Fan See-yuk and Others v. Ocean Tramping Co Ltd
Read the full judgment text of DCEC 102/1972 on BabelCite. This District Court judgment was delivered on 28 June 1973.
1. In this Workmen's Compensation Application, the widow of SIU Ping-mau, a seaman employed by the Respondent Company, the Ocean Tramping Co., Ltd., seeks compensation for the death of her husband which occurred at sea on 23rd May, 1972 when he was serving as a seaman on board the "M.V. Gaopeng".
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DCEC000102/1972 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION WORKMEN'S COMPENSATION CASE NO. 102 OF 1972 -----------------
Coram: N.P. Power, D.J. in Court. Date of Judgment: 28 June 1973 ----------------- JUDGMENT ----------------- 1. In this Workmen's Compensation Application, the widow of SIU Ping-mau, a seaman employed by the Respondent Company, the Ocean Tramping Co., Ltd., seeks compensation for the death of her husband which occurred at sea on 23rd May, 1972 when he was serving as a seaman on board the "M.V. Gaopeng". 2. Madam Fan, the widow applied on behalf of herself and her six children who reside with her and on behalf of SIU Ngan-ho, a nephew who resides in Mainland China. However, the claim in relation to Mr. SIU Ngan-ho was not pressed and this is understandable as it appears from the material sent to the Court by Commissioner of Labour that Mr. Siu himself, when approached, did not pursue any claim. Indeed the evidence of the widow is that he is not a dependant. 3. The circumstances in which the deceased met his death are of great importance and I will set them out in detail hereunder. On 29th April, 1972 the M.V. "Gaopeng" sailed from Dakar to Singapore. On 22nd May the vessel was about two days out of Singapore and at 2.00 a.m. on that date, LAM Lung-ching, the chief officer stated, the deceased SIU Ping-mau knocked on the doors of all crewmen and woke them up and came to his cabin and asked him to inform the Captain and wireless operator to deliver a message to the Company and the Seaman's Union. However, he either gave no reply or said "Nothing", it is not clear from the evidence which he did, when asked what the message was. The chief officer said that the deceased looked sad and that he thought the deceased was "unusual" at that time. Presumably, by this, he meant to say that he thought that SIU Ping-mau was mentally upset. However, Siu went back to sleep and the incident was reported to the Captain at 8.00 a.m. The Captain and the chief officer then interviewed Siu and he appears to have behaved quietly in this interview and the evidence of the chief officer indicates that he did not notice any abnormality at this time. The Chief officer says that all seamen were given the day off on the next day and that Siu slept and ate and sometimes walked to and fro. The chief officer says that at 3.15 a.m. on 23rd the Bosun informed him that Siu was missing. He says that at the time the weather was fine, the sea was calm, the ship was steady and the deck was dry. He also added that the ship had a rail about 3' to 4' high which ran right around the vessel. This evidence is not in exact accord with the Deck Log Book, which was admitted by consent, as it notes that during the first 4 hours of the day there was slight south-east swell. A search was then conducted but Siu was not discovered. The chief officer also said that the normal duty hours of a sailor were 8.00 a.m. to 5.00 p.m. 4. LAM Hi-seng, another sailor, also gave evidence as to 22nd and 23rd May. He said that he heard Siu waking people up by knocking on their doors in the early hours of 22nd. He said, and this is to some extent in contradiction of evidence of chief officer, that the next day, presumably the 22nd, Siu worked as usual and he repeated this during cross-examination. He also said that on the following evening, presumably the evening of the 22nd, he saw him walking to and fro and he later said that Siu had been walking aimlessly to and fro around the ship. It appears that on morning of 22nd he, alone, was assigned to watch Siu from 6.00 a.m. until he woke up and that on the morning of the 23rd, he, with another, was assigned to watch over him from 12 mid-night until 3.00 a.m. 5. He said that when he took another team to watch at 3.00 a.m., Siu was sitting on his bed having a cigarette. He said that during the two occasions when he watched the deceased, he observed no peculiar behaviour. 6. At about 3.15 a.m., the deceased was found to be missing. There is no evidence from anyone as to what happened after 3.00 a.m. The seaman assigned to watch the deceased at that time were not called. I have no doubt and so hold that the deceased met his death having been lost overboard sometime after 3.00 a.m. on 23rd May. 7. The applicant seeks to rely on the presumption raised by S. 5(6) of the Workmen's Compensation Ordinance and the Respondent does not dispute that the employment of a sailor at sea is continuous and that the deceased met his death in the course of his employment. 8. What the Respondent firstly contends is that the deceased committed suicide. It appears to me that before any question of the presumption in S. 5(6) coming into play arises it must be shown by the Applicant that what took place was an "accident" in the sense in which that word is used in the Workmen's Compensation Ordinance. The definition which I adopt as correct is that contained in Willis 36th Ed. p.9 where it states "the mishap or occurence must be looked at from the workman's standpoint, and that whatever its cause or origin, it will be accidental unless it was designed by the workman himself". I refer also in this regard to Hals.3rd Ed. Vol. 27 which states referring to term "accident" in similar legislation that "self inflicted injury such as suicide is not (an accident) unless there is, as a result of an accident or a shock resulting from an accident, a condition of nervous or mental derengement which leads to a man committing suicide." 9. I consider that to show an "accident" occurred the applicant must show that the mishap or occurrence was not designed by the workman himself and that until this is shown S.5(6) does not come into play. However as Halsbury points out in referring to the National Insurance (Industrial Injuries) Act 1946 which contains a similar provision to our S. 5(6), (3rd Ed. Vol. 27 p.807) "there being also a presumption against suicide where a person is found dead in circumstances showing that death occurred in the course of the employment, the burden of rebutting the presumption that death arose out of the employment by convincing evidence would rest on anyone suggesting suicide as a cause of death". 10. What this statement, I respectfully suggest overlooks is that to bring S. 5(6) into play the applicant must establish not merely death in the course of employment but death by accident in the course of employment. 11. In the present case I hold that the onus of proving death by accident rests upon the applicant and that she must satisfy this onus or the presumption in S. 5(6) does not arise. If the applicant can take advantage of the presumption against suicide in discharging that onus, then the burden of rebutting this presumption by "convincing evidence" rests on anyone suggesting suicide. 12. The question the Court must now resolve is whether the applicant in this case can take advantage of the presumption against suicide. The Respondents argue that she cannot as this presumption arises only because suicide is a crime under English Law (I note in passing that since Suicide Act of 1961 suicide is no longer a crime in the United Kingdom) and that if the death takes place where suicide is not a crime then no presumption arises. The Respondent says that this death took place on a Somali ship on the high seas and that the presumption would only arise if it had been proved to the court that suicide was a crime under Somali law. 13. The basis for this contention appears to be a statement by Farwell 5 in Bender v. Owners of Steamship Zent (1909) 2 K.B. 41 at 45 where he said, in relation to a workman's compensation claim "I do not myself suggest suicide, (It had been suggested in the judgment of Cozens - Hardy M.R. in the same case.)" because, suicide being a crime the presumption is against it." Mr. Robertson relying upon this statement argued that as suicide had not been shown to be a crime by Somali law no presumption arose. However, the presumption against crime is only a part of the wider presumption of innocence which presumption is in my respectful view correctly stated in Hals. 3rd Ed. Vol. 15 on p.343 as follows "among the more important rebuttable presumptions of law is the general presumption that all acts and conduct are in accordance with law and morality." A party, therefore, who charges another with any description of wrong doing must always give at least prima facie evidence of guilt before the party charged can be called on for an answer". Again in Art 103 of Stephens Digest of the Law of Evid. the principle is stated as follows - "If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt." 14. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in such action. 15. Lord Wright in Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corp. Ltd. (1942) A.C. 154 stated the position, at p.192, in the following words: "In addition, the ordinary rule is that a man is not guilty of fault unless fault is established and found by the Court. This rule, which is sometimes described as the presumption of innocence, is no doubt peculiarly important in criminal cases or matters, but it is also true in civil disputes." 16. I am satisfied that the presumption of innocence applies not only in crime, but also in civil cases and that it applies to allegations of acts or conduct not only against the law but also against morality. The killing of oneself is prima facie an immoral act and I hold that the presumption of innocence arises when such an allegation is made. I hold that the applicant is entitled to rely upon the presumption against suicide in the present case, and further that there is no evidence sufficient to displace that presumption. Indeed the evidence establishes that at no time did the deceased show any violent or suicidal tendencies. There is certainly no "convincing", nor, indeed, any, evidence to show that the deceased committed suicide. The only alternative to suicide is the present case is death by accident, in accordance with the meaning of the word as it is used in the Workmen's Compensation. Ordinance. Although I do not. for the reasons set out above, need to rely on the decision in Harney v. Ocean Accident Corp. (1905) 2 I.R. 1. I do note that in that decision it was held that death by drowning is prima facie death by accident. 17. I hold that applicant has prima facie established death by accident in the course of employment and that the presumption under S. 5(6) therefore arises in her favour. It must now therefore be determined whether there is evidence to displace the presumption that the accident arose out of the deceased employment. The Respondent argues that there is and relies upon:
18. I refer again to Bender v. Owners of Steamship Zent. In that case, a seaman was lost overboard but no presumption such as is contained in S. 5(6) applied. Cozens Hardy M.R. said (at p.43)
19. In the present case we are, so to speak, dealing with the other side of the coin. We must look to see not whether there is any evidence to establish or from which it can properly be inferred that the death arose out of the employment but whether there is any evidence to establish or from which inferences can properly be drawn sufficient to displace the presumption that the death did arise out of the employment. Such a presumption has been put there by the legislative for the clear purpose of assisting applicants and it cannot be lightly displaced. In assisting me to reach my conclusion in this matter I, hereunder, respectfully adopt the approach, and paraphrase the words, of the Learned M.R. which I set out above: 20. Nobody knows how the accident happened. We know within a little the time at which it happened but, notwithstanding all the enquiries that were made and all the searches that were made, we get no further. Under those circumstances is there any justification for drawing inferences sufficiently strong from the known facts to displace the presumption that the death arose out of the employment. I do not consider there is. There are many contingencies anyone of which is almost as probable as the other. Although the deceased had been placed under surveillance he might have been engaged on some ship's work, at the direction of another or of his own volition, or something incident to his employment, such as cleaning his cabin or fixing a loose line on deck, even at that early hour. No specific evidence was called as to the likelihood of this either being so or not being so. It is conceivable that he went up on deck simply to take a breath of air. Anyone of a number of conflicting possibilities might be so. The fact of the matter is that we simply do not know what the deceased was doing at the time he met his death and I do not consider that inferences of sufficient weight can be drawn from the known facts to displace the presumption in S, 5(6). The test propounded by Lord Devlin in R. v. ...(illegible) Commissioner, Ex parte Richardson (1958) 2 A.E.R. 689 at 691, when dealing with exactly the same words "in the absence of evidence to the contrary", was that the court must ask was there "evidence fit to be left to a jury". 21. I do not consider that in a case such as this where there is no evidence of what actually happened and where the court is being ask to draw and rely upon inferences where other possibilities are clearly open that it can be said that there is evidence which could be safely left to the jury. I hold that the applicant is entitled to rely upon the presumption and I find that the death arose out of and in the course of the employment. 22. I hold the Respondent Co. is liable to pay worker's compensation. 23. I hold that the widow and six children were wholly dependent upon the earnings of the deceased. 24. There was no issue as to quantum which is in the sum of $32,695.20 ($908.20 x 36 months). Compensation assessed and awarded in the sum of $32,695.20 to be paid into court in 14 days in favour of all named applicants except SIU Ngan-ho. 25. Costs to applicant to be taxed under Scale V. Costs of applicant to be taxed under Legal Aid Regulations. 26. Liberty to apply.
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