Sami'an Sutinah v. Katrina Leung Wai-kuen and Another

DCEC615/2001
DCEC616/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 615 OF 2001

(Heard in conjunction with DCEC 616 OF 2001)

__________________________

__________________________

______________

R U L I N G

______________

1. In this matter the applicant seeks judgment to be entered against the 1st respondent.

2. It is an application which is made under Order 18 Rule 19 of the Rules of the District Court on the basis that the defence discloses no reasonable defence or alternatively that it is frivolous, vexatious, or is an abuse of the process of court.

3. The background to this is rather distressing. The 1st respondent employed the applicant, who is an Indonesian, as domestic helper to live and work at her home doing the usual range of domestic duties. It appears that the maid was assaulted outside what one would reasonably call ordinary working hours. This was in the early hours of the morning, firstly on 10 October and then subsequently on 11 October 2000.

4. The 1st respondent was subsequently arrested, prosecuted, and she is now serving, no doubt a thoroughly well deserved, 22 month prison sentence for offences of assault occasioning actual bodily harm and for assault causing grievous bodily harm. She will not be released from that sentence until August this year.

5. In order to succeed, an applicant must show - this is under section 5(1) of the Employees' Compensation Ordinance - that the injuries that she sustained were caused by an accident in the course of and arising out of her employment.

6. It seems to me, on the basis of the material currently before the court, that there is a proper argument as to whether these assaults could properly be said to have arisen in the course of or out of the employment.

7. Mr Sit says people like the applicant are required under the standard terms of the employment contract to reside at the employer's home and they are very much at the beck and call of the employer 24 hours a day, although perhaps that is putting it too high because of course, although these domestic helpers work very long hours, they certainly do not work from 9 to 5, they work, many of them, up to 16 hours a day, I suppose. But these are assaults that took place in the middle of the night and one wonders really at this stage, considering the matter at first blush, whether this is an appropriate way of proceeding.

8. Certainly the facts give rise to a very strong case for damages for personal injury pain and suffering and indeed for aggravated damages, quite possibly. But I simply do not think it would be right, without hearing the evidence in full, on the basis of what I have seen, that is to say, the application, the answer, knowing of the certificate of conviction, whether it would be right to enter judgment on liability. I do not think it would be right and so I decline to make that order. So that disposes of that.

9. On this application there will be an order of costs in the cause with Legal Aid taxation of the applicant's costs.