NASEER ALI v. SUN POWER CONTAINER TRANSPORT CO LTD

DCEC 804/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 804 OF 2012

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JUDGMENT

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Background

1.  This is an application for compensation under section 9 (permanent partial incapacity), section 10 (temporary partial incapacity) and section 10A (medical expenses) of the Employee Compensation Ordinance (Cap 282).

2.  The applicant alleged that he was injured on 22 May 2010 while he was being unloaded from a 20^th feet container to the ground by a forklift truck driven by his colleague.  The applicant alleged that at the material time of the accident he was the respondent’s employee and was conducting work for the same.

3.  The respondent denies liability and claims that the applicant has never been in any kind of employee-employer relationship with the respondent.

4.  The applicant acted in person at trial.  Prior to 4 August 2014, he was legally represented under legal aid.

5.  Before the trial started, I had fully explained the trial procedure to the applicant.

The applicant’s case

6.  The applicant gave evidence and also called 4 witnesses.

7.  The applicant is a Pakistanis.  He came to Hong Kong in 1997 and started to work as a general labourer and/or a driver.

8.  The applicant started to work for the respondent as a driver and doing loading and unloading work on 13 May 2010. His working hours were from 8.30 am to 8.00 pm everyday and 26 days per month.  His salary was HK$11,000 per month.

9.  On 22 May 2010, the applicant was asked to assist in the unloading a 20^th feet container together with an Indian co-worker called Laddi, outside Tsing Yip Industrial Building, No 1-33 Cheung Tat Road, Tsing Yi, NT.

10.  Around 5.15 pm, all pallets had been unloaded. Laddi asked the applicant to stand on top of the arms of the forklift truck to lift him down from the back of the container which was about 6 feet from the ground.  The applicant stood on the arms of the forklift truck by his toes and holding on to the front of the forklift truck with his both hands.  When the forklift truck moved backwards away from the container, it jerked and as a result the applicant lost his balance and fell to the ground.  As he fell he put out both his arms to try to break his fall but he landed heavy with his body on his right forearm on the ground and the chik tse fell with him and one edge of the chik tse hit his right arm as it fell onto the ground.  He felt severe pain to his right forearm.

11.  The applicant went to Yan Chai Hospital by taxi alone immediately.  He suffered fracture to his right radial head and was admitted to orthopedic ward and discharged on 24 May 2010.

12.  Employees’ Compensation (Ordinary Assessment) Board assessed the applicant’s loss of earning capacity permanently caused by the injury is 1.5%.

13.  Dr Lee Po Chin, a joint medical expert, opined that the applicant can be able to return to work as driver and his loss of earning capacity is 2%.  Dr Lee also opined that the sick leave granted to the applicant up to 27 October 2010 is reasonable.

14.  The applicant was born on 26January 1980.  He claims for Employees’ Compensation as follows:-

15.  The applicant called 4 witnesses to support his case.  They are: Yasar, Manazer Hussain, Khan Ryasat, and Raja Qaiser Shahzad.

16.  Yasar’s evidence:-

He is a driver and was the applicant‘s roommate from 2004-2010.  He had seen the applicant driving the respondent’s vehicle, but he did not know the full registration of the truck except the number 786.  The truck had the respondent’s name (ie Sun Power) across the top of the driver’s cabin.

17.  When Yasar’s first met the applicant, the applicant told him that he was with the respondent 1-3 days ago.  When they met on the road, they would stop (if possible) and shake hands across the two vehicles.

18.  Manazer’s evidence:-

(1)   He is a driver.  He knew the applicant from Pakistan as they lived in the same region.

(2)   He met the applicant in Kwai Fong Area, but cannot recall the time and date. Manazer saw the applicant loading a truck.  The applicant told him that he was working for the respondent.  He did not notice whether there was any sign or name on the applicant’s truck.

19.  Khan Ryasat’s evidence:-

 Laddi or Tony of the respondent contacted him that they needed a driver, and then he called the applicant and gave him the contact of either Laddi or Tony.  Later, the applicant told him that he had been working for the respondent.

20.  Raja Qaiser Shahzad’s evidence:-

(1) He is a driver.  The applicant had been his flat mate for about 4-5 years.

(2) Applicant told him that he got a job as a driver for the respondent.  After that, he did see the applicant driving the respondent’s truck at the Container Port, Kwai Chung Road.  And he met the applicant driving the respondent’s truck on a road many times.  But he cannot recall the date and time he met the applicant.

(3) After the accident, a friend told him that the applicant got injury at work and was in hospital.

(4) Subsequently, he talked to the applicant over the phone and visited him at the applicant‘s home after his release from hospital.

The respondent’s case

21.  The respondent does not dispute the quantum but dispute the liability.

22.  The respondent called Sekon Parmjit Singh (“Mr Singh”), the manager of the respondent, to give evidence.  Mr Singh has been employed by the respondent since 2003.  Initially, he was employed as a driver; since May 2011, he has been promoted to the position of the manager.

23.  There were 8 employees.  Mr Singh knew every employee.  He confirmed that the applicant had never been employed by the respondent, whether as driver or otherwise, and whether on casual or permanent basis or at all.

24.  In 2010, the respondent rented two warehouses, one was situated at a unit on 15^th Floor of Tsing Yip Industrial Building, and the other one was located in an industrial building in Kwai Tak Street, Kwai Chung, NT.

25.  On 22 May 2010, owing to insufficient space to store all the goods in the warehouse at Kwai Tak Street, the respondent transported some of the goods by a container-truck to the warehouse in Tsing Yip Industrial Building for the purpose of storage. Gurinder Singh was the container–truck driver.  When the container-truck arrived outside Tsing Yip Industrial Building, Mr Singh and his co-worker called Muhammad Idris were responsible for unloading the goods from the container-truck and transporting them to the warehouse on the 15^th Floor.  Gurinder Singh also rendered assistance in unloading the goods and transporting the same to the warehouse.  After all goods were unloaded from the container-truck, they were stacked onto the hand pallet trucks.  Afterwards, they pushed or dragged the hand pallet trucks into the lifts and went up to the 15^th floor.  No accident happened to any of them while they were unloading the goods and/or transporting the same to the warehouse on the 15^th Floor.  Both Gurinder Singh and Idris are still working with the respondent.

26.  Mr Singh confirmed that the respondent had never employed any person(s) called Tony and/or Laddi.  In 2010, Mr Talwuinder Singh was the manager.  He is no longer with the respondent and could not be contacted.  He also confirmed that at the material time of the day in question, the respondent did not own any forklift truck as referred by the applicant.

Issues

27.  The main issues in this case are: (1) was the applicant an employee of the respondent? (2) Was there an accident which took place on 22 May 2010 around 5.15 pm while the applicant was working for the respondent?

Discussion

28.  The burden of proof is on the applicant. The standard of proof is on the balance of probabilities.

29.  There is no dispute as to the applicant’s injury and the findings of all medical reports.  The respondent largely attacked the applicant’s credibility.  The applicant could not produce any document proof as to the employment issue.  According to the applicant’s version, up to the date of the accident, the applicant had just worked for the respondent for 9 days only.  No payment slip, warrant card, name card and MPF documents had been issued to him.

30.  The applicant claims that he was recruited by a South Asian person called Tony who claimed himself as the manager of the respondent.  It was an oral employment agreement.  No one witnessed the recruitment process.  The respondent denied there was a staff called Tony.  At the material time, the manager was Talwuinder Singh who did not have  English name and had never been called Tony.  Talwuinder is no longer with the respondent and cannot be contacted now.

31.  The applicant’s witnesses’ evidence could not help applicant’s case.  None of them had witnessed the accident.  Their knowledge about the applicant’s employment was largely and at most hearsay and far from substantive.

32.  The main issue in this case is whether the applicant is a credible and reliable witness.

33.  In the case of Lee Fu Wing & Anor v  Yan Paul Po Ting [2009] 5 HKLRD 513, Deputy High Court Judge Au (as he then was) set out the following considerations of which the court should consider when assessing the credibility of a party’s case at para 53:-

(1) whether the party’s case is inherently plausible or implausible;

(2) whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3) whether it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests.  This is relevant to the assessment of his overall credibility;

(4) the demeanour of the witness.

34.  I note that the applicant’s evidence in relation to the date, location and particulars of the accident are always switched at different stage and also contradicted with his witness, Muhammad Salamat, who gave a statement to the applicant’s solicitors on 19 October 2010.

35.  Date, location and particular of accident are material and substantial in this case. Mr Sze counsel for the respondent  correctly summarized their differences as follows:-

(a) Date of accident

Date	Occasion/document	Alleged date of accident
26 July 2010	Witness statement annexed to the Notification of Accident (Trial Bundle p 126)	21 May 2010
3 August 2010	Notification of Accident (Trial Bundle p 123)	21 May 2010
19 October 2010	Witness statement of Muhammad Salamat (Trial Bundle p 130)	21 May 2010
23 November 2011	Letter of Legal Aid	22 May 2010
20 August 2012	Amended Application	22 May 2010
6 December 2012	Applicant’s Witness Statement (Trial Bundle p 36)	22 May 2010
21-22 August 2014	Court testimony	Not sure whether it was 21 or 22 May 2010

(b) Location of accident

Date	Document/Testimony	Alleged location of accident
26 July 2010	Witness statement annexed to the Notification of Accident (Trial Bundle p 126)	Tsing Yi Container Terminal
3 August 2010	Notification of Accident (Trial Bundle p 123)	Tsing Yi Container Terminal
19 October 2010	Witness statement of Muhammad Salamat (Trial Bundle p 130)	Tsing Yi Container Terminal
10 May 2012 23 November 2011	Application	Tsing Yi Container Terminal
20 August 2012	Amended Application	Outside Tsing Yi Industrial Building
6 December 2012	Applicant’s Witness Statement (Trial Bundle p 36)	Outside Tsing Yi Industrial Building
21-22 August 2014	Court testimony	Explained that his second lawyer (Lo, Wong & Tsui) was also at fault in filing the first Application with the wrong location

(c) Particulars of accident

- At Tsing Yi Container Terminal
- Accompanied by one co-worker: Laddi
- At around 5:15 pm, while the applicant was pulling out 11 out of 12 pallets he was asked by Laddi to stand on the last pallet and together with pallet and the applicant would be unloaded from the forklift truck
- At Tsing Yi Container Terminal
- 2 men were seen taking pallets out of their truck
- At around 3:15 pm, the applicant was seen to have fallen off his truck
- Mohammed’s colleague helped applicant off the ground and sent him to a taxi

Date	Document/Testimony	Particulars of accident
26 July 2010	Witness statement annexed to the Notification of Accident (Trial Bundle p 126)	- 21 May 2010
19 October 2010	Witness statement of Muhammad Salamat (Trial Bundle p 130)	- 21 May 2010
20 August 2012	Amended Application	- At around 5:15 pm, all 12 pallets had been unloaded before the applicant was asked to stand on the forklift truck by his co-worker.
6 December 2012	Applicant’s Witness Statement	- On 22 May 2010, the applicant was instructed to assist in the unloading a 20th feet container together with an Indian co-worker: Laddi - At around 5:15 pm, all 12 pallets had been unloaded before the applicant was asked to stand on the forklift truck by his co-worker, Laddi.
21-22 August 2014	Court testimony	- Including the applicant, there were two other colleagues instructed to do the work: Laddi and Ma Ma - Ma Ma was responsible for pulling the unloaded pallets into the building - After the last pallet was unloaded, Laddi asked the applicant to stand on the forklift truck.

36.  The date of accident is material in this case.  There is no reason why the applicant made such big mistake.  According to his own version, the accident took place 9 days after he started to work for the respondent.  His first witness statement (Trial Bundle p 129) was assisted by his lawyer’s clerk and it was given two months after the accident.  All the particulars of the accident should be still fresh in his memory.  Surprisingly and coincidently, his witness Mr Muhammad Salamat who gave statement to Labour Department but was not called to give evidence made the same mistake too in his statement (Trial Bundle p 131).  Mr Muhammad was the eye-witness to the accident.

37.  The applicant had not amended this error until he notified the Legal Aid Department on 23 November 2011.  It is quite clear that the amendment was due to the record of Yan Chai Hospital (Trial Bundle p 71 – p 93).  All these records showed that the applicant attended Yan Chai Hospital on 22 May 2010.  It is acceptable if the applicant’s mistake was due to careless and oversight, but  it is not in this case. According to the discharge summary given by Dr Ching Cheuk of Yan Chai Hospital, under the head of “Discharge Note”, it was stated specifically that the applicant was injured on 21 May 2010 (Trial Bundle p 78).  In other words, there may be two versions, one is that the applicant got injury on 21^st, but went to Yan Chai Hospital on 22^nd; the other version is the applicant told a lie to Dr Ching.  The applicant could not give a satisfactory answer on why he told Dr Ching he got injury on 21^st.  If the date of accident was on 21^st, why did the applicant go to the hospital next day?  His injury was fracture to his right radical head which would cause great pain to him.  There was no reason he should not consult a doctor immediately.

38.  Regarding to different locations of the accident, the applicant could not give a satisfactory explanation too.  Tsing Yi Container Terminal and Tsing Yip Industrial Building are two entirely different places with entirely different environments.  Prior to the accident, the applicant had been a driver for other companies for a long time.  He must be an experienced driver.  He could not make this simple and silly mistake. According to the respondent’s evidence, the respondent rented two warehouses, one was situated at Tsing Yip Industrial Building, but none of them was located in Tsing Yi Container Terminal.  The applicant put all the blame on his two previous lawyers represented him for this application.  He claimed that his first lawyer committed many errors and his second lawyer requested him to amend them.  However, his second lawyer (Lo Wong & Tsui) also stated that the location of the accident stated in the original application was Tsing Yi Container Terminal.  More importantly, all these documents bearing the statement of truth signed by the applicant  had been fully read and translated in Punjabi  to the applicant before they were filed to the court.  I do not accept the applicant’s explanation.

39.  Regarding to the particulars of accident, the applicant’s explanation as to why there were many inconsistencies is probably due to his severe pain following the accident that caused his loss of memory, which became worse in 2012.  But Dr Lee Po Chin, the jointly appointed expert, did not mention the applicant had any symptom of memory loss at all.  The applicant admitted that he did not tell Dr Lee because it did not come to his mind during the medical examination.  I find the applicant’s explanation is far from acceptable.  Furthermore, during cross-examination, it was the first time the applicant mentioned that there was another colleague called ‘Ma Ma’ working with him.  Laddi and Ma Ma are important witnesses but they were not called to give witness statements nor attended the court to testify.

40.  The applicant’s demeanor in court cast doubts on his truthfulness.  He always switched back and forth among his answers until he finally realized what words were the best to advance his case. For instance, the applicant first affirmed that the notification of accident and the annexed witness statement were translated and explained to him.  However, when the issues within the notification and the annexed witness statements were put to him, the applicant changed his previous answer claiming that they in fact were not fully translated to him and he was simply asked to put his name on them.  When the applicant was challenged as to his inconsistencies in a number of times, he would put forward explanations that were not just fresh and cast further inconsistencies, but were also frivolous and inherently improbable.

41.  The applicant’s witnesses testifying in the court room were of little value to his case.  None of them witnessed the accident.  At the most, they could only testify that they saw the applicant’s driving the respondent’s vehicle.  Some evidence are ridiculer and unbelievable, e.g. When they met on the road, they would stop (if possible) and shake hands across the two vehicles.

42.  All in all, having fully considered the applicant’s evidence, I find that the applicant is not a truthful and credible witness.  The applicant’s case is inherently implausible and contradicted by other evidence.

43.  Mr Singh, the respondent’s witness, gave evidence firmly and his evidence remain consistent even he was challenged by the applicant about the forklift issue.  There were 8 staff with respondent, Mr Singh knew all of them and confirmed that the applicant has never been employed by the respondent.  I note that Mr Singh was not the manager in 2010, but the manager at the material time was not called Tony either. The manager was an Indian and was called Talwuinder Singh.  Talwuinder Singh had left the company and could not be contacted at all.  I find Mr Singh is an honest and reliable witness and accept his evidence.

Conclusion

44.  I accept all medical findings about the applicant’s injury and also the sick leaves granted to the applicant are reasonable and necessary.

45.  As the respondent does not dispute the quantum, I also accept the applicant’s monthly earnings under s 11 of Employees Compensation Ordinance is HK$11,000.  If the applicant could prove his case successfully, a sum of HK$68,100 plus interest at half judgment rate from the date of accident should be awarded to him.

46.  Having carefully considered the applicant’s case, I find that the applicant failed to prove that he was an employee of the respondent and his injury on his forearm as found in Yan Chai Hospital on 22 May 2010 was related to the course of employment with the respondent.

47.  The applicant’s claim against the respondent is unsuccessful.

Order

48.  The applicant’s claim herein is dismissed.

49.  I make an order nisi that costs of this action be to the respondent, to be taxed if not agreed, with certificate for counsel.  The order nisi shall become absolute upon the expiration of 14 days in the absence of any application to vary the same.