THAPA KULBAHADUR v. GRAND TECH CONSTRUCTION CO LTD

DCEC 878/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 878 OF 2011

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JUDGMENT

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1. This is an application under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (the “ECO”) for compensation in respect of an injury which the applicant claims was sustained in an accident on 5 March 2010 whilst working at a construction site at Welfare Road, Aberdeen Inland Lot No 451, Aberdeen, Hong Kong (the “site”).

BACKGROUND AND THE PARTIES’ RESPECTIVE CASES

2. There is no dispute that the applicant was at the time of the alleged accident an employee of the respondent.

3. It is the applicant’s case that he suffered the injury out of and in the course of his employment with the respondent.

4. The respondent denied that the applicant suffered an injury, in the course of employment with the respondent, at the site as alleged.

5. Before the case was opened, I was informed by Mr Sadhwani (counsel for the applicant) and Mr Wong (counsel for the respondent) that the quantum of the applicant’s claim had been agreed between the parties at HK$124,605.32.  Therefore, the trial is only concerned with the defendant’s liability, if any, in respect of the plaintiff’s claim.  

(1) The applicant’s case and evidence

6. The applicant and his co-worker, Pun Nirmal (“Pun”), testified in court.  Both adopted their witness statements served in these proceedings as their evidence in chief.

7. The applicant is currently 37 years old and was 32 years old at the time of the alleged accident.  He is Nepalese by nationality born in Hong Kong on 25 December 1977.  Upon completion of his kindergarten education in Hong Kong, he moved back to Nepal and received education up to Class 7, which is equivalent to Form 1 in Hong Kong.  He returned to Hong Kong in May 1997 and since then had been working in the construction industry as a general labourer.  He is able to communicate in very simple English and a few words in Punti dialect.

8. The applicant’s evidence can be summarized as follows:-

(1)   At the end of February 2010, the applicant was instructed by the respondent to work at the site.  At some time after 4:30 pm on 5 March 2010, the senior foreman Ah Fai[1] instructed the applicant to perform overtime workwhich was to carry and remove some reinforcing steel bars (“re-bars”) to a designated location because the steel fixers would perform steel fixing work at that location on the following day.  At about 6 pm on 5 March 2010 (the “material times”), the applicant had lifted, carried, moved and transferred 7 pieces of re-bars.  He then continued to lift and carry the 8^th re-bar which was 3-metre long with a diameter of 40mm and a weight over 50 kgs.

(2)   At the material times, darkness began to falland the site was insufficiently lit by some spot lights.  At the material times, the ground of the site was wet, muddy, slippery and scattered with some waste construction materials, namely loose re-bars and pieces of plywood. The applicant lifted the re-bar and after rising to his feet he began to walk forward, carrying the re-bar.  Suddenly his right foot stepped on a loose object on the ground and the applicant then slipped forward, causing him to fall.  The applicant immediately attempted to stand firm on his feet and regained his balance without falling with the re-bar.  However, in the course of regaining his balance, the applicant felt a sharp pain in his back.  The pain was so intense that he became powerless and dropped the re-bar.

(3)   About 10 to 15 minutes later when Fung came to inspect the work progress, the applicant reported this accident to Fung. Fung then told him to go home for a rest.  As a result of the accident, the applicant sustained serious personal injury to his back.

(4)   However, in the evening and night of 5 March 2010, the applicant still experienced pain in his back.  On the following day, the intensity of pain in his back became more severe.  He then went to the Accident and Emergency Department of Queen Elizabeth Hospital for medical treatment and he was granted sick leave. 

9. Therefore, on the applicant’s case, no one witnessed the accident. 

10. Pun did not witness the accident. His evidence can be summarized as follows:-

(1)   At sometime after 6 pm on 5 March 2010, the applicant was working at about 10 to 12 meters away from Pun at the site.  They were both working overtime for the respondent.  At that time he saw the applicant lifting and carrying the re-bars from one location to another at the site.

(2)   At some time after 6 pm on 5 March 2010, Pun saw the applicant placing his hand on his back in a bending position.  He did not know what happened to the applicant because the applicant did not request any assistance.  A short while later, he saw Fung approaching the applicant.  However, he did not hear the contents of their conversation. At about 7 pm on the same day, he and his colleagues finished their work.  He then walked over to the applicant.  The applicant told Pun that he had a work accident a moment ago and he had just informed Fung about the accident.

(2) The respondent’s case and evidence

11. At trial, three witnesses testified for the respondent:-

(1)   Yuen Wing Wai (“Yuen”), a director of the respondent;

(2)   Fung; and

(3)   Choi Chiu Kin (“Choi”), the safety officer of the respondent.

The three witnesses also adopted their witness statements served in these proceedings as their evidence in chief.

12. Yuen’s evidence is as follows:-

(1)   The respondent is a wholly owned subsidiary of a listed company Grand Ming Group Holdings Limited (Stock Code 1271).  Since 1995, the respondent has been involved in a number of construction projects as a principal contractor.

(2)   The applicant has been employed by the respondent as a general labourer since September 2006.

(3)   On 12 January 2010, the applicant did not work. According to the respondent’s record, on 8 February 2010, the applicant signed a document (in both Chinese and English) stating that he had on and off back pain from October 2009 to January 2010.  On 12 January 2010 the applicant’s back pain intensified and hence he sought medical treatment and obtained sick leave until 31 January 2010.  Based on the sick leave certificates, the respondent paid him sickness allowance under the Employment Ordinance (the “EO”), which was equivalent to four-fifths of his wages.

(4)   On 1 February 2010, the applicant resumed work but he was absent from work again from 6 March 2010 onwards. During the period the applicant was absent from work, he submitted sick leave certificates to the respondent and hence the respondent paid him sickness allowance.

(5)   The payments of four-fifths of the applicant’s wages were not periodical payments under the ECO, but sickness allowance under the EO.

(6)   In July 2010, all the sickness allowance the applicant was entitled to under EO had been used up.  Hence, the respondent decided to terminate the applicant’s employment, and issued a cheque for the sum of $39,414.09 being termination payments.

(7)   However, the applicant refused to attend the office of the respondent to collect the cheque.  Consequently, the respondent deposited the cheque into the applicant’s bank account on 9 August 2010.

(8)   On 26 August 2010, the respondent received a letter from the Labour Department attached to which was a Notification of Accident dated 26 August 2010 filed by the applicant with the Labour Department with respect to an accident on 11 January 2010.

(9)   On 3 September 2010, the respondent sent a letter to the Labour Department stating that the applicant did not work on 11 January 2010 and therefore he could not have an accident on that day. 

(10)  On 3 November 2010, the Labour Department sent a letter to the respondent stating that the applicant claimed to have an accident on 10 January 2010 and had been on sick leave since 12 January 2010, but the respondent wrongfully dismissed him in contravention of s48 of ECO.

(11)  On 12 November 2010, the respondent sent a letter to the Labour Department stating that the applicant had never notified the respondent that he had an accident on 10 January 2010.  On the contrary, the applicant only informed the respondent that he had back pain.

(12)  At the end of November 2010, the respondent received a letter from the Labour Department attached to which was a Notification of Accident dated 24 November 2010 filed by the applicant with the Labour Department in respect of an accident on 5 March 2010. 

(13)  On 11 December 2010, the respondent sent a letter to the Labour Department stating that the respondent had never received any notification from the applicant that he had an accident on 5 March 2010. 

(14)  The alleged accident on 5 March 2010 could not have happened.  The respondent took over the site only in February 2010.  In March 2010, only the foundation work was being carried out.  Hence, only re-bars of 12 metres long would be used.  There were no re-bars of any shorter length such as 3 metres as alleged by the applicant.

(15)  As far as the respondent is concerned, accidents at construction sites are not uncommon.  If there was an accident at a construction site, the foreman would inform the safety department of the respondent.  The respondent would also report the matter to the Labour Department as well as the insurance company.

13. Fung gave evidence that he did not receive any notification from the applicant that the latter had an accident at the site on 5 March 2010.  He said that if he had received such notification, he would have informed the safety department.  Fung also said that there were only re-bars of 12 metres long at the site in March 2010.

14. Choi gave evidence that he did not receive any notification from any foremen or the applicant that the applicant had an accident at the site on 5 March 2010.  He said that if there was an accident at the construction site, the foreman would inform the safety department of the respondent.  The respondent would also report the matter to the Labour Department as well as the insurance company.

15. Choi also testified that on 28 September 2011, he carried out an investigation of the accident.  All the workers including Pun said that they did not know the applicant had an accident at the site on 5 March 2010.  He asked the workers including Pun to sign statements of investigation to state whether they knew the applicant had an accident at the site on 5 March 2010.  In the statement of investigation signed by Pun on 28 September 2011, it was stated that Pun did not know the applicant had an accident at the site on 5 March 2010.

THE ISSUE

16. The issue before the court is whether the applicant sustained an injury in an accident at the site on 5 March 2010 and whether such injury arose out of and in the course of the applicant’s employment with the respondent. 

17. This is primarily a question of fact.

TEST IN ASSESSING THE CREDIBILITY OF A PARTY’S CASE

18. In Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513, Deputy High Court Judge Thomas Au (as he then was) observed that in assessing the credibility of a party’s case, the court should take into consideration the following (at paragraph 53):-

“(1) Whether the party’s case is inherently plausible or implausible;

(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility; and

(4) The demeanour of the witness.”

19. This dicta was recently cited with approval by the Court of Appeal in Ageas Insurance Company (Asia) Ltd v Lam Hau Wah Inneo, CACV65/2014 (unreported, 9 January 2015) at paragraph 38 per Kwan JA.  See: Singh Harjit v Determination Business Ltd t/a Muse Studio, DCEC 1082/2011 (unreported, 27 February 2015) at paragraph 12 per Deputy District Judge Sanjay A Sakhrani. 

20. In my view, the contemporaneous documents provide the best guide as to what actually happened.  As the Court of Appeal observed in Esquire (Electronics) Ltd v Hong Kong & Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, per Stock JA (as he then was) at paragraph 158 at p.494, where there exists a wealth of contemporaneous documents, credibility is to be tested by reference most particularly to them.

21. There is no dispute that the burden is on the applicant to prove that he sustained an injury in an accident and that such injury arose out of and in the course of his employment with the respondent.

ANALYSIS OF THE EVIDENCE

22. Adopting the approach set out in section C above, I find the applicant’s case and the evidence of his witnesses inherently incredible in light of undisputed or indisputable evidence.

23. First, the applicant’s allegation that he sustained an injury in an accident at the site on 5 March 2010 is contradicted by the following contemporaneous medical notes of Queen Elizabeth Hospital:-

(1) 6 March 2010:-

(a) Triage assessment (“TA”): á [increased] moderate pain x [times] few days.

(b) Statistics (“STA”): Case classified as “Non-Traumatic”.

(c) History and Clinical Findings (“HCF”): Low back pain for a few days.  History of IOD[2] [Injury on duty] 6/12 [6 months] ago.[3]

(2) 9 March 2010:-

(a) TA: No recent injury.

(b) STA: Non-Traumatic.

(c) HCF: Back injury 4-5 months ago

(3) 12 March 2010:-

(a) TA: Injury^o [No injury].

(b) STA: Non-Traumatic.

(c) HCF: Hx [History][4] of IOD years ago.

(4) 15 March 2010:-

(a) TA: LBP [low back pain] x 10/7 [10 days]

(b) STA: Traumatic – industrial.

(c) HCF: Back sprain 8/12 [8 months] ago while lifting heavy object.  Back pain again 6.3.2010.

(5) 18 March 2010:-

(a) TA: LBP after heavy lifting 8 months ago.

(b) STA: Non-Traumatic.

(c) HCF: Back pain for 8-9 months after heavy lifting.

(6) 20 March 2010:-

(a) TA: Lt [Left] LBP x 8-9/12 [8-9 months]

(b) STA: Non-Traumatic

(7) 23 March 2010:-

(a) STA: Traumatic – industrial.

(b) HCF: LBP when he lifted heavy object 06/03/10.

(8) 27 March 2010:-

(a) TA: On and off back pain x 8/12 [8 months].  No recent injury.

(b) STA: Non-Traumatic.

(c) HCF: On and off back pain.  No recent injury.

(9) 31 March 2010:-

(a) TA: Moderate LBP x 8-9/12 [8-9 months].

(b) STA: Non-Traumatic.

(c) HCF: LBP x 8/12 [8 months].

24. None of the above contemporaneous medical notes recorded any injury sustained by the applicant in an accident on 5 March 2010.

25. Of these medical notes, I find the one dated 6 March 2010 important because it is likely to obtain the applicant’s first and most contemporaneous account of his injury.  As noted in paragraph 23 above, the medical note dated 6 March 2010 stated that the applicant had low back pain for a few days and that he had a history of injury on duty 6 months ago.  The medical notes did not state that the applicant had sustained an injury on duty the day before.  This is significant because if the applicant had sustained an injury on duty the day before, there was simply no reason why the medical notes did not contain such description.  This is particularly so because the medical notes stated that the applicant had a history of injury on duty 6 months ago.  This showed that the medical practitioners who took the medical notes knew or would be told whether or not an injury was sustained on duty.  My analysis also applies to the other medical notes set out paragraph 23 above.

26. Under cross-examination the applicant said that when taking the medical notes the medical practitioners misunderstood him as his English was poor.  The applicant was in effect saying that the medical notes were inaccurate or incomplete.  This allegation never appeared in the applicant’s witness statement.  Furthermore, the applicant has through his solicitors’ letter dated 15 February 2014 confirmed that the information provided by the applicant as recorded in the medical notes taken by the medical practitioners of Queen Elizabeth Hospital was accurate.  I have no hesitation in rejecting the applicant’s allegation. 

27. Mr Sadhwani submits that there is no authority on the weight to be attached to medical notes and reports.  With respect, I do not agree.  There are many cases in which the courts have taken into account medical notes and reports when considering whether an accident has occurred.  See, in this context, Sanjeev-Kumar v Fung Wong Truck Service Company Limited (unreported, DCEC 1765/2012, 4 July 2014), at paras 19-22 per Deputy District Judge Phillis Loh; Gill Ajmer Singh v Wah Hing Scaffolding Engineering Ltd & Another (unreported, DCEC 348/2010, 2 October 2012), at paras 43-54 per Deputy District Judge R Lai; Ali Liaqat v Go Sing Washing Co o/b Tindex Ltd(unreported, DCEC 1571/2010, 8 March 2013) at paras per HH Judge M Wong; Tse Sin Yee v Wing Wah Cake Shop Ltd (unreported, DCEC 251/2008, 7 June 2010) at paras 38-41 per HH Judge Leung and Singh Balwinder v Sino Phil Engineering Services Ltd & Another(unreported, DCEC 374/2003, 20 July 2007) at paras 23-26 per Deputy District Judge ST Poon.  As a matter of common sense, the medical notes and reports, which are contemporaneous documents, are relevant to the question of whether an accident has occurred. 

28. Mr Sadhwani also submits that the medical notes are not the “primary evidence” of whether an accident occurred and that the primary source is what the applicant and Pun stated in their evidence.  He submits that the medical notes are not relevant as to the credibility of the applicant.  These submissions ignore the principle that whether an allegation is credible is to be tested against, inter alia, contemporaneous documents.  

29. Mr Sadhwani draws the ourt’s attention to some of the medical notes which he submits support the applicant’s case that he sustained an injury in an accident on 5 March 2010:-

(1)   With respect to the medical notes dated 15 March 2010 where it is stated that there was a “back pain again 6.3.2010”, as rightly submitted by Mr Wong, the medical notes showed that the applicant had back pain again on 6 March 2010.  They did not show that the applicant had sustained an injury in an accident on 5 March 2010.  Indeed, the medical notes stated that the applicant had a back sprain 8 months ago. 

(2)   With respect to the medical notes dated 23 March 2010 where it is stated that “LBP when he lifted heavy object 06/03/10”, again, as rightly submitted by Mr Wong, the medical notes showed that the applicant lifted heavy object on 6 March 2010.  This is inconsistent with the applicant’s case that he sustained an injury in an accident on 5 March 2010. 

(3)   With respect to the medical note dated 10 April 2010, as fairly accepted by Mr  Sadhwani, the words “IOD 5/3/2010 back sprain whilst lifting heavy object” were contained in a document which was not part of the medical note dated 10 April 2010.  Mr Sadhwani also fairly accepted that that document is dated much later than the medical note dated 10 April 2010, apparently on or about 10 September 2010.  This document is not a contemporaneous document in the same way as the medical notes referred to in paragraph 23 above.

(4)   Mr Sadhwani also refers to the medical notes of the Yau Ma Tei Jockey Club Out Patient Clinic.  But the medical notes dated 9, 13 and 27 April 2010 did not record that the applicant had sustained an injury in an accident on 5 March 2010.  In any event, these medical notes are not contemporaneous documents in the same way as the medical notes referred to in paragraph 23 above.

30. Second, the applicant’s evidence in relation to his notification to the Labour Department about the accident on 5 March 2010 is unsatisfactory.

31. I first set out below the undisputed facts in relation to this issue:-

(1)   As noted, on 26 August 2010, the applicant filed a Notification of Accident with the Labour Department in respect of an accident on 11 January 2010.[5] At trial, this was called the “3^rd accident” by the parties.  However in this Notification of Accident the applicant made no mention of the alleged accident on 5 March 2010.  In this Notification of Accident, the applicant stated that sick leave granted to him due to the accident on 11 January 2010 were from 12 January 2010 to 24 August 2010.  This was further confirmed by an undated statement filed by the applicant with the Labour Department in which he stated that he regarded his sick leave since 12 January 2010 as having resulted from his accident on 10 January 2010. 

(2)   It was only on 24 November 2010 that the applicant filed a Notification of Accident with the Labour Department in respect of the alleged accident on 5 March 2010.  In this Notification of Accident, the applicant stated that sick leave granted to him due to the accident on 5 March 2010 were from 6 March 2010 to the date of the Notification of Accident, ie, 24 November 2010.  

32. Under cross-examination, when he was asked whether when he reported the January 2010 accident to the Labour Department in August 2010 he also reported the 5 March 2010 accident, the applicant first said that he did report the 5 March 2010 accident but that the Labour Department did not record it in the form.  Later in his testimony, the applicant said that he went to the Labour Department in August 2010 with his friend but that his friend did not notify the Labour Department of the 5 March 2010 accident.  I find the applicant’s evidence contradictory and incredible in this respect.  

33. The applicant said that he regarded the sick leave granted from 12 January 2010 to 24 August 2010 was due to the accident in January 2010.  But this is inconsistent with the applicant’s claim in the Notification of Accident dated 24 November 2010 that the sick leave granted from 6 March 2010 to the date of the Notification of Accident (ie 24 November 2010) was due to the accident on 5 March 2010.  When this inconsistency was put to him, the applicant could not give any satisfactory explanation.  I find the applicant’s evidence contradictory and incredible in this respect.

34. Third, Pun’s evidence in relation the statement of investigation signed by him on 28 September 2011 is contradictory and incredible:-

(1)   As noted, in the statement of investigation signed by Pun on 28 September 2011, it was stated that Pun did not know the applicant had an accident at the site on 5 March 2010.

(2)   In paragraph 7 of his supplemental witness statement dated 9 June 2014, Pun alleged that the signature on the statement of investigation was not his signature.  However, under cross-examination he changed his evidence and alleged that he might have signed the statement of investigation as he would sign whatever documents the respondent asked him to sign.  He further said that the name at the top of the statement of investigation (“PUN NIRMAL”) and that the date at the bottom of the statement of investigation (“28/9/2011”) “looked like” his handwriting.

(3)   This was a very significant change of evidence for which Pun has failed to provide any satisfactory explanation. Pun’s change of evidence made him a highly unreliable witness.

35. I reject Pun’s allegation in his supplemental witness statement that the signature on the statement of investigation was not his.  I accept Choi’s evidence that the signature on the statement of investigation was Pun’s.  I further accept Choi’s evidence that when he carried out an investigation on 28 September 2011, all the workers including Pun said that they did not know the applicant had an accident at the site on 5 March 2010.  I also reject Pun’s evidence that on 5 March 2010 the applicant told him that he had a work accident and he (the applicant) had informed Fung about the accident.

36. Fourth, the applicant’s evidence as to how the accident had occurred is unsatisfactory:-

(1)   The applicant gave evidence that the re-bars he was instructed to move were of 1.3 to 3 metres long.  He said that those were his estimates but that they would not be longer than 3 metres.

(2)   The applicant’s evidence is inconsistent with the description of the accident contained in the Notification of Accident dated 24 November 2010 filed by him with the Labour Department. There the applicant said that the iron rods he was instructed to carry were 2.5 to 4 metres long.

(3)   When this inconsistency was point to him, the applicant said that the figure of 4 metres was not given by him but by the person who prepared the description and that the description was wrong. However, the applicant could not explain how the figure of 4 metres came from or why the person who prepared the statement could come up with a wrong figure.

(4)   Yuen and Fung’s evidence that the respondent took over the site in February 2010, that in March 2010 the construction work on the site was still in a preliminary stage involving foundation work, steel reinforcement work and steel fixing work all of which only required re-bars of 12 metres long, was not seriously challenged by the applicant in cross-examination.  I accept their evidence, which sounds reasonable. 

(5)   In cross-examination, Yuen and Fung were asked whether it was necessary to cut the 12 metres re-bars at that stage of the work, and both answered that it was not necessary to do so. Again, I accept their evidence without hesitation.

37. I find that the respondent took over the site in February 2010, that in March 2010 the construction work on the site was still in a preliminary stage involving foundation work, steel reinforcement work and steel fixing work all of which only required re-bars of 12 metres long and that there was no cutting of re-bars in March 2010.  It follows that it was not possible for the applicant to have carried a re-bar of 3 metres long.  I reject the applicant’s allegation that he was carrying a re-bar of 3 metres long and that he sustained an injury in carrying such re-bar at the site on 5 March 2010.

38. In conclusion, I find the applicant and Pun to be unreliable and unconvincing witnesses.  Their evidence in a number of important respects was contradictory and incredible (as set out above).  I prefer the evidence of the respondent’s witnesses where it conflicts with that of the applicant and Pun.

39. I further find that the applicant has failed to discharge the burden of proving that he sustained an injury in an accident at the site on 5 March 2010 and that such injury arose out of and in the course of his employment with the respondent. 

CONCLUSION

40. The applicant’s claim is dismissed. I make an order nisi that the costs of this action be to the respondent to be taxed if not agreed with certificate of counsel.  The applicant’s own costs are to be taxed in accordance with the Legal Aid regulations.  Unless any of the parties applies by summons to vary the same, the costs order nisi shall be made absolute within 14 days from today. 

41. Last but not least, I thank counsel for their assistance in this matter.