So Keung v. Mak Shu Pui (Raymond) t/a Ying Chun (Wine) Trading Co

DCEC 1376/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1376 OF 2004

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IN THE MATTER OF AN APPLICATION BETWEEN

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Coram  :  Her Honour Judge C.B. Chan in Court

Dates of Trial  :  20^th & 21^st June 2006

Date of Handing Down Judgment  :  22^nd August 2006

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J U D G M E N T

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1.The Applicant claims compensation under Sections 9, 10 & 10A of the Employees’ Compensation Ordinance in respect of personal injury by an accident on 20 May 2004 arising out of and in the course of employment by the Respondent.   The Respondent does not dispute that at the time of the accident the Applicant was employed by him.   The only issue in this action is whether the injuries suffered by the Applicant was caused by an accident on the 20 May 2004, which arose out of and in the course of the Applicant’s employment with the Respondent as alleged.    The quantum of the compensation claimed is not in dispute.

Background

2.It is not in dispute that the Applicant commenced employment with the Respondent on 1 December 2004 as a storekeeper, and delivery worker and driver at the monthly salary of $6,500.00.   Since February 2004, the Applicant’s monthly salary was increased to $9,000.00.  

3.The Applicant delivered goods by driving the goods vehicle together with his employer every day and he and the Respondent would often have lunch together.   His working hours were from 8:30 a.m. to 6:00 p.m. and usually he did not complete work until 7:00 p.m.  

Evidence of the Applicant

4.The Applicant adduced his Witness Statement into evidence.  He stated that at about 2:30 p.m. on 20 May 2004, the Applicant was working at the Respondent’s premises diluting wine concentrate and pouring it into a plastic wine bin.   The plastic wine bin was a big round bin around 20 inches tall and 18 inches in diameter, see photographs of similar bins at pages 51 to 53 of the Bundle of Documents (“BD”).   This was placed beside the win concentrate.  He poured out the wine concentrate into the big round plastic wine bin and poured water into the bin to dilute it.   After doing so he placed the wine into a wooden cart.  As the bin was too heavy, weighing about 40 catties, he sprained his lower back.  He felt pain in his lower back and took a rest.   After that he continued to work and had diluted about 20 pails of wine concentrate, he pushed the wine bins on the wooden cart to the lift on the 11^th floor.   He also moved the things next to the lift to the 1^st floor car park.   He then went with the Respondent Mr. Mak on the delivery and then went home.   

5.The Applicant stated that the Respondent must have noticed that he injured himself for he said, “Be careful!”

6.The Applicant continued to work.  On 27 May 2004, he felt pain in his lower back, left thigh and left shank nerve pain.  He had difficulty in driving.   He felt severe pain when his left foot stepped on the clutch.  He had difficulty to get into and down from the vehicle.   He was of the view that the Respondent noticed that but did not say anything.  

7.He first went to see a general practitioner near his home on 27 May 2004.  The doctor offered him some medicine.   Instead of taking sick leave, he continued to work as usual. 

8.On 31 May 2004, the Plaintiff still felt pain and went to see the general practitioner again.  He was given an injection and some medication.  He did not take any sick leave.  

9.As the pain did not subside, he went to consult an orthopaedic specialist on 5 June 2004.   He was told that he might have sprained his lower back, which led to dislocation of lumber vertebrae.  It was suggested that he took physiotherapy and take leave for rest.  He was granted sick leave from 5 June 2004 to 11 June 2004.  On the afternoon of 5 June, the Applicant telephoned the Respondent asking for sick leave.  The Applicant told the Respondent the initial diagnosis of the doctor and asked the Respondent to find a replacement in the meantime.   He went to receive physiotherapy on 7 and 8 June 2004.   The result was not satisfactory.  

10.He went to the general outpatient clinic near his home for further consultation.  On 15 June 2004.   He was referred to Pamela Youde Nethersole Eastern Hospital (PYNEH) for treatment.   On 16 June 2004, he attended the A & E Department of PYNEH for medical consultation and was admitted to hospital on that day.  During the treatment, the doctor kept granting him sick leave.  He gave the sick leave certificates to the Respondent for record each time.  

11.He attended physiotherapy treatment arranged by Wing Lung Insurance Company twice a week.   From late October 2004 up to September 2005, he attended physiotherapy treatment 10 times. 

12.He was granted sick leave between 5 June 2004 and 11 January with a total 218 days.   He also incurred medical expenses.   He has retained receipts for some of these treatments and these total the sum of $3,780.  

13.He began to work part time from January 2005 and worked a number of days per month until August 2005 when he worked 16 days a month.   He now works in a shop writing invoices.   

The Defendant’s Case

14.The Defendant disputes that the Applicant’s injuries were caused by an accident that arose out of and in the course of work.

15.The Defendant gave evidence.   He adduced his Witness Statement into evidence and confirmed its contents to be true and correct.  He stated in oral evidence that the Applicant did not tell him that he suffered from an accident at work causing injury.  Under cross-examination he said that on the 28 May 2004, the Applicant told him that he suffered pain in his back but did not tell him that he had suffered an injury on the 20 May.   He stated that even though paragraph 4 of his Witness Statement stated that on the 28 May 2004, the Applicant suddenly told him that on 20 May 2004 he sprained his back, in fact the Applicant did not say that.   Even though he confirmed that he had read his witness statement before he signed it, he stated that he was a bit confused about this sentence.  He misread it and thought paragraph 4 of his Witness Statement said that the Applicant told him the Applicant had aches and pains in his back.      

16.He stated that he did not notice that the Applicant had back pain or back injury at all until the 28 May 2004 when the Applicant informed him he had back pain.   He stated that until then the Applicant worked normally.

17.He called a witness Yeung Hin Wah (“Yeung”) a warehouse keeper in Cheung Hing Lung Soya Sauce Company, which is a customer of his.   Yeung stated that he did not notice any discomfort in the Applicant when he delivered the wine to his company.  The Applicant did not tell him he had injured his back.   He came to know of it when he saw the Respondent delivering the wine himself.  He asked him what happened to the Applicant and learnt that the Applicant told Mak Shu Pui that he had injured his back at work.   

The Issue

18.The only issue is whether the injuries suffered by the Applicant was caused by an accident, which arose out of and in the course of the work of the Applicant whilst in employment with the Respondent as stated by the Applicant?   My finding in this issue depends on credibility in relation to this case.  

19.In relation to credibility of the parties, the Respondent’s Counsel submits that the Applicant is not credible for the following reasons:

1. His pattern of visits back to the Mainland to visit his wife in October and November 2004 showed that he departed Hong Kong on Fridays and returned either on Sunday or Monday.  This suggests a regular pattern of life that could not be explained by the Applicant’s evidence.  The Respondent’s Counsel questioned the Applicant why he chose to go back to the Mainland to his wife’s home during weekends in those months and returned during Monday.  The Applicant’s reply was that he needed to visit his wife and he liked to do that in the weekends.  He returned to Hong Kong in weekdays because he had to look after his mother in Hong Kong and had bills to deal with in Hong Kong.  The Respondent’s Counsel submits that this is not credible.  The Respondent’s Counsel did not question the Applicant whether he came back to Hong Kong in the weekdays for the purpose of work when he was on sick leave.  The Respondent’s Counsel stated he raised these questions with a view to cast doubt on the credibility of the Applicant.   However, as he did not ask the Applicant whether he was working in Hong Kong on weekdays during those months, the Applicant was not given the chance to give an answer on this.

2. The Respondent’s Counsel referred to the evidence of Yeung who was stated to be an independent witness.  Yeung stated that the Applicant did not appear to have suffered from any injury when he delivered the wine containers to his warehouse after 20 May 2004. Yeung stated that the Applicant did not tell him about his injury at work.  In my view, as the relationship with Yeung was not an especially close relationship, it is not surprising that the Applicant did not tell him of his injury.   As regards the fact that Yeung did not observe any difference in the Applicant’s physical appearance or manner which might lead him to guess that the Applicant was injured, this could be due to the fact that the Applicant was trying to work normally despite his aches and pain.  The Applicant appeared to be conscientious.  He may have tried to bear the discomfort in order to complete the work.  Yeung’s evidence could not rule out the possibility that the evidence of the Applicant is true.   

3. The fact that the Applicant did not tell the Respondent that he was injured on the 20 May 2004 is also referred to as an indication that the injury could not have been caused by an accident at work on 20 May 2004.   On the other hand, the Applicant’s Counsel submitted that if the Applicant wanted to lie, he could have informed the Respondent on the 28 May that he suffered an accidental injury at work on the 28 May rather than tell him that the accidental injury was suffered on the 20 May.  There is some substance to this submission of the Applicant’s Counsel. If the Applicant were lying he would have stated that the accident happened on the day he informed the Respondent of the accident.

4. According to the Respondent the Applicant did not appear to be injured on the 20 May and thereafter until he told the Respondent he had back pain and aches.  The Applicant worked as usual. The Respondent’s Counsel therefore submitted that it is unlikely that the Applicant was injured on the 20 May 2004 as alleged.   However, if the Respondent did not notice that the Applicant had aches and pains before the Applicant told him on the 28 May, could be due to the fact that the Applicant had been able to bear the pain and did not show the pain.   Or that the pain was not initially intense so that he bore it until he could not bear it anymore and went to see the doctor on the 27 May 2004.  Or it could be due to the fact that the Respondent was not observant, or did not want to acknowledge the discomfort he saw in the Applicant.

5. The Respondent’s Counsel submitted that the Applicant under cross-examination stated that he owned a Housing Authority home ownership property jointly with his former wife.   He divorced with his wife and sold the property out of which he got a half share to the value of $700,000.00.  He did not tell the Legal Aid Department about that.  It was submitted that the Applicant could not be honest because he failed to inform the Legal Aid Department about this and if he did, his Legal Aid Certificate may be discharged.   However, the Applicant stated that the sale happened in 2006 and the staff in the Legal Aid Department did not inform him that if his financial circumstances changed he needed to report it to the Director of Legal Aid.  There is no evidence of deliberate non-disclosure of this fact when he knew he ought to disclose it.

20.On the other hand, there are factors that would support the Applicant’s case being true.  These are:-

(1) The Applicant has to carry heavy weights in his work of delivery and he has to lift up containers of the wine concentrate when he diluted the wine concentrate with water.   It is not unlikely that he could have suffered a sprain accident in the course of the work as described by him.

(2) He informed his private general practitioner Dr. Wong Chun Chung during consultation on the 27 May 2004 that he suffered the left side sciatic pain and left leg numbness as a result of moving heavy objects a few weeks ago. 

(3) On the 16 June after his admission to PYNEH he complained about a history of low back pain with pain radiating down to the left leg after lifting heavy objects with spine bending on 20 May 2004.   

(4) The Respondent did not have employee’s compensation insurance.   He had stated orally that on the 28 May 2004, the Applicant told him he had back pain but did not tell him that his back pain arose from an accident at work on 20 May 2004.  This is inconsistent with his statement in paragraph 4 of his witness statement.  The Respondent also stated that business was difficult.  It seems likely that the employee’s compensation if awarded would be an added financial burden on him.  There is every temptation to resist an award of employees’ compensation being ordered.   

21.Having considered all the above, I come to the conclusion on the balance of probability that the Applicant spoke the truth when he gave evidence that the injuries sustained by him were caused by an accident on the 20 May 2004, that arose out of and in the course of the Applicant’s work with the Respondent.  

22.I find the Applicant’s evidence that he sprained his back when he was diluting the wine concentrate with water by pouring the concentrate wine into a bin and diluting that with water, to be credible.  The big round bin was heavy about 40 catties and he had to lift that into a wooden cart.  It was in the process of lifting the heavy bin onto the cart that he sprained his back.  His evidence had the conviction of truth behind it.   As regards why he did not display his injuries by his demeanour, it could be that he was a man who was focussed at work and as he explained by him in evidence, he did not want the Respondent whom he regarded as his boss to have to take on his work.   That was why even after he told the Respondent, on 28 May 2004, that he was injured on the 20 May 2004, he continued to work as usual until he could not bear it any more and went to consult an orthopaedic specialist on 5 June 2004 to rest.  He then took sick leave until 11 June 2004, and went back to work again until 15 June 2004.  It was on the 15 June 2004 that he told the Respondent that his brother was bringing him to see a medical doctor and on that basis he left work and did not return.   This showed he tried to endure his pain and discomfort until his brother came to take him to consult a medical doctor.

23.I have considered all the evidence and the submissions related to credibility aforesaid and weighed up the evidence and come to the conclusion that the Applicant was telling the truth related to the accident that occurred on 20 May 2004 at his work with the Respondent.  

Quantum

24.The quantum is not disputed.  

Section 9 Compensation  

25.The Applicant was assessed to have suffered 3% permanent loss of earning capacity arising from the injury.   The Applicant’s monthly earnings prior to the date of the accident was $9,000.00.  Section 9 compensation is therefore:

$9,000.00 X 72 X 3% = $19,440.00.

Section 10 Compensation

26.The Applicant was granted sick leave of 218 days as found by the Employees’ Compensation (Ordinary Assessment) Board.   The Compensation is therefore:

$9,000.00 X 218/30 x 4/5 = $52,320.00

Section 10A Compensation

27.Medical expenses with receipts show a sum of $3,800.00

Total compensation is assessed at $19,440.00 + $52,320.00 + $3,800.00 = $75,560.00.

28.Judgment for the Applicant against the Respondent in the sum of $75,560.00 together with interest thereon at 5.355% per annum from date of the accident to date of judgment and thereafter at judgment rate until payment.   I grant an order nisi for costs of the action to be paid by the Respondent to the Applicant to be taxed if not agreed.   The Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Nick Lee, Legal Aid Counsel of Legal Aid Department for the Applicant.

Mr. Gary Leung of Messrs. Pang, Kung & Co. for the Respondent.