CHAN HO v. 999 H.K. PETROLEUM CO LTD

DCEC 481/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 481 OF 2002

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JUDGMENT

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1. The deceased Tam Yun Shing was an employee of the Respondent working on the oil barges belonging to the Respondent. On the night of 28th September 2001, while on board the oil barge Fung Yau No. 1 at Sha Chau, the deceased was killed by one Chung Kei-tung who had come onto the barge earlier to purchase diesel.

2. The Respondent denied the deceased was killed in the course of his employment or that the incident arose out of his employment.

3. The parties admitted the following facts :

(a) The deceased Mr. Tam Yun Shing was an employee of the Respondent at all material times.

(b) The deceased sustained fatal injuries and died on 29th September 2001.

Issues in dispute

4. The dispute between the parties is whether the deceased had sustained fatal injuries by accident arising out of and in the course of the employment.

5. S.5 of the Employees' Compensation Ordinance Cap. 282 provides that :

"5. Employer's liability for compensation for death or incapacity resulting from accident

(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."

The incident

6. The deceased was employed since 30th August 2000 to work as a barge engineer on an oil barge that sold industrial diesel and other petroleum products to customers at sea. His duties were to repair and maintain the barge while on duty onboard the barge. He would work on a 48 hours shift on board the barge after which he would break for 48 hours on shore. He was paid $11,000 per month plus daily overtime allowance, labour service commission for diesel sold and year-end double pay.

7. On 27th September 2001, at about 11:30 a.m. the deceased and a co-worker Leung Kam Tai boarded the oil barge 'Fung Yau No. 1' in Hong Kong island. They were joined by another co-worker Mr. Wan Man Yau at 1 p.m. the same day. At the instruction of their supervisor Mr. Pang they moored the barge in the waters between Sha Chau and Chek Lap Kok Airport.

8. At around 9 p.m. on 28 September 2001,Mr. Chung Kei Tung, a mainlander, came up to Fung Yau No. 1 from his sampan and purchased 10 litres of diesel. Mr. Chung had a short conversation with Mr. Leung who recognised Chung as a former employee on a mainland boat to which he used to supply diesel. Mr. Chung left the oil barge at 9:40 p.m.

9. Mr. Chung returned to the barge at about 11 p.m. and asked Mr. Leung if he could stay on the oil barge 'Fung Yau No. 1' for the night. Mr. Leung agreed. They chatted while Mr. Leung did some fishing at the stern. At about 1:45 a.m., Mr. Leung took a shower and returned to his cabin in the upper deck. Mr. Chung went up to the upper deck, but he was told by Mr Leung that for reasons of security he should stay below and remain at the stern.

10. Mr. Chung, who gave evidence at the hearing, claimed he went to the deceased's cabin intending to sleep at the berth next to the deceased. The deceased refused his request. Chung returned later with two knives, intending to scare the deceased, fought with him, fatally injured him and the deceased died as a result of the injuries.

Findings

11. The issue in dispute is whether the deceased sustained fatal injuries in the course of his employment and whether the incident leading to his death arose out of his employment under S.5 of the Ordinance.

12. Mr. Lim, counsel for the Respondent, submitted that the deceased was not in the course of employment when he sustained fatal injuries. He relied on the evidence Mr. Chung Kei-tung to rebut the presumption under S.5(4) of the Ordinance.

13. S.5(3) & (4) of the Ordinance states that :

"(3) In any proceedings under this Ordinance where it is proved that the injury to an employee is attributable to the serious and wilful misconduct of that employee, or that an injury by accident arising out of and in the course of his employment is deliberately aggravated by the employee, any compensation claimed in respect of that injury shall be disallowed; except that where the injury results in death or serious incapacity, the Court on consideration of all the circumstances may award the compensation provided by this Ordinance or such part thereof as it shall think fit.

(4) 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;"

14. Mr. Lim further relied on the case of Yue Sang v. International Limited Shipping Agency Ltd. [1992] 1 HKC 542 where two seamen were stabbed to death by a fellow seaman while serving on board a ship of their employer. His Honour Judge P. Cheung (as he then was) held that the two seamen had quarrelled over the question of martial arts which was a matter unconnected with employment. Consequently, he held the death did not arise out of or in the course of employment.

In the Course of Employment

15. Mr. Lam, counsel for the Applicant, on the other hand submitted that the nature of the deceased's employment was a straight 48 hours shift followed by 48 hours rest, whether he was sleeping or taking a rest while on duty, he was in the course of employment, therefore, his death arose out of his employment. He relied on the English Court of Appeal case of London and North Eastern Railway Co. v. Brentnall [1933] A.C. 489 where the train engine driver was employed to drive a train from Woodford Halse to Sheffield and back. He was obliged to take a rest at a hostel after arrival in Sheffield until the train's departure 10 hours later. He slipped and injured himself at the hostel. Lord Buckmaster held that he was in the course of his employment though the accident did not arise out of his employment for "it was part of his employment that he should go to this place in order that he might obtain adequate rest between his two journeys."

16. The London and Northern Railway Co. case was applied in the Hong Kong Court of Appeal case of Ma Kit Ching Veronica v. A.G. [1983] 2 HKC 17 where an ICAC officer died in a guest house in Edingburgh while under going overseas training arranged by the ICAC. The Court of Appeal dismissed the appeal by the claimant because the deceased had chosen to stay in accommodations arranged by himself rather than those booked by his employer.

17. It is Mr. Lam's submission that the deceased in the present case was required to be on 48 hours duty and to sleep onboard the oil barge while on duty. He further pointed out that in the Form 2 the Respondent admitted that the accident had taken place in the course of the deceased's employment. The deceased and his colleagues were required to work 48 continuous hours onboard the oil barge and to attend to customers and repair and maintain the barge during those hours. Therefore, even if they were resting or sleeping they would still be in the course of employment.

18. I was also referred to the Hong Kong Court of Appeal case of Lam Ming and Ors. v. Yau On Construction Co. [1981] HKLR 646 where the construction site worker was killed in a boat accident when travelling to lunch in a boat provided by the employer. Silke J.A. (as he then was) held on p. 650 E-I:

"The test was held to be : whether the injury had been suffered in the actual course of the work which the police officer was employed to do or by reason of some event "incidental" to that work but not whether the injury had been suffered whilst doing something "reasonably incidental" to the employment. The court felt latter phrase was a judicial gloss on the wording of that section of the National Insurance (Industrial Injuries) Act 1965.

The statute is different and, while the facts are also different from those here, the words of Roskill, L.J. (as he then was) at p.427 are apposite :

"The decisions on the phrase in the course of his employment are legion and we were helpfully referred to a number of them. I propose in this part of the case to refer to only two, both decisions of the House of Lords. Charles R. Davidson & Co. v. M'Robb to which I have already referred and Armstrong, Whitworth & Co. v. Redford. Each was a majority decision four to one in the former and three to two in the latter. 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 the work which the workman is employed to do and what is incident to it; and absence on leave for the workman's own purposes is an interruption of the employment'."

The quotation is from the headnote to M's Robb [1918] A.C. 304 of which Lord Finlay said in Redford [1920] A.C. 757:

"It is therefore now settle that for the purpose of the Act the accident must be in the course of the work or what is incident to it."

Roskill, L.J. went on :

"The crucial effect of the decisions is for present purposes that for an injury to qualify for industrial benefit that injury must have been suffered in the course of the work which the injured person is employed to do or be incidental to that work. It is not enough that the injury should have been suffered during the currency of the employee's contract of service. Nor so far as the adjective 'incidental' is concerned is it sufficient for the injury to have suffered in some manner incidental to that contract of service. If the injury is not suffered in the actual course of the work which the employee is engaged to do it must have at least been suffered by reason of some event incidental to that work."

Silke J.A. further held on p.650 B-E :

"We are fortified in coming to our conclusion by the speech of Lord Dunedin in D'Robb at p. 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 '(he had in a passage immediately prior to this used the example of a domestic 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 servants, 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."

The incidental to the work test is, with respect to Mr. Yeung's strongly argued contractual duty test, we think, the correct one in the circumstances here and the use of the boat comes within the ambit of the test."

19. The deceased in the present case like his co-workers were on 48 hours duty though they were allowed to sleep during the hours on duty. On the basis of the Court of Appeal's judgment in Lam Ming, it is clear that the deceased was killed in the course of his employment for his sleeping on board the barge was incidental to his employment.

Incident Arose out of Employment

20. Under S.5(4)(a) of the Ordinance provided that the accident arose out of employment shall be deemed in the absence of evidence to the contrary.

21. The Respondent by adducing evidence from Mr. Chung, who caused the deceased's death, attempted to rebut the presumption. There was a suggestion that the deceased was killed because of the grudge between the deceased and Mr. Chung.

22. According to the evidence of Mr. Chung and the witness statements of Mr. Leung, the barge master, the deceased was not known to Mr. Chung. Mr. Chung claimed in court his request to sleep in the deceased's cabin was rejected by the deceased, he returned to ask for some bedding, that request was also rejected. He then went to his sampan where he took two knives and returned to the deceased's cabin. They fought and the deceased was killed.

23. The evidence of Mr. Leung was that he came to be acquainted with Mr. Chung in his previous employment as a sailor on a mainland boat which used to purchased diesel from Mr. Leung's former employer two years before. Mr. Leung recognised him after Mr. Chung came up that evening to buy diesel. It was also Mr. Leung's evidence that he did not give Mr. Chung permission to sleep inside the cabins. He had agreed only to Mr. Chung staying outside on deck at the stern of the barge. Chung clearly was only an acquaintance of Mr. Leung.

24. I find Mr. Chung's evidence unreliable for he was obviously trying to minimise his role in the incident. As the dead cannot speak, we have only circumstantial evidence as to what had happened. It is obvious from the evidence of the blood stains and from the admission of Mr.Chung that the attack on the deceased had begun in the deceased's cabin which ended up in the kitchen area. Mr. Leung witnessed Mr. Chung stabbing the deceased with a folded knife. The post mortem report revealed the deceased had sustained 25 cut and abrasive wounds.

25. I accept the evidence of Mr. Leung that Mr. Chung was told to leave the upper deck and to go to the stern. Clearly, Mr. Chung was not given permission to enter anyone of the cabins inside the barge, particularly when one of the cabins had cash of over $10,000 from the sales of diesel earlier that evening. According to the evidence of Mr. Leung, Mr. Chung had gone to the deceased's cabin very shortly after he was told to stay at the stern.

26. Mr. Chung claimed he was only trying to get a blanket from the deceased's cabin. On the other hand, he also claimed he had wanted to use the other berth which the deceased told him belonged to another member of staff. It was obvious from Mr Leung's evidence that Mr Chung knew Mr Leung did not give him any permission to sleep inside the barge. Why then should he insist on going into the deceased's cabin taking two knives with him? His motive is certainly suspicious. It is likely that the deceased, under the circumstances, was only doing his job to get rid of this intruder.

27. For the aforesaid reasons, I reject the evidence of Mr. Chung. I am not satisfied the Defendant had successfully rebutted the presumption. On a balance of probability, the deceased was defending himself when Mr. Chung intruded into his cabin and he was killed by Mr. Chung not because there was a personal grudge between them.

28. Applying the test in the findings of the Court of Appeal in Lam Ming's case to the present case, the deceased was killed in the course of his employment and the accident had arisen out of his employment for the event was incidental to his work.

Quantum

29. The parties had agreed the evidence on the monthly salary and the quantum of damages. The facts admitted are as follows :

(c) The deceased's average monthly salary prior to his death was a sum of HK$14,433.00.

(d) The deceased was 52 years old when he passed away. According to the provisions of section 6(1)(b) of the Employees' Compensation Ordinance, Cap. 282, the compensation payable to the members of the deceased's family is a sum of 60 months' earnings, namely a sum of HK$14,433.00 x 60 months = HK$865,980.00.

(e) Pursuant to section 6(5) of the Ordinance, the members of the deceased's family are to receive reimbursement of the reasonable expenses of funeral, which is a sum of HK$35,000.00.

(f) The Applicant and the members of the deceased's family are entitled to receive from the Respondent employees' compensation under sections 5 and 6 of the Ordinance and the total amount of award is a sum of HK$865,980.00 + HK$35,000.00 = HK$900,980.00.

(g) The Respondent agrees to pay interest on the said award at half of the judgment rate from the date of accident on 29th September 2001 to the date of judgment herein and thereafter at full judgment rate until the date of payment.

Conclusion

30. The Respondent shall pay to the Applicant :

S.6(1)(b)	$(14,433 x 60)	$865,980.00
S.6(5)	funeral expenses	$35,000.00
Total		$900,980.00

31. Interests on the above agreed sum at half judgment rate from date of accident on 29th September 2001 to date of judgment and thereafter at full judgment rate until full payment.

32. Costs nisi - Costs follow the event. The Respondent shall pay the Applicant's costs to be taxed unless agreed with certificate for counsel.