TANG SIU CHUN v. YAN CHUNG YEE AND OTHERS

DCEC 702/99

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 702 OF 1999

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JUDGMENT

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1. The applicant in this action claims against the respondents under Sections 5 & 6 of the Employees' Compensation Ordinance on behalf of herself and the dependants of the deceased Chan Pong Fat.

UNDISPUTED FACTS

2. On 20th February 1998 at about 11:30 a.m., the Deceased, an electrician, was working in a construction site in Tseung Kwan O area 13. The 2nd Respondent was the main contractor of the site in question and the Deceased was employed directly by the 3rd Respondent; while the other Respondents were sub-contractors in between. Two co-workers walked past and found the Deceased sitting down on the staircase of a building under construction. The Deceased told them that he was working earlier on and feeling unwell. He looked pale and was covered in sweat, the co-workers helped him to the first aid room in the site. He was taken to hospital and certified dead later the same day.

3. Dr. C.H. Woo, a government pathologist, conducted a post-mortem on the Deceased and concluded that the medical cause of death was coronary atherosclerosis also known as myocardial infarction. He explained that this was a condition where a person's heart blood vessel became very narrow because of deposits of fats and would make it very difficult for blood to pass through. Indeed the Deceased's heart condition was very poor, in his opinion, the Deceased should avoid heavy physical activities, emotional excitement and overload work. Dr. Woo agreed with the Defence counsel that given the heart condition of the Deceased, one possibility was that heart attack could in fact occur spontaneously without any specific triggering factor.

LAGAL ISSUES

4. Section 5 (1)of the Employees' Compensation Ordinance provides that "..................., 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............"

5. In order for the Respondents to be liable to pay compensation under the Ordinance, the applicant must prove by evidence on the balance of probabilities the following three elements:

(a) there was personal injury by accident;

(b) it occurred in the course of his employment;

(c) it was arising out of his employment.

6. Once the applicant passes the first hurdle, there should not be much difficulty with (b) and (c) for the applicant can rely on the deeming provision of Section 5(4) which provides that " 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." There was death in the present case which certainly was a kind of personal injury, and the issue would be whether there was any evidence of an accident which caused the death.

CASE LAW

7. In CHIEF ADJUDICATION OFFICER V. FAULDS (H.L.) 2000, the court also dealt with a claim by an employee for compensation under a similar section where injury was caused by accident. The majority of their lordships held that "the 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." The importance of this decision of the House of Lords, in my view, is that it re-affirmed the requirement that there must be an injury and an accident, i.e. there must be a distinct event which caused the injury. " And in Fenton v. Thorley 1903 AC 443, "accident" was defined as " an unlooked for mishap or an untoward event which is not expected or designed."

8. In Ismay, Imire & Co. v. Williamson 1908 AC 437, where the workman, already weakened and emaciated, and more likely to suffer heat stroke than others was held to have died by accident when heat stroke came upon him suddenly and unexpectedly while he was attending a boiler in the stokehole of a steamship, or in Clover, Clayton & Co. Ltd. v. Hughes 1910 AC 242, where a workman suffering from a serious aneurism fell down dead while tightening a nut with a spanner, or in Falmouth Docks and Engineering Co. Ltd. v. Treloar 1933 AC 481, where a man suffering from heart disease lifted his hand above his head holding a hook in order to lay hold of a bag of china clay in the course of loading such bags on board ship, fell forward and died. In all these cases, the court was able to point to some specific act the deceased workman was doing at the relevant time.

9. Where the accident comes about through the claimant's own activities, the distinction is more subtle, but still identifiable. In Fenton' case, the workman ruptured himself while endeavouring to turn the wheel of a machine which was out of order. Lord Lindley observed that "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." In such a case the whole event might be referred to as an accident but the conceptual distinction is still there.

10. In Young v. Fife Coal Co. Ltd. 1940 S.C.(H.L.), Lord Atkin stated: " 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."

11. In the present case, there was no evidence whatsoever of what the Deceased was doing just prior to the meeting with his co-workers when he complained to them about his discomfort, nor was there any evidence to tell the court what he was engaged in doing in that morning so that the court may draw inference from it. In a Hong Kong case, Lee Fuh v. Ming Hing Construction Co. 1991 HKDCLR, the facts were that the deceased, a labourer, working in a late afternoon died suddenly. Precisely what he was doing at the moment he collapsed and died is not clear from the evidence but there is no doubt that during that afternoon he had been engaged in digging a ditch some 2-3 feet deep and also in placing wooden boards, of up to 6'x 4' x 3/4" in dimension, across the ditch. Judgment was entered for the applicant, however, the court had not addressed the question of accident in that case but rather on the causal connection between the employment and the accident causing death. Given the facts of the case, the court was nevertheless satisfied that the deceased was engaged in digging a ditch and placing wooden boards, if not at the moment of his collapse, certainly up to a relatively short time before it. Also in an earlier Hong Kong case, Yip Ho v. Hong Kong & Kowloon Godown Co. Ltd. 1969 HKDCLR, the deceased together with other labourers were engaged in lifting barrels of paint and in pushing carts loaded with rolls of paper each weighing about 600 to 700 pounds in the afternoon. The afternoon shift stopped at 5 p.m., the evening shift started at 6p.m., when the deceased and several others were given a cart which they pushed into the godown for loading by other workmen. Having performed this task for about 45 minutes the deceased complained of abdominal pains and went to toilet. About half an hour later he was found lying unconscious in the toilet with his trousers down, apparently in the course of evacuating his bowels just before losing consciousness. In these two cases, although there was no direct evidence as to what the deceased workman was doing at time of collapse, there was at least some evidence of what the deceased workman had been doing during that morning or afternoon before his collapse. In the present case, however, such evidence or facts were totally lacking.

CONCLUSION

12. Applying the law as I set out above to the facts of the case, I am driven to the conclusion that the applicant has failed to show that there was an accident.

13. For the reasons given, the order that I make is that the applicant's claim be dismissed.

14. Costs of this action be to the 1st, 2nd, 3rd, 4th & 5th Respondents with certificate of counsel, to be taxed if not agreed. I shall make it order nisi, it shall become absolute at the expiration of 14 days after the date of handing down this judgment.