Lam Ka Ho v. East Famous Ltd t/a Golden Harbour Seafood Restaurant

DCEC 812/2018

[2020] HKDC 1108

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 812 OF 2018

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Before: His Honour Judge KC Chan in Court

Date of Hearing:  24 November 2020

Date of Assessment of Compensation:  27 November 2020

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ASSESSMENT OF COMPENSATION

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1.Interlocutory judgment on liability was entered against the respondent on 15 June 2018 upon its admission made in the Form 16C filed on 15 May 2018.

2.This is the assessment of compensation.  The respondent does not appear to contest.  I am satisfied that it has due notice of this hearing and that it has been duly served the applicant’s written opening submissions and the hearing bundle.  This assessment therefore proceeds in its absence.

3.I accept the evidence of the applicant given in his witness statement filed on 6 December 2019 and in his supplemental witness statement filed on 24 June 2020, which is uncontested.

4.The applicant was born on 11 November 1966 and was 50 years old at the time of the accident.

5.Since 21 November 2016, he was employed by the respondent as a kitchen assistant with a monthly salary of HK$18,000.

6.At about noon on 24 December 2016, while working in the kitchen of the respondent cutting fish with a knife, he accidentally cut the dorsal side of his left thumb.  He attended the Department of Accident and Emergency of United Christian Hospital (“UCH”) the next day and was treated and discharged.  Upon follow-up on 30 December 2016, the condition of his left thumb wound was found to be getting worse due to wound infection.  He was then admitted to the Department of Orthopaedics and Traumatology of UCH for 3 days. The Neurovascular bundle was confirmed to be intact.  He was treated with antibiotics and discharged on 2 January 2017.  Pain and swelling were much improved during subsequent follow-ups.

7.Since March 2017, the applicant complained of left upper limb pain and numbness and has undergone a number of examinations and treatments.  As the expert Dr Chan Wai Fu in his report dated 9 January 2020 filed on behalf of the applicant (“the Expert Report”) opined that the applicant’s such upper limb ailments were caused by the pre-existing degeneration of his cervical spine that was not caused by the accident, it is not necessary for me to delve into this aspect.

Section 9 - Compensation in case of permanent incapacity

8.After review and by its certificate dated 28 September 2017 (“the Form 9”), the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed the applicant’s loss of earning capacity permanently caused by the injury at 0.5%.  Leave to appeal out of time against this assessment was granted to the applicant on 22 February 2019.

9.Only the applicant filed the Expert Report, the respondent did not file any.

10.In the Expert Report, Dr Chan in gist opined that there were (a) residual pain, tenderness and scarring over the applicant’s left thumb, (b) limitation in his left thumb movement, and (c) weakness in his left hand grip.  Dr Chan opined that the loss of earning capacity thereby caused is 3%.

11.I accept Dr Chan’s such opinion that the applicant suffers a 3% loss of earning capacity permanently caused by the injury and allow the appeal against the said assessment of 0.5% by the Board.

12.I also accept and find that the applicant was earning the salary of HK$18,000 a month for the month immediately preceding the accident.

13.The amount of the applicant’s compensation under section 9 is therefore: HK$18,000 x 72 x 3% = HK$38,880.

Section 10 – Compensation in case of temporary incapacity

14.In the Form 9, the Board assessed that the period of absence from duty necessary as a result of the injury was from 25 December 2016 to 10 February 2017.  In the Expert Report, Dr Chan opined that sick leave for the said period was appropriate.

15.In the hearing, Ms Young on behalf of the applicant accepts the calculation in Form 6 issued on 4 October 2017 pursuant to section 16A(5) (“the Form 6”) in that from the said period of absence 5 statutory holidays ought to be deducted, making the number of days of absence from duty caused by the injury 43 days.

16.The amount of the applicant’s compensation under section 10 is therefore: HK$18,000 x 43/30 x 4/5 = HK$20,640.

Section 10A – Payment of medical expenses

17.The applicant all along received medical treatments in relation to this injury from the public sector.  He has not produced the receipts for the medical expenses claimed, nor has he provided particulars as to the treatments he received such as the dates, the institution giving the treatment and such.  I do not accept his claim for an estimated sum of HK$3,000 for medical expenses, which was estimated without any basis.

18.From the reports of the treating doctors, it can be gauged that in relation to his left thumb injury, the applicant attended Department of Accident and Emergency of UCH 2 times (paying HK$100 each), and he has been hospitalized in UCH for 3 days (paying HK$100 per day).  I also accept the applicant’s oral evidence that he has attended government clinic for treatment of the injury 4 times, paying HK$50 each.

19.I therefore award medical expenses under section 10A the total sum of HK$700.

Disposal

20.In the premises, I allow the appeal against the Form 9 to the extent indicated above and also cancel the Form 6.  I assess the applicant’s total compensation in the total amount of HK$60,220 (HK$38,880 + HK$20,640 + HK$700).  As advance payment in the sum of HK$20,937 has already been received by the applicant which will be deducted from HK$60,220, I award to the applicant the sum of HK$39,283 with interest at half judgment rate from the date of the accident to the date of this assessment, and at judgment rate then after until full payment.

21.I make a costs order nisi, to be made absolute within the next 14 days unless there is an application to vary, that the respondent is to pay the applicant his costs of this assessment, to be taxed if not agreed, and the applicant’s own costs be taxed according to the Legal Aid Regulations.

22.I thank Ms Young for her assistance.

Ms Young Yu of Keith Lam Lau & Chan, assigned by the Director of Legal Aid, for the applicant

The respondent was not represented and did not appear