Ma Yuet Yin v. Patt Manfield & Co Ltd

DCEC000087/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 87 OF 1980.

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Coram: H.H. Judge Jones

Date of Judgment: 6th November 1980.

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JUDGMENT

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1. The only issue that I have to determine in this application for Workmen's Compensation is whether the accident arose out of the deceased's employment.

2. The deceased was employed as a motorman by the respondent on the M. V. "ZUIJIN". On the 1st August 1979 the deceased was stabbed by a fellow seaman whilst on board the vessel at Kuwait. As a result of the that he sustained the deceased died on the 6th August 1979. The assailant was subsequently convicted for murder and was sentenced to a term of imprisonment for twelve years.

3. It is agreed that the deceased's death arose as a result of an accident within the meaning of the Workmen's Compensation Ordinance, and occurred during the course of his employment.

4. Section 5(c) of the 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.'

5. Mr. Collins who appeared for the applicant has drawn my attention to R. v. National Insurance (Industrial Injuries) Commissioner Ex parte Richardson (1958) 2 All E. R. 689 a decision based upon Section 7(4) of the National Insurance (Industrial Injuries) Act 1946 which is similar to our Section 5(6). In his judgment at page 690 Lord Goddard C.J. said '......if a person proves merely that he suffered an accident in the course of his employment, and there is no other evidence, then it is to be deemed that the accident arose out of the employment. If, however, the facts which are in evidence before the Commissioner can amount to evidence to the contrary, then the presumption disappears, and 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.' Devlin J. in the same case concurred and said that the word evidence in the section means "evidence fit to be left to the jury."

6. In Tsang Yuk Chung v. China Fleet Club V.D.C. Workmen's Compensation Case 92/72 the deceased who was employed as a cook at the China Fleet Club was stabbed to death by a fellow cook. Judge Bewley held that the presumption arose on the grounds that choosing between an 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. The accident was therefore deemed to have arisen out of the deceased's employment.

7. On the other hand Judge Hooper came to a contrary decision in Wong Gun Fook and others v. Mrs J.L.G. Mclean (1973) D.C.L.R. 75 where a young amah was murdered in her employer's premises. He held that as nothing had been stolen from the premises there was some evidence from which it was possible to infer that the accident was unconnected with her employment. Judge Hooper conceded that it was not the only inference that could be drawn, but that it was sufficient evidence to be left to a jury to rebut the presumption. The applicant had therefore failed to prove that the accident arose out of the deceased's employment.

8. Judge Garcia adopted the same view in Lai Fong and Yeung Yip Chun v. Shun Fung Ironworks Ltd. V.D.C. Workmen's Compensation 100/76 and 101/76. The applicants were melting furnance workers who worked on the night shift from 8.00p.m. until 8.00a.m. the following day. Having finished their work by about 4.00a.m. they went to sleep at their employer's premises. Whilst asleep they were attacked by a follow worker, and sustained serious injuries. There was no apparent reason for the attack. It was held that the accident neither occurred during the course of employment nor arose out of the employment. However, although the presumption was rebutted it was not clear what evidence to the contrary was relied upon.

9. It was submitted by Miss Mok for the respondent that the judge erred in Tsang Yun Chung v. China Fleet Club because he decided which was the correct inference to draw upon the facts. However, this is palpably wrong for no inference was drawn. The case was decided on the basis that there was no evidence fit to be left to a jury to show how the dispute arose so that the presumption arose.

10. In the instant case the only evidence before the Court is that the deceased received his injuries when he was in the engine room of the ship upon which he was employed. There was no evidence of the relationship between the deceased and his assailant except that they were fellow workers. It is clear that the Court does not have to be satisfied as to how the accident happened, but has to decide whether there is some evidence from which it can properly be inferred that the accident was not connected with the deceased's employment. There was no evidence to show whether the cause of the accident was attributable to the deceased's employment or to a private dispute. It is not possible to draw a proper inference from the facts one way or the other. In the absence of evidence to the contrary the presumption will arise. Accordingly the accident is deemed to have arisen out of the deceased's employment.

11. The amount of compensation has been agreed at $60,000. Accordingly there will be judgment for the applicant for the sum of $60,000 with costs on the upper scale. There will also be the usual legal aid taxation. The sum of $1,000 received by the applicant from the respondent may be deducted from the compensation awarded. Payment into Court within 14 days. Upon payment in payment out to the applicant subject to the first charge of the Director of Legal Aid limited to $2,500.

Representation: