Abdul Hamid J:

This is a claim for damages for personal injuries sustained by the plaintiff who was employed by the defendants as a bus-conductor. The plaintiff alleges that the injuries were caused by the negligence or alternatively by the breach of statutory duty of the defendants, their servants or agents. Briefly, the facts were that on 10 April 1966 the plaintiff while at work had a stroke as a result of which he suffered paralysis of the left half of his body. The plaintiff, 46 years old, was employed by the defendants since 1947 and was paid $8 per day. As a bus-conductor he had to sell tickets to passengers; look after the safety of passengers when boarding on and alighting from the bus; account for the fares collected; keep and maintain records of the tickets sold and to load and unload, passengers' luggage, vegetable baskets and bicycles on the hood of the bus.

The plaintiff in para. 3 of the statement of claim alleges that he had to work from 6.30 a.m. to 6.00 p.m. without a day of rest in a week, a total of 80 hours a week in breach of s. 58 of the Employment Ordinance, 1955. Counsel for the plaintiff contended that there was a breach of statutory duty on the part of the defendants and that it was as a result of this breach that the plaintiff suffered injuries. The learned Counsel also submitted that by working more than 48 hours in a week there was also a breach of s. 59 of the Employment Ordinance. Counsel for the defendants, on the other hand, submitted that there was no breach of any statutory duty on the part of the defendant as ss. 58 and 59 of the Employment Ordinance did not prohibit a labourer from working more than six days or more than 48 hours a week. He urged the Court to consider the fact that the plaintiff was a daily-paid labourer and, if he did work more than six days or more than 48 hours in a week, it was entirely a voluntary act on the part of the plaintiff. In any event the defendants never required the plaintiff to work daily against his wish. The plaintiff was free to take leave on any day without pay.

Section 58 and s. 59 (1) of the Employment Ordinance reads as follows:-

58.No labourer shall be required to work on more than six days in any one week.

59.(1) No labourer, other than a shift worker as hereinafter defined, shall be required to work for more than forty-eight hours in any one week:

Provided that any labourer may be required to work for more than forty-eight hours in one week in the case of accident, actual or threatened, or in case of urgent work to be done to electrical installation or machinery, or in case of an interruption of work which it was impossible to foresee and which is not of a recurring character, but only in so far as may be necessary working of the undertaking concerned.

It seems to me that having regard to the words "shall be required" used in s. 58 it is reasonable to construe that though a labourer shall not be required by the employer to do so the labourer may, however, agree to work more than six days in a week.

It also appears that a labourer, though entitled to take a day off, may voluntarily forgo his leave and elect to work in which case it is unreasonable to say that he was in the circumstances required by the employer to work more than six days in a week. Thus it is unreasonable to say that there was a breach of statutory duty on the part of the employer. In may view an employer owes no duty to prohibit a labourer if he so elects to work more than six days in a week. It seems to me that s. 59(1) of the Employment Ordinance also places no absolute limitation on the part of the labourer to work more than 48 hours in a week and there appears to be no prohibition against an employer to employ a labourer who voluntarily elects to work more than 48 hours a week. My finding may perhaps be strengthened by the fact that the Ordinance itself provides no penalty against any contravention of either s. 58 or s. 59(1) of the Ordinance.

In the present