CHAN CHUN MING v. CHAN TUNG LEUNG AND ANOTHER

LA/ECC/15588/2009 (AJ23)
DCEC 1462/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1462 OF 2009

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IN THE MATTER OF AN APPLICATION BETWEEN:-

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JUDGMENT

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The Application

1.  On 7 April 2008, the Applicant fell from a platform above the front door (“the platform”) of No. 25, Hong Lok Yuen West Road, Tai Po, New Territories, Hong Kong (“the Site”) to the ground and sustained injuries to both his heel bones (known as calcaneal) (“the Accident”).

2.  At the time of the Accident, the Applicant claims that he was employed by the Respondents as a painting worker on a casual basis at the Site earning HK$530 per day.  Accordingly, the Applicant claims compensation against the Respondents pursuant to the Employees’ Compensation Ordinance, Cap. 282.

The issue

3.  The Respondents dispute the claim of the Applicant on the ground that there was no contractual relationship between the two parties at the material time. The Applicant is therefore not entitled to claim against the Respondents for compensation for the injuries he sustained from the Accident.

4.  The only issue which the Court has to determine is whether the Applicant was an employee of the Respondents at the material time, and if so, whether the Accident occur in the course of the employment of the Applicant with the Respondents.

5.  During his closing submissions, Counsel for the Respondents, Mr. Kevin Hon, expressly stated that the Respondents do not dispute the calculations on quantum set out in the written closing submissions of Counsel for the Applicant, Mr. Edward Fan, dated 10 March 2011. 

Evidence

(i) The Applicant’s evidence

6.  The Applicant adopted his witness statements dated respectively 29 June 2010 and 22 November 2010 as his evidence-in-chief.

7.  The Applicant is a painting worker for over 10 years and has been working at various sites on a casual basis prior to the Accident.  In the evening of 6 April 2008, because he had been out of work for a few days, he telephoned Mr. Chan Tung Leung (“Mr. Chan”) of the Respondents and asked to be employed.

8.  Mr. Chan told the Applicant to work at the Site on the following day for the daily wage of HK$530.

9.  The Applicant went to the Site in the morning of 7 April 2008.In accordance with the information previously provided to him by Mr. Chan, he met up with another worker, one Mr. Hui Tai Bill (“Mr Hui”), who was also going to work at the Site, at Tai Wo Railway Station.  The two of them then went to the Site by taxi together.

10.  The Applicant and Mr. Hui reached the Site before the arrival of Mr. Chan.  The Applicant started clearing some fallen leaves and rubbish as well as cleaning the walls on the platform.  He had to climb up a ladder in order to reach the platform.

11.  When the Applicant wanted to descend from the platform, he discovered that the ladder he had used earlier had gone missing.  He attempted to call Mr. Hui on his mobile phone but was unable to get through to Mr. Hui.  He also shouted out for help but no one responded to his call.  The Applicant fell to the ground while he was attempting to descend from the platform via some bamboo scaffoldings nearby.

12.  After he fell to the ground, Mr. Hui and Mr. Chan came to his aid. Before taking the Applicant to the Kwong Wah Hospital in his car, Mr. Chan gave him the name of the Respondents company, i.e. View Run Company (匯潤公司) (“the Company”), and asked him to supply the said name to the relevant parties for the purpose of filing his claim for the injuries sustained from the Accident. 

(ii) The Respondents’ evidence

13.  Mr. Chan and Mr. Hui gave evidence in Court.  Mr. Chan adopted his witness statement dated 9 July 2010 and Mr. Hui adopted his witness statement dated 3 February 2010 as their respective evidence-in- chief.

(iii) Mr. Chan’s evidence

14.  The Company has been trading as a furniture vendor and contractor related to decorations.

15.  He came across the Applicant previously when the Applicant was working for a sub-contractor of the Company.

16.  In the evening of 6 April 2008, the Applicant telephoned Mr. Chan looking for work as the Applicant had been out of work for some 10 odd days. When the Applicant learned that Mr. Chan had works to do at the Site, the Applicant offered to go over to the Site to help on the following day.

17.  At that juncture, Mr. Chan was considering contracting out the painting job at the Site (“the job”) to a sub-contractor, he therefore did not object the Applicant to visit the Site in the morning of 7 April 2008.

18.  However, because the Applicant did not confirm his attendance at the Site in the morning of 7 April 2008 with Mr. Chan, Mr. Chan asked Mr. Hui to go to work at the Site instead of the Applicant.  Under cross-examination, when it was suggested to Mr. Chan that it did not make any commercial sense for him to ask Mr. Hui to start working on the job on 7 April 2008 without agreeing on the remuneration to Mr. Hui,  Mr. Chan put in a new version of the event (which is nowhere to be found in his witness statement) by testifying that in the evening of 6 April 2008, he asked Mr. Hui to go to do the job for an agreed sum of HK$15,000, and Mr. Hui accepted his offer.

19.  Notwithstanding that Mr. Chan had engaged Mr. Hui to carry out the job, the Applicant nevertheless turned up at the Site by travelling from the Tai Wo Railway Station to the Site with Mr. Hui in the morning of 7 April 2008.

20.  Having met up with the Applicant at the Site in the morning of 7 April 2008, Mr. Chan did not have the heart to tell the Applicant that the job had already been given to Mr. Hui, Mr. Chan therefore asked the Applicant to give him a quotation for sub-contracting the job.  According to Mr. Chan, this was only a pretence on his part as he had already decided to sub-contract the job to Mr. Hui.  The Applicant was not to be engaged for the job in any event.

21.  Having looked around the Site, the Applicant wanted to take a closer look at the Site before giving Mr. Chan the quotation.  Instead of waiting for the quotation from the Applicant, Mr. Chan left the Site for another site in order to fetch some equipment.  Mr. Chan intended to obtain the quotation from the Applicant when he returned from the other site later on that morning.

22.  Upon his return to the Site, the Accident had already occurred and the Applicant was attended to by Mr. Hui.  Mr. Chan then drove the Applicant to the Kwong Wah Hospital in his car.

(iv) Mr. Hui’s evidence

23.  According to Mr. Hui’s witness statement (which was adopted as his examination-in-chief), he was offered the job by Mr. Chan over the telephone in the evening of 6 April 2008 without agreeing on the method of payment and the exact amount to be paid for the job.

24.  Mr. Hui went to the Site on the next day, at the Tai Wo Railway Station, he met the Applicant and they went to the Site together by taxi.

25.  He found it strange that the Applicant was also going to the Site as Mr. Chan had already offered the job to him.

26.  Upon their arrival at the Site, they inspected the Site separately.  When Mr. Chan arrived some 15 minutes later, Mr. Hui heard some conversation between Mr. Chan and the Applicant. 

27.  He saw the Applicant climbing up a ladder to the platform.  After the Applicant reached the platform, Mr. Hui took the ladder away as he needed to use it for reaching another platform at the back of the Site.  He asked the Applicant to call him on his mobile phone when the Applicant wanted to use the ladder to get down from the platform.

28.  When Mr. Hui received a call on his mobile phone from the Applicant a little while later, the Applicant had already fallen down from the platform.

Analysis of the evidence

29.  The Applicant appears to me to be a simple and unsophisticated person.His evidence is straight-forward and has a of ring of truth to it.  He was not shaken by Counsel for the Respondents during cross- examination.  Throughout his evidence, the Applicant maintained that he would only go to work at the Site for HK$530 a day, he would not have gone had Mr. Chan not agreed to pay him that sum for a day’s work.  He had no intention to sub-contact the job from Mr. Chan or the Respondents.

30.  On the other hand, I am of the view that there are various aspects of the evidence of Mr. Chan and Mr. Hui that are inherently incredible and I would reject the same on a balance of probabilities.

31.  The claim of Mr. Chan that the Applicant was merely inspecting the Site for the purpose of giving him a quotation for the job as a sub-contactor is simply incredible.

32.  It was the evidence of Mr. Chan that the Applicant had already inspected the Site once at the beginning of March 2008, but the Applicant did not give Mr. Chan a quotation for the job following the said inspection.

33.  For such a simple job, i.e. putting on a new coat of paint and replacing some light fixtures, any experienced decorator would have no difficulty in providing a quotation shortly after inspecting the Site.  It therefore did not make any sense that the Applicant would need, on 7 April 2008, to go to the Site again a few weeks after his initial inspection, and to inspect the Site all over again for the purpose of giving a quotation to Mr. Chan. There is no evidence to demonstrate the necessity for the Applicant to inspect the platform for the purpose of giving a quotation.  The evidence of the Applicant that he was in fact doing part of the job, namely, clearing the fallen leaves and rubbish and washing the platform at the material time, seems to me to be much more probable.

34.  It is even more incredible that any reasonable person would not be specific about his remuneration especially if, on the case of Mr. Chan, the Applicant was asked to give a quotation for sub-contracting the job.The alleged utterance of the Applicant to the effect that “there is not a lot of work left to be done, it is fine to pay me any amount” (「剩番嘅多就唔多，點計都好」) is to me quite unrealistic.

35.  If the Applicant did go to the Site for the second time for the purpose of merely giving a quotation, it would not have taken him a long time to complete the inspection.  There is no good reason why Mr. Chan would not have waited for the Applicant to complete the inspection and to ensure that the Applicant had left the Site before leaving the Site himself.

36.  Further, it was Mr. Hui’s evidence that he took the ladder used by the Applicant in order to reach another platform at the rear of the Site.  He therefore asked the Applicant to call him on his mobile phone when the Applicant required to use the ladder again.  The ladder was a wooden one and it was 7-8 feet long. It did not make any sense for Mr. Hui to take the trouble and time in carrying the ladder back and forth between the front and back of the Site unless Mr. Hui was expecting the Applicant to be working at the platform for a fairly long period of time.This is clearly more consistent with the Applicant actually doing work on the platform rather than merely carrying out an inspection of it.

37.  As stated in paragraph 18 above, it is the Respondents’ case (emerged during cross-examination) that Mr. Chan had already engaged Mr. Hui to sub-contract the job for an agreed sum of HK$15,000 in the evening of 6 April 2008.  This new version of the event is nowhere to be found in Mr. Chan’s witness statement.  Worse still, this new version of the event is in fact contradictory to Mr. Hui’s witness statement (adopted as part of his examination-in-chief).  In paragraph 8 of Mr. Hui’s witness statement, Mr. Hui stated that during the telephone conversation with Mr. Chan on 6 April 2008, he was asked by Mr. Chan what method of remuneration he would be charging. According to Mr. Hui, he answered by saying that he would decide after a site inspection at the Site.  There was certainly no mention of Mr. Chan having awarded the job there and then to Mr. Hui, or that the agreed cost was HK$15,000.

38.  Mr. Hui was unable to offer any explanation to the Court regarding the apparent inconsistencies between his evidence in Court during cross-examination and paragraph 8 of his witness statement.

39.  Had Mr. Hui been given the sub-contact of the job from Mr. Chan, when it was discovered that the Applicant was travelling in the same taxi with him to the Site to do the same job, it was inexplicable that Mr. Hui did not inform the Applicant immediately that there was no job available at the Site for the Applicant.  Instead, Mr. Hui only found the situation “strange”. Likewise, there was no evidence to suggest that Mr. Hui asked, challenged or complained to Mr. Chan about the presence of the Applicant at the Site when he met Mr. Chan at the Site in the morning of 7 April 2008.

40.  I find that Mr. Hui is not a reliable witness.He has been working for Mr. Chan from time to time and his last job for Mr. Chan was only six months ago.  In the circumstances, Mr. Hui cannot be considered to be a truly independent witness.  I attach little weight to his evidence.

41.  Having considered all the evidence in this case, I am of the view that the Applicant’s version of the event is much more probable to be true.  It is much more likely than not that both Mr. Hui and the Applicant went to the Site on 7 April 2008 to work as employees of the Respondents.

42.  Mr. Hon in his closing submissions submitted that the Respondents were, to all intent and purposes, a middleman who made their living on profit margins.  It would be against all common sense for the Respondents not to agree, or at the very least discuss, on a fixed sum or a cap.  The Respondents would not have agreed to an open ended arrangement whereby the Applicant would simply be paid a fixed daily wage, without specifying or knowing how much work was to be done in a day.  Mr. Hon commented that this is fatal to the Applicant’s case. 

43.  I do not agree.  In paragraph 8 of Mr. Chan’s witness statement, he stated that he had already started working on the Site and completed part of the job.  He estimated that if there were two or three workers working together, the job could be finished within around one week.  He went on further to state that as he knew the owner quite well, there was no fixed deadline to complete the job, it was alright as long as the job was completed within a reasonable time.  Thus, in paragraph 10 of  his witness statement, Mr. Chan stated that the sub-contracting out of the job was only another option that he was considering.  Clearly, the other option was to complete the job by himself, employing one or two extra workers.

44.  In those circumstances, it would not at all be surprising if Mr. Chan was to agree to employ the Applicant to work on a fixed daily wage to assist in completing the job.  The Applicant was an experienced painting worker, in the mind of Mr. Chan, the job was a simple one which could be finished in around one week.

45.  Finally, Mr. Hon submitted that even if the Court finds against the Respondents on the issue of contract, there is no sufficient evidence to suggest that this contractual relationship was one of employment.  Mr. Hon submitted that this is more a case of the Applicant moonlighting whilst being in the employment of others.  The inability on the part of the Respondents to dictate the  dates on which the Applicant was to work for the Respondents is a factor against the existence of an employer/employee relationship between the parties.

46.  Again, I do not agree.  In paragraph 61 of the speech of Ribeiro PJ in Poon Chau Nam v. Yim Siu Cheung (2007) 10 HKCFAR 156, his Lordship stated as follows:-

“61. Little needs to be said regarding the Judge’s suggestion that working for more than one employer on a casual basis made the appellant’s status as an employee questionable. It is in the nature of casual employment that the worker may take up work wherever it can be found, with one or more employers. As we have seen, the [Employees’ Compensation Ordinance] makes provision for compensation to be payable to employees who work on concurrent contracts of employment and in Workmen’s Compensation cases like Perry v. Wright referred to in section E.1 above, such a pattern of work has never been treated as a bar to a claim.”

Conclusion on liability

47.  For the reasons stated above, I find that the Applicant was an employee of the Respondents at the material time of the Accident and the injuries sustained by the Applicant during the Accident arose out of and in the course of the employment with the Respondents.

Assessment of quantum

48.  The Applicant was born on 21 June 1958.  He was aged 49 at the time of the Accident.

49.  The Applicant’s pre-accident average monthly income was HK$9,756.

50.  According to the Certificate of Review of Assessment (Form 9) issued by the Employees’ Compensation (Ordinary Assessment) Board dated 28 April 2010, the Applicant’s loss of earning capacity permanently caused by the injury is assessed to be 3.5%.  According to the same Form 9, the Applicant was certified by the Employees’ Compensation (Ordinary Assessment) Board to be entitled to 645 days of sick leave, namely, between 7 April 2008 to 12 January 2009 and between 21 January 2009 to  13 January 2010.

Section 9 compensation

51.  The compensation for the Applicant’s permanent partial loss of earning capacity pursuant to section 9 is HK$9,756 x 72 x 3.5% = HK$24,585.10

Section 10 compensation

52.  The compensation for the Applicant’s temporary loss of earning capacity pursuant to section 10 is HK$9,756/30 x 645 days x 4/5 = HK$167,803.20.

Section 10A compensation

53.  Section 10A compensation in respect of medical expenses amounts to HK$7,306.

54.  In summary:-

(1)	Section 9 compensation	HK$24,585.10
(2)	Section 10 compensation	HK$167,803.20
(3)	Section 10A compensation	HK$7,306.00
	Total	HK$199,694.30

55.  Interest is allowed at half judgment rate on the above sum from the date of Accident until judgment and thereafter at judgment rate until payment in full.

Conclusion

56.  Compensation is assessed at the sum of HK$199,694.30, the Respondents are to pay such sum together with interest as aforesaid.

57.  I make a cost order nisi that the Respondents do pay to the Applicant the costs of this Application (with certificate for counsel), such costs to be taxed if not agreed.The costs order nisi shall become absolute in the absence of application to vary within 14 days.  The Applicant’s own cost be taxed in accordance with Legal Aid Regulations.