TSUI LEUNG TAI v. GOOD HUGE LTD t/a SUNRISE SEAFOOD RESTAURANT

DCEC1206/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1206 OF 2009

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BETWEEN

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J U D G M E N T

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Introduction

1.  At the material time, the applicant was employed as a cleaning worker by the respondent at a restaurant operated by it on the 3rd Floor, Phase 1, Commercial Centre, Lei Tung Estate, Ap Lei Chau, Hong Kong. The applicant’s primary responsibility was to clean tableware and utensils used at the restaurant.

2.  It was the practice of the respondent to provide meals to its staff.  As would be expected, dinner would be provided to its staff relatively early before the dinner crowd started to patronise the restaurant.

3.  On 21 November 2007 at about 5.30 pm, the applicant was in the process of cleaning up the dining tables at which dinner had been served to the restaurant staff. There was apparently a patch of water on the floor which the applicant did not notice, and in the event, she stepped on it and slipped, lost her balance and landed on her waist and back (“the Accident”).

4.  This is a trial of the applicant’s claim for compensation pursuant to the Employees’ Compensation Ordinance, Cap.282 (“the ordinance”), specifically sections 9, 10 and 10A.  There is also an appeal against the Employees’ Compensation Ordinary Assessment Board’s certificate of review of assessment dated 20 May 2010, which had assessed the applicant to be suffering from permanent loss of earning capacity of 1 % (“the Review”).

5.  The respondent is a limited company whose registered office is situated at Unit No. 4, Lower Ground Floor, Star Centre, 443-451 Castle Peak Road, Kwai Chung, New Territories, Hong Kong.  The respondent has taken no part in these proceedings.  Mr Chung, appearing for the applicant, drew my attention to various affidavits of service deposing to due service of documents at the respondent’s registered address.Various notices including notice of trial posted by the court to the registered address have been returned by the post office.  In these circumstances, I proceeded with the trial in the absence of the respondent.

The Evidence

6.  The applicant gave evidence of the factual issues.  By the court’s order dated 10 December 2010, a report from a specialist in orthopaedics and traumatology, Dr Johnson C K Lam (“Dr Lam”) is to be admitted into evidence without calling Dr Lam.

7.  In addition to confirming the Accident happened as described above, the applicant also gave evidence that she was born in China on 26 June 1960 and was aged 47 at the time of the Accident.  She started her employment with the respondent on 1 August 2007 and she earned $5,600 per month.  She worked six days per week and her working hours were between 7.30 am and 6.00 pm.  She was diagnosed as suffering from coccyx injury resulting in lower back pain from the Accident and sought treatment from various public hospitals, incurring medical expenses in the sum of about HK$6,005.

8.  The documentary evidence reveals that the applicant was granted sick leave (not continuous) between 24 November 2007 to 19 May 2009, totalling 527 days.  Mr Chung has also drawn to my attention the fact that the respondent had already paid periodical payments in the sum of HK$48,553 to the applicant.  As stated earlier, the Review assessed the applicant as suffering from 1% permanent loss of earning capacity, which was an upward adjustment from the original assessment of 0.5 %, as stated in the certificate of assessment dated 20 February 2009.

9.  Dr Lam in his report dated 9 October 2010 diagnosed the applicant to be suffering from soft tissue injury to the back and the coccyx. There was also a suspected crack fracture at the coccyx which, if present, had healed uneventfully.  Although Dr Lam was of the opinion that the applicant was in all likelihood overstating the degree of pain of which she complained, he nevertheless was of the view that the applicant was suffering from genuine pain and some disability in the lower back and coccyx. 

10.  Dr Lam assessed the applicant’s permanent loss of earning capacity at 4% but attributed 1% of that percentage to pre-existing degeneration, thereby arriving at his view that the permanent loss of earning capacity attributable to the accident was 3%.  Dr Lam was also of the view that the period of sick leave granted to the applicant was appropriate and should be endorsed.

Liability

11.  There being no material to the contrary, I accept the factual evidence of the applicant and the medical opinion of Dr Lam.  The respondent is liable to compensate the applicant under the ordinance and I vary the Review to the extent of adjusting the assessment of permanent loss of earning capacity of 1% upward to 3%.  The quantum of the applicant’s compensation is to be determined on the foregoing bases.

Quantum

12.  The quantum of the applicant’s compensation is assessed as follows: 

Section 9-$5,600 x 72 x 3 per cent-that gives a figure of HK$12,096;

Section 10-HK$5,600 x 12 x 527 ¸ 365 x 4/5 - that gives a figure of HK$77,620.60;

Section 10A. The applicant has fairly given a reduction for payment made to Queen Mary Hospital for hospitalisation in the sum of $540 by reference to the maximum daily rate of $280 set out at paragraph 3 of schedule 3 of the ordinance.  It seems to me that that concession is fair but overly generous since it appears from the relevant supporting document that a sum of $450 was paid for hospitalisation for the period between 16 and 20 January 2009, a period of five days.  I will allow the full sum of HK$6,004.05.

Conclusion

13.  Therefore, judgment is entered against the respondent in the sum of HK$12,906 + $77,620.60 + $6,004.05 - $48,533, arriving at the sum of HK$47,187.65.  This sum carries interest at half judgment rate from the date of the accident until the date of judgment and thereafter at judgment rate until full payment.

(Discussion re costs)

14.  As to costs, having heard Mr Chung, there is no reason to depart from the usual rule that costs should follow the event.   I make an order that the respondent to pay to the applicant the costs of this application, to be taxed if not agreed, and that the applicant’s own costs be taxed in accordance with Legal Aid Regulation.