FONG FUNG YING v. ATTORNEY GENERAL

IN THE COURT OF APPEAL

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The short question we have to decide is whether the trial judge was wrong in holding that the deceased Workman was not "in the course of his employment" at the time when he was stabbed in a public lavatory.

2. The Deceased was an artisan whose work involved the use of oxy-acetylene welding and cutting equipment. He had arranged that on the morning in question he would pick up some of his equipment at the office of his supervisor, one WONG King, on his way from his home to the place where he would be working. The judge found that he was supposed to report for work at 8 a.m. At 8.20a.m. he arrived at WONG King's office, but the colleagues who were to assist him in carrying the equipment were not there. He and WONG King then went to a restaurant and drank wine until 8.50 a.m. The judge found that the visit to the restaurant was a break in the employment which was not permitted under the Deceased's conditions of employment. On his return from the restaurant the Deceased did not go directly to the office but went to a public lavatory in the same block as was the office. It was there that the stabbing must have occurred, for a trail of blood was found leading from it to the office, where the Deceased staggered in a few minutes later, unable to speak and obviously dying. It was common ground that, had the Deceased gone from the office to this lavatory for the purpose of relieving himself, that would have been incidental to his employment and the "accident" would have occurred "in the course of" the employment.

3. The view of the judge appears to have been that, because the visit to the restaurant was not in the course of the Deceased's employment, the visit to the lavatory must likewise have been outside the course of his employment: it was for the Claimant to establish that the break in the employment had come to an end and he had not done so. We say that this "appears to have been" his view because he does not expressly consider the possibility that the break in the employment came to an end upon the Deceased's going to the lavatory (a visit which in some circumstances at least could be regarded as incidental to the employment and impliedly authorized) rather than upon his arriving back at the office (where he would once again be available to perform the duty which his service required). He thus treated the visit to the lavatory as incidental to the visit to the restaurant and not as incidental to the employment. That is a conclusion which is challenged by the Appellant.

4. Before considering this main issue we should mention that Mr. Sceats sought to adduce fresh evidence to show (inter alia) that the restaurant was so close to the ofiice that the Deceased could as properly wait there for his colleagues as in the office itself, so that there was never any break in the employment at all. We were not satisfied that the first of the conditions laid down in Ladd v Marshall [1954] 1 W.L.R. 1489 was fulfilled, nor that the judge was wrong to find that the break was unauthorized. Another piece of fresh evidence tendered was a certified translation of the statement by WONG King which had been admitted as part of the evidence in the case. It was, of course, apparent that the translation in fact before the judge was not certified and the Appellant could have asked the judge not to dispense with the production of a certified translation under r.56 of the District Court Civil Procedure (General) Rules. If we had been persuaded that the uncertified translation was seriously misleading, we might have admitted the certified translation ex debito justitiae in spite of the failure of the Appellant to challenge the translation in the court below. As it was, we felt constrained to decline to admit this further evidence also.

5. Obviously it cannot be right to say that, because a visit to the lavatory might in some circumstances be incidental to the Deceased's employment, the Deceased was in the course of his employment on every occasion on which he went to that lavatory during working hours. There are two matters to be considered, (1) the purpose for which he went there and (2) the circumstances in which he went there. He might have gone there to place a bet with a book-maker, or merely to avoid working, and that would clearly not have been "in the course of" the employment. Of course, one could conceive of numerous possible alternative purposes, and if he went there on another frolic of his own he would have been no more in the course of his employment than he was during his visit to the restaurant. Is it a reasonable and proper assumption on the balance of probabilities that he went there to relieve himself, or was it for the Claimant to adduce some evidence to show that that was his intention? The judge was apparently not invited to consider this aspect of the case and it is not now suggested that there was any such evidence, although if oral evidence had been called WONG King might have been able to provide it. The argument on both sides has proceeded on the basis that any visit to the lavatory would be for the normal purpose and we think it would be wrong for us to raise an issue of fact which until now has been presumed in the Claimant's favour.

6. It now being accepted that on the day in question the Deceased's visit to the restaurant was not incidental to his employment, it follows that if he had gone from the restaurant to the lavatory with the intention of returning thereafter to the restaurant to continue his unauthorized break, that would equally not have been in the course of his employment. Had he considered the question we think there can be no doubt that the judge would have been satisfied that this Deceased's intention on leaving the restaurant was in truth to return to work, as his drinking companion had done. Does it necessarily follow that the visit to the lavatory became an incident of the employment and not an incident of the unauthorized break? If not, the judge was entitled to say that the Claimant had not proved on a balance of probabilities that the Deceased had resumed his employment, and we should not upset his finding. After anxious consideration we are driven to the conclusion that we in cannot say the judge was wrong. Indeed, it is impossible to say that the visit to the lavatory was more closely connected with, and therefore incidental to, one activity than with the other: it came in the middle. On that basis alone the judge was entitled to say that the burden of proof had not been discharged.

7. Since "clocking in" for the day the Deceased had spent by far the greater part of his time away from the place where he was employed to be, and that of itself might justify the judge's decision. It is true that "employment" in the phrase "in the course of his employment" is to be understood in a wide sense which includes anything incidental to what the workman is employed to do (Reg. v Industrial Injuries Commissioner Ex parte the Amalgamated Engineering Union [1966] 1 All E.R. 97, 103B), but the mere fact that the Deceased was in a place where he was entitled to be at the material time is not enough: one must consider all the circumstances.

8. The main thrust of what Mr. Sceats submits on behalf of the Appellant is that the judge took too narrow a view and that it would be unreasonable to hold that if the Deceased had first returned to the office before going to the lavatory he would have been once more in the course of his employment, whereas by going first to the lavatory (and probably reducing the period of his actual absence from the office) he had remained on a frolic of his own. Counsel relied upon a passage in the judgment of Lord Denning, M.R. in Reg. v Industrial Injuries Commissioner Ex parte Amalgamated Engineering Union (supra) at p.104A, where he said:

"An illustration can be taken from Knight v. Howard Wall. Ltd. [1938] 4 All E.R. 667. Suppose the boy in the canteen, instead of going back to his work at the end of the meal, had stayed on for half an hour playing darts with the rest of the men in the canteen. By overstaying his visit to the canteen he would be taking himself completely out of the course of his employment, because he would be doing something of a kind different from anything he was employed to do. "

Mr. Sceats in effect asked us to apply the final clause in that passage as though it said "because he would be doing something of a kind different from anything he might be permitted by his employment to do in proper circumstances", whilst Mr. Hui would have us read it literally and emphasizes that the burden is on the Claimant to show that the Deceased had resumed his employment: Idem p.103G. We think that Mr. Hui is right and that the judge was entitled to say that he was not satisfied on the evidence that the Deceased had resumed his employment.

9. That is enough to conclude the matter, but the question has been argued whether, by virtue of s.5(6) of the Employees' Compensation Ordinance, the presumption would have existed that the accident arose out of the employment. The sub-section reads:

"For the purposes of this Ordinance an accident arising in the course of an employee's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment."

Mr. Hui submits that there was evidence to the contrary and that the presumption would have afforded no help to the Claimant. The evidence upon which he relies is that to the effect that the stabbing took place in a lavatory which the Deceased was justified in using and that nothing were shown to have been stolen from him. Counsel cited WONG Gun-fook v McLean [1973] H.K.D.C.L.R. 75, where it was held that, an amah having been murdered in her employer's house and nothing having been found to have been stolen, that was sufficient evidence from which it could be inferred that the accident was unconnected with the employment and, therefore, was sufficient to negative the presumption. Mr. Hui concedes that if that case was rightly decided he can take the matter no further, but he refers to Reg. v National Insurance (Industrial Injuries) Commissioner Ex parte Richardson [1958] 2 All E.R. 689, where Devlin J. said at p.691C:

"I think that the short point is whether the word 'evidence' in s.7(4) of the National Insurance (Industrial Injuries) Act, 1946, in its context means proof, or whether it means evidence in the sense of a very familiar expression, 'evidence fit to be left to the jury'. In my judgment, it means the latter. "

It must be remembered that this was said in the context of a civil matter, where the degree of proof was proof on a balance of probabilities and not beyond all reasonable doubt. Nevertheless, it seems to us that, whilst the evidence in WONG Gun-fook v McLean may have been sufficient to make one speculate whether the murder did arise out of the employment, it was not sufficient to justify a jury in drawing the inference that it did not, and in our view that case should not be followed in future. If the accident here had occurred in the course of the employment, we would have held that there was not sufficient evidence to negative the presumption.

10. We dismiss the appeal.

6th November 1984