Siu Wai Man v. Daisho Microline Ltd

DCEC 1241/2017

[2021] HKDC 372

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1241 OF 2017

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before: Deputy District Judge Tony Ko in Court

Dates of Hearing: 16 and 17 March 2021

Date of Judgment: 1 April 2021

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JUDGMENT

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INTRODUCTION

1.This is an employees’ compensation claim by the applicant against the respondent for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) for injuries allegedly suffered by the applicant at around 5 pm on 6 April 2017 at the main entrance of G/F of Nan Fung Commercial Centre, 19 Lam Lok Street, Kowloon Bay (“Building”).

2.The respondent’s office was situated at Rooms 1601-2 on the 16^th Floor of the Building (“Office”).  According to the applicant:-

(a) The applicant arrived at the Office at about 4:30 pm on 6 April 2017 (Thursday), and was requested to sign a document for the purpose of terminating his employment (“Document”).

(b) The applicant left the Office without signing the Document.  The applicant then took the elevator of the Building to the ground floor of the Building with another staff member of the respondent and walked in the lobby of the Building.

(c) There was a step of around 4-5 inches (“Step”) downwards from the ground floor of the Building to the public pedestrian walk.  I note that it was the unchallenged evidence of the applicant that the Step formed part of the Building, with the same grey marble flooring.

(d) The applicant tripped over the Step and fell to the floor on his left side (“Accident”).  As a result of the Accident, he sustained injuries to his left arm, left shoulder and back.

3.Under s 5(1) ECO:-

“Subject to subsections (2) and (3), 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 in accordance with this Ordinance.”

4.Under s 5(4) ECO:-

“(4) For the purposes of this Ordinance—

(a) 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;

(b) an accident to an employee shall be deemed to arise out of and in the course of his employment, notwithstanding that the employee was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the employee for the purposes of and in connection with his employer’s trade or business…”

5.As Ms Li (counsel for the respondent) confirmed, it is not disputed that the Accident did occur.  It is also not disputed that the applicant was an employee of the respondent, at least up to the morning of 6 April 2017.  What is hotly disputed is whether the plaintiff’s employment was terminated by the respondent in the morning of 6 April 2017, ie before the applicant attended the Office, such that the Accident could not be said to have arisen “out of and in the course of employment”. 

6.Initially, Ms Li confirmed that the respondent was not running an alternative case that the applicant’s employment was terminated at the Office, in the afternoon of 6 April 2017.  However, in closing submissions, Ms Li indicated that the respondent would also rely on the alternative case.  Mr Wong (counsel for the applicant) fairly indicated that he would not object to that.

ISSUES

7.The following issues are to be decided by the court:-

(a) When was the applicant’s employment terminated? 

(b) Whether the Accident arose out of and in the course of the applicant’s employment with the respondent?

(c) What is the appropriate quantum of compensation to be paid under the ECO?

8.These shall be dealt with in turn below.

TERMINATION OF EMPLOYMENT

Parties’ case

9.The issue as to whether the applicant was terminated in the morning or in the afternoon on the day in question is a potentially important one.  This is so because in the latter scenario, the applicant could be considered as having attended the Office while still in the course of employment, and was injured on his way out of the Building.  However, in the former scenario, the applicant could only be said to have attended the Office after the termination of his employment.

10.It is common ground that by an English written employment contract dated 15 September 2015 (“Employment Contract”), the applicant was employed as the respondent’s security manager.  According to the employment contract, the applicant was required to work from Monday to Friday in the respondent’s factories in the PRC from 8:15 am to 5:35 pm.  Free accommodation at the staff dormitory was provided to the applicant in the respondent’s PRC factories.  The plaintiff would usually come back to Hong Kong on Friday nights, and return to the PRC on Sunday nights. 

11.Regarding the termination of employment, Clause 11 of the Employment Contract provides:-

“During your first month of probation period, either you or we could terminate this contract of employment at any time without notice of payment in lieu. Subject to Section 9 & 10 of the Employment Ordinance, either party is required to give notice or payment in lieu of 7 days (during the rest of your probation period) or 1 month (after your probation period) to the other party in order to terminate this contract.”

12.The applicant testified himself and did not call any other witness.  The respondent only called Ms Cheng Yuet Yuen (“Ms Cheng”), its former human resources manager, as a witness.

13.According to Ms Cheng:-

(a) The applicant was assigned to work in the respondent’s factory in Huizhou of the PRC (“Huizhou Factory”) since 15 September 2015.

(b) In the morning of 6 April 2017, Ms Cheng was informed by Mr Li Shoubin (“Mr Li”) and Ms Nong Yuanyuan (“Ms Nong”), who were respectively the person who was in charge of the Huizhou Factory and the human resources manager of the Huizhou Factory with proper authority to terminate the employment of employees of the respondent, that they had terminated the applicant’s employment with immediate effect and with payment to be made in lieu of notice.

(c) Mr Li and Ms Nong further told Ms Cheng that they had already informed the respondent of the decision to terminate earlier that day, that the applicant had already packed up his belongings at the Huizhou Factory and returned all of the respondent’s property, and that the applicant would return to the respondent’s Office later that day to complete the formalities for the termination of employment. 

(d) At around 4:25 pm on 6 April 2017, the applicant arrived at the respondent’s Office.  Ms Cheng then met the applicant in the conference room.  Ms Cheng explained the respondent’s decision to terminate to the applicant, and presented the applicant with two documents.  One was a letter entitled “LAY OFF TERMINATION OF EMPLOYMENT CONTRACT”, on to which the applicant was requested to sign as a formal acknowledgement of the respondent’s decision to terminate (“Termination Letter”).  The other document was a reference letter dated 6 April 2017 (“Reference Letter”) signed by Ms Cheng, recommending the applicant to his prospective employers.

(e) The Termination Letter was dated 6 April 2017 and signed by Ms Cheng for and on behalf of the respondent.  The applicant was requested to sign on the Termination Letter, which provided:-

“This letter confirms our discussion today that due to a recent organizational restructuring exercise, your post is found redundant and your employment with Daisho Microline Limited is terminated effective immediately. Your last/employment working day is 6 April 2017.

Your final settlement will be paid in accordance with the Employment Ordinance and the terms of employment.

Please return all company properties to the Company respectively on your last employment date.

We wish you the best in your future employment.”

(f) Despite Ms Cheng had explained to the applicant in Chinese the contents of the Termination Letter, which was in English, the applicant refused to sign on it, explaining that he could not understand English.

(g) The applicant however took the Reference Letter away with him when he left the Office.  As the applicant appeared to be emotionally unstable, Ms Cheng called for the respondent’s security guard Mr Ng Chung Hing (“Mr Ng”), who escorted the applicant to leave the conference room and the Building.  

(h) A short while after the applicant and Mr Ng left, another security guard of the Building informed Ms Cheng that there had been an accident near the entrance of the Building.  Subsequently, Mr Ng informed Ms Cheng that it was the applicant who was injured.  According to Mr Ng, when they reached the main entrance of the Building, Mr Ng, who was walking in front of the applicant at that time and opening the door, heard a scream behind him.  When Mr Ng turned around to see what had happened, he found that the applicant was already sitting on the floor.  Mr Ng therefore did not actually witness the occurrence of the Accident.

14.According to the applicant:-

(a) On 6 April 2017 at around 10 am, he received Mr Li’s call requesting him to return to the Office in Hong Kong as soon as possible.  The applicant therefor immediately travelled back to Hong Kong, and attended the Office.  That was the first time that the applicant has been to the Office.  He arrived the Office at around 4:30 pm, and had disagreements with Ms Cheng regarding the request to sign on certain documents for the termination of his employment.  Eventually, a male staff of the respondent was called in, and the applicant took away the relevant document without signing them.

(b) The male staff then told the applicant that he would leave together with the applicant as he was going to get off work.  At around 5:00 pm, the male staff and the applicant passed the entrance of the Building, and there was still some 10 feet to walk until they would reach the public pedestrian walk.

(c) When they were about to reach the public pedestrian walk, the male staff was on the right side of the applicant, who uttered threatening words and asked the applicant to sign the Termination Letter.  The applicant turned and responded, whereupon he tripped on the Step as he lost balance on his left foot, causing his left shoulder and waist to hit the ground.  A passer-by made an emergency report, and the applicant was sent to the United Christian Hospital by ambulance.

Legal principles

15.S6 of the Employment Ordinance, Cap 74 (“EO”) provides that, subject to certain exceptions not relevant to the present case:-

“(1) … either party to a contract of employment may at any time terminate the contract by giving to the other party notice, orally or in writing, of his intention to do so.

(2) The length of notice required to terminate a contract of employment shall be –

….

(c) in every other case, the agreed period, but not less than 7 days in the case of a continuous contract.”

16.S7 EO provides that:-

“(1A) Subject to sections 15 [prohibition of termination during employee’s pregnancy] and 33 [termination during sick leave], either party to a contract of employment may at any time terminate the contract without notice by agreeing to pay to the other party –

…

(b) where the length of notice required to terminate period expressed in months, a sum calculated by multiplying the number of months required by the monthly average of the wages earned by the employee during –

(i) the period of 12 months immediately before the date of notification…”

17.The effect of these provisions is that either party to the employment contract may terminate the same unilaterally without requiring the consent of the other.  The words “agreeing to pay to the other party” refer to a termination brought about by either party promising or undertaking to make payment in lieu of notice, without having to secure or wait for the cooperation of the other. See Kao, Lee & Yip (a firm) v Lau Wing & Anor (2008) 11 HKCFAR 576 at paras 15-37. 

Analysis

18.The main difference between the Parties’ respective case is whether the applicant’s employment was terminated by the conversation among Mr Li, Ms Nong and the applicant in the morning of 6 April 2017.

19.In this regard, Mr Li and Ms Nong were not called as the respondent’s witness.  Instead, Ms Cheng, who is currently working freelance and was at the material times up to 31 January 2018 the Human Resources Manager of the respondent, was called to give evidence for the respondent.

20.As Human Resources Manager, Ms Cheng reported directly to the executive director of the respondent. 

21.Ms Cheng explained that Mr Li had already left the employment of the respondent, and could no longer be contacted.  However, Ms Cheng also said that according to her recollection, when her draft witness statement was prepared, Mr Li and Ms Nong were still working for the respondent.  When asked as to why Mr Li and Ms Nong did not make a witness statement for the respondent, Ms Cheng said that was not considered necessary after discussions with the respondent’s legal adviser. 

22.Ms Cheng was also asked as to the details of the contacts that the respondent had attempted to make with Mr Li and Ms Nong.  Ms Cheng, however, was unclear as to the details as it was her secretary who liaised with the staff at the PRC factories, who in turn attempted to contact Mr Li and Ms Nong.  Ms Cheng herself did not personally try to contact Ms Li and Ms Nong.

23.Ms Cheng fairly accepted that the applicant’s attendance at the Office in the afternoon of 6 April 2017 was at the request of the respondent, and for the purpose of completing the formality of the  termination of employment, which was a human resources matter of respondent.

24.It is not disputed that the respondent filed a Form 2 to report the Accident to the Labour Department.  Ms Cheng said that the Form 2 was prepared and signed by her secretary.  The following features of the Form 2 are noteworthy:-

(a) The Labour Department’s receipt stamp appeared thrice on the first page of the document, dated 26 April 2017, 27 April 2017 and 10 May 2017 respectively.

(b) The contents of the Form 2 were originally typeset.  Manuscript additions were later added to the document.  This was confirmed by Ms Cheng, who also said that the manuscript additions were added by her secretary, which she approved before submitting to the Labour Department.

(c) The original typeset words described that the applicant was informed at around 4:30 of the decision to terminate his employment. It also stated that at the time of the Accident, the applicant was no longer the respondent’s employee.  There was however no mention about the fact that the applicant was terminated in the morning of 6 April 2017 at the Huizhou Factory.

(d) The manuscript additions that were added was to the effect that on the date of the Accident, the human resources department of the respondent’s PRC factory had already informed the applicant of the decision to terminate his employment, and requested the applicant to return to the Hong Kong Office and handle the termination procedure.

25.When asked as to the reason why the manuscript additions were inserted, Ms Cheng said that they were added to complete the picture.  Her impression was that the Labour Department required more information, and that was why the new information was added. 

26.Despite the forceful cross-examination of Mr Wong, I do not find Ms Cheng to be a deliberately dishonest witness.  However, on the critical issue as to whether the alleged termination occurred at the Huizhou Factory in the morning of 6 April 2017, not much weight can be placed on Ms Cheng’s evidence. I highlight the following matters in particular:-

(a) Ms Cheng does not have personal knowledge about the conversation in the morning.  Her knowledge as to what transpired amongst Mr Li, Ms Nong and the applicant came only from the telephone conversations that she had with Ms Nong later that day.

(b) Initially, in the morning, Ms Cheng was informed by the respondent’s executive director, Zoe Cheung, about the decision to terminate the employment of the applicant.  Later in the morning, Ms Cheng received a call from Ms Nong, who told Ms Cheng that the applicant had already been informed of the decision to terminate his employment, and that the applicant had already packed up his belongings at the Huizhou Factory and returned all of the respondent’s properties.

(c) According to Ms Cheng’s recollection, Mr Li might have uttered a few sentences in the background during the telephone calls between Ms Cheng and Ms Nong, but Ms Cheng could not be sure about that.  Thus, it is fair to say that Ms Cheng’s understanding came primarily from Ms Nong’s account.

(d) However, according to Ms Cheng’s recollection and understanding, Mr Li was the one who informed the applicant of his termination, although Ms Nong was also involved in the termination of the applicant as human resources manager at the Huizhou Factory.

(e) It is thus not entirely clear whether Ms Nong (the primary person with whom Ms Cheng communicated with) had had personal knowledge of the conversation between Mr Li and the applicant, which according to the applicant’s evidence took place over the phone. 

27.Ms Cheng’s evidence in this regard is to be weighed against the applicant’s own evidence, who was adamant that he had not been informed of the termination of employment in the morning of 6 April 2017. 

28.The respondent submitted that the applicant was not a credible witness. In particular, it was stressed that it did not make sense that the applicant would have attended the Office without first understanding from Mr Li as to the reason why he had to attend the Office, and whether he needed to come back to work at the Huizhou Factory the next day.  

29.However, it is common ground that Mr Li, who was in charge of the Huizhou Factory and the applicant’s superior, had asked the applicant to attend the Office.  I do not consider it unreasonable for the applicant to have followed Mr Li’s instructions without querying the reason behind his request, and without confirming whether he needed to come back to work at the factory on the next day.  If the duty to be performed at the Office required the applicant to stay in Hong Kong the next day, then obviously the applicant would not be expected to go back to work at the Huizhou Factory, and vice versa.

30.Having considered all the evidence and submissions, I find it more likely than not that the applicant was not informed by Mr Li or Ms Nong of the decision to terminate his employment in the morning of 6 April 2017.

31.Firstly, Ms Cheng’s evidence was that the applicant was not carrying any luggage or bag of personal belongings when they met at the Office.  Ms Cheng said that she did not find that surprising, as she had been informed by Ms Nong that the applicant had already “taken care” of packing up his personal belongings.  However, it does seem unlikely for the applicant to be able to pack up in such a short time, return all of the respondent’s properties, and travel back to the Office at Kowloon Bay at around 4:30 pm.

(a) It is not disputed that the conversation between Mr Li and the applicant took place at around 10:00 am in the morning, that is around 6 hours before the applicant arrived at the Office.

(b) According to the evidence of the applicant, it usually takes around 3 hours in total to travel from the Huizhou Factory to Shenzhen by bus, and then from Shenzhen to Hong Kong by train.  The respondent did not suggest the otherwise.

(c) By 6 April 2017, the applicant had already been working at the Huizhou factory and living in the staff quarters 5 days a week for around 1.5 years. Clearing one’s personal belongings in the circumstances would naturally take some time to complete.

(d) The applicant’s home address was stated to be at Chai Wan on the Form 2 (which was not alleged to be inaccurate), and it is inherently unlikely that the applicant would have gone back home and drop off his luggage before attending the Office at Kowloon Bay at around 4:30 pm.

32.Secondly, Ms Cheng’s evidence was that Ms Nong told her that the applicant was calm after being informed of the decision to terminate him.  However, the applicant was un-cooperative at the Office, to an extent that Ms Cheng saw the need to call in the security guard Mr Ng to assist.  The applicant’s reaction at the Office is more consistent with him having been informed of the decision to terminate for the first time.  In particular, no evidence has been adduced to explain why there should have been such a change in Mr Cheng’s attitude, had it been the truth that he was informed of the termination in the morning.

33.Thirdly, the Form 2 submitted by the respondent dated 10 April 2017 (just 4 days after the Accident) did not originally mention about the alleged termination in the morning.  Rather, it stated that the applicant was informed of the decision to terminate at around 4:30 pm.  Ms Cheng’s explanation was that, originally, they only included what had happened in Hong Kong, and not the PRC.  However, if that is so, it is difficult to understand why the respondent saw the need to make the addition in manuscript, which dealt with what happened in the PRC. 

34.Fourthly, despite the explanation by Ms Cheng that Mr Li, Ms Nong and Mr Ng could not be contacted to give evidence, the fact remains that their evidence is not before the court.  What the respondent is left with is the hearsay evidence of Ms Cheng as to the crucial conversation between Mr Li and the applicant, which I found unreliable.

35.Fifthly, the Termination Letter states that the applicant’s employment “is terminated effective immediately”, and makes no reference to the alleged termination in the morning.  Ms Cheng impressed me when she testified in court as someone conversant with the English language.  It seems clear to me that when Ms Cheng prepared the Termination Letter, she did not have in mind the alleged termination in the morning at the Huizhou Factory. 

36.As I find that the applicant was not informed of the termination of his employment contract in the morning of 6 April 2017, his employment was not terminated in the morning.  As Mr Wong fairly accepted, if the employment contract was not terminated in the morning, then it must have been terminated in the Office by virtue of what transpired between Ms Cheng and the applicant.  I so find.

ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT?

Legal principles

37.The Parties have made submissions on a number of authorities on the question of whether an employee, who returned to the employer’s premises after the termination of the employment contract and got injured, could be considered as having been injured in an accident “arising out of and in the course of employment”.

38.In Riley v Holland [1911] 1 KB 1029 CA, the employee, who was employed at the employer’s mill, was discharged on a Wednesday.  By the usual practice of the mill, the wages were made up to Wednesday and were payable at the mill on Friday.  The employee went to the mill on the following Friday and collected her wages and, on going down the stairs of the mill, slipped and was injured.  The English Court of Appeal by a majority (Cozen-Hardy MR and Fletcher Moulton LJ), with Buckley LJ dissenting, held that the accident arose out of the course of employment.  

39.Cozens-Hardy MR said at p 1031:-

“I think it is a fallacy to assume that the “employment” ceases necessarily when actual work ceases. It includes going from the place of work and going to and from the pay office. In the words of Lord Cranworth in Brydon v Stewart [(1885) 2 Macq 30, at p.35] we ought to “take a great latitude in the construction of the phrase ‘being engaged in his employ.’” The contractual obligations of the employers were not terminated or satisfied until the wages due on Wednesday were paid on Friday. Mrs. Riley had not only permission to go to the mill on Friday to receive her wages, but it was her duty towards her employers to go to the mill and not to require them to search her out and pay her elsewhere. Though her employment was at an end on Wednesday night, in the sense that she had ceased to work under the contract, yet the employment continued because of the obligation of the employers to her arising out of the course of the employment and continuing until Friday afternoon …”

40.Fletcher Moulton LJ said at p 1032:-

“In my opinion the employment, though concluded on the Wednesday so far as work in the mill is concerned, implies and includes the visit on the Friday for the purpose of receiving the wages due … seeing that the payment of the wages at such place and time as by settled practice between the employer and the workman have become contractual is part of the contract of service, his going to fetch those wages in accordance with such contractual practice is just as much in the course of the employment as going to or coming from his work …”

41.Buckley LJ took a different view and said at p 1034-1036:-

“… If there be no continuing obligation to serve, no continuing duty to obey, if the whole time of the alleged servant have become at his own disposal, if he be under no obligation to comply further with any order of the alleged master, the employment, I think, has come to an end. If the contract of service provide expressly or by custom that the servant shall during its currency do defined work for a defined time, and shall then do a defined act, e.g., attend at the factory and give up his master’s tools, the employment will continue to exist until the last act contracted to be done has been performed. But when the last obligation of service to be rendered and accepted has been discharged and all that remains is a debt from the master to the servant for the wages of service, employment, I think, is over, and the relation is that of debtor and creditor.

I am unable to agree that for the purposes of the Act employment continues until the wages of past service are paid…Where employment is continuing, or is on the eve of expiration, many acts, such as going to or returning from work, are done int eh course of the employment, and none the less because they are not done in the actual render of service. But where employment is at an end and the final act, such as giving up tools, or leaving the factory, is done, the Act, in my opinion, no longer applies.

… According to the practice which prevailed in the matter of her employment she called on the following Friday to receive her wages. She was under no obligation to go there on that day. She was at liberty to go but owed no duty to go. If she had obtained other employment and had been prevented from going no one could have complained. There would have been no breach of any obligation which she owed to any one…

… Under these circumstances I am of opinion that at the date when this accident happened there did not subsist between the applicant and the respondents the relation whose existence is a condition precedent to liability under the Act …”

42.In M’Garvey and Ors v Caledonia Stevedoring Co, Ltd [1943] 1 All ER 611, a House of Lords decision, the deceased worker was a dock labourer engaged on night shift work.  The shift was divided into two periods, with a supper break in between.  It was the custom in this type of work that, if a workman failed to return after the supper period, the employer might engage a substitution, whereupon the former worker's employment was terminated and he would receive wages for the first half of the shift only.  The deceased was due to return from his supper at 12 midnight but failed to do so, and at 12:10 a.m. a substitute was engaged to take his place.  At 12:20 am, while the deceased was returning for the second half of the shift, he fell off the quay and was drowned.  The deceased’s dependents claimed compensation under the Workmen’s Compensation Act, 1925.

43.The House of Lords held that the deceased’s employment had been terminated at 12:10 a.m., and at the time of the accident at 12:20 am, it could not be said to have arisen in the course of his employment.  In distinguishing Riley, Viscount Simon LC said at 612G-613A:-

“…in default of his appearance, a substitute was engaged. At aobut 12:20 a.m., while still making his way back to the place of work, M.Garvey fell off the quay at about one-third of a mile from the ship and was drowned.

On these facts, the arbitrator found that this unfortunate man’s employment was terminated at 12:20 a.m., and that that the accident at 12:20 a.m. did not arise in the course of his employment. It seems to me impossible to say that these conclusions are wrong in law. The Lord Justice Clerk pints out that at the time of the drowning the man was not returning to work under a current contract of service, but was at best returning to the scene of his previous labours, either in the hope that he would be taken on because no substitute had been engaged in his place, or in the hope that he might persuade any substitute who had been engaged to give way in his favour. If he were to be regarded as employed at 12:20 a.m., then two workmen would be employed on the same individual job, and the respondents would be responsible for accident to either.

The case is essentially different from those in which it has been held that an accident to an employed workman on his way to or from work may, under certain conditions and within certain limits, be regarded as occurring in the course of his employment; here the workman at the critical time was not an employed workman.  Neither is the case analogous to those in which the workman meets with an accident on leaving after dismissal (Sexton v Hosford (1), at p.647), or on going to draw his wages, as the contract of employment contemplated, after his work has ended (Riley v Holland (2)).  It is not necessary for the House in reaching its conclusion to affirm or review earlier decisions.  It is sufficient to say that upon the facts and findings of the present case, the appellants cannot succeed.”

44.In Molloy v South Wales Anthracite Colliery Co (1910) 4 BWCC 65, the manager dismissed the employee, and ordered him to fetch his tools from the mine.  While down in the mine for that purpose the employee was injured by the fall of a stone.  The Deputy County Court judge found that the accident had arisen out of and in the course of the employee’s employment, whose decision was upheld by the English Court of Appeal. 

45.It is noteworthy that, based on the finding of fact that the employee was “ordered” to fetch his tools from the mine, the Court of Appeal found that the accident had arisen out of and in the course of the employee’s employment, despite the fact that the employee only entered into the mine after he was dismissed.

46.In Sexton v Hosford (1916) 9 BWCC 643, the applicant was a baker employed the respondent to take charge of a dough making machine in the respondent’s bakery.  The applicant returned to the bakery after his usual working hours to oil the machine and, whilst doing so, caught several of his fingers in the machine.  The English Court of Appeal held at p.649 that “It was part of is duty to oil the machine.  He selects a reasonable time and place. If these two conditions concur, surely it follows as a matter of course, that the accident happened in the course of his employment…”.

47.In Phillips v Williams (1911) 4 BWCC 143, the employee collier worker, after work on Saturday, found out that his pay was not as he had expected, and went to see the manager.  The manager referred him to the under-manager, who could only be seen the coming Monday.  The employee did not go to work on Monday morning, but went to the mine about mid-day in his Sunday suit, and saw the under-manager.  He said he would not work any longer, unless his pay got rectified.  His demand was refused, and he left, intending to go home.  He was knocked down by a coal wagon and killed before he left the employer’s premises. 

48.The English Court of Appeal (comprising Cozens-Hardy MR, Fletcher Moulton and Buckley LJJ) found for the employer, and held at p.145 that the employee “arrived at mid-day, in his Sunday clothes, to see the under-manager; that he was there in his own interests, and not in those of his master; and it has on this been held that the accident did not arise out of and in the course of the employment.”

49.The following principles can be distilled from these cases:-

(a) The fact that the injury occurred after the employment contract has been terminated does not necessarily mean that the injury did not arise out of and in the course of employment. (Riley)

(b) The question as to whether an injury arose out of and in the course of employment, despite the termination of employment, depends on the facts of each individual case.

(c) For instance, if there is a contractual duty under the employment contract to attend the employer’s premises after the termination of employment (Riley), or if the employee was ordered by the employer to do certain acts after the termination of employment (Molloy), then the injury suffered in the course of fulling such contractual duty or complying with the employer’s order would be held to have arisen out of and in the course of employment.   The same applies to an employee who reasonably attended the employer’s premises outside the usual working hours in order to perform work within the employee’s duty (Sexton).

(d) However, if the employee attended the employer’s premises for his own purposes such as hoping to be re-employed (M’Garvey) or negotiating for a higher pay (Phillips), then the injury suffered in the course of doing so would be held not to have arisen out of and in the course of employment.

50.In Butterworths Hong Kong Employees’ Compensation Law Handbook, 6^th ed (2020) at [5.08], Molloy, Sexton and Phillips were referred to, and the position was summarised as follows:-

“An employee who has to return to his employer’s premises for some legitimate purpose justified by the terms of his employment, is acting within the course of his employment. This is so even though the return be after the termination of his employment.”

51.Despite the principle has been articulated in different ways in the authorities above, the fundamental question is whether the employee was injured while acting in his own interests, or in those of his employer in connection with the employment (Phillips p 145).

52.This is in line with the deeming provision under s 5(4)(b) ECO, which provides:-

“an accident of an employee shall be deemed to arise out of and in the course of his employment, notwithstanding that the employee was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the employee for the purposes of and in connection with his employer’s trade or business…”

Application of the legal principles

53.Given that the employment was not terminated in the morning, and it was upon Mr Li’s instructions that the applicant attended the Office, I find that the applicant went to the Building and the Office in the course of his employment.  The applicant’s employment, however, was terminated in the Office by virtue of what has transpired between Ms Cheng and the applicant.

54.On this basis, the respondent argues that as the Accident occurred when the applicant was leaving the Building, it could not have arisen out of and in the course of employment.

55.I am not persuaded that this argument is correct. As Ms Cheng acknowledged, the applicant was asked by the respondent to attend the Office to sign on the Termination Letter, for the purpose of protecting the respondent’s interest.  Ms Cheng further acknowledge that the signing of the Termination Letter was in connection with the respondent’s trade or business.  In the circumstances, the applicant’s attendance at the Office is deemed to have arisen out of and in the course of employment under s  5(4)(b) ECO.  

56.Applying the analysis in paragraphs 38-51 above, even if the Accident had occurred after the termination of Employment Contract, it would still be considered as having arisen out of and in the course of employment if the employee was attending the employer’s premises at the employer’s request to perform acts related to the employment and, one may add, in the interests of the employer. 

57.It is artificial to suggest that the applicant was acting in the course of employment when he arrived at the Building, but was not when he left it. The only reason why the applicant needed to leave the Building, in the course of which the Accident occurred, was because the applicant had attended the Office in the first place on Mr Li’s instructions.  Further:-

(a) In Ng Oi Wa v Lamp’s Co [1980] HKC 57 at 59F the Court of Appeal held that where an employee makes use of the common parts and services of the building, in order to reach or leave his place of employment, he is acting in the course of his employment while so doing. 

(b) As summarised in Butterworths Hong Kong Employees’ Compensation Law Handbook, 6^th ed (2020) at [5.08]:-

“There must in all cases be an interval of time and space in going to or returning from the scene of work during and in which the employment lasts. The employment of an employee is not limited to the moment when he reaches the place where he is to begin his work and to the moment when he ceases that work. It includes a reasonable interval of time and space: see Gane v Norton Hill Colliery Co [1909] 2 KB 539.”

(c) According to both the applicant and Ms Cheng, the normal way to access and egress from the Building is to take the route that the applicant did on the day of the Accident.   Leaving the Building through the normal route after the meeting with Ms Cheng clearly falls within a reasonable interval of time and space in the present case.   

58.Having considered the evidence and Parties’ submissions, I came to the view that the Accident had arisen out of and in the course of the applicant’s employment with the respondent.  The respondent is therefore liable under the ECO.

QUANTUM

59.The applicant was born on 10 September 1963 and he was 53 years old at the time of the Accident.  The average monthly earning of the applicant was HK$20,000.  The Employees’ Compensation (Ordinary Assessment) Board (“Board”) assessed the applicant’s permanent loss of earning capacity to be 2.5%, as stated in the relevant Form 7 (“Form 7”).

60.Thus, compensation payable under s 9 ECO is HK$20,000 x 2.5% x 72 months = HK$36,000.

61.The applicant was granted sick leave from 6 April 2017 to 25 October 2018, ie 18.63 months.  In the Form 7, the Board assessed the same period of absence from duty was necessary as a result of the applicant’s injury. 

62.Thus, compensation payable under s 10 ECO is HK$20,000 x 18.63 months x 4/5 = HK$298,080.

63.The applicant claims a total amount of HK$6,240 for medical expenses under s 10A ECO.

64.As Ms Li confirmed in her closing submissions, the respondent does not dispute the quantum of the applicant’s claim.  I thus assess the compensation payable to the applicant under the ECO accordingly at HK$340,320 (HK$36,000 + HK$298,080 + HK$ 6,240), plus interest at half Judgment Rate from the date of the Accident (6 April 2017) until judgment and thereafter at Judgment Rate until payment in full.

DISPOSITION

65.For the aforesaid reasons, I hold the respondent liable to pay compensation to the applicant in the sum of HK$340,320, together with interest thereto as indicated in paragraph 64 above.

66.I also make a cost order nisi that the respondent shall pay the applicant’s costs of the action on a party and party basis, to be taxed if not agreed.

Mr Tim Wong, instructed by B Mak & Co, for the applicant

Ms Sara Li, instructed by Chan, Lau & Wai, for the respondent