Yiu Pau Yau v. Co-ray Design & Construction Ltd

DCEC 1098/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1098 OF 2004

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In the matter of an Application between:-

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Coram: Deputy District Judge W.C. Li in Court

Date of Trial: 14^th November 2006

Date of Handing Down Judgment: 22^nd November 2006

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JUDGMENT

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1.This was an application by the Applicant for employees’ compensation under the Employees’ Compensation Ordinance, Cap. 282, against the Respondent as his employer. The Applicant was a carpenter and on 3 June 2003, while he was working at the employees’ quarters of Ocean Park, his left hand was injured by the spinning blade of an electric trimmer machine with laceration of the left index finger with tissue loss and tendon injury.

2.The Respondent was the contractor for the said renovation work at the employees’ quarters of Ocean Park. The Respondent denied that the Applicant was its employee. No List of Earnings was filed by the Respondent for the reason that the Applicant was the employee of a sub-sub contractor called “中原傢俬工程公司” (“Chung Yuen”) and the Respondent could not comment on the Applicant’s earnings.

3.The Applicant was asked to work for the Respondent by a Mr. Choy Ka Wai  (“Choy”) two weeks before the accident. The working hours were from 9 a.m. to 5 p.m. and the daily wage was $700. There was no written contract. Choy collected the pay from the Respondent and then paid him the wages for the work. He was employed as a casual worker. Before the Applicant was allowed to go into Ocean Park to work, he had to sign an attendance record kept at the security control room at the entrance. He signed in as an employee of the Respondent. He was also required to wear a work permit during the time he was working inside Ocean Park. Outside the premises where he worked, a certificate of construction was posted naming the Respondent as the contractor and Choy as the responsible person. The Applicant believed he was employed by the Respondent and not by Choy who was also an employee of the Respondent. A business registration search was made of Chung Yuen on the Applicant’s behalf and no business entity as described by the Respondent was found.

4.The Applicant was aged 50 at the time of the accident. The Applicant suffered impairment and discomfort to his left index finger, viz., residual stiffness, numb and pain, partial sensory loss, decreased range of motion, and decreased strength and dexterity. The Medical Assessment Board assessed the Applicant’s disability to be at 3% and sick leave of 78 days from 03/06/2003 to 19/08/2003 was also certified by the Medical Assessment Board to be necessary sick leave due to the injury.

5.On liability, I would find in the Applicant’s favour that the Respondent was the employer of the Applicant. Although it was Choy who engaged the Applicant to work, Choy was acting as an agent of the Respondent. I accepted the Applicant’s evidence that the daily work arrangement and deployment were made by the Respondent directly or indirectly, the tools were provided by the Applicant and also the hours of work were fixed by the Respondent. It was also my view that even if the Respondent was the principal contractor of the said work site, the Respondent would still be liable to the Applicant under the Employees’ Compensation Ordinance, Cap. 282 (“the said Ordinance”) for injury arising out of and in the course of the employment, as the principal contractor under Sec. 24 of the said Ordinance.

6.On quantum, the Respondent was liable to compensate the Applicant under Sec. 9, Sec. 10 and Sec. 10A of the said Ordinance.

7.Under Sec. 9, the monthly wages of the Applicant would be based on a 25 day working month and on this basis, the monthly wage of the Applicant would be assessed at $17,500. Based on Sec. 7(1)(b) of the said Ordinance, the computation under Sec. 9 would be $17,500  X  72 months  X 3%  =  $37,800.00

8.The sick leave compensation under Sec. 10 would be assessed at $17,500/30  X  78 days X 4/5  =  $36,400.00.

9.A breakdown together with receipts for medical expenses incurred was submitted to the court in support of the application for Sec. 10A compensation. I allow this in full in the sum of $2,080.00.

10.Judgment is therefore entered in favour of the Applicant against the Respondent in the sum of HK$76,280.00. I order interest to be payable by the Respondent on the said judgment at half judgment rate from the date of the accident to the date of handing down of this judgment and interest at judgment rate from date of handing down to the date of full payment of the said judgment sum. I also order the Respondent to pay the Applicant’s costs of this action, to be taxed, if not agreed. This cost order nisi to be made absolute 14 days after handing down.

Representation:

Mr. Lo Chi Hung of Messrs. Christopher Li & Co. for the Applicant

The Respondent, not legally represented, absent from the trial