XIE JINFENG v. 勝哥火鍋食品專門店 AND OTHERS

DCEC 1764/2018

[2021] HKDC 126

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1764 OF 2018

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ASSESSMENT OF COMPENSATION

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Introduction

1.  By these proceedings, the applicant employee seeks compensation from her employer, the 3^rd respondent, pursuant to the Employees’ Compensation Ordinance (Cap 282) (“ECO”).

2.  Upon the 3^rd respondent’s admission of liability, interlocutory judgment on liability was entered against him on 26 October 2018, with compensation to be assessed.

3.  The present trial was held for purposes of assessing compensation.  The 3^rd respondent did not attend trial. Pursuant to RDC O  35 r 1, I directed that the trial should proceed in the absence of the 3^rd respondent, given that he had full notice of the trial.  In particular:-

(a)  As evidenced by affirmations of service filed by the applicant, trial documents had been duly served upon the 3^rd respondent; and

(b)  Prior to the trial, the court clerk made a telephone call to the 3^rd respondent, at the telephone number which the 3^rd respondent had previously given to the court.  The court clerk spoke to the 3^rd respondent and informed him of a change in the starting time for this trial due to COVID-19 crowd management measures, which the 3^rd respondent acknowledged.

4.  As the trial was conducted predominantly in English and submissions made to me were all in English, this Decision is handed down in English.  The 3^rd respondent is at liberty to liaise with the court clerk within 14 days upon collection/receipt of this Decision to arrange for English/punti interpretation by a court translator at the District Court.  I direct the court clerk to draw the 3^rd respondent’s attention to this liberty granted to him by a letter in Chinese.

Findings of fact

5.  The only witness called was the applicant herself.  In the absence of any contradiction, and having regard to the totality of documentary evidence placed before the court, inherent plausibilities, as well as the applicant’s demeanor, I find that the applicant is an honest and reliable witness and accept her testimony in full.

6.  I make the following findings of fact:-

(a)  The applicant was born on 28 May 1987.

(b)  As of 7 August 2016, the applicant was employed by the 3^rd respondent as a saleslady at a frozen food store in a wet market at Shop B, Ground Floor, 1027 Canton Road, Kowloon (“the “Shop Premises”).

(c)  On 7 August 2016, the applicant sustained injuries at the Shop Premises in the course of her employment, resulting from the 3^rd respondent throwing a piece of plastic board onto the applicant’s head (the “Accident”).

(d)  After the Accident, the applicant attended the A&E Department of Kwong Wah Hospital for treatment.  Physical examination showed tenderness and swelling over her left scalp.

(e)  Over the period from 7 August 2016 to 28 June 2018, as a result of the injuries suffered by the applicant from the Accident:-

(i)  The applicant attended Kwong Wah Hospital and Precious Blood Hospital (Caritas) multiple times, seeking treatment for physical symptoms including persistent headache, dizziness, and poor memory.

(ii)  The applicant was also diagnosed with mixed anxiety and depressive disorder, attending Kwai Chung Hospital multiple times for treatment and follow-up. 

(f)  For the aforesaid medical treatments, the applicant incurred total compensable medical fees of HK$780.  This is calculated on the basis of a daily limit of HK$200 (for fees incurred prior to 9 February 2018) and HK$300 (for fees incurred from 9 February 2018 onwards) pursuant to Schedule 3 of the ECO.

(g)  In the month of July 2016, the month preceding the Accident, the applicant’s monthly earnings amounted to HK$18,200, consisting of:-

(i)  A base salary of HK$16,800 (HK$600/day x 28 days worked per month); and

(ii)  Meal provision of HK$1,400 (daily meal valued at HK$50 x 28 days worked per month), which forms part of the applicant’s earnings as per s 3 of the ECO.

(h)  With effect from 1 August 2016, immediately prior to the Accident, the applicant’s monthly earnings had increased to HK$20,900, consisting of:-

(i)  A base salary of HK$18,200  (HK$650/day x 28 days worked per month);

(ii)  Meal provision of HK$1,400 (daily meal valued at HK$50 x 28 days worked per month); and

(iii)  Pay for 2 days of paid leave per month of HK$1,300 (HK$650/day x 2 days). 

(i)  Subsequent to the Accident, the 3^rd respondent paid a total sum of HK$1,950 to the applicant, as partial compensation.

7.  The Employee’s Compensation (Ordinary Assessment) Board issued a Certificate of Assessment (Form 7) on 27 March 2019, which was superseded by a Certificate of Review of Assessment (Form 9) issued on 24 July 2019 (the “Form 9”).  The Form 9 certified that, as a result of her injuries suffered from the Accident:-

(a)  The applicant’s permanent loss of earning capacity is assessed to be 2%; and

(b)  The necessary sick leave granted to the applicant is a total of 435 days (7 to 12, 15 and 16 August 2016; 6 October 2016 to 14 June 2017; 7 September 2017 to 28 February 2018).

8.  In the absence of any appeal against the Form 9, pursuant to s  16H of the ECO, I accept the Form 9 as conclusive evidence of the matters stated therein: see also Ng Ming Cheong v Mass Transit Railway Corp [1997] HKLRD 1231 at 1236G-1237B per Le Pichon J (as she then was).

Assessment of compensation

9.  The applicant seeks compensation under the heads of ss 9, 10, and 10A of the ECO.

10.  I adopt HK$18,200 as the monthly earnings figure of the applicant under s 11(1)(a) of the ECO, and HK$20,900 as the enhanced monthly earnings figure of the applicant beyond 12 months of the Accident under s 11(1A)(a).

11.  Under s 9 of the ECO, compensation of permanent partial incapacity:-

(a)  For this head of compensation I adopt the enhanced monthly earnings figure of HK$20,900, following Tang Yam Kau v Key Asia Engineering Ltd (unrep DCEC 695/2011, 25 July 2014) at §§111-118 per Deputy District Judge Simon Ho.

(b)  The applicant was aged 29 at the time of the Accident.  The appropriate multiplier is therefore 96 months, as per s 7(1)(a) of the ECO.

(c)  The percentage of permanent loss of earning capacity, as per the Form 9, is 2%.

(d)  The payable compensation under this head is therefore HK$20,900 x 96 months x 2% = HK$40,128.

12.  Under s 10 of the ECO, compensation for temporary incapacity:-

(a)  In the present case, this head of compensation comprises a first period of 260 days of sick leave pay within the first 12 months of the Accident, and a second period of 175 days of sick leave pay beyond 12 months of the Accident.

(b)  For the first period, I adopt the monthly earnings figure of HK$18,200.  The payable compensation is therefore HK$18,200 x 4/5 statutory multiplier x 260/30 days = HK$126,186.67.

(c)  For the second period, I adopt the enhanced monthly earnings figure of HK$20,900.  The payable compensation is therefore HK$20,900 x 4/5 statutory multiplier x 175/30 days = HK$97,533.33

(d)  The total payable compensation under this head is therefore HK$223,721.

13.  Under s10A of the ECO, payment of medical expenses, as set out above the compensable medical expenses incurred by the applicant is HK$780.

14.  The total amount of compensation payable by the 3^rd respondent to the applicant is therefore:-

Pursuant to s 9 of the ECO	HK$40,128.00
Pursuant to s 10 of the ECO	HK$223,721.00
Pursuant to s 10A of the ECO	HK$780.00
Less:  Partial payment made by 3rd respondent	(HK$1,950.00)
Total:	HK$262,679.00

Orders & disposition

15.  The 3^rd respondent shall pay to the applicant compensation assessed in the sum of HK$262,679.  Interest shall accrue on this sum at half judgment rate from the date of the Accident to the date of judgment, and thereafter at judgment rate until payment in full.

16.  There shall be a costs order nisi that the 3^rd respondent bear the applicant’s costs of the assessment of compensation, to be taxed if not agreed.  Unless an application to vary is made by either party within 14 days, the costs order nisi shall become absolute without any further order from the court.

17.  The applicant’s own costs shall be taxed according to the Legal Aid Regulations (Cap 91A).