Chong Sun Wah v. Sinopoint Logistics Ltd

DCEC 504/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO.504 OF 2004

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BETWEEN

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Coram  :  Deputy District Judge S. T. Poon in Court

Date  of Hearing  :  21^st December 2006

Date of Delivery of Judgment  : 21^st December 2006

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J U D G M E N T

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Introduction

1.The Applicant was a driver employed by the Respondent.  He was assaulted by a colleague inside a truck of the Respondent and fell onto the road resulting in multiple injuries. 

2.The Respondent filed an Answer denying that the Applicant sustained personal injury by accident out of and in the course of employment.

3.Notwithstanding the directions given by His Honour Judge Lok and Her Honour Judge Ng, the Respondent did not file any list of document nor witness statement. 

4.The Respondent does not turn up today.  The solicitors originally acting for the Respondent ceased to act for it on 13^th November 2006.  This trial date was fixed by Her Honour Judge Ng at the hearing on 27^th October 2006 where the Respondent was still represented by solicitors.  I am satisfied that the Respondent had been properly informed of today’s hearing and decide to proceed in its’ absence.

Evidence

5.The Applicant gave evidence.  On the material day he drove the subject company truck for delivery of goods together with his colleague Mr. Wong (“Wong”).  After delivering the goods they went to a petrol station at Kwai Chung for refuelling.  At the petrol station Wong asked the Applicant whether he could drive Wong to Sheung Shui before he return the truck to the company.  The Applicant then telephoned the Respondent to seek instructions and apparently Wong was then scolded by his superior in the phone for the request.

6.Wong was angry with the Applicant.  He took over the truck for driving and the Applicant moved himself to the passenger seat.  While Wong was driving the truck out from the petrol station he assaulted the Applicant and as a result, the Applicant fell off from the truck and was injured seriously.

7.According to the Applicant, at that time he wanted to see where Wong would drive the truck to and if Wong did not return the truck to the company, he would have to do so.

8.The Applicant suffered multiple injuries on his body and was assessed at suffering 26.5% permanent earning incapacity.  He was granted 293 days of sick leave.

Liability

9.As submitted by Mr. Leong, solicitor for the Applicant, the duty of the Applicant includes returning the truck to the Respondent.  At the time when the incident happened, he was still on duty.

10.In the case of Kong Hon Hung v Yuen Hing (China) Transportation Limited DCEC150/1998, the applicant, who was a container truck driver, was assaulted by pedestrians as a result of a traffic accident.  His Honour Judge Carlson held that the injury was a result of an accident arising out of and in the course of the employment.

11.Mr. Leong referred me to the case of Srinakhonkdee Rampai v Wong Wai Lam and Wong To Sang trading as Sai Sha Café, HKECC 348/92, where Deputy Judge To (as he then was) held that the applicant who was assaulted by a colleague when interpreting for her employer in a conference with the Thai employees, was injured in an accident in the course and arising out of the employment.

12.For the present case, the assault happened when the Applicant was still on duty inside the Respondent’s truck.  Although it was a deliberate act of Wong out of his anger to the Applicant, his anger was arising from the Applicant’s report of his unreasonable request to the employer. 

13.Section 5(4) of the Employee’s Compensation Ordinance, Cap 282, (“the Ordinance”) provides that “an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment.”

14.In Lam Chi Biu v Mak Kee Limited Anor DCEC 1203/2002, where the applicant was assaulted in his office by 2 men without knowing the reasons, Her Honour Judge Wong had this to say :-

“Clearly, the incident whereby the applicant was assaulted and sustained serious injuries must be considered as an accident. There was no obvious reason to point to the fact that the applicant was assaulted for any personal reasons. There is therefore, under section 5(4)(a) of the ordinance, a presumption that the applicant sustained the injuries in the course of his employment and that the accident had arisen out of employment.”

15.The Applicant stayed inside the truck waiting to see whether it was necessary for him to drive the truck back to the Respondent’s premises and the assault happened.  The assault was obviously happened in the course of his employment and the Applicant was not assaulted for “personal reasons”.

16.Accordingly, I find the Respondent liable to the present Application.

Quantum

17.The Applicant claims under Section 9, 10 and 10A of   the Ordinance. 

18.The Applicant’s monthly earning immediately preceding the accident was HK$9,000.

19.Compensation under Section 9 would be HK$9,000/30 x 293 = HK$87,900.  For Section 10, the amount would be HK$9,000 x 72 x 26.5% = HK$171,720. 

20.I accept that the medical and travelling expenses of the Applicant was HK$2,830 in total and I award the amount accordingly under Section 10A.

21.In the premises, I order that judgment be entered against the Respondent in favour of the Applicant in the amount of HK$262,450 and interest thereon at half Judgment Rate from 22^nd March 2003 to the date of judgment and thereafter at Judgment Rate until payment.

22.Costs should follow the event, and since the Applicant has succeeded in his application, costs of the Application be to the Applicant on an indemnity basis, to be taxed if not agreed.      

Mr. Yeong Yun Hong of Messrs Yeong & Co. for the Applicant.

Respondent in person, absent.