Ting Kwok Keung v. Tam Dick Yuen t/a Tam Dick Yuen Engineering and Others
Read the full judgment text of CACV 751/2000 on BabelCite. This Court of Appeal judgment was delivered on 4 May 2001.
1. This is an appeal by the respondents from an award made by Deputy Judge Lok in the District Court to the applicant in respect of an award made under the Employees' Compensation Ordinance, Cap. 282.
Cites 1 case
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CACV000751/2000 CACV 751/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 751 OF 2000 (ON APPEAL FROM DCEC 382 OF 1998) ________________
________________ Coram: Hon Mayo VP, Wong JA and Stock JA in Court Date of Hearing: 27 March 2001 Date of Judgment: 4 May 2001 ________________ J U D G M E N T ________________ Hon Mayo VP (giving the judgment of the Court): 1. This is an appeal by the respondents from an award made by Deputy Judge Lok in the District Court to the applicant in respect of an award made under the Employees' Compensation Ordinance, Cap. 282. 2. The award was made in relation to an accident which occurred on 19 July 1996. The applicant was a welding worker. While working he fell from a height and sustained quite serious injuries. The most serious was a fracture of his right femur which resulted in a partial permanent incapacity. 3. There were essentially two issues requiring resolution before the Judge. The first related to the applicant's status at the time of the accident and the second was to the quantum of the award. 4. The question relating to the applicant's status was not without some difficulty. What had to be resolved was whether the applicant was indeed an employee or whether as an independent contractor he was an employer. 5. The applicant claimed that in early July 1996 Lau Chun Pang ("Pang") who is the brother of R3 telephoned him and asked him to work for either R1 or R2 who were erecting a metal hoarding around a building which was being demolished at Yeung Uk. It should be noted that R1 was a sub- contractor of R2. The applicant gave evidence that he and Pang and R3 often worked together. He was employed by them on a day to day basis. He did not accept that he had ever in the past himself acted as a sub-contractor. He said that Pang on a number of occasions had done so. The way it worked was that a contractor or sub-contractor would sometimes even during the currency of a job propose to one of the regular workers that for an agreed sum he would either sub-contract or sub-sub-contract a portion of the work to be done for an agreed capital sum. If the amount was agreed the worker would assume full responsibility for the work which would include the obligation to pay the wages of the other men working on that part of the project. To add a further refinement often the worker would continue to receive his daily wage and the amount which was paid would be deducted from the capital sum payable under the sub-contract. 6. What seems to emerge from the evidence which was before the court was the fluid nature of the working arrangements which were adopted on working sites. 7. Be that as it may the applicant gave evidence that a few days after the commencement of the work he was approached by Pang and R1 and asked if he would like to become a sub-sub-contractor and do the job which would take 45 days for $410,000. He agreed to this and a written contract was concluded to this effect. Some time later additional requirements were added to the work and the applicant had a dispute with Pang and R1 as to what should be done. He insisted upon being released from his commitment as he did not think that all of the work could be finished in the time prescribed and there was a penalty clause for delay of $3,000 per day. This was eventually agreed and it was further agreed that the applicant would continue working on the job as a daily paid worker. It was subsequent to this that the accident occurred. 8. The applicant called one witness Mr Kam Chun Kam a fellow daily paid worker whose evidence so far as it went supported the applicant's version of events. 9. R1, R3 and Pang all gave evidence. The thrust of their evidence was to the effect that the applicant continued to be a sub-contractor until after the accident. It was only after the occurrence of the accident that R3 took over the sub-contract. There was also evidence to the effect that on two previous jobs the applicant had acted as a sub-contractor and there was evidence of a transfer of $20,000 to the applicant in support of this. 10. There was also the evidence of the factory inspector from the Labour Department Mr Lo who investigated the accident and took two statements from the applicant. The first was taken shortly after he left hospital. In that statement he said that he and R3 were "Chau Sam Sha" and went on to describe their roles which were entirely consistent with them being sub-contractors. Mr Lo made a contemporaneous written note of the interview which he read over to the applicant who signed it. He also took a second statement from the applicant when he attended at his office and in effect claimed that he had only been a daily paid worker. It was put to Mr Lo that the applicant had said to him that there had been discussions with Pang concerning his status and that the applicant had been told that if necessary the statement could be added to or amended later on. 11. Mr Lo had said that he did not remember any such exchange. However he went on to say that had there been any such exchange he would undoubtedly have recorded it in the first statement. 12. This very briefly summaries the issue which had to be determined by the Judge concerning the applicant's status. 13. For the reasons he gave in his judgment the Judge held that the applicant had been an employee at the time of the accident. 14. In doing so the Judge had held that he was satisfied that the applicant was a truthful and reliable witness. He had also formed a favourable view of the evidence of Mr Kam a fellow employee of the applicant who had given evidence in his support. 15. Also perhaps partly by inference the Judge had not formed a favourable impression of any of the witnesses giving evidence on behalf of the respondents. 16. Mr Clough for the respondents submitted that on the basis of the evidence which lay before the Judge he had been plainly wrong to make the finding of fact that he had. 17. Mr Sakhrani for the applicant argued that it was open to the Judge to make the findings he had. He further submitted that it was only if the finding was clearly unsustainable that it would be appropriate for the Court of Appeal to interfere with his findings. This is undoubtedly correct. The respondents have to surmount a very high threshold if they are to succeed on this appeal. 18. The approach adopted by Mr Clough was to select two or three significant items of evidence and then argue that on the basis of this evidence it was manifest that the applicant had been a sub-contractor at the time of the accident. 19. The first item of evidence referred to by Mr Clough was the note which was admitted as evidence while Pang was testifying. He had been giving evidence to the effect that when he had been working with the applicant at Lyndhurst Terrace they had both been doing so as sub-contractors. The applicant had denied this. The note which had been exhibited as R1 was translated and read as follows:
20. Attached to the note was a slip of paper which had been obtained from an ATM machine which indicated that the sum of $20,273.00 had been transferred by Pang to the applicant's bank account. This was not disputed. 21. The applicant had given evidence that he had received the said sum but that it represented his wages and a bonus which had been paid to him by Pang. 22. No plausible reason was given as to why Pang should out of the goodness of his heart see fit to pay a bonus to him. 23. More importantly no attempt was made to explain away the note which had been made on the slip of paper which undoubtedly indicated a division of the net proceeds amongst the participants. Surprisingly the Judge simply accepted the applicant's evidence and rejected Pang's. 24. The next item of evidence referred to by Mr Clough was the declaration made by the applicant to Mr Lo the official from the Labour Department seized with the responsibility of investigating the accident. It needs to be added that the declaration was a statutory declaration. 25. The English translation was as follows: "(Translation)
26. It is not necessary to add either the photograph or the plan which was attached to the declaration. 27. The way the applicant dealt with this evidence was to state that at the time when he made the declaration he had been confused as he had just come out of hospital. As earlier indicated he also said that he had informed Mr Lo that there was some uncertainty concerning his employment status and that Mr Lo had agreed that a further statement clarifying matters could be given later. Effectively Mr Lo denied that this had been agreed between them. 28. The applicant did make a further declaration approximately five weeks later on 11 September 1996. It was in this form: "(Translation)
29. It is noteworthy to add that the parties agreed the Chinese characters for "accident" and "incident" are the same. Mr Lo gave evidence that it was his understanding that when the applicant was making his second declaration he had definitely been under the impression that the applicant had been referring to the accident which had occurred. 30. The Judge appears to have simply accepted the applicant's explanation that he had been confused as a result of his injuries when he had made the first declaration. He did not make any serious attempt to analyse Mr Lo's evidence in this connection. 31. One of the reasons for citing all of the contents of these declarations is to provide a complete context to the matter. 32. It will be noted that the applicant did not apparently have any difficulty in giving a detailed description of the circumstances leading up to the accident and how it actually occurred. 33. This would not appear to be consistent with someone being in such a confused state of mind as to be unable to recollect what his true employment status was. 34. It is also apparent from the transcript of the proceedings below that the applicant was fully aware that the question of the status of his employment was a live issue immediately before he made the first declaration. In his evidence he referred to conversations he had had particularly with R3 when there were discussions concerning the applicant's employment status. 35. What is perhaps of greatest significance is that the Judge attached so little importance to the evidence of Mr Lo. 36. He could truly be said to be an independent witness. There was every reason to suppose that he was an experienced person who was discharging a statutory function. He made a note of what was said by the applicant and additionally said that had the applicant indicated that there was any uncertainty as to his employment status he would have recorded this. 37. Even the second declaration did not satisfactorily clarify the outstanding situation. What the applicant says falls short of a clear statement that he was an employee at the time of the accident and give particulars of his employer. 38. There were other unsatisfactory aspects of the applicant's case. As earlier indicated the Judge placed considerable reliance upon Mr Kam's evidence. 39. It should be observed that he was giving detailed evidence concerning conversations which had allegedly taken place almost 4 years earlier when the subject matter of the evidence was only of peripheral interest to him. He was not himself a sub-sub-contractor and it was, even on his evidence, only after the occurrence of the accident that it had been suggested that he might like to become a sub-contractor. In fact it would appear that he was caught out in his evidence in a material way. 40. He gave evidence concerning the conversation which had taken place between the applicant and Pang on the subject of the variation to the terms of the contract after the applicant had become a sub-contractor. When the applicant gave evidence concerning this he said that the conversation had taken place over the telephone. 41. Having regard to all of this it is surprising that the Judge was prepared to attach as much weight as he did to Mr Kam's testimony. 42. What is of particular importance in this appeal is the amount of weight the Judge attached to the applicant's evidence. He proceeded on the basis that he was a truthful and reliable witness when there would appear to be good reason to suppose that he was nothing of the sort. 43. Having regard to the matters referred to by Mr Clough there must be a large element of uncertainty as to whether the Judge could properly have reached the conclusion he did. It may perhaps be the case that none of the matters specifically referred to by Mr Clough would of itself justify us in calling in question the way the Judge dealt with the matter. However the cumulative effect of all these matters is such that we consider that Mr Clough has succeeded in surmounting the very high threshold of convincing us that this is a case which calls for the intervention of this court. In our view if the Judge had properly weighed and considered all of these matters he would have been driven to the conclusion that at the time of the accident the applicant was a sub- contractor and not an employee and accordingly his claim should have been dismissed. 44. We heard submissions from counsel on whether we should order a retrial in the event that we were satisfied that the Judge had erred. Having given the matter due consideration we have come to the conclusion that no useful purpose would be served by this as it would inevitably be the case that the applicant would not succeed on any retrial of his claim. 45. In the time which was available we were unable to hear the issue on quantum. As it transpires it is not now necessary to hear this. 46. The appeal is allowed and we make an order nisi that the respondents are to have their costs both here and below and that the applicant's costs are to be taxed in accordance with the Legal Aid Regulations.
Representation: Mr Ashok K. Sakhrani, instructed by the Legal Aid Department, for the applicant Mr Neal Clough, instructed by Messrs Simmons & Simmons, for the respondents Remarks: |
Cases cited in this judgment
Further hearings and rulings under CACV 751/2000