Lo Kwai-chun v. Hong Kong Oxygen & Acetylene Co, Ltd

DCEC000018/1979

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 18 OF 1979

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In the matter of an Application between:

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Coram: A. J. Leathlean, D. J.

Date of Judgment: 1 September 1979

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JUDGMENT

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1. In this application for workmen's compensation the following facts are agreed:

2. The only issue which I have to resolve is whether the accident in which the workman lost his life arose out of and in the course of his employment by the respondent. Of course, if it arose in the course of such employment there is a rebuttable presumption that it also arose out of that employment: sub-section (6) of section 5 of the Workmen's Compensation Ordinance. Suffice it to say that assuming that the accident arose in the course of the deceased workman's employment by the respondent I do not think that the presumption that it also arose out of that employment has been rebutted in this case.

3. Any doubts which may have grown up over the years before 1970 as to the law governing circumstances such as those which obtain in this case were resolved in that year by the Court of Appeal in England in Vandyke v. Fender and another⁽¹⁾, in which the Court held, following St. Helen's Colliery Ltd. v. Hewitson⁽²⁾and Weaver v. Tredegar Iron & Coal Co., Ltd.⁽³⁾, that the phrase "arising out of and in the course of his employment" in the Road Traffic Acts and also in employers' liability policies must be interpreted as it has been interpreted for over 50 years at common law in decisions under the Workmen's Compensation Acts 1897 to 1945, that those decisions established conclusively that when a workman was injured while travelling to or from work in a from of transport provided by his employers on a public road or outside the work premises he was not "in the course of his employment" unless his terms of employment obliged him to travel in that way; and that as the plaintiff was not obliged him to travel in the car provided, the injury sustained by him did not arise out of and in the course of his employment. In the St. Helen's Case⁽²⁾ Lord Atkinson said (at page 70):

The case of Richards v. Morris⁽⁴⁾ illustrates well this principle."

4. The law, therefore, is quite plain that when a man is going to and 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, express or implied, of his employment, to travel in that vehicle.

5. In the instant case there is no question that there was no express term of the deceased workman's employment obliging him to travel in the coach provided by the respondent. The matter, therefore, resolves itself into the question whether there may be implied a term of the deceased workman's employment obliging him to travel in the coach, which, however, incidentally involves consideration of the further question whether the physical features of the locality of the respondent's factory were such that the coach service provided by the respondent was the only means of transit available to transport the workman to and from his work, for it is then, and only then, that there may (not must) 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 St. Helen's case⁽²⁾ per Lord Atkinson at page 70 (supra). For present purposes I propose to assume that they were.

6. The circumstances in which a term may properly be implied in a contract are, of course, governed by well settled principles which I do not think I need set out here, Having said that, it is none too easy, despite Mr. Bokhary's persuasiveness, to envisage circumstances in which a contractual obligation on the part of an employee to travel to and from work in transport provided by his employer may properly be implied. Mr. Ching's example of the cable car operator atop Mont Blanc is apt. Another example which occurs to me is that of a lighthouse keeper. In both instances I think that a contractual obligation on the part of the worker to go to and from his place of work by, in the one case the cable car, and in the other a boat provided by his employer, might properly be implied. And there are the cases of Richards v. Morris⁽⁴⁾ and Mole v. Wadworth⁽⁵⁾, in both of which such an obligation was implied where the worker had to travel across water to and from his place of work. When one comes to cases in which employers provide transport for their employees to and from work over public roads it becomes increasingly difficult, perhaps almost to the point of impossibility, to envisage circumstances in which a contractual obligation to use that transport might properly be implied. Indeed, in Vandyke v. Fender⁽¹⁾, in reply to a question by Sachs, L. J. counsel said that there was really only one known decided case that a man is in the course of his employment on the way to or back from work on a public highway or in a train - Cremins v. Guest, Keen and Nettlefold⁽⁶⁾, which was overruled. That case was, moreover, a case in which the means of transport was a train. In Hong Kong, however, there is the case of LAU Mon v. Vianini S. p. A.⁽⁷⁾. In that case the learned judge found that unless the applicant had the use of a car, the only means of transport available to him to travel to or from his place of work was a 'bus service provided by his employer. He said:-

"The applicant was therefore obliged to use the bus as an incident of his employment otherwise he could not travel to and from work."

Vandyke v. Fender ⁽¹⁾ was not cited in that case, It is to be noted that the learned judge held that the applicant was obliged to use the 'bus as an incident of his employment. Clearly, for he quoted them, he had in mind Lord Wrenbury' s words in the St. Helen's case⁽²⁾ (at page92):-

"And there are cases which would, I suppose, be within what are called above the 'incidents' of the employment, in which the journey to and from work may fall within the employment, because by implication, but not by express words, the employer has indicated that route, and the man owes the duty to obey."

But he did not quote the words which immediately follow:

"But the mere fact that the man is going to or coming from his work, although it is a necessary incident of his employment, is not enough."

He went on to observe that in Weaver's case ⁽³⁾Lord Atkinson (at page 163) discussed the principle of duty that a worker owed to his employer, and departed from the stricter view propounded in the St. Helen's case⁽²⁾.

7. Mr. Ching submits that the word "obliged" in the passage from the judgment in the LAU Mon case ⁽⁷⁾ quoted, supra, means obliged by circumstances, not contractually obliged. For myself, with respect, I think that it might mean either.

8. In Craw v. Forrest⁽⁸⁾ Lord Sands said (at page 77) that transit to the place of work might be an incident of particular work of the nature contemplated by Lord Wrenbury in the passage from his speech in the St. Helen's case⁽²⁾ quoted, supra. However, he continued:

"But to bring that within the employment it is essential that there should be a contractual obligation on the employee to avail himself of that means of transit."

In Craw v. Forrest⁽⁸⁾ the learned arbitrator had said that the mode of conveyance provided by the employer might even be said to be the only one which was reasonably practicable in the circumstances. In Taylor v. McAlpine (Sir Robert) and Sons, Ltd., Southern Railway Co., Third Parties ⁽⁹⁾ there were practically no other means by which the workman could reach the working place except by the means provided.

9. If an employee is under a contractual duty to travel to or from work by transport provided by his employer it is a necessary corollary that he will be in breach of contract if he travels to or from his place of work by any other means. Suppose that the deceased workman in the instant case had accepted a "lift" to or from work one day, would he have been in breach of his contract with the respondent? In my judgment the applicant can succeed only if that question can be answered affirmatively, which, applying the principles which govern the implication of terms in contracts to the agreed facts of the instant case, I do not think it can, any more than it could be in Craw v. Forrest⁽⁸⁾ and Taylor v. McAlpine⁽⁹⁾, in both of which cases the applicants failed (in Taylor v. McAlpine⁽⁹⁾, however, the facts were somewhat peculiar). I find, therefore, that the accident in the instant case did not arise in the course of the deceased workman's employment, and the application is accordingly dismissed with costs on the upper scale. Fit for leading counsel. The applicant's costs to be taxed under the Legal Aid Regulations on the upper scale.

10. Of course, no disrespect to counsel is to be implied from the fact that I have not dealt with each authority which they cited and every submission which they made. On the contrary, I am indeed obliged to them for the thoroughness of their research and the cogency and lucidity of their submissions.

11. Dated this 1st day of September, 1979.

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

(2) (1924) A.C. 59, H.L. (E )

(3) (1940) A.C. 955

(4) (1915) 1 K. B. 221

(5) (1913) 6 B. W. C. C. 129, C. A.

(6) (1908) 1 K. B. 469

(7) (1975) K. D. C. J. W. C. C. No. 90, unreported.

(8) (1931) 24 B. W. C. C. Supplement 67

(9) (1924) 17 B. W. C. C. 26