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Cheung Cho Keung v Hung Kai Chun T/a Ben Hung Decoration Eng

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date07 September 2018
Neutral Citation[2018] HKDC 1069
Year2018
Judgement NumberDCEC1021/2015
Subject MatterEmployee"s Compensation Case
CourtDistrict Court (Hong Kong)
DCEC1021/2015 CHEUNG CHO KEUNG v. HUNG KAI CHUN t/a BEN HUNG DECORATION ENG

DCEC 1021/2015

[2018] HKDC 1069

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1021 OF 2015

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BETWEEN
CHEUNG CHO KEUNG Applicant
and
HUNG KAI CHUN trading as Respondent
BEN HUNG DECORATION ENG

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Before: Deputy District Judge Y C Cheuk in Court
Date of Hearing: 28 and 29 August 2018
Date of Judgment: 7 September 2018

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JDGEMENT

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Introduction

1. This is an application for employees’ compensation taken out by the applicant against the respondent pursuant to the Employees’ Compensation Ordinance (Cap 282) (the “Ordinance”).

2. The applicant was born in Hong Kong and was 47 at the date of the accident. He met the respondent in or about 1996. He worked for the respondent as a casual carpenter from time to time. Each job lasted from a few days to a few months. On each occasion, the respondent would ask the applicant if he could help on a particular job. The applicant would go if he was available. If he was doing work for someone else, however, he would tell the respondent that he could not make it.

3. When the applicant worked for the respondent, the respondent or his son would give instruction to him as to what to do. The applicant would regularly report to them. He was paid at a daily rate. If he worked overtime, he would get additional payments. If he needed to take leave, he would notify the respondent and asked for permission.

4. The respondent provided most of the major equipment. The applicant would bring along his own small tools. If the job needed to purchase materials, he would ask the respondent. If the respondent was not free to purchase them, he would do so on his behalf and the respondent would reimburse him afterwards.

5. On or about 5 December 2014, the respondent asked the applicant to renovate a flat at Tseung Kwan O. The job lasted from 5 December 2014 to the morning of 10 December 2014. In the afternoon of 10 December 2014, the respondent asked the applicant to carry out renovation works at an office building at Sheung Wan (the “Site”). The applicant’s working time was from 9:00 am to 6 pm. He was paid at $1,050 per day.

6. On 12 December 2014, the applicant was using a pneumatic gun that the respondent provided to strengthen a wooden light trough at the Site. He was working from the 3rd step of the ladder (also provided by the respondent). A nail rebounded against the wood and hit him in his right eye. The respondent was not at the Site but his son was there. He called the police and the ambulance. The applicant was taken to Queen Mary Hospital.

7. The applicant underwent various operations and medical care for his right eye. Eventually, he lost the vision of his right eye, which can now only detect brightness and darkness. He resumed some part time work since July 2015 and is now making about $10,000 per month.

8. According to the certificate of assessment (the “Certificate”) issued by the Employees’ Compensation (Ordinary Assessment) Board dated 13 November 2015:-

(1) The period of absence from duty necessary as a result of the injury is from 12 December 2014 to 15 July 2015 (ie around 7.2 months);

(2) The loss of earning capacity permanently caused by the injury is 50%.

Liability

9. The respondent disputes that the applicant was his employee.

10. The applicable legal principles are not in dispute. As held by Ribeiro PJ in Poon Chau Nam v Yim Siu Cheung 10 HKCFAR 156:-

(1) The modern approach to the question whether a person was an employee was to examine all the features of their relationship against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment. This involved a nuanced and not a mechanical approach: painting a picture from the accumulation of detail. The indicia included the degree of control exercised by the “employer”; whether the person performing the services provided his own equipment; whether he hired his own helpers; what degree of financial risk he took; what degree of responsibility for investment and management he had; and whether and how far he had an opportunity of profiting from sound management in the performance of his task (see paragraphs 9 – 18);

(2) Contracts of employment might arise on two different levels in the context of casual workers: (a) an umbrella or global contract, that is an over-arching and continuous agreement between the parties, encompassing a series of specific engagements within its span; and (b) a contract in relation to a specific engagement. The absence of a mutual obligation to supply and take up work was fatal to the existence of (a), but irrelevant to the existence of a contract of employment arising out of (b). There could be a contract of employment based on a specific engagement, regardless of the absence of any global contract (see paragraphs 23, 34-45);

(3) The Ordinance covered most class of persons in casual employment. The effect of the proviso in s 2(1) was to include within the definition of “employee” casual employment under a contract of service, provided such casual employment was for the purposes of the employer’s trade or business. Under the Ordinance, a mutual obligation to supply and take up work did not have to exist before a worker qualified as an employee. There were clearly provisions designed to operate where there was no mutual obligation, specifically s.11(2) and 11(7) (see paragraphs 26-33);

(4) It was in the nature of a casual employment that the worker may take up work wherever it can be found, with one or more employers. Such a pattern of...

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