Tsang Choi Ping v. Li Yin Lun
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DCEC 447/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 447 OF 2011 ____________
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Before: His Hon Judge Leung in Court Date of hearing: 6 January 2012 Date of judgment: 6 January 2012 _____________________________________ ASSESSMENT OF COMPENSATION _____________________________________ 1.For injury at work on 18 March 2010, the Applicant (“Tsang”) claims compensation against the Respondent, her then employer (“Leung Kee”), pursuant to the Employees’ Compensation Ordinance, Cap.282 (“the Ordinance”). Judgment on liability was entered against Leung Kee on 12 August 2011. Before me is the assessment of the compensation. 2.Leung Kee has all along been absent. I am satisfied that Tsang should be allowed to proceed. The accident, injuries and treatment 3.Tsang was 58 years old; working as a general worker at Leung Kee, a hotpot restaurant, at the time of the accident. Briefly, at about 10:30 pm on the day in question, Tsang and her co-worker was moving a pot of boiling soya sauce from the stove. In the course of that, the pot tilted, causing the hot soya sauce to spill over Tsang. Both her legs suffered from scald injury. 4.Upon admission to the hospital, Tsang was found to have suffered second degree burn over both legs from knee down mainly to the anterior the foot dorsum, amounting to 9% of her total body surface area. The wounds were dressed and she was discharged. She continued to receive outpatient dressings from various government clinics until 23 May 2010. She had also sought private medical treatment. Post-accident 5.At the time of the accident, she had 2 part-time jobs daily. Between 7.30 am and 12.30, she worked for Yau Hing Food Processing (“Yau Hing”) as general worker. Her daily job involved transporting by hand-push cart and delivering noodle products from the factory in Tai Kok Tsui to the various customers in the district. 6.Leung Kee was where she later worked between 3 pm and midnight. Her daily job there involved transporting foodstuff and ingredients for hotpots from the market to the restaurant. She was also responsible for washing the foodstuff and ingredients as well as sending dishes from the kitchen to the tables. She also cleared and cleaned the tables after the customers had checked out. Work, according to her, was busy. 7.She worked for 30 days a month in both part-time jobs. From Yau Hing, she earned a monthly income of HK$4,300 and from Leung Kee a monthly income of HK$8,100. 8.Tsang was given sick leave until 23 May 2010. She resumed work at Yau Hing on 1 July 2010. The time and nature of work was as before. Due to the heavy duty, the sites of scar at the feet caused her needle pain, itch and discomfort. There was occasioned cramp. She could not stand or walk for too long especially with the right foot. Due to the difficulty in coping with the delivery work, she resigned from Yau Hing on 31 August 2010. Yau Hing confirmed the same in writing dated 2 December 2010. She did not attempt resuming work at Leung Kee. 9.Tsang started to work part-time as a dish-washing worker at various eateries in September 2010. Since 1 March 2010, she started to work part-time for Yiu Kee, which is a noodle shop (“Yiu Kee”). This lasted until the end of July 2010 when she became a full-time worker there. Nature of work remained unchanged. 10.She no longer works 30 days a month as before but would take the days of rest now. At Yiu Kee, she worked 26 days per month earning about HK$4,000 a month when working part-time and about HK$8,000 when starting to work full-time. 11.I accept Tsang’s evidence and find the same to be the fact accordingly. Form 7 12.Tsang was examined by the Employees’ Compensation (Ordinary Assessment) Board on 23 March 2011. By Form 7 dated 6 April 2011, the Board certified her permanent loss of earning due to “lower limbs scald resulting in both feet scar, pain and numbness” to be 5%. 13.By notice dated 11 April 2011, Tsang appealed the Board’s assessment. Medical expert evidence 14.Tsang was examined by Dr Ian Nicolson, specialist in plastic surgery, on 20 September 2011. The doctor produced his expert report dated 20 September 2011. 15.Dr Nicolson noted Tsang’s current complaints about her feet as mentioned above. Examination results and photographs of the current condition of her legs and feet are noted. It suffices for me to say that the scars were conspicuous and pigmented, particularly serious on the right foot. Dr Nicolson opined that Tsang has permanent cosmetic disability. But considering her stage in life (aged 58, divorced with 4 children), the position of the scars and the nature of her pre-accident job, I do not think cosmetic disability in her case was and would be the source of impact on her earning capacity. 16.The real concern is about the development of hypertrophic scars on the right foot. Dr Nicolson actually believes that it was the development of such condition that progressively interfered with her ability to cope with the heavy duties when she resumed her pre-accident job. 17.Now the hypertrophic scars of the right foot are mostly stable but still mildly active in parts. Whilst she is fit for her present duties at work, she is unfit for heavy work. Over the years, the hypertrophic scars would gradually improve. She could possibly benefit from scar treatment. Considering all those, the doctor differs from the Board and suggested for the purpose of assessment 7% loss of earning capacity. Section 18 appeal 18.I am convinced that Tsang was keen and did reasonably attempt to resume work after the expiry of sick leave. I accept the expert evidence of Dr Nicolson. Considering the nature of her work prior to the accident (including heavy duties such as transportation and delivery of foodstuffs and ingredients on hand-pushed cart on foot) and her ability to cope now, I am prepared to differ from the Board and allow the section 18 appeal. For the purpose of assessment, I find 7% loss of earning capacity. Pre-accident income 19.Pursuant to section 11(1) of the Ordinance, Miss Chui accepts, Tsang’s relevant pre-accident income for the purpose of assessment should be the sum of HK$8,100 earned from Leung Kee, her employer. Section 9 compensation 20.At Tsang’s age, pursuant to section 7(1)(c), the section 9 compensation should be HK$8,100 x 7% x 48 = HK$27,216. Section 10 compensation 21.Sick leave up to 23 May 2010 was considered by Dr Nicolson to be appropriate. Section 10 compensation should therefore be HK$8,100 x 4/5 x 66/30 = HK$14,256. Tsang confirmed that she has received from Leung Kee periodical payments in the total sum of HK$7,992. The net compensation should therefore be HK$(14,256 – 7,992) = HK$6,264. Section 10A compensation 22.Tsang produced receipts in support of the medical expenses claimed in the total sum of HK$1,105. Summary 23.In summary;
Order 24.Compensation is assessed at the sum of HK$34,585 with interest thereon at half judgment rate from the date of accident to today; and at the judgment rate thereafter until payment. Leung Kee shall pay Tsang’s costs of these proceedings, including any costs reserved. Costs shall be taxed if not agreed. Tsang’s own costs shall be taxed subject to legal aid regulations.
Miss Kathy Chui of Messrs Vincent T K Cheung, Yap & Co for the Applicant on the assignment by the Director of Legal Aid The Respondent, in person, absent | |||||||||||||||||||||||||||||||||||||