SINGH HARJIT v. DETERMINATION BUSINESS LTD T/A MUSE STUDIO

DCEC 1082/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1082 OF 2011

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JUDGMENT

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Introduction

1. This is an application under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (the "ECO") for compensation in respect of an injury which the applicant claims was sustained in an accident on 8 May 2010 whilst working at a work site at Winfield Gardens, 8 Fa Po Street, Kowloon Tong, Hong Kong (the “WG site”)[1].  It is the applicant’s case that he (a) was an employee of the respondent at the time; and (b) suffered the injury out of and in the course of his employment with the respondent.  He claims the total sum of HK$212,852.00

2. The respondent denies that the applicant (a) was an employee of the respondent at any stage but was instead a contractor hired to transport tiles for a decoration works project at the WG site on the material date; and (b) suffered an injury, in the course of employment with the respondent, at the WG site as alleged.  Liability and quantum are both disputed. 

Housekeeping

3. Before the case was opened, I was informed by both Mr Sadhwani (Counsel for the applicant) and Mr So (Counsel for the respondent) that:-

(a) the applicant’s claim under section 10A ECO, namely medical expenses in the sum of HK$380, had been agreed between the parties; and

(b) on quantum, the joint medical report dated 2 August 2012 prepared by Dr Wong Chin Hong (“Dr Wong”) and Dr Chun Siu Yeung (“Dr Chun”), respective orthopaedic experts of the Plaintiff and Defendant, was to be adduced without oral evidence as ordered by HH Judge M Wong on 10 October 2012.

4. Separately, I also directed that witness statements of all the witnesses of fact, previously exchanged, were to stand as their respective evidence in chief.

5. In his closing submissions, I was informed by Mr Sadhwani that the applicant no longer wished to pursue his appeal against the Employees’ Compensation (Ordinary Assessment) Board’s (the “Board”) assessment issued on 14 March 2012[2], the Board having assessed the applicant’s permanent loss of earning capacity at 5%. The respondent, however, maintained its appeal namely that the applicant’s permanent loss of earning capacity should be assessed at 0.5%[3].

Issues at trial

6. The issues that arise for determination at trial are as follows:-

Issue (1) -  whether the applicant was an employee of the respondent or an independent contractor at the material time;

Issue (2) - whether he was injured and that such injury arose “out of and in the course of his employment" with the respondent; and

Issue (3) - the level of compensation payable under sections 9 and 10 ECO. In respect of quantum, the respondent took issue with the following items raised by the applicant:-

(a) the number of working days per month (of the applicant);

(b) the loss of earning capacity (as referred to above); and

(c) the period of sick leave.

Relevant legal principles

7. As to determining the employment status of the applicant, which I need to do in order to resolve Issue (1), the legal principles were not disputed.

(1) It was accepted that Poon Chau Nam v Yim Siu Cheung(2007) 10 HKCFAR 156 is the leading authority on the approach to be taken:-

“The modern approach to the question whether a person was an employee is to examine all the features of their relationship against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment. This involves a nuanced and not a mechanical approach: painting a picture from the accumulation of detail. The indicia include the degree of control exercised by the "employer"; whether the person performing the services provided his own equipment; whether he hired his own helpers; what degree of financial risk he took; what degree of responsibility for investment and management he had; and whether and how far he had an opportunity of profiting from sound management in the performance of his task”

(2) In examining whether someone is carrying on business on his own account, rather than as an employee:-

“… 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:” per Mummery LJ in Hall v Lorimer (as cited at paragraph 18 of Poon Chau Nam)

(3) I also have derived assistance from the dicta of Cooke J. in Market Investigations v Minister of Social Security [1969] 2 QB 173 at 184 – 185, as approved in Poon Chau Nam and Lee Tin-sang v Chung Chi-keung [1990] 1 HKLR 764:-

“Is the person who has engaged himself to perform these services performing them as a person in business on his own account? If the answer to that question is ‘Yes’, then the contract is a contract for services. If the answer is ‘No’, then the contract is a contract of service. No exhaustive list has been complied and perhaps no exhaustive list can be complied of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and the facts which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”

(4) No single factor is determinative and a court will balance the various factors suggesting the existence of an employment relationship against contrary factors, and their relative strengths and weaknesses… some factors may be neutral. Some may be entirely irrelevant: Chitty on Contracts, Hong Kong Specific Contracts, 3^rd edition,paragraph 7-002.

8. In summary, the principles state that it is fundamental to look at the entire relationship and how it works in reality.  The parties’ own subjective views or apprehensions as to the nature of the relationship are relevant but not determinative.  Practical application is the key - a consideration of the relationship involves looking at a number of practical factors objectively and applying the indicia of employment.

9. Finally, the burden of proof of is on the applicant and is on a balance of probabilities.

Liability

10. In respect of liability (Issues (1) and (2)) it was apparent from the pleadings, witness statements and the testimony of the witnesses that the applicant and respondent took issue with key facts and were essentially presenting different versions of events.  As such, in determining the issues, it was accepted that much depended on my assessment of the credibility of the witnesses.

11. In Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513, Deputy High Court Judge Thomas Au (as Au J then was) set out the following considerations which a court should consider when assessing the credibility of a party’s case (at paragraph 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; and

(4) the demeanour of the witness.”

12. This dicta was recently cited with approval by the Court of Appeal in Ageas Insurance Company (Asia) Ltd v Lam Hau Wah Inneo, CACV No. 65 of 2014, unrep, 9 January 2015 at paragraph 38.

The witnesses

13. The applicant gave evidence and called the following factual witnesses:-

(1) Majer Singh (“Majer”), a friend of the applicant; and

(2) Brar Gurwinder Singh (“Brar”), a friend of the applicant.

14. The respondent called the following factual witnesses:-

(1) Cheung Kwok Wai (“Cheung”), the boss of the respondent; and

(2) Lau Tsz Ching (“Ching”), an employee of the respondent.

Issue (1)

The applicant’s evidence on Issue (1)

Background

15. The applicant is a Hong Kong born Punjabi.  He moved to India as a child and received education up to primary level there. He returned to Hong Kong in his teens.  He admitted to speaking limited English and Cantonese and testified using the Punjabi language.

16. His first introduction to the respondent was in around late 2007 to early 2008 when he met Cheung, the boss of the respondent.  He was working at that time as a general labourer with a contractor (“Ah Lee”) and would sometimes run into Cheung at worksites.  During this period he said Cheung offered him a job, but which he did not take up as he was already working. However, when he was unemployed in about late 2008, the applicant telephoned Cheung asking for work.

Interview with Cheung

17. Following this telephone call, the applicant says that he was asked to attend Cheung’s office to interview for a job as a labourer which involved carrying out job duties such as delivering construction materials, cleaning and clearing rubbish and debris.  After the interview, Cheung asked him to start working the next day and told him he would be employed (my emphasis) as a casual worker.  No written employment contract, however, was signed but it was agreed that if the applicant worked he would be paid HK$500 per day.  The applicant stated that he did ask Cheung on that occasion for, and was given, HK$2,000 – HK$3,000 which he says was agreed to be deducted from his first month salary.  He needed the money because he was jobless at that time.

Job duties

18. From late 2008 up to around March 2010, the applicant says he was employed by the respondent as a labourer, on an occasional basis, at work sites in Hong Kong.  In spite of the occasional nature of work assigned to him - which meant that he did not work every day but only as required - he believed himself to be a “permanent” staff of the respondent.  However, he accepts that up to March 2010 he did have days when he had no job (he called these “days off”) as well as holidays and was available to work with outside contractors during these periods.

19. He stated that he did not need to seek the respondent’s permission to do outside jobs and he was free to choose whether to take up such jobs.  Similarly, even if the respondent called him during his days off with an offer for a job, he was free to refuse to work for the respondent.  Typically, however, he said that if contacted by the respondent whilst doing an outside job, he would leave the outside job and come back to work for the respondent.

20. It was only in April 2010 when he started working formally for the respondent “as a worker”.  By “formally”, the applicant said this meant “continuously”, ie without any off days.  At the time of the accident, the applicant says, he was paid $500 per day and worked twenty-six days per month, earning about HK$13,000 per month.  He says that Cheung told him that his working hours were 9am to 6pm. He also said that the respondent would monitor these times.

Payment

21. He said that he would normally get paid by the respondent after every month (on the 5^th or 10^th of the month) but that he had a practice whereby if he had worked as little as one day up to a few days and needed to receive his wage, after having completed his work, he would ask Ching to pay him for outstanding wages owed to him.  He says that the respondent would pay him primarily by bank deposit into his bank account or by cash.  It emerged in evidence that he was also paid by cheque on at least two occasions[4].

Other workers

22. It was not disputed that the applicant would introduce other general labourers to the respondent, from time to time, to undertake jobs at a work site (the “other workers”).  Invariably, the applicant would bring the other workers along with him at the start of his own job (pursuant to a request by the respondent) but sometimes they would come to the worksite without him.  It was not disputed that they would be paid HK$500 by the respondent per day’s work – the same wages paid to the applicant.

23. The applicant’s case was that Majer and Brar were also casual workers hired by the respondent to do labour work and were also employees (my emphasis).

24. In any event, as to how the other workers were hired by the respondent, this was usually done by way of a request from the respondent shortly before a job arose.  It was not disputed that the applicant would receive requests from Ching[5] who asked him whether he could source workers to carry out labour work at particular sites and on particular dates.

25. Some text messages produced by the respondent[6] confirmed requests from Ching such as “I need 2 porter to transport tiles!  Pls answer me can you find people!” and “Tomorrow I need 1 people to go to Marina Cove, house17 (full day)!  Pls answer me can you find?”  It was in response to one of these sorts of requests that Majer and Brar were brought along by the applicant to the respondent’s worksite in May 2010.

Worksite instructions

26. Originally, the applicant’s case was that he was working “under the instructions given by Cheung”[7]. At trial, he said that he would normally take instructions from Ching or a Chinese male from the respondent (whom he and Brar knew as “Oscar”) who were working for the respondent.  Oscar and Ching, the applicant says, would give instructions to him and the other workers (who were invariably South Asian males).  After giving instructions, both Oscar and Ching would then depart from the site, leaving the applicant and/or the other workers to themselves carry out the job duties.  The applicant stated Oscar and Ching were the respondent’s staff that used to regularly visit a work site.  Cheung, on the other hand, would visit occasionally (usually two or three times per week in May 2010) and would simply exchange greetings rather than give any instructions.

Provision of equipment and tools

27. The applicant’s case is that the respondent provided all equipment and tools on a worksite, namely a drill, trolley and work gloves (where required).  The applicant and the other workers were required to only wear their own safety shoes.

The WG site

28. The applicant stated that he started working at the WG site from early May 2010 and was working there with Brar on 8 May 2010.  The applicant’s case is that Ching and Oscar were at the WG site for a short period that morning, gave instructions to the on site workers (including Brar, the applicant and the other Chinese contractors) in the usual manner and left the WG site without returning that day.  The applicant and Brar were instructed by Ching to unload marble from a truck and transport it from the ground floor of the WG site to the 3^rd floor.  Both Brar and the applicant say that there were two sizes of marble required to be moved, namely a smaller tile weighing about 30kg and a larger tile weighing 80kg.

29. The applicant and Brar were the ones responsible for the transporting of tiles that day.  The other Chinese contractors were doing different jobs inside the WG site.

The respondent’s evidence on Issue (1)

30. The respondent carries on the business of interior design and decoration works for residential properties.  Cheung, the boss, says that he would liaise with his clients in respect of requested decoration works and supervise the progress of a particular project.  He said that, with respect to decoration projects, he would sub-contract out the majority of the works (such as cement works and some tedious jobs) to other contractors and retain the design part of the project for the respondent to carry out itself.

The hiring of the applicant and other contractors

31. In respect of all contractors hired by the respondent, Cheung’s evidence was that hiring was always preceded by an interview, which he himself conducted.  During an interview, a contractor fee as well as the area of work would be discussed and agreed.  Upon mutual understanding as to each side’s respective roles the respondent would then begin to start engaging these contractors when projects arose.  Cheung’s evidence was that once a contractor was engaged on a particular job, he would not bother with the fine details of the actual work and leave it to the contractor to arrange the manner by which that job would be carried out.  He would also not deal with any additional workers that that contractor himself might hire - he would only deal with the boss of the contractor himself.

32. Cheung agrees that he met the applicant in late 2007 to early 2008.  In about 2008, the applicant had come to Cheung asking for money since he was unemployed.  Cheung agrees that he lent money to the applicant in the sum of HK$2,000 to HK$3,000.  On a subsequent occasion, the applicant again asked Cheung if he could lend him some money.  Cheung said that on the last occasion he suggested that the applicant take up some future work for the respondent as a contractor[8] (my emphasis) to transport tiles.  Such work was at that time being handled by other contractors of the respondent.  It was work that did not require a high education level and therefore was suitable for the applicant.

33. After discussion as to whether the applicant preferred a per-job wage rather than a per-day wage, which was the industry norm, the applicant agreed to a HK$500 daily wage and that he would be engaged as a transportation worker (to move bricks or tiles on a worksite) when required by the respondent.  Such work usually took place towards the end of a longer project and required only about two days of the applicant’s time in total.  As to the use of additional workers, Cheung said, again, that this was not of his concern - it was for the respective contractor to deploy his own workers.

34. Cheung stated that he stressed to the applicant that he was not being hired as an employee but as a contractor, which he said the applicant understood.  He had no use for an employed labourer in light of the limited time for which one was needed on a particular project and no such position was open at the respondent.  As to communication, Cheung says he always spoke to the applicant in Cantonese (whose conversational Cantonese, he said, was sufficiently fluent).

35. For day-to-day matters, as well as the hiring of the other workers to carry out particular jobs, these would not be handled by him but his staff.  Typically this was Ching.  He denied there was anyone named Oscar working for the respondent.

Payment

36. As to payment of the applicant’s daily wage, the respondent’s evidence was that the applicant would be paid on a lump sum basis after every job (rather than in the monthly manner alleged by the applicant).  Ching’s contention was that “upon completion by the applicant of his works, he informed me which account the respondent shall pay him for the total fee for the work of the applicant and his Indian friends. The fee would be settled by one cheque for the total amount the respondent shall agree to pay for the total works for the applicant and the workers brought by him”[9].

37. Ching agreed that the other workers were hired by the respondent, as described by the applicant (see paragraphs 24 and 25 above).

Provision of equipment and tools

38. As to equipment and tools, the respondent’s case was that the applicant was required to provide his own equipment.  Given that he was only hired as a transportation worker responsible for moving materials and debris, only work gloves and safety shoes were required. The applicant and the other workers would themselves bring these with them.

Instructions on site

39. Ching agreed that if she was on site, but the applicant was not there, she would give instructions to the other workers.  If he was present she would herself instruct them through the applicant.  She also denied that there was anyone called Oscar who worked for the respondent and/or came with her to the worksite, as described by the applicant.

Fact finding on Issue (1)

The indicia of employment

(1)  The degree of control exercised

40. The applicant’s witnesses testified that two people on site would usually give instructions to them, Ching and Oscar.  Both of the respondent‘s witnesses denied that there was any person named Oscar.  I believe Cheung and Ching on this point and reject the evidence of the applicant’s witnesses.  I am not satisfied on the evidence that there was another person named Oscar on site, giving instructions to the applicant and the other workers. 

41. First, neither the applicant nor the other witnesses for the applicant had mentioned Oscar in their witness statements prior to trial.  Second, given the above, I do not see why Cheung and Ching would deny that there was another person on site if this was not the case – by all accounts he was not an integral player in these proceedings. I find that Ching was the only person who gave instructions to the applicant and the other workers, including Brar and Majer.

42. Despite the above finding, however, there was typically no instruction needed as to the manner in which the transportation work was required to be done.  It was not disputed by Ching that there was little or no control or supervision required by the respondent in respect to transporting tiles or clearing debris.  Indeed, by 8 May 2010, the applicant would have been very familiar with the job such that no control was practically needed.  Following Poon Chau Nam, I consider that the “control test” is of little relevance in determining the employment status of the applicant.

Hiring of the other workers

43. As to hiring of the other workers, the main dispute was as to who made the decisions in respect of the number of workers required for a given job.  It was not disputed that Ching would ask the applicant to source workers for an upcoming job (see the text messages above).  She also did not care who the other workers were as long as they were not illegal workers.

44. Ching stated that the text message request was merely an estimate as to how many workers were needed, which would be based on enquiries she made with the supplier of the materials that needed moving (for which the transportation job arose).  She stated that if the applicant realised, upon arrival at the site with the requested workers, that the transportation job actually required more manpower then he would inform Ching.  If the cost (at HK$500 per day) per worker was still within the respondent’s budget, then she would invariably approve such request.  The applicant denied this.  He said that he gave no input to Ching as to number of workers needed by the respondent.

45. After hearing the evidence, I am satisfied that the applicant was the person who decided the number of workers ultimately required for a job.  He was in the best position to decide what manpower was needed.  If Ching’s original estimate was sound, he would accept it.  If not, he would suggest more workers be added.  I accept Ching’s evidence in this regard, which I believe.

46. It was undisputed, however, that the applicant sourced the other workers for the respondent.  The other workers were also engaged by the respondent. On the evidence, I am satisfied (and find) that it was the respondent that hired the other workers for jobs on the respondent’s worksites and that the applicant did not hire the other workers himself.

Profiting from the other workers

47. It was undisputed that the respondent paid the workers the same wage that the applicant earned.  It was not suggested, nor was there evidence to show, that the applicant would profit from the hiring of these workers or that the lump sum payment made was to be divided into proportions that did not reflect the equal payment of HK$500 per worker per day.  I find that the applicant did not profit from the hiring of additional workers.

Payment

48. Despite their respective testimony, there was no evidence produced to show that the applicant’s witnesses, particularly Brar, received money individually for work performed for the respondent, which they said usually would be in cash.[10]

49. The only primary evidence of actual payment for work produced for trial was a HK$3,000 cheque in the name of Majer[11]. It was undisputed that it represented the applicant’s own payment for two days of work (7 May and 8 May 2010) combined with corresponding two-day payments to Majer (3 May and 4 May 2010) and Brar (7 May and 8 May 2010) and was issued in Majer’s full name, namely “Majer Singh”.  In other words, a lump sum payment or “total fee” as contended by Ching.

50. As to how this cheque came about, the applicant contended that Ching arranged unilaterally to issue it in Majer’s name.  He said that he had actually asked her for cash but when informed that the cheque had already been issued on 10 May 2010, he stated that he would sort out payment from Majer.

51. Ching said that it was the applicant that had requested the cheque to be issued in Majer’s name.  She said that she did not know Majer personally.  Indeed, on Majer’s case, he only met her for a brief period in the morning of 3 May 2010 during which time she never spoke to him directly.

52. I note from the text message dated 8 May 2010[12] (the “8 May text message”) that the applicant (who is “Dee 2” and “Dee” stated below) sent to Ching the bank account number of Majer: -

    拆場 - Dee 2

    08-May-2010 4:40 pm

    -------------------------------------------

    230-6081-114

    Hang seng bank

    Dee 6 days

53. It was also not disputed that Ching deposited the HK$3,000 cheque into this bank account on 11 May 2010.

54. That Ching deposited the HK$3,000 cheque supports the respondent’s case that the applicant had supplied the information to her. Logically, she must have also been told the name of the holder of the account into which the payment was to be deposited.

55. The applicant’s version, that Ching decided to instruct the accounts department of the respondent to issue a cheque comprising payment to three people (the applicant, Brar and Majer) in the name of someone that she did not know also lacks common sense.  Ching had been dealing with the applicant for over one year by that stage and I do not believe that she would have unilaterally decided to pay his wages over to someone else without his consent or direction.  I prefer the evidence of Ching and do not believe the applicant on this point.  I find that Ching issued the HK$3,000 cheque in Majer’s name because this is what the applicant requested, consistent with the 8 May text message.

56. As to payment generally, the applicant’s case was that he was paid monthly by the respondent, on the 5^th or 10^th of each month.  However, he failed to produce any evidence of this, indicating that such evidence does not exist.  It would have been simple to produce his bank records – he confirmed that a Hang Seng bank account[13] belonged to him – or other documentary proof, yet discovery was wholly lacking.  The evidence that was produced, on the other hand, suggested that on a number of occasions he was seeking payment for work done but paid to others or into other’s bank accounts[14].  The applicant’s evidence suggests an ad hoc payment structure.

57. Without any evidence of monthly payments, but undisputed evidence of a lump sum payment together with the respondent’s evidence on the same, which I accept, I find that the applicant did not receive payments from the respondent on a monthly basis, as claimed, but on a per job basis.  In addition, payments made to the applicant were combined with payments made to the other workers.  As mentioned, the HK$3,000 cheque is evidence of this.  Indeed, his wage for, inter alia, 8 May 2010 was included in this cheque.

58. In spite of my observations above I am reminded that the assessment of employment status is one of objective analysis, together with consideration of the indicia of employment.  It, therefore, must be asked whether the form of payment, as consideration for a job done, is significant in determining the actual status of the job undertaken?  I cannot come to such conclusion.

The name card

First step

59. The agreed translation of the name card (the “Name card”) reads:-

Ah D (transliteration)   Harjit Alamwala   Mobile: 6385 277 6385 2786	SUNNY Mobile: 6131 1821 Fax: 2254 4477
Expertise	Dismantling works on any scale
In operating	Buying Scrap Metal for Recycling at Good Price

60. Cheung said that the applicant gave the original of the Name card to him in 2008 – 2009 at a time when the applicant had already started working for him.  This would tally with the unchallenged evidence that the applicant started working with the respondent from late 2008.

61. Cheung stated that the applicant told him that he had started a company offering dismantling services and had partnered with someone named “Sunny”.  He asked Cheung to hire him when such work was available.  Cheung stated that he already had contractors in place for most positions and did not need to engage any new contractor at that time.  He said, which Ching confirmed, that he passed the Name card to Ching who then scanned the card into the company records and the details of the same were entered onto the respondent’s contractor list. 

62. As to the original Name card, Ching stated that she would store name cards temporarily and clear them out annually.  Unsurprisingly, she has no specific recollection as to the whereabouts of the original of the Name card.

63. Mr Sadhwani suggested that the fact that the original could not be produced at trial, but only a photocopy, should weigh against the respondent.  I disagree.

64. There is no particular reason why she should have retained the original of the Name card at that time – the applicant was merely a prospective dismantling works specialist at that time.  After the details were copied (such copy being produced at trial), I do not see why the original needed to be retained.  Litigation was not contemplated at that stage and it is entirely plausible that it was discarded as part of a normal clear out.

65. Ching’s evidence went further in that she also testified as having met “Sunny” on previous occasions working together with the applicant.

66. The main contention of the applicant was that the Name card had been fabricated (although a Counter Notice challenging authenticity was only filed during the course of the trial).  He said that he had never seen the Name card before and that he never gave it to the respondent.  He did not know anyone named “Sunny”.  However, he did agree that his nickname “Harjit Alamwala” and short name “Ah D”, which appeared on the Name card, were names by which he was known[15] - the respondent’s witnesses both referred to the applicant as “Ah D” in court.  In addition, both telephone numbers also appearing on the Name card were in fact his correct telephone numbers.

67. I have heard all arguments on the point.  I do not believe the applicant when he says that he had never seen the Name card before which, on my finding, is untrue.  I am satisfied from the evidence that the applicant did present the original Name card to Cheung and I so find.  There is no dispute that the details of the applicant are correct.  At the same time, I fully accept that the original may have been discarded after having been scanned. This is entirely reasonable.  

68. In turn, I reject the applicant’s case that the respondent fabricated the name card.  That too bearing the exact details of the applicant which were not known to the respondent, e.g. his surname Alamwala which the applicant himself agreed that no one called him. I find that the applicant, in his witness statement[16], was distancing himself from the Name card (which stated his alias).  He said “the names were different” when the details actually and correctly referred to him. Indeed, apart from a bare assertion that the Name card was fabricated the applicant offered nothing more. His evidence is incredible.

69. I also believe Ching that she had previously met Sunny working with the applicant as described.  As a result, I reject the applicant’s contention that he did not know anyone named “Sunny”.

70. I find that the applicant gave the Name card to Cheung.

Second step

71. This, however, is not the end of this issue.  A second step must be considered – ie what was the purpose of the Name card?  Mr Sadhwani, on his alternative case, suggested that the Name card could have been presented by the applicant to show that he was available to take up dismantling works, presumably on a casual basis, but not that he was representing that he had a business.

72. I also reject this submission.  Cheung said the applicant gave it to him in around 2008 - 2009.  He told Cheung that he had partnered with someone doing dismantling works and was available to take up such work in future.  He asked Cheung to keep him in mind. I have no hesitation in accepting the respondent’s version and disbelieving the applicant.  I believe Cheung’s account of what was discussed at that meeting.  In my view, the Name card was presented to Cheung by the applicant to solicit business on his and Sunny’s account, with respect to dismantling works. There was no evidence to challenge this – evidently because the applicant’s primary case was that the Name card had been fabricated.

Third step

73. A third step must then be considered – ie was the applicant wearing two hats, in other words, a casual employee for transportation work but also doing business on his own account in respect of dismantling works?

74. In my view, this is more problematic for the respondent.

75. Cheung did not suggest that the applicant had presented the Name card to seek transportation work as he was already carrying out such work for the respondent at the time.  At the same time, the wording on the Name card cannot be read as promoting a transportation business, rather one for dismantling works only.  To me this is clear from a proper reading of the Name card.

76. Considering the evidence objectively, the Name card cannot be read as going beyond its simple wording.  It is entirely plausible that he was holding himself out as having a dismantling business but at the same time being available to take up other casual jobs, such as transportation work for the respondent: Leung Kwok Biu v Tam San Yu, t/a New Shine Engineering Co, DCEC 1278/2007, unrep, 21 January 2009 (paragraph 35).

77. Such being the case, and there being no dispute that the applicant was carrying out transportation work on the material day, I do not consider the Name card as evidence that assists me in my analysis.  

Provision of equipment and tools

78. In relation to transportation work, it was confirmed by Mr Sadhwani that on the date of accident, the only tools being used by the applicant and Brar to move the marble tiles at the WG site were work gloves.

79. Majer’s evidence is that when he worked at the WG site on 3 May and 4 May 2010, he used a drill which was provided to him by the applicant himself.  At the same time, Brar said that he used a drill at the WG site on 8 May 2010 to break tiles.  However, this was outside the ambit of his job that day which was to assist the applicant in transporting tiles.  This was also a bare assertion without supporting evidence and I reject it.

80. Whether or not a drill had been provided by the applicant to Majer on 3 May or 4 May 2010, does not determine the applicant’s status on 8 May 2010.  At the same time I accept that it is not uncommon for craftsmen to provide their own small tools: Chan Suet Hung v Lanfield Marble Company Ltd, DCEC 790/2002, unrep, 4 December 2003 (paragraph 55(b)).

81. In any event, on 8 May 2010, it is undisputed that the applicant was transporting tiles.  This being the case, there was no need for a drill (in spite of Brar’s evidence which I have rejected) but simply work gloves.  There was no other evidence to suggest that the applicant operated a drill on that day[17].

82. Cheung’s evidence was that work gloves were a personal item, such as safety shoes, that every contractor would bring along himself.  I did not have any evidence as to the size, shape and construction of the work gloves alleged to have been used.  There is no dispute, however, that the applicant and Brar used them.

83. The applicant has not satisfied me on the balance of probabilities that the respondent supplied the work gloves and I find in favour of the respondent on this point. However, I do not consider which party supplied the work gloves as significant in my overall assessment given that both contractors and employees invariably bring these along to carry out such jobs.

Working hours

84. It was alleged by the applicant’s witnesses that, being employees of the respondent, they were required to work from 9 am to 6 pm every day.  The respondent’s witnesses denied there was such a structure in place.  The applicant failed to produce any evidence in support.  He also failed to produce evidence that the respondent would monitor these times, as alleged. 

85. It was, however, not disputed that the applicant would be required to work as long as required to complete a job.  If a job could not be completed by around 6pm on a particular day, then the applicant would need to return the next day to complete.  It was also not disputed that once a job was completed, regardless of the time of day, the applicant and his fellow workers could leave the worksite.

86. Whilst it is clear that regular working hours are more indicative of an employment relationship, this necessarily implies a “regular” working role.  The applicant’s case was that he was a “casual” employee.  Necessarily, this accommodates a less structured work schedule.

87. Whilst I am not satisfied on the evidence that the applicant (or indeed Brar or Majer) was required to work between 9am and 6pm – there being no evidence of this - the question of working hours again are not determinative of the status.

Conclusion on Issue (1)

88. I am aware that the applicant is contending that he was a “casual” employee[18].  Indeed, there is no dispute that he was free to do whatever job he wished.

89. I am also aware that the ECO does not apply to employees whose job is of a casual nature: see section 2(1)(b) ECO):-

“(1) the following persons are excepted from the definition of "employee" -

(b) any person whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer's trade or business, not being a person employed for the purposes of any game or recreation and engaged or paid through a club and not being a part-time domestic helper;”

90. However, following Poon Chau Nam, I accept that:-

(a) most classes of persons in casual employment are covered under the ECO;

(b) the ECO recognises that a casual employee may find work with more than one employer;

(c) casual work is by its nature irregular; and

(d) 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.

91. On the facts viewed objectively and applying the particular indicia of employment raised by the parties, I find on a balance of probabilities that the applicant was an employee of the respondent.

92. On 8 May 2010 it was undisputed that the applicant was engaged as a transportation worker for the respondent.  In doing this, the applicant was not carrying on a business on his own account nor did he take any financial risk – he was working for the respondent and it was the respondent that took the ultimate risk of loss or chance of profit in relation to the job.  Nor did he hire his own helpers – on my finding they were hired and paid for by the respondent.  There was also no evidence to suggest that he profited from sound management in the performance of his work.

93. Whilst the applicant’s evidence was unconvincing in respect of some issues (including the payment method of his wages as well as his evidence on the Name card, amongst others stated above), which were evidently advanced by the applicant to bolster his contention that he was an employee (which in the end he did not need) and which I did not believe, these do not significantly affect the objective analysis I am bound to conduct in respect of Issue (1).  Taking a ‘nuanced approach’, and as a matter of overall impression, I am satisfied that the evidence points to the applicant being an employee under the ECO.

94. Whilst not specifically advanced by the applicant, I find that a contract of employment arose each time he was engaged by the respondent to carry out transportation work.  This would typically last one or two days.  The type of contract under which the applicant worked is such that arises as and when a particular casual job is offered and accepted.  This type of contract does not involve any general obligation to provide and accept work and comes into existence in relation only to the specific engagement and normally terminates by performance when the engagement is completed (per Ribeiro PJ in Poon Chau Nam, at paragraph 35).  On the evidence, I find that the applicant was so employed on 8 May 2010.

95. I now turn to Issue (2).

Issue (2)

The injury

96. As stated at the outset, the parties take contrary positions as to the events that are alleged to have transpired on 8 May 2010.  The applicant’s case is that he suffered an injury at around 3pm whilst working at the WG site.  The respondent contends that the applicant did not suffer any injury as alleged.

The applicant’s version

97. The applicant states that, at about 3pm on the material day, he was transporting a large marble tile (80kg in weight) up the staircase of the WG site together with Brar.  It was packed in cardboard and was carried by Brar from the front, with the edge pointing upwards, with the applicant carrying from behind.  In the course of walking on the staircase, it is alleged that the weight of the marble shifted more to the applicant.  He then “twisted his ankle and fell downward on the stairs.[19]”  The same evidence was given by Brar.[20]

98. Brar stated that the applicant’s foot and ankle were injured as a result.  He saw the applicant’s ankle and noticed that the applicant could not and was not walking properly.  He stated that he was worried that the injury was serious such that he told the applicant to call the ambulance. In the end, he physically supported the applicant down the stairs and to go outside.

99. The accident having taken place just before the tea break[21], the applicant took some rest outside and sat with some of the workers also taking their tea break.  The applicant said he first telephoned Oscar after 3pm who told him to rest and to inform Ching.  The applicant says he himself telephoned Ching but also told Oscar to do so.  He said that he made two further telephone calls to Ching, the first around 3:15 to 3:30pm immediately after the accident (the “first telephone call”).  During the first telephone call the applicant says he informed Ching of his recent injury, that he had just fallen down the stairs, was in pain and asked her to inform the boss (ie Cheung).  He says that she told him, during the first telephone call, to take rest and monitor his injury status.  She said if the injury was serious that he should take medicine.  He said he would see (ie monitor his own situation).

100. His evidence was that he rested at the WG site for an hour after which, because the pain was too severe, he decided that he could not stay on and proceeded to leave the WG site.  Brar physically supported the applicant again to leave the WG site and took him to the pavement outside where he left him to go home.  

101. The applicant said that he did not inform Ching that he was leaving because he thought that he had already told her, during the first telephone call, that if he could not continue he would leave the WG site.  Brar was to stay on to continue the job that they had started.  Both Brar and the applicant stated that the job had not been completed by the time he left the WG site on 8 May 2010.

102. After the applicant left the WG site, Brar sought the help of one of the Chinese workers (doing another job on site) to assist him to move the last remaining 80kg tile – he said that he had already moved, with the applicant, around ten 80kg tiles that day.  Brar said that he himself later moved the remaining 30kg tiles, after which the transportation job for the day was completed.  This was around 6pm.  The applicant said that Brar contacted him around 6pm to tell him that the job had been completed.  At this point, the applicant’s evidence was that he made a second telephone call to Ching (the “second telephone call”).  The applicant said that during the second telephone call, he informed Ching that the job was completed.  She asked him about his condition and he informed her that he was at home, had obtained medicine and had applied balm.

103. The applicant said that he did not seek medical attention on 8 May 2010 because he wanted to rest at home.  He said that he only went to the A&E Department of Tuen Mun hospital on 9 May 2010 after persistent pain.[22]  He was treated and discharged.

104. On 10 May 2010, he says he spoke to Ching again by telephone and told her that he had been given sick leave by the doctor and could not resume work.

The respondent’s version

105. The respondent accepts that the applicant was engaged to transport tiles on 8 May 2010.  Indeed, both Cheung and Ching observed the applicant transporting marble tiles, one by one, with another worker - I find that this was Brar - at the WG site in the afternoon.

106. The respondent’s case is that 8 May 2010 proceeded uneventfully.  Both Ching and Cheung said that they arrived at the WG site at around 2pm that day (not in the morning as alleged by the applicant) to check on the progress of various parts of the project.  Ching saw the applicant moving tiles that day, even during the tea break.  She says that she did not see the applicant injured at this time.  The tiles, according to Ching only weighed 15kg and not 80kg as alleged.

107. Ching and Cheung both stayed for about two hours at the WG site and left together at around 4pm.  During their visit at the WG site they were neither told nor informed by anyone that the applicant had suffered an injury as alleged.  Ching denied having received either the first telephone call or second telephone call.

108. Ching’s evidence was that she was only informed on 12 May 2010 that the applicant had sprained his back when she telephoned him to ask if he was available to take up a job – Ching says she did not speak with the applicant on 10 May 2010.  On 12 May 2010 the applicant did not mention that his sprained back had arisen from an accident at the WG site on 8 May 2010 – he simply said that he had sprained his back and could not work.  She only learned from the applicant that he was attributing this injury to the WG site on 8 May 2010 sometime in mid June 2010 when the applicant had sent a number of sick leave certificates to Cheung.  She added that if she had been told by the applicant on 8 May 2010 that he had been injured, she would have considered it a serious problem.

Analysis

109. The factual versions being significantly different, my determination plainly depends on the credibility of the witnesses, following the considerations set out in Lee Fu Wing (supra).

110. The applicant has given a very full account as to what he says happened on 8 May 2010, pre and post injury.  Brar was called to support the applicant’s version of events.  At the same time, the applicant has testified that he communicated with the respondent’s witnesses on that day so their evidence necessarily also needs to be considered, together with any relevant documentary evidence. I consider all of the above in my determination of Issue (2).

Fact finding on Issue (2)

(1)  The telephone calls

111. As mentioned above, the applicant alleges that he had made two telephone calls to Ching, as well as one telephone call to Oscar on 8 May 2010.  As to the sequence of events after his alleged injury at 3pm, clearly these telephone calls are relevant to the timeline.

112. I note however that, in spite of the applicant’s oral evidence, he never mentioned the fact of these telephone calls prior to the trial, nor did they feature at all in the applicant’s witness statements.  Indeed, they were only first mentioned during his cross-examination.

113. In addition, the applicant did not produce any telephone or other records to evidence these telephone calls.  Evidence was wholly lacking in this regard.

114. Indeed, it was clear from the evidence that the applicant in fact used text messaging to communicate with Ching.  As mentioned, a number of text messages between the applicant and Ching were produced by the respondent.  Evidently, the applicant sent the 8 May text message to Ching at 4:40pm that afternoon (in between the first telephone call and second telephone call) seeking payment of his wages.  But there is no indication from the 8 May text message that the applicant had by then suffered any injury.

115. I am not satisfied on the evidence overall that the applicant made any telephone call to Oscar or Ching after 3pm as alleged.  Apart from the above observations, all the applicant could say to explain why he never raised the matter of telephone calls was that “maybe” he had not mentioned this in his witness statements.  This is incredible given their obvious importance to the timeline. The applicant has produced nothing to support his contention that he made these telephone calls.

116. On the other hand, the respondent’s evidence was that Ching and Cheung were at the WG site between 2pm and 4pm on 8 May 2010.  Their evidence was straightforward and I believe them.  Indeed, nothing was produced by the applicant’s witnesses (save for their oral accounts) to challenge the respondent’s version of events.  I accept that Ching was at the WG site even though it was a Saturday and her working hours from her employment contract are stated as being up to 1pm on Saturdays.  Given that the applicant himself and a number of other contractors of the respondent were working that afternoon, it is inherently probable that their respective supervisors (Ching and Cheung) would also have attended the WG site.

117. Since Ching was at the WG site (on my finding) at the same time the applicant says he placed, inter alia, the first telephone call both she and Cheung could have been summoned to attend to the applicant in person after his injury.  That the applicant did not do this, but says he telephoned Ching instead (the first telephone call) is incredible and I do not believe it.

118. On balance, I find that the applicant did not make the telephone call to Oscar (there being no record of this as well as my having found that there was no one named Oscar on site), nor did he make the first telephone call or second telephone call to Ching.

(2) The 8 May text message

119. I have referred above to the 8 May text message.  On a clear reading of its content, the applicant is only seeking payment (see paragraph 52 above).  It is also the only piece of evidence that has been produced in these proceedings which was contemporaneous to the time the applicant alleges he was injured.

120. Counsel agreed that it does not indicate that the applicant suffered an injury at the WG site less than two hours earlier.  In my view it is inconceivable that the applicant would simply be seeking payment, in straightforward terms as displayed, and not mention his injury at all in the 8 May text message (if in fact he had been injured in the manner as described by both Brar and the applicant).

121. Another observation is the timing of the 8 May text message. That it was sent by the applicant at 4:40pm is, in my view, significant.

122. First, the applicant stated that he sent it at 4:40 pm when he was either home or on his way home.  At this time the job, on the applicant’s case, was still ongoing.  It would still be another one hour and twenty minutes before Brar would inform him that the work was completed.  Yet, it is not disputed that the applicant, by the 8 May text message, is chasing Ching for that day’s payment (as part of a lump sum) at 4:40pm.  In other words, payment for all three workers, including Brar who was, on his evidence, still in the process of working at the WG site.

123. The applicant’s evidence was that he would normally be paid after his work was completed – either on a monthly basis (5^th or 10^th of the month) or when requested.  As mentioned above, he stated that he would sometimes seek payment for work already done if he needed the money (see paragraph 21 above).  As documentary proof of the ad hoc payment structure, a text message[23] sent by the applicant confirms that he sent a payment request to Ching after he had completed one day of work.  This was evidently his practice, which was not disputed.

124. When questioned about the timing of the 8 May text message chasing for payment at a time when, on his own case, the work was not yet completed, he testified that he might chase for payment before work was completed where a particular worker would not be available or required the following day.

125. In spite of the fact that no evidence was led by the applicant to substantiate this contention, nor had this ever been mentioned in his witness statement, such practice could not have applied to the 8 May text message because at 4:40pm, on the evidence, there was nothing to suggest to the applicant that:-

(a) Brar (for whom the applicant was also seeking that day’s payment) was not available the following day; or

(b) the transportation job would indeed finish that day such that Brar would not be required the following day.

126. First, Brar’s evidence was that he spoke with Ching on 10 May 2010 (the next working day) and only then did he tell her that he did not wish to work that day.  There is no evidence that he told Ching or the applicant before 4:40pm on 8 May 2010 that he was not available to work on 10 May 2010.

127. It cannot be forgotten that Brar’s evidence was that he was, by this time, an employee of the respondent and “worked about twenty-six days in a month” starting May 2010[24] - this suggests that he would be working the following day for the respondent, unless he expressed this beforehand.  Indeed, Ching did call him on 10 May 2010 asking him if he was willing to take up a new job.  Brar’s evidence was that he told her only then that he did not want to work.

128. Second, at 4:40pm the applicant was at home or on his way home.  There is no evidence to suggest that he could have known from Brar, at that time, that the work would be completed that day.  In fact, the applicant’s evidence was that, before he left the WG site, he told Brar to “try his best” to transport the marbles before off-duty time.  That it was actually completed was only ascertained from Brar’s alleged telephone call at 6pm to the applicant.

129. It must also be remembered that the applicant’s case was that if work could not be finished by the end of the day, he would then have to return the following day to complete it after which the payment entitlement, for the completed work, would be triggered as part of his normal practice.  There is nothing to suggest that a different arrangement was in place for Brar given that he was doing the same job and also claimed to be a fellow employee, working the same duration (twenty-six days per month) and at the same rate (HK$500 per day) as the applicant.

130. From the above, I find that the applicant did not know at 4:40pm that Brar was unavailable to work on 10 May 2010 nor could he have known that the transportation job would indeed be completed that day such that Brar would not be required to return.  Accordingly, I reject the applicant’s contention that the applicant sent the 8 May text message before the work was actually completed because Brar would not be available or not required.

131. In my view, the only reasonable explanation for the applicant sending the 8 May text message at 4:40pm, seeking payment, was because the work had already been completed by that time.  This tallies with the applicant’s undisputed normal practice.  This also tallies with the evidence of Ching: “every time upon completion by the applicant of his works, he informed me which account the respondent shall pay him for the total fee for the work of the applicant and his Indian friends.”[25]

Work not completed at 6pm

132. Consistent with my above finding, I find that there was no evidence to confirm that the transportation job was completed at 6pm on 8 May 2010.  Apart from Brar’s oral testimony that he was at the WG site until 6pm that day, there is nothing else.  Indeed, there is no evidence to substantiate that he stayed on the site beyond 4:40pm.  No witnesses were called or other evidence produced to place Brar at the WG site beyond 4:40pm.  Nor was there any evidence produced that he contacted the applicant by telephone (as a result of which the applicant made the second telephone call to Ching).

133. I agree with the respondent that both the applicant and Brar had finished the transportation job by 4:40pm and I so find.  Logically, and from the undisputed evidence, upon such completion they would not have needed to stay on at the WG site and would have left the WG site at this time.  Indeed, I am not satisfied that Brar stayed beyond this time.  I do not believe him and reject his evidence in this regard.

Sick leave

134. I also do not believe that the applicant spoke to Ching on 10 May 2010 about sick leave.  Again there is no evidence of any telephone call nor did he mention this in his witness statement.  I prefer the evidence of Ching, who I believe, that the applicant never spoke to her on 10 May 2010 about his sick leave, as described.

135. I also believe Ching that when the applicant spoke to her on 12 May 2010 regarding hiring him for a possible job he never told her that he sprained his back at the WG site but simply that he sprained his back.

Credibility of the witnesses

136. As is clear from my above findings, I did not believe either the applicant or Brar’s evidence in relation to the events that transpired on 8 May 2010, particularly leading up to and after the alleged injury at 3pm.

137. I have already found that I did not believe that the applicant made the telephone calls as alleged or that he sent the 8 May text message before the transportation job was completed.

138. In relation to the injury itself, he was not a credible witness and I reject the applicant’s version of events, including that he suffered an injury as alleged on 8 May 2010.  For example, the applicant alleged that upon suffering his injury he was taken outside with Brar’s help and sat with some of the workers taking their tea break.  In addition, he alleged that a Chinese worker was asked to help Brar to move the last remaining 80kg marble tile due to the applicant’s inability to carry on with the job due to his alleged injury.  None of these witnesses were called to confirm the applicant’s version and I do not believe that these persons were present or acted as alleged by the applicant.

139. I also found Brar to be an unreliable witness. He admitted to being the applicant’s friend and was clearly prepared to give evidence to fit the applicant’s claim but which, on my finding, was incredible.  For example, I did not believe that he witnessed the applicant’s accident or that he stayed on at the WG site until after 6pm - I have found that the work was completed by 4:40pm. I also did not believe that a Chinese male worker helped him transport the last remaining 80kg tile.  Overall he was an unimpressive witness. 

140. On the other hand, I believe Cheung and Ching’s version of events on 8 May 2010. They gave straightforward evidence which was inherently credible. They were overall honest witnesses, trying their best to recount, inter alia, what happened on that day.  I believe that they were at the WG site and saw Brar and the applicant transporting tiles at the time the applicant claims that he had already been injured.  I also believe that Ching never received any telephone calls from the applicant in relation to the accident as described.

(2)  Medical Evidence

141. I note that the applicant did not seek medical assistance on 8 May 2010 because he said that after the accident he went home to rest and monitor his condition.  He says he only went to Tuen Mun hospital on 9 May 2010.

142. I am satisfied that the applicant went to the A&E Department of Tuen Mun hospital on 9 May 2010.  He complained that he sprained his back, which was recorded in the sick leave certificate issued to him on 9 May 2010. This is not disputed.  However, I am not satisfied that the applicant suffered this injury at the WG site on 8 May 2010 as alleged.

143. I have taken into account the medical documents referred to me by counsel.  I do not mention them all here but they do not affect my findings above.  One such document is the joint medical report dated 2 August 2012 (which was agreed between the parties). It is clear that the applicant’s account to Dr Chun and Dr Wong do not tally with the viva voce evidence given by either Brar or the applicant at trial. The following excerpt recites the “Medical History as given by (the applicant)” (paragraph 3):

“(The applicant) said that on 8/5/2010, while carrying a piece of marble weighing 60-70kg going up staircase, by two workers, he was the one below and when putting his right foot onto the next step, his right foot slipped. The worker lost control so he got the entire weight of the marble and he fell down backwards, while also at middle of the staircases (sic). He got stuck at the turn after falling down for 7-8 steps. At first, the low back and then the upper back landed. The marble stayed on the staircase and it did not fall on him…he was helped to stand up. There was severe pain at the low back and mid-back (less on the mid-back) as he sat down. There was no other symptom.He stayed for 30-45 minutes and then he took a taxi back home.” (Emphasis added)

144. Referring to their witness statements and respective testimony at trial, it is evident that neither Brar nor the applicant mentioned that the applicant landed on his low back, then upper back – it will be remembered that Brar’s observation of the applicant was that his ankle and foot were injured.  Similarly, that the joint medical report records that there was “no other symptom” contradicts what Brar says he observed (namely the injured foot and ankle).

145. Although Brar did say that the applicant told him that “he was feeling pain in his back” after twisting his ankle at the material time, this was only added in cross-examination.  I did not believe Brar that the applicant said this to him. It was never mentioned in his witness statement.  That he mentioned it, without any prior reference, three years later and during the trial lacks credibility on his part.

Conclusion on Issue (2)

146. On balance, I am not satisfied that the applicant suffered an injury on 8 May 2010 in the course of employment as claimed.  

147. From the above, and having considered all the evidence presented to me, Issue (2) is resolved in favour of the respondent.

Issue (3)

148. In light of my decision, I strictly do not need to deal with quantum but I do so in case I am held to be wrong on liability.

149. As stated above, I did not hear any live evidence in relation to the medical evidence.

Section 9 ECO

150. The applicant was 33 years at the time of the alleged accident and claims the sum of HK$62,400 under this head.  The claim is made up of three figures: (a) monthly earnings of HK$13,000; (b) a factor of 96 months (under s 7(1)(a) ECO); and (c) 5% being the loss of earning capacity.

Monthly earnings

151. As agreed, there is no dispute that the applicant earned HK$500 per day, for each day that he worked.  As was the applicant’s case, he said that he was an employee and worked on average twenty-six days per month from April 2010.  It is of course for the applicant to establish that he had worked twenty-six days per month.

152. His evidence was that he was working permanently for the respondent and had already been paid on a monthly basis (on the 5^th or 10^th of the month) by the time of the accident.

153. The respondent argues that the most that the applicant can establish that he worked per month is five days.  This is taken from the “Record for Delivery Workers”[26] produced by the respondent at trial.  Surprisingly, no evidence was produced by the applicant to evidence the payment of his earnings on the 5^th or 10^th of the month, or to substantiate his cash earnings (on his evidence) through his bank account.

154. Without such evidence, I cannot be satisfied that the applicant worked twenty-six days per month for the respondent.  The evidence shows that the applicant worked a few days in April 2010 and did (before his accident) or would (after his accident) have worked only a few days in May 2010.  That was the only evidence available, which I accept.  There was nothing produced to contradict this.

155. On this basis, and in view of the respondent’s submissions, I find that the applicant worked 5 days on average per month.  This is more consistent with the tenor of the respondent’s evidence during trial that the applicant would only be casually engaged for one or two days during the end of a project.

156. Given that a daily wage of HK$500 over 5 days (being HK$2,500) is less than the minimum figure set out at the Sixth Schedule of the ECO (see s.11(5) ECO), I adopt the minimum figure of HK$3,490 as the amount deemed to be the applicant’s earnings for the purposes of calculation.

Loss of earning capacity

157. As to the loss of earning capacity, which the respondent appeals (which I have referred to above), I have reviewed the joint report filed by both Dr Chun and Dr Wong.  I do, however, remind myself that medical opinion is useful, but it is for the court to come to its own conclusion.

158. I note from the other medical evidence that different medical officers, whilst suggesting that the applicant was not severely injured during this period, have observed “diffuse tender at L5/S1” in July 2010 and “tender over L4/5, L5/S1 region” in October 2010.  I am reminded by the following dicta of Deputy District Judge Harold Leong (as he then was) in Gurung Kamala v Hong Wei Ltd, DCPI 1660/2010, unrep, 26 March 2012:-

“78. However, when reading medical documents like records and reports, the court must be aware that it is not the usual duty of the attending doctors (and therapists) to judge whether a patient’s subjective complaints (e.g. pain and tenderness) are truthful or not.  A doctor is bound by “doctor-patient trust” and it is not a doctor’s role to “test” the evidence or to “cross-examine” the patient, so as to say, to ascertain their truthfulness…

80. Thus, the “medical history” of a patient is essentially subjective and may be treated, under the proper circumstances, as no more than hearsay evidence as what the patient has informed the doctor at the time of consultation.

81. The court may often be in a better position to assess the truthfulness of any subjective medical history in that it can, amongst others, review all available evidence and hear the opposing Counsel “testing” the evidence.”

159. In spite of the above observations, in January 2011 it was reported that the applicant suffered “mild disc protrusions at L4/5 and L5/S1 levels” which is consistent with the Board’s Certificate of Review of Assessment performed in February 2012 confirming “Back Sprain resulting in Mild Prolapsed Intervertebral Disc L4/5, L5/S1.”  It is as a result of this review that the applicant maintains that he is entitled to 5% loss of earning capacity and which the respondent appeals.

160. Whilst the Board may or may not have itself examined the applicant (of which I was not informed), that the diagnosis “mild disc protrusions at L4/5 and L5/S1 levels” appear in medical reports beforehand suggest that the applicant had been examined by a medical officer who made a conclusion on the same.  Such diagnosis is not simply a subjective expression of pain or tenderness but rather an objective diagnosis.  As such I cannot rely on Gurung Kamala.

161. Although the respondent maintains that 0.5% is an appropriate figure, I accept that the Board’s assessment at 5% under this head is more reflective of the applicant’s injuries, given the medical evidence produced.  I prefer the evidence of Dr Wong on this point, which supports the Board’s assessment and whose evidence is recited in the joint medical report.

162. I find, on the evidence, that the applicant has suffered 5% loss of earning capacity.  Accordingly, I would assess compensation under section 9 ECO as follows:-

  HK$3,490 x 5% x 96 months = HK$16,752

Under section 10 ECO

163. The applicant has claimed incapacity under this head for the full period of his sick leave, some 14 months from 9 May 2010 to 22 July 2011.  By the time of the joint medical report in 2012, both doctors had agreed that the applicant had reached the state of maximal medial improvement and that no further orthopaedic intervention was recommended.

164. That, of course, does not mean that he is entitled to recover four-fifths of his monthly earnings simply by producing the sick leave certificates.  I adopt the dicta of HH Judge Muttrie in L v Equal Opportunities Commission (unrep, DCEO No 6 of 1999) as confirmed in Ali Shoukat v Hang Seng Bank [2004] 1 HKLRD 415, 418:-

“If it is right, it means that the employer can look no further than the sick leave certificate… That cannot be right. Quite apart from that, in practice a sick leave certificate may be based on no great incapacity, depending on the attitude of the doctor, who may find it easier to issue the certificate and get an argumentative patient out of his surgery, than to go on listening to his complaints. It seems to me that the effect of sub-ss. (2) and (6) is quite simply that where the employee has a sick leave certificate from a doctor, he is deemed to be totally incapacitated and so entitled to a flat four-fifths of his monthly earnings; but this is a deeming provision rebuttable by medical evidence to the contrary. Certainly that is how it is treated in employees’ compensation claims.”

165. As to the evidence rebutting the deeming provision, Mr So submitted that the applicant could have taken up his previous job earlier as this was clear from the sick leave certificates themselves (heavy physical work not being restricted).  Similarly, that his injury was not regarded as serious and his recovery was also complete.  The applicant, on the other hand, claims to be still suffering the effects of the injury.

166. Whilst I agree with the respondent that the sick leave certificates do not indicate any particular advice by the attending doctor not to avoid heavy physical work, I am aware that such is not conclusive of the matter.  The sick leave certificates can only logically be read in light of the medical reports and the Board’s assessment, the Board no doubt having taken into account the medical findings to date.

167. The respondent further says that the applicant has been exaggerating his claim and that this was clear from Dr Chun’s opinion (in the joint medical report).  Whereas the applicant has produced fourteen months of sick leave certificates, Dr Chun says that six weeks’ sick leave is sufficient in light of the actual injuries suffered by the applicant.  Dr Wong supported the applicant’s claim.

168. On the evidence, I find that the respondent has failed to rebut the deeming provision in light of the unchallenged medical evidence at the material time, which I have considered above.  It must also be noted that the joint medical report was obtained long after the sick leave period ended.

169. Similarly, the surveillance video produced by the respondent is of no assistance given that it was taken some twenty-four months after the accident, and some ten months after the sick leave period ended.

170. Accordingly, I would assess compensation under section 10 ECO in favour of the applicant as follows:-

   HK$3,490 x 4/5 x 14.43 months = HK$40,289

Under section 10A ECO

171. The sum of HK$380 was agreed under this head.

Conclusion on Issue (3)

172. In case I am held to be wrong on liability, I would have found the quantum proved as follows:-

(a)	Under Section 9 ECO:	HK$16,752
(b)	Under Section 10 ECO:	HK$40,289
(c)	Under Section 10A ECO:	HK$  380
		=========
	Total:	HK$57,421

Decision

173. The applicant’s claim is dismissed.

174. I make an order nisi that costs of the application (including any costs reserved) are payable by the applicant to the respondent, to be taxed if not agreed.  I grant a certificate for counsel. 

175. The applicant’s own costs are to be taxed in accordance with Legal Aid Regulations.

176. I thank both counsel for their assistance to the court.