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Li Che Keung v Chan Kam Wa T/a J & J Design Decoration

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date18 January 2013
Year2013
Judgement NumberDCEC423/2011
Subject MatterEmployee"s Compensation Case
CourtDistrict Court (Hong Kong)
DCEC423/2011 LI CHE KEUNG v. CHAN KAM WA t/a J & J DESIGN DECORATION

DCEC 423/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 423 OF 2011

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IN THE MATTER OF AN APPLICATION BETWEEN:

LI CHE KEUNG Applicant

and
CHAN KAM WA trading as J & J DESIGN DECORATION
（陳錦華經營華庭設計工程）		 1st Respondent
WONG TSUN MAU KENNY
（黃俊謀）		 2nd Respondent

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Before : Deputy District Judge Joseph Chung in Court
Dates of Hearing : 7 & 8 May 2012
Date of Judgment : 18 January 2013

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JUDGMENT

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INTRODUCTION

1. This is an application for compensation by the applicant pursuant to Sections 9, 10 and 10A of the Employees’ Compensation Ordinance Cap 282 (“the ECO”) arising out of an incident to the applicant on 19 June 2010 (“Incident”).

2. On the day of the Incident, the applicant was carrying out renovation work at Flat B, 13th Floor, Block 3, Charming Garden, No 16 Hoi Ting Road, Kowloon (“the Premises”). Whilst using a cutter to cut materials for the purpose of fixing a door frame in the Premises, the applicant cut his right index finger thereby sustaining bodily injuries.

LIABILITY

3. Pursuant to Section 5(1) of the ECO, an employer is only liable to pay compensation under the ECO if personal injury by accident arising out of and in the course of employment is caused to his employee.

4. Accordingly, pursuant to Section 5(1), the applicant has to prove the following to be entitled to compensation:-

(1) the applicant was at the material time employed by one of the respondents;

(2) the applicant suffered personal injury by accident; and

(3) the accident arose out of and in the course of employment.

Who was the applicant’s employer?

5. The 1st and 2nd respondents do not appear to dispute that at the time of the Incident, the applicant was an employee but what they do dispute is who was the applicant’s employer. The 1st respondent points to the 2nd respondent and vice versa.

6. The applicant does mainly carpentry works. According to the applicant, he had known the 1st respondent for 20 odd years. The 1st respondent is a renovation contractor. The applicant’s evidence is that he met the 1st respondent again in around August 2009 when he started to work as a casual labour for the 1st respondent trading as J&J Design Decoration. According to the applicant, the 1st respondent agreed to pay the applicant a daily wage of HK$800 payable every 10 days. The 1st respondent would usually pay the applicant in cash or sometimes by cheque. The applicant said that the 1st respondent would usually telephone him one or two days before to see whether he was available to do work for the 1st respondent. If the applicant was available, the 1st respondent would give instructions to the applicant as to what he had to do over the phone or if no such instructions were given over the phone, the 1st respondent would give the instructions on the applicant’s first day on site and that if the applicant encountered any problems during the course of his work, he would seek instructions from the 1st respondent. The applicant said that he did mostly carpentry work. At times, he also did paint and electrical works. According to the applicant, the 1st respondent also engaged other workers on site. The applicant’s working hours were from 9 am to 6 pm with 1 hour lunch between 12 noon and 1 pm. The applicant said that if he had to work overtime until 8pm, he would be paid half his daily wage ie HK$400 and if he had to work overtime until 10pm, he would be paid HK$800. It is worth mentioning that the 1st respondent had been in arrears of salary which the applicant did not recover until he commenced proceedings in the Labour Tribunal in 2010 (in LBTC3663/2010) where the Tribunal ordered the 1st respondent to pay the applicant his outstanding salary of HK$14,000.

7. The applicant said that on the days when he was ill and could not turn up at work, he needed to telephone the 1st respondent to take sick leave and subsequently submit sick leave certificate(s) to the 1st respondent and that he would not be paid for the day(s) he took sick leave. According to the applicant, the 1st respondent was responsible for providing large items of equipment such as electric saw, electric drill and air spray. Whereas the applicant would have with him small tools such as hammer and chamfer. In general, the materials were provided by the 1st respondent. If no materials were provided, the applicant would purchase them and subsequently seek reimbursement from the 1st respondent.

8. It is of significance that the 1st respondent accepts in his evidence that he was the applicant’s employer prior to the Incident but that and curiously, the 1st respondent claims that on the day of the Incident, it was the 2nd respondent who was the applicant’s employer.

9. The applicant said in his evidence that on 18 June 2010, the 1st respondent telephoned and asked whether the applicant could work at the Premises on 19 June 2010. According to the applicant (which the 1st respondent accepted in his evidence), the 1st respondent’s request was no different from his many requests in the past to do work. Although in the telephone conversation, the 1st respondent did not say what work the applicant had to do and how much he would be paid, the applicant said in his evidence that he understood from his previous dealings with the 1st respondent that he would be doing carpentry, paint or electrical works and that he would be paid a daily wage of HK$800. In fact, according to the applicant, since his discussion with the 1st respondent in August 2009 (as referred to in paragraph 6 above) that the applicant would be paid a daily wage of HK$800, there had been no further discussions between the two of them on the applicant’s wages. The applicant said (which the 1st respondent accepts) that during the telephone conversation, the 1st respondent did not say that for the purposes of working at the Premises, the 2nd respondent would be the applicant’s employer or that the 1st respondent was merely introducing the applicant to work for another.

10. As matters unfolded, the applicant had to do rectification work to the defective renovation carried out to the Premises by the 2nd respondent’s previous contractor who had since abandoned the work. The 2nd respondent is the registered owner of the Premises. Both the applicant and the 2nd respondent said in their evidence that prior to 19 June 2010, they did not know each other.

11. The applicant said in his evidence that on the day of the Incident, the 1st respondent who was also present at the Premises, gave instructions to the applicant as to what he was required to do. The applicant was instructed to change the corridor timber flooring, repair and repaint the door frame(s) and inspect the pipes in the kitchen and bathroom for leakages. The applicant said that at no time, did the 1st respondent suggest to him that he should discuss the question of payment or the work to be carried out with the 2nd respondent and/or his mother who was at the Premises on the day of the Incident.

12. In my judgment, from the matters referred to in paragraphs 9 to 11 above, the applicant’s assignment to work at the Premises on the day of the Incident was no different from his previous assignments with the 1st respondent prior to the date of the Incident.

13. It is the 2nd respondent’s evidence that the applicant did not carry out his work properly and that the 2nd respondent’s mother complained to the 1st respondent regarding this who had confirmed that he would speak to the applicant. The 1st respondent accepts that he had received a complaint on the applicant’s performance but said that it came from the 2nd respondent’s wife (as opposed to his mother). The 1st respondent’s case is that he had subsequently telephoned the applicant regarding this. The applicant claims that he has no recollection of these events. I am satisfied on the evidence that someone from the 2nd respondent (whether it be the 2nd respondent’s mother or wife) had complained to the 1st respondent on the applicant’s performance and that the 1st respondent had subsequently spoken to the applicant regarding this. In my judgment, this points to the direction that it was the 1st respondent who was the applicant’s employer. If the 2nd respondent was the employer, logically, there would have been no need for the 2nd respondent’s mother/wife to have complained to the 1st respondent. They could have directly spoken to the applicant on the spot. Further, the 1st respondent would not have taken on the trouble of speaking to the applicant on this. In my judgment, he would have told the 2nd respondent to speak to the applicant directly.

14. There appears to be no dispute that there remained various materials at the Premises and that the 1st respondent had told the applicant to buy outstanding materials. The 1st respondent’s evidence is that he gave the applicant HK$500 for such purpose. If the applicant was really not the 1st respondent’s employee, it is difficult to see why the 1st respondent would have made the payment out of his own pocket.

15. The applicant testified that the following day after the Incident on 20 June 2010, he telephoned the 1st respondent and said that in view of his injuries, he would not be able to resume work for some time, he requested the 1st respondent to liase with the 2nd respondent for the applicant to collect his tools and clothes from...

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