Hui Shing Hop v. Wong Ming Chuen t/a Chuen’s Recycle Co

DCEC 1108/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1108 OF 2015

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Before: Deputy District Judge Kam K L Cheung in Court

Date of Hearing: 6 March 2017

Date of Judgment: 28 March 2017

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JUDGMENT

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1.The Applicant brought the present application for compensation under the Employees’ Compensation Ordinance in respect of an accident on 8 July 2013 at a used materials collection centre in Yuen Long. It used to be the case of the Respondent that the Applicant was not his employee but an independent contractor. At the beginning of the trial, the Respondent made a major concession and conceded that he was indeed the Applicant’s employer. As a result of such concession, the only issue remained to be decided is whether the Applicant was injured in the course of his work.

The Applicant’s Evidence

2.The Applicant was born in May 1980. In early 2013, he through the Labour Department got to know that the Respondent was looking for a driver. He applied for the job and got employed as a full-time driver. His usual working hours were from 9 am to around 8 pm and his main duty was to deliver used papers, plastic bottles and other materials for cycling to various processing factories and collection points.

3.Shortly after lunch break on 8 July 2013, the Respondent instructed the Applicant to drive a truck with a load of used papers, which were carried in two metal cages, to a collection point in Yuen Long. After arriving at the collection point, the Applicant let the workers working there take over the metal cages and have the used papers emptied from them. When the emptied metal cages were returned to the truck, one of which was in an upside down position. Using the hydraulic platform at the rear of the truck, the Applicant raised the cage to the compartment level and tried to flip it over. When it was being flipped over, it somehow landed on the Applicant’s right foot and injured his big toe.

4.At the time of the accident the Applicant was accompanied by a co-worker called Ah Choi. When the Applicant was standing on the hydraulic platform and trying to flip over the metal cage, Ah Choi was pushing from below. Although Ah Choi witnessed the accident, he did not come to check whether the Applicant was hurt. On seeing that there was some blood on the second toe, the Applicant went to the office to get two bandage plasters and applied them to the toe.

5.After the accident, the Applicant took a rest and reported the accident to the Respondent by phone. The Respondent instructed him to drive the truck back to Tin Hau Road but did not release him from work. The pain in the Applicant’s foot did not subside and the Applicant attended the Department of Accident and Emergency of Pok Oi Hospital after work.

6.The Applicant returned to work on either 9 or 10 July 2013. However, as the Respondent insisted that he was an independent contractor and refused to pay him any sick leave pay, he quitted on or around 23 July 2013.

The Respondent’s Evidence

7.In his witness statement, which was adopted in full without any qualification, the Respondent said that the Applicant was an independent contractor. According to him, it was entirely up to the Applicant whether he would turn up for work. If he did turn up, and no matter how late he turned up, he would be paid $600. There was no supervision by the Respondent and the working hours were not fixed. The Applicant was free to arrange the order of work to suit his own needs.

8.As for the alleged accident, the Respondent claims that it was not until he received a notice from the Labour Department that he became aware of it. Never did he notice any wrong with the Applicant. In fact, the Applicant continued to turn up for work up to 21 August 2013.

Any Accident to the Applicant?

9.Whether or not the Applicant was injured in the course of his work is a question of facts which turns on the credibility of witnesses. In assessing the credibility of the witnesses, the court takes into account, among other things, the inherent probabilities or improbabilities of their testimonies, the contemporaneous documents or any evidence, which is undisputed or indisputable, tending to support or contradict one account or the other and the overall impression of the witnesses: Ip Fung Kuen HCA 1897/2009 (unreported, date of judgment: 6 April 2016) at §65-67; Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd (unreported) HCA 1957/2005, 28 July 2011.

10.In this case, there is no dispute that the Applicant was injured on the day of the alleged accident. The fact is that he attended the Department of Accident and Emergency of Pok Oi Hospital sometime in the evening on the same day. X-ray examination revealed fracture of the distal phalanx of the right big toe, which, according to the undisputed medical evidence, was consistent with a crush injury.

11.Both the Respondent and his witness (Ah Choi) denied knowledge of any accident in their witness statements and at trial. Given the alleged lack of knowledge on their part, I appreciate that there was not much they could say apart from repeating their denial. After all, it is difficult or sometimes impossible to prove a negative. However, for the following reasons I do not regard them as honest witnesses and find their evidence unreliable. First, what the Respondent says in his witness statement about the Applicant being an independent contractor (for examples, he occasionally drove his truck to work, had the right to refuse work and to determine the order of work, etc.) is inconsistent with the objective facts and against common sense. Although the Respondent had conceded at the beginning of the trial that the Applicant was his employee, he somehow during cross-examination reverted back to his admittedly false story and suggested that the Applicant was an independent contractor. He was bold enough to claim that he would pay the Applicant $600 even if he was very late in turning up for work, say at around 6 pm. Ah Choi, who was not supposed to have any knowledge about the Applicant’s status, was also prepared to say whatever he needed to say to create an impression that the Applicant was an independent contractor. Apparently, his major concern was to tell a story that was consistent with that of his employer. Telling the truth was not his major concern, if that concerned him.

12.Certain aspects of the evidence of the Respondent are also unsatisfactory. For examples, he alleged that the Applicant looked perfectly well and continued to work up to 21 August 2013. Had there been any truth in his allegation, he ought to have adduced some evidence to prove that the Applicant had worked beyond 23 July 2013. However, he made no attempt to prove what he alleged. On the whole, I find both the Respondent and Ah Choi unreliable witnesses.

13.On the other hand, I find the Applicant an honest witness. Ms Chan, counsel for the Respondent, submitted that I should disbelieve the Applicant for the inconsistencies in his evidence.  I actually shared Ms Chan’s view that the Applicant’s answer was not entirely clear. That was why I did, after Ms Chan had finished cross-examining the Applicant, take the liberty to ask the Applicant to clarify his evidence. In response to my questions, the Applicant explained that he needed to flip over the metal cage twice to restore it to the right position. It was while he was flipping it for the second time that he was hit by it. Although he was hurt, he managed to turn over the metal cage at the end.

14.Ms Chan submitted that the Applicant’s claim that he was able to turn the metal cage over was inconsistent with one of his answer to her questions, namely:-

“問：反唔反倒 [該鐵籠]？

答： 反唔倒。＂

15.Granted that the Applicant said in one of his answers that he was not able to turn the metal cage over（反唔倒）, he also, when cross-examined by Ms Chan, said that he was hit by the edge near one of the wheels and that the metal cage was no longer in an upside down position at the end. It seemed to me that it was due to the fact that the Applicant’s mind had not been directed to how exactly the accident unfolded that some of his answers might appear to be inconsistent with each other. Without asking the Applicant what he intended to mean by “反唔倒”, it would not be fair to say that that particular answer of him was so inconsistent with the rest of his evidence that the entirety of his evidence should be rejected.

16.In Chong Ha Kui Tai v Multicon Engineering Company Limited (in liquidation) and Others HCPI 1168/2002 (at §13), Suffiad J said:-

“… in a civil matter, where the standard of proof is on balance of probabilities, it is very seldom if at all that cross-examination alone showing up minor discrepancies and inconsistencies would be sufficient for a court to wholly reject and to disregard the evidence given by a witness short of some major concessions made by the witness,”

17.It is correct that there are discrepancies in the Applicant’s evidence. However, given his background, the discrepancies are not unexpected. Testifying in court can be a frightening experience to a lay person and describing a happening in words is an acquired skill not naturally possessed by many. I consider that the discrepancies in the Applicant’s evidence insignificant, at least not significant enough to cause me to doubt the truthfulness of his evidence.

18.I accept the Applicant’s evidence and find that an accident that arose out of and in the course of his employment with the Respondent did happen to him on 8 July 2013.

Injuries and Medical Treatment

19.As the Respondent did not dispute quantum, the Applicant’s injuries and the treatments can be briefly stated.

20.The Applicant attended the Accident and Emergency Department of Pok Oi Hospital on 8 July 2013. Examination revealed fracture of the distal phalanx of the right big toe. He was treated and discharged on the same day and had follow-up treatments at Tin Shui Wai Community Health Care and Tuen Mun Hospital. He was granted sick leave up to 1 November 2013, totally 116 days.

21.By a Form 7 dated 21 September 2015, he was assessed to have suffered 0.5% loss of earning capacity.

22.There being no dispute that the Applicant’s average monthly salary was $15,600, I shall adopt the said figure in my assessment.

Section 9 Compensation

23.I shall award $7,488 (being $15,600 x 96 x 0.5%) under s 9.

Section 10 Compensation

24.The Applicant received full pay for 12 days during the sick leave period. The amount recoverable under s 10 is $43,264 (being $15,600 x (116-12)/30 x 4/5).

Section 10A

25.The Applicant’s evidence that he incurred $2,250 as medical expenses is not challenged. Accordingly, I award $2,250 under s 10A.

Total Award

26.The total amount recoverable by the Applicant is $53,002.

Orders

27.Judgment be entered against the Respondent in the sum of $53.002 with interest thereon at 4% per annum from the date of the accident to the date of judgment and at 8% thereafter until full payment.

28.I further make a costs order nisi that the Respondent do pay the costs of the Applicant, to be taxed if not agreed, with certificate for counsel and that the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

29.I thank counsel for their assistance.

Ms Kay Seto, instructed by Legal Aid Department, for the Applicant

Ms Leona Chan, instructed by C W Chan & Co, for the Respondent