Lee Yuen Fan v. Fung Lai Kan and Others

DCEC 699/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 699 OF 2005

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BETWEEN

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Coram:  Deputy District Judge Anthony Chow in Court

Dates of Hearing:  26^th and 27^th September 2006

Date of Handing down of Judgment:  5^th October 2006

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JUDGMENT

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1.This is an application for employees’ compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance Cap 282. The Applicant, aged 57 at the time, alleged on 7/12/2003 he suffered an injury to his right shoulder in an accident, arising out of and in the course of his employment with the 1^st Respondent.

Agreed facts:

2.The 3^rd Respondent was the main contractor, the 2^nd Respondent one of its sub-contractors and the 1^st Respondent one of the sub-sub-contractors of a construction site at Tin Shui Wai Lot 27 (the “Site”). Although during the hearing, it emerged the 1^st Respondent may in fact be the sub-sub-sub contractor, it did not have any bearing on the issues or the findings.

3.Sometime before the alleged injury, the 3^rd Respondent installed a palm-print scanning machine (the “Palm Scanner”) on the entrance of the Site. The Palm Scanner is an entrance system where workers were issued a computer card with information of the worker’s palm print. At the entrance turnstile, the worker was required to first scan his palm-print card, much like an octopus card, and then place his palm on a scanner. The computer would read the information stored in the palm-print card and compare the scanned palm-print. If the two matches, the turnstile would open and the worker allowed into the Site. The palm- print of the Applicant was taken and he was issued a palm-print card.

4.The Applicant was aware that workers were required to press his palm-print card to the Palm Scanner and have his palm print scanned before entering the Site.

5.The computerized palm scanner record showed, in the month of December 2003, the Applicant only entered the Site on 1/12/2003 and 2/12/2003.

The Applicant’s case:

6.The Applicant alleged he was employed by the 1^st Respondent to lay down underground sewer pipes in the Site. At the time of his injury, he was earning daily wage of HK$600.00, together with an overtime payment of HK$100.00 per day.

7.On or about late November 2003, the underground sewer pipe part of the construction work was near the end and as a result, in the month of November 2003, the Applicant worked about 27 to 28 days, with overtime work for 5 to 6 days.

8.On 7/12/2003, the Applicant alleged that since the underground pipe laying was near the end, he had to work even though it was a Sunday.  Because the soil was dug up in the area of the Palm Scanner, he did not enter the Site through the Palm Scanner. Instead, the Applicant entered the Site through the main entrance, which was guarded by security guards. The security guards knew the Applicant and allowed him to enter the Site.

9.On the same day, one of the 1^st Respondent, Fung Lai Kan, and the Applicant were carrying a heavy iron pipe, of approximately 6 meters long, on their shoulders. As they were walking pass a concrete truck, Fung dropped the pipe, resulting in one end of the pipe hitting the ground. The Applicant was slow in dropping his end of the pipe because there were two workers nearby. The resulting shock wave caused the Applicant to fall on his buttocks and he sustained injuries to his right shoulder.

10.The Applicant alleged the 1^st Respondent told him they did not have insurance and not to go to a hospital. The 1^st Respondent suggested the Applicant should consult a private doctor and they would pay for all medical expenses and wages until the Applicant recovers.

11.The 1^st Respondent then took the Applicant to see a bonesetter. From 20/12/2003, the Applicant sough treatment on the Mainland, where the expenses were lower and his children could look after him.

12.The Applicant returned to Hong Kong in April 2004 and asked the 1^st Respondent for payment. The 1^st Respondent failed to pay and on 3/4/2004, the Applicant reported his injury to the Labour Department. On 6/4/2004, the Applicant attended to his injuries at the Kwun Tong Jockey Club Health Centre under the United Christian Hospital.

13.The Applicant was granted 19 days sick leave from 6/4/2004 to 13/5/2004 and between May 2004 and October 2004, the Applicant returned to the Mainland for further treatment. A Certificate of Review of Assessment certified the Applicant suffered a 4% permanent loss of earning capacity due to his injury.

14.Dr. Richard Lau agreed with the permanent loss of earning capacity assessment, but opined that the Applicant’s sick leave should have commenced from the date of his injury and 5 months of sick leave should be reasonable.

The Respondents’ case:

15.There are 3 entrances to the Site. The first was a vehicular entrance, which is guarded by security personnel. The second was a pedestrian entrance, which is also guarded by security. Anyone who entered the Site from the pedestrian entrance must record their details on a registry kept by the security personnel. The third was through a converted container, with one opening at each end. Palm Scanners and turnstiles were installed inside. All workers must pass through the scanner and the turnstiles to gain entrance to the Site from this entrance.

16.The 3^rd Respondent’s company policy was all workers must use the Palm Scanner to enter the Site, such that in case of labour disputes, wages of the workers can be easily calculated. All new workers and those who were waiting for their palm-print card may enter the Site by the pedestrian entrance.

17.In accordance with the Palm Scanner record, in the month of December 2003, the Applicant only attended the Site on 1/12/2003 and 2/12/2003. There was no record of the Applicant entering the Site on 7/12/2003.

18.In accordance with the pedestrian entrance registry for 7/12/2003, the Applicant was not one of the 212 workers who entered the Site by the pedestrian entrance.

19.The Respondents agreed to the claim for medical expenses, however, the Applicant’s monthly wage and the period he was entitled to receive section 10A compensations are disputed.

The Issues:

20.There are two main issues in this matter: First, on liability, did the Applicant suffer an injury on 7/12/2003, arising out of and in the course of his employment at the Site? Second, on quantum, if the answer to the first issue was positive, what is the appropriate compensation?

The Analysis:

21.The first issue may be further divided into two sub-issues: (1) Did the Applicant attend the Site on 7/12/2003?  (2) Did the Applicant suffer an injury arising out of and in the course of his employment? If the answer to any of these sub-issues is negative, there will be no need for me to consider the issue on quantum.

(1) Did the Applicant attend the Site on 7/12/2003?

22.This is of course a finding of fact that must be based on the evidence, the testimonies of the Applicant and the Respondents’ witnesses.

23.The burden of proof is on the Applicant accordingly I must consider the Applicant’s evidence first. The only evidence was the Applicant’s own testimony and there were several important inconsistencies with the Applicant’s evidence.

24.The Applicant testified that there were a total of four entrances to the Site. First, there was the main entrance; Second, next to the main entrance, the vehicular entrance, both were unguarded; Third, there was a palm scanner entrance, which was inside a converted container beside the vehicular entrance; Fourth, inside the Palm Scanner container, there was an additional door to the left, where one could enter the Site without going through the Palm Scanner entrance.

25.The Applicant testified in court he used the left side additional door inside the container to gain entrance to the Site, but in paragraph 11 of his witness statement, the Applicant stated: “… so I did not enter the construction site through the palm-print scanner. Instead, I entered through the main entrance which was guarded by security guard.”

26.Additionally, the Applicant stated in paragraph 11 of his witness statement, he did not go through the Palm Scanner on 7/12/2003 because: “Some soil was dug up in the area near the scanner machine, …”. But the Applicant testified that the Palm Scanner was located inside a container and it was clearly impossible to dig inside a container.

27.Giving the Applicant full benefit of the doubt and assuming the Applicant meant soil was dug up near the container entrance and not near the Palm Scanner, there is still the inconsistency on which entrance he took to enter the Site on the morning of 7/12/2003.

28.Leaving aside the inconsistency on which entrance the Applicant took to gain entrance on 7/12/2003, in paragraph 11 of his witness statement, after stating he entered the Site from the main entrance, the Applicant further stated: “Since they (the security guards) recognized me, they let me through.” Under cross-examination however, the Applicant stated there were no security guards posted at the main entrance. All security guards were posted at the Palm Scanner entrance. If there were no security guards on the main entrance, how could they recognize him and let him into the site?

29.The Respondents’ witnesses all testified that there were only three entrances to the Site. First, a vehicular entrance, which was guarded at all times. Second, inside a container placed next to the vehicular entrance was another entrance. This entrance was guarded by a Palm Scanner and a turnstile. Workers were required to scan both the scanner card and their palm before they were allowed into the Site. There was only one entrance and one exit in the container. Third, there was a pedestrian entrance next to the container. This entrance was used by visitors and new workers who have not yet applied for or were waiting for their palm scanner cards. Before entering the Site through the pedestrian entrance, security guards would ensure personal particulars were recorded on a registry book.

30.賴穗儀, a Respondents’ witness, testified that even with a staff I.D. card of the 3^rd Respondent, she had to enter her particulars on the registry before being allowed into the Site.

31.On the morning of 7/12/2003, a total 212 workers entered the Site through the pedestrian entrance. All of them wrote down their personal particulars on the registry book. Most of them wrote down their entrance time as well. None recorded the time of their exit.

32.Ms. Leong, counsel for the Applicant, argued that the 3^rd Respondent’s Palm Scanner record must be inaccurate, because it only recorded the Applicant’s time of entrance, but did not record the time of exit on 1/12/2003 and 2/12/2003.

33.Looking at the pedestrian registry book, clearly the security guards ignored the 3^rd Respondent’s policy of recording the exit time, but they did enforce the rule that all who entered from the pedestrian entrance must record their particulars.

34.Although the Palm Scanner rule was also not enforced on exit, but this is consistent with the pedestrian entrance registry. The fact that no exit time was recorded did not mean the Palm Scanner entrance record were inaccurate.

35.There were no independent witnesses or other evidence; the Applicant’s case depended solely on the veracity of his testimony. After careful consideration, I find I prefer the Respondents’ witnesses’ version of event.

36.Having carefully considered all of the evidence, the testimonies of the Applicant and the Respondents’ witnesses, I find the Applicant failed to proof on balance of probability that he attended the Site on 7/12/2003.

37.Although I have already found the Applicant did not attend the Site on 7/12/2003, it must follow that he did not suffer an injury arising out of and in the course of his employment on the Site that day; however, for completeness, I will also consider the Applicant’s evidence on his injury.

(2) Did the Applicant suffer an injury arising out of and in the course of his employment?

38.The Applicant did not report his injury to the Labour Department until 3/4/2004, almost 4 months after the date of injury. Even if I accept the Applicant’s explanation that was because his employers, the 1^st Respondent, told him they would take care of his medical expenses and wages until his recovery and he went back to the mainland to seek treatment, this did not explain why when the Applicant first seek treatment in Hong Kong he made no complaint of his shoulder injury.

39.In the medical report dated 24/6/2004, Dr. Fung Ka Hang of the United Christian Hospital wrote: “Mr. Lee was seen at the Medical Department on 24/3/2004 with a referral letter dated 18/2/2004 from Kwun Tong GOPC written ‘left chest pain for a year’. Mr. Lee also complained of palpitations. There was no mention or relation to any accident on 7/12/2003.”

40.Since the Applicant reported his injury to the Labour Department on 3/4/2004, when he attended the United Christian Hospital on 24/3/2004, he must be fully aware of his injury, yet he made no reference of the injury to his right shoulder, only he had left chest pain and heart palpitations.

41.In view of the 4 months delay in filing his report and the Applicant’s failure to mention the right shoulder injury on earlier medical examinations, I also find the Applicant did not suffer an injury arising out of and in the course of his employment.

Orders:

42.The application is dismissed.

43.Costs to the Respondents, with certificate for counsel, to be taxed if not agreed.

44.The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Representation:

Ms. Susanna Leong, instructed by Legal Aid Department, for the Applicant

Mr. Kwan Tong Lee, instructed by Messrs Yip & Partners, for the 1^st to 3^rd Respondents