Wong Chun Tai v. Yau Cheung Hey and Another
Read the full judgment text of DCEC 939/2007 on BabelCite. This District Court judgment.
1. This is a trial of the application brought by the Applicant against the Respondents under the Employee’s Compensation Ordinance, Cap. 282 (the “Ordinance”). The First Respondent, Mr Yau Cheung Hey (“Mr Yau”), was and is at all material times a director of the Second Respondent (the “2 nd Respondent”). By an order of HH Judge Leung dated 15 th April 2008, Mr Yau as the First Respondent was struck out. At the trial, therefore, the remaining parties were the Applicant and the 2 nd Respondent.
Cited by 1 case
|
DCEC 939/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION CASE NO. 939 OF 2007 ------------------------ IN THE MATTER OF AN APPLICATION BETWEEN:
------------------------ Coram: Deputy District Judge Raymond Tsui in Court Date of Trial: 7th& 8th April 2009 Date of Handing Down Judgment: 6th May 2009
------------------------ JUDGMENT ------------------------
1. This is a trial of the application brought by the Applicant against the Respondents under the Employee’s Compensation Ordinance, Cap. 282 (the “Ordinance”). The First Respondent, Mr Yau Cheung Hey (“Mr Yau”), was and is at all material times a director of the Second Respondent (the “2nd Respondent”). By an order of HH Judge Leung dated 15th April 2008, Mr Yau as the First Respondent was struck out. At the trial, therefore, the remaining parties were the Applicant and the 2nd Respondent. 2. Mr Kam Cheung, counsel for the Applicant, and Mr Charles Chan, counsel for the 2nd Respondent, helpfully agreed that for the Applicant’s claim under section 9 of the Ordinance, the amount of compensation should be HK$18,900.00 and for the Applicant’s claim under section 10 of the Ordinance, the amount of compensation should be HK$33,367.00. Both counsel further agreed that there would be no claim under section 10A of the Ordinance. The total amount, therefore, payable by the 2nd Respondent to the Applicant in the present application, subject to my decision on liability, would be HK$52,267.00. 3. In determining the issue of liability, I have to decide whether there was an accident that happened on 21st August 2005 as alleged by the Applicant (the “Accident”). 4. It is common ground that the Applicant had continued working for the 2nd Respondent for the period from 21st August to 9th September 2005 after the Accident. The Applicant’s Case 5. The Applicant had been an employee of the noodle factory in Kwai Chung (the “Noodle Factory”) owned and run by the 2nd Respondent since 1st July 2005. Her duties included cutting the noodles and packing them into cartons. She would then put those cartons onto a trolley provided by the 2nd Respondent and pushed the trolley to the delivery workers for onward delivery to customers of the 2nd Respondent. The distance was about 12 to 15 metres from where she worked to where the delivery workers worked. The Applicant said sometimes the distance would be only 3-4 metres as she would only push the trolley to the entrance. 6. The dimensions of the trolley were 6 feet (height) x 6 ½ feet (length) x 2 feet (width). The trolley was divided into four levels. Four to five cartons of packed noodles could be placed on each level. Each carton weighed about 20 catties. Thus the total weight of a fully packed trolley would weigh about 300 catties. I note that one catty is roughly equivalent to 0.6 kg. According to the Applicant, she had to push the trolley to the delivery workers a few dozen times each day. 7. On 21st August 2005, the Applicant was pushing the trolley along the corridor on the first floor from the factory premises to the lift lobby on the same floor. When she was on the corridor, she noticed that one of the wheels was not working properly so much so that the whole trolley was slanting towards the right. To avoid the trolley from overturning, the Applicant tried, but failed, to stabilize the trolley. The trolley overturned and the noodles on it were scattered onto the floor. At this juncture, a male worker passed through the corridor and helped the Applicant to straighten the trolley up and pick up the noodles. Then the Applicant felt severe pain in her two wrists. 8. The Applicant did not know the name of that male worker. 9. The Applicant rested for a while. She then reported the Accident to Mr Yau and asked for sick leave. Upon inspection of her wrists and finding that there was no bleeding, Mr Yau refused to allow sick leave to the Applicant, saying that there was insufficient manpower in the Noodle Factory. The Applicant thought that she would feel better in a while and she did not want to lose the job. She, therefore, continued with the work, notwithstanding the pain. 10. She went home after work and applied herbalist ointment to the injured wrists. The pain persisted but as she did not want to lose the job, she continued working at the Noodle Factory. She said that she had requested permission three to four times to take leave to visit a doctor but was refused by Mr Yau. Her conditions continued to deteriorate. The Applicant said that there was swelling in her wrists. As the pain aggravated to the extent that she could not sleep because of it, she went to see a Chinese herbalist at Kwong Wah Hospital (“Kwong Wah”) on 10th September 2005. She was prescribed Chinese herbals for application to the wrists. 11. The Applicant also said that she had also visited private bonesetter after she had received treatment at Kwong Wah. But the charges were too expensive. She thus returned to and stayed in China for treatment in an orthopedic hospital. 12. In the mean time, as the Applicant could not work, she asked a lady friend of hers to take up her work. She even returned to the Noodle Factory to teach that lady friend how to do her job. I was informed by Mr Cheung that that lady friend could not now be traced even though a witness statement had been prepared for her and filed with the court on 7th July 2008. 13. Despite the treatment received at Kwong Wah, the conditions of the wrists did not improve. Thus on 15th December 2005, she went to the Accident & Emergency Department of Yan Chai Hospital (“Yan Chai”). She was then referred to the physiotherapy department of Yan Chai. According to the medical report dated 3rd September 2008 from Ms Chan Yan Yan, physiotherapist of Yan Chai, the Applicant was referred for physiotherapy on 3rd January 2006. Physiotherapy appointment on 27th January 2006 was given to the Applicant. However, the Applicant failed to attend the physiotherapy session. 14. It is the Applicant’s case that even though she had received the above-mentioned treatment, the conditions of her wrists did not improve as a consequence of which she was still unable to return to work. 15. It is worthy to note that as to her present conditions, the Applicant pointed out that she still felt pain and numbness in her wrists. The range of the wrist movement was decreasing. Because of the pain and the reduced range of movement, she had difficulties in using chopsticks, writing and wringing towel. She also said that she could not lift heavy objects. 16. Before the Accident, her wrists had not suffered from any injury. The 2nd Respondent’s Case 17. Mr Yau, who gave evidence for the 2nd Respondent, was and is a director and a shareholder of 70% of the shares in the 2nd Respondent. His wife was the only other director of the 2nd Respondent. She was responsible for matters relating to the bank while Mr Yau was responsible for the purchase of materials. 18. Mr Yau denied that the Accident happened on 21st August 2005 as alleged by the Applicant. He said that if the Accident did actually happen, there was no reason why the 2nd Respondent would not report the Accident to the insurance company. It is also his evidence that the 2nd Respondent was financially strong and was able to make compensation to the Applicant. 19. Mr Yau said that the 2nd Respondent first received the Form I in August 2006. Before that date, the 2nd Respondent had not received any notice of the Accident. He also said that if the Applicant had to ask for sick leave, she would have to apply the same from her supervisor who was authorized to deal with sick leave application. In terms of chain of command of the 2nd Respondent, above the supervisor would be the manager and above the manager would be himself. He would not deal with such application for sick leave. 20. Mr Yau referred to the insurance policy schedule and said that the insurance company refused to take up this case because of late notification. I pause to note that the insurance policy was not before the court and I do not know the terms whereby the insurance company was entitled to repudiate the insurance policy. 21. In cross-examination, Mr Yau admitted that he did not know whether or when the 2nd Respondent had issued any written request to the insurance company to take up the present application. Nor did he know whether the insurance company gave any written or oral reply. 22. Mr Yau confirmed that there was only one employee compensation insurance taken out by the 2nd Respondent. He then listed the number of employees in different departments of the 2nd Respondent. In particular, he said that there were 20 odd delivery workers, 10 noodle workers and 7 clerical staff. All in all, there were about 40 employees working for the 2nd Respondent. Yet, the employee compensation insurance policy schedule before the court only covered a total of 6 employees. Mr Yau then explained that there was another insurance policy for the delivery workers as the delivery work was contracted out to another company. But he did not know the name of that other delivery company as he was not responsible for it. 23. Leaving aside the delivery workers, the number of noodle workers was still beyond the number covered by the insurance policy. Mr Yau explained that it was because the number of noodle workers fluctuated with the business. It was thus suggested that, because of this, the 2nd Respondent did not report the Accident to the insurance company. Mr Yau first replied that since the Applicant did not provide any information, the 2nd Respondent could not ask the insurance company to take up the application. When I tried to clarify with him his answer, he said he did not know whether the 2nd Respondent had reported the claim to the insurance company. 24. Mr Yau also confirmed that the properties of the 2nd Respondent were charged to the banks to secure overdraft facilities for the running of the business of the 2nd Respondent. He said that he did not know the extent of the overdraft facilities. I find it strange that as the majority shareholder of the 2nd Respondent, Mr Yau did not know such crucial information which would tell him the financial strength of the 2nd Respondent. Joint Medical Report 25. The Applicant attended a joint medical examination on 18th December 2008 conducted by Dr Lau Hoi Kuen (“Dr Lau”) and Dr Peter MK Tio (“Dr Tio”). The Applicant brought with her her granddaughter in a perambulator to the medical examination. A joint medical report was prepared (the “Joint Medical Report”). 26. During the medical examination, the Applicant complained of diffuse tenderness over both wrists and of pain with passive flexion and extension of the thumb at the MCP joint and the IP joint. She also complained of pain with passive flexion and extension of the IP joints of the other fingers. The power of handgrip as measured by the Jamar dynamometer recorded zero readings for both hands. 27. Both doctors noted that when the Applicant attended the physiotherapy session at Yan Chai on 3rd January 2006, the diagnosis was left De Quervain’s Disease. 28. The following extract from the Joint Medical Report is useful in understanding the observation of the two doctors:
29. Both doctors further noted that the exact diagnosis of her wrist pain (for example whether it was the ligament or tendon problem) was not mentioned in the medical report of the Department of Orthopedics of Yan Chai. 30. In cross-examination, the Applicant was asked how she managed to lift up her granddaughter from the perambulator. She replied that she did it by using her forearms (i.e. the part between her elbow and her wrist). She also said that her granddaughter did not like to run around and did not need the Applicant to hold her in her arms. In my view, however, it must be difficult and dangerous to control the perambulator and lift up her granddaughter if the Applicant could only use her forearms. 31. The Applicant was observed by both doctors to be able to buckle up the safety belt by using her thumbs without expression of pain or any difficulty. This of course would cast some doubt on her claim that she used her forearms to lift up her granddaughter from the perambulator. But what is more important is that such use of thumbs was inconsistent with the limited range of movement of the wrists and thumbs as shown by the Applicant during the medical examination and her complaint of pain with any movement of her thumb and the other four fingers. 32. Both Dr Lau and Dr Tio agreed that the callosity observed over the tip of her thumbs was “good objective evidence that [the Applicant] has been actively using her thumbs in activities of daily living.” 33. As noted in the extract of the Joint Medical Report above, both doctors also agreed that the Applicant was exaggerating her symptoms. 34. Dr Tio also pointed out that the alleged serious wrist injury was inconsistent with the fact that the Applicant continued to work for nearly three weeks after injury without medical treatment. The Applicant explained that right after the Accident she could still use her fingers to do her work. But the injury became more serious so that on or about 9th September 2005, she could no longer use her fingers because of the pain. Assessment of Evidence 35. In assessing the credibility of the Applicant, I have reminded myself that exaggerating her symptoms does not necessarily mean that the Accident did not occur. The exaggeration could be, however, one of the factors that could, and should, be taken into account when her credibility is assessed. When assessing her evidence relating to the inconsistencies in the documents before the court, I have also reminded myself of the fact that the Applicant is not well educated. 36. As far as the 2nd Respondent’s or Mr Yau’s evidence is concerned, I have also reminded myself that failure to take out proper insurance policy, or to report the Accident to the insurer, does not necessarily mean that the Accident as alleged by the Applicant did occur. But this failure of taking out proper insurance, of course, could be one of the reasons why, should the Accident have occurred, the 2nd Respondent failed to claim insurance compensation from the insurer. Again, this issue may have bearing on the issue of credibility of Mr Yau. 37. Both witnesses appeared to me to be hesitant and evasive. Very often than not, when a simple question was put to these two witnesses, they always rambled with the answers they wished to give instead of responding with direct answers. 38. Such being the case, I do not think I could rely on the oral evidence of these two witnesses. I have to resort to the contemporaneous documents available to the court. 39. The Applicant was extensively cross-examined by Mr Chan on the inconsistencies between the documentary evidence and her evidence. The Application and Form I 40. First of all, in paragraph 9 of the Application, she stated that she telephoned and informed Mr Yau of the Accident on 29th December 2006. But her evidence was clearly that she mentioned the Accident to Mr Yau on 21st August 2005. The Applicant said that she gave the Notice of Accident (Form I) together with the medical reports to the 2nd Respondent in December 2005 when she was accompanied by her son. The Applicant explained that it was a mistake when paragraph 9 was answered in such a way. I think this explanation is too convenient. For one of the issues in this case is whether the Applicant had informed Mr Yau of the Accident on 21st August 2005. According to paragraph 9 of the Application, she had not because the notification was made on 29th December 2006. If the Applicant meant to say that 29th December 2006 was the date when the Labour Department (the “LD”) informed the 2nd Respondent, it was also wrong because the LD informed the 2nd Respondent by a letter dated 11th August 2006. 41. On one of the forms (“First Form I”) (p. 60-61 of the Hearing Bundle) completed by her reporting the Accident to the LD, the form was dated 11th August 2005 which was even before the supposed date of accident of 21st August 2005. The Applicant said it was a mistake. I accept this explanation as it is clearly written in Column D that the date of the Accident was 21st August 2005. 42. When it was put to the Applicant that she had failed to describe how the accident occurred in Column D of the First Form I, she said that she did not know how to fill in the First Form I as supported by the fact that she even stated the name of the 2nd Respondent incorrectly. 43. The Applicant then attended the LD on 21st August 2006 to correct the First Form I (“Second Form I”) by amending the First Form I (p. 99-100 of the Hearing Bundle). The Accident was then added in Column D of the Second Form I. She said that it was added when she was asked by the staff of the LD whether she had anything to add to the First Form I. She thought it would be clearer to add the Accident to Column D. The Second Form I bore the chop of the LD. 44. There was a third Form I (the “Third Form I”) (p. 103-104 of the Hearing Bundle) which did not bear the chop of the LD. But the date of the Form was changed to 21st August 2005. One of the squares denoting “twisting” in Column F (Nature of Injury) was, for the first time, ticked. The Chinese words “感覺痛楚” that appeared in the Second Form I could not be found in the Third Form I. 45. There was no dispute that the Third Form I was used in the common law claim of the Applicant in relation to the same incident commenced in the Personal Injury List of the District Court. The Applicant first said that she had given the Third Form I to the LD but when later she was asked whether she had informed the LD about the Third Form I, she said that she could not remember. 46. I further note that whenever the Applicant was asked about the various corrections made in these Form I, she always only referred to the dates incorrectly put there. As to the corrections other than those relating to the dates, she was evasive. 47. There were some disputes as to whether the Third Form I was a photocopy of the Second Form I or the First Form I. The description of the accident in Column D shows that the Third Form I could not be the photocopy of the First Form I. But the Third Form I could not be a photocopy of the Second Form I as the former did not bear the chop of the LD. But I think the disputes were not material. What is material is whether the corrections or amendments were justified and reflected what actually happened on 21st August 2005. 48. In the First Form I, in Column D where the Applicant was required to write down how the Accident occurred and the work undertaken by the Applicant at the time of the Accident, the Applicant wrote:
49. She was asked a specific question to describe the Accident. But all she stated was that she felt pain when she was working. 50. In the Second Form II, the Applicant mentioned that the injury was sustained when she was pushing the trolley. I note that this is the first time the trolley was mentioned. The Applicant explained that she was asked by the staff of the LD whether wanted to add anything to First Form I and that was why the trolley was added in the Second Form I. But that does not explain why she failed to do so in the First Form I. Medical Reports 51. The Applicant was also referred to the medical reports of Kwong Wah for the visit on 10th September 2005 when the Applicant first visited for treatment. There was no mention of the Accident in this report. In fact, the first time that the Accident was mentioned was in a medical report for the visit on 29th January 2008. The Applicant insisted that all along she had mentioned the Accident to the doctor. 52. When the medical reports are looked at closely, it could be gathered that in between these two visits, there were four visits to Kwong Wah for diagnosis by doctors and two visits for collection of medicine when she would not be seen by a doctor. Of those four visits when she was seen by a doctor (or actually by two other doctors), there was no mention of the Accident in the doctors’ reports. Thus if the Applicant had told the doctors of the Accident, it would mean that not just one, but three, doctors had failed to record what she said. 53. Between the period between 21st April 2006 and 15th August 2008, the Applicant attended Yan Chai 13 times. But all the reports from Yan Chai did not mention anything about the Accident or the trolley. 54. It was further suggested by Mr Chan to the Applicant that she only mentioned the Accident on 29th January 2008 when she had read the affirmation of Mr Yau dated 24th January 2008 which commented that the Applicant did not have any medical report in support. She replied that she would not go to Kwong Wah to see a doctor on 10th September 2005 if she had not suffered any injury. Mr Cheung suggested that there was no evidence showing that the Applicant had read the said affirmation of Mr Yau. 55. In my view, however, one must take note of the timing of the visit. Before the Applicant’s visit to Kwong Wah on 29th January 2008, her last visit to Kwong Wah was more than two years ago on 5th January 2006 to collect medicine. Before that, she was last seen by a doctor on 29th December 2005. The Applicant was admitted to the Orthopedics Department of Yan Chai on 21st March 2006 for wrists pain and was discharged the next day. Dr Lau and Dr Tio commented that the clinical assessment and investigations of this hospitalisation were unremarkable. The hospitalisation was followed by the 13 visits to Yan Chai. 56. Even if I accept that the Applicant had visited private bonesetters a few times and that she had spent some time in China receiving treatment shortly after the Accident, there is still a long period of time where there is no record of her mentioning the Accident or the trolley between 29th December 2005 to 21st August 2006 when the Second Form I came into existence. This should also be viewed against the fact that there is no mention of the Accident to the doctors of Yan Chai either, or at least there is no such record, bearing in mind that she started visiting the Orthopaedics & Traumatology Department of Yan Chai since 21st April 2006. The purpose of the visit to Kwong Wah on 29th January 2008 was suspicious, to say the least. 57. The Applicant said that initially she did not want to claim employee compensation because she wanted to return to the Noodle Factory to work after she had recovered. She was afraid that if she claimed employee compensation, she would lose the job. As far as her attempt to explain the absence of any record of the Accident in the medical reports of the doctors of Kwong Wah and Yan Chai is concerned, I do not see any causal connection between the said absence of any record in the medical reports and her initial intention. She was free to tell the doctors of the cause of her injury and, in all likelihood, doctors would usually ask the cause of the injury which would be useful in the diagnosis. At the same time the Applicant could still refrain from instituting any claims against the 2nd Respondent. 58. Having said all that, however, I still have to bear in mind that the unsatisfactory record of the Accident and the cause thereof may be a result of the Applicant’s inexperience in dealing with such matters. Other Considerations 59. There are other considerations that I would take into account when I determine the credibility of the witnesses and whether the Accident did occur. 60. Mr Chan submitted for the 2nd Respondent that if the Accident did occur, there was more reason for the 2nd Respondent to settle the case by paying the Applicant off since the inadequate insurance cover would land the 2nd Respondent into more trouble if the same was exposed. This may be true but the fact remains that there is no evidence of reporting the claim to the insurer and the insurer replying. I would have thought it is more likely than not that such documents exist should any application had been made to the insurer. 61. Dr Lau commented in the Joint Medical Report that the pain in the wrists of the Applicant was consistent with the circumstances as described by the Applicant. Whether this carries any weight depends on the circumstances of the case. If it is a complicated injury that leads to complicated symptoms, the consistency would carry more weight. In our case, given the relatively simple nature of the injury and the alleged cause thereof, I do not think the comment of Dr Lau is conclusive as to whether the Accident did happen. I agree with Mr Chan’s submission that Dr Lau’s comment could not be taken to mean that the injury could only be consistent with the Accident having occurred. 62. Mr Cheung submitted for the Applicant that the discrepancies in her evidence and the documentary evidence were trivial and that if those discrepancies did not exist, the Applicant’s story would be too consistent to be true. I agree that when I consider those discrepancies, the personal and educational background of the Applicant should also be taken into account. But another more important consideration is always whether those discrepancies could and should have been avoided in the circumstances. I have discussed those discrepancies above. I do not think that the Applicant had given any convincing explanations. 63. It is common ground that after the Accident, the Applicant had still worked for the 2nd Respondent for about two more weeks before she visited the doctors at Kwong Wah. Bearing in mind the nature of her work, in particular, the moving of very heavy objects, namely, the trolley which weighed about 300 catties when it was fully loaded with packed noodles, I find that it is improbable that she could still manage to continue with the job. 64. There was another discrepancy in the Applicant’s evidence not mentioned above. The Applicant changed from visiting Kwong Wah to visiting Yan Chai in January 2006 as, according to her, there was no improvement in the conditions of the wrists. She confirmed that before she went to Yan Chai, she had already attended the LD. Yet her evidence was that she first reported the accident to the LD on 11th August 2006 which was much later than the date she visited the doctor at Yan Chai. 65. It is also the submission of Mr Cheung that the applicant very much cherished the job with the 2nd Respondent. Yet the fact is the Applicant defaulted the appointment for physiotherapy on 27th January 2006. There was no explanation from the Applicant. It is her case that she would like to return to work once she had recovered from the injury and she wanted to earn her living by working hard. Bearing in mind the severity of the pain in the wrists, there was no reason why she did not make use of any opportunity to improve the conditions of her wrists. Conclusion 66. Bearing all the above in mind, I come to the conclusion that both the Applicant and Mr Yau were not honest in their evidence. I do not accept their evidence. 67. In my view, as far as the Applicant is concerned, there are too many important discrepancies in her evidence to be ignored. What is particularly important is the late mention in the documents by the Applicant of the cause of the injury and how the Accident happened. I think she had had ample opportunity to state the same at an early stage. But she failed to do so. This renders her version doubtful. 68. As far as the 2nd Respondent is concerned, it is just incredible that as a majority shareholder and a director of the 2nd Respondent, he practically only knew matters relating to purchase of materials. 69. There being no evidence of any written request to the insurance company to take up the present application or any evidence of repudiation of liability by the insurance company, Mr Cheung argued that there was no such evidence because the 2nd Respondent did not have sufficient insurance cover for the employees and thus could not report the Accident to the insurance company. In my view, failure to take out proper insurance cover does not necessarily preclude the possibility of other reasons of not reporting the case to the insurance company. In other words, they are not mutually exclusive. And one of those reasons could be simply that there was no such Accident. 70. The burden of proof is on the Applicant on a balance of probabilities to show that the Accident did arise out of and in the course of her employment with the 2nd Respondent. I am of the view that the Applicant has failed to discharge this burden. 71. I shall therefore order that:-
Representation: Mr. Kam Cheung instructed by Messrs Winnie Leung & Co., assigned by the Director of Legal Aid, for the Applicant. Mr. Charles J. Chan instructed by Messrs Johnnie Yam, Jacky Lee & Co. for the 2nd Respondent. Appeal dismissed: see CACV156/2009 dated 8 March 2010 |
Other judgments that cite this case