TSANG HOI CHE v. FOOK YUEN FOODS LTD

DCEC948/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 948 OF 2001

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J U D G M E N T

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1. The applicant claims employee's compensation from the respondent under sections 9, 10 and 10A of the Employees' Compensation Ordinance, Cap. 282, for an alleged injury suffered in the course and out of his employment with the respondent on 22 January 2001. He had been assessed by the Medical Assessment Board on 5 December 2001 to have suffered from back contusion resulting in fractured lumbar 2 in his spine. The Board also assessed that the injury necessitated absence from duty from 2 February 2001 to 1 August 2001 and permanent loss of earning capacity at 7 per cent. There was no appeal from this assessment.

2. Mr Yip for the applicant asked the court to apply section 9(1A) of the Employees' Compensation Ordinance and to award compensation at a higher percentage to reflect the special circumstances of this application. Mr Yip further said that the special circumstances were 1) the residual disabilities of the applicant at present and 2) his present earnings in real terms is substantially less than what he earned before the incident. He also wished to adduce evidence of some recent job offers placed in the Labour Department which, in the opinion of the applicant's expert Dr Chiang, were suitable for the applicant.

3. However, during the first morning break, the parties have reached agreement on quantum at $101,287.80 with interest also agreed at half the judgment rate commencing from the date of the alleged accident to judgment, all without prejudice to quantum or any other issue in other litigations. This agreement obviated the need to adduce evidence on job offers and all arguments on the applicability of section 9(1A) of the Ordinance.

4. What is left for determination is the issue of liability. Mr Yip for the applicant and Mr Gidwani for the respondent also confirmed to me that they would not call any medical evidence on this issue and I can ignore the reports by the two experts, Dr Chiang for the applicant and Dr Chun for the respondent. This, of course, would not prevent me from relying on the wisdom of these experts on matters of general application. Mr Yip and Mr Gidwani also confirmed to me that I am however at liberty to refer to the other medical reports prepared by the doctors of the government hospitals as they have been agreed for production at the trial.

5. I now deal with the applicant's witnesses.

The Applicant

6. The applicant commenced work for the respondent in February 2001 as a driver cum delivery worker. He alleged that on 22 January 2001 at about 12.30 in the afternoon he suffered a slide and fall on the staircase leading from the third floor to the second floor of Carnarvon Centre in the course of delivery of frozen meat for the respondent to Tao Heung Restaurant. He said that as a result he hurt his head, waist and right arm. A swelling thus developed on his head and another swelling at the back of his waist. He said that about one minute after the accident, which generated some noise, a kitchen worker came out to his rescue. He was asked whether it was necessary to call an ambulance but he declined the suggestion. Instead, he rested on the stairs for several minutes and then went out to the warehouse to look for the female in charge and asked for some medicinal oil.

7. The lady then brought him to the cashier desk where he was given some Mercurochrome solution. After applying the Mercurochrome, he made a telephone report to the account clerk of the respondent, one Miss Tam. He then continued with his work. After returning to the respondent's premises on the same day, he again reported it to Miss Tam and some other people who were present. Those present included Mrs Yip, the wife of the owner of the respondent, and one Miss Nip.

8. Miss Tam asked him to show his injury to Miss Nip outside where it was brighter and he duly did so. On the same day, he also relayed this accident to his other colleagues, including a former colleague Mr Leung Wai-kay who happened to have returned to the respondent's place to chat with his former colleagues. The applicant pulled up his clothing to show his back injury to Mr Leung.

9. Since he was able to withstand the pain in his head as well as in his waist, he did not consult any doctor on that day. He continued to deliver goods to the respondent's customers as there was no worker to do the work. He wanted to wait until after the Chinese New Year holidays, which was approaching, and see whether the injury would be all right after the holidays. The next day was 23 January and there was no work that needed to be done at the respondent's place.

10. During the Chinese New Year holidays he still felt the pain over his waist and there was still the swelling. After the Chinese New Year holidays, he continued to work between 26 January to 1 February. In the evening of 1 February the pain was so severe that he could not fall asleep. On the next day he telephoned the respondent and told a female that his waist was very painful and he had to see a doctor and could not return to work. The female replied that it was alright. He then went to consult Dr Lam King-tin who had been introduced to him by a friend, Ah Shing. He had consulted Dr Lam previously.

11. Dr Lam is a general practitioner. On this occasion, Dr Lam told him that he needed an X-ray to show what was wrong. Since Dr Lam did not have an X-ray machine, he told the applicant to go to a government hospital for assistance. Dr Lam gave him some painkilling medicine. On the next day he again telephoned the respondent and asked for leave because of his waist pain and he had to seek medical assistance again.

12. He then went to the A & E Department of Kwong Wah Hospital and was given three days sick leave. In the same evening the doctor at the A & E Department of Kwong Wah Hospital telephoned him and said that he had to return to the hospital for treatment as the X-ray revealed something wrong.

13. In the course of his employment, he had furnished about 10 sick leave certificates to the respondent, four of them purportedly issued by Dr Andersen & Partners were later found to have been forged. He was then prosecuted and he pleaded guilty to the charges. He was asked in his evidence-in-chief on why did he furnish four forged medical certificates to the respondent on other occasions. He said he did so for convenience as the respondent would deduct two days salary if no medical certificate was provided by him. He admitted in cross-examination that he had some of the certificates at home as his wife had at one time worked for Dr Andersen & Partners.

14. The evidence of respondent witness RW3, Miss Tam, made it clear that the forged certificates had no effect on the amount of wages to be paid to the applicant but that sick leave without a certificate could result in summary dismissal. The absence of effect by the forged certificates on the wages to be paid to the applicant, of course, would not have turned the applicant's dishonest conduct into an honest one.

15. In cross-examination, the applicant gave more detail on how he fell down the stairs. Just before he fell, he was carrying a bag of frozen beef of over 40 pounds on his left shoulder. He also carried several bags of goods weighing over 10 pounds in his right hand. After he had taken two to three steps, he suffered a slide and fell down on the stairs on his back. When he slide down the stairs, he threw the bag of beef backwards. This bag of beef then slid down the stairs from above and hit the left rear part of his head. He could not recall whether his head and buttocks had been hit by the stairs and, if so, how many times, but he recalled that he did try to grab at things to stop the fall but failed. He was cross-examined in detail on the incident and also on his consultation with medical practitioners. It was also put to him that he had not complained to the doctors about his injuries to his arm and head. But the evidence-in-chief of both Mr Yip and Miss Tam for the respondent revealed that he had on 22 January complained about injuries to his head and arm.

16. On the whole, the applicant maintained his story in cross-examination. He also admitted that he had about seven previous convictions for criminal acts, including one for possession of dangerous drugs back in 1972 and other offences involving triads. Save the offences for possession of dangerous drugs and uttering forged medical certificates, it is not known when these other offences were committed. Apart from the offence relating to the medical certificates, it is not known if the other offences involved dishonesty.

17. It was also put to him that he was always late for work and had never been promised any bonus by Mrs Yip and that he had been demoted to a standby driver position because of poor performance but he retorted that he had enjoyed two substantial salary increases. It was also put to him that he had not telephoned the respondent for sick leave on 2 and 3 March as he could not even tell who it was that received his calls. But he maintained that he had made the phone calls, though he could not distinguish whether the female was Mrs Yip or Miss Tam.

18. He also admitted that he had asked for sick leave for a day or two every month. When asked why he did not ask for sick leave after this injury, he explained that he took sick leave because of flu. But this time, it was physical injury and he thought that he could recover within a day or two. Hence he did not ask for leave. He also denied of having ever spoken to any physiotherapist on 12 February 2001 or 15 February 2001 that he wanted to stop the physiotherapy because he had to work.

Leung Wai-kay

19. In addition to his own evidence, the applicant also called his former colleague Mr Leung Wai-kay. Mr Leung used to work for the respondent as a driver cum delivery worker until 18 March 2001. Thus he was acquainted with the applicant who joined the respondent in February 2001. Leung said that the applicant was very fit and was accustomed to carrying loads of over 20 kilogrammes on his shoulder. On 22 January 2001, which was the 28th day of the last month according to the lunar calendar, a former colleague, Ah Leong, told him on the phone that the applicant had been injured. After going off duty at 4.30 in the afternoon, he returned to the respondent's premises to see his former colleagues. He met the applicant and the applicant told him that the applicant had suffered injury from a fall. The applicant also pulled up his clothing to show his injury at the lower back to Leung, although Leung did not pay much attention to it.

20. About seven to ten days later when Leung again returned to the respondent's premises to chat with his former colleagues, the applicant told him that the applicant was still feeling very painful at his waist. Leung advised the applicant to take a rest and to seek medical assistance from Kwong Wah Hospital which does not charge any fee for consultation. On 7 February 2001 the applicant requested Leung to write a report of the applicant's accident and Leung duly complied with this request.

21. In cross-examination Leung elaborated that when he was told by the applicant about the accident on 22 January, the applicant had also told him that the applicant had suffered a fall at the staircase of Tao Heung Restaurant. Leung disagreed that he had mixed up the day on which the applicant had told him about the incident with the day when he was asked by the applicant to write a report for the applicant. It is important to note that the respondent did not contend that Leung was a liar. There was also no obvious motive for Leung to lie. He had only been working with the applicant for a bit over a month and their relationship did not appear to be particularly good or strong, though he had been to the applicant's home for hotpot food. I accept him as a truthful witness.

22. I now deal with the respondent's witnesses.

Law Ping-hung

23. The first witness called by the respondent was Mr Law Ping-hung. He was the head chef of Tao Heung Restaurant on 22 January 2001 and he was on duty on that day from 11 in the morning to 3 in the afternoon. He said on that day there was no delivery worker delivering goods to Tao Heung who had suffered a fall or got injured at the rear staircase. If there was any such case, he would have known as the injured person would not have been allowed to rest in the dining hall but would have been taken into the kitchen to rest. He further said that the rear staircase was very clean as it was cleaned every morning by the workers of the building manager.

24. He also drew a sketch setting out the location of the rear staircase, the door leading therefrom to the male and female toilets, the warehouse, the barbecue stall, the dim sum stall, the kitchen, the dining hall and the cashier desk. There was also a door leading from the opposite of the female toilet to the dining hall without going through the kitchen. From the kitchen where he worked, he could not see or hear anything happening in the rear staircase. If someone should go through the door opposite the female toilet into the dining hall, such would also not be within his vision.

25. He also said that the delivery workers would just throw the goods from the third floor down the staircase to the second floor instead of carrying them down, save for fruits which would be carried up from the first floor to the second floor, and for seafood which was delivered at a time when he was not there. Goods thrown down or slid down the staircase included pork in a basket and cold meat wrapped up in plastic bags. But the staircase would not be made wet or slippery by these goods despite the fact that the cold meat would generate condensation and the pork would be oily.

26. He at one time said that he witnessed all deliveries because he would be smoking at the rear staircase at the delivery time. He later admitted that on that day he only saw the cold meat being weighed in the scale in the kitchen but not its delivery from the rear staircase. He also said that events big or small would all be reported to him. If any person should suffer a fall, he would definitely be informed about it, the reason being that if any person should suffer a fall, he or she would be taken into the kitchen for initial treatment and a decision would then be made on whether the injured person should be sent to the hospital. Even if the injury should be made known to the warehouse keeper, Miss Wong, she would also inform him about it.

27. From the tenor of his evidence, he was obviously referring to serious injuries where the injured person had to rest inside the restaurant and had to be treated by the staff of the restaurant. If the injury did not appear to be serious and the injured person did not feel the need to rest or be treated in the restaurant but just left the restaurant on his own, I can see no reason for him to be informed about it.

28. His evidence carried an air of self importance. He tried to convey the impression that he was the leader overall in the restaurant and even for matters unrelated to the kitchen but related to the dining hall, he still had to be informed and he would express his views on how to deal with them. He exhibited a sense of exaggeration of his position and role in the restaurant. His evidence that the staircase was clean and dry despite all sorts of food and meat were being thrown or slid down it showed his protective attitude towards the restaurant. Bags of frozen meat after being taken out of the deep freezer and delivered by the goods vehicle inevitably carry some moisture on the outside. Baskets of pork and vegetables would also make the staircase greasy and wet.

29. His arrogance is also revealed when he said that he would reject goods delivered outside the permitted delivery hours, even if the restaurant needed the goods urgently. His insistence that bags of frozen meat of over 40 pounds had never been broken after having been thrown down the staircase of about ten steps showed that he was a stiff-necked person. He is not a reliable witness.

Yip Ching-kwan

30. The next witness is Mr Yip Ching-kwan, the de facto owner of the respondent who owns and controls the shares of the respondent. He said that the applicant was always late and in August 2000 he was made a standby driver and warehouse supervisor to deal with his lateness. He was for the first time advised by the respondent's accounts clerk, Miss Tam, about the applicant's accident and injury on 3 February. Instead of leaving the enquiry to the insurer, he said that he had gone to the restaurant on the 8-10 February to enquire from the head chef there on the alleged accident and injury. He went there twice and followed the head chef in the enquiry with the kitchen and dining hall staff who were on duty at the time of the alleged accident, but no one had knowledge of the alleged accident.

31. However, it is not known if all the kitchen and dining hall staff who were on duty at the material time were available at the enquiry. It is also not known whether the warehouse in charge, Miss Wong, who had led the applicant to the cashier desk for the Mercurochrome solution, was present or had been enquired. When the head chef, Mr Law, gave evidence, he was not asked about the enquiry.

32. In the course of his evidence, Mr Yip made no effort to conceal his dissatisfaction about the applicant because of his lateness. However, it is indisputable that the applicant had joined the respondent in the second half of February at a salary of $7,800 per month and was given a salary increase of $400 per month in May. He was given another increase to $9,000 per month in August. His title was changed from driver cum delivery worker to warehouse attendant/driver in the first half of August and further changed to warehouse supervisor in the second half of August. The position of warehouse supervisor was no doubt a position that carried some trust from the respondent.

33. There is also the disputed bonus of $500 which Mr Yip said was the sum given by his wife to the applicant for him to buy breakfast for everyone and the applicant would also buy some cigarettes for himself and sometimes kept the change.

34. The salary slips issued by the respondent and signed by the applicant indeed noted that the applicant had been late for 8 of the 22 half month intervals that he had worked for the respondent. But the slips had been so marked even before he was given his first salary increase. No proper explanation has been given by Mr Yip on why the applicant had been treated so well despite his dissatisfaction over him. Mr Yip also confirmed that he had never thought of dismissing the applicant.

35. A driver cum delivery worker is never hard to find. If the applicant should have been such an undesirable employee, it would not have been difficult to have him replaced. Instead of punishing him for his lateness, he was given salary increase after increase and also promotions within short intervals. I cannot help but conclude that despite his lateness, the applicant was a favoured employee of the respondent. There were, however, some unknown reasons that had caused a change of attitude in Mr Yip. I cannot find him a reliable witness.

36. In any case, because of the unsatisfactory way that his enquiry was conducted in the Tao Heung Restaurant, his evidence does not prove that there was no accident and injury on 22 January as described by the applicant. I, of course, bear in mind that the burden is not on the respondent but on the applicant.

Tam Wai-king

37. The third witness called by the respondent is Miss Tam Wai-king. She said in her witness statement that on 22 January the applicant had gone to deliver goods to various customers including Tao Heung Restaurant. He returned at about 4 pm and said that when he delivered the goods at Tao Heung, he had negligently injured his hand by scratching and caused a slight swelling in his head. At the time Miss Tam and other people present all asked the applicant to go and see a doctor but the applicant said that it was a small matter and he just continued to deliver goods to other customers.

38. The applicant continued to work on the next day and on the days after the Chinese New Year holidays. He only absented himself on 2 and 3 February and came back in the afternoon of the 3rd saying that he needed sick leave and a report of accident at work because of the accident on 22 January. Miss Tam remembered that when the applicant first mentioned about this injury on 22 January, he merely referred to his hand and head but not his back. The medical certificate presented by the applicant on 3 February, however, referred to low back pain. She thus had a suspicion and embarked on an investigation on the sick leave certificates presented by the applicant previously. This investigation resulted in the discovery of the four forged medical certificates.

39. In her oral evidence she, however, admitted that when the applicant was talking about his injury on 22 January she was not paying full attention to the applicant as she was doing something else. She also agreed that she could have missed out something said by the applicant. Her evidence is thus not conclusive on whether the applicant had referred to his injury to his waist on 22 January.

40. Her evidence also showed a similar sentiment against the applicant as demonstrated by Mr Yip. She again emphasised the lateness of the applicant. She referred to his promotion to warehouse supervisor with substantial salary increase as a demotion from a full-time driver to a standby driver because of his lateness. This is ridiculous. She admitted that some people described her as the informally adopted daughter of Mr and Mrs Yip. That explains why her attitude was so similar to that of Mr Yip.

41. She was also adamant that on 22 January the applicant had only returned at about 4 pm for the first time and he had to go out again to make further delivery until after 6 pm. She disagreed with the applicant's case that he had returned at or after 1 pm and finished work shortly after 4 pm. She, however, admitted that the applicant had on over 90 per cent of the occasions returned to the respondent's premises for lunch. I do not know why she could be so sure that the applicant had only returned at about 4 pm for the first time on that day. The head chef of Tao Heung, Mr Law, confirmed that the frozen meat had been delivered at about 12 pm on that day. If the applicant should have only returned at about 4 pm, what did he do in the course of the time gap of over three hours and where was he? Both sides agreed that there was more work on that day than usual as that was the 28th day of the last month of the lunar calendar or the second last working day before the Chinese New Year holidays. There was thus no reason for the applicant to loiter elsewhere and every reason for him to return to the respondent's place to continue with his work. All in all I accept the evidence of the applicant as it is to some extent corroborated by Mr Law that he had delivered the frozen meat to Tao Heung at 12 or (according to the applicant) at 12.30 pm and he should have returned to the respondent's place at or shortly after 1 pm.

42. Miss Tam was also adamant that the applicant had not telephoned back to the respondent seeking sick leave on 2 and 3 February. However, she apparently had not consulted Mrs Yip on this matter. I do not overlook the fact that the medical certificate issued by Dr Lam King-tin was dated 2 February. If the applicant should have failed to report his sick leave early in the morning of 2 February, he could have done so later on that day after obtaining this sick leave certificate. He could also have done so in the next morning. I cannot see any reason why he should have failed to do so. I therefore accept the evidence of the applicant that he had telephoned back to the respondent's place seeking sick leave on 2 and 3 February.

43. I now deal with the submissions by Mr Gidwani and by Mr Yip.

44. Mr Gidwani's first attack is on the applicant's character. He has submitted that the applicant is a person of low credibility. He referred to his criminal records and his four forged sick leave certificates and posed the rhetorical question of why couldn't the applicant be lying again. I can see the strength of this submission. If the applicant was not corroborated by his witness, Mr Leung, I may well take a dim view of his evidence. However, Leung not only corroborated the applicant on his case that he had suffered a fall at Tao Heung and hurt his back on 22 January, he further corroborated the applicant by reciting his conversation with the applicant about seven to ten days after 22 January in which the applicant again referred to his back pain. That was before 2 February. This evidence from Leung also destroyed one of the respondent's grounds of defence, that the applicant could have hurt his back on 2 or 3 February and not on 22 January.

45. Leung also confirmed that the applicant was accustomed in using his shoulder to carry goods of over 20 kilogrammes. This corroborated the applicant's version of how he carried the bag of beef just before the accident. I must say that it is a better and safer way to carry goods than to throw the goods around.

46. The next point raised by Mr Gidwani is that there were some inconsistencies in what the applicant had told the doctors. The earliest version of the applicant's story, as can be gathered from the testimony of Mr Leung and Miss Tam, is that he had hurt his waist, head and hand. It is not surprising that when he received medical consultation on 2 and 3 February, his hand and head no longer troubled him and he did not refer them to the doctors in detail or at all. Mr Gidwani also cross-examined the applicant on whether he had told the doctors that he had landed with his buttocks, as such description does present in an early medical report. But I cannot tell whether that statement in the medical report written alongside a diagram of a human body was a summary by the doctor of the demonstration of the fall by the applicant or whether it was a statement from the applicant himself.

47. In any case, the fall as described by the applicant would not have spared his buttocks, though I cannot tell whether the buttocks would or would not have been injured as a result. Mr Gidwani also criticized the applicant on the inconsistencies between his evidence and the records of the physiotherapist as he denied having refused physiotherapy on the ground that he needed to work but the reports say he had.

48. It is possible that the applicant was having some other gainful employment at the time and he did not want to reveal it to the court. The inconsistencies are, however, on matters taking place long after the accident and injury and I do not think they can affect the truthfulness of the applicant's version on the accident and injury. Mr Gidwani also invited the court to conduct an analysis on the likelihood of the applicant having suffered a fall in the way described by him. I must say that if one should suffer a fall with nothing on one's hands, there would certainly be room for reflex actions for one's protection. But the applicant had heavy goods on his left shoulder and right hand. The room for him to save himself was limited and there was little he could do to control the way of his fall and the subsequent slide. Furthermore, when the applicant fell, he fell all of a sudden after possibly stepping on some broken steps. It was not at all easy for him to keep a clear sequential recollection of how he fell, which leg or which buttock touched the ground first or whether the head hit the ground just once or more than once. This also applies to the criticisms of Mr Gidwani that the applicant had failed to recollect some other minor details associated with his fall.

49. Mr Gidwani also referred to the lack of knowledge on the part of Tao Heung on this accident. But the applicant did not treat his fall as of much significance at the material time. He just rested several minutes out there in the staircase. Afterwards he applied some Mercurochrome solution to his arm and he then finished the delivery and left. He did not become unconscious. He was not taken to the kitchen or dining hall for treatment. There were was no bleeding or broken limb. No police or ambulance was summoned. For Tao Heung, it was just a non-event.

50. In these circumstances, I can well understand why it was not a matter that would have been brought to the attention of those in charge of the operation or working in Tao Heung. Regarding the point that the applicant was able to continue working on the day of the accident and for many days thereafter, I would refer to the respondent's medical expert, Dr Chun, who said in his report of 15 February 2003 that: "For compression fracture of the lumbar thoraco-lumbar and lumbar spine, in general, about one-third of patients are without residual symptoms and return to work with their original occupations. In some cases there were patients with compression fractures not being noticed or known and only came to view in some routine check-up."

51. It is very likely that the applicant's fracture was one of those that did not cause him much pain at the early stage. That explains why he was able to continue working on that day and on days thereafter. However, the injury did develop into an intolerable pain at night of 1 February, so much so that the applicant had to seek medical consultation on the next day.

52. I also note that Mr Gidwani has not dealt with the point that the applicant was a favoured employee and had been given promotion and salary increases within short intervals. Was such an employee likely to be one who would put forward a fake claim of accident at work?

53. I also note the points made by Mr Yip for the applicant that if the applicant should have desired to cheat, he could have done so in the early stage of his employment rather than at the eleventh month. Furthermore, if he wanted to cheat, he could have done so on 22 January instead of playing the first episode on that day and continuing with it on 3 February. All in all, I find that the applicant has proved his case on a balance of probabilities and in so concluding, I stress the importance of the corroboration by the evidence of Mr Leung.

54. I therefore give judgment to the applicant in the agreed quantum of $101,287.80 with interest at half the judgment rate commencing from 22 January 2001 to today. I also award costs with certificate for counsel to the applicant. I award a certificate for counsel because this is a hard fought case though just on the facts. The difficulty justified the engagement of counsel on both sides. I also order that the applicant's costs be taxed in accordance with Legal Aid regulations.