Lam Chi Keung v. Kin Shing Construction Co Ltd and Others
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DCEC 1375/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 1375 OF 2004 --------------------- IN THE MATTER OF AN APPLICATION BETWEEN:-
------------------- Coram : His Honour Judge Stanley Chan in Court Date of Trial : 3rd 4th, 10th and 11th April 2007 Date of Handing Down of Judgment : 15th June 2007 __________________ JUDGMENT __________________ 1.This is an application by the Applicant for employees’ compensation under the Employees' Compensation Ordinance, against the three Respondents. 2.At the material time, the Applicant was the ‘machinery supervisor’ in the employ of Chiu Wai Holdings Ltd (‘Chiu Wai’) at a construction site which was situated at the West site of Tung Tau Cottage Area, Kowloon City (‘the Site’). Chiu Wai was established by the brother of the Applicant, Lam Chi Chiu (‘LCC’). In the statement of Lee Kwok Hing, the safety officer of Kin Shing Construction Co Ltd (‘Kin Shing’), he was told by LCC that the Applicant was a foreman of Chiu Wai [p.27 of the bundle]. The Applicant joined Chiu Wai on 13 November 2002 and claimed to have a monthly salary of $20,000 plus $1,500 allowance. The salary was all inclusive. The primary duty of the Applicant was to maintain and repair concrete mixers and conveyors. Prior to his joining Chiu Wai, the Applicant had bought a jeep with the registration number EH 769 for his private use. The jeep was registered in the Applicant’s name since 21 March 2000 [p.161 of the bundle]. It was alleged that when he joined Chiu Wai, the Applicant agreed to have his own jeep used exclusively for the business of Chiu Wai and was to be paid a rental of $1,500 per month. The Applicant was required to work on Sundays. 3.Chiu Wai has ceased to do business and it was alleged that LCC has gone to Scotland for good and the parties concerned, including the Applicant, cannot locate LCC. In the circumstances, LCC was not called as a witness in the present proceedings in which his brother is the Plaintiff. 4.It was admitted that 1st Respondent and 2nd Respondent was the principal contractor and the sub-contractor on the site respectively. 5.On 24 December 2002, the Labour Department received the Form 2 [at pp.84 to 85 of the bundle] prepared by one Mr Tsoi of Kin Shing. At Section D in the said Form 2, it was stated that the accident occurred in the course of work, and the accident was described in the following terms: “when carrying out the repairing and maintenance work underneath the vehicle, the vehicle slipped forward and pressed onto the back.” 6.There was no dispute as to the causation of the injury inflicted upon the Applicant. The Applicant suffered serious personal injuries. He was diagnosed with acute traumatic fracture of the spine caused by a crush injury. The Applicant had surgery for internal fixation of the fracture and poster spinal fusion. He is now wheelchair-bound. 7.On 17 November 2004, the Applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board to have 100% permanent loss of earning capacity [p.93 of the bundle]. The injury was fractured L1 resulting in paraplegia. The Applicant has been unemployed since the accident and lives on Comprehensive Social Security Assistance. The issues 8.There are 3 issues in this case:
9.The first important issue for this Court to decide is whether the accident was occurred in the course of employment of the Applicant. The Respondents denied that the accident was occurred in the course of employment, and hence should not be liable for compensating the injury sustained by the Applicant, even though it was not disputed that the Applicant was in the employ of Chiu Wai at the material time. The Respondents alleged that what the Applicant did in repairing the jeep had nothing to do with his employment with Chiu Wai and hence he falls outside the ambit of the provisions of Cap 282 in terms of compensation. And even if the Respondents were held liable, it was argued that the monthly salary of the Applicant at the material time should be $12,000, not $20,000 as claimed by the Applicant. Evidence 10.The Applicant adopted his witness statement dated 12 December 2005 [pp.14 to 18 of the bundle] and gave evidence in court. He said LCC is his younger brother. Through his friend called Ah Kwan, the Applicant came to know that Chiu Wai needed an extra hand. His duty was to maintain vehicles and machinery. The Applicant was the registered owner of a jeep EH 769 which he bought 3 years ago. He leased the jeep to Chiu Wai for $1,500 per month. He drove the jeep to the construction site on the first day of his duty on 13 November 2002. The Applicant kept the jeep at the site and left the car keys in the office of the company. It was the boss or other employees who used the jeep. Chiu Wai had one more company car and some construction vehicles. The Applicant used to work in vehicle garage and has about 20 years experience in maintaining vehicles. The Applicant claimed that thereafter he did not use the jeep for his personal purpose. He did not make enquiries about it nor did he have the authority to do so. 11.The Applicant described how the accident happened in his witness statement. On the day of the accident, 1 December 2002, a Sunday, the Applicant went to the construction site at about 8:00 am. He started repairing the machinery for construction work. As he was told by LCC and one other colleague on the day before the accident that the shock absorbing spring of the vehicle was broken, he needed to repair the jeep so that the vehicle could be used on the following week. 12.The Applicant got the tools from the storeroom at the site. He found there were 3 hydraulic jacks. It was drizzling at the time. He drove the jeep to the entrance of the construction site. The Applicant used rocks and wood pieces to stabilise the vehicle. Thereafter the Applicant used the 3 hydraulic jacks to jack up the jeep. He then proceeded to loosen the screws of the shock absorber. At that time, the Applicant was sitting sideways beside the offside rear wheel of the jeep. He went beneath the jeep from the offside and prepared to remove the spring. At this point in time, the Applicant found the vehicle suddenly rolled forward and the 3 jacks collapsed. The offside rear part of the jeep then landed on the right shoulder of the Applicant, pressing him against the ground in a sitting position. 13.There was no eye witness. A few minutes later, a passer-by discovered the occurrence of the accident. Police were called and at that time the applicant was semi-conscious. The Applicant was then rushed to the Queen Elizabeth Hospital for emergency treatment. The Applicant was discharged from the hospital on 26 October 2003. 14.The Applicant said that he heard from his other brother that LCC is now in Scotland. The Applicant also gave evidence in relation to his wages and allowance. The Applicant claimed that his earnings were $20,000 per month, despite the fact that the Applicant had written a note dated 22 October 2003 [at p.94 of the bundle] that his salary was $12,000. The Applicant alleged that he was induced to write this note. The Applicant also mentioned his salary of $12,000 in his statement to the Loss Adjuster [at pp.66 ad 71 of the bundle]. 15.The Applicant did not call any other witness. 16.The Respondent called 3 witnesses. Chung Yuk-hang (‘Chung’), the vice representative of Kin Shing at the site, gave evidence. He adopted his witness statement dated 9 February 2006 [pp.33 to 40 of the bundle]. At the material time, Chung was working on the East side of the site and the accident occurred on the Western area. By the time, Chung arrived at the scene, police had arrived and the Applicant had already been taken to the hospital. Chung was told by a police officer that the Applicant said to the latter that when the Applicant was replacing the tyre(s), the vehicle suddenly fell and he was injured. In the witness statement, Chung said that he saw one of the tyres of EH769 had been taken off [pp 34 & 38 of the bundle]. He however could not remember which of the 4 tyres of the vehicle was removed. Chung also said that he never saw the vehicle parked at the site overnight. He worked in the East area and when he left the site at about 7:30 pm , he would ‘patrol’ to the West area of the site. He never saw the vehicle parked overnight. Chung said that as it was not his duty to patrol, he did not patrol the site frequently, but on the average it was about 2 times out of 6 days. Chung was also present when the safety officer interviewed the Applicant. 17.The Respondent called Lee Kwok Hing (‘Lee’), the safety officer of Kin Shing, as RW2. He adopted his witness statement dated 17 February 2006 [pp.26 to 31of the bundle]. Lee was the only safety officer on the site. He was the one filled in the particulars in Form 2 [p.86 of the bundle] and he got the information, in particular, the information in Section D - Description of accident, from LCC of Chiu Wai. Upon the enquiry from the Labour Department, Lee prepared the amendment form [p.88 of the bundle] which was sent to and received by the Labour Department on 14 January 2003. On 4 December 2002, Lee prepared the Accident Investigation Report [pp.75 to 76 of the bundle]. On or about 27 May 2003, Lee received a number of documents and receipts relating to the Applicant’s MPF and salary receipts [pp.173 to 181 of the bundle]. On 25 November 2003, Lee accompanied the Loss Adjuster Philip Ng to go to see the Applicant and as a result of the interview a written statement was produced [pp.60 to 64 of the bundle]. Lee observed that the Applicant had no problem in talking and was sitting on a wheelchair. Lee mentioned that it was the wife of the Applicant who raised the issue of the ownership of the vehicle after perusing the statement. As a result, a supplemental section was inserted [p.64 of the bundle]. Lee said he saw the Applicant driving the vehicle. 18.The Respondent called the police officer PC 58670 Ho Chan Tung to give evidence. His written statement dated 4 January 2006 [pp.45 to 46 of the bundle] was adopted. Analysis of Evidence 19.There are a number of areas that I find the Applicant not a truthful witness. The Applicant in his witness statement dated 12 December 2005 claimed that in November 2002, through the introduction of a friend, he was employed by Chiu Wai which was run by Lam Chi Chiu [pp.14(A) and 19(B) of the bundle]. The Applicant further alleged that “despite the similarity in the names of Mr Lam Chi Hing [sic] and me, we are not related by blood. Before the job interview, I did not know him.” [para.8 of the Applicant’s witness statement: pp.15 and 19(C) of the bundle]. This was not the first time the Applicant denied his relationship with his brother LCC. On 25 November 2003, when interviewed by Philip Ng, the Loss Adjuster of McLarens Young International, the Applicant stated that his “daily work was arranged and assigned by my immediate superior Mr Lam who was the boss of Chiu Wai Engineering Co (I do not know his full name).” [p.66 of the bundle]. When led by his counsel in the examination-in-chief, the Applicant did not seize the opportunity to clarify the situation. In the examination-in-chief, the Applicant was simply asked whether Chiu Wai was run by his younger brother LCC and the reply was in the affirmative. However, when being cross-examined, the Applicant voiced loud and clear that LCC is his brother and was his employer. The Applicant testified that it was a slip of tongue to say that he did not know his employer’s full name. The Applicant did not give a plausible explanation as to why he wanted to conceal his relationship with his brother LCC. He alleged that he just wanted to express the employer and employee relationship more clearly. 20.The Applicant testified that on 1 December 2002 (Sunday), he arrived at the site at about 8:00 am and he started to repair the excavators on the site. After finishing those routine maintenance work, the Applicant proceeded to fix the jeep as he was told earlier on that the shock absorbing spring of the jeep was broken. He said he had bought a new spring to replace the broken one. It cost a hundred odd dollars and a receipt was given to his boss LCC. But the receipt was never produced. Nor was the fact that he bought a spring ever mentioned in his witness statement or in his examination-in-chief. For some reasons unknown, no photo of the scene was taken immediately when the Applicant was taken to the hospital. The photos enclosed in the bundle at pp.55 to 58 were taken on 2 December 2002 and the photo at p.59 on 4 December 2002 when certain tests were carried out. 21.When interviewed by the Loss Adjuster Mr Philip Ng of McLarens Young International – Hong Kong on 25 November 2003, the Applicant in his statement said that “on the day of the accident, Sunday 1 December 2002, because the machinery of my company at the work site needed not be used for the works, my boss Mr Lam did not give me assignments. Despite that, I still had to go back to the above site for routine machinery work. … By 3 pm, I had already finished checking all the 5 excavators (at both the East and West land). Because my working hours ended at 6 pm, I could not go off duty earlier. Therefore, I continued to stay at the sites on the West land to repair a vehicle (plate number EH 769). ” [p.67 of the bundle]. The Applicant further said to the Loss Adjuster that “on the day of accident, Sunday, since my boss did not instruct me not to go back to work, I went back to the site to work as usual.” [p.70 of the bundle]. The Applicant modified his version [p.72 of the bundle] by saying that “on that day, having finished checking the 5 excavators, I performed checks on the works vehicle (EH 769) whose owner was my company, because I had been told a few days before by a colleague who was an excavator operator … that the spring at the vehicle’s rear wheels had a problem.” 22.That was different from what the Applicant said in his witness statement taken by his lawyers on 12 December 2005. The Applicant described what led to the accident in these terms [at p.15 and p.19 (C) of the bundle]: “On the day of the accident, … I went to work and arrived at the construction site as usual at around 8:00 am. I started repairing the machinery for construction work. Thereafter, I started working on the Vehicle at about 3:00 pm as I was informed by Mr Lam Chi Hing[sic] and one other colleague on the day before the accident that the shock absorbing spring of the Vehicle was broken and that replacement must be done on Sunday so that the Vehicle could work on the following week.” 23.When the Applicant gave evidence in box, he said specifically that he was told by a colleague and his employer Mr Lam that the spring on the rear wheel of the vehicle needed to be fixed. If that was the case, the task to repair this vehicle should be taken as a priority and specific task or assignment that needed to be attended to on the day, not something to do in his free time. There was nothing wrong with the 5 excavators on the site on the day in question and what the Applicant did was just a routine maintenance check on these excavators. One would wonder why this specific assignment was not attended to in the first place but waited till the Applicant had finished all the routine checks and yet when he was too early to go off duty. In fact, under cross examination, the Applicant even denied that he had used the words ‘free time’ in the statement. 24.The safety officer of Kin Shing, Lee Kwok Hing in his witness statement dated 17 February 2006 [pp 20 to 24 of the bundle] mentioned about the letter from the police dated 24 November 2004 [p.81 of the bundle]. In the said letter, it was stated that “it was reported that at around 1537 hours on the same day your client Mr Lam Chi-keung was replacing a flat tyre for a vehicle EH 769 beside the construction site …” That was different from the version of events put forward by the Applicant as all along the latter maintained that he was to replace a broken spring of the vehicle. The police officer attending the scene Ho Chan Tung PC 58670 was called as a witness for the Respondent. Understandably, given the lapse of time and without his notebook, the police officer had no recollection of the event, even though he had given a witness statement dated 4 January 2006 [pp.41 to 43 of the bundle]. In his witness statement, the police officer also mentioned that when asked how the accident happened, he was told “ he [the Applicant] at that time had been using hydraulic jacks to lift up his vehicle (registration number EH 769) in order to replace the tyre(s) but suddenly the vehicle fell and he was trapped and crushed underneath the vehicle. … I wrote down what he told me on my notebook.” 25.I see no reason why the police would lie or fabricate the event. The author of the police letters, one Chiu Yam-ting, surely would rely on the officer’s notebook to draft the reply letters to the lawyers [pp.81 and 82 of the bundle]. There was no mention of replacing any tyre in the Applicant’s statement nor when he gave evidence in court. In fact, what was stated in the letters issued by Police was supported by Chung who mentioned in his witness statement dated 9 February 2006 in the following terms: “ a police officer at the scene told me that about 3:50 pm, a passer-by walked past the entrance at the west site and heard someone shouted for help and therefore reported the matter to the police. When the police arrived at the scene, the Applicant was still conscious. … The Applicant told that police officer that when he was replacing the tyre(s) the vehicle suddenly fell and (he) was thereby injured. … At the scene, I saw that one of the tyres of EH 769 had been taken off. ” [p.28 of the bundle] 26.The vehicle was registered in the Applicant’s name. He claimed that the car was used exclusively by the company hence in his statement he did not mention that the car was registered in his name as shown in the registration document [at p.161 of the bundle]. In his statement to the Loss Adjuster, the Applicant said the works vehicle (EH769) whose owner was my company” [p.72 of the bundle]. The Applicant changed the version in his witness statement dated 12 December 2005 when he mentioned about the $1,500 subsidies. He said that the money “ was, in fact, the rental paid by Mr Lam Chiu Hing[sic] in respect of my own jeep (EH769). The vehicle was a used car which I purchased about 3 years prior to the occurrence of the incident.” [p.19(C) of the bundle] In his statement given to the Loss Adjuster, the Applicant supplemented at the end of the interview by saying that the vehicle in fact belonged to him, and that the extra monthly allowance of $1,500 was for fuel for the vehicle [p.73 of the bundle]. He mentioned twice that the allowance was for fuel. The Applicant also mentioned that occasionally he parked the vehicle at the works site for his colleagues to use [p.73 of the bundle]. Under cross examination, the Applicant denied that he had told the Loss Adjuster about this. 27.Another issue that casts doubt on the Applicant’s credibility concerns the 5 salary receipts as shown at pp.97 to 101. The receipts were for “work injury prepayments in the amount of $16,000. Each receipt was dated on the 5th day of the month from January 2003 to May 2003. The receipts indicated that the Applicant had received the sums of money as shown in the receipts. The Applicant testified that he did not receive any of these sums of money for work injury prepayment and was asked to sign these receipts in one go. If the Applicant did not receive the sums of money as indicated, one would puzzle why he signed the receipt to signify that he had received the money. The Applicant said that he did receive the sum of $12,000 as shown in the salary receipt dated 5 December 2002 [p.96 of the bundle] which was part of his salary for the period from 13 November to 30 November. It is worthy to note that these 6 receipts were faxed from Chiu Wai on 27 May 2003 consequent upon the enquiry raised by the insurance company, Min An Insurance Co Ltd., in a letter dated 1 May 2003 [p.182 of the bundle]. It purported to show that the Applicant had received these sums of money totalled $92,000 ($12,000 being a portion of the salary and $80,000 being the total sums of work injury prepayment). At item 3 of the reply [p.182 in the bundle], it was stated clearly that “our company (after the accident) has paid employee’s compensation in the sum of $80,000 odd on 5 May 2003”. This was clearly incorrect as the Applicant has confirmed on oath that he never received these sums of prepayment totalled $80,000. The only inference is that there may well be some sort of collusion between the Applicant and Chiu Wai to substantiate his claim for compensation. 28.The Applicant claimed that he gave his jeep to his brother for company use. He took his jeep on the first day (13 November 2002) when he reported duty at the site. He did not explain why Chiu Wai needed his jeep since the company had one company car already. Nor did the Applicant tell the court what kind of arrangement was reached between Chiu Wai and himself over the use of the jeep. It was alleged that he was paid $1,500 per month for the rental of the vehicle. And yet when asked about the registration fee and the motor insurance of the jeep, the Applicant claimed that Chiu Wai did not have to bear the costs. The payment of the sum of $15,00 per month clearly could not be taken as the proof that the car was used by Chiu Wai exclusively. One may ask what if there was an accident and the jeep was damaged. Who should then bear the costs of repair? Who should pay for the insurance policy of the jeep? The Applicant claimed that the jeep was basically kept and parked at the site after 13 November. He did not use the jeep for personal use and hence has to commute by taking No.85 bus. If that is the case, why didn’t the Applicant sell the jeep to Chiu Wai outrightly. 29.There is no independent source of information to prove that the Applicant was working in the course of employment of Chiu Wai at the material time. The filing of Form 2 is a procedural statutory requirement under Cap 282 which the employer and/or contractor is required to submit upon the occurrence of an industrial accident. What was written down in the Form cannot simply be taken as an admission by the contractor and/or employer as such. The information leading to the compilation of Form 2 was given by the Applicant and LCC. There was no receipt of the so-called $1,500 rental given by Chiu Wai and the whole circumstances were clouded by the evasive answers given by the Applicant. No one witnessed how the accident happened. From the police record and what was mentioned in the statement of the safety officer, it cannot say for sure if the Applicant was changing a flat tyre of the vehicle or a broken spring or both. Conclusion 30.Taking all the factors into consideration, I find the evidence of the Applicant doubtful. As a whole, I do not find the Applicant a reliable witness, even though I am sympathetic to the Applicant as to his physical and psychological predicament that he is suffering from. It is my judgment that the Applicant sustained injuries by an accident which was not arising out of and in the course of the Applicant’s employment with Chiu Wai. The fact that the Applicant repaired his vehicle, either for changing the tyre or the broken spring, was an act done for his own personal purpose and not those for his employment. 31.In view of the ruling, I need not deal with the assessment of compensation. That said, in the event of an appeal and I was found erroneous in dismissing this application, I would make the following assessment of compensation. 32.I rule that the monthly earnings of the Applicant at the time was $12,000 not $20,000 as claimed by the Applicant. And I would also exercise my discretion under section 10(5) of Cap 282 to extend the Applicant’s sick leave to 3 years. In the circumstances, the compensation will be: Under section 7 of Cap 282: $12,000 x 72 x 100% = $864,000 Under section 10 of Cap 282: $12,000 x 4/5 x 12 months x 3 = $345,600 Totalled: $1,209,600. Order 33.I make the following orders:
Representation: Mr. Ashok Sakhrani instructed by Messrs. Andrew Chan & Co. assigned by D.L.A. for the Applicant. Mr. Kumar Ramanathan instructed by Messrs. Szwina Pang, Edward Li & Co. for 1st, 2nd and 3rd Respondents. |
Further hearings and rulings under DCEC 1375/2004