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Ma Kam Sing v Lau Sui Keung T/a Lai Ching Lighting & Electrical Co

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date27 September 2012
Year2012
Judgement NumberDCEC1022/2010
Subject MatterEmployee"s Compensation Case
CourtDistrict Court (Hong Kong)
DCEC1022/2010 MA KAM SING v. LAU SUI KEUNG t/a LAI CHING LIGHTING & ELECTRICAL CO

DCEC 1022/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1022 OF 2010

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IN THE MATTER OF AN APPLICATION BETWEEN

MA KAM SING Applicant

and
LAU SUI KEUNG trading as LAI CHING Respondent
LIGHTING & ELECTRICAL CO.

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Before : Her Honour Judge HC Wong in Court
Dates of Hearing : 8-10 August 2012
Date of Judgment : 27 September 2012

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JUDGMENT

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1. The applicant claims against the respondent for compensation under Ss 9, 10 and 10A of the Employees Compensation Ordinance Cap 282. The respondent denies he is liable claiming the applicant was not his employee but an independent contractor, and in any event, the accident did not arise out of the employment.

The applicant’s case on liability

2. The applicant Mr Ma Kam Sing (“Mr Ma”), claims that on 31 August 2008, he was injured while he was employed by the respondent, Mr Lai Sui Keung (“Mr Lai”), as a delivery worker at a monthly wage of $12,000.

3. Mr Ma’s evidence was, on the afternoon of 31 August 2008, he was instructed by Mr Lau to deliver a washing machine to a customer in the neighbour of the respondent’s shop in Yen Chow Street in Sham Shui Po, Kowloon. He was joined by a new colleague Mr Lee Hoi Cheung when he made the delivery.

4. Upon return to the respondent’s shop after the delivery at around 4 pm, Mr Ma went to the back of the shop. He claimed he was climbing the internal staircase to the shop’s mezzanine floor where goods were stored to collect goods for the next delivery when a few rice cookers fell from the mezzanine floor onto his head. He felt dizzy and eventually lost consciousness. When he came to, he was in the ambulance being taken to Caritas Medical Centre. The applicant admitted subsequent to the accident on the staircase to the mezzanine floor, Mr Ma suffered a stroke.

5. Mr Ma disagreed with the respondent’s assertion that he was an independent contractor who was paid a fee for each delivery he made for the respondent. Mr Ma insisted he was employed by Mr Lai and received a monthly salary. He further claimed he was given a key to the respondent’s shop with the responsibility of cleaning and general duties at the shop working from 10 am to 9 pm each day. He produced a letter with the respondent’s letterhead and chop dated 2 April 2008 stating that Mr Ma was the employee of the respondent with a monthly salary of $12,000 (p 104 of the bundle). He said the letter was written at his request in support of a credit card application.

6. Mr Ma claimed he was first employed by Mr Lai in 1990 and had worked for a few months at the shop. In 1994, he returned to work for him for a short period. He returned to work for Mr Lau again in 2004 until the accident in August 2008. He denied he was an independent contractor or that he was paid on a piece work basis for each delivery job done. He admitted the $12,000 monthly income included tips he received from the respondent’s customers. He further denied the list of delivery and installation charges (at p 113 of the bundle) applied to him.

The respondent’s case on liability

7. The respondent’s proprietor Mr Lau gave evidence in court. He claimed all the delivery and installation work at his shop was contracted out to a number of sub-contractors and Mr Ma was one of his sub-contractors. He relied on the respondent’s profits and loss account for 1 April 2007 to 31 March 2008 and 1 April 2008 to 31 March 2009 with a lists of sub-contractors and payments made to them (p 109-112 of the bundle).

8. It is Mr Lau’s evidence that on 31 August 2008, he gave a few delivery orders to Mr Ma and his work was shared by a new sub-contractor Lee Hoi Cheung. At around 4 pm, after Mr Ma returned from a delivery job, Mr Lau told him to take a rest before making the next delivery. He believed Mr Ma went to the back of the shop to clean up because he looked hot and sweaty. Lee Hoi Cheung returned to the shop with the trolley two minutes later and proceeded to the back of the shop. Soon after, Mr Lau was alerted by Lee that Mr Ma was feeling unwell, he went to the back of the shop where he saw Mr Ma lying between the stairs and the floor. The ambulance was then called to take Mr Ma to the hospital.

9. It was the evidence of Mr Lee Hoi Cheung that Mr Ma and he had delivered a washing machine to a tenement building in Fuk Wah Street where they had climbed up to the 3rd or 4th floor to make the delivery. Afterwards, Mr Ma told him he was not feeling well and took the public transport to return to the shop instead of walking back.

10. After Mr Lee returned to the shop, he went to the back of the shop to find Mr Ma lying between the stairs and the floor trying to get up or speak without success. He claimed he saw no bruises or bleeding wounds on Mr Ma, neither were there any goods scattered on the floor below the stairs.

11. Mr Lee confirmed he was engaged to work as a sub-contractor of Mr Lai at his shop. He was paid by the number of deliveries he made and he would be paid every two weeks by Mr Lau. He stopped working for the respondent in July 2010.

12. The respondent’s third witness Miss Wong Yim Hung gave evidence. She told the court that she was also an independent contractor of the respondent and was paid a daily wage of $280 working from 10 am to 9 pm. She received no sales commission, even though her duties were clerical, she was also required to do some cleaning and sales.

13. It was Miss Wong’s evidence that she did not hear the sound of a person falling down from the staircase even though she was sitting close to the back of shop. She claimed she did not see any goods scattered on the floor below the stairs when she went to the back upon being told Mr Ma was unwell. She no longer worked for the respondent after December 2009.

The Issues

14. The issues on liability are:

(a) Was the applicant an employee of the respondent or an independent contractor?

(b) Did the applicant suffer an accident in the course of employment on 31 August 2008?

(c) Did the applicant suffer a stroke as a result of an accident in the course of employment and arising out of his employment on 31 August 2008?

Findings

(a) Was the applicant an employee of the respondent or an independent contractor?

15. The test on determining whether a person was an employee or independent contractor is set out by Ribeiro PJ in the case of Poon Chau Nam v Yiu Sui Cheung [2007] 1 HKLR 951 para 17 where he referred to the Privy Council judgment in Lee Ting Sang v Chung Chi Keung & another [1990] 1 HKLR 784 at 766H – 767B. In the privy council case, Lord Griffiths agreed with the Court of Appeal and said the matter had never been better put than by Cooke J in the case of Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 at 183-185:

“… the fundamental test to be applied is this: “Is the person who had engaged himself to perform these services performing them as a person in business on his own account?” If the answer to that question is “yes,” then the contract is a contract for services. If the answer is “no”, then the contract is a contract for services. No exhaustive list has been complied and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various consideration should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”

16. Ribeiro PJ added in para 18 of his judgment:

“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 of which the question is asked. It involves a nuanced and not a mechanical approach, as Mummery J emphasised in Hall v Lorimer [1992] 1 WLR 939 at p 944 (in a passage approved by the English Court of Appeal [1994] 1 WLR 209 at p 216 (CA)):

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.”

17. The list of eight criteria set out...

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