Lau Oi Hing v. Sze Cheung Fung and Others

DCEC1137/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1137 OF 2008

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Coram : His Honour Judge Chow

Dates of Hearing : 2^nd & 4^th February, 2010

Date of Handing Down Judgment : 24^th March, 2010

Judgment

1.This is the Applicant’s claim for compensation pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”).  Both parties have filed notices of appeal against the Review of Assessment made by the Employees’ Compensation (Ordinary Assessment) Board on 26.3.2009.

The Applicant’s case

2.The Applicant was employed by the 1^st Respondent as a labourer to work in a construction site at Imperial Garden, No. 3 Duke Street, Kowloon (“the Building”).  At the material time, the 1^st Respondent was a sub-contractor of the 2^nd Respondent; the 2^nd Respondent was a sub-contractor of the 3^rd Respondent, and the 3^rd Respondent was a sub-contractor of the 4^th Respondent.  The 4^th Respondent was the principal contractor within the meaning of the Ordinance.

3.At about 8:00 a.m. on 7.7.2007, the Applicant went to the Ground floor of the Building.  The 1^st Respondent instructed her to remove and clear up concrete and debris hacked on previous days from the external wall of the Building and discharged onto a dumping area near the entrance on the Building via a refuse chute.  The refuse chute was about 1.6 metres above the ground.  She started to work by removing the debris from the outset of the dumping area.  Then she gradually moved towards the inner part of the dumping area. She collected and removed the concrete debris by means of a wheelbarrow.  The collected debris was dumped onto a refuse receptacle outside the Building.  The dumping area was initially full of concrete debris.  After working for more than 2 hours, she had cleared a lot of concrete debris.  She was working under the outlet of the refuse chute just before the Accident.  At about 11:00 a.m., when she was so working, something fell down and struck the back of her neck (“the Accident”).  She felt painful at the back of her neck, as well as pain and numbness at her shoulder.  After being hit she immediately turned around her body and discovered several pieces of concrete debris roughly of the same size.  Just before the Accident, she had already cleared all debris at the area behind her.

4.Immediately after the Accident had happened, the Applicant shouted to the Respondent, who was at the car park on the ground floor of the Building.  She told him that she felt pain due to the falling concrete debris.  She took a rest and a woman cleaning worker applied to the back of her neck and shoulders with herbal ointment.  After about 1 hour, the pain at her neck persisted and she asked the 1^st Respondent for earlier leave in order to see doctor.  At about lunch hour she went home.  In the afternoon she went to the Accident and Emergency Department (“AED”) of the Princess Margaret Hospital for treatment.  On 10.7.2007, she was admitted as an in-patient to the Department of Orthopaedics & Traumatology of Yan Chai Hospital.  She was discharged on 11.7.2007.  Thereafter she attended follow-up treatments.

The evidence of the 1^st Respondent

5.He testified that he was shoveling concrete debris, about 5 metres away from the Applicant.  He did not hear any sound indicating that debris had fallen down from the refuse chute.  He heard a cry from the Applicant.  When he turned round, she immediately told him that she might have been hit by concrete at the back of her neck.  He checked her neck, but he did not see any swelling or wound.  Then he went up to the 7^th/8^th floor to check whether anyone was using the refuse chute.  But he did not see any worker there.

Analysis of evidence

6.At paragraphs 5 and 6 of his witness statement, the 1^st Respondent stated that she told him that she had been hit by something at the back of her neck.  He then checked the back of her neck, but did not see any swelling or wound.  He enquired her about her conditions.  She said that she was alright and continued to work until noon in the same day.  He observed that she appeared to be normal during that time.  After lunch, she suddenly told him that she still felt pain on the back of her neck.  She refused his company to the hospital and went to seek medical treatment on her own.

7.In his declaration, he said that he did not find any blood stains at her neck.  He asked her to take a rest, and if she felt uncomfortable, she should go to see the doctor immediately.  After a while, she told him that she still felt pain in her neck, and thereafter she went on to the AED alone.

8.In court, he said that he had spent 30 minutes patrolling upstairs and therefore he did not really know if she continued to work or not.  There is a clear conflict in his evidence.  If he had spent 30 minutes to patrol the Site after the Accident, he could not have witnessed that she continued to work.  These two pieces of evidence cannot be reconciled.  This means that his evidence regarding this respect of the Accident cannot be truthful.

9.It is the Applicant’s evidence that there was a female co-worker who applied ointment to her neck.  There is no suggestion from the Respondents that that did not happen.  There must be some wound on the back of her back, otherwise the female worker would not have applied ointment on the back of her neck.  Further at the column of “condition on arrival” on the medical report dated 7.7.2007 of AED of Princess Margaret Hospital, it was recorded “redness, pain” and there was “tender +” when she was seen by doctor.  Clearly there was redness on the back of her neck.  This refutes the 1^st Respondent’s evidence that when he checked the back of the Applicant’s neck there was no wound.

10.On the same medical report there is a record made by the doctor that “upper back hit by bamboo stick on 30/6/2007; pain +, resume duty today, seen bone setter”.  The record gives the impression that she resumed duty on 7.7.2007 after her upper back had been hit by bamboo stick on 30.6.2007.  But the clause “resume duty today” is not correct because she had been working since 30.6.2007. 

11.The concern is whether the redness was caused on 30.6.2007, or on 7.7.2007.  The doctor did not testify.  There is no full picture of the conversation between her and the doctor.  On the other hand, on 9.7.2007, she attended the AED of Yan Chai Hospital.  The medical record shows that the cause of the accident was the falling object on 7.7.2007.

12.Dr. Hung Siu Lun Tony opined that the injury was compatible with the circumstances of the accident described by her.  It was not pre-existing.  He gave 4 reasons to support this conclusion.  I attach weight to the first reason because it is an opinion based on medical evidence: -

“ a. Examination in AED PMH on 7 July 2007 showed redness and tenderness over the neck region. These corresponded to the site of injury due to the contusion by concrete debris.  Redness of the skin over the neck region on 7 July 2007 meant insult to the skin and subcutaneous tissue.  If it was due to trauma, it should have happened recently rather than the week before on 30 June 2007.”

13.On the other hand, Dr. Chun Siu Yeung (“Dr. Chun”) had reservation and was skeptical towards her account of the accident.  His said that if the concrete fell from 15 floors the hit should be very significant.  But there is no clear evidence that the concrete debris had fallen from 15 floors.

14.Had the Applicant intended to fabricate a story on 7.7.2007, she would have maintained the same story giving rise to the injury, and would not have told a different story at different places.  Further she would not have waited for at least 2 hours after she had commenced working on 7.7.2007 before she uttered a cry.  I accept her evidence that she was injured on 7.7.2007. 

Quantum of awards

15.She commenced her employment with the 1^st Respondent on 29.5.2007.  Her monthly earnings for May and June 2007 are respectively $500 and $11,750.  The Applicant’s Counsel submits that the Applicant received daily wages of HK$500 per day.  She understood that she would usually work 26 days per month.  In May 2007 and June 2007, she did not work in some for the working days because of personal reasons or bad weather.  She submits that her monthly salary should be $13,000. 

16.The method of calculating wages is provided in section 11 of the Ordinance.  Section 11 (1)(a) provides that the monthly earnings of an employer at the time of the accident shall be the earnings for the month immediately preceding the date of the accident.  Section 11 (1)(a) applies in this case.  Hence her monthly salary for the purpose of calculating compensation under the Ordinance is $11,750.

Compensation under section 9 of the Ordinance

17.At the time of the Accident she was 48.  A lump sum amounting to 72 months’ of her earnings is to be adopted.  On 23.10.2008, the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed her loss of earning capacity at 2.5%.  On 12.3.2009 the Board reviewed her loss of earning capacity to be 3%.  The Applicant and the Respondents appeal against this assessment.  But in her submission, the Applicant’s Counsel agreed that 3% is the appropriate figure to be adopted for assessment under section 9.  Dr. Chun assessed her loss of earning capacity to be less than 0.5%.  The joint medical report states:-

“80.            Dr. Chun assesses at most 0.5% whole person impairment for the aggravating effect by the injury of 7/7/2007 if indeed occurred.  Similarly the loss of earning capacity for the parties’ reference should not be more than 0.5% if indeed injury had occurred on 7/7/2007.”

Dr. Chun did not believe that the Accident on 7.7.2007 had occurred.  If the Accident had not happened she would not have sustained any injury.  It follows that she would not suffer a loss of earning capacity which could only be caused by her sustaining an injury.  He had suspicion on her.  It is likely that his assessment of her loss of earning capacity was affected by such suspicion, making it unreliable.  Hence no weight should be attached to his assessment.  I dismiss the appeals lodged by both parties.  I adopt the assessment made by the Board.

18.The amount of compensation to be awarded to her under section 9 of the Ordinance is $25,380 ($11,750 x 72 x 3%).

Compensation under section 10

19.She was granted sick leave from 7.7.2007 to 6.10.2008, a total of 15 months.  Hence the compensation is $141,000 ($11,750 x 4 ÷ 5 x 15).

Compensation under section 10A

20.The Applicant claims a total of $3,575 under this head.  This claim is supported by documentary evidence.  The Respondents has raised no dispute over this amount.  Hence I award $3,575 to the Applicant.

21.The total compensation awarded payable to the Applicant is $169,955 ($25,380 + $141,000 + $3,575).  A total sum of $112,000 has been paid to the Applicant by the Respondents.  So the Applicant is entitled to receive $57,955 ($169,955 - $112,000).

22.I order that the 1^st to 4^th Respondents do pay to the Applicant within 14 days from today, the sum of $57,955, with interests thereon: commencing from 7.7.2007 to 23.3.2010 the interest is to be calculated at 50% judgment rate, and commencing from 24.3.2010 until satisfaction, the interest is to be calculated at judgment rate.

Costs

23.I make an order nisi for costs, to be made absolute within 14 days’ time, that the 1^st to 4^th Respondents do pay costs of these proceedings to the Applicant, to be taxed, if not agreed, with certificate for Counsel.

The Applicant : represented by Miss Jolie Chao, instructed by Messrs. Yip, Tse & Tang, Solicitors.

The 1^st to 4^th Respondents :   represented by Mr. Szeto Park Patrick, instructed by Messrs. Gallant Y.T. Ho & Co., Solicitors.