Kaur Paramjit v. Li on Na t/a 新長發快餐

DCEC 1479/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1479 OF 2012

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JUDGMENT

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Background

1.This is an application by the applicant under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (the “Ordinance”) for compensation for injury caused to her by an accident on 5 January 2012.  It is the applicant’s case that the accident occurred arose out of and in the course of her employment with the respondent.  The applicant has already obtained judgment on liability against the respondent on 15 February 2013.  By the same order, costs on liability have been awarded to the applicant.  The present hearing is only concerned with assessment of the appropriate compensation to be awarded to the applicant.  The respondent is absent at today’s hearing and hence the applicant’s evidence is not being challenged at all. 

2.At the time of the accident on 5 January 2012, the applicant was employed as a dishwasher by the respondent and was working at the Ground Floor of No 92, Tin Sam Tsuen, Tai Wai, Shatin, New Territories, Hong Kong.  The applicant was cleaning dishes at the restaurant.  At the material time of the accident, the applicant was carrying a plastic container full of washed dishes and intended to put the same on a table, when her foot was caught on some folded carton boxes lying on the floor.  She fell to her right side and landed on her back and shoulder.  As a result, the applicant sustained injury to her lower back and right shoulder.

Facts relevant to assessment of compensation

3.The applicant was born on 4 June 1965 and was thus aged 46 at the time of the accident.

4.The applicant testified that she was employed by the respondent from 17 December 2011 at an hourly wage of $30 and to work from 8 am to 5 pm.  Hence, her daily wage was $270.  She agreed with the respondent that she would work 28 days in a month. Her monthly take-home pay was therefore $7,560.  The applicant further testified that she was paid her wages net, ie no deduction was made from the above figure by way of the applicant’s portion of the MPF contribution.  Adding back the 5% which the employer had to pay on her behalf by way of MPF contribution, this would give rise to the figure of $7,958 as the monthly earnings of the applicant at the time of the accident.

5.The Form 7 issued on 20 February 2013 by the Employees’ Compensation (Ordinary Assessment) Board shows a sick leave period from 5 January 2012 to 2 December 2012 (ie a period of some 11 months) and a 3% loss of earning capacity.  The applicant filed a Notice of Appeal with this court on 1 March 2013 against this assessment.

6.For the purpose of the present proceedings, the applicant appointed Dr Wong Kwok-shing, Patrick (“Dr Wong”) as her orthopaedic expert and she was examined by Dr Wong on 14 June 2013 for preparing his expert medical evidence.  In his report dated 11 July 2013, Dr Wong opined that the applicant has suffered a 5% loss of earning capacity as a result of the accident, considering the job requirement of her pre-accident job.  From the orthopaedic perspective, the applicant should be capable of returning to work on her pre-accident jobs, including being a dishwashing worker and laundry worker.  Her efficiency and capacity at work will be reduced after the accident, such as she will require assistance from other workers to handle heavy objects and she will require more frequent rest in-between prolonged continuous work.  Dr Wong was also of the opinion that the sick leave period assessed was reasonable.

7.By the order of HH Judge Kent Yee dated 5 April 2013, it was ordered that Dr Wong’s report be adduced as evidence without calling the maker thereof.  Taking into account all the medical evidence as a whole, I would allow the applicant’s appeal on the assessment of the loss of earning capacity under Form 7.  I would adopt 5% as the percentage of the loss of earning capacity suffered by the applicant as a result of the injuries she sustained in the accident.

8.The applicant has received advance payment of $13,728 from the respondent.

9.The applicant has incurred medical expenses of $5,113.

Compensation under section 9

10.The compensation for the applicant’s permanent partial incapacity pursuant to section 9 of the Ordinance is, therefore:-

$7,958 x 72 x 5% = $28,649.

Compensation under section 10

11.The compensation for the applicant’s temporary loss of earning capacity pursuant to section 10 of the Ordinance is:-

$7,958 x 11 months x 4/5 = $70,030.

Compensation under section 10A

12.The amount of the medical expenses incurred is supported by documents.  I would allow the applicant’s claim for medical expenses in the sum of $5,113.

Summary on quantum

13.In summary, the total compensation awarded is as follows:-

14.Interest is allowed at half judgment rate on the above sum from the date of the accident (5 January 2012) until this judgment and thereafter at judgment rate until payment in full.

Conclusion

15.Compensation is assessed at the sum of $90,064.  The respondent is to pay such sum together with interest as aforesaid.

16.I order that the respondent do pay the applicant the costs of the assessment of compensation, such costs to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr R Clement, of Massie & Clement, assigned by the Director of Legal Aid, for the applicant

The respondent was not represented and did not appear