Workmen's Compensation - Meanings of Principal and Contractor - Accident during rest period is accident in the course of employment - accident arising of employment.
IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT VICTORIA
WORKMEN'S COMPENSATION CASE NO. 78 OF 1969
|Chow Mui on behalf of herself and other dependants of the deceased
|Chow Cheuk Chung
|Hope Sea Limited
Coram: T.L. Yang, District Judge
Date of Judgment: 30 September 1970
1. This is the widow's application for compensation under the Workmen's Compensation Ordinance in respect of the death of her husband Mr. Lau Man-bun, who died on 30th March 1969, whilst employed as workmen on board a ship called the Kowloon Star. The First Respondent is the sole proprietor of a firm of stevedores carrying on business under the style and title of Luen Lee Stevedores, at 396 Shanghai Street, first floor, Kowloon. His business included that of providing watchmen on board ships. It appears that, whilst he is described in this application as a partner of a firm called the Tung Yiu, he does not in fact have any connexion with that firm. The Second Respondent is the owner of the Kowloon Star which was lying near the Stone Cutters Island at the material time. The Intervener is a watchman by occupation who performs his duties on board ships.
2. The circumstances in which Mr. Lau Man-bun (hereafter referred to as the deceased) died were as follows. On the 26th March 1969 the Kowloon Star was towed back to Hong Kong from Singapore. She was then moored at a position off the Stone Cutters Island waiting for the owner to find a buyer for her. Though the vessel was not carrying any cargoes at the time, it was nevertheless necessary for watchmen to be posted to guard the fixtures in order to prevent any pilfering. It was with this purpose in mind that the owner of the vessel asked the First Respondent to provide two watchmen on board. The First Respondent not having the requisite licence to employ watchmen, in turn asked the Intervener to recruit the required number of watchmen for him. It will not be out of place to note here that since 1968, whenever the First Respondent was asked by ship owners to provide watchmen on their ships, he would engage the Intervener to recruit the required number of watchmen for him. On the occasion now under consideration the Intervener recruited the deceased and one Mr. Hui Cheung as watchmen on the Kowloon Star and the two men went on board when the vessel arrived in Hong Kong on the 26th March 1969.
3. In order to determine who the employer of the deceased was, it is necessary to appreciate the manner in which he was paid. As a normal practice (though there were a few exceptions), the First Respondent would pay the Intervener for providing the watchmen, and the Intervener would in turn pay each watchman the wages due. The amount payable by the First Respondent to the Intervener was shown on an invoice rendered, which specified, inter alia, the wages due to the watchmen and the foreman, and also expenses for such items as meals and the hiring of motorboats to ferry the watchmen to and from the ship concerned. The so-called foreman was in fact often nothing more than a fictitious figure in that the Intervener himself would pocket the foreman's wages without performing the duties as such. The prevailing rate of pay for a watchman in the trade was $8 per eight-hour shift and that for a foreman was $10 per eight-hour shift. The Intervener did not in fact receive the full amount stated in his invoice, for the First Respondent made his profit by deducting ten per cent from the watchmen's wages and half of the foreman's wages whilst claiming the full amount from the ship owners. It appears from the evidence that in the present case the normal method of payment was adopted.
4. The position here is governed by the 1964 Revised Edition of the "orkmen's Compensation Ordinance, for the 1969 Revised Edition did not come into effect until after the death of the deceased. By Section 23(1) of the 1964 Revised Edition...