Ng Ling Ling v. INTERNATIONAL UNITED SHIPPING AGENCY LTD.

HEADNOTE

Facts

The dependants of 2 seamen, Yu But and Choi Fai claimed compensation under the Employees' Compensation Ordinance (the "Ordinance") The 2 seamen, while serving on board the ship of their employer, were stabbed to death by a fellow seaman who was subsequently convicted of manslaughter of the 2 seamen. The fellow seaman first stabbed Yu But and then stabbed Choi Fai who confronted him afterthe stabbing of Yu But. Evidence showed that a few hours before the attack, the fellow seaman had a quarrel with Choi Fai on martial art and fought with him. Yu But intervened and locked the neck of the fellow seaman with his hands. It was conceded by the employer that the attack on the 2 seamen was an accident that arose in the course of employment but disputed whether it arose out of employment.

Held

1.    The killing of: the 2 seamen was an accident that arose in the course of their employment within Section 5(l) of the Ordinance.

2.    The death of Yu But was not an accident that arose out of his employment. The assault was not. related to his employment but was personal in nature and related to the earlier quarrel and fight.

3.    The presumption under section 5(6) of the Ordinance does not apply to Yu But's case as there is evidence which is fit to be left to the jury showing that the killing arose out of the earlier quarrel and fight which was personal in nature and did not arise out of his employment.

4.    The death of Choi Fai was an accident that arose out of his employment. He was killed while acting under an implied duty to protect the safety of a colleague in an emergency situation.

5.    Choi Fai had acted reasonably in the rescue of a colleague who had suffered injury and his death was deemed by section 5(5)(c) of the Ordinance to arise out of and in the course of his employment.

IN THE DISTRICT COURT OF HONG KONG
CIVIL JURISDICTION
EMPLOYEES' COMPENSATION NO. 17 OF 1988

-------------------------

(Consolidated)

________________

Judgment

________________

1. In this consolidated action, the Applicants, who are the dependants of two deceased seamen in the employ of the Respondent, are claiming compensation under the Employees' Compensation Ordinance (the "Ordinance"). The Respondent disputed its liability towards the Applicants. It was agreed that in the event that liability is established, the amount of compensation payable to each of the Applicants shall be in the sum of $299,000.00 It was further agreed that the Applicants are wholly dependent on the 2 deceased seamen : the Applicant Yu Sang is the father of Yu But and the Applicant Ng Ling Ling is the wife of Choi Fai. Chan Choi Tai, the mother of Choi Fai, who was a named dependant had died since the lodging of the application.

2. The following are the facts that had been agreed between the parties and are set out in the Schedule of Agreed Farts produced in Court

1.    At all material times Yu But and Choi Fai were employed by the Respondent on board the motor vessel "United Hope" pursuant to Articles of Agreement and the Standard Clauses and Terms of Service for Hong Kong Seamen employed in a ship registered in Hong Kong.

2.    Yu But entered into the Articles of Agreement on 20th July 1987 and was engaged in the capacity of Seamen Grade 1.

3.    Choi Fai entered into the Articles of Agreement on 20th July 1987 and was engaged in the capacity of 3rd Engineer Class 4(M).

4.    The said engagements were for a period not exceeding 9 calendar months or on first return to Hong Kong within that period.

5.    The trading area of my "United Hope" was world wide and included all ports between the limits of latitudes 75ºN and 60ºS.

6.    The crew at all material times comprised approximately 27 persons, 20 of which were Hong Kong Chinese and seven of which were either English or Indian.

7.    On 20th August 1987 mv "United Hope" was in international waters sailing south towards Guinea in West Africa off the coast of Morocco.

8.    The said vessel was provided with a Crew's Mess Room, Duty Mess Room and Crew's Recreation Room adjacent to the kitchen and these rooms were for the use of the ship's crew.

9.    During the early part of the evening at or about 7:00 p.m. Choi Fai and Choi Chi Chung were both present in the Crew's Mess Room and were both drinking alcohol. At that time neither Choi Fai nor Choi Chi Chung was on duty. An altercation broke out between Choi Fai and Choi Chi Chung which resulted in them struggling on the floor.

10.    Yu But entered the Crew's Mess Room from the adjacent Crew's Recreation Room where he was engaged in a game of mahjong with the other crew members. At this time Yu But was not on duty. Yu But interceded in the struggle and separated the protagonists and by his actions brought the fighting to an end.

11.    Yu But and Choi Fai retired to the crew's Recreation Room Choi Chi Chung Complained of injuries received at the hands of Yu But and was escorted back to his cabin where other members of the crew gave him medicinal wine for rubbing on his injuries.

12.    Subsequently Yu But went on duty for the hours between 8:00 p.m. and 12:00 p.m. and went up to the bridge of the vessel where the officer in charge of the bridge at that time was the Third officer, Mr. Prakash.Yu But's position at the game of mahjong was taken up by Choi Fai.

13.    Sometime after 10:00 p.m. Yu But left the bridge where he was on duty and went into the Crew's Recreation Room. Choi Chi Chung had by this time returned to the Crew's Mess Room, which was adjacent to the Crew's Recreation Room, where he was seen with bottles of beer.

14.    Shortly thereafter Choi Chi Chung entered the Crew's Recreation Room. Yu But was stabbed by Choi Chi Chung with a pointed triangular file. Yu But subsequently fled from the Crew's Recreation Room and shortly thereafter collapsed.

15.    Choi Fai, who at that time was off duty, then left the game of mahjong and shouted words to Choi Chi Chung to the effect "That's enough from you". Choi Fai moved towards Choi Chi Chung and was wounded by Choi Chi Chung with the said file. In the struggle that followed, Choi Fai managed to disarm Choi Chi Chung, take the said file from Choi Chi Chung and stab Choi Chi Chung with it who then fled from the Crew's Recreation Room. Choi Fai chased after him and left the Crew's Recreation Room but shortly afterwards made his way to the cabin of the Chief Engineer where he collapsed outside at approximately 10:30 p.m.. He managed to speak the words (in English) "Choi Chi" to the Captain and his supervisor, the Chief Engineer.

16.    Yu But and Choi Fai were dead on the ship's arrival at Casablanca where the ship had been diverted following the outbreak of violence.

17.    Choi Chi Chung was subsequently charged with two counts of the murders of Yu But and Choi Fai contrary to Section 2 of the Offences against the Person Ordinance Cap. 212 and the common law. He pleaded guilty to the manslaughter of each of the deceased and was sentenced to 6 years imprisonment on each count. The Crown accepted these pleas despite the fact that Choi Chi Chung was charged with "murder" on each count.

3. The parties also produced by agreement 2 bundles of documents, namely, Bundle B, containing statements of witnesses and Bundle C, containing, inter alia, documents relating to the employment of the 2 deceased seamen and investigation reports. Unlike the Schedule of Agreed Facts, which was agreed as to its content, the documents in Bundles B and C were agreed as to their admissibility and authenticity only.

Accident arising out of and in the course of employment

4. The Applicants must establish that the death of Yu But and Choi Fat was an accident arising out of and in the course of their employment. I shall deal with the case of Yu But and Choi Fai separately.

Yu But

Accident

5. According to the case of Board of Management of Trim Joint District School v. Kelly [1914] A.C. 667, the assault and unlawful killing of Yu But, despite the use of deliberate violence, was an accident within the meaning of section 5(1) of the Ordinance. This is conceded by the Respondent.

In the course of employment

6. Yu But was on duty from 8:00 p.m. to 12 midnight on the night of the killing. He left the bridge where he was on duty sometime after 10:00 p.m. and went into the crew's recreation room where he had a drink of tea or water, turned on the television and watched others played mahjong. He was there for sometime before he was stabbed by Choi Chi Chung. Yu But was having his usual watch break which was reasonably incidental to this employment. Thus at the time of the stabbing, Yu But was in the course of his employment (R. v. Industrial Inguiries Commissioner, ex parte AEU (No. 2) [1966] 2 Q.B. 31). This point is again conceded by the Respondent.

Arising out of employment

Presumption under S.5(6) of the Ordinance

7. Section 5(6) of the Ordinance provides that 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. Evidence in this context had been construed as evidence fit to be left to the jury (R. v. National Insurance (Industrial Injuries) Commissioner Ex. Parte Richardson [1958] 1 WLR 851).

8. There are a number of Hong Kong decisions dealing with this statutory presumption. In Tsang Yuk Chung v. China Fleet Club (W.C.C. No. 92 of 1972), a cook was killed as a result of a knife attack by a fellow cook in the kitchen. The evidence revealed that there was the sound of swearing by the other cook followed by loud noises. When the witnesses entered the Kitchen they saw the deceased on the ground being struck repeatly by the other cook. There was no evidence of any prior dispute or bad feeling between the two men. Bewley D. J. (as his then was) held that the presumption applied. He said,

    "Choosing between an inference that the attack arose out of a private dispute and an inference that it arose out of a dispute about cooking or some other matter connected with the deceased's work would be nothing more than a guess. I cannot say that there is evidence of the former which I could leave to a jury".

9. In Wong Gum Fook v. Mclean [1973] D.C.L.R. 75, the deceased was an amah whose body was found in her employer's premises. She had been murdered by strangulation and knife wounds. Nothing had been stolen but there was evidence of drawers in the bedroom and kitchen and the refrigerator door being opened. Hooper D.J. (as he then was) held that the presumption was discharged. He held that where a young amah was murdered in her employer's premises where she worked by strangulation and knife wounds and nothing was stolen, there was some evidence from which it was possible to infer that the accident was unconnected with her employment.

10. The Court of Appeal in Fong Fung Ying v. A.G. [1991] HKLR 133,  however, took a different view of the matter Sir Alan Huggins VP held that,

    "Nevertheless, it seems to us that, while the evidence in Wong Gum Fook v. McClean 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."

11. In Fong Fung Ying v. A.G. (supra), the worker was on his way to work from a restaurant which he had visited outside the course of his employment. However, instead of going directly to work he went to a public lavatory and was stabbed while he was there. The Court of Appeal found that that the accident had not occurred in the course of the employment, but if it had, it would have held that there was not sufficient evidence to negative the presumption.

12. In Fan See Yuk v. Ocean Tramping Co. Ltd., [1974] D.C.L.R. 1 the deceased met his death while employed as a seaman on a ship which was sailing at the time from Daker to Singapore. No person on board the ship withnessed his death. The employer claimed that the deceased committed suicide. Power D.J. (as he them was) held that the presumption applied. He said,

    "I do not consider that in a case such as this where there is no evidence of what actually happened and where the court is being asked to draw and rely upon inference where other possibilities are clearly open that it can be said that there is evidence which could be safely left to the jury."

   In Ma Yuet Yin v. Patt Manfield & Co. Ltd. [1980] D.C.L.R. 92, the deceased was employed as a motorman on board a vessel and was stabbed by a fellow seaman. There was no evidence of the relationship between the deceased and the assailant. His Honour Judge Jones As he then was) held that the presumption applied. He held that,

    "It is clear that the Court does not have to be satisfied, how the accident happened, but has to decide whether there is some evidence from which it can be properly inferred that the accident was not connected with the deceased's employment. There was no evidence to show whether the cause of the accident was attributable to the deceased's employment or to a private dispute. It is not possible to draw a proper inference from the facts one way or the other."

13. Miss Kwan, counsel for the Applicants, submitted that the presumption should apply in the present case. She accepted that there, was an argument between Choi Fai and Choi Chi Chung in the earlier part of the evening which resulted in a fight between them and Yu But had interceded and separated the two. She, however, submitted that it was a matter of speculation whether the quarrel and the stabbing was due to one cause or other or a combination of factors. She referred to the evidence which indicated that Choi Chi Chung's resentment of Yu But was not due or not entirely due to Yu But's intercession in the earlier fight but rather on catering fees.

14. Such evidence can be found in the cautioned statement of Choi Chi Chung (Bundle B Item No. 15) in which he stated that on that evening he had quarrelled with Yu But over the catering fee and had fought with him. He said that Choi Fai came and assisted Yu But in assaulting him. When he later returned to the Crew Mess Room, he again quarrelled with Yu But and shortly after, stabbed him. He did not mention the cause of the second quarrel.

15. Lo Chi Fat in his statement (Bundle B, Item 8) stated that he witnessed an argument between Choi Chi Chung and Yu But at about 7:00 p.m. but he had no idea why they argued.

16. Captain Taylor, the captain of the vessel, in his report (Bundle C, Item 6) stated that Choi Chi Chung together with some crew members had formed a clique which did not get on well with other crew members and this clique had an earlier dispute with other crew members about the food account. Initially three of this clique did not sign the food account, but the matter was, however, eventually resolved by the captain. He was, however, unable to ascertain the cause of the attack on Yu But and Choi Fai by Choi Chi Chung.

17. Mr. Waley, counsel for the Respondents, submitted that there is evidence to the contrary which would displace the presumption. He said that the evidence showed the likely cause of the stabbing was related to Yu But's earlier humiliation of Choi Chi Chung and was not related to the employment. He submitted that the incident between the parties was in two parts and one must look at them in total. The first part was in respect of the altercation that took place earlier that evening. He submitted that the fight occurred as a result of the quarrel between Choi Fai and Choi Chi Chung on who was more proficient in martial art and it had nothing to do with catering fee or other work related matter.

18. He referred to the statements of witnesses which dealt with the quarrel earlier that evening. Tsui Kin Yau [Bundle B Item 6] stated that Choi Chi Chung was in the crew's mess room drinking whisky and talked about "Kung Fu". At 6:45 p.m., Choi Fai walked into the room, heard Choi Chi Chung's talk about "Kung Fu" and had a conversation with Choi Chi Chung. The two of them got excited and suggested a competition in "Kung Fu". Eventually they got into a fight but were separated by others. Yu But intervened and locked Choi Chi Chung's neck with his hands and asked him not to fight. Yu But later released his hands but Choi Chi Chung got into a fight with him. Yu But eventually got hold of Choi Chi Chung's feet and hanged him upset down.

19. Liu Chui (Bundle B Item 9) stated that at about 7:00 p.m., Choi Fai, Choi Chi Chung and others were drinking wine in the crew's mess room. Choi Fai was observed saying to Choi Chi Chung that "We contest for friendship. It's just for fun. Don't bear it in mind." Choi Fai and Choi Chi Chung then got into a fight and both fell to the floor. Someone approached and separated the two. Yu But came in and grabbed Choi Chi Chung's neck and lifted him up by the feet.

20. Chan Hung (Bundle B Item 10) stated that Choi Chi Chung was drinking wine and talking about "Kung Fu". Choi Fai who walked into the room and asked him to have a contest in "Kung Fu". After some arguments, the two of them fought. Chan Hung and other crew members tried to separate them. Yu But also came in and intervened in the fight. He locked Choi Chi Chung's neck and separated the two.

21. Ku Kam Cheung [Bundle B, Item 2] after recounting that he heard the noise of people quarrelling and fighting, said that he heard Yu But said "I was just separating you".

22. Hung Ching Cheung [Bundle B Item 4] recounted the fight between Choi Fai and Choi Chi Chung. He also saw Yu But locked Choi Chi Chung's neck with his hands. After Yu But released his hands, Choi Chi Chung said to Yu But "You lock my neck and I'll beat you to death."

23. Lam Siu Keung [Bundle B Item 5] separated Choi Fai and Choi Chi Chung in the fight and he also separated Yu But and Choi Chi Chung. He said he did not know if Choi Fai and Choi Chi Chung had any grudge against each other before.

24. The second part of the incident was in relation to the stabling of Yu But and Choi Poi by Choi Chi Chung. Mr. Waley submitted that the only logical reason for the attack on Yu But was related to the earlier incident. He submitted that there is more than enough evidence fit to be left to the jury and upon which they could draw. an inference that the killing of Yut But was related to the quarrel and fight that took place because of arguments on 'Kong Fu' and Yut But had severely humiliated Choi Chi Chung in the fight. He submitted that it is for the jury to decide whether the killing was related to catering fees or the  earlier fight and he submitted that, on a balance of probability, it was related to the martial art argument which was a personal dispute and not related to the employment ol Yu But.

25. He further submitted that the account of Choi Chi Chung of the accident did not accord with the other accounts. Similarly he said that Lo Chi Fat's account did not accord with the accounts of other witnesses. He submitted that Captain Taylor's report was based on hearsay. There was no evidence showing Yu But was in charge of the food account and in any event the clique did sign the food account (Bundle C Item 26).

26. Miss Kwan, however, submitted that it was doubtful if what took place earlier in the evening concerning martial art was the real cause of Choi Chi Chung's resentment which led to the stabbing of Yu But. She submitted that the quarrel and fight was between Choi Fai and Choi Chi Chung and Yu But had merely intervened and separated the two. If Choi Chi Chung was upset by the martial art incident he should be angry with Choi Fai as well. Yet, from the facts of the case it could reasonably be inferred that Choi Chi Chung's anger was not directed primarily at Choi Fai. Choi Fai was killed because he confronted Choi Chi Chung after Yu But was stabbed. She referred to the statements of Tsui Kin Yaw, Liu Shui and Chan Hung which indicated that after the fight, Choi Chi Chung had returned to the crew Mess Room and remained there for sometime drinking beer and he   had not bothered Choi Fai who was playing mahjong in the adjoining Crew Recreation Room. Choi Chi Chung only went into the Crew Recreation Room with the triangular file when he saw Yu But entered. His object was Yu But not Choi Fai.

27. The issue to be considered is whether there is evidence which is not speculative or flimsy in nature and from which the jury could draw the inference that the stabbing of Yu But was not an accident that arose out of his employment. If so, the presumption that the accident arises out of his employment will be rebutted. There is no evidence showing the cause of the stabbing. The witnesses did not mention that there was any quarrel or argument between Yu But and Choi Chi Chung immediately before the stabbing. However, I agreed with Mr. Waley that one must consider all the events that took place that evening including the earlier quarrel and fight. The events took place between the same parties and occurred closely together. The episode of the earlier quarrel and fight certainly shed light as to the likely cause of the stabbing of Yu But. Unlike the situations in the cases I have earlier referred to and in particular Wong Gum Fook v. McLean (supra) where the evidence may have been sufficient to make one speculate whether the murder did arise out of the employment but was not sufficient to justify a jury in drawing the inference that it did not, the evidence in the present case as what took place earlier that evening is clearly sufficient in enabling the jury to draw the inference that the stabbing was related to a personal dispute : the public humiliation of Choi Chi Chung by Yu But who had intervened in the fight. In my view the evidence is of such a nature that the jury is entitled to draw the inference that the stabbing of Yu But did not arise out of his employment. No doubt Choi Chi Chung's claim that he had a quarrel with Yu But on catering fees could not be ignored. He, however, had compressed all the events that happened that evening into one episode. While the Agreed Facts and the statements of witnesses clearly showed that there was a interval of a few hours between the earlier fight and the stabbing of Yu But, Choi Chi Chung claimed that he stabbed Yu But shortly after the earlier fight. As a matter of fact he claimed that the fight was with Yu But following the argument with him on the catering fees and it was Choi Fai who helped Yu But in assaulting him. This is not in accordance with the evidence of the other statements. Even allowing the argument of the catering fees, this would be one of the matter for the jury to take into consideration after hearing all the evidence. There is cogent evidence which is fit to be left to the jury and from which they could infer that the stabbing of Yu But was due to personal grudge and not to employment. For this reason, I find that the presumption has been discharged.

Was Yu But's death an accident that arose out of his employment?

28. Counsel referred to a great number of cases on the question of how an accident may arise out of the employment.

29. A starting point is Board of Management of Trim Joint District Board v. Kelly (supra), where an unpopular master in an industrial school was assaulted by a number of boys and died as a result. Lord Loreburn held at page 680 that,

    "This unfortunate man was killed because it was his duty to maintain discipline in a school, and while he was actually doing his duty there."

At page 682 he, held, that,

    "I cannot attach weight to another argument of Mr. Sankey, that the risk of being killed by schoolboys is not to be regarded as incidental to or arising out of a schoolmaster's employment because no one would contemplate so extraordinary an occurrence. This argument illustrates the danger of trying to convey what an Act means by using expressions which are not found in it. I do not repent of having myself, as have other judges, in trying to convey my thoughts, spoken of risks incidental to an employment, but that does not mean merely risks which ordinarily occur in it. For the future however, in order to prevent misapprehension, I shall confine myself to the actual words of the text. The words are "arising out of." Whether a particular mishap is likely to occur or likely to be feared or foreseen seems to me a different inquiry's In inquiring whether or not an injury by accident in fact arises out of the employment, it surely is unnecessary to ask such a thing has ever happened before or is likely to happen again within, say a hundred years, or, for that matter, forever. It may happen, and has happened, and it has happened because the poor man was a school master. The event has proved that it arose out of his employment. I can see no reason for saying that there is no compensation only when the misadventure was one which would be foreseen as probable, or contemplated as possible, or other wise apprehended either by the workman or by his employer, or by a county court judge. All this has, in my view, no conclusive bearing on the simple question, did it in fact arises out of the employment (emphasis added)."

30. In Dennis v. White [1917] A.C. 480, a boy in the employ of a firm of builders was ordered to go through the streets of London on a bicycle to fetch some plaster. He came into contact with a motor car and was injured. it was held that the injury arose out of employment. Lord Finlay L.C. held at page 482 that,

31. 'If the injury is the result of an assault, it is material to show that the employment is such as to involve liability to such mishaps; as in the case of a game keeper or watchman : see Mitchinson v. Dav Brothers [1913] 1 K.B. 603 and Weeks v. Stead & Co (1914) 7 B.W. C.C. 398. Where the risk is one shared by all men, whether in or out of employment, in order to show that the accident arose out of the employment, it must be established that special exposure to it is involved. But when a workman is sent into the street on his master's business, whether it be occasionally or habitually, his employment necessarily involves exposure to the risk of the streets and injury from such a cause arises out of his employment. There is nothing in the Act about any necessity for showing that the employment involves an extra or special risk, and once it is clear, as it is in the present case, that the accident was the result of a risk necessarily incidental to the performance of the servant's work, all inquiry as to the frequency or magnitude of the risk is irrelevant."

32. In Lancashire & Yorkshire Railway Co. v. Highley [1917] A.C. 352, Lord Sumner at page 372 held that,

    "Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of employment, or was one of the ordinary risks of the employment, or, conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury."

33. Dover Navigation v.Craig [1940] A.C. 190 was a case where a seaman contacted yellow fever and died while serving on board his employer's steamship which called at West African ports, where he was specially exposed to the risk of infection from disease bearing bacteria. Lord Atkin at pages 196 and 197 held that,

    "In my opinion, this particular risk of injury by accident was inherent in the nature of the employment; it was necessarily incident to the performance of the sailor's risk... A seaman may be directed to serve in places abroad where the forces of nature, heat, cold, flood and tempest, cause much greater risk of injury than they do at home. In such cases I personally doubt whether the fact that persons ordinarily to be found in the locality are exposed to such risks is of any importance. They are exposed to the risk as residents in the area; he' is exposed to the risk because he is required by his employment so to expose himself."

34. Lord Wright at page 199 held that:

    "It has been established by various decisions of this House that the Workmen's Compensation Act is a remedial measure, intended to give rights beyond what the Common Law gave, and that it is a practical measure expressed in non-technical language, to be construed according to the ordinary sense of mankind. Nothing could be simpler than the words "arising" "out of and in the course of the employment. It is clear that there are two conditions to be fulfilled. What arises "in the course" of the employment is to be distinguished from what arises "out of the employment." The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified. I do not know that attempts to amplify the language or define the dividing line have been very illuminating, though help in deciding any particular problem may be obtained by examining actual reported cases, not generally as laying down principles of law but as showing how in particular circumstances of fact the dividing line has been drawn. It is not legitimate to seek to write into the section definitions and limitations which the Legislature have not thought fit to insert.''

35. He continued at page 201 that,

    "It would be futile to attempt to cite or reconcile all the decisions on the constructions of these words of section 1. They are often merely decisions of fact though some seem to involve reading into the section words which are not there or ideas which are not expressed in it. Indeed in cases of this type once the actual facts are ascertained it is for the Court to ask itself whether on those facts the accidental injury arose out of the employment (emphasis added)".

36. In Powell v. Great Western Railway Co [1940] 1 All E.R. 87, a fireman employed by a railway company, being at on his engine carrying out his duties, was hit by a pellet from an airgun deliberately aimed at the engine by a boy of 19 years of age. It was held that the man's work brought him to the place where there was the risk of being injured by a pellet from the airgun, and the accident, therefore, arose of the employment.

37. In Parker v. Federal Steam Navigation Co. Ltd (1925) 18 B.W.C.C. 469, the workman was employed as a stoker on board a ship.He was working with an African stoker when he accidentally touched the African with the handle of his barrow. This so enraged the African that he assaulted the workman and injured him. The county court judge held that the assault arose out of the employment : the risk of assault was inherent in the employment, as the workman's work brought him into contact with the African who had the "wild, undisciplined and untrained nature". The Court of Appeal held that there was evidence to justify the finding.

38. In Holden v. Premier Water Proof Rubber. Co Ltd (1930) 23 B.W. C.C. 460, a worker was murdered at his place of work by a fellow-workman who suddenly developed homicidal mania. It was conceded by the worker's dependant who sought compensation that the deceased was not, as a labour worker, peculiarly exposed to the special risk of being attacked by a fellow worker. Lord Hanworth M.R. held that.

    "There has not been any act, or failure, or omission on the part of the employers which enables one to say that the accident, which was due to McGough (i.e. the worker who became insane) was attributable to the employers and in respect of which they must be held liable"

39. In the New Zealand case of Farrell v. De Pelichet McLeod and Company Limited [1951] N.Z.L.R. 780, the Plaintiff during work uttered a remark which a co-worker thought referred to him. It was an expression likely to cause offence, The co-worker asked the Plaintiff what he meant by the remark. The Plaintiff replied and was then struck by the co-worker. Ongley J. distinguished Parker (supra), by saying that the trouble there arose out of the wheel-barrow incident, an incident of the employment, whereas in the present case he held that,

    "The trouble and injury that resulted were caused by the remark, not by the quick temper.... It was not part of the Plaintiff's employment, and no part of his duty to his employer, to make the remark."

40. In another New Zealand case, Ruth v. Union Steam Ship Company of New Zealand Limited [1953]  N.Z.L.R. 218, the Plaintiff was working at a railway wharf, attending to a coal hopper. A lorry, coming to the hopper at which the Plaintiff was working, was not brought into a satisfactory position under the coal chute, and the plaintiff asked the driver to come in closer. The driver refused. The Plaintiff then said that, if the driver would not come in closer, he, the Plaintiff would have kept the door of the chute closed till the driver put his lorry into a proper position. The driver immediately assaulted the Plaintiff. It was shown that there had been other assaults by drivers of motor vehicles in somewhat similar circumstances. The Plaintiff himself was assaulted by a driver 5 year previously. Dalglish J. held that,

    "Put another way, before a worker can recover in respect of an assault he must show a risk of being assaulted - a degree of 1iabi1ity to be assaulted such as would not be present if he were not in the employment.... It was part of Plaintiff's job to see that the motor vehicles brought to his hopper were in correct position to receive their loads and the assault in this case arose directly out of a proper request made by him as part of his job".

41. In the Australian case of Nunan v. Cockatoo Docks & Engineering Co. Ltd (1941) S.R. (N S.W.) 119 a worker employed as a painter on an unfinished ship, entered a room in the vessel, used as a paint shop, in which a fellow worker was at the time enamelling. Paint from the brushes which the worker was cleaning splashed on to the enamel and the fellow worker asked the worker to be careful. When the worker refused and went on cleaning, the fellow-worker struck him and caused his shoulder to come in contact with part of the room and as a result the worker sustained injury. Jordan C.J. held that the injury arose of the employment. He accepted the finding of the workers' Compensation Commission that the fact that the worker was engaged in the particular job caused or materially contributed to both the assault and the injuries which resulted from it. At page 124 he held that,

    "The present case is one in which the worker was injured through being assaulted. The injury admittedly arose in the course of his employment, and the question is whether there is any evidence on which the Commission could find that it arose out of his employment. We have been referred to a number of cases in which there have been claims arising out of assaults on workers. These do not stand in a class by themselves, but are all instances of applications of the language of the Act to the facts of particular cases. If, for example, a private enemy of a worker assaults and injures him when he happens to be at work on his employer's premises, the assault arising out of something unconnected with the employment, and there being no other relevant facts, it is clear that the injury does not arise out of the employment. In such a case, the additional fact that the worker was knocked down by the blow and received injuries through striking the floor or the wall of his employer's premises would not alter the position and make the employer liable on the footing that it was a "locality" injury. There are, however, cases in which it has been held that the position is different if, in such a case, the worker's employment put him in proximity to some special danger which existed on the employer's premises, and, as the result of the assault, he received injuries through the presence of the danger : of Shaw (Glasgow) Ltd. v. Macfarlane [1915] S.C. 273. Again, if the employment is such as to bring the worker into association with people of a disorderly and violent type, or to expose him to the risk of being assaulted and robbed whilst on his employer's business, these matters have been held to justify the inference that the fact that he was employed in the particular job caused or contributed to the injury : Reid v. The British and Irish Steam Packet Co. Ltd [1921] 2 KB 319; Nisbet v. Ravne & Burn [1910] 2 KB 689. But there is nothing in the Statute to suggest that the inference is permissible only in cases coming within these classes. It may be drawn from any set of facts upon which it is open as a matter of common sense."

42. The cases revealed that various glosses had been put on the term "accident arising out of employment": risk incidental to the employment; risk inherent in the employment; an ordinary risk of the employment; a special risk of the employment to which other persons were not subject to. However, the ultimate question is whether on the facts of the case, the applicant has discharged the burden of showing that the accident arises out of the employment. The cases concerning assault on worker do not form a special category by themselves and it is futile to reconcile the cases, as they are merely decisions of facts. However, the dictum of Lord Hanworth MR in Holden (supra), which virtually assimilated the test of liability in workers' compensation cases to the common law test of negligence on the part of the employer, is not in accordance with, for example, the principle stated by Lord Loreburn in Trim (supra). The New Zealand and Australian cases showed that an injury would arise out of the employment if it arises from a dispute relating to the work in hand.

43. It is for the applicant to establish on a balance of probability that the assault of Yu But arose out of his employment. Miss Kwan urged me to consider the special feature of the case, namely the crow members were in continuous employment on board the ship, Adopting the dictum of Ormrod L.J. in Paterson v. Costain [1979] 2 Lloyd's Rep. 204, she said that the crew members were living in quarters provided by the employmers, fed, watered and administered in every detail by the employers. This necessarily brought into close contact with each other in a restricted environment during the voyage of the ship. She submitted that disputes between crew members were less likely to become stale as in an ordinary employment situation. Yu But's manner of intercession between Choi Chi Chung and Choi Fai in the marrial art dispute might or might not have aggravated the grudge of Choi Chi Chung against him over the catering fee. Approaching the matter in a broad common sense manner, she said that it would be wholly unrealistic to attribute the stabling of Yu But solely or substantially to his intercession in the martial art dispute. She submitted that the New Zealand cases were too legalistic and should not be followed.

44. No doubt, the working and living conditions of the crew members on board the ship would put them in close proximity with each other. However, this factor is not one that really affects the issue the court is facing. Although there was no oral evidence adduced, the evidence, as disclosed by the various witness statements, revealed, on a balance of probability, that the stabbing of Yu But followed from the earlier quarrel and fighting between the parties. The evidence showed that the quarrel started between Choi Chi Chung and Choi Fai on the question of martial art and not, as alleged by Choi Chi Chung, between him and Yu But on catering fees. It may well be that there was an earlier disagreement on catering fees but the events that took place on the evening of the accident clearly showed that accident arose out of the earlier quarrel and fighting which was personal disputes and therefore did not arise out of the employment. I do not consider that the New Zealand decisions to be overly restrictive. They are merely illustrations of how the court arrived at a conclusion given the facts of the case. In any event it is for the Applicant to show that the killing of Yu But arose out of his employment. In the light of the evidence of the earlier quarrel and fight, the Applicant has not been able to establish that the death of Yu But arose out of a matter connected with his employment i.e. the dispute on catering fees.

45. I find that the Applicant has not established that the death of Yu But was an accident that arose out of his employment. I shall, with regret, dismiss the application by the dependant of Yu But in seeking employee's compensation for his unfortunate death.

Law Reform

46. It is to be noted that section 55 of the English Social Security Act was introuduced in 1961 to reverse the decision of R.v. National Commissioner ex. p. Richardson (supra), which refused a bus conductor's claim for benefit on the ground that his injury did not arise out employment. The conductor was assaulted by a gang of teddy boys and it was held that he was not singled out because of his job (see Lewis : Compensation for Industrial Injury, page 86)

Section, 55 is as follows:

(1) An accident shall be treated ... as arising out of an employed earner's employment if

(a)     the accident arises in the course of the employment; and

(b)    the accident either is caused by another person's misconduct, skylarking or  negligence, or by steps taken in consequence of any such misconduct, skylarking or negligence, or by the behaviour or pretence of an animal (including a bird, fish or insect), or is caused by or consists in the employed earner being struck by any object or by lighting; and

(c)    the employed earner did not directly or indirectly induce or contribute to the happening of the accident by his conduct outside the employment or by any act not incidental to the employment.

47. In New South Wales of Australian, the Workers Compensation Act 1926 was amended in 1942. Whereas the previous requirement was that the injury should arise both out of and in the course of employment, in the 1942 amendment the word "or"was substituted for "and" the conditions became alternatives (see Mills : Workers Compensation New South Wales Para. 38)

48. The benefit to the workers under these provisions is only too obvious. In my view, this is an area where amendment should be introduced in Hong Kong to follow, if not the Australian model, at least the provisions introduced in England.

Choi Fai : Arising out of the employment

49. It is accepted by the Respondent that the death of Choi Fai was an accident that arose in the course of his employment.

50. Miss Kwan submitted that Choi Fai was attempting to deal with a violent situation which occurred suddenly when Choi Chi Chung stabbed Yu But. He acted upon an emergency to protect the safety of another crew member. He was not the aggressor. He came under an implied emergency duty and his injuries were sustained in the course of and arising out his employment. She referred to a number of cases dealing with emergency. Alternatively, she submitted that the stabling of Choi Fai was deemed to arise out of and in the course of his employment by virtue of Section 5(5)(c) of the Ordinance which is as follows:

5(5) where an employed meets with an accident -

(a) -

(b) -

(c) in, out or about his employer's premises while engaged in any first aid, ambulance or rescue work.

whereby such employee sustains injury, such injury shall, for the purposes of this Ordinance, be deemed to arise out of and in the course of his employment, notwithstanding that in the case of rescue work the employee was acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employee, if when such act was done the employee reasonably acted in order to rescue, succor or protect any other person who had suffered, or who was reasonably believed to be in danger of, injury, or to avert or minimize serious damage to property of the employer.

51. Miss Kwan submitted that emergency duties were written into the Terms of Service and the crew member might be required to perform emergency duties in situations affecting the safety of the crew. (Bundle C, page 13).

52. Mr. Waley submitted that the evidence showed that Choi Fai was acting on his own in the attack and not to rescue Yu But. He referred to the events that took place earlier that evening which showedthat the existence of the grudge between the parties was not related to work. He submitted that the words uttered by Choi Fai 'That's enough from you' was the remark of a person going to attack another and not that of someone going to rescue a colleague.He drew my attention to the absence of expressions such as "Stop", "Don't do that" or "What are you doing" or anything of such a nature which one would expect in an emergency or rescue situation. He submitted that if Choi Fai was not acting in support of Yut But then his act would not be for the benefit of his employer and the emergency rule and the presumption under Section 5(5)(c) would not arise.

53. In Rees v. Thomas [1899] 1 Q.B. 1015, a fireman employed in a coal mine was in the course of his duty carrying a report of the state of the mine from the pit's mouth to the office; the horse drawing the tramway truck in which he was riding ran away, and in endeavouring to stop it he fell and was killed. A.L. Smith L.J. held that,

    "But the deceased was acting in the interest of his master in  an emergency which suddenly arose, a nd in which anyone would, I should think, have tried to do the same thing. I think, therefore, that the accident arose out of his employment ....."

54. In Culpeck v. Orient Steam Navigation Co. Ltd (1922) 15 BWCC 187, a worker was employed as a baker on board a steamer and when the steamer was at Port Said, he went on deck for fresh air. He heard an Egyptian using very foul language to two English lady passengers who had accidentally brushed against him. The baker told the Egyptian to stop and threatened to have him turned off the steamer if he did not stop. The Egyptian drew out a knife and attacked him. The worker in self-defense used his fists and struck the Egyptian a severe blow in the face. The worker, in striking the Egyptian, cut his knuckles against the Egyptian's teeth, in consequence thereof, blood-poisoning set in which resulted in his total incapacity. Lord Sterndale M.R. held that,

    "I myself think that there is an implied duty on the part of the members of che crew of a ship, in an emergency, to protect the passengers committed to their employer's care, and although in a case like the present they might not feel called on to interfere in order to protect men from insult, yet I think they would naturally feel it incumbent on them as part of their duty to interfere to protect lady passengers from an insult".

55. In Mckenzie and Another v. William Holyman & Sons Pty Ltd (1939) 61 CLR 584, the deceased seaman fell into the sea and was drowned while holding a lantern to enable other seaman to rescue a fellow seaman who had earlier fell into the sea. Rich J. held that,

56. "In "emergency" cases it is difficult to answer the question, "Am I my brother's keeper?" or to set a limit to altruistic efforts. The decisions are numerous and the facts infinitely different. I think we should not be "curious and almost subtil, astuti" - to use Lord Hobart's words in Earl of Clanrickard's Case (1616) Hob 273 - to invent tests by which cases of this kind may be determined. I am content to say that on the evidence it was a necessary or reasonable act for the deceased to perform and sufficiently connected with the business of his employer".

57. McTiernan J. had that,

    "The case falls within the principle under which it is held that an accident which happens to a workman in the course of doing something in an emergency which he may reasonably have thought it a duty of an employee to do arises out and in the course of doing something incidental to the employment. "

58. In Foster v. Dunlop New Zealand Limited [1951] N Z L R 765, a worker after finishing work, left his factory; shortly afterwards, a fire was noticed in the yard of the factory. The worker saw the smoke and hurried went back to the fire. He was out of breath when he got back, and the fire brigade arrived at the same time at he did. He died that evening. It was not in dispute that his death was the result of hurrying back to the fire.

59. Ongley J. held that the emergency provision was subject to the qualification whilst engaged in his employment and on his employer's work". He was of the view that the duty of the deceased worker ended when he left the factory premises on his way home, and, accordingly, he did not come within the emergency rule, and the accident did not arise in the course of his employment. He, however, did not actually decide the question but referred the case to the court of appeal.

60. In the present case, although Choi Fai was also involved in the earlier quarrel and fought with Choi Chi Chung, a different consideration should apply to his case. I accept that there is an implied duty on the part of a worker, in an emergency, to protect the safety of fellow worker. It certainly is in the interest of his employer to rescue a worker from danger. There was a mergency in the present case when Choi Chi Chung suddenly stabbed Yu But with the triangular file. One is entitled to infer, on the evidence, that Choi Fai confronted Choi Chi Chung for the purpose of stopping him from injuring Yu But.

61. I do not accept Mr. Waley's contention that the words 'That's enough from you' was a indication that Choi Fai was going to attack someone and not of rescuing a colleague. It was after all a highly charged situation. One must not set a limit to altruistic efforts. To use the words of Rich J., the act of Choi Fai was a necessary or reasonable act for him to perform and sufficiently connected with the business of his employer. Furthermore, I am of the view that the present case falls within Section 5(5) (c) of the Ordinance : Choi Fai met an accident on board his employer's ship where he had acted reasonably in order to rescue, succor or protect Yu But who had suffered injury.

62. I find the Applicant has established that the death of Choi Fat was an accident that arose out of and in the course of his employment. I shall give judgment to the dependant of Choi Fai accordingly.

Conclusion

Yu But

1.     The application is dismissed with costs to the Respondent.

2     The Applicant's own costs is to be taxed in accordance with Legal Aid Regulations.

Choi Fai

1.    Judgment to the Applicant in the sum of $299,000.

2.    Interest at 5% p.a. on the sum of $299,000 from 20th August 1987 to date and thereafter at judgment rate until payment.

3.    The Respondent is to pay the Application the costs of the application.

4.    The Applicant's own costs is to be taxed in accordance with Legal Aid Regulations.