Pin Kam Fa v. Land Success Holdings Ltd t/a Zen Health Massage

DCEC 670/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 670 OF 2016

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Before:  Deputy District Judge S.P. Yip in Court

Date of Hearing:  15 September 2017

Date of Assessment of Compensation:  15 September 2017

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ASSESSMENT OF COMPENSATION

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Background

1.This is an assessment of the compensation pursuant to the Employees Compensation Ordinance (ECO), Cap 282. Judgment on liability was entered in favour of the applicant by the order of Her Honour Judge Levy on 27 January 2017 with compensation to be assessed.

2.The respondent has not filed any answer to the employees’ compensation application and has failed to appear at any of the hearings including the hearing today.

3.The applicant herself came to give evidence in support of her claims.  She has adopted her witness statements as her evidence-in-chief.  The applicant was born on 14 April 1962 in Mainland China.  She came to Hong Kong in 1987.  She is married with a grown-up daughter.

4.On 25 December 2014, she worked as a masseuse with the respondent.  At around 4.30 pm that day, she was providing massage service by stepping on the back of a customer at the respondent’s shop located at Sham Shui Po called Zen Health Massage, during which she slipped and fell onto the floor from the back of the customer, sustaining injuries to her left wrist.

5.After the accident, she attended the Accident and Emergency Department of Caritas Medical Centre for treatment.  X-ray of her left wrist showed fractured distal radius.  She was then referred to orthopaedic specialist out-patient clinic for follow-up and further management.

6.She was assessed by the Employees Compensation (Ordinary Assessment) Board with a certificate of assessment (Form 7) dated 11 February 2016 with the following findings:

(i) Injury: left wrist fracture resulting in left wrist pain and stiffness;

(ii) Periods of absence from duty as a result of the injury: from 25 December 2014 to 31 July 2015 (a total of 219 days); and

(iii) Loss of earning capacity permanently caused by the injury: 0.5%.

7.The applicant agrees with the above assessment.

Assessment of Evidence

8.As the respondent has not adduced any evidence against the applicant’s case and failed to attend the assessment hearing, in the absence of any contrary evidence, I attach full weight on the applicant’s evidence.

9.Regarding the applicant’s earnings before the accident, since July 2014, she was paid for each session of massage performed and would receive HK$65 as remuneration for each session of foot massage and HK$70 for body massage.  Her salary in November 2014, ie, the month immediately preceding the accident, was HK$15,800.  I adopt such earnings as her monthly earnings for the purposes of assessment of compensation under the ECO as such earnings being the more favourable computation in accordance with section 11(1)(a) of the ECO.

Compensation for Permanent Partial Incapacity under Section 9 ECO

10.Section 7(1) of ECO stipulates a multiplier of 72 months for those aged between 40 and 56.  Since the applicant was aged 52 at the time of the accident, I agree that 72 months should be adopted accordingly.

11.Applying the loss of earning capacity permanently caused by the injury of 0.5% according to Form 7 and the above monthly earnings, the applicant’s compensation under section 9 is calculated as follows:  HK$15,800 × 72 months × 0.5% = HK$5,688.

Compensation for Temporary Incapacity under Section 10 ECO

12.The total of 219 days of sick leave was certified by treating doctors, which I allow in full.  Therefore, the compensation under this section shall be calculated as follows: 

HK$15,800 × 219/30 × 4/5 = HK$92,272.

Medical Expenses under Section 10A

13.All the medical expenses were supported by receipts totalling HK$440.  I allow such sum in full.

Conclusion

14.For the above reasons, the award of compensation is HK$98,400 including:

(i)  Section 9:  HK$5,688;

(ii)  Section 10:  HK$92,272; and

(iii)  Section 10A:  HK$440.

15.I also award interest for the above compensation of HK$98,400 at 4% from the date of the accident, ie, 25 December 2014, until the date of judgment and thereafter at full judgment rate until full payment.

Costs

16.I make the usual costs order that costs follow the event.  The respondent shall pay costs of these proceedings, such costs to be taxed if not agreed, with certificate for counsel.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Miss Ann T Y Lui, instructed by Legal Aid Department, for the applicant

The respondent was not represented and did not appear