Chan Kiu v. Exclusive Environmental Services Ltd

DCEC000170/1987

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTLON

EMPLOYEE'S COMPENSATION CASE NO.170 OF 1987

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IN THE MATTER OF AN APPLICATION BETWEEN:

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Coram: H.H. Judge Yam in Court

Date of judgment: 19th, 20th July 1988, 30th August 1988.

Mr. T.L. Comerford of Legal Aid Department for the Applicant.

Mr. Benjamin Yu instructed by Messrs. Deacons for the Respondent.

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J U D G M E N T

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1. Mr. SIN Lai was employed by the Respondent (one Exclusive Environmental Services Ltd.) as a cleaning worker. He was posted to work at the carpark of Provident Centre, North Point. His duties involved collecting rubbish into metal wheeled containers each of them would be about 1.5m high and 1 m in diameter and pushing them to the rubbish collection point. There was hearsay evidence that the container was some 800lbs and the distance involved was about 800 feet. Parties were contented that it was several hundred lbs. in weight and the distance was several hundred feet. The performance of his duties therefore involved considerable physical exertion at his then age of 54.

2. On 15th November 1985 at about 10:30 A.m. Mr. Sin was found collapsed whilst working (see the letter of University of Hong Kong dated 12th February 1986 in Exhibit RI one Form 2 filed under E.C.O. by the Respondent). When he was admitted to Queen Mary Hospital he was comatose with laceration over the forehead. There is no direct evidence as to how he collapsed, whet was he doing at that time and who actually found him. From the evidence before me I am tired to find that Mr. Sin probably collapsed whilst he was working.

3. The condition of Mr. Sin deteriorated and he died at 3:05 a.m. on 21st November 1985. The cause of death was cerebral infarction which is defined as an area of the brain in which the blood flow had fallen below the critical level necessary to maintain the viability of the tissues.

4. The present application was brought by the widow of Mr. Sin on the ground that his injury and death was arising out of and in the course of his employment. However the Respondent denied that. The dispute between the 2 parties is whether the death of Mr. Sin was in any way related to his work.

5. The Applicant called a neurosurgeon Dr. Peter Wu and the Respondent called 2 neurologists: Dr. Edmund Woo and Dr. Robert Ho. All 3 medical doctors gave a written report on the matter. However the hospital record of Queen Mary Hospital was not available to them by then until it was produced by the Hospital t the very beginning of the trial in answer to a subpoena taken out by the Respondent. In my view either party should make a discovery of documents on the Hospital before the opinion of these 3 doctors was sought as this would certainly narrow the issue to be tried which will be apparent in a moment hereinbelow.

6. It is common ground among the 3 doctors that there are 2 causes of cerebral infarction: (1) cerebral thrombosis; (2) cerebral embolism. All 3 doctors considered these 2 possibilities in their reports. However the Hospital record (Exhibit Rl) was produced, all 3 of them agreed that tae cerebral infarction of Mr. Sin was one of embolism rather than thrombosis as the Progress Sheet has this entry: "CVS AF" which means Central Vascular System, Atrial Fibrillation which is a form of irregularity of the heart rhythm arising from abnormal pace and this happens in the atrium chamber of the heart causing irregularity of the heart rate. It also causes turbulences of the blood Plow in the chamber which may result in the formation of the blood clot ("embolus") in the chamber. If dislodged it would be transferred towards other parts of the body including the brain, in which case embolism would occur.

7. The difference in opinion between the doctors on each side is this:

Dr. Peter Wu contended that physical exertion as in the case of Mr. Sin would contribute to his death of cerebral infarction which in turn was caused by embolism whereas both Dr. Edmund Woo and Dr. Robert o contended otherwise in that physical exertion has no bearing on embolism. All 3 doctors have an impressive curriculum vitae.

8. Dr Peter Wu said this in his report (Exhibit A2):

"If Mr. 'Sin suffered from an embolic infarction with a diseased heart being the source of the emboli then we can declare that the physical exertion would undoubtedly have promoted the dissemination of the emboli, hence directly contributed to his death."

9. Under cross-examination he said-that his contention was based on his clinical experience. By this I gathered from him that he meant some of his patients collapsed during physical exertion and was found to have embolism. He was not aware of any specific studies on this aspect of embolism. When presented with the article by Dr. L.R. Caplan et. al. on "Cerebral Embolism in the Michael Reese Stroke Registry" he frankly admitted he was not aware of either this article or Dr. L.R. Caplan although he could accept that "Stroke" is a well-known medical journal. He also admitted that he had handled only 4 cases of embolism last year but could not recall the condition of onset of these patients. He could not give any statistics as to the number of embolism patients in the past 20 years nor the conditions of their onset of embolism. He agreed that Adams and Victor on Principles of Neurology is a authoritative textbook and the passages read to him by Counsel for the Respondent. In particular the passage at p.565 thereof said that:

'Of all strokes, those due to cerebral embolism develop most rapidly, "like a blot out of the blue". The full blown picture evolves within several seconds or a minute, exemplifying most strikingly the temporal profile of a stroke. With rare exceptions, there are no warning episodes whatsoever. The embolus strikes at any time of the day or night. Getting up to go to the bathroom is a time of danger.' (Emphasis mine).

10. On the other hand both Dr. Edmund Voo and Dr. Robert Ho are of the firm view that physical exertion would not precipitate or contribute to the occurrence of embolism. Their contention was based on medical authorities and scientific findings. They are Adams and Victor and the articles of L.R. Caplan et. al. cited above. According to Caplan only about 5% for cardiac embolism cases were found to have onset during exertion. 60% was found during daily living activities and 31% on awakening (sec Table 3 thereof). Of the 5 or 6% it did not mean that they were caused by exertion. They were simply found to have embolism during exertion.

11. I prefer the opinion of Dr. Edmund. Woo and Dr. Robert Ho. Their evidence was supported by authorities and scientific findings and explanation. I found that Dr. Peter Wu's opinion is entirely dogmatic. He could not even give any statistic of his clinical experience. His belief of the connection between physical exertion and embolism was not supported by any scientific explanation.

12. On the contrary I accept Dr. Edmund. Woo and Dr. Robert Ho's evidence to the effect that embolism was caused by atrial fibrillation which in turn was probably caused by some underlying disease of the heart. Physical exertion would not increase or enhance embolism. Oncc an embolus is formed it would be dislodged onto the ventricle and thereafter to other part of the body even if the heart is beating at much lower rate of say 40 beats/minute.

13. Further physical exertion by itself would not cause heart disease responsible for atriel fibrillation condition. It would actually prevent heart disease. A person with underlying heart disease (say coronary artery disease) would show shortness of breath fatigue or chest pain (indicating angina condition) during over physical exertion which therefore would worsen the condition of the heart disease. But then it would in the end result in M.I. (Myocardiac Infarction). There is no indication of M. I. in Mr. Sin. In fact the etiology, ECG, and laboratory test in the hospital record indicated there was no M. I. in Mr. Sin. Accordingly I found that the injury and death of Mr. Sin due to embolism was probably not caused by the physical exertion during his work. At least in this case the Applicant failed to prove that that was probably the case.

14. Incidentally there is some hearsay upon hearsay evidence to suggest that Mr. Sin was a smoker and a drinker which are both conducive to heart disease. But I would not rely on these pieces of evidence in coming to my aforesaid finding and conclusion.

15. Mr. Yu for the Respondent referred me to 2 authorities, viz:-

1. HO Woon-king v. The Hong Kong & Kowloon Wharf & Godown Co. Ltd.

16. [1965] DCLR 265 (per Judge Pickering as he then was)

2. Clover, Clayton & Co. Ltd. v. Hughes.

17. [1910] A.C. 242 (H.L.(E)).

18. In Ho's case, the Applicant collapsed in the course of employment doing very light work after doing heavy work. He was found to have suffered a stroke and died 2 weeks later of cerebral haemorrhage. It was decided by Judge Pickering (as he then was) that if the workman died from the disease alone, the employers would not be liable. However the wore was doing contributed to his death in spite of the fact that the workman had a predisposing physical condition. Accordingly the employers held to be liable to pay compensation.

19. In Clover's case a workman suffering from serious aneurism was employed in tightening a nut by a spanner when he suddenly fell clown dead from rupture of the aneurism. The county court judge found upon conflicting evidence that was caused by a strain arising out of the deceased operating upon a condition of body which was such as to render the strain fatal. The court of Appeal affirmed this decision. The house of Lords (by a majority of 3 to 2) also affirmed the decision of the Court of Appeal.

20. In Lord Loreburn L.C.'s speech he said this (at p.245):

"It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened, and if the accident is one of the contributing causes without which the injury which actually followed would not have followed."

Further at p.247 the Lord chancellor said:

''It may be that the work has not, as 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 car judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have cone all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease end employment taken together looking at it broadly? Looking at it broadly, I say, and free from over-nice conjectives, was it the disease that did it, or did the work he was doing help in any material degree?"

21. Applying that principle and remembering that I have already found that the work of Mr. Sin did not in any way cause or contribute to embolism which resulted in his death of cerebral infarction, I have no alternative but to dismiss though with some reluctance) the widow's Application herein.

22. There shall be an Order for costs to the Respondent to be taxed in accordance with the Lagal Aid Regulations (with certificate for Counsel) and the Applicant's own costs shall be taxed according to the Legal Aid Regulations.

Representation:

Mr. T.L. Comerford of Legal Aid Department for the Applicant.

Mr. Benjamin Yu instructed by Messrs. Deacons for the Respondent.