TSUI WAI HO v. PRIDE GLORY LTD formerly t/a ZITI’S

DCEC1791/2015 & DCPI 1699/2016

(Heard Together)

[2019] HKDC 657

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1791 OF 2015

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AND

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1699 OF 2016

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ASSESSMENT

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1.  On 1 Sept 2013, Mr Tsui Wai Ho (Mr Tsui), the applicant in DCEC 1791/2015 (the EC Application) and the plaintiff in DCPI 1699/2016 (the PI Action), slipped and fell on a wet and slippery staircase at a restaurant in North Point (the Accident) operated by, and suffered personal injuries by accident arising out of and in the course of his employment with, Pride Glory Ltd (Pride Glory) i.e. the respondent in the EC Application and the defendant in the PI Action.

2.  In Aug 2015, Mr Tsui brought the EC Application against Pride Glory seeking compensation under s.9, 10 & 10A of Employees’ Compensation Ordinance, Cap.282 (the Ordinance), for the Accident.

3.  In June 2016, Mr Tsui also began the PI Action against Pride Glory to recover common law damages for his injuries sustained in the Accident.

4.  Pride Glory failed to file any notice of intention to defend in the PI Action. On 4 Jan 2018, interlocutory judgment was entered against it for damages to be assessed.

5.  On 15 June 2018, interlocutory judgment was by order of court also entered in the EC Application against Pride Glory for compensation to be assessed.

6.  By orders of court dated 23 Jan 2019 and 1 Feb 2019, the assessment of damages (AOD) in the PI Action, and the assessment of compensation (AOC) in the EC Application, were set down in turn in the fixture list on the same date of 3 May 2019 and was ordered to be heard together.

7.  Mr Tam Kai Wai of Messrs. B. Mak & Co. (Mr Tam) appeared for Mr Tsui at this hearing of AOD and of AOC before me.

8.  Pride Glory, unrepresented in the EC Application and in the PI Action, did not appear before me. I am, however, satisfied on affidavits[1] that it had been duly notified of this hearing and I therefore proceeded with it in its absence.

9.  Mr Tam called Mr Tsui as his only factual witness. Before I turn to Mr Tsui’s evidence, I start with his injuries and treatments as recorded on documents before me.

Injuries & treatments

10.  According to treatment reports and records of Mr Tsui obtained from public hospitals and clinic, his injuries and treatments are as follows.

11.  In the evening on the day of the Accident, Mr Tsui attended Accident & Emergency Department of Ruttonjee Hospital (RH).Physical examination showed tenderness, bruises and swollen left ankle. X-ray left ankle revealed fracture distal fibula.

12.  On 2 Sept 2013, Mr Tsui was admitted to Department of Orthopedics and Traumatology of Pamela Youde Nethersole Eastern Hospital (PYNEH).On 4 Sept, he received an operation of open reduction and internal fixation of his fracture.Hewas discharged on 7 Sept.After discharge, he was followed-up on 7 occasions at out-patient clinic until 6 Aug 2015.

13.  Mr Tsui was also referred to Physiotherapy Department (PH) of Queen Elizabeth Hospital (QEH) for physiotherapy and occupational therapy. He attended altogether a total of 13 sessions until 6 Dec 2013.

14.  On 24 Jul 2015, Mr Tsui underwent an operation of removal of his left ankle implant at RH. For that, he was hospitalized at RH until 26 Jul 2015.

15.  Treating doctors of Mr Tsui have issued a total of 145 days of sick leaves to him from 2Sept 2013 to 9 Jan 2014, 25 Sept 2014, 24 July 2015 to 6 Aug 2015 for his injuries in the Accident.

16.  On Mr Tsui’s initial assessment at PH of QEH on 21 Oct 2013, mild swelling was noted over his left ankle region. Its range of movement was limited. He could walk unaided and independently. Ice therapy and magnetic therapy were offered to him for symptom relief. Mobilization exercise, strengthening exercise and physical training were prescribed to improve his physical ability.

17.  Progressive strengthening exercise, balance training and physical training were later added. Mr Tsui’s condition improved gradually. By 22 Nov 2013, he reported 70% to 80% overall improvement with subsided left ankle pain and subjective walking tolerance of 45 minutes. No obvious acute inflammatory sign was noted at left ankle. Range of movement had improved. He could manage stairs in alternate steps and independently. He could squat down fully. He was independent in daily activities. On 6 Dec 2013, subjective and objective examinations revealed similar findings as before and he defaulted session thereafter.

18.  According to the same reports and records, the left ankle fracture sustained by Mr Tsui united at about 12 weeks after operation and he gradually resumed normal walking one year after operation.His wound and fracture had healed well and he complained of minimal pain towards the end of his follow-ups. The range of movement was satisfactory. When he was last seen on 6 Aug 2015, the wound was well. There was no limitation to daily activities and he made a full recovery 2 years after the Accident.

Assessment under the Ordinance

19.  On 9 Oct 2014, Mr Tsui was assessed for purpose of review by the Employees’ Compensation (Ordinary Assessment) Board. On 23 Oct 2014, a Certificate of Review of Assessment (Form 9) was issued certifying him suffering from “left ankle fracture resulting in pain, weakness and stiffness”. His period of absence from duty necessary as a result of his injuries was certified to be from 2 Sept 2013 to 9 Jan 2014 and 25 Sept 2014. His loss of earning capacity (LOEC) permanently so caused was assessed at 3%.

Mr Tsui’s evidence

20.  Mr Tsui gave evidence that he was borned in Feb 1989. He studied up to Form 5 and worked in a social service organization (the NGO) as a clerk earning $12,000 odd/month before he joined Pride Glory. He was responsible for doing clerical duties, attending to users of outreach center, and maintaining supplies kept at camp site, of the NGO. He was not required to perform any strenuous exertion in this job.

21.  Mr Tsui was admitted to a one-year full-time Project Yijin course to prepare for civil service vacancies (the Yijin Course) scheduled to start from Sept 2013 and he therefore resigned from the NGO in July 2013. He told me he planned to secure a part-time job in the evening and weekends to make some earnings while studying the Yijin Course in the daytime and weekdays.

22.  Starting from 10 July 2013, Mr Tsui therefore joined and worked for Pride Glory as a part-time delivery worker at its North Point restaurant delivering pizza etc. on motorcycle in the evening and weekends. He so worked until he met the Accident on 1 Sept 2013.

23.  Mr Tsui said he was paid an hourly rate of $45. There was no written employment contract. He was paid in cash weekly and no receipt was signed by him. Before the Accident, he said his average monthly pay was $4,365 i.e. $45 x 97 hours. He said he worked 4 hours per working day and about 4 to 5 days per week, depending on the business of the restaurant.

24.  Mr Tsui gave evidence of his injuries and treatments in like details to para 11 to 15 above. In the box, he also gave details of the type of transports he took to and from PYNEH, RH and QEH for treatments and the estimated travel expenses so incurred by him.

25.  After removal of implant, Mr Tsui said movement of his left leg had overall resumed normal. But, from time to time until today, he still feels mild pain in left leg, especially when there is a change of weather.

26.  After, and due to, the Accident, Mr Tsui said he could not resume, and had never resumed, his job with Pride Glory. After discharge, he was put on crutches and could not ride motorcycle. He had to rest at home for about 1 month and he did not start studying the Yijin Course until Oct 2013.

27.  By Dec 2013/Jan 2014, the restaurant, said Mr Tsui, had also been closed down by Pride Glory, which company was later deregistered in June 2015. The Court of First Instance restored it on application of his solicitors in Oct 2017.

28.  In Aug 2014, Pride Glory, said Mr Tsui, was convicted of failing to take out insurance as required by s.40 of the Ordinance. But a director surnamed Szeto of Pride Glory had paid him a total of $27,470.40 by way of periodic payments.

29.  Returning to his further studies, Mr Tsui said he managed to obtain government subsidy while studying the Yijin Course and did not find another part-time job than that of Pride Glory. He finished the Yijin Course in Aug 2014. He thereafter enrolled in a 2-year full-time higher diploma course of accounting in Sept 2014 and completed it in Aug 2016 with government subsidy.

30.  He thereafter searched for full-time jobs and became a postman in Oct 2016, earning $14,000 odd/month. He worked for about 9 months until July 2017 as follows. He worked for 2 weeks in post office counters. He worked for about another 2 months dealing with postal packages in a warehouse. For as long as 6 months, he worked outdoor delivering mails to residents of Wah Fu Estate. He had to walk upslope and downslope, and downstairs carrying postal bags containing mails, as many as 6 days a week. He said he found his injured left ankle painful after work that he had to consult private practitioner. For that reason, he later decided to change job.

31.  In July 2017, he enrolled in government public recruitment and applied successfully as an assistant clerical officer (ACO). He has worked as an ACO on contract until today, earning now $15,735/month. His probation period is 3 years, with review at half-yearly intervals. He works indoor at the Death Registry of the Immigration Department, dealing with paper works, such as applications for death certificates. No strenuous work is required from him.

Assessment of evidence

Medical & other documentary evidence

32.  I give full weight to the contents of the medical reports, records and other documents before me.

Mr Tsui’s evidence

33.  Mr Tsui’s evidence of injuries and treatments is, I observe, supported by contents of the medical documents above and I accept them without hesitation.

34.  Though otherwise uncorroborated, Mr Tsui’s evidence of his being paid an hourly rate of $45, working 4 hours per day and about 4 to 5 days per week, and of having an average monthly earnings of $4,365 is, I observe, supported by entries in Form 2, and its data correction form, filed by Pride Glory with Labour Department in Sept & Oct 2013. The figure of $4,365 was put down as his earnings for the month immediately preceding the date of the Accident. For this reason, I am also prepared to accept these evidence of Mr Tsui.

35.  What troubles this court and what I find unsatisfactory is that there is no reference at all in Mr Tsui’s witness statement signed in Aug 2018 of his alleged further studies and alleged employments after he finished the Yijin Course in Aug 2014 and, unlike the case of his job with the NGO, no document evidencing these alleged further studies and alleged employments is produced before me.

36.  Legal practitioners should, I think, not take it for granted that the unopposed evidence of a plaintiff in an assessment of damages or of an applicant in an assessment of compensation will be accepted in full at face value by court in every case.

37.  And, by O.38 r.2A(7) & (8), Rules of District Court[2], the evidence of a witness will be confined to the contents of the witness statement unless the court considers that there is good reason not to do so and give leave under para (7)(b), whose sub-paragraph (ii) provides only for “new matters which have arisen since the witness statement was served on the other party (italics supplied)”.

38.  Notwithstanding the said unsatisfactory feature of Mr Tsui’s evidence in para 35 above, I find nothing inherently improbable about these aspects of his evidence. This court has also carefully observed Mr Tsui’s demeanor in the box. He impressed me as an honest and frank witness. I am also prepared to accept the rest of his evidence in this hearing despite the lack of documentary support.

Findings of facts

39.  Unless otherwise stated, I find the facts as per para 11 to 31 above. In particular, I find that Mr Tsui has made a satisfactory recovery from his left ankle fracture latest 2 years after the Accident. Any residual pain, if any, suffered by him thereafter and today can only, I think, be mild.

EC Application

Compensation for permanent partial incapacity

40.  I adopt $4,365 as the earnings of Mr Tsui at the time of the Accident pursuant to s.11(1)(a) of the Ordinance.

41.  Mr Tsui was 24 i.e. under 40 at the time of the Accident.

42.  There is no appeal against the assessment of LOEC in Form 9 by any party. As such, it is final and binding on this court: Ng Ming Cheong v MTR [1997] HKLRD 1231, 1236-7.

43.  Hence, the amount of compensation payable to Mr Tsui under s.9 of the Ordinance is $12,571.20 i.e. $4,365 x 96 months x 3%.

Compensation for temporary incapacity

44.  By s.10(2) of the Ordinance, a period of absence from duty certified to be necessary by a registered medical practitioner, an Ordinary Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.

45.  Notwithstanding Form 9 certifies only 128 days of absence from duty, further sick leave was thereafter granted by treating doctors of Mr Tsui in 2015 to make it a total of 145 days. By reason of s.10(2) stated above, I therefore also allow a total period of 145 days of total temporary incapacity in this case.

46.  Under s.10 of the Ordinance, the compensation payable to Mr Tsui is $16,878 i.e. $4,365 x 4/5 x 145/30 days.

Payment of medical expenses

47.  Mr Tam has helpfully prepared for this court a schedule of medical expenses and the claimed amounts are, I observe, supported by documents in one form or another.

48.  I allow the full sum of $2,190 claimed by Mr Tam under s.10A of the Ordinance.

Summary of compensation

49.  Giving credit for periodic payments in the total sum of $27,470.40 already paid by Pride Glory, the total amount of compensation payable to Mr Tsui in the EC Application is therefore $4,168.80 i.e. $12,571.20 (s.9) + $16,878 (s.10) + $2,190 (s.10A) - $27,470.40.

PI Action

Pain, suffering & loss of amenities (PSLA)

50.  Mr Tsui seeks a PSLA award of $250,000 in Revised Statement of Damages (RSOD).

51.  Mr Tam refers this court to the following 4 PSLA comparable cases, namely: -

(1) Chan Mok Yau v. 黃吉利 and Another [2018] HKCFI 1084, 25 May 2018;

(2) Lam Kam Fai v. Yau Shing Scaffolding Co Ltd, unreported, HCPI 894/2011, 31 Oct 2013;

(3) Leung See Ning Clara v. Shun Tak Property Management Ltd, unreported, DCPI 625/2003, 24 Jan 2005; and

(4) Kwong Wan Kau v. Yuen Wing Hong, unreported, HCPI 142/2002, 1 Sept 2006.

52.  For Chan Mok Yau, supra, this court notes that the claimant was older than Mr Tsui. He was 54 at accident. He only received conservative treatment by way of cast for his right ankle fracture. But he required as many as 424 days of sick leave. Almost 2 years after accident, he still had moderately reduced range of movement as examined by an orthopaedic specialist. A PSLA award of $250,000 was then awarded in May 2018.

53.  In Lam Kam Fai, supra, the claimant was also 24 when he got his left ankle fracture. He also had surgery, removal of implant, physiotherapy as Mr Tsui did. His fracture also healed with full range of movement as was the case with Mr Tsui. But his bleak portrait of conditions was not accepted by the court, who had benefit of convert video film. The court also accepted expert orthopaedic evidence that he suffered from a pre-existing old injury to left ankle and therefore made a discount of 10% to $325,000 to arrive at a PSLA award of $292,500 in Oct 2013.

54.  The claimant in Leung See Ning Clara, supra, was a law student residing in a university hall at accident. She slipped and fell, and got left ankle fracture. Open reduction and internal fixation was performed. She was discharged 11 days after accident. X-ray showed good alignment of fractured site. She had only occasional mild pain on follow-up about 3 months after accident. She had her implant removed by another operation 2.5 years after accident. She had her study deferred for one year and, after graduation, she worked in Department of Justice. A total PSLA award of $230,000 was made in Jan 2005. $30,000 of this sum was compensation for an 8.5cm-long scar at her ankle.

55.  In Kwong Wan Kau, supra, the claimant was 41 at accident. He got right ankle fracture. Operation was performed with metal implants. He was hospitalized for 11 days. He received physiotherapy for more than one year and occupational therapy for about 14 months. He had another operation to remove implants 6 months after accident. He was given sick leave for more than 3 years. The court gave a PSLA award of $350,000 in Sept 2006.

56.  Considering the longer length of sick leave, I think the circumstances of Kwong Wan Kau, supra, are more serious than those of Mr Tsui. The circumstances of the claimant in Leung See Ning Clara, supra, are, I think, similar to those of Mr Tsui. But Mr Tsui had no complaint of cosmetic disability. That case was decided in 2005 and inflation since then must also be considered. Mr Tsui had no pre-existing old injury to his ankle as was the case of the claimant in Lam Kam Fai, supra. The award in Chan Mok Yau, supra, was closest in time and no inflation adjustment seems to be called for.

57.  All things considered, I allow the sum of $250,000 sought after considering the above comparable cases and the circumstances of Mr Tsui as I find above.

Pre-trial loss of earnings

58.  On my findings above, I agree with Mr Tam and award $22,152.38 to compensate Mr Tsui for his loss of earnings and employers’ mandatory provident fund contributions during his entire sick leave period i.e. $4,365 x 145/30 days x 1.05. I am satisfied that Mr Tsui would, but for the Accident, continue working for Pride Glory while furthering his studies.

Loss of earning capacity

59.  Mr Tsui seeks $150,000 for this head in RSOD. Mr Tam helpfully reminded this court what this award is for by referring to Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, 331J-312F.

60.  Mr Tam sought to derive support from an award of $100,000 made in this head in Yip Chung Man v SJ, unreported, HCPI 485/2001, 13 Apr 2010, to a 35-year-old police constable who had been confined to indoor duties after having right ankle fracture at work. The court held that the claimant would be disadvantaged in the labour market after he retires from the police force at 55.

61.  In his opening, Mr Tam also pointed to an award of $99,000 in this head given to a 56-year-old general laborer in plastic recycling business in Chan Mok Yau, supra.

62.  In line with the authorities, I ask myself the first-stage question: is there a substantial or real risk that Mr Tsui will lose his present job at some time before the estimated end of his working life by reason of his injuries in the Accident?

63.  Mr Tsui gave no evidence of the retirement age of ACO. But he is still young and has a long working life, irrespective of his exact retirement age in future.

64.  He answered this court that his injuries in the Accident do not adversely affect his indoor duties at Death Registry in any way. He has by now worked there for close to 2 years. He gave no evidence of any adverse comments on his performance from his superiors on, say, half-yearly reviews conducted in the past.

65.  He gave no evidence either of any plan to move him to work in other government departments undertaking outdoor duties or strenuous works.

66.  But Mr Tsui remains today on probation and he is on contract, albeit with the government. He is not as secured as a pensionable civil servant or one on contract that has passed and completed probation. His current contract will expire in due course, though he said in the box he plans to continue working as an ACO if it is possible.

67.  Mr Tsui has no background of working as a blue-collar worker like that of the old claimant in Chan Mok Yau, supra, who has low education and who was rendered by accident unable to carry out work requiring prolonged walking and standing.

68.  Except for his 2 short jobs as part-time delivery worker with Pride Glory and as a postman, Mr Tsui’s previous and current working experiences as a clerk with the NGO and as an ACO at Death Registry are mainly indoor undertaking no strenuous exertion.

69.  He suffered left ankle injuries in the Accident. He made a full recovery with satisfactory range of movement. He has now only mild pain in left leg. He gave no evidence that he can no longer ride motorcycle after recovery.

70.  But his 6-month-long working experience as a postman in Wah Fu Estate at para 30 above does suggest to me that he suffers handicap in the open market in jobs requiring prolonged walking and/or strenuous exertion.

71.  And the highest educational qualification that Mr Tsui has achieved by now is higher diploma in accounting. He is no university degree holder. He apparently aspired to work as a civil servant, but he is not yet a secured civil servant.

72.  All things considered, I think Mr Tsui stands on balance to suffer a real risk that he has to return to the labour market before the end of his long working life and he is disadvantaged in the open market by reason of his injuries in the Accident.

73.  However, on the second stage of the quantification of the present value of such future risk, I disagree with Mr Tam.

74.  Considering the same matters in para 63 to 71 above in this second stage, I find such risk relatively small. I am only prepared to make an award of $50,000 here.

Special damages

75.  A sum of $1,850 is sought in RSOD for medical expenses. The documents before me prove more than that and I allow this claimed sum in full. I also allow a sum of $250 paid by Mr Tsui for purchase of a pair of crutches supported by receipt before me.

76.  There is no evidence, be it oral or documentary, proving the claim of tonic food in RSOD and this claim fails.

77.  Mr Tsui claims $2,000 in RSOD by way of travel expenses to seek medical treatments. Considering his detailed evidence in this respect, I think $1,000 is more than sufficient to cover his outlay and I award this sum.

78.  I therefore allow special damages in the total sum of $3,100.

Summary of damages

79.  After giving credit for the total amount of compensation of $4,168.80 assessed by me at para 49 above in the AOC in the EC Application, the total amount of damages payable to Mr Tsui in the PI Action is $321,083.58 i.e. $250,000 + $22,152.38 + $50,000 + $3,100 - $4,168.80.

Disposition

80.  Accordingly, I enter judgment in Mr Tsui’s favour against Pride Glory in the EC Application in the sum of $4,168.80, together with interest at half judgment rate from 1 Sept 2013 to judgment and thereafter at judgment rate until payment.

81.  I also enter judgment in Mr Tsui’s favour against Pride Glory in the PI Action in the sum of $321,083.58, together with interest on PSLA award in the sum of $250,000 at 2% p.a. from the service of writ to judgment and also with interest on the total sum of $25,252.38 for pre-trial loss of earnings and special damages at half judgment rate from 1 Sept 2013 to judgment, and thereafter at judgment rate until payment.

Costs

82.  I make an order nisi in the EC Application that the costs of AOC in the EC Application, including all reserved costs and the costs of this hearing, shall be paid by Pride Glory to Mr Tsui, at such amount to be taxed if not agreed.

83.  I also make an order nisi in the PI Action that the costs of AOD in the PI Action, including all reserved costs and the costs of this hearing, shall be paid by Pride Glory to Mr Tsui, at such amount to be taxed if not agreed.

84.  The said 2 orders nisi as to costs in para 82 & 83 above shall become absolute and effective if none applies in writing to vary within 14 days from the date of this Assessment.

85.  Finally, I thank Mr Tam for his assistance at this hearing.