Wong Yuet Yung v. Wah Fung Hong Gas Engineering Co Ltd

DCEC 1315/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO.1315 OF 2003

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

BETWEEN

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

Coram  :  Deputy District Judge S. T. Poon in Court

Date  of Hearing  :  4^th – 5^th January 2007 & 9^th January 2007

Date of Delivery of Judgment  : 15^th January 2007

______________________

J U D G M E N T

______________________

Introduction 

1.The Applicant suffered cerebral haemorrhage (“the stroke”) when she was on her way back to the shop where she was working after going to toilet.  As a result, movement of her right limbs and her ability to speak were impaired.  It was the opinion of the neurological experts of both parties that the Applicant can unlikely be gainfully employed in future.

2.The Respondent employed the Applicant as a clerk in its shop in Sham Shui Po.  The toilet in question was located at the back street leading from the main street in which the Respondent’s shop was situated.  This toilet was the only one available for use of the staff of the shop and the one normally used by them. 

3.According to the Applicant, when she opened an iron gate and was exiting from the toilet to the back street, a jet of water suddenly hit at her feet.  She saw some cleansing workers of the Food and Environmental Hygiene Department (“the Department”) who were then washing the street with a water hose.  She was terrified and as a result she suffered the stroke. 

4.Liability was under dispute.  The Respondent denied an accident had happened and further denied the stroke was caused by any accident.  The Respondent said the injuries of the Applicant were not arising out of the employment.

5.Dr. David Chin, the neurological expert retained by the Applicant, opined that the Applicant was frightened and her blood pressure suddenly shot up that caused the stroke.

6.On the other hand, Dr. Yu Yuk Ling, the neurological expert retained by the Respondent, opined that there is no medical evidence to suggest that the stroke was caused by the alleged accident.  The cause was probably hypertension and the stroke would have occurred whatever she was doing at the time.   

7.The Respondent also called 3 witnesses from the Department saying that they did not wash the back street at the relevant time and no one was hit while they were washing the main street.

8.Mr. Sakhrani, counsel for the Respondent, in his submission indicated to the court that there is little dispute to the fact that the accident, if any, was happened in the course of the Applicant’s employment.

9.Section 5(1) of the Employees’ Compensation Ordinance (“the Ordinance”) reads, inter alia, that:-

“… if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”

10.“[T]his section requires a causal connection first, between the employment and the accident (so that the accident arises “out of” the employment) and between the accident and the injury suffered by the employee: the accident must cause the injury.”  (LKK Trans Ltd v Wong Hoi Chung [2006] 1 HKLRD 980 at p.987G-I per Ribeiro PJ)

11.The issues are thus, as follows :-

(a)  whether the Applicant was hit by water as alleged;

(b) whether the Applicant was frightened;

(c)  whether there was an accident;

(d) whether the accident caused the Applicant’s stroke; and

(e)  whether the Applicant’s injury was arising out of her employment.

Factual evidence

12.The Applicant testified at the witness box.  Due to her physical conditions, she required several breaks in the course of her giving evidence.  Although there was not much difficulty in her understanding counsel’s questions, it appeared that she had some difficulties in expressing herself on occasions and manifested her impatience to the questioning.

13.The Applicant gave evidence that she went to the toilet at about 11:00 a.m. on 11^th May 2002.  She was then 52 years old.  After finished using the toilet she exited to the back street through an iron gate.  The iron gate was, as depicted by photographs shown to the court, approximately 10 feet from the junction of the back street to the main street (Boundary Street).  At the time when she had one of her feet stepped outside of the gate, she was shot by a jet of water that made her foot wet. 

14.Countering the evidence of the Applicant, the Respondent called the staff members of the Department on duty that day to give evidence.  They all testified that they had no instruction to wash the back street on that day and they did not shoot at anybody while washing the main street.  Working schedule produced showed that they cleaned the main street on that day but there was no mention of the back street.  In fact, they had never ever washed the back street before as it was not their duty to wash it.

15.In cross-examining the Applicant, Mr. Sakhrani reviewed to the court the history of the Applicant putting her case in this incident.

16.The pleaded case of the Applicant in November 2003 was initially that she “slipped and fell onto the ground” and the water hit against her feet strongly that “caused her to fall onto the ground”.  There was no mention of the Applicant being frightened or “extremely horrified” until the Application was amended in June 2005.

17.According to the medical social worker’s report, on 17^th May 2002 the Applicant’s children told the medical social worker that the Applicant had had a slip and fall on the street before the onset of limb weakness and on 24^th May 2002, the incident recounted by the Applicant and her daughter was that when the Applicant was returning from the toilet, there were staff of the Department washing the street and she fell down twice.  There was no mention of the Applicant being frightened or to that effect on the report.  

18.The “slip and fall” account was repeated to Dr. Chin when he examined the Applicant on 12^th November 2004.  That was also the first time in evidence that the Applicant had ever mentioned about the fact that she was frightened.

19.In the Applicant’s statement of March 2005, she made no mention of slipping and falling onto the ground and instead emphasized she was “extremely horrified and felt discomfort instantly”.  There was also no mention of her falling onto the ground twice.  When asked in court, she was very sure that she had never slipped nor fallen.

20.When the Applicant saw Dr. Yu in April 2006, the Applicant said a little water had splashed on her feet.  She did not mention that a water jet had sprayed her feet directly.  She said that she was “surprised” but not that she was “frightened” or “extremely horrified”.  The Applicant’s godson reported that the Applicant told him that she had fallen twice as a result of the water splashes.

21.Mr. Wong, counsel for the Applicant, submitted that the ability of the Applicant to express herself might have been impaired after the stroke, she was described as “confused” when admitted to the hospital.  The account given by the Applicant in relation to the existence of the staff of the Department and she was splashed by water had been consistent all along.

22.Madam Wong Yuet Ying, younger sister of the Applicant, gave evidence that she heard from the wife of the Applicant’s boss on the date of the accident that the Applicant was shot with water by the staff of the Department and hurt. 

23.In the notice filed by the Respondent to the commissioner for labour (“form 2”) dated 21^st May 2002, the description of the accident was that the Applicant was shot by water and fell to the ground twice.

24.In assessing the evidence of the Applicant, I have in mind the fact that she had suffered a stroke that might have affected her ability to express herself and even impaired her memory.  I have also in mind the comment of Dr. Yu that the Applicant had not exaggerated her disabilities and I shared the same view after observing her giving evidence.

25.However, having a lot of sympathies to her though, there are some aspects in the evidence that cannot be accounted for even having given due allowance in considering the Applicant’s evidence with the above factors in my mind.

26.The Application was filed on 28^th November 2003, one and a half years after the incident.  One would have thought the Applicant must have figured out what actually happened by then, no matter how she was confused soon after the incident.  However, her case was premised on a slip and fall case, or the fact that she fell onto the ground caused by water hitting against her feet.  It had also been pleaded that “as a result of the said accident, the Applicant sustained serious injuries to her head and shoulder”.     

27.There was no explanation given from the Applicant or anyone as to why there was such a sudden and significant change of her case.

28.Mr. Sahkrani suggested that the change was a result of the report of Dr. Chin in November 2004.  Having sight of the report, as put forward by Mr. Sahkrani, the Applicant then twisted her case to suit Dr. Chin’s opinion that made it possible to get the Respondent or the Department to be responsible for the stroke that she suffered.

29.I share the same view with Mr. Sahkrani.  The Applicant first ever mentioned that she was “extremely horrified and felt discomfort instantly” in her statement in March 2005, 4 months after Dr. Chin’s report and nearly 3 years from the incident.  The change was obviously to suit the proposition of Dr. Chin that emotional stress can cause cerebral haemorrhage.

30.The Applicant did not describe the degree of fright she had in her oral evidence.  In fact she did not say she was frightened in her evidence-in-chief, apart from adopting the contents in her witness statement.  Nor did she say she was frightened when she was specifically asked in cross-examination what she felt when water hit at her.

31.In putting forward a case that hinged upon her being “extremely horrified”, one would expect the Applicant to say more in this aspect in her evidence.

32.Quite apart from the above observations, the account given by the Applicant is inherently improbable.  According to her evidence, she was able to walk back to the shop after the accident.  If she had in fact been hit by the workers with water that caused her feet wet and extremely horrified, it would be inconceivable that she did not complain or even say a word to the workers.  It would also be inconceivable that she did not ask the workers, who were just a few feet from her and responsible for her conditions, for assistance given the fact that “she felt faint and the right side of her body was extremely weak”.   

33.On the other hand, I can have no reason to doubt the evidence of the workers, with one of them being retired long from the service of the Department.

34.In the circumstances, I am unable to conclude that the Applicant was hit by strong water, being extremely horrified, or feeling unwell instantly.

35.Mr. Wong in his opening submission invited this court to consider the Applicant’s case in a wider sense by saying that it would be sufficient for the Applicant’s purpose to prove that somehow water had been splashed to the Applicant that made her frightened.

36.First of all, as I had pointed out to Mr. Wong there and then, this was not what had been specifically pleaded by the Applicant.  Secondly, even if there had been water splashed to the Applicant in the course of the workers washing the main street, it would be very unlikely, if not incredible, that the Applicant was “extremely horrified” or even frightened by a mere splash of water.

37.With the above findings, this application must fail in that the Applicant failed to prove an accident occurred. Suffering a stroke alone cannot be an accident within the meaning of the Ordinance.  However, for completeness it would be appropriate to deal with also the medical evidence adduced before the court.

Medical Evidence

38.The medical evidence was mainly relevant to the issue of causation.  It premised on the footing that the Applicant was frightened or “extremely horrified” as a result of jets of water hitting against her.

39.It is common ground that in approaching the issue of causation, the judge has to use his commonsense in the same way as would a juror do.  The judge will no doubt be assisted by the medical evidence but he is not dictated to by it.  Lee Kin Kai v Ocean Tramping Co. Ltd [1991] 2 HKLR 232.

40.Dr. Chin in his report said :-

“So I opine what happened was that Madam Wong was caught by surprise when she opened the door of the toilet as she saw a strong jet of water shooting towards her feet.  She was frightened and the blood pressure suddenly shot up and caused the bleeding.  Her labile hypertensive state was recorded in her medical notes…and in fact, on the day of examination in my clinic, her blood pressure was quite high 180/100 which settled down slowly when she became less anxious.  This type of hypertensive cerebral bleeding which happened when patients became excited, anxious or frightened, were commonly seen in patient who was playing majong, horse race or other types o[f] gambling.”

41.The postulation of Dr. Chin was basically that, given the fact that the Applicant’s blood pressure can fluctuate easily, whilst the risk of cerebral haemorrhage goes up together with blood pressure and emotional stress elevates blood pressure, the stroke was probably caused by the fright of the Applicant in view of the temporal proximity between the two.

42.In cross-examination, Dr. Chin was asked if he was able to produce any medical studies supporting his postulation.  As regard the proposition that emotional stress may cause cerebral haemorrhage, Dr. Chin replied that there were some studies of it but he did not bring it as the area was still inconclusive and he did not think it useful to bring the studies.  For his assertion that “hypertensive cerebral bleeding which happened when patients became excited, anxious or frightened, were commonly seen in patient who was playing majong, horse race or other types o[f] gambling”, Dr. Chin said he did not search for the studies but he would be able to find some if he do it. 

43.On the other hand, Dr. Yu produced to the court extracts from a medical textbook (Stroke Pathophysiology, Diagnosis, and Management by Philip A. Wolf, MD and others, 4^th edition) listing out the risk factors for stroke.     While chronic hypertension was known to be one of the risk factors for stroke, it can be noted that emotional stress has not been identified as one.

44.Dr. Yu opined that there was in fact no medical studies to suggest that emotional stress can be a cause for cerebral haemorrhage or that “hypertensive cerebral bleeding which happened when patients became excited, anxious or frightened, were commonly seen in patient who was playing ma[h]jong, horse race or other types o[f] gambling”.

45.I prefer the evidence of Dr. Yu to that of Dr. Chin.  If there were in fact medical studies in existence supporting Dr. Chin’s postulations, albeit inconclusive in the area, it would be difficult to understand why Dr. Chin viewed them as not useful and chose not to bring them to the court.

46.Mr. Wong referred me to a paragraph in the same textbook saying that the incidence of stroke was approximately 3 times greater in persons with a blood pressure of 180mm Hg systolic than in persons with normal blood pressure.  Hypertension increases the incidence of stroke and the level of risk is clearly related to the height of the blood pressure.  He asked me to apply commonsense to conclude that the fright of the Applicant made her blood pressure increased and caused the stroke.

47.With respect, I do not think I am entitled to apply my commonsense this way.  In so doing I would have assumed the role of a medical expert.  Without the aid of any medical studies, there would be no sufficient foundation on which I could apply my commonsense as a lay person in the medical field to find that emotional stress can raise one’s blood pressure acutely to cause cerebral haemorrhage.  

48.I appreciate the force of Mr. Wong’s argument on the “temporal proximity” point.  However, as pointed out by Dr. Yu in his opinion, the stroke would have happened at that time whatever the Applicant was doing.  The fact that the two events happened at the same time did not in itself create a cause and effect relationship.

49.In his final submission, Mr. Wong referred to the case of Ho Woon-king v The Hong Kong & Kowloon Wharf & Godown Co., Ltd. [1965] DCLR 265 to support his view that the court can rule in his favour without the aid of any medical evidence in a similar situation.  As summarized in the headnote, in this case the employee 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.  Judge W. F. Pickering said in his judgment that :-

“In the absence of direct medical evidence it seems to me that the facts must be allowed a voice.  Normally healthy men, engaged upon work which requires no particular exertion, even though they have up to a short time previously been occupied in a task calling forth exertion though not of a greater degree than normal to them, do not suddenly suffer paralysis.  There must have been a predisposing physical condition, whether of high blood pressure or otherwise, unknown to the deceased workmates and possibly even to himself.”(p.287)

50.It can be noted that the fact that the learned judge sought to infer without the aid of medical evidence was the pre-existing physical condition of the employee, that is, whether the he had or had not suffered high blood pressure for a long time.  On the other hand, there was evidence that “hard work would accelerate the occurrence of a stroke”.  The learned judge accepted the medical evidence and after drawing an inference as to the pre-existing physical condition of the employee, awarded compensations.

51.For the present case, there was, as I found, insufficient medical evidence saying that “fright would lead to the occurrence of a stroke” and there would be no basis upon which I could draw such inference.

52.Mr. Wong had also submitted to me, after the trial had finished and judgment reserved, 2 American cases in relation to compensations sought for strokes suffered at work.  Although I must stress that such late filing or submission of legal authorities should not be encouraged, I did look at and consider the cases.  I can just say that the cases were decided upon their own medical evidence before the respective courts and have no relevance to the present case.

53.I conclude that even if the Applicant was hit by water as alleged and frightened, she has failed to prove that the stroke was caused by the incident.

Arising out of the employment

54.The remaining issue on liability is whether the injury was arising out of the employment.

55.Section 5(4) of the Ordinance provides that:-

“an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment.”

56.Mr. Wong submitted that this provision shifted the burden to the Respondent to disprove the fact that the accident has arisen out of the employment.  With respect, I disagree.  The provision is but a deeming provision giving a presumption in situation where no evidence to the contrary is before the court.  As cited by Mr. Sakhrani in his submission in the case of R. v National Insurance (Industrial Injuries) Commissioner, ex parte Richardson [1958] 1 WLR 851 :-

“But if there is evidence to the contrary by whoever it is given … then the presumption or deeming disappears, and if once that deeming disappears it is then for the applicant to prove that the accident did arise, not only in the course, but also out of, his employment.” (per Lord Goddard C.J. at p.855)

57.In Clover, Clayton & Co. Limited v. Hughes [1910] A.C. 242, Lord Loreburn L.C. had this to say :-

“It may be said, and was said, that if the Act admits of a claim in the present case, every one whose disease kills him while he is at work will be entitled to compensation.  I do not think so, and for this reason.  It may be that the work had not, as a 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 can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it.” (at page 247)

58.It is beyond dispute that the Applicant going to the toilet was incidental to her employment.  However, it would be different to say that as a matter of substance, the employment of the Applicant as a clerk had contributed to the accident.  The case of the Applicant was that she was shot by water that caused the stroke.  It has nothing to do with her job, except perhaps it so happened that she went to the toilet in the office hour.

59.The issue is now academic.  Suffice it to say is that, if I were to decide on this issue I would have decided it in the Respondent’s favour.

Appeal under Section 16 of the Ordinance

60.Both parties appealed against the assessment of the Employees Compensation (Original Assessment) Board that the Applicant suffered a 40% loss of earning capacity.

61.It is the opinion of both experts that the Applicant can unlikely be gainfully employed in future.  Having observed the Applicant in court, particularly in relation to her disability on movement and communication, I agree to the opinion of the experts.

62.In the circumstances, I re-assessed the permanent loss of earning capacity of the Applicant as 100%.  I also agreed with both experts that 2 years’ sick leave should be allowed.

Quantum

63.The Applicant claims under Section 9, 10 and 10A of   the Ordinance.  There was not much challenge by the Respondent of the Applicant’s evidence in relation to quantum.

64.The Applicant’s monthly earning immediately preceding the accident was HK$11,500.

65.Compensation under Section 9 would be HK$11,500 x 72 = HK$828,000.  For Section 10, the amount would be HK$11,500 x 24 x 80% = HK$220,800. 

66.I accept that the medical and travelling expenses of the Applicant was HK$18,792 in total and I assessed the amount accordingly under Section 10A.

Conclusion

67.In the premises, I order that the Application be dismissed. 

68.Costs should follow the event, I make an order nisi that costs of this action be to the Respondent to be taxed if not agreed, with certificate for counsel.  This order nisi shall become absolute after 14 days upon handing down of this judgment.

69.The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.      

Mr. Wong Chi-kwong instructed by Messrs W. K. To & Co. for the Applicant.

Mr. Ashok Sahkrani instructed by Messrs Cheng, Yeung & Co. for the Respondent.