YU SING YUK v. HONG KONG & KOWLOON WHOLESALE SALT CO LTD

bjbj DCEC000148/1983 VDC ECC NO.148 of 1983 Scriven D.J. 25.5.1984 Master & Servant Employees Compensation Ordinance (Cap. 282) Coolie - Injured unloading barge. Employee of cargo owners even when engaged by head coolie. (No appeal) IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION EMPLOYEES COMPENSATION CASE NO. 148 OF 1983 ___________________ BETWEEN YU SING YUK Applicant and HONG KONG & KOWLOON WHOLESALE SALT Respondent COMPANY LIMITED __________________ Coram: H.H. Judge Scriven in Court. JUDGMENT ___________ This applicant, a coolie, fell from a lorry whilst he was helping to load it with bags of salt being transferred by crane from a lighter to the lorry. He described to me how a bag from he 5th layer of bags - standing at about a man s height on the lorry - fell towards him, how he tried to catch it with his hook, but in view of its weight he was unable to control it and instead he fell from his position on the vehicle to the ground. He sustained a fractured wrist and possibly a fractured humerus and claims compensation for temporary incapacity and for permanent partial incapacity under the provisions of Sections 9 and 10 of the Employees Compensation Ordinance Cap. 287 [The Ordinance]. The point for my decision is short, since the Respondents have agreed the amount of, and the rate at which compensation should be assessed if the Applicant brings himself within the framework of Cap. 282. That short point is whether the Applicant is an Employee within the meaning assigned to the word by S.2(1) of the Ordinance. If he was an employee and in the employment of the Dependants he has a night to claim compensation for his injuries by virtue of S.5(1) of the Ordinance. In brief and general terms an Employee in so defined as a person working under a Contract of Service but there is a proviso to S.2(1) - proviso (b) which reads as follows:- Provided that the following persons are excepted from the definition of employee . (b) any person whose employment is of a casual nature and who is employed otherwise then for the purposes of the employers trade on business ..... This applicant was on the evidence a casual worker as a coolie and so only the second limb of the proviso to S.2(1)is in issue, that is to say was he employed otherwise then for the purposes of the employers trade on business? Then to answer that question, and before doing so, I must find out who the Applicants employer was, and when I say the Applicant was a Coolie at the material time, some of the legal peculiarities attaching to that reducing breed of men, are I suspect instantly apparent. But then even the term Coolie is not I find truly a term of art such that an instant impression of the general relationship between him and these he serves - using that word in an ambiguous sense to embrace either services or service - arises in any lawyers mind, but in view of the authorities recording the heroic struggles of previous judges and academics to pigeon hole the status of a coolie, I must first turn to the facts and record them as I find, then because all those facts historically helping to point the way to a legal definition are in issue. I have not had much assistance on this score from the witnesses, who have understandably not had English Common Law concepts of the relationship of master and servant in the forefront of their minds. The Applicant described how he had worked over a period for one CHAN Ming and said that he would wait for jobs at Shamshuipo with a group of colleagues until a head coolie - such as CHAN Ming contacted them and told them of a job. He described how the job might be one calling for 10 coolies and carrying a fee of $100 so that each man would receive $10. The Respondents are importers of Salt and the Applicant said he had worked for various Salt Godowns , as he called them including the Respondents. He said that on the 12th January, 1982 he received instructions from CHAN Ming about a job for the next day, and acting on these instructions - on the day of his accident - he took a tunnel Bus and went to the Hong Kong side to Sai Cheung Street and there he met a group - he was not sure how many but usually it was 10-12 - and he was given his instructions, by CHAN Ming, to carry, as he said, bags of salt firstly from a lighter to a goods vehicle then later, these bags were to be carried back to Shamshuipo. The accident then occurred, and he lost consciousness, until he awoke in Hospital, where he was later visited by CHAN Ming and others. He said that he worked under this arrangement 5 or 6 times a month, working for CHAN Ming as he said. The Applicant said he understood that the lorry from which he fell was owned by one Siu and had on its side the Chinese characters Yim Yip , which was conceded by the Respondents to represent their name, and then Mr. Siu, who later gave evidence for the Respondents, agreed that he was the registered owner of the vehicle but had put the Respondents name on the side doors as the Correspondence address as he said. Whether or not this complies with Part III of the Road Traffic (Construction and Use) Regulations made pursuant to the Road Traffic Ordinance is not for me to adjudicate upon here, but it does seem unnecessarily convoluted for one person to be the owner of a vehicle with anothers name and address on it, and I shall revert to this when I have to assess the worth and weight of the Respondents evidence. The Applicant said that when he was working at the Respondents place of business he received instructions only from CHAN Ming, and he described how, after the accident, CHAN Ming brought him $100, from which he meant me to infer as I do that it was his wages for the day of the accident, and then said that CHAN Ming lent him $100 and made a further gift of $50, and told him to chase the Respondents if he wanted any more. The Applicant did so and received a further $200 from the manager Mr. HO Lok - on a friendly basis . Nothing turns on this: Mr. HO Lok giving evidence confirmed a loan of this amount and I do not feel able to draw any inference either way from the mere fact of payment whether by way of a gift or loan of this amount. And so the picture the Applicant presented was of himself working on this occasion under the instructions of CHAN Ming at the Respondents premises, but without any direct contact with any of the Respondents employees for supervision, instruction, or even renumeration; then and to underline his insistence that he worked under CHAN Ming the Applicant described how the renumeration for a coolie gang of say 7 was split into 8 shares and the ganger received an extra share: this he said was CHAN Ming s practice and perquisite, but then, right at the end of the cross-examination, he said. No I do not think I worked for Chan - the goods belonged to Yim Yip - we worked for Yim Yip - my employer is the goods owner. The last piece of testimony contained a contradiction in terms that only became apparent later in the evidence, when I heard that sometimes the Respondents carried their own (salt) Goods, and sometimes others collected their purchases but that they used the same lorries and that coolies could and did load these lorries whichever system was in operation. The Applicant described to me how on any particular day he would make perhaps 2 journeys with lorries he had helped to load across to Kowloon and would be paid in Kowloon at the end of the last journey. When CHAN Ming, a coolie of 69 years of age, was called to give evidence for the Applicant he denied any suggestion that the Applicant worked for him, and said he was working, like me, for Yim Yip . He described how he dealt with Mr. Siu at the Respondents and that the lorries belonged to Mr. Siu but stressed that we worked for Yim Yip CHAN Ming ALSO denied any suggestion that he received any extra share, but said that Mr. Siu personally paid each coolie at the time of finishing the job. He denied strongly that any supervision was given to the Coolie gang and said no instructions were given as none were needed - the remark no doubt of a professional, proud of his skill. He said however that he only worked for Yim Yip nowadays in view of his age and only worked for them 1 or 2 times per month, and the day of the accident was one of those have occasions. Now I find the significance of CHAN Ming s evidence to lie not in his contradiction of the Applicant s evidence - which I find to be reconcilable on material points without inpugning either witness honesty - but in his assertion that on the material date he was working, as was the Applicant, for the Respondent, having been paid at the end of the job by Mr. Siu, of the Respondent firm at the lighter at the Hong Kong Waterfront. Mr. Siu the Respondent s storekeeper who treated with the coolies also owned the only 2 lorries used by the Respondents. He was the first person in authority at the Respondent to be told of the accident to the Applicant; in fact he was answering a telephone call when it happened, having been called off the lighter to do so. It is significant that he was on the lighter, supervising the off loading which was part of the operation continuing without break, the off-loaded bags being loaded immediately on to the Respondents lorry - albeit Mr. Siu s lorry hired for the day. Mr. Siu must have been in a position to exercise, should the need arise ultimate or residual control over the operation. Mr. Siu said his duties did not include paying coolies, but under cross-examination admitted that if our company employed them they would come back to collect pay, I paid them on 8/10 occasions in a year . I am satisfied on the evidence that this was one of those occasions when the goods were being carried for the Respondents own purposes and that whether as carrier or owner is immateral to the Applicant s case. The lorry had the Respondents name on the side and even if the lorry was carrying goods already sold to a customer, the evidence of CHAN Ming about payment tips the sea1y in favour of the Applicant s contention that at the material time he was working for the Respondent firm, and was not employed by their customer simply to collect goods from the Respondents premises whether warehouse, or lighter. Having found that the Applicant was, in neutral terms, working for the Respondent I have next to decide the difficult and vital question of whether he worked under a Contract of Service . My finding that he worked for the Respondent merely brings the Applicant out of the excepted class of person described in proviso (b) to S.2(1) of the Ordinance. The statusin law of the Hong Kong Coolie has, I think I can fairly say, after reading the authorities cited to me, caused great difficulty and concern to the Courts over the years. S.5(1) of Part II of the Ordinance, which creates the Employers liability, contains two elements material to this case, and (truncated) it reads as follows:- 5(1) if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee his employer shall ...... be liable to pay compensation ..... and for the purpose of the Ordinance an accident shall be deemed to arise out of and in the course of the employment notwithstanding ..... that he was acting without instructions from his employers if such act was done by the employee for the purposes of and in connexion with his employers trade or business . The significance of the second limb of S.5(1) above is that the evidence here, which I shall have to return to, shows clearly and indisputably that the coolie gang worked without clear instructions. They knew the work required of them without being told more than the number of bags to be loaded; no one told them to adjust or align the bags, and so the effect of the proviso is that this Applicant in not on risk for defeat solely by his own witness evidence that no orders were given by the Respondents as to the manner of performance of the Applicant s work, which otherwise would be a weighty matter for my consideration. Of the authorities cited to me, that of the Full Court in 1973 in the case of WONG Po-sun v. New Universal Paper(1) (reviewing the previous authorities) is most helpful, even if I say, with the greatest respect, that the judges were really demonstrating that the distinction between a master and servant relationship, and a contract for services must depend on the facts of each case. Blair Kerr, S.P.J., as he then was, quoted from Mr. P.S. Atiyah and his text book on Vicarious Liability in the Law of Torts , and other authors, pointing out the difficulty of applying a simple test, and Huggins J., as he then was, put the matter succinctly when he said (at page 78). Reference was made in the course of the argument to various tests which academic writers have sought to extract from the decided cases, but in my view those cases show nothing more than that in different circumstances different factors assume greater significance; it is wrong to regard any one of these factors as in itself a conclusive test which will govern the decision of all possible cases. As counsel for the Respondents put it, one must look at the totality of the particular relationship. Amongst the facts as I find them in this case are, that on the day in question:- i) The Applicant was informed by CHAN Ming of work available at the Respondents premises - by telephone the night previously. ii) The Applicant made his way to a wharf in Sai Cheung Street to wait for work pursuant to (i). iii) The Applicant was one of a group of approximately 10 coolies awaiting the same assignment as the Applicant pursuant to CHAN Ming s information. iv) CHAN Ming informed the group of the work to be done when the group was at the wharf. v) This work was performed by the Applicant entirely on a lorry owned by one SIU Tak-kam but hired by him to the Respondents for their own purposes. vi) The Applicant fell from the Respondents lorry in the course of loading it for the purposes of the Respondents business. vii) The Applicant had no direct contract for renumeration with the Respondent, but did so through (his agent) CHAN Ming. viii) CHAN Ming contracted with the Respondents for the job at a rate for the job for and on behalf of himself and the Applicant and the other coolies (as their agent therefore). ix) No supervision of direction was given on the occasion of the Applicant s accident by or on behalf of the Respondents in connection with the work undertaken by the Applicant. x) Payment for the entire job was made by SIU Tak-kam on behalf of the Respondents to the entire coolie gang through (the agency of) CHAN Ming. xi) The Respondents retained residual control through SIU Tak-kam over the manner of work. Of course my findings of fact incorporate findings of law that CHAN Ming was the Applicant s agent but I consider that whatever the Applicant s ultimate relationship with CHAN Ming might be, that is to say whether employer fellow employee, pure agent, or employers agent, there must be an element of agency and having accepted as I do CHAN Ming s evidence that he did not employ or supervise the Applicant it follows that whatever he did for the gang must in law be as the agent for them all whether collectively or for each man individually. In another case before the Full Court (KWONG Man-luen v. Hong Kong Wah Tung Stevedore Co.)(2) Pickering J. Drew heavily on the old English Workmen s Compensation case of Scanlon v. Hartlepool Seatonia Steamship Co. Ltd. (No. 2)(3) and I find that the facts of the present case are even more closely resembling Scanlon s case than were the facts in Kwong Man Luen s case. I suppose it is tempting to regard coolies, who appear it seems to me, as miraculously as the Genies of Arabian denomology to do a mastem bidding but in their own way, and then disappear whence they came, as truly independant contractors, but perhaps a better comparison is with underwriting members of Lloyds, (even if such is not instantly physically obvious) to demonstrate that a body of men acting apparently and in effect in concert are nevertheless individuals engaging only their several liability for their share of the risk and premium but with no joint liability for the obligations of each other and each, significantly, engaging only his own liability but through an agent (who may well be a fellow underwriter on risk) authorised in that behalf; whilst the underwriter accepting his share of a risk would clearly not be engaging in a contact of service, the significance of the comparison that I have chosen lies in the fact that men can act in law in concert, yet without engaging their liability jointly and I do not feel obliged to find that simply because all the gang were engaged through one of their members who was their agent spokesman and medium of communication, that the ultimate or residual right to control their manner of work was not reserved to the Respondents through their employee on the lighter Mr. Siu. I have recorded my finding to the contrary. I find therefore that this applicant was engaged under a Contract of Service with, and an employee of, the Respondents, and that that amounted to employment within the meaning of the Ordinance and that the accident on the 13th January, 1982 arose out of and in the course of that employment, so that I hold that the Respondents are liable to pay the compensation provided for in the Ordinance, and which I assess and award in the sum of $6,048 pursuant to S.9, and $11,808 pursuant to S.10 of the Ordinance, making a total of $17,856. There will be judgment accordingly. (N.G. Scriven) District Judge (1) WONG Po-sin on behalf of the dependants of Ken Man Shun (Deceased) and New Universal Paper Co. Ltd. 1973 H.K.L.R. P.59. (2) 1971 H.R.L.&. P.390 (3) 2 B.W.C.C. 945 112 PAGE PAGE - - &`#$ VDC ECC NO Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR VDC ECC NO Title Microsoft Word Document MSWordDoc Word.Document.8 VDC ECC NO Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR