Mary Jane Dandoy Dela Torre v. Lam Ka Wai Grace
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DCEC 147/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 147 OF 2012 ________________________ IN THE MATTER OF AN APPLICATION BETWEEN
________________________ J U D G M E N T ________________________ 1.The applicant (“DT”) used to work as a domestic helper under the employment of the respondent (“Lam”) at Lam’s apartment at Bayview Terrace, Castle Peak, New Territories. On 27 April 2011, Lam terminated DT’s employment. DT now claims against Lam for compensation pursuant to the Employees’ Compensation Ordinance, Cap 282 (“ECO”) for alleged injuries sustained during work inside the bathroom of the apartment on the day before the termination of her employment. 2.In dispute are:
3.Both questions are matters to be proved by DT. She was represented by solicitors until September 2012, when her application for legal aid was refused. THE ALLEGED ACCIDENT The parties’ respective cases 4.Lam was and still is an air stewardess. There is no dispute that due to suspicion about DT’s responsibility for some missing dried abalones kept by Lam at home, Lam summoned the police just past midnight on 27 April 2011. Search by the police ended with no result. Nevertheless, due to the breakdown of trust, Lam decided to terminate DT’s employment forthwith. 5.At Lam’s request, the police waited for DT to pack her belongings and escorted her out of the apartment. Up to that moment, DT had never complained about any accident or injury at work. Nor did she mention or request for admission to the hospital when she left the apartment with the police officers. 6.After her return to Hong Kong from flight duty, Lam arranged the air ticket for DT on 1 May 2011; and sent a telephone text message to DT advising her to collect the passport, cheque and air ticket from the employment agency. Lam allegedly received the reply that DT had already filed her claim against Lam with the Labour Department (“the Department”). 7.As a result, Lam visited the Department to enquire, but only to be told that no report had actually been made by DT against her. It was only on 4 May 2011 when Lam was informed by the Department that DT accused Lam of terminating her employment just after she had been injured at work hours before on 26 April 2011. 8.According to the application, the accident happened at about 4 pm on 26 April 2011 when DT was standing on a plastic stool, cleaning the upper part of the windows and walls in the bathroom of the apartment. The stool allegedly slipped; DT lost balance and fell. She allegedly suffered injury to her right shoulder and her upper as well as lower back. DT’s evidence 9.It is common ground that DT moved in to work at the apartment on 18 April 2011. By then, she had just finished another 2-year contract as domestic helper with another employer in Hong Kong. 10.DT stated in her statement that the accident happened at about 3:30 pm on 26 April 2011 (instead of 4 pm as stated in the application). Lam happened to be away from the apartment. Exactly what DT was allegedly doing at the time of the alleged accident needed much clarification. 11.In her notification of accident filed in May 2011, DT described that the accident happened when she was cleaning “the bath tub”; and when the plaster stool slipped, she fell and hurt “her head, arms, back and shoulder”. 12.This was followed by Form 2 filed by Lam in the same week. Lam stated that DT had never mentioned any accident or injury at work; and she noticed no sign of injury on DT as DT appeared to be physically normal. 13.There is no dispute that there was no bath tub but a shower cubicle inside the bathroom of the apartment. DT may perhaps be taken to mean the shower cubicle when she was referring to the bath tub. Even so, the picture painted by DT continued to be unclear. 14.In her statement to the Department dated 25 May 2011, DT described the accident to have happened when she was cleaning “the upper glass and walls” instead. As a result, she hurt her “back and right shoulder”. That she hurt her head and arm, according to her earlier notification of accident, was not mentioned or in fact repeated in all her subsequent statements. 15.DT then made another statement to the Department. DT could not recall when she made it. But in that statement, DT referred to events happening up to 26 May 2011. By inference, the statement must have been made subsequent to that date. In that statement, DT described her accident when she was cleaning “the upper part of the bathroom window glass overhead”. 16.In the application filed in January 2012, as mentioned, DT described the accident when she was cleaning “the upper part of the windows and walls in the bathroom”. 17.The solicitors for Lam then wrote to the then solicitors for DT on 1 February 2012; and sought clarification of precisely which part of the bathroom DT was allegedly cleaning when the stool slipped. The reply on the following day was that DT was cleaning “the window and walls behind the toilet seat in the bathroom”. 18.This prompted the solicitors for Lam to write again, expressing difficulty in understanding how DT could be cleaning both the window and the walls on the stool when the accident happened. It was also pointed out that according to a sketch previously drawn by DT to the Department, DT was said to be cleaning the glass partitions of the shower cubicle, neither the window nor the walls behind the toilet seat. A photograph of the bathroom was also provided. 19.The solicitors for DT then replied to confirm that DT was at the material time cleaning “the outer part of the glass partition of the show cubicle”. 20.When it came to her statement for the purpose of the present proceedings, DT suggested that she was cleaning “the top of the glass of the shower cubicle” at the material time. 21.DT was given the chance to explain in court the above various versions. She did not accept there was discrepancy; but if there was, it was her then solicitors who got it wrong. However, that would not explain her verification of the truth of the application and the witness statement. 22.As depicted in the photograph, the shower cubicle situated at one corner of the bathroom was enclosed on 3 sides by glass partitions, with the middle side being the glass door opening. In court, DT said that she was cleaning the glass door side in the middle when she fell. 23.This was in fact the very first time DT has ever identified which glass partition she was allegedly cleaning when she fell. But this still differed from what she suggested in the sketch that she drew for the Department previously. In the sketch, DT clearly identified the glass door side in the middle; but indicated that she was cleaning the glass partition to its right. As written on the sketch, she in her own words allegedly “fell in the right side”. 24.As to the absence of eye-witness, DT somehow volunteered in her statement that she was not at all alone at the apartment when the accident happened. She stated that Lam’s daughter was there at the time. But she offered to explain why Lam’s daughter might have heard nothing. She explained that Lam’s daughter was in her room and she only made a small sound when she fell which was not so loud that Lam’s daughter could hear. That was so, notwithstanding the severity of the fall and multiple injuries alleged. 25.DT continued to state that she informed Lam forthwith of the accident and her injuries upon Lam’s return to the Apartment that afternoon. She requested; but was denied visit to the hospital or a doctor. Lam allegedly gave her some panadol tablets to take. 26.DT agreed that she went with Lam to the supermarket later that evening. She also agreed that she carried most of the items purchased then. But she claimed that it was because Lam made her do that. 27.According to DT, just before bedtime, she repeated her complaint to Lam about her hurting back now getting worse; but Lam again gave her more panadol tablets. 28.As mentioned, at around midnight, Lam confronted DT about the missing abalones. Police was summoned; and her employment was also terminated right there and then. According to DT, after leaving the apartment, she was escorted by the police to the police vehicle and driven to the main road. She then boarded a taxi for a boarding house in Tsuen Wan. She emphasized that her body was hurting very much then. 29.It is common ground that DT attended the hospital only on 30 April 2011, some 4 days after her alleged injury on 26 April 2011. She explained that she was very distraught and did not know what to do. She did not have much money and did not know how much to pay for hospital. She called her friend every day with a view to her friend agreeing to take her to the hospital. This finally happened on 30 April 2011. 30.DT stated that her friend paid all the hospital charges for her. But in court, she said that her friend advised her that those charges could be paid in arrears. As apparent from the medical receipts, some of those charges are still due and owing as of today. Lam’s evidence 31.Lam testified. Lam kept some dried abalones, which she decided to take out to dry on 26 April 2011. At night, Lam got packed for her duty flight to the United States on the following day. In the course of repacking the dry abalones by midnight, she discovered that 3 pieces were missing. What happened afterwards was already stated in her answers mentioned above. 32.Lam explained that she could not leave her daughter in the care of DT while she would be away on flight duty for days as the mutual trust had broken down as a result of the missing abalone episode. Therefore she terminated DT’s employment forthwith. DT left with the police officers at about 1:15 am on 27 April 2011. 33.Lam reiterated that DT had made no mention of any injury at work on 26 April 2011 at all even when she was escorted by the police to leave the apartment. Nor did she notice any sign of injury during the same period. She denied having given any medicine to DT. Discussion 34.It may be said that for the purpose of liability to compensate under the ECO, it matters not precisely what work the employee was doing when the accident happened. One may query whether it matters which part of the bathroom DT was cleaning at the material time. I would share that view but only if the occurrence of an accident inside the bathroom is either undisputed or sufficiently apparent from the circumstantial evidence. The present case is neither of these two scenarios. 35.When whether the alleged accident happened at all is in dispute and there is no eye-witness, the evidence in respect of precisely how the accident allegedly happened, and whether such evidence is credible, becomes crucial. DT’s evidence in this respect, I find, is hardly impressive. 36.Further, DT’s case is that she had more than once informed Lam of the accident and her injuries. Lam allegedly denied her request to go to the hospital or a doctor. Lam also allegedly made her carry heavy weight that very afternoon. Her repeated complaint about the accident and injury later that night was again not heeded to. The missing abalone episode followed; and she had to face accusation and search by police. She ended up with termination of employment and demand to leave the Apartment in the small hours of 27 April 2011. One would not have expected DT to still remain silent about the alleged injury at work and growing pain, whether before or after she left the apartment with the police. Still no request was made for going to the hospital. DT admitted that she never complained to the employment agency either. 37.Objectively, the alleged distraught state or the lack of money does not impress me as credible explanation. According to DT, she boarded a taxi and afforded the journey from Tuen Mun to the boarding house in Tsuen Wan. I am not impressed that the alleged distraught state continued for days. I am also not impressed by the alleged ignorance of what to do, including visiting the public hospital, as DT had worked in Hong Kong for 2 years by then. 38.The Accident & Emergency Department of the hospital reported in July 2011 that DT was said have fallen and landed on her buttock, a complaint never made at all before. DT suggested that the doctor got that wrong. 39.Further, the doctor found diffuse tenderness over the upper and lower back of DT only. There was no numbness or weakness. X-ray of the lumbar spine showed no fracture. Nor did she have any focal neurology. She could walk unaided. Whilst she complained that Lam allegedly gave her panadol despite her pain, DT was discharged from the hospital with analgesics. Again there was no mention of complaint about her head or arm being hurt in the accident. 40.The above course had not changed during DT’s repeated visits to the hospital for the same complaint. Records of the Physiotherapy Department of the hospital contained the remark that DT’s subjective complaint did not match the objective findings; and the repeated remarks that she demonstrated exaggerated response during examination. 41.In my view, it matters not whether Lam’s suspicion about DT’s responsibility for the missing abalones was well founded or not. Lam lost her faith in entrusting her daughter with DT in such circumstances as her job would take her away later on the same day for days. Rightly or wrongly, that was Lam’s decision, especially when Lam had no intention of denying DT her entitlement under her contract for premature termination. 42.As mentioned, DT complained to the Department that Lam terminated her employment wrongfully as she had just suffered injuries in the course of work. In view of her evidence, the suggestion must be that Lam did so knowingly. I see no reason for Lam to do that. 43.According to Lam, when DT was to leave the apartment, she cared to remind DT to collect her salary, passport and air ticket from the employment agency a few days later. The evidence shows that upon her return from her flight duty a few days later, she did arrange and deposit with the employment agency DT’s salary and air ticket on as early as 1 May 2011. Lam also sent a text message to DT advising her to collect them from the employment agency. 44.Upon DT’s suggestion that she had already filed her claim with the Department, Lam cared to visit the Department but only to be told that no such thing had happened. But when DT eventually did file her claim with the Department, Lam readily settled the amount of the salary, salary in lieu of notice and allowance by late May 2011. She only disputes the claim for wrongful dismissal, the determination of which, I understand, has been adjourned for the time being. 45.In the circumstances, making up excuse for terminating DT’s employment would have served no financial purpose, as Lam never sought to deny liability towards DT’s entitlements for the premature termination of the contract short of the alleged wrongful dismissal. 46.That DT was at the material time covered by employees’ compensation insurance taken out by Lam further militates against any suggestion that Lam knowingly terminated DT’s employment with a view to evading liability to compensate for her injury at work. 47.DT did not cross examine Lam in court. That was so, notwithstanding my explanation that it might be submitted on behalf of Lam at the end that Lam’s evidence was uncontroverted. Lam’s oral evidence in court, though brief, was straightforward and certain in its own right. She was, to begin with, fair enough to admit in her statement that the performance of DT during the 9 days before the termination of employment was in fact acceptable. 48.Understandably, Lam, as the respondent, does not have a positive case to explain the condition of DT or even to deny that it was the result of some injuries. One however cannot labour much on this point. Otherwise, one runs the risk of reversing the burden to prove injury at an accident in the course of work, which is the pre-requisite to liability to compensate under the ECO. 49.I am asked to assess which of DT and Lam is to be believed. I have to, and did, consider all the circumstances. They include the background of the parties and their respective ability to articulate and to express properly. I also have to, and did, consider the inherent plausibility of their versions of events. I reach my conclusion on the balance of probabilities. 50.I conclude that it is unsafe to rely on the evidence of DT on the material aspects of the case. On balance, I prefer the evidence of Lam. In the circumstances, I find that DT fails to discharge her burden to prove an accident at work in the course of her employment with Law that resulted in her injuries as alleged. Liability is thus not established; and compensation is not payable. QUANTUM 51.For completeness, I proceed to consider the question of quantum. 52.I have recited above the gist of the medical reports on DT. She was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) on 16 February 2012. As per Form 7 dated 1 March 2012, for (1) right shoulder pain and stiffness; (2) low back pain and stiffness; and (3) right lower limb pain, DT was assessed to have suffered 5% permanent loss of earning capacity. 53.Upon Lam’s objection, the Board re-assessed on 19 April 2012 which led to Form 9 dated 3 May 2012. The original assessed remained. Sick leave granted from 30 April 2011 to 2 April 2012 was deemed necessary as a result of the injury. 54.There is no appeal by either party against Form 9 pursuant to section 18 of the ECO. At the trial, Mr Lam for Lam accepted the assessment, subject to liability. 55.Mr Lam also accepted that the pre-accident monthly earnings of DT were HK$3,580. He also accepted that sick leave was given to DT from 30 April 2011 to 2 April 2012. Section 9 compensation 56.DT was born in 1982 and was 28 years sold at the time of the accident. Pursuant to section 9, the compensation for loss of earning capacity would have been HK$3,580 x 96 x 5% = HK$17,184. Section 10 compensation 57.Pursuant to section 10, the compensation for temporary incapacity during the period of sick leave would have been HK$3,580/30 x 338 days x 4/5 = HK$32,267.73. Section 10A compensation 58.Medical receipts issued by the hospital are produced. However a lot of them are illegible. Despite invitation to do so, DT did not quantify the medical expenses allegedly incurred. Doing the best I can, I can only count from the legible copies an amount of HK$465. The latest medical receipt identifiable, which was dated 5 August 2011, recorded that by then another amount of HK$600 was due and outstanding. The amount that could be ascertained is HK$1,065. ORDER 59.Failing on liability, DT’s application for compensation must be dismissed. So I order. 60.I see no reason why costs should not follow the event. Having said that, I bear in mind that there was no appeal under section 18 of the ECO. When asked at the beginning of the trial, Mr Lam also confirmed that he would not be relying on the surveillance evidence, including the video recording and report, on DT. It is not fair that DT should be held responsible for such costs that were effectively unnecessary. 61.I make a nisi order that except for the costs of obtaining and adducing the surveillance evidence, DT shall pay the costs of this application to Lam, including any costs reserved. Costs shall be taxed, if not agreed, with certificate for counsel. In the absence of application within 14 days to vary, the costs order shall become absolute.
The applicant, in person Mr Gary TK LAM instructed by Messrs Simon C W Yung & Co for the respondent | |||||||||||||||||||
Further hearings and rulings under DCEC 147/2012