SHAHBAZ MOHAMMAD v. PROSPEROUS ENGINEERING (HK) LTD

DCEC 1479/2020

[2022] HKDC 975

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1479 OF 2020

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ASSESSMENT OF COMPENSATION

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1.  This is an assessment of compensation for an Employees Compensation claim. The applicant sustained an accident at work on 23 May 2019 which caused fractures of the right 2^nd, 3^rd and 4^th toes.

Background

2.  The applicant was 21 years old at the time of the accident.

3.  Form 2 was submitted by the Respondent (Trial Bundle pages 78-81) though it took no further participation in the EC proceedings. Interlocutory judgment on liability was entered on 22 October 2021.

4.  The applicant is appealing in respect of Form 7 (Trial Bundle page 96) which granted sick leave from 23 May 2019 to 29 July 2020 and then from 7 August 2020 to 7 January 2021, with permanent loss of earning capacity assessed at 1.5%.

5.  The applicant has submitted a single expert report by Dr Wong Kwok Shing, Patrick (“Dr Wong”) (Trial Bundle pages 54 - 67). Dr Wong is of the view that the sick leave is reasonable but the applicant is “estimated to have 3% whole person impairment” but “considering his previous job as a construction site dismantling worker…he is estimated to have 4% LOEC as a result of the accident”.

Monthly earnings

6.  In the Application, the applicant claimed monthly earnings at the time of the accident as “Full time: HK$20,800 (subject to discovery).” (Trial Bundle page 3, paragraph (f)).

7.  In his witness statement, he only gave evidence that he was earning a daily wage of HK$800 at the time of the accident working for the Respondent. (Trial Bundle page 48 Witness Statement of the applicant, paragraph 10).

8.  During the trial, the applicant claimed that he worked 26 days a month.

9.  The applicant did not produce any documentary evidence of his income supporting his claim for daily wages or days he worked a month. The only documents he produced were copy of salary cheques from his work after the accident (and sick leave period). The respondent stated in Form 2 that the monthly salary was HK$4,500 but this could not be verified as the respondent did not attend the hearing. There was, of course, no other evidence from the respondent.

10.  During the hearing, the applicant adopted his witness statement as his evidence-in-chief. However, when questioned by the court, there were many inconsistencies: -

(i)  The applicant claimed that he was out of work after returning from Pakistan on 1 or 2 May 2019, so he asked his friend and flatmate, Waqi Mohammad (“Waqi”).

(ii)  Waqi then talked to his boss (presumably Ah Keung) and then told the applicant that his boss would like to employ him. The next day, he went with Waqi to a residential property in Causeway Bay and met Ah Keung for the first time. Ah Keung would instruct him what work needed to be done.

(iii)  Ah Keung would pay him HK$800 a day but only at the end of a project.

(iv)  The applicant claimed that his work under Ah Keung was demolition work for private residence, office or other commercial sites like warehouses.

(v)  He confirmed that his work only involved demolishing (eg walls) and then removing the debris to a skip as directed by Ah Keung, who did the same work.

(vi)  Each project would last 3 to 5 days. In between jobs, there would be a day of no work.

(vii)  However, he later claimed that he would work continuously, and if he had worked on a Sunday, he would get one day of rest afterwards.

(viii)  When asked how he could do demolition work on weekends in residential projects, the applicant claimed that on weekends, he would be putting building materials like cement and bricks into the property.

(ix)  When asked why during the demolition phase there would be a need of putting new building material on site, he replied that this would be placed in areas away from the walls to be demolished. He then claimed that Ah Keung also performed this “material transport” job.

(x)  The applicant then claimed that Ah Keung has several projects at the same time so he could work on commercial sites at the weekends.

(xi)  This is clearly not consistent with his earlier evidence about the nature of his work.

(xii)  On further questioning, the applicant then claimed that he only started working for Ah Keung on 20 May 2019, a mere 3 days before the accident.

(xiii)  He then claimed that he had worked for Ah Keung before but confirmed that he did not work for Ah Keung whilst he was employed by “Ever Team”.

(xiv)  The applicant claimed furthermore that he worked for Ah Keung in 2017.

(xv)  However, the court took him through his witness statement (paragraphs 8 and 9) which stated that he was injured in November 2016 and had sick leave until June 2017. After that he could only work for 9 days at a construction site and had to quit because of right knee pain, and he could not find any suitable work mid December 2017 with “Ever Team”.

(xvi)  As such, this is clearly inconsistent with the applicant’s claim that he could have worked for Ah Keung in 2017.

(xvii)  The applicant then claimed that he had worked for Ah Keung for 3 months in 2018. He now said that he worked for Ever Team (which was slope maintenance work) for 2 months from December 2017, and when that project finished, he worked for Ah Keung for 3 months, and after that he returned to work for Ever Team until January 2019.

(xviii)  But this is again inconsistent with his witness statement and previous evidence: paragraph 9 of his witness statement states that the applicant has been working for Ever Team from mid December 2017 to January 2019 and then he left for Pakistan. He also earlier stated in court that he was not working for Ah Keung during his time at Ever Team. Further, he also stated earlier that he was first introduced to Ah Keung in May 2019 after he returned from Pakistan.

(xix)  The applicant again changed his story and now claimed that he was first introduced to Ah Keung by Waqi back in 2018 and not in May 2019, and that “Causeway Bay flat” job actually took place in 2018.

(xx)  On further questioning, he now said that it was him and not Waqi who contacted Ah Keung on 1 or 2 May 2019 asking for work. Ah Keung then told him to the effect that there was no work for him but would call him when there was work, and he only start working for Ah Keung on 20 May 2019.

(xxi)  On questioning about the alleged period of work with Ah Keung in 2018, the applicant said that Ah Keung had 3-4 workers at the time, but when he worked with him again in May 2019, there was only him and another Chinese man. He has never seen this Chinese co-worker before: he was not in the “team” in 2018.

(xxii)  The applicant also claimed that Ah Keung did not only have one project but had several projects ongoing at the same time.

(xxiii)  When asked whether Ah Keung really did not have a “team” working for him, but that he simply asked whoever available for any job. The applicant replied that he did not know.

(xxiv)  However, the applicant insisted that when Ah Keung employed him in 2018, he was working 26 days a month, so he thought that he would be employed the same way in May 2019.

11.  I do not find the Applicant a credible witness. Although he claimed HK$20,800 as his monthly earning in the Application, he did not mention in the Witness Statement that Ah Keung or the respondent has previously been employing him for 26 days a month for a period of 3 months in 2018. This would have been the most crucial evidence to support his claim in monthly earnings and I see no reason why this would be omitted in the witness statement.

12.  Instead, the applicant only tried to justify his monthly working days when giving oral evidence at the hearing, but his evidence was inconsistent and constantly changing, not only in terms of the nature of work with Ah Keung, when and how he met Ah Keung, whether Ah Keung worked on individual projects or several projects, and what period of time he had worked with Ah Keung etc.

13.  As such, I am not convinced by the applicant’s claim of working 26 days a month for a period of 3 months in 2018 with Ah Keung.

14.  On balance, it would appear that Ah Keung was taking up demolishing jobs and the applicant was just one of many “freelance” general labourers who might approach Ah Keung looking for available work. Even on the applicant’s own evidence, Ah Keung did not appear to have a constant team of workers and that he did not call the applicant for work until at least 18 or 19 days after the applicant contacted him in May 2019. This simply illustrated the “freelance” nature of this job: it was likely that Ah Keung would not have a permanent team of “dismantlers” but would simply call up whoever was available for any given size of job he took up.

15.  Under Section 11(1) of the Employees Compensation Ordinance, Cap 282 (“ECO”), the method of calculating earnings is:-

“Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings-

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

16.  For the month immediately preceding the time of the accident, the applicant would not have earned anything because, on his own evidence, he was in Pakistan.

17.  For the calculation for monthly earnings in the previous 12 months, from the applicant’s evidence in court, there appears to be 3 versions of how many days he might have worked per month for Ah Keung/the respondent: (i) 26 days a month; (ii) working 3-5 days on a project and then a rest day, or (iii) only getting a job after waiting 18 to 19 days.

18.  For the reasons I stated before, I am of the view that the applicant has not adduce convincing evidence to show that, on balance of probability, version (i) should be accepted by the court.

19.  Instead, as a freelance general labourer, the days he worked would likely be unpredictable, irregular and haphazard. As such, I would take version (ii) as the “best month scenario” and (iii) as the “worst month scenario” and take the average as the estimated number of working days.

20.  For the “best month scenario”, I would assume that he worked on average 4 days on a project with 1 day “in-between” jobs, and this would mean that he worked 4 in 5 days and thus 24 days a month.

21.  For the “worst month scenario”, assuming that the project he met the accident in would have also lasted 4 days, the applicant had waited 18 days for 4 days of work, which meant that he worked 4 in 22 days so he would only work an average of 4/22 x 30 = 5.45 days a month.

22.  As such, I estimate that the applicant would have worked on average (24 + 5.45)/2 = 14.725 days a month with Ah Keung.

23.  I would accept that the applicant’s daily wage was HK$800, so his average earnings for period he was employed by Ah Keung/the respondent in the previous 12 months would be HK$800 x 14.725 = HK$11,780.

Compensation under Section 9

24.  I accept Dr Wong’s estimation LOEC as 4%. The applicant was 21 years old at the date of the accident so the multiplier is 96 months. and so the compensation under this head should be:-

HK$11,780 x 4% x 96 = HK$45,235.20

Compensation under Section 10

25.  I accept that he had sick leave for 585 days and the applicant did not plead (and the applicant’s lawyers did not claim in submission) for any increase of earnings under paragraph (1A) of Section 11 of ECO, the claim under this head should be:-

HK$11,780/30 x 585 x 0.8 = HK$183,768.00

Compensation under Section 10A

26.  The applicant did not disclose any invoice for medical expense but I note that he was admitted for 4 days for treatment of his toe fractures. He then attended several follow-ups as well as a course of occupational therapy and two courses of physiotherapy.

27.  As such, I would accept HK$4,000 as a reasonable compensation under this head of claim.

Credit for payment

28.  The applicant agrees that he has received a total payment of HK$10,000 from the respondent after the accident so this sum should be deducted from the award.

Conclusion

29.  I assess the total compensation payable by the respondent to the applicant to be HK$(45,235.20 + 183,768 + 4,000 – 10,000) = HK$223,003.20

30.  I would also allow interest at 4% per annum to be awarded from the date of the accident to the date of this order, and thereafter at Judgment rate until payment.

31.  I would order that the costs of the action, including any costs reserved, be awarded to the applicant to be taxed if not agreed. The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.