Khan Aslam v. Wastech Engineering International Ltd
Read the full judgment text of DCEC 633/2004 on BabelCite. This District Court judgment.
1. The Applicant was an employee of the 1 st Respondent and he claims compensation arising out of an accident he incurred in the course of employment.
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DCEC 633/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 633 OF 2004 -------------------- IN THE MATTER OF AN APPLICATION BETWEEN
-------------------- Coram: Deputy District Judge Wesley Wong in Court Dates of Hearing: 25th - 27th April 2006 Date of handing down Judgment: 18th May 2006
______________________ J U D G M E N T ______________________ 1.The Applicant was an employee of the 1st Respondent and he claims compensation arising out of an accident he incurred in the course of employment. The Applicant’s case 2.The Applicant claims that on 3 November 2003 while working at a slope in the Penny’s Bay Disney Land (Area 26) construction site he slipped and fell from the slope about 10 meters high to an uncovered drainage channel about 1 meter deep and was injured. The Defence 3.The 1st Respondent’s case is that the Applicant worked under a supervisor Mr. Yu Pang Shing. Yu was responsible for supervising 7 to 8 workers. He had previously warned the Applicant not to chat on his mobile phone while working. On 3 November 2003 at about 8:30 a.m. he saw the Applicant talking again on his mobile phone so he instructed him to stop talking on the phone and carry on with his work but he disobeyed the instructions. As a result he instructed the Applicant to go back to the site office to punch card and go home. The Applicant then told him he was not feeling well and said he would go to Labour Department to sue. The Applicant then walked away. 4.Yu said that there was no accident on that day in the work area he supervised. The Applicant only told him he was not feeling well not that he had an accident. The Issues 5.There is no dispute that he was an employee of the 1st Respondent. The only issues are :-
Evidence (i) The Applicant 6.The Applicant’s evidence is that at 8 a.m. on 3 November 2003 he was instructed by Yu to cover exposed pipes on a slope approximately 10 – 15 meters in length. He was about 2 meters up the slope and had been working for about 1 hour when he slipped, fell backwards down the slope on the drainage channel injuring his lower back and right leg. 7.He called out to his colleague Mohammad Fareed for help. Fareed explained to Yu that the Applicant had an accident. Yu told them to go to the site office to make an accident report. He was assisted by Fareed to go back to the site office. 8.At the site office he told a lady there about the accident. She confirmed with Yu and told him she would prepare an accident report and instructed him to go to hospital for treatment. 9.He then managed to get a lift to the bus stop and caught a bus to Tuen Mun and then a taxi to hospital arriving at about 11:30 a.m. 10.He lodged the notification of accident with Labour Department on 17 November 2003 because he believed he was still employed by the 1st Respondent. It was when he received the termination letter on 14 November 2003 that he suspected no Form 2 had been filed. 11.Mohammad Fareed said that on 3 November 2003 he worked along with the Applicant to cover exposed pipes on the slope. The Applicant fell down the slope onto the drainage channel. He went to help and called for assistance from Yu. Yu told him to assist the Applicant to the site office to report the accident. In the site office they told the lady there what happened. She asked them who was the supervisor and then she confirmed with Yu about the accident. 12.Mohammad Saglin was working near the site office. At around 9:10 a.m. he saw the Applicant being assisted to the site office. The Applicant was not walking properly and was assisted by another employee of the 1st Respondent. He asked the Applicant what happened and the Applicant told him that he had fallen down a slope to an exposed drainage channel and hurt his back and right leg. (ii) Defence 13.Mr. Yu a supervisor of the 1st Respondent said that the Applicant was one of the workers within his group. The Applicant started work on 22 October 2003. He was responsible for assisting the digging of soil. On 3 November 2003 the Applicant was working on a slope. After working with him for sometime the Applicant became lazy and began to refuse to carry out his instructions and the Applicant was warned as he always chatted on his mobile phone. 14.About 8.30 a.m. on 3 November 2003 he saw the Applicant using his mobile phone again so he asked the Applicant to stop and continue with his work. The Applicant did not obey his instruction so he asked the Applicant to go back to office to punch his card and go home. The Applicant then told him he was not feeling well and before he left he threatened that he would go to Labour Department to sue Yu. He said he did not see there was any accident and no one informed him of any accident. Later Ms. Yeung received the Applicant’s sick leave certificate and asked him about that and he informed Ms. Yeung that he did not see the Applicant had an accident and that none of the workers reported to him the Applicant had an accident. 15.Ms. Yeung who worked at the site office said that about 9 a.m. on 3 November 2003 the Applicant suddenly went back to the site office and told her he was not feeling well and needed to go to see a doctor. She told him to change and came back to punch his card. She then went to the main office and when she arrived at the site office about 5 minutes later the Applicant had disappeared so she punched the card for him. The Applicant did not go back to work again. He only asked one of his clansmen to hand her his sick leave certificate. That clansman did not tell her the Applicant had an accident. She made enquiry from Mr. Yu and Yu confirmed the Applicant had not informed him nor his colleagues of the accident nor had anyone witnessed the accident. It was only on 12 November 2003 her boss Colin Cheong and Yu told her they could not wait for him. After consulting the Labour Department they decided to terminate his employment. She said that on 3 November 2003 there were altogether 12 workers’ employment being terminated as those 12 could not meet the performance requirement. Was there an accident? 16.The evidence from the Applicant and the 1st Respondent are contradictory. The Applicant said he had an accident while Yu said the alleged accident never happened. 17.The Applicant was seen at the site office at about 9 a.m. and he left and arrived at the Tuen Mun Hospital about 11.30 a.m. After getting a lift from a truck at the site and then took a bus to Tuen Mun from Centre and then taxi. It was a considerable distance. I believe he went straight from the site to Tuen Mun Hospital. 18.In Tuen Mun Hospital the medical examination revealed mild tenderness over the lumber spine and tenderness over the right shin. 19.Counsel for the 1st Respondent suggested that there was no swelling nor redness. However he was examined by doctor who could detect through spontaneous response as to whether he faked injury. The medical report dated 12 March 2004 disclosed that the Applicant still had pain. There was severe back muscle spasm with reduced lumber lordosis. Although the doctor stated that “the overall symptom seems disproportionate with the injure …. “ still there was symptom which was consistent with the 1st finding from Tuen Mun Hospital. 20.Dr. Patrick Wong opined that the injuries sustained by the Applicant are consistent with the mechanism of injury described (slipped and fell). 21.On the other hand the 1st Respondent’s case is that the Applicant faked his injury as there was no accident. A lot had been canvassed by its counsel as to the proximity of the site where the Applicant worked and the site office however even according to the statements from its own witnesses they vary to a great extent. 22.Yu said that the Applicant disobeyed his instructions after he had been warned, he did not even inform Ms. Yeung about this. He did not notify Ms Yeung when the Applicant was on the way to the site office nor did Ms. Yeung make enquiries from him when the Applicant appeared at the site office to verify. They only started to query when they received the sick leave certificate from the Applicant’s clansman some time later. 23.Further Ms. Yeung stated that on 3 November 2003 a total of 12 workers had been sacked for not performing up to standard. If the Applicant were lazy and always used the mobile phone while working and that he disobeyed Yu’s instructions, why was he not sacked immediately or at the end of the day together with the other 12 workers? 24.By reasons above and on balance I prefer the evidence of the Applicant and find that the Applicant had an accident. Assessment of compensation 25.The Applicant earned a daily wage of $400. He had been given sick leave from 3 November 2003 to 11 August 2004 when his injury had attained maximum medical improvement. 26.The Medical Assessment Board had assessed his permanent loss of earning capacity to be 1% and on appeal the Appeal Board made the same finding. Although Dr. Wong the Applicant’s doctor opined the permanent loss of earning capacity to be 4%, the medical report from Tuen Mun Hospital dated 12 March 2004 stated “the overall symptom seems disproportionate with the injury and radiographic finding”. In the circumstances I find that 1% is the appropriate percentage and I dismiss his appeal against the Medical Board’s finding. 27.The assessment of quantum will therefore be as below:-
28.In the premise I give judgment for the Applicant in the sum of $100,139.14 with interests at 4% from 3November 2003 until 26 April 2006. 29.Order nisi: Costs to the Applicant.
Mr. John Massie of Messrs. Massie & Clement assigned by D.L.A. for Applicant. Mr. Chan Chi Hung, S.C., instructed by Messrs. Deacons for Respondents. |