Leung Hak Chai v. Lamma Transportation Co Ltd

CACV 207/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 207 OF 2012

(ON APPEAL FROM DCEC NO. 599 OF 2010)

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BETWEEN

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Hon Stock VP:

1.I have had the advantage of reading in draft the judgment of Fok JA and I agree with it.

Hon Fok JA:

Introduction

2.This is an appeal from a judgment of Deputy District Judge K H Hui (as Hui DJ then was) dated 20 August 2012 whereby he dismissed the appellant’s application for compensation under the Employees’ Compensation Ordinance, Cap. 282, (the Ordinance) for an injury which the appellant claimed he sustained at work on 3 December 2009.  The sole issue in the appeal is whether the Judge was right to have held that the accident was not one arising out of and in the course of the appellant’s employment by the respondent.

The background facts

3.The appellant was a derrick crane operator.  He was employed by the respondent from June 2009 and was sent to work at Pontianak in Indonesia.  His job was to operate the crane on board a barge named, in English, the “Lamma No.8” (and in Chinese, “南亞8号”).  He was one of two crane operators on board the barge who worked round-the-clock on alternating four-hour shifts loading and unloading cargoes from ocean-going vessels.  He was sent to work in Indonesia for periods of “10 odd days to 20 odd days” at a time.  As well as performing his work as a crane operator there, he was expected to eat, sleep and rest on the “Lamma No.8”.

4.On 3 December 2009, the “Lamma No.8” was moored alongside a 35,000 tonne bulk carrier (the Vessel).  The Vessel was in the process of being loaded with bauxite.  The derrick crane on the “Lamma No.8” was being used to transfer bauxite from a flat-bottomed dumb barge moored on one side of the “Lamma No.8” into the holds of the Vessel moored on its other side.

5.At around 4.30 pm that day, the appellant jumped from the “Lamma No.8” onto the Vessel.  The circumstances and manner in which he came to jump from the “Lamma No.8” to the Vessel were a matter of some controversy between the parties at trial and it will be necessary to return to these matters in due course.  Be that as it may, following the appellant’s jump, he was discovered, with injuries to his lower limbs, on the deck of the Vessel and his colleagues, including his supervisor, Mr Leung Kang Fai (Mr Leung), were notified.

6.On 5 December 2009, the appellant was sent to a hospital at Pontianak for treatment.  He then flew back to Hong Kong on 6 December 2009 where he attended the Accident and Emergency Department at Princess Margaret Hospital and his feet were x-rayed.  This revealed that he had sustained fractures to the left and right calcaneum (i.e. the heels of both feet).  He was transferred to Tuen Mun Hospital for an operation. Thereafter, he received occupational therapy and physiotherapy as well as follow-up treatment at Tuen Mun Hospital.

7.The Employees’ Compensation (Ordinary Assessment) Board (the Board) assessed the appellant’s loss of earning capacity at 3.5%.

The hearing below and the Judgment

8.In claiming compensation under ss. 9, 10 and 10A of the Ordinance, the appellant appealed against the Board’s assessment of loss of earning capacity.  For its part, the respondent appealed against the Board’s finding as to loss of earning capacity and the period of absence from duty as a result of the injury.

9.It was also the respondent’s contention at trial that the appellant was not employed by it.  The “Lamma No.8” is owned by an Indonesian company, P.T. Ocean Global Shipping, and the respondent contended the appellant was employed by P.T. Ocean Global Shipping and not by it.  The Judge, however, found that the appellant was employed by the respondent and there is no cross-appeal by the respondent against that finding.

10.The Judge ruled in the appellant’s favour on the issue of the degree of loss of earning capacity.  He accepted the views of the parties’ medical experts who both agreed that the loss of earning capacity was 5% and so found.

11.However, on the issue of liability for employees’ compensation, the Judge ruled that the appellant had failed to prove that he went on board of the Vessel for the purpose of or for anything incidental to his employment (§61) and concluded that there was nothing to support the appellant’s contention that he was still in the course of his employment when he boarded the Vessel (§79) and so he dismissed the claim.  It will be necessary to return to the Judge’s reasoning leading him to this conclusion.

12.The Judge went on to explain that, had he not dismissed the claim but instead ruled in favour of the appellant, he would have awarded by way of compensation: (1) $75,600 under s. 9 of the Ordinance; (2) $266,372 under s. 10 of the Ordinance (this ruling being based on the Judge’s dismissal of the respondent’s appeal against the Board’s finding as to the period of absence from duty); and (3) $7,294 under s. 10A of the Ordinance.  Thus, the total amount of compensation would have been $349,266 with interest.

The rival contentions on the appeal

13.Mr Neville Sarony SC, for the appellant, advanced a number of grounds in support of the contention that the Judge was wrong not to have concluded that the appellant’s injury was one arising out of and in the course of his employment.  Essentially, the crux of the appeal is that the Judge was wrong to hold that the appellant’s failure to provide a credible explanation for why he boarded the Vessel (the Judge having rejected the appellant’s story as to the need to go aboard to check for obstructions that might interfere with the operation of the derrick crane) should have led him to the conclusion that the appellant was no longer in the course of his employment when he did so.  However, as a fallback, it was contended that the Judge’s finding rejecting the appellant’s reason for going on board the Vessel was wrong and should be overturned.

14.On the other hand, it was contended by Mr Michael Ozorio SC, for the respondent,[1] that the Judge was correct to reject the appellant’s story as to why he needed to board the Vessel and also correct to reject his evidence that the injury was caused by a slip and fall after he had boarded the Vessel.  That being so, it was contended that the Judge was right to conclude that the appellant had failed to discharge the burden on him to prove that the injury was one arising out of and in the course of the appellant’s employment.  This being a finding of fact based on the Judge’s assessment of the credibility of the witnesses, this court should be slow, Mr Ozorio submitted, to overturn it.

15.By way of respondent’s notice, the respondent also contends that, first, the Judge should have made an express finding that the appellant’s injury resulted from his jumping from a height and not from a slip and fall after the jump onto the Vessel; and, secondly, that the injury was attributable to the appellant’s own serious and wilful misconduct or an added peril so that, even if the injury arose out of and in the course of the appellant’s employment, compensation should be disallowed by reason of s. 5(3) of the Ordinance.

The court’s approach on this appeal

16.There is no dispute that the burden rests on an employee claiming compensation under the Ordinance to prove that the personal injury on which he makes his claim is one caused by an “accident arising out of and in the course of the employment”: see s. 5(1) of the Ordinance.  In Wong Hei Chun v Siu Fat Engineering Co., unrep., CACV 54/1996 (28 June 1996), Godfrey JA held, following Hawkins v Powells Tillery Steam Coal Company Limited [1911] 1 KB 988 at p. 995, that the claimant had “to show with reasonable clearness that the accident did actually come from the employment”.

17.Nevertheless, it is important to remember that, in an employees’ compensation claim, the court is not concerned to ascertain how the accident occurred in order to determine fault.  As Ribeiro PJ held in LKK Trans Ltd v Wong Hoi Chung (2006) 9 HKCFAR 103 at §36:

“Such a notion [that the compensation payable by an employer should be confined to compensation for incapacity caused by injury arising out of the employment for which, in broad terms, the employer is responsible] is closely allied to a concept which forms no part of the statutory scheme, namely, that of the employer’s fault. If it were a fault-based scheme, the legal focus would be on the circumstances of the claimant’s employment in which the injury arose, and the argument that the compensation should relate only to consequences tied to those circumstances would have much force. But, as everyone agrees, the Employees’ Compensation scheme is a no-fault scheme aimed at giving quick financial relief to employees incapacitated by work-related injury. It is a scheme whereby the community, through the cost-sharing device of compulsory insurance permits employees so incapacitated to look to their employers for compensation having regard to the extent of the incapacity suffered, regardless of any fault on the part of the employer and regardless of the circumstances in which the work accident arose.”

(Emphasis added)

18.Whether an accident occurred in the course of an employee’s employment is a mixed question of fact and law.  However, insofar as the Judge made primary findings of fact on which his conclusion on the “course of employment” issue was based, in order to reverse such a finding of fact, it is trite this court must be convinced that this finding is plainly wrong in the sense that either there is no evidence to support it, or that it is contrary to documentary or other incontrovertible evidence that the Judge overlooked: see Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336 at §§41-46 and A Solicitor v The Law Society of Hong Kong, unrep., CACV 302/2002 (18 February 2004) at §19.

19.Although an appellate court is always slow to reverse a judge’s finding of fact, it is, nevertheless, open to this court to do so on the critical issue here if, on an examination of the evidence, we are satisfied that he was wrong and that the only proper conclusion for him to have reached would have been that the appellant’s injury was one which arose out of and in the course of his employment by the respondent on 3 December 2009.

The Judge’s approach

20.The Judge identified the key issues at trial before him as being (i) whether the appellant was an employee of the respondent at the time of the accident; and (ii) “whether the [a]ccident was arising out of and in the course of the employment of the [appellant]” (§27).

21.So far as issue (i) was concerned, as already mentioned, the Judge resolved this in favour of the appellant (§§33-43) and there is no cross-appeal on that finding.

22.As to issue (ii), the critical issue in this appeal, the Judge correctly identified s. 5(1) of the Ordinance as the operative section and it is useful to be reminded of its terms.  It provides:

“Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”

23.The Judge also correctly stated (§46) that the burden was on the appellant to establish that the injury he sustained arose out of and in the course of the employment with the respondent.

24.Although the Judge accepted the submissions of the appellant’s counsel below[2] that the appellant’s employment required that he spent all his working time, meal times, rest and sleeping times on board the “Lamma No.8”, the Judge then proceeded to analyse, in a section of the Judgment entitled “The reason to get on board of the Vessel”, whether the appellant could establish that he went on board the Vessel for the purpose of or for something incidental to his work (§51).

25.The Judge rejected the appellant’s evidence (§§52-60), which was to the effect that he was about to start loading one of the holds of the Vessel with bauxite and had to go on board the Vessel to check if there were any obstructions on the Vessel that might interfere with the operation of the boom of the derrick crane on the “Lamma No.8”.  Having rejected that evidence, the Judge held:

“61. It is my ruling that the [appellant] has failed to prove that he went on board of the Vessel for the purpose of or for anything incidental to his employment.

…

79. I have considered all the evidence and the submissions of the parties.  Since the [appellant] did not get on board of the Vessel to check if there was anything that may obstruct the operation or the swing path of the derrick crane/derrick boom, there is nothing to support the [appellant’s] contention that the [appellant] was still in the course of his employment when he got onto the Vessel.”

How did the injury happen?

26.Before dealing with the critical issue in the appeal, it is convenient to dispose of a peripheral point that occupied some time at the trial and features in the respondent’s notice.  That point concerns the precise manner in which the appellant came to get on board the Vessel and which the Judge dealt with in a section of the Judgment entitled “The Jump”.

27.At trial, the respondent’s case was that the appellant jumped from the roof of the cabin structure at the stern of the “Lamma No.8” onto the deck of the Vessel some 10 feet or more below.  For his part, perhaps realising in hindsight the foolhardiness of such a manner of boarding the Vessel, the appellant’s case was that he had jumped only 3 feet when both the roof of the cabin structure on the “Lamma No.8” and the deck of the Vessel were level with each other.  He then said that, having landed safely and without injury, he stepped forward on board the deck of the Vessel but then slipped and fell on some sand or oil that was on the deck, at which point he injured himself.

28.The Judge rejected the appellant’s account of how he boarded the Vessel and accepted the evidence of Mr Leung that the roof of the cabin structure on the “Lamma No.8” was 10 feet higher than the deck of the Vessel (§67).  Oddly, he rejected the respondent’s contention that the medical evidence did not support the respondent’s case that the appellant could not have broken the bones in his two heels if he simply slipped and fell forward while standing (§74).  He seems to have considered that the parties’ medical experts were agreed that the fractures were compatible with the appellant’s description of the injury, namely as recorded in their joint medical report where the appellant indicated “he slipped and fell forward and sustained injury to both heels”.

29.It is not necessary to dwell on this issue.  The parties are now agreed that the fractures to the appellant’s heels must have been caused by his landing from a height.  This conclusion is a matter of common sense, given the nature of the injury, and consistent with various descriptions of the injury in the initial description of the accident in the Accident and Emergency records, the appellant’s report to the Labour Department and Mr Leung’s description of what the appellant told him.

30.In the light of the acceptance of Mr Leung’s evidence as to the height difference between the roof of the cabin structure on the “Lamma No.8” and the deck of the Vessel, the respondent seeks, by way of respondent’s notice, an express finding that the injury resulted from his jumping from a height rather than a slip and fall.

31.Despite the fact that the Ordinance does not require the court to inquire into the circumstances in which a work accident arises, since this finding is not disputed by the appellant, I would hold that such an express finding can and should be made by this court.

The critical issue in the appeal and how it should be approached

32.As already mentioned, the critical issue in the appeal is whether the accident was one arising out of and in the course of the employment of the appellant.  I have also set out the provisions of s. 5(1) of the Ordinance, which invokes two separate concepts of an accident “arising out of and in the course of the employment”, the word “and” in that phrase being conjunctive.

33.In Hatzimanolis v Ani Corporation Ltd (1992) 106 ALR 611, a decision to which I shall return, the High Court of Australia considered a claim for workers’ compensation under the relevant New South Wales legislation which provided for compensation for “personal injury arising out of or in the course of employment” (emphasis added).  In his separate concurring judgment, Toohey J commented (at p. 620) on the earlier legislation which, like s. 5(1) of the Ordinance, had used the phrase “arising out of and in the course of employment”:

“The early workmen’s compensation legislation required that there be personal injury ‘arising out of and in the course of employment’. One of the first text-book writers on the subject commented:‘These phrases have separate and distinct valuations.’ Because of the conjunctive nature of the statutory requirement, emphasis tended to be placed on ‘employment’, which Beven described as covering: ‘all that class of acts which ordinarily or reasonably fall to be done by those engaged in the work assigned to the workman.’” (Emphasis added)

34.In Dover Navigation Co Ltd v Isabella Craig [1940] AC 190 at p. 199, Lord Wright explained the difference between the two distinct concepts as being that the words “in the course of” a man’s employment “relate to time conditioned by reference to the man’s service” while the words “out of” relate to “causality”.

35.It is therefore necessary to keep in mind that there are two distinct and separate matters to be inquired into under s. 5(1) on a claim for compensation.  In some cases, it will be obvious that both the “arising out of” and “in the course of” requirements are satisfied and adopting a strict two-stage inquiry may be seen as being somewhat formal and rigid.  However, in others, it may be less obvious or there may be an issue raised by the employer as to one or other of the requirements, in which case, it would be appropriate for the judge hearing the application for compensation to adopt the approach of asking (1) whether the injury by accident was sustained in the course of the employment, and then, if it was, asking the next question (2) whether it was an injury arising out of the employment.

36.This two-stage approach is consistent with the scheme of the Ordinance which contains, in s. 5(4) a series of deeming provisions, the first of which is s. 5(4)(a) (and which the Judge referred to at §45), which provides:

“(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”.

37.Thus, if the judge is satisfied the injury by accident was sustained in the course of the employment, the deeming provision will apply to deem the accident to be one arising out of the employment, unless there is evidence to the contrary.  A clear illustration of the application of this two-stage approach to determining liability for compensation under the Ordinance can be seen in Lam Sik v Sen International Ventures Corp (HK) Ltd [1994] 3 HKC 405 at pp. 407D-408E.

38.I have described above the Judge’s approach to the issue whether the accident was one arising out of and in the course of the employment of the appellant.  He did not adopt the two-stage approach which a s. 5(1) inquiry requires and it is to that two-stage approach that it is now necessary to turn.

Stage 1: the “in the course of the employment” requirement

39.As noted, this requirement looks to a temporal connection between the injury and the employment.  Here, the injury was a physical one sustained immediately upon the occurrence of the accident but was the accident one occurring in the course of the appellant’s employment?

40.As Windeyer J put it in Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30 at p. 40:

“… anything at all that happens to a man while he is at work happens in the course of his employment and if it happens unexpectedly, it is an accident in the course of the employment.”

41.In the ordinary case, therefore, one is looking in general terms to see if the accident has occurred to the employee at his place of work and during his time of work.  Note, however, that the connection is with the “employment” and not the “work”.  The employee does not have to be working at the actual time the injury is sustained and may temporarily not be working, for example when an office worker visits the lavatory or takes a short break for a cup of tea or coffee.  These are plainly examples of matters which are part of or incidental to the employee’s service, since (leaving aside exceptional cases where they might be expressly prohibited) they are things that employers will generally permit an employee to do during their work hours.

42.In Hatzimanolis, a case concerning an injury sustained by a worker employed to work in a remote area in Western Australia when he was a passenger in a vehicle arranged by his employers for a sightseeing trip on a Sunday when he was not working.  The High Court of Australia held the injury was sustained in the course of his employment. However, in seeking an organising principle to identify what were acts incidental to employment, Mason CJ (giving the principal judgment for the court) said (at p. 615):

“Since Oliver, appellate courts have upheld many awards of compensation in favour of workers in cases where injury has occurred away from the place of work, outside of or between working hours, and while the worker was engaged in an activity which is ordinarily performed for private necessity, convenience or enjoyment. … In Danvers v Commissioner for Railways (NSW), for example, a railway worker died when a van, provided by his employer for his accommodation, caught fire during the night. The van was moved from work site to work site. On the day of his death, the worker had finished work at about 4 pm and had no further duties to perform until the following morning. Nevertheless, this court, reversing the Court of Appeal of New South Wales, held that it was open to the Workers’ Compensation Commission to find that the worker’s death occurred in the course of his employment. Barwick CJ, with whose judgment Kitto and Windeyer JJ agreed, adopted the statement of Dixon J in Henderson that doing what was reasonably required, expected or authorised to be done in order to carry out duties may include being at a place at which the workman’s presence ‘is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment’. …”

43.At p. 617, Mason CJ continued:

“The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day’s work has ceased lies not so much in the employer’s attitude to the way the interval between the periods of actual work was spent but in the characterisation of the period or periods of work of those employees. For the purposes of workers’ compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work as a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.”

44.An unusual application of the Hatzimanolis principle is to be seen in the decision of the Federal Court of Australia in Comcare v PVYW (2012) 295 ALR 65.  There, a female employee of a government agency was required to travel to a country town to observe a budgeting process and meet local staff of the agency.  She stayed at a motel booked by her employer.  One evening, she met a male friend who lived nearby and, after dining together, they went to the employee’s motel room where she was injured whilst engaging in sexual intercourse when a glass light fitting above the bed was pulled from its mount and fell on her, causing her injuries to her nose and mouth, as well as a psychological injury.  It was held, applying the Hatzimanolis principle, that she was injured in the course of her employment and that an employer is to be taken to anticipate, accept and implicitly authorise normal self care activities by an employee during the course of their employment including sleeping, showering, toileting, eating and the like.  An appeal against that decision in Comcare has been heard and, as at the date of this judgment, the decision of the High Court of Australia is awaited and it remains to be seen if the decision on those particular facts is upheld.

45.Reverting to the facts of the present case, I have already referred to the evidence concerning the appellant’s employment, the nature of which was that he was required to travel from his home in Hong Kong to a remote part of Indonesia, there to be available to work on a 4-hour rotating-shift basis as one of two crane operators for between 10 and 20 days per session.  He was paid a daily rate of wages of between $1,200 and $1,300 for each session.  His meals were provided by the respondent and he ate and slept on the barge, where he was required to live whilst in Indonesia.

46.In my opinion, applying the principle identified in Hatzimanolis, the injury arising from the accident in this case was one which occurred “in the course of” the appellant’s employment since in the particular prevailing circumstances the accident happened within the time and place of his employment and the Judge should have so held in answer to the first stage of the inquiry.

47.For the respondent, Mr Ozorio submitted that the court should take a narrow view of the facts and hold that the appellant’s place of work was confined to the “Lamma No.8” and that his time of work was further confined to when he was actually operating the crane to load bauxite into the holds of the Vessel.  He referred to the evidence of Mr Leung which was that it was not necessary for crane operators like the appellant to board the vessels they were loading or unloading, the checks the appellant claimed he needed to do were unnecessary, no one from the “Lamma No.8” was allowed to board the Vessel without the authority of its master, only Mr Leung as the ganger of the crane operators on the “Lamma No.8” could and was required to get onto the Vessel but that was with the master’s authority.  Mr Leung’s statement included the contention that, at the time of the accident, the appellant was not working and the hearsay statement of the appellant, when Mr Leung asked him how he came to be injured, that he jumped “for a personal matter”.  Finally, Mr Leung speculated that the appellant might have gone onto the Vessel in order to get a better signal for his mobile telephone, that being something that his supervisor, Mr Leung, had himself done so.  Mr Leung’s evidence was that it was not necessary for crane operators such as the appellant to board the vessels onto which they were loading or from which they were unloading bulk cargoes.

48.I do not agree that the court should take this narrow view of the facts.

49.As to the time when he was working, it is, in my view, highly artificial in the circumstances of this case to suggest that the appellant was only acting in the course of his employment when operating the derrick crane to load bauxite onto the Vessel.  His employment involved his living on the “Lamma No.8” and he was required to be there as part and parcel of his employment.  He was not in a position to go elsewhere during his leisure time and it seems to me unreasonable and inimical to the policy of the legislation to see him as only being in the course of employment intermittently during his posting to the barge.

50.As to the place of work, I also think it is wrong to take the narrow view that the appellant’s workplace was the “Lamma No.8” and only on board that barge.  The particular circumstances of this case are unusual in that the “Lamma No.8” was, when at Pontianak, moored alongside any particular bulk carrier it was loading or unloading.  The working environment of those on board the “Lamma No.8” would, in my view, reasonably include the vessels alongside of which the “Lamma No.8” was moored, be it the bulk carrier or dumb barge between which cargoes were being transferred.  When the “Lamma No.8” was moored alongside other vessels, those other vessels became the environment in which the appellant was required to live and work.

51.The need to apply a flexible rather than rigid approach to the place of work is illustrated by the case of Yan Tong-kan Alice v Gammon (HK) Ltd [1981] DCLR 1.  In that case, a worker at a construction site used a public toilet opposite the construction site on which he worked, rather than the toilet provided on site, because it was closer.  It was held that his death when he was knocked down by a vehicle while crossing the road was an accident arising in the course of his employment.  The District Judge, noting that there was no evidence to show this was prohibited by the employer (a point I shall return to later), put the matter this way (at p. 4):

“The sphere of the deceased’s employment must be determined upon a general view of the nature of his employment and its duties.

There was nothing before me to show the deceased by going to a public convenience was arrogating to himself duties of a personal nature which he was not entitled to perform and in my view the risk he ran in crossing the road to a convenience nearer at hand than the one supplied by the defendant was a risk reasonably incidental to his employment.”

52.The Judge, it will be recalled, did not analyse the issue in terms of the requisite two-stage inquiry.  He approached the issue very differently, instead asking only if the appellant had proved the reason for his jumping onto the Vessel.  In my judgment, that was the wrong approach and undermines his conclusion on this issue.

53.Had he approached the issue applying the correct two-stage approach, I consider that he ought to have concluded that the injury was sustained from an accident in the course of the appellant’s employment.  He would then have had to proceed to consider the second stage, to which I now turn.

Stage 2: the “arising out of … the employment” requirement

54.As noted above, the deeming provision of s. 5(4)(a) applies once the first stage of the inquiry has been answered in favour of the applicant to deem the accident to have arisen out of the employment.  The question that then arises is whether there is evidence to the contrary to displace the deeming provision.

55.In Wong Yuet Yung v Wah Fung Hong Gas Engineering Company Limited, unrep., CACV 33/2007 (19 February 2008), it was held (at §9), following R v National Insurance (Industrial Injuries) Commissioner, ex parte Richardson [1958] 1 WLR 851 which considered a like-worded provision, that the words of the section are “in the absence of evidence to the contrary” and not “in the absence of proof to the contrary” or “unless the contrary is proved”.

56.In the present case, the Judge did not make any findings or state whether he accepted any of the respondent’s evidence as to how the accident arose.  He simply rejected the appellant’s evidence that he went on board the Vessel to check for obstructions.

57.In the circumstances, the question legitimately arises as to whether, on the basis of a conclusion that the Judge’s approach to the issue of whether the accident arose out of and in the course of the employment was flawed, a re-trial is inevitable and the only way to resolve the issue. That, it must be said, would be a most unpalatable and cost-ineffective course to take and I would be reluctant to conclude that it was necessary and, happily, I do not think it is.

58.It is plainly established that such acts as are necessary to the life, comfort and convenience of an employee, while at work, though strictly personal to himself and not acts in pursuance of his employment as such, are incidental to that employment.  Thus, a person must occasionally drink water or tea or coffee, go to the toilet, stretch his legs or make a personal telephone call while at work.  Absent a situation in which any of those activities might reasonably be prohibited, those acts are incidental to the employment and an accident happening to the employee whilst doing those acts would be one which arises out of the employment.

59.The respondent’s case was that the appellant’s story of checking for obstructions was a “pack of lies”.  Instead, its theory was that the appellant went on board the Vessel to make a telephone call on his mobile phone.  Mr Leung put it this way in his witness statement:

“14. At the time of the accident, I was working on board ‘Lamma No.68’. Having been informed of the accident, I boarded the cargo vessel and I then saw that the boom of ‘Lamma No.8’ was in a horizontal position …, and the bulk carrier that had been nearby had already been back to the shore as the bauxite had all been transferred to the cargo vessel. I was therefore certain that the [appellant] did not need to work at that time; (he) was waiting for the bulk carrier to return before resuming work. At that time, the cargo vessel was almost fully loaded. In fact, the cargo vessel left on the night of 4^th December 2009 after having been fully loaded. The (rooftop of) the rest cabin of ‘Lamma No.8’ was higher than the cargo vessel. When the [appellant] told me that he jumped down from a high place at ‘Lamma No.8’, he had slapped (sic) (pointed) his finger to the rooftop of the rest cabin of ‘Lamma No.8’, and was beating about the bush, saying that he jumped to the cargo vessel for a personal matter (but I cannot recall the actual wording he used at that time). Although the [appellant] did not mention directly about making a mobile phone call, the reason I suspected that the [appellant] went to the cargo vessel to make a mobile phone call was because crane operators would normally stay in the rest cabin to have a rest during break time instead of moving around, unless it was for making mobile phone calls because inside the rest cabin, reception of mobile phone signals was often bad; sometimes one had to go to the rooftop of the rest cabin for just a slight improvement in reception. The cargo vessel was relatively spacious and reception was relatively better (I knew this because I occasionally made mobile phone calls on board the cargo vessel; the [appellant] and other crane operators should have heard me mention that). Thus, it might be that while on the rooftop of the rest cabin, the [appellant] found that reception was still not very good, so (he) jumped onto the cargo vessel.”

60.Taking the respondent’s evidence at its highest, and assuming the Judge had accepted this evidence as to the reason that led the appellant to jump down onto the deck of the Vessel, was the accident one which arose out of the employment of the appellant?

61.There can be no doubt that, in the circumstances of this case, if the appellant had been injured while making a telephone call in the cabin of the “Lamma No.8”, the accident would have arisen out of the employment.  Making a personal telephone call there would plainly be an activity incidental to his employment.  There is nothing to suggest that the appellant was expected to live entirely in isolation of his family and friends or was prohibited from telephoning them.  As the appellant’s supervisor himself acknowledged, the mobile phone signal in the cabin was often bad and it was necessary to stand on the rooftop of the cabin or, better still, to go on board the deck of the adjacent Vessel to get a better signal.  Mr Leung did so himself to the knowledge of the other crane operators.  Although Mr Leung gave evidence that the crane operators were not required to go onto the Vessel and needed the authority of the master to do so, there was no evidence that they were prohibited from doing so.  There was evidence that a rope ladder was sometimes placed between the Vessel and the “Lamma No.8” and, although it was suggested this was only for the purposes of giving Mr Leung access to the Vessel, this could certainly be said to have amounted to at least tacit acceptance that the crane operators could do so.  Common sense dictates that the crane operators would go wherever convenient to get a good mobile phone signal.  It seems to me that, in these circumstances, going onto the deck of the Vessel to make a mobile phone call is an activity, whilst personal, that was sufficiently incidental to his employment (note, again, that the accident need not arise out of the work for which the employee is engaged but, rather, the employment) to be such as to have arisen out of the employment.

62.Thus, in my view, whether one applies the deeming provision and proceeds on the basis of an absence of evidence to the contrary, or on the basis that such evidence as there was pointed to a finding that the appellant boarded the Vessel to make a mobile phone call (which finding the Judge ought to have made, there being no other evidence as to why the appellant boarded the Vessel once he rejected the appellant’s story), the accident was one which arose out of the employment.  On the latter basis, I consider that there was a sufficient causal nexus between the accident and the employment to satisfy the second requirement of the two-stage test.

63.Having so held, it is unnecessary to consider Mr Sarony’s argument by analogy with those cases involving employees injured whilst travelling to and from places of work outside Hong Kong, such as Hsu Shu Chiao v Lung Cheong Toys Ltd [2002] 1 HKC 479 and Li Hoi Shuen v Man Ming Engineering Trading Co Ltd [2006] 1 HKC 349.  Those cases are special cases deriving from the application of provisions in the Ordinance (see s. 5(4)(d) and (g)) which deem an accident to an employee to arise out of and in the course of his employment where he is travelling, with the express or implied permission of his employer, by any means of transport to or from his place of work, and when he is travelling by any means of transport for the purposes of and in connection with his employment between Hong Kong and any place outside Hong Kong or between places outside Hong Kong.

64.It is also unnecessary to consider the appellant’s ground of appeal which challenges the Judge’s finding that he did not go on board the Vessel to check for obstructions.  That was a finding of primary fact and this court would need to be satisfied the Judge was plainly wrong in making that finding.  I do not think this was the case.  Notwithstanding that there might be some validity in Mr Sarony’s criticism of the Judge for regarding the appellant’s evidence with suspicion because of the timing of his giving details of the particular items he said he needed to check, I do not think this leads to the conclusion that the Judge was plainly wrong.  The mere fact that the Judge accepted that it was possible that the derrick crane of the “Lamma No.8” might be obstructed by the steel cable of the crane on the Vessel or by the doors of the cargo hold does not mean that he had to accept that this was in fact the situation that pertained at the time, which was the evidence of the appellant.

65.It is, I would accept, curious that, if the appellant was making a mobile phone call from the deck of the Vessel, he did not use it to contact Mr Leung or another colleague after he was injured since the inherent probabilities suggest that he would have done so.  But the fact that the appellant denied having a mobile phone with him when he was on the Vessel could simply be the result of his wishing to bolster his denial of that as the reason for his jumping onto the Vessel.

Whether liability established

66.Subject to the respondent’s reliance on s. 5(3) of the Ordinance, I would therefore hold that the Judge ought to have adopted the two-stage approach of inquiry and should have concluded that the injury was sustained in the course of the employment and also that it arose out of the employment.  It would therefore follow that the Judge should, instead of dismissing the appellant’s claim for employees’ compensation, have found in his favour on liability and awarded such compensation in the amount assessed by him, namely $349,266 plus interest.

67.In the respondent’s notice, the respondent sought to support the Judge’s dismissal of the claim for employees’ compensation on the basis that the injury was attributable to the serious and wilful misconduct of the appellant or an added peril.

68.Reliance was placed on s. 5(3) of the Ordinance, which materially provides:

“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; …”.

69.I can dispose of this point shortly.  The present case is plainly not within s. 5(3).  To constitute serious and wilful misconduct, the conduct must be misconduct and an obvious example of this would be criminal activity. Although not all misconduct need be criminal, it must still be in the nature of misbehaviour and it must be serious and wilful, amounting in effect to deliberate conduct inconsistent with the employment relationship.  In my view, the facts of the present case do not begin to suggest the appellant’s injury was the result of serious and wilful misconduct, or that his injury was deliberately aggravated, such as to engage s. 5(3).

Conclusion

70.For the above reasons, I would allow this appeal, set aside the judgment of the Judge on liability for employees’ compensation and in its place enter judgment for the appellant and award compensation under the Ordinance in the sum of $349,266 plus interest.

71.As to costs, I would set aside the Judge’s orders below (including his order dated 6 December 2012 varying the costs order in §92 of his Judgment) and, instead, I would make a costs order nisi that:-

(1) the respondent pay the appellant’s costs of the action below, to be taxed if not agreed with a certificate for counsel;

(2) the respondent pay the appellant’s costs of the appeal, to be taxed if not agreed; and

(3) the appellant’s own costs be taxed in accordance with the Legal Aid Regulations.

Hon Poon J:

72.I agree with the judgment of Fok JA.

Hon Stock VP:

73.Accordingly, we make the orders proposed in paragraphs 70 and 71 above.

Mr Neville Sarony SC, instructed by Or & Lau, assigned by Director of Legal Aid, for the Applicant (Appellant)

Mr Michael Ozorio SC & Ms Gekko Lan, instructed by Li, Wong, Lam & W. I. Cheung, for the Respondent (Respondent)

[1] Appearing with Ms Gekko Lan.

[2] Mr Wallace Cheung.