YEUNG TIN SANG v. THE BROTHERS CO. (a firm)

DCEC800/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO.800 OF 2000

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JUDGMENT

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[1] The Applicant, Mr. Yeung Tin Sang, then aged 36, was injured on 1st September 1998, while he was attending to delivery of liquefied petroleum gas ("LPG") bottles. The Applicant's allegation was that his left ring finger was injured by the cargo door of the delivery lorry. The Employees' Compensation (Ordinary Assessment) Board assessed the quantum of permanent loss of earning capacity caused by the injury at 0.5%.

[2] The Applicant claims compensation under various sections of the Employees' Compensation Ordinance, Cap. 282.

Background:

[3] The Applicant had been employed as a delivery worker by the Respondent for two prior periods: from 2/5/1995 to 25/12/1995 and from 1/4/1996 to 31/5/1997. After the Applicant left the Respondent's employment in 1997, he obtained a driving licence for a 5 1/2 tons lorry on or about 1/8/1997. The Applicant then worked for Yau Leun Gasoline Co. as a driver from 25/8/1997 until sometime in February 1998.

[4] The Applicant alleged that on or about the middle of August 1998, Madam Huang Shao Peng ("Madam Huang"), wife of Mr. Li Wui Lam ("Mr. Li") one of the partners of the Respondent, spoke to the Applicant's mother and invited the Applicant to return to work for the Respondent. The Applicant further alleged that after a meeting with Mr. Li and a subsequent telephone conversation with Madam Huang, he was employed by the Respondent as a driver, commencing from 1/9/1998.

[5] The Respondent alleged that sometime in August 1998, the Respondent advertised for a lorry driver and the Applicant applied in person. After the Applicant was interviewed by Mr. Li and a subsequent telephone conversation with Madam Huang, he was invited to take part in a driving test. The Applicant agreed to return on 1/9/1998 for the said driving test. The Applicant was not an employee of the Respondent on 1/9/1998, when he suffered the injury to his finger.

[6] Prior to the hearing, Mr. Lawrence K.Y. Lo, solicitor for the Applicant objected to the Respondent's late filing of Madam Huang's witness statement. Mr. Paul Kwong, counsel for the Respondent agreed to withdraw the same. Accordingly, the sole witness for the Applicant was the Applicant himself and Mr. Li and one of the Respondent's drivers, Mr. Chow Kin Fai ("Mr. Chow") were the only witnesses for the Respondent.

Issues:

[7] There are two issues in this matter. First, whether the Applicant was an employee of the Respondent on 1/9/1998, when he suffered the injury? Second, if he was an employee, was his injury suffered in the course of the employment?

The findings:

[8] The burden of proving that when he suffered the injury to his finger he was an employee of the Respondent was on the Applicant. The biggest impediment to the Applicant was the fact that while the parties agreed that there were written employment agreements for the two previous employments, there was no such written agreement in the employment commencing from 1/9/1998.

[9] Before I dealt with the written employment agreement issue, it was necessary for me to make finding of facts on two other matters.

The Driving Test:

[10] It was the Applicant's testimony that he first obtained his 51/2 tons lorry licence on 1/8/1997. On the day of the accident, the Applicant had been licensed for just over a year. Although Mr. Li agreed that it he had seen the Applicant drove by his store on some occasions, it would have been natural for Mr. Li to confirm the Applicant's driving skills before hiring him as a lorry driver for these potentially dangerous LPG bottles.

[11] Mr. Li alleged that he wanted Mr. Chow to observe the Applicant's skills while driving a fully loaded lorry. Therefore, he asked the Applicant to accompany Mr. Chow to the car park area where the delivery lorry was located. All of that was also reasonable, because it would not make much sense for testing the Applicant with an empty lorry. For reasons unexplained, the delivery was made with a different lorry then the one Mr. Chow used to pick-up the LPG bottles in Tsing Yi and Mr. Chow had to get the delivery lorry at a car park area. While they were there, the LPG bottles had to be transferred from one vehicle to the other.

[12] The requirement for the test was clearly justified when the Applicant, according to his own testimony, refused to drive the pick-up lorry when Mr. Chow handed keys to him. The Applicant's excuse was that the car park area was uneven and narrow and he was not sufficiently familiar with the controls of the pick-up lorry, so he was afraid of crashing it into the wall.

[13] It would not be natural for the Applicant to refuse to drive the pick-up lorry, if the Applicant had already been hired as a driver. However, if the Applicant was there only to take a driving test, it would have been reasonable for the Applicant to be more cautious and wanting to take the test in a better location would be logical. I found that on the morning of 1/9/1998, the Applicant was required to take part in a driving test.

The Deliveries:

[14] Mr. Li alleged that after Mr. Chow and the Applicant left for the test drive, he received an urgent delivery request from a customer in Chiu Hang. He therefore interrupted the driving test and requested Mr. Chow to make an urgent delivery. Mr. Chow confirmed that after he received Madam Huang's telephone call, he decided to make the delivery to Chiu Hang, before continuing with the Applicant's driving test.

[15] Mr. Chow also testified that although the Applicant did alight the lorry at Chiu Hang, it was Mr. Chan Man, the Respondent's delivery worker that they picked up at the car park, who delivered the LPG bottle to the customer. The Applicant merely accompanied Chan Man during his delivery.

[16] The Applicant however alleged that after they picked up Mr. Chan Man at the car park, they made 4 other deliveries before going to Chiu Hang. The Applicant also alleged that he was the one who physically delivered all LPG bottles. Mr. Chan Man only delivered the bills and collected the money.

[17] After careful consideration of the evidence, I found the Applicant's version of event less credible. If the Applicant was employed as a driver, it would be unlikely that he, rather than Mr. Chan Man the delivery worker, would have made all of the LPG deliveries. It may be reasonable for the Applicant to assist Mr. Chan Man in one or two of the deliveries, but it was not reasonable for the Applicant to have done all of the delivery works. I found that even after giving the appropriate discount on the fact that Mr. Chow is still employed by the Respondent, I still preferred his testimony over the Applicant's.

No Written Employment Agreement

[18] Finally, but perhaps most detrimental to the Applicant's case was that no written employment agreement had been signed by the parties. It was agreed by the Applicant that on both of his previous employments with the Respondent, there were written employment contracts.

[19] The Respondent's allegation was that it was its usual practice to enter into a written employment agreement with all employees, prior to their commencement day. On 1/9/1998, the Applicant was only invited to undertake a test to determine his driving skill, therefore no written employment agreement had been signed.

[20] The Applicant alleged that he already had a verbal employment agreement with the Respondent. During his meeting with Mr. Li, his position (as a driver) and his monthly wages (at HK$11,000.00) were agreed. During his subsequent telephone conversation with Madam Huang, his commencement day (on 1/9/1998) was also agreed. The Respondent's practice was to sign the written employment agreement at the end of the 3 months probation period.

[21] The Applicant's allegation was however, contrary to one of the Applicant's prior written employment agreement with the Respondent. In accordance with the content of the employment agreement dated 1/4/1996 (the "1996 Agreement"), the Applicant's commencement day was clearly stated as 29/5/1996. In other words, the 1996 Agreement was signed before the commencement of the Applicant's first working day. This was clearly contrary to the Applicant's allegation that it was the Respondent's practice to sign an employment agreement after the 3 months probation period. I found that the Respondent's practice was to enter into a written employment agreement with its employees prior to the commencement day.

[22] Based on these findings, I must conclude that on 1/9/1998, the Applicant was not an employee of the Respondent. Accordingly, there was no need for me to enquire as to the cause of the Applicant's injury. The application is dismissed.

Order:

(1) The application is dismissed.

(2) Costs of this application, together with all costs reserved, be to the Respondent. There shall be certificate for counsel.