Yiu Yun Sang v. Hong Kong Telephone Co Ltd

CACV000131/1983

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Barker, J.A. & Rhind, J.

Date of Judgment: 23rd November 1983

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JUDGMENT

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Sir Alan Huggins, V -P.:

1. This is an appeal against the dismissal of an application for workmen's compensation under the Employee's Compensation Ordinance. I would like to say at the outset that counsel on both sides have been placed in grave difficulty by reason of the lack of evidence which was called at the trial. For this, of course, the trial judge was in no way to blame but there are certain matters which do appear on the record as having been raised in evidence and which were left uncertain  matters upon which questions ought to have been asked by the judge if they were left unasked by counsel.

2. This, like so many workmen's compensation cases, is a case where what precisely happened will never be known. The Deceased was a member of a team of five, who were engaged in the repair of telephone lines. A cable ran underneath the road in Wanchai and access to it was obtained by two manholes in the street. The deceased and one colleague were in one manhole, there were two others in another manhole and there was a supervisor, Mr. So, who was in charge of the party and who was the only qualified technician. Without him no work could be done. Work proceeded until 1 a.m. on the night in question. The whole party then went off to a snack bar. They left the job. The manhole in question was one 4 foot by 3 foot by 5 foot deep. What was inside except one cable and a concrete floor we do not know. It was covered by a tent, the size of which we do not know. The tent was normally illuminated by a generator - a petrol driven generator which stood outside the tent and which produced electricity for two lights - and also for some tools when required. It would appear - although this is not by any means certain - that there was a main switch on the output side of the generator and a switch on each of the two lights.

3. When the party went to have their snack, the generator was turned off and the door of the tent was closed. An hour later the Deceased and his mate returned. There was evidence that Mr.  So, the supervisor, also returned but there was also evidence that he did riot return at all. In any event Mr. So, whether he left the others at the snack bar or at the manhole, was not feeling well. He then left the party, having told them to clear up the tools. There was a debate as to whether or not he had told them that they could go to sleep, either together or one at a time. Be that as it may, these two men closed the door and the vents of the tent after going into it, and when somebody came to take over on the next shift at 8 o'clock the following morning he found both men unconscious, the Deceased being in fact dead. He had died from carbon monoxide poisoning, the carbon monoxide being contained in some gas which had escaped from a gas main down the road. The man, Mr. Fung, who went in at 8 a.m. thought that they were playing a trick on him. It would appear that the Deceased was a light-hearted man who had on previous occasion played tricks. Mr. Fung thought that the Deceased was in fact pretending to be asleep. He did not at first notice the other man down the manhole, as the Deceased was leaning against the side of the tent. Exactly what position he was in is one of the things which was never really cleared up. The answer given by the witness did not show whether he was merely sitting on the pavement or whether his head was touching the pavement. Probably it was the former.

4. The question then arose Was this Applicant entitled to workmen's compensation in respect of the death of the Deceased? The judge rightly said that the outstanding issue which he had to decide was whether the accident arose out of and in the course of the employment. Counsel for the Employer had, during his closing speech,  appeared to concede that the accident did arise in the course of the employment and to base his argument solely on whether it arose out of the employment. The judge appears to have accepted that that was the position: see page 16 of the record: see also page 17, where he further said that the Employer's solicitor admitted that the presumption under section 5(6) arose. That was a presumption which arose only if it was shown that the accident did arise in the course of the employment. Nevertheless, later on in his judgment (in particular at page 21) the judge went on to consider what was meant by the words "in the course of the employment" - that which had apparently been conceded. He appears then to conclude that the Deceased was not in the course of his employment because he had interrupted his work for his own purposes and had taken himself out of his employment. This interruption was, the judge said, based upon his finding that the Deceased had deliberately gone to sleep and that, in so doing, he was doing something of a kind entirely different from anything he was employed to do and which obviously was not reasonably incidental to his work. That, of course, was a very different approach from one which involved finding that the presumption under section 5(6) had been rebutted.

5. Whatever was the effective basis of the judge's decision, it was fundamental to his decision that the Deceased had gone deliberately to sleep, and, if that finding was unjustified, the appeal must succeed. That much is accepted by Mr. Allman-Brown for the Employer upon the appeal.

6. The finding in dispute was an inference drawn by the judge from the evidence as a whole: see page 20 of his judgment. The intention to go to sleep appears to have been inferred from three things: first, the fact that the door and the vents of the tent had been closed; secondly, the alleged switching off of the generator and the lights; and, thirdly, that apparently these two men did not smell gas and take precautions to avoid the effects on it. Now as to the closing of the door and the vents this seems to me to be entirely equivocal. It is accepted that it was a cold November night and nothing was more reasonable that two men who had to spend the rest of the night in the tent should close the vents in order to keep warm. Then there is the alleged switching off of the generator and the lights. This seems to me to be the only matter of difficulty in the case. There was evidence that, when the supervisor left, the generator was going and the lights were on. The lights would not have been on, we may assume, if the generator had not been going. There was no evidence that on the following morning anybody took the trouble to ascertain whether the generator was still connected to the lamps - whether the switches were on or off. The generator was not working, that we do know. We also know that there was petrol in the tank. What caused the generator to stop we do not know: the generator was situated outside the tent and consequently it was not due to the gas that the engine stopped, but what did cause it to stop we cannot tell. The suggestion is that it was because they had themselves switched off the generator: this indicated that the two men had deliberately planned to go to sleep. It must be mentioned that there was street lighting in the vicinity. To what extent this illuminated the inside of the tent we do not know.

7. What is perhaps important is that the judge did not in the course of his judgment show that he had considered the contrary evidence given by Mr. So at the inquest on the Deceased. There was put in evidence the whole of the depositions at this inquest and this has caused a great deal of difficulty. In my view this evidence was admitted, according to the record and on such in as we have been given aliunde, solely in relation to the credit of the witnesses. Letters were sent between the solicitors. The Applicant sought to rely on the depositions, on a medical report, on a post-mortem examination report and on a report of a factory inspector and wrote to the solicitors for the Employer accordingly. They replied that they agreed that the depositions were an accurate report of what was said at the coroner's inquest but added that in that respect they agreed the document   although they did not agree the contents. They agreed the contents of the medical report and post-mortem examination report and did not agree the report of the factory inspector. The note made by the judge at the time the documents were referred to (before any of the witnesses gave evidence) was, perhaps, equivocal, but in my view the only proper way to approach this evidence was on the basis that the depositions were admitted solely for the purpose of testing the credibility of any witnesses who gave evidence contrary to what was said in that deposition. Thirdly, there was the failure to smell gas and to take precautions. This again seems to me to be equivocal. The learned judge himself accepted that he did not have before him expert evidence. There had been expert evidence given at the inquest, although not very fully. It is impossible for us to say that the two men must have smelt gas if it had been present. The learned judge heard the second man - the one who was found unconscious - as a witness in the trial. He formed a very poor opinion of him as a witness. He decided that he was not honest and not reliable. Whether or not that conclusion was justified, in my view we are bound by it. At least one of his reasons for disbelieving the witness is open to question. That was his failure to smell gas when he went inside the tent on his return from taking a snack. On the judge's own judgment it appears that the judge was inconsistent as to when the seepage of gas occurred. It was argued on behalf of the Employer that the disbelief of this witness in some way prejudices the case of the Applicant and makes it weaker than it otherwise would be. With great respect I think this is a fallacy. In my view the fact that the evidence given on behalf of the Applicant was disbelieved in no way proves the contrary. Mr. Kwan said that he was overcome either while he was clearing up the tools or shortly afterwards and said that he did not go to sleep. In my view the fact that he was disbelieved as to that,cannot possibly amount to positive evidence that the two men did go to sleep.

8. There was a presumption that the two men, having been at their place of work during their hours of work, would continue to be in the course of their employment during the hours of their employment. It was a presumption of continuance which had to be displaced by the Employer, though not necessarily on evidence which he adduced.

9. If the Deceased did deliberately go to sleep, contrary to my view as to the judge's finding, then I would respectfully agree with the learned judge in the view that he took as to the law. There was in fact to evidence that sleeping was forbidden. Mr. So, the technician, did say that, if one of the men had taken a nap whilst the other was on guard, it would be wrong on their part. The judge appears to have accepted that, but his finding is open to attack because he does not refer in his judgment to the clear evidence at the inquest to the effect that they were to nap by turns. That is what Mr. So had said before the coroner. It was, of course material only as to the credibility of the witness. The fact that these two men, if they went to sleep deliberately, were in breach of their orders does not necessarily mean that they ceased to be in the course of their employment:   see the words of the statute itself.

10. It seems to me that the first question one has to ask is whether at the moment of the accident the Employer would have been entitled to give the workmen an order. That is a test taken from St. Helens Colliery Co. Ltd. v Hewitson 1924 A.C.59 at p.92. In the present case quite clearly, if Mr. So had come back on the scene and said now they were going to get on with the job, then these two men ought to have obeyed and done what they were told. That, however, is not the entire answer. The fact that something is done during the hours of employment does not necessarily mean that it is in the course of the employment, but it does raise a prima facie case. The question then is whether they had done anything which was so far outside the scope of their employment that the employment had been interrputed. There is a finding of fact by the judge that sleeping in the circumstances of this case was not properly in the course of their employment. If his finding had been justified I would have agreed with him and not been prepared to say that he was wrong in his conclusion. However, for the reasons which I have given, I am satisfied that the learned judge was not entitled to find on the evidence that these two men deliberately set out to go to sleep. I recognise that there is the difficulty of the stopping of the generator, but how that happened, we do not know and I think that there was prima facie that these men were in the course of their employment and that that employment had not been interrupted.

11. For these reasons I would allow this appeal and enter judgment for the Applicant in the amount which was found by the judge in case the matter should be taken on appeal.

Barker, J.A.:

12. I agree and would add merely this. I very much doubt whether, were it to be necessary to decide the matter, the judge's findings as to the credibility of Kwan Man-biu and So could stand. His reasons for disregarding Kwan Man-biu's evidence and saying that he was not an honest and reliable witness were based on matters which ought not to have been considered by the judge, because they were based on matters which were contained in the coroner's notes to which he was not entitled to refer, and, as to Mr. So, he denied at the trial that at the coroner's inquest he had said that his colleagues were to nap by turns. What the judge totally failed to mention, or probably even to realise, was that it was agreed by both parties that Mr. So in fact had said at the inquest that his colleagues were to nap by turns, and that was of course a most important matter in this case, vitally affecting Mr. So's credibility. However, that is a matter which is not necessary for this court to decide and, for the reasons which have been given by My Lord the Vice-President, I agree that this appeal should be allowed and the order made.

Rhind, J.

13. I agree with the learned Vice-President and there is nothing I wish to add.

23rd November 1983