Case Document

100%Judiciary

DCEC314/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 314 OF 2007

------------------------

BETWEEN

	WONG WAI MING KEN	Applicant
	and
	FTE LOGISTICS INTERNATIONAL LIMITED	Respondent

------------------------

Coram: H H Judge Marlene Ng in Court

Date of Hearing: 25^th August 2008

Date of Handing Down Judgment: 27^th August 2008

------------------------

JUDGMENT

------------------------

I. Introduction

1. The Respondent carried on business of express delivery service (“Business”). The Applicant claimed that on 18^th May 2005 he was employed by the Respondent as an express delivery worker. At the material time, he was also the registered owner of a motorcycle bearing registration number LT1784 (“Motorcycle”).

2. The Applicant claimed that in the morning of 18^th May 2005 he drove the Motorcycle to work at the Respondent’s station office at Chun Tin Street, Hung Hom (“Hung Hom Station”). The Respondent assigned him to deliver documents from the Hung Hom Station to a customer in Yuk Yat Street, Tokwawan (“Destination”). At about 11:45am, the Applicant was riding the Motorcycle along the 1^st lane of the eastbound carriageway of Bailey Street. He turned left into the 2^nd lane of the northbound carriageway of Sung On Street towards Tokwawan. At that time a private vehicle bearing registration number LS3830 (“Car”) was travelling along the 1^st lane of the opposite carriageway. Upon nearing Bailey Street, the Car made a U-turn into the opposite carriageway (ie the Applicant’s path) without ensuring clearance of its offside, and stopped in front of the Motorcycle. The Applicant immediately applied brake, but it was too late and a collision occurred between the Motorcycle and the Car (“Accident”). The Applicant fell to the ground and sustained injuries. He was taken to the accident and emergency department (“AED”) of Queen Elizabeth Hospital (“QEH”) for treatment.

3. The Applicant claimed employees’ compensation for personal injuries that arose out of and in the course of his employment with the Respondent as a result of the Accident.

4. The Applicant also appealed against the assessment of 3% loss of earning capacity permanently caused by his injury (ie “right knee injury resulting in pain, stiffness and weakness”) in the Certificate of Review of Assessment dated 19^th September 2007 (“Form 9”). I was informed by Mr Gidwani, counsel for the Applicant, at the trial that the Applicant would no longer pursue such appeal. Since no formal application was made to withdraw the Notice of Appeal filed on 31^st January 2008, the same fell to be dismissed and I do so now.

5. The Respondent did not dispute that the Applicant suffered personal injuries as a result of the Accident, but claimed the Applicant was its independent contractor and not its employee. It was said that on or about 16^th January and 21^st February 2005 both parties entered into 車輛租賃申請者須知事項 and 車輛租賃合約 respectively, which agreement was terminated on 18^th May 2005. The Respondent claimed that pursuant to車輛租賃申請者須知事項 and 車輛租賃合約, (a) the Respondent rented the Motorcycle at a monthly rental payment (ie not monthly earnings) of HK$10,000.00, (b) the Applicant was an independent contractor or self-employed person, and not an employee of the Respondent, (c) the Employment Ordinance Cap.57 did not apply to the agreement between the parties, and (d) each party could give the other party 3 working days’ notice or 3 days’ rent in lieu of notice to terminate the agreement. In contra-distinction to the Applicant, the Respondent would enter into 僱傭合約 (“Employment Contract”) with its employees.

6. The Respondent was previously legally represented, but acted in person since 15^th May 2008. The Respondent was absent at trial. According to the affirmation of service filed on 21^st August 2008, my order dated 20^th May 2008 which set the case down for trial to be heard before me on 25^th August 2008 was served on the Respondent in June 2008. There was no reason not to proceed with the trial.

II. Issues

7. There can be no dispute that the Accident happened as described in paragraph 2 above. Police records revealed that on 29^th November 2005 the driver of the Car (“Car Driver”) was convicted of careless driving in relation to the Accident after trial (“Magistracy Trial”), and fined HK$1,200.00. The Applicant gave evidence at the Magistracy Trial, and his evidence as to how the Accident occurred was accepted by the learned magistrate.

8. I also accept that at the time of the Accident the Applicant was in the course of delivering documents from the Hung Hom Station to the Destination (see the Applicant’s statement to the police dated 3^rd June 2005). When the Applicant gave evidence at the Magistracy Trial, he also confirmed he commenced his motorcycle trip from the Respondent’s office.

9. I also make the following findings of fact which did not appear to be disputed :

(a) At the time of the Accident, the Applicant was 26 years old.

(b) The Applicant received education up to secondary school level, and could read, write and understand Chinese and punti language.

(c) The Applicant obtained his driving licence in 1997, and at the time of the Accident he had 5 years’ experience of riding motorcycles.

10. The main issue on liability in this case is whether the Applicant was an employee or independent contractor of the Respondent at the time of the Accident. The Applicant gave evidence on this issue and adopted his witness statement as part of his evidence-in-chief.

III. Legal principles

11. In Poon Chau Nam v Yim Siu Cheung (t/a Yat Cheung Airconditioning & Electric Co) [2007] 2 HKC 135, 144-145, the Court of Final Appeal held that the modern approach to the question of whether one person was another’s employee was to examine all the features of their relationship against the background of the indicia developed in the case law with a view to deciding whether, as a matter of overall impression, the relationship was one of employment, bearing in mind the purpose for which the question was asked. It involved a nuanced and not a mechanical approach (see Hall v Lorimer [1992] 1 WLR 939, 944).

12. Ribeiro PJ cited Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2 QB 497, 515 where MacKenna J identified 3 conditions for the existence of a contract of employment as follows: “(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.”

13. But Poon Chau Nam at pp.143-144 said the courts had increasingly turned to the economic or commercial aspects of the relationship as more suitable guides. A reservation of right to direct or superintend the performance of the task could not transfer a contract of service what in essence was an independent contract.

14. Ribiero PJ next cited the well-known test by Cooke J in Market Investigations Limited v Minister of Social Security [1969] 2 QB 173 :

“The fundamental test to be applied is this : ‘ Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’ If the answer to that question is ‘yes’, then the contract is a contract for services. If the answer is ‘no’ then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”

15. Ultimately, the question whether a person was an employee or independent contractor was a question of fact to be determined by the trial court (see Chitty on Contracts 29^th ed, Vol.2, paras.39-010 - 39-028 at pp.943-955 which set out some helpful considerations).

IV. Liability

(a) Evidence

16. According to the Respondent’s 人員需求申請書dated 20^th December 2004, internal approval was given for putting up an advertisement to recruit 2 “外包電單車” for the Hung Hom Station to “擴大編制” and “辭職補充”. As to the requirements for the persons to be recruited, it was stated inter alia that “員工薪金” would be “@10000/[month]”.

17. On 14^th January 2005, the Applicant filled in and signed 職位申請表 for the position of “司機(包車)” and attended an interview for the post of “包車電單車”. The Applicant claimed the position was for an express delivery worker whose job was to deliver documents as assigned by the Respondent, and one of the conditions of his employment was that he must have a motorcycle for work purpose. The職位申請表 also specified the Applicant’s “薪金” would be HK$10,000.00 and he would be immediately available.

18. From the work history as stated in 職位申請表, the Applicant worked as driver for 順風速遞and 振雄貨運 in 2000-2003 and 2003-2005 respectively. The Applicant claimed he was an employee of these 2 companies, but he did not need to use the Motorcycle for work purpose whilst so employed.

19. The Respondent’s internal record titled任用通知單 showed that approval was granted in respect of the Applicant’s aforesaid application with inter alia the following particulars :

(a) “項事通知” : “R初任核薪” and “以上生效日 : 05年1月15日”;

(b) “原任” : “單位 : [Hung Hom Station]”, “稱職: 電單車包車” and “總薪 : $10,000–”.

20. On 16^th January 2005, both the Applicant and the Respondent entered into and signed 車輛租賃申請者須知事項as follows :

“承租單位 : [Hung Hom Station]。

工作時間 : MON.-FRI. 8:00 – 19:00 SAT. 8:00 – 16:00。

工作休息日 : A。

假期日 : 法定假期(勞工假)。

超時工作 : 無加班費。

租賃車輛類型 : 電單車。

工卡 : 按規定每日上班及下班均須打卡，若員工忘記打卡，請找承租單位主管簽名作實，每月只可簽卡三次，倘若上班或下班沒有打卡及沒有承租單位主管簽署將作曠工論。

租賃條款 :

1. 承租公司願意以下列條件支付租賃費用給予租賃公司 / 自僱人士上車輛 :

a. 本公司每日 / 每月租賃車輛費用為10000月。

b. 每月租賃費用是不包括承租方派送所支付的隧道費及停車場費，其餘費用一律由租賃公司 /自僱人士自付。

c. 本公司只屬於租賃貴公司 / 自僱人士車輛之性質，租賃工作期間內若車輛發生機械故障及一切意外或自然損毀，一概與本司無關。

d. 交通罰款 : 本公司只負責每月第一次違例泊車的告票，同月第二次及以後的違例泊車告票將按租賃車輛負擔罰款的30%，承租公司支付其餘的70%，其他違例罰款由租賃車輛自付。

2. 租賃公司 / 自僱人士必須符合下列條件並提供良好之服務予承租公司 :

a. 承租公司要求租賃車輛在租賃期間貼上承租公司的圖樣及名字以利識別，一切製造費用由承租公司支付。

b. 租賃車輛工作時間由上午08:00開始至收派及承租公司理貨作業完成為止。

c. 出席率將依據租賃車司機在承租公司的打卡記錄為準，如有缺席，租賃費用將依據工作缺席日數按比例扣除。例一 : ……例二 : ……

d. 如交收之貨件有遺失、短缺或派送錯誤，承租公司將以每日 / 月租賃費用扣除合理的款項作為賠償，(最高為承租公司賠償客戶之款項)。

e. 在工作期間內租賃車司機必需配合承租公司的調度要求，如未能給予配合，將立刻終止租賃車輛合約。

f. 租賃車司機有責任協助收派、點貨及上下貨作業，以提高收派件效率，若未能給予配合，將立刻終止租賃車輛合約。

g. 租賃車司機有責任配合承租公司的要求，須穿著整潔正規的公司制服(需扣上鈕扣、嚴禁改裝制服)，需穿不露腳趾 / 腳跟的鞋及長褲 (嚴禁穿拖鞋、涼鞋及短褲)及不准染髮與紋身、(頭髮前面不得蓋著眼睛、後面頭髮不可過肩或用橡筋束起)及嚴禁穿戴耳環，如發現屢次違反者，可以立刻終止租賃車輛戶合約。

3. 租賃服務 / 自僱人士須知 :

a. 根據勞工法例租賃服務 / 自僱人士並不受(僱傭條例)保障。

b. 閣下並非承租公司員工，若雙方任何一方終止租賃服務，雙方只需給予對方3天工作通知期 / 補回相等於租賃3天金額作為補償代通知金。

c. 若租賃公司 / 自僱人士違反2e. / 2f. / 2g.的服務條件，承租公司將立刻終止租賃車輛合約而不作3b所列之補償。

d. 每逢農曆新年長假期的月份，承租公司將按當月租賃車輛所工作日數給予租賃費用。例 : ……

承租公司及租賃公司 / 自僱人士雙方均清楚明白以上的各項內容，並同意在以下簽名作實。

租賃車司機簽署: [Applicant’s signature] 承租公司負責人簽署 [signature]

日期 : 16/1 日期 16.01.05

公司印鑑 : [blank] 承租公司印鑑 : [stamp]

21. On 21^st February 2005, both the Applicant and the Respondent entered into and signed 車輛租賃合約as follows :

“[Respondent](簡租承租公司)現與租賃公司 / 自僱人士訂立本租賃合約 :

租賃公司/自僱人士: [Applicant] 租賃車司機姓名 : [Applicant]

商業登記號碼 : [blank] 租賃車司機身份證號碼: [identity card number]

租賃車牌號碼 : LT1783 租賃車司機聯絡電話: [number] (住宅)
[number] (手機)

租賃車輛類型: 電單車

租賃條款 :
……

承租公司/ 租賃公司 / 自僱人士雙方均清楚明白以上的各項租賃條款及服務內容，並同意在以下簽名作實。

租賃車司機簽署: [Applicant’s signature] 承租公司負責人簽署: [chop]

日期 : 21-2-05 日期: 2005年2月18日

公司印鑑 : [blank] 承租公司印鑑 : [stamp]

此合約為一式兩份，僱主及租賃公司 / 自僱人士雙方均
保存一份以作日後參考”

“租賃條款” in 車輛租賃合約 are the same as those found in 車輛租賃申請者須知事項 except that clause 2(g) provided that “租賃車司機有責任穿著整齊制服及端莊儀表並配合承租公司的要求，如發現屢次違反者，可立刻終止租賃車輛合約”.

22. The Applicant admitted he signed and understood the contents of車輛租賃申請者須知事項 and 車輛租賃合約. He realised that such documents described him as 租賃公司 / 自僱人士 and the Respondent as 承租公司. Although he regarded himself as an employee of the Respondent, he still signed such documents because at the material time he had not read the documents carefully and he had to take up the job to earn his living.

23. The Applicant claimed that in the course of his work, he had to clock his time card each work day, and leave days (事假 or 請假) as well as rest days (休息) were marked on the same. When he received his monthly remuneration from the Respondent, he signed receipt for the same. The receipts dated 4^th February and 7^th June 2005 for his remuneration for January and May 2005 respectively described the sums were for “一月份包車費” and “5月包車” whilst the receipts for February, March and April 2005 were silent on the purpose of the payments. The Respondent also disclosed various internal schedules which set out “包車租金” from January to May 2005 listing all the Respondent’s “包車” and gave particulars of inter alia vehicle registration numbers, names of the workers, “支薪單位” (eg Hung Hom Station), “職位” (ie different types of “包車”), monthly rental, other deductions and amount of rental payments.

24. The Applicant claimed the Respondent determined his working hours and work procedures, and assigned the delivery jobs to him and other workers. The Applicant had to abide by and carry out the Respondent’s instructions. The working hours specified by the Respondent were from 8am to 7pm, and normally the workday ended when he finished all the delivery jobs assigned to him. If he wished to take leave, he had to apply to the Respondent for permission. The Applicant did not earn any profits or bear any loss of the Business, ie he did not carry any business risk.

25. Immediately after the Accident, the Applicant telephoned to inform the Respondent he was injured. The Respondent sent a colleague to pick up the document which the Applicant was to deliver to the Destination from the Motorcycle, and such colleague completed the delivery.

26. After receiving treatment and ascertaining his condition, the Applicant telephoned to inform the Respondent that he would not be able to return to work for a while. He was told to take some rest.

27. The Respondent’s internal record titled任用通知單 showed that application was made on 18^th May 2005 for termination of 車輛租賃合約with the following particulars :

(a) “停薪通知” : “R該員已奉准離職” and “截止計薪日 : 05年5月18日”;

(b) “新任” : “單位 : [Hung Hom Station]”, “稱職 : 外包電單車” and “總薪 : $10,000/月”.

28. The Applicant gave evidence (which I accept) that he never resigned from his position as the Respondent’s express delivery worker. He explained that about 2 months after the Accident the Respondent enquired whether he could return to work. When he told the Respondent he was unable to do so due to his injuries, he was informed “唔使返嚟”. The timing of such conversation was roughly consistent with the date of the Respondent’s internal record 終止租賃車輛服務, namely, 6^th July 2005 (ie about 1½ months after the Accident). Such document stated that the reason for termination of the Applicant’s “電單車包車” was “受傷、離職” and that “最後工作日5月18日，6月30日站主管才通知此包車已離職，此文件不用寄台灣，只作行政室保存”. Since the Respondent told the Applicant he need not return to work, the Applicant did not submit his sick leave certificates to the Respondent.

29. The Respondent did not submit any Form 2 to the Labour Department. So on 9^th June 2006, the Applicant submitted 工傷意外通知書 to the Labour Department stating that the Respondent was his employer and that he suffered injury on duty as a result of the Accident.

30. On 12^th June 2006, the Labour Department wrote to the Respondent requesting for their response to the Applicant’s allegation. On 19^th June 2006, the Respondent sent its written reply to the Labour Department referring to車輛租賃申請者須知事項 and 車輛租賃合約, and denying that the Applicant was its employee. The Respondent also stated that the Applicant did not submit any sick leave certificate or ask the Respondent to report any work injury since he knew he was a self-employed person. The Respondent claimed the Applicant ceased to provide services for the Respondent on 19^th May 2005 as he was unable to deliver such services, and the Applicant told the then supervisor in charge of the Hung Hom Station that he would terminate 車輛租賃合約.

(b) Analysis

31. There is no dispute that (a) the Applicant understood and signed車輛租賃申請者須知事項 and 車輛租賃合約 and (b) provided his Motorcycle as equipment for performance of his work as express delivery worker pursuant to his agreement with the Respondent.

32. It also cannot be disputed that :

(a) various parts of 車輛租賃申請者須知事項 and 車輛租賃合約 described the Applicant as “租賃公司/自僱人士” and “租賃車司機”, the Respondent as “承租公司” and “承租方”, the Motorcycle as “租賃車” and “租賃車輛”and the payments to the Applicant as “租賃費用”;

(b) the provisions in clauses 1(c), 3(a) and 3(b) of車輛租賃申請者須知事項 and 車輛租賃合約 stated that the Applicant was not an employee of the Respondent, but an independent contractor and/or self-employed person who did not come within the protection of the Employment Ordinance Cap.57;

(c) certain payment receipts signed by the Applicant referred to “包車” and “包車費” (see paragraph 23 above);

(d) the Respondent’s internal records referred to the Applicant’s position as “外包電單車”, “包車電單車”, “包車”, “電單車包車” and “外包電單車”, and the payments to the Applicant as “包車租金” (see paragraphs 16-17, 19 and 23 above).

33. Although the Applicant claimed he did not read the contents 車輛租賃申請者須知事項 and 車輛租賃合約 carefully when he signed the same, I do not accept such evidence. He received education to secondary level. He should have no difficulty in reading such Chinese documents which were signed on separate days. He also had prior working experience as driver for some time, so he should not be unaware of employment conditions/requirements. I find that he knew the contents of such documents (which were obviously prepared by the Respondent), but chose to sign the same because he wanted to have the job.

34. However, my acceptance of the Applicant’s knowledge of the contents of and his agreement and signature to車輛租賃申請者須知事項 and 車輛租賃合約 does not mean that I find he was an independent contractor of the Respondent or a self-employed person undertaking express delivery work for the Respondent. It is for the court to assess the evidence to ascertain what is the true relationship of the parties, and the parties’ own declaration or description of their relationship is not determinative.

35. It is interesting to note that even in the above documents, there are references which suggest an employment relationship. First, although車輛租賃申請者須知事項 and 車輛租賃合約 referred to rental payments, the Respondent’s internal records described such payments as “員工薪金”, “薪金”, “總薪” (see paragraphs 16-17 and 27 above) and the Hung Hom Station as “支薪單位” (see paragraph 23 above). The Respondent’s internal references to salary/wages suggest that notwithstanding the careful crafting of車輛租賃申請者須知事項 and 車輛租賃合約, the Respondent regarded the Applicant as an employee who was entitled to salary/wages. It is also telling that 車輛租賃合約 expressly provided that both “僱主” (presumably the Respondent) and “租賃公司 / 自僱人士” (presumably the Applicant) would retain copies of the agreement for future reference. This also suggests that the Respondent had in mind its identity as employer despite (as aforesaid) the careful crafting of the agreement.

36. Looking at the matter broadly and adopting a nuanced approach as recommended by the Court of Final Appeal, it is obvious that the arrangements between the parties was not simply a vehicle rental agreement. In reality, the Respondent required the services of an express delivery worker. The Applicant did not simply offer the use of his Motorcycle; he not only acted as the driver of the Motorcycle but also had to perform delivery services himself by delivering the documents from the Hung Hom Station to the designated destinations. In my view, the evidence showed that in fact such services performed by the Applicant constituted the heart of the agreement between the parties. Even on the face of 車輛租賃申請者須知事項 and 車輛租賃合約, clause 1 dealt with the vehicle rental and clause 2 (which had more sub-clauses) dealt with how the Applicant would “提供良好之服務” for the Respondent.

37. The Respondent exercised a strong degree of control over the Applicant’s workday :

(a) 車輛租賃申請者須知事項 and 車輛租賃合約 specified the work hours of the Applicant. He was required to start work at 8:00am on each workday. Although his working hours were said to end at 7:00pm on weekdays and 4:00pm on Saturdays, he was required to finish the delivery jobs assigned to him before going off work (clause 2(b)).

(b) The Applicant was required to clock his time card when he started to and went off work each workday. If he failed to do so, he had to ask the Respondent’s supervisor in charge of the Hung Hom Station to initial his time card. If he failed to ask the supervisor to initial his time card or if the supervisor had to initial his time card more than 3 times in a month, the Applicant would be regarded as absent from work (曠工).

In my view, these requirements and activities were all consistent with that of controlling the work of an employee.

38. The Respondent also exercised other means of control over the Applicant’s tasks :

(a) The Applicant was required to be properly attired. 車輛租賃申請者須知事項 and 車輛租賃合約 went into minute detail as to the Applicant’s person and attire. Earrings, hair dyeing, tattoo and long hair were disallowed, and shoes that exposed toes/heels, sandals, flip-flops and shorts were also not permitted.

(b) The Applicant could not choose his workdays. Unless it was a rest day or unless he was on leave, if he failed to clock his time card when he went on and off work (“上班或下班”), he would be treated as absent from work and would not receive any pay for that day. In the circumstances, I accept the Applicant’s evidence that he had to apply to the Respondent for going on leave.

(c) The Respondent assigned delivery jobs to the Applicant and his colleagues. For example, at the time of the Accident, the Applicant was delivering a document to a customer of the Respondent in Tokwawan on the instructions of the Respondent. When he was injured as a result of the Accident, he had to report to the Respondent, and the Respondent assigned another delivery worker to complete the delivery job. Had the Applicant been an independent contractor, he would probably have to make arrangements for someone to complete the delivery job sub-contracted to him on his behalf.

(d) The Applicant had to work at the directions of the Respondent. Indeed, according to clause 2(e) of車輛租賃申請者須知事項 and 車輛租賃合約, the Applicant had to comply with the Respondent’s “調度要求”. Further, in accordance with clause 2(f), the Applicant had to “配合” the required delivery services to enhance efficiency. The importance of such powers by the Respondent can be seen from the fact that the Applicant’s failure to comply with directions entitled the Respondent to terminate the agreement.

(e) There is no evidence before me that the Applicant could sub-delegate the tasks assigned to him by the Respondent or to engage his own workmen to complete such tasks. In short, whilst車輛租賃申請者須知事項 and 車輛租賃合約 were in force, the Applicant had to work as directed by the Respondent.

39. Further, the Respondent had power to select or dismiss the Applicant. The Applicant responded to an advertisement to fill a vacant position and had to fill in an application form and undergo an interview in the course of the recruitment exercise by the Respondent. The Respondent also had unilateral power to terminate the services of the Applicant upon certain circumstances specified in clauses 2(e), 2(f) and 2(g) of車輛租賃申請者須知事項 and 車輛租賃合約, but there was no corresponding right on the part of the Applicant. In my view, the tenor of such arrangements is highly suggestive of an employment relationship.

40. Although the Applicant provided use of the Motorcycle and had to be responsible for fuel, repair and maintenance charges, in my view, such cost was no doubt included in the monthly payment to the Applicant. Indeed, the Employment Contract suggested that in 2006 a delivery worker of the Respondent who did not provide use of a vehicle was making much less than HK$10,000.00 per month. 車輛租賃申請者須知事項 and 車輛租賃合約 provided that the Respondent was responsible for tunnel and parking fees (clause 1(b)) and for the first parking ticket of the month and 70% of the parking tickets for the rest of the month. Had the arrangements between the parties been a pure vehicle rental agreement, it is difficult to appreciate why the Respondent should be responsible for the aforesaid cost incurred by the Applicant in providing independent delivery services.

41. In my view, the Applicant was regarded as part of the Respondent’s organisation. He had to wear the Respondent’s uniform and the Motorcycle had to bear the Respondent’s logo. There is no evidence that the Applicant had any trade name or logo. In the circumstances, to any customer who received documents from the Applicant in the course of work as an express delivery worker, the Applicant would appear to be a staff member of the Respondent, and this I find is what the Respondent intended.

42. I further find that the Applicant did not carry on business on his own account. It is evident from車輛租賃申請者須知事項 and 車輛租賃合約 that he did not have to bring in any business and he only performed delivery jobs assigned to him by the Respondent. Indeed, he had to finish the assigned jobs each workday. There is no evidence that the Applicant had any business registration or trade name, and the spaces for “公司印鑑”and “商業登記號碼” in車輛租賃申請者須知事項 and 車輛租賃合約 were left conspicuously blank. There is also no evidence that he had time to or actually did take on other work. It is true that the Applicant used his own Motorcycle (ie provided equipment for his work), but the use of the Respondent’s logo on the Motorcycle gave the impression to customers and others that it was part of the Respondent’s fleet of delivery vehicles.

43. More importantly, the Applicant’s remuneration did not turn on the level of delivery business, and he did not share in any profits or loss of the Respondent’s business. He received a flat rate of HK$10,000.00 each month with pro rata deductions for days absent from work (clause 2(c)) and other deductions for errors in his work (clause 2(d)) irrespective whether the express delivery business was profitable or not. His remuneration had no bearing on the delivery cost charged by the Respondent and/or paid by its customers. The Applicant claimed to have a monthly bonus of HK$1,000.00, but there is no suggestion that the bonus turned on profits/loss of the business.

44. In assessing the relationship between the parties, the court is concerned with substance and not form. From the above analysis, my overall impression is that the Applicant was employed as an express delivery worker, and the fact that he used his own Motorcycle in his work and車輛租賃申請者須知事項 and 車輛租賃合約 contained descriptions suggesting he was an independent contractor are insufficient to dissuade me from the above conclusion as to the Applicant’s true capacity. He was presented to customers as a member of the Respondent’s organisation, and in reality the Respondent exercised control over him as an employer would. The tone of 車輛租賃申請者須知事項 and 車輛租賃合約 leads to a lingering suspicion that they were crafted by the Respondent to avoid liability as employer, but if this were the intention, the documents dismally failed in such objective. I also find that it was the Respondent rather than the Applicant who terminated the agreement after the Applicant had the Accident, and the Applicant could not be faulted for not submitting his sick leave certificates to the Respondent.

45. Perhaps I should say a few words about the Employment Contract. The Respondent by its Answer emphasised the contrast between the Employment Contract for its employees and車輛租賃申請者須知事項 and 車輛租賃合約for its independent contractors. Mr Gidwani asked me to ignore the Employment Contract because the sample provided was dated 6^th May 2006, which was about a year after the Accident. He claimed that any comparison was unrealistic. He also submitted that the job title of “外務員” in the Employment Contract also cast doubt whether proper comparison could be made with the Applicant’s position. Again one looks at substance and not form, so I am prepared to accept that the position in the Employment Contract was that of a courier who did not have to provide a means of transport (eg motorcycle). But I disagree that I am bound to draw comparison with the Employment Contract. The existence of the Employment Contract (ie in 2006 the Respondent entered into employment contracts with certain of its employees) is but one factor for consideration in the overall factual matrix, but such factor does not detract from the need to analyse the proper relationship of the parties by considering all the circumstances. Having regard to the aforesaid analysis, I am not persuaded that the Employment Contract enables me to conclude that the Applicant was an independent contractor or self-employed person.

46. In the circumstances, I find that the Respondent was liable as employer to pay employees’ compensation to the Applicant in respect of personal injuries arising out of and in the course of his employment as a result of the Accident.

V. Quantum

47. According to the Applicant’s statement to the police dated 3^rd June 2008 and his evidence at the Magistracy Trial, he was thrown over the Car and landed on the ground as a result of the Accident. He claimed that he hurt his right leg with back pain, and could not move. Shortly after the Accident, the police and ambulance arrived, and he was sent to QEH’s AED. He sustained right knee contusion and abrasion. X-ray of right knee showed no fracture and his general condition was satisfactory. He was treated and discharged with anti-tetanus toxoid booster, analgesics and physiotherapy. He was granted sick leave from 18^th to 22^nd May 2005.

48. On 23^rd May 2005, the Applicant attended the AED of Kwong Wah Hospital (“KWH”) and complained of right-sided chest pain and right knee pain. Physical examination revealed tenderness on right chest wall and right knee. The range of movement of the right knee was markedly decreased. X-rays of the chest and right knee showed no fracture. Despite analgesic injection, the Applicant claimed he could not walk. Although admission to the hospital was offered, the Applicant discharged himself against medical advice. Sick leave was granted from 23^rd to 30^th May 2005. The Applicant was referred to the Physiotherapy Department for use of crutches for ambulation and to the Occupational Therapy Department for application of an extension knee brace.

49. On 30^th May 2005, the Applicant re-attended KWH’s AED for follow-up session. Examination of the right knee showed no objective evidence of injury. There was no swelling and no local tenderness. Results of McMurray test and stress on collateral ligaments were negative. The doctor noted that the Applicant actively extended his right knee to resist attempt to flex right knee in physical examination. Admission to the hospital was suggested, but the Applicant discharged himself against medical advice. Sick leave for 31^st May 2005 was granted.

50. The Applicant attended the orthopaedic clinic of Prince of Wales Hospital (“PWH”) on 7^th June 2005. He complained of right knee pain on walking. There was no instability or locking symptom. Physical examination revealed pain over patella area. There was no joint effusion. The extensor mechanism was intact. There was no joint line tenderness and no sign of cruciate ligament injury. X-ray of the right knee did not show any fracture. Physiotherapy and analgesics were offered. The Applicant attended PWH 4 times and the last follow up was on 1^st November 2005. He complained of right thigh and knee pain few days before the follow up. Physical examination showed tenderness over quadriceps muscle. There was no gap felt over the quadriceps muscle. There was no sign of meniscal or ligamentous injury. The range of knee movement was 0-130˚. Physiotherapy and analgesics were offered. The Applicant defaulted follow up treatment on 13^th December 2005. Sick leave from 7^th June to 13^th December 2005 was given.

51. The Applicant claimed he had difficulty in walking because of right knee “韌帶受損之緣故” and his right leg was very painful. But the medical reports essentially ruled out meniscal or ligamentous injury. He further claimed he could not return to his pre-Accident job because he could no longer ride a motorcycle, and since February 2006 he was employed as a bus driver by 信成巴士 working about 20 days a month with average monthly earnings of about HK$9,000.00.

52. However, since the Applicant’s appeal against Form 9 was dismissed, the period of absence from duty necessary as a result of his injury from 18^th May to 13^th December 2005 (ie 210 days) and the loss of earning capacity permanently caused by such injury of 3% stated therein were binding on the parties (see Ng Ming Cheong v Mass Transit Railway Corportation [1997] 3 HKC 413).

53. The Applicant further accepted that the List of Earnings filed by the Respondent correctly reflected his earnings from mid-January 2005 to the time of the Accident. According to the List of Earnings, the Applicant’s monthly earnings from January to May 2005 were HK$5,000.00, HK$8,214.30, HK$10,000.00, HK$9,333.00, HK$6,000.00 respectively. His average monthly earnings over the period from mid-January to April 2005 were HK$9,299.23 (ie (HK$5,000.00 + HK$8,214.30 + HK$10,000.00 + HK$9,333.00) ÷ 3½ months). Thus, the relevant monthly earnings of the Applicant under section 11 of the Employees’ Compensation Ordinance Cap.282 were HK$9,333.00.

54. In the circumstances, the quantum of employees’ compensation shall be assessed and awarded in favour of the Applicant against the Respondent in the sum of HK$79,143.84 calculated as follows :

(a) section 9 award : HK$9,333.00 x 96 months x 3% = HK$26,879.04;

(b) section 10 award : HK$9,333.00 x 4/5 x 210/30 = HK$52,264.80.

The Applicant did not have any claim for medical expenses under section 10A of the Employees’ Compensation Ordinance Cap.282.

VI. Conclusion

55. I therefore grant judgment for the Applicant against the Respondent in the sum of HK$79,143.84 together with interest thereon at half judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate until payment.

56. There is no reason why costs should not follow event. Save and except for costs of and occasioned by the appeal against Form 9 discussed below, I grant a costs order nisi that costs of the action (and all costs reserved, if any) be paid by the Respondent to the Applicant to be taxed if not agreed. There shall be certificate for counsel and legal aid taxation of the Applicant’s own costs.

57. In respect of costs and occasioned by the appeal against Form 9, I note the following :

(a) the Form 9 was issued on 19^th September 2007;

(b) the Notice of Appeal against Form 9 was filed on 31^st January 2008;

(c) pursuant to a Consent Application filed on 30^th January 2008, the parties applied for expert directions for limiting expert medical evidence to 1 orthopaedic expert for each party, for the Applicant to file and serve the expert report of Dr Johnson Lam on or before 31^st March 2008, and for the Respondent to file and serve the expert report of Dr David Cheng on or before 30^th April 2008;

(d) I granted an order in terms of the proposed directions on 31^st January 2008;

(e) the expert report of Dr Johnson Lam was ready on 25^th February 2008, and filed on 5^th May 2008;

(f) the Applicant’s witness statement was filed on 21^st May 2008;

(g) the Respondent did not file any expert medical report;

(h) at the hearing on 20^th May 2008, the Applicant applied for directions (which I granted) for the expert report of Dr Johnson Lam to be adduced as evidence at trial without calling the maker.

58. It is evident from the above that after consideration of Dr Johnson Lam’s expert report and the Applicant’s witness statement, the Applicant maintained and pursued the appeal against the assessment of loss of earning capacity in the Form 9 until the day of trial. I need not speculate whether it was pursuant to legal advice from the Applicant’s new legal team who took up the case only on 11^th July 2008 that the appeal was eventually abandoned. But suffice to say there did not appear to be any new developments after Dr Johnson Lam’s expert report and the Applicant’s witness statement.

59. In short, the appeal against Form 9 was made and pursued notwithstanding available factual and medical evidence, but withdrawn at the eleventh hour. I therefore make a costs order nisi that there be no order as to costs in respect of costs of and occasioned by the appeal.

(Marlene Ng)
District Court Judge

Representation:

Mr Victor Gidwani instructed by Messrs Szwina Pang, Edward Li & Co for the Applicant.

The Respondent acting in person and absent.

Cites 2 cases

Cases cited in this judgment

Ready Mixed Concrete (HK) Ltd v. Tong Kee Engineering Ltd

Ng Ming Cheong v. Mass Transit Railway Corporation