CHEN BIJUN v. SO YEE CHUN

HCPI 110/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 110 OF 2015

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J U D G M E N T

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1.  The plaintiff Chen Bijun (“P”) claims damages against the defendant So Yee Chun (“D”) for personal injuries sustained by him on 17 July 2013 whilst working as a painter doing renovation works at Flat B, 4/F, Block 10, Braemar Hill Mansions, 31, Braemar Hill Road, North Point, Hong Kong (“the premises”).

2.  D was hired by the owner of the premises Chao Chung Yo (“Chao”) to do the interior renovation works at the premises.

3.  The undisputed evidence is that on 17 July 2013 at around noon P was injured when he fell off a wooden ladder (“the ladder”) whilst he was doing touch up work at the outside entrance of the premises. There had been a shoe cabinet there which had been removed during the renovation works and some holes had been left on the wall.  P was doing touch up work there on 17 July 2013 and fell off the ladder.  Apparently, the string joining the two sides of the ladder together broke causing P to fall onto the ground.

4.  Both Chao and D were inside the premises at the time.  The main door to the premises was not shut.  Chao heard a sound and both he and D went outside to check what had happened outside the premises.  They saw P lying on the ground and he had a brief loss of consciousness.  Chao called 999 and shortly thereafter the police and an ambulance arrived at the premises.

5.  P was sent to the Accident & Emergency Department of Pamela Youde Nethersole Eastern Hospital (“the hospital”) for chest wall contusion.  P had landed on his chest when he fell.  Physical examination showed tenderness over bilateral anterior chest wall.  X‑ray revealed fractured left 3^rd rib and mild cortical buckling over right 6^th rib.  He was referred to the Surgical ward for further management.  He was discharged from the hospital on 19 July 2013.

6.  The above facts are undisputed and I find them proved.

7.  I shall deal further with P’s injuries when considering the question of quantum.

8.  Mr Lee, for P, informed the court that P had instituted employees’ compensation proceedings (“the ECC claim”) against D on 12 May 2014 in the District Court but that the ECC claim has been stayed by a master pending the determination of P’s claims in this common law action for damages.

9.  The questions of liability and the quantum of damages are in issue between the parties.

LIABILITY

10.  P’s case is that he was directly employed by D as a painter–cum–plasterer to work at the premises and that he was injured in the course of his employment with D.

11.  P’s case is that he was injured as a result of D being in breach of his common law duty of care under the contract of employment he had with D as well as being in breach of statutory duties as pleaded in the statement of claim.  Additionally, P claims that the ladder from which he fell off on 17 July 2013 was supplied by D.  P claims that the ladder was defective and unsafe and that D is liable to him for negligently supplying him with the ladder.

12.  D emphatically denies that P was his employee. His case is that P was hired by him as a sub‑contractor to do the painting works for the interior renovation works at the premises.

THE ISSUES

13.  As Mr Lee submitted, the issues on liability are:

(1) Whether P was D’s employee at the time of the accident;

(2) Whether D had provided the ladder to P at the time of the accident; and

(3) Whether D was in breach of his common law duty of care, statutory duties and implied duties under the contract of employment.

14.  As to issue (1), the crucial question for the Court to consider is whether P was D’s employee at the time of the accident or whether P was a sub‑contractor hired by D.

15.  As to issue (2), Mr Lee submitted that even if it were found that P was not the employee of D, D could still be liable to P for negligence if he had provided the defective and unsafe ladder for P to use because that would be an independent negligent act on the part of D, irrespective of his relationship with P.

16.  As Mr Lee accepted, issue (3) only arises if it is found that P was in fact D’s employee at the time of the accident.

17.  In Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 the court was dealing with an employee’s compensation claim and considered the definition of “employee” under section 2(1) of the Employees’Compensation Ordinance (Cap 282).

18.  After reviewing the relevant authorities, Ribeiro PJ said at para 18:

“18. The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developedin the abovementioned case‑law with a view to deciding whether, as a matter of overall impression, the relationship is one of employment, bearing in mind the purpose for which the question is asked. It involves a nuanced and not a mechanical approach, as Mummery J emphasised in Hall v Lorimer 26 (in a passage approved by the English Court of Appeal 27):

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

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²⁶  [1992] 1 WLR 939 at p.944.

²⁷  [1994] 1 WLR 209 at p.216 (CA).

19.  The question of whether or not the work performed by P was performed in the capacity of an employee or as a sub‑contractor of D is a question of fact.

THE WITNESSES

20.  I heard evidence from P and D.

21.  I also heard evidence from D’s witnesses namely, Ng Fun Yin, Ng Hui Chun, Yip Kwong Sang, Wong Ming Biu and Chao.

22.  Chao is and was the owner of the premises at all material times.

23.  The undisputed evidence is that for the renovation works at the premises D hired a number of sub‑contractors to carry out different aspects of the renovation works.

24.  Ng Fun Yin was the responsible person of Hang Cheong Aluminium Engineering Co which carried out the aluminium window and glass works at the premises.

25.  Ng Hui Chun was the responsible person of Luen Yip Air‑Conditioning Electric & Water Engineering Co which carried out the plumbing, electrical and air‑conditioning works at the premises.

26.  Yip Kwong Sang carried out the wooden door works at the premises.

27.  Wong Ming Biu carried out the plastering and masonry works at the premises.

THE EVIDENCE AND FINDINGS

28.  The undisputed evidence is that Chao hired D to do the interior renovation works at the premises which Chao had purchased.  He had previously entrusted D since about 1998 with a number of interior renovation projects in respect of other properties that Chao had purchased for investment.  Chao was to live at the premises after the completion of the interior renovation works.

29.  D is about 68 years old and had retired a few years prior to 17 July 2013 when the accident happened.  On his evidence, which I accept, he had retired in about 2008.  Since his retirement, D had only done renovation works for his relatives, friends and clients that he had served for a long time, like Chao.  This is undisputed.

30.  Both Chao and D said, and I accept and find, that Chao agreed to pay D a total sum of $800,000 for the renovation works at the premises.  On the undisputed evidence, Chao paid D in two instalments, the first in thesum of $500,000 and the second in the sum of $300,000 upon completion.

31.  There is no dispute that the renovation works started on or about 15 April 2013 and was completed in July 2013 although it is not clear exactly when the works started.  On the evidence of D, which I accept, I find that the actual works commenced around the end of April 2013.  As D said, there was some preparation work that had to be done before the actual commencement of the works, including obtaining the approval for the commencement of the works from the management office of Braemar Hill Mansions which was required before the renovation works at the premises could be carried out.

32. There is a dispute of fact as to whether the renovation works had been fully completed by 17 July 2013.

33.  D said that there was no work required to be done on 17 July 2013 when P fell off the ladder as the works had been fully completed on 10 July 2013.

34.  P, however, said that on 17 July 2013 he was doing touch up painting work on the wall and the ceiling at the outside entrance of the premises where holes had been left when the shoe cabinet that was previously there had been removed.  P said that he was instructed by D to do the touch up works there.

35.  I believe P and accept his evidence that at the time of the accident on 17 July 2013 he was doing touch up work on the wall and ceiling at the outside entrance of the premises.  I also believe P and accept his evidence that he had been instructed by D to do the touch up work there.  On this dispute of fact, I prefer the evidence of P, which I accept, to the evidence of D, which I reject.  I accept that the renovation works had been substantially completed by 10 July 2013, but I find that there was follow up work that was required to be done, such as touch up painting on the wall where holes had been left by the nails when the shoe cabinet had been removed from the outside entrance of the premises.

36.  As I have said, it is P’s case that he was a direct employee of D and not a sub‑contractor.

37.  P said that he first met D in 2002 and knew that he was a renovation contractor.  According to P, he first worked for D as an employee on a short term basis from time to time.

38.  P’s evidence was that over the period from April to July 2013 he worked on a number of different flats for D and that he received a total sum of over $60,000 from D.  P’s evidence was that he was a casual worker employed by D and that D had agreed to pay him wages at $1,000 per day.

39.  D gave evidence that P had given him a verbal quotation of $80,000 for 80 days’ work for the painting works at the premises and that he accepted P’s quotation.

40.  P also said that he did not employ any workers to assist him and that he did not and could not recruit others to complete his work.  He said that his working hours were decided and arranged by D.  His working hours were fixed from 9 am to 6 pm from Monday to Saturday and that if requested by D, he might work on a Sunday or public holiday.  He also said that he was not permitted by D to work for other employers during the period that he was hired by D.

41.  It was, however, clear on the evidence that P did not go to work every day at the premises.  He also took some time off during the period of the renovation works to visit his hometown in the Mainland.  However, P said that if he went to work late or left work earlier, he wouldhave to give notice to D.

42.  P also said that he was not responsible to bring or supply any tools or equipment for the painting work that he did at the premises as these were all supplied by D.  He also said that the ladder from which he fell off on 17 July 2013 and which he had used at the premises was supplied by P.  P also said that he had been using two worn out ladders while working at the premises which had been supplied by D.  He added that he had requested P to provide him with a new ladder but that D had told him that he would buy a new ladder after completion of the renovation works at the premises.

43.  D denied emphatically that P was ever his employee.  D’s evidence was that as a contractor for renovation works, he would sub‑contract different parts of the work to sub‑contractors and supervise them to ensure the quality of the work in a timely fashion.  He said that he did not need to and did not employ any workers of his own to work for him.

44.  D said that, apart from supplying the paint to be used at the premises, he did not supply any of the tools or equipment or the ladder to P.

45.  There is no dispute that D knew Chao for about 20 years and had worked for him on a number of different projects.  The undisputed evidence is that Chao contacted D in about April 2013 to ask him to do the renovation works at the premises.  D agreed to do so.  D in turn contacted and hired different sub‑contractors for different parts of the renovation works.  He listed the different sub‑contractors in Annexure 1 to his witness statement which stood as his evidence in chief.  On D’s evidence, P was one such sub‑contractor responsible for the painting works in the premises.

46.  Apart from there being a dispute of fact as to whether P was an employee or sub‑contractor, there is no dispute that the persons, other than P, mentioned in Annexure 1 to D’s witness statement were hired by D as his sub‑contractors for the renovation works.  I so find.

47.  D’s evidence was that when he hired P he told him that he was going to sub‑contract the painting works at the premises to him.

48.  I would observe that in the re‑examination of P when his counsel asked him whether D had said to him that he was sub‑contracting the works to him, P at first said yes, but then later changed his evidence and denied that was ever said by D.

49.  On this dispute of fact, I prefer the evidence of D, which I accept, to the evidence of P, which I reject.  I find that D told P when hiring him that P was hired as D’s sub‑contractor for the painting works at the premises.

50.  There was also another painter Wong Wai Pun (“Ah Pun”) who did painting works at the premises during the period of the renovation works.

51.  P said that Ah Pun was also an employee of D.  D’s evidence was that Ah Pun was not his employee but that he was employed by P as P’s employee.

52.  On this dispute of fact, I prefer the evidence of D, which I accept, to the evidence of P, which I reject.

53.  Ah Pun would have been an important witness for P to call.  Ah Pun in fact made a witness statement but P did not call him to give evidence.  The explanation P gave for not calling Ah Pun to give evidence was that Ah Pun was unwilling to testify for him as he did not wish other contractors to know that he came to court to give evidence against a contractor.  He said that it was possible that other contractors may not hire him in future if he testified.

54.  The explanation given by P for not calling Ah Pun to give evidence is, in my view, unconvincing and unsatisfactory.  I do not believeP on this matter.  Ah Pun had no difficulty in making a witness statement to P’s solicitors.  He must have known that his witness statement would be supplied to D.

55.  In my view, there is no satisfactory explanation given by P for not calling Ah Pun.  It does not appear that P’s solicitors ever issued and served a subpoena on Ah Pun for him to appear and to give evidence at trial.

56.  In my view, an adverse inference can and should be drawn that if Ah Pun had been called to give evidence, his evidence would not have supported P’s case (see the observations of Le Pichon JA in Li Sau Keung v Maxcredit Engineering Ltd & Another [2004] 1 HKC 434 at 443 – 444).

57.  The witness Ng Fun Yin was the responsible person of Hang Cheong Aluminium Engineering Co Ltd, the sub‑contractor hired by D to do the aluminium window and glass works at the premises.  He has known D for over 20 years.  Ng Fun Yin’s observation and understanding was that D did not employ any of the renovation workers to work at the premises.  Ng Fun Yin also said that he did employ his own workers to do the works.

58.  Ng Fun Yin said that he was paid after completion of the works and that he did not require D to make a payment to him in advance.  His impression was that all the other workers were all working for sub‑contractors.  He said he did not receive a reward or tips or bonus for good and timely performance of the works.  He said that after completionof the works he did not receive anything extra other than what was quoted.

59.  The witness Ng Hui Chun was the sub‑contractor hired by D to do the plumbing, electrical and air‑conditioning works at the premises.  He has known D for nearly 20 years.  It was also his impression that P did not hire any employees to do any part of the renovation works.  His recollection was that he would not require payment in advance.  ‌Ng Hui Chun also hired his own workers to do the works at the premises that were sub‑contracted to him by D.

60.  Ng Hui Chun gave unchallenged evidence that whilst he was working at the premises he saw P sometimes arrived to work at the premiseslater than the usual time of 9 am or 9:30 am.  He said that P sometimes arrived after 10 am and sometimes even at 11 am.  He said that on occasionsP also left early as he left the premises before 5 pm.  It was also his evidence that at times P did not turn up for work at the premises for more than a week.

61.  P said that he notified D when he was going to arrive late or leave early and also when he would take leave and go back to his hometown in the Mainland.  D denied this in evidence.  On this dispute of fact, I prefer the evidence of D, whose evidence I believe and accept, to the evidence of P, whose evidence I disbelieve and reject.

62.  Ng Hui Chun also gave evidence that he did receive a sum of about $2,000 from D as a bonus or tea money after completion of the sub‑contracted works for good and timely performance of the works.  I believe him.

63.  The witness Yip Kwong Sang was the sub‑contractor hired by D to do the wooden door works.  He has known D for over 10 years.  It was also his impression that D did not employ any of the renovation workers to work at the premises.  His impression was that P was not D’s employee but a sub‑contractor but he accepted that he did not actually know the relationship between P and D.

64.  It was also Yip Kwong Sang’s evidence that he did not require an advance payment for the works sub‑contracted to him and that he was paid only after completion of the works.

65.  Yip Kwong Sang also gave evidence that after completion of the sub‑contracted works at the premises D did give him around $1,000 to $2,000 as tea money. This was extra money given to him by D which he said was given to him every time he finished a project for D.  He said that the amount given was sometimes less and sometimes more and it ranged fromabout $1,000 to $2,000.  I believe him.  I find that Yip Kwong Sang alsoreceived from D some extra money at the completion of the sub‑contracted works in the sum of around $1,000 to $2,000.

66.  The witness Wong Ming Biu was the sub‑contractor hired by D to do the plastering and masonry works at the premises.  He has known D for about 20 years. He said that he did not require advance payment from D and that he would be paid after completion of the works.

67.  Wong Ming Biu also gave evidence that he saw P and another painter doing the painting works at the premises.  His impression was that D did not employ workers to work for him but he also said that he did not actually know the relationship between P and the D.

68.  Wong Ming Biu said that he did not receive any bonus or reward from D for good and timely performance.

69.  Chao gave evidence that he did see P at the premises whom he knew to be the contractor doing the painting works at the premises.  He had met P previously when P also worked in another property of Chao.  Chao said that he provided the colour sample of the paint to D but that he did not supply the paint or the tools that was used by P for the painting works.  I believe him and accept his evidence.

70.  Chao also gave evidence that he saw D give an advance payment to P and some of the other sub‑contractors.  I believe him.

71.  Although Chao could not remember the exact date when he saw D give advance payments to some of the sub‑contractors, he said that he recalled that on the occasion that he saw D give P an advance payment in cash of $1,000 bills, D also paid the electrical sub‑contractor and the masonry sub‑contractor.  The electrical sub‑contractor was Ng Hui Chun and the mansonry sub‑contractor was Wong Ming Biu.  However, both Ng Hui Chun and Wong Ming Biu said that they did not require advance payment from D.  It seems to me that Ng Hui Chun and Wong Ming Biu may be mistaken in their recollection of whether they received any advance payment.  Chao was clear in his recollection of these matters.  I accept and prefer his evidence to the evidence of Ng Hin Chun and Wong Ming Bun on this matter.  In my view, it is unlikely that the sub‑contractors would carry out the works without some advance payment being made to them.

72.  I find, as a fact, that, as observed by Chao around the time when the work commenced at the premises, D did give some advance payment in cash to P although, as Chao said, he did not know whether it was a deposit payment.  Chao was sure that P was paid in cash by D on that occasion but he did not know how much he was actually paid by D on that occasion.  D gave evidence that he paid P the sum of $19,000 on 29 April 2013.  This was denied by P.  P said that the first instalment of $20,000 was paid to him much later and only on 18 June 2013.  On this dispute of fact, I prefer the evidence of D, which I accept, to the evidence of P, which I reject. I believe D and disbelieve P on this matter.

73.  I also bear in mind that P said that he was not paid by D daily or at regular intervals.  He said that for the work that he did at the premises he was paid in two instalments by D.  In re‑examination, P said that thefirst instalment was paid to him on 18 June 2013 when he received $20,000from P.  The second instalment was when he received $21,000 from D on19 July 2013.  In re‑examination he also said that he received a further sumof $3,000 on 19 July 2013 from D so that he could go back to his hometown to take a rest after his discharge from hospital.  That was his explanation for the total sum of $24,000 which he said he received from D on 19 July 2013.  When it was pointed out to P that in his witness statement he mentioned that he received $24,000 on 19 July 2013 as salary, he tried to explain the discrepancy by saying that he lumped the sum of $21,000 salary and the sum of $3,000 gratuitous payment that D gave him on the same occasion.  I would observe that he clearly said in his witness statement that the whole sum of $24,000 he received on 19 July 2013 was the balance of the salary that he had received from P.  P was evasive when giving evidence on this matter.

74.  I would also observe that P’s evidence is that he only received the first instalment of his salary for the works at the premises on 18 June 2013in the sum of $20,000.  In my view, it is inconceivable that, if he were truly a casual worker and an employee of D, he would have waited until 18 June 2013 to get the first instalment of his wages bearing in mind that he started work at the premises towards the end of April 2013.

75.  The evidence of D, which I accept, is that he paid P the amount he quoted verbally namely, $80,000 for 80 days’ work at $1,000 per day.  His evidence was that he paid him the following sums in cash:

(1) on or about 29 April 2013, the sum of $19,000;

(2) on or about 18 May 2013, the sum of $20,000; and

(3) on or about 19 July 2013, the sum of $20,000.

76.  D said that after P was discharged from hospital he requested D to help him pay Ah Pun the sum of $23,000 as P was going to the Mainland and would not meet Ah Pun.  D agreed to do so and on 24 July 2013 D gave a cheque to Ah Pun for that amount with the payee left in blank.  D said that he asked Ah Pun to pass the cheque to P.  D recorded on the counterfoil of the cheque in his cheque book the name of Ah Pun.  Ah Pun filled in his name on the cheque which was presented for payment.

77.  D also said that on 19 July 2013 he gave a further sum of $2,000 to P as gratuitous payment.  I would observe that there is no dispute that P did receive some gratuitous payment from D on or about 19 July 2013 although P said that it was $3,000 whereas D said that it was $2,000.

78.  D said that he paid a total of $82,000 for the works carried out by P as his sub‑contractor ($19,000 + $20,000 + $20,000 + $23,000).  He paid him $2,000 more than the agreed sum of $80,000 as he gave him the $2,000 as tips or bonus after the completion of the works.  I believe D and accept his evidence.

79.  Both Ng Hui Chun and Yip Kwong Sang gave evidence that they each received something extra as tips or bonus at the completion ofthe works.  I bear in mind that both Ng Fun Yin and Wong Ming Biu saidthat they did not receive any tips or bonus from D.  It seems to me that D did give tips or bonus to some of his sub‑contractors. I believe D when he said that he gave the extra sum of $2,000 to P after the completion of the works.  I so find.  It is unlikely, in my view, that he would have given P anything extra if he were his employee rather than a sub‑contractor.

80.  I prefer the evidence of D, which I accept, and find that he paid P a total sum of $82,000 for 80 days’ work and the extra sum of $2,000 being the gratuitous payment given to P on 19 July 2013.

81.  Mr Lee relied heavily on the entry in the notebook of PC 12286 (“the policeman”) who arrived at the premises after the 999 call was made by Chao on 17 July 2013 following the fall by P.  This was a post entryrecord made by the policeman.  D was described by the policeman as P’scolleague.  It is also recorded there “Employer Yee Hing Renovation”.  The word “Employer” was written in English whereas Yee Hing Renovation (“Yee Hing”) was written in Chinese.  Mr Lee relied on this entry as showing that P was employed by D.  Yee Hing was a business name used by D which D said he had used in the past.

82.  In my view, the entry in the police notebook is not a record of a clear and unequivocal admission on the part of D that P was an employee of Yee Hing or of D.  I would add that it was no part of P’s case that he was employed by Yee Hing.  It was P’s evidence that he was employed by D.  He has never mentioned that his employer was Yee Hing.  It is highly unlikely that either D or Chao would have spoken to the policeman in English.  The notebook does not record who informed the policeman of Yee Hing and what was actually said in Chinese for the policeman to write the word “Employer” in English.  The notebook entry also records that “Inft (flat owner) [Chao]” which seems to suggest that the informant was Chao.

83.  I bear in mind that both D and Chao said that they did not hear Yee Hing being mentioned to the policeman at the time.  Both D andChao denied that they told the policeman that P was employed by Yee Hing.

84.  However, Chao said in evidence that he knew that Yee Hing was a business name which appeared on D’s business card but that he always paid D in his personal name and not in the name of Yee Hing.  I believe him.

85.  I find that it must have been either D or Chao who mentioned the name Yee Hing to the policeman at the time when he attended the premises after the 999 call.

86.  I accept that the entry in the policeman’s notebook is admissible as hearsay evidence under section 47 of the Evidence Ordinance (Cap 8) as submitted by Mr Lee.  However, it is not clear what it is evidence of.

87.  The question as to what weight if any, ought to be placed on the hearsay evidence is another matter.

88.  Section 49 of the Evidence Ordinance sets out the considerations the court shall have regard to in estimating what weight if any, is to be given to hearsay evidence.  Section 49 provides:

“(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purposes of subsection (1), regard may be had, in particular, to the following–

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g) whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.”

89.  In considering the matters set out in section 49(2) above, it seems to me that it would have been reasonable and practicable for P to havecalled the policeman to give evidence as to the entry he made.  It does not appear that P’s solicitors made any enquiries as to who said what to the policeman.  In my view, P’s solicitors should have called the policeman to give evidence if they wished to rely on the entry in support of P’s case that he was an employee rather than a sub‑contractor. There is no evidence that D made an admission to the policeman that P was employed by Yee Hing.  As I have said, the entry does not show that there was a clear and unequivocal admission made by D that P was employed by Yee Hing.

90.  I accept that the entry was made shortly after the events recorded in the notebook and that it probably does not involve multiple hearsay.  The policeman obviously did not have any motive to conceal or misrepresent matters.  However, it is clear that the statements in the entry was an edited account of the conversations the policeman had at the premises with Chao and D.

91.  I accept also that the circumstances in which the evidence is adduced as hearsay are not such as to suggest an attempt to prevent the proper evaluation of its weight.

92.  I am of the view that in the circumstances not much weight can be placed on the words “Employer Yee Hing” recorded in the notebook.  The entry does not assist P in establishing that P was in fact an employee of D.

93.  I would observe that P’s evidence was that he worked at the premises from 30 May to 18 June 2013 and then from 9 to 17 July 2013.  Hedid not work at the premises in the period from 18 June 2013 to 9 July 2013which was a period of about 3 weeks.  His evidence was that sometimes he rested.  He also said that he did not go to work at the premises duringthat period of about 3 weeks.  There is no satisfactory explanation for hisabsence for such a long period.  If he were a casual worker and an employee of D, it is, in my view, unlikely that he would have been permitted to take about 3 weeks off work during that period.  However, as a sub‑contractrorhe was free to come and go as he liked provided the works were completed on time.

94.  In his notification of accident form (“the form”) which P filled in and signed on 30 September 2013 for submission to the Employees Compensation Division of the Labour Department, P described Chao as his employer and filled in Chao’s name and address in the form as the name and address of his employer.  He filled in D’s name as the name of the principal contractor.  D’s case is that he was in fact the principal contractor with P being one of his sub‑contractors for the works at the premises.

95.  P said that when he went up to the Labour Department later on 24 October 2013 to enquire about the progress of his claim, he was askedquestions which he answered and he was then told that he had filled in the name of his employer wrongly.  He was given another appointment with them for 22 November 2013.  The name of his employer was changed from Chao to D.

96.  In evidence P was evasive when giving his explanation as to why he had put down the name of Chao as his employer in the form in the first place.  His explanation was that he thought that by the term ‘employer’in the form it meant the person who paid the money.  Therefore, he thought that it meant the owner of the premises.  I do not believe him.  He said in evidence that he had known all along that D was his employer and if that is right, I find it inconceivable that he would have misunderstood what the word ‘employer’ meant in the form.

97.  P also said that it was only subsequently when he made enquires about his claim with the Labour Department that he learnt that his employer should be D and not Chao.  This also contradicts his earlier evidence that all along he knew that D was his employer.

98.  As I have said, he was evasive when giving evidence on these matters and I do not believe him.

99.  D gave evidence that when he accompanied P on his discharge from hospital on 19 July 2013, P also asked D to collaborate with him so that he could claim $180,000 from Chao for the injuries that he sustained.  D said that he immediately refused this request of P.  P denied that he ever asked D to collaborate with him to claim $180,000 from Chao.  On this dispute of fact, I prefer the evidence of D to the evidence of P.  I believe D and disbelieve P.  I find that on his discharge from hospital on 19 July 2013 P did ask D to collaborate with him to claim $180,000 from Chao but that D immediately refused to do so.

100.  It seems to me that P knew full well that D was the principal contractor who had sub‑contracted the painting works to him.

101.  Chao, as well as the other witnesses called by D, were under the impression that P was also a sub‑contractor engaged by D to do the painting works at the premises rather than a direct employee of D.  They did not actually know the real relationship between P and D but they were under the impression that P was also a sub‑contractor of D.

102.  It seems to me that it is highly unlikely that D would have hired P as his direct employee when the undisputed evidence is that all the other persons doing the different parts of the renovation works were sub‑contractors of D.

103.  P said in his witness statement that in mid‑August 2014 he submitted two sick leave certificates to D.  This covered the period from 17 July to 1 August 2013 and from 1 August to 26 September 2013.  P went on to say that when D received the two sick leave certificates on that day D verbally promised P that he would pay four‑fifths of his salary, ie the periodical payments under the Employees’ Compensation Ordinance.  From his witness statement it would appear that P was saying that the two sick leave certificates were given to D on the same day in mid‑August 2014.  D denied that he ever received sick leave certificates from P or that he ever promised to pay him four‑fifths of salary to P as alleged by P.

104.  I would observe that in evidence, however, P said that he submitted the two sick leave certificates to D on two different occasions.  Hesaid that the two sick leave certificates were handed to D in 2013.  This was contrary to what he said in his witness statement when he said that it was in August 2014 when he handed the two sick leave certificates to D.

105.  On this dispute of fact, I prefer the evidence of D to the evidence of P.  I believe D and disbelieve P.  I find that P did not give any sick leave certificates to D at any time whether in 2013 or in August 2014.  I also find that D never promised to pay P four‑fifths of his salary. In my view, it is inconceivable that D would have said to P that he would pay four‑fifths of his salary to D.

106.  I also find that, apart from the paint that was used, D did not provide any equipment or tools to P for the painting works at the premises.  On this dispute of fact, I prefer the evidence of D, which I accept, to the evidence of P, which I reject.

107.  I find that the paint that was used by P to do the painting works at the premises was provided by D to P but that the other tools including the ladder was not provided by D to P for the painting works at the premises.  I find that P provided all of his own tools including the ladder for the painting works that he did at the premises.

108.  I also find that Ah Pun was a painter hired by P to assist him to do the painting works at the premises.  I find that Ah Pun was not an employee of D but that he was employed by P.  As I have said, I prefer the evidence of D, which I accept, to the evidence of P, which I reject, on these matters.

109.  I also find that P was free to come and go at his own time at the premises when doing his painting works there.  He was also free to take leave and did in fact take leave to go back to his hometown.  I find that he was not required to seek the permission or approval of D whenever he took leave.

110.  I find for D on the question of liability.

111.  As to issue (1) I find that P was not D’s employee at the time of the accident.  I find that P was D’s sub‑contractor.

112.  As to issue (2) I find that D did not provide the ladder which was used by P at the time of the accident.

113.  Issue (3) does not arise in view of my findings.

114.  P has failed to establish liability against D and the action should be dismissed.

QUANTUM

115.  In the event that I am held to be wrong on the question of liability, I go on to consider the quantum of damages that I would have awarded to P.

116.  In his written opening submissions, Mr Lee submitted that P’s total claim as particularized in P’s revised statement of damages was $3,021,149.30 plus interest, made up as follows:

(1)	Pain, suffering and loss of amenities	$250,000
(2)	Pre-trial loss of earnings	$551,582.50
(3)	Post-trial loss of earnings	$2,028,511.80
(4)	Loss of earning capacity	$179,400
(5)	Special damages	$12,000

117.  On the first day of trial, Mr Lee informed the court that P was abandoning his claim for post‑trial loss of earnings and that he was no longer pursing item (3) in the sum of $2,028,511.80 thereby reducing his claim by the said sum.

118.  P was admitted to hospital on 17 July 2013 and was discharged two days later on 19 July 2013.  There is no dispute about the injuries he sustained and these are well documented in the medical reports in evidence.

119.  After discharge from hospital, P was required to have follow‑up appointments at the Specialist Out‑Patient clinic of the hospital.  P complained of pain over the right lower chest wall, especially during right upper limb movement and coughing.

120.  P was examined jointly by his orthopaedic expert Dr Wong See Hoi (“Dr SH Wong”) and by D’s orthopaedic expert Dr Patrick Wong Kwok Shing (“Dr P Wong”) on 15 May 2015.  ‌Their findings are contained in their joint report (“the joint report”) dated 19 June 2015.

121.  P’s complaints at the time of the joint examination was that he suffered from intermittent right chest pain with dull ache, particularly during change of weather, after work, and on exertion from lifting heavy objects of up to 20 to 30 catties, as well as from painting for 1 – 2 hours.  He informed the doctors that his daily living activities could be conducted without aid and he was able to take care of himself without any difficulty.

122.  The joint report detailed what the experts found on physical examination of P.  They found as follows:

“Physical Examination:

13.   Back:

  – No deformity

  – Local tenderness over back

  – Movement of upper limbs normal

14.   Chest:

– Non tender

– Air entry symmetrical

– Auscultation normal

– Chest expansion 4cm”

123.  X‑ray of the chest showed that the fractures had healed with satisfactory alignment.  There was no lung lesion detected.

124.  They were satisfied that P had sustained an injury to his chest on 17 July 2013.  Their diagnosis was non‑displaced fracture over right 5^th to 7^th ribs and left 3^rd rib.

125.  They considered that the treatment that P had received was standard and appropriate.

126.  P said that he still suffers from intermittent chest pain which gets aggravated on coughing, inhaling, raising right arm and on exerting and lifting heavy objects.  He requires rest when he experience chest pain.  P said that this limited his ability to work and reduced his competitiveness in the labour market.  In my view, P has exaggerated his symptoms.

127.  Dr SH Wong was of the view that with rib fracture the adjacent structures are also affected resulting in soft tissue injury with edema and tear.  He was of the view that although P’s fractures had healed, P was expected to have residual discomfort and on and off attack of chest pain particularly on exertion and in heavy lifting and carrying.  He was of the view that P had reached maximum medical improvement.  His prognosis of P was fair to good.  Dr SH Wong was of the view that P was able to resume pre‑injury occupation but with decreased efficiency and capacity as he may have discomfort and inconvenience in heavy lifting and carrying, frequent climbing up and down as well as prolonged elevation of upper limbs when painting non‑stop which may require rest afterwards.

128.  Dr P Wong was of the view that as there was no significant objective abnormal sign both clinically and radiologically in the joint examination, P should have attained good recovery from the undisplaced rib fractures.

129.  Dr P Wong emphasized that P’s rib fractures were undisplacedand that there was little doubt that the amount of associated soft tissue injury would be small rather that extensive as compared with penetrating injury, displaced or comminuted fractures.  He was also of the view that P had reached maximum medical improvement.  His prognosis of P was good.  He said that P may have mild chest discomfort from time to time but functional capacity should remain reasonably normal.

130.  Dr P Wong was of the view that P should be able to resume his previous job with minimal reduction of efficiency and capacity.

131.  There is no dispute that P obtained sick leave certificates giving him sick leave from 17 July 2013 up to 27 August 2014.

132.  Dr SH Wong was of the view that the sick leave given to P was appropriate.  Dr PH Wong, however, said that the fractures were not visible on the X‑rays taken on 24 October 2013 and that P’s attending doctor expected that P could return to work four weeks later, which Dr PH Wong regarded as very reasonable.  His view was that as subsequent X‑rays including the up‑dated X‑rays taken in the joint examination showed good bone healing, sick leave up to November 2013 should have been adequate.  He was of the view that the extended sick leave granted up to 27 August 2014 was not justified for P’s uncomplicated and undisplaced rib fractures.

133.  I prefer the opinion of Dr PH Wong to the evidence of Dr SH Wong on when P was able to go back to work as a painter.

134.  Sick leave certificates are not conclusive evidence of when a patient is able to go to back to work.  As Le Pichon JA said in Tam Fu YipFip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at para 18:

“... Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award of pre‑trial loss of earnings and no other.  Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court.  As Rogers V‑P observed in: Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd (unrep., CACV 172/2004, [2005] HKEC 1077) at para.9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

135.  Dr PH Wong said that sick leave up to November 2013 would have been adequate.  I am prepared to allow a further two months for P to find suitable work as a painter after that.  It seems to me, and I so find, that P could have gone back to work as a painter in January 2014.

Pain, suffering and loss of amenities (“PSLA”)

136.  Although in his opening submissions Mr Lee submitted that PSLA should be awarded in the sum of $250,000, in his closing submissions, however, Mr Lee submitted that PSLA should be awarded in the sum of about $300,000.  ‌He relied on Lam Wai Chun v Tam Chi Wai (HCPI 1352/2000, 6 October 2001); Chung Chun Man v Chow Wai Kin (HCPI 713/2004, 21 June 2005) and Chan Chi Ming v Sze Hing Sang (HCPI 531/2011, 11 December 2013).

137.  Each case, of course, depends on its own facts. In my view, a reasonable award for PSLA in this case is $250,000.

Loss of earnings

138.  P’s claim is for loss of earnings from 17 July 2013 to end of November 2014, ie for 16.5 months.

139.  The claim for loss of earnings after that time was abandoned on the first day of trial.

140.  Mr Lee submitted that the average earnings of P before the accident was about $21,333.33. This was on the basis of P earning $64,000 at the different flats for 64 days at $1,000 per day.  I am prepared to adopt $21,400 as the average monthly earnings of P for the purposes of calculating loss of earnings.  The period that P should be entitled to loss of earnings is 6.5 months ie from 17 July 2013 to end January 2014.  The loss of earnings that I would have awarded to P is the sum of $139,100.

Loss of earning capacity

141.  P claims $150,000 for loss of earning capacity. In my view, a reasonable sum for loss of earning capacity is $75,000.

Special damages

142.  P claims a total of $12,000 made up as follows:

(1)	Medical expenses	$5,000
(2)	Tonic food	$3,000
(3)	Painkiller	$1,000
(4)	Travelling expenses	$3,000

143.  As regards medical expenses, P has produced receipts for only $1,030.  As he said that he has also sought treatment from a herbalist in the Mainland, I am prepared to allow a total sum of $2,000 for medical expenses.

144.  No receipts have been provided for the other items.  I wouldallow $2,000 for tonic food, $1,000 for painkillers and $1,500 for travelling expenses.

145.  I would have awarded special damages in the total sum of $6,500 made up as follows:

(1)	Medical expenses	$2,000
(2)	Tonic food	$2,000
(3)	Painkillers	$1,000
(4)	Travelling expenses	$1,500

146.  The total damages I would have awarded P is $470,600 made up as follows:

(1)	PSLA	$250,000
(2)	Loss of earnings	$139,100
(3)	Loss of earning capacity	$75,000
(4)	Special damages	$6,500

147.   I would also have awarded interest on PSLA at 2% per annum from date of service of writ to judgment, and on the special damages at half judgment rate from date of accident ie 17 July 2013 to judgment.

CONCLUSION

148.  As P has failed to establish liability against D, I dismiss P’s claim against D.

149.  I also make an order nisi that P do pay D his costs of the action.

150.  P’s own costs are to be taxed in accordance with Legal Aid Regulations.