Wong Hei Chun v. Siu Fat Engineering Co.

CACV000054/1996

IN THE COURT OF APPEAL

1996, No. 54
(Civil)

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Coram : Hon. Power, V.-P., Godfrey, J.A. and Sears, J.

Date of hearing : 13 June 1996

Date of handing down judgment : 28 June 1996

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal from a judgment of Her Honour Judge Kwan, who on 29 November 1996, dismissed with costs an application made in the District Court by Wong Hei Chun ("the applicant") against Siu Fat Engineering Company ("the respondent") for compensation for a back injury which the applicant claimed to have sustained at work on 7 January 1993 in the course of his employment with the respondent. The judge was satisfied that the applicant had suffered a prolapsed disc and that this was due to an accidental injury to his back; but she was not prepared to hold that, as the applicant had claimed, this injury was caused by an accident which happened to him at work on 7 January 1993. The applicant now appeals. His case is that, on the evidence, the judge should have found that the injury was caused by such an accident.

The statutory background

2. The applicant's claim is made under the Employees' Compensation Ordinance, Cap.282 ("the Ordinance"), which provides for the payment of compensation to an employee who is caused "personal injury by accident arising out of and in the course of his employment" : see s.5(1). An accident arising in the course of an employee's employment is deemed, in the absence of evidence to the contrary, also to have arisen out of that employment : see s.5(4)(a). Proceedings for recovery of compensation for an injury are not maintainable unless notice of the accident has been given to the employer by or on behalf of the employee as soon as practicable after the happening thereof : see s.14(1). The notice must state in ordinary language the cause of the injury and the date on which and the place at which the accident occurred : see s.14(2). The employer must report the accident to the Commissioner for Labour by notice in the prescribed form, irrespective of whether the accident gives rise to any liability to pay compensation : see s.15(1). Any employer who fails to do so commits an offence : see s.15(6). The prescribed form of notice, Form 2, is prescribed by Regulation 4 of the Employees' Compensation Regulations made under the Ordinance.

The burden of proof

3. An employee claiming compensation under the Ordinance has to prove, then, that the "personal injury" on which he founds his claim was caused by an "accident", being an accident "arising in the course of his employment". He has to prove his case; in particular, he has "to show with reasonable clearness that the accident did actually come from the employment" : cp. Hawkins v. Powells Tillery Steam Coal Company Limited [1911] 1 KB 988, per Fletcher Moulton L.J. at p.995 (a case under the Workmen's Compensation Legislation then in force in England and Wales). If he cannot prove "with reasonable clearness" that his injury was caused by the accident which he claims happened, he cannot succeed; and if he cannot prove to the satisfaction of the judge that, on a balance of probabilities, the accident did happen on "the date on which" and at "the place at which" he claims it happened, he cannot, as it seems to me, successfully assert that he has shown "with reasonable clearness that the accident did actually come from the employment".

The judge's conclusion

4. The judge, having seen, and heard, the applicant, and a number of other witnesses, give evidence, held that the applicant had failed to discharge the burden of proving that the injury suffered by the applicant was caused by an accident, i.e., a slip or trip on a wet floor, which the applicant set out to prove happened to him at work on 7 January 1993.

The appeal

5. We can, certainly, reverse the judge if, on an examination of the evidence, we are satisfied that she was wrong and that the only proper conclusion for her to have reached would have been that, on a balance of probabilities, the applicant did slip, or trip, on a wet floor at work on 7 January 1993 (thus causing the injury to his back). But, if the judge was entitled on the evidence to conclude that the applicant had failed to establish, on a balance of probabilities, that he did suffer this alleged slip, or trip, on 7 January 1993, as he had claimed, then, in my opinion, we are not entitled to interfere at all. So we have to review the judge's findings and decide for ourselves whether the only proper conclusion for the judge to have reached on the evidence was that, on a balance of probabilities, the applicant did slip, or trip, on a wet floor at work on 7 January 1993, thus causing the injury to his back.

The evidence

6. The applicant's evidence, of course, was that he did indeed slip, or trip, on a wet floor at work on 7 January 1993 and so hurt his back. To support this, the applicant gave evidence that he went to see a bonesetter about his injury on 12 January 1993; and that the next day he told the respondent of his visit to the bonesetter and obtained re-imbursement of the bonesetter's fee ($450) from the respondent. He gave evidence that he kept daily records of his work and that those records recorded that he had suffered an "injured back" on 7 January 1993. He led medical evidence to the effect that the prolapsed disc with which the applicant presented was consistent with his having fallen as he claimed. He produced the employer's From 2, dated 24 April 1993, reporting the accident, and the date of it, 7 January 1993, to the Commissioner for Labour (this information had been given to the employer by the applicant himself). But the judge received, as well as this evidence (which, I would accept, may be said to support the applicant's story) a large body of evidence casting doubt on it. A witness for the respondent, a foreman/supervisor, Lam Yau Wun, said that on 7 January 1993 he had worked alongside the applicant, but he did not witness the alleged accident, and that the applicant did not complain to him that he had suffered any such accident. Two fellow employees, who, said the applicant, he had told of his accident, denied this. The judge accepted all this evidence. The proprietor of the respondent, Kok Siu Hang, said that when he paid the applicant his wages on 17 January 1993, the applicant did complain to him of back pain, but ascribed it, not to any accident, but to rheumatism; he said that no complaint of the alleged accident was made to him until April 1993. The judge accepted this evidence, too. Three government doctors who examined the applicant recorded three different versions of what the applicant had told them, none of them consistent with a slip, or trip, on a wet floor at work on 7 January 1993. And the judge accepted this evidence as well.

Conclusion

7. The judge's approach to all this evidence cannot, as I think, be faulted. She said this :

"Since the applicant bore the burden of proving his case on a balance of probabilities, I scrutinised his evidence with care. When I considered his evidence, I took into consideration that he was a labourer with only 5 years of formal education. To a person of that background, the strange and solemn environment of the courtroom, coupled with the novel experience of giving evidence may have had a detrimental effect on his performance.

Bearing in mind that the applicant may not be an articulate witness due to his background, I considered his case to see whether it could survive the assault on it by evidence from the respondent."

8. She then reviewed the evidence. In conclusion, she said this :

"For all the reasons given above, I am not satisfied that the applicant has proved that he had suffered an accident at work in the course of his employment with the respondent on 7.1.93 as alleged. The preponderance of the evidence was against it. In coming to this conclusion, I have not lost sight of the fact that the applicant now has a prolapsed disc at the L4-L5 region of his spine. There is no doubt about his current physical condition. I am just unable to find that his condition was the result of an accident in the course of, and arising out of his employment with the respondent on 7.1.93 as alleged."

9. On the evidence, this conclusion was one which in my judgment she was clearly entitled to reach. Although, admittedly, there was no alternative hypothesis to explain the applicant's injury, it is not for us to speculate whether, if we ourselves had seen and heard all the witnesses, we might have come to a conclusion different from the judge's conclusion.

Result

10. Accordingly, we are, in my judgment, bound to dismiss this appeal. But I would not wish to pass from the case without acknowledging the help we have had from Mr. Mohan Bharwaney, counsel for the applicant, who said all that could possibly be said in support of the appeal, and who caused my mind to waver from time to time in the course of his excellent argument.

Sears, J. :

11. I agree.

Power, V.-P. :

12. I also agree. The result is that the appeal is dismissed. We order, pursuant to Order 42 rule 5(B)(6), that the respondent's costs of the appeal be taxed and paid by the applicant to the respondent; and that the costs of the applicant to which the Legal Aid Ordinance, Cap.91, apply be taxed in accordance with the Regulations made under that Ordinance.

Representation:

Mr. Mohan Bharwaney (M/s. Bough & Co.) for Appellant/Applicant

Mr. Tim Kwok (M/s. Deacons Graham & James) for Respondent/Respondent