Yeung Walde Bombongan v. Highwood International Ltd

DCEC 2191/2022

[2025] HKDC 1929

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2191 OF 2022

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.The Applicant claimed to have suffered injuries during employment on 16 July 2022 and she filed her application for employees’ compensation against the Respondent on 26 October 2022. 

2.The Respondent was previously legally represented and has filed an answer.  On 4 July 2024, HHJ Phillis Loh fixed the trial of this application on 28 October 2025 and directed the Applicant to serve the order together with the trial documents on the Respondent by leaving them at the Respondent’s registered office.

3.The Respondent was absent at the trial before me.  The Applicant has caused an affirmation of service to be filed and I was satisfied that the aforesaid order of HHJ Phillis Loh was duly served on the Respondent.  I therefore proceeded with the trial in the absence of the Respondent.

4.The Applicant was the only witness testifying at the trial. While the Respondent has filed three witness statements, those witnesses did not attend the trial and I will wholly disregard their statements.  At the end of the trial I reserved judgment, which I now hand down.

BACKGROUND

5.The Applicant was born on 4 January 1970.  She began employment with the Respondent since 9 July 2009 and she was assigned to work as a supervisor at a restaurant called Trafalgar at 5/F, 54-62 Lockhart Road, the Broadway, Wanchai. 

6.Since 1 April 2022, the Applicant was assigned to work three times a week in another restaurant called CENA at 9 Sha Tsui Path, G/F, Sai Kung, New Territories. 

7.At around 9pm on 16 July 2022, the Applicant was working in CENA.  She was serving a table of four guests and a dog which belonged to one of the guests bit her left hand.  As a result, she sustained left hand bite injury.

8.The Applicant was taken to the United Christian Hospital for treatment after midnight.  Medical examination revealed multiple wounds on her left hand.  She was admitted into the United Christian Hospital and was discharged on 21 July 2022.  By 28 February 2023, the attended a total of 22 treatment sessions.

9.The Respondent admitted that the Applicant was its employee at the material time.  Its defence, as set out in its answer dated 17 May 2023, was that the Applicant played with the dog that bit her without the Respondent’s permission and against the Respondent’s prohibition.

LIABILITY

10.In light of the defence advanced by the Respondent, I consider that I need to resolve the following issues in relation to the question of liability:-

(1)  Did the Applicant play with the dog in contravention of the Respondent’s policy?

(2)  If the answer to (1)  is in the affirmative, would it affect the Respondent’s liability?

11.In its answer to request for further and better particulars dated 30 August 2023, the Respondent alleged that when the Applicant commenced employment with it on 9 July 2009, its director Mr Tam Ho Sing and its manager Ms Eva Damaso Myrna informed the Applicant of the Respondent’s policy in the following terms:-

“… due to hygiene and safety concerns, employees are prohibited to be in any physical contact with any pets at any time during work hours. The restaurant policy has been enforced across all restaurants under the group company and has also been mentioned over weekly briefings and as reminders.”

12.Further, the Respondent alleged in its answer to request for further and better particulars that before the Applicant started working in CENA, the manager Mr Matthew Ng explained to her the Respondent’s policy in the following terms:-

“… given that the restaurant is a place where food and drinks are served and employees are in physical contact of handling foods, all employees are strictly prohibited to be in physical contact with any pets at any time during performance of works as a matter of health and safety concerns. There is zero tolerance policy of staff being in physical contact with any pets which entered the restaurant premises for whatever reason. Due to the importance of this policy, this is also stressed by Mr Ng over weekly briefings to all the staff, including the Applicant as well as reminders whenever appropriate.”

13.It can be seen from the above that the policy is not in written form and was allegedly communicated to the Applicant orally.  While the Respondent has filed witness statements of Mr Tam, Ms Myrna and Mr Ng, none of them attended the trial.  As such, their statements must be disregarded and there is nothing left in evidence to support the Respondent’s defence.

14.In any event, according to the unchallenged evidence of the Applicant, she was not playing with the dog at the time of the accident.  Rather, the dog suddenly bit her left hand when she was serving the table.  Furthermore, the Applicant testified that Mr Tam, Ms Myrna and Mr Ng had never informed her of the so-called policy or prohibition, and in fact the Respondent allowed pets to be present in the CENA premises.

15.In the circumstances, I find that the Respondent did not have a policy against employees playing with dogs present in the restaurant, and the Applicant was not playing with the dog at the time of the accident.

16.It is thus not necessary for me to decide how the Applicant’s breach of the alleged policy might have affected the Respondent’s liability.  For the sake of completeness, I would note that section 5(3)  of the Employees’ Compensation Ordinance stipulates as follows:-

“(3)  In any proceedings under this Ordinance where it is proved that the injury to an employee is attributable to the serious and wilful misconduct of that employee, or that an injury by accident arising out of and in the course of his employment is deliberately aggravated by the employee, any compensation claimed in respect of that injury shall be disallowed; except that where the injury results in death or serious incapacity, the Court on consideration of all the circumstances may award the compensation provided by this Ordinance or such part thereof as it shall think fit.”

17.The word “wilful” imparts that the misconduct would have to be deliberate and not merely a thoughtless act on the spur of the moment, and the word “serious” means not that the actual consequences were serious but that the misconduct itself was so: see Johnson v Marshall Sons & Co Ltd [1906] AC 409 at pp.411-412 per Lord Loreburn LC.

18.Even if the Respondent had the so-called policy at the material time, there was no wilful misconduct on the Applicant’s part as she was not playing with the dog.  And even if the Applicant was playing with the dog, it cannot be considered to be an act of serious misconduct.  Therefore, section 5(3)  of the Ordinance would not assist the Respondent one way or another.

19.By reason of the aforesaid matters, I find that the Applicant suffered personal injury by accident arising out of and in the course of the employment, and the Respondent is liable to pay compensation to the Applicant.

QUANTUM

Section 9 Compensation

20.Given the Applicant’s age at the time of the accident (ie 52), for the purpose of computing the compensation under section 9, section 7(1)(b)  and the Sixth Schedule of the Ordinance are relevant.

21.Pursuant to section 7(1)(b), in the case of permanent total incapacity, the compensation would be a lump sum equal to (1)  72 months of the applicant’s earnings; or (2)  72 times the amount specified in the Sixth Schedule, whichever is the less.  Pursuant to section 9, in the case of permanent partial incapacity, the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury.

22.The applicable method for calculating the Applicant’s monthly earnings at the time of the accident is set out in section 11(1)  of the Ordinance, which provides as follows:-

“(1)  Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings ―

(a)  for the month immediately preceding the date of the accident; or

(b)  computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

23.As can be seen in the passbook produced by the Applicant, she received earnings in the sum of $18,976 on 7 July 2022 (ie for the month immediately preceding the date of the accident).  According to the two single joint experts (one orthopaedics expert and one psychiatry expert), her loss of earning capacity was assessed at 2% and her whole person impairment was assessed at 7%.  

24.Therefore, the Applicant is entitled to compensation in the sum of $122,964.48 (ie $18,976 x 72 x 9%)  pursuant to section 9 of the Ordinance.

Section 10 Compensation

25.Under section 10(1)  of the Ordinance, an injured employee is entitled to a monthly payment of fourth-fifths of the difference between the monthly earnings which he was earning at the time of the accident and the monthly earnings which he is earning or capable of earning during the period of his temporary incapacity after the accident.

26.In the Form 9, the Compensation Board certified a sick leave period of 635 days, and on the Applicant’s calculation this translates to 21.166 months of sick leave.  While the Applicant suffered temporary incapacity after the accident which extends beyond 12 months after the date of the accident, she did not ask for any upward adjustment pursuant to section 11(1A)  of the Ordinance.

27.As such, the Applicant is entitled to compensation in the sum of $141,599.55 (ie $18,976 x 21.166 x 4/5)  pursuant to section 10 of the Ordinance.

Section 10A Compensation

28.Section 10A of the Ordinance is concerned with the employer’s liability to pay the medical expenses for the medical treatment in respect of the employee’s injuries. 

29.The Applicant claims $15,290 under this head. However, she was able to provide documentary evidence only in support of $12,775 worth of medical expenses.  I therefore hold that the Applicant is entitled to compensation in the sum of $12,775 pursuant to section 10A of the Ordinance.

CONCLUSION AND DISPOSITION

30.For the reasons set out above, I hold that the Applicant is entitled to compensation in the total sum of $277,339.03 (comprising section 9 compensation of $122,964.48, section 10 compensation of $141,599.55 and section 10A compensation of $12,775).

31.I will award interest on the above sum at half judgment rate from 16 July 2022 (ie the date of the accident)  to the date of this judgment, and at judgment rate thereafter until the date of full payment.

32.I also make an order nisi that the Respondent do pay the Applicant’s costs of the action including all costs reserved, to be taxed if not agreed, and that the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Mark Clement Richard, of Heung Massie & Clement, for the Applicant

The Respondent was not represented and did not appear