YAU KAM CHING v. MAN FAT COMPANY LTD

DCEC 1400/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1400 OF 2009

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JUDGMENT

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BACKGROUND

1.  This is an application for compensation under the Employees’ Compensation Ordinance (Cap 282).  The issue that requires determination is whether the applicant, who was the victim in a serious traffic accident, sustained her injuries arising out of and in the course of her employment with the respondent. 

2.  The following matters are not in dispute:-

(1)   The respondent operated a restaurant in Kiu Kiang Street in Kowloon (“Restaurant”).  The premises of the Restaurant occupied both sides of the street with units 148B and 150-152 on one side and unit 151 on the other. 

(2)   Employees of the respondent had to work on premises on both sides of the road.  As a result, they had to cross the road frequently.

(3)   At around 5:30 pm on 28 April 2009, the applicant was hit by a taxi (JU 8165) driven by a Cheung Shun Kau and suffered serious injuries.  The accident took place on Kiu Kiang Street just outside the premises in question.  She was hospitalized for about one month thereafter.

3.  The applicant’s case is that she was introduced by a friend known as “Tall Man” to work at the Restaurant on the day in question.  Her working hours was from 4:00 pm to 2:00 am and that she could have 2 meals at work.  The first meal was at 5:00 pm and another at 11:30 pm.  Her monthly salary was HK$7,500.  28 April 2009 was her first day at work.  At around 5:00 pm she was about to have her meal with her colleagues in unit 151.  She walked to the other side of the road in order to get some bowls for the meal and was hit by the taxi when she returned with the bowls.

4.  The respondent’s position is straightforward.  It is denied that the applicant was its employee.  Further, even if the applicant was an employee, the injury did not arise out of and in the course of her employment.

EVIDENCE ADDUCED

The applicant’s evidence

5.  In short, the applicant’s evidence is that she ran into a friend known as “Tall Man” on 27 April 2009.  She knew Tall Man from working with him in another restaurant some 10 years ago and he was then working for the respondent at the Restaurant.  The applicant was looking for a job then and Tall Man enquired with his boss as to whether there were opportunities at the Restaurant but was told that there was no vacancy at the time.  The conversation took place outside the Restaurant.

6.  At around 7:00 pm that evening, the applicant received a call from the boss of the Restaurant informing her that the Restaurant was willing to employ her as a waitress and that she could start working on 28 April 2009 or 1 May 2009.  The monthly salary was HK$7,500 with 4 holidays per month and the working hours were from 4:00 pm to 2:00 am on each day.  Two meals were provided at 5:00 pm and 11:30 pm.  The applicant chose to commence work on the following day.

7.  She started working on the following day at 4:00 pm.  As the boss was not back yet, nobody asked for her HKID card or to complete any application form at the time. 

8.  The premises on one side of the road were occupied by a kitchen and a dining area (“Kitchen Side”).  On the other side, the premises were occupied by a fish tank and another dining area (the “Fish Tank Side”).  The applicant started working at the Kitchen Side and at around 5:00pm, the staff of the Restaurant gathered there for the first meal.  The staff used plastic bowls for their meals and there were not enough bowls.  Tall Man therefore asked the applicant to go to the Fish Tank Side to get some bowls.  The applicant crossed the road and got some bowls from the other side.  She was hit by the taxi on her way back.

9.  The applicant was hospitalized for almost a month and was discharged on 22 May 2009.  She recalled that she left her jacket at the Restaurant and asked a friend to pick it up thereafter.

The respondent’s evidence

10.  Two witnesses were called by the respondent.  Mr Chan Kam Chung was the supervisor of the Restaurant which was owned by his elder brother and his sister-in-law.  Ms Chu Mei Chun was a waitress at the Restaurant.  She started working in the Restaurant 6 years before the accident in question. 

11.  Mr Chan was the person responsible for hiring employees for the Restaurant.  His habit was to interview candidates personally and to take copies of the HKID cards and to record their personal details before they started working.  He had never met the applicant and she was never employed by him.  Further, there was also no employee known as Tall Man at the Restaurant.  He agreed that staff of the Restaurant had 2 meals each day whilst they were at work.  The meals usually took place at around 5:30 pm and 11:30 pm.

12.  On the day in question, Mr Chan arrived at the Restaurant at around 7:00 pm and he was told by Ms Chu that a traffic accident had occurred outside the Restaurant.  At the time, there were 6 full time staff and 3 causal workers at the Restaurant.   

13.  She was at work on the day in question but she claimed that she had never seen the applicant.  She was also not aware of any staff known as Tall Man.  She was not introduced to any new colleagues on the day.  She was aware that an accident took place during the meal time and her colleagues were talking about it.  However, she was working in a back alley behind one of the premises and did not witness the accident. She had no idea of whether the victim was a man or woman.  She also confirmed that staff of the Restaurant had two meals at the Restaurant at approximately 5:30 pm and 11:30 pm. 

DISCUSSION

Whether the applicant was the respondent’s employee

14.  On the whole, I prefer the evidence of the applicant.  She was clearly not a very sophisticated or educated person but her evidence was clear and straightforward despite the rigorous cross-examination and questions from the Court.  She was able to recall details of what happened on the material day just before the accident and many aspects coincided with the evidence of the respondent’s witnesses. 

15.  The respondent pointed to a number of minor inconsistencies in her evidence such as whether she was unconscious after the accident but I am satisfied that they do not affect my overall assessment of her credibility. 

16.  Whilst there is a complete absence of any record of the applicant’s employment with the respondent, this is not surprising given that the accident took place just over an hour after the applicant started working and before Mr Chan turned up at 7:00 pm.  This is consistent with the applicant’s evidence that she did not see the boss at the Restaurant on the day of the incident.

17.  Although Ms Chu’s evidence was also simple and straightforward, she was working in the back alley of one of the premises of the Restaurant when the accident took place.  It is therefore not surprising that she did not have the opportunity to meet the applicant on the day of the accident.  She also had difficulties recalling details of what happened on the day.  In the premises, the evidence of the applicant is preferred as compared to Ms Chu’s.   

18.  The respondent also submitted that the alleged introduction by Tall Man is not credible.  This is because the applicant came across Tall Man some ten years ago when they worked together for 2 days only.  It was therefore not possible for her to recognize Tall Man when they ran into each other so many years later.  This is an aspect that I found suspicious and the Court did ask a number of questions on this topic.  I have taken this aspect into account and formed the view that this does not affect the overall credibility of the applicant’s case.  Although Tall Man was not someone that the applicant was very familiar with, her evidence was that they chatted for about 20 minutes when they ran into each other on 27 April 2009. The applicant’s case in this regard is not incredible.

19.  The respondent argued that the applicant’s case was fabricated after the accident.  During cross-examination, the applicant revealed that a friend of hers did assist her in making the claim and the respondent suggested that it was this friend (a Mr Ng) who actively directed her to make the application.  Whilst it is accepted by the applicant that she was assisted by a friend in obtaining the relevant forms and assisting her in filing in the forms, there is no basis to suggest that her case was fabricated because of the assistance of this friend.  The applicant also suggested that she was advised by social workers at the hospital about her rights in making a claim.       

20.  In addition to the credibility of the witnesses, I have also taken the inherent probability of the applicant’s case into account.  The serious accident in question is not in dispute.  The respondent’s case is that the employment relationship was fabricated and the applicant had nothing to do with the respondent.  It would follow that the applicant came up with this scheme either before or more likely after the accident.  In this regard, I note that the first notice to the Labour Department regarding the accident was given by the applicant on 15 May 2009, ie when she was still hospitalized.  If the respondent is correct, what the applicant did was to make up this elaborate story shortly after the serious accident when she was still in the hospital.  I find this difficult to believe and inherently improbable.

21.  In light of the aforesaid, I accept the applicant’s case that she was asked to commence employment on 28 April 2009 and was working at the Restaurant when the accident took place.  She was an employee of the Restaurant when the injuries were suffered.     

Were the injuries sustained arising out of and in the course of employment

22.  The only point that was made by the respondent in this regard was that because the employees of the Restaurant were free to leave the Restaurant for meals, there were not in the course of the employment simply because the Restaurant happened to have offered the meal in question and that they chose dine at the Restaurant.  I am unable to accept the respondent’s contention.

23.  In Lam Min v Yau On Construction Co [1981] HKLR 646 at 650, the Court of Appeal adopted the following statement by Roskill LJ in R v National Insurance Commissioner Ex parte Michael [1977] 2 All ER 420 at 427:-

“These cases authoritatively decided that the phrase ‘in the course of his employment’ does not mean during the currency of the engagement, but means in the course of work which the workman is employed to do and what is incident to it; and absence on leave for the workman’s own purpose is an interruption of the employment”. (emphasis added)

24.  It is not disputed that the employees of the Restaurant were given short breaks for the two meals which would usual last between 20 to 30 minutes and that they would usual dine at the Restaurant.  I am satisfied by crossing the road to obtain the bowls for the meal, the applicant was engaged in an activity reasonably incidental to her employment with the applicant.

25.  In addition to the aforesaid, I also note that the respondent’s insurance policy with Blue Cross also provides as follows under clause M04A:-

“Meal & Lunch Time Clause

It is hereby understood and agreed that in the event of any employee of the insured staying in the insured’s premises meal and lunchtime being injury or killed shall be deemed to have arisen out of and in the course of the employee’s employment.”

QUANTUM

26.  The quantum claimed is not disputed by the respondent.  They are set out in the opening submissions of counsel for the applicant.  I shall set them out below. 

Section 9 compensation 

27.  The applicant was 47 years old at the time of the accident and her monthly salary was HK$7,500.  It is agreed that the loss of earning capacity is 8% and the total compensation under this head is HK$7,500 x 72 x 8% = HK$43,200.

Section 10 compensation

28.  The applicant was given sick leave from 28 April 2009 to 28 May 2010.  The total number of days for sick leave period is 396 days.  During this period, she did not receive any payment and the compensation under this head is therefore HK$7,500 x 396/30 x 4/5 = HK$79,200.

Section 10A compensation

29.  The medical expenses incurred by the Applicant were HK$377 being payments made to Caritas Medical Centre.

CONCLUSION

30.  For the reasons set out above, the compensation for the applicant should be: (a) HK$43,200 under section 9; (b) HK$79,200 under section 10; and (c) HK$377 under section 10A.  The applicant is also entitled to interest on these sums at half judgment rate from the date of injury to the date of judgment and thereafter at judgment rate until full payment.

31.  I also make a costs order nisi that the respondent do pay the costs of these proceedings, to be taxed if not agreed, with a certificate for counsel.  The applicant’s own costs are to be taxed in accordance with Legal Aid Regulations.