Mak Sin Man and Another v. Luen Tat Watch Band Manufacturer Ltd.

HCPI001422/1999

HCPI 1422/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1422 OF 1999

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Coram: Hon Seagroatt J in Court

Dates of Hearing: 27-28 February and 1 March 2001

Date of Judgment: 27 March 2001

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J U D G M E N T

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1. Mr Wong Kan Fai was a polishing technician employed by the Defendant at its watch band factory in Shenzhen. He supervised the polishing process. He had worked for the Defendant for about 17 years.

2. On the 21 December 1996 he went to the Queen Elizabeth Hospital in Hong Kong and was admitted as an in-patient until he was discharged on 24 December at about 1135 hours.

3. On admission he gave the following material history. Over the past 4 to 5 months he had experienced weakness and tremor of both lower limbs. He complained of unsteady gait and increasing severity of weakness of both legs. There was increased numbness though none was detected on clinical testing. He was also aware of slurring of speech and slowness of response.

4. A number of neurological tests was carried out. He appeared to have full strength in all four limbs. The CT scans and chest X-rays were obtained. Blood tests showed reduced platelets and white cell count. The principal diagnosis was cerebral and cerebellar atrophy. Further clinical neurological testing showed some reduction in leg strength. For the most part clinical examination showed general good condition. However one clear organic problem emerged. Hypersplenism had resulted in thrombocytopenia, and cirrhosis of the liver (alcohol related liver disease) was diagnosed although there was also a possible diagnosis of Wilson's disease. He had been a heavy drinker over two decades. I shall have to return to his medical picture and history a little later. When he was discharged he was due to attend follow up for further tests and assessment in the neurology clinic on 21 January 1997, a little over three weeks later. He did not of course live to fulfil that appointment.

5. Although he had spent three days in hospital he was back at work in Shenzhen on 26 December only two days later. The evidence of what occurred in the early afternoon of that day is in the form of statements from two co-employees, Mr Wong Yat Sin, the grinding departments' supervisor, and Mr Tsang Hin Yung, an accountant.

6. The latter saw Mr Wong Kan Fai and another worker, Law Yuk Ting, inspecting watch bands in the rinsing room. They appeared to be in a rush, moving hurriedly to and fro in the room. Suddenly he heard a loud sound, described as a 'ping' and on turning around saw Wong Kan Fai lying on the ground, face up. He was unconscious. He had heard no shout from him before. There was no apparent sign of injury to his head or any other part of his body.

7. A declaration by Mr Tsang Hui Yung (as Zeng Xian Yong) speaks of this witness washing his hands with his back to Mr Wong Kan Fai and suddenly hearing a "bang" and on turning around seeing him face-up on the ground.

8. Mr Wong Yat Sin's attention was alerted by another worker who shouted that "Master Wong fell on the floor". He rushed to the rinsing room. He too found no sign of injury.

9. There is also a declaration by this witness (as Huang Ri Xian) which has been translated into English. The material parts are: "Wong Kan Fai slipped out of carelessness, passed out and became unconscious outright."

"The garment around his back was wet, at that time the ground was very dirty and wet with finger sheaths for packing and the residual solution."

10. Neither of these witnesses knew of any health problem suffered by Wong Kan Fai. He had not told either of them he had so recently been in hospital for three days. There was no obstacle seen by them on which he could have struck his head so as to cause him to fall. The only other possibly material content of their evidence was that Wong Kan Fai was wearing what were described as sports shoes, and in relation to Mr Wong Yat Sin's declaration, the condition of the floor.

11. Mr Wong Kan Fai's widow also worked for the Defendant. She knew the factory conditions well. The cleaning areas were always wet, no doubt by reason of the process which used liquid chemicals and water. There was no system to keep the floors clean and dry, other than that carried out by the workers at the end of the shift. She described rubbish, and plastic gloves as being on the wet surface during the shifts. She was away from the factory on the day he suffered his fall so she was unaware of the actual state of the floor at the material time. Of the other witnesses only Mr Wong Yat Sin made any comment on the state of the floor at the material time. This by itself does not constitute breach of duty of care on the part of the employer.

12. If there were regularly rubbish and plastic gloves on the wet floor these could obviously cause a hazard for workers moving around, especially if they were moving quickly. The state of the floor on that particular day and at that material time is described on a limited basis. If there was a cleaning and tidying process at the end of each shift, that had taken place after 12 noon. The next shift started at 1 p.m. The accident occurred at about 2 p.m. only an hour into the five hour afternoon shift. No one saw Mr Wong Kan Fai fall. No one heard him say anything. He seemed to have been unconscious at the latest from the time his head hit the floor, assuming his head did indeed strike the floor. No one at the scene saw any injury but that is far from conclusive. No external head injury was recorded at the hospital on the Mainland to which he was immediately taken. On this paucity of evidence it is difficult if not impossible to make the causal leap and attribute his fall to the condition of the floor and to negligence on the part of his employers whatever general picture his widow and Mr Wong Yat Sin gives of the normal or actual state of the floor in the rinsing room. It is not possible to say that the cleaning system at the end of each shift was inadequate or inappropriate on this limited information.

The Medical Treatment and Records on the Mainland

13. Unhappily the medical reports from the Mainland are far from being the detailed, informative narratives that one is accustomed to seeing from hospitals in this Special Administrative Region. No hospital records have been supplied. The information is therefore extremely limited and this has proved to be a significant obstacle to Dr Huang Chen Ya and Dr Yu Yuk Ling the well-known consultant neurologists instructed on behalf of the Plaintiff and the Defendant respectively.

14. Mr Wong Kan Fai was taken firstly to a local hospital but transferred to the Shenzhen Longgang No. 2 People's Hospital, which apparently no longer exists. A CT scan carried out there revealed a cerebral haemorrhage. As a consequence of his condition worsening he was transferred to the cranial nerve surgery department the next day (This I assume is the specialist neurological centre.) A craniotomy was carried out and a haematoma (collection of blood) was evacuated. Five days later his condition worsened and a further CT scan showed the development of another haematoma, described as a "tardive intracerebral haematoma". ("tardive" should have been translated as delayed.) The operation and procedure were repeated. Applying some of the better known terminology, he was kept in intensive care. A tracheotomy had been performed after the first craniotomy to facilitate respiratory function but there was some complication with haemorrhage of the digestive tract. Artificial life support systems kept his respiratory and circulatory systems functioning. His condition continued to deteriorate and yet a further CT scan showed a ventricular haemorrhage. Ventriculopuncture (and ? aspiration) was performed but no improvement resulted.

15. It then appears that he was transferred back to the local Nantou Hospital, Zhongshan City. The indications seem to have been that nothing more could be done for him. There is some confusion as to the sequence of his movements thereafter but on the 11 January is a note of his return to Nantou. He seems to have been returned home at some stage because there is a note that a doctor from that hospital was called out to his home as he was in a critical state. It was to no avail. He died within about 15 minutes.

16. No post-mortem was carried out. He seems never to have regained consciousness following his collapse or fall. The last sentence of the report from the Nantou Town Hospital suggests that, apart from the bare information that he had "fallen over" on the 26 December, the medical authorities had no details of the "falling over" nor of any physical injury consequent upon that, which might have been associated with the cerebral haemorrhage revealed by the CT scan. The only other record of his physical condition identifies a right sided paralysis.

17. The CT scans and reports were taken by his family when he was transferred to another hospital. Regrettably they are no longer available, an important omission as they may have lent some insight into the original problem in relation to the intracranial haemorrhage. With that scant picture I now turn to the expert neurological evidence, but need to set the scene in respect of this man's life-style, consequential problems and specific organic state.

What physical problems did Mr Wong Kan Fai have?

18. He had been a heavy drinker for twenty years. One hospital entry refers to his saying that he drank three or four taels of wine with every meal. There are varying ideas as to what this in fact means in terms of quantity of alcohol and the strength of it. His widow testified to the effect that he was a moderate drinker on her observation but wives do not always have a clear idea of their husbands' consumption of alcohol. On the basis of what he disclosed to the medical personnel I have little difficulty in concluding that he was a heavy drinker, knew he was, and certainly sought to assure the doctors that he had stopped drinking some six months earlier when he had visited his doctor, been referred to the Queen Elizabeth Hospital as a consequence, but then had defaulted in follow-up.

19. The consequence of this is the diagnosis of liver disease, low blood and platelet count and his own subjective feeling of increasing weakness in his lower limbs. Undoubtedly he was showing some of the extreme signs of alcoholism, and cerebral and cerebellar atrophy - a permanent condition - was clearly diagnosed.

Dr Huang Chen Ya's Opinion

20. Dr Huang commented on the low platelet count recorded in January 1996 following a private laboratory test. This had fallen further to 50,000 by the time the Queen Elizabeth Hospital carried out its own test in December 1996. He describes his liver function as being not at all bad even a few days prior to his death.

21. The crucial question is did he suffer, or may he have suffered a cerebral haemorrhage causing him to fall and lapse into a coma, or lapse into a coma and fall? Put another way, what is the likelihood of his suffering a spontaneous haemorrhage causing him to fall?

22. Patients with a platelet count of from 50,000 to 100,000 may have mildly prolonged bleeding time so that bleeding occurs after severe trauma. The normal platelet count however is between 150,000 to 400,000, so by any yardstick the deceased's had been significantly low at 50,000.

23. A consideration of research and text books on liver disease did not disclose cerebral haemorrhage as a complication of low platelet count in patients with liver disease. There was no history of this patient which suggested that he had a significant coagulopathy. He was not on any medication which could have caused cerebral haemorrhage. The severe and sudden onset of a cerebral haemorrhage is more consistent with head injury, or in the presence of a cerebral aneurysm or anteriovenous malformation (AVM). The deceased did not have aneurysm or AVM nor was he subject to hypertensive cerebral haemorrhage - the Queen Elizabeth Hospital did not note hypertension.

24. Dr Huang did regard the delayed development of a cerebral haematoma five days after the first operation on the Mainland as significant. This he said was a well-reported complication of head injury related cerebral haemorrhage, leading him to the view that it was more likely that the cerebral hemorrhage resulted from a head injury sustained in a fall.

25. As he pointed out, a critical issue is the site of the haemorrhage. The term used in the Mainland hospital reports indicated a haemorrhage within the brain not outside it. Such haemorrhage due to head injury occurs to the extent of 80o/90o in the frontal or temporal lobes whereas haemorrhage of hypertensive origin tends to occur deeper in the brain. However the absence of any CT scans or reports or detailed clinical notes leaves this matter unresolved.

26. Dr Huang therefore is unable to fix the cause of Mr Wong Kan Fai's cerebral haemorrhage but on balance feels that it is more likely to have been the result of a head injury. The feature on which he relies is the sudden onset of the haemorrhage; the low platelet count could have contributed to a greater tendency for haemorrhage to persist after the accident but is unlikely to have caused spontaneous haemorrhage.

27. Some studies were concerned with the effect of recent heavy alcohol intake and supported the view that this increased the risk of cerebral haemorrhage - but that previous heavy drinking without recent heavy drinking within the last week did not increase the risk of intracerebral drinking. We have only the deceased's assertion that he had given up drinking six months earlier. The Queen Elizabeth Hospital clinician nonetheless thought it advisable to test for alcohol (no doubt from a blood or urine analysis.) It appears to have been negative but, again, one must bear in mind that that would have covered no more than the twenty-four hour period before the sample was taken. Dr Huang accordingly discounts Mr Wong's alcohol intake as having brought about his illness.

28. Finally as he, and as we shall see, Dr Yu, clearly indicated the "limitation placed upon [them] as a result of inadequate information, left [them] to make deductions as to the probable nature of Mr Wong's death."

Dr Yu Yuk Ling's opinion

29. Dr Yu's initial opinion was understandably a tentative one. The available information indicated bleeding was localised to the left side of the brain as evidenced by the right-sided hemiplegia. His view is that with a spontaneous cerebral haemorrhage the bleeding is usually single and localised to a particular site in the brain. By contrast traumatic cerebral haemorrhages commonly have multi-focal bleeding and may be accompanied by subdural and/or epidural haemorrhage and/or cerebral contusion. There is no real disagreement between Dr Huang and Dr Yu on this.

30. In concluding that the haemorrhage was more likely a spontaneous one, Dr Yu advances the following factors. The nature and mode of the fall, as best can be ascertained, was unlikely to result in an impact of such severity as to produce instant coma and an intercerebral haemorrhage. In this picture we have to discount the notion of a particularly thin and vulnerable skull because the nature of the deceased's skull is one of those unknown factors.

31. Dr Yu considers that alcoholic liver disease was more likely than Wilson's disease and that it was alcohol which had brought about the cerebellar atrophy. He also relied upon the reduced serum albumin as an abnormality in the early stages of cirrhosis, and the splenomegaly.

32. Massive spontaneous cerebral haemorrhage causing abrupt loss of consciousness can occur in a minority of patients without hypertension, head injury, cerebral aneurysm or AVM. The deceased's clotting factors had not yet been assessed at the Queen Elizabeth Hospital. Both consultants are handicapped additionally by the fact that the further tests planned for the 21 January 1997 could not be carried out. However the clotting factor was likely to be reduced when the serum albumin level was already low. Dr Yu could not exclude the possibility of a small AVM which, though usually detected on a brain CT scan, destroys itself at the time of rupture and is thus not identifiable at operation.

The professional evaluation

33. I have had the advantage of reading the reports of and hearing the evidence of two distinguished experienced consultant neurologists. They express divergent conclusions but both readily recognise the difficulties which they have encountered in reaching them. They epitomise the highly professional approach of their discipline in allowing for a reservation in their views. The picture presented by both of them is finely balanced. Each opts for a conclusion which is in his respective view, the likelihood. How am I to choose between these views, if I have to, as being the logically tenable views on a consideration of the known factors and an assessment to some extent of the unknown?

34. I have been able to consider a number of learned treatises and reports referred to by both consultants. All contained material which illustrated the complexity and diversity of this area of neurological medicine. One in particular published in Stroke Vol. 19 No. 7 July 1988 contained some statistics and conclusions which I should particularly bear in mind. It is entitled "Spontaneous Intracerebral Haemorrhage and liver disfunction" presented by doctors in the Division of Neurosurgery of the Institute of Brain Diseases of the Tohoku University School of Medicine Sendal, Japan.

35. The conclusion is expressed in the last sentence of the headnote. "These facts suggest that liver disorders produce a state in which haemorrhage occurs more readily and that this haemorrhage tendency may be one of the causal factors of spontaneous cerebral haemorrhage."

36. The paper reviewed the results of some earlier studies including that of Boudouresques et al in 1980 which found liver cirrhosis in 7% of the control group but in the 282 cases of spontaneous intracerebral haemorrhage it was found to be 15.69%. The Boudouresques conclusion was that liver cirrhosis was a major risk factor.

37. From this study a number of relevant findings emerge. There was a considerable number of spontaneous intracerebral haemorrhage patients with abnormalities of liver function and these were particularly frequent among the heavy alcohol users.

38. Intracerebral haemorrhage is more common amongst men than women. Taking into account the frequency of liver disorders due to alcohol consumption, the higher frequency of haemorrhage among the men might be partially explained. In the study most of the men patients who had a reaction in thrombocyte and/or fibrinogen levels had liver disfunction. It is suggested from the facts which emerged that liver disorders produce a state in which haemorrhage occurs more readily and this tendency is one of the causes for the higher frequency of spontaneous intracerebral haemorrhage in men than in women. This then becomes part of the scene in which the picture of Mr Wong Kan Fai, to the extent that it is known, fits which some ease.

39. There is no solid fact or feature which can be introduced into the equation resulting from the evidence of the two medical experts. It is unusual for a person who falls to the ground from a vertical position to suffer an injury resulting in immediate and irreversible coma, particularly if he has been wholly aware of his surroundings immediately prior to the fall. Although there is such little evidence of the circumstances of the fall, it is more consistent in my mind with a collapse with the deceased in an uncontrolled state. The fact that there was no head injury apparent to any of his co-workers is not conclusive of the absence of such. Equally the fact that there is no hospital record of head injury on admission, on or subsequent clinical examination (if such was carried out) is not conclusive. A head injury may have been over looked on both or all occasions in the crisis of the moment. It has to be remembered that this man was unconscious from the start and cranial surgery with life support systems was the priority.

40. But I have no evidence on which to conclude, on the balance of probabilities that his fall was due to negligence on the part of his employers whatever suspicion one may harbour in that direction. Here was a man whose health was seriously impaired at the comparatively young age of 46. I have to accept that chronic alcoholism had produced some fundamental changes which were irreversible. In his own experience he was unsteady on his feet. Some organic problems had been revealed but there had not been a full assessment yet. Although one cannot know what may ultimately have been revealed by the further tests arranged for the 21 January 1997 at the Queen Elizabeth Hospital, he may well have been a man whose days were numbered although I accept that, on the limited evidence available, both Dr Huang and Dr Yu do not think that his condition, to the extent that it was then known and assuming a change of lifestyle was maintained, would have limited his expectation of life to an appreciable extent. I am unable to conclude that he suffered a haemorrhage as a consequence of trauma to the head.

41. It is not often that the picture on material aspects is so uncertain. It is certainly unsatisfactory, and an unhappy fact for the Plaintiff that important issues cannot be determined with the necessary degree of confidence, as a probability. Despite Miss Pinto's customary attractive and persuasive arguments I find I am unable to conclude that Mr Wong's fall was due to negligence or breach of duty on the part of his employers. Although it may not be necessary for me to say so, I am inclined to the view that he collapsed, rather than fell because the surface was hazardous. I cannot be sure, of course, what caused such a collapse but it is most likely to have been the state of his health.

42. In these circumstances there must be judgment for the Defendant. This is a case where, in all the circumstances, the Defendant, to whom he had given loyal service for so long, would, I hope, not ask for costs. They may wish to take account of the fact that after three days as an inpatient undergoing substantial tests he was back at work with his usual bustle, energy, skill and responsibility within 48 hours.

Note: Since writing the above I have been informed that an order for costs, to which the Defendant is entitled, will be in effect an order against the Legal Aid Department. I make the order for costs in the hope nonetheless that it will not be enforced against the Plaintiffs.

Representation:

Miss Josephine Pinto, instructed by the Director of Legal Aid, for the Plaintiff

Miss Christina Lee, instructed by Messrs Deacons, for the Defendant