FERNANDEZ, Melecia T. v. KWAN, JOSEPH CHI HUNG

DCEC 729 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION NO. 729 OF 2006

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JUDGMENT

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1.  This is an Application for compensation pursuant to Section 9 (permanent partial incapacity), 10 (temporary incapacity) and 10A (medical expenses) of the Employee’s Compensation Ordinance, Cap. 282 (“the Ordinance”).

2.  I dismiss the Application with costs to the Respondent, to be taxed if not agreed.

3.  Matters that I considered are set out in the paragraphs that follow.

4.  It was not in dispute that, at all material times, the Applicant worked as a domestic helper for the Respondent. The employment commenced in March 2003 and ran its full course to end in March of 2005.

5.  Both the Applicant and the Respondent appeared for trial without legal representation. The Applicant gave evidence herself. She called an additional witness, Miss CORRAL, who deposed to the Applicant complaining about being hurt. The Respondent gave evidence. It was clear that he did not know what, if anything, had happened. It was the Respondent’s wife, Mrs. Cindy KWAN, who dealt with the Applicant on a day-to-day basis. Whatever the Respondent knew about the case, he learned from his good wife. Mrs. KWAN came forward to give evidence on the Respondent’s behalf.

6.  Documents in the Trial Bundle were produced by the various witnesses in the course of their evidence. This was save for pages 7, 10 to 12 and 18 to 21. Pages 7 and 10 to 12 are not relevant to the issues at trial. Pages 18 to 21 are repeated in pages 13, 51, 53 and 54 of the Trial Bundle. I gave the documents exhibit designations as they were produced. This was an otiose exercise - the documents exhibited could easily be identified in the Trial Bundle. In this judgment I have therefore only referred to those documents by their page number in the Trial Bundle. There is no witness statement from Miss CORRAL.

7.  In paragraph 1 of her statement dated 12 December 2006 (Trial Bundle page 24A), the Applicant referred to attachment marked “A”. No such attachment could be found. When asked about it, the Applicant said she could not find the attachment. According to the Applicant, this was a previous statement made by the Respondent at the Labour Tribunal. In this statement the Respondent allegedly complained about the Applicant sitting down whilst ironing clothes. Before me, the Respondent immediately denied having made such a statement. The Applicant proceeded to ask for an adjournment to locate this document. I thought parties have had more than sufficient time to prepare for trial. The application to adjourn was refused.

8.  Having heard all the evidence, I disbelieved the Applicant’s version. I preferred and had no hesitation in accepting the evidence of Mrs. KWAN.

Applicant’s case

9.  The foundation of the Applicant’s case is that sometime between 31 July and 24 August 2003 (2 August, if the evidence of Miss CORRAL is believed), she slipped on the living room floor of the Respondent’s home whilst going about her household chores.

10.  According to the Applicant, this happened at around 9.30 a.m. to 10 a.m. She finished cleaning the toilet and was walking back to the kitchen when she stepped in a pool of dog urine. As a result, she fell backwards sitting on the floor. It was not in dispute that the Respondent’s family kept a dog. Mrs. KWAN admitted in evidence that the dog had diabetes and, unless given daily injections, would become incontinent in the sense of urinating everywhere.

11.  On the same night of the accident, the Applicant complained to her witness, Miss CORRAL, about stepping in dog urine, falling and hurting her back.

12.  The Applicant felt severe pain right after the accident. Mrs. KWAN and her daughter witnessed her fall. Mrs. KWAN offered some ointment for her back.

13.  The pain in the Applicant’s back worsened. Some 3 weeks later, on 24 August, the Applicant went to the Filipino Workers Resource Centre to consult a Dr. FAJARDO, member of a Philippines medical team stationed there. Dr. FAJARDO was not registered as a medical practitioner in Hong Kong. The Applicant was diagnosed as having “low back pain X 3 weeks”  (Trial Bundle page 34. It is not easy to read this page).

14.  On 26 August 2003, the Applicant went to Caritas Medical Centre for treatment (Trial Bundle page 46, 59 and 60). By a medical certificate, a Dr. TONG recommended sick leave from 26 to 29 August 2003 inclusive (Trial Bundle page 60). The medical record stated, inter alia, “LBp X 4 weeks” and “S/F during work” (Trial Bundle page 46).        

15.  On 7 June, 9 and 19 October 2004, the Applicant attended Caritas Medical Centre for her back ailment (medical certificates appear at page 50 and 51 of Trial Bundle. 7 June and 10 to 11 October 2004 were recommended for sick leave. Appointment slip for 19 October appears at page 52 of Trial Bundle. There is no medical certificate for this date).

16.  Despite the Applicant’s back pain, Mrs. KWAN all along made the Applicant continue her household chores. The Applicant’s “responsibilities included cleaning the house, ironing, washing laundry, marketing, cooking, washing the car and taking care (of) a blind pet dog” (see Trial Bundle page 13). Mrs. KWAN neglected to give the Applicant   opportunity of medical treatment. Mrs. KWAN refused to pay her medical fees.

17.  On 26 April and 19 October 2006 the Applicant attended respectively Queen Elizabeth Hospital and the North District Hospital (medical certificates at Trial Bundle page 53 and 55. Both mentioned the Applicant was suffering from “low back pain”). Sick leave was recommended for 26 April and the 19 to 20 April 2006. The “Referral For Physiotherapy” document from Queen Elizabeth Hospital mentioned, inter alia, x-ray findings as “L4/L5” or “C4/C5” (the writing is not clear on this) followed by an indecipherable word (Trial Bundle page 54). The Applicant has an appointment with the Orthopaedics and Traumatology Department of the North District Hospital for 6 August 2007 (Trial Bundle page 57).

18.  The Applicant received physiotherapy treatment from Queen Elizabeth Hospital on 15 and 22 May 2006 (Trial Bundle page 54).

Respondent’s case

19.  Neither Mrs. KWAN nor any of her daughters witnessed the Applicant falling on the floor. Mrs. KWAN would already be at work around 9.30 a.m. to 10 a.m. and the daughters would either be at school or still sleeping.

20.  Mrs. KWAN did not know the Applicant had been to hospital on 26 August 2003 until that night when the Applicant mentioned the fact to her and requested reimbursement for the $100 hospital charges. Mrs. KWAN paid the Applicant and obtained from her the relevant hospital receipt as well as sick leave certificate (Trial Bundle page 59 and 60). This was so that Mrs. KWAN herself could claim reimbursement from the insurance company. 

21.  Mrs. KWAN asked the Applicant what was ailing her. The Applicant replied that she helped a friend to pack for the Philippines and sprained her back in the process. Mrs. KWAN did not give the Applicant any ointment because the Applicant had already been to the doctor.

22.  At the request of Mrs. KWAN, the Respondent signed a note made out to the attention of  “Joe Lau” (Trial Bundle page 59). That note together with the hospital receipt for $100 and the medical certificate for 26 August 2003 were relayed to the insurance company. The insurers later reimbursed Mrs. KWAN.

23.  On 9 October 2004, Mrs. KWAN accompanied the Applicant to hospital. This was because in October (after the Applicant returned from the Philippines), the Applicant mentioned a number of times that she had pain in the back. Mrs. KWAN felt this strange because the Applicant had never been asked to do heavy duties. Mrs. KWAN therefore went with the Applicant to hospital to find out what the matter was.

24.  Apart from hospital charges for 26 August and 9 October 2004, there was only 1 other occasion when Mrs. KWAN paid hospital fees for the Applicant. This was for 7 June 2004 when the Applicant was diagnosed as suffering from “URI” (Trial Bundle page 50).

Did the Applicant fall as alleged?

25.  I think it clear that if the Applicant did fall or slip and hurt herself as alleged, then she would have suffered “personal injury by accident arising out of and in the course of the employment” (Section 5(1) of the Ordinance). She will then be entitled to compensation and the issue becomes one of quantum.

26.  I do not accept the evidence of the Applicant. Her version of what happened that morning involved her going about her household chores. She had cleaned the toilet and was on her way to the kitchen (presumably to continue her work there) when she slipped on a pool of dog urine. On the Applicant’s evidence, it seemed not unusual for the dog to urinate on the floor of the house. In other words, urine on the floor was not something out of the ordinary. It was about 9.30 to 10 in the morning. There was no evidence that lighting was unfavourable so that the Applicant could not see the pool of urine or at least that it was difficult to see. There was no evidence that the Applicant was hurrying or that there was anything that obstructed her view of the floor. Given such circumstances, I considered it improbable that the Applicant would step in the urine (assuming there was urine) and then slip.

27.  The Applicant mentioned that Mrs. KWAN and one of her daughters were present and witnessed the incident. Mrs. KWAN even gave her ointment for the back. Mrs. KWAN gave evidence. She admitted there was a dog in the house. The dog, according to Mrs. KWAN, suffered from diabetes. Mrs. KWAN frankly admitted that if the dog did not get its daily injection, it would be urinating everywhere. The Applicant said she had given to Mrs. KWAN the hospital receipt on 26 August 2003. Mrs. KWAN again frankly admitted this (though she said she got it after returning from work). Mrs. KWAN told me that she then went on to claim reimbursement of hospital fees from the insurance company. This is borne out by documents produced at Trial Bundle page 58 to 60. Mrs. KWAN impressed me as an honest and reliable witness. I have no hesitation accepting her evidence.

28.  In relation to the Schedule of insurance policy (“insurance policy”, Trial Bundle page 58), I noted that the surname of the domestic helper is “FERNANDEE” and not the Applicant’s surname of “FERNANDEZ”. The other particulars, however, satisfy me that the insurance policy was in relation to the Respondent’s liability as employer vis-à-vis the Applicant. Such particulars included the previous Hong Kong identity card number of the Applicant (see Trial bundle page 29). The insurance policy was effective for 2 years from 1 April 2003 i.e. it was effective on the date of the alleged accident, 26 August 2003.

29.  The Applicant said that on the night of the accident, Mrs. KWAN asked for her passport “because…she will buy an insurance for” the Applicant (Trial Bundle page 14 first paragraph). This cannot be true. The insurance policy was already in place and effective. 

30.  The Applicant complained that after the accident her “health is getting poor and the pain was continious (sic).” She further complained that though she was supposed to go for weekly physiotherapy sessions, Mrs. KWAN did not give her money for this and neglected her illness. The Applicant still had to work and had to take painkillers every 4 hours (Trial Bundle page 4 and 14). The Applicant said that she could not “stand for long hours even 2-hours (sic) especially when ironing the clothes” and that she “had to do the ironing in a setting (sic) position just to relax” her lower back  (Trial Bundle page 24A). It was the Applicant’s case that the Respondent and Mrs. KWAN knew about her pain and difficulties at work.

31.  Neither the Respondent nor Mrs. KWAN appealed as callous persons. To a very large extent, fees for physiotherapy were covered by the insurance policy. Mrs. KWAN was in the insurance business herself. She had already claimed reimbursement of hospital fees for 26 August. I see no reason for her to shy away from claiming reimbursement from the insurers for further medical expenses or for compensation payable under the Ordinance. If the Respondent and Mrs. KWAN were as uncaring as the Applicant portrayed and they were aware of the Applicant’s ailment as well as impediment at work, they would certainly have brought the employment contract with the Applicant to a premature end. However, the undisputed fact is that the employment contract ran its full course to March 2005.

32.  As far as her injuries are concerned, the Applicant mentioned that on 26 August 2003 the attending doctor at Caritas Medical Centre told her that she suffered from inflammation of the muscle in the lower lumbar back (Trial Bundle page 24B, paragraph 3). I have already recited in the immediate preceding paragraph the Applicant’s evidence as to how her injury affected her. After the Applicant left the employ of the Respondent, her back injury continued to plague her.  She was told by doctors not to carry heavy things. She looked for jobs and realized that she could hardly manage to carry heavy things (Trial Bundle page 14 and 24D paragraph 9). In April 2006 the Applicant attended Queen Elizabeth Hospital. The doctor explained that her spinal cord was injured. The Applicant said that since the accident in August 2003 she has had “a slipped disc for more than 3 years” (Trial Bundle page 14).

33.  No medical personnel was called to give evidence in this case. What the doctors told the Applicant regarding her ailment as well as the contents of medical certificates or notes on the same subject (see paragraphs 13 to 15 and 17 above) comprised hearsay evidence. Mrs. KWAN also gave hearsay evidence of what a nurse told her on 9 October 2004 i.e. the cause of back pain complained of by the Applicant could not be ascertained. 

34.  The prohibition against admitting hearsay evidence in civil matters has effectively been removed (Part IV of the Evidence Ordinance, Cap. 8). In the usual scenario, the party seeking to produce hearsay evidence will issue a  “hearsay notice”  (see Section 47A of the Evidence Ordinance). No hearsay notice was ever issued in this case. Absence of such notice is not fatal - the hearsay evidence is still admissible (Section 47A(4) of the Evidence Ordinance). The issue is really one of weight (see also Section 49 of the Evidence Ordinance).

35.  The medical record of Dr. FAJARDO (Trial Bundle page 34), the medical record of Caritas Medical Centre (Trial Bundle page 46) and the “Referral For Physiotherapy” (Trial Bundle page 54) cannot be easily read or understood. Apart from the medical certificate for 7 June 2004, the other medical certificates recited that the Applicant suffered from “low back pain”, “back pain” or “back injury”. Even if I accepted that the Applicant had back pain or injury on the occasions she sought medical attention, the provenance of her pain (e.g. slipped disc or pulled muscle), and the event that caused her the pain rested on the evidence of the Applicant herself.

36.  Even on the Applicant’s own evidence, she did not fall from height. The Applicant is neither a tall nor heavy person. She just fell whilst walking and ended up sitting on the floor. The Applicant did not appear fragile. She confirmed that she has not had back pain or problems before. I find it improbable that the fall as told by her would cause her so much pain and inconvenience and for so long.

37.  I am not unmindful of the evidence of Miss CORRAL, witness for the Applicant. Her evidence was to the effect that on 2 August 2003 at about 10 p.m. or mid-night the Applicant telephoned asking for someone to massage her back. The Applicant explained that she slipped on dog urine and hit her back on the floor.

38.  Miss CORRAL has known the Applicant for some years prior to 2 August 2003. They are like sisters. For about 1.5 years the Applicant lived with her and was supported by her. In such circumstances and given the prolonged pain of the Applicant coupled with the callous attitude of the Respondent/ Mrs. KWAN, one would have expected a mantra of constant complaints by the Applicant to her. One would have also expected Miss CORRAL to “support” the Applicant by at least funding some of her required physiotherapy sessions or hospital treatment. There was no evidence of such. One might argue that when Miss CORRAL was in the box, her attention was only directed to the complaint on the night of 2 August. My observation of the Applicant and Miss CORRAL is that if there had been constant complaints by the Applicant or funding by Miss CORRAL, such would have been raised regardless of circumstances in Court. I note that in none of the Applicant’s statements or her given evidence in Court did she ever broach such matters. I further note the admitted close relationship between the Applicant and Miss CORRAL. I give no weight to the evidence of Miss CORRAL.

39.  There was a claim by the Applicant against the Respondent in the Labour Tribunal for, inter alia, outstanding wages. It was the Applicant’s case that though the contractual salary was $3,670 per month, the Respondent only paid her $2,500 per month for the first 17 months of her employment and $3,270 per month for the remaining 7 months (Trial Bundle page 64 to 80. See also Contract in Trial Bundle page 25 to 28).  It would appear that Miss CORRAL had also given evidence for the Applicant in the Labour Tribunal.

40.  The Labour Tribunal claim was dismissed. I will not be affected in my decision by such dismissal or the reasons therefor. The learned Presiding Officer of the Labour Tribunal found, inter alia, that the Applicant had been paid her full contractual wages throughout. The Applicant has appealed against that decision. Unless overruled on appeal, that decision estops the Applicant from again raising the issue of underpayment of wages before me (see paragraph 6 of the Application; Trial Bundle page 2).

41.  The Applicant has litigated in vain against her employer previous to the Respondent. At one point, she was charged for perjury in the Magistrate’s Court (Trial Bundle page 24G). By a letter dated 28 August 2006 the Labour Department Employee’s Compensation Division expressed their view that the Applicant’s injury was “unlikely to be caused by an accident arising out of and in the course of employment” (Trial Bundle page 62). According to Mrs. KWAN, the Applicant had been the recipient of numerous dunning calls and letters. I did not let any such information affect my decision in this case. I will simply say that I attaché nothing to the fact that this Application was commenced only in June 2006 or that the Applicant in the inchoate stages asserted that the accident happened in June 2004 (see Trial Bundle page 1 to 3).

42.  I did not find the Applicant or Miss CORRAL credible. In fact, I found them (the Applicant in particular) disingenuous. As stated earlier, the Respondent did not have personal knowledge of matters in issue. Mrs. KWAN was the person in the know. I accept the evidence of Mrs. KWAN without the slightest hesitation. I was satisfied that the Applicant did not slip and hurt herself as alleged. The present claims must fail.

43.  Despite my findings and conclusions just stated, I wish to say a few more words about this Application.

Compensation for temporary and permanent incapacity 

44.  It is not too clear whether the Applicant is claiming compensation for temporary partial or temporary total incapacity. She claims compensation for permanent partial (not total) incapacity.

45.  It pays to recite certain definitions under Section 3 of the Ordinance. Partial incapacity “means, where the incapacity is of a temporary nature, such incapacity as reduces the earning capacity of an employee in any employment he was engaged at the time of the accident resulting in the incapacity, and, where the incapacity is of a permanent nature, such incapacity…as reduces his earning capacity, present or future, in any employment which he was capable of undertaking at that time.”  Total incapacity “means such incapacity whether of a temporary or permanent nature as incapacitates an employee for any employment which he was capable of undertaking at the time of the accident resulting in such incapacity.”

46.  I recall the evidence of the Applicant herself to the effect that she continued working as domestic helper for the Respondent though she had to have intermittent rests, sit whilst ironing and take painkillers. Such evidence did not suggest incapacity for at least the year or so when she continued her employment with the Respondent (during which I found there had been no diminution of salary. See also paragraph 40 above). I also think that an employer hiring a domestic helper will not only be concerned with physical strength and endurance. There are other important attributes to look for like honesty, reliability as well as a caring-and-loving attitude. On the evidence before me, I am satisfied that whatever ailment afflicting the Applicant did not incapacitate her from being a domestic helper or in any employment which she was capable of undertaking in the sense as defined under Section 3 of the Ordinance. In any event, I reject the evidence of the Applicant both on the alleged accident and injury (be it the nature of the injury, the extent or its effect on the Applicant). The medical evidence that was available and that which could be understood did not support any claim for temporary partial/ total incapacity or permanent partial incapacity.

47.  I should mention Section 10(2) of the Ordinance. The material part reads “…a period of absence from duty certified to be necessary by a medical practitioner…shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.” As mentioned above in paragraphs 14, 15 and 17, certain medical certificates had been issued recommending sick leave. Is this deeming provision rebuttable? The Court in DCEC1095/2000 (judgment in Chinese) was of the view that it was and went on to hold it rebutted in that case. The Court of Appeal in Lau Man Keung v Yiu Wing Construction Co. Ltd., CACV 2232/2001, seemed also to hold such a view but decided the attempt at rebuttal failed in that case. In LKK Trans Ltd. V Wong Hoi Chung, FACV No. 14 of 2005, the Court of Final Appeal “was also invited to make certain pronouncements concerning the effect of medical certificates in the context of s 10(2) of the Ordinance…that invitation was declined.”

48.  My view is that the deeming provision is rebuttable. Compensation (for incapacity) is aimed at exactly that i.e. to compensate. It seems to defeat the aim if Section 10(2) precluded evidence showing that there is really nothing to compensate. I do not think that Legislature ever intended a windfall for the employee. For the sick leave recommended during the employment of the Applicant by the Respondent, I found that there was nothing to compensate (see also paragraph 46 above). I should point out that the medical certificates in this case “recommended” sick leave. Section 10(2) of the Ordinance requires such leave to be certified to be “necessary”. That which is “recommended” need not be “necessary”. In any event, I would have held that Section 10(2) did not apply in this case.

Medical expenses

49.  It is not clear whether the Applicant had to pay anything for her treatment by or consultation with Dr. FAJARDO. It is clear, however, that Dr. FAJARDO is not a medical practitioner registered under the Medical Registration Ordinance, Cap. 161 This fact precluded any medical expenses paid to Dr. FAJARDO from being part of the claim under Section 10A of the Ordinance (see definition of “medical expenses”, “medical practitioner” and “medical treatment” in Section 3 of the Ordinance).

50.  I accepted the evidence of Mrs. KWAN that she paid for the medical expenses relating to the Applicant attending hospital on 26 August 2003, 7 June and 9 October 2004.

51.  This leaves outstanding the claim for medical fees for 19 October 2004; 26 April, 15 and 22 May, 19 October 2006 and 6 August 2007. The evidence is not clear what amount, if any, was paid by the Applicant on those occasions. No receipts were produced as in the case for 26 August 2003 (Trial Bundle page 59). I note that it is possible to get waiver of medical charges (see Trial Bundle page 48 and 49). Be that as it may, I refer to Section 10A(6) of the Ordinance which reads: “Where an employee has paid for any medical treatment received by him he shall be entitled to recover the medical expenses which his employer is liable to pay…from his employer by serving on the employer a request in writing for the payment of medical expenses together with a receipt for the payment for the medical treatment.” Under Section 10A(7) the employer is given time to pay. In default of payment, the employee may then take legal action in the appropriate court or tribunal to recover the same. In my view, the serving of request in writing for payment together with receipt is a condition precedent to claiming under Section 10A of the Ordinance. There is no evidence of the Applicant serving any request on the Respondent coupled with receipt. I tend to think that if this had been done the Applicant would have already mentioned it in her witness statements or evidence given in Court. The present claim under Section 10A is misconceived.