Mohammad, Amjad v. John M. Pickavant & Co
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DCEC1789/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 1789 OF 2006 -------------------- IN THE MATTER OF AN APPLICATION BETWEEN:
-------------------- Coram : His Honour Judge Chow Dates of Hearing : 13th, 16th – 19th February and 3rd April 2009 Date of Handing Down Judgment : 11th May 2009 Judgment 1.This is the Applicant’s application for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”) in respect of the injuries he sustained on 1.3.2006 during the course of work with the Respondent. The Respondent avers that the Applicant inflicted the injuries on his own body; hence he is not entitled to any compensation. The accident 2.It is the Applicant’s case that at about 9.30 a.m. on 1.3.2006, he met a client (Ishtiaq Hussain) of the Respondent and his brother Iftikhar Hussain at the lobby of the building at Two Grand Tower, No. 625 Nathan Road, Kowloon and they went up together to the Respondent’s office at Rooms 1501-2, Two Grand Tower. He had a meeting with Ishtiaq Hussain inside his room in relation to a case handled by the Respondent, while Iftihar Hussian was waiting at the reception area. At about 10.15 a.m. he needed some staples. He tried to look for Miss Eva Chan (the Respondent’s accountant clerk) to get some staples. No response came from her. So he walked outside his room towards the store-room behind the reception area in order to get the staples. While walking along the walkway to the store-room he tripped upon a A4 size paper box on the walkway. He lost balance; his body went forward and hit the reception table, which then collapsed. As a result he fell on the floor and sustained injuries. The Hussain brothers, Patrick Yeung (the Respondent’s employee) and his wife Begum Waheda (the Respondent’s listing clerk) assisted him to get up. They took him to his room. After resting for a few minutes, his wife drove him to the Pamela Youde Nethersole Eastern Hospital (“the Eastern Hospital”) with the Hussain brothers. 3.The Defence Counsel submits that apart from Miss Lam Wai Nga (one of the Applicant’s witnesses), the Applicant’s other witnesses (Begum Waheda, and Ishtiaq Hussain) are not reliable witnesses. They were evasive and exaggerated their evidence on occasions. Their explanations on matters put to them are unreasonable. He raises the following examples to demonstrate this point:
Whether there was an accident? 4.The Defence Counsel submits that during cross-examination, the Applicant said that his right leg kicked onto an A-4 paper box. At the time of the fall, he was 4½ feet from the reception table. His forehead touched the reception table first. He crossed his arms and put them in front of his forehead to protect his forehead from getting hurt. Then the whole table collapsed and he fell onto it. He fell almost flat on the floor and the monitor of a computer fell onto his back between his neck and right shoulder. The posture of the Applicant as described by him and his witnesses after the fall is diametrically opposite to the evidence of the Respondent’s two witnesses. 5.The Respondent’s case is based on what Patrick Young and Eva Chan saw. They found that the Applicant was lying with his back leaning against the reception partition. Eva Chan said that she did not know how the Applicant had fallen. She admitted that after hearing a loud noise, she hesitated 1 to 2 seconds before she turned around to see what had happened. Patrick Young stated that there was a time gap after hearing a loud noise before he came out from his work place and reached the scene of the accident. In her witness statement Eva Chan said that Patrick Young arrived within 10 seconds of the loud noise. Both of them did not witness the Applicant’s fall. So there is nothing to contradict the Applicant’s evidence regarding his fall. The Defence Counsel’s suggestion that the Applicant did not fall forward onto the reception table is simply not supported by evidence. 6.The Defence Counsel submits that the Applicant should have reported forehead injury and right wrist injury immediately on his admission. No documents show that he did complain on these areas. The treating doctor at the Accident & Emergency Department (“A & E Department”) made a note that the Applicant had no wound or haematoma at the back of the head. So the doctor had checked the back of his head, obviously after the Applicant’s complaint. The Applicant complained of neck and shoulder injury. So it would be natural for the doctors to check the back of his head as well, because it is close to the neck and the shoulder. The Applicant did not suffer forehead injury because he used both arms to protect his head when he fell.I do not accept the submission that the sites of the injuries are consistent with the situation that the Applicant’s back was facing the reception desk. 7.The Defence Counsel submits that it is incredible that the monitor fell on him and hit his right shoulder. The Applicant fell on one end of the reception desk. If he fell forward, the monitor should come into contact with the left side of his body instead of hitting his right shoulder. If someone pushes a table to cause it to fall, things on top of the table will fall in the same direction of the fall. It is very difficult or even impossible for the things of the table to move against gravity and fall towards the opposite direction. 8.The desk was broken twice but had not been properly repaired. A loud noise was created when the Applicant dashed against the table. Patrick Young made a contemporaneous note of the incident:-
The loud noise reflects that a great force was exerted. When the speed of the Applicant’s pushing away the desk was so great/fast the items on the desk would fall on the Applicant’s body, and would not move in the same direction of the fall. The A4 paper box 9.Eva Chan admitted that the Respondent’s staff always needed to work with A-4 paper at the Respondent’s office. Boxes containing A4 paper would be placed at the reception area next to the photocopying machine. She admitted that there was one paper box placed in the reception area between the sofa and the fax machine at the material time. This box was close to the location pointed out by the Applicant over which he tripped. So her evidence supports the applicant’s evidence the he tripped over a paper box. 10.In their witness statements, Patrick Young and Eva Chan said that they did not notice any obstacles on the floor. But they did not witness how the Applicant had fallen. So there is no evidence from the Respondent to rebut the Applicant’s evidence on how he had tripped on the A4 paper box. The cutter 11.Submitting that the cutter only came into existence when Begum Waheda and Ishtiaq Hussain gave evidence, the Defence Counsel disputes its existence. Eva Chan agreed that there were stationeries loosely placed on the surface of the table. There were at least 2 paper cutters placed on the reception table for people’s use. Therefore the submission of the Counsel cannot stand. 12.The Defence Counsel further claims that the Applicant stated that the blades of the cutter was 2.5 inches long, but when he was asked to draw the length of the blade, it was less than an inch. The Applicant’s estimation of the blade was inaccurate, but it does not discredit his evidence of the existence of the blade. Injuries 13.The Applicant sustained a 5cm superficial laceration over his right thigh, found upon physical examination at the A&E Department of the Eastern Hospital. There was also a scar on his right thigh at the time of trial. According to the declaration of Ishtiaq Hussan given to the Labour Department on 24.4.2007, he saw blood on the Applicant’s right wrist when he brought the Applicant to his room immediately after the accident. So the injury on the Applicant’s right wrist cannot be a recent fabrication. 14.The Applicant said that during the fall, he used both hands to protect his head by crossing his hands in front of his face. When Begum Waheda came to assist him, he felt numbness and a tingling sensation at his wrist. He saw 1 to 2 inches of blood trembling down towards his palm. The blood clotted and there was a cutter nearby on the floor. According to Begum Waheda, she saw blood over the Applicant’s right wrist as he was helped to stand up. Ishtiaq Hussain said he saw blood on the Applicant’s right wrist immediately after the accident. He stated the same in his statement to the Labour Department. Lam Wai Nga, the clinic executive and orthotist of Dr. Johnson Lam, testified that the Applicant had told her on 6.3.2006 at Dr. Lau’s clinic that he had injured his right wrist at work in his office on 1.3.2006. The Defence Counsel accepts that she is an honest witness. So there is no doubt that the injury of the applicant’s right wrist is not a recent fabrication. 15.The Applicant was examined at the orthopaedic ward of the Eastern Hospital within 1 hour of admission to the hospital. At the orthopaedic ward the 5 mm wound on the volar side of his right wrist was discovered. The Defence Counsel emphasizes that there was no record of the Applicant’s right wrist injury at the A&E ward in the Eastern Hospital when he was first admitted. But the report of the treating doctor of the Eastern Hospital dated 23.10.2006 explained that when the Applicant attended the A&E ward, he complained of severe neck and back pain. Their attention was drawn to look for potentially fatal conditions in the resuscitation room and no special attention was paid to his right wrist during consultation. 16.The Defence Counsel relies on the comments made by Dr. Lau Hoi Kuen (“Dr. Lau”, the orthopaedic expert for the Respondent) to support his submission. Dr. Lau stated in his medical report that he disagreed with the explanation given for not examining the Applicant’s right wrist or forearm. In my judgment, it is not whether the explanation is reasonable or otherwise. The question is whether that really happened or not. Dr. Lau is not in a position to say that that is not the reason for not examining the Applicant’s wrist or arm. The most important thing is that it is not within the realm of medical expertise of Dr. Lau. It is a finding of fact to be reached by this Court. The doctors of the A&E ward have no interest in the outcome of this case. There is no question about their integrity. I find that they acted as they explained. 17.The Defence Counsel submits that the relevant extract of the CCTV showing the right palm of the Applicant shows no blood stain on his palm. There is no evidence that the Applicant had wiped the blood from his palm. He was not paying particular attention to his wrist. There was no sign of his attending to such wound. The Applicant was wearing a long sleeve jacket that morning. He was raising his hand at that time. Any blood stain, freshly formed, could have easily been wiped out by the cuff of the jacket by that action because the cuff was in close contact with the wrist. It is unreliable just to focus on one shot of the video to rule that because there was no blood stain on his palm, then at that time there was no cut on his wrist. It is also not reliable to say that because he was not paying particular attention to his wrist, then there is no wound on it. Why is it that he was not paying particular attention to his wrist? It depends on what he was thinking at that time. It is common sense that even if he had the wound it had been there for some time. There is no need for him to pay particular attention to it all the time. 18.The Defence Counsel submits that, according to the report of Dr. Lau, with the severe pain in his right wrist and sensory deficit of his right hand, it was most unreasonable for the Applicant not to have brought the injury to the attention of the doctor at the A&E Department. This is outside the realm of the expertise of Dr. Lau. It is a finding of fact to be made by this Court. 19.According to the nursing staff note entered at 13.40 hours, the Applicant was observed to have “circulation and sensation over four limbs intact”. Dr. Lau said that this should indicate that the nursing staff did pay attention to the Applicant’s four limbs, including the right wrist. If there was a laceration over his right wrist, it was impossible for the staff to have missed it. The wrist wound was only 5 mm in width. Whether the nursing staff missed it or not depends on whether they paid minute and careful attention to the four limbs. Again this is outside the realm of the expertise of Dr. Lau. 20.The Defence Counsel submits that it was only after the Applicant had been admitted for some time and had been examined by another doctor when he started to complain of numbness of the palm and the 5 mm laceration over his right wrist. It is difficult to understand his delayed complaint to the attending doctor or nurse after his admission into the ward. Dr. Lau made this comment on the basis that the Applicant did not make any complaint when he was in the A&E ward. This is outside the realm of his expertise. 21.When the Applicant was examined again in the evening of 1.3.2006, the recorded findings include “motor including hypothenar muscle, cannot be tested because the patient feel pain during movement”. Dr. Lau opines that it is most unusual for such a small wound to be associated with such severe degree of pain that prevents the doctor from testing the active movement of the muscles in the hand (not the movement of the wrist). It becomes even more difficult to explain the Applicant’s ability to stand the pain associated with the 5 cm laceration over his right thigh, allowing him to cope with the examination of the motor function of his right lower limb. The said recorded findings were put down by the doctors who carried out the examination. Unless this finding is shown to be factually wrong, otherwise any comment on it is not evidence to contradict the recorded findings. 22.The Defence Counsel submits that the overall evidence indicates that the Applicant suffered no wrist injury at the time when the left the Respondent’s office. I do not accept this submission. 23.Dr. Joshua Ko of the Orthopaedic Department recorded that the Applicant’s right wrist was injured by a piece of broken glass. There is no basis for him to make such a record. He was not called as a witness to testify. So it is unknown how he came to write down the term “broken glass”. Hence this piece of record cannot assist the Respondent in its submission. 24.The Defence Counsel submits that the Applicant alleges in cross-examination that he told the doctors that his wrist was injured by a sharp object. If he was injured by a cutter, why did he not directly tell them that he was injured by a cutter? The Applicant did not see that his wrist had actually been cut by a cutter. There is nothing wrong for him to say that he was injured by a sharp object. In fact that is what he should have said. 25.Prior to the accident, the Applicant was on good terms with the Respondent and made a good income. He received a payment of $150,000 on or about 3 February 2006, less than 1 month before the accident. There is absolutely no reason for him to harm himself in order to get compensation. 26.It is simply impossible to inflict the wounds on his body when he was in the hospital when he was closely watched by medical people, and it was difficult to get the instrument to inflict the wounds. If he had intended to inflict the wounds, he must have done so before he was admitted into the hospital. If the Applicant had inflicted the wounds on his body, no doubt he would not have made such a minor wound on his wrist, because the smaller the wound, the less noticeable it is. If he had intended to inflict the wound, then after he had inflicted the wound, he would no doubt have ensured that the medical doctors or nurses would notice the wound. In such a case he must have made a complaint to the medical people as soon as possible, namely, at the time when he was as admitted into the A&E ward, and not at any later stage. It is simply unimaginable that he would mention about it one hour later. There is no medical record that he made such a complaint upon his admission into the A & E Department. So it is clear that he did not have any intention to inflict the injury on his right wrist. 27.The Defence Counsel claims that the Applicant gave an indirect answer to the Labour Department officer when asked what caused his cut/stab wound on his right wrist and right thigh. The question put by the officer involved a lengthy description of 2 documents and at least 3 questions. The answer cannot cast any adverse implication on the Applicant’s evidence. 28.The Defence Counsel submits that the Applicant did not suffer injuries to the thigh. At certain extracts of the CCTV it can be seen that the Applicant showed no sign of any discomfort at the thigh. He was walking normally on the ground floor level. He was not looking at nor attending to the wound. If a person had in fact suffered a 5 cm cut to his thigh at that time, one would expect to see him at least paying attention to the thigh or be attending to the blood then coming out from the wound. The relevant extracts of the CCTV only lasted for a very short time. They did not last long enough for this Court to make any meaningful finding. Further the images shown at these extracts are blurred. I do not agree that when a person (who had a 5 cm cut to his thigh) was walking one would expect him to look at or attend to the wound. One would expect him to look at this wound and attend to it when he first discovered it, but not necessarily at a later stage, particularly when he was walking. If he attended to his wound, then of course he would not be walking. So when he was walking it is only natural that he would not pay attention to his thigh or attending to the wound. 29.No doubt the Respondent had a lot of suspicions about the cause of the Applicant’s injuries. But these suspicions can be explained away. There is simply no evidence to support its allegation that the Applicant self-inflicted the injuries on his body. I dismiss all the suspicions and find that the Applicant did suffer the above-mentioned injuries in the course of his employment with the Respondent. Award under section 9 of the Ordinance 30.The Applicant was 31 years old and a litigation manager of the Respondent at the time of the accident. He had a basic salary of $20,000 per month. He said that there was an oral agreement with the Respondent that 30% commission would be given to him for cases introduced and handled by him. He was given $150,000 on or about 3 February 2006. The Respondent asserts that this sum of $150,000 was a discretionary Chinese New Year bonus, and not a contractual commission. Eva Chan admitted that when she wrote the cheque of $150,000 she only did so according to the instruction of Mr. Pickavant, the sole proprietor of the Respondent. She did not know the nature of the sum $150,000 and how it was calculated. Mr. Pickavant did not testify in court; so the Applicant’s evidence that it was a commission was not challenged. The Defence Counsel submits that it was clearly casual and of non-recurrent nature according to the documents. But that has not taken into account the oral evidence of the Applicant which was not contradicted by any oral evidence of the Respondent. I accept the Applicant’s evidence in this regard. The average monthly earning of the Applicant is $32,500 per month ($20,000 + $150,000 ÷ 12). 31.Prior to the accident the Applicant was in the position of litigation manager. This is confirmed in his employment contract (dated 1.4.2005) with the Respondent. Before that he had worked as an interpreter/clerk. Prior to the accident the Applicant’s main duties included marketing, sourcing new clients, taking instructions from clients, preparing claim papers and assisted in preparing cases. He had to open files, take photographs, visit scenes of accident, write down instructions and carry equipment. He had to use his right hand to discharge such duties. Dr. Chiang took the view that the Applicant should be able to return to his pre-accident employment, but with some inconvenience or reduction in efficiency. It will be slow for him to use his right hand to write. Dr. Lau opines that he will be unable to return to his pre-accident employment. His right hand was severely impaired. He will have great problems to use his right hand to write, operate a keyboard or handle files. Dr. Lau suggests that he should work as an interpreter. 32.The review of assessment by the medical board on 29.11.2007 assessed the Applicant to be suffering from 20% permanent loss of earning capacity. I watched the Applicant’s right hand in the course of the whole trial. Clearly he would have great problem to use his right hand to discharge his pre-accident duties. I agree with Dr. Lau’s opinion that he will not be able to cope with the demands of his pre-accident duties. Hence he cannot return to his pre-accident employment. I therefore grant the appeal against the assessment made by the medical board. 33.After the termination of his sick leave from November 2007 to July 2008, the Applicant started working for the Firm Limited as general manager handling employees’ dispute matters. His income was $5,000. Since 4 November 2008, he has been working as an interpreter for Messrs. K.B. Chau & Co., with a monthly salary of $3,000. 34.A Graduate Employment Survey of 2007 produced by the University of Hong Kong which shows that the medium income of an interpreter is $11,000 per month. This figure should be adopted as the Applicant’s earning capacity in the assessment. Award under S. 9 (1A) of the Ordinance 35.The award payable under section 9 (1A) of the Ordinance is $1,333,661.5 [($32,500 - $11,000) ÷ $32,500 x $21,000 x 96]. Award under S. 10 of the Ordinance 36.At the review of assessment dated 29.11.2007, the Medical Assessment Board granted the Applicant a period of absence from 1.3.2006 to 27.7.2007 (16 27/31 months) and from 14.9.2007 to 15.11.2007 (2 2/30 months), as being necessary as a result of the injury. Compensation for temporary incapacity under section 10 of the Ordinance is $492,180 [$32,500 x 4/5 x (16 27/31 + 2 2/30)]). Award under Section 10A of the Ordinance 37.The Applicant claims a sum of $1,000 for medical expenses. He produced no receipts to support this claim as required by section 10A (6) of the Ordinance. I therefore disallow this claim. 38.The total award payable to the Applicant is $1,825,841.5 ($1,333,661.50 + $492,180). 39.I order that the Respondent do pay, within 14 days from today, the sum of $1,825,841.5 with interest thereon at ½ judgment rate, from 1.3.2006 to 11.5.2009 and at judgment rate, from 12.5.2009 until satisfaction. Costs 40.I make an order nisi, to be made absolute in 14 days’ time, that the Respondent do pay costs of this action to the Applicant, to be taxed if not agreed, with certificate for Counsel. The Applicant’s own costs be taxed according to Legal Aid Regulations.
The Applicant : represented by Mr. Erik Shum instructed by Messrs. K.B. Chau & Co., for the Applicant. The 1st Respondent : represented by Mr. C.K. Wong instructed by Messrs. Hastings & Co., Solicitors. |
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