Cheng Po Pui v. Sino Estate Management Ltd

DCEC000715A/2001

DCEC715/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 715 OF 2001

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IN THE MATTER OF AN APPLICATION BETWEEN:

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Coram: Her Honour Judge H.C. Wong in Court

Dates of Hearing: 31 March 2004, 1 April 2004

Date of Handing Down of Judgment: 17 June 2004

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JUDGMENT

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1.The Applicant applies for compensation under Sections 9, 10 and 10A of the Employees Compensation Ordinance Cap. 282.

2.The Respondent does not deny the Applicant was its employee at the date of the accident nor does it deny the Applicant had an accident on 12 September 2001. The Respondent, however, disputes that the Applicant was injured in the course of employment.

3.The Applicant was employed to work as an Assistant Building Supervisor at One Capital Place in Wanchai ("OCP"). On 15 September 1999, she was told to attend a meeting with the Respondent's management staff after work at Pacific Palisades at No. 1 Braemar Hill Road in North Point ("Pacific Palisades") at 6 p.m.

4.The Applicant, Madam Cheng Po Pui, initially asked to be excused from the Pacific Palisades meeting because No. 3 typhoon signal had been hoisted that day, and it was likely No. 8 typhoon signal would be hoisted later on that day. Her supervisor Mr. Leung Ying Fai, however, told her she had to attend the meeting. Consequently, she attended the meeting. After the meeting, she took a cross tunnel bus No. 108 to return to her Hung Hom home from Causeway Bay. Madam Cheng claimed that she would not have taken the No. 108 bus had she not attended the meeting at Pacific Palisades. Her regular mode of transport after work was by ferry from Wanchai to Hung Hom in Kowloon.

5.On the homeward journey on board No. 108 bus, Madam Cheng fell down from the stairs and sustained multiple injuries including fracture to her left arm, injuries to the right hip and pelvis, right leg, right wrist and left index finger. She was treated at the Queen Elizabeth Hospital and United Christian Hospital. She was granted sick leave from 16 September 1999 to May 2004.

6.The Respondent paid to Madam Cheng periodical payments from September 1999 to June 2001. Thereafter, the Respondent failed to make any further payments because the insurance company (HIH) had been wound up and also because the Respondent did not consider the Applicant was injured in the course of employment or that the accident arose out of the employment under S. 5 of the Ordinance.

The Issue

Did the accident arise out of and in the course of employment?

7.The Applicant claimed that the meeting at Pacific Palisades had taken her outside her usual route of her journey home from work. Further, she believed she would be reimbursed for travelling expenses to and from Pacific Palisades because it was a requirement of her employment to attend the meeting with the Respondent's management staff on 15 September 1999. Consequently, she claimed that she should be compensated under the Ordinance.

8.The Respondent, on the other hand, argued that upon her departure from the meeting of Pacific Palisades, the Applicant was no longer in the course of employment. The Respondent emphasized that Madam Cheng was free to go where she wanted after the meeting because she was no longer on her employer's business after the meeting.

The Law

9.In the English case of Smith v. Stages [1989] 1 AC 928, the House of Lords held that an employee who was paid wages by his employer to travel from his ordinary residence to a place other than his usual workplace to carry out a job and was also paid wages for the return journey home was acting in the course of his employment while travelling; the fact that the employee might have a discretion as to the mode and time of travel would not take the journey out of the course of employment. In Smith v. Stages, the employee was required to travel to a town away from his usual work place and his home town.

10.Lord Lowry in that case laid down some prima facie propositions to determine whether the accident took place was in the course of employment at p. 955 of the judgment:-

"It is impossible to provide for every eventuality and foolish, without the benefit of argument, to make the attempt, but some prima facie propositions may be stated with reasonable confidence.

(1)	An employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, is not on duty and is not acting in the course of his employment, but, if he is obliged by his contract of service to use the employer's transport, he will normally, in the absence of an express condition to the contrary, be regarded as acting in the course of his employment while doing so.
(2)	Travelling in the employer's time between workplaces (one of which may be the regular workplace) or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces (as an inspector of gas meters might do), will be in the course of the employment.
(3)	Receipt of wages (though not receipt of a travelling allowance) will indicate that the employee is travelling in the employer's time and for his benefit and is acting in the course of his employment, and in such a case the fact that the employee may have discretion as to the mode and time of travelling will not take the journey out of the course of his employment.
(4)	An employee travelling in the employer's time from his ordinary residence to a workplace other than his regular workplace or in the course of a peripatetic occupation or to the scene of an emergency (such as a fire, an accident or a mechanical breakdown of plant) will be acting in the course of his employment.
(5)	A deviation from or interruption of a journey undertaken in the course of employment (unless the deviation or interruption is merely incidental to the journey) will for the time being (which may include an overnight interruption) take the employee out of the course of his employment.
(6)	Return journeys are to be treated on the same footing as outward journeys.

All the foregoing propositions are subject to any express arrangements between the employer and the employee or those representing his interests."

11.In a normal case, a person's employment begins when he arrives at his place of work and ends when the person leaves it. Consequently, when a person met with an accident on his way to work or on the journey home from work, he was not in the course of employment nor would the accident have arisen out of the employment even if he was travelling on transport provided by his employer. The dictum on "arising out of and in the course of his employment" in the judgment of Lord Denning M.R. in Vandyke v. Fender [1970] 2 Q.B. 292, 305, referred to by Lord Lowry in Smith v. Stages at p. 950 B-F is the authority on this issue.

"The two leading cases, most apposite for present purposes, are St. Helens Colliery Co. Ltd. v. Hewitson [1924] A.C. 59; and Weaver v. Tredegar Iron & Coal Co. Ltd. [1940] A.C. 955. They show, to my mind quite conclusively, that when a man is going to or coming from work, along a public road, as a passenger in a vehicle provided by his employer, he is not then in the course of his employment - unless he is obliged by the terms of his employment to travel in that vehicle. It is not enough that he should have the right to travel in the vehicle, or be permitted to travel in it. He must have an obligation to travel in it. Else he is not in the course of his employment. That distinction must be maintained: for otherwise there would be no certainty in this branch of the law."

12.In the circumstances of the present case, Madam Cheng was instructed to attend a meeting with the employer's management team in Pacific Palisades, after the meeting, she went home by bus, a different mode of transport from her usual transport by ferry. She was advised by her colleague at Pacific Palisades it was a more suitable mode of transport from where the meeting was held. Applying Lord Lowry's test in Smith v. Stages, I find she was not (1) travelling in the employer's transport; (2) travelling on the employer's time or in a peripatetic occupation; (3) travelling to or from the scene of an emergency; (4) travelling on the employer's business. Though she was required to attend the Pacific Palisades meeting, she was on the last leg of her journey home when the accident took place.

13.In the Privy Counsel case of Alderman v. Great Western Railway [1937] A.C. 454 where the Appellant, a travelling ticket collector for a railway company signed off at Swansea, who had slept at his lodgings in Swansea, fell in the street on his way from his lodgings to Swansea station to report for duty. The House of Lords held that he was not performing any duty under his contract of service, therefore, the accident did not arise in the course of his employment and was not entitled to compensation. Lord Russell said in p. 461 that:-

"In order to entitle him to compensation in such a case some other element must be present (involving the discharge of a contractual duty to the employer) which in law extends the course of his employment so as to include the moment of time when the accident occurred."

14.Lord Goff in Smith v. Stages p. 937 D-F observed that:-

"But how do we distinguish the cases in this category in which a man is acting in the course of his employment from those in which he is not? The answer is, I fear, that everything depends on the circumstances. As Sir John Donaldson M.R. said in Nancollas v. Insurance Officer [1985] 1 All E.R. 833, 836, the authorities

"approve an approach which requires the court to have regard to and to weigh in the balance every factor which can be said in any way to point towards or away from a finding that the claimant was in the course of his employment. In the context of the present appeals, there are a number of such factors to which we must have regard, but none is of itself decisive.""

15.The Court therefore has to consider the circumstances and facts in each case to decide if the accident took place in the course of employment of the injured employee.

16.In the present case, the issue is not in the mode of transport used by the employee when the accident took place, but whether the injury was sustained in some manner incidental to the contract of service, or by reason of some event incidental to that work. In examining if the accident was incidental to the work, the circumstances and the time of the accident are factors of importance.

17.The Applicant's counsel, Mr. Wong, argued that the Applicant was acting on the instructions of the employer to attend the meeting at Pacific Palisades and that she would be reimbursed travelling expenses from her Wanchai work station to Pacific Palisades after work on the day of accident. She believed she would be repaid for her journey from Pacific Palisades to home. The Respondent denied she would be so reimbursed. In any event, the evidence was all applications for reimbursements had to be made in writing and were subject to approval.

18.I accept the evidence of all of the Respondent's witnesses that there was no such practice or policy of reimbursing the travelling expenses for employees' journey home from the place of meeting for in their opinion she had already come off duty after the meeting.

19.The accident happened when the Applicant was travelling on a public transport and she was approaching the stop closest to her home in Hung Hom. She fell while descending the steps from the upper level of the bus to alight. It was her chosen mode of transport, though not her usual mode of transport, it was not transport supplied by the employer.

20.Had the accident took place on Madam Cheng's returned journey from Braemar Hill to her work station in Wanchai rather than her journey home, the situation may have been different. In the circumstance, one would consider the Applicant's return journey in two stages, the first stage from Braemar Hill to Wanchai and the second, from Wanchai to Hung Hom. Having done so, clearly, the accident had taken place at the end of the second stage of the journey when the Applicant reached her home stop and was in the process of alighting the bus. Consequently, at the time of accident, Madam Cheng was in the same position as an employee who was travelling home from work and not travelling on the employer's business. Her direct journey home from Braemar Hill had taken her out of the course of employment.

22. In conclusion, the Applicant's claim must fail for she was not in the course of her employment when the accident took place while travelling on a public bus at the final stage of her journey home.

23. The Applicant's claim is dismissed and I award costs to the Respondent to be taxed if not agreed with certificate for counsel.

Representation:

Mr. Tommy W.M. Wong instructed by Messrs. Paul W. Tse for Applicant.

Mr. Thomas T.H. Kwan instructed by Messrs. F. Zimmern & Co. for Respondent.