Lin Qinghua v. Resan Development Ltd

DCEC 1017/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1017 OF 2014

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JUDGMENT

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1.This is a judgment on liability in relation to the applicant’s claim against the respondent for employees’ compensation under the Employees’ Compensation Ordinance, Cap. 282 arising out of an alleged accident on 8 April 2013, the parties having agreed on quantum.

2.The applicant was employed by the respondent between 22 March and 12 April 2013 as a beauty and message therapist and was assigned to work in a beauty shop in Ma On Shan (“Shop”). On 8 April 2013, while on duty, the applicant allegedly sprained both of her wrists while lifting and reversing a distilled water bottle in order to place the same onto the water dispensing machine inside the reception area of the Shop.  Save admitting that the applicant was its employee who did attend work on 8 April 2013, the respondent denies that the applicant had sustained any injury by accident on 8 April 2013 at all.

EVIDENCE

The Applicant

3.The applicant testified on her own behalf and adopted as her evidence in chief her witness statement filed herein without much elaboration or clarification.  For reasons that will become obvious, a fuller account of her story is warranted. 

4.On 8 April 2013 around 3 pm, she was inside the Shop where the reception counter was located.  Beside the reception counter was a distilled water dispensing machine which was placed on a table top about 0.9 metre high so that the water dispensing machine was about 1.5 metres high.  As the machine was running out of water, Selina the receptionist (“Selina”) asked the applicant to help replacing the emptied bottle.  The applicant complied.  Having removed the empty bottle from the machine, the applicant lifted a replacement bottle of distilled water of unknown weight with her left hand supporting the bottom thereof and her right hand holding onto the bottle cap.  When reversing the bottle in order to place the same onto the water dispensing machine, she sprained both of her wrists (“Accident”), with the condition of the right wrist being more serious resulting in numbness and swelling.  The numbness had been so severe that she could not even walk. 

5.The applicant was not sure if Selina was aware of her injury as aforesaid.  Given the condition of her right wrist, she reported the accident to her boss Ms Cheng Lai Yee (“Ms Cheng”) who however made no response.  After applying to her right wrist some ointment bought from a Manning Store downstairs, the applicant endured the pain and continued with her work as there remained 3 to 4 bookings for the day.  She finished work at 9 pm that day.  When back at home, she felt more pain and had to seek help from a neighbour (whose name was not known to her) who helped apply ointment to her right wrist.  She managed to fall asleep that night but was awoken by pain in early morning.

6.She returned to work the next day (9 April 2013) when she had 3 bookings.  She again reported her condition to Ms Cheng who again made no response.  She had no choice but to continue to work.  On the same day, Ms Cheng instructed her to massage another beauty therapist Ah King (“Ah King”).  Ah King was not satisfied with the massage as the applicant could only use her left hand due to the weakness in her right hand. 

7.Being unaware of the seriousness of her injury, the applicant returned to work as usual while the pain and swelling in her right wrist persisted.  On 12 April 2013, a dispute arose between her and Ms Cheng regarding a certain sales commission and she was dismissed right away.

8.Thereafter she stayed home for recuperation until 19 April 2013 when she could no longer endure the pain in the right wrist and began to seek treatment from a bonesetter Mr Chan Ho Ming (“Bonesetter”).  From 29 May 2013 onward, she began to seek treatment from various public clinics and was seen by a different doctor each time all of whom failed to conduct a detailed examination of her right wrist.  She also underwent physiotherapy for about 4 months from September 2013 and has been seeking treatment from Chinese herbalists in the Mainland. 

9.After having received treatment to her right wrist for over a year, she found that her left wrist began to develop a similar problem and the pain would radiate to other parts of her body.

10.Under cross-examination, the applicant denied that the English name “Amy” appearing in the respondent’s staff attendance records refers to her and maintained she was known only by the name “Ah Ching” at the Shop.

Tong Pui Wah

11.Ms Tong Pui Wah (“Ms Tong”) was another beauty therapist under the employ of the respondent until June this year when the respondent failed to secure a new lease for the Shop. Ms Tong only knew the applicant by the name “Amy” and did not even know her surname.  On 12 April 2013, Ms Tong heard the applicant argued with Ms Cheng on a certain sales commission and thereafter tendered resignation amidst anger.  The applicant never mentioned to her about the Accident.

Cheng Lai Yee

12.She is a director of the respondent and the head of the Shop.  She denied that the applicant had reported the Accident to her on 8 April 2013.  She gave details of the dispute on commissions leading to the applicant’s resignation on 12 April 2013. 

13.In the afternoon of 8 May 2013, the applicant returned to the Shop to inspect the respondent’s attendance records for calculating commissions.  On that occasion, the applicant claimed to have suffered injury to her hand while practising body massage on Ah King and demanded that Ms Cheng should accompany her to see a bonesetter and pay compensation.  As the applicant was agitated and refused to leave, Ms Cheng called the police and summoned her husband to the scene.

14.Towards the end of July 2013, the respondent received a notification from the Labour Department when the respondent first came to know about the applicant’s story about her injury sustained while lifting a bottle of water as aforesaid.  On examining Selina’s attendance record for 8 April 2013, Ms Cheng found that Selina was on leave on 8 April 2013 and could not have asked the applicant to replenish distilled water supply as alleged. 

15.Furthermore, between 9 and 11 April 2013, the applicant performed well without showing any sign of feeling unwell or reporting any discomfort of the body to Ms Cheng.

16.In her oral testimony, Ms Cheng confirmed that the name “Amy” in the respondent’s attendance records adduced herein refers to the applicant.  During her visit to the shop on 8 May 2013, the applicant kept saying that she injured one of her hands when massaging Ah King but Ms Cheng could not recall which hand. 

Ah King

17.Ah King remembered having seen the applicant apply medication to her hand or hands for wrist pain on the very first day the latter started to work at the Shop and before any job was assigned to her.  Subsequently, she had seen the applicant applying her own medication to her hands although the latter said nothing about her wrists.

18.On 12 April 2013, Ah King witnessed the argument between the applicant and Ms Cheng about a certain sales commission whereupon the applicant agitatedly tendered her resignation to Ms Cheng.

19.Ah King had never heard the applicant mentioning about any sprain injury to her wrists while replenishing distilled water supply. 

20.In the afternoon of 8 May 2013, Ah King was serving a customer when the applicant returned to the Shop.  Subsequently, Selina and Ms Cheng told her about the applicant’s allegation about injury to the hands while practising massage on her.  Ah King confirmed that Ms Cheng had once instructed the applicant to practise massaging on her but the applicant had never mentioned anything about injuring her hands during the massaging.  Nor did Ah King observe anything wrong when the applicant practiced massaging on her.

Suen Wing Chung

21.He is one of the shareholders of the respondent.  His only involvement was his attendance at the Shop around 4 pm on 8 May 2013 when he witnessed the argument between the applicant and Ms Cheng during which the former repeatedly claimed to have sprained her hand(s) while practising massage on Ah King.  The applicant did not mention anything about replenishing distilled water supply.

DISCUSSION

22.This case turns entirely on credibility of witnesses and the burden falls squarely on the applicant to prove liability on the respondent’s part for her alleged injury at work.

23.By way of general observation, I find each and every witness who testified for the respondent to be forthcoming and straightforward in giving an account of their side of the story.  Naturally none of them could say if the Accident did or did not take place as Selina was the only person present when the applicant allegedly sprained her wrists.  According to the respondent, Selina had left the employment with the respondent and could not be located.  I have no reason to believe otherwise.  Where the evidence of the respondent’s witnesses having a material bearing on the issue of liability conflicts with that of the applicant, I prefer the former.   

24.On the contrary, the applicant was by no means forthcoming in answering questions under cross-examination and hardly impressed me as an honest and reliable witness.  She mechanically disagreed with almost all questions asked by the respondent’s counsel even when a simple yes or no answer was all that was required.  When questioned about the many inconsistencies, some being glaring ones, between her allegations and documentary evidence, she often would ponder for a while before either smiling back at counsel without offering any explanation or simply saying she disagreed without specifying what she disagreed with or why she disagreed.  Where she attempted to explain such inconsistencies, her answers hardly lent her credibility, as one will see in the following.  

25.Returning to my analysis of the evidence, a prominent feature of the applicant’s own evidence is the abundance of inconsistencies both as to the cause of her alleged injury and the injury she actually sustained.   

26.Regarding the cause of the applicant’s alleged injury, a medical report from the West Kowloon General Out Patient Clinic (“West Kowloon Clinic”) dated 18 February 2015 (“WKC Report”) reveals that the applicant complained of left wrist pain after “doing massage for a client on 1 April 2013”.  During the consultation on 17 July 2013, however, the applicant claimed to have “left wrist sprain when carried a bottle of water on 8 April 2013 (instead of 10 April 2013)”.[1]   Since then, though, the applicant has maintained the latter version as her pleaded case (save, as will be seen, a further change of her complaint to one of bilateral wrist pain later on). 

27.The applicant’s testimony in court went no way to dispel the doubt as to how her alleged injury (to either wrist) came about.

28.It will be remembered that Ms Cheng testified to the fact that when first mentioning her wrist injury, the applicant said she incurred the same when performing body massage on Ah King. This accords with what the WKC Report recorded as the applicant’s own account of her injury during the first consultation.  However, according to the applicant’s own witness statement, she performed massage for Ah King only on 9 April 2013 and not 8 April 2013.  Interestingly, the attendance record of Ah King produced by the respondent, the authenticity of which was not challenged, shows Ah King was off duty on 9 April 2013.

29.While in court, the applicant maintained that she sprained her wrists while replenishing distilled water supply at the request of Selina.  This story of hers, however, flies in the face of objective evidence.  As revealed by the punch card used by Selina for clocking in and out (“Punch Card”), the authenticity of which was not challenged, Selina was off duty on 8 April 2013 and there is no evidence to suggest she nonetheless returned to work that day.  That Selina was off work on 8 April 2013 is further evidenced by the respondent’s booking record of which the column assigned to Selina has been crossed out with the word “Off” written thereon, which can only mean Selina was off duty.  The authenticity of this record is again unchallenged.  

30.To this the applicant had no answer during cross-examination other than vaguely disputing the veracity of the contents of the Punch Card. 

31.I had examined the original copy of the said attendance records.   Suffice it to say I could see no sign of the same having been tempered with insofar as they point to Selina being off work on 8 April 2013.    

32.The applicant’s story is further contradicted by the favourable comments of the customers she served on the day of the Accident.  According to the customer service record for 8 April 2013 used by the respondent to calculate commissions due to the applicant, a Miss Leung and a Miss Chow received body massage by the applicant in the afternoon of 8 April 2013 for 60 minutes and 110 minutes respectively. Both found the applicant’s performance to be either satisfactory or very satisfactory.  This hardly sits comfortably with the applicant’s allegation about the degree of wrist pain she was enduring while serving customers during the rest of the day, if she was in pain at all. 

33.As Mr Gidwani, counsel for the respondent, submits, and I agree, the applicant’s pleaded case about the cause of her alleged injury is wholly unsustainable.

34.The applicant’s story as to what exactly was her injury is equally, if not more, untenable.  It will be remembered that the applicant claimed to have sprained both of her wrists in the Accident.  Throughout her witness statement, however, she keeps talking about the injury to and condition of her right wrist while her left wrist is no more than cursorily mentioned. 

35.According to her own medical records, however, she complained only about pain in her left wrist during her first visit on 29 May 2013 and, more pertinently, X-ray was ordered only for her left wrist. 

36.Indeed, the physiotherapy she received between September and November 2013 was confined to the left wrist.  A physiotherapy report dated 11 February 2015 reveals that the applicant was presented with mild left wrist pain during the initial visit and was discharged from physiotherapy after 9 sessions of treatment as her condition improved. 

37.Meanwhile, the applicant attended Shek Kip Mei general outpatient clinic on 23 July 2013, again for her left wrist problem.  During her episodic visits to the clinic between July 2013 and August 2014, she also alleged to have pain over her right wrist, both hands and shoulders though. 

38.According to the WKC Report, the applicant first complained about bilateral wrist pain instead of mere left wrist pain during the visit on 29 April 2014, that is, more than a year after the Accident and about one month before the present claim for employees’ compensation was filed.

39.In this connection, a consultation note of Dr Lee Wing Yi (“Dr Lee”) dated 13 August 2014 is very telling. There it is recorded that the applicant claimed to have bilateral wrist sprain when lifting a large bottle of distilled water and was “very agitated when (Dr Lee) try to clarify her symptom and mechanism of injury, scolded (Dr Lee) and said all doctors has wrongly documented her problem starting from the beginning.”  Upon reviewing past medical notes, however, Dr Lee recorded as thus:

“notes…all along documented L wrist injury,

on 29/4/2014: Patient claimed that her IOD is a bilateral wrist injury”

40.Interestingly enough, even the police record points to the applicant’s initial complaint being confined to the left wrist.  According to a letter from the police to Ms Cheng dated 12 August 2013, the Ma On Shan police station received a call for assistance in the afternoon of 8 May 2013 and it was reported, inter alia, that an ex-employee (the applicant) had complained about injury to her left wrist while at work in March to April 2013.

41.During cross-examination, the applicant was adamant that she reported pain in both wrists to the doctor every time but the doctor kept looking at the computer (monitor) without examining her hands.  In this regard, I observe that according to the applicant herself as well as the medical reports from the Hospital Authority, she had been attended to by various doctors instead of one single doctor since her first consultation.  By no stretch of the imagination can one seriously suggest each and every attending doctor had ignored or mistaken the applicant’s complaint before 29 April 2014.   

42.As indicated earlier, the applicant’s occasional attempts to clarify inconsistencies served more to discredit herself than to advance her case.  I need only give a few examples to demonstrate this.

43.The applicant was asked, as one would expect, to explain why no X-ray was ordered for her right wrist if she had actually complained about bilateral wrist injury during her first visit to the West Kowloon Clinic.  Having first dodged the question, the applicant insisted upon further questioning that X-ray was performed on her both hands.  It was not until counsel drew her attention to her own medical records the accuracy of which was not challenged by her legal representative when the applicant reluctantly admitted that no X-ray was taken on her right hand. 

44.Immediately afterwards, however, the applicant attempted to salvage the position by asserting that she had challenged the doctor for not prescribing X-ray for her right hand as well. When asked further, she said for the very first time that she saw a chit on which the doctor wrote the Chinese character for “left” (which I took the applicant to mean the doctor’s prescription for X-ray) and asked the doctor why only one hand was mentioned.  Counsel did not bother to ask about the doctor’s response before moving to another topic and I see no reason why he should.  Had the applicant actually seen a doctor’s prescription for X-ray prepared in Chinese (which is hard enough to believe) and pointed out any omission on the doctor’s part, there is simply no reason for the doctor not to prescribe X-ray for her right hand as well, especially when it was her first visit to the clinic. 

45.As said, the applicant underwent 9 sessions of physiotherapy for her left wrist.  Under cross-examination, the applicant insisted that she had received physiotherapy for both wrists.  This time she fought against all odds and went so far as to say the physiotherapy report was inaccurate.  This assertion of the applicant need only be stated to be rejected as unbelievable when the relevant physiotherapy report gives a fairly comprehensive account of the treatment administered to the applicant’s left wrist during the 9 sessions of physiotherapy.

46.The applicant further discredited herself by producing on the first day of trial a receipt dated 17 October 2015 purportedly obtained from the Bonesetter.  For one thing, no explanation whatsoever was offered by the applicant as to why this receipt was obtained only 3 days before trial.  For another, the receipt states that the applicant attended the Bonesetter 4 times between 8 and 11 April 2013 for sprain injury to both wrists.  This stands in stark contrast with the applicant’s own witness statement adopted as her evidence in chief which says the applicant first visited the Bonesetter for her right wrist pain on 19 April 2013.  When challenged with these inconsistencies, the applicant could offer no explanation other than smiling back at counsel without offering any answer.  To all further quotations from her very own statement on this topic, she simply returned the same answer: “I disagree”.  I therefore attach no weight whatsoever to the belatedly produced receipt from the Bonesetter.

47.Miss Lee, counsel for the applicant, submitted that the applicant had been consistent about the cause of her injury, relying heavily on the latter’s Form 2 and declaration submitted to the Labour Department where she referred to sprain injury to both wrists.  This submission can hardly improve the applicant’s case.  For one thing, while the Form 2 is dated 8 April 2013, the Labour Department acknowledged receipt thereof only on 24 July 2013.  For another, in both the Form 2 and the declaration (dated 23 July 2013), the applicant did state the condition of her left (instead of right) wrist to be more serious and that she sought treatment from a bonesetter on 19 April 2013 (instead of 8 to 11 April 2013).   Furthermore, according to the WKC Report, when the applicant changed her story about the cause of her injury during her visit to the West Kowloon Clinic on 17 July 2013, she merely claimed to have left wrist sprain.  It was not until 29 April 2014 when she first claimed to have bilateral wrist pain instead of mere left wrist pain since injury.  All in all, there is no way one can explain away the inconsistencies in the applicant’s story.

48.The culminating effect of all these can lead only to one conclusion, that is, the applicant’s story about her injury to the wrist(s) on 8 April 2013 is not to be believed.  It may well be that the applicant has been experiencing wrist pain in either hand since some time in the past but I reject her claim insofar as she attributes the same to the respondent.

CONCLUSION

49.In light of the above, I dismiss the application.  There be an order nisi that the applicant do pay the respondent’s costs to be taxed if not agreed with a certificate for one counsel.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

50.Lastly, I thank counsel for their assistance. 

Miss Amanda Lee, instructed by B. Mak & Co., assigned by the Director of Legal Aid, for the applicant    

Mr Victor Gidwani and Miss Sara Li, instructed by Howse Williams Bowers for the respondent