Ng Kwok Ping v. Vianini S.P.A. High Island Water Scheme Reservoir Hong Kong

DCEC000010/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 10 OF 1975

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Coram: Judge Jones in Court.

Date of Judgment: 22nd March, 1976.

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JUDGMENT

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1. This is an application for workmen's compensation under sections 9 and 10 of the Workmen's Compensation Ordinance in respect of personal injuries suffered by the Applicant in an accident that arose out of and in the course of his employment with the Respondent on the 5th February, 1974.

2. The Respondent denies that the Applicant received his injuries as a result of an accident at work or in the alternative that if it was so caused he is not entitled to compensation as he failed to comply with the requirements as to notice provided by section 14 of the Ordinance.

3. On the date of the accident the Applicant was employed as an odd job worker in the Stone Crushing Section at the High Island Water Scheme Reservoir. Between 3 p.m. and 4 p.m. the Applicant said he was instructed to move an electric motor that was out of order. According to the Applicant the motor weighed between 160 to 170 catties. With the assistance of a colleague Mr. Chan Chun he was lowering the motor by means of a rope fastened to the sides from a platform about ten feet high to the ground. In the course of lowering the motor the Applicant strained the lower part of the left side of his back and buttock.

4. The Applicant stopped work for a few minutes during which time he told Mr. Chan that he had strained his back.

5. However he resumed his work for he did not regard the matter to be serious. He did not report the incident to his foreman.

6. That evening the Applicant felt pain in his back which continued the following day so that he did not return to work.

7. I am satisfied upon the evidence that the Applicant never returned to work with the Respondent after the 5th February 1974.

8. The Applicant's workers record card is marked "absent" from the 6th February 1974 to the 12th February 1974. On the 13th February 1974 he was granted sick leave and his card is marked to this effect up to the 23rd February 1974. About three days after the accident the Applicant received treatment from a bone setter. At a later date which was probably in March 1974 the Applicant said he informed the foreman that he had strained himself when moving the motor on the day of the accident and that he was referred to the company doctor. The doctor prescribed some pills, but refused the Applicant's request to be sent to hospital in Sai Kung on the ground that the accident happened so long ago.

9. Thereafter he went to a Government clinic and was eventually admitted to the Queen Elizabeth Hospital on the 2nd May, 1974. He was discharged on the 1st June, 1974 but continued to receive treatment as an out patient. He was recommended for sick leave until the 5th September, 1974.

10. By a letter dated the 9th September 1974 the Applicant applied to the Respondent to be reinstated in his former job, but his request was refused.

11. The Applicant did not obtain any employment until November, 1975 when he commenced work with his uncle as a newsvendor. His present wages amount to an average of $250 per month. The Applicant is provided with all his meals which he considers to be worth $7.50 per day. He sleeps at the stall the value of which he assesses to be $30 per month. The Applicant's uncle also gave evidence, but said the meals provided were worth $10 per day.

12. The facts of the accident were reported to the Labour Department on the 17th July, 1974. Following the report the Labour Department wrote to the Respondent on the 22nd July 1974 giving the date of the accident as the 16th February, 1974. The Applicant explained that when he was interviewed at the Labour Department he gave the date of the accident as the 14th day of the First Moon which is the 5th February 1974, but that the lady who interviewed him recorded it incorrectly. He claims that he returned to the Labour Department later the same day after checking the date of the accident in order that the mistake could be corrected. However he said that he was told that the date could not be altered. It is clear that the date was corrected to the 5th February 1974 by the Labour Department in a minute on their file dated the 10th September, 1974.

13. The medical evidence reveals that the Applicant had a mild prolapsed disc two years before he was examined by Dr. Ho in April 1974 and that the disc collapsed completely two months before the 1st April 1974. Dr. Ho expressed the opinion that heavy manual work or progressive degenerative disease could have provoked a complete collapse, but having regard to the Applicant's age which is 33 it would be more likely to be attributable to manual work. Dr. Wedderburn agreed with this opinion and also said that the injuries could have been caused by a fall.

14. The Applicant's evidence in cross-examination was unsatisfactory in several respects. After an earlier denial he admitted that he had suffered a minor accident at work with the Respondent in January 1974. He also denied that he told Dr. Ho that he had an injury to his back a considerable time before the accident and had not complained about numbness in the buttock two years before. In addition he disputed the evidence given by Dr. Wedderburn that he had told him that he was working in June 1975.

15. The Respondent's accident report book contains no entry of an accident having been suffered by the Applicant at work during the month of February 1974. The Applicant's foreman Mr. Chow gave evidence that he had never been informed that the Applicant had suffered an accident on the 5th February 1974. He said that he had not seen the Applicant after that date. It is significant that in answer to a question in cross-examination whether on the 5th February he possibly asked the Applicant and Mr. Chan to remove a motor he replied "I can vaguely remember there was such a case telling them to move a motor about that time". He agreed that he recorded sick leave on the Applicant's card from the 13th February upon information received from a fellow worker whose name he was unable to remember.

16. Mr. Kwok the Respondent's First Aid Attendant referred to by the Applicant as the company doctor gave evidence that the Applicant had at no time reported the accident to him. However no medical records were produced for any period after February 1974.

17. The Applicant's evidence was not wholly convincing, but having observed him in the witness box I consider that this was due to a lack of intelligence and not to dishonesty. Where his evidence conflicts with that of Dr. Ho and Dr. Wedderburn I accept that given by the two doctors for they made notes at the time or a short time later. Further his evidence that the Labour Department refused to alter the date of the accident is quite absurd, but I am satisfied that this matter arose as a result of the Applicant's confusion. There is no doubt that if the accident occurred on the 16th February it could not have happened at work for the Applicant was on sick leave. No valid reason can be put forward for this date and I am satisfied that the Labour Department recorded it by mistake.

18. In considering the Applicant's evidence as a whole I was impressed with the detailed and graphic description that he gave of the accident. I have no reason to doubt that he began to suffer severe pain in his back later that evening. Taking into account those parts of his evidence which were unsatisfactory I am quite satisfied that the Applicant was a witness of truth. On the balance of probabilities, taking into account the medical evidence and the evidence of the foreman, I am satisfied that the accident did happen on the 5th February 1974 in the manner that the Applicant described.

19. I therefore find that the Applicant received his injuries in an accident that arose out of and in the course of his employment with the Respondent.

20. Although it is clear that the Respondent was aware that the Applicant was absent from work from the 5th February to the 12th February 1974 and on sick leave from the 13th February I am not satisfied that they had knowledge that it was attributable to the accident. The evidence that the Applicant told the foreman at a later date and was seen by the company doctor was inconclusive. However, there is no doubt that they were informed by the Labour Department of the Applicant's claim by their letter dated the 22nd July, 1974 although the date of the accident was wrong. However, investigation would reveal that this was an error which was soon afterwards corrected.

21. Mr. Rose for the Respondent argued that the Applicant had failed in accordance with section 14(1) of the Ordinance to give notice as soon as practicable, and that his failure to do so has prejudiced the Respondent. The Applicant made efforts to communicate the facts of the accident to the Respondent through a third party, but it was not satisfactorily established that the Respondent became aware of the position at the time when sick leave was granted. Thereafter the Applicant received various medical treatment and was in hospital from the 2nd May to 1st June, 1974. Bearing in mind the severe pain suffered by the Applicant and the fact that in his own mind he believed that the accident had been reported I do not consider that the delay was inordinate. I am of the opinion that in the circumstances the Applicant has shown a reasonable excuse for his failure to give formal notice at an earlier date.

22. The only person who was present at the time of the accident was Mr. Chan who is no longer employed by the Respondent, and cannot be traced. There was no evidence before the Court to show when he left the Respondent's employment. His evidence in any event would be confined to confirming whether he and the Applicant moved the motor and whether the Applicant complained about his back. However I do not consider that the absence of Mr. Chan in any way prejudices the Respondent for the crux of the issue depends upon the credibility of the Applicant which with the reservations I have referred to I am prepared to accept.

23. As a result the Applicant is entitled to judgment.

24. Dr. Wedderburn said that the Applicant will always have some discomfort in the upper left leg and a tendency to back pain. The Applicant's limitation on the straight leg raising test had improved to 25% which could in time improve to 10% - 15% but it is unlikely that it will return to normality.

25. In the form of residual pain and stiffness of the back a medical assessment board on the 21st September 1974 assessed the Applicant's permanent disability to be 2%. Provided that there are no residual signs or symptoms Dr. Wedderburn said that a man who has had a disc removed has a permanent impairment of 5%. He expressed the opinion that the Applicant's total impairment to be 7% and does not anticipate that there will be any significant improvement from his present condition. Dr. Wedderburn said that the Applicant will not be able to do a job that involves weight lifting, and bending into awkward positions. He considers that the Applicant should have been able to return to work eight or nine months after his operation in May, 1974. The Applicant is capable of performing any work of a sedentary nature.

26. It is agreed that the Applicant's wages immediately preceding the accident amounted to $1,157.88 per month.

27. The figures given by the Applicant and his uncle for the Applicant's present wages and benefits were approximate. I shall adopt the sum of $600 per month as the Applicant's present earnings so that his proportionate loss of earning capacity rounded off is 50%. The calculation for permanent partial incapacity under section 9(b) is :-

28. 48 x 1157 x 50/100 = $28,323.36

However by virtue of Section 9(4)(a) the compensation payable under this head is limited to $24,000 which is the amount that I shall award.

29. The award for temporary incapacity under Section 10 is agreed for the period from the 5th February 1974 until 5th September, 1974 assessed as follows:-

30. 1157 x 210/30 x 2/3 = $5,399.33

I will round this figure off at $5,400. Compensation is therefore assessed at $29,400 and there will be judgment in favour of the Applicant for this sum with costs on the upper Scale. The Applicant's costs will also be taxed in accordance with the Legal Aid (Scale of Fees) Regulations. Compensation to be paid into Court within 14 days.

Representation:

Benjamin Choi of Legal Aid Department for Applicant.

J.M. Rose of Deacons for Respondent.