GURUNG BINOD v. AIRLINE HOTEL LTD

DCEC 2130/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2130 OF 2013

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JUDGMENT
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Application

1. On 29 November 2013, Mr Gurung filed an application to claim against the respondent for compensation for injury caused to him by an accident occurred on 13 October 2010 pursuant to the Employees’ Compensation Ordinance, Cap 282 (the “ECO”).

2. At this hearing, in the absence of opposition from the respondent, I exercised my discretion under section 14(4) of ECO to determine Mr Gurung’s application for compensation notwithstanding that the application has not been made within the 24 months specified under section 14(1) of the ECO. 

3. With the consent of the respondent, I also granted leave to Mr Gurung to amend the name of the respondent by adding “Limited” to “Airline Hotel” with no order as to costs.  I allowed Mr Gurung to file the Amended Application with the court immediately with the service on the respondent be dispensed with.

4. The respondent conceded liability.  I turn to assess the compensation. 

5. Mr Gurung and Mr Leung Kin Yip Eric, witness of the respondent, gave evidence in court.  They adopted the contents of their respective witness statements as evidence in chief.

The accident, injuries and treatments

6. Mr Gurung was employed by the respondent as a bar-waiter working at a hotel operated by the respondent.  On 13 October 2010, he sprained his back whilst lifting a barrel of beer from the back of the bar area to the bar counter.

7. Mr Gurung received medical treatment from the company doctor shortly after the accident.  Further medical treatments were received from the company doctors and the public hospitals.  Intermittent sick leave was granted to him for his back injury from 13 October 2010 to 3 March 2013.

8. Mr Gurung was assessed by the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) on 22 April 2014.  The Certificate of Assessment (Form 7) was issued on 5 May 2014 (the "Certificate").  He was assessed to have suffered from “back injury resulting in persistent low back pain, stiffness and right leg sciatica” as a result of the accident. The loss of earning capacity permanently caused by the injury was assessed to be 1.75% and the period of absence from duty necessary as a result of the injury was found to be 27 days.

9. There was no objection to the Certificate nor appeal under section 18 of the ECO.  Both parties agree to adopt the assessment of the Board for the purpose of assessing compensation. 

10. Mr Gurung specifically abandons his claim for compensation for his sick leave on 18 and 19 October 2012.  Both days are indeed not included in the Certificate. Both parties agree that Mr Gurung has received a total sum of $7,128.76 for periodical payments which should be deducted from the compensation.

11. The Parties agree to adopt $10,523.23 as the monthly earnings of Mr Gurung at the time of the accident for the purpose of assessing compensation under section 9 and 10 of ECO.

12. It is also agreed that the medical expenses paid by Mr Gurung for the medical treatments in respect of his injury is HK$500.

13. The only matter in dispute is that Mr Gurung does not agree to adopt a multiplier of 96 for the purpose of calculation of his entitlement under section 9 of ECO.  He however has not suggested any other figures nor has he adduced any evidence to substantiate his challenge.

14. Mr Gurung was born on 13 February 1980.  He was aged 30 at the time of the accident on 13 October 2010.  The nature of his injury could not be regarded as serious as assessed by the Board and demonstrated by the medical treatments he received and the sick leave granted to him.  The reality is that he had continued his employment by the respondent after the accident, until he resigned and left the employment on around 5 March 2013.  He enjoyed several salary increments during the period.

15. Pursuant to the combined effect of section 7 and section 9 of ECO, an employee under 40 years of age at the time of accident, a multiplier of 96 is applicable.  I do not find any circumstances to justify a departure from the application of 96.

Compensation

16. On the basis of the agreement between the parties on (i) pre-accident monthly earnings of $10,523.23; (ii) reasonable period of absence from duty of 27 days; (iii) permanent loss of earning capacity of 1.75%; (iv) periodical payment of $7,128.76 and (v) my finding of multiplier of 96, I now turn to assess employees’ compensation under the ECO.

17. The compensation for Mr Gurung's permanent partial incapacity pursuant to section 9 of the ECO is:-

  $10,523.23  x  96  x  1.75%  =  $17,679.03

18. The compensation for temporary loss of earning capacity pursuant to section 10 of the ECO as agreed is:-

  $10,523.23  x  4/5  x  27/30

  =  $7,576.73

  Less periodical payment

  $7,576.73  -  $7,128.76 (periodical payment)

  =  447.97

19. The medical expenses incurred as a result of the accident pursuant to section 10A of the ECO as agreed is $500. 

Summary on quantum

20. In summary, the total compensation awarded is as follows:-

(a)  section 9 compensation	$17,679.03
(b)  section 10 compensation	$447.97
(c)  section 10A compensation	$500
Total:	$18,627

21. I give judgment against the respondent for compensation to Mr Gurung in the sum of $18,627.  The respondent shall pay such sum with interest thereon at half judgment rate from the date of the accident to today and thereafter at judgment rate until payment in full.

22. There is no reason why Mr Gurung should not have costs of this action. I make an order nisi that the costs of this action, including all costs reserved, be paid by the respondent to Mr Gurung, to be taxed if not agreed. In the absence of application by Summons within 14 days to vary, the costs order shall become absolute.