Tang Chui Ming v. The Kowloon Motor Bus Co (1933) Ltd

DCEC000012/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 12 OF 1970

Coram: District Judge D. Cons in Court

Date of Judgment: 16 June 1970

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JUDGMENT

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1. This is a claim for Workmen's compensation arising from the death of a driver employed by the defendant motor bus company. On the 17th of October last year he was engaged in the evening shift, driving a route No.1 bus which makes round trips from the Kowloon City bus terminus. His return route lay along Prince Edward Road, and in that road, at a distance of apparently about half a mile from the terminus, there is a bus stop near to a place known as the Nobel College. By about 11.30 that evening the deceased had almost completed six and half round trips. He had one more to make before finishing duty. Until that time nothing unusual had occurred during that shift, but from the Nobel College stop onwards the conductor of his bus noticed that the bus was proceeding only very slowly, although there was nothing in the traffic conditions to warrant such a reduction of speed. He spoke to the deceased but cannot remember if he received any answer. The bus had one further stop to make before reaching Kowloon City, which it did to allow some passengers to alight and finally reached the terminus at 11.40 p.m. At that stage the deceased complained to the conductor that since the Nobel College stop he had been feeling unwell and unable to see properly. He also reported to the Station Master that he was unfit to carry on with his duties. Both his wife, who was summoned by telephone and the Station Master say he mentioned feeling dizzy at the time, but there is no evidence whether or not the dizziness also related back to the Nobel College stop. A taxi was called to take him to the Queen Elizabeth Hospital, by which time he was unable to walk. He had already become unconscious when examined by Dr. Wong just after midnight, and he died soon afterwards.

2. It is accepted that the cause of death was cerebral haemorrhage. The medical evidence was that this is commonly, although not exclusively, caused by high blood pressure, particularly in persons over 50 years of age; the haemorrhage is usually, if this be the cause, preceded by a feeling of dizziness which indicates that the patent has reached the danger area, after which strenuous physical work, by raising the blood pressure even higher, would precipitate its onslaught. Although the decased was, I believe, some fifty-three years of age, there is no evidence that prior to this incident he had suffered from high blood pressure, or was anything other than perfectly fit and healthy. With this in mind the applicant has limited her case to that period of employment starting from the Nobel College stop, from when it is clear, so she says, that he was so suffering. Mr. Gregory, for the respondent, argued very persuasively that this was not a necessary conclusion from the evidence. With that I agree. But where a man shortly afterwards complains of symptoms consistent with high blood pressure, where only a little later that pressure is found to be fairly high and where death ensues from a matter commonly caused by high blood pressure, I think it reasonable to infer that his first feeling of sickness was attributable to that cause.

3. The reported cases dealing with the deaths of workmen suffering from some predisposing physical condition are legion. The more important of them have been neatly and conveniently paraphrased by my brother Pickering in the case of Ho Woon-King v. The Hong Kong & Kowloon Wharf & Godown Co. Ltd.⁽¹⁾ In company with him I find it impossible to discern any clear guiding principle from their conflicting decisions, and likewise resort to a criterion suggested as early as 1910, and also adopted by my brother Yang only last year: Yee Po v. The Hong Kong & Kowloon Wharf & Godown Co. Ltd.⁽²⁾ That test was suggested by Lord Loreburn L.C. in Clover & Clayton Co. Ltd. v. Hughes⁽³⁾ where he said:

"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 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 overnice conjectures, was it the disease that did it, or did the work he was doing help in any material degree?"

4. In Yee Po's case the contribution made by the work was continuous strain over a long period together with an additional workload on the day of death. It is not specifically set out in the judgment in Ho Woon-king's case, but there, I think, it must have been the extra heavy work performed only half an hour before the workman collapsed. In the present case the applicant relies upon the driving of the bus that last half mile to the terminus. It is clear that the actual haemorrhage cannot have occurred until after the deceased had arrived there, and indeed not before, at the earliest, the arrival of his wife, for he was still conscious at this time. It is conceded that if these exertions caused the haemorrhage, then the respondent is liable. But unfortunately there is no evidence other than that of Dr. Yung himself, which appeared on further examination to be without any substantial foundation, to show that the driving of a bus is in fact work of a strenuous nature. It might in the past have been possible to assume such a conclusion without the need of direct evidence, but not in the present age of automatic transmission and power assisted steering and braking. It must also be remembered that strenuous physical exercise is not the only factor which can increase blood pressure. Worry is another factor, and one that Dr. Yung placed on an equal plane. Now it would seem that the condition of the deceased deteriorated substantially after his arrival at the terminus. At that time two witnesses said that apart from his complaints there was nothing unusual about his appearance. It is by no means impossible that while he sat waiting for his wife, the consequence of a disabling sickness in his position would have appeared only too clearly before his mind.

5. For these reasons I have come to the conclusion that even though I look at the position as broadly as I can, it has not been shown to me that the continued driving of the bus after the Nobel College stop contributed in any degree, material or otherwise, to the death of the deceased. This application must therefore fail.

6. I should add, however, in case I am in error in this conclusion, that I would have found that the widow and the three youngest children were dependent upon him, although only partially in view of the contribution to the household expenses made by the two eldest daughters. Nevertheless, I would have thought that the smallness of that contribution would have warranted an award of the maximum amount.

16 JUN 1970

Representation:

Li (Hastings & Co.) for applicant.

Gregory (J.S. & M.) for respondent.

(1) 1965, District Court Law Reports, 265.

(2) 1969, " " " ", 1.

(3) 1910, Appeal Cases 242 at 247.