NGAI TAT WAH v. ZUNG FU CO LTD

DCEC 468/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 468 OF 2010

____________

____________

J U D G M E N T

1.  Ngai, the Applicant, claims employees’ compensation in respect of alleged injury at work in the course of his then employment with Zung Fu, the Respondent, on 29 May 2008. At the beginning of the trial, the parties agreed the quantum, thus leaving only the issue of liability for determination.

Background

2.  In March 1990, Ngai started to work as a senior electrician at Zung Fu’s service centre at Aberdeen, Hong Kong.  Since 2006, Ngai had been a senior mechanic of Team B of the repair and maintenance division of the service centre.  The employment was terminated with effect on 9 April 2009.

3.  One week later, on 15 April 2009, Ngai lodged a Notice of Accident at Work with the Labour Department.  By that, he reported injury to his spine in the course of unscrewing a torsion housing bar of a vehicle under repair at Zung Fu’s service centre on 29 May 2008.  Zung Fu received notice of that on 21 April 2009.

4.  In reply, Zung Fu denied receipt of any report of or knowledge about the alleged injury to Ngai at work until then.  What Zung Fu reckoned was that Ngai started to have waist and back pain in late April 2004.  His condition was said to have improved by medication.  However the back pain recurred towards the end of 2007.  On 29 May 2008, Ngai obtained a doctor’s certificate advising him to avoid heavy labour for 1 week; but still without reference to injury at work.  Zung Fu filed Form 2 afterwards; but only to state that the alleged injury at work was under investigation.

5.  On 5 May 2009, Ngai amended the Notice of Accident by correcting the date of the alleged injury at work to 28 May 2008.  However 2 days later, on 7 May 2009, he corrected the date back to 29 May 2008.

Ngai’s case

6.  Ngai gave evidence.  He described how he was loosening the very tight torsion housing bar of the vehicle under repair using tremendous strength on the day in question.  In the course of that, he felt pain in the waist area. He was unable to finish his task; and his colleague, Lau, came to his assistance.  After work that day, Ngai went to Dr Lee Wai Clinic, a private medical practice that he had consulted on numerous occasions since 2004.  The doctor advised him to avoid heavy labour for 1 week.  On the following day, he returned to the service centre and informed Lau of that.

7.  Lau was supposed to give evidence in corroboration of the above; and has filed his statement for that purpose.  He was not, and allegedly could not, be called.  Hence his statement is disregarded.  Ngai named 3 other colleagues whom he has allegedly informed of what happened to him on 29 May 2008.  Of course, none of them could be heard, as they were mentioned for the first time in court.

8.  Ngai added that he did inform Kwok, the manager, of his injury at work and the doctor’s above advice on 30 May 2008.  According to him, Kwok suggested that a specialist’s certification of his condition was necessary.  Appointment was then made for Ngai to consult Dr Poon, an orthopaedic specialist, on 17 June 2008.  X-ray was taken. On 23 June 2008, Dr Poon reported with the similar recommendation that that Ngai should avoid avoid heavy labour.  Dr Poon’s report was also forwarded to Zung Fu.

9.  According to Ngai, he was not aware of the need to report his injury or his entitlement to claim compensation in the circumstances.  His concern was seeking treatment.  After all, he had his medical expenses covered by the company.

10.  Ngai then requested to be assigned with lighter duties including driving task.  In April 2009, Kwok conveyed his company’s offer to Ngai the task of driving but at a lower salary.  In the absence of agreement, Zung Fu terminated his employment.  Ngai complained to the Labour Department in April 2009 when he was advised of his right to claim employees’ compensation for his alleged injury at work nearly a year ago. He filed a lawsuit at the Labour Tribunal.  Meanwhile he also lodged his Notice of Accident for the purpose of claiming employees’ compensation.

Zung Fu’s case

11.  Zung Fu’s case is very much what was stated in its reply to the Labour Department upon its receipt of the Notice of Accident in late April 2009.  In the trial, it called 3 witnesses.

12.  Cheung was at the material time the foreman of the Mechanic Team of the repair and maintenance division.  Ng was at the material time the team leader of Team B of the Mechanic Team.  Ngai was a member of Team B at the material time.

13.  Both Cheung and Ng confirmed the absence of report of any case of injury at work during the period between April and July 2008.  Contrary to what Ngai said in court, enquiry revealed that the alleged injury of Ngai at work was also unknown to the other members of the team.  In April 2009, Kwok and Cheung respectively made enquiry about Ngai’s complaint about injury at work.  Cheung and Ng respectively reported as said above; and also made statements to the similar effect to the insurer of Zung Fu.

14.  Kwok referred to his statement to his company’s insurer in May 2009.  He explained that he was the assistant manager; and assumed the office of the manager in June 2008.  He recalled no incident or report of injury at work on 29 May 2008.  Ngai left work at 6 pm that day; and returned at 11 am the following day.  Kwok understood that Ngai had to consult a dermatologist before reporting duty that morning.  Ngai confirmed that in court.  Upon his enquiry, the colleagues of Ngai recalled no complaint of injury at work by Ngai either.

15.  Kwok agreed that Ngai did inform him of back pain and asked to be assigned with lighter duties because of his inability to handle heavy duties.  Kwok suggested that Ngai would need to obtain a medical specialist’s report.  Kwok checked with Ngai on the progress on 4 June 2009.  It was on 13 June 2008 when Ngai supplied to him the certificate issued by Dr Lee Wai Clinic on 29 May 2008.  On 18 June 2008, Ngai reported to him that X-ray was taken on the day before.

16.  Kwok agreed that he and Ngai did have discussion of assignment of Ngai to become a driver and the terms including proposed reduction in salary.  There was also discussion of Ngai’s condition among Kwok, Ngai and some other colleagues on 8 April 2009.  Report was made to the higher management.  On the following day, 9 April 2009, notice of termination of employment was given and final payment made to Ngai.

17.  Upon notification of Ngai’s Notice of Accident on 21 April 2009, Kwok made enquiries with various persons including Cheung and Ng mentioned above.  As mentioned above, no complaint or report of injury at work on 29 May 2008 had ever been received.

Discussion

18.  On behalf of Zung Fu, the issue raised is not so much whether Ngai felt pain at his back during work on 29 May 2009 which caused him to consult the doctor after work that day.  The dispute is whether the work caused him the alleged sprain injury on that day which caused or contributed materially to the present condition being complained about.  Miss Leung for Ngai accepted that that is her client’s burden of proof.

19.  Much was said about the confusion Ngai had in respect of the date of the alleged injury at work, i.e., 28 or 29 May 2008, in his Notice of Accident.  The possibility of a mistake having been made might not be strange.  But Ngai’s explanation is.  According to Ngai, he had referred to the certificate issued by Dr Lee Wai Clinic on 29 May 2008; and believed that he consulted the clinic the day before that gave rise to the sick leave.

20.  However, Ngai was never mistaken about returning to the service centre on the day after consulting the clinic.  It is actually his case that on that occasion, he reported to Kwok the alleged injury at work.  The fact was that the clinic gave him no sick leave. That certificate issued by Dr Lee on 29 May 2008 was conspicuously (in English and Chinese) an attendance certificate where the doctor cared to cross out the printed option of the certificate being “sick leave”.

21.  On behalf of Zung Fu, it is emphasized that there is objectively no evidence of any complaint about sprain injury on 30 May 2009 until after the termination of Ngai’s employment.

22.  It should be clear that Ngai did not inform Cheung, Ng or Kwok of his alleged injury at work on 29 May 2008.  There is dispute as to whether Ngai informed Kwok of the alleged injury at work on 30 May 2008 (according to Ngai) or 2 June 2008 (according to Kwok). But it is really the content of their conversation that matters more.  Ngai said that he actually produced to Kwok during their conversation the attendance certificate issued by Dr Lee Wai Clinic on 29 May 2008.  Kwok denies that.

23.  Miss Leung suggested that Kwok was self-contradictory in that he somehow decided to suspend the assignment of heavy duties to Ngai, whilst the necessary medical proof of Ngai’s condition was yet to come.  But this in my view could equally be an act of prudence on the part of Kwok.  According to Kwok, he did not just leave it at that and still checked with Ngai on the progress in obtaining the medical proof a couple of days later.

24.  According to Kwok, he was fully aware of the obligations of the employer in this respect and his duty to report injury at work to the Human Resources Department.  The safety manual provides that.  The minutes of the internal meetings of the company in 2005 also recorded the imperative that injury at work had to be reported within specific time period.  Injured employees applying for leave had to provide specific details and apply in a specific manner.  Kwok was present in those meetings.

25.  In court, Kwok was able to explain in detail his understanding of the protocol to follow in case of employee being injured at work.  He also understands the significance of following the protocol both in terms of compliance with the law and the company’s insurance policy for employees’ compensation.  Kwok had all the reasons to see that the protocol was followed.

26.  If what Ngai said was true, Kwok would have received the report about the injury at work, seen the attendance note issued by Ngai’s doctor and also reacted by giving instruction to withhold assignment of heavy duties to Ngai on 30 May 2009; yet somehow chose to withhold all these from the company and to remain silent about a potential employees’ compensation claim.  On balance, it is unlikely that Kwok would somehow keep his company in the dark in the case of Ngai.

27.  On 13 June 2008, Ngai produced to Kwok exactly a copy of the attendance certificate dated 29 May 2008.  Had that certificate already been produced during the earlier conversation with Kwok as alleged, one wonders why Ngai would have produced it again.  What Ngai wrote on the copy of the certificate  was telling:

“現就本人過往腰背酸痛詳述如下：於2004年4月28日便開始覺得腰背有痛楚出現，所以便看醫生，間歇便要取藥食後，便減去痛楚及好轉。但至07年尾開始後，可能工作比較粗重，令腰背勞損加劇，到08年5月更甚，醫生提議盡量少做粗重工作，及6月17日轉往專科醫生跟進。”

28.  He referred to the onset of waist and back pain on 28 April 2008.  Since then he had to consult the doctor.  With medication, the condition had improved.  However the pain recurred towards the end of 2007 probably because of the aggravation due to the heavy duties at work.  The condition turned serious in May 2008.  The doctor therefore advised him to minimise the workload of heavy duties.

29.  What Ngai wrote was essentially in line with what Kwok said Ngai told him earlier on.  That, in his own words, was his account of the development of his condition in detail to the company.  Yet he still made no mention or hint of any suspected sprain injury at work at all.

30.  In the same note, Ngai also reported that appointment had been made to consult the orthopaedic specialist, later known to be Dr Poon, on 17 June 2008.  Zung Fu did receive a medical note from Dr Poon on 25 June 2008.  The doctor noted that Ngai had chronic back pain which had become more severe in the recent 2 years.  X-ray showed significant degeneration of the whole lumbar spine.  On this basis, Ngai was recommended to avoid heavy duty.  Again, no record or hint of any injury at work or suspected sprain of the back of Ngai is found.  Dr Poon maintained his observation in his subsequent medical note dated 16 September 2008.

31.  In the subsequent report of Dr Lee Wai Clinic dated 18 July 2009, it was recorded that Ngai in fact attended the clinic for low back pain on 8 April 2004, 13 May 2004, 29 May 2004, August 2004, 4 April 2005, 27 January 2007, 20 May 2008, 29 May 2008 and 9 June 2008.  There was said to be no record of complaint about back injury at work.

32.  Attempt was made on behalf of Ngai to cast doubt on the accuracy of the above report from Dr Lee Wai Clinic on the basis that it was not compiled by Dr Lee but another doctor of the clinic on his behalf.  Presumably, the report had to be compiled on the basis of the records.  If there were indeed concern about its accuracy, step should and would have been taken to seek clarification from the clinic since the date of that report.  No such step has ever been suggested.

33.  The record of the intake interview with Ngai contained in the Functional Capacity Evaluation Report in November 2008 refers to the on and off back and neck pain of Ngai for 1 to 2 years.  The pain was relieved with medication; but there was recent increase in low back pain in June 2008.  Again, no known injury was reported.

34.  According to the medical report of the Kwun Tong Occupational Health Clinic dated 13 July 2009, Ngai first attended the clinic on 8 December 2008, presenting with increased low back pain for about 3 months.  The clinic recorded Ngai’s revelation that the low back pain was insidious onset and there was no history of injury.  It was not until 29 June 2009 when Ngai first complained about back sprain injury at work on 29 May 2008.  By then, Ngai’s employment had already been terminated and claim already been lodged with the Labour Department.

35.  Indeed, in the sick leave certificates issued since May 2009 by Dr Poon’s clinic, references were made to sprained back or back injury.  In his medical note dated 21 July 2009, Dr Poon even recorded multiple sprain injuries sustained at work.  The sudden suggestion of multiple sprain injuries sustained at work at that juncture is rather unexpected and must be considered with caution, particularly when it came about after Ngai’s employment had been terminated and his complaint been lodged with the Labour Department.

36.  Likewise, other medical reports apparently recording Ngai’s complaint about injury at work (e.g., that from the orthopaedics and traumatology department of the Queen Mary Hospital) came about during the referral or consultation after Ngai’s employment had been terminated and he had complained to the Labour Department.  The same can be said about Forms 7 and 9.

37.  Ngai claimed that he was not aware of the need to report injury at work.  But he has been educated up to Form 5 level; and worked for 18 years at Zung Fu prior to the alleged incident.  According to Cheung, and there is no dispute, that each employee, including Ngai, has been provided with a copy of the safety manual mentioned above.  Amongst other things, the manual contains numerous provisions stipulating that accident or injury at work must be reported to the superior, irrespective of degree.  The manual also draws the employees’ attention to the Employees’ Compensation Ordinance.  Copy of the manual was produced.  What Ngai should have known, and hence his explanation, should really be considered against this background.

38.  Whenever Ngai applied for leave since then, he had to fill in a standard application form to the company.  The form requires the employee to specify from the multiple choices of nature of leave being applied for.  The choices of “sick leave病假” and “work injury leave工傷假” are printed next to each other in English and Chinese.  Ngai invariably chose the former instead of the latter.

39.  Ngai also explained that he did not think of what happened to him as injury because no bleeding or collapse was involved; and no admission to the accident and emergency department of the hospital was entailed on the day in question.  This is difficult to accept as a matter of common sense in the case of Ngai.

40.  Miss Leung submitted that even assuming that her client had not made complaint about injury at work, that does not necessarily mean that the alleged injury at work did not in fact happen.  She submitted that an inference could nevertheless be drawn from the evidence that Ngai suffered from injury at work on 29 May 2008 as alleged.

41.  In court, Ngai was adamant that his back was pain free after each medical consultation and medication in the past.  He did not have to take sick leave in the past.  When he consulted the doctor on 20 May 2008, the doctor gave him 3 days’ medication.  He had recovered since then and was fully mobile after taking the medication.  He claimed to be able to play ball games immediately prior to his alleged injury on 29 May 2008.  Therefore, Miss Leung submitted, an inference can be drawn that the pain experienced by Ngai at work on 29 May 2009 must have been caused or contributed to by injury.

42.  Miss Leung referred to a number of cases in support.  The one that is particularly relevant in the circumstances of this case is Oates v Earl Fitzwilliam’s Collieries Co [1939] 2 All ER 498.  In that case, a workman suffering from heart disease became seriously ill while at his work and died shortly afterwards.  The trial judge apparently accepted the medical evidence that the workman died of sudden rupture of the aortic cusp, which took place some 3 weeks before the death.  The trial judge refused to make an award of workmen’s compensation on the ground that the widow of the workman had failed to establish that injury had been caused to the workman by an accident arising in and out of the course of the employment.  The widow appealed.

43.  The Court of Appeal (at 502) reiterated the principle that the question is not whether a specific injury arising from some specific act could be shown to have taken place. Instead:

“…… a physiological injury or change occurring in the course of a man’s employment by reason of the work in which he is engaged at or about that moment is an injury by accident arising out of his employment, and this is so even though the injury or change was occasioned partly, or even mainly, by the progress or development of an existing disease if the work he is doing at or about the moment of the occurrence of the physiological injury or change contributes in any material degree to its occurrence. Moreover, this is none the less true though there may be no evidence of any strain or similar cause other than that arising out of the man’s ordinary work……”

44.  In the present case, the medication might well be effective in curbing Ngai’s pain every time in the past.  But it is the recurrence of the pain that caused him to see the doctor that matters.  The available medical evidence and Ngai’s own experience tell that pain did recur without any trauma during work or otherwise.  In view of his medical history, the significant degeneration of his whole spine and the most recent recurrence of back pain, recurrence of pain as a result of the progress of his pre-existing condition in recent years could not be ignored. Recurrence of pain in these circumstances did not per se amount to the physiological change or injury.

45.  According to the medical report dated 13 July 2009 of the Kwun Tong Occupational Health Clinic, the exact cause of Ngai’s low back condition could not be delineated due to the long latency between his presentation and the alleged injury.  There is no direct suggestion or medical expert evidence, except for the record of Ngai’s own complaint since 2009, that the pain on 29 May 2008 would not have come about in the ordinary course of work without the cause of or material contribution by the alleged sprain injury.

46.  I prefer the evidence adduced on behalf of Zung Fu.  The circumstances, I find, were that Ngai did not himself feel that the pain on 29 May 2008 was associated with any sprain injury.  Attributing the pain to actual sprain injury, I find, is more likely than not some belief he acquired after the employment relationship between the parties had been terminated.

47.  The objective evidence does not show that actual sprain injury at work on 29 May 2008 as alleged was more probable than mere recurrence of pain, as it could have happened, in the course of his work due to the progress of his back condition.  On the balance of probabilities, Ngai has failed to discharge his burden of proof.

Quantum

48.  For the record, the quantum is agreed as follows:

49.  The parties agree that Ngai has received from Zung Fu a sum of HK$5,884.80.  But it is confirmed that the sum was not advance payment; and therefore the same need not be deducted from the above total amount of compensation.

Order

50.  The Application is dismissed and, following that event, with costs, including any costs reserved, to Zung Fu.  Costs shall be taxed, if not agreed, with certificate for counsel.  Ngai’s own costs shall be taxed subject to legal aid regulations. The costs order shall remain nisi for 14 days; and shall become absolute in the absence of application to vary.