Employees’ compensation – Whether employees have the express or implied permission of the employer to take alternative transportation – Employees’ Compensation Ordinance (Cap 282) s 5(4)(g)

Employees’ compensation – Course of employment – Resumption of the course of employment after a temporary detour – Lack of prohibition or limitation on taking detours on personal business – Whether detour to karaoke parlour operated to take the whole of the return journey out of the course of employment – Employees’ Compensation Ordinance (Cap 282) s 5(4)(g)

CHAN HO YUEN (陳浩源) v MULTI CIRCUIT BOARD (CHINA) LTD (貿泰電路版(中國)有限公司) [2011] 5 HKC 565

Court of Appeal
Civil Appeal No 216 of 2010
Tang VP, Kwan and Fok JJA
14, 30 September 2011

Neville Sarony SC and Yeung Ming Tai (Or & Lau) for the applicant/appellant in CACV 216/2010, and (Tsang, Chan & Woo) for the applicant/appellant in CACV 217/2010.
Kumar Ramanathan SC and Andrew SY Li (Munros) for the respondent/respondent in both appeals.

On 5 February 2008, Mr Chan and the deceased attended the annual dinner of their employer’s factory in Shenzhen. The annual dinner finished at around 9:00 pm. After the dinner, instead of joining the other colleagues to come back to Hong Kong, they paid a visit to a karaoke parlour with a colleague Mr Lee. They left the karaoke parlour at around midnight, and Mr Lee drove Mr Chan and the deceased in his car to the Shenzhen border. On the way to the border, the car crashed into a barrier and as a result of which, Mr Chan suffered serious injuries and the deceased died in the accident. The evidence showed that the employer had a system of transportation arrangement for its employees the night of the annual dinner, as well as in the ordinary course of employment. Mr Lee’s car was privately owned, and used by him as transportation to and from the border in weekends. It was the practice of the employer to reimburse for toll fees. Occasionally, if required, Mr Lee might use his car for business of the employer, such as for carrying the employer’s employees or clients to the border. It has been used as such for at least 10 times. Mr Chan and the dependants of the deceased (the appellants) brought proceedings for employees’ compensation on the basis that the car accident arose out of and in the course of the employment. By judgment on liability dated 9 September 2010, a District Court judge held that the accident did not
occur in the course of the appellants’ employment and therefore dismissed their claims. The appellants appealed. The two issues on appeal were: (i) whether Mr Chan and the deceased had the express or implied permission of the respondent to travel back to Hong Kong in Mr Lee’s Car; (ii) whether the detour to the karaoke parlour operated so as to take the whole of the return journey out of the course of their employment.

Held, allowing the appeal:
Per Fok JA (Tang VP and Kwan JA agreeing)
In order for an employee to come within s 5(4)(g) of the Employees’ Compensation Ordinance, it was necessary for him to show, first, that he was travelling for the purposes of and in connection with his employment, and secondly, that he was travelling in a means of transport with the express or implied permission of his employer.

Express or implied permission?
Whether an employee can be said to have the implied permission of his employer to travel by a particular means of transport for the purposes of and in connection with his employment was to be determined by reference to all the surrounding facts. The question was to be answered objectively by a review of whether those facts, including the past history between the particular employer and his employees, would reasonably lead an employee to believe that he was permitted by his employer to travel by the particular means of transport.

The burden of establishing the express or implied permission must rest on the employee seeking to bring himself within s 5(4)(g) of the Ordinance. This must be done by evidence of facts from which the express or implied permission could be inferred. Permission should not be lightly implied since such a finding would expose an employer to liability. But if all the surrounding facts, including any previous practice, were such as to lead an employee reasonably to believe that he had his employer’s implied permission to take that means of transport for the purposes of and in connection with his employment then he would come within s 5(4)(g).

Mr Lee had express permission from the respondent to travel in his own car between his workplace in the Mainland and the customs port at the border. If Mr Lee was driving back to the border, that would be one of the means of another employee to return to Hong Kong. In respect of the annual dinner, the CEO of the respondent did not give specific instructions as to which employee was to travel by which particular vehicle. The vehicles provided by the respondent were simply an option for the employees to return to Hong Kong. The respondent did not inform its employees that they were obliged to take the respondent’s vehicles to return to the border. Nor did the respondent seek to prohibit the taking of any other form of transport to return to the border. It could have done either of these things quite simply if it wished to exercise a greater degree of control over the return journey (eg, by way of an announcement at the end of the annual dinner) and, if it had done so, the permission to travel in Mr Lee’s car could not be implied. However, in the light of the previous practice generally and that in respect of Mr Lee’s car in particular, the Court held that an employee of the respondent, such as Mr Chan and the Deceased, would reasonably consider he had implied permission of the respondent to return to the border by means of Mr Lee’s car.

Even if one accepted that s 5(4)(g) of the Ordinance was a further extension to the meaning of the course of employment so that it should be construed narrowly, the Court did not see any reason why a narrow construction of the provision should lead to a different conclusion.

Did the detour operate to take the return journey out of the course of employment?
The Court did not accept that the detour to the karaoke parlour in this case was of such a character or duration as to prevent the resumption of Mr Chan and the Deceased’s journey in Mr Lee’s car from being a continuation of the course of their employment. So far as duration was concerned, the detour to the karaoke parlour was for a period of approximately 2½ hours which did not constitute more than a temporary interruption to a journey undertaken in the course of employment. So far as the character of the detour was concerned, there was no reason to regard the visit to the karaoke parlour as any different to a visit to a cinema, café, or restaurant for the purposes of entertainment, a drink or a meal before commencing or resuming a work-related journey. Insofar as the detour to the karaoke parlour did interrupt the journey undertaken in the course of employment, the Court would hold that it did so only on a temporary basis until the return journey was resumed. The resumed journey was on precisely the same route that Mr Lee’s car would have taken if he had driven them straight from the annual dinner to the border without making the detour.

There was no reason in principle why it would not be open to an employer to prohibit the making of detours for personal business or to limit the types of detours that might be made when travelling by any particular means of transport for the purposes of and in connection with employment so as to limit the extent of any express or implied permission to take that particular means of transport.

Obiter
There must be a limit to the course of employment and it might be necessary to apply common sense in deciding whether, on the facts of a particular case, the deviation in the journey in question operated as more than a temporary interruption. Ultimately, each case would depend on its own facts.