Yang Fook v. Ng Chung Kuen

DCEC000027/1971

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 27 OF 1971

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

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

Coram: D. Cons, D.J.

Date of Judgment:

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

JUDGMENT

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

1. In this action for workmen's compensation I gave my decision and the reasons therefor verbally at the close of the day but intimated that I would, if so requested, reduce those reasons to writing. That request has now been made by the Applicant.

2. Two questions fall to be decided: does the applicant's present condition arise from an accidental slip while actively working on board the respondent's fishing junk or, if not, nevertheless is it still the result of an accident arising out of and in the course of his employment?

3. The first question is one of simple material fact. The Applicant's evidence is that while storing the freshly caught fish in the icehold of the junk he slipped, falling and injuring his head. This is in direct contradiction to the evidence of 3 other persons on board at the time who say in effect, although not in these precise words, that the Applicant suffered a stroke while having a late night snack on deck after the storing of the catch had been fully completed. One of those three is the Respondent and the other two continue to work for him. The Respondent is not insured for possible liability from the incident. It is easy to see the temptation to which he and his employees may therefore be subject. But on the other hand the Applicant may not be immune from a similar kind of temptation. The 2 sailors, particularly Lun Kwok Lai struck me as honest and reliable witnesses and had the matter rested there despite there being some inconsistencies in the evidence adduced for the Respondent, I would, I think, in any event have accepted their evidence in preference to that of a man whose memory may have been affected by what he claims to have been a loss of consciousness for 4 days. But the evidence of Dr. Tso, taken de bene esse by the Deputy Registrar some 2 weeks before the trial, disposes of any hesitation that I might perhaps otherwise have held.

4. I find therefore as a fact that the Applicant's present condition is the result of a stroke that he suffered when enjoying some food following the completion of his labours for that evening.

5. I must turn then to the second question, i.e. was it an accident arising out of and in the course of his employment? It is again a question of fact, but not quite so simple, being confused by the authorities in this field of the law. Indeed so contradictory and confusing are these authorities that one of my brother judges, as he then was, turned his back upon them in complete disgust and resorted to first principles: Ho Woon King v. The Hong Kong and Kowloon Wharf and Godown Co. Ltd.⁽¹⁾ This, if I may with respect say so, very sensible decision was followed in a more recent case: Yip Ho v. The Hongkong and Kowloon Wharf and Godown Co. Ltd.⁽²⁾ Unfortunately the position is still not completely free from that for the later case implies that some specific event must be pinpointed to connect the employment with the accident whereas the comments of the earlier Judge at least leave open the question whether the general nature of the work over period of time might not be sufficient.

6. However, it is conceded in this action - and to my mind very correctly so - that there was an accident in the course of employment. Whether it arose out of the employment depends solely upon the evidence of Dr. Tso. It is unfortunate that I did not have the opportunity to hear the evidence of this witness in person. I am therefore not aware of the intonation or emphasis that he placed upon the particular words that he chose to use, but taking the whole of his recorded evidence as it stands it seems to me that its main burden is that in the particular case of the Applicant it was the underlying disease that led to the stroke and that his work on the junk did not contribute to it at all, let alone in any material degree. In these circumstances I cannot say that the accident arose out of his employment and the action must fail.

7. For the sake of completeness I should add that had my decision been otherwise I would have accepted the evidence of Dr. Yeung and made an award as claimed.

Representation:

(1) 1965 D.C.L.R. p.265 at 287

(2) 1969 D.C.L.R. p.1