Ng Shing-chun v. Tye Dry Cleaners & Laundry Co Ltd and Others

HCA001004/1981

No. 1004 of 1981

IN THE HIGH COURT OF HONG KONG

BETWEEN

Coram: Hon. Penlington, J. in Court

Hearing Dates: 6th & 7th December 1983

Date: 7th December 1983

Date of handing down judgment: 27th February, 1984.

___________

JUDGMENT

___________

1. The plaintiff, NG Shing-chun, on the 5th of January 1980 was employed in a factory at Hung To Road, Kowloon. He gave evidence that about 2.50 p.m. on that day he was on his way home and had crossed Hung To Road to Hoi Yuen Road in order to catch a bus. As was apparently usual there were stationary goods vehicles parked on both sides of Hung To Road and he had to walk between them. After stepping out on the main entrance of his factory he went across the road and as he was about to reach the other side he was struck by a goods vehicle driven by the 2nd defendant and owned by the 1st defendant. He said that he immediately lost consciousness and did not recover until he was in hospital. The vehicle came from his right and he did not see it before the accident. He agreed that Hung To Road is a two-way street.

2. The plaintiff said that the injuries caused him to stay away from work for considerable time and he lost working capacity in that he could no longer lift anything heavy. Because of that he could not go back to his old job in the plastic factory. He was aged 61 at the time of the accident. He said that he was away from the 6th of January 1980 until the 1st of July 1981 when he started working as a caretaker for the Carrian Group. That job has also now ceased but not due to any fault of the plaintiff. He said he was earning $1,450 a month with Carrian when it went into liquidation but when he first started his wages were $1,100 per month. He gave evidence that a plastic worker in his factory was earning then about $100 per day and he did not have any days off, therefore would make about $3,000 per month. When cross-examined he said he worked between eight and four but on the particular day in question was going off early. He said he did not often do that. His evidence about his earnings was somewhat vague. A certificate from his previous employer was produced by consent and this said he earned between $75 and $85 per 12 hour day on a piece-rate basis.

3. The only other evidence in relation to the actual accident to be given by Police Constable KEUNG Chun-man who said that he attended the scene after the accident and prepared the plan which was produced. He said that when he arrived there were lines of goods vehicles parked on each side of the road. He said that the two triangles shown on the plan represented a traffic island. It clearly would have been safer for the plaintiff to have crossed the road where the traffic islands were, some 45 metres to the place where the accident took place.

4. I was satisfied from this evidence that the 2nd defendant was negligent in not seeing the plaintiff in time to stop but that there was a substantial degree of contributory negligence. I assessed this contributory negligence at 40%.

5. It was the case for the 1st defendant that it was only the owner of the vehicle and that it was in fact hired out to the 3rd defendant, CHENG Ting, who was an independent contractor, at the time of the accident.

6. Evidence was given by Mr. KWONG Pak-wing who said he was the Assistant Manager of the 1st defendant. He said that the goods vehicle BU 1041 belonged to the 1st defendant and was used to transport table cloths to and from various restaurants with which the 1st defendant had laundering contracts. He said that he arranged for transportation with the 3rd defendant and was authorized by the 1st defendant to do so. He said that the 1st defendant paid the 3rd defendant and he attended to payment of the other drivers including the 2nd defendant. He said he paid the 3rd defendant 10% of the total turnover of the 1st defendant and the 3rd defendant hired his own drivers. He said that the 3rd defendant was responsible for maintenance of the vehicles and organizing the routing by which they collected the laundry. It was agreed that the vehicle was insured for 3rd party risks in the name of the 1st defendant. He said that for some reason they had not informed the insurance company at the time of the accident. No doubt for that reason liability has been declined by the insurance company.

7. He agreed that there were five drivers employed including the 3rd defendant and that the turnover of the company was about $20,000 per month. That meant that the 3rd defendant would receive about $20,000.

8. The 3rd defendant CHENG Ting said that he had been working with the 1st defendant for about ten years. He said there was a total staff of five and he said he was "the representative of the drivers". He agreed he received 10% of the gross turnover and this was to pay all the drivers. He said that in addition to the drivers, some casual labourers were also employed. He agreed that in fact the 5 drivers acted as a partnership - each receiving about $3,000 per month. He denied that the 2nd defendant was his employee and said he regarded him as his partner at the time of the accident. He agreed that he did not use the 1st defendant's vehicle for any other work apart from collecting and delivering their laundry. He did not work for anybody else at all.

9. He said he collected the laundry from 30 different restaurants. Some were on daily basis, some twice a day. The 1st defendant told them how often to collect the laundry and when to collect them.

10. The 2nd defendant did not enter an appearance or give evidence.

11. I am satisfied that the 2nd and 3rd defendants were not sub-contractors of the 1st defendant but were in fact employees. In Australian Mutual Provident Society v Chapland and another ⁽¹⁾ the Judicial Committee of the Privy Council set out the principles under which the court should determine whether or not a person was an independent contractor. This case was followed in the recent decision of Narich Proprietary Limited v The Commissioner of Pay-roll Tax⁽²⁾ . There Lord Brandon said that the court should look to the terms of the contract as a whole to see whether they created the relationship of employer and employee. The main factor to be considered being whether the employer could control the manner in which the work was to be done. I am satisfied that in this case the 1st defendant did control the 3rd defendant and the other drivers as to the manner in which their work was to be done and that the only real difference between them and ordinary employees was that they were paid a commission instead of wages and they had to maintain the vehicles.

12. The vehicles were owned by the 1st defendant and insured by them. They were not used for the purposes of anybody else's business and the 3rd defendant and the other drivers did not work for anybody else. The 1st defendant dictated how often collections were to be made from each restaurant.

13. I am satisfied that the 2nd defendant was driving the vehicle on the day in question in his capacity as an employee of the 1st defendant and there will be judgment for the plaintiff against the 1st defendant.

14. I assess damages as follows:

15. The plaintiff is entitled to interest on all damages except those for future loss of earnings. This will be at 2% for general damages and 14% for all other special damages from the date of the issue of the writ.

16. The plaintiff is entitled to his costs, to be taxed in accordance with the Legal Aid Regulations.

(1) 1978 18 A.L.R. 385

(2) The Times December 6th, 1983

Representation:

J.G. Stevenson instructed by Tsang Chau & Shuen for the plaintiff

Miss H.C. Wong (Lau Chan & Ko) for the 1st defendant