LAU HOI MING v. KWOK CHUEN KEE CO LTD

DCEC 1308/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1308 OF 2011

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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Introduction

1. This application is for employees’ compensation for the injuries the Applicant alleged to have sustained in the course of employment of the Respondent. Both liability and quantum are in dispute.

The Applicant’s Case

2. The accident took place on 16 September 2010 (“the Accident”). At the time of the Accident, the Applicant was 50 years old.  He had been employed by the Respondent as a transportation worker for 16 years since 1993. He was working on average 6 days a week and for $530 per day.

3. On the day of Accident he met with other workers in Shanghai Street and proceeded to Mei Foo in a truck together with a crane and an escalator on board. After arriving at Mei Foo near the bus stop as shown in photographs [p 127], they started to unload the escalator from the truck. The Applicant climbed into the truck and buckled the hook of the crane with the escalator for it to be transferred to smaller conveyance. Normally after he had checked that the load was properly hooked onto the crane, he would give signal to the driver who would then lift the load. Unfortunately, on this occasion the driver lifted the escalator before he gave any signal. The escalator was lifted and swung to the side, hitting the Applicant in his left shoulder and struck him off the truck. He said he lost consciousness and only found himself in a medical ward of Princess Margaret Hospital (“PMH”) when he woke up. He said that he did not know who had sent him to PMH.

4. He was cross-examined on whether he was unconscious at the time of admission with the Admission Record of PMH [pp185-186]. He said he could not understand the content of the Admission Record and he could not explain why the nurse at the nurse station of A&E Department and a doctor thereat both said that at the time the Applicant was admitted he was conscious and gave information by himself as to how he suffered injuries.

5. He was also cross-examined on his alcoholic problem which he denied vehemently having had any such problem and having been admitted to PMH for alcoholic withdrawal seizure in the morning of 25 August 2011 as against admission records produced at pages 299 and 534. After being shown the admission records, he said he had no recollection of the admission in the morning. He also denied having been admitted again on the same day for head injuries in the afternoon. His first explanation was that he suffered injuries through work, but after being reminded that he had said earlier in evidence that he had not worked since September 2009 and therefore there could not be injuries suffered at work in August 2011, he then said that there was no incident of head injuries. He did not explain why there were such admission records produced. He denied having seen a psychiatrist Dr Tam notwithstanding that Dr Tam’s report had been produced at page 62. He did not agree to the diagnosis of Dr Tam on his drinking problem.

The Respondent’s Case

6. The Respondent’s answer to the application was that the Accident if happened, did not happen as alleged by the Applicant. Mr Kwok, one of the directors of the Respondent gave evidence in court. He said on 16 September 2009 he worked together with the Applicant. Their duty for the day was to deliver 3 weighs to 3 locations. One at Choi Wan Road, one at Chinese University of Hong Kong and the third one was in Tokwawan. After they finished delivering the first weigh to the first location at Choi Wan Road they went out for lunch together.  While walking the Respondent collapsed and fell. Mr Kwok helped him up and let him sit by the road side. After a while, the Applicant regained consciousness and said that he was alright. Mr Kwok however asked him to take half day off for medical check. Mr Kwok said that there was no work at Mei Foo on the day in question.

7. He was cross-examined on the accuracy of his account of the Accident. It was put to him that it could not be at about 1:00pm when he said the Applicant collapsed because the Applicant was admitted to PMH at 11:00am. Mr Kwok said he might have got the time wrong. He said that they might have early lunch after finishing the first job at the first location.

8. He said that the income of the Applicant was about $450 per day. Under cross-examination, he agreed that after a pay raise before the Accident the daily wage was increased to over $500.

Credibility

9. The Applicant has to prove his case to satisfy this court that the Accident did occur the way as pleaded i.e. he was struck off the truck by a swinging escalator hooked to a crane.

Whether the Accident happened as claimed by the Applicant

10. The Applicant in fact gave very little evidence on how the Accident happened. He said he fell unconscious after being struck. From documents and records produced for the present hearing, the Applicant had on different occasions given different accounts for the Accident. For example, the Admission Record of A&E Department of PMH made on the date of the Accident shows that the Applicant had told the doctor that he slipped and fell from a lorry and landed on his left shoulder, he did not mention being struck by the escalator [pp 62-63]. In his statement of account to the Labour Department, he said that he was hit by the escalator on his left shoulder and it was not mentioned that he had fallen off the truck.

11. More importantly, in the joint medical report dated 10 November 2012, the two experts said that the Applicant recalled that he did not slip and fall during the Accident but he had seizure with loss of consciousness. The two experts were of the opinion that subject to eye-witness’ statement, the Accident might possibly be caused by seizure.

12. His counsel Ms Lau submitted that he had lost consciousness when hit and therefore his account of the Accident could not be expected to be precise and accurate. I cannot agree. Such submission was made against the weight of evidence. From the medical notes regarding his admission and his first account of the Accident to medical staff, there was not even one single thread of evidence that he had ever falled unconscious at the time of the Accident. Having heard evidence of Applicant, I find him not credible at all on his account as to how the Accident took place.

Whether unconscious at the time of admission at A&E

13. As mentioned, his assertion that he was unconscious when rushed to PMH was contradicted by the Admission Record of A & E Department. In the Admission Record, not only that the box stating that he was conscious was checked, it was also said that the Applicant himself gave information to the nursing staff on how he had suffered injuries. And further, the doctor attending him also recorded that he gave a brief account on how he suffered injuries. According to the Admission Record, what he had told the doctor was that :

“slipped and fell from lorry today, because of slippery floor, fell from 1 meter high, landed on left shoulder, left shoulder pain, no head injury”

14. There were also remarks stating Mallory Weiss Syndrome.

15. The Applicant refused to accept the content of the Admission Record and insisted that that he was unconscious after the Accident and had never been asked how he had suffered injuries by any medical staff. 

16. From evidence before me, I find that the Applicant was not credible and I find that he had failed to prove on balance of probability that he was unconscious at the time of admission.

Whether he had Drinking Problem 

17. The Applicant denied having any drinking problem, be it drinking dependant symptoms or drinking withdrawal seizure etc. However his drinking problem was recorded not in just one document by one doctor, but by more than one medical record. At page 62, a report prepared by Dr. Tam, a Psychiatrist, was produced. Dr Tam said that the Applicant was referred by PMH to see him for his drinking problem. He set out the history of the Applicant’s drinking career. Dr Tam also noticed the Applicant’ denial attitude. He diagnosed the Applicant to have Alcohol Dependence Syndrome. He made a note that the Applicant refused to receive detoxification treatments. Dr Tam was of the opinion that prognosis was found to be grave in the case of the Applicant as he had already suffered from Mallory Weiss Syndrome, withdrawal delirium (probably withdrawal fit too) and hepatic encephalopathy secondary to alcoholism.

18. In the joint medical report dated 10 November 2012, the two experts set out in some details his drinking problem and his Mallory Weiss Syndrome. It was said that from medical records, the Applicant had developed 3seizures during the stay in the PMH after the Accident, and in fact, the two experts referred to hospital record dated 17 September 2009 showing that the Applicant had history of seizure for over 10 years for about 3 times a month. It was also said that a hospital document showed that the Applicant had orbital fracture in 2007 probably related to alcoholism seizure. 

19. As mentioned in paragraph 5 above, there were two admission records produced at page 299 and 534.  Having viewed the two reports against the explanation ventured by the Applicant, I have no doubt that he had been admitted for having alcoholic withdrawal seizure and hepatic encephalopathy in the morning of 25 August 2011 and for head injury caused by a fall after convulsion in the afternoon.  I notice that the two admissions happened at a time after the Accident. I am of the view that it reflected on the drinking career of the Applicant which he had denied throughout in the witness box. I find the evidence of the two admissions relevant both to his credibility and the issue because the Accident might have been caused by seizure he had had for some years.

20. Further, the Applicant had to some extent admitted in his own witness statement that he was referred to see a Psychiatrist for suspected alcohol related problem during his stay in PMH.  His explanation under cross-examination was unimpressive by saying that he did not compile the witness statement.

21. From evidence before me I find on balance of probability that the Applicant did have drinking problem prior to the time of the Accident despite his denial.

Why he had not worked since the Accident

22. He said he did not work since the accident.  The reason give was to me unacceptable. He said he had been to the Tsuen Wan office of the Labour Department, but he did not see a board showing notices of recruitment, so he did not register with the Labour Department for jobs. I am of the view that even if there was no such board, he could have sought assistance from the staff there at.

Conclusion

23. As mentioned, it is for the Applicant to prove his application. From evidence before me, I find him totally unreliable. He gave several different versions on how the Accident took place. His evasive attitude on his drinking problem was contradicted by medical records. On the other hand, although I do not find the Respondent witness honest and trustworthy, nonetheless, there is no other evidence showing the Accident did take place in the way as alleged by the Applicant.

24.  The application must be dismissed for want of credible evidence as to how it had happened.

Quantum

25. For completeness, I proceed to consider the calculation of quantum.

Section 9/9(1A)

26. I adopt $530 as his daily wages and $13,780 per month as Mr Kwok also agreed under cross examination that the Applicant’s wages was adjusted to exceed $500 a day shortly before the Accident and there was meal allowance of about $30 per day. However, I find the Hong Kong Paper Mills formula not applicable in the present case.  

27. The two experts were of the same opinion that the Applicant should not return to his pre-accident job. Dr Wong was of the opinion that “From the orthopaedic perspective, Mr Lau should be capable of returning to work on his pre-accident job as a delivery worker, but with some reduced work efficiency and capacity…However, considering the concomitant medical problems he had, in particular the seizures, alcoholic cirrhosis and its complications.” [p 81] Dr Chan shared similar opinion in saying that “with the history of seizures, he is not advised to work at height.” [p 82]  In the circumstances, his inability to return to his pre-accident job was not so to speak caused by the Accident.

28. Since the two experts came to different opinion as to the loss of earning capacity, Dr Wong suggests 3% while Dr Chan assessed to be 8%.  I prefer the assessment of Dr Wong after having considered the whole of the joint report in particular their agreed opinion on Residual Impairment and Prognosis. It was agreed that he overall prognosis for Mr Lau’s left shoulder dislocation fracture is fair to satisfactory. He may have some residual pain from time to time as he described upon exertion. Some reduced movement and weakness are likely to be permanent. Functional use of his left upper limb will be impaired mainly in the elevated position.” I am of the opinion that 3% is consistent with such findings.

29. The Applicant was born in 1959 and was 50 years old at the time of the Accident.  Pursuant to section 9, the compensation for loss of earning capacity should therefore be :

  HK$ 13,780  x 72 months x 3% = HK$ 29,764.80.

Section 10

30. The Applicant was given sick leave during the following periods, a total of 487 days.

(1)  from 16^th September 2009 to 5^th January 2011;

(2)  from 17th January 2011 to 20th January 2011;

(3)  from 28th January 2011 to 3rd February 2011.

31. Both Dr. Chan and Dr. Wong considered the sick leave period given to the Applicant was reasonable, and there is no dispute between parties,  the compensation is therefore:

$  13,780  x 487/30 days  x 4/5 = $178,956.27

Section 10A

32. The Applicant had incurred a sum of $4,620 as medical expenses.  Details of which are as follows:

(1)  Medical treatment at Princess Margaret Hospital: $3,900

(2)  Physiotherapy Treatment: $60 x 12: $720

33. His claim under s10A is granted.

34. Summarized below is the amount of Employee’s Compensation awarded in case I am wrong in my findings on liability :

Section 9:	$29,764.80
Section 10:	$178,956.27
Section 10A:	$ 4,620.00
Sub-total :	$213,341.07
Less Advance payment :	$104,250.00
Total :	$109,091.07

Costs

35. On the basis that the Applicant has failed in his application, I make a costs order nisi that the Applicant should pay the Respondent’s costs of this action, to be taxed if not agreed. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations. I also granted Counsel Certificate to both parties. If there is no application to vary this costs order nisi, it will become absolute within 14 days from today.