Mohammad Munir v. Yau Kei Tak and Another

CACV 138/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 138 OF 2007

(ON APPEAL FROM DCEC NO. 251 OF 2006)

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BETWEEN

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Before: Hon Rogers VP, Le Pichon JA and Stone J in Court

Date of Hearing: 26 October 2010

Date of Judgment: 26 October 2010

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J U D G M E N T

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Hon Rogers VP:

1.This is an appeal from a judgment of Deputy District Judge Ronald Cheung given on 26 March 2007. The matter before the judge was a claim under the Employees Compensation Ordinance, Cap. 282, in respect of an injury which had occurred to the applicant on 30 April 2004.

2.The applicant’s claim, in a nutshell, was that he was employed on a casual basis to do demolition work at a house in Regalia Bay, Stanley.  He says he was employed by the first respondent, who was a subcontractor of the second respondent.  What was being undertaken was renovation of a house there.

3.The evidence would appear to be that the applicant was paid $450 per day and he had also arranged for two other workers to be employed at the same time to help with the demolition work.  The significant part of the case appears to me to be that the applicant was using a pneumatic drill, or a pneumatic tool, to do the demolition work.  In the course of that, he injured his hand and, since it was his right hand, the injury is quite serious and it is permanent.

4.Unfortunately, the judge below found himself unable to make up his mind as to whether the applicant was an employee or a subcontractor.  Having got himself into that difficulty, he then decided the case on the basis of the burden of proof.  He said the burden of proof was on the applicant and as he could not make up his mind, the applicant had failed in his claim.

5.In my view, the case is quite simple.  The applicant was a Pakistani worker, unskilled, being employed at $450 a day.  If that is not enough, one looks to see what he was employed to do.  He was employed to operate a pneumatic drill to do demolition work.  It takes some imagination to imagine that a man in the applicant’s position, being paid $450 a day, could bring along his own pneumatic demolition equipment.  In any event, that he clearly did not do, because all three workers and the boss all got into a car in Kowloon and went over to Stanley in order for him to do the work.  So one just takes one look at what was happening and the conclusion, in my view, must be that he was an employee. He could not possibly have been a contractor.

6.Unfortunately, the judge then did not go on to consider the matter of quantum.  Very often, this Court would remit the matter for that to be decided by the court below, but, in my view, that would be unnecessary in this case.  The evidence was that the applicant worked approximately 26 days per month - which is possibly high but that was the evidence and it was not challenged.  He certainly did not exaggerate his pay at $450 per day.  That therefore comes to $11,700 approximately per month.  The computation under section 7(1)(a) of the Ordinance would be based on a 96-month period and that would give, therefore, a figure of $1,123,200.

7.The injuries which the applicant has received were described in the doctor’s report.  He had a complete cut of the flexor carpi radialis tendon of the right hand, a complete cut of the flexor tendons of the right index and middle fingers and a 20% cut of the median nerve of the right hand.  As a result of his injuries, he cannot perform the sort of work that he used to do and instead of earning $11,700 per month, he is now earning approximately $6,400 per month.

8.If one applies what is called ‘the Paper Mill formula,’ that would give a present disability of 45.3% and that, in comparison with what is in the schedules of the Ordinance, is not an unreasonable figure.  So taking that figure on the 96-month figure, one reaches an amount of $508,854.90.  To that must be added his sick leave compensation which is 358 days, being from the period of 30 April 2004 to 28 April 2005.  Taking four-fifths of that figure, that would come to $111,696.  In addition, there is an undisputed figure of medical expenses at $740.  So the total amount therefore comes to $621,290.90.  To that must be added interest, which is half the judgment rate until judgment, and the judgment rate thereafter.  The calculations can be done by the solicitors for the applicant.

Hon Le Pichon JA:

9.I agree.

Hon Stone J:

10.I too agree.  I would add only that it seems to me odd, if I may respectfully say so, that the learned judge found this case difficult to decide in light of the fact that he specifically accepted that there were “many unsatisfactory features in the evidence of the 1st Respondent” and, indeed, expressed reservations about the credibility of the 1st Respondent and of the 1st Respondent’s demeanour which did not impress the judge as being truthful.  He went so far as to say the 1st Respondent was “not a skilful liar”.

11.On the other hand, as Mr Sakhrani for the Applicant has pointed out, the learned judge never really got to grips with and assessed the quality of the Plaintiff’s evidence, save for confining himself to posing purely rhetorical questions of his own to which he was able to find no answer.

12.In my view, the case was clear on the evidence before the learned judge.  The Plaintiff was an employee of the 1st Respondent, and the learned judge should thus so have found.

Mr Ashok K Sakhrani, instructed by Messrs Lo, Wong & Tsui, for the Applicant/Appellant

The 1st Respondent/Respondent, in person, absent

The 2nd Respondent/Respondent, in person, absent