NG NING FU v. 王聯權 AND ANOTHER

DCEC 1145/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1145 OF 2013

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JUDGMENT

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Introduction

1.  The Applicant (“Mr Ng”) was employed as a construction labourer at the roof of Yue Shing Court, 12 Tai Chung Kiu Road, Shatin, New Territories (the “Site”).  His direct employer was the 1^st respondent (“Mr Wong”), who was a sub-contractor of the 2^nd respondent, Leader Engineering & Construction Limited (“Leader”), the principal contractor for the chiseling work at the Site.

2.  Mr Ng’s job was to transport construction debris using a wheelbarrow and dispose the same at a designated location within the Site. After loading the wheelbarrow, Mr Ng had to push the loaded wheelbarrow up a makeshift ramp onto a raised platform, before unloading the construction debris down a chute mounted on the platform. The ramp was made of a number of wooden planks placed on top of each other and supported underneath forming an inclined path. 

3.  Mr Ng’s case is that he fell and sprained his back as he was pushing the loaded wheelbarrow up the ramp at around 2:00 pm on 29 March 2012.  Whilst it is not disputed that Mr Ng’s job required him to push a loaded wheelbarrow up a makeshift ramp and that he suffered injury at some point, the respondents deny that an accident occurred at all on 29 March 2012 at around 2:00 pm.  Put another way, the respondents’ case is that Mr Ng’s injury was not caused by an accident arising out of and in the course of his employment.

4.  These proceedings were commenced by Mr Ng to seek employees’ compensation.  The parties have agreed that if liability is established, the total compensation including interest (at 4% from 29 March 2012 to 23 September 2014) under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (the “Ordinance”), after taking into account the advance payments already made to Mr Ng, is HK$154,265.00 (ie outstanding compensation of HK$140,241.00 plus interest of HK$14,024.00).

Issue

5.  The sole issue arising for my determination at trial is whether or not Mr Ng’s injury was caused by an accident arising out of and in the course of his employment.

The witnesses and their evidence

6.  It is common ground that Mr Ng had only worked at the Site for 2 days prior to the alleged accident.

7.  Mr Ng’s evidence was straightforward.  At around 2:00 pm on 29 March 2012 (ie his third day of work), as he was pushing the loaded wheelbarrow up the ramp, one of the wooden planks collapsed when he was about one-third of the way up.  The ramp was about 3.5 metres long. The wheel of the wheelbarrow rolled into the “hole” and the wheelbarrow overturned as it moved along in the forward direction (順勢向前翻側).  Mr Ng’s hands were pulled upward by the handles of the wheelbarrow.  He lost his balance, fell and sprained his back as a result. 

8.  According to Mr Ng, there were four workers carrying out the chiseling work and transportation of debris on the day of the accident including himself.  Two workers carried out the chiseling work at another location.  Mr Ng and a colleague known as Mr Sze were responsible for transporting the construction debris.

9.  No one saw the accident but Mr Sze arrived shortly afterwards.  Mr Ng laid on the ramp as he could not move initially.  After the pain eased about 10 minutes later, Mr Ng spoke with Mr Wong over the telephone to inform him about the accident, who told Mr Ng to go down to Leader’s site office on the ground floor to inform the site representative (“Mr Leung”) about the accident in accordance with normal protocol.  Mr Sze helped Mr Ng to the site office, which involved walking down one flight of stairs, as there was no direct lift from the roof to the ground floor.  After Mr Ng arrived at the site office, Mr Sze went back up to the roof to continue his work. 

10.  Mr Ng was taken to the Department of Accident and Emergency at the Prince of Wales Hospital on the same day for examination and treatment.  He was diagnosed with sprain of back and lower back pain.  Mr Ng was later referred to the Department of Physiotherapy, as well as the Department of Orthopaedics and Traumatology for further management.  Mr Ng was granted sick leave from 29 March 2012 to 14 March 2013.

11.  Mr Ng’s account of the accident and resulting injury is consistent with and supported by the various medical reports before this court, which confirmed that “the mode of injury was compatible with a sprain” and that “patient’s nature and extend [sic] of injury were consistent with the mechanism of injury”, namely, that Mr Ng “had sprained his back while lifting heavy object on 29/3/12 (Injury on duty)”.  Further, the Form 2 Notice of Accident filed by Leader pursuant to section 15 of the Ordinance stated that Mr Ng sustained injury as a result of a fall that took place when he was transporting construction debris using a wheelbarrow at the Site.

12.  Notwithstanding the above, the respondents disputed Mr Ng’s version of events.

13.  Mr Wong’s evidence was that he first learned about the alleged accident when he received a telephone call from Mr Sze shortly after 2:00 pm on 29 March 2012.  Mr Sze told Mr Wong that Mr Ng said he had injured his lower back.  Mr Wong immediately telephoned Mr Ng to find out what happened.  Mr Ng told Mr Wong he sprained his lower back when he pushed the loaded wheelbarrow up the ramp.  As Mr Wong was not present at the Site and did not know the extent of Mr Ng’s injury, Mr Wong asked Mr Sze to accompany Mr Ng down to the site office.

14.  As can be seen, Mr Wong’s evidence up to this point supports the position that the alleged accident did in fact take place.  However, Mr Wong went on to state in his evidence that he had suspicions as to whether the accident took place.  When Mr Ho, Counsel for Mr Ng, asked Mr Wong to explain the basis of his suspicions, his answer was that Mr Ng did not work hard and could have fallen whilst he was not working.  However, when it was put to Mr Wong that he was critical of the accident due to his prejudice arising from Mr Ng’s unsatisfactory performance at work and the fact that Mr Ng had only worked on the Site for a few days, Mr Wong disagreed. 

15.  It is significant to note that when Ms Chan, Counsel for Leader, asked Mr Wong to explain for the second time as to why he had these suspicions, once again his immediate response was that he was unhappy with Mr Ng’s work performance because Mr Ng was lazy and slow.  It was only when Mr Wong was taken specifically to paragraph 7 of his witness statement did he agree with Ms Chan that his suspicions could be explained by the contents therein, namely, that he went back to the Site later in the afternoon on the day of the alleged the accident and found that the ramp was still smooth and stable.  The other workers had also indicated to him that the ramp was not dangerous and could still be used.

16.  According to Mr Leung, he went up to the Site on the day of the alleged accident at around 2:45 pm to 3:00 pm (ie 45 minutes to 1 hour after the alleged accident) and took photographs of the ramp (at pages 52 and 54 of the trial bundle).  However, the wheelbarrow in question was nowhere to be found near the ramp and, upon inquiry, no one indicated that they had specifically cleaned up the scene.

17.  Mr Leung’s evidence was that he did not believe the accident took place because Mr Ng’s trousers were clean at the time and did not look like he had just suffered a fall.  Mr Leung also stated that Mr Ng seemed relaxed and showed no sign of being in pain.  This, he said, was what prompted him to photograph Mr Ng and to go up to the Site to make inquiries with the other workers.  When it was pointed out to Mr Leung in cross-examination that Mr Ng’s trousers looked fairly dirty in the photograph at page 53 of the trial bundle, he backtracked and claimed that he was actually referring to Mr Ng’s top.  This is in direct contradiction to paragraph 7 of Mr Leung’s witness statement where he specifically referred to Mr Ng’s trousers, stating that it showed no trace of dirt consistent with having suffered a fall (尤其是褲子並無任何因跌倒而弄髒的痕跡).  I also disagree with Mr Leung’s comment as to Mr Ng looking relaxed in the photograph at page 53 of the trial bundle.  To me, Mr Ng’s facial expression was one of stress and anxiety, not relaxation.

18.  It is Leader’s case that Mr Ng’s account of how he sustained injury is incredible.  It is pointed out that Mr Ng stated that he first experienced pain in his leg about 2 to 3 days after the accident.  Yet, Mr Ng did not mention his leg pain to the doctor until 9 May 2012, despite having attended the Department of Accident & Emergency of the Prince of Wales Hospital on 5 April 2012.  This, Ms Chan submits, casts doubt on Mr Ng’s credibility.  It was put to Mr Ng that he did not inform the doctor about his leg pain on 5 April 2012 because the accident did not take place.  Ms Chan further points out that Mr Ng’s account of the accident contradicts the results of Mr Leung’s inquiries and the photographs he took of the ramp.

19.  I have examined and considered Mr Ng’s overall evidence, and I find him to be an honest witness.  He gave evidence in a straightforward and cogent manner, and was not shaken in cross-examination. I accept his evidence.

20.  According to Mr Ng, he often experienced pain and numbness in his back and leg after sitting for a while but the pain would ease if he stood for about 10 to 15 minutes.  In other words, the pain and numbness comes and goes.  Hence, I do not find it incredible that despite first experiencing leg pain about 2 to 3 days after the accident, Mr Ng did not mention it to the doctor on 4 April 2012.

21.  As to the results of Mr Leung’s inquiries, I do not find the fact that the wheelbarrow in question was nowhere to be found near the ramp or the fact that no one indicated that they had specifically cleaned up the scene to be of material significance.  There was conflicting evidence before the court as to whether Mr Sze took Mr Ng down to the site office and whether the ramp had been used before Mr Leung took the photographs.  Mr Ng’s evidence was that Mr Sze helped him down to the site office and upon arrival Mr Sze returned to the roof to continue his work.  This is consistent with Mr Wong’s evidence who stated that it was Mr Sze who first informed him about Mr Ng’s injury and that he had expressly asked Mr Sze to accompany Mr Ng to the site office.

22.  Mr Leung, on the other hand, stated that no one accompanied Mr Ng to the site office and that there were no works on the ramp before he took the photographs.  I prefer the evidence of Mr Ng, whose evidence in this regard is consistent with Mr Wong’s.  I also find Mr Leung’s latter assertion surprising, given that, on his own evidence, by the time Mr Leung went up to the roof, it was some 45 minutes to 1 hour after the alleged accident took place.  As such, he was in no position to know whether or not the ramp had been used between the time of the alleged accident and his arrival on the roof.  There was no suggestion that the workers were on a break or that there was any other reason why Mr Sze would not have resumed his work.  As stated, Mr Sze was responsible for transporting construction debris and his work would necessarily involve him pushing a loaded wheelbarrow up the makeshift ramp in question.  In order to continue with his work, Mr Sze would have had to put the wooden planks back together and adjust the ramp without necessarily cleaning up the scene specifically.

23.  A great deal was also made out of the difference between the ramp described by Mr Ng and the ramp as shown in the photographs taken by Mr Leung.  According to Mr Ng, the ramp was about 3.5 metres.  Ms Chan points out that this was significantly shorter than the ramp appearing in Mr Leung’s photographs, making the slope of the ramp steeper and more difficult to use.  Again, I do not find such difference to be of material significance given my observations in the preceding paragraph.  In any event, Ms Chan agrees that the specific details as to how the alleged accident happened is irrelevant once it is accepted that an accident did take place during the course of employment.

24.  To the extent there are any other material conflicts in the evidence before the court, I prefer that of Mr Ng to that of Mr Wong and Mr Leung.

25.  In Lam Sik v Sen International Ventures Corp (HK) Ltd. [1994] 3 HKC, V Bokhary DJ (as she then was) quoted with approval the following passage from the decision in Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30:

“…anything at all that happens to a man while he is at work happens in the course of his employment and it if happens unexpectedly, it is an accident in the course of the employment.”

26.  I accept that Mr Ng sustained injury in the manner alleged by him and that it was an unexpected event that can be properly described as an accident.  Mr Ng’s account of the accident and resulting injury is supported by his instantaneous complaint, the various medical reports before this court, as well as the Form 2 Notice of Accident filed by Leader.

27.  Ms Chan points out that the medical reports only confirm that Mr Ng had sprained his back at some point prior to his admission to the Prince of Wales Hospital on 29 March 2012 and that they do not go so far as to confirm that Mr Ng had sustained injury from an accident that took place at around 2:00 pm on 29 March 2012.  There is, however, no evidence or suggestion as to other possible causes for Mr Ng’s sprained back.  Indeed, there is nothing to suggest that the present case is anything other than an ordinary one of a man injured in an accident at his place of work and during his time of work.  So long as the evidence supports a sufficient causal connection between the incident and the injury complained of on a balance of probabilities (Tang Siu Kong v Bonaza Fur Factory Ltd. (1991) HKDCLR 64) as I so find, Mr Ng’s back injury is more likely than not a result of his transporting construction debris using a wheelbarrow within the Site.

28.  In any event, Mr Ng is entitled to rely on section 5(4)(a) of the Ordinance, which provide that:-

“For the purposes of this Ordinance, 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.”

29.  There is no evidence to the contrary.  The words “in the course of” a man’s employment “relate to time conditioned by reference to the man’s service” while the words “out of” relate to “causality”: Lam Sik v Sen International Ventures Corp (HK) Ltd (supra) at 407F.

30.  I am satisfied, on a balance of probabilities, that Mr Ng’s injury was caused by an accident arising out of and in the course of his employment.

Award

31.  The respondents are accordingly liable for compensation, and judgment should be entered in favour of Mr Ng for the agreed damages in the sum of HK$154,265.00, which includes interest from 29 March 2012 to 23 September 2014.

32.  I will make an order nisi that (1) interest on the agreed outstanding compensation in the sum of HK$140,241.00 to run at 4% from 24 September 2014 up to the date of judgment and thereafter at full judgment rate until payment and (2) that the costs of the action are to be paid by the respondents, with certificate for counsel, and for Mr Ng’s own costs to be taxed in accordance with the Legal Aid Regulations. The order nisi shall become absolute unless an application for variation is made within 14 days from the date of delivery of this judgment.