Ng Chiu Wing (吳朝榮) v. Yip Hoi Ching (葉海青)及另二人

LA/ECC/16467/2007

DCEC 434/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 434 OF 2008

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IN THE MATTER OF AN APPLICATION BETWEEN:-

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Coram  :  H.H. Judge Chow

Hearing dates :  8th and 9th March, 2010

Date of handing down Judgment:  1^st June 2010    

Judgment

1.This is the Applicant’s application for compensation pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”) in respect of personal injuries sustained by him in an accident which occurred on 22.10.2005.  The Applicant also appeals against the assessment issued by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) dated 31.7.2008.  There is no claim for payment of arrears of wages.

Evidence of the Applicant

2.In or about 1995, the Applicant came to know the 1^st Respondent, who often sub-contracted construction site work and indoor decoration work to do.  Commencing from 2002, the 1^st Respondent from time to time employed him at residential flats at Pak Sha Wan and Hunghom, and business premises at New World Centre to work as casual carpentry workers in indoor decoration.  He was paid $700 per day.

3.In October 2005, when he was doing indoor decoration work for the 1^st Respondent at the New World Centre, the 1^st Respondent told him that later on there would be work to do at Happy Valley.

4.On 18.10.2005, the 1^st Respondent told him and another odd job worker Ah Leung to move the tools and equipment to Flat B, 3/F, Smily Co-operative Building, 41, Blue Pool Road, Hong Kong (“the Site”).  On 20.10.2005, the 1^st Respondent instructed him to carry out carpentry and renovation work at the Site.  On that day, the 1^st Respondent did not participate in his work.  On the next day, the 1^st Respondent did not come to work.  On 22.10.2005, the 1^st Respondent and a male came to the Site.  The 1^st Respondent called that man as Ah Mok (“Mok”).  At about 4:15 p.m. when he was using an electric saw to cut a piece of wooden plank, his right index finger was cut by the blade of the electric saw, and sustained injuries to his finger.  The 1^st Respondent immediately accompanied him to go to hospital.  In the course of the journey, the 1^st Respondent asked him not to make a report of his injuries. 

5.He was hospitalized and was discharged on 24.10.2005.  After discharge, he rang up the 1^st Respondent, and asked him for payment of his 3 days’ wages.  The 1^st Respondent said that he was also an employee; he would ask the employer Mr. Mok to pay him his wages.  About 20 days after discharge from hospital, when he was in the Labour Department to deal with a labour dispute relating to the New World Centre where the 1^st Respondent was the 3^rd sub-contractor, he met the 1^st Respondent.  The 1^st Respondent said that he would give him $30,000 as compensation for the injuries he sustained at the Site.

Evidence of the 1^st Respondent

6.By the time of the accident, he had been working at the Site for some time.  There was not enough labourer working in the Site.  So his employer, Mok, asked him to introduce some labourers to work in the Site.  2 to 3 days before the accident, he introduced the Applicant to work at the Site.  He denied that he was not at the Site on 20^th and 21^st October; he was working on a shoe cabinet on these 2 days.  Mok was present on 20^th October onwards and gave instructions to him and the Applicant.

7.He admitted that the tools used in the Site belonged to him and he arranged transport to deliver the tools to the Site.  Mok promised to reimburse the transportation costs of transporting the tools to him.  But the Applicant did not take part in the delivery of tools to the Site. 

8.He denied that he had made an offer of $30,000 to the Applicant to settle his injuries.  It is the Applicant who raised the subject matter, mentioning the figure of $30,000.  He did not ask the Applicant not to make a report about his injuries.

9.He collected wages from Mok together with Leung Kin at a restaurant in Mongkok.  After that he arranged to meet the Applicant at the Kowloon Tong MTR Station and gave him 3 days’ wages.

The evidence of Leung Kin

10.He testified for the 1^st Respondent.  He said that it was after the renovation work had started that the Applicant came to work at the Site.  Prior to the commencement of the renovation work, Mok, the 1^st Respondent and he went to the Site.  There Mok told them how to do the work.  The 1^st Respondent did carpentry work at the Site.  About a week after the project had been completed, he received wages from Mok.  He saw Mok give money to the 1^st Respondent.  He heard Mok say that one share was for electrical work and one share was for carpentry work.

Analysis of evidence

11.The 1^st Respondent provided tools for work at the Site.  These tools were major tools, which included electric saw, saw bed, working table and electric chip.  These tools took up the full load of a van.  Workers (employees) may bring a small quantity of small size tools, like screwdrivers, hammers, but not such big tools, and also not in large quantity.  Only independent contractors would bring big tools to sites, to be used by employees.  The delivery of major tools, in large quantity, to the Site tends to show that the 1^st Respondent was an independent contractor.  His explanation for bringing these tools to the Site was that there was no place for him to place these tools because he would have to take them home after the completion of the project at the New World Centre.  But he also said that these tools had been kept at Ah Fai’s warehouse.  That being the case, he could still keep the tools at Ah Fai’s place, instead of bringing them to the Site. 

12.In court he claimed for the first time that he had paid the Applicant his 3 days’ wages at the Kowloon Tong Railway Station.  He said that it was in the morning on that day that the meeting with Mok for payment of wages was arranged.  When asked why he did not inform the Applicant about such a meeting, he said that he had heard that the Applicant was working on that day.  Initially he stated that he called the Applicant when he was at the restaurant with Mok.  Subsequently he said that he called the Applicant at around 1:00 p.m., but the Applicant said that he was not free.  When asked why he did not call the Applicant in the morning, he then replied that he did call him in the morning at around 11 a.m.  If he had been telling the truth, he would not have been so inconsistent in his evidence.

13.I am not convinced at all that he was telling me the truth.  I do not accept his evidence and the evidence of Leung Kin in so far as such evidence contradicts that of the Applicant.  I am satisfied that the Applicant is an honest witness.  I am satisfied that he was telling me the truth.  I accept his evidence.

14.The 1^st Respondent gave particulars of Mok, the boss of the Site to be the 3^rd Respondent.  He had heard people referring to Mok as the 3^rd Respondent.  The quotation disclosed by the landlord of the Site shows that the contractor responsible for the decoration work was the 2nd Respondent.  I am satisfied that the 2^nd and 3^rd Respondents are sub-contractors of the Site.

15.The Applicant was granted sick leave from 22.10.2005 to 7.12.2005.  The Board made an assessment that the loss of earning capacity permanently caused by the accident and suffered by him was 2%.  According to Dr. Wong See Hoi (“Dr. Wong”), examination of the Applicants’ right index finger on 5.11.2008 reveals the following: -

“- Swelling and mild dusty color over right index finger

-         2 cm linear scar present at dorsal ulnar aspect of PIPJ of right index finger, crossing the dorsal surface circumferentially extending to ulnar radial aspect downward along the medial aspect to MCPJ

-         Flexion deformity of right index finger

-         Mild tenderness on depression

-         Significant decreased right index finger range of movement

-         Decreased right hand grip (in kgf) power

-         Sensation of touch decrease 60% over whole radial aspect of index finger of middle phalange

-         Sensation of touch decrease 50% over right index distal puff

-         Normal sensation of touch on ulnar aspect of right index”

The Applicant has persistent soft tissue inflammation around the scars.  He will have limitation in performing heavy manual labor and fine manipulative work.  He may not be able to return to work as a carpenter.  His loss of earning capacity is assessed at 4-5%.

16.His injury and pain cause him to be less efficient in his work.  He could not withstand prolonged working hours.  He felt pain when using hammer.  His right hand was unstable when he used screwdrivers and tools which required fine handling.  After the accident he could only work as a part-time carpenter.  He has become less competitive as compared with peers.  He was offered less work from his regular customers, because they were aware of his deficiency and prefer employing carpenters with better working efficiency.

17.Before the accident he earned an average of $700 per day.  Working 26 days per month, he made a monthly income of $18,200.  After the accident he earns $700 to $750 per day, working as a carpenter.  When working as an odd job worker, he earns $400 to $500 per day.  After his sick leave had expired, he only managed to work part-time on an average of 10 days per month, about 8 days as a carpenter and 2 days as an odd job worker.  On the average, he earns $6,700 per month ($725 x 8 + $450 x 2).

Compensation under section 9

18.The Hong Kong Paper Mills formula is adopted for calculating compensation payable to him.  His loss of earning capacity is calculated as follows :-

$18,200 - $6,700	x	100%	=	63.18%
$18,200

I therefore allow his appeal in this regard.  At the time of the accident he was 48 years old.  A multiplier of 72 months is to be adopted.  The compensation under section 9 is $827,910.72 ($18,200 x 63.18% x 72).

Compensation payable under section 10

19.Sick leave was granted from 22.10.2005 to 7.12.2005.  Compensation payable under section 10 of the Ordinance is $22,074.84 ($18,200 x 1 16/31 x 4/5).

Compensation under section 10A

20.He incurred medical expenses at the amount of $568.

21.The total amount of compensation payable is $850,553.56 ($827,910.72 + $22,074.838 + $568).

22.I order that the 1^st, 2^nd and 3^rd Respondents do jointly and severally pay the Applicant, within 14 days from today, the sum of $850,553.56, with interest thereon: interest at 50% judgment rate from 22.10.2005 to 31.5.2010, and at judgment rate, from 1.6.2010 until satisfaction.

Costs

23.I make an order nisi, to be made absolute within 14 days from today, that the 1^st, 2^nd and 3^rd Respondents do pay, jointly and severally, costs of this action to the Applicant, to be taxed, if not agreed, with certificate for counsel.  The Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.

The Applicant: represented by Mr. Charles Wong, instructed by M/S Szwina Pang, Edward Li & Co.,Solicitors

The 1^st Respondent:   represented by Miss Wong Bing Yee, instructed by M/S Francis Kong & Co., Solicitors

The 2^nd Respondent:   absent, unrepresented

The 3^rd Respondent:   absent, unrepresented

(I) Please refer to HCMP1935/2011 for the relevant appeal(s) to the Court of Appeal. (II) Please refer to CACV1/2012 for the relevant appeal(s) to the Court of Appeal.