In a recent employees' compensation appeal case of Wan Jingyi v. Hoo Chun Wing T/A Kai Chun Good Well & Ors. (CACV 105/2016), Hong Kong's Court of Appeal has unanimously upheld the lower Court's decision to dismiss an applicant's employees' compensation claim. The Court of Appeal's decision reinforces the legal principle that in employees' compensation cases, an applicant bears the burden of proof to show that an accident had happened in the course of, and arising out of his/her employment.

Facts of the Case

The applicant was a construction worker. It is the applicant's case that he sprained and injured his back while pulling up a large piece of canvas from a scaffolding in November 2012. At the time, he was working at a construction site at MegaBox, a shopping mall in Hong Kong.

At trial, the judge found the applicant to be unreliable and not credible. As the applicant was not able to discharge his burden of proof, his employees' compensation claim was dismissed. A number of special features were noted in this case:

  1. Inconsistencies in versions of events: The claimant's case as to when the accident happened kept changing. Inconsistencies were noted in his report to the Labour Department, his pleadings in the employees' compensation claim, and his description of doctors' treatment.
  2. No witness to the accident: According to several witnesses who worked with the applicant on the day of the alleged accident, the claimant did not complain of any accident or injury. The applicant continued to work normally after the alleged accident.
  3. There was a delay of about six months before he first reported to his employer that he had an accident. There was also a substantial delay before the applicant sought any medical treatment.

The Appeal

The appeal is effectively an appeal seeking to overturn findings of facts which are based largely on the credibility of the witnesses. The Court reiterated that the Court of Appeal would not intervene unless the trial judge's conclusion was "plainly wrong".

The applicant's main ground of appeal was that the trial judge had failed to sufficiently consider the expert medical opinion of his own orthopaedic expert, Dr Wong See Hoi, who opined that the applicant's conditions were accident-based rather than caused by degeneration. In answering this, the Court of Appeal pointed out the lower Court did not identify, nor was it the lower Court's duty to find a definite cause for the condition. All that the lower Court held was that the applicant failed to prove it was caused by an accident at work at MegaBox as he alleged. Based on the findings of the lower Court, the condition could have been caused by some other trauma, for which the respondents were not shown to be responsible for. The Court of Appeal did not find any reason to interfere with the findings of the fact of the trial judge or to question the judge's acceptance of the credibility the respondents' witnesses.

Takeaway

While each case depends on its own evidence and merits, the present case does highlight the importance of litigation case preparation. In the present case, with a view to contest and defend the claim, detailed medical notes and records from both Hong Kong and mainland China have been obtained in order to enable the orthopaedic experts to consider and comment. Detailed witness statements have also been obtained at an early stage from the co-workers, who were working together with the applicant on the alleged day of accident. Such evidence helped to build a solid foundation for the defence of the claim.

The case is also a good reminder that the issue of whether the injury was caused by the alleged accident is ultimately a matter for the Court to decide, and not the medical experts.

Originally published 9 March 2017

Visit us at www.mayerbrownjsm.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2016. The Mayer Brown Practices. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.