Read the full judgment text of CACV 149/1992 on BabelCite. This Court of Appeal judgment was delivered on 5 February 1993 before Fuad, V.-P., Nazareth, J.A. and Mortimer, J..
Employees' Compensation Ordinance, Cap. 282 – s.5(1) and s.5(6) – 'arising out of and in the course of employment' – arson attack on mahjong club killing four employees playing mahjong or cards after their normal duties – Form 2 admissions signed by major shareholder – whether playing mahjong with a VIP customer at the manager's suggestion brought the deceased within the course of employment – whether the arson attack on the club premises meant the deaths arose out of the employment. Four appeals by United Ford Development Ltd. t/a King Ford Mahjong Club against Judge Downey's decision that it was liable under section 12(1) of the Employees' Compensation Ordinance, Cap. 282 to pay compensation of $424,000 under section 6(1) to the dependants of four employees (Mr. Lam Wai Lap, cashier; Mr. Tai Kwok Ching, supervisor; Mr. Yim Sze Tung, roast meat section; Mr. Leung Ping Wah, roast meat section worker) who died in a fire caused by three armed intruders on 11 September 1990. The first issue was whether the deaths occurred 'in the course of' employment within s.5(1). Applying Roskill LJ's guiding principle in R v National Insurance Commissioner, ex parte Michael [1977] 1 WLR 109, the court held Mr. Tai was within the course of employment because, as supervisor ordered to remain until 4 a.m., playing cards with a cook and regular customers with the door open was reasonably incidental to his supervisory duties (unchallenged). For Lam, Yim and Leung, although they had finished their work, changed out of uniform and were playing mahjong for pleasure, the court held that the manager Mr. Chiu's 'suggestion' that they play with VIP customer Mr. Liu Kin Wah (the major shareholder's uncle), combined with the club being short-staffed and the Form 2 statutory reports signed by major shareholder Mr. Liu Tai Cheong on behalf of the Employer answering 'Yes' to whether the accident occurred 'in the course of work', constituted cogent admissions bringing the activity within the scope of employment. The court rejected the argument that the Form 2 should be disregarded because the signatory was not personally on the premises. The second issue was whether the deaths 'arose out of' the employment. The court accepted that the arson was directed at the club's premises and business rather than at any individual, so there was no 'evidence to the contrary' to displace the deeming effect of s.5(6). Independently, applying the Privy Council's analysis in Brooker v Thomas Borthwick [1933] AC 669 (which followed Thom or Simpson v Sinclair [1917] AC 127) – that an accident arises out of the employment if the workman is injured at the place his employment requires him to be, and the spot turns out to be dangerous – the court held the club's premises became a 'dangerous spot' when the arsonists set fire to the 1st floor. The court treated the conflicting approach in Holden v Premier Waterproof [1931] 144 LT 519 (requiring the spot to be inherently dangerous) as effectively overruled by Brooker, which it was bound to follow as a Privy Council decision. The court also took judicial notice that entertainment venues in Hong Kong are frequent targets of criminal activity, supporting a finding of special employment-related risk. The court rejected the Employer's further challenges to the judge's evaluation of the witnesses (Mr. Chiu and Mr. Ng) and the inferences drawn, holding that the judge had not misdirected himself on fact or law and his conclusions were entitled to great weight. Held: all four appeals dismissed, with the liability of the Employer under s.12(1) affirmed and the quantum of compensation to be determined by the court below.
Legal issues: Whether the deaths of the four employees occurred 'in the course of' their employment · Whether the deaths 'arose out of' the employment · Admissibility and weight of the Form 2 admissions
Outcome: Appeals dismissed; the Employer's liability to pay compensation to the dependants of all four deceased employees under the Employees' Compensation Ordinance, Cap. 282 affirmed.