Ip Yiu v. Polystyrene Foam Products Factory Ltd

DCEC 160/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 160 OF 2005

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BETWEEN

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Coram  :  Her Honour Judge Mimmie Chan in Court

Dates of hearing  :  24 - 28 August & 1 September, 2009

Date of handing down Judgment  :  16 October, 2009

JUDGMENT

Background

1.Mr. Ip was employed by the Respondent as a technician for 34 years. He worked in the Respondent's moulding factory at Castle Peak in the New Territories, where the Respondent carried on business as manufacturer of polystyrene foam products. Large moulding machines were placed in rows within the factory premises where Mr. Ip worked, and from photographs of the workplace exhibited, polystyrene foam and finished products would be placed near and around the machines, allowing limited and confined space for workers to move around the machines.

2.It is Mr. Ip’s case that on 29 December 2003, he was working in the factory when he hit his upper back/neck area against the base of the metal safety gate of one of the moulding machines. He felt pain in the upper back and neck area, but after taking a rest for about 15 minutes and applying ointment to the affected area, he continued to work until 5 pm that day.  In the evening, he applied further ointment to the injured area. He went to work as usual at 8 am the next day on 30 December 2003, and at about 9:30 am, he felt pain on his chest and back. The pain turned very severe, and he had to take leave to seek medical treatment from a general practitioner, Dr. Chan. Dr. Chan diagnosed Mr. Ip as suffering from influenza which had got into his bone and had caused the pain in his chest and back. Painkillers were prescribed to Mr. Ip, who went home to rest for the remainder of the day.

3.On 31 December 2003, because the pain in his chest and back was getting better, Mr. Ip went to work as usual. He worked until about 3 pm, when the pain in his chest and back suddenly got worse.  He stopped work and returned to Dr. Chan's clinic, where he was given an injection and further medication. When Mr. Ip was resting at home that day, his pain progressively increased, to the extent that he sought treatment at the Accident and Emergency Department of the Tuen Mun Hospital ("Hospital") some time after 6:30 pm. Whilst at the Accident and Emergency Department, Mr. Ip suddenly felt numbness all the way from his toes to the chest, lost sensation from his lower limbs, and developed paraplegia. He received urgent treatment, and was diagnosed with spinal epidural haematoma ("SEH"). The MRI scan showed extradural collection of blood on his spine, with acute cord compression at the upper thoracic (T1 to T3) level. An urgent operation was performed on 1 January 2004 to remove the blood clot at the C7 to T2 region.  No active bleeder was noted during surgery, and the bleeding source was not found.  Despite the decompression procedure, Mr. Ip remained paraplegic and is now wheelchair-bound for the rest of his life.

4.These proceedings are commenced by Mr. Ip to seek compensation for the injury sustained in the course of his work. It is not in dispute that Mr. Ip had not mentioned to any of his treating doctors the fact of his having injured his neck or upper back on 29 December 2003, or any other time. His claim for compensation under the Employees Compensation Ordinance is accordingly denied by his employer, the Respondent, which claims that Mr. Ip had never given any notice to the Respondent of the accident which allegedly took place on 29 December 2003, or of the injury allegedly sustained as a result.

Issues

5.The issues which arose for determination at trial are :

(1)       whether Mr. Ip had hit his neck and upper back on 29 December 2003, as alleged ;

(2)      whether notice of the accident was given by Mr. Ip to his employer; and

(3)      whether the accident at work on 29 December 2003 caused Mr. Ip's injuries.

6.The parties have agreed that if Mr. Ip is entitled to compensation, the calculation of the amount of compensation payable is $1,498,039.

7.In relation to the issue of whether notice of the accident was given, the Respondent does not raise any technical point that the lack of notice would in any way affect Mr. Ip's entitlement to compensation under the Ordinance. Proceedings having been commenced on 1 February 2005, there is no question of time bar and the issue as to whether notice of the accident was given on 1 January 2004 or 12 January 2004, as Mr. Ip alleges, effectively affects the credibility of the witnesses.

Whether Mr. Ip had hit his neck and upper back on 29 December 2003, as alleged

8.Having carefully considered the entirety of the evidence, I accept Mr. Ip as an inarticulate but overall an honest witness. The thrust of the Respondent's attack on his case is that the alleged work injury is a fabrication, as supported by the fact that he had never informed his employer and the doctors and medical staff who had treated him that he had had an accident at work and had injured himself before his admission to the Hospital on 31 December 2003. Essentially, it was the absence of reported trauma which led the doctors at the Hospital to conclude that Mr. Ip suffered from SEH, i.e. that the cause of the spinal epidural haematoma cannot be ascertained.

9.I accept on the evidence that Mr. Ip experienced frequent hits and bumps in the course of his work (as he claims) because the nature of his work: (1) required him to work in an environment where heavy machines were placed near to one another and which was congested with polystyrene materials and products placed near the machines; and (2)  required constant bending on his part. In these circumstances, I consider that it is very probable that Mr. Ip would not be able to recall each and every bump sustained by him in the course of a work day.

10.Further, on the facts of this case, the onset of paraplegia was so sudden and overwhelming that Mr. Ip cannot be blamed for not being able immediately to relate the entire loss of sensation of his lower limbs to a hit on his upper back near the neck, sustained in the usual course of his work on an otherwise unremarkable day. On Mr. Ip 's evidence, it was only when the Senior Medical Officer, Dr. Cheung Ka-Kin of the Tuen Mun Hospital, who had performed the surgery on 1 January 2004, mentioned on 12 January 2004 that the SEH might be the result of a very recent injury that Mr. Ip was able thereafter to recall the accident on 29 December 2003.

11.Mr. Ip's account of the accident on 29 December 2003 was attacked as being incredible. On first glance, this might be the case, but after hearing in detail the evidence of Mr. Ip and that of Mr. Lee of the Respondent, I consider that Mr. Ip's version of the circumstances of the accident is inherently probable.

12.According to Mr. Ip, due to the decline in the Respondent's business, he was the only worker remaining on the factory floor to operate the moulding machines and to work on the manufacturing process. This is not disputed by the Respondent. Mr. Lee, the director of the Respondent, accepts that Mr. Ip was entrusted with doing literally all the work, from operating the moulding machines, to replacing spare parts and simple repairing of the machines, to clearing the finished foam products made from the moulding machines.

13.Mr. Ip's evidence is that on the day in question, he was at the same time repairing one machine, and overseeing the manufacturing process involving 2 moulding machines. He noticed that some products had become stuck on the moulds of one machine in the course of manufacture. He therefore went over to the machine in question, opened the safety gate on one side of the machine, which consequently made the machine stop its operation, and then bent down to go into the part of the machine which was enclosed by the 2 sets of safety gates, one on each side of the machine. He said that before he could enter the enclosed part of the machine, he had to clear some polystyrene products which had fallen down onto the ground below the moulding machine in the usual manufacturing process.  According to Mr. Ip's testimony, he then stood up between the 2 pieces of moulds of the machine and used his hands to pull out from the mould on one side the foam products which had become stuck. The products were discarded on the ground below the moulds, together with the other products which had fallen from the moulds earlier on in the production process. Mr. Ip then bent down to get out from the enclosed part of the moulding machine, with the intention of exiting from the side of the machine opposite to where he had entered. He explained that the control panel of buttons was on the other side, and he had to press the buttons to restart the machine. It was in the process of his getting out from under the machine that Mr. Ip's neck and upper back hit the base of the safety gate of the machine.

14.Mr. Ip was cross-examined at length, as to whether it was physically possible for someone to climb into the machine, and to stand up between the moulds, in the manner he claimed. At the end of the day, I accept that in view of Mr. Ip's physical build (he was small in size and 5'2" in height), the distance between the ground and the base of the safety gates (44 inches) and of the moulds, and the distance between the 2 pieces of moulds in the machine (16 to 18 inches), it was possible for Mr. Ip to have climbed into the machine and to stand up, as he described.

15.On behalf of the Respondent, it was submitted that it was unnecessary for Mr. Ip to have climbed into the machine to pull out the foam products which had allegedly become stuck, because the Respondent had provided a metal hook for this purpose, and that it was possible for a worker to stand outside the safety gate and to use the metal hook to remove the products from the moulds. I accept Mr. Ip's evidence that the hook might damage the foam products, and in any event, there was a distance of about 7 inches to 10 inches between the safety gate and the side of the moulds, such that it was not possible to stretch one's hands into the machine to remove the products from the moulds when standing outside the safety gate.

16.Although Mr. Lee originally claimed that the moulds would be hot, such that it was dangerous for any worker to enter the machine to retrieve the products stuck in the moulds, he accepted in cross-examination that the moulds would have cooled down by the time it was ready to release the moulded products. Despite casting initial doubts on Mr. Ip's claim that products could be stuck in the moulds, Mr. Lee also accepted that this occasionally although rarely happened, and that he had himself done the same thing, of bending down, going into the machine and retrieving the products with his hands.

17.Whether or not this is a dangerous practice, and whether Mr. Ip should have done what he had done, is not relevant to his claim for compensation in these proceedings.

18.The only evidence which is inconsistent with Mr. Ip's account of the accident is the production record which Mr. Ip himself signed. This shows that on 29 December 2003, he had recorded that 65 pieces of foam products described as "Tai Chun” boxes, and 65 pieces of covers for the Tai Chun boxes were manufactured. This is inconsistent with Mr. Ip's claim that the products he had extracted from the machine when the accident happened were smaller products using moulds different to those used for the Tai Chun boxes.

19.According to Mr. Ip, by the time when the accident happened on 29 December 2003, he had already produced several tens of foam boxes, for an order of over 600 pieces of the product in question. He claims that the production record relied upon by the Respondent was not a complete record of the products manufactured on 29 December 2003. He claims that there were two machines which were in operation for production on the day. It is not disputed that Mr. Ip was the only person dealing with and attending to production at the material time, and no other evidence has been adduced as to the state of operation of the machines and the products manufactured on 29 December 2003. It is also Mr. Lee's evidence that the Tai Chun boxes were produced as a matter of routine, without any corresponding orders. It may be that for that reason, Mr. Ip kept a record of the Tai Chun boxes only.

20.Mr. Ip's evidence has also been challenged on the basis of the inconsistencies in the accounts of the accident which he had given to the Labour Department, and in these proceedings.

21.In Mr. Ip's notice to the Labour Department dated 22 November 2004, he claimed that 2 days before he was hospitalized, he had inadvertently hit his back below the neck against the frame of a moulding or bearing machine. I do not consider this to be inconsistent with his present claim, that he had hit the base of the frame of the safety gate of the machine.

22.On 6 January 2005, in answer to a questionnaire issued by the Labour Department, when he was asked to describe the occurrence of the accident, Mr. Ip claimed that he was repairing a machine and producing goods at the same time, and as he was "picking products" (拾貨) and getting up, his neck hit the frame of the machine. Not being an articulate man, and not in the process of dissecting every aspect of his movements as lawyers would do in a court-room, I accept Mr. Ip's description as a short precis of the circumstances leading to the accident. I bear in mind that the Chinese reference to "picking products" may be Mr. Ip's reference to his act of retrieving or pulling the products stuck on the moulds, or to his picking up and clearance of the finished products on the ground under the moulds before he was able to enter the enclosed part of the machine and to get out therefrom.

23.As for the account given in the report of Dr. Chun, the medical expert called by the Respondent, who narrated what Mr. Ip told him about the accident, I accept the submissions made by Mr. Ip's Counsel that what Dr. Chun had actually recorded in his notes was "while working, when picking up something, on getting up the neck hit on a metal frame of a plastic molding machine". Again, I accept that Mr. Ip may have been referring, in Chinese, to his retrieval of the products stuck on the mould and his clearance of the products on the ground under the moulds.

24.On the entirety of the evidence, I accept on a balance of probabilities that Mr. Ip had indeed met with an accident in the course of his work on 29 December 2003, as he claimed.

Whether notice of the accident was given by Mr. Ip to his employer

25.As explained in the earlier part of my Judgment, this issue relates only to the credibility of the witnesses, as to whose version of events I accept.

26.On the evidence, I do not consider that it is probable that notice of the accident had been given to either Mr. Lee or Ms. Lee on 1 January 2004. Even on Mrs. Ip's evidence, when she telephoned Mr. Lee on 1 January 2004, she only mentioned that Mr. Ip would like to take sick leave, as he was undergoing an operation, having experienced chest and neck pains, and then losing sensation in his lower limbs at the hospital. When Mrs. Ip spoke to Ms. Lee, she had only mentioned the taking of leave, and not any accident. In fact, it is Mr. Ip's case that the first time an accident at work was ever mentioned was 12 January 2004, at the earliest.

27.Before dealing with the issue of whether I accept that notice of the accident was given on 12 January 2004, as Mrs. Ip alleges, it is appropriate at this stage to set out Mr. Ip's case as to how the accident on 29 December 2003 was first raised with Dr. Cheung.

28.Mrs. Ip claims that on the day of Mr. Ip's discharge from the Hospital, his family members had gathered at the Hospital and were waiting to see Dr. Cheung. The family was discussing how Mr. Ip could have sustained the blood clot on his spine, and according to Mrs. Ip, someone asked whether Mr. Ip had sustained a hit or a blow without his realizing it. Mrs. Ip then mentioned to the family members that she recalled seeing Mr. Ip applying ointment to his back 2 days before, and suggested that they should consult Dr. Cheung on this.

29.According to Dr. Cheung, he has clear recollection that the first time he was informed that Mr. Ip had had an injury whilst he was working 2 days before his admission to the Hospital was on 12 January 2004, before  Mr. Ip was discharged from the Hospital.   Dr. Cheung 's evidence is that one of Mr. Ip's relatives at the hospital, whom he described as a lady who was "pretty emotional", informed him that Mr. Ip had had an injury 2 days before his admission to hospital, and asked whether the injury could lead to the haematoma. As Dr. Cheung considered that he could not exclude the possibility that any such injury would cause the haematoma, he explained to Mr. Ip 's family members that from the operative findings, the blood clot had looked fresh to him, which meant that the bleeding had occurred not too long before the operation. He confirmed to Mr. Ip's family members that from this experience, the earlier injury could be related to Mr. Ip's condition, and advised Mr. Ip's family that if the injury was work related, they should contact Mr. Ip's employer, the Labour Department and the Legal Aid Department. 

30.Mrs. Ip therefore claims that upon receiving Dr. Cheung's confirmation on 12 January 2004 that Mr. Ip's condition could have been caused by recent trauma, and being advised by Dr. Cheung that Mr. Ip's employer, the Labour Department and the Legal Aid Department should be contacted, she telephoned Ms. Lee either on 12 January 2004, or the next day. Mrs. Ip 's evidence is that she informed Ms. Lee during the telephone conversation that on Mr. Ip's instructions, she was giving notice of an accident sustained by Mr. Ip in the factory on 29 December 2003, when he had hit his neck. According to Mrs. Ip, Ms. Lee denied responsibility on the telephone, and refused to record the report.  

31.On her part, Ms. Lee denies that the above conversation had ever taken place.

32.As for Mr. Ip himself, his evidence simply is that it was some time during the period of his hospitalization, and only after Dr. Cheung had mentioned on 12 January 2004 that his condition might be related to a recent injury, that he was able to recall the accident which took place on 29 December 2003.

33.The substance of Dr. Cheung's evidence on his meeting and conversation with Mr. Ip's relatives is recorded in the contemporaneous notes which he had made in the Hospital records. Dr. Cheung has pointed out that he has clear personal recollection of the discussion. His evidence coorborates that of Mrs. Ip as to how Mr. Ip's accident was recalled by her, related to the relatives and raised with Dr. Cheung on 12 January 2004. According to Mrs. Ip, the lady relative who posed the question to Dr. Cheung was her sister-in-law, who has since passed away.

34.On the question of the telephone conversation between Mrs. Ip and Ms. Lee, on balance, I consider it more probable than not that having been advised by Dr. Cheung to contact Mr. Ip's employer if Mr. Ip had met with an accident at work, Mrs. Ip would have contacted Ms. Lee to mention the accident. On the whole, I find the evidence as to how Mr. Ip's accident at work before his admission to the Hospital on 31 December 2003 was recalled by Mr. and Mrs. Ip to be inherently probable.

Whether the accident at work on 29 December 2003 caused Mr. Ip's injuries

35.The medical experts giving evidence in this case differ in their opinion as to the likely cause of Mr. Ip's serious condition. Arguments center on whether the spinal epidural haematoma should be labeled as "spontaneous", when no particular event can be identified as causing the bleeding and haematoma, or whether the haematoma can be identified as having been caused by an injury, i.e. the accident on 29 December 2003.

36.The leading case on the issue of causation in the present context is Lee Kin-kai v. Ocean Tramping Company Ltd. trading as Ocean Tramping Workshop CACV 64 of 1989. The principles are clearly set out in the oft cited judgment of Hunter JA :

"First causation is essentially a matter for the judge not for the doctors. It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it. Secondly it is important to bear in mind that the law and medicine here, it seems to me, apply quite different standards. In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient; it need not be shown to be the sole cause. The doctors practice, what is known as the science of aetiology. In the words of one in particular, they look for "clinical cause", proof certainly beyond reasonable doubt and perhaps beyond any doubt. They are looking for what Lord Kilbrandon called in McGhee v. National Coal Board [1973] 1 WLR 1 p 10 "an irrefragable chain of causation".

Thirdly, a judge when considering causation is not only entitled, he is bound, to use his common sense, to approach the question in the same way as would a juror. The point was conveniently made in McGhee v. National Coal Board which was a case where owing to limitations of medical knowledge, the plaintiff was unable to prove a strict causal connection in the medical sense between the negligence and his injury. He failed in the courts below. The House of Lords agree that common sense could be used to fill the gap."

37.The test therefore is whether, on a balance of probabilities, the accident on 29 December 2003, whereby Mr. Ip hit his neck and upper back region against the base of the safety gate of the moulding machine, was a substantially contributing cause of his spinal epidural haematoma.

38.It is agreed at least that the other possible causes of SEH, such as arterial or venous malformations or aneurysm in the vein can be, and have been, excluded in Mr. Ip’s case. 

39.I will very briefly deal with the Respondent's evidence concerning the remarks allegedly made by Mr. Ip, Mrs. Ip and Mr. Ip's family members, that Mr. Ip 's condition was the result of some rare disease. From the evidence, it seems clear to me that they were repeating what the doctors had described to them as the condition or physical cause of the collection of blood on his spine: the fine veins, the bleeding from the veins, the blood clot compression on the nerves, etc.  Such remarks can hardly be taken as the cause of Mr. Ip's paraplegia.

40.According to Dr. Cheung who performed the material operation on Mr. Ip, the blood clot found appeared fresh, suggesting that the bleeding had occurred not too long before the operation on 1 January 2004.  However, according to Dr. Cheung, for a significant trauma to give rise to a bleeding inside the spinal canal, the symptoms of the onset of pain, tightness and numbness of the chest and lower trunk, loss of ability to walk and loss of bladder control would be apparent very soon after the injury.  The likely timeframe within which these symptoms become apparent would depend on each individual patient, but Dr. Cheung’s evidence is that generally, they would appear “within hours”. Mr. Ip's paraplegia became apparent 2 days after the alleged injury.   From his experience and on the basis of the medical literature available to him, Dr. Cheung's opinion is that Mr. Ip's case "falls into the gray zone" as to whether the alleged injury on 29 December 2003 can be categorized as "recent".

41.Nevertheless, Dr. Cheung accepted that he could not totally exclude the possibility that Mr. Ip's blood clot and injury was related to an accident occurring on 29 December 2003.

42.As Mr. Ip never mentioned  his work accident on 29 December 2003 to the doctors and staff treating him at the  Hospital before 12 January 2004, his case was naturally diagnosed by the doctors at the Hospital as spontaneous SEH, i.e. that its presentation was without preceding trauma.

43.In the medical report produced by Dr. Chun, the Respondent's medical expert, Dr. Chun initially queried whether the contusion described by Mr. Ip in relation to the accident on 29 December 2003 could have caused injuries to the blood vessels inside the spinal canal. He considered that only "multidirectional twisting" and "sudden jerky movements" can cause such injury. In the course of cross-examination, Dr. Chun came to accept that even if the trauma as described by Mr. Ip was of a sufficient or appropriate level of impact, the symptoms should occur "within a few hours", such that the delay in the onset of symptoms in Mr. Ip's case is the factor which leads Dr. Cheung to conclude that Mr. Ip's injury is not caused by a traumatic contusion on 29 December 2003, as Mr. Ip claims.

44.Dr. Chun no longer sought to rely on his theory, as expressed in his report of 16 November 2006, that the vessels inside Mr. Ip's spinal canal had started to bleed spontaneously on 30 December 2003, initially in a very small amount, which slowly accumulated and led to a gradual increase of space occupied in the spinal canal, such that after his arrival at the Accident and Emergency Department of the Hospital on 31 December 2003, the spinal cord succumbed to the growing pressure and led to total paralysis.  On reflection, he considered this to be unlikely.

45.In the opinion of Mr. Ip's medical expert, Dr. Johnson Lam, Mr. Ip had demonstrated a continual progression of symptoms after the alleged injury on 29 December 2003, such that he considered Mr. Ip's case to be one of SEH after injury, and within the normal or expected timeframe for the symptoms to be fully demonstrated. Dr. Lam relies on medical literature which refers to SEH associated with minor trauma, such as the lifting of objects, and to rare cases in which symptoms were presented in delayed fashion, ranging from 7 days to 2 1/2 months.

46.Dr. Lam considered that Mr. Ip's case is compatible with SEH caused by a painful hit on the neck or upper back on 29 December 2003, as a result of which Mr. Ip developed pain which necessitated his taking a period of rest for 15 minutes and the application of ointment to the painful area, followed by the presentation of symptoms of pain after work, and the next day. The symptoms progressed to become more and more severe until the development of total paraplegia on 31 December 2003. Dr. Lam pointed out that Mr. Ip's history of development of chest pain radiating to the back on 30 December 2003 was probably due to epidural hemorrhage causing back pain which, with irritation of the nerve roots, developed into a feeling of pain in the chest.

47.When Mr. Ip was admitted into the Accident and Emergency Department of the Hospital on 31 December 2003, he was reported to have complained of chest pain radiating to the back for 2 days and bilateral limb weakness for one day.

48.The presentation of symptoms of pain in Mr. Ip is further corroborated by the medical records compiled by Dr. Chan, the general practitioner to whom Mr. Ip had turned for treatment on 30 December and 31 December 2003.

49.Mr. Ip's evidence is that on 30 December 2003, the day after the alleged accident, he had worked from 8 am to 9:30 am, when he suddenly felt pain on his chest and his back, which pain turned very severe in time. He left the factory to seek medical treatment from Dr. Chan. According to Dr. Chan's notes made on Mr. Ip's visit, Mr. Ip had complained of "generalized arthralgia and chest pain". According to Dr. Chan, these notes meant that the patient had complained of muscle and joint pain all over the body, without naming any specific area. Dr. Chan also pointed out that if the patient had named several areas of pain, he would not particularly note all the areas of pain specified by the patient, but would note "arthralgia" instead. According to Dr. Chan, it is possible that Mr. Ip had mentioned pain in the back and/or other areas besides the chest on 30 December 2003, but he could no longer remember. Mr. Ip was informed by Dr. Chan on 30 December 2003 that he had influenza in the bone, and was given painkillers and 2 days' sick leave.

50.Mr. Ip nevertheless went to work as usual on 31 December 2003, as he said that the pain in his chest and back had initially got better. However, after working until 3 pm, the pain in Mr. Ip's chest and back suddenly got worse, and he had to stop work and returned to Dr. Chan's clinic for treatment. According to Dr. Chan's records, Mr. Ip consulted him at about 5 pm on 31 December 2003.  Dr. Chan's notes of the visit record that Mr. Ip complained of "persistent generalized arthralgia, and chest pain". According to Dr. Chan's evidence, Mr. Ip had also complained of "increased generalized muscle pain especially around the back". Dr. Chan claims that in the usual course, he would have examined Mr. Ip for any superficial bruises, laceration and subcutaneous bleeding, but there was no record of any. Mr. Ip was given an injection. It is not in dispute that Mr. Ip had not mentioned any accident to Dr. Chan during his visits on 30 and 31 December 2003.

51.As I have explained in paragraph 9 above, and as Dr. Chun also very fairly accepts in his report, since minor trauma and accidents are frequently encountered by Mr. Ip during his work, it is not surprising for him not to have reported the accident on 29 December 2003 to Dr. Chan, when the symptoms of general ache, malaise and multiple joint pain are very common flu symptoms. When Dr. Chan diagnosed Mr. Ip as suffering from influenza which had spread to the bone, it is very probable that Mr. Ip thereafter dismissed the work accident from his mind entirely.

52.In the absence of any evidence or even suggestion that Mr. Ip had suffered some other blow, or met with any other injury or accident after 29 December 2003 and before his admission to the Hospital on 31 December 2003, I consider it more likely than not and on a balance of probabilities that the blood clot on Mr. Ip's spine was the result of the accident on 29 December 2003, when Mr. Ip hit the back of his neck against the metal gate of the moulding machine. Dr. Cheung could not exclude that Mr. Ip's condition was related to the contusion on 29 December 2003. Dr. Lam considered it to be the likely cause, rather than the SEH occurring spontaneously. He considered that the diagnosis for Mr. Ip should be "post-traumatic SEH". The fact that there is a delay of over 50 hours between the accident and the presentation of full paraplegia may be rare, as Dr. Cheung and Dr. Chun suggest. However, the clinical cause for the delay onset of SEH in Mr. Ip's case may be very complicated, and may never be known. Or it may, to another medical expert, be very simple and medically explicable. In my judgment, the correlation between the contusion on 29 December 2003 and the blood clot appearing in the same region of the contusion is so strong that I can conclude, on a balance of probabilities, that the accident was a substantial cause of Mr. Ip's condition, and this is all that is necessary for the purpose of finding liability in these proceedings.

Conclusion

53.Liability having been established, the parties have agreed that the total compensation payable to Mr. Ip is $1,498,039 : $803,965.68 being the compensation under section 7 of the Ordinance; $259,055 being the compensation under section 10 of the Ordinance; $23,018 being the amount payable under section 10A of the Ordinance; and $412,000 being the amount payable under section 8 of the Ordinance.

54.I will award interest on the sum of $1,498,039 at judgment rate from 29 December 2003 to the date of judgment, and thereafter at judgment rate until payment. There will be an order nisi that the costs of the proceedings are to be paid by the Respondent to Mr. Ip, with certificate for counsel, to be taxed if not agreed. Mr. Ip's own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr. Tim Kwok, instructed by Messrs. Yeong & Co. (assigned by D.L.A.), for the Applicant

Mr. C.K. Wong, instructed by Messrs. JSM, for the Respondent