Yau Kam Man v. Chan Kwok Chung
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DCEC 1277/ 2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION NO. 1277 OF 2008 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge Clement Lee in Court Dates of Trial: 22nd ,25th and 26th October 2010 Date of Handing Down Judgment: 30th November 2010 ------------------------ JUDGMENT ------------------------ A. INTRODUCTION 1.This is the trial of the application of Mr.Yau Kam Man for compensation under sections 9, 10 and 10A of the Employees Compensation Ordinance (Cap 282) (“ECO”) regarding an alleged accident that took place on 20th November 2007 during which he allegedly suffered injury while at work. Both parties filed notices of appeals against the Employees’ Compensation Board’s assessment issued on 9th September 2009. 2.The main issue is whether the Applicant was employed by the Respondent at the time of the accident. Other areas in dispute include (i) whether accident occurred on 20th November 2007; (ii) the percentage of loss of earning capacity and the number of days of sick leaves that the Applicant is entitled to under section 10 of the ECO. 3.The Applicant testified and called Mr. Yu Lui Shing (“Yu”) to testify. The Respondent testified. The joint medical expert reports of Dr. Fu Wai Kee (“Dr. Fu”) and Dr. Daniel KH Yip (“Dr. Yip”) were adduced without calling the makers. B. THE EVIDENCE B-1 The Applicant’s evidence and the accident 4.The Applicant gave evidence and confirmed his 3 witness statements. In summary, the relevant part of his evidence in support of the present application is as follows.
B-2 Yu’s evidence 5.Yu gave evidence for the Applicant and confirmed his witness statement dated 30th June 2009. In summary, the relevant part of his evidence in support of the Applicant’s case is as follows.
B-3 The Respondent’s evidence 6.The Respondent gave evidence and confirmed his witness statements. In summary, the relevant part of his evidence is as follows.
C DISCUSSION 7.Based on what the Applicant said, it seems that the gist of the Applicant’s version is this. It was Lee who employed him at first in September 2007 but Lee did not pay him wages in arrears in the sum of $1,125. He refused to work there. Not until 17th November 2007 did he change mind when Kwan allegedly told him and handed him $375, saying that it was from Chan who also asked him to finish the work there. The credibility of his version of the events on 17th, 19th and 20th November 2007 became important. 8.I find that the Applicant is an incredible and unreliable witness. Firstly, he frequently gave convoluted answers to simple but important questions. Secondly, he sought to overturn an important part of his pleadings (pre-trial earnings) and shift the blame to his lawyers. Thirdly, his versions in court were against his own contemporaneous documents on material aspects. I shall elaborate the above reasons in detail. 9.Regarding the convoluted answers to simple and important questions, first and foremost, during cross examination, Counsel for the Respondent, Mr. Wright asked him had he considered the Respondent as his employer as at 20th November 2007, why he filled in “Lee Sze” as the employer and the Respondent as the principal contractor in the notification of employee compensation claim dated 7th December 2007? He said that he was interviewed by Lee Sze before he worked for him. Similar questions were repeated and his final answer was that he also found it strange, he has not come across the situation and therefore he just put down Lee Sze, not the Respondent, as the employer. Secondly, when he was put that Lee Sze was his employer, he often repeated that Lee just interviewed him. Same questions were repeated until he said that Lee was not his employer. He said that Lee was just a foreman, a supervisor of his work. He tried to change his version on employer from Lee Sze to the Respondent for the purpose of this claim but he could not speak louder than document that shortly after the alleged accident, he filled in Lee as the employer in the document, not the Respondent. 10.Thirdly, Mr. Wright asked him, during the period from 2004 (when he returned to Hong Kong from the PRC) and before he allegedly worked for the Respondent (on or about 21st September 2007), how much he earned from his bird cage business? He often repeated that his bird cages were stolen in the PRC. Same questions were repeated for 4 times until he answered that he earned about $2,000 monthly. 11.Fourthly, regarding the important and controversial receipt of $375 written by himself, he was put that he never mentioned in his witness statements that he made a photocopy and kept the photocopy, he kept on repeating that he did tell his lawyers. Same question was repeated and he still maintained that he did say so, but in fact it was not mentioned in his statements. 12.Fifthly, when he was repeatedly asked whether Kwan brought the tools to the premises, he said that there were 2 ladders that he has never seen, then he said there were many tools, he did not know what were the tools and his final answer is “No”. 13.Sixthly, when the joint medical expert report states that despite his complaint of pain and injuries, why did he often default in attending physiotherapy treatment and assessment, similar questions were repeated about 5 times until he answered that he did not refuse as much, he just refused one out of a few options open to him. But the alleged options were not mentioned in the report. 14.Seventhly, when he was asked whether he told the ambulance man that he fell from 3 feet, he gave a seminar on what is 5 step ladder or 4 step ladder. 15.Eightly, whether he told the occupational therapist that he had “old back injury 5 years ago”, he evaded the question until he finally answered what he meant is “thigh injury 5 years ago”. 16.Regarding retraction from his pleading, it is crystal clear that in paragraph 3(6) of his Employees Compensation Application filed on 22nd October 2008, he averred that his monthly earnings immediately preceding the accident was HK$15,000 and on average during the 12 months prior to the accident was also HK15,000. In court, he repeatedly stressed that it is impossible that he earned so much, otherwise, he would be in trouble when at that time he was receiving Comprehensive Social Security Assistance (“CSSA”). 17.Regarding inconsistent versions between his oral testimonies and his written statements, to begin with, the gist of his written version is that Lee Sze was the one who decided to employ him in about September 2007 but after Lee disappeared in or about late October 2007, the Respondent asked him to finish the plastering work for him and the Respondent became his employer. However, he said in court that as early as in September 2007, he regarded the Respondent as his employer, he exaggerated more in court than in his statement. Further, the joint medical report states that he owned his shop for selling bird cage in Hong Kong in 2004 but he denied having said so to the doctors in court. 18.After all, his written statements transpire that it was from Lee Sze or Kwan that he understood the Respondent was his employer, however, he failed to obtain Lee Sze or Kwan to testify. He said that Kwan had financial problem and he did not return to his flat in Shun Li Estate. He did not tell the Court when and what attempts were made to locate or contact this important witness. His solicitors has not even attempted to apply for or serve a subpoena on Kwan’s Shun Li’s address and Counsel for the Applicant told me that the solicitors did not have Kwan’s last known address. He relied too much on what he was told by Lee and Kwan and it is too coincident that Lee and Kwan disappeared. 19.Mr. Yau impressed me as an extremely incredible and evasive witness, he made use of Lee and Kwan’s disappearance and concocted a story against the Respondent when he knew and ought to have known that the Respondent was not his employer. From his testimonies including Lee’s decision to employ him and Lee was supposed to pay him wages, Lee seemed to be his employer more than the Respondent, for the reason that was only known to him, he told a pack of lies with the intention fill in the gaps of these inherent weakness. 20.In short, I find that there was no employment relationship between the Applicant and the Respondent at the time of the accident. Had the Respondent asked the Applicant to complete the plastering works through Kwan on or about 17th and 19th November 2007, the Applicant did not mention how much he was to be paid, when he was to be paid, how he was to be paid, for how long was he supposed to complete the plastering works. He must be very concern about his wages because Lee allegedly failed to pay him before. I must also bear in mind that the day before the accident, the Respondent reported to the police that he was fearful of Lee’s subcontractors would damage the Premises. 21.Yu was not a credible and reliable witness. He states in his written statement that Lee disappeared suddenly without completing the renovation works. In Court, he said that Lee disappeared and reappeared again for at least 2 times during September and November 2007. Yu once said that Lee disappeared probably due to the fact that he owed his friend, the Applicant wages and “dared not to face them.” He considered that Lee should pay the Applicant arrears of wages. Yu also seemed to be a good friend of the Applicant and Lee. But Yu did not mention that he had asked Lee to pay the Applicant’s arrears of wages when Lee reappeared. Yu was not telling the whole truth. Yu was not a reliable witness. 22.In contrast, the Respondent is a honest and reliable witness. He is hardly shaken during cross examination. He once said that he lost contact with Lee since 17th November 2007 and never had any contact with the Applicant. He later clarified that he lost contact with Lee after 18th November 2007. The telephone logs seem to suggest that the Applicant called him twice as aforesaid. The Respondent clarified that the 1st call might relate to demand for wages but he did not recall what did he say in 2nd call. His explanation on the 2nd call was also supported by the Applicant’s version. The Applicant said that after the alleged accident, he called Chan again who disconnected the line quickly. I do not see how these minor discrepancies can outweigh his credibility in general. One must bear in mind that the undisputed evidence is that he reported to the police on 19th November 2007 with emphasis on 2 matters, namely he lost contact with Lee and the sub-contractors kept on asking him for wages and he feared that his flat would be damaged. Further, one cannot alter the fact that he was not able to reach Lee after 18th November 2007. He also put down on record that Lee’s subcontractors might damage his house. It seems to me that his conduct on 19th November 2007 could not have possibly asked Kwan on 17th or 19th November 2007 to contact the Applicant to work in the Premises. 23.All in all, I reject the evidence of the Applicant and his witness and I accept the Respondent’s evidence unless there is no conflict between the two. From the above factual matrix, there is no employment relationship between the Applicant and the Respondent at the time of the alleged accident, the application must be dismissed. For the avoidance of doubt, it is my ruling that the Respondent is not a principal contractor vis-à-vis the Applicant. 24.In Poon Chau Nam v. Yim Siu Cheung [2007] 1 HKLRD 951, the Court of Final Appeal expounded that the modern approach to the question whether a person was an employee was to examine all the features of their relationship against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment. This involved a nuanced and not a mechanical approach: painting a picture from the accumulation of detail. The indicia included the degree of control exercised by the “employer”; whether the person performing the services provided his own equipment; whether he hired his own helpers; what degree of financial risk he took; what degree of responsibility for investment and management he had; and whether and how far he had an opportunity of profiting from sound management in the performance of his task. 25.Having rejected the Applicant’s evidence and in light of the above factual matrix, the Applicant’s evidence is not even sufficient to invoke the consideration of control test. The overall impression is that the Respondent was a mere customer of Lee. He had no employment relationship with the Applicant. Lastly, I do not find it necessary to rule on whether there was an accident as alleged. D QUANTUM OF COMPENSATION 26.Had I been wrong on the question of liability, I would have made the rulings on quantum as follows. To begin with, the burden lies on the Applicant to prove the quantum of compensation he is seeking under the various sections of the Ordinance, and to show that I should replace the Board’s assessment with my own. 27.On 9th September 2009, the Employees’ Compensation (Ordinary Assessment) Board issued the certificate of review assessment (Form 9) confirming 260 days of sick leave as his absence from duty necessary as a result of the right wrist and back injury resulting in right wrist pain and low back pain. The Board maintained that his permanent loss of earning capacity at 6%. The Board made the remarks that it does not arbitrate the dispute on liability for compensation but assess the quantum of loss caused by the injury. 28.The Applicant overturned what has been pleaded about his pre-trial earnings and suggested that his earnings from the bird cage business before the alleged accident were about $2,000 monthly. Joint orthopedic reports 29.The Applicant was jointly examined by his own expert, Dr. Fu Wai Kee and the Respondent’s expert, Dr. Daniel Yip on 9th October 2009. In their 1st joint report dated 21st November 2009, Dr. Fu opined that for the right wrist injury, the Applicant has received a long course of treatment and he still has persistent symptoms. Dr. Fu opined that the Applicant should have arthroscopic surgery for his right wrist. The result of surgery is usually good. However, there are small risks like infection, damage of nerves or tendons. Some patients will still have residual pain after the surgery. The Applicant must accept these risks before the surgery. The cost of surgery in public sector is nominal. The cost of it in private sector is around $40,000-$50,000. He will need around six weeks of sick leave for rehabilitation after the surgery. If he refuses the surgery, his condition will be static and no more treatment will be required. For the back pain, Dr. Fu believes he does not need further treatment and his condition has reached maximal medical improvement. 30.Dr. Fu states the tenderness over ulnar joint line with positive grinding test is very suggestive of TFCC tear. In view of his present physical condition, Dr. Fu agrees with occupational therapist that the Applicant cannot return to his original work. He should shift to lighter duties such as security guard or gas station attendant. He should have no problem in working as salesperson in his own bird cages shop. Dr. Fu opines that the sick leave he received is appropriate for the Applicant’s condition. 31.In the 2nd joint report dated 22 April 2010, both experts examined further treatment records of the Applicant. Dr. Fu opines that if there is query on the pathology of the wrist, the Applicant should have a MRI of wrist to confirm the pathology in the wrist. If TFCC tear is found, then surgery as suggested by Dr. Fu in the last report should be done. The MRI can also confirm whether there is really STT arthritis as mentioned. Concerning the working capacity, Dr. Fu maintains previous opinion. 32.I agree with Counsel for the Applicant that the opinion of Dr. Fu is more convincing than that of Dr. Yip for the following reasons. Firstly, Dr. Yip observes the hand profile for the injured right side is skewed toward the right (positions 4 and 5) and opined that the abnormal shape further indicates submaximal effort. However, in paragraph 6, line 5, he notes there was MCPJ deformity of the two lesser fingers of the Applicant. Furthermore in the same paragraph 7, Dr. Yip states that there is absence of any muscle wasting in the right forearm which in fact is still of greater girth than non-injured left side, even after almost 2 years of alleged disability. On this, Dr. Yip fails to mention that the Applicant was right hand dominant. 33.Further, Dr. Yip goes so far as to say that “the Applicant may not even have any real intentions of going back to the work as a plasterer”. Although he adds that this is a matter for the Court, his views on the Applicant’s intention to resume work is clearly something beyond Dr. Yip’s expertise. Paragraph 14 refers to Dr. Yip’s understanding from the joint assessment that the Plaintiff is doing quite well from his own business in China and Hong Kong. I agree that this has nothing to do with whether the Applicant is medically fit to resume pre-injury work. 34.Dr. Yip’s comments about the Applicant’s first mention of back pain on 30th June 2009 since the first orthopaedic consultation in November 2007 is factually incorrect. Dr. Fu points out that in the occupational therapist’s report dated 29th April 2008 and 29th May 2008, back pain was reported. 35.From the above joint medical reports of Dr. Fu Wai Kee (for the Applicant) and Dr. Daniel KH Yip (for the Respondent) dated 21st November 2009 and 22 April 2010, their respective views are:-
36.In essence, I am of the view that the assessment of loss of earning capacity shall increase from 6% to 7% and the number of days of sick leaves shall remain at 260 days. 37.Although the Applicant once said that his pre-accident monthly earnings was about $2,000, the Respondent did not challenge his daily rate of $750 as a plasterer at the material time. I would accept that had he worked as a plasterer, he would have earned $750 daily. Next question is the number of workings days. I agree that the provision in Section 11(2) applies but I do not agree to the submission of the Applicant’s counsel that the average earning premised on the basis of 22 working days a month. The reason is that even on the Applicant’s version, he did not treat himself as working on 21st September 2007. He treated himself as working half day on 22nd September 2007 and full day on 2nd October 2007. There is no other documentary evidence to suggest his average number of working days as a plasterer monthly. During the period from 21st September 2007 and 2nd October 2007, it seems that at most he worked 2 days bi-weekly. I am of the view that his average working days as a plasterer a month is 4, multiplied by $750, that he might have earned $3,000 monthly. However, the finding on $3,000 is less than $3,490 as provided under section 11(5) of the ECO. By the application of section 11(5), his monthly earnings is deemed to be $3,490 for the purpose of calculating compensation. 38.Adopting 7% loss of earning capacity, the compensation payable under section 9 would be: $3,490 x 72 x 7% = $17,589.60 39.Sick leave endorsed under Form 9 amounts to a total of 260 days.Under section 10, the compensation payable would be: $3,490 x 4/5 x 260/30 days = $24,197.33 40.For his consultation with private doctors on 3 occasions and limited to a maximum sum of $200 each time, the total expenses were $550. 41.Subject to liability, the Applicant’s compensation is
Conclusion 42.For the reasons set out above, had the Respondent been held liable, the compensation for the Applicant under the Ordinance should be: (a) HK$17,589.60 under section 9, (b) HK$24,197.33 under section 10, and (c) HK$550 under section 10A. The Applicant is further entitled to interest on these sums at half judgment rate from the date of injury to the date of judgment, and thereafter at judgment rate until full payment. 43.In summary, the Application is dismissed. Costs order nisi be made in that the costs of the Application be to the Respondent with certificate for counsel. Such costs shall be taxed if not agreed. The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations. Unless any of the parties seek to vary the costs order nisi by way of summons within 14 days from the date hereof, the cost order nisi shall become absolute 14 days from the date hereof.
Mr. Dennis Law instructed by Messrs. Rita Law & Co for the Applicant. Mr. John Wright instructed by Messrs. Mayer Brown JSM for the Respondent. |