Ng Ka Chuk v. Welcome Construction Co Ltd and Others

DCEC 1097/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1097 OF 2005

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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 : 28^th & 29^th June 2006

Date of Handing down Judgment : 8^th September 2006

JUDGMENT

1.In this Application, the Applicant applies for employees’ compensation under sections 9, 10, 10A and 10 (5) of the Employees’ Compensation Ordinance Cap. 282.  Further the Applicant appeals against the assessment of the Employees’ Compensation (Ordinary Assessment) Board under the Certificate of Assessment issued on 29 December 2004.

2.It is pleaded in the Application that on 7 October 2003, the Applicant was instructed by the 1^st and/or 2^nd Respondents’ foreman to use a wheelbarrow to deliver the earth excavated from a ditch in a construction site at Victoria Road, Hong Kong to a dumping station located about 60 to 70 meters away from the ditch.  Whilst he was pushing the wheelbarrow loaded with earth towards the dumping station, the wheelbarrow suddenly overturned due to the uneven ground surface as a result of which the Applicant fell onto the ground and sustained injuries to his left leg.

3.By the Applicant’s own witness statement dated 16 March 2006, which was adopted as the evidence-in-chief at the trial, the Applicant gave a version of the accident consistent with his pleading.

4.The Respondents admitted that the Applicant was the employee of the 2^nd Respondent at all material times.  The Respondents dispute that the Applicant sustained personal injury from the accident as alleged.

The Issues

The 1st Issue

6.The Applicant’s evidence in his witness statement is consistent with the facts of the accident in the Application.  The Respondents’ only witness Mr. Siu was not present at the scene and had no knowledge about the accident.  The Respondents’ only line of defence was to challenge the credibility of the Applicant.

7.The Respondents challenge the Applicant’s credibility on three grounds:-

(a)	The Applicant gave an account of the accident which is inconsistent to the account recorded in the Accident Report compiled by the 2nd Respondent;
(b)	The Applicant’s behaviour after the accident was inconsistent with his allegation that he had sustained injury to this left leg ankle; and
(c)	The Applicant is generally incredible.

The Respondent’s Counsel’s Submissions

8.The Respondents’ Counsel submits that according to the Applicant’s evidence-in-chief, a Ms. Chan of the 2^nd Respondent telephoned him to go back to the office of the 2^nd Respondent about a month after the accident, to give a statement for an Accident Report.  A statement was taken and recorded by Ms. Chan from the Applicant.  When the Applicant was given time to read the Chinese Accident Report in Court, he acknowledged and confirmed the contents therein.  He also confirmed that the details of the accident were the same as that he told Ms. Chan.

9.During the Applicant’s evidence-in-chief, he was also given time to read his witness statement in Court and he confirmed the contents therein to be true.

10.However, although both versions show that the Applicant sustained injury to his left leg ankle on 7 October 2003, there are in fact material discrepancies between the two accounts regarding the location where he sustained his injury and regarding how he sustained the injury:-

(1)	Location of the Accident:
	Witness Statement: “Whilst I was pushing the wheelbarrow loaded with earth towards the dumping station, the wheelbarrow suddenly overturned ……”  Therefore the Applicant sustained the injury at a place between the ditch and the dumping station.
	Accident Report : “When I was unloading the earth and mud, the wheelbarrow suddenly turned to one side.”  Therefore the Applicant sustained the injury just near the dumping station (if not at the dumping station).
(2)	The way the Applicant sustained the injury:
	Witness Statement : “the wheelbarrow suddenly overturned due to the uneven ground surface as a result of which I fell onto the ground and sustained injuries to my left leg.”  Therefore the Applicant sustained injury because he fell onto the ground.
	Accident Report : “…… the wheelbarrow suddenly turned to one side.  I immediately lifted up the wheelbarrow and my left leg ankle was twisted once.”  Therefore the Applicant sustained the injury when and because he tried to lift up the falling wheelbarrow.

11.The Respondent’s Counsel submits that when the Applicant was questioned about the discrepancies during the cross-examination, he changed his stance and said that the version in the Accident Report, regarding the abovementioned two issues, was not correct.

12.However when questioned further about whether he fell down, the answer given by the Applicant showed that in fact he did not fall down.  He submits that the account given in Court seemed to be a mixture of the two versions in his witness statement and in the Accident Report.

13.Further, during the Applicant’s evidence-in-chief, he said that the wheelbarrow fell over because it “kicked” on a stone or a brick.  However this account had never been mentioned in the Application, his witness statement nor the accident report.

14.The Respondents’ Counsel submits that in effect the Applicant had given 3 different versions of the accident, namely that in his Witness Statement, that in the Accident Report and that in Court.  Each of these were all confirmed by the Applicant to be true and accurate.  The Respondents’ Counsel therefore submits that the Applicant is incredible and his evidence is unreliable. 

15.The Respondents’ Counsel refers to the medical report dated 7 September 2005 (at page 1 of Bundle C) which states that the Applicant suffered from a fracture left distal fibula.  He submits that by any common sense, there should be severe pain arising from a bone fracture.  However the Applicant’s evidence is that he only felt a little painful after the accident.  One should bear in mind that the alleged injury caused the Applicant to rest for more than a year and allegedly he still suffered from residual pain and could not return to the original work.  He submits that surprisingly the Applicant did one more “round” of job after the accident and then took a rest because he had nothing more to do.  He submits that, even more surprisingly, he then drove a pick up light goods vehicle with manual transmission from the site located at Victoria Road to the depot in Siu Sai Wan which took him thirty odd minutes.  The Respondents’ Counsel submits that it is unbelievable that the Applicant could use his injured left leg ankle with bone fracture to step on the clutch plate of a light goods vehicle with 2.8 tonnages for a thirty minutes odd journey. 

16.When he returned the light goods vehicle back to the depot in Siu Sai Wan, he did not report the accident to the Respondents but simply went back home and asked his family member to apply some Chinese medicinal wine for him.  According to Mr. Siu’s evidence, he met the Applicant at about 6:00 p.m. on that day in the depot but the Applicant did not report the injury to him and the Applicant just walked normally.

17.The Respondents’ Counsel submits that this behaviour of the Applicant after the accident was just inconsistent with the injury he suffered.

18.The Respondents’ Counsel states that the Applicant gave evidence in Court that there were four other fellow workers nearby at the time of the accident and one Ah Fu could see the accident.  However this Ah Fu was not called by the Applicant as witness in the present proceedings.  On the contrary, Mr. Siu gave evidence that this Ah Fu’s full name is Lau Lei Fu (transliteration) and when he investigated into these four workers, no one told him that they saw the accident alleged by the Applicant.

19.The Applicant during cross-examination said that his condition is not better than that in March 2005 (the time when he tried the physiotherapy treatments again) and at present he still feels painful when he steps on the floor by his left leg.  The Respondents’ Counsel refers to the opinion of the Applicant’s own medical expert Dr. Danny Tsoi who comments that:-

“	It appeared that there was no complication arising form the injury.  The slow progress could not be explained orthopaedically.”
“	The overall condition was satisfactory.  It appeared that the symptoms were disproportional to the objective findings.”

20.The Respondents’ Counsel submits Dr. Tsoi’s evidence in fact suggests that the Applicant was exaggerating his injury condition or at least the Applicant’s slow progress and present symptoms were unable to be explained medically.

21.The Respondents’ Counsel submits that although the Applicant gave evidence that he still suffers from residual pain in his left leg ankle, Dr. Tsoi in his medical report made a favourable prognosis:-

(a)	“	Mr. Ng’s injured left ankle has attained a stage of maximal medical improvement and no further treatment is required.”
(b)	“	He may experience mild left ankle discomfort and analgesics may be required on need-to basis.”

22.In paras. 8 and 9 of the Applicant’s witness statement, the Applicant gave evidence that he was still suffering from all sorts of residual pains and he said that “I have not been able to resume my pre-accident job after the expiration of my sick leave on 20 September 2005” and that “I am at present still unemployed.”  However Dr. Tsoi’s observation is totally different: “Mr. Ng can resume his pre-injury job but mild reduction in capacity is anticipated …….”  Again it is very likely that the Applicant was exaggerating his condition of injury.

23.On the basis of the aforesaid he submits that on the whole, the Applicant is generally an incredible and unreliable witness and his evidence should not be accepted by the Court. 

Assessment of the Applicant’s Evidence

24.I shall address each of these submissions of the Respondents’ Counsel in the light of the evidence of the Applicant.   

25.In relation to the inconsistency of the Applicant’s version of how the accident happened in comparison with the Accident Report prepared by Miss Chan, the evidence is that the Applicant did not write that report but the report was written by Miss Chan after the Applicant told her his narrative of what happened.   The Applicant did not sign the Accident Report.   The Accident Report was signed by the Site Foreman who is the Applicant’s elder brother.    There is no evidence that the Accident Report was ever read back to the Applicant by Miss Chan.  Miss Chan could well have misunderstood the account of the accident stated by the Applicant and wrote a version which is slightly at variance from what the Applicant told her.  

26.Under cross-examination, the Applicant initially said that the Accident Report is correct.   However when it was read out to him, he immediately stated that the accident did not happen at the time he was dumping the earth but when the wheelbarrow had kicked something.  He said that he told that to Miss Chan but she had failed to record that.  He said under cross-examination that the wheelbarrow kicked a brick and the wheelbarrow fell over and he also fell over.   Only his foot fell not the whole body fell.  His hands still held onto the wheelbarrow.  He said in greater detail that his foot fell over and turned.  His body could not keep balance and he twisted his ankle.   Some of the soil spilled over.  

27.He stated that although he did not say the wheelbarrow kicked a brick in his witness statement, he told his solicitors about that and paragraph 3 of his witness statement stated that the ground was uneven.  This could well be a condensed version of the fact that “the wheelbarrow kicked a brick”.  There is no inconsistency.

28.He stated that in relation to the location of the accident, it happened when he was pushing the wheelbarrow to the dumping ground and not when he was unloading the earth.   Even though it is stated in the Accident Report, that the accident happened when he was unloading the earth, he did not say that.  

29.The Respondents’ Counsel also referred to the fact that the Accident Report stated that the accident happened when the Applicant was lifting up the wheelbarrow when he twisted his left leg.   This is different from his evidence.    

30.In view of the fact that the Accident Report was written by Miss Chan and not by the Applicant and the Applicant did not sign it, it might well be the case that Miss Chan did not accurately record what the Applicant stated.   Further, Miss Chan did not come to give evidence as regards what was spoken by the Applicant to her.   In my view little weight should be given to these discrepancies between the Applicant’s evidence and what is stated in the Accident Report.  

31.As regards the allegation that in his evidence in Court, he stated that he did not fall down but his leg fell down, he explained accurately what happened in his oral evidence.   The Respondents’ Counsel sought to suggest that the Applicant gave three versions of the Accident, one in his oral evidence, another in his witness statement and another in the Accident Report.   In my view, there is not much discrepancy between the account in his witness statement and his oral evidence.   It is just that in his oral evidence he is more graphic and describes in greater detail what happened in comparison to the brevity of the account in the witness statement.  There is no inconsistency.  

32.The other matter refers to the Applicant’s physical condition being able to do another “round” after the accident and then being able to drive the vehicle back to Sai Wan Ho the vehicle being a manual gear stick vehicle.   He would have to step on the clutch when driving.  The Applicant said that he did not feel much pain at the time.  There is no medical opinion on this fact as regards whether he could have stepped on the clutch after the injury.   It is not clear as to the exact state of the fracture immediately after the accident and whether medically it could be explained that he did not feel immediately a great deal of pain so much so that he had to stop work on the spot and that would have prevented him to drive the vehicle to Sai Wan Ho.   However, I am of the view having considered the overall evidence it would have seemed that he may not have known the severity of the injury and did not feel much pain until the next morning.   I could not speculate without medical evidence on this but it is not beyond the realms of possibility as a matter of common sense that one could have an undisplaced fracture, which subsequently became a displaced fracture and before that the pain was not so intense.   Having observed the Applicant when he gave evidence and his demeanour, I am of the view that his evidence was truthful and the accident happened as stated by him.  

33.Mr. Siu of the Respondents stated that the Applicant did not tell him of the accident when he saw him in Sai Wan Ho after he had driven the vehicle there.   Further the four other colleagues whom the Applicant said had seen the accident did not inform Mr. Siu that they saw the accident when Mr. Siu investigated the accident and made enquiries of them.  If the Applicant did not think the injury was serious at the time he saw Mr. Siu.  It is reasonable that he did not report the accident to Mr. Siu.  He said the condition of his left ankle became more serious later.  The accident described is not dramatic and it may be that the other workmen did not notice the accident or did not regard it as of any significance.

34.I considered all these and despite the aforesaid I come to the conclusion that the Applicant was stating the truth when he gave the account of the accident.   When he went to Tuen Mun Hospital in the morning of 8 October 2003, the day after the accident, he informed the Accident and Emergency Department that he suffered his left ankle sprain during work.   This is an account given the next morning after the accident.   I am of the view that the Applicant was truthful in his account of the accident despite having considered all the submissions of the Respondents’ Counsel and all the evidence.  

35.I find the Applicant has established liability against the Respondents.

The 2nd Issue

36.Dr. Danny Tsoi assessed the Applicant to suffer loss of earning capacity at 4%.  Dr Tsoi already sets out in his report the basis of his assessment.  The Applicant appeals against the Board’s assessment at 2% based on Dr. Tsoi’s assessment.

37.The Respondents chose not to adduce any expert evidence.  The Respondents even agreed that Dr. Tsoi’s expert report be adduced without oral evidence.

38.The Respondents’ Counsel argued against the assessment of Dr. Tsoi and stated that on the basis of that in estimating the loss of earning capacity at 4%, Dr. Tsoi solely relied on his assessment that the Applicant’s left ankle pain and mild stiffness account for 5% permanent impairment of the left lower limb.  The Respondents vigorously challenge this 5% permanent impairment.

39.Firstly, he argued that the wordings “left ankle pain and mild stiffness” are unsupported by and inconsistent with Dr. Tsoi’s own medical findings.  Dr. Tsoi’s own medical findings are that:-

“	It appeared that there was no complication arising from the injury.  The slow progress could not be explained orthopaedically.”
“	Radiologically, the fracture heals up in very good condition.  Complications such as malunion and traumatic degeneration were not noticed.”
“	The overall condition was satisfactory.  It appeared that the symptoms were disproportional to the objective findings.”
“	Mr. Ng’s injured left ankle has attained a stage of maximal medical improvement and no further treatment is required.”
“	He may experience mild left ankle discomfort and analgesics may be required on need-to basis.”
“	Mr. Ng can resume his pre-injury job but mild reduction in capacity is anticipated.  He may encounter some inconvenience in climbing, jumping or squatting for long period of time.  It is expected that his weight lifting capacity will not be affected but the endurance in long hours of strenuous manual duties will slightly be reduced.  This will certainly affect his working capacity.”

40.He argued that all along in his medical report, Dr. Tsoi only concluded that the Applicant will suffer from “mild left ankle discomfort”; “inconvenience …… for long period of time” and “endurance in long hours of strenuous manual duties will slightly be reduced”.  However when assessing the permanent impairment of the left lower limb, the wordings “pain” and “stiffness” came out from nowhere.  These two symptoms were also inconsistent with and contradictory to his line of medical findings.  He submitted that Dr. Tsoi’s assessment of 5% permanent impairment of the left lower limb which is based on “pain” and “stiffness” is ungrounded and shall not be accepted.

41.In coming to the conclusion as regards whether Dr. Tsoi’s assessment is reasonable, one has to note the occupation of the Applicant as a general labour.   He has worked on a construction site at the time of the injury.   In considering his working capacity, Dr. Tsoi stated, “Mr. Ng can resume his pre-injury job but mild reduction in capacity is anticipated.  He may encounter some inconvenience in climbing, jumping or squatting for long periods of time.  It is expected that his weight lifting capacity will not be affected but the endurance in long hours of strenuous manual duties will slightly be reduced.   This will certainly affect his working capacity.”  

42.In my view, 4% loss of earning capacity in the light of Dr. Tsoi’s assessment of the Applicant’s working capacity is not unreasonable.   I accept Dr. Tsoi’s findings despite the fact that the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) came to a different finding.   There is no reasoned statement to support the finding of the Board.   We do not know why they came to their assessment of loss of earning capacity at 2%.   However, Dr. Tsoi has stated his assessment of the Applicant’s working capacity anticipated by him as quoted above.  In my view, in the light of that his assessment of 4% loss of earning capacity is not inappropriate.

43.I grant the appeal against the assessment of the Board.

Quantum

44.As regards the monthly income of the Applicant, the parties agreed that it should be the average income from May 2003 to September 2003 and that is agreed at $11,509.78.  

Section 9 Compensation

45.In view of the aforesaid Section 9 compensation comes to:

$11,509.78 x 4% x 72 = $33,148.17.

Section 10 Compensation

46.It is agreed that the period of sick leave is limited to the period shown in the Certificate of Review of Assessment dated 20 June 2005 with two additional days on which the Applicant attended follow-up treatments.   Therefore the period of sick leave is from 8 October 2003 to 3 March 2004 and from 17 May 2004 to 15 December 2004, 20 September 2005, and 21 March 2006.  In total there are 363 days.  

47.$118,971.50 had been paid by the Respondents to the Applicant.   Section 10 Compensation comes to $11,509.78 x 363/26 x 4/5 less $118,971.50.   This comes to $9,583.89.      

Section 10A Compensation

48.This comes to $3,300.

49.Total compensation comes to $33,148.17 + $9,583.89 + $3,300 = $46,032.06.   

50.Judgment for the Applicant against the 1^st, 2^nd and 3^rdRespondents in the sum of $46,032.06 together with interest thereon at half judgment rate from 7 October 2003 to date of judgment and thereafter at judgment rate until payment.   I grant an order nisi for costs of the action against the 1^st, 2^nd and 3^rdRespondents to be taxed if not agreed.  The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Representation:

Miss Kathy Chiu of Messrs. Vincent T.K. Cheung, Yap & Co. assigned by DLA for the Applicant.

Mr. Danny Ng Pak Kin instructed by Messrs. Erwin Young, Chu & Law for the Respondent.