NG TIM YIP KEVIN v. CHAN HO KIN (formerly trading as KENNY’S ENGINEERING COMPANY) HCPI 948/2005

S’s words:-

Another plaintiff has failed to establish a claim against his former employer. One of the defence of the Defendant was that the Plainitiff was not his employee. That “standard” and “usual” defence was not accepted by the Court, not surprisingly.

However, if the Defendant did agree the Plaintiff an employee at the very first beginning, the Defendant would have his insurers (and the solicitors of the insurers) to assist his case. Thus, is it always preferable to suggest a plainitiff not his/her employee? It is too difficult to set up a formula, and also, in many occasions the defendant’s insurers would draw their own conclusions leaving the disappointing employer to consider arbitration.

Never mind. The Honourable Court in this action did conclude that the works assigned to the Plaintiff was a simple task and the accident was caused due to the fact that the Plaintiff (and his colleague) failed to follow the instructions of the Defendant. Therefore, the Plaintiff’s claim was dismissed.

--- quote from judgment ---

It is the plaintiff’s case that he started working for the defendant in about September 2002 as an apprentice in repair and maintenance of water plumbing and electrical work. The plaintiff was only 17 at the time.

On the day of the accident, the plaintiff, still an apprentice, was assigned by the defendant to dismantle drainage pipes at the Site. That work of dismantling was carried out by the plaintiff working together with another apprentice of the defendant by the name of Ah Cheong.

At about 5.30 p.m. when the two of them had dismantled a section of the drainage pipe which weighed about 100 lbs, and both of them were carrying the dismantled pipe, one at each end, the colleague of the plaintiff slipped letting fall his end of the dismantled pipe. As a result, and because the plaintiff could not get away in time, the plaintiff’s right hand was crushed by the dismantled pipe thereby causing very serious injuries to the plaintiff’s right hand and fingers.

Counsel for the plaintiff, in his opening, based the negligence of the defendant to be as follows :

(a) insufficient manpower allocated by the defendant to carry the heavy dismantled pipe;
(b) failure of the defendant to be present and to properly supervise the work of two inexperienced apprentice;
(c) failure to give proper training and instructions to the plaintiff and his colleague;
(d) failure to provide a proper platform for the work of dismantling; and
(e) failure to provide the proper tools or equipment to properly transport the dismantled pipe.

In so far as the working relationship between the plaintiff and the defendant goes, I have no difficulty accepting the plaintiff’s evidence that he was the employee of the defendant, even taking into account the terms of the employment contract between them.

From the findings above, there can be no doubt but that the plaintiff was an employee of the defendant and therefore at the time of the accident, the defendant was under the duty to the plaintiff to act as an employer.

Given the findings above, there was no good reason for the plaintiff to have ignored the instructions of the defendant to cut the pipe into smaller pieces or sections for dismantling, I find this accident to have come about because of the failure of the plaintiff to follow the instructions that he was given by the defendant.

The work involved in this case was not work which involved any great complexity. It has never been challenged by the plaintiff that the defendant had given them full instructions as to how to cut and dismantle the water pipe.

For the reasons given, I do not find any negligence on the part of the defendant. The accident came about only because of the plaintiff’s failure to follow the instructions given to him to cut the pipe into manageable sections.

Accordingly, the plaintiff’s claim is dismissed.