Kong Leung v. Ma Chor Seung t/a Tat Fung Tyre Co (A Firm)
Read the full judgment text of DCEC 338/2004 on BabelCite. This District Court judgment.
1. The Applicant claims that he sustained injury to his left eye while working for the Respondent as a long-term casual worker on 9 August 2003. He now seeks compensation under ss9, 10 & 10Aof the Employee’s Compensation Ordinance.
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DCEC338/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 338 OF 2004 __________ IN THE MATTER OF AN APPLICATION BETWEEN
__________ Coram : H.H. Judge Wong in Court Dates of Hearing : 28th, 29th April 2005 & 3rd May 2005 Date of Handing Down Judgment : 25th May 2005 ____________________ J U D G M E N T ____________________ Applicant’s case 1.The Applicant claims that he sustained injury to his left eye while working for the Respondent as a long-term casual worker on 9 August 2003. He now seeks compensation under ss9, 10 & 10Aof the Employee’s Compensation Ordinance. Respondent’s Answer 2.The Respondent does not admit that the Applicant worked on 9 August 2003, in any event he was only a contractor, hence the Applicant was not employed by him. Issues 3.The following are the issues in this application:-
Applicant’s evidence 4.The Applicant says that in April 2003 he was introduced to work for the Respondent by Mr. Lau Tin Sang. His work was mainly for repair of trucks. He had a co-worker called “Ah KAN”. 5.His usual working hours were from 9 a.m. to 7 p.m. He was required to stay in the workshop to stand by even without work in case a truck came in for immediate repair. He called himself a long-term casual. He was paid $500 a day working 26 days a month. If he did not turn up for work he would not get his pay. He said he had not worked for other people. 6.All the tools for the work were provided for by the Applicant. He had to work in the workshop. 7.On 9 August 2003 he was instructed to repair a truck because oil leaked out from the bearing. He used a hammer and a flat chisel to detach the bearing. A small piece of metal bearing was chipped and hit his right eye. He did not feel pain and thought it was a minor injury. 8.After work he left for China. The next day he felt very painful in his left eye. So he went to the hospital in China, took a scan and found a small piece of metal was inside his left eye. 9.He returned to Hong Kong on 11 August 2003 and reported the injury to the Respondent and was advised by the Respondent to see a doctor at the North District Hospital. He underwent an eye operation to remove the metal and was discharged the next day. 10.On 15 August 2003 he returned to the workshop and passed the sick leave certificate to the Respondent. The Respondent asked him not to report the accident to the Labour Department as he had no insurance. The Respondent asked Lau Tin Sang to persuade him not to report and would pay him $200 per day as sick leave to settle the matter. 11.On 29 August 2003 he passed the sick leave certificate to the Respondent again, the Respondent refused to accept and asked him to report to the Labour Department and sue him. 12.Lau Tin Sang gave evidence and said the Respondent’s son asked him to go to his garage. He found that there was an argument between the Applicant’s father and the Respondent. The Respondent told him that the Applicant alleged that he suffered eye injury and the Respondent asked the Applicant to see a doctor and he would give the Applicant $200 a day but the Applicant’s father insisted to report the accident to the Labour Department. Respondent’s evidence 13.The Respondent said that the Applicant was only a contractor to repair vehicles. He was paid according to the agreed price. He only lent his garage to the Applicant to work. When the job was completed he would pay the Applicant the next day. So far he had only contracted two jobs to the Applicant. In August 2003 he contracted out a job to the Applicant to repair a trucker at an agreed price of $900.00. The Applicant completed the job on 7 August 2003. The Applicant went to the workshop on 8 August 2003 in the evening to collect the money and informed him that he would go to China the next day and he could be contacted the following Tuesday if there was job for him. Lee Man Chun was there and witnessed the Respondent paid the Applicant. He observed the Applicant did not suffer any injury nor did the Applicant tell anyone that he was injured during work. 14.He said Lee Man Chun was at the workshop on 9 August 2003 supervising the workshop, answering phone calls and receiving work orders. Lee confirmed to him that he did not see the Applicant on that day. 15.He denied he had paid $500 or $13,000 per month to employ Lau Tin Sang. As to the meeting with the Applicant and his father he said he refused to yield to the suggestion of paying $200 a day to the Applicant as he was not the Applicant’s employer and that on the day of the alleged accident the Applicant was not working at the garage. He said if the Applicant insisted to report to Labour Department there was nothing to prevent him from doing so. 16.Lee Man Chun said that on 8 August 2003 he returned to the workshop at 4 p.m. He stayed on until 8 p.m. to supervise and assisted in repair work. In the evening he saw the Applicant arrived at the workshop to collect cash from the Respondent. He talked to the Applicant who told him he would go to China the next day and invited him to go along. He did not observe any injury to the Applicant’s eye. 17.On 9 August 2003, a Saturday, he worked the whole day at the workshop he did not see the Applicant. 18.Lee Wai Hing said that from end of 1999 to end of 2000 he and his partner had been assigned repair work from the Respondent. He would be contacted by telephone and then go the Respondent’s workshop to work and would be paid the assigned repair work within a month or two. He said this sort of assigned work is very common in that trade. Contractor or Employee 19.It is not the label that the parties put on that determines the relationship between the parties. The various factors in determining whether one is an independent contractor or employee referred to in Wong Po Siu v New Universal Paper Co. Ltd. CA 15 of 1972 are a few of the factors to be considered. 20.The undisputed evidence is that the Applicant worked on the Respondent’s premises with all the tools provided by the Respondent. He was being paid for the work done with no risk of financial loss. 21.There is a total lack of evidence from the Respondent as to whether there was any contract nor any receipt or accounts to show how the Applicant was paid to support the Respondent’s allegation. I do not accept that the Respondent had only assigned two contracts to the Applicant during that period. 22.On balance I find that the Applicant was an employee of the Respondent. Did the Applicant worked on 9 August 2003? 23.I do not accept the evidence of the Lee Man Chun. He is closely related to the Respondent. He cohabits with the Respondent’s daughter. There is every incentive for him to side with the Respondent. 24.The Respondent said that the Applicant went to the workshop in the evening of the 8th August to collect cash whereas Lee said he saw the Applicant at the workshop between 4-5 p.m. on that day. He said that he regarded 4-5 p.m. as evening due to his lack of education is unbelievable. He talked about project payment by the Respondent but he acknowledged he had no knowledge of the arrangement between the Applicant and the Respondent. 25.On balance I accept the evidence of the Applicant and that of Lau Tin Sang. I accept that there was a meeting on the 15th August. 26.The Respondent from his correspondence with the Labour Department and Legal Aid Department, he only denied the Applicant was an employee, he did not deny the Applicant worked on 9th August. 27.For reasons above I accept on balance that the Applicant worked on the 9th August. Was the Applicant injured in the course of employment? 28.The X-ray and the fragment of metal removed from the Applicant’s eye is consistent with his allegation that the metal particle got into his eye when he worked on the bearing. Wage 29.The Applicant said that he was paid $500 a day working for 26 days a month making a total of $13,000 a month. He said that he had to be in the workshop even when there was no work. On balance I find that is logical because he needed to be in the workshop to do repair work when trucks or trailers went to the garage for immediate repair. There is no evidence that all repair works have to be booked in advance. 30.I accept that $500 was the normal wage. Lee’s evidence that when he first worked for the Respondent he was given $500 a day was not challenged. 31.However I do not find that the Applicant received $13,000 a month because he said he was a long-term casual worker and every month there were a few days in which he did not go back to work. 32.I assessed his wage to be at an average of $11,000 a month. Conclusion 33.For reasons above I find that the Applicant was an employee of the Respondent. He was injured in the course of employment and that he earned an average of $11,000 a month. Assessment of Compensation 34.It is agreed that the Applicant has a 30% disability and was 28 years of age at the time of the accident. It is also agreed that the Applicant had 127 days’ sick leave.
35.In the premises I give judgment for the Applicant in the sum of $355,623.00 with interests at ½ judgment rate from date of accident to judgment and thereafter at judgment rate. 36.Costs to the Applicant to be taxed if not agreed. 37.Applicant’s own costs to be taxed under the Legal Aid Regulations.
Mr. David Brettell of Messrs. Erving Brettell Assigned by D.LA. for the Applicant. Miss Amendy Leung instructed by Messrs Kenneth C.C. Man & Co for the Respondent. |