Chan Yuet Kam v. Acefair Industries Ltd

DCEC707/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 707 OF 2003

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BETWEEN

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DCEC708/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 708 OF 2003

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BETWEEN

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Before H H Judge H C Wong in Court

Dates of Hearing: 20, 24 to 25 July 2007

Date of delivery of Judgment:  26 July 2007

J U D G M E N T

1.The applicant Chan Yuet-kam applies for compensation under section 9 and section 10A of the Employees Compensation Ordinance, Cap. 282 (hereinafter referred to as “the ordinance”), against her former employer Acefair Industries Limited (hereinafter referred to as “Acefair”), for two industrial accidents that took place in the course of her employment. 

2.The first accident took place on 11 September 2001, while the second accident took place on 8 May 2002 at the factory premises of Acefair.  The applicant, Madam Chan, made two applications under DCEC707 and DCEC708 of 2003 respectively.  The two applications are heard together pursuant to the order of H.H. Judge Ng on 21 October 2005.

Background

3.It is not disputed that Madam Chan had been employed by Acefair as an assembly worker at its computer factory since 16 July 1991.  She worked five days a week from 8:30 to 5:30 pm, her average salary in 2001 was $5,988.81 a month, and in 2002 $6,312. 

The first accident

4.Madam Chan claimed that on 11 September 2001, at around 4 pm, she was instructed to take a large computer machine over to her supervisor Ms Chan Fung-heung (“Ms Chan”) at the factory.  While pushing the machine which was placed on top of a trolley, the legs of the trolley got caught up with the leg or legs of a table nearby and the trolley toppled over, causing the computer to fall to the ground.

5.According to Madam Chan, in an attempt to catch hold of the computer before it fell onto the ground Madam Chan sprained her right wrist.  She claimed the accident was witnessed by her supervisor Ms Chan and other employees at the factory, who also heard her crying out in pain.  She claimed she was assisted by one of her fellow workers, Ms Leung Lai-yuk, who applied medical ointment on her right wrist.  Ms Chan, the supervisor, suggested to her on that day that she should seek medical treatment immediately.  Madam Chan claimed that she did not go to the hospital immediately, she went shortly after she finished work that day.

6.Madam Chan visited the Princess Margaret Hospital Accident & Emergency Department for treatment some time after 6 pm that day.  She was treated by the doctors there at outpatients and was given painkillers and medical ointments.  The doctor also gave her three days of sick leave from 12 September to 14 September 2001.  However, Madam Chan did not take the sick leave.  She returned to work at the factory on the next day in spite of the pain on her right hand. 

7.She claimed in her witness statement of 9 December 2006 that because of her right wrist injury, she had to work with her left hand.  On 14 April 2006 she found she could not carry weight with her left hand.  Upon visiting the Princess Margaret Hospital consulting the doctors on that day, she was given two days of sick leave.  On 16 April 2002 when she reported for duty after the expiration of the sick leave she informed Ms Chan of her left wrist condition.

The second accident

8.On 8 May 2002 Madam Chan claimed that she had injured her right shoulder while trying to extract computer machine parts from a computer with her right hand because the machine parts had jammed.  She found on the next morning, 9 May 2002, that she could not raise her right arm.  She visited the Accident & Emergency Department of Princess Margaret Hospital that morning and was treated with painkillers and ointment.  She was given sick leave for the period of 9 May to 12 May 2002.  She claimed that she immediately called Ms Chan and told her of her condition and submitted the sick leave certificate to Ms Chan on the same day.  She claimed her right shoulder pain had persisted and she returned to Princess Margaret Hospital and was given a further sick leave certificate for 13 May to 19 May 2002. 

9.On 18 May 2002, she sought treatment at the Kwong Wah Hospital Accident & Emergency Department because of the persistent shoulder pain, she was given a sick leave certificate for 18 May to 20 May 2002.  She sought further treatment on 19 May 2002 from the Princess Margaret Hospital Accident & Emergency Department, she was given sick leave for 19 May to 24 May 2002. 

10.On 25 May 2002 she was admitted into Princess Margaret Hospital for chest pain and palpitation.  She was discharged on 28 May 2002 and given sick leave up to 30 May 2002.  She returned to work on 30 May 2002 even though she claimed her right shoulder and left wrist pain had persisted.  The reason why she returned to work was, according to her, she did not want to lose her job because of taking too many days of sick leave.

11.On 8 July 2002 she was seen by the Orthopaedic & Traumatology Department of the Princess Margaret Hospital.  The orthopaedic surgeon diagnosed her right wrist to be suffering from De Quervain’s disease and advised her to stop working and referred her to physiotherapy and occupational therapy treatments.  She was given sick leave from 8 July 2002 to 5 August 2002. 

12.On 5 August 2002, the orthopaedic surgeon at Princess Margaret Hospital also diagnosed Madam Chan to be suffering from De Quervain’s disease on her right wrist.  She continued to receive treatments at the Princess Margaret Hospital Orthopaedics Department between 2 September and 14 January 2003.  She attended the Accident & Emergency Department of the same hospital during this period.  She received further physio and occupational therapy treatments. 

13.She further produced receipts that showed she had sought treatments from the Sham Shui Po Occupational Health Clinic.  These were on dates of 18 September, 16 October, 31 October, 14 November, 28 November, 10 December, 24 December of 2002, and 7 January 2003.  She claimed she had taken sick leave between 5 August 2002 and 2 September 2002.  Between 3 September and 13 September 2002, she did return to work.  

14.She was admitted into hospital and took sick leave on 15 September 2002 due to chest pain and right shoulder pain.  She was given sick leave until 24 September 2004.  During this period she consulted doctors at the Sham Shui Po Occupational Health Clinic and was given sick leave for the period of 18 September to 30 September, 16 October to 31 October, and 1 November 2002 for bilateral wrist pain.  She was given further sick leave from 1 November to 11 December 2002 by the clinic.  Further, on 18 September she was given sick leave up to 30 September 2002 by the doctors at Princess Margaret Hospital. 

15.Effectively, she had been absent from work for the best part of September since 2 September, and since 15 September up to 11 December 2002.  She admitted in court that she had been on sick leave between 16 September 2002 to 16 December 2002, 23 to 24 December 2002, 26 to 27 December and 30 December 2002, and again on 6 January to 14 January 2003.  She claimed that she had returned to work on 17 December, 18 December, 20 December and 30 December 2002.  She also returned to work on 2 January and 3 January 2003. 

16.On 15 January 2003, her employment was terminated by the respondent.  She continued to receive follow-up treatments for her bilateral De Quervain’s disease at the Princess Margaret Hospital and the Sham Shui Po Occupational Health Clinic after she was dismissed. 

17.On 15 June 2004 she was assessed by the Medical Assessment Board to suffer from a sprain of right shoulder resulting in pain and stiffness, with a loss of earning capacity permanently caused by the injury assessed at 10 per cent.  The sick leave allowed by the Medical Assessment Board was from 9 May to 24 May 2002. 

18.At a review of assessment on 7 September 2002, the Medical Assessment Board confirmed the earlier assessment.  This can be found on page 394 to 395 of the bundle.  She further received a second Medical Assessment Board assessment on 15 May 2004.  It assessed her to have suffered a right wrist injury resulting in pain, stiffness and weakness, with 5 per cent loss of earning capacity.  This was maintained at the review on 7 September 2004.

Findings

19.The respondent queried the statements made by Madam Chan to the Labour Department where she had made inconsistent references to her right and left wrists regarding the accident on 11 September 2001.  The report made by Madam Chan to the Labour Department in fact took place 10 months after the alleged date of the accident of 11 September 2001.  Furthermore, she kept referring to the injured wrist as the left wrist after the 11 September 2001 accident in her 16 January 2003 statement and the 8 August 2002 notice and questionnaire.  On 25 September 2002, all of these documents were given to the Labour Department.

20.In the 16 January 2003 statement, she attempted to correct her earlier statement given on 4 January 2003 which referred to her injured wrist as the right wrist.  In her 16 January 2003 statement and later statements, she referred to the injured wrist as the left wrist.  This also applies to the questionnaire filed by her on 14 November 2002.  This repeated reference to the left wrist being the injured wrist on 11 September 2001 together with a declaration as late as 9 May 2003 referring also to the left wrist as the injured wrist on 11 September 2001, has left her evidence in court as to the injured wrist on 11 September 2001 in doubt. 

21.Furthermore, on 27 October 2003, at the trial of the respondent at the magistrate court under section 16A(2), section 16F or section 16G3 of the ordinance, Madam Chan insisted that she had injured her left wrist at the 11 September 2001 accident. 

22.Mr Wong, the legal representative of Madam Chan, conceded at the trial that the applicant’s evidence at the trial supported only the right wrist injury at the 11 September 2001 accident.  In light of this concession, this court will consider the circumstances of the alleged 11 September 2001 accident and the applicant’s medical condition and treat her application as an application for injury on that day to her right wrist. 

23.Taking into consideration the oral evidence of Madam Chan in court regarding the 11 September 2001 accident, the various statements she made to the Labour Department and at the magistrate court on 27 October 2003, I am satisfied that she lodged her claim for an industrial accident against the respondent at the Labour Department for left wrist injury, because she was concerned throughout this period with her left wrist pain.  According to the medical records in 2002, it seems she did suffer from persistent pain on the left wrist for a prolonged period of time. 

24.After considering all the medical reports and the sick leave certificates, I am convinced that she did have an accident on 11 September 2001, but it was not significantly serious enough to stop her from returning to work on the next day, 12 September 2001, even though she was given a few days of sick leave by the doctors at the Accident & Emergency Department of the Princess Margaret Hospital.  This injury was to her right wrist.  This was amply supported by the doctor’s record and the sick leave certificate issued on 11 September 2002. 

25.It is possible that due to the right wrist injury on 11 September 2001, she had begun to use her left wrist more often, but there was insufficient evidence that it had resulted in the De Quervain’s disease to both her right and left wrists.  For a long period of time after the 11 September 2001 accident she had not returned to see the doctor to seek assistance for her right wrist injury.  The left wrist pain certainly was not caused by any one single accident.  As to how it was caused, the doctor’s medical certificate did not specify.  In any event, we are not concerned with the left wrist injury because it was not caused at the 11 September 2001 accident. 

26.There is also no evidence from Madam Chan that she had injured her left wrist at an accident at Acefair factory during this period of time.  From Madam Chan’s evidence, she clearly did not regard the right wrist injury to be serious because she repeatedly insisted in her statements to the Labour Department that it was her left wrist that was painful, and thus she repeatedly referred to this left wrist in her statements.  She repeated it again at the 27 October 2003 magistrate hearing. 

27.The change of mind of Madam Chan came after the application was made under the Employees Compensation Ordinance.  There was a clear change of tack in the statements made in the preparation of trial and at the trial.  She claimed that she had confused her left hand with her right hand and that she could not tell the word “right” from “left” in Chinese.  She blamed it on her Primary 3 education.  That was the level she attained while she was educated in China.

28.On the other hand, there are clearly statements written to the Labour Department by Madam Chan herself in legible and clear Chinese, she clearly is literate and can write in Chinese.  I am not satisfied, therefore, that she could not tell her left hand from her right hand.  I am not satisfied from the evidence that she meant to write “right hand” when she wrote down in her own handwriting “left hand” or had replaced the “right hand” with “left hand” on 16 January 2003 supplemental statement to the Labour Department. 

29.I am therefore not satisfied that her right wrist was injured so seriously on 11 September 2002 that resulted in the permanent disability of the right wrist.  Her evidence on the left and right wrists injury was unreliable and unsafe to maintain.  I find that although she claimed the 11 September 2001 accident had resulted in the right wrist disability, on a balance of probabilities, I find the applicant had failed to prove her case against the respondent in respect of the 11 September 2001 accident. 

The second accident

30.As to the incident on 8 May 2002, there was ample medical evidence in support of Madam Chan’s right shoulder injury.  She had visited the Princess Margaret Hospital Accident & Emergency Department on the next day 9 May 2002, and she took sick leave consistently complaining to the doctors of her shoulder pain.  There was no mistake as to which shoulder suffered injury this time.  She was clear about her left wrist giving her pain, that she could not exert force using her left hand and she had to use her right hand and arm to pull at the machine which had jammed on 8 May 2002. 

31.I am satisfied that she did injure her right shoulder on 8 May 2002 in the course of employment, and this injury had caused the permanent disability found by the Medical Assessment Board.  I find the evidence of the respondent’s three witnesses to be unreliable.  The respondent had kept all the medical reports and sick leave certificates submitted by Madam Chan, yet denied they had understood the cause of her sick leave. 

32.The third respondent witness, Madam Tam, claimed that Madam Chan’s sick leave was due to her chest pain.  When one looks at the sick leave certificates, the majority of these had certified sick leave for the applicant’s wrist or right shoulder pain.  It is unlikely for an employer of an employee of ten year’s standing, who had been consistently receiving sick leave certificates from this employee and allowing her sick leave  absence from work, to fail to take notice or make enquiries about the type of illness or injury the employee complained about. 

33.Ms Chan admitted that Madam Chan did make a request to her to report the industrial accident to the Labour Department.  Ms Chan claimed she did not do so because she had requested Madam Chan to supply the particulars to her and that Madam Chan had failed to supply her with such particulars, therefore, she did not make any accident report to the Labour Department.  On the other hand, Madam Chan claimed that Ms Chan refused to make the report and told Madam Chan that she should make the report herself to the Labour Department. 

34.I find it is quite unlikely that Madam Chan will refuse to give particulars of the accidents to Ms Chan when Madam Chan had consistently submitted to Ms Chan her sick leave certificates in order to obtain sick leave from work, and in the course of submitting her sick leave she had explained to Ms Chan the cause of her taking sick leave.  And these must have been recorded by the respondent.  Ms Chan had taken the sick leave certificates from Madam Chan and in turn submitted them to Ms Tam’s office.  Therefore, these sick leave certificates were kept by the respondent.  Is it possible that the respondent had no inkling as to why Madam Chan had to take sick leave other than for the one or two incidents of her chest pain?

35.I accept Madam Chan’s evidence that Ms Chan had refused to lodge an accident report to the Labour Department and had told Madam Chan to do it herself, probably because she did not believe the serious nature of the applicant’s injury.  The medical records produced did reveal that Madam Chan had asked the doctors at the Princess Margaret Hospital to grant her sick leave, and she was sometimes not given sick leave by the doctors at the Princess Margaret Hospital at the follow-up consultations. 

36.She then sought treatments at the Sham Shui Po Occupational Health Clinic and obtained more sick leave certificates from this clinic.  This may show she had wanted to stay away from work.  But the records also showed that she attended these clinics and she was seen by doctors and physiotherapists.  These records showed she did suffer from right shoulder pain and that she had complained that the injury was caused at an industrial accident on 8 May 2002, that she did suffer from pain and stiffness, as testified by the Medical Assessment Board assessment certificate. 

37.It is possible she may not deserve the number of days of sick leave given to her due to the right shoulder pain, the Medical Assessment Board in fact allowed her only 15 days of sick leave for her right shoulder injury (see Medical Assessment Board’s assessment certificate).  However, the MAB assessed her loss of earning capacity to be 10 per cent due to her right shoulder injury. 

38.I am satisfied the Medical Assessment Board had reached a right conclusion on the applicant’s right shoulder injury due to the 8 May 2002 accident at work, and I am prepared to allow her the section 9 compensation of $45,446.40, which consists of : $6,312 x 72 x 10%. 

39.The applicant is not claiming section 10 or section 10A compensation.  The total award therefore is the sum of $45,426.40.  Interest is allowed from the date of application to the date of judgment at half judgment rate and thereafter at judgment rate. 

Costs

40.I shall grant costs to the applicant in respect of the DCEC708/2003, and the costs if not agreed, to be taxed, and the applicant’s own costs to be taxed in accordance with Legal Aid regulations. 

41.As to the costs of DCEC707/2003, since I made no award, the applicant will not get costs.  The respondent’s costs in the case of DCEC707/2003 will be borne by the applicant, to be taxed if not agreed.  

Mr E Wong, of Messrs Paul W Tse, assigned by Director of Legal Aid, for the Applicant

Miss Frances Lok, instructed by Messrs Lo, Wong & Tsui, for the Respondent