Choy Chun Sing v. Wong Kwok Chun

DCEC 420/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 420 OF 2013

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JUDGMENT

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Introduction

1.This is the trial of an employees’ compensation application.  The applicant claims that he sprained his back in an accident which took place on 30 May 2011 while he was in the employment of the respondent.

2.The respondent disputes liability on the ground that the alleged accident did not take place.

3.At trial, the parties were able to agree on the amount of compensation payable under the Employees’ Compensation Ordinance, Cap 282, in the event that liability is established.

Factual background

4.The following matters are common ground or not in dispute:-

(a) The applicant was employed by the respondent from 1 March to 31 May 2011.  The applicant was then 55 years old.

(b) The respondent carried on the business of transporting construction materials and clearing off wastes at construction sites.  He was assisted in the business by his wife, Madam Zheng Xiufang. Neither the respondent nor his wife held a driving licence. The respondent would from time to time employ casual workers, including drivers. 

(c) The applicant was employed as a driver and manual labourer.  His duties included driving the respondent’s truck for transporting construction materials and wastes to different sites and manually moving the materials and wastes at the sites, as directed by the respondent.

(d) On the day of the alleged accident and the following day, ie, 30 and 31 May 2011, the respondent, his wife, the applicant and another worker who was identified in the evidence as Mr Tam worked together.

The alleged accident

5.The applicant’s case is as follows.

6.On 28 May 2011, the applicant informed the respondent that he would resign but would stay on till 12 June 2011.  In his oral evidence, he said that it was because he found the job demanding and would like to take a short break from work.

7.On 30 May 2011, while he was moving some heavy bags at a site in Tsing Yi, he sprained his back.  He was in a lot of pain and he told Mr Tam, who was nearby, about it.  The applicant then told the respondent’s wife about his injury and said he could not carry on with the work. The respondent’s wife asked him to put on some medicated oil to ease the pain and take some rest first.  After some rest, the applicant told the respondent’s wife that his back still hurt and asked her to find another driver.  However, the wife replied that the applicant should carry on with the work and should at least work for one more day.

8.On 31 May 2011, the applicant felt intense pain in his low back and therefore called the respondent’s wife telling her that he needed to take the day off.  The wife said that in that case the applicant could just drive and did not need to do the manual work.  The applicant agreed.  While the four of them were on their way to another site, the pain became so intolerable that the applicant had to stop the truck by the roadside.  At that point, the respondent and his wife told the applicant that he would only need to finish that day’s work as they had found a replacement driver who could start work the following day.  The applicant finished work at about 5pm that day.  He was given his salary and an additional sum of $500 for him to see a doctor.

9.On 1 June 2011, the applicant went to see a Chinese bonesetter.  He made a second visit on 3 June 2011.  Still feeling painful, the applicant went to the A&E Department at Tseung Kwan O Hospital on 5 June 2011.  Physical examination and x-ray of the spine was done.  The provisional diagnosis was stated to be “Back sprain”.  The A&E doctor granted sick leave for five days.   I shall return to the further medical treatments received by the applicant in the next section.

10.After the A&E visit, and on the same day, the applicant telephoned the respondent telling him about his injury and the diagnosis.  The respondent asked the applicant to call his wife instead.  In his telephone conversation with the wife, the wife said she could refer the applicant to a Chinese medical practitioner but the applicant said he had already tried and it was no use.  It was then agreed between the applicant and the wife that they should meet up on the following Sunday so that the applicant could pass on his sick leave certificates to the wife.  Then on Saturday, when the applicant tried to call the wife to confirm the appointment, there was no answer.  The applicant tried afterwards to call both the respondent and the wife.  But neither answered his calls.

11.On 18 June 2011, having taken rest for about three weeks, the applicant tried to work as a driver for a contractor called Hing Lung.  However, after working for about three hours, he could not carry on due to the injury.  Then in late July, he tried once again to work as a driver.  But, same as last time, he could not continue after driving for a few hours.  Since then, he has not worked again.  In his oral evidence, the applicant said that he even has difficulty with his walking.

The medical treatments

12.After the visit on 5 June 2011, the applicant made a second visit to the A&E Department of Tseung Kwan O Hospital on 10 June 2011.  His complaint was persistent back pain.  Further sick leave was granted.  The applicant then attended Kwun Tong Jockey Club Health Centre on 15 June 2011.  He also complained of low back pain.  Sick leave was granted until 17 June 2011.  From June to September of the following year, the applicant paid further visits to the A&E Department of Tseung Kwan O Hospital complaining of persistent back pain.  He was referred for physiotherapy treatment at the same hospital in late 2012.  In 2013, he continued to pay further visits at the Tseung Kwan O Hospital.

13.In these proceedings, the applicant has disclosed a number of medical reports:-

(a) In the report made by the Chinese bonesetter, it was stated that the applicant attended the clinic in the morning of 1 June 2011 and that he recounted how he had sprained his back when he was moving some heavy bags whilst at work on 30 May 2011.

(b) In the report made by the A&E Department of Tseung Kwan O Hospital in respect of the applicant’s first visit on 5 June 2011, it was stated, amongst other things, that:

“This patient had an injury-on-duty on 30/5/2011. He sprained his back while lifting an heavy object. He was seen by a bone-setter. He complained of persistent back pain. …”

(c) In the report made by the Kwun Tong Jockey Club Health Centre, it was stated that the applicant “had history of sprain back injury due to taking heavy load during working on 30/5/2011”.

14.By an earlier order of the court, the reports of the government hospitals as to the treatment and care of the applicant were to be adduced as agreed evidence without calling the makers.

15.In mid-2013, the applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board.   The assessment as recorded in Form 7 was that the applicant suffered from sprain of back resulting in right sciatica pain.  The loss of earning capacity permanently caused by the injury was assessed to be 3%.  There is no appeal from the assessment.

The respondent’s version of events

16.The respondent gave a completely different account of what happened in late May to June 2011.

17.The respondent’s case is that the applicant gave notice to quit on about 18 May 2011, saying that he would continue to work for another 20 days or so.  He did not really explain why he wanted to leave.  The respondent asked whether he wanted a pay rise but the applicant made no positive reply.  The respondent managed to find a replacement driver about a week later who could start work any time.

18.On 30 and 31 May 2011, the applicant worked as normal.  There was no complaint or mention of any injury at all.  At about 5 to 6 pm, the applicant, the respondent and his wife returned to the car park after the day’s work.  The applicant then told them that he would not come back to work starting from the following day.  The respondent therefore paid him his salary and also gave him $500 as tea money.  The respondent said at trial that every month or so he would give a few hundred dollars each to his workers, including the applicant, as tea money to show appreciation of their work.

19.In early June 2011, the respondent received a call from the applicant.  As he told the applicant that he was in fact in hospital receiving some treatment, the applicant did not say why he called and hung up. 

20.It turned out that the applicant then called the respondent’s wife.  In that conversation, the applicant said that he was injured whilst at work on 30 May 2011 and that he was given sick leave.  The wife suggested that in that case the applicant should go and see a doctor whom she knew was very good.  The applicant declined and said that the respondent should pay him compensation under the labour law and if the respondent did not pay up, the applicant would report it to the Labour Department.  The applicant added that he was very familiar with labour regulations and knew that the respondent had not arranged for employees’ insurance cover for him. 

21.The wife became concerned as she had not known about the applicant’s injury.  She asked the applicant not to harass her and her husband.  The applicant then requested compensation in the sum of $10,000. When the wife said they did not have that much money, the applicant then suggested that $5,000 would also do. 

22.After that conversation, the respondent and the wife did not hear back from the applicant.  They did not attempt to call to speak to him either.

23.Then in mid-June, the wife bumped into the applicant in Kowloon and at that time he was moving some materials on to a truck with the words “Hing Lung” on it.  In late July, the respondent and the wife again saw the applicant in a shop in Kowloon.  He told them that he was working as a driver for a contractor called “Pang Lee”.

24.Later in 2011, the respondent was informed of the applicant’s claim.  He did not try to speak to the applicant directly since he had been told that it would not be appropriate to do so once a claim was made.

Issues in dispute

25.The primary issue on liability is this – did the accident take place as alleged by the applicant?  The parties each put forward an opposite account of what happened on 30 and 31 May 2011 and what was said between the applicant and the wife in the telephone conversation in early June 2011. 

26.Since there is no appeal from the Form 7 assessment, the assessment is final and binding on the parties:  see Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413 at 419C-I.  Mr Kam Cheung, counsel for the respondent, accepted as a fact that the applicant suffered from the low back injury as described in Form 7.  However, he submitted that the injury might have been a pre-existing condition or that the applicant was injured whilst not at work.  In these situations, the respondent is not liable to pay any compensation.  It is for the applicant to discharge the burden to demonstrate, on a balance of probabilities, that the alleged accident did take place.

Inherent plausibility of the applicant’s case

27.The main plank of the submissions of Mr Stephen Fong, counsel for the applicant, is that the applicant’s case is well supported by contemporaneous documents.  He primarily relied on the medical report made by the Chinese bonesetter in respect of the consultation on 1 June 2011, just two days after the accident, and also the report made by the A&E Department at Tseung Kwan O Hospital in respect of the visit on 5 June 2011.

28.As noted in §13 above, it was recorded in those reports that the applicant told the doctors shortly after the accident that he had injured his back while he was at work on 30 May 2011.   These reports, submitted Mr Fong, are contemporaneous documents which fully corroborate the applicant’s case.

29.In reply to this, Mr Cheung said that Mr Fong’s submission is wrong as a matter of principle and that what the applicant told the doctors after the accident are self-serving statements that have no probative value. 

30.Mr Cheung relied on the following passage in Choi Pak Sum v Lam Lung Ki HCPI 529/2008, 3 December 2010, a personal injuries claim arising out of a slip and fall accident:-

“… after she discharged herself from Kwong Wah Hospital against medical advice, the Plaintiff went to Mong Kok Police Station to make a report before returning to her home in Yuen Long. In this report, it was recorded that she slipped down near the cashier counter of the restaurant, that she made the report for record purpose and that she would take civil action against the restaurant. That was six hours after the accident. Mr Law sought to rely on that report as a contemporaneous statement. A contemporaneous statement is a statement made at or near the time of a relevant event and under circumstances which make it more likely than not to be true. The Plaintiff made the report expressly for the purpose of a civil claim. Her motive was clear and there was time for her to make up a story. Though made within six hours of the relevant event, it was a self serving statement. It has lost the character of and value as a contemporaneous statement. I give no weight to her statement in that report.” (at §26)

31.I do not consider that Mr Fong’s reliance on the medical reports as corroborating contemporaneous documents is wrong in principle.  In my view, the medical reports recorded what the applicant said about his injury very shortly after the alleged accident.  Unlike the statement made in Choi Pak Sum which was expressly made for record purpose, with a potential civil claim in mind, here, the applicant’s statements were made in the course of medical consultations while he was describing his symptoms to the doctors.  The present situation is clearly distinguishable from the authority relied upon by the respondent.

32.That said, however, I accept that when evaluating the credibility of the applicant’s case and when assessing the weight to be given to those statements in the medical reports in this evaluation process, the court should be mindful that they were statements made by the applicant himself, rather than by some independent third party. 

33.On the whole, I consider that the applicant’s case of the alleged accident is inherently and reasonably plausible.  In coming to this view, I have taken into account the following matters (though I should add that none of them on its own is conclusive):-

(a) The respondent confirmed in both his written and oral evidence that the applicant had never mentioned any injury to him and the respondent had never noticed that the applicant was suffering from any injury during the three months when the applicant worked for him.

(b) The respondent’s wife gave evidence to similar effect, except that she added that the applicant did from time to time make general complaints of pain but he never mentioned about the serious low back injury.

(c) The undisputed fact is that the applicant did suffer from low back injury when he underwent the Form 7 assessment.

(d) On 1 June 2011, ie, two days after the alleged accident, the applicant told the Chinese bonesetter about the accident.

(e) On 5 June 2011, ie, six days after the alleged accident, the applicant told the A&E doctor about the accident.

34.When viewed against these matters, the applicant’s case that his injury was caused by the accident on 30 May 2011 is consistent, coherent and reasonably plausible.

Queries raised on the applicant’s case

35.At trial, Mr Cheung tried to challenge the credibility of the applicant’s case in a number of ways.

36.First, Mr Cheung questioned why the applicant did not go to see a doctor immediately after the alleged accident, eg, in the evening of 30 May 2011, given that the applicant’s evidence is that he was in great pain.  Instead, he delayed seeking medical treatment until two days later.   This, submitted Mr Cheung, casts serious doubt on the credibility of the alleged accident.  To this, the applicant’s reply was that when he went home in the evening of 30 May 2011, it was already about 7pm and he felt very tired and his wife helped to put on some medicated oil for him.  And, for the following evening, by the time he went home after the day’s work, he was tired and again his wife helped by applying some oil on his low back.  Since the pain did not go away, he went to the Chinese bonesetter on 1 June when he no longer needed to go back to work.  I find the explanation a reasonable and plausible one.

37.Secondly, Mr Cheung questioned why the applicant needed and obtained the sick leave certificates from 1 June 2011 onwards as by then he had already quitted his job.  Mr Cheung further submitted that the applicant’s motive behind seeking all the medical treatments was to get sick leave compensation.  The applicant’s reply was a simple one.  When being cross-examined on this, he said that he went to see the doctors and explained why he got injured and the doctors then gave him the sick leave certificates.  The reply, in my view, makes common sense.

38.Thirdly, Mr Cheung questioned the extent of the injury.  He argued that the subjective pain described by the applicant, namely, that he even had difficulty walking properly, does not match with the objective findings by the doctors.  Mr Cheung pointed out that none of the treating doctors recommended any follow-up treatment and in one of the sick leave certificates given in June 2011, the doctor did not fill in the pre-printed statement that the applicant should avoid heavy physical duty for a period of time.  During closing submissions, Mr Fong pointed out that the doctors’ diagnosis on the whole was consistent with the applicant’s complaints, eg, the location of the injury, and in any event how painful one feels is always a matter of degree. It is also not correct for Mr Cheung to suggest that the pain was not as severe as described by the applicant since he was in fact referred for physiotherapy treatment in 2012.  I think there is much force in Mr Fong’s counter-argument.

39.Fourthly, Mr Cheung remarked on the remarkable coincidence that on the only two occasions which the applicant admitted he was working for other contractors after the alleged accident, he happened to be seen by the respondent or his wife.  Mr Cheung submitted that the chances are that the applicant was fully capable of working and his evidence that he had worked on those two occasions only is highly questionable.  The thrust of this submission is that there is too much coincidence so as to render the applicant’s allegation unbelievable.  While I accept that I should take into account the fact of such coincidence in my overall evaluation of the applicant’s credibility, I do not find that on its own it casts any serious doubt on the applicant.

40.In conclusion, Mr Cheung invited the court to find that the alleged accident in fact did not take place.  The statements he made to the doctors regarding the accident were all part of a premeditated scheme of the applicant whose ulterior motive was to get some compensation from the respondent on the pretext of a work accident which had never taken place.  Mr Fong countered that by asking the question – if the alleged accident was a fabrication by the applicant and his statements made to the doctors in early June 2011 were lies, why wouldn’t the applicant have also told lies to the respondent on 30 or 31 May 2011 and feigned injury whilst at work?  I agree with Mr Fong’s argument.  It does not accord well with inherent probabilities that if the applicant had been of such a scheming personality, he would have chosen to tell lies not on the day of the alleged accident but only afterwards.

41.All the queries raised by the respondent have been quite satisfactorily answered by the applicant.  In my view, none of these challenges raised by the respondent cast any serious doubt on the credibility of the applicant’s case as a whole.

Inconsistencies in the respondent’s evidence

42.In contrast with the applicant’s case which is coherent and consistent, there are a few inexplicable discrepancies or inconsistencies in the evidence adduced by the respondent.  I would highlight the following.

43.First, when asked whether he made any attempt to speak to Mr Tam about the alleged accident afterwards (given that Mr Tam was working on the same site on 30 May 2011), the respondent said in cross-examination that Mr Tam quitted some time later and that he did try to contact him afterwards and even went to Mr Tam’s home village in Mainland China to look for Mr Tam but his efforts were in vain.

44.The respondent’s wife gave evidence on the same issue.  She was not sure when Mr Tam quitted the job but it should be around the end of 2011.  When asked if she made enquiries with Mr Tam immediately after her conversation with the applicant in early June 2011, ie, when Mr Tam was still working for them, the wife initially said, without any qualification, that she did not.  In answer to Mr Fong’s follow-up question, she said that the respondent did not go back to the home village to look for Mr Tam.  She said that she did not know that the respondent took steps to find Mr Tam as she really did not know too much about what her husband did in general. 

45.Then when pressed further on this point, the wife said that she did speak to Mr Tam after the telephone conversation and Mr Tam told her that he knew nothing about the alleged accident.  In view of the inconsistencies in her answers, she was asked the question again and her last answer was that she could not now recall whether she had in fact asked Mr Tam or not because of the long lapse of time.

46.The inconsistency between the evidence of the respondent and his wife as regards Mr Tam is hard to understand.  Further, the wife’s inconsistent answers on whether she did speak to Mr Tam in June 2011 are equally difficult to comprehend.  It is true that the event took place almost four years ago.  But given the concern of the wife at that time, ie, the threat made by the applicant over the phone, it is only logical to expect that she would have made enquiries with Mr Tam who was working with them on the day of the alleged accident.  She might have asked (which would have been a logical thing to do) or she might not have asked (perhaps it did not occur to her that she could ask).  Either way, whether she has asked or not is something that she should be able to recall.  I find her testimony in this regard to be unreliable.

47.Secondly, when the respondent was cross-examined on the allegation that the applicant worked for Hing Lung in June 2011, the respondent said that the boss of Hing Lung had previously told him that the applicant had in fact worked for him for about ten days.  This was a new allegation, not mentioned in the witness statement of either the respondent or the wife.  The respondent then explained that he had tried to ask the boss to testify for him at trial but his request was turned down.  One may well understand the boss’s reluctance to testify but there is really no good reason for withholding this piece of evidence from the respondent’s own written statement.  I find it difficult to accept the late revelation of the evidence.

Findings on liability

48.Having weighed the inherent probabilities and plausibility of the parties’ cases and considered the consistency of their evidence as a whole, I find, on a balance of probabilities, that the applicant’s account of the alleged accident and the events which took place in May to July 2011 is a truthful account.  Where the respondent’s account of events is in conflict with it, it must be rejected.

49.The applicant is therefore entitled to compensation in respect of his low back injury under the Ordinance.

Quantum

50.It is common ground that the monthly earnings of the applicant should be calculated in a way which is most favourable to him pursuant to section 11(1)(b) of the Ordinance.  The agreed figure is $12,564.50.  This is based on a daily wage of $650 and the number of working days per month of 19.33 days (the latter figure being the three-month average number).

51.The compensation payable under section 9 of the Ordinance is agreed to be $27,139.32 (i.e., $12,564.50 x 72 x 3%).

52.The compensation payable under section 10 of the Ordinance is agreed to be $34,175.44 (i.e., $12,564.50 x 102/30 x 4/5).  (While the period of absence certified in Form 7 is 109 days, the applicant elected not to seek leave to claim compensation for the last seven days of sick leave which fall outside of the 24-month period prescribed by section 10(5) of the Ordinance.)

53.Against the above sums, it is agreed that the applicant will have to give credit for the sum of $500 already received by him.

54.In summary, the amount due to the applicant, as agreed, is:-

Section 9	$27,139.32
Section 10	34,175.44
Less: amount already received	(500.00)
Total:	$60,814.76

Orders

55.Accordingly, there shall be judgment in favour of the applicant in the sum of $60,814.76.  Interest shall accrue on this sum at half the judgment rate from the date of the accident until the date of judgment and after that at judgment rate until payment in full.

56.I further make an order nisi that the respondent do pay the applicant’s costs of the action, to be taxed if not agreed, with certificate for counsel and that the applicant’s own costs and the respondent’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Stephen Fong, instructed by Damien Shea & Co, assigned by the Director of Legal Aid, for the applicant    

Mr Kam Cheung, instructed by KB Chau & Co, assigned by the Director of Legal Aid, for the respondent