Employees’ compensation – Bartender murdered by a customer – Whether fatal accident was in and out of the course of employment – Employees’ Compensation Ordinance (Cap 282)

CHEUNG SHUK WAH JESSICA v WONG KANG HUNG DARWIN T/A NEW VOICE PUB [2009] 6 HKC182

District Court
Employees’ Compensation Case No 842 of 2007
Judge Leung
8, 9 April, 9 July 2009

Ashok Sakhrani (Director of Legal Aid) for the applicant.
Ronald Tang (W H Chik & Co) for the respondent.

The deceased, Man Chung Wah (Man) was a bartender at a pub in Shatin, New Territories. An argument arose between a waitress (Elle) and a group of customers. Man intervened, and stopped one of the customers from attacking Elle with a bottle. Man then accompanied Elle after work to meet her boyfriend. Whilst Man and Elle were on the way, two customers attacked Man with knives. Man was fatally wounded and died. The customers were apprehended, prosecuted, convicted and sentenced to life imprisonment for murdering Man. Cheung, the widow of Man applied for compensation against Man’s employer pursuant to the Employees’ Compensation Ordinance (Cap 282).

Held, allowing the application:

So long as it could be said that the activity upon which the workman was engaged was reasonably incidental to the work that he was employed to do, his course of employment could extend beyond the normal hours or place of work.

The court adopted a liberal meaning to what was reasonably incidental. This could be extended to acts which were habitually done by an employee to the knowledge of the employer without question. In a changed social matrix, the foundation of an employment relationship was no longer based on orders and instructions or requests and information. The contractual rights and duties were often supplemented by mutual expectations of co-operation.

Here, Man was the longest serving employee of the respondent. His duties exceeded those of a bartender. He was the one who supervised the operation and other employees when the respondent was not at the pub. On evidence, the respondent agreed that as an employer he should ensure that his staff left work safely. Given the nature of the business in question and Man’s duties at the pub, the court was satisfied that, whether expressly required or not, Man was expected to ensure his colleagues’ safety when leaving work in the same way as the respondent would have when he was at the pub.

Hence, when accompany ing Elle, Man was performing what  was reasonably incidental to his responsibility. The responsibility was necessitated by the circumstances peculiar to his employment, generally and specifically due to the dispute with the customers earlier on that day. Man’s course of employment continued to run its course until he left Elle at the destination where she was meeting her boyfriend.