AHMED ALTAF v. YUEN WUI ENGINEERING LTD AND ANOTHER

DCEC 1141/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1141 OF 2006

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BETWEEN

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JUDGMENT

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Background

1.  This is a claim for employees’ compensation brought by Mr. Ahmed Altaf (“Altaf”) in respect of an accident on 20 December 2005 under the provisions of the Employees Compensation Ordinance, Cap. 282 (“the ECO”).

2.  Altaf claims to be employed by Yuen Wui Engineering Limited (“Yuen Wui”) to work on a construction site at Wuhu Street, Hunghom, Kowloon. Altaf claims that YUEN WUI was the sub-contractor of Innovative Network Engineering Company Limited (“INEC Ltd”).

 3.  On an unknown date, Yuen Wui and INEC Ltd, which were then represented by the same firm of solicitors, filed an Amended Answer alleging that Altaf was employed by INEC Ltd through the introduction of Yuen Wui and that Altaf was barred from making this Application by reason of a Recovery Declaration dated 12 January 2006 and Altaf’s receipt of HK$10,000 pursuant thereto. Both Yuen Wui and INEC Ltd deny liability. Yuen Wui is now in liquidation.

4.  Yuen Wui and INEC Ltd now act in person. Notice of this hearing was duly given to them by post by Registrar of the District Court on 31 December 2009. I was satisfied that Yuen Wui and INEC Ltd had sufficient notice of the hearing and hence decided to proceed with the trial in their absence.

5.  At the outset, Ms. Pinto, Counsel for Altaf, applied to be admitted into evidence a document, namely, Quarterly Report of Wage and Payroll Statistics, December 2005 Table 8, published by the Census and Statistics Department (“the Statistics”). In the absence of any objection, I granted leave to Altaf to adduce the Statistics as evidence in support of this Application.

6.  The only viva voce evidence came from Altaf in support of his Application. He adopted the contents of his witness statement as his evidence in chief.

Liability

Who was Altaf’s Employer, Yuen Wui or INEC Ltd?

7.  Altaf’s evidence on this issue was as follow. Through the introduction of one Afrasiyab, a Pakistani, Altaf started working for Yuen Wui in or about September 2005 as a general labourer at a daily rate of HK$420.

8.  He was paid twice before the accident by cash cheques. He forgot the amount of each of the cash cheques and when exactly they were handed to him through Afrasiyab. He just remembered that they were issued by Yuen Wui.

9.  Altaf also asserted that INEC Ltd was the principal contractor on the site. The basis of this assertion is however unknown.

10.  In a Form 2 filed by Yuen Wui dated 4 August 2006, Yuen Wui admitted being the employer of Altaf and that INEC Ltd was the principal contractor.

11.  In the absence of contrary evidence, I accept that Yuen Wui was the employer of Altaf whilst INEC Ltd was the principal contractor and Yuen Wui was its sub-contractor.

How did the Accident Occur?

12.  In the Application, it is pleaded that the accident occurred on 20 December 2005 when Altaf was drilling with a jackhammer on the concrete ground at a construction site at Wo Hu Street, Hunghom, Kowloon, Hong Kong. The jackhammer slipped and Altaf fell onto the ground. Back injury was sustained as a result.

13.  In the Amended Answer, Yuen Wui and INEC Ltd did not admit this account and required Altaf to prove the accident strictly.

14.  In his witness statement, Altaf gave more details of the accident. The time was from 3:00 p.m. to 3:30 p.m. and he actually fell onto the debris on the ground. His right back was particularly hurt.

15.  I note that his account of the accident was consistent with those he gave to Professor Kumta, Altaf’s orthopaedic specialist, and Dr. Arthur Chiang, the orthopaedic specialist commissioned by Yuen Wui and INEC Ltd, for their preparation of the Joint Medical Report.

16.  In the circumstances, there is nothing which casts doubt on his account and I accept that he was injured in the way he described in the course of his employment with Yuen Wui.

Present Application barred by Recovery Declaration?

17.   For the Recovery Declaration dated 7 January 2006, it was written in both Chinese and English. The English part is reproduced as follows:

“This is to certify that Mr. Ahmed Altaf, holder of HKID No. K732644(0), declared that he was fully recovered from his Injury. And our company had made an allowance which agreed by both parties on this incident. Mr. Ahmed Altaf agreed that he would not make any further claims in the future.”

18.  Altaf signed the Recovery Declaration. So did Afrasiyab and another person called Zaman Shoukat as witnesses and an unnamed representative of Yuen Wui.

19.    It is common ground that Altaf received a post-dated of HK$10,000 issued by Yuen Wui after signing the Recovery Declaration. Altaf gave a detailed account of the circumstances under which it was signed. In gist, his maintained that he signed the Recovery Declaration under undue pressure exerted on him by the two witnesses without any knowledge of its contents due to his illiteracy. Thus it was indeed a case of undue influence and/or non est factum.

20.  Despite the lack of contrary evidence, I have serious doubt about the truthfulness of Altaf’s account. I am unable to accept his assertion that he did not know the contents of the Recovery Declaration at all and he signed only under the undue influence of the witnesses and not because of his desire to obtain the sum of HK$10,000 as immediate monetary compensation.

21.  I also note that in the Reply filed on 25 July 2007, Altaf’s pleaded case in relation to the Recovery Declaration is that it was signed by mistake as to its contents. This was clearly not borne out by, and indeed inconsistent with, Altaf’s evidence.

21.  It does not follow, however, that the agreement in the Recovery Declaration is enforceable and hence it can debar Altaf from making this Application.  Ms. Pinto helpfully referred me to section 31(1) of the ECO which reads:

“Any contract or agreement whether made before or after the commencement of this Ordinance, whereby an employee relinquishes any right to compensation from an employer for personal injury by accident arising out of and in the course of his employment, shall, subject to subsection (2), be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under the provisions of the Ordinance.”

22.  The Recovery Declaration falls squarely within this provision. It must therefore be null and void in so far as it purports to prevent Altaf from making any claims under the ECO.

Quantum

Pre-injury Earnings?

23.    In the Form 2 filed by Yuen Wui, it was stated that the monthly basic salary/wages of Altaf for the month immediately preceding the date of the accident was HK$9,000.

24.  Altaf did not tell how many days he worked per month for the monthly immediately preceding 20 December 2005 in his witness statement. He asserted for the first time that he worked 26 days per month in answer to one of the top-up questions posed to him. I asked Altaf on what basis he said he worked 26 days per month and he answered that he worked every day and only took a day off per week.

25.  The assertion is not supported by any documentary proof. There is not a single document produced by Altaf to show his pre-injury earnings. He said he started to work for Yuen Wui in September 2005 and he was only paid twice by cash cheques issued by Yuen Wui before the accident. He had no recollection of how much he was paid each time.

26.  Worse still, his assertion is contradicted by a “Time Record Card” for the month of December. There it showed that his daily rate was HK$440 and he worked 8 days out of 20 days up to 20 December 2005 in December. I asked Altaf why he worked so infrequently in December 2005. His answer was that he did not work when it was a public holiday or when the weather was really bad. He did not seek explain specifically why he was absent from work from 10 December to 18 December 2005 (inclusive).

27.  It must follow that his assertion of 26 days’ work per month is not reliable and I cannot act on this assertion. I reject it with little hesitation.

28.    In closing submissions, Ms. Pinto drew to my attention the fact that on the Time Record Card in regard to the entry for the date of the accident, it was recorded that Altaf worked from 8 a.m. to 7:00 p.m.. She submitted that this could not be right as Altaf in his witness statement said that he had the accident at about 3:30 p.m. and left the site at about 5:15 p.m. on that day. It was then submitted that insofar as the record of his work is concerned, the Time Record Card is not an accurate record in any event.

29.  I am not persuaded by this submission in the absence of evidence of Altaf to the effect that the Time Record Card was not accurate. Altaf was not asked and did not comment on whether it was wrongly recorded that he left the site at 7:00 p.m. on 20 December 2005 in the Time Record Card. He might agree that it was an accurate record whereas it was a mistake in his witness statement to state that he left at 5:15 p.m.. More importantly, he did not suggest that there were actually other working days in December 2005 but just that they were not properly recorded in the Time Record Card.

30.  Given the very unsatisfactory state of evidence relating to how many days he worked per month, for which Altaf has only himself to blame, I could only do the best I can in the interest of Altaf in this situation. I am prepared to assume that he took one more day off per week either for a public holiday or bad weather. Hence, I accept Altaf worked 5 days a week and so he worked 22 days a month. His monthly earnings at the time of the accident therefore was HK$9,680 (HK$440 x 22).

Loss of Earning Capacity and Special Circumstances within the meaning of section 9(1A)?

31.  Altaf was assessed by the Employees' Compensation (Ordinary Assessment) Board ("the Board") on 12 November 2008. The Board issued a Certificate of Assessment (“the Certificate”) on 26 November 2008. According to the Certificate, Altaf suffered back injury resulting in pain and stiffness and the period of sick leave was certified to be from 23 December 2005 to 17 September 2007.

32.  Altaf’s loss of earning capacity permanently caused by the injury was certified to be 5%.

33.  Altaf applied to the Board for a review and the review was carried out on 18 December 2009. A Certificate of Review of Assessment (“Review Certificate”) was issued on 4 March 2009. By the Review Certificate, Altaf’s back injury resulted in pain and prolapsed intervertebral disc L3/L4.

34.  The period of sick leave was confirmed by the Review Certificate to be from 23 December 2005 to 17 September 2007. Altaf’s loss of earning capacity permanently also caused by the injury was confirmed to be 5%.

35.   I from the court file located a Notice of Appeal dated 12 March 2009 whereby Altaf appeals against such assessment in the Certificate and the Review Certificate within time.

36.  Ms. Pinto submitted that it is a case of “special circumstances” under section 9(1A) of the ECO and that the percentage applicable under section 9(1A) of the ECO should be 30% despite the assessment of 5% by the Board applying the formula in Hong Kong Paper Mills Ltd. v. Chan Hin Wu [1981] HKLR 556 as modified by Lau Man Keung v. Yiu Wing Construction Co. Ltd. [1993] 1 HKLR 168. Ms. Pinto advanced the following reasons:

(1)  Dr. Arthur Chiang “makes reference to the general physical capacity as related to a disc prolapse with reasonable recovery, the pre-injury job and the future job capacity, and suggests a 10% loss in earning capacity for the injury related part of the back residues.”

(2)  Dr. Arthur Chiang points out “In considering the work activities of the pre-injury job as described by Mr. Altaf, he might not be able to return to the pre-injury job.” and Professor Kumta agrees to this recommendation.

(3)  The lighter jobs which Altaf is restricted by his injury to undertake as suggested by Dr. Arthur Chiang (e.g. security guard and delivery worker for lighter goods) pay less. According to the Statistics, these jobs yielded a monthly income of around HK$8,000 in 2005.

(4)  Assuming Altaf earned HK$11,400 at the time of the accident (which for the foregoing reasons I do not accept), his percentage loss is 30%.

(5)  Altaf’s native language is Punjabi and his linguistic skills of Cantonese and English are limited. He would face difficulties in the job market with his linguistic limitation.

37.  First, I accept the medical evidence in the Joint Medical Report prepared by Professor Kumta and Dr. Arthur Chiang. In particular, I accept the suggestion of a 10% loss in earning capacity in favour of the assessment of the Board.

38.  However, I do not accept that there was any special circumstances which justifies the application of Paper Mills formula here. Altaf did not profess to have any special skills. He had worked for quite a while as a general labourer before the accident. He alleges to have been educated up to matriculation level in Pakistan and he has been in Hong Kong since 1988.

39.  I cannot readily accept that he knows little English and Chinese. On the evidence, the only impact of his back injuries is limited to his inability to return to his heavy duty construction work but still he can take up lighter jobs. I do not find this sufficient to allow the Paper Mills formula here: Lau Man Keung v. Yiu Wing Construction Co Ltd, unreported, CACV 2232/2001, 10.6.2002 per Hon. Leong, CJHC at §25.

40.  Altaf was 31 years old at the time of the accident. Ms. Pinto suggested a multiplier of 96 months and I accept her suggestion.

41.  Therefore, his entitlement under section 9 of the ECO is HK$9,680 x 96 x 10% = HK$92,928.

Section 10

42.  The sick leave period certified by the Board was 866 days, more than 24 months. Ms. Pinto submitted that I should exercise my discretion under section 10(5) of the ECO to extend the period for which Altaf should be entitled to periodical payments.

43.  I am guided by the decision of Court of Appeal in Choy Wai Chung v. Chun Wo Construction & Engineering Co Ltd [2000] 4 HKC 653 as to how my discretion under section 10(5) should be exercised. Given the fact that the Board certified the entire sick leave period before the issue of the Certificate and the Review Certificate, I should allow Altaf to recover payments for the entire period of his certified sick leave.

44.  Thus, under section 10 of the ECO, Altaf is entitled to: HK$9,240 x 4/5 x 866/30 = HK$213,382.40.

Section 10A

45.  Altaf in his witness statement dated 12 March 2007 claims that he has incurred HK$1,440 for medical treatments since the accident. Now he claims HK$4,530 as medical expenses under section 10A of the ECO. These expenses were purportedly supported by documentary evidence but I can only find a table apparently compiled by Ahmen’s solicitors. There is no underlying documents such as receipts produced. After doing the arithmetic, I find a sum of HK$3680 incurred before 13 March 2007 and another sum of HK$730 incurred after 13 March 2007 making a total of HK$4,410. I am only prepared to allow the claim to such an extent.

Summary

46.  The total amount of damages awarded is thus as follows:

Section 9	HK$92,928
Section 10	HK$213,382.40
Section 10A	HK$4,410
Total	HK$310,720.40

47.  Of course, credit should be given for any pre-payment by either Yuen Wui or INEC Ltd such as the sum of HK$10,000 received by Altaf from Yuen Wui.

48.  I would further allow interest at half judgment rate from the date of the accident, i.e. 20 December 2005 to the date of assessment, i.e. 14 April 2010. Thereafter, interest at judgment rate until payment.

49.  There will be an order nisi that the costs of this action with certificate for counsel be borne by Yuen Wui and INEC Ltd, to be taxed if not agreed. Altaf’s own costs are to be taxed in accordance with the Legal Aid Regulations.