Wang Meizhen v. Lucun Company Ltd and Another

DCEC 568/2023

[2026] HKDC 616

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 568 OF 2023

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

IN THE MATTER OF AN APPLICATION BETWEEN

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

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

JUDGMENT

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

A.  INTRODUCTION

1.This is the assessment of compensation of the Applicant, Ms WANG Meizhen, under sections 9, 10, and 10A of the Employees’ Compensation Ordinance (“ECO”). The 1^st Respondent has not appointed any legal representative in this case and has been absent from its hearings since an early stage. By orders dated 5 January 2024, interlocutory judgment on liability was entered against the 1^st Respondent, and the 2^nd Respondent was granted leave to join the proceedings to contest the issue of quantum.

2.For the purpose of this assessment, the parties have obtained a single joint expert report by a specialist in orthopedics and traumatology, Dr. WONG Kwok Shing Patrick (“Dr Wong”), dated 8 July 2024 (“the Joint Report”). The Joint Report and other documentary evidence have been adduced without calling the makers thereof. The legal representatives of the Applicant and the 2^nd Respondent took part in the assessment hearing held on 31 March 2026, during which the Applicant attended and formally adduced her witness statement.

B.  BACKGROUND

3.The following background facts are not in dispute. On 11 April 2022, the Applicant was employed to work in a restaurant run by the 1^st Respondent at Shop Nos. S02-S04, 2/F, Tin Ma Court Commercial Centre, 55 Chuk Yuen Road, Wong Tai Sin, Kowloon, Hong Kong as a dish-washer. She was instructed to put smaller boxes of cooked rice in larger plastic boxes in the kitchen and stack up two (or more) such large boxes on a trolley for delivery to customers. Each large box could contain as many as 70 smaller rice boxes. She handled the same task a number of times that day.  

4.The Applicant was injured when she tried to lift or carry a larger box, but she did not stop work right after feeling pain. Instead, she carried on working until that evening and went to a pharmacy obtaining pain relief medicine. She kept on working for a few days and started consulting a medical doctor on 21 April 2022. For the purpose of this judgment, I will call what the Applicant described to have happened on 11 April 2022, which caused her injuries, as “the Accident”.

5.On 29 April 2022, the Applicant attended the Accident and Emergency Department of Caritas Medical Centre because of pain. Physical examination showed tenderness over her right side of back. X ray of lumbosacral spine showed degenerative change. She was referred to the Physiotherapy Department of the same Centre for further treatment. Consequently, 19 sessions of physiotherapy were conducted from July 2022 to January 2023.

6.The Applicant also attended the Occupational Therapy Department of the same Centre for 23 sessions from April 2023 to July 2023, as well as various other clinics/health centres.

7.Dr Wong examined the Applicant on 24 May 2024. In the Joint Report, Dr Wong recorded the Applicant’s complaint of low back pain at the frequency of twice per day on average lasting for around 30 minutes each time. Physical examination revealed that the Applicant still suffered from tenderness over right lumbosacral spine and paraspinal muscles. She was assessed to have 1% permanent loss of earning capacity as a result of the Accident by Dr Wong. Previous assessment by an Employees Compensation (Ordinary Assessment) Board (“the Assessment Board”) of the same loss was 0.25%, as recorded in a Form 7 dated 3 August 2023.

8.In the same Form 7, the Assessment Board assessed the Applicant’s period of absence from duty necessary as a result of the injury to be 21 April 2022 to 27 December 2022, 29 December 2022 to 16 July 2023 and 18 July 2023 to 20 July 2023 (i.e., roughly 1 year and 3 months). Dr Wong commented that such period of absence should be reasonable. The Applicant nevertheless claims additional periodical payment for the period from 21 July 2023 to 28 August 2023, relying on additional medical certificates issued by different clinics of the Hospital Authority.

9.A few findings in the Joint Report are highlighted by the 2^nd Respondent in its opening submissions for the present purpose:

(a)  At paragraph 64(2) on page 16 of the Joint Report, Dr Wong said there is a strong possibility that some other event or the natural progression of her condition would have brought about the Applicant’s present state;

(b)  On the same page, Dr Wong recorded the Applicant’s complaint about right shoulder pain as a result of the Accident. However, other than the medical report from the initial treating doctor (Dr LEE Chee Yuen), Dr Wong found no other medical documentation referring to the same;

(c)  At paragraph 70 on pages 18-19 of the Joint Report, Dr Wong stated that, at the time of his examination of the Applicant, the Applicant was estimated to have 3% whole person impairment by reason of the clinical condition of “non-specific chronic or chronic recurrent low back pain”. He went on to say, as the Applicant had a pre-existing condition, apportionment of her present impairment is required. Considering her clinical symptoms, the circumstantial evidence and the X-ray findings, one third of the current impairment is attributable to the Accident.

C.  ASSESSMENT OF COMPENSATION

10.The following issues on quantum are before this Court:

(a)  What were the average monthly earnings of the Applicant at the time of the Accident?

(b)  On what basis should the loss of earning capacity be calculated?

(c)  Is the Applicant entitled to periodical payment for the period from 21 July 2023 to 28 August 2023?

(d)  What amount of medical expenses is the Applicant entitled to recover under section 10A of ECO?

C1.  Monthly Earnings

11.The Applicant pleaded in the Application that her monthly earnings for March 2022, the month immediately preceding the Accident, were HK$18,000; subsequent amendments to the Application did not change this position. The 2^nd Respondent adopted a neutral stance to this factual position but reminded the Court that the Applicant bears the burden of proving the same.

12.During the assessment hearing, Mr Ho, solicitor for the Applicant, took me through various documents including the Form 2 filled out by the 1^st Respondent, MPF contribution records and bank statements. The Applicant also confirmed the same level of earnings in her witness statement. The evidence shows clearly pre-Accident monthly earnings of HK$18,000, not only in the immediately preceding month, but also for some time before the Accident. Applying section 11(1) of the ECO, the Court adopts this figure for the purposes of the assessments under sections 9 and 10 of the ECO.

C2.  Basis of Loss of Earning Capacity

13.The Applicant was born in December 1969 with 2 children who are currently adults. She received primary school education in Mainland China and has been a dish-washer for long time. After the subject accident, she started working as a security guard in December 2023.

14.This Court has to form its own view as to the appropriate loss of earning capacity with reference to all available evidence, see Cheung Man Kit v Chiu Lok Yan t/a New Luen Lik Engineering Co & Ors [2024] HKDC 330 at paragraphs 22-24. Further, as explained by the Court of Appeal in Tang Shau Tsan v Wealthy Construction Company Limited (unrep, CACV 58/2000, 5 April 2000) at paragraph 11, this Court is not bound to accept the percentage of whole person impairment assessed by Dr Wong in the Joint Report to be the percentage of the Applicant’s loss of earning capacity for the purpose of section 9 of ECO.

15.In the Joint Report, Dr Wong took into account the Applicant’s pre-existing condition and apportioned just 1% to the Accident out of the 3% impairment assessed on the basis of his clinical findings during the examination.

16.Dr Wong is an expert witness, and certainly the above is an opinion he was in a position to give. This Court’s role is different. This Court needs to apply relevant case law on whether an apportionment should be made in these circumstances.

17.It is well settled, as affirmed by the Court of Final Appeal in LKK Trans Ltd v Wong Hoi Chung (2006) 9 HKCFAR 103; [2006] 1 HKLRD 980, that on the true construction of the ECO, in particular its section 9(1)(b), no room exists for any apportionment to reflect the existence of a pre-existing condition as a concurrent cause of the employee’s incapacity in the event that a causal connection between the accident/injury and the incapacity is established; see also Sanjeev-Kumar v Fung Wong Truck Service Co Ltd (unrep, DCEC 1765/2012, DDJ Phillis Loh (as she then was), 4 July 2014) at paragraph 56 and Wong Lam Wei Holly v Hospital Authority [2024] HKDC 1372) at paragraph 23. In other words, insofar as the Accident was a contributory cause of the Applicant’s current impairment, the Applicant should be entitled to employees’ compensation to the full extent of her impairment. There should be no apportionment of impairment/compensation because there exists a distinct, or even more dominant cause, of the impairment.   

18.In these circumstances, I consider 3% should more appropriately be adopted as the Applicant’s loss of earning capacity for the purpose of section 9 of ECO. This figure reflects Dr Wong’s assessment of the Applicant’s condition as he examined and found from her. The additional exercise of apportionment can be undertaken by a doctor in his report – it is his discretion. However, such apportionment is not permissible under the law in the course of calculating the Applicant’s just compensation.

19.Mr Ho once advocated the adoption of 1% as the appropriate loss of earning capacity percentage, apparently by reason of Dr Wong’s one third apportionment to the Accident. In oral submissions, he said 3% was an appropriate figure and agreed with the principle against apportionment discussed. The 2^nd Respondent has no contrary view on that.

20.Accordingly, this Court assesses the Applicant as having a 3% loss of earning capacity under section 9 of ECO.   

C3.  Periodical Payment from 21 July 2023 to 28 August 2023

21.Dr Wong found the period of absence from work stated in Form 7, i.e., up to 20 July 2023, justified and reasonable. He examined the Applicant in 2024. At the time of examination and preparing the Joint Report, Dr Wong should have the evidence required for assessing whether the Applicant was entitled to one more month of absence from work in July/August 2023. He did not apparently find such additional absence necessary.

22.I will therefore only adopt the periods of absence certified in Form 7 for the purpose of my assessment under section 10 of ECO.

C4.  Medical Expenses

23.Parties come to consensus that the reasonable medical expenses recoverable by the Applicant under section 10A of ECO should be HK$5,265. I have considered the supporting receipts in the hearing bundle and adopted this figure.

C5.  Total Amount of Compensation under Different Heads

24.As the Applicant was 52 years old at the time of the subject accident, the amount of compensation under section 9 of ECO (permanent partial incapacity) payable by the 1^st Respondent to the Applicant should be calculated as follows:

HK$18,000 x 3% x 72 = HK$38,880

25.The total periodical payment (temporary incapacity) under section 10 of ECO should be:

HK$18,000 x 15 months x 4/5 = HK$216,000

26.By reason of the aforesaid, and after giving credit to the advanced payment of HK$47,933, the total amount of compensation which the 1^st Respondent should pay the Applicant is HK$212,132.00:

	Amount (HK$)
Section 9	HK$38,800
Section 10	HK$216,000
Section 10A	HK$5,265
	_______
Less: Advanced payment	- HK$47,933.00
	_______
TOTAL:	HK$212,132
	======

D.  DISPOSITION AND COSTS

27.I order the 1^st Respondent to pay HK$212,132 to the Applicant.

28.The Applicant is entitled to interest at half judgment rate from 11 April 2022 (date of the Accident) to the date of judgment and thereafter at judgment rate until the date of payment.

29.As to costs, I shall make an order nisi that:-

(a)  The 1^st Respondent should pay the Applicant’s and the 2^nd Respondent’s costs of the proceedings, to be taxed if not agreed;

(b)  There shall be no order as to costs as between the Applicant and the 2^nd Respondent; and

(c)  The Applicant’s own costs should be taxed in accordance with the Legal Aid Regulations.

30.The costs order nisi shall become absolute in the absence of an application to vary the same within 14 days.

Mr HO Wing Hang Howard of Howard Ho & Co, assigned by the Director of Legal Aid, for the Applicant

The 1^st Respondent was not represented and did not appear

Ms J Leung of Gallant, for the 2^nd Respondent