Chow Mui v. Chow Cheuk Chung and Others

Case No.DCEC 78/1969[1970] DCLR 94[1970] HKDCLR 94

Court

District Court

Date30 Sep 1970

Judge—

Case Document

100%Judiciary

DCEC000078/1969

Workmen's Compensation - Meanings of Principal and Contractor - Accident during rest period is accident in the course of employment - accident arising of employment.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 78 OF 1969

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	Chow Mui on behalf of herself and other dependants of the deceased	Applicant
	AND
	Chow Cheuk Chung	1st Respondent
	Hope Sea Limited	2nd Respondent

	Lee On	Intervener

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Coram: T.L. Yang, District Judge

Date of Judgment: 30 September 1970

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JUDGMENT

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1. This is the widow's application for compensation under the Workmen's Compensation Ordinance in respect of the death of her husband Mr. Lau Man-bun, who died on 30th March 1969, whilst employed as workmen on board a ship called the Kowloon Star. The First Respondent is the sole proprietor of a firm of stevedores carrying on business under the style and title of Luen Lee Stevedores, at 396 Shanghai Street, first floor, Kowloon. His business included that of providing watchmen on board ships. It appears that, whilst he is described in this application as a partner of a firm called the Tung Yiu, he does not in fact have any connexion with that firm. The Second Respondent is the owner of the Kowloon Star which was lying near the Stone Cutters Island at the material time. The Intervener is a watchman by occupation who performs his duties on board ships.

2. The circumstances in which Mr. Lau Man-bun (hereafter referred to as the deceased) died were as follows. On the 26th March 1969 the Kowloon Star was towed back to Hong Kong from Singapore. She was then moored at a position off the Stone Cutters Island waiting for the owner to find a buyer for her. Though the vessel was not carrying any cargoes at the time, it was nevertheless necessary for watchmen to be posted to guard the fixtures in order to prevent any pilfering. It was with this purpose in mind that the owner of the vessel asked the First Respondent to provide two watchmen on board. The First Respondent not having the requisite licence to employ watchmen, in turn asked the Intervener to recruit the required number of watchmen for him. It will not be out of place to note here that since 1968, whenever the First Respondent was asked by ship owners to provide watchmen on their ships, he would engage the Intervener to recruit the required number of watchmen for him. On the occasion now under consideration the Intervener recruited the deceased and one Mr. Hui Cheung as watchmen on the Kowloon Star and the two men went on board when the vessel arrived in Hong Kong on the 26th March 1969.

3. In order to determine who the employer of the deceased was, it is necessary to appreciate the manner in which he was paid. As a normal practice (though there were a few exceptions), the First Respondent would pay the Intervener for providing the watchmen, and the Intervener would in turn pay each watchman the wages due. The amount payable by the First Respondent to the Intervener was shown on an invoice rendered, which specified, inter alia, the wages due to the watchmen and the foreman, and also expenses for such items as meals and the hiring of motorboats to ferry the watchmen to and from the ship concerned. The so-called foreman was in fact often nothing more than a fictitious figure in that the Intervener himself would pocket the foreman's wages without performing the duties as such. The prevailing rate of pay for a watchman in the trade was $8 per eight-hour shift and that for a foreman was $10 per eight-hour shift. The Intervener did not in fact receive the full amount stated in his invoice, for the First Respondent made his profit by deducting ten per cent from the watchmen's wages and half of the foreman's wages whilst claiming the full amount from the ship owners. It appears from the evidence that in the present case the normal method of payment was adopted.

4. The position here is governed by the 1964 Revised Edition of the "orkmen's Compensation Ordinance, for the 1969 Revised Edition did not come into effect until after the death of the deceased. By Section 23(1) of the 1964 Revised Edition (which is in exactly the same terms as Section 24(1) of the 1969 Revised Edition):

"Where any person (in this section referred to as the principal), in the course of or for the purpose of his trade or business, contracts with any other person (which other person is in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this Ordinance which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this Ordinance, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed."

5. The operative word for the purpose of these proceedings is "undertaken", which was explained by the Court of Appeal in Skates v. Jones & Co.⁽¹⁾ where a similar provision, namely Section 4 sub-section 1 of the Workmen's Compensation Act 1906, was considered. There Farewell, L.J. said (at pages 909 - 910):

"We are not entitled to use the marginal note as a guide to construction, and I do not rely on it; but the section appears to me to have been originally intended to apply to the contractor who sub-lets part of his contract and then to have been developed on the basis that a contractor who does work for another on contract is in the same position towards the workman as the contractor who does the same class of work in the usual way of business for himself and sub-lets part of it, and this explains the words 'undertaken by the principal' as including the man who undertakes in the usual course of his business to do the work, whether for himself or for another. The builder or decorator may be said to undertake the work of building or decorating a house whether he does it for himself or for another; but a banker or a grocer neither builds nor decorates as part of his trade or business, and no one would say that either of them had undertaken the building or decorating: it is the builder or decorator employed by him who undertakes the work: the only undertaking by the banker or grocer is to pay for such work. This is shown by the words 'in the course of or for the purposes of his trade or business.' While there is no reason for drawing a distinction between a building undertaken by a builder for himself and a building undertaken by him under contract for another, there is equally no reason for drawing a distinction between a building contracted to be done for a grocer by way of addition to his shop and a building contracted to be done for a private resident next door by way of addition to his dwelling-house; but the words 'in the course of or for the purposes of his trade or business' shew that the private resident is not within the section. The man of business or tradesman is not made a principal because he is in business or tradesman is not made a principal because he is in business or in trade, but because the particular work in question is his own trade or business; and this is the true construction of the section in my opinion."

6. On the facts stated above, and applying the principle formulated by Farwell, L.J., the conclusion that I must draw is that the Second Respondent was not a principal within the meaning of Section 23(1) of our Ordinance. A shipowner does not undertake to provide watchmen on his ship, because he does not carry on the business of guarding ships. Similarly, a banker or an owner of a grocery shop does not carry on the business of having a watchman at his place of business. The posting of watchman is merely something incidental to his trade. For this reason, I hold that the Second Respondent is not liable to the Applicant.

7. Applying the same principle, it is obvious that the First Respondent was the principal, for it was part of his business to provide watchmen for his customers' ships. It is also clear from Section 23(1) of the Ordinance that the Intervener was the contractor because he executed the work, i.e. that of providing watchmen, which had been undertaken by the First Respondent. It has been argued that as the evidence shows that the First Respondent had instructed the deceased and Mr. Hui Cheung to be diligent in their work, he and not the Intervener was the employer. I am unable to agree with this contention, for the simple reason that it is not unnatural for any person interested in the safety of the ship to give the instructions as the First Respondent did. Such exhortation is not the prerogative of an employer. Furthermore, had the First Respondent been the direct employer, it would have been more consonant with business conduct to pay the watchmen direct instead of doing it through the Intervener.

8. It is common ground that the deceased's duties as a watchman on board the Kowloon Star involved the patrol of the different decks, thereby necessitating the climbing of steps. He was paid $24 a day at $1 an hour or $8 per eight-hour shift, which meant that he was on duty twenty-four hours a day. It is also common ground that the deceased collapsed on the upper deck about an hour after he had started his rest period and almost immediately after cooking a mid-day meal for himself and Mr. Hui Cheung. The collapse therefore occurred in the course of the deceased's employment. In this connexion it may be pertinent to refer to this passage in Willis's Workmen's Compensation, 35th ed. (at page 37):-

"When between hours of active work it is the duty of a workman to use premises provided by his employer as a resting-place, the workman is in the course of his employment while using the premises." (see L. & N.E.R. v. Brentnall)⁽²⁾

9. There are a few subsidiary matters that have to be dealt with before I pass on to the next main issue. It appears that the First Respondent though described as a partner of a firm called Tung Yiu, is in fact not connected with it. However this amounts to nothing more than erroneous description of a party. This application is made against the First Respondent personally and not against Tung Yiu. In my view the error does not affect the application in any material way. The next matter is that whilst denying that the Applicant was married to the deceased and that the named dependants were fully dependent on him, the Respondents and the Intervener have adduced no evidence to rebut the Applicant's evidence affirming these facts. On the amount of wages earned by the deceased, the widow's evidence of an average of $420 per month is probably exaggerated. I prefer the evidence of Mr. Hui Cheung, who said he worked not more than 15 days in any one month and that the deceased's working schedule was much the same as his. Giving Mr. Hui Cheung's evidence the most generous and favourable interpretation, that is, assuming that he was paid for three eight-hours shifts in any one day for fifteen days in a month, his average income would be $360.00 per month, and this I find to be the deceased's average income.

10. I now turn to the vexed question of whether or not the deceased died by accident which arose out of his employment. The deceased was, on the evidence of his widow and his Identity Card, about 62 years of age at the time of his death. According to the evidence of Dr. Susan Leong, the Medical Officer at Queen Elizabeth Hospital who performed the post-mortem on the deceased, death was due to ruptured arch of aorta. The rupture measured 1 1/2 inches lenially which indicated a degree of suddeness in the occurrence of the rupture. She also found multiple atheromatous patches (i.e., abnormal changes in the walls of the arteries) in the arch of the aorta. The pericardial (i.e., the sac that envelopes the heart) was filled with blood and blood clots. The heart was pale due to the loss of blood as a result of the rupture of the arch of aorta. The coronary arteries were brittle in parts. There was an aging process seen in the coronary arteries which was normal for some old persons. In such a case, the doctor said, the patient would feel a certain discomfort or uneasiness in front of the chest when there was about to be a rupture. The patient would receive very little warning of the rupture and he would not have the time to consult a physician. Dr. Leong further said in evidence that it could be that the deceased began to suffer from weakened arteries some ten to fifteen years before his death, and that in her opinion he could have died any time at any place. As the weakened artery was in a very advance stage, he could have died whilst staying at home because the rupture could have taken place with such very minor strain as strolling on level ground, or even with no strain. The doctor ended her evidence thus : "Death could occur either immediately after strain or after a gap of time. I cannot pinpoint it. There could have been a delayed reaction from the strain."

11. The meaning of the term "accident was considered by me in Yip Ho v. H.K. & Kowloon Wharf & Godown Co. Ltd.⁽³⁾ wherein Lord Mcnaghten's definition in Fenton v. Thorley & Co. Ltd.⁽⁴⁾ was followed. Lord Mcnaghten said (at page 448) that the expression "accident" was used in the popular and ordinary sense of the word denoting an unlooked for mishap or untoward event which is not expected or designed. On this definition, a rupture would clearly be described in popular language as an accident (see also Clover Clayton & Co., Ltd. v. Hughes⁽⁵⁾). But the accident must have arisen out of the deceased's employment. There must have been a causal link between the death and the accident. This issue was considered by me in Wong Yau-ho v. Hei Hing Tea House⁽⁶⁾, and by Judge Pickering, more lucidly and exhaustively, in the now well-known case of Ho Woon-king v. The H.K. & Kowloon Wharf & Godown Co. Ltd.⁽⁷⁾. In both cases, Clover Clayton & Co., Ltd. v. Hughes (supra) was followed. I do not propose to cite the familiar judgment of Lord Loreburn L.C. at great length, but it would be useful, as a reminder, to reproduce here a short passage from his judgment (at page 245):-

"It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened, and if the accident is one of contributing causes without which the injury which actually followed would not have followed."

12. In the Clover Clayton case, the deceased suffered from a heart disease so advanced that he might have died without any exertion or in his sleep. He died from the rupture of an aneurism and the death was caused by a strain arising out of the ordinary work of the deceased (i.e., that of tightening a nut by a spanner) operating upon a condition of body which was such as to render the strain fatal. But the medical evidence in the present application is not nearly so precise and definite. Was accident it brought about by the deceased's patrolling or cooking activities (both of which would have led me to say that the accident had arisen out of his employment), or was it brought about by the disease alone? There is no evidence before me showing what brought the accident about. Nor is there evidence supporting the view that the deceased's employment was one of the contributing causes of the accident. In his condition, the deceased's disease would no doubt be aggravated by his work as a watchman, but it is impossible to point to any specific event that was responsible for the change in his condition. Looking at it broadly, it seems to me that the facts in the present case are comparable with that of Ormond v. Holmes & Co., Ltd.⁽⁸⁾. The conclusion that I am constrained to reach is that the applicant has not proved that the accident of the rupture was due to the deceased's employment. I therefore must dismiss her application.

13. On the other hand, should I be wrong in this conclusion and it should the correct view be that the accident had arisen out of the deceased's employment, then on my other findings, I would have awarded and assessed compensation in favour of the applicant and other dependants against the First Respondent at $12,960.00 ($360.00 x 36). I also would have held that the First Respondent was entitled to indemnity from the Intervener under Section 23(2) of the workmen's Compensation Ordinance, Revised Edition 1964. The application against the Second Respondent is in any event dismissed.

14. Costs of the application to First and Second Respondents and the Intervener on Scale V. Legal Aid Ordinance to apply.