TSE TSZ CHONG v. LAW SZE MAN

DCEC 619/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 619 OF 2014

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DECISION

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Background

1.  This is an application of the applicant by way of a summons dated 7 July 2014 for an interim payment in a sum of $80,000 under Order 29 rule 10 and 11of the Rules of the District Court (“RDC”).

2.  The applicant was employed by the respondent as a post-natal care worker.  She sustained injury whilst she was working for the respondent.

3.  The respondent has admitted liability.  Interlocutory judgment on liability was entered on 23 June 2014 with compensation to be assessed.

The Law

4.  Order 29 rule 11 (1) (a) of the RDC is relevant to the present application.  It  provides if, on the hearing of an application under rule 10 in an action for damages, the court is satisfied that the respondent against whom the order is sought has admitted liability for the plaintiff’s 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.

5.  In this case, interlocutory judgment (with compensation to be assessed) has already been entered.  There is no question of any contributory negligence, set-off or cross claim.

6.  The respondent is insured for the applicant’s present claim. Therefore Order 29 rule 11(2)(a) is satisfied.

7.  The object of an interim payment is generally to alleviate hardship during the period between commencement of the action and trial.  It is a cardinal principle that the court must be satisfied on the balance of probabilities that if the claim were to go to trial then, on the material before the judge at the time of the application for interim payment, the plaittiff would succeed in his claim and obtain a substantial amount of damages: see Hong Kong Civil Procedure 2014 at §29/11/1.

The accident

8.  On 14 March 2013 at about 1:30pm, the applicant was working at the respondent’s home.  She hit her head on the glass door while she was walking to the kitchen.  As a result, she sustained injury with tenderness on her forehead.  She applied some ointment and resumed working.  She continued to work for the respondent for another four days.

9.  The applicant sought medical treatment on 19 March 2013, ie 5 days after the accident.  She had attended the Accident and Emergency Department (“AED”) of Kwong Wah Hospital (“KWH”) on four occasions.  In gist, the doctors of the AED had made findings that the applicant was fully conscious with no focal neurological deficit on admission.  She claimed that there was tenderness over the forehead.  Examination revealed that her vital signs were normal.  X-rays of skull revealed no fracture.  CT scanning of her brain done revealed no abnormality.  There was no focal neurological deficit.

10.  With complaints of persistent headache, the applicant was referred to Neurosurgery Department (“ND”) of KWH.  She was diagnosed to suffer from post-concussion syndrome on 24 December 2013.

11.  The applicant was given sick leave for a total of 439 days and it expired on 22 July 2014.

Discussion

12.  The applicant has not yet been assessed by the Medical Assessment Board of Labour Department. She was born on 5 November 1955 and was 57 years old at the time of the accident.  Her monthly earnings were $14,000.  She had incurred medical expenses of $6,500.  The respondent did not pay any periodic payment nor reimburse the applicant any medical expenses after the incident. 

13.  Based on the above, the applicant has made calculation on the compensations under sections 10 and 10A of Employee’ Compensation Ordinance (“ECO”).  It amounts to $170,393 ($14,000 x 439/30 x 4/5 + $6,500).  This figure does not include section 9 compensation.

14.  The applicant claimed that she has been suffering from financial hardship. Her husband has retired and unemployed.  She has no income for over 17 months.  She relies on her two daughters for household expenses.  She borrowed money from relatives to pay for her medical expenses. Now she owed them about $10,000.  Therefore she is seeking for interim payment of $80,000. It is submittedthis sum is appropriate which would not exceed a reasonable portion of compensation to be recovered in the proceedings.

15.  In opposing the application for interim payment, the respondent submitted that the applicant’s complaints are subjective with no support of any objective medical findings.  On the available medical evidence aforesaid, the necessary sick leave and the loss of earning capacity, as submitted by the respondent, should not exceed 28 days and 1% respectively.  In other words, the total employees’ compensation payable to the applicant should be less than HK$25,000 ($14,000 x 1% x 48 + 14000 x 28/30 days x 4/5 + $6,500 = $23,673).

16.  The respondent submitted that the applicant’s claim for $80,000 falls outside a reasonable proportion of compensation likely to be recovered. It is unlikely that she can repay the overpaid amount to the respondent if the compensation to be awarded falls short of the interim payment. The respondent suggests a sum of $20,000.

17.  In deciding the amount of interim payment to order, the court will estimate 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 is the function of a future court.  Once the court has made that estimate, it must award a reasonable proportion of that estimate: see Hong Kong Civil Procedure at §29/11/5.

18.  Apart from the subjective complaints of dizziness and headache, there is no objective medical evidence in support of the applicant’s extent of severity of her conditions.  This is a matter which the trial judge needs to decide if the symptoms she complained of are reliable and genuine.

19.  In deciding when the applicant should return to work, the court is not bound by the sick leave certificates.  In Tam Fu Yip Fip v Sincere Engineering [2008] HKLRD, per Le Pichon JA at 215-216:-

“Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court. As Rogers VP observed in Choy Wai Chung v Chun Wo Construction & Engineering Company Ltd, unreported, CACV 172/2004, 15 July 2005 at § 9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

20.  The applicant continued to work for 4 more days after the accident.  It shows that the hitting should be minor as she did not consult any doctor for the several days until 19 March 2013.

21.  On her last visit to the AED of KWH on 16 April, 2013, the doctor opined that she was well upon examination.

22.  As the extent of the injury and the length of the sick leave are in serious dispute, I find that there is a substantial risk of overpayment to the applicant if $80,000 is given to the applicant at this stage.

23.  From the applicant’s bank passbook, it shows that monies were deposited into her bank account constantly.  That leaves the court with doubts if the applicant has been suffering financial hardship as she alleged in her affirmation.

24.  In the light of the evidence presented before the court at this stage, I have reservation if the applicant will obtain a substantial amount of damages at the hearing for assessment of compensation.  It is understandable why the respondent did not make any periodic payment nor reimburse the applicant any medical expenses after the accident.  Having regards to all the circumstances, the sum to be granted must be conservative.  I would exercise my discretion to allow the applicant an interim payment.  I find $20,000 is an appropriate sum.

Conclusion

25.  The respondent shall pay the applicant by way of interim payment the sum of $20,000 within 21 days from today.

Costs

26.  Costs will usually follow the event.  However, the respondent made an offer to pay the applicant the sum of $20,000 as interim payment in a letter on 11 June 2014.  This offer was rejected by the applicant on 17 June 2014.  She took out the present summons supported with her affirmation on 7 July 2014.  In the circumstances, I am not satisfied that this hearing is necessary.  Therefore, I make an order nisi that the costs of this application be to the respondent, to be taxed if not agreed.  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.