Check Chor Ching v. Wik Far East Ltd.

CACV000043/1991

Employees' compensation - employee injured on public road while walking from one bus to another, butt provided by her employer, on her way home an the end of her day's work - whether accident deemed to have arisen out of and in the course of her employment by virtue of s.5(5A) Of the Employees' Compensation Ordinance, Cap. 282.

BETWEEN

Coram: Fuad, V.-P., Penlington, J.A. & Jones, J.

Date of Hearing: 12 June 1991

Date of Judgment: 12 June 1991

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JUDGMENT

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Fuad, V.-P.:

1. This is an appeal from the decision of Deputy Judge Peter Cheung (as he then was) dated 6th February 1991 whereby he dismissed an application by MadamCheck Chor Ching ("the applicant") for compensation under the Employees' Compensation Ordinance, Cap. 282 ("the Ordinance").

2. The applicant was employed by the respondents, Wik Far East Ltd., at their factory at No.399 Chaiwan Road which is at the junction of that road with San Yip Street. The respondents provided a free bus service for their employees, which they could use if they wished to and from work. One  of their two buses served the Chai Wan area and the other the North Point area.

3. On 8th August 1988 the applicant had worked at the factory from 7 a.m. to 3 p.m. When she finished work, she intended to do some shopping at the market near where she was then living at Shau Kei Wan before going home. She climbed into one of the respondents' buses parked in San Yip Street thinking that it was the one which served the North Point area and would therefore pass Shau Kei Wan.

4. Before the bus started, the applicant realised from what one of her workmates told her that she was on the wrong bus. So she got off the bus and was crossing San Yip Street to get into the other bus belonging to the respondents when she was knocked down by a light goods vehicle. She received head injuries and, sadly, has lost the sight of one of her eyes.

5. The judge was invited by the parties only to decide the issue of the liability of the respondents to pay compensation under the Ordinance.

6. In his full and carefully reasoned judgment, the judge discussed the main submission made by counsel then appearing for the applicant, a submission which is maintained before us by Mr. Rodney Pritchard who now represents her: that she was entitled to compensation under the Ordinance by virtue of what is provided by s.5(5A) of the Ordinance. The subsection is in these terms:

"(5A) Where an accident happens to an employee while he is, with the express or implied permission of his employer, travelling as a passenger by any means of transport to or from his place of work, such accident shall, for the purposes of this Ordinance, be deemed to arise out of and in the course of his employment if at the time of the accident the means of transport is being operated -

7. The judge observed that s.5(5A) had been enacted to overcome the difficulties illustrated by the case of Lo Kwai Chun v. Hong Kong Oxygen & Acetylene Co. Ltd. [1980] HKLR 420 and that its provisions had been closely modelled on s.53 of the Social Security Act of 1975 of the United Kingdom, which he set out. He drew attention to footnote No.4 to para.496 of vol.33 of Halsbury's Laws of England, 4th ed. where, of the U.K. provisions, it is said: "As this is an artificial extension of the course of employment, it must be strictly limited to the circumstances described." This is followed by references to a number of decisions by Social Security Commissioners on the application of those provisions and provisions which were in similar terms in earlier legislation, for example, s.9 of the National Insurance (Industrial Injuries) Act of 1946.

8. The judge also cited the following passage from pp.80-81 of Compensation for Industrial Injury by Richard Lewis, where the learned author said:

"The protection of s.53 only extends to employees 'travelling as a passenger by any vehicle'. This means that the employee must be injured while actually being carried, for in R(I) 67/52 the phrase was taken to exclude injuries which occur as the claimant approaches the transport involved. Thus benefit was refused where the claimant was. injured crossing the road to board the employer's bus in R(I) 79/51, and where the claimant was walking towards one bus having alighted from another in R(I) 48/54."

9. The judge then said that he agreed that s.5(5A) gave an artificial extension to the meaning of the course of employment and that it must be construed narrowly. He held that the subsection would only apply if the applicant had been injured while she was actually being carried in the bus. Since she had not yet boarded it, she could not rely on the deeming provision to say that she was in the course of her employment at the time of the injury. He distinguished two English decisions (Bremme v. Dubery [1964]1 WLR 119 and Murphy v. Verati [19671 1 WLR 641) cited by the applicant's counsel in support of his submission that the word "travel" should be construed liberally. I mention here that in my view the judge was right to conclude that those cases are not in point.

10. The judge then went on to deal with the submission made by counsel for the applicant on the position if she could not rely upon s.5(5A). There is no need for me to go into what the judge said about this part of the argument in view of the fact that Mr. Pritchard has conceded that he would not be able to submit that the appeal should be allowed if s.5 (5A) had not been enacted.

11. Mr. Pritchard, relying on s.19 of the Interpretation and General Clauses Ordinance, invited us to give a liberal interpretation to the words appearing in s.5(5A); otherwise, in his submission, an absurdity would result. He recognised that decisions in the United Kingdom by Commissioners on legislation broadly similar to ours were against him and he took us through the decisions mentioned by the author of Lewis's Compensation for Industrial Injury in the passage cited above.

12. I find one particular case of great assistance. This is case R(I) 48/54 where the facts were that the claimant was travelling home from her place of employment. She was injured while walking a distance of two or three yards from one bus to another; both buses had been provided by her employer. The question which arose was whether whilst changing buses, she was covered by the precursor of s.53 of the Social Security Act of 1975. Reading from paragraphs 3, 4, 5 and 6 of the report, this is what the learned Commissioner said:

"3.     In these circumstances, there is no doubt in my mind' that her claim must fail. I disregard the fact that the claimant had an alternative route home, by using which she need not have approached anywhere near the place of her accident. It was clearly more convenient for her to travel along the route on which she met with her accident; that route was permitted - indeed it was provided - by her employers, and she was entitled to use it. The real question is whether during the period of changing from one bus to the other the claimant is covered by Section 9 of the National Insurance (Industrial Injuries) Act, 1946. In my judgment she was not so covered.

4.     I base my decision on the fact that the accident did not happen to the claimant while she was 'travelling as a passenger by any vehicle', within the meaning of Section 9. It is clear from Decisions R(I) 79/51, R(I) 67/52 and R(I) 1/53 (to which the local appeal tribunal were referred) that Section 9 extends the course of a person's employment to cover the period 'while travelling as a passenger' in his employers' transport (which would no doubt include the act of boarding or alighting), but does not cover the act of walking towards a vehicle for the purpose of boarding it, or indeed of walking away from it after alighting.

5.     The course of the claimant's employment ended when she left her place of work. It is artificially extended by Section 9 to cover an accident happening to her 'while ... travelling as a passenger' in transport provided by the employers. It cannot be further extended to cover an accident which happened to her when she was about to become a passenger.

6.     The local appeal tribunal found in the claimant's favour on the ground that, since her transport was provided by her employers, she is therefore deemed to have been under the control of the employers the whole of the time from leaving [the place where she lived] until her return there'. In taking this view, the tribunal misdirected themselves. The section does not extend the employers' control to the journey for all the purposes of the employment. All that the section says is that an accident happening while an employee is travelling as a passenger shall be deemed to arise out of and in the course of the employment. This is a very different thing from extending the employers' control to the whole journey. And as I have already pointed out, the extension applies not to the whole journey, but only to the period 'while ... travelling as a passenger'".

13. I respectfully adopt this reasoning. In my judgment the learned judge in our case correctly interpreted s.5(5A) of the Ordinance. As a matter of construction I find it impossible to hold that when this unfortunate lady was walking on the road from one bus provided by her employer to another such bus, that the accident happened, in the words of the subsection "while she was travelling as a passenger" on either of the two buses from her place of work.

14. Mr. Pritchard went on to submit that if his arguments on the true construction of that subsection were not accepted, the court should approach the question in this way: the purpose of enacting the new subsection was clearly to equate what he called "permissive" travel with "compulsory"' travel. Although he was unable to find any authority directly in point, he submitted that it must be clear that if an employee were using a public street after leaving the factory on his way to "compulsory" transport he would certainly be in the course of his employment. Since this was so, to rule against compensation for an employee approaching a bus provided by his employer, would be to frustrate the very purpose for which s.5(5A) was inserted, by amendment, into the Ordinance.

15. I am bound to say that I cannot accept that this lady was in the course of her employment at the relevant time. As I have said earlier, the accident did not happen while she was travelling as a passenger on one of the buses provided by her employer and unless s.5(5A) applied, in my judgment she was not as matter of fact or in law in the course of her employment when she was knocked down and injured.

16. This is a most unfortunate case and everyone who knows the facts will have great sympathy for the applicant, but it would not be right to strain the language of s.5(5A) so as to entitle the applicant to compensation which the legislature did not intend her to have by the words that it used.

17. The judge was clearly right and I would, therefore, dismiss the appeal.

Penlington, J.A.:

18. I also agree that this appeal should be dismissed. Mr. Pritchard, in his very attractive and well presented argument, must nevertheless persuade us that the words "travelling as a passenger" in ss.5A of s.5 of the Ordinance bear a meaning which certainly on a plain reading of those words is difficult to reach. In another judgment delivered today I myself was certainly prepared to take a very purposeful approach to the interpretation of this legislation but even bearing in mind the provisions of s.19 of the Interpretation and General Clauses Ordinance, those words cannot in my view be read in the way Mr. Pritchard has suggested they should be.

Jones, J.:

19. I agree with the judgments of my Lords that this appeal should be dismissed.

Representation:

Mr. Rodney Pritchard (D.L.A.) for Applicant/Appellant

Miss Alice Mok (M/s W.K. To & Co.) for Respondent