FAN KWAN TAI v. WELL TECH ENGINEERING & CONSTRUCTION CO LTD AND ANOTHER

DCEC 695 / 2017

[2019] HKDC 847

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 695 OF 2017

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JUDGMENT

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Introduction

1.  Madam Fan Kwan Tai (“Fan”) made an application against Well Tech Engineering & Construction Company Limited (“R1”) and Kwan On Construction Company Limited (“R2”) (collectively, “Rs”) for compensation pursuant to the provisions in the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”) based on her allegation that on 2 June 2015 (“the Material Date”) she was injured in an accident (“the Alleged Accident”) at work.  Rs admitted Fan was their employeefor the purposes of the Ordinance but put Fan to strict proof of the Alleged Accident, and of the claimed quantum of compensation.

2.  The main issues in dispute were: -

(1)   Whether the Alleged Accident occurred (“Issue 1”); and

(2)   If so, what would be the quantum of compensation payable under the Ordinance (“Issue 2”).

3.  I presided over the trial.  It took 2 days.  Fan was the only witness.  She was skillfully cross-examined by Mr Pakco Chan, Counsel for Rs.  As I shall explain below, my factual finding after trial is that the Alleged Accident did not occur, and as such this action must be dismissed with costs.

The Alleged Accident

4.  Fan was 44 on the Material Date. She was working as a manual worker at a construction site.  According to her Application, translated to her by a law clerk of the Legal Aid Department and verified by her signature on the Statement of Truth on 28 March 2017, Fan alleged she sprained her back when she was carrying a heavy block of concrete (“the Object”) with her co-worker.  She alleged her co-worker failed to hold the Object tight, causing its weight to fall onto her in a sudden.  She alleged she then fell, with her buttock landing on the ground, causing injury to her back, and the pain “radiated to her left leg with numbness”.

5.  The significance of the precise way Fan pleaded her case (as set out above) would be apparent when I set out how her evidence contradicted her own case below.

Issue 1 – Liability

6.  Fan was represented throughout these proceedings.  Her pleading (in English) and witness statement (in Chinese) were professionally prepared with the assistance of lawyers.  With one major correction which I shall have to set out below, Fan adopted her witness statement as her evidence-in-chief.

7.  The major correction was this.  In her witness statement (verified by her Statement of Truth on 2 May 2018), Fan described the Alleged Accident as follows (in her paragraphs 7 to 9): -

“大約下午2時30分左右，釘板強指示我和他一起搬運一條石壆（長約3呎，重量估計為150磅的石屎條）圍著花糟邊。當時釘板強負責抬石壆的一邊，我負責抬石壆的另一邊，在抬起石壆時，對方突然跣手，石壆的重量遂傾向我，我一時承受不了過多重量，失去平衡，臀部跌落地上新建成的石屎邊，撞到腰、背部及盆骨位置。意外當時我的腰、背部及盆骨位置都感到痛楚，並覺得全身乏力，說話亦無氣。我向釘板強說：「強哥，你整跌我。」，他便問我能否站立及傷勢如何。由於痛楚和無力的關係，我坐在石屎邊上不能站立。當時我雙手在大腿上拓着石壆，石壆一邊由釘板強抬着，期間多次嘗試站起都不能。休息半小時後，我才能勉強站起來繼續和釘板強搬運該石壆，搬行約10呎，覺得近肛門位置疼痛。約下午3時，搬運完該石壆後，釘板強叫我休息，我便休息至放工。”

(“the Original Version of Events”)

8.  As one can see, the Original Version of Events was that after the Alleged Accident, Fan had the Object (3 feet long, weighting 150 lbs.) sitting on her thigh(s), with her hands beneath the Object, for half an hour, before Fan eventually stood up.  Mr Alex Lai, Counsel for Fan, sought leave to ask Fan to correct that before confirming the truth of the witness statement, which was granted. With leave of this Court, Fan clarified orally that “half an hour” should be “half a minute” instead.  In other words, Fan said what was written was wrong.

9.  I find that “correction” wholly incredible.  The Chinese phrases for “half an hour” (半小時) and “half a minute” (半分鐘) were completely different.  They looked completely different when written down or typed out.  They also sounded completely different, whether one pronounced them in the Cantonese dialect (半個鐘 / 半分鐘) or in Mandarin (半小時 / 半分鐘).  As stated above, the witness statement (in Chinese) was professionally prepared with the assistance of lawyers.  Fan could also read Chinese.  In my judgment, it was not a typo, and “half an hour” (半小時) must be Fan’s original version of the intended evidence, intended to be confirmed by Fan on oath at the trial, and Fan only changed her mind about what to say at the trial shortly before its commencement.  That, together with other matters which I shall set out below, showed to me Fan was an unreliable witness, and I should reject her evidence in so far as it was self-serving, which I do.

10.  Fan was skillfully cross-examined.  I received her evidence under cross-examination first-hand.  I also watched Fan’s physical demonstration of the motion supposedly involved in the Alleged Accident.  In my judgment, it was more likely than not that the Alleged Accident never happened, and I hold that to be the case on balance of probabilities.  My reasons for so holding are as follows: -

(1)   As set out in paragraph 9 above, Fan’s oral evidence of a resting period of half a minute was completely different from her original written statement of a resting period of half an hour, and I do not consider that to be a mere typo.  Fan was in my judgment a generally unreliable witness.

(2)   Under cross-examination, Fan also said her right leg hurt more than her left leg. She was, however, wholly unable to explain why, if that were true, her Application (which had been translated to her by a law clerk and verified by her signed Statement of Truth) had only ever complained of pain which radiated to her left leg, with no mention of her right leg being painful, and no attempt had ever been made for that to be corrected or amended even though she amended other parts of the Application as recently as on 13 March 2019, and signed a new Statement of Truth for the Amended Application, which was duly interpreted to her by a different law clerk.  In my judgment, it would be extremely unlikely, if not impossible, for 2 different law clerks to have made the same mistake in the interpretation and Fan’s Counsel most sensibly did not in any way seek to suggest that that could be what happened.

(3)   The suggested motion of the Alleged Accident, as shown and also orally explained by Fan to me in Court, were in my judgment inherently highly unlikely to have occurred in the manner as alleged by Fan.  According to Fan’s oral evidence and physical demonstration, her co-worker was of similar height as she was.  They were each holding one end of the Object, moving sideways.  The Object (which was 3 feet in length) ran roughly but not entirely parallel to the ground, with her end slightly higher than the end of the co-worker.  It was her case that her co-worker lost grip of the Object at his end so that the Object fell downwards at his lower end, but he soon regained his grip so that the Object did not fall all the way down to the ground.  If the Object moved in the manner as explained and physically demonstrated by Fan, the weight felt by her (who held the upper end) should not increase at all.  Having carefully considered the oral closing submissions of Fan’s Counsel on this specific issue I was only satisfied Fan’s version of events may not be wholly impossible – it was nonetheless plainly improbable.  In my judgment, it was more likely that Fan’s evidence was simply false.

(4)   After the improbability of Fan’s story was made clear to her, Fan added that her co-worker also pushed the Object towards her.  That was a brand-new allegation which did not feature in the Original Version of Events.  Push was quite obviously different from slip.  Given that this was a new case which did not feature in the Original Version of Events, and the unreliability of Fan as a witness generally, I reject this piece of evidence as a recent fabrication.

(5)   Fan alleged in Court that on the day immediately after the Material Date (i.e. 3 June 2015), she could not even sit or walk because of her pain. She alleged she took 4 days off between 4June 2015 and 7June 2015 and resumed work on 8June 2015.  Fan’s evidence is, however, inconsistent with the contemporaneous attendance record produced in Court and deemed authentic by operation of Order 27 rule 4 of the RDC, which said Fan attended work on 4, 5 & 6 June 2015 and had been paid by Rs for all 3 days.  This is yet another reason why Fan’s evidence is in my judgment unreliable.

(6)   Fan alleged in Court that on 30 June 2015 when she went to the Prince of Wales Hospital (“PWH”) to see a doctor, she could not even walk independently without assistance.  This, however, was contradicted by the medical report of PWH which recorded that on 30 June 2015 Fan managed to “walk independently”.  Further, the said medical report recorded that the finding of PWH’s physical examination of Fan was “unremarkable”, and that the X-ray films of Fan’s spine “showed no abnormality”.  PWH gave Fan some painkillers and 3 days of sick leave and discharged her.  There was absolutely no reason for the doctors from PWH to lie about these matters, and in my judgment, this showed it was Fan who lied.  At the very least, this is yet another reason why Fan’s evidence is unreliable.

(7)   Fan alleged in Court that while she lived in Tai Wai in the New Territories and felt so extremely painful all the time she could not walk, she nonetheless travelled all the way to Guangzhou in Mainland China for medical treatment.  I find that incredible.  If Fan could travel from Tai Wai to Guangzhou with no problem at all, or indeed if she chose to do such a thing, her medical condition at the time could not have been as bad as she described.  This is yet another reason why Fan is generally unreliable as a witness.

(8)   Fan was shown a medical report prepared by a Registered Chinese Medicine Practitioner working under the employ of Kwong Wah Hospital in Hong Kong, which declared that upon examining Fan on 18 August 2015, the medical finding was “腰活動功能正常” [English translation: “movement and function of the waist was normal”].  Fan disagreed with the medical finding and said “佢話正常，但係我痛，梗係我唔同意佢咁樣，佢個個全部都寫到冇事喇，個個報告都寫到好輕㗎，但係到今時今日都係殘廢” [English translation: “they said normal, but I was painful, I of course disagree, they all wrote that I was fine, all reports said my condition was minor, but even as of today I am still disabled”]. Fan’s evidence amounted to an allegation that all public doctors who wrote medical reports about Fan were somehow all wrong, and they all separately and independently failed to notice that she was a disabled person.  I disbelieve her.  In my judgment, the much more likely scenario would be that all doctors were correct, and Fan’s evidence that she was disabled even as of the day she gave evidence before me was utterly false and known to her to be false.  I also observed Fan’s body movements myself.  Fan was plainly not disabled on the day she gave evidence in Court.  She could and did walk towards the witness box normally, without any assistance.  I do not accept her evidence that she was still disabled on the day she gave evidence before me.  This is yet another reason why Fan is generally unreliable as a witness.

(9)   Fan was shown a medical report prepared by a Registered Chinese Medicine Practitioner working under the employ of HK Chiropractic & Bone Setting Centre in Hong Kong, which recorded that by September 2015, according to Fan, Fan considered herself to be 60% to 70% healed, and that she was able to and did perform household chores.  Once again, Fan’s evidence was that she never said any of those things.  In my judgment, there was simply no reason why the Registered Chinese Medicine Practitioner in question would lie about or fabricate these matters.  I do not accept Fan’s evidence.

(10)   Given the inherent improbability of the Alleged Accident, the general incredibility and general unreliability of Fan’s evidence, and the inconsistency between Fan’s evidence and the independent documents, I am completely unable to accept that the Alleged Accident had ever happened in the manner as pleaded.  The pain allegedly felt by Fan, if there was any, could have been caused by various reasons completely unrelated to the Alleged Accident, and did not by itself prove the existence of the Alleged Accident.  The substantially more likely scenario is the Alleged Accident never actually happened, which would explain why the contemporaneous record showed Fan attended work from 3June 2015 to 6June 2015 (both days inclusive) and had in fact been paid by Rs for all of those days.

11.  Mr Alex Lai, Counsel for Fan, tried his very best to persuade me, at closing submissions, that the Alleged Accident did happen.  With respect, I disagree with his submissions, for the following reasons: -

(1)   Mr Lai submitted, orally at closing submissions, that Fan could only tell us what she felt – she felt additional weight falling onto her at the time of the Alleged Accident – she could not have paid attention to the relative heights of the two ends of the Object and we could not expect her to be able to give evidence on such details.  Mr Lai thus urged me to accept Fan’s evidence on the Alleged Accident as true, in the absence of strong evidence that she lied.  I am wholly unable to accept this part of Mr Lai’s submissions because Fan did give evidence on the alleged motion and at no point did Fan say she did not pay attention or could not recall.  Once Fan had given evidence on the details, it became necessary for me to assess Fan’s credibility based on the evidence she gave.  As it were, Fan’s evidence on the details revealed the inherent improbability of her story.  In any case, there was in fact strong evidence that Fan lied, and that Fan was generally unreliable as a witness, the full details of which had been set out above.

(2)   Mr Lai also submitted, at paragraphs 7 to 10 of his written closing, that Fan had consistently told her treating doctors the exact same story, and there was no evidence that any of her treating doctors had ever doubted her story, which according to Mr Lai proved the story.  I am wholly unable to accept this part of Mr Lai’s submissions either because telling a lie a thousand times does not turn a lie into truth. Doctors do not check their patients’ stories as if they were police officers investigating a murder.  More importantly, just as there was no evidence that the treating doctors had doubts, there was also no evidence that they had no doubt, and the absence of evidence pointing either way is neither here nor there.

(3)   Finally, Mr Lai submitted that Fan had said she had spent RMB 34,892.93 of her own money for medical treatment in Mainland China and the fact that this amount of money had been spent was unchallenged in cross-examination.  I am prepared to accept, in the absence of a challenge, that Fan did spend that sum for medical treatment in Mainland China, but in my judgment that does not assist in proving the Alleged Accident, as Fan could have been injured in some way other than by reason of the Alleged Accident, and she could be treating pre-existing medical conditions.  The fact that she had spent money seeking treatment does not make it any more likely that the Alleged Accident had in fact occurred.

12.  Having most carefully considered and analyzed all evidence and submissions received by me, I come to the firm view that the Alleged Accident did not happen, that Rs are under no duty whatsoever to pay compensation to Fan pursuant to the Ordinance, and that as such this action must be dismissed.  What I say on quantum below is therefore obiter.

Issue 2 – Quantum

13.  If I were wrong on the issue of liability, I would have considered the issue of quantum as follows.

14.  My first task would be to deal with Fan’s “Section 18 Appeal” – i.e. her appeal against the assessment of 0.5% loss of earning capacity by the Employees’ Compensation (Ordinary Assessment) Board (“ECB”) pursuant to Section 18 of the Ordinance.

15.  The law on “Section 18 Appeal” is trite.  As Hunter JA had said in Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd [1991] 2 HKLR 455 at 458-C, where the ECB gave no reason for its assessment (as in our present case): -

“… a court can only judge an assessment by testing the validity of its conclusions against the total available evidence. It cannot speculate about the advice tendered by the labour officer… ”

16.  At the start of the trial I had on the parties’ joint application made an order admitting the contents of a joint medical report prepared by Dr KC Lam and Dr Johnson Lam dated 7 May 2018 (“the JMR”) as expert evidence without calling the makers.  So I would start by looking at the JMR.

17.  According to the JMR, Fan was jointly assessed by the 2 doctors on 2 March 2018.  The agreed findings were set out in its paragraphs 36 to 40.  I read those agreed findings and would accept all of them as true.  In gist, Fan could stand, walk, squat and sit normally. There was simply no evidence of any structural damage or neurological deficit. Fan’s conditions, as described in the JMR, appear to me to be extremely mild, if not wholly non-existent.  Dr KC Lam assessed Fan’s loss of earning capacity as 1% whilst Dr Johnson Lam assessed it as 2%.  If I have to assess quantum I would allow Fan’s Section 18 Appeal, but only to the extent of substituting a loss of earning capacity of 0.5% with one of 1% and using 1% as the basis of all relevant calculations.

18.  My next task would be to deal with Fan’s “Extension Application” – i.e. her application to extend her entitlement for periodical payment beyond the 24 months period, pursuant to Section 10(5) of the Ordinance.

19.  I say at once I find no merits in Fan’s “Extension Application”. I would deal with this together with Section 10(2) of the Ordinance.

20.  Section 10 of the Ordinance deals with compensation in case of temporary incapacity.  Section 10(2) of the Ordinance reads as follows: -

“For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

21.  The usage of the word “deemed” in the said provision had given rise to inconsistent first instance decisions as to whether the provision tied the hands of this Court so that this Court could never reopen a certification in the absence of fraud.  That historical confusion is now gone, thanks to the Court of Appeal’s clarification in Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120, where Lam VP said this (at 1130, para 28): -

“In a nutshell, the correct legal position is this: s.10(2) set out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim. The burden is on an employer to rebut that presumption”

22.  In the same case, Lam VP went on to emphasize the importance of a judge asking “the correct questions”, considering all relevant evidence, and trying to seek “a comprehensive picture” of an employee’s true condition.  On the facts of that particular case, the respondent “had not put forward any evidence to rebut the statutory presumption” and that was considered fatal to the respondent’s position.  To put that in context, the respondent in that case had not even attempted to seek medical examination of the applicant by the respondent’s own expert.

23.  Coming back to our present case, as I had mentioned above, Fan was medically examined by Rs’ expert and the JMR (which recorded the view of Rs’ expert) had been admitted as expert evidence by consent.  I should thus look at the JMR to see whether the evidence there (when considered with other evidence) would be sufficient to rebut the statutory presumption.  I am aware the burden of rebuttal is squarely on Rs.

24.  Paragraphs 12 to 33 of the JMR helpfully summarized the history of Fan’s application for sick leave certificates, starting from 4 June 2015.  The medical conditions as found by the treating doctors had also been summarized in those paragraphs.  As early as on 30 June 2015, Fan was recorded by PWH to have “managed to walk independently”.  Fan was X-rayed by PWH and it “showed no abnormality”.  She was simply given painkillers and 3 days’ sick leave. Bluntly put, if one reads the PWH medical report too, it is crystal clear by 30 June 2015 there was almost nothing wrong if not literally nothing wrong with Fan’s health condition, except perhaps her own subjective complaint of some pain. It is also astonishing, when one goes through the history of Fan’s application for sick leave certificates, just how many different doctors Fan had visited. At paragraph 33 of the JMR, the experts recorded Fan had told them she had been granted sick leave certificates “from various general clinics and CMP” where only sick leave certificates but no medicationhad been given to Fan.

25.  More importantly, at paragraphs 84 & 85 of the JMR, Rs’ expert Dr KC Lam did give his expert opinion on Fan’s various sick leave certificates, as follows: -

“… The sick leaves were unduly prolonged and unnecessary… Judging from the injury nature (an uncomplicated sprain), the reported progress and work requirement, a sick leave up to 3 months should be adequate for Md. Fan to resume work… The history showed that Md. Fan had shopped around for sick leaves. These sick leaves should not be endorsed. Such sick leaves… do not have therapeutic value.”

26.  At paragraph 86 of the JMR, Fan’s expert Dr Johnson Lam also gave his expert opinion on Fan’s various sick leave certificates, as follows: -

“… considering the severity of injury, need for rehabilitation, the progress with treatment, and the pre-accident job demand, the duration of sick leave issued by Madam Fan’s treating specialists / doctors who assessed him (sic) from time to time is appropriate and should be endorsed.”

27.  Having carefully considered the totality of all evidence including all contents of the JMR and all medical reports prepared by treating doctors, I come to the firm judgment that the expert opinion of Dr KC Lam (as set out above) should be preferred and I accept the same as the correct view.  Fan was able and medically fit to resume work after no more than 3 months from the Material Date.  Fan was wrongfully given sick leave certificates which had no therapeutic value whatsoever.

28.  The “comprehensive picture” painted by all evidence before me showed that the statutory presumption has been rebutted.  Even if Fan suffered an injury from work and the Alleged Accident occurred, Fan’s period of total temporary incapacity would be no more than 3 months.

29.  Given my finding of fact above, Fan’s application to extend her entitlement for periodical payment would of course have to be dismissed too – Fan should at most be entitled to 3 months of periodical payment.

30.  The parties had agreed that if liability could be established, Fan’s monthly earning for the purposes of calculations under the Ordinance should be HKD 16,525.  If I were wrong on liability, I would adopt this agreed figure as the correct figure and proceed to perform the calculations in the following manner.

Section 9 of the Ordinance – Permanent Partial Incapacity

31.  Given that Fan was 44 on the Material Date, Section 7(1)(b) of the Ordinance would apply and “a lump sum equal to 72 months’ earnings” would be payable if liability could be established.  The amount would be HKD 16,525 x 72 x 1% = HKD 11,898.

Section 10 of the Ordinance – Temporary Incapacity

32.  As set out above, Fan was able and medically fit to resume work after no more than 3 months from the Material Date.  So even if liability could be established, only HKD 16,525 x 3 = HKD 49,575 would be payable under Section 10 of the Ordinance.

Section 10A of the Ordinance – Medical Expenses

33.  For medical expenses, the consideration would be different from that of sick leave certificates.  It is clear from the wording of Sections 10A(1) & 10A(3) of the Ordinance that an employee can be entitled to reimbursement for treatment expenses even if she was fit to resume work.  One can envisage situations where an employee can resume work but must nonetheless continue with her treatments after working hours, or when she did not have to work.  In my judgment, those expenses would still be recoverable.  The test should be whether “no further treatment is required” after a specific date, and I would be determining that by looking at all the medical evidence available, including, specifically, the JMR.

34.  Rs’ expert Dr KC Lam had stated his opinion on Fan’s recovery progress at paragraph 73 of the JMR.  His view was that by 25 February 2016 at the latest, Fan must have fully recovered, since it was recorded she had “no local tenderness” on that day, and from a clinical perspective a patient would not normally say she had no pain if the truth was otherwise.  I accept that view as logical and correct and find that by 25 February 2016 at the latest Fan must have fully recovered, even if she had previously been injured.

35.  On that basis, if Fan had been able to establish liability, I would have allowed Fan’s medical expenses claim up to and including 25 February 2016 and disallowed the rest of the claim.  I would have adopted the figures and calculations set out in Appendix A to the written closing lodged on behalf of Rs, and concluded that only HKD 14,877 would be payable to Fan, bearing in mind the maximum daily quantum for an out-patient would be limited to HKD 200 per day as per the Third Schedule to the Ordinance.

Interests

36.  Interests would have been uncontroversial.  Had I ordered Rs to pay any compensation to Fan (I had not), I would also have ordered interests in Fan’s favour at half-judgment rate from the Material Date to the date hereof, and at judgment rate hereinafter until full payment.

37.  The above was, of course, obiter, given that I ruled against Fan on liability, and the issue of quantum did not in fact arise.  I had only set out my views on quantum for the sake of completeness.

Costs

38.  Costs should follow the event. Fan is the losing party and Rs are the winning party.  I order Fan to pay all costs of these proceedings, including all costs previously reserved, to Rs, to be taxed if not agreed.  Fan’s own costs should of course be taxed pursuant to the Legal Aid Regulations.

39.  Both sides instructed Counsel and in my view the engagement of Counsel was most reasonable, necessary and proper, especially since a skillful cross-examination of Fan was required.  I certify the engagement of Counsel.

Disposition

40.  By reason of the above, I hereby make the following orders: -

(1)   The Amended Application be dismissed;

(2)   There be an order nisi that Fan shall pay all costs of these proceedings including all costs previously reserved to Rs, to be taxed if not agreed, with Certificate for Counsel;

(3)   Unless a party takes out a costs variation summons within 14 days from today, the said order nisi shall automatically become absolute without further order; and

(4)   Fan’s own costs are to be taxed in accordance with Legal Aid Regulations.

Final Remarks

41.  I do thank both Counsel for their most able assistance.