SO LAI HING v. WAH KING GARDEN ARTS CO LTD

DCEC 1112/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1112 OF 2010

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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BACKGROUND

1.  In this Application, the Applicant claims against the Respondent for compensation pursuant to the Employees’ Compensation Ordinance (Cap.282, Laws of Hong Kong). 

2.  She alleged that she was injured on 20^th October 2008 while working as a gardener for the Respondent at the Peak Galleria.

3.  According to the Certificate of Assessment dated 6^th April 2011 (“the Form 7”), she was certified to have suffered from “left 4^th toe fracture resulting in left 4^th toe numbness, left foot pain and left ankle pain and weakness” and as a result of which she had suffered from 2% loss of earning capacity permanently.  A total of 41 days’ sick leave was certified to be necessary by virtue of the Form 7.

4.  There is no dispute that the Respondent was her employer at the material time and that she was earning a monthly salary of $8,000 at the time of the accident. 

5.  However, the Respondent alleged that she was not injured while she was working on 20^th October 2008 as alleged.   The Respondent also contended that even if she had encountered any accident on that day while she was working, such an accident did not lead to the injuries as stated in the Form 7.

6.  Hence the issues in the present case are:

(1) Was there any accident as alleged by the Applicant on 20^th October 2008?

(2) If so, did the accident cause the Applicant’s injuries as stated in the Form 7?

7.  It has been made clear on behalf of the Respondent at the outset that in the event that I find these issues in favour of the Applicant, there is no dispute that the amount of compensation should be as follows:

DISCUSSION

Approach in assessment of credibility

8.  Resolution of the said issues involves assessment of the respective credibility of the Applicant, Mr. So Yan Ting (“Mr. So”) and Mr. Chi Chun Loi (“Mr. Chi”).

9.  In doing that, I will follow the approach adopted by Chung J. as follows:

“There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified:-

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest”.

(See, for example, Sai Kung P.L.B. Maxicab (No.1 & 2) Company Limited v Hiew Moo Siew & Others(HCA 2554/2006, unreported, 6^th July 2011) at para.30 and Star Glory Investment Ltd. v. Kai Tuo (HK) Technology Co. Ltd. & Others(HCA3523/2002, unreported, 13^th August 2005) at para.12)

10. In the present case, it is clear that the Applicant changed her evidence a lot while she was in the witness box. I accept that probably because of her age (she is now 59 years old) and her low education level, she might not be able to understand fully some of the questions put to her, and as a result, she had given contradictory answers to the same questions if they were asked more than once (for example, whether she had told the medical practitioners that she was injured in the course of employment and that she had a fractured toe by reason of the accident). I have borne these in mind when I assess her evidence.

11. The same problem also appeared when Mr. Chi gave evidence. What I have mentioned above equally applies to him when I assess his credibility.

12. Giving evidence is not a memory test. The mere fact that a witness could not recall certain matters which took place 3 years ago does not automatically mean that he or she is lying. It depends on the importance of the event in question. The position would of course be different if it is apparent that a witness has selective memory.

Whether the alleged accident took place

The Applicant’s evidence

13.  The Applicant’s pleaded case is that on 20^th October 2008 at around 3pm, she slipped and fell onto the ground while she was watering the plants of a flower bed outside the Peak Galleria.

14.  I set out the crux of the Applicant’s oral evidence below:

(a) At the material time, she was watering the plants on the flower bed which was about 1 foot from the ground and in the course of which she slipped and fell.  Her left foot touched the ground before her bottom fell onto the ground.  She stated that she was in great pain.  She found that her left foot, in particular her 4^th toe thereof, became red and swollen.  She tried to call Mr. So once or twice but his mobile phone line was busy.  However, she did not call the Respondent company’s shop and report her accident on that day.

(b) Despite the pain, she continued her work until she had completely discharged her duty at around 4:30pm on the same day.  She then left Peak Galleria a bit earlier than normal (she was supposed to work until 5pm) so as to seek medical treatment.  She took the MTR to Dr. Chiang Kei (“Dr. Chiang”)’s clinic. Dr. Chiang is a Chinese medicine practitioner.

(c) Dr. Chiang told her that she had a fractured 4^th toe in her left foot and had given her sick leave for 1 day.

(d) She took the sick leave certificate (issued by Dr. Chiang) back to the Respondent company’s shop sometime after 9am on the next day and reported the accident to Mr. So and Madam Cheung Yuk Tuen (“Madam Cheung”) (a shareholder and director of the Respondent).

(e) She left Hong Kong afterwards and stayed in the PRC from 22^nd to 24^th October 2008.  During those 3 days, she attended a bone-setter’s clinic everyday.  She decided to go back to PRC for treatment because the bone-setter in the PRC was good and cheaper.

(f)  She came back to Hong Kong and started to work for the Respondent company again on 25^th October 2008.  However, because she was still in pain, after she had finished her work on 25^th October 2008 (or 26^th October 2008), she went to seek treatment at the A&E Department of Kwong Wah Hospital.

(g) She continued to work for the Respondent company until December 2008.

(h) She then filled in some forms and reported her accident at work to the Labour Department with the assistance of her son-in-law and the staff of the Labour Department.

15.  Adopting the approach which I set out above, I have come to the conclusion that I should reject the Applicant’s evidence.  I do not accept that there was any accident which took place on 20^th October 2008 at around 3pm as alleged.

16.  In the Notification of Accident dated 22^nd December 2008 (“the Notification of Accident”) (on which the Applicant signed upon her confirmation that the information filled in on her behalf was correct), she did not report that she slipped and fell while watering the plants.  Instead, it was stated therein that she injured her toe when she jumped down from height while she was weeding.  This is totally different from what she said in Court and her pleaded case as to the circumstances of the accident which led to her injuries.  When she was cross-examined on the said Notification of Accident as to the location where she “jumped”, she said it was on the top floor of the Peak Galleria.  It is therefore clear that the Notification of Accident was not referring to the accident which allegedly took place on the ground floor at 3pm on 20^th October 2008.

17.  This contradicted what she told this Court at the beginning of her oral evidence, namely, that she did not have any other accident on 20^th October 2008.

18.  Even though the Applicant alleged that her memory was not good in relation to past events, she accepted that she had good memory in respect of the time and venue at which she suffered her injuries because she was in pain as a result thereof.  Hence, if there was really an accident which took place at around 3pm on 20^th October 2008 (which she said led to great pain), she would not have omitted that when she caused the Notification of Accident dated 22^nd December 2008 to be filled in.

19.  Mr. Fu argued on her behalf that since the Applicant’s son-in-law who filled in the Notification of Accident on her behalf was not an educated person, it was possible that he had omitted to mention the accident in the afternoon of 20^th October 2008 but only put down what he thought was relevant.

20.  This line of submission does not assist the Applicant’s case.  If Mr. Fu is correct, then this shows that there was nothing which happened in the afternoon of 20^th October 2008 which worth mentioning in the Notification of Accident.

21.  In the Applicant’s reply to the Labour Department dated 17^th February 2009 (“the Reply to LD”) (on which the Applicant signed upon her confirmation that the information filled in on her behalf was correct), she stated that the accident took place at around 11:40.  By the same token, she would not have given a wrong time if there was indeed an accident at 3pm as alleged. 

22.  In the Reply to LD, the Applicant also stated that she did not inform Mr. So about the accident because he was not in the office at the material time.  However, it was her evidence in Court that she had called Mr. So’s mobile phone number once or twice shortly after the accident at around 3pm but his line was busy.  She had not tried to call the Respondent company’s office (its shop) on that day.  Hence, there is no basis for her to say that Mr. So was not in the office at the material time.  This casts serious doubt as to whether there was any accident on 20^th October 2008 at around 3pm as alleged.  In my judgment, since there was no such accident, she did not try to call Mr. So as alleged.  It is more likely than not that when she was filling in the Reply to LD, she just gave an answer arbitrarily as to why she did not inform the Respondent there and then.

23.  Further, in the Reply to LD, when she was asked to whom of the Respondent did she report the accident which took place on 20^th October 2008, she answered twice that she reported the incident to Mr. So. Contrary to her evidence given in court and in her witness statement, she did not state therein that she had also informed Madam Cheung about the accident.  Again, this shows that she was just making up the answer when she filled in that form.  There is no reason why she did not include Madam Cheung in the answer bearing in mind she was the boss. 

24.  Moreover, next to the Applicant’s answer in the Reply to LD that she had informed Mr. So about the accident on the next day of the accident, she put down Mr. So’s mobile phone number which most probably means that she informed Mr. So by calling his mobile phone.  This is inconsistent with her evidence given in court that she informed Mr. So in person at the Respondent company’s shop on 21^st October 2008.

25.  The Applicant was introduced by Mr. Chi to this job and she agreed that they were friends.  She also accepted that Mr. Chi was her supervisor.  If the Applicant was really injured at work on 20^th October 2008, it is only natural that she would have called Mr. Chi as soon as possible.  However, she did not do so, even upon her unsuccessful attempts to contact Mr. So.  I do not accept her explanation that she had decided not to call Mr. Chi because he was on leave on the day.  In my view, it would not cause any trouble to Mr. Chi if the purpose of the call was simply to inform him about the accident, particularly when they were acquaintances.  It is unbelievable that the Applicant would have left Mr. Chi in the dark if she had indeed met an accident at work.  Taking into account her relationship with Mr. Chi, she would not have taken leave without informing Mr. Chi at all as she alleged.  In my view, what happened was that the Applicant did call Mr. Chi, but on 19^th October 2008, and in the course of this conversation she told Mr. Chi that she was injured at the Lo Wu Control Point (see below).

26.  I should specifically note that when the Applicant was cross-examined as to whether she had informed Mr. Chi after the accident, she answered that she could not recall because the event took place quite a number of years ago.  I do not accept that she could not recall this part of the event because she was able to answer other questions in relation to what happened after her alleged “fall” without much difficulty.  For example, she said she could remember that she called Mr. So soon after the alleged accident.  At the earlier part of her evidence, she could even give an explanation as to why she decided not to call Mr. Chi (she said it was because he was on leave).  I find that she was only trying to avoid answering the question here. 

Mr. Chi’s evidence

27.  Mr. Chi was called by the Respondent to give evidence.  The main part of his evidence is that he received the Applicant’s phone call during daytime on 19^th October 2008 by which the Applicant informed him that she fell and twisted her ankle at the Lo Wu Control Point while she was returning from the PRC.  Mr. Chi said he had asked the Applicant whether she was able to return to work on the next day because he wanted to take leave himself on 20^th October 2008.  He might not be able to take leave if the Applicant could not go back to work since they were the only workers of the Respondent who were responsible for the garden maintenance work at the Peak Galleria.  The Applicant replied that she was able to return to work.

28.  Therefore, it is said that the Applicant actually had had an accident before 20^th October 2008 while she was on holiday.

29.  Mr. Chi has exhibited a page of his log-book for the month of October 2008 with his witness statement.  He told this Court that although he was not required by the Respondent to keep any log-book, it was his practice to do so.

30.  In the log-book, it was stated that the Applicant called him on 20^th October at noon and informed him that she “返大陸時到羅湖關口某樓梯壹不小心扭傷右腳”.

31.  Mr. Fu cross-examined Mr. Chi that since the log-book recorded that the Applicant’s call was only made on 20^th October, the fact is that she did not call Mr. Chi on 19^th October 2008 as alleged.  Mr. Chi explained that he did not have the log-book with him when he talked to the Applicant on the phone on 19^th October 2008 because he had kept his log-book at home.  Therefore he only filled in the log-book on 20^th October 2008 and he probably has put down the wrong date.

32.  The contemporaneous nature of the log-book was not challenged.  Neither was any point made by Mr. Fu out of the fact that the entry incorrectly stated that the injured foot was the Applicant’s right foot.

33.  I accept Mr. Chi’s evidence that he indeed filled in the log-book on 20^th October 2008 but had put down a wrong date for his telephone conversation with the Applicant.

34.  According to the Applicant, she did not call Mr. Chi at all on 19^th October nor on 20^th October 2008.  If that is so, there was no way that Mr. Chi could put down the said entry in his log-book. 

35.  In my judgment, it is more likely than not that the Applicant did call Mr. Chi on 19^th October 2008 and inform him about her injuries.  In other words, the Applicant had already had her ankle injuries when she was attending work on 20^th October 2008.

36.  In the course of his cross-examination, Mr. Chi admitted that while the Applicant had been absent from work from time to time, he did not inform the Respondent accordingly.  He accepted that he had covered up the Applicant’s wrong-doing and this was done against the Respondent’s interest.  Mr. Chi’s evidence in this respect reinforces my view that he was telling the truth.  It should be borne in mind the background that Mr. Chi was very eager to assist the Applicant all along: He took the initiative to introduce the Applicant to this job; he wanted to teach the Applicant some skills so that she could earn a living in future; and he also kept the Applicant’s absence from work to himself without revealing the same to the Respondent.  In my judgment, he would not make up something so as to assist the Respondent in depriving the compensation which the Applicant is entitled to. 

37.  I have borne in mind the fact that Mr. Chi and Madam Cheung were in fact primary school classmates and they have known each other for a long time.  As admitted by Mr. Chi himself, he had a better friendship with Madam Cheung than with the Applicant.  However, as demonstrated by the way he dealt with the Applicant’s absence from work, he did not put the Respondent’s interest at first priority.  Hence, there cannot be any valid suggestion that Mr. Chi has come forward to give false evidence in support of the Respondent’s case by reason of his friendship with Madam Cheung.

38.  Mr. Fu for the Applicant argued that Mr. Chi is an incredible witness because his evidence that he had called and informed Mr. So on 22^nd October 2008 that the Applicant was working normally cannot be the truth given the fact that the Applicant did not go back to work on that day.  I accept that Mr. Fu has a valid point here.  However, I would not go so far as to say that Mr. Chi is an incredible witness merely by virtue of this point. I would accept Mr. Chi’s explanation that he had probably mixed up the date here.  Furthermore, even if I were to disbelieve Mr. Chi, it does not mean that I have to accept the Applicant’s case. 

39.  Most important of all is that I accept Mr. Chi’s evidence that the Applicant did inform him that she had injured her ankle on 19^th October 2008 at the Lo Wu Control Point and that he had informed Mr. So about this. 

Mr. So’s evidence

40.  Mr. So is the Respondent’s manager.  He gave evidence, among other things, that he received a telephone call from the Applicant on 21^st October 2008 in which the Applicant told him that she fell and twisted her ankle while travelling home after work by MTR on 20^th October 2008.

41.  Mr. So’s evidence in this regard is inconsistent to that given by the Applicant.  To recap, the Applicant told this Court that she had told Mr. So in person on 21^st October 2008 that she was injured while at work.

42.  In so far as there is any contradiction in evidence, I would prefer Mr. So’s evidence.  This is because, as I will explain below, the most important part of Mr. So’s evidence is supported by documents.

43.  The Labour Department first informed the Respondent about the Applicant’s potential claim of employees’ compensation by letter dated 22^nd December 2008.  Mr. So then filled in a Reply Form a few days thereafter (he said this must have been done within 14 days after 22^nd December 2008 as instructed by the Labour Department).  In the Reply Form, Mr. So reported that the Applicant had informed her supervisor (i.e. Mr. Chi) that she was injured at the Lo Wu Control Point.  Mr. So also stated that the Applicant had informed him that she was injured because she fell on the stairs inside a MTR station.  If the Applicant had not informed Mr. Chi and Mr. So about these matters beforehand, Mr. So could not have filled in the Reply Form in such a way.  Most importantly, the accident at the MTR station was subsequently confirmed by the Applicant herself to be true: In the Reply to LD (dated 17^th February 2009), she confirmed that she indeed slipped and fell at the Mongkok MTR station.  This shows that what Mr. So mentioned about the Applicant’s telephone call regarding the accident at the MTR station was not made up by him because there is no evidence which shows that he could have known about the accident at the MTR station from another source before he filled in the form in December 2008.

44.  Mr. So’s evidence that the Applicant called him and informed him about her leg injuries instead of telling him in person at the Respondent company’s shop is also supported by the Reply to LD where the Applicant put down Mr. So’s mobile phone number next to her answer that “she reported to Mr. So immediately in the next morning” (see paragraph 24 above).  I cannot see why the Applicant would put down Mr. So’s mobile phone number there if she did not mean that she informed Mr. So by phone.

45.  Mr. So’s credibility was attacked by Mr. Fu in various ways.  Suffice for me to say that despite the Applicant’s arguments which I have fully considered, I am satisfied that Mr. So is a credible witness and I accept his evidence as stated above. 

Conclusion

46.  The Applicant has the burden of proving that there was an accident which took place on 20^th October 2008 at around 3pm while she was working for the Respondent. In my judgment, she has failed to discharge that burden. 

Were the Applicant’s injuries caused by the alleged accident

47.  Strictly speaking, I do not have to consider this issue as I have found that there was no accident at work as alleged.

48.  However, I should add that even if the Applicant did slip and fall on 20^th October 2008 at around 3pm as alleged, she has failed to prove that the injuries as stated in the Form 7 were caused by this incident.

49.  The Form 7 described the Applicant’s injuries as:

“Left 4^th toe fracture resulting in left 4^th toe numbness, left foot pain and left ankle pain and weakness”

50.  The medical certificates which were produced in support of the Applicant’s claim for sick leave pay certified that the Applicant was suffering from fracture of her left 4^th toe.

51.  However,“fractured left 4^th toe” was not mentioned in Dr. Chiang’s sick leave certificate dated 20^th October 2008 at all despite the Applicant’s evidence that Dr. Chiang has told her about the fracture on 20^th October 2008.  I do not accept that she has been so told.  The diagnosis of Dr. Chiang as stated therein was “左腳踝關節脫臼”.  I do not accept that Dr. Chiang would have omitted to mention the fracture in the sick leave certificate if that was the diagnosis.  In my judgment, she has not suffered from any fracture by the time when she visited Dr. Chiang in the evening of 20^th October 2008.

52.  In fact, the Applicant accepted that when she left Dr. Chiang’s clinic on the day, her left ankle was wrapped and covered by Chinese medicine but her left fourth toe was not so covered.  This is consistent with the diagnosis stated in the sick leave certificate issued by Dr. Chiang but inconsistent with “fracture of left fourth toe”.

53.  Mr. Fu submitted that Dr. Chiang could not have found that there was fracture because no x-ray was done on the day.  He may or may not be right, but what he could not explain was why there was no mentioning about the Applicant’s left 4^th toe injuries in the sick leave certificate at all.

54.  Mr. Fu further suggested that Dr. Chiang might not be confident enough to put down “fracture” in the sick leave certificate despite the fact that he felt comfortable to tell the Applicant orally about such a diagnosis.  Dr. Chiang had not been called to give evidence and therefore I should not speculate as to why he did not put down “fracture of left 4^th toe”.  It should be borne in mind that the Applicant has the burden to prove her case and it is not right to assume facts in her favour.

55.  Moreover, I have found that the Applicant had encountered two other accidents on 19^th and 20^th October 2008 at Lo Wu Control Point and the MTR station respectively.  Even if there were any “fall” on 20^th October 2008 at around 3pm, I am not satisfied on the balance of probabilities that the injuries stated in the Form 7 were caused by the alleged accident.   

ORDERS

56.  By reasons of the aforesaid, the Applicant’s claim is dismissed. 

57.  There is no reason why costs should not follow the event.  I would therefore make a cost order nisi that the Respondent is to have the costs of the Application, to be taxed if not agreed, with certificate for counsel.

58.  The Applicant’s own costs shall be taxed according to Legal Aid Regulations. 

59.  In the absence of application in 14 days to vary, the costs order shall become absolute.