Wong Chun Chai v. Unitrans Transportation Co., Ltd

DCEC000053/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 53 OF 1999

Coram: H H Judge Carlson in Court

Dates of Hearing: 26 - 28 February 2001, 1 - 2 March 2001

Date of Judgment: 9 March 2001

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J U D G M E N T

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1. This is a claim for compensation by the applicant who was injured on 6 August 1998 when he was in the course of unloading a Park'N Shop container lorry which contained produce and stock that he was intending to remove into the Park'N Shop Supermarket on the Ground Floor of the Hing Man Estate at Chai Wan.

2. The applicant was born on 18 March 1983 and was therefore only 15 years old when he was injured. He is now very nearly 18. He was and continues to be a school boy, the injury having occurred during the course of the long school summer vacation.

3. The crucial issue which I am required to determine is whether the respondents, who are transport contractors engaged by Park'N Shop to perform this unloading work, were the applicant's employers at the time. He says that he had been employed by them as from the previous day, having been approached and interviewed for this position on 4 August.

4. The respondent's case is that the applicant was no more than an unsolicited substitute worker for his elder brother, Wong Chun-kit, who had taken the day off on 6 August without informing his superiors, and that at the time he was injured the applicant's presence was not known to any member of the respondent's staff because Mr Lui Wing-wah, the applicant's elder brother's co-worker, was late that morning and so he only learnt of the applicant's presence at the place of work and of his injury after the accident had taken place.

5. The factual issues in this matter have been keenly disputed in the course of a five day trial. The nature of the dispute was such that either the applicant and his brother are not telling me the truth, or that Mr Lui and the other witnesses for the respondent are being deliberately untruthful. In order to understand the factual dispute, it is necessary for me to recount, in summary form at all events, the respective accounts that have been put forward.

6. In order to succeed, the applicant must show on the balance of probabilities that his injuries by accident arose out of the course of his employment with his employer. (See section 5(1) of the Employees' Compensation Ordinance, "the Ordinance"). The expression "employee" is given a wide definition in section 2(1) of the Ordinance. In its material parts the definition is as follows:

"...the expression "employee" means any person who has ... entered into or works under a contract of service ... with an employer in any employment, whether by way of manual labour, clerical work or otherwise and whether the contract is expressed or implied is oral or in writing."

7. As will become apparent in a moment, the applicant says that the contract of employment was an oral one, there being no written agreement, and it was expressed, he having been told that he was being employed to do this work. No issue arises on this, but I draw attention to these two parts of the Ordinance to indicate how the case fits into the scheme of the legislation.

8. I now turn to the evidence.

9. The applicant's evidence as to how he came to be employed by the respondents appears at pages 216 and 217 of the bundle. He has been cross-examined by Mr Lin, on behalf of the respondents, as to how precisely he came to be employed. He has explained that after unsuccessful attempts to find work as a waiter at a number of restaurants he decided to look at the notice board at his local Park'N Shop Supermarket on the Hing Man Estate where he has shopped in the past.

10. He saw jobs advertised in the shop and as he was studying the notice board he says that he was approached by a man who asked him whether he was looking for a job. He said that he was. At that time he thought that the man was a Park'N Shop employee because he came from the direction of the shop although he was not wearing a uniform. He says that they then had a discussion which lasted 10 to 15 minutes. He was told that his wages would be $8,500 a month, which he accepted. He was told that he would be a transportation worker responsible for loading and unloading lorries and taking the loads into supermarkets. At this stage he believed that he would be employed by Park'N Shop.

11. The man asked him whether he wanted to help at this particular branch, but by the end of their discussions he was in fact not told which branch or branches he was going to be attached to. The man told him to return to the store the next day at 8 am and go to the entrance of the supermarket. The man, who is not one of the respondent's witnesses in the case - all three of them were in court at the time and so he was able to say that it was not one of them - did not ask him for his name, his age, nor his contact number or his address. Neither was there any discussion of working hours or holidays.

12. He did as he was asked and so on the following morning, 5 August, he appeared at the entrance to the supermarket. He had been expecting the man who had interviewed him to be there but instead "Brother Wah" appeared, this being Mr Lui Wing-wah. He asked him whether he was the transportation worker and he said that he was. Clearly, if this is correct, Mr Lui had been expecting him to be there. He was taken to the car park above the supermarket where the lorry was parked. There were no formal introductions. Mr Lui told the applicant that he was called Ah Ko and the applicant did not give Mr Lui his full name. They got down to work quickly. No training was given. He was told that he had to assist in unloading the lorry. The work finished at about 11 am.

13. They then took public transport to Mong Kok where lunch was eaten and from there to Sha Tin and on to Ma On Shan where they unloaded another lorry at a supermarket there. They worked there from about 2 to 3 pm until about 6 or 7 pm, had supper and then went on to another supermarket also in the Ma On Shan area where another lorry was unloaded. They finished at about 11 pm and he and Mr Lui parted company at Mong Kok and the applicant then went home getting there at about midnight.

14. He says that he and Mr Lui did not have much conversation during the day. They both had lunch and supper together. There had been no discussion as to the terms of his employment. He says that he was surprised but not disappointed by the long hours that he had had to work. By the time that he got home, his parents were asleep, he did not speak to them. He left home the next day at about 9 am and they were still asleep.

15. Under further cross-examination he said that he was not happy with the long working hours, but that he was disposed to carry on because he needed the money to help finance his studies. He says that he would not have told his parents what work he was doing by way of employment, he would just say that he had been out.

16. As to the date of the accident, his evidence, again under cross-examination, is that he was injured at about 10 o'clock. He had worked there alone for about an hour. He had loaded and unloaded himself. He says that the driver had unlocked the lorry for him. He says that he was expecting to meet Mr Lui when he arrived, but that he was late. A lady member of the Park'N Shop staff came and told him to start unloading. He told her that he would. He says that he asked the driver to unlock the lorry so that he could start unloading. On the fourth load he sustained his injuries. The course of the accident and his painful and unpleasant injuries are described at pages 217 to 219 of the bundle.

17. It has been put to him that he was working there as a substitute for his brother, which he denies. According to him, it was only when his brother visited him in hospital that he discovered, for the first time, that his brother had been in this employment just days beforehand and that he had resigned on 4 August. He also denies the suggestion put to him by Mr Lin that he had been out on this job with his brother and with Mr Lui a few days before 6 August to pass the time of day and to lend a hand informally during the course of the day. His evidence is that he had no knowledge of his brother's employment and that he had worked as an employee of the respondents on 5 and 6 August.

18. The elder brother, Wong Chun-kit, has given evidence. He has adopted his two witness statements at pages 222 and 237. He is 21 years old, and for about one and a half or two years he had worked in a canteen located at the Hing Man Estate. He left that employment in July 1998 and became employed by the respondents shortly afterwards. He says he found the job by looking at the Park'N Shop notice board at the Hing Man Estate. In his statement at page 223, he says that, "Following the notice, I contacted somebody from the respondent at the Chai Wan Park'N Shop. After a short interview I was recruited by the respondents."

19. He has put it somewhat differently in cross-examination as follows, "When I was reading the notice, someone asked me if I was looking for a job. He came from Park'N Shop. He wore no uniform. He did not tell me his name. We discussed the salary, holidays, working hours and location of work: on holidays, four days a month; salary, $9,000 a month." He has also told me that the person did not tell him who the employers were, that he was never asked for his personal details nor did he give them and that this was the case throughout his employment. All the employer knew was that he lived on the Hing Man Estate. He has no recollection of the starting date of his employment. Throughout his brief employment with the respondents, he only met Mr Lui who he worked alongside save for a Mr Chow to whom he tendered his resignation on 4 August.

20. He has been cross-examined on the basis that he had met Mr Lui who had gone to the canteen where he had been working and that they had spoken to each other on occasions. There he had indicated to Mr Lui and a fellow workman that he was fed up with his job at the canteen and that he was looking for a change. As the fellow workman was due to leave, a vacancy would become available, so he came to be employed in that way. He says that this version of events is untrue.

21. As to whether his family knew of his circumstances, he says that he did not tell them that he had left the canteen and had gone to work for the respondents, nor had he told them that after a few days he had left that employment. It had come as a complete surprise to him that a younger brother had been doing precisely the same job that he had resigned from two days beforehand when he had injured himself. This, he learned for the first time at the hospital when he visited the applicant on the afternoon of 6 August.

22. As to the circumstances of his resignation, his evidence is that he did not care for the hard work and long hours, and so in the evening of 4 August he went to see a Mr Chow at Sham Shui Po to tell him that he was leaving with immediate effect. This was accepted and Chow told him that his wages would be sent to him in due course. An amount of $1,962 was paid into his account on 21 September 1998, (see page 175A), based on calculations that appear at page 175, on a monthly salary of $8,500, not $9,000, giving a starting date of 30 July and a finishing date up to and including 5 August.

23. The final witness called for the applicant was his mother, Madam Lo Yuk-lan. The general purpose of her evidence is to show that she had no knowledge of either of her sons' employments with the respondents until after the event. Her statement is at page 228. Then almost as an after thought she was asked whether she had seen Mr Lui at the scene of the accident. She says that she had and that he had apologised to her and that he had offered her $3,000 which had offended her. As to this evidence, it is convenient to recount here that Mr Lui accepts that he spoke to Madam Lo. He thinks it was later in the day when he went to Eastern Hospital. He says that he did apologise because he felt partly to blame because he was late in getting to work that day and it was during this period that the applicant was injured.

24. This, therefore, is the applicant's case, although there is other documentary evidence which I will need to refer to, but I can conveniently do this in my consideration of the respondents' witnesses' evidence.

25. The main witness for the respondent is Mr Lui because his evidence bears directly on the central issue of whether the applicant was employed by the respondents. His statement is at page 259. He started with the respondents in about June 1998. He no longer works for them. He started working with a man called Ah Wai. He says two men was all that was required to do this unloading work. During meal breaks, he and Ah Wai would from time to time go to a canteen at the Hing Man Estate and it was there that they met Wong Chun-kit, the applicant's elder brother. In the course of talking to him, they learned that he was fed up with his work at the canteen and looking for a change. Ah Wai was due to move on and so a vacancy became available for someone to work alongside him. He expressed interest in the job and so he was introduced to Ah Kin, Mr Chow, to whom I have already made reference, and so he became employed to work for the respondents and to work with Mr Lui.

26. Mr Lui remembers that he started a few days before the applicant was injured on 6 August. He recollects that Wong Chun-kit was living on the Hing Man Estate and that the applicant had come to visit his brother when they were working at the Hing Man Park'N Shop. He was told that the applicant was on his summer holidays. Whilst there, the applicant would on occasions lend a helping hand with the work, but this was done in a casual manner. This was when they were at Hing Man Estate. On one occasion he also accompanied them to one of the two supermarkets at Ma On Shan. In his statement he has also said that on either 4 or 5 August Chun-kit had mentioned that his younger brother might come and take his place on the 6th because he would not be coming to work on that day. He says that he had not paid much attention to that and he had not been asked to inform anyone of this. He was late on the 6th and upon his arrival he saw the aftermath of the accident that had occurred. Following this accident, Chun-kit did not return to work, and he (Lui) left the respondents' employment in September that year to go and work for Park'N Shop.

27. The two other witnesses called for the respondents, Mr Wong Chi-fai and Mr Tony So, who is the head of the respondents' day to day operations and a partner of the company, did not have any direct dealings with the events of 6 August but despite that, their evidence has taken up much of the trial. Their importance to the applicant's case is that both have given statements to the Labour Department who investigated this matter and, in Mr So's case, also to a judge at this court when he was appearing on behalf of the respondents before they went to solicitors.

28. Mr Wong Chi-fai's statement is at page 252. He has given a detailed explanation as to how the company operates and as to how certain individuals, including himself, have a dual capacity in the company both as employee, as to part of their functions, in his case, as a driver, and as an independent contractor in relation to their recruiting and directly employing labour to do the unloading work and paying that labour, and also making a profit out of that by receiving more for these services from the respondents than the salaries that they pay their labour.

29. Mr Sakhrani, for the applicant, with his customary thoroughness, has cross-examined both Mr Wong Chi-fai and Mr So in great detail about these arrangements. He has also taken both of them through their statements to the Labour Department. Mr Wong Chi-fai's statement is at page 198, and on a true reading of it there is nothing there which materially contradicts his oral evidence nor his witness statement.

30. As to Mr So, there is no doubt that on a number of matters there are statements which, if unexplained, contradict the respondents' case that the applicant was not employed by them. Form 2, a statutory report form following an accident at work, is at page 193. It is signed by Mr So and in it he has described the applicant as the respondents' employee at the time of the accident. His evidence is that once the Labour Department became involved in the investigation of the incident, that although from his enquiries it was clear that the applicant had not been employed by his company, he had become somewhat confused by the Labour Department's line of enquiry, although in his statement to them (see page 188) he got over the message that the applicant was not his employee.

31. Nevertheless, Miss Lam from the Labour Department, pressed him on the telephone to return form 2 which left him in a state of confusion. He had little information to give. He turned to the company's insurance agent, a Mr Lee, who advised him to fill in as much as he could. He provided the name of the applicant as the employee because it was he who had turned up for work and it was he who was injured.

32. The other matter upon which he has been closely cross-examined relates to what he told Deputy Judge Law when this case was first "called over" in court on 7 July 1999. The transcript of that hearing starts at page 105. Deputy Judge Law wished to understand the respondents' case and make appropriate orders as to the filing of the applicant's list of earnings. As a result of these exchanges, the judge considered that Mr So was admitting liability and entered judgment. Thereafter, there was an appeal to the Court of Appeal and that order was set aside. Mr Sakhrani says that the transcript, taken as a whole, shows that the respondents had admitted the fact of employment. So it is for these reasons that I am required to have regard to these post-accident statements by these two witnesses.

33. Apart from these matters, I have not derived much assistance from the other evidence of Mr Wong Chi-fai and Mr So as to the employment arrangements of the other employees, nor as to the company's insurance policy.

34. This case, as I indicated at the start of my judgment, turns on a simple question of fact. Had the respondents employed this young man to do this work on 6 August? I have considered the evidence as a whole and I have come to the firmest conclusion that they did not. I disbelieve the applicant and his elder brother, Wong Chun-kit. Mr Lui I consider to be an entirely honest and straightforward witness. I am entirely comfortable with the account that he has given.

35. The starting point for my findings on the evidence is the alleged recruitment of the applicant on 4 August whilst he was looking at the Park'N Shop notice board. On the applicant's own case his brother, Wong Chun-kit, had not tendered his resignation to Mr Chow until late in the evening on 4 August. This was a two man job, Mr Lui and Chun-kit. On 4 August, so far as the respondents were concerned they had no vacancies for the Hing Man Estate job to which the applicant says that he was assigned. It is, therefore, inherently improbable that the respondents would have been looking for staff on 4 August.

36. I find as a fact, therefore, that on this fundamental issue, the circumstances by which the applicant says he was employed is not true. He has not told me the truth. From that finding, it is difficult to feel secure about anything else that the applicant and his brother have had to say. I also find unreal the notion that the applicant and his brother who live in a small flat with their parents should be so unforthcoming about each other's jobs. I cannot accept that Wong Chun-kit would not have told his family that after a one and a half or two year stint in the canteen that he had changed his employment to work for the respondents.

37. I am satisfied that the motive for these young men not telling the truth on this matter is to attempt to deal with the very major coincidence that the younger brother, unknown to the elder brother or their parents, had become employed in precisely the same job that the elder brother had allegedly just resigned from. I cannot accept this evidence. When one places these accounts alongside the highly impressive evidence of Mr Lui, I am left in no doubt that Mr Lui is telling me the truth in every aspect of his testimony. Clearly, what has happened here is that the applicant who had accompanied both Mr Lui and Chun-kit on the job on one or two previous occasions, and was therefore fairly familiar with the ropes, was asked by Chun-kit to fill in for him on the 6th. He knew the drill, and despite Mr Lui's absence at the start of work on the 6th, he says that the lorry driver opened the door for him and he started unloading.

38. There has been evidence about a password that it involved in opening the lorry but this is neither here nor there. The applicant's case is that the driver opened the lorry for him. He was after all a familiar face there, having previously helped out informally at the Hing Man Estate.

39. In coming to this conclusion, I have also taken into account Mr Wong Chi-fai's and Mr So's evidence. The central theme of their separate accounts to the Labour Department was that the elder brother was the employee and not the applicant and the transcript before Deputy Judge Law shows that Mr So was at pains to point out that the employee was the elder brother. Against that background, I also accept Mr So's explanation as to how he came to put in the applicant's name in form 2 as the employee. I have no doubt that the applicant was never employed by the respondents. I am afraid what has happened here is that once the applicant sustained these serious injuries he was put up by his elder brother, who I found particularly untrustworthy, to make up this false account in an attempt to get compensation in these proceedings.

40. This application fails and it must therefore stand dismissed.

41. For the sake of completeness, let me observe that had I found for the applicant, I would have found a 3 per cent disability. All the figures are agreed between the parties save for this percentage. In coming to this view, I have had regard to what both doctors have said. The difficulty in this matter is that this applicant is a young man. By all accounts he is not an able pupil at school. He is seriously overweight. I do not believe, having regard to that and his academic shortcomings, that he would have been able to enter the police, which he says he wanted to do, until he sustained these injuries. The percentage loss in my view is very small. He will be able to achieve just about everything that he would have been able to notwithstanding these injuries, consequently the modest percentage that I would have arrived at had I been put to it to make an award.

42. As to costs, I would have thought inevitably costs will need to follow the event. The respondents will have their costs of this action, to be taxed if not agreed. I would also have thought that this is a case which is fit for counsel, so there will be certificate for counsel, together with an order for Legal Aid Taxation of the applicant's costs.

Representation:

Present: Mr A Sakhrani, instructed by Szwina S K Pang & Co., assigned by the Legal Aid Department, for Applicant

Mr Kenny Lin, instructed by Messrs Tam, Pun & Yipp, for the Respondent

Present: Ms Szwina Pang, of Szwina S K Pang & Co., assigned by the Legal Aid Department, for the Applicant

Mr Derek Lam, of Messrs Tam, Pun & Yip, for the Respondent

Leave to appeal by the respondent granted by Court of Appeal. Please refer to HCMP7163/1999 dated 1 February 2000