Ma Kit Ching Veronica v Attorney General

Court:Court of Appeal (Hong Kong)
Judgement Number:CACV64/1983
Judgment Date:02 Nov 1983
CACV000064/1983 MA KIT CHING VERONICA v. ATTORNEY GENERAL

CACV000064/1983

Headnote

1. An employee who has to take accommodation away from his home in order to be able to carry out his duties and sustains an accident therein is not within the course of his employment unless by the obligations of his contract he is required at that time to be in that particular place

(Applying London & North Eastern Railway v. Brentnall, [1933] A. C. 489 and Alderman v. Great Western Railway Co., [1937] A. C. 454).

2. The Employees Compensation Ordinance, Cap. 282, does not apply to accidents occurring beyond the jurisdiction, save as is expressly provided therein

(Following Tomalin v. S. Pearson & Son Ltd., [1909] 2 K. B. 61 and Schwartz v. The India Rubber, Gutter Percha and Telegraph Works Co., Ltd., [1912] 2 K. B. 299).

IN THE COURT OF APPEAL Civil Appeal
No. 64 of 1983

BETWEEN

MA Kit Ching, Veronica

Appellant (Applicant)

and

The Attorney General

Respondent (Respondent)

_____________________

Coram: Hon. Huggins, V.-P. Cons & Fuad, JJ. A.

Dates of Hearing: 1st, 2nd November, 1983.

Date of Judgment: 2nd November, 1983.

___________

JUDGMENT

___________

Cons, J.A.:

1. This is an appeal from the dismissal of a widow's claim under the Employees Compensation Ordinance. The essential facts are succinctly expressed by the learned Deputy Judge below:

"This case concerns a fatal accident to Mr. Anson CHE Tak-ying, an officer of the ICAC, who died in a guesthouse in Edinburgh, some time between 11 p.m. on 11th February and 10:30 a.m. on 12th February 1982. The cause of death was acute carbon monoxide poisoning due to a blocked flue behind the gas fire in his bedroom. The reason for his being in the United Kingdom at that time was that he was fulfilling a programme of duty attachments and training courses arranged for him by the ICAC. He had been nominated for this course, and had agreed to go, although not obliged to do so, and it is agreed that the programme was undertaken for the purposes of and in connection with his employment with the ICAC. At the time of his death he had just completed one duty attachment in Manchester, on the morning of 11th February, and he was due to commence another attachment at 10:30 a.m. on 12th February in Edinburgh."

I may add that Mr. Che was entitled to a subsistence allowance towards the cost of his accommodation and that he was most probably already asleep in that accommodation at the time he died.

2. The proceedings raise two question. The first is whether Mr. Che was, at the time of his death, in the course of his employment. The second is whether the ordinance has any application at all in the particular circumstances.

3. Mr. Neoh has presented his argument in a variety of attractive guises, but I think it fair to say that all are variations on an original theme, namely, that where a person is required by the terms of his employment to be, for a limited period of time, in a place or places away from his natural home environment, so that he has to lodge in hotels or other accommodation, then, unless he sets out on a personal frolic of his own, that is to say, on something unnecessary to what he is reasonably expected or authorized to do, it follows that at all times within that limited period, whatever he is doing, eating or sleeping or anything else, he is within the course of his employment. Mr. Neoh seeks to equate the position of such an employee with that of the domestic servant referred to in the well known speech of Lord Dunedin in Davidson v. M'Robb(1), where, referring to the phrase "in the course of employment" he said :

"It connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work - e.g. in the workman's case the taking of meals during the hours of labour; in the servant's, not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master's roof."

The one, as Mr. Neoh graphically puts it, is as much the prisoner of his employment as the other is a prisoner in his master's house.

4. It seems that the argument would be received with favour in the State of New South Wales and in some jurisdictions of the United States of America. In Baudoeuf v. Department of Main Roads (2), from the Court of Appeal, New South Wales, a chainman, who was engaged to survey rough country, in order to be reasonably close to his...

To continue reading

Request your trial