Brar Lakhvir Singh v. Hon Man Environmental Trading Co Ltd

DCEC 592 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION NO. 592 OF 2009

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BETWEEN

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Coram: Deputy District Judge Clement Lee in Court

Dates of Trial: 14^th and 15^thJune2010

Date of Handing Down Judgment: 25^th June2010

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JUDGMENT

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A.    INTRODUCTION

1.This is the trial of the application of Mr. Brar Lakhvir Singh for compensation under sections 9, 10 and 10A of the Employees Compensation Ordinance (Cap 282) regarding an alleged accident that took place on 13^th September 2008 during which he suffered injury while at work. He also appeals against the Employees’ Compensation (Ordinary Assessment) Board’s assessment made on 25^th November 2009. The Board assessed him 0.5% permanent loss of earning capacity.

2.The Respondent took issue of whether the Applicant had an accident on 13^th September 2008 as alleged.   It also challenged the reasonableness of the quantity of the sick leaves in that 42 days’, instead of 247 days’, sick leaves are reasonable and proportional to the injury as alleged.

3.In short, the main issue for determination is whether the Applicant had an accident on 13^th September 2008.  The subsidiary issues are (i) whether 0.5 % of permanent loss of earning capacity should be revised to 2% as contended for by the Applicant; (ii) whether 247 days’ sick leaves should be recognised on the question of quantum. 

4.The Applicant testified.  The Respondent called 3 witnesses to testify.  They were Mr. Hui Man Kwong (“RW1”), Hui So Yan (“RW2”) and Hui Tak Chi (“RW3”).

B.    THE EVIDENCE

B-1         The Applicant’s evidence and the accident

5.The Applicant gives evidence at trial by confirming his witness statement. In summary, the relevant part of his evidence in support of the present application is as follows.

His background

(1)He was born in India and was aged 27 years old at the time the accident allegedly took place on 13^th September 2008.  He moved to Hong Kong in 2003 and obtained his Hong Kong Identity Card in January 2004.

(2)In or about 2005, he worked for the Respondent as a causal worker for a short period of 28 days.

(3)On 7^th September 2008, he approached the Respondent again with a view to look for a job.   RW2 agreed to employ him at a monthly salary of HK$9,000 in addition to HK$700 as the monthly food allowance. 

(4)He commenced working for the Respondent on 8^th September 2008.  His main duty was to operate the compressor machine  by filling in the collection chamber of the machine with plastic scrap, then using the compressor to press or squeeze the scrap in order to make a bulk. 

The accident

(5)On 13^th September 2008, at about 8:10 am, his boss asked him to operate the machine again.  At about 10:00 am, while he was using his right hand to push the plastic scrap into the collection chamber, a Chinese worker who was deaf and dumb touched the machine.  The material part in the Applicant’s witness statement that he confirmed is:

[Para. 15] “At about 10:00 am, I had filled the collection chamber with plastic scrap and I was using my right hand to push back the plastic scrap into the collection chamber. As I was doing so the other Chinese worker with disability came and without giving me any indication switched on the compressor machine and the compressing board started to move downwards. At that time I was using my right hand to push back the plastic materials into the collection chamber. The ON/OFF button was located on the right hand side of the machine.”

[Para. 16] “As I was pushing the plastic scrap back into the collection chamber my right hand was caught by some plastic material and I tried to release my right hand but was unable to. My right hand was crushed by the weight of the compressor board. I immediately pushed the OFF button switch which was located on the right hand side of the machine in order to stop the machine. When the machine stopped, I pulled my hand out.”

(6)He notified RW1 of the accident and RW1 told him to take some rest and he did rest for about 2 hours.  After that, he cleaned up the place and left at about 7:00 pm.  At home, he found that his right hand was swollen and his wife applied local herbal oil on his right hand and wrist.

Subsequent events and treatment

(7)On 14^th September 2008, he resumed duty as usual with a bandage around his right hand.  RW1, upon seeing that, told him that there was no more work for him.  He would call him again for work later.  He then approached RW2.  He told RW2 that he was injured the day before and RW1 said that there was no work for him.  RW2 said there was nothing that she could do.  Despite applying herbal oil, the pain over his right hand and  wrist was not eased and there was increase in swelling over his right hand and wrist.

(8)On 16^th September 2008, he went to the Queen Elizabeth Hospital (“QEH”), the Accident and Emergency Department (A & E”) for consultation.  Upon examination, there was tenderness over the right wrist.  X-rays were taken of the right arm and there was no bony fracture.  Sick leaves were given for 16^th to 19^th September 2008.

(9)His pain over the right hand persisted and he went back to QEH A & E for treatment.  Thereafter, he repeatedly attended QEH

A & E for treatment and was given sick leaves from time to time until 7^th November 2008.

(10)        On or about 10^th November 2008, he changed to Yau Ma Tei Jockey Club General Out-patient clinic for treatment and was given sick leaves from time to time until 21^st May 2009.

(11)        As at the date of his statement dated 11^th May 2009, he still had pain over his right hand and wrist and he could hardly lift up heavy object of above 5 kg in weigh. 

(12)        He spent $4,000 on medical expenses.

(13)        He relied on his expert Dr. Johnson Lam to support the contention of 2% permanent  loss of earning capacity.

6.There are some more material evidence elicited during cross examination and I shall come to that when I analyse the Parties’ evidence.

B-2    Respondent’s evidence

7.To support the principal defence of “no accident”, the Respondent called 3 witnesses. 

8.RW1 confirmed and adopted his witness statement. In summary, the relevant part of his evidence is as follows.

(1)On 13^th September 2008, until he has gone duty off, he did not notice that the Applicant had met with an accident that resulted in injury nor was he ever notified on that day that the Applicant was injured.

(2)After the Applicant has worked for 2 days, RW1 noticed that the Applicant was lazy.  On the morning of 14^th September 2008, he decided to sack him.  He told the Applicant that because of his poor performance, he was fired.  Thus, the Applicant left without any sign of injury nor he was bandaged.

(3)On 17^th September 2008, the Applicant left a sick leave certificate at the office without other message.

(4)In was not until about 2^nd October 2008 that the Applicant’s former solicitors sent a letter to the Respondent claiming periodical payment then he knew about the alleged injury.   

9.RW2 confirmed and adopted her witness statement. In summary, the relevant part of her evidence is as follows.

(1)On the morning of 14^th September 2008, she told the Applicant in English that because of his poor performance, he was not required to work anymore.  She told him that she would notify him to collect his wages after calculation.  The Applicant expressed his understanding and left the office without any sign of injury nor was he bandaged.

(2)The Applicant did not tell her that he had met with an accident that resulted in injury, whether on 13^th or 14^th September 2008.

10.RW3 confirmed and adopted his witness statement. In summary, the relevant part of his evidence is as follows.

(1)The operation of the compressor machine required one worker only.  The deaf and dumb Chinese worker left the employment after the alleged accident. 

(2)During the few days that the Applicant worked for the Respondent, the Applicant did not inform him of having injury while operating the compressor machine. 

C.   DISCUSSION

11.During cross examination, the Applicant was asked to describe in detail how to operate the compressor machine and how the accident occurred.   His version in the witness statement impressed me that the machine was automatic, that is once he pressed the “on” button, the compressor board would come down automatically.   That is why he said that the deaf and dumb Chinese worker pressed the “on” button without notifying him and the compressor board came down and crushed his right hand.   During cross examination, he admitted that after pressing the “on” button, one had to pull a handle or lever next to the button down before the compressor board would come down.  As depicted from the relevant photographs, both the button and the handle were close to him.  The effect of this material omission is that assuming the deaf and dumb Chinese worker pressed the “on” button, the compressor board would not come down automatically until one pulled the handle down.  The Applicant failed to explain how the compressor board would come down if he did not mention anybody had pulled the handle.

12.He was then asked as to how he suffered injury.  He said that the compressor board came down and trapped his right forearm for 1 to 2 minutes.  He repeatedly described the forearm he meant the forearm near the elbow towards the tip of the finger.  The whole right forearm was trapped inside the collection chamber for 1 to 2 minutes.  He felt pain on his forearm and right hand.   He took 2 hours rest subsequently.  In the same evening, he needed to take local medicine and local medicine ointment or oil to ease his pain.  On 14^th September 2008, his pain was not eased and there was increase of swollen up to his right hand.   He went to A & E of QEH on 16^th September 2008 for medical consultation.

13.According to what the Applicant described more in detail during cross examination how the accident occurred and how he suffered injury, he should have suffered serious injury to his right foreman when the machine, producing about 60 tons of pressing force, trapped his right forearm for 1 to 2 minutes, should crush his forearm first before further pressed on his right wrist and right hand. 

14.Amazingly, according to the notes of the treating doctor, not only did he fail to complain of pain over his right forearm when he consulted A & E on 16^th September 2008, there was no pathological evidence that his forearm was injured, let alone soft tissue injury.  He just complained of pain over his right hand and right shoulder as reflected from the said doctor’s descriptions of his body sketch.   According to the contemporaneous notes of the treating doctor, he recorded the Applicant’s complaint on pain by using 3 lines pointing to the regions near the right index finger, right wrist and right shoulder.  The doctor’s assessment was:

“- right wrist mild crushed on 13/9, no sign swelling/deformity

–fall, mild right shoulder pain”.

15.Had the accident been occurred like what he described, there was no reasonable explanation as to why he did not complain of pain over the right forearm, let alone the lacking of objective evidence on injury to his right forearm.  Further, after being referred to the said notes revealing his complaint of shoulder pain, he sought to stress at trial that his shoulder pain was attributable to the alleged accident as well.  However, he never mentioned shoulder pain in his witness statement, his witness statement only focused on pain over his right hand.  Had there been shoulder pain attributable to the alleged accident, again there was no reasonable explanation as to why he did not mention it in his witness statement. 

16.Moreover, he emphasised that his right hand pain was not eased despite the use of local medicine oil, his hand was swollen up during 14^th and 15^th September 2008, therefore he went to A & E for consultation on 16^th September 2008.  However, the above notes reveal: “[the patient complained of] right wrist mild crushed on 13/9, no sign swelling/deformity”.  Had his right hand been swollen up that caused him to seek treatment, there was no reason why the doctor recorded that “no sign swelling”. 

17.Had the Respondent unfairly treated him on 14^th September 2008, by saying no more work for him in spite of the accident, there was no reasonable explanation as to why he went to hospital for treatment 3 days after the alleged accident, or 2 days after he was told to leave the factory.

18.The above analysis not only showed that the Applicantchanged his version from time to time.  He was incredible in material aspects.    I rejected his evidence.    On balance of probabilities, I accept the Respondent’s evidence and reject the Applicant’s evidence unless there is no conflict between the Parties.

19.It follows that the joint examination report, that hinged on the assumption that there was an accident, becomes irrelevant on the question of quantum and the issue of permanent loss of earning capacity.  The Applicant’s appeal against the Employees’ Compensation (Ordinary Assessment) Board’s assessment made on 25^th November 2009 should be dismissed.

20.Had the Respondent been held liable and I need to consider the issues of permanent loss of earning capacity and quantum.  I would have come to the conclusion as follows.

D.   QUANTUM OF COMPENSATION

21.The burden lies on the Applicant to prove the quantum of compensation he is seeking under the various sections of the Ordinance, and to show that I should replace the Board’s assessment with my own.

22.On 11^th November 2009, the Applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board. On 25^th November 2009, the Board issued the certificate of assessment (Form 7) confirming the 247 days’ sick leave as his absence from duty necessary as a result of the right wrist and hand injury resulting in right hand pain.  It further assessed his permanent loss of earning capacity at 0.5%.  The Board made the remarks that it does not determine the liability for compensation but assess the quantum of loss caused by the injury/accident/medical condition.

23.The Applicant relied on Dr. Johnson Lam’s opinion and contended that the permanent loss of earning capacity assessed at 0.5% should be revised to 2%.  Dr. Lam opines that the residual pain in the dominant upper limb, the right hand and forearm soft tissue should carry 2% loss of earning capacity.  Dr. Wong agrees with the Board’s assessment.   

24.Their conclusion refers to these objective matters.  Firstly, at the time the Applicant went to A & E for treatment on 16^th September 2008, the Applicant complained of pain on right wrist and right lateral 3 fingers from the thumb to middle finger.  Examination showed tenderness at wrist at snuffbox and no bruising or swelling.  The passive range of movement of wrist was full.  Secondly, the repeated attendances from mid October to early November 2008 showed his presentation of subjective pain without significant abnormal signs, such as on 7.11.2008: “no swelling, no redness, no wound, range of movement wrist and elbow normal”.  His main objective attending was request for sick leaves.   Thirdly, for consultation on 14^th November 2008, examination showed mild bruises over index finger and middle finger.  Soft tissue swelling over right index finger.  Fourthly, for consultation on 21^st November 2008, examination showed mild bruises over index and middle fingers,   soft tissue swelling over right index finger. 

25.From the above objective matters, it is lucid that from 16^th September to 7^th November 2008, the records revealed the Applicant’s subjective pain.  The consultation after 7^th November 2008 revealed mild bruises over right index and middle fingers.  That is to say the Applicant’s fingers with no sign of bruising or swelling for the first 8 weeks after the alleged accident, suddenly developed bruises over his right and middle fingers.  Dr. Lam’s opinion was lacking analysis on how could this happen.  I am of the view that Dr. Wong’s opinion is, not only convincing, but tallies with contemporaneous records and objective evidence.   He opines that: “the GOPC [Yau Ma Tei General Outpatient Clinic] records clearly indicated Mr. Brar’s condition was quite static since the first consultation and he did not have any serious objective pathology.  He was simply trying to prolong his sick leaves as much as possible.  At the time of assessment, Mr. Brar still complained of rather severe pain, worse with cold and rainy weather, and he alleged that he could only lift/carry a maximum of about 2kg.  On the other hand, objective examination did not reveal any significant muscle wasting or abnormality in the right upper limb.  The ranges of motion of the upper limb were normal.”

26.Even Dr. Lam, the Applicant’s expert, has the “combined view” that the degree of pain that the Applicant complained of should not be as severe as he described.  I agreed with Dr. Wong’s concluding opinion that the Applicant’s subjective complaints are obviously exaggerated and out of proportion to the relatively mild injury.  Considering the medical records and the negative examination findings, he should have minimal residual pain and very little if any functional impairment.   In essence, I do not see any factual, legal or medical basis to change the assessment from 0.5% to 2%.     

27.I shall now come to the question of quantum.  It is admitted that the Applicant was aged 27 at the time of the injury and his monthly remuneration was HK$9,700.

D-1    Section 10 compensation

28.The Applicant has been given 247 days’ sick leave.  This ended on 21^st May 2009.  Since then he has not been granted any further sick leave.   The Respondent contended that based on Dr. Wong’s opinion, at most 6 weeks or 42 days’ sick leaves should be adequate in light of the mild soft tissues injury.    While it is likely that the treating doctors simply acceded to the Applicant’s request for sick leaves without careful inquiry, there is no sufficient basis to challenge the issuance of the sick leaves especially section 16 of the Ordinance provides a mechanism for the Respondent to do so but it did not.   

29.In the premises, I do not regard Dr Wong’s opinion of such a weight to suggest that the 247 days’ sick leaves granted to the Applicant are inappropriate, unreasonable or insufficient.

30.For the above reasons, I find that the Board’s assessment of 247 days of absence from duty necessary as a result of the injury appropriate, and would not replace it with any other assessment.

31.I therefore award the Applicant HK$63,890.00 (HK$9,700/30 x 247 x 4/5) as compensation under section 10 of the Ordinance.

Section 9 compensation for permanent partial incapacity

32.As I said above, the Board assessed the Applicant’s loss at 0.5% and I see no reason to replace 0.5% with my own assessment.    

33.I therefore award the Applicant HK$4,656.00 (HK$9,700 x 96 x 0.5%) as his compensation under section 9 of the Ordinance.

Section 10A medical expenses

34.The Applicant claims HK$4,000.00 for the various medical consultation fees he has paid for attending the government hospital and clinics. This was accepted by the Respondent.

35.I therefore award the Applicant HK$4,000.00 under section 10A of the Ordinance.

Conclusion

36.For the reasons set out above, had the Respondent been held liable, the compensation for the Applicant under the Ordinance should be: (a) HK$4,656.00 under section 9, (b) HK$63,890.00 under section 10, and (c) HK$4,000.00 under section 10A.   The Applicant is further entitled to interest on these sums at half judgment rate from the date of injury to the date of judgment, and thereafter at judgment rate until full payment.

37.In summary, the Application is dismissed.  Costs order nisi be made in that the costs of the Application be to the Respondent with certificate for counsel.  Such costs shall be taxed if not agreed.  The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.  Unless any of the parties seek to vary the costs order nisi by way of summons within 14 days from the date hereof, the cost order nisi shall become absolute 14 days from the date hereof.

Mr. J. Massie of Messrs. Massie & Clement,for the Applicant.

Ms. Julia Lau, instructed by Messrs. T. S. Tong & Co., for the Respondent.