CHAU SHUI v. TAI TAU TSAI ENVIRONMENTAL ENGINEERING LTD

DCEC 580/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 580 OF 2013

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JUDGMENT

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1. This is the Applicant’s claim against the Respondent for employees’ compensation pursuant to sections 7 or 9, 8, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282).

2. Counsel for both parties have informed the court the quantum has been agreed, leaving the question of liability to be adjudicated.

THE ISSUES

3. The issues of this case are as follows:-

(1) Whether the Applicant had an accident?

(a) Whether the Applicant did bend his body to insert the nylon straps underneath the 2 wooden boxes at the material time?

(2) If there was an accident, was the accident “arising out of and in the course of employment”?

(a) Whether the Applicant was required by the Respondent to carry out the work and in such a manner as described by the Applicant?

(3) Whether the posture adopted by the Applicant in slipping the nylon straps underneath the 2 wooden boxes is a cause of the spinal cord infarct suffered by the Applicant?

(a) Whether the disc prolapse suffered by the Applicant is a cause of spinal cord infarct?

BACKGROUND

4. The following facts are not disputed by the parties:-

(1) The Applicant is employed by the Respondent as a general labourer to work on the construction site at New World Centre, Tsim Sha Tsui (“the Construction Site”) since 25 December 2010.

(2) The Applicant is responsible for miscellaneous jobs on the Construction Site, including unpacking the goods from the wooden crates and moving the goods to the desired location.

(3) On 19 April 2011 at about 8:00 am, the Applicant began his work on the Construction Site by transporting metal pipes to and from the ground level and basement level. 

(4) On the same day at about 12pm, the Applicant had lunch with his colleagues.  Sometime after lunch, the Applicant told some colleagues he was unwell and he left the Construction Site.

(5) On the same day at around 5:18pm, the Applicant was admitted into the Tuen Mun Hospital and diagnosed to suffer from spinal cord infarct with paraplegia.

5. According to the Applicant’s evidence, at about 1 pm on 19 April 2011, he went to the ground level of the Construction Site to carry  the remaining metal pipes to the basement level.  After the last cart of metal pipes were carried to the basement, the Applicant together with a colleague named Go Lo (高老) went to assist a lorry crane to lift 2 wooden boxes.  The 2 wooden boxes containing metal pipes were stacked one on top of another and were placed in a very narrow space with other big metal pipes in close vicinity.  The Applicant described the space to be of about 1.5 body space.  The location of the 2 wooden boxes is show in the sketch at page 44 of the Trial Bundle. 

6. Each wooden box was about 4 ft x 4 ft in size and weighed about 1 tonne.  There was a baseboard at the bottom of the wooden boxes which was about 4 inches above ground level.

7. In preparation for the lifting of the wooden boxes, the Applicant, together with Go Lo, had to pass nylon straps underneath the wooden boxes and hook the straps to the crane.  However due to the insufficient space for the Applicant to pass the nylon straps, he postured himself as follows: he bent forward for about 45 degrees, squatted a little, and leaned his body to one side.

8. As soon as the Applicant got up from passing the nylon straps underneath the 2 wooden boxes, he felt immediate pain in his lower back and numbness in his legs.  He was unable to walk and remained immobile for 1 hour.  When the Applicant could finally walk again, he left the Construction Site by himself without any help.

9. The Respondent denies the Applicant’s version of events.  

10. Mr Lee Chun Wah (the 1^st witness for the Respondent) (“Mr Lee”) explains the wooden boxes were not stacked on top of each other on the day of the incident and the Applicant could easily unpack the wooden boxes without having to lift the boxes.  Moreover, Mr Lee denies the wooden boxes were placed in the narrow space as alleged by the Applicant.

11. Mr Tang Hon Ping (the 2^nd witness for the Respondent) (“Mr Tang”) admits the 2 wooden boxes in question were stacked on top of each other on the day of the incident. He explained that the wooden boxes could have been lifted separately and there was no need to lift the 2 wooden boxes together.

12. Both Mr Lee and Mr Tang were informed by another colleague that the Applicant felt unwell.  Upon hearing this, Mr Tang told the colleague to tell the Applicant to go home to rest. None of the Respondent’s witnesses witnessed the Applicant’s actions at the time of the incident and none of the Respondent’s witnesses were in the immediate vicinity when the incident happened.  Moreover, none of the witnesses saw the Applicant after lunch.

Medical evidence

13. Spinal cord infarct is a stroke in the spinal cord caused by a blockage of blood supply to the spinal cord. It is an irreversible disease and usually leads to paraplegia. The occurrence of spinal cord infarct is rare and only accounts for 1% of all stroke cases.  By reason of the rarity of the disease, there are limited case studies done in this area. Hence the pathogenesis and causes of spinal cord infarction are unknown.   

14. Dr Fu for the Applicant and Dr Wong for the Respondent are divided as to what caused or induced the onset of spinal cord infarction in the Applicant.

15. In summary, Dr Fu opines that according to the limited medical literature available, one possible cause of spinal cord infarction is compression of the spinal arteries against a protruded inter-vertebral disc. He recognizes that in the literature available, most cases of infarction are due to vascular diseases such as diabetes patients or patients with aneurysm of the aorta. He stated, “There are also case reports reporting cases of cord infarction after minor trauma such as after weight lifting or waist bending.”

16. Dr Fu honestly concedes he does not know the direct cause of the Applicant’s spinal cord infarct and admits it is possible there are other causes of spinal infarction which may not be connected to body movement.  However he believes the disc prolapse suffered by the Applicant is a probable cause of the spinal cord infarct for the following  reasons:

(1) The Applicant does not have any history of aortic disease, diabetes, hypertension or other risk factors found in the studies set out in the medical literature attached to the Joint Medical Report. The only physiological abnormality detected in the Applicant is the disc protrusions at T2/3 and T9/10.

(2) The onset of the spinal cord infarct occurred soon after the incident. The posture described by the Applicant involved bending of his body. This posture might have caused the spinal arteries to have compressed against the protruded inter-vertebral discs in the Applicant’s spine.

17. Dr Fu explains that although the position of the disc prolapses at T2/3 and T9/10 do not match the area of infarction (T5/6 to L1/2), this could be due to the movement of the spinal cord when one bends their body.  Dr Fu explains that if there is a compression against an artery causing spinal cord infarction, this could lead to further vascular damage causing the damage to be extensive. Therefore, he disagrees with the identification of 3 usual territories of spinal cord infarction as proposed by Dr Wong.  The 3 usual territories are: C1 to T3, T3 to T7, and T8 to cone.  The location of these territories is illustrated in Exhibit R2.  

18. On the contrary, Dr Wong believes that it is highly unlikely that disc prolapse is the cause of the Applicant’s spinal cord infarction.  He explains that the Applicant only has mild disc bulging at T2/3 and T9/10.  Since the position of infarction in Applicant’s spinal cord is from T5/6 to L1/2, the position of the disc prolapse is inconsistent with the extent and position of the infarction.  Moreover, Dr Wong explains there are 3 usual territories of infarction if the radicular artery is blocked.  Dr Wong explains that the movement of bending the body or squatting is a normal body movement.  He opines there is no “good sound medical explanation” to conclude this is a cause of the infarction. Dr Wong further suggests spinal cord infarction is not necessarily caused by compression on spinal arteries.  The infarction could occur for other reasons such as the artery being blocked by a blood clot.

19. In conclusion, Dr Wong states there is no identifiable external factor with a definite casual relationship to the Applicant’s extensive spinal cord infarction.

CREDIBILITY OF THE WITNESSES

20. The test to be considered when assessing the credibility of witnesses is set out in at paragraph 12 of Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd and others, unrep, HCA 3523/2002 which reads:-

“There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified:-

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility.  Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony.  For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest.”

21. I have considered the evidence of the witnesses and the submissions of counsel.  I do not propose to deal with all the submissions made by counsel but shall only deal with the salient submissions in my analysis of the evidence.

The Applicant’s evidence

22. The salient submissions made by Counsel for the Respondent discrediting the evidence of the Applicant are summarized as follows:-

(1) The Applicant’s evidence in respect of his complaint of back pain is inconsistent.

(2) The Applicant’s evidence about the narrow space in which he was required to move and how he got into the space is inconsistent.

(3) The Applicant’s description of the posture he adopted when he passed the nylon strap underneath the wooden boxes is inconsistent.

(4) The Applicant’s explanation as to why the 2 wooden boxes had to be lifted together is inconsistent and incredible.

23. In respect of the Applicant’s allegation of back pain, the document entitled Patient Initial Assessment Record (page 170-11 Trial Bundle) made by Tuen Mun Hospital on 19 April 2011 records the Applicant made a complaint of back pain. Furthermore, the medical report of the Accident and Emergency Department at page 76 of the Trial Bundle shows the doctor diagnosed the Applicant to have suffered from tenderness over the lower back region.

24. I have considered the medical notes of the Accident and Emergency Department of Tuen Mun Hospital (page 170-17 Trial Bundle) show an inconsistent recording of whether the Applicant made a complaint of back pain. I have also considered the Applicant’s failure to mention his back pain in his 2 witness statements and his statement to the Labour Department. However there is no explanation for the inconsistent record on back pain in the medical notes.  Moreover, the Applicant’s claim of back pain is supported by the Patient Initial Assessment Record and the medical report of the Accident and Emergency Department.  Hence I do not find the failure to mention back pain in the witness statements and the unexplained inconsistency in the medical notes to cast doubt on his reliability or credibility on the Applicant’s assertion that he had suffered back pain at the time of the accident.

25. In respect of the Applicant’s evidence on the size of narrow space, I do not accept counsel’s submission that the Applicant was incredible in this regard.  In his supplemental affirmation, the Applicant clearly explained that due to his illiteracy, he overlooked what was written in his first witness statement.  Though the estimated size of the narrow space was incorrect in the first witness statement, the Applicant was all along consistent in his version of events that the space was very narrow.  I do not find a correction as to the estimated size of the narrow space from “半個身位” (half a body space) to “個半身位” (one and half body space) be a deliberate change in the Applicant’s story.

26. As for the failure to mention the narrow space in his statement to the insurance adjusters on 5 May 2011 (page 131 Trial Bundle) and the Labour Department on 20 May 2011, I do not accept the failure to mention this in these 2 statements to be an inconsistency in the Applicant’s evidence so as to cast doubt on his credibility and reliability.  I accept the submissions of the Applicant’s counsel that the statements to the Labour Department and the insurance adjusters only serve as general statements to understand the basic information surrounding the incident and are not meant to be detailed statements for the purposes of litigation.  I am of the view that the failure to mention the narrow space cannot be considered an inconsistency in the Applicant’s evidence.

27. In respect of how the Applicant got into the narrow space, defence counsel submitted the Applicant gave 2 inconsistent versions.  In his witness statement, the Applicant said he walked into the narrow space.  However in his evidence in court, he said he climbed over the metal pipes to go into the narrow space.  Having read the relevant paragraph of the witness statement I do not find this to be an inconsistency.  The words being used in the witness statement are “走到”.  This phrase can mean the Applicant walked into the space and can also mean the Applicant went to the narrow space. In light of the further clarification given by the Applicant in court explaining how he entered the narrow space, I do not accept there was an inconsistency as submitted by counsel for the Respondent.

28. In respect of the submission that the Applicant was inconsistent in his description as to the posture he adopted when he passed the nylon strap underneath the wooden boxes, I do not agree the difference in his description renders his version of events unreliable and incredible.  The Applicant is illiterate and it is not surprising he may be unable to explain himself properly using words. The witness statement was drafted on his behalf by his legal representatives using formal written language which the Applicant would not normally use.  It is also understandable that descriptions relating to posture are not easily put into words.  I note that the description used in the witness statement is squat (蹲著) and in the description he gave in court was he bent forward about 45 degree angle, squatted a little, and leaned his body to one side.  The Applicant repeated this description in court a few times and demonstrated the posture, as best as he could, whilst sitting in his wheelchair. Having considered the Applicant’s evidence, I do not find there to be a material discrepancy in the description of the posture he adopted so as to cast doubt on his credibility and reliability.

29. Lastly, counsel for the Respondent submits the Applicant initially conceded that the work could be done by lifting one box at a time but later changed his evidence to say that the work had to be completed by lifting the 2 wooden boxes together into an open space.

30. Having considered the Applicant’s evidence, I do not agree the Applicant changed his explanation.  The Applicant all along maintained the usual work method adopted was to lift the 2 boxes together.  The purpose of lifting the boxes was so that they could dismantle the whole box to lift the goods from inside.  He explained that sometimes the goods inside the box could be taken out by lifting the lid off the box. Sometimes the goods were too heavy and all 4 sides of the box need to be dismantled.  Since the space in which the wooden boxes were placed was too narrow, they had to lift the 2 wooden boxes into an open area.  

31. During cross-examination when asked by counsel for the Respondent whether the 2 wooden boxes could be lifted separately, he conceded that although the 2 wooden boxes could be lifted separately, the workers would normally lift the 2 wooden boxes together.  The Applicant explained this is because the crane was not always parked in the location shown on the sketch for their use. The crane was on loan and would leave after the lifting work was done.

32. Having considered the Applicant’s evidence, I do not find there to be material discrepancies so as to cast doubt on his credibility and reliability. There was nothing inherently improbable or incredible about his version of events. I find him to be a credible and reliable witness.

The Respondent’s witnesses

33. Having considered the evidence of Mr Lee and Mr Tang, I found them to be incredible and unreliable witnesses.  

34. Firstly, Mr Lee’s evidence as to whether he knew the Applicant felt unwell that day is directly contradictory to his witness statement.  In paragraph 7 of his first witness statement (page 60 Trial Bundle), Mr Lee said he went back to the Construction Site after lunch.  At the time, one of the construction workers informed Mr Lee the Applicant was not feeling well. This version is repeated in his supplemental witness statement at paragraph 2 (page 66 Trial Bundle).  

35. However the version he gave in court is drastically different.  In court, Mr Lee denied the version he gave in his witness statements and said that after lunch, he asked a worker where the Applicant was.  The worker told Mr Lee he did not know and that the Applicant had left.  There was nothing further said after that and Mr Lee did not see the Applicant in the afternoon.

36. There is no explanation put forward by Mr Lee as to why his version in court is directly contradictory to the version given in his witness statement.

37. Secondly, the evidence of Mr Tang and Mr Lee are contradictory as to whether the 2 wooden boxes were stacked on top of each other that day.  In his supplemental witness statement at paragraph 3 (page 67 Trial Bundle), Mr Lee said there were only 2 wooden boxes that day on the Construction Site and the wooden boxes were place on the ground parallel to each other.  He was adamant the 2 wooden boxes were not stacked on top of each other as alleged by the Applicant.

38. However Mr Tang in his evidence in court admitted that the 2 wooden boxes were stacked on top of each other on the day of the incident.

There is no explanation as to why Mr Tang’s evidence is different from Mr Lee’s evidence.

39. Thirdly, the version of events set out in Form 2 (page 126 Trial Bundle) is not consistent with the evidence of Mr Lee and Mr Tang. In section D of Form 2, a representative of the Respondent gave a summary of the accident. The summary explicitly states that whilst the Applicant was working, he already felt unwell. This directly conflicts with the allegation of Mr Tang and Mr Lee that the Applicant only complained of feeling unwell after lunch and that the Applicant did not work in the afternoon.

40. The summary of the accident also states the Applicant left the Construction Site at about 4pm. The evidence of Mr Lee and Mr Tang is the Applicant did not work in the site after lunch. As soon as a colleague informed Mr Tang about the Applicant’s condition, he told the Applicant to leave and instructed the colleague to fetch the Applicant’s bag from the worker’s room. Mr Lee and Mr Tang claim they do not know what happened to the Applicant afterwards. I find such evidence to be unbelievable and incredible. Mr Tang was the Construction Site supervisor and Mr Lee was the direct supervisor of the Applicant. It is unbelievable for Mr Lee and Mr Tang to assert they had no knowledge of when the Applicant left the Construction Site and yet for the Form 2 to contain the precise time of the Applicant’s departure.   

41. Having considered the evidence of Mr Lee and Mr Tang, and having regard to the inconsistencies as set out above, I find Mr Lee and Mr Tang to be unreliable witnesses and that their evidence is inherently incredible. 

42. By reason of the matters set out above, I accept the Applicant’s version of events.

WHETHER THERE WAS AN “ACCIDENT”. 

43. In order to understand the expression “injury by accident” better, one must first determine whether the pleaded event in the Applicant’s Amended Application is capable of being an “accident” before one can meaningfully consider whether the injury was caused by such an accident.

The law

44. Section 5(1) Employees’ Compensation Ordinance provides:-

“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”

45. The word “accident” as used in the context of the Employee’s Compensation Ordinance has been defined to mean an untoward event or a mishap.

46. The case of Fenton v Thorley & Co Limited [1903] AC 443 is the leading authority often cited when considering the meaning of accident.  In considering the term “accident”, Lord Macnaughten stated at pg 448:-

“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.” 

47. Lord Lindley at pg 453 stated:-

“Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss.”

48. The definition provided by Lord Macnaughten and Lord Lindley was cited and followed in Hong Kong in the case of Yip Ho v Hong Kong & Kowloon Wharf & Godown Company Ltd [1969] HKDCLR 1.

49. In the case of Clover, Clayton & Co Ltd v Hughes [1910] AC 242 at page 245 Lord Loreburn stated:-

“The first question here is whether or not the learned judge was entitled to regard the rupture as an “accident” within the meaning of this Act. In my opinion he was so entitled. Certainly it was an untoward event. It was not designed. It was unexpected in what seems to me the relevant sense, namely, that a sensible man who knew the nature of the work would not have expected it.”

50. The word “accident” qualifies the word “injury”.  Hence an employee only receives compensation for injuries caused by an accident and not for any injury he happens to sustain during the course of employment.  As stated in  the case of Sit Wing Yi Sibly v Berton Industrial Ltd (2013) 16 HKCFAR 104, Bokhary NPJ stated:-

“The expression “injury by accident” plainly encompasses cause and effect, with accident as the cause and the injury as the effect.”

51. Moreover, the expression “injury by accident” excludes injuries caused by disease or self-infliction: see Fenton at page 448 and paragraph 5.06 Employees’ Compensation Handbook (4^th Ed).

52. The courts have found the employee to have suffered an accident even when the employee was merely carrying out an act he would normally carry out during employment.

53. Lord Macnaughten in Fenton said at pages 446 and 447:-

“If a man, in lifting a weight or trying to move something not easily moved, were to strain a muscle, or rick his back, or rupture himself, the mishap in ordinary parlance would be described as an accident. Anybody would say that the man had met with an accident in lifting a weight, or trying to move something too heavy for him. . . . It may even be his own fault, and yet compensation is not to be disallowed unless the injury is attributable to ‘serious and wilful misconduct.’ ”

54. This is reiterated in the case of Clover where Lord Loreburn stated at page 246:-

“I think it may also be something going wrong with the human frame itself, such as the straining of a muscle or the breaking of a blood vessel. If that occurred when he was lifting a weight it would probably be properly described as an accident. So, I think, rupturing an aneurism when tightening a nut with a spanner may be regarded as an accident.”

55. The Court of Final Appeal in Sit Wing Yi Sibly also adopted the same test and cited the case of NTUC Income Insurance Co-operative Ltd v Next of kin of Narayasamy s/o Ramasamy [2006] 4 SLR 507.  The passage of Narayasamy cited is set out as follows:-

“It does not matter whether that which was done entailed a level of exertion that was beyond that to which the workman was accustomed. It also does not matter that the workman had a pre-existing medical condition such that the injury could have happened at any time, even in his sleep. What is material is that something in fact transpired in the course of his work which made the injury occur when it did.”

56. Hence the following propositions may be deduced from the cases above:-

(1) An accident is an untoward event and an unlooked-for mishap, such that it is an unexpected event and is not deliberate.

(2) The word “accident” qualifies the word injury such that the accident is regarded as the cause and the injury is the effect.

(3) Medical pre-disposition of the employee does not affect whether an incident can be classified as an accident.  Unless the employee is found to have committed “serious and wilful misconduct,” the nature of the act carried out by the employee is not of any relevance when considering whether there was an accident.  So long as the event is unexpected, it will be considered an “accident” for the purposes of section 5 Employees’ Compensation Ordinance. 

The facts

57. In the Amended Application, the accident is described as the incident where the Applicant suffered from numbness in his legs and back pain after he got up from having bent his body to pass the nylon strap underneath the 2 wooden boxes.

58. By reason of my acceptance of the Applicant’s evidence, I accept the following facts:-

(1) On 19 April 2011, the Applicant worked on the Construction Site before and after lunch.

(2) On the morning of 19 April 2011, the Applicant was able to carry out his normal duties on the Construction Site, including manual labour jobs.

(3) There were 2 wooden boxes stacked on top of each other on the Construction Site as shown in the sketch annexed to the Applicant’s witness statement (page 44 Trial Bundle).

(4) The 2 wooden boxes were placed in a narrow space and were to be lifted out of the original position into an open space.

(5) The Applicant was required to prepare the lifting of the 2 wooden boxes to an open area.

(6) The Applicant had to pass a nylon strap underneath the 2 wooden boxes.  In doing so, the Applicant had to work in a narrow space of only 1.5 body space.  

(7) The Applicant leaned his body to one side, squatted a little and bent his body forward to slip the nylon strap underneath the wooden boxes.

(8) After the Applicant finished slipping the nylon strap underneath the wooden boxes, the Applicant got up.  As soon as he got up, he felt numbness in his legs and lower back pain.  He was unable to walk and rested for an hour before he could leave the Construction Site.

(9) He did not suffer from any pain or numbness to his limbs prior to this incident.

(10) On the same day, he was admitted into the Tuen Mun Hospital and diagnosed to suffer from spinal cord infarction with paraplegia.

59. From the incident as described by the Applicant, the sudden onset of the infarct occurred after he passed the nylon strap underneath the wooden boxes.  The incident was not deliberate and was an unlooked-for mishap.

60. Having considered the evidence and my finding of facts, I find the incident described by the Applicant to be an accident within the meaning the Employees’ Compensation Ordinance.

WHETHER THERE WAS AN “INJURY BY ACCIDENT”

61. Counsel for the Respondent does not dispute the Applicant suffered injury, that is, spinal cord infarct.

The law

62. In determining causation, the courts adopt a pragmatic and common sense approach.  In the case of Ocean Tramping Co Ltd v Lee Kin-kai [1991] 2 HKLR 232, the Court of Appeal made the following observations at page 235J:-

“First causation is essentially a matter for the judge not for the doctors. It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it. Secondly it is important to bear in mind that the law and medicine here, it seems to me, apply quite different standards. In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient; it need not be shown to be the sole cause. . . . Thirdly, a judge when considering causation is not only entitled, he is bound, to use his common sense, to approach the question in the same way as would a juror.”

63. The Court of Appeal then cited the case of McGhee v National Coal Board [1973] 1 WLR 1 and continued at page 236C:-

“The House of Lords agreed that common sense could be used to fill the gap. Lord Reid at p.5 said:-

“It has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the everyday affairs of life.”

Lord Salmon, at page 11, repeated an earlier dictum of his own where he said:-

“I consider, however, that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.”

In my view therefore the judge was not only entitled but was sensible to start with the facts. When considering that evidence he was not confined to those matters which the doctors may individually have picked out in their consulting rooms.”

64. A pre-existing condition is not determinative of causation. In the case of Wilson v Chatteron [1946] 1 KB 360 at page 367 Scott LJ stated:-

“The principle which emerges is that, unless the weakness or illness of the workman is the sole cause of the accidental injury to, or death of, the workman, the employer is liable. We can see no difference in the principle between a bodily condition involving recurrent fits of epilepsy on the one hand, and on the other the various contributing causes unconnected with the employment which were features of the decisions we have cited.”

Whether the Applicant’s disc prolapse is a cause of spinal cord infarct

65. I remind myself that the function of this court is not to find the medical cause or sole cause of the injury.  This court is to determine whether the disc prolapse suffered by the Applicant is a cause of spinal cord infarct such that the events as described by the Applicant are a sufficient contributing cause of the infarct.

66. I note that in 2 out of 3 of articles attached to the Joint Medical Report, disc prolapse was found to be a cause of spinal infarct in some of the patients.

67. In an article published by Novy entitled Spinal Cord Ischemia. Clinical and Imaging Patterns, Pathogenesis, and Outcomes in 27 patients (Arch Neurol. 2006; 63(8):1113-1120. doi 10.1001), disc prolapse was a common factor which may have lead to the spinal infarction in 3 out of 27 patients.  These 3 patients experienced acute vascular compression due to the movement of the spine.

68. In the last article annexed to the Joint Medical Report entitled: Spinal Cord Infarction in Chinese Patients by Cheng et al (Cerebrovasc Dis 2008; 26:502-508), 22 patients were examined.  Although aortic disease was the most common cause found, probable causes were only found in 9 patients.  Thirteen patients had no exact identified causes.  Of all the patients studied, 7 patients had pre-disposing events including massage, exercise, work and trauma.  In one patient, they found spondylolisthesis (protrusion of the vertebra) and believed this spinal disease might have caused compression on one of the spinal arteries which in turn resulted in the spinal cord infarction. It was further found in the same study that back pain occurred frequently and the time lapse from the pain to the following neurological symptoms was short. 

69. In the article entitled Spinal Cord Infarction: Etiology and outcome by Cheshire et al (Neurology 1996;47:321-330), 44 cases of ischemia and infarction were examined.  It was found the spectrum of etiologies for spinal cord infarction is diverse.  Although there was no mention of disc prolapse being a cause of spinal cord infarct in their subject patients, they found the following (at page 327 of the article):-

“Various case reports have implicated cervical spondylosis, cervical spinal trauma, or sprain, and sustained neck rotation as might occur during yoga exercise or crouched posture.”

70. It is undisputed the Applicant does not have a history of aortic disease, hypertension and diabetes; all common risk factors of spinal cord infarct. Hence the onset of the spinal cord infarct must be caused by other factors.

71. It is not disputed the only physiological abnormality detected in the Applicant is protrusion of his inter-vertebral discs at T2/3 and T9/10 and the inter-vertebral discs bulge towards the spinal cord. According to the medical literature, disc prolapse is a possible cause of the Applicant’s spinal cord infarct. Since there is no other pre-existing condition of the Applicant which is known to cause spinal cord infarct, it is possible the Applicant’s disc prolapsed is related to the onset of the spinal cord infarct.

72. On analysis of the evidence, it is evident the onset of the infarct did not occur until after the accident. It is not disputed the Applicant had been had been moving heavy objects around the Construction Site on the morning of 19 April 2011.  Despite having conducted manual labour work in the morning, the Applicant did not experience sudden pain or numbness in his limbs prior to the accident. The Applicant only suffered back pain, numbness in his legs and subsequent immobility after the accident.  The back pain followed by the instantaneous numbness in his legs suffered by the Applicant after he got up is a symptom of spinal cord infarct as described in the study conducted by Cheng et al in the article of Spinal Cord Infarction in Chinese Patients.

73. Furthermore, on the same day of experiencing the symptoms of back pain and numbness to the legs, the Applicant was admitted to hospital and diagnosed with spinal cord infarct. The time lapse between the accident and the diagnosis made by the doctors is less than 5 hours.

74. I am of the view the facts and the medical evidence suggest the accident caused a physiological change in the Applicant and somehow triggered the onset of the spinal cord infarction.

75. Although I note Dr Fu and Dr Wong’s found the disc prolapse suffered by the Applicant to be mild, I note both doctors do not completely rule out the possibility that the Applicant’s disc prolapse caused or triggered the onset of the spinal cord infarct after the awkward position adopted by the Applicant in carry out his work duties.

76. I note Dr Wong opined it was highly unlikely the Applicant’s description of the events caused the onset of the spinal cord infarction.  However I do not accept his evidence for the reasons set out below.

77. Firstly, I note Dr Wong conceded he could not say it was absolutely impossible for the accident to have been the cause of the infarction.  In his answers to the court, he does not rule out the possibility the Applicant’s infarction is caused by the awkward posture he adopted, though he says it is unlikely.

78. Secondly, Dr Wong is unable to explain why the infarction happened immediately after the lower back pain and numbness of the legs suffered by the Applicant immediately after he got up from bending down.  The significance of the back pain, sudden numbness in the legs, and the period of immobility suffered by the Applicant immediately after getting up from an awkward position are not addressed by Dr Wong’s evidence.  Dr Wong suggests the infarction might not be caused by spinal artery compression and could be due to a blood clot.  He further stated in his opinion in the Joint Medical Report that it was “simply incidental” that the infarction happened within the Applicant’s working hours.  However there is no evidence the Applicant’s infarction was caused by a blood clot in the spinal artery.  The Applicant does not have aortic disease, hypertension or diabetes. Hence it is unclear on what basis Dr Wong suggests the infarct could be caused by a blood clot.

79. Thirdly, Dr Wong’s evidence is not consistent with the findings set out in the article Spinal Cord Infarction: Etiology and outcome appended to the Joint Medical Report. As quoted above, the article reports a finding that some patients suffered spinal cord infarct after adopting a crouching posture. This posture is what Dr Wong describes as “performing normal body motion” (the words used by Dr Wong).

80. Having considered the Applicant’s description of the accident, the accident and the symptoms he suffered immediately after the accident correspond to the findings set out in the medical studies attached to the Joint Medical Report.  I am of the view that Dr Fu’s evidence is the more preferable in offering an explanation as to why the Applicant suddenly suffered an onset of spinal cord infarction after he got up from passing the nylon straps. In comparison with Dr Wong’s opinion, Dr Fu’s opinion is more logically consistent with the facts and the medical studies produced before this court. In such circumstances and reasons set out above, I preferred the explanation and findings of Dr Fu over Dr Wong.

81. I find the Applicant’s disc prolapse coupled with the awkward position he adopted when passing the nylon straps underneath the 2 wooden boxes is a cause of the spinal cord infarct.

82. I therefore find that the spinal cord infarct is an injury caused by the accident.  

WHETHER THE ACCIDENT “ARISES OUT OF AND IN THE COURSE OF EMPLOYMENT”

83. Section 5(4) of the Employees’ Compensation Ordinance stipulates as follows:-

“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;

(b) an accident to an employee shall be deemed to arise out of and in the course of his employment, notwithstanding that the employee was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the employee for the purposes of and in connection with his employer's trade or business. . . ”

84. The leading Hong Kong case on the correct test to be applied when considering whether an accident arose out of and in the course of employment is Lam Min and others v Yau On Construction Co [1981] HKLR 646.  The Court of Appeal approved the test coined as the “incidental to work test” by Silke JA as expounded in the case of R v National Insurance Commissioner Ex parte Michael [1977] 2 All E.R. 420.  The passages of Roskill LJ’s judgment in National Insurance Commissioner Ex parte Michael cited by the Court of Appeal with approval are as follows:-

At page 650F:

“These cases authoritatively decided that the phrase – ‘in the course of employment’ does not mean during the currency of the engagement, but means in the course of the work which the workman is employed to do and what is incident to it . . .”

At page 650H:

“The crucial effect of the decisions is, for the present purposes, that for an injury to qualify for industrial benefit that injury must have been suffered in the course of the work which the injured person is employed to do, or be incidental to that work. It is not enough that the injury should have been suffered during the currency of the employee’s contract of service. Nor so far as the adjective ‘incidental’ is concerned, is it sufficient for the injury to have been suffered in some manner incidental to that contract of service. If the injury is not suffered in the actual course of the work which the employee is engaged to do, it must have at least been suffered by reason of some event incidental to that work.”

85. By reason of my finding of facts above, I found the Applicant was carrying out his employment duties when the accident happened.  I did not find the Applicant’s injury to have been caused by a serious and wilful misconduct on his part.

86. By virtue of section 5(4) of the Ordinance and the evidence before me, I find that the accident did arise out of and in the course of employment.

SUMMARY

87. By reason of the matters set out above, I find that on a balance of probabilities, the Applicant did sustain an injury (spinal cord infarct) caused by an accident that arose out of and in the course of his employment.

88. I therefore find the Respondent liable to pay employees’ compensation to the Applicant.

89. Since the quantum has been agreed between the parties, I award the Applicant compensation in the total sum of HK$1,610,565.18 (which is a sum inclusive of interest up to the first day of trial, that is, 2 February 2015).  Interest is awarded on the said sum at half judgment rate from 2 February 2015 until date of judgment, and thereafter at judgment rate until full payment.

90. I make a costs order nisi that the Respondent does pay the Applicant’s costs of these proceedings with certificate for counsel, to be taxed if not agreed.  The Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.  Unless any party applies to vary the costs order within 14 days hereof, the costs order shall become an order absolute.