Yan Tong-kan Alice v. Gammon (HK) Ltd
Read the full judgment text of DCEC 90/1980 on BabelCite. This District Court judgment.
1. The applicant proceeds as personal representative of her husband YUET Chuen-shing who died on the 13th of October 1978 consequent upon injuries received that day on the highway adjacent to the respondent's batching plant at the Tun Man New Town Reclamation, Area 28 and 48 New Territories. There is no dispute by the defendant as to dependency of the applicant or of her children. It was accepted by Mr. Pirie for the respondent that if liability existed the applicant was entitled to the maximum
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DCEC000090/1980 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION WORKMEN'S COMPENSATION CASE NO. 90 OF 1980 ----------------- In the matter of an application between
----------------- Coram: H.H. Judge Caird in Court. Date of Judgment: 18th March, 1981 ----------------- JUDGMENT ----------------- 1. The applicant proceeds as personal representative of her husband YUET Chuen-shing who died on the 13th of October 1978 consequent upon injuries received that day on the highway adjacent to the respondent's batching plant at the Tun Man New Town Reclamation, Area 28 and 48 New Territories. There is no dispute by the defendant as to dependency of the applicant or of her children. It was accepted by Mr. Pirie for the respondent that if liability existed the applicant was entitled to the maximum amount payable i.e. $60,000. 2. The only issue which requires determination is whether the accident arose out of and in the course of the deceased's employment by the respondent. 3. The facts were very simple. The applicant's main witness being one WAN Kam who was a driver employed by the respondent working at the construction site and that some time after 6 p.m. on the 13th of October 1978 he was cleaning his mobile concrete mixer at the roadside at the construction site. The deceased, YUET Chuen-shing, passed him and spoke to him. The witness also spoke a few words and he then observed the deceased walk towards the direction of a public toilet on the opposite side of the road, when he was knocked down by a vehicle using the road. This was some 10' away from the witness. He gave evidence that the toilet was some 200 yards away from the scene of the accident. He expected to go off work at about 8 p.m. that evening because the concrete work had not been completed. The gravemen of his evidence was that the public toilet on the opposite side of the road was closer than a toilet provided on site near the office. He said under cross-examination that the toilet next to the office was normally used by the office staff and the foreman except that the workers had the right to go there but claimed that it was very small. Also he agreed that if anyone left the site, it would be subject to the foreman's permission. 4. He stated the deceased was a person who would work any overtime made available. 5. The deceased's wife gave evidence stating there was no special reason for the deceased to return home early that day. 6. It was originally Mr. Pirie's case that the deceased had abandoned work for the day and was crossing the road in order to travel home and this he claimed was borne out by a time card used to clock-in and clock-out. However, it became clear from the evidence that workers were paid 3½ hours' overtime per day provided that they stayed on to finish the work and that this could take them beyond the 3½ hours actually worked. The time card was produced in evidence and writing on it purported to show the deceased commenced work each day at 7.30. and concluded at 1900. It appeared clear that the time card itself borne no relationship to actual hours worked and in these circumstances it was accepted by Mr. Pirie that it has little, if any, evidential value to persuade me to draw any inference that the deceased had handed the time card to another workman and was leaving the site for the day, in collusion with that workman. 7. In the circumstances on inferences which I consider I can properly draw I was satisfied on the balance of probabilities that the deceased was leaving the site in order to answer a call of nature. Also that the toilet chosen by him was a public toilet closer than that provided by the employer. That this occurred during working hours on the 13th October 1978. 8. From the way in which Mr. Pirie postulated his submission at the conclusion of his case none of the foregoing conclusions were seriously in dispute. 9. Section 5(6) of the Employee's Compensation Ordinance Cap. 282 provides,
10. I find this singularly unhelpful as the legislature imports a distinction which it does not define. In passing I observe that this particular statutory method of dealing with employer/employee legal liability for compensation has previously been enacted in at least two other jurisdictions namely the United Kingdom and new Zealand. 11. I have no doubt whatsoever that a worker remains in the course of his employment despite his ministering to himself in such ways as quenching his thirst, relieving his hunger, obeying the calls of nature, changing clothes (e.g. Judge's Robing) any acts which are reasonably necessary to protect an employee's health and comfort are incidental the employment and acts of service therein within the meaning of the Ordinance albeit they are personal to the employee and only indirectly connected to the object of his employment. Park v. Peach(1). 12. Mr. Pirie referred me to two cases where accidents occurred when an employee left his place of work to attend a place of convenience. 13. First in Cogdon v. Sunderland(2) the employee went to his father-in-law's house three streets off a distance of about 214 yards and there sustained injury. 14. This is easily distinguishable from the instant case as Judge O'Connor held that the employers should not be liable when the worker for his own purpose entered private property "where the employers cannot probably follow him if they so wish." 15. The Court of Appeal in Rose v. Morrison & Mason Ltd.(3) held that an applicant's claim could not be met when he went into a hoist where it was unreasonable for him to go and where he could not have gone by mistake. 16. This appears to have been dealt with solely on its own facts. 17. It is important in my view to remember that the courts in the United Kingdom could not then, and in fact cannot now, pray in aid the provisions of Section 19 of the Interpretation and General Clauses Ordinance Cap. 1 which provides that every ordinance.
18. It is clear that "fairness" in interpretation rather than fairness in result is the proper approach R. v. Mirchandani(4). 19. The difficulties facing any Judge are well illustrated in the exercise embarked upon by Judge Jones in Ma Yuet Yin v. Patt Mansfield & Co. Ltd.(5) a decision which I found to be most helpful. Also I have sought to avoid the pitfalls so clearly pointed out by Lord Dunedin in Plumb v. Cobden Flour Mills Co. Ltd.(6)
20. In the instant case the accident clearly arose in the course of the deceased's employment, the question is whether it arose out of the employment. 21. The applicant's case was that her husband answered a call of nature using a public convenience. 22. There was no evidence to show that this was prohibited by the defendant. In fact the evidence and the advocate's arguments pointed to the contrary. 23. The sphere of the deceased's employment must be determined upon a general view of the nature of his employment and its duties. 24. There was nothing before me to show the deceased by going to a public convenience was arrogating to himself duties of a personal nature which he was not entitled to perform and in my view the risk he ran is crossing the road to a convenience nearer at hand to the one supplied by the defendant was a risk reasonably incidental to his employment. 25. Accordingly the applicant is entitled to Judgment: (1) Compensation assessed and awarded at $60,000. (2) Interest as from the 13th October 1978 at 12½% subject to the final determination of appeal No. 6 of 1981. Such interest shall not be payable, if ultimately payable before such determination. (3) There shall be a stay of execution for 21 days. (4) Defendant to meet applicant's costs. There to be taxed by the Deputy Registrar. Upper Scale to apply. Also the applicant's costs shall be taxed in accordance with legal aid Regulations. (5) I wish to hear Mr. Ng on the suggestion as to payment by instalments made by the Social Welfare Department. 26. In conclusion I wish to extend my thanks to Mr. Pirie for the mature responsible approach adopted in presenting his client's case, and also for the authorities used by him and left with me.
Representation: (1) [1967] V. R. 558 (2) 1 B.W.C.C. 156 (1907) (4) 1977 H.K.L.R. 523 (5) V.C.J. 87 of 1980 (6) [1914] A.C. 62 |
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