Wong Po Sin v. New Universal Paper Co Ltd

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN’S COMPENSATION CASE NO. 166/1971

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Between

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Coram: T.L. Yang, D.J. in Court

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JUDGMENT

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1. This is an application made on behalf of the dependants of the deceased labourer for compensation under the Workmen’s Compensation Ordinance.

2. It is not disputed that the deceased was killed in a fatal accident when a roll of paper weighting some 400 to 500 pounds which he was loading onto a lorry fell on top of him.

3. The only real issue between the parties is whether the deceased was a workman employed by the respondent company. On this question I have before me the evidence of another labourer Ng Fat who was on the day of the accident engaged in the same kind of work with the deceased. I am satisfied that Ng Fat is a witness of truth and it is on his evidence that I find the following facts proved.

4. Both the deceased and Ng Fat belonged to that class of labourers or coolies who earned their livelihood by making themselves available for such work that any person or persons might from time to time engage them to do. Prior to the day of the accident, both men had worked for the respondent company for at least a month. According to Ng Fat, the practice was that if the respondent company had no work for him to do, he would work for others. On the other hand, when the respondent company required him to do work, they would contact him by telephone, and he would ask the deceased if he was willing to do the work, if so, they would then work together. On the day in question four labourers including the deceased and Ng Fat were working “for the respondent company” in loading rolls of paper onto lorries, each roll weighing some 400 to 500 pounds. In doing this work, a trolley was used to convey the roll of paper to a position near the lorry and the men would then roll the paper onto the vehicle with the assistance of two wooden planks. The trolley was owned by the labourers, but the planks were supplied by the respondent company.

5. When the respondent company had such a job to be done, their “boss” Mr. Chan would (in the words of Ng Fat) “assign” the work to Ng Fat and he would then recruit other workers to work together with him. Mr. Chan “looked for” him to do the work, but as he could not do the work by himself, he had to obtain other labourers. Though Mr. Chan knew about this, he never spoke to Ng Fat about getting other men to help him. Both parties assumed that this would be done, and the same arrangements had been made before. The respondent company in fact seldom knew how many men were working with Ng Fat. It was the deceased who decided whether to recruit additional labourers or not, after discussion with Ng Fat and having regard to the weight of the goods to be moved.

6. It does not appear that there was any control by the respondent company over the work done by Ng Fat and his men. The respondent company’s godown keeper simply told the four labourers which particular consignment or type of paper was to be put onto the lorries (See Crowley v. Limerick(1); Bray v. Kirkpatrick & Sons(2)) These four men would then agree on what to do and on the best way to load the paper. “The godown keeper did not care how we did the job.”

7. For each roll of paper thus loaded, the respondent company paid $6 or $7, depending on the weight. Payment was made by the cashier of the respondent company to Ng Fat who, as a matter of convenience and because he knew the respondent company and the work was “assigned” to him, signed the receipt on behalf of himself and the other men. On the average, these men could handle as many as 40 to 50 rolls of paper per day. From their income the four labourers had to pay for such disbursements as the ferry fares for the lorries and the purchase of tools and the trolley. The remainder was shared between the four men equally. The ferry fares might be anything from several tens of dollars to $100, depending on the quantity of goods which was transported on the lorry. On the average the income before disbursements was about $200 per day. Disbursements were usually $20 to $30 per day. The net income for each labourer averaged $40 to $50 per day. The custom was therefore for the labourers to be responsible for disbursements which in fact never came to more than the remuneration received from the respondent company. It was also the responsibility of the deceased to hire the lorries.

8. The labourers looked to the respondent company for payment. If the respondent company failed to pay Ng Fat, the rest of the gang would not be paid by him.

9. After the accident Ng Fat was requested by the respondent company to use a chop for the receipt of payments instead of signing his name on behalf of himself and the rest of his gang. As this was a change that came into effect after the accident, I place no reliance on it.

10. Having stated the facts I now turn to the authorities. I begin by referring to Wong Man Luen v. Hong Kong Wah Tung Stevedore Company (Civil Appeal No. 17 of 1971), which came before the Full Court last year. Following Short v. Henderson(3), Huggins J. held that the fact that the Respondent company did not exercise control over the manner in which the work was to be performed was inconclusive. Pickering J. also referred to Market Investigation Ltd. v. Minister of Social Security(4), where it was held that control though a matter for consideration, was not decisive and the fundamental test in determining whether a person was performing services under a contract “of service” or “for services” was whether the person engaged to perform those services was performing them as a person in business on his own account and thus under a contract for services. Cooke J. said in the Market Investigations Case (at pp. 9-10):-

“……. the fundamental test to be applied is this ‘Is the person who has engaged himself to perform these services performing them as 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 consideration 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.”

11. In further explaining this “fundamental test”, Pickering J. said:-

“As we see it the status of being in business on one’s own account implies the possibility not only of profit but also of loss and when this test is applied to the appellant’s situation in relation to the work which he was performing at the time of his injury, it is impossible to perceive the possibility of financial loss accruing to him. His contract was to deliver certain goods with the assistance of vehicles and additional coolies and to be paid for that service upon its conclusion by reference to the cost of hiring the vehicles and to the number of cases transported by the gang of coolies. No possibility of loss existed and applying this modern test it would appear that both from the viewpoint of the exercise of control by the respondent firm and of the method of remuneration adopted that the appellant was in fact a workman rather than an independent contractor.”

12. I have also perused and considered Bobbey v. Crosbie & Co.(5), and the decision of Judge Pickering (as he then was) in CHAN Shek-kiu v. Hip Shing Printing Press(6).

13. In the present case, the lack of control is of course inconclusive. The tools and the trolley were owned by the labourers, except for the planks, which were provided by the respondent company. It was entirely up to the deceased and Ng Fat to decide whether to recruit other labourers or not. It may be further noted here that both Huggins and Pickering J.J. in the Wong Man Luen Case (supra) observed that if the appellant were an independent contractor it would have been entirely up to him how many additional men (if any) were needed. The labourers themselves being responsible for the hiring of lorries, the ferry fares, and the purchase of tools, there was quite clearly a degree of financial risks involved.

14. In the Wong Man Luen Case the respondents instructed one Ko Chu and the appellant to effect delivery of certain goods with the further instruction that two additional men should be engaged if Ko Chu and the appellant could not handle the work. The respondents also asked Ko Chu to hire the necessary lorries on their behalf. Both these factors are absent in the present case.

15. Unlike CHAN Shek-ku v. Hip Shing Printing Press (supra) where $25 to $30 was paid by the respondents to the applicant for the purchase of ropes in addition to wages, here the labourers had to buy the tools themselves. Unlike Bobbey v. Crosbie & Co. Ltd. (supra), where the respondent company asked a workman called Watts to supply a gang of workmen, here the respondent company simply approached Ng Fat and it was left to the deceased and Ng Fat to decide whether additional men were required. The purchase of tools and the trolley was clearly an investment in that these articles helped the labourers to enhance their earning power. The responsibility of hiring lorries and of engaging additional men (if any) required a degree, slight though it was, of business sense and management.

16. Applying the test laid down by Cooke J. and Pickering J. (supra), I am constrained to find that the applicant, together with Ng Fat and the other two labourers were in business on their own account, this being in the nature of a joint venture. My conclusion is that the applicant was not employed by the respondent company as a workman within the meaning of the Workmen’s Compensation Ordinance.

17. This finding is sufficient to dispose of this application. However should my decision be reviewed elsewhere, it might be helpful if I dealt with two further matters.

18. Firstly, the applicant claims that the average wage of the deceased was $1,400 p.m. On Ng Fat’s evidence, which I accept, the average wages were $40 to $50 per day. There is no evidence how many days in a month the deceased actually obtained work, but it is unlikely that labourers engaged in this type of work got work every day of the month. Taking the most favourable view, I would , as an arbitrary estimate, say that on average the deceased earned $45 per day for 25 days in any one month, thereby making his average monthly earnings $1,125.

19. Secondly, on the evidence of the deceased’s sister Madam Wong (which I accept), I find that some of the deceased’s dependants are full dependants, whilst others are partial dependants. All the dependants reside in China and each requires an absolute minimum of JMP 10 to 20 per month (say JMP 15 on the average) to live. The deceased used to remit HK$200 (about JMP 100) for his wife and children each month. The widow earns about JMP 22 per month. The eldest son Wai Hoi earns JMP 10 to 20 (say JMP 15) per month. The second son Kong Hon and third son Tung Hoi earn the same amount. To each of these three sons, their mother sent about JMP 10 per month, as their own income was not sufficient. It is therefore a fair assumption the deceased’s family was used to a standard of living which required at least about JMP 25 (about HK$50) per person per month. The eldest daughter Shiu Ying and two younger sons Shing Hoi and Pak Hoi were full dependants. The deceased’s mother, 73 years of age, received about HK$25 per month from the deceased, and about the same amount from Madam Wong. It is not disputed that the mother received from her two children about HK$50 per month which is equivalent to about JMP 25. The mother is therefore a partial dependant also.

20. As there were three full dependants and five partial dependants the compensation I would have assessed and awarded would be $40,500 ($1,125 x 36).

21.As I have already found that the deceased was not a workman, this application must be dismissed with costs on Scale V.

D.B. Gunston (Gunston & Chow) assigned for applicant.

A. Tsang (A. Tsang & Co.) for respondent.

(1)  C.C. (1923) 2 I.R. 178

(2)  (1919) 12 B.W.C.C. 493

(3)  (1946) 115 L.J.P.C. 41

(4)  (1969) 2 W.L.R. 1

(5)  (1915) 85 L.J. (KB) 239 9 B.W.C.C. 142

(6)  (1965) D.C.L.R. 93