Coram: Acting Chief District Judge S. T. Poon in Court
1.The Applicant claims against the Respondent for employees’ compensations arising from an accident happened on 10th April 2009 in a unit under renovation at 2nd Floor, No.18 Fenwick Street (“the Site”). The only issue at trial was whether there was an employment relationship between the parties.
2.The Applicant was a general labourer. He hurt his left index finger when he was using an electric saw to cut a wooden door frame at the Site. Under the Certificate of Review of Assessment (Form 9), he was assessed by the Employees’ Compensation (Ordinary Assessment) Board to have suffered 0.5% loss of earning capacity permanently as a result of the accident. A total number of 47 days of sick leave was granted. There was no appeal by either party against the results.
3.The case of the Applicant was that he had on and off been employed by the Respondent in the past 2 years before the accident as a long-term casual worker. On the day in question, he was employed by the Respondent to work at the Site.
4.On the other hand, the Respondent maintained that he had only employed the Applicant once in November 2008 to work at a construction site at the Ocean Terminal and engaged him as a subcontractor for a project at No. 68 Hennessy Road in March 2009. Regarding the project at the Site, he said that he only asked the Applicant to introduce workers to him and he would pay the Applicant HK$100 per day of work of the workers as reward. The Applicant was never asked or authorised to work at the Site.
5.It was also the case of the Respondent that the Applicant was at the Site on the material date removing debris for sale, without his permission. And actually, the Respondent has made a report to the police soon after the accident alleging that the Applicant has committed theft in misappropriating the debris. However, the Respondent has withdrawn such allegation in a subsequent interview with the police.
6.The present case turns on which version is to be believed.
The Applicant’s version
7.In early April 2009, according to the Applicant, he was employed by the Respondent to do demolition work at the site with a daily wage of HK$750. On 5th April 2009, he was asked by the Respondent to help recruiting 3 more workers to work there. On top of the daily wage, the Respondent promised to pay him an extra amount of HK$100 per day for each of the workers he recruited. The Applicant also requested that the workers’ wages be paid daily, which the Respondent agreed.
8.On 7th April 2009, the Applicant brought the 3 workers[1] to the Site and met the Respondent there. The Applicant and the 3 workers then worked at the Site on the following days until the Applicant hurt himself with an electric saw in the morning on 10th April 2009. During the period, the Respondent attended the Site every evening to pay wages to the 3 workers. As for the Applicant’s wages, it was agreed that it will be paid every half-month.
9.Immediately after the accident happened, the Applicant telephoned the Respondent and requested him to go to the Site. The Respondent arrived there in 45 minutes. The Applicant then asked the Respondent if there is any insurance cover but the Respondent replied in the negative. The Applicant then came up with 3 settlement proposals for compensation and asked the Respondent to consider and give him a reply within the next 3 days. He then went to the hospital by himself.
10.The Applicant went back to the Site the same day at around 6:30 pm and met the Respondent again. Apart from paying the 3 workers their wages of the day, the Respondent also paid the Applicant HK$8,700 representing 10 days’ wages[2] and the introduction fees for the 3 workers for their 4 days’ work.
11.At around 8:00 pm that night, the Applicant received a telephone call from one Mr. Lee on behalf of the Respondent, telling him that the Respondent has insufficient fund to pay compensation to him. The Applicant then told Mr. Lee to tell the Respondent that he can pay half the amount first.
12.The Applicant went to the Site to collect his tools the next day and he met the Respondent there. The Respondent changed his attitude and said that the Applicant’s injury has nothing to do with him. He denied any employment relationship between them. The Respondent also said that he would report the matter to the police.
13.On 20th April 2009 he was asked by the police to give a statement concerning an alleged theft by the Respondent against him. After investigation, no charge has been brought against him.
The Respondent’s version
14.The Respondent contracted the internal demolition work of the Site on 8th April 2009. As his sub-contractor Mr. Lee has insufficient worker to work for the contract, Mr. Lee suggested the Respondent to contact the Applicant for assistance as he knew that the Applicant was able to find workers for him. It happened that the Respondent himself also knew the Applicant as he has at that time sub-contracted to the Applicant construction work relating to another project.
15.The Respondent contacted the Applicant and the Applicant agreed to find 3 workers for him at a charge of HK$100 per man-date.
16.On 10th April 2009, he received a telephone call from the Applicant telling him that the Applicant was injured at the Site and asked him to go there. When he arrived at the Site, he noticed that the Applicant was bleeding at his finger. He felt strange that the Applicant was injured at the Site but the Applicant said that he should be responsible for his injury. The Applicant asked him to pay HK$20,000 as compensation otherwise he would claim employees’ compensation. As the Applicant was not employed by him, the Respondent refused.
17.The Respondent later found out that the Applicant was at the Site because he wanted to take the debris for sale. As the Respondent has never authorised the Applicant to sell the debris, he reported the matter to the police. However, he was subsequently informed by the police that no charge would be brought against the Applicant due to insufficient evidence.
Analysis
18.What the Respondent has suggested was that the Applicant has on as early as 10th April 2009, immediately after the accident, decided to falsely claim against him for employees’ compensation, knowing full well that between them there was no employment relationship.
19.Moreover, the Applicant’s act was so dire that he was at the time of the accident, actually in the course of stealing the Respondent’s property.
20.In his witness statement filed in this action, as mentioned above, it was stated that the Respondent was informed by the police that no charge would be brought against the Applicant due to insufficient evidence. However, in his statement to the police dated 9th May 2009, it was stated that the Respondent has chosen to resolve privately with the Applicant regarding the lost properties and follow-up by police is not necessary. In other words, it was actually the Respondent himself who told the police not to investigate further on the matter.
21.When asked about the above inconsistency on his evidence in cross-examination, the Respondent was unable to give any reasonable explanation. At one point, he put the blame on the police officer who helped writing his police statement but such allegation has never been put forward before.
22.I do not find the Respondent a credible witness and in my view, the version given by him is inherently improbable.
23.As mentioned in the closing submission of Mr. Lau, solicitor for the Applicant, there were also some other inconsistencies amongst the Respondent’s evidence which had not been sufficiently explained. I am not minded to set out all these inconsistencies but suffice to say is that the Respondent had impressed me as a witness who tends to change his evidence whenever he faces difficulties in explaining it when being challenged.
24.On the other hand, the version given by the Applicant is more probable. He reported to the Respondent immediately after the accident happened.
25.Mr. Wong, counsel for the Respondent, submitted that the Applicant must be working like a “superman” if his evidence regarding the amount of work he did was to be accepted. Whilst I accept that the work schedule of the Applicant during the relevant time was tight but I would not say it was extraordinary.
26.It is noted that according to the “account ledgers” produced by the Respondent, there is no entry of any wages paid to the Applicant by the Respondent. However, there are entries with the description of “labour costs” in the ledgers. Even it is accepted that the ledgers recorded all monetary transactions of the Respondent in the relevant period, which is in doubt in the light of the Respondent’s inconsistent evidence, the ledgers cannot serve to disprove the Applicant’s case that he had been employed by the Respondent as a long-term casual worker.
27.In cross-examination, Mr. Wong queried about the various figures the Applicant claimed against the Respondent in the Labour Tribunal and in the present case. I accept that the Applicant might not be perfectly truthful about how he arrived at his claim at the Labour Tribunal but in my view, it has not much effect on the inherent probabilities in respect of the parties’ versions.
28.On the whole, I find that the Applicant’s version of facts is true.
29.I find the Applicant an employee of the Respondent at the time of the accident and the Applicant injured his finger in the course of the employment.
30.Nevertheless, I do not accept that the average monthly salary of the Applicant was as much as HK$22,500, representing 30 working days per month. I find 26 working days, which is accepted by the Respondent, a more realistic and reasonable figure to be adopted for calculation of the Applicant’s monthly salary.
31.The Applicant claims against the Respondent for compensation under Sections 9, 10 and 10A of the Employees Compensation Ordinance Cap.282.
32.The amount of compensation is thus:
Section 9: HK$750x26x72x0.5% = HK$7,020.
Section 10: HK$750x26x4/5x47/30 = HK$24,440.
Section 10A: = HK$702.
33.Judgment is therefore entered against the Respondent in favour of the Applicant in the sum of HK$32,162 and interest thereon at 4% per annum from the date of accident to judgment and thereafter at 8% per annum until payment.
34.Order nisi that costs of this Application be to the Applicant to be taxed if not agreed.
35.The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.
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(Signed)
(S. T. Poon)
Acting Chief District Judge |
Mr. Lau Kar Wah of Messrs Lau & Chan for the Applicant.
Mr. Peter T. K. Wong and Mr. Felix N.W. Li instructed by Messrs Shea & Company for the Respondent.
[1] All Pakistani workers.
[2] It was the Applicant’s case that the Respondent owed him wages for his work at another site.