Chand v Hansons Investment (Proprietory) Ltd [2011] FJHC 587; Civil Action 412.2006 (26 September 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No.412 of 2006

BETWEEN:

DHURUP CHAND (father's name Makiu) of Lot 50, Vatoa Road, Narere, Nasinu in Fiji, Carpenter.
PLAINTIFF

AND:

HANSONS INVESTMENT (PROPRIETORY) LIMITED a limited liability company having its registered office at 193 Victoria Parade, Suva, in Fiji.
DEFENDANT

Appearances: Ms S Narayan for the plaintiff
Ms R Naidu for the defendant
Date of hearing: 19th April, 2011

RULING

1. The preliminary issue to be decided in this case is whether Dhurup Chand was an independent contractor or an employee of the defendant .
   

Dhurup Chand alleges he suffered injuries in the course of his employment with Hansons Investment (Proprietory) Limited. The duty assigned to him was to work on 4 concrete coloumns. His claim in these proceedings is based on the duty of the defendant to have taken adequate precautions to provide for his safety. The circumstances which gave rise to the injuries are not in dispute .The Agreed Facts provide he befell the accident, when the scaffolding and wooden planks organized by himself moved.

2. Dhurup Chand testified that he was employed by the defendant from 8 October, 2005, on an arrangement, in terms of which he was to be paid $80 a week. He stated he did not fill a Fiji National Provident Fund form nor discuss same with the defendant. The materials were provided by the defendant.
   

Suresh Kahn, a director of the defendant company asserted he was not an employee and a sum of $250 was agreed as payment for an one-off job.

3. The important and critical question is whether the defendant had the right to control Dhurup Chand's work at the particular time, although this test has over time, been demonstrated to be inadequate, in the light of new and evolving employment practices. It transpired in his cross-examination, that he was not asked to report to any person, nor was there anyone to supervise his work and no conditions were imposed on him.
   
4. In his submissions, the defendant has cited Hassan v Transport Workers Union, (2006) FJSC 11.In that case, the factors contraindicating an employer-employee relationship were that the owner of a taxi business had no control over the daily driving of the drivers, and were required to indemnify him for any damages arising out of their negligence and paid their own taxi and FNPF levies.
   

The plaintiff, in his submissions, has cited several authorities in support of the proposition that the control test is not the only relevant consideration. The authority principally relied on is Hollis v Vabu Pty Ltd[2001] HCA 44; , (2001) 207 CLR 21, which was referred to in Hassan's case (supra). The issue in Hollis was whether a company that provided courier services was an employer of a bicycle courier, who owned his own bicycle and wore an uniform bearing the business name of the company. It was held the courier was not acting as an independent functionary.

The cases of Bertram v Armstrong, (1978) 23 ACTR 15 and Sweeney v Boyalan, [2006] HCA 19; (2005-06) 226 CLR 161 referred to, provide a far closer analogy to the case before the court. In Bertram v Armstrong, the fact that the plaintiff was able to choose the manner in which he carried out his work and the times when he did it was held to be indicative of him being an independent contractor. Sweeney v Boyalan held a mechanic, engaged from time to time to perform maintenance work was an independent contractor.

5. Turning to the facts of the present case, in my judgment, the plaintiff is a paradigm case of an independent contractor. He used his own tools and was to bring a helper.
   

There were no features of an employment relationship. The sum he claims was to be paid to him weekly was $80. This figure is approximately 25% less than the weekly earnings paid by the defendant to him in 2005 and the minimum hourly remuneration under the Wages Regulation (Wholesale and Retail Trades) Order 2006 .This tendered against the credibility of his evidence, that he was an employee of the defendant.

I hold the plaintiff was an independent contractor.

A.L.B.Brito-Mutunayagam
Judge

26th September, 2011