Chao Yuan Chiao v. Regal Hotels International Ltd. and Another

DCEC000593/2000

DCEC593/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 593 OF 2000

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Coram: H.H. Judge Li in Court

Date of Trial: 11, 12, 13 and 18 July 2001

Date of Handing Down Judgment: 8 August 2001

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Judgment

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1.The Respondents belong to the same group of hotel enterprises. For all intents and purposes in this case there is no point in distinguishing the two. Hence the Respondents are together referred to in this judgment as the Respondents. The Applicant was hired by the Respondents as an assistant uniform and linen supervisor in 1996. She had been working for the Respondents in a hotel on Hong Kong island until some time in 1998 when she requested transfer to a hotel nearer her home in Tuen Mun. On 1st September 1998 the Respondents posted her to the Regal Kai Tak Hotel in Kowloon for training as a chambermaid. As a chambermaid, her duties were quite different. It is not disputed that as a chambermaid the Applicant had to make up a number of guest rooms everyday. The process of making up rooms required lifting bed mattresses and pulling and pushing beds. It is now also common ground that the Applicant went to work on 25 September 1998 - the day of the accident.

2.On the day of the accident, according to her own evidence, when she was making up the seventh (but not the last) room assigned to her, the Applicant lifted up a heavy mattress in order to tuck in a bed sheet. In the process of handling the heavy mattress, the Applicant felt pain radiating from her back bone to the right leg. She then fell to the floor. After she managed to pick herself up, she called her immediate supervisor George Ho ("George") through the phone and reported to him what had happened to her. The Applicant insisted in her evidence that George went to the room where she was working to see her. Eventually, she was taken to the Executive Housekeeper's Office and put through the phone to one Mr. Lam ("Mr. Lam") the Executive Housekeeper in charge of the Applicant. It should be noted that Mr. Lam was at the time based at the Respondents' hotel in Chek Lap Kok Airport.

3.By all accounts, Mr. Lam spoke with the Applicant over the telephone some time near noon time on 25th September 1998. According to the Applicant, she told Mr. Lam that she had a bad back and requested posting back to the Uniform and Linen Room. Mr. Lam, however, responded that since she had a bad back she should know what to do. The Applicant took it as an indication that she should resign. Hence she went to the Human Resources Office of the Regal Kai Tak Hotel to hand it a written resignation and, after surrendering stores issued to her, left the hotel some time after 1 p.m.

4.After leaving the hotel, the Applicant took a bus heading for her home in Tuen Mun. When the bus was about to reach the stop where she wanted to get off, the evidence went on, the Applicant got up. She then felt another strike of pain in the lower back extending to her right leg. She fell on the floor of the bus with buttocks landing first. Eventually she managed to make her way home. However, later in the evening, her condition was such that she sought treatment at the Accident and Emergency Department of Tuen Mun Hospital.

5.In fact, the Applicant had a medical history. Counsel for the Applicant has very helpfully prepared a summary of the medical history:-

Summary of medical history of the Applicant

Date of consultation	Reasons(s)	sick leave period (if any)
19/3/1997(A & E)	pain at low back after lifting weight at work	17/3/97 - 25/3/97
13/8/1997	sprain back on 19/7, backache	1 day
10/9/1997	right knee pain for 3 days & flu	Nil
10/2/1998	neck pain for 1 day	Nil
7/3/1998 (A & E)	back pain radiating to right leg for 2 days	19 days (7-28/3/98)
25/3/1998	sudden increase in low back pain on 7/3/1998 while sleeping	Nil
8/9/1998	low back pain	Nil
17/9/1998	back pain, knee pain and finger pain since last week (no recent injury)	Nil
21/9/1998 (A & E)	back pain radiating to left leg for 1 week	4 days (21-24/9/98)
25/9/1998 (A & E)	low back pain for 1 day (trauma, sudden onset)	111 days (25/9/98-13/1/99)

6.The Respondents' pleaded defence is deceptively simple - the Applicant's alleged injury at work on 25 September 1998 is denied and the Applicant is put to strict proof. At the trial, the Respondents attacked the Applicant's case in three ways: (1) the Applicant did not suffer any trauma whilst working in the morning on 25 September 1998; (2) if there was any trauma on 25th September 1998, it was the result of the accident on the bus after the Applicant had resigned or it was the relapse of a pre-existing condition; and (3) even if there was industrial injury, the disability caused was no worse that what the Applicant had been suffering before.

7.Although both parties called medical experts, neither expert can confirm one way or the other whether the Applicant did suffer from trauma during work on 25th September 1998. The case, on the issue of liability, ultimately turns on the credibility of witnesses as to facts.

Liability

8.The Applicant was alone when the alleged industrial injury took place. However, she said she did tell 3 people in the employ of the Respondents of her injury immediately after the alleged accident. The first was George, the immediate supervisor working in the same hotel. George in giving evidence denied that the Applicant reported to him of injury at work on 25 September 1998. He said he did not know of the Applicant's complaint of injury nor of her resignation even when the Applicant did not report for work on 26 September 1998. So in the morning on 26 September 1998 he reported to Mr. Lam of the Applicant's absence from work without leave.

9.I have no difficulty at all in finding George an unreliable witness. Being the immediate supervisor of the Applicant and answerable to the hotel management for the making up of rooms under his charge, it is highly incredible that George did not know that the Applicant left work at lunch time without finishing making up rooms assigned by George to her. On his own evidence, George had to check the work of the Applicant. He must have discovered on 25 September 1998 that the Applicant "disappeared" before finishing her quota of rooms. George said he reported to Mr. Lam on the morning of 26 September 1998 about the Applicant's absence and even then he did not learn that the Applicant had resigned. Mr. Lam, however, gave evidence and said categorically that George did not and had no reason to report to him the matter of the Applicant's absence on 26 September 1998. Besides, Mr. Lam admitted that he learned in the afternoon of 25 September 1998 of the Applicant's resignation. This being the case, there is no reason why, if George did report to Mr. Lam on the morning of 26th September 1998, Mr. Lam did not tell George that the Applicant had resigned. In short, George is discredited by another of the Respondents' witnesses.

10.Mr. Lam is the second person the Applicant said she complained to about back injury on 25 September 1998. Mr. Lam admitted that he did speak to her over the telephone but she did not mention back pain at all and he had no opportunity to find out over the telephone why she wanted to resign. The Applicant, he said in evidence, hung up on him. Later the same day, he got a message that the Applicant had tendered resignation and gone.

11.The third person is Mr. Ho. Mr. Ho ("Mr. Ho"), an Assistant Personnel Officer at the Regal Kai Tai Hotel, gave evidence that he did see the Applicant at about noon time on 25 September 1998 when the Applicant tendered her resignation. He remembered that the Applicant did mention to him that she had back pain. I have no reason at all to disbelieve Mr. Ho. Since the Applicant told Mr. Ho that she had back pain, I see no reason why she did not also tell Mr. Lam of her back problem. The Applicant could have simply gone to the Human Resources Department and tendered resignation to Mr. Ho. But she took the trouble of speaking to Mr. Lam over the telephone before proceeding to the Human Resources Department. Obviously she wanted to approach Mr. Lam, the head of her department, with her problem hoping that he could solve it. So, despite all the air of caring management expressed by Mr. Lam, I do not believe him. I think it is much more likely that, as the Applicant stated in evidence, upon hearing the Applicant's complaint of back pain, Mr. Lam hinted to her to resign.

12.As to the Applicant's own credibility, she has no other witnesses to back up her story. However, both medical experts who examined her for the purposes of this case stated that the Applicant did not exaggerate her symptoms. So there is some independent confirmation that the Applicant is an honest person. Moreover, if the Applicant manufactured a story to claim compensation, one can see from her medical history that she suffered from an industrial injury in March 1997, one year before, whilst also working for the Respondents but she had not filed any claim for that earlier accident. As she said in evidence, she did not know on 25 September 1998 that the kind of injuries she suffered in March 1997 and September 1998 for lifting weighty objects at work amounted to industrial injury and attracted compensation. She said it was only after she had been admitted into hospital for treatment on the 25 September 1998 and the medical staff had advised her that she realized she should claim statutory employee compensation. Her evidence is borne out by hospital records. The Accident and Emergency Department record for 25 September 1998 shows that she reported the accident on the bus. There is hardly any mention of trauma at work. Had the Applicant wanted to shift the blame for her medical condition to work at the hotel, which is what the Respondents contended, she could have simply said nothing about the incident on the bus and emphasized the incident at the hotel.

13.Last but not the least, as Mr. Sakhrani counsel for the Applicant suggested, if there was no special event on the morning of 25 September 1998, why would the Applicant suddenly resign and why would the hotel let her walk out before she had finished her shift? To this, I would add that if the Applicant was not suffering, if she was merely not content with the post of chambermaid, she had no reason not to give notice of resignation and serve out her notice. Remarkably, the Respondents, believing that the Applicant had no cause for complaint about work conditions and yet walked out of her job without giving prior notice, have not pursued the Applicant for payment in lieu of notice.

14.For all the reasons given, I believe the Applicant told the truth that she had a trauma in the lower back bone as she was lifting a heavy mattress during work on the morning of 25 September 1998.

15.Once it is accepted that the Applicant suffered from trauma whilst performing strenuous duty during work, it is reasonable to deduce that the trauma was due to an accident and not relapses of a pre-existing condition. There is also a presumption of accident according to section 5(4) of the Employees' Compensation Ordinance, Cap. 282 and the Respondents have not produced a shred of evidence to rebut this presumption. And it does not matter that the pre-existing condition had rendered the Applicant more accident prone. The old Thin Skull Principle inures to the benefit of the Applicant.

16.For safe measure, Mr. Sakhrani referred me to Richard Lavis' work, Compensation For Industrial Injury. There, the learned author observed that:-

" Although an accident in the popular imagination may conjure up some dramatic event causing the emergency services to turn out in an atmosphere of crisis or even disaster, it is apparent that under the industrial scheme many other types of incident not normally thought of as accidents are included within the term. These may be of the most trivial or unsensational nature and cause injury only in a stealthy manner. Thus, as discussed below, even the slow onset of disease in certain circumstances can be classified as an accident. Nor, as may popularly be suppose, need an accident be completely unexpected." (p.38)

" Because a particular event is required it does not mean that an accident must be confined to external incidents like mishaps with machinery. It can include an internal physiological change for the worse as long as it amounts to a personal injury as defined below. All that is required is that such a change was contributed to in a material degree by the claimant's work (as discussed under causation below). This means that a muscle strain, a ricked back, or a rupture caused by lifting a weight at work can all be accidents. No exceptional or violent exertion is required. Thus the claimant who "felt something go inside" whilst pushing a hand truck, and who was then found to be suffering from angina induced by strain, was able to claim injury by accident in CI 27/49." (p.41)

" The crucial causation question asked in R(I) 73/81 is "was it the disease that did it, or did the work that he was doing help in any material degree?" The work need only be a material not the predominant cause, so that compensation arises if a minor work incident has quite disproportionate physical results and the claimant suffers much more serious injury than would a normal worker. It does not matter then that the industrial cause is the "last straw which breaks the loaded camel's back", for the scheme takes its claimants as it finds them, including their pre-existing weaknesses. The rule is tort law that a plaintiff can succeed despite having an unusually "thin skull" which makes the effects of his accident must more severe is thus reflected under the scheme. It was applied in R(I) 19/63 where a bakery assistant with a degenerative disc condition crouched down to put dishes under a table and this was the last straw which caused the complete prolapsed of an already partially relapsed disc. In R(I) 16/62 a nick of the skin had such an effect upon the claimant's existing vascular condition that his foot had to be amputated. Benefit was nevertheless paid.

The decisions have emphasised the need to find some feature in the employment which brought about the injury so that it arises "out of" employment. (See also the cases cited under that heading at p.83). The employment can be shown to be causally relevant in two particular ways:

(a) The cause of strains and heart conditions

If it can be shown that the word caused the strain which resulted in injury (and this is more likely if the work required special effort), then the claimant will succeed. According to Clover, Clayton & Co. v. Hughes (1910) an accident arises out of employment "when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of his health"., On this basis the claimant who suffered a hernia whilst lifting a heavy steel plat succeeded in obtaining benefit in 8/59(II). In R6/70(II) the strain was a material cause of the claimant's injury despite his pre-existing osteoarthritis which contributed to it." (p.47)

17.Now, I can easily identify the lifting of the heavy mattress on the morning of 25 September 1998 as the incident - the metaphorical straw that broke the camel's back. So no doubt there was an accident within the meaning of the Employees' Compensation Ordinance, Cap. 282. Mr. Leung for the Respondents, in a stroke of genius, contended that since the Applicant was already suffering from back problem and could not lift heavy weight before the accident, the injury resulting from the accident did not put the Applicant in a worse situation. The answer to that is that before the Applicant was transferred to the Housekeeping Department on 1 September 1998, although the pre-existing condition did relapse about once every few months, it was not sufficiently grave to put her off work. She could still keep her job in the Uniform and Linen Department earning $11,008 a month. After starting work at the Housekeeping Department, the Applicant had to consult doctors 3 times within a matter of 3 weeks. No doubt there was the additional strain of physical exertion making up rooms and then, of course, the incident on 25 September 1998 which resulted in sick leave for 111 days. After that, there is uncontradicted evidence from the Applicant that she tried at least 3 jobs but could not hold on to them. In two jobs, one requiring occasional effort to put grocery merchandise on shelves and another requiring occasional pushing and pulling of merchandise on a wheeled trolley, she was dismissed within days for being unable to do strenuous work. It must also be noted that the jobs the Applicant lost after the accident paid between $6,000 to $6,500. Clearly, I think the Applicant had suffered from permanent incapacity over and above her pre-accident conditions as a result of the injury on 25 September 1998.

18.Due to the nature of the defence, Mr. Leung did not argue that, notwithstanding the accident in the morning of 25 September 1998, it was only the incident on the bus that caused the permanent incapacity. Even if Mr. Leung did so argue, I am perfectly entitled to find that the fall on the bus was brought about by the onset of trauma in the morning. And, it is trite law that liability for aggravation of injury brought about by impaired health caused by an earlier accident still falls on the party liable for the first accident.

19.In the premises, on liability, I find for the Applicant.

Quantum

20.I am only required to consider compensation under sections 9, 10 and 10A of the Employees' Compensation Ordinance, Cap. 282. For some reason, there is no claim for sick leave allowance. I do not know whether this is because the Respondents have fully paid the Applicant for sick leave or because the Respondent is treated as having resigned on 25 September 1998 and so she is not entitled to sick leave allowance. But I would have thought that there is a strong case for constructive dismissal and, if the Applicant has to claim it, I should think sick leave allowance is due.

21.As to section 10 compensation, the amount has been agreed at $32,584. For section 10A, the amount is also agreed at $1,176. Section 9 loss of earnings, however, remains controversial. It is the percentage of loss of earning capacity that is in dispute. Although both counsel agree that Lui Kwong Yan v. Shui Hing Decoration Works, Civil Appeal No. 62 of 1992 applies, the principle enunciated there does not, of course, consist of a hard and fast formula for determining the percentage of loss of earning capacity.

22.Mr. Leung for the Respondents suggested that the permanent loss of earning capacity cannot be more than 19% because the relevant statistics for light manual work in various industries for September 1998 give an average wage of $8,962 per month. Mr. Sakhrani contended that I should reject this percentage outright. Because the Applicant could not hold for more than a few days jobs paying $6,000 a month, her permanent loss of earning capacity should be at least $(11,008 - 6,000) ÷ 11,008 = 45%. And according to statistics from the Labour Department for Selective Placement of persons with disability, the Applicant could be earning as low as $4,000 a month. On the other hand, Mr. Leung said that Selective Placement statistics are not reliable either because we do not know the job specifications and the disability of the persons placed by the Labour Department. Mr. Sakhrani conceded that all we have are some figures in a table with no explanatory notes on how the statistics were compiled by the Labour Department.

23.I believe the percentage must be higher than 45% because the Applicant could not hold down jobs paying $6,000 a month. It is patently unrealistic to use the statistical average of $8,962 per month preferred by Mr. Leung. The percentage could be as high as (110,008 - 4,000) ÷ 11,008 = 63%. Doing the best I can, I should strike at the golden mean of 55%. At this figure, section 9 compensation should be $11,008 x 96 x 55% = $581,220.40.

Order

24.Accordingly, I give judgment for the Applicant and award compensation at

		$
(1)	for section 9	581,222.40
(2)	for section 10	32,584.00
(3)	for section 10A	1,176.00
		$614,982.40

together with interest thereon at half judgment rate until date of judgment and thereafter at full judgment rate until full payment. There is also costs to the Applicant to be taxed if not agreed and certificate for counsel. The Applicant's own costs is to be taxed in accordance with legal aid regulations.

Representation:

Mr. A. Sakharni instructed by M/S Szwina S.K. Pang & Co. assigned by DLA for the Applicant

Mr. Denis Leung Chong Shing of M/S Masons for the 1st and 2nd Respondents