Jatinder Singh v. Cheung Lit Kam and Another

DCEC 480/2020

[2024] HKDC 1827

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 480 OF 2020

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JUDGMENT

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A. Introduction

1.In this case, the Applicant claims compensation under s 9 of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) for personal injuries arising out of an accident which allegedly took place on 1 April 2018 while in the course of the Applicant’s employment with the 1^st Respondent (“R1”) as a garbage truck attendant.

2.As there seems to be no employees’ compensation insurance policy known to be in force to cover the accident, the 2^nd Respondent (“R2”) joined in these proceedings pursuant to s 25A(a) of the Employees Compensation Assistance Ordinance, Cap 365 to take over the defence as if it wAS the employer.

3.R2 does not admit the Applicant’s case and puts the Applicant to proof as to both liability and quantum.

4.R1 has never appeared in these proceedings despite attempts by solicitors for the Applicant to serve him at his last known address and notice of these proceedings by newspaper advertisement pursuant to the order for substituted service granted by the court.

5.At the trial before me, Mr Wright, counsel, represented the Applicant and Mr Shek, counsel, represented R2. R1 did not appear.

B.  The Applicant’s Case

6.According to the Applicant’s witness statements and oral testimony, his case is essentially as follows:

(1)  He was born on 23 December 1988 in India, ie he was 29 years old at the time of the accident;

(2)  He came to Hong Kong in 2017 and claimed asylum. He was issued a recognizance by the Immigration Department on 29 August 2017. There is no dispute that at all material times he was not lawfully employable;

(3)  He had a friend (“the Friend”), also from India, who used to work as an attendant on a garbage truck. When the Friend was on leave, he contacted the Applicant and asked him to replace him. This has happened 4 or 5 times when the Friend was on leave;

(4)  On those occasions when he worked as an attendant, it was always on the same garbage truck bearing registration no PH2500 (“the Truck”) driven by the same driver (“the Driver”). However, in his oral testimony, he said that he did not know the name of the Driver;

(5)  The Friend was paid on a monthly basis and would calculate the number of days the Applicant had substituted for him and paid him HK$500 each of those days. In cross-examination, he admitted that it was the Friend who paid him and he did not know nor ever met R1. In re-examination, when asked if he knew who was employing him, he said that he did not know;

(6)  As to what happened on the day of the accident on 1 April 2018, in his witness statement the Applicant said that he worked as an attendant on the Truck. The Truck started from Chai Wan at around 9:30 am. From there it would go to different locations. The final destination was in Kennedy Town. There was a second shift after lunch. It started from Sai Yin Pun and went towards Wanchai and Causeway Bay. At about 4 pm on that day, as he was alighting from the Truck at the Garbage Collection Centre near No 492 Lockhart Road, Causeway Bay, he slipped and fell from the Truck onto the road and suffered a serious head injury. He did not recall being in an ambulance but when he opened his eyes, he was in the hospital. He was told it was the Driver who called the ambulance and the Driver and a policeman were also there at the hospital;

(7)  However, in cross-examination, the Applicant said that he could not recall what happened after 9 am on the day of the accident;

(8)  As a result of the accident, he suffered head injury, had an operation and was in the hospital until end of May 2018; and

(9)  He confirmed that he has a total loss of vision in his right eye in that if an object is waved in front of his right eye he cannot tell what object it is. He could only see some shadow.

7.The Applicant also called Ms Josephine Li as a witness. Ms Li is a legal executive of the Applicant’s solicitors. According to her, she and the handling solicitor, Mr Brettell, received confirmation from the Hong Kong Police that according to their record, at around 4:15 pm on 1 April 2018, an incident was reported by a passer-by that at No 492 Lockhart Road, Causeway Bay, a male fell from a garbage truck and was found bleeding at his nose and mouth, seemingly unconscious. Furthermore, according to the Police, upon enquiry with the Driver, it was revealed that the Applicant had fell from the Truck while getting off therefrom.

8.On 26 March 2020, as requested by Applicant’s solicitors, the Police revealed that the name of the Driver was Lam Wai Hung and the registration of the Truck was PH2500. That afternoon, Ms Li and Mr Brettell went to No 492 Lockhart Road and at around 4:20 pm saw the Truck arrive. It was being driven by a Chinese male and sitting next to him, a Pakistani male worker (“the Worker”). Ms Li said that she saw the Worker get off the Truck, pick up a big green rubbish bin, took it to the back of the Truck and dumped the garbage into the Truck. Ms Li went to speak to the Driver and the Worker. She asked if they knew the Applicant. They said no. She further asked if they knew of an accident on 1 April 2018 involving the Truck. They also said no.

9.Ms Li and Mr Brettell then took some photographs of the Truck, the Driver and the Worker.

10.The Applicant had subpoenaed the Driver to testify at the trial. He had previously refused to give any information or receive correspondence from the Applicant’s solicitors.

11.In his testimony, the Driver confirmed that the photos taken of him by Ms Li and Mr Brettell was him. His evidence was that he was employed by R1 on the day of the accident. He disagreed that the Applicant was a casual worker standing in for the regular attendant. He denied having worked with the Applicant on previous occasions. According to the Driver, he had previously seen the Applicant once or twice on the street. On the day of the accident, he was giving him a ride to Causeway Bay for convenience. It was the first time that the Applicant had rode on the Truck.

12.When asked if he had been in contact with R1, he said they seldom had contact because he no longer worked for R1 since the beginning of 2024. When asked if R1 had communicated with him about this case, he said they once talked about the accident and that some person from a law firm did contact R1.

13.During the course of the Driver’s testimony, Mr Wright had applied to treat the Driver as a hostile witness and to cross-examine him. He submitted that the Driver was lying about the Applicant riding on the Truck for the first time on the day of the accident and only previously seen him on the street.

14.Mr Shek objected on the basis that the Driver was not adverse and could not be turned into a hostile witness simply because his evidence was unfavourable to the Applicant’s case. He referred to The Annotated Ordinances of Hong Kong, Evidence Ordinance (Cap 8), §12.05 which cited cases such as Greenough v Eccles (1859) 141 ER 315 and Tsui Koon Wah v Director of Social Welfare (unrep) HCA 2938/2003, 17 February 2006.

15.I did not consider there was sufficient grounds to find the Driver was hostile in that he had no wish to tell the truth on behalf of the Applicant, was uncooperative, refused to answer questions or showed other unmistakable sign of hostility: see HKSAR v Tang Wai Leung (unrep) HCCC 50/2014, 6 November 2014 per Zervos J at §3. In the present case, the Applicant’s solicitors not having previously been able to elicit any information from the Driver, cannot demonstrate that he has made any previous inconsistent statement which shows he is not telling the truth. I accordingly refused to order that the Driver was a hostile witness.

C.  Finding on Liability

16.Mr Shek submitted that the present case does not turn on the credibility of the Applicant because of the evidentiary lacuna. It is a case which could be decided on the burden of proof. He referred to the following observations of DHCJ Marlene Ng (as she then was) in Chan Chi Ling Elwyn v Richfield Realty Limited (unrep) HCLA 9/2013, 11 July 2014 at §§24-25:

“24. Even though ‘[no] judge likes to decide cases on burden of proof if he can legitimately avoid having to do so’, ‘[there] are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.’ This is explained by May LJ in Morris v London Iron and Steel Co Ltd as follows:

‘…… Judges and tribunals of fact should make findings of fact in relation to matters before them if they can. In most cases, although in some cases it may be difficult, they can do just that. Having made them, the tribunal is entitled to draw inferences from the findings of primary fact where appropriate. …… Judges should, so far as is practicable and so far as it is in accordance with their conscientious duty, make findings of fact. But it is in the exceptional case that they may be forced to reach the conclusion that they do not know on which side of the line to reach the conclusion. ……’

25. The principles have been summarised by Poon J in Big Island Construction (HK) Limited v Wu Yi Development Company Limited as follows:

‘19. If one version is found to be improbable, it does not necessarily lead to the acceptance of the other when, owing to the unsatisfactory state of the evidence, the court is not satisfied that the latter is probable. There are judicial utterances to the effect that in such scenario, the judge would be forced to say ‘I just do not know’ on which side of the line the decision ought to be drawn. However, such judicial utterances should not be understood to mean that the court will or should shy away from making a finding. What the court will do is to resort to deciding the matter on the burden of proof: The Popi M, supra, per Lord Brandon at p.956A; see also Yau Wah Yau v Commissioner of Inland Revneue, supra, per Tang JA (as he then was) at paras. 42 to 46. Applying In re B (Children), supra, the court will treat the matter of which the party carrying the burden of proof but failing to discharge it, as having not taken place.

20. If neither version is improbable, rejection of one may justifiably lead to the acceptance of the other: Datec Electronics Holdings Ltd and others v UPS Ltd, supra, per Richards LJ at para. 83 (upheld on appeal); Ide v ATB Sales Ltd, supra, per Thomas LJ at para. 6.

21. Finally, a good dose of common sense is required when the court evaluates the evidence in determining the probability or otherwise of the conflicting versions of events.’ (my emphasis)”

17.There is no dispute that the Applicant has the burden to prove, on the balance of probabilities, that he was working for R1 at the time he was injured.

18.In my view, the Applicant has plainly failed to discharge his burden of proof.

19.Firstly, as submitted by Mr Shek and I accept, after hearing the viva voca evidence of the Applicant, there is still no evidence to support the Applicant’s contention that R1 was his employer. He confirmed that he had never met R1 and did not know who was employing him at the time of the accident.

20.Secondly, there is no contemporaneous evidence to support that R1 was the Applicant’s employer at the material time. All that is relied upon is that the registration search of the Truck which revealed R1 as the registered owner of the Truck as at 1 April 2018. From the enquiries of the Applicant’s solicitors with the Food & Environmental Hygiene Department, the Truck was not a vehicle registered under any of their contractors responsible for street cleaning or waste collection service in Wanchai. Whilst the Driver admitted that he was employed by R1, it is entirely possible that the Driver and the attendant of the Truck were employed by different employers. Even if the attendant of the Truck was employed by R1, the court still has to be satisfied that the Applicant was an attendant employed by R1. There is no evidence of this.

21.Thirdly, although Mr Wright invited me to draw an adverse inference against R1 who did not appear that R1 was the employer, as Mr Shek submitted, which I accept, the adverse inference principle has no application to a case where the defendant has failed to attend trial. The relevant question for the court is simply whether the plaintiff has discharged his burden of proving his case on a balance of probabilities. See Tsui Ming Ki v Aman Group Limited trading as Aman Moving Services & ors [2022] HKDC 306 per DDJ Norman Nip SC at §34.

22.For completeness, I should mention that although in Mr Shek’s opening submissions he raised whether the Applicant had convulsion or seizure before he fell off the Truck such that his injuries did not arise out of and in the course of employment, this was not put to the Applicant in cross-examination nor pursued in closing submissions.

23.Furthermore, whilst Mr Shek had invited me also to find the relationship between the Applicant and R1 was similar to that of independent contractor rather than of employment, in view of my finding that there was no contractual nexus between the Applicant and R1, I am of the view that it is unnecessary to do so.

24.In any event, apart from the submissions by Mr Wright that the Applicant’s ability to give details of the route of the Truck and what the job of the attendant entailed was consistent with him being an employee albeit only for a day, there is hardly sufficient evidence for this court to make a finding based on the indicia of employment as explained in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 that the relationship was one of employment.

25.Had I found that the Applicant was employed by R1 and an employment relationship was one of employment, I would have exercised my discretion under s 2(2) of ECO. In Yu Nongxian v Ng Ka Wing [2007] 4 HKLRD 159, it has been held that the public policy would not be served by disallowing claims under the ECO by illegal employees: see §§74-78, 101-104. In Muhammad Dost v Hong Kong Ying Cheung Trading (Recycling) Limited [2019] HKDC 375, DDJ Elaine Liu (as she then was) observed at §5 that since that decision, the discretion under s 2(2) has often been exercised in favour of illegal works in Hong Kong. Mr Shek adopted a neutral stance on this issue. Under such circumstances, I see no basis why the discretion should not be exercised in favour of the Applicant.

D.  Finding on Quantum

26.The Applicant was not assessed by the Employees’ Compensation (Ordinary Assessment) Board.

27.The Applicant relied on the single joint neurological report of Dr Yu dated 8 December 2023 (“Dr Yu’s Report”). In particular, Dr Yu opined therein that the Applicant suffered a total of 26% percentage of permanent impairment of the whole person (“PIWP”) with reference to the 6^th Edition of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association in 2008 (“AMA Guides”). At paragraph 22 of Dr Yu’s Report, PIWP is assessed to be: 1% for headache; 2% for neurocognitive impairment; 2% for neurobehavioural impairment (but stated not to be included in the computation of Combined PIWP); 3% for anosmia; and 20% for blindness of the right eye. The Combined PIWP according to the Combined Values Chart of the AMA Guides is 26%.

28.However, Mr Wright submitted that, taking Dr Yu’s finding of blindness of the right eye or visual loss of right eye, which is a scheduled injury, the percentage of loss of earning capacity for loss of sight of one eye is 50% as per the First Schedule of ECO. For the non-scheduled injuries namely, headache, neurocognitive impairment and anosmia, Dr Yu has assessed these as 6%. Therefore, the total loss of earning capacity is 56%. Adopting the statutory minimum specified in the second column of the Sixth Schedule shown opposite to s 7(2) which is HK$464,360 (at the time of accident) as the base figure, applying 56% to which is HK$260,041.60.

29.Mr Shek did not dispute the base figure of HK$464,360 and the approach that a percentage of the total loss of earning capacity should be applied to that base figure to arrive at the compensation under s 9 of ECO. However, Mr Shek disagreed with the Applicant’s quantification.

30.Firstly, he disputed that the Applicant has a total loss of vision over his right eye. He referred to the medical report of the Department of Ophthalmology of Grantham Hospital dated 15 August 2024 which noted “visual acuities were hand movement on the right eye”. Dr Yu noted at paragraph 16, “visual acuity of the right eye was hand movements within a distance of one foot. At a longer distance, there was only light perception.” He submitted that in saying that “blindness” of the Applicant’s right eye accounts for 20% of PIWP (at paragraph 22), Dr Yu was not saying the Applicant was completely blind but that he suffered 20% impairment to his whole visual system including both eyes.

31.With respect, I do not agree with Mr Shek’s reading of Dr Yu’s Report. There are consistent references to “visual loss of the right eye” (paragraph 21), “blindness of the eye” (paragraph 22), “loss of vision of one eye” (paragraph 24) and “loss of sight of one eye” (paragraph 24).

32.As for PIWP, this is the percentage of impairment of the whole person so plainly it is not a percentage of impairment to the visual system only.

33.Secondly, Mr Shek relied on Dr Yu’s assessment of 23% loss of earning which he said was with reference to the First Schedule. At paragraph 24 of Dr Yu’s Report, it was stated:

“You have requested an assessment of the percentage of loss of earning capacity. In the First Schedule to the Employees’ Compensation Ordinance 1993 version (Document enclosed), the loss of earning capacity for loss of sight of one eye is 50%. With reference to this document, and taking into account the employments he is able to take up, the loss of earning capacity due to neurological impairment is assessed to be 23%”.

34.Therefore, Mr Shek submitted that the Applicant’s claim for s 9 compensation should be based 23% x HK$464,360, ie $106,802.80.

35.However, given the loss of sight of an eye is a scheduled injury (which as correctly noted by Dr Yu, the specified percentage of loss of earning capacity is 50%), I am not bound by Dr Yu’s opinion on the employments the Applicant is able to take up and based on that, his assessment of loss of earning capacity. Indeed the statutory percentage is fixed and my assessment is to be based on that. On the other hand, for non-scheduled injuries, the loss of earning capacity must reflect and be proportionate to the fixed statutory percentage provided for the scheduled injuries. It has been held that the report of experts are admissible and of assistance to the court in assessing compensation for non-scheduled injuries. See Chan Yuet Keung v Harmony (International) Knitting Factory Ltd (unrep) HCPI 144/2009, 2 November 2010 per Bharwaney J at §§56-58 and 62.

36.Accordingly, I accept the assessment by Dr Yu of 6% for the non-scheduled injuries by reference to AMA Guides and take the view that it reflects and is proportionate to the percentage provided for scheduled injuries.

37.Thus if I was wrong and liability is established, I would hold that s 9 compensation should be assessed at HK$260,041.60.

E.  Disposition and Orders

38.For the reasons mentioned above, I would dismiss the Applicant’s claim.

39.I make an order nisi that the Applicant should bear the costs of R2 (including all costs reserved, if any), with certificate for counsel, to be taxed if not agreed. The Applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations. This order nisi shall become absolute unless any application is made to vary within 14 days from the date hereof.

Mr John Wright, instructed by Burke & Company, assigned by the Director of Legal Aid, for the Applicant

The 1^st Respondent was not represented and did not appear

Mr Conan Shek, instructed by Gallant, for the 2^nd Respondent