QASIR MEHMOOD v. HUNG WAI KWAN

DCEC234/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 234 OF 2003

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R U L I N G

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1. This is an unusual application. The application of course is one for employees' compensation, where it is said on behalf of the applicant, Mr Mehmood, that on 11 July last year, when he was working on behalf of the respondent, he was injured arising out of and in the course of his employment, and I shall need to describe what is said to have occurred more fully in a moment. The application is unusual because it is one that is brought under Part 2 of Order 29 of the Rules of the District Court, which is that part of the Rules which deal with interim damages in common law actions. In this case, of course, this is an application for employees' compensation, and most applications of this sort are dealt with under the terms of the Employees' Compensation Ordinance itself and the Rules made under it, but it is accepted, and I think rightly so, that notwithstanding that, the court does have jurisdiction under Part 2 of Order 29 of the Rules of the District Court to do what the applicant is asking it to do, which is to award him sick leave payments which are said to be due to him since the date of his injury.

2. What is said by the applicant to have happened is that on this particular day he was standing on top of a container in the course of unloading operations and what he was doing required co-operation between him and a derrick crane operator. Unfortunately, according to the applicant, the crane swung and attached to the crane was a chain and hook, and as that hook was moving, it rapidly made its way towards either his head or his back, and I will return to that in a moment, and he then moved quickly and suddenly in order to avoid being hit, and as a result of that, he fell to the ground, a distance of about 18 feet, and sprained his left ankle.

3. The respondent does not accept any of that and I am going to need to look at the evidence in a little detail so that one can understand precisely how this issue arises. What Miss Lam says on behalf of the applicant is, and I think rightly so, that all she needs to prove is that the applicant was injured and that he was injured in the course of his employment with the respondent. Let me just deal with those elements separately.

4. The basis of his employment is in dispute, but that does not matter for the purposes of the judgment today. What the applicant says, and this is his primary case, is that he had been employed for at least two years and employed continuously by the respondents on the date of his accident. The respondent's case is that he ceased his employment at the end of June and that on this particular day, 11 July, he was employed on a casual basis because the person who had replaced him was unavailable for work that day, and so by special arrangement the applicant was brought in to do his work for the day.

5. That of course does not matter because even if the applicant was only a casual employee, he is entitled to be compensated under the terms of the Ordinance, and there is no issue about that, but I mention it just to demonstrate that this is just one of a number of issues which will ultimately need to be resolved by the trial judge.

6. But the real issue here is whether the applicant has today proved that he was injured in the course of his employment. This is what today's application is all about. If I am satisfied that he was injured in the course of his employment, then that, for all intents and purposes, resolves the matter in favour of the applicant because when one comes to consider the question of quantum, the parties have very helpfully indicated that they would be able to agree that between themselves.

7. What is said on behalf of the applicant as to this material issue appears in the application itself, and this is his case. If one looks at the particulars, to paragraph 3 of the application, the part that matters is as follows:

"At approximately 10 am on 11 July 2002, at Stonecutter's Island Cargo Loading Area, near to berth 8, the applicant was standing on a container on top of another container at a height of about 18 feet from the ground when the hooks from the crane swung towards the applicant too quickly and as a result one of the hooks hit him on the back, which caused the applicant to lose balance and he fell to the ground. He managed to land on his feet but fell onto his left side, causing injury to his left ankle and pain and bruising of the left hip."

8. Following that through, Miss Lam, who appears on behalf of the applicant, then refers me to the Form 2, which was filled in on behalf of the respondent, in particular section D which is a description of the accident, and in particular one of the sub-boxes to section D which is entitled "State whether the accident occurred in the course of work" and there is a choice, "Yes" or "No", and the tick there is "Yes". Starting from there, Miss Lam says this is effectively determinative of the issue, there is the plainest admission on a very important statutory form that the applicant was indeed injured in the course of his work. Just to complete that, the main part of section D is entitled "Describe how the accident happened and state what the employee was doing at the time", that has been completed, quite naturally in Chinese, but I have got an agreed version of this in English, and it says,

"At around 10.30 am on 11 July 2002, employee told his colleague that he sustained sprain injury while transporting goods."

9. This is a rather strange way of expressing an injury that is said to have occurred as appears in the application for compensation itself. But that is one of the difficulties which may well be in the applicant's way at the end of the day.

10. But going on from that, Miss Lam also quite properly relies on the transcript of the proceedings before the Magistrates' Court, which were put in as an exhibit to an affidavit, put in very late on behalf of the respondent. But as things have turned out, Miss Lam started by vigorously objecting to the admissibility of this affidavit and the case is now turning on the very evidence which she was objecting to at the start of the hearing, but there we are. What happened was that the respondent was prosecuted as a result of this accident and the information was laid before the court in this way:

"That you, on 11 July 2002, being the proprietor of an industrial undertaking of container handling at berth 5..."

And then the address is given.

"...did fail to take all reasonable steps to ensure that no person worked on top of a container unless adequate precautions had been taken to prevent persons falling therefrom."

11. And then brief facts were prepared and substantially agreed. I say, substantially, because there were amendments that were made and these are amendments which Mr Chan, who appears for the respondent, relies on. And so paragraph 2 of the brief facts need to be read by me:

"An accident..."

And then there is this amendment which was put it in at the request of the defendant:

"...was reported by injured person which occurred at the above workplace to the worker, Mr Mehmood, who sustained the sprain injury of left ankle. Investigation of accident by Occupational Safety Officer of the Labour Department revealed the following."

And then the important next paragraph, starting with an amendment again at the request of the defendant:

"According to the injured person..."

And then it goes on:

"...on the day of accident, injured person worked as a slinger for hooking or unhooking sling at container top. At the time of the accident, he was working on the container top at a level of two containers' height when the slings from the derrick of the floating barge swung towards him. He could not escape from the swinging slings and thus his head was slightly struck by one of the slings. He lost his balance and fell to the ground for a distance of 5.5 metres. He thus sustained the injury."

12. The matter was then made clear to the magistrate by Mr Lo, who was counsel appearing on behalf of the respondent in the Magistrates' Court. A guilty plea was entered to the summons by the respondent, but Mr Lo said this to the learned magistrate:

"Yes, Sir. First of all, my client makes no admission to what's alleged by the injured worker, but he admits that the system is not safe and that's why the brief facts was amended in such a way. In any event, he admits that the system could be improved."

So what was at that stage being made clear to the magistrate was that the version being put forward by Mr Mehmood was not one that was being accepted.

13. The version that was put forward in the prosecution came from a statement made by Mr Mehmood to the Occupational Safety Officer when he described what I have just read and that description of course included the version that the hook struck him, albeit slightly, on the head, which is another version that was being put forward by him.

14. In resisting this matter, Mr Chan says it is simply not good enough where there are so many versions being put forward on behalf of the applicant that I should come to the conclusion that he is going to succeed in this application when the matter is ultimately heard before the judge. He starts his objection by reminding me of the terms of Order 29, the material terms being that it must be clear to the court, of course on a balance of probabilities, that the plaintiff, or in this case the applicant, is going to succeed at the trial. It is not a question that he is likely to succeed or that he may succeed. (emphasis added) The burden is a clear one, that he must demonstrate to the court that he will succeed.

15. With that in mind, Mr Chan then draws attention to a number of versions and other unsatisfactory features of the applicant's case which should indicate to me, in his submission, that the outcome is by no means certain, even on a balance of probabilities. First of all, there is the version pleaded in the application that he was struck by the hook in the back. There is the version put forward to the Occupational Safety Officer that he was hit on the head, and that was the basis of the prosecution. Reference was then also made to a medical report, and there are several, but the medical report that is relevant is the one dated 9 November from the Caritas Medical Centre where a history was given upon arrival at the Accident and Emergency Department on 11 July, and the account given there to the doctor, or certainly the account recorded by the doctor, was that the applicant jumped from a high place and landed on his left foot. He had left ankle pain then. So there is no description there of how the accident occurred and all that Mr Chan says is that it is extremely curious that if in fact he had been injured in the way that he says he was, that he did not give that graphic description to the doctor, but I will come back to this in a moment.

16. Then there is another matter which is relied on by Mr Chan. It is right to say that in May 2002 the applicant had sustained an identical injury, falling off a container and spraining his left ankle. In the medical examination on this occasion, he explicitly denied having injured his left ankle previously, but now I have got medical evidence which has been put in on behalf of the respondents which clearly shows that he had sustained this injury to his left ankle in May 2002 in identical circumstances. Mr Chan says, why is it that he is denying the existence of an injury which had occurred only two months previously? And what Mr Chan says is that I should be very careful as to what I am prepared to accept at this stage against a background of differing versions, certainly two different versions, one in the application and one to the Health and Safety Officer.

17. So far as the version put forward to or at least recorded by the doctor, I do not think it would be right to lay any particular emphasis on that. These histories set out in medical reports can vary a great deal from doctor to doctor and from case to case, and so I do not think that is something that I ought to hold against the applicant.

18. Then, lastly, reference is drawn to the affirmation put in by Mr Leung Ping-lam - he is the manager of the respondent - where he has reported what a co-worker, who was the person in charge, had told him, and what he told him appears in paragraph 7, where, according to Mr Chow, all that the applicant had told him was that he had sprained his foot and that he was advised to go for a rest. There is absolutely no description or no complaint recorded of the accident, as it now appears and set out in the Notice of Application.

19. And so from all of that, Mr Chan says how can I possibly feel satisfied that when the trial judge comes to decide this matter, that he will feel able to say that the applicant was in fact injured in the course of his employment? As against that, Miss Lam says that may all be very well if one was looking at this matter in terms of an application for damages for personal injury, as a common law action, but here the issue is much more limited. All I have got to be satisfied about is that he was injured in the course of his employment and I have already drawn attention to the matters that she relies on, in particular Form 2 and the transcript of the proceedings before the magistrate. She has also drawn attention to the magistrate's remarks when he came to sentence the defendant - the respondent before me - where he seems to have proceeded on the basis that the applicant had been injured in the course of his work, where at page 3 of the transcript, at just below letter M, he says:

"When you undertake an industrial undertaking, you have responsibility for the safety of your men. You admit that you failed in this regard and as a result, one of your men was injured in work."

That is the material part of it.

20. If that in fact was the learned magistrate's position, I am not entirely clear why it is that he was prepared to accept the guilty plea because it was being made absolutely clear to him that the defendant was not accepting the version that was being put forward by the applicant as set out in the brief facts. That is why there were these amendments which apparently were agreed by the prosecution.

21. So what it comes to is this, that I am not prepared to rely, as Miss Lam invites me to, on the fact of the conviction, because I think that this was hedged about with a lot of qualifications and it had been made absolutely clear to the magistrate that the employer was simply not accepting any part of the respondent's version. And then when one adds to that the different versions as to precisely how this accident happened, I am afraid I am not prepared to say that at the end of the day the applicant will succeed in demonstrating that he was injured in the course of his employment. When I say that, I also have regard to the fact that in Form 2 it was being said that the injury occurred in the course of employment, but that is just one piece of evidence amongst all the other evidence in the case, and again it is significant that it is only at the very last moment, not in her submission-in-chief, that Miss Lam alighted on that particular part of Form 2.

22. I take the view that the evidence here is in such an unsatisfactory state that this is all going to need to be resolved with the assistance of live evidence and cross-examination at the trial, and so for these reasons the application must fail.

(Discussion re costs)

23. I am going to make a slightly different order. I take the view that the respondents, who have succeeded today, should at least have the protection of never having to pay the applicant's costs whatever the outcome, and so it seems to me the better order is to say respondent's costs in the cause.

24. In employment cases, that is usually of very little comfort or consolation to a respondent because so often liability is made out, but in this case there are real issues as to liability, so in that way the respondents, if they succeed, they will get their costs of the action as a whole. If they lose, at least they will have the protection of not having to pay the costs of this application, they will merely have to bear their own costs of this particular application.

25. Certificate for counsel. This order for costs will also include the costs reserved before Judge H C Wong.