Lam Kim Fai v. Express Security Ltd

DCEC 652/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO.652 OF 2008

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BETWEEN

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Coram: District Judge S. T. Poon in Court

Dates of Hearing:  1^st, 2^nd, 3^rd & 4^th of February 2010

Date of Handing Down of Judgment: 20^th May 2010

J U D G M E N T

Introduction

1.On 26^th July 2007, at around 4:45 p.m., the Applicant was found lying unconscious on the floor of the Telford Garden Shopping Arcade with severe head injury. As a result of the injury, he lost consciousness for about a month. His daily living is now totally dependent on others and he has lost all capacity for work.

2.The CT angiogram on 27^th July 2007 revealed, among other things, that there was extensive bleeding in the Applicant’s brain and fractures of the left mastoid and occipital bone. This is suggestive of an occurrence of hard impact on the Applicant’s head.

3.The Respondent is and was a company providing security services to properties. Telford Garden was one of its clients. The Applicant was employed by the Respondent as Operation Manager. Part of his duties was to visit clients’ premises to supervise the staff there.

4.In this action, the Applicant claims against the Respondent for compensation under Sections5, 9, and 10 of the Employees Compensation Ordinance Cap.282 (“ECO”).

5.The dispute between parties is on liability[1]. Whilst the Respondent has no dispute that the Applicant suffered an accident in the course of the employment, it disagrees that the accident arose out of the employment.

6.The Court heard evidence from 2 factual witnesses[2] for the Applicant and 1 for the Respondent[3]. Neurologists[4] for the parties also gave evidence to assist the Court.

7.The Applicant’s case is that, since the cause of the accident is unknown, by virtue of Section 5(4)(a) of the ECO, the accident shall be deemed to have arisen out of the employment.

8.On the other hand, the Respondent suggests that the Applicant has fainted before he fell down and hurt his head. The accident was caused by some kind of problems to the Applicant’s health and has nothing to do with the employment. A possible problem or illness is spontaneous subarachnoid haemorrhage (“spontaneous SAH”) caused by hypertension or rupture of a small cerebral aneurysm[5].

9.Initially, the Applicant put in witnesses statements[6] and evidence regarding the nature of work of the Applicant and his health. This kind of evidence is relevant as to whether the spontaneous SAH, if any, was caused by the stress from work and hence arose in the course and out of the employment. At trial, the Applicant no longer pursued along this line and the evidence was not presented to the Court.

10.As pointed out by Mr. Ramanathan S.C., Senior Counsel for the Respondent, in his final submission, the crux of the issue in this case falls within a narrow compass.

Factual evidence

11.The factual evidence was not much in dispute. The main disputed area was whether the Applicant suffered hypertension before the accident and whether he was a smoker.On these issues Madam Kwan, the Applicant’s wife, and Mr. Lam, the Applicant’s son, were cross-examined quite extensively by leading counsel. Questions were put to them relating to the addresses of the Applicant and what was said to the doctors and Police by Mr. Lam about the Applicant’s health.

12.Suffice to say is that, Mr. Lam’s evidence does not sit well with the records of the hospital and Police.

13.In the admission records of the Queen Elizabeth Hospital[7], it mentioned that the Applicant had previous conditions of hypertension and identified the medications he was taking for his hypertension. In the Head Trauma Record[8] taken on the same day, it recorded the same information and also that the informant was the “relatives”. There is no dispute that Mr. Lam was present at the hospital and he was the one most familiar with the Applicant’s health amongst the people there.

14.The Police confirmed in 3 letters[9] that Mr. Lam had told the police officer concerned that the Applicant suffered hypertension. There is no reason why the Police would make this up.

15.My view is that Mr. Lam has not been truthful about the history of health of the Applicant. I am satisfied that the Applicant suffered hypertension before the accident in view of the fact that he had taken the relevant medications[10].

16.Regarding where the Applicant was living at the time of the accident, it was only relevant to the credibility of the witnesses and whether they were familiar with the condition of health of the Applicant. In view of my above findings, the issues become academic. However, if I were required to express my view on this issue, I would accept the reason given by Mr. Lam for the cause of the confusion and rule that this issue does not in any way affect the credibility of Mr. Lam or Madam Kwan.

Experts’ evidence

17.The neurologists compiled a joint expert report[11] for the purpose of this litigation. Regarding the severity of the injury suffered by the Applicant, the experts have little dispute. They opined that the Applicant’s neurological deficits are severe, including neurocognitive impairment, dysphasia, bulbar dysfunction with swallowing difficulty, tetraparesis and double incontinence. The Applicant is a mentally disordered person within the meaning of the Mental Health Ordinance, Cap. 136 and has lost all his capacity for work.

18.However, the experts have not come to an agreement in respect of the cause of the Applicant’s injury.

19.Dr. Fong, the Applicant’s expert, stated in the joint expert report that:

“Based on the available evidence, his brain injury is likely to be traumatic in origin.  However, the causation of head injury was unable to be ascertained with a reasonable degree of medical certainty.  A possibility of spontaneous subarachnoid haemorrhage (“SAH”) leading to collapse with a devastating head injury was considered.

Subarachnoid blood was demonstrated at the temporal parietal regions (upper part) of the right cerebral hemisphere.  There was no blood signal could be found over the basal cistern (lower part).  This pattern of SAH is suggestive of traumatic in origin.  If there was a spontaneous SAH, the aneurysm should be located around the distal right middle cerebral artery (MCA).  For patients with a SAH due to distal MCA aneurysm confined to right temporal parietal region, a common presentation would be sudden onset of severe headache with focal neurological deficit (for example, left sided weakness).  When the haemorrhage and its associated brain insult progress, the patient may become comatose over a certain period of time, for example, over minutes to hours.”

20.On the other hand, Dr. Yu, the Respondent’s expert, had this view:

“(1) The frontal and temporal sites of cerebral contusions are typical of traumatic brain injury.  Assuming he fell backwards landing on his occiput, these would be contra-coup lesions[12].  However, in the majority of cases, such lesions are the result of high speed impact (as in motor vehicle collision at high speed) or a fall from considerable height.  Seldom would this occur in a healthy person from a fall backwards onto ground, since in such a fall the buttocks would land first taking away the brunt of the impact of the fall.  The impact on the head would be much reduced.  Moreover, in the course of the fall, the hands would also move automatically to break the fall.

(2)  The subarachnoid haemorrhage was extensive and mainly situated in the supratentorial compartment.  Its origin can either be spontaneous or traumatic.  Spontaneous subarachnoid haemorrhage is commonly a result of ruptured cerebral aneurysm or cerebral arteriovenous malformation, and the less commonly hypertension-related rupture of blood vessels.  While it was reported that cerebral aneurysm was not present in the CT cerebral angiogram, it should be noted that CT angiogram would not be able to detect cerebral aneurysms at or less than 3 mm in diameter.  Moreover, a negative CT angiogram cannot prove or disprove subarachnoid haemorrhage due to hypertension.

(3)  The presence of bleeding tendency would magnify any haemorrhage lesions arising from traumatic brain injury.  However, [the Applicant’s] coagulation profile was normal[13].

Under the circumstances, two possibilities exist:

(1)  [The Applicant] had head trauma presumably due to a fall from a standing position.  All the intracranial lesions (brain contusions, subarachnoid haemorrhage) are to be accounted for by trauma despite the highly unusual features as discussed above.

(2)  [The Applicant] developed spontaneous subarachnoid haemorrhage, either due to rupture of a small cerebral aneurysm (≤3mm) or hypertension.  As a result of this ictus, he lost consciousness and fell onto ground.  Because all reflex protective functions were lost in an unconscious state, he fell like a piece of ‘dead wood’ and the head sustained the brunt of the impact resulting in the severe brain contusions.

With the available evidence, it would not be possible to say which of the two possibilities is more likely.”

Spontaneous SAH

21.The experts agreed that the Applicant suffered traumatic brain injury, probably due to an impact on the back of his head. However, Dr. Yu provided a postulation that the Applicant should have lost his consciousness before he fell onto the ground and hurt his head. He further suggested that spontaneous SAH could be the cause of the loss of consciousness and the condition of the Applicant’s brain after the injury was consistent with spontaneous SAH.

22.Regarding whether there had been any spontaneous SAH, Dr. Fong gave his analysis more thoroughly in his oral evidence. With reference to the CT scan taken after the incident, Dr. Fong identified to the Court the blood signals found in the different parts of the Applicant’s brain. The CT scan showed multiple haemorrhage including bi-frontal haemorrhage, left subdural[14] haemorrhage and right subarachnoid haemorrhage. According to Dr. Fong, they were all compatible with a contra-coup injury as the blood signals were all situated at an area close to the skull bone and directly opposite to the site of the head wound. On the other hand, as the majority of the cerebral aneurysms are around the Circle of Willis[15], the fact that there is no blood signal found nearby makes it less likely to be a spontaneous SAH.

23.Dr. Fong opined that, as there was no blood signal found at the basal cistern[16], if there was a spontaneous SAH, the aneurysm should be located around the distal right middle cerebral artery where blood signal was found, and since there was no finding of any aneurysm there or anywhere from the CT angiogram, the chance of any happening of spontaneous SAH was low. However, Dr. Fong did agree that a CT angiogram probably cannot detect cerebral aneurysm at or less than 3 mm in diameter.

24.Although Dr. Fong agreed that it was possible that the Applicant had a spontaneous SAH resulting in loss of consciousness causing him to fall to the ground, he said that this was less likely because if there was spontaneous SAH of this degree of the bleeding over the distal middle cerebral artery, he would expect that the impairment of consciousness should be developed over a period of time.

25.Dr. Fong gave evidence that, if the Applicant had “fallen like a piece of dead wood”, spontaneous SAH was not a likely cause. If the Applicant suffered spontaneous SAH, he would probably get a headache or weakness and will sit down and ask for help, rather than fall like a piece of dead wood. When questioned by Mr. Ramanathan, Dr. Fong agreed that spontaneous SAH might cause instant loss of consciousness but in that case he would expect that the bleeding would be more extensive and the area around the basal cistern would have been filled up with blood.

26.Mr. Ramanathan also pointed out that there were medical records showing that the Applicant suffered bilateral weakness on both sides. Dr. Fong explained that the right side weakness can be caused by the bifrontal haemorrhage as a result of the contra-coup injury, not because of spontaneous SAH, if any.

27.Dr. Fong further explained that, the ambulance record[17] showed that right side weakness was detected first on the spot and then weakness on both sides was detected in the hospital. He said that there should be an ongoing process for development of the weakness to the left side which was inconsistent with the postulation that the Applicant suffered spontaneous SAH before the impact on his head. Because in that case there would be left side weakness first as a result of aneurysm at the right middle cerebral artery. In the CT scan, it showed more prominent SAH on the right side of the brain.

28.Dr. Yu disagreed that a SAH at one side necessarily gave rise to weakness on the other side because for a SAH the bleeding was on the surface outside the brain, unlike the case in an intracerebral haemorrhage, where the bleeding was inside the brain tissue.

29.Dr. Yu agreed that if there is blood in the basal cistern, it is more likely to be spontaneous than traumatic SAH, and vice versa. However, regarding whether the suggested spontaneous SAH was serious enough to cause an instant loss of consciousness, Dr. Yu viewed that the lack of blood around the basal cistern is immaterial as subarachnoid blood was present bilaterally and extensively. With this extensiveness of the SAH, he would not be surprised that the Applicant lost consciousness very quickly. Dr. Yu also added that the hypertension of the Applicant would augment the severity of the SAH as high blood pressure would aggravate the extent of the bleeding from an aneurysm if it bursts.

30.However, Dr. Yu agreed that the best that we can have in terms of documenting the extent of the SAH was the CT scan which showed only the state of the Applicant’s brain after his admission to the hospital. It means that it would not be possible to distinguish whether the extensive SAH as shown by the CT scan was contributed by the traumatic injury or spontaneous SAH.

Hypertension

31.It is not in dispute that hypertension may, albeit that it is uncommon, cause rupture of blood vessel and hence a SAH. Besides, hypertension can also be a contributing factor to a spontaneous SAH.

32.Dr. Fong said, however, that if there has been a rupture of blood vessel caused by hypertension, the bleeding should be located more deeply inside the brain, for example, over the thalamus, which is not the case here.

33.Mr. Ramanathan referred Dr. Yu to an article[18] on SAH suggesting that berry aneurysm formation occurs from degenerative changes induced by hemodynamic stress and hypertension is a presumed stressor. Profound hypertension may cause disruption of the classic layers of the artery leading to aneurysm formation. However, the article also states that rupture of a berry aneurysm accounted for as many as 80 per cent of all cases of non-traumatic SAH and berry aneurysms are distributed throughout the Circle of Willis.

Discussion

34.Section 5(4) of the ECO provides that:-

“anaccident 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.”

35.Mr. Ramanathan submitted that the deeming provision is not applicable on the facts of the present case. If there is evidence to the contrary, then the deeming provision is simply not engaged and there is clear and compelling evidence to the contrary in this case. He referred me to my own decision in Wong Yuet Yung v Wah Fung Hong Gas Engineering Company Limited[19] which has been affirmed by the Court of Appeal[20].

36.In Wong Yuet Yung, the applicant suffered a stroke when she was on her way back to the shop where she was working after going to the toilet. The toilet was located at some distance from the shop in the back street. She alleged that she was frightened by the water shot at her by workers from the Environmental Hygiene Department who were then washing the back street with a water hose. A neurologist was called to give evidence that the stroke was caused by the high blood pressure as a result of the fright of the applicant. I rejected their evidence and found that that was not the cause of the stroke.

37.On the interpretation of Section 5(4), as described by the Court of Appeal[21], I construed the section “to mean no more than that if there was evidence to prove that the accident did not arise out of the employment then no presumption arose at all”. The Court of Appeal agreed.

38.Mr. Ramanathan relied heavily on the postulation made by Dr. Yu and invited me to find that the accident has nothing to do with the employment.

39.Was there any evidence to prove that the accident did not arise out of the employment? InWong Yuet Yung, there was no dispute that the applicant did suffer a stroke that caused the injury. What was in issue was the cause of the stroke and unless otherwise proven by evidence, one could hardly suggest that the cause was one relating to the applicant’s work. In other words, it was prima facie not related to work.

40.Here, we have a different situation. It was not in dispute that the Applicant had an injury on his head probably a result of a hard impact, as evidenced by the contra-coup lesions and the fractured bones. Such impact at the back of the head accounted for part, if not all, the injuries suffered by the Applicant. Leaving aside the postulation put forward by the Respondent’s expert, the cause of the impact was unknown and one could not say that it was prima facie not related to the Applicant’s work.

41.Dr. Yu’s postulation was one derived from logical deductions. Firstly, the contra-coup lesions were caused by a very strong impact on the Applicant’s head and therefore, a normal slip and fall case cannot be the cause as the impact has to be sufficiently strong which usually would happen in falling from height cases or traffic accidents. The reason why it cannot be a normal slip and fall case is that in cases where the person is still conscious when he falls, he will apply his inborn defensive measure to protect himself by, say, using his hand or buttock to land and the impact on his head will not be so strong as to cause contra-coup lesions.

42.Secondly, an essential element of the postulation is that the Applicant suffered from an instantaneous blackout. Dr. Yu suggested spontaneous SAH as a cause to the blackout. And this is consistent with the SAH found in the Applicant’s brain, albeit that the SAH can also be a result of the traumatic impact.

43.However, what is worth noting is that the logic behind Dr. Yu’s suggestion is not that according to the medical evidence before him, there probably or likely was a spontaneous SAH. It was rather that since the Applicant probably lost his consciousness instantly, and as there was no evidence suggesting any other causes, it was probably spontaneous SAH because it cannot be ruled out in view of the medical evidence. With respect, this kind of reasoning is actually putting the cart before the horse. Dr. Yu did not say that an instant loss of consciousness is usually a result of spontaneous SAH. The fact that the Applicant suffered an instant loss of consciousness is not in itself adding any likelihood to the existence of spontaneous SAH.

44.Although hypertension can be a contributing factor to spontaneous SAH, it would be far fetching to suggest that because of the Applicant has hypertension, he is likely to have spontaneous SAH on the day.

45.On the contrary, Dr. Fong had pointed out a lot of medical factors to support that spontaneous SAH was unlikely. There was no aneurysm found in the CT angiogram, there was no bleeding near the basal cistern and all the bleedings found were near the skull bone. Should there be aneurysm less than 3 mm in diameter that caused a spontaneous SAH, it would not likely be serious enough to cause an instant loss of consciousness. I accept his evidence and find that there is insufficient evidence to suggest that the Applicant suffered from a spontaneous SAH.

46.What remains with us is the fact that the Applicant hurt his head seriously caused by strong impact. Mr. Ramanathan stressed that there is no evidence of any “foul play”, namely, that the Applicant was hit by someone. I would say equally, there is no evidence even for the suggestion that the impact was caused by a fall. Even if the impact was caused by a fall, there is no evidence as to what caused the fall and how he fell. To assume that a normal slip and fall case cannot cause such a strong impact is lack of evidential basis. Without knowing how the Applicant fell, no conclusion can be drawn that the Applicant must or probably have lost his consciousness instantly before he fell.

47.Dr. Yu’s postulation is, albeit attractive on its face, unsustainable in evidence. I respectfully reject it in my judgment.

48.There is no dispute that the accident was arising in the course of the employment. By virtue of section 5(4) of the ECO, as there is no evidence to the contrary, it is deemed to have arisen out of the employment.

49.In the premises, I find the Applicant entitled under the ECO to claim compensation from the Respondent.

50.As mentioned, there is no dispute on the amount of compensation. The monthly salary of the Applicant was HK$14,500. He was 58 at the time of the accident. For sections 7 and 9, the amount will be 48 months x HK$14,500 = HK$696,000. Under section 10, the amount will be HK$14,500 x24 x 4/5 = HK$278,400. The total amount awarded is thus, HK$974,400.

51.Judgment be entered against the Respondent in favour of the Applicant in the sum of HK$974,400 and interest thereon at 4% per annum from the date of accident to judgment and thereafter at 8% per annum until payment.

52.I make an order nisi that costs of this Application be to the Applicant to be taxed if not agreed. This order nisi is to become absolute after 14 days.

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

Mr. Walker W M Sham instructed by Messrs Au Yeung, Cheng, Ho & Tin for the Applicant.

Mr. Kumar Ramanathan S.C. instructed by Messrs Cheng, Yeung & Co. for the Respondent.