Lin Jinjuan v. Yung Hon Keung t/a Yung Kee Restaurant

DCEC 1600/2017

[2019] HKDC 323

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1600 OF 2017

--------------------

--------------------

------------------------------------------

ASSESSMENT OF DAMAGES

------------------------------------------

Background

1.Pursuant to Application dated 13 July 2017, the applicant Madam Lin Jinjuan (“Madam Lin”) claims employee compensation in relation to an accident at work on 11 November 2015 under s 9, s 10 and s 10A of the Employees’ Compensation Ordinance, Cap 282, Laws of Hong Kong (“the Ordinance”).

2.Madam Lin was employed by the respondent as a waitress in Yung Kee Restaurant at G/F, 38 F Kweilin Street, Shamshuipo, Kowloon (“the Restaurant”), at the material time.

3.On the day in question, while delivering a dish to a customer, Madam Lin slipped and fell outside the doorway of the Restaurant and suffered a fracture right wrist as result (“the Accident”).  She sought treatment from Caritas Medical Centre (“CMC”) shortly afterwards.

4.Madam Lin was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) on 4 May 2017.  The loss of earning capacity permanently caused by right wrist fracture resulting in right wrist scar and stiffness was said to be 1%. [Form 7: A129]

5.In her Application Madam Lin sought to appeal against the said assessment pursuant to s 18 of the Ordinance. [A1]

6.Upon review of assessment held on 12 October 2017, the Board revised the loss of earning capacity to 2% [Form 9: A132].  Form 7 was cancelled in accordance with s 16G(4)/s 16GA(5).

7.Mr Chow, Madam Lin’s solicitor, confirmed that Madam Lin agreed to the Board’s assessment as per Form 9 and does not seek any appeal under s 18.

8.The sick leave period from 12 November 2015 to 19 January 2016, 1 March 2016, 24 May 2016, 8 November 2016 and 21 April 2017 (total of 74 days) granted by CMC was confirmed by the Board under both Form 7 and Form 9.

9.Madam Lin agreed to the sick leave period as assessed by the Board.

10.Interlocutory judgment on liability was entered on 1 August 2018 against the respondent.  This trial deals only with assessment of amount of compensation payable to Madam Lin.

11.The respondent was absent at trial despite being served all relevant papers.

12.I allowed trial to proceed in the absence of the respondent.

Evidence

13.Madam Lin relied on the medical reports contained in A107-109 of the Bundle.

14.Pursuant to the Order by HH Judge Andrew Li dated 6 March 2018, the said reports were to be adduced as agreed evidence without calling the makers to give evidence at trial.

15.So far as factual witness is concerned, there is only one witness at trial, ie Madam Lin herself.

Medical Evidence

16.According to the report of Dr Tsang Wai Tsan of the Accident & Emergency Department (“AED”) of CMC, Madam Lin attended the AED on 12 November 2015.  Physical examination showed right wrist tenderness and swelling. X-ray of the right wrist showed fracture right distal radius.  The diagnosis was fracture right wrist [C109].

17.She was then admitted to the Orthopaedics & Traumatology Department (“OTD”) of CMC where open reduction and internal fixation and arthroscopy to the right wrist was done. She was discharged on 17 November 2015.

18.According to the report of Dr Yeung Wan Hang Prisca of the OTD, Madam Lin was last seen in their department on 24 May 2016, and she still complained of some residual wrist pain.  X-ray showed fracture healed [C108].

19.The Board assessed Madam Lin to have suffering from 2% loss of earning capacity for “right wrist fracture resulting in right wrist scar and stiffness”.

Factual Witness

20.Madam Li is the only factual witness in these proceedings.

21.In her witness statement, which Madam Lin has adopted as her evidence in chief, it is said that she has only worked for the respondent for 3 months at the time of the Accident (August, September and October 2015).

22.Her daily wage was HK$450.00 and her earnings for the 3 months were HK$13,950.00; HK$12,600.00 and HK$12,600.00 respectively.  She was paid in cash.

23.Mr Chow in his Opening Submissions explained that the monthly earnings were calculated on the number of working days for the 3 months.  For August 2015, Madam Lin worked for 31 days and thus the monthly earnings were HK$13,950.00 [HK$450 x 31].  For September and October 2015, Madam Lin worked for 28 days and thus the monthly earnings for these 2 months were both HK$12,600.00 [HK$450.00 x 28].  The average monthly earnings were HK$13,050.00.

24.As to how Madam Lin could recall the exact number of working days, she explained in court that she recorded down the monthly salaries by looking the calendar shortly after the Accident.  She confirmed that she worked the full 31 days in August 2015, and that she only worked for 28 days in September and October 2015.  She wrote the information down on a piece of paper and handed to her social worker who assisted her in claiming employees compensation.

25.In court, Madam Lin said, for the first time, that she was provided 2 free meals per each working day (one for lunch at noon and one for dinner at about 5:00 pm) by the respondent.  She estimated that each meal amounted to around $25.00.00 and thus she enjoyed free meals amounting to about HK$50.00 per each working day.

26.Mr Chow invited that court to take into account the value of the free meals in calculating Madam Lin’s monthly earnings by relying on section 3 of the ECO, which states:-

“ “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;…” (emphasis added)

27.It is submitted that daily earnings should be HK$500.00 instead of HK$450.00.

28.For the 3 months that Madam Lin worked for the respondent, her earnings should be:-

August 2015	HK$500.00 x 31 = HK$15,500.00
September 2015	HK$500.00 x 28 = HK$14,000.00
October 2015	HK$500.00 x 28 = HK$14,000.00
	_________________
	Total: HK$43,500.00

29.Her average monthly earnings were thus HK$14,500.00 [HK$43,500.00 / 3].

Analysis

30.The respondent has not made any appearance nor filed any documents in these proceedings.

31.The medical evidence are agreed evidence pursuant to HH Judge Andrew Li’s Order of 6 March 2018.

32.Having considered all the medical evidence before me as well as the assessment by the Board, I am satisfied that Madam Lin suffered fracture right wrist as a result of the Accident and that the appropriate percentage of loss of earning capacity in this case is 2%. 

33.I am also satisfied that the sick leave period was 74 days.

34.In relation to the average monthly earnings, it is a matter credibility of the witness, ie Madam Lin herself since there was no documentary evidence.

35.Having heard Madam Lin giving evidence in Court, I am satisfied that she is an honest and truthful witness and did not exaggerate her evidence.

36.I accept her evidence in full.

37.I also accept that she was entitled to 2 free meals per working day in the value of $50.00, and the same should be included as part of her earnings in accordance with s 3 of the ECO.

38.In view of all the evidence before me, I find that Madam Lin’s average monthly earnings at the time of the Accident was HK$14,500.00 as submitted by her solicitor.

Compensation under Section 9

39.Madam Lin was aged 57 at the time of the Accident.  According to s 7(1)(c) of the Ordinance, she would be entitled to compensation equals to 48 months' earnings or 48 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(c) specified in the first column of that Schedule, whichever is the less.

40.The amount specified in the second column of the Sixth Schedule is $21,000.00.  I am bound to adopt Madam Lin’s average monthly earnings in the sum of $14,500.00 in calculating compensation under section 9.

41.For reasons stated above, I award damages under section 9 as follows: $14,500.00 x 48 x 2% = $13,920.00.

Compensation under Section 10

42.Madam Lin was granted sick leave by CMC from 12 November 2015 to 19 January 2016, 1 March 2016, 24 May 2016, 8 November 2016 and 21 April 2017 (total of 74 days), which was covered by the medical certificates issued by CMC [B133-1 to B139].

43.The same is certified by the Board when they assessed Madam Lin’s injury.

44.I am satisfied that Madam Lin’s length of absence from duty for the purpose of section 10 is 74 days.

45.I therefore find that the compensation payable to Madam Lin under section 10 to be:-

HK$14,500.00/30 x 74 x 4/5 = HK$28,613.33

Compensation under Section 10A

46.Madam Lin claims a total sum of HK$1,670.00.

47.The relevant receipts can be found in B140-150 of the Bundle.

48.I am satisfied that Madam Lin did incur such expenses.

49.I allow Madam Lin’s claim for medical expenses in the total sum of HK$1,670.00.

Conclusion

50.I find the total compensation payable to Madam Lin is:-

(1) under Section 9:	HK$13,920.00
(2) under Section 10:	HK$28,613.33
(3) under Section 10A:	HK$1,670.00
LESS payment from respondent	(HK$1,000.00)
	_________________
	Total: HK$43,203.00

Order

51.Judgment is entered against the Respondent in the sum of HK$43,203.00 with interest at half judgment rate from the date of accident until date of judgment, and thereafter at the judgment rate up to date of payment.

52.I also order costs of this action, including all costs reserved (if any), to Madam Lin to be taxed if not agreed.

53.Madam Lin’s own cost be taxed in accordance with Legal Aid Regulations.

54.I further order that:-

(a)   Service of the Judgment, together with a copy of the sealed Judgment, be effected by registered mail to the last known address of the Respondent.

(b)   A copy of the sealed Judgment and its Chinese translation be inserted as an advertisement in one local Chinese newspaper published and circulating in Hong Kong.

Mr Patrick Chow of Tang, Wong & Chow, for the Applicant

Defendant was not represented and did not appear