Remely B Garcia v. Alain Paul Chimene

DCEC1446/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1446 OF 2009

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Before: H H Judge Chow in Court

Date of Hearing: 25 October 2011

Date of Decision: 25 October 2011

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J U D G M E N T

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1.This is the applicant’s application for compensations under the Employees’ Compensation Ordinance in respect of an accident which took place on 15 July 2009 in the course of her employment with the respondent.

2.The applicant testified in court.  According to her, the respondent signed her contract of employment on 9 July 2008.  From 7 August 2008 she started to work for the respondent as a domestic helper at 1st Floor, Xanadu Court, 30 Shouson Hill Road (“the premises”).  On 15 July 2009 she was instructed by the respondent’s wife to put a big suitcase on top of a wardrobe.  The stool given to her to move things onto and off the wardrobe was at a height of about 30 to 36 inches tall, made of tubular steel with a wooden seat.  When she was climbing up the stool, suddenly and without warning, the stool started to rotate and slide.  She fell down on her left-hand side.  As a result, she suffered fracture to her left wrist.  Then, she was taken to the Hong Kong Sanatorium & Hospital for treatment.  She had her left wrist X-rayed and a doctor there told her that she needed an operation on her left wrist, as her left wrist was fractured.  The respondent did not testify in court and no witness for the respondent was called to testify.  As a result, there is no evidence from the respondent to challenge her evidence in court.  I accept her evidence.

Loss of earning capacity

3.The Employees’ Compensation (Ordinary Assessment) Board assessed her injury on 13 December 2010.  Loss of earning capacity permanently caused by the injury was assessed by the Ordinary Assessment Board to be 2.5%.  The applicant was examined by a medical expert,  Dr Wong Chin-hung on 28 March 2011.  He is a specialist in orthopaedics and traumatology.  Dr Wong assessed her loss of earning capacity to be estimated at 4%.

4.I have to decide whether her loss of earning capacity caused by the injury to be 2.5% or 4%.  The Form 7 issued by the Ordinary Assessment Board contained scanty information. It mentioned that the injury on the applicant’s left wrist fracture resulted in pain, stiffness, redness and scar, and that is the most important piece of evidence, and then the rest of the information is not relevant for the purpose of assessing the loss of earning capacity.  On the other hand, the assessment made by Dr Wong was based on the report he made.  It contained much more information than Form 7.  Further, the information was obtained all the way down to the day of examination, namely, 28 March 2011.  It contained information after the applicant was examined by the Ordinary Assessment Board on 13 December 2010.  The 4% of loss of earning capacity was assessed by Dr Wong based on facts set out in his report.  Regarding the 2.5% reached by the Ordinary Assessment Board, I do not know what facts they considered before arriving at this figure.  I have no hesitation to accept Dr Wong’s assessment.

The compensation under section 9

5.The applicant was 51 years old at the time of the accident.  The compensation, therefore, should be:  $10, 944 ($3,800 x 72 x 4%).

The compensation under section 10

6.The applicant had sick leave from 21 July 2009 to 2 September 2010, a total of 409 days of sick leave.  Her compensation under section 10 should be  $41,445.33 ($3,800/30 x 4/5 x 409).

The compensation under section 10A

7.She spent a total of $4,230 for medical expenses.  The total compensation payable to her is:

The remaining figure is $38,932.56.

8.I order that the respondent pay to the applicant within 28 days from today the sum of $38,932.56 plus interest thereon: interest from 15 July 2009 to 24 October 2011 be calculated at 50% of judgment interest rate; from 25 October 2011 to satisfaction, the interest rate be calculated at judgment rate.

(Discussion re costs)

9.I propose to make an order that the costs be taxed if not agreed.  The respondent do pay the applicant costs of this proceedings, to be taxed, if not agreed.  The applicant’s own costs to be taxed in accordance with Legal Aid regulations.

Miss C Chung, of John M Pickavant & Co., for the Applicant

Mr Raymond Chung, of Chung, Fong & Co., for the Respondent