Lam Cheuk Wai v. Hung Man Construction Co Ltd
Read the full judgment text of DCEC 2447/2019 on BabelCite. This District Court judgment was delivered on 24 October 2023.
1. This is an application by the applicant for employees’ compensation payable under Sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) ( “the Ordinance” ) for injuries sustained in an accident on 12 July 2018.
Cites 2 cases
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DCEC 2447/2019 [2023] HKDC 1500 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO 2447 OF 2019 --------------------------
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-------------------------- JUDGMENT -------------------------- A. Introduction 1.This is an application by the applicant for employees’ compensation payable under Sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”) for injuries sustained in an accident on 12 July 2018. 2.The applicant was the only witness testifying at the trial. On the other hand, although Ho Tak Eng (何德英), sole director and shareholder of the respondent, had previously filed a witness statement in this case, the respondent had not called Ho Tak Eng (or any other witnesses) to testify at the trial. B. Issues 3.The issues in this case are as follows:-
C. Assessing evidence and Credibility 4.In assessing the credibility of a party’s case, it is trite that the court should take into consideration the followings:-
5.I have carefully examined the applicant’s evidence. He is obviously not a sophisticated person. At times, his evidence was unclear and what he meant was only understood after repeated clarifications. However, on the crucial issues, his evidence was coherent and not shaken in cross‑examination. I therefore found the applicant to be a credible and reliable witness. D. Issue 1: Employment relationship 6.The respondent’s argument was two-fold:-
D.1 Independent contractor or employee 7.The modern approach to the question whether the applicant was a contractor or an employee was set out in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 where Ribeiro PJ held the following:-
8.No single factor is determinative and a court will balance the various factors suggesting the existence of an employment relationship against contrary factors, and their relative strengths and weaknesses. Some factors may be neutral. Some may be entirely irrelevant in a particular case: Chitty on Contracts, Hong Kong Specific Contracts, 7th edition, paragraph 12-008. 9.After considering all the circumstances of the case, I am satisfied that the evidence points to the applicant being an employee instead of an independent contractor under the Ordinance for the following reasons. 10.The respondent had a high degree of control over the work of the applicant. The daily work location and work procedures were decided by Ho Tak Eng. Ho Tak Eng would phone the applicant and give instructions as to his work location and responsibilities the evening before. The applicant only needed to follow Ho Tak Eng’s instructions and attended the work location designated by him. In case there were any problems with the construction, the workers (including the applicant) would report to Ho Tak Eng. The secretary, Ms Cheung (張小姐), would call the workers and ascertain the names of the workers who attended work that day, and the workers would report to Ms Cheung if they were off from work, or they had to work overtime. 11.The applicant did not hire other helpers to assist his work, and he did not have to bear the financial risks of the work, nor did he profit from it. He did not have knowledge of the costs of the renovation projects, and he did not have to make any investments in relation to the renovation projects. Ho Tak Eng would choose the construction materials and would be responsible for the purchase. The applicant would occasionally help with the purchase of a small number of materials or items, like screws and glass adhesives. After making the purchases, he would hand the receipts to Ho Tak Eng, and Ho Tak Eng would reimburse him in cash. The applicant would have to acknowledge receipt and he would not profit from the purchase of materials. 12.The applicant was not required to provide tools and equipment for the work. Ho Tak Eng would arrange for the tools and equipment. 13.The applicant’s salary was calculated per day and paid per month, instead of on the basis of an agreed fee for a construction project. The applicant had an oral agreement with Ho Tak Eng of the respondent that he would work as a construction worker six days a week, from 9 am to 6 pm, and his daily wage was HK$1,100. He would be entitled to overtime pay and a pay of HK$1,100 would be made for every additional 6 hours. In addition, he would receive allowances depending on the nature of the work. He would also receive extra allowances for his help in organising and tidying up work equipment. If the work location was far away, he would receive transport allowances. The wages were paid in cash once a month. D.2 Identity of the employer 14.The issue was a narrow one. The respondent’s main argument was that the applicant had given inconsistent versions about whether he was employed by the respondent, or directly by Ho Tak Eng. As aforesaid, Ho Tak Eng was the sole director and shareholder of the respondent. 15.As shown in his witness statement, his testimony in the witness box, and his declaration to the Labour Department, the applicant had mentioned his employer variously to be:-
16.Ms Melinda Chiang, counsel for the respondent, therefore argued that the applicant’s evidence was not credible or reliable. With respect, there is nothing in this argument. I agree with the applicant that Ho Tak Eng was the director of the respondent and was responsible for the daily operation of the respondent. There is therefore nothing surprising for the applicant, who is apparently not a sophisticated person, to have used the name of Ho Tak Eng and the respondent interchangeably when statements were given on the matter concerned. Further, as aforesaid, he had on occasions clearly stated that his employer was Ho Tak Eng of the respondent. I have therefore no doubt that when he mentioned Ho Tak Eng as his employer, he was referring to the respondent, as represented by Ho Tak Eng, to be his employer. 17.The respondent mounted a similar challenge to the capacity of the secretary who made the periodical payments to the applicant during the applicant’s sick leave period. There was no dispute that the payments were made by one Ms Cheung and she was a secretary. However, the respondent argued that the applicant’s evidence was contradictory as he sometimes described Ms Cheung as “老闆秘書”, and sometimes as “公司秘書”. Again, I cannot accept this argument. When his evidence was considered in context, I have no doubt that such semantic quibbles taken with the terminologies could not mask the fact that the applicant was referring Ms Cheung as the secretary of the respondent, who was paying the relevant periodic payments on the respondent’s behalf. 18.Further, as stated above, Ho Tak Eng did not testify at the trial, despite the respondent having filed and served the witness statement of Ho Tak Eng before the hearing. 19.When a party, without explanation, fails to call a witness who might reasonably be expected to call to give evidence, a court is entitled to draw an adverse inference against that party that the person’s evidence would not have helped that party in relation to any particular evidence that has been given for or against that party: Li Sau Keung v Maxcredit Engineering Ltd & Anor [2004] 1 HKC 434 at 443-444, per Le Pichon JA. 20.Applying the above principle, this court is entitled to, and shall, infer that had Ho Tak Eng been called, his evidence would unlikely rebut the applicant’s allegations made against the respondent. D.3 Conclusion on Issue 1 21.Viewing the matter in the round, I found that the applicant was employed by the respondent at the time of the accident. E. Issue 2: The accident E.1 The applicant’s case 22.According to the applicant:-
E.2 The respondent’s argument 23.The respondent disputed that the accident happened as the applicant alleged. It argued there was a discrepancy between the aforesaid account of the applicant and the “A&E Clinical Documentation Form” of the North Lantau Hospital which recorded that the applicant had fallen from a ladder. 24.The following information was stated on the said form:-
25.Regarding this discrepancy, the applicant explained that he was in severe pain after the accident and could not speak. He was also afraid and dizzy. He was taken to the hospital by his colleagues Ah Hung and Ah Wang. He heard his colleague Ah Wang telling the nurse and the doctor at the A&E Department of North Lantau Island that he had fallen from height. That was the reason for the said record. However, the applicant said that he was in fact hit by the I-beam. 26.I accept the applicant’s explanation. I agree with Ms Julia Lau, counsel for the applicant that the clinical condition of the applicant at that time was critical. As can be seen from the medical records, the applicant was suffering from severe pain and had swelling over his right jaw and right shoulder. He had hemoptysis and neck emphysema. Various investigations were done upon arrival at the A&E Department of North Lantau Hospital including blood test; chest x-ray, shoulder x-ray and neck x-ray. He was intubated by Dr Chu Siu Sha at 1133 hours and he was immediately transferred to Prince Margaret Hospital under the escort of Dr Chu and a nurse. Apparently, the applicant was not in a condition which could account for how he suffered the injury in any details at the time. It was recorded in the record that his colleague was an informant. The relevant “discrepancies” could be a result of the emergency unfolding before the parties at the time for which the medical staff could have no luxury to elicit and confirm information as one would have in a calm atmosphere. There was also no evidence from the respondent in rebuttal. E.3 Conclusion on Issue 2 27.I found that the accident had happened as claimed by the applicant, and was therefore arising out of and in the course of his employment with the respondent. F. Quantum F.1 Quantum of damages under section 9 28.The applicant claimed that his daily wage was agreed at $1,100. He was also entitled to receive overtime allowance, travelling allowances as well. On average, he worked not less than 25 days per month at the material time and his average monthly earnings during the preceding 12 months was $32,135. A summary of his earnings during the preceding 12 months prior to the accident is prepared and disclosed at page 208 of the trial bundle. Those figures were supported by contemporaneous written work records prepared by the applicant which I accept as true and accurate. 29.The applicant was born on 18 December 1962. He was still 55 years old at the time of the accident which happened on 12 July 2018. In the circumstances, the amount of Section 9 compensation payable is thus:-
F.2 Quantum of damages under section 10 30.There is no dispute that the applicant was granted 506 days of sick leave as a result of the injuries he sustained. 31.The amount of compensation payable under Section 10 is thus:-
F.3 Quantum of damages under section 10A 32.The respondent does not dispute the figure of $7,080 as medical expenses incurred by the applicant as a result of the injuries sustained in the accident. F.4 Conclusion on Quantum 33.The amount of compensation payable to the applicant is thus:-
G. Order 34.Judgment is entered against the respondent. I grant an award in the total sum of $1,124,265.27 with interest at half of the judgment rate from the date of the accident to the date of judgment, thereafter at judgment rate until full payment. 35.I also make an order nisi that the respondent shall pay the applicant’s costs (including all costs reserved, if any) to be taxed if not agreed, with certificate for counsel. The applicant’s own costs be taxed in accordance with the Legal Aid Regulations. 36.It remains for me to thank counsel for their assistance.
Ms Julia Lau, instructed by Vincent T.K. Cheung, Yap & Co, assigned by the Director of Legal Aid, for the applicant Ms Melinda Chiang, instructed by Bobby Tse & Co, for the respondent | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||