Wong Po-sin v. New Universal Paper Co Ltd

CACV000015/1972

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 15 OF 1972

(On appeal from V.C.J. Workmen's Compensation Case No. 166 of 1971)

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Coram: Full Court (Blair-Kerr, S.P.J., Huggins and McMullin, JJ.)

Date of Judgment: 5 January 1973

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JUDGMENT

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Blair-Kerr, S.P.J.:

1. I think that this is a suitable opportunity to say a word or two about the powers of this Court in relation to appeals from decisions of the District Court, with particular reference to workmen's compensation matters, in view of the fact that decisions of the English appellate courts in relation to decisions of the County Court in such matters are frequently cited in Hong Kong.

2. In England, the right to appeal from a decision of the County Court on a question of fact has always been limited. Indeed, at one time there was virtually no appeal from decisions of that court as regards findings of fact⁽¹⁾. On the other hand, an appeal always lay on a matter of law. The expression ".... dissatisfied with the determination or direction of the said court in point of law, ........" first appeared in the County Courts Act 1850⁽²⁾. Similar phraseology was adopted by the legislature in enacting s.120 of the County Courts Act 1888⁽³⁾; but s.122 of that Act provided that

"122. On the hearing of an appeal the High Court shall have power to draw any inference of fact, ...".

And s.124 provided that

"124. No judgment or order of any judge, nor any action or matter brought before him or pending in his court, shall be removed by appeal, motion, certiorari, or otherwise, into any other court whatever, save and except in the manner and according to the provisions in this Act mentioned."

3. The 1888 Act was repealed by the County Courts Act 1934⁽⁴⁾. Section 104 of the latter Act was in substance a re-enactment of s.124 of the 1888 Act; s.109 of the 1934 Act was, in part, a re-enactment of s.122 of the 1888 Act; and s.105 of the 1934 Act was substantially a re-enactment of s.120 of the 1888 Act. As the English legislation relating to workmen's compensation was repealed by the National Insurance (Industrial Injuries) Act 1946⁽⁵⁾, we are not concerned in this appeal with s.109 of the County Courts Act 1959⁽⁶⁾ which confers a right of appeal on a question of fact in certain classes of action.

4. The position therefore was that in England, throughout the entire period when workmen's compensation legislation was in force, the hands of the English appellate courts were, to a large extent, tied when dealing with appeals in such matters. This is quite evident from the remarks of the appellate judges. For example in Vamplew v. Parkgate Iron and Steel Co.⁽⁷⁾, Collins, M.R., said:-

"If there was any evidence to support that finding and the county court judge did not misdirect himself in arriving at it, this Court has no jurisdiction to interfere with his finding."

And in Simmons v. Heath Laundry Co.⁽⁸⁾, Fletcher Moulton, L.J., said:-

"The learned county court judge has decided that it was not a contract of service ..... This is a question of fact as to which we cannot interfere with his decision."

Similar observations were made by Holmes, L.J., in Byrne v. Baltinglass R.D.C.⁽⁹⁾ and by Lord Hanworth, M.R., in Williams v. Larsen⁽¹⁰⁾.

5. In England, the absence of an unqualified right of appeal on fact militated to some extent against the building up of a well-considered and consistent body of case law on the subject of workmen's compensation.

6. In Hong Kong (subject to the restrictions in regard to obtaining leave) a general right of appeal on any question of fact was conferred by the District Court (Civil Jurisdiction and Procedure) Ordinance Cap.336. The relevant words in s.39(1) are:-

"..... dissatisfied with a determination or direction ...... in point of law or upon the admission or rejection of any evidence or on any question fact ....".

7. Of course, appeals to this Court in workmen's compensation cases are regulated by s.23 of the Workmen's Compensation Ordinance which (subject to certain restrictions) confers a right of appeal from "any order" of the District Court. Such phraseology clearly contemplates a full right of appeal on fact as well as law.

8. Furthermore, in Hong Kong we adopt the modern approach of the English appellate courts to appeals on questions of fact (in particular the distinction which should always be kept clearly in mind between questions of primary fact and inferences which may reasonably be drawn from such primary facts). This principle has been enunciated in many well-known decisions such as Powell v. Streatham Manor Nursing Home⁽¹¹⁾, Watt v. Thomas⁽¹²⁾, Benmax v. Austin Motor Co.⁽¹³⁾ (all of which call for no further comment here) and also from such cases as Montgomerie & Co. v. Wallace-James⁽¹⁴⁾, in which case Lord Halsbury said:-

"Where a question of fact has been decided by a tribunal which has seen and heard the witnesses, the greatest weight ought to be attached to the finding of such a tribunal. It has had the opportunity of observing the demeanour of the witnesses and judging of their veracity and accuracy in a way no appellate tribunal can have. But where no question arises as to truthfulness, and where the question is as to the proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an appellate court."

This passage was cited with approval by Lord Dunedin when giving the opinion of the Judicial Committee of the Privy Council in Dominion Trust Co. v. New York Life Insurance Co.⁽¹⁵⁾.

9. A much more recent decision involving the law of master and servant may also be mentioned here. In Morren v. Swinton and Pendlebury Borough Council⁽¹⁶⁾, Lord Parker, C.J., said:-

"The terms of the contract of course are fact, and to that extent the determination depends on fact, but it seems to me perfectly clear that, once the primary facts are found, then it is a pure question of law what is the reasonable inference based on the legal interpretation of the contract."

10. With these introductory remarks, I may now consider the decision of the House of Lords in Bobbey v. Crosbie & Co.⁽¹⁷⁾, a decision which has assumed an importance in Hong Kong in matters relating to workmen's compensation which, with respect, I do not think it merits. To put this decision in proper perspective, one has to refer to the report of the proceedings before the Court of Appeal⁽¹⁸⁾. The headnote reads:-

"A company occasionally had goods brought in bulk to their wharf and in such cases they always employed outside labour to unload the cargo. .... they were expecting a cargo of sulphur, and employed a riverside labourer [Watts] to supply a gang to unload it and put it in their warehouse at 1s. 6d. a ton .... the gang came to do the work and [Bobbey], a member of the gang, met with an accident .... It was a common thing among the riverside labourers that one of their number should be employed to collect a gang of men for a job, and the custom was that the gang and ganger should divide what was paid for the job equally ..... [Watts] had to supply the necessary ladders and tools, and [the respondents] provided bags for the sulphur. The [respondents'] managing director was present during the unloading to see that no sulphur was spilt and no space wasted in the warehouse in storing it. He gave his orders to [Watts]."

The County Court judge held that there was a contract of service between the respondents and Bobbey. On appeal, Lord Cozens-Hardy, M.R., said (p.859) :-

".... there was not a particle of evidence of any such contract. The only contract was with Watts. Bobbey could not have sued Crosbies for wages. There was no bargain as to the number of members of the gang. They were not selected by, or even approved by, Crosbies. On this point the appeal succeeds."

In 1915 when the case came up to the House of Lords, the County Courts Act 1888 was still in force; and Lord Loreburn said (referring to the facts as found by the County Court judge) :-

"Could the learned County Court judge reasonably find that Messrs. Crosbie employed this workman, or was he obliged to find that they contracted with a man named Watts that he should do this work or get it done and provide his own labourers .... the evidence .... admits of either view as a conclusion of fact ....".

Lord Loreburn went on to say that there was "material which justified" the County Court judge finding that

"Bobbey was not employed by Watts; he was rather in the nature of a worker with Watts, and he and the rest of the gang agreed - Watts being the spokesman - to do this work for Messrs. Crosbie; in other words, they were employed by Crosbie to do this work ....".

11. As it seems to me, Lord Loreburn was saying, in effect: "This is a borderline case. No question arises as to there being no evidence to support the decision of the County Court judge; therefore, as our legislation does not provide for appeals on questions of fact in such circumstances, it was not open to the Court of Appeal to interfere."

12. Turning now to the facts of this case. The deceased, WONG an-shun, was killed on 4th January 1971. He was one of four labourers engaged in transferring rolls of paper (each roll weighing some 400 to 500 lbs.) from the respondent company's godown on to lorries parked outside the godown. As found by the District Judge:

"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 on to 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."

It appears that as one of these heavy rolls of paper was being rolled up the planks it fell on top of the deceased thereby injuring him so severely that he died.

13. In the application for compensation under the Workmen's Compensation Ordinance, it is pleaded that the deceased was a workman employed by the respondent company; and that was the only issue before the trial judge.

14. The appellant (the deceased's sister) who instituted the proceedings on behalf of the deceased's dependants said in evidence that the respondent company "deals in foreign papers". The remainder of her evidence does not call for consideration in this appeal.

15. The only other witness called by the appellant was one NG Fat who was one of the 4 labourers engaged in loading the rolls of paper on the lorries. The trial judge found him to be a truthful witness. Therefore, as the respondent company called no evidence and stood by their "no case to answer" submission no question of a conflict of testimony arose. Our only difficulty, as so frequently happens in cases coming up on appeal to this Court, is the lack of evidence on a number of important matters.

16. Be that as it may, as regards the remaining facts, the trial judge recorded his findings in these words:-

The appellant did not challenge the learned judge's findings of fact.

17. The decision of this Court in WONG Man-luen v. Hong Kong Wah Tung Stevedore Co.⁽¹⁹⁾ was very much in the minds of the solicitors appearing for the parties and indeed in the mind of the trial judge, who after referring to Short v. Henderson⁽²⁰⁾, Market Investigations Ltd. v. Minister of Social Security⁽²¹⁾, Bobbey v. Crosbie⁽¹⁷⁾ and CHAN Shek-kin v. Hip Shing Printing Press⁽²²⁾, endeavoured to distinguish this case from Bobbey v. Crosbie⁽¹⁷⁾, WONG Man-luen⁽¹⁹⁾ and CHAN Shek-kin⁽²²⁾.

18. Short v. Henderson⁽²⁰⁾ was a workmen's compensation case; but the Market Investigations⁽²¹⁾ case arose out of the appellants' application to the Minister for Social Security for a decision as to whether a certain lady was an employed person, or in the class of self-employed persons, for the purposes of the National Insurance (Industrial Injuries) Acts 1946 and 1965.

19. On this appeal we were referred to Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance⁽²³⁾. That was also a case involving the National Insurance legislation and the question for decision arose in precisely the same way as in the Market Investigation⁽²¹⁾ case. Delivering the judgment of the Divisional Court, Cooke J. referred to United States of America v. Silk⁽²⁴⁾, a case in which the judges of the Supreme Court decided that the test to be applied was not "power of control, whether exercised or not, over the manner of performing service to the undertaking", but whether the men were employees "as a matter of economic reality". Cooke J. continued thus (pp.184/5) :-

".... 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."

20. As in so many of those "gang" cases, the facts in the Silk case and in the present case are comparable in a number of respects, except that there is nothing in the present case to suggest that the four casual labourers were members of any trade union or that there is in operation in Kowloon a "group system" (as in Short v. Henderson Ltd.) or a "call list" (as in the Silk case - p.707) the existence of which was known to all parties. But perhaps one distinguishing feature between the Silk case and this case is that the company (Albert Silk Coal Co.) paid the men delivering the coal out of the price of the coal which the company received from that particular customer (p.706). This would appear to suggest some limited degree of integration into the business of the Albert Silk Coal Co.

21. The Silk case was brought under the United States Social Security Act 1935, under which employers were taxed (on the basis of the number of employees to whom they paid wages) for the purpose of creating a fund for the payment of annuities to the elderly and compensation to workers during periods of unemployment. Messrs. Silk disputed certain assessments for tax which had been made upon them in respect of workers who were engaged in unloading coal from railway waggons and making retail deliveries of the coal by truck.

22. I might also mention that the judges of the U.S. Supreme Court appear to have considered that the principle governing statutory interpretation (at any rate as regards legislation of this sort) is that the courts must do everything possible to give effect to the purpose of the legislation. For example, Reed, J., said (p.712):-

"As the federal social security legislation is an attack on recognised evils in our national economy, a constricted interpretation of the phrasing by the courts would not comport with its purpose ...."

a purpose which he had earlier described as the result of an effort on the part of the President and Congress to solve

".... the evil of the burdens that rest upon large numbers of our people because of the insecurities of modern life, particularly old age and unemployment ....".

23. The cardinal rule of statutory interpretation in our courts is certainly not that we should give effect to the purpose of legislation, come what may. Nor can we permit a general desire to give effect to legislation overrule well-recognised principles governing the formation of contracts.

24. We were also referred to a passage from the judgment of Denning, L.J., in Stevenson Jordan & Harrison Ltd. v. McDonald & Evans⁽²⁵⁾, which reads (p.111) :-

"One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business; whereas under a contract for services, his work although done for the business, is not integrated into it but is only accessory to it."

25. The question in Stevenson's case arose by reason of the fact that a professional man (an accountant) had, after severing his employment with a company engaged in business management, attempted to publish a book about business management based on his experience and knowledge acquired during such employment; and one of the questions in the case was whether he had been in the employment of the company under "a contract of service" within the meaning of proviso (b) to s.5(1) of the Copyright Act 1911.

26. Counsel for the appellant also referred us to a number of passages from two text books viz. "Vicarious Liability in the Law of Torts" by Mr. P.S. Atiyah and "Principles of Labour Law" by Mr. Rideout (pp.6-10). We were also referred to an article entitled "Wage - Slave or Entrepreneur" by Mr. C.D. Drake in Vol. 31 of the Modern Law Review (p.408), and to an interesting, indeed stimulating, article entitled "Self-Employment in the Building Industry" by Mr. John Rear in Vol. 2 of the Hong Kong Law Journal (p.150) in which the learned author discusses recent decisions including the CHAN Shek-kin⁽²²⁾ and WONG Man-luen⁽¹⁹⁾ cases. The passage from Mr. Rideout's text book, on which counsel for the appellant relied particularly, reads (pp.10/11) :-

"... if vicarious liability is the issue, control should be of primary importance, whilst if qualification to receive industrial benefits is to be decided the main consideration should be the worker's lack of capital and his economic dependence on the payment he receives from a regular employer for his work. Perhaps we must admit that the test of the existence of a contract of employment is, for some purposes, not the proper one, and that we should ask whether the operative habitually works for a particular employer."

27. In these text books and articles the learned writers endeavour to extract some principle or principles from this "wilderness of single instances"⁽²⁶⁾; and they give labels to certain "tests" for the existence or non-existence of a contract of service which their reading of the cases appears to disclose. These include what they describe as the "control" test, the "organisational or integration" test, the "entrepreneurial" test and the "composite" test. Counsel for the appellant adopted this approach; and, as I understood him, his complaint was that the trial judge reached his conclusion by applying the "entrepreneurial" test to the exclusion of the other three "tests"; in effect that he failed to consider the evidence as a whole.

28. As I have said, the decision of this Court in the WONG Man-luen case⁽¹⁹⁾ was clearly very much in the mind of the trial judge. But, from a careful reading of his judgment, I am unable to agree that he failed to consider the evidence as a whole. He reached his conclusion not by applying any particular "test" but simply by asking himself whether, on the whole of the evidence, a contract of service existed between the deceased and the respondent company, that is to say whether the deceased was "a workman" within the meaning of s.2(1) of the Ordinance.

29. I do not think it is necessary to deal further with the cases cited to us except to say this: A judgment must always be read in the light of the facts of the particular case to which it relates; and I feel bound to say that the facts in the Market Investigations⁽²¹⁾ and the Ready Mixed Concrete⁽²³⁾ cases (occurring as they did in Britain, a highly socialised welfare state, under a system of National Insurance) are very different from the facts in this case.

30. The trouble in the WONG Man-luen appeal was that there was very little evidence on a number of vital questions and, even more difficult from our point of view, the findings of fact on those matters were far from clear. Strictly speaking, I do not think that we should have made findings of fact ourselves (as we were persuaded by counsel to do). But, on appeal (particularly in these workmen's compensation cases) it is aways a very serious matter to have to send a case back for retrial, thereby incurring long delays, not to speak of greatly increased legal costs.

31. In testing the correctness of the trial judge's decision in this case, I find a passage from Mr. Atiyah's text book helpful. At p.38, the learned author says:-

".... it is exceedingly doubtful whether the search for a formula in the nature of a single test for identifying a contract of service any longer serves any useful purpose ..... clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones. The plain fact is that in a large number of cases the court can only perform a balancing operation, weighing up the factors which point in one direction and balancing them against those pointing in the opposite direction. In the nature of things it is not to be expected that this operation can be performed with scientific accuracy."

I also find certain observations in Mr. John Rear's article most helpful. At pp.155/7, the learned author says:-

"The principal relevant factors (apart from control) which have been held to point in the direction of a contract of service i.e. an employer/employee (or in the old terminology, a master/servant) relationship are set out below. It cannot be too strongly emphasised, however, that these are merely pointers and that each taken by itself counts for very little, if anything. Moreover, it has been said in the most recent English case that 'whether the contract is one of service depends in the last resort on whether an ordinary person would so consider it in the light of his experience and knowledge.'⁽²⁷⁾. The factors are:-

32. With regard to factor (12), it is of interest to note that in the Ready Mixed Concrete⁽²³⁾ case, the written contract declared one of the parties to be an independent contractor; but the court found that he was an employee. McKenna, J., said (pp.512/3) :-

".... whether the relation between the parties to the contract is that of master and servant or otherwise is a conclusion of law dependent upon the rights conferred and the duties imposed by the contract. If these are such that the relation is that of master and servant, it is irrelevant that the parties have declared it to be something else. I do not say that a declaration of this kind is always necessarily ineffective. If it were doubtful what rights and duties the parties wished to provide for a declaration of this kind might help in resolving the doubt and fixing them in the sense required to give effect to that intention."

33. In this case the respondent company had no direct dealings of any kind with the deceased. The agreement was reached as a result of a conversation between an official of the respondent company (Chan) and NG Fat. The agreement, as it appears to me, was that for $6 or $7 per roll (depending on the weight of the roll), NG Fat would arrange for the transportation of a number of rolls of paper from the respondent company's godown to some address on Hong Kong Island. It was left to NG Fat, or whoever he chose to work with, to hire the necessary lorries (in fact the judge has found that it was the deceased who did so). There is nothing in the evidence to suggest that this was done on behalf of the respondent company or that the company made any payment for such hire. Nothing was said to NG Fat as to how many fellow-workers he should recruit for the job or as to their identity. It was left entirely to him to decide. As I read the evidence, there would have been no objection to his working with 7 others instead of 3 others, or to their having hired twice as many lorries. It was entirely up to NG Fat and his friends as to how they did the job.

34. As regards control of what was to be done, that was all agreed between the company and NG Fat. There was really only one thing to be done on this occasion, and on each of the previous occasions during the month prior to the deceased's death viz. to transport by lorry so many rolls of paper at so much a roll to a given address. Apart from the respondent company's godown keeper identifying the actual rolls of paper to be loaded onto the lorries, the company did not in fact control the manner of loading. From the evidence of NG Fat, it would appear that the question of control did not really arise at all. After all, loading lorries in the manner decided upon by these coolies, although unskilled work, did not call for any supervision or control.

35. During the appeal, the question was posed as to what would have been the result if (after the agreement between Chan and Ng) some official of the company had insisted on NG Fat and his friends using a crane to load the lorries. I think the answer to that question is that this might well have altered the agreement to a degree which might have justified NG Fat rescinding it. But, it is pointless to speculate on a matter of this sort.

36. As regards Mr. Rear's factor (1), clearly, so far as the respondent company was concerned, there is nothing in the evidence to suggest that it was part of the arrangement between Chan and NG Fat that the deceased specifically should be amongst those, if any, whom NG Fat might recruit to assist him. Their only concern was that the rolls should be transported for $6 or $7 per roll.

37. As regards factor (2), I do not see how dismissal in the ordinary sense could have arisen because the deceased was never "engaged". Once NG Fat and Chan came to their agreement, it was NG Fat who got in touch with the deceased and then the others were asked to join in. As it seems to me, the identity and number of coolies engaged on the job was a matter for NG Fat, or at any rate the coolies themselves, to decide.

38. In these circumstances let us suppose, by way of example, that the respondent company's godown keeper had caught the deceased stealing something from the godown. In view of the arrangement with NG Fat, presumably they would have said to NG Fat: "Get rid of that man or our arrangement regarding these rolls of paper is at an end." But "dismissal" in the ordinary accepted sense in which this word is used could not have arisen.

39. As regards factors (3) and (4), if NG Fat and his friends had numbered 8, it naturally meant that each would have got half as much for the job as they in fact got, there being 4 of them. It was piece work; and if the respondent company had failed to pay the $6 or $7 I have the gravest doubts as to whether the deceased could have successfully sued the company - at any rate if he alone had instituted proceedings.

40. As regards factors (5), (6), (10) and (11), there was no question of these coolies being "engaged generally", or the respondent company being entitled to demand their "exclusive services". They were casual workers. Counsel for the appellant agreed that they fell within the class of persons described by Pickering, J., in the WONG Man-luen⁽¹⁹⁾ case as a:-

".... body of labourers the members of which, though not employed on a permanent basis by any firm or individual, are to be found, day by day, in specific locations holding themselves available for employment by any employer who has work for them to do."

And, as I have said, the respondent company was not concerned in the slightest with the number and identity of NG Fat's friends engaged in this job of transportation, although he and the deceased had in fact done jobs of this kind for the respondent company during the one month prior to the deceased's death; and there is nothing in the evidence to suggest that the respondent company required NG Fat, and whoever he might be working with, to start loading at a certain time or as to how long they should take over the job.

41. As regards factor (7), of course, the loading of the rolls onto the lorries was done at the respondent company's godown.

42. As regards factor (9), the main items of "equipment" were the lorries; and it was left to the coolies to hire them. It appears that they also owned a trolley. The only equipment provided by the respondent company were 2 planks.

43. The evidence relating to the nature of the respondent company's business is scanty. All we know is that they "dealt" in foreign papers. Presumably this means that they imported these rolls of paper from abroad and sold them locally; but there was no evidence as to whether they had lorries of their own; and, if so, whether such lorries were used, on other occasions, for the transportation of paper to the premises of whoever might have purchased the paper from them - assuming that the sale of paper locally formed part of the company's "dealings" in this commodity.

44. In view of all this, how can it be said that these coolies were "integrated" into the respondent company's business? All we know is that NG Fat and the deceased had done jobs of this sort for the company during the previous month. We do not even know whether, in carrying out these jobs, there was always 4 of them or as to the identity of the remaining two.

45. How can it be said that these casual coolies were "economically dependent" on the respondent company or that any of them "habitually" worked for this particular company? It is simply not so.

46. With regard to this type of case, Mr. Ativah visualises four possibilities depending, of course, on the evidence in any particular case. He says (p.93) :-

47. In this case I suppose that, in a sense, NG Fat could be called the "leader" because it was he who negotiated with the respondent company, the company "assigned" the work to him, and he signed the receipts for the payments made by the company. But NG Fat cannot possibly be said to be a "servant" of the respondent company "with authority to engage inferior servants". Try as I like, I am quite unable to see how possibility (a) could apply to the facts of this case. Nor does possibility (b).

48. The trial judge has found that these 4 labourers were "in business on their own account this being in the nature of a joint venture". That is to say that they were partners inter se but not jointly employed by the respondent company under a contract of service. In my view, he came to the correct conclusion.

49. For the above reasons, on 5th January, 1973 we dismissed the appeal, indicating that we would record our reasons later.

50. I should add that one of the grounds of appeal filed read:

"Alternatively that there was evidence that the deceased was employed by a contractor, the said NG Fat, with the respondent for the execution of work undertaken by the respondent ....".

This ground of appeal was abandoned by counsel because, as he said, this was never pleaded; and the appellant's whole case, as presented to the trial judge, was that the deceased was employed by the respondent company. Section 24 of the Ordinance, therefore, had no application.

Representation:

D. Chang (Gunston & Chow) for appellant.

M. Lee (Alexander Tsang & Co) for respondent.

(1) Vide Halsbury's Statutes (1st Ed.) Vol.3 p.883 and cases there cited.

(2) 13 and 14 Vict. C.61 s.14.

(3) 51 and 52 Vict. C.43.

(4) 24 and 25 Geo V C.53.

(5) 9 and 10 Geo VI C.62.

(6) 7 and 8 Eliz 2 C.22.

(7) [1903] 1 K.B. 851 at 852.

(8) [1910] 1 K.B. 543 at 550.

(9) [1911] 45 Irish Law Times 206 at 208.

(10) [1928] 21 B....(illegible).C.C. 339 at 343.

(11) [1935] A.C. 243 at 249/50.

(12) [1947] A.C. 484 at 487/8.

(13) [1955] A.C. 370 at 375.

(14) [1904] A.C. 73 at 75.

(15) [1919] A.C. 254 at 257/8.

(16) [1965] 2 All E.R. 349 at 352.

(17) [1916] 85 L.J.K.B. 239.

(18) [1915] 84 L.J.K.B. 856.

(19) [1971] H.K.L.R. 390.

(20) [1946] 115 L.J.P.C. 41.

(21) [1969] 2 W.L.R. 1; [1969] 2 Q.B. 173.

(22) [1965] D.C.L.R. 93.

(23) [1968] 2 Q.B. 497.

(24) [1946] 331 U.S. 704.

(25) [1952] 1 T.L.R. 101 C.A.

(26) Tennyson "Aylmer's Field".

(27) Challinor v. Tavlor [1971] The Times, December 22 (N.I.R.C.).

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

ACTION NO. 15 OF 1972

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Coram: Blair-Kerr, Huggins and McMullin, JJ.

Date of Judgment: 5 January 1973

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JUDGMENT

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Huggins, J.:

51. I agree that this appeal should be dismissed. The evidence was scanty and there are matters of fact which one would have expected to be investigated at the trial but which received only passing reference. However, the case had to be decided by the learned judge on such evidence as was available.

52. At a somewhat late stage it was contended that the Appellant was seeking to argue a point before this Court which had not been taken in the court below. In my view that contention fails. The issue before the learned trial judge and before us was whether the Deceased was a workman within the meaning of the Ordinance.

53. The substance of the case for the Appellant on behalf of the dependants is not, as I understand it, that the learned judge applied an entirely wrong test in deciding whether the Deceased was a workman, but that he attached either too much weight or too little weight to some of the relevant factors. Reference was made in the course of the argument to various tests which academic writers have sought to extract from the decided cases, but in my view those cases show nothing more than that in different circumstances different factors assume greater significance. It is wrong to regard any one of those factors as in itself a conclusive test which will govern the decision of all possible cases. As counsel for the Respondents put it, one must look at the totality of the particular relationship.

54. Counsel for the Appellant did not base his argument upon the decision of this Court in WONG Man-luen v. Hong Kong Wah Tung Stevedore Co. 1971 H.K.L.R. 390, but counsel for the Respondents has submitted that the judge was right to distinguish that case. In that case also the evidence was scanty in the extreme but, more important, the judge failed to make clear findings of fact upon the evidence there was and it was that which gave me so much anxiety. On the findings which he had made the judge did not say merely that he was not satisfied the applicant was a workman but that he was satisfied he was an independent contractor. I was persuaded (by counsel) that we could properly make our own findings and that on balance they pointed towards a contract of service. While I am still not without some anxiety at the appellate court's having made findings of fact, I see no reason to believe that our decision based upon those findings was wrong. The facts of the present case, although similar in some respects, are by no means identical and I agree with Mr. Lee that there are here sufficient distinguishing features to tilt the scale the other way: there there was evidence pointing to a measure of supervision, which is absent in the present case: there the employer specified the number of workmen who were to be engaged, whereas here it was open to NG Fat to engage whom he would: there there was a statement that one of the employees had hired lorries "on behalf of the employers", supported by an admission that the employers had on some previous occasions provided their own lorries, but here there was nothing to show whether the lorries were hired on behalf of the employees or on behalf of the employers. In every case under the Ordinance it is for the applicant to establish that the injured person was a workman and in the present case the Applicant did not begin to discharge the burden which was upon her. In WONG Man-luen's Case the applicant called evidence which would support findings indicative of a contract of service and, as I have said, the doubt was whether the appellate court should make findings where none had been made by the trial judge. On the issue whether the contract of employment was one of service or one for services the two cases are on the border-line, but in my view one falls on one side of it and one on the other. The result may be hard upon the dependents in the present case but we should not allow our sympathy with them to bend legal principles beyond their breaking point. It is certainly no part of our function to seek to "come up with a formula which will bring this type of lowly paid casual labourer within the master-servant relationship".

Representation:

D. Chang (Gunston & Chow) for appellant.

M. Lee (Alexander Tsang & Co) for respondent.