LI HON MING v. KWONG SHUN HOUSING ENGINEERING CO LTD AND OTHERS

DCEC 1905/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1905 OF 2013

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JUDGMENT

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INTRODUCTION

1.  This is the trial of an employees’ compensation application.  Mr Li Hon Ming, the applicant, claims that on 5 February 2013, whilst in the employment of the 1^st respondent, he sprained his right elbow when he and a co-worker were manually moving a pipe at a construction site at Caritas Medical Centre in Cheung Sha Wan, Kowloon (“the Site”).

2.  It is not in dispute that the applicant was at that time the 1^st respondent’s employee.

3.  It is also not in dispute that the 2^nd and 3^rd respondents were each a “principal contractor” of the 1^st respondent for employees’ compensation purposes.

4.  What is hotly contested is whether the accident alleged by the applicant in fact took place or not.  Quantum is also in dispute.

5.  Although the 2^nd and 3^rd respondents filed a notice of indemnity against the 1^st respondent in March 2016, it was confirmed at trial that the notice would not be pursued.  The three respondents maintain the same stance in this action and were represented by Mr Wong Chi Kwong, counsel. 

6.  This is essentially a dispute on facts.  The applicant himself testified at the trial.  He called no other factual witness.  He gave evidence on how the alleged accident happened, how he informed various individuals who worked for the 1^st respondent of his injury and sought to claim from the 1^st respondent his sick leave pay and medical expenses.

7.  The respondents called four factual witnesses, each of whom sought to dispute a different aspect of the applicant’s case.  They are:-

(1)  Mr Ma Chi Woon – whom the applicant claims was his co-worker at the time of the alleged accident.  Ma flatly denied this.

(2)  Mr Fong Ngai – whom the applicant claims was his supervisor at the Site. The applicant says he told Fong about his accident immediately and a few times afterwards.  Fong denied ever being told of any work accident.

(3)  Mr So Kwong Ming, a director of the 1^st respondent.  The applicant claims that So requested a few times that he return to work when he was on sick leave.  So denied this.

(4)  Mr To Ka Wai, who was in charge of the administration affairs of the 1^st respondent.  To gave evidence on how he had handled the applicant’s medical claims in March 2013 and testified to a loan given to the applicant by the 1^st respondent in mid-April 2013.  The evidence of the applicant and that of To in these regards are diametrically opposite.

8.  Medical evidence was also adduced at trial.  Pursuant to leave of the court, the applicant was jointly examined by Dr Andrew Miu and Dr James Kong, specialists in orthopaedics and traumatology appointed by the applicant and the respondents respectively, on 11 June 2015 and a joint medical report was made on 20 July 2015 (“the Report”).  In the Report, the doctors agreed on the diagnosis of the applicant’s injury, namely, right tennis elbow.  However, they disagreed on the following issues:-

(1)  The cause of the injury;

(2)  The extent of the injury and its impact on the applicant’s earning capacity; and

(3)  Reasonableness of the sick leave days.

9.  On the first day of the trial, I allowed a late application made by the respondents to call the doctors to give oral evidence.  I did so in view of the divergent and irreconcilable opinions given by them on major issues affecting both liability and quantum.  It seemed to me that in order to come to an informed view as to whose expert opinion (or which part of it) I should accept or reject, each party should be given an opportunity to cross-examine the other side’s expert in order to test or challenge the latter’s conflicting opinions as expressed in the Report.

10.  It would be obvious from the above outline of the evidence that as far as the liability issue is concerned, its resolution turns on which party’s factual account, and to what extent, the court accepts (or does not accept) and, further, the court’s evaluation of the medical opinions on causation.

11.  On the factual dispute, leaving the medical evidence aside, it is effectively the applicant’s testimony alone against the story pieced together by the opposite testimony of the four witnesses called by the respondents.  The court would have to decide on the credibility of the witnesses and the reliability of their evidence against the undisputed or indisputable background. 

12.  As far as quantum is concerned, this is dependent on the court’s assessment of the medical evidence and its view on the applicant’s evidence, in each case, on the extent and seriousness of his injury.

THE APPLICANT’S CASE

13.  The applicant’s case is as follows.

14.  It is common ground that the applicant had been in the employment of the 1^st respondent for about two years before the alleged accident. Prior to working at the Site, he had been assigned to work at two other construction sites by the 1^st respondent.  Since about September 2012, he worked at the Site as a technician, responsible for installing air-conditioners and pipes. 

15.  His monthly income was based on a daily wage, which was $750 as of the date of the accident.  The applicant’s case is that whilst in employment with the 1^st respondent, he seldom took leave and on average worked for 26 days a month.  Very often, he would work overtime when required.  This seems to be consistent with the List of Earnings filed by the 1^st respondent in these proceedings, which shows that the applicant earned a monthly income within the range of about $21,000 to about $26,000 in each of the 12 months preceding the day of the alleged accident. 

The accident and the applicant’s report to the 1^st respondent

16.  At the Site, the workers were usually assigned to work in pairs.  On 5 February 2013, the applicant’s work partner was Ma.  In the afternoon, they were moving a pipe which weighed about 300 pounds.  The applicant was pushing from one end of the pipe and Ma pulling from the other.  Whilst doing so, the applicant sprained his right elbow.  He felt immediate pain.

17.  He stopped moving the pipe and indicated to Ma that he had hurt himself.  Ma did not make any reply.  The applicant went to one side to take a rest.  Later that day, the applicant told Fong about his accident.  The applicant referred to Fong as the “supervisor” at the Site.  At that point, Fong did not say anything.  Even though he was still in pain, the applicant thought at that time that the injury was not serious and he carried on with the work for the day.  When he returned home, he applied ointment to the affected area to ease the pain.

18.  Notwithstanding the ongoing pain, the applicant returned to work on the following two days, ie, 6 and 7 February, as he did not want to get into any trouble.  The applicant spoke to Fong again about his injury.  Fong responded by mentioning, rather strangely, that he had earlier had an injury himself from which he had not yet recovered. 

19.  A week-long Chinese New Year holiday then followed.  The applicant resumed work at the Site on 15 February.  However, due to the pain in his arm, he took leave again for two days. 

20.  As he relied on this job to make a living, he went back to work from 18 to 21 February.  As he experienced more severe pain as he carried on working, he realised that his injury was in fact serious.  After he finished work on 21 February, he informed Fong again of his injury and indicated to him that he would need to take sick leave for a few days.

21.  On the following day, he attended a bonesetter for treatment.  He sought bonesetting treatment again on 25 February.  Sick leave certificates were given to him.  Then, on 26 February, he received a telephone call from an employee of the 1^st respondent, asking him to call So.  When he returned call, So requested that he return to work the following day.  Due to financial pressure, the applicant went back to work on 27 February. 

22.  On that day, he tried to submit the sick leave certificates issued by the bonesetter to Fong.  But Fong refused to accept them.  Instead he asked the applicant to hand them to So directly.  Fong however did assign some lighter works to the applicant.  Notwithstanding that, the applicant still found the pain to be intolerable and at about 4 pm on that day, he informed Fong that he needed to leave early to get treatment.

23.  The applicant took leave from 28 February to 9 March and attended two bonesetters for treatments during this period.  Sick leave certificates were given to him.

24.  On about 3 and 4 March, So called the applicant asking him when he could resume work.  The applicant replied on both occasions that he had not yet recovered from his injury.  On 9 March, at So’s request, the applicant met with him and To, whom the applicant described as the other boss of the 1^st respondent, at a restaurant near the Site.  At that meeting, after referring to his arm injury, So asked if the applicant could go back to work on the following day and he promised that the 1^st respondent would report the accident to the Labour Department.  The applicant replied that he would like to take one more day’s rest and would return to work on 11 March.

25.  He did and was assigned light duties at the Site by the 1^st respondent, eg, installing smaller pipes.  However, due to the continuous pain, he had to take leave (with no pay) from time to time and ended up working for only about ten days in March and only six days in the following month up to 15 April. 

26.  After he resumed work on 11 March, he developed allergic reaction to the medication and therefore he did not continue with the treatment with the bonesetters during that time.

27.  On about 14 or 15 March, the applicant came across So at the Site and asked him when he would report his accident.  To was also at the Site.  So therefore asked To to take the applicant to the office at the Site.  However, just when To and the applicant almost reached the staircase leading to the office, To suddenly stopped the applicant and said to him that if he now reported the accident to the safety officer of the Site, he would be told off. In order to avoid trouble, the applicant took To’s advice and did not proceed to make the report to the safety officer.  

The applicant ceased to work for the 1^st respondent in mid-April 2013

28.  The next significant event took place on 15 April.  After the applicant finished the day’s work, To asked him to take leave and rest until his arm fully recovered.  He also promised the applicant that he would assign new works to him when the 1^st respondent commenced the next project.

29.  While he was on leave, the applicant called To to see when the 1^st respondent would pay him his wages, including overtime payments, for the month of April as well as his sick leave payments. 

30.  He made an appointment to meet To at a petrol station near his home.  At that meeting which took place in To’s car, To handed two cheques to the applicant in the sums of $5,652.50 and $11,028. 

31.  The applicant’s case is that the first sum broadly represented 7½ days of accrued wages for the month of April.  He was on a daily wage of $750.  He worked for six days in April.  On three of those six days, he worked overtime. For each day on which he worked overtime, he was entitled to an additional half day wage.   Hence 7½ days in total.  The second sum roughly comprised (1) 13 days of sick leave payment and (2) the medical expenses he incurred during the period from 22 February to 9 March.

32.  To then asked the applicant to sign his name on a “blank” piece of paper to acknowledge receipt of the two cheques.  Given that the applicant wished to maintain a good relationship with the 1^st respondent and he had trust in the latter at that time, he went ahead to sign, without thinking too much.

33.  To the dismay of the applicant, the 1^st respondent never came back to him for new works.  Because of his financial needs, he started to work at another site in mid-May 2013, notwithstanding the persistent pain from his injury.  The works involved installation of small air-conditioner pipes.

34.  Since the 1^st respondent did not assign new works to the applicant, on 13 May 2013, he lodged a complaint with the Labour Department against the 1^st respondent for unlawful dismissal.

35.  Later in June, the applicant found out from other workers that the 1^st respondent had in fact started to work on a new project at the Hong Kong Science Park.  He immediately called To and asked why he was not asked to work on the new site.  To simply replied that there was no suitable job for him.

36.  On 9 July 2013, the applicant attended a Labour mediation session with So and To.  They denied for the first time that the accident ever occurred. They further asserted that the sum of $11,028 previously given to the applicant was a loan. 

Continuing medical treatment

37.  In the meantime, the applicant continued to receive treatment from bonesetters from time to time from 30 April 2013 until about April 2014.  He was granted sick leave intermittently. 

38.  As he still felt persistent right elbow pain, he attended the Accident and Emergency Department at the Prince of Wales Hospital in July 2013.  He was referred to the Department of Orthopaedics & Traumatology (“the DOT”).  The appointment took place on 17 September 2013.  The diagnosis was right tennis elbow.  The treating doctor remarked that it “could [have been] initiated by strains over the common extensors in the presence of the pre-existing degeneration”.  Thereafter, he attended a number of follow-up appointments at the DOT and physiotherapy treatment sessions at the hospital, the last of which were on 10 November 2015 and 21 January 2015, respectively.  With respect to his treatment at the Prince of Wales Hospital, he was granted sick leave for the periods from 17 September 2013 to 26 March 2014 and from 24 June to 13 August 2014.

39.  In total, he was granted sick leave in respect of his right elbow injury for a total of 304 days since 22 February 2013.

The applicant was injured in his new job in May 2013

40.  It needs also be mentioned that while he worked for the new employer, the applicant injured his left little finger in a work accident on 23 May 2013.  He received surgical treatment in June 2013 and underwent physiotherapy treatment afterwards.  This accident has no connection with the alleged accident which took place in February of the same year, save that it has a bearing on the issue of quantum.   The relevance lies in the fact that the applicant was also granted extensive periods of sick leave in respect of the finger injury, which overlap to some extent with the sick leave granted for his elbow injury.

41.  At closing, Ms Josephine Tjia, counsel for the applicant, submitted a schedule of medical treatments received by the applicant showing, amongst other things, the sick leave days granted in respect of his elbow injury and highlighting those overlapping days.  Ms Tjia confirmed that the applicant would not be seeking any compensation in this action in respect of the overlapping days and leaving those out, he now claims a total of 171 days of sick leave in respect of his elbow injury. 

42.  As to the impact of his injury, the applicant said in examination-in-chief that his working ability has been much impaired. Pre-injury, he was able to move his arms freely, without any constraint. Post-injury, he even has difficulty in handling objects weighing 20 to 30 pounds.  He still experiences pain from time to time.

Medical opinions

43.  The applicant underwent an assessment and a re-assessment by the Employees’ Compensation (Ordinary Assessment) Board in March and August 2014 respectively. In both assessments, he was certified to have suffered from “right elbow injury resulting in right elbow pain” and his loss of earning capacity was assessed at 1% and the necessary period of absence from duty a total of 233 days.  On 17 October 2014, the applicant lodged an appeal from the re-assessment in these proceedings.

44.  In the Report, Dr Miu, after reviewing the medical records of the treating doctors and conducting an examination of the applicant together with Dr Kong, was of the following opinions:-

(1)  The applicant’s injury was “the direct result of the subject accident”. I quote below the main part of his reasoning:-

“Mr. Li was injured on 5^th February 2013 & he tried his best to work for two more days as the Lunar New Year was on 10^th February 2013. His right elbow pain improved with this period of rest and exemption from works. This is a common finding in patient with epicondylitis as the pain was mainly and significantly triggered by exertion and it improved with rest. He returned to work on 15^th February 2013 but the right elbow pain deteriorated again after exertion. …” (paragraph 51 of the Report) (emphasis added)

(2)  The treatment received by the applicant was “up to standard & appropriate for his clinical condition”.

(3)  Dr Miu endorsed the sick leave given by the treating doctors “[i]n view of the severity of the injury and the strenuous work nature of his pre-injury duty”.

(4)  Dr Miu assessed the applicant’s loss of earning capacity at 5% as he “would have great difficulty to return to his pre-injury duty” and “would not be able to do strenuous work and not be able to work for prolonged period of time”.

THE RESPONDENTS’ CASE

45.  It is not in dispute that the 1^st respondent had not put in place any employees’ compensation insurance for its workers.  Instead it was relying on the 3^rd respondent’s insurance policy for the necessary coverage for the workers at the Site.  (The 1^st respondent was a sub-contractor of the 2^nd respondent who in turn was a sub-contractor of the 3^rd respondent.)

46.  The 1^st respondent’s account of events is in stark contrast with the applicant’s version.

47.  It is the respondents’ case that on the day of the alleged accident, the applicant did not work with Ma as a team.  Ma gave evidence that around that time, ie, February 2013, his partner was a worker called Yip.  While he did work with the applicant as partners on the Site, he remembered clearly that it was only for the period from mid to late March 2013.

48.  As to Fong’s role or position with the 1^st respondent, which was canvassed at some length during the cross-examination of the witnesses, the respondents’ position, as confirmed in closing, is that at the time of the alleged accident, Fong did not hold any formal position as “supervisor” or “foreman”. So was the primary person who instructed and supervised the workers at the Site. 

49.  However, the evidence of Fong and So shows that:-

(1)  Fong was addressed by some of the workers at the Site, including the applicant, as the “supervisor”.

(2)  So looked to Fong to keep an eye on the workers, particularly when So was not around.  Fong would report to So if anything special happened.

(3)  Fong agreed that if a worker was injured at work, the worker would report to him.

(4)  Fong was paid a slightly higher daily wage than other workers, ie, about $800 to $900.

50.  Fong denied that the applicant spoke to him about the accident on 5 or 6 February 2013, as the applicant alleged.  In his written witness statement, he stated generally that the applicant did not tell him about the accident afterwards either.  In cross-examination, however, he confirmed that the applicant did at a later stage try to pass him some sick leave certificates.  He was not sure when that happened but it was over a telephone conversation when the applicant was not at the Site.  It should be some time before 27 February 2013.  Fong refused to take the certificates and told the applicant to submit them to So directly.  Fong also said in cross-examination that he did not recall assigning lighter duties to the applicant after he returned from his sick leave.

51.  In his evidence, Fong accepted that if a worker wished to take leave, he should apply to So in advance.

52.  Separately, So denied that the telephone conversations alleged by the applicant, ie, on 26 February and 3 and 4 March had ever happened.  He and To also denied that they had met with the applicant at all on 9 March.   It was only when the applicant resumed work on 11 March that So and To learnt for the first time of the alleged accident and the injury.  The respondents’ case is that before 11 March, the applicant had told no one who worked for the 1^st respondent of the accident. 

53.  In fact, apart from his intermittent absence from work from February onwards, when he was working, there was nothing abnormal or unusual about the applicant and, on quite a few occasions, he even worked overtime.  Given the absence of any notification or complaint concerning the accident and that the applicant’s wages were based on the number of days he actually worked, the 1^st respondent did not follow up on why the applicant took leave from work every now and then.

54.  It is further the respondents’ case that on 11 March, when the applicant handed the sick leave certificates to So, So instructed To to accompany the applicant to see the responsible officer of the 2^nd respondent, whose office was at the Site.  The applicant was to inform the 2^nd respondent of the accident and his injury in order to claim the sick leave pay and medical expenses.   However, on their way to the 2^nd respondent’s office, according to To, the applicant all of a sudden refused to go to see the 2^nd respondent without saying way.

55.  Later on the same day, So met the applicant again.  They had a conversation at a cafeteria and So asked the applicant whether he had gone to make a report to the 2^nd respondent.  The applicant replied no.  So got upset and demanded to know why he did not go.  The applicant simply remained silent.  Subsequently he returned to work.

56.  Then on 15 April, the applicant approached To asking for advance payment of the April wages and also a loan covering the wages for the rest of the month. To agreed and So signed two cheques.  The amounts of those cheques are not in dispute.  It also seems common ground that the first cheque in the sum of $5,652 represented the wages earned by the applicant for the first half of the month.  However, the parties disagree on what the second cheque covered.  The respondents’ case is that the sum of $11,028 was a loan given to the applicant representing the wages for the second half of the month and the payment of the medical expenses incurred earlier by the applicant.   The 1^st respondent paid the latter expenses purely on compassionate grounds.

57.  Since the applicant failed to turn up for work on 16 April, To brought along the two cheques to a petrol station near the applicant’s home on the following day and handed them over to him.  The applicant signed an acknowledgment of receipt dated 17 April 2013 (“the Acknowledgment”). 

58.  The Acknowledgment was a one-page handwritten document.  At the top half of the page, a statement was written to the effect that the applicant confirmed receipt of his April wages in full and that he also received the advance payment of 15 days’ wages and medical expenses.  To confirmed that the statement was written by him.  In the middle of the page was the applicant’s signature, followed by the date.  The applicant confirmed at trial that that was his signature. 

59.  At the bottom half of the page were scribbled some figures apparently relating to some other sites.  The scribbles are not relevant to the Site.  To explained that when he handed over the cheques to the applicant, he did not have at hand an acknowledgment.  He simply grabbed an A4 size paper for the applicant to sign to acknowledge receipt of the cheques.  But To insisted in cross-examination that when the applicant put his signature on the paper, the statement in the top half had already been written. 

60.  On the contrary, the applicant’s case is that that when he signed, the statement now above his signature had not yet been written.  He was signing on a “blank” piece of paper.  At trial, he clarified that while he used the word “blank” in his written witness statement, that was not accurate because the scribbles at the bottom were already there (but were irrelevant).

61.  In summary, the respondents’ case is that:-

(1)  The applicant had not informed the 1^st respondent, whether it was Ma, Fong, So or To, of his accident until 11 March 2013.

(2)  When To accompanied the applicant to submit the sick leave certificates to the 2^nd respondent on that day, the applicant himself chose not to proceed.

(3)  In mid-April 2013, it was the applicant who approached To for an advance payment of the April wages.  The sum of $11,028 was mainly a loan extended by the 1^st respondent, instead of sick leave pay.

62.  Further, the respondents argue that since all the workers at the Site, including the applicant, were covered by the insurance policy taken out by the 3^rd respondent, there was really no reason why the 1^st respondent would not process the medical claims submitted by the applicant.    In the end, it was the applicant who decided not to proceed to make a report to the 2^nd respondent.  The respondents therefore invite the court to find that the alleged accident did not take place, as alleged by the applicant.

Medical evidence

63.  As mentioned above, the respondents’ expert, Dr Kong, challenges the applicant’s case on causation, loss of earning capacity and sick leave.

64.  On causation, in the Report, Dr Kong opined that “it is unlikely that the alleged accident occurred on [5 February 2013]”.  He gave a number of reasons in support.  The major ones are as follows:-

(1)  First, on the day of the alleged accident, the applicant managed to work until the end of the day without requiring any medical treatment.  This suggests that the pain, if suffered, should not have been too severe.

(2)  Secondly, the applicant only sought treatment for the first time on 22 February.  In other words, he had delayed treatment for 17 days after he allegedly sprained his elbow.  This raises “serious doubt whether any genuine or significant injury did occur on [5 February]”.

(3)  Thirdly, according to the records of the bonesetter who attended to the applicant on 22 February, bruise was observed.  Dr Kong’s view is that the existence of bruise is inconsistent with the alleged sprain injury.  In cross-examination, he went further and said that in cases of tennis elbow, bruise as a symptom is almost “unheard of”.

65.  In the Report, Dr Kong expressed the view that the records of the treating doctors would suggest that the elbow injury was caused by exertion when the applicant resumed work after the Chinese New Year break.

66.  On the seriousness of the injury, Dr Kong said in the Report that physical examination of the applicant showed only “mild tenderness at lateral epicondyle”.  Further, given that he was able to return to his previous occupation as an air-conditioner technician “without any residual orthopaedic impairment”, he would estimate that the applicant is suffering from 0.5% loss of earning capacity and a reasonable period of sick leave should be up to four weeks.

67.  I should also mention that in his oral evidence, Dr Kong raised for the first time his suspicion that the applicant was using sub-maximal effort when he underwent the JAMAR test at the joint examination.  As I understand from the doctors’ explanation, the JAMAR test measures the hand gripping power of a patient.  The patient would be asked to hold a spring-installed instrument in his palm and grab it as hard as he can.  The size of the instrument would be adjusted to five positions and five scores would be recorded accordingly.  Broadly speaking, the higher the scores, the more forceful is the grab.

68.  The respondents’ case is that the applicant underwent the JAMAR test on two occasions when he was receiving physiotherapy treatment in late 2013.  The JAMAR scores recorded for his right-hand grip then were much higher than the scores recorded at his physical examination in June 2015.  Given the large difference, Dr Kong said in examination-in-chief that there was a high chance that the applicant was not making his best efforts when performing the JAMAR test during the joint examination.  In other words, he was trying to exaggerate his injury and how it affected his gripping power.

69.  It must be mentioned at this juncture that there is no mention at all of such suspicion in the Report.  Dr Kong explained in his oral evidence that it was because he did not discuss it with Dr Miu then. 

ANALYSIS

70.  In evaluating the parties’ respective cases, I take into account the following matters.

The applicant’s case is reasonably plausible and generally consistent

71.  First, when the applicant’s case is looked at on its own, it is reasonably plausible, coherent and generally consistent.

72.  His account of events as to how he hurt himself and the steps he took to inform his employer is straightforward.  His explanation as to why he did not seek medical treatment straightaway is plausible.  He pointed to his belief at that time that the injury was not serious and he could take care of it by applying ointment to the affected area.  He also explained that he was trying to put up with the pain and continue to work since he relied on the job to earn a living.  This is, again, reasonably plausible.  He was on a daily wage.  In other words, he only earned as he worked.  Like other day workers or manual labourers, he would have the incentive to work notwithstanding the pain in his elbow.

The discrepancies in the applicant’s evidence do not impinge on his credibility

73.  Secondly, the applicant was subject to extensive cross-examination at the trial.  Yet he gave evidence in a straightforward and firm manner.  In the process, it was pointed out to him that there are a number of discrepancies in his evidence.  In those cases, he seemed ready and prepared to admit that he made mistakes in his written witness statements.  His attitude appeared frank and forthcoming.  In his closing submissions, Mr Wong relied on these discrepancies to attack the applicant’s credibility.  However, it seems to me that these discrepancies are more likely to be innocent mistakes than deliberate lies and they do not impinge on his credibility.  In my view, the mistakes were made because the applicant was not able to recall and recount the minute details of what happened back in 2013.

74.  As an illustration, in his first witness statement, the applicant produced a photograph showing the location of the pipe.  He seemed to suggest there that the photograph was taken at the Site.  But the photograph was in fact taken of another site.  He admitted to be so in cross-examination.  In my view, this seems to be a mere mistake made when the witness statement was prepared.  There was nothing to be gained by the applicant from lying about the location of the pipe or the photograph.  It is indisputable that in his job, he dealt with pipes.  The location of the pipe is immaterial to the issues in dispute. 

75.  As a further illustration, in his first witness statement, he said that on 27 February 2013, he gave his sick leave certificates to Fong but Fong refused to take them.  In cross-examination, he confirmed that he only mentioned the sick leave certificates to Fong without actually handing them over since they were in his backpack.  Again, the discrepancy seems to me to be minor in nature and does not impact on the applicant’s credibility.  It seems more likely to be the case that the applicant recalled wrongly the small details of a conversation which took place some time ago.

76.  Further, Mr Wong challenged the applicant’s written evidence that when he signed the Acknowledgment, it was a “blank” piece of paper.  This is factually inaccurate because (as he accepted in cross-examination) when he signed, the scribbles in the bottom half of the Acknowledgment were already there.  But it should be borne in mind that the dispute revolving around the Acknowledgment is when To wrote the statement in the top half – whether it was before (as To claimed) or after (as the applicant alleged) the applicant signed.  In this regard, the scribbles, which are totally unrelated to the Site or the cheques, bear no relevance to the dispute.  It seems to me that it was a genuine mistake made by the applicant when he referred to the paper as “blank” in his witness statement.

77.  Similarly, I accept that the applicant made a mistake when he said in the Labour proceedings that his co-worker at the time of the accident was someone named “Ah Hei”.  I consider that the explanation he set out in his supplemental witness statement for such a mistake makes sense and is plausible.

Dr Miu’s evidence on causation is to be preferred

78.  Thirdly, I do not consider that the challenges mounted against the applicant’s case by Dr Kong have much force.   

79.  Dr Kong placed much emphasis on the fact that the applicant did not seek medical treatment until 17 days later.  Mr Wong stressed that in fact on some days, the applicant even worked overtime.  Dr Kong also opined that the symptom of bruise as recorded by the bonesetter is not consistent with tennis elbow. 

80.  However, the delay needs to be looked at against two matters which are common ground:-

(1)  First, Dr Kong shared Dr Miu’s opinion that the pain experienced by a patient with tennis elbow would get worse with exertion and lessen with rest. 

(2)  Secondly, the applicant did have a chance to rest during the one-week long Chinese New Year break.  And it was only upon his returning to work after the break and having worked for four days in a row from 18 to 21 February that he eventually felt the need to seek help from a bonesetter on 22 February.

81.  It seems reasonably plausible that even though the applicant did suffer from an injury on 5 February, his condition improved over the holiday break but worsened after his resumption of duty.  Hence the delay in seeking medical treatment.  This is in fact the opinion expressed by Dr Miu in the Report, which I accept.  It seems to me that Dr Kong overlooked or did not have adequate regard to the relevance or significance of the intervening holiday break and its impact on the applicant’s symptoms.

82.  As to whether bruises can exist as a symptom of tennis elbow, again, I would prefer Dr Miu’s view to Dr Kong’s.  When one sprains one’s elbow, it may cause bruises if some muscle or ligament is torn.  At the same time, a sprain may trigger tennis elbow.  It is therefore possible that for someone who suffers from tennis elbow to exhibit bruises as a symptom, although the two do not always go hand in hand.  Dr Kong was not able to explain why he could definitively rule out bruises as a symptom in cross-examination.

83.  Further, it is the respondents’ case that the applicant was in effect cheating when he underwent the JAMAR test during the joint examination because he was using sub-maximal efforts.  I have serious doubt about this claim.

(1)  To start with, the attack in this regard seems very much a half-hearted attempt on the part of the respondents.  There was no mention of any suspicion of cheating in the Report itself.  It was only during the respondents’ opening submissions that Mr Wong raised the issue for the first time.  While the point was covered in Dr Kong’s oral evidence, Mr Wong did not address it in his written closing submissions at all.  Neither did he make any detailed submissions orally save to assert the respondents’ position that this point was still being pursued.

(2)  There was no reasonable explanation put forward by Dr Kong as to why he did not mention his suspicion in the Report.  He simply said that Dr Miu and he did not discuss this point then.  If Dr Kong genuinely considered that there was ground for suspecting the applicant of deliberately underperforming at the joint examination, it was his duty to raise it and discuss it with Dr Miu there and then and, where appropriate, follow up on this with further test.  The omission in the Report would seem to suggest that there was no genuine suspicion when the Report was compiled.

(3)  As such, it is now unclear on what basis the final opinions expressed by Dr Kong in the Report as to the extent of the applicant’s injury were made.  Did he come to the view that there is a 0.5% loss of earning capacity on the basis that the applicant had deliberately underperformed at the JAMAR test?  Or it did not matter?  During cross-examination, Dr Kong seemed to suggest that the JAMAR test was not relevant to determining the seriousness of tennis elbow injury.  But this does not sit well with the fact that the test was performed at the joint examination as well as at the earlier physiotherapy sessions at the Prince of Wales Hospital.

(4)  Dr Miu confirmed in his oral evidence that it is not at all unusual that a patient with tennis elbow would give fluctuating results at JAMAR tests conducted at different times, as the results very much depend on the physical condition and strength of the patient at the time.  In his view, the difference in the applicant’s JAMAR scores was nothing out of the ordinary.  Further, given that the JAMAR scores show a bell-shaped reading over the five positions, this would point to the applicant making a genuine effort when doing the test. Typically, if a patient is using sub-maximal effort, the JAMAR scores would be more or less flat across the five positions.

84.  For the above reasons, I accept Dr Miu’s oral evidence that there is no evidence to suggest that the applicant was using sub-maximal effort at the joint examination.

The respondents’ case is tainted by doubts

85.  When examined alongside with the applicant’s case, the respondents’ case is not as straightforward or consistent.  There are a number of obvious doubts to which there is no ready answer.

86.  First, Ma gave very firm evidence that around February 2013, his working partner was not the applicant but another worker and that he only worked with the applicant from mid to late March.  Ma made his witness statement in August 2016, shortly before the trial.  (This was the third round of witness statements filed in these proceedings.)  As Ms Tjia emphasised in her submissions, it was more than three years after the event.  How was Ma able to recall with such certainty the identity of the person with whom he worked then? Unlike the applicant’s case (ie, an accident happened when he worked with Ma), there was no particular incident which happened during that time which would make an impression on Ma.   Ma confirmed in cross-examination that as a casual labourer, he worked on different sites from time to time.  The 1^st respondent was only one of his employers.  Given that background, it is rather surprising that Ma was able to have such a clear and resolute recollection that he only worked with the applicant in March, but not February, in 2013.  One cannot help but have some doubt over the reliability of Ma’s evidence.

87.  Secondly, another puzzling aspect of Ma’s evidence is his insistence that if a worker wished to take leave from work at the Site, there was no need to inform the 1^st respondent (whether Fong or others) in advance. He claimed that since they were all casual workers and their wages were based on the actual number of days they had worked, the workers, including himself, could effectively just turn up for work on any day as they wished.

88.  I accept that in reality there might be cases where a worker would simply fail to turn up for work without any advance notice.  However, this is different from what Ma was suggesting – he was saying that the general practice was that workers would just turn up or not turn up for work as they chose.  He said he had never seen any worker asking for leave during his time at the Site.  This seems to be inherently improbable as it does not make much commercial sense.  The 1^st respondent was the air-conditioning sub-contractor at the Site.  It hired around 20 workers there.  One would expect that at least for manpower management purposes, the 1^st respondent would require its workers to inform it in case of leave.

89.  Ma’s evidence in this regard is also at odds with Fong’s testimony. Fong admitted that for himself if he needed to take leave, he would certainly inform So.  He would not just skip work.  He was asked in cross-examination whether it was a requirement imposed by So, Fong said yes as it would affect the work partner.

90.  Thirdly, on the same issue of leave, when the applicant’s story is examined alongside the respondents’, the former seems to make more common sense and accords more with inherent probabilities than the latter.  In the applicant’s account of events, on each occasion when he found it necessary to take leave from work to seek medical treatment, he would always notify Fong in advance, eg, on 21 and 27 February – see paragraphs 20 and 22 above.  Further, when the applicant was on leave, So, on a number of occasions, took the initiative to make enquiries with him to check when he could return to work – see paragraph 24 above. 

91.  That is to be contrasted with the respondents’ account, according to which, notwithstanding the applicant’s prolonged absence from work from 22 February to 10 March (except 27 February when the applicant resumed work for one day), the applicant did not tell anyone who worked for the 1^st respondent why he needed to take leave.  More surprising still, no one from the 1^st respondent seemed ever to have checked with the applicant as to what was going on.  This total absence of communication between the applicant and the 1^st respondent seems odd in itself and even odder when one takes into account the (indisputable) background that the applicant had previously worked regularly without taking any extended leave, whilst under the employment of the 1^st respondent.

92.  Fourthly, To’s evidence is highly unsatisfactory as it is fraught with irreconcilable inconsistencies and contradictions.  That is perhaps the most problematic part of the respondents’ evidence and casts much doubt on their case as a whole.

93.  In his supplemental witness statement, To said that he reported the applicant’s accident to a supervisor named Lai of the 2^nd respondent in about late February 2013.  However, since at that time the applicant had not submitted any sick leave certificates or medical receipts (he only did so on 11 March), the 2^nd respondent did not process the claim. Subsequently, To tried to submit the claim to the safety officer of the 3^rd respondent.  The latter however refused to handle the claim as it was more than one month after the accident.

94.  The timing disclosed by the above clearly contradicts the respondents’ pleaded case, which is that it was not until 11 March that the 1^st respondent learnt of the accident for the first time.  On that basis, it would not have been possible for To to speak to Lai about the accident in late February.  In examination-in-chief, To altered his evidence on the timing by saying that the witness statement was drafted wrongly and the reference to late February 2013 should have been to 11 March instead. 

95.  Yet, as Ms Tjia pointed out both in cross-examination and in closing, the correction did not make sense either since under the corrected version, on the same day, ie, 11 March, the 2^nd respondent could not have refused to process the claim on the ground that the applicant had produced no sick leave certificates.  It was in fact the very day on which the respondents say the applicant handed over those certificates.

96.  To eventually said in cross-examination that the statement concerning the 2^nd respondent in his supplemental witness statement was wrong and should be deleted as the event had never taken place at all.

97.  In view of these blatant inconsistencies, I find To to be an unreliable witness and his evidence must be treated with great caution.   Mr Wong himself explicitly accepted in his oral closing submissions that To’s evidence was not satisfactory and he would not say that To was wholly reliable.  In my view, To’s inconsistent evidence significantly undermines the respondents’ case as a whole, which is partly premised on the allegation that the applicant did not inform the 1^st respondent of his accident until as late as 11 March.  But To seems to be giving conflicting evidence suggesting that he might have known of it in late February. 

98.  Mr Wong sought to salvage the respondents’ case by saying that To’s evidence was only of peripheral value.  The key evidence should be that of Ma and Fong as they should have had direct knowledge of the accident if it in fact had happened and To only came into the picture at a much later stage and his evidence did not really show whether the accident had happened or not.  Mr Wong asked rhetorically – even if To’s evidence was not accepted, “so what”?

99.  I do not accept that submission.   There are a number of important factual matters on which the applicant and To gave opposing accounts, most notably, the conversation between them at the doorstep of the 2^nd respondent’s office on 11 March (ie, did the applicant, of his own initiative, choose not to speak to the 2^nd respondent all of a sudden or did To persuade him not to?) and whether the April payment was a loan (as claimed by To) or for medical expenses and sick leave (as alleged by the applicant).  These factual allegations form an important part of the respondents’ case.  If To was not telling the truth on these matters, the respondents’ case cannot really stand.  If the April payment in fact was for sick leave and medical expenses, it means that the 1^st respondent at that time accepted that the accident had happened as otherwise it would not have made such payments to the applicant.

Findings

100.  Having gone through and weighed the evidence as above, I am of the view that the applicant is a credible witness and his evidence is reliable.  I accept his factual case to be true.  Further, given the doubts on the respondents’ case, to the extent that the respondents’ evidence is in conflict or inconsistent with the applicant’s, I prefer the latter to the former.

101.  It follows, and I find, that the accident did take place as alleged by the applicant.  The respondents are liable to pay compensation under the Employees’ Compensation Ordinance, Cap 282.

QUANTUM

102.  I accept the applicant’s evidence on the pain and symptoms which he suffered and still suffers as a result of his elbow injury.

103.  On the issues of loss of earning capacity and sick leave periods, I prefer Dr Miu’s opinion to Dr Kong’s.  The main thrust of Dr Kong’s opinion is that since the applicant was able to return to his former occupation as an air-conditioner technician shortly after the accident, he would assess his loss of earning capacity at a mere 0.5% and the appropriate sick leave period to be not more than four weeks.

104.  But this seems to have overlooked the fact that according to the applicant’s own account, he was only able to engage in lighter works than before, such as handling smaller air-conditioning pipes in his new job. 

105.  The assessment of 0.5% suggests an impairment of an almost negligible degree.  It does not sit well at all with the applicant’s allegation, which I accept, that he is no longer able to handle heavy objects which he used to handle in his former job.

106.  Further, in the Report, it was stated, without any query raised by Dr Kong, that during the physical examination, the applicant had “[p]ain with resisted wrist extension”.  Dr Kong also confirmed in cross-examination his opinion that the applicant would have “mild” residual pain.  In my view, the pain experienced by the applicant would clearly have an impact on his earning capacity which is more than negligible, given the manual nature of his job.

107.  For the above reasons, I consider that Dr Miu’s assessment should be adopted.  As Ms Tjia put it in her oral closing submissions, although the assessment of 5% is five times the assessment made in Form 9, it simply means the applicant retains 95% of his earning capacity.  She submitted, and I accept, that this is consistent with the applicant being able to continue to work as an air-conditioner technician but with a reduced ability when it comes to handling heavy objects.

108.  For the same reasons, I accept Dr Miu’s assessment of the reasonableness of the sick leave periods.  I also find the medical expenses incurred by the applicant in respect of his elbow injury to be reasonable and should be allowed. In this regard, I reject Mr Wong’s submission that since the applicant started his new job in mid-May 2013, any medical expenses incurred after that day should be rejected.

Amount of compensation

109.  The applicant was 35 years old when the accident happened.

110.  The monthly earnings of the applicant under section 11 of the Ordinance has been agreed at $26,370.  This exceeds the statutory cap of $23,580 applicable as of the date of the accident pursuant to the Sixth Schedule of the Ordinance. It is common ground that the latter figure should be used in calculating the compensation payable under section 9 whereas the former figure should be adopted for calculating the compensation under section 10.

Section 9

111.  As ruled above, the applicant’s loss of earning capacity is 5%.

112.  The compensation payable under section 9 is therefore $113,184 (ie, $23,580 x 96 x 5%).

Section 10

113.  In his closing submissions, Mr Wong confirmed that if the court prefers and accepts Dr Miu’s opinion regarding the extent of the applicant’s injury and the reasonableness of the number of sick leave days, the respondents would agree that the total number of sick leave days should be 171 days for the purpose of section 10.

114.  The compensation payable under section 10 is therefore $120,247.20 (ie, $26,370 x 171/30 x 4/5). 

Section 10A

115.  The medical expenses payable under section 10A is $11,765.

116.  Against the above sums, it is agreed that the applicant should give credit for the sum of $11,028 already received by him in April 2013.

Summary

117.  In summary, the amount due to the applicant is:-

	$
Section 9	113,184.00
Section 10	120,247.20
Section 10A	11,765.00
Less: amount already received	(11,028.00)
Total:	$234,168.20

ORDERS

118.  Accordingly, there shall be judgment against the 1^st to 3^rd respondents in the sum of $234,168.20.  Interest shall accrue on this sum at half the judgment rate from the date of the accident, ie, 5 February 2013, until the date of judgment and after that at judgment rate until payment in full.

119.  The applicant’s appeal against the assessment in Form 9 is allowed as provided for above.

120.  I further make an order nisi that the 1^st to 3^rd respondents do pay the applicant’s costs of the application, to be taxed if not agreed, with certificate for counsel and that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.