Lo Ngau v. Dodwell Shipping Ltd., Agent for Ogden Marine Inc Usa

Case No.DCEC 163/1977

Court

District Court

Date04 Jan 1979

Judge—

Case Document

100%Judiciary

DCEC000163/1977

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

Workmen's Compensation Case no. 163 of 1977

-----------------

IN THE MATTER OF AN APPLICATION BETWEEN

LO Ngau

Applicant

AND

Dodwell Shipping Ltd. , agent for Ogden Marine Inc. U.S.A.

Respondent

-----------------

Coram: Judge Hooper in Court

Date of Judgment: 4 January 1979

-----------------

JUDGMENT

-----------------

1. This is an action for Workmen's Compensation under Section s9 & 10 of the Workmen's Compensation Ordinance Cap. 282. The Applicant was employed as a seaman on board the M.V. Ogden Saguenay by Messrs. Dodwell Shipping Ltd. as agent for the owner of the vessel Messrs. Ogden Marine Inc. 280, Park Avenue, New York. The vessel was registered in Liberia and the accident occurred on the 13th December 1976 when the vessel was at Jacksonville, Florida, U.S.A. The applicant sustained a fracture of his left femur when struck by a large rope.

2. Mr. Young for the respondent has taken a preliminary point to the effect that this Court does not have jurisdiction to hear this action because the applicant was employed on a foreign ship and the accident took place outside Hong Kong. He concedes that the respondent company submitted to the jurisdiction when it filed it's defence on this matter, but he maintains that the respondent is prepared to amend its "grounds of opposition" by adding a new first clause in the following terms--

"At the time the applicant herein was injured he was not a member of a crew of a Hong Kong ship as defined by Section 29(4) of the Workmen's Compensation Ordinance, and accordingly the Court has no jurisdiction to try the case".

3. He maintains that the respondent is not now submitting to the jurisdiction of the Court and that although a plea to the jurisdiction ought to be raised at an early stage, the fact that it wasn't, does not affect its validity and the respondent is prepared to pay the costs incurred so far. He cites a passage in the 1976 Annual Practice at page 274 dealing with pleadings -

"Jurisdiction, want of. - This defence should be specially pleaded. But the Court may allow an objection to the jurisdiction to be raised at the trial, though not previously raised by the pleadings, and will treat the pleadings as amended accordingly (Crosfield v. Manchester Ship Canal Co. [1904] 2 Ch. 123, 142 C.A."

4. Mr. Young argues that it is therefore open to him to take a jurisdiction point at this stage, although this Court has a discretion whether to permit him to do so. He has referred me to Section 30 of the Workmen's Compensation Ordinance which is in the following terms -

Section 30(1)

If the employer submits or has agreed to submit to the jurisdiction of the Court, then, not withstanding that the accident causing the personal injury occurred outside Hong Kong, this Ordinance shall apply, subject to the modifications in subsections (2) (3) & (4) to seamen and apprentices to the sea services who are workmen within the meaning of this Ordinance and, having been recruited or engaged in Hong Kong, are members of the crew of a foreign ship."

5. He maintains that the respondent does not now submit so that it doesn't fall into the first catagory and although up until now it may have agreed to submit that agreement is now as it were withdrawn.

6. Mr. Farago, who appears for the applicant, contends on the other hand that the respondent cannot now withdraw its submission to the jurisdiction and that its correct course would have been to file a conditional appearance. The "grounds of opposition" originally filed in this matter admit liability and effectively dispute the question of sick leave.

7. Both parties were prepared to go on with the case subject to the jurisdiction point, because their respective witnesses were at the Court and the case was then heard on the understanding that the Court should only decide the case on the merits if it found against Mr. Young's argument on the jurisdiction point.

8. I am afraid I cannot agree with Mr. Young's argument that this Court does not have jurisdiction. There can be no doubt in this case that the respondent did submit to the jurisdiction of this Court when it filed it's "grounds of opposition". Although this pleading did not comply with Rule 17(2) of the Workmen's Compensation (Rules of Court) Rules and Form 5 of the schedule to those rules, it did clearly reveal that the respondent was submitting to the jurisdiction of this Court. This pleading was filed on the 3rd January 1978. On the 18th January 1978 both parties appeared before a judge of this Court when the matter was adjourned because the Court was informed that the applicant had made an application for legal aid. No objection to jurisdiction was taken at that stage. The matter came up before the same judge again on the 16th August 1978, when both parties were represented and an order was made adjourning the matter to a date to be fixed. Again no objection was taken to the jurisdiction of the Court. On the 30th November the applicant filed a "Notice under Section 47 (and Section 49) of the Evidence Ordinance and Evidence (Hearsay) Rules" in relation to a medical report dated the 27th November 1978 by Dr. Wedderburn, requiring the respondent to serve a counter notice upon the applicant within 7 days if it desired the doctor to give evidence. On the 1st December the respondent filed a similar notice in respect of other medical reports requiring the applicant to serve a counter notice on it if he required the doctors who made the reports to give evidence. The respondent also filed a counter notice to the applicant's notice but this was obviously defective in that it referred to the respondent's own witnesses and not those of the applicant. On the same day the 1st December 1978 the respondent filed a praecipe for writ of subpoena on one of the two doctors referred to in its counter notice. On the 4th December 1978 the respondent filed a counter notice requiring Dr. Wedderburn to give evidence in person at the trial.

9. It is clear from the history of this set out above that the respondent company did submit to the jurisdiction of this Court. It therefore brought itself within the first phrase in section 30 "if the employer submits". In my judgment it cannot at this late stage raise this objection because the ordinance gives jurisdiction once the employer submits to the jurisdiction. This Court has a contingent jurisdiction conferred by statute. Once the contingency has occurred as in this case, it cannot subsequently be taken away.

10. The case cited by Mr. Young from the annual practice, namely Crosfield v. Manchester Ship Canal Co. [1904] 2 Ch. 123, 142 C.A. was not a case where a contingent jurisdiction had been conferred by statute. In that case two Acts of Parliament had on the contrary ousted the Jurisdiction of the Courts, so that the objection taken at the trial itself prevailed. The Court of Appeal in England held that in a proper case the Court will allow an objection of ouster of jurisdiction to be raised at the trial of an action though not previously raised by the pleadings and will treat the pleadings as amended accordingly. Furthermore it is clear that once the jurisdiction of the Court has been ousted, a defendant does not submit to the jurisdiction even by entering unconditional appearance.

(See Wilkinson v. Barking Corp. [1948] 1 K.B. 721)

There are the types of case where the jurisdiction point may be raised at the trial without having been expressly pleaded.

11. There are a number of authorities which deal with the subject of waiver of the objection to the jurisdiction in appropriate cases. Once such case was Moore & Anor. v. Gamgee [1890] 25 QBD 244 where the plaintiffs commenced an action in a County Court within a district, where it was necessary to obtain leave to sue in that Court under Section 74 of the County Courts Act 1888. The defendant appeared and the case was heard and partly determined and adjourned to a future day. At the second hearing the defendant for the first time objected to the jurisdiction of the Court. It was held that by appearing and contesting the action the defendant had waived the objection. A similar waiver was upheld in Pringle v. Hales [1925] 1 K.B. 573.

12. In my view the present case can be distinguished from the above-mentioned cases because jurisdiction is conveyed by the Workmen's Compensation Ordinance on a certain contingency. Once that contingency has occurred then the Court has jurisdiction. The contingency did occur in the present case and the Court exercised its jurisdiction. Jurisdiction once conveyed under this Section 30 cannot later be withdrawn. A respondent who objects to the jurisdiction of the Hong Kong Court must not submit to the jurisdiction of this Court and must not have agreed to submit himself to it. He should make it clear if he files an answer to the application, that it is conditional upon the Court having jurisdiction. If he takes any further step in the action, he should make it clear that it is conditional upon the Court having jurisdiction. The moment he submits to the jurisdiction of the Hong Kong Court, then the Hong Kong Court is given jurisdiction under Section 30 of the Workmen's Compensation Ordinance. In my view the second phrase in Section 30 "has agreed to submit to the jurisdiction" would cover cases where there is a term in a contract where the parties have agreed to submit to the jurisdiction of the Court. If the parties had entered into a contract which contained such a term then the employer could not successfully object to the jurisdiction of the Court even if he had never submitted to its jurisdiction. It is not necessary for me to decide what other situations would fall within that second phrase because I am satisfied that this case falls within the first phrase.

13. For these reasons I find against the respondent on the preliminary point, and I hold that this Court has jurisdiction to determine this matter.

14. I now turn to the merits of the case. The accident occurred on the 13th December 1976. The applicant was admitted to the University Hospital of Jacksonville on the 13th December and an operation was performed or him on the 20th December at which time in the words of the hospital report "open reduction and internal fixation was employed utilising a Kuntscher nail, cerclage wire and A.S.I.F. screw in the distal fragment. His post operative course was uncomplicated and he was sent to the Department of Physical Therapy for rehabilitation of the left lower extremity." He returned to Hong Kong on the 8th January 1977 and he was admitted into the Canossa Hospital for further treatment on 11th January 1977 which included physiotherapy. He was regularly seen during this time by two doctors of Dr. Vio & Partners, first by Doctor R.M.T. Wood and subsequently by Dr.P.C. Hsieh. On 20th April Dr. Hsieh wrote to the respondent informing it that the applicant would be fit to resume work on the 9th May 1977. On the 13th May 1977 Dr. Hsieh wrote another letter in which he stated that the patient had fully recovered and there would be no permanent disability or disablement.

15. In fact a medical assessment dated 25th October 1978 has been admitted by consent showing that there is a 3% permanent partial disability.

16. Since Dr. Hsieh had certified the applicant as being fit for work on the 9th May 1977, the respondent company maintains that it is not liable to pay compensation in respect of any period after that date, but is prepared to make an ex-gratia payment to the applicant of a sum equivalent to an award under section 10 of the Workmen's Compensation Ordinance in respect of the applicant's total temporary incapacity from the date of the accident until the 9th May 1977. Since it is agreed that his salary was $3,000 per month, the respondent company is prepared to pay the applicant a sum calculated at the rate of $2,000 per month during the period of sick leave. Without admitting liability under section 9 the respondent company is also prepared to pay a sum at $2,400 as an ex-gratia payment to the applicant on the basis that there is a permanent partial disability of 3% though it does not admit that this is causally related to the accident.

17. There can be no doubt that the applicant is entitled to compensation at the prescribed rate from the date of the accident (13th December 1976) to the date the applicant was certified fit to return to work (9th May 1977). The real dispute between the parties is whether the applicant is entitled to compensation for temporary incapacity under section 10 in respect of any period after this time and whether he is entitled to compensation for permanent partial incapacity under section 9. Although the applicant had been certified fit to return to work by Dr. Hsieh on the 9th May 1977, he did not infact resume work and continued to complain of pain and eventually after a visit from a respresentative of the Seaman's Union, the respondent company decided to take a second opinion on the matter and he was sent to see Dr.P.G. Dickinson of Drs. Anderson & Partners. On the 17th August 1977, Dr. Dickinson sent a report to the respondent in which he pointed out that the X-rays showed good alignment and apparently good fixation although he thought the nail used had been a little bit narrow. However whilst anterior-posterior views showed apparently sound union, the fracture line was still evident. On the other hand the lateral view showed 'far from adequate union'. He also reported that the applicant's left thigh muscles were also greatly reduced in tone and bulk and he required intensive physiotherapy to regain strength. At this time Dr. Dickinson not surprisingly did not consider the applicant fit for sea-going duties.

18. There would thus appear to be a conflict between Dr. Dickinson's view and Dr. Hsieh's view, for it is hardly likely that the applicant's condition would have got worse between the 9th May 1977 and the 17th August 1977, at least in so far as the knitting of the bones was concerned, Furthermore Dr. Dickinson's letter dated the 17th August indicated that the pain was diminishing. This would be more consistent with the applicant's claim.

19. The applicant was seen regularly by Dr. Dickinson thereafter until eventually on the 5th December 1977 Dr. Dickinson, after taking further X-rays, reached the conclusion that the fractured left femur was then soundly united and apart from some aching in the thigh, the applicant had no symptoms. Dr. Dickinson regarded him as fit to return to seagoing duties but said that the nail should be removed in the future, but not before 6 months had elapsed.

20. The period he was seeing Dr. Dickinson from the 17th August 1977 until the 5th December 1977 is therefore the second period in this case in which the applicant was found unfit to resume work by a registered doctor.

21. However the applicant did not return to work on the 6th December 1977 and he was seen again by Dr. Dickinson on the 2nd February 1978 after complaining of more pain. Further X-rays showed that the Kuntscher nail had snapped at the level where this screw was inserted to tighten it. Dr. Dickinson was of the opinion on this date that there was an electrolytic problem due to the screw and the nail being made of different metals. He certified the applicant as unfit for sea-going duties. He felt that nothing could be done at that time apart from wait and arranged to see the applicant in one month's time. A follow-up report dated rather surprisingly the 31st April 1978 again indicated no changes and Dr. Dickinson certified a further period of sick leave for a further month. On the 4th May 1978 Dr. Dickinson saw the applicant again and found that there was a mass of new bone formation around the fracture site. This was the reason for the applicant's discomfort, because the new bone caused pressure from underneath and Dr. Dickinson described the screw head as palpable. Dr. Dickinson decided that although a further operation was necessary to remove the proximal part of the nail and screw, he would leave it for another 2 months and he indicated that in his opinion the applicant would be fit to resume sea-going duties within two weeks follow-ing the operation.

22. Eventually the applicant was sent to Doctor Y.Y. Kwok for the operation and Dr. Kwok agreed with Dr. Dickinson that the wire, nail and screw might have been made of different metals and the electrolytic effect would have caused weakening of the nail but he did not consider the nail was too narrow. He did however pass the opinion in his report on the 3rd July 1978 that circumfirential wiring of fractures had been condemned by most orthopaedic surgeons because it would produce pressure necrosis of underlying bone, unless it was removed within a few weeks. The operation was performed by Dr.Y.Y. Kwok on the 14th July 1978 and the applicant was examined by Dr. Kwok again on the 8th August 1978. On this latter occasion his left lower limb was found to be one inch shorter and there was flexion in the left knee of 5 degrees less than the right. However it was the opinion of Dr. Kwok that these would not prevent him from walking normally. Dr. Kwok advised the applicant to wear a raised shoe on the left side in order to avoid excessive movement to his lumber spine. He has also advised him to return to work as soon as possible.

23. The period between the 2nd February 1978 when Dr. Dickinson found that the Kuntscher nail had snapped, up until the 8th August 1978 when Dr. Kwok advised the applicant to return to work as soon as possible, is the third period for which the applicant had been found to be unfit to work by a registered doctor. It will be seen therefore that the applicant has been found to be unfit for work by a registered doctor on 3 occasions (1) from the date of the accident on the 13th December 1976 to the 8th May 1977, (2) from the 17th August 1977 to the 5th December 1977, and (3) from the 2nd February 1978 until the 8th August 1978.

24. Mr. Young for the respondent disputes liability in respect of any claim after the 9th May 1977 on the grounds that there has been a novus actus interveniens or novus causa interveniens. The intervening factor he maintains may be one of two things. First that the original operation was conducted in a manner which neither of the two doctors who gave evidence in these proceedings, namely Dr. Hsieh and Dr. Kwok, would themselves have employed and secondly that the applicant did not go back to work when certified fit to do so by doctor Hsieh in May 1977. He argued that the manner in which the operation had been conducted gave rise to two things which would not otherwise have been present - (i) the introduction of the nail at the site of the fracture and a bit of wire that was tied round the site of the fracture which he maintained has resulted in there being a degree of pain well after the time the pain would have been expected to continue had the operation been performed properly in the first place; - (ii) the employment of a screw when it was unnecessary to use one and the very considerable risk of electrolytic action. This he maintains is not a method which should have been employed in the first place. He relied upon the opinion of both Dr. Hsieh and Dr. Kwok to the effect that the most likely cause of the breaking of the nail was in fact electrolysis. He also relies on these two doctors to prove that the applicant's problems after May 1977 were due to his failure to return to work.

25. Mr. Ferago on the other hand submits that the essential question which must be answered is whether all the difficulties which the applicant suffered subsequent to the accident which occurred on the 13th December 1976 were causally related to that accident and he maintains that they were.

26. In relation to the proper principles of law to be applied he has referred me to Willis on Workmen's Compensation 35th Edition at page 245 and the cases referred to therein. He has also referred to the District Court case of Lai Tak v. Leung Yau-kan [1961] D.C.L.R. 185, 190, MacDonald's Workers' Compensation 4th Edition at page 279 and the Hong Kong cases of Lam Yau v. Wing Hing Saw Mill [1965] D.C.L.R. 127 and Wong Hak-chung v. Chow Wai-kam 5 H.K.L.J. 263. Mr. Young has not sought to challenge the general principles which emerge from these references.

27. It would seem from these authorities that the question as to whether the applicant's problems after the 9th May 1977 resulted from the accident resolves itself into an inquiry into the chain of causation. Are his problems after the 9th May 1977 a result of the accident, or are they the result of (a) defective medical treatment and/or (b) unreasonable behaviour by the applicant in not returning to work in May.

28. So far as (a) defective medical treatment is concerned I quote from Willis on Workmen's Compensation at p. 272

"Incapacity resulting from a bona fide and reasonable exercise of medical skill when treating the accidental in jury will generally be incapacity in respect of which compensation is payable; but when it is contended that the workman would have recovered from the effects of the accident or injury if it had not been for the negligence or unreasonable treatment of the patient by the medical practitioner, the question of novus actus interveniens arises (see page 245). So, where it was alleged that the present incapacity of the workman was due to the negligence of a bone setter, the Court of Appeal found the issue to be tried as follows: "Is, or is it not, the condition of this man, at the time when he comes before me (the Arbitrator), due, substantially, not to the original accident, but to the mismanagement of the bone setter?" (Humber Steam Towing Co. v. Barelay (1911) 5 B.W.C.C. 142; 34 Digest 351 para. 2824; Rocca v. Stanley Jones & Co. (1914), 7 B.W.C.C. 101; 34 Digest 351 para. 2825). .............. Whether the incapacity arises from the alleged treatment is a question of fact (Harrison v. Ford (1915) 8 B.W.C.C. 429; 34 Digest 351 para. 2826). If the incapacity may be due to the accident or equally due to the alleged bad treatment of the injury, the onus of proof lies on the employer to establish the latter, and if they fail to do so the workman ought to succeed on this issue (Bower v. Meggitt (1916) 10 B.W.C.C. 146; 34 Digest 343 para. 2773).

29. The dividing line between medical treatment, which constitutes a novus actus interveniens and that which does not, is not entirely clear, although there has been a lot of discussion on the matter both in the English Court of Appeal and The House of Lords in cases brought under the Workman's Compensation Act of 1925. Under this Act it was necessary for the workman to show that his incapacity resulted from the injury. Likewise under Section 9 and 10 of our Workman Compensation Ordinance it is necessary for the workman to show that the incapacity "results from the injury". The English decisions should therefore be of assistance when considering a claim under our Ordinance.

30. The effect of the earlier decisions of the Court of Appeal were stated in the dictum of Parcq L.J. in Rothwell v. Caverswall Stone Co. Ltd. [1944] 2 All E.R. 350 at P. 365 "A" as follows:-

	"In my opinion, the following propositions may be formulated upon the authorities as they stand: First, an existing incapacity "results from" the original injury if it follows, and is caused by that injury, and may properly be held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though, but for the original injury, there would have been no incapacity. Secondly, negligent or inefficient treatment by a doctor or other person may amount to a new cause and the circum-stances may justify a finding of fact that the existing incapacity results from the new cause, and does not result from the original injury. This is so even if the negligence or inefficient treatment consist of an error or omission whereby the original incapacity is prolonged. In such a case, if the arbitrator is satisfied that the incapacity would have wholly ceased but for the omission, a finding of fact that the existing incapacity results from the new cause, and not from the injury, will be justified.
	In stating these propositions I am far from seeking to lay down any new principles of construction. I have sought only to collect, by a process of induction, such general, and necessarily vague, rules as seem to emerge from the decided cases. Such rules do no more than indicate the bounds within which an arbitrator is free to decide - The province of fact. It is constantly being said, and must always be remembered, that the arbitrator is the sole judge of the facts, ....... It is apparent that the line between those cases where a "supervening cause" aggravates the injury and yet is not to be regarded as superseding the injury as the cause from which incapacity results, and these others in which the cause is "new" and the existing injury can be held to result from it alone, is a line which can only be drawn after a full examination of all the relevant facts, and then not with well-defined precision. No rule can be laid down by reference to which the arbitrator, having ascertained the facts, will be enabled to put the case infallibly on the right side of the line. If, however, he confines himself to the question formulated by Lord Cozens-Hardy, M.R., in the Humber Towing Co.'s case, his own intelligence will be his surest guide, and he will. I think be all the more likely to come to a right decision if he refuses to be drawn into a discussion of the more sutle refinements of the theory of causation."

31. This passage from the Judgment of Du Parcq, L.J., was approved by the House of Lords in the case of Hogan v. Bentinck West Hartley Collieries (Owners), Ltd. [1949] 1 All E.R. 588. The first two paragraphs of the passage above quoted were expressly approved by Lord Simmonds, (at 592 "B"), and Lord Reid (at 607 "B") as representing the Law of England at that time, though Lord Moreton of Henryton (598 "C") doubted if negligence or inefficient treatment by a doctor or other person could justify a finding of fact if it merely consisted of an error or omission whereby the original injury is prolonged. Their Lordships did however have some words to add themselves by way of explanation or qualification.

	Lord Simmonds said "The question whether a present state of incapacity is substantially the result of an original accident or of the later negligent act of a doctor is to ask, ........ whether the present incapacity is due to the original accident or to the intervention of a novus actus which breaks 'The chain of causation' and the question can only be answered on a consideration of all the circumstances and, in particular, of the quality of that later act or event." (593 "C")
	Lord Normand summed up the position in this way" ....... the words 'results from' have now been held to have the meaning which, apart from authority I was disposed to assign to them, and the question which the arbitrator ought to put to himself in a case of this sort is whether the continuing incapacity is in the ordinary sense caused by the original injury or by the unskilful or negligent conduct of the doctor or surgeon. The form of the question is not meant to exclude and ought not to exclude in an appropriate case the answer that the original injury and the conduct of the doctor are each partly the cause of the continuing incapacity.
	A question of causation is a question of fact, and it is nonetheless a question of fact, though a finding that a particular event is the cause of another event, or of a particular condition of things, must involve the selection of the particular event as the cause out of the total complex of events and conditions, which are necessary to the production of the given result and the treatment of the rest as a background which is practically irrelevant. It is thus that we proceed in ordinary practical affairs, and is thus that an arbitrator must also proceed in deciding a question of causation. The limits to the finality of a finding on causation by an arbitrator are that it, like other findings of fact, must not proceed on a misdirection in law and that it must be supported by legal evidence."
	"...... I start from the proposition, which seems to me to be axiomatic. That if a surgeon, by lack of skill or failure in reasonable care, causes additional injury or aggravates an existing injury and so renders himself liable in damages, the reasonable conclusion must be that his intervention is a new cause and that the additional injury or the aggravation of the existing injury should be attributed to it and not to the original accident. On the other hand, and operation prudently advised and skilfully and carefully carried out should not be treated as a new cause, whatever its consequences may be. A court of Appeal would, therefore, be entitled to hold that an arbitrator had misdirected himself if he had made an award in favour of a workman in respect of an incapacity which he had found to be attributable to the surgeon's actionable negligence, or if he had refused to make an award where the injury by accident still subsisted, though in an aggravated form, after an operation prudently advised and properly carried out. But these limiting cases, which exemplify the duty of the Court to decide questions of remoteness as matter of law. A duty which provides a necessary safeguard against aberrations from the standard of sound practical sense, are somewhat theoretical. For the issue before the arbitrator is not whether the surgeon's conduct was actionable. And a finding that it was actionable would be out of place. He must find the facts and among them the cause of the incapacity. If his finding is not repugnant to good sense, it cannot be set aside because a Court of Appeal may think that he has failed to place the surgeon's conduct at the correct point in the nicely graduated scale of human misfortune and fallibility that extends from venial error of Judgment to actionable want of skill or negligence. That is a question on which Judges and juries may differ and it is not to be solved by treating it as a question of law."

32. Lord Moreton of Henryton accepted the propositions stated by Du Parcq L.J. in the first two paragraphs of the passage quoted with the reservation I have mentioned regarding omissions. He also went on to state that he entirely agreed with the observations contained in the third paragraph.

33. The three Judges referred to above gave the majority Judgment dismissing the appeal on the grounds that the trial Judge had not mis-directed himself and that the House of Lords was bound by his finding of the facts.

34. Lord Macdermott who dissented thought that the trial Judge had misdirected himself on the law. It was his view that the meaning of the act must be ascertained and applied to his conclusions. It is unnecessary for me to set out his views because they were not shared by the other Judges.

35. Lord Reid dissented because the only finding of the trial Judge which reflected on the skill of the doctor was that the operation was "ill advised". Whilst he accepted this as a finding that the doctor made an error of judgment, he did not think that it amounted to a finding that there was a culpable error or an error which a reasonably skilful and careful doctor would not have made. He said

"I am not prepared to hold that an action by a medical man against which nothing can be said except that it was ill advised is sufficient to bring the case within the principle of the earlier cases."

608 D

He also stated that there was no finding that any other treatment would have been successful or even would probably have been successful in curing the workman's incapacity before the date of the arbitrator's decision - and added

"So far as I am aware it has never been held that novus actus interveniens is a reason for stopping compensation from the date of the novus actus; before compensation can be stopped it is essential to prove that is there had been no novus actus, the incapacity resulting from the original injury would have ceased."

608 H

36. Lord Reid did, however, as I have said, adopt the statement of the law set out in the passages from the Judgment of Du Parcq L.J. in Rothwell's case referred to above. He qualified it in the following way -

"Let me however, now assume that it is too late to review the rule that wrong medical treatment may break the chain of causation so that its effect cannot be held to result from the original injury. I do not think it has ever been decided what degre of error or inattention is necessary to bring this rule into operation. It is clear that there are many cases of wrong treatment which cannot have this effect ............. there must be a permissible margin of error even for the doctor or surgeon who is highly efficient. The highest degree of skill on every occasion cannot be expected of any man. It could not, I think, be maintained that the chain of causation is broken by a mistake which is not in any degree blameworthy ......... I do not find in any of the cases any warrant for applying the doctrine of novus actus interveniens unless there has been grave lack of skill or care on the part of the doctor. Indeed, I think that the dividing line between that degree which will not ought to be the dividing line between that degree of lack of skill or care which may make the doctor liable in damages and that which will not."

607 B

37. It would seem that the learned Judges who by a majority dismissed the appeal, would not have agreed with this last proposition because, by holding that there was some evidence to support the conclusion that there was a novus actus, they must have been satisfied that the evidence of an ill advised operation constituted this, but this fact would not appear to go far enough per se to sustain an action for damages.

38. It would thus seem that something less than actionable negligence may constitute a novus actus. This appears to be the view which Morley-John J. took in WONG Hok-chung and CHOW Wai-kam 1974 H.K.L.R. 506 at page 512 when he was reluctant to extend the narrow interpretation of Section 9 of the Workman's Compensation Act as laid down in Rothwell's case to claims at common law for personal damages.

39. So far as I am aware there has never been a case where a novus actus interveniens has been said to have arisen as a result of an inefficient operation where no blame or error of Judgment could be found in the doctor at all. Indeed the dictum of Lord Normand in the third paragraph quoted above suggests that any attempt to argue this would be unsuccessful. I have therefore directed myself that since the respondent Co. has contended that the applicants incapacity after the 8th May 1977 may have resulted from a defective operation, the burden is on the respondent Co. to prove that it resulted substantially from negligence, unskilfulness or inefficiency on the part of the surgeon and not from the original accident and that this is a question of fact. I will consider the evidence later.

40. So far as (b) unreasonable behaviour by the applicant in refusing to return to work on the 9th May is concerned I quote from MacDonald's Worker's Compensation 4th Edition at p.282.

	"The injured worker must do nothing to prevent or delay his recovery; further, he must observe such precautions and take such measures as are reasonable in the circumstances of the case, or as are prescribed as being proper by medical authority. If the incapacity or it's continuance is due to the fact that the workman has not behaved reasonably, then it is no longer the consequence of the accident, but is due to the worker's unreasonableness (Warncken v. Moreland & Sons Ltd. [1909] 2 B. 350.) But it must be shown both first, that the conduct was unreasonable, and secondly that the incapacity was caused by the unreasonable conduct.
	This issue is always raised as a defence, and the onus of proof is on the defendant; the worker is not required to prove in the first instance that the injury was not occasioned by unreasonable conduct (Marshall v. Orient Steam Navigation Co. Ltd. [1910] 3 B. 15; Bower v. Meggitt [1917] 10 B. 146). Whether or not the conduct has aggravated or continued the effect of the injury and what constitutes unreasonable conduct on the part of the worker are question of fact depending upon the circumstances of the particular case (Simsons v. Burn [1913] 6 B. 455 (I.R.); Moss & Co. v. Akers [1911] 4 B. 294)."

41. Although this is a textbook on the law in New Zealand I rule that these general principles, which are based on common sense, are applicable in Hong Kong. With the exception of Simsons v. Burn they are all English Authorities which are quoted.

42. It would be easier for me to deal with the second leg (b) of Mr. Young's submission first. Applying the above principles I have reached the conclusion that it cannot be said that the applicant acted unreasonably in failing to return to work on the 9th May 1977. He has testified in the witness box that he was in considerable pain at this time, and the medical evidence on the subject is not entirely clear. It is true that Dr. Hsieh testified that the applicant never complained about continual pain but only that the pain was on and off. Dr. Hsieh did not regard that as abnormal. If the patient had compained of a persistent severe pain, he, Dr. Hsieh, would have had the immediate impression that the fracture had not properly healed and he would carry out further investigation to ascertain the nature of the pain. He did not think that he would discharge the applicant at all, let alone let him resume his duties. He maintained that he carried out a clinical test for union and consolidation and found that at that stage the union was solid. This evidence of Dr. Hsieh would appear to indicate that the applicant has not been entirely truthful when he testified that he was in continuous pain. The evidence that the union was solid, however, does not appear to be consistent with the opinion of Dr. Dickinson who was of the opinion when he saw the applicant in August 1977 that there was a 'far from adequate union'. It is true that an attempt has boon made to pour cold water on this opinion by illiciting from Dr. Kwok his opinion that one cannot tell whether the union is far from adequate or not just by looking at the X-ray photographs without carrying out a clinical test as well. Dr. Dickinson, he ever, has not been celled to give evidence in these proceedings. His written opinion is before the Court as an agreed exhibit and his presence has not been required for cross-examination purposes. Furthermore Dr. Kwok did not give his opinion on this matter with complete certainty. On being shown the X-ray photograph taken by Dr. Dickinson and comparing it with the X-ray which he himself had taken on the 17th July 1978 he stated that they showed a gap at the site of the fracture. He gave his opinion that that would indicate a presence of scar tissue between the bony ends but that sufficient new bone had been formed to support the weight of the patient. When he was asked if there was any factor which he noticed about the union which would prevent the applicant from being discharged fit for sea-going duties a couple of months before Dr Dickinson's X-ray, he replied "I should say no". However when asked if he could say that with complete confidence, he didn't answer the question affirmatively, but said that from the X-rays one can say that the fracture had united but one cannot judge the range of movement on the joints like the hips or the knee, the muscle power of that limb or to any shortening of the bone.

43. There is therefore a difference of medical opinion between the doctors as to whether the bone had united properly by May 1977 and whether the applicant was suffering from sufficient pain to render him unfit for duty.

44. There is also the evidence of Dr. Kwok that in his view the operation was performed in such a way that the applicant would have felt considerable more pain than he should. Furthermore it is common ground that the applicant's permanent partial disability is 3% which is different from Dr. Hsieh's prognosis.

45. I believed the applicant when he said that he was still in continuous pain in May 1977. There is however another aspect. "Total incapacity" is defined in the ordinance as "such incapacity whether of a temporary or permanent nature as incapacitates a workman for any employment which he was capable of undertaking at the time of the accident resulting in such incapacity". The duties of a seaman would involve climbing up and down narrow staircases and moving from one deck to another on board ship, and working for considerable periods away from land, possibly having to encounter rough seas. Bearing this in mind and also the difference of opinion of the doctors as to whether the bones had properly united, having also the advantage of hindsight, I am of the opinion that the probability is that he was not completely fit to return to work as a seaman in May 1977 or to work in any other capacity for that matter and he was not fit during the intervening period until he went to see Dr. Dickinson and was further found to be unfit to return to work. I am not satisfied that the respondent has shown that the applicant's incapacity from May onwards until the time he saw Dr. Dickinson and for the period of sick leave which was recommended by Dr. Dickinson was caused by any unreasonable conduct on the part of the applicant. Indeed I was not satisfied that the respondent has shown that the applicant acted unreasonably in failing to return to work in May 1977.

46. I come now to the second period, that is, from the 5th of December 1977 until the 2nd February 1978. The applicant at this stage was in the position of having been certified fit to resume duty by 2 registered medical practitioners, first Dr. Hsieh (R.W.2) in May and secondly Dr. Dickinson, whose written report in December is an agreed document in these proceedings. However the applicant still maintained that he was suffering pain at this time. Although Dr. Dickinson discharged him fit on the 5th December 1977 it is common ground in this case that by the 2nd February 1978 the nail, that is the Kuntscher nail had snapped, and there can be no doubt that the applicant was in considerable pain at this time. Dr. Kwok gave his evidence to the effect that considerable pain may be felt by the patient a few weeks or even a few months before the actual breaking of the nail occurred. This evidence of Dr. Kwok tends to support the applicant's claim that he was still in considerable pain in December. Indeed the applicant said the pain in December was worse than in May.

47. Once again the question arises as to whether the applicant really was fit to resume duties as a seaman on the 5th December 1977. There can be no doubt that the nail must have broken within a comparatively short time after Dr. Dickinson had discharged him fit. And there can be little doubt that the applicant would have suffered considerable pain for some time before the actual breaking of the nail. Bearing in mind again the nature of a seaman's duties and the fact that he would have to spend considerable time away from land, I have reached the conclusion again with the advantage of hindsight that it could not be said that he was fit to discharge his duties as a seaman at this time even though he may have appeared to be fit. Indeed he would obviously not have been capable of doing any menial job at this time. I find that the applicant has established that he was incapable of performing his duties as a seaman from 13th December 1976 until 8th August 1978. I am not satisfied that the respondent has discharged its onus of proof that the incapacity or any part of it was caused by unreasonable behaviour on the part of the applicant. The respondent has therefore failed to prove a novus actus interveniens in respect of (b) the second leg of the submission.

48. The remaining question for e to decide is whether the total temporary incapacity of the applicant after the 9th May 1977 or the partial permanent incapacity of the applicant of 3% were caused by a novus actus interveniens in the form of (a) a defective operation. The respondent company again relies on the evidence of Dr. Kwok and Dr. Hsieh to prove this. Dr. Kwok gave his view that the operation could be criticised in a number of ways but he did not go so far as to say that the doctor who carried out the operation had been negligent or unskilful or acted unreasonably; neither did Dr. Hsieh, although he supported Dr. Kwok's views.

49. All the doctors appear to be in agreement that the breaking of the bail was most likely caused by electrolytic action by the different metals out of which the nail and the screw were made. The opinion appears to be based mainly upon the fact that the nail had broken at the point where it came into contact with the screw. Dr. Kwok did however advance another theory that it could have been caused by metal fatigue. He appeared however to favour the electrolytic theory. It is surprising to me that nobody has tested the metals to see if they are different despite the fact that part of the nail, the screw and the wire have all been produced as an exhibit. The doctors are therefore speculating on the most likely cause. It has not therefore been proved that the breaking of the nail was caused by electrolytic action.

50. Even assuming that the metals were different and that this fact caused the ultimate breaking of the nail, can it be said that the surgeon in the United States who carried out the original operation was either negligent, unskilful or acted unreasonably and that his negligence unskilfulness or unreasonable behaviour led to the use of different metals? I don't think it can. So far as I can gather from the medical evidence in the case electrolytic action is not an unheard of or uncommon thing. Dr. Kwok testified that he personally would not purposely use different metals, but although he put the blame on the doctor for electrolytic action, he did testify in respect of the difference in metals. "There is no way to tell by just looking at them." He did not go on to explain why it was the doctors fault if the metals turned out to be different. So far as the use of wire is concerned Dr. Kwok appeared to be critical of this saying that this practice had been condemned by most authorities more than 20 years ago. He did not say that it had been condemned by all or whether it had been condemned in the United States of America, where the operation was carried out. Furthermore he was not prepared to say to what extent the operation caused the applicant's incapacity after May 1977. One moment he appeared to blame poor management as the principal cause; the next he said that it was because the applicant had not obeyed the instruction to return to work. In re-examination he said it was essentially the result of the way the operation was performed. At one stage he appeared to suggest that the intensive physiotherapy prescribed by Dr. Dickinson might be partly to blame. He clearly couldn't say with certainty what caused it. Dr. Hsieh thought it was partly the applicant's failure to return to work and partly the way the operation was performed. He did not say which was the substantial cause.

51. The burden is on the respondent company to show there is a novus actus interveniens in that the applicant's incapacity did not result from a bona fide and reasonable exercise of medical skill on the part of the surgeon in the United States of America when treating the accidental injury but substantially from his negligent, inefficient or unreasonable treatment of the applicant. I am not satisfied that the respondent company has discharged that burden. I find that the applicant's incapacity after the 8th May 1977 resulted from the accidental injury though it may have been aggravated by the weakening and eventual breaking of the kuntscher nail.

52. I therefore hold that the applicant is entitled to workman's compensation under section 10 at the agreed rate of $2,000 per month from 13th December 1976 until 8th August 1978 which is 2,000/30 x 605 days = $40,000.

53. I hold that the applicant is entitled to workman's compensation under section 9 at the agreed figure of $2,400.

54. This figure appears to be in accordance with the spirit of the recently added proviso to that section (added by 4 of 1978 5.3).

55. I therefore award compensation at $40,000 under section 10 and $2,400 under section 9. From the total figure of $42,400 should be deducted the amount of $5,876 which has already been paid, leaving a balance of $36,524.

56. I give judgment for the applicant in this amount.

	(N.B. Hooper)
	Judge of the District Court