LI CHE KEUNG v. CHAN KAM WA t/a J & J DESIGN DECORATION

DCEC 423/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 423 OF 2011

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IN THE MATTER OF AN APPLICATION BETWEEN:

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JUDGMENT

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INTRODUCTION

1.  This is an application for compensation by the applicant pursuant to Sections 9, 10 and 10A of the Employees’ Compensation Ordinance Cap 282 (“the ECO”) arising out of an incident to the applicant on 19 June 2010 (“Incident”).

2.  On the day of the Incident, the applicant was carrying out renovation work at Flat B, 13^th Floor, Block 3, Charming Garden, No 16 Hoi Ting Road, Kowloon (“the Premises”).  Whilst using a cutter to cut materials for the purpose of fixing a door frame in the Premises, the applicant cut his right index finger thereby sustaining bodily injuries.

LIABILITY

3.  Pursuant to Section 5(1) of the ECO, an employer is only liable to pay compensation under the ECO if personal injury by accident arising out of and in the course of employment is caused to his employee.

4.  Accordingly, pursuant to Section 5(1), the applicant has to prove the following to be entitled to compensation:-

(1)  the applicant was at the material time employed by one of the respondents;

(2)  the applicant suffered personal injury by accident; and

(3)  the accident arose out of and in the course of employment.

Who was the applicant’s employer?

5.  The 1^st and 2^nd respondents do not appear to dispute that at the time of the Incident, the applicant was an employee but what they do dispute is who was the applicant’s employer.  The 1^st respondent points to the 2^nd respondent and vice versa.

6.  The applicant does mainly carpentry works.  According to the applicant, he had known the 1^st respondent for 20 odd years.  The 1^st respondent is a renovation contractor.  The applicant’s evidence is that he met the 1^st respondent again in around August 2009 when he started to work as a casual labour for the 1^st respondent trading as J&J Design Decoration.  According to the applicant, the 1^st respondent agreed to pay the applicant a daily wage of HK$800 payable every 10 days.  The 1^st respondent would usually pay the applicant in cash or sometimes by cheque.  The applicant said that the 1^st respondent would usually telephone him one or two days before to see whether he was available to do work for the 1^st respondent.  If the applicant was available, the 1^st respondent would give instructions to the applicant as to what he had to do over the phone or if no such instructions were given over the phone, the 1^st respondent would give the instructions on the applicant’s first day on site and that if the applicant encountered any problems during the course of his work, he would seek instructions from the 1^st respondent.  The applicant said that he did mostly carpentry work.  At times, he also did paint and electrical works.  According to the applicant, the 1^st respondent also engaged other workers on site.  The applicant’s working hours were from 9 am to 6 pm with 1 hour lunch between 12 noon and 1 pm.  The applicant said that if he had to work overtime until 8pm, he would be paid half his daily wage ie HK$400 and if he had to work overtime until 10pm, he would be paid HK$800.  It is worth mentioning that the 1^st respondent had been in arrears of salary which the applicant did not recover until he commenced proceedings in the Labour Tribunal in 2010 (in LBTC3663/2010) where the Tribunal ordered the 1^st respondent to pay the applicant his outstanding salary of HK$14,000.

7.  The applicant said that on the days when he was ill and could not turn up at work, he needed to telephone the 1^st respondent to take sick leave and subsequently submit sick leave certificate(s) to the 1^st respondent and that he would not be paid for the day(s) he took sick leave.  According to the applicant, the 1^st respondent was responsible for providing large items of equipment such as electric saw, electric drill and air spray.  Whereas the applicant would have with him small tools such as hammer and chamfer.  In general, the materials were provided by the 1^st respondent.  If no materials were provided, the applicant would purchase them and subsequently seek reimbursement from the 1^st respondent.

8.  It is of significance that the 1^st respondent accepts in his evidence that he was the applicant’s employer prior to the Incident but that and curiously, the 1^st respondent claims that on the day of the Incident, it was the 2^nd respondent who was the applicant’s employer.

9.  The applicant said in his evidence that on 18 June 2010, the 1^st respondent telephoned and asked whether the applicant could work at the Premises on 19 June 2010.  According to the applicant (which the 1^st respondent accepted in his evidence), the 1^st respondent’s request was no different from his many requests in the past to do work.  Although in the telephone conversation, the 1^st respondent did not say what work the applicant had to do and how much he would be paid, the applicant said in his evidence that he understood from his previous dealings with the 1^st respondent that he would be doing carpentry, paint or electrical works and that he would be paid a daily wage of HK$800.  In fact, according to the applicant, since his discussion with the 1^st respondent in August 2009 (as referred to in paragraph 6 above) that the applicant would be paid a daily wage of HK$800, there had been no further discussions between the two of them on the applicant’s wages.  The applicant said (which the 1^st respondent accepts) that during the telephone conversation, the 1^st respondent did not say that for the purposes of working at the Premises, the 2^nd respondent would be the applicant’s employer or that the 1^st respondent was merely introducing the applicant to work for another.

10.  As matters unfolded, the applicant had to do rectification work to the defective renovation carried out to the Premises by the 2^nd respondent’s previous contractor who had since abandoned the work.  The 2^nd respondent is the registered owner of the Premises.  Both the applicant and the 2^nd respondent said in their evidence that prior to 19 June 2010, they did not know each other.

11.  The applicant said in his evidence that on the day of the Incident, the 1^st respondent who was also present at the Premises, gave instructions to the applicant as to what he was required to do.  The applicant was instructed to change the corridor timber flooring, repair and repaint the door frame(s) and inspect the pipes in the kitchen and bathroom for leakages. The applicant said that at no time, did the 1^st respondent suggest to him that he should discuss the question of payment or the work to be carried out with the 2^nd respondent and/or his mother who was at the Premises on the day of the Incident.

12.  In my judgment, from the matters referred to in paragraphs 9 to 11 above, the applicant’s assignment to work at the Premises on the day of the Incident was no different from his previous assignments with the 1^st respondent prior to the date of the Incident.

13.  It is the 2^nd respondent’s evidence that the applicant did not carry out his work properly and that the 2^nd respondent’s mother complained to the 1^st respondent regarding this who had confirmed that he would speak to the applicant.  The 1^st respondent accepts that he had received a complaint on the applicant’s performance but said that it came from the 2^nd respondent’s wife (as opposed to his mother). The 1^st respondent’s case is that he had subsequently telephoned the applicant regarding this.  The applicant claims that he has no recollection of these events.  I am satisfied on the evidence that someone from the 2^nd respondent (whether it be the 2^nd respondent’s mother or wife) had complained to the 1^st respondent on the applicant’s performance and that the 1^st respondent had subsequently spoken to the applicant regarding this.  In my judgment, this points to the direction that it was the 1^st respondent who was the applicant’s employer.  If the 2^nd respondent was the employer, logically, there would have been no need for the 2^nd respondent’s mother/wife to have complained to the 1^st respondent.  They could have directly spoken to the applicant on the spot.  Further, the 1^st respondent would not have taken on the trouble of speaking to the applicant on this.  In my judgment, he would have told the 2^nd respondent to speak to the applicant directly.

14.  There appears to be no dispute that there remained various materials at the Premises and that the 1^st respondent had told the applicant to buy outstanding materials.  The 1^st respondent’s evidence is that he gave the applicant HK$500 for such purpose.  If the applicant was really not the 1^st respondent’s employee, it is difficult to see why the 1^st respondent would have made the payment out of his own pocket.

15.  The applicant testified that the following day after the Incident on 20 June 2010, he telephoned the 1^st respondent and said that in view of his injuries, he would not be able to resume work for some time, he requested the 1^st respondent to liase with the 2^nd respondent for the applicant to collect his tools and clothes from the Premises.  The applicant also said in that telephone conversation that he would tender his sick leave certificate to the 1^st respondent for him to pass onto his insurers for employees’ compensation purposes.  The 1^st respondent later returned call saying that the applicant was free to go to the Premises to collect his tools and that he should tender his sick leave certificate to the 2^nd respondent. According to the applicant, when he heard this, he found it to be odd but nevertheless he proceeded as instructed.  The applicant said that later in the day when he returned to the Premises and tried to tender his sick leave certificate to the 2^nd respondent, the 2^nd respondent refused to accept it saying that it had nothing to do with him (in this regard, the 2^nd respondent’s evidence is that as he was not present at the Premises at the time, the applicant sought to tender the sick leave certificate to his mother who had refused to accept it as the 2^nd respondent was not the applicant’s employer).  According to the applicant, at the time, the 2^nd respondent’s mother asked the applicant what was his daily wage and paid the applicant HK$800 saying that she had in any event to pay that sum to the 1^st respondent and might as well pay it to the applicant.  The 2^nd respondent’s evidence on this is that after the Incident, the 1^st respondent telephoned the 2^nd respondent’s mother and told her to pay the HK$800 to the applicant on the 1^st respondent’s behalf.  Although the 1^st respondent had persistently said in his answer to the applicant’s application for employees’ compensation dated 19 August 2011 (“Answer”) and in his witness statement dated 29 November 2011 that it was the applicant who had attended the Premises on his own initiative to collect the HK$800 from the 2^nd respondent/his mother, upon cross-examination by Mr Gary Chung, counsel for the applicant, the 1^st respondent admitted that he had requested the 2^nd respondent’s mother to pay the HK800 to the applicant.  In my judgment, the paragraphs to follow will explain why the 1^st respondent had requested the applicant to tender the sick leave certificate to the 2^nd respondent and requested the 2^nd respondent’s mother to pay the HK$800 to the applicant.

16.  The applicant said that after his visit at the Premises on 20 June 2010 referred to in paragraph 15 above, he telephoned the 1^st respondent and told him that the 2^nd respondent had refused to accept the sick leave certificate.  The 1^st respondent then told him to attend at his offices on the following day to give him that certificate.  It is of significance that when the applicant gave his sick leave certificate to the 1^st respondent on the following day, and asked the 1^st respondent to report the matter to his insurers for employees’ compensation, the 1^st respondent told the applicant that his employees’ compensation insurance had already expired.  Whilst the 1^st respondent accepts that he had told the applicant to give him the sick leave certificate, the 1^st respondent said that he would be passing that certificate to the 2^nd respondent.  The 1^st respondent then said in his evidence that he had subsequently telephoned the 2^nd respondent regarding this but the 2^nd respondent refused to accept the sick leave certificate.  In my judgment, faced with such a situation and if the 1^st respondent really considered that the 2^nd respondent was the applicant’s employer, the simplest thing for him to do was to return the sick leave certificate to the applicant however, not only did the 1^st respondent not do so but according to the 1^st respondent he had kept the certificate which he had subsequently lost in the course of moving offices.  The truth in my view is that the 1^st respondent did not tell the applicant that he would pass the sick leave certificate to the 2^nd respondent.  He had only made this up during the course of being cross-examined.  This is consistent with the fact that the 1^st respondent did not mention this in his Answer and witness statement.  Further, in his evidence, the 2^nd respondent confirmed that after 20 June 2010, the 1^st respondent did not approach the 2^nd respondent further on the issue of sick leave certificate.  On the issue of employees’ compensation insurance, the 1^st respondent’s evidence is that he did not say to the applicant that he did not have a valid insurance at the time but that he did not purchase one for applicant to work at the Premises.  In my judgment, if indeed, the 1^st respondent was not the applicant’s employer, there would have been no need for the 1^st respondent to tell the applicant that he did not have a valid employees’ compensation insurance at the time whether it had expired or that he did not purchase one at all.  The 1^st respondent could have simply told the applicant that he was not the 1st respondent’s employee.  The 1^st respondent sought to explain this in his evidence by suggesting that as he was the one who had introduced the applicant to the job and he was injured from it, the 1^st respondent felt that he had a moral duty to help the applicant to recover compensation from the insurers.  As Mr Chung had rightly put it to the 1^st respondent in cross-examination (which the 1^st respondent accepted) that he was effectively seeking to deceive his insurers if the applicant was indeed not his employee.  In my judgment, the truth was that the 1^st respondent knew that the applicant was indeed his employee which explains why he had told the applicant that he did not have a valid employees’ compensation insurance to cover the applicant.  At this juncture, I would mention that having heard the 1^st respondent’s evidence and for the matters discussed above, I take the view that he has not come forth as a truthful witness.  I feel that I am unable to rely on his evidence.  Where the 1^st respondent’s evidence conflicts with the evidence of the applicant and the 2^nd respondent, I prefer the evidence of the applicant and the 2^nd respondent.  I find that the evidence of the applicant and the 2^nd respondent to be consistent in various respects and save expressly stated herein, I accept their evidence.

17.  The events that follow in my view, brings home the point that the 1^st respondent was the applicant’s employer.  The 2^nd respondent said in evidence that a few days after the Incident, the 1^st respondent telephoned him and said that he did not have an employees’ compensation insurance and asked whether he could “borrow” the 2^nd respondent’s employees’ compensation insurance (as the 2^nd respondent is running a computer business) for the purposes of covering the employees’ compensation for the applicant.  The 1^st respondent sought to explain himself out of this by suggesting that he was merely asking the 2^nd respondent whether he had bought employees’ compensation insurance to cover the applicant.  For the reasons above, I do not accept the 1^st respondent’s explanation.

18.  From the evidence analysed in paragraphs 6 to 17 above, I have no hesitation in finding that the applicant was the 1^st respondent’s employee (on the basis that there was an employment relationship between them which I shall discuss below).  There was every indication of this from the parties’ conduct at the material time in particular, that of the 1^st respondent.  The 1^st respondent’s suggestion that he and the applicant had continuously maintained an employment (since August 2009) but not on the day of the Incident is artificial.  In my judgment, the matters discussed in paragraphs 9 to 12 above show that the applicant’s assignment to work at the Premises on the day of the Incident was no more than a continuation of the on-going working relationship between the applicant and the 1^st respondent.  The reason why the 1^st respondent is now denying that relationship is that at the material time, he did not have a valid employees’ compensation insurance to cover the applicant and in order to evade responsibility to pay employees’ compensation, the 1^st respondent sought to paint a picture that he was not really the employer by directing the applicant to tender the sick leave certificate to the 2^nd respondent and telling the 2^nd respondent’s mother to pay the applicant HK$800 as wages.

19.  I now come to the question of whether the applicant and the 1^st respondent were in an employment relationship.  As I have mentioned in paragraph 5 above, the parties do not dispute that the applicant was an employee at the material time.  For completeness, I will address this topic but only briefly.

20.  The modern approach to the question of whether there is a contract of employment is set out by the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 where Ribeiro PJ said (at 167):-

“The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developed in the abovementioned case-law with a view to deciding whether, as a matter of overall impression, the relationship is one of employment, bearing in mind the purpose for which the question is asked. It involves a nuanced and not a mechanical approach, as Mummery J emphasised in Hall v Lorimer[1992] 1 WLR 939 at 944 (in a passage approved by the English Court of Appeal ([1994] 1 WLR 209 at 216 (CA)):

‘In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity.  This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation.  The object of the exercise is to paint a picture from the accumulation of detail.  The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole.  It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details.  Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.’”

(emphasis added)

21.  The indicia of employment applied in Poon Chau Nam (at 168) are:-

(1) the degree of control exercised by the employer;

(2) whether the worker’s interest in the relationship involved any prospect of profit or risk of loss;

(3) whether the worker was properly regarded as part of the employer’s organisation;

(4) whether the worker was carrying on business on his own account or carrying on the business of the employer;

(5) the provision of equipment;

(6) the incidence of tax and national insurance;

(7) the parties’ own view of their relationship; and

(8) the traditional structure of the trade or profession concerned and the arrangements within it.

22.  Mr Chung submitted that given that the Incident occurred on the first day of the applicant working at the Premises, a way to analyse the relationship between the applicant and the 1^st respondent is as follows.

23.  As I have found in paragraph 12 above, the applicant’s assignment to work at the Premises was no different from his previous assignments by the 1^st respondent prior to the day of the Incident, 19 June 2010.  Mr Chung submits that one can look at the previous course of dealings between the applicant and the 1^st respondent and implying the terms of their previous course of dealings into their relationship on 19 June 2010.  In support of this proposition, Mr Chung relies on paragraph 13-022 of Chitty on Contracts, 30^th edition which provides that:-

“It is, however, clear that a term may be implied in any given case from the circumstances of the parties having consistently on former and similar occasions adopted a particular course of dealing.”

24.  I accept that this would be an appropriate way to analyse the relationship between the applicant and the 1^st respondent.

25.  For the reasons set out below, I find that prior to the Incident on 19 June 2010, the applicant and the 1^st respondent had an employment relationship:-

(1) both the applicant and the 1^st respondent accepted in their evidence that prior to 19 June 2010, the applicant was the 1^st respondent’s employee;

(2) the 1^st respondent had control over the applicant.  As the applicant said in his evidence (see paragraph 6 above), if the applicant was available to work for the 1^st respondent, the 1^st respondent would give instructions to the applicant as to where and when the applicant was to work.  The 1^st respondent would also give instructions as to what work the applicant was required to carry out.  Further, if the applicant needed to take sick leave, he had to inform the 1^st respondent and subsequently submit sick leave certificate.  The applicant would not be paid his wages on the day that he took sick leave.  The applicant also had to work fixed hours between 9am and 6pm;

(3) the applicant said in his evidence that he did not share any profit or risk of loss with the 1^st respondent.  He was only entitled to a fixed wage of HK$800/day;

(4) the applicant also said in his evidence that usually, apart from him, the 1^st respondent would have other workers working on the project in question;

(5) the applicant was plainly carrying on the business of the 1^st respondent; and

(6) as mentioned in paragraph 7 above, the 1^st respondent was responsible for providing large equipment whilst the applicant would only have with him small tools to carry out the work.  The 1^st respondent was also responsible for the supply of materials.  Where materials were not available, the applicant would buy them and seek reimbursement from the 1^st respondent.

26.  Having considered all the features of the relationship between the applicant and the 1^st respondent and the indicia of employment referred to in paragraph 21 above, my overall impression is that prior to the date of the Incident, 19 June 2010, the applicant was working for the 1^st applicant under a contract of employment although on a casual and as required basis.  It is well established that the ECO covers casual employment (see Poon Chau Nam).  As I have found in paragraphs 12 and 18 above, the relationship between the applicant and the 1^st respondent on 19 June 2010 was no more than the continuation of their ongoing relationship prior to that date.  Applying Mr Chung’s proposition as set out in paragraphs 22 and 23 above which I accept, on the day of the Incident, the applicant was simply continuing his employment with the 1^st respondent on the same terms as prior to 19 June 2010.

27.  Further, even if I were to look at the Incident in isolation, for the reasons set out in paragraphs 11, 13, 14, 16 and 17 above, my overall impression and applying the indicia of employment referred to in paragraph 21 above remains that the applicant was an employee of the 1^st respondent on the day of the Incident.

Did the applicant suffer personal injury by accident?

28.  There appears to be no dispute and I find that the applicant had cut his right index finger accidentally whilst using a cutter to cut materials to fix a doorframe in the Premises.

Did the accident occur in the course of and arose out of the employment?

29.  There appears to be no dispute that the accident occurred in the course of employment.  The applicant said in his evidence (which was not disputed by the 1^st and 2^nd respondents) that the accident occurred around 4pm.  This was within the applicant’s normal working hours with the 1^st respondent (see paragraph 6 above).  Further, the accident occurred at the Premises where the applicant was instructed by the 1^st respondent to work.  I am therefore satisfied that the accident occurred in the course of employment.

30.  I am also satisfied on the evidence before me that the accident arose out of the applicant’s employment.  Further, pursuant to Section 5(4)(a) of the ECO, where an accident arises in the course of an employment, in the absence of evidence to the contrary, the accident shall be deemed to have arisen out of that employment.  There has been no evidence before me to suggest that the applicant’s accident did not arise out of his employment.

31.  For the reasons above, I find that the 1^st respondent is liable to pay employees’ compensation to the applicant as a result of the Incident. I now turn to quantum.

QUANTUM

Applicant’s background

32.  The applicant was 53 years old at the time of the accident and was 55 at the time of the trial.  The applicant’s evidence is that he started to work as a carpenter at the age of 17 (with the initial three years as an apprentice) and has been doing so for 30 odd years.  He also does paintwork and electrical works.  According to the applicant, apart from this, in all these years, he has not been doing any other jobs.

33.  According to the report of the applicant’s orthopedic expert, Dr Peter Ko dated 16 January 2012 (“Dr Ko’s report”) (which I will discuss in detail in paragraphs 42 to 56 below), the applicant attained Form 5 education level.  The applicant was of good health.  He had no previous history of right index finger injury or problem.  However, about 20 years ago, the applicant sustained minor wound to his left index finger with suturing and good recovery.  Further, around 10 years ago, the applicant sustained right big toe contusion when he was hit by a heavy object but nevertheless, he had good recovery.  The applicant’s job required him to handle different tools including manual and electrical tools and occasional lifting of weight up to 30 to 40 lbs of heavy wood materials.  The applicant was also required to occasionally climb on high platforms and scaffoldings to work at the exterior of buildings.

Applicant’s injuries & treatments

34.  Immediately after the accident, the applicant was admitted to Kwong Wah Hospital where wound exploration showed deep laceration over the flexor surface of the applicant’s right index finger at the level of proximal-interphalangeal joint, with contused radial digital nerve.  The wound was irrigated and closed with sutures. The applicant was discharged on the same day to specialist outpatient clinic for follow up on 28 June 2010.  The applicant was last seen on 28 June 2010 when he complained of persistent decreased sensation over the radial side of index finger with intact flexor tendon function.

35.  On 12 July 2010, the applicant attended Kwong Wah Hospital General Out-patient Department complaining of pain in right index finger.  Physical examination showed stiffness of right index finger with scar.  The applicant was referred to physiotherapy symptomatic treatment.

36.  The applicant had multiple follow-ups at Nam Shan General Outpatient Clinic.  On his visit on 5 October 2010, he still complained of right index finger pain and movement of right index finger was decreased.  There was still mild patchy sensation loss over the radial side of the right index finger.  The pain and movement gradually improved after physiotherapy but there was still limitation in flexion.  His physiotherapy continued.

37.  The applicant had his first physiotherapy appointment at Kwong Wah Hospital on 21 July 2010.  Physical examination revealed decreased range of motion and over right index finger (metacarpal-phalangeal joint flexion/extension: 85 degrees/0 degree (normal range: 90 degrees/0 degree); proximal interphalangeal joint flexion/extension: 65 degrees/0 degree (normal range: 90 degrees/0 degree); distal interphalangeal joint flexion/extension: 40 degrees/0 degree (normal range: 60 degrees/0 degree)).  Hand grip was also reduced (right hand: 15kg; and left hand: 20kg).  Physical treatments included ultrasound, magnetic therapy and ice were given to reduce pain and swelling whereas mobilising and strengthening exercises were given to improve range and power.  A reassessment was done on 25 August 2010 which showed progress in range of motion but power grip remained as above.  A final reassessment was done on 20 October 2010 which showed no further progress in range and power of right index finger.

38.  The applicant also attended a number of times at Cheung Sha Wan Jockey Club General Out-patient clinic for consultations in August to October 2010. Physical examination confirmed that the applicant had reduced range of motion in both flexion and extension over the right index finger joints.

39.  On 27 August 2010, the applicant consulted Shek Kip Mei General Out Patient Clinic. On examination, there was mild local tenderness over his right index finger and flexion was limited.  The applicant attended the clinic for follow-up assessment on two occasions in September and October 2010 and the condition seemed static.

40.  On 4 September 2010, the applicant consulted Yau Ma Tei Jockey Club General Out Patient Clinic.  Physical examination showed no external abnormality with no limitation of movement detected.  The applicant followed up at the clinic on 1 October 2010 and complained of increasing pain after resuming his duties.

41.  On 25 September 2010, the applicant consulted Hung Hom Clinic.  There was mild pain and limited movement of the right index finger.

Expert medical evidence

42.  By Order of District Judge Poon (as he then was) dated 17 February 2012, the applicant was given leave to adduce Dr Ko’s report as evidence at the trial without need of calling Dr Ko to give oral evidence.

43.  The 1^st and 2^nd respondents have chosen not to adduce expert evidence and have not challenged the contents of Dr Ko’s report.

44.  The applicant was examined by Dr Ko on 28 November 2011.  The applicant complained of intermittent pain in the volar surface of the PIP area of the right index finger.  It was aggravated by the following conditions:-

(1) on exertion, on pressure over the scar;

(2) on holding tools; and

(3) gentle bump or hit on hard objects.

45.  Further, at the radial pulp of the right index finger, there is numbness and parathesia.  There is weakness in holding a grip because of pain and weakness in the index finger as well as stiffness.  The applicant cannot hold a full grip.

46.  Physical examination revealed well healed transverse scar at the volar surface at the PIPJ skin crease of right index finger of length around 2 cm. The range of motion for the right index finger was (1) metacarpal-phalangeal joint: 0 - 95 degrees, (2) proximal interphalangeal joint: 10 - 65 degrees, and (3) distal interphalangeal joint: 5 - 10 degrees.  Radial pulp significant decrease in sensation and cannot distinguish 2-point discrimination up to 12mm.  The applicant’s shoulder and elbow had full range and wrist was normal. His right hand grip is roughly 20% of his left hand according to a Jamar testing.  There was tenderness at around the volar scar at the right index finger PIPJ.

47.  Dr Ko diagnosed the applicant with the following:-

(1) right index finger deep laceration (cut wound);

(2) contused radial digital nerve;

(3) residual digital nerve dysfunction; and

(4) flexor tendon adhesion with residual flexor tendon dysfunction and joint stiffness.

48.  I accept Dr Ko’s diagnosis which is consistent with the assessments at the various clinics which the applicant had attended as referred to in paragraphs 34 to 41 above.

49.  Dr Ko takes the view that the above diagnosis is the sole and direct result from the applicant’s accident on 19 June 2010.

50.  The applicant told Dr Ko that he was advised by Kwong Wah Hospital to consider lysis of adhesions of the tendon to improve his right index finger stiffness.  The applicant told Dr Ko that he had not made up his mind to do the treatment given the uncertainties in its outcome.

51.  Dr Ko considered that the applicant’s recovery for his right index finger injury is far from satisfactory.  According to Dr Ko, examination shows that there is obvious features of tendon adhesion of the flexor tendon and the DIP had no effective movement or motion.  In respect of the latter, whilst I accept that the DIP has restricted motion, I do not find that the DIP has no effective movement in the light of the assessments to the applicant at Kwong Wah Hospital referred to in paragraph 37 above which showed that the DIP had a comparatively wider range of movement.  Apart from there being evidence before me that the applicant’s condition has remained static after the assessments in Kwong Wah Hospital referred to in paragraph 37 above, there is no suggestion that the applicant’s condition had deteriorated.

52.  Dr Ko takes the view that the radial digital nerve has not recovered from the contusion, 2 point discrimination is essentially absent, superficial touch and pin prick sensation is also lost and hand grip is significantly impaired.  I accept Dr Ko’s opinion as it is consistent with the assessments at the various clinics referred to in paragraphs 34 to 41 above.

53.  Dr Ko is of the opinion that the prognosis for the applicant’s right index finger is guarded irrespective of his decision for surgical intervention.  Dr Ko takes the view that the applicant’s condition is considered static and has reached maximal medical improvement.  If the applicant considers to have further surgery for lysis of the adhesion of the tendon, he will require another 4 to 6 months of intensive rehabilitation with physiotherapy and occupational therapy.

54.  Dr Ko takes the view that the treatment, investigation and rehabilitation received by the applicant was appropriate and reasonable.

55.  Dr Ko is of the opinion that the applicant’s activities of daily living should not be affected.  Dr Ko opines that based on the present sub-optimal treatment outcome of the applicant’s right index finger injury, the applicant is not fit to resume his original work as a carpenter that requires heavy manual work as well as fine motor skills and tasks.  Dr Ko recommends the applicant to take up jobs requiring less physical demand and fine motor skills and dexterity of the right hand.  This would include toll collector at shroff, worker at gas petrol station, security guard, telephone operator and cashier. I accept Dr Ko’s opinion that the applicant is not fit to return to his previous job as a carpenter, painter and electrician which require heavy manual work and fine motor skills and tasks.  This is particularly so, given that the applicant is also suffering from loss of sensation to his right index finger which could be particularly dangerous in doing carpentry and electrical works. I accept the applicant’s evidence (who is right handed) that he is now not able to hold heavy electrical appliances and that he is also not able to handle small tools such as a chamfer as his right index finger does not have the requisite strength and flexibility to do fine work.

56.  Dr Ko is of the opinion that the applicant has suffered a 40% digit impairment for the residual stiffness of the right index finger, 10% digit impairment for residual sensory loss and 5% WPI for total impairment.

Applicant’s monthly earnings

57.  There is no dispute between the applicant and the 1^st respondent and I so find that the applicant’s daily wage at the time of the accident was HK$800.

58.  The question is what was the applicant’s monthly earnings at the date of the accident, 19 June 2010.

59.  In his witness statement filed on 3 January 2012, the applicant claimed that on average, he worked 26 days a month and thus had a monthly earning of HK$20,800.  Apart from a mere assertion, the applicant has not adduced any evidence to support this.  I do not accept the applicant’s assertion as it appears to me to contradict the documentary evidence referred to in paragraphs 63 and 64 below.  For the following reasons, I find that the applicant was working on average, 21 days a month and thus had monthly earnings of HK$16,800 (HK$800 x 21 days).

60.  Given the casual nature of the applicant’s employment and that he had been employed by the 1^st respondent less than one month prior to the accident (see paragraph 63 below), Section 11(1) of the ECO is not applicable to calculate the applicant’s monthly earnings (see Court of Appeal’s decision in Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337).

61.  In my judgment, Section 11(2) of the ECO calls for consideration here. According to that Section:-

“Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

62.  The 1^st limb to Section 11(2) is not applicable here as the applicant has not adduced evidence of what a person of similar earning capacity employed in the same work and by the same employer would have earned.  In my judgment, the 2^nd limb of Section 11(2) is applicable and in this regard, I place reliance on the applicant’s previous earnings with the 1^st respondent as the applicant was doing the same kind of work for the 1^st respondent as on the date of the accident (see Court of Appeal’s decision in Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643).

63.  According to the applicant’s form of claim filed on 13 October 2010 in respect of his claim against the 1^st respondent for outstanding wages in the Labour Tribunal referred to in paragraph 6 above, the applicant claimed outstanding wages of HK$23,200 for the following wage periods:-

(1) 29 April 2010 to 30 April 2010 (HK$800 x 1 day = HK$800);

(2) 1 May 2010 to 31 May 2010 (HK$800 x 21 days = HK$16,800); and

(3) 1 June 2010 to 8 June 2010 (HK$800 x 7 days = HK$5,600).

64.  In my judgment, the applicant’s claim for wages in May 2010 is evidence of the applicant’s monthly earnings.  In this regard, the applicant has not adduced any evidence to suggest that in May 2010 he was not only employed by the 1^st respondent.  On balance, I find that for the purposes of calculating the compensation payable to the applicant under the ECO that the applicant’s monthly earnings at the time of the accident were HK$16,800 (HK$800 x 21 days).

Claim for permanent partial incapacity

65.  By a certificate of review of assessment dated 26 October 2011, the Employees’ Compensation (Ordinary Assessment) Board came to the view that the applicant’s loss of earning capacity was 1.5% for right index finger injury resulting in stiffness, numbness and weakness.  By the applicant’s Notice of Appeal filed on 4 November 2011 and pursuant to Section 18 of the ECO, the applicant appeals against that assessment.

66.  The Court approaches such an appeal by starting afresh (see Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115 cited with approval in the Court of Appeal’s decision in Tsang Kwong Tong v Tennile Decoration & Design Limited & others CACV42/2006 (unreported, 10 October 2006)).

67.  Mr Chung submits that the applicant’s injuries are not specified in the First Schedule of the ECO.  I agree.  The next question is whether this Court should assess the applicant’s compensation payable for permanent partial incapacity pursuant to Section 9(1)(b) or 9(1A).

68.  Pursuant to Section 9(1)(b):-

“Subject to subsection (1A), where permanent partial incapacity results from the injury the amount of compensation shall be…

(b) in the case of an injury not specified in the First Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time:

Provided that…

(ii) in the case of injury not specified in the First Schedule, the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentages specified in that Schedule and to the Note thereto.”

69.  Pursuant to Section 9(1A):-

“Where-

(a) permanent partial incapacity results from an injury or a combination of injuries (whether or not specified in the First Schedule); and

(b) the percentage of the loss of earning capacity specified or assessed in relation to that injury or combination of injuries in accordance with subsection (1) would be substantially less than the percentage of the loss of earning capacity permanently caused by the injury or injuries in the special circumstances of the employee, including, without limiting the generality of the foregoing-

(i) the nature of the injury or injuries in relation to the nature of his former usual employment; and

(ii) his qualifications, previous training and experience,

the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning incapacity permanently caused by the injury or injuries in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time.”

70.  Mr Chung submits that there are special circumstances of the applicant which justify assessment under Section 9(1A) of the ECO.  Mr Chung relies on the matters referred to in paragraphs 44 to 47 and Dr Ko’s opinion referred to in paragraph 55 above.  Mr Chung also relies on paragraph 10.8 of Dr Ko’s report where Dr Ko was told by the applicant that apart from heavy manual work, the applicant was required to handle fine and small tools.  High dexterity of the right hand was required to a certain level and that he was occasionally required to climb and work on platforms and scaffoldings.

71.  It is the applicant’s evidence that he was advised by his doctor that given the seriousness of the injury to his right index finger, he should take a long sick leave.  Notwithstanding this, as he has a financial burden, in August 2010, he sought to resume work doing paintwork.  However, he was not able to do so, as he felt serious pain in his right index finger.  At the end of November 2010, the applicant went through training with the Employees Retraining Board and completed a course there on 15 December 2010.  Further, he attended a training course and later obtained the requisite permit to be a security guard.  The applicant said that he started to work as a security guard on 11 January 2011 on night shift (12 hours per shift).  The applicant said that he was earning a monthly wage of HK$8,736.  Since then he stopped taking sick leave.  The applicant felt that he was able to take up the job as the work nature did not require him to actively use his right index finger.  However, according to the applicant, as he had to work on night shift with no stable place of work and during the day, he had to attend physiotherapy and occupational therapy, he felt very tired and thus in June 2011, he stopped working as a security guard. Further, at the time, he was introduced by a friend to work in the market selling vegetables earning a daily wage of HK$300.  According to the applicant, initially, he was able to work 20 odd days a month.  However, gradually this became less and in November 2011, he stopped working in the market.  At the time of the trial, the applicant was unemployed.  Mr Chung submits that for the purposes of the applicant’s claim in these proceedings, he accepts that he is able to work as a security guard.

72.  The applicant said in his oral evidence that the position of his right index finger has not changed since he saw Dr Ko in November 2011.

73.  I accept that there are special circumstances to the applicant justifying an assessment under Section 9(1A) of the ECO having regard to the impact that the applicant’s injuries to his right index finger would have onto his former employment as a carpenter, painter or electrician (see paragraph 55 above) and the fact that the applicant’s condition is considered static and has reached maximal medical improvement.  This is particularly significant given the applicant’s age and that since the age of 17 and for 30 odd years, he has only been working as a carpenter, painter and/or electrician.  In this regard, although I do not accept Dr Ko’s opinion that the DIP to the applicant’s right index finger has no effective movement of motion, I accept that it has restricted movement and will have an impact on the applicant carrying out his former employment (see paragraph 51 above).

74.  The formula for assessing the compensation under Section 9(1A) was laid down in Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HKLR 556 as subsequently modified by Lui Kwong Yan v Shui Hing Decoration Works & Another [1993] 1 HKLR 168 as ((b - a)/b) x c where “a” is the earning capacity at the time of the accident in any employment of which the applicant is now capable, “b” is the applicant’s earning capacity at the time of the accident and “c” is the compensation payable upon permanent total incapacity.

75.  As mentioned in paragraph 71 above, after the accident, the applicant had been working as a security guard for a period of time.  For the reasons set out in paragraph 55 above, I accept that this would be an appropriate job for the applicant to undertake in view of his circumstances.  As mentioned in paragraph 71 above, at the time the applicant was working as a security guard, he was earning HK$8,736.  This is supported by the employment agreement which the applicant had entered into with Security and Safety Limited dated 10 January 2011.  In this regard, the applicant has adduced as evidence, the Census and Statistics Department’s Quarterly Report of Wage and Payroll June 2010 (i.e. at the time of the accident) which shows that a building attendant/guard working on a 12 hour shift would be paid HK$8,073.  Notwithstanding this, Mr Chung submits that for the purpose of determining the compensation payable, the figure of HK$8,736 should be adopted.  I accept this.  Further, in the light of the Government statistics, the applicant’s monthly salary of HK$8,736 is reasonable.

76.  Applying the Hong Kong Paper Mills formula, the applicant’s loss of earning capacity is ((HK$16,800 – HK$8,736)/HK$16,800) x 100% = 48%.

77.  Since the Employees’ Compensation (Ordinary Assessment) Board assessed the applicant’s loss of earning capacity to be 1.5%, I allow the applicant’s appeal against such an assessment.

78.  The award of compensation under Section 9 of the ECO is therefore HK$16,800 x 72 x 48% = HK$580,608.

Claim for compensation for temporary incapacity

79.  As a result of the accident, the applicant had on and off been taking sick leave from 19 June 2010 to 11 January 2011 of a total of 160 days.  This has been endorsed by the Employees’ Compensation (Ordinary Assessment) Board. Further, Dr Ko is of the opinion that the sick leave period received by the applicant was appropriate and reasonable.  I accept Dr Ko’s opinion.

80.  Mr Chung submits that for the purposes of calculating the compensation for Section 10, one can apply the applicant’s daily wage of HK$800 as the base income of assessment.  I disagree.  The base income for assessment under Section 10 of the ECO is based on the monthly income under Section 11 (see Chan Shu Ping v Hang On Construction Engineering Limited & Another DCEC1519/2009 (unreported, 9 November 2010)).

81.  Accordingly, the compensation under Section 10 is (HK$16,800/30) x 160 days x 4/5 = HK$71,680.

Claim for medical expenses

82.  The applicant incurred total medical expenses of HK$1,802 as follows:-

Hospital/Clinic	Period	No. of visits	Amount (HK$)
Kwong Wah Hospital	19.06.10	1	100
Kwong Wah Hospital (A&E)	19.06.10 – 03.12.10	2	110
Nam Shan General Outpatient Clinic	21.06.10 – 08.01.11	18	782
Shek Kip Mei General Outpatient Clinic	27.08.10 – 09.10.10	3	135
Yau Ma Tei Jockey Club GOPC	04.09.10 – 24.12.10	9	405
Cheung Sha Wan Jockey Club GOPC	23.08.10 – 13.10.10	3	135
Hung Hom Clinic	25.09.10	1	45
Central Kowloon Health Centre	29.12.10 – 03.01.10	2	90

Summary

83.  For the above reasons, I find that the 1^st respondent is liable to pay employees’ compensation of HK$654,090 to the applicant as follows:-

(1) Section 9: HK$580,608

(2) Section 10: HK$71,680

(3) Section 10A:   HK$1,802

          Total:                                               HK$654,090

84.  I therefore order as follows:-

(1) the applicant’s claim against the 2^nd respondent is dismissed;

(2) the 1^st respondent do pay the applicant HK$654,090  with interest at half judgment rate from the date of injury to the date of judgment and thereafter at judgment rate until full payment;

(3) the 1^st respondent do pay the costs of the applicant and the 2^nd respondent.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations; and

(4) the applicant be granted Certificate for Counsel.

The above order for costs shall be on a nisi basis.