LO SAI-NUI v. MANNERS NAVIGATION CO LTD

bjbjU DCEC000010A/1975 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION Workmen's Compensation Case No. 10 of 1975 ----------------- Between Madam LO Sai-nui, widow of LAU Wan-cheung (deceased) for and on behalf of herself LAU Nai-fai, the dependant of the said deceased. Applicant Manners Navigation Company Limited Respondent ----------------- Coram: Addison, D.J. in Court. Date of Judgment: ----------------- RULING ----------------- 1. In this case a preliminary point has been taken that the deceased was not a "workman" within the definition of that expression in section 2 of the Workmen's Compensation Ordinance, Cap.282. 2. The proviso to that section enacts:- "Provided that the following persons are excepted from the definition of 'workmen' any person employed otherwise than by way of manual labour whose average earnings at the time of the accident calculated in accordance with the provisions of section 11 exceed $2,000 per month ...." 3. It is conceded that the deceased's remuneration exceeded that stipulated sum. 4. Thus the sole issue in this preliminary point is whether the deceased was employed "otherwise than by way of manual labour." 5. The deceased was, at the time of his disappearance at sea, engaged as a Third Engineer on board the M.V. "South Breeze", a ship of a little over 14,000 tons. That ship carried a crew of 49 persons of whom 12 were officers and included among those officers were five engineers. The deceased was a watch-keeping engineer which meant he was in charge of all the engine-room machinery for eight hours out of every twenty four hours. With him on his watch were two engine-room ratings. They would be responsible for carrying out his instructions to ensure the smooth running of the engines: they would lubricate parts of the machinery, clean the filters, attend to the pumps and perform a host of other necessary activities. 6. The evidence shows that the Third Engineer's duties were almost entirely supervisory. He would keep an eye on the machinery and guages, look for possible faults and see that what was needed to be done was carried out by others to his satisfaction. He himself was not responsible for carrying out repairs. Except in times of emergency these would be done under his instruction by fitters of whom there were three on board. 7. Of course it cannot be imagined that neither the Third Engineer nor the other engineers on board did not take a spanner in their hands from time to time but the evidence of both Captain Wagg and Captain Taylor satisfies me the post of the deceased was predominantly a supervisory one. 8. I find on the evidence that the deceased was responsible for checking the machinery to see it worked efficiently but that he mainly delegated actual physical maintenance to his ratings. Naturally he would use his knowledge and skill in tackling any problem which arose and he would have used his hands in helping or guiding the ratings in correcting it. It has not been suggested he never used his hands in solving engine troubles. 9. Can it be said then, on this finding, that he was a person "employed otherwise than by way of manual labour"? Was he, in other words, predominantly a manual labourer? 10. Contending that the deceased is outside the operation of Cap. 282, Miss Chan first referred me to the 2nd Edition of Words & Phrases Volume 3 at page 208. 11. There appear on that page the following various extracts:- "It seems to me that 'manual labour' can only mean 'labour performed by hand'" Morgan v. London General Omnibus Co. (1884) 13 G.B.D. 832 C.A. per Bowen L.J. at p.834. "The appellant was employed as a grocer's assistant in a shop, and his business was to take orders from the customers and to carry them out. In doing this he may have to show goods, and if the customers take away the goods he has to make up the parcels. In doing this he has to use his hands, and the question is whether that makes him a manual labourer. There can be no manual labour without the user of hands; but it does not follow that every user of hands is manual labour, so as to make the person who does it a manual labourer." Bound v. Lawrence 1892 1 Q.B. 226 C.A. per Lord Esher, M.R. at p.228. "It is difficult to imagine any work done by man so surely intellectual as to require no kind of work with the hands; and the converse is equally true, that there can hardly be work with the hands that requires no intellectual effort. If then, the words 'manual labour' are to have the full significance which could be put on them, they would be extended to every kind of employment .... The determination of what is substantial and what accessory may be a question of difficulty; but, in my view of this case, the appellant was not engaged in manual labour. In his occupation the knowledge and skill required in selling the goods to customers is more important than the manual work that he does, and the latter is an incident of his employment." Ibid., per Fry, L.J. at p.229. 12. Miss Chan also referred me to Willis on Workmen's Compensation, 37th Edition at page 181. 13. There the learned author says:- "There is a difference between 'manual labour' and 'manual work'. Everybody does manual work but everybody is not a 'manual labourer'. The distinction has been illustrated in several cases, and it has been stated that the real substantial business of the plaintiff must be looked at." 14. She referred me to Jaques v. Owners of Steam Tug Alexandra [1921] 2 A.C. 339, a decision of the House of Lords. 15. The headnote is in these terms:- "In considering whether an employee is 'employed otherwise than by way of manual labour' within section 13 of the Workmen's Compensation Act, 1906, the test is the substantial nature of the employment regarded as a whole. If it be manual labour, the fact that the employment involves duties which are not manual labour does not exclude the employee from the benefit of the Act; if it be not manual labour, the fact that the employment necessitates some amount of manual labour does not bring him within the Act. The master of a steam tug was drowned by accident arising out of and in the course of his employment. His remuneration exceeded 250 a year. The county court judge found (1) that the deceased's employment included various kinds of manual labour, such as scrubbing the decks, painting and scraping the ship, and helping to coal, (2) that, prima facie and apart from special contract, the normal work of a master was not manual labour; and he came to the conclusion that the special conditions of the deceased's employment did not so affect the main and substantial object of his employment as the master of a tug as to turn it into an employment by way of manual labour, and that the deceased was therefore not a workman to whom the Act applied:- Held that the county court judge had applied the correct test and that there was evidence to support his findings of fact. Decision of the Court of Appeal affirmed." 16. I should add that section 29 of the Ordinance which extends the Ordinance to masters and seamen who are members of the crew of a Hong Kong ship has no application in this case not only because the deceased was not a master but also because the ship was not a local ship. 17. Mr. Wong who appeared for the applicant asked the court to find that the deceased was a manual labourer and within the definition of a "workman" in the Ordinance. He argued that the recent decision of the House of Lords in the case of J. & F. Stone Lighting & Radio Ltd. v. Haygarth [1968] A.C. 157 could be applied by way of analogy. 18. The headnote of that case reads:- "The appellants were the occupiers of a shop and workroom. In the shop they carried on business for the sale and hire of television and radio sets and other electrical equipment. In the workroom they employed one radio and television engineer whose work consisted of diagnosing and repairing faults in the sets and equipment sold and on hire and in oustomers' sets. At the hearing of two informations charging the appellants with offences against section 155 (1) of the Factories Act, 1961, the appellants contended that the premises were not a factory within section 175 (1) of the Act, the engineer not being employed in manual labour since his work required a high degree of ability to which the actual manual labour involved was incidental; and that, even if he were employed in manual labour, the premises were not a factory, the substantial purpose of the premises being a shop to which the workroom was incidental. The justices dismissed the informations on the grounds that the use of the engineer's hands was a subsidiary part of his work because of the special knowledge required as a radio and television engineer to repair the sets and equipment and that therefore he was not employed in manual labour within section 175 of the Act. On appeal by the respondent, the Divisional Court allowed the appeal. The appellants appealed to the House of Lords. Held, dismissing the appeal (Lord Reid and Lord Pearce dissenting), that it was necessary to consider the nature of the substantial employment, which was, here, that the engineer by the use of his hands should repair or adjust or replace the sets and equipment. He was employed to do the work with his hands, albeit it was work of a nature that required the application of knowledge and therefore some intellectual effort in its performance but it did not involve the exercise of a creative or artistic faculty nor could it be said that the work involved mental qualities. Accordingly, though the work involved one variety of skill it was, in the circumstances, essentially manual labour within section 175 (1) of the Act." 19. That case was concerned with section 175 (1) of the Factories Act, 1961. 20. That section provides:- "Subject to the provisions of this section, the expression 'factory' means any premises in which, or within the close or curtilage or precincts of which, persons are employed in manual labour in any process for or incidental to any of the following purposes, namely ..... (b) the ... repairing ... of any article ... being premises in which, or within the close or curtilage or precincts of which, the work is carried on by way of trade or for purposes of gain and to or over which the employer of the persons employed therein has the right of access or control." 21. It was argued in that case that to impose a limited interpretation to the words, "employed in manual labour" would be to thwart the intention of the legislature to provide orderly conduct in industry with maximum protection for the health and safety of factory workers. 22. Their lordships considered the case of Bound v. Lawrence and were referred to Jaques v. Owners of Steam Tug Alexandra. Speaking of the latter case Lord Morris of Borth-y-Gest said, at page 177:- "The case proceeded on the basis that the main substantial duties of the master of the tug in that case were otherwise than 'by way of manual labour'. It had been expressly provided in his contract of employment that he was to perform certain duties which undoubtedly were 'by way of manual labour.' Those duties were, however, subsidiary. It was held that regard must be had to the substantial nature of the employment as a whole. In the Act of 1906 it was provided that the Act was applicable to masters, seamen and apprentices to the sea service, provided that they were workmen within the meaning of the Act. The term 'workmen' did not include 'any person employed otherwise than by way of manual labour' whose remuneration exceeded 250 a year. Lord Buckmaster pointed out that each case must be determined upon the special circumstances in which it arises. It was a question of fact whether the main duties of the master were by way of manual labour. It had been held by the county court judge that they were not. Lord Sumner in his speech said the words 'by way of' made it clear that the general character of the employment was to be looked at but that even on the words 'engaged in' (which words occurred in section 10 of the Employers and Workmen Act, 1875, in the phrase 'otherwise engaged in manual labour') the courts 'have almost uniformly looked to the real and substantial work to be done, to the main duty of the employee and the general nature of his employment, to that which is primary and substantial in his operations and not to that which is merely incidental and accessory.' Lord Sumner said that service 'otherwise than by way of manual labour' fitted the case of a person whose service principally involved the exercise of mental qualities sometimes with and sometimes without the accompaniment of manual labour. My Lords, the test there laid down has been the basis of many decisions both prior to and subsequent to that case. If someone is employed partly in manual labour and partly in non-manual labour it will often become necessary to consider whether one part of the employment is merely subsidiary or incidental to another part which is the main or substantial part. There will be questions of degree and of fact. They will often be questions which are border-line and difficult to resolve. There are few employments which do not in some way involve some use of the hands in the performance of duties involved. Those who in various capacities are employed to evolve policies, to reach decisions, to direct affairs or to guide and supervise others may all at certain moments need the use of their hands. Yet in so many cases the use of the hands would be of so incidental and subsidiary a nature that on a commonsense approach a decision could readily be reached that there was no employment 'in manual labour'." 23. Lord Pearson, in his judgment at page 191, said:- "...... in general the principal is clear. Examples of activities which are primarily non-manual though involving some manual work, are (i) the work of a painter, sculptor or lithographic artist; (ii) managerial or supervisory work; (iii) selling in a shop; (iv) clerical work; (v) driving a vehicle or acting as conductor of a public service vehicle ...... In my opinion, however, the present case wholly fails to come within the principle. There is no primary or substantial main activity to which Mr. Sayer's work of repairing television and radio sets and electrical appliances by the use of his hands could be ancillary or accessory. He is a highly skilled craftsman using his technical knowledge in his manual work of repairing articles." 24. Applying the test to this case I am of the opinion that the deceased's primary task was not of a manual nature. He held a Liberian Second Assistant Engineer's licence; he was a watch-keeping engineer assisted by engine room mechanics and fitters. Such manual work that he did was ancillary or accessory to his engagement which was for his knowledge and skill. 25. It is for this reason that I rule that this application for workmen's compensation is outside the operation of the Ordinance. 26. Accordingly I dismiss this application with costs to the respondent. I shall hear both sides before deciding what scale those costs should be assessed at. (F. Addison) District Judge Representation: S"T$ S"T$ S"T$ S"T$ S"T$ " % & ' 2 t% DCEC000010A/1975 Judiciary Normal.dot Judiciary Microsoft Word 9.0 Unisys DCEC000010A/1975 Title Microsoft Word Document MSWordDoc Word.Document.8