Wong Po Sin v New Universal Paper Co Ltd

Court:District Court (Hong Kong)
Judgement Number:DCCJ166/1971
Judgment Date:04 Feb 1972
DCCJ000166/1971 WONG PO SIN v. NEW UNIVERSAL PAPER CO LTD

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN’S COMPENSATION CASE NO. 166/1971

_______________________

Between

WONG PO SIN, sister of Wong man shun (deceased), on behalf of the dependants of Wong Man Shun (deceased)

Applicant

and

New Universal Paper Co. Ltd.

Respondent

_______________________

Coram: T.L. Yang, D.J. in Court

_______________________

JUDGMENT

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1. This is an application made on behalf of the dependants of the deceased labourer for compensation under the Workmen’s Compensation Ordinance.

2. It is not disputed that the deceased was killed in a fatal accident when a roll of paper weighting some 400 to 500 pounds which he was loading onto a lorry fell on top of him.

3. The only real issue between the parties is whether the deceased was a workman employed by the respondent company. On this question I have before me the evidence of another labourer Ng Fat who was on the day of the accident engaged in the same kind of work with the deceased. I am satisfied that Ng Fat is a witness of truth and it is on his evidence that I find the following facts proved.

4. Both the deceased and Ng Fat belonged to that class of labourers or coolies who earned their livelihood by making themselves available for such work that any person or persons might from time to time engage them to do. Prior to the day of the accident, both men had worked for the respondent company for at least a month. According to Ng Fat, the practice was that if the respondent company had no work for him to do, he would work for others. On the other hand, when the respondent company required him to do work, they would contact him by telephone, and he would ask the deceased if he was willing to do the work, if so, they would then work together. On the day in question four labourers including the deceased and Ng Fat were working “for the respondent company” in loading rolls of paper onto lorries, each roll weighing some 400 to 500 pounds. In doing this work, a trolley was used to convey the roll of paper to a position near the lorry and the men would then roll the paper onto the vehicle with the assistance of two wooden planks. The trolley was owned by the labourers, but the planks were supplied by the respondent company.

5. When the respondent company had such a job to be done, their “boss” Mr. Chan would (in the words of Ng Fat) “assign” the work to Ng Fat and he would then recruit other workers to work together with him. Mr. Chan “looked for” him to do the work, but as he could not do the work by himself, he had to obtain other labourers. Though Mr. Chan knew about this, he never spoke to Ng Fat about getting other men to help him. Both parties assumed that this would be done, and the same arrangements had been made before. The respondent company in fact seldom knew how many men were working with Ng Fat. It was the deceased who decided whether to recruit additional labourers or not, after discussion with Ng Fat and having regard to the weight of the goods to be moved.

6. It does not appear that there was any control by the respondent company over the work done by Ng Fat and his men. The respondent company’s godown keeper simply told the four labourers which particular consignment or type of paper was to be put onto the lorries (See Crowley v. Limerick(1); Bray v. Kirkpatrick & Sons(2)) These four men would then agree on what to do and...

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