XIE QUYUN v. EASY LIVING PROPERTY MANAGEMENT LTD

DCEC 2705/2016

[2020] HKDC 1246

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2705 OF 2016

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J U D G M E N T

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A. INTRODUCTION

1.  On 7 January 2015 (Accident Date), the 67-year-old Applicant, a female cleaning worker employed by the Respondent, met a traffic accident (Accident) when she was knocked down by a public light bus (PLB) at the pedestrian crossing of Ching Tak Street (southbound) outside Lung Tai House (Place of Accident) in the Lower Wong Tai Sin Estate (Estate).  The Applicant suffered severe multiple personal injuries.

2.  This is a trial of the Applicant’s claim pursuant to the Employees’ Compensation Ordinance (Cap 282)[1] for compensation.  Liability is strenuously contested.  It is denied that the Accident arose out of and in the course of the employment.  The Applicant was represented by her Legal-aid assigned counsel, Mr Victor Gidwani, and the Respondent by counsel, Mr Gary Chung together with Ms Flora Lam.

3.  Apart from the amount of compensation for s 8 (compensation for “employee requiring attention”), the parties, on the last day of trial, agreed to the amount of compensation for s 7 (compensation in case of permanent total incapacity), s 10 (compensation in case of temporary incapacity) and s 10A (payment of medical expenses).

B.  UNDISPUTED EVIDENCE

B.1  Witnesses

4.  Three witnesses were called to give evidence, and their witness statements were admitted as evidence-in-chief. 

5.  The Applicant gave evidence in Kaiping dialect and did not call her son to testify even though her son’s witness statement had been filed and exchanged.  Her son’s witness statement was excluded from evidence.

6.  The Respondent could only call two of the four subpoenaed employees as witnesses, Ms Lau Choi Hung and Mr Leung Shu Cheung.  The other two employees had not answered the subpoenas to give testimony at the trial.  Their witness statements were likewise excluded.

B.2 The Applicant’s routine

7.  Due to her severe injuries, the Applicant had no recollection of the Accident at all.  She was unable to recount what she was doing before the Accident and how the Accident happened.  She could only give evidence on her normal routine before the Accident.

8.  The Applicant’s working hours were from 7:30 am to 5 pm with 1½ hour lunch break from 11:30 am to 1 pm.  The registration of the arrival at and departure from work was at the Respondent’s office at Lung Wai House (Office) where the Applicant clocked-in and clocked-out by signing on a roster sheet and had her photograph taken through an e-face system.  Her usual clocking-in times were around 7:30 am (for the morning session) and 1 pm (for the afternoon session) and the clocking-out times were around 11:30 am and 5 pm.

9.  The Applicant was assigned to carry out cleaning work at a fixed position (梗位) in an area called the “Hei Moon surroundings (禧滿外圍)” of the Estate (Assigned Location) comprising the surrounding areas of 6 residential blocks/houses: (1) Lung Tai House; (2) Lung Cheong House; (3) Lung Fook House; (4) Lung Wo House; (5) Lung Moon House; and (6) Lung Hei House.  The Applicant’s home at that time was at Lung Tai House.  The Applicant’s scope of duty was to empty rubbish bins, clean drains and the flower beds at the Assigned Location.  As for large items of rubbish, these were the responsibility of the Respondent’s general worker (“雜工”).

10.  Every morning, after the Applicant clocked in at the Office, she would then walk to the refuse collection station commonly described as the “Big Station” (大站) (Big Station) situated near and outside Lung Shing House to fetch her cleaning tools such as brooms, garbage shovel, dustpan, black garbage bags and garbage baskets (collectively known as “Tools”) and a trolley cart (Cart).  Twice a day before she clocked out for lunch at 11:30 am and 5 pm, the Applicant would first return the Tools and the Cart to the Big Station.

B.3 The Accident

11.  According to the car camera footage provided by the police, the time of the Accident was 4:18 pm.  There is no record that the Applicant had clocked out from work at the time of the Accident, and she was still wearing her work uniform when she was knocked down by the PLB.

12.  The Respondent played in court, in the absence of the Applicant to avoid causing stress to her, a portion of the video recorded by a car camera containing a recording of the 5 seconds before 4:18 pm when the Applicant was hit by the PLB.

13.  Due to the relatively poor quality of the footage, I was not able to see whether the human figure shown in the video was the Applicant or not.  However, the parties were able to agree that the dark human shadow shown in the video was the Applicant. The footage showed that at 4:18:-

(i)  52, 53, 54:  a dark object was lying in front of the Applicant.

(ii)  55:  The Applicant was bending-down towards the dark colour object.

(iii)  56:  the PLB was approaching very close to the Applicant, who was still in the bending position with a dark colour object in front of her.

14.  Another car-cam footage of the scene of the Accident after the Applicant was already knocked down was not played in court.  A screenshot image of this footage[2] showing the time of the recording as 4:21 pm is included in the Trial Bundle.  This image showed a man lying on the ground next to the PLB, looking at the underneath of the PLB.  Apart from her legs, the Applicant’s body was completely underneath the PLB.  A red polybag was lying on the ground between this man and the Applicant.

15.  Among the black and white photos provided by the police in the Trial Bundle was a picture of a plastic bag in which there were 3 aluminum drinks cans (some of which looked partially crushed)[3].

C. THE CONTENTIONS

16.  In the absence of any direct evidence, the Applicant premised her case on the proximity of the location of the Big Station to the Place of Accident, which the Applicant avers that enables a reasonable inference to be drawn that the Applicant was either on the way to the Big Station or walking across the Place of Accident to go to the Assigned Location to do her work before the Accident occurred.  It is averred that either inference would be sufficient for the Applicant to establish liability against the Respondent by showing that the Applicant was doing work in the course of or incidental to her employment before the Accident.

17.  The Respondent denies that the Accident:-

(i)  Was in the course of the employment on the basis that the Applicant had already completed her work at the time of the Accident after she had returned the Tools and the Cart to the Big Station.

(ii)  Arose out of the Applicant’s employment.  The Respondent had not instructed/allowed/permitted the Applicant to do cleaning work at the Place of Accident.

18.  The determination of these contentions involves an analysis of a mixture of fact and law.  I will firstly discuss the disputed facts below before considering the law.

D.  DISPUTED EVIDENCE

19.  The relevant factual disputes are:-

(1)  Scope of duty: The Respondent disputed the Applicant’s evidence, averring that she had carried out work outside the scope of her assigned duty at the Assigned Location such as picking up long tree branches.

(2)  The location of the entrance of the Big Station.  The Respondent disputed the Applicant’s evidence stating that the entrance of the Big Station was very near to the Place of the Accident.

(3)  The Respondent had a prevailing unwritten practice of allowing workers to cease work from 3:30 pm onwards.  The Respondent contended that since the time of the Accident (4:18 pm) fell within the time of the Respondent’s said convention in allowing cleaning workers to stop work before the 5 pm clocking-out time, the Applicant, by practice, would unlikely have been doing work in the course of the employment when the Accident occurred.

(4)  The Applicant was engaging in an activity for her own purpose at the time of the Accident.  The Respondent contended that the photo of the crushed aluminum cans and the screenshot of a red polybag lying near the Applicant after she was hit, together with the Applicant’s forward-bending motion before the Accident, cogently support the Respondent’s case.  The Respondent averred that the Applicant was likely collecting/carrying and crushing aluminum cans to augment her income (as two newspaper clippings[4] alleged) for her own purpose at the time of the Accident.

D.1 Picking up long branches

20.  Apart from her usual cleaning duties, the Applicant stated that she would sometimes find very long tree branches when she cleaned the flower beds around Lung Moon House.  The removal of these long tree branches was usually done by the general worker.  However, the Respondent did not have sufficient manpower at the material time.  Hence, the Applicant stated that she was required to work at different places (“到處去”), including the clearing of these longer branches which could not fit into the regular-size garbage bags she carried with her.  The Applicant said that in such situation, she would need to fetch a big garbage bin with wheels from the Big Station and take these branches back to the Big Station.

21.  Mr Leung, the Respondent’s general worker at the material time (who was later promoted to the position of a foreman after the Accident), disputed the Applicant’s aforesaid evidence.  He averred that the clearing of heavy items such as long tree branches was the assigned duty of the Respondent’s general workers.  Mr Leung stated that cleaning workers were instructed to inform the foreman whenever heavy items such as long tree branches were required to be removed.  The foreman would then assign general workers to clear them.

D.2 The location of the entrance of the Big Station

22.  It was not in dispute that the Big Station was near Lung Shing House, which was close to the Place of Accident. The dispute between the parties was the location of its entrance.

23.  At the trial, the Applicant was not able to identify the location of the entrance to the Big Station from the coloured copies of the Google map and Google street view of the Assigned Location.  Nonetheless, she was able to give a vivid description of it, sometimes assisted by hand gestures.

24.  The Applicant described the Big Station as a structure covered by a green colour tarpaulin, with its only entrance being an iron door/gate.  From Lung Tai House, the route to this only entrance, according to the Applicant, would require the crossing through the zebra-crossing (of Ching Tak Street) to the other side of Ching Tak Street.  The entrance would be seen next to a big banyan tree after walking a few steps towards the right.  The Applicant also stated that outside the entrance was a wide road/pavement (“路”), where not only rubbish carts could get past, but also where rubbish collection vehicles were parked for the loading of rubbish.

25.  This was denied by Mr Leung, who only agreed (in his witness statement) that the Big Station was near Lung Tai House and was the place where the Applicant would fetch and return the Cart and the Tools.  In his oral testimony, Mr Leung alleged that since 2014 the entrance to the Big Station at Ching Tak Street was blocked off, it was not accessible either by people or pushcarts.

D.3  Whether the Applicant had stopped working at the time of the Accident?

26.  Since the Applicant had no recollection of the Accident, she was also unable to confirm whether she had or had not returned the Cart and the Tools to the Big Station before the Accident. When Mr Chung cross-examined the Applicant by asking her whether she would agree that she had already put away her Cart and Tools at the time of the Accident, the Applicant answered that even if she had returned the Cart and the Tools, she could not have finished work yet.  She elaborated on her answer by stating that after the returning of the Cart and the Tools, she would usually go around the Assigned Location and be required to carry on with the clearing of rubbish whenever it was found.

27.  As a general worker at the material time, Mr Leung had the same working hours as the Applicant.  Mr Leung referred to an established practice among the cleaning and general staff.  The practice was this: before the 5 o’clock clocking-out time, the cleaners and general workers would have normally stopped work at around 4:15 pm or even earlier if they could finish work earlier.  Between 4:15 pm and 4:45 pm, the workers, after returning their carts and working tools to the Big Station, would not have been required to stay at the Big Station but were free to do their own things.  Mr Leung further stated that 15 minutes before the clocking out, ie at around 4:45 pm, the workers would be getting ready for the clocking out (“等放工”).  Under cross-examination, Mr Leung stated that during the half hour of the permitted rest time from 4:15 pm to 4:45 pm, nobody would bother to clear any rubbish even if rubbish was seen at the vicinity.  The workers would generally leave the cleaning work to the workers doing the next shift.

28.  The Applicant seemed to have no knowledge of such alleged unwritten rules as she adamantly denied under cross-examination that she would have, by this practice, finished work and gone back home at Lung Tai House between 3:30 pm and 4:30 pm.  She denied that she would have ever gone home before she was off duty, adding that the security guard at Lung Tai House would have snitched on her were she seen to be returning home before 5 o’clock.

29.  The Applicant reiterated that she would not have stopped working because if there was any more rubbish after she finished cleaning, she would have still been required to clear it before she clocked out.  She mentioned that her foreman at the material time, Mr Lam, would carry out an inspection of her work and had previously reprimanded her for having failed to clean properly.

30.  Ms Lau, the security guard of Lung Tai House on duty during the shift from 3:30 pm to 11 pm, stated that she would normally see the Applicant return to Lung Tai House (where the Applicant lived) between 3:30 pm and 4:30 pm, and leave Lung Tai House carrying bags of trash and rubbish in a push cart.  The Applicant was wearing her work uniform during this time.

31.  Ms Lau, however, did not see the Applicant return home on the Accident Date.

D.4 Was the Applicant doing something for her own purpose at the time of the Accident?

32.  The Applicant vehemently denied any suggestion that she was collecting drinks cans for sale before the Accident.  Emphatically, she told the court that albeit having previously been offered cardboards and drinks cans by a restaurant near the Estate’s bus-stop, she told the person that she would only take them away as rubbish rather than collect them for resale.

33.  She said the red polybag found at the scene of the Accident was not hers.  The Applicant said that the colour of the bag which she used to keep keys and a bottle of water while at work was dark beige in colour.

E.  EVALUATION OF THE WITNESSES

34.  In evaluating the credibility of the witnesses, I will be guided by the undisputed principles as follows:-

(1)  Objectively, whether a witness’ testimony is inherently plausible or implausible;

(2)  Whether that part of his testimony is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)  Whether 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. Regard may have had to a witness’ motive for deliberately not giving truthful testimony; and

(4)  The demeanour of the witness.[5]

35.  In this trial, I was most impressed by the evidence of the 73-year-old Applicant.  Notwithstanding the undisputedly traumatizing Accident that has caused her severe and debilitating injuries, I found that the Applicant, as Mr Gidwani rightly stated, performed admirably well throughout the course of the testimony that lasted most of the first day of trial.  I find the Applicant gave evidence in a straightforward manner.  She was able to use hand gestures to help explain her evidence (such as when she described the place where the rubbish collection vehicle was parked outside the Big Station), and raised her tone when she wanted to be emphatic (for example when she adamantly denied Mr Chung’s suggestion that she could go home between 3:30 pm and 4:30 pm).

36.  Given the Applicant’s age and her condition after the Accident, it is not surprising, in my view, for the Applicant to have given at times some seemingly ambiguous, and sometimes contradictory evidence.  Having carefully observed the Applicant’s demeanour in court, I am satisfied that the Applicant was a credible witness.  I find that she was trying to do her best to answer the questions Mr Chung put to her during cross-examination with candour.

37.  When assessing the credibility of the Respondent’s witnesses, Ms Lau and Mr Leung, I should bear in mind that they were still the Respondent’s employees at the time of the trial.  They had a motive to give evidence in favour of the Respondent.  On the whole, I found the evidence of the Respondent’s witnesses to have been less straightforward than the Applicant’s.

38.  In the circumstances, should there be any differences of evidence between the Applicant and the Respondent’s witnesses, I prefer the Applicant’s evidence, and will make findings of the disputed facts accordingly.

F.  THE LAW

F.1  The statutory deeming provisions

39.  Section 5: Employer’s liability for compensation for death or incapacity resulting from accident:-

“(1)  Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.

…

(4)  For the purposes of this Ordinance

(a)  an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment;

(b)  an accident to an employee shall be deemed to arise out of and in the course of his employment, notwithstanding that the employee was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the employee for the purposes of and in connection with his employer’s trade or business; …”

F.2  The correct approach

40.  By the industry of counsel, I have been provided with a large number of authorities on s 5 claims (or the UK’s equivalent of s 5) both from the UK and Hong Kong, concerning myriads of situations in which employees met the accidents.  They ranged from accidents met by crew members on return to their ship (such as the drowning of a seaman on returning to the ship after having gone out to buy necessaries for himself and spent some time in drinking[6]); a traffic accident on the public street or road met by a crew member while out of the boat for the dinner[7]; or when a prison officer fell off of his motorcycle on the way back to the detention camp after dinner[8]; or when an employee was knocked down by a bus after she got off from the wrong bus and when crossing the street to get into the free bus provided by the employer[9].

41.  Every case has to be decided on its own facts.  The above decisions are therefore of limited use to me.  To properly understand the established principles, I consider that the Hong Kong Court of Appeal decision of Leung Hak Chai v Lamma Transportation Co Ltd[10] suffices, as it provides a comprehensive analysis and discussion of the correct approach applied when determining a claim under s 5.  The principles are as follows.

42.  First, the burden rests on an employee claiming compensation to prove that the personal injury on which he makes his claim is one caused by an “accident arising out of and in the course of the employment”.  The claimant is required to show with reasonable clarity that the accident did actually come from the employment: Leung Hak Chai at §16.

43.  Second, the operative s 5(1) invoked two distinct and separate concepts of and accident ‘arising out’ of and ‘in the course’ of the employment.  ‘In the course of’ a man’s employment related to time conditioned by reference to the man’s service while the words ‘out of’ related to causality: Leung Hak Chai at §§32-35.

44.  Third, consistent with the series of deeming provisions in s 5(4), a two-stage approach should be adopted, with flexibility, by inquiring (1) whether the injury by accident was sustained in the course of the employment, and then, if it was, asking the next question (2) whether it was an injury arising out of the employment: Leung Hak Chai at §§35-36 and 48-51.

45.  Fourth, once the judge is satisfied the injury by accident was sustained in the course of the employment, the deeming provision will apply to deem the accident to be one arising out of the employment, unless there is evidence to the contrary: Leung Hak Chai at §37.

F.3 Stage 1: the ‘in the course of employment’ requirement

46.  This requirement looked to a temporal connection between the injury and employment, the connection was with the ‘employment’ and not the ‘work’.  The employee does not have to be working at the actual time the injury is sustained and may temporarily not be working, if the engagement of the activities is part of or incidental to the employee’s service, since (leaving aside exceptional cases where they might be expressly prohibited) they are things that employers will generally permit an employee to do during their work hours.  There were cases where an employee was required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extended over a number of daily periods of actual work, the whole period of the undertaking constituted an overall period or episode of work: Leung Hak Chai at §§39-43.

F.4 Stage 2: the ‘arising out of … the employment’ requirement

47.  Once the first stage of the inquiry has been answered in favour of a claimant to deem the accident to have arisen out of the employment, the judge will next determine the question of whether there is evidence to the contrary to displace the deeming provision. Absent a situation in which the acts of the employee might reasonably be prohibited, those acts are incidental to the employment and an accident happening to the employee whilst doing those acts would be one which arises out of the employment: Leung Hak Chai at §§54-58.

G.  FINDING

G.1  Whether ‘in the course of employment’?

48.  There is no issue that the Applicant’s personal injury was directly caused by the Accident.  In the first stage of the inquiry the Applicant is required to satisfy this court, on the balance of probabilities, that the occurrence of the Accident was in the course of the employment.

49.  There is no direct evidence as to what exactly the Applicant was doing before she was hit by the PLB.  There is however undisputable evidence that the Applicant had not clocked out from work. Thus, prima facie, she was still at work when she was hit by the PLB.

50.  The question is therefore whether she was doing things which she might reasonably be employed to do or whether she was doing things outside the scope of her employment.  Notwithstanding the Applicant’s equivocal response under cross-examination as to whether she had returned the Tools and the Cart to the Big Station when the Accident occurred, I believe that the Applicant, given the severity of her injuries, would unlikely be able to recall this matter.  I therefore disregard what she said in court about the return of the Tools and the Cart.

51.  First and the foremost, I find, based on the undisputed evidence that the Applicant’s Tools and Cart were not found at the scene of the Accident that it is more likely than not that when the Accident occurred, the Applicant had already returned her Tools and the Cart to the Big Station.  However, the returning of the Tools and the Cart is not determinative of whether the Applicant was or was not doing work in connection with or incidental to her employment as, according to Leung Hak Chai (at §41), an employee does not have to be working at the actual time the injury is sustained.

52.  Further to my evaluation of the credibility of the witnesses in Section E above, I’d be inclined to reject Mr Leung’s evidence as to the alleged convention of the Respondent to permit workers to stop work as from around 3:30 pm onwards.  There is no evidence corroborating this alleged practice.  The so-called unwritten rule, in my view, is undoubtedly adverse to the Respondent’s interest.  I find it inherently unbelievable.  I accept Mr Gidwani’s closing submissions that Mr Leung’s evidence is irrelevant at best, and unreliable at worst.  Since Mr Leung had not yet been promoted to being a foreman, but only worked as a general worker at the time of the Accident, he was not charged with any responsibility to supervise the Applicant’s work.  The Applicant’s foreman was a Mr Lam, who had not attended court to testify.  Even if Mr Leung himself and other workers might have practised a habit of refusing to work about an hour before clocking out, Mr Leung, as a general worker at the time, did not have the capacity or authority to speak on the Respondent’s general policy.  The cleaning of the Estate is an on-going task.  I do not find it credible that the Respondent would have tolerated this kind of practice which would promote laziness among the workers.  Accepting that Mr Leung and/ or other cleaners might have been lazy workers is one thing, believing that they had conducted their work in accordance with such an evidently bad practice is quite another. I disbelieve Mr Leung’s evidence.

53.  Even if I were to believe the prevalence of the alleged practice, I do not accept that the Applicant was one of those workers at the time.  The cleaning job the Applicant was engaged to do was undoubtedly physically demanding especially for her at the age of 67.  I believe that the Applicant engaged in such arduous employment due to financial hardship.  She needed the job, and could not have afforded to lose it by, for example, being dismissed for non-performance.  It is logical therefore that she would have been afraid of her superior (Mr Lam) criticizing her for failing to do her cleaning work properly, which reprimand might lead to dismissal. Equally plausible would also be the Applicant’s fear of being reported on by the security staff were she return home before she finished work.  For these reasons, I accept the Applicant’s evidence that she would continue with her work even after she returned her Cart and the Tools.  It is unlikely that she would dare go home to do other things before she finished work.  In any event, there is no evidence that she went home on the Accident Date.

54.  Since the Applicant worked and lived in one of the blocks at the Assigned Location, she would be logically familiar with the locality, and was therefore able to give a detailed description of the location of the Big Station and its only entrance.  I accept her evidence.  On the other hand, I view Mr Leung’s evidence on the alleged closure of the entrance after 2014 with skepticism.  This is because not only was I unable to find any evidence to corroborate this allegation, but also I found his alleged closure of the entrance lacked details.  He did not elaborate on how the workers accessed the Big Station to fetch the tools and unload rubbish if the entrance the Applicant referred to was allegedly closed. Neither had he stated the location of the Big Station nor explained (as the Applicant clearly had at §24) how the rubbish from the Big Station could have been loaded onto the rubbish collection vehicle.

55.  I also accept the Applicant’s evidence that there might have been occasions when she was required to clear long tree branches when there were not enough general workers around.  The Applicant had specifically referred to the picking up of the long tree branches at the flower beds of Lung Moon House.  Since Lung Moon House (see the discussion on the location of Lung Moon House at §63 below) was closest to a park, the presence of long tree branches was nothing unusual.  Thus, I find the Applicant’s reference to this Lung Moon House further fortifies her credibility about the picking up of long tree branches at Lung Moon House.  In his closing submissions, Mr Chung referred to the monthly and daily roster of workers and submitted that since there were a total of 12 general workers on duty on the Accident Date, it would not have been necessary for the Applicant to go beyond her assigned duties of general cleaning to take up such task.

56.  I agree with Mr Gidwani’s submission that the Respondent simply could not rely on these rosters prepared by Mr Lam who did not testify at trial to prove that the Applicant worked outside her scope of duty.  I attach no weight to the rosters not only they are hearsay evidence, but also due to them being irrelevant in discrediting the Applicant’s evidence.  The Applicant’s case is that there were occasions when she needed to be called upon to undertake task of a general worker due to the shortage of manpower.  I do not think that producing the hearsay rosters for the month of January 2015 is sufficient to discredit the Applicant’s evidence.

57.  Overall, in my view, given the rather heavy tasks the Applicant had, I think there is little likelihood that the Applicant could rest as from 3:30 pm.

58.  I also find that there is insufficient evidence to prove that the Applicant was collecting drinks cans for resale at the time when she met the Accident.  I find the chain of evidence based on a photo of drinks cans and the presence of the red polybag (with no evidence as to its contents, if any) at the scene of the Accident is hardly sufficient to link the Applicant of having picking up of used drinks cans for resale.  Neither am I able to rely on the hearsay evidence contained in the newspaper clippings, bearing in mind in particular that sometimes newspaper reports might have contained inaccurate or sensationalized reports, in making any adverse inference against the Applicant.  The 5-second car camera footage is of such a poor quality that it is simply impossible to make out what the Applicant was doing as she was seen bending forward.  I agree with Mr Gidwani’s closing submissions that the photo of crushed drinks cans and the screenshot of a car camera capture of the red polybag lying on the floor next to the PLB after the Accident, cannot be relied on to prove that the Applicant was engaging in an activity for her own purpose before the Accident occurred.

59.  The facts of the matter are that, just like the fatal accident in Mdm Fan See Yuk v Ocean Tramping Co Ltd[11], nobody actually knew how the Accident happened.  All we know is that the Accident happened within the Applicant’s working hours after the Applicant had returned the Cart and the Tools.

60.  On the whole, I find insufficient evidence was placed before me to enable me to draw an inference that the Applicant had already “unofficially” stopped working or collected drinks cans for her own purpose.  When the Accident occurred, it was less than 45 minutes before her clocking-out time.  Since she had already dropped off her Cart and Tools at the Big Station, I believe that the Applicant would not have been carrying out her regular cleaning duty but would have either been (i) resting or idling; or (ii) walking around the Assigned Location checking if there was any other neglected rubbish that she needed to clear after the return of the Cart and the Tools.

61.  For the reasons I gave in §53 above, I find (i) is unlikely as the Applicant would not have had the courage to cease work before the clocking-out time.

62.  Based on the evidence of the Applicant’s normal work routine that she would have continued to be on the look-out for any rubbish, I think (ii) is a probable situation.  As I do not find any evidence that suggests that she had departed from this routine after the return of the Cart and the Tools, I’d be inclined to draw the inference that before the Accident, she would have, as she had normally done, carried on with the light-duty cleaning.  This work attitude would have likely been borne out of her fear for being criticized by her superior (Mr Lam) or being snitched on by Ms Lau, who would see her.

63.  In my view, the general layout of the Assigned Location further fortifies this analysis.  It is not disputed that the Big Station to which the Applicant would have returned the Cart and Tools to on the Accident Date was near Lung Shing House.  According to the Google Map of the Estate (TB 81-1), Ching Tak Street was the main road of the Estate, dividing the Big Station and the Office to its right side while the entire Assigned Location to its left.  Of the 6 buildings within the Assigned Location, Lung Tai House was located at the top of the map and the remaining 5 buildings were located below one after another in the order stated in §9 above, with Lung Moon House being at the very bottom of the map, next to Morse Park.

64.  The Big Station was located near Lung Shing House, which was located across Ching Tak Street from Lung Moon House, slightly down to the right exactly as how the Applicant had described it.

65.  Bearing this layout of the Assigned Location and the location of the entrance of the Big Station in mind, I find it reasonable to infer that on the Accident Date, the Applicant, after having returned the Cart and Tools to the Big Station, would have, as she had usually done, carried on with her cleaning duties, albeit lighter ones, at the Assigned Location by scouting around for rubbish that might have been dropped onto the ground.  In order to go to the Assigned Location after she dropped off the Cart and the Tools, she would have needed to cross Ching Tak Street and might have likely met the Accident as she was crossing Ching Tak Street.  Thus analyzed, I find that the Applicant was still likely to have been within her employment when the Accident occurred.

66.  For completeness, even if situation (i) might have been the case, that the Applicant was not actively at work, but rather idling or taking the “unofficially” acceptable rest, I consider that, by adopting a flexible approach in accordance with the established legal principles, there was no interruption of employment.  A period of permitted rest time when the Applicant was not temporarily working is deemed to be ‘in the course of employment’: Leung Hak Chai §41[12]. The Applicant was therefore not deemed to have engaged in an activity prohibited by the Respondent.

67.  In the circumstances, I find that the Accident occurred ‘in the course of’ employment.  As stated in Leung Hat Chai (at §54), once the court answers the first stage inquiry in favour of a claimant, the deeming provision of s 5(4)(a) applies.  The Accident is therefore deemed to have arisen out of the employment unless the Respondent has adduced evidence to the contrary.

G.2  The Accident is deemed to have arisen out of the employment - any evidence to rebut?

68.  Once I have found that the Accident happened in the course of the employment, I just need to see if there is any evidence to establish or from which inferences can properly be drawn sufficient to displace the presumption that the Accident did arise out of the employment.  Such requirement for a presumption has been put there by the legislature for the clear purpose of assisting applicants and it cannot be lightly displaced[13].

69.  The Respondent sought to displace the presumption by arguing that there was an interruption of employment by the Applicant doing things outside the scope of her employment[14].  This is based on the contention that the Place of Accident, being a public road, was not within the Assigned Location, and it was therefore suggested that the Applicant left her usual place of employment for her own purpose.  It would not be in the course of her employment[15].

70.  It is established that “the time and place of the accident do not finally dispose of matters for it may be that the course of employment has been interrupted by the claimant performing some act for his own purposes and unconnected with his work.  It is also possible for employment to be extended beyond the usual place and times of work if the claimant is doing something reasonably incidental to his work.”[16]  The key question is therefore whether the worker “is doing something which is part of his service to his employer … it need not be actual work, but it must … be work, or the natural incidents connected with the class of work …”[17]

71.  I have found above at §58 that the newspaper clippings (alleging the Applicant was collecting drinks cans and cardboard to augment her income) and the photo of a bag of crushed aluminum drinks cans did not have sufficient evidential basis to support the Respondent’s allegation.  Such evidence, in my finding, is so speculative that it is not “evidence fit to be left to the jury”[18], and that no reasonable jury can draw the inference contended by the Respondent.

72.  Neither, according to my findings above, can the evidence of Mr Leung and Ms Lau amount to evidence to the contrary.  Quite apart from the fact that Mr Leung was not the Applicant’s foreman at the material time, he admitted that he did not know what the Applicant was doing on the Accident Date.  As for Ms Lau, despite her allegation that she had previously seen the Applicant returning to her home at Lung Tai House after 3:30 pm, it is quite inexplicable that Ms Lau, by coincidence, happened to have not seen the Applicant carrying of this alleged “home-returning” routine on the Accident Date.

73.  I also do not agree with Mr Chung’s contention that the Applicant had exposed herself to a risk not incidental to her employment by the allegation that there was no reason for the Applicant to cross Ching Tak Street (a public road) after she had returned the Cart and the Tools.

74.  As discussed at §63 above, all the six blocks (the Assigned Location) were located across Ching Tak Street from across the Big Station.  Hence, unless there is evidence showing that the Applicant ceased her duty after she returned the Cart and the Tools at the Big Station on the Accident Date, the Applicant would need to cross Ching Tak Street to carry on with her duty that she had described in court, to be on the look-out for rubbish.  The time of the Accident was within the Applicant’s time of work. There was therefore no need for any express order from the Respondent to carry on working as Mr Chung suggested.  During her time of work, the Applicant would have been duty-bound to carry on with her cleaning duty irrespective of whether she had returned the Cart and Tools or not.  When the Applicant ran a risk incidental to her employment and was thereby injured, the risk was inherent in the nature of the employment.  It follows that the Accident arose out of the employment.  It is immaterial that the risk was one which was shared by all members of the public[19].

75.  Having examined the evidence with great care, I am unable to find any evidence of sufficient cogency that justifies drawing inferences from the known facts to displace the presumption that the Accident arose out of the employment.

G.3  Conclusion

76.  For the reasons stated above, I find that the Applicant has proved on the balance of probabilities that the Accident was in the course of and arose out of the employment with the Respondent .  The Respondent is liable to pay employees’ compensation to the Applicant.  I shall next discuss the only disputed item of compensation.

H. SECTION 8 COMPENSATION

77.  Section 8 provides:-

“8.  Employee requiring attention

(1)  Where permanent incapacity which results from the injury is of such a nature that the employee is unable to perform the essential actions of life, without the attention of another person, the compensation payable under this section for and in relation to such attention shall, in addition to any compensation payable under other provisions of this Ordinance, be—

(a)  such amount not exceeding the amount specified in the second column of the Sixth Schedule shown opposite section 8(1)(a) specified in the first column of that Schedule as the Court considers necessary to meet the cost of such attention; or

(b)  an amount of the amount specified in the second column of the Sixth Schedule shown opposite section 8(1)(b) specified in the first column of that Schedule payable pursuant to an agreement entered into by the employer with the injured employee and approved by the Commissioner under this section.

(2)  Compensation under subsection (1)(a) shall be—

(a)  a lump sum payment calculated with regard to the probable duration and cost of the attention; or

(b) (i)  periodical payments, payable at such intervals as the Court may order, to cover periods not exceeding a total of 2 years after the date on which the employee becomes entitled to receive compensation under section 7; and

(ii)  if on the expiry of the period of 2 years prescribed in sub-paragraph (i) the Court considers that the employee is still in need of attention, such lump sum payment, as the Court may order, calculated with regard to the probable duration and cost of the attention.”

78.  The Respondent no longer disputes the Applicant’s entitlement to the s 8 compensation, and only disputes the amount payable.  Whilst the Respondent only agrees to pay an amount of $86,916, which was supported by the Applicant’s receipted expenses for her stay at the old-age home after her discharge from hospital, the Applicant however advocates for the statutory maximum at the time of the Accident of $462,890.

H.1 Relevant considerations

79.  In Lai Wai Kwong v Yu Kwok Man[20], I set out (at §43) the following guidelines when determining the amount of compensation under s 8:-

“(1)  The kind of help required to enable the injured employee to perform the essential actions of life. The amount of compensation will depend on what kind of help and care the injured requires, which can range from assisting an injured in ambulation only (for example a wheelchair-bound person) to providing all-round basic care such as doing bathing, taking the injured to the toilet, eating or bed turning to avoid bed-sores for a bed-ridden injured.

(2)  The place where the injured receives the attention and care to enable an injured to perform the essential actions of life – at one’s own home or a special care institution.

(i)  If it is one’s own home, compensation can be calculated with reference to the costs of the care provided to the injured. These costs will include the costs of hiring an outside help, such as a care worker as well as the loss of wages incurred by a relative or spouse in giving up the latter’s job to care for the injured employee.

(ii)  In the event that the injured is cared for in an institution, the costs of such a care home provided that s 8(3) is not infringed.

(3)  The estimated life span of the injured employee.  Obviously, the longer the life span, the larger will be the amount needed for the care and attention for the injured employee.”

80.  Before examining the kind and extent of care and attention the Applicant needs for the purpose of assessing the appropriate amount of the s 8 compensation, it is necessary to briefly discuss the degree of the Applicant’s permanent incapacity.  I believe there is no dispute that the injury has, by large measure, adversely impacted her ability to perform the essential actions of daily life.  The key issue is the extent of such impact.

H.2 The Applicant’s injuries and the impact on her daily life

81.  The Applicant was examined by Dr Koo Chia Gee George, the single joint urological expert, and jointly by the orthopaedic experts, Dr Kong Kam Fu James and Dr Law Kwong Chin, respectively on 16 July and 2 August 2018, and their respective expert reports are dated 26 July and 29 August 2018.  These expert reports were admitted as agreed evidence.

82.  It will be useful to set out from Dr Koo’s report the relevant passages which give a comprehensive summary of the Applicant’s multiple injuries caused by the Accident:-

“4.  After clinical and radiological examinations, she was found to have sustained disastrous multiple injuries:

▪  Hypo-volaemic shock

▪  Shear unstable fracture of the left hemi-pelvis with large open wound in perineum

▪  Abdomen: Haemo-peritoneum from ruptured spleen; left retroperitoneal haematoma and Complete rupture of the Bladder

▪  Head: Acute subdural haemorrhage, Glasgow Coma Score of 12/15

▪  Chest: Multiple ribs fracture; small left pneumothorax; and Heamothorax

▪  Spine: C 1/2 subluxation and multiple lumbar spine fractures

▪  Lower limbs: Large open wound at the perineum; full thickness deglove injuries to the right buttock, posterior thigh and left foot

▪  Upper limbs: Skin laceration at the forearm with partial flexor muscle torn, and

▪  Teeth: broken two upper right incisors

5.  Multiple operations were needed and performed at QEH by the surgical and orthopaedic teams. A total of 17 operations by the surgical teams and 10 operations performed by the orthopaedic team …

6.  She was hospitalised at QEH for about 4 months until 11 May 2015.

7.  She was then transferred to Kowloon Hospital for rehabilitation and discharged to a private nursery (sic) on 26 May 2015…  She has residual permanent weakness of her right leg with right foot drop and mal-union of the fractured pelvis.  Although she could take slow short walk with strong assistance, most of the time she is wheelchair bound.”

83.  In the urological expert report, Dr Koo found at §24 that the most serious injuries were “ruptured spleen requiring splenectomy; unstable multiple fractures of the pelvis requiring surgical stabilisation and repeated retro-peritoneum packing and internal iliac artery embolization to stop bleeding; major traumatic rupture of the bladder and massive contusion to the perineum”.  Dr Koo opined that it is likely that Applicant will permanently suffer from continuous and uncontrolled urinary leakage (at §29).  Conservative management by the use of diapers was recommended.  Dr Koo opined that an occupational therapy expert assessment be made to assess the cost of the Applicant’s nursing care and nursing needs.

84.  Since the joint orthopaedic experts seem to have mainly directed their discussion on the percentage loss of earning capacity in relation to the Applicant’s various orthopaedic injuries, I am unable to find much assistance from their joint report.  The only particular part that should be mentioned is the reported significant findings (in italics) under “Physical Examination”:-

“44.  Gait: Pushed into room in a wheelchair. Could walk in a slow limping gait unaided. Could only stand on either side single-legged transiently with hand support. Could sit with stability and rise with hand support.

45.  … Wearing diapers …

46  …

47.  Lower Limbs: Shorter left lower limb. Thinner left thigh and calf muscles … Diminished sensation in both lower limbs …

48.  … Stiff ankle in drop foot and equinus manner.”

85.  According to the Applicant’s evidence in her witness statement, she said that after she was discharged from the care home in July 2016, she was mainly taken care of by her son and daughter-in-law.  Later, when the daughter-in-law resumed her part-time work, her son did casual work in order to take care of her.

86.  Since she has become wheelchair-bound, the Applicant cannot go to parks or market.  Even at home, she can only go to the toilet with the assistance of a walking frame.  She depends on her family for all her daily activities such as cleaning, washing clothes, cooking and shopping.  She could only do basic personal washing herself.  She said her brother would come every now and then to wash her feet. She could only drink but could not eat on her own.  She needed somebody to be present at home all the time due to her tendency to lose her balance and fall.

87.  Based on the unchallenged medical expert evidence and the Applicant’s evidence, which I accept, I am satisfied that the Applicant, despite her remarkable recovery, has been and is still suffering from a permanent incapacity that renders her largely dependent on the care and attention of another person to enable her to perform the essential actions of life.  Whilst the Applicant has retained a limited degree of self-care, I do not accept Mr Chung’s contentions that there is no need for constant care and attention, and reject his submissions that her inability to perform is only restricted to domestic or household chores.

88.  There is no dispute that the Applicant is wheelchair-bound and will suffer from urinary incontinence for the rest of her life.  Her ambulatory function has been severely restricted.  She will be permanently dependent on others for the essential actions of life such as eating, bathing, and the occasional outdoor activities such as attending medical treatments.  Evidently, I observe that on both occasions when she was examined by the urological and the orthopaedic medical experts, she was brought to the examination in a wheelchair by her son. Notwithstanding the remarkable fortitude the Applicant has demonstrated in the course of her testimony, which led me to believe that she had been trying very hard to lead an independent life, I find, based on the medical evidence, that she cannot reasonably be home by herself particularly due to her tendency to fall over when she needs to go to the bathroom.

89.  In the circumstances, I find that she will require care and help on a full time basis for the rest of her life.  In assessing the amount, I do not think it is necessary for the Applicant to adduce evidence of the actual loss of earnings of her son or daughter-in-law as Mr Chung contended.  Despite the absence of any evidence from an occupational therapist to assist me as to need and the costs of future care, I consider that I am able to assess the costs of the attention with reference to the reduced income incurred by the family member (mainly the son and the daughter-in-law) as a result of the re-arrangement of the family carer’s work pattern or schedule to provide care to the Applicant and the costs of hiring an outside help when it is not practicable for a family member to provide such help.  I find this seems to be the case.  I find that at the very least, the Applicant would need to have a part-timer care worker to help her with the essential actions of life when her family member is not available to provide such care to her.

90.  In considering the reasonable duration for such need, and given the resilient character of the Applicant she has clearly demonstrated at the trial, I believe that the Applicant’s life expectancy may reasonably be of a further 10 to 12 years.  The remaining amount of $375,974, having deducted the sum of $86,916 for the expenses of the care home (see §78), will only leave an annual sum of $37,597 (for 10 years) or $31,331 (for 12 years) available to the Applicant to meet such purpose.  This amount is modest by any measure.  In the circumstances, I consider that it is reasonable to allow the maximum award, and I so order.

I. SUMMARY OF QUANTUM

91.  The total amount of compensation is therefore as follows.

Section 7	$389,591.52
Section 8	$462,890.00
Section 10	$155,836.61
Section 10A	$14,100.00
Sub-total	$1,022,418.13
Less sick leave payment	$21,254.25
Net award	$1,001,163.88

92.  Mr Gidwani has abandoned his submission made in his opening for interest to be awarded at judgment rate.  Hence I award the usual interest on the net sum at half the judgment rate from the Accident Date.  I therefore enter judgment in favour of the Applicant against the Respondent for the total sum of $1,001,163.88 at half of the judgment rate from 7 January 2015 to the date of judgment, and thereafter at the judgment rate until payment.

93.  I further make a costs order nisi pursuant to O 42 r 5B(3) of the Rules of the District Court that the Respondent do pay the costs of these proceedings including certificate for counsel, to be taxed if not agreed.  The Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

94.  Lastly, I wish to thank Mr Gidwani and Mr Chung for their able assistance.