BHANDARI LILA v. INTEGRATED HOSPITALITY MANAGEMENT LTD

DCEC 2166/2018

[2022] HKDC 24

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2166 OF 2018

-------------------------

-------------------------

---------------------

JUDGMENT

---------------------

A. Factual background

1.  This is an application (the “Application”) taken out by the applicant to claim compensation under sections 9, 10, and 10A, of the Employees’ Compensation Ordinance (“ECO”) against the respondent in respect of injuries arising from an accident (the “Accident”) which occurred on 15 November 2017.

2.  The applicant was born in Nepal and speaks Hindi. She attained primary school education in Nepal and came to Hong Kong in December 2001. She is married and has 3 children.

3.  On 3 August 2016, the applicant and the respondent entered into a service agreement (the “Service Agreement”) whereby the applicant was employed by the respondent at the restaurant of Stone Nullah Tavern, Wan Chai (the “Restaurant”). The working hours were from 9:00 am to 6:00 pm. She worked 6 days per week.

4.  The Service Agreement contained the following terms:-

“3. APPOINTMENT AND DURATION

3.1 The Company [i.e. the Respondent] hereby appoints the Executive [i.e. the Applicant] and the Executive agrees to serve the Company as Dishwasher in the Territory subject to and upon the terms and the conditions that are contained in this Agreement and the Company’s Staff Manual.

…

5. DUTIES OF THE EXECUTIVE

…

5.2 During the employment the Executive shall:

5.2.1 perform Back-of-House duties as set out in the attached job description;

5.2.2 undertake his/her duties and exercise such powers in relation to the Company and its business as the Board shall, from time to time, assign to or vest in him/her”

5.  On 15 November 2017 at around 10:30 am, the applicant was cleaning the glass wall of the Restaurant. She was standing on a ladder and there was nobody holding the ladder. Suddenly, she lost balance and fell from the ladder onto the ground. She suffered from right hip, right knee, and right back injuries.

6.  The applicant was subsequently taken by ambulance to Ruttonjee and Tang Shu Kin Hospitals (“RTSKH”) Accident and Emergency Department. She was admitted to the orthopaedic unit of RTSKH for 10 days. She was treated with analgesics, physiotherapy and occupational therapy for her right hip, right knee and right back. No surgery was performed. The pain improved and she was discharged on 24 November 2017.

7.  The applicant had persistent back pain, right hip and knee pain. She continued her follow up therapy at RTSKH. Her last follow up therapy was on 27 November 2018.

B. Evidence in these proceedings

8.  The applicant filed 1 witness statement on 27 February 2019. The respondent did not file any witness statement despite the unless order of Her Honour Judge Levy made on 4 December 2020. Consequently, by an order of the same Judge made on 30 April 2021, the respondent was debarred from calling any witness at trial.

9.  At the beginning of the trial, the applicant applied for leave to file a supplemental witness statement. The respondent did not appear. I granted leave accordingly.

10.  Apart from the applicant’s 2 witness statements, the applicant also gave oral evidence in court through an interpreter. There was also an expert report produced by Dr Chan Tun Kut (“Dr Chan”) dated 27 November 2020. Dr Chan examined the Applicant on 29 September 2020 at 10:30 am.

C. Liability

11.  According to s 5(1) of the ECO:-

“… if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”

12.  In Leung Hak Chai v Lamm Transportation Co Ltd [2014] 3 HKC 141, it was held by Fok JA (as he then was), at [35], that:-

“It is therefore necessary to keep in mind that there are two distinct and separate matters to be inquired into under s 5(1) on a claim for compensation. In some cases, it will be obvious that both the ‘arising out of’ and ‘in the course of’ requirements are satisfied and adopting a strict two-stage inquiry may be seen as being somewhat formal and rigid. However, in others, in may be less obvious or there may be an issue raised by the employer as to one or other of the requirements, in which case, it would be appropriate for the judge hearing the application for compensation to adopt the approach of asking (1) whether the injury by accident was sustained in the course of the employment, and then, if it was, asking the next question (2) whether it was an injury arising out of the employment.”

13.  As will be evident below, whatever approach to be adopted, the Applicant has in my view established her case on liability.

14.  In the Application, the Applicant pleads that:-

“1. (a) On 15 November 2017, a personal injury arising out of and in the course of employment was caused by accident to the Applicant, an employee employed by the Respondent.

(b) At all material times the Respondent was an employer within the meaning of the Employees’ Compensation Ordinance, Cap 282, Laws of Hong Kong (“the Ordinance”).”

15.  According to the Respondent’s Answer filed on 4 January 2021 (when it was legally represented), paragraph 1(a) and 1(b) of the Application was admitted. In other words, there was no dispute that:-

(1)  The applicant was an employee of the respondent at all material times;

(2)  There was a personal injury by accident caused to the applicant;

(3)  The personal injury by accident was sustained in the course of the employment; and

(4)  The person injury was arising out of the employment.

16.  The respondent’s grounds of defence appear to be based on the following:-

(1)  The applicant was only employed by the respondent as a Dishwasher in accordance with the Service Agreement; and

(2)  At the time of the accident, no instructions had been given by the respondent or its senior employees to the applicant to clean anything including the glass wall of the Restaurant.

17.  Leaving aside the fact that the grounds of defence do not sit well with the express admission by the respondent, I consider that they should be rejected for the following reasons.

18.  First, although Clause 3.1 of the Service Agreement provides that the applicant was employed as a dishwasher, the applicant was in fact also instructed to carry out cleaning work from time to time.

19.  For example, the Form 2 filed by the respondent on 15 February 2018 (“Form 2”) records that the applicant was a “DISHWASHER/CLEANER”. Further, in a roster/attendance record of the applicant for January 2017 prepared by the respondent, the position of the applicant was stated to be “cleaner am” (ie cleaner in the morning). In another Leave Application Form, “Cleaner” was also filled in by the respondent’s staff in the box of “position” as regards the applicant.

20.  It is also the applicant’s evidence that she was employed as both dishwasher and cleaner. The respondent has, as mentioned above, filed no evidence to the contrary.

21.  In these circumstances, it is plain that “dishwasher” in Clause 3.1 of the Service Agreement was only a label of the applicant duties. It is not meant the applicant’s only duty was to carry out dishwashing at the Restaurant. Relevantly, Clause 5.2 of the Service Agreement also provides that the applicant was required to perform other “Back-of-House duties as set out in the attached job description” and “undertake his/her duties…as the Board shall, from time to time, assign to or vest in him/her”. Although the “attached job description” was not disclosed by the respondent and the applicant was not given a copy at all material times, these Clauses are consistent with and in support of the applicant’s case that she was required to carry out works other than dishwashing.

22.  Second, as to whether the applicant was instructed to carry out the cleaning on the day of the Accident, the respondent’s bare allegation that she was not so instructed is not supported by any evidence.

23.  In any event, according to the applicant’s evidence, on the first day of her work, she was told by the head chef of the Restaurant, Ms Kamala Gurung that her work duties included cleaning (including cleaning the interior and exterior of the glass walls of the Restaurant), cleaning pots and dishes and he was required to perform these cleaning duties every day. Ms Gurung also told her to obtain the cleaning tools, including the sponge, squeegees and window wipes in the kitchen dishwashing area where the cleaning tools were stored and she could use the A-shaped ladder at the bar area whenever she needed to.

24.  In short, the glass wall cleaning work was within the applicant’s usual duties from the first day of work according to the respondent’s instructions. I accept the applicant’s evidence.

25.  As a result, I find in favour of the applicant on liability. In particular, I find that: (1) her injury by accident was sustained in the course of the employment, and (2) it was an injury arising out of the employment.

D. Quantum

D1. The applicant’s earnings

26.  The applicant was employed by the respondent since 3 August 2016. The respondent has produced a List of Earning on 4 January 2021 detailing the applicant’s earning for the 12 preceding months prior to the Accident. By the List of Earning, the applicant’s earnings for the period from November 2016 to October 2017 were suggested as follows:-

Period	Amount (HK$)
November 2016	13,000.00
December 2016	13,000.00
January 2017	Nil
February 2017	7,367.37
March 2017	13,000.00
April 2017	13,000.00
May 2017	13,000.00
June 2017	13,000.00
July 2017	13,000.00
August 2017	13,000.00
September 2017	13,000.00
October 2017	4,452.20

27.  The applicant agrees that the figures stated in the List of Earning were the monthly salaries she received in the past months.

28.  That said, the applicant further explained that free meals were provided to her by the respondent on every working day. She estimated that total value of food allowance to be $1,000 per month. Such estimation is consistent with the value of food allowance as submitted by the respondent in the Form 2.

29.  S 3 of the ECO provides that:-

“Earnings” means any wages paid in cash to the employee by the employer and any privilege or benefit which is capable of being estimated in money and includes the value of any food, fuel, or quarters supplied to the employee by the employer if as a result of the accident the employee is deprived of such food, fuel or quarters;…” (emphasis added)

30.  Food allowance has also been included in the assessment of pre-accident monthly earnings in Singh Navroop v Hospitality & Entertainment (International) Ltd (10/02/2015, DCEC 20/2013), at §§28-34. I would therefore so allow.

31.  Factoring the food allowance in the applicant’s earnings, they would be increased to:-

Period	Amount (HK$)
November 2016	14,000.00
December 2016	14,000.00
January 2017	Nil
February 2017	8,367.37
March 2017	14,000.00
April 2017	14,000.00
May 2017	14,000.00
June 2017	14,000.00
July 2017	14,000.00
August 2017	14,000.00
September 2017	14,000.00
October 2017	5,452.20

32.  Accordingly, the applicant’s salary for the month immediately preceding the date of the Accident should have been $5,452.20, and the average salary during the previous 12 months should be $11,651.6.

33.  S 11(1) of ECO reads:-

“(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings—

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

34.  The applicant’s monthly earning in the month preceding the Accident, ie October 2017 was less than her average earnings. According to s 11(1) of the ECO, I adopt the sum of $11,651.6 as multiplicand for assessment of sections 9 and 10 compensations.

D2. Section 9 Compensation

35.  The Medical Assessment Board assessed the applicant on 14 August 2018 and issued a Form 7 (Certificate of Assessment) on 28 August 2018. The applicant was found to have suffered “Multiple injuries resulting in (i) Right hip pain, stiffness; (ii) Right knee pain and weakness; (iii) Back pain, and (iv) Lower limb numbness”. Loss of earning capacity was assessed at 0.75%. Sick leave from 15 November 2017 to 14 August 2018 was endorsed.

36.  The Review Medical Assessment Board then re-assessed the Applicant on 27 November 2018 and issued a Form 9 (Certificate of Review of Assessment) on 11 December 2018. The applicant was found to have suffered “Multiple injuries resulting in (i) Back pain and numbness; (ii) Right hip pain and stiffness; and (iii) Right knee anterior cruciate ligament and meniscal tear, pain, and stiffness. Loss of earning capacity was reviewed and assessed at 7%. Sick leave from 15 November 2017 to 27 November 2018 was endorsed.

37.  Orthopaedic expert Dr Chan produced a Solo Orthopaedic Expert Report on 27 November 2020. Dr Chan concluded that the overall impairment of whole person and loss of earning of capacity is 7%.

38.  In such circumstances, I agree to adopt 7% being the applicant’s loss of earning capacity.

39.  The applicant was born on 18 March 1971. She was aged 46 at the time of the Accident. Thus, the applicable section for the calculation of compensation is found in s 7(1)(b) of the ECO, which allows the applicant to receive compensation in “a lump sum equal to 72 months’ earnings or 72 times the amount specified in the second column of the Sixth Schedule whichever is the less”.

40.  Accordingly, the applicant’s Section 9 compensation is:-

$11,651.6 x 72 x 7% = $58,724.06

D3. Section 10 Compensation

41.  The relevant part of s. 10 of the ECO provides:-

“10. Compensation in case of temporary incapacity

(1) Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned, or a lump sum calculated accordingly, having regard to the probable duration, and probable changes in the degree, of the incapacity. Such periodical payments shall be, or shall be at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident. (Amended 55 of 1969 s 10; 76 of 1982 s 7; 67 of 1996 s 3)

(2) For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury. (Added 55 of 1969 s 10. Amended 31 of 1985 s 2; 16 of 2006 s 13)”.

42.  Sick leave was granted to the applicant from 15 November 2017 until 27 November 2018. Form 9 endorsed the entire period of sick leave. The weight be attached to sick leave certificate is governed by s. 10(2) of ECO. Dr Chan also opined that sick leave granted until 27 November 2018 were within reasonable limits and should be endorsed.

43.  Accordingly, I agree that the applicant’s sick leave period from 15 November 2017 to 27 November 2018 for a total of 378 days as assessed by the MAB should be adopted:-

$11,651.60 x 378/30 x 4/5 = $117,448.13

D4. Section 10A Compensation

44.  A schedule of medical expenses has been exhibited. The total amount of s 10A compensation shall be $9,745.

D5. Post-Accident Payments made by the Respondent

45.  After the Accident, the respondent had made the following payments via direct deposit to the applicant’s bank account:-

Date	Amount (HK$)
1 December 2017	11,943.98
29 December 2017	9,880.00
1 February 2018	5,657.38
	________
Total:	27,481.36

46.  As the applicant worked for 0.5 month in November 2017, she was entitled to be paid, as salary (without taking into account the provision of food), of $13,000/2 = $6,500.

47.  After deducting $6,500 from $27,481.36, the total additional amount that the applicant received is $20,981.36.

48.  The applicant made further submissions in its letters dated 13 December 2021 and 22 December 2021. After considering those submissions, I am of the view that credit should be given for the sum of $20,981.36.

E. Conclusion

49.  For the reasons above, the applicant is entitled to be paid the following sum under the aforesaid heads of claim:-

Section 9	$58,724.06
Section 10	$117,448.13
Section 10A	$9,745.00
	__________
Subtotal	$185,917.19
	__________
Less:	($20,981.36)
	__________
Total:	$164,935.83
	=========

50.  The applicant is also entitled to interest on the above sum at half of the judgment rate from the date of the Accident (ie 15 November 2017) until the date of the judgment, and thereafter at judgment rate until full payment.

51.  The applicant is also entitled to costs of these proceedings (including all costs reserved), to be taxed if not agreed, with certificate for counsel.  The applicant’s own costs should be taxed in accordance with the Legal Aid Regulations.

52.  I thank counsel for his assistance.