Lam Wing v. Wisdom Office Supplies Ltd t/a Kam Po Cake Shop

DCEC 891/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 891 OF 2012

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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Introduction

1.This application is for employees’ compensation for the injuries the Applicant alleged to have sustained in the course of employment of the respondent.

2.Pursuant to the Order on 11 January 2013 by His Honour Judge S T Poon, judgment on liability was entered against the respondent as the respondent had filed no notice of intention to defend.  By the same order, damages are to be assessed. The present hearing is for assessment of damages.  Having read the affirmation of service, I am satisfied that the respondent had been given notice of the present hearing.  I therefore order the hearing to proceed in the absence of the Respondent.

Background

3.The applicant was born on 6 February 1979 and was aged 31 on the date of the accident.

4.According to the applicant, by an oral agreement made between the applicant and Mrs Chan of the respondent that the applicant would work 6 days a week, ie from Sunday to Friday and 5 hours daily, ie from 5:30 am to 10:30 am at an hourly income of HK$25.00 as a part-time salesperson for the respondent starting from 20 December 2010. 

5.An accident occurred on 29 December 2010 when the applicant sprained her lower back in the course of preparing and distributing food items inside Kan Po Cake Shop (“the Accident”).  The applicant had work 8 days when the Accident happened and she was paid HK$1,000.00 in cash as her salary after the accident.

6.According to the applicant, she felt pain at her lower back after the Accident and as the pain subsisted, she sought treatment from　a Chinese Medicine Practitioner 張玲玲 on the next day. Seeing no improvement after 10 visits, she began to attend the A&E Department of Princess Margaret Hospital on 12 January 2011 and was treated with injectable analgesics with medication and physiotherapy as follow-up treatment.  On her follow-up visit to Princess Margaret Hospital on 19 January 2011, the applicant was referred to the O&T Department.  Due to increasing low back pain and lower limb numbness, the applicant was admitted to the O&T Department on 27 February 2012 and was discharged on 14 March 2012.

7.In addition to medical treatment received from Princess Margaret Hospital, the applicant also attended South Kwai Chung Jockey Club GOPC and Wah Yau Tong Chinese Bonesetter Clinic on various occasions and she said she was still being disturbed by her low back pain up to the present moment.

8.The applicant was granted a sick leave period of 93 days. She was examined by the Employees’ Compensation (Ordinary Assessment) Board on 16 July 2012 and 14 August 2012 and was assessed to have 3% loss of earning capacity permanently caused by the injury sustained in the accident.

Compensation

9.The applicant seeks compensation under s9, 10 and 10A for a total sum of $21,616.80 and interest at half interest rate from the date of Accident to the date of judgment.

(a) Section 9 compensation (loss of earning capacity):-

HK$3,000.00 x 96 x 3% = HK$8,640.00

(b) Section 10 compensation (sick leave pay):-

For the period from 30 December 2010 to 30 April 2011

HK$3,000.00 x 35/30 days x 4/5 = HK$2,800.00

For the period from 1 May 2011 onward

Since the Minimum Wage Ordinance (Cap 608) took effect from 1 May 2011, the applicant earning shall be adjusted to HK$3,360.00 per month (HK$28.00 x 5 hours x 24 days per month)

HK$3,360.00 x 58/30 day x 4/5 = HK$5,196.80

Total : HK$2,800.00 + HK$5,196.80 = HK$7,996.80

(c) Section 10A compensation (medical expenses):-

The applicant has spent HK$5,080.00 as her medical expenses but under Section 10A, she will only claim a sum of HK$4,980.00. 

My Findings

10.After hearing evidence of the applicant and viewing relevant documents, I find the applicant honest and truthful.  I make an award of damages as claimed.

11.I also award pre-judgment interest accrued on the compensation at half of the judgment rate (4% p.a.) from the date of accident (29 December 2010) to the date of assessment and thereafter at judgment rate until payment.

Order

12.My order is as follow :

a.   The respondent do pay to the applicant a total compensation of  HK$21,616.80;

b.   Interest at half judgment rate on the compensation from date of Accident to date of assessment;

c.    Further interest against the respondent after judgment in full judgment rate from the date of assessment until the date of full payment;

13.I see no reason that costs should not follow the event.  I make an order the respondent do pay the costs of the assessment of compensation to be taxed if not agreed.  Applicant’s own costs to be taxed in accordance with legal aid regulations. This is an order nisi to become absolute in 14 days if there is no application to vary same.

Ms. Chan Hoi Yan Andrey of Messrs. Chan & Chan assigned by DLA for the Applicant

Respondent act in person and absent