Wong Tai v. The Universal Press and Others
Read the full judgment text of DCEC 49/1979 on BabelCite. This District Court judgment was delivered on 21 December 1979.
1. On the 25th January, this year, whilst travelling with rolls of paper in a lorry, the late coolie husband of the applicant was injured in a traffic accident and thereby died on the same day. The deceased left surviving him a father of 71, a widow, the applicant, of 37, two sons and a daughter aged 13 to 18. The children are all students. The parties seem to be in agreement that total dependency existed in the surviving father and children of the deceased or, at least, in some of them with the
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DCEC000049/1979 Workmen's Compensation - no single conclusive test for "a contract of service or for services" - a bird's eye view to be taken of every facet - local decisions on coolie cases considered. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION WORKMEN'S COMPENSATION CASE NO. 49 OF 1979 -----------------
----------------- Coram: Judge Liu, Q.C. in Court. Date of Judgment: 21 December 1979 ----------------- JUDGMENT ----------------- 1. On the 25th January, this year, whilst travelling with rolls of paper in a lorry, the late coolie husband of the applicant was injured in a traffic accident and thereby died on the same day. The deceased left surviving him a father of 71, a widow, the applicant, of 37, two sons and a daughter aged 13 to 18. The children are all students. The parties seem to be in agreement that total dependency existed in the surviving father and children of the deceased or, at least, in some of them with the applicant herself being a partial dependant. If ever liability is established, the maximum statutory compensation of $60,000 will have to be assessed and awarded. 2. Liability is disputed by the respondent company, The Universal Press, on the ground that the deceased was not a workman of the company. 3. There has been no real dispute on facts, but the legal consequence is subjected to different interpretation. 4. The 2nd respondent and the 3rd respondent, against whom this application was abandoned, were called on behalf of the applicant. It transpired that the 3rd respondent Yuen (PW4) had, for some years, been delivering rolls of paper for the respondent company. He was accepted as a responsible labourer with integrity. Thus, whenever possible, such transportation of paper was assigned to Mr. Yuen. It was understood in the course of dealings between Mr. Yuen and the respondent company that the standard labour charge was to be calculated at $4 per roll with lorry hire at the usual rate. Mr. Yuen's evidence on the lorry charges was ambiguous. At one stage in his cross-examination, Mr. Yuen seemed to suggest some form of agency in the sense that lorries would be found for the respondent company and thereafter "the two parties" were left to negotiate, with him collecting payment on behalf of the lorry owners after completion. But the effect of the combined evidence of Mr. Yuen and Mr. Ha (DW1) is that Mr. Yuen had been given the usual allowance for lorry hire. If an increase was contemplated, prior approval would have to be obtained from the respondent company, otherwise no further allowance would be paid. The respondent company would not interfere with the identity and number of vehicles to be engaged. Only an allowance for lorry hire was given to Mr. Yuen, and the respondent company would assume no contractual relationship with or supervision over the hired lorries. Whilst Mr. Yuen was not expected to make a profit out of the lorry charges, the respondent company was quite unconcerned as to whether in fact Mr. Yuen was himself charged the same, more or less lorry hire. 5. Turning to the labour side of the undertaking, Mr. Yuen told the Court that he would that he would endeavour to manage it alone; failing which he would seek assistance first from his regular forki, the 3rd defendant Lee Kai (PW3), with additional coolies from the same locality if required. The rolls of paper were to be lifted from the barge paid for by the respondent company on daily basis. Efficiency in early completion and avoidance of damage are matters of economics for the respondent company. Thus, Mr. Yuen was selected for his responsibility and integrity. However, the respondent company never interfered with the manner in which delivery was effected, in particular, the identity and number of coolies, the assignment and nature of work to each, the amount and time for payment of their remuneration, the hauling system for lifting cargo from the barge and loading onto the lorry, the number of and the load for each of the lorries or the route taken. these decisions were made in consultation between Mr. Yuen and Mr. Lee. 6. The respondent company supplied Mr. Yuen with no equipment. Mr. Yuen himself provided the necessary instruments, for example, in the instant case, scissors. The coolies engaged by Mr. Yuen would come with their usual piece of cloth, bamboo pole and hooks. The transportation work entailed no more than the supply of labour requiring hardly any supervision, but the clerk of the respondent company, Mr. Ha, would spot-check progress to ensure early completion and inspect damage to the goods, if any. As related by Mr. Yuen, the object "was simply to have the work done" without any control by the respondent company. The notification of the approximate arrival time of the barge with usual instructions for delivery to a designated location was all that had to be given. 7. In this case, Mr. Yuen did not even personally engage the deceased. The deceased was recruited by Mr. Lee Kai. Two lorries belonging to one CHEUNG Sai-choy were hired. It was no business of the respondent company's whether or not an additional or third coolie would be employed, and the company was unaware that the deceased had been taken on; nor did the respondent company have any knowledge of the nature of work allotted to the deceased or his remuneration. 8. On the day of the accident, according to Mr. Lee, no staff of the respondent company was in attendance. Mr. Ha told the Court that if the entire responsibility of Mr. Yuen was to be sub-delegated at his request, the respondent company would rely on Mr. Yuen's judgment and accept such sub-delegation but that he, Mr. Ha, would personally check if the performance was equally satisfactory. Mr. Ha further told the Court that if ever Mr. Yuen would inform him of any misconduct of a coolie in his gang, he would advise Mr. Yuen to dismiss or not to recruit the same man again so as to reduce risk to the respondent company. This is no power of selection or dismissal but an economic sanction for the protection of the respondent company, and Mr. Yuen would unlikely be given any further assignment if he took no heed of such gentle persuasion. 9. On the surface, some conduct of the respondent company may be open to a construction favourable to the applicant. Mr. Lee testified that all 3 coolies "had contact with Universal Press". After the accident, Mr. Yuen communicated with the son of the proprietor of the respondent company and requested him to visit the scene of the mishap to inspecting the goods and view the injured, but Mr. Lee was of the opinion that notice was given to the respondent company merely for the purpose of inspecting possible damage to the paper. $1,000 funeral expenses were paid to the family of the deceased, and the deceased's daughter has been and is still being subsidized $120 per month in her school fees. There is no evidence explaining these payments. However. I do not find these unguarded statements and unexplained payments as being cogent enough to warrant any conclusion to be drawn. 10. The law on the subject has been fairly settled. On similar facts in the 1965 case of CHAN Shek-kiu v. Hip Hing Printing Press & another(1), it was held that the deceased coolie was an employee of the printing press firm. But CHAN Shek-kiu's case was decided on the force of Bobbey v. Crosbie & Co.(2). The learned judge in CHAN Shek-kiu's case seemed to have misdirected himself on the ratio decidendi in the Bobbey case which was put in its proper perspective by the Full court in WONG Po-sin v. New Universal Paper Co. Ltd.(3). Blair-Kerr S.P.J. distinguished the case of Bobbey with the aid of his following quotations therefrom, per Lord Loreburn:
The Senior Puisne Judge had foreshown his conclusion earlier at page 64:
11. Thus, the case of CHAN Shek-kiu can offer no guidance. 12. In 1971, a claim on quite dissimilar facts came before the Full Court in WONG Man-luen v. Hong Kong Wah Tung Stevedore Co.(4). where a delivery note was given to a workman with specific instructions for execution with the claimant and, if necessary, two extra coolies. Instructions were also given to hire transportation on the company's behalf, and remuneration for the work gang was to be agreed after completion according to the time and complexity of the operation. The workers divided the remuneration to be so agreed in equal shares. It was concluded that the learned District Judge failed to consider the element of indirect supervision. Whilst acknowledging the absence of de facto control, the Full Court readily made its own finding of "a measure of supervision" in the sense that there were express instructions for engaging the injured workman and a specific number of additional coolies as well as for hiring vehicles on behalf of the respondent firm. The absence of any possibility of loss in a commitment undertaken by the coolie gang without complete independence was considered "the fundamental test: in the main judgment delivered. 13. Two years later in 1973, the special facts in WONG Man-luen's case were highlighted in the decision of WONG Po-sin's It is to be noted that the facts in the WONG Po-sin case closely resemble the very facts in the instant case. In WONG Po-sin's case, rolls of paper were to be delivered by lorries from the godown to a given address. Transportation was hired by the coolie gang. Trolleys were used for loading onto the lorries, and they were tools of the coolies themselves. The respondent company supplied only two wooden planks. A coolie sustained fatal injuries. The respondent company had no direct dealings with the deceased coolie. Remuneration was agreed to be calculated at $6 or $7 a roll. The respondent company had no say in the hiring of the lorries or the assembling of the work gang. The loading of the rolls of paper was not subjected to the control of the respondent company. The respondent company's godown keeper simply identified the consignment to be delivered. The Full Court upheld the decision of the lower court that the deceased coolie had no contract of service with the respondent company. In the WONG Po-sin case, at page 72, Blair-Kerr S.P.J. expressed doubts on the propriety of fact finding by an appellate court. The learned Senior Puisne Judge was invited to consider divers criteria but declined to show preference to "any particular test" and simply balanced the question posed "on the whole of the evidence". The proposition advanced by Cooke J. in the case of the Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance(5) was, inter alia, examined:
The test urged in the Ready Mixed Concrete case was formulated on the basis of an American decision in United States of America v. Silk(6) which laid emphasis not on "power of control" but on "economic reality". The learned Senior Puisne Judge detected in the Silk case some limited degree of integration of the workmen's undertaking into the employer company, and he drew attention to the difference in the nature of the claim, on facts and in judicial aspirations between the Courts in America and those within our jurisdiction. The Full Court was also led through the comments of Denning L.J. in Stevenson, Jordon & Harrison Ltd. v. Macdonald & Evans(7) which described "integration" as no more than "one feature":
Various tests were paraded before the Full Court. In the end, no particular test was favourably received by the learned Senior Puisne Judge who was content to lend colour to the observations of Professor Atiyah:
One must be wary of the proclaimed excellence of each test by its author, and every effort must be made to take a bird's-eye view of all the relevant facets as did the learned Senior Puisne Judge in his application of the twelve guidelines enumerated by Mr. Rear. 14. For a general survey, I will also first examine the facts in this case under these twelve heads:
15. The respondent company was not concerned with nor interested in the number, identity or remuneration of the coolies in the work gang. There was no supervision or control over the gang or the deceased by the respondent company which came to know of his existence after his death. Indeed, no one would have been more surprised than the deceased if it had been put to him that by his collaboration with the other coolies he could be integrated into the business of the respondent company. Even to-day, Messrs. Yuen and Lee would not cherish the prospects of losing their trade independence and would be taken aback in awe and disbelief by a like insinuation. On the overall evidence, this is an obvious case in which the deceased coolie was not a "workman" of the respondent company, Consequently, the application must be dismissed, and I will now entertain submissions on the question of costs.
(1) 1965 D.C.L.R. 93 (2) (1916) 85 L.J.K.B. 239 (3) 1973 H.K.L.R. 59 at p.65 (4) 1971 H.K.L.R. 390 (5) (1968) 2 Q.B. 497 at p.p. 184 x 185 (6) (1946) 331 US 704 (7) (1952) 1 T.L.R. 101 C.A. at p.111. |