Leung Koon-chun v. City Act Trading Ltd. t/a Bright Light Engineering Co.

DCEC000915/2000

DCEC915/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 915 OF 2000

Coram: H H Judge Carlson in Court

Dates of Hearing: 16 April 2002, 17 April 2002   & 18 April 2002

Date of Judgment: 24 April 2002

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J U D G M E N T

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1.INTRODUCTION.

This is a claim for employee's compensation which is made by the applicant, Mrs Leung Koon-chun, who is the widow of the late Chow Kam-wing (the deceased), for herself and for his other dependants.

2.The deceased, who was a carpenter, had been employed by the respondents. They are contractors to television and film production companies, who engage them to build stage and production sets both indoors at studios and at outdoor locations. Much of this work entails the use of skilled carpenters such as the deceased to build wooden background sets.

3.At about 2 am on 1 November 1998, the deceased was engaged in putting up a stage for a forthcoming performance on the open ground at Admiralty that was once the British Naval Basin at HMS Tamar. In the course of his work he had a heart attack, collapsed and, some hours later, died of the effects of that heart attack. He was 45 years old. He left behind his widow and three teenage children.

4.An employer becomes liable to pay compensation by virtue of section 5(1) of the Employees Compensation Ordinance (the Ordinance) which is in the following terms:

"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."

5.THE ISSUE.

The issue in this matter comes about in this way. A post-mortem examination was performed on the deceased. The results of that examination are at pages 1 to 6 of bundle B. The cause of death is given as "coronary atherosclerosis". The anatomical diagnosis was "advanced coronary atherosclerosis with involvement of left anterior descending and right coronary artery". The left anterior descending artery was 95 per cent occluded with atheroma or plaque, and the right coronary artery was 80 per cent occluded. It is plain therefore that the deceased's heart was in an unhealthy state, which made him a prime candidate for a heart attack where the blocked arteries would have deprived the heart of its vital blood supply.

6.On behalf of the applicant, it is submitted that the deceased's heart attack and consequent death was contributed to by the stress and strains of his work, which would qualify his widow for compensation.

7.The respondent's case is that the effects of his employment played no part in the fatal heart attack. Given the seriousness of his blocked arteries, he could have suffered a heart attack anywhere and at any time. This was not an "accident arising out of and in the course of his employment", and therefore the claim should fail.

8.That is how the matter is presented to the court for resolution. I will need to examine a number of matters in some detail.

9.THE DECEASED'S MEDICAL AND PERSONAL HISTORY.

This comes mostly from his widow, and the medical history is usefully supplied by Dr Raymond Lam, a general practitioner who he consulted many times from March 1989 until August 1998, some three months before he died. The applicant and the deceased were married in 1978. As I have already indicated, they had three children. She has described him as a good family man and a dedicated worker who, by dint of hard work, was able to provide well for his family. He was of mild temperament, and they had a contented family life. As to his health and lifestyle, she has described both as unremarkable save for the effects of overtime work latterly, to which I must make further reference in a moment. According to her, he ate sensibly at home; she cooked healthy food. He hardly drank and smoked very little.

10.She was cross-examined by Mr Sakhrani on behalf of the respondents concerning his visits to Dr Lam's surgery over the years, particularly in relation to high cholesterol levels in his blood and his smoking habit which Dr Lam had told him to cut out. On the question of cholesterol, she said that she did not consider it a matter of great moment, and that she expected that if there was a problem, it would have been put right with medication. It did not worry her, nor did she know much about the subject. She indicated that some members of the deceased's family also had suffered from high cholesterol, but this did not appear to concern him nor her. On the issue of smoking - and the evidence has been that he smoked about a packet a day, mostly at work - she was not aware of him being a heavy smoker. He did not smoke at home; she thought perhaps only one or two cigarettes a day at work. As to alcohol consumption, she described him as a light social drinker with friends of his. He did not drink at home. On the question of his visits to Dr Lam, she was not aware that he had visited Dr Lam as frequently as is shown in Dr Lam's medical notes. Overall, she considered the deceased to be in pretty good shape, not overweight, and with nothing to worry about in terms of his health.

11.Mr Tam, the deceased's employer, gave evidence which dealt with the circumstances of the incident at work which gives rise to the application and to which I will return presently, but also about the question of smoking and drinking. His evidence, which I accept, was that during work and after work the applicant would, as he did, smoke cigarettes. His estimate was that he smoked a packet a day. That was based on the fact that they would go and buy their cigarettes together. As to drink, he said that with his work colleagues, the applicant would go out for a meal, when he would consume three or four beers. That was not remarkable; it was "thirsty work" and they would all down a few beers. This was a regular feature of after-work socialising amongst the various workmen.

12.And so the picture emerges of a one packet a day man and someone who enjoyed a few beers after work. Whilst the consumption of beer in these quantities might not be cause for concern, the regular smoking of a packet of cigarettes every day would not be considered wise, particularly when the deceased's heart and cholesterol levels should have given him reason to stop smoking.

13.With that, I turn to the evidence of Dr Lam. Initially he had treated the deceased for an ulcer. Subsequently he carried out some blood tests and discovered high levels of cholesterol. He advised the deceased to cut down his consumption of fatty foods, stop smoking, and to take medication especially prescribed to lower cholesterol in the blood. The deceased purchased this medication from Dr Lam's dispensary. Dr Lam is unsure whether the deceased continued with the course of treatment. He says that, partly because his notes do not show a continuous pattern of purchases from his dispensary, but he readily accepts that there would have been nothing to prevent the deceased making these purchases from other sources.

14.What is certain is that further blood tests were not carried out by Dr Lam to monitor cholesterol levels. The deceased saw Dr Lam on many occasions over the years for a variety of ailments which of themselves were not particularly serious. On occasions, he gave him sick leave certificates. He would repeat his advice about smoking.

15.The impression one gets of the deceased is of an active man, given the manual labour that he had to perform at work, who overtly, at all events, enjoyed pretty reasonable health. There was the problem with ulcers and the odd flu-type symptoms which laid him low, but he was certainly up to the physical demands of his job. Nevertheless, whilst this was going on, his arteries were progressively clogging up.

16.Before I turn to the evidence of the medical experts, I should describe the periodic long hours that the deceased had to work for these employers, and also over a long spell of some 10 years working for ATV, the television production company.

17.The time at ATV is described by Mr Tang Tong. His statement at page 113 was admitted without calling him, (bundle A). Normal working hours at ATV were from 9 am to 6 pm, but if the company was busy, as they were in the 1980s, overtime needed to be done, usually an extra six hours - in other words, until midnight - and this could be as often as four times a week. The impression I get is that the frequency of such overtime was reduced in the 1990s, although it did occur as a feature of the deceased's pattern of work. This was no straightforward 9 to 5 job.

18.Then, in the early part of 1998, ATV restructured its business and the deceased became redundant. He was able to find employment with the respondents shortly afterwards in March 1998. A real feature of this case, particularly from the applicant's point of view, is the number of hours that the deceased put in by way of overtime. The overtime record appears in bundle C, pages 4(a) to 6. In October it was 77 hours, which of course is very substantial. This included a period of 24 hours from 10 October which saw him working over three days; a three-day shift, in effect. There was also a long period of 14 hours on 14 October. All 77 hours of overtime were worked by him up to 19 October, which is of course a very substantial period in a relatively short space of time. When one works back over the time of his employment with the respondents, there was a steady amount of overtime, but nothing like the amount in October.

19.The other matter to observe on the question of working hours is that there was no overtime after 19 October, and it appears that the deceased was also able to take some time off work, no doubt feeling pretty drained after such a punishing schedule between the 1st and the 19th.

20.On the method of work the respondents called Mr Tam, whose evidence I have already referred to on the matter of the deceased's smoking and beer drinking. He has explained that at work, no one would be expected to be at it continuously. Breaks would be taken for meals at regular intervals and people could rest, and some would try to get some sleep. Other breaks would occur by virtue of the works programme. When some other contracting company was doing what they had been engaged to build or paint, or whatever skill they brought to the project, then the rest of them would have to stand by until the site became available to them again. This offered rest opportunities which might last some time. When long overtime was required, the same would happen and rest, sleep and refreshment would be taken. Nobody would or could be expected to be on the go continuously for 24 hours or for as long as the shift lasted.

21.I accept this description by Mr Tam, but that is not to say that these marathon spells of overtime were not physically and mentally draining. Mr Tam also described the physical demands of the work of a carpenter. He said this was not work that required the constant application of great physical strength in the way that labouring on a building site might call for. There was some lifting of wooden planks to be done. The heavier ones were done by two men, the lighter ones were easily carried by one person. The work, mostly entailing sawing, nailing and fixing, called for skill and experience rather than brute force.

22.I accept Mr Tam's description of the deceased's work routine whilst at work and the physical nature of the work which, whilst not exhausting, would, by the end of the day, leave the workman no doubt weary and ready for some well-earned rest and relaxation.

23.It should also be remembered that after so many years doing this type of work, the deceased would have got well used to the physical strains of the job and the effects of his labours would have toned, certainly his upper body muscles - arms and hands, to deal with what was required of him.

24.THE CIRCUMSTANCES OF THE INCIDENT.

The applicant says, and of course I accept, that the deceased did not feel up to going to work on 31 October. He stayed in bed longer, rested at home, and then went to work at about midnight. The applicant has said that he had felt tired that day, which made him remain at home. The account is then taken up by Mr Tam. His evidence is that the weather that night was freezy. The work required installing a stage. He accepts that it did require a degree of physical exertion because it required moving wooden planks before shaping them to the appropriate size prior to nailing them in place.

25.I have already described the physical demands of this relative to other manual occupations. He says that the deceased, who had been working for about two hours, collapsed as he was walking away from the stage to fetch some wooden planks to nail into position. These were of the thin variety so, relatively speaking, not very heavy. Prior to collapsing, the deceased had been doing some nailing of planks, a task he must have done on, quite literally, countless occasions. The fall caused an injury to his jaw, although that is not related to the fatality, nor is it relevant to the claim.

26.The deceased was then removed to hospital, where he initially rallied, but sadly died some hours later. This is what occurred.

27.Drawing on this evidence, the parties' respective medical experts have given their reports and their evidence to the court. It is to this evidence that I now turn.

28.THE MEDICAL EXPERTS.

Both parties have summoned weighty expertise to assist them. The applicant has called Dr Sam Narriman, who has had a long and distinguished career both in England and here in Hong Kong. He is a chest specialist, formerly a consultant chest physician to the Newcastle and Northern Regional Health Authorities, and has held similar consultancies in Hong Kong. The respondents have called Mr K.K. Ho, FRCS, one of Hong Kong's leading cardiothoracic surgeons and Chief of Service of the Department of Cardiothoracic Surgery at Queen Elizabeth Hospital, Kowloon. They are in profound disagreement about this matter, and notwithstanding firm and searching cross-examination, both have adhered to their fundamental opinions.

29.Dr Narriman says that the severity of the occlusions to his arteries meant that the deceased could have had a heart attack from which he could have died at any time and anywhere, including when he was fast asleep in his bed. To this extent, he and Mr Ho are in agreement. Nevertheless, Dr Narriman goes on from there to say the blockage in the coronary artery which was due to plaque rupture (the plaque being the atheromatous material occluding the artery) was due to a combination of physical and mental stress caused by the deceased's employment. His conclusion is of course derived from speaking to the applicant about the deceased in general, including his employment and the physical effects of that employment. Dr Narriman appears to have been impressed by the amount of overtime done by the deceased which he described as "a ridiculous amount of overtime".

30.From the description of his character, he was told that the deceased was an achiever and a perfectionist, he concludes that he had type A personality, who are prone to coronary artery disease. When Dr Narriman provided his first report dated 26 September 2000 (page 13, bundle B) he had not seen Dr Lam's notes which indicated that the deceased was a smoker and had high cholesterol levels.

31.Ultimately, Dr Narriman is convinced that the stress of work over the years caused by the demands of his work has resulted in the build-up of atherosclerosis, part of which ruptured, resulting in a blockage and a fatal heart attack. He sees this as being a direct result of his employment.

32.Mr Ho, having looked at the relevant material, is not impressed by the assertion that stress was the cause of the heart attack. He has concluded the build-up of atheromatous material in the arteries caused by smoking, high cholesterol and an incorrect diet had brought the deceased to the point where a heart attack could have happened at any time. The fact that it occurred during his work is entirely coincidental. Having said that, he did concede that research is now pointing to the fact that stress can precipitate an acute event such as this.

33.Nevertheless, all the other evidence points to the other longstanding features such as high cholesterol and smoking as having caused this tragic event.

34.THE LAW.

Before I indicate my view of the medical evidence it is necessary to consider the law which needs to be applied in such circumstances. In order to succeed, the applicant does not need to show that his heart attack is solely attributable to his employment. He need only show that his employment contributed to his fatal heart attack. One can conveniently start with a House of Lords decision in Clover Clayton & Company Limited v Hughes(?) [1910] AC 242. In that case, a workman suffering from serious aneurysm was tightening a nut when he suddenly fell down dead from a rupture of the aneurysm. The trial judge found that death was caused by a strain arising out of the ordinary work of the deceased operating on a condition of his body which was such as to render the strain fatal. By a majority the House of Lords held that the judge was correct in awarding compensation. Lord Loreburn L.C., at pages 246 and 247, observed that:

"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 his health. It may be said, and was said, that if the Act admits of a claim in the present case, everyone whose disease kills him whilst he is at work will be entitled to compensation. I do not think so, and for this reason: it may be that the work has not, as a matter of substance, contributed to the accident, though in fact the accident happened whilst he was working. In each case, the arbitrator ought to consider whether in substance, as far as he can judge in such a matter, the accident came from the disease alone, so that whatever the man had been doing, it would probably have come all the same; or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment taken together, looking at it broadly? Looking at it broadly, I say, and free from over-nice conjectures, was it the disease that did it, or did the work he was doing help in any material degree?"

35.Next it is helpful to have regard to the English Court of Appeal decision of Wilson v Chatterton [1946] 1 KB 36. The headnote summarises the decision concisely:

"Unless the weakness or illness of the workman is the sole cause of his injury or death by accident in the course of his employment, the employer is liable to pay compensation, and this applies to an epileptic as well as to a workman suffering from any other disability. In that case, an epileptic who was working in a field had a fit and fell into a furrow full of water and was drowned. It was held that the employer was liable to pay compensation."

36.Scott LJ, delivering the judgment of the court, developed the point in this way:

"It is only if the accidental injury has no causal connection with the employment at all that it can be said not to arise out of it, though it may occur in the course of it. It is for that reason that the employer cannot escape liability by showing that some factors such as disease is a predisposing or even contributing cause to the injury. He must show that it is the sole cause, as has been said frequently in decided cases. Statutory language contains no words which qualify its absolute generality. Any person, man, woman or child, who is a worker, if employed, is entitled to compensation for injury accidentally caused which arises out of and in the course of the employment. There is no prerequisite of a medical examination to quality for admission to the benefit of the Act. There is no hint of an exclusion from those benefits of any person because at the moment of injury he is suffering from disease or any physical or mental disability which may render him more prone to accidental injury arising out of his employment. There are many cases cited on pages 8 to 14 of Willis 37 edition which would have been decided adversely to the workman had such been the meaning of the statutory language. Indeed, an unqualified phrase "injury by accident" is inconsistent with such a reading of the statutory obligation of the employer. As was pointed out by Lord Loreburn in Warner v Couchman, the words are "injury by accident", not "by an accident". It suffices if the injurious event is in any reasonable sense accidental, and that event must be judged from the workman's point of view. Clover Clayton & Company Limited v Hughes and Trim Joint District School Board of Management v Kelly. Both those decisions are, in our view, directly relevant to the present case. Indeed, when considered in the light of Fenton v J. Thorley & Company Limited and Fife Coal Company Limited v Young(?), they are in truth conclusive in favour of the workman. Flanagan v Akers Wakely & Company, McFarlane v Hutton Brothers Stevedores Limited and Moore v Tredeger Island Coal Company are all decisions in which the Court of Appeal followed the principle as we see it laid down by the House of Lords and the decisions we have mentioned, and all three were cases in which the workmen suffered from weakness or disease of the heart, and death occurred without being subjected to any abnormal strain. The principle which emerges is that unless the weakness or illness of the workman is the sole cause of the accidental injury to or death of the workman, the employer is liable. We can see no difference in principle between a bodily condition involving recurrent fits of epilepsy on the one hand and, on the other, the various contributing causes unconnected with the employment which were features of the decisions that we have cited."

37.These principles have been applied consistently in Hong Kong in a number of decisions to which I was helpfully referred by both counsel.

38.CONCLUSION.

I must now apply these principles to the evidence as I find it. The first matter to decide is what were the chronic effects of the deceased's work on his health? I should observe that he had been doing this work for over 10 years. He was an experienced carpenter. His body had acclimatised itself to the demands of his occupation: lifting, carrying planks, sawing, nailing and so forth. Occasionally, the demands of overtime may have been excessive, but that was only occasionally. With respect to him, in my judgment, Dr Narriman has allowed himself to be over-influenced by the extremely heavy overtime schedule during the first 19 days of October. The previous overtime schedule from March to September was nothing like that. The overtime at ATV was also not overwhelming in any sense. It was there at times more than on other occasions. But the applicant took it in his stride.

39.Dr Narriman has said that it was the cumulative effect of stress at work culminating in the bad period in October, being "the straw that broke the camel's back", to use his expression. Nevertheless, after that period he did have days off, and no overtime thereafter. He was tired when he got up on 31 October, but rested all day before reporting to work at midnight.

40.My judgment of this is that the applicant was well up to the demands of his employment. In saying that, I have not forgotten Dr Lam's evidence that he had to give him time off on occasions; that he had had ulcers and other stomach problems in the past. But the overwhelming medical feature in this case is the high level of cholesterol that went unmonitored, once discovered, and probably untreated, and the fact that the deceased was a regular smoker. This caused the very severe occlusions of his cardiac arteries. The plaque ruptured, in my view, spontaneously, as it was apt to do at any time, causing the fatal heart attack.

41.I prefer Mr K.K. Ho's analysis of why the deceased met his death. I regret to say that his employment had no part to play in this event. I have posed myself the questions set by Lord Loreburn supra: "Did he die from the disease alone or from the disease and employment taken together broadly?"

42.I am of the firm view that his death came from the disease alone. This is a case of the type Scott LJ had in mind in Wilson v Chatterton when he said: "It is only if the accidental injury has no causal connection with the employment at all that it can be said not to arise out of it, although it may occur in the course of it."

43.Accordingly, the application must stand dismissed and there must be judgment for the respondents.

44.In the event of an appeal, I should say quantum has been agreed subject to the calculation of interest. Had I been put to it, I would have applied half the current judgment rate, as is usual, rather than applying the various rates in force over the relevant period. I mention that for the sake of completeness.

Representation:

Present: Mr Colin Shipp, instructed by Messrs Fung & Liu, for the Applicant

Mr Ashok Sakhrani for the Respondent

Present: Mr H Liu, of Messrs Messrs Fong & Liu, for the Applicant

Miss C. Kwan, of Messrs Ip Kwan & Co., for the Respondent