CHONG YAU KWAN v. LAU KAI MAN AND ANOTHER

DCEC1157/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1157 OF 2002

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J U D G M E N T

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The Issue

1. The only issue in this trial is whether the Applicant was the employee of the subcontractor.

The Applicant's Evidence

2. The Applicant is 40 years of age. He met Mr. Lau Kai Man (R1) in August 2001 in his native place. Lau told him if he needed a job he could phone Lau.

3. He called Lau in Hong Kong. At the end of September or early October 2001 Lau asked if he knew how to do decoration work in respect of wooden doors and metal grills.

4. He met Lau in Kwai Shing West Estate. Lau led him into the site. He was required to install 3 doors in a unit, i.e. the front grill, main door and door frame and toilet door. Lau left him to do the job alone. He was given $300 for each unit.

5. Lau gave him instructions as to which unit he had to work on. Lau wrote down the units and floor which he had to work on on a piece of paper.

6. Occasionally Lau would ask him to assist Lau to do the railing. The railings were at the roof area inside the premises next to the bedroom. He would be given $40 to $60 per hour depending on the complexity of the work. He had worked for 27 to 28 days and was paid about $10,000 in cash.

7. He needed not bring any tools. All tools and materials were provided by Lau and placed in a push cart in the unit he had to work on. On occasions when he ran out of materials he was told to fetch the materials at the office of R2 on the ground floor of Block 1 Kwai Shing West Estate. He gave a detailed description as to where in Block 1 and what was inside that room. Inside the room there were about 2-3 men inside. He was asked as to the purpose of his visit. When he told the man that he had instructions from Lau to fetch materials he was allowed to take whatever materials he required. He was not required to sign any receipt nor was he required to show his identity.

8. On 9 November 2001 he assisted Lau to do the railing in Block 4 unit 310. At about 8 p.m. he polished the railing with electric polisher. Some particles or metal dust got into his eyes. He felt uncomfortable and had to stop work. He told Lau and then went home.

9. The next day he rang Lau and told Lau he could not work as his eyes were still uncomfortable. He went to United Christian Hospital Accidental and Emergency Department for treatment. He was given some eye drops and then was transferred to Prince of Wales Hospital where he stayed for 1 month. He had follow up treatments after discharged from hospital.

10. He was not provided with goggles, he only wore a pair of sunglasses.

11. He said he got electricity inside the unit.

Evidence from the 2nd Respondent

12. Mr. Tang Wai Ming the project manager of R2 was responsible for the overall management of the project to carry out the renovation work of Kwai Shing West Estate. R2 sub-contracted the work to Elite Maintenance Engineering Co. who further sub-contracted the work to Lai Sai Wing.

13. He was required to input the personal information of all workers on site in the computer database. R2 had to issue work permits and provide uniforms to all workers. The workers were required to wear them during work. He would conduct regular site visits in 4 public housing estates (including Kwai Shing West Estate) to check whether workers wore uniforms and work permits. R2 had its office in Tai Wor Hau Estate. The site office of Kwai Shing West Estate was on the ground floor of Block 1. That was allocated to Elite. R2 had its site staff stationed in that site office.

14. Every sub-contractor was required to bring hand tools. They may borrow larger equipments from site office and only R2's foreman and Elite's designated representatives could obtain equipments and take materials from site office and they were required to sign a form for record purposes.

15. Apart from R2 there were at least 3 to 4 other contractors working on that site.

16. R2 was required to carry out investigations in respect of the injury of the Applicant. He said R2 was responsible for refurbishment of the inside of Unit 310 but not outside the corridor.

17. He also checked the computer database neither the Applicant nor Lau was engaged by R2 or its sub-contractor.

18. He said there was no supply of electricity in vacant flats. Any sub-contractor who wanted to use electricity had to notify R2 and R2 would notify the Housing Authority to obtain electricity.

19. All workers had to have licence by the Industrial Training Authority. The working hours were from 9 a.m. to 5.30 or 6 p.m. and the Housing Authority had to give permission to carry on work after 6 p.m. and foreman would have to lock the doors at 5.30 p.m.

20. Chan Chi Ho the safety officer of R2 was responsible for the safety supervision and management of the contract. He had to evaluate the risk involved in a particular task if necessary and submit monthly safety report and carry out investigations on any possible accident which came to the knowledge of R2.

21. He had checked the workers record in computer database and found that the Applicant was not a worker engaged by R2 or its sub-contractors. He also checked the monthly safety reports and made enquiries from site agents foremen and sub-contractors and none had heard of the Applicant's name nor was anyone aware of the accident the Applicant alleged.

22. He said R2 had not received instructions from the Housing Authorities to install corridor railings.

23. His duty involved giving advice on safety and inspect to see if workers wore uniform and card. For burglar rails at least 3 workers would be required. Metal workers would do the drill, fix screws and welding while the miscellaneous workers would adjust the grill. The burglary rails came in 2 pieces and were pre-fabricated. He was present when the segments were being hoisted.

24. Lai Sai Wing said he was a maintenance works sub-contractor. He was also the foreman. He had sub-sub-contracted from Elite at the price of $300 to $8,500 per flat. He employed about 15 workers to work for him and confirmed that he had not employed the Applicant nor R1.

25. Before his employees were allowed to work they were required to submit personal informations and photos for record purposes. Every worker had to put on the work permit during work. He noted that R2's representative had carried out regular site walks to check whether workers wore uniform and work permits.

26. He kept keys to different units in his desk. He would open the doors for the workers to do the work. There were padlocks to the doors. In the evening the workers would keep the keys to the padlock and he would keep the keys to the door.

Evaluation of evidence

27. I do not find Tang Wai Ming to be a credible witness. He said that the Housing Authority was aware of the sub-contract to Elite but the agreement clearly stated that sub-contract was prohibited. He agreed that no notice was given to Housing Authority in respect of the sub-contract.

28. He said that R2 would be given a copy of the wage record by the sub-contractor or Lai. This is unlikely because the main contractor would only be concerned with the quality of work and the progress. R2 had no interest in knowing how much Lai paid his workers. In fact in cross-examination he agreed that Elite would quote a sum and R2 would give Elite that sum to complete. If Elite completed the job R2 would pay. R2 was not concerned with the number of workers.

29. He said he can check from web-site if Lai had been black-listed but he only checked with people from the same trade.

30. He said Lai was his foreman but from the wage record Lai was only an odd job worker. It is highly unlikely that an odd job worker could be a foreman to oversee various works which he had no experience. It is unlikely that an odd job worker could have made a sketch of the burglar rail and took it to place the order.

31. Besides the above he agreed that there were at least 3 to 4 other contractors working at the site. There was no evidence as to whether workers of other contractors needed to put on uniform and work permit.

32. The impression I got was that there was a lot of confusion and the control at the site was rather messy.

33. Equally Lai Sai Wing was not a credible witness. He said that the Housing Authority had record of his status in Chuk Yuen was not true.

34. It is highly unlikely that an odd job worker was the foreman and the sub-sub-contractor.

35. The use of rope to lift the burglar rail as described by Lai was not safe as it might bang on the external walls and chip the edge of the balcony.

36. Lai had every reason not to make known to Elite that he had sub-sub-contracted his work for fear that Elite might terminate his contract. He admitted that he would have wanted to sub-contract the work if he could but Elite did not allow that.

37. Lai in his witness statement said "I noted that RC's representative (R2) had carried out regular site walks to check whether the workers have worn uniforms and work permits" but Chan Chi Ho said Lai accompanied him to inspect because he was the foreman.

38. On the other hand I find the Applicant a more reliable witness. He is simple and not calculating. He had his own way of expressing himself which was not easily understood by others. Hence there was the mistake when instructions were given which necessitated amendments in the pleading.

39. I find on balance that he had been working on the site. He was able to give a detail description of the site office where there was no signboard or plate. He could describe the uniform worn by R2's workers. He could tell that unit 310 required the installation of the burglar grill. He had produced the written instructions as to which units he was required to work and a photocopy of the master key to the padlocks and a record of the units he worked on.

40. He told the doctor at United Christian Hospital that he sustained left eye injury with foreign body getting into it while grinding metal during work. This is consistent with the description of how he was injured.

41. In the premises I find that the Applicant was injured in the course of his employment. As he worked in unit 310 which was contracted to R2 and R2 had sub-contracted the work to Lai it is likely on balance that Lai had further sub-sub-contracted to R1. I find R2 being the main contractor is liable to the Applicant.

Quantum

42. The Plaintiff was born on 1 February 1962, he was 39 years of age at the time of the accident. The Assessment Board assessed the loss of earning capacity at 40% and was given sick leave from 11 November 2001 to 2 January 2002 a total of 53 days. At the time of the accident he earned $10,000 per month.

under S.9

$10,000 x 96 months x 40% = $384,000

under S.10

$10,000/27 x 4/5 x 53 days = $15,703.70

under S.10A

Medical and Hospital expenses $1,552

Interests
S.9	$384,000.00
S.10	15,703.70
S.10A	1,552.00
Total	$401,255.70

Interests at 1/2 judgment rate is

$401,255.70 x 4% x 25 months = $33,438.00

43. In the premises the damages assessed is $434,693.70 and I give judgment for the Applicant in the sum of $434,693.70.

44. Order nisi : costs to the Applicant. Certificate for counsel.

45. The Applicant's own costs to be taxed in accordance with Legal Aid Regulations.