Sit Wing Yi Sibly v. Berton Industrial Ltd

CACV 253/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 253 OF 2010

(ON APPEAL FROM DCEC NO. 733 OF 2009)

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BETWEEN

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Before: Hon Cheung CJHC, Tang VP and Yuen JA in Court

Date of Hearing: 24 May 2011

Date of Judgment: 4 July 2011

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JUDGMENT

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Hon Cheung CJHC:

1.This is a sad case. However, for the reasons given by Tang VP and Yuen JA, I agree that the appeal must be dismissed.

Hon Tang VP:

2.The Deceased worked as a merchandiser at the Respondent's office in Dongguan.  On 13 July 2007 he had business meetings until his lunch break and sometime thereafter he went to the toilet.  He was found there at about 3.30 pm slumped on the ground with blood in his mouth and nose.  He was taken to a local hospital but was found to have died before arrival.  Unfortunately, there was no autopsy before cremation took place. 

3.In a "Deceased's Medical Report" issued by the Donggan Changan Wusha Hospital dated 13 July 2007, the cause of death was given as sudden cardiac death.

4.A Supplemental Medical Report dated 25 February 2010 explained:

"5.   As the autopsy was not performed on the corpse of Cheung Ka Wai, including his heart after declaring the death of Cheung Ka Wai, therefore I am not qualified to certify the cause of the death.  Therefore in the Patient Report for the Deceased, I stated that the cause of the death was sudden cardiac death in the column of the Administrative Office, Discussion and Opinion, which means Cheung Ka Wai died after his heart stop beating due to the unknown cause."

5.The Deceased was 37 when he died.  He was survived by his widow and a son who was 3 years old at the time.  The Applicant applied for compensation on behalf of herself, her son and other members of the Deceased's family. 

6.For the purpose of the application, two experts in pathology, namely, Professor Annie Cheung and Dr S L Beh, were instructed by the Applicant and the Respondent respectively to investigate the cause of death on the basis of the medical history and records of the Deceased.  Their report has been summarised by the learned judge (District Judge H C Wong) as follows:

"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.'"

7.In order to succeed, as the learned judge said, the Applicant has to satisfy s 5 of the Employees' Compensation Ordinance ("the Ordinance") which provides as follows:

"(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 is 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;"

8.Section 5 uses the compound expression "injury by accident", which was used in s 1 of the Workmen's Compensation Acts 1897 as well as in s 1 of the Workmen's Compensation Act 1925.  This expression has been the subject of numerous decisions.

9.Mr Sakhrani, for the Applicant, relied principally on Fenton v J Thorley & Co Ltd [1903] AC 443, where Lord Macnaghten said:

"… Now the expression 'injury by accident' seems to me to be a compound expression.  The words 'by accident' are, I think, introduced parenthetically as it were to qualify the word 'injury,' confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design.  Then comes the question, Do the words 'arising out of and in the course of the employment' qualify the word 'accident,' or the word 'injury,' or the compound expression 'injury by accident'? I rather think the latter view is the correct one. … I come, therefore, to the conclusion that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed."

10.Lord Lindley also said at page 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 which 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.  The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events."

11.Fenton was followed by Clover, Clayton & Co Ltd v Hughes [1910] AC 242 where Lord Loreburn LC said at page 244:

"What, then, is an 'accident'?  It has been defined in this House as 'an unlooked for mishap or an untoward event, which is not expected or designed.'  All the Lords who took part in the decision of Fenton v. Thorley [[1903] AC 443] agreed in substance with this definition in Lord Macnaghten's speech.  I take that as conclusive."

12.Lord Macnaghten added that the argument that:

"… There must be … an accident and an injury: you are not to confuse the injury with the accident. … (Fenton) … swept away these niceties of subtle disquisition and the endless perplexities of causation.  It was held that 'injury by accident' meant nothing more than 'accidental injury' or 'accident,' as the word is popularly used. …"

13.Mr Samuel Chan, for the Respondent, has suggested that in Fife Coal Co Ltd v William Young [1940] AC 479, which was concerned with the Workmen's Compensation Act, Lord Atkin had expressed a different view.

14.In Fife Coal, a packer in a coal mine whose work necessitated continual kneeling had acquired a condition described as "dropped foot" and became totally incapacitated.  The arbitrator found that:

"… the incapacity was due to repeated pressure on the outside of the right knee when he was working in a crouching position in the course of his employment; that incapacity from dropped foot arising in this manner was a comparatively rare condition; and he held that the claimant's incapacity did not result from personal injury by accident arising out of and in the course of his employment, …"

and dismissed the claim.  The workman succeeded on appeal to the Court of Appeal whose decision was upheld in the House of Lords.

15.It is against such background that the judgments in Fife Coal should be considered.  The principal judgment was given by Viscount Caldecote LC, , which had the concurrence of Lord Russell of Killowen and Lord Thankerton (page 490) and probably Lord Romer as well (page 490).

16.Viscount Caldecote LC traced "a gradual but steady extension" of the meaning of the phrase "injury by accident" and said:

"It is easy to be wise after the event, but to-day [Fenton] seems a very clear case".  page 483

17.But the Lord Chancellor went on to say, whilst commenting on decisions in the Court of Appeal involving what were described as "beat hand" and "beat knee" that:

"There is no reason to doubt the correctness of the decisions in the three cases I have last mentioned.  In all of them the facts were such as to make it impossible to identify any event which could, however loosely, be called an accident.  In these cases the workmen failed, not because a disease was outside the purview of the Workmen's Compensation Act altogether, but because the burden of proof that there had been an accident was not discharged."  484

18.Later the Lord Chancellor said at 486:

"… In Ormond v. Holmes & Co., Ld. [(1937) 30 BWCC 254], the workman was bound to fail, having regard to the finding that the work on which he was actually engaged when he collapsed from a stroke following high blood pressure 'neither caused nor contributed to nor accelerated 'the second stroke.'  The case is merely an illustration of the necessity of establishing facts which justify a finding that the injury was due to some specific unlooked-for mishap or untoward event.  Where those facts are not proved the workman cannot succeed, and it makes no difference whether the incapacity is due to such an injury as a rupture or sprain, or to a disease.  For instance, Partridge, Jones and Paton, Ld. v. James [[1933] AC 501] was a case where the workman's widow succeeded, in spite of the fact that the workman was suffering from a severe arterial disease.  The basis of the decision that there had been injury by accident was that the heavy work in which he was engaged produced a fatal attack of angina pectoris.  Lord M'Laren's statement, to which I have already referred, was once more quoted with approval in the only opinion which was given in your Lordships' House."

19.It was in that context that Lord Atkin said that:

"… apart from external accident there may be what no doubt others as well as myself have called internal accident" page 489

and that

"… a physiological change brought about by an undesigned untoward event happening in the employment"

might suffice.  page 488.

20.However, he went on to explain cases where:

"A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases it is hardly possible to distinguish in time between 'accident' and injury; the rupture which is accident is at the same time injury from which follows at once or after a lapse of time death or incapacity. But the distinction between the two must be observed. …"

21.Because:

"They may be 'accidental,' but if that accident is not related to the employment it matters not."  page 489.

22.In the present case, the learned judge found in favour of the Respondent on the basis of the decision of the House of Lords in Chief Adjudication Officer v Faulds [2000] 1 WLR 1035.  Faulds was concerned with the Social Security Contributions and Benefits Act 1992 (the "Benefits Act"), s 94(1) of which 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 course of his employment, being employed earner's employment."

23.Since the National Insurance (Industrial Injuries) Act 1946 ("the 1946 Act") the expression "personal injury by accident" has been replaced by "personal injury caused by accident".  s 7 of the 1946 Act required insurance for:

"… all persons employed in insurable employment … against personal injury caused on or after the appointed day by accident arising out of and in the course of such employment."

24.In Faulds, the claimant a senior fire officer who had served for 27 years in the fire brigade; he was discharged on medical grounds after being diagnosed as suffering from post-traumatic stress disorder.  The Extra Division of the Inner House of the Court of Session held that the claimant's injury was caused "by accident" due to exposure to shocking sights, that the accident and the injury merged indistinguishably and that there was no need to make a finding of an "accident" which was a distinct event separate from and preceding the injury.  The decision of the House of Lords, as taken from the head notes, is that:

"… an essential requirement for satisfying such a claim was 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."

25.This is what the learned judge said of the judgment of Lord Hope of Craighead:

"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 untoward 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."

26.Mr Sakhrani submitted that the learned judge had overlooked the difference in language between the earlier Workmen's Compensation Acts (on which our s 5 is based) and the language first adopted in the 1946 Act.

27.Mr Sakhrani pointed out that Lord Diplock in R v National Insurance Commissioner, Ex parte Hudson [1972] AC 944 at 1008 had said:

"Section 5 (1946 Act), which contains the general description of and conditions of entitlement to each of the three benefits, avoids the use of the compound phrase 'personal injury by accident' which had appeared in successive Workmen's Compensation Acts since 1897.  It is reasonable to suppose that the change in phraseology was deliberate — though there is an isolated lapse into the expression 'personal injury by accident' in section 48 (2) of the statute."

28.On the other hand, Mr Chan submitted that in Faulds, Lord Clyde had considered the earlier cases, including Fenton and in Clover, and said, before quoting what Lord Atkin said in Fife Coal (see para 20 above):

"Whatever the position may have been in the early years of the development of this branch of the law it seems clear that the law continued to recognise the distinct concepts of injury and accident."  page 1050B

29.Lord Clyde then added:

"In the performance of physical work the making of what may for others be an ordinary exertion but which, on account of some disease or weakness or other predisposition is excessive for the individual undertaking it may constitute an accident in his case. But here again the distinction between accident and injury can be identified." 1050D

30.Mr Samuel Chan also relied on Secretary of State for Work and Pensions v James Scullion [2010] EWCA Civ 310 (Official Transcript 23 March 2010).  There, the claimant, a fit and active ex-serviceman was employed as an accountant but because of the illness of a colleague and promotion of another, had to carry out their work (as planning manager and stores manager) as well.  The strains on him were also increased by an unit relocation during that period.  He was found collapsed at work by a person working in the next room who heard a loud crash.  He was not breathing and had no pulse.  He was given oxygen, and was found to have suffered a cardiac arrest, from which he fortunately recovered.  But he was unable to resume work and was retired on ill-health grounds.

31.On such facts, he was refused a declaration that he had suffered an industrial accident under s 29(2) of the Social Security Act 1998 because:

"It has not been established that there was either an event which in itself is identifiable as an accident or a particular occasion on which personal injury was suffered by Mr Scullion which would constitute an accident."

32.In the Court of Appeal, Pill LJ in his judgment discussed Faulds as well as "earlier cases of high authority which were considered in Faulds" and rejected the submission that the cardiac arrest suffered by the claimant on 25 March 2002 was itself capable of constituting an "accident" within the meaning of the 1992 Act.

33.Aikens LJ also discussed the older authorities and said:

"40.  I have gone through all those cases because, to my mind, if they are considered on their own, they might appear to support the proposition that the Commissioner sets out in paragraph 13 of his decision, viz. that the 'time honoured' definition of 'accident' for the purposes of the Workman's Compensation Acts was 'an unlooked-for mishap or an untoward event which is neither expected or designed', although that precise phrase is not used in any of the speeches I have quoted.  The judges, including many in the House of Lords, seem virtually to have concluded that the phrase 'personal injury by accident' in the legislation under consideration could be interpreted as 'accidental injury'.

41.   But then came the decision of the House of Lords in Fife Coal v William Young [1940] AC 479.  The respondent to the appeal was a packer in a coal mine and his work required him to kneel continuously.  As a result he lost power or dorsiflexion in his right foot, which resulted in a condition known as 'dropped foot'.  That was caused by pressure on the peroneal nerve, which prevented dorsiflexion.  He became totally incapacitated.  The First Division of the Court of Session had allowed an appeal from the Sheriff-Substitute of Fife and Kinross, sitting as an arbitrator, who had held that the incapacity had not resulted from personal injury by accident arising in the course of the workman's employment.  The House of Lords upheld the decision of the First Division of the Court of Session.

42.   Viscount Caldecote LC reviewed many of the cases.  He commented that the decision of Ormond v Holmes & Co Ltd (1937) 30 BWCC 254 was 'merely an illustration of the necessity of establishing facts which justify a finding that the injury was due to some specific unlooked-for mishap or untoward event': see page 486.  He concluded that the claimant miner had suffered a 'definite physiological injury in the reasonable performance of his duties and as a result of the work he was at the time of the injury engaged in': see page 487.

43.   Lord Atkin took the same view of the facts.  But he went on to make two important remarks.  First, he accepted that the concept of 'accident' within the meaning of the Workmen's Compensation Acts had undoubtedly been enlarged in 'the more recent decisions': see page 488.  Secondly, he said it was necessary to emphasise the distinction between 'accident' and 'injury', which, he said, 'in some cases tends to be confused'.  Pill LJ has already quoted the rest of the relevant passage from Lord Atkin's speech at paragraph 16 of his judgment, so I need not do so here.

44.   This necessary distinction between 'accident' and 'injury' was further emphasised by Lord Porter in Roberts v Dorethea Slate Quarries Co Ltd [1948] 2 All ER 201.  The workman had become incapacitated by silicosis as a result of a continuous process going on substantially from day to day over a period of years.  He argued that his incapacity was within the category of 'personal injury by accident' and so covered by section 1 of the Workmen's Compensation Act 1925.  The House of Lords held that the incapacity could not be said to be the result of an 'accident' or a series of 'accidents', within section 1 of the 1925 Act.  Lord Porter drew a distinction between those cases where a single accident or a serious of specific and ascertainable accidents was followed by a resultant injury and those cases where there was a continuous process.  In the first the resulting incapacity will be held to be an injury by accident; but not in the second: page 205.  Lord Simonds' speech is to the same effect: see particularly his conclusion at page 208C."

34.Aikens LJ then concluded:

"… It seems to me that, even before the House of Lord's decision in that case (Faulds), there is a clear line of House of Lords authority from the Fife Coal case onwards in which judges of the highest authority had insisted on the distinction between the 'accident', which must be external, and the resulting 'injury' to the claimant, whether the type of personal injury suffered by the claimant was of an expected type or an unexpected type. …"  Para 49

35.I believe that is what Lord Hope had in mind when he said in Faulds:

"… the sustaining of an unexpected personal injury caused by an expected event or incident may itself amount to an accident."  [emphasis supplied]  1043D

36.On the facts, the learned judge had reluctantly come to the conclusion that the Applicant was unable to show that the Deceased's death was due to an accident.  She said:

"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." 

37.Mr Sakhrani did not complain about the learned judge's findings of fact.  Rather, he submitted that the learned judge had erred because she thought the Claimant had to show that there had been an accident.  In the present case, I agree with Mr Sakhrani that, on the available medical evidence, unlike Chow Kam-wing, there is no evidence that the Deceased had suffered from any disease which could have led to his sudden death and the cause of death is unknown.  But there is also no evidence of any accident or incident which had caused or led to his death.  On the authorities, s 5(1) required that the death must at least be "brought about by an undesigned untoward event happening in the employment".  per Lord Atkin in Fife Coal.

38.I regret to say I agree with the learned judge's conclusion on the facts and the law.  I must dismiss the appeal.

Hon Yuen JA:

39.Much as I sympathise with the Applicant, I have to agree that the appeal must be dismissed. 

40.As I understand his submissions, Mr Sakhrani is essentially saying this: the Deceased’s death was not accounted for by his known medical history, and consequently it was an unexpected event, and thus an “accident”; and since it occurred during his working hours, it arose “in the course of” employment.  By virtue of s.5(4), it should also be deemed, in the absence of evidence to the contrary, also to have “arisen out of” that employment.

41.It seems to me that that argument elides the concepts of “injury” and “accident” in the phrase “injury by accident”.  The unexpectednature of the “injury” itself does not constitute the act or event or occurrence of a mishap which is the “accident”.  An applicant for compensation must show that there has been an accident that produced the injury (see Fife Coal at 486 and Fenton v Thorley at 453: “an unintended and unexpected occurrence which produces hurt or loss”). 

42.Death caused by disease alone would not qualify for compensation even if the disease was unknown (and thus unexpected).  There would have to be an acceleration of the death by a particular (even if not unusual) act of exertion in the course of employment - in which case the death may be said to have been caused by an accident (Ormond v C D Holmes & Co Ltd at 800).  Even if there was an “internal accident”, i.e. a physiological change invisible from outside the body (such as a rupture of an aneurysm), it must still have been brought about by “an undesigned untoward event happening in the employment” (Fife Coal p.488).        

43.Applying the authorities to the facts of the present case, the Deceased’s death was the injury, but to obtain compensation, the Applicant needed also to prove a specific mishap which produced the death (the accident). None was proved. According to the Deceased’s colleagues, he had spent an ordinary working day in his clerical job, and there was no proof of any particular acts of exertion or stress (see the judgment at para.20). 

44.The court cannot speculate that there must have been an act or event or occurrence of a mishap which produced the injury.  Although the forensic pathologists who had examined the Deceased’s medical history were of the opinion that the diseases he suffered from would not have led to his dying so suddenly, the records ended a number of months before his death.  So could the Deceased’s death have been caused by a recently-contracted disease (eg the effects of a virus perhaps exacerbated by the diseases he had suffered from)?  One does not know one way or the other as there was no autopsy.  So in this case the court cannot even surmise that there must have been some act or event or occurrence of a mishap by eliminating the possibility of death by disease.

45.The burden of proving “injury by accident” was on the Applicant.  In the absence of proof of any specific act or event or occurrence of a mishap which produced the death, I would have to agree that the suddenness of the death by itself does not satisfy the requirements of s.5 and the appeal must be dismissed.  

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

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

Please refer to FACV3/2012 for the relevant appeal(s) to the Court of Final Appeal.