Chan Yau Wei v. Chuen Kee Seafood Restaurant Group Ltd

DCEC000111/2001

DCEC 111/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 111 OF 2001

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Coram: Deputy District Judge J. Lam in Court

Date of Hearing: 14 - 15 April 2004

Date of Handing Down Judgment: 29 May 2004

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JUDGMENT

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1.The Applicant (Mr. Chan Yau Wei) makes an application against his former employer, the Respondent (Chuen Kee Seafood Restaurant Group Limited) for compensation under ss. 9 & 10 of the Employee's Compensation Ordinance, Cap. 282, Laws of Hong Kong. The Respondent opposes to the application.

2.The amounts of the compensation claimed have been agreed at HK$ 87,321.6 (under s. 9) and HK$ 334,732.8 (under s. 10) respectively.

3.Counsel from both sides (Mr. Pirie for the Applicant; Mr. Chang for the Respondent) agree that the sole issue is whether the Applicant was injured in the course of employment. Mr. Chang concedes that if the accident arose in the course of employment, the presumption in s. 5(4)(a) of Cap. 282 shall operate to deem the accident as also arising out of employment. The compensation applied for will then be payable.

4.The facts of the case are almost undisputed:

(i)The Respondent was a seafood restaurant in Sai Kung. It consisted of 4 levels. There is some confusion in the description of the various levels in the evidence of the witnesses. At last, all agree to name them as: the Ground Level, the 1st Level (mezzanine floor), the 2nd Level and the 3rd Level. All levels were used for catering business. According to one of the Respondent's witnesses, the Manager Mr. Yim Chi Yeung, if there were not many customers only the Ground Level would be open, then the 2nd and the 3rd Levels; the 1st Level (mezzanine floor) was almost the last floor to be used. Although the Applicant says in his statement that he was responsible for catering the two uppermost floors, it is clear from the totality of the evidence that he was required to serve where the customers were.

(ii)The kitchen was on the Ground Level. So was the main entrance. There were toilets on that level and the 3rd Level. There was a staff locker on the 2nd Level. However, there was no direct access from the Ground Level to the upper levels. One had to use the staircase next to the main entrance to go up and down. That staircase provided the only access to all the upper levels.

(iii)Due to the nature of the business, the Respondent set the working time differently for different staff. According to the Manager, Mr. Yim, there were 3 categories of working hours:

Category A: 11:30 am to 3 pm (referred in this judgment as 'the morning session' for convenience) and 5:30 pm to close of business at about midnight (referred as 'the night session'). The period of 3 pm - 5 pm was a rest period (referred as 'the recess'). Mr. Yim says in his statement that recess applied to normal working weekdays only; for holiday working days there would usually be no recess. The Applicant was a Category A staff.

Category B: 1:30 pm to close of business with no recess. Mr. Yim says there was only one waiter, Mr. Fung Chi Kwong, employed for this shift at that time. Another Respondent's witness, Mr. Yung Chi Hung, says he was a chef usually working from about 12 pm to close of business with no recess, unlike the other chef Mr. Chan Chun Kong (another Respondent's witness) who worked according to Category A hours.

Category C: Part-time employees engaged solely for the night session from 5:30 to about 10:30 pm.

(iv)The Applicant says in court and in his statement that his recess started at 2 pm. Such evidence was against the Respondent's witnesses' saying that the recess was scheduled to start at 3 pm. I accept the evidence of the Respondent's witnesses in this regard. I rule that the Applicant has got the time wrong here. I find that the scheduled starting time of the recess was 3 pm, though it might start a bit early or late as circumstances permitted.

(v)The Applicant was employed to work in the restaurant as a supervisor. Despite that name, he was to provide waiter's service to the customers. He first worked in the restaurant in 1999 for more than a year. Then he left the service for several months before returning to start a new employment with the Respondent. After this accident, he was dismissed.

(vi)The Applicant was employed by the Respondent on monthly remuneration. Mr. Yim says wages were paid twice a month. The wages receipt (p. 115 of the Document Bundle) shows that the Applicant got basic wages HK$3,750 (for half a month), allowances and tips. It is agreed between counsel that the Applicant earned more than HK$18,000 a month. .

(vii)The restaurant also provided free meals to the Applicant as an employment benefit. The morning meal was available at 11 am while the dinner was at 5 pm. The Applicant could take the meals or not. If he took the meal, he would have to take it at the Ground Level where the meal was provided at the stated time. If he did not take the meal, he could come as late as when the working hour for that session was to start. There would be no monetary compensation paid to the Applicant if he did not take the meals. In court, the Applicant is not asked how frequent he took the meals provided by the restaurant. His evidence is that there were times when he did not. He however says he lived far away so he usually stayed in the restaurant for a nap during the recess and at the material time, he was going down to take the dinner after waking up from his nap. It was his practice. It then means the Applicant usually took the free dinner provided at the restaurant, though there were times when he did not.

(viii)It is clear from the totality of the evidence that though the time stated for the start of the recess was 3pm, it could be a bit earlier or later depending on when the Applicant finished serving the lingering customers. Then, he could spend the recess in any way he liked and go anywhere he wanted (subject to Mr. Yim's saying in his statement that the staff during recess could leave the restaurant or do anything inside the restaurant, provided they did not disturb the customers or engage in illegal activities). The Respondent did not oblige the Applicant to stand by for duty. Nor was he required to let the employer know where he was for contact.

(ix)The Applicant lived in Shatin, far away from Sai Kung. The Respondent allowed the Applicant to stay in the upper levels to rest during the recess. The Applicant did so as a matter of practice to save travelling to and fro between Sai Kung and Shatin within the limited time of recess.

(x) The applicant says there were many occasions when he was resting at the upper level (already closed for business) that he was asked to help serving customers at the Ground Level (still open to customers), if the catering staff there could not cope with the demand of service at that time. Mr. Chang does not put to the Applicant that he has lied or exaggerated. However, the Manager Mr. Yim says that the only waiter on duty (Category B) would be able to deal with the demand in general. If not, that staff would inform the Manager to come back to help. Mr. Yim agrees that should there be any such request made to the Applicant and he refuse to help, a bad view would be formed of him.

(xi)It is clear from the evidence that the business in 2000 was not good. According to people's dining habits, the lunch hour for many would have well passed by about 3 pm. By that time, there could not be too many customers. I accept that normally the only waiter on Category B duty would be able to manage. But I also accept that there were exceptional occasions when the demand was more than he could cope with. This, however, could not be too frequent. I find that the Applicant was inaccurate about the frequency here. I am prepared to accept that there were some (not many) occasions when the Category B staff asked the Applicant to give a hand. Mr. Yim is not lying or exaggerating. He probably just did not remember those occasions or he simply did not know (if the Category B staff failed to inform him and just called upon the resting staff upstairs to help for convenience).

(xii) The Applicant agrees that he was not under any obligation to help during the recess. I find that such service should be regarded as additional service rendered on a voluntary basis. Mr. Yim says a bad view would be formed of the Applicant if he did not render help upon request; it was only natural for an employer to perceive an employee like that as inconsiderate. It goes without saying that if an employee were not considered helpful, his employment would be prejudiced somehow as the employer might not treat him well then and might even replace him. Thus, though it was entirely up to the Applicant to decide whether to help or not, he certainly would in order to avoid any bad view that might be formed of him by his employer.

(xiii) The Applicant also says that he would be required to serve customers even when taking meal. The Respondent was a catering business. The Ground Level was always open before the close of the day's business. The Applicant's evidence that he had helped serving customers while taking meal was not challenged. I accept he did so. There is no clear evidence as to how often. Considering the hours of the meals and customers' dining habits, I am prepared to accept that the phenomenon was just occasional. Such service rendered during meal hours should again be considered as additional service rendered on a voluntary basis, as it was outside the scheduled session hours. Mr. Yim is not asked about this but it goes without saying that if the Applicant just adhered rigidly to the session hours despite extra service was called for, a bad view would also be formed of him. That would prejudice the Applicant's employment in the sense that, again without saying, the employer would prefer a more ready-to-serve staff.

5.From the totality of the evidence, it is clear that: -

(i) The Applicant was required to work for hours, which were divided into a morning session and a night session (with a recess in between during non-holiday weekdays and none during holiday working days). The hours were scheduled but not applied with absolute rigidity - in the sense that the starting time for each session might be quite close to the time scheduled but if customers came early service would still be rendered, and the finishing time would depend on whether there were still customers. I accept that in such circumstance the deviation of time would not be much from that scheduled. It then means that the starting time of the recess was around 3 pm, depending on whether the Applicant had finished waiting on his customers or not; the starting time of the dinner provided by the Respondent to its staff would be very near to 5 p.m. There had been some occasions when the Applicant was requested to give a hand to serve customers during the recess, and there were times when the Applicant had to serve customers during his meal hours.

(ii)The Applicant lived far away from his working place. He had made it a habit to take a nap during the recess in the restaurant. Then he would take the dinner provided by the Respondent before the night session of work would begin. The Respondent allowed this and allowed the Applicant to enjoy his recess freely, so long as he did not disturb the customers or do anything illegal.

(iii)It was on 4 July 2000, a working day (Tuesday, a normal weekday and not a holiday), during the recess hours when the Applicant hurt himself inside the restaurant. The Applicant had finished his morning session of work. He went out as usual to have tea with some colleagues in a nearby cafe. Then, he came back to the restaurant, again as he usually did, to take a nap. He slept as usual on the 2nd level. When he woke up from the nap, he intended to go down to the Ground Level to take the dinner, which would be available there in about half an hour's time. He stepped onto the stairs at the top of the 2nd Level (shown as the top on Photo 'b', p. 151 of the Document Bundle; reverse angle on Photo 'b', p. 152). The Applicant slipped and hurt himself through falling down the whole staircase onto the iron gate at the bottom (the gate was still locked). He climbed back to the room where he had taken the nap. He called the Manager. Mr. Yim soon came. The Applicant was later sent to the hospital.

6.The issue for this Court to decide is whether the Applicant was in the course of employment when the accident occurred.

7.Mr. Pirie contends that the Applicant was. He says 'in the course of employment' does not only mean actual performance of work. It also covers such situation when the employee was doing anything incidental to his employment. Mr. Pirie mentions several cases but he says one case, The Commonwealth v. Oliver (1962) 107 C.L.R. 353, says it all. He says that case illustrates how the law has moved on. He points out how Dixon CJ apparently took a more liberal approach to the interpretation of the situation and thus came to a different decision on a set of facts very similar to those in Whittingham v. The Commissioner of Railways (W.A.) (1931) 46 C.L.R. 22 (in that case the judge was also involved).

8.Mr. Chang, in citing Lord Goff's statement in Smith v. Stages [1989] 1 AC 928 [H.L.], at 936B: -

"The fundamental principle is that an employee is acting in the course of his employment when he is doing what he is employed to do, to which it is sufficient for present purposes to add - or anything which is reasonably incidental to his employment"

is in agreement with Mr. Pirie in that if the Applicant was doing some act(s) incidental to his employment at the time of the accident, he could be regarded as being in the course of employment. Of course, such act(s) must be reasonably incidental, not unreasonably or remotely. This 'incidental to the work' test was actually adopted by the Hong Kong Court of Appeal in Lam Min v. Yau On Construction Co. [1981] HKLR 646 (a case not cited by both sides).

9.Mr. Chang says that in order to determine what is incidental, the Court must first look at the nature of the employment. He cites Lord Wrenbury's words in St. Helens Colliery Co. Ltd. v. Hewitson [1924] AC 59 [H.L.], at 92: -

"A first step is to ascertain what is the employment. If the workman is doing anything that his employer could and did, expressly or by implication, employ him to do or order him to do, and the accident occurs when he is doing it, the case is within the [English Workmen's Compensation Act 1906]."

I agree to Mr. Chang's proposition.

10.The Applicant was employed by the Respondent to work as a waiter to serve customers in the restaurant. He was remunerated on monthly basis (though paid at half-monthly intervals) to work on a number of days per week, including holiday days. His daily working hours were separated by a recess on non-holiday working days and none on holiday working days. Though the Applicant had no obligation to work during the recess, he would offer assistance should the need arise. He was under no obligation to stay in the restaurant during the recess but for convenience and necessity, he had made it a habit to go out for tea and then come back for a nap at an upper level before taking the dinner provided by the Respondent at the Ground Level at around 5 pm. The night session of work was scheduled to start after the dinner at 5:30 pm but if customers did patronize the restaurant early, the Applicant would still render service during his mealtime. The Respondent recognized the Applicant's practice and raised no objection to his staying in the premises for rest before dinner. The Applicant was allowed to enjoy his recess freely but he was not to disturb the customers or to do anything illegal during such period. At all material times including the recess and the meal periods, the Respondent had control (Mr. Chang does not say otherwise) of the premises.

11.Mr. Chang says that the accident occurred during the Applicant's recess. The Applicant was actually enjoying his own free time; the employment being suspended then. The Respondent only granted a liccnce for the Applicant to stay in the restaurant during the recess. Mr. Chang also says the Applicant's taking the dinner provided freely by the employer (thus his going down the stairs to take the meal) was no obligation; it was just a benefit conferred by the employment. Mr. Chang argues that the Applicant was not in the course of employment when the accident occurred, as he was not performing any duty under his employment or incidental to his employment.

12.With respect to Mr. Chang, I do not agree with him. He over-emphasizes the concept of duty and interprets the whole thing too narrowly. The statement of Lord Wrenbury quoted by him (supra) is right but it must be viewed in context rather than in isolation. The Law Lord also said in the same case at p. 91: -

"The employment may be to do some defined manual work, say, hewing coal, but the accident need not arise where the man is actually using his pick. He may be going down in the cage. He may be resting between shifts. He may be taking a meal. He may be merely standing by, waiting for the next job. All these, and such as these, are not 'the employment' but are incidental to the employment. The man is in the course of his employment - is engaged in his employment in all such cases. 'They also serve who only stand and wait.' "

13.In another case Weaver v. Tredegar Iron & Coal Co. Limited [1940] AC 955 [H.L.], also in Mr. Chang's list of authorities, the true perspective of the connotation of duty was discussed by Lord Atkin at p. 966: -

"...but the word 'duty' in the test as such a wide connotation that it gives little assistance as a practical guide. Employment, says the formula, 'covers and includes things belonging to and arising out of it.' We are still left to discover what those things are. It is well settled that a man injured while taking refreshments on the premises at a permitted hour or otherwise relieving necessities of nature is in the course of employment. It is a wide use of language that permits one to say that in those cases 'he is doing something in discharge of a duty to his employer imposed upon him by his contract of service' even if you add the word 'directly or indirectly'... Duty with the vague connotation given to it above cannot be rejected; but it does not seem to point very clearly to the desired goal. There can be no doubt that the course of employment cannot be limited to the time or place of the specific work which the workman is employed to do. It does not necessarily end when the down tools signal is given or where the actual workshop where he is working is left. In other words, the employment may run on its course by its own momentum beyond the actual stopping place."

The facts of that case were that the workman was pushed off a platform by a crowd of fellow workmen when seeking to board a train after leaving work at the collieries. The platform and the train were owned and controlled by a railway company, but the platform was situated adjacent to and accessible only from the colliery premises and was not open to the public. The arrangement was made between the employer with the railway. There was no duty or obligation to use the railway and thus the platform; the workers were free to go home by other means of transport. But in practice almost all employees used the railway. The House of Lords held that the worker was making using of the facilities of egress from his place of work as provided by the employer, and the worker was also in the premises which his employer had obtained on licence for him to use and which he had no right to be except by virtue of his employment. The House of Lords treated the fact that there were alternative mans of egress as irrelevant. They found the worker being in the course of employment.

14.It is clear that the mentioned Law Lords did not adopt a restricted connotation of 'duty' as Mr. Chang did. Instead, they used a liberal approach to consider what was incidental to employment.

15.The Law Lords are no doubt right. Employment is not just work or performance of duty. Service rendered by the employee is only one side of the coin. The other side is that the employer will provide perquisites or benefits to the employee, who is only entitled to such rewards as a result of the service he has rendered or will render to the employer. There is no employment in this world that does not embrace such necessary reciprocity. An employee is not a machine working incessantly. There must be times when he pauses in his employment out of necessity or by mutual arrangement (express or implied) between him and the employer or merely as allowed by the employer for him to enjoy the perquisites he is entitled to under the employment.

16.If one can term Mr. Chang's argument 'the contractual duty test', it is just such duty test that the Court in the case of Lam Min (supra) rejected. There, the deceased employee worked on a site on an island. There were no lunch facilities available. The workers could choose to stay on the island without going out for lunch but it was customary for them to go out on a boat provided by the site owner at no charge. On a tragic out-journey, there was a collision on water and the deceased worker got drowned. Counsel for the employer contended that the taking of the boat journey had nothing to do with the duty of deceased worker; there was no contractual duty in his employment that he had to use the boat and he was not obliged to take the journey. The Court of Appeal dismissed such argument. It was ruled that the taking of the boat in the circumstance of the case was something incidental to the deceased worker's employment. The accident was regarded as arising out of employment and in the course of employment.

17.Coming back to the present case, the Applicant was enjoying his recess and going to take the dinner provided in the restaurant - a premises under the Respondent's control at the material time. Mr. Chang submits that this is a non sequitur. He cites the statement of Lord Dunedin in John Stewart and Son (1912) Ltd. v. Longhurst [1917] AC 249, at p. 256: -

" 'Control' was sought to be raised to the position of affording an absolute test whether employment has begun or ceased. I venture to go so far as to say that control of the place where an accident happens, so far from being conclusive, is neither here nor there except in so far as it may represent a fact tending to show that the accident arose in the course of the employment."

18.I humbly agree with Lord Dunedin in that the element of control over the premises was not conclusive. However, it is in the Law Lord's own words 'a fact tending to show that the accident arose in the course of the employment'.

19.Mr. Chang argues that the Applicant could have been anywhere at the material time on 4 July 2000 if he had not come back to sleep in the restaurant that afternoon. He could also have done other things. In fact, he had left the restaurant and only come back to take the nap on his own will and he stayed in the premises merely under a licence granted by the Respondent.

20.I do not find such argument attractive. Again, that is too narrow a view of the whole context of this case. In any event, the Applicant at the material time was not anywhere else or doing anything else. He was in the employer's premises (i.e., his place of work) with the latter's permission enjoying a perquisite under the employment (i.e., rest by taking nap) and he was going down the stairs to take the dinner (another perquisite under the employment). The Applicant was not a stranger to the Respondent. It was not that he just happened to be there out of the blue. He was not a passer-by just dropping in for a rest. It was part of his employment that he could (and he would) rest there during the recess and to take the dinner provided by the employer.

21.It is true that the Applicant was not obliged to work during the recess. Nor was he required to stand by or to remain contactable. He could pass the time in the way he wanted (provided he did not disturb the customers or do anything illegal). He was not obliged to take the meals. But this does not mean that all these were not incidental to his employment. Rather it should be interpreted as the Respondent allowing the Applicant to enjoy in a free manner such time and appurtenances under his employment. All these were reasonably incidental to the Applicant's employment.

22.Of course, the Applicant could have done other things during the recess but it was only natural for him to rest during the recess in order to become refreshed and energetic for the night session duty. It was again natural for him to stay in the restaurant as his home was far away from his place of work. It was convenient for him to stay there. Out of necessity and convenience, the Applicant made it a practice to stay in the premises so that he could rest and take the dinner and resume duty on time. Such practice was recognized by the Respondent, who raised no objection to it. It was illogical to expect the Applicant to adopt a different practice of spending his recess or to stay elsewhere or to refuse to take the meals provided. His staying in the restaurant during the recess was reasonably and not remotely incidental to his employment. In such way, he could get refreshed and energetic. In a sense, he was equipping himself physically to cope with the night session of work. The licence granted by the Respondent to the Applicant to stay was also naturally incidental to the employment. I am sure if the Applicant were not employed by the Respondent, the latter would not grant such licence. The Respondent allowed the Applicant to rest in the restaurant to facilitate the latter's recuperation for coping with the night session of work.

23.I have found that sometimes the Applicant did not take the meals but he did so usually. It is not disputed that the meal place was on the Ground Level and the stairs was within the place of work and was the only way of ingress and egress between the Ground Level and the upper levels. If the Applicant had to take the meal, he had to use the stairs to go to the Ground Level.

24.Just as much as I have said of the Respondent's granting licence for the Applicant to stay in the restaurant for a nap, the same is true of the former's providing free meals to the latter. The Respondent was not doing this for benevolent reasons. The meals were provided as perquisites under the employment so that the Applicant could take meals conveniently and at no costs, thus satisfying his need and want before starting to work in each session. This arrangement was beneficial to the employer as much as to the employee. The meals energized the Applicant. The arrangement also avoided the possibility of his coming back late from meal (if he had to take meal elsewhere). The provision of meal at the Respondent's place was, therefore, of mutual benefit. I am sure if the Applicant did not work for the Respondent, he would not be provided with such meals. The provision of meals was incidental to the Applicant's employment. It follows that the going down the stairs (after resting during recess in the restaurant with the employer's permission) to take the meal was also incidental to his employment.

25.On 4 July 2000, the Applicant woke up from his nap. Mr. Pirie put it as near 5 pm, the mealtime. However, the Applicant said in his statement that it was 4:20 to 4:25 pm. This tallies with the case of the Respondent that the accident occurred shortly before 4:30 pm. There was still slightly more than half an hour to go before the dinner.

26.There is no evidence that the Applicant would be served as a customer during the dinner. It is reasonable to assume that those taking the meal would have to help out like laying the table, moving the chairs and so on. I would not go so far as to suggest that the Applicant would have to help cooking. Certainly, that would be the business of the chef. In any event, it would be inappropriate and even rude for the Applicant to go down just on time for the meal without contributing any effort. In such circumstance, I do not find it unreasonably early when he went down the stairs at around 4:30 pm or shortly before.

27.Mr. Chang tries to say there was no employment during the recess in that the applicant was employed to work in two discreet periods. Alternatively, he says the recess was a clean break of employment if the day's employment should be considered as one period. In any event, he is saying that the employment had been ended or suspended during the recess. He quotes the joint judgment in Hatzimanolis v. A.N.I. Corporation Ltd. [1992] 173 C.L.R. 473, at p. 483 to establish that: -

"The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work."

28.However, one cannot ignore what Lord Dunedin in Stewart & Son Limited v. Longhurst (supra), said at p. 256: -

"No general rule can be laid down as to when employment begins and ceases, for the simple reason that each case arises in accordance with its own circumstances."

29.In Davidson v. Mould (1944) 69 C.L.R. 96, a case mentioned by Mr. Pirie, the then Chief Justice of the New South Wales Supreme Court, Sir Frederick Jordan, had enunciated a statement of principle which was adopted by William J. with approval in the High Court. Jordan J. said: -

"I think that if a worker is using part of his employer's premises for his own purposes during a rest period, it is immaterial, in this connection, whether he is doing so by the mere permission of his employer or an exercise of the legal right conferred by the contract of employment...if the terms of the contract of employment provide that the worker, during the course of the stipulated working day, may cease work for one or more short periods for the purposes of resting or refreshing himself, and he (the employer not objecting) on such an occasion occupies the period between the cessation of one period of work and the commencement of another by remaining in his workroom, it is, to say the least of it, possible to regard him as being in the course of his employment during the whole of the period that he so remains - as still doing something which can be regarded as being incidental to his employment. Nor would his position be bettered or worsened in this respect if he spent part of the time in eating and the remainder in dozing or all of it in resting. No doubt if in such a case he left his employer's premises altogether he would (prima facie at any rate) necessarily cease to be in the course of his employment whilst so absent. Between these two extremes there is an infinite variety of possibilities, where the question is essentially one of degree and of fact." ((1943) 44 S.R. (N.S.W.) 113 at pp. 117-118)

30.In the present case, the Applicant had left the Respondent's premises but he subsequently re-entered it for purposes (to take a nap and then to take the dinner provided) incidental to his employment and nothing else. If the course of employment had stopped when he left the premises after the morning session, it re-commenced when he re-entered it later that afternoon. Since then, he had not deviated from what he had been allowed to do there. He took a nap and, after waking up, went down from the 2nd Level to prepare to take the dinner at the Ground Level. He had an accident when he stepped onto the stairs, which was the only means of ingress and egress between the Ground Level and the upper levels.

31.Mr. Chang mentions a number of meal cases just as Mr. Pirie does, trying to draw a parallel between those cases and the present one.

32.I do not think it is right for anyone to compare the facts of this case with the facts of similar cases to reach a decision. It is obvious that each case has to be decided on its special facts. In Lord Dunedin's words: "each case arises in accordance with its own circumstances" (supra) and in J. Jordan's words "the question is essentially one of degree and of fact" (supra).

33.Mr. Chang also refers to some on-call duty cases, including Cheng Ho Kee v. Secretary for Justice HCA 16883 of 1999 (unreported) decided by Hartmann J. That case was indeed concerned with Correctional Services Department officers arguing about on-call duty. Mr. Pirie has fairly conceded that the Applicant in the present case was not on call during the recess. Furthermore, Hartmann J decided his case in the context of Civil Service Regulations. I do not find this line of Mr. Chang's argument helpful.

34.Having considered all the evidence and submission adduced by both sides, I find that on 4 July 2000, shortly before 4:30 pm, when the Applicant (having woken up from his nap at the employer's premises during the recess) stepped onto the stairs in order to get down to the Ground Level for dinner (provided by the employer), he was doing an act reasonably and naturally incidental to his employment. He was in the course of his employment then. There being no other disputable issues, I rule that the Applicant is entitled to the compensation he claims. The quantum is agreed. I award the Applicant HK$ 87,321.6 under s. 9 of the Employee's Compensation Ordinance, Cap. 282 and HK$ 334,732.8 under s. 10 of the same ordinance.

35.s. 23 (1) of Cap. 282 empowers the Court to grant interest:-

"The Court may in any proceedings brought in the Court for the recovery of any compensation, order that there shall be included in the sum for which an order for payment is made interest at such rate as it thinks fit on the whole or any part of such sum for the whole or any part of the period between the date of the accident and the date of the order."

36.The Applicant is surely entitled to interest on the awarded sums at judgment rate from the date of judgment to the date of payment. I so order.

37.As regards how pre-judgment interest should be calculated, there is some argument in the trial. Mr. Chang has raised the issue of delay. Both counsel have made some suggestions of the rate to be applied. However, they have not addressed me fully on the facts and the law pertaining to this issue. It seems they would rather leave it to when the main issue has been decided. Now the 'in the course of employment' issue has been decided. If no agreement can be reached between both sides on the pre-judgment interest issue, I would require them to appear before me for further argument on the pre-judgment rate and over what period such rate should apply.

38.As to costs, I make an order nisi that the Respondent is to pay the Applicant costs. Such costs are to be taxed if not agreed. I also grant certificate for counsel's attendance.

39.If both parties can come to agreement on the pre-judgment interest issue, they can take out a consent summons for this Court to issue a further order on the matter. If not, or if any party is dissatisfied with the nisi order on costs, application should be made within 14 days from the date of judgment for a date to be set down for further argument. After the 14-day period, the costs order nisi will become absolute.

Representation:

Mr Nicholas Pirie instructed by Messrs. B. Mak & Co. for Applicant.

Mr Jonathan Chang instructed by Messrs. Lo, Wong & Tsui for Respondent.