Chung Lau Shek v. Ho Wing Hee t/a Wing Wo Co

CACV000169/1985

BETWEEN

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Coram: Roberts, C.J., Silke, J.A. & Power, J.

Date of Hearing: 16 January 1986

Date of Judgment: 16 January 1986

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J U D G M E N T

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Silke, J.A.:

1. This is an appeal from the order of Miss C.B. Chan, sitting as a Deputy Judge of the District Court, making an award under the Employee's Compensation Ordinance to Chung Lau Shek - "the worker" - against Ho Wing Hee trading as Wing Wo Company - "the employer". The award was $67,206.66; under sections 9(1A) and 10, and medical expenses.

2. The employer seeks to impugn that award on several grounds which he presented to us, he being now in person.

3. It was the case for the worker that he was a casual coolie who held himself out for general work at a garden in Cherry Street. That on 28th February 1984 he was approached by a Mr. Chan, who was also a casual coolie, acting as an intermediary for the employer. Mr. Chan recruited him and they left the area at about eight o'clock in the morning and went to the Kowloon Bay Pier in a lorry. He said that the employer went with them. Mr. Ho disputed this and said that he arrived at Kowloon Bay Pier after the lorry had arrived there and after work had commenced.

4. The work was the loading of 1,320 sacks of lime, near a total weight of about 33 tons. These were to be taken from the Kowloon Bay Pier to Sai Kung. This was at the request of the buyer of the lime with whom the employer had made his contract. The employer was present at Kowloon Bay Pier, he travelled on the lorry from Kowloon Bay to Sai Kung and he was present at the unloading and stacking of the bags in Sai Kung. He gave directions as to where those bags were to be stacked. He said to us that the directions, which ne was merely passing on, were the directions of the buyer.

5. In the course of the transfer of these sacks to the storage space, the worker tripped and injured his leg. The lorry with the coolies eventually returned to Tai Kok Tsui, the employer going part of the way, being dropped off near his residence.

6. At Tai Kok Tsui, the worker was given some medicated oil, he rested and eventually went to see a private doctor. That doctor referred him to Queen Elizabeth Hospital. When he went there about ten o'clock in the evening he was found to have a partially ruptured calf muscle. He remained in hospital for about one month and received out-patient treatment for some time thereafter.

7. The worker's evidence is basically that he was a direct employee of the employer. This is strongly contested by Mr. Ho and it is his evidence, and that of his wife, that the wife went to the area of Cherry Street on 27th February with the intention of hiring a transportation company to effect the delivery of the lime. She met Mr. Chan and a contract was entered into for him to transport the sacks of lime at a price of $48 per ton and, as we understand it, this included the supply of a lorry. The employer said that this was a direct contract with Mr. Chan and that it was a matter for Mr. Chan to carry out the work he was contracted to do. He explained his presence both at the pier and at the Sai Kung factory as being to ensure that the work was carried out.

8. The trial judge considered in detail, and with care, the differing evidence given by Mr. Chan, the worker, the employer and his wife. In general, the issues were: Was there an accident? And if there were, did it arise out of and in the course of the worker's employment - and was Mr. Ho the direct employer of the worker?

9. In assessing the credibility of the witnesses, the trial judge found as fact that the worker and Mr. Chan were "basically truthful witnesses". She was aware of certain inconsistencies between their evidence and she was aware that the worker was not an easy witness. She formed a totally different opinion of the employer and was of the view that he was not speaking the truth and that he materially altered the facts to protect himself.

10. Mr. Ho has taken us today in detail through the evidence and has made submissions to us as to why he should have been believed rather than the worker and Mr. Chan. The points he makes were all canvassed at the hearing and were, in many cases, directly referred to by the trial judge in her judgment. He has raised before us two matters of fresh evidence, one in relation to the injury and the other in relation to the contractual point: Who employed the worker?

11. On the first, he wishes now to call the driver of the lorry and the other working coolies. He also suggests that there had been a previous injury and he wishes this Court to investigate the details of that. On the contract point, he wishes to introduce into evidence a cheque which, he says, supports the truthfulness of his own version of the incident.

12. The evidence of the driver and the coolies and of the cheque were readily available at the time of trial, at which Mr. Ho was represented. We are not prepared to re-open that trial now and to permit the calling of this fresh evidence.

13. As to the suggestion that Mr. Chung had had a previous accident for which he received compensation, it is clear that the injury complained of here did occur on 28th February and an employer must take a worker as he finds him. Whether or not there was some previous injury is irrelevant.

14. The trial judge was entitled to come to the conclusions she did upon the evidence before her. They were based on her findings of fact. That being the case It is not for this Court to disturb those findings. The appeal is dismissed.

Representation:

Miss Alice Mok (D.L.A.) for Applicant.

Respondent - In person.