DCEC374/2003 SINGH BALWINDER v. SINO PHIL ENGINEERING SERVICES LTD AND ANOTHER - LawHero
DCEC374/2003
區域法院（僱員補償）Deputy District Judge S. T. Poon20/7/2007
DCEC374/2003
由此
A A
B DCEC 374/2003 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
EMPLOYEES’ COMPENSATION CASE NO.374 OF 2003
E E
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F BETWEEN F
G SINGH BALWINDER Applicant G
H H
and
I I
SINO PHIL ENGINEERING SERVICES 1st Respondent
J J
LIMITED
K K
L
HYUNDAI ENGINEERING & 2nd Respondent L
CONSTRUCTION COMPANY LIMITED
M M
N N
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O O
Coram : Deputy District Judge S. T. Poon in Court
P P
Date of Hearing : 17-20/4/2007, 23-25/4/2007 and 18/5/2007
Q Date of Delivery of Judgment : 20/7/2007 Q
R R
S JUDGMENT S
T T
U U
V V
由此
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A A
B B
C C
Introduction
D D
1. The Applicant was a construction site worker. He was
E E
st
allegedly injured in the course of his employment with the 1
F Respondent when he was working in the construction site of which the F
2nd Respondent was the main contractor.
G G
H 2. The 1st Respondent has no dispute that it employed the H
Applicant at the material time. It says however that the alleged
I I
accident has never happened and alternatively, that the injuries
J suffered by the Applicant was not serious. J
K K
nd
3. Apart from relying also on the above defences, the 2
L L
Respondent says further that the Applicant was not an employee of the
M
1st Respondent. M
N N
4. The 1st Respondent was acting in person at trial represented
O by its director Mr. De Souza (“DS”). At the material times DS and his O
wife controlled a number of companies including, inter alia, the 1st
P P
Respondent, Geotechnical Engineering Services Ltd (“Geotechnical”)
Q and Jaytey Engineering Ltd (“Jaytey”). The 1st Respondent’s name Q
was used for signing the sub-contracting agreement with the 2nd
R R
Respondent for the subject project. Under the agreement the 1 st
S Respondent was to supply manual labours to work at the Tung Chung S
MTR Station construction site (“the site”).
T T
U U
V V
由此
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A A
B 5. The 2nd Respondent says the Applicant was probably the B
employee of Geotechnical or Jaytey or even DS himself rather than the
C C
1st Respondent.
D D
6. According to the Applicant, he worked as a general
E E
labourer at the site on 15/5/2001. When he was working inside a
F multi-storey residential building which was then under construction F
within the site, a piece of concrete fell from a hole on the ceiling and hit
G G
his left hand that caused his left ring finger seriously injured.
H H
7. Under the Certificate of Review of Assessment issued on
I I
21/5/2003 (“the Form 9”), the injury was described as “left hand injury
J resulting in left ring finger pain, weakness and stiffness”. The loss of J
earning capacity permanently caused by the injury (“loss of earning
K K
capacity”) was assessed as 2.5%. The periods of absence from duty
L L
necessary as a result of the injury stated on the Form 9 were from
M
15/5/2001 to 6/5/2003. The Applicant appealed under Section 18 of M
the Employees’ Compensation Ordinance Cap. 282 (“the Ordinance”),
N N
asking this court to reassess his loss of earning capacity.
O O
Evidence
P P
Q The accident Q
R R
8. The Applicant gave evidence that on the day in question he
S worked on the 30th floor of a building at the site, his duty was to convey S
the construction debris and rubbish there to the ground level. There
T T
was another worker called “Ah Chung” working together with him. At
U U
V V
由此
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A A
B around 4:00 p.m., a piece of concrete suddenly fell from above and B
struck his left hand. He told the Nepalese foreman called ‘Ram’ or
C C
‘Rai’ about the accident. This Nepalese foreman went with him to the
D site office and put cotton and bandage on his finger in the presence of a D
Korean site manager whose name he is not sure. He was then told to go
E E
to the hospital and he went to the Prince of Wales Hospital by bus.
F F
9. The Applicant was cross-examined extensively on the
G G
details of how the alleged accident happened. He was asked about, for
H example, the size of the concrete, his exact position when he was hit, H
the time when he first noticed the concrete, and what part of his body
I I
was being hit. Suffice it to say is that, although there are discrepancies
J in some area (e.g. the size of the concrete) between what was stated in J
the Applicant’s witness statements and his oral testimonies in
K K
describing the accident, the discrepancies are not so significant that can
L L
render his evidence unreliable in itself. Given the fact that the alleged
M
accident happened in split seconds, the difficulty in giving details is M
understandable. As regard how the accident was happened, the
N N
Applicant’s evidence is consistent on the whole.
O O
10. There is an issue as to whether the Applicant had attended
P P
the site at all on the relevant day. DS relied on some hand written
Q records prepared by the 1st Respondent’s foreman to suggest that the Q
Applicant was on sick leave that day. However, these records are
R R
contradicted by the computer records produced by the 2nd Respondent
S showing that the Applicant had entered the site in the morning and left S
early at around 4:37 p.m. in the afternoon. This is consistent with the
T T
U U
V V
由此
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A A
B Applicant’s evidence that he was told to go to the hospital at around B
that time.
C C
D 11. For these 2 sets of records, I prefer the records produced by D
the 2nd Respondent as the accurate ones. As submitted by Mr. Brettell,
E E
st
solicitor representing the Applicant, the 1 Respondent’s records are
F incomplete and could not have been used by the 1st Respondent as the F
basis of calculation of the Applicant’s working days when submitting
G G
nd
the charges to the 2 Respondent. On the other hand, the records of the
H 2nd Respondent were kept under a managed system and there is no H
reason to doubt their accuracy.
I I
J 12. It can be seen from the Attendance Record of the A & E J
Department of Prince of Wales Hospital that the Applicant arrived at
K K
the hospital at 6:29 p.m. on the alleged date of injury. This is, in my
L L
view, to a large extent consistent with the account given by the
M
Applicant. M
N N
13. There was a safety supervisor in the name of Rai Ram
O Kumar working at the Site (“Rai”). DS in his evidence suggested that O
this person had not begun working at the Site on the day in question.
P P
The 2nd Respondent also put in documents from the Inland Revenue
Q Department to show that he had only started working for them after the Q
accident. However, neither of the Respondents asked Rai to testify or
R R
make any witness statements to the court to prove the same. On the
S other hand, Mr. Szeto Wing Hing (“Szeto”), an employee of the 2 nd S
Respondent, testified in court that Rai had started working at the Site in
T T
the end of 2000 before the date of the alleged accident.
U U
V V
由此
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A A
B B
14. DS in his affirmation filed on 28/9/2004 stated that the
C C
Applicant told him that on the day in question the Applicant had
D reported the accident to Rai. He then contacted Rai by telephone and D
he was told that the reports of the accident were handed to the safety
E E
nd
department of the 2 Respondent. DS said in court that he had asked
F Rai about the accident and Rai was aware of it. F
G G
15. I appreciate the fact that Rai or Ram is a name very
H common in Rai’s origin. However, the fact that DS made enquiry to H
Rai reflects that DS understood Rai as the one to whom the Applicant
I I
had reported about the accident on the day in question. Further, if the
J Applicant had not told Rai about the accident on that day, DS would J
have learnt about this from him and would therefore not have conceded
K K
liability in the first place. I find as a fact that the Applicant did report to
L L
Rai of the accident on 15/5/2001.
M M
16. I have no hesitation in concluding that the Applicant did
N N
work at the Site on the day in question.
O O
17. There is also an issue as to whether the alleged accident
P P
happened as described by the Applicant or at all.
Q Q
18. It is submitted by the Respondents that there were no
R R
written records of the accident and it was not made known to the 2 nd
S Respondent about the accident until a very late stage. It is also S
submitted that the evidence given by the Applicant is not reliable and
T T
his account of how the accident happened is improbable.
U U
V V
由此
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A A
B B
19. DS and Mr. Lui Ting Kwan (“Lui”), a foreman of the site,
C C
gave evidence that there could not be holes on the ceilings of the
D buildings under construction for debris or concretes to fall through. On D
the other hand, a chute was built outside and attached to the building
E E
for the purpose of transferring debris to the ground level. According to
F Lui, the construction work of the block where the Applicant was F
working (Block 6) had been finished and there should not be any
G G
“mivan holes” existed. However, both of them could not give direct
H evidence as to whether there was actually a hole as described on the H
ceiling.
I I
J 20. The Applicant said not every floor of the building has J
access to the chute. Workers had to transfer the debris to the floors
K K
having access to the chute first before using it to dispose of the debris.
L L
M
21. In the “Minutes of the Site Safety Committee” produced by M
the 2nd Respondent, it was recorded that “many floor openings were
N N
found in the floor slabs” and the relevant contractor was warned to
O rectify floor opening violation at upper level of Tower 6 in the material O
times.
P P
Q 22. Szeto agreed that the “floor openings” mentioned in the Q
minutes should be something different from the “mivan holes”.
R R
S 23. Looking at the Attendance Record of the A & E S
Department of Prince of Wales Hospital again, the medical findings of
T T
the treating doctor on the Applicant were: “(1) Tender over lower back
U U
V V
由此
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A A
B and left shoulder, (2) Tender over left middle finger, (3) Tender B
swelling and bruise around tip of left ring finger with slight decrease
C C
ring finger movement and (4) X-ray of left hand was normal.” It was
D also recorded that the Applicant was injured by a “falling stone”. D
E E
24. In reliance on the above medical findings, it is
F unquestionable that the Applicant did suffer from injuries on his left F
ring finger on the very day. With my findings that the Applicant did
G G
work at the site and tell Rai about an accident, I have no difficulty in
H concluding that the Applicant had probably injured his finger when he H
was working at the site.
I I
J 25. The suggestion that there was a hole on the ceiling allowing J
a piece of concrete to fall through is in itself unusual. However, given
K K
the fact that the Applicant was injured while he was working at the site,
L L
it would be unlikely that he would lie about the existence of the hole. It
M
would be apparent to him that his employer or whoever liable to M
compensate him, who was well aware of the conditions of the buildings,
N N
would raise serious queries about the existence of the hole and hence
O the cause of his injuries. If there was no hole on the ceiling, he could O
have come up with another story conveniently without referring to any
P P
such hole.
Q Q
26. Furthermore, the contemporaneous account given by the
R R
Applicant to the Hospital that he was “injured by a falling stone” is also
S consistent with his evidence. S
T T
U U
V V
由此
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A A
B 27. Mr. Sadhwani, counsel for the 2nd Respondent, helpfully B
summarized in his final submission some aspects of the Applicant’s
C C
evidence that were said to have rendered his version of facts
D unbelievable. Mr. Sadhwani’s complaints about the Applicant’s D
evidence include: the inconsistencies as to the details of how the
E E
accident happened, the fact that DS had written a letter stating that the
F Applicant was taken by a white car to the hospital, the Applicant F
described his finger as “broken” in a letter which did not accord with
G G
the medical evidence, the content of a written statement of the
H Applicant recorded by an officer of the insurance company (“the Toplis H
Statement”), some minor discrepancies in relation to the medical notes
I I
and sick leave certificates describing the Applicant’s injuries and the
J amendment of the “notification of accident form” to the Labour J
Department of the name of the employer.
K K
L L
28. The Applicant is certainly not a witness giving perfect
M
evidence. However, given the fact that the accident happened in 2001, M
he should not be expected to give a perfect account of exactly how the
N N
accident happened, particularly as to details like the size of the falling
O concrete and his exact position when he was hit. After the accident, the O
Applicant had to report the matter throughout the years to various
P P
people representing different interests, for instance, Rai, the Labour
Q Department, the officer(s) of the insurance company, numerous Q
medical officers or experts, legal practitioners, and even DS. Given the
R R
background of the Applicant, it is not to be surprised that discrepancies
S might have happened due to misunderstandings. Furthermore, people S
could have made mistakes in receiving and recording information.
T T
U U
V V
由此
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A A
B 29. My view is that, as analysed in paragraphs 8 to 25 B
hereinabove, the Applicant had probably suffered injuries on his left
C C
hand when he was at the site on the day in question, and it is
D improbable that he would make up a story by inventing a hole on the D
ceiling, the imperfection of the Applicant’s evidence could not be
E E
sufficient to render it unbelievable.
F F
30. Bearing in mind that there is no direct evidence to
G G
contradict the Applicant’s evidence as to how the accident happened, I
H accept the version of facts in relation thereto and conclude that he was H
injured at the site in the course and arising out of his employment on
I I
19/5/2001.
J J
31. Mr. Sadhwani also suggested that the injury to the
K K
Applicant’s left ring finger might have been a pre-existing one. With
L L
respect, I would dismiss this suggestion as a mere speculation for
M
having no concrete evidence in support. M
N N
32. It is also improbable that the fracture of the left ring finger
O happened after the accident in view of the expert opinion of Dr. Jack O
Wong that gained also the support of the joint medical expert Dr.
P P
Arthur Chiang.
Q Q
The employer
R R
S 33. It is common ground that there was a subcontracting S
agreement between the 1st and 2nd Respondents for supply of manual
T T
labour for the project at the site. There was no other contract between
U U
V V
由此
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A A
B any other DS’s companies including DS himself and the 2nd B
Respondent in respect of the site.
C C
D 34. DS himself admitted that the 1st Respondent was the D
employer of the Applicant on the date of the accident. The 2nd
E E
Respondent issued a working permit to the Applicant to work at the site
F naming the 1st Respondent as the contractor employing the Applicant. F
G G
35. It is submitted by Mr. Sadhwani that all along the Applicant
H treated DS personally as his employer and DS had not been named as a H
director of the 1st Respondent until after the accident. He submitted
I I
st
also that the 1 Respondent was not operational in that it had no
J insurance and MPF scheme for the employees. On the other hand, J
Geotechnical and Jaytey were companies in operation having
K K
insurance policy for their employees.
L L
M
36. Furthermore, the 1st Respondent’s name was deleted and M
replaced by that of Geotechnical on the “Notification of Accident”
N N
submitted to the Labour Department. There was also a document titled
O “Casual Worker Employment Contract” signed between Geotechnical O
and the Applicant. In a form titled “Notice by Employer of the Death
P P
of an Employee or of an Accident to an Employee resulting in Death or
Q Incapacity” submitted to the Labour Department in September 2001 Q
and signed by Geotechnical, the name of the insurance company of
R R
Geotechnical (“Ming An Insurance Company Hong Kong Limited”)
S was provided as the insurer in relation to the accident. There are 3 S
copies of cheques made out to the Applicant by Geotechnical for
T T
periodical payments in August 2002 and April 2003.
U U
V V
由此
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A A
B B
37. As regard Jaytey, according to the Applicant’s tax return,
C C
Jaytey was his employer at least until 31/3/2001. In a letter dated
D 15/3/2002 from Jaytey addressed to “To Whom It May Concern”, it D
was certified that the Applicant was working with Jaytey from
E E
1/4/2001 until the date of the letter. There was another similar letter
F signed by a different person produced by the Applicant at trial. F
Between 18/7/2001 and 20/11/2001, 3 cheques of Jaytey were issued to
G G
the Applicant.
H H
38. Mr. Sadhwani submitted further that even if this court takes
I I
st
the view that the Applicant was working for the 1 Respondent at the
J time, as it was not operational, the possibility arises that the Applicant J
was lent or let on hire by either Geotechnical and/or Jaytey and/or DS
K K
st
and the 1 Respondent would not be liable as it would then not be an
L L
employer within the definition of the Ordinance.
M M
39. Mr. Sadhwani’s submissions are on the face of it attractive.
N N
I have also without doubt that the Applicant all along did not care about
O the identity of his employer provided that he has works to do and wages O
to earn. Albeit very well framed, Mr. Sadhwani’s arguments could not
P P
really answer the very question that none of the possible employers
Q except the 1st Respondent had the right to provide workers to the site. Q
They were simply not parties to the subcontract with the 2 nd
R R
Respondent.
S S
40. It is beyond dispute that DS had the control of the 3 relevant
T T
companies. If the 1st Respondent was chosen to be the party to the
U U
V V
由此
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A A
B subcontract, there was no reason why DS would take the trouble to B
employ labourers by the other companies. If insurance or MPF were
C C
issues, DS could simply use either Geotechnical or Jaytey to sign the
D subcontract instead of the 1st Respondent. D
E E
41. My view is that, the arrangement between the Applicant
F and DS and his group of companies was that the Applicant would be F
employed by the company or person who had subcontracted a
G G
particular project to work at the site of that project. The fact that the
H Applicant was employed by one of the companies at a particular time H
for a particular project does not bar him from being employed by
I I
another company at another time for another project.
J J
42. For the confusion that the name of Geotechnical was given
K K
as the employer to the Labour Department, I accept the evidence of DS
L L
that it was a mistake but I believe that the mistake was also a deliberate
M
one caused by the fact that there was no insurance policy covering the M
1st Respondent.
N N
O 43. I accept the evidence of the Applicant that the letters O
certifying his employment with Jaytey were for the purpose of visa
P P
application and they can have no bearing on who was the employer of
Q the Applicant at the material times for his work at the site. Q
R R
44. Since all the 3 companies were controlled and beneficially
S owned by DS and/or his wife, the fact that part of the periodical S
payments were settled by a particular company does not help much in
T T
determining the true employer.
U U
V V
由此
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A A
B B
45. There is simply no evidence to prove that the Applicant was
C C
hired or let to the 1st Respondent as suggested by Mr. Sadhwani. I can
D see no reason why DS should have taken such trouble. D
E E
46. In the premises, I find that the Applicant was employed by
F the 1st Respondent at the time he was injured and the 1st Respondent F
and the 2nd Respondent were liable to pay him compensation under and
G G
in accordance with the Ordinance.
H H
Quantum
I I
J 47. The Applicant claims under Section 9, 10 and 10A of the J
Ordinance. It is agreed that the Applicant has received a total sum of
K K
HK$212,780.00 as periodical payments.
L L
M
Monthly earnings M
N N
48. It is not in dispute that the Applicant earned a basic wage of
O HK$400 per day. As for the subject project, he commenced working O
from 2/5/2001 and stopped since after the accident. From what it
P P
shows on the 1st Respondent’s wage roll, the Applicant received the
Q amount of HK$6,437.50 for the 12 days’ work including one overtime Q
day.
R R
S 49. The said wage roll also shows that 23 out of the 33 workers S
(including the Applicant) worked more than 20 days in the month of
T T
May 2001. Excluding the overtime days, the average number of
U U
V V
由此
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A A
B working days for these 23 workers is approximately 24. The average B
number of overtime days is approximately 2.5. Adopting these figures
C C
for calculation of the Applicant’s monthly earnings, taking HK$600 as
D the overtime wage per day, the amount would be HK$400 x 24 + D
HK$600 x 2.5 = HK$11,000.00.
E E
F Loss of earning capacity F
G G
50. The Applicant suffered blunt trauma injury to the end
H phalange of his left ring finger. He received conservative treatment at H
the A & E Department. On 22/6/2001 a malunited mallet fracture of
I I
the finger was shown on scan. An operation to excise dorsal
J osteophytes was performed on 5/8/2002. The X-ray on 11/11/2002 J
showed mild deformity of end phalanx and mild to moderate
K K
degenerative change at DIP joint.
L L
M
51. The Applicant still complains of pain on the left index M
finger upon exertion. It is his evidence that he could no longer perform
N N
the kind of heavy works that was required under his original
O employment. O
P P
52. Dr. Arthur Chiang opined that the Applicant should be able
Q to return to his former employment whilst Dr. Jack Wong had the view Q
that he will not be able to perform as a construction site worker in full
R R
capacity. Dr. Wong agreed that the limitation of the Applicant’s ability
S to perform heavy work is due to his pain suffered at the left index S
finger and this is very subjective.
T T
U U
V V
由此
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A A
B 53. By way of subpoena, DS called one Mr. Luk Koon Tin B
(“Luk”) who was the last employer of the Applicant carrying on a
C C
recycling business. Luk gave an account of the nature of work that the
D Applicant was required to perform in his company. According to Luk, D
the duties of the Applicant had no difference from the other workers
E E
except that he was not required to operate the machines. From time to
F time the Applicant was required to lift heavy objects and to pull heavy F
cables. He noticed no problem of the Applicant performing this kind of
G G
heavy duties.
H H
54. Luk’s evidence was different from that of the Applicant.
I I
However, I can see no reason to doubt Luk’s evidence as he has no
J interest whatsoever in the present litigation. Although there was J
another employees’ compensation claim against Luk’s company by the
K K
Applicant, the liability was covered by insurance and there was no
L L
purpose to serve for him to give false evidence in this court.
M
Furthermore, I was impressed by the prompt and straightforward way M
of Luk in answering questions that I find him a very credible witness.
N N
O 55. Whether there exists pain is a very subjective matter and it O
depends much on the evidence of the Applicant. In view of the
P P
evidence of Luk, I doubt very much that the Applicant could no longer
Q be able to perform heavy lifting duties as alleged. I prefer the evidence Q
of Dr. Chiang that the Applicant has no difficulties in resuming to work
R R
as a construction worker.
S S
T T
U U
V V
由此
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A A
B 56. In this light, I find the formula under the “Hong Kong Paper B
Mills” formula for calculation of loss of earning capacity not
C C
applicable.
D D
57. In the circumstances, considering the opinions of Dr.
E E
Chiang, Dr. Wong and the First Schedule of the Ordinance and
F regarding the Applicant’s injury as arthrodesis or fusion of the finger F
joint, I would adopt the assessment of the Assessment Board of 2.5%
G G
as a fair figure for the Applicant’s loss of earning capacity. Hence, the
H appeal of the Applicant under Section 18 of the Ordinance is H
dismissed.
I I
J Compensations J
K K
58. Compensation under Section 9 would be HK$11,100 x 96 x
L L
2.5% = HK$26,640.00.
M M
59. For compensation under Section 10, in light of the deeming
N N
provision under Section 10(2) of the Ordinance and the opinions given
O by Dr. Chaing and Dr. Wong, the certified sick leave by the O
Assessment Board cannot be said to be unreasonable. The amount
P P
awarded would therefore be HK$11,100/30 x 617 x 80% =
Q HK$182,632.00. Q
R R
60. I accept that the medical expenses of the Applicant was
S HK$2,645.00 in total and I award the amount accordingly under S
Section 10A.
T T
U U
V V
由此
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A A
B 61. According to Section 10(4) of the Ordinance, no periodical B
or lump sum payments paid or payable under Section 10 shall be
C C
deducted from any amount of compensation payable under sections 6,
D 7, 8 or 9. D
E E
62. However, as the periodical payments have already
F exceeded the total amount awarded under Section 10 and 10A, the total F
sum to be awarded by this court should only be HK$26,640.00.
G G
H 63. In the premises, I order that judgment be entered against the H
Respondent in favour of the Applicant in the amount of HK$26,640.00
I I
and interest thereon at half judgment rate from 15/5/2001 to the date of
J handing down of this Judgment and thereafter at judgment rate until J
payment.
K K
L L
64. I make a cost order nisi as follows :-
M M
(i) costs of the Application of the Applicant be borne by the
N N
1st and 2nd Respondents on common fund basis, to be taxed
O if not agreed; O
(ii) costs of the 1st and 2nd Respondents in respect of the
P P
Applicant’s appeal under Section 18 of the Ordinance be
Q borne by the Applicant on party and party basis to be taxed Q
if not agreed;
R R
(iii) no order as to cost between the 1st and 2nd Respondents.
S (iv) counsel’s participation is certified. S
(v) Applicant’s own costs be taxed in accordance with legal
T T
aid regulations
U U
V V
由此
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A A
B B
This order nisi shall be absolute upon expiry of 14 days
C C
from the date of handing down of the Judgment.
D D
E E
F F
(S. T. Poon)
G G
Deputy District Judge
H H
I I
Mr. David N. Brettell of Messrs Munros for the Applicant.
J 1st Respondent in person, represented by Mr. De Souza Tome Jose Carlos J
Elrino.
K K
nd
Mr. Kamlesh Sadhwani instructed by Messrs. Krishnan & Tsang for the 2
L L
Respondent.
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
SINGH BALWINDER v. SINO PHIL ENGINEERING SERVICES LTD AND ANOTHER
由此
A A
B DCEC 374/2003 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
EMPLOYEES’ COMPENSATION CASE NO.374 OF 2003
E E
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F BETWEEN F
G SINGH BALWINDER Applicant G
H H
and
I I
SINO PHIL ENGINEERING SERVICES 1st Respondent
J J
LIMITED
K K
L
HYUNDAI ENGINEERING & 2nd Respondent L
CONSTRUCTION COMPANY LIMITED
M M
N N
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O O
Coram : Deputy District Judge S. T. Poon in Court
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Date of Hearing : 17-20/4/2007, 23-25/4/2007 and 18/5/2007
Q Date of Delivery of Judgment : 20/7/2007 Q
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S JUDGMENT S
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由此
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A A
B B
C C
Introduction
D D
1. The Applicant was a construction site worker. He was
E E
st
allegedly injured in the course of his employment with the 1
F Respondent when he was working in the construction site of which the F
2nd Respondent was the main contractor.
G G
H 2. The 1st Respondent has no dispute that it employed the H
Applicant at the material time. It says however that the alleged
I I
accident has never happened and alternatively, that the injuries
J suffered by the Applicant was not serious. J
K K
nd
3. Apart from relying also on the above defences, the 2
L L
Respondent says further that the Applicant was not an employee of the
M
1st Respondent. M
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4. The 1st Respondent was acting in person at trial represented
O by its director Mr. De Souza (“DS”). At the material times DS and his O
wife controlled a number of companies including, inter alia, the 1st
P P
Respondent, Geotechnical Engineering Services Ltd (“Geotechnical”)
Q and Jaytey Engineering Ltd (“Jaytey”). The 1st Respondent’s name Q
was used for signing the sub-contracting agreement with the 2nd
R R
Respondent for the subject project. Under the agreement the 1 st
S Respondent was to supply manual labours to work at the Tung Chung S
MTR Station construction site (“the site”).
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由此
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A A
B 5. The 2nd Respondent says the Applicant was probably the B
employee of Geotechnical or Jaytey or even DS himself rather than the
C C
1st Respondent.
D D
6. According to the Applicant, he worked as a general
E E
labourer at the site on 15/5/2001. When he was working inside a
F multi-storey residential building which was then under construction F
within the site, a piece of concrete fell from a hole on the ceiling and hit
G G
his left hand that caused his left ring finger seriously injured.
H H
7. Under the Certificate of Review of Assessment issued on
I I
21/5/2003 (“the Form 9”), the injury was described as “left hand injury
J resulting in left ring finger pain, weakness and stiffness”. The loss of J
earning capacity permanently caused by the injury (“loss of earning
K K
capacity”) was assessed as 2.5%. The periods of absence from duty
L L
necessary as a result of the injury stated on the Form 9 were from
M
15/5/2001 to 6/5/2003. The Applicant appealed under Section 18 of M
the Employees’ Compensation Ordinance Cap. 282 (“the Ordinance”),
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asking this court to reassess his loss of earning capacity.
O O
Evidence
P P
Q The accident Q
R R
8. The Applicant gave evidence that on the day in question he
S worked on the 30th floor of a building at the site, his duty was to convey S
the construction debris and rubbish there to the ground level. There
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was another worker called “Ah Chung” working together with him. At
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V V
由此
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A A
B around 4:00 p.m., a piece of concrete suddenly fell from above and B
struck his left hand. He told the Nepalese foreman called ‘Ram’ or
C C
‘Rai’ about the accident. This Nepalese foreman went with him to the
D site office and put cotton and bandage on his finger in the presence of a D
Korean site manager whose name he is not sure. He was then told to go
E E
to the hospital and he went to the Prince of Wales Hospital by bus.
F F
9. The Applicant was cross-examined extensively on the
G G
details of how the alleged accident happened. He was asked about, for
H example, the size of the concrete, his exact position when he was hit, H
the time when he first noticed the concrete, and what part of his body
I I
was being hit. Suffice it to say is that, although there are discrepancies
J in some area (e.g. the size of the concrete) between what was stated in J
the Applicant’s witness statements and his oral testimonies in
K K
describing the accident, the discrepancies are not so significant that can
L L
render his evidence unreliable in itself. Given the fact that the alleged
M
accident happened in split seconds, the difficulty in giving details is M
understandable. As regard how the accident was happened, the
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Applicant’s evidence is consistent on the whole.
O O
10. There is an issue as to whether the Applicant had attended
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the site at all on the relevant day. DS relied on some hand written
Q records prepared by the 1st Respondent’s foreman to suggest that the Q
Applicant was on sick leave that day. However, these records are
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contradicted by the computer records produced by the 2nd Respondent
S showing that the Applicant had entered the site in the morning and left S
early at around 4:37 p.m. in the afternoon. This is consistent with the
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由此
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A A
B Applicant’s evidence that he was told to go to the hospital at around B
that time.
C C
D 11. For these 2 sets of records, I prefer the records produced by D
the 2nd Respondent as the accurate ones. As submitted by Mr. Brettell,
E E
st
solicitor representing the Applicant, the 1 Respondent’s records are
F incomplete and could not have been used by the 1st Respondent as the F
basis of calculation of the Applicant’s working days when submitting
G G
nd
the charges to the 2 Respondent. On the other hand, the records of the
H 2nd Respondent were kept under a managed system and there is no H
reason to doubt their accuracy.
I I
J 12. It can be seen from the Attendance Record of the A & E J
Department of Prince of Wales Hospital that the Applicant arrived at
K K
the hospital at 6:29 p.m. on the alleged date of injury. This is, in my
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view, to a large extent consistent with the account given by the
M
Applicant. M
N N
13. There was a safety supervisor in the name of Rai Ram
O Kumar working at the Site (“Rai”). DS in his evidence suggested that O
this person had not begun working at the Site on the day in question.
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The 2nd Respondent also put in documents from the Inland Revenue
Q Department to show that he had only started working for them after the Q
accident. However, neither of the Respondents asked Rai to testify or
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make any witness statements to the court to prove the same. On the
S other hand, Mr. Szeto Wing Hing (“Szeto”), an employee of the 2 nd S
Respondent, testified in court that Rai had started working at the Site in
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the end of 2000 before the date of the alleged accident.
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由此
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A A
B B
14. DS in his affirmation filed on 28/9/2004 stated that the
C C
Applicant told him that on the day in question the Applicant had
D reported the accident to Rai. He then contacted Rai by telephone and D
he was told that the reports of the accident were handed to the safety
E E
nd
department of the 2 Respondent. DS said in court that he had asked
F Rai about the accident and Rai was aware of it. F
G G
15. I appreciate the fact that Rai or Ram is a name very
H common in Rai’s origin. However, the fact that DS made enquiry to H
Rai reflects that DS understood Rai as the one to whom the Applicant
I I
had reported about the accident on the day in question. Further, if the
J Applicant had not told Rai about the accident on that day, DS would J
have learnt about this from him and would therefore not have conceded
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liability in the first place. I find as a fact that the Applicant did report to
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Rai of the accident on 15/5/2001.
M M
16. I have no hesitation in concluding that the Applicant did
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work at the Site on the day in question.
O O
17. There is also an issue as to whether the alleged accident
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happened as described by the Applicant or at all.
Q Q
18. It is submitted by the Respondents that there were no
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written records of the accident and it was not made known to the 2 nd
S Respondent about the accident until a very late stage. It is also S
submitted that the evidence given by the Applicant is not reliable and
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his account of how the accident happened is improbable.
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由此
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A A
B B
19. DS and Mr. Lui Ting Kwan (“Lui”), a foreman of the site,
C C
gave evidence that there could not be holes on the ceilings of the
D buildings under construction for debris or concretes to fall through. On D
the other hand, a chute was built outside and attached to the building
E E
for the purpose of transferring debris to the ground level. According to
F Lui, the construction work of the block where the Applicant was F
working (Block 6) had been finished and there should not be any
G G
“mivan holes” existed. However, both of them could not give direct
H evidence as to whether there was actually a hole as described on the H
ceiling.
I I
J 20. The Applicant said not every floor of the building has J
access to the chute. Workers had to transfer the debris to the floors
K K
having access to the chute first before using it to dispose of the debris.
L L
M
21. In the “Minutes of the Site Safety Committee” produced by M
the 2nd Respondent, it was recorded that “many floor openings were
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found in the floor slabs” and the relevant contractor was warned to
O rectify floor opening violation at upper level of Tower 6 in the material O
times.
P P
Q 22. Szeto agreed that the “floor openings” mentioned in the Q
minutes should be something different from the “mivan holes”.
R R
S 23. Looking at the Attendance Record of the A & E S
Department of Prince of Wales Hospital again, the medical findings of
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the treating doctor on the Applicant were: “(1) Tender over lower back
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由此
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A A
B and left shoulder, (2) Tender over left middle finger, (3) Tender B
swelling and bruise around tip of left ring finger with slight decrease
C C
ring finger movement and (4) X-ray of left hand was normal.” It was
D also recorded that the Applicant was injured by a “falling stone”. D
E E
24. In reliance on the above medical findings, it is
F unquestionable that the Applicant did suffer from injuries on his left F
ring finger on the very day. With my findings that the Applicant did
G G
work at the site and tell Rai about an accident, I have no difficulty in
H concluding that the Applicant had probably injured his finger when he H
was working at the site.
I I
J 25. The suggestion that there was a hole on the ceiling allowing J
a piece of concrete to fall through is in itself unusual. However, given
K K
the fact that the Applicant was injured while he was working at the site,
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it would be unlikely that he would lie about the existence of the hole. It
M
would be apparent to him that his employer or whoever liable to M
compensate him, who was well aware of the conditions of the buildings,
N N
would raise serious queries about the existence of the hole and hence
O the cause of his injuries. If there was no hole on the ceiling, he could O
have come up with another story conveniently without referring to any
P P
such hole.
Q Q
26. Furthermore, the contemporaneous account given by the
R R
Applicant to the Hospital that he was “injured by a falling stone” is also
S consistent with his evidence. S
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U U
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由此
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A A
B 27. Mr. Sadhwani, counsel for the 2nd Respondent, helpfully B
summarized in his final submission some aspects of the Applicant’s
C C
evidence that were said to have rendered his version of facts
D unbelievable. Mr. Sadhwani’s complaints about the Applicant’s D
evidence include: the inconsistencies as to the details of how the
E E
accident happened, the fact that DS had written a letter stating that the
F Applicant was taken by a white car to the hospital, the Applicant F
described his finger as “broken” in a letter which did not accord with
G G
the medical evidence, the content of a written statement of the
H Applicant recorded by an officer of the insurance company (“the Toplis H
Statement”), some minor discrepancies in relation to the medical notes
I I
and sick leave certificates describing the Applicant’s injuries and the
J amendment of the “notification of accident form” to the Labour J
Department of the name of the employer.
K K
L L
28. The Applicant is certainly not a witness giving perfect
M
evidence. However, given the fact that the accident happened in 2001, M
he should not be expected to give a perfect account of exactly how the
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accident happened, particularly as to details like the size of the falling
O concrete and his exact position when he was hit. After the accident, the O
Applicant had to report the matter throughout the years to various
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people representing different interests, for instance, Rai, the Labour
Q Department, the officer(s) of the insurance company, numerous Q
medical officers or experts, legal practitioners, and even DS. Given the
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background of the Applicant, it is not to be surprised that discrepancies
S might have happened due to misunderstandings. Furthermore, people S
could have made mistakes in receiving and recording information.
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由此
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A A
B 29. My view is that, as analysed in paragraphs 8 to 25 B
hereinabove, the Applicant had probably suffered injuries on his left
C C
hand when he was at the site on the day in question, and it is
D improbable that he would make up a story by inventing a hole on the D
ceiling, the imperfection of the Applicant’s evidence could not be
E E
sufficient to render it unbelievable.
F F
30. Bearing in mind that there is no direct evidence to
G G
contradict the Applicant’s evidence as to how the accident happened, I
H accept the version of facts in relation thereto and conclude that he was H
injured at the site in the course and arising out of his employment on
I I
19/5/2001.
J J
31. Mr. Sadhwani also suggested that the injury to the
K K
Applicant’s left ring finger might have been a pre-existing one. With
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respect, I would dismiss this suggestion as a mere speculation for
M
having no concrete evidence in support. M
N N
32. It is also improbable that the fracture of the left ring finger
O happened after the accident in view of the expert opinion of Dr. Jack O
Wong that gained also the support of the joint medical expert Dr.
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Arthur Chiang.
Q Q
The employer
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S 33. It is common ground that there was a subcontracting S
agreement between the 1st and 2nd Respondents for supply of manual
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labour for the project at the site. There was no other contract between
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由此
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A A
B any other DS’s companies including DS himself and the 2nd B
Respondent in respect of the site.
C C
D 34. DS himself admitted that the 1st Respondent was the D
employer of the Applicant on the date of the accident. The 2nd
E E
Respondent issued a working permit to the Applicant to work at the site
F naming the 1st Respondent as the contractor employing the Applicant. F
G G
35. It is submitted by Mr. Sadhwani that all along the Applicant
H treated DS personally as his employer and DS had not been named as a H
director of the 1st Respondent until after the accident. He submitted
I I
st
also that the 1 Respondent was not operational in that it had no
J insurance and MPF scheme for the employees. On the other hand, J
Geotechnical and Jaytey were companies in operation having
K K
insurance policy for their employees.
L L
M
36. Furthermore, the 1st Respondent’s name was deleted and M
replaced by that of Geotechnical on the “Notification of Accident”
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submitted to the Labour Department. There was also a document titled
O “Casual Worker Employment Contract” signed between Geotechnical O
and the Applicant. In a form titled “Notice by Employer of the Death
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of an Employee or of an Accident to an Employee resulting in Death or
Q Incapacity” submitted to the Labour Department in September 2001 Q
and signed by Geotechnical, the name of the insurance company of
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Geotechnical (“Ming An Insurance Company Hong Kong Limited”)
S was provided as the insurer in relation to the accident. There are 3 S
copies of cheques made out to the Applicant by Geotechnical for
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periodical payments in August 2002 and April 2003.
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由此
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A A
B B
37. As regard Jaytey, according to the Applicant’s tax return,
C C
Jaytey was his employer at least until 31/3/2001. In a letter dated
D 15/3/2002 from Jaytey addressed to “To Whom It May Concern”, it D
was certified that the Applicant was working with Jaytey from
E E
1/4/2001 until the date of the letter. There was another similar letter
F signed by a different person produced by the Applicant at trial. F
Between 18/7/2001 and 20/11/2001, 3 cheques of Jaytey were issued to
G G
the Applicant.
H H
38. Mr. Sadhwani submitted further that even if this court takes
I I
st
the view that the Applicant was working for the 1 Respondent at the
J time, as it was not operational, the possibility arises that the Applicant J
was lent or let on hire by either Geotechnical and/or Jaytey and/or DS
K K
st
and the 1 Respondent would not be liable as it would then not be an
L L
employer within the definition of the Ordinance.
M M
39. Mr. Sadhwani’s submissions are on the face of it attractive.
N N
I have also without doubt that the Applicant all along did not care about
O the identity of his employer provided that he has works to do and wages O
to earn. Albeit very well framed, Mr. Sadhwani’s arguments could not
P P
really answer the very question that none of the possible employers
Q except the 1st Respondent had the right to provide workers to the site. Q
They were simply not parties to the subcontract with the 2 nd
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Respondent.
S S
40. It is beyond dispute that DS had the control of the 3 relevant
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companies. If the 1st Respondent was chosen to be the party to the
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由此
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A A
B subcontract, there was no reason why DS would take the trouble to B
employ labourers by the other companies. If insurance or MPF were
C C
issues, DS could simply use either Geotechnical or Jaytey to sign the
D subcontract instead of the 1st Respondent. D
E E
41. My view is that, the arrangement between the Applicant
F and DS and his group of companies was that the Applicant would be F
employed by the company or person who had subcontracted a
G G
particular project to work at the site of that project. The fact that the
H Applicant was employed by one of the companies at a particular time H
for a particular project does not bar him from being employed by
I I
another company at another time for another project.
J J
42. For the confusion that the name of Geotechnical was given
K K
as the employer to the Labour Department, I accept the evidence of DS
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that it was a mistake but I believe that the mistake was also a deliberate
M
one caused by the fact that there was no insurance policy covering the M
1st Respondent.
N N
O 43. I accept the evidence of the Applicant that the letters O
certifying his employment with Jaytey were for the purpose of visa
P P
application and they can have no bearing on who was the employer of
Q the Applicant at the material times for his work at the site. Q
R R
44. Since all the 3 companies were controlled and beneficially
S owned by DS and/or his wife, the fact that part of the periodical S
payments were settled by a particular company does not help much in
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determining the true employer.
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由此
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A A
B B
45. There is simply no evidence to prove that the Applicant was
C C
hired or let to the 1st Respondent as suggested by Mr. Sadhwani. I can
D see no reason why DS should have taken such trouble. D
E E
46. In the premises, I find that the Applicant was employed by
F the 1st Respondent at the time he was injured and the 1st Respondent F
and the 2nd Respondent were liable to pay him compensation under and
G G
in accordance with the Ordinance.
H H
Quantum
I I
J 47. The Applicant claims under Section 9, 10 and 10A of the J
Ordinance. It is agreed that the Applicant has received a total sum of
K K
HK$212,780.00 as periodical payments.
L L
M
Monthly earnings M
N N
48. It is not in dispute that the Applicant earned a basic wage of
O HK$400 per day. As for the subject project, he commenced working O
from 2/5/2001 and stopped since after the accident. From what it
P P
shows on the 1st Respondent’s wage roll, the Applicant received the
Q amount of HK$6,437.50 for the 12 days’ work including one overtime Q
day.
R R
S 49. The said wage roll also shows that 23 out of the 33 workers S
(including the Applicant) worked more than 20 days in the month of
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May 2001. Excluding the overtime days, the average number of
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由此
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A A
B working days for these 23 workers is approximately 24. The average B
number of overtime days is approximately 2.5. Adopting these figures
C C
for calculation of the Applicant’s monthly earnings, taking HK$600 as
D the overtime wage per day, the amount would be HK$400 x 24 + D
HK$600 x 2.5 = HK$11,000.00.
E E
F Loss of earning capacity F
G G
50. The Applicant suffered blunt trauma injury to the end
H phalange of his left ring finger. He received conservative treatment at H
the A & E Department. On 22/6/2001 a malunited mallet fracture of
I I
the finger was shown on scan. An operation to excise dorsal
J osteophytes was performed on 5/8/2002. The X-ray on 11/11/2002 J
showed mild deformity of end phalanx and mild to moderate
K K
degenerative change at DIP joint.
L L
M
51. The Applicant still complains of pain on the left index M
finger upon exertion. It is his evidence that he could no longer perform
N N
the kind of heavy works that was required under his original
O employment. O
P P
52. Dr. Arthur Chiang opined that the Applicant should be able
Q to return to his former employment whilst Dr. Jack Wong had the view Q
that he will not be able to perform as a construction site worker in full
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capacity. Dr. Wong agreed that the limitation of the Applicant’s ability
S to perform heavy work is due to his pain suffered at the left index S
finger and this is very subjective.
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由此
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A A
B 53. By way of subpoena, DS called one Mr. Luk Koon Tin B
(“Luk”) who was the last employer of the Applicant carrying on a
C C
recycling business. Luk gave an account of the nature of work that the
D Applicant was required to perform in his company. According to Luk, D
the duties of the Applicant had no difference from the other workers
E E
except that he was not required to operate the machines. From time to
F time the Applicant was required to lift heavy objects and to pull heavy F
cables. He noticed no problem of the Applicant performing this kind of
G G
heavy duties.
H H
54. Luk’s evidence was different from that of the Applicant.
I I
However, I can see no reason to doubt Luk’s evidence as he has no
J interest whatsoever in the present litigation. Although there was J
another employees’ compensation claim against Luk’s company by the
K K
Applicant, the liability was covered by insurance and there was no
L L
purpose to serve for him to give false evidence in this court.
M
Furthermore, I was impressed by the prompt and straightforward way M
of Luk in answering questions that I find him a very credible witness.
N N
O 55. Whether there exists pain is a very subjective matter and it O
depends much on the evidence of the Applicant. In view of the
P P
evidence of Luk, I doubt very much that the Applicant could no longer
Q be able to perform heavy lifting duties as alleged. I prefer the evidence Q
of Dr. Chiang that the Applicant has no difficulties in resuming to work
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as a construction worker.
S S
T T
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由此
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A A
B 56. In this light, I find the formula under the “Hong Kong Paper B
Mills” formula for calculation of loss of earning capacity not
C C
applicable.
D D
57. In the circumstances, considering the opinions of Dr.
E E
Chiang, Dr. Wong and the First Schedule of the Ordinance and
F regarding the Applicant’s injury as arthrodesis or fusion of the finger F
joint, I would adopt the assessment of the Assessment Board of 2.5%
G G
as a fair figure for the Applicant’s loss of earning capacity. Hence, the
H appeal of the Applicant under Section 18 of the Ordinance is H
dismissed.
I I
J Compensations J
K K
58. Compensation under Section 9 would be HK$11,100 x 96 x
L L
2.5% = HK$26,640.00.
M M
59. For compensation under Section 10, in light of the deeming
N N
provision under Section 10(2) of the Ordinance and the opinions given
O by Dr. Chaing and Dr. Wong, the certified sick leave by the O
Assessment Board cannot be said to be unreasonable. The amount
P P
awarded would therefore be HK$11,100/30 x 617 x 80% =
Q HK$182,632.00. Q
R R
60. I accept that the medical expenses of the Applicant was
S HK$2,645.00 in total and I award the amount accordingly under S
Section 10A.
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由此
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A A
B 61. According to Section 10(4) of the Ordinance, no periodical B
or lump sum payments paid or payable under Section 10 shall be
C C
deducted from any amount of compensation payable under sections 6,
D 7, 8 or 9. D
E E
62. However, as the periodical payments have already
F exceeded the total amount awarded under Section 10 and 10A, the total F
sum to be awarded by this court should only be HK$26,640.00.
G G
H 63. In the premises, I order that judgment be entered against the H
Respondent in favour of the Applicant in the amount of HK$26,640.00
I I
and interest thereon at half judgment rate from 15/5/2001 to the date of
J handing down of this Judgment and thereafter at judgment rate until J
payment.
K K
L L
64. I make a cost order nisi as follows :-
M M
(i) costs of the Application of the Applicant be borne by the
N N
1st and 2nd Respondents on common fund basis, to be taxed
O if not agreed; O
(ii) costs of the 1st and 2nd Respondents in respect of the
P P
Applicant’s appeal under Section 18 of the Ordinance be
Q borne by the Applicant on party and party basis to be taxed Q
if not agreed;
R R
(iii) no order as to cost between the 1st and 2nd Respondents.
S (iv) counsel’s participation is certified. S
(v) Applicant’s own costs be taxed in accordance with legal
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aid regulations
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由此
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A A
B B
This order nisi shall be absolute upon expiry of 14 days
C C
from the date of handing down of the Judgment.
D D
E E
F F
(S. T. Poon)
G G
Deputy District Judge
H H
I I
Mr. David N. Brettell of Messrs Munros for the Applicant.
J 1st Respondent in person, represented by Mr. De Souza Tome Jose Carlos J
Elrino.
K K
nd
Mr. Kamlesh Sadhwani instructed by Messrs. Krishnan & Tsang for the 2
L L
Respondent.
M M
N N
O O
P P
Q Q
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S S
T T
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