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Tsui Wai Ho v Pride Glory Ltd Formerly T/a Ziti’s

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date23 May 2019
Neutral Citation[2019] HKDC 657
Judgement NumberDCPI1699/2016
CourtDistrict Court (Hong Kong)
Subject MatterPersonal Injuries Action
DCEC1791/2015 TSUI WAI HO v. PRIDE GLORY LTD formerly t/a ZITI’S

DCEC1791/2015 & DCPI 1699/2016

(Heard Together)

[2019] HKDC 657

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1791 OF 2015

____________

IN THE MATTER OF AN APPLICATION BETWEEN

TSUI WAI HO Applicant

and
PRIDE GLORY LIMITED
formerly trading as ZITI’S		 Respondent
____________

AND

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1699 OF 2016

________________________

____________
BETWEEN
TSUI WAI HO Plaintiff
and
PRIDE GLORY LIMITED
trading as ZITI’S		 Defendant

____________

Before: Deputy District Judge S.H. Lee in Court
Date of Hearing: 3 May 2019
Date of Assessment : 23 May 2019

--------------------------

ASSESSMENT

--------------------------

1. On 1 Sept 2013, Mr Tsui Wai Ho (Mr Tsui), the applicant in DCEC 1791/2015 (the EC Application) and the plaintiff in DCPI 1699/2016 (the PI Action), slipped and fell on a wet and slippery staircase at a restaurant in North Point (the Accident) operated by, and suffered personal injuries by accident arising out of and in the course of his employment with, Pride Glory Ltd (Pride Glory) i.e. the respondent in the EC Application and the defendant in the PI Action.

2. In Aug 2015, Mr Tsui brought the EC Application against Pride Glory seeking compensation under s.9, 10 & 10A of Employees’ Compensation Ordinance, Cap.282 (the Ordinance), for the Accident.

3. In June 2016, Mr Tsui also began the PI Action against Pride Glory to recover common law damages for his injuries sustained in the Accident.

4. Pride Glory failed to file any notice of intention to defend in the PI Action. On 4 Jan 2018, interlocutory judgment was entered against it for damages to be assessed.

5. On 15 June 2018, interlocutory judgment was by order of court also entered in the EC Application against Pride Glory for compensation to be assessed.

6. By orders of court dated 23 Jan 2019 and 1 Feb 2019, the assessment of damages (AOD) in the PI Action, and the assessment of compensation (AOC) in the EC Application, were set down in turn in the fixture list on the same date of 3 May 2019 and was ordered to be heard together.

7. Mr Tam Kai Wai of Messrs. B. Mak & Co. (Mr Tam) appeared for Mr Tsui at this hearing of AOD and of AOC before me.

8. Pride Glory, unrepresented in the EC Application and in the PI Action, did not appear before me. I am, however, satisfied on affidavits[1] that it had been duly notified of this hearing and I therefore proceeded with it in its absence.

9. Mr Tam called Mr Tsui as his only factual witness. Before I turn to Mr Tsui’s evidence, I start with his injuries and treatments as recorded on documents before me.

Injuries & treatments

10. According to treatment reports and records of Mr Tsui obtained from public hospitals and clinic, his injuries and treatments are as follows.

11. In the evening on the day of the Accident, Mr Tsui attended Accident & Emergency Department of Ruttonjee Hospital (RH).Physical examination showed tenderness, bruises and swollen left ankle. X-ray left ankle revealed fracture distal fibula.

12. On 2 Sept 2013, Mr Tsui was admitted to Department of Orthopedics and Traumatology of Pamela Youde Nethersole Eastern Hospital (PYNEH).On 4 Sept, he received an operation of open reduction and internal fixation of his fracture.Hewas discharged on 7 Sept.After discharge, he was followed-up on 7 occasions at out-patient clinic until 6 Aug 2015.

13. Mr Tsui was also referred to Physiotherapy Department (PH) of Queen Elizabeth Hospital (QEH) for physiotherapy and occupational therapy. He attended altogether a total of 13 sessions until 6 Dec 2013.

14. On 24 Jul 2015, Mr Tsui underwent an operation of removal of his left ankle implant at RH. For that, he was hospitalized at RH until 26 Jul 2015.

15. Treating doctors of Mr Tsui have issued a total of 145 days of sick leaves to him from 2Sept 2013 to 9 Jan 2014, 25 Sept 2014, 24 July 2015 to 6 Aug 2015 for his injuries in the Accident.

16. On Mr Tsui’s initial assessment at PH of QEH on 21 Oct 2013, mild swelling was noted over his left ankle region. Its range of movement was limited. He could walk unaided and independently. Ice therapy and magnetic therapy were offered to him for symptom relief. Mobilization exercise, strengthening exercise and physical training were prescribed to improve his physical ability.

17. Progressive strengthening exercise, balance training and physical training were later added. Mr Tsui’s condition improved gradually. By 22 Nov 2013, he reported 70% to 80% overall improvement with subsided left ankle pain and subjective walking tolerance of 45 minutes. No obvious acute inflammatory sign was noted at left ankle. Range of movement had improved. He could manage stairs in alternate steps and independently. He could squat down fully. He was independent in daily activities. On 6 Dec 2013, subjective and objective examinations revealed similar findings as before and he defaulted session thereafter.

18. According to the same reports and records, the left ankle fracture sustained by Mr Tsui united at about 12 weeks after operation and he gradually resumed normal walking one year after operation.His wound and fracture had healed well and he complained of minimal pain towards the end of his follow-ups. The range of movement was satisfactory. When he was last seen on 6 Aug 2015, the wound was well. There was no limitation to daily activities and he made a full recovery 2 years after the Accident.

Assessment under the Ordinance

19. On 9 Oct 2014, Mr Tsui was assessed for purpose of review by the Employees’ Compensation (Ordinary Assessment) Board. On 23 Oct 2014, a Certificate of Review of Assessment (Form 9) was issued certifying him suffering from “left ankle fracture resulting in pain, weakness and stiffness”. His period of absence from duty necessary as a result of his injuries was certified to be from 2 Sept 2013 to 9 Jan 2014 and 25 Sept 2014. His loss of earning capacity (LOEC) permanently so caused was assessed at 3%.

Mr Tsui’s evidence

20. Mr Tsui gave evidence that he was borned in Feb 1989. He studied up to Form 5 and worked in a social service organization (the NGO) as a clerk earning $12,000 odd/month before he joined Pride Glory. He was responsible for doing clerical duties, attending to users of outreach center, and maintaining supplies kept at camp site, of the NGO. He was not required to perform any strenuous exertion in this job.

21. Mr Tsui was admitted to a one-year full-time Project Yijin course to prepare for civil service vacancies (the Yijin Course) scheduled to start from Sept 2013 and he therefore resigned from the NGO in July 2013. He told me he planned to secure a part-time job in the evening and weekends to make some earnings while studying the Yijin Course in the daytime and weekdays.

22. Starting from 10 July 2013, Mr Tsui therefore joined and worked for Pride Glory as a part-time delivery worker at its North Point restaurant delivering pizza etc. on motorcycle in the evening and weekends. He so worked until he met the Accident on 1 Sept 2013.

23. Mr Tsui said he was paid an hourly rate of $45. There was no written employment contract. He was paid in cash weekly and no receipt was signed by him. Before the Accident, he said his average monthly pay was $4,365 i.e. $45 x 97 hours. He said he worked 4 hours per working day and about 4 to 5 days per week, depending on the business of the restaurant.

24. Mr Tsui gave evidence of his injuries and treatments in like details to para 11 to 15 above. In the box, he also gave details of the type of transports he took to and from PYNEH, RH and QEH for treatments and the estimated travel expenses so incurred by him.

25. After removal of implant, Mr Tsui said movement of his left leg had overall resumed normal. But, from time to time until today, he still feels mild pain in left leg, especially when there is a change of weather.

26. After, and due to, the Accident, Mr Tsui said he could not resume, and had never resumed, his job with Pride Glory. After discharge, he was put on crutches and could not ride motorcycle. He had to rest at home for about 1 month and he did not start studying the Yijin Course until Oct 2013.

27. By Dec 2013/Jan 2014, the restaurant, said Mr Tsui, had also been closed down by Pride Glory, which company was later deregistered in June 2015. The Court of First Instance restored it on application of his solicitors in Oct 2017.

28. In Aug 2014, Pride Glory, said Mr Tsui, was convicted of failing to take out insurance as required by s.40 of the Ordinance. But a director surnamed Szeto of Pride Glory had paid him a total of $27,470.40 by way of periodic payments.

29. Returning to his further studies, Mr Tsui said he managed to obtain government subsidy while studying the Yijin Course and did not find another part-time job than that of Pride Glory. He finished the Yijin Course in Aug 2014. He thereafter enrolled in a 2-year full-time higher diploma course of accounting in Sept 2014 and completed it in Aug 2016 with government subsidy.

30. He thereafter searched for full-time jobs and became a postman in Oct 2016, earning $14,000 odd/month. He worked for about 9 months until July 2017 as follows. He worked for 2 weeks in post office counters. He worked for about another 2 months dealing with postal packages in a warehouse. For as long as 6 months, he worked outdoor delivering mails to residents of Wah Fu Estate. He had to walk upslope and downslope, and downstairs carrying postal bags containing mails, as many as 6 days a week. He said he found his injured left ankle painful after work...

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