NG MUNG KHIAN v. WING KWONG PAINTING CO LTD AND ANOTHER

CACV 217/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 217 OF 2004

(ON APPEAL FROM DCEC NO. 749 OF 2002)

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REASONS FOR JUDGMENT

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Hon Woo VP:

Introduction

1. At the conclusion of the hearing on 21 June 2005, we dismissed the appeal with costs.  I set out my reasons below.

2. This appeal arose out of an employees’ compensation claim consequent upon the death of Chow Shek Fung (“the deceased”) that took place on 4 January 2001.   

3. On that day, the deceased was under the employ of the 1^st respondent as a painting worker at the 2^nd respondent’s construction site inside a building in a public housing estate in Kowloon.  The 1^st respondent was a painting sub-contractor of the 2^nd respondent at the said site.

4. On 4 January 2004, a fire broke out at the 1^st respondent’s temporary storeroom erected on the 1^st floor of the carpark at the said site.  After the fire subsided, the deceased’s charred body was found in the storeroom.  

5. A coroner’s inquest was held and the coroner’s jury returned an open verdict as to the cause of the death.

6. Under an admission of facts filed by the 1^st and the 2^nd respondents, the respondents admitted that on that day, the lunch hour for the 1^st respondent’s employees at the said site was 11:45 am to 1:00 pm, and that the deceased requested early leave to attend to personal matters before 11:45 am.

7. In their Answers to the claim, the respondents denied liability under the Employees’ Compensation Ordinance,Cap 282 (“the Ordinance”), claiming that the deceased had died from a deliberate self-injury or suicidal act, by reason of which, under section 5(2)(b) of the Ordinance, no compensation is payable to the applicant, the widow of the deceased, who made the claim under the Ordinance on behalf of herself and other dependants of the deceased.

8. The claim was heard before Judge H C Wong in the District Court.  The judge identified two issues to be resolved, namely,

(a) Was the deceased killed in the course of employment and did his death arise out of the employment?

(b) Was the deceased killed in an accident or was the death self-inflicted?

9. She found that there was simply insufficient evidence for her to come to a conclusion that the deceased committed suicide.  She also held that the deceased died in the course of employment.

The appeal

10. Against the decision of the judge, the respondents now appeal.  The appeal is limited to the question of liability, as the compensation was agreed in the event of liability being found against the respondents.

11. Although seven grounds of appeal are raised, the cumulative effect of the first six grounds is that the judge had erred in disregarding the burden of proof on the part of the applicant that

(a) the deceased’s death arose out of an accident;

(b) the accident took place in the course of the deceased’s employment; and

(c) the accident arose out of the employment.

12. In connection with the above issues, the respondents assert that the judge came to the conclusion that the deceased died in an accident in the course of employment by reversing the burden of proof and requiring, in effect, the respondents to disprove liability without requiring the applicant to establish liability.

“Deliberate self-injury” or otherwise

13. Central to the issues is the judge’s finding that there was insufficient evidence for her to conclude that the deceased committed an act of suicide. 

14. Suicide is clearly a “deliberate self-injury” as provided for in section 5(2)(b) of the Ordinance to exclude the payment of compensation under the Ordinance. 

15. In contradistinction, section 5(1) provides that

“(1)       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.”

16. In Fenton v J Thorley & Co Ltd [1903] AC 443, after reviewing some authorities on the meaning of “injury by accident” within the meaning of the Workmen’s Compensation Act, 1897, Lord Macnaghten stated at p 448:

“I come, therefore, to the conclusion that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed.”

17. In Madam Fan See-yuk v Ocean Tramping Co Ltd [1974] HKDLR 1, where the deceased met his death while employed by the respondent as a seaman on a ship which was sailing at the time from Dakear to Singapore and no person on board the ship witnessed his death, Power DJ (as he then was) said at page 7:

“The only alternative to suicide in the present case is death by accident, in accordance with the meaning of the word as it is used in the Workmen’s Compensation Ordinance.”

18. The circumstances of the case before us are no different.  If the judge was not satisfied that the death of the deceased was caused by suicide, the only alternative left is death by accident.

19. Mr Lin, for the respondents, relies on Bender v Owners of Steamship Zent [1909] 2 KB 41, where it was held that it was for the applicant to prove the accident arose out of and in the course of the employment.  This is correct.  However, in view of the judge’s finding that the accident took place in the course of employment, it is deemed by section 5(4)(a) to have arisen out of employment.  I shall revert to section 5(4)(a) later.

20. The judge found that the fire broke out between 12:15 and 12:25 pm.  There is no challenge to this finding. 

21. After examining the circumstances surrounding the incident very carefully, the judge said:

“10. The Respondents admitted that the workers would break for lunch between 11:45 a.m. and would resume work at 1 p.m., it is also foreman Yu Ka Ming’s evidence that indeed that was the period of the lunch break.  The evidence of the Applicant’s witness, Leung Yat Fai, a co-worker of the Deceased was even though a worker may break for lunch early, he would not start work earlier than 1 p.m.  In fact, it is the 1st Respondent’s witness Mr Luk’s evidence that unless there was a special approval from the site supervisor, no worker would be permitted or expected to work between 12 noon and 1 p.m.”

“15. …  There were suggestions from the witness statements at the police investigation that the Deceased seemed to have been suffering from some form of lung ailments, for after a chest X ray he had taken 1 month leave of absence and had been resting at home during that period.  He had returned to work the day before the incident that led to his death.  One of the Respondent's witness Mr. Yu also suggested that the Deceased was in financial difficulties for he had taken $3,500 money which he should have paid to the transport workers and he failed to repay it though he had promised to repay the 1st Respondent when he resumed work in January 2001.

16. Apart from the aforesaid, there was no further evidence to suggest the Deceased should take his own life.  From the Applicant's evidence, there seemed to be nothing peculiar about him the night before or when the Deceased called her on the phone that morning at around 11:15 a.m.  He had asked her what she was doing and told her he was going off to lunch.  Neither did his co-workers notice anything wrong about him the day before or indeed on the day of the incident at the site.

17. Based on the evidence disclosed, there were simply insufficient basis to conclude the Deceased should have deliberately inflicted the injuries on his person.  The Coroner's jury was unable to reach any such conclusions and had left an open verdict.

18. The Deceased was well paid at over $18,240 per month.  The Applicant did not complain about being short of household money.  There was no evidence that the Deceased was in serious trouble over debts.  After all, the Deceased could have easily repaid the $3,500 to his employer within a week of his resumption of work at the site.”

“24. The fact that the Deceased was seen leaving the storeroom and locking up the storeroom after him by his workmates some time after 11:15 a.m., and the fact that more than two of his workmates visited the storeroom to deposit their tools before leaving the site for lunch showed that it was quite possible that the Deceased might have done the same prior to going out to lunch.  And upon his return to the site and in preparation for work, he visited the storeroom to prepare and equip himself for work.  It was during this period of time that he met with the accident.  Though it may be earlier than the usual time for work at 1 p.m. it cannot be considered to be too early, and there being no direct witnesses to the accident, one cannot rule out that he was in the process of preparing for work.  Failing evidence to show the Deceased inflicted injury to himself or other positive evidence to the contrary, on the balance of probability, the Respondent had failed to displace the presumption.  The Respondent's expert evidence, which was also adduced at the Coroner's Inquest, cannot be considered as conclusive that the Deceased had committed suicide.  There was simply insufficient evidence adduced for this Court to come to a conclusion that the Deceased committed an act of suicide.”  (Emphasis added)

22. The fire expert’s evidence was that it was possible that the deceased killed himself.  However, there was evidence of the position of the deceased’s body when found inside the storeroom to show that he was at the far side of the room avoiding the fire, which according to the expert, was started in the middle of the room.  While the expert stated that some people, despite their wish to kill themselves by setting fire, might get away from the fire to avoid the fire and the pain as a matter of natural reaction, he accepted that it was possible that the fire could have been started accidentally on the clothes the deceased was wearing or the clothes kept in the storeroom.  We do not see anything wrong for the judge to conclude that there was insufficient evidence of suicide. 

23. It is to be noted that it was the respondents who raised the issue of suicide or “deliberate self-injury”.  Presumption or no presumption, it cannot be gainsaid that the onus of proving suicide must be on the maker of the allegation.  The respondents’ assertion that the judge had reversed the burden of proof to require the respondents to disprove liability, if directed at the averment in the Answer that the death resulted from a deliberate self-injury, is plainly unsustainable. 

24. Moreover, the judge’s reference to the word presumption in paragraph 24 of her judgment (cited above) followed immediately after her reference to Butterworth’s Hong Kong Personal Injury Service Vol 2, at IV [353] where the editors deal with “the presumption of employees being in the course of employment”.  It was not a presumption of accident as against deliberate self-injury.

25. Insofar as the respondents’ complaint relates to the judge’s reliance on section 5(4)(a) and (b) of the Ordinance, the judge was fully entitled to do so.  

26. Section 5(4) provides as follows:

“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;

(b) an accident to an employee shall be deemed to arise out of and in the course of his employment, notwithstanding that the employee was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the employee for the purposes of and in connection with his employer's trade or business; ….”

27. In the circumstances of this case, the judge was amply justified to come to the conclusion that the death of the deceased arose out of accident, as the only alternative open when she was not satisfied that the deceased committed a deliberate act of self-injury.

28. In relation to “in the course of employment”, the judge specifically referred to Lord Dunedin’s observation in Charles R Davidson and Co v M’Robb or Officer [1918] AC 304, at 321:

“In my view ‘in the course of employment’ is a different thing from ‘during the period of employment.’  It connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master.  No doubt it need not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work - e.g., in the workman's case the taking of meals during the hours of labour; in the servant's, not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master's roof.”  (Emphasis added)

29. In R v National Insurance Commissioner, ex parte East [1976] ICR 206, the applicant arrived at the employer’s biscuit factory at 11:30 am, changed into the compulsory cap and apron and went to the canteen for a midday meal while she was only due to start work at 12 noon.  She was injured when slipping on a patch of custard in the canteen,.  O’Connor J, in the Queens Bench Division, said at page 208B-G:

“But the course of employment, it is now well established, is not limited to starting at the moment when the workman begins to do the actual work for which he is employed.  It is common sense that when he arrives at the factory and, for example, engages in getting into protective clothing or getting into overalls and caps, as in the present case, which are required by the employers, the course of employment has begun.  Common sense tells us that and the law says so.

… The law now is that so long as it can be said that the activity upon which the workman is engaged is reasonably incidental to his employment, then the chain is not broken and he remains in the course of employment.”  (Emphasis added)

30. O’Connor J made it clear that whether an activity of the workman was within the course of employment or whether there was an interruption of the course of employment were questions of fact and degree for the fact-finding tribunal to decide.  

31. In the same case, Lord Widgery CJ stated at page 210C-D:

“… it seems to me that certain words in Willis’ Workmen’s Compensation, 37^th ed. (1945), p.36 might well be taken into account and be helpful:

‘The course of employment may be taken to have commenced although the hour for actual work has not struck, if the workman’s arrival on the premises is either not unreasonably early, or is necessitated by the circumstances of the employment, or if, at the time of the accident, he is doing something on the employer’s premises which is necessary to be done to equip himself for his work, …’

I do not for a moment suggest that others administering this legislation in the future must slavishly adopt the words of the editor, but it is at all events a good starting point.”

32. From the paragraphs of the judge’s judgment cited above, it is abundantly clear that the judge had taken into account all the surrounding circumstances that are relevant to deciding whether the accident took place in the course of the employment of the deceased.  She concluded that it did.  We do not find any justification in interfering with this finding.  Once she was satisfied that the accident arose in the course of the deceased’s employment, by virtue of section 5(4)(a), in the absence of evidence to the contrary, the accident shall be deemed also to have arisen out of that employment.  The judge was fully entitled to rely on that presumption or deeming provision.

33. The judge’s reliance on section 5(4)(b) was apparently for the purpose of dealing with the evidence that no worker was to start work in the afternoon until 1 pm and with the suggestion that the fire was possibly caused by the smoking of the deceased, who was a smoker of cigarettes, in the storeroom which might be against the employer’s instructions.  The deceased returned to the storeroom after the lunch break at 12:10 pm, and that could have been for a number of reasons, such as getting tools, changing into working gears and getting himself prepared for work before resuming work.  There was evidence that before he took the early leave, he was seen to depart from the storeroom.  These entitled the judge to hold that he returned to the storeroom at 12:10 pm after the break to prepare and equip himself for work.  The judge having found that there was insufficient evidence of a suicide, such activities must be acts incidental to, for the purposes of and in connection with the employer’s trade, within the ambit of section 5(4)(b).  These are all “natural incidents connected with the class of work” as enunciated by Lord Dunedin or “reasonably incidental to his employment” in the words of O’Connor J. 

34. Although the grounds of appeal are couched variously as involving errors of law, this appeal is basically one against the judge’s findings of fact.  Eventually, Mr Lin had to seek, and was granted, leave to amend the Notice of Appeal by adding a ground (4A) that challenges the judge’s findings of fact with reference to the weight of the evidence.  In order to succeed on such a challenge, Mr Lin has to satisfy us that the judge’s findings of accidental death and that the accident took place in the course of employment are plainly wrong.  See para 59/1/48 of Hong Kong Civil Procedure, 2004, Vol 1. 

35. Mr Lin also complains that the judge did not expressly analyse the fire expert’s evidence to arrive at the conclusion that it was not an act of deliberate self-injury.  It is pertinent to bear in mind the observation of Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1 at 45:

“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy.  It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence.  His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ..., of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.  It would in my view be wrong to treat Benmax [[1955] AC 370] as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved.”

36. In Siu Yau-tai v Hung Chung-hing and Others [1989] 1 HKLR 347, the deceased was sent by his employer to do plastering work on the tenth floor of a building under construction.  He was subsequently discovered dead at the bottom of a fireman’s lift shaft on the site.  There was no direct evidence as to exactly how he met his death.  The site foreman testified that lift doors had been installed and they were closed at the material times.  One of the issues before the Court of Appeal was whether the deceased was doing anything at the time he fell down the lift shaft which was so far removed from his duties as to then take his actions outside the course of that employment – a “frolic of his own”.  Penlington JA stated at page 349F-350B:

“The words ‘in the course of employment’ have been considered in many cases in various Commonwealth jurisdictions.  There is no need to set out these in any detail.  In Fitzgerald v. Clarke (W.G.) and Son Ltd. [1908] K.B. 796 Buckley L.J. said: ‘The words “out of” point, I think, to the origin or cause of the accident: the words “in the course of” to the time, place and circumstances under which the accident takes place’.  Here there is no doubt that the accident took place during the time and at the place of employment.  The exact circumstances however are unknown and that aspect was considered by Williams D.J. in Fang Po-Chun v. Mollers Ltd. [1966] HKDCLR 96.  There a seaman simply disappeared from a ship on which he was a fireman and was presumed drowned.  The employer contended that as his place of duty was the engine room where there was no risk of going overboard; by going on deck he was not acting in the course of employment.  That was rejected and all the relevant authorities reviewed in cases where the actual cause of the accident was unknown.  The most helpful on the facts here is probably Fisher or Simpson v. L.M. and S. Ry. Co. [1931] AC 357 where a train guard fell onto the track and was killed.  There was no evidence of how he felt out of a compartment the door and windows of which were found closed.  Compensation was nevertheless held to be payable.  Lord Dunedin referred to cases involving seamen who were lost from ships for no apparent cause such as Wild Rose [1910] AC 486 and Lendrum v. Ayr Steam Shipping Co. [1915] AC 217.  At p.365-6 after citing those and other authorities he said:

'if there are facts from which it may be deduced that his employment brought him within, or allowed him to be within, proximity of the peril to which his death could properly be ascribed and the arbitrator comes to the conclusion that the accident which causes death arose out of as well as in the course of his employment, his judgment should not be disturbed.'

The same principle naturally would apply to the judge hearing a claim in the District Court here.

In the absence of any clear evidence as how the deceased fell down the shaft, we are satisfied that the judge was entitled on such evidence as there was to come to the conclusion that the accident here arose in the course of the employment, and therefore compensation is payable to his dependants.  Even if he did fall due to his inspecting the lift shaft out of curiosity that would not in our view constitute conduct which would be outside the course of the deceased’s employment.”

37. I am not persuaded that the judge is plainly wrong in making her findings. Similar to the view this court took in Siu Yau-tai, I do not see any justification in having the judge’s judgment disturbed.

38. What I have said above disposes of the first six grounds of appeal, including ground (4A) raised by way of amendment.

39. The 7^th ground of appeal challenges the judge's invoking section 5(3) of the Ordinance.  In view of what I have said above, it is unnecessary for me to dwell on this matter, which was raised by the parties and dealt with by the judge in paragraphs 26 and 27 of her judgment.  However it is abundantly clear that the judge did not find it necessary to rely on section 5(3) of the Ordinance because she stated at paragraph 28 of her judgment:

“As there was no evidence to suggest any serious or wilful misconduct on the Deceased’s part, reliance on S.5(3), therefore, will not be necessary.”

Conclusion

40. For the reasons given above, the appeal must be dismissed with costs.  Since the applicant is legally aided, there should be an order that her costs are to be taxed in accordance with the Legal Aid Regulations.

Hon Yeung JA:

41. I agree.

Hon Yuen JA:

42. I agree.