Ng Mung Khian v. Wing Kwong Painting Co and Another

ECC/LA 12510/2002 (DF22)
DCEC 749/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 749 OF 2002

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

Dates of Hearing: 31 May 2004, 1 to 2 June 2004

Date of Handing Down Judgment: 18 June 2004

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JUDGMENT

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1.In this matter, the Applicant applies for compensation under Sections 5 and 6 of the Employees' Compensation Ordinance Cap. 282 against the employer 1st Respondent and main contractor 2nd Respondent.

2.On 4th January 2001, the Deceased was employed by the 1st Respondent to work as a painting worker at the 1st Respondent's construction site at Lai Chi Kok Public Housing Phase 1 at Lai King Hill Road Kowloon ('the said site'). The 1st Respondent was a painting sub-contractor of the 2nd Respondent at the said site.

3.On 4th January 2001 at about 12:15 - 12:20 p.m., a fire broke out at the 1st Respondent's temporary storeroom erected on the 1st floor of the car park at the said site ('the said storeroom'). After the fire subsided, the fireman discovered inside the said storeroom a charred body which was later identified and confirmed as the Deceased at the Coroner's Inquest.

4.The Coroner's jury returned an open verdict at the conclusion of the hearing of the inquest.

5.The Respondents in their answers, denied liability under the Employees' Compensation Ordinance claiming that the Deceased had died resulting from a deliberate self-injury or suicidal act. Therefore, under s.5 (2)(b) of the Ordinance, no compensation is payable to the Applicant.

6.Under an Admission of Facts pursuant to notice filed by the 1st and 2nd Respondents on 24th July 2003, the Respondents admitted to the following facts that :

(i) at all material times, the lunch hour for the Respondents' employees at the said site was 11:45 a.m. to 1 p.m.;

(ii) the Deceased requested early leave to attend to personal matters before 11:45 a.m. on the material date;

(iii) the Respondents have no knowledge of the exact time the Deceased left the said site on the day in question;

(iv) the Respondents have no knowledge of the exact time when the Deceased returned to the said site;

(v) the firemen discovered a burnt dead body inside the 1st Respondent's painting workers' storeroom and the fire was classified as suspicious fire.

The Issues

7.The parties are in dispute over liability namely :

a) Was the Deceased killed in the course of employment and did it arise out of the employment?

b) Was the Deceased killed in an accident or was it self-inflicted?

8.In order to determine the first of the above question, one has to look at the circumstances of the incident leading to the death of the Deceased.

The time of the incident

9.The evidence of witnesses at the hearing established that the Deceased asked to leave early for lunch at 11:15 a.m. on 4th January 2001 to attend to personal matters - see evidence of Yu Ka Ming. The Deceased was seen returning to the said site by security guard Liu Kam Kwong at 12:10 p.m. At 12:25 p.m. he was told a fire had broken out on 1/F car park. The 1st Respondent's foreman Yu Ka Ming's evidence was he was told upon returning to the said site at 12:15 p.m. that the 1st Respondent's storeroom was on fire. It is therefore safe to conclude that the fire broke out between 12:15 p.m. and 12:25 p.m.

The workers' lunch hour

10.The Respondents admitted that the workers would break for lunch between 11:45 a.m. and would resume work at 1 p.m., it is also foreman Yu Ka Ming's evidence that indeed that was the period of the lunch break. The evidence of the Applicant's witness, Leung Yat Fai, a co-worker of the Deceased was even though a worker may break for lunch early, he would not start work earlier than 1 p.m. In fact, it is the 1st Respondent's witness Mr Luk's evidence that unless there was a special approval from the site supervisor, no worker would be permitted or expected to work between 12 noon and 1 p.m.

11.Mr. Leung, counsel for the Applicant, referred me to the judgment of Widgery C.J. in the case of R. v. National Insurance Commissioner, ex.p. East [1976] 1 CR 206 at p. 210 C-D where he cited Willis' Workmen's Compensation 37th ed (1945) at p. 36 :-

"The course of employment may be taken to have commenced although the hour of actual work has not struck, if the workman's arrival on the premises is either not unreasonably early, or if, at the time of the accident, he is doing something on the employer's premises which is necessary to be done to equip himself for his work....."

Widgery C.J. considered that the above would be a good staring point in this type of cases.

12.S.5(4) of the Ordinance stated :

"(4) For the purposes of this Ordinance -

(a) an accident arising in the course of an employee's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment;

(b) an accident to an employee shall be deemed to arise out of and in the course of his employment, notwithstanding that the employee was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the employee for the purposes of and in connection with his employer's trade or business;"

13.It is therefore Mr Leung's contention that the Deceased could have returned to the storeroom in preparation or to equip himself for the afternoon's work, therefore, even though he might have returned early to the site it would not have taken him out of the course of his employment.

14.It would be necessary to go on to consider the second question as to what the Deceased was doing inside the storeroom and whether the fire was started accidentally or was it a deliberate act on the Deceased's part.

15.The Respondent relied on S.5(2)(b) of the Ordinance :

"(2) No compensation shall be payable under this Ordinance in respect of -

(b) any incapacity or death resulting from a deliberate self-injury;"

There were suggestions from the witness statements at the police investigation that the Deceased seemed to have been suffering from some form of lung ailments, for after a chest X ray he had taken 1 month leave of absence and had been resting at home during that period. He had returned to work the day before the incident that led to his death. One of the Respondent's witness Mr. Yu also suggested that the Deceased was in financial difficulties for he had taken $3,500 money which he should have paid to the transport workers and he failed to repay it though he had promised to repay the 1st Respondent when he resumed work in January 2001.

16.Apart from the aforesaid, there was no further evidence to suggest the Deceased should take his own life. From the Applicant's evidence, there seemed to be nothing peculiar about him the night before or when the Deceased called her on the phone that morning at around 11:15 a.m. He had asked her what she was doing and told her he was going off to lunch. Neither did his co-workers notice anything wrong about him the day before or indeed on the day of the incident at the site.

17.Based on the evidence disclosed, there were simply insufficient basis to conclude the Deceased should have deliberately inflicted the injuries on his person. The Coroner's jury was unable to reach any such conclusions and had left an open verdict.

18.The Deceased was well paid at over $18,240 per month. The Applicant did not complain about being short of household money. There was no evidence that the Deceased was in serious trouble over debts. After all, the Deceased could have easily repaid the $3,500 to his employer within a week of his resumption of work at the site.

The Burden of Proof

19.Mr Lin, counsel for the Respondent, submitted that the burden of proof remained with the Applicant. He relied on the case of Ng Chun-pui & ors v. Lee Chuen-tat & anor. [1988] 2 HKLR 425. Where the plaintiffs did not give any oral evidence and had relied on the maxim res ipsa loquitur in a common law damages claim. The Privy Council held that :

"The judge however was of the view that, despite those findings of fact, because the plaintiffs had originally relied upon the doctrine of res ipsa loquitur, the burden of disproving negligence remained upon the defendants and they had failed to discharge it. In their Lordships' opinion this shows a misunderstanding of the so-called doctrine of res ipsa loquitur, which is no more than the use of a latin maxim to describe a state of the evidence from which it is proper to draw an inference of negligence. Although it has been said in a number of cases, it is misleading to talk of the burden of proof shifting to the defendant in a res ipsa loquitur situation. The burden of proving negligence rests throughout the case on the plaintiff. Where the plaintiff has suffered injuries as a result of an accident which ought not to have happened if the defendant had taken due care, it will often be possible for the plaintiff to discharge the burden of proof by inviting the court of draw the inference that on the balance of probabilities the defendant must have failed to exercise due care, even though the plaintiff does not know in what particular respects the failure occurred.

So in an appropriate case the plaintiff establishes a prima facie case by relying upon the fact of the accident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintiff will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident. Loosely speaking this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case. Resort to the burden of proof is a poor way to decide a case; it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established. In so far as resort is had to the burden of proof the burden remains at the end of the case as it was at the beginning upon the plaintiff to prove that his injury was caused by the negligence of the defendants."

20.I accept completely the Privy Council's dictum on the application of the doctrine on res ipsa loquitur and on the burden of proof in Common Law negligence claims. However, the present claim is made under the Employees' Compensation Ordinance, where there is a deeming provision under S.5. The Respondent therefore has to rebut the presumption in order to disclaim liability. The burden of rebuttal is on a balance of probabilities, it, nevertheless, is a burden on the Respondent to rebut.

21.The deeming provision under S.5 of the Ordinance does not have the same effect as the doctrine of res ipsa loquitur in the common law claim as the Ng Chun-pui v. Lee Chuen-tat case where the burden of proof was more onerous. S.5(4)(b) provided that even if the accident happened because the employee had acted in contravention of any statutory or other regulation applicable to his employment or in contravention of orders given by his employer, the accident would still be deemed to arise out of and in the course of his employment. It is therefore a statutory conferred burden of proof on the Respondent to adduce evidence to the contrary.

22.Mr Lin further relied on the Privy Council case of Charles R. Davidson & Co. v. M' Robb or Officer [1918] AC 304. In that case, the chief engineer of a ship lying in a part of a public harbour that had been taken over temporarily by the Admiralty and was closed to the public, went ashore on leave for purposes of his own. On his return to the ship after dark he fell from the quay and was drowned. The Privy Council held that the control of the Admiralty did not make the quay the provided access to the ship and that the accident was not shown to have arisen out of the employment.

23.Lord Dunedin held on p.321 of the judgment that :

"In my view "in the course of employment' is a different thing from "during the period of employment." It connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work - e.g., in the workman's case the taking of meals during the hours of labour; in the servant's, not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master's roof."

Further, in Butterworth's Hong Kong Personal Injury Service vol. 2 at IV [353] it said :-

"[353]

(c) The presumption of employees being in the course of employment. This presumption is to the effect that, in case of doubt, employees are presumed not to do acts which will take them out of the course of their employment.

An illustration of the operation of this presumption can be seen in the judgment of Judge Williams in Fung Po Chun v Mollers Ltd, the headnote of which records that Williams DJ held that the onus was on the employer to displace the inference that the accident was within the scope of the employee's employment. In Siu Yau Tai v Hung Chun Hing, this issue of onus was not specifically addressed although one may perhaps infer from the Court of Appeal's judgment (in particular the citing of Fung Po Chun without critical comment) that the Court of Appeal held a similar view on onus to that of Williams DJ."

24.The fact that the Deceased was seen leaving the storeroom and locking up the storeroom after him by his workmates some time after 11:15 a.m., and the fact that more than two of his workmates visited the storeroom to deposit their tools before leaving the site for lunch showed that it was quite possible that the Deceased might have done the same prior to going out to lunch. And upon his return to the site and in preparation for work, he visited the storeroom to prepare and equip himself for work. It was during this period of time that he met with the accident. Though it may be earlier than the usual time for work at 1 p.m. it cannot be considered to be too early, and there being no direct witnesses to the accident, one cannot rule out that he was in the process of preparing for work. Failing evidence to show the Deceased inflicted injury to himself or other positive evidence to the contrary, on the balance of probability, the Respondent had failed to displace the presumption. The Respondent's expert evidence, which was also adduced at the Coroner's Inquest, cannot be considered as conclusive that the Deceased had committed suicide. There was simply insufficient evidence adduced for this Court to come to a conclusion that the Deceased committed an act of suicide.

25.Furthermore, even if I am wrong in my finding of the Respondent's failure to rebutt the S.5(4) presumption, the Applicant may rely on S.5(3) of the Ordinance, short of evidence to prove the Deceased had inflicting injury on himself deliberately under S.5(2) of the Ordinance :-

"S.5(3) In any proceedings under this Ordinance where it is proved that the injury to an employee is attributable to the serious and wilful misconduct of that employee, or that an injury by accident arising out of and in the course of his employment is deliberately aggravated by the employee, any compensation claimed in respect of that injury shall be disallowed; except that where the injury results in death or serious incapacity, the Court on consideration of all the circumstances may award the compensation provided by this Ordinance or such part thereof as it shall think fit."

26.The Court has a discretion under S.5(3) to award compensation to the Applicant even if the accident is attributable to the wilful misconduct of the Deceased to the extent that he might have been negligent and had spilled thinner on himself by accident and recklessly put a naked flame in the spilled thinner when attempting to light a cigarette as suggested as one of the possible cause of the accident by Mr. Leung, counsel for the Applicant. Even if this may be the case, the Court may exercise its discretion under S.5(3) as in the case of Yuen Yuk Ying v. Chan Kam Wing [1997] 1 HKL 198. Godfrey JA held on p. 205 D-G of the Court of Appeal judgment that :-

"We would construe the expression 'in all the circumstances' widely, there being no warrant for construing it narrowly; and so we would hold that a court exercising this discretion is entitled to take into account all the circumstances of the case as revealed by the evidence; all the circumstances peculiar to the accident, and all the circumstances peculiar to the victim. In our case, the employee drove the van for some 25 minutes without incident, before the accident occurred; his condition incurred no suspicion, let alone censure, on the part of the employer's manager in whose company he had been all evening before he set out on his fatal journey back to Yuen Long; he left a widow and two infant children; and he comes within the apparent policy of the legislature to treat with a degree of leniency the dependants of employees who are killed by accidents directly attributable to their having been at the time of the accident under the influence of alcohol. We would exercise the court's discretion in favour of allowing the applicant the compensation provision for by the Ordinance, without any deduction."

27.The Deceased died leaving a young wife, an infant son and an aged father. It would be a fit and proper case for the exercise of the S.5(3) discretion to award the compensation to the Applicant even if the Deceased was recklessly smoking in the storeroom after spilling himself with thinner negligently.

28.As there was no evidence to suggest any serious or wilful misconduct on the Deceased's part, reliance on S.5(3), therefore, will not be necessary. Under the circumstances, the cause of accident is inconclusive and uncertain. Hence, I am satisfied that S.5(4) is in the Applicant's favour.

29.It follows that the conclusion is the Deceased died in the course of employment for the presence of the Deceased at the 1st Respondent's storeroom at the site was a natural incident connected with the class of work described by Lord Dunedin in Davidson v. M' Robb.

Quantum

30.The amount of compensation under S.6 has been agreed by the parties based on the Deceased's monthly salary of $18,240 :

$18,240 x 60 = $1,094,400.00

Funeral expenses under S.6(5) $21,644.00.

31.Interest on the funeral expenses shall be at 1/2 judgment rate from date of application to date of judgment.

32.Apportionment under S.6A and the 7th schedule paragraph 6 of the Ordinance, shall be :

Applicant	45%
Son of Deceased	45%
Father of Deceased	10%

33.Costs to the Applicant to be taxed if not agreed with certificate for counsel. The Applicant's own costs to be taxed in accordance of Legal Aid Regulations.

34.Finally, I wish to thank Counsel for their assistance in the course of these proceedings.

Representation:

Mr. Simon Leung instructed by Messrs. Hastings & Co. assigned by DLA for Applicant

Mr. Kenny Lin instructed by Messrs. Henry H.C. Wong & Co. for both 1st and 2nd Respondents