ALI LIAQAT v. GO SING WASHING CO O/B TINDEX LTD

DCEC 1571/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1571 OF 2010

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JUDGMENT

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BACKGROUND

1.  This is the applicant’s application for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”). The applicant’s claim is based on an industrial accident arising out of and in the course of his employment with the respondent which occurred on 18 January 2009.  According to the applicant, his eyes and back were injured as a result of the accident.

2.  In its Answer dated 8 March 2011, the respondent did not admit that the applicant was employed on 18 January 2009, but on 19 January 2010. Nevertheless, the respondent no longer takes this as an issue at the trial, and disputes only 2 matters, namely (1) the causation of the applicant’s back injury and (2) the quantum of compensation under the Ordinance.

3.  In any event, according to the respondent’s staff record (p 271 of the trial bundle) as well as the witness statement of the respondent’s witness Chong Ching Wah (p 69 of the trial bundle), it is clear that the applicant has commenced working for the respondent on 10 January 2009 and the applicant did work for the respondent on 18 January 2009.  Thus, it cannot be disputed that the applicant was the respondent’s employee on 18 January 2009.

THE APPLICANT’S CASE

4.  The applicant was born on 16 April 1970.  At the time of the accident, he was aged 38.  He was employed by the respondent to work as a laundry man at 4^th Floor, 17 San On Street, Tuen Mun, New Territories, Hong Kong. He earned about $7,200.00 per month at the time of the accident.

5.  On 18 January 2009 at around 7:30 am, he was instructed to do tablecloth washing work by using an automatic washing machine (“the machine”).  His colleague instructed him to put more cloths into the machine for washing.  He tried to squeeze more cloths inside the machine and close the door, but could not do so.  He was then instructed to switch on the machine so that the machine would roll and the cloths would be squeezed inside.  He held the door of the machine with one hand and switched it on with another hand.  When the machine rolled, the liquid inside the machine suddenly splashed out onto his face.  He fell backwards and hit an empty trolley behind him.  As a result, he sustained injury to both his eyes and back.

6.  Aftertheaccident, theapplicantreturnedhome directlyand did not go to the hospital immediately.  He only wentto the Accident&Emergency Department of TuenMun Hospital for medicaltreatment on the next day, ie 19January2009,atabout12:48, alongwithhis12 years old child who was acting as his interpreter.  A medicaldoctor examined and diagnosedhim as having eye injury, but his back injury was not recorded.

7.  Subsequently,theapplicantreceived othermedicaltreatments, physiotherapyandoccupational therapy. He also attendedthe Accident&Emergency Department of PokOiHospitalon7February2009forheadache and was admitted to the Department of Medical and Geriatrics for further investigation.  However, his back injury was first recordedonly on20February2009when hesoughtmedicalattentionat the Accident&Emergency Department of TuenMun Hospital.

8.  Theapplicantwasfirstassessedbythe Employees’ Compensation (OrdinaryAssessment) Boardon7and13April2010,and was certified on 27April 2010to have 0.5% of loss of earning capacity permanently caused by the injury to both eyes and back resultinginback pain.  The applicant was not satisfied with the assessment and applied for a review.  He succeeded in the review and had the assessment of his loss of earning capacity revised to 5% on 4 October 2010.

THE RESPONDENT’S CASE

9.  The respondent does not accept that the applicant suffered any back injury as a result of the accident and challenges many aspects of the applicant’s evidence in this regard as discussed below.

10.  As to the quantum of compensation, the respondent contends that according to the medical evidence, the applicant’s eye injury is not permanent and hence his loss of earning capacity should be 0%.  The respondent has filed a notice of appeal pursuant to section 18 of the Ordinance to appeal against the assessment of the Employees’ Compensation (OrdinaryAssessment) Board issued on 4 October 2010.  Thus, the respondent contends that there should not be any award under section 9 of the Ordinance.

11.  As most of the applicant’s sick leave certificates were for his back injury, while some were for both his eye and back injuries, the respondent is prepared to accept 50% of those sick leave periods related to both eye and back injuries, ie 44 days in total.  The respondent accepts the monthly salary of $7,200.00 as claimed by the applicant.  Thus, the award under section 10 of the Ordinance should only be $8,448.00 ($7,200.00 x 4/5 x 44/30).

12.  The respondent also contends that the applicant did not incur any medical expenses as shown by the receipts produced, and hence there should be no award under section 10A of the Ordinance.

13.  Since the applicant has already received an advance payment of $11,604.00, which is more than his entitlement, the respondent contends that the applicant should not have brought these proceedings against it in the first place.

14.  I shall discuss and decide on the issues raised by the respondent as set out below.

CAUSATION OF THE APPLICANT’S BACK INJURY

The man present at the accident and the dialogue

15.  At first, theapplicant testifiedthattherewasamaninchargeofthe respondentat the scene forcingtheapplicanttoputmore clothsintothe machine.Theapplicanttestifiedthatthe manwastherewhentheaccidenthappened,ie themanmust have been aneyewitness tothe accident.  Inaddition,theapplicantallegedthathehadaskedtheman whether he should see a doctorandthemanreplied that he did notknow.

16.  However, under cross-examination, the applicant changed his testimony and said that the man had already left the scene and did not witness the happening of the accident.  The applicant alleged that the dialogue about seeing a doctor occurred only when the man returned after the accident when he mentioned to the man that something had splashed into his eyes.

17.  The applicant alleged that he had informed his then lawyer of the dialogue with the man.  However, nothing about this event was mentioned in the applicant’s witness statement or the applicant’s declaration made to the Labour Department.  This man is obviously a very important witness to the applicant’s case.  Even if the applicant might not be aware of it, there is no reason for the lawyer to ignore it as well.

18.  Thus, the applicant’s evidence in this regard is not convincing to me at all.  It is likely that he was making up these details upon being cross-examined and had to change his evidence to suit his case that no one witnessed the accident.  In any event, he did not raise any complaint about his back injury to the man.  If he had suffered injury at his back at that time, there was no reason why he did not mention anything about his back injury to the man.

Reversing to hit the trolley

19.  Under cross-examination, the applicant testified that the place where the machine was placed was like an aisle.  He was facing the machine at the time of the accident while the empty trolley was right behind him.  The width of the aisle between the machine and the piles of cloths behind him was about 3 to 3.5 feet.  He was surrounded by trolleys (loaded or vacant) and piles of cloths. When the liquid splashed out from the machine, he moved backward for about 1 or 2 footsteps, or about 1 to 1½ feet, before he hit the trolley.

20.  In his witness statement, the applicant described the size of the trolley to be about 3 feet in length, 1.5 feet in width and 2 feet in height. However, during cross-examination, he described the trolley to be like a cube with equal length of 3 feet on all sides.  Given that the width of the aisle was about 3 to 3.5 feet and that the trolley would not be small in size, using either of the dimensions mentioned by the applicant, it is difficult to see how the applicant could still have room for moving backward for 1 or 2 footsteps, or 1 to 1½ feet, before hitting the trolley in question.

21.  In addition, under cross-examination, when he was asked about the impact of the hitting onto the Trolley, the applicant said that it was a huge impact and he was in great pain.  If it was a huge impact as alleged by the applicant, it would have resulted in obvious injury, like bruise, at his back, and the injury should be noticeable.  However, the doctor first attended the applicant did not diagnose any back injury on 19 January 2009.  There was absolutely no reason for the applicant not to mention anything about his back injury to the doctor if he was in great pain.  If the applicant had informed the doctor about it, as he alleged, then there was also no reason for the doctor not to record this complaint.

22.  Thus, the applicant has failed to convince me that there was such a huge impact against the trolley causing him back injury.

After hitting the trolley

23.  When questioned about the events after the accident, the applicant said that after he hit against the trolley, he fell down and lay on the floor for about 5 to 6 minutes before he could manage to stand up.  He said that the burning pain at his eyes and the huge pain on his back disallowed him to stand up.  Later on, he managed to stand up by gripping the wall nearby.  He also said that he had shouted for help but nobody was there at the scene.  However, he agreed that the accident happened during normal business hours, ie there should be other colleagues working at the scene or in the vicinity.

24.  It is rather difficult to imagine that the applicant had laid on the floor for such a long period of time shouting for help, and yet no one noticed him, especially when the applicant’s evidence is that there was this man in charge of him who was there either at the time of the accident or shortly before the accident.  This man should not be too far away from him.  It is also difficult to understand how the applicant could have gripped the wall to stand up.  There was no evidence that there was any wall in the vicinity.  According to the applicant, the aisle was an L-shape area, with its width of about 3 to 3.5 feet, fully surrounded by trolleys (loaded or vacant) and piles of cloths only.

Going home, not hospital, after the accident

25.  The applicant testified that when he left the scene, he went downstairs and asked someone standing there how to get a taxi.  He then took a taxi to go home directly.  He said that it took time for the man standing there to explain to him how to take a taxi, because he did not understand the man’s language.  It is very strange that the applicant left the scene by taxi to go home, rather than to go to the hospital.  Should the applicant have sustained serious injuries, especially the back pain, one would expect him to ask the man to send him to hospital, or at least call for an ambulance, instead of standing there for a long time to understand the man’s explanation on how to get a taxi.  His action was totally inconsistent with his allegations that he had just had a hugely impact at his back and was in great pain.

26.  When questioned about his knowledge of what the hospital would offer him under the circumstances, the applicant confirmed that he knew he could have obtained medical treatments in the hospital at that moment, but he did not choose to do so because he thought he could not speak the local language and could not relate his medical conditions to the medical staff in the hospital.  Thus, he decided to go home first to take his child to the hospital so that his child could act as his interpreter.

27.  Even so, it is inexplicable why the applicant did not go home to have his child going along with him right away to the hospital on 18 January 2009 or later on in the evening of 18 January 2009, but only unti119 January 2009.  In any event, I do not accept that his local language ability would prevent him from communicating with the doctor.  According to his own evidence in court, when he attended Tuen Mun Hospital on 19 January 2009, he said to the first attending doctor words like “Here hurts a lot” in Cantonese while he pointed at his back with his hand or finger.  It is clear to me that his Cantonese was sufficient for him to tell the doctor or indicate to the doctor where he was feeling pain or not well.  Thus, if he was really in pain because of the back injury, I believe he would have gone to the hospital immediately.

Attendance card

28.  There was an attendance card of the applicant for the month of January 2009 which showed the record of incoming and outgoing times of each of his working days in that month.  The attendance card showed that on 18 January 2009, his incoming time was “7:10” and his outgoing time was “18:09”.  The applicant admitted that he had received a whole-day salary for 18 January 2009 subsequently, and it was not part of his sick leave, which started from 19 January 2009.

29.  At first, the applicant testified that he did not punch the attendance card at all.  However, under cross examination, the applicant conceded to have punched the attendance card in the morning only, ie in the morning of 18 January 2009, but not in the evening.  There is no evidence as to anyone else, apart from the applicant, who would have punched the attendance card in the evening of 18 January 2009 for the applicant.  There is also no reason at all for the respondent or any of its staff to punch the attendance card for the applicant when the respondent was not even aware of the applicant’s alleged injury at work at that time.  If, as alleged by the applicant, the respondent was already made known of his accident on that day, ie 18 January 2009, I still see no reason why the respondent would punch the attendance record for him and gave him his whole-day wage for 18 January 2009.

30.  The attendance card and the payment of wage in fact support the respondent’s case that the applicant actually worked for the whole day on 18 January 2009 and the respondent was not aware of the accident on 18 January 2009.  They cast great doubt on the applicant’s claim that he had great pain at his back and was unable to work on that day.

Diagnosis by the first attending doctor

31.  The applicant testified that on 19 January 2009 at around noon, he along with his child acting as an interpreter visited the Accident&Emergency Department of TuenMun Hospital to seek medical attention for the first time since the accident.  He disclosed all of his medical problems to the first attending doctor who, as the applicant alleged, was aware of and understood all of his medical problems at the material time.  When questioned as to why he did not disclose the back pain to the doctor, he insisted that he had already done so.  He further alleged that the doctor either could not understand his child or that his child did not understand or interpret properly.  However, he testified that his back had been examined by the doctor at the material time and the doctor was well aware of his back pain.  He used facial expression and body language to indicate the back pain to the doctor.  When questioned about how he expressed himself, the applicant said that he told the doctor with some words in Cantonese meaning “Here hurts a lot”, while pointing his back with his hand or finger.   The applicant also confirmed that he could speak 1 or 2 words such as “where” and “how” in Cantonese, but he could not explain in Cantonese.

32.  Nevertheless, there is nothing recorded in writing by the doctor regarding the applicant’s back pain.  A medical report issued by the Department of Ophthalmology of Tuen Mun Hospital dated 11 May 2009 mentioned only the eye injury. Medical notes of the Accident&Emergency Department of TuenMun Hospital dated 19 January 2009 mentioned nothing about the back pain.  Another medical report issued by the Accident&Emergency Department of TuenMun Hospital dated 13 May 2009 again recorded the eye injury only and expressly confirmed  that the applicant had not mentioned about the back pain during the consultation at the material time.

33.  All these contemporaneous medical notes and medical reports have convinced me that the applicant’s alleged complaint about his back pain to the doctor cannot be true.  Had the applicant informed the doctor about his back pain at that time, there should be such a record or note in the documents.  It is highly unlikely that the doctor would omit to record such an important complaint if he had been informed about it (as the applicant so alleged).  The only reasonable and logical conclusion one can draw from this absence of record of back pain is that the applicant did not say or indicate anything about the back pain to the doctor at the material time, and the reason for this lack of complaint is that the applicant did not suffer from any form of back injury as alleged by him.

Subsequent diagnosis at Tuen Mun Hospital

34.  Following the first attendance on 19 January 2009, the applicant visited the Accident&Emergency Department of TuenMun Hospital again on 22 and 29 January 2009 and on 5 February 2009.  However, like on the very first occasion, medical notes of 22 January 2009, 29 January 2009 and 5 February 2009 did not mention any back pain complaint raised by the applicant.  Thus, even if the doctor had omitted to record the first complaint about back pain on 19 January 2009, the chances that the doctor would also omit to record such a complaint (if it had been made) in the subsequent medical notes is almost nil.  Again, the logical conclusion is that the applicant did not make such a complaint to the doctor at all.

35.  If the applicant had indeed suffered back pain at the material time as a result of the accident, I see no reason why he did not raise such a complaint to the doctor on so many occasions.  This gives a very reasonable inference that the applicant did not in fact suffered any back pain at that time and his back pain was not caused by the accident.

Admission to Pok Oi Hospital on 7 February 2009

36.  On 7 February 2009, the applicant attended the Accident & Emergency Department of Pok Oi Hospital.  The applicant testified that he sought medical attention at that time because of his back pain and eye injury.  The applicant was also accompanied by his child.  He was admitted to the Department of Medical and Geriatrics of Pok Oi Hospital for further investigation.  He alleged that he had informed a doctor there about his back pain, and in particular, his child explained the back pain to the doctor.  The applicant even said that he had his child repeated the complaint of his back pain 2 to 3 times to the doctor, but the doctor ignored the back pain and just concentrated on the eye injury.  However, the applicant said that he did not use Cantonese to complain to the doctor about his back pain this time, because the eye injury hurt him severely causing him unable to talk so much.  The applicant did not use any body language to communicate with the doctor about his back pain either.

37.  A medical report issued by the Accident & Emergency Department of Pok Oi Hospital dated 7 June 2009 confirmed that on 7 February 2009, the chief complaint was headache with blurring of vision of bilateral eyes.  Back pain was not mentioned at all.  Likewise, medical notes on 7 February 2009 were uneventful apart from the eye injury.  There was nothing mentioned about back pain, but rather “no limb problem” was recorded.

38.  It is inconceivable that the doctor in Pok Oi Hospital would also ignore the complaint about his back pain.  The doctor admitted the applicant to the hospital for investigation.  Surely, the doctor would be interested to know any medical condition of the applicant.  It is hard to believe that such a significant complaint would be ignored.  During his stay in the hospital, there must have been plenty of opportunities for him to seek medical treatment for the back pain, talking to the medical staff and seek for help in relation to his back pain.  It is just impossible for such a serious medical condition to be left unnoticed.

39.  Again, the lack of record of the applicant’s back pain condition is totally inconsistent with the applicant’s claim that he had injury at his back because of the accident.

Back pain first recorded on 20 February 2009

40.  The back pain was first noted on 20 February 2009 (ie more than a month after the accident), when the applicant sought medical attention at the Accident & Emergency Department of Tuen Mun Hospital.  This is confirmed by both Dr Wong Chin Hong, expert for the applicant, and Dr Ko Put Shui Peter, expert for the respondent, in their Joint Medical Report prepared for the present proceedings.

41.  As aforesaid, any explanation to such delay in recording the back pain on the medical documents either due to language barrier or the doctor ignoring the complaint is illogical.  After all, if the applicant could communicate his eye injury with the doctor and the eye injury could be so well documented in various medical records, it is just impossible that he or the doctor could not do the same for his back pain.

42.  I accept the respondent’s submission and it is only logical to conclude that the back pain was not related to or caused by the accident.  Otherwise, there is no reason why the applicant did not mention about his back pain on 19 January 2009 as confirmed by the report of Tuen Mun Hospital dated 13 May 2009 or at the subsequent consultations, but only until 20 February 2009.

43.  Moreover, the medical note of the Accident & Emergency Department of Pok Oi Hospital dated 8 March 2009 documented that the applicant had the back pain for a period of 4 weeks.  As pointed out by Dr Ko in the Joint Medical Report, when the back pain had a history of only 4 weeks on 8 March 2009, it could not have been caused by the accident which happened 7 weeks ago on 18 January 2009.

44.  The medical report of the Accident & Emergency Department of Pok Oi Hospital dated 11 November 2009 showed that on 8 March 2009, the applicant’s chief complaint was low back pain radiating to right lower limb, but he “denied history of injury before the onset of low back pain”.  In other words, as pointed out by Dr Ko in the Joint Medical Report, the back pain must have been caused by a new injury subsequent to the accident.

45.  The discharge summary of Tuen Mun Hospital dated 16 June 2009 also mentioned that the applicant started complaining about low back pain after lumbar puncture was done on him, which also indicates that the back pain could not have been related to or caused by the accident.

46.  In sum, with all these medical records against the applicant, I just cannot accept that his back pain was caused by any injury at the accident.

Labour Department’s letter

47.  It is the respondent’s case that it was informed of the accident by the applicant not on 18 January 2009 but in about mid-February 2009.  A Notice by Employer under the Ordinance (Form 2) dated 18 February 2009 was duly submitted by the respondent to the Labour Department after the applicant had informed the respondent about the accident.  If the respondent had been informed about the accident on 18 January 2009, it is inconceivable that the respondent would only submit Form 2 on 18 February 2009 and not shortly after 18 January 2009.

48.  Moreover, the respondent must have obtained the information about the accident and the applicant’s injury from the applicant in order to fill in Form 2.  However, in Form 2, it only mentioned that when tablecloths were washed and when bleaching liquid was added, something splashed into the applicant’s eyes.  The back pain was not mentioned.  There was no reason for the respondent to hide the back injury if the applicant had informed it about this injury.  This document supports that the applicant did not make any complaint about his back injury to the respondent at the material time.

49.  More importantly, when the accident was reported to the Labour Department, investigation must have been carried out, but in a letter dated 2 September 2009, the Labour Department informed the respondent that the back pain may not be related to the accident.  Thus, even the Labour Department had doubt about the back injury after investigation.

My finding

50.  With all these clear evidence from the various contemporaneous documents as aforesaid, I find that the applicant’s back injury could not have been caused by the accident on 18 January 2009.  Thus, the respondent is not liable to pay any compensation to the applicant in respect of his back injury.

QUANTUM OF COMPENSATION

Eye injury

51.  According to the medical report of the Department of Ophthalmology of Tuen Mun Hospital, the applicant’s eye injury should be extremely minor as all examination findings during the repeated consultations were unremarkable.  The applicant was last seen on 22 April 2009, his eyes were quiet and clear, and there was no permanent visual disability resulted from the eye injury.

52.  Since the applicant does not have any permanent visual disability and his back pain was not caused by the accident, his loss of earning capacity caused by the accident should be nil.

53.  I therefore allow the respondent’s appeal against the assessment of the Employees’ Compensation (Ordinary Assessment) Board and assess the loss of earning capacity permanently caused by the injury to be at 0%.

54.  In view of my assessment, there will be no compensation made under section 9 of the Ordinance.

Sick Leave

55.  From the sick leave certificates produced, it is clear that some of the sick leaves were granted for eye injury alone, some for back injury alone and some for both eye and back injuries.  In view of my finding, the sick leaves granted for back injury alone cannot be counted.  Those for eye injury alone can certainly be counted, but it is not clear whether those related to both eye and back injuries should be counted.

56.  The respondent submits that in order to save the court’s resources, while contending that the back pain was not related to nor caused by the accident (hence its related sick leave should not be endorsed), it is prepared to concede that 50% of the applicant’s sick leave be counted if both eye and back related symptoms were stated on a sick leave certificate.  As a result, the sick leave period would amount to 44 days in total.

57.  However, I do not find this approach acceptable.  If a sick leave certificate was given for both eye and back injuries, one should assume that the eye injury alone would also warrant the sick leave, unless the contrary is shown.  There is no evidence to say that sick leave would not be granted if it was just for eye injury alone.  Thus, the deduction of 50% is not supported by any evidence.  I am therefore prepared to include those sick leave period granted for both eye and back injuries.  The total period is 66 days.

58.  The compensation under section 10 of the Ordinance is therefore in the sum of $12,672.00 ($7,200.00 x 4/5 x 66/30).

Medical expenses

59.  According to the receipts produced, no medical expenses were in fact paid by the applicant.  Thus, there should not be any compensation under section 10A of the Ordinance.

Advance payment

60.  The applicant has already received an advance payment of $11,604.00 from the respondent.  Credit must be given to this sum.

Total quantum

61.  The total sum that the applicant is entitled to claim against the respondent is therefore in the amount of $1,068.00 ($12,672.00 - $ $11,604.00).

62.  The applicant is also entitled to interest on the sum of $1,068.00 at half of the judgment rate from the date of the accident to the date of the judgment and thereafter interest at full judgment rate from the date of judgment until payment.

CONCLUSION

63.  The applicant’s total award of compensation under the Ordinance is summarized as follows:-

64.  I therefore order that the respondent do pay the applicant a total compensation of $1,068.00 under the Ordinance together with interest at half of the judgment rate from the date of the accident to the date of judgment and thereafter interest at full judgment rate from the date of judgment until payment.

65.  Although the applicant won a small sum against the respondent, he has actually failed in most of his claims.  I am therefore of the view that there should be no order as to costs in such circumstances.  Thus, I make an order nisi that there be no order as to costs in these proceedings.  If there is no further application in relation to costs within the next 14 days, the costs order nisi shall become absolute.