LAM CHOR v. MAK FU TAK AND OTHERS

DCEC428/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 428 OF 2004

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JUDGMENT

1. This is an application by the Applicant for Employees’ Compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”) against the 1^st Respondent as his employer and the 2^nd Respondent as a sub-contractor within the meaning of the Ordinance and the 3^rd Respondent as the principal contractor of the 2^nd Respondent within the meaning of the Ordinance.  Both the Applicant and the 3^rd Respondent appeal against the assessment under the Certificate of Assessmentissued by the Employee’s Compensation (Ordinary Assessment) Board.

2. It was the Applicant’s case that on or about 18 May 2002, at about 2:30 p.m., the Applicant was in the course of his employment with the 1^st Respondent and was instructed to install the doors of the hotel rooms and to carry out carpentry work in Regal Kowloon Hotel (“the hotel”) situated at No. 71 Mody Road, Tsimshatsui, Kowloon, Hong Kong where renovation work was being carried out.

3. At the trial it came to be known that the 2^nd Respondent was no longer registered in the Company’s Registry and the Applicant asked to withdraw his claim against the 2^nd Respondent.  The Applicant’s case against the 2^nd Respondent was withdrawn.  In the action, the 1^st Respondent disputes that the Applicant was his employee.  He alleges that he together with the Applicant and all the fellow workers who worked with him on the project on site were the employees of the 2^nd Respondent, the subcontractor of the 3^rd Respondent.    

4. The 3^rd Respondent admitted that it was the principal contractor.  The 3^rd Respondent’s stance was that the 1^st Respondent was a subcontractor of the renovation contract at Regal Kowloon Hotel, Tsim Sha Tsui East, Kowloon (hereinafter referred to as “Hotel”).  The 3^rd Respondent was the principal contractor.  The 3^rd Respondent denied that the Applicant was the employee of the 1^st Respondent at the time of the accident or that the Applicant’s injury arose out of an accident in the course of employment of the 1^st Respondent in respect of the work subcontracted to the 1^st Respondent in the Hotel.    

5. The issues of the trial are: -

(1)	Whether the Applicant was injured in the course of work in the Hotel.
(2)	Whether the Applicant was the employee of the 1st Respondent.
(3)	Whether the 1st Respondent was a subcontractor of a contract of which the 3rd Respondent was the principal contractor at the Hotel.
(4)	Whether the Applicant’s loss of earning capacity is greater or lesser than that in the Certificate of Assessment of the Employee’s Compensation (Ordinary Assessment) Board.

The 1^st Issue

6. The evidence of the Applicant was that on 12 May 2002, the 1^st Respondent contacted him and informed him that there was renovation work available at the Hotel and asked him to go to the Hotel for work.  He stated that he had not signed any written terms of employment with the 1^st Respondent.  He was employed orally on a casual basis.  It was whilst he was installing wooden doors on the 12^th floor of the Hotel on the 18May 2002 at about 3:30 p.m. that as he was adjusting the fit of the door he closed the door he was working on, his right thumb got crushed between the door and the door frame.  He stated that his co-workers Ah Wai and Chiu Kam Hung were in the vicinity but did not witness the accident.  He notified, one of the workers close by to telephone the 1^st Respondent to inform him of his accident.  The 1^st Respondent took him to the hospital.  In the Clinical Management Sheet of Q.E.H., at page 212 of the BD, it is recorded that “the Applicant was admitted with friend – decoration worker”.

7. The 1^st Respondent gave evidence that the Applicant was working on the Hotel site.  On the date of the accident, namely 18 May 2002, he, the Applicant and other co-workers had finished lunch and went back to the Hotel to work.  He stated that he had given instructions to the Applicant to work on the installation of doors and he was informed by one of the workers of the accident and he took the Applicant to Queen Elizabeth Hospital.  Whilst in the hospital, the Applicant told the doctor that he crushed his right thumb whilst at work (see medical report of Q.E.H. at page 59 of Bundle of Documents(“BD”)).  In the medical notes of the Accident & Emergency Department at pages 205 and 206 the record shows that it was an “injury by door” and “crushed by closing door”.  His occupation as a decoration worker was stated.  

8. The 3^rd Respondent’s contention was that the Applicant was not working in the Hotel at the time.  He called Mr. Leung Wing Siu, (hereinafter referred to as “Mr. Leung”) the Assistant Project Manager of the 3^rd Respondent to give evidence.  

9. Mr. Leung adduced his witness statement into evidence as his evidence in chief.  He stated before work started he had arranged all subcontractors and their own workers to have a briefing meeting with him that he informed them of the regulations for working at the Hotel.  He told them that they had to sign in and out on the attendance records kept at the Security control room at the ground floor of the Hotel and was required to wear their work permit during work.  However it became clear upon cross-examination that as the Applicant started work after Mr. Leung’s first briefing meeting.  The Applicant had not attended this meeting.  He stated that he was shown a photograph of the Applicant by the 3^rd Respondent’s staff but could not recognize the Applicant as having seen him before.  However it became clear upon cross-examination that he was shown a copy of the image on the photocopy I.D. Card of the Applicant and the image on it was not that clear so that the person it represented was not identifiable.  He had not seen a photograph of the Applicant as stated in his Witness Statement.  He stated that after he learnt of the accident he asked Mr. Yip Hing Choi, (hereinafter referred to as “Mr. Yip”), the Senior Duty Engineer of the Hotel to search the attendance records from the 17 to 18 May 2002 and Mr. Yip told him that the name of the Applicant could not be found on the attendance records.

10. The 3^rd Respondent also called RW4, Mr. Yip to give evidence.  He stated that he had looked at the records kept by the Security Guards and could not see the name of the Applicant in the record of workers who had registered on the dates 13 to 18 May 2002.  However he looked at these records some years ago as the records are only kept for one year.  Only those for the 17 to 19 May 2002 were adduced by him and these are at pages 44 to 46 of the BD.  The 3^rd Respondent’s solicitors had not requested the records of the earlier dates and these have been destroyed.  

11. Mr. Yip stated that it is not possible for workmen to gain entry into the Hotel site without passing through the Security control room and registering there.  He drew a plan of the back entrance to the Hotel and it is marked Exh R3.  He stated that there is an electronically controlled gate which is closed all the time and workmen could not gain entry through that gate into the utility lifts without going through the Security control room.  The Security Guards could see any one walking through any opening through the security gate into the lifts by video surveillance cameras inside the lifts.  He challenged the plan drawn by the Applicant at Exh R1 as it did not show the Security Gate.  He stated that the gate is normally closed and only opened when required and even when there is delivery or collection of rubbish from the hotel by vehicle prior arrangement would be made with the Security Guards for vehicles to enter and the gates would only then be opened.  He stated that he would regularly walk through the renovation work sites twice a day.  If he or his staff saw workmen without their work permits he would tell them off and they have to leave the site.

12. The Applicant’s solicitors together with the Applicant went to the Hotel and took photographs of the security gate and the entrance leading to the utility lifts where the Applicant stated that he gained entrance to the Hotel without passing through the Security control room.  These photographs were adduced into evidence as Exh A1.  Photo 1 in Exh A1 showed the security gate slightly opened.  Photo 3 showed the sloping path along the west of the entrance with a railing at its right and some rubbish bins.  Three lifts with orange doors could be seen.  Photo 7 showed the staff entrance through the Security control room as there is a plaque with words and an arrow pointing to the direction of the entrance through there.  According to the Applicant he did not gain entry through this staff entrance but through the security gate along the sloping path on the west of the security gate as seen in the plan drawn by him in Exh R1.  

13. Upon further cross-examination by the 3^rd Respondent, Mr. Yip stated that the security gate was usually not open between 8:30 – 9:30 a.m. when there were a lot of deliveries and when most workmen would enter to work.  He also admitted that he was not supervising the security guards and he would not be the one inspecting their work.      

14. He was given a photocopy of the I.D. Card of the Applicant and from looking at that he could not identify the image on the I.D. Card as someone who has worked on the Hotel site.  However, the image on the I.D. Card which he was given to see though he said was better than that on the photocopy I.D. Card of the Applicant at page 111 could not have been clear.  What Mr. Yip stated in para. 6 of his Witness that he was shown a photograph of the Applicant was found not true upon cross-examination.

15. The 3^rd Respondent’s Director, Mr. Tsang Chi Yeung (hereinafter referred to as “Mr. Tsang”) cross-examined the Applicant on the details of the work site and the Applicant could not remember many of the details.  He could not remember the colour of the doors he installed, what other work he did apart from installing doors, whether the whole floor was opened up for work, which direction in the corridor they started work, what toilet he used apart from that it was not the toilet in the room, where he got electricity or whether there was facility for washing hands.  From this Mr. Tsang challenged the reliability of the Applicant’s evidence that he worked on the site.    

16. The Applicant and the 1^st Respondent said that the Applicant was injured when working on the door on the 12^th Floor.   Mr. Leung stated that work on the 12^th Floor had not started until 20^th May.  Mr. Yip supported this evidence and stated that the work on the 12^th Floor had not started on the 18^th May.

17. Mr. Tsang also stated that the 1^st Respondent did not immediately report to him about the accident until 14 days later saying that he would try to resolve it between the Applicant and himself.   He stated that this was suspicious.

18. Mr. Tsang contended that there is no record of workers adduced by the 1^st Respondent stating the days of work by the Applicant and his wages.  Further he pointed out that the Applicant did not adduce a witness to testify to the fact that he was injured at the site of the Hotel even though there were other workers around. 

19. The Applicant stated that he was not aware of the need to apply for the work permit or to register at the Security control room to enter the Hotel site until towards the 2^nd or 3^rd day of work when he saw his co-workers wearing their work permits.  He then asked a co-worker and they told him he had to register.  He had only registered one day because he was always late for work and it took time to register.  He found the entrance into the Hotel through the car park and the utility lifts as in the plan drawn by him and marked Exh R1.  This plan had been submitted by him to the Labour Department previously.  He stated that the security gate had been open throughout the days he was working at the Hotel.  The 1^st Respondent supported this evidence and stated that the security gate was opened and it was possible for him to go in and out through that area several times a day even though in the morning when he arrived for work he went through the security control entrance.

20. Mr. Tsang of the 3^rd Respondent upon cross-examination of the 1^st Respondent elicited the information that the opening to the Hotel through the security gate is in the pathway to the main entrance and taxis and vehicles who drive to the main entrance had to pass in front of it and it is unsightly when the security gate is not closed.  

21. However in the cross-examination of Mr. Tsang by the Applicant’s Counsel, Mr. Tsang was pointed out to a letter written by his staff Ms. Lee to the Labour Department.   In that letter at page 108 of the BD, Ms. Lee stated that “因林楚先生不是本公司直屬之員工，林楚先生是與本公司之一位木工判頭麥富德先生工作的，在本公司的紀錄只有林楚先生之地盤工作證影印副本，作為准許入地盤之紀錄。”.  Mr. Tsang stated that Ms. Lee made a mistake and she did not mean she had the copy of the work permit which was for permission to enter the Hotel site.  Mr. Tsang stated that she meant the safety card.  The Plaintiff’s Counsel submitted that this denial by Mr. Tsang in the face of such clear words of Ms. Lee, his staff, was incredible and unbelievable.  

22. Further, the Plaintiff’s Counsel in cross-examination of Mr. Yip elicited from him the admission that the 1^st Respondent worked at the Hotel almost every day and if he did not work there his workers were there.  Upon looking at the entry and exit registration record of security control at page 44 in respect of the 17 May 2002, neither the 1^st Respondent nor his workers’ signatures were there.  The Plaintiff’s Counsel put to Mr. Tsang that the record at page 44 related to the 17 May 2002 could not have been complete.  That is also the case for pages 45 and 46, which were records for the dates 18^th and 19^th May 2002.  He put to Mr. Yip that the records were not accurate.

23. In coming to my finding on this issue I consider the following:

Evidence that supports the Applicant’s case
(1)	Evidence of the Applicant as well as the 1st Respondent state that the Applicant was at work in the Hotel site at the time of the accident.  The 1st Respondent would not have gained from testifying that the Applicant worked in the Hotel site as it could make him liable to pay for the Applicant’s employee’s compensation were the 1st Respondent found to be the subcontractor of the 2nd Respondent and not employee of the 2nd and 3rd Respondents and were the Applicant found to be the 1st Respondent’s employee.
(2)	The medical records show that the Applicant was taken to hospital by another person.  The Applicant gave evidence that it was the 1st Respondent who took him to the hospital.   The medical records are supportive of the Applicant’s case to some extent even though the medical records did not state the name of the person who took the Applicant to the hospital.
(3)	The medical records state that the Applicant injured his right thumb at work by having it trapped in a closing door and that he was a decoration worker.  This supports the Applicant’s evidence as to how the accident happened and that it happened at work even though it did not state the exact worksite.  The medical records are contemporaneous evidence.  It was the account the Applicant gave shortly after the accident.  It is not very likely for a story to be concocted so soon after the accident.
(4)	The 1st Respondent stated that he had no other work sites that he was involved in on the date of the accident.    There is no evidence that the 1st Respondent was involved in any other worksite on the date of the accident.
(5)	The letter from the 3rd Respondent’s staff Ms. Lee to the Labour Department (page 108 of BD) stated that the 3rd Respondent had a photocopy of the work permit that permitted the Applicant entry into the Hotel site.  This supports the Applicant’s evidence that he had registered on the attendance record at the Security control room on one of the days when he worked before 17 May 2002.
(6)	The 1st Respondent gave the Applicant a cheque in respect of 6 days wages in the sum of $4,800 and also a cheque in the sum of $20,000.00 for employee’s compensation pending the payment of employee’s compensation by the 3rd Respondent (see receipt at page 146).  The receipt stated that the payment was for employee’s compensation.  There is an entry in the Applicant’s Bank of China account showing payment into the Applicant’s aforesaid bank account of $20,000.00, on the same date as the receipt.  This is supportive of the Applicant’s contention that the 1st Respondent was his employee.
(7)	The Applicant gave evidence of how he entered the Hotel through the utilities lift area and not through the security control.  He said that there was no security guards and he could go in and out.  This was supported by the 1st Respondent.  The Applicant drew a plan and submitted this to the Labour Department Exh. R1.  Although this plan is not on entirely similar to the more accurate plan drawn by Mr. Yip, who has worked there and is continuing to work in the Hotel, and is also an Engineer.  The Applicant in his plan nonetheless pin-pointed certain aspects of this area which he would not have been able to know were the security gates totally closed and he had not gained entry through that into the utility lifts.  Were the security gates continuously closed and the Applicant had never gained entry into the Hotel as alleged, he would not have known of the sloping path through which he said he walked to go to the utility lifts.  Even though he only remembered two utility lifts, whilst there were four according to Mr. Yip, yet the location of the two utility lifts were in the right location.  This supports the Applicant’s case that he had been in the Hotel site.  Were Mr. Yip’s evidence to be accepted, the Applicant would not have been to the Hotel through that security gate area at all.
(8)	There was conviction in the Applicant’s evidence.  In the course of the trial after the evidence of the existence of the security gate was uncovered in the evidence of Mr. Yip, the Applicant’s solicitor asked for leave to adduce photographs of the utility lifts and security gate area of the Hotel.  The Applicant and his solicitor went to the Hotel to take photographs on the evening before the last day of trial.  Exh A1 the photographs were adduced.   When the Applicant gave evidence related to the security gate having been opened and he was not aware of its existence because the gates could run along runners and be concealed behind the wall, he gave evidence with great conviction.  It seemed to me that he was not lying but telling the truth.
(9)	The entry exit registration records may not have been complete and records perused by Mr. Yip may not have been recorded.
Evidence that supports the 3rd Respondent’s case
(1)	Evidence of Mr. Yip that the security gate is usually closed and even during the busy morning hour of delivery between 8:30 to 9:30 a.m.
(2)	Evidence of Mr. Yip that he had enquired and seen the entry exit registration records kept by the security control and did not find the name of the Applicant thereon during the period from 13 – 18 May 2002.   However he speaks from memory of 2 years ago as regards records related to 13 to 16 May 2002 because the records were destroyed about a year after the date of the records.
(3)	The security gate being closed.  However, in the cross-examination of Mr. Yip by the Applicant’s Counsel, he started with being categorically sure that the security gate was closed at all times.  Subsequently upon re-examination by the 3rd Respondent he stated that it is usually closed between 8:30 to 9:30 a.m.  Under cross-examination by the Plaintiff’s Counsel, he admitted that he was not supervising the security guards and he could only speak from what were the regulations imposed on the security guards but as regards whether such were always kept is a matter of enforcement.
(4)	The fact that the Applicant was not able to remember details of the Hotel site associated with his work.  However this could be a matter of poor memory of someone who is not too educated and rather nervous when giving evidence.
(5)	Evidence of Mr. Yip and Mr. Leung that work had not started on the 12th Floor until 20 May 2002.  The Applicant stated that he was injured whilst working on a door on the 12th Floor.  The 1st Respondent supported this evidence of the Applicant.
(6)	Mr. Yip stated that he surveyed the site twice a day and if he found any workman without a work permit hanging on his neck he would ask him to leave.  He said that he found no workmen without a work permit.  However the 1st Respondent stated that most workmen put their work permits inside their pockets because wearing it would impede work.  I can see that wearing the work permit would be in the way of a lot of actions and movements of carpentry workers and it is highly unlikely that carpentry workmen would wear it around their necks.  Mr. Yip’s evidence on this that workmen must be wearing it whilst working is neither realistic nor credible.
(7)	Mr. Tsang submitted that the evidence of the Applicant that before commencement of work he had not agreed with the 1st Respondent a fixed daily wage, was not the behaviour of an employee under a contract of employment.  He stated that it was more suggestive of a partnership arrangement.  However the Applicant stated that there was a normal range of daily wage for master carpenters like himself of between $760 per day up to $800 per day, and he expected the 1st Respondent to pay him a normal wage which was within this narrow range.  Further the evidence shows that they had been friends for a long time.  It seems to me that the Applicant’s explanation is reasonable.

24. Having considered and weighed the evidence aforesaid, and as I also had the conviction that the Applicant was telling the truth when he stated in evidence that he was working in the Hotel site as an employee of the 1^st Respondent when the accident happened, I find on the balance of probability upon considering all the evidence aforesaid that the evidence of the Applicant and the 1^st Respondent is true.  I accept the evidence of the Applicant on this issue and I do not find the evidence of Mr. Yip or Mr. Leung reliable.  I therefore find on behalf of the Applicant in the 1^st Issue.

2^nd Issue

25. The starting point is the decision of Cooke J. in Market Investigations Limited v Minister of Social Security [1969] 2 QB 173 which was approved and applied in numerous decisions including in particular that of the Privy Council case of Lee Ting Sang v Chung Chi-keung [1990] 2 WLR 1173.

26. At page184-185 of Market Investigations Limited v Minister of Social Security Cooke J put the test it in this way:   

“	The fundamental test to be applied is this:
	‘	Is the person who has engaged himself to perform these services performing them as a person in business on his own account?”  If the answer to that question is ‘yes’ then the contract is a contract for services.  If the answer is ‘no’, then the contract is a contract of service.  No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases.  The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.
	Chitty on Contracts Volume II 28th Edition at paras 39-009 – 39-024 sets out 10 factors which should be considered in determining whether there was an employer employee relationship.  The factors are:- (i) Control and superintendence; (ii) The organisation test; (iii) Power of selection and appointment; (iv) The power to dismiss or suspend; (v) Payment of wages or salary; (vi) Supply of equipment and ownership of assets; (vii) The fixing of times and place of work; (viii) Personal performance; (ix) The extent of the obligation to work or to employ; (x) payment of social security contributions and income tax.’

27. Based on the following undisputed evidence it is clear that the Applicant is the employee of the 1^st Respondent:-

(1)	According to the evidence of the Applicant and the 1st Respondent, the 1st Respondent was responsible for making the daily work arrangement and deployment of the Applicant.  That means the 1st Respondent had the power to control and direct the Applicant’s work.  The Applicant’s evidence was that he did whatever the 1st Respondent told me to do;
(2)	The 1st Respondent had the power to choose or assign work to the Applicant.  When the Applicant had finished the work in hand, he had to seek instruction from the 1st Respondent on what should be done next;
(3)	The Applicant received a fixed daily wage, that’s $800;
(4)	As the evidence revealed, though the Applicant had to bring his own portable tools to the construction site for use in the course of his work, large scale or electric tools were provided by the 1st Respondent;
(5)	The 1st Respondent had the power to fix the working hours and location of the Applicant;
(6)	The Applicant did not hire any workers to help him and he had to carry out the work by himself;
(7)	The Applicant did not have to bear any financial risk in taking on the work.

The 3^rd Issue

28. The 1^st Respondent and the 2^nd Respondent did not sign any written contracts but it was clear that the 1^st Respondent had submitted a quotation of works to the 2^nd Respondent and these quotations are at pages 116 to 122.  The 1^st Respondent agreed upon cross-examination by Mr. Tsang of the 3^rd Respondent that the quotation included labour and materials.  It is for the entire contracted work.  It is clear that the 1^st Respondent was not paid either a daily wage or a monthly wage.  He was paid based on the quotation.  The 1^st Respondent tried to establish that he and the Applicant and the other workers who worked with him were the employees of the 2^nd or 3^rd Respondent.  There is no evidence that either the 2^nd or 3^rd Respondent paid a daily wage to him or his workmen.  If the 1^st Respondent had any profit it would be his or if he had losses the 1^st Respondent would have to bear it.  The test to be applied is the authority, Market Investigations Limited v Minister of Social Security, referred to above.  

29. In this case, there is no evidence that the 3^rd Respondent either had any control or superintendence of the work in relation to the manner of carrying out the work by the 1^st Respondent or the order in which the 1^st Respondent ought to carry out the work.  The 1^st Respondent provided his own equipment and he instructed some of his workmen to bring some smaller tools.  He hired his own helpers.  He bore his own financial risk as he had contracted to be paid for the whole contracted work at a fixed fee.  He had the responsibility to manage the contracted work and he had an opportunity of profiting from sound management in the performance of his task.     

30. From the aforesaid, the 1^st Respondent was the subcontractor of the 2^nd and or 3^rd Respondent.  I find this issue in favour of the 3^rd Respondent.

The 4^th Issue

31. The Applicant gave evidence that after the accident the tip of his right thumb has no feeling and is numb.  He cannot do fine woodwork or work related to woodwork such as peeling off adhesive or wood boards stuck in a place.  He finds using a hammer hurtful on the thumb.  Using a screw-driver requires gripping it with the thumb. When he turns the screw-driver his right thumb is in pain.  When he uses the plane, which scrapes off uneven surfaces of wood, he has to use his thumb to push it across the wood.  It causes pain to his right thumb.  Whenever he uses these tools his right thumb would be numb.  When he uses force on the tools, there is pain in his right thumb.  

32. The Report of the Plaintiff’s Expert Dr. Wong See Hoi was admitted into evidence.  At page 5 of his Report at page 68 of BD, he stated that there is deformity of right thumb with 15 degrees radial deviations over the distal phalange.  He stated that the handgrip power of the Applicant’s right hand is decreased.  The pincer power of the Applicant’s right hand is slightly decreased.  Dr. Wong stated that the thumb (especially the thumb of dominant hand) is important for one to perform grasping, pinching and most of the fine manipulative functions of the hand.  The persistent stiffness of IPJ of right thumb (0º - 40º) with 15º angulations of proximal phalange that may significantly affect Mr. Lam to perform these fine manipulative works.  Moreover, the persistent pain over his right thumb prevents him from performing heavy lifting and carrying.  The Fifth Edition of the ‘Guides to the Evaluation of Permanent Impairment’ published by the American Medical Association is used as reference for the assessment of the permanent impairment.  He recommended 7% impairment of the whole person for his upper limb and 4% impairment of the whole person for his right thumb stiffness after the accident on 18 May 2002.  For the purpose of employees’ compensation claims, his estimate for the loss of earning capacity was around 8%.

33. On the other hand, the medical expert of the 3^rd Respondent Dr. Chu Yat Cho gave his opinion at para 6.2.2 of his Report at page 79 of the BD.  He stated,

“There was minor hindrance at work because of reduced grip power over the right hand.  Physical examination of the right thumb on 1 November 2004 revealed mild deformity of the nail.  The right thumb was otherwise normal on inspection.  No local tenderness or hypersensitivity was elicited.  There was minimal movement lack over the right thumb.  Overall right hand dexterity was satisfactory.  Objective measurement of grip and pinch power of the right hand revealed mild weakness.  X-rays of the right thumb taken on the day of the current assessment showed evidence of an old fracture at the distal phalanx.  The fracture was well-healed and bone alignment was satisfactory.”

34. It seems that in his assessment, Dr. Chu had not taken into account the numbness of the thumb or pain when pinching and gripping.   He had not taken into account the persistent stiffness of IPJ of right thumb with 15-degree angulation of proximal phalange that may significantly affect the Applicant to perform the fine manipulation work.  He had not taken into account the persistent pain over right thumb when performing repeated tasks that require the right thumb to use force against a tool and in performing heavy lifting and carrying.  I do not find Dr. Chu’s opinion to fully address the subjective symptoms complained of.  I prefer the opinion of Dr. Wong.  

35. On the basis of the opinion of Dr. Wong I find that the Applicant has succeeded in the appeal against the assessment of the Employee’s Compensation (Ordinary Assessment) Board of 2% loss of earning capacity.   I find that the Applicant has suffered loss of earning capacity at 8% pursuant to the opinion of Dr. Wong.  I grant the Applicant’s appeal against the assessment of the Employees Compensation (Ordinary Assessment) Board.

Monthly Earning

36. The evidence of the Applicant were he to rely on section 11(1) (a) is that his usual daily wage was $760 for the month prior to the accident and he normally worked between 10 odd days to 20 days per month.  As he has no evidence of the actual number of days worked in the month immediately before the accident, I take 14 days being slightly lesser than the median between 10 – 20.  On that basis his monthly earnings is $10,640.00.  

Section 9 Compensation

37. On the basis of the Applicant’s age being under 50 years, and based on section 7(1)(b) of the Ordinance section 9 compensation is calculated as:

HK$10,640 x 72 x 8% = HK$61,286.40

Section 10 Compensation

38. The Applicant was certified by the Employee’s Compensation (Ordinary Assessment) Board to be entitled to 158 days of sick leave.  However as the Applicant had been granted his wages for 18 May 2002, the number of sick leaves for which he should be awarded section 10 compensation should be 157 days.  Section 10 compensation is therefore calculated as:

HK$10,640 / 30 x 157 days x 4/5 = $44,546.13.

Section 10A Compensation

39. Section 10A compensation related to medical expenses is supported by receipts at pages 94 to 107 of the BD.  The amount is $1,040.

Deduction of Compensation Received

40. The Applicant had received compensation from the 1^st Respondent at $20,000.00.  Hence this sum should be deducted from the compensation.  Total compensation comes to:

Section 9	HK$61,286.40
Section 10	HK$44,546.13
Section 10A	HK$  1,040.00
	HK$106,872.53
Less $20,000.00	HK$86,872.53

41. I assess employee’s compensation in the sum of $86,872.53 and give judgment to the Applicant against the 1^st and 3^rd Respondents in the sum of $86,872.53 together with interest thereon at 4% p.a. from date of accident to date of judgment and thereafter at judgment rate until payment.  I grant an order nisi for costs of the action to be paid by the 1^st and 3^rd Respondents to the Applicant to be taxed if not agreed with Certificate for Counsel.