CHAN MEI FUNG v. KWONG FUNG FRESH FRUIT CO LTD

DCEC 738/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 738 OF 2012

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JUDGMENT

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1.  This is an application for employees’ compensation arising out of an alleged accident at work occurred on 2 October 2011.

Core issue on liability

2.  Employment relationship is not in dispute.  The core issue on liability is whether the alleged accident has occurred at all.

Background

3.  The respondent operated its wholesale business of fruits at Yau Ma Tei Wholesale Fruit Market. It also provided logistics services to other fruit wholesalers by, inter alia, collecting bananas on their behalf from the warehouse of the supplier Del Monte Fresh Produce (HK) Ltd (“Del Monte”) and delivering the same to them.

4.  The applicant was employed and engaged mainly in the selling of fruits and as the warehouse porter. He was also required to assist in delivery work when the respondent was short-staffed.

5.  Despite the alleged accident on 2 October 2011, the applicant did not seek any medical treatment until the early hours of 15 October 2011 when he experienced sudden onset of right upper limb weakness and numbness upon waking up from sleep.

6.  Since medical treatment from 15 October 2011, the applicant has not mentioned to any of the attending doctors about the alleged accident until he did so for the first time on 10 November 2011.

The alleged accident

7.  According to the applicant, on 2 October 2011 after a few pallets of bananas were being collected and transported from the Del Monte warehouse to Yau Ma Tei Wholesale Fruit Market, he was  instructed by his boss Chan Wing Kwong (“Chan”) and his superior “亞樑” to deliver one pallet of those to a wholesaler called “波記”. In the course of delivery, a few boxes of bananas fell off the top tier and hit him on the neck area. He reported the accident to Chan and 亞樑 on the day.

Sub-issues

8.  This case essentially turned on the facts.In finding whether the accident has occurred, the following matters are relevant for consideration and determination.

(1) Whether there was delivery of bananas on 2 October 2011?

(2) Whether 亞樑 was at work on 2 October 2011?

(3) Whether the applicant reported the alleged accident to Chan and 亞樑 on the day of accident?

(4) Whether there was a reasonable explanation of not mentioning to any of the attending doctors about the accident until 10 November 2011? and

(5) Whether the applicant’s injury was a probable result of the alleged accident?

Sub-issue (1):Whether there was delivery of bananas on 2 October 2011?

9.  It is evident from the following documents that there was no delivery of bananas on 2 October 2011 whether to 波記 or at all.

(a) a daily distribution list from Del Monte showing that there was no supply of bananas on 2 October 2011;

(b) a monthly delivery record prepared by the driver showing that there was no delivery of bananas on 2 October 2011; and

(c) invoices to the respondent’s customers including 波記 for delivery service charges for the month of October 2011 showing that there was no delivery of bananas on 2 October 2011.

10.  Authenticity of these documents is not in issue, but various attempts were made to challenge their reliability and accuracy. Every effort was exhausted by Mr Lau for the applicant to spot mistakes and to identify discrepancies between these documents and some sales records not concerning波記.

11.  I find that these attempts were to no avail. These documents do not have to be flawless in order to be given weight. Their probative value depends on the nature of the mistakes and discrepancies, the significance or bearing of the same over the issue in question, and whether the respondent can offer reasonable explanation of the same etc.

12.  The mistakes and discrepancies pin-pointed by Mr Lau are minor and trivial in nature; they do not have direct or significant bearing over the issue of whether there was delivery of bananas on 2 October 2011. Further, Chau Tim Lung for the respondent (“Madam Chau”) has provided reasonable explanation of the mistakes and discrepancies;her testimony reinforced the reliability of these contemporaneous documents which clearly showed an established system of cross-checking the delivery records of bananas. 

13.  In addition to these documents, there was a letter from Del Monte confirming that there was no supply of banana on 2 October 2011. While authenticity of this letter is also not in dispute, there were various cavils and nit-picking about its content with a view to undermine its reliability. These efforts are futile.

14.  I find that the above contemporaneous documents are clear and irrefutable evidence to show that there was no delivery of bananas on 2 October 2011. I also accept the clear and unshaken evidence of Madam Chau, Chan and the driver Chan Kit Ming that there was no delivery of bananas on the material day. On this finding, it follows that the alleged accident could not have occurred.

Sub-issue (2): Whether 亞樑 was at workon 2 October 2011?

15.  It is evident from a salary record of holiday overtime work on 2 October 2011 that 亞樑 was not at work on that day. The reliability of this contemporaneous record remained unshaken; it follows that 亞樑could not have instructed the applicant to deliver bananas as alleged. 

Sub-issue (3): Whether the applicant reported the alleged accident to Chan and 亞樑 on the day of accident?

16.  The applicant’s assertion of having reported the accident to Chan and 亞樑 on the day of accident was inconsistent with his  declaration dated 18 November 2011 to the Labour Department stating that he reported the accident to Chan on 20 October 2011. Under cross-examination the applicant tried to explain the inconsistency away by saying that he reported the accident the first time on the day of the accident and the second time on 20 October 2011.

17.  I rejected theapplicant’s explanation for the following reasons. Firstly, the alleged reporting on 20 October 2011 contradicted hisown testimony that he has completely forgotten about the accident until 25 October 2011. Secondly, there is unchallenged evidence that Chan was not in Hong Kong on 20 October 2011. Thirdly, there was no reason why he had to report the matter twice.

18.  The applicant is not a credible witness. I find that he did not report the alleged accident to Chan whether on 2and/or 20 October 2011 as alleged or at all. Further, on my finding that 亞樑 did not work on 2 October 2011, the applicant could not have reported the accident to him as alleged. A reasonable explanation to the omission to report is that the alleged accident has not occurred.

Sub-issue (4): Whether there was a reasonable explanation of not mentioning to any of the attending doctors about the accident until 10 November 2011?

19.  The applicant said he has completely forgotten about the accident until 25 October 2011 when being asked by the treating doctor whether he had suffered any injuries whilstat workhe was able to recall the accident. Hence he was only able to report the accident at the next follow-up consultation on 10 November 2011.

20.  Taking into account (a) the strong force of the falling bananas and the impact he experienced in the alleged accident; and (b) hisdescription to the doctor that right hand cramp gradually appeared a few days after the injury when carrying heavy objects increasing in severity during work, I find it improbable that the applicant would have completely forgotten about the event as alleged.

21.  Further, I do not believe that 25 October 2011 was the first occasion the applicant being asked whether he had suffered injuries. It is evident from medical notes that he has denied injuries and recent trauma on several occasions before 25 October 2011.   

22.  A reasonable explanation of the omission to inform the doctors about the accident on 15 October 2011 is that the alleged accident has not occurred.

Sub-issue (5): Whether the applicant’s injury was a probable result of the alleged accident?

23.  Dr Fu for the applicant diagnosed him of cervical disc prolapsewhich should be the result of the alleged accident. It is noteworthy that while Dr Fu considered gradual onset of right upper limb weakness  typical for disc prolapse, the onset in the applicant’s case was not gradual but sudden.

24.  The respondent’s expert Dr Chun disagreed with Dr Fu’s diagnosis.  Based on clinical presentation including the site of weakness and sensory impairment recorded by the attending doctors, Dr Chun diagnosed the applicant of radial nerve palsy, the result of having many drinks, sleeping with his head resting on his arm, resulting in prolonged compression of the radial nerve at the arm level. Before me, there is indeed evidence of beer-drinking and sleeping before the said sudden onset.

25.  I accept the following analysis of Dr Chun. If the disc prolapse did occur on 2 October 2011, it should have been an acute event of disc protrusion such that sharp pain and numbness and weakness down would have appeared immediately instead of after 10 odd days. Further, the acceleration force generated by gravity should be so great that one would have expected fracture or fracture dislocation at the cervico-thoracic region of the spine. That aside, there should also be significant soft tissue injury which would have prevented the applicant from continuing to work immediately after the accident and also for another 10 odd days.

26.  As seen from the joint report, Dr Chun’s diagnosis is well elaborated; and there is detailed analysis on how and why he differed from the view of Dr Fu. I prefer the opinion of Dr Chun to Dr Fu’s. I find that the applicant’s right radial nerve palsy was not a probable result of the alleged accident, but due to prolonged compression of the radial nerve during sleep.

Determination on liability

27.  The applicant’sevidence is incredible and ismade up as afterthought in order to claim compensation against his employer. I find   Madam Chau, Chan and Chan Kit Ming to be credible witnesses, their evidence are direct cogent and unshaken. I prefer their evidence insofar as they differ from the applicant’s. As regards the evidence of陳肖嬋 for the respondent, since it is indirect and insignificant to the issue in question, I did not give weight to it.

28.  While there are other side issues in dispute, none of them can advance or save the applicant’s case, even found in his favor (which I did not after considering the relevant evidence). They included, inter alia, how the bananas were being secured to prevent falling, whether Madam Chau suggested amendment of the date of accident, when did Madam Chau receive sick leave certificates, and whether the applicant fell off during sleep before the said sudden onset etc.

29.  I find that the alleged accident has not occurred. The application for compensation failed. 

Quantum

30.  For completeness sake I shall also deal with quantum. Should liability against the respondent been established, compensation under sections 9, 10 and 10A are assessed as follows.

Section 9 compensation

31.  The applicant seeks to appeal against the findings of the medical board on assessment of loss of earning capacity. Having considered the applicant’s condition, medical evidence and the respective prognosis by Dr Chun and Dr Fu in this regard, I find that loss of earning capacity should be 2% as assessed by the medical board.

32.  The amount of section 9 compensation payable should be: HK$13,400 x 2% x 96 months = HK$25,700.   

Section 10 compensation

33.  The applicant was granted sick leaves for a total of 220 days.  The amount of compensation payable should be :

HK$13,400 x 220 ÷ 30 x 4/5 = HK$78,613.33

Section 10A compensation

34.  The amount of medical expenses incurred is $580.

Summary of compensation

35.  Compensation (if payable) is summarized as follows:-

Section 9	HK$25,728.00
Section 10	HK$78,613.33
Section 10A	HK$580.00
Total	HK$104,921.33	(with interest)

Conclusion

36.  I order that the application for compensation be dismissed.

37.  I make an order nisi that the applicant do pay the respondent costs of the action with certificate for Counsel, to be taxedif not agreed.

38.  The order nisi shall become absolute unless an application to vary is made within 14 days from today; and

39.  The applicant’s own costs be taxed in accordance with Legal Aid Regulations.