Chan Ka Leung Bee v. Golden Island Metal Manufactory Ltd
Read the full judgment text of DCEC 813/2003 on BabelCite. This District Court judgment.
1. The Applicant was employed by the Respondent. On 9 September 2002 the Applicant was operating the tailgate platform of the Respondent’s lorry, the tailgate fell and crushed the Applicant.
Cited by 3 cases
|
DCEC813/2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 813 OF 2003 -------------------- IN THE MATTER OF AN APPLICATION BETWEEN:
-------------------- Coram : H.H. Judge Wong in Court Date of Hearing : 23rd March 2005 Date of Handing down Judgment : 19th April 2005 JUDGMENT Undisputed Facts 1.The Applicant was employed by the Respondent. On 9 September 2002 the Applicant was operating the tailgate platform of the Respondent’s lorry, the tailgate fell and crushed the Applicant. 2.The Applicant was aware that two of the four hydraulic cylinders of the tailgate platform were broken. The Issue 3.It is not disputed that the Applicant was in the employ of the Respondent and that he was injured in the cause of his employment. The only issue is whether the injury was a deliberate self-injury or alternatively it was the Applicant’s serious and wilful misconduct which attributed to the injury. Evidence 4.The Applicant said that on 9 September 2002 about 8 a.m. he went to Shenzhen intending to drive that lorry which was loaded with goods to Hong Kong. He discovered that two of the four tailgate platform hydraulic cylinders were broken. He immediately informed his employer Mr. Hui who told him that he was aware of the defect. The Applicant asked Hui if the hydraulic cylinders had to be repaired before making delivery. Hui told him the tailgate platform can function with two cylinders and further told him that the goods had to be delivered to the Convention Centre that afternoon between 2 to 3 p.m. 5.He picked up Mr. Wong Kai Chung in Hong Kong office. He told Wong about the two broken hydraulic cylinders. Wong replied that he was aware of the broken cylinders and told the Applicant to hurry up and load the other goods in the Hong Kong office from the side door of the vehicle. 6.On reaching the Convention Centre loading and unloading area, he parked the lorry in between two lorries. He intended to use the tailgate platform and released the metal chains on both sides of the tailgate platform, it suddenly fell onto him and caused the injury. 7.Mr. Hui San Man gave evidence and said that he could not remember if he was in Shenzhen or Hong Kong on that day. He did not know of the broken hydraulic cylinders and was not sure if he met or talked to the Applicant on that day. 8.Wong Kai Chung had worked for the Respondent for over ten years. On that day he was told to team up with the Applicant to deliver goods to the Convention Centre. He was told by the Applicant that two out of four hydraulic cylinders were broken. He went to have a look and told the Applicant that the tailgate platform should be securely hooked and use the side swing door to unload the goods. On reaching Convention Centre he suggested that they should unload the goods through the swing door. The Applicant ignored his suggestion and detached the hooks of the tailgate platform as a result it fell and injured the Applicant. 9.I have carefully considered all the evidence those of the Applicant, Mr. Hui and Mr. Wong. I preferred the evidence of the Applicant. I accept that it was busy at the Convention Centre as people were busy unloading their goods in preparation for the Exhibition. I also accept that there were lorries parked beside the Respondent’s lorry so that there was not sufficient space to swing open the side gate. 10.Mr. Hui’s evidence has no probative value as he did not remember what happened on that day. 11.I do not accept Mr. Wong’s evidence as he only recited his evidence in chief during cross-examination and did not answer questions put to him. He gave me the impression that he was evading the questions put to him. Finding 12.S. 5 (2) of the ECO provides:-
13.S. 5 (3) provides:-
14.S. 5 (4) (b) provides:-
15.It is clear from my finding that S. 5 (4) (b) applies in the circumstances of this case. He was acting according to the orders given by Mr. Hui. In any event what he had done was for the purpose of and in connection with the employer’s trade or business. He had to unload the goods to the Convention Centre for the purpose or in connection with his employer’s trade or business. 16.I do not find that there was any wilful misconduct nor did he deliberately injured himself. Although he was aware that the two hydraulic cylinders were broken he could not have foreseen that the platform would drop once the hooks from platform were detached. 17.In Johnson v. Marshall Sons & Co. Ltd. [1906] AC 409 at 411 per Lord Loreburn LC “ ‘wilful misconduct’ in Workman Compensation Act 1897 imported that the misconduct was deliberate and not merely a thoughtless act on the spur of the moment.” 18.Further there is no evidence that the injury was caused by self-injury of the Applicant nor was it a deliberate act. It was merely ignorance on his part he could not have foreseen that the platform would drop once hooks were released when two hydraulic cylinders were broken. 19.By reasons aforesaid I find that the Applicant was injured in the course of his employment which injury was not a deliberate self-injury nor was it a serious and wilful misconduct on the part of the Applicant. I rule that the Respondent is liable to compensate the Applicant in respect of the Applicant’s injury. 20.Assessment of compensation adjourned to a date to be fixed. 21.Order nisi: Costs to the Applicant. Certificate for Counsel. Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.
Mr. Meyrick Wong instructed by Messrs. Or, Ng & Chan assigned by D.L.A. for Applicant. Mr. Anthony Lo instructed by Messrs. Philip K.Y. Lee & Co. for Respondent. |
Other judgments that cite this case