LAW YIU CHAN AND ANOTHER v. WONG KWOK WAI t/a SUPPER REPAIRING CO

DCEC804 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEE COMPENSATION NO. 804 OF 2007

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Supplementary Judgment

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1. In this matter judgment was delivered on the 10th April 2008 and I refer to same.  At the time of the original hearing quantum was stated by the parties to be “agreed”.   However since the date of the judgment the Applicants now ask for Supplementary Orders, being for: (1) payment of funeral expenses under s.6(5) and Schedule 6 of Cap.282, (2) interest, and (3) certificate for counsel.

2. The Respondent is now unrepresented but defaulted in this hearing.  Counsel for the Applicants informs me that when the Summons was served, the Respondent, no longer represented by solicitors, refused to accept service.  I am not surprised, therefore, that the Respondent defaulted today.

3. In respect of reimbursement of funeral expenses, s.6(5) makes it mandatory for the employer to pay the same to the Applicants, but the maximum is stated in Schedule 6 on the right column corresponding to s.6(5), which is $35,000.  This amount is now asked for by the Applicants who had paid more than twice over.  In the circumstances the only proper course for me to take is to order payment by the Respondent to the Applicants in the sum of $35,000.  How this amount is to be distributed among the Applicants themselves, if the question should arise, has not been stated to this Court, and I make no specific order of apportionment.  As the Applicants are members of the same family it is not envisaged that a dispute will ensue, but in the unlikely event that a dispute should arise, I give leave to the Applicants to return to this Court to seek an appropriate Order in due course should it be necessary.

4. In respect of payment of interest, s.21(3) empowers this Court to make such an order on an entirely discretionary basis, such interest to cover from the date of the accident to the date of judgment.  Counsel for the Applicants says that I have the same powers regarding costs in Employees Compensation matters as in any other civil action in the District Court, but it seems to me that the “wider powers” in s.21(1) are overridden by the wording in s.21(3), so that in today’s case an award of costs is limited to the period between the accident and the date of (the original) judgment.  In any event, having regard to the whole of the circumstances, I am of the view that it is only proper for me to order interest to be paid by the Respondent to the Applicants on the principal of $588,000 + $35,000 = $623,000 at 6% per annum from the 1st July 2005 being the date of the accident, to the 10th April 2008 being the date of my original judgment.

5. As to a Certificate for Counsel, I recognise that the matter had proceeded to trial, with cross-examination required, but I am not of the view that the facts were so complex that they went beyond the scope of a Solicitor so that Counsel must be instructed, although in many situations instructing solicitors may well decide that briefing Counsel is in the best interest of their clients.  In all the circumstances of this case the application for a Certificate for Counsel is declined.

6. The final matter is in respect of the costs of today’s hearing.  The facts revealed that the Applicants’ solicitors had tried to arrive at a consensus with the Respondent in order to obviate a formal hearing, but a telephone call and a letter sent to the Respondent’s solicitors on the 11th April 2008 had met with a negative response and no reasons were given as to why.  Accordingly the Applicants’ solicitors needed to issue a Summons (for today’s hearing) on the 30th April 2008.  This Summons was served to the Respondent’s solicitors on the 5th May 2008, who were still acting for the Respondent.  The Applicants’ solicitors followed the matter up with a letter to the Respondent’s solicitors again seeking consent, but to this there was no reply.  Finally, on the 30th May 2008 the Respondent’s solicitors sent a notice to the Applicants’ solicitors stating that they no longer represented the Respondent.  As stated earlier in this judgment, when the Summons for today was served to the Respondent himself, he refused to accept service. 

7. In the above circumstances today’s Application and hearing in court must be held.  The Applicants’ solicitors have obviously done all they could reasonably have done in order to avoid incurring today’s hearing and costs therewith associated.  Accordingly I award costs of today’s hearing to be paid by the Respondent to the Applicants, to be taxed if not agreed.

DCEC   804   / 2007

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JUDGMENT

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Background

1. On the 1st July 2005 at about 6pm at the Respondent’s car repairs premises, as the Deceased Mr LAW Wing-sang (“DP”), then aged 29, was moving a gantry (龍門架) in the process of clearing the premises in preparation for government re-possession of the land, the gantry fell onto DP and crushed his right leg, from which injuries DP died in hospital shortly after 8pm. 

2. The Applicants claim against the Respondent under s.5 and s.6 of the Employees Compensation Ordinance Cap.282.   

3. The issue is liability, the Respondent Mr Wong saying DP was not his employee.

Applicant’s younger sister Miss Law’s evidence

4. DP’s younger sister Miss Law adopted her witness statement dated 19th February 2008 as her testimony in chief.  She had an understanding of DP’s employment status from frequent conversations with him, although she could not, of course, be certain about the employment conditions.  In any event she was not conversant with motor mechanics or motor repairs.

Respondent Mr Wong’s evidence

5. The Respondent adopted his witness statement dated 22nd February 2008 as testimony in chief.  In summary, he says DP was at all times an independent contractor who provided himself with all the equipment.  He says that at the time of the accident he himself was taking shelter from the rain while sitting inside his client’s crane-truck which was parked by the side of the gantry.  He says he had not instructed anybody to move the gantry, nor did he see how the accident happened.  He heard a cry of “Help!” and the gantry was already on top of DP’s leg.  He says he did not understand why the moving of the gantry was undertaken.

6. He agrees that DP (having left his employ a fews back) had returned to his yard to work several months before the accident, but he says the return to work was on DP’s own initiative.  He says it was a time when SARS had been, which had made his business difficult to survive, and so he (the Respondent) and his 2 previous partners had decided to become independent operators albeit still working under the old trade name of “Supper Repairing Company (獎門人汽車維修公司).  He says the 3 of them shared all the expenses, but he cannot now produce any invoices or receipts because “all the receipts were stored inside the containers and they had disappeared on his recovery from the 6 surgical operations”.

Assessment of evidence

7. I find the Respondent’s testimony unreliable and unsatisfactory.  He made bare oral assertions without proof.  He asserted that DP was a mere independent contractor like his other alleged unequal partners for example Mr Lo, who had to share expenses.  But the Respondent has no invoices or receipts to prove his assertions.  If DP had been an independent boss as the Respondent asserts, one would have expected to find documents to support the story, for example how much money in which month DP had paid what proportion of the Respondent’s what expenses including rent of the land.  Indeed people like DP, Mr Lo, and the Respondent himself must have been keen to save all proof of expenses for tax deduction purposes, unless the Respondent was into tax evasion which then makes him a dishonest witness.  Furthermore, when other workers refer to him as “boss” he cannot not explain why – it was only subsequently at re-examination that he now thought of a reason i.e. “because back in 2002 I was their boss”.  And further, one only finds one business registration certificate, namely that of the Respondent’s, nothing by or of the other alleged unequal partners, not to mention there was nothing by or of DP himself.

8. On the contrary, DP’s co-workers such as Mr Lo (more on his evidence below) pointed to DP having been the Respondent’s employee.  It is true that Mr Lo had somewhat contradicted himself in a 2nd statement.  I have warned myself that because of this I needed to be very careful when viewing his answers given to the authorities.  However, where there are apparent contradictions I should accept the facts inside the 1st statement and not the 2nd statement, because the 1st statement was made only the day after the accident, while the 2nd statement was made “on his own initiative” and more than 2 months after he had made his 1st statement.  While we do not know precisely why there were differences, it is at least possible that after he had made his 1st statement he had held discussions with someone, which had led him to go to the authorities to make changes. The 1st statement was a spontaneous recollection of events and so much more likely to be true.  At least at that time there was no motive, or sufficient opportunity, for Mr Lo to fabricate lies.  In addition, as will be seen below, Mr Lo’s points in the 1st statement are supported by evidence elsewhere, so that they are not merely bare assertions.

Was DP an employee?

9. I have examined the indicators when determining whether DP was an employee of the Respondent.  There is an abundance of caselaw regarding the factors or criteria which will assist a trial court in this determination, for example as set out in summary form in Chitty on Contracts (27th edition) Vol.II at page 703, and POON Chau-nam  v  YIM Siu-cheung [2007] 1 HKLRD 951.  I will summarise the evidence below, but should first say that the parties have no dispute that hearsay evidence in this fatal case is admissible, and that there is no dispute about the work status as between DP and co-worker Mr Lo vis-à-vis the Respondent (as Mr Lo himself also said in his statement).

10. 10.1  Vocative:  While this is not a conclusive factor, nor is there any one conclusive factor in this trial, how people refer to each other can well serve to be a criterion:

    DP has never stated he was his own boss, as his younger sister testifies, who was close to him and had frequently spoken with him about his work.  By contrast, workers like Mr Lo called and referred to the Respondent as “boss”: e.g. Bundle page 30, page 33 at QA.14, and this the Respondent cannot explain why, and Mr Lo did not refer to the Respondent as “my partner”.  I do not accept the Respondent’s subsequent explanation that Mr Lo referred to him as “boss” was because some years back he was his boss, because the timing of Mr Lo’s interview was July 2005, not several years back.

   10.2   The tools of trade were supplied by the Respondent:  Mr Lo’s statement at Bundle p.31 QA.5 and p.41 QA.2, and Mr Lai’s statement p.44 QA.39 and p.58 QA.21.

   10.3   The hours of work were relatively fixed, not flexible as a self-employed person would decide for himself, especially when business was not brisk: Mr Lo at p.30 QA.3,  p.33 QA.17,  p.42 QA.30, p.160 line 2, Miss Law’s testimony regarding DP’s overtime work, all of which are clearly distinct from independent contractor Mr Lai’s situation: p.55 QA.6.

   10.4  Instructions and supervision had come from the Respondent: Mr Lo p.32 QA.10,  p.40 QA.20 to p.41 QA.25 especially QA.23 and 25,  p.43 QA.34 and 35,  p.44 QA.38, p.159 §3, 6 & 7.

   10.5  Income was by way of payment of wages, not independently:  Mr Lo p.30 QA.1 & 2, Miss Law testifying DP’s referral to his income as “wages (人工)” at p.17 §8, and despite subsequently labelling himself in his 2nd statement as “self-employed” Mr Lo described how an equal share of the income from work would go to the Respondent even where the Respondent was not involved in doing the work, which runs opposite to the assertion made by the Respondent when he said he was an independent operator.

11. From the whole of the evidence and for reasons of credibility, I find that DP was an employee of the Respondent as defined in s.2 of the Ordinance. 

Was moving the gantry undertaken “in the course of employment”?

12. The Ordinance in s.5(4) deems and presumes that the accident had arisen out of the course of employment, and there is nothing other than a bare oral denial by the Respondent in this regard.  I do not accept the Respondent’s testimony that he was inside the crane-truck was for the sole purpose of obtaining shelter from the rain, because the large iron container was also there, and it was large enough for workers to change clothes inside, yet the Respondent did not hide inside this container but chose the narrow space of a driver’s cabin, in addition to the fact that, if he had really been on an equal footing with the other workers, he was taking shelter when other workers were not, he was not working when the others were.  The fact that he was inside the driver’s cabin also points to the fact that he was ready to drive the crane-truck away once the gantry was moved out of the crane-truck’s way.

But there is more than the statutory deeming in aid of the Applicants in this trial, because moving the gantry had a purpose and a logical reason for it to be done, namely for the Respondent to be able to drive the crane-truck away once the gantry was moved out of its way, and this was part of the overall yard-clearance exercise: see Bundle p.53 last line to p.54 line 4. 

13. From the whole of the evidence and for reasons of credibility, I find that the moving of the gantry was performed in the course of employment, and the accident had arisen out of the course of employment. 

14. As DP was Respondent’s employee and he (DP) was carrying out work in the course of his employment when the accident happened, I find the Respondent liable to pay compensation under the Ordinance.

Award

15. Quantum, and the manner of payment, have been agreed by the parties in the event that liability should be established.  Accordingly I make the following award:

16. The Respondent is to pay the Applicants’ costs to be taxed if not agreed.