Tsang Yuk-chung and Others v. China Fleet Club-royal Navy Restaurant Caterer Overseas Assurance Corp Ltd

DCEC000092/1972

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 92 OF 1972

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Coram: Bewley, D.J. in Court.

Date of Judgment:17th February 1973.

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JUDGMENT

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1. This is a claim for workmen's compensation in which the sole issue is "Did the accident arise out of and in the course of the deceased's employment?"

2. The deceased was employed as a cook at the China Fleet Club and the evidence shows that he met his death as a result of a knife attack by a fellow cook in the club kitchen. This was clearly no accident in the usual sense of the word but Miss Smith, who appears for the applicant, has drawn my attention to Lord McNaughten's definition of "accident" in Fenton v. J. Thorley & Co. Ltd.⁽¹⁾ as a "mishap or untoward event not expected or designed". Although the attack was presumably intended by the other cook, it was obviously not expected or designed by the unfortunate deceased and was therefore an accident within the meaning of the Ordinance.

3. The incident took place at the deceased's place of employment during working hours and was accordingly in the course of his employment. But did it arise out of his employment? Section 5(6) of the Workmen's Compensation Ordinance provides:

"For the purposes of this Ordinance an accident arising in the course of a workman's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment."

4. Evidence to the contrary, amounting to less than proof, would take the case out of this section and the applicant would be left with the burden of proving that the accident arose out of the deceased's employment. R. v. National Insurance (Industrial Injuries) Commissioner, Ex Parte Richardson⁽²⁾. In that case a bus conductor was attacked on the platform of his bus by a gang of youths who jumped onto the platform of the bus and kicked him in the stomach. Although he was carrying a satchel of money he was not robbed, but there was evidence that these youths had been attacking other people in the street. The Commissioner held that, as the youths had been attacking other people, the attack was made on the conductor as a person in the street rather than by reason of any particular circumstance connected with his employment.

5. In the present case such additional evidence does not exist and the proved facts give rise to conflicting inferences of equal probability. The first indication that anything was amiss in the kitchen was the sound of swearing by the other cook, Lai Ming, followed by loud noises, which a witness described as sounding like an attempt to kill a mouse. When the witnesses entered the kitchen they saw the deceased on the ground being struck repeatedly by Lai Ming. There was no evidence of any prior dispute or bad feeling between the two men. The only other evidence was that work was slack that day as there were no ships in harbour.

6. Choosing between on inference that the attack arose out of a private dispute and an inference that it arose out of a dispute about cooking or some other matter connected with the deceased's work would be nothing more than a guess. I cannot say that there is evidence of the former which I could leave to a jury. The presumption therefore arises and the accident is deemed to have arisen out of the deceased's employment.

7. There will be judgment for the applicant. Compensation is assessed and awarded in the sum of $27,000 (being $750 x 36) to the applicant for the benefit of herself and the dependants of the deceased. Payment into Court within 7 days. Liberty to apply. Costs on Scale V to be taxed under Legal Aid Regulations.

Representation:

Miss Smith of Gordon Hampton & Winter for applicant.

Mr. Tso of Tso & Co. for respondent.

Mr. Smith of Deacons for co-respondent.

(1) 1903 A.C. 443

(2) 1958 2 A.E.R. 689