YUEN YUK YING v. CHAN KAM WING t/a KAM BO REAL ESTATE CO.

HEADNOTE

[Workmens' compensation - employee driver in fatal road accident - driver's judgment impaired by alcohol - consequences]

IN THE COURT OF APPEAL

1996, No. 126
(Civil)

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J U D G M E N T

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Godfrey, J.A. (giving the judgment of the court) :

Introduction

1. This is an appeal from an order of Her Honour Judge Betty Kwan, dismissing, on 14 May 1996, an application for compensation under the Employees' Compensation Ordinance, Cap.282 ("the Ordinance"). The successful respondent, Chan Kam Wing ("the employer") was the employer of one Hon Chun Nam ("the employee") who died on 20 November 1994, aged 36, as a result of severe multiple injuries suffered in a traffic accident ("the accident") in which he had been involved the day before (when driving a van belonging to the employer) and which had occurred at about 11.25 p.m. The unsuccessful applicant was the employee's widow (two children of the employee's marriage to the applicant, both infants at the date of his death, also survived him). The employee's blood alcohol level at the time of his death was 133mg/100ml. There was medical evidence before the judge (which, although she did not in terms say so in her judgment, she clearly accepted) that a blood alcohol level of 133mg/100ml would have seriously impaired the employee's driving performance. It was this feature of the case which led the judge to refuse compensation to the applicant; we now have to decide whether she was justified in doing so.

The facts

2. In addition to the facts recited above, the following material facts were proved or admitted at the trial.

3. The employee was employed by the employer, a real estate broker, and it was part of the duties of his employment to transport equipment and tools to various construction sites when asked to do so. On 19 November 1994, his employer asked him to pick up some equipment and tools from a construction site in Sheung Shui, using a van provided by the employer and for which the employer provided the employee with a parking space in Yuen Long (the employee lived 5 minutes away, in Tin Shui Wai). After picking up the equipment, etc. in this van, the employee had dinner with a manager of the employer, and the construction site supervisor, at which dinner he drank some beer. After dinner, at about 9.30 p.m., he drove the van to Lai Wai Chuen, where the equipment, etc. he had picked up in Sheung Shui was unloaded. He then joined the manager in visiting the home of the worker who had unloaded the equipment, etc. There he drank some more beer; but, to the manager, he appeared sober and composed throughout. At about 11.00 p.m. he left, saying that he wanted to go home. The accident occurred around 11.25 p.m. on the Yuen Long highway. The van being driven by the employee emerged from a left-hand bend and ran into the rear of a road-sweeping vehicle which had come to a halt at the side of the highway, in the fast lane, and had remained stationary for about half a minute before the van ran into it. It was carrying on top a signal light in the form of a yellow arrow indicating left; there was an illuminated yellow rotary beacon light on top of the arrow signal light. The weather was fine and the road conditions normal. The van left no tyre marks. There was, as the judge said, "no direct evidence as to how the accident occurred". However, there was opinion evidence from a consultant automotive engineer (which the judge accepted). This expert's opinion was to the effect that the van must have been travelling at a high speed (but under the relevant speed limit, which was 70 kmph). He was of the view that the presence of the left-hand bend meant that there had remained only 131 feet of road space left between the van and the road-sweeping vehicle after the van came out of the bend; and that consequently, after negotiating the bend, the employee, at the speed he was travelling, would have had around 2 seconds in which to react to the presence of the road-sweeping vehicle on the fast lane. (Although it will not in the end matter, we have to say that we have some difficulty in sharing this conclusion; it seems to us that, left-hand bend or no, the road-sweeping vehicle, advertising its presence as described above, would have come to the notice of an approaching driver, even one driving at or near 70 kmph, in plenty of time, unless his judgment was impaired in some way.)

What was the cause of the accident?

4. The judge held that the "only reasonable inference to draw in all the circumstances of the case is that the alcohol had such an effect on the [employee's] reactions that he was not able to avoid colliding into the rear of the [road sweeping vehicle]" and this was the "major and effective cause of the accident". (emphasis added). We cannot agree. In our opinion, the judge's finding that the employee was "not able" to avoid the accident was not justified by the evidence. The only possible inference from the primary facts, as we think, is that the accident was caused by an error of judgment on the part of the employee, an error the risk of which had been enhanced by his ingestion of alcohol at a level liable substantially to impair that judgment.

The legislation

5. The purpose of the Ordinance is to provide for the payment of compensation to employees who are injured in the course of their employment (see the preamble). 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 is liable to pay compensation : see section 5(1). An accident arising in the course of the employee's employment is to be deemed, in the absence of evidence to the contrary, to have arisen out of that employment: see section 5(4)(a). No compensation is payable for any injury caused by an accident which is directly attributable to the employee's having been at the time of the accident under the influence of alcohol; but this bar does not operate where the injury resulted in death : see section 5(2)(d). And, as to an injury resulting in death, the court, on consideration of all the circumstances, may award the compensation provided by the Ordinance or such part thereof as it thinks fit to the employee, even where his injury was attributable to his serious and wilful misconduct: see section 5(3).

The interaction between section 5(2)(d) and section 5(3)

6. By enacting section 5(2)(d) the legislature has gone out of its way to treat the influence of alcohol on the employee as irrelevant, in the case of a fatal accident, to the right to claim compensation. It would, in our opinion, produce a nonsense if the dependants of the employee, having had their right to compensation in such a case preserved by section 5(2)(d), were to have it taken away from them altogether (or left as a matter for the court's discretion) by the treatment of the same facts as serious and wilful misconduct for the purposes of section 5(3). We are therefore of the view that section 5(3) can have no application to the present case and that accordingly this appeal must succeed; but in case this view is wrong we shall assume for the purposes of the remainder of this judgment that section 5(3) does apply here.

The issues

7. On this basis, the issues which we have to decide may be formulated as follows :

(1) Did this accident arise (i) "out of" and (ii) "in the course of" the employment?

(2) If it did, was it attributable to the employee's "serious and wilful misconduct"?

(3) If so, was it a proper exercise of the judge's discretion here to deny compensation altogether?

Issue (1) - Did this accident arise (i) "out of" and (ii) "in the course of" the employment?

8. Leaving on one side for a moment the matter of the employee's ingestion of alcohol, there could be no question but that his death was caused by an accident which arose both "out of" and "in the course of" his employment. He was (or so it must, we think, be presumed) driving his employer's van to the overnight parking space designated for it by his employer, it was in the course of his doing so that the accident happened; and an accident arising in the course of an employee's employment, is, as we have seen, to be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment. Does the employee's ingestion of alcohol here make any difference? In our opinion, it does not. "A man may be engaged in the performance of his work and an accident may occur incidental to his work, and therefore 'out of' his employment, even although he is in a state of intoxication so great as to be, in the opinion of ordinary people, unfit for the performance of his work" : see Fraser v. Riddell [1917] SC 125 per the Lord President at p.128. We conclude, like the judge, that this accident arose out of and in the course of the employee's employment. There are, certainly, cases in which the accident was held to have arisen solely because of the employee's drunken condition and not to any risk of the employment, and compensation under the relevant legislation has therefore been held not to be payable: see Frith v. Louisianian (owners) [1912] 2 KB 155 and Nash v. Rangatira (owners) [1914] 3 KB 978. But the present case is a case where the accident was due to a risk of the employment, although one which the employee, owing to his condition, may have been and probably was less able to avoid than if he had not ingested alcohol; it is comparable rather to the New Zealand case cited to us of Millin v. Fowler [1926] NZLR 372, where too the driving of the vehicle was the work which the employee had been employed to do.

Issue (2) - If it did, was it attributable to the employee's "serious and wilful" misconduct?

9. As we have said, we would hold that, having regard to the provisions of section 5(2)(d), it cannot have been the intention of the legislature to require the court to treat the employee's ingestion of alcohol as "serious and wilful misconduct"; and, if that is right, there is no bar to the applicant receiving compensation. If, however, we are wrong, can it be said that the employee's death was attributable to his serious and wilful misconduct? The judge thought so. In a Scottish case, where an employee's drunken condition rendered him incapable of consulting his own safety, and in consequence of which the accident happened, it was held that the accident was due to the employee's serious and wilful misconduct: see M'Groarty v. John Brown & Company Ltd. (1906) 8F. (Court of Session) 809. The facts of our case are not so strong, and we have therefore not found the point altogether easy; but in the end we have come to the conclusion that if the employee's job is, as here, one which involves driving a motor vehicle (in unsafe hands, a lethal weapon) on a highway, any degree of impairment, due to the voluntary ingestion of alcohol, which has the effect of dulling the driver's senses, slowing his reaction time and hampering his motor skills does constitute serious and wilful misconduct. It has been so held under the relevant legislation in New Zealand (see Millin v. Fowler, cited above) and in Canada: see Decision No. 763191 (1994) W.C.A.T. Reporter 45 (a decision of a Workmen's Compensation Act Tribunal panel). In the Canadian case, the panel said (at p. 52): "When the job is driving, in our view, serious and wilful misconduct must be interpreted with no tolerance for impairment by drugs or alcohol ....." We have not forgotten the wise words of Lord Loreburn in Walters v. Staveley Coal and Iron Co (1911) 8 BWCC 303, at p. 304:

"The facts of no two cases are on all fours, and to decide one case on a supposed analogy to another is highly dangerous."

But the Canadian case is a modern case, directly in point. We agree with the panel's opinion; and therefore with the finding of the judge to the same effect in our case.

Issue (3) - If so, was it a proper exercise of the judge's discretion here to deny compensation altogether?

10. The judge had a discretion (if this issue arises at all) to deprive the applicant of compensation. This is what she did. The questions for us, therefore, are, first, whether this was in "all the circumstances" a proper exercise of her discretion; and, second, if not, how we in this court, exercising the discretion afresh, ought to exercise it.

11. The Ordinance provides no guidance as to what are the "circumstances" which the court should or should not take into account in exercising its discretion; nor is there any relevant authority which does so. The judge thought there was nothing in the case which called for the exercise of her discretion in the applicant's favour. She refused to accept that in exercising her discretion it was material to consider the provisions of section 5(2)(d), notwithstanding the obvious intention on the part of the legislature to regard with comparative leniency the conduct of an employee who was killed as a result of an accident "directly attributable to ..... his having been at the time of the accident under the influence of alcohol". And she allowed herself to be influenced in her conclusion by her finding (not, as we think, justified by the evidence) "that the major and effective cause of the accident [was] the inebriated state of the [employee]".

12. In truth, the cause of the accident was the manner in which the van was being driven; there was, as we have earlier found, an error of judgment on the part of the employee, an error enhanced by his consumption of alcohol.

13. In our judgment, these were errors on the part of the judge which vitiate the exercise of her discretion, thus requiring us to consider the matter afresh.

14. We would construe the expression "in all the circumstances" widely, there being no warrant for construing it narrowly; and so we would hold that a court exercising this discretion is entitled to take into account all the circumstances of the case as revealed by the evidence; all the circumstances peculiar to the accident, and all the circumstances peculiar to the victim. In our case, the employee drove the van for some 25 minutes without incident, before the accident occurred; his condition incurred no suspicion, let alone censure, on the part of the employer's manager in whose company he had been all evening before he set out on his fatal journey back to Yuen Long; he left a widow and two infant children; and he comes within the apparent policy of the legislature to treat with a degree of leniency the dependants of employees who are killed by accidents directly attributable to their having been at the time of the accident under the influence of alcohol. We would exercise the court's discretion in favour of allowing the applicant the compensation provision for by the Ordinance, without any deduction.

Conclusion

15. We would allow the appeal, whether we are right or wrong as to the interaction between section 5(2)(d) and 5(3), and order, pursuant to Order 42 Rule 5B(6), that the applicant's costs of the appeal, and her costs below, be taxed and paid by the respondent to the applicant. (We need only add that, on the footing that the respondent will have to pay all of the appellant's costs, it is not necessary for us to deal with that part of the order of the judge to which the respondent, successful below, has taken objection in this court, which was an order depriving him of part of his costs despite his being the successful party.)