DCEC 870/2017
[2021] HKDC 939
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMMENSATION CASE NO. 870 OF 2017
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IN THE MATTER OF AN APPLICATION BETWEEN
CHEUNG SUN FAT JACKY
Applicant
and
LAM SHING YAN trading as
Respondent
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Before: Deputy District Judge Sara Tong in Court
Date of Hearing: 20 and 22 July 2021
Date of Judgment: 9 August 2021
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JUDGMENT
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A. INTRODUCTION
1. This is the trial of an application by the Applicant under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO ”) for compensation for a wrist injury which he suffered by reason of an alleged accident (the “Accident ”) which is said to have occurred at around 11:30 a.m. on 10 June 2015 when the Applicant was working for the Respondent at Room A and Platform on 20/F, Tung Shing Building, 24 Ship Street, Wan Chai (the “Ship Street Premises ”).
2. The following matters are not in dispute:-
(1) The Applicant was born on 29 November 1974 and was 40 years old at the time of the Accident.
(2) Since around February 2015, the Applicant was employed by the Respondent (being the sole proprietor of Wai Leung Decoration Engineering Company (“Wai Leung Decoration ”)) as a carpenter, including to do renovation work at the Ship Street Premises;
(3) For every working day, the Applicant was required to work from around 9 a.m. to 6 p.m. and was paid a daily wage of HK$1,200;
(4) The Applicant and his colleague, Mr. Tsang Kin Yu, Leo (“Mr. Tsang ”), worked at the Ship Street Premises on 9 June 2015 (i.e. the day before the Accident). After work on 9 June 2015, the Applicant and Mr. Tsang travelled together to Shenzhen, China for karaoke entertainment overnight;
(5) In the morning of 10 June 2015, Mr. Tsang (on the Respondent’s instructions) stayed in Shenzhen to purchase lighting for the Respondent, and the Applicant travelled back to Hong Kong alone, crossing the Lo Wu security control point at 9:55 a.m.;
(6) At around 12:12 pm on 10 June 2015, the Applicant attended the Accident and Emergency Department of Pamela Youde Nethersole Eastern Hospital with a wrist injury. He was found to have (i) tenderness and swelling over his right hand; (ii) abrasion over his right index finger; and (iii) a fracture of his 5th metacarpal bone (the “Injury ”);
(7) From the date of the Accident up to 7 January 2016, the Respondent had paid a total of HK$71,525 by way of sick leave pay and medical expenses to the Respondent (the “Advance Payment ”).
3. The Applicant’s case is that he was instructed by the Respondent to work at the Ship Street Premises on the day of the Accident. At the time of the Accident, he was installing corner clamps (角碼) to a wall-mounted cabinet (the “Cabinet ”) as support, and had to use a wooden A-shaped ladder with 5 rungs (the “Ladder ”). The nylon string connecting the two sides of the Ladder snapped which caused him to fall from the Ladder and resulted in the Injury. The Applicant was alone at the Ship Street Premises at the time when the Accident happened.
4. The Respondent’s position is that the Applicant did not work at the Ship Street Premises on 10 June 2015 and his Injury was not related to his employment with the Respondent. The Respondent denied having instructed the Applicant to work on that day and alleged that he specifically informed the Applicant on 9 June 2015 that there was no work for him on 10 June 2015.
5. In the Respondent’s Answer filed on 2 May 2018, he also included a counterclaim for a full refund of all sums that he paid to the Applicant in the event that the Applicant was found not to have proved his claims herein. However, Ms. Julia Lau (Counsel for the Respondent) confirmed to this Court that the Respondent does not pursue this counterclaim. In any event, no counterclaims are allowed in an employees’ compensation action: Wong Kai Yung v Chief Construction Co Ltd & Anor [2017] 3 HKLRD 142, at paragraphs 27-42.
6. Ms. Lau also informed this Court during opening submissions that if the Court finds against the Respondent on the question of liability, the Respondent will accept the quantum of compensation claimed by the Applicant.
B. ISSUES FOR DETERMINATION
7. Section 5(1) of the ECO provides that:
“(1) Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”
8. In the present case, on the question of liability, the issue to be determined by this Court is whether the Applicant has proved, on a balance of probabilities, that he was working at the Ship Street Premises on 10 June 2015 and sustained the Injury whilst working at the premises as alleged.
9. Ms. Lau contended in closing submissions that the proper question should be whether the Applicant was instructed by the Respondent to work at the Shop Street Premises.
10. In my view, both questions are relevant and should be considered by this Court. Whereas the important question for the purpose of section 5(1) ECO is whether the Accident arose out of and in the course of the Applicant’s employment with the Respondent, section 5(4)(b) of the ECO specifically provides as follows:
“(b) an accident to an employee shall be deemed to arise out of and in the course of his employment, notwithstanding that the employee was at the time when the accident happened acting 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, if such act was done by the employee for the purposes of an in connection with his employer’s trade or business ;….”
(Emphasis added)
11. Hence, if the Applicant’s version of events is found to be true i.e. he was installing corner clamps on the Cabinet at the Ship Street Premises, and the Accident happened whilst he was doing so, the Accident would, applying section 5(4)(b) of the ECO, be deemed to have arisen out of and in the course of his employment even if the Applicant acted without instructions from the Respondent.
12. However, as Mr. Peter Wong (Counsel for the Applicant) fairly accepted, given the dispute between the parties as to whether the Applicant was specifically instructed by the Respondent not to work on 10 June 2015 (as alleged by the Respondent), a finding by this Court on such issue will go to the overall assessment of the credibility of the parties’ respective versions of events.
C. LEGAL PRINCIPLES
13. The determination by this Court of the disputes of facts between the parties in this case turns largely on the credibility of the evidence given by the factual witnesses.
14. In assessing the credibility of a witness, DHCJ Au (as he then was) said in Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513 at 524:-
“53. In assessing the credibility of a party’s case on a particular issue, I accept the submission of [counsel] that the Court should take into considerations the following:-
(1) Whether the party’s case is inherently plausible or implausible;
(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;
(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility; and
(4) The demeanor of the witnesses.”
15. The relevant principles in assessing the creditability of witnesses were also summarized by B. Chu J in Ip Fung Kuen v. Sam Kee Frozen Meat Company Limited & Ors (unreported, HCA 1897/2009, 6 April 2016) at paragraphs 65-80:-
“65. The relevant principles in assessing a witness’s evidence have been set out by Poon J (as he then was) in Big Island Construction (HK) Ltd v Wu Yi Development Co. Ltd (unreported) HA 1957/2005, 28 July 2011; and DHCJ Eugene Fung SC in Hui Cheung Fai v Daiwa Development Ltd (unreported) HCA 1734/2009, 8 April 2014.
66. In Big Island Construction (HK) Ltd, the then Poon J had explained as follows:
“24. In assessing credibility, the court takes into account, among other things, the inherent probabilities or improbabilities of one’s testimony, the contemporaneous document or any evidence, which is undisputed or indisputable, tending to support or contradict one account or the other and the overall impression of the characters and motivations of the witnesses: see In re B (Children), supra, per Baroness Hale at para 31 at p.24, applied by this court in Standard Chartered Bank v Li Wai Ping & others, HCA 10587/2000 & HCA 3575/2003, 17 February 2011, unreported, at para 19. Where there exists a wealth of contemporaneous documents, credibility is to be tested by reference most particularly to them: see Esquire (Electronics) Ltd v Hong Kong & Shanghai Banking Corp. Ltd [2007] 3 HKLRD 439, per Stock JA (as he then was) at para.158 at p.494”
67. In Hui Cheung Fai, DHCJ Eugene Fung SC has said:
“76. In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.
77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)….
78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).
79. In determining a witness credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and this or her witness statement.
80. I have cautioned myself against the dangers of too readily drawing conclusion about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at § 36-37 (Bokhary PJ)), or form the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at § 135 (Stock JA)).”
16. The evidence of the factual witnesses in the present case will be assessed with the aforesaid principles in mind.
D. ASSESSMENT OF EVIDENCE
17. The Applicant and the Respondent have put forward different versions of events, particularly as to what happened on 9-10 June 2015.
D1. The Applicant’s Evidence
18. In support of the Applicant’s case, only the Applicant himself gave evidence. The Applicant’s evidence on the pertinent events can be summarised as follows:
(1) The Applicant had been working as a carpenter for interior renovation businesses for different employers for over 10 years. Since February 2015, he had started working for the Respondent.
(2) The Applicant was instructed by the Respondent to carry out renovation work at the Ship Street Premises, and was involved in the installation of the Cabinet.
(3) On 27 May 2015, the Applicant sent to the Respondent by Whatsapp some photos of the Cabinet which was at the time already installed on the wall, but without the door covering it;
(4) On 9 June 2015, the Applicant and Mr. Tsang were both working at the Ship Street Premises. The Applicant admits that he went to Shenzhen for karaoke entertainment with Mr. Tsang (with whom he worked) after work on the evening of 9 June 2015, but denies having told Mr. Tsang that he did not have to work on the next day (as alleged by Mr. Tsang). The Applicant also denies that the Respondent had told him on 9 June 2015 that he need not work the next day as there was nothing for him to do at the Ship Street Premises (as alleged by the Respondent).
(5) The Applicant and Mr. Tsang were at the karaoke bar in Shenzhen until the early hours of the morning of 10 June 2015. The Applicant returned to Hong Kong on the morning of 10 June 2015 from Shenzhen, crossing the Lo Wu security control point at 9:55am (according to his travel records). He picked up his car from Sheung Shui and drove to the Ship Street Premises to attend work, arriving at around 10:40 a.m. He illegally parked his car at the end of Ship Street as he was late to work.
(6) The Applicant called the Respondent twice on 10 June 2015 after he arrived at the Ship Street Premises. The first call was to ask the Respondent about what brand of “油壓臂” the owner of the premises (a Mr. Au-Yeung) wished to use; and the second call was around 11:30 a.m. just after the Accident to inform the Respondent that he was injured. He also called Mr. Tsang at around 11:30 a.m. to inform him of the Accident.
(7) At the time of the Accident on 10 June 2015, the Applicant was installing corner clamps onto the Cabinet to provide it with further support, which required him to use the Ladder which had 5 rungs. When he was standing with one foot on the 4th rung and one foot on the 5th rung, the nylon string connecting two sides of the Ladder suddenly broke, which caused the Ladder to fall apart, as a result of which he fell onto the ground (landing on his palms) and sustained the Injury.
(8) After the Accident, he took a taxi to Pamela Youde Nethersole Eastern Hospital and attended its Accident and Emergency Department to obtain treatment. He called the Respondent and sent photos by Whatsapp to the Respondent when he was at the hospital.
(9) At the request of the Respondent, for some days after the Accident, he continued to attend the Ship Street Premises and South Horizons (海怡) to “交帶手尾”, and only attended for a short period. The Respondent did not pay him wages for those days and they agreed that those should not be counted as work days.
(10) Around 2 weeks after the Accident, the Respondent told him that he did not take out any insurance policy for the Applicant, and informed him that when reporting the Accident to the Labour Department, he would state that the Applicant fell from an aluminum ladder rather than a wooden ladder.
D2. The Respondent’s Evidence
19. The Respondent himself gave evidence at the trial. Mr. Tsang (who was still, at the time of the trial, under the employment of the Respondent) also attended trial to give evidence in support of the Respondent’s case.
20. The following is a summary of the evidence given by the Respondent in respect of the pertinent events:
(1) The owner of the Ship Street Premises (Mr. Au-Yeung) ordered the Cabinet and instructed Wai Leung Decoration to install it in the open kitchen at the premises.
(2) It was the Respondent and Mr. Tsang who were responsible for installing the Cabinet, and the Applicant was not involved. The Respondent denies that the Cabinet required any support by using corner clamps, and drew attention to photographs showing that the Cabinet, in its finished state, did not require any corner clamps to support it. Instead, the Cabinet was mounted on the wall using 2 expansion bolts and 4 long metal bolts.
(3) The Respondent stated that on 9 June 2015, both the Applicant and Mr. Tsang were working at the Ship Street Premises. When they were about to finish work, the Respondent called the Applicant to tell him that he did not need to work the next day, because there was nothing the Applicant could do at the Ship Street Premises that day. At around the same time, the Respondent also called Mr. Tsang and instructed him to purchase lighting in Shenzhen the next day, and return to Hong Kong in the afternoon to help transfer “地板的底板” to the Ship Street Premises.
(4) The Respondent further recounted that, on 10 June 2015 at about 10:38 a.m., while he was still sleeping, he received a call from the Applicant saying that he happened to be near the Ship Street Premises and wanted to get a “油壓臂” (“Hydraulic Lift ”) from a nearby shop in Wanchai and bring it to the premises to see if it would fit the door of the Cabinet. The Respondent replied “okay” and went back to sleep.
(5) Then, between 10:38 a.m. and 11:35 a.m., the Respondent received three consecutive calls from the Applicant respectively reporting that: (i) he arrived at the building of the Ship Street Premises; (ii) he was about to try installing the Hydraulic Lift on the Cabinet; (iii) he needed to use a ladder before he could perform the trial installation of the Hydraulic Lift. At 11:35 a.m., he received the fifth call from the Applicant informing him of the Accident.
(6) The Respondent attended the Ship Street Premises later on 10 June 2015 after the Applicant informed him of the Accident, but could not see any Hydraulic Lift left there. He therefore inquired with the Applicant, who told him that he already returned the Hydraulic Lift to the shop. The Respondent also saw the Ladder laid on the ground at the premises, but did not inspect it or take photos of it.
(7) The Respondent all along believed in the truthfulness of the Accident as recounted to him by the Applicant, and thus started making sick leave payment to the Applicant.
(8) After several months, in around September or October 2015, he started suspecting whether the Accident actually took place and whether the Applicant was telling the truth. As a result, he stopped making sick leave payment to the Applicant since around January 2016.
(9) The Respondent stated in his witness statement the reasons why he began suspecting whether the Applicant was telling the truth about the Accident, including, that (i) the Applicant could have performed the trial installation of the Hydraulic Lift without using a ladder; (ii) the Applicant could not have fallen from the 5th rung of the Ladder, as the 5th rung was only 4 ft 2 inches from the ceiling; (iii) there was no reason why the Applicant needed to perform the trial installation of the Hydraulic Lift on 10 June 2015, since there was no urgency to do so and he specifically informed the Applicant he did not need to work on that day; and (iv) the Applicant was an experienced renovation worker and it was unusual for him to have called the Respondent so many times on the morning of on 10 June 2015 to report to him of all the steps he took before the Accident. However, under cross-examination, when questioned as to what suddenly triggered his suspicions in September or October 2015 as to whether the Applicant was telling the truth, the Respondent did not provide a meaningful response, and merely gave evidence to the effect that his staff told him he was paying the Applicant too much in sick leave payment, and after lengthy discussions with his staff, he felt that the Applicant was lying about the Accident.
21. As regards Mr. Tsang, his evidence is in summary that:
(1) He and the Applicant were working at the Ship Street Premises on 9 June 2015 until around 6 p.m. when the Respondent called him instructing him to go to Shenzhen to purchase lighting the next day before returning to Hong Kong.
(2) On that same day (9 June 2015) after work, the Applicant said to him that he did not have to work on 10 June 2015 and would be going to Shenzhen that evening and could give him a ride in his car to Sheung Shui.
(3) Mr. Tsang, the Applicant and the Applicant’s girlfriend then travelled together to a karaoke bar in Shenzhen for entertainment. When Mr. Tsang left the karaoke bar in the early hours of 10 June 2015 (around 3:30 am), the Applicant told Mr. Tsang that he would contact him and return to Hong Kong with him the next day (referring to 10 June 2015).
(4) At around 9 a.m. on 10 June 2015, the Applicant called him and told him that he was already returning to Hong Kong as he need to “開工” and so Mr. Tsang had to return to Hong Kong by himself. At around 11 a.m. (although he could not be sure of the exact time), the Applicant called him to tell him that he was injured at the Ship Street Premises, and Mr. Tsang told the Applicant he should inform the Respondent instead. When Mr. Wong suggested to Mr. Tsang in cross-examination that he was informed by the Applicant of the Accident at 11:30 a.m. on 10 June 2015, Mr. Tsang did not deny this and stated he could not be sure.
D3. Evaluation of the parties’ evidence
Whether the Respondent instructed the Applicant to work at the Ship Street Premises on 10 June 2015
22. First
(1) A WhatsApp message from the Applicant to the Respondent at 00:52am on 10 June 2015 stating “明天，船街見，阿勇明天會到船街裸工具到小西灣執手尾，先不要做其他事” (Screenshot 67 produced by the Respondent) (the “Whatsapp Message ”); and
(2) The Respondent’s own handwritten logbook in which he recorded on a daily basis which of his staff worked at which location (the “Logbook ”), and in which it was stated that (i) on 9 June 2015, the Applicant and Mr. Tsang worked at the Ship Street Premises and “阿勇” worked at “青衣”; and (ii) on 10 June 2015, the Applicant and Mr. Tsang worked at the Ship Street Premises and “阿勇” worked at “小西灣”. The Respondent explained that he would make the records in the Logbook a few days after each work day, for the purpose of payment of wages to his employees.
23. Mr. Wong submitted that since the WhatsApp Message was sent on 9 June 2015, “明天” must mean 10 June 2015, and hence, the Respondent clearly instructed the Applicant to work at the Ship Street Premises on 10 June 2015, which is also consistent with the Logbook.
24. On the other hand, during examination-in-chief, the Respondent gave evidence for the very first time that because the message was sent in the small hours of 9 June 2015, when he said “明天見” he actually meant 9 June 2015 and not 10 June 2015. In support of the Respondent’s account, Ms. Lau relied on the fact that the Applicant was calling the Respondent between 0:48-0:50 a.m., two minutes before the WhatsApp Message was sent. Ms. Lau submitted that it was obvious that the Applicant and the Respondent were discussing work arrangements for 9 June 2015 rather than 10 June 2015. In my view, the aforesaid phone calls do not assist the Respondent because there is no evidence on what they were about.
25. To challenge the Respondent’s account, Mr. Wong referred the Court to the Logbook, which showed that “阿勇” worked at “小西灣” on 10 June 2015 but not on 9 June 2015. In that light, it was submitted that since the WhatsApp Message also stated that “阿勇” worked at “小西灣” tomorrow, “tomorrow” (明天) should be referring to 10 June 2015.
26. When being cross-examined on this point, the Respondent stated for the first time that in the morning of 9 June 2015, another worker “阿明” who was supposed to work at “青衣” informed the Respondent by Whatsapp message that he was unavailable, and hence the Respondent asked “阿勇” to work in “青衣” instead of “小西灣” that day. However, this purported explanation was never mentioned in the Respondent’s witness statement, or in his supplemental witness statement (leave for which was given to be adduced on the first day of trial). The alleged Whatsapp message from “阿明” was also never produced as evidence in this action. I do not accept this belated explanation on the part of the Respondent to be credible and I reject it. In any event, in Ms. Lau’s closing submissions, she did not seek to rely upon this explanation from the Respondent.
27. Instead, Ms. Lau took issue with the approach of reading the WhatsApp Message together with the Logbook for the reason that the Logbook was a record made subsequently by the Respondent for calculating wages. I do not see how the fact that the entries of the Logbook were recorded by the Respondent subsequently should prevent the Court from considering it as against other contemporaneous evidence which would shed light on whether the Applicant was working at the Ship Street Premises on 10 June 2015.
28. Ms. Lau also invited this court to ignore the part of the WhatsApp Message concerning “阿勇” for the reason that the message was between the Applicant and the Respondent and should not be taken as evidence relating to other workers. I cannot accept such submission. The WhatsApp Message is relevant and probative in that it reflected the Respondent’s own arrangement as to his employees’ work duties and work location at the material time. Without any suggestions from the Respondent that the WhatsApp Message was inaccurate, there is no reason for this Court to disregard the Whatsapp Message even though it mentioned a third party.
29. For the above reasons, I agree with Mr. Wong that the Whatsapp Message was an instruction from the Respondent to the Applicant that he should work at the Ship Street Premises on 10 June 2015.
30. Second
31. Mr. Tsang also confirmed in his evidence that (i) the Respondent did call him on 9 June 2015 when he was about to finish work and instructed him to buy lighting in Shenzhen the next day; and (ii) the Applicant also said to him on 9 June 2015 that he did not have to work the next day, and hence could give him a lift to Sheung Shui in his car that evening.
32. However, the aforesaid evidence of the Respondent and Mr. Tsang is flatly contradicted the telephone record of the Respondent (the “Telephone Record ”). Both calls, which were allegedly made by the Respondent to Mr. Tsang’s phone (no. 61867687) and the Applicant’s phone (no. 98305260) in the evening of 9 June 2015 around 6pm when they were about to finish work, were not shown on the Telephone Record. In particular, according to the Telephone Record, the last call made by the Respondent to the Applicant on 9 June 2015 was at 12:11 p.m.. Although there were incoming calls to the Respondent’s phone in the late afternoon of 9 June 2015 shown on the Telephone Record, it is not the Respondent’s evidence that he received calls from Applicant/Mr. Tsang, and in any event, the Telephone Record does not show the identity of incoming callers. When confronted in cross-examination, the Respondent had no answer to this.
33. I therefore find that the Respondent did not inform the Applicant when he was about to finish work on 9 June 2015 that he did not have the work the next day.
34. Third
35. I do not find that the Respondent’s evidence that the installation of the Cabinet had been completed by 9 June 2015 to be credible. No photographs of the state of the Cabinet on 9 June 2015 were produced. However, according to photographs taken on 27 May 2015, the Cabinet door was not yet installed, the tiles beneath the Cabinet had not yet been mounted, and on the Respondent’s own evidence, by 10 June 2010, the Hydraulic Lift was also not yet installed.
36. Fourth
37. For the above reasons, I am of the view that the evidence of the Respondent and Mr. Tsang that the Applicant was specifically instructed by the Respondent that he did not have to work on 10 June 2015 cannot be reconciled with the contemporaneous documentary evidence and is inherently improbable, and I reject such evidence.
38. Taking into account the Applicant’s testimony and the available contemporaneous documentary evidence, I find that the Applicant has proved on the balance of probabilities that he was instructed by the Respondent to work at the Ship Street Premises on the day of the Accident.
Whether the Applicant was working at the Ship Street Premises at the time of the Accident and installing corner clamps on the Cabinet
39. The Applicant’s evidence is that he was installing corner clamps to the Cabinet for its support at the time of the Accident, whereas the Respondent denies this and contends that no corner clamps were necessary for supporting the Cabinet, and that the Applicant telephoned him on 10 June 2015 at around 10:38 a.m. to tell him that he would be obtaining a Hydraulic Lift from a nearby shop in Wanchai and bring it to the premises to see if it would fit the door of the Cabinet.
40. First
(1) It is inherently improbable that the Respondent (as the employer) would perform the installation work himself (with the assistance of Mr. Tsang only, who was a “雜工”), and leave out the Applicant (who was the carpenter).
(2) According to the Logbook, both the Applicant and Mr. Tsang were working at the Ship Street Premises on 27 May 2015 when the Applicant sent photos to the Respondent showing the installation of the Cabinet. If the Applicant was not involved in the installation work of the Cabinet, it is hard to understand why he would have sent such photos to the Respondent.
(3) Further, the Respondent and Mr. Tsang never mentioned in their witness statements that the Applicant was not involved in the installation of the Cabinet. To the contrary, the Respondent’s evidence is that the Applicant allegedly called him on 10 June 2015 that he would go back to the Ship Street Premises to try installing the Hydraulic Lift on the Cabinet to see if it would fit the Cabinet, and the Respondent only responded by asking why there was such urgency to do so (“為何要這樣急”), without stating that it was not within the Applicant’s duties to do so.
41. In the premises, I have no hesitation in finding that the Applicant’s duties included the installation of the Cabinet.
42. Second
43. I do not consider that the above factors highlighted by Ms. Lau necessarily undermine the inherent probabilities of the Applicant’s version of events. During cross-examination, the Applicant explained that installing the corner clamp to support the Cabinet was his own decision, rather than a specific instruction from the Respondent. He thought it necessary because he observed that there was an electric box with cables near the top right corner of the Cabinet and no bolts could be used there (which accords with the photographs). It is not in dispute that corner clamps were not installed by the Applicant on 10 June 2015 before the Accident happened. The fact that no corner clamps were installed subsequently and it was decided that the kitchen wall underneath the Cabinet (which was part of the design) was sufficient to provide support to the Cabinet (according to the Respondent’s evidence) does not, in my view, undermine to any significant extent the Applicant’s version of events that he did try to install the corner clamp on 10 June 2015 before the accident occurred. There may have been different views taken at different times as to how support for the Cabinet could be provided.
44. As to the need for seeking the owner’s approval before any corner clamp could be installed, I note that this was only the assertion of Mr. Tsang given during his oral evidence at trial, without support from the Respondent, who was the employer and the point of contact with the owner. This allegation was also never mentioned in the witness statements of the Respondent and Mr. Tsang and not put to the Applicant in cross-examination. I therefore do not consider that such belated assertion by Mr. Tsang should be accorded any significant weight.
45. Third
46. Fourth
47. For the above reasons, I do not consider that the Applicant’s evidence that he was working at the Ship Street Premises and installing corner clamps on the Cabinet when the Accident occurred can be impugned in any material respect.
Other miscellaneous issues raised by the Respondent to impugn the Applicant’s evidence
48. For completeness, I will address below some other miscellaneous issues raised by Ms. Lau to impugn the Applicant’s evidence.
49. First
50. Second
51. Third
52. Fourth
53. Fifth
54. Sixth
(1) The second criticism is not valid given my findings above that the Applicant had been instructed by the Respondent to work at the Ship Street Premises on 10 June 2015 and that he never told Mr. Tsang that he did not have to work on that day.
(2) As for the first criticism, while it may appear that the Applicant’s original plan to travel back to Hong Kong with Mr. Tsang after he finished purchasing lighting in Shenzhen does not sit well with the fact that he needed to work on 10 June 2015, this perceived inconsistency was not put to the Applicant during cross-examination and hence the Applicant did not have the opportunity to explain how his original plan would work. I would not therefore consider the Applicant’s change of plan as being necessarily inconsistent with his evidence that he had to work on 10 June 2015.
Inherent improbabilities of the Respondent’s version of events
55. There are also a number of inherent improbabilities as to the Respondent’s version of events, which, in my view, casts serious doubt on the credibility of his evidence.
56. First
(1) The Respondent’s evidence is that he was sleeping when the Applicant made the first telephone call to him at 10:38 a.m. on 10 June 2015, and he was woken up by such phone call. However, a closer look at the Telephone Record would reveal that before receiving the Applicant’s call at 10:38 a.m., the Respondent had made 7 outgoing calls since 8:05 a.m. Particularly, 5 of them were made between 10:24 a.m. and 10:31 a.m. Therefore, it could not have been the case that the Respondent was indeed sleeping at the time he received the call from the Respondent at around 10:38 am.
(2) The Telephone Record also does not show the identity of incoming callers. Hence, there is no objective evidence to show that the 6 calls received on the Respondent’s mobile phone from 10:38 am to 12:34 pm on 10 June 2015 were all from the Applicant. The Applicant’s evidence is that he only called the Respondent twice during this period.
(3) In any event, a closer reading of the Telephone Record would reveal that it was not at all unusual for the Applicant and the Respondent to have frequent communications by phone during working hours. For example: (i) the Applicant made 25 calls to the Respondent between 10 a.m. – 6 p.m. on 26 May 2015; and (ii) the Applicant made 4 calls to the Respondent between 10 a.m. – 1 p.m. on 9 June 2015.
57. Second th rung of the ladder, which was only 4 ft 2 inches from the ceiling. However, the Applicant explained that he was installing a corner clamp on the Cabinet, and in doing so, he was standing with one foot on the 4th rung and one foot on the 5th rung with his upper body bent over to reach the back of the Cabinet. This explanation from the Applicant is consistent with the photographs produced by the Respondent as regards the position of the Cabinet and the height of the Ladder.
58. Third
59. In fact, the Respondent himself returned to the Ship Street Premises on 10 June 2015 shortly after the Applicant informed him of the Accident, apparently to check if the Hydraulic Lift was still there (clearly with a suspicious mind), but somehow did not inspect the Ladder or took any photos.
60. According to the Respondent, he only came to suspect that the Applicant was not telling the truth about the Accident around September/October 2015. When cross-examined as to what suddenly triggered his suspicion some three/four months after the Accident, the Respondent was somewhat evasive and could not provide any credible explanation (see paragraph 20(9) above).
61. Fourth
62. Taking into account the inherent probabilities and improbabilities of the parties’ testimony, and the contemporaneous documents, I do not consider that the Respondent’s version of events to be credible and I reject his evidence. I find that the Applicant did not tell the Respondent on the morning of 10 June 2015 that he would be performing a trial installation of the Hydraulic Lift on the Cabinet as alleged by the Respondent.
63. I also reject the Respondent’s evidence that he began having suspicions as to the truthfulness of the Accident in September/October 2015, which, for the reasons explained above, simply does not accord with his own evidence on the obvious absurdities of the Applicant’s version of events.
64. On the other hand, I find the Applicant’s evidence that he was working at the Ship Street Premises on the morning of 10 June 2015 installing corner clamps onto the Cabinet to be inherently more probable and I accept his evidence.
65. For the sake of completeness, I should mention that Mr. Wong invited the Court to take into account the fact that the Respondent had not taken out any employee insurance policy for the Applicant, which gave the Respondent additional incentive to deny the Accident and avoid having to pay compensation. Mr. Wong submitted that it was a reasonable inference that the Respondent felt the financial strain in January 2016 and began to think of ways to avoid payments to the Applicant. Taking into account the Respondent’s failure to credibly explain his delayed suspicion of the Applicant’s version of events, the inference sought to be drawn by Mr. Wong is plausible, even though I do not have to go so far as to rest my decision on liability on the basis of such inference.
E. CONCLUSION ON LIABILITY
66. For the above reasons, I find that the Applicant has proved, on the balance of probabilities, that:-
(1) He was instructed by the Respondent to work at the Ship Street Premises on 10 June 2015;
(2) The Accident did happen on 10 June 2015 when he was installing corner clamps on the Cabinet inside the Ship Street Premises;
(3) The Accident caused him the Injury when he fell from the Ladder.
67. I therefore find that the Injury arose in the course of and out of the Applicant’s employment with the Respondent, and the Applicant is entitled to compensation from the Respondent under section 5 of the ECO.
F. QUANTUM
68. Save as to the question on interest, the parties have no dispute as to the quantum of compensation which the Respondent should be liable to pay. The agreed calculations are set out below.
F1. Section 9 Compensation
69. The Applicant was 40 years old at the time of the Accident and his monthly salary was HK$16,800.
70. It is agreed as between the parties that the loss of earning capacity is 2% and the total compensation under this head is:
HK$16,800 x 72 x 2% = HK$24,192
F2. Section 10 compensation
71. The Applicant was given sick leave from 10 June 2015 to 1 March 2016 (266 days) and from 21 April 2016 to 9 March 2017 (323 days) respectively. The total number of days for sick leave period is 589 days. As agreed by the parties, the compensation under this head is:
HK$16,800 x 4/5 x 589/30 = HK$263,872
F3. Section 10A Compensation
72. The medical expenses incurred by the Applicant were HK$3,330, being payments made to United Christian Hospital (“UCH ”) and Pamela Youde Nethersole Eastern Hospital (“PYNEH ”).
73. Under section 10A(3) and Third Schedule of the ECO (as effective at the time of the Accident), the medical expenses payable by the employer are the amount incurred or the amount at the rate of HK$200 for each day he received treatment, whichever is less.
74. The Statement of Accounts supplied by the Hospital Authority are as follows: -
(1) UCH on 16 August 2015 at HK$230.00
(2) UCH on 16 August 2015 at HK$100.00
(3) PYNEH from 10 June 2015 to 9 February 2017 (HK$60 x 27 + HK$100 x 9 + HK$50 x 2+ HK$200 x 1 + HK$20 x 1 + HK$ 10 x1 + HK$40 x 1) = HK$2,890
75. For item (1) above, the medical expenses incurred exceeded HK$200 per day and the rate up to HK$200 is applied. For items (2) and (3), the medical expenses incurred did not exceed HK$200 per day.
76. The total amount of medical expenses to be payable by the Respondent under this head is agreed by the parties to be HK$3,190 .
77. It is not disputed that the Respondent paid the Applicant compensation by way of Advance Payment up to 7 January 2016 in the sum of HK$71,525, which shall be taken into account.
78. In summary, the compensation payable by the Respondent to the Applicant shall be as follows:
Section 9: HK$24,192.00
Section 10: HK$263,872.00
Section 10A: HK$3,190.00
Sub-total: HK$291,254.00
Less the Advance Payment: HK$71,525.00
Total: HK$219,729.00
F4. Interest
79. Ms. Lau submitted that the Court should not award interest to the Applicant in respect of the judgment sum for the period between 15 August 2018 and 16 April 2021 by reason that the Applicant had delayed in taking steps to comply with the Order of His Honour Judge Harold Leong dated 16 May 2018 (the “Order ”), pursuant to which the parties were ordered to write jointly to the Court by way of a Joint Application within 91 days from the date of the Order i.e. by 15 August 2018 to set the action down for trial. The draft Joint Application was only sent by the Applicant’s solicitors to the Respondent’s solicitors on 14 April 2021 and countersigned by the Respondent’s solicitors on 16 April 2021.
80. In my view, it is unfair to put the blame of non-compliance with the Order solely on the Applicant. The obligation to make the Joint Application falls upon both parties and the Respondent had equally failed to take any steps before 16 April 2021 to bring the Joint Application.
81. Accordingly, I do not consider it appropriate to make any deduction on interest on the judgment sum of HK$219,729.00, which shall be at half judgment rate per annum from the date of the Accident (i.e. 10 June 2015) to the date of this judgment, and thereafter at judgment rate until full payment.
G. DISPOSITION
82. For reasons set out above, I find that the Respondent is liable to pay HK$219,729.00 to the Applicant pursuant to sections 9, 10, and 10A of the ECO. The Applicant is also entitled to interest on the sum of HK$$219,729.00 at half judgment rate from 10 June 2015 to the date of this judgment, and thereafter at judgment rate until full payment.
83. There is no reason why costs should not follow the event. I make a costs order nisi that:-
(1) The Respondent do pay the Applicant’s costs of this action, including all costs reserved if any, to be taxed if not agreed with certificate for counsel;
(2) The Applicant’s own costs be taxed in accordance with Legal Aid regulations.
84. The costs order nisi shall become absolute in the absence of any application to vary the same within 14 days of the handing down of this Judgment.
85. It remains for me to thank counsel for their assistance.
( Sara Tong )
Deputy District Judge
Mr. Peter Wong, instructed by K.Y. Woo & Co. (assigned by Director of Legal Aid), for the Applicant
Ms. Julia Lau, instructed by Ernest Li & Co. (assigned by Director of Legal Aid), for the Respondent