CHOI YIN LING v. SUNG WAI KAU t/a SUNG KAU TRANSPORTATION CO.

[English Translation – 英譯本]
DCEC 569/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 569 OF 2003

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JUDGMENT

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Introduction

1. The deceased Cheung Sam Yau was a transportation worker. On 9 July 2001, he suddenly lost consciousness and fell onto the ground in the course of delivering goods for the respondent. He was certified dead after being sent to the hospital. The cause of death as stated in the post-mortem report is “Coronary Occlusion by Atheroma”.

2. The applicant is the widow of the deceased. Acting for herself and on behalf of the members of the deceased’s family, she now claims against the respondent for employees’ compensation.

3. The respondent denies liability to pay compensation. He denied in his Answer that the deceased died in the course of work. Although he admitted in his Answer that the deceased was his employee on the day of the incident, he alleged in his written statement that he was unsure whether he had an employment relationship with the deceased.

4. Mr Khaw, Counsel for the applicant, stated in his opening submission that the main issues in the present case are as follows:

(1)        Was the deceased an employee of the respondent at the time of the incident?

(2)        Can the incident be regarded as an “accident” which caused bodily harm or death?

(3)        Can the incident be regarded as an “accident arising out of the employment”?

5. At trial, the applicant gave evidence and called a medical expert to give evidence with a view of proving that the deceased’s death was related to manual labour.

6. The respondent acted in person and gave evidence at trial.

Facts

7. There was little dispute about how the incident took place. On 6 July 2001, the respondent received from Shun Tat Trading Company a batch of goods (including 200 cartons of laundry soap). The goods were scheduled to be delivered to Siu Yuen Paper Products Trading Company in Hunghom on the same day. However, due to typhoon, the delivery was postponed until 9 July.

8. On 8 July, upon referral by a “coolie head” (i.e. a coolie sub-contractor), the respondent employed the deceased as a casual worker to deliver the goods at an agreed wage of HK$550.

9. On the morning of 9 July, the respondent drove the deceased to Siu Yuen Paper Products Trading Company. Upon arrival, they began to move the goods into the company. Each of them carried two cartons of goods on his shoulders on each trip, and each carton weighed approximately 20 kg. When they had delivered about two-thirds of the goods, the deceased suddenly lost consciousness and fell onto the ground.

10. The deceased was subsequently rushed by ambulance to Queen Elizabeth Hospital, but was eventually certified dead at 12:30 p.m.

Employment Relationship

11. In Poon Chau Nam v Yim Siu Cheung, FACV No.14 of 2006, Ribeiro PJ, in dealing with the issue of whether a casual air-conditioning worker fell within the definition of “employee” under the Employees’ Compensation Ordinance (“the Ordinance”), clearly explained how the court should determine whether an employment relationship exists. Ribeiro PJ referred to Section 2(1) of the Ordinance and said:

The effect … is to include within the definition of ‘employee’ for ECO purposes, a person working under a contract of service even if his employment is of a casual nature, provided that such casual employment is for the purposes of the employer’s trade or business. (see paragraph 28 of the Judgment)

12. The explanation in Chinese of the above passage provided by Mr Khaw, Counsel for the applicant, which this Court adopts, is that if the casual work is done for the purposes of the employer’s trade or business, the person doing that work can be included within the definition of “employee”.

13. Even if the worker was injured or died on the very first day of work, this would be irrelevant to the issue of whether the worker fell within the definition of “employee”. (Chan Ming v Wayfair Investment, DCEC No.188 of 1996)

14. On the question of determining whether an employment relationship exists, Cooke J stated in Market Investigations v Minister of Social Security [1969] 2 QB 173 at 184-185 as follows:

The fundamental test to be applied is this: Is the person who has engaged himself to perform these services performing them as a person in business on his own account? If the answer to that question is ‘Yes’, then the contract is a contract for services. If the answer is ‘No’, then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases.  The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and the facts which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.

The above statement was approved by the Privy Council in Lee Tin-sang v Chung Chi-keung [1990] 1 HKLR 764.

15. Put simply, the court has to consider whether the person providing the services is carrying on his own business. If the answer is in the affirmative, he is not an employee; otherwise, he is an employee. In determining this issue, there can be no exhaustive list of the relevant considerations before the court, nor can the court pre-set the relative weight to be given to particular considerations. Control will very often have to be considered, but it is by no means the sole consideration. The court may also have to consider other factors, such as whether the person provides equipment or hires other people, whether he assumes any financial risk or any responsibility for investment and management, and whether he has an opportunity of profiting from his good performance.

16. As far as the present case is concerned, the deceased was merely a manual labourer who did not provide his own equipment. He received fixed remuneration. He did not have to take any financial risk, but did not have the opportunity of profiting either. With regard to control, the time and location of his work were arranged by the respondent, who was also solely responsible for liaising with customers.

17. In my judgment, it was obvious that on the date of the incident, the deceased was not carrying on his own business and was instead employed by the respondent.

Accident

18. In Fenton v J Thorley & Co. Ltd. [1903] AC 443, a worker suffered a rupture of the blood vessels in his brain, the suspected cause being that he had applied excessive force in turning a wheel. The House of Lord adopted a broad definition of the word “accident”, which included an unforseen or unplanned event. As can be seen from the various cases cited by Mr Khaw, this broad definition has been widely adopted by Hong Kong courts.

19. In my view, the circumstances under which the deceased died of coronary occlusion were very similar to the facts of the aforesaid case. The incident should therefore fall within the definition of “accident” under the Ordinance.

Accident arising out of employment

20. Cardiologist Dr Victor Goh, who was the medical expert engaged by the applicant, testified that, according to the post-mortem report, there was no death of cells in the heart of the deceased. This indicated that the coronary occlusion in the deceased was triggered by cardiac hemorrhage arising from sinus arrhythmia. Dr Goh also provided some medical writings for the court’s reference, which stated that manual labour was a widely known cause of cardiac hemorrhage in the medical field.

21. Mr Sze, a street sleeper, witnessed the accident. In his statement to the police, he mentioned that “two persons were moving boxes of goods from the truck to the shop. One of them clung to the boxes when he walked out of the shop after delivering a box of goods, looking anguished. Then he suddenly fell backwards and slumped to the ground, lying on his back.” This showed that the incident took place in the course of delivery of the goods.

22. Viewing the evidence as a whole, I am satisfied on a balance of probabilities that the coronary occlusion in the deceased was caused by his manual labour in delivering the goods.

23. Section 5(4) of the Ordinance provides that an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment.  I do not find any evidence to the contrary in the present case.

Compensation

24. For the above reasons, I find that the respondent is liable to pay employees’ compensation to the applicant.

25. At the time of the accident, the deceased was aged 52 and earning a daily wage of HK$550. Pursuant to Section 6(1)(b) of the Ordinance, the amount of compensation is a lump sum equal to 60 months’ earnings or 60 times the amount specified in the second column of Schedule 6 (i.e. HK$21,000), whichever is less.

26. The applicant testified that the deceased’s average monthly income prior to his death was HK$12,000. This figure was worked out by multiplying the daily wage of HK$600 by 20 working days per month.  However, the applicant was evasive when being asked how she could remember the deceased worked 20 days a month. I do not think the applicant’s evidence in this respect can be relied upon.

27. Having regard to Section 11(2) of the Ordinance, I consider the Census and Statistics Department report filed by the applicant to be the best evidence. Based on the statistics, the median average monthly income of a delivery worker between March and September 2001 is HK$8,998. Multiplying it by 60, I get the figure of HK$539,880.

28. Concerning funeral expenses, I accept the applicant’s evidence that she has spent no less than HK$150,000 on the relevant expenses.  However, since the Ordinance stipulates a maximum of HK$35,000, I accept this figure as representing a reasonable amount.

29. I order the respondent to pay to the applicant a total sum of HK$574,880, together with interest on the above judgment sum, at half judgment rate from the date of application to the date of judgment, and thereafter at judgment rate until payment.

30. With regard to the apportionment of compensation, under paragraph 6 of Schedule 7 to the Ordinance, the applicant is entitled to the sum of HK$35,000 and 45% of the sum of HK$539,880, totalling HK$277,946. The deceased’s mother is entitled to 10% of the sum of HK$539,880, i.e. HK$53,988. The balance of HK$242,946 is to be divided equally among the six children, which means each child is entitled to HK$40,491.

31. I make an order nisi that the respondent shall pay the applicant’s costs.  I also grant a certificate for Counsel. Costs are to be taxed by a Master if not agreed. The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations. This order nisi shall become absolute after 14 days.