Cheung Kai Chi v. Cheung Kin Keung and Another

DCEC 415/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 415 OF 2003

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BETWEEN

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Before: His Honour Judge To in Court

Date of Hearing: 12 October 2004

Date of Judgment:  25 October 2004

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J U D G M E N T

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Introduction

1.This is an application for Employees’ compensation by the wife of a deceased worker (the “Deceased”).  The Deceased was employed as a welder ganger by the 2^nd Respondent at a construction site near Choi Hung Park and Ride Development (the “Construction Site”) of which the 1^st Respondent was the principal contractor.  He was fatally injured near the back of a crawler crane at the Construction Site on 13 March 2002 at 11:05 am at a time when he was under the employ of the 2^nd Respondent.  No one knows how the incident which resulted in his death occurred.

2.The evidence is not in dispute.  The Accident Report prepared by the Labour Department as well as statements from the other workers on the Construction Site were admitted in evidence under two hearsay notices issued to the Respondents.  The Respondents’ defences are that the Deceased’s death was not the result of an accident and even if it was the Applicant has failed to prove that it arose out of an in the course of the Deceased’s employment with the 2^nd Respondent.    

Accident or homicide

3.Mr Shum referred to a reference in notes of proceedings in Kwun Tong Magistracy when the Respondents were prosecuted for breaches of safety regulations that the driver of the crawler crane was being investigated for homicide.  He said that there were two possibilities for the Deceased’s death, namely an accident or a homicide.  He submitted that the Applicant bears the burden of proving that the death was caused by an accident and not a homicide and that the accident arose out of and in the course of the Deceased’s employment.

4.The incident, to use a neutral word, occurred during his working hours at the Construction Site where the Deceased was employed to work.  At sometime after 9:00 am, the foreman saw the Deceased giving instructions to his colleagues about setting railings at the Construction Site.  He was last seen alive at about 10:30 am by another worker Chu Ying Chung examining the drill head behind the crawler crane, where he was later found dead.  Between 10:45 am and 11:05 am, the crawler crane was being operated to hoist a heavy object near the site entrance.  The foreman was giving directions to the driver of the crane through another signaller.  Then at about 11:05, while the foreman was giving direction to the driver of the crane, he heard someone shouting for help.  He went to the back of the crane and saw the Deceased lying behind the crawler crane near to the drill head.  The Deceased was wearing protective clothes and gloves.  His protective helmet with his name, his cap, a pair of broken goggles and a watch were found in the vicinity.

5.The Deceased was certified dead upon arrival at the hospital.  Dr Ng Chung Ki of Forensic Pathology Service of the Department of Health who prepared the autopsy report in respect of the Deceased found numerous abrasions and bruises over the Deceased’s body, fracture-separation between the 5^th and 6^th cervical vertebra with complete transaction of spinal cord, fractures of spinous processes of the 4^th to 7^th cervical and 1^st to 7^th thoracic vertebrae and fractures of left transverse processes of the 5^th to 7^th thoracic vertebrae.  He was of the opinion that the cause of the Deceased’s death was neck and chest injury.  There was negative finding of alcohol and no significant finding of drugs and poisons in the Deceased’s blood and urine.  These findings excluded the possibility that the Deceased died of natural or drug and alcohol related causes. 

6.According to the investigation of the Labour Department, while the crane was being operated for hoisting purposes the rear carriage of the crane would travel in a slewing motion creating a trapping area between the rear carriage of the crane and the drill head.  During the rescue operation of the Deceased, the crawler crane had to be moved forward.  A re-construction of the scene of the accident showed that a clearance between the dead end of the rear carriage of the crane and the drill head was about 15 centimetres.

7.The severity and multiplicity of the injury which resulted in the complete separation of the cervical vertebrae and severance of the Deceased’s spinal cord suggests that the injury was caused by mechanical force.  The location where the Deceased was found, the trapping area between the rear carriage of the crane and the drill head, the fact that at the material time the crawler crane was being operated which created a slewing motion all point to one and only one inference, that is the Deceased was crushed to death by the slewing motion of the crawler crane while he was trapped between the crane and the drill head. 

8.Though the driver of the crawler crane was being investigated for homicide, he was then operating the crane at the instruction of the foreman and the signaller.  His operation of the crane could not have been an act of revenge or act as a result of a personal grudge between him and the Deceased.  There was nothing to suggest there was any personal grudge between the Deceased and either the driver, the foreman or the signallers.  The only reasonable inference that could be drawn from all the circumstances is that the incident was an accident at the workplace.  The driver’s liability for homicide is at the highest one of manslaughter for an act of gross negligence and not a deliberate act of murder or revenge for personal grudge with the Deceased.  The possibility that incident was not an accident is one which I may safely discard as being far too remote.  I therefore find that the Deceased suffered fatal injury as a result of an accident which occurred at his place of employment.

In the course of employment

9.The phrase “in the course of employment” does not mean “during the period of employment”.  It connotes the idea that the employee is doing something which is part of his service to his employer: see Charles R Davidson & Co v M’ Robb or Officer [1918] AC 304.   It means in the course of the work which the employee is employed to do and what is incident to it – in other words, in the course of his service.

10.The Deceased was a welder ganger.  He was last seen 35 minutes before the accident examining the drill head where he was later found dead.  He was then wearing protective clothes and gloves which would be worn by workers performing welding work which was the kind of which for which he was employed.  His helmets, goggles and cap were found in the vicinity.  All these circumstances point to one and only one inference, that is the Deceased met his death in the course of the work which he was employed to do.  I therefore find that the fatal accident arose in the course of the Deceased’s employment with the 2^nd Respondent.

Arising out of the course of employment

11.Having found that the Deceased met the accident in the course of his employment, section 5(4)(a) of the Employees’ Compensation Ordinance deems the accident also to have arisen out of that employment.  The burden is on the Respondents to prove the contrary.  Apart from referring to the fact that the driver of the crawler crane is being investigated for homicide, the Respondents have utterly failed to adduce contrary evidence that the accident did not arise out of the course of the Deceased’s employment with them.  Having dismissed the possibility that the accident was the result of a deliberate act of revenge or murder, I am satisfied that the accident is deemed to have arisen also out of the Deceased’s employment with the 2^nd Respondent.  In fact, the only reasonable inference that could be drawn from all the circumstances of the accident as I have outlined above is that the accident also arose out of the Deceased’s employment.

12.The Respondents failed to show how they were not otherwise liable for compensation under section 5(2) of the Employees’ Compensation Ordinance.  The 1^st Respondent, being the principal contractor is jointly and severally liable with the 2^nd Respondent for payment of employees’ compensation in accordance with section 5 of the Employees’ Compensation Ordinance.

Compensation

13.The Deceased was aged 49 at the time of the accident.  His salary well exceeded the amount of $21,000 per month as specified in the Sixth Schedule.  I therefore assess the compensation in accordance with section 6(1)(b) to be $1,260,000.  (i.e. $21,000 x 60).   In addition, the Respondents are also liable to pay funeral expenses in the amount of $35,000.  Accordingly, I enter judgment in favour of the Applicant against the 1^st and 2^nd Respondents jointly and severally in the amount of $1,295,000 with costs.

Apportionment

14.The Deceased is survived by his wife, three children and a mother.  At the time of the accident, the mother was aged 84 and had been hospitalised for over two years in Kowloon Hospital.  Miss Chan submitted that the mother is disqualified as a member of the family of the Deceased for not having been living with the Deceased as a member of the same household for a period of 24 months and the compensation should be apportioned in accordance with Paragraph 5 of the Seventh Schedule.  With respect, the 24 months resident requirement does not apply to immediate parents of the employee under the definition of “member of the family” in section 2 of the Employees’ Compensation Ordinance.  In the circumstances, the apportionment shall be apportioned in accordance with section 6A and Paragraph 6 of the Seventh Schedule.  Accordingly, I apportion the compensation as follows:

The Spouse of the Deceased	45%	$567,000
Each of the three children of the Deceased	15%	$189,000
Mother of the Deceased	10%	$126,000

In addition, the Applicant shall be recompensed with the funeral expenses in the amount of $35,000.

Ms Winnie Chan, instructed by Messrs Christine M. Koo & Ip for the Applicant

Mr. Timon K. L. Shum, instructed by T. H. Koo & Associates for the Respondents