SITI MUALIFAH v. NG KAM FUNG REBECCA

DCEC1508/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1508 OF 2009

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BETWEEN

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J U D G M E N T

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1.  This is the applicant’s claim for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap.282.

2.  At the commencement of trial, I was informed by Mr. Leung, (appearing for the applicant) and Mr. Curlewis (appearing for the respondent) that the quantum of the applicant’s compensation had been agreed at HK$29,013.15, subject to the issue of liability.

3.  It is common ground that the applicant was at the material time employed by the respondent as a domestic helper.  The applicant alleged that on 22 August 2009, in the course of cleaning the windows in the living room, she fell from a ladder and sustained injuries to her left shoulder and upper back (the ‘Alleged Accident’).

4.  There was a disagreement in evidence as to whether the applicant was expressly instructed to clean the windows on the material day.  The applicant was adamant in asserting, and the respondent was equally firm in denying, that such expressed instruction was given before the respondent left for work in the morning.

5.  However, during the course of trial, Mr. Curlewis accepted that even if the respondent did not give such express instructions, the act of cleaning windows, being customary in the duties of any domestic helper, would and should still be regarded as being an activity in the course of employment.

6.  The above being the case, the only issue I need to determine is whether,  on the balance of probabilities, the Alleged Accident took place.

7.  The applicant herself gave evidence; so did the respondent. The respondent also called her husband to give evidence on her behalf.

Section B:  The applicant’s employment history

8.  The applicant arrived in Hong Kong in August 2003.  It appears that she had the misfortune to have a string of demanding and unreasonable employers. 

9.  She first started working for a Mrs. Chan Toi Wa and was paid a monthly wage of HK$2,200, well below the statutory minimum.  Added to that underpayment, she was apparently not given any holiday leave for two years.  It is unsurprising that she was unwilling to renew her employment with Mrs.  Chan.

10.  She then started to work for a Mrs. Lau Mei Wah in August 2005, but that experience was also a bad one, in that she was overworked and was not given the full entitlement to her holiday leave.  She also thought Mrs. Lau was troublesome and therefore the applicant terminated the contract  in September 2006.

11.  The applicant then started to work for the respondent in December 2006.

12.  The respondent is married to Mr. Mak Ming Leung, and together, they have two children:  a daughter and  an  infant son.

13.  The applicant accepted in cross-examination that she was treated well by the respondent and she renewed her contract with the respondent on 24 October 2008.  By the time of the Alleged Accident, she had worked for the respondent for more than 2½ years.

14.  After the Alleged Accident, as will be chronicled below, the applicant did not return to the respondent’s home.  The applicant got married to a lawyer shortly thereafter in January 2010 and then gave birth to her child in August 2010.

Section C:  The Alleged Accident

15.  The applicant gave evidence to the effect that the Alleged Accident happened at around 4.30 pm, which timing is different from that stated in the Notification of Accident dated 24 August 2009, which was on the Monday following the Alleged Accident on Saturday (“the Notification”).

16.  The Notification was filled out by the applicant with the assistance of a lawyer, and the Alleged Accident was stated to have taken place at between  2 to 3 pm.

17.  The applicant also gave evidence that at the time of the Alleged Accident, only Mr. Mak and the infant son were at home.  Mr.  Mak did not witness the Alleged Accident, but came out of his room after he heard the fall.  Mr.  Mak then gave the applicant some ointment to ease her pain, but asked her to continue with her work.  The respondent came home in the evening, and the applicant overheard Mr. Mak telling the respondent about the Alleged  Accident.

18.  The respondent and Mr. Mak denied the above version of events.

19.  Their evidence is to the following effect.

20.  The respondent left for work in the morning.  At around 11.20 am Mr. Mak took his daughter to San Po Kong to attend her drawing and Mandarin classes at the Caritas Jockey Club Integrated Service Centre in Tung Tau Estate (“the Centre”).

21.  The daughter started her classes at 12 noon and Mr.  Mak went to San Po Kong Public Library and then walked around the area before he picked up his daughter at 2 pm.

22.  The respondent then joined Mr. Mak and their daughter for lunch at a restaurant called “Genki Sushi” in Wong Tai Sin Shopping Centre, after  which  they  made  their  way  home,  arriving  at  about  4 pm.

Section D:  Post-alleged  Accident events

23.  Before dealing with the disputed issues, I set out the events after the Alleged Accident, which are largely not in dispute and they are as follows.

24.  After the respondent and Mr. Mak returned home on 22 August 2009, the applicant went to the market with her daughter to do some shopping.

25.  The entire family, including the respondent, then went out for dinner.  In the course of travelling to or from the restaurant, the applicant was asked to carry the  infant  son’s pram.

26.  After dinner, upon arriving back home, the applicant bathed the infant son.

27.  On the following morning, the applicant left the respondent’s home at around 8 am.

28.  During the entire course of the above chronology, the applicant did not raise the topic of the Alleged Accident, nor was there any outward indication that she was suffering from any discomfort. 

29.  At around 12 pm on 23 August 2009, she was seen by Dr. Tsoi Wing Sang at Top Medical Health Centre (“TMHC”) and was given sick leave for seven days.

30.  In his report dated 30 October 2009, Dr. Tsoi stated that his physical examination of the applicant noted redness and tenderness, pain and  limitation  on motion of  the left shoulder and  upper back. 

31.  In the evening of 23 August 2009, the applicant sent the following SMS to the respondent (“SMS”)

“Mom and Sir knows that I had accident yesterday. Saturday

22-08-2009 by falling from ladder.  I have seen private doctor and doctor assign me 2 take rest and doctor gave me sick leave for 7 days.  I will come back until I will recover.  You are not allowed 2 terminate the contract if employee is injured and is on sick leave under the labour ordinance.  I will come back once I recover. Thanks.”

32.  Apart from the above SMS, the applicant did not return to the respondent’s home or contact the respondent or Mr. Mak.  Neither was the respondent able to contact  the applicant.

33.  On 18 September 2009, the applicant visited the Accident & Emergency Department of Queen Elizabeth Hospital and was discharged on the following day. Examination revealed that she was suffering from mild tenderness and slightly reduced internal rotation of her left shoulder.  She was referred to physiotherapy and orthopaedic SOPD for further management.

34.  No sick leave was granted by Queen Elizabeth Hospital on that occasion, but the applicant returned to TMHC and managed to obtain sick leave from TMHC. Altogether, the applicant was granted sick leave by TMHC from 23 August 2009 to 23 May 2010.

35.  In evidence is also a joint medical report prepared by Dr. Lee Po Chin and Dr. Wong Chin Hong dated 17 September 2010.  Dr. Lee and Dr. Wong agreed that the nature and extent of the injury to the applicant’s left shoulder and upper back was consistent with the mechanism of the Alleged Accident.

36.  In evidence are also the following:

(1)   records provided by Octopus Cards Limited showing transactions for the respondent’s and Mr. Mak’s Octopus cards (“Octopus Record”);

(2)   credit card slips and invoices issued by Genki Sushi on 22 August 2009 at around 3.16 pm (the “Genki Sushi Documents”);

(3)   a letter from the Centre certifying that the respondent’s daughter had attended drawing and Mandarin classes on 22 August from 12 to 2 pm.

Section E:  Resolving  the  disputed  issue

37.  On the disputed issue,  Mr. Leung relied heavily on the medical opinion of Dr. Lee and Dr. Wong, stating that the applicant’s left shoulder and upper back injuries were consistent with the Alleged Accident.

38.  However, whilst I readily accept that the applicant had suffered injuries to her left shoulder and upper back, this fact, in and of itself, does not prove the Alleged Accident.

39.  In particular, I am not sure whether the agreed medical opinion has a probative effect for which Mr. Leung contended.  The injuries diagnosed as being suffered by the applicant were not atypical, in that they are consistent with any  impact injuries which are commonplace occurrence.

40.  I cannot, of course, place undue weight on what the applicant told the doctors as to what caused the injuries.

41.  I am prepared to accept that the applicant made an honest mistake as to the timing of the Alleged Accident, i.e., the inconsistency between her evidence (4.30 pm) and the Notification (2 to 3 pm).

42.  However, the applicant’s case was contradicted in more material ways, namely, who was present in the flat at the time of the Alleged Accident and whether she made it known to Mr.  Mak.

43.  The Octopus records and Genki Sushi documents and the letter from the Centre are all consistent with the evidence of the respondent and Mr. Mak, and I accept the evidence of the respondent and Mr. Mak that there was at no point in time in the afternoon of 22 August 2009 when Mr. Mak was at  home alone  with  the  infant son.

44.  It follows, therefore, that I do not accept the evidence of the applicant that she had made  known  to Mr.  Mak  the  Alleged  Accident.

45.  The SMS contained a reminder to the respondent not to dismiss her whilst she was injured.  The foregoing and the fact that the applicant sought legal assistance to fill out the notice have coloured the applicant’s case with a lawyerly slant, but that, in and of itself, is not probative  one  way or the other.

46.  However, I do find the SMS an awkward way of communication with the respondent, whom the applicant admitted as having treated her well, and the applicant has not provided any or any acceptable explanation for her not returning to the respondent’s home at all after the Alleged Accident.

47.  Had the Alleged Accident happen as the applicant contended, I also find it inherently improbable that the applicant did not raise the Alleged Accident and that there was no outward indication of discomfort during the entire course of the afternoon and the evening of

48.  Taking all of the above account, I prefer the evidence of the respondent and Mr. Mak, where it conflicted with the applicant’s.  The applicant has failed to persuade me that the Alleged Accident on the balance of probabilities happened as her evidence described.

49.  It  follows, therefore,  the  applicant’s  claim  is dismissed.

(Discussion re repayment of medical expenses and costs)

50.  As to costs, I make an order that the costs of the application be paid by the applicant to the respondent, to be taxed if not agreed, and that the applicant’s own costs be taxed in accordance with Legal Aid regulations.