WONG YUEN CHING v. CHU YUK CHU t/a PUPPY TEAM AND ANOTHER

DCEC 1695/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1695 OF 2012

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IN THE MATTER OF AN APPLICATION BETWEEN

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ASSESSMENT OF COMPENSATION

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Background

1. This is an application by Madam Wong Yuen Ching under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (the “Ordinance”) for compensation for injury caused to her by an accident on 17 October 2010. It is her case that the accident occurred out of and in the course of her employment with the two respondents.

2. The two respondents took no step to defend the claim.  On 6 June 2014, Madam Wong obtained judgment on liability against them in their absence.  This is the assessment of compensation.

3. Both of the respondents are absent at today’s hearing.  I am satisfied that sufficient notice of these proceedings and the assessment hearing has been given to them.  The assessment hearing proceeds in their absence.

4. Madam Wong is the only witness who testifies in court.  She adopts the contents of her witness statement as her evidence in chief.

The accident

5. At the time of the accident on 17 October 2010, Madam Wong was employed as a pet groomer by the two respondents.  While in the course of her employment, she was instructed to attend a poodle for grooming services.  It was about 6 kg in weight and about 1.5 feet x 10 inches in size.  It was placed on a stool.  When she held the dog and was about to uplift it, it caused the toppling of the stool which scared it.  It bit her chin and right face.  The owner of the dog then removed it from her.

6. As a result, Madam Wong sustained facial injuries.

Injury and treatment

7. Madam Wong attended Pok Oi Hospital for medical treatment immediately after the accident.  Examination showed 0.8 cm wound over her chin and multiple small wounds over her right face.  She was discharged on the same day. 

8. It took one to two months for the wounds to heal.  Afterwards she still had itchiness and on and off pain round the wound.  On 2 November 2010, she reported to have nightmares, flashback, low mood and was referred to Pok Oi Hospital Family Medicine Specialist Clinic for management of mood problem.  She was subsequently referred to the Psychiatrist of Castle Peak Hospital and the Plastic Surgery unit of the Tuen Mun Hospital for management.

9. Madam Wong was diagnosed to have Mild Depressive Episode without Somatic Syndrome with features of Post Traumatic Stress Disorder by Dr Lam of Castle Peak Hospital.  She was referred to clinical psychologist for cognitive behavioral therapy.

10. Madam Wong was followed up in various outpatient clinics including Family Medicine, Psychiatry, psychology and Surgery of the public medical establishments.  She also consulted private clinics for wound pain and scar.

11. Continuous sick leave was granted to Madam Wong for facial injury and subsequently for depression from the day of the accident up to 17 October 2012. 

12. Madam Wong was assessed by the Employees’ Compensation (Ordinary Assessment) Board to have suffered 5.4% permanent loss of earning capacity in respect of “facial injury resulting in facial pain and scar and post-traumatic stress disorder” as set out in Certificate of Assessment (Form 7) dated 2 April 2013.  The sick leave granted from 17 October 2010 up to 17 October 2012 was endorsed.

13. The assessment of permanent loss of earning capacity was adjusted to 5.5% in respect of “facial injury resulting in facial pain, scar and itchiness and post-traumatic stress disorder” upon review as set out in Certificate of Review of Assessment (Form 9) dated 9 December 2013.  The sick leave period was endorsed.  Madam Wong filed a Notice of Appeal against this assessment with this court.

14. Madam Wong’s evidence is that despite treatment, she has suffered and continues to suffer from the scar, residual itchiness and pain from the wound.  She has fluctuation of mood.  She has been unemployed from the accident up to present.

15. Madam Wong has not received any payment relating to the accident from the two respondents. 

Pre-accident earnings

16. Madam Wong was born on 22 August 1989 and was aged 21 at the time of the accident. 

17. In the Amended Application filed on 11 October 2013,  Madam Wong stated that:-

(a)  for the month immediately preceding the accident, September of 2010, her total salary is $13,300, being the aggregate sum of:-

(i) basic salary	$9,000
(ii) commission on dog sales	$1,800
(iii) commission on grooming service	$1,500
(iv) commission on turnover	$1,000

(b)  for the average monthly salary from 1 June 2010 to 30 September 2010 is $12,900, being the aggregate sum of:-

(i) basic salary	$8,500
(ii) commission on dog sales	$2,400
(iii) commission on grooming service	$1,000
(iv) commission on turnover	$1,000

18. Madam Wong's case is that she started to work for the respondents as a pet groomer on 1 June 2010.  The employment agreement was made orally.  She did not sign any employment contract.  Apart from the basic salary, she was entitled to three types of commission: (a) commission which were calculated at the rate of 10% on the income generated from selling dogs by her (“Dog Sales Commission”); (b)  commission on the turnover of the shop (“Shop Commission”) and commission on the income generated from grooming services provided by her (“Grooming Commission”) and the commission is fixed in the sum of $500, $1,500 and $11,500 upon the grooming services turnover reached respective sums of HK$30,000,  $50,000 and $100,000.

19. Madam Wong's monthly basic salary was $8,000 for June, $8,500 for July, $8,500 for August.  Since 1 September 2010, her monthly basic salary had been increased to $9,000. 

20. In her witness statement dated 16 June 2014, Madam Wong stated that in average, she sold 3 dogs each month.  As to the Grooming Commission, she earned a monthly sum of $500 for two months and a monthly sum of $1,500 for another two months.  As to the Shop Commission, she once earned $1,000 and once $1,500.

21. Her salary was paid in cash. There was no documentary proof.  She remembered that her salary for September was $13,300, being the total of $9,000 for basic salary, $1,800 for Dog Sales Commission, $1,500 for Grooming Commission and $1,000 for Shop Commission.  However, she could not recall the commissions she actually earned in the first three months but believed that the differences should be $1,000 to $2,000 only.

22. Madam Wong’s allegations above are inconsistent with her evidence given to various authorities in 2011.  First, in her action claiming for unpaid wages for the period from 1 to 16 October 2010 against the 1^st  respondent in the Minor Employment Claims Adjudication Board in January 2011, she only claimed for a basic salary of $4,800, being $9,000 x 16/30.  No commission was claimed.  In January 2011, judgment was entered against the 1^st respondent as claimed.

23. Second, in each of her 3 written declarations given to the Labour Department on 16 March 2011 for the purpose of prosecuting the 2^nd respondent for the criminal offence of failing to pay wages, she declared that her monthly salary （原文為"薪金"） consisted of basic salary only, ie $9,000 for September 2010.  No commission was mentioned.

24. Third, in her supplemental written declaration dated 20 April 2011, Madam Wong only supplemented that in addition to basic salary, she was entitled to commission on the income generated from selling pets by her.  As she did not sell any pet in October, she was not entitled to any commission.  In September 2013, the 2^nd respondent was convicted of the charge of failing to pay wages.

25. Fourth, in her witness statement given to the Mandatory Provident Fund Schemes Authority on 11 August 2011, Madam Wong gave evidence that:-

(a)   her salary（原文爲"薪金"）only consisted of basic salary (ie $9,000 for September) plus commission on the income generated from selling pets by her. 

(b)   she had never sold any pet throughout her employment and accordingly could not recall any details relating to such commission. （原文爲"但我在職期間，我並無賣出過寵物，因此我並不記得有關佣金應該是多少。"）

(c)   her payments of salary were not on time and  a sum of several thousand dollars was given to her in each occasion（原文爲"但她出糧給我並不準時及每次都是幾千元給我的"）

(d)   her income（原文爲"入息"）during her employment from 1 June 2010 to 16 October 2010 were : $8,000 for June; $8,500 for July; $9,000 for August onwards; $4,800 for the period between 1 and 16 October 2010.

26.  When asked to explain the inconsistencies between her allegations in the present case and her evidence given to those authorities as set out above, in particular, her silence on Grooming Commission and Shop Commission as well as her statement of not selling any pet throughout her employment hence no Dog Sales Commission, Madam Wong says that those written declarations and statement were given by her for the purpose of prosecuting her employers for failing to pay her wages and mandatory provident funds, she therefore thought that only basic salary was relevant but not commission as she was upset at that time and aimed at punishing her employers.

27. I do not accept Madam Wong's explanation.  First, her claim in the Minor Employment Claims Adjudication Board was for payment of unpaid wages.  There is no valid reason for her just to claim for basic salary but leaving the commission unpaid.  It is highly unlikely that the shop would have generated no income at all and accordingly no commission for her for more than half month.  Her further explanation that she did not know that she could claim for commission in the said action runs counter to the fact that her claim was made under the Employment Ordinance, Cap 57.  Commission is regarded as wages under section 2 of the Employment Ordinance bearing in mind that her claim was proceeded with the assistance of the Labour Department and the Minor Employment Claims Adjudication Board.

28. Second, in all those written declarations and statements, she was specifically asked to set out in details the structure of her salary（薪金）/ income（入息）item by item.  She was also asked to list out all her monthly incomes during employment in a table form.  To this, she gave no valid reason for not complying with such requests.

29. Third, Madam Wong was further specifically asked to state all the terms of her employment agreement with her employers.  Again, she gave no solid reason for her failure to mention about the Grooming Commission and the Shop Commission.

30. Fourth, the fact that she has mentioned about the Dog Sales Commission in some of the written declarations further undermines her allegation that she thought the commissions were irrelevant and therefore chose not to mention about them in any of her written declarations.

31. Fifth, Madam Wong's clear statement that she did not sell any pet during her employment is another strong evidence to disprove her claim for Dogs Sales Commission in the present case.

32. It is noteworthy that in her witness statement to the Mandatory Provident Fund Schemes Authority, Madam Wong alleged that the 2^nd Respondent had promised to give her the difference between the grooming service fees normally charged by her for the grooming services she provided to her own customers at their homes and the fees actually charged by the shop for the services she provided to such customers in the shop instead of at their homes.  However, such payments, if any, were not claimed for or included in the Amended Application or her witness statement. There were no details on how much and when such payments were made.

33. By reason of matters set out above and in the absence of any documentary proof in support of her alleged income, I find that under the employment agreement, Madam Wong was only entitled to receive basic salary plus Dog Sales Commission but not the Grooming Commission or the Shop Commission as alleged.  Further, I am not convinced that she has ever sold any pet or earned any commission during her employment.  I do not accept her monthly income was $13,300 as alleged.  I find that she only earned her basic salary without any commission throughout her employment.  I will take her basic salary for September in the sum of $9,000 as her monthly earnings at the time of the accident.

Loss of earning capacity

34. Madam Wong relies on two medical reports: the plastic surgery expert report of Dr Francis Ho Wing Yun dated 16 August 2014 and the psychiatric expert report of Dr Benjamin Lai dated 21 August 2014.  She was examined by Dr Ho on 24 July 2014 and by Dr Lai on 1 August 2014.  By the order of HH Judge Leung dated 24 October 2014, the two expert reports were ordered to be adduced as evidence without calling the makers thereof. 

35. In the plastic surgery expert report, Dr Ho found that there was a faint pale linear scar measuring 9mm x 0.5mm over the chin below the right side of Madam Wong’s lower lip.  There were a few tiny erythematous spotty scars around the right corner of her mouth which were said to be the result of the accident but were indeed indistinguishable from the other erythematous scars resulted naturally from her acne conditions. He opined that her scars were solely caused by the accident.  She has suffered no loss of earning capacity from her cosmetic impairment.  She is physically ready to work. 

36. In the psychiatric expert report, Dr Lai found that Madam Wong developed post-traumatic stress disorder symptoms and depressive symptoms.  He opined that she was likely suffering from mild psychiatric symptoms as a result of the accident.  Further psychiatric treatment and a further course of psychotherapy were recommended.  He assessed that the permanent impairment of the whole person as well as the loss of earning capacity based on her psychiatric conditions as a result of the accident were both estimated to be in the range of 4 to 8%.  He observed that she should have been mentally fit to the jobs not requiring handling of dogs on expiry of the sick leave as given by the public doctors.  Further, she should be mentally capable of returning to the pre-accident job after completion of the recommended treatment. 

37. Both experts gave the view that the sick leave granted from 17 October 2010 to 17 October 2012 was appropriate.

38. Taking into account all the expert reports, medical records, and Madam Wong's evidence, I allow her appeal on the assessment of the loss of earning capacity.  I would adopt 6.5% as the percentage of the loss of earning capacity as a result of the injuries she sustained in the accident.

Compensation

39. I accept Madam Wong has and will continue to have some difficulties and discomfort impairing her work capacity.

40. I find the sick leave granted by the treating doctors from the date of the accident up to 17 October 2012, a total of 732 days which were endorsed by the Employees’ Compensation (Ordinary Assessment) Board and the two experts appropriate.  It is noteworthy that there were 29 days in February 2012. 

41. On the basis of my findings on (i) pre-accident monthly earnings of $9,000; (ii) reasonable period of absence from duty of 732 days; and (iii) permanent loss of earning capacity of 6.5%, I now turn to assess employees’ compensation under the Ordinance.

42. The compensation for Madam Wong’s permanent partial incapacity pursuant to section 9 of the Ordinance is:-

  $9,000 x 96 x 6.5%  $56,160

43. The compensation for Madam Wong’s temporary loss of earning  capacity pursuant to section 10 of the Ordinance is:-

  $9,000 x 732/30 x 4/5  $175,680

44. The medical expenses incurred as a result of the accident pursuant to section 10A of the Ordinance is $5,425.

Summary on quantum

45. In summary, the total compensation awarded is as follows:-

(a) section 9 compensation	$56,160
(b) section 10 compensation	$175,680
(c) section 10A compensation	$5,425
Total:	$237,265

Order

46. Compensation is assessed at the total sum of $237,265.  The 1^st and 2^nd Respondents shall pay such sum with interest thereon at half judgment rate from the date of the accident to the date of assessment herein and thereafter at judgment rate until payment in full.

47. I make an order nisi that the costs of the assessment of compensation with certificate for counsel, including all costs reserved, be paid by the 1^st and 2^nd Respondents, to be taxed if not agreed.  Madam Wong’s own costs to be taxed in accordance with the Legal Aid Regulations.  In the absence of application by Summons within 14 days to vary, the costs order shall become absolute.