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Lai Fong And Another v Shun Fung Ironworks Ltd

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date17 January 1977
CourtDistrict Court (Hong Kong)
Judgement NumberDCEC101/1976
Subject MatterEmployee"s Compensation Case
DCEC000101/1976 LAI FONG AND ANOTHER v. SHUN FUNG IRONWORKS LTD

DCEC000101/1976

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO.101 & 100 OF 1976

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LAI FONG Applicante
YEUNG YIP-CHUN
and
SHUN FUNG IRONWORKS LTD. Respondent

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CORAM: JUDGE GARCIA IN COURT

Date of Judgment: 17th January 1977

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JUDGMENT

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1. These two applications arise out of the same incident and for the purpose of the present proceedings, are consolidated, both applicants being workmen of the Respondents, the Shun Fung Ironworkds, Ltd.

2. The first application is made by Mr. Yeung Yip Chun of 511 Wang Tau Hum Estate, Block 24, Kowloon, and at the time of the accident to which his application relates, was employed as a melting furnace worker at the Respondents' mill at Junk Bay, New Territories, earning $22 per day.

3. The second application is made by Mr. Lai Fong of 580 Wang Tau Hum Estate, Block 20, Kowloon, and at the time of the accident was employed also as a melting furnace worker at the same mill at a wage of $25.50 per day.

4. On the 19th day of November, 1976, the two applicants were on duty at the said mill, their hours of work that day being between 8 p.m. to 8 a.m. the following day, that is 20th November, 1976. From their evidence, it appears that the two applicants and other workmen in the Section in which they were employed had finished their work shortly after 4 a.m., but before 5 a.m. that morning, and at the time of the accident were lying on a wooden board which was placed on the floor near to where they had been working, and in that position went to sleep. They intended to remain there until 8 a.m. when their tour of duty ended and then leave the mill and return home.

5. Whilst they were alseep in that area, both the applicants where assaulted by a fellow workman by the name of Au Chui Wan, for no apparent reason whatsoever because both of them say that they had never quarrelled with Au prior to the accident. They were also unable to assign any reason whatsoever for the assaults committed on them by Au. Furthermore there is no history of any bad feeling or enmity between the applicants and Au, nor is there any evidence to indicate that Au had acted abnormally either before or after the assaults.

6. As a result of the assaults on them, Mr. Yeung suffered a deep laceration on the left forehead with a depressed fracture of the skull underneath, plus a 2" long laceration behind the left ear with linear fracture of the skull underneath, whilst Mr. Lai suffered multiple lacerations on his right forehad and a severe compound depressed fracture of the right frontal and temporal regions with brain substance oozing from the wounds. There is no doubt that the injuries sustained by both applicants were extremely serious and indeed it is remarkable that both of them are still alive.

7. On 13th April, 1976. Mr. Lai attended a medical board and he was found to have suffered permanent injury as follows: (1) Functional loss of right eye vision; (2) Disfigurement of the right skull; and (3) Residual damage to the right brain. His permanent incapacity was assessed at 50%.

8. On 27th July, 1976. Mr. Yeung attended a Medical Board and he was found to have a skull defect to the left frontal region and his permanent incapacity was assessed at 10%.

9. These applications for compensation under the Workmen's Compensation Ordinance are opposed on the ground that the accidents did not arise out of or in the course of their employment.

10. It has been submitted that on the facts as presented by the applicants it is at least arguable that the accidents did not arise in the course of their employment because they were sleeping at that time and that they had finished their work. There is some authority to support the proposition that on the evidence adduced by the applicants, the accidents did not arise in the course of their employment. In Charles R. Davidson & Co. v. M'Robb or Officer (1918) A.C. 304, it was stated by Lord Finlay that 'in the course of the employment' does not mean during the currency of the engagement but means in the course of the work which the workman is employed to do and what is incident to it; and absence on leave for the workmen's own purposes is an interruption of the employment. Again it was stated that 'in the course of employment' must mean similarly in the course of the work which the man is employed to do and what is incident to it; in other words, in the course of his service." It cannot be said that sleeping on the premises of the mill whilst waiting to go home after their period of duty was over is incidental to their employemnt, since there is no evidence to indicate that such an activity was usual or normal or that such activity was permitted by the employers as part of the workmen's contract of employment.

11. However, the principal question which arises in these proceedings is whether a workman who is assaulted and injured by a fellow workman, if, whilst engaged in...

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