Ng Oi-wa v. Lamp's Co
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CACV000129/1980 [Workmen's Compensation - workman employed on upper floor of multi-storeyed building - killed on staircase on way to work - held to be an accident arising out of and in the course of his employment.]
----------------- Coram: Roberts, C.J., Leonard and Cons, JJ.A. Date of Judgment: 29 October 1980 ----------------- JUDGMENT ----------------- Cons, J.A.: 1. This is an appeal against the refusal of His Honour Judge Baily to make an award to the plaintiff under the Workmen's Compensation Ordinance, Cap. 282. No evidence was adduced at the hearing and the trial before the judge proceeded on agreed facts. So far as is material to this appeal they were that the plaintiff's husband was employed by the defendant at factory premises on the 23rd floor of a 25-storeyed building; that as the husband was going to work one morning, proceeding up the building either by the lift or the staircase, he was over come and killed by a fire that took place on the 17th floor; that the owners and occupiers of the 17th floor had no connection with either the husband or the defendant. 2. Two issues arise upon these facts, namely, was the accident in the course of the husband's employment, and did it arise out of that employment? "In the course of". 3. At the trial it was conceded by counsel for the employer that the accident occurred in the course of the employment. At one stage we queried whether that concession had been wisely made, for the workman had not yet reached his place of employment and we were inclined to doubt that the lift or staircase of a multi-storeyed building under the control of someone other than the employer was sufficiently similar, as a means of access, to the private railway platform that founded liability in the case of Weaver v. Tredegar Iron and Coal Co. Ltd.(1). 4. It is curious that there appears to be no direct authority on the question of "flatted factories", for they have been common for quite some time. We think, however, that it may be answered by analogy. In John Stewart & Son (1912) Ltd. v. Longhurst(2) a carpenter was employed to repair a barge lying in a dock. After finishing work one night he started to walk along the quay to the dock gates but fell off the quay and was drowned. The dock was private property, not open to the public, but the man's employer and the workmen had leave to pass through the dock on their way to and from the barge. It was held that in as much as the man was in the dock premises solely by virtue of his contract of service the accident arose out of and in the course of his employment. 5. We can see no distinction between private premises which intervene horizontally and those which intervene vertically. In each case the workman has to pass through them in order to reach the place where he is required to work. We think, therefore, that where a workman, whose place of employment is on an upper floor of a multi-storeyed building, makes use of the common parts and services of that building in order to reach or leave his place of employment, then he is in the course of his employment while so doing. We feel this is the natural application of the older principle to modern conditions. "Arising out of". 6. The next question is whether the accident in the present case arose out of the employment. The correct test to be applied in this respect was laid down in the same year by the House of Lords in Margaret Thom or Simpson v. Sinclair(3). There a workman was injured when the roof of the shed in which she was working was brought down upon her by the collapse of a wall in a construction site next door. After reviewing the authorities up to that time Viscount Haldane came to the conclusion at p.136 that it was
The other two speeches in the House put the test in similar words. 7. A Respondent's Notice, which has yet to be filed, seeks to uphold the judge's decision on the ground that
8. We think this point is met decisively by other comments of his Lordship, also at p.136:
and later in the same page:
9. Then it is argued that an employer is only responsible if the place in which he has required his workman to work is from the nature of that place "a zone of special danger". The argument derives originally from the words of Lord Shaw in the same case at p.142:
In Lawrence v. George Matthews (1924) Ltd.(4) Lord Russell put it this way:
Lawrence, L.J. added a gloss in Holden v. Premier Waterproof and Rubber Co. Ltd.(5):
An illustration of what he had in mind is provided by Allcock v. Rogers(6) where during the First World War a workman was killed by a bomb while cleaning the brass plate at his employer's door. 10. With the greatest respect, the present argument is misconceived. It places too much emphasis upon the two words "danger" and "dangerous" in the dicta we have referred to. The Ordinance itself does not require the employer to protect his workman against the danger. That is a matter for the general law. What the Ordinance does require is that the employer should insure against the risks which his workman is forced to incur in the course of his employment. We do not for one moment suggest that the average lift or staircase in a multi-storeyed building is inherently dangerous. However, in making use of them a person must necessarily subject himself to some risk, whether it be from the carelessness of the surrounding occupiers, faults in construction or maintenance or whatever. Where a workman, as in the present case, is required to use the staircase or take the lift in the course of his employment, he is bound to run such risks. He does so solely because of his contract of employment. If therefore he suffers an injury from one of those risks it must be an accident arising out of his employment. 11. For these reasons we take the view that the plaintiff ought to have succeeded in her action. The learned trial judge came to a different conclusion upon grounds which are no longer pursued. The appeal must therefore be allowed, and judgment entered for the plaintiff in the sum of $43,200. Representation: Denis Chang (Director of Legal Aid) assigned for the appellant. R. Ribeiro (Ford, Kwan & Co.) for the respondent. (1) 1940 A.C. 955 (2) 1917 A.C. 249 (3) 1917 A.C. 127 (4) (1928) 21 B.W.C.C. 345 (5) (1930) 23 B.W.C.C. 460 at p.471 (6) (1918) 11 B.W.C.C. 149
----------------- Coram: Roberts, C.J., Leonard and Cons, JJ.A. ----------------- JUDGMENT -----------------
12. The above appeal related to proceedings under the Workmen's Compensation Ordinance, Cap. 282. When we allowed the appeal and made an award of compensation to the workman's widow, we were invited to award interest thereon. We did so. We are now given to understand that it might be of some assistance if we made a short record of our decision. 13. The nature of an award under the Ordinance is ambiguous. On the one hand, it may be looked upon as damages to compensate for future pecuniary loss. This view is particularly attractive where the plaintiff is the workman's widow or other dependant. In that case no interest ought to be awarded: Jefford v. Gee(1). 14. On the other hand, the award may be regarded as a sum which becomes automatically payable upon the occurrence of an accident, whether fatal or otherwise, in which case interest should be awarded as from that moment. 15. We think the latter view is to be preferred. In the vast majority of cases the award is an arbitrary figure fixed simply in relation to the workman's wages*. It is not a figure assessed by the trial judge with regard to actual or probable loss. Only in rare cases is the judge left with a discretion, for example, under section 6(b) or section 8. Even then his discretion is severely restricted. As we accepted in our judgment proper, an award is more in the nature of insurance monies than compensation. 16. Section 14 provides that notice of an accident shall be given to the employer "as soon as practicable after the happening thereof". As a general rule, interest should run from the date when that notice is served. 17. Notice is in effect not necessary where the accident is fatal and occurs on the premises of or under the control of the employer or where he has timely knowledge of the accident: section 14(1) (a) and (b). In that instance interest should run from the date of the death or accident. Where lack of notice is excused upon other grounds the judge should exercise his discretion according to the particular circumstances. 18. In the appeal before us the employer was made aware of the death on the day when it occurred. We therefore ordered the award to bear interest from that time until the decision on the appeal and at a rate which took into account the various changes in lending rates that had occurred during that period. (1) [1970] 2 Q.B. 130 at 147
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