Wong Kwai Ngor v. Taiship Co Ltd

DCEC000039/1982

Employees' Compensation - Claim for compensation for temporary incapacity under section 10 and for death under section 6 of Employees' Compensation Ordinance, Cap. 282 - while removing air-values ship's engineer remarked of having bumped part of his body against something but continued to work and later collapsed - Medical examination revealed that the injured person had no external injuries but suffered an intracranial haemorrhage - Whether that bumping cased or accelerated the stroke - Whether death a year later from brain clotting and rupture arteries was tile result of that stroke.

Held : The collapse and subsequent death of the workman were due to his own inherent ailments and did not arise out of or in the course of employment - Principle of "Farmer v. Stafford Allen" (1911) 4 B. W.C.C. 223 and "Ormond v, Homes Co. Ltd." (1937)  30 B. W. C. C. 254 applied.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

EMPLOYEES' COMPENSATION CASE NO. 39 OF 1982

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Coram : H. Wong, District Judge, in Court

Date : 20th June 1983

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JUDGMENT

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1. This is the application of the widow of HUI Fook-hoi for compensation (a) under Section 10 of Employees' Compensation Ordinance, Cap. 282, in respect of her husband's temporary incapacity between 10/3/81 and 25/4/82 and (b) under Section 6 of the Ordinance, in regard to his death at the last mentioned date.

2. HUI Fook-hoi, aged 57 (referred to as Hui), was employed as a 4th engineer on board motor vessel "Holy" which belonged to the Respondent. According to HON Ming-chen (A. W. 1), 2nd engineer and Hui' s superior, their boat was at anchor in a Japanese port on 10th March 1981 when he gave instruction to Hui at about 8.00 a.m. to dismantle 16 scavenging air-valves in the engine room and replace them with new ones. For that purpose he assigned a Filipino crew member to assist Hui and furthermore ordered a greaser to bring along new valves and take away those to be released. A. W. 1 himself had previously performed that task, which was a routine when the ship was not in motion. He explained that to carry it out, he would bend down a little and use a special spanner to first grip the cylindrical valve. And as each valve weighed about 10 kilos, he would apply some physical force to turn it around and detach it from its base.

3. After having given the aforesaid instructions A. W. 1. went to his workshop for five minutes and returned to Hui's working place. He did not pay attention to what Hui was doing but simply heard from Hui that he, Hui, had bumped his head and that was all. Under Cross-examination A. W. 1 replied he could not remember whether he had said, in a statement of November 1981 to the Respondent's insurer, that Hui mentioned to him, concerning that incident, of having his arm struck against something. However, A. W. 1 agreed that in an affidavit of 1st February 1982 to the Director of Legal Aid he had related what happened in paragraph 4 thereof as follows:

"        The fourth engineer Mr. Hui Fook Hoi told me that he had bumped into something; however he did not elaborate as to whether he had been hurt at all and declined the opportunity to seek medical treatment which I offered to him. "

4. A. W. 1 described the workshop as being at a few seconds' walk from, but at four steps higher than, the spot where the air-valves were installed, though both locations were within the same engine room. He went on saying that, after a lapse of 25 minutes from the time he allotted the duty in question to Hui and whilst he was in his workshop, he saw Hui come along perspiring at the forehead and, without uttering a word, suddenly drop onto the floor. An ambulance was immediately summoned and transported Hui to a Japanese hospital.

5. A report from Kondo Clinic revealed that on admission to the hospital in Ofunato City on 10th March 1981 morning Hui was found to have suffered a stroke (intracranial haemorrhage), but had no external injuries (trauma). Four days later he underwent a brain operation (craniotomy) when the collection of blood (haematoma) in his brain vessel Was removed. Two weeks after the operation he regained partial consciousness for some time and was subsequently repatriated. Once back in Hong Kong on 17th April 1981 he entered Canossa Hospital where a diagnosis disclosed that he was partly paralysed (hemiplegia), unable to speak (aphasia) and had high blood pressure, heart disease and chest infection. After a stay of 6 months he was discharged from Canossa Hospital and rested at home. Somehow he fell out of bed in December 1981, as a result of which he ,. was admitted to Queen Elizabeth Hospital and was found to have hardened vessels (generalised atherosclerosis), diseased liver and kidneys. Eventually he died on 25th April 1982, a little over a year after the stroke sustained on the ship, from spontaneous brain clotting (intracerebral haematoma) and rupture arteries.

6. The only evidence on facts came from A. W. 1 whom I found not to be impressive in. the witness stand. His testimony was confusing, particularly in regard to the remark that Was made by Hui to him concerning a bump, as stated earlier. . Here I feel that it is reasonable to infer that Hui had a light bump at a part of ..is body, the reason being that first, Hui casually mentioned to A. W. 1 that he had a bump and no more, secondly, he refused medical attention offered by A. W. 1 and, thirdly, he had no external injury on being medically examined later hat day. The situation would have been clearer had the deceased's Filipino assistant been called to testify.

7. In "Clover Clayton & Co. Ltd. v. Hughes" (1910) A.C. 242, Lord Loreburn, L.C., in delivering judgment, cited the commencement of workman's Compensation Act 1906, which is similar to S.5 of Employees' Compensation Ordinance, and said at p.244:

"        The injury must be caused by an accident, and the accident must arise out of the employment ... What then is an "accident"?  It has been defined in this House as "an unlocked for mishap or an untoward event, which is not expected or designed" ... Next the accident must be one "arising out of"  the employment and there must be some relation of cause. and effect between the employment and the accident, as well as between the accident and the injury."

8. In "Fenton v. Thorlay" (1003) A. C 443' Lord Macnaghten gave some examples of such accident, saying at p,446 :-

"        If a man, in lifting a weight or trying to move something not easily moved, were. to strain a muscle, or rick his back, or rupture himself, the mishap in ordinary parlance would be described as an accident ..."

9. In the present case the crucial test is whether Hui' s death was triggered by or partly attributed to that bump. There was no dispute regarding the medical reports of Kondo Clinic and Canossa Hospital on Hui' s condition and of Queen Elizabeth Hospital on Hui' s cause of death. The issue thus appears to devolve on the opinion of Dr. Fong (A. W. 2) and Dr. Wedderburn (A. W. 3) for the Applicant and of Dr. Shroff (R. W. 1) on . behalf of the Respondent.

10. Dr. Fong, a medical officer with 3 years' standing said that a person of any occupation could have a stroke, though a workman afflicted by heart disease, hardened blood vessels and hypertension would run a higher risk of having it or suffering an accelerated one, if that workman used some physical effort in the course f his labour. Dr. Wedderburn, an experienced general surgeon and orthopaedic expressed the view that, from medical reports submitted to him, it was unlikely that the alleged bump was serious because Hui could work for 25 minutes thereafter. He was thus of the opinion that although physical effort might trigger a stroke on a man with heart disease and high blood pressure, it was unlikely that that bump was responsible for Hui' s collapse. Lastly, he remarked that a person of Hui' s condition was subject to a stroke regardless of stress.

11. Dr. Shroff, a veteran neuro-surgeon and neurologist formed the opinion that. Hui suffered spontaneous haemorrhage which could not be due to any injury but to a rupture of degenerated artery and raised blood pressure. He disagreed with Dr. Wedderburn's view that the use of moderate force at work or a blow at any part of Hui' s body could trigger a stroke, but qualified that only a severe head injury could so cause. Dr. Shroff maintained that Hui s physical exertion could temporarily raise blood pressure but could not accelerate, a fortiori generate a stroke. He further was positive that the use of some force by Hui had no relation to his haemorrhage and remarked that if that be the case every labourer or sportsman would be affected.

12. The consensus ad idem of these three doctors was that once a man suffered a haemorrhage, an immediate rather than a delayed collapse would follow.

13. From the above expert evidence I am prepared to accept Dr. Shroff's in preference to that of the others, if. there is a variance among their views. I am thus drawn to the strong inference that Hui suffered from numerous ailments, particularly advanced hardened brittle blood vessels and high blood pressure which deteriorated culminated in the occurrence of a stroke on 10th March 1981, and that a minor bump. at some part of his anatomony could not and did not cause. or accelerate that stroke. I am reinforced on this finding by the fact that agreed medical opinion points to the view that if it could, Hui would have been unable to continue to work for some 20 minutes add then walk up the steps of the engine room . to the workshop.

14. In his judgment in "Fife Coal Co. v. William Young" (1940) A.C. 479 at p.486, Viscount Caldecote, L.C. said,

"In "Ormond v. Homes & Co. Ltd." (1937) 30 B. W. C. C. 254 the workman was bound to fail, having regard to the finding that the work on which he was actually engaged when he collapsed from a stroke following high blood pressure" neither caused nor contributed to nor accelerated the second stroke."

15. "Johnson v. Owners of the ship "Torrington" III B. W. C. C. 68 is authority for saying that the question whether or not there was a connection between the work and the injury was one of fact.

16. The following passage at p.247 from the judgment of Lord Loreburn in Clover's case provides a guiding light to the present issue :

"It may be said, and was said, that if the Act admits of a claim in the present case, every one whose disease kills him while 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 while he was working. In each case the arbitrator ought to consider whether in substance, as far as he can judge on 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 from the disease and employment taken together, looking at it broadly?"

17. Applying the above principle I find that Hui suffered an haemorrhage on 10th March 1981 as a result of natural diseases alone and not through or together with an injury by accident, viz.,  a bump. Consequently, I believe that although Hui' s collapse occurred during his working time, it might, in my view, come upon him under any circumstances because of his diseased arteries and hypertension. And case in point is "Farmer v. Stafford, Allen" (1911) 4 B. W. C. C. 223, in which a man at work shouted out that he had hurt his back; no one saw any accident; he complained of pains in the back and stomach; he died of intestinal obstruction later; he had previously had illnesses and pains in the stomach. The claim for compensation in respect of his death was held to be unsuccessful.

18. In the light of the foregoing I find that Hui' s stroke on 10th March 1981 and eventual death on 25th April, 1982 did not arise out of or in the course of his employment. The claim therefore fails and judgment will be for the Respondent.

Representation:

Mrs. L. Lauder, of Legal Aid Department, for the Applicant

Mr. Mackenzie-Ross, instructed by Messrs. Richards Butler, for the Respondent