Khan Amir v. Kwok Yui Chor and Another t/a Chi Shing Environmentalprotection and Recycling Co

DCEC87/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 87 OF 2007

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BETWEEN

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Coram: Deputy District Judge Frederick HF Chan (in Court)

Dates of hearing: 13^th and 15^th October 2008

Date of handing down the judgment: 17^th October 2008

JUDGMENT

The Claim

1.The Applicant is claiming for employees’ compensation under the Employees’ Compensation Ordinance (Cap. 282) (“the Ordinance”) from the Respondent in respect of an accident which happened on 2^nd June 2006 when the Applicant was working as the employee of the Respondent (“the Date of Accident”). The Applicant was born on 1^st August 1975 and he only speaks Punjabi.

2.There is no dispute that on the Date of the Accident, the Applicant was instructed by the Respondent to unscrew and dismantle a switchboard machine when it toppled and fell on the Applicant. His back was thereby injured (“the Accident”). The Accident was subsequently investigated thoroughly by the Labour Department.

History

3.The essential procedural history may be chronicled thus:

• On 22^nd January 2007, the Applicant took out the present EEC proceedings to claim for employees’ compensation[1];
• On 9^th March 2007, Messrs. W. K. To of solicitors filed the notice to act on the Respondent’s behalf;
• On 11^th April 2007, the Respondent (with the aid of Messrs. W. K. To) filed the Answer which said:

“4.       … The Respondent avers that the Respondent had already instructed the Applicant to unscrew the machine in question from left to right prior to the alleged accident in order to protect the Applicant from injury, but the Applicant violated the Respondent’s instructions and unscrewed the said machine from right to left. In this regard, if the Applicant sustained any personal injury as alleged, which is denied, the injury to the Applicant is attributable to his serious and willful misconduct or that an injury by accident arising out of and in the course of his employment is deliberately aggravated by the Applicant, any compensation claimed in respect of that injury shall be disallowed under section 5 of the Ordinance”;

• On 2^nd February 2008, the Respondent filed a notice to act in person and Messrs. W. K. To came off the record as the Respondent’s solicitors;
• On 2^nd February 2008, Mr. Mak Wah Cho of the Respondent (“Mr. Mak”) wrote a letter (in Chinese) to the Registrar of the District Court and said that given that he is now acting in person and without legal representation, he would request that, in future, if the Applicant should wish to serve documents on him, the documents should be in Chinese;
• According to the Form 9 dated 1^st February 2008 issued by the Employees’ Compensation (Ordinary Assessment) Board, the Applicant’s injury was “back injury resulting in (i) fracture of L3 and L4; (ii) back stiffness and pain” and the loss of earning capacity was assessed to be 22%.

The procedural twist

4.This case was scheduled before me for trial on liability and quantum of the employees’ compensation for 1 day on 13^th October 2008. However, on 3^rd October 2008, the Applicant’s solicitors (Messrs. Massie & Clement) filed the Supplemental List of Documents[2] (“the Supplemental List”) and included an accident report dated 3^rd October 2006 which was prepared by a Mr. Wong Koon Wah who was Occupational Safety Officer I of the Labour Department (“the Accident Report”).

5.It should be noted that:

(a)    Between the date of the Supplemental List and the date of the 1-day trial, there were only 4 working days;

(b)   The Applicant has not issued a hearsay notice to include the Accident Report;

(c)    There is no Chinese translation of the Accident Report;

(d)   The Accident Report was included as part of the Hearing Bundle[3] which was filed by the Applicant for the purpose of trial;

(e)    Before the date of trial, the Applicant has not taken out an application for leave to adduce the Accident Report at the trial proper;

(f)     The Accident Report contains expert, hearsay and opinion evidence on the cause of the Accident and the Applicant has not obtained leave of the Court to adduce expert evidence;

(g)    On 9^th October 2008 (2 working days before the trial), the Applicant’s solicitors filed an affirmation of service prepared by Leung Lik Hang who deposed that:

“I did on … 8^th October 2008 serve the Respondent Mak Wah Cho …. with a copy of the Supplemental List … together with a copy Trial Bundle filed herein on 8^th October 2008, by sending the same by ordinary post in an envelope”; 

(h)    The Applicant has not applied for leave of the Court to adduce expert evidence under O. 38 r. 36 Rules of the District Court (Cap. 336, Sub. Leg.) (“RDC”) which provides that:

“(1)     Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial …”.

The Respondent’s defences

6.On paper, the Respondent sought to put forward the following defences to resist the Applicant’s claim for employees’ compensations under the Ordinance:

(a)    The Accident was caused by the Applicant’s acts in not complying with the instructions he received from the Respondent on how to dismantle the switchboard;

(b)   The disobedience of the Respondent’s express instructions on the part of the Applicant constituted serious andwilful misconduct (“the Misconduct Defence”) under section 5 of the Ordinance which provides that:

“(3)     In any proceedings under this Ordinance where it is proved that the injury to an employee is attributable to the serious and willful misconduct of that employee, or that an injury by accident arising out of and in the course of his employment is deliberately aggravated by the employee, any compensation claimed in respect of that injury shall be disallowed; except that where injury results in death or serious incapacity, the Court on consideration of all the circumstances may award the compensation provided by this Ordinance or such part thereof as it shall think fit”;

(c)    Further and alternatively, the way in which the Applicant dismantled the switchboard was hazardous in that it was an added peril and not incidental to his employment (“the Added Peril Defence”);

(d)   Therefore, in the exercise of the Court’s unfettered discretion under section 5(3) of the Ordinance, the Applicant’s claim for employees’ compensation should be dismissed.

7.On the Misconduct Defence, I would refer to the following case law:

(a)    About 102 years ago and in the landmark decision of the House of Lords in Johnson v. Marshall Sons & Co. Ltd. [1906] AC 409, Lord James of Hereford said at pp. 412-413:

“… in order to determine this case it is necessary to bear in mind the scope and object of the Workmen’s Compensation Act. The main object was to entitle a workman who sustained injury whilst engaged in certain employments to recover compensation from the employer, although he (the employer) was guilty of no fault. The intention was to make “the business” bear the burden of the accidents that arose in course of the employment, and relief from this liability is not found even if the injured workman be guilty of negligence. The doctrine of contributory negligence was superseded by the Act. But it was thought that if no check was placed on the workmen they might recklessly induce accidents of a serious character affecting many lives and much property, and so the Act of 1897 contains the provision that if the workman be guilty of “serious and willful misconduct” he will be disentitled from recovering compensation.

Now it is impossible to give any general definition of the words “serious and willful misconduct”; application of them must be made to each case as it arises. But the use of the word “serious” shows that misconduct alone will not suffice to deprive the workmen of compensation. The class of misconduct that would do so might well be represented by such instances as if a workman, whilst working in a mine on certain seams of coal, struck a match and lit his pipe, or if he walked into a gunpowder factory with nailed boots, refusing to use the list slippers provided for him. Of course, these are but instances illustrating conditions of absolute disregard of the lives and safety of many”;

(b)   Lord Atkinson crisply observed at p. 415:

“In none of the authorities to which we have been referred has it been attempted to define “serious misconduct”. It is scarcely susceptible of precise definition. What amounts to serious misconduct in any given case is a question of fact to be determined by the judge of first instance on the facts of that case”;

(c)    Lord Loreburn, the Lord Chancellor, added at p. 411:

“… A workman was found fatally injured in a lift on the respondent’s (his employer’s) premises without a load, and no one was allowed to use the lift unless he was in charge of a load. That is all we know. It was an accident, and the widow, now appellant, must have compensation under the Act of 1897, unless the employers can prove that the injury was “attributable to the serious and willful misconduct” of the workman. That the burden of proving this was on the employer is beyond question”;

(d)   In the Court of Appeal decision of Yuen Yuk Ying v. Chan Kam Wing (t/a Kam Bo Real Estate Co.) [1997] 1 HKC 198, the late Mr. Justice Godfrey JA (as he then was) commented on section 5(3) of the Ordinance and said at pp. 203-205:

“The issues

On this basis, the issues which we have to decide may be formulated as follows:

(1)   Did this accident arise (i) ‘out of’ and (ii) ‘in the course of’ the employment?

(2)   If it did, was it attributable to the employee’s ‘serious and willful misconduct’?

(3)   If so, was it a proper exercise of the judge’s discretion here to deny compensation altogether?

… The judge has a discretion … to deprive the applicant of compensation …

The Ordinance provides no guidance as to what are the ‘circumstances’ which the court should or should not take into account in exercising its discretion; nor is there any relevant authority which does so …

We would construe the expression ‘in all circumstances’ widely, there being no warrant for construing it narrowly; and so we would hold that a court exercising this discretion is entitled to take into account all the circumstances of the case as revealed by the evidence; all the circumstances peculiar to the accident, and all circumstances peculiar to the victim”.

8.Regarding the Added Peril Defence, I would refer to the House of Lords decision of Stephen v. Cooper [1929] AC 570 where Lord Hailsham, the Lord Chancellor, succinctly summarized at pp. 573-574:

“But it is well established by a series of decisions of your Lordships’ House that, apart altogether from the question of serious misconduct, if the accident arises from some peril to which the workman has exposed himself by his own conduct and which he was not obliged to encounter by any term of his contract of service, the accident cannot be said to arise out of his employment. Lord Dunedin states the principle in Plumb v. Cobden Flour Mills Co. [1914] AC 62, 68 as follows: “A risk is not incidental to the employment … when it is an added peril due to the conduct of the servant himself”; and Lord Haldane explains the expression “added peril” in Lancashire and Yorkshire Ry. Co. v. Highley [1917] AC 353, 361, 365, as meaning a peril “voluntarily super-induced on what arose out of his employment, to which the workman was neither required nor had authority to expose himself” …”.

9.Mr. Richard Clement (solicitor for the Applicant) also relied on section 5(4) of the Ordinance which provides that:

“For the purposes of this Ordinance –

…

(b)  an accident to an employee shall be deemed to arise out of and in the course of his employment, notwithstanding that the employee was at the time when the accident happened acting in contravention … of any orders given by or on behalf of his employer … if such act was done by the employee for the purposes of and in connection with his employer’s trade or business”.

10.Regarding the Accident Report, I would refer to Hong Lok School & Others v. Chow Sai Yiu & Others [2003] 2 HKLRD 782. There, the plaintiff on the 1^st day of the trial, produced a supplemental list of documents and sought to rely on it at trial; the defendant objected to the late discovery of documents; Deputy High Court Johnson Lam (as he then was) took the opportunity to provide some incisive guidance on the procedural aspects of late discovery at the commencement of a trial.

11.His Lordship said at pp. 784-785:

“4. Although discovery is a continuing obligation and supplemental lists of documents have to be filed from time to time to fulfill such obligation, a litigant giving late discovery should anticipate his opponent complaining about the same. In a proper case, the court may consider adjourning a trial in order to give the other side a proper opportunity to look into issues arising out of these new documents. In most cases, the party giving late discovery would also need to serve additional hearsay notice to enable him to adduce those new documents at trial. The requirement in s. 47A(2) of the Evidence Ordinance (Cap. 8) is that the notice should be served in a manner as is reasonable and practicable in the circumstances for the purposes of enabling the other parties to deal with any matters arising from its being hearsay. However, s. 47A (4) provides that a failure to comply with sub-s. (2) shall not affect the admissibility of such evidence. But this would have bearing on costs and weight to be attached to such evidence.

5.  Section 47(1) of the Evidence Ordinance provides that the court in certain   circumstances could exclude hearsay evidence. Sub-section (1) (b) laid down the criteria:

… the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.…

6.   In the light of the above, I am of the view that it behoves a litigant giving discovery at the eleventh hour (as in the case of the plaintiff here) to provide the court and the other side with full and accurate information at least as to the following to enable the court to exercise its discretion properly in dealing with possible objections from his opponents:

(a)  the reasons why these documents were not disclosed earlier;

(b)  the provenance and the makers of these documents;

(c)  the relevance of these documents to the issues before the court;

(d)  the availability and non-availability of the makers to attend trial for cross-examination in case his opponents make an application under s. 48”.

12.In the Hong Lok School’s case, the plaintiff subsequently adduced an affirmation to explain the pertinent circumstances of the belated supplemental list and after considering all circumstances of the case, his Lordship allowed the new documents to be admitted as evidence at trial.

13.In the present case, on 13^th October 2008, Mr. Clement had advisedly confirmed to me that the Applicant would not rely on the Accident Report as part of the evidence and the trial could proceed on that basis. He also candidly confirmed to me that:

(a)    In the present EEC proceedings, he would only proceed with the Applicant’s claims for employees’ compensation against Mr. Mak alone and the Applicant would not pursue his claims against Mr. Kwok Yui Chor whose name also appeared in the present proceedings;

(b)   In 2006, the Labour Department had issued 2 summonses TMS 10666 and 10667 of 2006 against Mr. Mak for failing to take reasonable precautions to ensure the Applicant’s safety on the Date of Accident;

(c)    The trial of the two summonses was concluded in November 2007 and Mr. Mak was acquitted of the two summonses after trial.

14.On 15^th October 2008[4], the trial proceeded in Mr. Mak’s absence. The Applicant testified. I agree with Mr. Clement’s submissions that the Respondent has the burden of making good the Misconduct Defence and the Added Peril Defence and he has not adduced any evidence to do so. Instead, he chose to absent himself from the trial. Therefore, he submitted, I should reject the allegations of the Respondent.

15.On the basis of the undisputed evidence placed before me and on the balance of probabilities, I am satisfied that the Applicant was injured on the Date of Accident in the course of his employment with Mr. Mak as the Applicant had alleged.

Quantum

16.On quantum of the employee’s compensation, I would hold that:

(a)    In respect of the loss of earning capacity under section 9 of the Ordinance, the Applicant should recover HK$126,255.36[5] and there should be interest on this sum from the Date of Accident at half judgment rate until the date of judgment;

(b)   In respect of the claims for loss of earnings for the sick leave period of 227 days under section 10 of the Ordinance, the Applicant should recover HK$43,041.60[6] and there should be interest on this sum from the Date of Accident to the date of judgment at half judgment rate;

(c)    In respect of the medical expenses incurred by the Applicant under section 10A of the Ordinance, the total amount should be HK$3,000[7].

17.A summary of the quantum appears thus:

Orders

18.I further order that there should be interest on the sum of HK$125,104.96 at full judgment rate of the District Court from the date of judgment to the date of payment. Costs of the present proceedings should also be paid by the Respondent to the Applicant, to be taxed if not agreed, on the District Court and the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Representations:

Mr. Richard Clement of Messrs. Massie & Clement, solicitors for the Applicant;

The Respondent was absent.

[1]In the Written Opening of the Applicant dated 9^th October 2008, the total amount of employees’ compensation claimed was HK$125,104.96 plus interest.

[2]The Applicant’s List of Documents was dated 24^th April 2007 and the documents mentioned therein were covered by a Hearsay Notice of the Applicant dated 24^th April 2007.

[3]At pp. 40-48 of the Hearing Bundle.

[4]The trial could not proceed on 13^th October 2008 because a Punjabi interpreter was not made available.

[5]HK$5,978 x 96 x 22%

[6]HK$5,978 x (277/365 days) x 12 x 0.8

[7]HK$60 x 50 visits to the government clinics.