Ngai Chu v. Lau Pong Chun t/a Yau Pong Construction

DCEC801/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 801 OF 2003

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IN THE MATTER OF AN APPLICATION BETWEEN

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Dates of Hearing : 22^nd, 23^rd & 24^th November 2004

Date of Handing Down Judgment : 3^rd December 2004

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J U D G M E N T

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Applicant’s case

1.The Applicant alleged that he was injured on the 24 April 2002 when he carried a pile of bricks on a wheelbarrow at the storage site of China State Construction (HK) Ltd in Shan Ha Tsuen, Sha Ha Road in UnLong, the wheelbarrow toppled and he was injured.  At the material time he said he was employed by the Respondent.  He now claims for compensation under the Employees’ Compensation Ordinance.

Respondent’s defence

2.The Respondent said that he was the contractor of a number of building sites.  He had engaged the Applicant in two of the sites as an independent contractor but not as an employee.  Further at the time the Applicant was injured he was not a contractor of the site.  Hence there was no employer and employee relation between them.

Issues

3.The issues are therefore :-

1)   Whether the Respondent was a contractor at the site at the time of the accident.

2)   If so whether the Applicant was in the employ of the Respondent or as an independent contractor.

Was the Respondent a contractor at the site at the time of the accident

4.The Applicant’s evidence is that the Respondent had employed him and others to work at various construction sites at Jordan Valley, Tiu Kang Lang, Leimukshu Phase IV, Mei Lam Estate and the Shan Ha Tsuen storage site.  He was introduced to the Respondent by a Mr. Wong For Dao.  He met the Respondent at a site in Shekipmei where he was taken by the Respondent to a site in Jordan Valley.  After Jordan Valley he was told to work at Tiu Kang Lang.  After working for 2 days he was told to go to Leimukshu site to work for 3 days and then he went back to the Leimukshu site.

5.In March or early April he was told to go with Wong Kam Shing and Ah Nam to clear the fence at Shan Ha Tsuen site.  After clearing the fence, they dug holes and planted metal bars on which iron corrugated sheets would be mounted to form a hoarding.  While waiting for the mortar to dry he went back to sites at Tiu Kang Lang and Mei Lam Estate to work.  Then he went to Shan Ha Tsuen site to build a brick wall.  However a senior engineer of China State Construction (HK) Ltd. or China Overseas Machinery Ltd. said the wall was not tall enough.  So he carried bricks to the wall to increase the height.  It was on 24 April 2002 he was injured when the wheelbarrow overturned.  He felt pain, he told Wong Kam Shing and Ah Nam.  Wong massaged his chest with bonesetter lotion and Ah Nam telephoned the Respondent.  Ah Nam told him that the Respondent told Ah Nam not to report to the Labour Department.

6.He attended the Accident and Emergency Department of Tuen Mun Hospital at 1422 hrs. on 24 April 2002.  The next day he telephoned the Respondent who told him to have days off and rest.

7.According to the Respondent he has never employed anyone, for works he contracted he either did it himself or subcontract the work to other people.  In March 2004 he had contracted work from China State Construction (HK) Ltd. in Tiu Kang Lang.  He needed help and Mr. Wong For Dao introduced him to the Applicant.  On or about 15 March 2002 he subcontracted part of the work to the Applicant at $9,600 for the job to finish on or before 31 March 2002 at the standard rate of $800 per day.  The Applicant finished the job on 28 March 2002.

8.On 29 March 2002 he subcontracted the second job to the Applicant at Leimukshu site to do the form work at $7,200.  He estimated the work would finish in 9 days.

9.The Applicant finished work on 10 April 2002.  On 15 April 2002 he again subcontracted another Leimukshu Phase IV job to the Applicant for $6,400.  He estimated the work would finish before 23 April 2002.  He finished the job on 22 April 2002.

10.After that the Applicant asked if there were other jobs and the Respondent told him there was none and told the Applicant that he would contact the Applicant if there was work.

11.He had paid the Applicant for all the works contracted.  He had never hired or instructed the Applicant at anytime to do any work at the Shan Ha Tsuen site.  He was never informed either by the Applicant or anyone else that the Applicant had met the accident there.

12.There is no doubt that the Applicant sustained injury with fractured rib on 24 April 2002 but did it occur in the Shan Ha Tsuen site as he alleged and was he being employed by the Respondent at that time?

13.The Legal Aid Department had made enquiries from China Overseas Machinery Ltd. on 4 October 2004 and the reply from Mr. Chan Wing Cheng the manager of the godown was that in early 2002 the company should have engaged the Respondent in its Shan Ha Tsuen godwon for repairs and decoration work but in the absence of record he could not be sure of the exact period and that no one was guarding the entrance.  Then the next day i.e. 8 October 2004 he wrote again informing the Legal Aid Department that from the head office’s record there was a quotation from the Respondent, a note from the their assistance supervisor Mr. Lee Tin Shun to inform the Respondent to start work and a receipt from Mr. Lee to acknowledge the completion of the work.  The date of quotation was on 2 March 2002, the notification was issued on 29 April 2002 and the acknowledgement was issued on 17 May 2002.

14.The Respondent also made enquiries from China Overseas Machinery Ltd.  By letter dated 6 August 2003 Mr. Chan wrote to the Respondent and informed him that in April 2002 there was no record of anyone by the name of the Applicant entering the godown nor the Applicant’s work record.  Again on 11 August 2004 Mr. Chan wrote to the Respondent informing him that on 24 April 2002 at the godown there was no record of any injury report and that there was no record of any work from the Respondent on that day.

15.Subpoena had been issued to both Mr. Chan and Mr. Lee to give evidence and both confirmed the contents.  Their evidence had not been shaken.

16.Mr. Nick Lee for Legal Aid made a wild allegation that their evidence were not reliable as they tried to protect China Overseas Machinery Ltd. from being involved in litigation.  With respect I disagree and reject such unfounded allegation.

17.Both Ah Nam and Wong Kam Shing did not come forward to give evidence.  I am told that subpoena was issued to Wong but he did not turn up.

18.With those records and both Mr. Chan and Mr. Lee being independent witnesses on balance I find that the Applicant was neither employed by the Respondent nor had worked at that site on 24 April 2002.  In the circumstances the application is dismissed.

19.Should this matter be brought elsewhere and my finding is reversed and that the Applicant was injured at the Shan Ha Tsuen site on that day and carried on work for the Respondent I find on balance that the Applicant was in the employ of the Respondent and not as a subcontractor as he was directed by the Respondent to perform various works including the formwork, demolition and removal of site debris.  For those works tools such as electric saws, jacks, hammers, nails and crowbars had to be used.  Some of those are large equipments which no doubt would have been provided by the Respondent.  Further his pay was on the hourly basis.

20.Should the Applicant be found to be injured while working for the Respondent at that site on 24 April 2002 the compensation is agreed as follows :--

under	s.9	$14,976.00
	s.10	$39,381.00
	s.10A	$2,985.00
	Total	$57,342.00

With interests at 4% p.a. from 24 April 2002 until judgment and thereafter at judgment rate.

21.Order nisi : Costs to the Respondent.

22.Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.

Mr. Nick Lee, Legal Aid Counsel of Legal Aid Department for the Applicant.

Mr. Alexander Lee of Messrs Ricky S.P. Ng & Co for the Respondent.