MAJID ABDUL v. THE INCORPORATED TRUSTEES OF THE ISLAMIC COMMUNITY FUND OF HONG KONG

DCEC 374/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 374 OF 2009

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JUDGMENT

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Background

1.  At all material times the Applicant was employed as a cemetery worker by the Respondent.  The Applicant claims employees' compensation pursuant to Sections 9, 10 and 10A of the Employees' Compensation Ordinance (Cap. 282).  The Applicant alleges that on 29 September 2008 at about 2:00 pm, whilst he was in the course of his employment with the Respondent, he was instructed to dig a Grave (“the Grave”) at the Happy Valley Muslim Cemetery ("the Cemetery"), Hong Kong.  Whilst he was doing so, the wall of the Grave suddenly collapsed and mud fell on his back and his left knee.  As a result of the accident, the Applicant sustained personal injury.

2. The Respondent denies that an accident took place and makes no admission as to the injuries that were allegedly sustained as a result of the alleged accident.

The Issue

3. The only issue is whether the Applicant suffered personal injury in the course of his employment with the Respondent at about 2:00 pm on 29 September 2008 at the Cemetery.

4. There is no dispute between the parties on the issue of quantum.

Dramatis Personae

5. The following persons gave evidence:

The Applicant's witnesses :

(a)    The Applicant : described how the accident occurred

(b)    Mr. Rab Nawaz : he witnessed the accident.

The Respondent's witnesses :

(c)    Mr. Shah Farzand Ali : he was the Manager of the Respondent at the material time and gave instructions to the Applicant to dig the Grave.

(d)    Mr. Hameed Jalal : he was the Chairman of the Trustees of the Respondent giving evidence on the dismissal of the Applicant on 6 October 2008.

(e)    Mr. Jauhar Ali : he worked with the Applicant on that day in digging the Grave.

(f)     Mr. Omar Ackber Mohammad Jr. : he was the nephew of the deceased, whose Grave the Applicant dug.

The witness statements of all the above witnesses were adopted as their evidence-in-chief.

The Applicant's evidence

6. The Applicant was the first to give evidence and stated that along with three other workers, they were assigned to dig the Grave in the morning of 29 September 2008 when they reported to work.  The weather on that day was fine and it was not raining.  At 2:00 pm he was digging the Grave and the wall of the Grave suddenly collapsed.  Mud fell on his back and on his left knee and he sustained personal injuries.  At the time of the accident none of the other three workers were present.

7.  The Grave measured 3 feet by 6 feet and it had to be dug to a depth of 7 to 8 feet.  At the time of the accident the Grave had been dug to a depth of 6 to 7 feet.  Instead of the other three workers, Mr. Nawaz who was a friend of the Applicant was there chatting to him.  According to the Applicant, Mr. Nawaz witnessed the wall of the Grave collapsing and mud falling on him.  Approximately 4 to 5 carts of mud fell on the Applicant.  Mr. Nawaz jumped into the Grave to clear the mud off the Applicant.  Mr. Nawaz then climbed out of the Grave and helped the Applicant out.  Thereafter Mr. Nawaz using the Applicant's mobile phone phoned Mr. Shah who took 10-15 minutes to arrive at the Grave.  Mr. Shah instructed the Applicant to continue digging notwithstanding his injuries and to set the frame up within the Grave for the funeral which eventually took place at 3:05 pm.

8. According to the Applicant, Mr. Shah instructed the Applicant not to report the accident to anyone as this could entail both his dismissal as well as that of the Applicant.  The Applicant was afraid that he would lose his job and did not report the accident.  He further stated that Mr. Nawaz and Mr. Shah then left together before the other workers arrived at the Grave to continue with the digging of the Grave.

9. However, the injuries he sustained as a result of the accident continued to cause him so much pain that he visited the Accident and Emergency Department of Ruttonjee Hospital and Tang Shiu Kin Hospital on 9 October 2008 for medical treatment.  At this juncture it should be noted that this is 3 days after he was dismissed from his employment with the Respondent.

11.   Mr. Nawaz then gave evidence stating that on the day in question he went to the Cemetery to attend the funeral of the deceased although he did not personally know her.  He also went there to chat with the Applicant.  On witnessing the accident, he jumped into the Grave and threw the mud off the Applicant.  He then climbed out of the Grave and pulled the Applicant out.

12.   He then used the Applicant's mobile phone to call Mr. Shah.  He told him that the Applicant was injured and passed the phone to the Applicant.

13.   Mr. Shah then arrived at the Grave and he had a chat with the Applicant.  After that conversation, Mr. Nawaz left.

14.   During cross-examination, the Applicant and Mr. Nawaz were asked to sketch the precise position of the Applicant including his orientation in the Grave at the time of the accident, a point which I shall return to later.

The Respondent's evidence

15.   In the morning of 29 September 2008 Mr Shah instructed the Applicant and another cemetery worker Mr. Rahman Saqib to dig the Grave in question at about 9:00 am that day.  It was the practice of the Respondent that all the cemetery workers worked in pairs and the Applicant worked with Mr. Saqib.  Later at about 9:30 am two other cemetery workers, Messrs. Jauhar Ali and Shafiqueul Haq, were instructed by Mr. Shah to help the Applicant and Mr. Saqib to dig the Grave.  According to Mr. Shah the funeral ceremony started at about 2:00 pm and thereafter the body was placed in the Grave.  The ceremony was over by 3:00 pm on that day.  At the funeral ceremony at the Grave, he met the Applicant and the other three workers and the Applicant did not tell him that he had an accident or was injured.

16.   The Applicant continued to work on 30 September, 2 October, 3 October, 4 October and 6 October and he did not complain of having any injuries from any accident.  Rather, owing to his poor working attitude which dated back to 2007, the Applicant's employment with the Respondent was terminated at 3:30 pm on 6 October 2008.  Even then he did not complain of any personal injury or accident.

17.   Mr. Jalal who was the Chairman of the Trustees of theRespondent then gave evidence and explained how the poor working attitude of the Applicant dated back to 2007 and how the Respondent had set up a special committee to investigate the Applicant's performance.  This culminated in a warning letter being issued to the Applicant on 23 October 2007, nearly one year before the alleged accident.  As there was no improvement on 6 October the Respondent terminated the employment of the Applicant in the presence of Mr Jalal who confirmed that the Applicant did not complain of any injuries then.

18.   The Respondent's third witness was a Mr. Jauhar Ali who was one of the four cemetery workers who was instructed by Mr. Shah to dig the Grave.  On his arrival at the Grave in the morning he saw the Applicant and another cemetery worker, Mr. Rahman Saqib.  He stated that the digging of the Grave finished at about 2:00 pm that day.  The funeral ceremony for the deceased started at about 2:00 pm and was completed at about 3:00 pm.  He gave unequivocal evidence that he did not see any collapse of mud or soil at the Grave during the time he was at the Grave.  Nor did he see any accident occur or happen to the Applicant at the Grave.

19.   The Court has had an opportunity to consider the evidence at hand and at the outset the Court is very critical of witnesses who attempt to deceive the Court.  The Applicant contends that he was injured by reason of the accident which took place on 28 September 2008.  The pain was so excruciating that he was forced to go to the Hospital on 9 October 2008 to seek treatment.  In support, the Applicant relies upon a medical report produced by the Ruttonjee Hospital and Tang Shiu Kin Hospitals dated 15 December 2008.  This is where the first flaw in the Applicant's evidence occurs.  The Hospitals stated in their report that there was "No history of injury".  The Applicant in his application states that he suffered injury to his left knee.  However the medical report stated that the left knee was stable with no effusion and had a full range of movement.  No tenderness or pain was observed at that attendance at all.

20.   According to a further  medical report of an assessment carried out on 11 October 2008 the attending doctor stated that "there was no new neurological deficit of lower limbs.  The range of motion of left knee was full.  There was no swelling of knee ..."   The examination of left knee showed negative signs of bone, cartilage and ligament injury.

21.   On cross-examination he stated that he was squatting down at the time when the mud fell on him but he did not fall.  Not only is this not corrobated by the Applicant's witness, Mr. Rab Nawaz, but the latter's evidence was that the Applicant fell down after he was hit by the mud.

22.   Pausing here to consider further the Applicant's evidence, the Applicant stated that his accident occurred at 2:00 pm and that the funeral ceremony commenced at 3:05 pm.  The Applicant stated that at 2:00 pm they had dug to a depth of 6 to 7 feet out of the required depth of 7 to 8 feet.  In other words there was one further feet of soil to extract.  At the time of the accident 4 or 5 carts of soil fell upon the Applicant into the Grave.  It took Mr. Nawaz  4 or 5 minutes to clear the soil off him and to climb out.  Thereafter he called Mr Shah to the Grave who arrived 10-15 minutes later.  During the time they waited for Mr Shah to arrive, they did not dig any further.  At about 2:30 pm Jauhar Ali and Shafiqueul Haq returned and together with the Applicant they continued to dig the Grave in turn one at a time.  Shortly thereafter Mr. Rahman Saqib also came back to help.  After they finished digging, they put a frame inside the Grave.

23.   Bearing in mind that one required 5 to 10 minutes to set up a frame within the Grave after the digging had been completed, if the funeral started at about 3pm, that left about 20- 25 minutes for the workers to take out the 4 to 5 carts of soil that fell into the Grave in addition to the one further feet they had to dig which was approximately 18 cubic feet.  This was all at the time when only one worker was in the Grave doing the digging.  This becomes even more difficult to believe when the Applicant himself concedes that if the mud was soft it would take one and half hours to dig and the soil was hard it would take a whole day.

24.   With regard to the evidence of  Mr. Nawaz, he contended that he was there to have a chat with the Applicant as well as to attend the funeral of the deceased whose body was to be laid at the Grave.  This was even though he did not know her at all.  I find this latter reason unlikely.  His evidence further contradicts the Applicant's account of the events in that Mr. Nawaz stated that the Applicant shouted out for help at the time of the accident whereas the Applicant's evidence was that he did not shout out for help because Mr. Nawaz was sitting there next to him and was immediately at hand to help.

25.   Under cross-examination, Miss Kwok for the Respondent quite cleverly asked the Applicant and Mr. Nawaz to draw a sketch as to where the Respondent was positioned and orientated inside the Grave at the time of the accident.  These are reproduced below :-

26.   In fact when cross-examined, Mr. Nawaz despite having been to the cemetery many times in the past was not able to identify which side of the Grave abutted the terrace wall of the Cemetery.

27.   The Applicant stated that he was in a lot of pain after the accident.  He had difficulty  bending his back; he could not walk fast and it affected his sleep.  He was however able to go to work the following day on 30 September, 3, 4 and 6 October 2008.  He did not complain about pain or the occurrence of the accident to the Respondent.  If the Applicant

        was in such pain, I find it inconceivable that he can report to work as a cemetery worker which involves hard manual labour, without complaining of the pain that he was suffering.

28.   For Mr. Nawaz, he made only a fleeting appearance in the course of events and promptly left the scene of the accident without being seen by anyone other than the Applicant and Mr Shah. Mr. Shah denies having seen Mr. Nawaz.  On the basis of the evidence available and on the basis of the foregoing I do not accept his evidence and I find that Mr. Nawaz was not at the Cemetery as he contended.

29.   There is a further factual error on the account of the events in that the Applicant's evidence is that the ceremony took place at about 3:05 pm.  The Respondent further called Mr. Omar who is a practising barrister as well as an independent witness to this whole course of events.  He is not in the employ of the Respondent.  He was the nephew of the deceased who was to be buried at the Grave.  He gave evidence that the funeral ceremony took place at 2:00 pm and that at approximately 1:30 pm to 1:45 pm he visited the Grave and noted that there was no one working there which contradicts the Applicant's version of events.  Mr. Omar gave evidence in a honest and fair fashion and was unbiased.  I accept his evidence as I accept the evidence of Messrs Jalal, Shah and Ali.

30.   On the basis of the foregoing in determining whether an accident did occur on 29 September 2008 at about 2:00 pm at the Grave, I am satisfied that the Applicant’s account is wholly unbelievable and no such accident took place as alleged by the Applicant.  As I have ruled that no accident occurred, the issue of employee compensation does not arise and I therefore need not deal with the issue of quantum.

31.   On the question of costs, the Court is very disturbed that the Applicant has seen it fit to commence the present proceedings against the Respondent and his attempt to concoct a version of events which is devoid of any truth or factual basis.  The Court takes a very dim view of the totally unacceptable conduct of the Applicant in the present proceedings.  Resources have been expended by the Respondent which otherwise could have been saved.  The Court therefore makes an order nisi that the Applicant does pay the Respondent's costs on an indemnity basis with Certificate for Counseland that interest on the costs does run at 10% above the Judgment Rate.

Representations: