SHAFIQ MOHAMMAD v. WONG CHOR WAI AND ANOTHER

DCEC 1403/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1403 OF 2008

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

---------------------- 

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

J U D G M E N T

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

Introduction

1.  This is an application for employees’ compensation in respect of an accident on 5 April 2008. The application is brought against the 1^st Respondent in his capacity as the Applicant’s employer. Insofar as the 2^nd Respondent is concerned, the application is brought against the company in its capacity as the principal contractor, pursuant to section 24 of the Employees’ Compensation Ordinance, Cap. 282 (‘the Ordinance’).

2.  In the 1^st Respondent’s Answer filed in this application, he admitted being the Applicant’s employer. Moreover, in both the Form 2 and the 2^nd Respondent’s Answer, the 2^nd Respondent admitted its role as the main contractor and admitted having sub-contracted the work in question to the 1^st Respondent. Therefore, there is no dispute insofar as the parties’ respective roles are concerned.

3.  On 5 January 2009, the Employees’ Compensation (Ordinary Assessment) Board (‘the Board’) assessed that the loss of earning capacity permanently caused to the Applicant in respect of the injury he sustained as a result of the accident on 5 April 2008 was 0.5%. This assessment was reviewed by the Board on 6 April 2009 and the loss of earning capacity was revised to 1%. The Applicant does not accept this assessment and has lodged an appeal against the finding of the Board under section 18 of the Ordinance.

4.  Initially, the 2^nd Respondent was legally represented. However, since March 2009, the 2^nd Respondent started to act in person and has since been absent in the hearings that followed. At trial, the 2^nd Respondent was also absent but as I was satisfied that the 2^nd Respondent had been duly notified of the trial date and had been duly served with all the relevant papers, I directed that the trial should proceed in the absence of the 2^nd Respondent.   

The Accident

5.  On 5 April 2008, the Applicant worked as a labourer at a site in Fei Ngo Shan. That morning, while the Applicant, as instructed by the 1^st Respondent, was holding the base of a marble pillar when it was being lowered onto a wheeled board, the pillar suddenly swung towards the Applicant. As a result, the Applicant’s right knee was caught between the base of the pillar and the wall behind him. In trying to push away the pillar to release his knee, the Applicant’s right hand was caught between the base of the pillar and the wall.

6.  As mentioned above, it is not disputed that, at the time, the Applicant was the 1^st Respondent’s employee. In fact, when the accident happened, the 1^st Respondent was on the site and was directing the work of the Applicant. On the evidence before me, I am satisfied that, on 5 April 2008, the Applicant sustained the injury by accident arising out of and in the course of his employment with the 1^st Respondent.

The Applicant’s Injury

7.  After the accident, the Applicant attended the Accident & Emergency Department of Ruttonjee and Tang Shiu Kin Hospitals for medical treatment. Tenderness and bruise at his right ring finger were noted and the range of movement of the finger was limited. There were also tenderness and mild swelling of the right knee. X-ray examination showed an undisplaced comminuted fracture of the proximal phalanx of the right ring finger while the right knee was normal. The Applicant was given an orthosplint for 4 weeks. He then received physiotherapy and occupational therapy treatments.

8.  As a result of the accident, the Applicant was granted sick leave from 5 April 2008 to 26 October 2008.  

The 1st Respondent’s Case 

9.  The 1st Respondent stated that the Applicant was employed by him as a casual worker and, on the day of the accident, it was the first time the Applicant worked for him. According to the 1^st Respondent, the site on which the accident took place was the site of the principal contractor, that is, the 2^nd Respondent. The agreement he had with the 2^nd Respondent was that he would only be responsible for dismantling, installing and transporting 2 marble pillars. He said that under the agreement, he was not responsible for supplying the material or providing the insurance and he would not be held responsible for any other liabilities.

10. The 1^st Respondent said that pursuant to the agreement, he would receive HK$7,000 from the 2^nd Respondent for the work he carried out upon its completion. At trial, the 1^st Respondent told the Court that although he himself has not been paid the agreed sum of HK$7,000 by the 2^nd Respondent, he has already paid the agreed daily wage of HK$400 to the Applicant by giving it to the Applicant’s friend who introduced the Applicant to work for him.  

11.  The 1^st Respondent also relied on the Form 2 completed by Ms. May Leung, the manager of the 2^nd Respondent, to argue that it was the 2^nd Respondent, the principal contractor, who should be held liable to pay compensation in respect of the Applicant’s injury as the Form 2 was completed and submitted by the 2^nd Respondent.

12.  In this connection, it would appear that the 2^nd Respondent had taken out an insurance policy in respect of the site in question and had therefore put down the name of the relevant insurance company and the policy number in the Form 2. However, it later turned out that the accident took place outside the insurance period and therefore, according to the insurance company, the policy was not applicable to the Applicant’s accident.

The Issue of Liability

13.  Section 5(1) of the Ordinance reads,

“Subject to subsections (2) & (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”  

14.  In the present case, the 1^st Respondent admitted being the employer of the Applicant. He further admitted making payment of the agreed daily wage of HK$400 to the Applicant. There is also no dispute and, it is clear from the evidence of the Applicant, which I accept, that the accident arose out of and in the course of the Applicant’s employment with the 1^st Respondent when the Applicant helped to move the marble pillar.

15.  In the circumstances, I cannot see how it can be argued that the 1^st Respondent is not liable to pay compensation to the Applicant. Even if the 2^nd Respondent were the one to look after the workers’ insurance as claimed by the 1^st Respondent, this could not act as the 1^st Respondent’s shield to allow him to avoid his liability to pay compensation to the Applicant and it could not change the fact that the 1^st Respondent was indeed the Applicant’s employer at the time.

16.  I now turn to the case of the 2^nd Respondent. Section 24(1) of the Ordinance reads,

“Where any person (in this section referred to as the principal contractor), in the course of or for the purposes of his trade or business, contracts with a sub-contractor for the execution by or under the sub-contractor of the whole or any part of any work undertaken by the principal contractor, the principal contractor shall be liable to pay to any employee employed by that sub-contractor or by any other sub-contractor in the execution of the work any compensation under this Ordinance which the principal contractor would have been liable to pay if that employee had been immediately employed by him; …”

17.  On the evidence before me, I find that the 2^nd Respondent was the principal contractor in respect of the work carried out by the Applicant on the day of the accident and therefore, the 2^nd Respondent is liable to pay compensation to the Applicant under section 24(1) of the Ordinance.

18.  My findings are therefore that both the 1^st and the 2^nd Respondents are liable to pay compensation to the Applicant in respect of the injury he sustained on 5 April 2008 and the liability is several. (see Hip Hing Construction Co. Ltd. v Wong Leung Tak & Anor. [1990] 2 HKC 119, at 134F-G)

The Appeal under Section 18

19.  On 21 July 2009, the Applicant was examined by Dr. Wong Chin Hong, a specialist in orthopaedics & traumatology. According to Dr. Wong, the Applicant complained about right knee pain after walking for more than one hour and after climbing more than one flight of stairs. He also complained about right hand pain around the base of the right ring finger and the 4^th metacarpal bone when lifting objects weighing over 2 or 3 kg. On examination, Dr. Wong noted reduced grip power in the Applicant’s right hand and reduced walking and climbing tolerance in his right knee. Dr. Wong opines that the reduced strength is due to residual pain. His assessment is that the Applicant suffers 2% loss of earning capacity as a result of the injury. In respect of the sick leave granted between 5 April 2008 and 26 October 2008, Dr. Wong opines that the sick leave granted was appropriate.

20.  Having considered all the relevant matters and having made reference to the scale of percentages specified in the First Schedule of the Ordinance, I allow the Applicant’s appeal lodged under section 18 of the Ordinance and I assess that the Applicant suffers a permanent loss of earning capacity of 2% as a result of the injury he sustained on the day of the accident.

The Monthly Earnings

21.  Section 11(2) of the Ordinance reads,

    “Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

22.  Since the Applicant met with the accident on his first day of work with the 1^st Respondent, the above sub-section is applicable in this case. At trial, the 1^st Respondent said that he has had 25 years’ experience in the trade and, generally speaking, it is difficult to predict what kind of project he would be given. He said that there are no fixed jobs for the casual workers employed by him as much would depend on the urgency of the project and on how much technical work, instead of manual work, would be required. The 1^st Respondent told the Court that in his experience, casual workers employed by him would, on average, work for 8-10 days per month. Further, he said that he has never required any casual worker to work on each and every day in a month as there is a lot of work that technical workers do, for example, installation and polishing tasks, but which does not require the assistance of any casual labourers. The 1^st Respondent stated that even for technical workers like himself, he would only work for 20-22 days per month on average.

23. In his submissions, Mr. Massie for the Applicant urges the Court to make reference to the Quarterly Report of Wage and Payroll Statistics published by the Census and Statistics Department in June 2008 (‘the Report’) when determining the average monthly earnings of the Applicant at the time of the accident. These figures showed that for miscellaneous non-production workers in the transport services, the average monthly salary was HK$8,986 and the average number of standard working days per month was 25 whereas in the architectural/surveying/engineering firms, the average monthly salary for such general workers was HK$10,122 and the average number of standard working days per month was 25.

24. In the alternative, Mr. Massie seeks to rely on the Form 2 completed by the 2^nd Respondent, which stated that the Applicant’s average number of working days per month was 22 days. This information, however, was amended by the 2^nd Respondent on 20 January 2009 and it was then stated that the average was 8-10 days.

25. After careful consideration, I decline to adopt the figures published in the Report as the basis to determine the Applicant’s average monthly earnings at the time of the accident for, to say the least, there was too much generalisation concerning these figures. The average number of working days per month (22 days) as originally reported in the Form 2 also does not assist much as the 2^nd Respondent amended the figure to “8-10 days” subsequently.

26. On this issue, I accept the evidence of the 1^st Respondent and I find that, on average, casual workers or labourers like the Applicant employed by him would only work for 8-10 days per month. The 1^st Respondent said such was the case because of the nature of the employment and because of the element of uncertainty in their trade. However, for the calculation of the Applicant’s average monthly earnings, I would adopt 10 days as the basis, which should be more favourable to the Applicant.

27. Therefore, with a daily wage of HK$400, the average monthly earnings of the Applicant at the time of the accident would be HK$400 x 10 = HK$4,000.

Compensation under Section 9

28. The Applicant was born on 10 May 1970 and was 37 years of age at the time of the accident. In accordance with sections 7(1)(a) and 9(1)(b) of the Ordinance, the compensation payable to the Applicant is :

    HK$4,000 x 96 x 2% = HK$7,680.

Compensation under Section 10

29. The Applicant was granted a total of 205 days of sick leave from 5 April 2008 to 26 October 2008. This sick leave period was considered necessary and appropriate by both the Board and Dr. Wong. The compensation under section 10 of the Ordinance should therefore be :

     HK$4,000 x 205/30 x 4/5 = HK$21,867

Medical Expenses

30. The Applicant makes a claim of HK$440 under section 10A of the Ordinance and there are receipts to support the expenses incurred. I therefore allow a sum of HK$440 under this section.

Conclusion

31.  The total amount of compensation payable to the Applicant in respect of the accident on 5 April 2008 is :

(1) under section 9 :	HK$ 7,680
(2) under section 10   :	HK$ 21,867
(3)  under section 10A :	HK$ 440
Total :	HK$ 29,987

32. The Applicant is entitled to interest on the sum of $29,987 at half the judgment rate from the date of the accident (5 April 2008) to the date of this judgment and thereafter, at the judgment rate until payment.

33. I will also make a costs order nisi, to be made absolute in 14 days, that the costs of this application are to be paid by the Respondents, to be taxed if not agreed. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.