DELA ZILWA SUVENI DAMMIKA v. PIZZAEXPRESS (HONG KONG) LTD

DCEC 655/2025

[2026] HKDC 186

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 655 OF 2025

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REASONS FOR DECISION

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THE APPLICATION

1.  This is the Applicant’s application for interim payment in the sum of $84,000, or as the court thinks just, made pursuant to her summons filed on 3 June 2025.

2.  In the written submissions prepared by her solicitors, the Applicant asked for $147,000 in total. However, Mr. Massie, solicitor appearing for the Applicant, at the hearing told this court that the Applicant would only seek for the sum of $60,900.

BACKGROUND

3.  It is undisputed that the Applicant first started working for the Respondent on 1 (or 2) August 2021, and that on 9 April 2024, while in the course of employment with the Respondent and carrying out her duty, the Applicant met an accident at work (the “Accident”). The Applicant alleged that she sustained injuries at her lower back as a result of the Accident.

4.  There is no dispute that intermittent sick leaves from 10 April 2024 were granted to the Applicant, and that the Applicant returned to work with the Respondent on two occasions, namely, from 14 to 24 April 2024, and from 29 April to 21 June 2024. At least at the time of this application, the Applicant was still on sick leave and has not returned to work since 21 June 2024. The Applicant has not yet been assessed by the Employees’ Compensation (Ordinary Assessment) Board or the Employees’ Compensation (Special Assessment) Board (collectively the “Board”).

5.  It is also not disputed that the Respondent has paid the Applicant advance payments in the total sum of $88,063.33, out of which $79,901.33 being periodical payments and $8,162 being medical expenses reimbursements, pursuant to section 10 and section 10A of the Employees’ Compensation Ordinance (Cap.282) (“ECO”) respectively. The last periodical payment was made in November 2024, and the last medical expenses reimbursement was made on 6 December 2024.

6.  In or around November 2024, before the commencement of the present Employees’ Compensation Case (“EC Case”), the Respondent through the loss adjuster engaged by them, namely United Adjusters (HK) Ltd., arranged the Applicant to undergo a medical examination on 26 November 2024 with the doctor appointed by the Respondent, namely Dr. Ian Wong (“Dr. Wong”) pursuant to section 16 of the ECO. Dr. Wong then prepared two medical reports of the Applicant both dated 27 November 2024 (collectively “Dr. Wong’s Reports”).

7.  In Dr. Wong’s Reports, it is stated, inter alia, that the Applicant “has reached maximal medical improvement and is suitable for assessment”, that “Orthopaedically, [the Applicant] should be able to resume her pre-injury work as restaurant with mild reduction in work capacity on frequent heavy lifting and carrying as well as prolonged standing and walking”, and that “Orthopaedically and in view of her occupation, I agree with sick leave granted by her treating doctors till 11/2024. Her condition is static and will not benefit from further sick leave.” It is also stated therein that “the recommendation is 6% WPI [meaning Whole Person Impairment] for her current condition. After adjustment is made for pre-existing condition, [the Applicant] is assessed to have 3% WPI as the result of alleged accident. The LOEC [meaning Loss of Earning Capacity] recommendation is 3%.”

8.  It is the Respondent’s case that “to avoid overpaying the Applicant (which may be irrecoverable by the Respondent and could thereby cause great hardship to the Respondent), the Respondent is entitled not to pay further periodical payment to the Applicant from December 2024 onwards.”

9.  The Respondent therefore stopped making further periodical payment or reimbursing the Applicant’s medical expenses since December 2024. It had not made any application to or sought directions from court before it has done so.

THE PRESENT EC CASE AND THE PRESENT APPLICATION

10.  On 26 March 2025, the Applicant’s solicitors, on the assignment of the Director of Legal Aid and on behalf of the Applicant, filed the Application in this EC Case and claims compensation from the Respondent arising from the Accident.

11.  The Applicant said that without the Respondent’s payments, she was not able to make a living. Hence, three demand letters respectively dated 17, 22 and 28 April 2025 were issued to the Respondent and later to the solicitors for the Respondent on behalf of the Applicant requesting the Respondent to resume payments to her. However, despite the said demand letters, no further payments have been made to the Applicant by the Respondent (or its insurer).

12.  The Applicant’s solicitors therefore on 3 June 2025 took out the present application for interim payments on behalf of the Applicant, returnable on 2 July 2025. The Respondent opposed. By consent, the said hearing was vacated with directions for parties to file affidavit evidence, and the application was adjourned for argument.

13.  Subsequently, liability was admitted by the Respondent (without prejudice to any issue that may arise in the related common law claim, if any, and without admission to the circumstances and manner in which the accident allegedly occurred and the extent of injuries the Applicant allegedly suffered), and interlocutory judgement has been entered for the Applicant against the Respondent, leaving compensation to be assessed, pursuant to an Order dated 27 August 2025 made upon the Consent Summons filed in court on the same day.

14.  I heard the parties’ arguments on 31 December 2025. At the end of the hearing, I ordered that the Respondent shall pay the Applicant interim payments in the sum of $38,988 with costs. Hereinbelow are my reasons.

LEGAL PRINCIPLES

15.  In Top One International (China) Property Group Company Limited & Another v Top One Property Group Limited & Others (CACV 269/2011, unreported, 20 July 2012), Bharwaney J (agreed by Lunn JA) had the following to say:

“15. …Before making an order for interim payment, the court must be satisfied, on a balance of probabilities, that the plaintiff will succeed in obtaining judgment on liability and, in addition, that he will obtain an award of substantial damages. However, where, as in this case, interlocutory judgment for damages has already been entered, the court must approach the matter, as the learned deputy judge rightly did, by having regard to the provisions of RHC O.29, r.11 which state:

“(1) If, on the hearing of an application under rule 10 in an action for damages, the Court is satisfied --

(b) that the plaintiff has obtained judgment against the respondent for damages to be assessed…

The Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counterclaim on which the respondent may be entitled to rely.”

16. There is no better statement of the correct approach than that of O’Conner LJ in Newport (Essex) Engineering v Press & Shear Machinery 24 BLR 71 at pp.76-77:

“The power to make or refuse an order is discretionary so that this court will only interfere on the well established principles. An interim payment is defined by rule 9 as

‘a payment on account of any damages the defendant may be held liable to pay to the plaintiff’.

Rule 11(1) provides that the payment on account is not to exceed

‘a reasonable proportion of the damages which, in the opinion of the court, are likely to be recovered by the plaintiff’.

Lastly, if the court decides to make an order, the amount is to be such

‘as it thinks just’.

The court has to make an estimate of the damages which are

‘likely to be recovered’;

that is, when the issue is finally determined. The ease or difficulty in making such an estimate will vary enormously from case to case. In some cases it is quite impossible to make a useful estimate without hearing the case out. Are plaintiffs in such cases to be excluded from obtaining an interim payment? I think not, for, on the material available to the court hearing the application, the court may be in a position to say

‘the plaintiff should recover at least £x and is likely to recover more or a great deal more’.

In such a case, I do not think it would be wrong to say that £x itself is a reasonable proportion. In contrast, if the court can say

‘the plaintiff should recover at least £x, but is unlikely to recover more’,

then £x itself becomes the likely award and a reasonable proportion should be something substantially less than £x.

I do not think it desirable that applications for interim payments should turn into long drawn out investigations into the very issues which are to form the subject matter of a future hearing. The wide discretion given to the court, coupled with the safety net for the defendants in rule 17, show that these applications should be decided on a fairly broad approach, with a minimum of expense to the parties.”

17. The statement by Recorder J Leong, that the court has to make an “educated guess”, is a colloquial way of expressing the task of the court that has to undertake, namely, to make an estimate of the damages that are likely to be awarded, which it must do by judiciously weighing the evidence presented to it, giving it such weight that it deserves, and remembering that it is not to conduct an assessment of the damages to be awarded, which the function of a future court. Once the court has made that estimate, it must award a reasonable proportion of that estimate, taking into account the financial ability of the plaintiff to repay any overpayment should it transpire, after the assessment of damages has been concluded, that the estimate was wrong, and taking into account the hardship to the defendant from having to make an immediate payment and from being unable to recover any overpayment.

18. To suggest that the court has to approach the task of estimating the damages that are likely to be awarded, by making findings on the evidence “on a balance of probabilities”, is to confuse the role of the court on an application for interim payment and the court of the court conducting the assessment of damages. On an application for interim payment, the court must adopt a fairly broad approach, with minimum expense to the parties, and make an estimate, on the evidence that has been adduced, of the likely award of damages and award a reasonable proportion of that estimate. Of course, the court will decline to award any interim payment if it is not satisfied that the plaintiff is likely to obtain an award of substantial damages.”[1]

16.  Concerning compensation for temporary incapacity under section 10 of the ECO, Fok JA (as he then was) in Kan Wai Ming v Hong Kong Airport Services Ltd (CACV 240/2010, unreported, 26 May 2011) said (agreed by Tang Acting CJHC and Hartmann JA) in paras 16 & 17 as follows:

“16. By section 10(2) a period of absence from duty certified to be necessary by one of the stipulated persons or bodies is deemed to be “a period of total temporary incapacity irrespective of the outcome of the injury”. A sick leave certificate issued by a registered medical practitioner is the usual manner in which an injured employee obtains such certification to establish temporary incapacity for the purposes of section 10(1).

17. The presumption that a period of absence from duty so certified is a period of total temporary incapacity is rebuttable: see Yu Tat Kam v Chu Tung Shing & anor, unrep., CACV 25/2008, 8.10.09 at §§23–27. Thus, under section 16, an employer is entitled to require an employee who is in receipt of a periodical payment under section 10 to undergo a medical examination and if the employee does not do so, his right to compensation is suspended until the examination takes place. The employer is therefore able to obtain independent medical evidence which he may rely upon to rebut the presumption created by section 10(2).”

17.  Further, in Tse Tsz Chong v. Law Sze Man [2015] 1 HKLRD 1120, Lam VP (as he then was) giving the reasons for judgment of the Court of Appeal said as follows:

“27. The applicant put forward a calculation of her claim in the total sum of $170,393 and relied on sick leave certificates issued to her by various doctors up to 439 days. On the other hand, the respondent contended that the applicant’s complaints were not supported by objective medical findings …

28. … In the context of employee compensation claims, the weight to be attached to sick leave certificates is governed by s 10(2) of the Employees’ Compensation Ordinance (Cap.282). The Judge did not address this section in her judgment of 15 September 2014. Though she referred to it in her subsequent decision on refusal of leave to appeal, she did not refer to relevant Court of Appeal authorities on the effect of this section: Yu Tat Kam v Chu Tung Shing [2009] 6 HKC 411 and Kan Wai Ming v Hong Kong Airport Services Ltd [2011] 3 HKC 582. In a nutshell, the correct legal position is this: s.10(2) set out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim. The burden is on an employer to rebut that presumption.”

JURISDICTION OF THE COURT

18.  The court has jurisdiction to make an order for interim payment if one of the limbs under Order 29, rule 11(1) of the Rules of the District Court (Cap.336H) (“RDC”) is satisfied.

19.  Order 29, rule 11(1) of the RDC provides that:

“If, on the hearing of an application under rule 10 in an action for damages, the Court is satisfied --

(a) that the defendant against whom the order is sought (in this paragraph referred to as the respondent) has admitted liability for the plaintiff’s damages; or

(b) that the plaintiff has obtained judgment against the respondent for damages to be assessed; or

(c) that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are 2 or more defendants, against any of them,

the Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counterclaim on which the respondent may be entitled to rely.

20.  In the present case, interlocutory judgment on liability was entered in favour of the Applicant against the Respondent on 27 August 2025 leaving compensation to be assessed. Order 29, rule 11(1)(b) is therefore satisfied. Mr. Lee, Counsel for the Respondent, at the hearing also confirmed that rule 11(1)(b) is the relevant paragraph for the present purposes, although in his written submissions he stated that “ground (a) is the correct starting point”.

AMOUNT OF COMPENSATION LIKELY TO BE RECOVERED

21.  The next question that the court has to consider is the amount of compensation which is likely to be recovered by the Applicant. Although this court should weigh the evidence placed before me and estimate the amount of compensation which is likely to be awarded, it must be borne in mind that a fairly broad approach should be adopted, as it is not the function of this court to do a final assessment of compensation at this stage.

Section 9 compensation

22.  The Applicant was 48 years old at the time of the Accident. The applicable multiplier is therefore 72 as fixed by section 7 of the ECO.

23.  Mr. Lee first told this court that the figure of $17,500 could be adopted as the Applicant’s monthly earnings. However, Mr. Massie informed this court that in fact there is a List of Earnings filed by the Respondent on 30 September 2025 showing that the Applicant’s monthly earnings were from $18,050 to $18,350 between April 2023 and March 2024. For the present application, the Applicant’s monthly earnings for the purpose of section 9 of ECO is taken to be $18,050.

24.  No Form 7 has been issued yet, and therefore no loss has yet been assessed by the Board. However, according to the doctor engaged by the Respondent, namely Dr. Wong, the Applicant’s loss of earning capacity is 3%. At this stage, this is the only available information before this court about the percentage of the Applicant’s permanent loss of earning capacity caused by the injuries as far as section 9 compensation is concerned.

25.  Having taken into consideration the injuries suffered and the opinion of Dr. Wong on the Applicant’s loss of earning capacity, the amount of section 9 compensation which is likely to be recovered by the Applicant would be at least in the sum of $38,988 ($18,050 x 72 x 3%), and it is not impossible that the Applicant will recover more than that amount after the issuance of Form 7 (or Form 9).

Section 10 compensation

26.  It is the Applicant’s evidence that she was granted sick leave from 10 April 2024, and continuing. However, as mentioned hereinabove, the Respondent stopped making periodical payments to her since December 2024. The Applicant affirmed that up to May 2025, the amount due should be $84,000 ($17,500 x 4/5 x 6 months), and $112,000 up to the date of her 2^nd Affirmation, i.e. 28 August 2025.

27.  For the purpose of section 10 compensation, section 10(2) of the ECO set out a rebuttable presumption that the sick leave period certified by registered medical practitioner shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury. The burden is on the employer to rebut that presumption.

28.  In this case, the Respondent has put forward Dr. Wong’s Reports as evidence, which may or may not be able to rebut the statutory presumption at the final assessment of compensation.

29.  Further, the Respondent also alleged that the Applicant has a “doctor-surfing” behaviour. It was submitted that despite the sick leave certificates granted to the Applicant, she is still capable of earning. However, it is also the opinion of Dr. Wong that sick leave granted to the Applicant by her treating doctors up to November 2024 is appropriate. Hence, the only dispute is, whether further sick leave should be granted to the Applicant and therefore whether the Applicant is entitled to section 10 compensation after November 2024: the Applicant says yes and the Respondent says no.

30.  The Respondent also submitted that it was not clear as to how the Accident occurred, although it does not dispute that the Applicant did sustain a work injury on 9 April 2024. The Respondent alleged that there were multiple differing accounts of how the Accident occurred appearing in different documents. Besides, it was submitted that there were, on the medical notes and records disclosed by the Applicant, at least two additional accidents occurred to the Applicant after the Accident.

31.  The Respondent submitted that the aforesaid discrepancies and the injuries sustained after the Accident would go to the extent of the Applicant’s injuries and the reasonableness of sick leave, and therefore the amount of compensation payable to the Applicant.

32.  On the other hand, the Applicant said that she could not return to work at this stage. Every occupational therapy report said that she was unfit to do her job for the time being after evaluating her progress and the details of her job requirements. Further, the Applicant said that Dr. Wong did not have the opportunity to read those occupational therapy reports when he gave his opinion, because they were only obtained after the date of Dr. Wong’s Reports.

33.  Given the serious dispute as to the amount of the compensation under section 10, I am of the view that it should be left to the judge who will hear the assessment of compensation (the “trial Judge”).

Section 10A compensation

34.  In relation to medical expenses, it is common ground that the Respondent has not made any further payments of medical expenses to the Applicant since December 2024, after having paid her $8,162. According to the certificate dated 18 July 2025 issued by the North Lantau Hospital, a total sum of $14,600 has been incurred by the Applicant from 9 April 2024 to 7 July 2025. Hence, the total outstanding amount is at least $6,438 ($14,600 - $8,162).

35.  The Respondent did not submit that those medical expenses were not incurred for the medical treatment in respect of the Applicant’s injuries caused by the Accident. Mr. Lee accepted that section 10A only requires that medical expenses are incurred for the medical treatment in respect of personal injury caused to an employee by the accident in question. There is no legal requirement that medical expenses had to be incurred within the period of absence found to be necessary by the court under section 10. See Pak Sai Ming v. J V Fitness Limited, DCEC 494/2014, 17 June 2016 per His Honour Judge Alex Lee (as he then was). The learned Judge also mentioned in the judgment that “one can readily think of a situation where an employee may reasonably incur medical expenses even though he had not taken any sick leave”.

36.  In the circumstance, in my view, the further amount of section 10A compensation which the Applicant is likely to recover will be at least in the said sum of $6,438.

37.  If the above figures are accepted by the trial Judge, the total amount of sections 9 and 10A compensation will be at least $45,426.

Reasonable proportion of the estimated award

38.  I have ruled above that the amount of section 9 compensation which is likely to be recovered by the Applicant would be at least in the sum of $38,988, and that the amount under section 10A is at least $6,438, making a total of at least $45,426.

39.  Adopting the approach explained in the Tse Tsz Chong case (supra), the potential prejudice to the Respondent in case of overpayment should also be taken into account, and according to Order 29, rule 11 of RDC, only a reasonable proportion of the damages (and in this case the compensation) should be awarded as interim payment.

40.  Having considered the financial circumstances of the Applicant, I am of the view that the level of interim payment, if an order is made, should be set at $38,988.

41.  This is a very modest amount. I do not think it would cause any prejudice or hardship to the Respondent for having to make this interim payment.

ORDER

42.  I therefore order that the Respondent shall make interim payment to the Applicant in the sum of $38,988.

COSTS

43.  Having heard parties’ submissions on costs, I ordered that the Respondent shall bear the costs of the Applicant of this application, and the Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations. Upon the confirmation of the Applicant’s solicitors that they would waive the right to any further sum of money in respect of the costs of this application by way of Summons filed on 3 June 2025, such costs were assessed summarily on paper pursuant to Order 62, rule 9A(1)(a) of the RDC.

44.  After perusing and considering the Applicant’s Statement of Costs and the Respondent’s List of Objections, the Applicant’s costs are summarily assessed at $45,722.