Lo Kwai Chun v. Hong Kong Oxyagen & Acetylene Co Ltd

Case No.CACV 72/1979[1980] HKLR 420

Court

Court of Appeal

Date13 Jun 1980

Judge—

Case Document

100%Judiciary

CACV000072/1979

[Workmen's compensation - transportation provided by employer - accident on public road.]

IN THE COURT OF APPEAL	1979 No. 72
	(Civil)

BETWEEN
	LO KWAI CHUN, widow, for herself and on behalf of other dependants of CHEUNG HOI, deceased	Appellant
	AND
	HONG KONG OXYGEN & ACETYLENE CO. LTD.	Respondent

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Coram: Cons, J.A., Yang & Bewley, JJ.

Date of Judgment: 13 June 1980

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JUDGMENT

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Yang, J.:

1. This is the appellant's appeal against a district judge's dismissal of her application for compensation under section 5 of the Workmen's Compensation Ordinance.

2. The sole issue that calls for decision in this court is whether or not the traffic accident in which the appellant's husband was killed arose in the course of his employment. It is not in dispute that if the accident arose in the course of the deceased's employment, then by virtue of section 5(b) of the Ordinance, it also arose out of that employment.

3. The deceased was employed by the respondent company at their factory which is about a mile from Clear Water Bay Road. The road leading from the factory premises to Clear Water Bay Road is uphill and only partially lit at night. Though there was a bus service linking that part of Clear Water Bay Road and urban Kowloon at other times of the day, workmen coming off or going on at 11 p.m. were not served by any form of public transport

4. The deceased's shift was from 3 p.m. to 11 p.m. His home was approximately six miles from the factory. The road leading to urban Kowloon was undulating. He did not own a car or motorcycle nor was he licensed to drive either.

5. The respondent employed about 300 male and female workers. At the material time the shifts for male workers were 7 a.m. to 3 p.m., 3 p.m. to 11 p.m., and 11 p.m. to 7 a.m. It will be noted that there was no time gap between shifts. The respondent hired a coach for transporting all their workers free of charge to and from the factory. The coach service had been introduced in 1966, and replaced a ferry service which had been provided when the factory was first established. On the 9th July 1978, after coming off work at 11 p.m., the deceased took the coach and was killed when the coach crashed some five miles from the factory on Clear Water Bay Road. He was 53 years of age when he died.

6. It is clear law that when a workman is injured while travelling to or from work in a vehicle provided by his employers on a public road or outside the work premises he is not "in the course of his employment" unless his terms of employment obliged him to travel in that way (Vandyke v. Fender⁽¹⁾).

7. However, Lord Atkinson, in an obiter dictum in St. Helens Colliery Co. v. Hewitson⁽²⁾, said (at p. 70) :

"	It must, however, be borne in mind that if the physical features of the locality be such that the means of transit offered by the employer are the only means of transit available to transport the workman to his work, there may, in the workman's contract of service, be implied a term that there was an obligation on the employer to provide such means and a reciprocal obligation on the workman to avail himself of them.
	The case of Richards v. Morris [1915] 1 K.B. 221 illustrates well this principle."

8. The judge assumed for the purposes of the application before him that the physical features of the locality were such that the coach service provided by the respondent was the only means of transport available for the deceased workman going to and coming from his work. Following Lord Atkinson, the judge said that, in those circumstances there may, in the deceased's contract of service, be implied a term that there was an obligation on the employer to provide such means of transport and a reciprocal obligation on the workman to avail himself of them. It must however be borne in mind that in the situation described, the employer's obligation to provide transport and the employer's reciprocal duty to use it may be implied. The obligations of employer and employee will not necessarily be implied.

9. The judge did not say whether he thought that the respondent was bound by an implied term to provide coach service, but he was in no doubt that the deceased was under no contractual obligation, express or implied, to use the service.

10. In his submissions on behalf of the appellant, Mr. Bokhary advanced the proposition that if, having regard to the sort of physical features described by Lord Atkinson, a term is implied in the contract of service obliging an employer to provide transport for his workman, then it automatically follows that the workman is under a contractual duty to avail himself of the service. With respect we do not agree. None of the authorities cited before us or in the court below support this view (see Vandyke v. Fender⁽¹⁾). Indeed, Mr. Bokhary at a subsequent stage of his argument had to qualify his proposition by saying that the workman only owes what has been described in argument as an optional duty to use the service provided by the employer, i.e. he is not obliged to avail himself of such service if he has a "viable alternative" which ensures his arriving at work fit and on time. In the first ground of appeal, the workman's duty is stated in these terms :

"A workman is under an obligation to his employer not to refuse transport to and/or from work if, in all the circumstances, such refusal would or would in all probability, over a period of time, render him unfit or less fit than he would otherwise be for his labour."

The workman's duty is therefore seen as a qualified one: he has an option. He may refuse to travel on his employer's coach if his refusal does not render him unfit or less fit for work. His duty to travel on the coach arises only if he does not have a "viable alternative".

11. Several authorities were cited, only one of which appears to support the appellant's case. That authority is Richards v. Morris⁽³⁾, cited by Lord Atkinson in the Hewitson Case. There a workman was employed on an island, and it was part of his contract of service that he should be allowed at reasonable times to cross a channel about a mile wide to visit his wife on the mainland, and that he should be taken across in his employer's boat for that purpose. He met with an accident whilst in the boat on his way home, from the effect of which he died. It was held by the Court of Appeal that the accident arose out of as well as in the course of his employment. However it is not clear from the report whether the workman was under an express obligation to use the boat provided by the employer or whether such an obligation was implied in the terms of his employment.

12. The reported facts of Mole v. Wadworth⁽⁴⁾ are similar to Richards v. Morris. There the workman, whose only method of getting to and from work across the River Wye was by means of a boat supplied by his employer, was drowned after falling from the boat as he was returning at the usual hour. The Court of Appeal followed Cremins v. Guest, Keen & Nettlefolds⁽⁵⁾ and held that the accident arose out of and in the course of the workman's employment. Again it is not clear from the report whether it was part of the workman's duty to use the boat.

13. In the Cremins Case a collier was knocked down and killed while waiting on a platform for the train. The platform was erected by his employers on land belonging to a railway company for the exclusive use of the colliers, and was under the control of the employers. There was an implied term of the contract of service that these trains should be provided by the employers, and that the colliers should have the right, but not the obligation, to travel to and from work without charge. The Court of Appeal held that the accident arose in the course of the employment, which began when the colliers entered the train in the morning and ceased when they left the train in the evening. In overruling the Cremins Case Lord Buckmaster in Hewitson's Case said (at p. 67) -

"it is there stated that the phrase 'in the course of his employment' is satisfied if the workman is in the place where the accident occurred by reason of an implied term of the contract of service that he should have the right, if not the obligation, to use the train. I find it difficult to accept this test. A man entitled by virtue of his contract of service to a holiday and a free ticket will equally be on his journey by virtue of the right obtained by his contract of service. But it seems to me difficult to say that an accident occurring to him in the train must be in the course of his employment."

14. The crucial question in Richards v. Morris was therefore whether there was a term of employment, express or implied, which imposed a duty on the workman to travel by the boat supplied by his employer. The answer cannot be obtained from the reported facts of the case.

15. We do not think Richards v. Morris is authority for the proposition that where there are no other means of transport other than those offered by the employer, the workman is necessarily under a contractual duty to use them. In the present case, however, it seems to us the coach supplied by the respondent was not the only means of transport available to the deceased workman, though admittedly it was for him the only reasonable and practicable mode of transport.

16. We are of the view that the facts of the present case require us to determine whether the deceased workman was under a duty to use the coach supplied by the respondent for his benefit. By the first ground of appeal referred to earlier, the appellant does not claim that the workman had an absolute duty to use the transport provided. The appellant's case is that he was under a duty to use it only if his refusal to use it might render him unfit for work. The question then arises as to whether such a duty is in reality a duty to arrive fit for work and not a duty to arrive by a particular mode of transport.

17. The circumstances of this case may best be tested by asking whether the workman would have committed a breach of his contract of service if he took a lift offered by a friend, either on odd occasions or over a prolonged period of time. Even by the appellant's argument, he would not, for he would then be taking advantage of a "viable alternative".

18. The implied term sought by the appellant has, in our judgment, nothing to do with the deceased workman's work, and in any event is so uncertain in its concept that the only conclusion that can be drawn from the facts of this case is that there was no duty upon the deceased workman to use the coach provided by the respondent company.

19. The matter was explained by Lord Romer in Weaver v. Tredegar Iron & Coal Co., Ltd.⁽⁶⁾ (at pp. 986-7) :

	"The truth of the matter is that in all these cases of a workman going to or leaving the scene of his labours, the necessity of deciding the question whether, at the time of the accident, the workman is acting in pursuance of a duty that he owes his employer, i.e., is performing some contractual obligation towards his employer, only arises when the workman at that time has left or has not yet reached, as the case may be, the scene of his labours or 'the means of access thereto.' If the maidservant in Lord Macmillan's illustration meets with an accident before she has reached the public highway, she may in a proper case recover compensation, even though she is leaving her employer's premises because it is her night out. She is engaged in doing something that is merely incidental to her employment proper. She will not be refused compensation merely because she owes no duty to her employer to go out. But if the accident happens after she has reached the public highway the question at once arises whether she is there in performance of her duty to her employer such as posting his letters or doing some shopping on his behalf.
	Now an employee after he has left the scene of his labours and 'the means of access thereto' may find himself upon a highway or a public railway station. He will by then have fully performed the act of going home that is incidental to his employment. Whatever he does thereafter whether on foot, or by omnibus, or by train, he does in virtue of his status as a member of the public and not in virtue of his status as an employee. But suppose that when continuing his journey home he makes use of the highway or the railway not by travelling in a conveyance available to the public at large but in a conveyance that is only available to him in virtue of his status as an employee. In such a case is he still performing the act of getting home that is incidental to his employment? In view of Hewitson's case, the question must be answered in the negative."

20. The next ground of appeal is that workmen of the respondent company were under a contractual obligation, implied in the terms of their employment, to avail themselves of the coach service provided, because, it is submitted that the workmen had the duty to change shifts as efficiently as possible, and the respondent company as employers had the right to facilitate such changes of shifts by the provision of a coach service. If workmen at the respondent factory resorted to whatever transport they chose rather than the coach service provided considerable congestion in and outside the factory at each change of shift would have been the likely result, particularly having regard to the lack of any time gap between shifts.

21. Our view on this ground of appeal is that there is nothing in the facts of the case to indicate that chaos would necessarily or even probably be the result if some of the workmen did not use the transport facilities provided. Counsel for the respondent conceded that if a hundred private cars were to descend on the factory premises during the change of any one shift, chaos would ensue. This is however far from saying that the result would be the same if workmen arrived at the factory by other means of transport.

22. The circumstances in which a term may be implied in a contract are governed by the well-known "officious by-stander's" test, settled in a long line of authorities starting with The Moorcock⁽⁷⁾. In our judgment the present case does not satisfy that test.

23. Appeal dismissed.

Cons, J.A.:

24. I agree that the appeal should be dismissed. However, as the general principle involved is one of some importance I would like to add a few words of my own.

25. The law on this question has been laid down by the highest authority: St. Helens Colliery Co., Ltd. v. Hewitson and Weaver v. Tredegar Iron and Coal Co., Ltd. We must respect that authority: De Lasala v. De Lasala⁽⁸⁾. Those authorities show, as Lord Denning said in Vandyke v. Fender⁽¹⁾ :

"quite conclusively, that when a man is going to or coming from work, along a public road, as a passenger in a vehicle provided by his employer, he is not then in the course of his employment - unless he is obliged by the terms of his employment to travel in that vehicle. It is not enough that he should have the right to travel in the vehicle, or be permitted to travel in it. He must have an obligation to travel in it. Else he is not in the course of his employment."

In Hewitson Lord Atkinson suggested circumstances in which that obligation would be implied by the law (at p. 70). They were that the physical features of the locality were such that the means of transit offered by the employer were the only means of transit available to transport the workman to his work. He indicated Richards v. Morris as a good illustration. That is the case where a workman was employed on an island and had a right to visit his wife on the mainland from time to time. He was taken there in his employer's boat.

26. With the very greatest respect, it is not easy to believe that the workman was obliged to use that boat. It would seem likely that if the opportunity arose he could, without breach of contract, have accepted e.g. a passage from a passing fisherman.

27. The key to the decision is perhaps to be found in a later remark of Lord Atkinson (at p. 78) when referring to evidence in the case before him. He said :

"if that were substantially all that occurred and the train was not, as was the boat in Richards v. Morris [1915] 1 K.B. 221, the only means by which these colliers could gain access to the colliery, ....."

The words I have emphasized are echoed by Lord Romer in Weaver v. Tredegar Iron and Coal Co., Ltd. in the passage quoted by my brother Yang.

28. The law thus seems to be this, that where there are no normal means of access to the place of work, the employer is bound to supply some, and the workman making use of that means is within the course of his employment. Thus an open stretch of water is not a normal means of access; the employer must supply a boat, as he did in Mole v. Wadworth. However, a public road is perhaps the most common means of access that there is; the employer therefore is not bound to supply transport.

29. It is immaterial that the public road be long or short, well or poorly lit, or provided or not with public transport so long as it is a means of access. It does not follow, of course, that the workman must always use his own two feet. An out of the way employer is unlikely to find a labour force if he does not provide transport of some kind. However, if the worker is injured or killed when making use of that transport he is not in the course of his employment as that phrase is used in the Workmen's Compensation Ordinance. He or his widow must look to the other remedies which the law supplies. If this conclusion "sounds discordantly narrow to modernears"⁽⁹⁾, a change must be sought by legislation. There is good precedent in the United Kingdom: section 9(1), National Insurance (Industrial Injuries) Act, 1946. It is too late for the courts to intervene.

Mr. Bokhary (D.L.A.) for Appellant.

Mr. Charles Ching, Q.C. & Mr. Lester Kwok (J.S.M.) for Respondent.

Bewley, J. :

30. I agree.

Representation:

Mr. Bokhary (D.L.A.) for Appellant.

Mr. Charles Ching, Q.C. & Mr. Lester Kwok (J.S.M.) for Respondent.

(1) [1970] 2 Q.B. 292

(2) [1924] A.C. 59

(1) [1970] 2 Q.B. 292, 305 B, per Denning M.R.

(3) [1915] 1 K.B. 221

(4) [1913] Q.B.W.C.C. 129