莊鴻偉 v. 林群 and Another

[ENGLISH TRANSLATION – 英譯本]
CACV 194/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 194 OF 2013

(ON APPEAL FROM DCEC NO. 1378 OF 2011)

Before: Hon Cheung and Yuen JJA and Au J in Court

Hearing Date: 6 October 2015

Date of Judgment: 13 October 2015

JUDGMENT

Hon Cheung JA giving the Judgment of the Court:

1.This is the 2^nd respondent’s appeal against the ruling of Deputy District Judge Reuden Lai who determined that the applicant be awarded compensation in the sum of $365,830 to be paid by the two respondents under the Employees Compensation Ordinance (Cap 282).

Facts of the case

2.Deputy Judge Lai found that the 1^st respondent was the applicant’s employer and he hired the applicant to carry out demolition work inside a flat in a building located on King’s Road, North Point.  The 2^nd respondent was the “principal contractor” of the demolition work.  He sub-contracted the works to the 1^st respondent.  The 1^st respondent was the “sub-contractor”.

3.The facts of the case show that the demolition work took place on 10 and 11 December 2010. Around 6:15pm on the second day of the works, the applicant was removing the demolition debris and waste into the skip near the entrance to the building in question.  At that time the skip was nearly full of debris and waste.  The top of the skip was slightly over 6 feet from the ground.  At the material time the applicant was standing on the skip and pulling a mattress into it while the 1^st respondent was standing at the end of the skip drinking beer.  When the applicant was pulling the mattress forcefully, the 1^st respondent suddenly pushed the mattress into the skip without notifying the applicant.  As a result the applicant lost his balance, fell down from the rim of the skip (which was more than 6 feet high) to the ground and became injured.  

4.His injuries included right first and seventh ribs fracture, pneumothorax on the right, a collapsed lung, abrasion on the right elbow, and right shoulder and right hip contusion.

The ruling of Judge Lai

5.Judge Lai found that the applicant sustained injury at work during his employment:

“59. The 2^nd respondent claimed that the applicant was injured after he had finished the demolition works and had left the unit; the incident had nothing to do with him.

60. All evidence confirmed that the works included demolition and clearing of the debris. The 2^nd respondent produced an “undertaking” signed by the 1^st respondent to him, which stated clearly that the works included “removing demolition debris (and) miscellaneous items [emphasis added].

61. When the applicant sustained his injuries the demolition debris had not yet been removed, and the works were not finished. The applicant was injured when he was dealing with the demolition debris. The applicant was certainly injured at work.”

Grounds of appeal

6.The ground of appeal put forward by the 2^nd respondent was that Judge Lai had erroneously found that “the demolition debris had not yet been removed” and the applicant was injured at work.  The 2^nd respondent said that on the day in question the 1^st respondent and the applicant had finished the demolition works in the unit under renovation and removed the debris away from the work place, the works were done and he had confirmed it.  The applicant was injured when he fell down from the skip carrying demolition debris in the street outside the building where works were carried out.  He said the accident did not happen within the scope of the project concerned, he should not be held responsible.

Appeal against findings of facts

7.When dealing with an appeal involving findings of facts, an appellate court will not overturn the ruling of the trial judge unless he is plainly wrong in his findings of facts.

Strict liability

8.The Employees’ Compensation Ordinance stipulates that an employer is liable to pay compensation for personal injury by accident to any employee arising out of and in the course of his employment.  This is a “no fault liability.  Under section 3 of the Ordinance the definition of employer includes “principal contractor” and “sub-contractor”.  Besides, under section 24(1), the “principal contractor” shall be “liable to pay to any employee employed by that ‘sub-contractor’” in the execution of the work any compensation under this Ordinance which the ‘principal contractor’ would have been liable to pay if that employee had been immediately employed by him.  The employee is entitled to compensation provided he is injured by accident arising out of and in the course of his employment.  The ‘principal contractor’ is liable for compensation when an employee fits such criteria regardless of whether the accident occurred as a result of the negligence of the employee himself or the ‘sub-contractor’.

9.The evidence of the 2^nd respondent was that he hired the 1^st respondent to carry out demolition works that included demolishing debris and removing waste.  Apart from paying the 1^st respondent $8,000, the 2^nd respondent also paid him$1,700 for hiring a lorry to remove the waste.  In a quotation printed with the name of the 2^nd respondent’s company, there was the following handwritten record:

“C, 4/F., North Point Building

① accepted Ho Wan Cheuk Man (好運棹文) ‘s (transliteration) job, wages (for) removing demolition debris (and) miscellaneous items 8,000”

10.At the bottom of that quotation is the signature of the 1^st respondent. The evidence shows that the works were not only carried out inside the unit, it was also necessary to remove micellaneous items into the skip until they were driven away by the lorry.  Under such circumstances, Deputy Judge Lai’s finding that the applciant was injured at work is an entirely correct finding of facts.

11.Besides, the 2^nd respondent also mentioned that the accident occurred as a result of the negligence of the 1^st respondent.  As we said before, this is not a defence that will exonerate the 2^nd respondent from being liable to pay the applicant compensation.  

Conclusion

12.Given the reasons above, we dismiss the appeal and order that the 2^nd respondent do pay costs of the appeal to the applicant.  We make no order as to costs between the 1^st and 2^nd respondents.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations (Cap 91A).

Susanna K.Y. Leong, instructed by Y.K. Tam & Co., assigned by Director of Legal Aid, for the plaintiff.

The 1^st respondent appeared in person.

The 2^nd respondent appeared in person.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.