Lee Chun Hing v. Chevalier (Construction) (Hong Kong) Ltd. and Others

DCEC000685/1998

DCEC685/1998

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 685 OF 1998

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IN THE MATTER OF AN APPLICATION BETWEEN

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Coram: H.H. Judge C.B. Chan in Court

Date of Hearing: 3 September 2002

Date of Handing Down of Judgment: 27 September 2002

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Judgment

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1.This is an application for employee's compensation by Lee Chun Hing on behalf of himself and other dependants of Lee Chung Tsan Deceased under section 6 of the Employees Compensation Ordinance Cap 282. The Deceased was fatally injured in an accident on the 1st September 1998 at a construction site at the location of a wall which had a scaffold next to it between two construction sites, namely that for a development called Galaxia (hereinafter called the "Galaxia Site") and the site for a development called Bel Air Heights (hereinafter called the "Bel Air Heights Site").

The Facts

2.The 3rd Respondent was the principal contractor for the Galaxia Site. The 2nd Respondent was the sub-contractor of the 3rd Respondent for the construction and dismantling of the scaffolding at the Galaxia Site. The 2nd Respondent subcontracted the dismantling work of the scaffolding of the Galaxia Site to the 1st Respondent.

3.The principal contractor of the Bel Air Heights Site was the 4th Respondent. The 5th Respondent was the sub-contractor of the 4th Respondent in respect of the scaffolding work of the Bel Air Heights Site.

4.The location wherein the accident happened was at a location between the two construction sites, namely the Bel Air Heights Site and the Galaxia Site. The two sites are separated by an access road within the boundary of the Galaxia Site. 3 blocks of residential buildings were under construction at the Bel Air Heights site. Blocks A and B are high-rise residential buildings with 48 floors each. Block C is a 4-floor residential building situated next to the access road lying across Lung Poon Street and Fung Tat Road, separating the Bel Air Heights Site and Galaxia Site. The Galaxia Site and the Bel Air Heights Site are separated by a concrete wall of about 4.3 meters high, on the side of the access road nearer to the Bel Air Heights Site. There was a scaffold along the side of this wall facing the Galaxia Site. The scaffold was about 5 meters high. The wall was built by the 4th Respondent and the scaffold was built by the 5th Respondent.

5.The Deceased was a two-way permit holder who came from the mainland to visit his ailing father who had just had a heart operation. It was unlawful for the Deceased to work in Hong Kong.

6.On the 9th January 1998 at about 4 p.m. Chan Wing-fai who was a workman of the Galaxia construction site in Diamond Hill, Kowloon, was picking up bamboo poles left on the ground in the construction site at Block 3 of the Galaxia Site. When he was collecting the bamboo poles, he saw a male wearing a yellow safety helmet. He was standing near the scaffolding at the wall built by the 4th Respondent that was next to the assess road between the two sites. Chan Wing-fai saw this man climbing up the scaffolding along the wall up to 4 or 5 meters. Because Chan Wing-fai was picking up the bamboo poles and the poles could hit this man, Chan Wing-fai spoke loudly to him and told him not to climb close to the bamboo poles. Then Chan Wing-fai continued to work and just a few seconds later, he heard a loud "Bang" and saw the male whom he had seen climbing up the scaffolding next to the wall had fallen to the ground in the Galaxia Site opposite to Block 4 of the Galaxia Site. The man was the Deceased Lee Chung Chan. He had been pierced in his chest by a falling bamboo pole and fell to the ground. Lee Chung Chan subsequently died.

The Issues

7.Whether the Deceased died in an accident in the course of work and arising out of work?

8.Were any of the Respondents the employer of the Deceased? If so, which of the Respondents was the employer of the Deceased?

9.What were the monthly earnings of the Deceased and the amount of compensation to be assessed?

The Evidence

10.At the commencement of the trial, the Applicant's Counsel informed the Court that the Counsels of all the parties have agreed that the evidence contained in the witness statements and all other statements contained in the Bundle of Agreed Documents are to be the evidence of this case. There would be no oral evidence apart from the evidence of the Deceased's father and the Deceased's widow. Hence the evidence of the case comprise of the documents in the Agreed Bundle as well as the oral evidence of the Deceased's father the Applicant in this case and the Deceased's widow.

The 1st Issue

Evidence of Chan Wing-fai

11.The evidence related to this comes from Mr. Chan Wing-fai as contained in his statement to the Police on the 9th January 1998 found at pages 14 to 21 of the Bundle of Documents Box 1. Mr. Chan stated that he was an employee of the 2nd Respondent. He was responsible for collecting the bamboo poles on the ground of the Galaxia Site. On the 9th January, there was dismantling of scaffolding at Block 3 of the Galaxia Site starting at 8:30 a.m. until 2:30 p.m. The dismantled poles were sent to the ground by crane. When he collected the poles at 4 p.m., the dismantling of scaffolding had stopped. At that point, he was sent to pick up the bamboo poles left on the ground. His evidence is already stated aforesaid related to the facts of this case.

12.A more detailed account is contained in the Declaration made by Chan Wing-fai, at page 38 of Box 1 of the Bundle of Documents, Chan Wing-fai stated that on the day in question after he had lunch, he returned to the Galaxia site. He was told to pick up the bamboo poles, which were scattered on the ground between Blocks 3 & 4 of the Galaxia Site. He had to pick up each bamboo pole of about 30 feet long and gather them together in a bundle and tie them with nylon strips to be picked up by a lorry. At the time it was extremely windy and he could hardly stand straight and manage to hold the 30 feet pole. There were bits of concrete and also wooden boards falling down. He was the only one working. He saw a few workers working on metal bars in the Bel Air Heights Site at a distance of about 60 feet from him. At around 3:15 p.m. there was a lorry, which came into the Galaxia Site driving towards Block 2 and 3. He told the lorry driver not to drive in as the road was strewn with bamboo poles. He pointed to the poles on the ground. The lorry drove away. At that point he left the construction site to purchase a canned drink. He took it back to the place where he had been working and started to drink. At around 4 p.m., he suddenly saw a workman climbing up on a scaffold about 4 to 5 meters up from the ground. That is the scaffolding near the Bel Air Heights Site. He saw the worker was climbing on the scaffold to come towards the Galaxia site. The workman was about 50 to 60 feet from him. He shouted to him to stop him coming and cried out "Do not to come over as the bamboo pole I am carrying could hit you." He then did not pay any further attention to this worker. After a few seconds he heard a "Bang". He turned his head and looked and saw the man had fallen on the ground. He saw a bamboo pole had pierced the ground at an angle. He saw that the metal workers were not at their place of work. There were no workmen in the Galaxia Site who were close to him. The wind was blowing hard. Chan Wing-fai drew a diagram at page 41 of his Declaration showing the position of the Deceased in relation to the two Sites and the place of work of the metal workers.

Evidence of Leung Chun Hing

13.Leung Chun Hing the Deceased's father and the applicant had stated in his first witness statement starting at page 14 of the Bundle of Witness Statements that Lee Chung Tsan the Deceased, came to Hong Kong to live with him since he had received a heart operation in August 1997. Every morning the Deceased left home at 7 a.m. and returned at 6 p.m. The Deceased did not tell him where he went. He further stated that he understood from the widow of the Deceased that the Deceased came to Hong Kong to work as a construction worker. She told him that he earned HK$250 per day. However, just before the commencement of trial, his Counsel applied and was granted leave to file a Supplemental Witness Statement of the Applicant. In this Supplemental Witness Statement and in his oral evidence, he stated that before the accident, the Deceased had mentioned to him that he had found work on a construction site. He did not know which construction site. He also remembered that on a day before the accident, although he could not remember the date, the Deceased told him that in three days time he would be paid his salary. He would earn HK$7,000.

14.However it is noted that in his statement to the Police, at page 11 of Box 1 of the Bundle of Document, the Applicant in answer to the questioning of the Police stated that he did not know if the Deceased had any earnings in Hong Kong. Upon cross-examination by Mr. Lam Counsel for the 1st, 2nd and 3rd Respondents as to why he did not tell the Police that his son had told him he would earn $7,000, the Applicant stated that he forgot. Under cross-examination by Mr. Gidwani, Counsel for the 4th and 5th Respondents, Mr. Gidwani referred the Applicant to an answer given by him at the Coroner's Inquest at page 120 of Box 1 of the Bundle of Documents where the Applicant stated that when the Deceased left the house at 7 a.m. in the morning and returned at 6 p.m. the Deceased did not tell him where he went. The Applicant answered that the Deceased did not tell him where he went.

15.In the light of the inconsistencies in the evidence of the Applicant aforesaid I have to decide what weight if any to put on the evidence of the Applicant as stated in his Supplemental Witness Statement aforesaid. In my view, as the Applicant had consistently stated before the date of the Supplemental Witness Statement that he did not know if the Deceased had any income in Hong Kong and that he did not know where the Deceased went when he left home at 7 a.m. and returned at 6 p.m. every day, I am not able to put any weight on the evidence of the Applicant in his Supplemental Witness Statement. Were such facts in the Supplemental Witness Statement true, it would not have taken so long for the Applicant to remember it.

16.Hence the only evidence of facts on which to base a finding on the 1st Issue is the evidence of Chan Wing-fai. He stated that the Deceased appeared to be climbing up on the 5 meter high scaffolding next to the wall which separated the Bel Air Heights Site from the Galaxia Site with a yellow safety helmet on his head. Some support can be drawn from the evidence of the Applicant that on a daily basis the Deceased left home at 7 a.m. and returned home at 6 p.m.

17.In my view, there is sufficient evidence to draw an inference, on a balance of probability, that at the time of the accident the Deceased was in the course of employment. The fact that the Deceased was wearing a yellow safety helmet, and climbing a scaffolding would be facts on which such an inference could be drawn. This is so even though there is no evidence as to the purpose of his climbing the scaffold. It would be uncommon and strange for someone not engaged in work to have a safety helmet on and to climb a scaffold in a construction site. I make this finding despite having regard to the fact that the Applicant is a two-way permit holder and is not legally entitled to work in Hong Kong. Section 5(4)(a) of the Employees' Compensation Ordinance states: -

"(4)	For the purposes of this Ordinance -
(a)	an accident arising in the course of an employee's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment;

18.Hence I find that on a balance of probability the Deceased was fatally injured in the accident on the 9th January in the course of employment and the accident arose out of his employment.

2nd Issue

19.The relevant evidence is from the witness statements that had been agreed and from other statements and documents in the Agreed Bundle of Documents.

Evidence of Chu Kwok Leung

20.He is one of the directors and shareholders of the 1st Respondent. The 1st Respondent was a subcontractor of the 2nd Respondent who was a subcontractor of the 3rd Respondent, the principal contractor of the Galaxia Site aforesaid.

21.Between the Galaxia Site and the Bel Air Heights Site was a concrete wall, which was 4.3 meters high (hereinafter referred to as "the wall"). There was a gangway beside the wall. The wall was built by the 4th Respondent and or its subcontractor. A scaffolding was constructed on the wall. To his knowledge, that scaffolding was used to finish the outer work of the building of the Bel Air Heights Site. Since the wall and the scaffolding were situated within the area of the Bel Air Heights Site, only the 4th Respondent or its subcontractors needed to use the wall and the scaffolding. There was no work of the Galaxia Site, which required the use of the wall and the scaffolding. Therefore the workers of the1st Respondent did not need to use the wall and the scaffolding. At about 2 p.m. on the 9th January, the workers of the Galaxia Site informed him that since it was windy, the workers stopped the dismantling work of the scaffolding at about lunchtime. At the time of the accident, there was no work of dismantling of the scaffolding at the Galaxia Site. After he was informed of the accident, he went to Queen Elizabeth Hospital to see the Deceased. He did not know the Deceased and he has not seen the Deceased working at the Galaxia Site before. The 1st Respondent has never employed the Deceased.

Evidence of Wong Kan Yung

22.He is one of the Directors of the 2nd Respondent. The 3rd Respondent, the principal contractor of the Galaxia Site had subcontracted the scaffolding work to the 2nd Respondent. The 2nd Respondent subcontracted the dismantling work of scaffolding to the 1st Respondent.

23.He did not know the Deceased and has never seen the Deceased work at the Galaxia Site. He had never employed the Deceased.

Evidence of Chang Tat Wai, David

24.He is an administrative manager of the 3rd Respondent. He is responsible for the administration of the company. The 3rd Respondent is the principal contractor of the Galaxia Site. They had subcontracted the work of erecting and dismantling of the bamboo scaffolding at the Galaxia Site to the 2nd Respondent. The 2nd Respondent had subcontracted the dismantling of scaffolding to the 1st Respondent. The Deceased was not an employee of the 3rd Respondent prior to or at the time of the accident. A copy of the employee's record of the 3rd Respondent for the period covering the date of the accident was annexed to the witness statement. This showed that the Deceased was not an employee of the 3rd Respondent at any time before and at the date of the accident.

Evidence of Cheung Siu On

25.He is the sole proprietor of the 5th Respondent. The 5th Respondent subcontracted a scaffolding work in respect of the Bel Air Heights Site to him. Pursuant to the contract, he may not employ anybody who is not a holder of an identification document recognized by the Hong Kong SAR Government. He was well aware of the fact that under the Employment Ordinance he may not employ any visitors to Hong Kong who is the holder of a two-way permit. He stated that he had never employed any holder of a two-way permit to work for any of his projects.

26.He produced copies of the workers of his scaffolding workers during the period from 21st November 1997 to February 1998. From the record he stated that he had never employed the Deceased as a scaffolding worker at the Bel Air Heights Site.

27.He did not know the Deceased. He erected the bamboo scaffold, a single-row scaffold, at the external wall of the Bel Air Heights Site. The scaffold was 5 meters high. This scaffold was only used for the purpose of concreting and erecting formwork in Block C of the Bel Air Heights Site. One of the 4th Respondent's foremen surnamed Hui had reminded all workers at the site not to go near the accident location during the period when scaffolding was being dismantled at the Galaxia Site to avoid any accident.

Evidence of Hui Kam Piu

28.He was and still is a foreman of the 4th Respondent. The 4th Respondent was the principal contractor of the Bel Air Heights Site. The 4th Respondent subcontracted its scaffolding works at the Bel Air Heights Site to the 5th Respondent. During the period when dismantling work at the Galaxia Site was underway, he specifically instructed the workers at the Bel Air Heights Site not to go near the access road between the two sites until the dismantling work was completed. He referred to the site plan appended to his witness statement marked "HKP-2" in respect of the Bel Air Heights Site. Block C was the only area, which is close to the access road where the accident happened. On the day of the accident, no scaffolding work was being undertaken at Block C. Foundation works were undertaken at Blocks A and B.

29.On the 9th January, he was present at the Bel Air Heights Site supervising the work undertaken thereat. He recall that scaffolding workers at the Galaxia Site were carrying out dismantling work at the external walls of Blocks 4 and 5. Following his instructions, the 4th and 5th Respondents workers stayed out of the way.

30.He had caused a search to be made of the 4th and 5th Respondents' records and this confirms that the Deceased was not one of their employees. It has always been the 4th Respondent's policy not to employ illegal workers. There was a condition written into the subcontract entered into between the 4th and 5th Respondents that the 5th Respondent should comply with the employment laws of the Hong Kong Special Administrative Region. The 4th Respondent did not employ the Deceased. He did not know the reason why the Deceased was climbing up the scaffold or what he was doing there. As no work was undertaken at the fence wall at the material time, there was no reason for any worker from the Bel Air Heights Site to be present or to go near the access road.

31.As foreman of the Site, he carried out regular checks on the workers of the Bel Air Heights Site and asked workers to produce their Hong Kong identity card for verification. He had never found any worker who held a two-way permit who had been employed by the 4th or 5th Respondents.

Assessment of the Evidence

32.Mr. Cheung asked me to draw an inference that the Deceased was working for the 4th or 5th Respondent on the basis that the purpose of the scaffold was for the work to be done on the Bel Air Heights Site. He readily admitted that there is no direct evidence on this point. The Coroner's finding at page 146 stated,

"It is clear that he was doing some sort of work on the scaffold. I have not heard that he was an experienced worker. It is of course most regrettable that he took a risk working there and perhaps more regrettable that others, and we do not know who were prepared to employ an inexperienced worker to do dangerous work where he would not have been made part of the safety procedures and he would not have been fully part of any team that was given particular safety instructions, so he was at a terrible disadvantage in working in such a situation."

33.It is clear that there was no finding by the Coroner as to who employed the Deceased. It is similarly difficult for this Court to make a finding on who employed the Deceased particularly in the light of the evidence of the 1st to 5th Respondent's witnesses disclosed in witness statements that had been admitted into evidence by agreement. Each of Respondents stated that that Respondent did not employ the Deceased. There is no possibility to gainsay the evidence of the witnesses aforesaid, as there was no cross-examination of the witnesses. The truth of their evidence-in-chief that had been admitted was not challenged. In the light of that there is no basis for me to make a contrary finding of fact from the facts stated in the respective witness statements of the representative of each of the Respondents. Each of them had stated that the contents of their respective statements are true. The case poses insurmountable difficulties for Mr. Cheung, Counsel for the Applicant. For a start, he did not have any instructions on which to base his cross-examination of these witnesses. However, the fact that their evidence had not been challenged makes it impossible for me to make any adverse finding as to the veracity of their evidence in their respective statements.

34.The only basis that Mr. Cheung relies on for me to make a finding on this 2nd Issue is that the scaffold belonged to the 4th or 5th Respondent. In the light of the admitted evidence I am not able to draw such inference.

35.I have to dismiss the Action and I make an Order nisi that the Applicant do pay the 1st to the 5th Respondents for the costs of the Action to be taxed if not agreed with Certificate for Counsel. The Applicant's own costs be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Kam K.L. Cheung inst'd by M/s Yip, Tse & Tang assigned by DLA for the Applicant.

Mr. Paul Lam inst'd by M/s Tsang, Chan & Wong for the 1st, 2nd and 3rd Respondents.

Mr. Victor Gidwani inst'd by M/s Deacons for the 4th and 5th Respondents.