Tsang Fung-yee v. Leung Cheng Engineering Co

DCEC000164/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

EMPLOYEE'S COMPENSATION CASE NO. 164 OF 1981

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In the Matter of an Application between: -

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

Date of Judgment: 24th December, 1981.

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JUDGMENT

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1. In this application for employee's compensation the question arises yet again whether the accident arose out of and in the course of the employee's employment.

2. The facts are simple : The employee was lost overboard while he was travelling to his place of work at Discovery Bay on Lantau Island on a ferry which was not provided by his employer.

3. The rule of thumb in these cases is that if an accident occurs at the employee's place of work then prima facie it arises in the course of his employment. Aliter, if it occurs elsewhere. It has been said that where there are no normal means of access to the place of work the employer is bound to supply some, and the employee making use of those means is in the course of his employment: LO Kwai-chun v. Hong Kong Oxygen, etc., Co., Ltd.⁽¹⁾ In the instant case the only means of access to the place of work was by sea. The respondent did supply a ferry, but ferries were also supplied by a number of other employers at the same place of work, and the respondent's employee were at liberty to use and did use ferries supplied by those other employers. It may therefore be doubted whether in the instant case the respondent was at the material time under a contractual obligation to supply a ferry service. Even if it was it is clear beyond peradventure that its employees were under no contractual obligation to avail themselves of it, and, therefore, not in the course of their employment when they did, a fortiori when they did not: Vandyke v. Fender et al.⁽²⁾, in which it was held 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 had been interpreted for over 5 years at common law in decisions under the Workmen's Compensation Acts 1897 to 1945 and that those decisions established conclusively that when a workman was injured while travelling to or from work in a form 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 obligedhhim to travel in that way. So much for that aspect of the matter.

4. I have considered whether it might be said that the ferry from which the employee was lost overboard was an extension of his place of work, on the basis of decisions in such cases as Leach v. Oakley⁽³⁾ and Morrison v. Owners of S.S. "Aboukir" , Woods v. Same⁽⁴⁾ and in Hong Kong, NG Oi-wa v. Lamp's Co.⁽⁵⁾

5. But one look at the judgment of the learned County Court Judge in the "Aboukir" case⁽⁴⁾ suffices, I fear, to dispose of that. He said:

"Morrison would not be within the Workmen's Compensation Act until he had got to a point where it was necessary to take some risk other than that involved in being a passenger on the boat, some risk connected with using or attempting to use the gangway provided by the ship. If the boat sank by its own unseaworthiness before reaching such a point, or if by some peril of navigation an accident arose before it reached that point, then the accident would not be within the Act."

6. Finally, Mr. Wills for the applicant advances the ingenious argument that the employee was in the course of his employment when he fell overboard, which he did shortly after 10-15 a.m., inasmuch as his wages were calculated on the basis of a working day beginning at 8 a.m. regardless of whether he actually began to work at 8 a.m. (which as a matter of fact he never did) or later (which as a matter of fact he always did). But even were I to accept that (and I doubt whether the evidence is really strong enough to warrant accepting it) I do not think that that can have any significant bearing upon the question whether he was in the course of his employment when he was lost overboard, which is mainly a question of fact. And in my judgment in all the circumstances the fact of the matter is that the employee was not in the course of his employment until he began to disembark from the ferry at the pier at the Discovery Bay work site (c.f. the "Aboukir" case, supra⁽⁴⁾).

7. The application must be dismissed with costs on the upper scale. The applicant's costs to be taxed on the same scale under the Legal Aid Regulations.

Dated this 24th day of December, 1981.

Representation:

(1) (1980) H.K.L.R. 420 at 426 per Cons, J.A.

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

(3) (1911) 1 K.B. 523

(4) (1928) 21 B.W.C.C. 163 at 165, 166

(5) (1980) C.A. No. 129 (Civil)