T.K. Shen Construction Co v. Yip Pak-ying

CACV000022/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 22 OF 1973

(ON APPEAL FROM V.C.J. WORKMEN'S COMPENSATION CASE NO. 57/72)

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Coram: Full Court (McMullin & Pickering, JJ.)

Date of Judgment: 11 October 1973

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JUDGMENT

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McMullin J.:

1. The T.K. Shen Construction Company appeals against an award of $21,600.00 made in the District Court in favour of the dependants of YIP Hon-ching who was an employee of the company and who, together with another employee, died in a landslide which occurred on a site owned and operated by the company during the night of 16th August 1971 when Typhoon Rose passed directly over the Colony. The deceased workmen were in a watchman's hut at the time the disaster struck and this appeal arises out of the disputed question as to their right to be in that place at that time. It is common ground that YIP Hon-ching, the applicant's deceased uncle and the other deceased, KWOK Pak-fai, were odd job workers employed on a daily basis as manual labourers and that their working day, in common with all other such workers, would normally end at 6.00 p.m. The company employed another manual worker as night watchman. This man, YIP Mou, told the court that he was expected to do his ordinary day's work on the site between the hours of 8.00 a.m. and 6.00 p.m. and thereafter he would commence upon his duty as watchman from 6.00 p.m. to the following morning at 8.00 a.m. He alone was entered upon the company's books as night watchman. It is common ground that he avoided the rigours of a 24-hour working day by taking on the two deceased as assistants to the company's knowledge and that the night work was split into three watches shared between the three of them. For the night work YIP Mou was paid $10 per night i.e. $70 per week and this was shared equally between himself and his two co-workers.

2. On the day before the accident, 16th August, Typhoon signal No. 7 was hoisted some time during the morning and since it was a company's regulation that on the raising of signal No. 5 or higher all employees at the site should be permitted to go home, the company's foreman, WONG Kam-wing, notified all workers on the site at 10.00 a.m. to stop work instantly. According to him all workers left the site but he himself returned at noon and discovered the deceased, YIP Hon-ching and the other worker, now also deceased, KWOK Pak-fai, still at the site. Nothing appears to have been said at that stage but the foreman returned once again between 6 and 7 p.m. at which time he saw Kwok in his pyjamas near the watchman's hut. He spoke to him and, from what was said, he understood that the other deceased, YIP Hon-ching, was also still upon the site. The foreman told Kwok that he and Yip should leave. It would appear that he then himself left without actually seeing or speaking to Yip. YIP Mou, the "official" watchman asked for and obtained a day off upon that day and he had informed YIP Hon-ching and KWOK Pak-fai at 9.00 a.m. that he was going off and would not return to the construction site that night. It was common ground that the arrangement made by YIP Mou with the other two had been sanctioned by the company's site superintendent, Mr. YU, and the learned trial judge took the view that at the very least the company must therefore be assumed to have accepted the propriety of this arrangement and therefore tacitly to have given its permission to the two deceased to assist YIP Mou in his duty as watchman. The night watchman's duties consisted principally of touring the site during the hours of darkness in order to keep an eye to the company's plant and machinery and other properties thereon. The trial judge took the view that not only was the company aware of the arrangement but that some such arrangement was necessary if the duties of watchman were to be carried out in a satisfactory manner and he regarded this as sufficient to show that the company was employing not only YIP Mou in a dual capacity but also the deceased in the present case and his companion Kwok. He found that YIP Hon-ching was acting as watchman on the night in question; that his presence on the site was "for the purposes of and in connection with his employer's trade or business" and that his death arose out of and in the course of his employment.

3. Mr. Denis Chang, who presented the company's case upon the hearing of the appeal, makes two points : firstly, he says that the trial judge has been guilty of a fatal non-sequitur in jumping from the finding that the company had permitted the deceased and his companion to assist YIP Mou to the conclusion that the company had thereby employed the deceased and his companion for that work; secondly, he says that even if it be held that the company did employ the deceased the award of compensation was not justifiable because the evidence indicates that it was no part of the duties of any watchman to remain upon the site during the typhoon and because the deceased and his companion actually did so despite apositive order given by a lawful superior to quit the site on the day in question. Mr. Chang did not seek to argue that remaining upon the site in defiance of such an order amounted to "serious and wilful misconduct" within the meaning of s.5(1)(b) of the Ordinance such as would have left the court with a discretion (this being a fatal injury case) to refuse compensation or to award it only in part. His argument here is that the act of the deceased remaining with his companion upon the site despite the proximity of the typhoon was simply not within the scope of his employment at all, the more so because the ordinary company's practice to that effect had been fortified by a positive order given to him to quit the site.

4. As to the first point we are satisfied that the deceased was in fact employed by the company as watchman. Mr. Chang and Mr. Asome, who appeared for the respondent, are at one in the view that it would be idle to apply to the arrangement which existed in the present case many of the elaborate and subtle tests which have in previous cases been employed to set off the situation of the independent contractor from that of the directly employed workman. Indeed it would seem difficult to obtain much advantage from the use of such tests as the entrepreneurial test or the independent profit test with such a simple working arrangement as here existed. The decisive factor, as it seems to us, is that the company was not only aware of the arrangement but must have been aware also that the protection of its interests by the use of a night watchman could not be effectively achieved without resort to some such arrangement. YIP Mou himself and several of the other workers who gave evidence positively stated that all three had been accepted as watchmen. It is, perhaps, an odd feature of the case that the judge found that all the witnesses for the applicant and the single witness for the respondent were witnesses to the truth, going so far as to comment upon the pleasant singularity of such a situation, and yet he did not make any positive finding as to whether or not he believed their evidence on this matter. In view of the fact that, as he himself remarked, Mr. Yu, the superintendent, was not called by the company to refute the suggestion of a positive employment of the deceased, the trial judge might well have been justified in concluding that through agency of Mr. Yu, and following upon a complaint by YIP Mou that one man alone was not sufficient to do the night work, the company had thereafter, as YIP Mou put it, "recognised" the three of them as sharing the watchman's duties. It may be, however, that in describing the company as a tacit party to the arrangements, the judge meant that by its silent approval of YU's dealings with the three parties concerned it was acknowledging itself as their employer in the role of joint watchmen. Certainly the circumstances would seem to be sufficient to warrant such a conclusion. As connsel both agree the only test which is of real relevance to the arrangement is the test of control. We see no reason to disagree with Mr. Asome when he contends that in view of Yu's knowledge of the arrangement the company would have been entitled at any time to give orders to any one of the three as to how the work of night watchman must be carried out or to complain about inadequate performance of the task.

5. The second point raises a little more difficulty. Although it appears to have been accepted by the judge that it was part of the night watchman's duties to remain upon the site during a typhoon the evidence, scant though it is, certainly seems to point the other way. There is firstly the fact that YIP Mou himself certainly seemed to feel under no constraint to return to the site at night once the typhoon signal had been announced and that he, according to YIP Kam-fai, left the site immediately as soon as No. 7 was hoisted; again there was the evidence of YIP Pak-ying who also said that YIP Mou left the site as soon as he learnt that No. 7 signal was hoisted and went on to say that he (the witness) gave the deceased, Kwok, $10 for travelling expenses if he should leave the site after the witness did. This seems to show that the witness at any rate expected that Kwok, whether he was watchman or not, was expected to leave the site; thirdly, and most important however, there is the fact that according to the evidence of the foreman, Wong, (which was believed by the judge) when he went to the site between 6 and 7 p.m. he actually told Kwok to leave the site and warned him to pass this message on to Yip. This latter evidence given by a person of some authority certainly seems to imply that it was no part of the regular duties of a night watchman to remain upon the site during a typhoon. The difficulty which faces the employer at this point, however, is that there was no evidence from any superior official of the company concerning its practice as to night watchmen and their duties in relation to such emergencies as the occurrence of tropical storms nor was there any evidence to show that the nature of the duties whatever they may have been, were specifically spelled out to YIP Mou or to his colleagues. This evidence, therefore, while it might suggest that it was the right or even the duty of all employees to leave the site when No. 5 signal was hoisted is by no means conclusive as to the state of knowledge of any given employee. On the face of it there is as much need for the presence of a watchman on a building site in a typhoon as there is at other times though perhaps for different purposes (and always assuming that a shelter of sufficient solidity has been supplied to render the performance of his duties under such conditions reasonably safe.) Unless, therefore, the deceased, YIP Hon-ching, had received express instructions to the contrary it was reasonable for him, in the absence of such instruction, to assume that he was required to stay upon the site in the absence of the "head" watchman. Of the two remaining watchmen only KWOK Pak-fai (the other deceased) appears to have been given money for his travelling expenses by YIP Kwai-fong on the evening when Typhoon Rose was approaching and there was no evidence that any such money was given to YIP Hon-ching. An express order to leave the site was given by the foreman to Kwok coupled with an instruction to convey that order to Yip. Up to that time both Yip and Kwok presumably were there upon the site in the interest of their employers. There was no evidence that the foreman's order ever reached the deceased, Yip. The learned trial judge was apparently prepared to assume that the order was passed on but in a matter of such crucial importance it is difficult to see what justification there was for his making that assumption. It is to be noted that the evidence of the foreman was that when signal No. 7 was hoisted at 10.00 a.m. on the morning of 16th August he at once notified all workers through a loudhailer to stop work instantly and he added that after that all the workers left the site. Nevertheless he himself remained there until noon and at that time there were two or three workers still on the site, YIP Hon-ching and KWOK Pak-fai being two of the remaining workers. He does not appear to have given any further instruction either to Yip or to Kwok at that time and it was only when he returned between 6 and 7 p.m., to find Kwok in his pyjamas, that he warned him to leave. He did not positively say that he told Kwok to tell Yip to leave but merely that he said to Kwok, upon learning that Yip was also in the vicinity, that Yip should also leave. The foreman appears to have left the site immediately thereafter. There was no evidence as to when the landslide actually occurred and, even assuming that the order given by the foreman had been passed on by Kwok to Yip, there was, therefore, no evidence that a reasonable time had been afforded to the two deceased to comply with the order so given before disaster struck. In short, there was no evidence sufficient to show that in remaining upon the site the two persons were doing so for their own purposes and not for purposes in connection with their employers' trade or business. Once it is accepted that the deceased was de facto in the employment of the company as its watchman the circumstances are such that on the balance of probability the trial judge was justified in finding that the accident arose out of and in the course of the deceased's employment.

6. The appeal must be dismissed with costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Denis Chang (Peter Mark & Co.) for appellant.

Michael Asome (W.K. Lore & Co.) for respondent.