Singh Chamkaur v. Richard Ethan Latker t/a Sino-indian Enterprises

LA/ECC/16502/2006
(DD21)

DCEC 796/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 796 OF 2007

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IN THE MATTER OF AN APPLICATION BETWEEN:-

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Coram  :  H.H. Judge Chow

Hearing dates :  4– 7, 31 August, 2009

Date of handing down Judgment:   12 November, 2009

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Judgment

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1.This is the Applicant’s action for compensations under sections 9, 10 and 10A of the Employee Compensation Ordinance (“the Ordinance”), in respect of injuries he claimed to have sustained on 15 June 2006 in the course of his employment with the Respondent.

2.The dispute in this case is whether or not the alleged accident did occur at all.

The evidence of the Applicant

3.The Applicant was born in India in 1940.  He did not receive any education, and is illiterate.  He was employed by the Respondent as a casual worker on 17 October 2005.  At about 4:15 p.m. on 15 June 2006, he was working at the Respondent’s property at No. 1, Pak Fa Lam Road, Sai Kung, New Territories (“the Site”).  His duty was to carry bricks from the brick storage area to a platform next to the wall.  The platform was about 6 feet high and was made up of 2 “A” shaped wooden ladders with a wooden board between them for standing on.  The ladders were about 2 feet wide at the bottom and 1 foot wide at the top.  At that time there was no colleague on the platform for him to pass the bricks to.  So he had to place the bricks on the platform by himself.

4.Mr. Shah Rozan Ali (“Ali”), a Chinese welder, a Chinese plasterer and an Indian mason were also working at the Site.  The mason told him that he was not going to lay bricks for the time being because of the wet weather, and told him to put the bricks onto the platform.  He was working there alone; there were no other colleague to assist him to place the bricks into the platform.  He loaded a trolley with bricks and cement, and carried it to the bottom of the platform.  Each time he picked up 3 or 4 pieces of bricks from the trolley and lifted them up to the platform.  After he had put about 20 pieces of bricks onto the platform, suddenly a column of 4 or 5 bricks on the platform fell down and hit his left foot.  He shouted for help.  Ali and the mason came up to him.  Then Ali drove him out onto Pak Fa Lam Road (“the Road”) with the Respondent’s car.  After that they took a taxi to Choi Hung where they took a bus to go to the Kwong Wah Hospital (“the Hospital”).  Ali helped him to do the translation in the Hospital.

On 23 July, 2006 at his place at Sai Kung, the Respondent gave him a cheque in the sum of $4,150 and a note.  But the Respondent did not explain to him the content of the note.  He just told him to sign on it, and he signed on it as he was illiterate.  He did not admit to the Respondent that he had ridden his motorcycle, broken it and injured his foot.  He did not agree to his deduction of his salary. 

5.The Applicant called his wife (Kaur Paramjit) to testify for him.  It is her evidence that 15 June, 2006 in the Hospital, the Applicant told her that his he was hit by a falling brick whilst at work, and subsequently she related the same to a doctor of the A & E Department of the Hospital.

The Respondent’s case

6.The Respondent’s case is that the Applicant sustained injuries to his left foot when he was riding the Respondent’s scooter.  He called 3 witnesses to testify.

The evidence of Cheung Yui Hang (“Cheung”)

7.Cheung was a workman at the site on the day of the accident when the Applicant injured his foot.  On that day no one was in charge of the site as the Respondent was then in France.  In his witness statement he described the accident as follows:-

‘……..On a date which I cannot recall now, Singh approached me during lunch time whilst I was still sitting on the motorcycle.  He asked me in simple Cantonese to lend him the motorcycle as he wanted to ride on it.  I declined at once.  But then he relentlessly asked me again and again to let him ride on the motorcycle, and kept saying “OK OK” to me.  Half of his body was already leaning towards mine, and he kept asking me to get off the seat and let him ride.  At that time I did not know what to do, so I asked him if he really knew how to ride the motorcycle and if he had a driver’s licence.  Again he replied by saying “OK OK”, at the same time half of his body was already moved towards mine and he was literally sharing half of my seat on the motorcycle.  I had no choice but to get off the motorcycle and let him get on it.  He immediately drove it uphill at speed and within moments, I heard a “bang” sound and I ran uphill and saw both Singh and the motorcycle on the ground.  I asked Singh if he was alright, he told me his left foot got injured by the fallen motorcycle.  Then he started limping downhill and sat by the said of the road.  Prasad, Ali and Uncle Liang were already there as that was usually the area we took a rest during lunch time and they asked what had happened.  I told Ali about Singh’s foot injury due to the fallen motorcycle.  Uncle Liang then drove Singh, who was accompanied by Ali, away and they left the Site.  Since then, I had not seen Singh at the Site.’

(Underlines provided)

8.After the accident, Ali returned to the Site to work.  He asked Cheung 3 times to do a favour for the Applicant.  The Applicant asked him (Ali) to persuade him (Cheung) to deceive the Respondent by fabricating the accident as an occupational accident.  They wanted him to tell the Respondent that the Applicant had injured his foot whilst working at the Site.  He refused to do so.

The evidence of Raghu Nath Prasad (“Prasad”)

9.Prasad was employed by the Respondent at the Site since 2003.  He was responsible for sculpting and moulding.  On 15 June 2006, he and the Applicant were working together on cement designs.  The Applicant was mixing the cement, and the Applicant would pass to him the mixed cement, and he would then sculpt and mould the cement designs.  That was the only type of work done by the Applicant on that day.

10.At about 3:30 p.m. the Applicant asked Cheung if he could borrow the Respondent’s motorcycle.  He then saw the Applicant accelerating quickly and leave the Site, and ride up the slope of “the Road” for about 200 metres.  He seemed to lose control and crashed the motorcycle.  Then he limped back down the Road and sat on the slope just outside the Site.  He asked the Applicant why he was limping.  The Applicant replied that he had injured his foot on the motorcycle.

The evidence of the Respondent

11.On 14 June 2006, he left Hong Kong for France.  On 23 June 2006, he telephoned Ah Li from France.  Then Ah Li told him that:-

“A.    the Applicant ( a casual labourer) had taken the keys to my motorcycle from Mr. Cheung on 15 June 2006.  He rode the bike during the workday purely for enjoyment;

B.      The Applicant crashed the motorcycle on Pak Fa Lam Road on 15 June 2006, injuring his foot and damaging the motorcycle;

C.      Ah Ali had told my wife the same information by telephone on 22 June 2006;”

(Underlines added)

12.On either 23 or 24 July 2006, all the workers (except Cheung) came to his temporary residence at the Site.  The Applicant admitted to him at that time that he had taken the motorcycle for no legitimate purpose, wrecked it, and injured his foot.  He apologized for the affair.  He deducted one day’s pay from his wages to compensate in part for the damage to his motorcycle.  The Applicant understood this entirely.  He did not object and signed a receipt for payment, which detailed a deduction for damage to the motorcycle. 

13.About one week later, the Applicant telephoned him, claiming that he had injured his foot with a “falling brick” on the Site.  This was the first time he heard this story, and he did not believe it.  He asked about the motorcycle accident, and the Applicant replied that it happened “later”.

Analysis of the case

The medical report

14.In the medical report of the Hospital (dated 15 June 2006 at 17:37 hour) on the injuries of the Applicant it is stated “L foot crushed by a fallen machinery”.  On this report there are 4 boxes:-

The box next to “Industrial injury” was ticked.  In the report there is a column under the heading “Chief Complaint”.  Against this heading there were hand-written words: “Job injury” “Crush”.  It is clear that if the Applicant had told the medical staff of the Accident and Emergency Department of the Hospital that the injuries he sustained were caused by a falling motorcycle on which he rode, the box next to “Traffic Accident” should have been ticked, and against the column of “Chief Complaint” it would not have been written as “Job injury”.  Job injury indicates that the injury was caused when the injured person was doing his job.  “Job injury” and “industrial injury” reflect that the injury was sustained not due to a traffic accident, but due to something which happened when a job was being done.  Thus what he said in the A & E Department of the Hospital on 15 June 2006 at 17:37 hours is consistent with his evidence in Court.

15.There was a note made by the Hospital on a medical record on 20 June 2006 as follows: -

“L foot contusion by a fallen brick”. 

Obviously this is a correction of the term “fallen machinery”.

16.The Applicant sustained tenderness and swelling over his first and second metatarsal bones of his left foot.  X-ray examination showed fracture of his left second metatarsal bones and medical cuneiform bone.  The injuries are confined to a small area of the foot and so are consistent with the injuries caused by falling bricks.  If the Applicant had fallen onto the ground, when the motorcycle fell on its left side, the left side of his body should have sustained some injuries, when the left side of his body came into contact with the surface of the ground.  At this moment the motorcycle was still moving ahead and so this part of the body would grind with the surface of the ground.  The injuries caused by such grinding would cover a wider area than the injuries just caused to 2 toes of the left foot.  But there is no injury on the left side body of the Applicant.  If the case of the Respondent is true, why is it that the left side body of the Applicant sustained no injury?

17.The Applicant’s wife, Kaur Puramjit, went to the Hospital upon receiving the Applicant’s call.  She did the interpretation for the Applicant in the Hospital because he was not able to speak Punti.  The Applicant told her that he was hit by a falling brick.  In return, she told the doctor what the Applicant had told her.  Her evidence is consistent with the Applicant’s evidence.

18.Cheung gave a witness statement on 20 February 2009.  He could not remember when the accident happened.  When testifying he said that the accident took place between noon and 1 p.m.  At that time, he was trying to park the scooter, but the Applicant squeezed his body into the scooter.  He was under explicit instructions from the Respondent not to allow to use the scooter.  He could simply have told the Applicant that the Respondent would not allow anybody to use the scooter.  But he did not do so.  Instead he just retracted from the seat of the scooter when the Applicant pushed his body in.  He asked the Applicant whether he knew how to drive the scooter.  But in his witness statement he said that he asked the Applicant whether he had a driving licence.  He said that after the Applicant had taken control of the scooter, he stepped on the accelerator and went up the hill. The most important thing is that there is no allegation that Cheung passed, at any time, the keys of the scooter to the Applicant.  But according to the evidence of the Respondent he was told by Ah Li that the Applicant had taken the keys to the Respondent’s motorcycle from Cheung on 15 June 2006.  If that is true, it means that the Applicant took the keys to the scooter from Cheung, and started off the vehicle.  If Cheung passed the keys to him, it implied that he agreed to the Applicant to drive the scooter.  Then there could not be any squeezing of the Applicant’s body into the seat of the scooter.  The whole scenario will be materially different from what Cheung described in court, and from what he described in his witness statement. These two versions of how the Applicant took control of the motorcycle are incompatible with one another.

19.In court Cheung said that neither the scooter nor the scooter had fallen directly on the ground.  The scooter was pressing at the Applicant’s feet at an angle.  It was stuck in a gully.  The Applicant was not able to move and his left foot was injured. But in his witness statement Cheung said that he saw “both Singh and the motorcycle on the ground”.  There was no mention of the scooter being stuck in a gully or being inclined on the slope in his witness statement.  Also he did not ask the Applicant if he had a driving licence or not.  This contradicts what he said in his witness statement.  So his evidence in court is different from what he said in his witness statement. 

20.After the accident, Cheung said that he pushed the scooter back down the slope whilst the Applicant limped on his left leg back to the Site.  According to Prasad, the accident took place at about 3:30 p.m. to 4 p.m.  This is materially different from Cheung’s evidence.  Prasad said that the scooter was lying down on the ground.  According to him, Cheung helped the Applicant back to the site without carrying anything in his hands.  This is materially different from Cheung’s evidence.

21.Prasad was able to point out the exact location when the accident took place.  This is inconsistent with that of Cheung, who said that from where Prasad and all the others were standing, they would not be able to see what happened.

22.The evidence given by the Applicant is credible.  The version he gave in the Hospital shortly after the accident must be truthful.  He was in pain and it is highly unlikely that he would think of telling a lie  to the doctor at that time.  I accept his evidence.  The evidence given by the Respondent’s witnesses contain a lot of material discrepancies.  Their evidence gives rise to two inconsistent versions of how the Applicant got control of the Respondent’s motorcycle.  The evidence given by the Respondent’s Witnesses is not credible.  I attach no weight to it.  I find that the Applicant was injured during the course of his work.

23.I therefore adjudge that the Applicant is entitled to compensation in the sums of $4,200, $38,920 and $2,580 under sections 9, 10 and 10A of the Ordinance respectively as agreed between the parties.  I order that the Defendant do pay the Plaintiff within 14 days from today the sum of $45,700 ($4,200 + $38,920 + $2580) with interests: commencing from 15 June, 2006 to 11 June, 2009 the interest is at 50% judgment rate, and interest rate at judgment rate from 12 June, 2009 until satisfaction.

Costs

24.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 in accordance with Legal Aid Regulations.

The Applicant :     represented by Mr. Kamlesh Sadhwani, instructed by M/S Jal N. Karbhari & Co., Solicitors.

The Respondent:  represented by Mr. Eric Curlewis of Messrs. Durdons, Solicitors.

Appeal by the applicant dismissed by Court of Appeal. Please refer to CACV270/2009 dated 16 November 2010