Kwan Hei v. Trans Globe Maritime Ltd
Read the full judgment text of DCEC 35/1979 on BabelCite. This District Court judgment was delivered on 21 November 1979.
1. At or about 10.30 a.m. on the 7th April last year, in the course of its voyage through China Sea, the crew cook of m.v. "JAL SEA CONDOR", one Ng Yau, reported for sick leave whilst on duty and thereupon stopped work and rested in his cabin. There was no physician on board. The First Officer assumed the responsibility for dispensing medicine for use by the crew, but it was the bosun and the carpenter who attended to the crew cook at or about 1.10 p.m., and at or about 6.30 p.m. Ng Yau was foun
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DCEC000035/1979 Workmen's Compensation Ordinance - meaning of "personal injury by accident" considered-meaning of "accident" as an untoward event understood in the ordinary and popular sense and looked at from the standpoint of the injured workman - the terms "cause of the injury" and "cause of the injury by accident" distinguished - death of crew member at sea having fallen ill whilst on duty followed by immediate sea burial - no evidence of surrounding circumstances resulting in illness and death - cause of illness and death unknown - illness and death not established as "accidental injury" - presumption under Section 5(6) of the Ordinance held not available to the claimant.
IN THE DISTRICT COURT OF.HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION WORKMEN'S COMPENSATION CASE NO. 35 OF 1979 -----------------
----------------- Coram: Judge Liu, Q.C. in Court. Date of Judgment: 21 November 1979 ----------------- JUDGMENT ----------------- 1. At or about 10.30 a.m. on the 7th April last year, in the course of its voyage through China Sea, the crew cook of m.v. "JAL SEA CONDOR", one Ng Yau, reported for sick leave whilst on duty and thereupon stopped work and rested in his cabin. There was no physician on board. The First Officer assumed the responsibility for dispensing medicine for use by the crew, but it was the bosun and the carpenter who attended to the crew cook at or about 1.10 p.m., and at or about 6.30 p.m. Ng Yau was found dead some eight hours after he had fallen ill at work. At 8.40 a.m. the next day, the deceased was given a sea burial. 2. There was no medical evidence of his condition nor of the cause of his death. The penultimate paragraph of a report filed by the Master dated the 10th April last year, Exhibit P1, reads as follows:
The information given in this penultimate paragraph of the Master's report, richly fraught with errors, is mentioned merely for the purpose of putting it aside. In addition, it does not specify the sourse of the diagnosis. 3. The respondent called a single witness, one Mr. CHAN, who was then responsible for the ship's provisions. Mr. CHAN claimed to have seen the deceased constantly drinking without taking food and, at times, drinking even on duty. However, he met the deceased last on the night before his death and had no personal knowledge of the crew cook's condition at the material time. Therefore, the cause of death is unknown, and so are the circumstances surrounding the onset of the deceased's illness. 4. Section 5 of the Workmen's Compensation Ordinance deals with the liability to pay compensation for "injury by accident" arising out of and in the course of a workman's employment. As a term, "injury by accident" is not altogether easy to understand and has been critically described by Lord Macnaghten in Fenton v. Thorley & Co., Ltd.(1) as a "compound expression". In Fenton's case, Lord Macnaghten was of the opinion that the words "by accident" were to qualify the word "injury", "confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design.". In another case in their Lordships' House, Warner v. Couchman(2), Earl Loreburn L.C. made an apt observation on an identical term in the Workmen's Compensation Act, 1906:
5. Before one turns to consider if a workman's injury "arose out of and in the course of" his employment, the injury must first be shown to be the result of an accident in the ordinary sense of the word denoting an event unexpected by the workman himself. In another words, so long as the occurrence producing the injury was something so unforeseen by the injured workman that he would himself call it an accident, it is an "accidental injury". See Trim School v. Kelly(3). The authors in Willis's Workmen's Compensation 36th Edition offer a definition for the term "by accident" at page 10:
In the second category, the nature of the injury would point to some "element of mischance, mishap, or misadventure"(4) and are often referable to physical exertion or strain. Even if circumstances, known or inferred, can suitably be described in common parlence as accidental, the cause of the accidental injury or "injury by accident" may remain unknown. There exists a fine but real distinction between the two terms, "cause of the injury" and "cause of injury by accident". The former determines the presence or absence of any element of mishap in an occurrence resulting in an injury, and it provides the very basis for testing if an injury is accidental or an "injury by accident". Once "personal injury by accident" is confirmed, the latter will then guide the tribunal in its consequential enquiry into the question as to whether or not such "accidental injury" in fact arose out of and in the course of employment. For instance, a cook sustained a chopper wound on his palm. The effect may be shown to be unlooked-for and unexpected by its cause. The injury will then be an accidental injury, but the accidental injury itself might have been caused while the cook was on duty engaged in his ordinary work, or it might have resulted from the act of a total stranger while he was not on duty or performing work within the scope of his employment. Therefore, an untoward event may not have arisen out of and/or in the course of his employment. Thus, it has been said that "the causes of injury by accident are immaterial, except when considering whether the injury by accident arises out of and in the course of the employment."(5) 6. The observations of Lord Lindley in Fenton's case at pages 453 and 456 should best be read with these two terms in mind:
7. Lord Lindley took the same view that for "injury by accident", either the occurrence producing the injury or the injury itself must be accidental in its broader ordinary sense. His Lordship referred to the proximate cause of the injury (and not "cause of injury by accident") and observed that even if little was known of the occurrence, personal injury arising out of and in the course of employment would prima facie entitle a claimant to compensation. There is no evidence that the illness or death of the deceased arose as well out of as in the course of his employment, and such dictum ceases to command any further real interest. 8. The crucial question to be asked is: Was the deceased's complaint of being sick at 10.30 in the morning "personal injury by accident"? or Was it the result of an occurrence, known or inferred, which may be described as accidental? There is no evidence of the nature and pressure of work, or the working conditions including the temperature of the kitchen and its environmental layout. It has not been established with reasonable clarity that the circumstances leading to or the nature of the deceased's reported illness must be such that it could only be explained as an accident. In conclusion, there is no evidence that the deceased suffered any "personal injury by accident" or that there was any accident at all. 9. Solicitor for the claimant sought to invoke Section 5(6) of the Workmen's Compensation Ordinance which reads as follows:
Section 5(6) would seem to have been taken from Section 7(4) of the National Insurance (Industrial) Injuries Act, 1946 which came into force on the 5th July 1948 and replaced the Workmen's Compensation legislation in the United Kingdom by a system of compulsory insurance. See paragraphs 1187 & 1193, 27 Halsbury's Laws of England, 3rd edition. This subsection alters the burden of proof in favour of an applicant for compensation, but the subsection does not absolve the claimant from having first to establish the occurrence producing the illness as an accident for the burden of proof to shift. See paragraph 1422, 27 Halsbury's Laws of England 3rd Edition and pages 814 and 815, 16 Halsbury's Statutes, 2nd Edition. 10. There is no evidence of any accident. In conclusion, Section 5(6) of the Workmen's Compensation Ordinance is of no avail to the applicant. 11. In Hayman v. Pensford,(6) while scooping out a hole with an iron bar, a colliery repairer fell forward and died hours later, and no liability was adjudged against the employer. In Ritchie v. Kerr,(7) a farm labourer died suddenly without any unusual occurrence, and it was held by the Court of Session that there was no casual link between the deceased's work and his collapse. A fortiori, sudden illness would not be of itself sufficient to found a claim for compensation. In this case, there is not a scintilla of evidence of the manner in which the deceased's illness was caused or induced, and "no one out of a Law Court"(8) would be in a position to say that the deceased met with an accident. 12. The illness of the deceased has not be shown to be an "injury by accident". There was no evidence of any element of mischance, mishap, or misadvanture. The application therefore fails and must be dismissed. 13. I would now proceed to record findings of fact which otherwise would have been made, should my decision in law be elsewhere reviewed. The applicant told the Court that she had brought up the deceased as a member of her own family in China, and the deceased was then dependent upon the applicant for his support. They came to Hong Kong together in 1962, and thereafter they had never severed their tie. The applicant's evidence on the contributions made from time to time by the deceased was imprecise, but the substance of her evidence, which I accept, is that apart from odd jobs at irregular intervals lasting not more than five to ten days a month, she was dependent on the deceased. I find as established the de facto mother/son relationship. It is incumbent upon the Court to use its own knowledge of local conditions in ascertaining the standard of living, as a question of fact, that obtains among persons of the same "class and position" as that of the claimant. See definition of "Dependants" in Section 3 of the Workmen's Compensation Ordinance; The Hain Colliery Co. v. Davis(9) and Keane v. Hount Vernon Colliery Co., Ltd.(10); and the recent decision of this Court in the case of Yeung Yiu v. Incorporated Owners of Cheung Hing Mansion(11). 14. Rental paid by the applicant was $55 a month. There was the use of the telephone at $32 per month with another $40 per month for water and electricity charges. The provision of funds by the deceased to the applicant for purchase or installation of a refrigerator, a television set and a telephone are not matters of relevance for her partial dependency. Half of $127, being these recurrent monthly household expenses of $55, $32 & $40, is approximately $60 per month. In addition, she would require $300 for food and $100 for transportation, daily necessities, clothing, etc. at the time of the death of the deceased last year. In all, her own maintenance would amount to $460. I also find the applicant as earning herself between $150 to $200 per month in 1978. I would assess her earnings as at $175 a month on the average. Her monthly maintenance of $460 less her average monthly earning of $175 would yield a deficit balance of $285 per month to be met by the deceased's contributions. The applicant is 64, and the deceased was 46 or 47. I would in this case allow a four years' purchase if I were to find against the respondent. 15. But in the circumstances, the application is dismissed with costs on the upper scale.
WCC 35/79 2.11.79 - Court - C.A.V. 21.11.79 - Court - Written Judgment delivered and handed down. Order: Application dismissed with costs on the upper scale. Cases cited on Judgment:
Cases referred to in submissions by Mr. Clough:
(1) 1903 A.C. 433 at page 448 (2) 1912 A.C. 35 at page 38 (3) [1914] A.C. 667 (A majority decision by four to three) (4) per Lord Robertson in Fenton's case, ibid, at p.452. (5) Vide p.10 Willis's Workmen's Compensation, 36th Ed. (6) [1932] 25 B.W.C.C. 37. (7) 1913 S.C. 613. (8) per Lord Robertson in Fenton v. Thorley ibid. at p.452. (9) 1925 2 K.B. 438 (10) 1933 A.C. 309 (11) Workmen's Compensation Case No. 32 1979, judgment of which was delivered on the 2nd November 1979. |