SIU YAU TAI AND OTHERS v. HUNG CHUN HING AND OTHERS

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J U D G M E N T

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Penlington, J.A..

1. This is the judgment of the Court.

2. This is an appeal from a decision of Henry Wong D.J. sitting in the District Court of Hong Kong in which, on the application of the widow of the late Hung Po Lam (the deceased), he awarded compensation under the Employee's Compensation Ordinance to the deceased's two young children.

3. It is not in dispute that on the 1st May 1987 the deceased, who was the husband of the Applicant and the father of two children who were claimed to be wholly dependant on him, was employed by the 1st Respondent, a sub contractor of the 2nd Respondent who was in turn a sub-contractor of the 3rd Respondent, on a construction site in Kwun Tong. On that day he was sent by his employer to do plastering work on the 10th floor, but failed to re-appear or to report for work the following day and for some unknown reason it was not until the 7th May that his body was found at the bottom of a "fireman's" lift shaft on the site. A post-mortem report revealed that he had died some four to six days before the 7th which seems to fit in with the deceased dying on the 1st May. The cause of death was multiple head injuries.

4. There was an inquest, the record of which was admitted pursuant so a hearsay notice without dispute. It emerged in the course of that inquest that the deceased had had an argument with his wife about a month before the accident, and that they had separated. On the 3rd April she had gone to live with an uncle and the deceased was then living alone with their two children aged 6 and 4. She did not see him again. She had her own job. There had been an arrangement for some three months before the accident that the children were looked after during the day by a baby sitter who lived nearby and she gave evidence that the deceased brought the children to her as usual before he went to work on the lst May but she returned them to relatives in the evening. She also said that the fee of $50 per day which she charged for the baby sitting was paid for the period of one month before his death by the deceased. That fee included the provision of a mid-day meal for each child.

5. There are two points taken here by the Appellant. The first is that there was no evidence to support the judge's finding that the accident arose "out of his employment". It is not in dispute that there was no direct evidence as to exactly how the deceased met his death All it is known is that he went to the 10th floor at the directions of his employer to do some work there and that he was found in the lift shaft some six days later. There was evidence that the wooden platform on which the deceased was probably standing was unstable and it may be he fell from it and down the lift shaft although it is by no means clear how that could have happened. The site foreman testified that lift doors were installed on all floors by the 1st May and they were closed.

6. Mr. Wong very fairly concedes that he cannot argue that the deceased may have committed suicide but he said there is a possibility that, perhaps out of curios he went off on a frolic of his own, and, for some unknown reason fell down in the lift shaft. He submits that would mean that the accident was not in the course of the deceased's employment.

7. Clearly the deceased was on the 10th floor of this construction site in the course of his employment. The only question on liability is whether he 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".

8. Section 5(6) of the Employees' Compensation Ordinance provides as follows:

"(6) For the purposes of this Ordinance an accident arising in the course of an employee employment shall be deemed, in the absence of evidence to the contrary; also to have arisen out of that employment."

9. Here there is no evidence whatever that anybody was with the deceased On the 1st May who might, for some total1y unknown reason, have pushed him down the lift shaft, even if that could have been done, which seems highly unlikely. There was however evidence that the small wooden platform on which the deceased was probably standing to do his plastering was unstable. He may have stumbled it fell against the lift door which opened and he fell through. He may for some unknown reason, have b en curious about the lift and accidentally fallen down while satisfying that curiosity also an unlikely but possible explanation.

10. 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. 1900 K.B. 796 Buckley L.J. said - "The words our 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 a t 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 B D.C.L.R. 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 oh the facts here is probably Simpson v. L.M. and S. Ry. Co. 1931 A.C. 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 referred to cases involving seamen who were lost from ships for no apparent cause such as Wild Rose 1910 A.C. 486 and Lendrum v. Ayr Steam Shipping Co. 1915 A.C. 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.

11. In the absence 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 there or compensation is payable to is 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 outs de the course of the deceased's employment.

12. The second point is on the question of whether the two children for whom claims were made were in fact wholly depended on the deceased at the brie of his death, ad was found by the trial Judge. Mr. Wong for the appellant submits that there was no evidence as to that dependency given by their mother, who was employed and that it was therefore a reasonable assumption, and one which should have Been made, that part of her income was used to support her children.

13. The Appellant relies on he decision of the Full Court in Tai Lee Construction Co. v. Tsang Ching Hing and Others 1966 H.K.L.R 868. There Scholes J. said-

"Dependence in a case like this can only be inferred from a consideration of (a) the living expenses of the alleged dependant, (b) the extent of the assistance received by the alleged dependant from the workman and (c) the income of the alleged dependant from other sources". (emphasis supplied)

There however the Court was considering dependence as between a son, who claimed to be adopted, and his parents the deceased's brother and sister-in-law, funds having been provided by the deceased before his death for all three relatives. The evidence here while it could have been more complete was very different. The children were living at the time of the accident with their father, the deceased. He certainly paid the baby sitter and at least, one meal. He presumably paid the rent and other outgoings of the family home. There was no evidence of contribution by the Applicant before the separation and she said she did not see the deceased again it was a perfectly reasonable inference that there was also none after the separation.

14. We do not see that the judge was in any way at fault in coding to the conclusion that, on the evidence before him, both the children were wholly dependent on the deceased at the time of his death.

15. For those reasons the appeal is dismissed. The Respondent/Applicant is to have her costs. The Respondent s own costs to be taxed in accordance with the Legal Aid Regulations.