CHAN YAU WING v. HYUNDAI ENGINEERING & CONSTRUCTION CO LTD AND OTHERS

DCEC672/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 672 OF 2003

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JUDGMENT

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Introduction

1.  In this employees’ compensation case, the Applicant (“AP”) claims that on 2^nd September 2002 (“Date”) whilst he was installing a cast iron pipe on the firstfloor of the clubhouse under construction (“Clubhouse”) at Hoi Fan Road, Kowloon (“Site”), his fingers were crushed against the wall by such pipe (“Accident”). AP therefore sustained injuries to his left index and middle fingers (“Injuries”). The 1^st, 2^nd and 3^rd Respondents (“Rs”) deny AP’s claim, saying that AP’s Injuries were self-inflicted.

2.  The following matters are not disputed :

(a)	Wong Kam Chuen (“Wong”) and AP worked in the trade for installing fire prevention pipes (安裝消防喉) (“FPP”).
(b)	The 3rd Respondent (“R3”) was the contractor responsible for the plumbing works (including the installation of cast iron water pipes (“Pipes”)) at Clubhouse (“Clubhouse Plumbing Works”). R3 sub-contracted Clubhouse Plumbing Works from the 2nd Respondent (“R2”), which in turn was a sub-contractor to the 1st Respondent (“R1”), the principal contractor of the construction works at Site.
(c)	On Date R3 employed Wong and AP to install Pipes in a room on the first floor of Clubhouse (“1/F Room”). R3 also employed Yu Wan Wah (“Yu”) as his project supervisor for Clubhouse Plumbing Works.
(d)	Inside 1/F Room, a Pipe (“Existing Pipe”) was already installed at a corner (“Pipe Location”) of the wall that faced the entrance to 1/F Room (“Wall”). Existing Pipe originated from downstairs, passed through the floor and extended for about 1m (or the height of the Bar table (30in)) above the floor of 1/F Room. Wong’s and AP’s task was to install/connect Pipes to Existing Pipe by the use of a block and tackle or hand pulley system affixed to Wall (“Wall Block”).
(e)	In the morning of Date, AP suffered Injuries at Site.
(f)	Wong and AP were scheduled to attend a safety course organised by R1 (“Safety Course”) on Date.
(g)	Dr Lee Po Chin and Dr Chang Shao, both orthopaedic experts, respectively opined that (i) AP’s alleged crush injury to his fingers was consistent with the fracture he sustained and (ii) AP’s symptoms were compatible with alleged injury caused by heavy metal falling onto AP’s left hand.

3.  The Certificate of Review of Assessment dated 11^th February 2004 certified AP’s loss of earning capacity in respect of Injuries was 4%. Nevertheless, the parties agree that AP’s loss of earning capacity should be 5.5%. I therefore allow the appeal against the assessment of loss of earning capacity arising from Injuries in the Certificate of Review of Assessment and assess the same to be 5.5%.

4.  AP, Wong, R3 and Yu gave evidence. R3 and Yu adopted their witness statements. Mr Sadhwani, counsel for AP, objects to the admissibility of certain post-Accident negotiations between the parties (“Negotiations”), which he submits are inadmissible due to their without prejudice nature. Mr Wong, counsel for Rs, argues that Negotiations are admissible discussions that reflect a scheme by Wong and AP to extort money from Rs. The evidence on Negotiations was admitted de bene esse.

5.  Mr Sadhwani in his closing submissions argues that R3 must have more documents that are prejudicial to Rs’ case that he has failed to disclose. In support, he refers to R3’s witness statement which said R3 made up “my own records” by reference to his inspections at Site, the book kept by Yu and the attendance book signed by the workers entering or leaving Site. However, R3 explained in evidence (which I accept) he was referring to his logbook that records each worker’s daily wages and 工數 (work periods) (“Logbook”), which has been disclosed during the discovery process. There has been no protest against Rs’ discovery since service of R3’s witness statement.

The issues

6.  The following are the issues in this case :

(a)	whether the alleged Accident happened in the manner AP alleged;
(b)	whether AP’s Injuries were sustained in the course of and arose out of AP’s employment with R3;
(c)	whether the presumption in section 5(4)(a) of the Employees’ Compensation Ordinance Cap.282 (“Ordinance”) is relevant;
(d)	whether AP’s Injuries were self-inflicted;
(e)	what were AP’s pre-Accident daily and monthly earnings;
(f)	whether Negotiations are admissible in evidence.

The law

7.  The burden is on AP to establish on balance that Accident happened and Injuries arose out of and in the course of his employment. “In the course of his employment” does not mean the currency of the engagement, but in the course of work for which the employee is employed to do and what is incident to it. It is a question of time, place and activity (Butterworths’ Hong Kong Personal Injury Service paras.[155]-[200] at pp.IV 103-103B and Ng Mung Khian for herself and the dependants of Chow Shek Fung, deceased v Wing Kwong Printing Co Ltd & anor CACV217/2004 (unreported, 29^th June 2005)).

8.  Section 5(4)(a) of Ordinance provides that for the purpose of Ordinance, an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment. However, such presumption can be displaced by evidence fit to be left to the jury (Yu Sang v International United Shipping Agency Ltd [1992] 1 HKC 542). Mr Sadhwani concedes that “if there is any evidence to the contrary, then the presumption does not apply and the evidence must be considered with all the evidence available”.

Overall impression of the witnesses

9.  This case turns largely on an assessment of the evidence since the witnesses for AP and for Rs described diametrically opposite versions of the events of the morning of Date. Having considered the totality of the evidence and observed the witnesses, I am persuaded that R3 and Yu are reliable and cogent witness, but Wong and AP are not. There are some discrepancies in R3’s and Yu’s evidence, but the material aspects of their evidence are unshaken under cross-examination. Mr Sadhwani’s suggestion that viva voce evidence about events in 2002 cannot be picture perfect applies to all witnesses. I do not find R3 and Yu evasive; instead I find them (particularly R3) genuinely frustrated by what they believed to be an unjustified claim. In coming to that view, I have borne in mind that it is conceded that AP suffered Injuries on Date at Site.

10.  I should say at the outset that there is no direct evidence of Injuries being self-inflicted and I am unable to conclude so on the evidence. However, Wong’s and AP’s evidence in respect of the alleged Accident still need to be assessed and weighed. In this respect, R3’s and Yu’s evidence on the surrounding circumstances in the morning of Date helps to shed light on the alleged Accident. They are not eyewitnesses, but they are not immaterial witnesses.

11.  I do not accept Yu’s evidence is weak because he could not recognise AP by the time of trial. This is unsurprising as he supervised all R3’s workers at Site and only saw AP for a short while one morning about two years ago. Further, I consider neither Yu nor Wong to be truly independent witnesses. Although Yu was employed by R3, he was not a permanent employee but was employed on a project by project basis. On the other hand, although it was suggested that Wong did not work with AP all the time and was not AP’s close friend, it is plain they have known each other for some time and have worked together on FPP projects (including Mongkok Project (see below)). As will be seen below, AP was the first person Wong thought of to be his co-worker when R3 offered him the plumbing job at Site. It reflects a familiar and congenial working relationship. In the circumstances, I find it more useful to assess Yu’s and Wong’s evidence in the context of the factual background.

Background

12.  Before I go into the heart of the disputed Accident, it is useful to consider some of the factual background matters as they help to understand the witnesses’ evidence and assist in their overall assessment.

(a) AP’s past working history

13.  For about two years, AP worked on a FPP project at Tseung Kwan O (“TKO Project”). On days when there was no work, he did part-time on-and-off casual hotel maintenance work (eg dismantling fire prevention pipe installations, “Hotel Project”). AP only worked on TKO and Hotel Projects at HK$500.00/day for the relevant period.

14.  For ten odd days until 31^st August 2002, AP worked on a FPP project in Mongkok (“Mongkok Project”). Wong also worked on such project. Work on the project ceased for a few days pending completion/approval of the project design, so AP did not work on 1^st September 2002.

15.  I accept that in 2002 AP was an “intermediate worker” (中工) mainly working in FPP (not plumbing) trade and earning HK$500/00/day, which was the daily wage rate for FPP intermediate workers. There is no dispute that Wong is a master or “big worker” (大工) in FPP trade.

(b) Employment of workers at Site and their wages

16.  Logbook reveals that the daily wages of a master’s assistant/“miscellaneous worker” (雜工), an intermediate worker and a highly skilled master/leader employed by R3 for Clubhouse Plumbing Works at Site were respectively HK$300.00, HK$400.00-HK$600.00 and HK$770.00. When Clubhouse Plumbing Works commenced, plumbing masters and miscellaneous workers worked together in two-men teams. R3 previously employed Law Kam Sau (“Law”) to handle simple work as a master’s assistant/miscellaneous worker at HK$300.00/day (see Law’s wage receipts and Logbook).

(c) Plumbing jobs for Wong and APat Site

(1) AP’s case

17.  On 1^st September 2002, R3 telephoned Wong to ask him to help with installing Pipes at Site for a few days at HK$700.00/day. R3 considered daily wages of HK$600.00 too high for Wong’s assistant. He asked Wong to get his own assistant at a cheaper rate. Wong thought of AP whom he had worked with previously on FPP projects and whose skill in handling/lifting big-sized Pipes was satisfactory. Wong urged R3 to employ AP (who had no work for a while) to be his assistant and R3 eventually agreed. He also agreed AP’s wages at HK$500.00/day.

18.  On the same day, Wong telephoned to inform AP who said he was on casual leave for two days. AP found the plumbing work and pay acceptable. They arranged to have morning tea(“Morning Tea”) together at 7:45am on Date.

(2) Rs’ case

19.  R3 had not employed Wong previously but knew his sub-contractor did. On 28^th/29^th August 2002, R3 ran into Wong in Mongkok. Wong asked for work and gave his telephone number to R3. R3 was in the plumbing trade, which was different from Wong’s FPP trade, but he promised to telephone Wong if there was suitable work.

20.  On 31^st August 2002, R3 checked the status of the plumbing works at 1/F Room where Pipes were laid out on the floor. He required some workers to carry out plumbing work at 1/F Room (“1/F Room Works”). The work was not complicated and R3 decided to employ Wong even though he was a FPP worker whom he had never employed for plumbing work.

21.  In the evening of 31^st August 2002, R3 telephoned to offer Wong the job for HK$700.00/day since a FPP master/big worker was usually paid HK$70.00/day less than a plumbing master. Wong told R3 he would work better with someone he knew and there was a young man (without disclosing AP’s name) who could be his co-worker. It was agreed Wong’s co-worker (to be treated as if he had no experience) would be paid the usual rate of HK$300.00/day (same as Law’s wages before she left) and they would start work on Date.

22.  R3, who was responsible for employing workers, negotiating their wages, recording their daily wages and 工數 in Logbook and paying their wages, would inform Yu the workers he employed, their general scope of work and their wages. So on 1^st September 2002, R3 told Yu he would bring two workers (a FPP master who would be paid at HK$700.00/day and an apprentice at HK$300.00/day) to Site on Date to finish some loose-end plumbing work. R3 told Yu to assign them to work on the big Pipes (because they were FPP workers and R3 did not know the level of Wong’s plumbing skills).

(3) Analysis

23.  I prefer R3’s version of events. Although R3’s witness statement said it was Wong who telephoned him on 1^st September 2002, he clarified in evidence that it was on 31^st August 2002 that he telephoned to offer Wong the plumbing job at Site. This is consistent with Wong’s evidence. I do not think this discrepancy, which has been clarified, affects R3’s overall veracity.

24.  Wong claimed R3 employed him twice in 1994 and 2002 on a casual basis to work at construction sites, which explained why R3 had his telephone number. He also claimed R3 told him that 1/F Room Works were urgent and might not be finished on time. But I am not persuaded that these were the reasons why R3 employed a FPP worker, namely, Wong, to carry out plumbing works in 1/F Room.

25.  R3 has been a plumbing contractor for some time. There is no evidence that he has any difficulty in engaging plumbing workers. Rather Logbook shows he all along employed plumbing workers of different levels of skills to work at Site. The more likely scenario (which I accept) is that Wong worked previously for R3’s sub-contractor but ran into R3 in late August 2002. He took the opportunity to give R3 his telephone number and ask for work. It was under these circumstances that R3 asked Wong to carry out 1/F Room Works (which were straightforward plumbing works) for a few days.

26.  Mr Sadhwani suggests R3’s evidence is unreliable because even on Rs’ case it is strange for R3 to employ AP (whom he did not know) on Wong’s request when R3 normally employed workers whom he knew and when he had not worked with Wong frequently. It is only expected that as a contractor of some years R3 would normally employ plumbing workers whom he knew. But he explained and Logbook reveals that when Law left Site after 12^th August 2002, he did not employ any replacement miscellaneous worker. As Clubhouse Plumbing Works neared completion, the plumbing masters and intermediate workers remaining at Site worked independently. So when a load of big Pipes arrived at Site for 1/F Room Works and Law was no longer available, there is no reason for R3 to refuse Wong’s recommendation of AP when AP’s daily wages were, as I will find below, the same as those of a miscellaneous worker. I disagree that R3’s evidence is unreliable in this respect.

(d) Morning Tea

27.  There is no dispute that Wong and AP met up for Morning Tea on Date. AP gave evidence that after Wong introduced him to R3, he hardly said anything whilst Wong and R3 discussed Clubhouse Plumbing Works. Wong on the other hand said he and AP ran into R3 by accident, but he later also said R3 asked AP and him to join R3 for Morning Tea, which they did, whereupon they all proceeded to discuss Clubhouse Plumbing Works. R3 gave evidence that Wong introduced AP to him during Morning Tea, but as it was almost 8:30am, they ate quickly and there was no discussion.

28.  Wong, AP and R3 all said in evidence (which I accept) there was no discussion over Morning Tea about Wong’s and AP’s wages, which had been confirmed earlier by telephone. Mr Sadhwani criticised the discrepancy with R3’s witness statement, which stated he agreed to Wong’s and AP’s daily wages during Morning Tea. Upon considering the totality of the evidence, I do not consider that such discrepancy detracts from R3’s overall credibility. He has clarified this matter in his evidence, which evidence is consistent with AP’s case.

(e) Wong and AP attending Site on Date

29.  Wong, AP and R3 arrived at Site at about 8:30am. Wong and AP as new workers had to undergo registration procedures and attend Safety Course to obtain work permits for entering and leaving Site. At about 8:35-8:40am (Wong was unsure), R3 brought them to meet Yu. R3 gave evidence that as he introduced Wong and AP to Yu, he told Yu their wages and suggested that they work on the big Pipes. But Yu’s evidence was that the introduction took less than five minutes during which there was no discussion of Wong’s and AP’s wages or work. R3 said in evidence that he then started two new pages for Wong and AP in Logbook by writing “9月 消防佬黃鑑權(sic) 大工$700.00” and “9月 陳友榮 小工$300.00” respectively thereon. At about 8:45am, R3 left Site to buy materials.

30.  I accept that R3 informed Yu (who as project supervisor responsible for assigning specific tasks to workers would be interested in having some idea of the level of their skills) he had employed Wong and AP and told him their wages, in any event before he left them with Yu to carry out 1/F Room Works. I also accept R3 told Yu he intended Wong and AP to work on the big Pipes. Whether R3 mentioned these matters to Yu on 1^st September 2002 and/or on Date is immaterial and upon considering the totality of the evidence, I do not find the discrepancies between R3’s and Yu’s evidence in this respect have any substantial bearing on the overall veracity of Rs’ evidence.

(f) Yu’s instructionsto Wong and AP

(1) AP’s case

31.  Yu showed Wong and AP 1/F Room. Wong said inside 1/F Room there was a low wall (about the height of the Bar table (30in) or lower) about 3ft away from but parallel to Wall (“Low Wall”) that extended about half the length of 1/F Room. AP did not mention Low Wall at all. Yu instructed Wong and AP to install/connect Pipes to Existing Pipe in order to route such piping to another point on Site.

32.  Shortly after 9:00am, Yu took Wong and AP to the open area on the ground floor outside Clubhouse near Site entrance (“Storage Area”) where about ten to twenty 10-12in diameter and 1.5-2.5m Pipes were stored. Wong agreed they were factory-manufactured standard-sized Pipes. AP said one short (about 1-1.5m) and straight 10-12in diameter Pipe (“Short Pipe”) weighed over 300lbs, but Wong said Short Pipe and a curved/bent Pipe (“Bent Pipe”) each weighed 100-200lbs.

33.  Wong knew how to read the computer-printed Pipe installation drawing Yu gave him. They made measurements, adjusted the drawing, discussed the routing of Pipes and agreed on the installation method. Wong accompanied Yu to search for tools/equipment (eg tool box, screws, tools for tightening screws, flange plastic) which were scattered all over Site. Yu did not give hemp/nylon ropes to Wong. In all, Yu’s instructions and the search for tools/equipment took about an hour.

(2) Rs’ case

34.  Yu brought Wong and AP to 1/F Room. Both R3 and Yu did not refer to any Low Wall. Pipes of various lengths (including two Short Pipes and some Bent Pipes) as well as tools were already laid out on the floor. The diameters of the two Short Pipes were 150mm/6in and 250mm/10in respectively. Each Short Pipe and Bent Pipe weighed 150 catties and 100 catties respectively. Prior to Wong and AP taking over the installation work on Date, R3’s workers had connected a 3m Pipe to a Bent Pipe. Yu instructed Wong and AP to (a) join Short and Bent Pipes together at the flange (ie a wide metal rim at one end of Pipe with screw holes) by inserting screws into the screw holes and tightening them and (b) then use Wall Block to lift the joined Short and Bent Pipes (“Connected Pipe”) to connect it to Existing Pipe at Pipe Location. Yu left 1/F Room at about 8:40am.

(3) 1/F Room

35.  There are crucial differences between AP’s and Rs’ case as to the layout of 1/F Room prior to and/or at the time when Yu first brought Wong and AP to 1/F Room, which impact on the veracity of Wong’s and AP’s descriptions of the alleged Accident. I analyse the state of 1/F Room as follows :

(a)	I accept on balance that R3 inspected 1/F Room prior to telephoning Wong on 31st August 2002. This is consistent with R3’s practice (which I accept) of checking works in progress at Site each workday. I also find it likely that R3 would check the plumbing work that need to be done at 1/F Room before deciding to employ workers.
(b)	Mr Sadhwani emphasises the discrepancy between Yu’s evidence that there was no window in 1/F Room and the evidence of the other witnesses that there was a window and suggests that Yu went to the wrong room. In fact, the evidence shows that it was Yu who claimed there was a very small window in 1/F Room whilst R3/Wong said there was fluorescent lighting in 1/F Room but no window. I do not see how the existence or otherwise of a very small window affects the core issues for nothing turns on the availability or otherwise of a window or natural lighting at 1/F Room.
	But I disagree that Yu went to the wrong room either before the alleged Accident or afterwards (see below). It is common ground amongst the witnesses that Existing Pipe and Wall Block were installed in 1/F Room, so there could not have been any mistake. There is also no dispute that Yu brought Wong and AP to the room where they were to carry out 1/F Room Works (ie 1/F Room). Yu gave evidence that he went to 1/F Room after the alleged Accident and saw Pipes laid out in the same fashion as he had seen when he brought Wong and AP to the room earlier in the morning. It is incredible that Yu would have gone into a wrong room within the same morning and been unaware of it. On Rs’ case, which I accept, Pipes were fully laid out in that room and they would be hard to miss or mistake. Even on AP’s case, Yu, having spent an hour giving Wong and AP instructions in that room as well as searching for and bringing tools to that room, was unlikely to have gone to the wrong room.
(c)	AP, R3 and Yu did not mention Low Wall in 1/F Room. Only Wong said there was Low Wall within 1/F Room. Low Wall was said to be a substantial construction about half the length of 1/F Room, about 30in high and 3ft away from but parallel to Wall. It is not an object that could have been easily missed. Unlike the matter of the small window, the existence or otherwise of Low Wall materially affects the credibility of the evidence as to the positions/alignments of Connected Pipe/Wall Block, Wong and AP and as to how the alleged Accident happened (see below). I find on balance there was no Low Wall. Wong’s assertion of the presence of Low Wall is not the result of mere inadvertence but reflects the unreliability of his evidence.
(d)	I further find on balance that as at Date there were no Pipes at Storage Area. Yu did not bring Wong and AP to Storage Area or instruct them to carry Pipes upstairs to 1/F Room, and they did not transport two Short Pipes and one Bent Pipe to 1/F Room as alleged. I accept Yu’s evidence that Pipes (including Short and Bent Pipes) were already laid out on the floor at 1/F Room when he brought Wong and AP there on Date.

36.  In coming to the findings in (d) above, I refer to the following :

(a)	There was a block and tackle installed at the upper floor of Clubhouse for lifting materials (including Pipes) from the ground floor to the upper floors of Clubhouse (“Clubhouse Block”). Wong admitted that Clubhouse Block was used to lift Pipes on the few days he worked at Site after Date.
(b)	R3 explained (and I accept) it was not the usual practice to leave Pipes delivered to Site on the ground floor. Yu would assign plumbing masters/ workers to transport Pipes upstairs. Although Rs fairly accepted it was physically possible for two persons to manually carry one Short or Bent Pipe upstairs, Yu explained Pipes were normally lifted upstairs via Clubhouse Block. In respect of Pipes that were laid out in 1/F Room, Yu said (and I accept) about a week before Date he instructed plumbing workers to use Clubhouse Block to lift Pipes from the ground floor to the first floor and then push such Pipes by handcart into 1/F Room where they were laid out.
(c)	Mr Sadhwani submits it is improbable for R3 to ask plumbing masters to transport Pipes when masters’ assistants/apprentices could do such work. I disagree. In light of the size, number and weight of Pipes and the need to carry out plumbing works on the upper floors of Clubhouse, it is probable and reasonable that once Pipes were delivered to Site, the plumbing workers would be assigned to lift/transport Pipes to the working sites on the upper floors before getting on with their own individual tasks. At the initial stages of Clubhouse Plumbing Works, the plumbing works required the plumbing masters to work with their miscellaneous workers/apprentices in pairs. There is no reason for letting the masters idle without assistance whilst their co-workers were assigned to transport Pipes. Later, when Clubhouse Plumbing Works neared completion and Law left Site, there were no other miscellaneous workers available at Site.
(d)	I therefore find Yu would not have instructed Wong and AP to manually transport Pipes from Storage Area to 1/F Room. I find Wong’s explanation under cross-examination that Clubhouse Block was not available on Date feeble and unpersuasive. Wong and AP did not say what task Clubhouse Block was engaged in or give any substantial reason why it could not be used.
(e)	Although AP said he started his actual work at Site (which is a crucial matter for AP’s case) by transporting Pipes from Storage Area to 1/F Room, this activity was not mentioned in Wong’s and AP’s witness statements. AP acknowledged he did not tell his solicitors the details.

37.  R3 said (and I accept) he saw 6in and 10in diameter Pipes/Bent Pipes laid out on the floor of 1/F Room on 31^st August 2002. I further accept Short Pipe as laid out in 1/F Room was not connected to Bent Pipe. Mr Sadhwani contends R3 could not have been sure whether Pipes were laid out in 1/F Room or whether they were connected when there were 7-9 workers working at Site and he did not make any written record of their works in progress. But R3 had been a plumbing contractor for quite some years. He was responsible for monitoring progress of works to meet deadlines and for buying materials for the works. He would have to be well aware of the progress of works in order to properly perform such functions. I am satisfied on balance that given his role and experience, R3 would (as he confirmed in evidence) be able to make a mental note of the overall progress of the works without the aid of documentary records. I further accept R3’s evidence that because he was about to employ new workers (namely, Wong and AP) and in due course had to assess their work and skills, he paid special attention to the layout on 31^st August 2002.

(4) Yu’s instructions

38.  I accept on balance that Yu issued simple instructions to Wong and AP, namely, connect Short and Bent Pipes by inserting and tightening screws at the flange and lift Connected Pipe to install/connect it to Existing Pipe at Pipe Location. Given the simplicity of Yu’s instructions, I do not accept that he gave any plumbing installation drawing to Wong.

39.  I further disagree that it took an hour for Yu to give instructions to Wong and AP and to search for tools. I find it improbable that Wong accompanied Yu to go around Site to rummage for tools/equipment. R3 and Yu all along intended Wong and AP (who were not experienced plumbers – see analysis below) to work on the big Pipes. In such circumstances, there is no reason for R3 to leave Pipes, tools and equipment scattered over Site. Further, even on AP’s case, had Yu and Wong taken an hour to sort out the instructions (including instructions for the transportation of Pipes from Storage Area to 1/F Room) and to search for tools and equipment for the assigned tasks, there is no reason why, according to AP, Yu failed to give hemp/nylon ropes to Wong and AP or why they did not ask Yu for the same. According to Wong and AP, hemp/nylon ropes were normally used to wrap around Pipe for lifting by block and tackle.

The alleged Accident

(a) AP’s evidence

40.  At about 10:00am, Wong and AP went to Storage Area to carry Pipes to 1/F Room. They tied one Pipe to a small water pipe with hemp/nylon ropes borrowed from fellow FPP workers at Site and lifted Pipe by carrying the small water pipe over their shoulders. They then carried Pipe up the lobby staircase to 1/F Room. Wong and AP transported two Short Pipes and one Bent Pipe to 1/F Room in such manner, but Wong could not remember the time incurred for such task.

41.  At 1/F Room, Short and Bent Pipes were untied and laid out in the floor. The hemp/nylon ropes were returned to FPP workers. Wong and AP joined the flange at one end of a Short Pipe (“Joined Flange”) to Bent Pipe to become an inverted “L”-shaped or figure “7”-shaped Connected Pipe with Bent Pipe at the top and Short Pipe at the bottom. Joined Flange was at the middle of the long and straight arm of Connected Pipe (“Straight Extension”). Bent Pipe had an open flange (“Open Flange”) at the end of the short bent arm of the inverted “L”-shape or figure “7”-shape (“Bend Extension”). Connected Pipe weighed about 400 lbs. It took half an hour to connect Short and Bent Pipes but Wall Block was not used for such purpose.

42.  Since Yu did not provide hemp/nylon ropes and AP did not borrow such ropes again from FPP workers at Site, AP tied Wall Block’s iron chain around Connected Pipe (“Iron Chain”). Wong stoodabout 1m odd to the left of AP and faced Wall and Wall Block. He could see Connected Pipe being lifted as he pulled on the other Wall Block iron chain (“Block Chain”). AP used his hands to hold onto Connected Pipe as it was being lifted. Unfortunately, due to insufficient friction between Connected Pipe and Iron Chain, Iron Chain could not keep Connected Pipe in position. When Connected Pipe was lifted to about 2m (or 2m x 3.281 = 6.5ft) high, Iron Chain suddenly slid upwards. Connected Pipe immediately inclined to one side and slipped down. Bend Extension/Open Flange knocked AP’s left fingers against Wall. AP partially withdrew his left hand, but was not fast enough to release all his fingers. AP’s fingers were hit once but were not trapped. Wong saw Bend Extension catching AP’s left hand. He realised something had happened and stopped pulling on Block Chain. Connected Pipe remained hanging in position after Accident.

(2) Analysis

43.  There is no doubt Wong and AP started their period of employment when R3 brought them to Site in the morning of Date. But this is a different thing from “in the course of employment” (Charles R Davidson and Co v M’Robb or Officer [1918] AC 304, 321). Yu said the assigned 1/F Room Works were not complicated, so when he left 1/F Room he allowed Wong and AP to get on with such work before attending Safety Course. The question is whether Wong and AP did get on with the assigned work.

44.  AP has to establish on a balance of probabilities that he was engaged in actual work for which he was employed or some activity that was naturally or reasonably incidental to his employment and/or the actual work (Charles R Davidson and Co’s case (supra) and R v National Insurance Commissioner, ex parte East [1976] ICR 206, 208). Here, AP claimed that he was engaged in the actual work for which he was employed at the time of the alleged Accident. There is no evidence of any other incidental activity he might have been engaged in. The key issue then becomes whether the alleged Accident happened as AP claimed. This in turn raises two primary factual disputes, namely, whether Wong and AP joined Short and Bent Pipes together at 1/F Room and whether Connected Pipe was lifted via Wall Block for installation. I find on balance that Rs’ case (which I accept) is more probable and persuasive.

45.  To connect Short and Bent Pipes, flange plastic was applied and screws inserted into the screw holes of Joined Flange and tightened by tools with the use of screw rings. AP claimed he and Wong joined one Short Pipe to one Bent Pipe at 1/F Room and he suffered Injuries in the course of lifting Connected Pipe. Yet Wong and AP only had vague ideas of the dimensions of such Pipes and they did not mention the joining of Short and Bent Pipes in their witness statements at all. On balance, I prefer Rs’ evidence that Short Pipe was not connected to Bent Pipe. I disagree with Mr Sadhwani’s submission that Yu did not appear very sure in his evidence. When Yu’s evidence is considered as a whole, I note he consistently confirmed several times in his evidence that Short and Bent Pipes were not connected.

46.  On balance, I am also not persuaded by AP’s case as to how the alleged Accident happened :

(a)	The crux of the alleged Accident was the sudden slide of Iron Chain (which was wrapped around Connected Pipe for lifting it via Wall Block) causing Connected Pipe to swing and hit AP’s left hand against Wall. Wong and AP said they knew hemp/nylon ropes were normally used to wrap around Connected Pipe to tie it to Wall Block for lifting. It is strange even on AP’s case that when Yu and Wong rummaged around Site for tools and equipment to carry out 1/F Room Works, they did not look for such ropes.
	Further, Wong and AP claimed they borrowed such ropes from FPP workers at Site for carrying Pipes upstairs from Storage Area by using a small water pipe. Presumably such ropes were untied after the transported Pipes reached 1/F Room. It is again strange for Wong and AP to return the ropes to FPP workers when they knew the ropes were required for the next step of lifting Connected Pipe by Wall Block. Even if they had returned such ropes to FPP workers, there is no reason why they could not have re-borrowed the ropes. I find Wong’s and AP’s assertions in this respect unreliable. The probability (which I accept) is that Wong and AP did not borrow such ropes and did not transport Pipes from Storage Area to 1/F Room.
(b)	Both AP and Wong said Wong was positioned to the left of Wall Block and was responsible for pulling on Block Chain to lift Connected Pipe. AP at first said that he was slightly to the right of Wall Block and that Connected Pipe/Wall Block was between Wong and him, but he later said he was directly in front of Connected Pipe and Wall Block. On the other hand, Wong said AP stood outside Low Wall facing Connected Pipe and the respective positions of Wong, Wall Block/Connected Pipe and AP were like the Chinese character “品”. Such discrepancies impact on the veracity of Wong’s and/or AP’s version on how the alleged Accident happened (see below).
(c)	As alluded to above and seen below, Wong’s description of the alleged Accident circled around Low Wall. My finding that no Low Wall existed severely undermines the veracity of Wong’s version of the alleged Accident, which I find unreliable. The fundamental and obvious conflict between Wong’s and AP’s evidence as to the existence or otherwise of Low Wall also weakens the general credibility of AP’s case on how the alleged Accident happened.
(d)	However, even if Low Wall existed, Wong’s version of the alleged Accident is still incredible and improbable.
	Pipe Location was at the corner of Wall behind Low Wall. Connected Pipe (tied by Iron Chain) lay outside Low Wall. As Wong pulled on Block Chain, Connected Pipe was slowly raised, leaning against Low Wall at an angle with Bend Extension closer to Wall and the bottom end of Straight Extension hanging outside Low Wall. With Straight Extension jutting outside Low Wall at an angle, AP would have stood to the right and not directly in front of Connected Pipe (ie in the lower right position of the Chinese character “品” as Wong described).
	Wong did not dispute AP’s claim that Connected Pipe was lifted to about 2m (or 6.5ft). I assume the reference to 2m was to the top and not the bottom of Connected Pipe otherwise Connected Pipe would have been hanging free and not leaning against Low Wall. Mr Wong, counsel for Rs, submits that Wong’s assertion that Connected Pipe was leaning at an angle against Low Wall is unbelievable because the whole vertical length of Connected Pipe was just about 2m (Straight Extension/Short Pipe was 1.5m and the arm of Bent Pipe connected to Straight Extension only added another 20in).
	AP and Wong both claimed (i) AP used his right hand to hold onto Straight Pipe near Joined Flange to manoeuvre and steady Connected Pipe as it was being lifted and his left hand to grip Open Flange, and (ii) AP was injured when Open Flange swung away and caught his left hand as it hit against Wall. In the circumstances, AP’s left hand must have been positioned on the side of Open Flange close to Wall and away from AP (“Grip Position”). If AP’s hand were positioned on the outside rim of Open Flange closer to AP, then his left hand would not have been knocked against Wall. Given the curved shape of Open Flange and the 10in-diameter of Connected Pipe, Grip Position (which must necessarily also be the point of contact between Open Flange and Wall) could not have been more half a foot from the top of Connected Pipe that was being lifted to about 2m (ie above AP’s shoulder level).
	As observed at the trial, AP was not of a large stature. It is difficult to picture AP standing upright outside Low Wall to the right of Connected Pipe (ie perpendicularly more than 3ft from Wall) with his left arm extending above shoulder level diagonally upwards for his left hand to hold Grip Position on Open Flange at just below 2m and going still further right up to Wall when Bend Extension swung to knock his fingers against Wall. Such distance would have been more than 3ft and certainly more than the length of AP’s left arm. I find such description of the alleged Accident inherently improbable and unreliable.
(e)	One expects commonality in Wong’s and AP’s descriptions of the alleged Accident since (i) both of them said Wong saw how the alleged Accident happened and (ii) Wong did not refer to any difficulty in observing AP’s actions. But apart from the inherent improbability of Wong’s version of the alleged Accident, there are other critical discrepancies between Wong’s and AP’s observations that impact on the alleged mechanism of AP’s Injuries.
	An example is the positioning of Bend Extension and AP’s left hand just before the alleged Accident. First, whilst AP gave evidence that Bend Extension ending with Open Flange faced him (ie faced outwards) when Connected Pipe was being lifted, Wong said Bend Extension faced away from AP. Secondly, AP said he used his left hand to grip Open Flange in order to hold and manoeuvre Connected Pipe as it was being lifted. But Wong said when Bend Extension was about 1-2m high (but he was unsure of the height), AP started to use his left hand to pull Bend Extension towards himself, so that when Iron Chain later suddenly slid upwards and Bend Extension swung towards Wall there was a match of force between AP’s action of pulling Bend Extension outwards towards himself and the swing of Bend Extension inwards towards Wall. There are no or no satisfactory explanations for these very different observations, which raise grave doubt as to whether the alleged Accident occurred as claimed.
(f)	Despite Wong’s and AP’s claim that Open Flange caught AP’s left hand (thereby causing Injuries) when it hit against Wall (this being the crux of AP’s claim), their witness statements only briefly referred to Pipe inclining to one side and pressing onto AP’s left fingers. There was no mention of the connection of Short and Bent Pipes and no description of how Bend Extension swung suddenly to hit against Wall after a match of force. This goes to the core of the dispute and raises doubt as to the veracity of the description of the alleged Accident.
(g)	On the other hand, AP’s version of the alleged Accident had Connected Pipe leaning at an angle but without any Low Wall as it was being lifted. It is unclear from AP’s evidence as to whether the bottom end of Connected Pipe was resting on the floor or not as it was being lifted. It was unlikely though as Connected Pipe (which I again assume to refer to the top of Connected Pipe) was lifted to about 2m high. Even if it were vertical or close to vertical, the bottom end of Straight Extension should be barely touching the floor given the aforesaid dimensions of Short, Bent and Connected Pipes. On this basis, if Connected Pipe were leaning at an angle, it should be hanging free. This is quite different from Wong’s assertion that Connected Pipe rested on Low Wall.
	But if, on the other hand, the bottom end of Straight Extension rested on the floor whilst Connected Pipe was being lifted, Iron Chain would not have been taking its full weight. Even if Iron Chain suddenly slid due to insufficient friction, it is doubtful whether it would have resulted in such a vigorous and heavy swing of Bend Extension as described by AP.
	Further, as explained above, AP’s evidence is uncertain as to whether he stood directly in front or to the right of Connected Pipe. This impacts on the distance from AP’s position to Open Flange’s point of impact on Wall. If Connected Pipe leaned at an angle with its lower portion jutting outwards, it is unlikely that AP stood directly in front of Connected Pipe. But if he stood slightly to the right (as AP at one stage said and as Wong claimed), with Grip Position just under 2m high, it is still a considerable distance above shoulder level from AP’s position to reach the point of impact against Wall. On considering the totality of the evidence, I find AP’s description of the alleged Accident, quite undermined by Wong’s evidence, unreliable.

I find AP has not proved on balance that Connected Pipe was lifted by Wall Block or the alleged Accident happened as claimed. There being no evidence of any other incidental or work-related activity, I find there is no sufficiently reliable or cogent evidence that establishes on a balance of probabilities that the alleged Accident/Injuries happened in the course of AP’s employment with R3.

47.  In coming to the aforesaid conclusion, I have given due weight to the fact that on Date AP came to Site to work and he suffered Injuries that morning. I have also considered the comments of the orthopaedic experts in paragraph 2(g) above. I have warned myself that no matter how regrettable the situation is for the employer, injuries suffered by an employee early in the morning on the first day of work are not necessarily suspicious. But upon consideration of the evidence, I am afraid although the court sympathises with AP for suffering Injuries, the evidence in relation to the alleged Accident is not sufficiently reliable or cogent. Hence, the cause of AP’s Injuries remains an unresolved mystery. In the circumstances, the presumption under section 5(4)(a) of Ordinance does not arise. Even if it does, it has been rebutted on an analysis of the available evidence.

Events after AP sustained Injuries

48.  Mr Sadhwani suggests that events that happened after Accident will show the unreliability of Rs’ case. Hence, it is necessary to examine these matters. There is no dispute that (a) Yu arrived to see AP’s left hand bleeding, (b) Yu informed R3 by telephone, (c) R1’s safety officer (“Safety Officer”) came to give first aid to P and (d) R3 returned to Site.

(1) AP’s case

49.  After Accident, AP looked pale, so Wong supported him to the open place at the staircase area on the first floor (“Staircase Area”). A FPP master notified R1. Yu came about 10-15 minutes later and telephoned R3. Safety Officer came and applied dressing to AP’s wound. Safety Officer also took down AP’s particulars, asked AP how and where he got injured, and told AP to seek medical treatment at the hospital. AP said R3 arrived as his wound was being dressed. Wong said it was about 20-30 minutes after Accident. R3 did not say anything or ask about Accident. Wong said after AP left for the hospital at about 12:00 noon, he went with “them” (Wong could not remember who) to 1/F Room before lunch to have a look.

(2) Rs’ case

50.  After Yu left 1/F Room, he went to the ground floor to supervise some work. A short while later, on his way back to 1/F Room to see how Wong and AP were doing, a female worker told him AP was injured. He went to see Yu and Wong asked him to telephone R3. Yu did so, telling R3 there was an injury but did not say how it occurred. Yu also asked R3 to inform the construction section and to return to Site. He also berated R3 for employing AP who got injured so early during the day. R3 noted it was only 9:15am. R3 telephoned the construction section (whose foreman informed Safety Officer) and then immediately returned to Site. Yu also telephoned to inform R1’s safety section.

51.  AP was accompanied to Staircase Area and then to the ground floor. Safety Officer arrived to dress his wound. R3 returned to Site before 9:25am and went to the office of the construction section to find its chief. Yu saw R3 at about 9:35 am. When R3 saw AP, he asked whether the bleeding had stopped and whether AP should go to the hospital for treatment. AP said it was not necessary, but Safety Officer insisted he did so. R3 saw AP was able to move his fingers without difficulty. At about 10:00am, AP left for the hospital. R3 did not know whether Wong accompanied AP.

52.  R3 said he and Yu inspected 1/F Room without Wong. The layout at 1/F Room was the same as on 31^st August 2002. Bent Pipe was not yet connected to Short Pipe; not even the screws were fitted yet. R3 was angry and upset because he did not see any work done by Wong and AP. Upon Safety Officer’s enquiry, R3 admitted he was AP’s employer. However, R3 considered the circumstances suspicious, so he told Safety Officer he doubted whether AP had started work when the alleged Accident happened and he suspected it was for extortion of compensation. But Safety Officer told him once AP entered Site, the alleged Accident should be treated as having happened in the course of employment.

53.  Yu on the other hand said he went to 1/F Room alone and saw Pipes laid out in the same position as when he left the room earlier in the morning. There were screws on the floor but none had been fitted to Pipes. Short and Bent Pipes were not yet connected. The 3m Pipe (which R3’s workers had previously connected to a Bent Pipe) had not been moved. Yu did not see any Pipe attached to Wall Block.

(3) Analysis

54.  Mr Sadhwani questions the veracity of R3’s and Yu’s evidence in that they at first said Wong was not asked about Accident, but later said he was asked on several occasions.

55.  In respect of Yu’s evidence, he said at one stage that since AP was injured, he did not press AP on how he suffered Injuries. He later said AP was asked about the alleged Accident and replied it was a trivial matter. When Yu asked AP whether he had to go to a hospital, AP replied there was no need. Yu’s witness statement said he asked AP about Injuries and AP said Pipe hit him. Yu did not ask Wong about the alleged Accident and Wong did not say how it happened.

56.  For R3, he said that when he returned to Site Yu told him AP claimed he was injured by Pipe. R3 at first said he did not ask Wong how the alleged Accident occurred, but he later said he did ask AP and Wong, who did not give a straight account of how the alleged Accident happened. AP also made light of his Injuries and said it was not necessary to see a doctor. R3 did not pursue further questions vis-à-vis AP as someone suggested his wound should be dressed and he should see a doctor.

57.  I accept there are some discrepancies in R3’s and Yu’s evidence, but I do not consider them material to the core disputes between the parties nor do they affect R3’s and Yu’s overall veracity. They also cannot overcome the weaknesses in Wong’s and AP’s own evidence in respect of the alleged Accident. R3 confirmed there were quite a number of persons gathered at the entrance of Clubhouse. With first aid being applied and debate over whether AP ought to be sent to a hospital and other persons milling around AP, it is not surprising if there was some confusion as to what was said or not said by various persons. Indeed, it was said R3 and Yu did not even have the chance to talk privately.

58.  Mr Sadhwani submits that R3’s assertions that AP was able to move his fingers without difficulty and that AP made light of his Injuries were incredible since the medical evidence show that AP’s fingers were fractured. However, the government hospital and expert orthopaedic medical reports reveal that when AP first attended the hospital accident and emergency department on Date the doctors found there were contusions of his left middle and ring fingers and closed fracture of the middle phalange of his left middle finger. AP was discharged with medication and he did not attend the hospital orthopaedic and traumatology department until two days later on 4^th September 2002 when a splint was applied. I do not regard the fracture to be serious or disabling.

59.  Wong said “they” (he could not remember who) went to 1/F Room to have a look. On balance I do not accept Connected Pipe was then hanging from Wall Block by Iron Chain. Although there is some discrepancy as to whether R3 went to 1/F Room with Yu or not, both R3 and Yu were clear and cogent in their evidence (which I accept) that (a) Pipes were laid out in the same fashion at 1/F Room as they last saw, (b) Short/Bent Pipes had not been connected and (c) there was no Pipe hanging from Wall Block.

Timing of the alleged Accident and Safety Course

60.  There is also dispute as to the timing of the alleged Accident. AP’s pleaded case is that it happened at 10:15am but he gave evidence that the alleged Accident happened at about 11:00am (Wong could not remember the time). R3 said it happened at about 9:15am.

(a) AP’s case

61.  Wong could not recall whether he worked at Site in the afternoon of Date. R3 assigned an assistant to help Wong, who continued to install Pipes at Site for a few more days. After several days, R3 told Wong to stop work. Wong agreed it could be said he was dismissed due to his inexperience in the plumbing field.

(b) Rs’ case

62.  R3 and Yu did not know where Wong had gone after the alleged Accident. Yu said to R3 Wong should continue and finish the work on the big Pipes. Since no miscellaneous worker was available, R3 said an intermediate worker should be assigned to work with Wong. Only three more days of work were required, but after three days R3 found Wong had not done any work. R3 told Yu on the fourth day Wong had to leave. R3 gave Wong his accrued wages and asked him to leave. R3 got other workers to finish the work.

(c) Analysis

63.  It is common ground that Safety Course was to be held on Date. Yu said he knew Wong and AP had been told to attend Safety Course at 10:30am. Wong said they were told to attend Safety Course as they walked past an office upon arrival at Site. He at first said in evidence he did not attend Safety Course but later said he attended Safety Course at 1:00-2:00pm for 2-3 hours. Still later, he said he could not remember whether he worked at Site that afternoon. AP claimed he did not know the scheduled time of Safety Course and he did not attend Safety Course. It is AP’s case that R3 told Wong and AP to start working first and then attend Safety Course later.

64.  The timing of Safety Course is relevant because if it was to be held at 10:30am and not at 1:00-2:00pm, Wong and AP should have been attending Safety Course and not working at 1/F Room at about 11:00am when the alleged Accident occurred. I prefer Yu’s evidence :

(a)	Yu was the project supervisor at Site. I accept his evidence that in the few months he worked at Site he had never heard of Safety Course organised by R1 being held in the afternoon.
(b)	R3 said (and I accept) there were also other workers at Site waiting to attend Safety Course before starting work for the day. It is unlikely that such workers would be kept idle until Safety Course was held in the afternoon.
(c)	It is unclear where Wong had gone to after the alleged Accident. He gave uncertain evidence as to whether he attended Safety Course. Indeed, Wong could not even remember whether he worked at Site in the afternoon of Date or not.

65.  I find on balance that it is more probable that Safety Course was scheduled for 10:30am on Date, so that Wong and AP should (as R3 explained) leave their work at about 10:00am to go and attend Safety Course. However, in the aftermath of AP sustaining Injuries in the early morning on Date, AP did not attend Safety Course.

66.  In my view, AP sustained Injuries at about 9:15am and not 11:00am as AP claimed. Since I do not accept Wong’s/AP’s evidence that they carried Pipes upstairs, connected Short/Bent Pipes or lifted Connected Pipe by Wall Block, Injuries were unlikely to be sustained late in the morning. I accept Yu’s evidence that after he finished giving instructions to Wong and AP, he left 1/F Room and it was only a short while later on his way back to 1/F Room that he was informed that AP was injured.

Form 2

67.  In coming to the aforesaid conclusions, I have also considered Mr Sadhwani’s submission that R1’s Safety Officer investigated the alleged Accident and R1 signed Form 2 on 23^rd September 2002 stating that the alleged Accident occurred in the course of work on Date at 10:15am. Form 2, which was prepared in English, further described the alleged Accident as “1/P’s left m/f and f/f were crushed against the wall by a dia.25mm cast iron pipe whilst installing the pipe at 1/F clubhouse”.

68.  There is no dispute that R1’s Safety Officer attended the scene after AP suffered Injuries. He gave first aid to AP and asked AP about how he was injured. According to AP’s case, Safety Officer took down AP’s particulars. Given this background and the fact that Rs have no eyewitness, I find the particulars of the alleged Accident in Form 2 to be hearsay records of AP’s assertions. I doubt whether there was any detailed investigation. R3 said (and I accept) that Safety Officer brushed aside his doubts about the alleged Accident by saying that since AP had already entered Site, his Injuries would be treated as having been sustained in the course of employment. This perspective of things must have coloured R1’s preparation of Form 2.

69.  Mr Wong referred to a judgment by Deputy Judge To on the weight to be given to information contained in Form 2. I believe Mr Wong was referring to the case of Shek Kam Ching v Po Kee Construction Engineering Ltd & ors [2002] 3 HKLRD 796 in which he acted for the plaintiff. In that case the plaintiff tried to establish liability on the part of the employer (1^st defendant) on the strength of a statement in Form 2 prepared by the principal contractor (2^nd defendant). The learned judge noted the representations in Form 2 were not made by the employer and said at p.800 as follows :

“In reality, in a construction site, there are various levels of subcontractors between the principal contractor and the injured employee. Some of these subcontractors may not even be known to the principal contractor. When an industrial accident occurred at a construction site, it is not uncommon for the principal contractor to misidentify a superior subcontractor as the direct employer of an injured employee. Thus little weight could be attached to this hearsay evidence contained in Form 2 and the inference that the first defendant was actively involved in the management of the personnel and affairs of the third defendant is a very tenuous one to be drawn. With that Mr Wong’s argument must fail.”

The issue in the present case is not about the capacity of the respondent but the time and circumstances of the alleged Accident. I am not persuaded that any weight can be given to the time of the accident stated in Form 2 (ie 10:15am), which is unverified hearsay that is inconsistent with the evidence of AP (11:00am) or R3 (9:15am). Even though it is in line with AP’s pleaded case, it is at best similar in nature to Form 2’s description of the alleged Accident, namely, a hearsay reflection of AP’s contentions on which I do not attach any substantial weight. I further note that R3, who did not read English, did not know about Form 2 lodged by R1.

AP’sdaily wages

70.  Whilst the matter of AP’s daily wages is not directly relevant to the question of liability, I propose to also assess the relevant evidence as it impacts on the overall credibility of the witnesses. I find on balance that R3 only employed AP on Wong’s recommendation to assist Wong and work with him as a team and not as an intermediate worker and that AP’s daily wages were HK$300.00/day, ie the usual wage rate for a miscellaneous worker :

(a)	The usual wage rate of HK$300.00/day is reflected by AP’s, Law’s and other miscellaneous workers’ daily wages as recorded in Logbook. Mr Sadhwani submits that Logbook prepared by R3 is self-serving. R3 gave evidence on how he made the entries in Logbook, namely, he would check the progress of works at Site and record 工數 (work periods) in Logbook in the late afternoon of each workday and he would further cross-check Logbook entries with the workers before paying their wages. The entries also correspond to the wage receipts signed by the workers. I see no basis to doubt the records in Logbook.
(b)	There is no commercial justification for R3 to employ an intermediate worker as a master’s assistant just to follow the master’s instructions and help pass tools and materials. R3 explained and Logbook shows that some intermediate workers were employed at Site to drill holes, fix leakages and engage in other work at HK$500.00-HK$650.00/day. When Clubhouse Plumbing Works neared completion by August/September 2002, only Law worked with a master on the flange Pipes. The other plumbing masters and intermediate workers worked independently at Site.
(c)	I find Wong and AP only had limited experience in plumbing work and I reject Wong’s claim that AP had satisfactory plumbing skills or knew how to handle/lift big-sized Pipes. AP admitted he handled smaller pipes (the largest of which were 8in-diameter pipes) in FPP projects. Although Pipes were factory-manufactured and standard-sized and Wong claimed he could read pipe installation drawings, Wong and AP were unfamiliar with their dimensions. AP said he could only give approximate dimensions of Pipes and screws as he had not measured them previously.
	I note Mr Sadhwani’s submission that Wong and AP should not be criticised because even Yu (a master plumber) cannot describe the exact number of screw holes on Pipes. But it strikes me as odd that Wong and AP could not even say the specific diameters of standard-sized Pipes (ie 6in or 10in) if they had any real experience in plumbing work. In any event, Wong admitted that a few days after AP sustained Injuries R3 asked him to leave because of his inexperience in plumbing work. Since AP acknowledged he was even less experienced than Wong, there is no reason for R3 to pay AP the usual wage rate of an intermediate worker. Besides, there is no suggestion that R3 would have been unable to find another casual miscellaneous worker at the usual rate of HK$300.00/day had it been necessary.
(d)	R3 intended that Wong and AP should work on the big Pipes and not on fine plumbing installations. This shows that R3 did not have full confidence in their plumbing expertise. It is unlikely that R3 would in the circumstances treat AP as a plumbing intermediate worker.
(e)	Mr Sadhwani argues that since AP received HK$500.00/day for his previous FPP work, he would not have agreed to work for R3 for HK$300.00/day. But AP admitted that due to the interruption of Mongkok Project, he had no work for the relevant days. Since he was only paid for the days he worked, it is not surprising that he was prepared to do plumbing work for lower pay on the days when he otherwise had no work at all.
(f)	After the alleged Accident, R3/Yu paired Wong with an intermediate worker to finish 1/F Room Works. Mr Sadhwani submits this is consistent with AP’s case that Wong’s original co-worker (ie AP) was an intermediate worker. I disagree. The evidence shows that R3/Yu paired Wong with an intermediate worker after Date because no miscellaneous worker was immediately available at Site after AP sustained Injuries.
(g)	Thereafter, AP signed various 支薪委托書 and received payments from R2 based on calculations of AP’s wages at HK$300.00/day. Mr Sadhwani suggests that they do not reflect AP’s acceptance of the stated daily wages, but there has been no protest or objection in respect of such payments.

Negotiations

(a) AP’s case

71.  To save himself the trouble of passing messages between R3 and AP, Wong arranged a meeting at a restaurant attended by R3, AP, Wong and Wong’s then co-worker to resolve AP’s compensation issue, but Wong did not participate in and did not know the contents of AP’s and R3’s discussions. Wong gave them their respective telephone numbers for direct liaison. AP said R3 offered to pay him HK$5,000.00 (Wong did not know who made such offer), but he did not give any reply. AP said would not have proposed that R3 pay him for not reporting the alleged Accident to the Labour Department. After all, he did not yet know (and R3 never asked) how serious were his Injuries and Safety Officer had already reported the alleged Accident to the Labour Department. AP later went to the Labour Department to lodge his compensation claim.

(b) Rs’ case

72.  At first AP suggested if R3 gave him two to three days’ wages, he would not report the matter. But Safety Officer already said the alleged Accident had to be reported. Wong then telephoned R3 to say the alleged Accident would not be reported to the Labour Department if HK$5,000.00 was paid. R3 believed that the claim was not genuine, but said it was up to his “boss” (R2), so that if R2 agreed to pay such sum, he too would agree to the proposal to avoid inconvenience. When R2 agreed to the demand, R3 informed Wong. R3’s witness statement stated Wong’s and AP’s request was made at a restaurant. R3 confirmed there was such meeting, but Wong later telephoned to chase for his reply because R3 had to ask R2 and could not give an immediate response at the meeting.

73.  Two days later, Wong telephoned R3 to increase the demand to HK$10,000.00. R3 asked R2 who agreed to the request to save trouble. Wong later increased the demand twice to HK$15,000.00 and HK$20,000.00 respectively. On each occasion R3 asked R2 who agreed to the request. R2 had never handled and did not want to deal with any accident claim. But Wong/AP became too greedy by again increasing the demand to HK$25,000.00. R2’s Mr Lo finally lost his temper and refused their request. R3 said these further negotiations took place via telephone. It was Wong/AP who wished to resolve the matter with him and not the other way around.

(c) Analysis

74.  I have been able to conclude that AP has not proved on balance the alleged Accident happened as claimed and/or AP suffered Injuries arising out of and in the course of his employment without relying on Negotiations. But as there is insufficient evidence of a genuine claim for without prejudice privilege to attach, I rule the evidence in relation to Negotiations admissible. But upon consideration, such evidence is insufficient to support AP’s case or detract from Rs’ contentions. 

75.  Mr Sadhwani submits there is no reason for R3/R2 to accede to AP’s progressively increasing demands if R3 truly suspected self-injury. He also suggests R3’s evidence is unreliable in that R3 did not mention in his witness statement AP’s final attempt to revise the proposed payment to HK$25,000.00. I prefer R3’s evidence. R3 said in his witness statement that he checked with R2/R1 on AP’s various proposals and it was ultimately AP’s greediness that prevented a resolution, which is not inconsistent with his evidence that R2’s Mr Lo finally lost his temper and refused to accede to a resolution when Wong/AP became too greedy by increasing the demand to HK$25,000.00.

76.  Mr Sadhwani then suggests there is no point (with R1 lodging Form 2) for AP to propose that he would refrain from reporting to the Labour Department in return for some payment. It is unclear when AP first approached the Labour Department, but I accept there must be some convenience to R3/R2 if AP refrained from pursuing his claim, though not considered to be genuine, via the Labour Department and for such claim to be put to an end. I find it likely that R3/R2 approached the matter on considerations of convenience. I note that R3 who liaised directly with Wong took no view on AP’s proposals and R2 who agreed to the proposed payments did not have and did not wish to have any direct contact with Wong/AP.

Conclusionon liability

77.  In the circumstances, AP failed to establish he suffered Injuries as a result of the alleged Accident in the course of and arising out of his employment with R3. AP’s claim is dismissed. However, for completeness, I will consider the quantum of compensation.

Quantum of compensation

78.  AP was 46 years old at the time of the alleged Accident. I have found that AP’s daily wages were HK$300.00. AP claimed he worked about 20 odd to 30 days a month and his average working days per month for the 12 months preceding the alleged Accident were 26 days (see also Form 2). Wong’s witness statement said he worked about 22 days a month, which he expanded to 22-26 days a month in his evidence. Mr Sadhwani suggests that Wong at best could only give evidence as his own workdays per month and since he was not an intermediate worker, he would not be best placed to give evidence on the average number of workdays that AP would have in a month.

79.  AP admitted that he previously worked for a number of employers. Wong also accepted there might be gaps between various jobs. There were also days when AP would have no work depending on the progress of works in construction or FPP projects. For example, when AP worked on Mongkok Project in August 2002, he was on casual leave pending completion/approval of the project design. AP also did not receive pay for statutory holidays or casual leave days, and he only worked on public holidays if the construction site was open and his employer asked him to do so. He also would not work over the Chinese New Year period. In light of such evidence, I find it unlikely that AP would be able to work on average 26 days a month. Balancing the aforesaid considerations, I consider AP should be able to work 24 days a month.

80.  It is common ground that AP was granted 201 days of sick leave. In the circumstances, the amount awarded under section 9 of Ordinance is (HK$300.00 x 24 days) x 72 x 5.5% = HK$28,512.00 and the amount awarded under section 10 is (HK$300.00 x 24 days) x 12 x 201/365 x 4/5 = HK$38,063.00. The total amount of compensation is HK$66,575.00. Since Rs advanced HK$41,526.00 to AP (subject to accountability to R2 for any fraudulent claim as provided in 支薪委託書), had AP been able to establish liability for compensation against Rs, he would have been entitled to HK$66,575.00 – HK$41,526.00 = HK$25,049.00.

Conclusion

81.  There is no reason why costs should not follow event. I grant a costs order nisi that costs of these proceedings (including all costs reserved, if any) be paid by AP to Rs with certificate for counsel and that there be legal aid taxation for AP’s own costs.