Chan Yau Yue v. Gentle Wealth International Ltd
Read the full judgment text of DCEC 1170/2004 on BabelCite. This District Court judgment.
1. The Applicant in this Action applies for employee’s compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance in respect of personal injury by accident arising out of and in the course of employment, which occurred on 2 nd April 2003.
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DCEC1170/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 1170 OF 2004 -------------------- IN THE MATTER OF AN APPLICATION BETWEEN:
-------------------- Coram : Her Honour Judge C.B. Chan in Court Dates of Trial : 24th to 26th October 2005 Date of Handing Down Judgment : 19th January 2006 JUDGMENT 1.The Applicant in this Action applies for employee’s compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance in respect of personal injury by accident arising out of and in the course of employment, which occurred on 2ndApril 2003. 2.The Applicant’s case is that arising from the accident on the 2nd April 2003, he suffered a crack fracture of his right femur. The crack did not produce separation of the fracture ends. His medical doctor Dr. Pang failed to diagnose this crack on 3rd and 8th April 2003 when the Applicant attended at his clinic for treatment. On the evening of 11th April 2003 the facture site suddenly gave way, and displaced, whilst the Applicant was stepping out of the bathtub after a bath at home. The Applicant claims that the fracture was caused by the accident on the 2nd April 2003 and the displacement of the ends of the fracture on the 11th April 2003 was a direct cause of the accident on the 2nd April 2003. 3.There is no dispute that the Applicant was the employee of the Respondent at the material time. The Respondent disputes that an accident occurred arising out of and in the course of work on the 2nd April 2003. Further, if the Court found that the Applicant suffered the accident arising out of and in the course of employment on the 2nd April 2003 as claimed, the Respondent’s case is that the Applicant has not established a causal connection between the accident on the morning of 2nd April 2003 and the injury or incapacity which forms the subject of the claim arising from an incident of the separation of the fractured ends of the right femur on 11th April 2003. The Issues 4.The issues of the trial are as follows:
The Accident on 2nd April 2003 5.The Applicant gave evidence that he was employed by the Respondent as a driver and a delivery worker. The Respondent was a meat supplier. Its major customer was Wellcome Supermarket. His duty was to deliver meat to different customers, usually Wellcome Supermarket at different locations. He worked from 4:00 a.m. to 4:00 p.m. every day. He drove a 5.5-ton truck, which had a fridge, installed at the tail of the truck. His task was to deliver frozen meat, which was contained in plastic trays, a photograph of which is seen at page 126 of the Trial Bundle (“TBD”). Each tray of meat would weigh about 30 kg. Each order may require as much as 20 trays of meat to be delivered. He would place about 4 to 5 trays on an iron trolley provided by the Respondent and push the trolley to the delivery point and carry the trays inside the delivery points. 6.On 2ndApril 2003, he went to work at 4:00 a.m. as usual. At 8:30 a.m., he was instructed to deliver 6 trays of meat to Wellcome Supermarket at Tat Chee Road, Yau Yat Tsuen. Each tray weighed about 30 kg as usual. He needed to deliver the goods via the main entrance. There were about 4 steps in front of the main entrance. He parked the truck nearby. Then he climbed into the tail of the truck to pull out the meat trays to be delivered. Then he jumped down from the tail of the truck to the ground (about 4 feet in height) and took the trolley out from the truck tail. He jumped down from the truck tail because it was the fastest and the most convenient way and the schedule was tight as he took up the duties as both a driver and a delivery worker. There was a step at the tail of the truck about 2 feet above the ground. However, the step had no handle to hold onto to climb down. Therefore, he had to jump down from the truck. When he jumped down to the ground, he had no unusual feeling. He just felt a slight numbness in his sole. 7.After he jumped down to the ground, he moved the 6 trays of meat onto the trolley. Then he pushed the trolley into the entrance of the supermarket to go underneath the stairs. 8.He successfully moved 3 trays of meat to the top of the stairs. Therefore, he continued to move the other 3 trays of meat in the same way. When he was holding one tray of meat using his right hand and was about to move his body from the right to the left, he felt a sprain in his left thigh. He immediately felt immense pain from his thigh to his knee joint. 9.He had his breakfast (or lunch) that morning at about 9:30 a.m. He started feeling the pain over his right thigh intensified. He noticed his right thigh started swelling. However, as there were other goods for him to deliver, he continued to deliver the goods after he had his lunch at 10:30 a.m. 10.When he finished delivering all the goods at 4:00 p.m. He noticed the swelling of his right thigh was very serious. He said to the assistant female manager Yu Yuk Ying that he twisted his leg in the morning, and his leg was swollen. He also let her see the swelling part. He asked her whether he was allowed to consult the company doctor as he hoped he need not have to pay the consultation fee. She said to him when looking at his swollen thigh that with the extent of such swelling of his leg, he should consult an orthopaedist instead of the company doctor as the company doctor was only a general practitioner. Under these circumstances, he reported the incident to the 2 managers Yu Chi Lik and Chan Pak Kau. He said to them that he twisted his thigh at work in the morning and requested to take a day off to consult the doctor. They approved his application. 11.On 3rd April 2003 he saw Dr. Pang and briefly told him what happened the day before. Dr. Pang examined him and told him he had sprained his thigh. He gave him a pain-killing injection. He also prescribed some medicine and transferred him to Mr. Mak Shiu Keung Johnny (“Mr. Johnny Mak”) for physiotherapy treatment. He granted him sick leave up to 8th April 2003. Dr. Pang did not take an X-ray of him. The doctor did not tell him to stop working or that he should not walk or lift heavy items. The doctor just told him to take more rest. After he left the clinic of Dr. Pang, he went to Mr. Johnny Mak for physiotherapy treatment. 12.On 4th April 2003, he rested at home and went to Mr. Johnny Mak for physiotherapy treatment. At that time, he felt the pain over the thigh lessened a bit. However, there was still swelling over his thigh. 13.On 5th April 2003, he returned to work. The pain was lessened though there was still pain over the thigh, which was still swollen. 14.On 6th and 7th April 2003, he continued to work. On these two days, no duties of driving a truck were assigned to him in the afternoon session (i.e. after 11:00 a.m.). He was only assigned to deliver goods. Although he still felt pain, he completed what had been assigned to him. 15.On 7th April 2003, he received physiotherapy treatment after work. At that time, his pain was very serious. He told Mr. Johnny Mak his thigh was very painful. 16.On 8th April 2003, the pain and swelling of his leg were much more serous. After work he attended follow-up treatment at Dr. Pang’s clinic. 17.After consulting Dr. Pang, he stayed at home to rest after 9th April 2003 as his swelling and pain intensified. At the time, he encountered difficulty even in walking. He did not leave home except for attending physiotherapy treatment on 10th and 11th April 2003. 18.At about 9:00 p.m. on 11th April 2003, he took a shower after dinner. After he finished showering, he tried to walk out from the bathtub. Suddenly, he heard a “click” sound and noticed that his right thigh deformed. Then, there was immense pain. He shouted for help at once and his girlfriend came to assist him immediately. 19.They went by ambulance to the Accident and Emergency Department of Tuen Mun Hospital. Medical Treatment after 11th April 2003 20.Upon X-ray of his right femur it was discovered that there was a fracture of his right femur. The Applicant was required to be hospitalized immediately. There was fixation of a splint over his right thigh. A cyst in his right femur was discovered at a site above the fracture. Bone tumour with pathological fracture was suspected. On the 17th April tests were conducted on it and it was discovered that it was not malignant. 21.On 3rd May 2003 surgery was done for internal fixation of right femur fracture. He was discharged on 8th May 2003 with crutches. He was regularly followed up at the orthopaedic clinic. Physiotherapy was also prescribed and taken. There was gradual healing of the fracture although there was still knee stiffness. 22.On 10th November 2003 the Applicant was admitted to Tuen Mun Hospital for further management and manipulation under anaesthesia. After surgery and under anaesthesia his right knee could be passively flexed to 130 degrees. Present Complaints 23.The Applicant has the following discomforts:
Notification of the Accident 24.The Applicants stated that on the date of the accident, namely on 2nd April 2003, he reported the accident to Yu Chi Lik and Chan Pak Kau before knocking off work. He informed them that he sprained his thigh when delivering goods. At that time, he requested to take 2 days leave so that he could consult a doctor. He then saw another colleague “Tai Keung” had marked on the drivers’ calendar to take the day off on 3rd April. He therefore immediately called “Tai Keung” and told him that he was injured and wanted to switch leave with him to consult a doctor. “Tai Keung” agreed to his request. He told Yu Chi Lik and Chan Pak Kau he could switch the leave with “Tai Keung” and asked to take 2 days off to consult a doctor. Yu Chi Lik and Chan Pak Kau approved his application at that time. 25.On 5th April 2003, he returned to work. During 5th to 8th April, his leg was still very painful when he was working. He was walking in a limping gait. He believed everyone in the whole department knew his leg was injured. At that time, he did not give a report of injury at work to the company. He thought he just sprained his leg and would recover in a few days. 26.On 8th April 2003, after he finished a day’s work at about 4:00 p.m., the pain and the swelling of his leg was much more serious. Therefore, he told Yu Chi Lik that his leg was very painful and wished to take leave to consult the doctor again. Yu Chi Lik said to the Applicant that if he wished to take leave again the Applicant had to apply to the office. Therefore, the Applicant called the office. A lady answered his call. He told her his name and told her he was working at the “fridge”. He told her he had injured his leg and wished to take leave to consult the doctor. That lady told him not to return to work until after recovery. He therefore told Mr. Yu he had applied to the office for leave and then he left the company and went for follow-up treatment at Dr. Pang’s clinic after work. 27.On 11th April 2003, i.e. the date when he was admitted to Tuen Mun Hospital due to a fracture of femur, at about noon time, his “Ah Tau” (supervisor) Chan Chi Keung, called him. Chan Chi Keung asked him when he could return to work. The Applicant thought at that time that he could return to work after another 2 to 3 days’ rest. Therefore, the Applicant told him he should be able to return to work the next Monday. At that time, he of course did not know the fracture of femur would occur at night. 28.The Applicant stated that while he was hospitalized, Mr. Yu Chi Lik called him one day. At that time, the Applicant had not undergone the operation for fracture. Yu Chi Lik enquired about his condition. The Applicant told him that his right femur had been fractured. He was hospitalised and preparing for an operation. Yu told him to take a good rest until recovery. Yu Chi Lik told him “the company would not recruit anyone and reserve the post for him”. After this conversation, the call was transferred to 2 to 3 other colleagues in the company and there was a short conversation before the phone was hung up. 29.One day at the end of June or the beginning of July, manager Chan Pak Kau came to the Applicant’s home. At that time, Chan Pak Kau brought along a bundle of documents and told the Applicant that the company required him to sign the documents. The Applicant saw that the documents were a bundle of staff leave application forms like those leave application forms attached to the witness statement of Ms. Tsang Choi Wan. The information thereon had already been filled in. Chan Pak Kau requested the Applicant to sign on them. The Respondent usually would require the staff to sign these staff leave applications once every 2 to 3 months. He signed these. Then he saw a “voluntary resignation letter”. He asked Chan Pak Kau, “Did the company say to reserve the post for me? Why do I have to sign the resignation letter?” Chan Pak Yau said he did not know. The Applicant would not sign on it. The Applicant said he might obtain legal advice before making any decision. At the same time, Mr. Chan Pak Kau gave him a copy of a tax return. At that time, the Applicant did not read the content of the tax return in detail. However, the copy of the tax return given by Mr. Chan Pak Kau to him was the one attached to the witness statement of Ms. Tsang Choi Wan. At that time, Mr. Chan Pak Kau also gave me $1,500. Mr. Chan Pak Kau told him to take it was given to the Applicant by the company but did not know what the sum represented. 30.The Applicant did not submit a formal report of the accident at work to the Respondent because the Applicant thought that the injury suffered by him was a sprain and would get better soon. When he suffered the fracture of his right femur on the 11th April, at the time of the incident he did not realize that this was connected to the accident he suffered at work on 2nd April 2003. He thought that as the incident on the 11th April happened at home, it was not an industrial accident. He therefore did not serve any notice of industrial accident on the Respondent. He only realized that the two events could have a connection after he consulted a lawyer from the free legal advice scheme at the District Office and was so advised by a lawyer. He then reported the accident to the Labour Department and filed the Notification of Industrial Accident there on 17th July 2003. He also took a copy of this to the Respondent. He handed it to Chan Pak Kau at the Respondent company and requested him to give it to the Respondent through Yu Chi Lik. In the afternoon he received a telephone call from Yu Chi Lik who told him that the company would not accept his application as the accident happened at home. He also told the Applicant to liaise with the Respondent direct and not to go through him. After a few days he went to the Respondent Company to retrieve the said form and he then sent it by registered post to the Respondent after a few days. Leave Application 31.The Applicant stated in evidence that when drivers take leave, they have to mark with their name, the dates they want to take leave on a calendar posted at the place where the drivers gathered. Usually only one driver would be allowed to take leave on a day. Leave application forms were not a necessary formality to be completed immediately and could be completed after the leave had been taken. Usually the company would ask the driver to sign leave application forms every few months. 32.He said although according to contract he was given all statutory holidays yet by an oral agreement with the Respondent he agreed to take only two days statutory leave each month. All leave apart from 7 days annual leave was unpaid leave. Disputed Facts 33.The Respondent called four witnesses. They are Yu Chi Lik, who was a Manager and 50% shareholder as well as Director of the Respondent, Yu Yuk Ying, elder sister of Yu Chi Lik, a Deputy Manager of the Respondent, Tsang Choi Wan, Personnel Manager of the Respondent and Chan Pak Yau the former Manager of the Respondent. 34.Yu Chi Lik stated that he did not notice any limping or any other evidence of injury in the Applicant on 2nd April 2003 or thereafter. Both, he, Yu Yuk Ying and Chan Pak Yau deny that the Applicant had notified them of the accident on 2nd April 2003. 35.Chan Pak Yau denied that he had ever gone to the Applicant’s home with a pile of leave application forms and a resignation letter to ask the Applicant to sign in or about end of June or July 2003. 36.Yu Chi Lik denied that he telephoned the Applicant whist he was in hospital at a time between mid April and 3rd May 2003, as alleged by the Applicant, and spoke to him before the Applicant’s operation and also told the Applicant that the Respondent would save his job for him and would not dismiss the Applicant. 37.Yu Yuk Ying denied that the Applicant had on 2nd April 2003 told her that he suffered the injury arising from the accident. She said she did not talk to him. The Applicant said that she worked in the Tuen Mun office and before and after work he would go to the Tuen Mun office and would often see her there. 38.Yu Chi Lik, Chan Pak Kau and Yu Yuk Ying stated that they did not know of any injury suffered by the Applicant arising from an accident suffered by the Applicant on 2nd April 2003. 39.Related to leave application, Yu Chi Lik stated that there was a calendar in an area where drivers congregated and drivers would write their leave dates on the calendar. He stated that immediately thereafter, the driver would have to telephone the office and also fill a leave application form. 40.Tsang Choi Wan in her witness statement stated that all drivers enjoyed paid statutory holidays and also 7 days paid annual leave. However it was clear that the Applicant’s terms of contract with the Respondent stated clearly that his statutory holidays were unpaid leave. She disputed the Applicant’s evidence that there was an oral agreement between him and the Respondent, which restricted his statutory holidays, that he could take to two days per month. She also stated that the Applicant had to file leave application forms at the end of the month before the month when leave is taken. She stated that the Applicant had filed a leave application form on 30th April for paid leave on 3rd and 4th April and an application form on 2nd April for leave from 9th April to 30th April for unpaid leave. In fact the evidence actually the contract of employment of the Applicant shows that the leave for 3rd and 4th April must have been unpaid leave and Tsang Choi Wan’s evidence that it was paid leave is incorrect. Tsang Choi Wan contradicted the Applicant’s evidence that the leave application forms for leave on 3rd and 4th April 2003 and 9th to 30th April 2003 were signed by the Applicant when Chan Pak Kau brought these forms on the visit made by Chan Pak Kau to the Applicant’s home at the end of June or in July 2003, after the Applicant’s discharge from hospital. 41.Tsang Choi Wan also stated in her Supplemental Witness Statement that she had never been given a copy of the Notification of Industrial Accident signed by the Applicant apart from the copy sent from the Labour Department to the Respondent in the post. She said that no one told her the Applicant submitted such a form to the Respondent. She also stated that no staff of the Respondent would refuse to accept such a document but they would always have to accept such documents to deliver it to her for her to deal with. She also stated that the Respondent did not receive this form sent by the Applicant through the registered post. However, when she was confronted with the Certificate of Posting of a registered letter in support of the Applicant’s allegation that he sent this document to her by registered post, she then stated that she had received this Notification of Industrial Accident by registered post from the Applicant. She sought to explain her categorical statement in her witness statement that she had not received this by saying that her solicitor misunderstood what she said. 42.Tsang Choi Wan stated that no one knew of the injury suffered by the Applicant on 2nd April 2003 and the Applicant simply disappeared from work on 9th April without notice to anyone. No one knew the Applicant was in hospital. She and staff at the Personnel Department tried to telephone the Applicant at his mobile phone number to find out about the situation but could not contact him. 43.At the end of June 2003, she notified the Inland Revenue and the MPF provider that the Applicant had resigned from the Respondent Company. She referred to the Inland Revenue Department notice of resignation of employment of employee dated 30th June 2003, which she filed with the Inland Revenue Department. This is at page 196 of the TBD. The 1st Issue 44.All through his evidence, the Applicant was straightforward and gave direct answers to questions. It appeared to me that he was a straightforward witness. His evidence related to the accident on 2nd April 2003 is supported by clear evidence of complaint made shortly after to Dr. Pan Kin Wai on 3rd April 2003 when the Applicant went to consult the doctor. The medical report of Dr. Pang stated that he saw the Applicant on 3rd April 2003. Dr. Pang wrote that the Applicant “complained of pain in his right thigh, which he said had been caused by jumping down from a truck on 2nd April 2003. He said the pain was located over the inner side of his right thigh, but he was still able to walk and drive his truck normally.” 45.The physiotherapy report at page 147 of TBD, by Mr. Johnny Mak who treated the Applicant from 3rd to 11th April 2003 stated that the Applicant “suffered an injury on 2nd April 2003”. 46.The honesty of the Applicant can be seen in his account of the incident on the 11th April 2003 to the Department of A. & E. of Tuen Mun Hospital when treated by them on 11th April 2003. He told them that “he suffered severe right thigh pain after a minor sprain on getting out of bath tub”. His story that he suffered the incident on the 11th April at home was consistent as well. He did not try to embellish the story. 47.The Applicant’s account of the accident on the 2nd April 2003 has been consistent. I find that it is highly unlikely that he could have fabricated the account of the origin of his pain when he reported it to Dr. Pang. The Applicant said he took leave of absence for the dates of 3rd and 4th April 2003 on the 2nd April 2003 and informed Yu Chi Lik of the reason for the leave in the afternoon after the accident on 2nd April 2003. In my view, it is highly unlikely that he would have taken leave for those two days on the 30th March 2003 for he would not have anticipated the accident on the 2nd April 2003 on the 30th March 2003. It would have been too much of a coincidence for the Applicant to have taken leave on 30th March 2003 for the days of 3rd and 4th April 2003, and again to take 22 days unpaid leave on 2nd April 2003 as alleged before he actually discovered days later that he needed the time of leave for treatment or recovery. I therefore accept the Applicant’s account of the occurrence of the accident on 2nd April 2003 as true. 48.The Respondent’s Counsel argued that I must consider the Applicant’s evidence of the accident on the 2nd April 2003 in the background of his account of what happened after his injury on the 2nd April 2003. He submits that the Applicant’s evidence is contradicted by Yu Chi Lik, Chan Pak Kau, Yu Yuk Ying and Tsang Choi Wan. These four witnesses of the Respondent were occupying senior managerial positions. Yu Chi Lik was a 50% shareholder and Director of the Respondent and Yu Yuk Ying is his elder sister. Tsang Choi Wan is the wife of one of the staff and Chan Pak Kau is the brother of Chan Chi Keung, also another senior staff of the Respondent. The Respondent’s Counsel poses the question, “could they have all lied so blatantly?”. 49.Yu Chi Lik upon cross-examination by the Plaintiff’s Counsel admitted that as he is the Director of the Respondent Company. If the Applicant suffered an injury at work, the Applicant had to inform him. When he was questioned whether he could remember that on the 5th to 8th April 2003, when the Applicant came to work he was limping, he said he did not quite remember. When asked that as he was the Applicant’s immediate boss, if the Applicant was limping he should have seen it. Yu Chi Lik said “Do not remember”. He was asked if the Applicant said he was limping on the 5th to 8th April, he was in no position to deny this evidence as he said that he could not remember. Yu Chi Lik said “Could say so.” Yu Chi Lik stated that he allocated duties to the Applicant and knew his mobile number. It was put to him in cross-examination that as he had the Applicant’s mobile number, he must have telephoned the Applicant if he did not turn up for work in order to find out why he did not come to work. In my view, this would be particularly the case if he had not been notified by the Applicant on the 2nd April 2003 of the accident and again on the 8th April 2003 of the pain suffered by the Applicant and received his application for leave. He replied, “No”. He insisted that he did not telephone the Applicant to seek to find out from the Applicant why he did not turn up for work. He said even when the administrative section in the office asked him why the Applicant did not turn up for work, he did not make any effort to telephone the Applicant. I find this unbelievable as the Respondent had only about 10 drivers and it must be the case that if one driver did not turn up for work it would upset the roster and work assignments to drivers would have been affected. It was Yu Chi Lik who assigned work to the Applicant. Unless Yu Chi Lik already knew of the injury suffered by the Applicant on the 2nd April 2003 and again received the Applicant’s application for leave on 8th April 2003, it would not be reasonable behaviour not to contact the Applicant. I therefore find the Applicant’s version of evidence more credible and that Chan Chi Keung telephoned him on the 11th April 2003 to find out when he would come back to work and also Yu Chi Lik telephoned him when he was in hospital to enquire after him. 50.Tsang Choi Wan had given evidence, which had been inconsistent with her witness statements as referred to above. She had stated that the Applicant had all along been given paid statutory leave and had applied for paid leave on the days of 3rd and 4th April 2003. When faced with the Applicant’s employment contract at page 193 of TBD she had to admit that the Applicant’s statutory holidays were unpaid. Further she stated that she did not receive the Applicant’s Notification of Industrial Accident sent by the Applicant by registered post in her witness statement and when faced with the Certificate of Posting of Registered Post she had to retract that and state that she did receive it but her solicitor misunderstood her when he drafted her witness statement. In my view she is not a reliable or credible witness. 51.Chan Pak Kau stated that he did not visit the Applicant to deliver the leave application forms and the letter of resignation to the Applicant to sign and he did not deliver $1,500 to the Applicant as stated by him. The Respondent’s position that the Applicant applied for leave on 3rd and 4th April 2003 on 30th March 2003 and unpaid leave on 2nd April 2003 for the period from 9th to 30th April 2003 does not make sense, for how would the Applicant on the 30th March 2003 have known that he would be injured on 2nd April and on the 2nd April 2003 he would not have known that he needed a long period of rest from 9th to 30th April 2003 so as to require him to take such a lengthy period of unpaid leave. The Applicant’s evidence that he orally applied for the leave for 3rd and 4th April on 2nd April and signed the leave application forms for the leave for 3rd and 4th April and from 9th to 30th April when Chan Pak Kau brought these to him at the end of June or in July 2003 is more credible. It is likely that Chan Pak Kau went to the Applicant’s home to cause the Applicant to sign the documents including the notice of resignation at the end of June 2003, for at about that time Tsang Choi Wan had been wanting to deal with the Applicant’s resignation as she stated that on 30th June 2003 she gave notice to the Inland Revenue and to the MPF provider that the Applicant had resigned. The Applicant himself at the time did not think he had any case of employee’s compensation against the Respondent. It would not be surprising for him that he did not take great care when signing the leave application forms. However to sign a letter of resignation is another matter and he needed legal advice before he could sign that. 52.Yu Yuk Ying is the elder sister of Yu Chi Lik, the 50% shareholder of the Respondent. It seems to me that she may not be entirely disinterested in the outcome of the case. I am of the view that her evidence that she did not see the Applicant on the evening of 2nd April 2003 when she told her he had suffered an injury is not credible. It is highly improbable that she did not know of the Applicant’s injury as was her evidence, as the Applicant’s girlfriend worked under her and it would have been natural for the Applicant’s girlfriend to mention this. 53.From the medical report of Dr. Pang whom the Applicant saw on 3rd April and 8th April and the report of the physiotherapist Mr. Johnny Mak, it seems that the Applicant must have suffered pain after the accident on the 2nd April 2003 and between 5th and 8th April 2003 on the days when he was at work doing heavy laborious work. It is highly unlikely that he did not tell Yu Chi Lik his immediate supervisor on the afternoon of the 2nd April and the 8th April that he was in pain and needed to take leave. It is more likely than not that he told Yu Chi Lik and Chan Pak Kau about his injury and his pain and that he asked them for leave as recounted by him. Despite careful consideration of the evidence, I find that the four witnesses of the Respondent are not truthful nor reliable. 54.On the basis that I find the Applicant to be a credible and reliable witness and also the Applicant’s account of the 2nd April 2003 is supported by the contemporaneous report of the accident given to Dr. Pang as stated in his medical report and the account given to the physiotherapist Mr. Johnny Mak as stated in his report. I accept that the leave from work on the days of 3rd and 4th April 2003 is on the balance of probability applied for by the Applicant on the 2nd April 2003 and the Applicant applied for leave for the dates from 9th April orally on 8thApril 2003. I accept the Applicant’s version of evidence as regards notification by him to Yu Chi Lik, Chan Pak Kau and Yu Yuk Ying of the accident and his injury. I accept his evidence that his boss Chan Chi Keung telephoned him at noon on 11thApril 2003 to enquire when he could return to work. Also after his hospitalization Yu Chi Lik called him when he was in hospital and the Applicant told him about his situation. I find that in his state of fear and anxiety in relation to his health and his uncertainty as regards his own condition, it is not surprising that from the date of his hospitalization he was in no mood to initiate contact the Respondent to keep them regularly informed of his condition. However I accept his evidence that the Respondent was informed in the way stated by him as referred to in his evidence. However since discharge from hospital and before Chan Pak Kau came to visit, he did not notify the Respondent of his condition because his prognosis related to his ability to work in his former job must have been still uncertain. The evidence of the Applicant had been consistent all along. 55.Having accepted the evidence of the Applicant I find that the accident on 2ndApril 2003 did occur in the way described by the Applicant. I accept the medical opinion of Professor C. P. Pang of Chinese University and Dr. Danny Tsoi who stated in their respective reports, that the Applicant suffered a pathological fracture of right femur, which caused a minor cortical break, which did not cause a separation of the fractured ends, from the accident on the 2 April 2003. Both medical experts came to the same opinion upon careful consideration of all facts, symptoms and medical reports. Their opinions are sound. The 2nd Issue 56.The Respondent’s Counsel submitted that there must have been another accident on the 11 April 2002, which precipitated the separation of the fractured ends of the right femur. He relies on the opinion of Dr. Danny Tsoi who stated that he suspected that “Mr.Chan might have another twist while he was getting out from the bathtub on 11 April 2003. This caused complete separation of the fracture”. 57.The Respondent’s Counsel also cross-examined the Applicant on the medical report from Tuen Mun Hospital dated 23 September 2003 at page 140 of TBD, which states, “He complained of right thigh pain after a minor sprain on getting out of bathtub.” 58.When asked whether he told the Tuen Mun doctors that he had a slip or fall at home in the evening on the 11th, his initial answer was that “It should be the case that I did not tell anybody.” In Cantonese it was “我應該無咁講”. 59.But then the Applicant said when he told the Tuen Mun doctors that he did not fall, slip or knock on anything, the Tuen Mun doctors said “it is impossible, if it was not due to those things, bone would not be fractured.” 60.He was also cross examined on the report of the Physiotherapist Ms. Yip Lai Ming of Yan Chai Hospital at page 138 of TBD which states, “The above named patient was diagnosed with fracture of right femur which was caused by slipped and fell at home”. 61.When the Applicant was asked, “Did you tell Miss Yip or the first Yan Oi physiotherapist that you got a fall or slip at home”, he answered “Well, there is a possibility that I did.” 62.When further asked why was it possible that you so told them that there was a slip or fall, he answered “I cannot really recall”. He was also cross-examined on the Medical Report at page 139 of the BD and asked whether he told the A. & E. Department at Tuen Mun Hospital that he had a domestic accident. He stated that he told them that he stepped out of the bathtub and the leg was broken. 63.It would be helpful to see the various medical reports related to the incident on 11th April 2003 in sequence to seek to find out what the Applicant told the medical officers and physiotherapists at different times in order to consider whether the Applicant’s evidence related to the 11th April 2003 event could be true. The sequence of the series of medical consultations appears to have started from the time of consultation with the A. & E. Department of Tuen Mun Hospital. From there he was transferred to the Orthopaedics & Traumatology Department of Tuen Mun Hospital. It was after the Applicant’s discharge from hospital that he attended Yan Chai Hospital for physiotherapy on 5thJune 2003. 64.The Medical Report of the A. & E. Department of Tuen Mun Hospital is at page 139 of the BD. There it states “The above-named attended the Accident & Emergency Department of Tuen Mun Hospital at 2157 hours on 11.4.2003 for alleged domestic accident.” “Domestic accident” is an all-embracing term and could include the incident of a spontaneous break of the fracture site upon stepping out of the bath. 65.The report of the Orthopaedics & Traumatology Department of the hospital at pages 136 to 137 of the BD dated 27thMay 2003 contained a medical noteat page 136 under Medical Notes: at the bottom of the report, it is stated,
66.It is clear in the medical notes dated 27thMay 2003, the Applicant had told the doctor who attended to him that day that there was no definite history of trauma on the 11thApril 2003. 67.There is another report of Dr. Wong Hok-leung of the Orthopaedics & Traumatology Department at pages 140 and 141 of the BD. In this report, it says that the Applicant “complained of severe right thigh pain after a minor sprain on getting out of bathtub”. A minor sprain is something that is not significant. In fact the Applicant said that when he told the medical doctors that there was a spontaneous break of the right femur they tell him that it could not be the case and said to him that there must be a fall or some trauma. Yet he told them there was no fall, slip or knocking against an object. It may have been in such interchange that the minor sprain was put in. It was clear that he had told the doctors of this Department clearly that there was no trauma preceding the incident on the 11th April 2003 as is reflected in the medical report dated 27th May 2003. 68.Even if there were no trauma stated by him immediately before the fracture, common sense would show that a separation of the fractured parts of the right femur could cause the right foot to suddenly fail to take the weight and slip or feel like a slip. Hence it would not be surprising that there would be a slip that would accompany the separation of the fractured ends but the slip occurred as a result of the separation of the fractured ends of the fractured femur and the time sequence of the separation of fracture and the slip must be almost split second. 69.I find some assistance from this hearsay statement given to the Labour Department found at pages 181 to 192 of the BD. This statement states the Applicant’s account of the events of the accident on 2nd April and 11th April 2003. This account of events is quite consistent with his evidence in Court. In relation to the incident on the 11th April 2003, the English certified translation of which is at the last paragraph of page 188 of the BD, he states, “…on that evening at about 9:00 p.m., I went to the bathroom. After showering, when my right leg stepped out of the bathtub and then my left leg stepped out, the right leg suddenly slipped (but my right leg did not hit anything). There was sudden fracture over my right knee near the thigh.” The Applicant was not asked in evidence in relation to this. Despite being fully aware that this statement is only hearsay, I find that some weight could be put on it as it shows what could have happened even if there was a spontaneous break of the fracture site, that there would be a slip at the point of fracture and the moment of the slip and the separation of the fracture would be almost instantaneous. In my view, this probably explains the account given to the physiotherapist at Yan Chai Hospital on which the Applicant was cross-examined. Being honest and frank he stated that he probably told the physiotherapist what was stated in the report. It is highly likely that he said that when he was questioned as to how he could have had a spontaneous separation of the fracture site without a slip or a fall and he then referred to a slip and a slip would also involve something that feels like a fall. 70.If the fractured ends of the right femur separated on normal taking of a step and normal action, the cause of the separation could not have been any other accident but the cause is more likely than not the existing fracture of the right femur caused by the accident on the 2ndApril 2003. A mere turn of the body or a twist of the body would not normally have caused a fracture were it not for the pre-existing fracture and hence could not be an accident because it is a normal move or turn of the body. 71.The Respondent’s Counsel argue that the Applicant had been able to carry heavy things after the accident on the 2nd April 2003 without causing a separation of the fractured ends. It did not make sense that a mere stepping out of the bathtub could have had this effect. He argued that a fracture could not have been caused by the accident on the 2nd April 2003 and that there must have been a traumatic accident on the 11th April 2003, which caused the injury suffered by the Applicant. When considering this argument, I bear in mind the findings of Prof. C.P. Leung at para. I e) at page 5 of his report where he says,
Prof. C.P. Leung’s explanation which I accept as reasonable and sensible answers Counsel’s argument. 72.Dr. Tsoi at page 167 of TBD and page 7 of his report. At para. 3. he states,
Dr. Tsoi was of the view that despite the fracture the Applicant was able to bear weight. It was obviously the case that the pain level suffered by the Applicant after the minor cortical break was not so severe as to stop him from bearing weight and working. 73.Dr. Danny Tsoi has had the four medical reports from Tuen Mun Hospital and the report of the physiotherapists from Yan Chai Hospital referred to aforesaid. Despite that he came to the conclusion that he did that there was a spontaneous separation of the fracture site but he suspected that it might have been preceded by another twist while he was getting out from the bathtub on 11th April 2003. He did not doubt that there could have been a spontaneous separation of the fracture site at that point. I fully comprehend the reasoning of Defence Counsel. However with the helpful comments of the medical experts I find that it is possible to see that the Applicant’s version of evidence is feasible and in all probability true. I have come to the conclusion despite consideration of all the aforesaid that the Applicant is a truthful witness. It seems to me a matter of common sense that with continued strain the fracture could get to the point that it could be easily separated by slight movement or strain. 74.Having set out the evidence aforesaid and arguments on what could have happened on the 11th April 2003, at the end of the day the issue I have to decide is whether there is a causal connection between the incapacity arising from the injury suffered by the Applicant on the 11th April 2003 and the accident on the 2nd April 2003. The law related to this is clearly stated by the Respondent’s Counsel who referred to the principles on causation, which are well settled and succinctly stated by Hunter JA in Lee Kin Kai v. Ocean Tramping Co. Ltd. [1991] 2 HKLR 232 which he quoted as follows:
75.In my view the causal connection between the accident on the 2nd April 2003 and the injury suffered by the Applicant on the 11th April 2003 is clear. According to medical evidence of Professor C.P. Leung and Dr. Danny Tsoi, both the medical specialists came to the same conclusion that the Applicant suffered a minor cortical break, which was a pathological fracture arising from the accident on the 2nd April 2003. Dr. Danny Tsoi specifically stated that the Applicant’s jump from about 1.2 metre could give rise to the pathological fracture. Both medical experts were of the view that on the 11thApril 2003 the cortical fracture gave way suddenly. Although Dr. Tsoi stated that he suspected that the Applicant might have had another twist whilst getting out from the bathtub, there is no evidence of this having taken place, even if there were such a twist, the question to be asked in this issue is, what was the substantial contributing cause of the injury suffered by the Applicant on the 11th April 2003. A cause is sufficient, it need not be shown to be the sole cause. 76.It seems clear that the substantial contributing cause of the injury was the cortical fracture at the right femur, which was caused by the accident on the 2nd April 2003. Without this cortical fracture of the right femur common sense would dictate that a mere twist of the body or minor sprain would not have caused the separation of the fractured ends of the femur. The cortical fracture of the right femur may not be the sole cause of the injury on11thApril 2003. This cortical fracture may have been intensified by continued weight bearing on the right leg or continued use of the right leg without support. However the inescapable conclusion is that without the cortical fracture that arose from the accident on the 2nd April 2003, the separation of the fracture would not have occurred and the cortical fracture that arose from the accident on the 2nd April 2003 was a substantially contributing cause of the injury that occurred on the 11th April 2003. 77.On that basis I come to the conclusion that there is a causal connection between the accident on the 2nd April 2003 and the injury caused to the Applicant on the 11th April 2003. On this basis, The Applicant has established liability in respect of this claim against the Respondent. Quantum 78.It is common ground that the Applicant was earning $14,000 per month at the time of the accident. 79.The Applicant’s claim is thus:
80.The Applicant also claims interest on the total compensation awarded at half of the current judgment rate from the date of the accident until judgment and thereafter at judgment rate until payment. 81.Judgment for the Applicant against the Respondent in the sum of $374,732 together with interest at half judgment rate from date of the accident until judgment and thereafter at judgment rate until payment. I grant an order nisi that costs of the action be to the Applicant to be taxed if not agreed with Certificate for Counsel. The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.
Representation: Miss Phillis Loh instructed by Messrs. Christine M. Koo & Ip assigned by D.L.A. for the Applicant. Mr. Bernard Yuen instructed by Messrs. Day & Chan for the Respondent. |
Further hearings and rulings under DCEC 1170/2004