken to the Accident and Emergency Department of Queen Mary Hospital and was found to have sustained right distal fibular fracture.  She was admitted to the Orthopaedic Ward for treatment.  Open reduction and internal fixation were performed.  She was then transferred to MacLehose Medical Rehabilitation Centre for physiotherapy and rehabilitation.

9.  On 24 January 2019, she underwent another surgery for the removal of right ankle implants.  She had another surgery on 21 February 2019 in the form of revision right ankle fixation.

10.  At various stages, she had been receiving follow up treatments and sessions of physiotherapy and occupational therapy from various government hospitals and clinics.

Assessment by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”)

11.  The AP was assessed by the Board on 18 October 2019, and a Form 7 dated 1 November 2019 was issued.  She objected to the assessment made.

12.  The review assessment took place on 17 January 2020.  A Certificate of Review of Assessment dated 31 January 2020 (“Form 9”) was issued.  In Form 9, the Board certified that the AP suffered 5% loss of earning capacity permanently caused by the said injury and that the period of absence from duty necessary as a result of the injury was from 24 February 2018 to 3 August 2018 and from 5 August 2018 to 17 January 2020, a total of 692 days.

13.  The AP had previously filed a Notice of Appeal against the said assessment in Form 9.  The appeal however was later abandoned.  The Form 9 is therefore unchallenged evidence of the matters therein certified.

Section 9 – Compensation in case of permanent partial incapacity

14.  As the AP was 21 years old at the time of the accident, the compensation under this section is calculated by multiplying her monthly earning by the percentage of loss of earning capacity and then by a factor of 96.  The compensation therefore is: HK$14,500 x 5% x 96 = HK$69,600.

Section 10 Compensation in case of temporary incapacity

15.  The absence from duty certified by the Board, as above mentioned, totalled to 692 days.  The compensation under this section therefore is: HK$14,500 x 4/5 x 692/30 = HK$267,573.

Section 10A – Medical Expenses

16.  I accept the AP’s evidence and find that she has paid medical expenses as a result of the said accident in the total sum of HK$8,760, and I so award.

No payment made by R

17.  The AP gave evidence, which I accept and find, that no payment whatsoever had been made to her by R since the said accident.

Disposal

18.  In the premises, I assess the total amount of employees’ compensation to be awarded to the AP at HK$345,933 (HK$69,600 + HK$267,573 + HK$8,760) and will enter judgment against R in that amount.

19.  I also award to her interest on the said sum of HK$345,933 at half judgment rate per annum from the date of the said accident to the date of this assessment, and thereafter at judgment rate until full payment.

20.  I will make a costs order nisi that R pays the AP the costs of this assessment with certificate for counsel.

21.  I thank counsel for his assistance.