SINGH NAVROOP v. HOSPITALITY & ENTERTAINMENT (INTERNATIONAL) LTD

DCEC 20/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 20 OF 2013

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JUDGMENT
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Introduction

1. This is an application by the applicant (“Mr Singh”) under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance’) in relation to an accident that took place on 1 December 2011.  The applicant also appeals against the certificate of assessment (“Form 7”) issued by the Employees’ Compensation (Ordinary Assessment) Board on 4 October 2012.

2. At the beginning of the hearing, I tried to clarify the respondent’s position in relation to the application.  Mr Saif, managing director of the respondent, informed the court that the respondent would not dispute that Mr Singh was an employee of the respondent at the time of the accident.  Mr Saif did not witness the accident alleged by Mr Singh but the respondent would not dispute the accident took place in the course of employment.  Mr Saif said that Mr Singh was doing something that was not supposed to be done by him.  The respondent accepts that Mr Singh suffered injuries as a result of the accident but the amount of compensation is in dispute.

3. As the respondent is not legally represented, I need to decide whether Mr Singh is entitled to employees’ compensation under the Ordinance and if so, the amount thereof, after hearing the evidence of Mr Singh and Mr Saif of the respondent.

The applicant’s case

4. Mr Singh testified in court.  He confirmed and adopted his witness statement filed on 3 December 2013.

5. According to Mr Singh, he was born on 1 April 1970 in India and was aged 41 at the time of the accident on 1 December 2011.  He began working at Portofino Restaurant (“the Restaurant”) on 19 May 2011 as a chef.  The Restaurant was run by the respondent and situated at 27A, Ground Floor, Lung Mei Village, Ting Kok Road, Tai Po, New Territories, Hong Kong.  He had signed a contract with the respondent.

6. His job duties included the preparation of dishes as instructed by his employer.  He was the only chef working in the Restaurant and there was no helper provided to him.  His working hours were from 12:00 noon to 10:00 pm.  When he started working for the respondent, the monthly salary was HK$13,000.  It was raised to HK$14,000 after probation. This was also the salary figure at the time of the accident.

7. Mr Singh described the accident on 1 December 2011 as follows.  That day he was working in the Restaurant.  The 1^st floor of the restaurant had been converted to a storage room while the 2^nd floor was occupied by Mr Saif.  Around 1:00 pm, he was coming down from the 1^st floor carrying a bag of flour on his shoulder by using a staircase.  The bag of flour weighted about 25 kg.  He needed to bring that to the kitchen for making pizzas.  On the staircase, there were children’s stuffs like bicycle and toys.  As Mr Singh was descending the staircase, his right foot hit an object.  He lost balance and fell all the way to the bottom of the staircase.  He sat on the floor.  He still had the bag of flour on his shoulder when he landed at the bottom of the staircase but it rolled over onto the ground.

8. After a few seconds, Mr Saif came to his assistance.  He gave Mr Singh some water to drink, called a taxi and took Mr Singh to hospital.

9. Mr Singh attended the Accident & Emergency Department of Alice Ho Miu Ling Nethersole Hospital (“AHMLNH”) on the same day for treatment.  X-ray of the back was taken which revealed loss of lumbar lordosis.  He was admitted to the Orthopaedics Department for further management.

10. He was hospitalized at the Orthopaedics Department from 1 December 2011 to 5 December 2011.  He was then referred to the United Christian Hospital (“UCH”) for physiotherapy.

11. In May 2012, Mr Singh was referred to receive occupational therapy at UCH.

12. He was followed up at the Orthopaedics Department of AHMLNH. 

13. On 20 September 2012, he was assessed by the Employees’ Compensation (Ordinary Assessment) Board and was found to be suffering from 2% loss of earning capacity.  He regards this as being too low and is appealing to this court against the assessment.

14. Currently, he still experiences low back pain on and off.  The pain is similar to the pain caused by needle pin.  This will increase when he stands for over one hour or when he bends forward to pick something.  There is numbness and weakness over his left leg all the time. He requires analgesics to relieve his back pain occasionally.

15. He can walk for 2 to 3 hours but with pain.  He can climb up and down stairs but needs to hold onto the handrail.  He cannot carry weight of more than 30 lbs.  The pain will become worse when the weather is cold and wet.

The respondent’s case

16. Mr Saif testified on behalf of the respondent.  He confirmed and adopted his witness statement dated 23 December 2013.  He is the managing director of the respondent and head chef at the Restaurant.

17. According to Mr Saif, Mr Singh started working at the Restaurant on 19 May 2011 with a monthly salary of HK$13,000.  This was increased to HK$14,000 in July 2011 because of Mr Singh’s complaint that he was spending too much on transportation.  The increase of HK$1,000 was for his transportation.

18. In relation to the accident on 1 December 2011, Mr Saif said that he was working in the kitchen of the Restaurant.  Around 12:00 noon.  Mr Singh came back and started working with him.  Around 12:45 pm, Mr Saif noted that Mr Singh was not in the kitchen and thought that he probably had gone to the washroom.  At about 1 pm Mr Saif heard that Ms Rahman Nasrin calling from outside.  She was the manager of the Restaurant.  Mr Saif rushed out of the kitchen and saw Mr Singh lying on the floor near the staircase which connected to the 1^st floor.  Mr Singh was lying on his back and there was a bag of flour which was about 3 feet away. 

19. As there was enough flour in the kitchen, Mr Saif asked Mr Singh why he had to bring a bag of flour from the 1^st floor and where he was going to put it.  Mr Singh kept silent.  Mr Saif then took Mr Singh to hospital by taxi.

20. Mr Saif said that nobody told Mr Singh to take a bag of flour. The floor and the staircase were not slippery.  They were clean and clear.  The staircase was even furnished with anti-slippery mat.

21. In his evidence, Mr Saif complained that after the accident Mr Singh was not willing to give consent to the respondent which would enable the respondent to obtain Mr Singh’s medical reports from the relevant hospital.  The respondent arranged Mr Singh to be examined by Dr Chan Kim Man.  Mr Singh attended the medical appointment but refused to give his consent to release the medical report by Dr Chan to the respondent. It was only until 3 June 2013 that Mr Singh gave his consent which enabled the respondent to obtain a report from AHMLNH dated 26 July 2013.

22. Mr Saif said that Mr Singh was actually suffering from degeneration in his back.  The small bulge or protrusion at L4/5 and L5/S1 was probably due to natural degeneration rather than due to the accident on 1 December 2011.

Discussion on liability

23. I accept Mr Singh’s version as to how the accident took place on 1 December 2011.  I also accept that as a result of the fall from the staircase, he was injured.  This was an accident which arose out of and took place in the course of the employment with the respondent at the Restaurant.  Mr Saif did not witness the accident but could tell Mr Singh’s condition immediately after the accident.  Mr Saif’s observation actually corroborates Mr Singh’s version that he had an accident in the course of his work.

24. Mr Saif said that Mr Singh took the bag of flour without instruction.  This is disputed by Mr Singh.  He said that it was Mr Saif who told him to take the bag of flour.  For the present purpose, it is unnecessary for me to decide which version is true.  Even assuming Mr Singh took the bag of flour without instruction, this would not affect his application for employees’ compensation.  Section 5(4)(b) of the Ordinance states as follows:

“an accident to an employee shall be deemed to arise out of and in the course of his employment, notwithstanding that the employee was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the employee for the purposes of and in connection with his employer’s trade or business;”

25. I have no difficulty in concluding that when Mr Singh carried the bag of flour and descended from the staircase, he was doing it for the purposes of and in connection with the respondent’s restaurant business.  I accept Mr Singh that he intended to use the flour for making pizzas.

26. In this application for employees’ compensation, it is unnecessary for the court to make any finding of negligence on the part of anyone.

Discussion on monthly earnings

27. Mr Singh in his witness statement stated that his monthly salary was HK$14,000 at the time of the accident.  In the Notice By Employer Of The Death Of An Employee Or Of An Accident To An Employee Resulting In Death Or Incapacity (“Form 2”) filed by the respondent in February 2012 which was signed by Mr Saif, it was stated the basic salary of Mr Singh was HK$13,000 per month with HK$1,440 per month as food allowance and HK$1,000 per month as transportation allowance, giving a total sum of HK$15,440 per month.

28. Mr Clement, solicitor acting for Mr Singh, invites the court to adopt the figure of HK$15,440 in Form 2 as the basis for assessing employees’ compensation.  But he maintains that the basic salary of Mr Singh was HK$14,000 per month as a result of an increase of HK$1,000 from HK$13,000 after probation.  The food allowance of HK$1,440 should be taken into account as part of the earnings at the time of the accident.

29. Mr Clement relies on the definition of “earnings” under section 3 of the Ordinance:

““earnings” means any wages paid in cash to the employee by the employer and any privilege or benefit which is capable of being estimated in money and includes the value of any food, fuel, or quarters supplied to the employee by the employer if as a result of the accident the employee is deprived of such food, fuel or quarters; and any overtime payments or other special remuneration for work done, whether by way of bonus, allowance or otherwise, if of constant character or for work habitually performed and including tips if the employment be of such a nature that the habitual giving and receiving thereof is open and notorious and is recognized by the employer:  but shall not include remuneration for intermittent overtime, or casual payments of a non-recurrent nature, or the value of a travelling allowance, or the value of any travelling concession or a contribution paid by the employer of an employee towards any pension or provident fund, or a sum paid to an employee to cover any special expenses entailed on him by the nature of his employment;”

30. If the HK1,000 is regarded as an independent travelling allowance on top of the basic salary HK$13,000, this HK$1,000 should not be included as part of the earnings of Mr Singh for the purposes of assessing employees’ compensation.

31. But if the increase of monthly salary from HK$13,000 to HK$14,000 was a general one without any specification, the whole sum of HK$14,000 should be regarded as the basic monthly salary and should be used for assessing employees’ compensation.

32. I accept Mr Singh’s evidence that when his monthly salary was raised from HK$13,000 to HK$14,000, the respondent did not specify it was for which particular purpose.  It was just a general increase in basic salary.  In a letter dated 10 November 2011 to Hong Kong Shanghai Banking Corporation which was signed by Mr Saif on behalf of the respondent, it was stated that Mr Singh’s monthly salary was HK$14,000 inclusive of transportation.  There was no attempt by Mr Saif to separate any travelling allowance from the basic salary.

33. As to the food allowance of HK$1,440 per month, Mr Singh agreed that during his employment with the respondent he was provided with 2 free meals each day.  The same should be included as the monthly earnings of Mr Singh.

34. In short, I accept Mr Clement’s submission that a figure of HK$15,440 [ie HK$14,000 (basic monthly salary) + HK$1,440 (food allowance)] should be adopted for monthly earnings.

Discussion on medical treatments

35. According to the report dated 2 September 2012 by Dr Hui Yuet Yum of the Accident & Emergency Department of AHMLNH, Mr Singh was seen around 15:30 on 1 December 2011.  He complained of back and left ear contusion.  He was fully conscious on physical examination.  There were tenderness on coccyx region and an abrasion wound on left external ear.  X ray showed that the lumbosacral spine was unremarkable and suspected angulation was noted in the coccyx region.  The diagnosis was contusion of trunk, back.  He was admitted to the orthopaedics ward for further management.

36. There is another report dated 3 September 2012 by Dr Fan Chi Ho Jason of the Department of Orthopaedics and Traumatology of AHMLNH.  It states that Mr Singh was admitted to the department on 1 December 2011.  He complained of low back pain after an injury on the same day.  Physical examination showed superficial abrasion over left external ear.  The lower lumbosacral spine was tender.  There was no focal neurological deficit of both lower limbs.  X-ray of lumbosacral spine showed loss of lumbar lordosis.  Computer tomography showed old fracture of left transverse process of T12 vertebra.  He was treated with physiotherapy.  He could walk unaided and was discharged on 5 December 2011 against medical advice.

37. Mr Singh was followed up regularly at the department clinic.  His back pain was static.  Magnetic Resonance Imaging of lumbosacral spine was done on 7 March 2012 and showed prolapsed intervertebral disc of L4/5 and L5/S1 with no neural compression.  Occupational work assessment on 14 June 2012 showed that he had decreased standing tolerance.  He had 75% confidence in returning to work. He was referred to vocation retraining and resettlement.  He was last seen at the clinic on 29 June 2012.  His back pain improved by 90%.  Sick leave was given from 1 December 2011 to 29 June 2012.

38. The report dated 9 October 2012 by physiotherapist Yeung Chun Wing of the Physiotherapy Department of UCH shows that Mr Singh started physiotherapy on 12 January 2012. Treatments in the form of interferential therapy, manual therapy, back mobilizing exercise, core stabilization training and home exercise regime were given.  After 8 treatment sessions, he reported to have 60% to 70% subjective improvement and was discharged on 19 March 2012.

39. There is a report dated 5 February 2013 by occupational therapist Eric Po of the Department of Occupational Therapy of UCH.  According to this, Mr Singh was referred to the department for work rehabilitation in May 2012.  His job as a chef required (a) occasional lifting and carrying a bag of flour of 30 kg; (b) frequent frying with the wok; and (c) frequent standing and walking.  He was away from work since the date of injury on 1 December 2011 and had difficulties in performing the aforesaid tasks.

40. Work hardening was arranged to maximize Mr Singh’s work capacity.  During the first session, he complained of residual tenderness over lower lumbar region and left upper limb weakness.  He rated the pain score by visual analogue scale (VAS) at 2/10 upon rest and 4-5/10 upon lifting or prolonged mobilization.  His trunk flexibility was adequate, with the fingertip-to-ground distance at 27 cm.  He had no difficulties in whole body range of motion, with the overall performance meeting the industrial standard of work sample.  However, his left power grip (24 kg) was significantly weaker than the right side (38 kg).  His standing and walking tolerances were decreased to 60 minutes only.

41. As to lifting performance, Mr Singh’s maximum low lift and high lift capacities were decreased to 40 lbs and 25 lbs respectively.  His frequent lifting and carrying capacities were decreased to 15 lbs and 20 lbs respectively.

42. Mr Singh’s demonstrated work capacity did not match with his previous job demand due to inadequate physical tolerance and lifting capacity.  As he had already changed job to selling mobile phones with less physical demand, Mr Singh was not keen on further training and was discharged on 17 July 2012.

43. Mr Singh was examined by specialist in Orthopaedics & Traumatology Dr Wong Kwok Shing Patrick on 25 September 2013. According to Dr Wong’s report dated 22 October 2013, Mr Singh sustained soft tissue lower back contusion injury and left ear abrasion as a result of the accident on 1 December 2011.  There was no bony lesion or lower limb’s neurological deficit.

44. The injuries sustained by Mr Singh were compatible with the mechanism of the accident described by him.  Mr Singh said that he had no previous back injury or back pain before the accident.  There was some mild degeneration including 2 levels of disc degeneration on MRI scan.  Such degeneration is common in the general population. This might or might not be symptomatic before the accident.  The accident probably aggravated the pre-existing degeneration as well on top of the direct soft tissue contusion, causing him to have more severe and longer lasting back pain and possibly some non-specific radicular leg symptoms.

45. The conservative treatments offered to Mr Singh by his attending doctors were standard, adequate and appropriate.

46. In the assessment by Dr Wong about 2 years after the accident, Mr Singh complained of residual back pain intermittently. The severity of pain was up to 7-8/10 (0 = no pain, 10 = most severe pain).  He also complained of numbness of his left lower limb all the time.  His ambulatory capacity was reduced.

47. Physical examination showed normal general ambulatory ability.  Examination of his back showed mild tenderness and mildly reduced lumbar spine movement with pain.  Simulation tests were largely negative.  Examination of his lower limbs showed no evidence of muscle wasting of the left side.  Motor power was normal.  He reported subjective reduced left lower limb sensation.  Reflexes were normal.  There was no nerve root tension sign upon straight leg raising tests.  Updated x-ray showed reduced lumbar lordosis and mild degeneration.

48. The physical findings showed satisfactory recovery of Mr Singh’s back contusion with mild residual symptoms.  Dr Wong opined that he might have overstated the severity of his pain to some extent.  There was no objective clinical/radiological finding to substantiate his claim of left lower limb reduced sensation/numbness all the time.  Mild non-specific radicular symptom at the 2 levels of small disc protrusions as found on MRI scan was possible.

49. Mr Singh had attained maximal medical improvement and does not require further treatment for his injuries.

50. From the orthopaedic perspective, the overall prognoses of Mr Singh’s soft tissue back contusion should be reasonably satisfactory.  He might have some residual back pain (but not to the extent of Gr 7-8/10) upon heavy exertion or prolonged ambulation, with or without mild lower limb numbness.  Functional capacity for his lower back would only be mildly reduced.  Significant lower limbs neurological deficit was not expected.  His overall ambulatory capacity would only be mildly reduced.

51. Dr Wong estimated Mr Singh to have 5% whole person impairment due to the residual lower back pain and possibly mild lower limb numbness and 5% loss of earning capacity.

52. Mr Singh should be capable of managing activities of daily living.  His enjoyment of life and ability to cope socially would be mildly affected by his injuries.

53. Dr Wong was of the view that Mr Singh should be capable of returning to his pre-accident job as a chef.  His efficiency and capacity at work would be mildly reduced after the accident.  He would require more rest after prolonged standing while cooking and assistance from other workers to handle heavy objects in the kitchen, such as carrying bags of flour.

Loss of earning capacity

54. In light of Dr Wong’s thorough and comprehensive analysis of Mr Singh’s conditions, I accept his view that Mr Singh’s work capacity would be mildly reduced as he will require more rest after prolonged standing while cooking if he chooses to return to his pre-accident job as a chef.  He will also have difficulty in lifting heavy objects in the kitchen.  For these reasons, I accept Dr Wong’s assessment that Mr Singh is suffering 5% loss of earning capacity as a result of the accident. I am prepared to adopt this figure instead of the 2% loss of earning capacity in Form 7 as assessed by the Employees’ Compensation (Ordinary Assessment) Board.  Mr Singh’s appeal against the board’s assessment is allowed.

55. I note the respondent’s argument that Mr Singh’s back condition is probably due to degeneration.  But Dr Wong had already taken into account of the same when making his assessment.

Compensation under section 9

56. Mr Singh was 41 years old at the time of the accident.  Pursuant to section 7(1)(b) of the Ordinance, the compensation for Mr Singh’s permanent partial incapacity under section 9 of the Ordinance is as follows:

  HK$15,440 x 72 months x 5% = HK$55,584

Compensation under section 10

57. Sick leave certificates were issued to Mr Singh covering the period from 1 December 2011 to 29 June 2012.  This was certified by the Employees’ Compensation (Ordinary Assessment) Board in Form 7.  The compensation for Mr Singh’s temporary incapacity under section 10 of the Ordinance is as follows:

  HK$15,440 x 6 months and 29/30 days x 4/5 = HK$86,052

58. As the respondent had already made partial payment for the months of January, February, March 2012 totalling HK$29,640, the respondent is only liable to pay Mr Singh HK$56,412 (ie HK$86,052 – HK$29,640) under section 10.

Section 10A

59. Mr Clement informs the court that medical expenses in the sum of HK$1,230 had already been paid by the respondent.  There is no need for me to make any assessment for medical expenses under section 10A of the Ordinance.

Summary on quantum

60. In summary, I have assessed Mr Singh’s claim for employees’ compensation as follows:

Under section 9	HK$55,584
Under section 10	HK$56,412
Total	HK$111,996
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Conclusion

61. In conclusion, I order that the respondent is to pay the applicant the sum of HK$111,996.

62. Interest is awarded on the aforesaid sum at half judgment rate from the date of the accident on 1 December 2011 to the date of judgment and thereafter at judgment rate until payment in full.

63. I make a costs order nisi that the respondent is to pay the applicant the costs of this application, to be taxed if not agreed.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.