Ho Ka Wang v. Hong Kong Tramways Ltd

DCEC 1282/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1282 OF 2003

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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 August 2006

Date of Handing down Judgment : 25^th October 2006

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JUDGMENT

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1.This is an application for Employees Compensation under sections 5, 9, 10 and 10A of the Employees Compensation Ordinance, related to personal injury by accident on the 30 May 2003, arising out of and in the course of employment, which was caused to the Applicant.  

The Accident

2.The Applicant was a tram driver.  The accident was alleged by the Applicant to have happened at about 8:30 a.m. on 30 May 2003.  When the tram driven by the Applicant along the westbound tram track of Des Voeux Road. reached the junction of Jubilee Street, an old person pushing a wooden cart emerged from the back of an eastbound tram next to TRM137.  The Applicant immediately applied the brake to halt the tram to prevent it from hitting the old person.  As a result, he sprained his right wrist, ankle and neck.

The Respondent’s Case

3.The Respondent denied that the Applicant suffered an accident on the day and in the manner alleged or suffered the injuries arising from the accident as alleged.  The Respondent also put the Applicant to strict proof related to the accident.

The Issue

4.The only issue is “Whether the Applicant suffered personal injury in the course of his employment with the Respondent at about 8:30 a.m. on 30 May 2003?”

5.Quantum has been agreed.

The Applicant’s Evidence

6.He adduced his witness statement into evidence.   He states in evidence that his tram arrived at Central area at around 8:30 in the morning.  He drove the tram along Des Voeux Road Central west bound.  When he arrived near Central Market, there was another tram on the opposite side travelling east bound in my direction.  Suddenly, a wooden cart was being pushed from the rear part of the said tram.  He forthwith used his right hand to pull the air brake to stop the tram.  As the impact was quite large, he sprained his right ankle and neck.  Besides, his right wrist felt painful too.  Because he thought that there was no serious injury and he could still control and drive the tram, he then continued to drive the tram to the terminal.

7.Due to the pain in his right wrist, besides applying the air brake on the right hand side to stop the tram, he also used the emergency braking function of the control stick on the left hand side namely the DVD brake to assist him in braking the tram to a halt.  When he got to Des Voeux Road West near Queen Street, suddenly a passenger asked him why he braked the tram to a halt that way.  He told him that was because his right wrist had just been injured.  He told the Applicant that he was a staff of the Respondent.  He also requested the Applicant to write a report to the head of the company.

8.When he arrived at Kennedy Town Terminal, he took analgesic and continued to work.  Because his right wrist, right ankle and neck felt better after having taken analgesic.  He decided to continue to work after lunch until the end of his duty and to consult a doctor thereafter.

9.When the tram he drove arrived at North Point Tram Terminal in the afternoon, the supervisor instructed him to drive the tram back to Whitty Street Depot and to write and submit a report.

10.He wrote a report upon arrival at Whitty Street Depot in accordance with instructions.  Then he submitted the report to his superior and waited for further instructions.  While waiting he felt pain and discomfort again at his right wrist, right ankle and neck.  He then requested the manager to call for an ambulance to have him sent to hospital.

11.The Applicant was sent to the Accident and Emergency Department of Queen Mary Hospital on that day.  The doctor diagnosed sprained right wrist, right ankle and neck.  He was not admitted but he had to attend Sai Ying Pun Jockey Club Out-Patient Clinic for follow-up consultation.

12.However, it became clear upon cross-examination that the Applicant called for an ambulance whilst he was with his supervisor because he felt dizzy and had difficulty in breathing after he was told that he was dismissed and was required to return the staff card.   It was not because of the alleged injuries in his right wrist, neck and ankle that he called for an ambulance   

The Respondent’s Evidence

13.The Respondent simply put the Applicant to prove related to the accident.  The Respondent called three witnesses to give evidence.  These are Chan Shih Yao, the manager of the engineering department of the Respondent, Tsang Lam Shing, the Vice Station Master of the Respondent, and Leung Chung Kin, Tony, the Traffic Administrative Director of the Respondent.  The Respondent’s case is that the Applicant concocted the accident to explain away his dangerous manner of driving which was spotted by Chan Shih Yao who got on the tram at about 8:00 a.m. near the HSBC head office.   

14.Chan Shih Yao (hereinafter called “Chan”) gave evidence and adduced his witness statement into evidence.  He stated that he got on TRM 137 going west to the Kennedy Town terminal on the 30 May 2003 at about 8:00 a.m.  Afterwards he learnt that the tram driver was Ho Ka Wang and his staff number was 4949.

15.After he got on the tram, he sat on the front most seats on the left hand side of the lower deck of the tram.  He faced to the front of the tram.  By sitting at that position, he could clearly see how the driver operated the tram.  He could also see the traffic conditions outside the front part of the tram.

16.While the tram was approaching to the stop outside the Landmark on Pedder Street and before the tram stopped, he discovered that the alarm light on the control panel of the tram was blinking unceasingly approximately 0.5 second on and 0.5 second off.  The tram stopped abnormally and a period of time was needed in order to stop.  This would only happen if the DVD system was used to brake.  Under the normal circumstances, the driver should slow down in order to approach the stop, and then use air brake system to stop.  The period between starting to brake and stop would be relatively short and smooth.

17.When the tram stopped at the next station i.e. Man Yee Building, he discovered that the driver was still using the DVD system to brake.  An orange light on the control panel was on in front of the driver.  It showed that the driver had let go of his hand at that time, and he did not hold the DVD stick according to the instruction.  According to his professional judgment, this way of operating the tram was wrong, and constituted dangerous driving.

18.After that, he kept standing in the original position to gaze at the driver.  He saw that when the tram was approaching to the station, the driver took out his towel to wipe his face and tidied up his clothes.  He had an earphone on his ear.  He did not know whether it is a mobile phone or radio.  However, he did not see him speaking on the phone.

19.When the tram arrived at his destination, Water Street Tram Station, he went to point out to the driver that his way of driving was incorrect.  The driver replied that his hand was painful due to recent work injury, and therefore he drove the tram in this way.

20.Mr. Chan told the driver that this way of driving was very dangerous.  He also requested the driver to report the incident to his supervisor.

21.After that, he alighted from the tram and went back to the company.  He sent an e-mail to the Traffic Administrative Director and told him about the incident and requested him to take follow-up actions.

22.Under cross-examination, he stated that he did not see the wooden cart come from behind an eastbound tram at about Jubilee Street near Central Market as stated by the Applicant and he did not feel the abrupt braking of TRM137 there.  In his evidence, he stated that he first saw the alarm light on the control panel blinking unceasingly when the tram was outside Landmark on Peddar Street.  He later explained that when the driver uses the DVD braking system the alarm light comes on.  Hence, it could not be the case that the Applicant only started to use the DVD braking system after the purported wooden cart came out from behind an eastbound tram at Central Market.

23.The Respondent’s witness Leung Chung Kin, Tony (hereinafter called “Leung”) stated that on 30 May 2003, at about 10:30 a.m. he received an email from Chan saying that when he took TRM 137 driven by driver No. 4949, he saw the driver using the DVD system to brake the tram instead of the air brake.  Chan requested him to take follow-up action. 

24.Leung arranged a meeting with the Applicant and the Traffic Operations Director Mr. Choi and myself at 5:20 p.m. on that day at my office to listen to his report.

25.During the meeting the Applicant explained that he felt pain on his right hand, so he did not use the air brake, which should be controlled by the right hand, and he switched to use the DVD system which was controlled by the left hand to brake.

26.The Applicant also told him that when the tram passed through the Des Voeux Road Central near the vicinity of the Central Market, a trolley which was behind a tram suddenly came out from the opposite East Bound lane, therefore he immediately used force to brake by using the air brake.  After that, he felt pain at his right hand.  As he did not want to give a bad impression to the company, he continued to drive the tram, but changed to use DVD system to brake and stop at tram stops, and took pain-killer after stopping the tram, and then continued to drive.

27.Leung then pointed out to the Applicant that using the DVD system to stop the tram amounts to dangerous driving.  He stated that because of this and the two earlier accidents on 21 February 2003 and 8 May 2003, the Respondent has decided to terminate his employment contract.   The Applicant then stated that he wished to report the alleged injury that day.   

28.After that the Applicant said he felt very dizzy and requested for an ambulance and he was taken by stretcher to the hospital.  Leung then requested all station masters and inspectors of every terminal to conduct an investigation and make a report.  No one reported that the Applicant made any report along his route related to the accident or the Applicant having made a report about being injured while driving on the tram arising from that alleged accident.  

29.Mr. Tsang Lam Shing adduced his witness statement into evidence and confirmed its truth.  He stated that there were three types of braking systems.   The DVD system, air brake system, and wheel brake system.

30.Under normal circumstances the air brakes will be used to stop the tram.  DVD system will only be used during emergency stops.  The system will discontinue the electricity supply immediately and add pressure on the wheels to cause it to stop.  The wheel brake is used to stop the tram when it is out of order.  He stated that all the braking systems are easy to use and do not require great force.  He stated that during the training period, all drivers have been reminded to put driving safety in the first position.  If the driver’s hand was injured, he should not go to work at all.

Analysis of the Evidence

31.If the evidence of Chan were true, then the Applicant’s evidence related to the accident is put in great uncertainty.  This is because Chan stated that he saw the Applicant using the DVD braking system at the stop when the tram was near Landmark in Peddar Street.  This shows that the Applicant did not use the DVD braking system because he injured his right wrist as a result of a near accident with a man pushing a wooden cart, which was alleged to have happened near Central Market.  This is a few stops further on in the tram route.  Further Chan stated that he did not see a wooden cart cross the path of TRM137 after coming from behind the eastbound tram and he did not feel any sudden braking of the tram near the Central Market.  This evidence supports the Respondent’s case that there was no accident as alleged.   

32.The Respondent’s Counsel argues that the Applicant concocted the accident to explain why he used the DVD braking system.  If he started to use the DVD braking system before the tram reached Central Market, then the reason why he did so could not have been because of a injury arising from a near accident at Central Market.  

33.This action hinges on the credibility of the Applicant as against credibility of Chan.

Credibility of the Applicant

34.According to the medical report of the Orthopaedic Department of Queen Mary Hospital dated 16 April 2004, the Applicant came to the clinic for neck, right shoulder, right wrist and right ankle pain after 3 episodes of injury on duty on 9 September 2002, February 2003 and 30 May 2003.  He was first seen in the specialist clinic on 5 September 2003.  Arising from the accident on 9 September 2003, when he had to suddenly stop the tram to avoid hitting another vehicle that suddenly stopped in front of him, he complained of neck pain radiating to right upper limb.  He received treatment at Tang Shiu Kin Accident & Emergency Department.  He had residual neck pain but was able to return to work after 17 days of sick leave.  The second injury was in mid February 2003.  His tram collided with a bus.  He complained of neck and right wrist pain.  He had residual neck and right wrist pain but was able to resume work.  Arising from the third accident on 30 May 2003, he had twisting injury to his right ankle and also complained of neck and right wrist pain.  However, the Respondent’s Counsel referred to the Medical Report dated 6 July 2004, which contained the report of his examination on 30 May 2003 by the Medical & Health Officer of QMH.  It stated that, the Applicant “claimed that he sprained his right wrist, neck and ankle while stopping the tram.  On examination he walked with non-antalgic gait.  His neck was non-tender with full range of movement.  There was mild tenderness over his right wrist and ankle without swelling and with full range of movement.  He was treated and discharged on the same day.”  The Respondent’s Counsel submitted that there is no evidence of new injuries, which were recorded by the Medical & Health Officer on the 30 May 2003.  This shows that it is likely that there was no injury and no accident on the 30 May 2003.  The Applicant suffered symptoms of former injuries only.

35.Another factor related to the likelihood of the untruth of the Applicant’s evidence is the Applicant was that the Applicant made no attempt to tell Chan who complained about his using the DVD, that he has just had a near accident near Central Market where he braked abruptly and hurt his right wrist.  This injured his right wrist, which was painful to explain that was why he used the DVD braking system.  Chan said that the Applicant said that his right wrist was painful due to recent injury and therefore he drove the tram in this way.  According to Chan, the Applicant did not report the alleged accident to him.  The Applicant did not deny this.  He stated that he did not report the accident to Chan because, “the tram arrived at Water Street, and Mr. Chan had to alight to go to his place of work.  He left quickly and I did not have time to explain to him.”  Again he stated, “I want to add, drivers while driving should not talk to passengers.”  

36.Chan asked the Applicant to make a report of the incident that he was using the DVD braking system to the control room or to his supervisor.  The Applicant still failed to do so until Leung called him to arrange a meeting with him at 5:20 p.m. that afternoon.  He just continued working after taking some painkillers at Kennedy Town.  The Applicant’s explanations for failing to make a report were:

(1) “I did not want to affect the frequency of the trams.  Also I don’t’ think the accident was very serious, so I decided to continue driving the tram”;

(2) The Applicant agreed he had a duty to report the accident because he cannot drive properly.  But “at Kennedy Town stop I did take some pain killer, I felt better.   I continued to work”;

(3) The Applicant also repeatedly said he did not want to affect his performance record and “I don’t think it was very serious and I do not want to apply for leave so casually.”

37.The Applicant’s behaviour for the reasons aforesaid seems a bit strange in the face of complaint about his using the DVD braking system and the instruction given to him by Chan to report to his supervisor.  If he had an explanation for his using DVD braking system it is normal for a driver to give that reason in a report of the accident at the earliest opportunity.  He did not do so.  Although it is true that the Applicant has had a number of accidents before and may fear giving another report of an accident to his supervisor it is still not reasonable behaviour for the Applicant not to make a report in the face of a likely complaint against him for using the DVD braking system.

38.Another feature of this case is that the Applicant has in the earlier accidents at work filed Employees’ Compensation claims and when Leung told him he was dismissed and asked for the return of his staff card, he immediately stated that he would apply for employees’ compensation and wanted to do so when he was still in employment.  He obtained sick leave for a lengthy period from 31 May 2003 to 2 September 2004 on the basis of neck, right wrist and right ankle injury resulting in pain and post-traumatic stress.  However, the initial medical report in relation to the examination on 30 May 2003 at Queen Mary Hospital, where he was sent does not disclose anything serious and the symptoms could have been old injuries from accidents on 9 September 2002 and mid February 2003, and another accident on 8 May 2003 where the tram collided with a City Bus.

39.The Applicant also stated that he used painkillers on the 30 May after the purported accident to sustain himself to go on working after the accident.  He explained that he brought the painkillers with him to work and it is normal to do so.  The fact that he brought painkillers to work suggests that he may have had pain in the course of work before the purported accident and needed to take them.  

40.Having considered the aforesaid, I am of the view that in all probability, the Applicant’s credibility in the account of this accident is doubtful.  In all probability, he may have made up the accident to account for his having used the DVD braking system and to avoid the consequences of doing so.        

Credibility of Chan and Leung

41.Chan did not know the Applicant before he got on TRM137.  He has no motive to cause trouble for the Applicant.  As regards whether Chan first noticed the Applicant using the DVD brake system to stop the tram as from the Landmark tram stop, the Applicant’s Counsel questioned Chan as regards why he only made enquiry with the Applicant when the tram reached Queen’s Street.  Chan stated that he delayed challenging the Applicant immediately because he was afraid the Applicant’s reaction would affect the safety of the tram and its passengers as some drivers could react to this type of challenges.  Another challenge to the consistency of the evidence of Chan was the apparent inconsistency in paragraph 4 of his witness statement where he said that after he got on the tram, he sat on the front most seat of the left hand side.  However in paragraph 7 of his witness statement he said he kept standing in the original position to gaze at the driver.  The Applicant’s Counsel submitted that Chan tried to reconcile the discrepancy by saying that he put his briefcase on the seat before he sat down.

42.However having considered the evidence of Chan, I am of the view that in all probability, he saw the Applicant using the DVD braking system before the Central Market stop and that his evidence was true he did not see or feel the sudden braking of the tram when the tram was at Central Market.  Because of his work and position in the Respondent Company, it would have been highly unlikely that if the tram had stopped suddenly, he would not have felt it or noticed it.  

43.I also find Leung to be a credible witness.  There is nothing to suggest otherwise.

44.Having so found, I find that the Applicant has not established that the accident as stated by him in his evidence occurred on the 30 May 2003.  For that reason, I dismiss the claim of the Applicant.

45.Claim be dismissed with an order nisi that costs of the action be to the Respondent to be taxed if not agreed with Certificate for Counsel.  The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr. Damy I.K. Lou of Messrs. Y.L. Yeung & Co. assigned by D.L.A. for the Applicant.

Mr. Bernard Yuen instructed by Messrs. Day & Chan for the Respondent.