CHECK CHOR CHING v. WIK FAR EAST LTD.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

EMPLOYEES' COMPENSATION CASE NO. 248 OF 1990

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JUDGMENT

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Facts

1. The Applicant was an employee of the Respondent. She worked from 7 a.m. to 3 p.m. at the Respondent's factory at 339 Chaiwan Road at the junction of San Yip Street, Hong Kong. The factory is a multi-storey building. The Respondent provided 2 buses to carry its workers to and from work. The buses served 2 routes. One bus served the Chai Wan area and the other served the North Point area. The buses would stop at the front of the factory and sometimes across the road from the factory to let the workers get on and off the buses. The bus service was provided by the Respondent free of charge. The workers had the choice of taking the buses or not. There was public transport near the factory.

2. On 8th August 1988, the Applicant finished work at 3 p.m. She left the factory building and boarded one of the buses provided by the Respondent in order to go home. She said she intended to stop by the market near her home to do some shopping before going home. After boarding the bus, she was told by her colleague that she was on the wrong bus. She immediately alighted from it and crossed San Yip Street in order to board the other bus. While she was walking out from the front of the bus, she was knocked down by a goods vehicle. It is not disputed that San Yip Street is a public road.

Issue

3. The parties agreed that I only need to decide on the question of liability. The issue is whether the Applicant was injured by an accident arising out of and in the course of her employment.

Section 5(5A) of the Employee's Compensation Ordinance

4. Mr. Caffrey, counsel for the Applicant, submitted that the Applicant was injured in the course of her employment. He relied on Section 5(5A) of the Employee's Compensation Ordinance ("the Ordinance") which deemed an accident to arise out of and in the course of the employment, if the employee was injured while he was, with the express or implied permission of his employer, travelling as a passenger by a means of transport operated by his employer to or from his place of work.

5. The Applicant was not on the bus provided by her employer at the time of the accident. Mr. Caffrey submitted that the section is applicable even if the Applicant was only on her way to the bus when the accident occurred. He submitted that the object of the Ordinance is to provide compensation to workers and thus one must give a generous and liberal interpretation to Section 5(5A) in order to cover the present situation.

6. He relied on 2 English decisions, namely, Bremme v. Dubery [1964] 1 W.L.R. 119 and Murphy v. Verati [1967] 1 W.L.R. 641 in support of his submission that one must construe the word 'travel' liberally. He said travelling is a continuing process. He said the Applicant had commenced the travelling by boarding the bus notwithstanding she subsequently alighted from it and walked towards another bus. I shall deal with these 2 cases first.

7. The 2 cases were relating to offences under the English Regulation of Railways Act 1889 and Transport Act 1962. The defendants were charged with unlawfully travelling on a railway without paying the fare and with intent to avoid payment. It was held that a man who has been physically conveyed on a railway does not cease to travel on that railway merely by alighting on the platform. The decisions were based on a construction of the relevant provisions of the statues. They are not relevant to a general construction or interpretation of the word "travel". I do not find the 2 cases assist me in construing the meaning of the word "travel" under Section 5(5A).

8. Section 5(5A) was enacted to overcome the difficulties as illustrated by the case of LO Kwai-chun v. Hong Kong Oxygen & Acetylene Co. Ltd. [1980] HKLR 420. It was held in that case that when a workman was injured while travelling to or from work in a vehicle provided by his employers on a public road or outside the work premises he was not "in the course of his employment" unless his terms of employment obliged him to travel in that way. Section 5(5A) was modelled very closely on Section 53 of the English Social Security Act 1975 which provides that:

(1)     An accident happening while an employed earner is, with the express or implied permission of his employer, travelling as a passenger by an vehicle to or from his place of work shall, notwithstanding that he is under no obligation to his employer to travel by that vehicle, be deemed to arise out of and in the course of his employment if -

(a)     the accident would have been deemed so to have arisen had he been under such an obligation; and

(b)     at the time of the accident, the vehicle -

(i)    is being operated by or on behalf of his employer or some other person by whom it is provided in pursuance of arrangements made with his employer; and

(ii)    is not being operated in the ordinary course of a public transport service.

(2)     In this section references to a vehicle include a ship, vessel, hovercraft or aircraft.

9. It was stated in Halsbury's Laws of England, Volume 53, at Paragraph 496, that as this is an artificial extension of the course of employment, it must be strictly limited to the circumstances described. It referred to a nubmer of decisions of the British Social Security Commissioners on the section. Such decisions can be found in Lewis, Compensation for Industrial Injury where at page 80 it was stated that, "The protection of Section 53 only extends to employees "travelling as a passenger by an vehicle". This means that the employee must be injured while actually being carried, for in R(1) 67/52 the phrase was taken to exclude injuries which occur as the claimant approaches the transport involved. Thus benefit was refused where the claimant was injured crossing the road to board the employer's bus in R(1) 79/51, and where the claimant was walking towards one bus having alighted from another in R(1) 48/54."

10. I agree that Section 5(5A) gives an artificial extension to the meaning of the course of employment and one must construe it narrowly. I find Section 5(5A) would only apply if the Applicant was injured while she was actually being carried in the bus. As she had not yet boarded the bus, I find that she could not rely on the deeming provision of the Ordinance in order to say that she was in the course of her employment at the time of the injury.

Section 5(1) of the Ordinance

11. Mr. Caffrey submitted that even if Section 5(5A) is not applicable, the Applicant was still in the course of her employment at the time of the accident and thus entitled to compensation under Section 5(1) of the Ordinance. He submitted the decision of Lo Kwai-chun (supra) is no longer applicable in the light of Section 5(5A) of the Ordinance. He submitted because of the situation in the present case, a different test ought to be applied. He relied on the decision of Lam Min v. Yau On Construction Co. [1981] HKLR 646 and Ng Oi Wa v. Lamp's Co. (Civil Appeal No. 129 of 1980).

12. The element of obligation or duty is no longer an requirement in determining whether the worker who travels on a transport provided by his employer is within the course of employment. However Lo Kwai-chun affirmed a long time of authorities, I refer in particular to Weaver v. Tredegar Iron & Coal Co. Ltd. (1940) A.C. 955 where Lord Romer held that,

"now an employee after he has left the scene of his labours and 'the means of access thereto' may find himself upon a highway or a public railway station. He will by then have fully performed the act of going home that is incidental to his employment. Whatever he does thereafter whether on foot, or by omnibus, or by train, he does in virtue of his status as a member of the public and not in virtue of his status as an employee."

13. This passage clearly shows that the Applicant could not be in her course of employment after she left the factory premises and while she was on San Yip Street which was a public road. The Applicant had finished her work and she was going to take the bus home. She was on the road as a member of the public and not as an employee of the Respondent.

14. Mr. Caffrey submitted that it was incidental to the employment of the Applicant for her to take the bus provided by the Respondent and for her to walk to the bus after mistakenly boarded the wrong bus. In Ng Oi Wa v. Lamp's Co. (supra) the Court of Appeal held that

"where a workman, whose place of employment is on an upper floor of a multi-storey building, makes use of the common parts and services of that building in order to reach or leave his place of employment, then he is in the course of his employment while so doing."

15. This decision merely extends the scope of the course of employment when the worker was using the means of access in a building in order to reach or leave his place of work. It has no application to the present case where the Applicant had already left the factory premises and was on a public road.

16. In Lam Min v. Yau On Construction Co. (supra) the Court of Appeal adopted the "incidental to the work" test in preference to the "duty" test as set out in Lo Kwai-chun. In Lam Min, a worker was employed at a site which was only accessible by boat. There were no facilities for lunch at the site and it was customary for the workmen to travel to the mainland for their meal on a boat provided by the site owner. There was no charge for this facility and the employer extended the lunch break by 15 minutes for travelling time. The only alternative forms of transport were privately owned motor boats which costs $20 per trip or a barge, which made unscheduled journeys from the village near the site at $2 per trip. The worker was killed when the site owner's vessel taking the workmen for their lunch collided with a shrimp boat and sank. The Court of Appeal distinguished Lo Kwai-chun on 3 grounds. Firstly, it was not a going to or coming from work case. It is in the course of the daily work itself and more analogous to the tea break line of case. Secondly, the only access was an open stretch of water and thirdly, the employer either provided, or arranged for the provision of a boat. The Court of Appeal held that in the circumstances of the case, the journey was not an interruption of the work of the deceased but an event incidental to it and the Court held the accident arose out of and was in the course of the deceased's employment.

17. The facts of the present case are clearly distinguishable from those of Lam Min. The Applicant had finished her work and was walking to board a bus. The access to the factory was by way of a public road. The act of walking towards the bus was not incidental to her employment. I do not consider it appropriate to apply the Lam Min test to the present case and I held that the Applicant was not acting in the course of employment at the time of the incident.

18. As to the question whether the accident arose out of the employment, the correct test is set out in Margaret Thom or Simpson v. Sinclair [1917] A.C. 127 where a worker was injured when the roof of the shed in which she was working was brought down upon her by the collapse of a wall in a construction site next door. Viscount Haldane held that it was

"enough that by the term of her employment the appellant had to work in this particular shed and was in consequence injured by an accident which happened to the roof of the shed."

In the present case, the Applicant was injured after she had ceased work and while she was on a public road. She was not obliged to take the bus as part of her term of employment. Her injury did not arise out of the employment.

19. Mr. Caffrey in his submission referred me to the Notice By Employer (Form 2) provided by the Respondent under the Ordinance. The Respondent answered 'yes' in response to the question in the Notice 'Did the accident occur in the course of work?' I do not attach much weight to this answer. It is for me to decide, on the facts before me, whether the accident occur in the course of work and I have decided it did not.

Conclusion

20. I find the Applicant's injury was not caused by an accident arising out of or in the course of her employment. The claim is not within the ambit of Section 5(1) of the Ordinance. The application is dismissed with costs to be taxed in accordance with Legal Aid Regulations.

Frank Caffrey, Senior Legal Aid Counsel for the Applicant. Anderson Chow instructed by W.K. To & Co. for the Respondent.