Lai Chi Pon v. Toto Steel & Iron Works Ltd. and Others

HCPI001149B/1995

1995, No.P.I.1149

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon Mr Justice Cheung in Court

Date of hearing: 5 March 1997

Date of decision: 5 March 1997

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D E C I S I O N

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1. The issue before me is who was the employer of the Plaintiff : whether it was the 1st Defendant or the 3rd Defendant.

2. In his witness statement, the Plaintiff stated that :-

"9. Prior to the accident I always worked for Mr Yeung Hou. I initially started working for him in about 1981. I was introduced to work for him by a mutual friend. When working with Mr Yeung Hou we would do internal renovation work for mainly shops and offices. Between 1981 and 1987 Toto provided us with regular work.

12. It is difficult for me to say who exactly was my employer although I regarded my employer as being Mr Yeung as it was he who paid me and he who often gave me my instructions.

13. In doing construction work of the nature that I was doing at the time of the accident, it was common for there to be a group of workers who would work together as and when required. They would normally be recruited by and work to the direction of one particular person, who could be regarded as the "Gang Leader". I worked in such a group, and my "gang leader" was Mr Yeung Hou.

14. It would be Mr Yeung who found the work for us and told us when and where to do the work. He would often be at the site and sometimes supply plaster and tiles depending on the job. If we were doing a small job then Mr Yeung would only supply us workers. If it were a big job he would also supply tiles and plaster. At the time of the accident we were doing a small job and Mr Yeung was not present all the time. He had other jobs to oversee.

15. We would also always receive our wages direct from Mr Yeung Hou, even when it was clear that we were employed as a group by a Contractor.

16. For simple plastering work there are not many tools involved. Each worker would have their own personal tools and I had my own.

17. If a project required special equipment this would normally be provided by the Contractor at the site.

18. As we were experienced workers we normally did not need much direction as to what work to do, and how to do it. If any directions were given, these would normally be given by the staff (normally a Foreman) of the Contractor at the site. There was a foreman always present at the scene of the accident and he would give and gave orders to us and other workers."

The Plaintiff also claimed that the 3rd Defendant sometimes gave him money at festival times, but he was not sure if this was because of work or friendship.

3. The 3rd Defendant, who maintained that he and the Plaintiff were employees of the 1st Defendant, was dead and the personal representative of the 3rd Defendant had not taken part in the proceedings.

4. The 1st Defendant had chosen not to defend the action.

5. On the evidence given by the Plaintiff which was not challenged in cross-examination and which was further supported by the information provided by the factory inspector that the Plaintiff informed him that the 3rd Defendant was his employer, I have no difficulty in finding that the 3rd Defendant was the employer of the Plaintiff. The matters that need to be considered were the Form 2, i.e. Notice by Employer issued under the Employee's Compensation Ordinance by the 1st Defendant; the Agreement reached between the 1st Defendant and the Plaintiff and the employees' compensation proceedings instituted by the Plaintiff against that 1st Defendant which was settled on a without admission of liability basis.

6. It is not necessary for me to make a finding on this issue but the picture that emerged was that the 1st Defendant admitted to be the employer of the Plaintiff to overcome the problem that the 3rd Defendant did not have insurance coverage for his employees. The documents I have referred to obviously contained untrue statements. For example, the Plaintiff was described as a iron worker doing iron work at the time of the accident whereas in fact he was a plasterer doing plastering work and that he was earning $3,000 instead of $5,200. These were done, in any view, in order to bring the Plaintiff under the 1st Defendant's coverage for its three steel iron workers who were described as earning $3,000 in the insurance policy. The Plaintiff denies that he was involved in the collusion and I must say that there is no evidence that he was involved. He stated that he was not sure about the employment relationship.

7. As to the employees' compensation agreement, there was no reason for the 3rd Defendant to pay nearly $40,000 to the Plaintiff if he was not the true employer. Mr Bharwaney also referred to the accounts showing the payment of $734 as casual worker wages by the 1st Defendant to the 3rd Defendant when in fact it was the 3rd Defendant's share of additional payment to the Plaintiff.

8. Likewise, although the Defence by the 1st Defendant admitted that the Plaintiff was its employee, no weight should be attached to the so-called admission. In the light of the evidence, this must be an untrue statement.

9. The complaint letter by the Plaintiff of 10 March 1987, although referring to the 1st Defendant as the employer, gave no indication why the 1st Defendant was his employer. On the contrary, the letter contained information indicating that the 3rd Defendant was the employer.

10. I find on the strength of the evidence before me that the 3rd Defendant was the true employer of the Plaintiff.

Representation:

Mr Michael Ozorio Q. C. and Mr Victor Tulsi Gidwani, inst'd by M/s Hoosenally & Neo, for the Plaintiff

1st Defendant Toto Steel and Iron Works Ltd., absent

Mr Mohan Bharwaney, inst'd by M/s Masons & Co., for the 2nd Defendant

Cheung Chiu Tai, the representative of the estate of the 3rd Defendant (deceased), absent