Yu Po Ching v. China State Construction Engineering (Hong Kong) Ltd and Another

DCEC 1673/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1673 OF 2013

---------------------

---------------------

-------------------------

JUDGMENT

-------------------------

A.  Background

1.On 5 April 2012 at about 2 pm, when Mr Lam Chi Wah (“the Deceased”) was working at an outdoor construction site, a rainstorm suddenly came.  The Deceased and his co-workers ran to take shelter in a covered glass house.  After the Deceased arrived at the shelter, he suddenly collapsed (“the Incident”). He was sent to the hospital and was certified dead on the same day.

2.According to the post-mortem report and the autopsy report, the medical cause of death was ischaemic heart disease.

3.A claim for employee’s compensation was lodged under sections 5 and 24 of the Employees’ Compensation Ordinance (“ECO”) against the respondents.

4.The Deceased was a marble worker employed by the 2^nd respondent for about 4 years.  The 1^st respondent was the main contractor of a construction site at the rooftop at Lei Yue Mun Plaza, Kowloon (“the Construction Site”). 

5.At the time of the Incident, the Deceased was aged 53, married with a 12 year old son and a 4 year old daughter.

6.The applicant is the Deceased’s widow.  She, being an eligible member of the Deceased’s family under section 3 and section 6A of the ECO, took out this application for herself and on behalf of the Deceased’s family.

7.The applicant’s case was that the Deceased’s death was caused by and/or contributed to by the prolonged work pressure and heavy workload before the Incident. 

8.The respondents disputed.

B.  The Parties’ Agreement on Quantum

9.At the beginning of the trial, the parties have helpfully come to an agreement on the following matters in the event that this court finds for the applicant on the issue of liability:-

(1)  the Deceased worked 24 days in March 2012 (which was the month immediately preceding the date of the Incident) as per the records of the respondents;

(2)  the Deceased’s daily wages in March 2012 was $850;

(3)  the monthly earnings of the Deceased calculated in accordance with section 11(1)(a) and section 6(1)(b) of the ECO are $850 x 24 working days x 60 = $1,224,000;

(4)  the funeral expenses under section 6(5) of the ECO are $15,000;

(5)  therefore, the total amount of compensation that should be awarded to the applicant (if liability is found) is $1,239,000 (being $1,224,000 + $15,000).

10.With this agreement of the parties, the only issue before the court is on liability.

C.  Issue on Liability

11.Section 5(1) of the ECO provides that:-

“... if in any employment, personal injury by accident arising out of and in the course of employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”

12.The compensation awarded under section 5 of the ECO is on a no fault basis.

13.Under section 5(1), the applicant has to prove on a balance of probabilities that :-

(1)  there was a personal injury by accident;

(2)  the accident arose out of and in the course of the employment.

14.As to second requirement, section 5(4)(a) of the ECO provides a statutory presumption that “an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment.”

15.In LKK Trans Ltd v Wong Hoi Chung (2006) 9 HKCFAR 103 at paragraph 30, the Court of Final Appeal has enunciated that:-

“Plainly, this section [section 5(1)] requires a causal connection first, between the employment and the accident (so that the accident arises “out of” the employment) and between the accident and the injury suffered by the employee: the accident must cause the injury. None of this is controversial.”

16.The respondents accepted and took no issue of the following:-

(1)  the applicant was employed by the 2^nd respondent at the time of the Incident[1];

(2)  by virtue of section 24 of the ECO, the 1^st respondent, which is the main contractor of the Construction Site, will be liable to pay the compensation to the applicant as if the applicant had been immediately employed by the 1^st respondent (See also Wong Leung Tak v Hip Hing Construction Co Ltd [1991] 2 HKLR 345);

(3)  the Incident took place in the course of the applicant’s employment[2];

(4)  the respondents did not seek to rebut the presumption under section 5(4)(a) of the ECO[3]. No evidence was adduced to prove that the Incident was not arisen out of the employment with the 2^nd respondent.

17.The respondents’ acceptance that the Incident took place in the course of the Deceased’s employment and did not seek to rebut the presumption in section 5(4)(a) suggested that there was no dispute on the second requirement, and that the only dispute was on whether or not there was a “personal injury by accident” within the meaning of section 5(1) of the ECO.

18.It transpired at the course of the trial that the respondents did take issue on the connection between the accident, the injury and the employment.  The respondents also disputed the fact that there was increase in the workload of the Deceased at the months prior to his death.

19.In all fairness, I will also deal with the issue on the connection between the accident, the injury and the employment.  Mr Shum, counsel for the applicant, did not disagree to this approach.

D.  Legal Principles

20.I shall first consider the relevant legal principles.

“Personal Injury by Accident” – meaning of an “accident”

21.The expression “accident” was not defined in the ECO. 

22.In the context of section 5 of the ECO or its English equivalent[4], the word “accident” has been defined by the House of Lords in Fenton v Thorley & Co Limited [1903] AC 443 as “an unlooked-for mishap or an untoward event which is not expected or designed” (per Lord Macnaghten at page 448) or in the words of Lord Lindley at page 453 “any unintended and unexpected occurrence which produces hurt or loss”.

23.This definition was widely adopted by subsequent English and local decisions, including Clover, Clayton & Co Limited v Hughes, [1910] AC 242; Yip Ho v Hong Kong & Kowloon Wharf & Godown Company Limited [1969] HKDCLR 1; Zhu Defang for herself and the members of the family of Kong Yi, deceased v Wing Hing Construction Company Limited and another, unreported DCEC 1160 of 2012, 28 August 2013; Sit Wing Yi Sibly v Berton Industrial Ltd [2013] 5 HKLRD 225)

24.“Accident” under section 5 of ECO is not limited to extraneous events such as car accident or industrial accident that we commonly come across. 

25.It has been clearly accepted by the English and Hong Kong courts that “internal accident”, that is a physiological change invisible from outside the body (such as a rupture, an aneurism or an infarction), is capable of falling within the meaning of the term “accident” in section 5(1) of ECO. (Fife Coal Co Ltd v Young [1940] AC 479, per Lord Atkin at p. 488 and 489; Yip Ho, supra; Sit Wing Yi Sibly v Berton Industrial Ltd [2011] 4 HKLRD 91 (court of appeal) per Tang VP at p.97 and per Yuen JA at p.107)

26.In Fenton, supra, the deceased was at work at his machine which he had got through the operation on that day many times without hitch or difficulty.  At night, when the time came for opening the vessel, the wheel could not turn. He then called a fellow workman to his assistance.  The two men together set to work to move the wheel.  Suddenly Fenton felt something which he describes as “a tear in his inside”, and it was found that he was ruptured.  There was no evidence of any slip or wrench or sudden jerk. The House of Lords overturned the court of appeal decision and held that the injury sustained by Fenton was within the meaning of “injury by accident” under the Act. 

27.Lord Macnaghten said at page 446 that:-

“If a man, in lifting a weight or trying to move something not easily moved, were to strain a muscle, or rick his back, or rupture himself, the mishap in ordinary parlance would be described as an accident. Anybody would say that the man had met with an accident in lifting a weight, or trying to move something too heavy for him.”

28.There is no need to prove carelessness.  Lord Lindley said at pages 453 of Fenton:-

“The word “accident” is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word “accident” is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events.”

29.In Clover, supra, an employee suffering from serious aneurism was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism.  The death was caused by a strain arising out of the ordinary work of the deceased.  It was held that the rupture of the aneurism under the strain was an accident that caused the death of the employee.  Lord Loreburn, in holding that the judge below was entitled to regard the rupture as an “accident” within the meaning of the Act, had said at page 245:-

“The first question here is whether or not the learned judge was entitled to regard the rupture as an ‘accident’ within the meaning of this Act. In my opinion, he was so entitled. Certainly it was an “untoward event”. It was not designed. It was unexpected in what seems to me the relevant sense, namely, that a sensible man who know the nature of the work would not have expected it ... No doubt the ordinary accident is associated with something external; the bursting of a boiler, or an explosion in a mine, for example. But it may be merely from the man’s own miscalculation, such as tripping and falling. Or it may be due to both internal and external conditions, as if a seaman were to faint in the rigging and tumble into the sea. I think it may also be something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel. If that occurred when he was lifting a weight it would be properly described as an accident. So, I think, rupturing an aneurism when tightening a nut with a spanner may be regarded as an accident. It cannot be disputed that the fatal injury was in this case due to this accident, the rupture of the aneurism under the strain.”

30.In Yip Ho, supra, an employee was engaged in lifting barrels of paint in the forenoon and in the afternoon in pushing carts loaded with rolls of paper each weighing about 600 to 700 pounds.  The works on that day were heavier than usual as the cargoes had to be loaded in a hurry for export, but these works were not heavier than what the employee was occasionally obliged to do.  The afternoon shift stopped at 5 pm.  With one hour’s break, the employee commenced the evening shift.  He and the other workers were given a cart which they pushed into the godown for loading by other employee. Having performed the work for about 45 minutes, the employee complained of abdominal pains and went to the toilet. About half an hour later, he was found lying unconscious in the toilet with his trousers down. He was subsequently certified dead.  The cause of death was myocardial infarction. Judge Yang (as the learned judge then was), after considering a number of English and local authorities, held at page 8 on the issue of the existence of an accident as follows:-

“I suppose, following the definition of Lord Macnaghten in Fenton’s case, an infarction may be regarded as an accident in the same way as a rupture or a stroke is regarded as an accident. It is “an unlooked-for mishap, or an untoward event, which is not expected or designed.” That the infarction was the cause of death is clear from the evidence.”

31.Judge Yang has cited and considered in Yip Ho other English cases, including Ismay, Imire & Co v Williamson [1908] AC 437, as follows:-

“an employee, who was weakened and emaciated, and more likely to suffer heat stroke than others was held to have died by accident when heat stroke came upon him suddenly and unexpectedly while he was attending a boiler in the stokehold of a steamship.”

32.In Moore v Tredegar Iron & Coal Co. Ltd (1938) 31 BWCC 359, the court of appeal awarded compensation under the Act to a collier who died sometimes after work.  Judge Yang in Yip Ho described Moore as follows:-

“In Moore v Tredegar Iron & Coal Co Ltd, the Court of Appeal awarded compensation on the following facts. A collier left home one evening apparently in good health. His work during the night was heavier than his usual work, but not heavier than what he was occasionally required to do. A quarter of an hour after he had ceased work, and after he had walked 190 yards from his place of work on his way to the surface, he was found unconscious on the ground. On being helped up, he recovered and walked a short distance but collapsed again and died. A post mortem examination showed disease of the heart. It was held that on the evidence, the workman’s death had been accelerated by his normal work on the night in question: and that, if he had not been working in the mine and had not had the strain of his normal work, he would not have died when he did die and would probably have died at a later age. It would appear that in that case the workman had apparently been in a stage of perfect health on the morning when he went to work and that his ordinary work, including the more laborious work that he occasionally had to do, had not, up to that morning, affected his heart in any way. The doctor in that case said that strenuous physical exercise was not good for a man with heart disease, and that he would not advise him to work as a collier because the heavy strain of collier’s work might cause his death.”

“Personal Injury by Accident” – relationship between the injury and the accident

33.The accident and the injury are distinct from each other.  The accident is a contributory cause to the injury and the injury is the effect (Sit Wing Yi Sibly, supra, CFA at page 230 §21).

34.The accident does not have to be a proximate cause of the death or injury.  The argument that the accident has to be a proximate cause of the death or injury was categorically rejected by the House of Lords in Fenton, where Lord Lindley said at page 454:-

“What is meant by “personal injury by accident”? Mr. Powell, in his very able argument, contended that there must be, first, a personal injury; second, that there must be an accident causing it; third, that such accident must be the proximate cause of the injury, and that nothing more remote than the proximate cause can be properly taken into account. My Lords, I cannot accede to this contention. Assuming that there must be something unintended and unexpected besides the personal injury sustained, or, in other words, assuming that there must be a personal injury and an accident causing it, I cannot agree with Mr. Powell that this statute ought to be construed as if it were a policy of insurance against accidents.”

“Personal Injury by Accident” – connection between accident and employment

35.There shall be some causal connection between the accident and the employment.  The employment does not have to be the sole or dominant cause of the death.  It suffices that the employment or the work is a contributory cause of the injury. (Sit Wing Yi Sibly, supra, at page 230).

36.Lord Scott has said in Wilson v Chatterton [1946] KB 360 at page 44 that:-

“It is only if the accidental injury has no causal connexion with the employment at all that it can be said not to arise out of it, though it may occur in the course of it. It is for that reason that the employer cannot escape liability by showing that some factor such as disease is a predisposing or even contributing cause of the injury; he must show that it is the sole cause, as has been said frequently in decided cases.”

37.It was only in cases where the injury has no causal connection with the employment at all that it could be said not to have arisen out of the employment. (Lee Fuh v Ming Hing Construction Co. [1991] HKDCLR 105)

38.The Court of Final Appeal has held in Sit Wing Yi Sibly v Berton Industrial Ltd, supra, that the question of whether the injury was by accident was distinct from any question of whether what had happened arose out of or in the course of the employment.  The presumption under section 5(4)(a) of the ECO did not go to the distinct and anterior question of whether the injury was by accident.  The applicant cannot simply rely on the presumption under section 5(4)(a) of the ECO.

39.The case of Sit Wing Yi Sibly, which the respondents heavily relied on, has to be viewed against its unique fact that there was a lack of evidence on the cause of the death. The employee in this case was found slumped on the floor of a toilet at work in the mainland China with blood in his mouth and nose.  He died before arriving at the hospital.  The hospital stated that the cause of death as “sudden cardiac death”.

40.No autopsy has ever been carried out on the deceased.  The conclusion reached by the two pathologists in their joint report is “there is really insufficient factual information to allow for the determination of a reasonable cause of death.  There is no evidence to suggest that the death was due to a pre-existing congenital or hereditary condition or related to his previous medical conditions. Neither is there evidence to suggest that the death was a result of his employment.”

41.It is this unique feature of the lack of any evidence on the cause of the death that the Court of Final Appeal described as an “insuperable difficulty” of the claim:-

“the human sympathy due to the deceased’s family is obvious. But as a matter of law, the claim was met by an insuperable difficulty due to the fact that the cause of the deceased’s death is unknown. The expression “injury by accident” plainly encompasses cause and effect, with accident as the cause and injury as the effect. Without a known cause of death, the injury can hardly be found to be an injury by accident. Contending for a concept of accident and injury as one and the same event is to say that cause and effect can be one and the same thing. Axiomatically they cannot. In the course of his skillful agreement that they can be one and the same thing, Mr Denis Chang SC for the widow has sought to place reliance on a number of judicial statements made in cases where the employee had a pre-existing medical condition. But Mr Chang could point to only one claim which succeeded otherwise than on the basis that the work was at least a contributory cause of the injury.”

Death caused by disease alone or by disease and employment taken together

42.In cases where the disease of an employee is a cause to his death, the proper approach of the court is to ask whether the employee died from the disease alone or from the disease and the employment taken together, looking at it broadly.  Lord Loreburn has held in Clover, supra that:-

“It may be said, and was said, that if the Act admits of a claim in the present case, every one whose disease kills him while he is at work will be entitled to compensation. I do not think so, and for this reason. It may be that the work has not, as a matter of substance, contributed to the accident, though in fact the accident happened while he was working. In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment taken together, looking at it broadly?”

43.This approach was adopted in Yip Ho where the learned judge came to the conclusion at page 9 as follows:-

“Looking at it broadly and without over-nice conjectures, I would say that it was the disease and the strain of work on the 30^th of March which killed the deceased.”

Approach on Evidence

44.The determination on causation is a matter for the court, but not for the doctors.  The decision of the court will be assisted by medical evidence however, the court has to bear in mind that the standards and approaches adopted by medical expert in determining the cause of death are different from those adopted by the court.  Common sense could be used to fill the gap.

45.In Lee Kin-kai v Ocean Tramping Co Ltd [1991] 2 HKLRD 232, the court of appeal laid down the cardinal principle in relation to the standard of evidence as follows:-

“First causation is essentially a matter for the judge not for the doctors. It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it. Secondly it is important to bear in mind that the law and medicine here, it seems to me, apply quite different standards. In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient; it need not be shown to be the sole cause. The doctors' practice, what is known as the science of aetiology. In the words of one in particular, they look for "clinical cause", proof certainly beyond reasonable doubt and perhaps beyond any doubt. They are looking for what Lord Kilbrandon called in McGhee v. National Coal Board [1973] 1 WLR 1 at p. 10 "an irrefragable chain of causation".

Thirdly, a judge when considering causation is not only entitled, he is bound, to use his common sense, to approach the question in the same way as would a juror. The point was conveniently made in McGhee v. National Coal Board which was a case where owing to limitations of medical knowledge, the plaintiff was unable to prove a strict causal connection in the medical sense between the negligence and his injury. He failed in the courts below. The House of Lords agreed that common sense could be used to fill the gap. Lord Reid at p. 5 said:

"It has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man's mind works in the everyday affairs of life."

Lord Salmon, at page 11, repeated an earlier dictum of his own where he said:

"I consider, however, that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory".”

46.In Lee Fuh, supra, Burrell DJ (as the learned judge then was) reiterated and applied the principles laid down in Lee Kin-kai, carefully analyzed the conflicting medical evidence on causation of the death and use common sense to resolve the differences. At page 112 E to G, Burrell DJ said that:-

“In this case, there is no doubt in my mind that there is a gap in the medical knowledge. The crucial question in this case is a medical moot-point. By deciding legal cases judges do not presume to resolve or even contribute to the medical debate. I do not have to say which doctor is medically correct and would not presume to do so. I entirely respect their different stances on the issue. ...

I have concluded that at the end of Dr Nariman’s evidence his opinion that there was a connection between the deceased’s labour and the death was indeed one which commended itself to common sense and logic. I have concluded that it was a view which an ordinary reasonable person would come to having heard all his evidence and taking into account the length of his experience the extent of his expertise and his reasoning and methodology adopted in forming his opinion.”

47.At page 109:-

“Dr Nariman suggested that a subset of patients walking around the wards or up and down stairs in hospital is not the same as a subset digging ditches or performing heavy labour at the time of or just before collapse. He went on to point out that the latter subset would never become available for analysis. Thus it will never be possible to either prove or disprove a connection or a causal link between heavy labour and infarction formation or rupture. Therefore, says Dr Nariman, one has to postulate and use common sense. He describes his conclusion as an educated guess or if I may put it another way on his behalf, an inference based on over 40 years experience as a lung specialist with intimate knowledge of the function of the heart.”

Summary of relevant legal principles

48.In summary, I respectfully adopt and add on the propositions helpfully and succinctly summed up by Mr Shum in his closing submission as follows:-

(1)  The expression “accident” is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed. It was unexpected in the sense that a sensible man who knows the nature of the work would not have expected it: Fenton and Clover.  An “accident” can be internal or external: Clover, Yip Ho, Sit Wing Yi Sibly.

(2)  The legislative intent is to put the obligations on the employers to compensate for personal injuries of the employees for which such employers were not responsible before, there is no need to prove carelessness or that the employers are at fault: Fenton.

(3)  The accident and the injury are distinct from each other. The accident is a contributory cause and the injury is the effect: Sit Wing Yi Sibly. The accident does not have to be a proximate cause of the death or injury: Fenton.

(4)  There shall be some causal connection between the accident and the employment.  It suffices that the employment is a contributory cause of the injury, proof of the employment as a sole or dominant cause is not necessary. It is irrelevant whether or not the work has been heavier than the deceased was occasionally obliged to do: Clover. Yip Ho, Zhu Defang and Sit Wing Yi Sibly.

(5)  In cases where the employee’s disease is a cause of the death, the court should consider whether he died from the disease alone or from the disease and employment taken together, looking at it broadly and free from over-nice conjectures: Yip Ho and Clover.

(6)  Even if the deceased had already been suffering from very serious disease prior to death, provided that the work accelerated his death, the employment is a contributory factor of the death: Yip Ho, Moore and Clover.

(7)  Causation is a matter for the judge and not for the doctors. The judge is assisted by it but he is not dictated by it: Lee Kin-kai.

(8)  The court shall apply common sense. This is especially so when it will not be possible to prove or disprove medically a connection or a causal link between heavy labour and infarction formation or rupture: Yip Ho, Lee Fuh and Lee Kin-kai.

(9)  If there is no known cause of death, the court cannot find there be personal injury by accident: Sit Wing Yi Sibly.

49.Against the background of the above legal principles, I now turn to the evidence in the present case.

E.  Factual Witnesses

50.The applicant called two factual witnesses, herself and Madam Siu, the cousin of the Deceased.

51.It can be discerned from the parties’ arguments that there are two major factual disputes on the evidence of the factual witnesses:

(1)  whether there was an increase in the Deceased’s workload before his death and the impact of such workload, if any, on the Deceased; and

(2)  the details of the Incident.

Increase in Workload of the Deceased

52.The gist of the applicant’s evidence was that the Deceased earned wages on a daily basis.  He usually had holiday on Sunday and statutory holidays.  At the end of 2011, the workload of the Deceased increased substantially.  The Deceased had worked in the construction sites at Yau Tong and Fo Tan/University in March 2012 (a month before his death).  Since the respondents have taken up several construction projects, the Deceased was required to work overtime since the end of 2011, and was required to work on some public holidays. He was very tired when he got back home from work.  Due to the heavy workload at that time, he was not allowed to take holiday on the Ching Ming Festival and he could not return to the mainland to pay tribute to ancestors, which was an activity he used to do yearly on the Ching Ming Festival.  The Deceased’s parents and brothers reside in the mainland. The 2^nd respondent’s refusal to give holiday to the Deceased at the Ching Ming Festival deprived the Deceased of his chance to have a reunion with his family.

53.Madam Siu’s evidence corroborated with those of the applicant.   Madam Siu testified that she used to have gathering with the Deceased and his family every two weeks.  Since about February and March 2012, the Deceased became very busy and had to work on Sunday.  Between Chinese New Year in late January 2012 and Ching Ming Festival in April 2012, she only met the Deceased twice.

54.At cross examination by counsel for the respondents, the applicant agreed that the Deceased was able to return home for dinner with the family at around 7 pm every evening in March 2012, and this pattern was the same since the Deceased worked for the 2^nd respondent.  The respondents suggested that the Deceased was not required to work overtime in March 2012.

55.I have to evaluate this part of the applicant’s evidence together with the other evidence given by her and the other witness.  I will also test the evidence with contemporaneous documents.

56.The respondents did not call any factual witness.

57.The respondents produced documents that the respondents claimed to be the records of the construction site at Yau Tong for March 2012 (“Timesheets”).  These Timesheets show that the Deceased started work at around 8 am in the morning and finished work at around shortly after 5 pm. The respondents relied on these Timesheets to show that the Deceased had not worked overtime in March 2012.  The Timesheets showed that the Deceased worked a total of 24 days in March 2012, including two days in Aberdeen.

58.The respondents have not called the maker of the Timesheets to give evidence.  The Timesheets remained to be a hearsay evidence. 

59.In respect of these Timesheets, I noted that:-

(1)  There was no evidence on how the time was recorded on the Timesheet, who recorded them, who was in control of these records, when the records were made.

(2)  Some of these Timesheets did not record the in and out time.  Some of them only have the time of getting in, but not the time of leaving. 

(3)  At the bottom of the Timesheets, there were the words “寫入失敗”.  There is no evidence on the meaning of these words.

(4)  There is no indication that the Deceased has verified or agreed to these Timesheets.

(5)  According to the employment contracts produced by the respondents, the Deceased’s working hours were from 8 am to 6 pm, and he was required to work 6 days per week.  Many of these Timesheets showed that the Deceased finished works at about 5 pm, that was before the end of the working hours as required under the employment contract.

60.I do not find the Timesheets reliable and will attach no weight on them.

61.The 2^nd respondent was the employer of the Deceased. It must have better and complete records of the Deceased’s working time and the salaries he received before his death.  The respondents, however, chose to produce only the Timesheets.

62.As shown in the Notification of Construction Work, the commencement date of the work at the Construction Site was 20 May 2009, the expected duration of which was 33 months.  That means the work was expected to complete in February 2012. In Form 2 dated 10 April 2012, the expected completed date for the Construction Site was changed to May 2012. It showed that there was a delay or postponement of the construction work and apparently there was an inability to meet the original completion date.  Further on the date of the Incident, the construction work was due to finish within a month according to the postponed completion date.  It was most likely that the Deceased was in a rush to finish the marble works at the Construction Site.

63.It was also accepted by the respondents that the Deceased had to work in more than one construction sites before his death.   The workload that the Deceased had to handle was more than those at the Construction Site.

64.Taking all the evidence as a whole, I accept the evidence of the applicant and Madam Siu that the Deceased had an increased workload prior to his death.  These works exhausted him. I also accept that inability to pay worship to his ancestors in the mainland at the Ching Ming Festival upset and caused frustration to the Deceased.

The Incident

65.There was no direct evidence before the court on what had happened at the time of the Incident.

66.The applicant was not present at the time of the Incident.  She gave evidence on what she had heard from the colleagues of the Deceased while she was in the hospital on the date of the Incident.  However, she could not even provide the identity of the colleagues from whom she came to know the happening at the scene. 

67.Similarly, the respondents did not adduce any direct evidence on the happening at the time of the Deceased’s death.  They relied on a statement given by a Mr Yeung to the Labour Department (“Yeung Statement”).  Hearsay notice has been given in respect of the Yeung Statement. No application was made to cross-examine Yeung.

68.I have no doubt that, in these circumstances, the Yeung Statement was an admissible evidence in this case.  Nevertheless, it remained to be a hearsay evidence and this court shall assess the weight to be attached on it.

69.Section 49 of the Evidence Ordinance provides that:-

“(1)  In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2)  For the purpose of subsection (1), regard may be had, in particular, to the following:-

(a)  whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b)  whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c)  whether the evidence involves multiple hearsay;

(d)  whether any person involved had any motive to conceal or misrepresent matters;

(e)  whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f)  whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g)  whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.”

70.There is no suggestion that the respondents could not locate Mr Yeung.  This court cannot rule out the possibility that the introduction of the Yeung Statement as hearsay evidence is an attempt to prevent proper evaluation of its weight (section 49(2)(f) of the Evidence Ordinance). 

71.The statement was made on 21 May 2012, one and a half month after the Incident. The court does not have evidence on how the statement was made and cannot assess the quality of the statement. 

72.There was more than one worker present at the scene.  We do not know why only one statement on what had happened at the scene was taken; or if there was more than one statement, why only one was produced.

73.It appears to me that the parties in personal injuries or employees compensation claims have a tendency to rely on the statements taken by the Labour Department without calling the maker and expect the court to accept the contents of the statement as true.  I do not find this satisfactory.  In my view, the production of these statements without calling the maker does not offer much assistance to the court when there is conflicting evidence on the contents of the statements.  Without the opportunity to cross-examine the statement maker and without knowing the circumstances under which the statement was taken, there is no or very little basis for the court to resolve the conflict of evidence.

74.The respondents submitted that the court shall accept the Yeung Statement in total.  I do not consider that the court has to choose and accept in total either the applicant’s version or the respondents’ version. Given the doubts on the quality of the Yeung Statement, I do not find it prudent to accept this hearsay evidence in total. Likewise, I do not accept the hearsay evidence of the applicant in total.

75.The evidence in common accepted by both the applicant and the respondents was that the Deceased was working on the date of the Incident.  In the afternoon, there was a rainstorm. The Deceased ran to the covered glass house to take shelter from the sudden rain.  Shortly after the Deceased arrived at the glass house, he collapsed.   I accept and find this as the fact.

F.  Medical Evidence

76.The two medical experts, Dr Wong and Dr Ho have prepared a joint medical expert report.  Both of them have given evidence in court.

77.The two experts agreed that the Deceased died of arrhythmogenic sudden cardiac death.  There was a lack of or insufficient blood to the Deceased’s heart, which caused arrhythmia, and then death.

78.The two experts differed on the development of the arrhythmogenic sudden cardiac death.  In short, Dr Wong’s opinion was that the employment was a contributory factor to the death of the Deceased.  Dr Ho disagreed and took the view that it was difficult to prove that the employment contributed to the death of the Deceased.

79.Dr Wong opined that the work related stress and anxiety suffered by the Deceased was due to the increased workload, fatigue, the denial of the chance to worship ancestors in the mainland on the date before his death, and these contributed to the cause of his death. The concluding remarks of Dr Wong in the joint expert report are as follows:-

“The sequence of events according to Dr Wong is a prolonged attack of arrhythmia like ventricular tachycardia that caused hypotension, impaired left ventricular function, pulmonary oedema and death. [The Deceased] had the propensity of the substrates for a sustained ventricular tachycardia to occur in terms of presence of old scars, 50% atheromatous disease in the LAD [left anterior descending artery] and myocardial bridging. The triggering factor was from the work related stress.”[5]

80.Dr Wong explained in court that by using the word “prolonged”, he referred to it in terms of hours.

81.Dr Ho took the view that the Deceased’s death was a natural progression of his illness.  There was no obvious triggering mechanism caused by work to the fatal cardiac ischaemic event.  Dr Ho’s concluding remarks in the joint expert report are as follows:-

“According to Dr Ho the arrhythmogenic sudden cardiac death is brought on by the natural progression of [the Deceased’s] illness i.e. ischaemic heart disease. There was evidence of minor heart attack(s) in the past. Pathologically [the Deceased] harboured all adverse elements associated with intramyocardial bridging of the major coronary artery (LAD) which induced his myocardial ischaemia disease. The presence of old scars provided for substrate for arrhythmia. Another episode of major myocardial ischaemia on 4/5/2012 brought about his sudden cardiac arrest most probably from ventricular fibrillation. This sudden cardiac arrest happened within minutes. The conclusion is in line with the remarks of the forensic pathologist involved. There was no obvious triggering mechanism for the major fatal cardiac ischaemic event as far as work related stress is concerned. It was a natural progress of his illness.”[6]

82.Dr Ho expressed his opinion on the suggestion of triggering factors arising from works as follows:-

“It is difficult to establish any physical aggravating/triggering factors arising from work which could be said to have induced a major heart attack. Any postulation of mental stress related to the job would be purely speculative.[7]”

.... It is difficult to establish any likely relationship between the workload stress, be it physical or mentally, and his sudden death. There is no relationship between his death on 5/4/2012 and his work.[8]”

83.Mr Shum has helpfully summed up in his closing submission the matters on which both experts are in agreement:-

(1)  the Deceased was asymptomatic for years prior to the Incident despite his heart diseases, therefore he belonged to the group of “silent ischaemic”, that is totally asymptomatic;

(2)  other than ischaemic heart disease which is pathologically the immediate cause of death, the Deceased also suffered from arrhythmia which induced the fatal cardiac arrest;

(3)  the historical heart diseases of the Deceased formed the substrates (foundation), and the Deceased has a higher propensity to have heart attack;

(4)  generally the fatal heart attack caused by ischaemic and arrhythmia may be triggered by a triggering event;

(5)  the secretion of catecholamine under stress could also contribute to such fatal heart attack (Dr Ho only said that the secretion had to be much in order to induce heart attack); and

(6)  as to the stress level which may give rise to an increase in catecholamine, it is a matter of individual persons’ variation.

84.One major difference between Dr Wong and Dr Ho’s opinion was that whether the Deceased’s death was a sudden one happened at about 2pm on the date of Incident as suggested by Dr Ho, or the Deceased’s heart attack was after prolonged period (in terms of hours) of hypotension connected with ischaemic as Dr Wong suggested.  

85.Dr Ho took the view that the Deceased could not have suffered a period of hypotension that morning without any symptoms such as shortage of breath or sweating.  First, there is no evidence on the Deceased’s condition that morning, and the court cannot speculate whether or not the Deceased had suffered any of the suggested symptoms that morning. Further, this suggestion of Dr Ho does not sit well with the fact that the Deceased is totally asymptomatic for years, a fact that Dr Ho has agreed. Dr Ho could not rule out the possible phenomenon that a person could have a “come and go” hypotension continuously and therefore accumulatively damaged his heart. As such the symptoms suffered by the Deceased might not be as apparent.

86.Dr Ho suggested that there is no evidence in support of the secretion of catecholamine that morning.  However, Dr Ho also accepted that the level of stress that would trigger the secretion of catecholamine varies individually.  He accepted that the level of catecholamine that had been secreted could not be detected medically and scientifically, therefore could not be shown in the autopsy report.

87.In the joint medical report, Dr Ho did not rule out the possibility of the effect that the employment may contribute to the death of the Deceased.  He just said it was difficult to establish.

G.  Cause of death – disease only or disease and employment together

88.The pertinent question this court has to decide is whether the death of the Deceased was caused by his disease alone or it was caused by the disease and the employment together, looking at it broadly and without over-nice conjecture.  The court is assisted by the medical evidence, but is not bound by it.

89.I have approached and considered the evidence of two medical experts with common sense. I also took into account the finding that there was an increase in the workload that caused stress and frustration to the Deceased before his death. I accept that the evidence of Dr Wong is accorded with common sense and logic.  I am of the view that the Deceased’s death was broadly speaking caused by his disease and the employment together.

F.  Identification of a specific event as the accident

90.The respondents submitted that no specific event can be identified as the “accident” within the meaning of section 5(1) of the ECO.   

91.The respondents referred to two English cases mentioned in Yip Ho, namely Ormond v Holmes & Co Ltd (1937) 2 AER 795 and Coe v Fife Coal Co Ltd (1909) 2 BWCC 8.  The respondents submitted that a specific accident happened on a specific day at a specific place must be identified. 

92.In the case of Ormond, the employee was died from stroke when he became ill and collapsed at work.  There was no medical evidence that the work engaged by the employee contributed to or accelerated the stroke which caused his death. He was not awarded compensation. The English court of appeal took the view that it was not possible to point to any specific event that was within the meaning of section 1(1) of the Workmen’s Compensation Act. 

93.In Coe, the employee had become totally incapacitated by reason of a cardiac breakdown due to the fact that he had been engaged in work that was too heavy for him for some days.  He had not been injured by any particular strain at any particular time. The death was caused by the disease. It was held by the court that the illness was not caused by a particular unlooked for mishap or untoward event and therefore refused to award compensation.

94.The respondents then referred to the Hong Kong cases, Chow Mui v Chow Cheuk-chung [1970] HKDCLR 94 and Wong Yuet Yung v Wah Fung Hong Gas Engineering Co Ltd unreported, DCEC 1315 of 2003, 15 January 2007.

95.In Chow Mui v Chow Cheuk-chung [1970] HKDCLR 94, the employee died while employed as a watchman on board a ship in the harbour.  He collapsed an hour after he had started his rest period and almost immediately after cooking a meal. According to the post-mortem report, the death was due to ruptured arch of aorta. The medical evidence in this case was not precise and definite. There was no evidence to show what brought about the accident. Nor was there evidence supporting the view that the employment was one of the contributing causes of the accident, Judge Yang (as the learned judge then was) therefore dismissed the application.

96.In Wong Yuet Yung v Wah Fung Hong Gas Engineering Co Ltd unreported, DCEC 1315 of 2003, 15 January 2007, while the applicant opened an iron gate and was exiting from the toilet for her work place to the back street, she saw some cleansing workers washing the street with a water hose.  The applicant’s case was that she was terrified and as a result she suffered the stroke. The respondent denied that the stroke was caused by the accident.  After hearing evidence, the learned judge did not accept the evidence of the applicant and was unable to conclude that she was hit by strong water, being extremely horrified, or feeling unwell instantly (at paragraph 34).  The court also found that there was insufficient medical evidence saying that “fright would lead to the occurrence of a stroke” and there would be no basis upon which the court could draw such inference (paragraph 51).  The court dismissed the application.  The court of appeal dismissed the appeal (unreported CACV 33 of 2007, 19 February 2008).

97.I agree with the respondents that “accident” shall be a specific event and shall be identified.  The conclusion of the above cases is however facts sensitive and very much dependent on the evidence or lack of evidence found by the court in those cases.  Therefore, they are of limited assistance in the determination of the present case.

98.The respondents suggested that there was no specific event that can be identified as the “accident” happened in the present case. As I have stated above, accident can be extraneous or internal.In my view, having reviewed the entire evidence and the law, the unexpected unlooked-for mishap or untoward event that happened to the Deceased, (the accident) was the infacrtion. 

99.As supported by medical evidence, the infacrtion is a contributory cause to the death (injury) of the Deceased.

100.The respondents next submitted that the applicant has failed to identify the “accident” in the application. The respondents relied on Li Zhuoman v Easy-Access Transport Services Ltd, unreported, DCEC 2695 of 2015, 23 December 2016 and submitted that the application filed by the applicant shall be bound by the pleadings rule. 

101.The Employees’ Compensation (Rules of Court) Rules, Cap 282B, Rule 16 provides that:-

“(1)  An employee or an employer or any other person who desires the determination of any question arising out of an accident in which compensation is or might be claimed shall lodge with the registrar of the court a written application in Form 1, 2 or 3 in the Schedule accompanied by particulars containing:-

(a)  a concise statement of the circumstances in which the application is made and the relief or order which the applicant claims, or the question which he desires to have determined;

(b)  the full name and address of the applicant, and the name and address of the respondent.”

102.Insofar as it relates to the accident, the information asked in the statutory Form 2 to which this case applies, are mainly: paragraph 3(3), date and place of accident, nature of work on which the deceased was engaged, and nature of accident and cause of injury, and paragraph 3(4) nature of injury to the deceased and date of death.

103.I agree that the parties shall identify clearly in the application the causes of action in accordance with the rules of pleadings.  The application shall contain specific and relevant facts in support of the cause of action.

104.Reading the applicant’s application as a whole, I do not consider the application failed to identify the causes of action or otherwise is defective that the applicant should be denied of the relief sought. 

Conclusion

105.I therefore find that the respondents are liable to pay compensation to the applicant under the ECO.

106.The quantum awarded to the applicant is the amount of HK$1,239,000 as the parties have agreed.

107.The applicant shall be entitled to interest on the compensation at half of the judgment rate from the date of the application to the judgment, and at the judgment rate from the date of judgment until payment.

108.I make a costs order nisi that the respondents shall pay the applicant costs of this proceedings on a party and party basis, to be taxed if not agreed, with a certificate for counsel.  The above costs order shall become absolute if there is no application to vary the same within the next 14 days.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

109.I am grateful for the helpful assistance from counsel for the applicant and counsel for the respondents respectively.

Mr Erik Shum, instructed by Lau & Chan assigned by the Director of Legal Aid, for the applicant.

Mr Wong Chi Kwong and Mr Anson Wong Yu Yat, instructed by Waller Ma Huang & Yeung, for the 1^st & 2^nd respondents.