Ma Kit Ching Veronica v. Attorney General

CACV000064/1983

Headnote

BETWEEN

Coram: Hon. Huggins, V.-P. Cons & Fuad, JJ. A.

Dates of Hearing: 1st, 2nd November, 1983.

Date of Judgment: 2nd November, 1983.

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JUDGMENT

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Cons, J.A.:

1. This is an appeal from the dismissal of a widow's claim under the Employees Compensation Ordinance. The essential facts are succinctly expressed by the learned Deputy Judge below:

"This case concerns a fatal accident to Mr. Anson CHE Tak-ying, an officer of the ICAC, who died in a guesthouse in Edinburgh, some time between 11 p.m. on 11th February and 10:30 a.m. on 12th February 1982. The cause of death was acute carbon monoxide poisoning due to a blocked flue behind the gas fire in his bedroom. The reason for his being in the United Kingdom at that time was that he was fulfilling a programme of duty attachments and training courses arranged for him by the ICAC. He had been nominated for this course, and had agreed to go, although not obliged to do so, and it is agreed that the programme was undertaken for the purposes of and in connection with his employment with the ICAC. At the time of his death he had just completed one duty attachment in Manchester, on the morning of 11th February, and he was due to commence another attachment at 10:30 a.m. on 12th February in Edinburgh."

I may add that Mr. Che was entitled to a subsistence allowance towards the cost of his accommodation and that he was most probably already asleep in that accommodation at the time he died.

2. The proceedings raise two question. The first is whether Mr. Che was, at the time of his death, in the course of his employment. The second is whether the ordinance has any application at all in the particular circumstances.

3. Mr. Neoh has presented his argument in a variety of attractive guises, but I think it fair to say that all are variations on an original theme, namely, that where a person is required by the terms of his employment to be, for a limited period of time, in a place or places away from his natural home environment, so that he has to lodge in hotels or other accommodation, then, unless he sets out on a personal frolic of his own, that is to say, on something unnecessary to what he is reasonably expected or authorized to do, it follows that at all times within that limited period, whatever he is doing, eating or sleeping or anything else, he is within the course of his employment. Mr. Neoh seeks to equate the position of such an employee with that of the domestic servant referred to in the well known speech of Lord Dunedin in Davidson v. M'Robb⁽¹⁾, where, referring to the phrase "in the course of employment" he said :

"It connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work - e.g. in the workman's case the taking of meals during the hours of labour; in the servant's, not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master's roof."

The one, as Mr. Neoh graphically puts it, is as much the prisoner of his employment as the other is a prisoner in his master's house.

4. It seems that the argument would be received with favour in the State of New South Wales and in some jurisdictions of the United States of America. In Baudoeuf v. Department of Main Roads ⁽²⁾, from the Court of Appeal, New South Wales, a chainman, who was engaged to survey rough country, in order to be reasonably close to his employment had booked into a nearby hotel, for which his employers were willing to bear the cost. He was injured when taking a shower in the hotel. The court upheld an award in his favour. A good example from America is Martin v. Georgia Pacific Corporation⁽³⁾, a decision of the Court of Appeal of North Carolina, upholding an award to an employee killed when walking out to have a meal. Mr. Neoh adopted as epitomizing his own argument the comments of Chief Justice Mallard :

"While lodging in a hotel or preparing to eat, or while going to or returning from a meal, he is performing an act incident to his employment, unless he steps aside from his employment for personal reasons. Such an employee is in continuous employment, day and night. This does not mean that he cannot step aside from his employment for personal reasons, or reasons in no way connected with his employment, just as might an ordinary employee working on a schedule of hours at a fixed location. He might rob a bank; he might attend a dance; or he might engage in other activities equally conceivable for his own pleasure and gratification, and ordinarily none of these acts would be beneficial or incidental to his employment and would constitute a stepping aside from the employment."

5. However, in my view, the rocks on which that argument must inevitably founder in this jurisdiction are the two House of Lords’ decisions of the London & North Eastern Railway v. Brentnall ⁽⁴⁾ and Alderman v. Great Western Railway Co.⁽⁵⁾.  Both were concerned with railway employees who, having taken a train from one place to another, were obliged to remain in that other place until it was time to take the train back again. Alderman was a ticket collector working out of Oxford. When his train reached Swansea he would sign off and would then be free to do as he pleased until the following morning. He was also free to lodge where he pleased, receiving an agreed allowance. He was injured when returning from his accommodation to the station. That was not accepted as being in the course of his employment.

6. It was the freedom to go where he pleased and do what he pleased which distinguished his case from that of Brentnall, who was an engine driver in the Sheffield area. During the intervals between his trains Brentnall was not only required to go and stay at the hostel provided by the railway company but also, while he was there, to take proper rest. He was injured when inside the hostel premises and that was held to be still within the course of his employment, because as Lord Russell put it in Alderman's case, he was under "the contractual obligation to go to the particular place where the accident happened".

7. Mr. Neoh seeks to distinguish these cases as "duty eases", a special class of case limited to those where there is an interruption, a distinct break in the employment, evidenced in the case of Alderman, he says, by his signing off one evening and signing on again the following morning. Mr. Neoh suggests that the case might well have been differently decided had Alderman been a more senior employee who was not required to put his name in the book each day.

8. With every respect I do not think that would have been so. For myself I find it impossible to recognize any distinction. It is in each case not a question of "interrupting" the employment, which is an appropriate approach to a happening such as a tea or meal break, but simply whether the employment continues to run its course. In Brentnall it did, for the driver was doing something incidental to the discharge of express orders. In Alderman it did not. His employer was in no way concerned with what he was doing at that particular moment. It seems to me immaterial whether the lack of concern is expressly indicated by rules as to signing on or off or is otherwise the natural and inevitable inference from the particular circumstances. It is conceded that in the present case Mr. Che was not on duty 24 hours a day while he was in the United Kingdom. His schedule of appointments indicates that he was required to present himself at his employer's office in Manchester on one day and then at 10:30 the following morning at Hobart House in Edinburgh. His employer clearly accepted that he must travel between the two cities and in so doing, by whatever proper method he should choose, Mr. Che would in my judgment have undoubtedly been in the course of his employment. But further than that his employer as not concerned with how he disported himself and did not require that in the interim he should have been at any particular place at all. Indeed, he had chosen to stay in accommodation other than that originally booked for him. For this reason I am of the opinion that the Deputy Judge was correct in the conclusion he reached on this aspect of the case and I would dismiss the appeals.

9. I turn then to the second question, which is raised by the Respondent's Notice. It is submitted on behalf of the Attorney General, who represents the employer of Mr. Che, that the Employees Compensation Ordinance has no application whatsoever to accidents occurring overseas other than to accidents which may occur on board Hong Kong ships or, in certain circumstances, to the Hong Kong crew of a foreign ship.

10. That was certainly the view taken by the English Court of Appeal upon comparable legislation in 1909 in Tomalin v. S. Pearson & Son Ltd. ⁽⁶⁾ and again in 1912 in Schwartz v. The India Rubber, Gutter Percha and Telegraph Works Co., Ltd.⁽⁷⁾. The decision in Tomalin was strongly criticized by two judges of the Irish Supreme Court in 1934 in Keegan v. Dawson⁽⁸⁾.   But that criticism was cogently rejected by Chief Justice Latham in the Australian case of Mynott v. Barnard⁽⁹⁾, in which the majority of the judges approved Tomalin. Of the two who did not Rich J., with respect, leaves some uncertainty as to the true grounds of his decision. Dixon J., as he then was, appears to accept what is now the submission of Mr. Neoh, i.e. the criterion for the court to make an award in any particular case does not depend upon the locality of the accident but upon whether or not the accident occurs in the course of an employment that is substantially or essentially performed in Hong Kong and is an employment between parties ordinarily resident here. If that criterion be satisfied, argues Mr. Neoh, then it matters not that the accident actually occurs while the employee is on temporary duty beyond the jurisdiction.

11. Were the matter free from authority I think there would be a great deal to be said for that as the correct interpretation of Section 5. Although there is a presumption that a legislature does not design its statutes to operate on its subjects beyond its territorial jurisdiction, that is only a presumption. And it would seem harsh, for example, that the widow and children of a messenger boy, regularly employed in Hong Kong, but killed in Macao when sent one day to carry a message there, should not receive the compensation that they would have done had he been killed while performing a similar errand in Central.

12. Again Mr. Neoh would seem to be able to draw comfort from cases in the American jurisdictions, cases which he says go even further than the interpretation he contends for. But we are not part of those American jurisdictions, and we have authorities that are more directly applicable. Tomalin is such a one, very respected and unchallenged in the United Kingdom. Even if the apparent approval given to it by the Privy Council in Krzus v. The Crow's Nest Pass Coal Co. Ltd.⁽¹⁰⁾ can be explained away as Mr. Neoh seeks, which for myself I respectfully doubt, certainly none of their Lordships thought fit to criticize the very clear reasons given in the judgments of Cozens-Hardy M. R. and Fletcher Moulton L. J.

13. When the predecessor of the Employees Compensation Ordinance, i.e. the Workmen's Compensation Ordinance, was first enacted here in 1953, Tomalin had stood for over 40 years and the legislature here adopted in Section 5 the identical words that had been construed in that case. For my part I find it impossible to believe that the legislature should then have intended those words to bear a wider meaning than was given to them in Tomalin.

14. There are indications in the Ordinance itself which tend to confirm my conclusion There was much argument on Section 29 both below and before us. That is the section which applies, generally speaking, to seaman. Taken broadly, by which I mean to exclude the words "who are employees within the meaning of this Ordinance" in the opening part, it does not take us any further. Even if Mr. Neoh's interpretation be correct some special provision would be necessary for seaman, for the bulk of their employment would, in normal cases, be performed outside Hong Kong. However when one looks at the excluded words themselves, they do not sit comfortably with that interpretation.

15. I do not draw very much assistance from Section 25 which relates to what might be called "the third party rights" of the employer, for, as Mr. Neoh observes, the ordinance itself is basically for the protection of the workman, and if by a perhaps unconsidered side wind it imposes some disadvantage upon the employer or confers a double benefit upon the employee, that should not discourage us.

16. I draw no assistance from Part IV, that part which deals with compulsory insurance. Insofar as it obliges the employer to take out insurance covering his liability under the ordinance then, with respect, it begs the very question we have to answer.

17. Section 30 is a section of some importance. It provides that an employer who employs Hong Kong crew on a foreign ship may submit to the jurisdiction of the courts of Hong Kong and that "notwithstanding that the accident causing the personal injury occurred outside Hong Kong" the ordinance shall then apply. It seems to me that the natural inference to be drawn from the inclusion of those particular words is that otherwise it would not.

18. Then we have the sections which provide for the recovery of medical expenses, which by reason of the definitions of "medical expenses", "medical practitioner", "medical treatment" and "hospital" are limited in fact to expenses incurred in Hong Kong. The Ordinary Assessment Boards are likewise Hong Kong institutions. These matters are not conclusive, for the ordinance would still be workable in the case of an accident occurring abroad, even though the workman might not receive the same benefit as one injured in Hong Kong. But it does seem to me unlikely that the legislature would have so limited those provisions to Hong Kong if it had intended the ordinance to have a wider effect.

19. The same comment may be made with regard to the suggestion that by the sweeping amendments made in 1980, when even the very name of the ordinance was changed, the legislature intended to enlarge its territorial as well as its social ambit. I can readily appreciate that the new range of employee now embraced within the ordinance is more likely to be sent abroad from time to time than the more restricted classes that were previously included. But again it seems to me that if the legislature had intended to cover that part of their employment as well, it would have made the appropriate amendments to the sections for the recovery of medical expenses and made some provision for the assessment of injuries received abroad.

20. For these reasons were I not for dismissing the appeal, I would allow the cross-appeal.

Huggins, V.-P.,

21. I also would dismiss the appeal and for the reasons which Cons, J. A. has given.

22. As to the Respondent's Notice, Mr. Neoh mounted a very attractive argument to support the decision of the trial judge that there was jurisdiction to grant compensation in respect of accidents abroad. Much of the argument was based upon decisions in the United States of America and I confess that I found a great deal of common sense in some of those decisions. However, I do not feel able to accede to his argument because of the English cases which have been cited before US. In my view, Tomalin v Pearson & Son Ltd.⁽⁶⁾ has received the seal of approval of the Privy Council in Krzus v Crow's Nest Pass Coal Co. Ltd.⁽¹⁰⁾ and it seems to me that the principle there applied is directly in point here. Mr. Neoh sought to distinguish that case on the ground that the whole of the work which was there contemplated by the contract of employment was to be performed in Malta, or so it would seem from the report. He pointed out that the visit made by the Deceased in the present case to the United Kingdom was only an incident of the general terms of employment in Hong Kong. That was a distinction which might have had greater force if it were not for the fact, as pointed out by Mr. Kaplan, that counsel for the respondent in Tomalin expressly put before the Court of Appeal the case of the chauffeur engaged in England who went abroad with his master and there met with an accident, and he asked if he, too, were to lose the statutory right. I think that there is an implicit answer in the judgment of the court, "Yes". That being so I am satisfied that the point taken in the Respondent's Notice is a valid one and I also would have allowed the cross-appeal, if the appeal had been successful on the first point.

Fuad, J.A.:

23. On both the issues that are before us, I respectfully agree with the reasoning of my brothers and with the orders they propose.

(1)    [1918] A. C. 304 at 321

(2)    (1968) 68 S. R., (N. S. W.) 406

(3)    (1969) 167, South Eastern Reporter, 2d Series 790

(4)    [1933] A. C. 489

(5)    [1937] A. C. 454

(6)    [1909] 2 K. B. 61

(7)   [1912] 2 K. B. 299

(8)   (1934) I. R. 232

(9)    (1939) 62 C. L. R. 68

(10)    [1912] A. C. 590

Representation:

Mr. A. Neoh (M/S P.H. Sin & Co.) for Appellant.

Mr. N. Kaplan, Q.C. & T. H. Kwan, Crown Counsel for Respondent.