Sit Wing Yi Sibly v. Breton Industrial Ltd

DCEC 733/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 733 OF 2009

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Coram: Her Honour Judge H.C. Wong in Court

Dates of Hearing: 28 & 29 September 2010

Date of Handing Down Judgment: 25 October 2010

JUDGMENT

1.The Applicant (“Mrs. Cheung”) applies for compensation against the Respondent on behalf of herself and other members of the family of her deceased husband (“the Deceased”) under the Employees’ Compensation Ordinance (“the Ordinance”).

2.The Deceased was found to have collapsed at the toilet of the office of employment in Dongguan, Quangdong, China on 13 July 2007.  He was certified dead at the Dongguan Changan Wusha Hospital at 4.30 p.m.  No autopsy was performed either in Dongguan, China or in Hong Kong.  His body was transferred to Hong Kong for cremation.

3.The Respondent denied the Deceased’s death arose out of, in the course of or in connection with the Deceased’s employment.

4.The Parties agreed that should the Applicant succeed in her claim, the compensation should be based on the Deceased’s monthly salary of $19,184 and under s. 6(1)(a) the compensation is $1,611,456 plus funeral expenses at $35,000.  The interests payable up to 29 September 2010 was agreed at $231,949.41.

The Issues

5.The issues are:-

A.        whether an ‘accident’ happened to the Deceased on 13 July 2007 within the meaning of the Ordinance;

B.        if ‘yes’, whether the accident arose out of his employment. 

6.Section 5 of the Ordinance provides:-

“(1) Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment i.e. caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.

(4) For the purposes of this Ordinance:-

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

7.In other words, the burden is on the Applicant under s. 5 to show the deceased’s death was an accident arising in the course of his employment, should she succeed, there is a presumption that the death also arose out of the employment unless there is evidence to the contrary.

Background

8.It is the Applicant’s case that the Deceased died of sudden cardiac arrest relying on the medical reports issued by the Dongguan Changan Wusha Hospital which stated the deceased died after his heart stopped beating due to unknown cause (Pp. 61 and 67-68 of the bundle).

9.In fact, in his supplemental medical report Dr. Hu Hong, the head of the Medical Department of Dongguan Changan Wusha Hospital, who treated the Deceased when the Deceased was admitted into the hospital, certified his heart and breathing had stopped before admission into the hospital.  Dr. Hu and his colleague Dr. Wu Shu Lin conducted cardiopulmonary resuscitation on the Deceased, their efforts were unsuccessful.

10.Two pathology experts, Professor Annie Cheung and Dr. S.L. Beh, were instructed by the Applicant and the Respondent respectively to investigate the cause of death with the help of the medical background of the Deceased together with the medical records before his death (P. 70-78 of the bundle).

11.The summary of the Deceased’s medical history based on available records revealed he had “a history of polyposis of the colon which was probably hereditary in nature”.  He also had pulmonary tuberculosis which resulted in permanent damage to his lungs evidenced by fibrosis and scaring.  He is described to be a mild asthmatic and showed evidence of pulmonary emphysema.  It is important to note that there had been two episodes of haemoptysis (coughing of blood) documented and investigated at St. Tersea’s Hospital.  He also had an episode of tension pneumothorax which required the insertion of a chest drain.  They found no evidence of malignancy of the lungs or of the colon or evidence of heart disease or congenital heart condition. (P. 73 of the bundle).

12.The two experts’ summary of the incident was: the Deceased was found collapsed in the toilet of his office, his fellow colleagues said he had acted normally with no evidence of any physical distress that day.  They noticed his absence and at a search of the office premises found him collapsed on the floor in the toilet unresponsive.  Blood was found on the floor of the toilet.  The two experts were not able to ascertain the cause of death due to insufficient factual information on the Deceased’s collapse.  They concluded the following at P. 76 of the bundle:-

“There is no evidence to suggest that the death was due to a pre-existing congenital or hereditary condition or related to his previous medical condition. Neither is there evidence to suggest that the death was a result of his employment.”

A. Whether an ‘accident’ happened to the Deceased on 13 July 2007 within the meaning of the Ordinance.

13.Mr. Chan, Counsel for the Respondent, relied on the case of Ormond v. C.D. Holmes & Co. Ltd. [1937] 2 All ER 795 at P. 800H-801A where Romer L.J. said:-

“the first question that has to be determined on this appeal is whether on  December 20, the appellant met with an “accident” within the meaning of sect. 1(1) of the Act. It is only if that question be answered in the affirmative that the further question will arise whether such accident arose in the course of and out of his employment.”

At P. 800G-H be held:-

“If a man be incapacitated solely by reason of the fact that he is suffering from a disease, the incapacity is not due to a personal injury by accident. It may be possible, in certain cases, to attribute the contraction of the disease to an accident, that is to say, to some unlooked-for mishap, or untoward event, and, when that can be done, and the disease results in an incapacity, it may rightly be said that the incapacity is one caused by that accident. But the disease itself is not an accident, in the popular and ordinary sense of that word. If a man should die suddenly of heart disease, without any contributing cause, no one would say that his death was accidental or due to an accident. In some cases, however, incapacity is caused by a disease in conjunction with a contributory cause. A man, for instance, may be suffering from a disease of the heart that sooner or later is bound to cause his death. His death, however, from the disease may be accelerated by some particular, though not necessarily an unusual, act of exertion. In those cases, the death or incapacity can properly be said to be caused by an accident, and, where the contributing cause is furnished by and in the course of the injured workman’s employment, he is entitled to compensation under the Act.”

14.In the more recent House of Lords case of Chief Adjudication Officer v. Faulds [2000] 1 WLR 1035, it was held that a claim based on S.94(1) of the Social Security Contributions and Benefits Act 1992 fell to be decided on the identification of an accident in the course of the claimant’s employment which caused him physical or psychological injury; and that, even where a claimant who was engaged in a stressful occupation developed a stress-related illness over a long period, it was still necessary to identify an incident or incidents which qualified as the relevant “accident” that had caused the claimant’s injury.

15.S. 94(1) of the Social Security Contributions and Benefits Act 1992 provided:

“Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after 4 July 1948 by accident arising out of and in the course of his employment, being employed earner’s employment.”

16.Lord Hope in his judgment at P. 1037E-G set out the history and background to the reference of “by accident” in S. 94(1) of the Benefits Act 1992 and S. 1 of the Workmen’s Compensation Act 1897:-

“The use of the phrase “by accident” in legislation for the provision of compensation or other benefits for personal injury sustained in the course of employment has a long history. Section 1(1) of the Workmen’s Compensation Act 1897 provided that if in any employment to which the Act applied a workman suffered “personal injury by accident arising out of and in the course of the employment” he was to be entitled to compensation from his employers. The same expression was used in section 1(1) of the Workmen’s Compensation Act 1906. It was repeated in section 1(1) of the Workmen’s Compensation Act 1925, which remained in force until the system of workmen’s compensation was replaced by the system of national insurance for industrial injuries which was introduced by the National Insurance (Industrial Injuries) Act 1946. The new legislation adopted the same phrase to define the persons who were to be entitled to benefit. Section 7(1) of the Act of 1946 provided that benefit was payable to an insured person who suffered “personal injury caused after 4 July 1948 [the date when the new system was to come into force] by accident arising out of and in the course of the employment.” This phrase has been preserved in all the subsequent enactments as the basis for entitlement to benefit: see section 5(1) of the National Insurance (Industrial Injuries) Act 1965, section 50(1) of the Social Security Act 1975 and section 94(1) of the Benefits Act.”

17.Lord Hope further referred to the interpretations of “accident” in Fenton v. J. Thorley & Co. Ltd. [1903] A.C. 443:-

“For the purposes of the Workmen’s Compensation Acts the word “accident” was given a wide meaning according to its use in ordinary and popular language. In Fenton v. J. Thorley & Co. Ltd. [1903] A.C. 443, 448 Lord Macnaghten said that:

“the expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an toward event which is not expected or designed.”

Lord Shand said at p. 451:

“I shall only add that, concurring as I fully do in holding that the word ‘accident’ in the statute is to be taken in its popular and ordinary sense, I think it denotes or includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence.”

Lord Lindley said, at p. 453:

“The word ‘accident’ is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence with produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word ‘accident’ is also often used to denote both the cause and the effect, no attempt being made to discriminate between them.”

In Fenton’s case a workman who ruptured himself by an act of over-exertion in trying to turn a wheel was held to have suffered an injury “by accident”.  That was what Lord Lindley had in mind when he referred to “any unexpected and unintended loss or hurt apart from its cause” as being something which fell within the ordinary meaning of “accident”.  The act of turning the wheel was not in itself an accident.  But the injury which the man sustained while carrying out this task fell within the ordinary meaning of the word, looking to the effect rather than to the cause.  The same view was taken of the case of a man who died from heat stroke while raking ashes out of a boiler in the stokehold of a steamship: Ismay, Imrie & Co. v. Williamson [1908] A.C. 437.”

18.The English Courts have laid down clear guidelines on the entitlement of compensation under the legislation that our own Employees’ Compensation Ordinance was based on.  The crucial words in S. 1(1) of the Workman’s Compensation Act 1897 “personal injury arising out of and in the course of employment” has been preserved both in S. 5 of the Ordinance and S. 94(1) of the English Social Security Contributions and Benefits Act 1992.  The House of Lords’ dicta in Chief Adjudication Officer v. Faulds are relevant in similar types of cases in Hong Kong is not in dispute.

19.It follows that where the employee was found to have been suffering from a disease (such as heart disease) which may sooner or later bound to cause his death, if his death or incapacity was accelerated by some particular act of exertion, the death or incapacity can properly be said to be caused by an accident.  If the particular act of exertion was part of or furnished by and in the course of his employment, he or his estate would be entitled to compensation under s. 5(1) of the Ordinance.

20.Turning to the facts of the present case, the Applicant’s pleaded case was “the deceased was found unconscious and lying on the floor of a toilet of the office”.  The evidence from Mr. Wu Yung Hang, a colleague of the Deceased, was he and the Deceased were working as usual on 17 July 2007 in the office, both had meetings with their respective clients in the morning and both had ordered and consumed the same type of lunch box at lunch time.  After lunch, the Deceased was working in the office until colleagues found he was not at his desk.  At 3:30 p.m. the Deceased was found sitting on the floor of the toilet, he had blood on his nose and mouth and a patch of blood was found on the toilet floor.  When Mr. Wu and other colleagues found him unresponsive, they took him in the factory car to the hospital.  The doctors failed to resuscitate him.  There was no evidence of any apparent acts of exertion or stress that proceeded the death. 

21.There was no post mortem autopsy performed in Dongguan, China, neither was it done in Hong Kong.  The two pathologists failed to come to any conclusion of the cause of death due to insufficient information.  The Court is faced with the same problem. 

22.In the case of Leung Koon-chun on behalf of the dependants of Chow Kam-wing, deceased v. City Act Trading Limited t/a Bright Light Engineering Co. DCEC 915 of 2000, the post mortem examination report on the deceased and the evidence of the deceased’s doctor who treated him for a number of years before his death were produced as evidence.  H.H. Judge Carlson made his findings based on the factual background with the assistance of the post mortem investigation report and the opinions of two chest experts before he reached the conclusion that the deceased had died as a result of pre-existing health condition. 

23.I agree with Mr. Chan, counsel for the Respondent, that in an application under S. 5(1) of the Ordinance, the injury should be separated from the accident.  I refer to the judgment of Lord Clyde in the case of Chief Adjudication Officer v. Faulds at p. 1049F where he held:

“Where injury is caused by an event external to the claimant, to the happening of which he has played no part, such as his being hit by something falling upon him where he has done nothing to set it in motion, the event constituting the accident can be readily distinguished from the injury which it caused. Where the accident comes about through the claimant’s own activity, the distinction is more subtle, but still identifiable. In Fenton’s case the workman ruptured himself while endeavouring to turn the wheel of a machine which was out of order, Lord Lindley observed, at p. 455:

“It is not straining language but using it in its ordinary sense to describe the personal injury as caused by an accident.  The personal injury was the rupture; the cause of it was the unintended and unexpected resistance of the wheel to the force applied to it.”

24.In the present case, there is insufficient evidence to conclude the Deceased died from an accident that caused the injury.  The two experts reported that “there is no evidence to suggest that the death was due to a pre-existing congenital or hereditary condition or related to his previous medical conditions”.  Neither did they find there was evidence to suggest the death was a result of his employment. 

25.From the evidence of Mr. Wu, the Deceased’s colleague at work as a merchandiser, the Deceased had meetings with clients in the morning and was working in the office after lunch.  Mr. Wu had the same type of boxed lunch as the Deceased and Mr. Wu did not feel unwell after consuming it.  He also found the Deceased’s appearance normal on the day of his death.  Though there was a suggestion from the Applicant, Mrs. Cheung, that there was a lesion on the bridge of the Deceased’s nose when she identified his body, Mr. Wu’s statement and evidence failed to mention a lesion on the nose when they found him in the toilet.  Neither did the medical report from the Dongguan Changan Wusha Hospital make any reference to it.  The two pathologists took notice of it, but only commented that the Deceased appeared to have collapsed very quickly.  Unfortunately, there was no evidence other than the aforesaid to suggest there was an accident that caused injury to the Deceased which led to his death.  There was no suggestion of a slippery floor in the toilet, stress induced by over-work or exposure to dangerous substance at work etc, that could have triggered the accident.  There is a difference between someone ‘dying accidentally’ and ‘dying due to an accident’. 

26.I am not satisfied that the Applicant has proved on a balance of probability that there was an accident that caused or contributed to the Deceased’s death.  Even though the Deceased’s death had taken place in the course of employment, the element of accident under S. 5(1) has to be shown before S. 5(4), the deeming provision, is considered.  The circumstances are similar to Yu Chun-sheung v Chow Sang Sang Nominees Ltd. DCEC 402 of 1994 where H.H. Judge Kilgour found no evidence to guide him to the fact that an accident may have led to the demise of the Deceased whose badly decomposed body was found in quarters provided by his employer.  Due to the decomposition of the body, no cause of death was ascertained in a post mortem investigation.  

27.In the present case, I reluctantly come to the same conclusion due to the inadequate information available on the Deceased’s cause of death.  There is therefore no need to consider if the accident arose out of the employment.  For the aforesaid reason, the application is dismissed.

Costs nisi

28.Costs to follow the event.  The Respondent’s costs will be borne by the Applicant to be taxed if not agreed with certificate for counsel.  The Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.  The cost order nisi will be made absolute should there be no application within 14 days of the judgment.

Parties:

Mr. Ashok K. Sakhrani instructed by Messrs. Paul C.K. Tang & Co. assigned by Director of Legal Aid for the Applicant.

Mr. Samuel Chan instructed by Messrs. Clyde & Co. for the Respondent.

Applicant's appeal to Court of Appeal dismissed. Please refer to CACV253/2010 dated 4 July 2011