MUSHTAQ BILAL v. SUNRISE CO. AND OTHERS

DCEC 1478/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1478 OF 2012

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JUDGMENT

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A. BACKGROUND

1. Mr Mushtaq, a Pakistani young man who came to Hong Kong from Pakistan in 2009, injured his right big toe on 9 April 2011(“Accident Date”) on his first day of working at a construction site near Tuen Mun (“Subject Site”). He claimed that the said injury has arisen out of an accident in the course of his employment with the 1^st respondent, Sunrise Co (“Sunrise”) and the 2^nd respondent, Mr Amir, also a Pakistani.

2. Sunrise and Mr Amir however had allegedly refused to compensate him for the injury he suffered, and further asked him to look to their principal contractor, the 3^rd respondent, Kaiser Global (Hong Kong) Company Ltd (“Kaiser”) for compensation.

3. Mr Mushtaq commenced these proceedings to seek employees’ compensation in August 2012 when he was granted legal aid.

4. At trial, Sunrise and Mr Amir were not represented (though they were up to the stage of setting down when witness statements had already been exchanged) and were absent.  Having been satisfied that they had notice of the hearing, I proceeded to trial in their absence.

5. Counsel for Mr Mushtaq and for Kaiser have now agreed that if Mr Mushtaq had injured his toe when he was employed by Sunrise and Mr Amir, as claimed, and further that Sunrise and Mr Amir were Kaiser’s sub-contractor on the Accident Date, the compensation to which Mr Mushtaq is entitled under ss 10 (compensation for temporary incapacity) and 10A (medical expenses) of the Employees’ Compensation Ordinance (“Ordinance”). (Save were otherwise stated, references to sections in this judgment will be to sections in the Ordinance) is respectively $126,480 and $862.  As for the claim for the s 9 compensation for permanent partial incapacity, the point of contention is the percentage of the loss of earning capacity.

6. The issues for my determination at trial:-

(1) Was Mr Mushtaq injured while he was employed by Sunrise and Mr Amir?

(2) If so, whether Sunrise/Mr Amir was Kaiser’s sub-contractor at the material time?

(3) If so, what is the appropriate percentage for the loss of earning capacity for the s 9 compensation?

B.  WAS MR MUSHTAQ INJURED WHILE HE WAS EMPLOYED BY SUNRISE AND MR AMIR?

7. The following is not in controversy:-

(1) On the Accident Date, Mr Mushtaq was 19, and had been a full-time general worker for the Clearwater Bay Equestrian Centre (“Equestrian Centre”) until 30 April 2011.

(2) After the accident, he was treated in Tuen Mun Hospital for his fractured right big toe.

(3) At the material time, Sunrise was a firm and Mr Amir was its sole-proprietor.  Hence, Sunrise and Mr Amir are one single legal entity. Sunrise ceased business on 27 May 2011.

(4) Mr Mushtaq gave a Notification of Accident to the Labour Department on 27 June 2011, naming Sunrise as his employer.  In the notice, the name of the principal contractor was stated to be “Not Known”.

B.1   Mr Mushtaq’s case

8. According to the evidence of Mr Mushtaq and his younger brother (“Brother”), who said  they had worked together at the Subject Site, Mr Mushtaq was introduced to work for Mr Amir by the Brother after the latter learnt that Mr Mushtaq was due to take his first annul leave from the Equestrian Centre on the Accident Date.  Prior to the Accident Date, the Brother had in fact been working for Mr Amir for a few months as a casual general labourer, and was already working for him at the Subject Site for a few days. Mr Amir had previously told him that there was a labour shortage at the Subject Site and asked the Brother to bring his relatives and friends to work with a promise of a daily wage of $500.

9. On the Accident Date, Mr Mushtaq and the Brother were driven by Mr Amir’s friend to the Subject Site from Kam Sheng MTR Station and they arrived there at around 8:30 am and met up with Mr Amir.

10. They were unable to give any details of the Subject Site apart from knowing that it was in Tuen Mun and that the area, according to Mr Mushtaq, was beside a road with a slope over a hill with trees.

11. Before starting work, Mr Amir promised him a daily wage of $500, but did not ask Mr Mushtaq for any identification documents or provide him with any work clothes.  Mr Amir assigned the Mushtaq brothers to work with three Chinese workers in a group and required these two brothers to operate an electric concrete mixer[1]. The Brother had operated a mixer before but Mr Mushtaq, being his first day working at the Subject Site, had had no experience with construction site work. Before they started working with the mixer, Mr Amir had explained to them the procedure of putting sand and water into the metal bowl of the mixer and the switching on of the generator to mix the cement.

12. The mixing of the cement lasted for the whole morning.  When they resumed again, the machine was found to have been stuck.  They therefore called Mr Amir who, after having arrived at the site, told the brothers to clean the cement inside the metal bowl by lifting the metal bowl off from the mixer and placing it on the ground for cleaning. 

13. Thus, Mr Mushtaq and the Brother stood facing each other at opposite sides of the bowl, with the former’s hands being placed underneath the bowl and the latter holding it on the other side.  When the bowl had only been lifted a little, Mr Mushtaq recalled that he lost his grip on the bowl and that it became detached from the pole of the mixer and fell.  He then felt that the base of the bowl landed straight on his toe in a slanting position. 

14. The bowl, according to their evidence, was about 3 feet wide and 4 feet high, and weighed about 195 kilograms at the time when they were trying to lift it because it was filled with water and cement.

15. The Brother said that after the accident, he had continued working for Mr Amir for another 4 days on the Subject Site before changing to a Kwun Tong site to which site the concrete mixer was moved from the Subject Site.  The photo of the mixer in the trial bundle, according to the Brother, was taken by him.

16. After the accident, the Brother still worked for Mr Amir until 2012.  Since then, the Brother had also lost contact with Mr Amir after he deleted his phone number.  He had however given the name card[2] of Mr Amir of Sunrise to Mr Mushtaq after the accident.

17. Mr Mushtaq said it was only when Mr Amir of Sunrise refused to pay him for his sick leave payment that he was told that  Kaiser, Sunrise’s “higher company” or “main company” (meaning the main contractor), had refused to pay Mr Amir for Mr Mushtaq’s compensation.  Mr Amir then gave Mr Mushtaq Kaiser’s name card[3] around June 2011 and asked him to look to Kaiser for payment.

B.2   Kaiser’s contention

18. There is no dispute that at the material time, Sunrise was Kaiser’s sub-contractor (see §§41 & 46 below) which had been contracted to undertake a waterworks project of Kaiser’s principal contractor, Ming Hing Waterworks Engineering Co Ltd (“Ming Hing”). Kaiser however denies its liability because Kaiser says that there is no record either from Ming Hing or Sunrise that Mr Mushtaq was ever employed as Sunrise’s employee at the material time. 

19. Kaiser’s witnesses, Mr Ha (the sales manager) and Mr Wang (the safety supervisor) – both of whom gave evidence in Cantonese at trial – presented evidence to discredit Mr Mushtaq’s case by contending that Mr Mushtaq’s allegation that he was the employee of Sunrise/Mr Amir is inherently improbable, in particular in respect of Mr Mushtaq’s account of (a) Sunrise not requiring him to provide the requisite identity documents; and (b) the toe injury having been caused by the dropping of the metal bowl of an electric mixer.

B.2.1 Unlikely that Sunrise had not required Mr Mushtaq to provide the requisite identity documents

20. At trial, Mr Wang provided a detailed account of a procedure that Kaiser had arranged with Ming Hing concerning the latter’s sub-contracting work. According to Mr Wang, in order to prevent an employer from engaging illegal workers to work in construction sites, Kaiser would require all new employees of its sub-contractors including Sunrise, to produce for his inspection three types of documents that are commonly known in Chinese as “三寶”, which can be literally translated as the “Three Treasures” (“Three Cards”) in the construction industry before a new employee would be allowed to work in Kaiser’s construction sites. The Three Cards, Mr Wang explains, are a Hong Kong identity card, a green card (“Green Card”) (which is a “Construction Industry Safety Training Certificate”) and a “CWRC” (which is the abbreviation for a Construction Workers Registration Card), which three cards are documents required by the Labour Department for construction site workers.  For a non-Chinese worker such as Mr Mushtaq, a Pakistani, the worker would be additionally required to produce to him a passport and a valid working visa before such worker would be allowed to work.

21. It is Kaiser’s contention that had Mr Mushtaq been undertaking the Ming Hing’s sub-contracting work at the material time, there would have been a record of the identity particulars of Mr Mushtaq from Ming Hing, which has stipulated a procedure for the engagement of workers, which procedure, according to Mr Wang’s testimony, was broadly as follows:-

(1) Mr Wang would check the identity documents- the Three Cards - of a new worker and for a worker of South Asian ethnicity, his passport and working visa.

(2) The new worker would be brought to the office of Ming Hing which would register the identity of the worker and then provide the safety training that lasted for about 1 to 2 hours.

(3) Personal safety equipment bearing “Ming Hing” logos would then be provided to the new worker.

(4) In addition, every worker would also be required to attend a 15 to 30 minutes’ “Tools Box” talk held every week in the Safety Section of Ming Hing’s office.

22. Mr Wang further said that he did not believe that Mr Mushtaq would have had a Green Card permitting him to work for Sunrise and that he had been employed by Sunrise to undertake the sub-contracting work as claimed because:-

(1) As Mr Wang was present in Ming Hing’s “Induction Training” sessions as well as the weekly “Tools Box” talks for workers, he would have a recollection (印象) of a worker’s face and been able to recognize Mr Mushtaq had he been Sunrise’s employee for the Sub-contracting Work.  He said however that he had never seen Mr Mushtaq before the trial.

(2) According to Sunrise’s list of employees it had employed for the month of April 2011, Mr Mushtaq was not on the list.

(3) He was also informed by Ming Hing that it had no record that the Mushtaq brothers had ever been engaged in its sub-contracting work.

23. Contrary to Kaiser’s contention that he did not have a Green Card, Mr Mushtaq stated for the first time under cross-examination that he had a valid Green Card on the Accident Date and he further produced from his possession two cards bearing his name which were a Green Card issued by the Hong Kong Human Resources with the validity period being from 6 December 2012 to 5 December 2015 (which was marked as “Exh A1”) and a CWRC with an expiry date being on 5 December 2015 (which was marked as “Exh A2”).  These cards had not thitherto been disclosed.

B.2.2 Unlikely that the injury was caused by the dropping of the metal bowl of an electric mixer

24. The photographs of the concrete mixer were produced by Mr Mushtaq only after the witness statements were exchanged, which was, according to Kaiser, the reason that the contention that the bowl of an electric mixer as shown in the photographs could not have been detachable from the stand or pole only came late by way of Mr Wang’s testimony at trial.  Apart from asserting that the bowl was not detachable, Mr Wang also stated at trial that to clean off the cement, it would not have been necessary for the bowl to be taken down to the ground because all that would have been required to be done is simply to hose the bowl with water.

B.3  Discussion and Finding 

25. The relevant approach in respect of the assessment of the credibility of witnesses, was summarized at §30 by the learned Chung J of his judgment in Sai Kung PLB (Maxicab) (No 1 & 2) Co Ltd v Hiew Moo Siew& Anor, HCA2554/2006, unreported, 6 July 2011. He stated:-

“The assessment of a witness's credibility and/or reliability is a task frequently undertaken by the court in litigation (in fact, very often an essential task). I consider the following to be the appropriate test to adopt:-

'There are two objective tests for assessing a witness's credibility regarding a matter to which he has testified:-

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests); this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness's motive for deliberately not giving truthful testimony.  For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest'.”

26. I respectfully adopt the learned Judge’s approach in assessing the credibility of the witnesses in this claim. After having observed the demeanor of the Musthaq brothers in court, and examined their overall evidence, I find them to be honest witnesses, who are clearly simple and unsophisticated young men with little education and limited understanding of English and Cantonese.  Mr Mushtaq was patently truthful, forthright and candid, and I consider him to be reliable, never afraid to volunteer an answer regardless of its effect on his case- such as his evidence, which will be shortly discussed below, in respect of the Green Card and the seemingly confusing evidence about how he had been injured by the dropped metal bowl of an electric mixer - which aspects of evidence have been particularly subject to criticism by Mr Lam as being incredible.

B.3.1 The evidence on the Green Card

27. In his closing submissions, Mr Lam placed great emphasis on the correspondence[4] exchanged in December 2012 between the solicitors for the parties.  According to the correspondence:-

(a) On 11 December 2012, Kaiser’s solicitors wrote to Mr Mushtaq’s solicitors, and asked them in the letter whether Mr Mushtaq had the Three Cards.  The reply was that Mr Mushtaq only had the Hong Kong identity card but did not have a Green card or a CWRC. 

(b) On 19 December 2012, Mr Mushtaq’s solicitors wrote[5] to Sunrise and Mr Amir, and asked them if they could provide Mr Mushtaq’s solicitors with information about various documents that included, among others, Mr Mushtaq’s Green Card and CWRC because (as stated in the letter), Mr Mushtaq “has conducted numerous attempts to locate the same (other than his HKID card) but in vain, and he believes that such documents and/or information may not have ever been in existence or he may have lost them.”  (emphasis added)

28. The correspondence, in particular the part that I have underlined in sub-paragraph (b) above, shows an apparent inconsistency with Mr Mushtaq’s assertion as set out in §23 above.  When cross-examined by Mr Lam, Mushtaq’s explanation for the inconsistency was that he did not tell his solicitors that he had the Green Card because nobody had asked him for such a document, and that even if he had been asked whether he had such cards, he would have said no because he did not think such cards were required or important.

29. Mr Musthaq’s aforesaid explanation has been subject to severe criticism by Mr Lam. Worse still - Mr Lam contends- Mr Mushtaq only produced his current Green Card and CWRC that would later become court exhibits at the trial. This, together with his assertion in his witness statement that he did not have the requisite qualifications and experience is contradictory to Mr Mushtaq’s testimony under cross-examination that he had thrown away his previous Green Card.

30. These various matters referred to above, Mr Lam contends, show that Musthaq has kept changing his evidence and this makes his evidence suspicious.  Such a blatant inconsistency of evidence, Mr Lam suggests, has clearly discredited Mr Mushtaq as an honest witness.

31. Having considered the overall evidence, I disagree with Mr Lam that these aspects of evidence have affected Mr Mushtaq’s overall credibility.  My reasons are as follows:-

(1) The late production of his current Green Card and CWRC (Exhs A1 and A2) does not seem to be consistent with an attempt to conceal the truth.  Had it indeed been the case that he did not have a valid Green Card at the material time (as Mr Lam seems to suggest), he would not have, in my assessment, voluntarily taken out Exhs A1 and A2 because he knew (as revealed in the correspondence referred to in §27) that he had never given his Green Card or CWRC to his solicitors before the trial. 

(2) At trial, Mr Mushtaq gave evidence through, initially a Punjabi interpreter, who was subsequently replaced by an Urdu interpreter.  Significantly, the substitution was made at the juncture when Mr Mushtaq was cross-examined on the question of Green Card when the Punjabi interpreter who had shown already some difficulty in the interpretation told the court that Mr Mushtaq and the interpreter had difficulty in understanding each other in Punjabi.  The interpretation only then started to go more smoothly after Mr Mushtaq gave evidence in Urdu instead.  I also note that Mr Mushtaq’s witness statement was written in English without the usual interpretation clause.  Given Mr Mushtaq’s limited English, misunderstanding or miscommunication between him and his solicitors is likely, which may have been the reason for the apparent inconsistency between his oral testimony and his solicitors’ correspondence referred to above.

(3) What I have relevantly observed, is Mr Mushtaq’s spontaneity in taking out Exhs A1 and A2 from his possession at the same time when he was giving his affirmative answer that he had a Green Card and a CWRC. More importantly, at the time when he gave the affirmative answer, Mr Lam had not just used the terms of “Green Card” or “CWRC”, Mr Mushtaq was shown a photocopy[6] of such cards of a Sunrise worker.  It is not clear whether Mr Mushtaq had previously known what “Green Card” or “CWRC” stood for.  I believe people who are unfamiliar with the construction industry would need an explanation of what these short-hand names stand for. 

(4) There is no evidence that in order to be issued a Green Card, a worker needs to possess certain experience or qualification in construction work.  According to Mr Mushtaq’s answer to a question from me, he explained that he was issued Exhs A1 (his current Green Card) and A2 (his current CWRC) after he had attended a 1 or 2 days’ course consisting of instructions and theories organized by the issuing organization.  He further added that it was necessary to have a Green Card before he was allowed to be employed as a security guard, his present occupation.  Hence, in the absence of evidence on the criteria needed for a Green Card or a CWRC, I do not agree with Mr Lam’s submission that Mr Mushtaq’s testimony at trial of having had a Green Card at the material time is inconsistent with Mr Mushtaq’s assertion in his witness statement that he lacked previous experience and qualifications in construction work.  It is a non sequitur to assume that a Green Card holder is a person in possession of experience and requisite qualifications in construction work.

B.3.2How was Mr Mushtaq injured

32. In his closing submission, Mr Lam also submits that Mr Mushtaq’s account of how he was injured was completely incredible.  First, Mr Lam contends that had Mr Mushtaq indeed been injured by the metal bowl of a concrete mixer, his injuries would have been more extensive.  Referring to Mr Mushtaq’s evidence that the concrete mixer was about 4 feet high, Mr Lam contends that when the metal bowl allegedly slanted towards Mr Mushtaq, it would have likely hit Mr Mushtaq’s body rather than his toe.  Secondly, it is also suggested that with the weight of the bowl being allegedly around 195 kilograms, it is improbable that Mr Mushtaq and his Brother could have lifted the metal bowl by themselves.  Thirdly, contrary to Mr Mushtaq’s assertion that the metal bowl had been detached from the pole or stand, Mr Wang’s evidence, Mr Lam submits, in fact confirms that a metal bowl of an electric concrete mixer cannot be detached.

33. After having evaluated the overall evidence and considered Mr Lam’s submission, I do not find Mr Mushtaq’s evidence improbable or incredible.  My reasons are as follows:-

(1) In spite of the presence of other Chinese workers at the site, I do not find the evidence that only the Mushtaq brothers were instructed to lift the metal bowl inherently improbable.  According to Mr Mushtaq, the lifting of the metal bowl was under Mr Amir’s instruction. It their eye, Mr Amir was the boss.  It is not unreasonable to expect a worker, especially workers such as the Mushtaq brothers - who had little experience and skill in construction work – to feel compelled to obey a boss’s instructions.

(2) Insofar as the weight of the metal bowl is concerned, I am under the impression that 195 kilograms was only an approximation.  All that the Mushtaq brothers were trying to demonstrate was simply that the metal bowl was extremely heavy.  As it would later turn out, the weight was too much for them to bear, and it unfortunately dropped.  As such, I do not think that Mr Lam’s quibble over this evidence will affect my overall assessment of the evidence of Mr Mushtaq’s case.

(3) Mr Lam’s suggestion that more serious injuries (such as crushing of all the toes rather than one big toe) or injuries to the different part of the body (such as the waist area) should have resulted if the injury had been caused by a fallen metal bowl is simply not supported by any evidence.  The bowl was dropped so suddenly, according to Mr Mushtaq, that he did not even have time to avoid the bowl which had become slanted or tilted.  The pain was so severe, Mr Mushtaq said, that he reacted by immediately darting to the other side, and he was unable to look where the bowl had dropped. Mr Mushtaq being unable to recount with precision which part of the bowl (whether it was the edge, the bottom or the upper part of the bowl) caused the injury, or whether the bowl had in fact landed on the ground when it became detached from the pole is,  in my view, consistent with the suddenness of the accident 

(4) Lastly, Mr Lam also relied on Mr Wang’s evidence to contradict Mr Mushtaq’s case about the detachability of the metal bowl.  Miss Tjia did not object to the late introduction of Mr Wang’s assertion that the metal bowl could be detached when Mr Wang testified at trial.  However, in her closing submission, it is contented that the evidence should be rejected (apart for the reason that Mr Wang’s evidence was not credible) as it made it impractical to call for rebuttal evidence when the allegation that the metal bowl was detachable was only raised for the first time at trial. I agree with Miss Tjia that this late introduction is unfair, and reject this part of Mr Wang’s evidence. My reasons are as follows:

(a) Kaiser has failed to plead in its Amended Answer a positive case.  Mr Mushtaq in §2 of the Application has pleaded that he was injured when he was requested “to lift a heavy metal bowl with one MUDUUSIR MUSHTAQ (the Brother)”. In giving further particulars of the accident, in §4(3) of the Application it is further stated that Mr Mushtaq “was assigned to lift the heavy metal bowl of the mixer machine for the purpose of cleaning the same which was so heavy that it suddenly fell and hit on the right big toe of ” Mr Mushtaq.  The averment was repeated again in the “Answer to the Further and Better Particulars” requested by Kaiser.  For example, Mr Mushtaq repeats in the answer to Request No 7 of the averment in §4(3) of the Application and in the answer to Request No 8(i) that the Mushtaq brothers “were instructed to lift the heavy metal bowl without any assisting instruments/equipment”.

(b) By the aforesaid averments, Mr Mushtaq has made his case that the bowl was detachable abundantly clear.  Kaiser nonetheless only specifically denies in its Amended Answer that Mr Mushtaq was its employee or the employee of its sub-contractor, and requires Mr Mushtaq to strictly prove his averments regarding how he was injured.  It has however failed to positively plead that a metal bowl of a mixer could not be detached as Mr Wang has so alleged so late at trial.

(c) By the operation of the more stringent pleading rules after the Civil Justice Reform, the new O18 r13(3) and (4) and of the Rules of District Court  mandates that:-

“(3) Every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement of non-admission of them, is not a sufficient traverse of them.

(4) Where an allegation made in a statement of claim or counterclaim is traversed by a denial, the party who denies the allegation shall in his defence or defence to counterclaim:

(a) state his reasons for doing so; and

(b) if he intends to put forward a different version of events from that given by the claimant, state his own version”

Thus, the consequence of Kaiser only requiring Mr Mushtaq to prove without setting up a positive case in the pleading means that Kaiser will be taken, according to O18 r13, to have merely required Mr Mushtaq to prove his allegations, and it will not be entitled to call evidence of fact contrary to Mr Mushtaq’s contention (See Hong Kong Civil Procedure 2015 (“HKCP”) §18/13/4). Generally, therefore, no evidence of such matters can be given at the trial if they are not expressly pleaded (See HKCP §18/8/2).

(5) If, however Mr Wang’s evidence were to be admitted, I also do not find that it would undermine Mr Mushtaq’s evidence about how he was injured by the dropped metal bowl.  The Mushtaq brothers’ description of the bowl is based on their personal experience of having operated the mixer machine; while Mr Wang’s description is not based on his first-hand experience (for he had admittedly never operated the kind of concrete mixer shown in the photograph of the trial bundle), and indeed Mr Wang’s formal training was in the field of media design, which obviously bears no relation to operating a mixer machine. In the circumstances, the direct evidence of the Mushtaq brothers should be preferred.

B.3.3 The hearsay evidence of Sunrise and Mr Amir

34. Before concluding on this issue, I should also, for completeness, deal with the evidence of Sunrise and Mr Amir though they had been absent from the trial for Mr Amir  had - while he was still legally represented - filed his witness statement, which has, consequent on his absence - become a hearsay statement.  Mr Lam does not seek to rely on Mr Amir’s witness statement - which has been included in the Trial Bundle - but agrees with Miss Tjia that the statement should not be excluded but be given appropriate weight in accordance with the provisions of ss 47 (1) and 49 of the Evidence Ordinance (Cap 8).

35. It is their case that Sunrise was Kaiser’s sub-contractor (until February 2011) and that the principal contractor was Ming Hing but they denied any employment relationship between them and Mr Mushtaq.

36. According to Mr Amir’s statement, it is stated materially that since 1 January 2011, Sunrise had sub-contracted some of the construction work from Kaiser, which work mainly required an application of cement on the wall at Tuen Mun. The principal contractor was Ming Hing.  However, upon discovering that the contract fees were paid to a Mr Chan Wing Fat, with whom Sunrise had cooperated in some decoration and contraction work, Sunrise stopped working for Kaiser in February 2011. 

37. After having considered the overall evidence, I am not -apart from finding it as a fact that Sunrise was Kaiser’s sub-contractor undertaking Ming Hing’s sub-contracting work in Tuen Mun at one stage in 2011, and that Ming Hing was Kaiser’s principal contractor and that Mr Chan Wing Fat was somehow involved with Sunrise sub-contracting work from Kaiser - inclined to attach any weight to the evidence in respect of Mr Amir’s denial of the employment relationship with Mr Mushtaq. I am also not inclined to attach any weight to his averment that the sub-contracting relationship with Kaiser ended by February 2011 (which, as will be discussed in §§41 & 46 below, is contradicted by Kaiser’s witnesses) for the following reasons:-

(1) As Miss Tjia submits, I find that Mr Amir has a motive to misrepresent the truth.  If the employment of Mr Mushtaq (for whatever reason) was found not to be covered by the principal contractor’s insurance (which seems to be the case) he would have known that he will be personally liable for compensating Mr Mushtaq.

(2) Mr Amir’s statement is devoid of detail.  For example, it is stated that he did business with Mr Chan Wing Fat together, and yet little detail has been given as to the role that Mr Chan took in relation to Kaiser’s sub-contracting work to Sunrise.  Neither is there any reference made to whether Sunrise, as the sub-contractor of Kaiser, was required to follow any procedure in relation to the workers Sunrise hired for the sub-contracting work.  Needless to say, neither are there any supporting documents concerning the admitted engagement of the Brother since 2010 until February 2011 as Sunrise’s casual worker.

B.4  Conclusion on issue (1)

38. For the reasons above, I find as a fact that Mr Mushtaq, as pleaded in the Application, was injured by a dropped metal bowl of a concrete mixer in the course of employment by Sunrise and Mr Amir at the Subject Site on the Accident Date.

C.  WHETHER SUNRISE/MR AMIR WAS KAISER’S SUB-CONTRACTOR AT THE MATERIAL TIME?

39. Mr Mushtaq has - apart from obtaining from Mr Amir the name card of Kaiser (which card was subsequently passed on to the Legal Aid Department when he applied for legal aid) and learning from him at the end of June 2011 that Kaiser was the principal contractor - no direct evidence against Kaiser.

40. Kaiser also says that it had no knowledge of the accident until it received a letter from Mr Mushtaq’s solicitors on 17 August 2012.  Now that I have found for Mr Mushtaq in respect of issue (1), Kaiser’s principal answers to Mr Mushtaq’s Application (according to its Amended Answer) will mainly be that the Subject Site (the site where the accident occurred) was not the site (“Sub-Contracting Site”) where Ming Hing’s work to Kaiser which had been further sub-contracted to Sunrise (“Sub-contracting Work”) was being undertaken by Sunrise. The other contention is about the lack of record that Mr Mushtaq had been employed by Sunrise – the evidence of which has already been set out in Section B2.1 above.

C.1  Was the Subject Site the Sub-Contracting Site

C.1.1 The nature/scope of the Sub-contracting Work

41. According to Mr Ha, in April 2011, Kaiser had a lot of projects in New Territories West, including waterworks projects in Tuen Mun of its principal contractor, Ming Hing under the government’s Water Supplies Department (“WSD”). Kaiser had also sub-contracted its work to different sub-contractors.  The only work however Kaiser sub-contracted to Sunrise on the Accident Date was the Sub-contracting Work, which was the waterworks in Tuen Mun under a maintenance contract no. 1/WSD/09(W) (“the Main Contract”). 

42. Insofar as the scope of the Sub-contracting Work is concerned, Mr Ha says that it only involved concrete repair (石屎修補) around the catchment channel (引水道) at the hill, including “road works”.  Mr Wang also elaborates that the work also involved the application of cement mixtures (水泥) into the catchment channel.

C.1.2 The location of the Sub-contracting Site

43. According to Mr Wang, the Sub-contracting Site was usually next to a country park and was relatively small, which would only have been about two and a half meters wide.  Mr Wang further adds that he had never seen during any of his site inspection of the Sub-contracting Site the type of concrete mixer that Mr Mushtaq said he had allegedly operated.  Mr Wang also says that such an electric mixer would only be used in slope work but was not needed for the Sub-contracting Work.

C.1.3 Usual starting time for the Sub-contracting Work

44. Kaiser says that since there were a set of routines to be followed in Kaiser’s work sites, the time for the workers to start working at the Sub-contracting Site would have usually been around 9-10 am, and not as early as 8:30, being the time the Mushtaq brothers claimed.  According to Mr Wang, he usually started his daily routine of Kaiser’s construction sites in Tsuen Wan, Yuen Long and Tuen Mun around 8 am after having received information from his sub-contractors as to the approximate number of workers to be working on the day in the site including the Sub-contracting Site.  He would then telephone Ming Hing which would in turn relay the information to the WSD. By 9:30 to 10:00 am, he would meet the foremen of the WSD, Ming Hing and Sunrise at a Sub-contracting Site where Mr Wang - unless he was engaged elsewhere, in which case, Ming Hing’s supervisor - would brief the workers and management before the workers commencing working.

45. As the workers had to be briefed, which according to the above schedule, was to be around 9:30 to 10am, Mr Wang said it would not have been usual for a worker to start working before 9:30am.

C.1.4 The Subject Site was the site of Sunrise’s other contracting work

46. Kaiser also seems to be suggesting that it may be possible that the Subject Site was the site of Sunrise’s other contractors.  This is because Mr Wang testified that Sunrise was sub-contracted the Sub-contracting Work from around the end of 2010, and the Sub-contracting Work only ended in May 2011 after he had been informed by Mr Chan Wing Fat that Mr Chan no longer worked as Sunrise’s partner. He recalled that in the beginning of the Sub-contracting Work, Ming Hing had complained to him that Sunrise did not have sufficient workers working for the Sub-contracting Work.  This prompted Mr Wang to inquire about this issue from Mr Chan Wing Fat who had in turn told him that the reason for Sunrise’s labour shortage was allegedly due to the fact that Sunrise was also working for other contractors apart from Kaiser.

47. Apart from a complaint from Ming Hing about Sunrise’s labour shortage, Mr Wang also said that he himself found out at one stage that the number of workers working for the Sub-contracting Work had been reduced.  It was again Mr Chan Wing Fat who told him that Sunrise had allegedly other sub-contracting work.

C.2  Kaiser’s initial response

48. After the commencement of this Application, Kaiser either by itself or through its solicitors in November 2012 wrote to Ming Hing to inquire about insurance policy and further urged Ming Hing to ask its insurer to take over the defence of the claim.  In this correspondence, apart from referring to the Main Contract, it further alludes to Mr Mushtaq’s injury as being [7] “highly probably be (sic) arisen during his alleged course of employment with (Sunrise) and/or (Mr Amir) and that (Sunrise) was our client’s (Kaiser’s) subcontractor of the works within the Contract (the Main Contract)”.

49. Under cross-examination, Mr Ha’s explanation for the content and tone of this correspondence was that since Kaiser had no knowledge of the accident, and that the only work that Kaiser had sub-contracted to Sunrise was the Sub-contracting Work under the Main Contract, Kaiser wanted to inquire from Ming Hing to ascertain if its insurer would take over the proceedings for Kaiser.

C.3  Discussion and finding

C.3.1 Mr Mushtaq’s case on the name card

50. For Issue (2), the only evidence that Mr Mushtaq has is Kaiser’s name card Mr Amir gave to him when the subject of compensation was raised.  It has however been contended by Mr Lam that had Mr Mushtaq’s account of how he came by the name card been indeed true, there is no logical reason why Mr Mushtaq would not have contacted Kaiser for the sick leave payment after he had allegedly been given their name card in, according to Mr Mushtaq’s evidence, June 2011.

51. I have, as discussed in Section B above, found Mr Mushtaq simple-minded and inexperienced and that Mr Mushtaq and the Brother were honest and credible witnesses.  Hence, it is my assessment that Mr Mushtaq has told the court the truth regarding how he came by Kaiser’s name card.  I do not consider it incredible - given Mr Mushtaq’s simple-mindedness - that Mr Mushtaq himself did not contact Kaiser for payment but passed the name card to the Legal Aid Department when he shortly afterward made an application for the latter’s assistance.  Thus, I find as a fact that Kaiser’s name card had been given to Mr Mushtaq in the circumstances that have been set out in §17 above. 

C.3.2 Kaiser’s evidence

52. Miss Tjia’s submits that I should scrutinize the evidence of Kaiser’s witnesses with great care because both Mr Ha and Mr Wang are the family members of Kaiser’s sole-shareholder.  In assessing a witness’s evidence, a court should always take care.  There should therefore be no exception in respect of Kaiser’s witnesses.  I find that Mr Ha was by and large an honest witness.  He did his best to tell the court what he knew.

53. As for Mr Wang, his evidence is more contrived and appears embellished. I form the impression that Mr Wang has tried to paint a picture that the workers working in the Sub-Contracting Work were all subject to a very elaborate system, which he had, as Kaiser’s safety officer, claimed to have strictly applied. 

54. The reliability of Mr Wang’s evidence on the procedure and system, in my view, should be assessed against Mr Wang’s role as Kaiser’s safety officer who had been, undoubtedly entrusted with the responsibility of ensuring that all the requisite procedures laid down by Ming Hing had been complied with.  Should there be non-compliance not only would Kaiser’s interest be adversely affected, Mr Wang’s own suitability and competence as the safety officer would also be called into question.  As such, his evidence in this case has often been unreliable, predetermined by the outcome he hoped to achieve. I have been particularly circumspect as to what claims I have accepted from him unless it is supported by other independent evidence.

55. I am not impressed by Mr Wang’s evidence. Quite apart from the fact that a lot of his evidence adverse to Mr Mushtaq’s case is hearsay (for example, the allegation that Sunrise had other contractors), his evidence is not corroborated. His rather detailed description of the procedure for the recruitment of workers for the Sub-contracting Work and the daily routine of his work, on the whole, lacks concreteness.  Had he diligently followed a system and routine that he claimed to have existed, one would have reasonably expected that documents would have been made available to support Mr Wang’s evidence that the identity particulars were allegedly required and recorded by Ming Hing, and that he also would have notes or records of his daily work.  I find that quite improbable.

56. The inherent unreliability of Mr Wang’s evidence can also be seen from his account of his dealings with Sunrise.  Given the fact that Mr Amir was Sunrise’s sole proprietor, he would have logically been the person in charge of the Sub-contracting Work, including the provision of workers, making contact with Mr Wang.  In his evidence, however, Mr Wang hardly mentioned Mr Amir as Sunrise’s key operator.  It would appear from Mr Wang’s evidence that his contact with Sunrise was through Mr Chan Wing Fat (whom he described as Sunrise’s partner) rather than through Mr Amir.  As evidenced in Sunrise’s business registration, Mr Chan was not a partner of Sunrise. 

57. Incidentally, Mr Chan was also mentioned in Mr Amir’s witness statement (as already discussed in §36 above), in which Mr Amir stated that Sunrise sometimes worked together with Mr Chan who would get some decoration work contracts on behalf of Sunrise.  Mr Chan’s relationship with Sunrise and the role that he had played in respect of his contact with Kaiser concerning the Sub-contracting Work are wholly unclear.  I believe it is more likely that Mr Wang might in fact have had very little contact with Mr Amir as he was overseeing the Sub-contracting Work for, according to his evidence, the contact person was through a third party, Mr Chan.  It is thus inherently probable that Mr Wang also had very little information about how Mr Amir undertook the Sub-contracting Work.

58. Mr Lam in §46 of his Closing Submission lists out in a tabular form six differences between the evidence of the Mushtaq brothers and Kaiser’s witnesses – (a) the working hours, (b) the nature of work, (c) the required identity documents, (d) the safety training, (e) the description of the location, and (f) the mode of cement mixing - and contends that the differences clearly show that the Subject Site is not the Sub-Contracting Site.  However, for the reasons that I have given in §§53 to 57 above, I find that where there is a difference between the evidence of the Mushtaq brothers and of the evidence of Mr Wang, I prefer the former’s evidence.  I conclude that the Subject Site was, on balance, a Sub-Contracting Site.   My reasons are as follows:-

(1) Insofar as the difference in working hours between the evidence of the Mushtaq brothers (who said after 8:30) and that of Mr Wang (who testified after 9:30) is concerned, I have given the reasons for preferring the formers’ evidence should there be any difference.  That said, however, quite contrary to Mr Lam’s contention, I do not in fact think there is much of a divergence of evidence about the starting time as I believe the starting times indicated by both parties’ witnesses are approximations.  According to Mr Mushtaq, he arrived at the site at 8:30; he did not in fact say that he started working at 8:30 am.  He said that he only started operating the machine after Mr Amir’s briefings.  Thus, he would only have likely started working after 8:30, probably around 9 am or thereabout.  Likewise, I do not think that Mr Wang’s references to the different times for his daily routine are set in stone.  The tenor of Mr Wang’s evidence seems to suggest that due to the need for all the foremen of WSD, Ming Hing and Sunrise and himself to meet up at the Sub-contracting Site, the workers would only have started working after the briefings.  The WSD’s staff, according to Mr Wang, started work quite early, at 8 am.  Hence, I should think that 9 to 10 am is not outside the usual time frame even if I were to prefer Mr Wang’s evidence.

(2) It is Mr Lam’s contention that the description of the type of work Mr Mushtaq did (road works) was different to that of the Sub-contracting Work (waterworks).  In trying to understand what exactly was the kind of work Mr Mushtaq did on the Accident Date, I think it is important to bear in mind that the parties’ witnesses have described the type of work from different perspectives. Mr Mushtaq told the court what he actually did, mixing of the cement by a road side.  Hence, he called it “road works” in a very loose way.  On the other hand, the description of the work by the witnesses of Kaiser as waterworks seems to be mainly based on the word “Waterworks” used in the Main Contract (which is described as “Term Contract for Waterworks”).  It is in the evidence of both Mr Ha and Mr Wang that the Sub-contracting Work included “road works”. Mr Wang has in fact also referred to the work that involved the application of cement to the catchment area.  There is therefore not such a difference in the description.

(3) Mr Lam pointed out that Mr Mushtaq’s case of the lack of Mr Amir checking the identity documents - the Green Card and the CWRC - and providing safety training are in complete contradiction to Mr Wang’s detailed explanation of the procedure as set out in Section B.2.1 above. In my view, the lack of corroborative evidence concerning the detailed procedure and system as Mr Wang claimed perhaps reflects a lack of rigour throughout Kaiser and Sunrise in respect of the Sub-contracting Work. I find there also appears to have been good reason for them to depart from the usual procedure, had there been one.  It is because, firstly, Sunrise, according to Mr Wang’s evidence, was found to be experiencing a shortage of workers in the Sub-contracting Work, - which evidence incidentally is corroborated by the Brother’s evidence  (at §8 above) - that the site where he worked at sometimes did not have enough workers and Mr Amir had asked him to bring workers for him.  Secondly, Mr Wang did not seem to have a close supervision of and contact with Mr Amir.  He, as I have found, appeared to have mostly contacted Mr Chan, whose relationship with Sunrise is unclear. Given the fact that Mr Amir might have likely been left to undertake the Sub-contracting Work on his own, it would also seem to be plausible that a systematic safety training might not have been strictly followed given firstly that, the Mushtaq brothers were only instructed to do routine work of mixing concrete, and secondly that, Mr Amir would have likely been told that Mr Mushtaq would only be a temporary worker.

(4) Apart from stating the Subject Site was in Tuen Mun, the Mushtaq brothers were unable to give any further details.  There is little dispute - according to Mr Amir’s witness statement (see §36) and Mr Ha’s evidence (see §41) - that the Sub-contracting Work was also in Tuen Mun.  It is however Mr Lam’s contention that the description of the Subject Site by Mr Musthaq is different to the Sub-contracting Site Kaiser’s witnesses have described. I have carefully compared the description of the Sub-contracting Site by Mr Ha with that of Mr Mushtaq’s. I am unable to say that the Subject Site is not the Sub-contracting Site.  The Sub-contracting Site, according to Mr Ha, is at the catchment channel (引水道) of the hill and Mr Mushtaq has also referred to the Subject Site being near to a hill with trees.  I do not accept Mr Lam’s submission that the descriptions are totally different.

(5) Lastly, Mr Lam also said that according to Mr Wang, the mixing of concrete would have been done manually, which method is entirely different to Mr Mushtaq’s case of requiring an electric concrete mixer.  According to Mr Mushtaq, there were other Chinese workers at the Subject Site.  It would thus seem that the Mushtaq brothers had only been instructed to carry out a very specific task of mixing concrete by an electric mixer.  All that Mr Wang said was that given the relatively small size of the site, it would not have been necessary to use an electric mixer, but his evidence does not go to the extent of suggesting that the Sub-contracting Work did not require mixing concrete.  Neither did he say that mixing concrete does not require an electric mixer. 

(6) All in all, for the reasons that I have explained, I prefer the evidence of Mr Mushtaq and the Brother.  In any event, despite Mr Wang’s account of his purported close supervision, it would appear that Kaiser did not provide machines or work equipment (apart from his evidence that Ming Hing would allegedly provide some safety tools like helmet and work clothes to the workers) to Sunrise or specify the mode of work to be undertaken for the Sub-contracting Work.  Sunrise appeared to have been left on its own in deciding the mode of work including whether an electric mixer should be used or not in the Sub-contracting Site.

C. 4  Finding on Issue (2) 

59. In my view, the evidence on how Mr Mushtaq had come by Kaiser’s name card alone– which evidence I have accepted (see §51 above) - is a compelling piece of evidence from which this court can infer that Sunrise was the sub-contractor of Kaiser on the Accident Date when Mr Mushtaq was injured in the course of employment with Sunrise in the Subject Site.

60. More importantly is that when Kaiser became aware of Mr Mushtaq’s claim (in August 2012), it appeared that it was mainly concerned about – as demonstrated from the correspondence referred to in Section C.2 above – whether Ming Hing’s insurer would take up the proceedings. They - apart from inquiring whether Mr Musthaq had a Green Card and a CWRC - took no steps to verify Mr Mushtaq’s claim.  The lack of specific denial in Kaiser’s pleading as already discussed in §33(4)(b) above tends to suggest that Kaiser did not question the veracity of Mr Mushtaq’s assertion in respect of the circumstances of the accident and of how he came to know that Kaiser was the principal contractor.

61. To conclude, I am satisfied that Mr Mushtaq has proved, on a balance of probabilities, that his injury was caused by an accident arising out of and in the course of his employment with Sunrise/Mr Amir and that Sunrise was Kaiser’s sub-contractor performing the Sub-contracting Work at a Sub-contracting Site in Tuen Mun.

62. Thus, by the operation by s 24, it is not disputed that Kaiser, as Sunrise’s principal contractor, is also liable (together with Sunrise and Mr Amir) to pay compensation to Mr Mushtaq.

D.  Proper quantum for compensation:

SECTION 9 COMPENSATION FOR PERMANENT PARTIAL INCAPACITY- PERCENTAGE FOR LOSS OF EARNING CAPACITY

63. By way of Form 7, the Ordinary Assessment Board (“Board”) described Mr Mushtaq’s injury as “(r)ight big toe fracture resulting in residual right big toe pain and stiffness” and assessed his permanent loss of earning capacity at 1%.  It also confirmed the sick leave periods from 9 April 2011 to 12 March 2012 and from 29 March 2012 to 30 April 2012.  On review, by way of Form 9, the Board maintained its original decisions on both the loss of earning capacity and the said sick leave periods.

64. Mr Mushtaq says the loss of earning capacity should be 3% instead of 1%. His case is supported by the opinion of Dr Wong See Hoi (“Dr Wong”) of the joint report of Drs Wong and Fu Wai Kee (“Dr Fu”) dated 27 September 2013 (“Joint Report”), in which Dr Wong states that the loss of earning capacity should be 3% on the basis of Mr Mushtaq’s residual pain, and also endorses the sick leave periods granted to Mr Mushtaq as assessed by the Board.

65. Kaiser’s expert, Dr Fu, endorses the Board’s assessment of the loss of earning capacity of 1% and opines that a reasonable sick leave should not be more than six months.  It is Dr Fu’s opinion that (a) Mr Mushtaq’s injury is a minor injury; (b) The range of movement of the right toe will not be affected (as the tendon, nerves and joints are not involved, and the fracture only had minimal displacement), (c) Mr Mushtaq’s reported stiffness of the toe should be due to sub-optimal effort as the passive range of movement of the toe is full, (d) Mr Mushtaq’s complaint of pain on prolonged walking , wearing shoes or walking up and down stairs cannot be explained on clinical grounds as there is no muscle wasting in his right lower limb that should have resulted if Mr Mushtaq had avoided  putting weight on his right foot , and (e) Mr Mushtaq’s complaints of pain and severe tenderness of the big toe, which in his view ( after reviewing an X-ray that shows the fracture is well united and the physical examination that does not reveal any swelling or inflammation) are likely due to symptom magnification or exaggeration.

66. Mr Mushtaq has appealed against the Form 9 assessment pursuant to s 18 (1).  The parties have no dispute on the correct test to apply for an appeal brought pursuant to s.18 against the assessment of the Board.  According to the authorities Miss Tjia submits, the test is that a court:-

(1) Should approach the appeal by starting afresh as the board provides no material to explain the basis of its approach (Tsang Kwong Tong v Tennille Decoration & Design Ltd & Ors, CACV 42/2006, unreported, 10 October 2006 at §39, applying Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC115;  Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246).

(2) “ … (O) ught not to speculate and ‘can only judge an assessment by testing the validity of its conclusion against the total available evidence’ “(Tsang Kwong Tong at §47, applying Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd [1991] 2 HKLR 455).

67. Furthermore, for the assessment of the loss of earning capacity, there is also little dispute that, the court should, according to the authorities counsel submit, take into account:-

(1) The effect of the injuries on the earning ability of the injured employee rather than the seriousness of the injuries (Yung Chi Man v Tang Kan Fu t/a Yun Shing Motor Service, unreported, DCEC 770/2004, unreported 6 February 2006 at §24).

(2) Apart from medical opinion, other factual matters such as the employee’s age, education and background, his degree of difficulty in finding placement in the labour market and a comparison of the earnings that he is capable of with his impairment and the earnings he would have been able to make but for his injuries (Kan Wai Yip v Everbest Port Services Limited, DCEC 383/2008, unreported at§§43 & 45).

68. The applicable authorities having been stated, it will be necessary to - for the sake of completeness and though counsel have not specifically referred to it - also refer to the relevant statutory framework governing Mr Mushtaq’s injury, which as parties have agreed, was a non First Scheduled injury - for which a percentage is given for loss of earning capacity due to permanent partial incapacity resulting from the injury. The relevant provision will be s 9 (1) (b), which requires a court to assess a percentage of compensation ‘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’.

69. The court should, in addition, also draw attention to provisos (i) and (ii) to s 9 (1) (b). The appropriate percentage for the loss of earning capacity, according to proviso (i) should not exceed the percentage specified for an injury to any part of the body in the First Schedule in respect of an injury that does not amount to the loss of that part of the body, and further that the court, according to proviso (ii) should have “regard so far as possible to the scale of percentages specified in [the First] Schedule and to the Note thereto”.  As such, the applicable Note to this case will be Note (1A)[8] , which is in respect of an injury only involving a partial impairment to a toe (not all the toes), which essentially requires a consideration of the extent of impairment caused by the fractured toe which is to be treated as the loss of such proportion of the percentage of loss of earning capacity prescribed in the First Schedule as the partial impairment to the use of the injured toe bears to the total loss of the use of that toe.

70. The analogous Scheduled injury for my reference will be ‘Item 37’of the First Schedule that involves loss of toes.  Since Mr Mushtaq’s injury to his big toe, or great toe (as so described in “Item 37”) involves - according to the medical reports referred to in the Joint Report a “fracture right big toe distal phalanges” - the relevant Scheduled injury will be the loss of a great toe, both phalanges under ‘Item 37’, for which 14% loss of earning capacity is prescribed.

71. Accordingly, in this case, it will be necessary to examine all the factors relevant to the determination of an appropriate percentage.  After the accident, Mr Mushtaq did not return to his pre-accident employment as a general worker with the Equestrian Centre, which job, according to Mr Mushtaq, required him to wear safety shoes as there were pins on the ground where horses were kept.  His job duties were to take care of horses, which included walking them and cleaning their stables.  As a result of the injuries he could no longer wear the safety shoes for the front part of such shoes were hard.  His injured right toe would be pinched and he would feel pain.

72. For the same reason, Mr Mushtaq said he is unable to work as a construction worker if the employer requires the wearing of safety boots even though there may be some employers who do not so require.

73. Since November 2012, Mr Mushtaq started to work as a night security guard at a construction site earning $8,000 per month.  He currently takes pain-killers occasionally to relieve the pain from the toe.

74. Medically, the doctors find that Mr Mushtaq’s condition has reached maximal medical improvement and that his daily living is unlikely to be affected but that he will be expected to have residual right toe pain.  They opine that Mr Mushtaq should be able to return to his job as a construction site worker but with reduced efficiency.  The only difference between Drs Wong and Fu is the degree of residual pain and reduction of efficiency, with the latter holding the view that the extent is only minimal.

75. Mr Lam’s contention that Mr Mushtaq suffers no loss of earning capacity is based on his comparing of Mr Mushtaq’s pre-accident wages of $10,000 at the Equestrian Centre with the latest monthly salary of around HK$10,431 of a security guard as published by the Census and Statistics Department.  He therefore contends that I should confirm the Board’s assessment on the loss of earning capacity as 1%.

76. Miss Tjia objects to Mr Lam’s said method of calculating the loss of earning capacity on the ground that it is unfair for Mr Lam’s approach to ignore the salary increments of the past years.  It is submitted that the fairer approach will be to use the average wage of a security guard (an employment that Mr Mushtaq is now capable of) on the Accident Date, which according to the wages published by the Census and Statistics Department, was between $7,407 and $8,901, with wages he earned from his employment with  the Equestrian Centre.

77. I agree with Miss Tjia’s submission that the approach Mr Lam takes is grossly unfair.  I respectfully reject his submission. Mr Lam’s reference to Mr Mushtaq’s wages as a measurement of his earning capacity is to equate ‘loss of earning capacity’ with lost earnings, which is made in my view abundantly clear as being inappropriate by the definition provision of ‘partial incapacity’ in s 3 - where reference is made to reductions in an employee’s ‘present or future’ earning capacity as well as s 9 (4) that provides that a court is ‘not obliged’ to give weight to an employee’s actual post-accident earnings.

78. On any view, a wage comparison method does not support Mr Lam’s contention that Mr Mushtaq has suffered no loss of earning capacity when a fairer method is to be adopted, which , in my view, should be using a comparison between the notional wages at the time of the accident for the work Mr Mushtaq is now capable of, being a nighttime watchman, which wages, as indicated in §76 above, were between $7,407 and $8,901; with that of Mr Mushtaq’s pre-accident wage, which was $10,000 from the Equestrian Centre. Contrary to Mr Lam’s contention, the wage comparison reflects a salary reduction in the region of $2,593 to $1,099. 

79. After having considered all the matters discussed above and having gone through all the government medical and rehabilitation reports, I am not satisfied that 1% is a percentage proportionate to Mr Mushtaq’s loss of earning capacity and conclude that  3% - which is also Dr Wong’s opinion- is appropriate.  My reasons are as follows:-

(1) Mr Mushtaq’s injury, being to his right toe, represents a significant portion of his whole body, but the actual injury itself is not as minor as Dr Fu opines.  Dr Fu’s opinion of 6 months as the appropriate sick leave period is neither supported by the sick leave certificates that certify a total period of 372 days (which is twice as long as Dr Fu opined) nor by the Board’s assessment. It was a comminuted fracture that required hospitalization of 2 days to repair the fracture. 

(2) Mr Mushtaq’s employment with the Equestrian Centre appeared to be a stable and regular employment with annual leave of at least 14 days.  Mr Mushtaq is shown to have been able to hold down this job well because he was employed as an 18 year old man in 18 January 2010.  The employment only ended on 30 April 2011, apparently due to his injury.  But for the injury, there is a high probability that Mr Mushtaq could have been continuously employed by the Equestrian Centre.

(3) I have no doubt that Mr Mushtaq can no longer go back to walk the horses not only because of the requirement of the wearing of safety shoes that Mr Mushtaq is unable to do, but also because the job nature itself is also physically demanding requiring a lot of walking, which would cause difficulty to Mr Mushtaq.

(4) Whilst Mr Mushtaq may be able to work in certain construction sites that do not require the wearing of safety shoes, he will, given the residual pain, unlikely be able to be as efficient as he should have been but for the accident.

(5) Given Mr Mushtaq’s limited education and skill with very little English and Chinese, I believe that in Hong Kong he can only find work in an unskilled employment such as his present job as a security worker that does not require too much physical exertion.

80. For the reasons above, I substitute the Board’s assessment of 1% with 3% for the loss of earning capacity.

81. Given that Mr Lam agrees that an age multiplier of 96 (as fixed by s 7) is applicable, and there being no dispute on Mr Mushtaq’s relevant monthly earnings of $12,750, I therefore award him HK$36,720 (HK$12,750 x 96 x 3%) as compensation under s 9.

E.  Award

82. Section 10 compensation is agreed at HK$126,480 and the parties have agreed that the sum awardable under s 10A for medical expenses is HK$862.

83. In the circumstances, I award Mr Mushtaq compensation under the Ordinance (a) HK$36,720 under s 9, (b) HK$126,480 under s 10 and (c) HK$862 under s 10A.

84. Sunrise and Mr Amir are liable for compensation as Mr Mushtaq’s direct employers and Kaiser as their principal contractor, and judgment should be entered against them in favour of Mr Mushtaq.  Mr Mushtaq 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.

F.  Costs

85. I make an order nisi that the costs of the Application are to be paid by Sunrise, Mr Amir and Kaiser, with certificate for counsel, and for Mr Mushtaq’s own costs to be taxed in accordance with the Legal Aid Regulations.  This order will be made absolute 14 days from the date of the judgment if no party applies to vary it.

G.  Indemnity under s 24(2)

86. Now that Kaiser is found to be liable for compensation and the costs of this application, the issue of indemnity under s 24 (2) against Sunrise and Mr Amir arises.  Kaiser issued a Notice of Indemnity on 10 November 2014 only after the hearing of the evidence was concluded.

87. Referring to the Court of Appeal decision of Mak Wing Fai v Chevalier (HK) Ltd & Anor, CACV 227/1998, unreported, 7 May 1999, Mr Lam asks me to order Sunrise and Mr Amir to indemnify Kaiser in the event of the latter being found liable for damages to Mr Mushtaq. 

88. Section 24 (2) provides that in the event that a principal contractor is liable to pay compensation to an injured employee, it shall be entitled to be indemnified by “any person who would have been liable to pay compensation to the employee”. Mak Wing Fai, supra. establishes that a principal contractor’s entitlement to an indemnity includes not only compensation that he pays to an applicant but also his costs, and further that no indemnity notice is required to be served though it is a good practice to do so.

89. In the circumstances, having regard to s 24(2) and Mak Wing Fai, I am satisfied that Kaiser is entitled to be indemnified by Sunrise and Mr Amir for the compensation and costs of this application that it pays to Mr Mushtaq.