Wong Yuet Yung v. Wah Fung Hong Gas Engineering Co Ltd
Read the full judgment text of CACV 33/2007 on BabelCite. This Court of Appeal judgment was delivered on 19 February 2008 before Rogers VP, Sakhrani JA, Lam JA.
Employees' Compensation – construction of s.5(4)(a) – meaning of 'in the absence of evidence to the contrary' – shop clerk suffered a stroke after returning from a toilet near her workplace – claimed she was startled by a jet of water from a Food and Environmental Hygiene Department washing pipe – whether stroke arose out of and in the course of employment – applicant alleged splash of water caused fright and stress-induced rise in blood pressure – court follows Regina v National Insurance (Industrial Injuries) Commissioner ex parte Richardson, holding that s.5(4)(a) is rebutted if there is any evidence that the accident did not arise out of the employment – respondent produced such evidence through Dr Yu, whose testimony was preferred by the trial judge – Dr Chin produced no medical studies supporting emotional stress as a cause of cerebral haemorrhage – medical textbooks did not list emotional stress as a stroke risk factor – trial judge's factual finding that applicant was not hit by a jet of water and was not extremely horrified was not plainly wrong – proximity between returning from toilet and stroke not causally conclusive – whether water was a contributory cause – held, no – appeal dismissed – order nisi for costs in favour of the respondent.
Legal issues: Whether the applicant's stroke arose out of her employment under s.5(4)(a) of the Employees' Compensation Ordinance · Whether water splashing was a contributory cause of the stroke
Outcome: Appeal dismissed. The applicant's claim under the Employees' Compensation Ordinance failed because she did not establish that the stroke arose out of her employment.
Cited by 8 cases
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cacv 33/2007 in the high court of the hong kong special administrative region court of appeal civil appeal no. 33 of 2007 (on appeal from DCEC NO. 1315 of 2003) ______________________ BETWEEN
______________________ Before : Hon Rogers VP, Sakhrani and Lam JJ in Court Date of Hearing : 31 January 2008 Date of Handing Down Judgment : 19 February 2008 ______________________ J U D G M E N T ______________________ Hon Rogers VP: 1.This was an appeal from a judgment of Deputy District Judge S T Poon. The matter before the judge was a claim by the applicant under the provisions of the Employees’ Compensation Ordinance Cap. 282 (“the Ordinance”). The judge dismissed the applicant’s claim because he held that the applicant had failed to prove that an accident had occurred in the terms of the Ordinance namely that there had been personal injury caused to the applicant by accident arising out of and in the course of the employment. At the conclusion of the hearing of this appeal judgment was reserved which we now give. Background 2.The applicant was a clerk employed in a shop in Sham Shui Po. At about 11 a.m. on 11 May 2002 the applicant went to a toilet which was located in a side lane about 10 feet from the main road where the shop in which she worked was located. There is no dispute that she suffered a stroke, probably at the time that she was returning from the toilet. The medical evidence was that the stroke was probably caused by hypertension but not by any physical injury. 3.The applicant’s pleaded case was that, when she exited from the toilet, water which was jetting from a nozzle of a washing pipe used by staff of the Food and Environmental Hygiene Department hit strongly against her feet. The pleaded case goes on:
4.The judge recorded the applicant’s evidence in paragraph 30 of his judgment where he said:
5.This court was taken to the transcript of the applicant’s evidence and it is clear that the only time the applicant mentioned being frightened was when she was being cross-examined about the change in her case. It would appear that originally she had claimed to have been knocked to the ground because of the jet of water. Upon the amendment of the pleadings the allegation was as set out above. 6.The judge did not accept the applicant’s evidence that she was hit by a jet of water nor that she had been extremely horrified because of that. He went on to say that even if there had been some water splashed on the applicant whilst the workers had been washing the main street it would be very unlikely, if not incredible, that the applicant had been extremely horrified or even frightened by a mere splash of water. 7.In my view, having considered the evidence recorded in the transcript I see no ground for interfering with the judge’s finding of fact in this regard. 8.Mr Bharwaney, who appeared on behalf of the applicant in this court, sought to rely on section 5(4)(a) of the Ordinance which provides that:
9.In my view the judge correctly construed this subsection. In doing so he had reference amongst other things to the decision in Regina v National Insurance (Industrial Injuries) Commissioner ex parte Richardson [1958] 1 WLR 851. In the course of his judgment Lord Goddard CJ pointed out that the words of the section, (the same as the present section) were “in the absence of evidence to the contrary” and not “in the absence of proof to the contrary” or “unless the contrary is proved”. He construed the section to mean no more than that if there was evidence that the accident did not arise out of the employment then no presumption arose at all. 10.As was pointed out by Mr Sakhrani, who appeared on behalf of the respondent, there clearly was evidence to the contrary. Although Dr Chin, who had given evidence on behalf of the applicant, had suggested that the stroke might have been related to stress caused by the presence of water, Dr Yu, whose evidence the judge accepted in preference to Dr Chin’s evidence, refuted that that would have been the case. 11.Dr Chin had said in his report that he opined that what had happened was that the applicant was caught by surprise when she opened the door of the toilet and saw a strong jet of water shooting towards her feet. That had caused her to be frightened and her blood pressure had suddenly shot up and caused the stroke. In the course of giving evidence:
12.As the judge recorded, Dr Chin was unable to produce any medical studies to support his postulation. The judge then went on to refer to the fact that Dr Yu had produced extracts from a medical textbook which listed out the risk factors for strokes, but notably absent from that list was emotional stress. Again, in my view, the judge was entitled to accept Dr Yu’s evidence that there were 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 Mahjong, horse race or other types of gambling” as opined by Dr Chin in his report. 13.In those circumstances, although the applicant clearly suffered a stroke whilst at work and that would come under the category of being an accident, that accident did not arise out of her employment. 14.Finally, Mr Bharwaney argued that even if the presence or splashing of water was not the only cause of the applicant’s stroke it was a contributory cause. In my view on the evidence that was accepted by the judge there is no ground for a holding that the water was a contributory factor. 15.In those circumstances, whilst I would express sympathy for the applicant, I consider that there is no option but to dismiss this appeal. I would make an order nisi of costs in favour of the respondent. Hon Sakhrani J: 16.I agree. Hon Lam J: 17.I agree with the judgment of the Vice-President. 18.Mr Bharwaney opened this appeal by saying that he relied on the alternative case of the Plaintiff being startled by a splash of water. Quite apart from the fact that this was not the case as pleaded by the Plaintiff, the judge also made explicit finding against that scenario. In paragraph 36 of his judgment, the judge said,
19.In other words, the judge rejected the suggestion that the Applicant’s stroke was occasioned by a splash of water. 20.Mr Bharwaney had not advanced any grounds that would justify this court reversing this factual finding of the judge. Counsel prayed in aid the proximity of the stroke with the Applicant’s return from toilet to her place of work. I do not think the proximity points conclusively to a casual connection between the stroke and the return trip. I also agree with the Vice-President that the judge cannot be criticized for preferring the evidence of Dr Yu to that of Dr Chin. In the circumstances, this court cannot be satisfied that the finding of the judge was plainly wrong. 21.That leaves the Applicant with the position that she suffered a stroke whilst she was at work. There is no evidence suggesting that the stroke had anything to do with her work. 22.I respectfully agree with the Vice-President on the construction of Section 5(4)(a) of the Ordinance. 23.Hence, the Applicant failed to establish that the accident arose out of her employment. As a result, the appeal falls to be dismissed. Hon Rogers VP: 24.There will therefore be an order in terms of paragraph 15 above.
Mr Mohan Bharwaney, instructed by Messrs W.K. To & Co., for the Applicant/Appellant Mr Ashok K. Sakhrani, instructed by Messrs Cheng, Yeung & Co., for the Respondent/Respondent | ||||||||||||||||||||||||||||
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