PAN CHO MING v. HORNWAY ENGINEERING LTD AND ANOTHER

DCEC 2815/2017

[2024] HKDC 1593

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2815 OF 2017

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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Introduction

1.  The applicant had been employed by the 1^st respondent as fire engineer.

2.  On 28 February 2017, the applicant was injured in the course of the employment.

3.  By these proceedings, the applicant claims compensation under ss 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

4.  The 1^st respondent is disputing both liability and quantum.

5.  Leave was granted by Deputy District Judge David Chan on 24 December 2019 for the 2^nd respondent to join in these proceedings to contest the issue of quantum only.

6.  By my order made on 1 February 2024, the 2^nd respondent was excused from attending the trial.

The accident

7.  The applicant said on 28 February 2017 (“the day of accident”), he was deployed to a housing estate in Wood Road, Wanchai. At about 5.00 pm, his superior Lui Hung Fai (“Lui’) told him to uninstall spray hoses from the ceiling.

8.  He then climbed up a wooden ladder with a water hose pliers in his left hand. He used his right hand to reach out the spray hose, intending to hold the spray hose as support. But when touched the spray hose, he was electrocuted. The electrocution caused his muscle to relax. As his right hand was holding the spray hose which however could not stand his weight due to the relaxation of muscle, his joint was dislocated.

9.  Lui immediately helped him to the ground. He took a rest on the floor and then reduced his dislocated shoulder joint by himself.

10.  After the accident, he went to consult a bone-setter a few times. In the days that followed, dislocation of his right shoulder joint happened several times suddenly even without any big movements or use of force.

11.  On 4 March 2017, he sought treatment from United Christian Hospital due to dislocation of right shoulder joint.

12.  On 13 March 2017, he was examined by Dr Lam Kwok Hang, Edwin who found him to have signs of mild shoulder instability and hypermobility. He was found to have positive sulcus sign, apprehension and a Beigton’s score of 4/9.

13.  Lui was employed by the 1^st respondent since 1 April 2010 and has been in the fire engineering industry for over 10 years. He was the project supervisor at the material time.

14.  He said the 1^st respondent was the sub-contractor the fire facilities works of Shop 2, 18 Wood Road, Wanchai, Hong Kong (“the site”). As was the practice, he would conduct a site inspection with the workers before the commencement of the works.

15.  In the afternoon on the day of accident, he was instructed by the 1^st respondent to go to the site with the applicant and 2 other workers including Lam Ying (“Lam”) in preparation for the commencement of works. It was their first time visiting the site.

16.  Upon arrival, he immediately commenced his assessment of the site including the safety of the environment, whether the existing fire facilities were in working order, whether the existing ducts had to be re-routed, how the fire facilities works were to be proceeded in conjunction with other renovation works and whether anything should be dismantled in order to clear the way for the works. He did not instruct his workers (the applicant included) to do anything.

17.  5 minutes into his assessment, Lam told him that the applicant was electrocuted at the ventilation duct. He immediately asked the electrician whose company was responsible for the electrical works of the site. The electrician told him that there was no electricity supply to the site and that his company was about to apply to the electricity company for the supply. He then climbed up to the ventilation duct and tested the spray hose with a voltage tester. The tester indicated that the spray hose was not charged with electricity.

18.  He then saw the applicant up at the ventilation duct (which was without his permission). He asked if the applicant could come down by himself. The applicant told him that he had been electrocuted and his right shoulder joint was dislocated. With the assistance of Lam they helped the applicant back to the ground. He instructed Lam to drive the applicant to the A&E Department of hospital for treatment.

19.  Lam said it was the first time they went to the site. Upon arrival, Lui conducted his inspection. While he was waiting for Lui’s instructions, he saw the applicant climbing up to a section of ventilation duct that was hanging on the ceiling. 3 to 5 minutes, he heard a scream from the applicant. He asked the applicant what had happened. The applicant replied that he was electrocuted. He immediately told Lui the same. After Lui was told by the electrician that there was no electricity supply to the site, Lui climbed up to check with the applicant. The applicant said that his arm joint was dislocated due to electrocution so he could not come down by himself. Lam and Lui then helped the applicant to the ground. Lui instructed Lam to drive the applicant to the A&E Department of a hospital for treatment.

20.  When he was on the way to the A&E Department of Ruttonjee Hospital, the applicant told him that it would be alright for him to go home to rest. He therefore sent the applicant to his home in Kwun Tong instead.

21.  Having been injured by electric shock is a serious situation. It is a threat to the health if not the life of the injured person. In the case of the applicant, leaving aside the possible injuries that could have caused to the other parts of his body, his right shoulder joint was dislocated as a result. With this in mind, I find it odd that the applicant did not see the need to seek medical attention and treatment after the accident.

22.  At the trial, both Lui and Lam, who are registered electrical workers, said that people who were electrocuted would sustain burn injury. There is no evidence that the applicant had sustained injury of this kind. The only injury that he had was dislocation of right shoulder joint.

23.  Lui said that the electrician of the site told him there was no electricity supply to the site on the day of accident. He also tested the spray hose with a voltage tester which confirmed that it was not charged with electricity. At the trial, he said that according to the regulations, all conductive parts have to be earthed.

24.  Therefore, when there is an electricity leakage, the circuit breaker of the whole building would trip. But that did not happen on the day of accident.

25.  It is Lui’s evidence that the purpose of the first visit was to inspect the site in preparation for the commencement of works. He did not instruct the workers to do anything.

26.  Wong Yiu Wah Donnie (“Wong”) is a director of the 1^st respondent. He said that he instructed Lui and the workers to inspect the site on the day of accident. The actual works were to be commenced on 1 March 2017.

27.  On balance of probabilities, I prefer the evidence of the 1^st respondent’s witnesses to that of the applicant as they are consistent, logical and more plausible. I find as a fact that on the day of accident, the applicant was not instructed to do anything at the site. He voluntarily climbed up to the ceiling without instructions. Neither the ventilation ducts nor the spray hose was charged with electricity. The applicant was not electrocuted when he sustained a right shoulder joint dislocation.

28.  The applicant had helped himself to reduce his dislocated shoulder joint. After the accident, he did not see the need to seek treatment from hospital. Rather, he went to consult a bone-setter instead. He also suffered other instances of dislocation of right shoulder joint after the day of accident. Eventually, he received an operation on his right shoulder on 16 January 2018 which cured his condition. In my judgment, all these show that the applicant had previous experience of right shoulder joint dislocation before the day of accident. That explains why he was able to do a self-reduction on the day of accident. It is more likely than not that the dislocation of right shoulder joint on the day of accident was due to his personal condition.

29.  In the light of my findings above, the injury of the applicant was not caused by an accident arising out of and in the course of the employment under s 5 of ECO. The applicant’s claim must be dismissed.

30.  For the sake of completeness, I shall deal with the question of quantum.

Section 9

31.  The applicant was 32 years old on the day of accident. According to s 7(1)(a) of ECO, the multiplier is 96. The Sixth Schedule of ECO applicable on the day of accident capped the multiplicand at HK$26,070. The Form 9 dated 26 September 2019 assessed the applicant’s loss of earning capacities at 3%.

32.  Mr Leon Ho, counsel for the 1^st respondent, invited this court to adopt Dr Chun’s opinion that loss of earning capacity should be assessed at 0% because the applicant’s right shoulder impairment was due to his pre-existing current shoulder dislocation rather than the alleged accident.

33.  The statutory scheme of ECO was examined by the Court of Appeal in Ng Ming Cheong v Mass Transit Railway Corp [1997] HKLRD 1231. It was held that the legislature’s intent is that assessment of the Board are to be final unless appealed within a limited period of time. Although s 16H of ECO did not state that the certificate shall constitute conclusive evidence of the matters started therein, it did not follow that the evidence could not become conclusive through the appeal procedure not being invoked. As there was no appeal by the respondent employer, the judge ought not to have entertained any expert evidence at the trial. The only evidence before the trial judge as to quantum would have been the certificate and nothing more.

34.  As the 1^st respondent did not appeal against the assessment in the Form 9, the submission of Mr Ho is, with respect, rejected.

35.  Accordingly, the compensation under s 9 is HK$75,081.60 (HK$26,070 x 96 x 3%).

Section 10

36.  After the accident, the applicant was granted sick leave totaling 687 days.

37.  S 10(2) of ECO provides:

“(2) For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

38.  Lam VP (as he then was) in Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD has the following to say at para 28 on s 10(2):

“ … In a nutshell, the correct legal position is this: s. 10(2) sets out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim. The burden is on an employer to rebut that presumption.”

39.  Wong said that on 20 March 2017, the applicant told him that he could resume work. Lui then arranged the applicant to work from 22 March 2017 as normal until 18 August 2017. However, the applicant suddenly disappeared afterwards. On 4 October 2017, he received a call from the wife of the applicant saying that the applicant was arrested in the Mainland for smuggling. On 6 November 2017, he received a message from the applicant telling him that he had returned to Hong Kong. On the following day, the applicant sent him a message asking for forgiveness. In view of the applicant’s past record, he decided not to give the applicant any more chance. The applicant then filed a claim at the Labour Department saying that he was injured at work on 28 February 2017.

40.  Lui said that after the applicant resumed work on 22 March 2017, the applicant worked as before. He did not complain of anything wrong with his right shoulder.

41.  Under cross-examination, the applicant agreed that he did resume work during that period of time and was paid in full. However, he only worked intermittently.

42.  In my view, the fact that the applicant did resume work with full pay from 22 March 2017 is clear evidence that he was no longer temporarily incapacitated. If he was incapable to perform his normal duties, I do not believe that the 1^st respondent would have allowed him to work paying him the full salary. I am satisfied that the presumption under s 10(2) is rebutted.

43.  Given that there was no evidence of any material change of the applicant’s health condition on or around 18 August 2017, I accept Mr Ho’s submission that the applicant should be equally capable to do his normal duties after that day. I believe that the sick leave certificates were given based on inaccurate information provided by the applicant.

44.  For the above reasons, I agree with Mr Ho and find that the period of temporary incapacity should only be from 28 February 2017 to 21 March 2017. As the applicant was paid the full salary from February to August 2017, he is not entitled to any compensation under s 10 of ECO.

Section 10A

45.  In the light of my findings under s 10, the applicant is only entitled to medical expenses incurred from 28 February 2017 to 21 March 2017. His entitlement under s 10A is HK$700.

Conclusion and order

46.  In the result, the applicant’s claim is dismissed in its entirety.

Costs

47.  I make a costs order nisi that the applicant shall pay the 1^st respondent the costs of these proceedings with certificate for counsel, to be taxed if not agreed.

48.  In the absence of any application for variation by letter within 14 days from the date of this judgment, the costs order nisi shall become absolute.