Yeung Chun Mui v. D5 Beauty Salon Ltd and Others

DCEC 1752/2016

[2019] HKDC 67

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1752 OF 2016

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ASSESSMENT OF COMPENSATION

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Introduction

1.This is the assessment of the applicant’s employees’ compensation claim. She worked at a beauty shop operated by the 1^st respondent as a cosmetologist. On 7 March 2015, when she was about to perform a facial laser treatment on a customer, for reason unknown to her, a laser beam emitted from the machine and shone on her left eye. She suffered serious left eye injury as a result.

2.The applicant took out the present employees’ compensation claim on 12 August 2016 against the 1^st respondent.  In these proceedings, the 1^st respondent is not legally represented.  Its sole director and shareholder, Ms Chan Hoi Wah Ruby, attended two directions hearings in 2017, purportedly representing the 1^st respondent.  However, the requirements under Order 5A of the Rules of the District Court regarding representation have never been complied with.

3.An unless order was made against the 1^st respondent for the filing of an answer on 25 August 2017, in the presence of Ms Chan.  As no answer was filed within the prescribed deadline, judgment was entered against the 1^st respondent on liability with costs, leaving compensation to be assessed.  Ms Chan has not attended any subsequent hearings and, formally speaking, the 1^st respondent has not participated in these proceedings at all, including today’s hearing.

4.By order dated 9 March 2018, the Employees Compensation Assistance Fund Board was joined as the 2^nd respondent in these proceedings solely to contest the assessment of compensation.

5.The applicant has filed an affidavit of service proving that the last court order which, amongst other things, sets out the date of this assessment, has been served on the 1^st respondent at the residential address of Ms Chan as directed by the court.  I am satisfied that the 1^st respondent has had notice of today’s hearing and the assessment has proceeded in its absence.

6.In her application, the applicant has sought an appeal against the assessment by the Employees’ Compensation (Ordinary Assessment) Board made in Form 7 dated 6 June 2016.

7.The applicant confirmed in her written opening submissions that she would no longer wish to pursue the appeal.  I granted leave to the applicant to withdraw the appeal and ordered that the costs arising out of the appeal and its withdrawal be in the cause of assessment.  It was not unreasonable for the applicant to commence the appeal and seek expert evidence in this regard, given the seriousness of her eye injury.

8.In the absence of an appeal, the Form 7 assessment is final and binding on the parties: Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413 at 419C-I.  Based on that assessment, I therefore find that the applicant suffered from left eye injury resulting in left eye visual impairment and the injury has resulted in 47.5% loss of her earning capacity.

9.The applicant contends that her monthly earnings at the time of the accident were $15,000, as determined under section 11 of the Employees Compensation Ordinance, Cap 282.  The 2^nd respondent takes no issue with that.

10.Mr Alex S W Lai, counsel for the applicant, confirmed this morning that the applicant would not pursue the claim for sick leave in the sum of $1,600 under section 10 in view of the latest instructions from the applicant. Accordingly, the only matter in dispute between the applicant and the 2^nd respondent in today’s hearing is the compensation payable under section 10A for medical expenses.

The applicant’s case

11.The applicant was 41 years old at the time of the accident.  After the laser beam shone on her left eye, she immediately noticed blurring of her left eye vision with a black shadow.  There was however no eye pain or other discomfort.  She was treated at the Department of Ophthalmology of Tuen Mun Hospital.  She also sought treatment from private doctors in Hong Kong and the Mainland, and the Clinic Centre for Teaching and Research (Central) of The University of Hong Kong, School of Chinese Medicine (“the HKU clinic”).

12.According to the report of Tuen Mun Hospital, initial examination revealed left eye vitreous haemorrhage which, as found in subsequent examination, gradually subsided and formed a large macular hole.  It then progressed to macular scar formation.  There was 95% permanent visual disability of the left eye.

13.The applicant underwent a joint examination on 16 May 2018 by her expert and the 2^nd respondent’s expert, both specialists in ophthalmology. The experts find that there is 95% left eye central visual impairment.  They agree that on a balance of probabilities, it is highly likely that the left eye macular scar was caused by the laser beam emitted as alleged by the applicant. The macular injury is irreversible and permanent and they assess the loss of earning capacity at 47.5%.

14.Based on the above evidence, I am satisfied that the applicant’s left eye injury was caused by the accident.

15.As regards her employment with the 1^st respondent, the applicant’s evidence is that she started working for the 1^st respondent on 21 October 2013.  Her monthly income was $15,000, comprising a base salary of $8,000 and a commission guaranteed to be not less than $7,000 and was paid by the 1^st respondent in cash, by cheque or bank transfer.  The figure of $15,000 is supported by:-

(a)   Form 2 submitted by the 1^st respondent to the Labour Department dated 21 April 2015; and

(b)   Notices of Change of Information submitted by the 1^st respondent to the Labour Department dated 14 May 2015 and 25 June 2015 respectively.

16.These documents are not entirely consistent with the employer’s tax return filed by the 1^st respondent for the year 2014/2015 which states a yearly income of $168,750.  That would be equal to an average monthly income of $14,062.50.

17.On balance, however, I am prepared to accept the applicant’s own evidence and hold that at the time of the accident her monthly earning was $15,000.

Quantum

18.Accordingly, the compensation payable under section 9 is $513,000 (ie $15,000 x 72 x 47.5%).

19.Having taken into account the daily cap of $200 (which applies at the time of the accident), the applicant claims a total sum of $4,340 for medical expenses under section 10A. 

20.Of this amount, I reject the following two sums. 

21.First, the claim for $600 for three consultations in April 2015 at Jun Yu Naturopathic Holistic Centre.  According to the receipts, the treatment was for “Spinal Therapy”.  The applicant however said in oral evidence that she was treated on the eye with some type of equipment.  Quite apart from that, there is no evidence showing the medical qualification of the persons conducting the treatment.  This claim should not be allowed.

22.Second, the applicant says that she visited the HKU clinic about 12 times and therefore claims a total sum of $2,400.  However, the receipts and report issued by the HKU clinic go to show that there were only ten visits made in 2015, the first one being on 4 May 2015.  Contrary to that, the applicant said in oral evidence that she recalled that there should be a visit before the one on 4 May 2015.  However, in a declaration signed by her to the Labour Department dated 3 December 2015, she set out her treatment records which show that the first visit to the HKU clinic was made on 4 May 2015.  On the strength of the contemporaneous documents, I find that the applicant paid ten visits to the HKU clinic and would therefore disallow $400 under this item.  The inaccuracy in the applicant’s recollection may be due to the long lapse of time and the fact that she had attended many different treatment sessions at that time after her eye was seriously injured. 

23.I therefore allow the sum of $3,340 under section 10A. 

24.The applicant confirms that the 1^st respondent had paid a total sum of $7,298.90 to her for her injury.  This sum ought to be deducted from the compensation.

25.In summary, the applicant is entitled to compensation as follows:-

Section 9	$513,000
Section 10	0
Section 10A	$3,340
Deduct: Amount paid by the 1st respondent	($7,298.90)
Total	$509,041.10

Order

26.Accordingly, the compensation payable to the applicant is assessed in the sum of $509,041.10.  Interest shall accrue on this sum at half judgment rate from the date of the accident, ie 7 March 2015, until the date of judgment and after that at judgment rate until payment in full.

27.I further order that the 1^st respondent do pay (a) the applicant’s costs of the assessment, and (b) the 2^nd respondent’s costs of the assessment, in each case including all costs reserved and to be taxed if not agreed, with certificate for counsel and that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Alex SW Lai, instructed by the Legal Aid Department, for the applicant

The 1^st respondent was not represented and absent

Ms Christine Leung, instructed by P C Woo & Co, for the 2^nd respondent