Tsang Man Hoi William v. Utec Ltd

cacv 56/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 56 of 2004

(on appeal from DCEC NO. 546 of 2001)

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before: Hon Rogers VP, Le Pichon JA and Suffiad J in Court

Date of Hearing: 3 March 2005

Date of Judgment: 3 March 2005

Date of Handing Down Reasons for Judgment: 8 March 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This is an appeal from a decision of HH Judge Yuen given on 3 February 2004.  The matter before the judge was a claim for compensation under the Employees’ Compensation Ordinance, Cap 282.  The quantum had been agreed between the parties at $58,619 and the dispute before the judge was as to liability.  The judge held in the applicant’s favour and granted judgment accordingly.  At the hearing of this appeal this court dismissed the appeal with reasons to be given in writing which we now do.

The background

2.The applicant was employed by the respondent in June 1998 as a driver/worker.  The claim in these proceedings is based upon the allegation that on 7 July 2000 the applicant was injured as a result of an accident at work.  The accident occurred outside the fire station at Smithfield Road, Kennedy Town when the applicant was assisting Kung Kam Tsui (“Kung”), another worker also employed by the respondent, to examine the pipes, drains and ducts at a manhole.  Kung and the applicant were lifting the cover of the manhole when the key which Kung was holding slipped and the manhole cover dropped.  The applicant claimed to have sprained his back as a result of this accident.  He said that he felt some discomfort at that time but was able to continue with his work.  Indeed he drove the respondent’s van with his other colleagues back to the office and then attended the Prince of Wales Hospital. 

3.The doctor who attended the applicant on 7 July prepared a report which is dated 3 March 2001 in which he sets out the medical findings that were as follows:

(1)	There was pain over the lower back.
(2)	There was no neurological deficit.
(3)	The range of movement of back was normal.

4.Following that the applicant was given physiotherapy treatment at the Prince of Wales Hospital.  Altogether he had 19 sessions of treatment starting on 16 August 2000 and concluding on 2 January 2001.  The physiotherapy report includes the following:

“	2.	In the initial treatment given on 16 August 2000, Mr Tsang showed some limitations on both neck and back mobility with pain reported.  Pain upon compression was found over central neck and left side of back regions.  His arms and legs were generally slightly weaken.
	3.	Physiotherapy given to him included pain relieving treatment by electrotherapy; postural advice, mobilization and strengthening exercises for both neck and back areas.  Gradual improvement was shown with treatment given.
	4.	Totally he received 19 sessions of treatment, pain was minimal and occasional then.  He regained mobility at back and neck to the end of motions.  The treatment was stopped on 2 January with strengthening exercises and postural care encouraged for self practice.”

The hearing below

5.At the hearing before the judge the respondent’s case was that no accident had befallen the applicant.  The respondent had, on the day prior to the alleged accident, decided to terminate the applicant’s employment and, in brief, the applicant had faked the accident so that he could remain in employment.  A number of matters were relied by the respondent in seeking to establish that no accident had befallen the applicant.  In particular evidence from Johnson Lee, who was the operations manager of the respondent, to the effect that the applicant had made admissions to him was heavily relied upon.  It was also said that Kung had told Johnson Lee over the telephone “whatever Ah Hoi (the applicant) said, I would be saying the same.” thus indicating that Kung was party to the applicant’s alleged deceit.  Furthermore reliance was placed on the fact that the applicant agreed with Johnson Lee to amend his work record so that it read that he was on “sick leave” instead of “industrial injury leave”. 

6.In her judgment, the judge set out the history and came to the conclusion that nevertheless the applicant, despite being less than frank about the events and the extent of the injuries he suffered, had suffered an injury on 7 July 2000 which was consistent with a sprained injury.  She accepted that the manhole cover did the slip in the way that had been described and that the applicant had sustained a sprained back injury.

This appeal

7.On this appeal Mr Wright, who appeared on behalf of the respondent, sought to argue that the main finding of fact by the judge had been in paragraph 19 of her judgment where she had said:

“I accept Mr. Lee of the respondent to be truthful in recounting what he was told by the applicant, namely that the applicant has faked his injuries.” 

In summary, his argument was that, having accepted Mr Lee’s statement, the judge could not thereafter have held that an accident had occurred in which the applicant had suffered injury.

8.In my view that argument cannot be sustained.  Although the judge does not make clear what she held was meant by “faked his injuries” when the transcript is examined it is clear that Johnson Lee was giving his impression of what the applicant had said rather than recounting his exact words.  As regards the judge’s finding, it is quite clear when reading the whole of paragraph 19 of the judgment, not to speak of the rest of the judgment as well, that the judge had this well in mind and, despite Mr Lee’s evidence, she held in favour of the applicant. 

9.Mr Wright sought to argue that the medical certificate from the doctor could not establish that the applicant suffered pain because the only person who would know that would be the applicant himself and, in effect, the certificate should be understood as the doctor indicating that he had been told by the applicant that he suffered pain. 

10.If there had been cross-examination of the doctor on his certificate and he had been asked whether this assessment of his report were correct it might be open to the respondent to so argue.  But the fact remains that the doctor signed a certificate saying that it was his medical finding that there was pain over the lower back and that certificate had been admitted in evidence following a hearsay notice.  In my view a doctor is most probably able to tell whether somebody truly has pain or not.  Furthermore, it seems to me that the physiotherapy report is revealing.  It would not be open to this court to allow this appeal on the basis that the applicant had been faking his injuries given the fact that the physiotherapy report refers to pain on compression at the relevant time and a gradual improvement over a very extended period of time.  Those statements in the physiotherapy report seem to me to be quite inconsistent with there being any faking of the injury.

11.It is also of significance that one of the arguments, which apparently caused the judge to have some doubt, was the question as to whether the applicant had suffered neck pain prior to 3 September 2001, which was some 14 months after the accident.  The physiotherapy report demonstrates that this point was, in all the circumstances, not valid.  The applicant clearly had neck pain when he commenced physiotherapy treatment in August 2000.

12.In those circumstances there was no ground upon which this court could disturb the finding of fact by the judge and the appeal was therefore dismissed.

Hon Le Pichon JA:

13.I agree.

Hon Suffiad J:

14.I agree.

Mr Charles T C Wong, instructed by Legal Aid Department, for the Applicant/Respondent

Mr Colin Wright, instructed by Messrs Deacons, for the Respondent/Appellant