WAN JINGYI v. HOO CHUN WING t/a KAI CHUN GOOD WELL AND ANOTHER

DCEC 754/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 754 OF 2014

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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Introduction

1. This is an application taken out by the applicant against the 1^st and 2^nd respondents under sections 9, 10 and 10A of the Employee’s Compensation Ordinance, Cap 282 (“Ordinance”) for compensation in respect of an alleged injury sustained on 6 November 2012 at MegaBox, Kowloon Bay (“Site”) while in the course of employment with the 1^st Respondent.  The 2^nd respondent was the principal contractor of the Site.

2. The applicant claims that he was at the material time pulling a rope to mount a piece of canvas and suddenly felt immense pain in his back, thereby sustaining personal injuries.  The 1^st and 2^nd respondents (collectively referred to as “respondents”) do not dispute the employment relationship between the applicant and the 1^st respondent.  However, they deny the accident had happened as pleaded or at all.

3. In the event that liability is established, in respect of quantum, the parties agree that:-

(1)   compensation under section 10 should be  $212,668.35;

(2)   compensation under section 10A should be $5,000.

Issues

4. The issues for determination are therefore as follows:-

(1)   whether the applicant was injured on 6 November 2012 at the Site;

(2)   if so, the level of compensation payable under section 9 of the Ordinance.

Witnesses

5. The applicant (Mr Wan Jingyi) gave evidence for himself. The 1^st respondent (Mr Hoo Chun Wing), Mr Tam Wing Hor (“Tam”), Mr Fung Yiu Shing (“Fung”) and Mr Ho Chun Tung (“Ho”) gave evidence for the respondents.

Liability

The applicant’s case and evidence

6. At around 2:00 am on 6 November 2012, the applicant was employed by the 1^st respondent to work as a casual construction worker.  He was instructed to work together with four other colleagues, namely Tam, Fung, Ho and one “Gou Ye” (狗爺), to mount a large piece of canvas onto a metal frame.  The said canvas sheet was about 20 metres in length and 12 metres in width.  In order to mount this piece of canvas onto the metal frame, the applicant and his colleagues had to climb onto the top of a scaffold erected by its side and each one of them had to pull up the canvas sheet manually by way of ropes.  They worked together as a team and while in the course of pulling, the applicant suddenly heard a sharp sound from his back and he immediately felt immense pain over his back and he realized that he had sprained his back. He also could not bend his back.

7. Notwithstanding the severe pain, the applicant continued with his work.  He told Fung that he had hurt his back. After he came down from the scaffold, he informed the 1^st respondent of the accident and the injury but was told that it was only a minor strain and the pain would improve with rest.

8. The applicant went back to work on the night of 6 November 2012, and thereafter continued to work at various construction sites for the 1^st respondent despite the back pain.  In the meantime, he only applied ointment and Chinese medical plaster to ease the pain.  However, his back pain deteriorated and it also affected his lower limbs and he found it difficult to walk.  In or around February 2013, the pain in his back and legs was so severe that he could not endure it anymore.  He told the 1^st respondent he had to quit and seek treatment in his hometown in China.

9. The applicant returned to his hometown in Haifeng, China.  He undertook a CT scan of his lumbar spine in a hospital there on 28 February 2013 which showed that he suffered from L5/S1 left anterior protrusion.  The applicant continued to receive Chinese medical treatment in Haifeng since then.

10. The applicant received a phone call from the 1^st respondent in about late March 2013 who asked him to resume work.  The applicant agreed to return to Hong Kong to work despite the low back pain.  While he worked in Hong Kong, he received acupuncture treatment for his back pain.  He worked on an intermittent basis until about early April 2013 when the applicant returned to Huizhou, China to seek treatment.  While he was in China, he received a phone call from the 1^st respondent on or about 9 April 2013 who requested him to come back and work again.  The applicant returned to Hong Kong despite his back pain.  His pain deteriorated and on 23 May 2013 it became unbearable.  He went to seek treatment at the Accident & Emergency Department of Kwong Wah Hospital.  He had since then been under regular medical treatment in Hong Kong.

The respondents’ case and evidence

11. The project at the Site was to erect a scaffold and install a canvas.  The project began on 1 November 2012.

12. At 2:00 am on 6^th November 2012, the job at the Site was to pull a large canvas, which was around 26.4 metres long and 13.9 metres wide, up to the top of the scaffold.  The applicant was employed by the 1^st respondent as an apprentice.

13. When the abovementioned work started, the canvas was stacked in an organ-style at ground level.  At the time, whilst other workers were pulling the canvas, the applicant was responsible for spreading out the canvas at ground level so that it was easier for the other workers to pull the canvas up.

14. During the course of the work, parts of the canvas were caught on the scaffold.  So the 1^st respondent instructed the applicant to climb up the scaffold and loosen the canvas.

15. After the applicant had done as instructed, the 1^st respondent saw that the applicant wasn’t far from the working platform and therefore told him to go to the working platform to help the other workers pull the canvas.  The applicant did as told.

16. The job was soon finished and the applicant climbed back down from the scaffold as usual and proceeded with work. He did not mention any accident or injury.

17. The applicant worked normally in the evening on the same day.  Thereafter, he continued to work for the 1^st respondent up until December 2012.  During this period, the applicant did not mention about any accident, injury or pain.

18. From January 2013 onwards, the applicant was employed by a company called “Tin Sum” (transliteration), where he carried out similar work.  Sometime in February 2013, the applicant sent the 1^st respondent a message saying he would be leaving to go back to his hometown.

19. In around April 2013, the applicant told the 1^st respondent he was back in Hong Kong, and he was hoping to work for the 1^st respondent again.  Therefore, the 1^st respondent employed the applicant once again.  The applicant worked normally.

20. On 22 May 2013, the applicant sent the 1^st respondent a message, saying that his leg was painful and he needed money to see a doctor.  He asked the 1^st respondent for a couple of months’ wages.  Upon questioning, the applicant told the 1^st respondent he had an accident while working at the Site, and that he wanted compensation.

21. On the next day, the 1^st respondent asked the applicant to explain the situation, however the applicant did not reply.  Afterwards, the 1^st respondent was informed that the applicant had reported the injury to the Labour Department.

22. According to one of the applicant’s co-workers, Tam, after the applicant had left for his hometown in February 2013, the applicant told Tam in a telephone conversation that he had a bit of pain in his leg, but it was not a big problem and that he was going to go back to China to see a doctor.  The applicant did not mention the occurrence of any accident during work.  Prior to April 2013, the applicant returned to Hong Kong.  Tam telephoned him and asked about the condition of his leg.  The applicant said it was an old injury suffered from playing basketball when he was still attending school.

Discussion

23. In Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513, Deputy High Court Judge Thomas Au (as His Lordship then was) stated at paragraph 53 of the Judgment that in assessing the credibility of a party’s case on a particular issue, the court should take into considerations the following:-

(1)   whether the party’s case is inherently plausible or implausible;

(2)   whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)   where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests.  This is relevant to the assessment of his overall credibility;

(4)   the demeanour of the witnesses.

24. After assessing the evidence as a whole, I conclude that the applicant’s evidence on whether the accident had occurred was not credible.  My reasons are as follows.

Different Dates of Accident

25. First, the applicant had given a number of different versions of the date of the alleged accident.  Insofar as medical records are concerned, Mr Gidwani and Mr Yuen, counsel for the respondents, highlighted the following instances:-

(1)   On 23 May 2013, the applicant said he had sprain back pain 2 months ago (ie March 2013);

(2)   On 24 May 2013 the applicant said he had sprained back 3 months ago (ie February 2013);

(3)   On 29 May 2013, the applicant said he had sprain injury in February 2013;

(4)   On 1 June 2013, the applicant said he was injured on 5 October 2012[1].

26. The applicant explained in his witness statement that by May 2013, the pain in his back was very severe and he wanted to heal it as soon as possible.  As a result, when he was asked when the pain had started, he could only recall that the pain in February 2013 was very severe and therefore he told that to the doctors.  He did not know that it would cause a misunderstanding that the doctors would record the date of the injury as February 2013 in the relevant medical reports.

27. Ms Lau, counsel for the applicant, submitted that if one is to look at the notes made by the nurses and doctors who attended the applicant on 23 May 2013 and 24 May 2013, one could see that it was simply stated therein that the applicant complained of sprained back pain for about 2 or 3 months.  Nowhere was it stated in the medical notes that the applicant had reported of having an accident involving his back about 2 to 3 months ago.  The applicant had only adopted February 2013 as the reference date because his back pain was at its worst in February 2013 as compared with the earlier time.

28. With respect, I cannot accept her analysis.  Whilst it is correct to say that the medical note on 23 May 2013 only recorded “sprain back pain” 2 months ago, that was not the case in the other medical records.

29. The medical note on 24 May 2013 recorded “sprained back” 3 months ago.  Further, in the corresponding medical report dated 31 August 2013, the doctor recorded that the applicant attended on 24 May 2013 for low back pain after a “sprain injury sustained” 3 months ago.

30. The medical evidence is also very clear in respect of the applicant’s attendance on 29 May 2013.  The relevant medical note recorded “sprain injury -> 2/2013” and “sprain back while lifting heavy object 4/12 ago”.  The corresponding medical report dated 15 August 2013 recorded that the applicant “sprained his back about 4 months ago while lifting heavy object”[2].

31. When questioned about this particular attendance on 29 May 2013 during cross-examination, the applicant first said he had forgotten whether he had told the doctor that he had sprained his back 4 months ago “while” lifting heavy object.  However, he later changed his answer.  He said he had told the doctor that he had carried heavy object in February 2013, but he had also told the doctor that he had sprained his back earlier in November 2012.  He wondered if the doctor had misunderstood or mistaken his accounts and therefore made the wrong record that he had sprained his back while lifting heavy items 4 months ago.

32. I do not accept the said explanation of the applicant, which was contrary to the clear medical records and not mentioned in his witness statements.  I also find it difficult to accept the late revelation of the said explanation during cross-examination, whilst his initial answer was that he had no recollection whether he had told the doctor that he had sprained his back 4 months ago while lifting heavy object.

33. In summary, it was clearly recorded in the hospital records that the applicant had repeatedly said that he had suffered a back sprain injury, and not just back pain, in February or March 2013.  Such dates are inconsistent with the present pleaded accident date of 7 November 2012.

34. Further, I find it difficult to accept the argument that the applicant had only given the month of February (or March 2013) because his pain was at its worst at that time.  According to the applicant’s evidence, his pain had never been mild.  The applicant told the court that the pain was like fracture and he could not bend his back after the accident.  The pain became more and more severe and eventually radiated to his legs and he found it difficult to walk.

35. With such degree of pain and disability, I find it inexplicable that the applicant would have failed to tell the hospitals about his severe back pain and stiffness, which was already troubling him before February 2013.  The applicant’s evidence is inherently improbable and is rejected.

36. On the other hand, the respondents also highlighted the following dates, which were advanced by the applicant as the date of the accident at various stages:-

(1)   In the “Notification of Accident” to the Labour Department dated 27 May 2013, the applicant stated that the date of the accident was 5 October 2012;

(2)   In the Employee Compensation Application dated 10 April 2014, he stated 6 October 2012 as the date of the accident;

(3)   In the Amended Application dated 10 June 2014, he changed the date to 6 November 2012.

37. The applicant explained that when he was preparing the Notification of Accident, it was a long time from the date of accident and he only remembered the accident occurred in the beginning of the month.  After being questioned by his lawyers several times, he discovered the time of accident was after midnight and hence the day of accident should not be the 5^th of October, but the 6^th.  Therefore, he corrected the date of the accident in the Application from 5^th to 6^th of October.

38. The applicant then explained that he further amended the date of accident from 6 October to 6 November 2012 in his Amended Application after receiving an e-mail from the 2^nd respondent on 17 April 2014 saying that the construction work at the Site did not even began until 31 October 2012.  As a result of the said email, he had looked through his mobile phone’s photo album and found photos of the Site appearing after photos of Halloween, when the photos were viewed in chronological order.  As such, he deduced that the accident should be after Halloween.  Therefore, he changed the month from October to November.

39. Mr Gidwani submitted that the explanations proffered by the applicant were incredible.  In gist, it was submitted that the photographs had long been in his telephone and therefore it was improbable that he or his legal advisors had not look through it to ascertain the date of accident before filing formal legal documents like the Notification of Accident or the Employee Compensation Application.  Further, it was submitted that the explanation was a very forced one.

40. With respect, I do not think such challenges cast any doubt on the credibility of the applicant’s case.  This is because insofar as the said 3 documents are concerned, while the applicant had given different dates for the alleged accident, he had always claimed in these 3 documents that he was injured whilst pulling the canvas at the Site.  There is no dispute that such work was actually done on 6 November 2012.

Failure to Seek Medical Treatment

41. Secondly, the applicant’s failure to seek immediate medical treatment after the alleged accident is also inherently improbable.

42. As stated above, according to the applicant, the pain after the accident was so severe that it was like fracture. He was also not able to bend his back.  However, despite such debilitating symptoms, the applicant was still able to continue with his work for about 3 months after the accident until February 2013.  According to him, such work required great physical strength and low back strength.  It was only in February 2013 when his pain was so severe that he had to quit his job and seek treatment in Mainland China.

43. I find it difficult to accept that the applicant would not have attended proper medical care at the time, if such a serious accident as described by him had indeed occurred in November 2012.

Findings

44. For the above reasons, I find the evidence of the applicant unreliable and not credible, and I reject it.

45. On the other hand, I find the 1^st respondent and the respondent’s witnesses to be credible witnesses.  They gave consistent evidence, and were not shaken under cross-examination.  I accept their evidence and prefer their evidence to that of the applicant’s whenever there is a conflict between them.  Therefore, I find also the following:-

(1)   The applicant had not informed the 1^st respondent or any of his co-workers that he had suffered an injury on 6 November 2012.

(2)   The applicant had worked normally after the morning on 6 November 2012 and had not displayed any abnormality.

(3)   The applicant had told Tam during a telephone conversation that his leg problem was due to an old injury suffered from playing basketball when he was still attending school.

(4)   The applicant first told the 1^st respondent about the alleged accident in May 2013.

46. Before making the above findings, I had not lost sight of the detailed submissions by both sides in respect of the various contended discrepancies in the other sides’ evidence.  Those contended discrepancies were mainly in relation to how the canvas was pulled at the material time.  In gist, the respondents criticized the applicant for failing to mention in his witness statements the jamming of the canvas and the pulling of the same rope with Fung.  On the other hand, the applicant in gist criticized the 1^st respondent and his witnesses for changing the number of people pulling each rope, the discrepancy as to whether or not 1 or 2 independent lifelines were used by Gou Ye, the discrepancy in the respective standing positions on the working platform, and the discrepancy as to whether or not the applicant had at any time on the working platform pulled the rope by himself.

47. In my opinion, the said discrepancies did not cast any doubt on the creditability of the witnesses on either side.  This is because according to the evidence of the 1^st respondent and his witnesses, 6 November 2012 was just another normal workday for them.  Insofar as the applicant is concerned, the day was also a normal day until the accident happened.  In the circumstances, there was no apparent reason for any of the witnesses to pay special attention to and memorize all the minor details in respect of the carrying out of their work on that day.  None of them would have known in advance that they would be required to testify as to those minor details some years later in court.

48. In the premises, I conclude that the applicant has failed to prove that the alleged accident had occurred on 6 November 2012.  Compensation is therefore not payable by the respondents to the applicant.

Quantum

49. However, if I were wrong above, and that an accident did occur on 7 November 2012, my ruling on the quantum of compensation pursuant to section 9 of the Ordinance would have been as follows.

50. The applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“Board”) on review on 8 January 2015 to have suffered 1.5% loss of earning capacity as a result of his back injury resulting in back and left leg pain, numbness and stiffness.

51. Both the applicant and respondents appealed against the assessment of the Board.  The applicant says the loss of earning capacity should be 6%, whilst the respondents say that it should be 0.5%.

52. During final submissions, however, Mr Gidwani fairly conceded that 1.5% is actually the proper percentage for loss of earning capacity in this case.

53. It is not in dispute that in the assessment of the proper percentage for loss of earning capacity, the court has to start afresh, relying not only on the certificate of the Board but also on any other evidence, especially medical evidence, adduced before it to assess the loss of earing capacity permanently caused by the injury suffered in an accident at work (Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246 at 248H).

Joint Examination

54. The plaintiff was jointly examined by Dr Wong See Hoi for the plaintiff and Dr Ho Ching Lun Henry for the defendant, on 11 September 2014.  A joint orthopaedics report was subsequently prepared dated 24 January 2015.

55. At the joint examination, the applicant managed to perform tip-toes, heels walking, standing on one leg and full squatting but complained of back pain.  There was tenderness over lumbosacral junction and left paraspinal muscle with no tightness or spasm detected.  There was mild decrease in sensation over the whole left lower limb. There was generalized mild weakness of both lower limbs.  Range of movement of back on flexion was only up to mid thigh.  Straight leg raising test revealed 20 degrees on left side with complaint of back pain and 40 degrees on right. The lower limb reflexes at the knee and ankle were normal and symmetrical.

56. Dr Wong opined that the applicant’s condition was compatible with residual symptom of a satisfactory sciatica recovery.

57. On the other hand, Dr Ho opined that the reduced sensation involving the whole left lower limb and generalized mild weakness of both lower limbs were non-organic and non-anatomical, as these findings were inconsistent with compression of a specific spinal nerve root.  If a specific nerve root such as the left S1 nerve root is compressed or irritated by an L5/S1 disc, the numbness should be over a well-defined dermatomical region in the left leg and should not involve the whole left lower limb.  Furthermore, the weakness should involve only plantar flexion of the left big toe.  The presence of normal ankle reflex on both sides also indicated that the S1 nerve roots on both sides were not compressed.  Dr Ho referred to the MRI, which only showed mild bulging of the L5/S1 disc, with no narrowing of neuroforamina and no compression of nerve roots.  There was no radiological evidence to support an acute injury of any of the discs in his lumbar spine.  Furthermore, the lateral X-ray of the lumbar spine taken on the day of the joint examination showed normal lumbar lordosis, which indicated the absence of muscle spasm in his back.  Therefore, he was not suffering from acute back pain.  He had therefore, recovered well from any soft tissue injury of the back.  The surveillance video further confirmed that his normal daily activities were not affected.  The movements of his back and lower limbs were unrestricted.  Therefore, he did not have a serious back disability.

58. It is notable that Dr Wong did not give any opinion in reply to Dr Ho’s observations above.  Dr Wong’s own comment is not very helpful as it appears that he simply accepted the applicant’s subjective complaints without any objective and critical analysis.

59. Further, I have watched the surveillance videos, which support the observations of Dr Ho.  There was no indication that the applicant’s activities had been hindered or restricted by any problems with his back or legs.

Prognosis

60. Regarding prognosis, Dr Wong opined that the prognosis was fair, and the applicant was expected to have on and off attack of back pain and left lower limb numbness on exertion around these areas particular in heavy lifting and carrying.  His activities of daily living were unaffected.  However, vigorous sports were not recommended considering the plaintiff’s medical condition.

61. On the other hand, Dr Ho opined the applicant had already made an excellent if not a complete recovery.  The prognosis was excellent.  He should not be suffering from significant back symptoms or leg pain.  His lifting capacity should be little affected if he adopts the correct lifting posture.

Working Capacity

62. Regarding working capacity, both experts agreed the plaintiff was able to resume pre-accident job as a construction site worker.

63. Dr Wong opined there would be decreased efficiency and capacity in prolonged heavy lifting and carrying type of work.  With on and off back pain and left lower limb symptom, he might have discomfort and inconvenience in delivery duty and frequent climbing of bamboo scaffolding as required in his job duties.

64. On the other hand, Dr Ho opined that the applicant had recovered well and was fit to return to his pre-injury job with no restriction.  His capacity and efficiency should be minimally affected.

Finding

65. In view of the detailed opinion of Dr Ho referred to hereinabove at paragraph 57, which was not rebutted by Dr Wong, I prefer the opinion of Dr Ho in relation to the the condition of the applicant.

66. Taking everything into consideration including the surveillance videos and the physical condition of the applicant in court, I agree with the Board that the Applicant’s loss of earning capacity should be 1.5%.  The appeals of both parties are dismissed.

Quantum of Compensation

Section 9

67. The applicant was born on 27^th February 1993.  He was 19 years old at the time of the accident.

68. The parties agree to adopt $14,266.66 as the applicant’s monthly earnings at the time of the accident.

69. The amount of compensation payable under Section 9 is thus:-

  $14,266.66 x 1.5% x 96 = $20,543.99

Section 10

70. As stated above, the sum of $212,668.35 was agreed.

Section 10A

71. As stated above, the sum of $5,000 was agreed.

Total

72. The total sum of compensation, if payable, will therefore be:

Section 9	$20,543.99
Section 10	$212,668.35
Section 10A	$ 5,000.
Total	$238,212.34

Interest

73. Interest should be awarded at half of the judgment rate from the date of the accident to the date of judgment, and at judgment rate thereafter until payment.

Order

74. As I am not satisfied that the applicant has established liability against the respondents, his claim for compensation must be dismissed.  I so order.

75. Costs should follow the event.  I make an order nisi that the applicant shall pay the costs of the respondents for this action including all costs previously reserved, to be taxed if not agreed, with a counsel certificate.  The applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.

76. Finally, I thank counsel for their valuable assistance.