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DCEC 1592/2010
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO. 1592 OF 2010
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BETWEEN
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LO YIU LAM
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Applicant |
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and
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FAI SHING CONTAINER TRANSPORT COMPANY LIMITED formerly trading as FREIGHT CONTAINER TRANSPORTATION CO.
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1st Respondent |
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TSANG YEE KONG (曾意光)
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2nd Respondent |
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Coram : Deputy District Judge Kent Yee in Court
Dates of hearing : 23, 28, 29 December 2011 & 13 January 2012
Date of handing down Judgment : 29 February 2012
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JUDGMENT
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Background
1. The applicant claims to be an employee of the 1st respondent and/or the 2nd respondent when he met with an accident on 27 May 2010 at around 3:15 p.m. at a scrap yard at Tap Shek Kok, Tuen Mun, New Territories (“the Yard”). Ms Tsang Kit Ling (“Ling”) who is the 2nd respondent’s younger sister asked the applicant to deliver a container from River Trade Terminal in Tuen Mun to the Yard by a container truck bearing registration number KS2452 (“the Truck”). The applicant did so. When another worker was unloading the goods from the container with a forklift, the folklift suddenly rolled over the right sole of the applicant. The applicant suffered foot injuries with bruises and gross swelling of the right mid-foot.
2. The applicant claims that subsequent to the accident, he received a document entitled Driver Wage Receipt (司機糧單) (“the Receipt”) bearing the letterhead of 1st respondent when he was paid a sum of HK$4,653 on 18 June 2010.
3. The applicant commenced these proceedings against the 1st respondent only on 30 December 2010. The Answer filed by the 1st respondent dated 28 March 2011 contained nothing but non-admissions and bare denials. The 2nd respondent filed his witness statement dated 25 May 2011 on behalf of the 1st respondent and there he asserted that a partnership relationship subsisted between the applicant and the 2nd respondent at the time of the accident. The applicant then joined the 2nd respondent pursuant to the Order of H.H. Judge Mimmie Chan dated 30 August 2011. The Answer filed by the 2nd respondent on 27 September 2011 likewise contained nothing but non-admissions and bare denials despite the allegations previously made in his witness statement.
4. The details of the accident are not at issue. Simply put, the defence case of the 1st respondent is that it denies any relationship whatsoever with the applicant whilst the 2nd respondent claims that the applicant was merely his business partner at the time of the accident.
5. As regards quantum, the applicant was granted sick leave from 3 June 2010 to 10 June 2010 and from 17 June 2010 to 27 September 2010. The Employees’ Compensation (Ordinary Assessment) Board (“the Board”) first assessed the applicant’s loss of earning capacity permanently caused by the injury at 1% by a certificate of assessment dated 4 April 2011. By a certificate of review of assessment dated 2 November 2011, the Board revised its assessment to be 1.5%. Before the revised assessment, the applicant filed a notice of appeal pursuant to section 18 of the Employees’ Compensation Ordinance, Cap. 282 (“ECO”). Ms Leung, counsel for the applicant, urged this court to apply the well-known Paper Mills formula as laid down in Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HKLR 556 and subsequently modified in Lui Kwong Yan v Shui Hing Decoration Works & Anor. [1993] 1 HKLR 168.
6. Ms Chan, counsel for the 1st respondent and Mr Wong, counsel for the 2nd respondent, at their respective closing submissions, indicated that the respondents had no quarrel with the applicant about the quantum of awards to be granted to the applicant. They merely objected to liability. Be that as it may, this court still has to decide whether to apply the Paper Mills formula if it is found that the 1st respondent and/or the 2nd respondent are liable to the applicant under the ECO.
Issues to be determined
7. Insofar as liability is concerned, the parties identified the following main issues in this application:
i. Was the applicant was an employee at the time of the accident?
ii. If so, who was his employer? and
iii. Was he injured in the course of his employment?
Applicant’s case and evidence
Applicant
8. The applicant was 59 years old at the time of the accident. He is married with three children. He received junior secondary school education. He is a driver by occupation and has over 20 years’ experience in driving trucks and containers. On or about 10 May 2010, his ex-colleague Mr Leung Kwok Chuen (“Leung”) told him that someone was looking for a driver and if the applicant was interested, he should call one Mr Tsang, the 2nd respondent. The applicant did so and talked to the 2nd respondent over the phone. The 2nd respondent told him to call his sister, namely, Ling for details as he was then engaged in his work. The applicant called Ling and Ling told him to attend a job interview on 17 May 2010. The job interview was to take place at Room B, 5/F., On Fook Industrial Building, 41 Kwai Fung Crescent, Kwai Chung, New Territories (“the Office”).
9. On 17 May 2010, the applicant attended the interview at the Office. He noticed that the Office was actually the place of operation of a company named “力士貨櫃拖運有限公司” “Lik Si” as shown in the signboard outside the door. Ling told the applicant in the presence of one Mr Li Chee Kuen (“Li”) that Li was the boss of Lik Si and the 2nd respondent rented the Office from Li. The applicant filled a form relating to his personal data. Ling said she helped the 2nd respondent in his local container delivery business. Ling explained to the applicant that his wages would be calculated on a job by job basis. There were two major kinds of work. First, he might be required to deliver a container with the Truck and for each of such transshipments, he would be paid HK$100. Second, he might be required to go to a warehouse to unload goods from a container and then return the emptied container to a specified container yard. For every such jobs, which were commonly known in the trade as “CY container”, he would be paid HK$250. The Truck would be provided to him and all costs and expenditure including petroleum costs, entrance fees, tunnel fees and traffic tickets penalty would be borne by “the company”.
10. The applicant was not told the exact identity of his employer. He just knew that he worked for the business of the 2nd respondent but he had no idea as to how exactly and under what business name it was carried on.
11. The applicant then started working on 18 May 2010. He was given HK$1,500 by Ling to cover miscellaneous charges to be paid when he performed delivery jobs with the Truck for the business of the 2nd respondent. Such jobs were assigned to him by Ling over the phone on the 9 working days from 18 May 2010 to 27 May 2010, i.e. the date of the accident.
12. All the jobs that the applicant did for the 2nd respondent were tabulated in a 3-page document (“the Work Table”). The applicant filled in the details of such jobs such as the clients’ names and those charges paid on a daily basis. There was a column entitled “For company use only” for the calculation of wages payable to the applicant. The last entry in the Work Table related to the job in which the applicant sustained injuries. The client’s name recorded was Mr Lau and it was marked “cash receipt” in the sum of HK$800. A phone number “95359370” which was Mr Lau’s number was also recorded.
13. On 27 May 2010, the applicant was assigned two “CY” containers jobs by Ling. When he finished the second job at Lung Kwu Tan (龍鼓灘), he was approached by a person known as Mr Lau. Mr Lau asked if he could deliver a container to a scrap site nearby. The applicant then called Ling and asked Mr Lau to talk to Ling direct. After some discussion between Mr Lau and Ling, Ling instructed the applicant over the phone to perform the delivery job for Mr Lau.
14. Therefore, the applicant delivered a container to the Yard. He reached the Yard at about 2:30 p.m. and a male called Ah Lung instructed an Asian worker to unload the goods from the container with a forklift. The accident took place when the applicant went over to check the work progress and his right foot was hit by the forklift.
15. The applicant called Ling immediately after the accident. According to the record of PCCW, the applicant called Ling at 3:40 p.m.. The applicant was sent to the casualty ward of Tuen Mun Hospital and Ling went to see the applicant in the hospital. She told the applicant not to report the accident to any authorities as he was not insured. She assured the applicant that he would be duly compensated for his sick leave and medical expenses. Ling drove the applicant home after his treatment on that day.
16. In early June 2010, the 2nd respondent called the applicant and enquired about his physical conditions and when he could resume work. The applicant told him that it would take some time to have a total recovery of his foot. The 2nd respondent indicated that he was in need of a driver to work for him and so the applicant suggested that he should introduce his friend Law Him Shun (“Law”) to the 2nd respondent to be his replacement driver. The 2nd respondent agreed.
17. A few days later, the applicant together with Law met the 2nd respondent in Tsing Yi. It was the first time when the applicant met the 2nd respondent. The 2nd respondent agreed to employ Law and Law would be remunerated in similar terms.
18. On 12 June 2010, the 2nd respondent asked the applicant to see him in Kwai Fong to discuss compensation matters. The 2nd respondent gave him HK$3,000 in cash for his medical expenses and promised the applicant that he would be remunerated at a daily rate of HK$300 until he could resume work.
19. On 18 June 2010, Ling called the applicant to go to the Office. There, Ling gave the applicant a sum of HK$4,653 as his wages from 18 May to 27 May 2010 together with the Receipt. The applicant signed on the Receipt.
20. The applicant was very unhappy that he was not paid the daily wages during his sick leave period as promised by the 2nd respondent. He went to the Labour Department one or two hours later and filed a notice of his injury in the prescribed form (“the Notice”). In the Notice, the applicant stated the Chinese name of his employer to be “輝騰貨櫃運輸公司 ” with the address of the Office.
Leung and Law
21. Both Leung and Law testified for the applicant. Shortly stated, their evidence was to the following effect. Leung came to know the 2nd respondent in 2005 or 2006. He once worked for him as a driver travelling to and fro Hong Kong and the Mainland. He met the 2nd respondent some time in May 2010 and the 2nd respondent asked him to look for a driver for his business, which was supervised by Ling. Leung agreed and knowing that the applicant was looking for a job, Leung gave him the phone number of the 2nd respondent.
22. Law said that in June 2010, he was unemployed. The applicant approached him and asked him whether he could work as a replacement driver on a temporary basis in his stead. He knew that the applicant was injured during work. He agreed and the applicant took him to meet his employer, i.e., the 2nd respondent in Tsing Yi. The 2nd respondent told him that he would be remunerated in similar terms, namely, HK$100 for each transshipment and HK$250 for each “CY” container. All expenses and charges would be borne by his company. The 2nd respondent told him that he himself had to work as a driver and so all the work arrangement was to be handled by Ling. He then took Law to a car park in Tuen Mun and handed over the key to a truck with registration number PB8291. Law then thought the truck belonged to the 2nd respondent. Law started working right away.
23. Law only worked for the 2nd respondent for 6 days. He filled in a similar work record as instructed by Ling and from the record, it can be seen that in fact he worked from 1 June 2010 to 5 June 2010.
Leung Pui Ting Patty (“Patty Leung”)
24. Patty Leung is a shareholder of the 1st respondent presently holding 99 shares in the 1st respondent. The remaining 1 share is held by Li. Patty Leung and Li are the directors of the 1st respondent. Patty Leung claimed to be in charge of the business operation of the 1st respondent.
25. From the records filed with the Inland Revenue Department relating to the 1st respondent, the following information can be discerned. It was incorporated in August 1996 and its address was Mezz Floor, Mai Fung Building, 7 Yan Fong Street, Kwai Fong, New Territories (“the Address”). Its Chinese trade name was “輝成貨櫃運輸公司”. In July 1999, the 1st respondent started its branch business operated under the trade name “Freight Container Transportation Co.” and its Chinese trade name was “暉騰貨櫃運輸公司 ”. It was operated at the Address until 2001 when it was moved to Room 703, Premier Centre, Lai Chi Kok, Kowloon. In 2003, it was moved to Room 2, 10/F., Kwai Fong Commercial Centre, Kwai Fong. On 10 July 2006, it ceased business.
26. Patty Leung explained that it was her husband who set up an unlimited company to trade under the trade name of “輝成貨櫃運輸公司” in 1994, which was the predecessor of the 1st respondent. Her husband is the younger brother of the 2nd respondent. Due to the drop in business and the debts of the 1st respondent, the 1st respondent ceased operation in 2006 and sold all the machinery and assets to pay its debts and employees. Since the 1st respondent was set up by her husband and her, it had certain emotional value to both of them and they had no intention to dissolve the 1st respondent though it had no business operation.
27. After its cessation of business, the 1st respondent moved to the Office. By her husband, Patty Leung was transferred 79 shares in the 1st respondent whilst Li was transferred 1 share on 25 September 2007. Patty Leung and Li were friends having known each other for a long time.
28. Patty Leung knew the business of the 2nd respondent but maintained that her business was operated independently from the 2nd respondent’s business. She did not know that the 2nd respondent also operated his business at the Office. She rarely talked with the 2nd respondent about work and they just met each other in family gatherings.
29. Patty Leung further explained that after the 1st respondent ceased business, all the documents and the computers of the 1st respondent were placed in the Office on a temporary basis. She finally sold the computers of the 1st respondent in 2009.
30. As regards the Receipt, Patty Leung denied having issued or authorised anyone to issue the same to the applicant. She explained that the Receipt was printed on the usual payroll slip of the 1st respondent with a software program purchased from a salesperson at the start of the 1st respondent’s business. She understood that the software program was very popular in the trade for issuing payroll slips to drivers. She was interested in the software program, which produced payroll slips with a clear and orderly presentation of all the essential details.
31. When Patty Leung sold the computers of the 1st respondent, it did not cross her mind that she had to delete the data of the 1st respondent including those saved with the software program. Neither her husband nor she knew much about computers.
32. When Patty Leung received the Application in December 2010, she was shocked and neither her husband nor she knew who the applicant was. She then discussed the matter with the 2nd respondent a few days later. The 2nd respondent told her that the applicant was his business partner. She related the same to her solicitors before she filed her Answer. Her Answer said nothing about this nevertheless.
33. When she filed her witness statement, she asked the 2nd respondent to file his witness statement as well, expecting him to testify for the 1st respondent.
The 2nd respondent
34. The 2nd respondent was a self-employed driver and he travelled frequently between Hong Kong and the Mainland. In January 2010, he told Leung, his friend, that he was looking for a business partner. Through the introduction of Leung, he came to know the applicant. They had a telephone conversation but nothing was agreed.
35. In or about April 2010, Mr Choi Ping Ping (“Choi”) who was the owner of the Truck told the 2nd respondent that due to his poor health, he could no longer work with the Truck. Thus, he had difficulties in making money to repay the mortgage of the Truck. He wanted to rent the Truck out to raise money. The 2nd respondent was interested.
36. The 2nd respondent recalled that the applicant had run delivery business himself with a few trucks registered under his name. He found the applicant to be a possible partner. He wished to form a partnership with the applicant with the Truck to be rented from Choi. He then called the applicant.
37. The 2nd respondent and the applicant met for the first time on 15 May 2010 and they entered into an oral agreement to form a partnership. The applicant was responsible for driving the Truck to carry out the orders of the partnership. If the 2nd respondent received an order, he would telephone the applicant and tell him to go to a container yard to collect a purchase order at a designated mailbox. Then the applicant had to deliver a container pursuant to the purchase order. After delivery, the applicant had to inform the 2nd respondent by phone and the 2nd respondent would collect delivery charge from the payee stated in the purchase order.
38. In view of the fact that the applicant had to provide his labour to the partnership business, the applicant and the 2nd respondent agreed that the applicant was entitled to a commission of HK$100 for each transshipment and a commission of HK$250 for each “CY” container in addition to his share of the net profit. These commissions were first to be deducted from the total income. The total income, after deducting all other charges therefrom and the said commissions should be equally shared between the 2nd respondent and the applicant.
39. The 2nd respondent denied that Ling interviewed the applicant on 17 May 2010. He explained that the applicant had anxiously asked for a meeting with him to discuss the details of the partnership but he was not available. Therefore, he requested Ling to arrange a meeting with the applicant so as to pacify him.
40. Before the applicant started working for the partnership, the 2nd respondent through Ling gave the applicant HK$1,500 to pay for the necessary charges in advance. The applicant told him that he did not have any money to pay upfront and so the 2nd respondent paid the said sum first.
41. On 27 May 2010, the 2nd respondent received a call from the applicant and was informed of the accident. The applicant told him that the applicant could not drive for a considerable period of time. Thus, he decided to return the Truck to Choi. Choi only would charge him a month’s rent of the Truck.
42. The 2nd respondent agreed that he met the applicant on 12 June 2010 and he gave HK$3,000 to the applicant. He said that the applicant had told him that he had financial difficulties. The sum was hence given to the applicant as advancement and would be taken into account when the partnership account was to be settled. The 2nd respondent denied having promised to pay the applicant any daily wages of HK$300.
43. The 2nd respondent agreed that he had paid the applicant HK$5,800 in cash through Ling but it was the applicant’s commission. He denied having asked anyone to issue the Receipt to the applicant and he did not know how the applicant had the Receipt in his possession.
44. The 2nd respondent agreed that he met Law in June 2010 and the applicant and the 2nd respondent agreed to employ Law on a short-term basis pending the recovery of the applicant. However, Law told him that he was not confident in driving the Truck having stopped driving large vehicles for a few years. The 2nd respondent recalled that his younger brother’s company (俏嬰寶國際有限公司) had an older truck and the company was recruiting a driver. Then the 2nd respondent arranged Law to work for the said company so as to familiarize himself with driving a truck. Law subsequently worked a few days only and terminated the employment with the said company.
45. Lastly, the 2nd respondent stated that the total turnover of the partnership was HK$28,850. After deducting various expenses in the total sum of HK$11,494.23 and the commission already given to the applicant, the net profit would be HK$11,155.77 only and the applicant’s share would be HK$5,577.86. He said he had called the applicant to arrange payment of the applicant’s share of the profit but the applicant was just too angry and hanged up. Thus, the applicant’s share of the profit had not yet been released to him.
Ling
46. Ling was the witness of the 2nd respondent. She claimed to be a housewife and not involved in any business. Every now and then she would drop by the Office to chat with Li. She would use the computers of Lik Si to get online. She was coy about her relationship with Li though in re-examination she admitted Li was her boyfriend and in his closing submission, Mr Wong told this court that Li was a married man.
47. As such Ling denied doing any business at the Office on behalf of the 2nd respondent. The 2nd respondent often worked in the Mainland and sometimes she would help him collect documents at the Office. The 2nd respondent used the Office as his correspondence address in Hong Kong for his business.
48. Ling denied having a job interview with the applicant at the Office. She claimed that she met the applicant so as to pacify him, knowing that he had tried hard to see the 2nd respondent to discuss business but in vain. She told the applicant to meet at the Office just because on that day she had to collect a document there for the 2nd respondent. She denied having told the applicant that the 2nd respondent rented the Office for his business.
49. In the evening of 26 May 2010, Ling learnt from the 2nd respondent over the phone that on the following day the applicant had only two orders to fulfill. Thus, when the applicant called her on 27 May 2010 after completion of the two orders and asked if there were any further orders, she told him that there was none. She denied having talked with Mr Lau. Ling said after the commencement of these proceedings, she called Mr Lau at the number appearing at the Work Table. Mr Lau told her that he just happened to be at the Yard and he knew that some one wanted a delivery. He then told the applicant and the applicant agreed to take on the job on his own account. No explanation was given as to why Mr Lau did not testify for the respondents.
50. After the accident, Ling went to the hospital and saw the applicant. She claimed that the doctor asked if the applicant needed sick leave and the applicant said he required no sick leave.
51. She further denied having issued the Receipt to the applicant. She recalled having paid HK$5,800 to the applicant as commission at the Office so as to ease his financial concerns.
52. She stressed that she had all along been a message box for the 2nd respondent as he was not easily accessible when he worked in the Mainland. He would leave messages with Ling for her to pass onto the applicant. Ling did the same job for Law too.
Analysis and findings
53. Mr Wong reminded this court that the burden was on the applicant to prove that the relationship between the applicant and the respondents was one of employment and not partnership on balance of probabilities and if the applicant’s evidence was not acceptable, the evidence of the respondents did not really matter.
54. The applicant was subject to the vigorous cross-examination by Ms Chan and Mr Wong. Both counsel literally left no stone unturned and some unsatisfactory aspects of the evidence of the applicant surfaced in the result. That said, overall speaking, the applicant struck me as a straightforward person though he was patently less than prudent with details. For matters he thought of lesser importance, he easily gave answers without carefully thinking them through. He readily accepted the inaccuracies of his evidence when confronted by Mr Wong. Yet, the spine of the applicant’s case was supported by documentary evidence, in particular, the Receipt and the Work Table, which I had no hesitation to accept to be true. His witness, Leung and Law, also impressed me as truthful witnesses.
55. In stark contrast, both Ling and the 2nd respondent were untruthful and evasive witnesses in my mind. They could hardly give direct answers. Instead, they were prone to long speeches to fudge the issues. I prefer the evidence adduced by the applicant to that of Ling and the 2nd respondent wherever they are in conflict.
56. The evidence of Patty Leung was largely uncontroversial and was supported by documentary evidence. Though she should have been more careful in dealing with and/or disposing of the 1st respondent’s properties including its computers after its cessation of business, I do not think any liability should attach to the 1st respondent on this basis. I accept that the Receipt was not issued in the course of its business and the 1st respondent did not authorize anyone to issue the same.
57. In regard to the Receipt, Ms Chan and Mr Wong made the following complaints:
a. No original copy was produced and the name of the 1st respondent was not fully shown;
b. The address was not related to the Office (albeit it was the old address of the 1st respondent) and the applicant should have raised queries;
c. The applicant signed as the approving party (核準人) and not as the recipient (簽收人) despite his experience in handling this kind of documents；
d. The 1st respondent did not sign on the Receipt at all;
e. The applicant in his own case was entitled to HK$5,800 but the amount stated in the Receipt was only HK$5,640.
58. I accept that these are all valid criticisms but they do not damage the integrity of the document. As said, the applicant did not really care about details and given his personal background I can well understand why he did not insist on everything being right in the Receipt. I believe that Ling issued the Receipt to the applicant on behalf of the 2nd respondent. I cannot believe that it was a fabricated document produced by the applicant. Patty Leung accepted that the document bore the same format of those issued by the 1st respondent. It also bore the old address of the 1st respondent where its business was transacted. There was no conceivable reason why the applicant should find out so many details about the 1st respondent whilst being unaware that it had long ceased business and concoct the document in order to make a false claim against the 1st respondent.
59. Having accepted the Receipt is a genuine document issued by Ling on behalf of the 2nd respondent, I also accept that the 2nd respondent was aware of the sum of HK$800 received from Mr Lau by the applicant. The said sum was included by Ling and hence the 2nd respondent in the sum of HK$2,300 being “company miscellaneous expense paid in advance”, as explained by the applicant. The 2nd respondent clearly took into account the said sum when settling the account with the applicant. I cannot accept Mr Wong’s submission that the applicant had not informed the 2nd respondent of Mr Lau’s order and had no intention to give the said sum to the 2nd respondent. The unpleaded case of the 2nd respondent that the applicant did not work in the course of employment could not be made out on the evidence. I would also make it clear that I accept the applicant’s evidence as to how Mr Lau’s order was obtained and performed and reject flatly the evidence of Ling in this regard.
60. I also reject the submission that the said sum was not mentioned in the witness statements of the applicant. It was mentioned in detail in paragraph 8 of the supplemental witness statement of the applicant. It was also mentioned in the Work Table.
61. I also note that in the Receipt the amount payable to the applicant was stated to be HK$4,653.00. The applicant stated that he had received HK$5,640 in his witness statement. The 2nd respondent and Ling in their respective witness statements contended that the applicant had received HK$5,800. The applicant in his oral testimony confirmed that he was actually given HK$4,653.00 only.
62. The contents of the Receipt also negate the allegation of the 2nd respondent that there was a partnership agreement. The account was made in total contradiction of the terms of the alleged partnership agreement. It was the 2nd respondent’s document and there was no reason why it did not reflect the alleged partnership agreement if it ever existed.
63. Quite apart from the Receipt, I am unable to accept the alleged partnership agreement at all. The applicant was a total stranger to the 2nd respondent. The 2nd respondent had no personal knowledge of the applicant’s financial and business background. On the 2nd respondent’s evidence, the applicant could not even raise HK$1,500 to pay for miscellaneous expenses upfront at the commencement of the partnership business whilst the 2nd respondent had a lot of work orders and needed no extra orders. There was simply no valid reason why the 2nd respondent wanted to form a partnership with a financially unsound stranger and under the alleged partnership agreement, the applicant would even earn more than he did by way of commission even though the orders were not procured by him. The whole scheme did not make commercial sense and was incredible in all the circumstances.
64. Both Ms Leung and Mr Wong referred to this court the Court of Final Appeal’s decision in Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951 for the proper approach to the question whether a person is an employee of another. The fact that I reject the alleged partnership agreement does not necessarily mean that the applicant was an employee of any of the respondents. I should still proceed to consider the totality of the evidence to determine whether the applicant was an employee at all.
65. I intend to take the 1st respondent out of the picture first. Though I do not find Patty Leung to be an honest witness, the incontrovertible evidence was that the 1st respondent ceased business in 2006, as shown by unchallenged documentary evidence. There was nothing to indicate the 1st respondent’s involvement save the Receipt. However, there was no evidence that Ling issued the Receipt with the valid authorization or consent of the 1st respondent. I find as a matter of fact that Ling issued the Receipt without the knowledge let alone authorization of the 1st respondent.
66. I accept the evidence of the applicant as to how he started working and worked for the 2nd respondent’s business from 18 May to 27 May 2010. His evidence was fully supported by the Receipt and the Work Table. He merely fulfilled the delivery orders in accordance with Ling’s instructions. He did not have any staff himself and he did not have to put in any capital. He did not have to bear any charges and/or expenses. He was paid on a job by job basis and there was no profit sharing. I have no difficulties in concluding that the applicant was an employee of the 2nd respondent and he was injured in the course of the employment with the 2nd respondent. In the result, I hold the 2nd respondent liable to compensate the applicant pursuant to the ECO.
67. Having reached the foregoing conclusion, strictly speaking, I do not need to expressly deal with the numerous creditability issues raised by Mr Wong. Suffice it to say that I have considered them all before I reached the conclusion and none of them would affect my finding that the applicant was an employee of the 2nd respondent. I accept that the applicant was not an impressive witness but he did far better than the 2nd respondent and Ling in the witness box.
68. I should merely mention the major complaint of Mr Wong. It arose from the Chinese name of the 1st respondent that the applicant put in the Notice. Mr Wong forcefully submitted that the applicant’s explanations in this regard were unsatisfactory. In the Receipt, only the English name of the 1st respondent was printed and its Chinese name was nowhere to be found. However, within the same day, the applicant managed to provide the Chinese name of the 1st respondent in the Notice. It should be noted that in fact the first character of the Chinese name in the Notice was wrong. It should be “暉” and not “輝”.
69. The applicant firstly explained that he recalled having seen a big signboard near a Caltex gas station in Kwai Chung showing an English trade name consisting of “Freight” and its Chinese name consisting of “輝騰”. Therefore, he thought that the Chinese name of the 1st respondent should start with “輝騰”too.
70. The fundamental problem with this explanation was that the factual basis was incorrect. In cross-examination, Mr Wong produced some photographs depicting the signboard in Kwai Chung. The applicant accepted that it was the signboard he had referred to but its English name printed thereon was “Fitter Logistics Co” and its Chinese name was “飛騰物流”. The applicant could not have prayed in aid the signboard.
71. Then the applicant explained that he came up with the Chinese name by his intuition. Later the applicant added that he actually had come across the Chinese name of the 1st respondent when he worked in the trade.
72. I am not at all satisfied with his answers and I should not surmise. However, I do not really think how the applicant came to know the Chinese name of the 1st respondent was material. I do not believe he went all the way to make a false claim against the 1st respondent, which on the face on it had nothing to do with the 2nd respondent, only to find that it had ceased business years ago.
Amount of compensation payable
Section 9
73. As said, the respondents do not object to the quantum claimed by the applicant. The major problem with his claim is whether this court should apply the Paper Mills formula.
74. The applicant was 58 years old at the time of the accident. For the 9 days he worked for the 2nd respondent he was entitled to HK$5,800 as his wages. His monthly earnings can therefore be projected to be HK$18,032 (HK$5,800/9 x 28 days).
75. The applicant adduced a medical report compiled by Dr Wong See Hoi to support his appeal against the assessment of the Board. His prognosis is that though the wound of the right foot had finally healed with no further discharge, the applicant is expected to have persistent edema over his right lower limb after lingering infection and in particular, after exertion, like prolonged walking, standing, driving, squatting, etc.
76. Dr Wong further opines that the applicant’s ability in driving has not been affected and he is able to resume his pre-injury work as container truck driver. However, with residual right foot dorsum pain, he is expected to have reduced work capacity and efficiency on prolonged driving. The applicant will need to take regular breaks to rest and mobilize his right foot.
77. Dr Wong assesses the percentage of whole person impairment caused by the accident to be 4-5% for residual right foot pain, scar swelling and pigmentation caused by the accident.
78. The applicant told this court that after the expiry of the sick leave, he worked for one of his old employers as a truck driver with a daily wage of HK$550.00. He normally works 26 days a month on average. The present workload is lighter.
79. The applicant also told this court that now he could only make trips covering short distances. He could only manage10-minute journeys. In the past he could drive up to an hour. He is now employed by a logistics company with a monthly income of HK$16,000.
80. I am not convinced that he could not resume his pre-injury work and could now drive only for 10 minutes. He was not a cross-border driver and he used to cover short distances in Hong Kong (less than an hour) anyway. His assertion that he could only drive for 10 minutes is not borne out by medical evidence.
81. I am thus not satisfied that there are special circumstances which justify the application of the Paper Mills formula. However, I accept the assessment of Dr Wong and consider that a 5% total loss of earning capacity should be allowed.
82. Accordingly, the amount payable under s.9 of the ECO is HK$18,032 x 48 x 5 % = HK$43,277.
Section 10
83. Ms Leung submitted that the applicant was granted a total of 118 days of sick leave. Both Ms Chan and Mr Wong did not demur. I would allow the applicant’s claim under section 10 to be: HK$18,032/28 x 118 days x 4/5 = HK$60,794
Section 10A
84. Ms Leung asked for HK$4,623 as medical expenses and hospital fees. Absent objection, I allow this sum in full.
Summary
85. The applicant’s action against the 1st respondent falls to be dismissed.
86. The total compensation payable by the 2nd respondent to the applicant is:
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(1) Section 9 |
HK$ 43,277 |
|
| |
(2) Section 10 |
HK$ 60,794 |
|
| |
(3) Section 10A |
HK$ 4,623 |
|
| |
|
HK$108,694 |
|
| |
Less : Advance payment |
HK$ 3,000 |
|
| |
|
HK$105,694 |
|
87. The applicant is entitled to interest at half judgment rate from the date of the accident to the date of judgment.
Costs
88. As between the applicant and the 2nd respondent, there is no reason why costs should not follow the event and I accordingly make an order nisi that the applicant’s costs of the action be borne by the 2nd respondent, to be taxed if not agreed, with certificate for counsel. The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.
89. As regards the costs of the 1st respondent, the 1st respondent is a successful party and it should be entitled to costs prima facie. Given my finding that the Receipt bearing the name of the 1st respondent was issued to the applicant to settle his outstanding wages, it was not unreasonable for the applicant to go after the 1st respondent in the beginning. Even after the disclosure of evidence relating to the cessation of its business in 2006, the issue as to whether the Receipt was issued with or without the authority and/or consent of the 1st respondent had to be investigated at trial. Given my finding that it was issued wrongfully by Ling on behalf of the 2nd respondent without the authorization and/or consent of the 1st respondent, it is only right that costs of the 1st respondent of this action should also be borne by the 2nd respondent, to be taxed if not agreed, with certificate for counsel. I accordingly make a costs order nisi to this effect.
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(Kent Yee)
Deputy District Judge
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Ms Christine Leung, instructed by Messrs. Szwina Pang, Edward Li & Co. (assigned by D.L.A.) for the Applicant
Ms Cathy Chan, instructed by Messrs. Peter W.K. Lo & Co. for the 1st Respondent
Mr Tim Wong, instructed by Messrs. M.C.A. Lai & Co. for the 2nd Respondent
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