DCEC 835/2007 & 74/2008
(consolidated)
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES' COMPENSATION CASE NO. 835 OF 2007 & 74 OF 2008
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BETWEEN
| WONG KI | Applicant |
| and | |
| SHUN TAK ELECTRICAL, MECHANICAL AND AIR CONDITIONING ENGINEERING (HONG KONG) CO. LTD. | 1st Respondent
(Discontinued) |
| CHAN LAI KUN, formerly trading as MOON SHING ENGINEERING CO. | 2nd Respondent |
| BANK OF CHINA GROUP INSURANCE COMPANY LIMITED | 3rd Respondent |
| WONG TUNG SING | 4th Respondent |
(Consolidated pursuant to the Order of His Honour Judge Chow
on 19th June 2008)
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Coram : Her Honour Judge Mimmie Chan in Court
Dates of hearing : 11-13, 16, 26 & 27 March, 2009
Date of handing down Judgment : 16 April, 2009
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J U D G M E N T
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Background
1. On 13 August 2005, Mr. Wong Ki ("Wong") went with 2 colleagues and his brother-in-law, Mr. Wong Tung Sing ("TS"), to office premises at Unit D, 25th floor, Block 1, Tai Ping Industrial Centre in Tai Po ("Premises") to dismantle an air-conditioning unit and to install a new one in its place. TS was at that time the sole proprietor of a business known as Shun Tak. Some time in the morning, Wong was instructed by TS to fill a space or hole in a window with a piece of glass. As Wong was cutting the piece of glass to the correct size in order to fill the hole, the glass shattered, and a piece of glass flew into Wong's left eye. The cornea, sclera, iris and lens of Wong's left eye suffered damage and impaired vision as a result.
2. Wong instituted these proceedings against TS to seek compensation in respect of his injury arising out and in the course of his employment by TS. Alternatively, Wong claims in the Amended Application that he was at the material time the employee of Moon Shing Engineering Co. ("Moon Shing"), named as 2nd Respondent in these proceedings. Further or alternatively, Wong claims that TS was at the material time Moon Shing's subcontractor. The 3rd Respondent joined these proceedings as an interested party, being Moon Shing's insurers.
3. Both TS and Moon Shing deny that Wong was their employee. TS claims that Wong was never engaged by him as an employee. TS' evidence is that whenever Wong worked for TS on TS' projects, he was engaged as an independent contractor on a project by project basis. It is TS' case that when Wong was injured, he was working as an employee of Moon Shing, the contractor which had undertaken the decoration works at the Premises.
4. According to Moon Shing's evidence, although Madam Chan (the sole proprietor of Moon Shing) ("Chan") and Mr. Lau (Madam Chan's husband who was in charge of the daily management of Moon Shing's business) ("Lau") both genuinely thought and believed, at the time of the accident and when they filed Form 2 with the Labour Department, that Wong was Moon Shing's employee, they claim that Wong was only engaged to do the independent job or project of filling the hole in the window with glass, and they had agreed to pay Wong $400 for the job. On this basis, Moon Shing claim by way of defence that Wong was at the material time an independent contractor, and not an employee. Despite the vagueness of paragraph 1 of Moon Shing's Defence, I accept that it can be construed as an averment that Wong was an independent contractor of Moon Shing.
Issues
5. The trial was confined to the issue of liability only. On the question of liability, the parties are not in dispute that Wong had sustained injuries in the manner he claimed.
6. The issues on liability which are in dispute and which arose for determination at trial are: at the time when Wong was cutting glass to fill the hole in the window on the Premises -
(1) was Wong an employee of TS;
(2) was Wong an independent contractor carrying on business on his own account; or
(3) was Wong an employee of Moon Shing ?
Legal principles
7. The parties in this case, as laymen, have expressed confusion and bewilderment over the question of when a worker is, in law, an employee, and when he is an independent contractor. They may get some comfort from the fact that often, lawyers are just as confused, and that the question cannot be easily answered by the courts. I can add very little to and hence respectfully adopt the words of Ribeiro PJ (in Poon Chau Nam v. Yim Siu Cheung (2007) 10 HKCFAR) when describing the often difficult task of the court in deciding whether or not a person is an employee of another.
"In the great majority of cases, deciding whether or not A is B's employee presents little difficulty. Most people take up jobs which are regular and stable, doing the work assigned to them, supervised by the boss and receiving regular wages and other benefits in return. They are obviously employees. However, in certain instances, the answer to the question whether an employer-employee relationship exists is elusive, as recognized by Lord Griffiths in Lee Ting Sang v. Chung Chi Keung v. Another [1990] 1 HKLR 764, at 766G.
This has proved to be a most elusive question and despite a plethora of authorities the courts have not been able to devise a single test that will conclusively point to the distinction [between an employee and an independent contractor] in all cases."
8. The modern approach to the question whether a person is an employee, as adopted in the case of Poon Chau Nam (supra) itself, is to examine all the features of their relationship against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment, bearing in mind the purpose for which the question is asked. The passage of Mummery J's judgment in Hall v. Lorimer [1992] 1 WLR 939 at 944, cited in the judgment of Ribeiro PJ in Poon Chau Nam, provides the most useful guidance in the task which the court undertakes :
"In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person's work activity. This is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.”
9. Many disputes in relation to whether a worker was an employee, or an independent contractor, occur in the context of workers brought in to do different aspects of construction work, or against the backdrop of a construction site. Part of the difficulties in distinguishing between employees and independent contractors in these cases stems from the fact that construction and decoration work inevitably involve different workers with different skills being engaged to do work on the site, the proliferation of small firms in the industry, the reliance on a large pool of mobile labour, and the informality of the arrangements made amongst workers, foremen and contractors.
Factual evidence on relationship
10. 4 witnesses, including Wong himself, gave evidence at the trial. When the evidence was completed, the general impression conveyed to the Court and to Counsel was that none of the witnesses had told the whole truth. Burrell, J once remarked in a case (Cheong Shing Limited v. Yu Kwan HCA No. 12021/2008) : “sifting the truth from falsehoods has been particularly troublesome. Moreover, neither do I think that the entire truth could be found within the entire pool of evidence even if it were possible to miraculously separate truth from lies." The learned judge's remarks are very applicable to the present case.
11. Wong's evidence is that he came to Hong Kong from the Mainland in March 2005, and had since worked for TS in his air-conditioning business. His work mainly involved the cleaning, replacement and maintenance of air-conditioners. Wong was paid a daily wage of $400, and worked an average of 6 days a week. According to Wong, TS made all arrangements for his work, and supplied all materials and tools required for Wong's work. He claims that as he was a new-comer to Hong Kong, he had not thought of undertaking any business on his own account, nor had TS ever mentioned to or discussed with him his undertaking work on his own account as an independent contractor.
12. Wong's case on the accident is simple. On his evidence, he and 2 other workers were brought by TS to the Premises on the day in question, to dismantle a split type air-conditioning unit, and to install a new one in its place. He did not know by whom TS had been given the job. The workers had finished dismantling the indoor unit of the air-conditioner, but were not able to dismantle the outdoor unit as it was raining heavily. At around 11:30 a.m., Wong was instructed by TS to fill a hole measuring 1 foot x 8 inches with a piece of glass. The hole was in a window under an exhaust fan. There were some glass panels on the floor, and Wong's evidence is that TS had pointed to the glass and asked him to use the glass to cover the hole. Wong was also given a cutter by TS in order to cut the glass to the correct size for covering the hole. Wong's evidence is that he did as instructed by TS, as part of his job for TS.
13. According to TS' witness statement filed in these proceedings and which he signed on 26 August 2008, he employed Wong in May 2005 as a temporary worker, at a daily wage of $300. He claimed that he did this because Wong was his brother-in-law, and had not been able to find work on his arrival in Hong Kong, so TS gave him temporary assistance. TS' evidence was that he had introduced or referred Wong to other contractors, in the hope of getting Wong a full time job.
14. In an earlier statement made by TS on 12 December 2007 on behalf of the original 1st Respondent, a limited company of which TS was the sole shareholder and director which was incorporated after the date of the accident, TS had also claimed that since May 2005, Wong had worked for TS from time to time as a casual worker at a daily wage of $400. TS only claimed that Wong was not a technician in air-conditioning works. The action against the original 1st Respondent was discontinued.
15. TS' testimony took a drastic turn in court, when he claimed that he had never employed Wong at all, and that from March 2005 until the day of the accident, Wong had worked for TS as an independent contractor. According to TS' evidence in court, Wong was not paid on the basis of a daily wage, but at an agreed rate on the basis of TS' estimate of the complexity of the job assigned to Wong, the time required to do the job, and the price at which TS himself had undertaken to do the job.
16. According to TS' evidence, Moon Shing had subcontracted to him the job of installing air-conditioners in the Premises ("Subcontract"). The job was completed in June 2005. In August 2005, Lau of Moon Shing telephoned TS and asked him to inspect a split type air-conditioning unit on the Premises which was leaking. TS explains that this unit was not within the scope of the Subcontract. After TS had inspected the air-conditioning unit, he recommended to Lau that the unit should be replaced with a new one, as it could not be repaired. It is not disputed between Moon Shing and TS that a separate contract ("Air-conditioning Contract") was made directly between TS and the client and occupier of the Premises ("Cornwall"), for a new air-conditioning unit to be installed in place of the old air-conditioning unit which was leaking.
17. TS does not dispute that he had brought Wong to the Premises on the day of the accident, to do work under the Air-conditioning Contract. With Wong's help, the indoor unit of the air-conditioning unit was dismantled by about 11 a.m., and TS' evidence is that he and another worker were to install the new air-conditioning unit. It is not disputed between TS and Lau that in the process, Lau telephoned TS, and informed TS that there was water leakage from a window in the Premises, as a hole in the window next to an exhaust fan had not been properly covered. Lau asked TS to purchase some glass to cover the hole ("Glass Job"). What followed Mr. Lau's request is more contentious.
Wong's status under the Air-conditioning Contract
18. One fact which cannot be controverted is that Wong was brought onto the site at the Premises to work under the Air-conditioning Contract before Wong started any work on the glass. I consider it relevant to decide first on the relationship between Wong and TS under the Air-conditioning Contract, before deciding whether there was any change in Wong's capacity when he carried out work under the Glass Job.
19. I reject TS' evidence that Wong was not his employee under the Air-conditioning Contract. He had admitted in his witness statements that Wong had been engaged by him as a casual worker since May 2005, at a daily wage of $300, although on a temporary basis until Wong could find full-time employment. TS' evidence that he had agreed to engage Wong to work for 2 days as an independent contractor on the Air-conditioning Contract is totally unbelievable. On the one hand, TS was keen to minimize the role Wong played in the dismantling and installation of the air-conditioning units under the Air-conditioning Contract, claiming that he lacked experience and technical knowledge and could only work on cleaning and manual tasks, such that he had nothing to do after the indoor air-conditioning unit had been dismantled in the morning of 13 August 2005. On the other hand, TS denies that Wong had been employed to work under the Air-conditioning Contract on the basis of a daily wage of $400 per day, and claims instead that Wong was paid according to TS' estimate of the time Wong would be required for the job and his own price of undertaking the job. On this basis, TS' evidence is that he had agreed to pay Wong $800 to work for 2 days on the Air-conditioning Contract. Contrasted with TS' evidence that he had only agreed to pay $450 to the more experienced and skilled technician who was to take part in the installation and technical work required for the air-conditioning unit, I consider that TS' evidence concerning Wong being an independent contractor who had been engaged to work under the Air-conditioning Contract is totally contrived, as an excuse for not having purchased employees' compensation.
20. Despite his claim in Court that Wong had never been his employee but had been engaged as an independent contractor throughout, TS admitted to his own Counsel that upon Wong's arrival in Hong Kong in March 2005, he had employed Wong to do air-conditioning work at a site in Hollywood Road. It is clear that, as he had admitted in all his statements made before he gave testimony in Court, TS had considered that Wong was his employee.
21. I bear in mind that the parties' own understanding (which may be erroneous) or their description of their relationship is not conclusive on the question of employment, which is a question of mixed fact and law to be decided by the Court. However, there is nothing in the evidence concerning Wong's work activity or the working relationship between Wong and TS to even suggest that Wong was working for TS other than as an employee under the Air-conditioning Contract. He was supplied with the tools and equipment for the Air-conditioning Contract. He did not contribute to the expenses or capital for the undertaking of the Air-conditioning Contract. He worked under TS' instructions and supervision, and assisted TS and the other workers in their work. There is no evidence that he had any share of or right to the profits that can be made under the Air-conditioning Contract. TS' evidence is that he pocketed the profit of $1500 under the Air-conditioning Contract, after deducting the cost of materials, his own labor costs and other costs from the price of $15,000 he had agreed with Cornwall.
Wong's status under the Glass Job
22. Having found that Wong was working as an employee of TS in the morning of the accident, I next consider whether there was any change in his status following Lau's telephone conversation with TS, and at the time of the accident. TS' evidence is that it had changed, and that Wong had become a casual employee of Lau when he worked on the Glass Job. Lau's evidence is that Wong was either an independent contractor of Moon Shing, or of TS, when he was working on the Glass Job, or that Wong remained an employee of TS.
23. TS' evidence is that following Lau's request on the telephone that he should fill the hole in the window with glass, he had told Lau on the telephone that the Glass Job was not within the scope of the Subcontract, which had been completed, and that he was not free to do the Glass Job as he was busy working under the Air-conditioning Contract. TS claims that he suggested to Lau in the course of their telephone conversation that Lau should employ his relative, Wong, at a daily wage of $400 for the Glass Job, as Wong had experience in cutting glass on the Mainland.
24. Further, TS' evidence is that whereas Wong had been working for him as an independent contractor, he thought that the Glass Job was too small for Lau to engage Wong as an independent contractor, and recommended instead that Lau should engage Wong as a casual worker, in accordance with what TS claims to be the market practice. According to TS, Lau agreed to this recommendation. When asked how much time he expected Wong to spend on the Glass Job, TS' evidence is that it would take one day.
25. In my Judgment, TS' distinction does not make sense, and his attempt to distinguish his own relationship with Wong with the working relationship he had proposed to Lau is a fabrication to hide the actual fact of his employment of Wong as a casual worker.
26. It is TS' case that after speaking to Lau, TS then informed Wong of the proposal he had made to Lau to employ Wong to do the Glass Job for $400, and Wong had accepted the Glass Job without hesitation. According to TS, he then telephoned Lau to confirm to Lau that Wong had consented to Lau's employment.
27. Turning to Lau's version of his telephone conversation with TS, his evidence is that on the day of the accident, Ah Yiu of Cornwall had called Lau a number of times in the morning and had complained to Lau about a hole or empty space near an exhaust fan on the Premises which had not been properly covered. Moon Shing had originally undertaken from Cornwall the interior decoration works at the Premises, and had subcontracted the air-conditioning works to TS. The Air-conditioning Contract was made directly between Cornwall and TS after the completion of the Subcontract. On learning that TS was at the Premises installing an air-conditioning unit for Cornwall under the Air-conditioning Contract, Lau telephoned TS and asked him to cover the hole referred to by Ah Yiu.
28. Lau has given slightly different accounts of his telephone discussion with TS on the day of the accident. This, by itself, may be understandable, when one bears in mind the fact that the conversation or conversations had taken place over 3 years ago. The gist of Lau's evidence is that in answer to his request that TS should cover the hole with glass, TS had said that there was no problem, but he could not attend to everything as he had to install the air-conditioning unit, and that he would ask someone to take care of the Glass Job. Lau does not dispute that in the course of his discussion with TS, Lau had agreed to pay $400 for the Glass Job.
29. The differences in Lau's accounts of his discussion with TS turn on his testimony that there were in fact 2 separate telephone calls, the details given in each call, and when the details were given. Lau's final version in Court appears to be that in the first telephone call, TS had not mentioned that he would ask his relative to do the Glass Job, and that the wages would be $400. According to Lau, TS only mentioned that he would find someone to take care of the Glass Job. Lau's evidence is that he in fact placed a second call to TS, to ask “if it could be done (得唔得架)", to which TS responded by explaining that he had asked his relative to do the Glass Job, because he had experience in the Mainland. Lau then asked how much it would cost, and TS told Lau that it would be $400, which Lau agreed to pay.
30. On Wong's part, he denies that TS had ever mentioned to him that he would be engaged by Lau, or any one other than TS, to do the Glass Job for $400. Wong denies knowledge of any telephone conversation between TS and Lau. On Wong's case, he was simply instructed by TS to use the glass seen on the Premises to cover the hole in the window, and to cut the glass to the right size with the cutter supplied by Lau.
31. On Wong's evidence, because no one had ever mentioned to him before the accident that he would be employed by Lau or Moon Shing or anyone else other than TS, or that he would be paid $400 for the Glass Job, he refused to sign a document which was later presented to him by Chan and TS after the accident, which contained such an acknowledgment ("Acknowledgment"). The Acknowledgment was prepared by Chan, after consulting Lau and TS on the circumstances of the accident. It contained statements that TS had recommended Wong to Moon Shing for employment, and that Moon Shing had agreed to engage Wong at a daily wage of $400.
32. Having heard the evidence from Wong, TS and Lau, I find TS' contention that he had recommended to Lau that Lau should employ Wong as a casual worker to be unbelievable. In particular, I find it unreal that TS would, as he claims, speak to Wong after his telephone conversation with Lau, to inform Wong that Lau would like to employ Wong to work on the Glass Job, and to inquire from Wong if he would like to work for Lau as a casual employee. It smacks of a lawyer's account of the events, after a clinical analysis of the essential elements required to achieve the desired legal consequences.
33. As TS' own evidence goes, he was too busy working on the air-conditioning units to do the Glass Job personally. Wong had been brought onto the site to work for and to assist TS. TS had agreed to pay Wong for his work under the Air-conditioning Contract. It is inconceivable that TS, the curt and brief-speaking boss, would take the time and trouble to explain, to his inexperienced worker and relative, either a transfer of employment, or in essence the distinction between working under casual employment with Lau and continuing to work for TS under the Air-conditioning Contract, and further to seek Wong's consent to such change of arrangement or working relationship. If I may borrow a phrase from the Judgment of Stone, J in Khan Amar v. Cheung Ying Construction Engineering Ltd. & Ors. CACV 153/2006, 5 June 2007, "construction sites in general are not havens of grace and politesse", and the more realistic and likely probability is that, having agreed with Lau that he would get someone to take care of the Glass Job, TS simply instructed his worker Wong, whom TS emphasized to be inexperienced and unable to assist in the installation and technical work required for the air-conditioning units, to deal with what was considered to be the simple task of filling the hole in the window. This was to discharge TS' obligation under his promise to Lau to take care of the work involved in the Glass Job.
34. It is equally improbable if not inconceivable that, having agreed (as he claims) to pay $800 to Wong for the Air-conditioning Contract, TS would agree to release Wong from the Air-conditioning Contract, and to permit Wong to undertake the Glass Job. When he was cross-examined on this, TS' answer was that there was no further work that Wong could do under the Air-conditioning Contract, and as Wong was his relative, TS would like him to earn more money. Nevertheless, TS had stressed in his own evidence that the price of $800 which he had agreed to pay to Wong under the Air-conditioning Contract was payable irrespective of the number of days Wong actually worked on the Air-conditioning Contract, as this forms the basis of his assertion that Wong was engaged as an independent contractor. Moreover, the evidence from both TS and Wong is that the work under the Air-conditioning Contract had not been completed by 11:30 a.m.. The outdoor air-conditioning unit had yet to be dismantled and the installation of both the indoor and outdoor units had not been done. According to Wong, he was to go back to his work on the air-conditioning units after he had completed the Glass Job. Against such evidence, it is not believable that TS would have agreed to release Wong from the Air-conditioning Contract, and to agree to Wong working for Lau, either as an independent contractor, or as Lau's casual employee.
35. Lau's evidence is that he never asked TS for the name of the worker who would be doing the Glass Job. His evidence is that so long as TS could get someone to do the Glass Job, it would be sufficient. If the work was done, he would pay $400 to TS for the worker. If it was not done well, he would not pay. According to Lau, the Glass Job was a one-off transaction. He agreed to the sum of $400, because he accepted that it was fair, and he did not care if TS should pay $100, $400, or $500 to the worker who carried out the job. According to Lau's evidence, the sum of $400 would include the cost of purchasing the glass to cover the hole, and any other equipment required. In my Judgment, such evidence contradicts a relationship of employment.
36. According to Lau, in his first telephone conversation with TS, TS had simply informed him that he would get someone to take care of the Glass Job. Lau's evidence is that he called TS after their first telephone conversation, to ask "if it was alright (得唔得架)". Lau stated that by this, he meant that he had called to ask if TS had managed to secure someone to take care of the Glass Job, and if that person had agreed to do the Glass Job. However, Lau also stated in cross-examination that he wanted to make sure that the worker procured by TS to do the Glass Job was capable, as there had been instances in the past when TS had referred jobs to workers who were not capable. I consider that Lau's evidence in this latter respect has a greater ring of truth. If he had asked TS whether "it was alright (得唔得架)", it is more probable that he had wanted to inquire whether the worker doing the Glass Job was competent, rather than to inquire if the worker recommended by TS had consented to do the Glass Job.
37. On the totality of Lau's evidence, I consider that he had intended to engage TS as an independent contractor to either carry out the Glass Job personally for $400, or to procure his worker to carry out the Glass Job on TS' behalf for $400. This is supported by Lau's evidence that whenever TS worked for Lau on the projects Moon Shing had subcontracted to TS in the past, TS would render accounts to Lau and include the charges of the workers he procured in the accounts.
38. Even if it can be construed that Lau had intended to instruct TS to procure a competent worker to undertake the Glass Job as an independent contractor for $400, I have rejected TS' evidence that he had informed Wong of any proposal which he may have made to Lau to employ Wong either as a casual employee, or an independent contractor. Accordingly, there is no tripartite agreement or consensus to the transfer of Wong's employment from TS to Lau, either to work as an employee or an independent contractor. The judgment in Mohammad Latif v. Wong Chi Construction Engineering Company Ltd. DCEC 656/2001, 7 August 2003 and the cases referred to therein including Bolwell v. Redcliffe Homes Ltd. [1999] IRLR 485 are clear that consent of the employee is required.
39. I also accept the submissions made by Mr. Sakhrani, Counsel for the 3rd Respondent, the insurers, that for policy reasons, it would require cogent evidence and only in the most unusual case for the Court to recognize and give effect to arrangements made by an employer with third parties to transfer the employer's liabilities and obligations, whether under its employment contract with its employee, or under the provisions of the Employees Compensation Ordinance.
40. On the facts and evidence in this case, I find that at the time when Wong worked on the Glass Job, he remained an employee of TS. It is also my finding that at the relevant time, Moon Shing had, as Cornwall's principal contractor in respect of the Glass Job which Lau had agreed to do at Ah Yiu's request (and irrespective of his reservations as to whether it was within the scope of Moon Shing's original contract with Cornwall), subcontracted the Glass Job to TS.
Form 2 and other evidence
41. The only evidence which points to Wong being an employee of anyone other than TS is Form 2, the Notice of Accident filed on 24 August 2005. On behalf of Moon Shing, Lau and Chan had completed Form 2, in which it is stated that Wong was Moon Shing's employee engaged to carry out “miscellaneous duties”. The evidence of Lau and Chan is that at the time of the accident and their completion of Form 2, they believed that Wong had been asked by Moon Shing to do the Glass Job and was accordingly Moon Shing's employee. They claim that as Wong was injured whilst he was working on the Glass Job, Moon Shing should be responsible.
42. The authorities are clear that it is for the court and not the parties to evaluate the facts and determine the legal relationship between them, such that the parties' own description of their relationship is not determinative (Chan Kwok Kin v. Kwok Kwan Hing [1991] HKLR 631).
43. Moreover, it is clear from the evidence in this case that Lau who had completed Form 2 totally disregarded the truth of the facts he had inserted in the document. It is not credible that he had simply not asked nor obtained from TS or Wong the facts of the accident, but even if his assertion in this respect was true, such that the facts he had stated in Form 2 were not deliberate falsehoods, Lau has admitted in his evidence that many of the statements he had made in Form 2 were pure guesses. On Lau's evidence, Form 2 is totally unreliable, and I attach no weight to it.
44. Counsel for the 3rd Respondent had referred to statements made by the parties to the loss adjusters appointed by the insurers. I consider that the witness statements filed by the parties in these proceedings are sufficient to deal with the issues before me.
45. Counsel for TS relies on the fact that immediately after the accident, TS had telephoned Lau to inform Lau that Wong had been injured. It was argued that this establishes TS' genuine belief that Moon Shing was the employer of Wong, and that Lau should be notified of the accident in view of Moon Shing's responsibility for the possible consequences arising out of the accident. I consider that TS' notification to Lau is equally consistent with Moon Shing being the principal contractor which had contracted the Glass Job to TS, since Moon Shing as principal contractor would also have liabilities and responsibilities as a result of Wong having been injured in the course of his work on the Glass Job. In the light of all the evidence, including the evidence of the working relationship between Wong, TS and Moon Shing; the telephone discussions between Lau and TS in the morning of 13 August 2005 before the accident; and TS' payments to Wong during the period of his sick leave, I do not regard the "contemporaneous" events of the telephone conversations between Lau and TS on 13 August 2005 after the accident (as Counsel described the telephone calls), to have much weight in the balancing exercise.
Conclusion
46. In relation to the issues identified in paragraph 6 above, I find that at the time when Wong was cutting glass to fill the hole in the window on the Premises, he was an employee of TS.
47. I will make an order nisi that Wong is to be paid the costs of the action, to be taxed if not agreed, with certificate for Counsel. Wong's claim against TS is successful, and there is no reason why TS should not bear Wong's costs. Moon Shing filed Form 2, and claims to be the employer of Wong until the filing of the Defence. The cavalier attitude adopted by Lau and Chan in their preparation of Form 2, and the evidence which suggests that the filing of Form 2 and the preparation of the Acknowledgment may have been deliberate attempts made by TS, Lau and Chan to seek compensation from the insurers of Moon Shing, are factors which I take into consideration in making the order of costs against Moon Shing. Wong's own costs are to be taxed in accordance with the Legal Aid Regulations.
Postscript
48. The evidence in this case reveals a shockingly cavalier attitude which was adopted by Lau when he completed Form 2. Over 50% of the details of the accident were made up by Lau, on his own admission. It is high time that employers recognize that they have a duty under s.15 of the Employees' Compensation Ordinance not only to give notice of an accident to the Commissioner of Labour within a specified time, but also to give true and accurate information. It is an offence for any employer to fail to give such notice without reasonable excuse, or to give any false or misleading information. The Courts will not hesitate in an appropriate case to refer the matter to the Department of Justice to take necessary action for prosecution.
| | (Mimmie Chan)
District Judge |
Mr. Raymond Lau instructed by Messrs. Lily Fenn & Partners (assigned by D.L.A.) for the Applicant
Mr. David Hui instructed by Messrs. S.H. Chan & Co. for the 2nd Respondent
Mr. Ashok Sakhrani instructed by Messrs. Lau, Chan & Ko for the 3rd Respondent
Mr. K.C. Chan instructed by Messrs. Gary Lau & Partners for the 4th Respondent