WONG YUN SAN v. CHEUNG YUE YIU t/a RODIO ENGINEERING CO. AND ANOTHER

DCEC180/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 180 OF 2006

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J U D G M E N T

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1. This is an Employees’ Compensation claim by the applicant who alleged that he was injured on 18 November 2004 whilst working in the course of employment with the respondent.

2. He now claims compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (hereinafter called “The Ordinance.”)

3. Prior to this date, there were two respondents in the case, one being the present respondent, then as R1, who claimed that he was not the employer of the applicant and another respondent, then as R2, a Mr Chan King-lam, who claimed that he was the employer of the applicant.

4. In view of the situation, Marlene Ng J had ordered a split trial for issue of liability and quantum.

5. The only issue on trial here today is the liability issue.

6. The applicant today has withdrawn the case against R2, the only respondent left is the previous R1.

7. The respondent who acted in person was absent today.  In fact, so far he has only filed an answer dated 2 May 2006 and another Statement of Earnings which merely stated he could not locate the income record of the applicant.

8. The respondent also denied in the said answer that the applicant was, at the material times, employed by him and/or that he was injured during work in the course of such employment.

9. The issues before the court were merely whether:

(a)  The applicant was at the material times employed by the respondent.

(b)  Whether he was injured in the course of such employment.

Applicant’s case

10.  The applicant stated that at the material times he worked for the respondent as a decoration worker performing decoration work at house No. 1, Lily Path, Palm Springs, Yuen Long, (hereinafter called “the premises.”)

11.  He understood the respondent as the contractor of the decoration work at the premises.  He said he was injured while sawing the doorframe of the master bedroom upon instructions from the respondent.

12.  Applicant said the respondent pay him daily wages at $300 per day.

13.  He denied the allegation by the respondent that he was no longer employed by the respondent at the material times.

14.   He also said that he was never employed by the former R2.

15.  Applicant said after the accident, he was sent to the hospital by the respondent in the respondent’s car and he was advised by the respondent not to tell the details of the accident to the police on duty in the hospital.

16.  Applicant said he was always paid in cash and he was paid twice a month by the respondent.  He said on every occasion the respondent asked him to sign receipt for the payments but he was not given any copy of such receipt nor did he pay attention to the contents of the receipts.

17.  Applicant said the contents of the Form 2 filed to the Labour Department where it says that the place of accident was Lot No. 1045 Shui Lau Tin, Kam Tin, Yuen Long, was incorrect. 

18.  Applicant further stated that the telephone number and address of the employee in the said Form 2 was in fact that of the respondent, not his.

19.  He said that the employer particulars in the said Form 2 was also incorrect.

20.  In support of his employment with the respondent, applicant produced to court the letter from Kai Shing Management Services Limited, manager of the estate in which the premises was located which confirmed that between 23 October 2004 and 22 January 2005, the applicant was authorised by the owner of the premises to enter the premises and perform decoration work there.

21.  Applicant said although he has met the former R2, he was not familiar with him nor was he ever employed by him.

22.  Applicant said upon knowing about the filing of the said incorrect Form 2, he filed a new Form 2 on 4 July 2005 to the Labour Department.

23.  The evidence of the applicant is uncontested at trial. 

24.  Applicant also produced letter dated 4 April 2006 from Labour Department Employees’ Compensation Division stating that Kai Shing Management Services Limited had confirmed that according to their record, the contractor of the said decoration work during the period for the premises was the respondent and that they had record of the applicant and the respondent doing decoration work at the premises.

25.  The applicant also testified in court that the respondent was the person who gave instructions to him to work at the premises.

26.  Applicant said respondent also instructed the applicant as to the nature of work to be done at the premises.  The applicant further confirmed that all tools used by the applicant during such decoration work were provided by the respondent.

27.  The evidence of the applicant, as I have said earlier, is totally unchallenged at trial.  After perusing all evidence before the court, the court is satisfied that the applicant was indeed injured at the material times whilst in the course of employment with the respondent.  I find therefore that the applicant’s case against the respondent is proved and the respondent is liable for the accident.

28.  I also make an order nisi that all costs of the proceedings (including all costs reserved) be to the applicant in any event, the same to be taxed if not agreed,  the same is to be made absolute on expiration of 14 days.  I also order that applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.