Yeung Yim Ngor Angela v. Po Leung Kuk No 1 W H Cheung College

[English Translation – 英譯本]

DCEC 1529/2012

[2018] HKDC 766

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1529 OF 2012

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JUDGMENT

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A. BACKGROUND

1.The applicant, Yeung Yim Ngor Angela, was employed by the respondent, Po Leung Kuk No.1 W.H. Cheung College, as a Chinese language teacher. Pursuant to the Employees’ Compensation Ordinance (“Ordinance”), the unrepresented applicant made this application for employee’s compensation against the respondent.

2.According to the application filed by the applicant, the alleged accident happened on 16 January 2012 (“Date of the event”).  In the relevant columns in the application for “date and location of accident, nature of work being carried out, type of accident and causes of injury”, the applicant claims that after two incidents had allegedly occurred on 12 and 13 January prior to the Date of the event, the alleged accident happened on the Date of the event, causing her personal injury.

3.Apart from this employees’ compensation application, the applicant has made against the respondent 3 other employees’ compensation applications, namely DCEC 101/2012, DCEC 1528/2012 and DCEC 2502/2015. The dates of the alleged accidents are 20 January 2010 (“the 1st Accident”), 1 September 2011 (“the 2nd Accident”) and 14 May 2015 (“the 4th Accident”). The alleged accident in this employees’ compensation application should be the third one in the sequence of the alleged accidents.

4.The respondent has admitted liability for the accidents involved in DCEC 101/2012 and DCEC 1528/2012, namely, the 1st Accident and the 2nd Accident respectively, and the assessments of the amounts of compensation in those applications are pending. As regards the present case and DCEC 2502/2015, the 4th Accident, the respondent, however, has denied liability.

5.Earlier I ordered separate trials on liability and assessment of the amounts of compensation for the present case. This trial, therefore, only deals with the issue of liability.

6.Except for the period between 6 March 2013 and 14 March 2016 during which the applicant was represented by a solicitor assigned by the Legal Aid Department, she has been unrepresented, up to the time of this trial.

7.In this trial, the applicant acted in person, while the respondent was represented by Ms Loh of counsel.

B.  Undisputed facts of the case

B.1  Injury in the 1st Accident

8.The 1st Accident occurred during a class. Having been hit by the corner of a desk pushed down by students, the applicant fell onto the floor and was injured. She was diagnosed with “chest wall contusion, acute stress reaction[1] ”.

9.In the “Form 9”, Certificate of Review of Assessment, issued by the Employees’ Compensation (Ordinary Assessment) Board, the applicant’s injury was diagnosed as “Left chest wall contusion resulting in residual left chest pain”.

B.2  Injury in the 2nd Accident

10.In this accident, the applicant sprained her left ankle. The related Form 9 shows that she suffered “Left foot injury resulting in residual left foot pain”.

B.3  Incidents prior to the Date of the event

B. 3.1 Incident on 12 January (“Incident of examination paper”)

11.At a meeting on the examination paper of the Chinese Language for Form One, when discussing the examination paper prepared by the applicant, Ms Chan Lai Man (“Ms Chan”) and other teachers queried one of the multiple choice questions, and took the view that the students who had answered the question set by the applicant should not be given marks. The applicant, however, did not agree with the suggestion.

B.3.2 Incident on 13 January (“Incident of late attendance”)

12.That day was the school’s examination day and the applicant was an examination invigilator. However, before the examination, the applicant discussed the Incident of examination paper with Mr Cheung Shue Ying, the Chinese Panel Chair (“Mr Cheung”), and Ms Chan, Mr Cheung’s wife. She was therefore late. On her way to attend as examination invigilator, she met the principal, Mr Chau Chor Shing (“Principal”). Having spoken to the Principal briefly in his office, she went off to invigilate.

B.4 16 January (Date of the event)

13.On that day the Principal and the Vice-principal, Yiu Pui Shun, (“Vice-principal”) had a meeting with the applicant on the Incident of late attendance (“the Meeting”). At the meeting, the Principal requested the applicant to submit a written report, but the applicant refused to do so. Alleging that she was feeling unwell, the applicant went to the Caritas Hospital for treatment, and was diagnosed with situational stress reaction and mood disturbance.

14.In the Certificate of Review of Assessment issued by the Employees’ Compensation Board of the Labour Department, the applicant’s injury was assessed to be “situational stress reaction resulting in psychiatric impairment”.

15.The applicant took sick leave for the rest of the academic term. She was still on sick leave on the day of the trial.

C. The issues

16.There are two issues in the present case.

17.The applicant’s capacity as an employee is not disputed. In accordance with the provision in section 5(1) of the Ordinance, the applicant shall prove that she sustained “personal injury by accident arising out of and in the course of the employment”.

18.On the said undisputed facts of the case, the respondent does not dispute that the 3 incidents on the said 3 days happened “in the course of the employment” as referred to in section 5(1) of the Ordinance.

19.In addition, while the injury involved in the present case is not physical injury, and was non-physical and psychological and mental in nature, the respondent does not dispute that the psychiatric problem on which the applicant was assessed also amounts to “personal injury” as required in section 5(1).

20.Nevertheless, the respondent disputes the remaining two requirements in section 5(1).

C.1  Issue (1)

21.The first issue is that nothing happened to the applicant “by accident”. Primarily, the respondent considered that the Meeting did not amount to an “accident” as referred to in section 5(1). And if that was not the case, the respondent would also deny the earlier Incident of examination paper and the Incident of late attendance, together with the Meeting, constitute an “accident” as referred to in section 5(1).

22.Put another way, the first issue is whether the Meeting amounts to an “accident” as referred to in section 5(1).

23.If the Meeting alone does not constitute the “accident”, would the said series of incidents -- Incident of examination paper, Incident of late attendance and the Meeting amount to an “accident” as referred to in section 5(1)?

C.2  Issue (2)

24.The second issue is that the respondent denied that the psychiatric problem on which the applicant was assessed was caused by the Meeting.

25.Hence, the second issue is whether the personal injury with which the applicant was diagnosed after the Meeting was caused by the Meeting.

26.The applicant undoubtedly has the onus of adducing evidence regarding the two said issues involving “personal injury by accident” as required in section 5(1). In respect of the legal definition of “personal injury by accident”, I am of the view that it should be discussed in “Section D” below, before dealing with both parties’ evidence.

D  Legal definition of “Personal injury by accident”

D.1  “Accident” and “injury”: causation

27.The Ordinance does not define “personal injury by accident” laid down in section 5(1).

28.In Sit Wing Yi Sibly (acting for herself and on behalf of the other members of the family of Cheung Kai Wai, Randie, deceased) v Berton Industrial Ltd [2] , the Court of Final Appeal held that “personal injury by accident” as referred to in section 5(1) encompasses causation: the “accident” is, however, distinct from the “injury”, with the “accident” being the cause (in other words, at least being a contributory cause) and injury being the effect[3] .

D.2  “Accident”: legal definition

29.In Sit Wing Yi Sibly v Berton Industrial Ltd [4], the Court of Appeal adopted the expression “injury by accident” that the House of Lords of the United Kingdom construed in Fenton v J Thorley & Co Ltd [5] in respect of the then relevant Act, which was similar to the Ordinance, and held that “accident” as referred to in section 5(1) was a reference to an unlooked-for mishap or an untoward event which is not expected or designed[6] .

D. 3   Authorities of the United Kingdom

30.The facts of the present case are not those commonly seen in employees’ compensation cases: the alleged accident was mainly based on the tone and the contents of the conversation involving the respondent’s management, the Principal and the Vice-principal, at the Meeting; the personal injury was a mental, rather than physical, injury. As the applicant had no lawyer to provide her with case authorities in support of her claims, for the sake of completeness, I requested counsel to assist the Court by conducting legal research on authorities with facts similar to those of the present case.

31.Having conducted the relevant research, counsel indicated that it seems there are no similar Hong Kong cases, but there are United Kingdom authorities. She submitted 5 decisions of the Social Security Commissioner of the United Kingdom which dealt with appeals to the Social Security Appeals Tribunal. Those 5 cases are: -

(1)   Social Security Commissioner’s File CI/5249/1995[7] (“Case (1)”),

(2)   Social Security Commissioner’s File CI/3696/2005[8] (“Case (2)”),

(3)   BM v Department for Communities (II)[9] (“Case (3)”),

(4)   Social Security Commissioner’s File CI/105/1998[10] (“Case (4)”) and

(5)   NA v Department for Social Development(II)[11] (“Case (5)”)

32.The facts of these 5 cases relate to the mental injury caused by anxiety and stress which the employee allegedly suffered following contact, dealings or conversations at meetings between the employee and the employer or superiors in the course of employment, and therefore, as in the present case, these cases involve no physical injury. In dealing with such cases on appeal, it was necessary for the Social Security Commissioner, in considering whether the employees should be given industrial injuries benefit, to determine whether the facts of the cases amounted to an “accident” as referred to in s. 94(1) of the Social Security Contributions and Benefits Act 1992[12] (“the Act of the United Kingdom”).

33.Although the said United Kingdom cases are not binding on this Court, the Act (see footnote “12”) and the facts discussed in the cases are similar to those in the present case. In 4 of the cases, Case (1), Case (3), Case (4) and Case (5), the Commissioner, like the Court of Appeal, in Sit Wing Yi Sibly, adopted the definition by the House of Lords in Fenton in respect of “accident”. Further, in Case (2), the Commissioner cited another case of the House of Lords which was subsequent to Fenton, namely Chief Adjudication Officer v Faulds[13] . The House of Lords also took Fenton into consideration in Faulds. I am therefore of the view that these cases apply to the present case and can assist this Court in analysing the legal requirements of “by accident”.

D.3.1 Principles in considering “an unlooked-for mishap or an untoward event which is not expected or designed”

D.3.1.1 The word “accident” to be interpreted in its natural everyday sense

34.In Case (1), due to the employee’s misconduct, he was suspended on full pay and subsequently dismissed. The employee alleged that in consequence of his suspension by his employer, he suffered from a nervous breakdown which amounted to an “accident” under the Act of the United Kingdom, and was entitled to the disablement benefit.

35.The Commissioner took the view that the word “accident” within the meaning of the Act of the United Kingdom should be interpreted in its natural everyday sense[14] . The Commissioner stated that suspension by the employer might be unexpected to the employee, but the employer had the right to suspend the employee in such circumstances[15] , and hence it was held that it did not constitute an “accident” under the Act of the United Kingdom.

36.Case (2) also concerned the suspension of an employee. The employee, a project manager, was called in to see his superior, the line manager, and was told at the meeting that the police had been asked to investigate his suspected false expense declarations, and therefore he was suspended on full pay. The employee  said he felt shocked and humiliated by the employer’s allegations and the suspension. During the 4-month suspension, he said  he was under severe stress, thereby suffering mental injury. He therefore made a claim for disablement benefit.

37.The Commissioner was of the view that even if the physical condition of the employee (such as some disease or weakness or other predisposition excessive for the individual undertaking) may constitute an “accident”, “by accident” does not mean “accidentally”; it must be specific and ascertainable, carrying with it the concept of an unwelcome and unexpected mishap arising in the course of events[16] .

38.The Commissioner therefore took the view that even if he accepted that the employee was shocked by his suspension, he was naturally predisposed to such a disproportionate response to this event. The Commissioner agreed with the decision of the Appeals Tribunal that neither being suspended nor receiving the letter of suspension could be regarded as an “accident” under the Act of the United Kingdom.

D.3.2 The feature of “unexpected mishap arising” out of the course of conversation between employer and employee is required to satisfy the definition of “accident”

39.In Case (3), after an unauthorised disclosure of information belonging to the employer by the employee, the employer commenced an investigation and informed the employee that disciplinary action would possibly be taken against him. Having had an interview with the employer, the employee understood that the investigation was closed. However, he was then notified that the investigation was suspended. He experienced some health problems subsequently and was absent from work for reasons of ill health. The employee claimed that the series of events allegedly amounted to an “accident” under the Act of the United Kingdom, and he was therefore entitled to disablement benefit.

40.The Commissioner was of the view that where an employer had used words which were untoward in the course of the conversation between the employer and the employee, this may constitute an “accident”. However, to satisfy the definition of “accident”, the contents of the conversation must have been an “unexpected mishap arising”[17] out of the course of the conversation.

41.The Commissioner decided that the employer’s approach to the investigation did not reveal anything untoward, and so did not amount to an “accident” under the Act of the United Kingdom.

42.In Case (4), the employee was a senior member of the academic staff of a college of further education. The employee alleged that at three meetings, the principal and the vice-principal of the college had made unreasonable and aggressive criticisms and verbal attacks on him; they had insulted both him and his wife, and even had impugned his professional integrity and conduct. Although an employee retirement package was agreed on when he met with the principal and the vice-principal for the last time, his professional integrity was still aggressively impugned. He subsequently suffered from depression, and claimed disablement benefit.

43.Having found that the events did not constitute the accident, the adjudication officer dealing with the application refused compensation. Upon the employee’s appeal, the Tribunal decided that the employee was subject to unreasonable criticism and verbal attack at one of the meetings, and the Principal, being bullying and offensive, attacked him at both the second and the third meetings. The Tribunal decided that those three meetings constituted the “accident”, and the employee was entitled to disablement benefit.

44.The adjudication officer brought an appeal to the Commissioner from the decision of the Tribunal.

45.The Commissioner was of the view that in deciding whether an event can amount to an “accident”, it is the manner of suspension or dismissal or criticism that matters rather than the event of suspension or dismissal or criticism. Where a conversation during such an event was the basis of the “accident”, the conversation must be “outrageous and untoward” as well as an “unexpected mishap arising” from it, causing the employee to suffer psychological injury[18] .

46.The Commissioner decided that the Tribunal did not err on a point of law.

47.The event in Case (5) involved a part-time police officer who was told by his superior that he was under threat from a terrorist organisation; feeling that his life was in danger, he was frightened and subsequently suffered post-traumatic stress disorder. He claimed disablement benefit.

48.The Commissioner was of the view that the superior was obliged to tell the employee about the threat from a terrorist organisation; otherwise he would have been in dereliction of his duty. As there was no suggestion that the superior was in any way other than professional and courteous in the conversation, the Commissioner decided that the said event was not an “accident”.

D.3.3 An “accident” may be caused by an event or the cumulative effect of a series of events

49.According to Cases (3) and (4), even though the events themselves cannot be characterised as accidents, if the injury suffered by an employee arises from an untoward reaction to a series of cumulative events, it may constitute an “accident”[19] .

50.I, in considering the two issues in the present case, now give my decision upon the aforesaid legal principles.

E. The evidence

51.The applicant was her only witness. She adopted her declaration to the Labour Department dated 15^th February 2012 (“Declaration”) and her witness statement dated 27^th October 2017 as her evidence.

52.On 14^th October 2016, the respondent filed respectively the witness statements of the Principal, Vice-principal, Mr Cheung and Ms Chan. Ms Chan did not testify in court. Hence only the Principal, Vice-principal and Mr Cheung were the witnesses for the respondent. All of them adopted their witness statements as their evidence.

53.The facts in dispute actually are not substantial, and they mainly relate to the conversations among the persons involved and their contents in the three said incidents, particularly the Meeting. I would therefore focus on this aspect when discussing and considering the evidence of all the witnesses.

E.1  The applicant’s evidence

E.1.1 Incident of examination paper

54.In the discussion over the multiple choice question prepared by the applicant, the applicant said that Ms Chan took the view that the marking standard set by the applicant was wrong, and further indicated that all the students who gave the answer set by her would not be given marks. The applicant alleged that this caused her to be mentally stressed.

E.1.2 Incident of late attendance

55.On the day of the Incident of late attendance, the applicant was supposed to attend as examination invigilator in Form 4C class at 11:15 am. When the applicant was in Teaching Staff Room A, Ms Leung, the Deputy Chinese Panel Chair, mentioned the Incident of examination paper, and Mr Cheung indicated to the applicant and other teachers that he had decided to give marks to the students, whether they gave the answer as set by the applicant or the answer considered to be correct by Ms Chan. Having heard Mr Cheung’s decision, the applicant said that she found it difficult to accept and immediately expressed her surprise.  After that, she followed Mr Cheung back to Teaching Staff Room B, while Ms Chan was also there. Then the applicant, Mr Cheung and Ms Chan had the following conversation:

- “The wife is almighty” (The applicant said to Ms Chan)

- “I don’t know how many wives you have” (The applicant in her seat said to Mr Cheung)

- “Still talking! Hurry up with your work” (Mr Cheung said to the applicant)

- “Be perfectly clear about what is business and what is personal” (Ms Chan said to the applicant)

- “Meekly submit to oppression” (The applicant said to Ms Chan)

56.The applicant said that Ms Chan then left the teaching staff room without saying a word.

57.Having checked some examination papers, the applicant went to fetch the examination papers to invigilate in Form 4C class. On her way, in the corridor on the second floor, she met the Principal. She said that the Principal had asked her where she was going. Having been told by the applicant that she was on her way to invigilate, the Principal asked her not to go and to follow him into his office. The applicant said that in the principal’s office, the Principal was being difficult with her, asking her a lot of unnecessary questions. Having been scolded by the Principal for her late attendance as examination invigilator, she was crying and complaining, telling him that she found it hard, and asked “either to see a doctor or go to the examination”. She was asked to attend as examination invigilator and then to see him at the end of it. The applicant said that she had gone to see the Principal after her attendance as examination invigilator, but he had been out for lunch. Having been told by the secretary to the Principal not to wait, she left the school.

E.1.3 The Meeting

58.The Meeting was on a Monday. After returning to the school, the applicant said that she was called to the principal’s office where, besides the Principal, the Vice-principal was also present. They asked the applicant for her explanation for her late attendance as examination invigilator. The applicant said that in the course of the meeting, the Principal accused her of making mistakes and professional misconduct, looking at her fiercely and pointing his finger at her. He gave her a verbal warning and asked her to submit a report on 20^th January. In the report, she was asked to (1) account for her late attendance as examination invigilator; (2) look for a way to resolve it; and (3) promise not to make any mistakes in future.

59.Having refused the request from the Principal, she said that she was advised by the Vice-principal, in a soft voice, to write up and submit a report to the Principal. She refused. Following that, the Vice-principal left the principal’s office. The applicant testified in court that after the Vice-principal left, the Principal claimed to be a “Judge”, asking her to bow to him.

60.The applicant stated that the Principal had abused his power. Being blamed and threatened by the Principal, the applicant was nervous, hence she was injured on this occasion.

61.The applicant added that the three said incidents made her “feel that her colleagues treated her unkindly”.

E.2  The respondent’s evidence

E.2.1 Mr Cheung

62.As regards the Incident of examination paper, Mr Cheung said that upon discussion a mutual agreement to amend the answer set by the applicant was reached between Mr Cheung and the teachers, to which the applicant did not object at the time.

63.However, the following day, Mr Cheung saw the applicant mentioning again the Incident of examination paper to Ms Leung, the Deputy Chinese Panel Chair. Mr Cheung said that, in the light of the applicant’s poor attitude at that time, and to avoid increasing colleagues’ workload, he proposed to Ms Leung and the applicant that both answers, that is, the original and the amended ones, could be given marks. Nevertheless, the applicant appeared to be impatient and went off in a huff, returning to Teaching Staff Room B.

64.Mr Cheung also went back to Teaching Staff Room B and told the Chinese Language teachers of Form One that marks could be given for both answers. Mr Cheung said, following that, the applicant was yelling and cursing in her seat, claiming that she was being bullied. She verbally attacked him and his wife, Ms Chan, personally, criticising them for not being perfectly clear about what was business and what was personal. Ms Chan left Teaching Staff Room B crying, while the applicant left in a rage.

65.Mr Cheung said that the whole incident lasted no more than 3 minutes, and he did not believe that it would delay the applicant’s attendance as examination invigilator. He denied having anything against her in the Incident of examination paper.

E.2.2 The Principal

E.2.2.1 Incident of late attendance

66.The Principal said that the staff of the general office reported to him that it was 10 minutes into the examination for Form 4C class, but the applicant still had not arrived to invigilate. And therefore, when he met the applicant outside the general office, he asked her to come into the principal’s office and checked with her the situation, asking her to go straight to attend as examination invigilator and to see him after that to deal with the incident of her late attendance as examination invigilator. However, she left the school after her attendance as examination invigilator. He was therefore not able to deal with the matter the same day. He subsequently learnt from his secretary that she tried to see him after he had left the school.

67.The Principal denied the allegation that he did not allow the applicant to go to attend as examination invigilator.

E.2.2.2 The Meeting

68.The Principal said that on the day of the incident, he had arranged to meet with the applicant together with the Vice-principal to deal with her late attendance as examination invigilator. The Principal said that at the Meeting, although they asked the applicant calmly to account for her late attendance, she failed to give the actual reason. Then he asked her to submit a written report. However, he did not ask the applicant to account for the three specific matters as she alleged. The Principal said that the applicant stated that she would not prepare any report. He then told her that in case she failed to submit the report on Friday 20^th January, the school might take further action, including issuing a verbal warning to her.

69.The Principal said that the applicant had been impatient and emotional. In the 2 to 3 minutes after the Vice-principal had left the Meeting, the Principal tried to continue to talk to the applicant, but in vain, because she was unyielding. The Meeting therefore ended with no result.

70.The Principal said that the Meeting lasted no more than 20 minutes, and that in the whole course of the meeting, he did not look at the applicant fiercely or scold her for professional misconduct, demanding her admission of fault or a letter of repentance . He also denied that he issued a verbal warning to her at the Meeting. The Principal explained that issuing a verbal warning could not be done casually, and must follow procedures laid down by the school.

E.2.3 The Vice-principal

71.The Vice-principal’s evidence solely concerns the Meeting.

72.The Vice-principal said that during the Meeting which lasted about 20 minutes, he listened to what the applicant said most of the time. Although the applicant had spoken a lot, the reason for her late attendance as examination invigilator could not be figured out. He told her that she was obliged to attend the examination centre as invigilator on time, but she only kept mentioning the Incident of examination paper and the previous 1st and 2nd incidents, without explaining why she was late attending as examination invigilator. The Principal could only ask her to submit a written report to him on 20^th January; otherwise, the school might take further action, including issuing a verbal warning to her. Since the Vice-principal had some other matters to attend to, he left before the Meeting ended. The Vice-principal said that when he was at the Meeting, neither the Principal nor he had issued any verbal warning to the applicant.

73.Under cross-examination, the Vice-principal admitted that he played a passive role and behaved rationally at the Meeting whereas the Principal was mainly the one who asked questions. The allegation that he, together with the Principal, pressurised the applicant was denied. The Vice-principal believed that he shared the same thoughts as the Principal, which was that issuing a verbal warning would mean much more trouble, whereas by submitting a report, the applicant could account for the matter to the school and bring an end to it, which would be good for both parties.

F. The finding of facts

74.The disputes over the facts of the present case are not substantial, particularly those regarding the Incident of examination paper and the Incident of late attendance. Based on the discussions in Section D above, the contents of the conversation, the tone and the attitude of the Principal and Vice-principal, especially those of the Principal, at the Meeting is the material evidence on Issue (1).

75.Having carefully heard all the witnesses’ testimonies in court and observed their demeanour while they were giving evidence during the course of the 2-day trial, I have the following general observations.

76.According to the applicant’s testimony in court, she had been a Chinese Language teacher for junior forms in the same school of the respondent since she obtained the Diploma in Chinese Language Teaching in 1989. In the first 4 or 5 years, she taught elite classes. However, after the 1^st accident, as mentioned by the applicant in her statement of declaration, she “was diagnosed with Acute Stress Reaction” and “prone to crying with no sense of security”. When giving evidence, she also said that she had been in bad mood and admitted that she had been down and prone to crying before the alleged accident happened in the present case.

77.I was able to observe the applicant’s said mental condition from her evidence and the way she behaved during the trial. Possibly under the influence of her then mental condition, the applicant was prone to be sensitive. Always subjectively feeling that her colleagues targeted and were hostile towards her, she therefore disclosed to me her feeling of “being treated unkindly by her colleagues” (see paragraph 61) in the 3 incidents involved in the present case. I believe that it was more likely due to her personality than fact. It may be the reason why the applicant would have particularly sensitive and strong reactions to a supposedly ordinary which matter happened at school, and clashes and arguments easily occurred between her and her colleagues.

78.The applicant is undoubtedly a well-experienced Chinese Language teacher. Possibly because she is more experienced, in my observation, she is not receptive to the opinions of others. Given her personality and her mood under the influence of her mental condition, I found that she talked and behaved emotionally throughout the whole Incident of examination paper, and that she even blurted out to the teacher couple, Mr Cheung and Ms Chan, words which I considered to be indecent (see paragraph 55).

79.Further, I notice that the relationship between the applicant and the Principal seems to be rather tense. The cause of this tense relationship, on my analysis, may be due to the fact that the applicant was a more experienced employee at the respondent. Although the applicant entered her employment as a teacher of junior forms earlier than the Principal who also entered his employment as a teacher, he, later, was promoted to be the principal and became the management of the respondent, that is, her superior, and that may be one of the reasons why she defied the Principal. Possibly because of that, she always considered herself to be a victim, being bullied and persecuted by the management of the respondent. Her state of mind can be seen from the last paragraph of her witness statement, where she emotionally compared herself with the lead female character, Lin Daiyu, in a Chinese novel, Dream of the Red Chamber, and quoted from it a paragraph: “The shadow of a crane is released into the freezing pond; the soul of a flower is buried in the chilled moonlight” to draw analogy with the situation she was in.

80.Based on the above discussion, in my opinion, when the applicant described in her evidence what was happening in the incidents of the three days regarding the present case, possibly because of her personality and her then rather unstable mood, she exaggerated and emotionalised the contents, as well as the volume, the tone and expressions of conversations with her colleagues, and therefore, she was not able to give accurate and plain descriptions of the incidents. In the light of this, I am of the view that her evidence in this respect is not to be fully believed.

81.As regards the 3 witnesses for the respondent, Mr Cheung, the Principal and the Vice-principal, in assessing whether their evidence is reliable or not, I should take into consideration that their recollections of the incidents could become vague, possibly because of the lapse of time, notwithstanding that before the trial, their memory of the incidents could be refreshed with their witness statements, which, however, were not made shortly after the incidents of the present case, but on 11 October 2016, which was almost 5 years later. The details given in the witness statements were the records of their recollection of the incidents of 5 years before. At the time of the trial, the lapse of time was even longer, which was more than 6 years, and their recollections would be vaguer. Therefore, I cannot exclude the possibility that they could possibly fail to recall exactly, make mistakes in, or omit details of, what was happening in the incidents in those 3 days. Putting aside these flaws, overall, I consider the evidence of the 3 witnesses for the respondent to be honest and reliable. Their testimonies were plain and direct with no exaggeration. Accordingly, I am of the view their evidence should be slightly more reliable than the applicant’s.

82.I believe that the 3 witnesses for the respondent knew the applicant’s said personality and moods quite well.  I notice that when dealing with these three incidents, they all tried their best to settle the matters to avoid agitating the applicant. For instance, in the Incident of examination paper, in order to patch things up with the parties concerned, Mr Cheung made a win-win decision of accepting both answers.

83.Likewise, in my view, the Principal also adopted the same approach in dealing with the Incident of late attendance. When the applicant met the Principal, the time for her attendance as examination invigilator had passed. Under such circumstances, I am of the view that the applicant’s version that the Principal told her not to attend as examination invigilator is illogical. On the contrary, I believe the Principal’s version that he urged her to attend as examination invigilator as quickly as possible, which is more reasonable.

84.As regards the Meeting, it is more obvious that the Principal and the Vice-principal were thinking of patching things up. In fact, the applicant also agreed that the Vice-principal behaved rationally and played a passive role at the Meeting. At the Meeting, the Vice-principal was gentle. Assisting the Principal, he kept advising the applicant to account for her late attendance in writing. I believe that the Principal and the Vice-principal were sincere at the Meeting, in the hope of dealing with the Incident of late attendance in the simplest way. As the Vice-principal said, accounting for the late attendance in writing was beneficial to both parties. Given that the applicant also agreed that the Vice-principal was rational and passive at the Meeting, her allegation of being pressurised jointly by the Principal and the Vice-principal at the Meeting totally contradicts the Vice-principal’s attitude at the Meeting she described. In my view, the applicant’s version was not true.

85.I agree with counsel’s submission that the applicant’s allegation of a verbal warning from the Principal and the Vice-principal is illogical. It was normal for the Principal and the Vice-principal, being the management of the school, to ask for the applicant’s explanation of her late attendance. I accept the Principal and the Vice-principal’s versions. As the issuing of a verbal warning stipulated by the respondent has to follow established procedures of the respondent, they did not issue any verbal warning at the Meeting. After the applicant had failed to provide any reason for her late attendance, they could only ask her to submit a written explanation.

86.Although the teaching staff and the management of the school showed patience and tolerance in dealing with these three incidents, the applicant always behaved emotionally. Her mood was further worsened by the occurrence of the incidents one after another. In the Incident of examination paper, feeling that “her colleagues wronged [her] that she had made a mistake in her answer”, she was agitated. Whilst she did not accept what I consider to be a sensible and win-win decision of Mr Cheung, she said something humiliating to Mr Cheung and Ms Chan. Worse still, since she reasoned with Mr Cheung, there was a delay, which caused her to be unable to attend as examination invigilator on time, and the subsequent incident in which she met the Principal and was questioned by the latter on her late attendance as examination invigilator. Being mentally unstable and prone to crying, she was agitated by the Principal’s questioning. As she felt it unbearable and hard, it was natural for her to cry.

87.Two days later, at the Meeting, the applicant behaved even more emotionally. I believe that the Principal and the Vice-principal, having known well that the applicant would easily get emotional, had restrained themselves as far as possible at the Meeting. However, since the applicant seemed to be very agitated most of the time at the Meeting, I do not rule out that the Principal, at times, might have spoken in a more serious tone, making the applicant feel that he looked at her fiercely and  scolded her for professional misconduct, “damaging her reputation”.

88.To conclude, I believe that the Principal and, in particular, the Vice-principal, did not use any inappropriate words at the Meeting, or do anything unreasonable in dealing with the Incident of late attendance.

G. Issue (1): Did the Meeting or the Incident of examination paper and the Incident of late attendance amount to an “accident” as referred to in section 5(1)?

G.1  Was the Meeting an “accident”?

89.Based on the Court of Final Appeal’s judgment in Sit Wing Yi Sibly, the applicant must prove that the Meeting was a cause of her injury, and that the Meeting amounts  an “accident” under the Ordinance, that is, the Meeting was “an unlooked-for mishap or an untoward event which is not expected or designed” (see paragraph 29).

90.Based on the discussions in Section E above, I have mentioned that in the incidents on the three days, the applicant was agitated and could not contain her emotions. Therefore, it was the applicant’s then personal traits that she was prone to cry and to get furious when she could not contain her emotions.

91.In my view, in the Incident of late attendance, it was simply  normal general administration of a founding organisation in education that the Principal and the Vice-principal, in the capacity as the management of the respondent, arranged for the Meeting to deal with the Incident of late attendance and asked the applicant to account for it. In addition, prior to the Meeting, on the day of the Incident of late attendance, the Principal asked the applicant to see him to deal with the Incident of late attendance after her attendance as examination invigilator. However, having failed to meet the applicant on the same day of the Incident of late attendance, the Principal arranged for the Meeting to deal with the Incident of late attendance right after the weekend. In my view, the Meeting was an expected one, and obviously it was not unlooked-for.

92.Accordingly, I find the Meeting, like the matters in Case (1), Case (3) and Case (5), to be the employer’s responsibility and exercisable right with nothing “unexpected and untoward” (see paragraph 40), not an “accident” under the Ordinance, and that nothing happened to the applicant “by accident” at the Meeting.

G.2  Did the Principal and the Vice-principal deal with the Meeting in a manner amounting to an “accident”?

93.Based on Case (3) and Case (4) discussed above, as agreed by counsel, it may constitute an “accident” under the Ordinance, where the Principal and the Vice-principal had used inappropriate words at the Meeting.

94.On the above findings, I am of the view that nothing inappropriate or “unexpected and untoward” happened in the conversations of the Principal and the Vice-principal with the applicant at the Meeting. Therefore, the incident did not constitute an “accident”.

95.Even if I accepted the applicant’s version and took the view that the Principal “was pointing his finger at” and scolding her while looking at her fiercely, and that he said that she had committed “professional misconduct…and you are being given a verbal warning…” or words to that effect, I would have agreed with counsel’s submission and considered that the Meeting, as in my above findings, was an ordinary matter for the respondent as a founding organisation in education; it was not beyond the reasonable expectation of the teacher concerned or not unexpected. In any event, I am of the view that the way the Principal dealt with it was not inappropriate, and it did not constitute an “accident” under the Ordinance.

G.3  Were the 3 said incidents a series of cumulative untoward events?

96.Although the applicant based the accident on only an incident, the Meeting, in her statement of claims, in the light of the aforesaid legal principles and for completeness, I should, at the same time, take account of whether or not the Meeting and the Incident of examination paper and the Incident of late attendance prior to the Meeting as a series of untoward events, and they together constituted an “accident”.

97.From the above analysis, I take the view that while it can be said that the incidents which happened in the two days prior to the Meeting were barely connected, whether the 3 incidents are considered individually or together, it cannot be shown that the respondent’s teaching staff concerned were dealing with the applicant in any way or manner inappropriate in the course of the incidents, or they were untoward events at the school.

98.In addition, I also take into account that before the Meeting or the 3 consecutive incidents, the applicant’s mood problems made her prone to be emotional and agitated, and that her reactions to these incidents might be so affected. When considering the applicant’s personal condition, it is paramount to determine the nature of the incidents. Based on Case (2), the nature of an incident constituting an “accident” must be that it is beyond the capability of the employee to perform his/her duty. The duty involved in the 3 incidents, however, is not beyond the capability of the applicant to perform, and therefore it is not an “accident”.

99.In conclusion, based on the above analysis, whether one takes account of the Meeting as a single incident or the Meeting and the incidents in the two days prior to the Meeting together, I do not consider that there is sufficient evidence that the Meeting or the 3 cumulative incidents constitute an “accident”. Judging the alleged accident in the present case using common sense, I consider that it could not possibly constitute the “accident” as referred to in the Ordinance.

100.Accordingly, I find, on the balance of probabilities, the applicant has failed to prove that anything happened to her “by accident”.

101.As counsel submitted, if the Court finds the applicant has failed to prove that the Meeting (or a series of 3 incidents) constitutes an “accident” as required by the Ordinance, I should then dismiss this employee’s compensation application without considering Issue (2), that is, whether or not the injury the applicant sustained was caused by the Meeting or its consequences. For completeness, I would discuss this a bit below.

H. Issue (2): Was the personal injury the applicant diagnosed with after the Meeting caused by the Meeting?

102.The “personal injury” as provided by the Ordinance must be caused by accident, that is, there must be causation. Put another way, if the personal injury did not relate to an accident, the applicant would have failed to prove her case.

103.Counsel did not cite the Court of Appeal case of Lee Kin Kai v Ocean Trampling Co Ltd (t/a Ocean Tramping Workshop)[20], however, in my view, in relation to the causation between a personal injury and an accident, what the Court of Appeal discussed in that case (at pages 3 and 4) is an established principle, which should be indisputable. I now quote it below:

“The onus of proof is upon the applicant upon the balance of probabilities…

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…

"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"”.

104.To put it simply, the applicant must prove, on the balance of probabilities, the personal injury she sustained was caused by accident.

105.Given that judges do not have medical knowledge, under certain circumstances, medical experts could assist the court by providing medical opinions. However, in finding whether “personal injury” was caused by accident, judges are not bound to rely on the assistance of medical experts, they must decide using common sense.

106.I shall analyse Issue (2) based on the above principles.

107.In considering the causal connection, I should first take into account that prior to the alleged accidents in this application, the first and the second injuries arising out of the employment mentioned in B.1 and B.2 had occurred.

108.The applicant’s injury, according to the Certificate of Review of Assessment, was “situational stress reaction resulting in psychiatric impairment” (see paragraph 14). Therefore, what counsel said in her written submission about the “Situational Stress Reaction” the applicant suffered not being an “injury” is not correct. Obviously, she has  ignored the assessment of the Board.

109.The personal injuries the applicant sustained in her first and second accidents arising out of employment were physical injuries. There is no clear evidence to prove that she herself had been suffering from an emotional condition. However, the applicant confirmed that she was emotionally unstable (see paragraphs 76 and 77). Also, I have mentioned above my observation on the applicant’s emotional problems – being prone to be agitated and to cry. I therefore believe that such inclination could possibly make her particularly weak in reacting to certain scenarios and less capable of withstanding stress. Hence, after the meeting with the Principal and the Vice-Principal, the applicant was diagnosed with symptoms of “Situational Stress Reaction”. In my view, this was likely caused by the applicant’s emotions, rather than the Meeting.

110.Based on the above discussion, I find, on the balance of probabilities, the applicant has proved that the Meeting was not the cause of the applicant’s injury.

Conclusions

111.Based on the above discussions, the answers to Issue (1) and Issue (2) are in the negative.

112.As the applicant has failed to prove the aforesaid issues, that is, she sustained “personal injury by accident” in the incidents, I order that this employees’ compensation application be dismissed. I need to mention, in particular, that, in my judgment, I have not mentioned the 13-page written “closing submission” by the applicant, given her submission mostly repeats or emphasises certain part of the facts of the case, with the other parts generally not related to the present case. In any event, I give my judgment after having considered her submission.

J. Order

113.I grant the following order: -

(1) This employees’ compensation application be dismissed.

(2) There be a costs order nisi that the applicant do pay the respondent the costs of this case, with certificate for counsel for the pre-trial review hearing and this trial, to be taxed if not agreed.

(3) In the proceedings where the applicant was legally aided, the applicant’s costs be taxed in accordance with the Legal Aid Regulations.

(4) The costs order nisi shall be made absolute in 14 days from today unless any of the parties applies to vary it by summons.

114.Lastly, I thank counsel for her assistance rendered to this Court in the present case, in particular, for the legal research she did and the authorities of the United Kingdom she provided.

115.In addition, whilst having entered judgment against the applicant, from the evidence I feel that the applicant is a teacher with a passion for education and a strong sense of responsibility. It is hoped that the applicant can try her best to manage her emotions and recover soon to continue to be a good teacher and be a good influence in education to students; to serve the field of education, and to make contributions to society.

116.As the said costs order nisi involves the Legal Aid Department, counsel for the respondent shall serve this judgment on the Legal Aid Department.

The applicant appeared in person

Ms Phillis Loh, instructed by Leung & Lau, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.