Yu Kwok Wa Suing By His Next Friend Lee Tsui Shan v. China Telecom Global Ltd

CACV 262/2019

[2023] HKCA 75

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 262 OF 2019

(ON APPEAL FROM DCEC NO 1849 OF 2016)

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BETWEEN

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Before:  Hon Chu VP, Cheung and G Lam JJA in Court

Date of Hearing:  6 December 2022

Date of Judgment:  13 January 2023

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J U D G M E N T

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Hon Chu VP:

1.I agree with the judgment of Cheung JA and G Lam JA, and the orders proposed at [67] below.

Hon Cheung JA:

I.  The applicant’s case

2.The issue before H H Judge Harold Leong was whether the applicant who suffered an intracerebral haemorrhage (meaning bleeding into the brain tissue) (‘ICH’)  said to be caused or contributed by heightened stress of work in the two week period leading to the mishap is an accident within the meaning of section 5 of the Employees’ Compensation Ordinance (‘ECO’)  Cap. 5 which entitles an employee to seek compensation if he suffers ‘personal injury by accident arising out of and in the course of the employment’.

3.The Judge rejected the claim for compensation. He first found that the applicant was not working under stressful conditions:

“65.  As such, the court does not find that the applicant has worked under “very intense and stressful condition” (or any increase in work stress)  at all in the period (from July 2014 or otherwise)  prior to the incident. There was, in fact, no significant change in his workload and lifestyle prior to the incident.”

4.He then referred to the medical evidence:

“ 44. Of course, it is not in dispute between the experts that the applicant has likely suffered from a pre-existing and undiagnosed high blood pressure which led to a disease called “hypertensive vascular disease” which in turn led to a high risk of cerebral haemorrhage. There is no expert opinion to suggest that the high blood pressure or the “hypertensive vascular disease” has been caused by the employment. It is also not in dispute that both high blood pressure and hypertensive vascular disease should take months or years to develop.”

5.He found the applicant’s pathological process of ICH was not ‘an accident’ within the meaning of section 5:

“ 78. In other words, the medical evidence shows that the pathological process of intracerebral haemorrhage is (at least in this case), much like the case of Faulds, a chronic and insidious process associated with various risk factors: some strongly, some weakly and some with uncertainty due to conflicting evidence.

79. The nature of the pathological process in this case is such that any risk factors like ‘chronic and severe psychological stress’ could not be identifiable as ‘an incident or incidents which qualified as the relevant “accident” that had caused the claimant’s injury’.”

6.In this appeal, Mr. Leong SC (together with Mr. Chan)  for the applicant maintains that the ICH suffered by the applicant was an accident.  His cognitive impairment as a result of the ICH was the injury.  He argues that the ICH happened by the ordinary exertion of employment of the applicant.  It is not necessary to rely on heightened stress as the cause or contributing factor to the ICH.

II.  Accident and Injury

7.The distinction between accident and injury has been clearly affirmed by the Court of Final Appeal in LKK Trans Ltd v Wong Hoi Chung (2006)  9 HKCFAR 103 where Ribeiro PJ held:

“ 30. 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.”

8.Further, in Sit Wing Yi Sibly v Berton Industrial Ltd (2013)  16 HKCFAR 105 Bokhary PJ held :

“ 21. It is undoubtedly the law that the accident must be distinct from the injury, with the accident being at least a contributory cause and the injury being the effect.”

9.He explained this as follows:

“  17.  ..... 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.”

10.See also this Court’s judgment in Sit Wing Yi Sibly [2011] 4 HKLRD 91.

III.  The UK authorities

1)  The older cases

11.Mr. Leong’s position on appeal treated in effect the term ‘accident’ as equivalent to ‘accidentally’ which was the approach adopted by some older UK authorities such as Steward v Wilsons and Clyde Coal Co Ltd (1902)  5 F. 120, Fenton v J Thorley & Co Ltd [1903] AC 443, Clover Clayton & Co Ltd v Hughes [1910] AC 242 and Fife Coal Co Ltd v William Young [1940] AC 479.  In Steward,Lord M’Laren at page 122 held:

“  It seems to me that the question is, whether the word “accident” pre-supposes some external and visible or palpable cause (e.g., the breakdown of machinery)  from which injury results to a workman, or whether there may be an accident when there is no derangement of the machinery or plant, or of the organisation of labour, and when the injury is entirely personal to the sufferer. ......

I think it is impossible so to limit the scope of the statute, and if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in, I consider that this is accidental injury in the sense of the statute.”

12.This view was adopted by Lord Macnaghten in Fenton at page 449.  He further repeated the idea of ‘accidental injury’ in Clover at page 248 that:

“  Your Lordships’ judgment, however, swept away these niceties of subtle disquisition and the endless perplexities of causation.  It was held that “injury by accident” meant nothing more than “accidental injury” or “accident”, as the word is popularly used.  It is not perhaps quite accurate to say that in that case a definition of the term “accident” was hazarded.  It would be more correct to say that the decision was that the word “accident” was to be taken in its ordinary and popular sense.”

13.Lord Loreburn LC at page 246 of Clover disapproved the idea that strain or exertion out of the ordinary is required for establishing an accident:

“ I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the county court judge that the strain in fact caused the rupture, meaning, no doubt, that if it had not been for the strain the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade. Nor do I think we should attach any importance to the fact that this man’s health was as described. If the state of his health had to be considered, there must be some standard of health, varying, I suppose, with men of different ages. An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health.”

14.Lord Atkin in Fife Coal Co at page 489 referred to ‘external accident’ such as an explosion in a mine and ‘internal accident’ which he elaborated as follows:

“  A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand.  In such cases it is hardly possible to distinguish in time between “accident” and injury; the rupture which is accident is at the same time injury from which follows at once or after a lapse of time death or incapacity.  But the distinction between the two must be observed.”

15.Mr. Leong also referred to the statement of Lord Diplock in Reg v National Insurance Commissioner Ex parte Hudson [1972] AC 944 at pages 1008-1009 that it was reasonable to suppose that the change of phraseology in the various UK legislation on employee’s compensation and benefits was deliberate.

2)  The modern view

16.In my view, whatever lingering doubt as to the true meaning of the word ‘accident’ had been removed by the House of Lords in Chief Adjudication Officer v Faulds [2000] 1 WLR 1035.  In that case, the House of Lords reviewed the UK legislations relating to employee’s compensation and benefits beginning with section 1(1)  of the Workmen’s Compensation Act 1897 (‘the 1897 Act’)  where the relevant wording is ‘personal injury by accident arising out of and in the course of the employment’ to, inter alia, section 97(1)  of the National Insurance (Industrial Injuries)  Act 1946 (‘the 1946 Act’)  where the relevant wording was changed to ‘personal injury caused ... by accident arising out of and in the course of employment’, and finally to section 94(1)  of the Social Security Contributions and Benefits Act 1992 (‘the Benefits Act’)  which adopts the wording of the 1946 Act.  The wording used in our ECO is based on those in the UK legislations prior to 1946.  Lord Clyde at page 1049 B emphasised the establishment of an accident notwithstanding the difference in phraseology in these legislations:

“ It seems to me, however, both from the earlier legislation and the more recent provisions to which I have referred, that one critical requirement for the satisfaction of section 94(1)  is the establishment of an accident. The accident must of course have caused personal injury to the claimant. And the accident causing such injury must have arisen out of and in the course of the claimant’s employment.”

17.Earlier, at page 1048 C, he disapproved the idea that ‘accident’ is to be construed equivalent to ‘accidentally’:

“ ... the expression ‘by accident’ is not to be taken so widely as to be equivalent to ‘accidentally’.”

18.Lord Hope of Craighead at page 1048 C likewise repeated the disapproval:

“  It seems to me plain without going further that for the purposes of section 94 what has to be identified is “an accident” and that the expression “by accident” is not to be taken so widely as to be equivalent to “accidentally.”  The point is followed through in the associated administrative provisions.”

19.Lord Hope at page 1042 D was further of the view that the dicta of the earlier cases on the meaning of accident such as Stewart, Fenton, Clover ‘are too widely expressed for the purpose of the Benefits Act’.  He held that:

“ There must be a causative event or incident which can be described as ‘an accident’.”

20.Lord Clyde at page 1049 D likewise held that Lord Macnaghten’s view in Clover ‘may however now open to question’.

21.Mr. Leong argued that the earlier authorities have never been expressly overruled.  In my view, these statements by Lord Hope and Lord Clyde are a courteous way of disagreeing with the views expressed in the earlier decisions and in effect held that they should not be followed.

22.Lord Hope at page 1043 B also addressed the sometimes blurred line between accident and disease or conditions similar to a disease which may be described as a process caused by disease:

“ In regard to diseases or conditions similar to a disease, it may not be possible to discern a sharp dividing line between ‘accident’ and ‘process’. In such cases the mere fact that the condition may be said to be due to a process will not be sufficient to defeat the claim. But the distinction between accident and process is nevertheless a useful one. It serves as a reminder that what one is looking for in every case is an event or incident, or a series of events or incidents, to which the condition can be attributed.”

23.Lord Clyde also addressed the issue of disease, weakness or pre-disposition at page 1050 C:

“ In the performance of physical work the making of what may for others be an ordinary exertion but which, on account of some disease or weakness or other predisposition is excessive for the individual undertaking it may constitute an accident in his case. But here again the distinction between accident and injury can be identified.”

24.The UK Court of Appeal in Secretary of State for Works and Pensions v James Scullion [2010] EWCA Civ 310 applied Faulds and after referring to the statements of Lord Hope on process, held that an unexpected cardiac attack might not in itself and without more, constitute an accident:

“ 51. ..... it is impossible to draw from those statements a principle of law that an unexpected cardiac arrest might, in itself and without proof of any external cause, constitute an ‘accident’ for the purposes of the 1992 Act. Therefore, in my view, the Commissioner erred in holding, in paragraph 7 of his decision, that the claimant’s cardiac arrest might, as a matter of law, constitute an ‘accident’.”

III.  Matter of Evidence

25.Ultimately, in each case it is for the applicant to adduce evidence to prove the accident. Dealing with the case of a claimant who suffered from post-traumatic stress disorder after serving as a senior fire officer for 27 years in the fire brigade, Lord Hope in Faulds held at page 1039 D:

“  In the light of these authorities it seems to me that there would have been no difficulty in the respondent’s case if he had led evidence to show that his post-traumatic stress disorder had been attributable to the shock or distress which he suffered when attending a single incident, or each of a series of incidents, in the course of his employment as a senior fire officer.  The effect which the incident or series of incidents had on him would have been, in Lord Lindley’s words, an “unexpected and unintended loss or hurt,” whatever view one might take as to whether the incident which produced that effect was or was not an accident.”

26.In this case, the Judge had made factual findings that the applicant did not suffer heightened stress in his work in the period leading to the injury.  The Judge further held that the injury was not caused by an accident but by a pathological process which is simply a more elaborate way of describing the process caused by the disease.  In my view, the applicant is not able to show that the Judge is plainly wrong on this finding.  As stated earlier, Mr. Leong now submits that even without being able to prove heightened stress, nonetheless, the ordinary exertion of employment is sufficient for the applicant to show that ICH is an accident.  It is of note that this ‘ordinary exertion’ approach was not how the applicant pleaded or conducted his case below.  The Judge was never asked to address the issue in such a way and in my view it is not open to the applicant to rely on this approach now.  This issue clearly requires evidence both medical and factual that, given the condition of the applicant, the making of what may for others be an ordinary exertion, is excessive for the applicant. Such evidence is lacking.  As the matter now stands, just as in Scullion where it was held that it was an error to find an unexpected cardiac attack might in itself and without proof of any external cause, constitute an accident, the same reasoning applies to the ICH in this case.

IV.   Difference between external and internal accident

27.I would like to briefly address the distinction between external and internal accident drawn by Lord Atkin in Fife Coal Co. Ltd.

28.With respect, I do not regard the description of external and internal accident to be helpful in identifying whether there is an accident causing injury to the employee.  The examples given by Lord Atkin of an internal accident such as ‘rupture, an aneurism bursts, the muscular action of the heart fails’ are now more readily understood to mean a process caused by disease as discussed in Faulds.  But even in such a situation, for the purpose of the ECO, the triggering event for compensation is still an accident.  In my view, it is best to avoid using the term ‘external and internal accident’, instead, the Court should focus on whether an accident has occurred as emphasised by Lord Hope in [21] and [22] above.

29.I too will dismiss the appeal.

Hon G Lam JA:

30.The applicant suffered a severe haemorrhagic stroke while at work on 26 August 2014, resulting in left hemiparesis.  He made an application to the District Court against his employer, the respondent, for employees’ compensation, but failed, and now appeals to this court.  The question both below and on this appeal is whether there was “personal injury by accident arising out of and in the course of the employment … caused to an employee” within the meaning of section 5(1)  of the Employees’ Compensation Ordinance (Cap 282)  (“ECO”).

Background

31.The relevant factual background can be stated shortly. The applicant was born in 1968, and had been employed by the respondent as a data centre manager since 2012.  On 26 August 2014, while waiting for a colleague in the lift lobby of the respondent’s data centre in Chai Wan, the applicant felt unwell and soon collapsed.  He was taken to a hospital and found to have suffered an intracerebral haemorrhage in his right brain.  An emergency right craniectomy was performed for clot evacuation.  The applicant was discharged from the hospital in December 2014.  Initially he suffered from complete left hemiplegia, but his condition gradually improved.  By the time of the joint assessment by the neurology experts in May 2017, the applicant had regained normal mental capacity, but still suffered from spastic left hemiparesis and left homonymous hemianopia, which were considered to be permanent disabilities.

32.Proceedings were brought by the applicant against his employer, the respondent, in the District Court for employees’ compensation.[1] In his Application filed in August 2016 and amended in January 2018, it was alleged that the applicant collapsed and lost consciousness as a result of rupture and/or infarction causing bleeding into the brain, which was referred to as the “Accident”.  It was alleged that immediately before the Accident, the applicant had been continuously working under stress, exertion and/or exhaustion for 14 days without any day off and was required to be on call for 24 hours a day, and that “[e]xcessive stress, exertion and/or exhaustion were occasioned from work which caused an/or contributed to the Accident”.

33.In line with his pleading, the applicant’s witness statement dated 13 March 2018 referred to two projects of the respondent which required his urgent attention and increased his workload in August 2014.  It was said that two experienced colleagues had recently left so that the applicant had to shoulder all the relevant responsibilities.  A new colleague had joined the data centre at Fo Tan but needed teaching and guidance from the applicant.  It was stated that during those two weeks the applicant was busier than usual, had to work after going home including sometimes on weekends, and had to be on call 24 hours a day, and became very tired and stressed.

34.Based on the information provided by the applicant along the lines of his pleading and witness statement, the applicant’s neurology expert, Dr Chan Sze Tong, commented that:

“ In summary, we have seen scientific evidence that psychological stress is significantly associated with an increased risk of stroke. Also work related stress, overwork and lack of sleep has been shown to cause an increase in the blood pressure of hypertensive patients. If Mr. Yu has indeed been working under very intense and stressful conditions for a prolonged period of time, his high blood pressure would have been aggravated by those job-related factors. On a balance of probability, I believe that job-related stress and overwork have contributed to his intracerebral haemorrhage.”

35.In his judgment dated 20 December 2018 (“Judgment”),[2] H H Judge Harold Leong identified the following issues: (1) whether as a matter of fact the applicant had been “working under very intense and stressful conditions for a prolonged period”; (2) whether there is medical evidence showing a causal link between stress and intracerebral haemorrhage; (3) if there was a link, whether the pathological process of this link could be identified as an incident or incidents which qualified as the relevant accident that had caused the applicant’s injury.

36.On the first question, in cross-examination the applicant described his typical working day as getting up at around 7 am and checking work emails.  He would leave home at around 8 am and buy a breakfast to bring to the office.  He would have his breakfast and start working at around 9 am.  He would have a lunch break from 12:30 pm and, after return from lunch, he would take a nap from 1:30 pm until 2 pm, and then work until 5:30 pm.

37.The judge noted there were numerous inaccuracies in the applicant’s witness statement, as admitted during his cross-examination.  The judge considered that the applicant was not dishonest but was likely to have remembered matters wrongly because his cognitive function and concentration had been affected and also perhaps due to “recall bias”.  The judge described the applicant as having “walked back” from the evidence in his witness statement in the face of the records and evidence produced by the respondent, and recorded the applicant’s admission that there had been no major change in his usual life routines and habits in the period before the incident.  The judge also noted that the testimony of the applicant in court was substantially different from the information given to the experts.  In conclusion, the judge did not find that the applicant had worked under very intense and stressful condition (or any increase in work stress)  at all in the period prior to the incident.[3]

38.On the second question, the judge concluded from the expert evidence that there is a consistent finding of a strong association between hypertension, which the applicant had probably suffered from but remained undiagnosed until after the incident, and intracerebral haemorrhage. There was, however, conflicting evidence on the association between stress and intracerebral haemorrhage (the association between stress and ischaemic stroke being more consistent).  Studies that found an association referred to a severe degree of psychological or psychosocial stress.  The experts were unable to locate a more detailed definition of what constituted “psychological stress” or “psychosocial factor” as referred to in certain studies.  The judge considered that the applicant’s circumstances from July 2014 to the date of the incident could not nearly be categorised as a “severe” degree of psychological stress.[4]

39.On the third question, the experts agreed that the stress, if indeed a predisposing factor, had to be for a prolonged period. The judge accepted that such stress had to be for years, not weeks or months, to exert its deleterious effect.  The judge concluded that the pathological process of intracerebral haemorrhage was, at least in this case, a chronic and insidious process associated with various risk factors – some strongly, some weakly, and some with uncertainty due to conflicting evidence.  Any such risk factor as chronic and severe psychological stress could not be identified as an incident which qualified as the relevant accident that caused the injury.[5]

40.For these reasons, the judge dismissed the applicant’s claim.

The appeal

41.On behalf of the applicant, Mr Alan Leong SC and Mr Alwin Chan (both of whom did not appear below)  have essentially advanced three main grounds of appeal:

(1)  The judge should have found the applicant’s intracerebral haemorrhage to be the “accident” for the purpose of section 5 of the ECO.

(2)  Once there was an accident arising in the course of the employment, by section 5(4)  the causal link between the employment and intracerebral haemorrhage was presumed, so that the burden fell on the respondent to prove that other factors extraneous to the employment were the sole cause of the intracerebral haemorrhage. 

(3)  The judge erred in finding that the applicant did not suffer from an increase in stress during the period leading to the day of the intracerebral haemorrhage.

42.The first point is the principal contention and indeed the pre-condition for the second point.  Unless there was an accident, it is unnecessary to discuss whether it arose out of the employment.

Was there injury by accident?

The legislation

43.Section 5 of the ECO provides:

“ 5. Employer’s liability for compensation for death or incapacity resulting from accident

(1)  Subject to subsections (2)  and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.

……

(4)  For the purposes of this Ordinance—

(a)  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 …”

44.Section 5(1)  is modelled on section 1(1)  of the UK’s Workmen’s Compensation Act 1897 which enacted that:

“ If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall … be liable to pay compensation …”

This form of wording was maintained in the Workmen’s Compensation Acts of 1906 and 1925 respectively.

The pre-1946 UK cases

45.On this appeal, Mr Leong submits that a number of UK decisions on the Workmen’s Compensation Acts 1897–1925 had established that “injury by accident” had the same meaning as “accidental injury” and that for the purpose of claiming workmen’s compensation, there was no need to prove an “accident” as a distinct event separate from and preceding the injury.  He points out that the wording of section 5 of the ECO is taken from the Workmen’s Compensation Acts and that the statutory scheme in the UK had been altered since 1946 with a materially different wording.  He submits, therefore, that guidance should be sought from the pre-1946 UK authorities rather than those decided on subsequent, differently worded statutes.  Applying the approach in those authorities, the judge should have found that in this case – a case of an “internal accident” – the intracerebral haemorrhage was both the injury and the accident, satisfying the requirement of injury by accident.

46.Mr Leong further submits that the post-1946 UK cases, in particular Chief Adjudication Officer v Faulds [2000] 1 WLR 1035, were decided on the basis of differently worded legislation, and should not be followed for the purposes of interpreting section 5 of the ECO.  He submits that in so far as the Court of Final Appeal stated in Sit Wing Yi Sibly v Berton Industrial Limited (2013)  16 HKCFAR 104 that the accident must be distinct from the injury, it was distinguishable as being a case where the cause of death was unknown.

47.I am, with respect, unable to accept the applicant’s contention.  In the first place, on a proper examination, the pre-1946 UK cases referred to do not, in my view, assist the applicant.

48.In Stewart v Wilsons and Clyde Coal Co Ltd (1902)  5 F 120, a miner strained his back while replacing a derailed coal hutch on the rails.  The Court of Session found the case to fall within the 1897 Act.  The court held that there was an accident even though there was no derangement of machinery or plant or organisation of labour.  But it is clear that it was something untoward and unexpected in the performance of work that resulted in injury.  As Lord Kinnear put it, the workman was lifting hatches which were too heavy for him.  Mr Leong relies on Lord M’Laren’s statement that “if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in, … this is accidental injury in the sense of the statute”.  Leaving aside that this dictum was considered by Lord Hope in Faulds to have been too widely expressed for the purposes of the subsequent legislation,[6] the phrase “as the result of the work he is engaged in” shows that even on the basis of Lord M’Laren’s statement, a physiological injury does not, in itself, constitute “injury by accident”.

49.In Fenton v J Thorley & Co Ltd [1903] AC 443, a workman ruptured himself from over-exertion while turning the wheel of a machine.  The House of Lords, rejecting the argument that to obtain compensation the workman must have been doing something that he did not intend, held the case to be within the 1897 Act.  Lord Macnaghten said that the expression “accident” was used in the Act 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.[7] Essentially, the workman there had met with an accident in trying to move something too heavy for him.[8]  There is nothing in the case that suggests accident and injury are the same thing.

50.In Clover, Clayton & Co Ltd v Hughes [1910] AC 242, a workman, while tightening a nut by a spanner, died from the rupture of an existing aneurysm of the aorta.  The trial judge found that the death was caused by a strain arising out of the ordinary work of the man operating upon a condition of body which was such as to render the strain fatal.  By a 3-2 majority, the House of Lords held that there was evidence to support that finding and held this to be a case falling within the 1906 Act.  In a passage on which Mr Leong places much reliance, Lord Macnaghten said:[9]

“ [In Fenton v Thorley] the Court of Appeal had held that if a man meets with a mishap in doing the very thing he means to do the occurrence cannot be called an accident. There must be, it was said, an accident and an injury: you are not to confuse the injury with the accident. Your Lordships’ judgment, however, swept away these niceties of subtle disquisition and the endless perplexities of causation. It was held that ‘injury by accident’ meant nothing more than ‘accidental injury’ or ‘accident,’ as the word is popularly used.”

51.Such a broad statement as the third sentence quoted above, even from as eminent a jurist as Lord Macnaghten, has to be approached with caution, especially as it was concurred in by none of the other members of the court.  The trial judge had found as a fact that the rupture of the aneurysm was caused by the strain put upon the workman by the exertion of tightening the nut.  Even though the strain might have been no more than ordinary in such work, it was too heavy for him and was unexpected by him.  It was in these circumstances that the House upheld the decision below in favour of compensation.  As Lord Loreburn recognised, an accident may encompass something wrong with the human frame itself, such as the breaking of a blood vessel.  “If that occurred when [the workman] was lifting a weight it would be properly described as an accident.”[10] Likewise, Lord Macnaghten said: “Accidents due to a man’s own fault are for the most part the result either of inadvertence or miscalculation.  If a man miscalculates his powers and so fails in what he attempts to do and … injures himself, … the untoward occurrence would popularly be called an accident.”[11]  There was no suggestion that a disease of the body presenting symptoms could in itself be regarded as injury by accident.

52.Finally, in Fife Coal Co Ltd v Young [1940] AC 479, a workman had been working as a packer in a coal mine, adopting a continual kneeling position for his right knee.  He was later found to suffer from “dropped foot”, a paralysis of the muscles of the leg caused by pressure on the peroneal nerve which prevented dorsiflexion of the foot.  The House of Lords held that the case fell within the 1925 Act.  Lord Atkin, in a passage quoted by the judge in his Judgment,[12] said:

“ It is necessary to emphasise the distinction between ‘accident’ and ‘injury,’ which in some cases tend to be confused. No doubt the more usual case of an ‘accident’ is an event happening externally to a man. An explosion occurs in a mine, or a workman falls from a ladder. But it is now established that apart from external accident there may be what no doubt others as well as myself have called internal accident.

A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases it is hardly possible to distinguish in time between ‘accident’ and injury; the rupture which is accident is at the same time injury from which follows at once or after a lapse of time death or incapacity. But the distinction between the two must be observed …” (italics added)

53.Relying on the passage italicised above, Mr Leong submits that the intracerebral haemorrhage was both accident and injury suffered by the applicant.  With respect, I do not think Fife assists the applicant.  In that case Viscount Caldecote, with whom three other Law Lords agreed,[13] affirmed the correctness of several previous cases where the employees had failed in their claims because it was impossible to identify any event which could, however loosely, be called an accident.[14]  In the earlier case of Ormond v C D Holmes & Co Ltd [1937] 2 All ER 795, the employee suffered a stroke but was denied compensation under the 1925 Act because it was found as a fact that the work on which he was engaged on that day had neither caused, nor contributed to, nor accelerated the stroke.  Viscount Caldecote referred to Ormond as “an illustration of the necessity of establishing facts which justify a finding that the injury was due to some specific unlooked-for mishap or untoward event”.[15]  In Fife itself, the court laid emphasis on the fact that the pressure on the workman’s nerve as a result of his work on the day in question brought about the paralysis of his muscles, and that this sufficed to give rise to injury by accident.[16]

54.As regards the passage from Lord Atkin’s speech, it will be noted that his Lordship stated that the distinction between accident and injury “must be observed”.  When the passage is read in its proper context, together with an earlier passage where Lord Atkin referred to the facts as showing “a physiological change brought about by an undesigned untoward event happening in the employment”, it is clear that it was not intended to suggest that, for example, any rupture was to be regarded as an accident under the Act, but only one that was at least contributed to by the employee’s performance of his work.  While Lord Atkin said the rupture was accident (as well as injury), he did not state that the rupture alone was the accident.  In such a case it seems to me that to avoid confusion, it would be more accurate to say that the whole event in which the workman ruptured himself whilst, for example, endeavouring to turn the wheel of a machine was an accident: see per Lord Clyde in Faulds at p 1049H.  In a similar vein, Lord Hope said in Faulds at p 1043D that “the sustaining of an unexpected personal injury caused by an expected event or incident may itself amount to an accident” (original italics).

55.Thus analysed, the pre-1946 UK cases referred to by Mr Leong show that where the injury from a disease or a particular vulnerability of the body has been triggered, contributed to, or accelerated by some particular act at work, the injury may properly be called injury by accident caused to the employee within the meaning of the Workmen’s Compensation Acts.  They do not show that injury from a disease or a particular vulnerability of the body may in itself be regarded as an accident or should without more be presumed to be injury by accident simply because it was suffered by an employee during working hours. 

Post-1946 UK authorities and Hong Kong authorities

56.Mr Leong submits that the post-1946 UK cases were decided with reference to differently worded legislation and provide no guidance for the interpretation of the ECO.  In particular, he points out that the statutory scheme in the UK had been changed since 1946 and the relevant phrase in the National Insurance (Industrial Injuries)  Act 1946 and subsequent enactments including the National Insurance (Industrial Injuries)  Act 1965, the Social Security Act 1975 and the Social Security Contributions and Benefits Act 1992 has become “personal injury caused … by accident arising out of and in the course of the employment”.  Relying on Lord Diplock’s remark in R v National Insurance Commissioner, ex parte Hudson [1972] AC 944 at 1008H that it was reasonable to suppose that the change in phraseology was deliberate, Mr Leong submits that post-1946 UK authorities do not provide guidance for the interpretation of the ECO. 

57.We are not called upon to interpret the different wording found in subsequent UK legislation and it will not be fruitful to try to decipher the precise effect of the change in wording.  To the extent that the modern UK cases such as Faulds and Secretary of State for Work and Pensions v Scullion [2010] EWCA Civ 310 refer to the need to identify an accident that is distinct from injury, however, I consider that the same approach is applicable under the ECO.  This is the approach evident from authoritative decisions in Hong Kong.

58.In LKK Trans Ltd v Wong Hoi Chung (2006)  9 HKCFAR 103, Ribeiro PJ referred to as uncontroversial the proposition that section 5 of the ECO requires a causal connection between the employment and the accident (so that the accident arises “out of” the employment), and between the accident and injury suffered by the employee.

59.In Sit Wing Yi Sibly, an employee was found slumped on the ground in a toilet at work.  He had died before arriving at the hospital, and the body was cremated without an autopsy being performed. The cause of death was unknown.  It was argued that as the death was not accounted for by the deceased’s medical history, it was an unexpected event and thus an “accident” within the meaning of section 5 of the ECO; and that since it occurred during his working hours, it arose “in the course of” employment and was therefore deemed, in the absence of contrary evidence, to have “arisen out of” that employment.  In the Court of Appeal,[17] Yuen JA, rejecting the argument, said:

“ 41. It seems to me that that argument elides the concepts of ‘injury’ and ‘accident’ in the phrase ‘injury by accident’. The unexpected nature of the ‘injury’ itself does not constitute the act or event or occurrence of a mishap which is the ‘accident’. An applicant for compensation must show that there has been an accident that produced the injury (see Fife Coal at 486 and Fenton v Thorley at 453: ‘an unintended and unexpected occurrence which produces hurt or loss’).

42.  Death caused by disease alone would not qualify for compensation even if the disease was unknown (and thus unexpected).  There would have to be an acceleration of the death by a particular (even if not unusual)  act of exertion in the course of employment – in which case the death may be said to have been caused by an accident (Ormond v C D Holmes & Co Ltd at 800).  Even if there was an ‘internal accident’, i.e. a physiological change invisible from outside the body (such as a rupture of an aneurysm), it must still have been brought about by ‘an undesigned untoward event happening in the employment’ (Fife Coal p. 488).”

60.In the Court of Final Appeal, Bokhary NPJ, dismissing the appeal, said:

“ 17. … 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. …

21.  It is undoubtedly the law that the accident must be distinct from the injury, with the accident being at least a contributory cause and the injury being the effect.”

61.Mr Leong tries to distinguish Sit Wing Yi Sibly on the ground that the cause of death there was unknown, but I do not consider it can be distinguished on this basis.  The reasoning in the decision clearly requires the identification of an act or incident which constitutes the accident causing the injury.  As pointed out in Faulds (at p 1049D & G), there may be cases where the elements of accident and injury overlap, and where the accident comes about through the employee’s own activity, the distinction between accident and injury may be more subtle.  But the distinction can still be identified, even if the incident consists in the performance of work which requires what may for others be no more than an ordinary exertion.  Accordingly I reject Mr Leong’s submission that the applicant’s intracerebral haemorrhage was both the accident and the injury in this case, satisfying the requirement of injury by accident.  The judge was right to look for an incident or incidents that had a causal link to the injury in question.

62.In the course of his oral argument, Mr Leong submitted that the work being performed by the applicant on the day could be compared to the work in previous cases, like turning a spanner in Clover. If the applicant had suffered injury from the work, it should be held that there was injury by accident, even if the work did not require any extraordinary exertion.  He submitted that Dr Chan had said that stress could increase hypertension, that the experts had no dispute that hypertension could cause intracerebral haemorrhage, and that the judge did not find that hypertension was the sole cause of intracerebral haemorrhage to which the applicant’s employment contributed nothing.  Mr Leong also pointed out that the respondent’s expert, Dr Woo, said that “chronic stress may be dubiously associated with the risk of hypertension”, and submitted that it was common sense that there was stress from work.

63.In my view this submission does not get off the ground.  The applicant’s case was run at trial on the basis of his pleading that it was the excessive stress, exertion and exhaustion in particular within the 14 days before the day in question that caused or contributed to the intracerebral haemorrhage.  His medical evidence was prepared on the basis of factual allegations that the applicant had worked in the 14-day period under “very intense and stressful condition”.  That case was rejected by the judge on the evidence.  In my view it is not open for the applicant on the pleadings and the evidence to run a different case now.  Dr Woo’s own evidence was not that there is a connection between work stress and hypertension.  He reviewed the articles referred to by Dr Chan, noting that they showed “at most a weak or dubious association”.  The doctors noted that both the applicant’s father and elder sister had a stroke in 1999 and 2011 respectively.  There was no further investigation of the connection between any chronic hypertension and the applicant’s work as this was not the pleaded case (indeed the applicant denied any history of hypertension[18]).

64.For the injury to come within the ECO, there must be some evidence, at least sufficient to support an inference, that the stroke had something to do with the applicant’s work, but there is simply none here: see also Wong Yuet Yung v Wah Fung Hong Gas Engineering Co Ltd (CACV 33/2007, 19 February 2008); Chow Mui v Chow Cheuk-chung [1970] HKDCLR 94.

Other grounds

65.Since the applicant has failed to establish that there was personal injury by accident, it is unnecessary to consider whether the accident arose out of his employment, which is the subject matter of the second ground of appeal.

66.As to the third ground of appeal which challenges the judge’s findings of fact, Mr Leong has not advanced any submissions in support of it.  It is sufficient to say that we do not see any basis for interfering with those findings.

Conclusion

67.Much as I sympathise the applicant, it follows from the above that the appeal must be dismissed.  I would therefore dismiss the appeal with costs with a certificate for two counsel, and order that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Alan Leong SC & Mr Alwin Chan, instructed by Messrs. Y.K. Lau & Chu, assigned by the Director of Legal Aid, for the Applicant (Appellant)

Ms Christina Lee, Mr Jeffrey Chau & Mr Bernard Lam, instructed by Messrs. Boase, Cohen & Collins, for the Respondent (Respondent)