Liu Hsiao Chuan v. Otis Elevator Co (HK) Ltd

CACV000032/1988

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Coram: Fuad, V.-P., Kempster & Power, JJ.A.

Date of Hearing: 8 November 1988

Date of Judgment: 8 November 1988

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J U D G M E N T

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Fuad, V.-P.:

1. This is an appeal by an employee from the decision of Mr. R.W. Davies sitting as a Deputy Judge in the District Court whereby, on 19 January 1988, he dismissed an application for compensation under the Employees' Compensation Ordinance, Cap. 282.

2. At the material time the employee, Mr. Liu Hsiao Chuan, was working as a lift maintenance mechanic for the Otis Elevator Company (Hong Kong) Ltd. ("the Company"). His was necessarily a peripatetic job and he was given the use of a motor-cycle owned by the Company to reach the buildings whose lifts required attention, and for which the Company was responsible. He was only permitted to use the motor-cycle in connection with his employment, but was allowed to keep it at home after working hours.

3. On 28 August 1985, which was a Wednesday, Mr. Liu had been working overtime and did not finish work until 8:00 p.m. His last job for the day had been at Yuen Long. When he was riding his motor-cycle on the Castle Peak Road from the direction of Yuen Long towards Tuen Mun, at the 22?milestone, he was involved in an accident. There is no clear evidence about the precise time when the accident occurred but a police report indicates that the police reached the scene at about 8:40 p.m.. It was in respect of the injuries he thereby sustained that he claimed compensation from the Company. Liability was denied and the sole issue before the judge was whether Mr Liu was, or was not, in the course of his employment at the relevant time.

4. There was evidence that the distance from Yuen Long to the scene of the accident is about 5 miles, and it is another 3 miles on to Tuen Mun.

5. Mr. Liu's case was that he was on his way home by the most direct route after finishing work that evening when he met with the accident. If this were so then, of course, the accident arose out of and in the cause of his employment and he was entitled to be compensated under the Ordinance.

6. He told the Court that he was living with his mother and brother in Tuen Mun at the time, but he would sometimes spend Saturdays with his father (who had separated from his mother) at Yuen Long. If he had to work on the following Sunday he would continue to stay with his mother.

7. In his evidence-in-chief, Mr. Liu said that he had been on his way home to Tuen Mun to get changed before going out on a date, with his girlfriend, Miss Wong Lai Sheung. He had no idea how the accident had happened and had woken up to find himself in hospital.

8. No doubt, in anticipation of cross-examination that was to be expected, he introduced into his case the contents of a statement he had made to PC11864 on 12 September 1985 during the afternoon of his 16th day in hospital, and sought to explain it. Part of the statement (in translation) was as follows:

"At 8:25 p.m. on 28th August 1985, I had an appointment with my girlfriend Wong Lai Sheung to meet me at Lam Dai District. So I went alone from my house at Shung Ching Village, Yuen Long, driving the motor-cycle, DC4802 heading towards Lam Dai to meet Wong Lai Sheung there. At that time I was wearing my helmet. I was driving along Castle Peak Road from Yuen Long to Tuen Mun. I cannot recall the gear engaged and the speed of the motor cycle and the lane in which I was driving. Also I cannot recall where I had been and how the accident occurred."

9. If he had really been staying in Yuen Long during those days, he should have left the motor-cycle there after finishing his work and if he was on his way towards Lam Dai to keep his date with Miss Wong when he met with the accident, then the accident did not arise out of and in the course of his employment. He would have been on his own, and not the Company's business.

10. When later, Mr. Liu was cross-examined on his police statement, he acknowledged his signature at the foot of it but said that since he was not "exactly conscious" at the time he had no recollection at all of PC11864's visit to take the statement. He accepted that some of the information in the statement must have come from him but thought that where it was recorded that he had been riding from his home in Yuen Long to meet Miss Wong, this must have come from Miss Wong herself, for she was present at the time. He had forgotten all about his date with her until she had reminded him of it.

11. When Miss Wong came to give evidence, she told the Court that she had given this information to the police officer because, although she knew he was living in Tuen Mun, she had supposed that he had been coming from his father's house in Yuen Long. She had given the Yuen Long address (which also appeared at the top of the Statement) because she knew he stayed there on Sundays and public holidays and was not sure of his address in Tuen Mun. She said that the arrangement was that they would meet at 4:25 p.m. at the junction of the Main Street of Lam Dai where it joins Castle Peak Road. Other evidence indicates that this was about ?mile beyond the scene of the accident.

12. PC11864 was called by the Company. He has been in the police force for over 17 years. He said that Mr. Liu had been in a fit state to make the statement, otherwise he would not have taken it. Mr. Liu had not in any way been confused while he was talking to him. The statement was an accurate reflecton of what he had been told by Liu himself. Mr. Liu had read the statement over before signing it.

13. The police officer accepted when he was being cross-examined that Mr. Lit had first said that he could not remember what direction he had been driving in, and that he had said what was recorded after he was asked to think about it.

14. Miss Wong had waited for Mr. Liu to keep his date with her at La Dai until about 9:00 p.m.. She had learned of the accident and gone to the scene. She reached there after Mr. Liu had been taken to hospital. PC11864 testified that he had obtained the address in Yuen Long from one of his colleagues who had arrived at the scene before he had done so. He was there told that Miss Wong had given that address.

15. During Mr. Liu's cross-examination it transpired that he could not even remember in which direction he had been travelling when the accident occurred. He explained that he had said, in examination-in-chief, that he was on his way home to Tuen Mun to get changed before meeting Miss Wong because that is what he would normally do.

16. On the central issue, the judge said that the onus was upon Mr. Liu to establish his claim for compensation upon the balance of probabilities. The fact that the accident had taken place on a route which he would be expected to take to his address in Tuen Mun allowed for the possibility that he could have been on his way there, but this would not take account of the content of his police statement.

17. The judge observed that neither Mr. Liu nor Miss Wong had said that the statement did not, in fact, reflect the true situation, only that she supplied the information which appeared in it and that he had presumed that he was in the act of taking the motor cycle to Tuen Mun when the accident occurred.

18. The judge expressed the view that Mr. Liu was engaging in "selective amnesia". He found it difficult to accept, on the balance of probability, that his condition was such that he could not remember the police officer's visit to the hospital to take his statement. It was, he noted, only in cross-examination that he had claimed that his amnesia was such that he could remember nothing related to the taking of the statement. The judge said that it seemed most improbable that no conversation had taken place between Mr. Liu and Miss Wong about the officer's visit and the contents of the statement at any stage before his interview with the Legal Aid Department. He suspected that it was only when the significance of what was recorded in the statement had been made clear to Mr. Liu that he had realised its likely prejudicial effect on his application for compensation.

19. The judge indicated that he accepted that Miss Wong had attended the scene of the accident and had informed police officers that Mr. Liu had an appointment to meet her. He also accented that she gave the officers his address in Yuen Long, but in the belief that he had come from there that evening. He found on the balance of probabilities that Mr. Liu knew that he had a date to meet her in Lam Dai District at 8:25 p.m., and that he was on his way to meet her when he had the accident. Mr. Lui had apparently been unable to assist as to what his intentions were when he set out on the journey. He considered it more than probable that, being aware that the time of his date with his girlfriend as imminent, he had set off from Yuen Long to keep it as soon as he possibly could.

20. The judge said that he agreed with the submission that it was the purpose of the journey that has the predominant issue here, and not the route which Mr. Liu took, which was co-incidental.

21. The judge went on to say that he was satisfied on the evidence that it was more probable than not that Mr. Liu had been going directly to meet Miss Wong in Lam Dai, and that this was the purpose of his journey, rather than to leave the motor-cycle at Tuen Mun before returning to meet her. That had been foremost in his mind when interviewed at the hospital. Since he would have been late for his date if he had gone to Tuen Mun first, it was probable that Mr. Lui had gone to his father's house in Yuen Long to change his clothes. He used his father's address at weekends and, therefore, it was not unreasonable for him to have had a change of clothes available there. He had heard nothing to suggest that the contrary was more likely.

22. The judge concluded, that on the evidence produced by the parties, Mr. Liu had failed to substantiate, on the balance of probabilities that his accident had occurred while he was in the course of the Company's business.

23. Mr. Sarony (who did not appear in the Court below) has urged upon us a submission that the judge placed too much weight on the police statement given while Mr. Liu was lying injured in hospital. He contended, also, that the judge had not sufficiently considered the effect of the sentence at the end of the passage I have quoted ("Also I cannot recall where I had been and how the accident occurred.") upon what had gone before.

24. The question whether or not a person was in the course of his employment at the material time in a claim for compensation under the Ordinance is essentially a question of fact. Here, it is quite plain that the judge was not satisfied with the explanations given by Mr. Liu as to the contents of the statement the police officer recorded from him. It is not, therefore, surprising that he reached the conclusion that Mr. Liu had not discharged the burden upon him. Clearly the judge did not form a favourable impression of the manner in which Mr. Liu answered questions in cross-examination as to the taking of the statement and, speaking for myself, from the bare record (and we do not have the advantage the judge had of seeing Mr. Liu giving evidence) his answers certainly seem evasive and confusing. The previous statement presented a formidable hurdle for Mr. Liu’s case which the judge rightly felt he had been unable to surmount.

25. The judge is criticised for having speculated about the probability that Mr. Liu had in fact gone to his father's house to change that night before setting off do the motor-cycle to keep his date with Miss Wong. All I would say about this is that, in effect, what the judge was really saying was that the truth of the matter might well lie in the version of the facts recorded in the statement. I think that this was a view the judge was entitled to take.

26. In the circumstances, I am not able to interfere with his conclusion that Mr. Liu had failed to substantiate his claim that, contrary to what he had earlier told the police officer, he was, at the material time, riding to his mother's home at Tuen Mun to leave his motor-cycle there so as to have been in the course of his employment.

27. I would, therefore, dismiss this appeal.

Kempster, J.A.:

28. I, too, would dismiss the appeal for the reasons given by my Lord, the Vice-President, have nothing to add, save that the Appellant can hardly complain of the existence of a doubt raised by a statement to which he himself had subscribed.while being unquestionably of sound mind.

Power, J.A.:

29. I, too, concur and have nothing to add.

Representation:

Mr. Neville Sarony (Director of Legal Aid) for the Appellant

Mr. T. Chung (W.K. To & Co.) for the Respondent.