CHEUNG CHI PING v. KING TIN ENGINEERING & TRANSPORTATION LTD AND OTHERS

DCEC 1321/2018

[2021] HKDC 12

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1321 OF 2018

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J U D G M E N T

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BACKGROUND

1.  The is the trial of the applicant’s employees’ compensation claim arising out of an accident which happened on 26 September 2016 made pursuant to the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”).

2.  It is undisputed that:-

(1)  The 1^st respondent was the main contractor of a work project which involved removal of, among other things, telecommunication wires at the carpark rooftop (“the Rooftop”) of Set Win Automobile Plaza in Yuen Long (“the Yuen Long Project”).

(2)  The 1^st respondent had sub-contracted the Yuen Long Project to the 3^rd respondent, which further sub-contracted the project to the 2^nd respondent.

(3)  At the material time, the applicant was removing some electrical wires which were attached to the wall next to a set of staircase leading to the Rooftop while he was standing on a kerb along the said wall, during which he fell therefrom and suffered injury to his right foot.

AN OVERVIEW OF THE PARTIES’ RESPECTIVE CASES

The applicant’s case

3.  In a gist, the applicant’s case may be summarised as follows:-

(1)  He started to work as a general labourer in around 2014, and he was employed by the 1^st respondent as such for around a year since then;

(2)  After the applicant had left the 1^st respondent’s employment in 2015, his good friend Tse Shing (“Tse”) proposed, and he accepted, to start a new company known as 天利工程 (“Tin Lee”) so as to take up work to be sub-contracted by the 1^st respondent;

(3)  Tse was the person in charge of Tin Lee; 

(4)  Tse and the applicant agreed that Tin Lee would pay the applicant and all other workers employed by Tin Lee at a daily rate of $800.  While Tse also agreed to share profit of Tin Lee with the applicant, they did not have any agreement on the sharing ratio – Tse was at liberty to share whatever amount of profit with the applicant which Tse thought fit;

(5)  Upon the instructions of Tse, the applicant closed down Tin Lee in April 2016;

(6)  After the closing down of Tin Lee, the applicant had worked as an employee and as an employee only;

(7)  During a dinner gathering held in around June 2016, Ng Kin Fai (“Ng”), the director and shareholder of the 2^nd respondent, invited the applicant to work for him at a daily wage of $800, to which the applicant agreed;

(8)  Pursuant to the aforesaid agreement, the applicant worked for the 2^nd respondent as an employee for around 10 days in August 2016 at a site in Repulse Bay (“the Repulse Bay Project”), and received $8,000 cash from Ng as his wages;

(9)  On around 20 September 2016, the applicant worked for the 2^nd respondent at the Rooftop as its employee in the Yuen Long Project.  He had not participated in the negotiation of contract price of this project.  Neither did he discuss with Ng on where scaffoldings should be erected at the Rooftop; all such decisions were made by Ng;

(10)  After the accident, the 2^nd respondent submitted a Form 2 to the Labour Department on its own initiative, and confirmed the applicant’s employee status therein.

4.  On the other hand, the respondents contended as follows:-

(1)  The applicant informed Ng that he (the applicant) was running Tin Lee which accepted demolishing jobs as its business;

(2)  In around mid-2016, the applicant proposed to Ng, which Ng accepted, that they might cooperate in that whenever either of the party successfully obtained a project, the other party would finish the project together with the first-mentioned party.  They (the applicant and Ng) would not take wages, but the net profit or loss earned or suffered out of the project would be shared or borne equally;

(3)  The applicant and the 2^nd respondent cooperated for the first time in around August 2016 in the Repulse Bay Project, in which the applicant was in charge of the demolition part of the project whereas Ng took care of the part concerning scaffolding work.  After the completion of the project, they had shared the net profit of $22,000 equally;

(4)  In mid-2016, Chan King Yu (“Chan”), the managing director of the 3^rd respondent, approached Ng and offered the 2^nd respondent to do the Yuen Long Project at the contract price of $25,000.  After a site inspection conducted by the applicant and Ng, upon the suggestion of the applicant, Ng made a counter-offer of $35,000 which was accepted by Chan;

(5)  The applicant had employed his wife and 2 other demolition workers to assist in the Yuen Long Project.  All tools were provided by the applicant himself;

(6)  The applicant had discussed with Ng on where scaffoldings should be erected at the Rooftop before the demolition work began;

(7)  After the accident, the applicant requested Ng to report the accident to the Labour Department, which Ng initially refused because Ng took the view that the applicant was not the 2^nd respondent’s employee.  Ng subsequently submitted a Form 2 to the Labour Department because of the repeated requests made by the applicant;

(8)  Although Ng and Chan took the view that the applicant was not an employee of the 2^nd respondent at the material time, they had paid him more than $100,000 altogether as compassionate payment.

THE ISSUES

5.  The issues on liability which this court has to resolve in this case are as follows:-

(1)  Whether, at the time of the accident, the applicant was the 2^nd respondent’s employee;

(2)  Whether the injury to the applicant was attributable to his serious and wilful misconduct;

(3)  Would the existence of any “added peril” in the present case relieve the respondents’ liability (if any).

6.  The issues on quantum are as follows:-

(1)  As far as section 9 compensation is concerned:-

(a)  what amount of monthly earnings should be adopted; and

(b)  what the applicant’s loss of earning capacity was;

(2)  In relation to the applicant’s claim under section 10 of the Ordinance:-

(a)  whether it is open to the respondents to argue that the number of days of sick leave should be less than that certified in Form 7 and Form 9;

(b)  whether the award should be calculated on the basis of 1 year’s sick leave only;

(3)  whether the compensation ordered to be paid (if any) may be set off against the payments made by Ng and Chan to the applicant.

7.  For the claim made under section 10A of the Ordinance, despite their initial disagreement, parties have agreed quantum at $15,000.

LIABILITY

The relationship between the applicant and the 2^nd respondent

(a) The law

8.  This court has been referred to the case of Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951, in which the Court of Final Appeal discussed the applicable principles which should be applied in deciding whether any employer-employee relationship existed.  In paragraph 17 of the Judgment, Ribeiro PJ referred to what Cooke J held in Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 at 184-185 which was quoted by the Privy Council in Lee Ting Sang v Chung Chi Keung[1990] 2 AC 374 at 382E-G as follows:-

“... the fundamental test to be applied is this: ‘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 compiled and perhaps no exhaustive list can be compiled 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 that factors 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 financial risk he takes, 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.”

9.  Ribeiro PJ then had the following to say:-

“The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developed in the abovementioned case-law with a view to deciding whether, as a matter of overall impression, the relationship is one of employment, bearing in mind the purpose for which the question is asked. It involves a nuanced and not a mechanical approach…”[1]

10.  His Lordship then referred to Hall v Lorimer [1992] 1 WLR 939, where Mummery J said at 944:-

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

11.  Ribeiro PJ added that, in the context of casual employment, the courts have recognised that two types of contract may arise:-

“35.  As and when a particular casual job is offered and accepted, the parties enter into a contract in relation to that engagement. That contract may well be classifiable as a contract of employment on an analysis of the type discussed in section B above. Plainly, such a contract does not involve any general obligation to provide or accept work. It comes into existence in relation only to the specific engagement and normally terminates by performance when the engagement is completed…

36.  On the other hand, it is possible (although uncommon) for the parties to enter into an overall contract whereby they do undertake mutual obligations to provide and accept work. Such a contract has been called an ‘umbrella’ or ‘global’ contract, to indicate that it is an over-arching and continuous agreement between the parties, encompassing a series of specific engagements within its span…

37.  An umbrella contract therefore embodies an obligation mutually undertaken by the parties to supply and take up work. It obviously follows that if no such obligation is undertaken, no umbrella contract comes into existence.  But the fact that there is no umbrella contract does not prevent the court from finding that the parties have nevertheless entered into a contract of employment each time a specific engagement occurs…”

(b) Tin Lee

12.  Tin Lee was an unlimited company set up by the applicant in 2015. 

13.  Even though it was pleaded in the respondents’ Answer that the Yuen Long Project was done pursuant to a “partnership agreement” between the applicant and the 2^nd respondent, it was Ng’s evidence in his witness statement that the partnership agreement was reached between Tin Lee and the 2^nd respondent. 

14.  However, it is now clear that the business registration of Tin Lee had already been terminated on 28 April 2016.  Ng further admitted during cross-examination that the applicant had not mentioned the words “Tin Lee” at all when he proposed his cooperation plan to Ng.  There was also undisputed evidence that the bank account of Tin Lee had been closed by the time when the Yuen Long Project was undertaken.  Hence, arguably, Tin Lee could not have been involved in the Yuen Long Project.  Indeed, Mr Chan for the respondents had focused on arguing that the applicant was a contractor in his personal capacity rather than as the boss of Tin Lee at the trial.

15.  Be that as it may, I am of the view that the applicant’s evidence on the operation of Tin Lee should still be considered, because this would affect the court’s assessment of:

(1)  the applicant’s credibility; and

(2)  the likelihood that the applicant was doing the Yuen Long Project as the 2^nd respondent’s partner (in his personal capacity rather than under the name of Tin Lee).

16.  In his first witness statement, the applicant stated that:-

(1)  he had accepted work under the name of Tin Lee since mid-2015;

(2)  Tin Lee was an unlimited company registered by him;

(3)  Tin Lee ceased business in April 2016 because (i) there were too many things to care about to run a self-owned company, and (ii) business was getting slow.

17.  In his supplemental witness statement, the applicant further explained that:-

(1)  Tin Lee was set up pursuant to the suggestion of Tse, who wanted to establish a company for the purpose of taking up sub-contract work from the 1^st respondent;

(2)  Tse was responsible for getting sub-contract work, paying workers’ wages, dealing with the subcontracting fees received, etc;

(3)  Tin Lee would pay the applicant a daily wage of $800 for any work done by him personally.  If Tin Lee made any profit out of any project, Tse would share such profit with the applicant.  However, they did not expressly agree on the percentage of profit which the applicant was entitled to[2];

(4)  Tin Lee did not have much business since February 2016, and was eventually closed down pursuant to the suggestion of Tse.

18.  The applicant had been cross-examined quite extensively by Mr Chan at the trial on the operation of Tin Lee.  In a gist, he stated in court that even though he could be said to be a boss of Tin Lee, all decisions were made by Tse, who was responsible for the running and operation of the company, and all projects of Tin Lee were procured by Tse.

19.  Insofar as it was the evidence of the applicant that he was a nominal owner of Tin Lee and that all decisions involving Tin Lee were made by Tse, such evidence is rejected.  While I accept that Tse was one of the bosses of Tin Lee, and that he had accepted/negotiated on sub-contract work on behalf of Tin Lee, it is my finding that the applicant had deliberately played down his role in Tin Lee when he made his supplemental witness statement and when he gave evidence in court.  Such a conclusion is reached for the following reasons:-

(1)  When the applicant explained the setting up of Tin Lee in his first witness statement, he had never mentioned the involvement of Tse.  While I recognise that the applicant only talked about Tin Lee very briefly in that witness statement, I am of the view that the applicant would not have left out Tse totally therein if Tse’s role in Tin Lee was as important as alleged.

(2)  As pointed out above, it was the applicant’s own evidence in his first witness statement that it was he who accepted work under the name of Tin Lee[3]. This contradicted his subsequent allegation that all Tin Lee’s projects were accepted by Tse.

(3)  According to the applicant’s evidence given during cross-examination, all that he had to do, as far as the running of Tin Lee was concerned, was to open a bank account and to get a business registration.  These are matters which had been done when the company was set up, and therefore could not be the reason for closing the company down.  Hence, when he said he had to close down Tin Lee because “自組公司需要兼顧的事情太多”[4] in his first witness statement, the applicant must be referring to something else.

(4)  The applicant alleged that all capital injected into Tin Lee came from Tse, and when it was decided to close down the company, Tse had instructed the applicant to withdraw all monies from the company’s bank account at one go and return such monies to Tse.  However, such evidence is contradicted by the undisputed bank transaction records of the company, which show that even though the company was allegedly closed down in April 2016, its bank account was not closed until 10 August 2016.  In the period between 8 April 2016 and 10 August 2016, there were altogether 11 withdrawals made from this bank account.  The applicant admitted in court that he had indeed spent the monies withdrawn himself.

(5)  The bank transaction records also show that the applicant’s assertion that he would have to hand over the monies earned by Tin Lee to Tse for his distribution is also a lie, or at least not the whole truth.  It can be seen from the 1^st respondent’s payment record and a cheque No 895844 that the 1^st respondent had paid Tin Lee in respect of 3 projects in the total sum of $116,000 on 24 May 2016.  The cheque was deposited into Tin Lee’s bank account on the same day.  If the applicant was truthful about the roles of Tse and himself in Tin Lee respectively, one would expect that the sum of $116,000 would have been withdrawn shortly thereafter in its entirety so that the same could be handed over to Tse for his disposal.  However, that is not the case here.  The sum of $116,000 was not totally withdrawn until 5 August 2016, after a total of 8 withdrawals.  I have not lost sight of the fact that it can also be seen from the bank transaction records that there had indeed been occasions when it appears that project monies received had been withdrawn at one go (or at most in 2 tranches) shortly after the company’s receipt thereof.[5] However, there should not have been any exception if the applicant was indeed just a nominal owner as alleged.

(6)  According to the applicant, Tse had to use the applicant’s name to run Tin Lee because Tse had some landed properties, and as a result, Tse did not want to put those properties at risk in case Tin Lee’s business failed.  In other words, it was not alleged that Tse was not free to deal with various matters concerning Tin Lee.  Indeed, according to the applicant, Tse had been very active in running and getting business for Tin Lee.  This is not surprising, because Tse was a retired person at the material time.  That being the case, in light of the applicant’s evidence that Tin Lee actually owned by Tse, it is very strange indeed that Tse had to rely on the applicant to withdraw money from the bank.  Such reliance would only be necessary if Tse did not add himself as one of the signatories of Tin Lee’s bank account, which, in my view, is inconsistent with the applicant’s allegation on the real ownership of Tin Lee. 

20.  Hence, I hold that the applicant had played down his role in Tin Lee so as to give the court an impression that despite his status as a boss of a company, he had never been a real contractor as such. Apparently, this was done to strengthen his case that he had not done any business himself, and had only been an employee.

(c) The applicant’s experience as a contractor

21.  The next question which I will consider is whether the applicant had ever acted as a contractor in his personal capacity.

22.  The applicant stated that he had never done so. I do not accept his evidence in this regard, as it is contradicted by contemporaneous documents:-

(1)  In the Notification of Remuneration Paid to Persons Other Than Employees for the year ended 31 March 2016 dated 20 May 2016 submitted by the 1^st respondent (“the 1^st respondent’s Notification”), the applicant was described as “Sub-Contractor 判頭”, and it was reported that the applicant had received a total sum of $166,000 from the 1^st respondent.  It appears from this document that the sum of $166,000 was paid to the applicant in his personal capacity, because the box “name of the company” was left blank.  Hence, the said sum should have nothing to do with Tin Lee.  This inference can find support from two other payment records (dated 25 January 2016[6] and 29 March 2016[7] respectively) of the 1^st respondent.  These payment records and the copies of the cheques attached show that the 1^st respondent had paid Tin Lee the sum of $265,600 and $105,000 respectively on 26 January 2016 and 29 March 2016.[8]  In other words, the payment of $166,000 to the applicant as sub-contractor must relate to project(s) other than those undertaken by Tin Lee.  As a matter of fact, the 1^st respondent has produced another Notification of Remuneration Paid to Persons Other Than Employees for the year ended 31 March 2016 dated 26 April 2016, in which the 1^st respondent reported to the Inland Revenue Department that it had paid a total of $370,600 to Tin Lee in the period between 1 January 2016 and 31 March 2016.  The amount of $370,600 coincidentally is the sum of the aforesaid $265,600 and $105,000.  This reinforces the conclusion that the applicant had accepted work from the 1^st respondent in his personal capacity, other than as a boss of Tin Lee, otherwise the 1^st respondent would not have prepared the aforesaid records and documents in the way it did.

(2)  By virtue of the Notification of Remuneration Paid to Persons Other Than Employees for the year ended 31 March 2017 dated 29 April 2017 submitted by a company known as Art Force Contracting Company (“Art Force”), Art Force reported that the applicant had received subcontracting fees in the total sum of $60,000 as a sub-contractor in the period between 1 April 2016 and 31 March 2017.  If the applicant only worked as an employee as alleged, Art Force would not have described him as a “sub-contractor” therein.

23.  As far as Art Force is concerned, the applicant strenuously denied that he had ever been engaged as a sub-contractor.  He gave the following explanation during cross-examination:-

(1)  He did not know Art Force at all, he only knew a sub-contractor known as “森哥”, and he had worked for 森哥 at a site in Kwun Tong for around 5 to 6 days in around July/August 2016;

(2)  He himself was not a sub-contractor;

(3)  He had earned around $20,000 out of this job as a general labourer for 森哥, but not $60,000 as stated in the said Notification submitted by Art Force.

24.  Even if the applicant was telling the truth that he only received $20,000 from 森哥, taking his case to the highest that he had worked for 6 days at the Kwun Tong site, he would have earned more than $3,300 per day, not to mention that the daily rate would amount to $10,000 if he had indeed received $60,000 as reported by Art Force in the said Notification.  Even the lower daily rate of more than $3,300 is far higher than the $800 daily wage which he said he and all those workers whom he introduced to the 2^nd respondent were earning.  This, as Mr Chan submitted (which I accept), demonstrates that the applicant was not just an employee, but a sub-contractor.

25.  Mr Wong for the applicant argued that these Notifications cannot serve as strong evidence against the applicant because they were not prepared by the applicant himself, and he was not shown these documents before they were filed.  It was also said that even if the 1^st respondent and Art Force considered the applicant as a sub-contractor, it does not necessarily mean that he was indeed a sub-contractor as such.

26.  In my view, the respondents’ case would of course be even stronger if there is evidence to prove that the applicant had seen the aforesaid forms before they were submitted.  However, even if he had not seen them before, the fact remains that they are undeniably contemporaneous documents, in respect of which adequate weight should be attached.  As for Mr Wong’s point on the inconclusive nature of the “label” given by the 1^st respondent and Art Force, I reiterate my acceptance of Mr Chan’s argument on the high daily rate which Art Force paid the applicant.  This is simply inconsistent with the applicant’s alleged status as Art Force’s employee.  A similar argument is applicable to the applicant’s relationship with the 1^st respondent.  The 1^st respondent’s Notification covers the period from 1 April 2015 to 31 March 2016, and it was reported that a total sum of $166,000 was paid to the applicant as sub-contracting fee.  As Tin Lee started its business on 22 May 2015[9] and was closed in April 2016, it can be inferred that the applicant had earned the said $166,000 within April to May 2015 without the involvement of Tin Lee.  In other words, the applicant had on average earned more than $80,000 monthly from the 1^st respondent in those 2 months.  He could not have done that by being just an employee as alleged.

27.  Apart from the above arguments, Mr Wong had further attacked the reliability of Chan’s evidence and submitted that if the applicant had really been the 1^st respondent’s sub-contractor as alleged, Chan would have been able to produce payment records in support, which he had failed to do so.  Neither could he produce any copy of cheques in support.  There is indeed some force in this attack.  Be that as it may, having considered the matter carefully, I accept the 1^st respondent’s case that the applicant had acted as its sub-contractor before, on the strength of the 1^st respondent’s Notification.  This is a document which was disclosed by the applicant himself.  I have no reason to doubt the authenticity of this document.  In my view, it should be inferred that the 1^st respondent must have filled in the said Notification on the basis of its records.  The inability on the part of the 1^st respondent to produce such records for the purpose of these proceedings is just a matter which this court has to take into account, but it is not decisive.

(d) Was the applicant an employee when he was injured?

28.  I now turn to consider the crucial question, namely, whether the applicant was working as the 2^nd respondent’s employee on 26 September 2016.

29.  I should emphasize at the outset that despite this court’s findings that the applicant was not a nominal owner of Tin Lee and that he had been a sub-contractor in his personal capacity before he worked in the Yuen Long Project, it does not necessarily follow that he must be a business partner of the 2^nd respondent rather than an employee in the Yuen Long Project.  However, those findings are matters which this court has to take into account when deciding on the said crucial question.

30.  Apart from the aforesaid matters, counsel had referred to many different aspects of the case in the course of their arguments.  I will consider those aspects under different sub-headings below.

(i) The circumstances under which parties’ agreement was reached

31.  The circumstances under which the applicant and Ng alleged that they had reached their oral agreement are quite different.

32.  The applicant alleged that the agreement was reached when he met Ng in a dinner gathering held in around June 2016.  The applicant said that Ng invited him to work for the latter at the daily rate of $800 because Ng knew that the applicant did not have any work to do at that time; Ng said he had got some sub-contract work from the 1^st respondent, and therefore he needed manpower.  According to the applicant, Ng’s exact wordings were: “我接到D野，你過嚟幫我手啦”.  At the same time, Ng also asked the applicant whether the latter could introduce some workers for Ng, and stated that he (Ng) would pay the same daily rate for the workers to be introduced by the applicant.  The applicant asserted that he accepted Ng’s invitation there and then, and introduced his son’s friend who is a Pakistani to Ng.

33.  Ng denied that there was such a meeting, nor was there such an agreement.  Ng told the court that in fact it was the applicant who called him by phone in mid-2016, and suggested that they could cooperate. According to Ng’s witness statement, the applicant proposed that Tin Lee and the 2^nd respondent could cooperate.  However, as aforesaid, during cross-examination, Ng accepted that the applicant had not mentioned the name of “Tin Lee” when he made the proposal.  The proposed way to cooperate was that whenever either of the party successfully obtained a project, the other party would finish the project together with the first-mentioned party. They (the applicant and Ng) would not take wages, but the net profit or loss earned or suffered out of the project would be shared between them equally.  Ng stated that he agreed to such a proposal, and the Yuen Long Project was the second project in which they had “cooperated” in this way.

34.  In my view, it is more likely than not that it was the applicant who suggested to Ng that they could “cooperate” and that the applicant and Ng had reached an agreement along the line as described by Ng in court.  I do not accept the applicant’s evidence that it was Ng who invited the applicant to work for him at the daily wage of $800 back in June 2016.

35.  I have made the above findings for the following reasons:-

(1)  It is undisputed that Ng knew that the applicant had started Tin Lee back in 2015, and there is no evidence that the applicant had ever told Ng before June 2016 that Tin Lee had already ceased business. Without such knowledge, it would be very odd for Ng to ask the applicant (i.e. the boss of another company) to work for him as a worker as alleged.

(2)  While the applicant said that Ng told him in June 2016 that Ng was in need of workers because he had accepted some work from the 1^st respondent, the first time when the applicant allegedly worked for the 2^nd respondent in work sub-contracted from the 1^st respondent was the Yuen Long Project in September 2016, which was 3 months after the alleged conversation between the applicant and Ng.  In other words, the objective fact does not support the applicant’s allegation.

(ii) The commercial sense of the alleged cooperation scheme

36.  Mr Wong argued that it is inherently improbable that the applicant and Ng would have agreed on the alleged cooperation scheme because it would have been easier for Tin Lee (I assume he meant the applicant as well) or the 2^nd respondent to simply sub-contract work to each other, like what Tin Lee did in the past.

37.  With respect, I do not accept Mr Wong’s argument.  In my view, this cooperation scheme would create a win-win situation for both the applicant and Ng, because:-

(1)  If the said cooperation scheme was in place, both parties would have one more source of sub-contract work, because they would refer such work to each other.  This is particularly important for the applicant because Tin Lee had just been closed down not too long ago in May 2016.  In other words, the applicant had been on his own since the closing down of Tin Lee and could not rely on Tse further in getting sub-contract work. 

(2)  I accept Ng’s evidence that this cooperation scheme was attractive to him because the 2^nd respondent would have to pay subcontracting fee to the applicant if the applicant was its sub-contractor even if it had not been paid by the main contractor, whereas the 2^nd respondent would not have such a burden if the applicant was its partner.  Mr Wong argued that Tin Lee (again, I assume he meant the applicant as well) had never had such a cash flow problem in the past, and one of the reasons was that it was the practice of Chan’s companies to pay sub-contractor within 1 or 2 months.  This argument is misconceived, because it is evident that the 2^nd respondent did not only do sub-contract work for Chan’s companies (the Repulse Bay Project is an example), whereas Tin Lee was set up for the purpose of taking up sub-contract work from the 1^st respondent.

38.  Mr Wong further argued that the sensible way of partnership in construction projects is to split the contract fee rather than to split the profit, and that in this way, each party would be responsible for its own workers and expenses.

39.  I agree that the way suggested by Mr Wong is also feasible, and may provide better protection to the parties involved, because each party would have to take care of its own part of receipt from a project.  However, I do not think the partnership arrangement as alleged by Ng was so unreasonable that made it inherently improbable for it to exist. Neither do I think it can be said that because Ng did not think of a better scheme, “there had never been a serious thought about the partnership”[10].

(iii) The subcontracting fee of the Yuen Long Project

40.  According to Ng’s evidence, Chan initially only offered to pay $25,000 for the 2^nd respondent to take up the Yuen Long Project, which required the setting up of scaffolding and dismantling of some telecommunication facilities.  However, having conducted a site visit, the applicant opined that the fee of $25,000 was too low, and that such fee should be raised to $35,000.  Ng then called up Chan there and then, who eventually acceded to the request of Ng.  Ng further stated that in the course of such negotiation with Chan, he had passed the phone to the applicant who had given further explanation to Chan as to why he took the view that the fee of $25,000 was too low.

41.  The applicant denied that he had ever conducted any site visit before the work began, nor did he propose to Ng that the fee of $25,000 should be raised to $35,000.  Indeed, the fact that he had not participated in the negotiation on the amount of subcontracting fee was one of the matters which was relied on to support his case that he was just an employee. 

42.  I do not accept Ng’s evidence that the applicant had talked to Chan directly on the phone as alleged, because:-

(1)  Chan, in his Affirmation filed on 24 January 2020 in answer to interrogatories, confirmed without qualification that there was no direct negotiation and/or discussion between him and the applicant on the subcontracting fee.  While Chan had stated in the witness box that it was possible that he had talked to the applicant directly on the phone as described by Ng, he admitted that he was just 50% sure about this.  In my view, Chan had started to question about his own memory on this matter only because Ng had, shortly before the commencement of the trial, admittedly asked him whether it was the case that he (Chan) had talked to the applicant directly. 

(2)  If the applicant had indeed talked to Chan directly on the phone, Ng and Chan would have referred to such an important matter in their witness statements which were prepared in June 2019.  However, they had not mentioned this matter at all therein.

43.  Having said that, I accept Ng’s evidence that the applicant did give his view on the proposed subcontracting fee in relation to the Yuen Long Project.  This is because it is undisputed that Ng only specialised in scaffolding business but not in dismantling business. Therefore, unless he was assisted by the person who was going to do the dismantling work, he would not know whether it was profitable to accept the subcontracting work at the suggested fee. 

44.  Pausing here, I should also add that I do not accept Chan’s evidence given in court that he had sub-contracted the scaffolding work and the dismantling work separately in the Yuen Long Project. It might be that that was his original intention, but that was not what he eventually done.  According to Ng’s evidence, it was Ng who asked Chan on his own initiative whether Chan had already found someone to do the dismantling job in the Yuen Long Project, and when Chan answered in the negative, Ng suggested that the applicant might be entrusted to do it.  It was my finding that Chan had only talked to Ng all along and that Chan did not have any direct communication with the applicant during the negotiation stage of the project. Further, only one subcontracting fee of $35,000 was agreed on, and there is no evidence that there was any agreement reached by Ng/the applicant with Chan on how the said fee should be split between the 2^nd respondent and the applicant.

(iv) The “cooperation” in practice

45.  Mr Wong had cross-examined Ng quite extensively on the precise operation of the “cooperation”, and it was Ng’s evidence that:-

(1)  After the agreement between the applicant and Ng to “cooperate” had been reached, they had only undertaken 2 projects together. The first one was the Repulse Bay Project and the second one was the Yuen Long Project;

(2)  He knew that the Pakistani worker (whom the applicant employed) charged $800 per day as his wage;

(3)  He did not know how much the applicant’s workers had charged for the Yuen Long Project.

46.  Mr Wong argued that it was inherently improbable that Tin Lee and the 2^nd respondent had any business partnership, as it is simply inconceivable that Ng would not care about the wages of Tin Lee’s workers.  It was submitted that it does not make commercial sense.  The same argument applies even if the alleged partnership was between the applicant (instead of Tin Lee) and the 2^nd respondent.

47.  With respect, I do not think this argument could assist the applicant in persuading the court that he was just an employee, because this criticism, if it is justified, would be equally applicable no matter whether the applicant was an employee of the 2^nd respondent or a business partner of the 2^nd respondent.  In both cases, it would be important for the 2^nd respondent to know its costs anyway.

48.  Mr Wong gave an example while cross-examining Ng that if the applicant paid his wife at the daily wage of $2,000, such a high cost would eat into the profit which the 2^nd respondent could have enjoyed.  He was indeed right.  But the 2^nd respondent’s profit would be affected for the same reason even if the applicant was only an employee.

49.  In any event, I am of the view that there is nothing inconceivable about it even if Ng did not know the wages of employees employed by the applicant.  As Ng put it, he and the applicant were friends, and their cooperation was based on trust.  If the applicant did anything dishonestly, for example, by paying his wife at an unreasonably high rate, Ng would not cooperate with him anymore. 

50.  Furthermore, it is not the case that Ng was totally in the dark on the daily rate of wages, because according to Ng, before they started to do the first project together at the Repulse Bay, the applicant had already made known to him that the Pakistani would be paid a daily wage of $800.

(v) Working instructions

51.  The applicant stated in his evidence that it was Ng who gave instructions for him to work at the site in the Yuen Long Project, in particular, Ng required him to squat on the kerb along the short wall from which place he eventually fell and injured himself.

52.  On the other hand, Ng stated in his witness statement that he and the applicant had agreed as to where the scaffoldings should be erected.  He also stated therein that it was the applicant who took the view that scaffolding need not be set up next to the short wall because his hand should be long enough to dismantle the wires attached to the wall if he stood on the top of the stairs. 

53.  As Ng accepted in court, it was impossible for the applicant to detach some of the cable ties (which tied the wires together) attached to the wall in the way as described in his own witness statement because it was just too far away for the applicant to reach out by his hand.  I therefore reject Ng’s evidence that the applicant had indicated that he could do his work by reaching out by his hand as alleged.

54.  However, I would also reject the applicant’s evidence given in the witness statement that Ng had instructed him to detach the cable ties by squatting on the kerb.  There is no dispute that Ng’s expertise was only on scaffolding, and on the other hand, the applicant was experienced in dismantling telecommunication equipment and facilities, etc.  It was therefore unlikely that Ng would give specific instructions on how the applicant should do the dismantling work.  Indeed, when the applicant was cross-examined in court on the reason why he chose to squat as he did rather than waiting for the availability of the ladder at the site, he answered that he could not wait, otherwise he would be scolded.  He did not answer that he was specifically instructed by Ng to do the work in this way.

55.  Taking into account parties’ respective expertise, I accept Ng’s evidence that he and the applicant had discussed and agreed on the locations at the Rooftop at which scaffoldings should be erected. I think it is more likely than not that Ng would have discussed with the applicant as to where those scaffoldings should be erected (rather than deciding on such a matter by himself without consulting the applicant) because the applicant was the person who would be making use of the scaffoldings.  I also accept Ng’s evidence that no scaffolding was erected next to the wall in question at the end of the day because they were not allowed by the “building”[11] to do so as the scaffolding, if erected, would be located at the fire escape route and that the applicant knew about this limitation at the material time.

56.  Furthermore, I believe in Ng when he said that he did not instruct the applicant as to how he should do his dismantling work, as this was simply not his field of expertise.

(vi) Tools and equipment

57.  The applicant stated that apart from some small portable tools which he had brought along for his own convenience, it was Ng who provided the rest of the equipment.  This was denied by Ng in his cross-examination.  Ng said that they were provided by the applicant.  

58.  In this regard, I prefer Ng’s evidence, as I am of the view that the applicant would give whatever evidence which would bolster his claim, even though such evidence is not the truth.  His role in Tin Lee and his previous experience as a contractor serve as good examples.

59.  Further, as I mentioned above, it is evident that the 2^nd respondent and Ng only have expertise in scaffolding.  It is more likely than not that they would not have tools for dismantling purpose.

60.  It seems undisputed that at the material time, a ladder was used at the Rooftop.  I hold that it was provided by the 2^nd respondent, because it is evident that Ng also had to use it to erect scaffolding.  

(vii) The transportation arrangement

61.  In Mr Wong’s Closing Submissions, he relied on the undisputed fact that the applicant had travelled to the respective sites of the two projects by the 2^nd respondent’s van.  Insofar as it was his argument that this shows that the applicant was only an employee, I must say, with respect, I cannot see the logic in this argument. 

(viii) Sharing of profits in the 2 projects

62.  Mr Wong had made a number of points on the alleged sharing of profits.

63.  First of all, he pointed out that there was no document at all in support of the alleged split of profit.  Indeed, Ng admitted that the alleged sharing of profits was not reflected in the 2^nd respondent’s audited accounts.  He had given a number of reasons at the trial for this, for example, in relation to the Repulse Bay Project, he said there was no record because he did not receive the money from the main contractor immediately after the completion of the work, and when the money was received subsequently, it was mixed with the money from other projects.  In the end, he even accepted that the subcontracting fee of $22,000 for the Repulse Bay Project was not recorded in the 2^nd respondent’s accounting record. 

64.  I accept Mr Wong’s argument that if what Ng explained was true, he (and the 2^nd respondent) were evading their tax liability, and this would cast doubt on Ng’s credibility.  

65.  Mr Wong then challenged the calculation of the alleged profits earned out of the Repulse Bay Project.  He submitted that if the subcontracting fee was $22,000 as alleged, Ng could not have shared $11,000 with the applicant as alleged by Ng because this was contradictory to the respondents’ case that only the profits, but not the subcontracting fee itself, would be shared.  Mr Wong said that $11,000 could not be the profit because wages had been paid to the Pakistani worker introduced by the applicant. As to Ng’s explanation that at the end of the day the Pakistani worker was paid by making use of the sale proceeds of the scrap materials dismantled (which, as alleged, were more or less the same as the wages payable), Mr Wong queried whether there could be such a coincident. 

66.  I would not reject Ng’s evidence on this matter only because there was an alleged coincidence. 

67.  On the other hand, while Ng stated in his evidence that it was the applicant who was responsible to pay the Pakistani worker, the applicant had never given any evidence as to when Ng paid the worker.  If the applicant and the Pakistani were both the 2^nd respondent’s employee, and if the applicant was truthful when he said that the 2^nd respondent paid him $8,000 after the completion of the work, the likelihood is that the 2^nd respondent would have paid the applicant and the Pakistani at the same time, and the applicant would have been able to witness that, and subsequently included this matter in his witness statement.  However, he was totally silent on this matter.

68.  Furthermore, Ng’s evidence that the partnership would rely on the sale proceeds of the dismantled scrap materials a source of revenue is also supported by Chan, who had also mentioned about this in his witness statement. 

69.  I therefore accept that Ng did share the profit of $11,000 with the applicant.

(ix) The payments made by Chan and Ng after the accident

70.  It is undisputed that the applicant, Tse, Ng and Chan had attended a gathering at a karaoke in Jordon around one month after the accident.  The gathering was initiated by Tse.  The applicant said he did not know that Chan and Ng would be there when he accepted Tse’s invitation to attend the gathering.  The applicant thought that Tse arranged such a gathering out of his kindness to help. 

71.  Pursuant to the discussions held in this gathering, Chan and Ng had paid a monthly sum of $20,800 to the applicant for 5 months.  Coupled with the amount of $35,000 which Ng had paid to the applicant (Ng said he had paid the applicant the entirety of $35,000 which the 2^nd respondent received for the Yuen Long Project), it was agreed by the parties that Chan and Ng had paid the applicant a total of $139,000 after the accident.

72.  The witnesses had given different reasons as to why the monthly payments were made:-

(1)  According to Ng and Chan, they had agreed to make monthly payments to the applicant because they were minded to help the applicant as their friend, but not because he was an employee of the 2^nd respondent.  Chan further stated that he did not know how the amount of $20,800 was arrived at.  He just heard in the karaoke that there was a request for such a payment, and agreed to pay accordingly since it was within his financial ability to do so.  The payment was made out of their good intention to assist the applicant, because the latter could not be entitled to any employees’ compensation given his status being a contractor rather than an employee.

(2)  On the other hand, the applicant said that despite his repeated requests, the 2^nd respondent refused to report the accident to the Labour Department.  Tse then arranged the gathering, and asked Chan and Ng to pay the applicant $800 per day for 26 days each month until he was recovered.  This was accepted by Ng and Chan.  The applicant denied that it had ever been discussed during the said gathering that he was not entitled to claim any employees’ compensation from insurance company.

73.  Parties had also given different versions of events leading to the suspension of the above monthly payments.  The applicant said Ng told him around 5 months after the first monthly payment that he (Ng) had no money to pay him anymore, and asked the applicant to request Chan to pay for Ng’s share as well as his own share.  The applicant said he did not accede to Ng’s request, and therefore he did not approach Chan accordingly, because it was “not his business”.  On the other hand, Chan said that the payment was stopped because Tse asked him to stop payment since the applicant was prepared to sue them for employees’ compensation, which was confirmed to be the case after Ng’s verification with the applicant.

74.  I do not accept Chan’s evidence that he did not know how the amount of $20,800 was arrived at.  The figure of $20,800 was an odd one.  I am of the view that it would be natural for anyone on the receiving end of such a request for payment to ask why the monthly payment should be $20,800 instead of, for example, $20,000.  I take the view that the calculation of this amount must have been made clear to both Chan and Ng at the karaoke.

75.  However, subject to the above, it is my finding that it is more likely than not that Ng and Chan only made the monthly payments to the applicant as compassionate payment rather than by reason of their recognition that the applicant was an employee of the 2^nd respondent.  I also hold the view that this was clear to the applicant at the material time.  This is because even on the applicant’s own case, he had only earned $8,000 from the 2^nd respondent in August 2016.  As far as the Yuen Long Project was concerned, the applicant said it was the 5^th or 6^th day of work when he met the accident on 26 September 2016.  It was Ng’s undisputed evidence that the project was coming to the end at that time.  In other words, on the applicant’s own case, he would be entitled to wages in the sum of $4,800 at most in the month of September 2016.  Hence, the applicant’s monthly wages at the material time could not be more than $8,000.  In my view, if the monthly payments were made on the basis that the applicant was an employee of the 2^nd respondent, such payment would have been calculated on the basis of the wages received by the applicant at the material time, which, as demonstrated above, could in no way be as much as $20,800.

76.  As for the reason why the monthly payment was suspended 5 months later, I accept that Chan was telling the truth, and reject the applicant’s evidence, because the applicant’s version of events could not explain why Chan had stopped his payment:  It should be noted that while Ng said that he was unable to pay further, according to the applicant, Chan did not give any similar indication as such.  Even if Ng could not pay further, and even assuming that the applicant was too scared to ask Chan to pay for Ng as well, there was nothing which stopped the applicant from asking Chan to keep paying him $10,400 a month which Chan had promised to do so and had been doing for 5 months.  The applicant could also have asked Tse to assist him if he did not want to make the request to Chan directly.  However, it appears that the applicant did not do anything about it upon being told by Ng that he could not make further payment.  This, in my view, in inherently improbable, because half of the agreed sum of $20,800 is still quite a large sum of money.  I therefore accept that no further monthly payment was made because Chan and Ng were told that the applicant was going to sue them.  Having said that, it seems that this matter would not shed much light on whether there was or was not any employment relationship between the applicant and the 2^nd respondent. 

(x) The submission of Form 2 by the 2^nd respondent

77.  It is undisputed that the 2^nd respondent did submit a Form 2 to the Labour Department on 8 June 2017 (in other words, more than 8 months after the accident).

78.  The question is, why did the 2^nd respondent submit a Form 2 if the applicant was not its employee at all?

79.  In his witness statement, Ng explained that in around April 2017, the applicant informed him that he had filled in a Notification of Accident, and the applicant requested Ng to fill in a Form 2 so as to assist him in getting more payment as 接濟金 from the main contractor.  Ng did not agree to do so initially because the applicant was not the 2^nd respondent’s employee.  However, he eventually acceded to the applicant’s request in June 2017, and agreed to fill in a Form 2 by copying the applicant’s Notification of Accident.

80.  During cross-examination, Ng gave a different account on the reason why he submitted a Form 2 in June 2017.  He stated that he had received two telephone calls from an unknown male.  In the first call, the male tried to induce him in filing a Form 2 by saying that his (Ng’s) interest would not be prejudiced by doing so because the applicant was only going to claim against the insurance company.  In the second call, the male’s attitude had changed, and threatened Ng by saying that he would be in big trouble if he did not submit a Form 2. 

81.  Like many other issues, the applicant’s case was very different.  He stated in his witness statement that Ng filled in the Form 2 on his own initiative, and denied that he had given any document for Ng to copy from.

82.  Mr Wong had tried his very best in discrediting Ng by submitting that Ng would not have omitted to mention about his telephone conversation with the unknown male in his witness statement if that was the truth. 

83.  However, it seems to me that it was inherently probable that Ng had eventually decided to submit a Form 2 because of those calls made by the unknown male.  It should be borne in mind that the applicant had requested Ng to make a report to the Labour Department for a long time (according to the applicant, he had made such a request after the accident in the hospital).  Ng had refused to do so all along.  In my view, something must have happened which prompted Ng to change his mind after such a long time.

84.  I reject the applicant’s evidence that he had never given Ng any document to copy from while he filled in the 2^nd respondent’s Form 2.  In my view, unless Ng was copying from a document as provided by the applicant, it is impossible for the “description of accident” in the 2^nd respondent’s Form 2 and the applicant’s Notification of Accident to read exactly the same: “在折卸電線途中因為空間太窄滑到受傷”.  Such a finding is supported even more strongly by the fact that in both documents, the word “拆” had been incorrectly written as “折”, and “滑倒” written as “滑到”. 

85.  I take the view that if Ng considered that the applicant was the 2^nd respondent’s employee, he would have filled in Form 2 much earlier.  I accept Ng’s explanation why he eventually submitted the Form 2.  I therefore would not place much weight on the filing of the 2^nd respondent’s Form 2.

(xi) The mode of operation of the 2^nd respondent

86.  It is Ng’s evidence that because of the dangerous nature of the 2^nd respondent’s scaffolding business, no insurance company was willing to provide insurance protection for the 2^nd respondent’s employees, and as a result, all workers who worked for the 2^nd respondent were self-employed, and none of them was the 2^nd respondent’s employee. 

87.  I do not think Ng is factually correct when he said that there was no way that the 2^nd respondent could purchase employees’ compensation insurance for its workers.  Even assuming he is right, this does not necessarily mean that the applicant could not, as a matter of fact, work as its employee.  At the end of the day, the court would have to decide this question by reference to the legal principles set out above. 

88.  Having taken all the above matters into consideration, my finding is that the applicant was not working as an employee of the 2^nd respondent on 26 September 2016.

89.  The applicant’s claim for employees’ compensation should therefore be dismissed.

90.  However, for the sake of completeness, I would consider below the other issues identified at the beginning of this Judgment.

Serious and wilful misconduct

91.  There is no dispute that the applicant fell from a kerb and injured himself while he was removing some wires which were attached to a short wall on the Rooftop.

92.  The respondents argued that the applicant should have used a ladder rather than squatting on the kerb which was quite a distance (around 8 to 9 feet according to the applicant) from the ground level, and that it should be taken as if Ng had instructed the applicant to use a ladder when he worked at the location in question.  They further submitted that although the ladder was being used by others at the material time, there was no reason why the applicant should not have waited, and he could have removed other parts of the wires first.  Indeed, the applicant admitted that he could stand safely at the top of the staircase for the purpose of removing such other parts of the wires.  It was further said that even if the applicant had to remove the wires which were 8 to 9 feet from the ground level first, he should have adopted some safety measures, for example, by using a safety line.  It was therefore submitted that the applicant’s injury was attributable to his “serious and wilful misconduct”, and that as a result he should not be entitled to any compensation by virtue of section 5(3) of the Ordinance.

93.  In Leung Hak Chai v Lamma Transportation Company Limited (CACV 207/2012, unreported, 10 October 2013), Fok JA (as his Lordship then was) explained that:-

“…To constitute serious and wilful misconduct, the conduct must be misconduct and an obvious example of this would be criminal activity. Although not all misconduct need be criminal, it must still be in the nature of misbehaviour and it must be serious and wilful, amounting in effect to deliberate conduct inconsistent with the employment relationship…”[12]

94.  The applicant explained that he did not wait for the use of the ladder because he wanted to finish the work as soon as possible.  While he could not give any satisfactory answer as to why he could not wait, or alternatively, to remove the other parts of the wires first by standing at the top of the staircase while he was waiting for the availability of the ladder, in my view, the applicant’s conduct plainly does not amount to “serious and wilful misconduct”.

95.  The respondents’ reliance on section 5(3) of the Ordinance must fail.

Added peril

96.  Mr Chan for the respondents further argued that if the accident had arisen from some “added peril” to which the employee had exposed himself by his own conduct and which he was not allowed to encounter by any term of his contract of service, the accident cannot be said to arise out of his employment.  To put his argument in context, perhaps I should quote what he stated in his Reply Submissions:-

“…The proper sequence should be for the applicant to prove that the accident arose in the course of and out of the employment (the deeming provision of section 5(4)(a) would assist the applicant in this regard), and then for the respondent to rebut the deeming provision of section 5(4)(a) (by say the added peril or serious wilful misconduct defence). If the court finds that the accident arose in the course of and out of the employment notwithstanding the respondent’s challenge, then there is no need to consider section 5(4)(b). If the court shares the view of the respondent, then it is incumbent to consider the deeming provision in section 5(4)(b) of the Ordinance.

It is therefore wrong to suggest that ‘added peril’ as a defence has no place in an employees’ compensation claim proceeding. Admittedly the hurdle to prove an act of an employee not within employment is high. Yet, it is still valid and relevant consideration for the court to decide if the deeming provision of section 5(4)(a) is rebutted, and hence whether section 5(4)(b) is invoked.”[13]

97.  In support, Mr Chan cited the House of Lords decision of Stephen v Cooper [1929] AC 570, in which Lord Hailsham had the following to say:-

“…But it is well established by a series of decisions in your Lordships’ House that, apart altogether from the question of serious misconduct, if the accident arises from some peril to which the workman has exposed himself by his own conduct and which he was not obliged to encounter by any term of his contract of service, the accident cannot be said to arise out of his employment. Lord Dunedin states the principle in Plumb v. Cobden Flour Mills Co. [1914] AC 62, 68 as follows: ‘A risk is not incidental to the employment .... when it is an added peril due to the conduct of the servant himself’; and Lord Haldane explains the expression ‘added peril’ in Lancashire and Yorkshire Ry. Co. v. Highley [1917] AC 352, 361, 365 as meaning a peril ‘voluntarily superinduced on what arose out of his employment, to which the workman was neither required nor had authority to expose himself.’ ” (at pages 573-574)

98.  It should be noted that Lord Shaw had in the same case warned against the adoption of “added peril” as the sole test in deciding whether the risk undertaken by the injured employee would take what the employee did out of the sphere of employment:-

“…but it is proper to observe that in the course of Highley’s case Lord Dunedin, referring to Plumb, made this observation: ‘It is with insistence laid down in that judgment that the question is always whether the case falls within the words of the Act, and that ‘added peril’ is a test only, though a very convenient test in certain circumstances.’ I entirely agree with that observation.

Of added peril and the cluster of cases around that phrase I would beg to be allowed to say that there are no inconsiderable dangers of an erroneous development of the law by making added peril a sole test and therefrom a settled and conclusive category of cases which are excluded from the ‘remedial’ operation of the Workmen’s Compensation Act.

Granted an extra hazard, it is not enough to dub it an added peril and to follow the cases; the true inquiry may be only beginning. On the one hand a fundamental question is, was the course taken by the workman prompted by his own indolence or purely for his own convenience and not in the interests of the work, say, by effectiveness or dispatch? If so, then the extra hazard is not only an added peril but a needless peril, and an arbitrator is free to find that the accident did not arise out of the employment.

On the other hand, the conditions, not merely of skilled labour, but of much simpler and more ordinary labour, over and over again present emergencies and unexpected difficulties, great and small, and Courts and arbitrators should be slow to reckon out of the employment unusual acts done or simple devices adopted to get the work forward and to meet emergent difficulties. The merit of a good workman is to show a dexterity both of hand and mind to overcome these, and he may under-estimate the hazard of his efforts in the attempt to be both a time saver and a labour saver. But in my opinion the statute does not on a sound interpretation mean that an accident occurring in the course of such acts and with the hazard referred to did not arise out of the employment. The range of routine is not necessarily the measure of employment. The statute so construed would be a clog upon initiative. The words ‘added peril’ do not end the matter. If they did, an inversion of a remedial statute would be accomplished and meritorious labour would be penalized. In the case figured the only proper finding of the arbitrator is that the accident did arise out of the employment.”

99.  In a subsequent case Thomas v Ocean Coal Company, Limited [1933] AC 100 before the House of Lords, Lord Buckmaster, while referring to Stephen v Cooper (supra), held that:-

“…The decision did no more than say that there was evidence on which the arbitrator could so find; but the doctrine of an ‘added peril’ was referred to by Lord Hailsham, where he says: ‘There was ample evidence to justify the arbitrator in finding that the principle of ‘added peril’ applies to the present case, and that consequently there was evidence on which he could properly find that the injury was not due to an accident arising out of employment.’

I agree with the Master of the Rolls in thinking that such a phrase is not a touchstone whereby to determine whether or not the man was acting within his employment, and it would, I think, be unfortunate if this phrase got crystallized into a form of test, and an accident should be looked at according to the meaning of these words instead of relying, as reliance must be placed, upon the words of the Act of Parliament.

This is clearly expressed by Lord Dunedin in the case of Plumb v. Cobden Flour Mills Co. in these words: ‘It is often useful in striving to test the facts of a particular case to express the test in various phrases. But such phrases are merely aids to solving the original question, and must not be allowed to dislodge the original words. Most of the erroneous arguments which are put before the Courts in this branch of the law will be found to depend on disregarding this salutary rule. A test embodied in a certain phrase is put forward, and only put forward, by a judge in considering the facts of the case before him. That phrase is seized on and treated as if it afforded a conclusive test for all circumstances, with the result that a certain conclusion is plausibly represented as resting upon authority, which would have little chance of being accepted if tried by the words of the statute itself.’ In one sense, every method of performing an operation in the course of a man’s employment that is not the safest is an added peril, but the Act contains no provisions that exclude from its benefits an accident that has arisen through a method of work which was not the safest in the circumstances. Conduct can, of course, be so reckless and so unnecessary as to take it outside the meaning of the statute, and this was what happened in the case of the Lancashire and Yorkshire Ry. Co. v. Highley, and again, according to the arbitrator, in Stephen v. Cooper. The learned judge here has held that, having regard to what was said in Stephen v. Cooper, he was ‘bound to hold’ that the adding of the peril placed the workman’s act outside the scope of his employment. I do not think he was so bound. I think the case of Stephen v. Cooper introduced no new law. In my opinion it merely followed an earlier decision.” (at pages 109-110) (emphasis added)

100.  In the same case, Lord Wright added:-

“…On the authorities as they stood before [section 5(4)(b) of the Ordinance], his contravening the regulation would have been held to take his case outside the Act: of the many cases cited in this House embodying the rule it is enough to refer to A. G. Moore & Co. v. Donnelly [1921] 1 AC 329, where it was held that the breach of the regulation expressly excluded the prohibited act from the man’s employment, and also involved an added peril which was outside the sphere of the employment.

But the amending section deals (inter alia) in express terms with breaches of regulations, statutory or otherwise, and provides that notwithstanding the breach, the accident … ‘shall be deemed to arise out of and in the course of his employment if such act was done by the workman’ (as the judge has here found to be the fact) ‘for the purposes of and in connection with his employer’s trade or business.’ The peculiar language ‘deemed to arise’ is no doubt chosen to exclude any such rule as was accepted by the Courts in regard to claims where the man had been guilty of serious and wilful misconduct; though the Act provided that in certain events that should be no defence, the claim, so it was held, could still be countered on the reasoning stated above by the plea that the man’s breach of regulation took the case outside the Act so as to defeat the claim. [Section 5(4)(b) of the Ordinance], by enacting that the accident, notwithstanding the breach, is still to be deemed to arise out of and in the course of the employment, treats the position as a matter of law, so that if once the terms of [the said sub-section] are complied with the claim must succeed, whereas before the amendment on the authorities it must have failed.

…the simple issue has been complicated by what I venture to think, with deference to the learned Lords Justices, is a misunderstanding of the language which Lord Dunedin used, which has been construed by the Court of Appeal in this and in other cases as meaning that in any case in which [section 5(4)(b) of the Ordinance] is invoked there is still a question ‘of fact and degree’ to be determined by the arbitrator – namely, whether, though it is merely the contravention of a prohibition which is relied on as taking the case out of the employment, that contravention was of such a nature as to take the case out of [section 5(1) of the Ordinance], and that for the determination of that question the cases before the amending Act, such as Plumb v. Cobden Flour Mills Co., embodying the tests of ‘prohibited territory’ or ‘added peril’ are still to be applied. To apply that ruling to such a case is in my judgment contrary to [section 5(4)(b) of the Ordinance] and to the decision of this House in the contrasted cases of Wilsons and Clyde Coal Co. v. M’Ferrin [1926] AC 377 and M’Aulay v. James Dunlop & Co.[1926] AC 380. [Section 5(4)(b) of the Ordinance] excludes any such question of fact: the word ‘deemed’ quite clearly substitutes for any such question a conclusion of law: it cannot be construed as meaning ‘shall be deemed to arise, etc.,’ ‘provided the arbitrator does not come to a contrary finding of fact’:

…hence no question can arise of the case being excluded under [section 5(1) of the Ordinance] on the ground of breach of prohibition; it must be found that the man had actually deserted the task for which he was paid in order to do someone else’s work of a different category. He must be found to have changed his employment, not in the artificial sense of contravening a regulation and thereby taking an unnecessary risk, but in the ordinary and everyday sense in which a man is said to be doing another job, as illustrated by M'Aulay’s case.

I have not so far dealt with the latter part of the learned county court judge’s judgment or the reasoning which led him to feel that he was bound to hold as a conclusion of law that the accident did not arise out of Thomas's employment.

I think he has done so because he has misapprehended the effect of Stephen v. Cooper, and has treated that case as an authority on the interpretation of [section 5(4)(b) of the Ordinance], whereas in that case no question under [section 5(4)(b) of the Ordinance] arose at all. The findings of the arbitrator were stated by Lord Hailsham L.C. as amounting to findings that the accident was caused solely by the man’s foolhardy act of bravado. The House simply applied to these findings (which were perhaps somewhat harsh to the man) the rules laid down in cases like Plumb v. Cobden Flour Mills Co. and Lancashire and Yorkshire Ry. Co. v. Highley to the effect that ‘added peril’ or ‘enhanced risk’ due to the man’s own conduct took the case out of the Act: the remedial provision of [section 5(4)(b) of the Ordinance] was not in question and had no application to the case. It was, however, argued before your Lordships on the authority of Stephen v. Cooper that in the present case, though the conditions of [section 5(4)(b) of the Ordinance] were fulfilled, the matter could still be envisaged from the standpoint that the infringement of the prohibition ‘added a peril’ and this ‘added peril’ took the case out of the employment and barred the claim notwithstanding [section 5(4)(b) of the Ordinance]. Such an argument attempts to create a notional dissection of the single act from which the accident resulted. It is, however, only one act that caused the accident. That act cannot be split up into two aspects so that though it falls within [section 5(4)(b) of the Ordinance] as a breach of a prohibition it falls outside [section 5(1) of the Ordinance] as an ‘added peril’. Since a breach of prohibition must almost invariably involve an enhancement of risk, the contention would in effect nullify any remedial effect of [section 5(4)(b) of the Ordinance]. But the argument completely fails, I think, on the sole ground that, for the reasons I have already stated, the express words of [section 5(4)(b) of the Ordinance] (once the conditions of the sub-section are fulfilled) must override and exclude any test or formula such as that of ‘added peril’. I think the actual conclusion of the learned county court judge is based on an erroneous understanding of law.” (at pages 133 – 138) (emphasis added)

101.  Relying on the above, I reject Mr Chan’s argument.  With greatest respect, his suggested approach has complicated the matter unnecessarily.  In my view, it is clear that at the end of the day, what the court has to decide is the question of whether the accident arose out of and in the course of the employment.  Where it is said that the employee had taken an added risk while he was doing his job, the court has to consider whether by taken such a risk, the employee had done something which he was not employed to do, in the sense that he was doing someone else’s job.

102.  In the event it is argued by the employer that the employee had, while doing his job, acted in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, the court has to consider whether the employee’s act was done for the purposes of and in connection with his employer’s trade or business.  If so, section 5(4)(b) of the Ordinance would still provide protection for such an employee.

103.  In the present case, I have no doubt that, at the material time, the applicant was doing something which he was employed to do, namely, to remove the wires attached to the short wall at the Rooftop.  

104.  Even though Ng said that he had discussed with the applicant that the latter could dismantle the wires attached to the short wall by making use of a ladder, there is no evidence that Ng had expressly instructed the applicant not to squat on the kerb along the short wall.  Even if Ng had expressly instructed the applicant not to do so (or alternatively, even if (as suggested by Mr Chan) Ng should be taken to have instructed the applicant to use a ladder while working at the location in question), in my view, section 5(4)(b) of the Ordinance would take effect in giving protection to the applicant despite his breach of such an instruction, because, contrary to Mr Chan’s argument, the applicant’s dismantling work must be done for the purposes of and in connection with the 2^nd respondent’s business.  I do not accept the submission that since the 2^nd respondent was a scaffolding company, its business had nothing to do with dismantling work, because it is clear from Ng’s evidence that the Yuen Long Project, which involved dismantling work, was sub-contracted as a whole to his company.

105.  The respondents’ reliance on “added peril” is therefore to no avail.

QUANTUM

106.  I now turn to consider the question of quantum in case I am wrong in my conclusion on liability.

The applicant’s monthly earnings

107.  The first question which I have to consider is the amount of monthly earnings which should be adopted in the calculation of compensation under sections 9 and 10 of the Ordinance.

108.  Section 11(1) of the Ordinance provides that:-

“Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings—

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

109.  Section 11(2) of the Ordinance stipulates that:-

“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.”

110.  According to the applicant, although Ng invited him to work for the 2^nd respondent in June 2016, at the end of the day he did not work as such until August 2016 when he worked in the Repulse Bay Project.  He said he had worked thereat for 10 days, and had earned $8,000 in total.

111.  He did not work since then at all until 20 September 2016, when he worked for the 2^nd respondent again in the Yuen Long Project.  He stated that it was the 5^th or 6^th working day when he was injured on 26 September 2016.

112.  Mr Chan submitted that the applicant’s employment with the 2^nd respondent, if any, should be taken to have started in June 2016.  With respect, I disagree.  In my view, in the circumstances of the present case, if there was any employment relationship at all, such a relationship had only started when the applicant started to work in the Repulse Bay Project.

113.  On the other hand, I have no hesitation in rejecting Mr Wong’s argument that the monthly earnings of the applicant should be taken to be $20,800 ($800 x 26 days).  This assertion is plainly unsupported by evidence.

114.  In my view, since the applicant had worked for the 2^nd respondent for more than 1 month, the court should follow section 11(1) of the Ordinance in ascertaining the applicant’s monthly earnings.  The court should compare the amounts arrived at respectively by following the formula provided under sub-sections (a) and (b) thereof, and adopt the result which is more favourable to the applicant.

115.  I do not accept Mr Wong’s argument that section 11(2) is applicable, because it is the applicant’s own case that he had worked for the 2^nd respondent for more than one month, and he had not worked for any other employer during that period.  In 柯永明 訴 何炳池 [2008] 4 HKLRD 337, Yuen JA had made it clear that:-

“本席認同張法官裁定第11(1)(a)條只是適用於意外前申請人已至少一個月受僱於他工傷時同一僱主的情況。本席同意張法官在黎祥礦訴盧景森一案的判案書中第6段至第15段就第11(1)條的分析，在此不重複。即是說，如果意外前一個月申請人是受僱於同一名僱主，則第11(1)(a)條適用。”

116.  Pursuant to section 11(1)(a), the court has to find out the applicant’s earnings for the month immediately preceding the date of the accident.  As the applicant met the accident on 26 September 2016, this means the earnings for the period between 26 August 2016 and 25 September 2016.

117.  As aforesaid, the applicant stated that he started to work on around 20 September 2016, and it was the 5^th or 6^th day of work when he was injured.  As 25 September 2016 was a Sunday, and it was the evidence of the applicant that he normally did not have to work on Sundays, I find that the applicant had worked for 5 days prior to the accident in the Yuen Long Project and earned $4,000 ($800 x 5).

118.  The applicant could not recall when exactly in August 2016 that he worked in the Repulse Bay Project.  He only maintained that he had worked there for 10 days.  On the other hand, Ng stated that the whole project only lasted for 3 days.  On this matter, I would accept Ng’s evidence, because according to the applicant’s evidence, a Pakistani worker who was a friend of the applicant’s son had also worked together with him.  There is no evidence that that Pakistani worker had worked for a period shorter than that of the applicant.  If both the applicant and the Pakistani worker had worked for 10 days as alleged, the total labour cost of the Repulse Bay Project would amount to $16,000.  Judging from the undisputed evidence that the total subcontracting fee received by the 2^nd respondent was just $22,000, I am of the view that it was more likely than not that Ng would not have agreed to take up the job at such a price.  The total amount of cost borne by the 2^nd respondent must have been much less than $16,000.

119.  As mentioned, there is no evidence as to when exactly within the month of August 2016 that the work in the Repulse Bay Project was done.  As it is more probable that the 3-day period during which the applicant had worked in the Repulse Bay Project had fallen within the period between 1 August 2016 and 25 August 2016 than the period between 26 August 2016 and 31 August 2016, I find that the applicant had done the work in the Repulse Bay Project within the first 25 days of August 2016.  In other words, he had earned $2,400 ($800 x 3) from the 2^nd respondent in that period in August 2016.

120.  Hence, the applicant’s monthly earnings for the month immediately preceding the date of the accident should be $4,000[14].  His average monthly earnings while he was working for the 2^nd respondent in August 2016 and September 2016 would be $3,200 [($2,400 + $4,000)/2][15].  As the calculation done pursuant to section 11(1)(a) of the Ordinance would be more favourable to the applicant, the figure of $4,000 should be adopted as his monthly earnings.

The applicant’s loss of earning capacity

121.  By virtue of a Form 9 dated 18 April 2019, the applicant had been assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) to have suffered from 1% permanent loss of earning capacity by reason of the injury, namely, “right heel injury resulting in right heel pain”. 

122.  The applicant had filed a Notice of Appeal against the said Form 9.

123.  As a result of the applicant’s aforesaid appeal, leave had been granted by the court for a joint expert report to be filed, in which Dr Lam Kwong Chin opined that:-

(a)  If only the present ankle condition is considered, the applicant would have difficulty with jobs which require prolonged weight bearing, squatting or climbing.  He could do less strenuous manual work, such as building cleaning worker, car park attendant or job of similar nature.

(b)  Referring to the American Medical Association’s Guide to the Evaluation of Permanent Impairment (6^th edition), the applicant’s injured ankle would lead to 10% impairment of lower extremity, or 4% impairment of the whole person.

(c)  Based on the nature of the injury and its expected effect on the future working potential of the applicant, the loss of earning capacity is assessed at 4%.

124.  On the other hand, Dr Miu Yin Shun Andrew took the view that:-

(a)  The applicant would have marked difficulties to return to work as a general labourer, as a result of the accident.  The ankle pain would be exacerbated by prolonged walking or scaffolding climbing.

(b)  The applicant’s ability to lift heavy weights would also be affected.  He should consider to change to more sedentary type of work such as car park attendant.

(c)  The whole person impairment is assessed at 5%, and the loss of earning capacity is assessed at 7%.

125.  I prefer Dr Lam’s assessment because he had explained that his assessment on loss of earning capacity was arrived at by reference to the American Medical Association’s Guide to the Evaluation of Permanent Impairment, whereas Dr Miu did not clarify where he got the figure of 7% from. 

Section 9 compensation

126.  By reasons of the aforesaid, in the event the applicant is successful in establishing liability, compensation under section 9 of the Ordinance is assessed at $7,680 ($4,000 x 4% x 48).

Section 10 compensation

127.  It is undisputed that the applicant had been given sick leave for a total of 662 days, and that it had been certified in the Form 9 dated 18 April 2019 that those days of sick leave were necessary as a result of the applicant’s injury. 

128.  As aforesaid, the applicant had filed a Notice of Appeal under section 18 of the Ordinance against the said Form 9.  In the Notice of Appeal, he did not specify whether he was minded to appeal against the assessment of his loss of earning capacity, or the length of sick leave, or both.  He only informed the court and the respondents in his counsel’s Opening Submissions that his appeal was confined to the assessment of loss of earning capacity.

129.  At the trial, the respondents sought to argue, on the strength of Dr Lam’s expert opinion that sick leave up to 1 year was appropriate in the circumstances, that the court should “substitute its view as against the assessment of the Board”[16].

130.  Mr Wong objected strongly against the respondents’ stance on sick leave.  He submitted that the respondents were not entitled to make any submission on the length of sick leave because they had never filed any appeal against the assessment of the Board.

131.  Mr Chan referred to the Court of Appeal case of Yu Tat Kam v Chu Tung Shing & Another [2009] 6 HKC 411 and argued that the respondents could seek to rebut the presumption under section 10(2) of the Ordinance even if they had not filed any section 18 appeal.

132.  I am of the view that as far as the respondents’ challenge of the assessment of the Board is concerned, Mr Chan’s reliance on Yu Tat Kam was misconceived, because the issue in that case was the extent to which the four-fifths of the employee’s pre-accident earnings during the certified sick leave period should be deducted by reason of the earnings that he was earning, or was capable of earning, during the period of temporary incapacity pursuant to section 10(1) of the Ordinance (see further below).  The case has nothing to do with arguing against the sick leave period certified by the Board. 

133.  As mentioned above, the applicant had only made it clear at the beginning of the trial that his section 18 appeal was limited to the Board’s assessment on his loss of earning capacity.  I have thus considered whether it would be unjust if the respondents were not allowed to proceed with their challenge against the Board’s assessment on sick leave only because of the said very late move on the part of the applicant.  However, having considered the matter carefully, I am of the view that the respondents would only have themselves to blame if they did not take adequate steps (to file a section 18 appeal within time) in protecting their own interest.  They should therefore be debarred from arguing that only sick leave of up to one year should have been certified.

134.  However, that is not the end of the matter, because it seems to me that there is an alternative route by which the respondents may argue that the compensation payable under section 10 of the Ordinance should be reduced.  In the case of Yu Tat Kam, it was held by the Court of Appeal that:-

“…s.10(2) does not mean that the court is bound to award compensation at four-fifths of the employee’s pre-accident earnings during the certified period. As noted previously, s.10(1) contemplates that even for total temporary incapacity, the compensation would be reduced if there were earnings that the employee was earning, or was capable of earning, in some suitable employment during the period of temporary incapacity.” (per Yuen JA at paragraph 24 of the Judgment)

135.  Having said that, it is important to note what Yuen JA stated in paragraphs 26 and 27 of the same Judgment:-

“…in our judgment, the burden is on the employer to prove that circumstances existed for a reduction in compensation. If the employer can prove that the employee was actually earning money during the certified period (as in this appeal), those earnings would be put into the s.10(1) calculation. Also if the employer can prove that despite the certified incapacity, the employee was still capable of earning money in a ‘suitable’ employment, those potential earnings would also be put into the s.10(1) calculation.

Having said that, we think it would only be in rare circumstances where an employer could prove potential earnings where total incapacity has been certified, because (a) it is not only physical disability that incapacitates an employee from working – an employee may be incapacitated by discomfort or pain preventing him from concentrating, and (b) an employee is expected only to undertake employment which is suitable for him.”

136.  In the present case, Mr Chan argued that the applicant “should have been capable to return to workfield and work say as a car park attendant”[17] after August 2017 because:-

(1)  the applicant had stopped receiving treatment after his last occupational therapy session held on 2 August 2017;

(2)  the applicant had reached maximum state of recovery in around July/August 2017;

(3)  it was Dr Lam’s opinion that “in principle, sick leaves should be stopped if the condition is static or stable enough.  There is no need for sick leave to be continued until full recovery, as it might not be achieved in most cases”.

137.  I do not think the respondents had successfully discharged their burden in proving that this is one of those rare cases in which it could be said that the applicant had potential earnings during the certified sick leave period.  As Yuen JA pointed out, it is not only physical disability that incapacitates an employee from working.  The treating doctors of the applicant must have considered whether the applicant had the capability to work despite his complaint of discomfort and pain.  They had thought fit to grant sick leave to the applicant after having assessed his condition at the material time.  I cannot see any reason why I should come to a different conclusion.

138.  Hence, in the event liability is established, the applicant would be entitled to compensation under section 10 of the Ordinance in the sum of $70,613.33 (HK$4,000 x 4/5 x 662/30).

Section 10A compensation

139.  As aforesaid, parties have agreed that the award under this section should be $15,000. 

Advance payment

140.  If liability can be established, the total amount of compensation is $93,293.33 ($7,680.00 + $70,613.33 + $15,000.00).

141.  Mr Chan argued that since it is undisputed that Ng and Chan had paid a total of $139,000 to the applicant, the latter should not be entitled any further payment.

142.  In reply, Mr Wong submitted that Mr Chan was not right by reason of section 10(4) of the Ordinance, which provides that:-

“In the event of death or permanent incapacity following a period of temporary incapacity whether total or partial, no periodical or lump sum payments paid or payable under this section shall be deducted from any amount of compensation payable under section 6, 7, 8 or 9.”

143.  He further drew my attention to the case of Kan Wai Ming v Hong Kong Airport Services Ltd [2011] 3 HKLRD 497, in which it was held at paragraph 32 that:-

“…an employee’s compensation for temporary incapacity under s.10 and his compensation for permanent incapacity under s.9 should be kept separate and distinct, and that in case an employee is entitled to both, they cannot be set off against each other…”

144.  The position seems to be very clear. 

145.  However, Mr Chan submitted that when Ng and Chan made the monthly payments to the applicant, they did not have section 10 of the Ordinance in mind, and therefore such payments could not have been made under section 10.  As a result, it was said that the limitation imposed by section 10(4) is not applicable to the present case, and therefore such monthly payments could be used to set off the compensation payable under section 9 as well.  On the other hand, Mr Wong argued that if those payments were gratuitous payments (as Chan and Ng claimed to be), then such payments could not be set off against any compensation at all - not even compensation payable under section 10 of the Ordinance. 

146.  On my part, I take the view that the monthly payments made by Chan and Ng must be “payable under section 10” if Ng is found to be an employer.  Hence, in the event the applicant is successful in establishing liability, the respondents should be ordered to pay $7,680 only, as the remainder of the compensation would have been set off.

ORDER

147.  By reasons of the aforesaid, the applicant’s claim against the respondents is dismissed.

COSTS

148.  I make a cost order nisi that the applicant shall bear the costs of the respondents (including all costs reserved, if any), with certificate for one counsel, to be taxed if not agreed.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.  The above order nisi shall become absolute in the absence of application to vary within 14 days hereof.