Ma Kit Ching Veronica v. Attorney General

DCEC000122/1982

Employees' Compensation - accident to ICAC officer during tour of duty visits in U.K. - work substantially performed in Hong Kong - whether accident abroad can give rise to claim for compensation in Hong Kong - death occurring whilst victim sleeping in guesthouse bedroom-not required to be in that accommodation - whether in circumstances of the tour resting was preparation for next duty visit and a natural incident of the work.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

Workmen's Compensation Case No. 122 of 1982.

In the Matter of an Application between

Coram : Deputy Judge P. F. Grindey in Court

Date:

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JUDGMENT

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1. This case concerns a fatal accident to Mr. Anson CHE Tak-ying, an officer of the ICAC, who died in a guesthouse in Edinburgh, some time between 11 p.m. on 11th February and 10.30 a.m. on 12th February 1982. The cause of death was acute carbon monoxide poisoning due to a blocked flue behind the gas fire in his bedroom. The reason for his being in the United Kingdom at that time was that he was fulfilling a programme of duty attachments and training courses arranged for him by the ICAC. He had been nominated for this course, and had agreed to go, although not obliged to do so, and it is agreed that the programme was undertaken for the purposes of and in connection with his employment with the ICAC. At the time of his death he had just completed one duty attachment in Manchester, on the morning of 11th February, and he was due to commence another attachment at 10.30 a.m. on 12th February in Edinburgh. It is claimed that at the time of his death a number of persons were partially dependent upon him.

2. I will approach the first question in the manner adopted by Mr. Neoh in his very helpful and painstaking review of the law and relevant authorities. I would agree with Mr. Neoh's proposition that the question is one of statutory interpretation, in which however assistance can be derived from a number of persuasive authorities.

3. I am first asked to consider whether the Ordinance itself expressly imposes any territorial limitation. That is clearly not so. S. 5 (1) which provides for compensation begins :

"If, in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall ........ be liable to pay compensation .........."

This section on the face of it provides that compensation will be paid provided the three elements of employment, accidental injury and "arising out of and in the course of employment", are there, and no territorial limitation is imposed. Reference to the meanings of "employee" in s. 2 and "employer" in s.3, and to s. 21 which deals with the jurisdiction of the District Court in employees' compensation, similarly does not disclose a territorial limitation. The expressions "employment" and "personal injury by accident" are not defined.

4. S. 29 deals with the application of the Ordinance to masters, seamen and apprentices to the sea service. The first two subsections read as follows :

S.29 (1) is based on s. 7 of the 1906 English Act, and more will be said of this later, but it will be noted that it states simply that the Ordinance shall apply to the persons therein described subject to the modifications which are then listed. Of these modifications (a), (b), & (c) of s. 29 (1) are clearly procedural exemptions designed to assist seamen and others who by reason of the nature of their employment might have difficulty in meeting the normal procedural requirements, and (d) and (e) provide that compensation shall not in effect be duplicated in the circumstances mentioned.

5. S. 29 (1) may be capable of two interpretations, i.e. (a) that it extends the application of the Ordinance to seamen and others subject to the proviso and the modifications which are thereinafter set out, or (b) that in the case of seamen etc. the normal rules are modified in the ways that are described. Doubt might be removed if the sub-section said either "The act shall apply to ..... seamen ....... but only in the following cases and subject to the following modifications " or " In the case of ..... seamen ..... the following modifications shall apply." However the position of the second comma in the sub-section may be significant.

6. If the interpretation to be adopted is that the section extends the Ordinance to seamen who would not otherwise be covered by it, it seems a little curious that the modifications to that extension in fact are not limitations on that extension (as far as sub-paragraphs (a), (b) & (c) are concerned) but a further extension of relief, i.e. procedural difficulties are lightened. On the other hand if the section merely states what modifications apply in the case of seamen it is to be noted that no other section refers to circumstances in which an accident might occur outside Hong Kong, although some procedural relief is given elsewhere. This is supplied by s.14 (1)(b) which provides that defect in giving proper notice shall not be a bar if the defect is due to mistake, absence from the Colony, or other reasonable cause. The circumstance of absence from the colony as being an excuse for not giving proper notice, in a separate section from the section relating to seamen, is not inconsistent with the proposition that an accident occurring outside the colony might give rise to a claim for compensation.

7. In my view sub-section 2 gives support to the proposition that s.29 extends the jurisdiction of the Ordinance. It is noteworthy that it states that the Ordinance, not the section, applies to the person therein described, but unlike sub-section 1 does not, at least expressly, refer to any modifications. Nevertheless there would seem to be no reason why the modifications should not also be applicable in the case of such a person. This sub-section has a corresponding sub-section in the 1925 English Act s. 35 (4) upon which s. 28 (3) of the original Workmen's Compensation Ordinance was presumably based, but not in the 1906 Act. However it is to be noted that in the 1925 Act the section comes under a part headed "Application to Special Classes of Persons" and immediately following sections dealing with the application of the Act to workmen in the employment of the Crown (armed services being excepted) and to men being trained or engaged in rescue work in mines, which sections were not enacted in the 1953 Ordinance. This part of the English Act of 1925 thus appears to deal with special types of employees rather than employment and may not provide a good deal of assistance as to whether there is a territorial principle of employment, but it may be for a similar reason that the Hong Kong Ordinance has that provision, i.e. to show what kind of employees can be covered by the Ordinance, without going into questions of territoriality.

8. S. 30 (1) reads :

"If the employer submits or has agreed to submit to the jurisdiction of the Court, then notwithstanding that the accident causing the personal injury occurred outside Hong Kong, this Ordinance shall apply, subject to the modifications in subsections (2), (3) and (4), to seamen and apprentices to the sea service who are employees within the meaning of this Ordinance and, having been recruited or engaged in Hong Kong, are members of the crew of a foreign ship."

9. At first sight this appears to lend some support also to the proposition as to s.29 but it is not relied on by Mr. Graham, and I think rightly, because the words "notwithstanding that the accident causing the personal injury occurred outside Hong Kong" must be read with the other factors of it being a foreign ship and the employer having submitted to the jurisdiction of the Court.

10. Having considered these points and if I am allowed to come to my own view of s. 29 I wood be inclined to regard it as not in itself extending the application of substantive law, but merely modifying that law and the procedure to suit the circumstances of seamen and their kind. I am adopting the words of R. L. Gilbert the author of an article, to which Mr. Neoh referred me, in the Australian Law Journal Vol. 11 dated 12th November 1937 which examines the relevant legislation and cases. This is of course is the view which Mr. Neoh would urge me to take, for it is his case that although the Ordinance deals in the main with accidents occurring within the territorial boundaries of Hong Kong in fact the true construction of the Ordinance is that it is the 'situs' of the employment which decides the question of jurisdiction. Thus, he argues, the Ordinance will apply to an employment which is substantially to be performed in Hong Kong, and even when in the course of that employment an accident occurs overseas, then provided that the other necessary factors are there, compensation may still be claimed in respect of that accident.

11. As an extension of this argument, and in support of the view that the Employees' Compensation Ordinance merely treats seamen as a special procedural case Mr. Neoh invokes the Contracts for Overseas Employment Ordinance, Cap. 78. With the addition of this Ordinance, he argues, there is now a comprehensive scheme within the legislation to deal with most if not all employed persons. Thus Cap. 282 deals with

12. I have considered this point, but I think I must reject it for the reasons that certain types of employees are still outside the so-called scheme, Cap. 78 is a relatively modern piece of legislation but there is no indication that when it was extended it was so to speak closing the loopholes in such a scheme, and whilst it appears to be designed for the protection of manual workers it does not lay down any compulsory compensation, but merely states what matters are to be included in their contracts, as to most of the terms of which the parties still have a free hand.

13. Mr. Neoh argues that in the Employees' Compensation Ordinance the accent is generally on "employment", particularly the words at the commencement of s. 5 "..... in any employment" and the marginal notes to s. 29 and s. 30. It should follow therefore that any limitation to be read with the Ordinance should be in respect of employment. The Crown is therefore wrong in seeking to place the limitation on "personal injury by accident". The Ordinance should not be interpreted in this way unless its terms are so clear as to remove all doubt, because such an interpretation would lead to some absurd results. And Mr. Neoh quotes two examples of accidents that would be without remedy if the Crown's argument should be correct : (a) an accident to a customs officer who strays outside territorial waters whilst chasing a vessel suspected of smuggling and (b) an accident to Crown Counsel appearing in the Privy Council in London in connection with a Hong Kong Government case. Mr. Graham accepts that these would be harsh decisions, but maintains that this is the law.

14. As a final point to this side of his argument Mr. Neoh urges me to have regard to s. 19 of the Interpretation and General Clauses Ordinance which states that an Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit. This particular provision is peculiar to Hong Kong and thus cases on similar legislation elsewhere may not be entirely relevant if the legislation is subject to different principles of interpretation. The construction he advocates would not, he suggests, do violence to the language of the Ordinance and it would be consistent with the principles stated in s.19.

15. Of the cases that relate to this question the first to consider is that of Tomalin v. Pearson (1909) 2 K.B. 61. This is a case on the English Statute of 1906 and it decided that no compensation was available in England for the dependants of a worker who died whilst engaged in performing a contract of service in Malta. From the known facts of the case it must be assumed that the work was to be done wholly or substantially in Malta, so that on either of the interpretations which have been argued before me no compensation would be payable. However because of the judgments of at least two of the Judges of the Court of Appeal the case is regarded as having decided that compensation under the English Acts will not be awarded in respect of an accident that occurs outside the United Kingdom.

16. The judgment of Cozens-Hardy M.R. contains the following passage :

" What is the ambit of the statute (the Workmen's Compensation Act 1906) and what is the scope of its operation? It seems to me reasonably plain that this is a case to which the presumption which is referred to in Maxwell on the Interpretation of Statutes in the passage at p. 213, which has been read by Mr. Waddy, must apply : "In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate beyond the territorial limits of the United Kingdom". But if I had any doubt on the case apart from the section which I am going to refer to, that doubt would be removed by reference to s.7 of the Act itself, in which there is an extension of the operation of the Act to accidents occurring outside the United Kingdom. It has a very guarded and a very limited application indeed. It applies to "masters, seamen, and apprentices to the sea service and apprentices in the sea fishing service provided that such persons are workmen within the meaning of this Act, and are members of the crew of any ship registered in the United Kingdom, or of any other British ship or vessel of which the owner or .... managing owner or manager resides or has his principal place of business in the United Kingdom," subject to certain modifications. So that, even in the case of seamen, when they expressly desire to include them, they limit and confine it most carefully to persons who, and who alone, could claim to be entitled to the benefit of this Act. In my opinion the present claimant, who seeks to enforce her statutory right in respect of an accident that occurred in Malta, has not any right to claim the award which she is claiming. In my opinion the appeal must be allowed".

17. Fletcher Moulton L. J. delivered a concurring judgment and said that the operation of the statute applied to the United Kingdom alone :

"The accident must be one happening in the United Kingdom to a person there who has the status of a workman to some employer who, in some way or another, is made liable to the jurisdiction of this Act. If that had been so, then I think the widow would have had a good claim, but here it is clear the accident did not happen within those local limits, and in my opinion the decision of the county court judge cannot be upheld."

18. Although Farwell L.J. stated that he was of the same opinion his judgment is rather differently worded. In referring to the Act of 1906 he states :

"To my mind the words "any employment" (in s.1 (1)) must be restricted to employment within the ambit of the United Kingdom or on the high seas as provided by s.7 .... even if a workman could claim to be such within the definition of s.13 so far as regards a contract entered into in England, that would not extend the ambit of the employment which, as I have already said, must be restricted to employment within the United Kingdom or high seas as already stated; in other words, the generality of the term "workman" in s. 13 is limited by the restriction of the term "employment" apparent from the rest of the Act.

It is not, perhaps, absolutely immaterial to point out that absence from the United Kingdom is one of the excuses for not giving notice within six months under s.2, sub-s. 1 (a).

I agree that this appeal must be allowed."

19. It will be noted that this judgment does not refer to the place of the accident, but seems to be based on the place of the employment. Nevertheless if the learned Lord Justice was enunciating a different principle it would be surprising that he did not make this more clear.

20. In seeking to reconcile this case with his argument Mr. Neoh submits that this case should really only be regarded as an authority for its facts, as to which he has no quarrel. He submits that the reasoning of Farwell L.J. is so different that there is no common ratio decidendi except that given by the Law Reports editors in the headnote, i.e. a decision on those facts. It was pointed out by Mr. Graham that in the argument before the Court of Appeal Counsel for the workman's widow did pose the case of a chauffeur or valet engaged in England who meets with an accident whilst temporarily abroad with his master, so that the notion of employment substantially to be performed in England was in the court's contemplation. However Mr. Neoh says that counsel in that case was obliged to invoke a principle wider than could be applied to those facts, the decision in Tomalin could only truly be a decision on the facts and thus the judgments, in so far as they are to be interpreted as stating that an accident occurring outside the United Kingdom will never give rise to compensation, are basically dicta. Mr. Neoh argues further that the judgment of Cozens-Hardy M.R., whilst said to be based on the presumption referred to in Maxwell on the Interpretation of Statutes, in fact is an application of the rule expressed by the maxim " expressio unius exclusio alterius " , i.e., so far as I understand this argument, because the act made special provision for a class of persons, seamen, in view of the nature of their employment (accident to whom could occur outside the United Kingdom), other forms of employment, e.g. employment in Malta, were not covered by the Statute. In this way he seeks to show that the judgment of Cozens-Hardy M.R. is explainable on the basis of the doctrine of the place of employment, and suggests that a general principle emerges from this case that if the employment is outside the jurisdiction then the court must find that it is not covered by the Act unless the employment was that of seamen within the definition of s.7 of the 1906 Act (s. 29 of the Hong Kong Ordinance). Much as I admire this rather ingenious argument I feel that it would be a strain on the language of these judgments to make such an interpretation. I think that the judgments of the Master of the Rolls and Fletcher-Moulton L. J. must be regarded as indicating that an accident which occurs outside the United Kingdom will not give rise to compensation. That of Farwell L.J. does seem to expound a principle based on the situs of the employment but this judgment is not expressed to be in dissent to those of the other members of the Court of Appeal. Mr. Graham argues that the situs of the employment in this connection simply means the place where the particular work giving rise to the accident is, i.e. the employment and the accident must always be in the same place. I would agree with Mr. Neoh that it is difficult to extract a common principle from the three judgments but I must regard at least two of these judgments as against him. I think Mr. Neoh is on stronger ground when he urges me to consider the difference in the circumstances obtaining in 1909 and the present, the fact that the act then only extended to manual workers with very little opportunity to travel from their usual place of employment, the liberal interpretation that s. 19 enjoins me to apply, and subsequent decided cases.

21. The next case after Tomalin is Schwartz v. India Rubber Gutta Percha and Telegraph Works Co. Ltd. (1912) 2KB 299. There the Court of Appeal, which again included Cozens-Hardy M. R. and Fletcher-Moulton L.J., decided that no compensation was payable in respect of the death on the high seas of a workman who was engaged to proceed to Teneriffe to do work there. The basis of the judgments was that as the case did not come within s.7 of the 1906 Act the workman was not covered, thus Tomalin's case was followed, and Buckley L. J. also held that s.7 showed that the Act did not extend to a British ship for if it did the section would not have been necessary. The principle of this case appears to be an application of the "expressio unius" rule as Mr. Neoh suggests, but it may be a stronger authority against him in so far as it is not clear from the facts stated in the judgment whether the deceased was in fact substantially or even partially employed in Britain, and, as Mr. Graham points out, whether or not this was so, that particular fact was apparently not regarded as important enough to mention.

22. Some support for Mr. Neoh's proposition is found in the case of Krzus v. Crow's Nest Pass Coal Co. (1912) AC 590. This was a Privy Council case from British Columbia which decided that the widow of an Austrian workman who died following an accident in the course of his employment in British Columbia was entitled to be paid compensation despite the fact that she was at all material times residing in Austria. The judgment of  their Lordships referred to the Tomalin case and the passage from Maxwell cited therein and went on :

"The principle embodied in the passage was directly applicable to the case in which it was cited, because there it was sought to apply a statute of the United Kingdom to an accident happening in Malta, arising out of an employment carried on in Malta. So to apply the statute would, indeed, amount to making it operate beyond the territorial limits of the United Kingdom. And the Court of appeal held, quite rightly in their Lordships 'view, that this statute did not apply to such an employment."

The Lordships then distinguished the case before them as one where it was not insisted that the provincial statute should operate extra-territorially. It is easy to see from the passage quoted why this case has been cited by both Mr. Neoh and Mr. Graham in support of his case. The first sentence cited refers to an accident happening in Malta (and thus appears to support the Respondent's case), arising out of an employment carried on in Malta (which words must assist the Applicant). What appears to be of greater significance (and comfort to the Applicant) is the statement that the Court of appeal had held that the Statute did not apply to such an employment. The judgment does not distinguish between the individual judgments in the Tomalin case but it appears to adopt the reasoning of Farwell L.J., perhaps even to refine it. In so far as it can be claimed to approve Tomalin, that part of the judgment must be obiter, because compensation was allowed in the Krzus case.

23. The next case is a decision in effect of the Irish Court of Appeal, i.e. the Supreme Court, in Keegan v. Dawson (1934) Irish Reports 232. This concerned an accident to a groom, employed in Ireland, whilst the groom in the course of his employment was temporarily in England. The Court unanimously decided that compensation was payable under the 1906 act which then applied to Ireland, but two judges rejected the majority decision in Tomalin whilst the third approved it but found for the applicant on a different ground. Kennedy C.J. reviewed the authorities and declined to follow the decision in Tomalin, or what he regarded as the decision of the majority of that Court. He felt unable to accept either the reasoning or the conclusion of Cozens-Hardy M.R. in which Fletcher Moulton L.J. concurred. He regarded s. 7 of the 1906 Act as merely prescribing the modifications necessary for the purposes of its application to the persons therein described, and not as implying that British ships were otherwise extra-territorial for the purposes of the Act. He quoted the example of an English nanny on an English ship having an accident whilst temporarily outside the geographical area of Britain (an example very similar to those quoted by Mr. Neoh) and refused to accept that the Act must be construed in such a way as to deny compensation in such a case. He considered the quotation from Maxwell to have been misconstrued and added :

"One is not surprised to find Farwell L.J. standing on a different reason for his opinion, or Lord Atkinson (delivering the judgment in the Krzus case) boldly stating the decision as resting upon a ground which certainly was not that given for the opinion of the majority of the Court."

He attached importance to the fact that the passage from Maxwell quoted by Cozens-Hardy M.R. had left out the words 'on its subjects' following the word 'operate'. He referred to the well established presumption that the legislation does not intend to exceed its jurisdiction, the legislative jurisdiction of the State extending over all its subjects and their property within the territory of the State. The Workmen's Compensation Act in effect imposed on obligation on the employer to insure the workmen against a certain eventuality. He vent on :

"I know nothing arising out of the comity of nations, no rule of international law, which forbids a State to impose on its own subject within its own jurisdiction, an obligation to insure another of its subjects, or indeed anyone else, against the consequences of an event wherever happening. The State exercises no jurisdiction over, the legislation does not operate on, the accident or event on the happening of which the intra-territorial obligation arises.

It may be that in the case of a contract for service to be rendered altogether in a foreign country, there may be something more to be argued under the section. But that is not the fact in the case before us and I refrain from expressing a final opinion upon such a case.

Here, however, we have a contract of service made within the State, for service to be rendered substantially within the State (the temporary absence being incidental and necessary to the employment at home), and an obligation imposed by statute upon the one party a resident subject of the State and a correspond-ing right given by the statute of the other party also a resident subject of the State, both justiciable in the Courts of the State and according to its laws, ........ . The imposition of such an obligation is within the jurisdiction of the Legislature of the State, and within the competence of its Courts to enforce against a citizen of the State. There is, therefore, no foundation for the presumption suggested that the Legislature cannot have so intended."

24. In an equally stringent attack on the decisions in Tomalin and Schwartz, FitzGibbon J. stated that the decisions were founded on a misapplication of a passage from a text book and otherwise unsupported by argument. He said :

"I know of no authority for the proposition that statutes of the United Kingdom are necessarily, or even presumably, limited to the territorial limits of that Kingdom, where the subject-matter may reasonably require a wider ambit."

He went on to expound the view (not relied upon by Mr. Neoh) that the British Legislature had power to legislate for its subjects all over the world. Dealing with possible territorial limitations he said :

"....., it seems to me utterly unreasonable to refuse to apply the provisions of the Act to an Irish workman and an Irish employer, between whom the relation of employer and workman has been created by a contract of service entered into in the Irish Free State ....."

He then illustrated this view with a travelogue of journeys undertaken by certain routes in Ireland, the full flavour of which is no doubt lost on persons not well acquainted with the geography of the Emerald Isle, but serving to emphasise the wholly inappropriate element of chance that would affect the employee's rights depending on which side of the border the accident may have occurred.

25. Later he makes a comment which is perhaps particularly relevant in Hong Kong in view of s. 19 of Cap. 1 :

"Many hard things have deservedly been said by Judges about the framers of Acts of Parliament, but I refuse to impute to the legislators who passed the Workmen's Compensation Act an intention to create the hardships and absurdities which are necessarily involved in the construction for which the respondent contends, when the language of the statute is admittedly susceptible of an interpretation which will avoid them all, and which is in complete accordance with what I believe to be "the history, the object, and the subject matter of the Act",

viz. : compensation to workmen for injury by accident arising out of and in the course of their employment, under a contract of service entered into within the jurisdiction of the Legislature, by parties, one of whom at least was subject to the Legislature, and to be performed, at least in part, within its jurisdiction".

26. The words 'at least in part' seem to contemplate a wider principle than the Applicant before me would have me find, unless the 'part' is to be the substantial part. FitzGibbon L.J. shares Kennedy C.J.'s view of s.7, but appears to regard Krzus's case as unqualifiedly approving Tomalin, although he regards the approval as purely obiter. He also makes the valid comment that Article 2 of the Schedule to the Workmen's Compensation (Anglo-French Convention) Act 1909 appears to support the view that the Legislature believed that English workmen temporarily employed in France by English employers had rights to compensation in England for injury by accident. This Article enacts that reciprocal rights to compensation will not apply if the temporary employment has lasted less then 6 months, and such employees will then only be entitled to the compensation provide by the law of their own state. It would thus be surprising if in fact the Legislature intended that no compensation should be available in such a case.

27. The third judgment, of Murnaghan J. is of no assistance to the present case except that it accepts entirely the reasoning in Tomalin without distinguishing between the judgments.

28. The final case to consider on the question of territoriality is Mynott v Barnard [1939] 62 C.L.R. 68, an Australian High Court of Appeal Case. There the Court decided that no compensation was payable under the Victorian Workers' Compensation Act in respect of the death in Victoria of a workman who had been engaged in Victoria to do work wholly in New South Wales and had met with an accident in the course of his employment there. Thus the facts were substantially the same as Tomalin, and once again the decision is correct according to either, of the propositions advanced before me. Furthermore I note with interest that in the argument before the Court counsel for the respondent employer submitted that some limitation should be put on the general words of the statute (similar to Section 5(l) of Cap. 282) so that "in any employment" must mean 'in any employment in Victoria', but that this did not necessarily exclude all accidents outside Victoria. It however required the Court to search for the local character of the employment, viz. the domicile and residence of the parties, the place where the contract was made, or was to be carried out and then say whether it was a Victorian employment. Counsel then referred to the United States doctrine of the locality of the business, reference to which was also made in the judgments of the Court.

29. Thus one might infer that counsel for the respondent might have regarded his case as very much more difficult if the employment in this case had been substantially carried out in Victoria. Additionally the facts of Keegan v. Dawson were so different in the material particulars from Mynott's case that the former case could only be invoked for its criticism of the Tomalin case in its broad interpretation. In a vigorous judgment Latham C.J. listed and considered the possible territorial limitations that it was conceivable to impose in construing the statute, reviewed the previous authorities in the course of which he attacked the criticism of Tomalin in Keegan v Dawson, and came to the conclusion that Tomalin was the decision to follow on the ground that it laid down a simple and readily applicable rule, that criticisms of the decision wore not in substantial matters well founded and that legislation which came into being after the decision mist have had this decision in its contemplation. Although the judgment clearly follows Tomalin the learned Chief justice had said (p.76) that the question of construction was one full of difficulty and no clear general rule had yet been established for the solution of such a question. In his concluding paragraph he states that he is pressed by the difficulty of selecting one from the many criteria of applicability which are suggested, but finally decides on the broad interpretation of Tomalin.

30. In dealing with the various criteria of applicability the learned Chief Justice dismisses the tests of domicile or residence of the persons concerned, and the place of death, and rejects after consideration the tests of where the contract was made and the governing law of the contract. He then refers to the test abstracted from certain American decisions of whether the contract of employment has a real and substantial connection, or the most real and substantial connection with Victoria, and the similar concept of whether the status of the parties as employer and worker arose under Victorian Law, for which it was necessary to consider the place where the contract was made, the place where the parties resided, the place where the work was to be done and any other circumstance tending to show a particular connection with Victoria. Place of contract and place of residence had already been considered separately, but although the factor of work being done in Victoria in whole or in part was listed at the outset as one of the territorial limitations to consider it only appears to receive attention as an element in the status concept, On this the learned Chief Justice said :

"The economic or social basis of this doctrine may be attractive, but I cannot discover in the Victorian statute any legal basis for adopting it. Further, this rule is rejected or not yet applied in many of the American States and it is vague and ill-defined in its terms. The argumentative basis for the judicial introduction of such a new test of territorial applicability of statutes cannot be said to have been satisfactorily established."

31. In his reference to Keegan v. Dawson the learned Chief Justice discounted the omission in Tomalin from the quotation from Maxwell as unimportant and doubted the validity of FitzGibbon J.'s interpretation of a worldwide limitation to 'subjects'. He regarded S.7 of the 1906 Act as merely previsions dealing with seamen and throwing no light on the question to be answered. He then expressed himself as unable to agree with the statement in Keegan v. Dawson that Farwell L.J. in Tomalin's case had placed his decision on a different ground and that the approval of Tomalin by the Privy Council in Krzus's case applied only to the judgment of Farwell L.J. At page 74, after quoting the passage from Krzus's case already referred to, the learned Chief Justice stated that in Tomalin's case the contract of employment was made and the relationship of employer and employee established in England, and accordingly the reference to "employment carried on in Malta" must describe the work actually done under the contract and not the contract itself. Therefore the statement in Krzus's case is to be regarded as approving the decision in Tomalin that the Act was limited to accidents happening within the United Kingdom. At page 85 he repeats the view that the use by Farwell L.J. of the word 'employment' in fact corresponds to 'work'. So far as I understand this reasoning it seems to be that the word 'employment' must necessarily have only two possible meanings in this context. The first is the actual contract of employment or the establishment of the relationship of employer and employee, and as this was in fact made in England, clearly this could not be the meaning here as otherwise Farwell L.J. would have found for the workman. Therefore the only other possible meaning to be given to "employment" is ''work" and because the work was in Malta and the accident took place in the course of that work, the workman was unable to recover. This is the same as Mr. Graham's proposition that where the work is, the employment is. With due respect it seems to me that 'employment' must surely be capable of more than one alternative meaning in this context and 'work' simpliciter is not the most likely. There are many meanings assigned to 'work' in the Dictionary, and 'employment' is one of them, but 'work' is not a primary meaning of 'employment'. I do note, as Mr. Graham points out, that "in the course of the employment" has been interpreted (Alderman v. G.W.R. 1937 AC 454 at p459 referring to the case of Davidson v. McRobb) to mean in the course of the work which a man is employed to do. The same passage cites another speech in which 'in the course of employment' is said to be different from during the period of employment, obviously referring to a second meaning of employment. It might be regarded as surprising that one distinguished judge should use the word 'employment' without explaining it to mean 'work', if that were the case, and for the Privy Council to express its approval of that judgment without adding such an explanation.

32. This conception of employment as a synonym for work is not apparently adopted by Rich J, who delivered a brief judgmant dismissing the appeal. He said:

"I think that the facts take the case out of the scope of the operation of the statute. The employment of the deceased was carried out in New South Wales and the accident which caused his death did not arise out of and in the course of a local employment."

I think these words must in their natural meaning be taken to support Mr. Neoh's proposition.

33. The third judgment, that of Starke J., refers to three possible criteria, situs of accident, lex loci contractus developing into the doctrine of localization of the employment, and proper law of the contract. The learned Judge decides to follow Tomalin's case, on the ground, it seems, that if the legislation had intended that an accident occurring outside the territorial limits of the State should give rise to compensation it should have so provided in very clear terms.

34. The judgment of Dixon J. in Mynott's case has been adopted by Mr. Neoh as encapsulating his argument. The learned Judge distinguished between the decisions in Tomalin and said that Farwell L.J. placed the territorial restriction on the word 'employment', and that the Privy Council's judgment appeared to be framed to accord with this view. He does not apply a restricted meaning to the word 'employment'. In fact he described it as 'the continual relationship, not the engagement or contracting to employ and to serve. It is the service; that to which Lord Atkinson applied the expression "carried on".'

35. The learned Judge then mentions an American case, Cameron v. Ellis Construction Co. (1930) 252 N.Y. 394, which he regards as containing the most satisfactory reasoning, consistent with that of Farwell L.J. in Tomalin's case, and producing the same conclusions as the English Court of Appeal. In that case a workman performing work wholly outside the jurisdiction for an enterprise within the jurisdiction was not entitled to recover. It was said :

"The test in all cases is the place where the employment is located. When the course of employment requires the workman to perform work beyond the borders of the State, a close question may at times be presented as to whether the employment itself is located here. Determination of that question may at times depend upon the relative weight to be given under all the circumstances to opposing considerations. The facts in each case, rather than juristic concepts, will govern such determination. Occasional transitory work beyond the State may reasonably be said to be work performed in the course of employment here; employment confined to work at a fixed place in another State is not employment within the State, for this State is concerned only remotely, if at all, with the conditions of such employment."

36. Reference was then made to a case in which it was decided that the dependants of an air pilot killed in a crash outside the State were still entitled to compensation under the law of the State from which the air service was conducted and where the pilot was engaged and lived, which could be the only common-sense decision. He concluded :

"But the principle applied was that formulated in Cameron v. Ellis Construction Co., namely, "that the Workmen's Compensation Law applies only to employment within the State, and that award of compensation may be made for injuries sustained outside the State only where those injuries arise out of and in the course of employment which is located here.

This principle excludes the present case from the Victorian statute. The deceased's employment was not carried out or localized in Victoria but in New South Wales."

37. The judgment of McTiernan J., following the decisions in Tomalin, Schwartz and Krzus without distinguishing between them, does not give further assistance.

38. Thus the judges in Mynott's case, whilst all arriving at the same conclusion, a conclusion which is inescapable on the facts, have not all followed the same path, and the judgments of Rich and Dixon J.J. seem to be lighting the way for Mr. Neoh.

39. The decisions in the cases of Tomalin and Mynott are now no longer of practical importance in their own jurisdictions because the system of compensation has changed in England, and, I am informed, amending legislation was introduced in Australia following the Mynott case. It is thus unfortunate that there are no known decisions on the question during the last forty three years, a period of tremendous political change and social and technological development. Mr. Neoh urges me to have regard in particular to the change in circumstances between the year of Tomalin (1909) and the present. The introduction and advance of air travel is perhaps the most striking of these differences. There is the fact that the scope of the Hong Kong Ordinance has now widened to include virtually all types of employee. These factors may assume more relevance if one is to consider S.19 of Cap. 1 as changing to a degree the complexion of the English and other cases. On the other hand Mr. Graham submits that the Tomalin decision has remained good law since it was decided and no attempts were made to remove its perhaps harsh effect by legislation until the system was changed in England in 1949; it is because of the harsh effect of the decision that attempts were made to get round it in other cases. I do not think that this latter point can be wholly correct, for example the judgment of Dixon J. in the Mynott case, whilst disapproving the broad interpretation of Tomalin, still arrived at the same result that a strict application of Tomalin would have achieved. In none of the cases cited before me has any Court found fault with the decision in Tomalin on its narrow interpretation, i.e. if applied only to an accident outside the jurisdiction arising out of an employment (in the normal use of the word) the whole of which was performed outside the jurisdiction. Mr. Graham also enlists to his cause the fact that in 1980 amendments were made to the Hong Kong Ordinance, to extend its scope. There was an opportunity then, he says, to change the law (or perhaps make it more clear) so as to apply the ordinance to accidents occurring outside the jurisdiction. Mr. Grahmm also submits that the test that Mr. Neoh propounds would present difficulties in its application, compared with the simple test which Tomalin provides, but I agree with Mr. Neoh that the test would be no more difficult than the familiar problem of whether an accident arises out of and in the course of employment.

40. Mr. Graham also says that I should be bound by the decision in Tomalin. It would indeed be a simple matter for me to say that I accept the decision of the English Court of Appeal, and let the matter be argued de novo in another forum if the parties so decide, but I have approached my decision on the basis that I am not obliged to follow Tomalin for the reason that there are a number of highly persuasive authorities to consider. If there were only one authority, or if they were all completely reconcilable my task would be very simple. As it is they conflict. This is the reason for my labours, and I hope they have not been entirely wasted.

41. Clearly if the dictum in Krzus' case provides me with the answer to the question, I need took no further unless perhaps s.19 re still needed to be considered. However Krzus's case has been quoted as an authority for each of the two propositions. My own view is that it favours the Farwell judgment, or even perhaps modifies it to a degree that was not contemplated by the learned Lord Justice. If however no clear principle can be deduced from the Krzus case I am left with conflicting decisions which I regard as being of equal authority, although the only case which is on all fours as to material facts with the case before me is Keegan v. Dawson. Mynott's case which reviews all the previous decisions, is a case which on its facts could only be decided one way, but nevertheless two of its judgments are clearly based on the proposition that Mr. Neoh advances. Of the judgments I have considered I am of the view that those of Kennedy C.J. in Keegan v. Dawson and Dixon J. in Mynott v. Barnard are of the most relevance and assistance in the question I have to decide. I consider these are the judgments I should follow. The circumstances of modern times, the frequency with which some employees now covered by the Ordinance move in and out of the jurisdiction and the absurd result which would be seen in examples too numerous to list comprehensively if the broad interpretation of Tomalin were to apply, together with whatever significance may be attached to s. 19 of Cap. 1, are factors which strengthen my view but I do not rely upon them in coming to my conclusion. It is course essential that all the other circumstances of the accident fulfil the usual criteria for liability to pay compensation to arise, but I consider that provided the work done under the contract of employment is substantially performed within the jurisdiction, and I think that this can be also described by saying that the employment is located within the jurisdiction, and provided that the temporary absence is incidental to the employment, then the fact that the accident occurs during that temporary absence from the jurisdiction will not of itself preclude a claim for compensation under the Ordinance.

42. I thus answer in the affirmative the first question that has been posed, and I find that the employment of the deceased was located in Hong Kong, for there is no doubt that the work was substantially performed in Hong Kong.

43. The next question to be answered poses even greater difficulty for the applicant. At the time of his death the deceased was not actually engaged in a specific duty visit, or it seems, for that matter any specific activity, for it is agreed that as a matter of probability he was resting or sleeping at the time of his death. If he had been resting in his own home when such an accident occurred, clearly no liability for compensation would have arisen. The fact that the accident took place whilst the deceased was on an overseas tour connected with his employment is therefore now enlisted in support of the argument that the accident arose out of and in the course of his employment. There is thus the curious paradox that not only does Mr. Neoh have to surmount the hurdle of the extra-territorial aspect of the case in order to succeed on the jurisdiction point, but having so succeeded, as I have found, he then has to rely to a degree on that extra-territorial aspect or more accurately the fact that the deceased was on a tour of duty away from home, as helping to establish liability in circumstances which would not in the normal case give rise to a claim for compensation.

44. I have been referred to the standard authorities on this question including that of the Hong Kong Court of Appeal in Lam Min and others v. Yau On Construction Co. [1981] HKLR646, which established that the test is whether the event giving rise to the accident was incidental to the work and not an interruption of it. This test has to be applied to the facts of this case.

45. I have no doubt that the actual tour that Mr. Che undertook amounted to work connected with his employment. It is agreed that for this period he was regarded as on duty in that he was paid a subsistence allowance at the duty rate pursuant to the appropriate Civil Service Regulations. Nevertheless it is conceded by Mr. Neoh that he was not to be regarded as being on duty twenty four hours a day during this period. It is agreed that it was necessary for him to spend the night of 11-12th February 1982 in the Edinburgh area, but not in any particular accommodation. Some accommodation was reserved for him, but in the event he chose his own.

46. Mr. Neoh argues that as the deceased had duties to perform in Manchester on the morning of 11th February, and took a 5 hour coach journey from Manchester to Edinburgh on that afternoon, his resting or sleeping in the guest house prior to his next duty visit in Edinburgh on the morning of the 12th February was a natural incident of his work. Although Mr. Che was not to be regarded as on duty all the time, because he was on a continuous tour and there was no specific "clocking on" and "clocking off" in relation to his duties the boundaries between duty time and his own time became somewhat blurred. A rest period between two specific periods of duty could therefore amount to preparation for the next duty. Mr. Neoh concedes that in a sense all recreational activities to a degree (and perhaps I should say in moderation) serve the purpose of refreshing and recharging a person for his work, though explanation might be required for the more unusual circumstances, but he does not have to be concerned with these extremes for the purposes of this case.

47. Mr. Neoh does not have a direct authority for his proposition, and I think that the caces that he has referred to do little to assist him. I hope I may be forgiven for not referring to all the cases in detail, but I think that the rule in the normal case is that the employee cannot claim if at the time of the accident he has "clocked off" or otherwise finished his duty for that day, unless (and this presumably means that he has not really finished his duty) he is required to spend the night in some particular accommodation. I have not been referred to, or been able to discover, a case where an accident occurred to the victim whilst he was resting or sleeping in the required accommodation, but no doubt such an accident might well give rise to compensation in appropriate circumstances. I think the cases involving travelling to and from a place of work, of which of course there are many, introduce another element which is not present in the circumstances before me. To negative that element, or to equate the present circumstances with the travelling cases, it would be necessary to find that the period of rest on the night of 11th/12th Febraary was a natural incident of the work in the manner that Mr. Neoh proposes. I have to say with regret that I do not so find. I do not consider the fact that the deceased was on a continuous tour of duty visits to be so significant as to take the circumstances of this case out of the purview of the normal rules. On the one hand it could be said that resting and sleeping is just as necessary a natural incident of the work and restorative for the labourer who, living at home "... from the rise to set sweats in the eye of Phoebus, and all night sleeps in Elysium".On the other hand it can be argued that a proper period of rest in the evening is not just preparation for the next day's toil, but a natural incident of a mature and responsible person's life. So far as 'clocking off' is relevant I think that Anson Che must be assumed to have been on his own time at the very latest by the time he had moved into the guest house that evening with no specific duties to perform until the following morning.

48. I therefor find that this accident did not arise out of and in the course of the deceased's employment. I may say that I would be happy to be proved wrong, as I have the utmost sympathy for the applicant.

49. Thus in my judgment the Applicant's case fails, but I have been asked to state the amount of compensation that I would have awarded if the claim had succeeded. The dependants were only partially dependent on the deceased because the deceased's wife Madam Ma. Kit Ching also contributed her earning of $10,500 per month to the family income. I accept her evidence as to the manner in which this income was used and find that all the dependants named in the application were partially dependent upon the deceased. The deceased's earnings with housing allowance amounted to $17,700 per month, and 84 months earnings of that amount is vastly more than the maximum compensation available. I am satisfied that there would be power to award the maximum amount in a partial dependency (Hodgson v. West Stanley Colliery 1910 AC 229) and I consider it would have been appropriate to do so in this case. Accordingly I would have assessed the compensation in the maximum figure of $168,000, and adjourned the question of apportionment to another date, to give the parties an opportunity to adduce further evidence or come to an arrangement on apportionment.