Ngan Chiu Hin v. Tung Yu Lok
Read the full judgment text of DCEC 341/2003 on BabelCite. This District Court judgment.
1. This is an application for employees’ compensation under section 9, 10 & 10A of the Employees’ Compensation Ordinance.
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DCEC 341/2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 341 OF 2003 -------------------- IN THE MATTER OF AN APPLICATION BETWEEN
-------------------- Coram : Her Honour Judge C.B. Chan in Court Dates of Trial : 16th, 17th and 20th December 2004 Date of Handing Down Judgment : 7th February 2005 JUDGMENT 1.This is an application for employees’ compensation under section 9, 10 & 10A of the Employees’ Compensation Ordinance. Background 2.The Applicant was employed at the material time by the Respondent as a shop assistant, butcher, delivery worker in the Respondent’s meat shop known as “Yee Yau Loong” situated at Shop 25, Yau Oi Estate Market, Tsuen Wan, New Territories, Hong Kong (“the shop”). 3.The Applicant’s case is that on 3 April 2001, he was working in the course of his employment in the shop. At that time, he was picking up a box of cold meat of around 25 kg. from the refrigerator by pulling its fastening plastic strip. In the course of doing so, the belt suddenly broke. As a result, he slipped and fell onto the floor. 4.Subsequently, the Applicant had a sudden onset of symptoms including headache, dizziness and vomiting. Upon admission to Tuen Mun Hospital, brain scan was performed and revealed that the Applicant had subarachnoid haemorrhage. Cerebral angiogram was performed on him and found to have left anterior communicating artery aneurysm. Craniotomy and clipping of aneurysm was done on the next day. According to the hospital reports, the Applicant’s recovery was good except poor cognitive function, deficit in short term memory and calculation. He also had poor right eye vision due to vitreous haemorrhage. The Issues 5.The only issues in this trial are:
The Evidence 6.The Applicant did not give evidence. Neither did he file any witness statement in the present proceedings. He relies on the evidence of Mr. So Ling his co-worker, a shop assistant of the Respondent who witnessed what happened. The Respondent himself gave evidence and he calls on Ms. Hui Wei Ni to give evidence on his behalf. 7.The Applicant was an employee of the Respondent for a period of over 10 years when the Applicant suffered the injury. Evidence of Mr. So (AW1) 8.According to Mr. So, he and the Applicant handled the cold meat of the shop. Once frozen meat was delivered to the shop, they would put it into the freezers of the shop. The frozen meat was delivered to the shop in boxes. The heaviest ones were around 27 kgs. There were plastic strips fastening the boxes. They would rely on the strips to pull out the boxes from the freezers. It was an easy job unless the box was squeezed in between other boxes inside the freezer. 9.Sometimes he had to use a crowbar to loosen the boxes from one another to make it easier pull the box from the freezer. In the more than 10 years of work he had with the Respondent, there were 2 to 3 times that the plastic strip broke. 10.Every morning, after he returned to the shop with the Applicant, they would first put used carton box paper onto the ground to make the floor non slippery. Then they would take out the cold stuff from the freezer to the counter for sale. 11.On 3rd April 2001, the Applicant went together with him to open the shop at around 8.00 a.m. in the morning. They put the carton box papers onto the ground as usual. After finishing the taking of the frozen stuff from the freezer, he took orders from customers and recorded them in a book. He then started slicing ham. Suddenly, he heard a “Pak” sound which sounded like the breaking of a plastic strip followed by noise created by objects falling onto the ground. When he turned his head, he found the Applicant sitting on the floor facing the freezers with his back to the counter. A refrigerator door was open. 12.He asked the Applicant what happened. The Applicant replied that when he was pulling a box of brisket from the freezer, the plastic strip broke. He lost his balance and fell onto the floor. He noticed that the Applicant was in a little bit of agony. The Applicant said that he was suffering from severe headache. Mr. So asked the Applicant if he could cope. He said “Yes”. Later the Applicant said he suffered headache again and he was in the course of vomiting. 13.Having seen that, Mr. So asked somebody to keep an eye on the Applicant, he went to fetch the Respondent who was having tea at cooked food stall. 14.Mr. So told the Respondent of the accident. He told the Respondent that when the Applicant was pulling the box from out of the fridge, the plastic strip broke. Having told the Respondent of the accident, Mr. So returned to the shop. Upon his arrival at the shop the Applicant stated that he suffered from dizziness and he vomited. Seeing that he was in a dizzy state and vomiting, Mr. So asked him if he could put up with it. If not he would call for an ambulance. Eventually an ambulance arrived and transported the Applicant to hospital. Neither the Respondent nor Mr. So accompanied the Applicant to the hospital. Evidence of the Respondent (RW1) 15.He stated that on 3rd April 2001, he was having tea in the neighbourhood. At around 8:20 a.m. So Ling came and said to him that when the Applicant was pulling the frozen meat, he fell and he felt uncomfortable. He immediately walked back. When he got back, the Applicant was seated. Later the ambulance came. He did not know how the Applicant fell. He relied on Mr. So. He stated that although he signed the Form 2, most of the information was provided by Mr. So. 16.Subsequently after about 1 to 2 years later, he heard about what happened from Ms. Hui Wei Ni (“Ms. Hui”)after he had received a letter from the Labour Department related to the Applicant’s Employee’s Compensation claim. The content of the letter stated that it was not the case of an injury sustained in the course of work. He then informed his insurance agent. He subsequently received three letters from the Labour Department on this issue. He informed Ms. Hui and he also told her that initially it was classified as an employee’s compensation case now the Labour Department said it was not. He told her that when the accident took place he was not at the scene. Then Ms. Hui told him that on that day she was purchasing chicken in the chicken stall opposite and witnessed what happened. 17.He stated that he subsequently dismissed Mr. So because he undercharged a customer for some meat that was purchased by the customer. This matter was finally resolved at the Labour Tribunal by settlement when he had to pay compensation to Mr. So. Evidence of Hui Wei Ni (RW3) 18.The Respondent called Hui Wei Ni to give evidence. Ms Hui Wei Ni said she saw the incident. Her evidence of the account had a marked difference with that of Mr. So. She said that on the date of the incident, she happened to be buying chicken at the chicken stall at diagonally opposite to the Respondent’s shop. She saw the Applicant placing cardboards on the floor. The Applicant bent his back to perform the task. Before the Applicant finished placing cardboards on the floor, he suddenly squatted down on the floor and vomited. Later he sat down on the floor. He heard So Ling said to the Applicant he would fetch the boss. 19.In the course of her evidence-in-chief it became clear that she saw what happened with the aid of a mirror. This is because her view of the area where the cardboard was laid would have been blocked by the counters at the front of the shop. This came out for the first time in her evidence-in-chief and had not been mentioned in either her witness statements or in her affidavit. She agreed that the mirror was dirty and the shop was dirty. The Applicant was in the space between the counter and the refrigerators. The counter of the shop would have been some 3 feet high and would have blocked the view of the Applicant from where Ms. Hui was. She sought to draw the position of the mirror in the shop and she described it as being hung on a wall and is shielded from view by the metal bar shown on the left of the bottom photo at page 161 of the Bundle of Documents (BD – 2). She said the bottom of the mirror was 3 feet 3 inches off the ground and its top was at the top of the cloth hung alongside the metal bar as seen in the bottom photo of page 161 of BD – 2. She stated that the mirror was about twice the width of a witness table, that is, about 5 ft wide. It was 5 ft high. She agreed that the front counter of the shop where the cooked food was displayed is that shown on the upper photo of page 161 of BD – 2. Behind that is the row of refrigerators. It was in the space between the counter and the refrigerators that the cardboard was laid on the floor by the Applicant that morning. She drew on a plan the relative position of the mirror to the counters, and the position of the woman standing at the front of the counter as shown in the upper photo at page 161 of BD – 2. She marked the position of the woman on the plan with a square and her position she marked with a star. She stated that she was 10 to 12 feet from the woman who was standing in the front of the shop as shown in the upper photo of page 161 of BD – 2. The plan is marked Exh R2. Under cross-examination, she stated that she kept looking at the shop and did not at any time direct her gaze elsewhere. She did not look at the chicken stall when they were slaughtering her chicken. She did not look at other shops. In the course of cross-examination to try to explain how good her view was she stated that she moved outside the front of the chicken stall to avoid flying feathers. She stood on the top of wooden step or platform of the chicken shop next to the one where she bought her chicken. She saw all that was happening with the aid of the mirror. Credibility of Witnesses Credibility of Mr. So 20.I found Mr. So to be a credible witness both from the content of his evidence and from his demeanour and manner. In the course of cross-examination he was questioned rather persistently to push him into supplying details of telephone orders on the day in question that would have been difficult for any person to give after such a long time. He was asked whether he remembered the number of customers who placed orders. He said he could not recall the exact number of customers. He volunteered 6 – 7. When he was asked, “Do you remember 6 – 7?” He answered “It happened so long ago, I can’t remember. Somebody ordered brisket.” He was pushed with a question, “From whom?” He answered, “That client was Shek Lei Pui”. Then “How much?” He answered, “Whenever he ordered brisket, he ordered a box.” He was pushed for more and asked, “What was the name of the client?” He answered, “I call it Shek Lei Pui…” It was after this type of questioning that later after the break he came back to say that he did not remember the name of the client who ordered the brisket and that the Respondent should know as it is in the book which the Respondent had. He stated that during the break he remembered that Shek Lei Pui had closed down his business before this incident. I was satisfied that the reason why Mr. So rectified his evidence was because he wanted to speak the truth. He stated details which he was not sure about under the pressure of cross-examination. I am satisfied that he had all along done his best to tell the truth, and is a truthful witness. 21.The allegation of dishonesty against him by the Respondent who stated that because he was dismissed for undercharging a customer could not be substantiated as there was nothing beyond a mere allegation. Mr. So filed a claim in the Labour Tribunal for long service pay and in the end the matter was settled between Mr. So and the Respondent. 22.The Respondent’s Counsel submitted that Mr. So had no recollection of whether he saw the box of frozen meat after the accident and whether he saw the broken plastic strip on it after he saw the Applicant on the floor. This in my view is not surprising for Mr. So’s focus in the inevitable shock of the moment would have been wholly on the Applicant and his symptoms. Further as the Applicant was seeking to pull the box out of the refrigerator, and the refrigerator door was still open, the box may still have been in the refrigerator when the plastic strip broke and the Applicant fell. Therefore Mr. So’s lack of memory of where the box was or whether he saw the broken plastic strip in my view does not show the lack of credibility of the Applicant’s story. In the reverse, it shows the credibility of Mr. So who did not invent something he was not sure of to make a story sound more complete. Credibility of the Respondent 23.The Respondent did not give any evidence related to the events immediately preceding the symptoms suffered by the Applicant that is inconsistent to that of the Mr. So because he was not at the scene of the incident. But he stated in his evidence in Court that Mr. So came to look for him to inform him of the incident at around 8:20 a.m. and not at 8:30 a.m. However in the Form 2, the Notice of Accident, he confirmed that the accident did occur at 8:30 a.m. Even though he said that Mr. So supplied him the information that was written on the Form 2 and he merely signed it, it seems to me that as he signed it without question he must have agreed to its contents when he signed it. It seems to me that it is unlikely that he would have signed something which was not true. 24.I find that his evidence in relation to the fact that he merely signed Form 2 and the time of the incident was not that stated by Mr. So, I find not credible. I do not accept that part of his evidence, which is inconsistent with that of Mr. So. Credibility of Ms. Hui 25.I found her not credible as she began to change her evidence under cross-examination when the issue as regards whether she had a clear view of the Applicant from where she was standing came into focus. For the first time in evidence she stated that she had a clear view of the incident but not a direct view but that reflected from a mirror hung on the wall. She drew a plan of the position of the mirror. 26.At first she stated that she was about 10 to 12 feet diagonally behind the woman standing at the front counter of the shop. Later she said she was 10 to 12 feet diagonally opposite the front of the shop. She later said she walked up from the front of the chicken stall because she was avoiding the flying feathers. Later she said she stood on something like a wooden platform on the front of the chicken stall next to the chicken stall where she was purchasing her chicken. She was very keen to show that she had a clear view of what happened and started to improve on her evidence. 27.She stated that she had her full attention at the Respondent’s shop the whole time whilst her chicken was being slaughtered and did not divert her gaze to any other shop or to anything else the whole time. It seems strange and unbelievable that she has her whole attention riveted during the moment from the time the Applicant and Mr. So went into the shop until the incident. For at least 20 minutes she had riveted her attention on the Applicant and Mr. So by looking at the mirror. There must have been other distractions in a market in the early morning. Hence her evidence was too contrived, and is not likely to be true. 28.When she was asked to draw the plan, she found it extremely difficult to place on the plan her position and I had the feeling it was not merely a matter of not being able to draw in proportion to the true dimensions. She was keen to put her position on the plan close to the shop so that it would be a position where she would have seen the reflections on the mirror clearly. That was not an easy thing. 29.Having seen the location of the mirror on the plan drawn by Ms. Hui, it seems that only half or less of the width of the mirror extended from the outside edge of the counter. Although it is not presumed that the plan is accurate or to scale, yet the positioning of the mirror could not be wholly wrong. Were the position of the mirror at the place as drawn by her, considering the position where Ms. Hui said she was standing, 10 to 12 feet diagonally behind the woman at the counter shown in the top photo at page 161 of BD – 2, it can hardly be said that Ms. Hui had a clear unobstructed view of where the Applicant was. Particularly as he was moving about as he worked in the corridor between the refrigerator and the counter. 30.The demeanour of Ms Hui in the course of the evidence and her exaggerations and desire to show that she had seen what happened seem to me to be less than honest. I have real doubts as regards her honesty and reliability. 31.I find it highly unlikely that with the type of vantage point from looking at a mirror from that distance at an angle where she has standing it is unlikely that she would have seen the incident. The Applicant was moving the whole time during his work. As she moved about the view of the Applicant reflected from the mirror would not have been unobstructed. Her claim that she saw what had happened and her version of the event could not be believed. 32.Further if she actually saw what she saw, it would have been most unlikely that she kept it to herself for at least 1 to 2 years without informing her boss the Respondent. 33.I therefore do not find the evidence of Ms. Hui Wei Ni either credible or reliable. I do not accept her evidence as true. Finding of Fact 34.I accept the version of facts stated by Mr. So to be true. I do not accept the evidence of Ms. Hui and I do not accept the evidence of the Respondent where his evidence is at variance with that of Mr. So. The 1st Issue 35.The evidence in relation to this came from Mr. So. The Applicant did not give any evidence on this issue. The medical evidence shows that the Applicant has residual dysphasia and cognitive dysfunction (see medical expert report of Dr. Edmund K.W. Woo at page 95 of BD – 2). Dr. Edmund Woo states that in “patients with an expressive dysphasia, words are uttered slowly and laboriously. Speech is sparse, and it has an agrammatical and telegraphic character. The substantive content, however, allows the patient to communicate ideas to some extent. The comprehension of spoken and written language, though normal under many conditions of testing, remains defective and will break down under stringent testing.” (para 4 page 9 of his Report at page 96 of BD – 2). It is therefore not surprising that he was not called to give evidence. 36.Further Dr. Fung and Dr. Woo recorded in their reports that the Applicant cannot recall his injury and initial treatments in the hospitals (see pages 75, 76, 89 of BD – 2). Neither of them doubt that. The hospital report at page 132 of BD – 2 shows that the Applicant was “semi-conscious on arrival” at the Accident & Emergency Department of the hospital. Dr. Woo also said in his medical report at page 90 of BD – 2, that after perusing the hospital reports and records, that the Applicant’s “conscious level did not begin to improve until 4 to 5 days after the accident; although he was conscious, he was unable to express himself”. The only contemporaneous statement of the Applicant was what he told So immediately after he fell at the shop. And So immediately reported to the Respondent. The Applicant was then suffering from serious symptoms. 37.That was why the only evidence was that of Mr. So. Mr. So heard the “Pak” sound, which evoked the sound of the breaking of a plastic strip, he having experienced this 3 to 4 times before. He heard a bump of falling objects. Then he saw the Applicant seated on the floor with legs facing the refrigerator and the refrigerator door open. He then heard what happened from the Applicant. What Mr. So saw and what he heard could substantiate the story of the Applicant. 38.Mr. So’s story of what happened was almost immediately conveyed to the Respondent. The Respondent stated in his evidence that he was told about the accident and the version received by the Respondent is the same as that Mr. So told this Court. I agree with the Applicant’s Counsel that it is not easy for someone like Mr. So to concoct this version of events in such a short space of seconds or minutes in the critical moment of the incident if it did not happen as he stated. Mr. So did not know that the Applicant suffered from a ruptured aneurysm. It is highly unlikely that he would have invented such a story together with the Applicant who was suffering from headache and dizziness at the time. There was simply no time for them to invent the story of how the Applicant fell. I agree with the Applicant’s Counsel that it is highly improbable if not impossible that such a convincing account could have been concocted in the split seconds when this occurred and Mr. So had to act quickly to run to the Respondent to inform him. 39.The Respondent’s Counsel points to the silence on the part of the hospital doctors in their records of the Applicant having suffered a fall before the onset of his symptoms. Dr. Fung commented in his report at para 3 at page 86 of the BD that, “Since Mr. Ngan was drowsy on admission to Tuen Mun Hospital, he would not be able to provide a reliable medical history. Mr. So Ling was a co-worker of Mr. Ngan, working with him at the time of the accident. Mr. So’s information may be a more reliable version of the story.” Further Dr. Fung pointed out that for aneurysm cases, usually doctors do not seek to find out the exact cause leading to the rupture. In any case, the treatment would not be any different. 40.The word “accident” was explained in the speech of Lord Kinnear, after quoting from the speeches of Lord Macnaughten, Lord Shand and Lord Lindley in Fenton v. Thorley & Co. Ltd. in the case of Coe v. Fife Coal Co. Ltd., (1909) 2 B.W.C.C. 8, 13, as follows,
41.In my view, as I have accepted the version of facts stated by Mr. So of the events immediately preceding the symptoms suffered by the Applicant, these facts clearly show that there was an accident as defined in the authority aforesaid. I find therefore that the Applicant in the course of pulling a box of frozen meat from the refrigerator by its plastic strip fell because the strip he was pulling broke. I find that the Applicant had suffered an accident on the 3rd April 2001 arising out of and in the course of employment. The 2nd Issue 42.Medical evidence on this issue comes from Dr. Fung Ching Fai, the medical expert of the Applicant and Dr. Edmond Woo, the medical expert of the Respondent. Evidence of Dr. Fung Ching Fai 43.Dr. Fung’s reports are at pages 74 to 87 of the BD – 2. He was provided with the Applicant’s medical reports namely Patient Progress Report from various departments of Tuen Mun Hospital and also from Alice Ho Miu Ling Nethersole Hospital and Tai Po Hospital. He examined the Applicant on the 26 June 2003. On that occasion the Applicant’s brother accompanied the Applicant during the examination. 44.Dr. Fung had been informed of the sequence of events leading up to the symptoms by the Applicant’s solicitors. This is the sequence of events as told by Mr. So. The Applicant could not recall the details of these events. 45.Dr. Fung is of the opinion that the Applicant’s rupture of the aneurysm had a strong relationship with his fall at work. Dr. Fung recognized in his medical report (see page 79 of BD – 2, para. 3) that the Applicant did not have a significant head injury accounting for the cerebral damage. He also recognized that relationship of head injury leading to rupture remained debatable (see page 79 of BD – 2, para. 5). Nevertheless, he is of the opinion that an aneurysm that is adherent to the dura may be torn due to the shifting movement of the brain against the skull base during a head injury (see page 79 of BD – 2, para. 5). 46.In para 2 of his Supplementary Report 2 at page 86 of BD – 2, he stated that he had regard to the sequence of events, namely, that Mr. Ngan complained of severe headache immediately after the accident. After resting for a short moment, he started to vomit. He stated that this version of history does support rupture of aneurysm being linked with the sequence of events immediately before. He concluded that it is possible that the rupture of aneurysm in Mr. Ngan’s case was caused by the trauma. In his letter dated 14 July 2004, he stated that, “ It is not possible to prove in literature that different kinds of activities precipitate rupture of cerebral aneurysm. However it is very likely that activities causing sudden change of blood pressure, shifting movement of brain and venous engorgement can precipitate rupture.” 47.In court, Dr. Fung gave a very vivid account of how the aneurysm could be ruptured. He said the aneurysm was just like a blown up balloon. The medical record of the hospital, according to Dr. Fung, showed that there was a pseudo-aneurysm making the Applicant’s aneurysm more prone to be torn. When there was a sudden movement of the head, the velocity change would cause the brain to move and the aneurysm would be ruptured. 48.On the other hand Dr. Woo who also had the medical reports and records from Tuen Mun Hospital but did not seem to have taken note of the account of the sequence of events leading to the symptoms as stated by Mr. So, came to the conclusion that the rupture was a naturally-occurring event with no causal relationship to any head trauma at work (see page 102 of BD – 2, para.13). He relies on three reasons for his conclusion. Firstly, the hospital records did not show any accident before the start of the Applicant’s symptoms. He states that the contemporaneous notes from the Emergency Room and the neurosurgical department of the Tuen Mun Hospital clearly indicated that Mr. Ngan’s illness commenced with headache, dizziness and vomiting. He then fell and sustained a laceration to his upper lip. There was no reference to any external injury to the scalp. Relying on hospital records which states that headache, dizziness and vomiting preceded his fall indicated unequivocally that his illness commenced with the spontaneous rupture of his aneurysm, it being followed by his fall. He stated that such a sequence of events militate strongly against head trauma as a causative or precipitating factor towards his subarachnoid hermorrhage. However Dr. Woo had failed to give heed to the sequence of events as stated by Mr. So Ling related to the incident. He merely referred to the facts referred to in the medical records. As the Applicant was semi-conscious on arrival, it is not surprising that there was no record of the facts prior to the symptoms of the rupture of the aneurysm because the Applicant was not able to state them. Hence the basis for this reason for his conclusion is not reliable. 49.Secondly Dr. Woo relies on medical literature referred to at pages 11, 12 and 13 of his report. It seems that the literature quoted at para 10 and 11 of his report refer to the proof of the causal link between head injury to the rupture of aneurysm in criminal proceedings. The standard of proof to establish causal link in criminal prosecution is much higher than the standard of proof required by the court in civil proceedings. It would seem that the literature cited is not helpful to this present issue where we are faced with establishing a causal link in civil proceedings. 50.Dr. Woo made reference in paragraph 11 of his report at page 100-101 of the BD – 2 of an extract taken out from the article annexed to his report at pages 119-120 of BD – 2. This article shows that in the surveyed cases of rupture of aneurysm, more than 50% of the cases were preceded by relatively recent altercation and assault. The author stated that “an association between the incident and the rupture could not be firmly established”. From the context of the passage, it seems that the reason why the cause of death in all those cases was ruled as natural, was because the higher criminal standard of proof of beyond reasonable doubt was applied. It seems to me that were the civil standard of proof applied, the resulting conclusion might well have been different. 51.The Applicant’s Counsel submitted that the cited literatures show that there would have to be very clear and certain evidence before the medical profession would say that there was causal link. It seems to me to be the case. Dr. Woo agreed to this when cross-examined by the Applicant’s Counsel. Dr. Woo further agreed that he was adopting this high standard in forming his opinion. 52.The Applicant’s Counsel cited Lee Kin Kai v. Ocean Tramping Co. Ltd. [1001] 2 HKLR where the Court of Appeal said “a judge when considering causation is not only entitled, he is bound, to use his common sense, to approach the question in the same way as would a juror”. The standard of proof to be applied by a judge in cases such as this is clearly not the standard of proof applied by Dr. Woo. 53.It seems that the third reason given by Dr. Woo for his opinion at para 5 of page 126 is that the operation record shows that during the operation, no skull or brain injury was identified. Dr. Fung stated in his evidence that this is not a case where there is injury caused by a heavy blow to the head that could cause bruising in the skull or brain. It is the type of aneurysm caused by a sudden movement of the brain backwards, involving a velocity or sudden change of velocity, which could cause the brain to move against the skull bone and cause the aneurysm to tear. 54.In reply to cross-examination that the aneurysm is found in the Circle of Willis, in the middle of the brain, its location being well cushioned by the brain, Dr. Fung stated that the aneurysm is at the base of the brain situated at the base of the skull. It is well known that aneurysm of this type could stick to the surface of the skull bone. When there is a sudden movement of the brain backwards, the activity involving a velocity or sudden change of velocity could cause the brain to move against the skull bone first and the brain would move forward and cause a tear in the aneurysm. 55.Between the opinions of the two experts I find that the opinion of Dr. Fung is to be preferred. He has weighed up the full facts of the accident as stated by Mr. So. He gave good reasons as to why there was no mention of a prior accident in the medical records as he found references in the records, which show that the Applicant was semi-conscious upon arrival in the hospital. Rightly, he pointed out that medical doctors in the Accident and Emergency section of hospitals are not likely to enquire about prior accidents when treating patients with aneurysm. Dr. Woo on the other hand came to his own finding that there was no accident preceding the symptoms largely based on the fact that there was no mention of an industrial accident in the medical records. In so doing his opinion was based on his finding that there was no accident. As I had come to the conclusion that there was an accident, and causation is a matter for the judge not for the medical expert, his opinion is not based on the full facts as found by me. 56.Dr. Woo’s opinion relied on medical literature that applied a far more stringent standard of proof than that applied in a civil action. I find that Dr. Fung on the other hand was open to the evidence in this case and he was also well aware of the reports from medical literature. He did not ignore the letter. 57.I therefore accept the opinion of Dr. Fung as against the medical opinion of Dr. Woo. The Relevant Law 58.The principles of the law in relation to causation of the accident in employees’ compensation are not in dispute. Both parties cite the test formulated by Lord Loreburn, L.C., in Clover & Clayton & Co. Ltd. v. Hughes. In that case, a workman suffering from serious aneurism was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. The county court judge found upon conflicting evidence that death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal. The test is formulated by Lord Loreburn in his judgment and is here stated as follows:
59.The Applicant’s Counsel refer to the passage in Wilson v. Chatterton, [1946] 39 BWCC 39, at 44, it was said at page 44:
60.The above two cases show that in considering cases where there was a pre-existing condition, the employer cannot escape liability by showing that some factor such as disease, is a pre-disposing or contributory cause of the injury, he must show that it is the sole cause. 61.In considering the medical opinion of the experts in this case, the authority referred to by the Applicant’s Counsel in Lee Kin-kai v. Ocean Tramping Co. Ltd. t/a Ocean Tramping Workshop is extremely helpful. In that case, the Court of Appeal held that causation is essentially a matter for the judge not for the doctors. It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it. The Court of Appeal also pointed out that the law and medicine apply quite different standards. In law, there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient, it needs not be shown to be the sole cause. On the other hand, in the doctors’ practice, they look for “clinical cause”, proof certainly beyond reasonable doubt and perhaps beyond any doubt. The Court of Appeal also held that when considering causation, a judge is not only entitled, he is bound, to use his common sense, to approach the question in the same way as would a juror. 62.Applying the common sense approach to the question of causation, I find that the accident did not come from the disease alone, so that whatever the Applicant had been doing the rupture of the aneurysm would probably have happened all the same. In effect, I find that the accident caused the Applicant’s pre-existing aneurysm to burst or rupture thus causing him subarachnoid haemorrhage and his resulting disabilities. 63.Having come to the aforesaid finding, I find on the balance of probabilities that the Applicant has established liability against the Respondent. Quantum 64.This has been agreed at $699,796.00 together with interest at half judgment rate from the date of accident to the date of judgment. 65.I therefore grant the following: Judgment for the Applicant against the Respondent in the sum of $699,796.00 together with interest at half judgment rate from the date of accident to the date of judgment and thereafter at judgment rate until payment. I grant an order nisi for costs of the action to the Applicant to be taxed if not agreed together with Certificate for Counsel. The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.
Representation : Mr. Daniel K.K. Chan instructed by Messrs T.S. Tong & Co. assigned by DLA for the Applicant. Mr. Wong Chi Kwong instructed by Messrs Waller Ma Huang & Yeung for the Respondent. |