FONG CHRISTINA v. CLEVER VIEW GROUP LTD

DCEC 1239/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1239 OF 2009

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IN THE MATTER OF AN APPLICATION BETWEEN:-

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JUDGMENT

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Introduction

1.  This is the application by the Applicant under Employees’ Compensation Ordinance, Cap 282, Laws of Hong Kong (“the Ordinance”).

2.  It is not disputed that the Applicant was injured in a traffic accident on 19 October 2008.

3.  Applicant contends that the accident arose out of and in the course of her employment with the Respondent.  The same is disputed.

4.  Parties agree that the compensation, if payable, net advance payment of $44,942.90 made, is $756,720.10.

5.  At the material times, the Applicant was employed by the Respondent as a shipping managress.  Both agree that the Hong Kong office was the Applicant’s usual place of work and that under the employment contract, the Applicant was required to work 5½ days a week.

Applicant’s case

6.  Applicant says on the date of accident, a Sunday, she left home and was on foot crossing Sheung Kok Road when she was hit by a car.  She says she was on her way to take public transport to go to a lunch appointment in Mainland arranged by her boss and then to the China Factory of the Respondent (“China Factory”) when she met the accident.

7.  Applicant says about two days before the accident, she was instructed by her superior Wong Tsang Sang (“Wong”) and/or his wife Madam Chan Lok Yan, Ada (“Chan”), both director and shareholder of the Respondent Company to attend, on the date of accident, the China Factory. 

8.  Applicant says that Wong had also arranged for her a lunch appointment to meet the staff of a new Customs Declarations Company on the same day.

9.  In the Answer filed, Respondent denies the above and says that the Applicant was then only on her way to work in the Hong Kong office at the time of accident. Respondent further says the China Factory was closed on weekends.

10.  In order to rebut the Respondent’s saying that the China Factory was closed during weekends, the Applicant exhibited certain emails exchanged between the colleagues in the China Factory and the Applicant/ other colleagues in Respondent’s Hong Kong office during weekends.

11.  Applicant also produced to Court copy of the Form 2 completed by Chan of the Respondent on 30 October 2008 and sent to the Labour Department.  The same stated that the accident occurred when the Applicant was on her way to work in Mainland.

12.  It is noted by this Court that the Respondent did subsequently on two occasions seek to amend the Form 2, the first time to amend the pre-accident income of the Applicant and later, to amend the same to say that the Applicant was only her way to work in Hong Kong office instead of on her way to work in the China Factory.

13.  According to the Applicant, she had, prior to the date of accident, been to the China Factory both during weekdays and weekends.  Each time, she would leave her home in the morning at around 9:00 a.m. and proceed to take transport to go to the Mainland.  She said the Respondent did not prescribe the mode of transport and so she had the discretion to decide the same.  Applicant says she would, depending on the traffic conditions, decide if she would take a train from Lowu or a coach from Huaggang to get to the China Factory.  She said the Respondent would later reimburse her all travelling expenses for the trip. 

14.  Applicant further said that she would usually arrive the China Factory between noon and 1 p.m. as the trip from her home to the China Factory is about 2.5 hours each way.  She further testified that the trip to Mainland was usually a day trip.  Applicant said if she took the trip during weekends or public holidays, the Respondent would give her in return a day’s leave but there would not be any extra pay.

15.  Applicant says she had also been to the China Factory during weekdays before the accident.

16.  It is important to note that the usual working hours of the Applicant under the employment contract between the Applicant and the Respondent dated 1 September 2005 is from 9:30 a.m. to 6 p.m. during weekdays and from 9:30 a.m. to 1 p.m. during Saturdays.

Respondent’s case

17.  Although the Respondent did in their Answer contest that the Applicant met the accident out of and in the course of employment with the Respondent, they did not adduce any evidence from witness at trial.

Analysis

18.  Having heard the Applicant in Court, I find her a reliable and credible witness.  Her evidence is totally unshaken in cross examination.  I have no hesitation to find that she met the accident whilst she was on her way to the lunch appointment and the China Factory as instructed by the Respondent.

19.  In order for her to succeed in the present application, the Applicant has to prove:

(a) The applicant suffered an accident; and

(b) The accident arose out and in the course of the Applicant’s employment with the Respondent.

20.  Here, there is no dispute that the Applicant had met the accident on 19 October 2008.   The only issue in dispute is therefore whether, on facts found by this Court, the accident did arise out of and in course of employment with the Respondent.

Did the accident arise out of and in course of employment?

21.  Both parties agree that none of the authorities purports to lay down any conclusive test on the interpretation of “arising out of and in course of employment”. The court should therefore have regard to every relevant factors in the circumstances of each case, which points towards or away from a finding that the Applicant was in the course of her employment.

22.  Mr. Wong Chi Kwong (“Mr. Wong”), counsel for the Applicant in his opening submission appears to rely on section 5(4)(g) of the Ordinance. 

23.  The same reads:-

“an accident to an employee shall be deemed to arise out of and in the course of his employment if it happens to the employee while he is, with the express or implied permission of his employer, travelling by any means of transport for the purposes of and in connection with his employment between Hong Kong and any place outside Hong Kong or between any place outside Hong Kong and any other such place.” (emphasis added)

24.  The Applicant was walking at the time she met the accident.  “Walking” clearly in my view is not a means of transport.

25.  The facts of this case therefore cannot fall within the sub sub section as the Applicant then has not yet boarded any means of transport.  She cannot therefore be said to be “travelling by any means of transport”.

26.  Mr. Wong also relies on section 5(1) of the Ordinance which provides that:-

“…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.”

27.  It is submitted by Mr. Wong that:-

(a) the Applicant would not go to the China Factory on the day, a Sunday had she not been instructed by her boss as she would have stayed at home sleeping and not met the accident.

(b) 1-2 days before, Wong and/or Chan instructed the Applicant to go to at the China Factory on the date of accident;

(c) the Applicant had an appointment (arranged by Wong) in Mainland to meet staff of a new Customs Declarations Company for lunch that day and that in the afternoon, she had to attend the China Factory to assist delivery of goods;

(d) the Applicant, as in the past, would select the mode of transport in travelling to and from the China Factory. She would also be reimbursed by the Respondent all travelling expenses for the trip;

(e) at about 9:30 a.m. on the date of accident, the Applicant left her residence at Kwai Chung Estate and was walking towards the bus and minbus stop heading for Tsuen Wan direction at Sheung Kok Street intending to take a bus and was en route to the lunch appointment and the China Factory, when she was knocked by a private car.

28.  Mr. Wong submits that the accident did arise out of and in course of employment.

29.  Mr. Paul Lam (“Mr. Lam”), Counsel for the Respondent argues that if Applicant cannot succeed on section 5(4)(g), which is an artificial extension of the ordinary meaning of “in the course of employment” introduced to relax the stricture imposed by the decided cases, it will be most extraordinary if Applicant can succeed in arguing that her case falls within the ordinary meaning of “in the course of employment”, which is narrower in scope than the statutory artificial extension.  I have reservation to accept this submission.

30.  In my view, the section 5(4)(g) merely put at rest argument that purports to say that the worker is not in the course of employment in situation when the employee was travelling by any means of transport in relation to his employment  between Hong Kong and any place outside Hong Kong or between any place outside Hong Kong and any other such place.

31.  Mr. Lam quoted speech of Lord Atkin in Blee v London & North Eastern Railway Company [1938] AC 126 at P. 130:-

“There can be no question that had the workman been going to his ordinary work in the morning he would not have been entitled to compensation for injury suffered from street risks incurred in transit. His time in such a case is his own; he arrives at the scene of his labours as he pleases; and though it is his duty to present himself at the appointed time yet his "employment" does not in ordinary circumstances begin for the purposes of the Act until he reaches the place where he is employed.” (emphasis added)

32.  He agrees that the House of Lords recognized that there are exceptions. Firstly, there were jobs which required the employee to travel on the streets as part of his duties but he says the Applicant here was not engaged in a job of such nature.

33.  Secondly, Mr. Lam said the House of Lord also recognized that an employee may be acting in the course of his employment on his way to work if he was attending an emergency as instructed by his employer.  This is what happened in Blee.  He argues that the facts of the present case are of course materially different from those in Blee as the Applicant here was not instructed by Respondent to attend any emergency and no route or mode of transport as to how to reach the China Factory had been prescribed by Respondent.  The Applicant was also not bound to proceed with all possible speed by the shortest possible route to go thereas in the case of Blee.

34.  Both Mr. Lam for the Respondent and Mr. Wong for the Applicant referred this Court to the House of Lords case of Smith v Stages [1989] 1 AC 928.

35.  Lord Goff held at P. 936B that:-

“The fundamental principle is that an employee is acting in the course of his employment when he is doing what he is employed to do, to which it is sufficient for present purposes to add - or anything which is reasonably incidental to his employment.”

36.  At P. 936G he also held that:-

“We can begin with the simple proposition that, in ordinary circumstances, when a man is travelling to or from his place of work, he is not acting in the course of his employment.”

"If however a man is obliged by his employer to travel to work by means of transport provided by his employer, he may be held to be acting in the course of his employment when so doing.” (emphasis added)

37.  At P. 937B-D, he went on to hold that:-

“These are the normal cases. There are however circumstances in which, when a man is travelling to (or from) a place where he is doing a job for his employer, he will be held to be acting in the course of his employment. Some of these are listed by Lord Atkin in Blee v. London and North Eastern Railway Co.[1938] A.C. 126, 131-132. So if a man is employed to do jobs for his employer at various places during the day - such as a man who goes from door to door canvassing for business or distributes goods to customers, or who services equipment like washing machines or dishwashers - he will ordinarily be held to be acting in the course of his employment when travelling from one destination to another, and may also be held to do so when travelling from his home to his first destination and home again after his last. Again, it has been held that, in certain circumstances, a man who is called out from his home at night to deal with an emergency may be acting in the course of his employment when travelling from his home to his place of work to deal with the emergency: see Blee v. London and North Eastern Railway Co., above. There are many other cases.”

38.  Then, Lord Goff held that :-

“But how do we distinguish the cases in this category in which a man is acting in the course of his employment from those in which he is not? The answer is, I fear, that everything depends on the circumstances.”

39.  On the facts of that case, Lord Goff posed the following question at P. 938B:-

“Was Stages employed to travel to and from Pembroke?”

He answered the question in the affirmative at P. 938E-G:-

“I do not regard this case as an ordinary case of travelling to work. It would be more accurate to describe it as a case where an employee, who has for a short time to work for his employers at a different place of work some distance away from his usual place of work, has to move from his ordinary base to a temporary base (here lodgings in Pembroke) from which he will travel to work at the temporary place of work each day. For the purpose of moving base, a normal working day was set aside for Stages' journey, for which he was paid as for an eight hour day.

In addition to his day's pay he was given a travel allowance for his journey, and an allowance for his lodgings at his temporary base in Pembroke. In my opinion, in all the circumstances of the case, Stages was required by the employers to make this journey, so as to make himself available to do his work at the Pembroke Power Station, and it would be proper to describe him as having been employed to do so. The fact that he was not required by his employer to make the journey by any particular means, nor even required to make it on the particular working day made available to him, does not detract from the proposition that he was employed to make the journey.”

40.  Lord Lowry, who is the only other Law Lord who gave an independent judgment, considered the relevant authorities in detail.  One feature that he stressed is whether the employee was travelling in his own time and not in the employer’s time. 

41.  Lord Lowry attempted to lay down some general guidance at P. 955G-956A:-

“The paramount rule is that an employee travelling on the highway will be acting in the course of his employment if, and only if, he is at the material time going about his employer's business. One must not confuse the duty to turn up for one's work with the concept of already being "on duty" while travelling to it.(emphasis added; emphasis also added in the same passage cited in AC, P.29)

It is impossible to provide for every eventuality and foolish, without the benefit of argument, to make the attempt, but some prima facie propositions may be stated with reasonable confidence.(emphasis added)

1. An employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it isprovided by the employer, is not on duty and is not acting in the course of his employment, but, if he is obliged by his contract of service to use the employer's transport, he will normally,in the absence of an express condition to the contrary, be regarded as acting in the course of his employment while doing so.

2. Travelling in the employer's time between workplaces (one of which may be the regular workplace) or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces (as an inspector of gas meters might do), will be in the course of the employment.

3. Receipt of wages (though not receipt of a travelling allowance) will indicate that the employee is travelling in the employer's time and for his benefit and is acting in the course of his employment, and in such a case the fact that the employee may have discretion as to the mode and time of travelling will not take the journey out of the course of his employment.

4. An employee travelling in the employer's time from his ordinary residence to a workplace other than his regular workplace or in the course of a peripatetic occupation or to the scene of an emergency (such as a fire, an accident or a mechanical breakdown of plant) will be acting in the course of his employment.

5. A deviation from or interruption of a journey undertaken in the course of employment (unless the deviation or interruption is merely incidental to the journey) will for the time being (which may include an overnight interruption) take the employee out of the course of his employment.

6. Return journeys are to be treated on the same footing as outward journeys.”

“All the foregoing propositions are subject to any express arrangements between the employer and the employee or those representing his interests. They are not, I would add, intended to define the position of salaried employees, with regard to whom the touchstone of payment made in the employer’s time is not generally significant.”

42.  In the case here, according to the employment contract, Applicant was to start work in HK office from 9:30 a.m. to 6:30 p.m. during weekdays and likewise on Saturday from 9:30 a.m. to 1 p.m.  Respondent agrees that the terms of her employment contract did not deal specifically with the situation when she had to work in the China Factory.

43.  It is not disputed that the usual place of work of the Applicant is the Hong Kong office.

44.  Mr. Lam says that there is no evidence suggesting that there was any fixed working hours if Applicant was to work in China Factory.  He submits that there is no evidence that her employer required her to leave home at any specific time but it is not challenged that she usually arrived at the China Factory between 12 noon to 1 p.m.  He says it is wrong therefore for Applicant to say that the accident happened within applicable working hours as agreed between the parties.

45.  I take the view that if the usual working hours for the Applicant starts at 9:30 a.m. and if she reports for work at 12 noon in Hong Kong office, obviously the Respondent would have complained.  Why did the Respondent not complain in the present case when the Applicant arrived the China Factory only between 12 noon to 1 p.m.?

46.  It appears that when the Applicant went to China Factory, though she only arrived the China Factory at or after noon time, she was considered by the Respondent to be working already before she actually arrived the China Factory. The Respondent have set aside normal working hours for the Applicant to take the journey to the China Factory during this time, i.e. as from 9:30 a.m. till her arrival in the China Factory.  The Applicant was already “on duty” under the employment contract.

47.  Secondly, Mr. Lam argues that although Applicant’s evidence was that she left home at about 9:30 a.m. and it took about 5 minutes for her to walk to the minibus/bus stop at Sheung Kok Street where she met the accident, on a balance of probabilities, Applicant has not proved that the accident in fact happened at or after 9:30 a.m.

48.  I cannot for a moment agree.  I found her evidence totally unchallenged.

49.  Mr. Lam went on further to say that even if the accident happened after 9:30 a.m. and that this fell within the agreed working hours, this would not assist the Court in deciding whether Applicant was then “travelling in the employer’s time” and thus met the accident arising out of and in course of employment.  Mr. Lam says her case will only fall within Lord Lowry’s 4^th proposition if she can also prove that, at that time, she was “travelling in the employer’s time”.

50.  Mr. Lam further contends there is no evidence that the Applicant was paid anything extra in the nature of wages for the travelling time, in particular, the time when she was walking on foot from her residence to the place where she planned to board a means of transport on the date of the accident.  Since she had not yet boarded any means of transport, she could not yet be reimbursed for the trip.  He says further that the Applicant was merely reimbursed for her actual travelling expenses that in substance, she was given a travelling allowance.

51.  It follows that there is no evidence that she was “travelling in the employer’s time” at the time of the accident under Lord Lowry’s proposition No. 4.

52.  Mr. Lam said it is vital to appreciate that the Applicant was a salaried employee and she would receive exactly the same monthly salary and in respective of the  number of working days she worked in that month in Mainland.

53.  Mr. Lam also reminds this Court that Lord Lowry did not intend that his prima facie propositions should apply to a salaried employee like the Applicant here. 

54.  In any event, he says, quoting Lord Maugham in Blee and Lord Goff in Smith v Stages respectively that: “the fact that the payment of the workman was calculated from the time when he left home is not alone a sufficient reason for holding that his employment began at that time” and, more importantly, “any rule that payment at the relevant time is decisive would be very difficult to apply in the case of a salaried man”.

55.  Mr. Lam concluded that considering all relevant evidence, it cannot possibly be said that it was part of the Applicant’s work to walk on foot from her residence to the bus/minibus stop on the day of the accident or that she was employed to do so.  She was merely on her way to work.

56.  Lord Lowry has said clearly that the guidelines are not meant to give an exhaustive list of situations when the Applicant would be considered to be in the course of employment whilst travelling.  They are merely prima facie propositions.

57.  Though the Applicant in our present case was not paid anything extra for travelling to and from the lunch appointment in Mainland or the China Factory, she was reimbursed all travelling expenses for the whole trip not just the trip over the border.  Further, she was following instructions when she took this trip to meet the staff of the Customs Declarations Company as representative of the Respondent.  The Respondent had also set aside normal working hours for her to take the trip to the China Factory.

58.  Mr. Lam also referred this Court to the case of Check Chor Ching v. Wik Far East Ltd. [1991] HKDCLR 71 (DC); [1991] 2 HKLR 224 (CA) where it was said by District Judge P. Cheung (as he then was) that the employee was not acting in the course of her employment under the general provision of section 5(1).  At P. 75A-B, he held that:-

“This passage clearly shows that the Applicant could not be in her course of employment after she left the factory premises and while she was on San Yip Street which was a public road. The Applicant had finished her work and she was going to take the bus home. She was on the road as a member of the public and not as an employee of the Respondent.”

59.  Mr. Lam said similarly, in this case, the Applicant could not be in her course of employment while she was walking on Sheung Kok Street which was a public road.  She was merely on the road as a member of the public and not as an employee of Respondent.  The act of walking to the bus/minibus stop was not incidental to her employment in this context.

60.  In my view, the case of Check Chor Ching could be easily distinguished from our present one as that case deals with an employee on her journey home after work from her usual place of work.  Here, the Applicant was on her way to an appointment arranged by her employer.

61.  Both Mr. Lam and Mr. Wong also referred this Court to the Court of Appeal’s case of Hsu Shu Chiao v. Lung Cheong Toys Ltd. [2002] 1 HKC 479.

62.  In that case, an employee was engaged by a Hong Kong company to work in Dongguan during the week with accommodation provided.  The employer provided transportation for that employee on Monday morning to take him from Shenzhen Railway Station to Dongguan, and in the afternoon on Saturday to take him for Dongguan to Shenzhen to catch the train to Hong Kong.  If that employee worked late and missed the employer’s bus, he would arrange his own transport to Shenzhen and be reimbursed the cost by the employer.  On the day in question, he worked overtime on a Saturday and hired a taxi to go from Dongguan to Shenzhen to meet his girlfriend, but was killed in a road accident in the suburbs of Shenzhen.

63.  In the claim for Employees’ Compensation, the Court of Appeal held that the deceased employee was killed in the course of his employment since the accident occurred while the deceased employee was travelling for the purpose of and in connection with his employment between a place outside Hong Kong and any other such place.

64.  In the judgment of the Court of Appeal, Cheung JA said the following:-

“27. …… In my view, upon arriving in Shenzhen, his presence in the Mainland was for all practical purpose on account of the employment and on the employer’s time… Therefore, his claim was within s.5(1) of the Ordinance.”

65.  Mr. Lam said Cheung JA did not go as far as holding that his employment commenced at the time when he left his residence in Hong Kong.

66.  Mr. Lam said that in the case of Chan Ho Yuen v. Multi Circuit Board (China) Ltd., CACV216/2010 (30/9/2011) the employee worked in the Hong Kong office of the employer, which had a factory in Shenzhen.  On that particular occasion, the employee attended an annual dinner in Shenzhen.  The Court of Appeal considered both Hsu Shu Chiao and Smith v. Stages (§§49-32).  The employee did not rely on section 5(1) and only relied on section 5(4)(g) in that case.  However, Cheung JA’s judgment on section 5(1) in Hsu Shu Chiao was mentioned and discussed in §57 of the judgment by Fok JA.  Mr. Lam says the Court of Appeal did not express any disagreement with Cheung JA’s judgment in this respect.

67.  Mr. Lam said in applying Cheung JA’s judgment on section 5(1) in Hsu Shu Chiao to the present case that at best, the course of employment, under its meaning within section 5(1), would only have commenced once after the Applicant crossed the border and entered Mainland China.  However, at the time of the accident, she was still in Hong Kong.

68.  I am not persuaded by this argument.  In Hsu Shu Chiao case, the employee was on his way back after finishing work at the Shenzhen factory and on way to see his girlfriend when he met an accident on the way back after his just to the karaoke. 

69.  On facts of that case, the Court therefore has to decide whether the employee’s presence in Mainland at time of accident was travelling “for the purpose of and in connection with his employment” (P. 489A of Judgment).  He was on his way back from work, unlike our case here.

70.  In our present case, unchallenged evidence is that the Applicant was at Sheung Kok Street at time of accident solely by reason of instructions given to her in the course of her employment travelling to a lunch appointment across the border.

71.  The Applicant argued that in the Hsu Shu Chiao case, the employment of the deceased commenced in Shenzhen after exiting the Hong Kong border.  The ruling by Cheung JA that the employment commenced “upon arriving in Shenzhen” in my view is applicable only to facts of that case and not of general application.

72.  Further, the case of Hsu Shu Chiao case can further be distinguished because the Shenzhen factory was the usual place of work for the deceased in that case whereas in our present case, the Hong Kong office was the usual place of work for the Applicant.

73.  In the Hsu Shu Chiao case, the Plaintiff was entitled to have the travelling expenses for the Shenzhen sector, i.e. from the Shenzhen Factory to Shenzhen Railway Station reimbursed.  In the present case, the Applicant is entitled to reimbursement of all travelling expenses for the trip, i.e. including those incurred in Hong Kong.

74.  Parties also both referred this Court to the English authority of Paterson v. Costain & Press (Overseas)[1979] Lloyd’s Rep 204 (at p.  486H]. In Paterson, the employee was required by his contract to work and live in Iran.  The employee left for a holiday in Kuwait but he was injured in Iran on the return journey back to his place of work.  The English Court of Appeal held that upon the employee’s return to Iran, he was to be considered in the particular circumstances of the case to be in the course of employment, and so the accident did occur in the course of his employment.

75.  Mr. Wong referred the Court to the case of Nancollas v. Insurance Officer; Ball v. Insurance Officer (Court of Appeal, Civil Division [1985] 1 All ER 833) which I find helpful.  Mr. Nancollas lived in Worthing,  had his main base office in Worthing.  He was sufficiently senior to decide for himself when and in what manner to travel to outstations and, if he set out for Aldershort from his Worthing office instead of from his home, there can be no doubt that the whole of his journey from that office would have been undertaken in the course of employment.

76.  The Court of Appeal in England considered that it cannot in principle, make any difference that, no doubt for sensible reasons such as that there would be no time to undertake any worthwhile work at the Worthing base office, he drove straight to Aldershot from his home …… “in driving to Aldershot, Mr. Nancollas was not going to work.  That was part of his work (at p. 837 e-g).”

77.  I now consider the present case in light of paramount rule of Lord Lowry “whether the Applicant then is going about his employer’s business” and also consider the test of Cheung JA in case of Hsu Shu Chiao, the test “whether at time of accident the employee was travelling for all practical purpose on account of his employment and on the employer’s time” in order to see whether the Applicant then was in course of employment.

78.  The Applicant here was at the time of accident at the Sheung Kok Road for the sole purpose of going to lunch appointment in Mainland and later to the China Factory, as instructed. 

79.  I have no doubt that she was going about the Respondent’s business then.

80.  This Court does not agree, as submitted by Mr. Lam, that because she has not yet commenced taking fare paying public transport trip that therefore the course of employment cannot yet be considered as having commenced. 

81.  It will be nonsensical and bizarre for me to conclude that just because she has chosen to walk instead of taking a taxi to the bus stop that she should be considered not yet commenced her course of employment.

82.  On the date of accident, the Applicant was on her way to the lunch appointment with the staff of Customs Declarations Company in Mainland.  It would be uncontroversial that had she met the accident after she started her journey from the Hong Kong office to a lunch appointment in Hong Kong that the accident would be considered to have arisen out of and in course of employment.  The simple reason being that practically speaking, she was already performing her work, going to meet the employer’s business associates.  Following the approach of the Court of Appeal in Nancollas case, her journey from home should not make a difference and the accident would be considered to have arisen out of and in course of employment.  There is no logic that the answer should be different because the lunch appointment was in Mainland.

83.  In my view, the reimbursement arrangement, the accepted time arrangement, the unusual place of work all indicates that her whole trip from home in Hong Kong was undertaken for all practical purpose on account of her employment and in her employer’s time.

84.  I find therefore that the Applicant was at the time of accident travelling for all practical purpose on account of his employment and on the employer’s time.

Conclusion

85.  For all the reasons set out above, I rule that in the present case, from the moment the Applicant started her trip from home to the lunch appointment, she had already commenced the course of employment.

86.  I find therefore that the accident met by the Applicant on the day did arise out of and in course of her employment with the Respondent.  The case of the Applicant is proved.

87.  Accordingly, the Respondent is adjudged to pay the Applicant:

(a) the said sum of $756,720.10;

(b) interest thereon from the date of application to date of judgment at 8% per annum;

(c) interest thereon from date of judgment to date of payment at judgment rate.

Costs

88.  I also make an order nisi that the Respondent shall pay the Plaintiff the costs of these proceedings, with certificate for Counsel, the same to be taxed if not agreed and that Applicant’s own costs be taxed in accordance with Legal Aid Regulations.