HO CHI YAN v. ELITE CHAMBER LTD

DCEC 984/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 984 OF 2012

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JUDGMENT

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1.  This is an application for compensation under sections 9, 10 and 10A of the Employees Compensation Ordinance, Cap 282.

2.  The respondent filed the Amended Answer on 7 December 2012 but failed to attend the subsequent direction hearings and today’s trial.  I am satisfied that the respondent has been notified of today’s hearing and has been served with the Amended Application and the bundles for trial. I ordered the trial to proceed in the absence of the respondent.

3.  It is not in dispute that the applicant was the employee of the respondent.  Under the employment contract dated 24 August 2010, the applicant was a part time sales consultant.  Her daily salary was HK$ 500.00.  For the month of September 2010, she worked for 23 days and earned the salary of HK $11,500.00.  It seems that despite the title of part-time sales consultant, she was in fact a daily-rated worker.

4.  The sequence of events alleged by the applicant was as follows:- at about 12:30 pm on a day in early October 2010, while the applicant was working at the Versace counter, Menswear Section of Armani at Lane Crawford, Causeway Bay, Mr William Cheng was standing at the corridor near the Versace counter vigorously moving his body and limbs, having seen that, the applicant then moved towards her left side to avoid Mr Cheng and suggested Mr Cheng and the other female colleague not to play.  However, Mr Cheng ignored the request. Mr Cheng moved in the applicant’s direction and jumped up to kick the paper held by a female colleague who was close to the applicant.  While doing so, Mr Cheng hit the applicant on her right face with his left fist.  The applicant asked for an apology but was refused.  Mr Cheng told her to report the matter to the police if she had guts.  In the next few days following the assault, Mr Cheng further intimidated the applicant 6 to 7 times on different occasions by threatening to inflict more harm on the applicant in future.  As a result of the threats, the applicant was diagnosed to suffer from psychotic disorder.

5.  In the trial, the applicant adopted her two witness statements as evidence.  She said she resigned from her job in mid-October 2010.  As a result of the threats by Mr Cheng, the applicant started to have hallucination and sleeping problems.

6.  On 28 October 2010, the applicant consulted Dr Stephen Tse.  She complained having headache, insomnia, auditory hallucination and bad mood.  She was given 10 days’ mediation of anti- depressant.

7.  Her condition was not improved.  According to paragraph 15 of the medical report by Dr Stephen Ng dated 22 April, 2013, he described the applicant as fearful and depressed after the incident. She had suicidal thought of jumping from height.  She even went to the fourth floor of a building and thought of jumping from height there.  Her sister-in-law took her to hospital.  She was admitted to Shatin Hospital on 7 November 2010 and discharged on 18 November 2010.  

8.  In the medical report by Dr Cheuk Tin Yan, Justina of Department of Psychiatry, Prince of Wales Hospital dated 24 August 2011, Dr Cheuk summarized that the applicant was diagnosed to be suffering from psychotic depression during her admission to Shatin Hospital in 2010.  The applicant disclosed the incident of being hit by a male ex-colleague, which led to the resignation from her job in October 2010.  She complained having increased anxiety, recurrent nightmares and recalls of the incident, and also auditory hallucination of the male ex-colleague threatening to hit her.

9.  According to paragraph 24 of the aforesaid medical report by Dr Stephen Ng, the applicant had no history of any mental illness or treatment by any psychiatrist before the index incident.  Two years before the index incident, she felt anxious with her job with some sleep disturbances.  She sought help from a family doctor and she was put on medications like sleeping pills for one month.  She felt better afterwards.  She did not need any further treatment after that period.  There was no previous history of any psychiatric illness.  Dr Ng considered the current mental symptoms were not related to any previous illness.

10.  In paragraph 28 of the said report, Dr Ng stated that the applicant felt better after the in-hospital treatment.  However, she still had residual mental symptoms.  She had some relapse of her symptoms when she tried to turn up for work.  She could not work yet and she avoided going to Causeway Bay.  Going back to Causeway Bay caused the worsening of her mental symptoms.

11.  In paragraph 31 of the said report, Dr Ng recommended the applicant to have more intensive psychiatric care and psychological treatment by a psychiatrist and a clinical psychologist every two weeks for at least another 18 months.

12.  In paragraph 35 of the said report, Dr Ng stated the opinion that he assessed the percentage of her permanent disability and impairment of the whole person to be 4% and her loss of earning capacity due to the mental problems to be 4% after the recommended treatment.

13.  In the supplemental medical report dated 31May 2013, Dr Ng opined that, according to the applicant’s psychiatric conditions, sick leave up to 12 months is appropriate.

14.  In the Amended Answer, the respondent denied liability but did not put forward any positive case.  The applicant’s case was not challenged.

15.  I accept the evidence of the applicant and the medical opinion of Dr Ng as stated in his reports.  I make the finding of facts as alleged by the applicant.  I accept the loss of earning capacity be 4% and the period of sick leave be 12 months.  Given her mental state and the fact that she has to attend the follow-up treatments after the incident, I accept that one year of sick leave is appropriate.  

16.  In the circumstances, the amounts of compensation are as follows:-

Under section 9
$11,500 x 96 x 4%	$44,160
(the applicant was 34 years of age at the time of the incident)
Under section 10
$11,500 x 12 x 4/5	$110,400
Under section 10(A)
$1,968 + $5,760	$7,728
Total	$162,288

17.  The sum of $5,760 is the medical expenses for the recommended treatments by Dr Ng under paragraph 31 of the said medical report.  I accept an average sum of $80 as medical expense for each session in public hospital.  The cost for the treatments by a psychiatrist and a clinical psychologist for every two weeks for 18 months will be $5,760. ($80 x 18 x 2 x 2 = $5,760).  Under section 10A(3), medical expenses which the employer are liable to pay under subsection (1) shall be payable in respect of the period which the employee receives medical treatment until the attending registered medical practitioner, registered Chinese medicine practitioner or registered dentist certifies that in his opinion no further treatment is required.  Therefore the employer may be liable for the future medical expenses.

18.  I order the respondent to pay the sum of HK$162,288 to the applicant.

19.  I also make an order nisi that the respondent to pay the applicant’s costs, including any reserved costs, with certificate for counsel, to be taxed if not agreed.  Unless varied, the order nisi will be made absolute after 14 days.