MA KAR WAI TERESA v. KAM CHUNG MAN

DCEC245/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 245 OF 2010

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J U D G M E N T

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1.  The Applicant claims under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, against the Respondent.

2.  The Respondent has failed to appear today for assessment of compensation.  In fact, the Respondent has all along been absent in previous direction hearings.  He failed also to file his Answer to the Application and judgment on liability has been entered against him on 24 December 2010. 

3.  Solicitors for the Applicant have filed with the court an affirmation of service to the Respondent for today’s hearing.  I am satisfied that service has been effected on the Respondent and I proceed in the absence of the Respondent.

4.  The Applicant has given evidence in court.  She adopted her witness statement as evidence-in-chief. In her evidence, she hurt her right wrist and shoulder while picking up some heavy beers when working.

5.  The Medical Assessment Board has assessed the Applicant and her permanent loss of earning capacity was assessed to be 3 %.  It is the evidence of the Applicant that her monthly earnings preceding the accident were $9,500 per month.  There is nothing before me to raise any doubt to the Applicant’s evidence in this regard.  

6.  There is however, a medical report dated 21 April 2010 from the Yung Fung Shue Health Centre on the Applicant in which the doctor mentioned about a traffic accident of the Applicant that caused the Applicant’s pain on her wrist and shoulder. There is no mention of the accident allegedly happened on 26 March 2008 whereas the doctor has seen the Applicant on 27 March 2008.   

7.  There is nothing in the Applicant’s witness statement to explain why there was no mention of the alleged accident in the medical report.  Upon questioning by this court, the Applicant said that she had in fact told the doctor about the accident on the previous date but the doctor did not record the same.

8.  The Applicant further explained that she had in fact told her solicitors about this explanation. However, for reasons unknown to her, nothing had been done about this.  Mr Wong, solicitor for the Applicant, confirmed that, he or his colleague had indeed taken instructions from the Applicant on this issue.

9.  The evidence of the Applicant in relation to this issue is unsatisfactory.   However, in my view it appears to be unsatisfactory only because of the inadvertence of the solicitors representing her and the Applicant should not be punished because of the inadvertence committed by her solicitors.  On balance, I accept the explanation of the Applicant and accept her evidence in relation to what happened on the material date.

10.  Under section 9 of the Employees’ Compensation Ordinance, as the Applicant was 27 years old at the time of the accident, the compensation should be:

$9,500 x 96 x 3%  =  HK$27,360

11.  I accept that the total number of sick leave payment under section 10 should be 619 days and the amount is therefore HK$156,813.32.

12.  For section 10A, I accept that the total amount of the medical expenses incurred by the Applicant was HK$3,535.

13.  I give judgment against the Respondent for the amount of in total $187,708.32 with interest thereon at 4 per cent per annum from the date of accident until today and thereafter at 8 per cent per annum until payment.

14.  Costs of the application be to the Applicant.

(Discussions re costs)

15.  The costs of the Applicant is summarily assessed at $61,200.