CHOW SHU KI v. OSRAM PROSPERITY CO. LTD.

DCEC 1059/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Employees' Compensation Case No. 1059 of 2000

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Judgment

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Issues

1. The applicant is the widow of a sales manager who died from a serious head injury sustained while on a bus trip one evening after leaving his office. While boarding the bus, the deceased and one Mr. Mui had a dispute accusing each other of jumping the queue. The dispute resumed and got worse in the bus. At one stage the deceased grabbed the tie of Mr. Mui apparently to challenge or to intimidate him. Mr. Mui resisted and somehow managed to cause the deceased to release his tie. At that moment they were near the exit door and, unfortunately, it was a crowded bus and people were just alighting. The deceased were shoved and pushed by the current of people alighting the bus. As a result he fell off the bus through the open exit door and injured his head seriously and soon died from the injury.

2. The quantum of compensation is not in dispute. It is common ground that the statutory maximum should be awarded should liability be established subject to credit being given for pre-trial payments. I am also indebted to both counsels for their careful analysis of the evidence and relevant law, and for their successful joint effort in making the most efficient use of trial time. The case boiled down to two issues. The first issue is whether the deceased was in the course of employment. The second issue is whether the accident arose out of the employment if the deceased was in the course of employment.

In the Course of Employment

3. There is no direct evidence that the deceased was on its way to meet his client. The applicant relied on two main pieces of indirect evidence and the surrounding circumstances. Firstly, she rang the deceased earlier on the same day at about and was told that he would visit his client in Kowloon later, presumably, after he finished his work at the office. Secondly, the respondent made certain admissions in Form 2 reporting the accident and in a letter to the Labour Department confirming that the deceased was at the time in the course of employment.

4. The applicant was cross-examined on her previous statements to the police and the adjuster. The alleged discrepancies relating the whether she was with her child when she went home and the time she arrived home that day seemed more apparent than real. I find she was an honest witness. Whether she was with the child when she went home did not appear to her material at the time and it is nothing suspicious that she omitted mentioning the child when giving those statements. Whether she went home at 5 p.m. or about 5:30 p.m. is not material. If she was wrong in her statements or in giving evidence about the time, it was just an honest mistake about estimation of time. I accept her evidence that she rang her husband that day and was told he would be visiting his client later and the child was with her when she rang the husband.

5. The admissions made by the respondent were explained by the witnesses for the respondent. I can understand that employers being under a statutory duty to report an industrial accident as soon as possible sometimes would report the accident without having made a detailed and proper inquiry whether the injured employee was in the course of employment. In the particular circumstances of this case it would not be fair or safe to place any weight on admission in Form 2 in so far as it might amount to admission that the deceased was in the course of employment.

6. However in the letter to the Labour Department, the joint authors of the letter, the respondent's general manager and financial controller, stated they were sure that the deceased was on its way to visit customers. They alleged that as a matter of hindsight the choice of words "sure" was unfortunate. It is not alleged that it was a spelling error or a mistake. The financial controller might not be the person who might have known the daily routine of the deceased. However the general manager was familiar or at least had a general idea of the duties and routines of the deceased who was under his supervision. The general manager explained that he was not sure now and should not have been sure then because he could not verify from the deceased and not any of the customers had complained about the deceased missing an appointment. Looking at the nature of the duty of the deceased he might have visited customers without making any appointment. Even if the deceased had missed an appointment, the appointment might have requested by him for his own business purpose. For this reason or for other various reasons it is not necessary in every case the customer would bother to complain about a missing appointment. Indeed this was conceded by the general manager. I can accept that the general manager and the financial controller of the respondent was not absolutely sure that the deceased was going to visit customers that evening in the sense that they did not know which particular customer or the specific purpose for that visit. However it was definitely the belief of the general manager that the deceased was visiting customers. This belief is an informed one in view of the fact that he was the supervisor of the deceased and was familiar with his duties. This factor should be taken into account in assessing the weight to be attached to the admission made in the letter.

7. The deceased was on a route 103 bus. Definitely he was not going home which was in Whampoa Garden. The bus did not go that direction. His office was within walking distance of Wanchai Ferry pier. If he wanted to go home it would have been convenient to take the ferry to Hung Hom and then walked home. This he usually did as said by his widow whose evidence I accept. The respondent suggested that he was on the way to pick up his son at the home of his mother-in-law. I accept the evidence of the applicant, his widow, the son was with her in Whampoa Garden. The probability that the deceased was going to visit his mother-in-law is slim.

8. The same bus serves the locations of a number of respondent's customers. The question is whether the deceased was on his way to visit anyone of these customers. The widow gave evidence that she believed he must have been. She provided a profile of the life of the deceased to prove her point. However meeting a friend or attending some private matters before going home would not be inconsistent with his private life as portrayed by the widow. In any event it is not uncommon that a wife might not have known all the minute details of the private life of her husband. The widow's evidence in regard of the deceased life style does not assist me in any way.

9. There is another factor in favour of the applicant. Not only that I have found that the general manager when writing the letter to the Labour Department had an informed belief that the deceased was on his way to visit customers, I also find that nothing transpired since then should have changed his belief and he must still have held that belief at the time of trial though he was not sure because of lack of verification.

10. When all the above factors were taken into consideration, I draw the conclusion that it is more likely than not the deceased was on his way to see one of the customers.

Arising Out Of Employment

11. Mr. Yip, counsel for the respondent argued that the deceased was the author of his own misfortune. In indeed he jumped the queue and behaved aggressively towards Mr. Mui. Therefore Mr. Yip argued that the deceased's misbehaviour amount to misconduct which would take him out of the course of employment or that the accident did not arise out of employment. I do not think the manner he boarded the bus is relevant. Once he boarded the bus he was in the course of employment. That he behaved in a bad manner towards a passenger on the same bus is only relevant if such misbehaviour caused the accident. If Mr. Mui had pushed him off the bus, the respondent would have had a much stronger case. No doubt Mr. Mui was at one stage under suspicion to have done exactly that. However there was no such evidence. The evidence is that the deceased was shoved and pushed by the current of alighting passengers before he fell off the bus. Taking the global view of the matter I find that the accident was caused by the crowded condition of the bus and the current of alighting passengers. In any event the presumption that the accident arose from the employment has not been rebutted.

12. In the premises I give judgment for the applicant and make the award of the statutory maximum subject to credit being given to the respondent for the pre-trial payments and interest. I also make an order nisi for costs in favour of the applicant with certificate for counsel to be taxed if not agreed.