THAPA KOMAL v. NORMAN LIANG t/a J. LIANG & SON

DCEC352/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 352 OF 2006

J U D G M E N T

1.  The Applicant claims against the Respondent for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance for injuries suffered in an accident that took place on about 9 am on 17 October 2005 arising out of and in the course of employment as the Respondent’s employee.

2.  The Respondent denied the Applicant was his employee on the day of the accident.  The Respondent disputed liability on this ground.

Background

3.  The Applicant was born in Hong Kong on 12 July 1980.  He left Hong Kong for Nepal soon after his birth and received education in Nepal up to secondary level.  In 1996, he returned to Hong Kong.  He has been living in Hong Kong since then.  He is married with two children living in Hong Kong.

4.  At the time of the accident, the Applicant had been working as a general labourer at construction sites for about six to seven years, earning a daily wage of $420.  He had been working for the Respondent prior to the accident since 20 December 2004 at the Respondent’s construction site located at Lamma Power Station belonging to the Hong Kong Electric Company (hereinafter referred to as “the site”).

Liability

Undisputed Facts

5.  The site at Lamma Power Station was divided into the new site and the old site.  The Respondent was the main contractor at the old site and a company called TDK (Taikei Dengyo Kaisha Limited) was the main contractor at the new site.  The Applicant was given a pass to work at the new site.  This pass at the new site is a ‘LMX’ pass, while the pass to work at the old site is a ‘LMA’ pass. 

6.  It is not disputed that the Applicant was absent from work between 12 and 16 October 2005.  He returned to work in the morning of 17 October 2005 and boarded the Respondent’s ferry at Tsim Sha Tsui for the Lamma Power Station.  There was a security checks on the ferry and upon arrival at the site, the worker’s pass would be checked again.  The Applicant changed into his work clothes upon arrival at the new site before attending the toolbox meeting for job assignment for the day and to sign on the attendance register.

Disputed Facts

The Applicant’s Case 

7.  The Applicant, Mr Thapa Komal, claimed he had attended Kowloon City Magistracy between 12 October and 14 October 2005 for a trial involving himself and he had orally asked his work supervisor, Mr Kwong Wing-yeung (“Mr Kwong”) for three to four days leave before 12 October 2005.  He claimed that his friends, Mr Gurung Khelendra and Mr Gurung Durga who were also working at the site for the Respondent were his witnesses at the trial and they had also asked for leave of absence from Mr Kwong prior to 12 October 2005.  He claimed that as Sunday was a rest day, he had reported for duty on Monday, 17 October 2005.  Mr Thapa, further claimed he was assigned during the toolbox meeting that morning to work at the old site and Mr Kwong had taken him in his van, JL33, and drove him over to the old site from the toolbox at the new site.  He was then dropped off at the security post just outside the old site at point B of Exhibit A1.

8.  According to Mr Thapa, he was told that a Chinese supervisor would come to pick him up and take him to the area where he was assigned to work that day.  Mr Thapa claimed that he started walking into the old site and as he came up to point D on Exhibit A1, he greeted a friend, Mr Thapa Chandra Bahadur, AW2, who greeted him back.  He carried on walking when he was suddenly hit by a hard object from behind at his waist which caused him to fall forward onto the ground, landing and hurting his left knee and chest.  He turned round and found it was Mr Kwong’s van which had knocked him down.  He then used his mobile phone to call the police for help.  He was first taken to the First Aid Station at the old site, later on, he was taken to Queen Mary Hospital for treatment.

9.  Mr Thapa called two witnesses, Mr Thapa Chandra Bahadur, AW2, and Mr Gurung Khelendra, AW3.  AW2, who was working for Paul-Y  Construction, claimed in his evidence that he was working at the old site when Mr Thapa Komal greeted him.  Soon after the greeting, he said he saw a van passing by in Mr Thapa Komal’s direction.  Later on, he noticed Mr Thapa Komal was on the ground.  He admitted he did not witness the accident and he was 20 to 25 feet away from the van at the time.

10.  AW3, Mr Gurung Khelendra, gave evidence in court and claimed he had asked for leave of absence from the Respondent’s supervisor, Mr Kwong, on 10 or 11 October 2005 during the crossing on the ferry after work.  He said he told Mr Kwong he had to do some work from 12 to 14 October 2005, he claimed that Mr Kwong had given his oral permission for his leave of absence.  He returned to work on 17 October 2005 and he claimed Mr Kwong had assigned him to work at the new site, but before starting work he was told to go to the old site and to take out tools from a container at the old site.  He claimed he was taken to the old site in a car driven by one of his Chinese co-workers.  While he was removing tools from the container, he claimed he witnessed Mr Thapa Komal being knocked down from behind by a white van while he was walking on the road at the old site. 

The Respondent’s Case

11.  Mr Kwong denied that Mr Thapa had applied for leave of absence for 12 to 14 October 2005.  Mr Kwong further denied that he had assigned any duty to Mr Thapa on the morning of 17 October 2005.  In fact, Mr Kwong claimed he had dismissed Mr Thapa that morning because Mr Thapa had failed to turn up at work since 12 October 2005.  He denied Mr Thapa had orally applied for three or four days leave before 12 October 2005.  Mr. Kwong claimed that on Saturday, 15 October 2005, he had instructed Miss Ng Sze-man, the site safety supervisor, who was also put in charge of keeping the site attendance record, to inform the head office in Shau Kei Wan and to calculate the balance of wages for Mr Thapa.  He claimed he was given the cheque for Mr Thapa’s balance of wages on Monday, 17 October 2005 during the ferry crossing.  He claimed he gave Miss Ng the cheque at the toolbox meeting and told her to take Mr Thapa to the site office at the new site and to retrieve from Mr Thapa the site pass and the helmet and to give him the cheque.

12.  Mr Kwong claimed that he soon received a call from Miss Ng from the site office and was told that Mr Thapa had refused to surrender his site pass and was making a scene.  He then went to the new site office and told Mr Thapa to get into his van with the intention to drive him to the East Gate at the old site where Mr Thapa would leave the site and walk to the Yung Shue Wan ferry pier to take the ferry back to Central.  While they were on their way to the East Gate, Mr Kwong claimed that Mr Thapa suddenly jumped out of the van after the van had crossed from the new site to the old site.  Mr Kwong claimed that he immediately stopped the car and got off the van.  He said he then saw Mr Thapa knocking himself at the front of the van and laid down in front of the van. 

13.  He claimed Mr Thapa was issued a site pass to work at the new site only (a LMX pass), he did not possess a pass to the old site (a LMA pass).  He claimed, without this pass, no one could access the old site and workers without a LMA pass is not allowed to work at the old site.

14.  His evidence was supported by Mr Tsun Kwan-wah, the Respondent’s supervisor at the old site.  Mr Tsun claimed that he did not receive any instructions from Mr Kwong that any new site workers would be assigned to work at the old site on 17 October 2005.  He claimed his workers at the old site had taken up all the duties at the old site.  He also said that he was not told to pick up any workers from the new site on the morning of 17 October 2005.  He admitted that he had attended the scene because Mr Kwong had called him after the incident.

Issues on Liability

15.  To determine if the Respondent was liable, the Applicant has to show he was injured in the course of employment to the Respondent.  The issue as to whether the Applicant was an employee of the Respondent at the time of the accident causing the injuries is central to this claim. 

16.  The relevant issues to the question referred to above are:-

a)       Did the applicant obtain leave of absence to attend the trial at the Magistracy on 12 to 14 October 2005 and whether he was dismissed due to his absence without leave from work between 12 to 15 October of 2005.

b)       What had happened at the old site that led to the Applicant’s injuries and whether AW2 and AW3 witnessed the accident.

a) Did the Applicant obtain leave of absence to attend the trial at the Magistracy on 12 to 14 October 2005 and whether he was dismissed due to his absence from work without leave

17.  According to Mr Kwong, the supervisor of the Respondent, he had not received any leave application from Mr Thapa Komal prior to 12 October 2005; therefore on Saturday, 15 October 2005 when Mr Thapa failed to report for duty, he had instructed Miss Ng to inform the Accounts Department of the Respondent’s office in Shau Kei Wan to work out the balance of payment for Mr Thapa and a cheque was then prepared by the Accounts Department for Mr Thapa payable on 20 October 2005, the usual payday for the Respondent’s employees.  Mr Kwong was given the cheque on Monday morning when he took the company ferry to Lamma Power Station.  He claimed that Mr Thapa was not the only one who had been absent for more than three days.  He accepted there were other employees who had done the same.

18.  Under clause 2(c) of the Employment Contract between Mr Thapa and the Respondent dated 20 December 2004, an absence of three days without notice or consent of the Respondent would be regarded as a resignation on the employee’s part (see page 100 of the bundle).  It was under this clause that Mr Kwong had dismissed Mr Thapa on the morning of 17 October 2005.

19.  Mr Thapa, however, told a very different story.  He said he had informed Mr Kwong he had to attend court from 12 to 14 October 2005 in or about September 2005.  He also claimed he had further reminded Mr Kwong of his leave of absence on 10 October 2005 and that Mr Kwong had approved his leave.  He claimed he had also overheard his co-workers and friends, Mr Gurung Khelendra and Mr Gurung Durga, asking for leave for the same period, for they were his witnesses at the magistrate trial.  Mr Thapa admitted that the trial was fixed for trial for only two days on 12 October and 13 October 2005.  He admitted he was acquitted at the end of the trial. 

20.  Under cross-examination, however, Mr Thapa claimed that he had asked for three to four days leave from Mr Kwong, correcting his earlier evidence under his witness statement of ‘three days’.  The evidence of AW3, Mr Gurung Khelendra, is similar to Mr Thapa’s.  Mr Khelendra claimed he had only asked for three days leave between 12 to 14 October 2005 and he admitted he did not give evidence at the trial because it was found to be unnecessary.  The Respondent had obtained a letter from the Police Department which confirmed the trial dates to be 12 to 13 October 2005 (see page 220 of the bundle).  As  Mr Thapa was acquitted on 13 October 2005, on 14 October 2005 his lawyers made an application for costs.

21.  Based on such facts, it was unlikely for either Mr Thapa or Mr Gurung Khelendra to have asked for three days leave to attend the trial because the trial was originally fixed for only two days.

22.  According to the evidence of Mr Kwong, the Respondent’s site workers often do not ask for prior leave of absence and they often left the Respondent’s employment for another job without giving notice to the Respondent and this was why why clause 2(c) was included in the Employment Contract.  Mr Kwong claimed that the Respondent would require an explanation and ask for evidence in support for the absence when the worker returned to work.  Such evidence may include sick leave certificates.  If the Respondent found the worker’s absence without leave was over three days, the Respondent would regard the worker to have resigned or the Respondent would dismiss the worker if no satisfactory explanation was given.  Mr Kwong explained that that was why he had reported to the head office Accounts Department on 15 October 2005, the fourth day of Mr Thapa’s absence at work to work out the balance of Mr Thapa’s wages up to 11 October 2005.

23.  Under the Employment Contract, therefore, the Respondent was fully entitled to regard Mr Thapa to have resigned when he failed to obtain the Respondent’s consent for his leave of absence prior to his leave or to supply the Respondent with a reasonable explanation for his leave of absence.

24.  The evidence of the letter from the police at page 220 clearly stated that the dates fixed for trial was two days, from 12 to 13 October 2005.  The trial apparently only lasted for two days.  The third day, 14 October was for an application for costs which the Magistrate had allowed.  Therefore, Mr Thapa’s attendance at the Magistracy on the third day is understandable, but it is not something that could be anticipated unless Mr Thapa had a crystal ball and knew beforehand he was going to be acquitted and that his lawyers would be asking for costs on the third day.  On this basis, it would not have been likely for him or his witness, AW3, to have asked for three days leave of absence or three to four days as claimed by Mr Thapa under cross-examination.  He further failed to explain why he did not return to work on 15 October 2005, Saturday, which was a workday for him at the construction site.

25.  Based on the aforesaid reasons, I am not convinced that Mr Thapa or AW3 had asked for leave of absence from Mr Kwong to attend court on 12 October 2005.  I am satisfied that Mr Kwong did dismiss Mr Thapa on the morning of 17 October 2005 when he failed to give any satisfactory reasons for his absence for four days between 12 to 15 October 2005.

b) What had happened at the old site that led to the Applicant’s injuries and whether AW2 and AW3 witnessed the accident

26.  Mr Kwong claimed he had instructed Miss Ng Sze-man to take Mr Thapa to the site office to complete the procedure.  Such procedure included the surrender of the site pass and the helmet and to give Mr Thapa his cheque.  Miss Ng’s evidence was that she did receive from Mr Kwong a cheque for Mr Thapa and she had taken Mr Thapa to the site office and demanded from him the site pass and the helmet.  However, Mr Thapa began to make a scene.  She then called up Mr Kwong and asked him to handle the situation.  Mr Kwong then returned to the site office, took Mr Thapa in his van and drove him to the old site.  According to Mr Kwong, he was going to take him to the East Gate at the old site and while his van arrived at the old site, Mr Thapa suddenly jumped off the van.  Mr Kwong immediately braked and stopped the car and got out of the van.  He claimed Mr Thapa then knocked himself against the front of the van and laid down in front of the van.

27.  Mr Thapa, on the other hand, denied he was dismissed that morning, he said he was assigned to work at the old site.  He was knocked down by Mr Kwong’s van when he was walking along the road at the old site waiting to be picked up by the supervisor.

28.  Mr Thapa’s two witnesses, AW2, Mr Thapa Chandra Bahadur, and AW3, Mr Gurung Khelendra, claimed to be witnesses to the accident.  However, under cross-examination, AW2 admitted he did not see the impact of the accident and that he had only seen Mr Thapa on the ground afterwards.  From what he described of the incident, the van had passed him by after Mr Thapa had walked on and then the van hit Mr Thapa on the back.  If that is the case, it is unlikely for AW2 to have seen the impact if he was behind the van when the accident took place.  The van would have blocked his view of Mr Thapa who was in front of the van.

29.  As to AW3, Mr Gurung Khelendra, he marked on Exhibit A1 his position at the time of the accident.  According to the scale agreed by the parties’ legal representatives, 1 cm to 40 metres on Exhibit A1, Mr Gurung Khelendra would have been 100 metres away from the site of the accident.  At that distance, it is unlikely that he could have seen clearly what happened between Mr Thapa and the van.  Furthermore, I am not convinced he was taking tools at the old site when he was only allowed to work at the new site and when the Respondent had sufficient tools in the new site toolbox. 

30.  I am further not convinced that Mr. Khelendra was driven by a co-worker to the old site when it was Mr Kwong’s evidence that only the three supervisors at the site were assigned with a car to drive at the site and only he himself was allowed to drive between the old and the new sites.

31.  I am not impressed with Mr Thapa and Mr Gurung Khelendra’s evidence and I reject both their evidence on the accident.  I find Mr Thapa’s evidence on how his police statement was taken to be a total figment of his own imagination.  This statement was clearly stated to have been taken and recorded by the police officer in English.  It is not a police practice to accept a statement written by a friend of the witness or by the interpreter of the witness even if the witness was accompanied by his solicitor.  It is also not the practice for the police  to accept a statement recorded by a legal representative of the witness.  It is both inconceivable and incredible for a witness statement to have been stated to be recorded by the police officer’s own handwriting when it was recorded by the witness’s interpreter.  It must be noted that the statement bore the signatures of four persons, indicating that the police officer was the statement-taker.  Mr Thapa himself had signed on the statement in the presence of his solicitor, Mr Chung, and in the presence of an interpreter.

32.  I am not satisfied that the Applicant has shown on a balance of probabilities that he was an employee of the Respondent at the time of the accident.  There was no explanation as to why Mr Kwong would drive Mr Thapa over to the old site but failed to take him to the area that he was assigned to work.  There was no explanation as to where Mr Thapa was supposed to be met at the old site by the supervisor.  There was no explanation as to why he was walking aimlessly in the old site before the accident or why Mr Kwong would drive up to him if he was dropped off only minutes before on the same stretch of road; and there was further no explanation as to why he was hit by Mr Kwong’s van from behind when there were few or no other pedestrians on the road and when the old site was guarded by security guards who would refuse entry of persons not in possession of a valid pass to the old site.  As Mr Thapa possessed only a pass to the new site, he would have been refused entry to the old site, let alone walking along the road in the old site not knowing where he was supposed to go.

33.  I reject the Applicant’s evidence on how he came to be at the old site and accept the Respondent’s witness’s evidence that Mr Thapa was dismissed that morning by Mr Kwong because of his four days absence from work without leave.  I believe that Mr Thapa had jumped off the van when Mr Kwong was taking him to the East Gate after he was dismissed.  It is possible he had jumped off the van in protest of his being dismissed.

34.  In any event, the important issue is that the Applicant was no longer the employee of the Respondent at the time of the accident, therefore, Mr Thapa received his injuries not in the course of his employment, nor did the accident arise out of the employment. 

35.  Whether he received his injuries when he jumped off the van or whether he was knocked down or whether he had knocked himself against the van is not an issue for this court even though it is most probable that he had received his injuries when he jumped off the car and hit the ground.

36.  For reasons set out above, I dismiss the Applicant’s claim and I award costs to the Respondent to be taxed if not agreed with Certificate for Counsel.  Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.