Yu Suet Wan v. Fidelity Property Management Ltd
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DCEC 815/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO.815 OF 2005 __________________ IN THE MATTER OF AN APPLICATION BETWEEN
__________________ Coram: Deputy District Judge Anthony Kwok in Court Dates of Hearing: 22-23, 26 & 28-29 March 2007 Date of Judgment: 11 June 2007 _________________ J U D G M E N T _________________ Introduction 1.This is a claim for employee’s compensation which is made by the applicant, Madam YU Suet-wan, who is the widow of the late CHIU Jing-choi (the deceased) and the only dependant of the deceased under Employees’ Compensation Ordinance, Cap 282 (the “Ordinance”). 2.The deceased, who was a security guard, had been employed by the respondent to work on a construction site at Ap Lei Chau Drive, Southern, Hong Kong (the “site”). The nature of the work of the deceased as a security guard entailed the surveying of the site at night and reporting his duty to the office of his employer by mobile phone at hourly intervals. 3.At about 0455 hours on 16 July, 2003, PC 52378 KONG Siu-fai (“PC 52378”) found a male dressed in watchman uniform lying on the ground near the entrance inside the site with his shoe or shoes removed and at the side of his feet. After entering the site via another entrance with the assistance of another watchman, Mr. TAI Hon-shing (“TAI”), PC 52378 found that the body on the ground was already cold, with no sign of breathing and no pulse. The paramedics later arrived and confirmed that the watchman lying on the ground was already dead. Tai was able to identify the dead body as that of his partner, the deceased. PC 52378 later found a signature book on top of the desk inside the guardpost and he found that the deceased last signed on that book at 0200 hours, indicating that the deceased could have died at any time after his signature on that book and before his body was found. The deceased was aged 62 at the time his death. He left behind his widow, the only dependant. 4.This Court will determine, under section 5 of the Ordinance, whether the accident leading to the death of the deceased was one arising out and in the course of the employment.
The non-medical expert evidence 5.The applicant described the deceased as a healthy man who did not smoke or drink alcohols. Although he did not engage in any habitual sport activity, he went to the park near their living place for a walk when he was off the work. They lived on 13th floor of a public housing estate in Kowloon but the elevator went up to 11th floor only which means the deceased had to walk two floors up and down everyday. There were about 16 steps on each floor and the deceased walked up 32 steps every time when he came back home from work. According to the applicant, the deceased was never hospitalised in any of the hospitals in Hong Kong or elsewhere and he was never under constant medical care and treatment during his life time. He had only consulted two doctors in his life time: Dr. David HAO and Dr. CHAN Lai-yee. The applicant remembered that the deceased had told her that because of the long distance of travelling to and from work and also long working hours, it would be better for him to pocket some pills just in case and at about 6 months before the accident, she found a bag of pills in the deceased backpack at home and out of curiosity, she took the pills out and have them checked by a serviceman at a local drug store. The serviceman told her that those pills were no more than medicine for coughs, headache, mucus, dizziness, and cold. The applicant later talked about the general health condition and the bag of pills with the deceased and he confirmed to the applicant that he did not have any health problem and that those pills were only meant to serve as a guard against sudden illness at work. 6.The deceased last consulted Dr. HAO on 23 June 2003, some 20 days before the accident. No sick leave was given on his last treatment on that day. As regards to pervious treatments, the diseases that the deceased complained of, said the applicant, were common diseases in Hong Kong, namely coughing, flu, headache and having mucus. The applicant remembered that on the last occasion of his treatment, there was no fever and breathlessness on the part of the deceased, nor any chest pain. She only remembered the deceased caught cold and had cough. 7.According to the applicant, the deceased was employed by the respondent around 2000 as a security guard. As a substitute of other security guards, he worked from 1900 hours to 0700 hours (12 hours) a day, with one day off per week. On the day of the accident, the applicant recalled that the deceased left home for his work as usual. She was later told of the accident by the police at 0525 hours in the morning. She later arrived at the site with her elder brother before 1000 hours but did not see her late husband. According to her description, the site was full of debris or dirt all over the place. Most of the ground surface she saw near the location of or on the spot of the accident were coarse, wet, slippery, and not smooth at all. There were water and water hose near the guardpost of the deceased. 8.The other security guard TAI also testified on behalf of the applicant. TAI started to work for the respondent in the beginning of 2003 and he left the employment in March 2005 on his own volition. During his employment as a security guard with the respondent, he worked night shift with the same working hours as the deceased. According to TAI, he and the deceased were the only two security guards assigned by the respondent to watch guard of the whole site. TAI emphasised in his statement that he was not acquainted with the deceased. They would greet each other at work when they saw each other and that was all. They were assigned at different post. TAI’s post was at the top part of the site while the deceased’s post was at the main gate of the site. According to TAI, the deceased did not need to patrol and sound the bell but he needed only to report duty to the headquarters of the respondent by mobile phone every 2 hours. The starting time for reporting was 2100 hours. Apart from telephone reporting, the deceased also needed to record and describe the condition of the site in the record book at his post on an hourly basis. 9.TAI did not have any knowledge of the accident until he was approached by the police to open the door in the site at around 0530 hours and they went together to the main gate of the site to understand the situation together. According to TAI, there were no unusual condition during that time and everything was normal and quiet. Before the accident, he did not hear the deceased shouting and calling for help. He remembered last seeing the deceased at around 2030 hours at his post and he did not notice anything unusual about the deceased. He walked normally, without panting and coughing. Finally, in his statement, he spoke of seeing some water marks on the ground at the scene. In court, he described that the ground was uneven and the surface was wet as well as slippery. Under cross-examination, he agreed that part of the place where the deceased was lying on was cemented but part of the place was not. There was dust over the place and there was a pool of water accumulated nearby. When questioned why he failed to mention that the ground was slippery in his statement, TAI denied that he was ever told by anyone to give this information in court. According to TAI, that was probably he just missed out the part but he thought there was no difference as he already has described the place to be wet and it contained water marks anyway. He also said that sometimes, a security guard would assist in spraying waters on the ground near the guardpost at the vehicle entrance. 10.PC 52376 was also summoned by the applicant to give evidence. He told this Court how the body of the deceased was discovered as described in paragraph 3 above. He saw that there was no sign of searching and fighting at the guardpost and the relevant area of the site and there was no sign of injury or wound on deceased’s body. Because the location where the deceased was found was slanting, he believed the deceased had slipped and fell onto the ground and he died from want of rescue. He produced a set of photographs taken by his colleague in his presence of the location where the deceased was found lying on the ground. When asked if he could still remember whether only one or both shoes of the deceased were taken off next to the feet, he could not remember. PC 52376 described the condition of the ground as uneven and slopping downward but he had no impression whether there was water mark on the ground inside the site. He could remember, however, that there was no rain at that time. 11.The only non-medical expert witness called by the respondent was its senior manager, Mr. TANG Yau-choi (“TANG”). He was responsible for managing and supervising the security guards of the respondent who were assigned to work at the site. In his statement, TANG confirmed the details and the terms of the employment of the deceased by the respondent. In particular, he described the duty of the deceased as a night-shift security guard at the site was to guard the post located next to the vehicle entrance of the site. According to TANG, the deceased was also required to check that the locks installed at the main entrances on the ground floor of the building constructed were securely fastened at about once every hour, and to visually inspect the external of the building to see if there was any water or fire hazard. On the whole, he opined that the duties were not physically demanding and the deceased was not working under pressure or time constraint. In the witness stand, TANG specifically denied that the security guard was instructed to spray water on the ground. He said, however, that the principal contractor of the site, Sun Hung Kai Properties had hired its own worker to spray water on the ground of the site. According to his description of the accident spot, the ground surface of the entrance of the site was rough and it was sloping down from one side to another. The Issue 12.The issue in this matter comes about in this way. The autopsy report of the decease dated 18 July, 2003 was complied by Dr. CHO chi-bun. The cause of death was given as “Chronic Bronchitis” with the following remarkable findings:
The Government laboratory detected ephedrine and codeine in urine and ephedrine in blood at therapeutic level. Despite the findings in the autopsy, however, the common ground between the medical experts called by both side was that the deceased had suffered from chronic obstructive pulmonary disease (“COPD”) and the cause of death was said to be “cardiac arrhythmia”(except the respondent’s cardiologist who said it was “sudden cardiac death”). It is the applicant’s case that the onset of arrthymia requires a precipitating event, a ‘trigger’ which eventually leads to the death. Based on the evidence of the witness called by the applicant, it is contended by the respiratory expert, Dr. Edwin POON (“Dr. POON”) that the deceased had slipped and fallen at the site and suffered cardiac and/or cerebral contusion by way of blunt trauma, which triggered the cardiac arrthymia. Alternatively, according to the cardiac expert, Dr. David HU (“Dr. HU”), the deceased had slipped and fallen, he then suffered from a transient loss of consciousness, in the course of which his tongue in that lying position rolled back, blocked his air passageway, causing a transient hypoxaemia (low oxygen level) from reduced respiratory effort, and eventually triggered the fatal arrhythmia. 13.On behalf of the respondent, it is submitted that there was no factual foundation for the premises that the deceased slipped and fall on the ground. It was argued that if the deceased had suffered a cardiac arrhythmia first, he would then have fallen to the ground. Based on the known facts about the deceased bodily condition especially about the bad lung and the heart condition, the respondent argued that the deceased was prone to suffering cardiac arrhythmia. He had a low threshold for this and little was required to trigger this. In the case of the deceased, there was a number of established factors already existed which would have been sufficient to cause death: the exacerbation of the COPD causing hypoxaemia, the ephedrine in the blood, and the sudden cardiac death. In their final analysis, it was submitted that on the balance of probabilities, the deceased did suffer death occasioned by his severe COPD with heart disease. Thus, the death came from the own inherent ailment of the deceased alone and was not arising out of his employment. The Medical Experts 14.Each party has called a respiratory expert as well as a cardiologist to advance their case. In their reports, they all have referred to the autopsy report and medical notes of Dr David HAO, who last saw the deceased about 3 weeks before the accident. It is convenient to set out the medical findings of Dr. HAO on his last consultation of the deceased. According to the notes, the deceased visited Dr. HAO’ clinic because of cough and headache for two days. There was no fever and no breathlessness. On examination on the chest, a few rhonchi were heard. Dr. HAO prescribed antibiotic, bronchodilator, anti-hypertensive agent and other symptomatic treatment were given for two days. The deceased’s general condition was said to be fair. 15.The applicant’s respiratory expert Dr. POON and the respondent’s respiratory expert Dr. YU wai-cho (“Dr. YU”) both questioned the pathologist finding that the death was attributed to chronic bronchitis. According to Dr. POON, chronic bronchitis is a clinical diagnosis. As the deceased did not smoke, there is no clinical evidence of chronic bronchitis by its symptom definition. Both experts agreed that the deceased however suffered from COPD. However deaths from COPD were rarely abrupt. After excluding a numbers of possible medical conditions that caused sudden death, Dr. YU suggested cardiac arrhythmia as the most probable cause of death without significant findings at autopsy. Dr. YU opined that:
In conclusion, Dr. YU opined that the light physical nature of the duty of the deceased as a security guard and the absence of noxious gases or fumes at the working environment at night made it most unlikely that the death was related to work. He would speculate that cardiac arrhythmia may be the cause of death. He concluded by saying:
16.Dr. POON however maintained that in addition to the risk factors which by lowering the threshold may predispose the deceased to cardiac arrhythmia, “a precipitating event is required to initiate the arrhythmia.” In looking for such a trigger, Dr. POON excluded the possibility of exacerbation of COPD as there was lack of evidence in view of the absence of symptoms as described by the applicant and TAI and that the deceased went to work as normal. Rather, Dr. POON opined that:
17.To refute Dr. POON’s theory, Dr. YU emphasised on the lack of evidence of head injury or chest injury at autopsy. Dr. POON, however, maintained that cardiac arrhythmia could arise from blunt trauma to the head or chest as a result of fall without positive pathological findings. Dr. POON also disputed the presence of the so-called risk factors listed by Dr. YU. In relation to hypoxaemia (low oxygen), he pointed out that there was no evidence of low oxygen since this was not recorded as well. Ephedrine was detected at therapeutic level but, said Dr. POON, there was no evidence of toxicity from overdose. A low potassium was mere speculation since there was no documentation of the level and there was no evidence that idapamide (a common drug for blood pressure that can cause hypokalaemia) was taken regularly in the case of the deceased. 18.The cardiac expert called by the applicant Dr. HU has had a long and distinguished career in Canada, USA and Hong Kong since 1979. Dr. HU has been elected a Fellow of American College of Cardiology since 1987. He is now in the Private Practice and is affiliated to the Hong Kong Sanatorium and Hospital, Matilda Hospital and St. Paul Hospital. Dr. HU has university level teaching, research and over 20 years clinical experience in the field of cardiology. Before he complied his report, he had read all the opinions of the two opposing respiratory experts as well as his counterpart, the cardiac expert of the respondent, Dr. MOK Ngai-shing (“Dr. MOK”). As said in paragraph 12 above, after considering all the facts provided, Dr. HU believed that the deceased slipped and fell causing a transient loss of consciousness. This could be either caused from a direct hit or from a vasovagal attack (sudden drop in blood pressure), this could cause a transient severe hypoxaemia from reduced respiratory effort or airway blockage, which then triggered the fatal arrhythmia. 19.Dr. MOK is a Senior Medical Officer in the Cardiac Division of the Department of Medicine & Geriatrics, Princess Margaret Hospital since 1993. He concurred with Dr. POON and Dr. YU’s opinion that the death of the deceased was mostly caused by a cardiac arrhythmia and to be specific, ventricular fibrillation. He defined the death as a sudden cardiac death. According to his opinion, sudden cardiac death is used to describe a situation in which the heart abruptly and without warning stops working, so no blood can be pumped to the rest of the body. The most common (over 80%) mechanism of sudden cardiac death is ventricular fibrillation. In ventricular fibrillation, the electrical signals that control the pumping of the heart suddenly become rapid and chaotic. As a result, the lower chambers of the heart, the ventricles, begin to fibrillate instead of contract, and they can no longer bump blood from the heart to the rest of the body. The person loses consciousness in seconds resulting in a sudden collapse. After reviewing the deceased medical records and the autopsy findings, Dr. MOK considered the possibility of a number of structural and functional abnormalities as responsible for the deceased’s sudden cardiac death. Dr. MOK then went on to postulate that the deceased had several potential transient risk factors which might have triggered his sudden cardiac death. Among them, acute coronary artery spasm induced by ephedrine and ventricular arrhythmias triggered by hypokalaemia and/or hypoxaemia were identified as the two most plausible explanations for the sudden cardiac death of the deceased. 20.Dr. MOK also dismissed the contention that the deceased had a slip and fall which might have triggered sudden cardiac death. He opined that the autopsy findings spoke against any significant head and chest injury. The Law 21.I begin with the useful decision in the English Court of Appeal case Wilson v Chatterton [1946] 1 KB 360. The headnote summarises the decision concisely:
Scott LJ later also said the following in the judgment:
22.The applicant relied on Ocean Trampling Ltd v. Lee Kin Kai [1991] 2 HKLR 232, 235-6, to clearly establish that causation is essentially a matter for the judge, not for the doctors. It also held that the 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 (236B). 23.The applicant also urged me to follow a long-established and consistent broad approach when I come to resolve the question of causation. In Clover Clayton v. Hughes [1910] AC 242:
24.In Lee Fuh v. Ming Hing Construction Co [1991] HKDCLR 105, Deputy Judge Burrrell (as he then was) explained the meaning of the word “material” when he said the word should be used in the context of sufficient and relevant and not meaning major or primary. In other words, if the work contributed to the death in anyway it would surely be material. 25.In closing submission, Mr. Sakhrani for the respondent submitted that the deeming provision in section 5(4) of the Ordinance does not assist the applicant in this case and so the burden of proving the accident arose out of employment remains with her. The sub-section provides:
26.In light of the fact that at trial, there were conflicting medical evidence concerning the cause of the death, I agree with Mr. Sakhrani’s submission that the deeming provision does not apply in this case. Conclusion 27.I must now apply these principles to the evidence as I find it. The medical experts’ evidence of both sides all disputed the pathologist finding that the cause of death of the deceased was chronic bronchitis. They opined that the deceased suffered from COPD. But there is a difference in opinion as to whether COPD could be classified as severe in the case of the deceased. Be that as it may, they generally agreed that death was unlikely to be directly related to this disease. 28.Dr. POON, Dr. HU and even Dr.YU were of the opinion that cardiac arrhythmia was the cause of the death. Of all the specialists, only Dr. MOK of the respondent dismissed the opinions of the others that there need to be a “trigger” or precipitating event to occur for the onset of cardiac arrhythmia. Rather, Dr. MOK spoke of sudden cardiac death as the cause and concentrated on the structural and functional abnormalities of the heart condition of the deceased. 29.Both experts called by the applicant have taken into account the statements of other witnesses, the photographs and the consideration of the general working environment of a construction site and came to the conclusion that it was likely that the deceased had slipped and fallen onto the ground. Dr. HU in particular prayed in aid of the fact that the deceased was found lying on his right side with a shoe fell off. Dr. HU alone took into account of the dusty working environment of a construction site and said that :
30.Both experts called by the respondent, however, did not believe that the deceased had slipped and fallen before his death. They relied on the fact that there were no signs of apparent injuries found on head or chest of the deceased. 31.For my part, after carefully consider all the evidence in the round, I prefer the opinion called by the applicant. Firstly, I found that the surface of the ground where the deceased was found was wet as described by TAI, the security guard. It was true that TAI also mentioned that the ground was slippery but he did not mention that in his statement but I was impressed with TAI’s evidence. I accepted that he did not acquaint with the deceased who was only a substitute security guard and there was no reason why he had to lie on this matter. It was true that after the cross-examination by Mr. Sakhrani, TAI said he could not remember whether it was slippery but as Mr. Cheung, counsel for the applicant, has rightly submitted, a wet floor is more likely to be slippery and also a small wet area is sufficient to cause a person to slip, there is no need for the ground surface to be flooded with water to render it slippery. There was also the additional piece of evidence given by TANG, the senior manager of the respondent who supervised the deceased that the area was often sprayed with water by a female worker on the site in the area near by the entrance and the guardpost. It was not in dispute that the area where the body was found was sloping from one side to another and that could be clearly seen on the photographs produced. I also found that at least not all the surface of the ground was cemented thus rough and uneven. In the circumstances, it was highly probable that the deceased slipped on the wet floor. Mr. Sakhrani had commented that the conclusions reached by the two applicant’s expert that the deceased slipped and fell was speculative. With respect, I disagreed. On the other hand, after taking the medical evidence into account, there was ample circumstantial evidence about the geography and condition of the site which could allow me to infer that it was highly likely that the deceased slipped and fell before his death. 32.Secondly, I agreed with the observation by the applicant’s cardiologist Dr. HU that his counterpart Dr. MOK’s evidence appeared to be a treatise on sudden cardiac death and its causes. Dr. HU commented that:
33.Mr. Cheung, for the applicant rightly pointed out that Dr. MOK, went event so far to suggest that the pathologist has omitted the presence of ‘left ventricular hypertrophy’ in order to advance his case. Under cross-examination, Dr. MOK admitted 80% of Sudden Cardiac Death was the result of coronary artery and myocardial disease. The deceased however did not fall into this category. Dr. MOK also relied on the presence of ephedrine in the urine and blood sample of the deceased, contending that despite being at therapeutic level, it could still act as a trigger factor. He cited a survey in Texas, USA and the fatality rate was 8/500, i.e. about 1.5%. However out of those 8 fatal cases, 7 were attributed to myocardial infraction or cerebralvascular accident but none about cardiac arrhythmia, which was largely agreed by experts in the case as the cause of death. 34.Apart from the ephredine and the sudden cardiac death, Dr. YU, the respiratory for the respondent had mentioned the exacerbation of the COPD causing hypoxaemia as a possible cause of the death. In his report, Dr. YU said:
Dr. HU had also rightly pointed out that COPD was caused by smoking and long-term smoking. However, there was no evidence that the deceased was a smoker. Dr. YU then concluded that it was possible that smoking habit was unknown to the applicant, the widow of the deceased. In my judgment, using my common sense approach as mentioned in Ocean Tramping Co. Ltd (supra.), if the deceased was fit enough to travel to work, it was unlikely that his cause of death was the result of exacerbation of COPD. For my part, it is difficult to accept that the consumption of normal dosage of cough syrup over counter in Hong Kong may have the effect of triggering the sudden cardiac attack in the case of the deceased. 35.To attack the theory of slip and fall, the respondent relied mainly on the absence of head or chest trauma to say that it could not be true. In reply, Dr. POON had cited some medical literatures to say that blunt trauma may cause impact without leaving any obvious and apparent signs of injuries. I also note that the examples given, as in the case of ephredine causing death cited by the respondent, were rare. On this note, I fully agree with Mr. Cheung’s observation in his final submission that after hearing all these conflicting opinions, only one thing is certain : “there is hardly any certainty in medicine.” 36.To play down the factor of absence of head or chest trauma would seem to be unfair to the respondent. However, by even ruling out the possibility of the trauma, Dr. HU for the applicant, in my judgment, was able to postulate a very sensible and highly probable cause of the death on behalf of the applicant:
37.In his conclusion, Dr. HU reiterated that the deceased slipped and fell causing a transient loss of consciousness be that from direct hit or from a vasovagal attack, this could cause a transient severe hypoxaemia from reduced respiratory effort or airway blockage, which then triggered the fatal, arrhythmia. The arrhythmia then caused his death. In arriving at the conclusion of “slip and fall” as he did, Dr. HU was fully alive to the absence of bruises in the autopsy report:
38.This is a very difficult case. There is no evidence what the deceased was actually doing shortly before his death. Despite the autopsy report which stated that the cause of death was chronic bronchitis, all the medical experts did not concur with this conclusion. It was agreed by three of them (Dr. POON, Dr. HU of the applicant and Dr. YU of the respondent) that the cause of death was cardiac arrhythmia while Dr. MOK maintained that the cause would be sudden cardiac death. The applicant contends that the deceased met with the accident and eventually died from accident arising out of and in the course of the employment. According to both, Dr. POON and Dr. HU, the deceased had slipped and fallen while on duty and eventually died and further no rescue was given on time which would otherwise have saved his life by the respondent. The respondent questioned the so-called ‘slip and fall’ theory and averred that the deceased died from his own aliment and that his death would have occurred irrespective of his employment. Each side prayed in aid weighty medical opinions. The experts all resorted to their medical expertise and supported their theories by researches. They both have their shortcomings in their arguments as illustrated above. In this connection, I remind myself what Hunter, JA said in Ocean Tramping Co. Ltd (supra.) at p235I-J and p236A-B:
Hunter, JA went on to cite Lord Reid in McGhee v. National Coal Board [1973] 1 WLR 1 at p236E:
39.In the end, by applying the legal principals, and using a broad approach as mentioned in Clover Clayton v. Hughes (supra.), looking at it broadly, although the deceased had suffered from COPD and had a predisposing physical condition, I say, and free from over-nice conjectures, the deceased did not die from his own aliments. I prefer the medical experts called by the applicant in their analysis of why the deceased met his death. I am particularly impressed with the sensible and straightforward analysis by Dr. HU, the applicant’s cardiologist in particular. I am of the firm view that there was a casual connection between the working environment and the death of the deceased. In arriving the conclusion as I did, I was mindful not to embark on a course of benign speculation favourable to the applicant. Order 40.Accordingly, I will allow this application. As to the amount of the compensation, both parties had agreed on the quantum in the final submission. I order that the respondent do pay the applicant the sum of HK$230,164.00. The award shall be with interest thereon at half judgment rate from the date of accident until date of award, and judgment rate thereafter until payment. 41.Costs to be to the Applicant with certificate to counsel, to be taxed, if not agreed. Applicant’s costs to be taxed in accordance with Legal Aid Regulations.
Respresentation: Mr. Y.L. Cheung instructed by Messrs. Wong Yuen Chi & Co. for the Applicant Mr. Ashok Sakhrani instructed by Messrs. Cheng, Yeung & Co. for the Respondent |