CHAN MAN LAP v. SECRETARY FOR JUSTICE

DCEC261/1998

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 261 OF 1998

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J U D G M E N T

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1. This is a claim for employee's compensation under various sections of the Employees' Compensation Ordinance, Cap. 282 ("the Ordinance"). The applicant is a prison officer employed by the Correctional Services Department (CSD).

2. On 13 December 1995, he was posted to the High Island Detention Centre (HIDC) which was then a closed camp for Vietnamese refugees. At just after 10 pm he was riding his motorcycle, with a colleague on the pillion, from the CSD staff canteen where they had just had dinner, and were returning to HIDC. The staff canteen was about 2.3 kilometres from the camp perimeter. During the journey, he ran into the back of a government motorcar, fell off his motorcycle and was badly injured, suffering amongst other injuries fractures of his knee and hip.

3. Subject to liability, the quantum of his claim has been agreed in the sum of $453,889.06. The only issue that requires resolution by me is whether at the time of the accident the applicant was in the course of his employment as a Correctional Services Officer. This is governed by section 5(1) of the Ordinance which is in these terms:

"Subject to subsections (2) and (3) [which have no application in this matter] 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."

4. The facts that really matter are not in dispute. I will recite them as I find them. On 13 December, the applicant was on 'A shift' duty from 0845 hours until 0045 the following day. There were two meal breaks. At lunch, the applicant was not allowed to leave his post. Lunch was brought to him in a lunchbox and consumed at this post. Dinner was from 2100 hours until 2210 hours. Officers were required to have dinner at the staff canteen which, as I have already indicated, was about 2.3 kilometres away. This is all very clearly shown on a map, Exhibit A1. The system was that the nightshift officers would come on duty at 2100 hours, for a 12 hour turn, until 0900 the next morning. After the nightshift arrived, the morning 'A shift' would go to dinner. After dinner, 'A shift' would return to the camp to work as support officers until 0045 hours when they had to go to their barracks, as shown on Exhibit A1, to sleep, this in case they were required during an emergency at night. They could not leave to go home until 0845 hours the next morning.

5. It was an operational requirement that the officers ate at the staff canteen. They were considered to be on duty. In the event of an emergency during dinner and the alarm sounded, they would be required to return to the camp and deal with that emergency.

6. Having regard to the distance from the camp to the canteen, the CSD would provide transport to and from the canteen at dinner time. This was usually a minibus, but if more officers required transport, a larger vehicle could be used or an additional minibus would be laid on. Many officers would use their own transport, either motorcars or motorcycles, which they did for their own convenience. This would cut out the waiting for the CSD transport to arrive. There was no express prohibition on officers using their own vehicles.

7. Having finished dinner at about 2205 hours, the applicant and his colleagues, both of whom were in uniform, returned on the applicant's motorcycle. On the journey back the collision occurred with the rear of the other car. As a result, the applicant was charged with careless driving and with driving in a closed area without a permit. To both of these charges he pleaded guilty and was fined. As to the latter charge, the applicant said, and I accept this, that he would have been entitled to such a permit given his posting at HIDC, and that he was in the process of obtaining such a permit, although he had delayed in making his application following his arrival at HIDC in July that year. In any event, his conviction on those two summonses does not affect the issue on liability that I am required to decide.

8. The applicant's case is that this journey from camp to canteen was very much part of his duty as an officer on 'A' shift. If he wished to have dinner, he was directed to eat at the staff canteen. He could not leave the camp and in an emergency during the meal, he would be required to abandon his meal and return to the camp.

9. Ms Alice Tsang who appears for the applicant, bases her submissions very much on the notion that what the applicant was doing when he was injured was incidental to the applicant's duties and that he should therefore be held to be in the course of his employment. In support of that proposition, she relies in particular on the House of Lord's decision in Armstrong Whitworth & Company Limited v Redford [1920] AC 757. In that case a girl employed as a machinist left the works where she was employed during the dinner hour, as the rules required, and went to a canteen provided by the employers for their women workers in another part of the premises. The canteen and the works were within the same curtilage but by day the canteen could only be reached by the street. After finishing her dinner, the girl was hurrying down a flight of stone steps leading from the canteen into the street in order to return to her work when she slipped and broke her ankle. It was held by a majority that she was entitled to succeed. In the course of his speech, Lord Sumner, he being one of the majority, at page 774 observed that;

"This case is one of the very large class of cases in which the dinner hour is emphatically the employee's own time. It is not one where the employee is bound to standby during mealtimes being liable to be called on and to have the continuity of his meal broken by the intervention of some immediate summons or duty. Here the works stopped and were cleared for an hour."

10. He then went on to decide the case in favour of the applicant because at the time that she was injured, she had finished her meal and was injured as she was coming down the stairs which were the provided means of access from part of her employer's premises to the particular part where the machines were when she slipped and fell. The stairs were therefore part of the premises where the employee was employed.

11. That case, therefore, was decided, as all these cases are, on an analysis of its particular facts. What I find of great assistance is the observation of Lord Sumner at page 774 which I have just cited. There, he was contemplating a situation where an employee might be bound to be on standby during mealtimes and being liable to be called and to have his meal interrupted by an immediate summons to duty. Lord Sumner was seeking to draw a distinction between such circumstances and the facts of the case that he and the other Law Lords were required to decide. Clearly, the circumstances where an employee was required to be on standby during the meal was one which would more easily lend itself to a finding that even during the meal, the employee remained on duty.

12. My analysis of these facts is that the 'A shift' officers remained on duty throughout their shift right up to 0845 hours the next morning when they could leave the camp and return to their homes. For the entire time of their shift they were on duty and liable to be called into action at any time, even when they were asleep in their barracks after 0045 hours or during dinner from 2100 hours to 2210 hours, as much as during their duties within the camp perimeter during the day.

13. From that analysis, I have no difficulty in coming to the conclusion that the drive to and from the canteen was part of the applicant's duty. During that drive to the canteen, he could have been turned round and directed back immediately to the camp in the event of an emergency. The return journey must be treated on the same footing. It really does need to be realised that this matter relates to the applicant's employment in a disciplined service. I am not concerned here with some commercial enterprise where a mealbreak is prima facie to be considered as the employee's own time rather than his employer's time.

14. My view is that the facts of this case are far different from cases where the court has been required to decide whether the applicant was injured whilst performing some activity incidental to his employment so that there it can properly be said that he was in the course of his employment. The applicant's case here is far stronger than that. He remained on duty from start to finish. That is the reality of the situation. It is wrong to seek to compartmentalise and dissect his activities during his shift. He was on call throughout his shift.

15. In such circumstances, Mr Gidwani's submissions concerning travel to and from work, as discussed in cases such as Vandyke v Fender [1970] 1 Lloyd's Rep 320 and Po Kwong-mui v Choy Lee Shipyards Limited [1993] HKDCLR 1, do not apply to the factual situation in this case as analysed by me. For these reasons I am content to hold that when the applicant met with his accident he was very much on duty at that time and as a result he must succeed.

16. But even if I am wrong in adopting such a broad approach to the facts and to the nature of the applicant's employment during the hours of his shift, I am also satisfied that the applicant must succeed on the narrower basis contended for by Ms Tsang that what he was doing at the time was an activity incidental to his employment.

17. Whilst Mr Gidwani understandably relies on Po Kwong-mui v Choy Lee Shipyards Limited supra., that case turned very much on its own facts. The workman in that case, instead of returning to work immediately after having had his meal, delayed for at least an hour. On the evidence, Judge Cheung (as he then was) considered that the workman's presence at that time was equally consistent with his returning to work as it was with some purpose unconnected with his employment. In the case here, the applicant was clearly returning directly from his meal to the camp.

18. The Court of Appeal decision in Lam Min & Others v Yau On Construction [1981] HKLR 646, is of more assistance in this matter, although as I have already observed, no two cases will be factually identical. The question here on the narrow basis that I am now considering is whether making this journey to the canteen in order to have his dinner was incidental to his employment. In my judgment, it matters not whether he took the CSD's own transport, his own motorcycle or indeed walked to and from the canteen, assuming time and distance had permitted a walk. This journey was clearly incidental to his employment on 'A' shift and is one of the more clear cases favouring an employee's application. On either basis the applicant must succeed.

19. It seems to me that the CSD have from the outset misdirected themselves in this matter where they took a rather disciplinarian approach that the applicant's case was never a runner simply because he was injured when not using the Department's own transport. They posed for themselves the wrong question, instead of considering what it was that the applicant was employed to do and viewing the accident in that context. This, in my judgment, can only admit of one result on either of the two bases that I have judged the application.

20. Accordingly, there must be judgment for the applicant in the agreed sum of $453,889.06. To that sum, there will be added interest at half the judgment rate from the date of the application until payment of the amount adjudged to be owing and inevitably there must be an order for costs with Legal Aid taxation of the applicant's costs.