MOHAMMAD NOME v. MOK TAK FAI AND ANOTHER

DCEC 66/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 66 OF 2004

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D E C I S I O N

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Introduction

1. The applicant says that he sustained personal injury by accident arising out of and in the course of the employment by the Respondent.  The Respondent says that the applicant had resigned and terminated the employment before the accident, if any.  The Respondent also disputes the quantum of compensation, if any. 

The applicant’s case

2. The applicant and his wife, Cheng Siu Suen, give evidence. 

3. He wants to call Dr. Danny Tsoi as well.  He has not asked Dr. Danny Tsoi to come, though.  The present trial was listed for 6 days.  On the second day, the applicant makes an application for a subpoena on Dr. Danny Tsoi, an orthopaedic specialist who prepared his medical report.  He managed to speak to Dr. Danny Tsoi’s staff in the morning before his present application.  Dr. Danny Tsoi would only come on a subpoena because he had already fixed appointments for patients.  I reckon that taking the 4 clear days for the subpoena to be effective will bring us beyond the 6 days allotted.  Besides, I see no reason to abridge the time.  The highest that Dr. Danny Tsoi can say for the applicant is a higher percentage of permanent loss of earning capacity.  In the medical report, Dr. Danny Tsoi estimated it to be 3% whereas the assessment board estimated it to be 2%.  The difference in monetary value was HK$4,320.  It is not substantial.  I refuse his application. 

4. On 17 January 2002, the applicant came to the shop.  He was interviewed by the female boss, Chan Lai Fong (or known as Mrs. Mok), for the post of odd job worker.  He had to move garments in carton boxes.  They weighed 40 – 60 kgs.  The working hours were 10a.m. – 8p.m.  There were 24 – 26 working days per month.  He asked for HK$7,500.00 but she said it would only be HK$6,000.00.  They agreed that after a few days of work they would discuss his pay again. 

5. He worked in the shop on 18, 19, 21, and 22 January 2002.  The shop did not operate on 20 January 2002, a Sunday. 

6. At about 6p.m. on 22 January 2002, he was walking down the stairs from the garret to the ground floor with a carton box containing garments in his hands.  There were 2 flights of stairs with a landing in between.  The 2 flights were in an L-shape.  He slipped on the dirty and slippery upper flight of stairs.  He injured his left elbow and left side.  The box with its contents came to a rest on the landing.  He told a lady colleague, not the bosses, that he had slipped and injured his elbow.  There were altogether 3 – 4 ladies working in the shop.  Mrs. Mok was not in.  He would not tell her because he feared that he would be dismissed even for a minor injury.  He could not continue to work.  He just sat there.  He asked somebody, not Mrs. Mok, who seemed to be in authority to allow him to leave early.  He was allowed to leave early.  It was not yet 8p.m.  

7. After 4 – 5 hours, at the early hours of 23 January 2002, his injuries caused him great pain.  He could not sleep.  As he anticipated a long wait, maybe for several hours, at the hospital, he rather endured the pain until later in the day.  At 10a.m. odd, Mrs. Mok phoned to ask why he did not go to work.  His wife told Mrs. Mok that he was injured whilst at work in the shop the previous evening (i.e., 22 January 2002); that he would be unable to go to work that day (i.e., 23 January 2002).  Mrs. Mok told his wife that he did not have to go to work as she had already hired a substitute. 

8. After the telephone conversation, the Applicant and his wife went to the Kwong Wah Hospital for medical treatment.  He was examined by Dr. Tsoi Yat Sang, who subsequently wrote a medical report [p. 50].  Later in the day, he went to the shop to see if he could retain the job but to no avail.

9. On 28 January 2002, he went to the shop to ask for 5 days’ pay (i.e., 18, 19, 20, 21, 22 January 2002).  He included in 20 January 2002 although it was a Sunday and the shop was not operating.  Mrs. Mok only gave him 4 days’ pay.  He signed in receipt [p. 155] of the sum of $800 (i.e., $200 x 4) and left. 

10. He was given sick leave certificates for the period of 11 February – 15 May 2002.  After 12 May 2002, no one asked him, nor did he feel the need, to go for medical treatment.  His own doctor, Dr. Danny Tsoi, examined him on 30 July 2005 and wrote a report on 2 August 2005.  According to Dr. Danny Tsoi, he had only 2 episodes of attacks of left elbow pain [p. 54].  In the connection, he had sought treatment from A & E department of Queen Elizabeth Hospital in September 2004 and January 2005.   

11. He told Dr. Danny Tsoi of his current problems as follows [p. 55]:

(1)  There is left elbow pain even at rest.  The pain cannot be relieved by oral analgesics;

(2)  The left elbow is more painful on mornings;

(3)  Exposed to cold weather will aggravate left elbow pain;

(4)  He cannot lift up objects of more than 5 to 7 kgs with his left upper limb.

Dr. Danny Tsoi diagnosed that “the current left elbow condition is satisfactory and no major significant disability was detected.  [His] left elbow condition has reached a stage of maximal medical improvement and no further treatment is required.  The overall prognosis is excellent and development of complication is not expected.”

12. In Court, he says that since the accident he has not used his left arm for any tasks.  He has been using only his right arm since then.  His left elbow is still painful now.    

The respondent’s case

13. Mr. Mok Fai Tai, Mrs. Mok, Chan Mei Betty, Chan Wa Mui, and Mr. Chan Pak Ping give evidence respectively.  

14. Mr. Mok and Mr. Chan were the 2 official partners of the shop.  The former usually went to Mainland China on business on Mondays and Tuesdays.  Mrs. Mok was Mr. Mok’s wife.  She took charge of the daily operation of the shop. 

15. On 17 January 2002, Mr. Mok interviewed him.  It was agreed that he would start working the following day.  The working hours would be 10a.m. – 8p.m.  After a few days, the wages would be discussed.  

16. On 18 and 19 January 2002, he came to work.  On 20 January 2002 Sunday, the shop did not operate and he did not come to work.   

17. On the morning of 22 January 2002, his wife phoned Mrs. Mok.  She told Mrs. Mok that he had fallen down and injured at work in the shop the previous day (i.e., 21 January 2002).  He was unable to come to work that day (i.e., 22 January 2002).  Mrs. Mok found it strange because he had already resigned on the evening of 21 January 2002 upon knowing that his wages would only be $6,000.00, not $7,500.00 as requested by him.  He had left in discontent and not signed out for 21 January 2002.  Mrs. Mok, Chan Mei Betty, and Chan Wa Mui recall that they had not seen or heard that he had fallen down or injured in the shop on 18, 19, and 21 January 2002. 

18. On 24 January 2002, he and his wife went to the shop to have the notice of accident to an employee filled out so that he could get compensation.  The bosses would not cooperate unless he gave them 50% of the claim.   

19. On 28 January 2002, he came to get his pay.  Mr. Chan was in the shop.  From the attendance record [p. 155], he had signed in and out for 18, 19 January 2002.  He had signed in, but not out, for 21 January 2002.  He had worked those 3 days.  He insisted on having the pay for an extra day (i.e., 20 January 2002 Sunday).  As he was arguing it in the presence of customers, Mr. Chan made him leave as soon as possible by giving the 4 days’ pay of $800 (i.e., HK$6,000,00 x 1/30 x 4). 

20. Later, the Labour Department phoned Mr. Mok for the insurance policy covering the applicant’s injuries and a completed notice of accident to an employee.  Mr. Mok produced the insurance policy, which fully covered the applicant’s injuries.  He maintained that the applicant had already resigned on the date of the accident.  He did not admit to be the applicant’s employer at the time of the accident.  He did not fill out the notice.  He only affixed his company chop on the notice.   

21. In 2004, he received a summons from the High Court.  He was scared.  He went to the Labour Department again for advice.  The staff told him that he was summonsed because he had not filled out the notice.  If he did so, the insurance company would be made responsible.  He therefore filled out the notice [p. 145 – 151].     

Closing submissions

22. Both the applicant and the respondent’s counsel make full written submissions.  The applicant has a short supplemental oral submission. 

My Findings

On the applicant’s evidence

23. The applicant gives different versions as to whether he had told anyone in the shop on the same evening of his accident and injuries.  He first confirms, according to his statement [para 10 p. 78], that he told his colleague that he had slipped and hurt his elbow.  In Court, he says that he did not tell anyone about the slip for fear of being dismissed.  He later says that he did tell his colleague but not his boss for fear of being dismissed even for a minor injury.  He then says that he did not tell anyone about the slip but just a minor pain which rendered him unfit to lift a carton box with contents.  He regards that all versions are the same and as truthful.  I accept counsel’s submission that there was no reason for him to conceal his accident or injuries from anyone or his boss.  There was no reason that the colleague, which he is unable to identify, who had asked him to work but refused by him, would just let him sit there upon his complaint of a minor pain without asking him the cause or the condition of the pain.  I find him making up evidence.   

24. He confirms, according to his written statement [para 10 p. 78], that after the accident, he could not continue to work.  Upon being asked in Court how he then got the carton box of garments, which was heavy and resting on the landing, to the ground floor, he explains that he kicked it down the remaining distance instead of lifting it up.  I see no reason why he had not kicked it down at the outset but instead lifted it up in his hands.  Kicking it down was definitely more efficient and less straining.  I find him making up evidence.     

25. He confirms, according to his written statement [para 8 p. 77], that after the accident at 6p.m., he continued to work as best as he could until about 7p.m. [para 10 p. 78].  However, he says in Court that he could not continue to work after the accident.  He just sat there for an hour.  When asked about the inconsistency, he explains that it was a mistake made by his solicitor or interpreter.  I do not find this logical because he has just confirmed in Court the accuracy of this part in his written statement.  I find him making up evidence. 

26. He confirms, according to his written statement [para 10 p. 78], that on 23 January 2002 over the phone his wife simply told Mrs. Mok of his injuries of the previous evening (i.e., 22 January 2002).  He says in Court that in the same conversation Mrs. Mok told his wife that firstly he was dismissed and secondly a substitute had been hired.  He explains that although these were important aspects of evidence, he had not paid attention to the omission from his written statement.  I find him making up evidence.     

27. He confirms, according to his written statement [para 14 p. 79], that on 28 January 2002 he went to the shop to ask for 5 days’ pay (i.e., 18, 19, 20, 21, and 22 January 2002).  He could only get 4 days’ pay (i.e., 18, 19, 20, and 21 January 2002).  He signed in receipt of 4 days’ pay and left.  He did not himself mark, or ask to be marked, on the receipt that 1 day’s pay was outstanding.  I find him making up evidence.     

28. He alleges of continual pain over his left elbow even today.  Despite that, he had not attended follow-up medical appointments (such as 6 May 2002) at Kwong Wah Hospital [p. 48].  He had not sought seek treatment from anywhere else, either.  He explains in Court that no one asked him, nor did he feel the need, to do so.  Throughout the period of 15 May 2002 (i.e., the last day of his sick leave) – 2 August 2005 (i.e., the date of Dr. Danny Tsoi’s medical report), he had only sought treatment on 2 occasions.   I find this bizarre as he is complaining of continual pain even to-day.  I find him making up evidence. 

29. On at the date of examination (i.e., 30 July 2005), he had already reached a stage of maximal clinical improvement [para 7 p. 58]. He told Dr. Danny Tsoi that he could not lift up objects of more than 7 kgs with his left upper limb [p. 55].  I find it consistent with the medical findings at the Department of Orthopaedic & Traumatology at the Kwong Wah Hospital [p. 47].  As at 23 January 2002, He was diagnosed as having equal strength in all parts of his right arm and left arm.    

30. He also told Dr. Danny Tsoi that he could not lift up objects of more than 5 – 7 kgs with his left upper limb [p. 55].  However, Dr. Danny Tsoi diagnosed that he regarded him fit to handle objects of 20 kgs with his left upper limb. 

31. He complains that owing to the pain of his left elbow resulting from after the accident, he has become unable to use his left arm.  He was and is a right handed person.  Dr. Danny Tsoi’s findings were that his left arm girth was 24cm, right arm girth 25cm.  His left forearm girth was 24cm, right forearm girth 24cm.  The 1cm difference was physiological in right handed individuals.  There was no wasting of his left arm and forearm muscle. I accept counsel’s submission that his alleged debility is inconsistent with Dr. Danny Tsoi’s findings.  I find him making up evidence. 

33. There was full movement and good range of motion of his left elbow one day after the alleged accident [p. 41].  However, he demonstrated to Dr. Danny Tsoi 3 ½ years later that his left elbow’s flexion had reduced.  I accept counsel’s submission that he has exaggerated his debility.   

34. I find his evidence incredible.  I reject all his evidence on all facts in issue.  

On his wife’s evidence

35. She knew that he was anxious to retain the job.  I accept counsel’s submission that if he had been injured in the shop on the previous evening and become unable to work on the following day, he or she would have phoned the shop to ask for sick leave as soon as the shop opened.  They would not have been so passive as to wait for the shop to phone him first.   

36. She says that on the morning of 23 January 2002, he felt painful but a person from the shop phoned him to ask why he was not going to work.  She replied on his behalf that he was unable to work that day because he had injured himself in the shop the previous evening.  That person told her that he was dismissed as a substitute had been hired.  That person then hung up.  No doubt she would have woken him up and he would have phoned back the shop at once.  But they did not do so. 

37. The applicant requests this Court [para 5 of submission] to obtain the telephone record to prove that it was Mrs. Mok who phoned his wife and it was on 22 January 2002.  I think the onus of proof is on him.  

38. I find his wife’s evidence incredible.  I reject her evidence on all facts in issue.   

On the respondent’s evidence

39. Mr. Chan had put down “4” working days in the receipt [p. 155].  The applicant submits that it meant the 4 days of 18, 19, 21, and 22 January 2002.  I do not agree.  I think the entries in the receipt were inconsistent.  Mr. Chan had put down “4” working days on the left hand side but “18, 19, 21” January 2002 on the right hand side.  There is no dispute that the applicant earned HK$6,000.00 per month.  On 28 January 2002, he insisted on being paid for the rest day of 20 January 2002 Sunday and Mr. Chan also let him have it.  He signed the receipt for HK$800.00 and left.  I accept Mr. Chan’s evidence because, if the rest day was counted, he would be entitled to 5 days’ pay amounting to HK$1,000.00 (i.e., HK$6,000.00 x 1/30 x 5) instead of only HK$800.00 (i.e., HK$6,000.00 x 1/30 x 4).  He would not have signed the receipt for HK$800.00 or left.           

40. I regard the respondent to comprise Mr. Chan, Mr. and Mrs. Mok.  There was full insurance cover for the applicant’s compensation.  The insurer, not the respondent, would have to pay up if the respondent was found liable.  I see no reason for them to make up a case against the applicant.  I find their evidence credible and reliable.   

41. The applicant submits [para 1 of his submission] that the notice filled out by Mr. Mok [p. 146 – 151] admitted that he was the respondent’s employee at the time of the accident and that it happened on 22 January 2002.  Mr. Mok has given evidence as to how he came to fill out and submit this notice.  I accept his evidence on this aspect, among others, to be credible and reliable    

42.  I regard Chan Mei Betty and Chan Wa Mui to be independent witnesses.  They were no longer employed by the respondent.  I see no reason for them to make up a case against the applicant.  I find Chan Wa Mui’s evidence credible and reliable.  I find Chan Mei Betty’s evidence’s credible but I am not satisfied that her evidence is reliable.  She confuses the dates and the sequence of the telephone call and the applicant’s physical presence.  She is unable to explain the confusion.  

The case as found

43. I find that the applicant had resigned on the evening of 21 January 2002.  He had not had any accident or injuries throughout the period of employment in the shop.  He had sustained injuries at a time after he left the shop at about 7p.m. on 21 January 2002 but before 10 – 11a.m. on 22 January 2002.  His wife then phoned Mrs. Mok on the same morning of 22 January 2002.  She told Mrs. Mok that he had been injured in the shop on the previous evening (i.e., 21 January 2002).  Mrs. Mok never told her that he was dismissed or that a substitute had been hired.  On 28 January 2002, he asked for 4 days’ pay.  Mr. Chan gave him the 4 days’ pay for 18, 19, 20, and 21 January 2002.  He was satisfied with the pay and left.   

Conclusion

44. I dismiss the applicant’s claim.  I order costs nisi to the respondent.  I have considered counsel’s written submission on the issue of a certificate for counsel.  I do not propose to grant a certificate for counsel.  This order will become absolute 14 days from today.

Dated 27 September 2006