Lau Ying v. The Hong Kong Association for The Mentally Handicapped

CACV000085/1983

BETWEEN:

Coram: Roberts, C.J., Cons & Barker, JJ.A.

Date: 11th October, 1983.

----------------

JUDGMENT

----------------

Roberts, C.J. -

1. This is an appeal from an award of compensation under the Employees Compensation Ordinance, to the applicant, Mrs. LAU Ying, mother of LEE Sheung Man ("the deceased") against the Hong Kong Association for the Mentally Handicapped ("the Association").

2. The facts, out of which the claim under the Employees Compensation Ordinance arose, can be summarized as follows.

3. The deceased was employed by the association as a house-parent. Among the duties allotted on a roster system to house-parents was that of collecting handicapped children, who were inmates at the Association's training centre near Tai Po, at the end of their weekend holiday at home.

4. The house-parents to whom this task was allotted were supposed to assemble the children at the Jordan Road Bus Terminus, supervise their boarding of a bus to take them from Jordan Ferry to Tai Po, watch over their safety and conduct during the journey, get them from that bus to another bus in Tai Po and escort them on the latter bus to the centre. Thereafter, there were other duties imposed on a house-parent at the training centre later in the evening.

5. On 3rd January, 1982, the deceased had been required to attend at the Jordan Road bus stop to assist the children to board the No. 70 bus, which was due to leave for Tai Po at 4 o'clock. The deceased, however, was late, and about 4.05 p.m. the other house-parent, Miss LEE Yuet-sheung, with whom the deceased was to share the supervisory duty, decided that she could wait no longer and ordered the children to enter the next No. 70 bus.

6. Miss Lee positioned herself at the end of the queue, 3n order to supervise the boarding of the bus by the children. As she did so, she saw the deceased at the rear of the bus, shaking hands with a guardian of one of the children. He then walked up to her and told her that he could not take the bus with the children, since he had driven his own car there.

7. It is uncertain, and is not in my view material, as to whether he said this was because he had had private affairs to attend to earlier that day, or because he had private affairs to which he would now have to give his attention.. According to Miss Lee, however, Lee did say that he would have to drive his car back to the centre, and could not take his place in the bus with the children.

8. The No. 70 bus, carrying Miss LEE and the children, arrived at Tai Po at 5 o'clock; at about the same time the deceased was killed in a motor accident which took place about three miles south of Tai Po.

9. The question which the judge had to decide was whether it had been established that the death of the applicant had occurred, in the words of section 5(1) of the Employees Compensation Ordinance -

"by accident arising out of and in the course of the employment".

10. He reached the conclusion that the deceased had assisted in the supervision of the children as they boarded the No. 70 bus at Jordan Road. The evidence upon which he came to this conclusion is, to put it at its highest, thoroughly inconclusive.

11. He then found that the applicant, having commenced his duty by this supervision of the children's boarding of the bus, had continued that task, "by driving his car in the same route, though far behind that bus".

12. Even assuming that the judge was right in concluding that the evidence was sufficient to justify him in finding that the deceased had begun his duty, I cannot see how he could properly have come to the conclusion that the deceased was still acting in the course of his employment when he was killed in his motorcar some miles behind the bus in which, by the terms of his instructions, he was supposed to be.

13. It was argued, on behalf of the respondent, that because he had begun his duties at the Ferry, and because he was driving to the centre to continue them, that what happened in between must also have been found to have occurred in the course of his employment and to have arisen out of it.

14. I cannot see that this is right. If a person is employed to carry out a number of distinct duties and performs, for example, the first and third of them and, instead of performing the second, carries out acts for his own purposes which are quite separate from the performance of that second duty, I do not think that he can be said to be acting in the course of his employment.

15. It might, but for the authorites, have been argued that, if he was driving to the centre to     perform his proper duties, this was sufficient. However, it is well settled that an employee is not acting in the course of his employment while he is on his way to work or on his way home at the conclusion of his day's duties. Similarly, if an employee goes to work in the morning, performs part of his day's duties, leaves his work place for lunch and is killed on his way back to work after lunch, this would not be in the course of his employment. Reading the evidence at its highest in favour of the deceased, he had performed part of his duties, had then failed to perform the next part, and was on his way to perform a later part. Nobody had instructed him to drive a car; he was doing this, whether or not his other engagements were before or after he went to Jordan Road, wholly for his own purposes.

16. I would therefore find that this accident did not arise out of and in the course of the employment of the deceased, and that his claim under the Employees Compensation Ordinance must fail.

17. I would allow the appeal.

Cons, J.A. -

18. I agree with the observations of My Lord and would also allow the appeal.

Barker, J.A. -

19. I agree, and there is nothing I can usefully add.

Representation:

Miss Alice Mok (D.L.A.) for Applicant/Respondent

M. Bunting (Denton, Hall & Burgin) for Respondent/Appellant.