Chue Hoi Yan v. Elie Yan Ltd and Another
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DCEC 30/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 30 OF 2012 ------------------------
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------------------------ Before : Deputy District Judge Tracy Chan in Court Dates of Hearing : 22-23 January 2013 Date of Judgment : 6 February 2013 -------------------- JUDGMENT -------------------- Introduction 1.This is an application for employees’ compensation made by the applicant under sections 9, 10, and 10A of the Employees’ Compensation Ordinance Cap 282 (“the Ordinance”). 2.The 1st respondent, employer of the applicant at the time of the Accident, did not appear at court hearings since 3 August 2012 and her last documents was filed and served on 15 June 2012. Since the 1st respondent had failed to buy labour insurance for the applicant, the Employees’ Compensation Assistance Fund Board (“the Fund”) applied to intervene. Application was granted and the Fund was joined as the 2nd respondent on the day of trial. 3.Ms Loh representing the Fund submitted that the quantum as claimed would not be disputed. The Fund would conduct its case on the basis of the Answer filed by the 1st respondent and test the case of the applicant as to whether the Accident had arisen out of and in the course of employment. The 1st respondent’s case was that first it was not the duty of the applicant to do the purchase of stationery; and secondly, the applicant was not required to do any purchase at the time the Accident happened. 4.The present hearing is therefore on liability only. 5.The applicant was aged 29 at the time of the Accident, she was employed as a pet groomer by the 1st respondent. The address of the shop was at Shop C, Ground Floor, Hoi Kok Mansion, Nos 3-9 Whitfield Road, Hong Kong (“the Shop”). There was one Dr Hugh’s Veterinary Hospital (“Dr Hugh”) sharing same address with the 1st respondent’s pet grooming shop. 6.According to the applicant, on the day of Accident, she was asked by Ms Lai, the assistant nurse of Dr Hugh, to purchase some ball-pens for use. She received the phone call in the morning before she reported at work. After she took off the bus as usual in Gordon Road, instead of going to the Shop via northbound Electric Road, she headed for southbound Electric Road to do the purchase at a stationery shop situated at about one block away from Gordon Road. After the purchase she then went back to the Shop. Upon reaching outside a fruit shop at No 107 Electric Road, a signboard fell on her and she suffered injuries. She was sent to Tang Shiu Kin Hospital by an ambulance and was admitted and stayed there for 9 days for treatment. The Employees’ Compensation (Ordinary assessment) Board had on 25 September 2012 certified that the applicant had suffered 3.5% loss of earning capacity due to the back injuries she had sustained at the Accident. 7.The only issue in dispute is whether the Accident had arisen out of and in the course of employment of the applicant. 8.Under cross-examination the applicant said that although she was a pet groomer she would still have to carry out certain duties to facilitate smooth functioning of the Shop. Such other duties would include purchase of stationery as and when required. She referred to her employment contract at page 52 of the bundle, it was expressly stated that:
9.She said that there was altogether 5 staff working at the Shop and for Dr Hugh. She said every staff would be asked to purchase the stationery in need or anyone who felt the need could do the purchase. She had done it many times before for about once or twice a month. 10.She was cross-examined on why there was no invoice produced for the purchase. She said she did get the invoice but she did not know it was to be produced. She said it was only after the last conference she knew that the invoice might be useful and she did locate it at home. 11.Ms Lai also gave evidence. She confirmed that she had made a phone call to the applicant and asked her to buy some ball-pens. She explained when being cross-examined that she asked the applicant to buy those ball-pens because there was only 2 staff at the Shop at that time. She herself had to assist the vet to see client as she might have to do interpretation. The other staff would have to take care of other matters in the Shop. Analysis 12.After hearing their evidence, I find both the applicant and her witnesses truthful. I accept that the applicant had been asked to take on duties other than grooming pets. I find that those other duties included purchase of stationery for the Shop and Dr Hugh. I find that on the day of Accident, but for the request of Ms Lai, the applicant would not have to make a detour to that part of the Electricity Road and got injured eventually. I find that she had already finished the journey from her home to the Shop after alighting the bus and had started undertaking duties of her employment as she proceeded to buy those ball-pens. 13.Ms Loh for the Fund has fairly and justly submitted that if it is the finding of this court that first it was within the duties of the applicant to do the purchase, and secondly the applicant met the Accident in the circumstances as alleged, then the Accident did arise out of and in the course of the employment and therefore the 1st respondent shall be liable. 14.For the above reasons, I find that the Accident did arise out of and in the course of the employment of the applicant and the 1st respondent shall be liable. 15.As conceded by Ms Loh on behalf of the Fund, the quantum to be awarded is $180,674 :
Order 16.The 1st respondent shall pay to the applicant a sum of $180,674 as an award for her claim. Interest 17.There is no dispute on interest and I find it just and fair to award interest from the date of accident until judgment at half judgment rate and thereafter at judgment rate until full payment. Costs 18.After hearing submissions and viewing the authority helpfully cited by Ms Loh, I make a costs order nisi that the 1st respondents should bear costs of the applicant and those of the 2nd respondent’s. Such costs are to be taxed if not agreed. There be taxation in accordance with Legal Aid Regulations on the applicant’s own costs. Such order nisi shall become absolute unless application for variation is made within 14 days from the date hereof.
Mr. Lau Wai Wah Roland instructed by Messrs. Mike So, Joseph Lau & Co. assigned by D.L.A. The 1st Respondent in person, absent Ms Phillis L. P. Loh instructed by Messrs. P.C. Woo & Co. for the 2nd Respondent |
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