Pun Wai Ming v. Tsang Chung Kai
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CACV 301/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 301 of 2008 (On Appeal from DCEC No. 946 of 2006) ----------------------
---------------------- Before: Hon Yeung, Yuen JJA and Lam J in Court Date of hearing: 17 February 2009 Date of judgment: 29 June 2009 ---------------------- J U D G M E N T ---------------------- Hon. Yeung JA: 1.I have the benefit of reading the draft judgment of Yuen JA. I agree with her judgment and an order is made in terms of paragraph 19 hereof. Hon Yuen JA: 2.This is the Respondent’s appeal from a judgment of District Judge Mimmie Chan given on 7 August 2008 awarding employees compensation to the Applicant. Background 3.The Applicant claimed that he was employed by the Respondent as a cross-border lorry driver and that he slipped and fell when he was alighting from the lorry at the customs point at Man Kam To in the Mainland. He injured his elbow and was assessed to have suffered a 3% permanent loss of earning capacity. 4.The Respondent denied that the Applicant was his employee. His case was that the Applicant was an independent contractor. As a fallback, the Respondent’s case was that even if the Applicant was his employee, the injury sustained did not arise out of and in the course of his employment. 5.The trial took 3 days. Both parties were represented by counsel. The judge reserved her decision and handed down an 18- page judgment in which she discussed the issues and evidence in detail. The judge found that the Applicant was an employee of the Respondent and that the accident did arise out of and in the course of his employment. The judge awarded the Applicant compensation in the sum of $63,107 with interest and costs. Ground of appeal 6.The Respondent appealed on two grounds:
First ground of appeal 7.The first ground of the Respondent’s appeal involves the issue of delegation (actual or permitted) of some part of the Applicant’s driving duties to a driver in the Mainland. 8.The judge accepted the Respondent’s evidence that the Applicant had introduced him at a restaurant to a person called Ah Kwai and had told him that Ah Kwai “was the employee Mr Pun [the Applicant] had hired to assist him in delivering goods in China” (para. 21). The judge must have accepted that “delivering goods” entailed some driving by Ah Kwai as she said:
9.The judge did take this factor into account when she was considering the many features of the relationship between the Applicant and the Respondent (para. 29) before deciding that the Applicant was an employee. 10.In this respect the judge held (para. 33):
11.In my view the judge was entitled to take this approach. The Respondent’s counsel has not cited any authorities to the effect that any assistance, however minimal, received by an employee from a person he hired would be conclusive evidence against a finding of employment. In Express & Echo Publications Ltd v Tanton [1999] ICR 693 the driver had the absolute right at his discretion to arrange for a substitute driver at any time. The Court of Appeal held that it was a contract for services. In the judgment the court referred to McKenna J’s judgment in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, 515 where he said:
12.In the absence of authority that any assistance or delegation would be conclusive against a contract of service, the judge had to look at the evidence on this issue (and in this case there was no evidence as to how Ah Kwai was involved in the Applicant’s work or the extent to which Ah Kwai was involved) together with all the other evidence in the case before the court. 13.In this respect it is important to bear in mind what the Applicant’s work entailed. He was the sole registered driver of the cross-border lorry in question. At the control points both in Hong Kong and the Mainland, a driver’s documents are checked to ensure that the lorry is driven by the registered driver. Therefore for a Hong Kong - Mainland - Hong Kong round trip, the Applicant would at least have to drive the lorry from Hong Kong to the control points in Hong Kong and the Mainland on the outward leg, and again from the control points in the Mainland and Hong Kong and back in Hong Kong on the return leg. As for the part of the journey on the Mainland, the Respondent’s own evidence was only that Ah Kwai was introduced to him as someone who would “assist” the Applicant in delivering goods, and even if that were to be regarded as including driving, that would still mean that the main bulk of the driving work would still be done by the Applicant. This distinguishes this case from Express & Echo v Tanton. In light of the factual matrix in the case before us, I do not think this court can say that the judge was wrong in her decision. Second ground of appeal 14.The second ground of the Respondent’s appeal challenges the judge’s acceptance of the Applicant’s evidence as to how he was injured. He said that he parked the lorry at Man Kam To Customs and slipped when climbing down from the lorry to collect customs declaration documents. 15.The Respondent sought to challenge this evidence by calling Mr Li, a staff member of a mainland company. He was responsible for preparing customs declaration documents for his company’s goods to be transported to Hong Kong. He had asked the Respondent to send a lorry to collect some goods for transportation to Hong Kong. In due course he supervised the loading of the goods onto the lorry with a person whom he took to be the “driver”. Afterwards he was telephoned by someone claiming to be the driver of the lorry asking him to bring the custom declaration documents. When he did so he saw that this man was not the “driver” he had seen earlier when the goods were loaded. The man who had telephoned him was standing beside the lorry and asked him to hand over the documents to the customs officer immediately as his arm was painful and he did not want to wait anymore. 16.The person who was complaining about the painful arm was the Applicant, and the Respondent argued that since Mr Li said he had seen a different “driver” when the goods were loaded, that proved that the Applicant had not been driving the lorry earlier and therefore the judge should not have accepted his evidence as to when and how he was injured. 17.It is true that the judge did not refer to Mr Li’s evidence in connection with the second ground of appeal but only in connection with the first ground. However there is nothing in the second ground. The judge accepted the Applicant’s evidence as to how he was injured. It is well-established that an appellate court should be very slow to interfere with findings of primary fact. As Lord Hoffmann said in Biogen Inc v Medeva plc [1997] RPC 1 and repeated in Piglowska v Piglowski [1999] 1 WLR 1360:
18.Mr Li’s evidence in fact supported the Applicant’s case that he had injured his arm before getting the customs declaration documents. It might have been different if the Applicant’s case was that he had injured his arm at the time when the goods were being loaded as Mr Li said he saw a different “driver” then, but that was not the Applicant’s case. In any event Mr Li did not explain why he considered that the person he had seen earlier during loading was the “driver” of the lorry. He (Mr Li) only handed him some documents for the goods. There was no evidence as to what that person said or did which led Mr Li to make that assumption. Accordingly there is nothing in this ground either. Order 19.I would dismiss the appeal and order the Respondent to pay the Applicant’s costs of the appeal. The Applicant’s own costs are to be taxed in accordance with legal aid regulations. Hon. Lam J: 20.Subject to what I have to say below regarding the first ground of appeal, I agree with the judgment of Yuen JA. 21.Counsel for the appellant did not seek to argue against the principle of law in McKenna J’s judgment in Ready Mixed Concrete as regards the possibility of having a contract of service where the employee can delegate occasionally or in a limited extent some of his duties to others. The relevant part of the judgment was cited at paragraph 11 of the judgment of Yuen JA. 22.A similar statement of law can also be found at para.39-022 of Chitty on Contracts Vol.II, 30th edn. At that paragraph, the learned editors cited Robinson v Hill [1910] 1 KB 94 where the following proposition was assumed to be correct,
The facts of that case bear some resemblance to our case. The employer baker engaged a vanman to deliver bread to his customers. The vanman, for his own convenience and benefit employed a child to assist him. The vanman paid the wages of the child. The engagement formed no part of the arrangement between the employer and the vanman though the employer was aware of that but only during permitted hours. The case concerns the prosecution of the employer in respect of the employment of the child outside permitted hours. The focus of the court in that case was whether the employer was employing the child outside permitted hours. He was acquitted and the acquittal was upheld on appeal. In the short judgment of Lord Alverstone CJ, His Lordship proceeded on the basis that the employment of the child could be brought about by the vanman as the agent of the employer. However, since there was no knowledge on the part of the employer regarding the child being employed during the prohibited hours, it was held that there was no evidence of a contract of employment of the child on behalf of the employer during those hours. Hence, there was no discussion on whether in such circumstances the vanman should be regarded as employee or independent contractor. 23.That case was also cited by Atiyah’s Vicarious Liability in the Law of Torts (1967) pp.59-61, an authority in turn cited by McKenna J in Ready Mixed Concrete. 24.On the other hand, the editors of Chitty on Contracts, Hong Kong Specific Contracts, 2nd Edn. summarized the position as follows at para.7-010,
25.I have looked at some authorities cited in these textbooks and most of them appear to be cases where the employer could be regarded as delegating to the employee to engage assistants on his behalf. In that scenario, the employer would also be the employer of the assistant engaged by the employee. 26.I do not wish to express a final view of my own in this judgment whether the same principle applies when the employee cannot be regarded as engaging the assistant for the employer. Counsel for the appellant did not draw such a distinction in accepting the principle of law mentioned above and no reference was made to the relevant cases in the course of submissions. Given the relatively modest amount involved in this appeal, I do not deem it appropriate to re-open the appeal for further submissions. 27.I agreed with my lady that the Court of Appeal in Express & Echo v Tanton dealt with a situation where the employee was contractually entitled to delegate completely the performance of the duty to another person and this is not the situation we are dealing with. I have also read the judgment of the Court of Appeal in Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 at p.623, referred to by Peter Gibson LJ in Express & Echo v Tanton. That earlier judgment also did not shed any light on the situation here. 28.For my part, if it was established that Mr Pun was contractually entitled to delegate substantially the driving duty in mainland China to another driver engaged by Mr Pun as his own employee, that would go a long way in establishing that the contract between Mr Pun and Mr Tsang was a contract for service. 29.But the finding of the learned judge at paragraph 33 of her judgment was that it is not clear as to how Ah Kwai was involved in Mr Pun’s work, or the extent to which Ah Kwai was involved. We were taken to the witness statements and the transcript. Having read those again, I agree with my lady that the learned judge was entitled to come to such conclusion. There is no evidence as to the terms of engagement of Ah Kwai as between him and Mr Pun. The evidence as regards Ah Kwai’s duty in respect of driving is minimal. Though it might be open to the learned judge to draw inference from Mr Tsang’s evidence as to the conversation he had with Mr Pun when Ah Kwai was introduced, she was equally entitled to decline to draw an inference that Mr Pun had delegated his substantial driving duties to Ah Kwai in the light of the wordings in Mr Tsang’s witness statement. At the end of paragraph 33, the learned judge said,
30.Like my lady, I see no justification for this court to interfere with that conclusion. 31.For these reasons, I agree that the appeal should be dismissed.
Mr Walker Sham instructed by Au Yeung Cheng Ho & Tin assigned by the Director of Legal Aid for the Applicant (respondent in the appeal). Mr Vincent Lam instructed by Kitty So & Tong for the Respondent (appellant). |
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