Lam Min and Others v. Yau on Construction Co

CACV000095/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CIVIL APPEAL No. 95 OF 1981

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Coram: Silke J.A., Garcia and Power JJ.

Date of Judgment: 5th October, 1981.

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JUDGMENT

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Silke J.A. :

1. At the hearing on the 5th October 1981 we allowed the appeal and stated we would hand down our reasons at later stage. This we now do.

2. Lee Chun Wai, a construction worker employed by the Yau On Construction Company, was found to have met her death on the 11th April 1980 through an accident.

3. He had been engaged to work at that which has been called a "remote island", Nga Ying Chau, off Tsing Yee. There is some doubt as to the remoteness of the work site but nothing turns on this as it is accepted that the only access to it was over open water.

4. The employer hired a boat to take the workers to the site each day and the owner of the site also provided a boat for this purpose the two leaving at specified times.

5. At the site there were no facilities for the preparation of lunch. It was customary for the workers to travel to Tsuen Wan on the boat provided by the site owner to have their meal and to return to work by the same means. There was somewhat vague evidence that lunch was brought back by those who went to Tsuen Wan for one or two workers at the site and that workers could go to a nearby village. There was no evidence of any restaurant facilities being available.

6. If a worker remained at work over the lunch period he would be paid overtime, and that period started at 11.45 a.m. in order that the workers could get the boat. The actual lunch hours were noon to 1 p.m. There was no charge for the use of either of the boats at any time.

7. There was evidence that there were privately owned motor boats for hire at a charge of $20 per trip from Nga Ying Chau to Tsuen Wan. There was also evidence that a barge made unscheduled trips from the village near the site, the villagers paying fifty cents and outsiders one or two dollars per trip.

8. The deceased's wage was $80 per day.

9. On the 11th April the deceased, the other site workers and the owner of the construction company took the 11.45 a.m. construction site owner's boat to travel to Tsuen Wan - a total of fifteen or sixteen people.

10. In the course of the journey there was a collision between their boat and a shrimp boat resulting in the sinking of the: workers' boat and the disappearance of Mr. Lee.

11. This gave rise to a claim under the provisions of the Employees' Compensation Ordinance CAP 282 - the Ordinance - and in the course of the resulting trial the judge made a finding that he was satisfied there was sufficient evidence from which death could be inferred. No complaint is made of this. This appeal springs from the findings of the trial judge that, in effect, the accident did not arise out of the employment though he appears to have held that it arose in the course of that employment.

12. In the course of his judgment he cited section 5(6) of the Ordinance and went on to say :

"There is therefore a rebuttable presumption that if the accident arose in the course of the employment it is presumed that it also arose out of that employment. The question is whether the presumption has been rebutted."

13. With respect to him this was not quite the point. The real issue was one of straightforward fact and Mr. Corrigan submits that the proper test is that set out in his second ground of appeal, viz. :

"The test which the learned judge ought to have applied was whether in the circumstances taking the boat was reasonably incidental to the employment and therefore part of the employment itself."

14. Speaking for myself I would prefer if the phrase "incidental to the work" were to be used rather the existing phrase "incidental to the employment" for reasons which will appear later.

15. Conversely Mr. Wally Yeung, who appeared for the Respondent Company at the hearing of the Appeal, seeks to uphold the dismissal of the claim by relying on that which I might call the "duty test" - a test used by the trial judge.

16. The judge placed reliance upon Lo Kwai Chun v. Hong Kong Oxygen & Acetylene Co. Ltd.⁽¹⁾ decided by another division of this Court and by which he felt himself to be bound.

17. That case concerned land transport and the going to and coming from the place of employment before work began and after it ceased.

18. It was held that :-

19. Yang J. (as he then was) in the course of his judgment made reference to the two sea cases - Richards v. Morris⁽²⁾ and Mole v. Wadworth⁽³⁾ - the second, where the only method of getting to and from work was by means of a boat, is the more applicable here on its facts.

20. And at page 423, he had this to say :

21. The implied term and the duty point.

22. But, as Yang J. made clear at page 424 :

"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." (emphasis supplied)

23. Cons J.A. in a separate judgment at p.425 had this to say :

"The law on this question has been laid down by the highest authority. St. Helens Colliery Co. Ltd. v. Hewitson⁽⁴⁾ and Weaver v. Tredegar Iron and Coal Co. Ltd.⁽⁵⁾ We must respect that authority : De Lasala v. De Lasala⁽⁶⁾. Those authorities show, as Lord Denning said in Vandyke v. Fender⁽⁷⁾ :

'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.'"

24. In Vandyke v. Fender⁽⁷⁾, although not a workman's compensation case, the English Court of Appeal had for consideration the phrase "arising out of and in the course of his employment" and, I would emphasize, in the context of going to and coming from work and therefore away from the premises. Prior to Vandyke v. Fender⁽⁷⁾ Lord Denning had - in R. v. Industrial Injuries Commissioner Ex parte Amalgamated Engineering Union⁽⁸⁾ - expressed his "shock" at the decision in Hewitson⁽⁴⁾ but he clearly felt himself, in the circumstances of Vandyke v. Fender⁽⁷⁾, bound by the line of cases of which Hewitson⁽⁴⁾ is one.

25. In Amalgamated Engineering Union⁽⁸⁾ it was laid down that the test whether an employee was acting in the course of his employment was whether what he was doing was something incidental to his contract of service although he might be under no duty to do it. In that case an employee was on his tea break and wishing to smoke overstayed that tea break and while so doing he was injured. The effect of the decision was that the employee had taken himself outside the course of employment by overstaying.

26. Davies L.J. at p.104 said :

"It seems to me, however, that one thing is inescapable : whatever the principle be, consent express or to be implied from all the circumstances, by the employer to the particular activity on which the workman was at the time of his accident engaged is essential."

27. To come back to Lo Kwai Chun⁽¹⁾; Cons J.A. went on at p.426 :

"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 ⁽³⁾. However a public road is perhaps the most common means of access that there is; the employer therefore is not bound to supply transport."

28. The trial judge cited the passage I have just quoted and said of it :

"In my view, the learned Justice of Appeal was not drawing or attempting to draw a distinction between land transport and sea transport ..."

and he thought this evident from an earlier passage in Cons J.A.'s judgment where he quoted a passage from the judgment of Lord Atkinson in Hewitson ⁽⁴⁾.

29. Then the trial judge went on :

"It is clear that this passage of the judgment of Cons J.A. must be qualified and was intended to be qualified by the fact that the employer was only obliged to supply a boat if there was no other means of access."

and he concluded :

"The fact that the transport provided in Lo Kwai Chun's case was a bus and in the present case it was a boat is not a valid distinction and is immaterial."

30. With respect to him we think there is a valid distinction and we doubt if Cons J.A. intended to qualify his statement of the law in quite the manner suggested by the trial judge.

31. As we see it the distinction on their facts as between Lo Kwai Chun⁽¹⁾ and this instant case is three fold : first it was not a going to or coming from work case. It is in the course of the daily work itself and more analogous to the tea break line of cases. Second, the only access was over an open stretch of water; third that the employer either provided, or arranged for the provision of, a boat.

32. Mr. Corrigan placed great reliance upon the decision of the English Court of Appeal in R. v. National Insurance Commissioner Ex parte Michael⁽⁹⁾. This was a case where a police officer played in a football match for his police force on an off duty day. He was injured in the course of it and claimed industrial injury benefit on the basis that the injury arose out of and in the course of his employment.

33. The test was held to be : whether the injury had been suffered in the actual course of the work which the police officer was employed to do or by reason of some event "incidental" to that work but not whether the injury had been suffered whilst doing something "reasonably incidental" to the employment. The Court felt latter phrase was a judicial gloss on the wording of that section of the National Insurance (Industrial Injuries) Act 1965.

34. The statute is different and, while the facts are also different from those here, the words of Roskill L.J. (as he then was) at p.427 are apposite :

"The decisions on the phrase 'in the course of his employment' are legion and we were helpfully referred to a number of them. I propose in this part of the case to refer to only two, both decisions of the House of Lords, Charles R. Davidson & Co. v. M'Robb⁽¹⁰⁾ to which I have already referred and Armstrong, Whitworth & Co. v. Redford⁽¹¹⁾. Each was a majority decision four to one in the former and three to two in the latter. These cases authoritatively decided that the phrase -

'in the course of his employment' does not mean during the currency of the engagement, but means in the course of the work which the workman is employed to do and what is incident to it; and absence on leave for the workman's own purposes is an interruption of the employment'."

35. The quotation is from the headnote to M'Robb⁽¹⁰⁾ of which Lord Finlay said in Redford⁽¹¹⁾ :

"It is therefore now settled that for the purpose of the Act the accident must be in the course of the work or what is incident to it."

36. Roskill L.J. went on :

"The crucial effect of the decisions is, for present purposes, that for an injury to qualify for industrial benefit that injury must have been suffered in the course of the work (my italics) which the injured person is employed to do, or be incidental to that work. It is not enough that the injury should have been suffered during the currency of the employee's contract of service. Nor so far as the adjective 'incidental' is concerned, is it sufficient for the injury to have been suffered in some manner incidental to that contract of service. If the injury is not suffered in the actual course of the work which the employee is engaged to do, it must have at least been suffered by reason of some event incidental to that work (again my italics)."

37. Here on the facts the workman had not interrupted his work, in the sense of the Chief Engineer in M'Robb⁽¹⁰⁾ going ashore for his own purposes. That interruption would have come about at Tsuen Wan. He was going in a boat, necessarily provided by his employer, and with the consent of that employer which boat was arranged to leave the work site at a time earlier than the actual lunch hour to enable him to take his meal during the hours of labour. It was to the employer's advantage to have his workers eat within a period of time which did not unduly delay their tasks. His journey was not an interruption - in the employee smoking in an extended tea break instead of returning to work sence (Amalgamated Engineering Union)⁽⁸⁾ - it was, on the unusual facts here, an event incidental to his work and the facts in Bell v. Sir W.E. Armstrong, Whitworth & Co. Ltd.⁽¹²⁾ upon which Mr. Yeung relied are clearly distinguishable from the present case.

38. We are fortified in coming to our conclusion by the speech of Lord Dunedin in M'Robb⁽¹⁰⁾ at p.321 :

"In my view 'in the course of employment' is a different thing from 'during the period of employment'. It connotes, to my mind, the idea that the workman or servant "(he had in a passage immediately prior to this used the example of a domestic 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 servants, 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."

39. The incidental to the work test is, with respect to Mr. Yeung's strongly argued contractual duty test, we think, the correct one in the circumstances here and the use of the boat comes within the ambit of the test.

40. It follows that, even if there were viable alternatives in the way of transport and, with the greatest respect to the trial judge, we think that neither an ad hoc barge nor a twenty dollar private boat to be viable alternatives for a workman with limited meal hours and at a wage of $80 per day, the accident to the deceased arose out of and was in the course of his employment.

41. We therefore allowed the appeal and gave judgment for the Claimant in the sum of $60,000.

42. As his decision necessarily left some matters undecided we further remitted the matter to the trial judge to determine the dependancy issue and the apportionment issue, and further, to allow him to make such investment orders as he thought fit having so determined.

43. Costs of the Appeal and of the Court below to the Claimant with legal aid taxation in respect of the aided Claimant.

44. There be a stay of 14 days upon the judgment.

Representation:

Corrigan Esq. (Legal Aid Department) for Appellant.

Wally Yeung Esq. (Kwan & Kwan) for Respondent.

(1) [1980] H.K.L.R. 420

(2) [1915] 1 K.B. 221

(3) [1913] Q.B.W.C.L. 129

(4) [1924] A.C. 59

(5) [1940] A.C. 955

(6) [1979] H.K.L.R. 214

(7) [1970] 2 Q.B. 292

(8) [1966] 1 All E.R. 97

(9) [1977] 2 All E.R. 420

(10) [1918] A.C. 304

(11) [1920] A.C. 757

(12) [1919] 12 B.W.C.C. 138