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HCPI 504/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 504 OF 2009
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BETWEEN
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LAI CHEONG MING |
Plaintiff |
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and
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CHENG CHUNG YU ERIC trading as HUI FUNG METAL WORK FACTORY |
1st Defendant |
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YEUNG TUNG KEE PAUL (楊棟基) |
2nd Defendant |
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| Before: Mr Recorder H Wong, SC in Court |
| Date of Hearing: 16 - 19 October 2012 |
| Date of Judgment: 7 January 2013 |
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J U D G M E N T
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INTRODUCTION
1. In this action, the Plaintiff claims damages against the 1st and/or 2nd Defendant in respect of an injury suffered by him while at work on 25 July 2006.
2. When this action was originally commenced in July 2009, the claim was made against the 1st Defendant only. It was (and still is) the Plaintiff’s case that the 1st Defendant was his employer. The 1st Defendant however alleged that it was the 2nd Defendant who was the employer of the Plaintiff. It was the 1st Defendant’s case thathe had subcontracted all of his transportation and delivery work to the 2nd Defendant. The Plaintiff accordingly joined the 2nd Defendant as an additional defendant in this action. The 2nd Defendant gave notice (by filing a Form 16C on 16 May 2011) that he did not wish to contest liability in the present proceedings. The Plaintiff nevertheless maintains that the 1st Defendant was his employer. He has not entered interlocutory judgment against the 2nd Defendant despite the latter’s admission of liability.
3. At all material times the 1st Defendant operated a metal hardware business selling, inter alia, metal gates and other metal products. He was the proprietor, and traded in the name, of Shui Fung Metal Work Factory (“Shui Fung”). Shui Fung has a shop at Ground Floor, No.87E, Hong Ning Road, Kwun Tong, Kowloon, Hong Kong (“the Shop”).
4. At about 9:00 a.m. on 25 July 2006, the Plaintiff was unloading some heavy metal gates and metal window framesfrom a lorry that was parked about 10 meters away from the Shop. He was to move the goods to the Shop. It is the Plaintiff’s case that it was the 1st Defendant’s father (“D1’s father” or “Cheng Snr”) who instructed him to do the work, but as can be seen below, this is a matter of dispute between the parties.
5. The lorry did not have any elevator platform for unloading the goods and no equipment or other tools were provided to the Plaintiff to carry out the work. Accordingly the Plaintiff had to manually carry the goods on his back and moved them with his body.
6. After moving about 5 to 6 metal gates, the Plaintiff felt a sudden sharp pain over his waist, but he managed to unload all the goods at the Shop.
7. Later that day, the Plaintiff was instructed to unload metal goods at anothershop called “Kwai Sing” at Hip Wo Street. The lorry was again parked about 10 meters away from the Kwai Sing shop. Like before, the Plaintiff had to carry the goods on his back and move them with his body. In order to get to the Kwai Sing shop, the Plaintiff had to take 4 downward steps. Just as the Plaintiff was walking down the first step carrying a big glass window (fitted with a metal frame and weighing about 30 kgs), he heard a snapping sound emanating from his back and felt severe back pain. He sustained personal injuries as a result.
8. For the purpose of this Judgment, I do not need to go into the details on how the accident happened. At the beginning of the trial, Mr Albert Cheung, counsel for the 1st Defendant, informed the Court that the only ground upon which 1st Defendant challenged liability was that he disputed that he was the employer of the Plaintiff. Mr Cheung confirmed to the Court that he accepted that whoever might be found to be the employer of the Plaintiff was negligent, and would be liable to the Plaintiff for his injuries. This being the case, the only issue (as far as liability is concerned) in contention between the parties that requires resolution by the Court is the issue of employment. If I find the 1st Defendant to be the employer of the Plaintiff, he is – as Mr Cheung accepts – liable to the Plaintiff for his injuries.
9. The 2nd Defendant has not filed any witness statement,and did not appear at the trial.
THE PLAINTIFF’S CASE
10. It is the Plaintiff’s case that in about early 2006, a friend of the Plaintiff (whom he referred to as “Ar Yuen”) introduced Cheng Snr to the Plaintiff at a dinner gathering. The Plaintiff expressed an interest to work in the metal gate industry and Cheng Snr agreed to hire the Plaintiff to work for Shui Fung.
11. The initial salary was about $6,000 per month only, but the Plaintiff was content with it as he wanted to learn the special skill of steel installation and he expected his salary would increase overtime.
12. Thereafter the Plaintiff started working at the Shop. Soon he came to know that the 1st Defendant was Cheng Snr’s son and he regarded both of them as the boss of Shui Fung. Cheng Snr would often direct theoperations at the Shop while the 1st Defendant would often be in his office on the 2nd floor of the Shop.
13. Shortly after he began his employment with Shui Fung, the Plaintiff was asked by D1’s father to work at a construction site in Tuen Mun where he assisted a certain Master Choi and Master Ma in doing some metal netting work. According to the Plaintiff, he spent about 1 to 2 months at the Tuen Mun construction site.
14. From time to time, the Plaintiff was also instructed to help loading and unloading goods at Shui Fung’s warehouse at Hung Shui Kiu. After the warehouse was closed down, the metal goods were sent directly to the Shop and the Plaintiff would do the loading and unloading there. From time to time the Plaintiff was also instructed by Cheng Snr to move and carry the metal goods of Shui Fung and to deliver the same to various places and shops.There were also other duties assigned to him including, for example, depositing cheques to various bank accounts of Shui Fung.
15. The Plaintiff alleged that he was paid a salary of $6,000 whilst he worked at Shui Fung. The salary was paid to him by Cheng Snr in cash. The Plaintiff told me that whenever he was in need of cash, he would ask Cheng Snr to pay him some money out of his salary. Any remaining salarywould be paid to him at the beginning of the following month.
16. According to the Plaintiff, on the day of the accident it was Cheng Snr who instructed him to carry out the loading and unloading work mentioned above. The Plaintiff also alleged that although he had hurt his back while unloading the metal gates at the Shop, Cheng Snr refused to allow him to rest and told him to get on with his work.
THE 1ST DEFENDANT’S CASE
17. The 1st Defendant’s case, on the other hand, is simply that he was not the employer of the Plaintiff, but rather it was the 2nd Defendant who employed the Plaintiff at the time of the accident. At all material times, Shui Fung had subcontracted their transportation and delivery works to the 2nd Defendant. The lorry that the 2nd Defendant used to transport the goods was owned by the 2nd Defendant himself, and not by the 1st Defendant. The 1st Defendant denied that Cheng Snr had any role to play in Shui Fung. The 1st Defendant further denied that Shui Fung had undertaken any construction project in Tuen Mun, or that Shui Fung ever had a warehouse at Hung Shui Kiu as alleged by the Plaintiff.
THE WITNESSES
18. I heard evidence from the Plaintiff, the 1st Defendant, and a Mr Luk King Yin (“Luk”), who was a worker employedby the 2nd Defendant. I shall deal with their evidence in more detail later.
19. What is to be noted is that the 1st Defendant did not call Cheng Snr or the 2nd Defendant to give evidence on his behalf. As pointed out above, it is the Plaintiff’s case that he was employed to work for Shui Fung by Cheng Snr, and that Cheng Snr played an important role in the day-to-day operations of Shui Fung’s business. On the other hand, it is the 1st Defendant’s own case that he had subcontracted all the delivery and transportation work to the 2nd Defendant and that the Plaintiff was employed by the 2nd Defendant. It can thus be readily seen that both Cheng Snr and the 2nd Defendant should be able to give relevant evidence on the issue raised in this case, namely, by whom was the Plaintiff employed? Cheng Snr could be called to rebut the Plaintiff’s allegations and the 2nd Defendant could be called to support the 1st Defendant’s case. It is not suggested that either of these two individuals could not be found, or could not attend court to give evidence for any reason. As it is, neither was called and I have to decide the issue of employment without the benefit of their evidence.
DISCUSSION ON LIABILITY
(i) Failure to call Cheng Snr
20. The 1st Defendant alleged that Cheng Snr had no part to play in the business of Shui Fung. He claimed that he had an estranged relationship with his father and that Cheng Snr in fact was employed and worked for another business totally unrelated to him.
21. During cross-examination the 1st Defendant gave evidence of an unhappy incident with his father which, among other things, had souredhis relationship withhis father. It is not necessary for me to detail the incident. It arose after Cheng Snr had allegedly consumed some alcohol (whether he was intoxicated at the time I do not know), and a particularly nasty quarrel ensued involving Cheng Snr on the one hand and the 1st Defendant and his mother on the other hand. As said, the details of the quarrel do not matter. Suffice to say that the 1st Defendant still spoke of the incident with emotion (he was in tears) and there was a sense of bitterness that I could detect when he relayed the incident to me. I have no doubt that the 1st Defendant was truthful when he talked about the incident – I observed his demeanor carefully and am sure that his emotion was not feigned, and this part of the evidence came about during cross-examination and it is clear to me that he had not prepared for it.
22. This, however, does not mean that I accept the 1st Defendant’s explanation for not calling his father to give evidence. The quarrel might have left an emotional imprint in the 1st Defendant’s mind, but that does not necessarily provide a good justification for not calling his father to give evidence on his behalf. The 1st Defendant accepted that his father was “not that bad” and that he had tried to be a good father. His evidence given upon cross examination certainly did not suggest anything like a complete breakdown of relationship between father and son. He told me that he would still say “hi” to his father when he saw him, although they did not talk much. Even on the 1st Defendant’s evidence, his relationship with his father was not one of total estrangement.
23. The 1st Defendant claimed that he had neversought his father’s assistance or advice in setting up and operating the business of Shui Fung, allegedly because of his estranged relationship with his father. I do not believe him in this regard. Cheng Snr had worked in the metal hardware business for many years (before his bankruptcy) and had good connections in the field. The evidence also shows that in setting up and running the business of Shui Fung, the 1st Defendant hadin fact made use of his father’s connectionsand network in the metal hardware business. For example, the 2nd Defendant, whom the 1st Defendant engaged as his delivery contractor,was an acquaintance of Cheng Snr for many years (although the 1st Defendant claimed that he came to know the 2nd Defendant through his uncle). Even his staff Donna, who introduced other staff to work in Shui Fung, was a long-time friend of his father. In my judgment, it is improbable that the 1st Defendant had failed to seek his father’s advice and assistance in the business of Shui Fung, while liberally making use of his connections in the field.
24. During cross-examination, the 1st Defendant told me that the unhappy incident between him and his father mentioned above was a direct cause of his wanting to start up his own business as the incident made him realized how important it was for him to have money. He claimed that he did not wish to seek assistance from his father, and described it as an issue of self-esteem(or what he called “骨氣”). He claimed that such self-esteem was “more important than money”. He claimed that this was the reason why he did not call, or wish to call, Cheng Snr as a witness. I have difficulty in accepting this explanation of the 1st Defendant. I find it difficult to understand why, if self-esteem was really an issue, the 1st Defendant did not find it a problem when he helped himself with using his father’s connections in the business of Shui Fung.
25. The fact remains that the Court had no opportunity of hearing from Cheng Snr about his relationship with the 1st Defendant, and what role (if any) he played in Shui Fung. There is no question that Cheng Snr could have spoken to the core factual issues in the present case, and is a witness who – one would reasonably expect – should have been called by the 1st Defendant. In these circumstances the Court is entitled to draw an adverse inference against the 1st Defendant for failing to call Cheng Snr as a witness, unless this Court is satisfied that there is a good reason for the witness’s absence. In this regard, I would follow the principles set out by Brooke LJ in the case of Wisniewski v Central Manchester Health Authority [1998] PIQR 324, at 340, as follows:
(1) in certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action;
(2) if a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness;
(3) there must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue;
(4) if the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/ her absence or silence may be reduced or nullified.
26. The effect of an adverse inference, if it is drawn, is not to treat as evidence what an absent witness would have, as a matter of speculation, said, had he been called. What can be inferred from the failure (without proper explanation) by a party to call a material witness is that the witness, if called, would have given evidence unfavorable to the party concerned. In Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434, at 443G-444B, Le Pichon JA cited the following passage from the judgment in O’Donnell v Reichard [1975] VR 916 at 929 (which was adopted by Aldous LJ in the case of Cavendish Funding Ltd v Henry Spencer & Sons Ltd [1998] 6 EG 146 at 148-149:
“It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a person without explanation fails to call as a witness a person who he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference then they may properly take it into account against the party in question for two purposes, namely:
(a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken;…”
27. Accordingly, while I accept the veracity of the 1stDefendant’s evidence regarding the quarrel that he had with his father, I do not accept that as a result of the incident he has become totally estranged from his father. Nor do I accept that the 1st Defendant has a proper explanation for not calling his father to give evidence on his behalf. The 1st Defendant’s evidence is that he did talk to his father about the present proceedings and he told me that Cheng Snr was of the opinion that the Plaintiff was trying to cheat him out of some money. If that was in fact his father’s view about the matter, I do not see why the 1st Defendant would have any problem at all in inviting his father to give evidence to rebut the Plaintiff’s claim. I do not think that the alleged issue of “self-esteem” was real in these circumstances. I am hence prepared to draw the inference against the 1st Defendant that if his father were called, he would have given evidence unhelpful to his case.
(ii) Failure to call the 2nd Defendant
28. As pointed out above,it is the 1st Defendant’s case that the Plaintiff was employed by the 2nd Defendant, not him. Accordingly the 2nd Defendant’s evidence is obviously of great significance and one would reasonably expect him to be called by the Plaintiff to give evidence on his behalf.
29. The 2nd Defendant was at one point a witness for the 1st Defendant before he was joined as a defendant to this action. However the 1st Defendant then decided that he would not call him to give evidence on his behalf.
30. The 2nd Defendant was initially joined as a co-defendant pursuant to a consent order dated 15 November 2010 made by Master Lo. On 7 March 2011, at a check list review hearing before Master Ng, the learned Master queried the manner by which the 2nd Defendant was joined (in my view the query was rightly raised by the Master as the 2nd Defendant was joined as a party by consent of the Plaintiff and the 1st Defendant only – plainly this was not right as the 2nd Defendant had not given his own consent for being joined). Master Ng ordered that the joinder of the 2nd Defendant as a co-defendant be set aside. After the order setting aside the joinder was made, Master Ng specifically clarified with the 1st Defendant’s solicitor whether the 1st Defendant intended to call the 2nd Defendant as a witness. The 1st Defendant’s solicitor told Master Ng that the 1st Defendant would not call the 2nd Defendant to give evidence on his behalf. Upon such confirmation by the 1st Defendant’s solicitor, Master Ng made a further order as follows (see, paragraph 7 of Master Ng’s Order dated 7 March 2011):
“For the avoidance of doubt, notwithstanding the Order of Master Ng dated 16th March 2010, the Defendant will not adduce witness evidence as to fact from YEUNG TUNG KEE PAUL at the trial of this action.”
31. It is suggested by Mr Cheung, counsel for the 1st Defendant, that the confirmation by the 1st Defendant’s former solicitor that the 1st Defendant would not call the 2nd Defendant must have been made by mistake. I am unable to accept this suggestion. Upon the request of counsel I have granted leave for the recordings of the hearing before Master Ng to be replayed to counsel, and after listening to the recordings, counsel for both parties agreed that the said confirmation of the 1st Defendant’s former solicitor was given to Master Ng after she had already set aside the joinder. Hence by the time when the confirmation was made, it could not have been unknown to the 1st Defendant’s former solicitor that the 2nd Defendant had already been disjoined, and the 1st Defendant’s former solicitor could not have been acting under any mistake that the 2nd Defendant was still a party to the action. This being the case, the 1st Defendant’s former solicitor could not have agreed not to call the 2nd Defendant mistakenly believing that he was already made a party to the action.
32. The 2nd Defendant was subsequently rejoined as a party to the action. The 1st Defendant told me that he was advised by his former solicitor that the 2nd Defendant need not be called as he had already been joined as the 2nd Defendant and had admitted liability. This advice, if indeed given by the 1st Defendant’s former solicitor, would have been quite wrong as it must have been clear to the 1st Defendant’s legal advisers that the Plaintiff was maintaining his case that the 1st Defendant was his employer, despite the 2nd Defendant’s admission of liability. Accordingly the mere admission of liability by the 2nd Defendant would not have removed the need for the 1st Defendant to adduce evidence in support of his case, and the 2nd Defendant’s evidence is plainly material in that regard. In the absence of any corroborative evidence, I have doubt that the 1st Defendant’s former solicitors had indeed so advised him. In any event, the 1st Defendant subsequently changed his solicitors and there was ample time – if he had been minded to call the 2nd Defendant to give evidence in support of his case – for his new solicitors to apply to court to vary paragraph 7 of Master Ng’s Order of 7 March 2011 to enable him to do so. No attempt in that regard has ever been made.
33. I do not think that the 1st Defendant has given any good or convincing explanation for not calling the 2nd Defendant. It is not suggested that the 2nd Defendant could not be found, or that there was any other reason that had prevented him from being called. This Court is accordingly entitled to draw adverse inference on the issue that the 2nd Defendant could have spoken to, namely, whether the Plaintiff was employed by him at the time of the accident.
(iii) Failure to call “Ar Yuen”
34. The 1st Defendant submits that the Court is equally entitled to draw adverse inference against the Plaintiff for his failure to call Ar Yuen as a witness. It is submitted that Ar Yuen would be able to give evidence on how the Plaintiff came to be hired by Cheng Snr.
35. The Plaintiff explained in evidence that he was unable to get in touch with Ar Yuen as he had lost his telephone contact. It was also his evidence that Ar Yuen stopped contacting him a few months after the former’s injuries. The Plaintiff later found out from a friend referred to as “Ar Chi,” the person who introduced him to Ar Yuen, that Ar Yuen would be reluctant to act as a witness for him.
36. I accept partly, but not fully, the Plaintiff’s explanation. Ar Yuen is not someone close to the Plaintiff and the Plaintiff had lost contact with him for years. I accept the Plaintiff’s evidence that Ah Chi had told him that Ar Yuen was reluctant to act as a witness for him. It is understandable that the Plaintiff have felt that it might be difficult to produce Ar Yuen to give evidence for him. The Plaintiff, however, never attempted to locate Ar Yuen, nor had he sought the assistance of Ar Chi to get into contact with Ar Yuen. If he had sought Ar Chi’s assistance to contact Ar Yuen, it is not known whether he would be successful in getting into contact with Ar Yuen, or to manage to persuade him to give evidence for him.
37. Even though I only accept partly the Plaintiff’s explanation, in all the circumstances of the case, I am not disposed to allow my reservation in that regard to lead me to draw adverse inference against his case. At the end of the day, I must have regard to the whole picture and also maintain a sense of proportion. On the case of the Plaintiff, at the most Ar Yuen was merely an introducer – it was Ar Yuen who introduced the Plaintiff to Cheng Snr at a dinner gathering. In terms of the significance of the evidence that Ar Yuen may give, it is likely to be relatively minor. It is Cheng Snr, and also the 2ndDefendant, who would be able to speak directly on the question as to who employed the Plaintiff. On the evidence presently before this Court, the role of Ar Yuen, and hence what he can say about his role, is of a much more peripheral nature. I would not therefore place any significance on the failure to call him given the explanation that has been provided by the Plaintiff.
(iv) Who employed the Plaintiff?
38. The Plaintiff himself gave evidence in this regard. I find the Plaintiff an honest witness. He was an unsophisticated witness and he was straightforward and forthcoming in the way he gave his evidence. His testimony was consistent throughout and was not shaken by cross-examination.
39. The Plaintiff gave a coherent account of how Cheng Snr came to hire him to work at Shui Fung. He also gave an consistent account of his experience at the Tuen Mun construction site, from the obtaining of the Construction Industry Safety Training Certificate (or otherwise known as the “Green Card”), to how he traveled with Cheng Snr (and later the bus route that he took), and the way he assisted one Master Choi and Master Ma in doing themetal netting works.
40. I am also satisfied that the Plaintiff had travelled to Dong Guan in Mainland China to visit a factory with Cheng Snr. This is consistent with the 1st Defendant’s evidence that his supplier’s factory was in Dong Guan.
41. The Plaintiff also gave evidence on how he had helped out with depositing cheques for Shui Fung in various banks, namely, The Hongkong Shanghai Banking Corporation, Bank of China, and Bank of Communications. The 1st Defendant has given no evidence to contradict the Plaintiff’s evidence in this regard; nor has he adduced any evidence to suggest, for instance, that he did not in fact have any such accounts with these banks. While I appreciate that it may sometimes be difficult to prove a negative, the 1st Defendant did not even say in his evidence that Shui Fung had no such bank accounts. In the circumstances, I accept the Plaintiff’s submission that there was no good reason why the Plaintiff would know about the existence of these bank accounts if his evidence about helping out the 1st Defendant to deposit cheques was not truthful. Obviously if the Plaintiff was employed by the 2nd Defendant and not Shui Fung, there was no reason (and none has been suggested) why the Plaintiff would be asked to deposit cheques for Shui Fung.
42. The Plaintiff was able to give some personal details of the employees and staff who worked at Shui Fung. While this is of course far from being conclusive (on the question as to who was the employer of the Plaintiff), the fact that the Plaintiff was able to give such details does support his evidence that they were his colleagues and he stayed in the Shui Fung shop for a much longer time than what the 1st Defendant would have me to believe. In this regard, I do not consider the mistake that the Plaintiff made in mistaking the name Donna for Doris should affect my belief in his evidence.
43. Mr Cheung submitted that the Plaintiff’s evidence is beyond belief for various reasons. I do not intend to set out all the points that were taken by the 1st Defendant, but only those that potentially affect my decision. The Plaintiff did not take issue with the contents of a letter dated 8 October 2008 written by the Labour Department to the 1st Defendant informing him that the Labour Department was unable to contact the Plaintiff for investigation. The Plaintiff, in court, admitted that he did not follow up on his claim with the Labour Department. The Plaintiff’s explanation was that he was taken to a solicitor by the claims agent that he initially approached, and was informed by that solicitor that his claim was hopeless. That was why he did not initially follow up with the Labour Department for further investigation of his accident. The Plaintiff also told me about how he received different advice later and decided to pursue his claim. I accept the Plaintiff’s explanation in this regard.
44. Overall, I am satisfied that the Plaintiff’s evidence is truthful and reliable.
45. On the other hand, I am not impressed by the evidence of the 1st Defendant. I find him to be evasive and on occasion defensive. However, Iremind myself that it may be dangerous to judge a witness solely on his demeanour, and indeed it is understandable that a defendant may sometimes behave defensively as, after all, he is the person against whom charges are made. I must look at the 1st Defendant’s evidence in the round against the inherent probabilities of the matter and its consistency with other objective evidence.
46. The 1st Defendant’s evidence is that his father had no part to play in Shui Fung. As mentioned above I take the view that it is improbable that the 1st Defendant would have failed to seek his father’s advice and assistance in the business of Shui Fung, while liberally making use of his connections in the field. In view of the failure of the 1st Defendant to call his father and the Plaintiff’s evidence, I accept the Plaintiff’s evidence that Cheng Snr played a significant rolein Shui Fung’s business and it was Cheng Snr who hired him to work for Shui Fung.
47. The 1st Defendant also adduced Shui Fung’s tax returns and MPF contribution records to show that the Plaintiff was not his staff at the material time. I accept that these records did not register or record the Plaintiff as an employee of Shui Fung, but I am mindful that these documents were created after the accident and, importantly, after the 1st Defendant had denied liability for the Plaintiff’s injuries. I must therefore look at these records with caution, as they may very well be self-serving. In light of the view that I take on the Plaintiff’s evidence, the adverse inference that I am prepared to draw against the 1st Defendant’s case, and also the other evidence before me as mentioned in this Judgment, I reject the tax returns and the MPF contribution records as being probative of the 1st Defendant’s claim.
48. The 1st Defendant did not assert that the 2nd Defendant was the Plaintiff’s employer until he filed his Defence in March 2010. It is clear that he did not say so in his reply to the Labour Department on 16 November 2006 (5 months after the accident). Neither did 1st Defendant mention the 2nd Defendant in his reply to a pre-action letter sent by the Plaintiff’s solicitors on 5 August 2009 (3 years after the accident), when the pre-action letter specifically invited the 1st Defendant to state, if he contended that the Plaintiff’s injuries were caused by the fault of some third party, to provide the Plaintiff’s solicitors with “the name and address of the third party” and also “the details of the basis upon which [the 1st Defendant] claim the third party was at fault”. The explanation given by the 1st Defendant is that he had not read through the pre-action letter carefully. I do not find the explanation convincing. On the other hand, I do not think that I would give much weight to this matter as I do not think that the 1st Defendant was under any duty to provide the Plaintiff’s solicitors with the particulars sought, or to assist the Plaintiff or his solicitors in their investigation. I would refuse the invitation of Mr Simon Wong, counsel for the Plaintiff, to draw adverse inference against the 1st Defendant merely on the ground that he had failed to reply to the pre-action letter by providing the particulars of the 2nd Defendant to the Plaintiff’s solicitors and setting out at that stage the details of the basis upon which he claimed the 2nd Defendant was at fault.
49. What I do take into account is the fact that the Plaintiff had all along been alleging that the 1st Defendant was his employer, and continued to maintain that stanceeven after the 2nd Defendant had admitted liability. In itself, this speaks of the consistency of the case of the Plaintiff, whohas continued to pursue this action against the 1st Defendant despite the admission of liability by the 2nd Defendant. I accept that the Plaintiff could have entered judgment on liability against the 2nd Defendant given that the 2nd Defendant had filed a Form 16C. There is also no dispute (which Mr Cheung fairly accepts) that the Plaintiff has given notice to the Employee’s Compensation Assistance Fund Board of the present proceedings against the 2nd Defendant, and accordingly if the Plaintiffis to enter judgment against the 2nd Defendant (following his admission of liability), he would be entitled to seek payment from the Fund Board if the 2nd Defendant should fail to satisfy thejudgment. This in itself is a matter that tends to support the genuineness of the Plaintiff’s claim. Why – if the Plaintiff does not believe that he has a genuine claim against the 1st Defendant – would he go to such trouble in proving his case against the 1st Defendant when he could have easily entered judgment against the 2nd Defendant, and obtained payment from the Fund Board if the 2nd Defendant should fail to satisfy it?
50. The 1st Defendant also called Luk to give evidence. The purpose of calling Luk was apparently to show that the 2nd Defendant was in fact the Plaintiff’s employer at the material time. Luk was patently a very nervous witness and paused long and hard every time before he would give an answer to a question. Indeed at one stage he “whispered” in the witness box saying that he was very scared. Luk was very hesitant in giving his evidence, and I have not foundhistestimony to be of assistance. Much of what he attested to could have been better spoken to by the 2nd Defendant, who would have been able to speak from his own personal knowledge. For example, Luk said that the 2nd Defendant had told him that the Plaintiff was his causal worker. But Luk was unable to say how the Plaintiff was asked by the 2nd Defendant to work, and he had not witnessed the 2nd Defendant paying wages to the Plaintiff. Luk also admitted that he had not spent much time at the Shop and was unable to give any useful evidence as to Cheng Snr’s role in the business of Shui Fung. I do not think that Luk’s evidence is of much assistance to my resolution of the factual disputes in this case and I have given little weight to the same.
51. On the balance of probabilities, the evidence shows, and I find, that the Plaintiff was hired by Cheng Snr to work for Shui Fung/the 1st Defendant in the manner as described by the Plaintiff. I find that the Plaintiff was employed by Shui Fung. As it is accepted by Mr Cheung that whoever is found by this Court to be the employer of the Plaintiff would be liable for this injuries, I holdthat the 1st Defendant is liable to the Plaintiff for his claim in this action.
QUANTUM
(i) The medical evidence
52. The parties have agreed to admit into evidence the joint report of the orthopedic experts without calling the doctors, namely Dr Kong Kam Fu James and Dr Lee Po Chin, who compiled the joint report.
53. For the purpose of assessing quantum, I need not recite in detail the findings in the joint medical report. It suffices for me to highlight the following:
(1) both experts agree that as a result of the accident, the Plaintiff suffered back sprain with prolapsed intervertebral disc at L4/5, for which he received an operation of fenestration and diskectomy;
(2) the period of sick leave up to October 2007 is reasonable and appropriate;
(3) the prognosis of the Plaintiff is good;
(4) Dr Kong considers that it would be difficult for the Plaintiff to resume his pre-injury occupation as a steel installation worker and recommends that he should change to more sedentary work. On the other hand, Dr. Lee opines that the Plaintiff could return to work as a stainless steel installation worker, although with a slight impairment in work efficiency. At the same time Dr Lee opines that the job of a painting worker would also be a suitable alternative; and
(5) both experts agree that the Plaintiff is suffering from residual low back pain and Dr. Lee is of the opinion that it would occur during prolonged period of lifting.
54. Apart from the residual back pain, the Plaintiff is not suffering from any other permanent disabilities.
55. It is not seriously contested by the 1st Defendant that the Plaintiff would have difficulty in returning to his previous job (as steel installation worker). Even Dr Lee agrees that there will be a limitation to the Plaintiff’s lifting ability. The evidence before me is that a steel installation worker is required to move heavy objects, such as metal gates that could weigh as much as 30kgs. I do not think that it is realistic to expect the Plaintiff to return to his previous job. The Plaintiff suffered the injury while he was moving some heavy objects. It would be wholly unreasonable, given the undisputed impairment of his lifting ability, to expect him to go back to his previous job and run the risk of spraining his back again.
(ii) Pain suffering and loss of amenities (“PSLA”)
56. This has been agreed at $270,000 and I award this sum for PSLA.
(iii) Pre-trial loss of earnings
57. It is not disputed that the Plaintiff was earning a salary of $6,000 immediately before the accident. The Plaintiff suffered the injury on 25 July 2006 and was granted sick leave up to 15 June 2007 for a total of 10.65 months. However, despite the expiry of his sick leave in June 2007, the Plaintiff did not resume work again until April 2009 when he found a job working as a painting worker for his brother-in-law, earning on average $4,925 a month.
58. I am satisfied that the sick leave period of 10.65 month is reasonable. It is common ground that the Plaintiff is entitled to loss of earnings during the sick leave period.
59. No reason has been suggested for the Plaintiff’s failure to resume work after the sick leave period expired in June 2007. However, I agree that it would be reasonable to allow a 3-month period to the Plaintiff as the time required for finding employment after his sick leave expired. Accordingly,compensation should be given from 25 July 2006 to 15 September 2007 for a total of 13.65 months. Taking into account the benefit of the 5% Mandatory Provident Fund that the Plaintiff would otherwise have received, the Plaintiff’s loss of earnings during the sick leave period may be calculated as follows:
(6) $6,000 x 13.65 months x 1.05 = $85,995
60. From mid-September 2007 onwards, however,I think I must proceed on the basis that the Plaintiff should have been working and account must be taken of what he would have earned if he had resumed working from that time onwards. The point of contention here is the amount that the Plaintiff ought to have made if he had resumed work from mid-September 2007 onwards. The Plaintiff suggested $4,925 as a reasonable sum,being the monthly salary that he was able to earnwhen he was subsequently employed as a painting worker. On the other hand, the 1st Defendant suggested that the sum of $5,824 should be adopted,basing on thestatutory minimum wage at $28 per hour ($28 per hour x 8 hours per day x 26 days per month = $5,824 per month). In essence, the submissionof the 1st Defendant was that the Plaintiff failed to mitigate his loss, and in computing what the Plaintiff would have earned if he had acted reasonably to mitigate his loss, it is legitimate to assume that the Plaintiff would have worked 26 days a month, 8 hours a day, and earned the statutory minimum wage at $28 per hour. This formulation was adopted by Master Pang in Ha Ka Hei v Décor One Design & Engineering (unrep) HCPI 105/2010, 17 June 2011.
61. I am unable to accept the 1st Defendant’s argument insofar as the same is based on the Minimum Wage Ordinance (Cap 608). Thematerial provisions in the Minimum Wage Ordinance only came into force on 1 May 2011 (sections 1, 2 and 16, Part 3 and Schedule 4 came into operation on 12 November 2010). Plainly in assessing what the Plaintiff would have earned, the Ordinance can have no relevance to the time period before it came into force. Indeed even after theOrdinance has come into force, I do not see how the same could have any relevance to the present case: there is no question here of the Plaintiff earning less than the minimum age per hour. The relatively low income that the Plaintiff earned as a painting worker was caused by the fact that there were not enough painting jobs for the Plaintiff to work on: apart from the months of July, August and September and during Christmas time, the Plaintiff only worked for about 10 odd days (from between 8-10 days to 15-16 days) per month. Hence the reason for his earning on average $4,925 per month has absolutely nothing to do with any question of minimum wage at all.
62. The burden of showing that the Plaintiff had failed to mitigate rests with the 1st Defendant. There being no evidence to show that other jobs were available to the Plaintiff, the 1st Defendant had failed to discharge his burden. As observed by the Court in Chan Tak Chi v Wong Siu Tao [1998] 4 HKC 16:
“In Lau Wing Shing v Ching Fat Mechanical Works Co [1987] 2 HKC 180, at 184H and 185A, it was held that
‘The condition of the labour market was not a matter of ‘notorious’ fact which a judge was able to rely on without further proof. There being on evidence that the plaintiff could have obtained a job as a watchman, the judge could not apply his own knowledge of the conditions of the labour market to find that the plaintiff could have obtained such work.’ [see headnote at 180H]
The defence bears the onus of adducing evidence of availability of such jobs, such as calling the Labour Department’s officers, in order to establish failure on the part of the plaintiff to take reasonable steps to mitigate his loss.
In light of the plaintiff’s evidence and in the absence of evidence to the contrary on the availability of suitable jobs for the plaintiff, the defence has failed to establish on balance that the plaintiff failed to take reasonable steps to mitigate his loss.”
63. In my judgment, there being no evidence to show that there were other jobs available to the Plaintiff, it is reasonable to take $4,925 as the earningthat the Plaintiff would have earned aftermid-September 2007. I will also take into account the fact that the Plaintiff had worked at the Sik Sik Yuen in February 2008 for one month earning a salary of $6,560.
64. The Plaintiff’s case is that but for the accident, he would have become an installation master after working for the 1st Defendant for 2 years (i.e. by March 2008), and he would have received a raise in income when he became an installation master. The Plaintiff further said that he wouldhave returned to his previous job as a delivery worker earning $18,000 per month if he could not become an installation master earning just as much by that time. The Plaintiff therefore submitted that the sum of $18,000 should be used as the figure for what he should have been earning from March 2008 onwards. The figure of $18,000 was actually arrived at by adding together the income earned by the Plaintiff from a day-time job and a night-time job, which he did prior to joining Shui Fung. His monthly income from his day-time and night-time job was $13,800 and $4,200 respectively.
65. The 1st Defendant challenge to the Plaintiff’s casewas directed against the figure of $18,000. The 1st Defendant suggested that $8,500 should be an appropriate figure. This is the average salary of the Plaintiff’s day-time job over the 12 months immediately before he joined Shui Fung.
66. I am of the view that the figure of $8,500 suggested by the 1st Defendant is not realistic. The evidence shows that the Plaintiff worked progressively more in the 12 months before he joined Shui Fung, and his average salary in the last 6 months before joining Shui Fung was $12,500 per month.
67. As to the income earned by the Plaintiff from his night-time job, I am unable to see why the same should be included as part of the Plaintiff’s loss recoverable against the 1st Defendant. Mr Wong was unable to explain why the Plaintiff could not, after the accident, find a similar night time job and earn a similar income. In fact, Mr Wong conceded that the Plaintiff could have done so. I would therefore not take into account the income from the night-time job in my assessment of quantum.
68. I will adopt the figure of $12,500 as representing the amount of income that the Plaintiff would have earned if he had not met the accident. For reasons that I have already outlined above, from 1 March 2008 to 31 January 2012, the Plaintiff’s average monthly earnings are to be taken as $4,925. Since 31 January 2012, the Plaintiff has received a salary raise and was able to earn an average monthly income of $6,350. This figure will be used for calculating his loss of income up to the date of the trial on 16 October 2012.
69. The award for pre-trial loss of earnings is as follows:
From 25 July 2006 to 15 September 2007 for 13.65 months:
$6,000 x 13.65 x 1.05 = $85,995.00
From 16 September 2007 to end of February 2008 for 5.5 months:
($6,000 - $4,925) x 5.5 x 1.05 – ($6,560 - $4,925) = $4,573.12
From 1 March 2008 to 31 January 2012 for 47 months:
($12,500 - $4,925) x 47 x 1.05 = 373,826.25
From 1 February 2012 to 16 October 2012 for 8.5 months:
($12,500 - $6,350) x 8.5 x 1.05 = $54,888.75
Total Pre-trial loss of earnings: $519,283.12
(iv) Future loss of earnings
70. There is no dispute that the same multiplicand immediately before this trial should be used to calculate the Plaintiff’s future loss of earnings (i.e. $12,500 - $6,350 = $6,150). It is also agreed between the parties that a multiplier of 15 is appropriate.
71. The award for future loss of earnings is as follows:
($12,500 - $6,350) x 12 x 15 x 1.05 = 1,162,350
(v) Loss of earning capacity
72. The Plaintiff claims the sum of $150,000 for loss of earning capacity. The 1stDefendant, on the other hand, suggested that the sum of $43,680 is an appropriate sum – adopting in this regard the formula employed by Sakhrani J in Gurung Tiki Maya v Shum Shing Cheung (unrep) HCPI 168/2008, 20 February 2009 (i.e. half a month of salary multiplied by the multiplier).
73. I am quite unable to agree with either counsel on this head of damages. In Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, the Court of Appeal gave clear guidance onthe proper approach to be adoptedfor loss of earning capacity. In that case, Keith JA, giving the judgment of the court, reiterated the basis for an award of damages for loss of earning capacity. Citing the Privy Council’s decision (given by Lord Faser of Tullybelton) in Chan Wai Tong v Li Ping Sum [1985] HKLR 176 at 183B-D, it was pointed out that an award under this head was intended:
“… to cover risk, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk – see Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at 140, where Browne LJ dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment … Evidence will also be generally required in order to show how far the claimant’s earning capacity would be adversely affected by his disability.”
74. Keith JA went on, at 312D-G, to adopt the test given by Browne LJ in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at 142A-C:
“The consideration of this head of damages should be made in two stages. (1) Is there a ‘substantial’ or ‘real’ risk that a plaintiff will lose his present job at some time before the estimated end of his working life? (2) If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materializes, having regard to the degree of the risk, the time when it may materialize, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.”
75. There is no evidence before this Court that there is any “substantial” or “real” risk that the Plaintiff will lose his present employment as a painting worker. Even if I am prepared to accept that there is such a risk, I am not satisfied that there is any evidence that the Plaintiff will be prejudiced or disadvantaged in the labour market in finding a similar job (i.e. one that does not required prolonged heavy lifting). The fact that his injury prevents him from lifting heavy loads does not, in my view, prejudice him from finding other painting, or similar, jobs, should he lose his present employment. In any event, no evidence at all has been adduced by the Plaintiff to support his claim for loss of earning capacity.
76. For reasons given above, I make no award for loss of earning capacity.
(vi) Miscellaneous Special Damages
77. These have been agreed at $12,836.
CONCLUSION
78. The total award of damages is as follows:
| PSLA |
$270,000 |
| Pre-trial loss of earnings |
$519,283.12 |
| Future loss of earnings |
$1,162,350 |
| Loss of earning capacity |
no award |
| Miscellaneous special damages |
$12,836 |
| Total |
$1,964,469.12 |
79. I give judgment to the Plaintiff in the sum of $1,964,469.12.
80. I award interest on PSLA at 2% per annum from the date of the writ to judgment, and interest on pre-trial loss of earnings and special damages at half judgment rate from the date of the accident on 25 July 2006 to judgment.
81. I also make an order nisi that the 1st Defendant pays the Plaintiff’s costs of the action. The Plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.
82. As regards the 2nd Defendant, Mr Wong has informed me that if I find the 1st Defendant liable, he would not seek judgment against the 2nd Defendant. The 2nd Defendant has not filed any witness statement nor did he attend the trial. In the circumstances, no order as to costs is madeagainst the 2nd Defendant.
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(H Wong, SC)
Recorder of the Court of First Instance
of the High Court |
Mr Simon Wong, instructed by Messrs Christopher K Y Wong, for the Plaintiff
Mr Albert Cheung, instructed by Messrs Lim & Lok for the 1st Defendant
The 2nd Defendant (Yeung Tung Kee, Paul) is absent
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