Lai Fong and Another v. Shun Fung Ironworks Ltd

DCEC000101/1976

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO.101 & 100 OF 1976

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CORAM: JUDGE GARCIA IN COURT

Date of Judgment: 17th January 1977

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JUDGMENT

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1. These two applications arise out of the same incident and for the purpose of the present proceedings, are consolidated, both applicants being workmen of the Respondents, the Shun Fung Ironworkds, Ltd.

2. The first application is made by Mr. Yeung Yip Chun of 511 Wang Tau Hum Estate, Block 24, Kowloon, and at the time of the accident to which his application relates, was employed as a melting furnace worker at the Respondents' mill at Junk Bay, New Territories, earning $22 per day.

3. The second application is made by Mr. Lai Fong of 580 Wang Tau Hum Estate, Block 20, Kowloon, and at the time of the accident was employed also as a melting furnace worker at the same mill at a wage of $25.50 per day.

4. On the 19th day of November, 1976, the two applicants were on duty at the said mill, their hours of work that day being between 8 p.m. to 8 a.m. the following day, that is 20th November, 1976. From their evidence, it appears that the two applicants and other workmen in the Section in which they were employed had finished their work shortly after 4 a.m., but before 5 a.m. that morning, and at the time of the accident were lying on a wooden board which was placed on the floor near to where they had been working, and in that position went to sleep. They intended to remain there until 8 a.m. when their tour of duty ended and then leave the mill and return home.

5. Whilst they were alseep in that area, both the applicants where assaulted by a fellow workman by the name of Au Chui Wan, for no apparent reason whatsoever because both of them say that they had never quarrelled with Au prior to the accident. They were also unable to assign any reason whatsoever for the assaults committed on them by Au. Furthermore there is no history of any bad feeling or enmity between the applicants and Au, nor is there any evidence to indicate that Au had acted abnormally either before or after the assaults.

6. As a result of the assaults on them, Mr. Yeung suffered a deep laceration on the left forehead with a depressed fracture of the skull underneath, plus a 2" long laceration behind the left ear with linear fracture of the skull underneath, whilst Mr. Lai suffered multiple lacerations on his right forehad and a severe compound depressed fracture of the right frontal and temporal regions with brain substance oozing from the wounds. There is no doubt that the injuries sustained by both applicants were extremely serious and indeed it is remarkable that both of them are still alive.

7. On 13th April, 1976. Mr. Lai attended a medical board and he was found to have suffered permanent injury as follows: (1) Functional loss of right eye vision; (2) Disfigurement of the right skull; and (3) Residual damage to the right brain. His permanent incapacity was assessed at 50%.

8. On 27th July, 1976. Mr. Yeung attended a Medical Board and he was found to have a skull defect to the left frontal region and his permanent incapacity was assessed at 10%.

9. These applications for compensation under the Workmen's Compensation Ordinance are opposed on the ground that the accidents did not arise out of or in the course of their employment.

10. It has been submitted that on the facts as presented by the applicants it is at least arguable that the accidents did not arise in the course of their employment because they were sleeping at that time and that they had finished their work. There is some authority to support the proposition that on the evidence adduced by the applicants, the accidents did not arise in the course of their employment. In Charles R. Davidson & Co. v. M'Robb or Officer (1918) A.C. 304, it was stated by Lord Finlay that 'in the course of the 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 workmen's own purposes is an interruption of the employment. Again it was stated that 'in the course of employment' must mean similarly in the course of the work which the man is employed to do and what is incident to it; in other words, in the course of his service." It cannot be said that sleeping on the premises of the mill whilst waiting to go home after their period of duty was over is incidental to their employemnt, since there is no evidence to indicate that such an activity was usual or normal or that such activity was permitted by the employers as part of the workmen's contract of employment.

11. However, the principal question which arises in these proceedings is whether a workman who is assaulted and injured by a fellow workman, if, whilst engaged in work which does not expose him to any special risk of being assaulted and injured can be considered to be a workman who has sustained an accident arising out of and in the course of his employment so as to enable him to bring a claim against his employers under the Workmen's Compensation Ordinance. The tests to be applied in the circumstances of the present case have been discussed in many authorities but a summary of the result of those authorities is set out in four propositions propounded by Lord Russell of Killowen in Lawrence v. George Matthews (1924) Ltd., (1928) 21 B.W.C.C. 345, which are as follows :

"(1) If the accident results from a risk which is necessarily incident to the performance of the servant's work, the accident arises out of the employment; all inquiry as to the frequency or magnitude of the risk is irrelevant and it makes no difference that members of the public face the same risk. That appears to me to be a correct statement of the decision of the House of Lords delivered in Dennis v. White & Co. (1917) A.C. 479, 10 B.W.C.C. 280 on June 14, 1917 (2) If a workman is injured by an accident resulting from a risk to which every one is subject, but of which it can be said that the workman runs more than the normal risk the accident arises out of his employment, because the abnormal risk was necessarily incident to the performance of his work. That appears to me a correct statement of the decision of the Court of Appeal in Andrew v. Failsworth (1904) 2 K.B.32, 6 W.C.C.11. where a brick layer in an elevated position on a scaffold was killed by lightning. That proposition also covers the decision in Anderson (Geo.) & Co. (1905) Ltd. v. Adamson (1913) 6 B.W.C.C. 874 where the necessity of the workman to adopt a stooping position at his work caused him to run more than the normal risk (3) If a workman is injured in an accident resulting from a risk to which everyone is subject, but which is not necessarily incident to the performance of his work or to which he is not by his work abnormally subjected, the accident does not arise out of his employment. Thus in Knyvett v. Wilkinson Brothers, Ltd. (1918), 11 B.W.C.C.50, where a traveller was injured by a bomb while walking in the street in the discharge of his duties. it was held that the accident did not arise out of his employment and in Allcock v. Rogers (1918) 11 B.W.C.C. 149, the House of Lofds held (on March 21, 1918) that where a postman was injured by a bomb while standing in the street cleaning his employer's brass door-plate, the accident did not arise out of his employment. ..... The authorities seem to me to establish a further proposition, namely, that sufficient causal relation or causal connection between the accident and the employment is established if the man's employment broght him to the particular spot where the accident occurred, and the spot in fact turns out to be a dangerous spot. If such a locality risk is established, then the accident 'arises out of' the employment, even though the risk which caused the accident was neither necessarily incident to the performance of the man's work, nor one to which he was abnormally subjected. This fourth proposition is based upon the decision of the House of Lords in Simpson or Thom v. Sinclair (1917) A.C.127; 10 B.W.C.C.220, on March 8, 1917.................. The contention adopted and applied in Simpson or Thom v. Sinclair appears to me to be this : If the accident has occurred to the workman by reason of the employment bringing about his presence at the particular spot and so exposing him to a danger which in fact is proved to exist at that particular spot, then the accident arises out of the employment."

12. Applying these tests to the present case, there can be no doubt that the accidents which both applicants sustained do not arise out of the employment with the Respondents as the evidence does not show, firstly, that the accidents resulted from a risk which is necessarily incident to the performance of their duties, or that the risk was an abnormal one for the workmen or secondly, that the place where the accidents occurred was a dangerous spot so as to bring them within the abovementioned fourth proposition. Moreover the evidence of the two applicants show that they were not performing any work at the time the accidents occurred as they were asleep in the mill.

13. The fourth proposition has been explained by Lawrence, L.J. in his judgment in Holden v. Premier Waterproof and Rubber Co. Ltd., where he says "I think it is plain that what is meant by a dangerous spot in this connection is a spot which owing to its locality is in fact inherently dangerous although the danger may be a lurking danger and not known to anyone, such as a wall with a bad foundation which may collapse - a tile which may fall; it does not mean that because the accident happened at a particular spot, and because the workman did in fact incur danger at that spot, that therefore it was a dangerous spot within the fourth proposition ..... In my judgment, to be a dangerous spot, within the fourth proposition of Russell, L.J. in must be a spot which is inherenly dangerous - not a spot which merely happened to be dangerous because the injury was occasioned there".

14. In Holden v. Premier Waterproof and Rubber Co. Ltd. (1930) 23 B.W.C.C. 460, a workman was murdered in a rubber factory by a fellow workman who suddenly developed homicidal mania. On a claim for compensation by his dependent father, it was held on appeal that the risk of being attacked by a madman did not arise out of the employment either by reason of the duties performed by the workman or by reason of the locality in which they were performed.

15. Section 5(6) of the Ordinance provides that an accident in the Course of a workman's employment is deemed to arise out of his employment in the absence of evidence to the contrary. In R.V. National Insurance (Industrial Injuries) Commissioner, Ex parte Richardson (1958) 2 AE.R.689, Lord Goddard, C.J., in considering the provisions of Section 7(4) of the National Insurance (Industrial Injuries) Act, 1946, which are similar to those of Section 5(6) of the Ordinance stated :

".... if a person proves merely and there is no other evidence except that he suffered an accident in the course of his employment, then it is to be deemed, it is taken to be proved that is arose out of the employment. But if there is evidence to the contrary by whoever it is given, that is to say, the facts which are before the Commissioner can amount to evidence to the contrary, then the presumption or the deeming disappears, and if once that deeming disappears it is then for the Applicant to prove that the accident did arise not only in the course of but also out of his employment. The words of the section are not "in the absence of proof to the contrary" or "unless the contrary is prove"; the words of the section are "in the absence of evidence to the contrary", and that has been held before now by the Industrial Injuries Commissioners and, in my opinion, quite correctly, to mean no more than this, that if there is evidence before the Commissioner that the accident does not arise out of or in the course of the employment then there is no presumption at all and it is left to the parties to prove the case in the ordinary way."

16. Applying the abovementioned principles to the evidence adduced by the applicants in support of their claims, I am of the opinion that the presumption in Section 5(6) of the Ordinance is displaced and in my judgment their claims for compensation fail.

17. Their applications are therefore dismissed with costs on Upper Scale. Applicants costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Messrs. Bernard Wong & Co. for applicants.

Messrs. Deacons for respondent.

Cases cited:-

Representation:

Messrs. Bernard Wong & Co. for applicants.

Messrs. Deacons for respondent.