Wong Man-luen v. Hong Kong Wah Tung Stevedore Co
Read the full judgment text of CACV 17/1971 on BabelCite. This Court of Appeal judgment was delivered on 25 October 1971.
1. I have read the judgments about to be handed down by my Brothers. Like Mr. Justice Huggins, I too thought at first that the judgment in the court below should be upheld. But on adjourning after hearing the submissions of Mr. Martin Lee, I had the gravest doubts as to whether we should not order a retrial. It seemed to me that the judge had not expressed his view sufficiently on the credibility of the witnesses and that we should have had specific findings on a number of primary facts. However
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CACV000017/1971 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 17 OF 1971 -----------------
----------------- Coram: Full Court (Blair-Kerr, S.P.J., Huggins and Pickering, JJ.) Date of Judgment: 25 October 1971 ----------------- JUDGMENT ----------------- Blair-Kerr, S.P.J.: 1. I have read the judgments about to be handed down by my Brothers. Like Mr. Justice Huggins, I too thought at first that the judgment in the court below should be upheld. But on adjourning after hearing the submissions of Mr. Martin Lee, I had the gravest doubts as to whether we should not order a retrial. It seemed to me that the judge had not expressed his view sufficiently on the credibility of the witnesses and that we should have had specific findings on a number of primary facts. However, having given the matter much thought, I agree that the appeal should be allowed and that there should be an order for payment of $21,600 as compensation.
Representation: Martin Lee instructed by Messrs Ho & Wong for the Appellant. H.C. Miu instructed by Messrs Peter Mark & Co for the Respondents. JUDGMENT HANDED DOWN IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 17 OF 1971 -----------------
----------------- Coram: Blair-Kerr, S.P.J., Huggins & Pickering, JJ. Date of Judgment: ----------------- JUDGMENT ----------------- Huggins, J.: 2. Although on first reading the judgment in the court below I was inclined to the view that the learned judge had reached the right conclusion, a study of the evidence has now persuaded me that the appeal must be allowed. 3. The judge appeared to base his view that the Appellant was not a "workman" but an independent contractor on three matters:
With respect to the learned judge I think his inference that the Respondents had no control over the manner in which the work was to be performed was not justified: there was no direct evidence one way or the other and the mere fact that the Respondents did not exercise control was inconclusive: see Short v. Henderson(1). There was evidence that on similar occasions in the past someone from the Respondent company had accompanied the Appellant and his fellow workers. The judge made no finding as to this but the evidence does not seem to have been challenged and it points to some measure of supervision over those jobs. The judge expressly said that in the majority of cases it was probable that a man doing the sort of work for which the Appellant was engaged would be a servant, but he appeared to think that the duty of finding and hiring transport and other labour was inconsistent with that status. The vital question both as to the transport and to the other labour was On whose behalf was it to be engaged? The learned judge posed this question as to the transport but he does not seem to have posed the question at all in respect of the labour. Nevertheless he accepted the evidence of the Appellant that he was told to get another two men to help himself and Mr. Ko. If the Appellant were an independent contractor it would have been entirely up to him to decide how many additional men (if any) to employ. The evidence on behalf of the Respondents was equivocal both as to the engagement of the labour and of the lorries but the Appellant said in examination-in-chief that the Respondents hired the lorries and in cross-examination that he himself hired them on behalf of the Respondents. Although this was corroborated by Mr. Ko the judge thought the matter unclear. It was common ground that on some previous occasions when the Respondents had engaged the Appellant to do work of this kind they had provided their own lorries, a fact which was some very slight indication that the relationship had not always been that of independent contract in the past. 4. It was the third matter which the learned judge thought decisive-the mode of payment for the work done. The fact that the remuneration was not fixed before the work was done does not assist us. What is really in issue is whether liability for payment of the other workmen and the owner of the lorries lay with the Respondents or with the Appellant. I have already indicated that on the evidence of both the Appellant and Mr. Ko liability for the cost of hiring the lorries lay with the Respondents, although the learned judge did not indicate expressly whether he accepted that evidence or no. The mere fact that the cost of paying for the lorries was included in the sum paid to the Appellant, so that he may have become the agent of the Respondents for paying the lorry owner, cannot alter the liability itself. But what was it about the mode of remuneration which the judge found decisive? It appears to have been no more than that the single sum was divided among the four workers. It must have been this fact that led the judge impliedly to reject the evidence of Mr. Ko that he "worked for Mr. Leung" (the manager of the Respondent company) and his denial that he and the Appellant were engaged in a joint venture. In what proportions the money was distributed we do not know but, whatever the proportions may have been, that does not in my view necessarily indicate a joint contract between the Respondents on the one hand and the Appellant and his fellow workers on the other: it is equally consistent with their each being the servants of the Respondents at a wage to be negotiated on their behalf by the Appellant. 5. My only doubts in the case have been on the question whether there was sufficient material upon which we could properly dispose of the case or whether we would have to remit it for a new trial. The evidence on the vital matters was very slim and the findings were even slimmer. However, I think such material as we have is more consistent with a contract of service than a contract for services and that there is just enough to enable us to avoid the necessity of a new trial. I agree that the appeal must be allowed and an order made for payment of compensation in the sum of $21,600 as provisionally assessed by the learned judge. Representation: (1) (1946) 115 L.J.P.C. 41. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 17 OF 1971 -----------------
----------------- Coram: Full Court (Blair-Kerr, S.P.J., Huggins & Pickering, JJ.) Date of Judgment: ----------------- JUDGMENT ----------------- Pickering, J.: 6. A feature of the labour situation in Hong Kong, and one which, from a perusal of decided cases, has not been peculiar to Hong Kong over the years, is the existence of 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. The appellant in the present case was, before the event which precluded him from further strenuous physical activity, a member of this class. 7. According to the evidence of a colleague of his, Mr. KO Chu, on the 1st September, 1969, a Mr. Leung, the manager and husband of the proprietress of the respondent firm, gave him a delivery note relating to certain goods in a godown and instructed him that he should, together with the appellant, effect delivery of the goods to specified addresses. Mr. Ko says that he was further instructed that if the two of them could not handle the work they should get two others to assist them. Mr. Leung further asked the witness to hire the necessary vehicles on his behalf. On the following day Mr. Ko says that he located the appellant and related these instructions to him whereupon they executed the commission, hiring two lorries for the purpose and enlisting the aid of two other coolies. 8. In the course of delivery of the goods the appellant was seriously injured. Mr. Ko did not see the accident but, on the appellant's evidence, a case which was being hauled to an upper floor by means of a rope, fell, hitting him on the back of the neck and rendering him unconscious. His condition is now that of partial quadraplegia and his degree of disability has been assessed at 90 per cent. 9. The appellant applied before the District Court for an award of workmen's compensation and his application was dismissed on the ground that he was not a "workman" within the meaning of the Workmen's Compensation Ordinance, Cap. 282, but rather an independent contractor. He now appeals against the dismissal of his application. 10. According to Mr. Ko, he himself had worked in a similar capacity for Mr. Leung on quite a number of occasions, when the arrangement in regard to payment had been that no figure was agreed in advance because remuneration depended upon the amount of work. Upon being paid, the coolies involved in the work would split the total sum between them. Mr. Ko denied in cross-examination that he had, on this occasion, first agreed a fee with Mr. Leung before undertaking the work or that he had employed his own assistants and hired the lorries for his own account, but stated that he obtained two lorries and two additional coolies on behalf of Mr. Leung. He did not agree that the several coolies joined together or collaborated in a joint venture, but reiterated that Mr. Leung employed them and asked them to hire lorries for him; Mr. Ko agreed however, that nobody from the respondent firm supervised their work. 11. The appellant's evidence was to the effect that on the 2nd of September 1969 he received the delivery note from Mr. Ko, who told him that the "boss" (a reference to Mr. Leung) had asked that the appellant should deliver the goods and had said that as there were only two of them, they should seek the assistance of another two men to help them. The appellant also said that he had worked countless times for Mr. Leung in the past and that he was to receive his pay after he had done the job, the system being that the respondent firm would pay a certain amount and "we coolies would share it out". The remuneration was not fixed before they began their work, and its extent depended upon the length and difficulty of the job so that the coolies could not know how much to charge until the work had been completed. The system was that on completion of the work one man would go into the respondent firm's premises and ask for a certain amount; bargaining might ensue but eventually a sum would be paid and the individual coolie, upon leaving the respondent firm's premises, would split the money with the others. The appellant denied the suggestion, put to him in cross-examination, that the decision to seek the assistance of two further coolies was made on his own initiative and repeated that Mr. Leung had said that they would need two more men. He had been asked by the "boss" to look for two lorries and hire them, and this arrangement was not exclusively his own affair but rather had the hiring been effected on behalf of Mr. Leung. 12. Mr. Leung's version of his arrangements with the appellant and Mr. Ko was somewhat different. He said that his firm did not normally employ outsiders because they had their own fokis, but when there was too much work for their own staff the firm contracted it to others, giving the contractor the delivery note and leaving it to him to arrange for men and transportation. At the conclusion of the job the contractors would come for their pay. In the present instance, Mr. Leung said, he had not given the delivery note to Mr. Ko but to the appellant, and he had not indicated to the appellant how many men would be needed for the work involved. It was for the appellant to get himself coolies and transport. 13. It was on the basis of this evidence that the learned District Court Judge dismissed the application for compensation holding that the appellant was not a "workman". 14. The appellant now appeals and his first ground of appeal is that the learned trial judge misdirected himself on a point of law in deciding, on the basis of the evidence of the lack of de facto control by the respondents over the manner of execution of the job by the appellant, as opposed to the lack of a right of control that the appellant was not in the employ of the respondents. The second ground is that the judge misdirected himself in law by holding that the particular manner of remuneration adopted also showed that the applicant was not employed by the respondents. Lastly the appellant claims that the trial judge was wrong in holding against the appellant the fact that it was left to him to find and hire the two lorries that were used as well as the two men who collaborated in the job, such evidence being equally consistent with the appellant's case that he was employed by the respondents. 15. We would say at the outset that we cannot but regard the fact that it was left to the appellant to hire further labour and lorries, as anything but equivocal. It is a factor which, in the absence of clear evidence either way, is just as consistent with the contract "for services" offered by an independent contractor as with that "of service" supplied by an employee. The learned judge, however, appears to have found the circumstance indicative of the status, in the appellant, of an independent contractor for in his judgment he said:-
16. The conjunctive "but" at the beginning of the last sentence quoted, is replete with meaning. 17. For our part, however, we can find no significance in the method of hiring transport and additional labour and if the conclusion at which the learned judge arrived is to be supported, it must derive that support from one or both of the other two matters to which he alluded, namely, the lack of de facto control by the respondent firm of the work of the appellant and his colleagues, and the method of remuneration adopted. 18. In regard to the respondent's lack of control over the operation, Mr. Martin Lee, for the Appellant, urged that the test was not the lack of de facto control but the absence of any right of control and in support of this proposition he quoted Scanlon v. Hartlepool Seatonia Steamship Co., Ltd.(No.2)(1), in which case the steamship company employed a number of dock labourers, without the intervention of a stevedore or other independent contractor, to unload a vessel at a rate of remuneration which depended, not on the days or hours worked by each man, but on the number of tons of grain taken off the vessel at a fixed sum per ton. The aggregate amount due was paid by the company to representatives of the men who divided it equally amongst those who had done the work. One of the men was fatally injured while unloading the vessel and, despite the respondents' contention that they had no control, and in fact, exercised no control or supervision over the men's work so that the deceased was not a "workman" in their employment within the meaning of the Act, it was held that the deceased was a "workman" and compensation was awarded. 19. We would add that just as in the Scanlon case remuneration was on the basis of tonnage lifted, so in the present case remuneration was to be on the basis of the number of cases lifted. 20. In the Scanlon case it was the contention of the respondents that the men acted jointly as a sort of independent contractor and that they could not have it both ways - the advantage of independence while all goes well, and the advantage of dependence when something untoward happens. In that case the court held that upon the true construction of the facts the men were accustomed to do the work, and that when they came on board they proceeded to do it - not as they pleased themselves, but on the lines upon which it had always been done with the approval of the shippers. It was impossible to think that the respondents invited a body of unskilled workmen to come on to the ship to remove the cargo, and that they had no power to, and did not in fact, supervise the work or control the conduct of the men in any respect. 21. It is not without significance that in the present case it was the appellant's evidence that he had worked for Mr. Leung on countless occasions in the past and had even at one stage been employed by him upon a monthly basis. It would accordingly appear that he was familiar with the method of going about the work of delivery from godowns and that actual control by the respondents' firm was broadly unnecessary, though, as we shall see, some slight measure of control does appear to have been exercised over the manner of the appellant's execution of his duties upon this occasion. Likewise the method of remuneration in the Scanlon case was similar to that obtaining in the case before us. In the Scanlon case Johnston, J. said:
22. The case contains reference to two Scottish cases: M'Cready v. Dunlop(2) and Gorman v. Gibson & Co(3). In both those cases the method of employment and remuneration was similar to that obtaining in the Scanlon case and in the present case, and in both cases the applicant or his dependants received compensation. The case of Bobbey v. Crosbie & Co(4), which likewise resulted in an award, is also of some importance on the question of the employment of a gang of workmen, through one of their number, to perform work of a manual nature. This last case, and the case of Chan Shek-kiu v. Hip Shing Printing Press & Another(5), which adopted Bobbey v. Crosbie, were quoted to the learned judge in the court below, but unfortunately his judgment contains no reference to either case and makes no attempt to distinguish the present case from them. 23. Mr. Lee referred further to the case of Short v. Henderson Ltd(6). another case in which a docker employed in a manner similar to Scanlon was held to be a "workman" and in which it was said that the right of control was the principal requirement of a contract of service. An outstanding feature of Short v. Henderson(6) was the finding that although the owner's agents attended regularly and witnessed the progress of discharge from the ship's holds, no occasion had arisen in at least 30 years for any actual control of, or interference with, the method in which the work was done by the dockers, but despite this lack of de facto control, the existence of a right of control rendered the injured man a "workman". 24. We have already said that some slight measure of control does appear to have been exercised over the manner of the appellant's execution of his duties upon the occasion on which he was injured, and we must now explain that remark. In his judgment, the learned judge said that "upon his own evidence the applicant was subject to no control in the operation upon which he was engaged". Search the appellant's evidence in the court below as we will, we are unable to find the basis for this remark. Upon the facts as given by Mr. Ko, Mr. Leung presented him with a delivery note on the 1st September and intimated that on the next day, Mr. Ko and the appellant should effect delivery of the goods covered by the note, saying that if the two of them could not handle the job they should get two thers to assist them. It was further Mr. Ko's evidence that Mr. Leung's version was that he had not given the delivery note to Mr. Ko but to the appellant and that he had not indicated to the appellant how many men would be needed for the work involved, it being for the appellant to get himself coolies and transport. The learned judge appears to have accepted Mr. Ko's version of events because in his judgment he says that
This evidence, as we see it, does indicate a certain measure of control over the operation by Mr. Leung in that he instructed the hiring of vehicles and specified the number of additional coolies to be employed should the work be too much for Mr. Ko and the appellant. It is only necessary to pose the question whether, had four additional coolies been engaged instead of two, the services of all six coolies would have been paid for by Mr. Leung, to emphasize the fact that in specifying the number of coolies to be employed he was exercising a real measure of control over the work and the manner of its operation. An independent contractor would have decided for himself how many additional coolies he needed. 25. The burden of showing that the trial judge was wrong in his decision as to the facts lies, of course, on the appellant, but as was said by Lindley, M.R. in Coghlan v. Cumberland(7).
26. In The Glannibanta(8) Baggallay, J.A. said,
27. In the present instance we are not assisted by the fact that the learned judge made virtually no findings of fact and expressed no view upon the relative credibility of the witnesses but, after considering the evidence as a whole, drew from it the inference that the appellant was an independent contractor. Looking at the evidence in the same way, that infercnce is the diametrically opposite inference to that which we draw from that same evidence. We have already expressed the view that some real measure of control over the manner of performing the work was exercised by Mr. Leung on behalf of the respondent firm. Another aspect of the appellant's position which leads us to the conclusion that he was in fact a "workman" within the meaning of the Ordinance is his financial situation in regard to the work which he had contracted to perform. In Market Investigations Ltd v. Minister of Social Security(9), it was held that control, although 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. 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 ref rence 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. 28. On the facts as they emerged from the evidence we are fully satisfied that the appellant's status was in fact that of a workman and that his application should have succeeded. We are of the opinion that there is nothing to be gained, beyond further delay and increased expense, by sending the case back to the learned judge and, applying the principles applicable to an Appellate Court which we have quoted above, we substitute our finding of fact for that of the learned judge and allow the appeal. The learned judge said that if this court were to take a different view of the respondent's liability, his assessment of compensation on the basis of a 90 per cent permanent loss of earning capacity, was $21,600. That figure has not been disputed before us and we award that sum to the appellant together with costs here and in the court below. Such costs must be taxed in accordance with the Legal Aid Regulations. Representation: M. Lee, Esq. instructed by Messrs. Ho & Wong for Appellant H.C. Miu, Esq. instructed by Messrs. Peter Mark & Co. for Respondent. (1) 2 B.W.C.C. 945 I.R. (2) 1900 2F. 1027 (3) 1910 S.C. 317 (4) 1915 (9) B.W.C.C. 142 (5) 1965 D.C.L.R. 93 (6) 115 L.J.P.C. 41 (7) (1898) 1 CH., 704 (8) (1876) 1 P.D., 287 (9) (1969) 2 W.L.R. p.1 |