LEUNG HAK CHAI v. LAMMA TRANSPORTATION CO LTD

DCEC 599/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 599 OF 2010

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J U D G M E N T

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Introduction

1.  This dispute concerns whether the respondent is the employer of the applicant.

Background

2.  On 3 December 2009, while the applicant was working on a barge known as “南亞8号” which means “Lamma No.8” (“the Barge”) as a crane operator on Indonesian waters, he jumped from the Barge onto a cargo vessel anchored beside it and suffered injury (“the Accident”).

3.  The applicant claims for compensation under ss9, 10 and 10A of the Employee Compensation Ordinance, Cap 282 (“the Ordinance”).  He also appeals against the decision of the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) which assessed the loss of earning capacity of the applicant at 3.5%.

4.  The respondent, on the other hand, appeals against the finding of the Board as to the loss of earning capacity and the period of absence from duty necessary as a result of the injury.

The applicant’s case

5.  The applicant is the only witness of his case.

6.  He told the court that he was employed by the respondent as from June 2009.  His position was derrick crane operator and was sent to work at Pontianak, Indonesia.

7.  At around 1630 hours on 3 December 2009, a cargo vessel was anchored by the side of the Barge (“the Vessel”).  The duty of the applicant was to operate the derrick crane on board of the Barge to remove bauxite from flat-bottomed barges (anchored at the other side of the Barge) to the Vessel.

8.  Exhibit R1 is a photograph which depicts a vessel which is similar to the Vessel.  Exhibit A1 and A2 are photographs showing a model of a vessel similar to the Vessel.

9.  According to a Certificate of Safety and Temporary Loading Line (Bundle p174-3), the length of the Barge is 43.33 m.  At one end of the Barge, there is a 2-storey structure known as “樓仔” (“the Structure”) where the applicant took rest, meal and slept during the time working at Indonesia.  At the other end, there is a triangular tower (“the Tower”) and the derrick crane.  The derrick crane control room is situated at the 3^rd level (counting from the top) or 4^th level (if counting from the bottom) of the Tower (“the Control Room”).

10.  Exhibit R4 is a photograph which was taken years ago depicting the Barge.  The roof part of the Structure is now not the same like before as can be seen from Exhibit R2 and R3 which are recent photographs of the Barge.

11.  Before the applicant began his work, he had to check the neighbouring areas of the Barge to ensure that there was nothing, whether on board of the Barge or the Vessel, which would obstruct the movement or operation of the crane.  Since the rope ladder which was used as the means of access between the Barge and the Vessel had been taken away, the applicant jumped from the Barge onto the Vessel in order to check the situation of the Vessel.

12.  The applicant first of all went to the roof top of the Structure (“the Roof”) and got to the port side edge of the same.  There was a huge vehicle tyre affixed on the port side railing of the 1^st  floor of the Structure (see the circular mark which represents the position of the tyre on Exhibit R4A) to act as a cushion to avoid damage that may be done to the Vessel and/or the Barge in case they came too close to each other.

13.  According to the applicant, the name plate “南亞 LAMMA NO.8” (as shown in Exhibit R4) had been removed.  At the material times, there was no railing at that part of the Roof.  Therefore, he can get even closer to the Vessel by standing on the top part of the tyre.  From that spot, he managed to jump over the railing of the Vessel and landed onto the deck of the same which was about 3 to 4 ft away. The applicant said that the deck of the Vessel and the Roof were of the same level.

14.  After the applicant had landed on the deck, he took his first step and at that juncture, he slipped and fell.  The applicant said that there were sand and/or gravel on the deck.  When he fell, his lower body landed on the deck and sustained injury.

15.  Subsequently, a worker on board of a flat-bottomed barge nearby came to rescue and notified the colleagues of the applicant including Mr Leung Kang Fai (“Mr. Leung”) who was the supervisor of the applicant.

16.  It was not until 5 December 2009 that the applicant was sent to a hospital known as Rsu. St. Antonius at Pontianak for treatment.

17.  On 6 December 2009, the applicant flew back to Hong Kong and was sent to the Accident and Emergency Department of Princess Margaret Hospital.  X-ray was taken.  It revealed that there were factures at both heels.  He was then transferred to Tuen Mun Hospital where he received an operation.

18.  The applicant had received 43 sessions of occupational therapy until 18 November 2010.  Mr Jonathan Chow, occupational therapist of Tuen Mun Hospital, stated in his report dated 25 April 2012 that the applicant showed limitation in prolonged and heavy strike of foot paddles (Bundle p200).

19.  The applicant also attended 21 sessions of physiotherapy treatments until 1 June 2010.  Mr Chung King Man, physiotherapist of Tuen Mun Hospital, in his report dated 29 February 2012 revealed that the applicant was discharged because of static progression.  However, he noted in his report that the active range of motion for left ankle were 25° (plantar flexion) and 15° (dorsi flexion).

20.  Indeed, the applicant had attended follow-up treatments at Tuen Mun Hospital from time to time thereafter.

The respondent’s case

21.  There are two witnesses: Mr Leung and Ms Pang Ka Wan Catherine (“Ms Pang”).

Mr Leung

22.  Mr Leung told the court that he was the supervisor of the Barge and another Barge known as “南亞68号” which means “Lamma No.68”  These barges are owned by an Indonesian company known as PT. Ocean Global Shipping (“the Company”).  He worked as an independent contractor for the Company.

23.  In May 2009, the Company acceded to the request of Mr Leung to increase manpower.  As a result and through the introduction of another colleague of Mr Leung, the applicant was engaged by the Company as a derrick crane operator.

24.  On 3 December 2009, the applicant was off-duty.  While Mr Leung was working on board of a barge, a worker of the Vessel notified him that the applicant was injured.  Mr Leung then went to the Vessel and found the applicant sitting on the deck.  There was no sand/ gravel on the deck.

Ms Pang

25.  Ms Pang was an accounts executive of the respondent for the period between 14 July 2008 and 31 March 2010.  She is in fact the daughter of Mr Pang Wai Kuen (“Mr Pang”) who was the sole director and shareholder of the respondent.  Mr Pang passed away on 26 July 2011.  Yet, Mr Pang had made a witness statement dated 10 June 2011 and Ms Pang has adopted the same as part of her witness statement.

26.  Since March 2009, the Company has engaged the respondent as an agent to engage derrick crane operators from Hong Kong to work at Indonesia.  The respondent did engage derrick crane operators for the Company including the applicant and Mr Leung.

Analysis and Discussion

27.  The keys issues are:

(i)  whether the applicant was an employee of the respondent at the time of the Accident; and

(ii)  whether the Accident was arising out of and in the course of the employment of the applicant.

The Vessel and the work process

28.  Before I move on to discuss the issues, I think it is better for me to further describe the Vessel and the process of the work carried out by the applicant.

29.  The Vessel is a bulk carrier of around 35,000 tonnes and about 180m long, with railings of around 4 ft tall surrounding the edge of the deck.  There are 5 cargo holds with 4 derrick cranes placed in between each of the holds.  The holds are covered by 2 side-by-side foldable doors at its half-length.  They open towards bow and stern directions.  When the doors are fully opened, the doors will stand up-straight in a vertical position with half of the door folded down.  There are 5 air vents built alongside each of the cargo holds.

30.  The cargo holds are of square shape with each side ranging from 20m (for the 1^st and last holds) to 23-25m (for the other 3 holds in between) in length.  The space between each hold is around 4m wide.  The openings of the holds are around 1.5m above the deck level.  There is also a 3m width passageway between the holds and the side of the Vessel on each side of the Vessel.

31.  Ms Lan, Counsel for the respondent, has very helpfully summarised the operation of the derrick crane in her final submission.  I will thus simply reproduce it here.

32.  The operator would first position the Barge and adjust the angle of the derrick boom such that its clamp (around 2m x 1.5m) could reach the area above the hold where he intends to unload.  To pick up the load, the operator would move the derrick boom to the space above the flat-bottomed barge and lower its clamp.  Having grabbed the bauxite, the operator would close the clamp, lift it up by shortening the cable and then move the derrick boom from left to right until it reaches the space above the hold where he intends to unload.  To unload, the operator needs only to open the clamp to release the load into the hold from height.  When the area below the swing path of the derrick boom has been filled, usually after several tens of grabs, the operator would adjust the angle of the derrick boom thus changing its swing path to a different location.

Was the applicant an employee of the respondent?

33.  According to the applicant, he approached the respondent through the introduction of Mr Kwok Tak Loy (“Mr Kwok”), his brother-in-law and a derrick crane operator of the Barge, sometime in May/June 2009.

34.  During the interview at the respondent’s office, a Ms Kwan and a Ms Lung of the respondent told the applicant that he had to go to work at Indonesia and his wages be calculated on a daily basis.

35.  The applicant said that no one had told him that the Company was his employer or the respondent was not his employer.

36.  On this, Mr Leung’s evidence was that Mr Kwok did approach the applicant and advised him of the terms and remunerations for working at Indonesia.  Thereafter, the applicant went to the respondent’s office for an interview (“the Interview”) and to hand in his passport to the respondent for arranging air-ticket to Indonesia.

37.  It is clear that there is no direct evidence from the respondent as to what was said during the Interview after which the applicant was engaged by the respondent to work at Indonesia.  Mr Leung’s evidence, even if accepted, only goes to show that Mr Kwok had informed the applicant of his salary package and terms of engagement.  Mr Leung did not give evidence to the effect, be it on hearsay or not, that the applicant was told that he was engaged by the Company.

38.  I note that there is still the evidence of Ms Pang and the witness statement of Mr Pang which she adopted as her evidence.  However, the evidence of Ms Pang, in relation to what had happened during the Interview is, at the best, multiple-hearsay.  Ms Pang has to rely on the witness statement of Mr Pang who in turn relied on the words of Ms Lung and/or Ms Kwan, the staff members of the respondent.  Yet, there was no mention that the applicant was told that he was engaged by the Company or that he was not employed by the respondent.

39.  According to Ms Pang, while both Ms Lung and Ms Kwan have left the employment of the respondent, she is still in the position to contact them.  However, there is no plausible reason for not calling them or any one of them as witness in this trial.

40.  For the reasons aforesaid, I attach no weight to the evidence of Mr Leung and Ms Pang in respect of the engagement of the applicant.

41.  As a result, I accept the evidence of the applicant in this regard.  That is, he was not told anything to the effect that he was engaged by the Company or he was not employed by the respondent.

42.  I have considered the submission of Ms Lan, who has very sensibly not pursued the independent contractor issue, that the circumstances of the case should lead to the conclusion that the applicant well knew that he was going to work for the Company or for someone in Indonesia.  There is, however, no clear evidence to show that the applicant was being told anything about this.  For this reason, I do not accept her submission.

43.  I have considered all the evidence and the circumstances in this regard. I am of the view that the only reasonable conclusion is that the applicant was employed by the respondent. This conclusion is supported by the salary receipts prepared by the respondent (Bundle p 168-171).  These receipts, with the letterhead of the respondent, mentioned the payment of salary to the applicant.  If the applicant was employed/engaged by the Company, the receipts should somehow reflect such relationship between the applicant and the Company.

Whether the Accident was arising out of and in the course of the employment of the applicant?

44.  Section 5(1) of the Ordinance provides that

“Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”

45.  Section 5(4)(a) of the Ordinance further stipulates that

“an accident arising in the course of an employee's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment.”

46.  The burden is on the applicant to establish that the personal injury he sustained arose out of and in the course of the employment with the respondent.

47.  Mr Cheung, Counsel for the applicant, submitted that special rules apply to seamen: the course of employment is generally continuous as they are subject to legitimate calls of their employers at all times.  Therefore, their course of employment will thus include periods of active duties, meal times, resting and sleeping on the ship. (Hong Kong Personal Injury Service, LexisNexis Butterworths, 2012, Part IV paragraph 251 at page 112)

48.  Mr Cheung submitted that while the applicant is not a seafarer within the definition of the Merchant Shipping (Seafarers) Ordinance, Cap 478, the general principles as mentioned above still apply to the applicant because the applicant, like an ordinary seafarer, had to work at Indonesia for 10 odd days to 20 days per trip.  For each trip, apart from working on the Barge on shifts, the applicant also spent his meal time, rest and sleeping time on board of the Barge.

49.  I agree with Mr Cheung.  However, this does not really advance the applicant’s case too much.  The reason is that the respondent is now saying that the applicant, by his conduct (i.e. going on board of the Vessel or jumping onto the Vessel), had taken himself away from the course of employment.

50.  Ms Lan submitted that there was no reason for the applicant to get on board of the Vessel.  She further submitted that it was not possible for the applicant to jump onto the Vessel as he described and that the injury sustained by the applicant did not tally with incident as put forward by the applicant.

The reason to get on board of the Vessel

51.  I do not have to be satisfied as to how the accident occurred.  If the applicant can establish that he went to the Vessel for the purpose of or for something incidental to his work, be it necessary or not, then he is entitled to compensation.

52.  The applicant said that he had to carry out routine check on board of the Vessel to see if there was anything that may affect the operation of the derrick crane or the boom. If I accept his version, it must be something for the purpose of or incidental to his work.

53.  In the witness box, he first explained that there were wooden boxes of different sizes and heights being placed at the walkway of the deck.  He had to ask someone to remove them. There were also the railings (around 4 ft tall) which surrounded the edge of the Vessel and the air vents (around 4 ft tall) by the side of the cargo holds.  The applicant said that he had to check them before he started to work.

54.  The applicant further said that he had to check if there were any motor oil barrels (around 1 m tall) around the cargo holds because if there was any mistake on the part of the crane operator by releasing the bauxite not into the cargo hold but the area around, the bauxite may bury any such barrels nearby and/or cause them to fall into the hold.

55.  There was then the derrick crane and its steel cable on the Vessel.  The applicant said that the derrick crane on the Vessel was not in a perfect upright position and that the steel cable of the derrick crane had dropped near to the edge of the hold.

56.  As to the doors of the cargo holds, the applicant said that he had to ensure if they were in upright position and properly locked.

57.  Ms Lan submitted that the court should not accept the applicant’s evidence because the same is inherently improbable and incredible.  I agree.

58.  While there is no direct evidence as to the length of the derrick boom, Exhibit R2 and Exhibit R3 (photographs which depict the Barge and the derrick boom in operation) can show that if the clamp was lifted up to an appropriate height, nothing on the deck of the Vessel, be it wooden box, railing, air vent or motor oil barrel, could be able to obstruct the swing path of the derrick boom.  Therefore, it is totally not necessary for the applicant to go on board of the Vessel to check such items.  Further, for the railings and the air vents, they are fixtures and there is nothing that the applicant can do even if they really obstruct the swing path.

59.  In respect of the derrick crane, its steel cable and the doors of the cargo hold, I accept that they may cause obstruction if they were not in their correct positions.  Yet, the evidence in this regard was not mentioned in the witness statement of the applicant.  In fact, the problem concerning the position of the door of the cargo hold was not mentioned until under cross-examination.  If the applicant really got onto the Vessel to check these items, there is no reason why the applicant had failed to mention them in his witness statement.

60.  In the premises, I reject the evidence of the applicant that he went on board of the Vessel to check if there was anything that may obstruct the operation or the swing path of the derrick crane/ derrick boom.

61.  It is my ruling that the applicant has failed to prove that he went on board of the Vessel for the purpose of or for anything incidental to his employment.

The Jump

62.  The applicant’s version is that the distance between the Barge and the Vessel was only 3 ft and that the Roof were of the same level at the time of his jump.

63.  Mr Leung told the court that the gap between the Roof and the Vessel should be around 6 ft to 7 ft and that the Roof is 10 ft higher than the deck of the Vessel.

64.  In the light of the evidence of Mr Leung, Ms Lan submitted that the gap should be at least 6 ft.  First, there was the gap of at least 3 ft as accepted by the applicant.  Second, there was a walkway of 6 ft to 8 ft wide between the side of the Barge and the side of the Structure (see Exhibit R4).  Therefore even if the applicant stood on top of a tyre of 3 ft wide, the gap should be at least 6 ft (3 ft + 6 ft – 3 ft).

65.  If one looks at Exhibit R4 more carefully, one will find that the side of the Roof protruded into the walkway.  While it is not possible to tell the extent of the protrusion by just looking at the photograph, the gap should be less than 6 ft.

66.  However, even if I accept the applicant’s version in that the gap was only 3 ft, I am still of the view that it was not physically possible for the applicant to jump from the Roof to the Vessel bearing in mind that the applicant just stood on top of the tyre and jump with no run-up and that he had to jump over the railing which was about 4 ft tall.

67.  I thus reject the account of the applicant as to how he jumped onto the Vessel.  On the other hand, I accept the evidence of Mr Leung that the Roof is 10 ft higher than the deck of the Vessel because it would not be possible for the applicant to jump from the Barge to the Vessel unless there was a height difference.

The Injury

68.  The applicant said that after the jump, he landed safely on the deck of the Vessel with both feet.  When he took out his first step by stepping his left foot forward, his left foot stepped on the sand/gravel and slipped.  He fell back onto the ground.

69.  Ms Lan submitted that the applicant could not have suffered from fractures to both left and right calcaneum if he slipped in the way as he described.  She referred the Court to  Gray’s Anatomy, at p199

“The Calcaneum, or Os Calcis (calx, the heel), is the largest and strongest of the tarsal bones … It is situated at the lower and back part of the foot, serving to transmit the weight of the body to the ground, and forming a strong lever for the muscles of the calf.”

70.  Ms Lan also referred the court to some authorities concerning injuries to calcaneum.  All these cases involved fell from height from 1m to 4m.

71.  On this, Mr Cheung submitted that the medical experts for both parties, i.e. Dr Wong and Dr Chun, agreed that “the fractures were compatible with the injury described”. (Bundle p185)

72.  I am of the view that “injury described” must mean paragraph 3 of the joint medical report dated 9 April 2012:

“Mr Leung said that on 3/12/2009 in Indonesia working on the barge and a cargo ship 4-5 feet apart from each other at the same level, he slipped and fell forward and sustained injury to both heels.”

73.  If otherwise, I trust the doctors would have stated clearly that the injury sustained by the applicant did not tally with the slip and fall as he described.

74.  In the circumstances, I do not think that the medical evidence in this case supports Ms Lan’s contention.

Loss of Earning Capacity

75.  The applicant has lodged an appeal against the decision of the Board dated 1 August 2011 finding that the applicant suffered a loss of earning capacity at 3.5%.  His notice of appeal is dated 8 August 2011.

76.  Mr Chueng submitted that both Dr Wong and Dr Chun agreed that the loss of earning capacity should be 5%.

77.  Ms Lan did not dispute that.

78.  I have considered the injury suffered by the applicant and the relevant medical reports. I accept the views of Dr Wong and Dr Chun. I allow the appeal and find that loss of earning capacity at 5%.

Ruling as to Liability

79.  I have considered all the evidence and the submissions of the parties.  Since the applicant did not get on board of the Vessel to check if there was anything that may obstruct the operation or the swing path of the derrick crane/derrick boom, there is nothing to support the applicant’s contention that the applicant was still in the course of his employment when he got onto the Vessel.

80.  For the reasons aforesaid, it is my ruling that the applicant has failed to prove his case even on a balance of probabilities.  I dismiss the applicant’s claim.

Quantum

81.  If I am wrong in that I should have ruled that the applicant is entitled to compensation, the following is my award.

Section 9

82.  I would award $21,000 x 72 months x 5% = $75,600.  The quantum is not in dispute.

Section 10A

83.  I award $7,294 in the light of the concession of Ms Lan and the clarification made by Mr Cheung.

Section 10

84.  For this head, while Ms Lan is prepared to accept monthly income at $21,163, she however disputes the total incapacity to be the whole period of absence from duty as certified by the doctors.

85.  Dr Chun, medical expert for the respondent, opined that reasonable sick leave period should be 6 months from 3 December 2009 plus 2 weeks from 7 June 2011 (paragraph 51 of the Joint Report).  On the other hand, Dr Wong, the medical expert of the applicant, accepted that the sick leave, a total of 472 days, granted by the Board was reasonable (paragraph 52 of the Joint Report).

86.  I do not accept Dr Chun’s view. Firstly, I do not think that the statistics provided by him in his supplement report dated 13 June 2012 are of any use.  It is meaningless to refer to the average healing time.  Secondly, Dr Chun made reference to the x-ray (taken at the joint examination on 17 February 2012) which shown that the fractures were well healed and commented that this would indicate little anatomic factor for delay in convalescence and rehabilitation.  However, the fact that the fractures were well healed does not have any direct bearing as to when the applicant was recovered to the extent that no sick leave should be granted.  Sick leave could be granted because of pain and discomfort.

87.  The sick leave certificates in this case, like that in Lau Man Keung v Yiu Wing Construction Co Ltd [2002] CACV 2232/2001, 10 June 2002, were issued by different doctors.

88.  In my ruling, there is insufficient evidence to rebut the evidence of the medical certificates.  Therefore, the appeal of the respondent as to the period of absence from duty is dismissed.

89.  In the premises, the amount of compensation under this head would be $266,372 ($21,163 x 4/5 x 472/30).

90.  The compensation would be $349,266 ($75,600 + $7,294 + $266,372) with interest.

Conclusion

91.  The applicant has failed to prove his case and I dismiss his claim.

92.  The applicant to pay the respondent cost of this action including all costs reserved to be taxed if not agreed with certificate to counsel.