WONG GUN-FOOK AND OTHERS v. MRS. J L G MCLEAN

bjbj DCEC000029/1973 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION WORKMEN'S COMPENSATION NO. 29 OF 1973 ----------------- BETWEEN Wong Gun-fook, father of Wong Yuk-lin (deceased) for and on behalf of himself, Lai Ying, Wong Yuk-chun, Wong Yuk-ming, Wong Yuk-sum, Wong Yuk-chuen, Wong Yuk-yin, Wong Yuk-heung, the dependants of the said deceased Applicant Mrs. J. L. G. Mclean Respondent ----------------- Coram: N.B. Hooper, D.J. Date of Judgment: 20th July, 1973. ----------------- JUDGMENT ----------------- In the case before me the body of the deceased who was an AMAH was found in the premises in which she worked. She had been murdered by strangulation and knife wounds. The reason for the murder is not entirely clear. Mr. Davies for the Respondent has submitted that there are 4 elements which must exist before a claim arises under the Ordinance a personal injury by accident arising out of the employment in the course of the employment He concedes that elements (1) and (4) exist in the present case but submits that elements (2) and (3) are not present. So far as element (2) is concerned he submits that the word 'accident' should be given. its ordinary and natural meaning and it should not be construed to include a murder. There appear to be no reported judgments in the H.K. and D.C. Law Reports where the Courts have had to consider whether an intentional assault on a workman could be an 'accident' within the meaning of the Workmen's Compensation Ordinance. I have, however, had my attention drawn by Miss Smith to a judgment of Judge Bewley (V.D.C.W.C. Case 92/72) in which he held that a cook who was chopped to death by a fellow cook in the kitchen of the premises in which they both worked met his death by 'accident' within the meaning of the Ordinance. In that case reference was made to Lord MacNaghten's much quoted dictum to the effect that the word 'accident' in the English Workmen's Compensation Act included a 'mishap or untoward event which is not expected or designed'. It is clear that Lord MacNaghten took the view that the word 'accident' was used in the popular and ordinary sense of the word denoting an unlooked for mishap or untoward event which is not expected or designed. Although it might seem strange that this word should include an occurrence intentionally caused by others, it is clear that this was the construction which the Courts in England placed on the corresponding section of the English Workmen's Compensation Acts and on the corresponding section of the National Insurance (Industrial Injuries) Act 1946. It is clear also that the position remains unchanged under the National Insurance (Industrial Injuries) Act of 1965. (see Halsbury's Statutes of England 3rd edition, Vol. 23 at p.478 which states the law as at 1st August, 1970) There is nothing in the local Workmen's Compensation Ordinance which suggests a different intention. As our Ordinance follows the wording of the English Acts the English authorities are obviously of considerable assistance and the decision of the Court of Appeal in Anderson v. Balfour (1910) 2 I.R. 497 (Gamekeeper attacked by poachers) Nisbet v. Rayne & Burn (1910) 2 K.B. 689 (murder of bank cashier) and of the House of Lords in Trim Joint District School v. Kelly (1914) A.C. 667 (murder of schoolmaster by pupils) clearly show that the wounding of a gamekeeper and the murder of a cashier and schoolmaster were regarded as accidents under the English Acts. My attention has been drawn by Mr. Davies to the comments of Viscount Dunedin in the case of Simpson v. London, Midland and Scottish Rail Co. (1931) A.C. 351, a House of Lord case, in which he stated that, violence of a certain sort and suicide exclude accident. Viscount Dunedin did however recognize that not every sort of violence excluded accident. He said " Violence of a certain sort - I cannot say of every sort, after the case of Trim Joint District School v. Kelly, in which I dissented - and suicide exclude accident". I have also been referred to the judgment of Williams D.J. in Fung Po-chun v. Mollers' Ltd. 1966 D.C.L.R. at pages 100 & 101. However the learned judge did not have to consider the matter of violence because there was no evidence of violence in the case before him. He was merely echoing the words of Viscount Dunedin. There can be no doubt the word 'accident' in the workmen's Compensation Ordinance includes occurrences intentionally caused by others, and that its meaning is sufficiently wide to include a murder. Not every murder of a workman will however give rise to liability under the Ordinance. Under the English Acts liability would only arise if the murder was in some way connected with the workman's employment. The Courts in England considered the word 'accident' in relation to the composite expression "accident arising out of and in the course of the employment". It seems clear that when Viscount Dunedin expressed the view that violence of a certain sort excluded accident, he was referring to violence unconnected with the employment. At the time when the abovementioned cases were decided there was no section in the English Acts equivalent to our S. 5(6) which is set out below: " S. 5(6) For the purposes of this Ordinance an accident arising is the course of a workman's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment". This provision necessitates the existence of an accident arising in the course of a workman's employment to give rise to the deeming. It is therefore necessary to look at the words "accident" "arising in the course of employment" and "also to have arisen out of that employment" separately. This is obviously rather difficult to do if we consider the decisions under the old English Workmen's Compensation Acts because "Accidents" within the meaning of these Acts were considered having regard to the composite expression. In 1946 the National Insurance (Industrial Injuries) Act was passed with a similar provision to our S. 5(6) (i.e. S.7(4)). The same provision was enacted in the more recent National Insurance (Industrial Injuries) Act of 1965 (i.e. S. 6) and there can be no doubt that our sub-section which was inserted in our Ordinance in 1969 was taken from these English Acts. There are a number of reported decisions by the Commissioner under the National Insurance (Industrial Injuries) Acts on the meaning of this provision. These reports are of considerable value because the Commissioner and the Deputy Commissioner who assist him are barristers or advocates of not less than 10 years standing, and therefore lawyers of no mean experience. These decisions are cited in Halsbury's Laws of England, Vol. 27 and are therefore considered authoritative. There is no appeal from the decisions of the Commissioner with the result that the courts in England rarely have a chance to comment on the meaning of this legislation. The Court of Appeal however did consider the decision of the Commissioner in one matter where there was an application for an order of certiorari on the ground that the Commissioner had misdirected himself on the effect of this provision, see R. V. National Insurance (Industrial Injuries) Commissioner, Ex parte Richardson 1958 2 A.E.R. 689. This is the case referred to by Judge Bewley in his judgment. The facts were that a bus conductor in uniform on the platform of his bus was injured in an assault by one of a gang of youths. It was not shown that he was singled out because of any circumstances connected with his employment. The youths had previously assaulted other persons. The interesting thing about this case is that the Divisional Court of the Queens Bench Division presided over by Lord Goddard, the then Lord Chief Justice of England, Mr. Justice Slade, and Mr. Justice Devlin were not in any way inhibited in referring to the assault as an "accident" even though they agreed with the Commissioner that it did not arise out of his employment. There can thus be no doubt that the word 'accident' may include an assault on a workman. So far as Mr. Davies' first point is concerned, therefore, I hold that the word 'accident' in the ordinance may include a murder. Whether it is an accident giving rise to liability under the Ordinance depends upon all the circumstances and facts of the individual case. The position is correctly set out in my view in the following passage from Vol. 27 Halsbury's Laws of England 3rd edition p. 862. " Although it is useful to consider the circumstances of an accident separately as regards the questions, first whether it occurred in the course of the employment and, secondly whether it arose out of it, ultimately the decision must depend on the interpretation and application of the facts of the particular case of the composite expression "accident arising out of and in the course of the employment". I turn now to the second limb of Mr. Davies' submission that even if the murder of the AMAH is to be regarded as an accident it did not arise out of her employment. By virtue of S. 5(6) as we have seen an accident in the course of a workman's employment is deemed to arise out of her employment in the absence of evidence to the contrary. This subsection and its counterparts under the English legislation may be referred to as the presumption section. Richardson's case referred to above makes it clear that if there is any evidence to the contrary, then the presumption disappears and that evidence must be considered with all the other evidence available. The section does not require proof to the contrary to rebut the presumption. It merely requires the existence of evidence to the contrary which in the words of Mr. Justice Devlin was "evidence fit to be left to the jury". Lord Goddard described the position as follows:- " It comes down in the end, as Mr. Chapman has conceded, to the true construction of subsection (4) of Section 7 of the Act. Subsection (4) provides : "For the purpose of this Act, an accident arising in the course of an insured person's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment". Those are the words of the section, and therefore let it be conceded that if a person proves merely and there is no other evidence except that he suffered an accident in the course of his employment, then it is to be deemed, it is taken to be proved, that it arose out of the employment. But if there is evidence to the contrary by whoever it is given, that is to say, the facts which are before the Commissioner can amount to evidence to the contrary, then the presumption or the deeming disappears, and if once that deeming disappears it is then for the Applicant to prove that the accident did arise not only in the course of but also out of his employment. The words of the section are not "in the absence of proof to the contrary" or "unless the contrary is proved"; the words of the section are "in the absence of evidence to the contrary," and that has been held before now by the Industrial Injuries Commissioners and, in my opinion, quite correctly, to mean no more than this, that if there is evidence before the Commissioner that the accident does not arise out of or in the course of the employment, then there is no presumption at all and it is left to the parties to prove the case in the ordinary way". The following words of the Commissioner in the reported Commissioner's Decisions C.I. No. 3 of 1949 received judicial approval from Mr. Justice Devlin in the Richardson's case and it is clear also that Lord Goddard was referring to this decision. " That presumption by the terms of that subsection arises only "in the absence of evidence to the contrary" i.e. when there is nothing in the known circumstances from which it could reasonably be inferred that the accident did not arise out of the employment. Where, as in this case, there are some facts which in themselves would justify this inference, such facts constitute "evidence to the contrary" and the presumption therefore disappears. The Local Tribunal (or other Statutory Authority concerned) must then take those and all the other known factors into consideration and decide whether the correct inference from the evidence taken as a whole is that the accident arose out of the employment. Unless the authority is satisfied that this is the correct inference, the claim must fail". I must ask myself whether in the light of the above statements of the law there is any evidence to the contrary in the present case. The evidence before me is that the deceased was murdered by a stranger to the respondent by strangulation and knife wounds and that the person concerned was subsequently convicted of murder in the Supreme Court. There is evidence of certain drawers in the bedroom and kitchen and of the refrigerator door being found open by the respondent when she returned to the flat and discovered the body in the premises. However nothing had been taken from the flat. Can it be said that there is evidence fit to be left to a jury from which it could reasonably be inferred that the accident did not arise out of the employment? There is a note in Vol. 23 Halsbury's Statutes of England 3rd edition at p. 492 under the heading "Evidence to the contrary" indicating that this means something more than speculative inference but something less than "proof". Reference is made to Commissioner's Decision R. (1) 1/64 where these words were used by the Commissioner. This note is a commentary upon Section 6 of the National Insurance (Industrial Injuries) Act 1965, which is substantially the same as our section 5(6) of the Workmen's Compensation Ordinance. Reference is also made to the 'general note' on the same page. In that note the following words appear " To rebut the presumption under this section the evidence to the contrary may be such as to show that the accident arose ......... by an assault unconnected with his employment ........" I have removed those parts of the passage which are irrelevant for the present case. This passage does not make it clear whether evidence that the deceased was assaulted and murdered is sufficient in itself to displace the presumption. However the passage continues - " On the other hand, the injury will be held to arise out of the employment if it can be shown that the assault arose out of some incident occurring in the course of the employment such as a dispute over work, or that the employment, by its circumstances, involved a special risk of assault not incurred by persons not so employed or not so employed under the same circumstances". Reference is made there to Vol. 27 Halsbury's Laws of England (3rd edition) p. 808 where the same passage appears. A number of decisions both of the Commissioner and the Courts are cited as examples. However the only Court decisions cited on this second part of the passage set out above were decided before the presumption section came into force. These decisions of the Courts do not really therefore assist me in deciding what is the effect of the presumption section. They merely indicate what had to be proved before the presumption section was enacted, and what still has to be proved once the presumption is displaced. The only Decision of the Commissioner which I can find which has found specific judicial approval in the Courts on the subject of this presumption section is the decision I have referred to above C.I. No. 3 of 1949. In that case a canteen assistant was bitten by a cat in the kitchen of the canteen where she was working. She had done nothing to cause the cat to bite her but it appeared that the cat had had kittens that morning. That evidence was held to be sufficient to displace the presumption section. The Commissioner however dismissed the appeal because the danger of being bitten by a cat was proved to have existed in the kitchen where the claimant was by reason of her employment having brought her there, and, accordingly, that it was correct to say that the accident arose out of her employment. The decision was based upon the evidence as a whole and no reliance was placed on the presumption section which had been displaced. It seems to me that where a young amah is murdered in her employer's premises where she worked by strangulation and knife wounds and nothing is stolen, there is some evidence from which it is possible to infer that the 'Accident' was unconnected with her employment. It is not the only inference that can be drawn but it is in my opinion sufficient evidence to be left to a jury. I am reinforced in this view by a Decision of the Commissioner reported in the 1958, Commissioner's Decisions No. R(1) 5 of 1959. This was a case of an unprovoked attack by a fellow workman. In the course of his decision the Commissioner had this to say :- " As an assault in the course of the victim's employment is the voluntary act of a human being prima facie the assault breaks the chain of causation between the victim's employment and the incapacity resulting from the assault. To rebut this prima facie inference the claimant must show that the circumstances of his employment exposed him to a speci 1 risk of assault which would not be encountered by persons not so employed". Although the Commissioner did not make specific reference to the presumption section, this section had been enacted some time before this decision was made. He presumably saw no point in referring to it because on the facts known, even though the victim was struck by a fellow workman, it was possible to draw the inference (an inference which was finally drawn on the evidence as a whole) that the assault was for a private reason unconnected with his employment. I am further reinforced in my view that there is sufficient evidence to the contrary in the present case by Commissioner's Decision No. C.S.I. 23/50, another decision made after the presumption section had been enacted in England. It was held that as there was no evidence of foul play or suggestion of larking, there was no evidence to justify the inference that the accident did not arise out of the deceased's employment and the presumption section applied. The position would clearly have been different if there had been evidence of foul play. Going back in time still further there is another decision reported in the Commissioner's Decisions No. C.I. 3/48. In this case the claimant had an altercation during working hours with the stores controller, who was also responsible for the canteen arrangements, about the supply of bread at the midday meal. He pointed his finger at the controller who struck it and unintentionally broke it. It was held that these were mere incidents in the chain of events which started with steps taken by the claimant to ensure that he was given bread with his lunch and these steps were reasonably incidental to his employment. The presumption in section 7(4) was, however, rebutted as there was evidence to the contrary. The decision was that the injury was an industrial accident although it was a border-line case. It would seem that the 'evidence to the contrary' in the above case was the fact that the injury was caused by an intentional act of the controller although it must be conceded also that the blow was struck as a result of the act of the claimant pointing his finger. There is a further reinforcement to my view at p. 485 of Vol. 23 Halsbury's Laws of England 3rd edition where the commentary on the National Insurance (Industrial Injuries) Act 1965 S.1 deals specifically with "assaults" in the following terms " Where an accident is caused by another person's misconduct, or by steps taken in consequence thereof, the person injured may succeed in his claim in the circumstances set out in S. 10.Post ..........." Pausing for a moment there is no provision in our Workmen's Compensation Ordinance equivalent to the section referred to. The commentary continues " ...... if the case does not fall within that section an injury due to an assault will be held to arise out of the employment only if it can be shown that the assault arose out of some incident occurring in the course of the employment, such as a dispute over work, or that the employment, by its circumstances, involved a special risk of assault not incurred by persons not so employed or not so employed under the same circumstances". This passage suggests that evidence that injuries were received in an assault is sufficient in itself to displace the presumption and that the burden of proof in assault cases is always on the claimant. Being of the view that there is some evidence in the present case from which it is possible to infer that the 'accident' did not arise out of the employment. I hold that the presumption is displaced and that the burden is on the applicant to prove on the evidence as a whole that on a balance of probabilities the accident arose out of the deceased's employment. In the present case I am of the opinion that the inferences which can be drawn from the evidence as a whole neutralize each other. The evidence of the drawers and refrigerator door being found open, and the fact that the body was found in her employer's premises during working hours give rise to a possible inference that the deceased's murder was because she discovered a trespasser on her employers premises and was thus connected with her employment. The fact that she was strangled and knifed, and nothing had been taken from the flat suggests that the murder was for personal reasons unconnected with her employment. I find it impossible to hold that one inference is more probable than the other. In my view the Applicant has not discharged the burden of proving that the deceased died by accident arising out of and in the course of the employment and I would therefore dismiss this claim with costs on Scale V. (N.B. Hooper) District Judge 20.7.73 Representation: PAGE - PAGE \* MERGEFORMAT - &`#$ N (DECEASED) FOR AND ON BEHALF OF HIMSELF AND OTHERS v. MRS. J. L. G. MCLEAN Title DCEC000029/1973 WONG GUN-FOOK, FATHER OF WONG UUK-LIN (DECEASED) FOR AND ON BEHALF OF HIMSELF AND OTHERS v. MRS. J. L. G. MCLEAN Normal.dot tangq Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR DCEC000029/1973 WONG GUN-FOOK, FATHER OF WONG UUK-LIN (DECEASED) FOR AND ON BEHALF OF HIMSELF AND OTHERS v. MRS. J. L. G. MCLEAN Title Microsoft Word Document MSWordDoc Word.Document.8 DCEC000029/1973 WONG GUN-FOOK, FATHER OF WONG UUK-LIN (DECEASED) FOR AND ON BEHALF OF HIMSELF AND OTHERS v. MRS. J. L. G. MCLEAN Normal.dot tangq Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR DCEC000029/1973 WONG GUN-FOOK, FATHER OF WONG UUK-LI