MA SHIU WAI v. CHUN FAI CONTAINER TRANSPORTATION CO LTD

DCEC877/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 877 OF 2002

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J U D G M E N T

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1. The applicant applies under section 9, 10 and 10A of the Employees Compensation Ordinance, Cap. 282, against his former employer, the respondent. The respondent is a transportation company and the applicant was employed as a container lorry driver to transport goods between Hong Kong and China.

2. On 14 December 2001 at about 8.30 pm, while transporting a container of timber of about 38 tonnes to a factory in Chang An in Dongguan in Kwantung Province of PRC, the applicant's lorry overturned on its right side and the applicant suffered head injuries and was hospitalised at the Tai Ling Shan Hospital.

3. He discharged himself on 19 December 2001 and returned to Hong Kong. On the same evening he was admitted into the North District Hospital where he remained for one day before he was discharged by the doctors and returned home. He was given medication for his dizziness and took up occupational therapy afterwards.

4. On 19 September 2003, the Employees Compensation Ordinary Assessment Board issued a certificate of assessment which stated the applicant's injuries as multiple injuries resulting in post-concussion syndrome. It further certified the sick leave period of the applicant from 14 December 2001 to 1 January 2002 and 4 January 2002 to 1 December 2002 and the loss of earning capacity caused by the injury to be 1 per cent.

5. The respondent disputes liability on the ground that (1) the accident was caused by the serious and wilful misconduct of the applicant in that he was at the time of the accident impaired due to voluntary ingestion of alcohol and (2) the alleged accident did not result in serious and permanent incapacity.

6. The parties had at the beginning of the hearing reached an agreement of the quantum of compensation so the only issue remaining for the court to decide and adjudicate on is liability. The applicant in his evidence in court denied he was under the influence at the time of the accident of alcohol. He claimed he had arrived at the Tai Ling Shan customs check point at around 2 pm to 3 pm. He presented and submitted the necessary customs form and met up with another driver of the respondent, a Mr Kwong. He also met up with a staff of the Chang An Factory, a furniture factory, in charge of declaring customs and together they had a meal at a nearby restaurant. The applicant admitted that together they had consumed two bottles of red wine but he had only had about two glasses of wine. He claimed he then went back to his lorry and waited for the customs to clear.

7. He claimed that at the time it was between 3 pm to 4 pm and by 7 pm he was told that the customs had cleared and he then proceeded to Chang An at about 7.30 pm. He denied that when he started on his journey to Chang An he was drunk or intoxicated. He claimed that the cause of the accident was possibly due to the bumpy road. The applicant was unable to recall what happened after the accident or how he was treated by the doctors at the Tai Ling Shan Hospital between 14 to 19 December 2001. Neither could he recall if he was alert when he was admitted into North District Hospital in Hong Kong.

8. He agreed he was discharged after one day from the North District Hospital. He returned to the North District Hospital for follow-up treatment and for occupational therapy. He now works as a watchman.

9. The respondent called one witness, Mr Chan Siu-lam, a solicitor. Mr Chan is a principal solicitor of the solicitor firm Messrs Day & Chan, solicitors for the respondent. It was Mr Chan's evidence on affirmation and in court that he had gone to Tai Ling Shan Hospital and met with the doctors who treated the applicant after the accident. He further obtained permission from the doctor and consent from the applicant. As a result, he had obtained copies of some of the medical notes recorded by the doctors and the nurses at the hospital on the condition and the treatment of the applicant.

10. He asked the court to accept them as evidence on the applicant's condition at the time of his admission of the hospital and that he claimed these records supported the respondent's claim that the applicant was drunk and was vomiting at the time of his admission to Tai Ling Shan Hospital.

11. Mr Chan further interviewed a Mr Lee Chung-wing who was employed by Shun Yeung Furniture Factory in Tai Ling Shan as the customs clerk. On the day of the accident, according to Mr Lee's statement, his duty was to handle the customs declaration of the two lorries driven by the applicant and the other driver of the respondent, Mr Kwong. The respondent sought the court's leave to admit the evidence of Mr Lee as stated in the witness statement signed by Mr Lee, although Mr Lee was never called to give evidence in court.

12. The evidence adduced by the respondent other than Mr Chan's evidence in court were all hearsay. Mr Chan's evidence of what he was told by Dr Hui Bing at Tai Ling Shan Hospital on 22 November 2002, the medical notes that Mr Chan copied at Tai Ling Shan Hospital, and the witness statement of Mr Lee Chung-wing, all are submitted without calling the persons who made these documents or the person who wrote the medical records. The procedure required for adducing evidence had not been followed, although it is not impossible to comply with the calling of these witnesses.

13. Furthermore, the medical records were in most parts illegible. The quality of the photocopies were poor. The respondent attempted to reduce the notes into a transcript but it is found that the transcript is full of inaccuracies and gaps because the transcriber herself cannot read the copy of the medical notes in full. So in short, the evidence of the respondent produced is highly unsatisfactory and it follows that little weight should be given to the evidence.

14. On the other hand, the evidence of the applicant is not without flaws. As the applicant was the only witness called, no supporting evidence from any witnesses, independent or otherwise, were called so far as the cause of the accident is concerned. Consequently, the applicant's evidence is equally poor in throwing any light as to what caused the applicant's lorry to overturn on its side on the day of the accident.

15. The applicant attributed the cause of the accident to the holes on the road leading to the factory. He further claimed that the same poor condition of the road are frequently found in China. He tried to explain that they are difficult to anticipate because, as far as his job is concerned, he was expected to drive to different parts of Guangdong Province on different days of the week. What he failed to tell the court was would lorries turn over on a daily basis on the roads of this part of Guangdong Province or does it happen to the applicant frequently? I assume that such accident does not happen on a daily basis or on a frequent basis because the roads were bumpy or because the goods in the container was too big or too heavy. There may be collisions on the road but such cases of lorries turning over by itself is certainly not a daily occurrence.

16. Mr Giwani, counsel for the respondent, urged me to take all the circumstantial evidence into account, including the circumstantial evidence in spite of the respondent's failure to obtain the witness's attendance in court at the hearing. The respondent relies on section 5(2)(d) and section 5(3) of the Employees Compensation Ordinance and submits that the applicant's incapacity was not serious because it is assessed at 1 per cent and it was directly attributable to his being under the influence of alcohol at the time of the accident and that his injury is attributable to the serious and wilful misconduct of the applicant.

17. The Employees Compensation Ordinance, Cap. 282, provides that, and I quote, under section 5:

"Employee's liability for compensation for death or incapacity resulting from accident

(1) Subject to subsections (2) and (3), if in any employment personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this ordinance.

(2) No compensation shall be payable under this ordinance in respect of (a) any injury other than an injury which results in partial incapacity of a permanent nature which does not incapacitate the employee from earning full wages at work at which he was employed (b) any incapacity or death resulting from a deliberate self-injury (c) any incapacity or death resulting from personal injury if the employee has at any time represented to the employer that he was not suffering or had not previously suffered from that or a similar injury knowing that the representation was false or (d) any injury not resulting in death or serious and permanent incapacity caused by an accident which is directly attributable to the employee's addiction to drugs or having been at the time of the accident under the influence of alcohol.

5(3) In any proceedings under this ordinance where it is proved that the injury to an employee is attributable to the serious and wilful misconduct of the employee or that an injury by accident arising out of and in the course of his employment is deliberately aggravated by the employee, any compensation claim in respect of that injury shall be disallowed except that where the injury results in death or serious incapacity the court on consideration of all the circumstances may award the compensation provided by this ordinance or such part thereof as it shall think fit."

18. Mr Giwani referred to the case of Yuen Yuk-ying and Chan Kam-wing trading as Kam Bo Real Estate Company reported in 1997 1 HKC 198 where Godfrey J, Justice of Appeal as he then was, held on page 204 of the judgment at C and I quote:

20. Save for the death of the deceased in the Yung Yuk-ying case, the facts in the present case are similar to the Yung Yuk-ying case in that the deceased driver in Yung's case had drank beer before and after he made his delivery to the construction site and on his way home he ran into a stationary road sweeping vehicle. In the present case, the applicant's lorry fell on its side. There were no obstacles on the road. There was no collision. The applicant attributed the accident to the bumpy road, to the unevenness of the holes filled in an uneven manner on the road. The statement of Mr Lee produced by Mr Chan suggested that part of the road was cemented and the remaining uncemented part of the road has a difference of height of 20 cm and it was at this place where the two parts were joined that the applicant met with the accident.

21. Whatever was the actual condition, the applicant should have been alerted to the unsafe condition of the road. He himself said it happens frequently that roads in that part of China frequently have filled up holes that make the road uneven causing the road to be bumpy. He said, on the other hand, on the day of the accident he was driving 70 kilometres per hour and carrying a container full of timber of, in his opinion, over 38 tonnes. As an experienced driver who has over 17 years of driving experience, he would have to exercise particular care while driving on this type of road condition.

22. Taking into account of what was put before me, that the applicant admitted to have drunk two glasses of red wine while the circumstantial evidence suggested that he could have drank more, the circumstantial evidence including Mr Lee's statement of in fact three bottles of red wine were consumed by three persons, circumstantial evidence including the medical notes and the evidence of the doctor that Mr Chan had talked to, Dr Hui Bing, that at the time of his admission into Tai Ling Shan Hospital, the applicant was in a drunken stupor. He was found to be drowsy and one of the diagnosis of the doctor was that he was drunk, in Chinese "酒醉中毒".

23. From the applicant's own evidence, he had gone back to his lorry after the meal and the consumption of wine and that he had dozed off. He was unable to say for how long he had dozed off. He had mentioned under general conditions he would doze off for 15 minutes. Taking into account that he had arrived on his own admission at the Tai Ling Shan customs check point between 2 pm to 3 pm that day and that he had submitted the custom papers, and after those details were attended to, he went with some friends for a meal. It would definitely have been after 3 pm.

24. It is unlikely that he would have returned to the lorry at 3 pm or even at 4 pm. He was a frequent driver to China and he knew it is difficult to estimate how soon the custom papers could be cleared. He admitted in cross-examination that it is not unusual that after clearing customs he would have arrived at the destination after 9 at night and with so much time on his hands he would have time to enjoy his meal after 3 pm that day and how much wine would he have consumed during that time? According to Mr Chan's statement taken from Mr Lee, it was at least three bottles between the three persons because Mr Lee said he did not consume any wine.

25. According to Mr Lee, the applicant did not leave and drive his lorry until half past 8 but if the accident had happened at half past 8 or thereabouts the applicant must have left before 8.30. The applicant was not able to tell for how long he had driven before the accident took place, that is how long he has driven from the Tai Ling Shan check point. In any event, the applicant said that he considered himself to have a good alcohol consumption capacity. Under those circumstances, it is highly possible that he considered that with a good consumption capacity, the alcohol that he ingested would not have affected his driving skills or slowed down his reaction.

26. But the fact remains on that night of 14 December there was this gap on the road. He clearly was not able to react to the gap on the road, the gap of different levels on the road, and with the heavy load he was carrying, which he knew well was a heavy load of timber, his lorry tipped over on its side.

27. I am satisfied on a balance of probability that the applicant's accident was caused because the applicant has failed to react to the road condition because his judgment has been impaired by his consumption of alcohol. From the evidence of the doctor, the doctor regarded the applicant to have been drunk on his admission to hospital. He had vomited continuously for a long time. This may have been caused by the concussion sustained at the time of the accident but the fact that the doctor diagnosed and detected drunkenness must be taken into account, although the medical notes are not completely and fully comprehensible and legible but those words of drunkenness can be seen on more than one page of the medical notes and even on the same page they appear more than once.

28. So the applicant knew he was driving a heavy cargo on a road which condition he was uncertain about. Yet, he ingested deliberately glasses of wine before he started on his journey, knew that there was a risk that the alcohol could have affected his driving skills. It was irresponsible behaviour and in the words of Godfrey J, who referred to the Canadian case decision, that, and I repeat the quote:

"When the job is driving, in our view, serious and wilful misconduct must be interpreted with no tolerance for impairment by drugs or alcohol."

29. And in the words of Godfrey J: "Owing to his condition...", meaning the employee, "...he may have been and probably was less able to avoid than if he had not ingested alcohol", that is avoid the accident.

30. I find that the applicant had voluntarily ingested alcohol which had the effect of dulling his senses, slowing his reaction time and hampering his motor skills and this would constitute the reason why that took place which the applicant himself could not explain but with the benefit of hindsight it is very clear. The applicant has himself to blame.

31. Consequently, I find that the respondent is not liable to the applicant under section 5(2)(b) of the ordinance because the applicant had been driving under the influence of alcohol and I order costs nisi to the respondent with certificate for counsel, and costs to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid regulations. The claim is dismissed.