MOHAMMAD ASHRIAF v. JABBAR ABDUL t/a JK AUTO DISMANTLING & TRADING CO

DCEC 464/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 464 OF 2012

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JUDGMENT

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Introduction

1.  This is an application by the applicant under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”) for compensation in respect of injury he sustained on 1 May 2010.

2.  It is the applicant’s case that when he sustained the injury, he was working in the course of his employment with the respondent.

3.  The respondent denies that he was the employer of the applicant.  It is his case that the applicant was employed by his customer, Mr. Saleem Khan.

Issues

4.  The issues for determination are the following:-

(1) Whether the applicant was an employee of the respondent at the time of the accident;

(2) If so, whether the personal injury by the accident did “arise out of and in the course of his employment”;

(3) If so, what is the compensation payable under sections 9, 10 and 10A of the Ordinance. 

The respondent’s late application to call witnesses

5.  Before I deal with the above issues, it is convenient for me to deal with the respondent’s application to call witnesses first.

6.  After the applicant closed his case, the respondent applied to call witnesses.  Mr Lai, counsel for the applicant, objected to the application.

7.  Mr Lai submitted that the respondent had ample time to call his witnesses but had failed to do so.  Even at the previous hearing before His Honour Judge A Lee on 27 December 2013, he did not mention to the learned Judge that he wished to call witnesses.  The applicant was led to believe that the respondent was ready for trial.  No witness statement of those witnesses was filed.  The applicant was taken by surprise.

8.  I rejected the respondent’s application for the following reasons:-

(a) the respondent was previously represented by Messrs Jal N Karbhari & Co, Solicitors.  His witness statement was prepared by that firm back in May 2013;

(b) in his statement, he did mention the names of his witnesses, namely, Mr Sarwar Ghulam, Mr Khan Muhammad Amir Baloch and Mr Saleem Khan.  Yet, no statement had been produced and filed;

(c) even as late as the previous hearing before His Honour Judge A Lee on 27 December 2013, he did not inform the learned Judge that he wanted to call witnesses at the trial;

(d) the learned Judge adjourned the trial for the sole purpose of enabling him to apply for legal aid for a 3^rd time;

(e) his late application is unfair to the applicant because:-

(i) it had taken the applicant by surprise;

(ii) no statement of those witnesses had ever been disclosed, the applicant was totally kept in the dark as to what they are going to say;

(iii) the respondent had known the evidence of the applicant and his witness.  Allowing the respondent to call additional witnesses would give him an unfair advantage and the opportunity of coaching his witnesses;

(iv) to allow the calling of additional witnesses at such late stage would prejudice a fair trial.

Whether the applicant was the employee of the respondent at the time of the accident?

9.  The applicant was born on 4 August 1946 in Pakistan.  He came to Hong Kong in 1996.  He is holding a Hong Kong Permanent Identity Card. 

10.  In January 2007, through the introduction of Irfan, who is a relative of the respondent, the applicant was employed by the respondent to work in his yard at the monthly salary of $7,000. Accommodation was provided by the respondent in the yard.

11.  Irfan was a cook, who cooked food for the 5 workers working in the yard and also for the other businessmen who were residing in the yard at a monthly fee. 

12.  The applicant’s job included the dismantling of scraped cars by cutting them into pieces, unloading of cars towed to the yard, loading of metal cut from the cars into containers and cleaning.

13.  The applicant said he was always paid by the respondent in cash. 

14.  Mr Hussain Shahid was called by the applicant.  He came to Hong Kong from Pakistan in 1987.  Since 2003, he operated his own car-towing service. 

15.  He came to know the respondent since 2000.  The respondent used to hire his service.  The cars that he towed to the responder's yard would be dealt with in two ways.  The respondent would either instruct his staff to cut the cars into pieces for resale as scrapped metal or to keep them in the yard for sale as secondhand cars.

16.  He came to know the applicant in 2007 in the respondent’s yard.  He saw the applicant working in the yard including dismantling cars and the loading and unloading of containers.  He said the applicant was not working alone.  There were 4 to 5 persons working in the yard. 

17.  After towing cars to the yard, he would stay longer to chat with the staff there.  On various occasions, the respondent asked him to tell the applicant to work harder. 

18.  The respondent came to Hong Kong in 1997.  After working for a company dealing in auto parts for a while, he set up his own company at DD114, Lot 47-48, Wang Toi Shan, Pat Heung, Yuen Long, New Territories, Hong Kong.

19.  His yard has an area of about 30,000 square feet, is comprised of 2 sections.  One section is for the sale and purchase of secondhand motor vehicles and the other section is a loading space with 2 container decks.  He rented out the space to customers for container loading.

20.  His company business includes:-

(a) sale and purchase of secondhand vehicles;

(b) providing customers with space and equipment for auto dismantling;

(c) leasing out container space to customers for the storage of containers with goods.

21.  He would enter into agreement with his customers for every container loading.  His company only provides loading facility, space and 1 labourer to facilitate the loading and unloading of container.  Under the agreement, the customer is responsible for arranging labour and paying for the costs of food and wages of labourers. 

22.  His company has only 2 employees, Mr Sarwar Ghulam, the supervisor and Mr Khan Muhammad Amir Baloch who is the labourer.  Mr Ghulam was employed on a monthly basis whereas Mr Baloch was employed on a daily basis.  Mr Baloch would be required to work in the yard when there is container loading and unloading work.

23.  When cleaning work is required after each container loading, he would hire someone to work on a daily basis. But he has never employed the applicant to work for him. 

24.  He denies that he knows Irfan. 

25.  He said at the material time, the container deck where the accident was alleged to have happened was leased to Mr Saleem Khan.  Mr Khan’s container arrived his yard on 30 April 2010 and was shipped on 7 May 2010.  Therefore, Mr Khan was his customer at the material and the only possible employer of the applicant. 

26.  The respondent said he knew the applicant personally because he always saw the applicant in the area where he worked and lived.  The applicant used to come to Kam Tin everyday. 

27.  He said the applicant only talked to him about the alleged accident after he received a letter from the Labour Department.  The applicant told him that he was injured while working in his yard and if the applicant paid him some money, he would withdraw the complaint. 

28.  In early April 2013, the respondent met the applicant again by chance.  The applicant told him that even if he lost his case, he would come to the front of the respondent's car to cause a car accident. 

29.  On balance, I accept that the applicant was employed by the respondent to work in the yard.  I reject the respondent’s claim that he was not the employer of the applicant.  My reasons are as follows.

30.  In his testimony, the applicant was able to give a lot of details of his job in the yard and what tools were used.  He was ready to correct a mistake at paragraph 7 of his witness statement.  In that paragraph, he stated that he did not have any bank account.  When he was asked by his counsel at examination-in-chief, he told this court in no uncertain terms that he did have a bank account since 2003. 

31.  Like the applicant and the respondent, Mr Shahid also came to Hong Kong from Pakistan.  He had known the respondent for a longer time than the applicant.  Business-wise, the respondent was one of his customers.  His testimony largely supported the applicant's case.  I see no reason to disbelieve his evidence.

32.  According to the respondent, his yard has an area of 30,000 square feet.  In his Business Registration dated 12 September 2009, he described his business as auto dismantling and trading.  Inevitably, manpower would be required to run his business.

33.  The respondent maintained that he had only two employees.  He had not produced any documentary evidence in support.  However, from an extract of a Mandatory Provident Fund contribution list for the period from 1 June 2001 to 30 June 2001 produced by the respondent, it shows that the respondent during that period had 4 employees.  One of them was Mr Sarwar Ghulam, who was the supervisor of the respondent at the material time.  It is consistent with the evidence of the applicant and Mr Shahid that there were 4 to 5 workers working in the yard.

34.  I find the respondent had been less than truthful in relation to the number of employees he had employed at the material time.

35.  It is the respondent’s case that the applicant was employed by his customer at the material time.  At the trial, he said the applicant was employed by Mr Saleem Khan.  He produced an agreement with Mr Khan dated 4 May 2010 and a Container Booking Acknowledgement dated 30 April 2010.

36.  However, by a letter dated 19^th of April 2011 to the Labour Department, the respondent produced a customer’s agreement alleging that the customer therein was the employer of the applicant.  As can be seen from a letter from the Labour Department to the respondent dated 29 August 2011, the respondent suggested that the employer of the applicant at the material time was Mr Manuel E. Eboh.  

37.  At the trial, the respondent relied on clause 2 of the customer's agreement with Mr Khan, which provided that “all labours charges like food, salary & relevant expenditure will be pais (paid) by party 2.”  He said, therefore, the applicant was employed by Mr Khan. 

38.  The respondent only produced an invoice issued to Mr Khan dated the 4 May 2010 for the sum of $3,500.  That was the loading fee for a 40 feet container according to the contract.  No invoice or receipt in respect of the other expenditure was produced.

39.  Both the contract and the invoice were issued 3 days after the accident.  No document or memorandum between the respondent and Mr Khan was produced confirming which one of them would have to bear the responsibilities.

40.  In his witness statement, the respondent named 3 potential witnesses, namely, Mr Ghulam, Mr Baloch and Mr Khan.  Yet, they were not called to give evidence.  He explained that he thought the matter was not that serious, therefore, it was not necessary to call them as witnesses.  In Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434, the Court of Appeal held that where a person without explanation failed to call as a witness, a person who he might reasonably be expected to call, it was open to the court or the jury as appropriate to infer that that person’s evidence would not have helped that party’s case.  Since the commencement of these proceedings, the respondent had engaged a firm of solicitors to represent him.  He had applied for legal aid thrice though without success.  This matter was not taken lightly by the respondent. Mr Ghulam is a Hong Kong resident.  He can easily be called to give evidence.  I do not accept the respondent’s explanation.  I therefore infer that their evidence would not assist the respondents’ case.

Whether the personal injury by the accident did “arise out of and in the course of his employment”?

41.  On balance, I reject the applicant’s claim that his injury was caused by an accident which arose out of and in the course of his employment by the respondent.  My reasons are as follows.

42.  The applicant described what he had done on the day of the accident on 1 May 2010.  He said that morning after some cleaning and miscellaneous work, he was instructed by the respondent to clean up the inside of a container.  It was during that process that a barrel containing acid fell from the top of a pile of motor parts.  The acid spilled onto the floor and on the foot of the applicant.  His foot was burnt by the acid.  He asked Irfan for help.  Irfan firstly took him to a clinic.  At the clinic, an ambulance was called and he was taken to Pok Oi Hospital.

43.  The respondent denied that he had any knowledge of the accident on 1 May 2010.  He said he was only told of the accident by the Labour Department.  It was only after he received the letter from the Labour Department that the applicant informed him of the accident and asked him for money.

44.  The account the applicant told this court was different from what he said in a Notification of Accident (“the report”) given to the Labour Department dated 18 October 2010.  In the report he said,

“I was loading the lorry there is some chemical drum in the lorry where the chemical drum was felling (falling) down on my both feet where fore my feet was burn, now I unable to work.”

45.  Not only the location where the accident occurred was different, the work that he was doing immediately before the accident was also different.

46.  In the report, he said the accident happened at 12:30 am on 1 May 2010.  But according to a medical report issued by Pok Oi Hospital, the applicant arrived at the hospital at 12:31 hours on 1 May 2010.

47.  I have great reservation as to whether or not the applicant was telling the truth.

48.  My doubt on the truthfulness of the applicant does not end here.

49.  In the medical report issued by Pok Oi Hospital dated 5 January 2012, it stated that the applicant attended the Accident and Emergency Department of the hospital at 12:31 hours on 1 May 2010 for being scalded by hot water 15 days ago.  He did not mention that he was on duty.  The doctor observed that there were some blisters on both feet and some of them were dry.

50.  The observation of the doctor was totally inconsistent with the allegation of the applicant.

51.  The applicant explained that when he was in the hospital, he did not talk to the doctor because he could not understand and speak Cantonese and English.  It was Irfan who talked to the doctor and Irfan did not ask him any question.

52.  According to the applicant, Irfan was the first one he asked for help soon after the accident.  Irfan should not have mistaken as to what had happened to the applicant.

53.  The doctor observed that the some of the blisters were already dried.  If the accident did happen on the day he went to the hospital, it is highly improbable if not impossible that the blisters could have been dried on the same day.

54.  The applicant’s evidence is not credible.  I am not satisfied that the applicant was injured in the course of his employment by the respondent in the way he described.

55.  As the applicant had not been truthful, I am unable to find what led to the injury to his foot.  The applicant had failed to show to my satisfaction that when he was injuried, he was doing something which was an incident of his employment or was incidental to it: Lau Kam Nui v Sau Kee Co Ltd [1998] 4 HKC 612.

Quantum

56.  For the sake of completeness, I shall proceed to assess the quantum of the applicant’s claim.

Section 9

57.  The applicant was 63 years old at the time of the accident.  His monthly salary was $7,000.  By a Certificate of Review of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board dated 9 July 2012, he was assessed 1% of loss of earning capacity permanently.  The applicant did not appeal against that assessment.

58.  The amount payable under Section 9 of the Ordinance is therefore $7,000 x 48 x 1% = $3,360.

Section 10

59.  The applicant had produced 2 sick leave certificates relating to the injury.  The first one is for 1 May 2010, the other one was for the period from the 28 to 30 September 2010.  He did not keep nor did he ask for sick leave certificate on each and every occasion.  I accept that he was temporarily incapacitated from work during that period, ie 152 days.

60.  The amount payable under Section 10 is therefore $7,000/30 x 152 days x4/5 = $28,373.

Section 10A

61.  The applicant said he had spent $800 on medical treatment which I accept as reasonable.

62.  The amount payable under Section 10A is therefore $800.

Conclusion

63.  In view of my determination at paragraph 41, I dismiss the applicant’s application.

Costs

64.  I make a costs order nisi that the applicant shall pay costs of these proceedings to the respondent.  Certificate for counsel.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.  The applicant’s own costs be taxed in accordance with Legal Aid Regulations.