Shafiq Mohammad v. Wong Chor Wai and Another
Read the full judgment text of DCEC 1403/2008 on BabelCite. This District Court judgment was delivered on 22 March 2010.
1. This is an application for employees’ compensation in respect of an accident on 5 April 2008. The application is brought against the 1 st Respondent in his capacity as the Applicant’s employer. Insofar as the 2 nd Respondent is concerned, the application is brought against the company in its capacity as the principal contractor, pursuant to section 24 of the Employees’ Compensation Ordinance, Cap. 282 (‘the Ordinance’).
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DCEC 1403/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 1403 OF 2008 ----------------------
---------------------- Coram: Her Honour Judge Anthea Pang in Court Date of Hearing: 1 March 2010 Date of Judgment: 22 March 2010 ------------------------- J U D G M E N T ------------------------- Introduction 1.This is an application for employees’ compensation in respect of an accident on 5 April 2008. The application is brought against the 1st Respondent in his capacity as the Applicant’s employer. Insofar as the 2nd Respondent is concerned, the application is brought against the company in its capacity as the principal contractor, pursuant to section 24 of the Employees’ Compensation Ordinance, Cap. 282 (‘the Ordinance’). 2.In the 1st Respondent’s Answer filed in this application, he admitted being the Applicant’s employer. Moreover, in both the Form 2 and the 2nd Respondent’s Answer, the 2nd Respondent admitted its role as the main contractor and admitted having sub-contracted the work in question to the 1st Respondent. Therefore, there is no dispute insofar as the parties’ respective roles are concerned. 3.On 5 January 2009, the Employees’ Compensation (Ordinary Assessment) Board (‘the Board’) assessed that the loss of earning capacity permanently caused to the Applicant in respect of the injury he sustained as a result of the accident on 5 April 2008 was 0.5%. This assessment was reviewed by the Board on 6 April 2009 and the loss of earning capacity was revised to 1%. The Applicant does not accept this assessment and has lodged an appeal against the finding of the Board under section 18 of the Ordinance. 4.Initially, the 2nd Respondent was legally represented. However, since March 2009, the 2nd Respondent started to act in person and has since been absent in the hearings that followed. At trial, the 2nd Respondent was also absent but as I was satisfied that the 2nd Respondent had been duly notified of the trial date and had been duly served with all the relevant papers, I directed that the trial should proceed in the absence of the 2nd Respondent. The Accident 5.On 5 April 2008, the Applicant worked as a labourer at a site in Fei Ngo Shan. That morning, while the Applicant, as instructed by the 1st Respondent, was holding the base of a marble pillar when it was being lowered onto a wheeled board, the pillar suddenly swung towards the Applicant. As a result, the Applicant’s right knee was caught between the base of the pillar and the wall behind him. In trying to push away the pillar to release his knee, the Applicant’s right hand was caught between the base of the pillar and the wall. 6.As mentioned above, it is not disputed that, at the time, the Applicant was the 1st Respondent’s employee. In fact, when the accident happened, the 1st Respondent was on the site and was directing the work of the Applicant. On the evidence before me, I am satisfied that, on 5 April 2008, the Applicant sustained the injury by accident arising out of and in the course of his employment with the 1st Respondent. The Applicant’s Injury 7.After the accident, the Applicant attended the Accident & Emergency Department of Ruttonjee and Tang Shiu Kin Hospitals for medical treatment. Tenderness and bruise at his right ring finger were noted and the range of movement of the finger was limited. There were also tenderness and mild swelling of the right knee. X-ray examination showed an undisplaced comminuted fracture of the proximal phalanx of the right ring finger while the right knee was normal. The Applicant was given an orthosplint for 4 weeks. He then received physiotherapy and occupational therapy treatments. 8.As a result of the accident, the Applicant was granted sick leave from 5 April 2008 to 26 October 2008. The 1st Respondent’s Case 9.The 1st Respondent stated that the Applicant was employed by him as a casual worker and, on the day of the accident, it was the first time the Applicant worked for him. According to the 1st Respondent, the site on which the accident took place was the site of the principal contractor, that is, the 2nd Respondent. The agreement he had with the 2nd Respondent was that he would only be responsible for dismantling, installing and transporting 2 marble pillars. He said that under the agreement, he was not responsible for supplying the material or providing the insurance and he would not be held responsible for any other liabilities. 10.The 1st Respondent said that pursuant to the agreement, he would receive HK$7,000 from the 2nd Respondent for the work he carried out upon its completion. At trial, the 1st Respondent told the Court that although he himself has not been paid the agreed sum of HK$7,000 by the 2nd Respondent, he has already paid the agreed daily wage of HK$400 to the Applicant by giving it to the Applicant’s friend who introduced the Applicant to work for him. 11.The 1st Respondent also relied on the Form 2 completed by Ms. May Leung, the manager of the 2nd Respondent, to argue that it was the 2nd Respondent, the principal contractor, who should be held liable to pay compensation in respect of the Applicant’s injury as the Form 2 was completed and submitted by the 2nd Respondent. 12.In this connection, it would appear that the 2nd Respondent had taken out an insurance policy in respect of the site in question and had therefore put down the name of the relevant insurance company and the policy number in the Form 2. However, it later turned out that the accident took place outside the insurance period and therefore, according to the insurance company, the policy was not applicable to the Applicant’s accident. The Issue of Liability 13.Section 5(1) of the Ordinance reads,
14.In the present case, the 1st Respondent admitted being the employer of the Applicant. He further admitted making payment of the agreed daily wage of HK$400 to the Applicant. There is also no dispute and, it is clear from the evidence of the Applicant, which I accept, that the accident arose out of and in the course of the Applicant’s employment with the 1st Respondent when the Applicant helped to move the marble pillar. 15.In the circumstances, I cannot see how it can be argued that the 1st Respondent is not liable to pay compensation to the Applicant. Even if the 2nd Respondent were the one to look after the workers’ insurance as claimed by the 1st Respondent, this could not act as the 1st Respondent’s shield to allow him to avoid his liability to pay compensation to the Applicant and it could not change the fact that the 1st Respondent was indeed the Applicant’s employer at the time. 16.I now turn to the case of the 2nd Respondent. Section 24(1) of the Ordinance reads,
17.On the evidence before me, I find that the 2nd Respondent was the principal contractor in respect of the work carried out by the Applicant on the day of the accident and therefore, the 2nd Respondent is liable to pay compensation to the Applicant under section 24(1) of the Ordinance. 18.My findings are therefore that both the 1st and the 2nd Respondents are liable to pay compensation to the Applicant in respect of the injury he sustained on 5 April 2008 and the liability is several. (see Hip Hing Construction Co. Ltd. v Wong Leung Tak & Anor. [1990] 2 HKC 119, at 134F-G) The Appeal under Section 18 19.On 21 July 2009, the Applicant was examined by Dr. Wong Chin Hong, a specialist in orthopaedics & traumatology. According to Dr. Wong, the Applicant complained about right knee pain after walking for more than one hour and after climbing more than one flight of stairs. He also complained about right hand pain around the base of the right ring finger and the 4th metacarpal bone when lifting objects weighing over 2 or 3 kg. On examination, Dr. Wong noted reduced grip power in the Applicant’s right hand and reduced walking and climbing tolerance in his right knee. Dr. Wong opines that the reduced strength is due to residual pain. His assessment is that the Applicant suffers 2% loss of earning capacity as a result of the injury. In respect of the sick leave granted between 5 April 2008 and 26 October 2008, Dr. Wong opines that the sick leave granted was appropriate. 20.Having considered all the relevant matters and having made reference to the scale of percentages specified in the First Schedule of the Ordinance, I allow the Applicant’s appeal lodged under section 18 of the Ordinance and I assess that the Applicant suffers a permanent loss of earning capacity of 2% as a result of the injury he sustained on the day of the accident. The Monthly Earnings 21.Section 11(2) of the Ordinance reads,
22.Since the Applicant met with the accident on his first day of work with the 1st Respondent, the above sub-section is applicable in this case. At trial, the 1st Respondent said that he has had 25 years’ experience in the trade and, generally speaking, it is difficult to predict what kind of project he would be given. He said that there are no fixed jobs for the casual workers employed by him as much would depend on the urgency of the project and on how much technical work, instead of manual work, would be required. The 1st Respondent told the Court that in his experience, casual workers employed by him would, on average, work for 8-10 days per month. Further, he said that he has never required any casual worker to work on each and every day in a month as there is a lot of work that technical workers do, for example, installation and polishing tasks, but which does not require the assistance of any casual labourers. The 1st Respondent stated that even for technical workers like himself, he would only work for 20-22 days per month on average. 23.In his submissions, Mr. Massie for the Applicant urges the Court to make reference to the Quarterly Report of Wage and Payroll Statistics published by the Census and Statistics Department in June 2008 (‘the Report’) when determining the average monthly earnings of the Applicant at the time of the accident. These figures showed that for miscellaneous non-production workers in the transport services, the average monthly salary was HK$8,986 and the average number of standard working days per month was 25 whereas in the architectural/surveying/engineering firms, the average monthly salary for such general workers was HK$10,122 and the average number of standard working days per month was 25. 24.In the alternative, Mr. Massie seeks to rely on the Form 2 completed by the 2nd Respondent, which stated that the Applicant’s average number of working days per month was 22 days. This information, however, was amended by the 2nd Respondent on 20 January 2009 and it was then stated that the average was 8-10 days. 25.After careful consideration, I decline to adopt the figures published in the Report as the basis to determine the Applicant’s average monthly earnings at the time of the accident for, to say the least, there was too much generalisation concerning these figures. The average number of working days per month (22 days) as originally reported in the Form 2 also does not assist much as the 2nd Respondent amended the figure to “8-10 days” subsequently. 26.On this issue, I accept the evidence of the 1st Respondent and I find that, on average, casual workers or labourers like the Applicant employed by him would only work for 8-10 days per month. The 1st Respondent said such was the case because of the nature of the employment and because of the element of uncertainty in their trade. However, for the calculation of the Applicant’s average monthly earnings, I would adopt 10 days as the basis, which should be more favourable to the Applicant. 27.Therefore, with a daily wage of HK$400, the average monthly earnings of the Applicant at the time of the accident would be HK$400 x 10 = HK$4,000. Compensation under Section 9 28.The Applicant was born on 10 May 1970 and was 37 years of age at the time of the accident. In accordance with sections 7(1)(a) and 9(1)(b) of the Ordinance, the compensation payable to the Applicant is : HK$4,000 x 96 x 2% = HK$7,680. Compensation under Section 10 29.The Applicant was granted a total of 205 days of sick leave from 5 April 2008 to 26 October 2008. This sick leave period was considered necessary and appropriate by both the Board and Dr. Wong. The compensation under section 10 of the Ordinance should therefore be : HK$4,000 x 205/30 x 4/5 = HK$21,867 Medical Expenses 30.The Applicant makes a claim of HK$440 under section 10A of the Ordinance and there are receipts to support the expenses incurred. I therefore allow a sum of HK$440 under this section. Conclusion 31.The total amount of compensation payable to the Applicant in respect of the accident on 5 April 2008 is :
32.The Applicant is entitled to interest on the sum of $29,987 at half the judgment rate from the date of the accident (5 April 2008) to the date of this judgment and thereafter, at the judgment rate until payment. 33.I will also make a costs order nisi, to be made absolute in 14 days, that the costs of this application are to be paid by the Respondents, to be taxed if not agreed. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.
Mr. John Massie of Messrs. Massie & Clement for the Applicant The 1st Respondent, in person The 2nd Respondent, in person, absent |
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