Chang Sanchez, Au Candelaria v. Hin Sum Manpower Co Ltd

DCEC 859 / 2002

IN THE DISTRICT COURT OF THE

HONG KONG SPEICAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. DCEC 859 OF 2002

BETWEEN

Before: Deputy District Judge Tracy Chan in Court

Date of Hearing: 10 January 2005 to 14 January 2005 and 28 January 2005

Date of Further written submission: 8 March 2005

Date of Handing Down Judgment: 16 March 2005

J U D G M E N T

1.The Applicant is the mother of a Mr. Chang Sanchez, Roberto (“the Deceased”). The application herein is made against the employer of the Deceased, Hin Sum Manpower Company Ltd. (“the Respondent”) for compensation under sections 6, 10 and 10A or alternatively sections 9, 10 and 10A of the Employee’s Compensation Ordinance, Cap. 282, Laws of Hong Kong (“the Ordinance”). The Respondent opposes to the application.

2.The Respondent disputes liability; and also quantum under the head of funeral expenses if liability on death of the Deceased is proved. The employment of the Deceased is not disputed. The Respondent however disputes the accident ever happened as alleged, that it caused injury to the Deceased, that such injury arose out of and in the course of the employment and that such injury caused the death of the Deceased.

3.The background of the employment is this. The Deceased was aged 49 at the material time. He was under the employment of the Respondent as an odd job worker working in an open site leased by the Respondent for storage of construction machines and trucks. He was so employed since February 2001. The duties of the Deceased were to make entries of the machines and trucks when they were taken out of and returned to the site before and after use. The business of the Respondent was mainly to lease out these construction machines and trucks for a charge.  The Deceased was remunerated for $14,000 a month.

4.To put the case of the Applicant in a nutshell, by mid-September 2001, the Deceased worked in rainy days when the site was flooded. He was wading through water wearing pair of short boots as he worked. In the course of doing so, some sandstones and debris went into the boots and scratched his right foot causing a wound in his right small toe. As he felt that his small toe was getting very painful and had become swollen, he went to A & E Department of Tseung Kwan O Hospital (“the Hospital”) on 27 September 2001.

5.Upon arrival, he was examined by Dr. Wu who told him that he had to be hospitalized as the situation looked serious. The Deceased then left the Hospital saying that he would come back after he had made arrangement for someone to take over his duties. He came back to the Hospital again on 29 September 2001 and was admitted in the small hours of 30 September 2001.

6.After examination, it was diagnosed that a gangrene had developed in his right forefoot. After some treatment with antibiotics, it was decided that a below knee amputation had to be carried out and had eventually been carried out on 14 October 2001. Around the same time of the operation, it was also discovered that he had liver cancer spread from an unknown primary source. It appeared that he recovered well in his stump wound after the operation (D60). He was discharged by the Orthopedic Department on 22 October 2001 and was transferred to the Surgical ward for further management on the condition in his liver. 

7.On the same day of admission to the Surgical ward, it was found that he had shortness of breath, cough, sputum, pain in the stump wound, low grade fever etc. (D69). On the next day, 23 October, it was found that his stump wound was oozing and the Deceased complained of pain in it, fever went down at times. The low grade fever was on and off in the following days. The stump wound was still painful and a mild gap was found on 28 October 2001.  It was also suspected that a deep vain thrombosis had developed in his right lower limb (D79). There was a swelling in his right thigh. It was confirmed that he had a deep vain thrombosis on 1 November 2001. As the stump wound was not heeling well, a revision amputation was planned (D87). Thigh and stump swelling persisted. The Deceased complained of scrotal swelling on 4 November 2001.

8.On 7 November, it was found that the stump wound deteriorated and the Orthopedic Department asked to take over the Deceased if his condition was stable for the stump wound to be followed up. On 9 November 2001, a fierce bacteria was found in the stump wound. Scrotal swelling had persisted for 2 weeks by then and was found to have deteriorated by 10 November 2001 (D101). The situation with the scrotal swelling improved with fever subsided on 11 November 2001. Lower limb swelling was seen on 13 November (D108). On 14 November 2001 there was oedema over left forefoot.  On 15 November, the Deceased complained of pain and discomfort in scrotal area again but the oedema in the foot decreased slightly (D111). There was a general oedema on 17 November 2001 with no fever (D114). Swelling in scrotum and left lower limb deteriorated on 18 November 2001. Stump wound was still oozing fluid with odor. By evening of 19 November 2001, the swelling in the scrotal area and over left foot deteriorated (D117). There was generalized oedema from 20 November 2001 onwards. From 21 November onwards, he complained of shortness of breath. His condition was described to be ill on 22 November 2001 (D121). Suction was performed and a large amount of yellowish sputum was retrieved. The Deceased became unconscious in the afternoon of the same day. He had cardiac arrest later on the same day and was certified dead at 5:00 pm. The cause of death stated in the death certificate is carcinomatosis (C22).

9.It is the Applicant’s case that there were symptoms of the infection in the stump wound and therefore the infection in the stump wound was one of the causes of his death.  Further, the condition of his right foot and the operation on it had contributed to the deep vain thrombosis which might have caused his death.

10.The Applicant’s case is established by evidence of medical staff including their records, and also evidence of Mr. Ruben Ong, the step-brother.  A statement had been made by the Deceased before his death and it was produced as part of the evidence.

Accident

11.The first issue I have to decide is whether there was an accident. The relevant part of evidence is now extracted below.

Medical records

12.The relevant parts of the medical records are listed below in chronological order.

(i)	D8 record of Accident & Emergency Department dated 27 September 2001
	Under “Presenting Symptoms” it states:
	R foot pain + & swelling + x 4/7, R 5th toe wound infection x 5/7.
	Under “Significant Finding” it states
	“ P/C (Presenting complaint) Painful Swelling R small toe & foot 5/7hx (history) gradually increase in pain, hx (history) of trauma? Initially a small wound, previous well, no DM.”
	The case was classified by the doctor as non traumatic under A&E Statistics.
(ii)	D22 History Sheet (undated but should have be made on 30 September 2001 upon admission according to Dr. Ngai)
	Under the heading of History of Present Illness, it states:
	“Rt 5th toe swelling & erythema x 6 day; Previous trauma, abrasion; fever; chilled and rigor”
(iii)	D294 Nursing Kardex (B) (30 September 2001)
	“wound Rt 5th toe”
(iv)	D131 Consultation Record a request from Orthopedic to medical (8 October 2001)
	“Known history of Reynaud Phenomenon….
	Admitted because R forefoot peripheral cyanosis, cold temperature, R little toe ulcer
	Persistent R forefoot pain”
(v)	D46 Clinical Management Sheet (8 October 2001)
	“Consult for Reynaud’s Phenomenon…..
	1 year ago L ring finger and little finger cyanosis suddenly….
	This time R forefoot cyanosis, painful, also suddenly after exposure to cold rain water …
	Other foot not affected”
(vi)	D130 Consultation Record a request from Orthopedic to surgical (undated, but probably on 9 October 2001 as recorded in D48)
	“He exposed to heavy rain water for >20 days in construction site”
(vii)	D49 Clinical Management sheet (9 October 2001) (a reply from surgical to request at (vi) above)
	“c/o (complained of): pain & cyanosis of R foot & R toes x 2/52 after exposure to cold water in construction site.”
(viii)	D52 Clinical Management sheet (12 October 2001)
	“ D/W (Discussed with) patient if he is IOD (injured on duty), need to confirm with his employer.”
(ix)	D57 Clinical Management sheet (16 October 2001)
	“ Pt (patient) request for D.A. (disability allowance) & employee compensation information”
(x)	D18 Discharge Summary (22 October 2001)
	“History of working in heavy raining days with feet immersed in rain water for 20 days.”
(xi)	D3 Medical Report (29 January 2002)
	“The history and symptoms:
	History of painful right foot and toes for five days. Patient was not certain whether there was any injury to his foot…”

13.Evidence of witnesses given in court for both parties including documentary evidence of the Deceased on the issue of accident is extracted below: -

(i)	Dr. Wu
13.1	Dr. Wu, the doctor at the A & E Department in the Hospital who saw the Deceased on 27 and 29 September 2001 was called to be cross-examined by the Respondent. He was the author of the medical report (D3) and some of the medical records (D8-D15).
13.2	During the trial he is referred to D8 (paragraph 12(i) above) and says that the information of “wound infection” filled in under “Presenting Symptoms” was written by a nurse. He says it was unlikely that the nurse had examined the Deceased. The information was put down on the basis of what he/she had been told by the Deceased.   He says further that the information of “initially a small wound” under  “Significant Finding” was filled in by he himself on the basis of his examination and what he was told by the Deceased. He says he had classified the case as non-traumatic because he had specifically asked the Deceased whether there was trauma leading to this but the Deceased was not sure at that time. He admits that he did not ask about exposure to cold water as it was not that cold in Hong Kong.
13.3	He saw the Deceased again on 29 September. In the box of diagnosis on D15, he put down “Infected R toe with gangrene”. He says that this did not necessarily mean that there was a wound. He says that if he had seen an obvious wound, he would have put it down. He says that if the gangrene was caused by the infection of a small wound, it would take a few days for the gangrene to develop to a condition similar to that he saw on the Deceased. He agrees that infection would seldom have caused gangrene but peripheral vascular decease would have done so. He says that on 27 September 2001 when he first saw the Deceased, he was not sure whether it was an infection or an ischaemic change of the toe. As he had written down infected right toe with gangrene on 29 September 2001, infection was his preliminary diagnosis at the time, and he agrees that certain infection would also cause gangrene.
(ii)	Dr. Ngai
13.4	Dr. Ngai was also called by the Respondent for cross-examination. Dr. Ngai is an orthopedic in the Hospital and was in charge of the Deceased between 31 September 2001 and 22 October 2001. He is the author of the Medical Report at D2 and the Discharge Summary at D18.
13.5	He says that when he saw the Deceased, he did not see any fresh wound in the foot but it might have been masked by the gangrenous change. As to the record at D52 made on 12 October 2001 saying that “D/W (discussed with) patient if he is IOD (Injured on Duty). Need to confirm with his employer”, Dr. Ngai says that the Deceased was informed of the plan for amputation, the Deceased then complained about something and said that he was injured on duty. Dr. Ngai asked him how, he said working in rainy days.  He says he put down “Need to confirm with his employer” because the Deceased said he had not yet reported to his employer so he asked him to do so.
(iii)	Mr. Ruben Ong
13.6	He is step-brother of the Deceased. He says that he paid a visit to the Deceased at the Hospital in October 2001 after his amputation. On that occasion, the Deceased told him that about a month prior to that date, the construction site in which he worked was flooded. Despite wearing boots at work, water together with some sandstone and debris immersed into his boots causing abrasion to his right foot.  A hospital social worker visited the Deceased and advised him to report the matter to the Labour Department. The Deceased then wrote a statement for this purpose on 2 November 2001.
(iv)	Mr. Lee Shing Kwan
13.7	He was the employer of the Deceased at the material time. He gives evidence for the Respondent. He says that on or about 28 September morning, the Deceased called him and asked for sick leave to consult a doctor as there was a pain in his foot. He asked for the reason and whether it was caused by an injury sustained at work. The Deceased said he did not know.  Then in the morning on or about 16 October 2001 Mr. Lee went to the Hospital to see the Deceased. He asked why his condition was so severe. He said that the doctor told him that the bacteria had got into his bone. Then in the morning on or about 2 November 2001, the Deceased telephoned him and asked whether he could assist him in reporting the work injury. He refused his request saying that all along he said it was not work injury and if it was work injury why he did not tell him how and when he got injured.
(v)	The Deceased: His Notification of accident to the Labour Department (undated but the covering sheet was dated 2 November 2001) B5
13.8	This is Statement made by the Deceased to the Labour Department for the purpose of applying for employees’ compensation. In the statement the Decease stated that
	“The accident causing injury at work happened on 24 September 2001. My workplace was an open space which was temporarily rented by my company for the storage of equipment…….  Since it was a piece of low land next to the construction site TK 53 in Tseung Kwan O, there was continual flooding in rainy season. What caused this accident was that there were heavy rain one after another in September, all the machines and the container for me to rest in the construction site were soaked in water up to one’s thigh, I could only work by wading through water with short safety boots. On 24 September, I found that the last toe was injured by the abrasion of sand and stones in water. The last toe turned a bit bluish black after infection. It was so painful that I could hardly walk….”

14.From evidence above, the Deceased had mentioned a wound and infection on his foot on 27 September 2001 (paragraph 12(i) above) when he first visited the Hospital and an abrasion on 29 September 2001 (paragraph 12(ii) above) when he returned to the Hospital again. I note of course that he could not tell the cause for the wound or abrasion on these two occasions.

15.Mrs. Chan for the Respondent in her closing submission says that there could not have been an accident happened the way as claimed by the Deceased for if that had really happened, there was no reason why the Deceased had failed to give an account to Dr. Wu when he was attended by him.

16.Truly, this is the situation the court must look into closely especially the Deceased did not come to court to explain what had happened. From the evidence, I would say that it is unsatisfactory that the Deceased could not tell the reason why he had this swollen and painful foot, but obviously he did mention a wound or an abrasion to the medical staff at the A & E Department.  More importantly, all along, from the first day he sought treatment until his death, he gave one consistent version. He never gave a different version to explain the wound. He said he was not sure initially, but thereafter his saying was consistently that it was due to his having to work in rainy days.

17.Taking into consideration the way he got the wound as alleged by him, one could understand why he said he was not sure about the cause in the beginning. He said that the abrasion was caused by sandstone and debris washed into his boots. The rubbing and brushing of such sandstones and debris against his foot inside the boots was not traumatic like a chop in the finger or a fall from height. The rubbing and brushing could easily escape attention of a person unless it caused sharp pain at the time.  And to a layman, for an abrasion to develop into a gangrene might be beyond his understanding. His saying to Mr. Lee Shing Kwan reflected this. According to Mr. Lee Shing Kwan the Deceased told him that at the time he had never thought that such a trivial matter would become like this. This echoed his saying to Dr. Wu that he was not sure about the cause of the wound. If there was another reason known to him at the time, it would be illogical if he wanted to hide that from the doctors.

18.I say that there is no reason for him to lie because first he was seeking treatment from the medical staff and secondly he did not contemplate claiming employee’s compensation when he said that he had the situation because he worked in rainy days. This was a time on or about 9 October 2001 (paragraph 12(vi) above).  There was no discussion about injury on duty until 12 October 2001 (paragraph 12(viii) above) and the Deceased indicated for the first time he wanted to make a claim under the Ordinance on 16 October 2001 (D57).

19.Mrs. Chan says in her closing submission that the Deceased had no contemplation in claiming employee’s compensation because he knew that the injury, if any, was not work related. I cannot agree with this. The other possibility could well be that he was not certain about his condition and how bad it could be initially. Dr. Ngai said that on 12 October 2001 when he talked about the plan of amputation and he start to complain about something. With no intention of showing disrespect, I do not accept Dr. Ngai’s saying that it was a routine to ask whether it was injury on duty when a patient was admitted into his ward. From the records in front of me, the first time the Deceased mentioned that it was an injury on duty was on 12 October 2001, there was no record showing earlier discussion in this regard.

20.Mrs. Chan raises doubt on the credibility of the Deceased. She relies on the photographs produced by Mr. Lee. She says that the photographs show that the site was wide open with ditches on the sides and by no means that it could be flooded with water coming up to a person’s thigh as alleged by the Deceased. I have seen the photographs but find that they were only taken recently, years after the incident. I cannot accept that they reflect the situation of the site at the material time. The statement of the Deceased at B5, on the other hand, did give some particulars to explain the flood. He said that: -

“Since it was a piece of lowland to the construction site TK53 in Tseung Kwan O, there was continual flooding in rainy seasons. What caused this accident was that there was heavy rain one after another in September, all the machines and the container for me to rest in the construction site were soaked in water up to one’s thigh.”

I do not believe that he had fabricated this.

21.Mrs. Chan also says that if the machines were soaked in the water, someone would have informed Mr. Lee. As no one informed Mr. Lee, there was no flood. Further Mr. Lee said the machines would be of no use after being soaked in water. I do not accept such saying. The trucks and machines were stored in open area and were to be used in construction sites (most of them are open area), they could certainly not be easily damaged by water. His such saying would not cast doubt on the credibility of the Deceased’s assertion that there was a flood.

22.Mrs. Chan further says that there were inconsistencies in the Deceased’s version on the duration of flood. He said over 20 days to Dr. Ngai and 2 weeks in another occasion. I do not see this a material inconsistency to undermine the credibility of the Deceased.

23.After hearing the witness for the Respondent, Mr. Lee, I do not find that he has told the court the whole truth. Mr. Lee says that the deceased had specifically said that the injury was not job-related in his witness statement (B23). In court he tells the court that the Deceased told him that he did not know whether the injury was sustained at work. Moreover, as I have set out in paragraph 18 above, the Deceased first mentioned cold water on 8 October 2001 and again on the following day, and it was on 16 October 2001 that he discussed about employees compensation with Dr. Ngai, I see no reason why he would have informed Mr. Lee about this on 2 November 2001.  I accept what the Deceased had said in his Notification of accident (B6) that he had already discussed this with Mr. Lee when he learned that he was to have an amputation in his right leg. From D51, the Deceased learned about this on 11 October 2001 (although there had been such discussion on 9 and 10 October, this seems to be a most serious discussion) and he was asked by Dr. Ngai to confirm with his employer on 12 October 2001. I find it logical that the Deceased followed the advice of Dr. Ngai and on 12 October 2001 had a talk with Mr. Lee on this. Further the amputation took place on 14 October 2001. I therefore find that there was discussion between the Deceased and Mr. Lee about employees’ compensation between 12 October and 14 October 2001. I reject Mr. Lee’s evidence.

Definition of accident

24.A classical definition of an accident has been laid down in Fenton v. J. Thorley & Co. Ltd. [1903] AC 443 and such definition has been followed in many Hong Kong Case.  In Fenton v. J. Thorley & Co. Ltd., an accident is “any unexpected personal injury, …… any untoward event which is not expected or designed.”  An accident is said to include the trivial or unsensational, as well as things which cause injury in at stealthy manner [paragraph 103 of Butterworths’ Hong Kong Personal Injury Service].

25.To conclude, from evidence before me I am satisfied on balance of probabilities that there was an accident as alleged by the Deceased, i.e., that the construction site was flooded for about 20 days and he had to work wading through water and as a result his foot sustained injury caused by debris and sandstones.  Having the feet soaked in water for long time had aggravated the situation as it would make a wound more difficult to heal by itself.

26.The next issue is to determine whether the injury arose out of and in the course of the employment.

27.As I have accepted the statement made by the Deceased in the Notification of accident to the Labour Department set out in paragraph 13.8 above and what he had told the doctors in finding that there was an accident, I also find as he had said that the injury was by accident arising out of and in the course of his employment.  The passage citied in paragraph 13.8 above is also relevant.                     

28.Having found that there was an accident and the injury was caused by the accident and that it arose out of and in the course of employment, I would now turn to assessment of compensation.

Assessment of Compensation

29.The claim is made under section 6 because of his death or alternatively under s. 9 if the court finds that the injury did not cause the death.

Compensation under section 6

30.There is no doubt that the injury had caused the amputation. Mrs Chan however submits that the death of the Deceased was not caused by the injury. She submits that the death might have been caused by a pre-exiting disposition such as his liver cancer or an infection in his chest.

31.Ms Pinto submits that both experts, Dr. Leung called by the Respondent and Dr. Beh called by the Applicant agree that the liver cancer is unlikely to be a direct cause of the death despite of the fact that it was so stated in the Death Certificate. It is Dr. Beh’s opinion that the death of the deceased flowed from the onset of gangrene and the surgical operation. The stump wound continued to be infected after the operation and did not heal well. Dr. Leung’s opinion is that the direct cause of death was a complication of deep vain thrombosis; it was either pulmonary embolism or internal bleeding. He further says that the deep vain thrombosis was likely to be due to his disseminated cancer. He agrees that the infection in the stump wound was a contributory factor to the death but it is unlikely to be the cause of death. He says it was a contributory factor because it was present at the point when he died. Dr. Beh says that the deep vain thrombosis was likely to be caused by lower limb infection, prolonged immobility and dehydration.

32.The fact remains that there was no post-mortem done to show exactly what the cause of death was. Before the court there are conflicting expert opinions. Neither Dr. Leung nor Dr. Beh could give an opinion supported by clear evidence on the cause of the death.  Their opinions were made on basis of inferences drawn from medical findings.  The Deceased in this case did not die instantly at work or shortly after the accident. He did not die of a cause directly related to the accident. After suffering a small injury in his small toe which was ignored by him and his employer at the beginning, he died 52 days after he was admitted into hospital first to cure his foot condition and remained there to cure his liver cancer. I note that his foot condition had not been healed until his death, but the symptoms he had just before he died was rather unrelated to his foot condition. He had shortness of breath, which he had that the first day he was transferred from Orthopedic to Surgical ward on 22 October 2001, at that time his stump wound was healing well. There was a large amount of sputum retrieved from his respiratory system just before he died, he had at that time deep vain thrombosis for an unknown cause and liver cancer from an unknown source. With all these complications before the court, and without any conclusive opinions from experts (although I understand that attempts to reach certainty in medicine is impossible sometimes), I am not satisfied on balance of probabilities that the injury had substantially contributed to the death of the Deceased Lee Kin Kai v. Ocean Tramping Co. Ltd. [1991] 2 HKLR 232 at 235J to 236A. The claim under sections 6 (1) and 6 (5) is therefore dismissed.

Compensation under section 9

33.The Applicant appeals from the assessment of the board. The Certificate of Assessment specified 65% as loss of earning capacity. As the Applicant did not give evidence and Ms. Pinto confirms that the Applicant’s witness statement would not be relied on, there is nothing for me to see if there are special circumstances to justify application of section 9(1A). The appeal is therefore dismissed.

34.Mrs. Chan submits that the Deceased had delayed treatment and had continued to smoke after being warned not to, so these amounted to serious and willful misconduct under section 5(3) of the Ordinance. I cannot agree with that. The misconduct referred to by the section is misconduct prior to or at the time of accident which caused the injury. Further more, the only evidence on his delaying medical treatment was because he had to make work arrangement, that cannot be serious and willful misconduct. Further there was no evidence to show how much he had smoked in the Hospital and how much it had contributed to his injury or his death.

35.Assessment under section 9 is as follows:

$14000 x 72 months x 65% = $655,200.00

Compensation under section 10

36.There is no dispute on the sum to be awarded under this head. The award under this head is therefore $8,213.

Compensation under section 10A

37.There is no dispute on the sum to be awarded under medical expenses. The award in that regard is therefore $3,604.

Conclusion:

38.To summarise, the quantum of the Applicant’s claim is as follows:

Compensation under section 9	$655,200.00
Compensation under section 10	$8,213.00
Compensation under section 10A	$3,604.00
=	$666,817.00

39.There should be interest on the awarded sum.  I follow the approach of H.H. Judge Lok in Lai King Wai and Kwai Chuen Container Service Company Limited, unreported, DCEC 805 / 2002 in awarding interest at half judgment rate from day of accident to judgment and thereafter at judgment rate. I also make an order nisi that the Applicant is awarded costs of this action, and such costs is to be taxed if not agreed, and the Applicant’s own costs is to be taxed in accordance with the Legal Aid Regulations.  The order nisi is to be made absolute after the expiration of 14 days from the date of the handing down of this judgment.

Ms Josephine Puito instructed by Legal Aid Department for Applicant.

Mrs Dora Chan instructed by M/s. Ng & Co. for Respondent.