FUNG WING FUK v. FU MING MANAGEMENT CO LTD (IN LIQUIDATION)

DCEC 967/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 967 OF 2005

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JUDGMENT

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1.  This is a claim for employees' compensation arising out of an alleged accident on 10 August 2003.

2.  The Applicant was a minibus driver.  On the day of the alleged accident, he claims that he was driving a minibus in Ma On Shan area when a foreign body flew into his right eye.  Just when the Applicant tried to rub his eye and to ward off the foreign body, the Applicant rammed into the vehicles in his front.  By that time, the Applicant did not suffer any discomfort in his right eye.  However at about 5 hours later, there were tears coming out of the Applicant's right eye.   The Applicant sought medical treatment on the next day.  Unfortunately, there was infectious corneal ulcer in the right eye.  Despite various treatments, the Applicant’s condition worsened and as a result he lost the eyesight of his right eye.

3.  There is no dispute that the Applicant was an employee working for the Respondent at the time of the alleged accident, and the parties are also able to agree on the quantum of the Applicant's claim in the sum of $444,451.60.  The only issues in the present case are therefore:

(i) whether there was an accident involving the invasion of a foreign body into the right eye as alleged by the Applicant; and

(ii) if there was such an accident, whether the loss of vision of the Applicant’s right eye was caused by the invasion of the foreign body or by the improper or unhygienic use of the disposable contact lens by the Applicant.

4.  Both are factual issues and I will deal with them in turn.

The occurrence of the accident

(i) The evidence of the Applicant

5.  The Applicant himself is the only factual witness.  He was born in 1958 and he received education up to primary six level.  Prior to the accident, the Applicant had 20 odd years of driving experience.  Before working for the Respondent in 2003, he was a Red Minibus driver.

6.  The Applicant was suffering from long-sightedness.  He had been wearing contact lenses on and off for about 20 years.  The Applicant used disposable contact lenses.  However, instead of disposing the lenses after wearing for one day, the Applicant had the habit of cleaning the contact lenses and re-wore them on the next day.

7.  The Respondent was a company which managed Green Minbuses running on certain regulated routes.  The Applicant was mainly responsible for driving minibus in the night shift from 11 p.m. to 6 a.m. in the Sheung Shui to Kwun Tong route.  However, when there were insufficient drivers, the Applicant would also drive in the afternoon shift from 3 p.m. to 11:00 p.m. in the Chinese University to Sam Pui Chau route.  That was actually what happened in the few days before the alleged accident.

8.  On 8 August 2003, the Applicant started to work in the afternoon shift.  As there were insufficient drivers, he continued to work in the night shift and so he finished work in the following day at 6:00 a.m.  For 2 consecutive days, the Applicant had been wearing contact lenses for as long as 15 hours a day.  After finishing work, his eyes were tired and dry and he put the contact lenses in the contact lens box. 

9.  On the day of the alleged accident (ie. 10 August 2003), the Applicant was assigned by the Respondent to work in the afternoon shift in place of another colleague, and he was driving the minibus in the Chinese University to Sam Pui Chau route.  He started driving at about 4:00 p.m.  As his eyes were tired after wearing contact lenses for long hours the previous few days, the Applicant was only wearing spectacles on that day.  At about 6:30 p.m., his minibus was in On Chiu Street in Ma On Shan, and he stopped in front of a red light.  When the traffic light turned green, he started to drive forward slowly.  Just at that particular moment, the Applicant claims that there was a foreign object flying into his right eye.  As a natural reaction, the Applicant used the right hand to rub his eye.  However, due to such momentary loss of concentration, the Applicant’s minibus rammed into the back of the vehicle in front of him, which in turn caused that vehicle to collide with another vehicle in the front.  After the collision, the Applicant agreed to pay compensation of $1,000 to each of the two drivers.  According to the Applicant, there was no apparent discomfort or epiphora (ie. watery discharge) shortly after the accident.

10.  After the collision, the Applicant drove the minibus back to the Chinese University terminal and told the station officer about the collision.  He then resumed his work.  At about 11:30 p.m., the Applicant found that there was epiphora in the right eye.  At about 3:00 a.m., he informed Mr. Tang, the manager of the Respondent, about the alleged discomfort in his eye, and he was allowed to leave earlier to take a rest.

11.  After waking up at about 5 p.m. to 6 p.m. on 11 August 2003, the Applicant’s right eye was painful and he then went to see a private doctor Dr. Simon Wong.  After the examination, Dr. Wong told him that his eye was infected and he need to take some eye droplets.  The doctor also advised him that if the condition of his eye did not improve, he had to seek emergency treatment from hospital.

12.  After waking up the next day, his right eye was very red.  The Applicant therefore went to Tuen Mun Hospital for emergency treatment.  He was transferred to the Eye Specialist Clinic for consultation, and thereafter he was hospitalised in Tuen Mun Hospital until 29 September 2003.

13.  The Applicant was granted sick leave from 11 August 2003 to 2 August 2005, and he was assessed by the Employees’ Compensation (Ordinary Assessment) Board to have suffered 50% loss of permanent earning capacity.

(ii)     Creditability of the Applicant’s evidence

14.  The first thing I have to decide is whether the Applicant’s evidence about the alleged accident is true, and one of the relevant considerations was how the foreign body had flown into the right eye of the Applicant.

15.  There is no dispute that the air-conditioning system of the minibus was turned on at the time of the alleged accident.  That notwithstanding, the Applicant alleges, the driver’s seat window, which was a sliding window, was partially opened.  The Applicant estimates that the gap of the opening was about 4 inches wide.  According to the Applicant, he had opened the window notwithstanding the air-conditioning was on because that made it cooler for him and because the passengers were sweaty and smelly.

16.  Ms. Lau, counsel for the Respondent, attacks the creditability of the Applicant’s evidence on the ground that his justification for opening the window in the hot summer month despite the air-conditioning in the minibus is quite unbelievable.  Further, it was most unlikely that an airborne  particle of a sufficient size to be visible to the naked eye could have been blown into the minibus through a gap of just 4 inches wide in the driver’s window, passed through the spectacles worn by the Applicant and entered his right eye.  However, despite that the chance of a particle entering the Applicant’s right eye under such kind of circumstances was slim, the medical experts of both parties agree that such possibility still existed.  Hence I would not dismiss the Applicant’s evidence simply because of such argument.  Further, whether opening the side-window on the day of the accident was very much a matter of personal preference, and I see nothing unreasonable for the Applicant to have done so on the day of the alleged accident.

17.  However, there is one major inconsistency in the Applicant’s evidence.  According to the oral testimony of the Applicant at the trial, he was wearing spectacles at the time of the alleged accident.  But according to the first joint medical report dated 23 December 2008, the Applicant had told both experts that he was wearing neither contact lenses nor spectacles at the material time.  According to the Respondent’s expert,  Dr. S. H. Cheung, whether the Applicant was wearing contact lenses or spectacles was an important fact for their investigation about the cause of the Applicant’s infectious corneal ulcer, and so he is absolutely certain that the record he made in the medical examination was accurate.

18.  During cross-examination, the Applicant cannot explain why there is such inconsistency in his evidence.  He maintains that he was wearing spectacles at the time.

19.  As I see it, the Applicant at all material time should have been aware of the significance of such fact as to the investigation about the causes of the accident and the infection.  If he was wearing contact lenses at the material time, it may affect the experts’ opinion about the cause of the infection.  On the other hand, if the Applicant was wear spectacles, it may affect the likelihood of a foreign particle flying into the eye of the Applicant.  In such circumstances, how could the Applicant have made such a serious mistake in this regard?  I have asked myself many times whether this could have been a genuine mistake on the part of the Applicant.  In the end, it is very difficult for me to accept that this was indeed the case.

20.  There is also another serious inconsistency.  According to the oral testimony of the Applicant at the trial, the last time he wore the contact lenses was 6 a.m. on 9 August 2003 after completing driving for 2 shifts.  This is different from what he told the 2 medical experts which was 8:00 p.m. on 9 August 2003.  Undoubtedly, the timing is important for the investigation about the cause of the infection and it is difficult to understand why the Applicant had made another mistake here.  These inconsistencies  certainly undermine the creditability of the Applicant’s evidence.

21.  According to the medical records kept by the private practitioners, Dr. Simon Wong, and Tuen Mun Hospital, the Applicant mentioned about the flying of the foreign body into his eye.  Ms. Lee, counsel for the Applicant, therefore submits that it is quite inconceivable for the Applicant to have made up the story about the foreign body injury as early as in August 2003 when he, by that time, did not know that the incident would have such a devastating effect.

22.  However, it is clear that the Applicant had rammed into the back of the vehicles at the time of the alleged accident.  In order to show that the accident was not caused by his own negligence, the Applicant had to make up an excuse to the drivers of the vehicles he rammed into and later to the manager of the Respondent.  In my judgment, this was the very reason why the Applicant had stuck to such version of events even in the beginning.  In view of the reservation I have about the creditability of the Applicant’s evidence, I reject his evidence on the balance of probabilities and the Applicant has therefore failed to prove his case about the occurrence of the accident.

Cause of the infectious corneal ulcer in the Applicant’s right eye

23.  There is no dispute that, if the court were to disbelieve the Applicant about the occurrence of the accident, the Applicant’s claim for employees’ compensation should be dismissed.  However, in the case that I am wrong on the said factual issue, I also find that the Applicant has failed to discharge the burden of proving that the alleged foreign body injury was the cause of his infectious corneal ulcer.

24.  The Applicant sought treatment from Tuen Mun Hospital on 12 August 2003.  According to the medical report of Dr. Yiu Po Fat of the Department of Ophthalmology of Tuen Mun Hospital, there was “an angry looking infectious corneal ulcer [in the Applicant’s right eye] involving half the cornea with hypopyon (ie. collection of pus within the anterior chamber of an eye)”, also known as “right eye microbial keratitis”.  No foreign body was found.  Vision was hand movement and 6/9 for the right and left eyes respectively.  He was admitted to Tuen Mun Hospital for intensive oral and topical antibiotics treatment.  No intraocular foreign body was demonstrated with the CT scan of the orbits.  Corneal scrapping was performed and it showed a heavy growth of a kind of bacteria known as “pseudomonas aeruginosa”  (“PA”).

25.  The infectious corneal ulcer was resolved with medical treatment, but there were complications in the right eye including the formation of an extensive corneal scar, anterior segment disorganisation, complicated cataract (ie. opacification of the crystalline lens of an eye), scleral thinning and secondary glaucoma.  He received numerous operations and procedures to remedy these complications including 2 corneal grafts.  However, the Applicant’s right eye still suffered from failed corneal grafts and uncontrolled glaucoma.  Examination on 13 November 2008 showed that the Applicant’s right eye was virtually blind.  There were also raised intraocular pressure and extensive scarring and vascularisation of the corneal graft.  Both medical experts agree that these are caused by the right eye microbial keratitis which was diagnosed on 12 August 2003, and the total loss of visual function in the right eye is now permanent.

26.  The contact lenses worn by the Applicant and the contact lens box were sent to the laboratory of the Hospital Authority for investigation on 18 August 2003, and it was found that there was a heavy growth of PA and another kind of bacteria known as “serratia marcescens” (“SM”).  It was also found that the PA present in the corneal scrapping and in the contact lenses and contact lens box were sensitive to exactly the same antibiotics and so it was likely that they were of the same strain.

27.  The medical experts, however, disagree as to the likely cause of the microbial keratitis.  The Applicant expert, Dr. Paul Cheung, is of the view that the cause was the foreign body injuryon 10 August 2003; while the Respondent’s expert, Dr. S. H. Cheung, is of the opinion that improper use of the contact lens and contamination of the contact lens were the likely causes.  The experts spent 3 days at the trial giving very detailed medical evidence and were cross-examined at length about the cause of the keratitis.

(i)      Dr. Paul Cheung’s opinion

28.  Dr. Paul Cheung obtained his MBBS in 1980 from the University of Hong Kong.  Thereafter, he obtained specialist qualifications in ophthalmology.  Before he went into private practice in 1991, he had worked in public hospitals in Hong Kong for many years specialising in ophthalmology.  From his experience in those years, he found PA corneal infections were much more common than SM corneal infections, and monomicrobial infections were also more common than polymicrobial infections.

29.  There are two undisputed facts and observations contained in the first joint medical report: (i) the Applicant’s contact lenses were found to be contaminated during a subsequent laboratory examination; and (ii) the PA in the Applicant’s contact lenses and the PA in his contaminated right eye were “most likely from the same origin” as they were tested to be sensitive to exactly the same antibiotics.  These factors tend to suggest that contact lens contamination was the cause.  In order to justify that this was not the case, Dr. Paul Cheung explained in the 2 joint medical reports that the Applicant’s right eye was probably sterile when he last removed the contact lenses after work on 9 August 2003.  The contact lenses had become contaminated on 9 August 2007 at the “garage/petrol station” only after the Applicant had removed them after work.  Hence, the bacteria that infected his eye were not from the contact lenses.

30.  On 10 August 2003, the intrusion of the foreign object probably caused a disturbance of the corneal epithelium which was why there was not much discomfort in the eye by that time.  There was no immediate abrasion of the cornea, otherwise the Applicant would have experienced immediate symptoms by that time.  The Applicant then returned to work in the garage, and it was there where the PA got into the right eye of the Applicant.  In other words, there was no bacterium in the right eye in the period between the time of the taking off of the contact lenses on 9 August 2003 and the time when the Applicant returned to the garage after the collision on 10 August 2003.  He then experienced right eye epiphora at around 11:30 p.m. on 10 August 2003, and this was probably the time when his eye started to become infected by the PA, the same kind of bacteria from the garage that had got into the contact lenses the day before.  The disturbance of the corneal epithelium caused by the foreign body injury had compromised the resistance of the cornea and resulted in the infection by the opportunistic bacteria.  Obviously, this theory or explanation sits well with the observation that the PA found in the Applicant’s contact lenses and in the right eye were of the same strain.

31.  At the trial, Dr. Paul Cheung’s theory is slightly different.  Since the PA found in the Applicant’s contact lenses and the right eye were of the same strain, Dr. Paul Cheung in the joint reports explained that the PA all came from the minibus garage.  However, in order to determine the different strains of PA, the PA bacteria were tested based on their sensitivity to different antibiotics.  At the trial, Dr. Paul Cheung agrees that it is common for PA from different sources to be sensitive to the same antibiotics, and so the PA found in the contact lenses and in the right eye might have come from different sources.  Without then the need to justify that all the PA came from the same source, Dr. Paul Cheung at the trial suggests that the PA that caused the microbial keratitis probably came from the foreign body which flew into the eye at the time of the alleged accident.  In other words, Dr. Paul Cheung changes his opinion about the source of the PA that caused the infection.

32.  Despite such change in the opinion, Dr. Paul Cheung does not explain why foreign object contamination, as opposed to contact lens contamination, was the more probable cause of the keratitis.  It is only at the trial that Dr. Paul Cheung first mentions about the so-called “two versus one bacteria” factor in support of his theory.  As such factor is a matter of great dispute at the trial, this factor deserves a separate consideration in the latter part of this judgment.

(ii)     Dr. S. H. Cheung’s opinion

33.  Dr. S. H. Cheung obtained his MBBS from the University of Cambridge in 1984.  Prior to that, he had in 1981 obtained a BA in Pathology also from the University of Cambridge, which focused on the study of the mechanism of diseases including the interplay between micro-organisms and the human body.  Since 1988, he has obtained qualifications and has specialised in ophthalmology.

34.  According to Dr. S. H. Cheung, even assuming that there was a foreign object flying into the Applicant’s right eye on 10 August 2003, contact lens contamination was the more probable cause of the keratitis.  It is common ground that when a foreign body flies into a human eye, it may not always cause damage or erosion to the cornea and the tears would simply wash off the foreign body.  On the other hand, unlike most disposable contact lens users, the Applicant cleaned and re-wore the disposable contact lenses after daily use.  This was a very unusual habit, and according to Dr. S. H. Cheung, if the Applicant wore disposable contact lenses for long hours and reused them on the next day, the Applicant was “asking for trouble” himself.

35.  Dr. S. H. Cheung explains that the cornea depends on the lubricating and protective effects of the natural tears and an adequate supply of oxygen to be healthy.  Contact lens wear interferes with the supply of atmospheric oxygen to the cornea and also causes stagnation of tear flow between the lens and the corneal surface.  This can make the cornea very dry and lead to micro or punctuate epithelial erosions, compromising the integrity of the surface of the epithelium and thus allowing bacteria to adhere to the cornea and multiply and colonise the eye.  In fact, the Applicant mentions that his eyes were very tired and dry after wearing contact lenses for as long as 15 hours a day for the previous 2 days before the alleged accident.

36.  The multiplication phase is the incubation phase.  Once the bacteria have multiplied to a certain level, they will start to invade and produce a substance to breakdown the tissue barrier of the tissue cells in order to obtain nutrients.  It is only when the invasion starts that the infection and the disease process starts.

37.  In the opinion of Dr. S. H. Cheung, there was a good chance that epithelial erosions materialised in the Applicant’s right eye when the eye became very dry as a result of wearing contact lenses for 2 shifts from 8 to 9 August 2003.  According to the medical literature on PA, its incubation period is usually 24-72 hours.  As the infection started at around 11:30 p.m. on 10 August 2003, Dr. S. H. Cheung is of the opinion that foreign body injury could not be the cause of the infection as the time gap between 6:30 p.m. to 11:30 p.m. was too short for the infection phase to start.  The period would become even much shorter if the PA that attacked the eye came from the garage as Dr. Paul Cheung first suggested.  On the other hand, if the Applicant’s right eye was already contaminated by PA on 9 August 2003 when he last wore the contact lenses, whether that be 6:00 a.m. according to the Applicant’s evidence or 8:00 p.m. according to what the Applicant told the 2 experts, then the invasion by the PA starting at 11:30 p.m. on 10 August 2003 was wholly reasonable.

(iii)    “Two versus one bacteria” factor

38.  In the joint medical reports, Dr. S. H. Cheung is relying on the finding that both the PA found in the contact lenses and in the Applicant’s contaminated right eye were of the same strain to support his theory about the cause of the infection.  However, both experts agree at the trial that it is common for PA from different sources to be sensitive to the same antibiotics, and so the fact that the PA found in the contact lenses and the eye were of the same strain is very much a neutral factor.

39.  The timing and the sequence of events arealso not conclusive.  Given the facts that PA bacteria can be present anywhere and the incubation period of bacteria may vary depending on each individual case, it seems that the timing and the sequence of events in the present case may support either theory.

40.  According to Dr. Paul Cheung, the only reason in support of his opinion about the foreign bodyinjury being the more probable cause of the infection is the “two versus one bacteria” factor.  It is common ground that the corneal scrapping done on 12 August 2007 showed heavy growth of PA, whilst the laboratory test of the contact lenses and the contact lens box on or about 18 August 2007 showed a heavy growth of both PA and SM bacteria.  In the opinion of Dr. Paul Cheung, if the cause of the infection was the contamination of the contact lens, both kinds of bacteria found in the lenses and the box should have been present in the corneal scrapping.  The fact that there was only PA present in the corneal scrapping shows that the likely cause was the foreign body injury.

41.  Unfortunately, Dr. Paul Cheung has not mentioned the “two versus one bacteria” factor in support of his theory in the 2 joint medical reports.  By reason of the late revelation of such new argument, counsel and experts for both parties have to conduct considerable research about the medical literature relating to bacteriology during the trial.  When Dr. Paul Cheung is cross-examined as to why he had omitted such important reference in the 2 joint medical reports, he simply says that he did not pay much attention to such factor when he prepared the reports.  However, if that is such a conclusive and supportive factor, I find it extremely strange why there was such important omission, in particular when Dr. Paul Cheung at all material time knew that the Respondent’s expert, Dr. S. H. Cheung, disagreed with his opinion about the cause of the microbial keratitis.

42.  At the trial, Dr. S. H. Cheung disagrees with Dr. Paul Cheung’s opinion about the “two versus one bacteria” factor.  According to Dr. S. H. Cheung, there are a number of variables to explain why PA were the only bacteria found in the corneal scrapping, whereas whatever SM might have been left in the eye, if any, by 12 August 2007 when the corneal scrapping was taken, were too few to be capable of being cultured.

43.  First, assuming that it was a case of lens contamination, it was not known what was the starting dosage of PA and SM bacteria in the eye.  The contact lenses, unlike the eye, were not living tissue.  Even there was a small dosage of PA and SM in the contact lenses on 9 August 2007 when the Applicant last wore them, the PA and SM bacteria on the lenses would have multiplied overtime, growing passively together in a quiescent state.  Thus whatever were the respective dosage of PA and SM on the contact lenses on 9 August 2007, one would expect a heavy growth of both bacteria in the lenses and the box when the laboratory test was conducted on 18 August 2007 which was about 10 days later.  Unlike the contact lenses, the eye is a living tissue.  With tears and blinking, some of the bacteria would have been washed away.  The tears would also contain some antiseptic enzymes which would have killed some bacteria. Further, the body would also have mounted an inflammatory reaction after 8-10 hours of the colonization of the eye by the bacteria, producing white blood cells to engulf the bacteria.  The lymphoid tissues in the limbus of the eye, ie. the boundary between the cornea and the conjunctiva, would also have mounted an antibody response to kill some of the bacteria.  As PA is a more virulent kind of bacteria than SM, the natural defence mechanisms of the eye and the body might have killed off more of the SM than the PA bacteria, in particular the starting dosage of both bacteria might have been small.  Finally, when the Applicant went to see Dr. Simon Wong on 11 August 2003, he was given antibiotic eye drops and ointment which might have killed off more SM than PA bacteria.

44.  There may also be another variable.  According to the experience of Dr. S. H. Cheung in carrying out corneal scrapping, it was usual for the sample-taker to take a sample from a small area in the surface of the cornea.  In other words, it was possible for SM to be present in the other part of the Applicant’s right eye which could not be shown by the corneal scrapping.

45.  Dr. S. H. Cheung also relies on a number of medical literature to show that, despite that both PA and SM bacteria are ubiquitous, cases of mono-bacterial keratitis are far more common than cases of poly-bacterial keratitis.  According to Dr. S. H. Cheung, this supports his opinion that “two versus one bacteria” factor is a neutral factor that does not weight against his opinion about the cause of the keratitis.

(iv)     Finding on the cause of the infectious corneal ulcer

46.  Hence, what is the conclusion?  Having carefully considered the evidence, I must say that I prefer to accept the expert evidence of Dr. S. H. Cheung on the balance of probabilities.  Firstly, in respect of the important argument in support of Dr. Paul Cheung’s theory, ie. the “two versus one bacteria” factor, I find it extreme strange that Dr. Paul Cheung had omitted such important reference in the 2 joint medical reports.  Further, there is some confusion in Dr. Paul Cheung’s evidence about the source of the PA that caused the infectious corneal ulcer suffered by the Applicant.  At first, he explained that the PA came from the garage with a view to justify why the PA found in the contact lenses and in the corneal scrapping were of the same strain.  At the trial, Dr. Paul Cheung then changes his stance and accepts that it is common for PA from different sources to be sensitive to the same antibiotics, and he therefore suggests that the PA that caused the keratitis probably came from the foreign body which flew into the eye of the Applicant.  These omission and confusion certainly undermine the reliability of Dr. Paul Cheung’s evidence.

47.  On the other hand, Dr. S. H. Cheung’s evidence remains unshaken after cross-examination.  I also accept his expert opinion that the “two versus one bacteria” factor is very much a neutral factor.  In fact, prior to the obtaining of the qualifications and the specialization in ophthalmology, Dr. S. H. Cheung had spent one year specialising in the study of pathology and so I accept that his knowledge about bacteriology is sound.  Further, Dr. Yiu Po Fat, a Senior Medical Officer of the Department of Ophthalmology of Tuen Mun Hospital, who was a medical practitioner with more or less the same available information about the medical condition of the Applicant and was aware of the Applicant’s complaint about the foreign body incident, stated in the medical report dated 8 November 2005 that the Applicant’s “clinical picture was compatible with contact lens-related microbial keratitis”.  This also adds weight to the expert opinion of Dr. S. H. Cheung about the cause of the keratitis.

48.  The Applicant had been wearing contact lenses on an off for about 20 years and there is no direct evidence to show that he had failed to clean the contact lenses properly in the few days before the alleged accident.  Under such circumstances, one may argue that, if there was a foreign body flying into the Applicant’s eye on 10 August 2003, it is very difficult to decide which was the more probable cause of the microbial keratitis even based on the expert opinion of Dr. S. H. Cheung.  But in my judgment, if foreign body injury and contact lens contamination were both equally possible causes, the Applicant has simply failed to discharge the burden of proof in the present case.  Further, I accept Dr. S. H. Cheung’s opinion that the Applicant’s habit of reusing disposable contact lenses was most usual.  The Applicant had been wearing disposable contact lenses for long hours for the 2 days prior to the first appearance of the symptoms of the infection.  The Applicant also agrees that his eyes were by that time tired and dry, and so I have reason to believe that there was already erosion in the Applicant’s right eye when the Applicant removed the contact lenses after work on 9^th August 2003.  Hence, I accept that contact lens contamination was actually the more probable cause of the infectious corneal ulcer suffered by the Applicant.

49.  According to Dr. Paul Cheung, even if there was infection already in the eye before the foreign body incident on 10 August 2003, the foreign body injury would have aggravated the infection making it more severe and uncontrollable.  In such circumstances, Ms. Lee says that the foreign body incident was still a substantial contributing cause of the injury, and according to the proposition on causation as laid down in the case of Lee Kin Wai v Ocean Tramping Co. Ltd. [1991] 2 HKLRD 232, the Applicant should still be entitled to claim for employees’ compensation against the Respondent.

50.  I reject Ms. Lee’s argument for the following reasons.  Firstly, Dr. Paul Cheung’s observation is contrary to his own opinion stated in the first joint medical report that the Applicant’s eye was probably sterile before the alleged foreign body incident on 10 August 2003.  Secondly, it is common ground that bacteria would not stay in an uncompromised eye as tears would wash them away.  If there was contact lens contamination on 9 August 2003, the eye had already been compromised and the bacteria could fasten onto the damaged surface and do harm.  In such circumstances, I accept Dr. S. H. Cheung’s opinion that the foreign body incident might not have made a difference.  Thirdly, as the Applicant did not have any immediate symptoms after the alleged incident, both experts accept that there was no serious abrasion in the corneal surface at that material time.  As the flying of a foreign body into a human eye may not always cause damage, the Applicant has simply failed to prove that the foreign body incident, which I do not accept that there was one, was a contributing cause of the injury.

51.  Both parties agree that in the case that I reject the Applicant’s case on the causation of the microbial keratitis, the Applicant’s claim for employees’ compensation cannot succeed.  For myself, I have great sympathy with the Applicant for his loss of vision in the right eye which would certainly have a grave impact on his daily life.  However as he has failed on both issues mentioned in paragraph 3 above, I have no option but to dismiss his claim.  I also make an order nisi in the following terms:

(i) the costs of this action be to the Respondent with certificate for counsel; and

(ii) the Applicant’s own costs to be taxed in accordance with Legal Aid regulations.

The order nisi shall be made absolute 14 days after the date of the handing down of this judgment.

52.  Finally, I would like to express my gratitude to both counsel for all the assistance that they have rendered to this court.