Mohammad-riasat v. Chung Yiu Man t/a Man on Tyre Repairing

DCEC000908/1999

DCEC908/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 908 OF 1999

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Coram: Deputy District Judge Marlene Ng in Court.

Dates of Hearing: 27, 28 and 31 March 2003

Date of Handing Down Judgment: 7 April 2003

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J U D G M E N T

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Introduction

1.This is an application for employees' compensation by the Applicant under sections 9, 10 and 10A of the Employees' Compensation Ordinance Cap.282 (the "Ordinance"). The Applicant, aged 25 years in 1999, claimed that he was injured on 13th March 1999 at about 1:00 p.m. as a result of an accident arising out of and in the course of his employment with the Respondent when he slipped on the road whilst trying to lift the tyre of a 16-tonne lorry. The Applicant also sought leave to appeal against the Certificate of Review of Assessment dated 31st July 2000 (the "Certificate") under section 18 of the Ordinance (the "Appeal"). The Respondent denied that the incident which was said to give rise to the claim took place.

Procedural matters

2.In the course of the opening submissions by Mr Chiu, counsel for the Applicant, I drew his attention to the fact that the Appeal was out of time. The claim for leave to appeal against the Certificate was added to the Application by amendment pursuant to the Order of His Honour Judge Carlson dated 20th November 2001 under rule 19 of the Employees' Compensation (Rules of Court) Rules and Order 20 rule 5 of the Rules of the District Court. His Honour Judge Carlson had not been asked to exercise his discretion under section 18(2) of the Ordinance to allow the Appeal to be lodged out of time.

3.Submissions were made as to whether the application to appeal against the Certificate out of time should be heard first. In the end, Mr Chiu applied for a split trial to deal first with the issue of liability, and to adjourn the matters of quantum and the Appeal. Mr Yun, solicitor for the Respondent, had no objection and I therefore ordered a split trial as aforesaid with the matters of quantum and the Appeal adjourned sine die with liberty to restore.

4.Both Mr Chiu and Mr Yun confirmed that items A(b)1-6 of Part B of the trial bundle ("Bundle B") and all documents in Part D of the trial bundle ("Bundle D") were agreed as to admissibility and authenticity. Mr Chiu informed the court that since only the issue of liability was before the court, he would not refer to the medical reports in Part C of the trial bundle. He further informed the court that in the course of adducing evidence, he would canvass the matters of the Applicant's salary and the initial treatment given to him by the bonesetter and the private doctor as they went to the credibility of the witnesses. Mr Yun had no objection to the split trial being conducted on such basis.

5.Both parties were content that I refer to the photocopies in the trial bundle, which were also referred to by the witnesses when they gave evidence.

The issues

6.Mr Chiu has helpfully highlighted the following relevant issues in his opening submissions :

(a) whether an accident occurred to the Applicant on 13th March 1999 as alleged by him;

(b) if so, whether the accident and/or injury sustained by the Applicant arose out of and in the course of his employment;

(c) the Applicant's earnings from the said employment; and

(d) whether the Respondent was aware of the occurrence of the accident.

Although (c) above is not strictly necessary for determining liability, this issue has been canvassed in depth in the evidence of the witnesses. Both Mr Chiu and Mr Yun submitted to me that such issue would be relevant to assessing the credibility of the witnesses. Indeed, both of them urged me to make findings of fact on the nature of the Applicant's employment with the Respondent and his employment terms as all relevant evidence was before the court. This would save re-consideration of these issues again (with further costs incurred for both parties) in case this matter goes further.

The witnesses

7.Two witnesses testified : the Applicant and the Respondent. As will emerge from the summarised recitation of the evidence below, this case turns very much on whose evidence I believe. The burden, of course, is on the Applicant to persuade me that his version of the accident and events is the true one.

8.Both the Applicant and the Respondent adopted their respective witness statements as part of their evidence-in-chief.

Applicant's background

9.The Applicant was born on 27th February 1974 in Pakistan. He could read, write and understand English. He could understand a little of the punti (Cantonese) dialect. After he came to Hong Kong some time in 1992, he worked at various jobs. He had worked as a plumber at Chek Lap Kok airport from 1997 for around one year. He earned HK$12,500.00 per month and had worked on average for 26 days in a month. When the project was completed, he worked for another company at the airport. Such evidence was not disputed.

Respondent's background

10.The Respondent was the sole proprietor of Man On Tyre Repairing and has since 1996 carried on the business at Ground Floor, No.171 Hang Wai Industrial Centre, Tuen Mun, New Territories. He said that it was a small-scale business and he was the only person operating it. This evidence was also not disputed.

Applicant's employment with the Respondent

11.According to the Applicant, he started working for the Respondent as a car mechanic at the latter's garage on 23rd September 1998 until the day of the accident, namely, 13th March 1999. His work included repairing and changing vehicle tyres, changing and charging of vehicle batteries, etc.

12.The Applicant said when the Respondent was satisfied after testing his ability, he offered to employ the Applicant at HK$11,000.00 per month. The Applicant asked for HK$12,000.00 to which the Respondent eventually agreed. There was no written agreement between the Applicant and the Respondent. The Applicant said that he had a written contract of employment whilst he worked at Chek Lap Kok airport as his former employer was a big company. But the Respondent was a small shop, and the Applicant also had no written contract of employment when he worked for a similar shop in Taipo.

13.The Applicant said he was paid a basic salary of HK$12,000.00 per month. His working hours were from 8:00 a.m. to 6:30 p.m. with lunch hour from 12:00 noon to 1:00 p.m. On average, he worked 26 days in a month. He was also entitled to year-end bonus equivalent to one month's basic salary. He was paid on the 1st and 15th days of each month in cash by the Respondent. The Applicant did not give any receipt of wages to the Respondent.

14.The Applicant disagreed that he was a casual or temporary worker or that he was paid at the end of each working day at daily wages of HK$350.00. He said that he was a full-time worker because, inter alia,

(a) as the Respondent could not anticipate when potential customers' tyres would puncture, a ready full-time worker was required and it was not possible to call up a casual worker for his services when the tyre punctures happened;

(b) the Applicant was to receive year-end bonus, so he was regarded as a full-time worker with an anticipated longer term of employment;

(c) the Applicant was a skilled worker, having experience in the repair of tyre punctures;

(d) the Applicant was previously earning about HK$12,000.00 per month, so he would not have agreed to a job only offering a limited number of days' work at a much lower pay.

15.In support of his contention that he was paid wages of HK$12,000.00 per month on a bi-monthly basis, the Applicant referred to two deposit entries of HK$1,500.00 and HK$9,300.00 on 21st January and 1st February 1999 in the passbook of his Hong Kong Bank account (pages 26c-l of Bundle D). He said that part of these sums comprised of wages he received from the Respondent. He was questioned on other deposit entries during the relevant period but he stated that such sums were not from his wages.

16.The Applicant did not receive any year-end bonus because he had not worked for a full year as yet by 13th March 1999. He said that he did not file any tax return because no tax was payable by him as he had family dependants, and no blank tax return form was sent to him by the Inland Revenue Department for his completion, it being the obligation of the employer to submit the employer's return to the department. Whilst he worked at Chek Lap Kok airport, his former employer submitted the employer's return and the Applicant therefore filed his tax return.

17.The Respondent's evidence was that he did not employ any employee until mid-1998 when he felt that his physical strength was diminishing. To relieve him in his work, he employed the Applicant as a casual worker (with working hours normally from 9:00 a.m. to past 6:00 p.m.) on a daily basis at HK$350.00 per day and to be paid only when there was work done without any benefit or double pay. The Applicant had no obligation to report for duty.

List of earnings

18.The List of Earnings filed on 6th January 2000 by the Respondent stated that the Applicant worked on average 20 days a month and at daily wages of HK$350.00, and his wages per month were HK$7,000.00. The Respondent's evidence was that such figures were rounded up to average sums for easy calculation. He said that he could only give rough and not exact figures from his impression. However, from his records, the Respondent subsequently discovered that the Applicant did not work for the same number of days every month. Hence, he instructed his present solicitors to amend the List of Earnings to set out the number of days the Applicant actually worked, namely 7, 19, 16, 14, 17, 11 and 6 1/2 days for each month from September 1998 to March 1999 inclusive. The Respondent led no evidence as to his records nor how he came to the actual number of days worked by the Applicant as shown in the Amended List of Earnings filed on 20th February 2002.

19.On the Amended List of Earnings, the Applicant agreed that he worked for 7 days in September 1998 since he only joined the Respondent on 23rd September 1998. He said that for that week he was paid HK$400.00 per day. Thereafter he was paid HK$12,000.00 per month. He disagreed that he worked only the number of days stated in the Amended List of Earnings at HK$350.00 per day. The Applicant said that as a full-time worker he worked for whole months for the relevant period save for Sundays, public holidays and 6 days at Chinese New Year. He also disagreed that he worked only 6 1/2 days in March 1999. He said that he worked 13 days in March 1999 (that is, up to the date of the accident) but the Respondent paid him for a full half month's pay of HK$6,000.00 on 17th March 1999.

Respondent's letter

20.To support his contention that his monthly salary was HK$12,000.00, the Applicant also referred to a letter in English dated 5th February 1999 issued by the Respondent (the "Letter") (page 20 of Bundle D) which certified that the Applicant was working for the Respondent as a tyre vulcanizer since 23rd September 1998 with a monthly salary of HK$12,000.00.

21.The Applicant explained that he informed the Respondent that he required an employment letter for his application to the Immigration Department for unconditional stay in Hong Kong (see undated guidance note issued by the Immigration Department (exhibit P1)). The Immigration Department confirmed by letter dated 26th March 2003 that the Applicant submitted the application for unconditional stay on 15th February 1999 (pages 26m-n of Bundle D). It appeared from the stamp of the department that they received the Letter also on 15th February 1999. The Applicant was granted unconditional stay later in the year.

22.The Respondent could not write English and the Applicant could not write Chinese. According to the Applicant, he proposed to write the Letter in English and have the Respondent verify the contents with someone who understood the language. The Respondent agreed and after having an opportunity to confirm its contents, he put the firm's chop on the Letter and signed his name on it in the Applicant's presence. The Applicant had no idea why the Respondent wrote the Chinese characters at the bottom of the Letter and at that time he did not ask what they meant.

23.The Respondent's case was that at that time, the Applicant informed him that he wanted to go to Thailand to get his passport and the Letter was to enable him to get a visa to go to Thailand. At first the Respondent refused to help the Applicant who was just a casual worker and not his employee. The Applicant told him that if HK$12,000.00 was not stated on the Letter, he could neither get his passport nor stay in Hong Kong. The Respondent was concerned of his legal responsibility if he signed the Letter. In examination-in-chief, he said that the monthly amount was not correct and he would be in big trouble if he signed. As the Applicant was a casual worker, there was no reason to put such monthly amount in the Letter. In cross-examination, the Respondent said that when he signed the Letter, he did not know its full contents. No one explained the Letter to him and not knowing any English, he did not know the stated amount of HK$12,000.00 was a monthly sum. Out of kindness, he decided to help the Applicant and he did not mind whether the sum stated were the daily wages of a casual worker or other form of wages or even if the sum stated was HK$100,000.00.

24.After the Applicant begged him for the whole day, the Respondent relented and signed and put his firm's chop on the Letter. Afraid that the Applicant might trick him or rip him off, he put down Chinese characters "此人暂在本公司工作" (translated by the court interpreter as "this person was working for me for the time being" in the course of evidence) on the bottom of the Letter. By these Chinese characters, the Respondent intended to mean that the Applicant was a casual worker who was asked to work only if there was a work order. In cross-examination, the Respondent said that he casually wrote the Chinese characters to avoid further trouble and to avoid the Applicant ripping him off. However, on re-examination, the Respondent said that he had no idea of the contents of the Letter, so he could not have been suspicious. It did not occur to him to ask someone to explain the Letter to him.

25.The Applicant denied the Respondent's assertions, in particular the allegation that the Letter was for him to go to Thailand for a passport. He said that the purpose of the Letter was for his application for unconditional stay and not for a passport. He already had his Pakistani passport.

Accident

26.According to the Applicant, at about 1:00 p.m. after finishing his lunch on 13th March 1999, he worked at the Respondent's garage. A 16-tonne lorry was parked on the main road outside the garage. The Applicant was instructed to remove the tyres of the lorry. He removed the screws of the offside rear inner tyre using a pneumatic screwdriver and squatted down. Just as he was trying to lift the tyre in order to remove it from the axle of the lorry, his right foot slipped on the wet and slippery road surface causing him to sprain his back, thereby sustaining back and right toe injuries. The Applicant agreed that there was no visible injury. At the time of the accident, the Respondent was talking with the lorry driver and checking the battery. They were on the same side of the lorry as the Applicant standing two to three metres away. The Respondent came and picked him up.

27.The Applicant did not know how his foot slipped but the road was wet and there were concrete and sand where his foot landed. He was in such severe pain that he did not check what made him slip. He said that one's foot would slip where there was sand and concrete on a wet road. There had been light rainfall and drizzle before lunch. A memo from the Hong Kong Observatory dated 10th March 2003 (page 26a of Bundle D) confirmed that at about 11:00 a.m. to 12:00 noon, the weather condition was "drizzle" with trace rainfall. The memo further stated that in Tuen Mun, rainfall was 0 mm but noted that due to imprecision of instrument, rainfall less than 0.5 mm could not be detected. The Applicant denied that the accident was due to his hand/foot incoordination as he was balanced when lifting the tyre.

28.The Respondent disagreed with the Applicant's account and suggested that he made it up. The day was dry without water or grease on the road surface. He said that shortly after 2:00 p.m. on 13th March 1999, the Applicant walked into the shop from outside and sat on a chair. The Respondent asked him what was wrong. The Applicant told him when he squatted down outside the shop, he felt pain to his lower back. The Applicant did not mention pain in his right leg toe. The Respondent examined his back and did not see any sign of wound or reddish area. He gave the Applicant medicated lotion to apply on the area. The Applicant sat for a while and told the Respondent he was leaving. He did not return to work.

29.In his witness statement, the Respondent said there was no mention of a vehicle tyre. He saw that the tyre of the vehicle had not been moved but 4 or 5 screws had been taken out with 3 to 4 screws still at the axis. However, on a question from the court, the Respondent said that at that time there was a lorry at the entrance of the garage. On re-examination, he further said that there was a vehicle there and the Applicant was there just to remove the screws. Then the Applicant complained of pain. The Respondent could not remember whether he gave instructions to the Applicant. But if there was work to be done, the Applicant had to do it.

Post-accident

30.The Applicant said that after the accident, the Respondent being uninsured did not want the Applicant to go to a hospital. At first the Applicant who was in pain wanted the Respondent to call an ambulance. The Respondent begged him not to and told him to see a bonesetter, promising to pay the bonesetter's charges. The Respondent then asked his neighbour who owned a truck to send the Applicant to a bonesetter, namely, Ng Po Shui Bonesetter Clinic in Tuen Mun, for treatment. This was the Applicant's first attendance at a bonesetter. He explained the treatment given to him, including steaming with hot towel, massaging after putting on oil and sticking cups on the affected painful parts. The bonesetter also massaged his right foot toe and asked him to return the following day. Thinking that his injuries were not serious, the Applicant did not insist on being sent to a hospital. He did not feel well on the following day, so he attended the bonesetter again for treatment. The Applicant paid HK$300.00 for each of the two visits to the bonesetter (see receipts by Ng Po Shui Bonesetter Clinic dated 13th and 14th March 1999 which referred to "waist sprain" - pages 15 and 17 of Bundle D).

31.The Applicant further sought private medical treatment from Dr James Wong whose clinic was close to the Applicant's home on 15th March 1999 and was given an injection to ease his pain. He was given sick leave for two days from 15th to 16th March 1999 (see certificate by Dr James Wong dated 15th March 1999 which referred to "lumbago" - page 6 of Bundle D). The Applicant paid Dr Wong's fees of HK$220.00 (see receipt by Dr Wong dated 15th March 1999 which referred to "lumbago" - page 26b of Bundle D).

32.The Applicant said that he gave the originals of the aforesaid certificate and receipts to the Respondent on 17th March 1999 at 10:00 a.m. The Respondent paid him two weeks' wages of HK$6,000.00. Despite the injection, the Applicant's pain persisted. The Respondent asked him not to go to hospital. But the Applicant told him he had more pain and had to go to hospital. The Applicant attended the Accident and Emergency Department of Tuen Mun Hospital on 17th March 1999. He was treated and was discharged later on the same day (see medical certificate from Tuen Mun Hospital dated 17th March 1999 which referred to "back pain" - page 7 of Bundle D).

33.On the other hand, the Respondent denied sending the Applicant to see the bonesetter. He said that on 16th March 1999 the Applicant called him to say he was fine and to ask whether there was any work for him and that he would return to work on 17th March 1999. He told the Applicant there would be work and he could return on 17th March 1999.

34.The Respondent said that the Applicant returned to work at 9:00 a.m. on 17th March 1999 but he only did trivial work. Then he sat or lay down to read a book. At about or before 11:00 a.m., the Applicant sat on his knees and then stood up, telling the Respondent that he felt pain and would not work. He asked for his wages and the Respondent paid him HK$175.00 being half day's wages. The Applicant then left the shop without returning for work again that day. The Respondent denied receiving the certificate and receipts of the bonesetter and Dr James Wong from the Applicant.

35.The Respondent further said that about one week later, the Applicant came to the shop and gave him several pages of doctors' papers showing he had sick leave from 17th March 1999. Since then, the Applicant kept passing on doctors' papers to the Respondent, sometimes through his friends. On one occasion, the Respondent told the Applicant's friend to tell the Applicant not to fool with him. In or about July 1999, Cheung Man (Pakistanian) and Ah Wah called the Respondent to have tea at Kam Do Po Tea Restaurant. The Applicant was not present. The Respondent asked Cheung Man what the Applicant was up to and Cheung Man replied that the Applicant demanded payment of HK$100,000.00 whereupon he would tell the doctor he was fine. The Respondent said he had no money and in truth the Applicant had not been injured. However, to avoid trouble, he could gather HK$30,000.00 for the Applicant. Cheung Man told him that the Applicant said that without HK$100,000.00, he would play with the Respondent until he was dead. The Respondent said he felt intimidated.

36.The Respondent said that the Applicant kept sending doctors' papers to him till 30th August 1999. On 3rd October 1999, the Applicant telephoned the Respondent to ask if there was work. The Respondent replied that he did not have sufficient work and would not employ casual workers.

37.The Applicant agreed that after 7 to 10 days, the Applicant went to the Respondent to present the originals of the sick leave certificates to him. He had also asked his friend Altafamed to pass sick leave certificates to the Respondent once or twice. However, he did not know Cheung Man or Ah Wah and denied ever threatened the Respondent or demanded payment from him.

Credibility of witnesses

38.I was impressed with the Applicant as a witness, and I find him to be truthful and reliable. He was not shaken in cross-examination and he was adamant in the truth of his version, which was largely supported by :

(a) the Applicant's own declaration dated 11th August 1999 and supplemental declaration dated 12th August 1999 made pursuant to investigations by the Labour Department;

(b) the Occupation Hygiene Inspection Report dated 17th August 1999 compiled by P. K. Tung of the Labour Department;

(c) the Accident Report dated 31st August 1999 compiled by Tang Siu-wai of the Labour Department.

More importantly, the Respondent's declaration dated 12th August 1999 made pursuant to investigations by the Labour Department is also largely consistent with the Applicant's version of the accident.

39.The Respondent was evasive in giving evidence. I do not find him to be a truthful or reliable witness. I do not propose to set out all the reasons for such finding but the main reasons were :

(a) I do not accept the Respondent's allegation that the Applicant was a casual worker with daily wages of HK$350.00 working for a limited number of days each month only whenever there was work.

The Respondent himself admitted that he had no other employee and he employed the Applicant to relieve him in his work as his physical strength was diminishing. Given this background and the nature of the Applicant's work (which is not disputed), I accept that the Applicant worked full-time whilst employed by the Respondent and he was not a casual worker. Further, he had prior experience in this trade and had previously commanded a salary of about HK$12,000.00 per month. There is no justification (and the Respondent has not demonstrated any) for the Applicant to accept a job as a casual worker at an uncertain and reduced pay.

Whilst I do not find the entries in the Applicant's Hong Kong Bank passbook particularly helpful, they do not contradict the Applicant's case. The Applicant's explanation of his wages and benefits remained clear and steadfast under vigorous cross-examination. On the other hand, the Respondent did not give any evidence as to his records of the number of days the Applicant worked.

The Respondent's business being a modest establishment, I do not find anything untoward as regards the fact that the Applicant's wages were paid in cash or there was no written employment contract.

On the balance of probabilities, I accept the Applicant's version;

(b) I do not accept the Respondent's explanation as to why he signed the Letter.

The Applicant said that the Letter was required and submitted for his application for unconditional stay. Independent documentary evidence from the Immigration Department showed that an employer's testimonial would be useful to prove 7 years' continuous ordinary residence in Hong Kong, a requirement for such application. The Applicant now has unconditional stay. I find his explanation credible.

On the other hand, the Respondent's explanation that the Applicant persuaded him to sign the Letter for the purpose of going to Thailand to get his passport is implausible. The Applicant's evidence that he has his own Pakistani passport (which he used to come to Hong Kong) and that he was entitled to work in Hong Kong irrespective of whether his stay was conditional or not, which evidence was uncontroverted, suggest that the Respondent's explanation is implausible.

Furthermore, the Respondent could surely read the arabic monetary figure of "HK$12,000.00" on the Letter. Indeed, in his examination-in-chief, the Respondent referred to this sum as a monthly amount although he said it was incorrect. He did not explain how he knew it was a monthly sum. Later he sought to retract this in re-examination by saying that he was not aware of the contents of the Letter or that it was in relation to the Applicant's employment.

If, as the Respondent suggested, there was never any agreement or understanding between the parties in relation to payment or otherwise of a sum of HK$12,000.00 whether on a monthly or other basis or at all, I find it very surprising and, indeed, unbelievable that he would sign the Letter without either seeking a verification of its contents or including more precise qualifications. This is particularly so, when even on his own case, he knew that the Letter was for official purposes, namely, to assist the Applicant to get a visa to Thailand. Further, the Respondent's evidence was that he was so cautious as to mull over the matter for a whole day before signing, and he was anxious that the Applicant might trick him or rip him off (although he did try to retract in re-examination by saying that he was not suspicious as he did not know the contents of the Letter).

Again, on the balance of probabilities, I accept the Applicant's version in respect of the Letter.

(c) I do not accept the Respondent's description of the accident.

As discussed above, the Applicant's version of the accident is not only largely supported by the Accident Report, the Occupation Hygiene Inspection Report and the Applicant's own declarations but by the Respondent's own declaration as well. His version is consistent and cogent.

The Respondent's denial of the accident is implausible. Even on his own evidence, he accepted that there was a lorry parked at the entrance of the garage. The Applicant was there just to remove the screws (although the Respondent was not clear whether he gave the relevant instructions). Some of the screws had been taken out. The Applicant told him that he felt pain and at that time the Respondent was checking the battery on another vehicle. Such evidence, which largely came out in re-examination, echoes the relevant parts of the Applicant's case. It is different from the Respondent's witness statement and earlier evidence that he was inside the shop and the Applicant simply walked into the shop from outside and complained of pain. It is implausible to contemplate that an employer who was concerned enough to inspect the Applicant's back and to give him some medicated oil would not ascertain the cause of the pain, particularly as the Applicant was at work on that day. There is no evidence from the Respondent that he made such enquiries.

The Respondent's denial of the accident is inconsistent with his own declaration. Although he admitted that he signed the declaration, he disowned the same saying that he had no option but to sign his name to what was written by the Labour Officer. However, there is no evidence of any reason why the Labour Officer who had no interest to serve would want to mislead him. It is obvious from some of the questions and answers in the declaration that the Respondent must have supplied the relevant information. Indeed, he confirmed in cross-examination that he was asked questions 1 to 3 and 5 to 7 as set out in the declaration and he gave the answers to these questions as recorded therein. I find the Respondent's explanation unbelievable and self-serving. In making this observation I have borne in mind that the Applicant's declaration given to the Labour Officer was dated 11th August 1999, a day before the date of the Respondent's declaration.

In the Form 2 dated 1st April 1999 and submitted to the Labour Department (pages 12-15 of Bundle B) by the Respondent and signed by him, the description of the accident was "change tyre" and it was stated that the accident occurred in the course of work. The Respondent's explanation was that such Form 2 was filled in and completed by the sales person of the insurance company. I cannot see how such a sales person would know the accident concerned "change tyre" unless he was so told. I find the Respondent's explanation implausible.

The Applicant's description of the accident is also consistent with his receiving treatment for waist sprain from the bonesetter on 13th and 14th March 1999 and for lumbago from Dr James Wong on 15th March 1999. There is no evidence to even remotely suggest that the diagnoses by the bonesetter, Dr James Wong and the doctors of Tuen Mun Hospital were not genuine.

On the balance of probabilities, I accept the Applicant's version of the accident.

Findings of fact

40.I make the following findings of fact :

(a) The Applicant suffered an accident on 13th March 1999 at about 1:00 p.m. when his right foot slipped on the road surface whilst he was trying to lift the offside rear inner tyre of a 16-tonne lorry parked outside the Respondent's garage in order to remove it from the axle of the lorry. He sprained his back and suffered personal injuries.

(b) Immediately after the accident, the Respondent arranged for the Applicant to see a bonesetter for treatment. The Applicant attended the bonesetter on 13th and 14th March 1999, Dr James Wong on 15th March 1999 and Tuen Mun Hospital on 17th March 1999 for treatment of the personal injuries he suffered as a result of the accident.

(c) On 17th March 1999, the Applicant gave the receipts of the bonesetter as well as the receipt and certificate from Dr James Wong to the Respondent who paid him wages of HK$6,000.00.

(d) Neither the Applicant nor his friends or agents threatened or intimidated the Respondent as alleged by him.

(e) At the material time, the Applicant was employed by the Respondent as a full-time car mechanic engaged in the repair and changing of vehicle tyres and in the changing and charging of vehicle batteries.

(f) At the material time, the Applicant was paid a basic salary of HK$12,000.00 per month by the Respondent. He was also entitled to year-end bonus which was equivalent to his basic salary for a month. The Applicant was only entitled to year-end bonus after he has worked a full year with the Respondent. His salary was paid on the 1st and 15th days of each month in cash by the Respondent.

Conclusion

41.It appears from paragraph 1 of the Amended Answer that the Respondent did not dispute that the Applicant was his employee save that he alleged that the Applicant was a casual worker. Mr Yun confirmed that there is no dispute that the Respondent was the employer of the Applicant at the material time. In any event, the definition of "employee" in section 2(1) of the Ordinance does not exclude casual workers employed for the purpose of the employer's trade.

42.In light of the above findings, particularly as I accept the Applicant's version of the accident, I further find that the accident arose out of and in the course of his employment. The Applicant was cross-examined in some detail as to what was the actual cause of the accident, whether it was due to the wet road surface, the sand and concrete on the same or his own incoordination of hand and feet. Mr Yun agreed that these considerations are irrelevant in a claim for employees' compensation (except for their relevance to credibility of witnesses) where the crucial issues are of time, place and activity.

43.Further, as I accept the Applicant's version of the accident, I also accept that the Respondent was standing near him when the accident happened and it was the Respondent who came to help him up when he slipped his foot. In the circumstances, the Applicant was well aware and had notice of the accident for the purposes of section 14 of the Ordinance.

44.In the circumstances, there will be judgment on liability in favour of the Applicant against the Respondent for compensation to be assessed. There is no reason why costs should not follow event. I therefore make an order nisi that costs of the action on liability be paid by the Respondent to the Applicant, to be taxed if not agreed, with certificate for counsel. As the Applicant is legally aided, his own costs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. M. C. Chiu instructed by the Director of Legal Aid for the Applicant.

Mr E. Yun of Messrs. Yun & Co for the Respondent.