Wong Po Sin v New Universal Paper Co Ltd

Judgment Date04 February 1972
Year1972
Judgement NumberDCCJ166/1971
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
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

_______________________

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 on the best way to load the paper. “The godown keeper did not care how we did the job.”

7. For each roll of paper thus loaded, the respondent company paid $6 or $7, depending on the weight. Payment was made by the cashier of the respondent company to Ng Fat who, as a matter of convenience and because he knew the respondent company and the work was “assigned” to him, signed the receipt on behalf of himself and the other men. On the average, these men could handle as many as 40 to 50 rolls of paper per day. From their income the four labourers had to pay for such disbursements as the ferry fares for the lorries and the purchase of tools and the trolley. The remainder was shared between the four men equally. The ferry fares might be anything from several tens of dollars to $100, depending on the quantity of goods which was transported on the lorry. On the average the income before disbursements was about $200 per day. Disbursements were usually $20 to $30 per day. The net income for each labourer averaged $40 to $50 per day. The custom was therefore for the labourers to be responsible for disbursements which in fact never came to more than the remuneration received from the respondent company. It was also the responsibility of the deceased to hire the lorries.

8. The labourers looked to the respondent company for payment. If the respondent company failed to pay Ng Fat, the rest of the gang would not be paid by him.

9. After the accident Ng Fat was requested by the respondent company to use a chop for the receipt of payments instead of signing his name on behalf of himself and the rest of his gang. As this was a change that came into effect after the accident, I place no reliance on it.

10. Having stated the facts I now turn to the authorities. I begin by referring to Wong Man Luen v. Hong Kong Wah Tung Stevedore Company (Civil Appeal No. 17 of 1971), which came before the Full Court last year. Following Short v. Henderson(3), Huggins J. held that the fact that the Respondent company did not exercise control over the manner in which the work was to be performed was...

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