IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO. 178 OF 2002
IN THE MATTER OF AN APPLICATION
||HUI SING PAN
||ROSE KNITTING (ASIA) LIMITED
Coram: His Hon. Judge Leung in Court
Date of hearing: 6-7 June 2007
Date of handing down judgment: 9 July 2007
1. The Applicant claims compensation in respect of accidental injury allegedly arising in and out of the course of his employment as a driver. The Respondent, his employer, denies liability and disputes certain aspects of the quantum.
2. The Applicant was 61 years old when he was employed by the Respondent. He started work on 8 February 2000. His major duty was to drive at the order of Mr. Yip, who was and is a director of the Respondent, and his family. He would also do some shopping for Yip’s family in the morning.
3. The accident allegedly happened in the morning of 14 March 2000, about a month after the commencement of his employment. The Applicant was at the car park of Mr. Yip’s residence at South Bay, Hong Kong, cleaning a 7-passenger van. The van was one of the vehicles which he would drive in the course of his duty. He claimed to have sprained his back.
4. 4 days later, on 18 March 2000, the Applicant consulted Dr. S K Kwok, a private medical practitioner, for back injury. On the following day, the Applicant also attended the accident & emergency ward of the government hospital.
5. On 23 March 2000, the Applicant consulted Dr. K W Tam, another private medical practitioner.
6. On 28 March 2000, the Applicant consulted Dr. Kwok again for back injury. On the following day, the Applicant went to the hospital where X-ray was taken this time.
7. On 10 May 2000, the Applicant consulted Dr. C K Chan, an orthopaedic specialist.
8. The attending doctors gave the Applicant various sick leaves. Notwithstanding that, the Applicant continued to work until 17 May 2000 when he finally admitted himself to the hospital. He was discharged a couple of days later.
9. During the hospitalisation period, the Applicant filed a report of the alleged accident to the Labour Department ( “the Department” ). As a result, the Department wrote to the Respondent on 18 May 2000. The Respondent filed Form 2 on 23 May 2000, but denying any knowledge of the alleged accident on the basis that no such report has been received from the Applicant.
10. The Applicant continued his follow up treatment after discharge. On 3 June 2000, he resumed his duty. On 14 June 2000, he wrote to the Department to cancel his claim. The Department notified the Respondent on 17 June 2000 of the same.
11. One week later, on 21 June 2000, the Respondent dismissed the Applicant. Besides the salary for June, he received one month’s salary in lieu of notice and pro rata year-end double pay.
12. Towards the end of 2001, the Applicant sought legal aid assistance and eventually restored his claim filed with the Department. Apparently the Respondent was notified of the same and replied on 23 January 2002. The Respondent maintained that it had no knowledge about the alleged accident until the Department’s previous letter dated 18 May 2000. The Respondent also queried whether the Applicant’s alleged injury was the result of an accident arising in and out of the course of his work or was his pre-existing condition.
13. The Application herein was filed only on 5 March 2002.
14. The Medical Assessment Board on 19 August 2002 concluded that the Applicant suffered from sprained back resulting in pain and stiffness. Loss of earning capacity was assessed to be 2%.
15. Further MRI on the Applicant’s back, done in the following months in the Mainland and locally, confirmed the protrusion of L4/5 intervertebral disc and compression of both L5 nerve roots. In November 2004, posterior decompression of the Applicant’s lumbar spine was performed in the hospital.
16. In the light of that, the Medical Assessment Board on 18 February 2005 adjusted its assessment of the Applicant’s loss of earning capacity to 5%.
17. Except for the alleged accident, the above background was basically common ground or in any event evidenced by contemporaneous documents.
18. According to the Applicant, the accident happened when he was standing on a stool to wash the top of the van with a wet towel. In the course of that, his left hand slipped so that he lost balance and fell down to his left. He landed on his hands and knees on the ground.
19. There was no eyewitness of the accident.
20. The Respondent put the Applicant to proof and argued that the Applicant’s evidence was incredible.
How the Applicant fell
21. Besides his testimony, the Applicant has arranged photographs to be taken of himself demonstrating how he fell. Mr. Wong for the Respondent attacked the Applicant’s credibility on the basis that he did not mention in his statement the actual twist of his body in the alleged fall but only complained about pain in his hands and feet. Mr. Cheung for the Applicant however submitted that the fall from the stool to the Applicant’s left, as demonstrated and explained by the Applicant, naturally involved the back sprain. The onset of symptom and pain at his back was gradual.
22. Both counsel asked me to apply common sense to judge whether the fall could involve the back sprain mechanically. In my view, the proper application of common sense in these circumstances is this: If the manner in which the Applicant allegedly fell was obviously inconsistent with his back sprain, I would have expected the medical officers and doctors, who have examined him, to make such observation. The fact was that none of them has raised such query.
23. Both Mr. and Mrs. Yip denied having been informed by the Applicant of the accident. Mrs. Yip went further. She added that on one occasion in about a month after the Applicant started to work for them, she discovered that he looked unwell. Upon enquiry, the Applicant allegedly told her that he injured himself in the course of fetching a still usable chair from a refuse collection centre near home.
24. According to the Applicant, he said he first informed Mr. Yip of the accident when the latter joined him in the car in the morning when he sprained his back. Apparently Mr. Yip was pre-occupied with a telephone call. The Applicant fairly admitted that he could not be sure whether Mr. Yip heard him or not at that moment as Mr. Yip made no response. He has not consciously sought to repeat or to update Mr. Yip about his condition thereafter. However there should be no dispute that some sick leave certificates had been handed to the Yips.
25. He admitted that Mrs. Yip did ask whether he was well one day in March but he denied having told her what she alleged. He explained that the stool, which was in fact a low chair, he used at the time of the accident was fetched from the car park and was returned to where it was after use. What he told Mrs. Yip was that he fell and sprained his back while washing the van.
26. Mr. Wong for the Respondent queried how the Applicant could have not ensured that the Yips were duly informed of the accident and his condition. He queried how the Applicant could have just continued working and tolerated the deterioration of his condition, if that was as serious as that portrayed in his statements. He suggested that the reason was that the Applicant well knew that his condition was not the result of any accident at work.
27. The answer of the Applicant was mainly his then concern not to jeopardise the job. Prior to working for the Yips, the Applicant had been a driver for another employer for years. Upon the death of his employer, he had to look for another job. Eventually, the Applicant managed to meet the father of Mr. Yip ( “Mr. Yip Senior” ) who was a business friend of his deceased employer. Arrangement was made so that the Applicant subsequently attended...