CHAN YUET YING v. LEE SUI WAI, deceased, formerly t/a 富華小廚

DCEC 1978/2013

[2018] HKDC 1587

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1978 OF 2013

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JUDGMENT

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Background

1.  The applicant (“Madam Chan”) worked as a dish washer, collecting and washing dirty dishes from the respondent’s shop at Shop F, Ground Floor, Shun Hing Building, 55-63B Hop Yick Road, Yuen Long, New Territories (the “Restaurant”).  Other than the usual dish washer duties, she was sometimes assigned to wash vegetables and mop the floor of the Restaurant. 

2.  On 6 February 2013, whilst she was walking down the step in the kitchen of the Restaurant to collect dirty dishes for wash, she slipped, lost balance and fell onto the ground (the “Accident”). The step was about 6 inches high. 

3.  Madam Chan claims that at the time of the Accident, she was employed by the respondent, and claims employees’ compensation against the respondent.

4.  The respondent had passed away on 4 January 2014.  Despite efforts made in securing the attendance of his relatives or personal representatives, no one ever took part in these proceedings for and on behalf of the respondent or his estate. 

5.  Pursuant to the Order of HH Judge CM Leung dated 6 May 2015, it was ordered that in accordance with Order 15 Rule 15 of the Rules of the District Court (Cap 336H), Madam Chan do proceed in the absence of a person representing the estate of the respondent, and that any judgment or order subsequently given shall bind the estate of the respondent. Interlocutory judgment was also entered against the respondent under the same Order.

6.  Pursuant to the Order of HH Judge Levy dated 3 August 2018, the assessment of compensation was set down and service on the respondent was dispensed with, in view of the Order dated 6 May 2015 and the fact that the respondent had no address for service.

7.  Thus the court is only concerned with the assessment of compensation at the present hearing.

Madam Chan’s injuries and treatment - Orthopaedics

8.  After the Accident, Madam Chan attended the Department of Accident & Emergency of the Tuen Mun Hospital for treatment.  Medical examination revealed tenderness over neck and back. Madam Chan was admitted to the Department of Orthopedics & Traumatology of Tuen Mun Hospital on 7 February 2013 for further treatment.  Diagnosis of sprain neck and right elbow was made.  Madam Chan was further referred to the Physiotherapy Department of Pok Oi Hospital for 11 physiotherapy treatment sessions, which started from 8 March 2013 to 6 June 2013.  Madam Chan attended a total of 10 sessions of occupational therapy programme which started in April 2013.  During the programme, Madam Chan complained of increased frequency of right calf cramp, with diffused back and sacral area pain.  According to the assessment result, Madam Chan’s performance was ranked as not matching her previous job demand and was suggested to continue a course of work hardening training.

9.  According to the orthopedics and traumatology specialist report of Dr Tio Man Kwun, Peter, as a result of the Accident, Madam Chan suffered the following:-

(a)  Persistent neck pain and stiffness;

(b)  Persistent right elbow pain;

(c)  Depression;

(d)  Right shoulder pain;

(e)  Declined general condition.

10.  Madam Chan was granted sick leave by the Department of Orthopaedics from 7 February 2013 to 28 May 2015, a total of 721 days (the “Orthopaedics Leave”). 

11.  According to Dr Tio, Madam Chan was assessed to have 6% whole person impairment and loss of earning capacity.

12.  In view of Madam Chan’s testimony in court and the fact that her evidence and the specialist medical report were unchallenged, I accept her orthopaedics injuries suffered are as stated and that they were caused by the Accident.

Madam Chan’s injuries and treatment – Depression

13.  According to the medical reports of Dr Tsui Chi Fong of Castle Peak Hospital, Madam Chan first attended the Tuen Mun Hospital on 20 January 2014 and was presented with depressed mood, low energy level, loss of interest, poor sleep and poor appetite together with suicidal ideas after sustaining the injuries in the Accident.  Mental examination showed that she was having a depressed mood.  She was diagnosed to be suffering from moderate depressive episode.  Madam Chan continued follow-up sessions with Dr Tsui in relation to her depression and in the latest assessment in January 2016, her mood remained depressed and was diagnosed to be suffering from moderate depressive episode with incomplete remission.

14.  Dr Tsui opined that Madam Chan’s psychiatric consultations and sick leave granted by the Castle Peak Hospital were related to the Accident.

15.  Madam Chan was further granted sick leave by the Castle Peak Hospital from 16 June 2014 to 14 January 2019 (2,168 days) for her depression (the “Depression Leave”).

16.  In view of Madam Chan’s testimony in court and the fact that the medical reports of Dr Tsui and her evidence were unchallenged, I accept her depression suffered is as stated and that it is related to the Accident.

Particulars of Madam Chan

17.  Madam Chan was born on 2 February 1961.  She was 52 years old at the time of the Accident and is now 57 years old.

18.  Madam Chan’s testimony was unchallenged. I accept she was earning an hourly rate of HK$40 at the time of the Accident. Her evidence was that she would work on average 10 hours a day (inclusive of overtime) for 26 days per month on average.  She also had two free meals provided each day, each meal valued at about HK$20.  Thus, her daily earnings come to HK$440.  Madam Chan was thus earning HK$440 x 26 days = HK$11,440 per month.

19.  Madam Chan is still on sick leave and has not resumed working.

Quantum - Section 9

20.  Madam Chan had been assessed by the Employees’ Compensation (Ordinary Assessment) Board on 6 July 2015 and 10 August 2015 to have a 5% loss of earning capacity.  The assessment remained as 5% after appeal.

21.  In the solo expert medical report made by Dr Tio dated 13 August 2018, Madam Chan had been assessed to have suffered 6% loss of earning capacity.  After considering Dr Tio’s detailed and well-reasoned report, I accept Madam Chan has suffered a 6% loss of earning capacity.

22.  Madam Chan’s claim under section 9 is thus:-

HK$11,440 x 72 x 6% = HK$49,420.8.

Quantum - Section 10

23.  Madam Chan was granted 721 days of Orthopaedics Leave and 2,168 days of Depression Leave (which exceeded the statutory limit of 36 months).  Ms Leung appearing for Madam Chan urged the court to adopt the maximum days of leave allowed, which is 36 months for the calculation of compensation under section 10. 

24.  After considering the various medical reports by Dr Tsui, the attending psychiatric doctor for Madam Chan, and the fact that Dr Tsui opined that the depression suffered by Madam Chan were related to the Accident, I am of the view that it is appropriate to adopt 36 months as the number of sick leave days for the calculation of section 10.

25.  The section 10 compensation is thus:-

HK$11,440 x 36 months x 4/5 = HK$329,472.

Section 10A

26.  Madam Chan claims a total sum of HK$12,578 as medical expenses and food supplement expenses as a result of the Accident.  These expenses are supported by receipts and invoices.  I will allow the sum in full.

Summary

27.  For the above reasons, I assess Madam Chan’s claim for compensation as follows:-

Section 9	HK$49,420.80
Section 10	HK$329,472.00
Section 10A	HK$12,578.00
Total:	HK$391,470.80

28.  I also award interest for the above compensation at half judgment rate from the date of the Accident, i.e. 6 February 2013 to the date of this Judgment, and thereafter at full judgment rate until full payment.

Costs

29.  I make an order nisi that the respondent shall pay the applicant’s costs of this action, including all costs reserved, to be taxed if not agreed.   This order nisi shall become absolute in the absence of any application for variation within 14 days.

30.  The applicant’s own costs be taxed in accordance with the legal Aid Regulations.

31.  I thank Ms Leung for her assistance.