Wong Kin Shun v. Sham Chi Kin
Read the full judgment text of DCEC 535/2005 on BabelCite. This District Court judgment.
1. The Applicant claimed employees’ compensation for 2 alleged work-related accidents arising out of and in the course of his employment with the Respondent as follows :
Cited by 1 case · Cites 3 cases
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DCEC535/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 535 OF 2005 ------------------------ BETWEEN
------------------------ Coram: H H Judge Marlene Ng in Court Dates of Hearing: 28th and 29th January, 2008 Date of Handing Down Judgment: 16th May, 2008
------------------------ J U D G M E N T ------------------------
I. Introduction 1. The Applicant claimed employees’ compensation for 2 alleged work-related accidents arising out of and in the course of his employment with the Respondent as follows :
The Applicant also appealed against the assessment of loss of earning capacity of 1% in the Certificate of Review of Assessment dated 4th January 2005 for the 2nd Accident (“Form 9”). 2. The Respondent denied any employment relationship between the parties, and claimed they were in fact partners in sub-contracting an ironworks project at the Shop (“Project”). The Respondent invited the Applicant to take up the Project with him, and together they inspected the Shop. A quotation price of HK$55,000.00 was offered to the principal contractor in the expectation that each partner would earn net profit (ie contract sum less material/labour cost and sundry expenses) of about HK$500.00-HK$800.00 per workday. Shortly after formal acceptance of the quotation, the Respondent notified the Applicant to commence work whereupon each of them recruited worker(s) and contributed equipment/tools for the Project. 3. There is no dispute that the Applicant was carrying out ironworks at the Shop when the 1st Accident happened. But the Respondent denied the 2nd Accident, and claimed the Applicant only mentioned he had waist pain and did not want to work on the day following the alleged 2nd Accident. II. Issues 4. The issues on liability are as follows :
5. Both parties agreed the sick leave periods were 13 and 75 days and the medical expenses incurred in Hong Kong were HK$264.00 and HK$3,096.00 for the 1st and 2nd Accidents respectively. Thus, the issues on quantum are as follows :
III. Legal principles 6. In Poon Chau Nam v Yim Siu Cheung (t/a Yat Cheung Airconditioning & Electric Co) [2007] 2 HKC 135, 144-145, the Court of Final Appeal held that the modern approach to the question whether one person was another’s employee was to examine all the features of their relationship against the background of the indicia developed in the case law with a view to deciding whether, as a matter of overall impression, the relationship was one of employment, bearing in mind the purpose for which the question was asked. It involved a nuanced and not a mechanical approach. 7. Ribeiro PJ cited Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2 QB 497, 515 where MacKenna J identified 3 conditions for the existence of a contract of employment as follows:
But Poon Chau Nam at pp.143-144 said the courts had increasingly turned to the economic or commercial aspects of the relationship as more suitable guides. A reservation of right to direct or superintend the performance of the task could not transfer a contract of service what in essence was an independent contract. 8. Ribiero PJ next cited the well-known test by Cooke J in Market Investigations Limited v Minister of Social Security [1969] 2 QB 173 :
9. Ultimately, the question whether a person was an employee or partner was a question of fact to be determined by the trial court. Mr Li, counsel for the Respondent, referred to Chitty on Contracts 29th ed, Vol.2, paras.39-010 - 39-028 at pp.943-955 which set out some helpful considerations. IV. Witnesses 10. The Applicant gave evidence and called Ng Wai Hung (“WH Ng”), a proprietor of an aluminium window installation company and his relative, to give evidence. At the material time, WH Ng’s shop was at No.59B Tai Nam Street (“WH Ng Shop”). He had known the Applicant for about 10 years, and had occasionally employed him for a few days’ work at daily wage rate of HK$500.00-HK$600.00. 11. The Respondent gave evidence and called Ng Shu Pui (“SP Ng”), a carpenter, as his witness. The Respondent and SP Ng knew each other since 1987, and had worked together (though not as partners) prior to the Project. As I find below, SP Ng was initially the Respondent’s partner for the Project, but later withdrew from the partnership and still later became an employed worker for the Project for 2 days. 12. In assessing witness’ credibility, the court should consider the totality of the witnesses’ evidence against the documentary evidence, inferences based on inherent improbabilities and/or undisputed facts (see the principles set out by Chung J at paragraph 12 of Star Glory Investment Ltd v Kai Tua (H.K.) Technology Ltd & ors HCA3523/2002 (unreported, 13th August 2005)). 13. On balance I am unable to accept the Applicant’s evidence on the core issues even though he mentioned the 2nd Accident to the doctors when he sought medical treatment and reported the 1st and 2nd Accidents to the Labour Department. In my view, the overall factual matrix suggests that the Applicant was a partner rather than an employed worker. Further, he was not above embellishing his case and/or changing his evidence to suit his contentions. 14. I prefer the Respondent’s evidence on the core issues, which was largely in line with SP Ng’s evidence and which hanged well with the overall factual matrix. The parts of his evidence that I reject do not detract from his overall veracity. V. Liability (1) Background 15. Both parties had been in the decoration trade (三行) for more than 20 years mainly as employed casual workers but occasionally as sub-contractors of larger-scale painting, masonry or other interior decoration projects that required more than a few days’ work. 16. In 1981, the Respondent applied for business registration in the name of Wah Ngai Decoration Works Company (“Wah Ngai”) to bid for certain interior decoration works, but cancelled the registration half a year later. He never had another company since. The Respondent could not remember whether he gave any Wah Ngai name card to the Applicant, but the Applicant in his declaration dated 18th February 2004 to the Labour Department (“1st Declaration”) said he did. 17. The Applicant mainly did masonry and small welding works on casual basis for various employers. Although he rarely sub-contracted interior decoration works, he recalled an occasion about 4-7 years ago when he invited other workers “入嚟打大數” (ie share profit as co-venturers) for a sub-contracted project in Ma Wan. 18. Many years ago, the Applicant purchased 2 large cutting and welding machines (“Machines”) which he stored at the WH Ng Shop together with his 2 grinding machines. He could not remember whether he kept other equipment/tools there, but it appears from paragraph 59 below that he also stored tall ladders and other tools at the WH Ng Shop. (2) Parties’ past dealings 19. The Applicant believed (but could not clearly remember) he came to know the Respondent a few years before the 1st Accident. The Respondent claimed he knew the Applicant since 1999. 20. There is no dispute that :
21. For the Fa Yuen Street Project, the Applicant claimed the Respondent employed him for 2-3 days’ work and paid him wages, and he introduced another worker to work on the project for 1 day. On the other hand, the Respondent claimed he was employed by the owner of the restaurant who was from his village, so he was the Applicant’s co-worker and not employer. 22. For the Shaukeiwan Project, the Applicant claimed the Respondent employed him for about 8-10 days and paid him wages. The Applicant said the Respondent also gave him wages to distribute to the workers he introduced at the Respondent’s request to work on the project. On the other hand, the Respondent claimed his friend told him workers were required for the Shaukeiwan Project, and invited him to work as employed worker on the project. 23. The Applicant admitted he did not know the amount of the contract sums for the above 2 projects or who sub-contracted such works, but he regarded the Respondent as his employer/boss because the Respondent paid him wages. On the other hand, the Respondent claimed he received wages from the sub-contractors of the 2 projects, Mr Tso and/or Mr Lau, who were also the parties’ employers, for distribution to the workers. 24. Mr Ling, counsel for the Applicant, doubted that for the above 3 projects the parties “一齊打工”. He argued it was contrary to the Respondent’s assertion that his friend introduced the Applicant to him when he required a further worker for the Fa Yuen Street Project. Mr Ling further submitted that the Applicant, an employed worker in the above 3 projects, would not have been a partner for the Project. 25. It is not disputed that casual workers in the decoration trade worked for different employers for wages calculated on the basis of a daily wage rate for days worked. Both the nature/period of work and the daily wage rate varied with different jobs, employers and/or workers. At the same time, sub-contractors who sub-contracted interior decoration projects for agreed sums had to recruit such casual workers to carry out the works. Thus, a cornerstone of the decoration trade was a referral system whereby workers looked for work and sub-contractors looked for workers through introductions via friends and trade colleagues. 26. In such circumstances, a person who invited a casual worker to work on a decoration job might not necessarily be his employer. He might have been a co-worker or trade colleague who introduced the worker to work on the job. For example, the Applicant was not the employer when he introduced a worker to work for 1 day on the Fa Yuen Street Project. It also meant that an employer might not personally know all his workers some of whom might have been introduced by other workers or trade colleagues. Against such background, it is unsurprising for an employer to pay wages to a worker and have him distribute such wages to the other workers he introduced to work on the job. For example, in the Shaukeiwan Project the Respondent paid wages to the Applicant for him to distribute to the workers he introduced to work on such project. 27. In my view, the acts of looking for workers and paying/ distributing wages must be considered against the whole factual matrix for it did not necessarily follow there would be an employment relationship. Without other clear indicia of an employment relationship between the parties, and bearing in mind the above 3 projects did not require many days’ work, I find that the Respondent was only the Applicant’s co-worker who introduced him to work on the projects. But even if I were wrong, it did not follow that the parties’ relationship vis-à-vis the Project would be the same as in their past dealings. (3) Project 28. SP Ng often did casual carpentry work for Tang Lin Ho (“Tang”) of Fung Shing Decoration Engineering Company (“Fung Shing”). In May/June 2003, Tang told SP Ng about an interior decoration project for the Shop at the Mall, and asked SP Ng to find someone to take up the ironworks (ie the Project). SP Ng promised he would either do so himself or find someone else to do so. He knew roughly the scope of works for the Project, and invited the Respondent to join him as partner to subcontract such works. 29. In June 2003, SP Ng and the Respondent went to the Mall and inspected the interior of the Shop from the outside by looking through the glass panels. The Respondent then checked the price for materials and calculated workers’ wages to arrive at a quotation price of about HK$55,000.00. He informed SP Ng who in turn told Tang the quotation price. In early July 2003, Tang verbally agreed to the quotation in principle, but the subcontract was not firmed up yet. 30. Shortly thereafter, SP Ng was notified to undergo an operation for which he had been waitlisted for some time, so he withdrew from Project, and urged the Respondent to find another partner. He also told Tang to liaise with the Respondent. 31. Mr Ling submitted I should approach SP Ng’s evidence with circumspection because he had known the Respondent for a long time and on 2nd October 2003 he accompanied the Respondent to the Labour Department where the Respondent wrote a statement in relation to the 1st and 2nd Accidents (“2/10/03 Statement”). I do not accept these matters adversely affected the veracity of SP Ng’s evidence. It is also unsurprising for him to accompany the Respondent to the Labour Department since he knew the background to the Project and was at the Shop when the 1st Accident happened. 32. I make the following findings/conclusions from the above :
33. Further, at that time the Respondent had another ongoing interior decoration project at another worksite, so he was unable to take up the Project on his own. He was too busy to shuttle constantly between the Shop and the other worksite in order to supervise the works properly, but was worried that workers would be slack if not properly supervised. I accept the Respondent set about looking for a replacement partner. (4) Invitation to the Applicant 34. After the Flower Cage Project in 2003 (according to the Applicant) or in 2001 (according to the Respondent), and during the SARS epidemic in 2003, the Applicant telephoned to ask the Respondent for work. So the Respondent thought of liaising with the Applicant to see if he would be interested in the Project. 35. The Applicant claimed the Respondent enquired whether he could do welding work, and when he replied in the affirmative the Respondent invited him to help with welding work at the Shop upon successful bid for the Project. But under cross-examination, the Applicant claimed that when he telephoned to ask the Respondent for work, the Respondent enquired whether he was interested in doing welding work for the Project and he replied he would accept any work. However, the Applicant admitted upon further cross-examination that it was the Respondent who told him about the Project and invited him to work as an employed welding worker. 36. I find the Applicant’s wavering evidence unreliable, and prefer the Respondent’s case that he told the Applicant about the Project and asked whether he was interested in taking up the Project with him. I further accept the Applicant was grateful for and agreed to the offer. Mr Ling reminded that under cross-examination the Respondent agreed with his suggestion that “你喺第一次同佢通電話嘅時侯，你淨係問佢係有單鐵器工程，你有冇興趣做? 佢話佢有興趣嘅啫，冇其他嘅”. But given the whole tenor of the Respondent’s evidence, I am unable to draw adverse inference from such answer, especially when the query of “你有冇興趣做” as put to the Respondent did not draw specific distinction between an employed worker and a partner. 37. The Respondent claimed the aforesaid telephone liaison took place at the end of June 2003. The Applicant’s witness statement stated it was about the end of 2002, but he eventually conceded under cross-examination it should be in/about June 2003. It is interesting to note that in the course of giving evidence the Applicant shied away from the error in his witness statement by saying his witness statement was not written by him and he was unsure whether it was read to him. But when confronted with the confirmation by his solicitors’ law clerk endorsed on his witness statement, he changed tack to say it had not been read to him in detail. Still later he changed his complaint to one against the pace at which it was read to him. In the end, he was constrained to admit to the aforesaid error. In my view, the Applicant’s unconvincing excuses and his reluctance in frankly admitting such minor error amply illustrated the unreliability of his evidence and his willingness to tailor his case. This does not speak well of his overall veracity. (5) Inspection ofthe Shop 38. Although there is no dispute that the parties visited the Shop in/about July 2003, the Applicant’s evidence in this respect is again unconvincing. 39. The Applicant admitted in his witness statement that in/about July 2003 the Respondent asked him to inspect the Shop together so as to have an understanding of the particulars of the Project. He denied such arrangement under cross-examination, and further claimed he took the initiative to visit the Shop because the Respondent said he would be there. He eventually conceded under further cross-examination that it was the Respondent who invited him to jointly inspect the Shop, but he still insisted that his main purpose in visiting the Shop was to check the transportation to Tung Chung. I find such assertion, which is hard to believe and which did not sit well with his witness statement, nothing more than an unconvincing attempt to distance himself from the sub-contract of the Project. 40. I prefer the Respondent’s evidence that (a) in July 2003 he liaised with Tang and then with the Applicant to arrange an inspection of the Shop, and (b) the purpose of such inspection was to understand how the ironworks were to be carried out inside the Shop. No doubt, the inspection would also allow the parties (including the Applicant as a new participant) to get to know the “bosses”, ie Tang and the Owner (see paragraph 42 below). 41. In my view, the above plainly supported a partnership relationship between the parties. Had the Applicant been a mere employed worker like the other employed workers who worked on the Project in August/September 2003 (see below), there would have been no need for him to inspect the Shop and, like the other employed workers, he would have been asked to start work in August 2003. 42. There is no dispute that during the inspection there were at least 4 persons inside the Shop including the parties. I accept the Respondent’s evidence that the other 2 persons were Tang and Mr Wong (ie the tenanted owner of the Shop (“Owner”)). 43. The Applicant in his evidence-in-chief claimed the Owner and the principal contractor (whom he did not know as Tang) were present at the Shop. Under cross-examination, he denied any knowledge that the persons inside the Shop included Tang and/or the Owner. More specifically, he (a) denied the Respondent introduced Tang to him as his boss, (b) could not remember whether the Respondent introduced him as partner to anyone present at the Shop, and (c) claimed he only heard of Tang after commencement of the works in August 2003. These assertions were contradicted by the Applicant’s witness statement which clearly admitted (i) the Respondent introduced Tang to him as his boss, and (b) introduced him to Tang as his partner. When confronted with his witness statement, the Applicant changed to say the version therein was the correct one, and later even said he recollected the Respondent introducing Tang to him as his boss and telling Tang he was his partner. 44. I find it unlikely that with only a few persons inside the Shop the Respondent would let the Applicant remain there as a stranger without introducing him to Tang and the Owner and vice versa. This is especially so since Tang and the Owner were the “bosses” of the Project, and the purpose of the visit was to have an understanding of their requirements for the ironworks. I prefer the Respondent’s evidence that he introduced the Applicant to Tang as his partner. 45. Mr Ling reminded that when he put the Applicant’s case to the Respondent during cross-examination, the Respondent agreed there was no mention of “partner”. But I am unable to place weight on such discrepancy given the Applicant’s eventual concession that such introduction was actually made (see paragraph 43 above). 46. The Applicant tried to make light of the above reference to “partner” by saying it meant a co-worker in the decoration trade. But given that (a) the purpose of the inspection was to have an understanding of the particulars of the ironworks, (b) the inspection took place before the sub-contract was firmed up and/or before the commencement of works, and (c) the Respondent did not invite other employed workers who later worked on the Project to attend such inspection, I find the Applicant’s reference to “partner” unmistakably meant a co-venturer and not a co-worker. 47. I do not accept that the Respondent, Tang and the Owner discussed the ironworks whilst the Applicant waited at the entrance of the Shop. In my view, such assertion, which did not sit well with the purpose of the inspection as discussed between the parties, is another unconvincing attempt by the Applicant to dress up as an employed worker. I prefer the Respondent’s evidence that he asked Tang how to carry out the ironworks, and Tang produced some drawings to explain the size/scope of and materials for the works, his requirements and the works programme. I further accept the Applicant was standing next to the Respondent during such discussions, and he even observed that the welding work would not be difficult. After such discussions, Tang formally agreed to sub-contract the Project for completion within 30 days for the sum of HK$55,000.00, and asked for a written quotation. 48. The Respondent then prepared a written quotation titled “Ironworks (To [Tang])” in the sum of HK$55,000.00 on the basis of “包工包料，圖則欠奉，依現場掣作” (“Quotation”). The Respondent explained it was normal to first inspect the work site to assess the scope of works and offer an oral quotation, and then issue a written quotation for record purpose after reaching agreement on the terms of the sub-contract. This meant that the negotiations and agreement were made orally, and the written quotation was essentially a written record of the agreed scope of works and agreed contract sum. 49. Mr Ling criticised the Respondent’s witness statement for stating “[Shing Fung]批出一份工程合約，也給[the Applicant]參閱”. The Respondent agreed the sub-contract was made orally, but in line with the practice referred to in the above paragraph and with the reference to “依現場掣作” in the Quotation, the Quotation was in fact a written record of the scope of works and price as agreed during inspection of the Shop. He further explained (and I accept) he carried a copy of the Quotation on his person since commencement of the ironworks on 8th August 2003, and showed it to the Applicant probably on the following day. 50. I therefore find that the Applicant well knew Shing Fung sub-contracted the Project to the parties who took up the same as partners for the contract sum of HK$55,000.00. (6) Notification to start work 51. According to the Applicant’s witness statement, about a week after inspecting the Shop, the Respondent telephoned to tell him to start work on 8th August 2003. 2 days later, the Respondent telephoned again to (a) enquire about the daily wage rate of a welding worker and (b) ask the Applicant to introduce another welding worker for the Project. The Applicant said for (a) it was normally HK$600.00 (to which the Respondent agreed) and for (b) he recommended Wong Yuk Sing (“Wong”) who was a construction site welding master. The Respondent further said his small welding and cutting machines might not be able to handle the large metal bars whereupon the Applicant said he had previously bought large welding and cutting machines (ie the Machines) which were stored at his relative’s shop at Tai Nam Street (ie the WH Ng Shop). He offered to lend the Machines to the Respondent who accepted without hesitation. 52. But under cross-examination, the Applicant claimed the Respondent telephoned him on 7th August 2003 to ask him to start work the following day. He agreed the parties discussed about welding and cutting machines, but denied he offered to the Respondent use of the Machines. Instead, he insisted it was the Respondent who asked him for such use and he agreed. But this did not sit well with the assertion in his witness statement that the Applicant “向答辯人提出把這兩部機器借給他，答辯人一口贊成”. Further, the Applicant claimed under cross-examination that during the same telephone conversation on 7th August 2003 the parties discussed about having an extra welding worker for the Project, which contradicted the reference to 2 telephone conversations in his witness statement. 53. I do not agree the parties discussed about having an extra welding worker and engaging Wong during the telephone conversation on 7th August 2003. In my view, the Applicant said so to justify his assertion that Wong came to work on 8th August 2003, but as seen in paragraphs 59-60 below, I find that Wong did not work on the Project that day. 54. I prefer the Respondent’s evidence that when he tried to telephone the Applicant on 7th August 2003 the Applicant was in Mainland China, so he left word for the Applicant to return to Hong Kong to start work the following day. Early the following morning the Applicant telephoned the Respondent who said they should go to Tai Kok Tsui to purchase materials and machines. The Respondent explained his welding and cutting machines were not big enough to handle the metal bars. The Applicant said there was no need to purchase machines because he had the Machines and added “出到嚟先算啦”. They then made arrangements to meet up. 55. None of the other employed workers who later worked on the Project brought any machines/equipment/tools to the Project. Only the Applicant and the Respondent did. If the Applicant were a mere employed worker, there would have been no need for him to let the Machines be used for the Project. After all, there was no problem with buying such machines for the Project. Such machines were not worth much, and 3 days before 8th August 2003 Shing Fung advanced a sum of HK$20,000.00 for the purchase of materials/equipment/tools. Any savings from not having to buy large welding and cutting machines only served to increase the net profit, but had no effect on the earnings of employed workers paid on the basis of daily wage rates. In my view, the contribution of machines/tools by both parties for the Project is suggestive of a partnership relationship. 56. The Applicant claimed that although his average daily wage rate was HK$600.00-HK$700.00, his rate for the Project was HK$800.00. He further claimed there was no need for the parties to discuss and they did not discuss his daily wage rate because it was understood from the previous projects that he would be paid HK$800.00 per day. 57. There is no dispute that daily wage rates fluctuated with different workers, employers and/or jobs. Further, it had been some time since the parties last worked together. Had the Applicant been an employed worker earning wages pursuant to a daily wage rate, I doubt that the parties would not have mentioned his daily wage rate at all. In my view, the absence of such express reference is because the Applicant as partner was to be remunerated by sharing the final net profits of the Project. I accept the Respondent assured the Applicant that the estimated profit (net of material/labour cost and sundry expenses) would be about HK$500.00-HK$800.00 for each workday. (7) 8th August 2003 58. The Applicant stated in his witness statement that on 8th August 2003 the parties first went to the WH Ng Shop to collect the Machines, Wong then joined them and together they went to Tai Kok Tsui to purchase materials. 59. But I prefer the Respondent’s evidence that he arranged to meet the Applicant and a miscellaneous worker called 阿亮. The Applicant told them the location of the WH Ng Shop, and they all went to collect the Machines, a hand-operated grinding machine, 2 tall ladders and a bag of tools. Thus the Applicant contributed more equipment/tools for the Project than just the Machines. SP Ng verified this by confirming that the 6ft ladders he saw at the Shop on 17th August 2003 were not the Respondent’s. He knew from having previously worked with the Respondent that he only had 4ft ladders. The Applicant, Respondent and阿亮 then used a handcart to push the equipment/tools to Tai Kok Tsui where the Respondent bought materials such as angle/metal bars. 60. In my view, the Respondent’s version of events was corroborated by WH Ng’s witness statement, which stated that the Applicant “連同兩人” went to the WH Ng Shop to collect some equipment. The Applicant did not give any satisfactory reason for the discrepancy with his assertion that Wong joined the parties after they had collected the Machines from the WH Ng Shop. 61. There is no dispute that (a) the Respondent hired a lorry to bring everything back to the Shop and (b) no further work was done at the Shop on 8th August 2003 after unloading. (8) Workers 62. On 9th August 2003, work at the Shop commenced. The Applicant claimed he was at work at the Shop together with Wong and a miscellaneous worker engaged by the Respondent (whom he saw for the 1st time that day and whom he did not know was called 阿亮). However, I have found that on 8th August 2003 阿亮 accompanied the parties to collect the Applicant’s equipment/tools and to purchase materials, so the Applicant could not have seen him only for the 1st time on 9th August 2003. Further, according to the Breakdown prepared by the Respondent in January 2004 (see paragraphs 102 and 104 below), it was recorded that the parties and 阿亮 worked on 8th and 9th August 2003 but Wong only started work on 11th August 2003. 63. I prefer the Respondent’s evidence that after the parties commenced work at the Shop the Applicant suggested engaging a clansman from his village who knew construction site welding work (ie Wong) to work on the Project at a daily wage rate of HK$600.00. Although the Respondent considered 1 welding worker but more miscellaneous workers were required for the Project, he did not disagree. After all, he wanted to complete the Project as soon as possible, and he was told Wong had relevant skills. In my view, this explained why Wong only started to work at the Shop on 11th August 2003 as noted in the Breakdown (see paragraphs 102 and 104 below). 64. A number of miscellaneous workers were also employed to work on the Project. Upon commencement of the works, the Applicant recruited Wong, and the Respondent recruited 阿勤, 阿亮, 阿培 (ie SP Ng) and 阿許 (who only worked on the Project after the 2nd Accident). This lent support to the assertion in the Respondent’s witness statement that “最後我們……到[the Shop]開工，雙方也各自顧用自己的工人，工資由300元至700元不等”, which is suggestive of a partnership arrangement. (9) Materials 65. The Respondent purchased materials out of the advance payment given by Tang. For minor items purchased in Tung Chung in the course of work, the Respondent would make such purchases if he were present at the Shop, otherwise the Applicant would buy them out of the advance payment of HK$1,000.00-HK$1,500.00 given by the Respondent for such purpose, and he later gave the invoices/receipts to the Respondent. 66. Mr Ling submitted that the Respondent’s conduct in preparing the Quotation, receiving advance payment from Shing Fung, purchasing and paying for the materials, arranging the lorry to transport the materials to the Shop, and advancing monies to the Applicant to purchase minor items when he was not about suggested that he was the sub-contractor of the Project and employer of the Applicant, who was only an employed welding worker. 67. But after careful consideration of whole of the dealings between the parties, I am unable to accept such contention. In my view, the Respondent dealt with Tang because (a) the Project came from the discussions between Tang and SP Ng and (b) SP Ng asked Tang to liaise with the Respondent after his withdrawal from the partnership. It is therefore not surprising for Tang to give the advance payment to the Respondent who then made purchases out of such fund. I note it was expected that the Respondent would work out the quotation price, prepare the Quotation, and eventually calculate the breakdown of income/expenses/profit. 68. In my view, this evidenced a sharing of work between the parties as partners. The Applicant (who claimed to know welding work) was on the other hand expected to work regularly at the Shop and supervise the miscellaneous workers, especially since the Respondent (who had another project elsewhere) could not be there all the time. Indeed, the Applicant agreed that even though he was not a master he could give instructions to miscellaneous workers. 69. I disagree that the Applicant did not give instructions to workers at the Shop because they knew how to go about their work. I bear in mind that (a) Wong (who was recruited by the Applicant) was expected to do welding work together with him, (b) 阿亮 (who was recruited by the Respondent) was only a miscellaneous worker, and (c) both of them never had the benefit of discussing the scope and requirements of the ironworks with Tang and the Owner. Further, the discussion below (see paragraph 71 below) also showed that the Applicant did give instructions to SP Ng when he came to work at the Shop on 17th August 2003. This suggests that the Applicant was not an employed worker. (10) 1st Accident 70. SP Ng was hospitalised at the end of July 2003, and rested until 16th August 2003 when he telephoned the Respondent to look for work. When the Respondent told him the parties had subcontracted the Project, SP Ng offered to work on the Project. The Respondent agreed to employ him at a daily wage rate of HK$700.00, and told him to report to the Applicant at the Shop the following day. 71. SP Ng, the Applicant and Wong (but not the Respondent) were at work at the Shop on 17th August 2003. SP Ng regarded the Applicant as 1 of the bosses because the Applicant recruited Wong in the same way as the Respondent recruited him. I accept that the Applicant instructed him to apply a layer of anti-rust primer onto the angle bar before welding. By that time the Applicant and other workers had worked at the Shop for about 8 days. SP Ng could hardly arrive at the Shop and start work without any communication with or instructions from the Applicant. 72. At about 9:00am, the Owner told the Applicant to shorten the installed angle bars, so the Applicant got onto a ladder to attend to such task. At about 9:30am or 10:00am, as the Applicant was about to finish cutting the first angle bar and as SP Ng was getting ready to apply the primer, the blade of the Applicant’s cutting machine suddenly broke and a fragment hit his face. There was bleeding from the wound, so SP Ng called the police. He accompanied the Applicant in an ambulance to the accident and emergency department (“AED”) of Princess Margaret Hospital (“PMH”). The Applicant claimed he telephoned to inform the Respondent of the 1st Accident whilst waiting for the ambulance, but I prefer SP Ng’s evidence that he telephoned to report to the Respondent from the hospital. (11) After the 1st Accident 73. The Applicant was discharged home after receiving medical treatment and was granted sick leave up to 1st September 2003. On 18th August 2003, the Respondent worked at the Shop in the absence of the Applicant, and visited the Applicant after work. They did not discuss about the Project or raise the issue of compensation. 74. The Respondent claimed that during suspension of the ironworks at the Shop between 18th and 31st August 2003 by the landlord, the Applicant telephoned to ask him for compensation in the sum of HK$5,000.00 and threatened to sue the Respondent otherwise. On the other hand, the Applicant claimed that on/about 27th August 2003 he telephoned the Respondent to enquire about compensation. Nevertheless, there is no dispute that the Respondent declined to pay any compensation. The Applicant went to the Labour Department and filled out a Notification of Accident dated 27th August 2003. According to the Applicant, he did so to reserve his right to make future claim for compensation. 75. Even though the Notification of Accident was lodged shortly after the 1st Accident, I am not persuaded I should place weight on such conduct. The Applicant was injured during work, which probably led him to assume mistakenly that he could claim some compensation for his injury. The Respondent’s refusal was immediate and unequivocal. It was only in face of such refusal that the Applicant reported to the Labour Department. I find that this was done more in the hope of bargaining for some compensation in future than on the basis of an employment relationship between the parties. Significantly, notwithstanding such notification to the Labour Department, the Applicant never attempted to give his medical certificates to the Respondent when the Respondent visited him on 18th August 2003, when he returned to work on 2nd and 3rd September 2003, when he met the Respondent on 20th January 2004 (see paragraph 108 below) and again in April 2004 (see paragraph 114 below) or any time thereafter. The Applicant did not offer any or any satisfactory explanation for such reticence. Further, I find it strange that the issue of compensation was not even raised at the meeting on 20th January 2004 (see paragraphs 108-112 below) when the Respondent gave the Applicant his remuneration for the Project. I also note with interest that the Applicant admitted that by April 2004 he was not chasing for compensation seriously (see paragraph 113 below). 76. I further note that the Notification of Accident described the Applicant’s employer as the Respondent carrying on business as Wah Ngai. But the Applicant in the 1st Declaration admitted he actually did not know in what name the Respondent sub-contracted the Project. It appeared that the Applicant was quite prepared to state whatever that suited his purpose. I do not accept that the Notification of Accident dated 27th August 2003 correctly recorded the parties’ true relationship. (12) 2nd Accident 77. When work at the Shop could be resumed, Tang notified the Respondent. On 31st August or 1st September 2003, the Respondent asked the Applicant to return to work, and the Applicant agreed as he thought his facial injury was not serious. He resumed work at the Shop on 2nd September 2003 on the metal bars for the loft. On that day, the Applicant, Respondent and a painting worker recruited by the Respondent by the name of 阿勤were at work at the Shop (see the Breakdown at paragraphs 102 and 104 below). On that day, according to the Applicant’s declaration dated 24th February 2004 to the Labour Department (“2nd Declaration”), they lifted 4-5 metal bars for welding a crossbeam. 78. On the following day, the 3 of them intended to lift 6 10ft-15ft metal bars to form the frame for the loft. This involved a 2-step process. The workers would first lift the metal bar from the floor to place it on top of 2 4ft ladders. After securing it to the block and tackle, a worker would pull it up to a height of 8ft above the ground. 79. The Applicant in the 1st and 2nd Declarations claimed that at about 11:00am, the Applicant and the Respondent each held 1 end of a metal bar to lift it onto on the ladders. The Applicant claimed that when they lifted the metal bar to about 2ft off the ground, the Applicant’s facial wound became painful, his body muscles twitched and there was a little pain in his back near the lumbar area. They continued to lift the metal bar onto the ladders. The Applicant then felt great pain in the lumbar region, and he told the Respondent his “lumbar bone(s)” were injured. He immediately took some painkillers and rested for a while. When he resumed work, he requested to take up the easier task of pulling the tackle and let the painting worker lift the other metal bars, and the Respondent agreed. The Applicant also did some welding work (ie probably welding the metal bars after they were lifted into place). The Applicant claimed they continued to work until 6:15pm when his back/lumbar pain became more severe. He told the Respondent he would leave early, and then went home to put some ointment on his back for pain relief. 80. I prefer the Respondent’s evidence that all 3 of them worked together to lift the metal bars onto the ladders by having 2 of them holding 1 end of the metal bar and the third person holding the other end. For the 1st stage of the 2-step process, there was no need to operate the block and tackle, so there was no reason for 阿勤 to be idle when the parties proceeded to lift the metal bar. I find on balance that the metal bar was not lifted in the way suggested by the Applicant, and the Applicant did not complain of back/lumbar pain or request to pull the tackle on 3rd September 2003. I further accept the Respondent’s evidence that throughout that day he (and not the Applicant or 阿勤) pulled the tackle to lift the metal bars into position. 81. I also note that the Applicant in the 2nd Declaration admitted he had no difficulty in helping to unload 10-15 metal bars at the Shop on 8th August 2003 and to lift 4-5 metal bars on 2nd September 2003. He also agreed (a) there was no difficulty for 2 persons to lift a metal bar by holding each end and moving in unison, and (b) he adopted the correct posture when he lifted the metal bar. There is no suggestion that the parties and/or 阿勤 did not move in unison when lifting the metal bar. 82. I also do not accept that the Applicant left early because of back/lumbar pain. The Applicant admitted in his witness statement that the working hours at the Shop were 9:00am to 6:00pm with lunch break at 12:00 noon. In the circumstances, knocking off work at 6:15pm on 3rd September 2003 meant the Applicant did a full day’s work (instead of leaving early) despite his allegation of back/lumbar pain. Further, according to the 1st Declaration, he was still able to do welding work after the 2nd Accident, which meant he had to carry the large welding machine up a ladder and work at height. 83. I find on balance there was no 2nd Accident as alleged, and this was supported by the events on 4th September 2003 and the medical evidence discussed below. (13) 3rd and 4th September 2003 84. The Applicant claimed he still had waist/back pain when he woke up on 4th September 2003, so he telephoned the Respondent to say he might not be able to handle the work because of lumbar pain and he would not work that day. 85. I prefer the Respondent’s evidence that before he knocked off work on 3rd September 2003 he told the Applicant he would not work at the Shop the following day. He reminded the Applicant to open the door of the Shop for the other workers and to finish the welding/painting work with 阿勤. On 4th September 2003, the Respondent went to work on his other project. At about 10:00am, 阿勤telephoned to tell him the workers had no access to the Shop because the Applicant was not there yet. The Respondent was upset and telephoned the Applicant to demand an explanation. It was then that the Applicant told him “我腰痛呀” and said he did not want to work that day. The Respondent therefore told 阿勤 to let the workers go. 86. Mr Ling submitted that the Respondent’s instructions to the Applicant on 3rd September 2003 (which the Applicant denied) showed he exercised control/supervision over the Applicant. I disagree and find such conversation to be natural communication between partners about the outstanding works and making sure one partner would be at the Shop when the other had to be away. There is no dispute that the Applicant had a duplicate key to the Shop since commencement of the works. I do not accept the Applicant’s claim that he did not have the key with him on 2nd and 3rd September 2003 because he gave it to Wong. There was no satisfactory explanation why he would have given the key to Wong, and more importantly, Wong ceased working at the Shop after 18th August 2003 (see the Breakdown at paragraphs 102 and 104 below). I do not believe the Applicant when he claimed he did not know the other workers would not have access to the Shop if he stayed at home on 4th September 2003. 87. Despite the Applicant’s complaint of back pain that prevented him from working on 4th September 2003, he only stayed home to rest and did not seek medical treatment until the following day (ie until after the Respondent complained that he failed to turn up for work on 4th September 2003 and after he gave the explanation that he had back pain). Even on the Applicant’s own case, I find it strange that he did not seek medical treatment on 4th September 2003 when he (a) had back pain and so informed the Respondent, and (b) knew such back pain was not ordinary ache/pain but was caused by the 2nd Accident. 88. The Applicant claimed that when he woke up on 5th September 2003 his back pain intensified, and he had no alternative but to go to PMH’s AED for medical treatment. But he admitted in the 1st Declaration that when he sought medical treatment on 5th September 2003, “當時醫生表示沒有發覺任何傷勢 ……”. Further, even though the medical report of PMH’s AED dated 3rd April 2004 stated the Applicant “sprained his back while at work and noticed to have back pain then after” (which no doubt was history given by the Applicant), it noted that physical examination revealed no tenderness over his spine. This did not sit well with the Applicant’s claim of intensification of back pain that necessitated medical treatment that day. Physical examination further revealed full straight leg raising on both sides and no neurological deficit. X-ray of lumbrosacral spine showed marginal osteophytes and degenerative changes. Analgesics were prescribed and the Applicant was discharged home up with sick leave and follow-up treatment a few days later. 89. In my view, the more objective parts of the medical evidence for the consultation on 5th September 2003 did not support the Applicant’s claim of trauma-caused back pain. It was compatible with a degenerative back. (14) After the 2nd Accident 90. The Applicant claimed he telephoned the Respondent about a week after the 2nd Accident to chase for outstanding wages and compensation, and he rejected the Respondent’s proposal of paying HK$2,000.00 as compensation. He further claimed that at the request of the Labour Department, he went to their offices on 23rd September 2003 to lodge a Notification of Accident for the 2nd Accident. But he was unable to explain why the Labour Department would know about the 2nd Accident so as to invite him to lodge the notification. 91. There is no dispute that the Applicant did not return to work at the Shop after 3rd September 2003, and the Respondent together with 阿勤 and 阿許finished the Project. I accept that after the loft was installed, the Owner had some variation works and the Respondent agreed to install 2 metal frames for HK$6,000.00 and to dismantle glass panel for HK$1,600.00. The Respondent did not tell the Applicant about such variation works because the Applicant did not return to the Shop and the Respondent accepted such works on behalf of the partnership. As seen below, the Applicant shared in the profits of such variation works. Apart from a metal staircase the installation of which was withheld by Tang until June 2004, the Project together with the variation works were substantially completed by 16th September 2003. 92. The Respondent said the Labour Department asked him to attend its offices to give a statement (presumably pursuant to the Applicant’s notification of the 1st and 2nd Accidents). On 2nd October 2003, he went there with SP Ng and wrote the 2/10/03 Statement. In such statement, he made clear that the parties were partners, and stated that notwithstanding the Notification of Accident the Applicant was in fact self-employed and “應該自己承擔” the 1st Accident. He went on to say “另外，2003年9月2日工程後工，[the Applicant]還沒開工，[the Applicant]說腰部不適，當時本人[the Respondent]和[阿勤]都在場，知道[the Applicant]不是因工作而令腰部受傷”. The Applicant fairly admitted he mixed up the chronology of events, namely, that on 3rd September 2003 the Respondent and阿勤 who were present at the Shop knew there was no 2nd Accident, and that on the following day the Applicant claimed to have waist pain and did not want to work. 93. The Respondent claimed the allegation of waist pain must have been due to a pre-existing condition, which was not unusual amongst workers in the decoration trade. Mr Ling criticised him for attributing the Applicant’s waist pain to previous work, say, for the Flower Cage Project. I agree there is no sufficient evidence to show that the Applicant’s work for the Flower Cage Project caused waist pain. But there was evidence to show that the Applicant had lumbar/back pain due to pre-existing degeneration. 94. As seen above, the medical reports of PMH’s AED dated 29th March and 3rd April 2004 noted x-ray of the Applicant’s lumbosacral spine on 5th September 2003 showed degenerative changes and marginal osteophytes. The radiological examination results in the report dated 16th December 2005 (“Report”) by the Applicant’s expert Dr David Cheng (“Dr Cheng”) showed gross degenerative changes over all the lumbar vertebra with marginal ospteophytes and diminished disc spaces, but no evidence of any bony injury or neurological deficit. 95. Dr Cheng confirmed the Applicant had a degenerative back with advanced osteoarthritic changes of the lumbar spine. He explained as follows :
In light of the above, I am persuaded that the Applicant must have had aches and pains due to his degenerative back prior to the 2nd Accident. I reject the Applicant’s denial of any degenerative back, which I find to be an unconvincing attempt to bolster the alleged occurrence of the 2nd Accident. 96. The Applicant attended 2 follow-up treatments at PMH on 18th and 25th September 2003 when he still complained of persistent low back pain. Physiotherapy was started but he defaulted after 2 sessions on 25th and 26th September 2003. No explanation was given for the default, which raised questions over his allegation of persistent back pain. 97. The Applicant claimed that on 3rd October 2003 he had such intense back pain that he could not move his body. He immediately attended AED of Alice Ho Miu Ling Nethersole Hospital (“AHMLNH”). He complained of low back pain and numbness of the buttock region, but physical examination was unremarkable. He was admitted for hospitalisation. The orthopaedic surgeon reported there was some muscle spasm and stiffness of spine, but straight leg raising was full for both sides and there was no neurological deficit. X-ray showed degenerative changes. The Applicant was treated with physiotherapy with reduction in pain and improvement in walking tolerance. He was discharged on 17th October 2003 and arranged to attend follow up at the orthopaedic clinic. He continued with outpatient physiotherapy between 28th October and 4th December 2003 when his condition was deemed static. He was last seen on 26th January 2004. At that time, he still had on and off back pain. The Applicant claimed he went to Mainland China for bonesetter and Chinese medicine treatments. 98. In short, the medical and physiotherapy reports from PMH and AHMLNH revealed subjective reports of the 2nd Accident and back pain, but no organic pathology save and except for advanced degeneration of the back that would result in aches and pains. In my view, any waist pain the Applicant felt on 4th September 2003 and thereafter would have been mild for (a) he managed to go without medical attention on 4th September 2003, (b) no tenderness of spine was elicited upon medical examination the following day, and (c) his early default of physiotherapy treatment. Apart from the degenerative back, there is no satisfactory explanation from the Applicant or on the medical evidence for the serious intensification of back pain to the extent that he could not move his body when he had ceased work and rested for a month since the alleged 2nd Accident. I find that the Applicant’s waist/lumbar/back pain on 4th September 2003 and thereafter was due to his degenerative back and not due to any trauma. 99. I further note that the Applicant was granted 75 days of sick leave for the 2nd Accident and the bulk of it was from 5th September to 14th November 2003. It is interesting that notwithstanding the extended sick leave and continued medical treatment, he did not give any medical certificate in relation to the 2nd Accident to the Respondent at their meetings on 20th January 2004 (see paragraph 108 below) and in April 2004 (see paragraph 114 below) or at any time thereafter. (15) Payment 100. Tang made 3 payments to the Respondent for the Project, ie advance payment of HK$20,000.00 about 3 days before 8th August 2003, the balance of the contract sum for the Project and variation works less HK$2,000.00 on 20th January 2004 (ie the 29th day of the last month of the lunar year), and the remaining HK$2,000.00 upon installation of the metal staircase at the Shop. 101. In January 2004, the Applicant telephoned the Respondent to ask for money. I disagree he asked for wages. I find that the Respondent told the Applicant (a) the metal staircase had not been installed, (b) Tang had not made payment for the works that had been completed, and (c) he had no obligation to pay the Applicant. He promised that on receipt of monies from Tang he would immediately calculate the profit to be shared by the parties, but it was impossible to work out the parties’ entitlements before final calculation. 102. So the Respondent chased Tang for payment. On 19th January 2004, Tang asked the Respondent to collect payment from his Tsuen Wan workshop the following day. The Respondent immediately made arrangements to meet the Applicant at a tea restaurant in Mongkok on the following day. In anticipation of the meeting, the Respondent prepared a breakdown of the income and expenses for the Project (“Breakdown”) that evening. 103. The Breakdown set out “單 $18,367元” (ie cost of materials purchased as evidenced by invoices/receipts) and a list of all workers (ie Wong, SP Ng, 阿勤, 阿許, and 阿亮) together with their respective daily wage rates (which ranged from HK$300.00 to HK$700.00), the calendar days in August/September 2003 they worked at the Shop, and their total wages. The Respondent did not know Wong’s full name and described him as “Fat Wong”. The Applicant denied any knowledge of such nickname, but I do not believe him given that he had known Wong (who was short and fat) for some time and got him to work on the Project. I also do not believe that he did not know who 阿亮 and 阿勤were in light of the events discussed above. 104. The Breakdown recorded that (a) Wong worked at the Shop on 11th-17th August 2003 and for half day on 18th August 2003, (b) SP Ng worked on 17th-18th August 2003, (c) 阿勤 worked on 7th-9th and 14th-15th September 2003, and (d) 阿亮 worked on 8th-9th and 11th-17th August 2003 and for half day on 18th August 2003. I accept this is an accurate record. The Respondent said he used to keep a diary record of the days the workers and parties worked on the Project. When he was absent from the Shop, he would telephone a worker or the Applicant at the Shop to ascertain who was at work there. 105. For the parties, the Breakdown recorded that the Applicant worked on 8th-9th, 11th-17th August and 2nd-3rd September 2003 (ie 11 days) whilst the Respondent worked on 8th-9th, 11th, 16th and 18th August and 2nd-3rd, 7th-9th and 11th-16th September 2003 (ie 16 days). Unlike the other workers, there was no reference to any daily wage rate or total wages for either party. I accept it was because their remuneration as partners was based on the net profit (ie the contract sum less material/labour cost and sundry expenses) and not on any daily wage rate. 106. The Breakdown gave the total income of the Project as HK$62,600.00, ie the price of HK$55,000.00 in the Quotation and the price of the variation works of HK$6,000.00 for constructing 2 metal frames and HK$1,600.00 for dismantling glass panel. Incurred expenses in the total sum of HK$40,784.00 included total labour cost of HK$18,250.00, total material cost of HK$18,367.00 and total cost of food/water of about HK$2,167.00. 107. Thus, according to the Breakdown, the net profit of the Project was “62,600 - 40,784 = 21,816元” (ie HK$808.00 per man-day for the 27 man-days the parties worked at the Shop). The Applicant and Respondent were therefore respectively entitled to share and receive HK$8,888.00 for 11 days’ work and HK$12,928.00 for 16 days’ work. 108. On 20th January 2004, the Respondent collected a cash cheque from Tang and presented it for payment. He then went to a tea restaurant in Mongkok to meet the Applicant, but saw both the Applicant and Wong there. I find it was the Applicant who arranged for Wong (who was recruited by the Applicant) to join them, which was in line with the practice in paragraph 26 above. 109. I prefer the Respondent’s evidence, which had a convincing ring, as to what happened at the tea restaurant. The Respondent said he showed the Breakdown to the Applicant and explained the calculations therein. He requested the Applicant to read and acknowledge the same by signing on the Breakdown. The Respondent fairly admitted that normally he would not have insisted on any signed acknowledgment, but he did so here to obviate any future dispute because the Applicant claimed he was injured and did not resume work. However, the Applicant declined the Respondent’s request, and said he could not read the Breakdown without his spectacles. 110. Under cross-examination, the Applicant claimed the Respondent did not show him the Breakdown and he did not know the material cost for the Project. But he admitted in the 2nd Declaration that the Respondent asked him to sign a paper and he refused, which corroborated the Respondent’s evidence. There was no suggestion that he was shown any paper other than the Breakdown. Further, although the Applicant claimed there was no reason for the Respondent to explain any calculations in the Breakdown to him since he was not a sub-contractor or partner, he said under cross-examination as follows :
In light of the above, I find that the Respondent explained the calculations in the Breakdown and showed such document to the Applicant who refused to sign the same. I further find the Applicant knew all along they were partners. 111. I accept that the Respondent gave the Applicant a cash sum of HK$8,888.00 (ie HK$808.00 x 11 days) being his share of the profit, and a further cash sum of HK$2,500.00 being the balance of Wong’s wages (ie total wages of HK$4,500.00 less advance payment of HK$2,000.00). 112. I find the Applicant’s evidence on how much he was paid on 20th January 2004 unreliable. According to the 2nd Declaration and his witness statement, the Respondent gave him HK$8,800.00 for 11 days’ work and offered to pay HK$4,000.00 as compensation, which he refused. But under cross-examination, the Applicant at times said he received HK$8,800.00 from the Respondent, and at other times said he received HK$8,888.00. Further, although the parties and Wong were all at the tea restaurant, I do not accept the Applicant’s claim that the Respondent paid wages to Wong directly. I find that in line with the practice in paragraph 26 above the Respondent gave wages to the Applicant for him to distribute to Wong (who was recruited by the Applicant). I am not surprised by the Respondent’s careful approach in light of the Applicant’s refusal to sign the Breakdown. (16) April 2004 113. The Applicant claimed that in about April 2004 he chased the Respondent for compensation for his work injuries, but conceded under cross-examination that he did not do so seriously. He did not give any satisfactory explanation why he did not press for compensation or submit medical certificates to the Respondent for payment when, on his case and as seen below, he had ambulatory as well as financial difficulty. However, he admitted that the Respondent refused to pay any compensation. It is evident that the Respondent all along adopted a consistent stance. 114. When the Applicant told the Respondent he had ambulatory difficulty, the Respondent brought him to consult Tam Kwong Ping Herbalist & Bonesetter Medical Centre in Mongkok for bonesetter treatments. But the Applicant stopped such treatment after 3 consultations due to financial reason. (17) Summary 115. I find on balance that the Applicant was a partner and not an employed worker at the time of the 1st and 2nd Accidents. He jointly inspected the Shop with the Respondent to ascertain the particulars of the ironworks with a view to sub-contract the Project. The parties shared responsibilities for the Project with the Respondent liaising with Tang, working out the cost/profit, preparing the Quotation and purchasing materials and with the Applicant carrying out the ironworks at the Shop (in particular welding work) and supervising and/or assigning work to the other workers. Both contributed equipment/tools and recruited workers for the Project. In short, the Applicant and the Respondent were partners for the Project, and both of them were the “bosses” who shared the net profit after deduction of workers’ wages, material cost and sundry expenses. 116. The above conclusion is sufficient to dismiss the Applicant’s claim. However, in case I am wrong, I shall proceed to deal with the issue of quantum briefly. VI. Quantum 117. The Applicant was 51 years old at the time of the 1st and 2nd Accidents. The Applicant remembered that during the SARS epidemic, all workers in the decoration trade did not have enough work and he worked about 5-10 days a month. But for the period between mid-2002 and mid-2003, his average daily wage rate was HK$650.00 (ie his daily wage rate ranged from HK$600.00 to HK$700.00) and his average working days per month were about 20 days, so his average monthly earnings during that period were about HK$13,000.00. On the above evidence, I am prepared to accept that the Applicant’s relevant monthly earnings were HK$13,000.00. 118. In respect of the 1st Accident, the quantum of compensation would have been HK$32,850.67 calculated as follows :
In respect of the section 10 award, I disagree with Mr Ling’s submission that the denominator for the sick leave period should be 20 and not 30. The monthly earnings of HK$13,000.00 were the average earnings over a full calendar month of 30 days. Further, it cannot be assumed that but for the sick leave granted by PMH, the Applicant would have worked for all 13 days of the sick leave period. To use a denominator of 20 would give an inflated amount for the Applicant’s periodical payments. 119. Assuming that the 2nd Accident occurred as alleged and caused personal injuries to the Applicant (which I disagree), it would have been a sprain back injury. I refer to the medical evidence in paragraphs 88 and 94-97 above. The Applicant was treated conservatively with medication and physiotherapy, but the physiotherapist report suggested that he attended physiotherapy only a few times and not exactly a recommended full course. As discussed above, there was no neurological deficit and no organic pathology other than a degenerative back. The clinical findings for the second course of physiotherapy included (a) “Waddell’s signs were charted 4/5” for the 1st assessment and (b) “Waddell’s sign was charted as 3/5” with full sitting straight leg raising for the final assessment. These findings were suggestive of some symptom magnification. 120. Dr Cheng opined that the present condition of the Applicant was on and off back pain of a fluctuating nature and with spasm of the lower limbs at times. The prognosis was fair to good. He took into account the residual aches and pains after a back contusion, especially in a back with fairly advanced degeneration. Although Dr Cheng advised the Applicant to avoid heavy manual work if possible, he agreed the Applicant could still do such work but needed to approach such work sensibly. Dr Cheng opined that a reduction in work efficiency of say 10% was a distinct possibility. He suggested 5% for whole person impairment and loss of earning capacity, and recommended sick leave period of up to 9 months. 121. If there were a contusion injury which amounted to a concurrent cause of incapacity (which I disagree), I believe the back sprain would have been mild since the Applicant could work until 6:15pm on 3rd September 2003, did not seek medical treatment until 5th September 2003, and defaulted the first course of physiotherapy treatment after 2 sessions. After careful consideration of the above medical evidence and the guidance by the Court of Final Appeal in LKK Trans Ltd v Wong Hoi Chung [2006] 1 HKLRD 980 which held that there should be no apportionment between the incapacity attributable to the injury during the accident and the pre-existing condition of the applicant where both were concurrent causes of the incapacity, I would have allowed the appeal against Form 9 and assessed loss of earning capacity for the 2nd Accident at 4%. 122. However, I do not agree that the Applicant should be entitled to sick leave period beyond the assessed period in the Form 9. Dr Cheng did not give any substantive reason why he considered 9 months would be reasonable. The physiotherapist report noted that by the final assessment on 4th December 2003 the Applicant’s condition was static. Indeed, ALMLNH’s medical report dated 26th February 2004 stated that “[when the Applicant] was followed up at our clinic on 31/10/03, the progress of his back condition was already static. Repeated physical examination did not reveal organic pathology.” I am not satisfied that further sick leave would have been therapeutically beneficial. 123. In respect of the 2nd Accident, the quantum of compensation would have been HK$66,536.00 calculated as follows :
In respect of the section 10A award, section 10A(1A) of the Employees’ Compensation Ordinance Cap.282 provides that “[medical] expenses which an employer is liable to pay under subsection (1) shall, unless otherwise provided by agreement in writing entered into by the employer with the employee, not include those in respect of medical treatment given outside Hong Kong in relation to an accident occurring in Hong Kong.” Since no agreement as contemplated by such provision was produced, the Applicant was not entitled to claim for bonesetter and Chinese medicine treatment expenses in Mainland China. 124. Had the Applicant been able to establish liability in relation to the 1st and 2nd Accidents, employees’ compensation would have been assessed and judgment entered in his favour against the Respondent in the sums of HK$32,850.67 and HK$66,536.00 together with interest thereon at half judgment rate from the respective dates of the 1st and 2nd Accidents to the date of judgment and thereafter at judgment rate until payment. VII. Conclusion 125. But given my findings and conclusions on liability, the Applicant’s claim is dismissed. There is no reason why costs should not follow event. I grant an order nisi for the Applicant to pay costs of the action (including all costs reserved) to the Respondent to be taxed if not agreed with certificate for counsel. The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.
Representation: Mr Timothy Ling instructed by the Director of Legal Aid for the Applicant. Mr Richard Li instructed by Messrs Ivan Tang & Co for the Respondent. |
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