TSE SIN YEE v. WING WAH CAKE SHOP LTD

DCEC 251/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 251 OF 2008

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J U D G M E N T

1.  Tse, the Applicant, claims that she suffered injuries while working as a shop assistant for Wing Wah, the Respondent, on 2 occasions in April and August 2006 respectively.  Pursuant to the Employees’ Compensation Ordinance, she filed separate applications for compensation in respect of the alleged accidents, namely, DCEC 250/2008 and the present Application respectively.

2.  Prior to the assessment of her condition by the Employees’ Compensation (Ordinary Assessment) Board (“the MAB”), Tse accepted the sanctioned payment made by Wing Wah in respect of DCEC 250/2008.  That left the present Application to be tried.  Both liability and quantum are in dispute.

Background

3.  Wing Wah is a well-known bakery in Hong Kong.  It operates a chain of cake shops, selling various kinds of pastries and cakes as well as drinks, all over Hong Kong.  Tse had previously worked for Wing Wah in 2004 to 2005.  In September 2005, Tse rejoined Wing Wah.  In November 2005, Tse was assigned to work at Shop 11 of the Tsimshatsui East MTR Station (“the Shop”).

4.  The Shop consists of a shop front open to the customers and an enclosed storeroom at the back.  Staff members could enter the storeroom through a door.  At the material time, Tse and Lam Hei Ying (“Lam”) were shop assistants of the Shop under a shop manager, Wu Chau Mei (“Wu”), and an assistant shop manager, Leung Yee Shan (“Leung”).  Leung took over Wu’s position when Wu left Wing Wah in 2009.

5.  The 1^st accident happened to Tse at the Shop in the morning of 16 April 2006 (“the 1^st accident”).  According to the Application filed in DCEC 250/2008, this allegedly happened “in the course of her lifting boxes of cakes from the floor onto the trolley for the purpose of transporting into the …… electrical warming cabinet”.  As a result, Tse suffered from “back sprain resulting in lower back pain, right thigh sprain, lower limb pain, psychiatric injuries including but not limited to panic disorder and depression.”

6.  Later that day, a colleague accompanied Tse to the hospital.  Tse was discharged with medication and sick leave.  In early May 2006, Tse went to the hospital again, complaining about persistent back pain.  She was discharged with medication and sick leave for another week.  She resumed working after the sick leave has expired.

7.  The 2^nd accident allegedly happened in the Shop in the afternoon of 30 August 2006 (“the 2^nd alleged accident”).  According to the present Application, when she was “instructed to take out the Chinese cakes from the storeroom at …… the Shop …… for the purpose filling the warming cabinet, she felt severe pain at her waist”.  The nature of injuries as a result of the 2^nd accident, according to the present Application, is identical to that as a result of the 1^st accident recited above.

8.  The stance of Wing Wah is that the 1^st accident did not happen the way Tse described; and the 2^nd alleged accident never happened at all.

How the 1^st accident happened

9.  Wing Wah called Lam, the other shop assistant, to testify with regard to how the 1^st accident happened on 16 April 2006.  According to Lam, she saw Tse push a stack of plastic trays on a trolley into the storeroom.  A moment later, Tse came out of the storeroom.  Tse uttered a foul word, complaining that she hurt her leg inside the storeroom.  Lam then overheard that Tse telephoned Wu about this.  Later that day, a colleague from another shop came to accompany Tse to see the doctor.

10.  At all material times, Lau Yat Ming (“Lau”) was the superior of Wu and Leung; and oversaw the operation of a number of shops including the Shop.  According to him, when Wu received the telephone call from Tse about the 1^st accident, he was in fact next to Wu at another shop.  Wu informed him of the same.  The staff member was arranged to go to accompany Tse to go to the hospital.  The attendance at the hospital was documented in the hospital record.

11.  I do not doubt that the 1^st accident happened.  But did the accident happen the way Tse alleged?  Lam did not actually witness how the accident happened.  But her evidence of Tse’s complaint about the accident to her on 16 April 2006 contradicts Tse’s version.  Notwithstanding Mr Kwok’s attack on her credibility, Lam impressed me as telling the truth.

12.  Having said that, I think that whether the 1^st accident the way Tse alleged or the way that she told Lam is immaterial to Tse’s entitlement to compensation as long as this arose in the out of the course of the work.  Now the claim for such compensation has effectively been settled.  The difference between the parties in this respect is probably only relevant to general credibility.

Whether the 2^nd alleged accident happened

13.  Except for Wu, the staff members working at the Shop at the material time gave evidence.  Lau was also present at the Shop at the time.  He also testified.

14.  It is common ground that in the morning of 30 August 2006, Tse and Wu had to attend a workshop organised by the company at Yuen Long.  They did not return until the afternoon.  The dispute lies in when they returned to the Shop and what happened afterwards.

Tse’s case

15.  According to Tse, she returned to the Shop at about 3 pm.  Lau was there and asked to talk to her together with both Wu and Leung in the storeroom.  During the meeting, Lau asked her about the progress of her claim for compensation in respect of the 1^st accident.   Lau gave her a verbal warning in relation to the shoes and the bracelet Tse wore at work.  After the meeting, Tse left for the lavatory before resuming work at the Shop.

16.  In the course of work afterwards, Tse took out 2 to 3 plastic trays of about 80 cakes from the storeroom.  To enable her to refill the cake heaters conveniently, Tse, half kneeling and half squatting on the floor, lifted the trays of cakes intending to put them on the stack of shopper’s baskets.  In the course of that, she sprained her waist and thigh, like how she was injured in the 1^st accident 4 months ago.

17.  However Tse did not stop working.  She feared that she might lose her job if she complained about injury at work right after the verbal warning.  After work, she felt increasing pain at her waist.  The pain was so excruciating that she had to move slowly. She had to take 2 hours to get home, which was double the time she normally took.

18.  Tse went to the hospital at about 9:30 pm that night.  At about 11:00 pm, she reported to Leung on the telephone that she sprained her waist at work that afternoon; and that she had seen the doctor and had been granted sick leave.

Wing Wah’s case

19.  According to Lau and Leung, Tse and Wu did not return to the Shop that afternoon until after 4 pm.  Lau did ask to see Tse with Wu, but not Leung.  Instead, Leung, who was then inside the storeroom, was asked to leave the room.

20.  During the meeting, Lau did give Tse a verbal warning.  This was brought about by Wu’s earlier report about the shoes and bracelet that Tse wore to work.  There was no discussion of Tse’s claim for compensation in respect the 1^st accident.  Lau did however explain the proper circumstances under which Tse would be entitled to pay leave.  After the meeting, Lau walked out of the storeroom.  He eventually left the Shop at 4:51 pm.

21.  According to Leung, Tse was upset by the verbal warning.  Wu apparently stayed behind with Tse for a while in the room.  After coming out of the room, Tse left the Shop for the lavatory.  Tse was not seen returning to resume work.  This was approaching the end of her shift that afternoon anyway.  Leung saw Tse chat with the shop assistant at the ‘Panasonic’ shop opposite the Shop.  Tse later clocked out for the day at 5:09 pm.

22.  Leung confirmed that Tse telephoned her that night.  But it was at about 7:00 pm, not 11:00 pm as Tse said.  Tse simply claimed to be unwell and said she would not be reporting duty on the following day.  Leung was not surprised, as Tse had done similar thing before.  No mention was made about any injury at work earlier on that day.

23.  According to Lau, he came to know about Tse’s complaint about the 2^nd alleged accident only in August 2007 when the Human Resources Department of the company asked him for verification of the complaint.

Evaluation of the evidence

24.  According to Lau, he had waited at the Shop in the afternoon of 30 August 2006 with a view to administering the verbal warning to Tse.  Therefore Lau asked to see Tse and Wu upon their arrival.

25.  Wing Wah has produced the timecards that recorded the time when the staff members arrived at work and left work that day.  The timecards recorded, among others, the following entries in the afternoon:

(1) Tse and Wu arrived at 4:18 pm.

(2) Lau clocked out at 4:51 pm.

(3) Leung clocked in at 5:03 pm.

(4) Tse clocked out at 5:09pm.

(5) Wu and Leung clocked out at 10:01 pm.

26.  The time was supposed to be recorded by the machine when the staff member clocked in and out by inserting the card into the machine.  It is common ground that the entries of the time 16:18 (or 4:18 pm) on the timecards of Wu and Tse were written by hand.  Both Tse and Wu apparently forgot to clock in when they returned to the Shop that afternoon.  Tse confirmed that in court.

27.  When Wu and Tse returned to the Shop, Leung was having her break inside the storeroom.  In court, Tse agreed that this was Leung’s break time.  Leung did not clock in again until later at 5:03.  According to Leung, when she clocked in again, she also filled in the time 16:18 in the timecards of Wu and Tse for them.  As the assistant shop manager, Leung said she had the authority to do so for the shop assistants and also for Wu, the shop manager, if necessary.

28.  Leung’s evidence of when she made these entries on the timecards of Wu and Tse was under heavy scrutiny by Mr Kwok.  But Mr Kwok conceded that he was not in a position to put forward a positive case that the entries were in fact made after 30 August 2006.

29.  The entries might be inaccurate.  But I doubt that the margin of error, in the absence of fabrication, would be as wide as an hour or even more.  Wu and Tse should have noticed the inaccuracies when they clocked out later that day or when Wu clocked in on the following days.

30.  Lau asked Leung to come out of the storeroom so that he could talk to Tse in the presence of Wu.  There was reason why Lau had to ask Leung to do so.  If the three of them were inside the storeroom, Lau had to ensure that Leung would take care of the shop front.  In this regard, Tse said that there was another male shop assistant who could take care of the shop front while the four of them were inside the storeroom.  But her evidence is contradicted by the timecards that show that the only male shop assistant of the Shop was not on duty that afternoon.  Leung could not be present at the meeting in the storeroom as Tse alleged

31.  According to Lau, the meeting in the storeroom took about 10 minutes.  He then left the room.  A few minutes later, Tse and Wu also came out of the room.  He then entered the room to get changed, clocked out and left the Shop. The timecard shows that Lau clocked out at 4:51.

32.  In my view, the likelihood of fabrication of the time on the timecards of Wu and Tse for the purpose of these proceedings is minimal.  On balance, I find that the time frame of the events in the afternoon of the day in question is more in line with what the witnesses for Wing Wah said.

33.  If Tse had reported to Leung at the very night about the 2^nd alleged accident, there would have been no reason for Leung to withhold such information from Wing Wah.  Had Wing Wah been informed of the 2^nd alleged accident, it could have filed Form 2 in respect of that.  They have done so in respect of the 1^st accident.

34.  The fact was that Tse chose to file a notice of the 2^nd alleged accident with the Labour Department on 10 April 2008, some one and a half years later.  In its reply to the Department dated 23 April 2006, Wing Wah stated that it had not received any report of the 2^nd alleged accident until Tse’s letter of claim in August 2007.  Within a week, Wing Wah filed a Form 2.  Unlike the 1^st accident, in this Form 2, Wing Wah gave no description of accident and denied an alleged accident in the course of work on 30 August 2006.

35.  Tse’s letter of claim mentioned above was sent by her previous solicitors.  In that letter, it was stated that in fear of losing her job, Tse did not inform the shop supervisor of the 2^nd alleged accident.  After work, she went to the hospital for treatment.  There was no mention in that letter that Tse had informed Leung of the 2^nd alleged accident at about 11:00 pm that night.

36.  Tse filed the present Application in February 2008.  It was also stated that no notice of accident has been given to Wing Wah.  This was again explained by reference to her fear of losing her job especially after the warning that she received on 30 August 2006.  Notwithstanding the amendment of the Application in June 2008 by Tse’s present solicitors, this part of the Application remained intact.

37.  The fact was that since 30 August 2006, Tse has not returned to work until November 2008.  It was in her witness statement filed in October 2009 did Tse mention for the first time that she had informed Leung of the 2^nd alleged accident at the night of 30 August 2006.  It was only during this trial did she seek to further amend the Application to state that notice of accident had allegedly been so given.

38.  In my view, the contemporaneous documents suggest that Wing Wah had not been informed of the 2^nd alleged accident until August 2007.  This was consistently Wing Wah’s position.

39.  The hospital records, as a whole, do not lend much assistance to establishing the 2^nd alleged accident either.  The hospital’s attendance record on 30 August 2006 recorded that Tse attended the Accident and Emergency Department at 9:48 pm.  The triage notes recorded “back injury in April (IOD)” (presumably meaning injury on duty) and “[increased] pain [last] few days”.  There was also record of “IOD with back sprain 4.06” and “recurrence of LBP since 26.8.06 evening after heavy duty on that day.  Next day paresthesia.  No sphincter abnormality”.

40.  Subsequently in the corresponding hospital report dated 3 February 2009, the box in the report form designated for the report of injuries allegedly sustained “while on duty” was left blank.  Instead, the record was “Background: claimed history of injury on duty in April ‘06”.  This was followed by the medical findings that included “recurrence of low back pain on 26.8.06”.

41.  In other words, there was no record of complaint by Tse to the hospital about an accident or episode of pain at work on 30 August 2006.  In her statement, Tse explained that she was in low mood and did not explain much to the doctor attending her on 30 August 2006.  But I do not see how this could explain the hospital’s record of the complaint about recurrence of pain for a few days since 26 August 2006.  This positive complaint could only have come from Tse.

42.  Tse was examined in January 2009 by Dr Johnson Lam, expert engaged on her behalf, and Dr David Cheng, expert engaged on behalf of Wing Wah.  In their joint report dated June 2009, the experts agree “there was probably stress and strain and fatigue at that particular time.  If there was an injury to the back, it was probably a simply mild sprain.”  This is far from the kind of comment one would expect the experts to make to confirm whether their findings are compatible with the mechanism of the injury as a result of a particular injury on 30 August 2006.

43.  In her statement, Tse explained that it was again due to her low mood that might have caused her to fail to give to the experts a full and accurate account of how the 2^nd alleged accident happened.  She also criticised Dr Cheng for his allegedly unfriendly and interrogative attitude towards her.

44.  Seeing the witnesses testify and considering the totality of the evidence, on balance, I find that Wing Wah’s witnesses are credible but I cannot say the same about Tse.  I do not accept Tse’s evidence that the 2^nd alleged accident happened at all on 30 August 2006.  Failing to prove an accident arose in and out of the course of her work as alleged, Tse’s claim for compensation must fail.

Quantum

45.  For completeness, I proceed to consider the quantum of compensation, assuming that liability is established.  In saying that, I notice that notwithstanding Tse’s complaint about the same symptoms on 30 August 2006 as those after the 1^st accident, the orthopaedic experts opined: “There was not trauma of any kind.  We agree that there was probably a recurrence of symptoms, rather than another period of injury.”

46.  Strictly, one wonders whether a recurrence of symptoms (in the form of stress, strain and fatigue) in the absence of another episode of injury during work amounts to a cause for claiming compensation under section 5 of the Ordinance.  Mr Kwok suggested that it does, if there was aggravation of the condition due to work.

Form 7

47.  In respect of her alleged injuries as a result of both alleged accidents, the Employees’ Compensation (Ordinary Assessment) Board (“MAB”) examined Tse on 9 September 2009.  The MAB issued the Form 7 in respect of the two alleged accidents respectively both on 23 September 2009.

48.  The Form 7 issued in respect of the 1^st accident recorded the injury to be “back and right thigh injury” but attributed no permanent loss of earning capacity as a result.  The Form7 issued in respect of the 2^nd alleged accident recorded the injury to be “back injury resulting in low back pain and psychiatric impairment”.  This resulted in 6% permanent loss of earning capacity.

49.  The two Form 7 issued in the circumstances of the present case are curious in a number of ways.  First, psychiatric impairment was attributed to the injury from the 2^nd alleged accident only.  This contradicts even Tse’s own case.  Second, the MAB appeared to conclude that there was no permanent loss of earning capacity due to the injury as a result of the 1^st alleged accident.  Third, in attributing 0% permanent loss of earning capacity due to the injury suffered first, the MAB explained that it has taken into consideration the loss of earning capacity due to the injury suffered subsequently.  In a case of successive injuries, I would have expected the other way round.

50.  In any event, Wing Wah is appealing against the MAB assessments pursuant to section 18 of the Ordinance.  I shall consider the medical evidence and the medical expert opinion on the impact of the two alleged accidents.

Orthopaedic aspect

51.  As mentioned above, Tse criticised Dr Cheng’s manner towards her.  But that was an examination conducted jointly by the experts engaged on behalf of the parties.  More importantly, the experts actually agreed on the following:

(1) Physically, there was nothing significantly wrong with Tse.  There were little positive objective signs to suggest any pathology of the back.  X-rays were normal.  Recent MRI showed no compression of thercal sac or nerve roots.  Tse complained about residual pain.  The complaint about general fatigue was fairly non-specific.

(2) Viewing the surveillance video recording, which was also made available during the trial, the experts observed no expression of pain or discomfort of the back or limbs and appeared to be entirely normal.

(3) If Tse indeed sustained any injury, the injury was mild.  For that, Tse has reached maximal medical improvement.  The prognosis was good.  She could get better.  There might be occasional fatigue or back discomfort, but no orthopaedic treatment was necessary.

(4) Tse could resume the pre-accident job physically.  It was possible that squatting for long time or prolonged standing might cause discomfort and fatigue and there might be some slight reduction in efficiency.

(5) For the above, the experts suggested the loss of earning capacity would be 1-2%.

Psychiatric aspect

52.  Tse has a history of panic disorder with agoraphobia dated back in 2000 or 2001.  She displayed anxiety problem and was believed to be under pressure due to the termination of pregnancy operation at the age of about 18 in 1999.

53.  While Tse’s psychiatric symptoms had been stabilised afterwards, she maintained attendance at the outpatient clinic once every 4 months up to the accident in 2006.  She took anti-depressant and anti-anxiety drug on a need basis.

54.  In April 2009, Tse was examined by Dr Chung See Yuen and Dr Peter Ho Pang Nin, the psychiatric experts engaged on behalf of Tse and Wing Wah respectively.  The psychiatric experts produced their joint report dated 7 July 2009.

55.  The report recorded Tse’s complaint about relapse of her mental problems after the 1^st accident in May or June 2006.  Her medication was increased.  Psychiatric treatment was resumed.

56.  Dr Chung expressed the following opinion:

(1) Tse’s pre-existing mental disorder was largely in remission at the time of the 1^st accident.  But she was vulnerable to the development of emotional disturbance triggered by stressors.

(2) After the 1^st accident, there was an exacerbation of her adjustment disorder.  This was caused by stressors of the physical symptoms, the problematic relationship with her colleagues and the litigation.

(3) The present complaint was compatible with adjustment disorder with anxiety and depressive mood.  This was mainly caused by the 1^st accident and would have continued even in the absence of the 2^nd alleged accident.  The 2^nd alleged accident has only aggravated the problems.

(4) Tse’s mental problems were now in partial remission.  The impairment would be mild.  She would be mentally fit to perform all activities of daily life.  There would be no need to avoid activites of any kind.  She was mentally fit to resume her pre-accident job.  The adverse effect of the mental problems on her work efficiency would be mild.  Choice of jobs would not be limited.

(5) The sick leave given was reasonable.  Further psychological and drug treatment for the mental problems was recommended for another year in the public sector.

57.  Dr Ho differed from Dr Chung in the following respects:

(1) Dr Ho suspected, but Dr Chung disagreed, that there was a tendency on Tse’s part to portrait a worse clinical picture than what was real.  Nonetheless, Dr Ho was prepared to give Tse the benefit of doubt that she has had some genuine mental symptoms after the 1^st accident.  The intensity was then mild; and now mild to very mild.

(2) Dr Chung considered that the sick leave given by the treating psychiatrist was appropriate, i.e., about 3 months in 2006 and 8 months in 2008.  Dr Ho suggested 4 to 5 months during the more intense phase of her mental problem since the 1^st accident.

58.  Except for the above, Dr Ho largely concurred with Dr Chung.

The section 18 appeal

59.  I think the following should be clear:

(1) The psychiatric experts believed that Tse’s mental problems were mainly precipitated by the 1^st accident.  The MAB assessment that the 1^st accident did not result in any psychiatric problems of Tse cannot stand.

(2) What Tse experienced in the 2^nd alleged accident was a recurrence of the orthopaedic symptoms or at most a very mild sprain.  Her mental problems were mainly precipitated by the 1^st accident.  In the circumstances, attributing 0% loss of earning capacity cannot be correct.

(3) The present loss of earning capacity from the orthopaedic perspective is 1-2%.  The effect of the mental problems is at the present mild to very mild with no limitation on the choice of jobs.  Therefore, even assuming that 6% was meant by MAB to be the cumulative permanent loss of earning capacity of Tse after both accidents, the assessment was on the high side.

(4) In any event, the percentage loss of earning capacity attributable to the 2^nd alleged accident should be relatively less than that attributable to the 1^st accident.

60.  Mr Kwok submitted that no apportionment of compensation is allowed on the account of pre-existing disease or condition of the employee.  The final court in LKK Trans Ltd v Wong Hoi Chung, FACV 14/2005 (27 February 2006) set out the relevant legal principles.  This is true.  But I think it is wrong to describe the condition of Tse as a result of the 1^st accident as a pre-existing condition the same way as it was meant in the LKK Trans Ltd case.

61.  Tse chose to file separate applications for compensation in respect of her injuries as a result of the 1^st accident and the 2^nd alleged accident.  They were not consolidated for determination of the compensation payable for the resultant total loss.  She accepted the sanctioned payment in settlement of her claim in respect of the 1^st accident.  For the purpose of assessing the compensation in respect of the 2^nd alleged accident, only the loss as a result of the injuries due to this accident should and could be taken into account.

62.  Considering the above, I would have allowed Wing Wah’s appeal against the MAB assessments.  Insofar as the permanent loss of earning capacity attributable to the 2^nd alleged accident is concerned, I would not have accepted anything more than 2-3%.

Calculation

63.  During the trial, it was agreed that Tse’ pre-accident monthly income was HK$6,800.

Under section 9

64.    I apply 2.5% loss of earning capacity for calculation.  Tse was 23 years old at time of the 2^nd alleged accident.  Compensation under section 9 would have been HK$6,800 x 96 x 2.5% = HK$16,320.

Under section 10

65.  Tse has received advanced payments up to March 2008.  Mr Kwok confined the claim under this section to another 5 months in the sum of HK$27,200.  This would be the most that Tse could have obtained.

Under section 10A

66.  Medical expenses were agreed at the sum of HK$5,675.

Summary

67.  The compensation in the present Application, if succeeded on liability, would have been HK$(16,320 +  27,200  + 5,675) = HK$49,195.

68.  Interest would have accrued on the compensation amount at half judgment rate from the date of the 2^nd alleged accident to today and thereafter at the judgment rate until full payment.

Order

69.  The present Application is dismissed.  I make a nisi order that Tse shall pay the costs of Wing Wah; such costs to be taxed, if not agreed.  Mr Kwok indicated that he was instructed not to ask for certificate for counsel, if his client succeeds.  On the other hand, if she fails, his instruction would be to object to certificate for counsel for Wing Wah.  I see no justification for such contingent position.  I therefore certify the engagement of counsel.  Tse’s own costs shall be taxed in accordance with legal aid regulations.  In the absence of application within 14 days for variation, this nisi order shall become absolute.