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Chiu Kwok Hung Ban v Ng Fu Wing T/a Wing Kee Aquarium Eng Co And Others

Judgment Cited in Precedent Map Related
Vincent
Judgment Date01 February 2010
CourtDistrict Court (Hong Kong)
Judgement NumberDCEC887/2002
Subject MatterEmployee"s Compensation Case
DCEC000887A/2002 CHIU KWOK HUNG BAN v. NG FU WING t/a WING KEE AQUARIUM ENG CO AND OTHERS

DCEC 887/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 887 OF 2002

DCEC 317/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 317 OF 2004

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IN THE MATTER OF AN APPLICATION BETWEEN:

CHIU KWOK HUNG BAN Applicant
and
NG FU WING trading as
WING KEE AQUARIUM ENG CO		 1st Respondent
LAU PAK YIN (劉伯賢) 2nd Respondent
LEE CHI KWONG trading as
HOYOH CONSTRUCTION & DECORATION CO.		 3rd Respondent
SEEDTRON DEVELOPMENT CONSULTANTS LIMITED 4th Respondent

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(Consolidated pursuant to the Order dated 5th December 2005)

Coram: HH Judge E. Yip in Court

Dates of Hearing: 30th & 31st December, 2009 and 4th January 2010

Date of Handing Down of Judgment: 1st February 2010

_______________________

J U D G M E N T

_______________________

Background

1. The Applicant claims compensation arising out of injuries sustained in the course of his employment. There is no dispute that the 4th Respondent was the principal contractor, and the 3rd Respondent its sub-contractor of the project the Applicant was on. The 2nd Respondent was throughout the present action. Default judgment was given against him.

Issues

2. This Court has to determine the following issues:

(1) Liability: whether the Applicant was an independent contractor or the employee of which respondent(s);

(2) Quantum.

Witnesses called

3. There are 4 witnesses who give evidence:

(1) The Applicant;

(2) The 1st Respondent;

(3) The 3rd Respondent;

(4) Li Chi-kan for the 4th Respondent.

Facts not in issue

4. On 30 November 2000 at about 6:10 p.m., the Applicant, aged 33, was working as a painting worker for a renovation project (“the Project”) at a site situated at an automatic teller machine centre at Richland Gardens, Commercial Block (“the Site”). He fell from a height of 3 feet when climbing a wooden ladder. He sustained injuries as a result.

5. The 4th Respondent was the principal contractor, and the 3rd Respondent its sub-contractor, of the Project. The 3rd Respondent sub-contracted the Project to the 2nd Respondent.

6. The 1st Respondent’s line of business was only for the construction and maintenance of fish tanks. It did not any take part in the Project. It did not have any projects in Richland Gardens. Upon the alleged representation of his insurance agent and the 2nd Respondent, he filled out Form 2 to the Labour Department acknowledging to be the Applicant’s employer.

Facts in issue

7. The 4th Respondent says that usually such projects, like the Project, would be practically completed by 4 p.m. It was unlikely to have anyone still working at the Site at, according to the Applicant’s evidence, 6:10 p.m. I do not find such bare allegation strong enough to challenge the Applicant’s evidence.

8. The 4th Respondent says that there had been a standing reminder, albeit oral, to the sub-contractor against sub-contracting out. The 3rd Respondent’s sub-contracting out, if ever, to the 2nd Respondent would be a breach. The 4th Respondent would not have allowed it. However, he was given to understand, from what the 2nd Respondent had told him, that the 2nd Respondent was the 3rd Respondent’s project manager. I do not see how such agreement, if any, between the 3rd Respondent and the 4th Respondent, could affect the Applicant’s claim.

9. The 3rd Respondent says that he had used his firm’s name to tender for Projects on behalf of the 2nd Respondent on many occasions. He did not regard himself as the actual employer. I do not see how such private arrangement between himself and the 2nd Respondent could affect the Applicant’s claim.

10. The Applicant challenges the 1st Respondent’s explanation as to why he came to sign the Form 2 acknowledging to be the Applicant’s employer. The 1st Respondent says that he was beguiled by the 2nd Respondent into believing that the Applicant was a workman under him (the 1st Respondent). The 2nd Respondent used to cooperate with him (the 1st Respondent) in various projects from time to time. Subsequently upon realizing such mistake, he wrote to the Labour Department in purported correction of the mistake. I believe that he was not the Applicant’s employer.

Liability: whether the Applicant was an independent contractor or the employee of which respondent(s)

11. The Applicant had 10 years’ experience in his trade and was a painting master. He knew his job well. He was not supervised by the 2nd Respondent. The 2nd Respondent would decide what work he was to do. He might go to work a bit later but he could not stall for time because it was the 2nd Respondent who could decide how many days of work he would be given. He had to work with different people who were also working for the 2nd Respondent. His daily wage was fixed at $800. He used the ladder supplied by the 2nd Respondent. There is no challenge to such evidence and I find such proved.

12. Ribeiro PJ, who delivered the judgment of the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLR 951 said:

18. The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developed in the abovementioned case-law with a view to deciding whether, as a matter of overall impression, the relationship is one of employment, bearing in mind the purpose for which the question is asked. It involves a nuanced and not a mechanical approach, as Mummery J emphasised in Hall v Lorimer[26] (in a passage approved by the English Court of Appeal[27]):

“In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.” (952D)

13. Applying the principle to the present facts, bar insolvency on the part of the 2nd...

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