CHU CHAN CHEUNG v. CHOI HUNG ENGINEERING CO LTD AND OTHERS

DCEC 401/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 401 OF 2007

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J U D G M E N T

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1.  The Applicant, Mr. Chu Chan Cheung, claimed against the 1^st to 3^rd Respondents for compensation under Sections 9, 10 and 10A of the Employees Compensation Ordinance Cap. 282 Laws of Hong Kong (“the Ordinance”).

2.  At the start of the trial, the Applicant’s Counsel, Mr. Wong, applied for leave to withdraw the application against the 2^nd Respondent.  The 2^nd Respondent’s legal representative, Mr. Tam, asked for costs against the Applicant.  Leave was granted to the Applicant to withdraw the claim against the 2^nd Respondent, the issue of costs was adjourned to the end of the trial.  The Applicant’s claim at the trial therefore was only against the 1^st and 3^rd Respondents.

The Applicant’s case

3.  The Applicant Mr. Chu has been working as a steel bender for over 20 years.  In November 2006, he was engaged to work at the construction site of China Light and Power at Lung Kwu Tan (龍鼓灘) in Tuen Mun.  On 17^th November 2006, as he was leaving the power station after the last day of work, he was informed by a colleague, Mr. Tang Chi Cheung (“Tang”), that he had just received a phone call from a friend named “Ah Fai” who told him there was work available the next day at a construction site in Wong Chuk Hang.  Tang asked him to join him at the Wong Chuk Hang construction site the next day.  Mr. Chu said he had known “Ah Fai” for many years as a steel bender at various construction sites.  In recent years, Ah Fai had been introducing him to work at different construction sites in Hong Kong.  He therefore agreed to go with Tang to work at the Wong Chuk Hang construction site the next day.  That same evening, Tang telephoned him and told him he would meet him at the Causeway Bay MTR Station and take him to the Wong Chuk Hang site the next day.  He was told the daily wage was $800.

4.  On the next day at about 7 o’clock in the morning, he arrived at the Causeway Bay MTR Station and waited for Tang.  When Tang failed to show up after a while, he came across a fellow steel bender Lam Wai Choi (“Lam”) at the station.  After discovering that Lam was also going to the same construction site, he decided to go with Lam to the Wong Chuk Hang construction site.  Upon arrival at the construction site, he had breakfast with Lam at a café next to the site before following Lam into the site to start work.  According to Mr. Chu, the construction site was situated next to No. 53 Wong Chuk Hang Road.  The entrance to the site was through a doorway in the hoarding of the construction site on Wong Chuk Hang Road.  At the construction site, he found his friend Tang had already arrived.  After he changed into his work clothes, he was assigned work by the director and shareholder of the 1^st Respondent, Mr. Chui Tim Choi (“Chui”).  At the construction site he was not asked to register his particulars or record his entry, but as both shareholders and directors of the 1^st Respondent Mr. Chui Tim Choi and Mr. Ngan So Hung (“Ngan”) were known to him, he started work assigned to him by Chui immediately.

5.  At around 10.30 a.m., Mr. Chu was standing on top of an I-beam performing steel-bar planting while Ah Fai was on the walkie talkie communicating with the crane operator in charge of hoisting steel bars on the overhead platform 3 floors above the site.  However, the vertical steel bar attached to the I-beam he was using to support himself suddenly became loose causing him to fall from the 2 meter high I-beam onto the base of the construction site.  He claimed other workers working in the vicinity witnessed the accident.

6.  One of the workers helped him up from the ground and Ah Fai came up and told him to take a rest.  Chui later came up to him and told him to go home to rest.  He rested at the construction site until 12 noon, Ah Fai then took him to a nearby café for lunch.  After lunch he took a cross harbour tunnel bus and returned to his home at Ping Shek Estate in Choi Hung.  All the while, there was pain on his right arm and shoulder.  He went to bed until 1 a.m. in the morning but was woken up by the pain on his right elbow, shoulder, back and right foot.  Early next morning on 19^th November 2006, he sought treatment at the Accident and Emergency Department of the Kwong Wah Hospital.  On examination, the doctor found tenderness on palpation over his right shoulder, elbow, hand and lumbar spines.  X-ray of his right arm showed fracture of coronoid process of the right ulnar bone.  His right upper limb was put in a plaster cast and he was referred to the Trauma Clinic for further management.  He was granted sick leave from 19^th November to 5^th December 2006.

7.  On the night of 19^th November 2006, he called up Mr. Ngan So Hung and told him of the accident and the treatments at the Kwong Wah Hospital.  On the next day, 20^th November 2006, he went to the site in search of Mr. Chui Tim Choi and handed over the sick leave certificate.  Outside the construction site, he claimed Chui paid him a sum of $5,000 in cash and told him not to worry and assured him that he would hire him to work in future and told him there was no need to report the accident to the site safety officer.  Mr. Chu also received $800 for the 18^th November from Tang who told him it was wages from Chui for the work he did on 18^th November 2006.

8.  On the night of 20^th November at around 8 p.m., he received a call from Ngan who told him not to report the accident to the Labour Department and he would pay him for the sick leave allowed by the doctor.  On the 5^th December 2006 visit to Kwong Wah Hospital, he was granted sick leave until 9^th January 2007.  That night, he called up Ngan and informed him that the doctor had granted him further sick leave.  On this occasion, Ngan told him he would not accept his sick leave certificate and asked him not bother him any further.

9.  Later, he received a phone call from Tang who informed him he was instructed by Ngan to tell him that the 1^st Respondent was offering to settle the industrial accident with a payment of $10,000 to Mr. Chu.  Mr. Chu rejected the offer and decided to report the industrial accident to the relevant authorities.

10.  The next day, 6^th December 2006, he attended the site safety office at the Wong Chuk Hang construction site located 3 floors above the base of the construction site on a metal platform.  At the site safety office, he met Mr. Shek Chi Cheung (“Shek”), the site safety officer of the main contractor (3^rd Respondent) and the site manager Mr. Ng.  He reported to them the accident on 18^th November 2006.  Shek and Ng expressed doubts on Mr. Chu’s claim of an industrial accident at the construction site on 18^th November 2006.  He was told to return to the site office in the afternoon.  Mr. Chu left the site office and went to the Labour Department immediately because he believed Shek and Ng were not prepared to assist him.

11.  On 22^nd February 2008, the Medical Assessment Board issued a certificate of assessment which certified Mr. Chu to have suffered injuries on his right shoulder, elbow and back, resulting in right shoulder pain and stiffness.  It further certified that the period of absence from duty necessary as a result of the injury was from 19^th November 2006 to 13^th February 2008.  The Board further certified the loss of earning capacity permanently caused by the injury to be 5%.  Mr. Chu attended the Trauma Clinic at Kwong Wah Hospital for following up treatments between 5^th December 2006 to 28^th June 2007.  He also attended physiotherapy sessions between 11^th December 2006 to 18^th May 2007 and occupational therapy sessions between 13^th February 2007 and 17^th July 2007.  On 4^th March 2008, Mr. Chu filed a notice of appeal under Section 18 of the Employees’ Compensation Ordinance to appeal against the medical assessment board’s assessment of the loss of earning capacity at 5%. 

The Respondents’ Case

12.  The 1^st Respondent was a subcontractor responsible for rebar fixing on the construction site in November 2006.  The 3^rd Respondent was the main contractor of the same construction site at the material time.  Both Respondents denied Mr. Chu was employed to work at the construction site on 18^th November 2006.  They further denied that Mr. Chu met with an accident in the course of employment at the construction site or that he had suffered any injuries as alleged as a result of the alleged accident.

13.  The 1^st Respondent adduced evidence from Mr. Chui Tim Choi and Mr. Ngan So Hung.  Both witnesses agreed they had worked with Mr. Chu previously at a construction site in 2005.  According to Chui, his practice was to start work at the construction site after 9 a.m. daily.  He admitted Mr. Lam Chi Fai (“Ah Fai”) was the steel bender ‘snakehead’ at the construction site on 18^th November 2006.  He denied Mr. Chu was one of the steel benders hired to work at the construction site on 18^th November 2006.  He further denied he had ever hired Mr. Chu or given him any wages or the sum of $5,000 on 20^th November 2006 nor did he tell him not to report the accident to the relevant authorities.

14.  Ngan claimed he had first come to know Mr. Chu at a Tin Shui Wai construction site in 2005 where the 1^st Respondent was the steel bending subcontractor at that site.  He claimed that the only reason Mr. Chu had his telephone number was because, on that occasion, Mr. Chu had asked for his name card.  Mr. Ngan further claimed that on that occasion Mr. Chu had asked him to help him to lodge a claim for his back pain which had troubled him from time to time so that he could claim insurance compensation.  He asked Mr. Chu if he had an accident at the site that day, Mr. Chu told him he did not have an accident at the site that day.  Ngan said he immediately turned down Mr. Chu’s suggestion to make a false claim for industrial accident compensation.

15.  The 3^rd witness for the 1^st Respondent was Mr. Lam Chi Fai (“Ah Fai”).  He denied he had asked Mr. Chu to work at the Wong Chuk Hang site.  He further denied he had asked Tang, his cousin, to work at the Wong Chuk Hang site on 17^th November 2006 evening.  He said he knew Tang was employed as a casual steel bender on monthly pay by the steel bending contractor to work at the power plant in Lung Kwu Tan in Tuen Mun, so there was no need for him to seek employment on 18^th November 2006.  Mr. Lam further denied that he was in charge of the walkie talkie and communicating with the crane driver at the construction site on 18^th November 2006.  He said he did not possess an operator’s license to perform such duties.  He further denied there was an industrial accident at the construction site on 18^th November 2006 involving Mr. Chu.

16.  The 3^rd Respondent adduced evidence from Mr. Shek Chi Cheung, the site foreman and site safety officer, stationed at the construction site on 18^th November 2006.  Mr. Shek claimed he was in charge of monitoring and checking the progress at the site while the trainee consultant engineer would record the data and fill in the site report.  According to Mr. Shek, the top rebars were not completed until 21^st November 2006 after which planting of the column rebars would commence.  He admitted that Mr. Chu did come to the site office sometime at the end of November 2006 claiming he had an accident while working at the construction site on 18^th November 2006.  When Shek asked him a number of questions about the site, Mr. Chu was not able to answer the questions correctly.  Therefore, he did not believe Mr. Chu was working at the site and had an accident on 18^th November 2006.

The Issues

17.  The issues are:

Whether the Applicant was employed by the 1^st Respondent and working at the construction site on 18^th November 2006; and whether the Applicant was injured at the construction site on 18^th November 2006.

Findings on Liability

18.  Mr. Chu claimed he was asked to join Tang Chi Cheung to work at the construction site by Lam Chi Fai (“the snake head”) as a steel bender of the 1^st Respondent.  He claimed he and Tang were told on 17^th November 2006 that their work at the power station had finished.  When Tang received the telephone call from Ah Fai, Mr. Chu was with Tang and he understood from Tang that Ah Fai had asked the two of them to work at the construction site in Wong Chuk Hang on 18^th November 2006.  However, Ah Fai in his evidence in Court denied he had ever invited Tang and Mr. Chu to work at the construction site.  It is not disputed that both directors and shareholders of the Respondents, Chui and Ngan, were known to Mr. Chu, and Mr. Chu had worked for them previously at different construction sites.  Both Chui and Ngan denied they had engaged Mr. Chu to work at the construction site on 18^th November 2006.

19.  On the other hand, Mr. Lam Wai Choi, giving evidence for the Applicant, claimed he had been working at the construction site for over a week before he came upon Mr. Chu at the Causeway Bay MTR Station on the morning of 18^th November 2006.  After he found out Mr. Chu was going to the same construction site, he volunteered to take Mr. Chu to the site.  Mr. Chu admitted he did not wait any further for Tang at the MTR Station and had travelled together with Lam because he wanted to have some breakfast before starting work at 8 a.m.  The Applicant and Lam’s evidence is contrary to the evidence of all of the Respondents’ witnesses.  Furthermore, Ah Fai and Chui both denied that Lam had been engaged to work at the construction site at all in November 2006.

20.  Mr. Wu, Counsel for the 1^st Respondent and Mr. Tam, legal representative for the 3^rd Respondent both questioned the credibility of Mr. Chu and his witness Lam Wai Choi.  They pointed out at the hearing, Mr. Chu had changed the date of submission of the first sick leave certificate to Chui in his witness statement to 20^th November 2006.  Both the 1^st Respondent’s and the 3^rd Respondent’s witnesses insisted 19^th November 2006 was a Sunday and the main contractor did not have a licence to work on Sunday at the site; therefore, it was not possible for Mr. Chu to have found Chui at the site on 19^th November 2006.  Mr. Tam criticized Mr. Chu to be less than honest at the joint examination by Drs. Lau and Chiang, for they had concluded in the report that:  “Mr. Chu was not exerting maximally during the test.”  Mr. Tam thought such behaviour reflected Mr. Chu’s intention to deceive in order to get a larger compensation for his injuries.  Mr. Tam further accused Mr. Chu for burgling into the construction site at 7.30 a.m. to take the photographs exhibited in the bundle.  Mr. Tam considered such behaviour indicated Mr. Chu to be a person who would use unlawful means to achieve his goal.

21.  Mr. Chu admitted at the hearing that he had made a mistake on the date of his visit to the site after the accident when he made the witness statement.  He also did not know it was unlawful for him to visit the site at 7.30 a.m. to take photographs of the site, he was only following the advice of the staff at the Labour Department to get some pictures of the site.  He claimed he did not break into the site, all he did was entering the site at the Wong Chuk Hang Road hoarding through an unlocked opening.  He claimed he did not do anything illegal because he was only taking photographs. 

22.  After hearing and observing the demeanour of the witnesses giving evidence in the witness box, I find both Mr. Chu and Lam to be honest witnesses.  Both are unsophisticated construction site workers.  Mr. Chu proudly admitted that through his hard work, he had put his 3 children to university, all of them are now studying higher degrees in the United States of America.  He described that he and his wife are thrifty and hard working and he did not even own a mobile phone.  It was his practice while he was working as a steel bender to concentrate on his work and keep his mouth shut.  He would go to work on time and that was why on the day of the accident he was eager to get to the site early before starting work at 8 a.m. sharp.  Because Tang was late that morning, he decided not to wait for him and went with Lam to the construction site.

23.  Both Mr. Chu and Lam gave detail descriptions of the construction site.  Lam, in particular, was able to describe how he had in the first few days entered the construction site at the site office level and he had registered his attendances there.  He further described how the upper level of the construction site could also be accessed from the base of the construction site at the Wong Chuk Hang Road level.  He also gave detail descriptions of the Wong Chuk Hang Road level entrance and the access down into the base of the construction site through a ladder on the side of the entrance at Wong Chuk Hang Road.  He gave a detail account of Mr. Chu’s visit to the site after the accident looking for Chui and how he told Mr. Chu to wait outside the site because he was not wearing a site helmet.  He also said he witnessed Chui going out to meet Mr. Chu.

24.  Mr. Shek, the foreman and site safety officer of the main contractor, claimed he did not believe Mr. Chu when he went to the site office to report the accident on the 18^th November 2006 because Mr. Chu was not able to describe accurately where the crane was located at the upper level.  The 1^st Respondent’s witnesses, however, agreed that from the base of the construction site, it was difficult to see where the crane was located 3 floors up above the base of the site.

25.  Ah Fai and Chui admitted they both knew Mr. Chu because they had worked together in other construction sites previously.  According to Chui’s evidence, even though he had employed a number of permanent casual steel benders working for him on a monthly basis, the work at the construction site required a few more steel benders.  The site record produced showed there were 21 steel benders working at the construction site at the material time.  Chui admitted he had enlisted the help of the “snakehead” Ah Fai to find a few more steel benders to work at the site.  Chui also admitted the 1^st Respondent had taken up sub-contract work in 3 construction sites at the time, and he had been sending a couple of his own steel benders to work at other sites from time to time.  Consequently, it is quite possible that the Wong Chuk Hang site did require a few more steel benders after the steel bending work started at the site in November 2006.

26.  I have carefully assessed and considered the evidence of all the witnesses who gave evidence at the trial.  I believe Mr. Chu and Lam were telling the truth.  They could not have given such detail descriptions of the construction site if they had not been working there.  I further find Chui’s and Ah Fai’s total denial of employing Mr. Chu or Lam at the construction site incapable of belief.  Chui claimed that in his 10 odd years as a steel bending subcontractor, he had never had anyone of his steel benders claiming insurance for industrial accidents.  And that none of his workers had ever had any serious injuries other than minor injuries to the fingers.  If a worker was injured at the site he would ask the worker to take a few days’ rest before returning to the site to carry on working.  I find this to be a consistent attitude on Chui’s part and it is consistent with Mr. Chu’s evidence that he was given $5,000 and told to take a few days’ rest after Mr. Chu handed over his first sick leave certificate to Mr. Chui on 20^th November 2006.  Mr. Chu said in Court that he had kept this $5,000 cash in a plastic wrap as proof.  He considered it strong evidence in support of his claim that Chui told him not to report the accident to the main contractor or to the Labour Department.

27.  Chui’s partner Ngan tried to paint a picture of Mr. Chu as a person who was after insurance compensation referring to an incident in 2005 when Mr. Chu asked Ngan if he could obtain insurance compensation for the back pain he was suffering.  Ngan had immediately rejected Mr. Chu’s proposal because Mr. Chu did not injure his back during the period he was working at the 1^st Respondent’s Tin Shui Wai construction site in 2005.  He was quite right in refusing to make an insurance claim for Mr. Chu on that occasion.  However, this is a different occasion.  Mr. Chu’s accident was overheard by Lam Wai Choi.  Lam also saw Mr. Chu on the ground suffering from pain after the accident.  Furthermore, the medical evidence produced by Mr. Chu from Kwong Wah Hospital is supported by the joint medical reports of Drs. Chiang and Lau.  They all pointed to the history of Mr. Chu having fallen from height while at work on 18^th November 2006.  The doctors confirmed Mr. Chu’s injuries to be consistent with a fall from height.  If Mr. Chu had deliberately fabricated the whole incident about sustaining injuries at work, it would be more logical for him to claim he had injured himself at the Lung Kwu Tan power station site, a site he had been working for over 2 weeks until 17^th November 2006.  Why should he pick a construction site at a location unfamiliar to him and far away from the sites where he used to work such as Tuen Man or Tin Shui Wai?

28.  I find the evidence of Mr. Chu and Lam inherently plausible and I accept Mr. Chu was injured at the construction site when he was employed by the 1^st Respondent.  The construction site on Wong Chuk Hang Road was where the 3^rd Respondent was the main contractor and under S.24(1) of the Ordinance, the principal contractor is also liable to the injured worker.  I find the 1^st and 3^rd Respondents liable under the Ordinance to Mr. Chu.

Quantum

Section 9 of the Ordinance

29.  Mr. Chu was aged 49 at the time of the accident.  Under Section 7(1)(b) of the Ordinance, a multiplier of 72 months is applicable.  I accept that as an experienced steel bender, his average monthly wage was $20,800 ($800 x 26).  Drs. Chiang and Lau in their joint report are of the opinion that Mr. Chu may not be able to return to work as a steel bender.  Dr. Chiang estimated the permanent impairment of the whole person from the estimated actual loss in the range of motion of Mr. Chu’s right shoulder and right elbow to be 5%.  Dr. Lau, on the other hand, considered the impairment of the whole person as a result of residual pain in Mr. Chu’s right shoulder and right elbow after the contusion injury to be 3%.  Dr. Chiang suggested the loss of earning capacity to be 8% while Dr. Lau considered the loss to be 5%.  The assessment reached by the Medical Assessment Board was 5% loss of earning capacity and Mr. Chu is appealing against that assessment.

30.  I have considered the assessments of Drs. Chiang and Lau and the condition of Mr. Chu.  He had received quite a number of sessions of physiotherapy and occupational therapy.  He has reached maximal medical improvement level and his condition has improved greatly since the time of the accident.  He has the appearance and behaviour of a person in good health when he appeared in Court.  Dr. Chiang is of the view that he can return to work in lighter casual jobs at construction sites.  Dr. Lau also is of the view that he can resume lighter kind of construction work.

31.  It is unfortunate that though Mr. Chu may not be able to return to work as a steel bender he has not returned to construction work or for that matter any form of gainful employment other than helping out at his wife’s store at the market.  This is clearly out of choice which is unusual for a self-professed hard working person.  Because of that, there is no evidence of his monthly earnings after the expiry of his sick leave.  He is clearly capable of lighter jobs in the construction industry.  Mr. Wong, counsel for the Applicant, suggested that the Hong Kong Paper Mills case should be applied in Mr. Chu’s appeal against the assessment of the Medical Assessment Board on the loss on the earning capacity.  The present case is very different from the Hong Kong Paper Mills case where the applicant suffered a spinal injury and refused to undergo a surgical operation to improve his condition because of the risks involved.  The Court of Appeal took into account both his back injury and injury to one leg and concluded his total loss of earning capacity to be 50%, the assessment was reached on the basis the applicant’s injuries were not listed in Schedule I of the Ordinance.  In the present case, Mr. Chu’s loss of earning capacity was assessed at 5% by the Employee’s Compensation (Ordinary Assessment) Board while in the joint experts’ opinions it was 5% and 8%.  The injuries suffered by Mr. Chu cannot be regarded as serious.  His recovery was also complete.

32.  I do not think the Hong Kong Paper Mills formula is applicable in this case that the general construction worker’s daily wage according to the Census and Statistic Department’s statistic is applicable if Mr. Chu had recovered but not returned to work at all since the accident out of choice.  He has not even made an attempt to return to work at the construction site though he is obviously fit enough to do so.  It is unrealistic to make an assumption in the present case of his possible earning capacity at the construction site when the injuries are not as serious as the applicant in the Hong Kong Paper Mills case and where the MAB assessment was comparable to the Schedule I list.  I am not going to disturb Mr. Chu’s loss assessed by the Medical Assessment Board of 5% because I find it to be a proper assessment of his earning capacity.  His condition would have improved further if he had continued to practice exercises prescribed by the physiotherapist and the occupational therapist.  As Mr. Chu did not try his best when he was examined by the two medical experts, the Court is left to guess at the extent of his recovery.  My assessment of his loss under Section 9 is as follows:

   $20,800 x 72 x 5% = $74,880.

Section 10

33.  Mr. Chu’s sick leave certified by the Medical Assessment Board was 19^th November 2006 to 13^th February 2008, a total of 452 days.

   $20,800 x 452/30 x 4/5 = $250,709

Section 10A

34.  Medical expenses were supported.  They are: $140 + $100 = $240

Summary

Section 9	$74,880
Section 10	$250,709
Section 10A	$240
Total	$325,829
Less (payment by the 1st Respondent)	$5,000
Total	$320,829

Interest

35.  Interest is payable at half Judgment rate from the date of accident to the date of judgment and thereafter at judgment rate until full payment.

Costs

36.  Costs of the Applicant shall be borne by the 1^st and 3^rd Respondents with certificate for counsel.  The 2^nd Respondent’s costs shall be borne by the Applicant to be taxed if not agreed.  Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.