HUSSAIN EHSAN v. NG KWAI PING

DCEC 752/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 752 OF 2010

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JUDGMENT

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1.  This is an application taken out by the applicant claiming employees’ compensation from the respondent.

Background and Preliminary Issues

2.  The applicant is a Pakistan and has to speak Punjabi.  And the respondent speaks Punti and his is unrepresented.  As double translations are required, and most of the documents are prepared in English, with the consent of the parties, I conduct the trial in English with Punjabi and Punti interpreters for the parties.  When this judgment is handed down, arrangement is made for the Court interpreter to interpret this judgment to the respondent.

3.  It is the case of the applicant that for the period from 23 November 2009 to 30 November 2009, he was employed by the respondent as a general labourer for the renovation and decoration works at Flat on 10A, Chung Sum Wai, Tsz Tong Village, Tai Po, New Territories, Hong Kong (“the Site”).  On 27 November 2009, while in the employ of the respondent and during work, he has an accident.  As a result, he has suffered injuries and claims compensation from the respondent according to the Employee’s Compensation Ordinance (“the Ordinance”). 

4.  It is not disputed that the applicant has received a daily wages of $450 from the respondent at the material time. The respondent disputes that he is the employer of the applicant and I would come to the argument later.

5.  The applicant agrees that he used to work about 12 days a month before the accident and seeks to calculate his compensation with a monthly earning of ($450 x 12) = $5,400.  The respondent agrees to use this figure for calculation if he has to pay any compensation. 

6.  The amount of compensation claimed by the applicant is not clear from the Application.  According to the Form 7 issued by the Employees' Compensation (Ordinary Assessment) Board, as a result of the accident, The applicant requires a period of sick leave from 2 December 2009 to 4 March 2010, a total of 91 days.  The applicant also suffers permanent loss of earning capacity of 1%.  In the opening, Mr. Yuen, counsel for the applicant, confirms that the claims are –

a. Under section 9 of the Ordinance - 1% of permanent partial incapacity claimed at $5,184;

b. Under section 10 of the Ordinance - temporary incapacity for loss of earning for the 91 days of sick leave claimed at $12,960;

c. Under section 10A - medical expenses claimed at $1,000; and

d. Pre-trial interest - $1,695.16.

7.  And before I hear evidence, the applicant has a summons for some minor amendment to the Application.  The respondent has no objection and I grant leave for the amendment.

Issues in Dispute

8.  The first issue in dispute is whether the respondent is the employer of the applicant at the material times. The case of the applicant has been set out in paragraph 3 above.  According to the witness statement of the respondent, he claims that he is an employee himself and looks for employee/worker for his employer.  He agrees that the daily wages of the applicant is $450.  The applicant has been employed during the period from 23 November 2009 to 30 November 2009, for a total of 6 working days. 

9.  The second issue in dispute is whether the accident happened at all and if so, does it happened during work. The respondent said he has not been informed of the accident on the date of accident, and also dispute whether there is such an accident.

10.  I shall now proceed to consider the evidence of the parties.

The Accident and the Injury

11.  The applicant has given evidence in Court.  According to his witness statement, (which he has adopted as his evidence in chief), he had been a general labourer in construction sites for around 3 years before the accident and was paid a daily wages of HK$200 to HK$400.  Prior to the accident, he could only work for around 12 days in a month because he had another accident at work on 10 February 2009, which accident had nothing to do with the respondent.

12.  At the time of the accident, the applicant was about 22 years old, born on 17 December 1987.

13.  For the period from 23 November 2009 to 30 November 2009, he was employed by the respondent as a general labourer. From 23 to 27 November 2009, he was instructed by the respondent to carry out renovation and decoration work at the Site.  On 30 November 2009, he was instructed by the respondent to work at another site at Chai Wan. 

14.  It is the evidence of the applicant that his duty included manual handling jobs such as lifting and carrying materials for decoration and renovation, and disposal of construction waste. The respondent had control of overall works at the Site.

15.  On 27 November 2009, in the afternoon, the applicant was instructed by the respondent to work alone at the Site.  He was instructed by the respondent to carry and dispose of the construction material and renovation wastes on the second floor of the Site.

16.  According to the applicant, at around 3 p.m., when he was trying to move and dispose of an old abandoned wooden door, his left forearm was accidentally punched by one of the protruding nails in the wooden door. Sketches of how the accident happened have been produced and attached to his witness statement.

17.  The applicant pulled the nail out of his arm immediately and stopped the bleeding.  After the accident, the applicant said he tried to contact the respondent by his mobile phone, but failed.  On the next day, he told another Pakistan co-worker, whose name he could not recall, to report the incident to the respondent.

18.  The respondent had not instructed the applicant to go to work on 28 and 29 November 2009, which were Pakistan New Year holidays.  On 30 November 2009, the applicant was instructed by the respondent to work at another site at Chai Wan.  He said he had informed the respondent of his injury there. After he finished his work on that day, he was given a ride in the respondent’s vehicle when he showed the wound to the respondent.  The respondent paid him $450 as wage for the day and the respondent did not contact him anymore.

19.  But on 2 December 2009, the applicant found the wound on his forearm was swollen and very painful.  He attended The United Christian Hospital and was diagnosed as having abscess in his left arm. He was hospitalized for five days from 2 December to 6 December 2009, and upon his discharge from Hospital, he was given 15 days sick leave, which was later extended. 

20.  After the applicant was discharged from hospital, he went to the respondent and notified him about the accident again.  The respondent told him not to worry as there was insurance coverage.

21.  As a result of the injury, the applicant was given sick leave by the United Christian Hospital from 2 December 2009 to 4 March 2010, a total of 91 days.  All the sick leave certificates have been produced.  The respondent has not cross-examined the applicant on these sick leave certificates.

22.  At present, he still had persistent pain in his injured left forearm.  He experienced weakness and reduced flexibility in his left forearm and unable to lift heavy objects with his left  hand.

23.  The applicant also produced the said Form 7 given to him by the Employees’ Compensation (Ordinary Assessment) Board.  There is no appeal on the finding on this Form and the respondent has no submission on the Form.

24.  The respondent agrees that the applicant was working by himself on 27 November.  The respondent cross examined the applicant and said he did not notify him on the date of accident.  If the applicant called him on the day, he could inform the company to report to insurance company.  The applicant repeated that he had tried to call the respondent at his mobile phone, but no one answered.  The applicant said his mobile phone is on 24 hours and it was not possible that he cannot be contacted.

25.  The respondent also put to the applicant that if he could not contact him, he could call one of his co-workers.  The applicant said he was working alone when he was injured.  And he had called his “boss”, which is most direct.  And as the boss, he is referring to the respondent whom he said was his employer.

26.  The respondent also cross examined the applicant why he had not informed him of the injury on 30 November, when applicant was working with the respondent.  The applicant said he had informed the respondent and the respondent told him to work slowly.  And after work, when the respondent gave him a ride in his car, the applicant repeated that he had showed him his wound.

27.  The respondent said he did not pay the applicant wages directly.  He paid through the native co-worker of the applicant. He would not have paid him wage directly on 30 November 2009.  The applicant replied that the respondent did pay him on the day and he had asked where to go to work the next day.  The respondent asked him to ask his native co-worker.

28.  The applicant has also called a witness, Mr. Gulfaraz (“AW2”) to give evidence.  AW2 adopted his witness statement dated 7 December 2011 as his evidence in chief.

29.  AW2 said on 27 November 2009, he finished his work at around 4 p.m.  He called the applicant and visited him at the Site.  He saw the wound of the applicant.

30.  The respondent has not cross examined AW2.

31.  The respondent has given evidence.  He adopted his witness statement dated 20 November 2011 as his evidence in chief.  He said the applicant had not informed him of the accident on 27 November or 30 November 2009.  And none of the co-workers knew of the accident.  But he has not called any of the co-workers as witness.

32.  The respondent did not deny that the applicant had been left to work alone at the Site on 27 November 2009.  He also said the owner of the Site had informed him that he said the applicant left the Site on 27 November 2009, dressed properly with no sign of injury. When asked by Mr. Yuen about the details of the owner, the applicant only say that he is one Mr. Man.  He said Mr. Man is not willing to give evidence.

33.  And on 30 November 2009, as he noticed the applicant had been lazy at work, he told the co-worker of the applicant, Khan Mansaf to inform the applicant not to return to work the next day.

34.  The respondent said about 3 weeks after he dismissed the applicant, the applicant went to Tai Pao to meet him and ask for employees’ compensation.  As he never received any prior notice of the accident, he refused to pay. 

35.  The respondent said if he knew about the accident, he would have reported to the insurance company.  On cross-examination, he admits that he has not taken out any insurance policy for employees’ compensation.  He said that his employer and contractor of the Site had told him that insurance policy for employees’ compensation has been taken out.

36.  On cross-examination, the respondent denies that he was notified by the applicant of the accident, or that he had been shown the wound.

37.  The respondent has not cross examined the applicant on details of his injury.  As a remark, the respondent has mentioned in one of his statement to the Labour Department that there is no wooden board at the Site.  But he has not mentioned this in his witness statement and has not cross-examined the applicant. 

38.  The applicant has also produced medical records from United Christian Hospital relating to his treatment and the applicant has not been cross-examined on these documents.

39.  It is also the evidence of the applicant that he has incurred about $1,000 as medical expenses and he has no receipts.  This has not been challenged by the respondent.

40.  I know proceed to consider the evidence of parties on employment relationship.

Who is the Employer of the applicant

41.  It is the evidence of the applicant that the respondent was his employer at the material time.  The respondent gave him instructions on how to work and where to work.  And the tools at work were provided by the respondent.  In re-examination, the applicant said his wages was paid, sometime by the Pakistan foreman, and sometime by the respondent.

42.  The respondent put to the applicant that he is not his employer, which the applicant denies.

43.  The respondent said in his evidence that he was employed to clear the waste and to hire workers, including the applicant, for his employer.  He said he was paid $800 a day, including $200 for his vehicle. 

44.  When being cross examined by Mr. Yuen on the name and address of the employer, the respondent say he only knows that he was surnamed Leung and he only had his telephone number.  And the telephone number had been stored in his mobile phone which he lost after the Chinese New Year.

45.  The applicant has produced a number of documents obtains from the Labour Department, which include a Form 2, a document to be filed by an employer with the Labour Department pursuant to section 15 of the Employees’ Compensation Ordinance. In this document, the respondent signed as the employer of the applicant. It is not disputed that the form is signed by the respondent.  On cross-examination, he said that when he received the documents from Labour Department, he sought advice from District Council Member. As he could not give the name and address of the employer, he had been advised that he must be the employer.

46.  In cross examination, Mr. Yuen referred to a statement given by the respondent to the Labour Department dated 31 December 2009, when the respondent said he was the sub-contractor and had employed the applicant as a decoration odd job worker (本人作為判頭，曾聘HUSSAIN EHSAN 於 2009年 11月 23日至 30 日任裝修散工工人).  The respondent said it was prepared by the District Council Member for him.  He said he was advised by the District Council Member that as he could not find the employer, he has to be the employer.

47.  When asked whether he received payment from Mr. Leung after the job, the respondent said that Mr. Leung complained they had been working slowly.  Accordingly, Mr. Leung only agreed to pay $350 a day for the workers.  However, he paid the difference from his own money to the workers and the workers did have $450 a day.

48.  Mr. Yuen put to the respondent that he had fabricated Mr. Leung because he did not have insurance.  The respondent denied and said he was not an employer and did not have to have insurance arrangement.

Discussion and Finding

49.  I shall now move on to consider the evidence of the applicant on the accident and injury.  He is the sole witness to the accident.  His evidence that he has been injured on 27 November 2009 is supported by AW2 who has visited him shortly after the accident. 

50.  It is the case of the respondent that the owner of the Site has witnessed the applicant leaving the Site with no sign of injury.  But he has not been called as a witness.  The assertion that the owner does not wish to give evidence is not an excuse for not calling him. One could not guess what the owner has seen on 27 November 2009.  I attach no weight to this assertion of the respondent. 

51.  The respondent’s main challenge to the applicant’s evidence is that he has not informed the respondent of the accident until a few weeks later. 

52.  It is not disputed that the applicant, on his own case, has not informed the respondent of the accident on 27 November 2009, as he could not get him on the phone.  It is the evidence of the applicant that he did inform the respondent of the injury, and showed him the wound on 30 November 2009.  He was hospitalized in December and after he was discharged, he looked for the respondent and informed him of the accident.

53.  It is not disputed that the applicant did informed the respondent of the injury in December.  If the respondent has an employer who has arranged insurance coverage for employees’ compensation, I see no reason why it is too late to report to the insurance company.  I would come back to insurance later.

54.  On final submission, the respondent also claims that there is no wooden board or door at the Site.  This appears on his statement to the Labour Department.  But the allegation has not been put to the applicant nor explained in his evidence.  Since the statement has been produced by the applicant, I do take this into account in my assessment of the evidence.  But this remains a bare assertion.

55.  Mr. Yuen submits that the applicant is a reliable witness and his evidence stands unshaken after cross examination by the respondent.

56.  Having considered the evidence of the applicant, I found he has given a truthful account of the accident.  And I accept his evidence that he has been punched by a nail during work.

1.  I accept the evidence of the applicant that the injury is not serious initially and only on 2 December 2009 when the injury has become more serious, he went to Hospital for treatment.  It is settled law that incapacity appears later but result from the injury would be incapacity caused by the injury.  I refer to the judgment of HH Judge Rhind (as he then was) given in Preng Eing Chiau v. Hatch & Turk Health Centres Ltd. DCEC 134/1977：

“How causation operates in this branch of the law is described by Boulter at para. 171 and by MacDonald at para. 397-399 of particular use was the following extract from MacDonald’s para. 399:-

“……  all consequences by way of death or incapacity for work, however remote in point of time, however indirect in process of causation, and however unnatural or improbable they may be, do in fact result from the injury by accident suffered if, tracing an uninterrupted series of events each following on the other as effect and cause, the injury (by accident) can be shown to be the responsible and material factor, or one of two or more responsible and material factors, causing ultimate death or incapacity, and without which the death or incapacity would not have occurred at the time or in the manner it did occur ….”

57.  I accept the evidence of the applicant that the injury has become more serious on 27 December 2009.  I found that the abscess is an injury resulting from the accident on 27 November 2009, and it is an injury at work.  The applicant is entitled to claim his compensation.

58.  The applicant has to claim his compensation from his employer.  In fact, from the documents now produced in Court, which are signed by the respondent, he admits that he is a sub-contractor at the Site and the employer of the applicant.

59.  The respondent tries to explain that he admits or fills in his name as the employer on the advice of the District Council Member.  But if he is not the employer, he could refuse to sign.  And if he has the telephone number of Mr. Leung, he could at least give such information to the Labour Department for their investigation.  The explanation on why he signs these forms and documents is just unbelievable.

60.  Further, there is no evidence on who this Mr. Leung is.  The respondent kept saying in cross examination that if he knew about the injury earlier, he could report to the company to report to insurance company.  But under further examination, he only gives the surname of Mr. Leung, and he has no information on the insurance company.  And he could not give even the telephone number of Mr. Leung as he has lost it after the Chinese New Year.  It is too much of a co-incidence.

61.  Balancing all the evidence, I do not believe his evidence that he is another co-worker to engage workers, including the applicant, for Mr. Leung. 

62.  Further, it is the version of the respondent that when Mr. Leung refused to pay $350 a day for the workers, he bears the loss by paying the difference to the workers.  If he is just a co-worker, I see no reason why he has to take the loss. 

63.  I accept the evidence of the applicant that the respondent gave instruction at work and provided the tools.  From the evidence and the above analysis, I found on the balance that the respondent is the employer of the applicant at the material times.

Ruling and Order

64.  With the above finding, the applicant is entitled to recover his employee’s compensation from the respondent.

65.  To assess the compensation, the monthly wages has been agreed at $5,400.  

66.  The permanent incapacity of 1% and temporary incapacity has been certified by the Assessment Board and there is no appeal against the assessment. I found the permanent incapacity at 1%.

67.  Further, it is the undisputed evidence of the applicant that he was less than 22 at the time of the accident.  For the partial permanent loss of earning capacity of 1%, the calculation of Mr. Yuen is correct. 

68.  For the temporary incapacity, the applicant also relies on the sick leave certificates.  They are prima facie evidence of the temporary incapacity and the respondent has not cross-examined the applicant on these certificates.  There is no evidence to rebut the prima facie evidence.  I accept the medical evidence. 

69.  I therefore find that the Applicant is entitled to compensation for 91 days of sick leave, which is roughly compensation for 3 months’ loss of earning.  Mr. Yuen used 3 months’ earning to calculate the compensation.  I consider it is more accurate to use the daily earning calculated from monthly earning to determine the compensation and my formula appears hereinafter.

70.  I also accept the evidence of the applicant on his medical expenses.  While no receipt is produced, it is supported by the number of day when he is hospitalized and the sick leave certificates.

71.  Accordingly, the compensation is assessed as follows –

a.     Permanent partial loss under section 10 – ($450 x 12 x 96) x 1% = $5,184.00

b.     Temporary loss under section 9A – [($450 x 12) x 12]/365 x 91 x4/5 = $12,924

c.      Medical expenses - $1,000

72.  There be interest on the judgement sums from date of accident to date of judgment at half judgment rate, i.e. 4% p.a. and thereafter at judgment rate until payment. 

73.  There is no reason why the applicant should not have costs of the action, save for certificate for counsel.  This action, even in the applicant’s case, is less than $30,000.  It has to be brought in the District Court in accordance with section 18A of the Ordinance. But it would not justify the engagement of a counsel to handle the trial, the case turns on factual dispute.  Balance all, I am not minded to give certificate to counsel.  I would give an order nisi that the applicant do have cost of the action (including all costs reserved if any) to be taxed if not agreed with no certificate for counsel such order nisi to become absolute 14 days from today.