Wong Yat Ping v. Caritas – Hong Kong
Read the full judgment text of DCEC 2123/2015 on BabelCite. This District Court judgment was delivered on 20 July 2018.
1. This is the assessment of the quantum of compensation payable by the respondent to the applicant under ss 9, 10 and 10A of the Employees’ Compensation Ordinance (“ECO”). I would first set out the background.
Cites 5 cases
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DCEC 2123/2015 [2018] HKDC 857 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO 2123 OF 2015 --------------------------
-------------------------- Before: His Honour Judge MK Liu in Court Date of Hearing: 17 July 2018 Date of Judgment: 20 July 2018 ---------------------- JUDGMENT ---------------------- 1.This is the assessment of the quantum of compensation payable by the respondent to the applicant under ss 9, 10 and 10A of the Employees’ Compensation Ordinance (“ECO”). I would first set out the background. Background 2.On 24 January 2014, the applicant sprained her right wrist and right thumb whilst preparing food, cutting vegetables and opening food storage containers in an accident arising out of and in the course of her employment with the respondent (“the accident”). The applicant was employed by the respondent as a care assistant at the time of the accident. 3.On the date of the accident, the applicant was 48 years old. 4.On 4 February 2015, the applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”). On 18 February 2015, the Board issued a Form 7 (“the Form 7”). On 18 March 2015, the Board reviewed the assessment made in the Form 7. On 1 April 2015, the Board issued a Form 9 (“the Form 9”). As per the Form 9, the loss of earning capacity permanently caused by the injury suffered in the accident is 2%. Further, the periods of absence from duty necessary as a result of the injury (total 393 days) set out in the Form 9 are as follows:-
5.On 30 November 2015, an interlocutory judgment on liability (“the interlocutory judgment”) was entered for the applicant and against the respondent, and costs on liability up to the date of the interlocutory judgment was awarded to the applicant. 6.On 19 May 2016, the applicant was jointly examined by Dr Lam Kwong Chin (“Dr Lam”, the medical expert appointed by the respondent) and Dr Lau Sing Ki Kenric (“Dr Lau”, the medical expert appointed by the applicant). Dr Lam and Dr Lau have produced a joint medical report dated 11 July 2016 (“the Joint Report”). 7.By a notice of appeal dated 4 July 2018, the applicant has lodged an appeal (“the appeal”) against the assessment of loss of earning capacity permanently caused by the injury stated in the Form 9. The agreed items 8.At the beginning of this trial, Ms Virginia Leung, counsel for the applicant, has abandoned the appeal. Ms Leung elects to rely upon the figure in the Form 9 for the purpose of calculating the compensation payable under ECO s 9, ie the loss of earning capacity permanently caused by the injury being 2%. Ms Leung suggests that the compensation payable under ECO s 9 is as follows:-
9.Ms Vanessa Kwok, counsel for the respondent, accepts that the compensation payable under ECO s 9 is the above. 10.Both Ms Leung and Ms Kwok agree that the compensation payable under ECO s 10A is HK$6,477.00. 11.Ms Leung and Ms Kwok also agree that there should be interest on the total awarded to the applicant at half of the judgment rate from the date of the accident until the date of this judgment, and thereafter at judgment rate until full payment. 12.Both counsel agree that the applicant’s witness statement filed by the applicant and a witness statement filed by the respondent be deemed as evidence in this trial without calling the witnesses. However, the two witness statements may not have much relevance on the only issue in dispute as set out below. The only issue 13.The only difference between the parties is the compensation payable under ECO s 10. The parties cannot reach an agreement on the length of the period during which the applicant was temporarily incapable to work. 14.Ms Leung submits that the applicant should be regarded as temporarily incapable to work during the 393 days as set out in the Form 9, and the 41 days covered by the sick leave certificates issued after 1 April 2015 (“the Relevant Sick Leave Certificates”). Ms Leung submits that for the purpose of calculating the compensation under ECO s 10, the period during which the applicant was suffering temporary incapacity should be 393 days + 41 days = 434 days. 15.Ms Kwok accepts that the applicant is entitled to have the 393 days stipulated in the Form 9. However, Ms Kwok does not accept that the applicant can have the extra 41 days mentioned in Ms Leung’s submissions. 16.I have drawn counsel’s attention to ECO s 10(2), which provides:-
17.I have also drawn counsel’s attention to the Court of Appeal’s decision in Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120, in which the Court of Appeal said at [28]:-
18.The respondent does not accept that the applicant should be entitled to have the 41 days covered by the Relevant Sick Leave Certificates for the purpose of calculating the compensation under ECO s 10. By the operation of ECO s 10(2), the respondent bears the burden to rebut the presumption created by the Relevant Sick Leave Certificates. The only issue to be resolved in this trial is whether the respondent can rebut the said presumption. Analysis 19.The Relevant Sick Leave Certificates are 6 sick leave certificates issued by different doctors in the Tseung Kwan O Po Ning Road Government Out-Patients Clinic (“the Government Clinic”)[1]. 20.Ms Kwok submits that the presumption created by the Relevant Sick Leave Certificates under ECO s 10(2) has been rebutted. Ms Kwok relies upon the following:-
21.Ms Leung submits that the respondent has not rebutted the presumption in ECO s 10(2). Ms Leung also mentions that in the Joint Report, at §124, Dr Lau expressed an opinion that all the sick leaves granted to the applicant were necessary and fair. 22.With respect to Ms Kwok, I am unable to accept the respondent’s submissions.
23.In my judgment, the respondent has not rebutted the presumption created by the Relevant Sick Leave Certificates by the operation of ECO s 10(2). In the circumstances, the extra 41 days should be taken into account in calculating the compensation under ECO s 10. Quantum of the compensation payable 24.By reason of the aforesaid, the compensation payable by the respondent to the applicant is as follows:-
25.The total of the aforesaid is HK$13,255.20 + HK$106,532.50 + HK$6,477.00 = HK$126,264.70. the respondent has made some advanced payments to the applicant, the total of which being HK$43,774.10. Accordingly, the quantum of the compensation now payable by the respondent to the applicant should be HK$126,264.70 - HK$43,774.10 = HK$82,490.60. Disposition 26.I order that the respondent do pay the compensation as stipulated in paragraph 25 above to the applicant. There be interest on this sum at half of the judgment rate from the date of the accident to the date of this judgment, and at the judgment rate until full payment. 27.I also make a costs order nisi that save and except the costs provided in the interlocutory judgment, costs of these proceedings (including all costs reserved) be to the applicant, to be taxed if not agreed. There be a certificate for counsel for this trial. The applicant’s own costs be taxed in accordance with the Legal Aid Regulations. 28.Lastly, it remains for me to thank Ms Leung and Ms Kwok for the assistance provided to this court.
Ms Virginia Leung, instructed by Wai & Co, assigned by the Director of Legal Aid, for the applicant Ms Vanessa Kwok, instructed by Au & Associates, for the respondent | ||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCEC 2123/2015