Lee Ting Sang v Chung Chi-Keung
| Jurisdiction | UK Non-devolved |
| Court | Privy Council |
| Judgment Date | 1990 |
| Year | 1990 |
| Date | 1990 |
Employment - Contract of employment - Service of, or for services - Mason working mainly for one subcontractor - Paid piece rate or daily rate - Not supervised - Claim for compensation for injury at work - Whether mason subcontractor's employee -
The applicant, a mason, was working for a subcontractor, at a construction site, chiselling concrete as instructed by the subcontractor. The applicant used tools supplied by the subcontractor and his work was not supervised but was inspected periodically by the main contractor's foreman. Depending upon the nature of the work he had to do the applicant was paid either a piece-work rate or a daily rate for working from 8 a.m. to 5 p.m. If he finished his work early he assisted the subcontractor to sharpen tools. He sometimes worked for other contractors but he gave priority to urgent work of the subcontractor telling those for whom he was then working to replace him. During the course of his work at the site he was injured. On his application against both the subcontractor and the main contractor for compensation under the Employees' Compensation Ordinance the judge dismissed the claim holding that the applicant was not an employee within section 2(1)F1 of the Ordinance but an independent contractor. The Court of Appeal upheld that decision.
On the applicant's appeal to the Judicial Committee: —
Held, allowing the appeal, that English common law standards had to be applied in determining whether the applicant was working as an employee of the subcontractor or an independent contractor, the fundamental test being whether or not he was performing services as a person in business on his own account and thus as an independent contractor; that since the factual circumstances in which he performed his work had to be investigated and evaluated in determining the applicant's status it was a question of fact for the trial judge, and an appellate court would not interfere with his finding unless it was unsupported by the evidence or was one which he could not reasonably have reached if he had properly directed himself on the law; but that, although the courts below had concurrently found as a fact that the applicant was an independent contractor, they had been misled in assessing the facts by wrongly relying on two dicta from inapposite cases; that the finding was contrary to the established facts and so unreasonable as to constitute an error of law, so that the Board were justified in reversing their decisions; and that, therefore, the applicant was working as an employee under a contract of service with the subcontractor and was entitled under the Employees' Compensation Ordinance to be compensated by the subcontractor and main contractor for his injury (post, pp. 412A–D, 414D–415A, 418D–F).
The following cases are referred to in the judgment of their Lordships:
Bank voor Handel en Scheepvaart N.V. v. Slatford [
Bobbey v. W. M. Crosbie & Co. Ltd. (
Davies v. Presbyterian Church of Wales [
Easdown v. Cobb [
Edwards v. Bairstow [
Market Investigations Ltd. v. Minister of Social Security [
O'Kelly v. Trusthouse Forte Plc. [
Smith v. General Motor Cab Co. Ltd. [
Srimati Bibhabati Devi v. Kumar Ramendra Narayan Roy [
Stevenson Jordan & Harrison Ltd. v. MacDonald & Evans [
The following additional cases were cited in argument:
Hellyer Brothers Ltd. v. McLeod [
Nethermere (St. Neots) Ltd. v. Gardiner [
Pickstone v. Freemans Plc. [
Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [
Simmons v. Heath Laundry Co. [
United States of America v. Silk (
Wong Po-sin v. New Universal Paper Co. Ltd. [
Appeal (No. 44 of 1989) with special leave by the applicant, Lee Ting Sang, from the judgment of the Court of Appeal of Hong Kong (Cons V.-P., Clough and Power JJ.A.) [
The facts are stated in the judgment of their Lordships.
Patrick Bennett Q.C. and Emma Griffiths for the applicant.
Peter Goldsmith Q.C. and Nigel Kat (of the English and Hong Kong Bars) for the respondents.
8 March. The judgment of their Lordships was delivered by Lord Griffiths.
The first respondent is a building subcontractor who was at the material time executing a subcontract on behalf of the second respondents who were the main contractors upon a construction site at the Shan King Estate in Hong Kong. The applicant is a mason who was working for the first respondent upon the subcontract. During the course of his work the applicant fell from a high stool and suffered injury. The question raised by this appeal is whether the provisions of the Employees' Compensation Ordinance (c. 282) entitled the applicant to be compensated for his injury by the respondents.
The Ordinance is clearly modelled upon the English Workmen's Compensation Acts and provides for compensation to be payable to an employee in respect of an accident arising out of, and in the course of, his employment. An employee is defined in section 2 as “any person who has … entered into or works under a contract of service or apprenticeship with an employer in any employment.” The definition of employee includes casual workers: see section 2 (1) proviso (b); and also employees who have entered into concurrent contracts of service with two or more employers: see section 11(7).
The respondents resisted the applicant's claim for compensation upon the ground that he was not working for the first respondent as an employee but had been engaged to carry out the work as an independent contractor. At the hearing before the district judge the applicant gave evidence in which he explained the nature of his work and the terms of his engagement. The respondents called no evidence.
The district judge held that the applicant was working as an independent contractor and therefore dismissed his claim for compensation. The Court of Appeal dismissed the applicant's appeal. The applicant now appeals upon the ground that he was at the material time working as an employee of the first respondent within the meaning of the Ordinance.
In opening the appeal Mr. Bennett invited their Lordships to apply a purposive construction of the Ordinance which, he...
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