Lau Mon v. Vianini S.P.A.

DCEC000090/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 90 OF 1975

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In the matter of an Application between:

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Coram: Judge Jones in Court.

Date of Judgment: 11th February 1976

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JUDGMENT

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1. This is an application for Workmen's Compensation under Sections 9 and 10 of the Workmen's Compensation Ordinance arising from personal injuries suffered by the applicant in a road traffic accident that occurred on the 6th September 1974 at about 5.45 a.m. The applicant was employed by the respondent as a mason working on the west dam of the High Island Water Scheme Reservoir.

2. At the time of the accident the applicant was returning home after the night-shift when the bus upon which he was travelling was involved in an accident on the public highway between Tai Mong Tsai and Pak Sha Wan.

3. The only issue that I have to decide at this stage is that of liability for it is not anticipated that a final assessment upon the applicant's disability can be made until later this year.

4. In order to get to work the applicant said that he travelled by public transport from his home at Sau Mau Ping Estate to Choi Hung Estate where he transferred to a bus operated by Hoi Tai Tours Limited on behalf of the respondent. This bus would take him to High Island and he would use the same mode of transport after work to return home.

5. The applicant in his evidence which I accept said that when he signed his contract of employment he was told that there would be vehicles to transport him to and from Choi Hung Estate and the site. Notices were also posted at the site and in the canteen to the effect that workmen engaged on the night-shift should take the transport at the Choi Hung terminus. The bus was for the exclusive use of the respondent's employees who were entitled to travel free of charge. If an employee had a car he was entitled to access to the closed area at Tai Mong Tsai where there is a barrier, provided that he was in possession of a permit.

6. The applicant does not own a car, and apart from one occasion always used the bus to travel to and from Choi Hung Estate.

7. Mr. CHANG who appeared for the respondent concedes that if the accident had occurred within the barrier i.e. where the employer is in control of the area liability could not be disputed. However, he contends that as the accident occurred on the public highway the respondent is not liable as the applicant was no longer acting in the course of his employment for he was not bound by any contract of service or under a duty to use this facility. He was merely availing himself of a privilege accorded by the respondent to do so.

8. Certain facts were agreed viz.: the first available public transport from the barrier at Tai Mong Tsai to Sai Kung leaves at 6.25 a.m.; the respondent employs 1200 workers of whom 700-800 are engaged on the day-shift with the remainder on the night-shift; and 400 car permits have been issued.

9. An agreed document Notice No. 74 on the respondent's headed notepaper reminds all employees to use the buses in a civilized manner failing which employment will be terminated without compensation. These words clearly indicate a measure of control by the respondent over the behaviour of their employees that could have serious consequences if they are disregarded.

10. No evidence was called on behalf of the respondent.

11. In his submission Mr. CHANG relies largely upon the case of St. Helens Colliery Company Limited v. Hewitson (1924) A.C. 59. In this case a workman employed at a colliery was injured in a railway accident while travelling in a special collier's train from his work to his home. It was held that as there was no obligation on the workman to use the train; the injury did not arise in the course of the employment within the meaning of the Workmen's Com-pensation Act 1906.

12. Lord Atkinson in his judgment at page 70 said:-

"If each collier was bound by his contract to travel to his employer's colliery by this provided train, then cadit quaestio. The collier would be in the course of his employment when he was doing a thing he was bound by his contract of service to do. But the conferring upon a collier of a privilege which he is free to avail himself of or not, would, prima facie, impose no duty whatever upon him to use it. It must, however, be borne in mind that if the physical features of the locality be such that the means of transit offered by the employer are the only means of transit available to transport the workman to his work, there may, 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?"

He then went on to illustrate this principle with the case of Richards v. Morris (1914) 1 K.B. 221 where the widow of a workman who had been employed on an island was awarded compensation. By his contract of service the workman was allowed at reasonable times to cross to the mainland to visit his wife, and to travel by his employer's boat for that purpose. He died as a result of injuries received in an accident whilst in the boat which was held to have arisen out of as well as in the course of his employment.

13. Lord Wrenbury in Hewitson's case at page 92 said:

"And there are cases which would I suppose, be within what are called ........ 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?"

It is significant to observe that in a later case Weaver v. Tredegar Iron and Coal Co.,Ltd. (1940) 3 A.E.R. 157 Lord Atkin at page 163 discussed the principle of duty that a worker owed to his employer, and departed from the stricter view propounded in Hewitson's case.

14. However, despite the fact that a more liberal interpretation is likely to be adopted to-day with regard to the duty principle, I find that it is unnecessary for me to do so in coming to my decision in this case.

15. It is quite clear upon the evidence that unless the applicant had the use of a car the only means of transport available to him to travel to and from Choi Hung Estate to the High Island Scheme was by the Hoi Tai bus.

16. From the time that the applicant boarded the bus at 5.30 a.m. on the morning of the accident to return home there was no public transport available from the barrier until almost one hour later. Although Lord Atkinson in Hewitson's case at page 80 said that the respondent there should walk to work if there were no trains or perhaps get work nearer home I do not think that such a suggestion to-day would countenance much favour. It would be quite unrealistic and patently absurd to expect the applicant to walk to and fro to his place of work.

17. I find that having regard to the locality where the applicant was employed it was expressly stated by the respondent that transport would be available to and from Choi Hung Estate.

18. Mr. CHANG submits that the applicant used the bus not from any duty, but that of necessity it was convenient or desirable to do so. But in this case I find as a fact that there was no other means of transport available. The applicant was therefore obliged to use the bus as an incident of his employment otherwise he could not travel to and from work. As a result when the bus is travelling along the public highway the applicant does not at that point cease to be an employee, and incur risks as an ordinary member of the public. He is still an employee, and remains so until he has alighted from the bus at Choi Hung Estate. Accordingly I consider that the applicant was in the course of his employment at the time of the accident with the result that he is entitled to judgment against the respondent with agreed costs on the upper scale. The matter of compensation will be adjourned sine die with liberty to restore.

Representation:

P.K.M. Longley of Legal Aid Department for applicant.

Denis CHANG instructed by Hastings & Co. for respondent.