FONG FUNG YING v. ATTORNEY GENERAL

bjbj DCEC000017/1984 VDC ECC No.17 of 1984 Scriven D.J. 14.6.1984 Master & Servant Employees Compensation Ordinance (Cap.282) Workman on unauthorised "tea break" but returning to duty stabbed whilst en route and in lavatory. Stabbing did not arise out of and in course of employment. Appeal dismissed by Court of Appeal (1984 No.111) 6 November 1984. per Huggins J., Wong Gum Fook v. McLean (1973 HKDCLR 75) not to be followed. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIN CIVIL JURISDICTION EMPLOEE' COMPENSATION CASE NO. 17 OF 1984 ______________ IN THE MATTER OF AN APPLICATION BETWEEN: Fong Fung Ying for herself and on behalf of other dependants of Lee Shui, deceased Applicant Attorney General Respondent _____________ Coram: H.H. Judge Scriven in Court. J U D G M E N T This is a claim for compensation consequent upon the death on 5th March, 1982 of LEE Shui [the deceased] a 44 years old Artisan employed by the Housing Department of the Hong Kong Government. He left a wife and two teen-age children, but by agreement I am only asked now to decide whether his death and the circumstances thereof entitle the dependants to compensation pursuant to S.5(i) of the Employees Compensation Ordinance Cap. 282 [The Ordinance]: should they be so entitled the extent thereof will be tried as a separate issue. I hearding oral testimony. Mr. Eccletion appearing for the Director of Legal Aid represented the dependants of the deceased, and Mr. Hui appeared for the Attorney General for the Hong Kong Government both had served notices under the provisions of 0.38 of the Rules of the Supreme Court requiring the other party to admit in evidence certain written statements, and neither party had served a counter notice requiring the makers of the various statements to give evidence. In the event therefore both were free to adopt and tender as their evidence any of each others statements. This was a laudable attempt to save the Courts time especially since I had to compress the 2 day hearing for which the case was fired into a single day because of the "fixture list" system run by the Distriot Court. I have to say, with the advantage of hindsight, that the questions I have to answer by considering solely paper evidence might have been more readily and easily resolved with oral testimony, but the evidence is entirely made up of statements and I must evaluate those in the light of the authorities cited to me by both parties. Very few facts emerge as truly agreed, but the Crown did specifically agree that the deceased sustained a personal injury and that this personal injury which resulted in the death was an "accident" within the meaning of Cap. 282. The effect of such agreement is that the Applicant has to prove that the agreed accident arose both "in the course of" and "out of" his employment. Mr. Eccletion, from the outset, indicated that he would seek to rely on the presumption contained in S.5(6) of the Ordinance that:- "..... an accident arising in the course of an employees employment shall be deemed in the absence of evidence to the contrary also to have arisen out of that employment." The following authorities and academia commentaries were cited to me and I shall refer to them by number and abbreviated title hereafter. (1) TSANG Yuk-cheung widow of LAM Sui-hing and others (illegible) - and - China Fleet Club Royal Navy and another. W.C.C. No. 92 of 1972 (TSANG Yuk's case). (2) WONG Gum-fook and others - another Mrs. J.L.G. Mclean 1973 District Court Law Reports p.75 ("Mrs. McLean's case") (3) Commentary in the Hong Kong Law Journal on 1 and 2 in Volume 3 of 1973. ("1973 H.K.L.J.") (4) LAI Fong and another and Shum Fung Ironworks VCJ 100 of 1976 (unreported) and 1977 Hong Kong Law Journal, Volume 7 No.3. ("1977 H.K.L.J.") (5) MA Yuet-yin (widow of CHAN Hing deceased) - and - Patt Manfield and Co. Ltd. 1980 District Court Law Reports p.92. (MA Yuet-yin's case) (6) YAN Tong-kan Alice - v. - Cammon (HK) Ltd. 1981. District Court Law Reports p.1. (YAM Tong-kan's case) (7) LO Yung-kwong (and others) - and May Sum Plastic Sign board Co. Employees Compensation case 213 of 1981 (LO Yung's case) (8) LAM Kin and others - and - Yau On Construction Co. 1981 H.K.L.R. p. 646 (LAM Min's case) When opening, Mr. Eccletion took me through the documents and the statements therein which he sought to rely on, and when replying, Mr. Hui referred me to those which he drew assistance from, and I think it would be fair to say that I was invited by Mr. Hui to draw certain inferences to rebut the presumption in S.5(6) of the Ordinance, and then Mr. Eccleton reminded me that no inferences can be drawn where there is no evidence and I shall revert to that rather difficult distinction later, but I think that first I should just record now that the deceased was in general terms, on his way to work at Wong Tzi Sin on the day of the accident at 0820. He called in at Lok Fu Estate to see one WONG King a foreman from whom he was to collect certain oxygen acetylene welding equipment to take with him to work elsewhere. This was at Block 17, Lok Fu Estate and on that day the deceased had gone straight from his home reporting first to WONG King, then to tea at Shum Fat Restaurent at 0820, where WONG King joined him five minutes later. At 0850 they both left, the deceased followed WONG King out and paid the bill. WONG King went back to his office, and within minutes the deceased arrived speechless but injured; he could not tell anyone what happered, but WONG King followed bloodstains back to the entrance Block 17, and then the police investigations indicated that the injury to the decased had been sustained in the Public Toilets at the groundfloor to Block 17, where the office of WONG King was. The documents from which the parties invite me to ascert in the facts to base my judgment upon are as follows:- (1) Statutory Form No.2 (being the notice by Employer of an accident to an employee) and dated 1.4.1982 completed by the Director of Housing. (2) Hong Kong Police (Workmens Compensation Unit) Particulars of Accident dated 5.3.1982. (3) Memorandum from the Director of Housing to the Attorney General dated 18.11.1983. (4) Memorandum from "HM LKTS" to SCO/PC in the Housing Department dated 3.5.1983 answering questions in, and (6) with Memorandum from Attorney General to Director of Housing dated 10.4.1984 attached. (5) Statement by WONG King made to Royal Hong Kong Police on 5.3.1982. I must of course, scrutinize those documents to see what facts can be proved thereby and only then to consider what inferences can be drawn from those proven facts that is to say I must not accept any invitation to draw inferences unless they are based on primary facts within the knowledge of WONG King or expressly or impliedly admitted facts emerging from the documents I have set out, and I will therefore set out those facts material to this claim which I regard as so established, and I hold that when I have to consider the deeming provisions of S.5(6) of the Ordinance that any "evidence to the contrary" must be the primary evidence obtained from the documents and not any inferences to be drawn therefrom. (Following TSANG Yuk's case. No.1) The facts which I hold to be so established are:- (1) The Accident occurred during working hours, that is to say between 0800 and 1700 hours. (2) the "Accident" consisted of multiple stab wounds. (3) These are not self-inflicted. (4) The precise place where the accident occurred is not known beyond the fact that it occurred in a ground floor male toilet at Block 17 Lok Fu Estate. (5) The deceased had entered the toilet after taking refreshment at Shum Fat Restaurant with WONG King a person senior to and in authority over the deceased. (6) The visit to the Shum Fat Restaurent was not a permitted break in the deceased conditions of employment and was not authorized. (7) That the public toilet was not part of the Shum Fat Restaurant and was in close proximity to or in a direct line between the said Shum Fat Restaurant and the deceased proper place of employment, namely, the sub-office at Block 17 Lok Fu Estate. (8) The unauthorized refreshment brank lasted from approximately 30 minutes from 0820 to 0850 hours. I do not feel able to draw any inferences of any significance from the facts; not even that the deceased had visited the public toilet for the purpose of relieving himself; he may have gone to wash his hands or even to keep some assignment or he may have been diverted there suddenly, but WONG King says to fore in his statement to throw any light on the deceased visit then that he left the restaurant first because the deceased had to pay the kill. Mr. Eccleton for the deceased has urged me to hold that then the unlawful visit to the restaurant was over the deceased would have been free to use the public toilet in any event, and therefore to regard the visit as not being part of the unlawful visit to the restaurant. Mr. Hui for the employer Government urges me to hold that without the visit to the restaurant there would have been no visit to the toilet. I find both arguments attractive, but untenable without making inferential findings as to the deceased reason for being in the toilet. Here I able to find on the facts that he had just left the foreman's office to visit the toilet, I should have been able to say without any hesitation that the course of his employment was not interrupted, but I have no alternative except to hold that the incident occurred before the deceased had resumed duty after a 30-minute unauthorized break. That break started when he left the foreman's office, and it cannot have ended when he left the restaurant; he cannot have purged his disobedience until he returned to where he was last on his employers business, and with no complaint made. I think to adopt the analogy which Mr. Eccleton urged upon me, namely that he would not have been reprimanded had he been apprehended coming from the toilet is really to adopt a test which however practical it might be, could only go to resolve questions of dismissal. The whole tenor of the Employees Compensation Ordinance and its English ancestor lies not in rights and liabilities under Contracts of Service but in a remote and academic setting of whether any particular incident arose out of and in the course of employment. It is true that assistance may be gained from considering the obligations of the contracts, but, since:- neither idsobedience carelessness recklessness or negligence necessarily disentitle claimants to compansation if the workman when he has injured was doing the work for which he has employed,(9) I have to consider the total absence of 30 minutes which was initially and ostensibly for the purpose of a visit to a restaurant, (and the intended purpose of which was not complete until the deceased returned to the foreman's office) and if it can be said nevertheless to have been in the course of the deceased's employment. It is true that WONG King says in his statement that he and the deceased talked about work so that even though they drank wine at that rather early hour, I would have been in a position to hold that the visit was in the course of employment, but for the act as I find it on the admitted documents that the deceased was not permitted to take tea breaks such as he did. There is no suggestion in WONG King's statement that he required to talk to the deceased, let alone so indicated, about the work to be done and thus extended the course of employment into an otherwise unlawful break. The whole sense of the statement is to the contrary, that is to say of a congenial half hour at the beginning of the working day, but in working hours, and it is perhaps significant that the deceased went ahead alone to the restaurant and left last paying the bill. I cannot draw an inference that the visit was itself taking place in the course of the employment, and I must hold that the accident which befell this deceased did not occur while he has doing anything in discharge of a duty which he owed to his employers.(10) And, as was laid down in the later Amalgamated Engineering case (where an employee overstayed a lawful tea break and was injured) that the facts comply with the test whether he was doing something incidental to his contract of service although he might be under no duty to do it: they do not, and as Davies L.J. said in that case.(11) "It seems to me however that one thing is inescapable: whatever the principle to consent express or to be implied from all the circumstances, by the employer to the particular activity on which the workman was at the time of his accident engaged is essential." In all these circumstances and on the totality of the limited evidence but before me I cannot find sufficient facts or draw any inferences from the facts as I findthem to enable me to say even on the most liberal construction of the Ordinance that this unfortuate deceased's accident arsoe out of andin the course of his employment. The claim must fail and is dismissed. (N.C. Scriven) District Judge Representation: (9) Millin V. Fowler 1926 N2LR 372. (10) MOULE v. Marmite Food Ertraot Co. 1927 20 BNCC (11) Ind. Ins Commr. Er Parte Amalgamated Enginering Union 1960 1 A.E.R. 97 PAGE - PAGE - &`#$ & 6" 0 0 VDC ECC No Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR ytgs VDC ECC No Title Microsoft Word Document MSWordDoc Word.Document.8 VDC ECC No Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR