Wong Chick v. Swire Pacific Ltd.

DCEC000165/1990

Headnote

Industrial law -  Employee worked for 36 years as a boiler maker - Subject to high level noise disturbance at the work place - Suffered boiler - maker deafness - Commenced Employee's Compensation proceedings 19 years after leaving employment - Ignorance of entitlement to compensation - Application to strike out.

Held

1. Boiler-maker deafness is not an industrial disease scheduled under the Workmen's Compensation Ordinance (1969 Edition) which is the applicable Ordinance.

2. Boiler-maker deafness is not an injury caused by an accident but rather by process of work.

3. Even if the injury is caused by an accident, the employee's ignorance of his entitlement for compensation is not a reasonable excuse for not serving the notice of accident and commencing the proceedings within the 12 months period.

THE DISTRICT COURT OF HONG KONG
EMPLOYEES' COMPENSATION CASE NO. 165 OF 1990

IN THE MATTER OF AN APPLICATION BETWEEN -

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Coram: H. H. Judge Cheung in Court

Date of hearing: 27 and 28 January 1992

Date of handing down judgment: 17 February 1992

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JUDGMENT

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1. This case highlights once again the problems, encountered by a worker in seeking compensation for an industrial injury.

Facts

2. The Applicant is 77 years of age. He started work at the Taikoo Dockyard in the employ of the Respondent at the age of 19. Between 1935 and 1971 he worked there firstly as of 19. Between 1935 and 1971 he worked there firstly as an apprentice and maintenance of boilers in workshop and on board the engine rooms of ships berthed at the dockyard. During these 36 years he was subject to the constant loud noises of riveting, pneumatic drilling and hammering at his place of work. He worked for a minimum of 8 hours a day and 26 days a month . According to the Agreed Facts reached between the parties, the noisy environment was the same daily event and normal routine associated with the Applicant's work from 1935 to 1971. The level of noise was capable of causing hearing loss ("boiler marker's ears")

3. In 1971, he retired from the-job. In the same year, he took up an employment as a watchman and worked until 1983. Since then he has been unemployed.

4. In 1988, he discovered he had pneumoconiosis and was referred to the Director of Legal Aid to seek compensation: He did eventually receive $70,000 as compensation for his pneumoconiosis.

5. He was a little uncertain as to when he discovered his deafness. In evidence in chief, he said in February 1990 while he was consulting his legal aid lawyer on the pneumoconiosis, it was discovered by his lawyer that he might have been suffering from boiler maker deafness and he was advised to lodge a claim for compensation. He maintained under cross examination that he did not know he was getting deaf while he was employed by the Respondent and he only discovered he was deaf in 1990. However he also said in 1971 he could not hear clearly and that 3 years prior to 1990 he and his family discovered his loss of hearing. In his affirmation made on 21st March 1991 he said it was towards the end of his employment with the Respondent in 1971 that he became aware that he was losing his hearing.This loss of hearing was not a sudden event, but had occurred gradually right up to 1971. However, under cross examination, he said he did not know if he had made the affirmation.

6. On 9th May 1990, the present application was lodged in which the Applicant seeks, inter alia leave to bring the application out of time.

7. According to Dr. Au Siu Foon who was called on behalf of the Respondent, the Applicant has bilateral sensorineural hearing loss of 60 -110 db. The hearing loss was genuine as the acoustic reflex was absent. He said if one is subject to a noise level of over 90 db over a 40 work hour week one would suffer a permanent partial hearing loss in 13 years. The noise level of a boiler maker workship is over 90 db and he was of the view that the Applicant's hearing loss occurred during the time when he was employed at the Taikoo Dockyard. The loss of hearing was gradual. Dr. Au said that the Applicant informed him that he noticed his hearing was impaired during the time of his retirement. Dr. Au assessed the average hearing loss of the Applicant's ears as 75db. His hearing loss at 1971 was assessed at 65 db and another 10 db hearing loss was attributed to old age hearing loss which would set in at age 50 or over. Dr. Au said it would be difficult to notice hearing loss in a noisy surrounding. He was of the view that if the Applicant had 65 db loss of hearing in 1971 he should be able to notice the hearing loss at a normal environment.

8. Dr. A.J.S. Burge, who was called as a witness for the Applicant, was also of the opinion that the Applicant has bilateral noise - induced hearing loss which he described as "the so called boiler makers' ear typically found and classically described in shipyard workers." The underlying pathology was the loss of the hair cells of the cochlea (hearing organ). The hair cells are the "tranducers" which actually detect sound vibrations within the cochlea 'and induce impulses within the acoustic nerve fibres which the brain interprets as sound. There are loss of hairs and loss of the cells in both noise induced hearing loss and old age hearing less. Being related to neurons (brain cells) the hair cells are irreplaceable. Dr. Burge referred to and adopted passages in Scott-Brown's Diseases of the Ear, Nose & Throat (3rd Edition) ("Scott-Brown") which Dr. Au also accepted as authority in this field At page 481 the editors of Scott-Brown stated that,

"In permanent noise - induced hearing loss, the long term culmulative effects of repeated and prolonged hazardous noise exposures result in permanent pathological changes in the cochlea and irreversible threshold shifts in hearing acuity."

9. Figure 230 at page 484 shows that the noise level of a boioler maker's shop is over 90db which is wellover the whole frequency range of normal human hearing.

10. Dr. Burge said that the Applicant told him that he first noticed his deafness 25 years prior to 1990 i.e. 1965. Dr. Burge agreed that there is no significant difference between his finding and Dr. Au's finding. He said noise induced loss occurred in the first 10-15 years and in the present case, a majority of the Applicant's hearing loss occurred prior to 1950.

11. Mr Bowles, a representative of the Respondent stated that the dockyard activities and relevant records from the Respondent had been taken over by the Hong Kong United Dockyards ("HUD") which took over the activities of the Respondent on 31st November 1972. Due to reorganization and relocation of HUD, all the relevant records relating to workers and of the Respondent's business had been destroyed or lost. Mr. Bowler said in his affirmation that it was the Respondent's practice to engage subcontractors to carry boiler making work and that the boiler makers were not direct employees of the Respondent. He, however, in the light of the tenancy agreement produced by the Applicant, did not maintain that the Applicant was not a direct employee of the Respondent. The tenancy agreement was entered between the Applicant and the Respondent. It referred to his employment with the Respondent. Of the 4 supervisors of the Applicant, 3 of them are no longer alive and the son of the 4th one could not remember the Applicant.

ISSUE

12. The Respondent has applied to strike out the Applicant's claim on the grounds that:

13. Firstly the deafness suffered by the Applicant is not an injury that occurred as a result of an accident.

14. Secondly, if the deafness was caused by an accident, the Applicant has not provided a reasonable excuse for failing to lodge his application within one year of the accident. The relevant time was 1971 when the accident was said to have occrred.

15. The parties agreed that I should dual with the striking out application first.

ACCIDENT

16. The parties agreed that the applicable legislation the Workmen's Compensation Ordinance (The "Ordinance") of 1969. The current Employee's Compensation Ordinance is not retrospective in nature: see Section 55. Under the Ordinance, the worker may only be able to recover compensation for injuries or incapacity under either one of the following 2 situation:

17. Firstly, under section 5 of the Ordinance, if the incapacity is caused by an accident arising out of and in the course of the employment.

18. Secondly, if the incapacity is the result of a scheduled industrial disease which is treated by section 32(1) of the Ordinance as an incapacity caused by an accident under section 5 of the Ordinance.

19. Section 36 expressly provides that nothing in this Part, ( i.e. the part dealing with industrial disease) shall prejudice the right of the worker to recover compensation in respect of a disease to which this Part does not apply, if the disease is a personal injury by accident with the meaning of section 5.

20. Mr. Ozorio, counsel for the Respondent, submitted that while the boiler maker or industrial or occupational deafness is an occupational disease, it is not one that had been specified in the Second Schedule of the Ordinance (for that matter occupation deafness is still not specified in the current Employee's Compensation Ordinance). In order to succeed the Applicant must prove that the deafness is caused by an accident. This is conceded by the Applicant.

21. Mr. Ozorio submitted that the Applicant's hearing loss was not caused by an accident. He said that one cannot point to any moment in time or incident or series of incidents consisting of accidental occurrence when the hearing loss occurred. It was a continuous process of over 35 years. There was no untoward happening which caused the sound waves which induced deafness. Deafness was caused by the routine day to day normal occurrences in the course of the Applicant's employment. In other words, the Applicant's incapacity was a disease not due to a series of accidents but to a process.of work.

22. The distinction between an injury by accident and injury as a result of a continuous process is well recognized by the authorities.

23. In Fenton v Thorley [1903] A. C. 443, Lord Macnaghten held that the word "accident" in the Workmen's Compensation Act 1897 was used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.

24. In Roberts v. Dorothea Slate Quarries Ltd. [1948] 2 All E. R. 201, ("Roberts") a quarry worker, as a result of inhaling particles of silica over a long period of time in the course of his employment was totally disabled by silicosis. Lord Porter, held that

"In truth, two types of cases have not always been sufficiently differentiated. In the one type, there is found a single accident followed by a resultant injury, as in Brintons, Ltd. v. Turvey [1905] A. C. 230, or a series of specific and ascertainable accidents followed by an injury which may be the consequence of any or all of them as in Burrell (Charles) & Sons, Ltd. v. Selvage (1921) 126 LT 49. In either case it is immaterial that the time at which the accident occurred cannot be located. In the other type there is a continuous process going on substantially from day to day though not necessarily from minute to minute or even from hour to hour, which gradually and over a period of years produces incapacity. In the first of these types, the resulting incapacity is held to be injury by accident. In the second it is not ... I do not know, however, that an explicit formula can be adopted with safety. There must, nevertheless, come a time when the indefinite number of so-called accidents and the length of time over which they occur take away the element of accident and substitute that of process. In my opinion, disability from silicosis is one of such instances. It cannot be said to be the result of injury by accident."

25. In Pyrah v Doncaster Corporation [1949] 1 All E. R. 883 ("Pyrah") a nurse suffered tuberculosis as a resutlt of her subjecting to constant attacks of tuberculosis germs during a period when she was brought into unusually close contact with tubercular patients The majority of the Court of Appeal held that the nurse's infection with tuberculosis was an injury by accident, Denning L.J. (as he then was) of the majority held that,

"Many disease cannot in their nature be due to accident, but some may be. These include the diseases produced or precipitated by trauma (that is, injury or shock), by exposure or exertion, by infection or contagion, or by contact with or invasion by foreign elements. If one of these diseases is due to an accident or series of accidents, it may form the subject of compensation under the Workmen's Compensation Acts, but if it is due to a process of work, and not to an accident or accidents, it will not form the subject of compensation unless it is one of the scheduled diseases. The Present question is: where is the line to be drawn between a disease which is due to an accident or accidents, and a disease which is due to a process of work. In my opinion, the solution to that question is to be found by remembering that an accident is something fortuitous, something which is unsought but happens by chance, something of which it can be predicated that even if it is very likely to happen, and happen repeatedly, nevertheless it is still a chance that it does happen. Applying this test, if a disease can be attributed to one external factor only, whether that factor be trauma, exposure. exertion, or infection, or such like, then it is undoubtedly due to an accident, even though the precise occasion on which it occurred cannot be ascertained see Brintons v. Turvey (supra) Innes v. Kynoch (1919) AC 765 and Fife Coal Co. v. Young [1940] 2 All E. R. S but if the disease is due to a number of external factors acting in combination, such as inhaling foreign particles over a long period, exposure to dust, or numerous cuts, then a distinction has to be drawn. On the one hand, the disease is due to a series of accidents if the external factor which produce it occur fortuitously as a matter of chance. That was the case in Charles Burrell v. Selvage (supra) where, although the cuts were numerous and repeated nevertheless each one occurred as a matter of chance. On the other hand, a disease is due, not to a series of accidents, but to a process of work if the external factors which produce it are a continuous and necessary concomitant over a long period of the work in which the man is engaged. That was the case in Roberts v. Donothea Slate Quarries Co., Ltd. (supra) where the inhaling of the silica dust was not fortuitous but a necessary incident of the work."

26. In Roberts v. Penrhyn (Lord) [1949] 1 All E.R. 89 ("Penrhyn") a worker was a rock driller whose work involved the use of a drilling machine which constantly came forcibly into contact with the left side of his hip. The worker developed osteo-arthritic condition which was directly attributed to the vibration caused by the use of the drill. The Court of Appeal held that the length of time over which the series of impacts occasioned by the vibration of the preumatic drill occurred was such as to take away the element of accident and substitute that of process, so that the injury sustained by the workman was not an "injury by accident" within the meaning of s. l (1) of the Act of 1925 and the workman was not, therefore, entitled to compensation.

27. In the Irish case of R (Curry) v. National Insurance Commissioner [1973] N. I. 103 ("Curry"), the worker's job involved being in close proximity to a saw which was used for cutting animal carcasses and which emitted high pitched screech. After several months he suffered a hearing loss. The Court of Appeal held that the injury was not caused by an accident. Lowry L.C.J., reviewed the authorities including Roberts, Pyrah and Penrhyn. He held at page 117 that,

"Turning to the facts of the present case, there was a series of incidents (if one may so describe all the occasions when the mechanical saw was cutting through the back bones of the carcasses) which caused a high-pitched screeching noise to be emitted and the cumulative effect of which was to damage the respondent's (i, e. the worker's) hearing, but in my opinion these incidents were not accidents in the ordinary and popular sense, or indeed in any accepted sense of the word and no matter how many or how few the incidents or over how short a time they occurred, they were never converted into accidents, Therefore, it seems to me, no one who was injured by the series of incidents, as the respondent admittedly was, could successfully maintain that he has been injured by a series of accidents (or by accident"). It further occurs to me that a series of incidents which are not accident cannot become a series of accidents merely because the victim's injury is caused over a matter of hours, weeks or months rather than over a period of years."

At page 122 he held that,

"It appears to me unrealistic to say that the respondent met with an accident every time the high-pitched noise assailed his ears. All he did was to experience the routine associated with his work and his argument, if sound, would turn every assault of dust or noise into an accident. If the saw had emitted unwarranted noised through lack of maintenance then I could see that injury "by accident" would be likely to occur."

28. Mr. Lam, Counsel for the Applicant, submitted that the physical damage to the hair cells of the hearing organ treated as a physical assault.and as such the loss of hearing of the Applicant is the result of an accident. He recognized the authorities of Roberts and Curry. He, however, asked me to take a robust approach by following these two decisions. Instead, he asked me to follow the decision of Fitzsimons v. Ford Motor Co. Ltd. [1946] 1 All E.R. 428 ("Fitzsimons")and Hughes v. Lancaster Steam Coal Collieries Ltd. [1947] 2 All E. R. 556 ("Hughes").

29. In Fitzsimons, the employee's work consisted in holding in his left hand a hand machine which was electrically operated and vibrated 2,800 revolutions a minute, whilst with his right hand he pressed it against the material to be cut, using the weight of his body to increase the pressure. After about a year he discovered that his hand was going dead. The Court of Appeal held that the employee sustained a  succession of accidental injuries which entitled him to an award. Scott L. J. held that,

"Each vibration caused by the rapidly rotating instrument was, as it were, an infinitestimal blow to the man's hand and arm, transmitted to the nerves, causing an infinitely small damage to their tissues, and in the end cutting off the flow of blood needed to keep the hand in a healthy condition. Some men may have better powers of resistance to such attacks than others, but the mere fact that the breakdown does not occur until the cumulative effect of the tiny blows from the vibrations produces a certain degree of alteration in the nerves does not affect the character of the cause."

30. Fitzsimons was applied in Hughes where a workman developed inguinal hernia as a result of using a pneumatic drill.

31. It is virtually impossible to reconcile Penrhyn with Fitzsimons. In Penrhyn Cohen L.J. stated that the House of Lords in Roberts was invited to affirm the correctness of Fitzsimons. However, despite this invitation, the House of Lords did not refer to Fitzsimons in their decisionsl. For this reason, Cohen L. J. was hesitant to say that Fizsimons had been impliedly overruled. Denning L.J. was of the view that the effect of Roberts was to render Fitzsimons and Hughes to be no longer of authority.

32. Lowry L.C.J. in Curry was also of the opinion that Fitzsimons was wrongly decided in that it failed to identify any incident or series of incidents which could properly be called an accident or series of accidents. He further held that the Penrhyn decision is in accordance with what he believed to be the principles on which one decides whether an accident or series of accidents has occurred.

33. I respectfully adopt the approach of Roberts, Pvrah, Penrhyn, and Curry. In my view, the loss of hearing of the Applicant was not caused by an accident or a series of accidents. it was common ground, as disclosed by the evidence of the Applicant and the medical doctors, that the Applicant's deafness, which was described as boiler maker deafness, was noise induced. I accept that it was the result of repeated and prolonged exposure to hazardous noise levels associated with his normal and routine work. The deafness was due to the process of work. The noise which induced the deafness was a continuous and necessary concomitant over the 36 years of work in which the Applicant was engaged as a boiler maker. While Fitzsimons has not been expressly overruled, the better view is that this case is no longer of authority.

34. As I have found that the hearing loss of the Applicant was not an injury by accident it would not be necessary for me to go on further. However, I shall give my decision on the other limb relied upon by the Respondent in the event that this matter is taken to appeal.

REASONABLE EXCUSE

35. Section 14(1) of the Ordinance requires the notice of the accident to be given and the application for compensation to be brought within 12 months from the occurrence of the accident causing the injury. Section 14 (4) enables the Court to hear the application if the Applicant is able to show that he has a reasonable excuse for not issuing the notice or bringing the application within time.

36. Although, the Applicant gave different periods of time when he first discovered his hearing loss, I find that, if the noise induced deafness could be described as an injury caused by an accident, the accident occurred between 1935 and 1971 and the Applicant noticed his hearing loss when he left the employ of the Respondent in 1971. This is in accordance with the medical opinion of Dr. Au that the Applicants suffered hearing loss of 65db in 1971 and he was able to notice his deafness in a normal environment. The Applicant worked in a normal environment after he left the employ of the Respondent. Dr. Burge's view that the majority of the Applicant's hearing loss occurred in the first 10-15 years of his employ further supports this finding. I further accept Dr. Au's and Dr. Burge's evidence that the Applicant had informed them that he noticed his hearing loss in 1971 or 1965.

37. The Applicant's explanation for not making an application before was that he did not know he was entitled to compensation. Ignorance of the fact that he was entitled to compensation for work injury or of the remedies available to him under the law is not a reasonable excuse for not lodging a claim within time. In Coles v. Pascall & Sons [1911] 1 . K.B. 982, a worker did not give notice of his accident within the specified time His reason for failure to give notice was that he did not know of the exisience of the Worker's Compensation Act or that he was entitled to compensation for injury by accident arising out of and in the course of his employment. The Court of Appeal found that the reason was not a mistake or a reasonable excuse.Cozens-Hardy MR held that

"Then is it a "easonable cause" for a man not giving a notice that he is not aware of the Act of parliament at all? In my opinion it is not. I think that those words are intended to meet an entirely different class of cases. If, for instance, the employer has been paying compensation for a time without formal notice of claim,, that may well be a very reasonable cause why the workman did not make the formal claim within the six months".

CONCLUSION

38. Under the existing state of the law the Applicant has no recourse against his employer for employee's compensation for what is obviously an injury that occurred as a result of his employment. The position is to be contrasted with that in the United Kingdom where A10601975 compensation is available for occupational deafness as a prescribed disease (see Lewis Compensation for Industrial injury pages 108-120 : Occupational Deafness) D r Au in, his evidence referred to the working paper issued by the Labour Department recommending that a.scheme be set up in Hong Kong to compensate workers suffering from occupational deafness. Regretably the scheme has still not been established. It is to be hoped that the scheme, which is to be based on the U.K. model, will be introduced in Hong Kong as soon as possible.

39. I shall accede to the Respondent's applicantion to strike out the proceedings. The order I shall make is as follows :

1. The Application lodged by the Applicant is struck out.

2. The Respondent is to have the costs of the application to strike out and of the Application with certificate for counsel.

3.    The Applicant's own costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Mr. William Lam, Legal Aid Counsel for the Applicant.

Mr. Michael Ozorio, Counsel. instructed by Johnson, Stokes and Master for the Respondent.