Zulfiqar Ali v. Mohammad Aslam
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DCEC 261/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO.261 OF 2010 -------------------- BETWEEN
-------------------- Coram: Acting Chief District Judge S. T. Poon in Court Dates of Hearing: 17th & 18th January 2011 Date of Handing Down of Judgment: 29th December 2011 -------------------- JUDGMENT -------------------- 1.The Applicant is a Pakistani National. He entered Hong Kong illegally by sea in May 2008 and thereafter filed a claim for protection against torture to the Immigration Department. He was initially detained but was released in around August 2008. He then resided in the Respondent’s home who had acted as his surety. 2.On 31 December 2008, the Applicant hurt his left fingers and sought help from the A & E Department of Yan Chai Hospital. It is the case of the Applicant that he was hurt by the saw blade when he was doing some renovation work in a flat. He was employed by the Respondent to work there. 3.On the other hand, the Respondent maintained that he had never employed the Applicant. As he was told by the Applicant on the day in question, the Applicant hurt his hand by the chopper while chopping a chicken at home. 4.In the certificate of assessment (Form 7) issued by the Employees’ Compensation (Ordinary Assessment Board), the Applicant was assessed to have suffered from 12% loss of earning capacity and entitled to sick leave from 31 December 2008 to 5 January 2009. The Applicant appealed against the result in reliance on Dr. Patrick Wong’s medical opinion. According to Dr. Wong, the loss of earning capacity should be 14%. The Respondent did not adduce any medical expert evidence. 5.The main issues in this case are thus whether the Applicant injured his fingers in a way as he alleged and whether he was under the employment of the Respondent. Evidence 6.The Applicant gave evidence that he was a carpenter in Pakistan. He first met the Respondent on his release from the Immigration Detention Centre on or around 5 August 2008. The Respondent acted as his surety. Thereafter he stayed at the Respondent’s home in Kwai Chung for around 2 months and the Respondent asked him to pay a rent of HK$6,000. He then worked for the Respondent. 7.In the end of 2008, when he had already moved out from the Respondent’s place, the Respondent asked the Applicant to work for him again to renovate a flat in Kwai Chung. On 29 December 2008, the Respondent took him to the flat and gave him instructions to modify an existing L shaped partition to fit in a new door. 8.The Respondent gave the Applicant the key of the flat next evening. 9.On the morning of 31 December 2008, the Applicant, together with his friend Younus Ikram, went to the Respondent’s home to collect the tools and took them to the flat. As his friend Ali Shoukat had nothing to do on that day, he went to the flat while the Applicant was working there. At around 12:30 a.m., while he was using an electric saw to cut the partition, the ladder which he was standing on swayed, causing him to lose balance and as a result, his left hand came into contact to the blade of the saw and hurt. 10.The Applicant asked Shoukat to take out his mobile phone and telephoned the Respondent of the accident. The Respondent then came to the flat, together with a person who helped him to change his clothes. The Applicant, Respondent and Shoukat then took a taxi together to the hospital. 11.The Applicant was diagnosed with abrasion over the dorsum of left ring finger, open fracture of PIP joints of left middle finger with bone loss and cut extensor tendon as well as open fracture middle phalanx of left index finger with bone loss and extensor and flexor tendon injuries. He was admitted as an in-patient and discharged 5 days later on 5th January 2009. 12.Younus Ikram gave evidence confirming that he went to the Respondent’s flat with the Applicant to collect the tools and delivered to the flat. His evidence was not challenged. 13.Ali Shoukat gave evidence that he went to the flat where the Applicant was working on the relevant date. He saw the Applicant using the grinder on a ladder and heard him let out a cry. He saw the Applicant bleeding at his hand. There was some confusion in Ali Shoukat’s evidence as to whether he has actually witnessed the accident happened. He explained that the confusion was caused by his anxiety for testifying in court for the first time. 14.The Respondent gave evidence that he was once a professional driver driving light goods vehicles but is now unemployed. He helped the Applicant to be his surety because the Applicant was a good friend of him. He stayed in his place from 5th August 2008 to November 2008 but he never employed him. In the afternoon on 31 December 2008, the Applicant telephoned him and told him that he was injured by a knife when preparing food in his kitchen. The Applicant asked him to go to hospital together because the Applicant did not know Cantonese. They met at the entrance of Yan Chai Hospital and he helped the Applicant translate what he said to the staff of the hospital. The Respondent said that as he was the surety of the Applicant, the Applicant must have made use of his personal particulars for lodging a false employees’ compensation claim against him. 15.At the trial, the Respondent applied to call an additional witness who has no witness statement adduced. The witness was allegedly the owner of the property where the Applicant alleged the accident happened. Mr. Clement, solicitor for the Applicant, opposed to the Respondent’s application. For the reasons I have given at my ruling, basically that there was not sufficient reason given by the Respondent for the delay and serious prejudice will be caused to the Applicant, the application was refused. 16.Mohammad Ali, a witness for the Respondent, gave evidence that in the afternoon of the material date, when he was together with the Respondent in his home, the Applicant telephoned the Respondent telling him that he hurt his hand by a knife when preparing food in the kitchen. They then took a taxi to Yan Chai Hospital where they saw the Applicant at the entrance. He asked the Applicant how his hand was injured and the Applicant told him that his fingers got cut by a big knife when he was preparing food in his kitchen. He then went back home without going together to the A & E Department with the Applicant and the Respondent. Discussion 17.I prefer the version of the Applicant to that of the Respondent. 18.If the Applicant really hurt himself when he was preparing food, why would he call the Respondent for assistance immediately, while he could go to Yan Chai Hospital by himself? If the Applicant formed his intention to frame up the Respondent as early as at that stage, why would he tell the Respondent, and in turn translated by the Respondent to the hospital staff, that he was hurt by a knife in the kitchen, but not hurt while he was working? 19.It is unconvincing that the Respondent was called upon only to assist in translation. The Applicant was hurt seriously on his hand and required medical attention as a matter of urgency. It is improbable that he would wait at the entrance for the Respondent to appear before going into the hospital merely for the reason that interpretation was required. For treatment of this kind of wound, interpretation seems to be immaterial. 20.Moreover, the Applicant’s version is supported by his two witnesses. There is no reason to question the reliability of their evidence especially that of Younus Ikram. Although Ali Shoukat has some confusion as to whether he had actually witnessed the accident, I accept that such confusion was due to his anxiety. It is understandable that one would easily get confused, from the perspective of a layman, between actually witnessing the accident and knowing that it had happened when he was present at the scene when the accident happened. 21.On the other hand, the evidence of Mohammad Ali is unconvincing in that there was no reason why he would go together with the Respondent to the hospital and back home upon hearing the Applicant said that he was hurt by a knife in the kitchen. It would be apparent that his evidence was framed to fit the Respondent’s version. 22.In the circumstances, I find as facts that the Applicant was employed by the Respondent to work at the relevant flat on the material date. In the course of his employment the Applicant hurt his fingers by the blade of the electric saw and caused him the injuries. 23.It was the Respondent who told the hospital staff that the Applicant was hurt by a knife and this was the reason why the hospital recorded as such. 24.I find the Respondent liable to the Applicant’s claim under Sections 9, 10 and 10A of the Employees Compensation Ordinance Cap.282. Quantum 25.There is little dispute as to quantum. 26.I accept that the daily wages of the Applicant prior to the accident was $600 and he worked on average 12 days per month. The Applicant paid a total amount of $500 for medical expenses. He received no periodic payments since the accident. 27.The Applicant was 38 years old at the time of the accident and I accept the evidence of Dr. Patrick Wong and find that the Applicant suffers a 14% permanent loss of earning capacity. A sick leave period of 9 months should be given. 28.The amount of compensation is thus:
29.The amount of compensation awarded should be $96,768+ $51,840+ $500= $149,108. 30.Judgment is therefore entered against the Respondent in favour of the Applicant in the sum of $149,108 and interest thereon at 4% per annum from the date of accident to 18th January 2011 and thereafter at 8% per annum until payment. 31.Costs of this Application be to the Applicant to be taxed if not agreed. 32.The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.
Mr. Richard Clement of Messrs Massie & Clement for the Applicant. Respondent in person. |