Chiu Yuk-ming v. Sun Plaza Ltd. t/a Empire Barbecue Restaurant

DCEC363/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 363 OF 2001

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J U D G M E N T

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1. In this matter the applicant claims compensation under various sections of the Employees Compensation Ordinance. She was employed by the respondents who operated the Empire Barbecue Restaurant in Cameron Road and the matter which gives rise to the claim took place in the afternoon of 21 March 2000, the restaurant having started its operations on 1 March.

2. What happened was that a colleague of the applicant, a Miss Lee, was in the process of preparing a small altar which was located in the restaurant and what she did was to climb up to reach it in order to prepare for some sort of religious ceremony. As she was standing on a stool, Miss Lee then lost her balance and fell to the ground and as she tried to break her fall, she stretched out and put her hand on a nearby glass table top measuring something between 2 and 3 feet square. In doing so, she caused the table to turn over and this in fact resulted in the glass breaking into a number of pieces. The applicant was standing close by when this happened and according to her she then decided to pick up two of the larger fragments of glass measuring something between 1 and 2 feet in length and about 6 inches wide and what she says is that she then picked each one, of course in separate hands, between the thumb and index and second finger of each hand. She then carried them to safety outside the restaurant. She said she did this in order to avoid the glass perhaps tipping over and breaking into even more pieces which might have caused someone serious injury.

3. The respondents who today are represented by Mr Kaiji Tamura, who is one of their directors, were originally represented by solicitors but Mr Tamura has by resolution of the board appeared today to conduct the case on their behalf. He was, in fact, present in the restaurant at the time. Having seen what happened, he immediately went towards Miss Lee to ensure that she was all right and apparently she was. Having seen that the floor was showered with glass as a result of the table top having broken, Mr Tamura then shouted a general instruction to everybody who was able to hear him that no one should pick up anything and leave it alone. He had in mind that in due course when everyone had regained their composure that the glass should be swept away safely and he certainly had not expected or anticipated that the applicant would pick up these two large fragments of glass as she did.

4. Returning to the applicant's account of this, her case is that she did not hear Mr Tamura shout any instruction. My view of this evidence is that I find as a fact that Mr Tamura did give the directive that he has suggested. No doubt he had everyone's best interests at heart wanting to make sure that no one was injured and that no one would be injured by trying to pick up glass. But I am also satisfied that in the heat of the moment the applicant did not hear him shout this instruction. She was anxious no doubt for her colleague. There was confusion, there had been noise as the glass fell to the floor and she did, for her part at all events, what she thought was best in all the circumstances.

5. Now she says that when she returned into the restaurant having taken the glass outside, she saw for the first time that her right thumb was bleeding. That was the first occasion that she realised that something was wrong and that she had been injured. On the pleadings at all events, there is some dispute as to the circumstances in which this came about and there has been argument as to whether it could have been caused before the glass fell to the ground and whether perhaps she was injured by a fragment of flying glass and did not realise that until after she had removed the fragments in the way that she described, or whether in fact this happened in the course of transporting the two large fragments out of the restaurant. And indeed, the applicant's solicitors have troubled Dr Lau, their medical expert, to try and express a view on it and what he says is that it is rather unlikely that someone would be injured on the back of the thumb if one was picking up glass in the way that this lady has suggested.

6. Having heard all this evidence, I am not able to say to the required degree, precisely when her thumb was cut. All that I can say, and I have no doubt about this, is that this must have happened in the course of those short moments when Miss Lee in breaking her fall put her hands on the table, the table then tipped over, the glass broke and it was sometime from that moment until the applicant eventually deposited the glass outside the restaurant that this injury occurred, and that is all that I feel able to say on the evidence as it has been presented to me. I will return to that in a moment.

7. So that is how this matter comes about. What the applicant is required to show is that she was injured by accident in the course of her employment and that the injury arose out of this employment. It appeared on the pleadings that the respondents were saying that whatever she did was contrary to a specific instruction from her superior, Mr Tamura. Now that I have heard the evidence I do not think the matter could properly be described as a specific instruction or order by him. He sounded a general alarm that everyone should be careful and should not touch anything. She, as I have already indicated, did not hear him give that instruction and she did what she thought was best in all the circumstances.

8. I have absolutely no doubt that this injury occurred in the course of her employment. She was employed as a waitress. This accident, and it is an accident in the classic sense of the word, occurred in the course of the employment. She was injured as a result of the accident. This is not a case of her acting contrary to direct instructions, and so I am satisfied that there must be judgment on liability in favour of the applicant in those circumstances.

9. I then come to the second part of this matter which relates to the applicant's appeal against the assessment by the Employees Compensation Ordinary Assessment Board. The assessment was made on 25 July last year and it appears at page 71 of the bundle. The loss of earning capacity permanently caused by the injury was given at 3 per cent.

10. Now before I deal with this in more detail, it is convenient to consider the nature of the applicant's injury. This has been extremely well reported on starting at page 58 where there is a report from the Hospital Authority. In fact, there is another report at page 59, another at page 60 and finally one from the occupational therapy department at page 61. What then follows is a very helpful report from Dr Lau Hoi-kuen at pages 60 to 67 of the court bundle, together with some attachments which follow thereafter.

11. There is no doubt that this was a very nasty cut of the thumb and it severed the tendon. The result was that the thumb was left in a position where the applicant could not extend it into an upright position and of course it needed surgery. The thumb was dealt with appropriately by re-attaching the two parts of the severed tendon together by means of sutures. There was then the usual healing process, if I may express it in that way. There was also physiotherapy and so forth.

12. The applicant was given sick leave and during her sick leave she was required to go back to her employer's restaurant in order to receive her sick pay. They apparently were most anxious to have her services restored to them and in fact she started work before her sick leave expired in May. In fact, she had certified sick leave until June.

13. The matter was first looked at by the assessment board on 8 September which is when they issued their original certificate of assessment and they considered on that occasion that the loss of earning capacity permanently caused by the injury was 13 per cent which of course is an extremely high percentage when one considers that it was a bad cut to the thumb which had been restored surgically and not surprisingly, of course, there was then an appeal by the respondents. Even the applicant's solicitor, Mr Kwok, accepts that of course there was a strong case on appeal. The injury which appears at page 70 was described as an injury of the right thumb resulting in pain, numbness and scarring of the right hand and a weakness of the grip of the right hand.

14. The certificate of review has described the injury of the right thumb resulting in pain, numbness, scarring and stiffness. That review, of course, took place some 101/2 months after the original assessment by which time of course the applicant's condition had improved considerably and I entirely accept Mr Kwok's concession that it is not surprising that the appeal had succeeded so substantially. But Mr Kwok submits on behalf of the applicant that that is really going too far and he supports his appeal to this court with the evidence of Dr Lau to the effect that in his opinion the appropriate percentage is one of 6 per cent. I have had regard to all of the medical evidence in this case.

15. As I observed in the course of the argument, this lady of course is a waitress and I am not really concerned with someone - I do not mean this in any pejorative sense - who might have been someone in an occupation which required a lot of finer movements such as a musician or anything of that sort. She has returned to her pre-accident employment with another employer, at another restaurant, these respondents having terminated her in June of 2000.

16. The assessment board are very experienced in looking at all of these matters. They have given full weight to her condition and although Mr Kwok draws attention to the fact that the appeal certificate, which is at page 70, makes no mention of the weakness of the grip, I have absolutely no doubt that in considering all of this matter they had that very much in mind. They had the medical evidence before them and in all the circumstances I can see no proper grounds for disturbing their finding of 3 per cent. This is a case of a lady who has now returned to her pre-accident employment effectively earning the sort of wage that she was earning pre-accident. There is residual weakness, stiffness and numbness but I am not exercising a compensatory jurisdiction in the way one might in an action at common law seeking damages for pain, suffering and loss of amenity.

17. I have got to look at all the circumstances of the case and arrive at a broad conclusion based on those circumstances, and where quite clearly she is able to go back to her pre-accident work the loss of permanent earning capacity must be modest as the Employees Compensation Ordinary Assessment Board found in July last year.

18. So for all of these reasons the appeal must stand dismissed and from that I turn to the assessment of compensation.

19. Firstly, the claim under section 9 has been very helpfully calculated by Mr Kwok in his written submission. Under section 9 the pre-accident earnings are correctly set out at $7,500 multiplied by 72 months - that is based on her age at the time of the accident, she was 40 - multiplied by 3 per cent and that produces an amount of $16,200. Then there is the claim under section 10. Again $7,500 being her earnings multiplied by 45 days which is the time actually spent away from work divided by 30 and multiplied by four-fifths. That produces $9,000. There is a claim for medical expenses under section 10A. I accept her evidence as to that, $1,346. There have been advance payments by the respondents to her, and I accept her evidence about that as well, in the sum of $8,600 so that has to come off the award.

20. So the amount is as follows: $16,200 under section 9, $9,000 under section 10, $1,346 under section 10A less the payments already made at $8,600. Someone will calculate that for me in a moment and to that there must be interest from the date of the accident until judgment at half the judgment rate and thereafter at the judgment rate until payment. So Mr Kwok, that is my award and you will have to do the appropriate arithmetic on that if you would, please, and subject to any payment in or anything of that sort, inevitably there must be costs to the applicant on a party and party basis to be taxed if not agreed, together with legal aid taxation.