ABDUL WAHED v. MUHAMMAD RAZZAQ t/a KHUSSA PALACE

DCEC 456/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 456 OF 2007

--------------------

--------------------

Dates of hearing  :  13 – 14 May, 2008

JUDGMENT

Background

1.  This is a claim for employees compensation brought by Mr. Wahed relating to an accident on 4 June 2006.  The facts are very much in dispute, as Mr. Wahed and his employer, Mr. Razzaq, have presented polarized   versions of the events which occurred in the morning of 4 June 2006. 

2.  What is not disputed is that Mr. Wahed was employed by Mr. Razzaq since November 2005 as a sales assistant at Mr. Razzaq's shop at Shop 31, 78 Stanley Main Street.  The shop comprised a confined area which, on Mr. Wahed's evidence, is about 4 feet wide, 13 feet 6 inches deep, and 7 feet 6 inches in height.  There is a small opening in the ceiling, leading to a storage space in the false ceiling.  From photographs adduced in evidence, the 2 sides of the shop are lined with racks and shelves for displaying and storage of goods sold, which consist mainly of ethnic style clothing, assessories, bags and shoes.  It would not be controversial to describe the shop as cramped, with only a narrow space between the goods lined on both sides.

3.    Mr. Wahed's evidence is that some time after 10:15 a.m. on 4 June, 2006, he was instructed by Mr. Razzaq to put away some stock in the shop.  In the course of doing this, while he was climbing up to put some goods into the storage space in the false ceiling, he fell from a height and sprained his left knee.  Mr. Wahed claimed that at the time of his fall, Mr. Razzaq was in the shop but instead of helping him, Mr. Razzaq ran out of the shop instead.  Mr. Wahed called for an ambulance with his mobile phone.  The ambulance could not find its way to the shop, and Mr. Wahed claimed that he walked from the shop for about 2 minutes to the ambulance on the main street, and was taken by ambulance to the hospital where he was treated. 

4.  According to Mr. Razzaq, he had discovered an irregular item in the books when he reviewed the account records of the shop on 2 June 2006.  On one transaction conducted on 28 May 2006 (when Mr. Razzaq was not in Hong Kong), a customer had purchased goods at a total price of $1150.  He was recorded by Mr. Wahed to have paid by Visa credit card, but the amount recorded by Mr. Wahed in the ledger to have been paid by credit card was $650.  According to Mr. Razzaq, the bank statements also confirmed the Visa transaction in question to be $650 only.  When Mr. Razzaq asked Mr. Wahed about this, the only reason Mr. Wahed gave to Mr. Razzaq was that he had allowed the customer to pay $500 in cash later, and that the customer would pay the shortfall in a few days time (which never happened).  On 3 June 2006, Mr. Razzaq spoke to Mr. Wahed about the matter again, but Mr. Wahed would not restore the $500 shortfall.  Mr. Razzaq claims that he discussed the matter with his wife on 3 June 2006, and decided to terminate Mr. Wahed's employment the next day as he felt that he could not trust Mr. Wahed any more. 

5.   Mr. Razzaq's evidence is that on 4 June 2006, he went to the shop earlier than usual, for the purpose of dismissing Mr. Wahed.  Mr. Wahed arrived at the shop at about 10:20 a.m..  Mr. Razzaq claimed that he told Mr. Wahed that he had decided to terminate Mr. Wahed's employment since he had stolen the $500.  He told Mr. Wahed that he did not know how many times Mr. Wahed had stolen from him and he had no confidence in him anymore.  Mr. Razzaq claims that he paid what he calculated to be the balance of the salary due to Mr. Wahed, by a cash payment of $1037 eventually.  Mr. Razzaq's evidence is that Mr. Wahed then argued with him and demanded to have one month's salary in lieu of notice.  Mr. Razzaq refused.   An argument ensued  and Mr. Wahed said that he would go to the Labour Department.  Mr. Razzaq claims that Mr. Wahed tried to provoke Mr. Razzaq to fight with him, and acted as if he would attack Mr. Razzaq, but nothing actually happened.  Mr. Razzaq said that when Mr. Wahed was finally ready to go, he said to Mr. Razzaq that he wanted to collect his telephone charger from under the stool in the shop, and according to Mr. Razzaq, Mr. Wahed then deliberately fell down and hit his arm against the stool.  He stood up and accused Mr. Razzaq to have pushed him.  He showed Mr. Razzaq the bruise on his forearm and said to Mr. Razzaq, "See what I can do to you."  According to Mr. Razzaq's evidence, Mr. Wahed then left the shop on his own before 11 a.m..  Mr. Razzaq only found out shortly afterwards from the other shopkeepers that Mr. Wahed had called the ambulance and gone to the hospital.  Mr. Razzaq called his wife and on her advice, Mr. Razzaq went to the Stanley Police Station to report the matter of Mr. Wahed's suspected theft.

6.  The issues which arose for determination at trial are :

(1)   whether Mr. Wahed sustained injuries in the manner he claimed, in the course of his employment;

(2)   if Mr. Wahed had sustained injuries in the course of his employment, what were the injuries sustained by Mr. Wahed as a result; and

(3)   if Mr. Wahed had sustained injuries in the course of his employment as claimed, the amount of compensation payable.

Whether Mr. Wahed sustained injuries in the manner he claimed

7.  The burden of proof is on Mr. Wahed to establish, on a balance of probabilities, that the injuries he sustained were indeed caused by an accident arising out of and in the course of his employment.  His claim is that he injured his forearm and left knee as a result of falling from a height in the course of climbing up to put goods in the storage space in the shop.

8.  Mr. Massie appearing for Mr. Wahed submits that so long as Mr. Wahed had the accident, no matter how it happened, Mr. Razzaq is liable to pay compensation and it does not matter that there may be small discrepancies in Mr. Wahed's description as to how the accident happened and how he fell.  However, in view of the totally divergent accounts given by Mr. Wahed and Mr. Razzaq as to the events in the morning of 4 June 2006, whether there was an accident depends on the witnesses' credibility and whose version of events I accept as being credible.

9.  After hearing the testimony given by Mr. Wahed and Mr. Razzaq respectively, and after reviewing the evidence including the statements given by Mr. Wahed and Mr. Razzaq to the police and the statements filed in these proceedings, I have come to the conclusion that Mr. Wahed's accounts of how he met with the accident are full of contradictions and inconsistencies to be unreliable, and that his evidence is not believable.

10.  In the Notification of Accident ("Notification") which Mr. Wahed himself made and sent to the Labour Department on 21 June 2006, and I would add that this is most contemporaneous with the alleged accident on 4 June 2006, Mr. Wahed himself described how the accident happened, as follows :

"I (fall) down from (stool) I tried to get the things from stock on the stool."

11.  In the context of his evidence given in court, I take his description above to mean that he was trying to get something from the storage space in the false ceiling, when he fell from the stool. 

12.  In his statement made to the police on 26 June 2006, not long after the Notification to the Labor Department, Mr. Wahed's description of the accident did not stray far from the statement made in the Notification.  He said that he was packing up things in the shop, when he stood up on a stool.  He said he accidentally slipped from the stool and fell on some aluminium items on the floor.  However, Mr. Wahed said in this police statement that he had stood on the stool to “push something up”, presumably into the storage space in the false ceiling, as opposed to his earlier statement that he was getting something from the storage space.

13.  On 29 August 2007, Mr. Wahed made his first statement in these proceedings.  He said that he was putting away stock in the storage space.  He further stated:

"My right foot was standing on a metal stool and my left foot was standing on top of a glass panel.  When I realized the glass panel was about to break, I retreated my left foot and caused me lost ( sic) balance.  I firstly fell onto the metal stool and then on to ground from about 4 1/2 feet in height with my left leg landed on the ground.  I therefore sprained my left knee."

14.  On 31 March 2008, Mr. Wahed made his second statement in these proceedings.  He elaborated on how he had his fall, as follows:

"I first stood on the two metal stools, moved my left leg onto the aluminium shelf next to it … I then moved my right leg onto the top of the aluminium shelf.  I further moved my left leg onto the top of the aluminium shelf.  Then, my both legs stood on the top of aluminium shelf …, I further moved my left leg onto the top of the lower glass panel …"

15.  Mr. Razzaq pointed out that Mr. Wahed's second statement was filed as a result of a statement filed by Mr. Razzaq in these proceedings on 8 December 2007, when Mr. Razzaq claimed that due to the distance between the stool and the glass panel in the shop, it would not be possible for a person to spread his 2 legs and have 1 foot on the stool and the other foot on the glass panel at the same time.

16.  During his oral testimony in court, Mr. Wahed essentially adhered to the account given in his second statement of 31 March 2008.  He elaborated further by explaining that he first stood on the 2 stools which were stacked together.  He then stepped onto one of the aluminium racks beneath the top of the aluminium shelf, before stepping onto the top of the aluminium shelf.  He stood on the top of the aluminium shelf, before putting his left foot on the glass panel.  He said that throughout, he was holding in his hands the items of stock which he was going to put into the storage space.  When Mr. Razzaq challenged how he could climb onto the aluminium shelf and then the glass panel whilst holding these items of stock, Mr. Razzaq then said that he was only carrying one small bag in one hand, which he first put on the top of the aluminium shelf, before climbing up and then retrieving the bag to push it into the storage space in the false ceiling, which was easy to do as he did this all the time.

17.  At one stage in cross-examination, Mr. Wahed said that his right foot was on the glass panel, and his left foot was on the top of the aluminium shelf, which was inconsistent with the earlier accounts he had given.

18.  Mr. Razzaq's case is that there was never a fall as Mr. Wahed claimed, and that Mr. Wahed had inflicted the injury on himself as a result of Mr. Razzaq dismissing Mr. Wahed on 4 June 2006 for theft, in order to get money out of Mr. Razzaq or to make trouble for Mr. Razzaq.  Whether Mr. Wahed had, as Mr. Razzaq claims, stolen money from the shop and whether Mr. Razzaq is liable to Mr. Wahed for wages alleged to be in arrears, are not issues for determination by this Court in these proceedings.  However, I can find nothing in the evidence including the statements made by Mr. Wahed and Mr. Razzaq to the Police which casts doubt on the veracity of Mr. Razzaq's claim that on 4 June 2006, he had reason to believe that Mr. Wahed had misappropriated at least $500 from the shop by reason of the irregular transaction that was recorded for 28 May 2006, and that he had reason to believe that he was justified to terminate Mr. Wahed's employment.  On the core issue of whether there was a dismissal on 4 June 2006, I prefer and accept Mr. Razzaq's evidence.

19.  In contrast, and having carefully considered Mr. Wahed's evidence and all the photographs exhibited, I find Mr. Wahed's final account of how he had climbed up and fallen when he put his left foot on the glass panel to be incredible.  Examining the photographs, I find it incredible that Mr. Wahed would climb onto the top of the aluminium shelf.  From the photographs, it is highly improbable that the aluminium mesh racks and shelf would be able to hold the weight of any one climbing onto the shelf and standing with 2 feet on the top of the aluminium shelf.  The aluminium shelf in question appeared flimsy and narrow in depth.  The glass panel itself was also narrow. Importantly, on Mr. Wahed's evidence, the shop was only about 7 feet in height.  I find it incredible that Mr. Wahed would have to climb onto the top of the aluminium shelf, and then on to the glass panel above it, in order to put the goods in question into the storage space in the false ceiling.  He should have been able to push the bag which he said he was carrying into the storage space, whilst standing on the metal stool.  On Mr. Wahed's evidence, he was only carrying a small bag, and he was only going to push the bag up, and not to climb into the storage space.

20.  As I find Mr. Wahed's account of how the accident allegedly happened to be totally unreliable, I do not accept that he has proved, on a balance of probabilities, that his injury resulted from an accident in the course or arising out of his employment as he claimed.

21.  In case I am wrong on the question of liability, I shall consider the next two issues.

What were the injuries sustained by Mr. Wahed

22.   Mr. Wahed was taken by ambulance to the Accident and Emergency Department of Pamela Youde Nethersole Eastern Hospital on 4 June 2006.  On examination there, he was shown to have marked left knee pain, with impaired left knee movement.  There was no fracture.  He was discharged with sick leave.  He attended the Tseung Kwan O Hospital on 8 June 2006, complaining of persistent left knee pain, and diagnosed with a sprained left knee.  He was discharged on the same day with sick leave from 9 June 2006 to 15 June 2006, and thereafter, sick leave was granted for a total of 14 months, with Dologesic or Ibuprofen and/or Famotidine tablets and analgesic balm ointment prescribed as treatment.

23.  On the basis of the medical reports, I accept that Mr. Wahed was admitted and treated for sprained left knee.

The amount of compensation payable

Section 9

24.    According to the Certificate of Review of Assessment issued by the Employees' Compensation (Ordinary Assessment) Board dated 2 January 2008, against which there is no appeal, Mr. Wahed was assessed to have suffered 2% permanent loss of earning capacity. 

25.  Mr. Wahed's monthly wages are in dispute.  According to the List of Earnings, Mr. Razzaq claims that Mr. Wahed's monthly wages from November 2005 to 3 June 2006 come to an average of $5,650.  Mr. Wahed claims that his monthly wages prior to the accident were $9,000.  He relies on a cheque dated 9 May 2006, but Mr. Razzaq claims that this included Mr. Wahed's salary of $7,374, and the balance being a loan extended by Mr. Razzaq on Mr. Wahed's request.  Mr. Massie asked the Court to adopt the sum of $7,300 as Mr. Razzaq's confirmation of the salary paid to Mr. Wahed for one month, in the course of a hearing before the Labour Tribunal.  From the transcript, Mr. Razzaq did not say that the sum of $7,300 was the salary paid for the month immediately preceding the accident (within the meaning of s.11 (1) (a) of the Ordinance).  It is however clear from the list compiled on behalf of Mr. Razzaq, as attached to the witness statement of his wife, Madam Lam, that for the months of March, April and May 2006, Mr. Wahed was paid monthly wages of $7,173.50, $7,621.40 and $5,867.50 respectively, hence giving an average sum of $6,887.47 for the 3 months.  Mr. Razzaq further stated at the Labour Tribunal that Mr. Wahed's average monthly wages from November 2005 to 3 June 2006 were $5,000 to $6,000.

26.  From the limited evidence available, I find Mr. Wahed's average monthly earnings to be $6,887.47.

27.  If compensation is payable to Mr. Wahed, the amount payable under s.9 of the Ordinance is $6,887.47 x  96 x 2% = $13,223.94.

Section 10

28.  The Certificate of Review of Assessment certifies 14 months of sick leave.  The compensation payable under s. 10 is: $6,887.47 x 14 months x 4/5 =   $77,139.66.

Section 10A

29.    I allow Mr. Wahed's claim for medical expenses, in the total sum of $100 sought.

Summary

30.    The total compensation, if any, payable to Mr. Wahed is:

(1)  compensation for permanent partial incapacity	$13,223.94
(2)  compensation for temporary incapacity	$77,139.66
(3)  medical expenses	$100.00
	$90,463.60

31.  If Mr. Wahed is entitled to compensation, he is further entitled to interest on the sum of $90,463.6 at half judgment rate from the date of the accident, i.e. 4 June 2006, to the date of judgment.

Conclusion

32.    In view of my judgment on liability, Mr. Wahed's claims in this action are dismissed, with the costs of the action to be paid by him to Mr. Razzaq, to be taxed if not agreed.