TREVOR STEPHEN HILL v. CIRCUS ENTERTAINMENT MANAGEMNT LTD

Employees' compensation - Jurisdiction - Contract entered locally for performance abroad - Accident to employee as a circus artist arose out of and in the course of employment in another country. Held: In the absence of provision to include extra-territorial scope to the application of Employees' Compensation Ordinance, Cap. 282 (apart from Sections 29 and 30 thereof), to give rise to the liability to pay compensation under the Ordinance the work under the contract of employment must be performed within the jurisdiction. Following Applicant's inability to meet this oriterion, the application must fail.

                (a) "Territorial and Extra-Territorial Operation of New Zealand Workers' Compensation Act 1956" (Macdonald's Workers' Compensation, 4th edition (1968) Chapter 3 p.11) considered (b) "Patrick Keegan v. Julia Dawson (1934) Supreme Court of Ireland distinguished and (c) "Tomalin v. S. Pearson & Son Ltd" (1906) C.A. 61, which was followed by "Krzus v. Crow's Nest Pass Coal Co. Ltd" (1912) 2 K.B. 299 and "Mynott & Others v. Barnard" (1939) High Court of Australia p.68, applied.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

EMPLOYEE'S COMPENSATION CASE NO. 67 OF 1985

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IN THE MATTER OF AN APPLICATION BETWEEN :

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DECISION

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1. The Applicant brought this action under the Employees Compensation Ordinance, Cap. 282 (the Ordinance) for compensation from Respondent, his employer, in respect of injuries that he claimed to have arisen out of and in the course of his employment.

2. At the beginning of the hearing Respondent's counsel raised a preliminary point of law as to whether the Ordinance should apply to an accident which occurred to Applicant when he was on duty abroad.

3. For the purpose of this issue facts are briefly as follows. Applicant was an Artiste and Respondent was a locally incorporated company. On 4th March 1983 they entered into an agreement in Hong Kong whereby Respondent, as its name implies, hired Applicant as a Ring Hand and General Assistant for performance in Singapore or elsewhere for the period from 29th April 1983 to 11th September 1983. The contract makes provision, among other things, for Applicant's accommodation in countries of work, air travel from Hong Kong to and from those places and payment of salary. In pursuance of that agreement Applicant arrived in Singapore on 14th April 1983 and later, when carrying out his principal function of an Aerial Rigger, fell from the roof of the circus and sustained serious injuries, including permanent quadriplegia or paralysis of the limbs.

4. It is the submission of Mr. Hingorani, Counsel for Respondent, that the tenor of Employees' Compensation Ordinance is directed at accidents occurring to employees while they are at work in Hong Kong and that the Ordinance therefore cannot apply to the present case. For her part, Miss Pinto, on Applicant's behalf, advances the argument that the Ordinance itself is not restrictive in its application and that this claim should come with its ambit. The question thus posed to the Court seems to be one concerned with statutory interpretation.

5. The Ordinance contains, inter alia, these matters:

6. This section appears on the face of it to lay down that compensation shall be paid by the employer to the employee if three elements are met: (i) that the employee was in the employment of the employer at the time of accident, (ii) that personal injury by accident occurred to the employee and (iii) that the accident arose out of and in the course of that employment.

7. Apart from the aforesaid Sections 29 and 30 concerning the right to enjoy the application of the Ordinance by persons who are injured while at work as ship's employees even outside Hong Kong, nowhere in the Ordinance is there an explicit definition of its territorial scope. By way of comparison the New Zealand Workers' Compensation Act 1956, as set out in Macdonald's Workers' Compensation, 4th Edition (1968) Wellington, at chapter 3, page 11 under the heading of "Territorial And Extra-territorial Operation Of The Act", says:

"The Act applies to all accidents happening in New Zealand, but, with certain exceptions, does not apply to accidents happening outside New Zealand (s. 7). An accident happens in New Zealand if it happens within the outer boundary (see infra) of the territorial waters of New Zealand. The fact that the plaintiff is a seaman employed on a ship other than a New Zealand ship as defined by the Act is immaterial if the accident happened within the territorial limits of New Zealand (Owens v. Shaw Savill Co. (1913) 15 G.L.R. 600). The fact that a right to claim compensation in respect of accidents happening in New Zealand is conferred by the laws of another country does not oust the jurisdiction of the Court to give recognition to a right conferred by the Act to claim compensation in New Zealand."

8. It can thus be seen that the New Zealand Workers' Compensation Act clearly defines its range and zealously reserves its jurisdiction to cover accidents happening within the boundaries of New Zealand, irrespective of the right of the partly claiming compensation conferred by another country.

9. As regards the extra-territorial application of the English Workmen's Compensation Act 1906 (the Act) the Irish case of "Patrick Keegan (Applicant) v. Julia Dawson (Respondent)" (1934) Supreme Court may serve as illustration. In that case the Respondent was a groom in the employment of the Appellant. The contract of employment was entered into in this country and both parties resided in this country, both at the time the contract was entered into and at the time when proceedings were instituted. In pursuance of his employment the Respondent took a horse to England and the accident, out of which the claim for compensation arose, happened there. The Circuit Judge made an award in favour of the Respondent, and the question for determination by this Court is whether he was entitled to do so.

10. It was held that a workman is entitled to claim compensation in the in the Irish Free State under the Workmen's Compensation Act, 1906, where both he and his employer are resident and domiciled in the Irish Free State and the contract of service was made, and the service was substantially to be performed in, the Irish Free State, although the accident in respect of which the claim arises occurred outside the territorial limits of the Irish Free State.

11. So held by the Supreme Court (Kennedy C.J., FitzGibbon and Murnaghan JJ.), reversing the High Court; Murnaghan J. limiting the right to accidents occurring within the area of the former United Kindgom, holding that that was the scope of the Act prior to the coming into operation of the Constitution of the Irish Free State, and Art. 73 of the Constitution, which continued the Act in force in the Irish Free State, did not alter its scope.

12. In Keegan's case the view was taken that as a State was able to impose on its own subjects who were within its own jurisdiction obligation in relation to their employees, wherever they might be, the statute should prima facie be read as in fact imposing such an obligation. No particular reason is given for the acceptance of this view except that there is nothing in the comity of nations to prevent its acceptance. FitzGibbon J. says that the statute should be interpreted upon the basis that "the limitation, and the only limitation is to the subject of the legislature concerned - all over the world.

13. Reagan's case appears to have limited application whilse "Tomalin v. S. Pearson & Son, Limited" (1906) C.A. 61 has been referred to in decisions of Commonwealth Courts, such as those in Australia and New Zealand. In Tomalin's case, Cozens-Hardy M.R. says:

"This appeal raises a curious and important question. The respondents are a well-known firm of contractors, and they are a British company. They entered into a contract for the erection of certain works at Malta, and for the purpose of that contract they engaged a workman by contract in England and he went out to Malta; he did his work there for some considerable time, and in the course of that work he met with an accident which proved fatal. The claim is made by his widow. In my opinion the present claimant, who seeks to enforce her statutory right in respect of an accident that occurred in Malta, has not any right to claim the award which she is claiming. In my opinion the appeal must be allowed."

14. Fletcher Moulton, L.J. and Farwell, L.J., the two other judges of Tomalin's case, shared the same opinion as the Master of the Rolls.

15. The decision of Tomalin's was adopted in "Mynott & Others v. Barnard" (1939) High Court of Australia p. 68, the headnote of which reads:

"A contract of employment was entered into in Victoria between a worker and a building contractor, who were both domiciled and at all material times resident in Victoria, whereby the worker was engaged to work at a building in course of erection at a neighbouring border town in New South Wales. It was found to be the intention of the parties that Victoria law should govern the contract of service.

 

Held that, notwithstanding these facts, the dependants of the worker were not entitled to recover compensation under the Workers' Compensation Act 1928 (Vict.) in respect of his death in Victoria as a result of personal injuries by accident sustained by him while working at the building in New South Wales."

 

16. In his judgment in Mynott's case, Dixon, J. said at P. 91:

"Of the many cases in the United States upon this subject which I have read, Cameron v. Ellis Construction Co." (1930) 252 N.Y. 394 contains, I think, the most satisfactory reasoning. It is reasoning which is in conformity with the statement by Farwell, L.J. in Tomalin's case and would produce the same conclusions as those of the English Court of Appeal ..... Nothing in the statute suggests that the State of New York has attempted to stretch forth its arm to draw within the scope of its own regulations the relations of the employer and employee in work conducted beyond its borders".

 

17. Tomalin's case has also been followed in (1) "Shwartz v. India Rubber Gutta Percha & Telegraph Works Co. Ltd." (1909) 2 K.B. 61 and the Privy Council's case of "Krzus v. Crow's Nest Pass Coal Co. Ltd. (1912) 2 K.B. 299.

18. It can be said that the Ordinance does not concern itself with the terms of any contract of employment but is directed towards providing compensation for injury or death resulting from accidents to employed persons. Although in Hong Kong the Court must, where appropriate, have regard to Section 19 of the Interpretation & General Clauses Ordinance, Cap. 1 which states that "An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.", I nevertheless hold that, without known decisions reversing it, the general principle emerging from Tomalin's that "if the employment is putside the jurisdiction then the Court must find that it is not covered by the Act unless the employment was that of a seaman within the definition of Section 7 of the Act (Workmen's Compensation Act 1906)" still remains good law. This principle, in my view, applies to Hong Kong for which Section 29 and 30 of the Ordinance stand in lieu of Section 7 of the Act.

19. As far as interpretation of the Ordinance is concerned, I invoke the question in Tomalin's - by Cozens-Hardy, M.R. from Maxwell on the Interpretation of Statutes "In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate beyond the territorial limits of the United Kingdom." In the Hong Kong scenario, the words "Legislative Council and Hong Kong" should replace Parliament and United Kingdom respectively. Thus, in my opinion, apart from the provision of Sections 29 and 30, the Ordinance cannot apply universally all over the world, because workers' compensation is a creation of statute and not a contractual obligation or a kind of personal law that may be assumed to follow the person wherever he may be. Furthermore, in my view support to the proposition that any extention of territorial jurisdiction can only be obtained by legislative enactment is to be found in e.g., Contracts For Employment Outside Hong Kong Ordinance, Cap. 78. This Ordinance, as its title suggests, applies to contracts of employment entered into in Hong Kong whereby, with the exception of a member of the crews of a ship or aircraft and persons proceeding to the United Kingdom for employment there, a person in this territory enters into the service of another person as a manual worker, where the contract is to be performed whether, wholly or partially, outside Hong Kong (Section 4). Another example in point is in Workers' Compensation Practice in New South Wales by Boulter. In that book the author cites the Australian Workers' Compensation Act 1926, Section 7 sub-section (1A):

"Where an employer has a place of employment in New South Wales or is for the time being present in New South Wales and there employs a worker, and such worker whilst outside New South Wales receives an injury under circumstances which had the injury been received in New South Wales would entitle him to compensation in accordance with this Act, such worker (and in the case of the death of the worker, his dependants) shall receive compensation in accordance Act, and the provisions of this Act shall apply, mutatis mutandis, to and in respect of such injury".

 

20. That sub-section fell for consideration in "Coppins v. Helmers" (1961) 78 W.N. 1601 in which a worker was engaged in New South Wales to undertake a job in Queensland, but did perform a small amount of preliminary work in New South Wales. He sustained injury in Queensland. The Full Court held that he was entitled to compensation.

21. To sum up, I say that for the usual criterion for liability to pay compensation under the Ordinance to arise, the work under the contract of employment must be performed within the jurisdiction and that, if the legislature had intended that an accident occurring outside the territorial limits of Hong Kong should give rise to compensation under the Ordinance, it would have so provided in clear terms, e.g., in Section 29 and 30 of the Ordinance and Contracts for Employment Outside Hong Kong Ordinance. In the present case I hold the view that since the contract stipulated that its performance was to take place in other countries and the accident in fact occurred abroad, Applicant's claim consequently does not fall within the ambit of the Ordinance. In the event I conclude that the present action is outside jurisdiction and therefore cannot be entertained.