WAN JINGYI v. HOO CHUN WING t/a KAI CHUN GOOD WELL AND ANOTHER

CACV 105/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 105 OF 2016

(ON APPEAL FROM DCEC 754/2014)

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R E A S O N S   F O R   J U D G M E N T

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Hon G Lam J (giving the reasons for judgment of the Court):

Introduction

1.  At the conclusion of the hearing, we dismissed the appeal with costs for reasons to be handed down.  These are our reasons.

2.  The appellant (applicant below) was an employee of the 1^st respondent, who was a sub-contractor of the 2^nd respondent, who was in turn the principal contractor engaged to replace a glass panel in the building called "MegaBox" in Kowloon Bay.  The 1^st respondent's task involved erecting a scaffolding and installing a piece of canvas measuring some 26m by 14m over the glass panel.  The appellant claimed to have sprained and injured his back in the early hours of 6 November 2012 while he was standing on the scaffolding and pulling up the canvas together with his colleagues.

3.  In the trial of his application for compensation under the Employees' Compensation Ordinance (Cap 282) in the District Court, the only issues were whether the appellant was injured at work as he claimed and, if so, the level of compensation for permanent partial incapacity under s 9 of the Ordinance.  On the former, the trial judge, Deputy District Judge Kenneth K H Lee, rejected the appellant's evidence and found that he had failed to prove he was injured at work as alleged.

4.  The appellant now appeals as of right to this Court on the question of liability only.

The Facts in Outline

5.  To put in context the arguments on this appeal, it is necessary to refer to some of the events on and after 6 November 2012.

6.  The appellant said that while he was pulling the canvas up on 6 November 2012, he heard a crisp "ping" sound, felt immense pain in his lower back, and became aware he had sprained his waist.  He could no longer bend forward and so he stood up.  When a colleague, Fung, saw him standing up and asked, the appellant told him he had hurt his back and they exchanged their positions.  Half an hour later, the appellant climbed slowly down the scaffolding, with a hand on his waist.  When the 1^st respondent saw this, the appellant told him about the accident and that he had severe pain and was unable to move his back.

7.  The 1^st respondent and three of the workmen, including Fung, also gave evidence at trial.  They said, in stark contrast to the appellant's account, that the night in question was uneventful and the appellant did not tell them about any injury or pain at all.

8.  Between 6 November 2012 and February 2013, the appellant continued to work at various sites either for the 1^st respondent or for another company called Tin Sum.[1] In February 2013, the appellant decided to go back to Haifeng, his hometown in the Mainland, to seek treatment because, according to him, the pain had become unbearable.  The appellant said he told the 1^st respondent that he could not continue to work and had to go to the Mainland to seek medical treatment.  The 1^st respondent denied this, and said that the appellant simply sent him a message that he would leave his job to return to the Mainland.  While in the Mainland the appellant had a CT scan done at a hospital on 28 February 2013 which showed L5/S1 disc bulging.

9.  In March 2013, the appellant returned to Hong Kong and from April onwards intermittently worked for the 1^st respondent.

10.  According to the 1^st respondent, on 22 May 2013, the appellant told him he had leg pain and needed money for medical expenses.  When the 1^st respondent pressed him, the appellant said he was injured while working at MegaBox, and wanted compensation.  The 1^st respondent said that he asked the appellant for the details of the accident but did not receive a response.

11.  It is common ground that the appellant first sought medical treatment for back pain in Hong Kong from Kwong Wah Hospital in the night of 23 May 2013.  The triage notes of the Accident and Emergency Department there recorded "sprain back pain" for 2 months with increased pain for a week.  The appellant however left before being treated.

12.  On the following morning, 24 May 2013, he returned to Kwong Wah Hospital.  The triage notes recorded the history as "sprained back [3 months] ago" and lower back pain for 3 months.  He was treated and discharged.

13.  On 27 May 2013, the appellant filed a Notification of Accident with the Labour Department, stating that he was injured at an accident that took place at MegaBox on 5 October 2012.

14.  On 29 May 2013, the appellant went to Caritas Medical Centre.  The triage notes there recorded the history as lower back pain on and off for 4 months and "sprain injury → 2/2013".  The form further reported: "sprain back while lifting heavy object 4/12 [i e 4 months] ago".  He was treated and discharged.

15.  On 1 June 2013, the appellant went to Caritas Medical Centre again and was admitted to the Orthopaedic Department, where he stayed for four days.  The medical record stated:

"Patient claimed he had injury on duty few months ago (alleged date 5/10/12), with back sprain while pulling heavy objects. Back pain spontaneously subsided with normal return to work. He subsequently developed left lower limb radiating pain in recent 2-3 months. ..."

16.  On 11 April 2014, the appellant filed his application for compensation in the District Court, stating that the accident took place on 6 October 2012.  After it was confirmed that the respondents did not in fact start work at MegaBox until November 2012, the appellant amended his application in June 2014 to state that the accident occurred on 6 November 2012.

The findings below

17.  The appellant gave evidence at trial, as did the 1^st respondent and three other workmen who had worked together at MegaBox at the time.  Also in evidence were the contemporaneous medical records, the joint report of two orthopaedic experts, Dr Wong See Hoi (for the appellant) and Dr Ho Ching Lun Henry (for the respondents), as well as a private surveillance report.  The trial judge, after assessing the evidence as a whole, found the appellant's evidence on whether the accident had occurred to be unreliable and not credible.  In rejecting that evidence the judge gave two specific reasons.  The first related to the different dates the appellant had given for the injury.  The judge concluded that the appellant had told the hospitals he had suffered a back sprain injury in February 2013 and found it inexplicable he did not tell the hospitals about any prior pain and stiffness if he had indeed suffered injury in November 2012.  The second reason given by the judge was the appellant's failure to seek immediate medical treatment after the alleged accident.  The judge found it difficult to accept that the appellant would not have sought proper medical care earlier if the accident had occurred as alleged in November 2012.

18.  In contrast, the judge found the 1^st respondent and the other three defence witnesses to be credible witnesses who were "not shaken" under cross-examination, and accepted their evidence. Specifically, based on their evidence he found that (1) the appellant had not informed the 1^st respondent or any co-worker that he had suffered an injury on 6 November 2012; (2) the appellant had worked normally after the morning on 6 November 2012 and not displayed any abnormality; (3) the appellant had told a colleague, Tam, that his leg problem was due to an old injury suffered from playing basketball when he was still at school; and (4) the appellant first told the 1^st respondent about the alleged accident in May 2013.

The grounds of appeal

19.  In the notice of appeal apparently written by the appellant himself, the only contention put forward was that the judge erred in accepting the evidence of the respondents in that:

(1)  he failed to take account of the opinion of the appellant's doctor, Dr Wong, that the appellant's symptoms of back pain and sciatica could have deteriorated after a period of time, until it became unbearable in February 2013;

(2)  he failed to take account of the opinion of Dr Wong that in light of the single level disc involvement, the appellant's condition was likely to have been caused by trauma rather than degeneration; and

(3)  he failed sufficiently to take account of the appellant's evidence that immediately after the accident he returned home and treated himself with ointment and that afterwards he could not bend his back or work normally and could only undertake lighter duties.

20.  There were further grounds advanced by Ms Julia Lau, counsel for the appellant, in her skeleton argument. No explanation had been given why the notice of appeal was not properly amended to raise them, as one would expect given that legal aid for the appeal was granted to the appellant and solicitors for the appellant came on record in July 2016.  We nevertheless heard Ms Lau's arguments in full de bene esse.  For the reasons below, none of the grounds prevailed.

Discussion

21.  In approaching this appeal, it has to be borne in mind that the appellant was seeking to overturn not only a finding of primary fact, but one based very largely on the credibility of witnesses on both sides.  As the appellant did not seek medical treatment immediately or shortly after the alleged accident, there was no contemporaneous documentary record of any accident or complaint.  The appellant's case was that he told a colleague, Fung, and the 1^st respondent about his injury on the night, but both of them, as well as the other two workmen present that night, denied it.  One of them, Tam, testified that the appellant had later told him his leg problem was due to an old sport injury at school, though the appellant denied having said this.  As such the parties' evidence was diametrically opposite.  The judge, having heard them, preferred the evidence of the respondents’ witnesses.

22.  In these circumstances it is well established that the Court of Appeal will not intervene unless the judge's conclusion on the facts can be demonstrated to be plainly wrong.  The appellant has the burden to identify palpable errors in the judge's assessment of the evidence that are sufficiently material to undermine his conclusions.  See: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, §42; China Gold Finance Ltd v CIL Holdings Ltd (CACV 11/2015; 27 November 2015), §§11-24; Yeung Cheung Chun v Wing Shing Caisson & Foundation Ltd (CACV 39/2015; 25 April 2016), §35.

23.  As to the first point in the notice of appeal, the relevant part of Dr Wong's opinion was in essence that the appearance of symptoms two months after the accident was compatible with the development of the disc problem which was gradual in time.  The short answer to the appellant's point is that there is nothing to suggest the judge ignored this piece of evidence.  The judge did not conclude that the appellant must have been under great pain since the alleged accident in November 2012 by extrapolating backwards from the appellant’s condition in February 2013.  Instead he relied on the appellant's own evidence in concluding that he was suffering from severe pain well before February 2013.  In the judgment below at §34, the judge said:

"... I find it difficult to accept the argument that the applicant had only given the month of February (or March 2013) because his pain was at its worst at that time. According to the applicant's evidence, his pain had never been mild. The applicant told the court that the pain was like fracture and he could not bend his back after the accident. The pain became more and more severe and eventually radiated to his legs and he found it difficult to walk."

Paragraphs 35 and 42 of the judgment below similarly show that the judge took into account the appellant's own evidence.  Further, in the appellant's pleading, it was averred that from November 2012 to February 2013 he had "persistent back pain which had radiated to his lower limbs, especially his left leg".

24.  Nor is Dr Wong's evidence in our view probative of the appellant's case.  All that he said was the appearance of symptoms later was "compatible" with an injury two months earlier.  This cannot be elevated to an opinion that the appellant's symptoms as evidenced in the CT scan in February 2013 were probably caused by the alleged accident in November 2012.

25.  As regards the second point in the notice of appeal, there is, in our view, again nothing to show that the judge failed to take this piece of opinion evidence into account.  In the relevant part of the report, Dr Wong in essence said two things: first, the appellant was suffering from left sciatica with disc prolapse; and, secondly, it was likely to be accident-based rather than caused by degeneration because only a single disc level was involved. 

26.  As to the former, the judge did not actually accept Dr Wong's diagnosis.  The judge was impressed by the evidence of Dr Ho, the respondents' expert, who did not consider there was any compression of a spinal nerve root.  Dr Ho's reasons included that the reduced sensation involved the whole left lower limb (rather than a well-defined dermatomical region in the left leg); there was generalized mild weakness of both lower limbs (rather than in the plantar flexion of the left big toe); there was normal ankle reflex on both sides; the MRI scan in July 2013 only showed mild bulging of the L5/S1 disc, with no narrowing of neuroforamina and no compression of nerve roots; the lateral X-ray of the lumbar spine taken on the day of the joint examination showed normal lumbar lordosis, which indicated the absence of muscle spasm in the back; and the surveillance video confirmed that the appellant's normal daily activities were not affected and the movements of his back and lower limbs were unrestricted.  Dr Ho took the view that if the appellant had indeed been injured in the back in the alleged accident, it was injury to soft issues, i e his lower back muscles. 

27.  On the evidence, it was plainly open to the judge to prefer, as he did, the opinion of Dr Ho on the appellant's condition; nor has the appellant argued to the contrary.

28.  As to the second part of Dr Wong's opinion, the judge did not in fact conclude that the appellant's condition was caused by degeneration rather than trauma.  He did not identify, nor was it his duty to find, a definite cause for the condition.  All that he held was that the appellant failed to prove it was caused by an accident at work at MegaBox as he alleged, and that the appellant had told Tam that his leg problem flowed from an old sport injury sustained in his school days.  On the findings of the judge, the condition could have been caused by some other trauma, for which the respondents were not shown to be responsible.  There is no basis to suggest that the judge failed to take account of the evidence as argued.

29.  As to the third point in the notice of appeal, the evidence in the appellant's witness statement[2], adopted as his evidence-in-chief, was that after he returned home from the site of the accident and treated himself with medical ointment, he could not bend his back or work normally and could only undertake lighter duties such as tidying up the work sites.  There is no evidence however that the appellant was actually given any lighter duties by his employer after November 2012.  Indeed, under cross-examination, when explaining the discrepancies in the dates he had given for the injury, the appellant said he told the hospitals that he suffered great pain in February 2013 after having to lift heavy objects.  In re-examination, he also said that all along up to February 2013 he had been required to lift heavy things.  The medical records suggested that the appellant told the medical staff at Caritas Medical Centre that he had returned to "normal" duties after the alleged accident.

30.  In our view, the judge did not fail in any way to take the relevant evidence into account.  At §8 of the judgment below, the judge referred to the appellant's evidence that he applied ointment and Chinese medical plaster to ease the pain.  At §42, the judge referred to the fact that the appellant nevertheless remained unable to bend his back and that his work still required great physical strength.  In the light of the evidence, the judge was entitled to reject the implicit assertion in the appellant's witness statement that he was given lighter duties after the alleged accident, and to go on to find his whole assertion improbable.

31.  Ms Lau further advanced the argument, not contained in the notice of appeal, that the judge erred in reading the history recorded in the medical notes out of context.  She argued that the appellant was simply telling hospital staff when the pain was at its most severe, rather than when the accident and injury took place.  The judge had dealt with this at §34 of his judgment which has been set out above.  There is no valid ground to impugn the judge's rejection of the appellant's explanation.

32.  Ms Lau further submitted that the judge had "obviously" failed to take account of relevant evidence in the form of two letters written by the 1^st respondent to the Labour Department in June and July 2013 respectively in which the 1^st respondent stated that the appellant had told him on 22 or 23 May 2013 that he had been injured while working at MegaBox.  The argument is that, had the judge considered the letters, he would not have found that the appellant had given a different date of the injury to the hospitals at around the same time.

33.  We do not accept this argument.  The judge was plainly aware that, in May 2013, the appellant was saying to some others that the accident occurred at MegaBox in October 2012.  This was what the appellant stated in the Notification of Accident dated 27 May 2013 sent to the Labour Department, to which the judge referred in §36(1) of his judgment. Notwithstanding this, the judge concluded that the appellant had told the hospital staff that he sustained a back sprain injury in February 2013. There is nothing that defies logic in this as Ms Lau submitted, because it cannot be assumed that the appellant was being clear, firm, consistent and truthful in describing his injury to third parties, for that was the very thing in question.  Although in §36(1) the judge did not refer to the two letters of the 1^st respondent, they were in line with the Notification of Accident.  There is nothing to demonstrate that the judge failed to take any material evidence into account. 

34.  Accordingly we reject Ms Lau's submission that the judge misunderstood the effect of the evidence (namely, the medical notes) or that there was no evidence whatever to support the judge's finding that the appellant had told the hospitals he suffered a back sprain injury in February 2013.

Conclusion

35.  For the foregoing reasons we took the view that no ground had been made out to call for this Court's interference with the findings of fact made by the trial judge.  We also noted that no ground had been advanced directly to impugn the judge's acceptance of the credibility of the respondents' witnesses.  For these reasons the appeal was dismissed with costs.  The issues on appeal being simple, we did not see fit to certify for two counsel.

[1] There was a dispute in the evidence as to whether, while working at Tin Sum's site, the appellant was employed by the 1^st respondent or by Tin Sum, but nothing turned on this either below or on this appeal.

[2] At §31.