PO KWONG MUI v. CHEOY LEE SHIPYARDS LTD.

HEAD NOTE

    Industrial law - Employee taking meal break away from the place of employment - Killed on the public road at some distance from the place of employment - Course of employment - Reasonably incidental to employment - Employer not liable for an accident on the public road when employee not on employer's business or pursuant to duty owing by him to the employer.

IN THE DISTRICT COURT OF HONG
TSUEN WAN EMPLOYEES COMPENSATION CASE
No. 3 OF 1991

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IN THE MATTER OF APPLICATION

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J U D G M E N T

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Facts

1. In this Application the widow of a deceased worker, Cheng Shui Kuen ("the deceased") is claiming compensation against the employer of the deceased under the Employees' Compensation Ordinance ("the Ordinance").

2. The deceased was born in 1923. He joined his employer, the Respondent in 1979. Prior to his employment employer, with the Respondent he worked as a fisherman. He lived on board a fishing boat in Cheung Chau until he moved ashore five to six years ago.

3. On 1st March l990 at about 10 p.m., the deceased was killed in a traffic accident at the junction of Tonkin Street and Lai Chi Kok Road. Kwok Kam Shiu ("Mr. Kwok"), a colleague of the deceased gave evidence on behalf of the Applicant. Mr. Kwok joined the Respondent in September 1989. He together with the deceased and another employee worked on board a boat of the Respondent called Wing Cheung ("the boat"). Mr. Kwok was the first-mate, the deceased was a crew member and the third employee was the ship master of the boat. The boat was used to transport the workers of the Respondent to and from its shipyard in Chuk Ko Bay in Lantao Island. After the workers had been transported to Chuk Ko Bay in the morning, the boat would return to the Respondent's shipyard in Cheung Sha Wan ("the shipyard"). The crew members would take their lunch between 12 noon and 1 p.m. The shipyard in Cheung Sha Wan did not have a canteen and the crew members would go ashore to have their lunch. After lunch the crew members would sail to Chuk Ko Bay again and in the evening they would transport the workers back from Chuk Ko Bay. The boat would arrive at the shipyard at about 8:15 p.m. The Respondent had about eight to nine boats. One of the boats would be required to be on standby duty once a week and the crew members of that boat would be required to work the night shift when the boat was on call.

4. On 1st March 1990, the crew member of the boat was on night duty. After the boat arrived at the shipyard, Mr. Kwok and the deceased went ashore to have their dinner. They took a public light bus to a restaurant called Fu Kee at Nelson Street. They had been to that restaurant before on three to four occasions. They left the shipyard at 8:15 p.m. and arrived at the restaurant at 8:30 p.m. Mr. Kwok said that whenever the crew members were required to perform night duty, they would go out for dinner. The dinner that night took about 20 to 25 minutes. During the dinner both Mr. Kwok and the deceased drank wine as well. After dinner the deceased told Mr. Kwok that he would not be going back and would like to stay behind. On previous occasions Mr. Kwok and the deceased would return to the shipyard after the dinner. When Mr. Kwok left the restaurant, he saw the deceased was standing by a fruit stall. He asked the deceased to leave but the deceased did not respond to him. Mr. Kwok then left on his own. He walked a long distance before he reached a bus stop and waited for about 15 minutes before he boarded a bus and returned to the shipyard. The bus he took was either Route No.32 or No.46. The bus stopped outside the shipyard and Mr. Kwok returned to the shipyard at around 9:15 to 9:20 p.m. when he returned to the shipyard, the deceased had not yet returned. On the following day Mr. Kwok was told that the deceased was killed in a traffic accident.

5. Mr. Kwok said that no one from the Respondent had told him that the employees could not leave the shipyard for meals during their night duty. He said that most of the employees would leave the shipyard for meals, but some would cook their own meals on board the boats. The crew members of the boat, however, did not cook the meals and there was no cooking facilities on board the boat. The crew members of the boat all went ashore for meals. He said that there was no specific instruction given by the Respondent as to how long the dinner should last. He said that the employees had to take the meals as quickly as possible. He said that some workers had their dinners for a few hours but that was not something permitted by the Respondent. He said that if he were to go to Yau Ma Tei for dinner, he would take an hour or so. On occasions when he was on night duty, the boat had never sailed out of the shipyard. He was not told of the 33 regulations of the Respondent.

6. Cheng Tai Kun is the son of the deceased. He was also employed by the Respondent as a ship master of one of the boats. He worked for the Respondent for eight years. He confirmed that workers on night duty would go ashore to have their dinner. He was not told by any one from the Respondent that during the night duty the workers could not leave the shipyard for dinner. He was not aware of the regulation of the Respondent which prohibited the employees from leaving the shipyard while they were on duty. He said that the crew members would usually have an hour or so for the dinner, and after dinner they would return to the shipyard. He said that the deceased was illiterate and was not familiar with the urban area.

7. According to the evidence that was agreed between the parties, the deceased was knocked down by a public light bus at the junction of Tonkin Street and Lai Chi Kok Road at about 10 p.m. According to the plan produced by the Applicant, which was agreed by the Respondent, the scene of the accident was along the route of the bus which Mr. Kwok took to return to the shipyard. It would take about 15 minutes to walk from the scene of the accident to the shipyard. After leaving the scene of the accident the bus would stopped at two more stops before stopping outside the shipyard. In the vicinity of the scene of the accident there is a housing estate and an abattoir.

8. Hui Chi Wah ("Mr. Hui"), the personnel manager of the Respondent stated that the Respondent would not allow the crew members on night duty to go out of the shipyard for dinner. He said that the crew members had to make arrangements for their evening meals at the shipyard. The reason for not allowing the crew members to leave the shipyard was because they had to make themselves available in case of emergency. He said that there was no other means of transport from the shipyard in Chuk Ko Bay other than by the boats of the Respondent. In case of emergency in the shipyard in Chuk Ko Bay, the boat on duty would have to go there immediately. He referred to the contract of employment of the deceased which contained the 33 regulations of the Respondent. The regulations provided, inter alia, that the employment of the workers might be suspended or terminated if the worker left the Respondent's premises during working hours without permission. He said that the regulations were read by his secretary to the deceased. He said that the Respondent had over 1,000 employees. He said that he was not aware that in March 1990, workers of the Respondent went out for dinner during their night duty. He disagreed with the suggestion that it was accepted by the Respondent that the crew members would go out of the shipyard for their evening meals. He agreed that it was rare for the boat on duty to sail to Chuk Ko Hay in the evening but there were a number of occasions when the boat was required to sail to Chuk Ko Bay at night.

Course of Employment : Incidental to the Employment

9. The only issue in this case is whether the death of the deceased occurred in the course of his employment.

10. Mr. Cheng, Counsel for the Applicant, asked me to accept the evidence of the witnesses of the Applicant in that the crew members of the boat were allowed by the Respondent to go ashore to have their dinner when they were on night duty. He argued that taking dinner outside the shipyard was something incidental to the employment of the deceased. The irresistible inference he asked me to draw was that the deceased was killed while returning to the shipyard. He submitted that the deceased was an elderly man who did not know the urban area and he probably had lost his way when he returned to the shipyard after the dinner. He submitted that the deceased was still in the course of his employment at the time of his death.

11. I. accept the evidence of Mr. Kwok and the son of the deceased that the crew members who were on night duty had been .taking their meals outside the shipyard. They impressed me as honest witnesses and there was nothing to suggest that they were not telling the truth on this matter. I accept that there was no canteen in the shipyard and there was no cooking facilities on the boat. I accept that Mr. Kwok and the deceased had gone ashore for dinners when they were on night duty on three or four occasions. I find that the Respondent was aware that its workers had been going ashore for their meals and it had not issued directions to its employees prohibiting them from going ashore for their evening meals. I find that the Respondents had, if not expressly, impliedly allowed the employees to go ashore to have their evening meals when they were on night duty. I do not accept Mr. Hui's  evidence that his secretary had read the regulations to the deceased. After all, according to Mr. Hui, the Respondent had over 1,000 employees and it would be bordering on incredulity to suggest that the secretary would go through the 33 regulations with each of the workers who were illiterate. Even if such regulations were read to the workers, the fact remained that the Respondent had not been enforcing the reguations and had been permitting the employees on night duty to leave the shipyard for their meals.

12. In R. v. Industrial Injuries Commissioner. ex parte Amalgamated Engineering Union [1966] 1 All E R 97, the employees of a factory were entitled to a tea break of ten minutes in the morning. A buzzer sounded the end of the tea break. Smoking was not permitted on the workshops but was allowed in a small smoking booth, which was close to a passageway. When a worker reached the booth it was full. He squatted in the passage outside the booth, waiting to go in and smoke. He had overstayed the tea break by five minutes and was still waiting in the passage rolling a cigarette, when he was injured by a forklift truck which ran into him. The worker claimed industrial injury benefit on the ground that he had suffered injury by an accident arising out of and in the course of his employment. His claim was rejected by the industrial injuries commissioner on the ground that the accident did not arise in the course of his employment. Although the Court of Appeal refused to disturb the finding of the commissioner, it referred to the "incidental to work" test. Davies L.J. held that:

"When a workman is exercising a right, a privilege or a prerogative, expressly or impliedly given to him by his employer, by his conditions of employment or by his conditions of employment or by his contract of employment, it could in some cases no doubt be said that he was not working, for example when he is having his lunch or playing a game of darts in the works canteen. He is doing something which he is permitted to do by his contract; and although he is not working, he is doing something incidental to his contract and therefore is still within the course of his employment".

Lord Denning also held that,

"What is the position when a man overstayed his tea break or his meal break? I do not think that the mere fact of overstaying his time takes him out of the course of his employment; certainly not when it is done without thinking. Even if it is done negligently or disobediently, it does not automatically take him outside the course of his employment. It is only taken out of the course of his employment when the circumstances show that he is doing something of a kind different from anything he was employed to do".

He further held that,

"I would agree that in the ordinary way if a man whilst at his place of work, during his hours of work, is injured by a risk incidental to his employment, then the right conclusion usually is that it is an injury which arises out of and in the course of the employment, even though he may not be doing his actual work but chatting to a friend or smoking or doing something of that kind. But he may take himself out of it if he does something of a kind entirely different from anything he was employed to do".

13. Lord Denning was of the view that in the earlier days courts made the mistake of interpreting the Employees' Compensation Acts too narrowly. He referred to the case of Parker v. Black Rock (Owners) [1915] A.C. 725 in which Lord Parker held that "in order to make it an accident arising out of the employment the absence from the vessel must be in pursuance of a duty owned to the employer."

14. Lord Denning commented that. "This idea that a duty is necessary is all wrong."

15. The incident to work test was adopted by the Hong Kong Court of Appeal in Lam Min and others v. Yau On Construction Company [1981] HKLR 646. In that case a deceased construction worker was employed by the respondent company at a site which was only accessible by boat. There were no facilities for lunch at the site and it was customary for the workmen to travel to the mainland for their meal on a boat provided by the site owner. There was no charge for this facility and the employer extended the lunch break by 15 minutes for travelling time. The only alternative forms of transport for the workmen were privately owned motor boat which costed $20 per trip or a barge, which made unscheduled journeys from the village near the site at $2 per trip. The deceased's wages were $80 per day. The deceased was killed when the site owner's vessel taking the workmen for their launch collided with a shrimp boat and sank. The appellant sought compensation under the Employees' Compensation Ordinance. The Court of Appeal held that the correct test in the circumstances was not whether there was a duty on the workman to travel by boat supplied by the employer, but whether taking the boat was incidental to the work. On the facts, the journey was not an interruption of the work but an event incidental to it. Thus, even if there were viable alternative forms of transport, which the court doubted, the accident arose out of and was in the course of the deceased's employment.

Accident on the public road

16. While taking an evening meal during the night shift might be something incidental to the course of employment of the deceased, a distinction must be made if the worker met with an accident on a public road. In Lewis, Compensation For Industrial Injury, the learned author, at page 63, had this to say.

                "(j) Taking a meal or other refreshments.

This is the example often given of an act incidental to employment, it first being recognized as such in Blovet v. Swyer (1904). Claims had succeeded where an injury has occurred on the employer's premises while the claimant is at, or going to or from, a canteen or other place where meals are taken. Benefit was paid in Armstrong Whitworth & Co. v. Redford (1920), CSI 6/49, R(I) 25/55, R(I) 17/60 and R4/70(II). In these cases the accident happened during a break in work hours, but it may not be incidental to employment to go for a meal outside work hours as discussed in (2) above.

"The place of injury is an important factor. It made no difference that the canteen or food trolley was owned not by the employer but by an independent contractor in' Knight v. Howard Wall (1938), CI 34/50 and R(1) 3/63(T). Nor did it matter that the canteen was physically separated from the employer's premises in R(1) 11/53. But there is a sharp contrast between these cases and those where injury occurs on a public road. Even if the claimant is only crossing the road to reach the canteen on the other side, as in R(1) 34/52, the accident will be held outside of employment. Cases on this point are considered under (s) below in relation to travelling order to take a meal. Before and after crossing the road the employees may be within employment, but from the moment he sets foot on the public highway until he leaves it, he is usually without the protection of the industrial scheme (emphasis added)".

At page 78, the learned author continued to say that,

"Travelling in order to take a meal or other refreshment - is dealt with in accordance withthe rules outlined above in that an accident is generally considered to be outside of an employment if it happens on a road (Bell v. Armstrong, Whitworth and Co (1919), CI 282/49, R(1) 1/53, R(1) 24/53, R(1) 89/53 and R(1) 24/56). This sharply contrasts with the position where injuries occurred in the course of taking a meal on the employer's property as considered at page 63 above. Even where an employee was only making a short journey across the public road to reach the employer's canteen, benefit was refused in R(1) 74/52. An exception to this general rule is where the claimant's responsibilities continue throughout the meal break as in R v. National Insurance Commissioner, ex parte Reed. A more important exception exists in relation to those employed to travel, as in R (1) 5/55, where the itinerant brewery cellar inspector obtained benefit when injured on the road while going to get a meal".

17. In Bell v. Armstrong, Whitworth & Co (Ltd.) (1919) 35 The Times Law Reports 479, a worker while crossing a street to another part of the employer's works in order to go to a canteen provided there for the employees was knocked down by a motor lorry and died of an injury. Swinfen Eady, M.R. held that,

"It was considered and well established that if a workman met with an accident while going to or from the place of business, that would be outside the Act; and no authority had been produced to establish that an employee was entitled to compensation for an accident which occurred in the public street, when the employee was not then on the employers' business, or pursuant to any duty owing by him to the employers".

18. In R, v. National Injuries Commissioner, ex parte Michael [1977] 2 All E R 420 Lord Denning M.R., at page 423, held that,

"This test of "reasonably incidental", is to be gathered from the speeches of Lord Sumner, Lord Parmoor and Lord Wrenbury in Armstrong, Whitworth & Co. v. Redford [1920] A C757. It was applied by the county court judge in Knight v. Haward Wall Ltd. [1938] 4 All E R 667 with the approval of this court. It was followed by this court in R. v. Industrial Injuries Commissioner, ex parte Amalgamated Engineering Union [1966] 1 All E R 97. But, in all those cases the workman was at the premises where he or she worked and was injured whilst on a visit to the canteen, or other place for a break. The words "reasonably incidental" should be read in that context, and limited to cases of that kind. They are not part of the Act and should not be extended to other cases without careful consideration. Take a case where a man is going to or from his place of work on his own bicycle, or in his own car. He might be said to be doing something reasonably incidental to his employment. But if he has an accident on the way, it is well settled that it does not "arise out of and in the course of his employment": See Alderman v. Great Western Railway Company [1937] 2 All E R 408; Netherton v. Coles [1945] 1 All E R 227. Even if his employer provides the transport, so that he is going to work as a passenger in his employer's vehicle (which is surely reasonably incidental to his employment) nevertheless, if he is injured in an accident, it does not arise out of and in the course of his employment: See Vandyke v. Finder [1970] 2 All E R 335. It needed a special deeming provision in a statue to make it "deemed" to arise out of and in the course of his employment (See Section 8 of the 1965 Act)."

19. Notwithstanding his criticism that the earlier decisions of the courts were unduly restrictive, Lord Denning cautioned the need to consider the "incidental. to work" test in the context in which the test applies. In my view where a worker was injured on the road on his way to and from work, the applicable test is that stated in Bell v. Armstrong, Whitworth & Co. The "incident to work" test is not applicable to such a situation. In the present case, the deceased was killed on a public road, namely the road junction of Tonkin Street and Lai Chi Kok Road. Even if he was on his way to work after the dinner, it could not be said that he was there on the employer's business or pursuant to any duty owing by him to the employer. The case does not come within the exceptions mentioned by Lewis. The present case is obviously distinguishable from the Lam Min situation. It could not be said that the deceased was at the time of his death within his course of employment.

20. In any event the burden of proof lies upon the Applicant to show that at the time of the accident the deceased was in the course of his employment. He did not return to work immediately after the dinner. His presence about an hour later at the scene of the accident, which was some distance away from the shipyard, was equally consistent with him returning to work and with him being there for some purpose unconnected with his employment. As in the case of Fong Fung Ying v. the Attorney General [1991] 2 HKLR 133 it is impossible to say that the presence of the deceased at the scene of the accident was more closely connected with and therefore incidental to one activity than with the other. It came in the middle. The burden of proof has not been discharged by the Applicant. In the circumstances the Application must be dismissed.

Compensation

21. In the event that this matter is taken to appeal the amount of compensation is to be assessed as follows:

22. The parties agreed that the compensation is equal to 36 monthly wages of the deceased. The only matter in dispute is the average monthly earnings. The Applicant relied on the Notice by Employer of the Accident in which it was stated that the average monthly earning of the deceased for the past 12 months preceding the accident was $4,770.40.

23. Miss Pinto, Counsel for the Respondent, accepted that that was the figure stated in the Notice but contended that according to the List of Earnings filed by the Respondent, the actual average monthly earning of the deceased for the past 12 months was $4,371 per month. No explanation was offered by the Respondent as to how the figure of $4,777.40 was arrived at. Since the earning of the Applicant was within the knowledge of the Respondent and as there was no evidence to suggest that the sum of $4,777.40 was otherwise wrong, I would adopt that figure in making the assessment. The amount of compensation payable to the Applicant would be $4,777.40 x 36 = $171,986.40.

Conclusion

24. The order I shall make is as follows:

1.     The Application is dismissed;

                2.      The Respondent is to have the cost of the Application together with a certificate for                          counsel;

                3.       The Aplicant's own cost is to be taxedin

                         accordance with Legal Aid Regulation.