O-Anan, Umphai v. The National Lacquer and Paint Products Co. Ltd.

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 103 OF 1998

_______________________

J U D G M E N T

_______________________

1. This is a claim for compensation under the Employees' Compensation Ordinance ("the Ordinance") which is brought by Mrs Umphai O-Anan, the widow of the late Chan Sai-yat, for herself and his other dependants. The amount of compensation has been agreed subject to liability in the sum of $583,950 plus interest.

2. The deceased, who was employed to work in the respondent's paint factory at Kwun Tong, died suddenly on 26 July 1996 whilst he was painting an internal wall located on the 3rd floor of the factory. The cause of his death was a ruptured dissecting aneurysm of the ascending thoracic aorta. It is submitted on behalf of the applicant that the rupture was due to the physical exertion caused by the painting work that he had been assigned to do. The respondents deny liability on the basis that the aneurysm, which was clearly a pre-existing condition, was likely to rupture at any time and that this work was in no way causative of the events which resulted in his death. This, therefore, is what I have to decide.

3. Section 5(1) of the Ordinance fixes liability on an employer when personal injury by accident arising out of and in the course of employment is caused to an employee. Additionally, section 5(4)(a) contains this provision:

"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."

4. The matter turns largely on the medical evidence which I have heard. Professor Joseph Lee, who was called by the applicant, says that the exertion attending the task of painting caused the aneurysm to rupture. Physical activity will cause a person's blood pressure to rise and a severely diseased aneurysm requires little pressure on it to cause it to rupture. Professor Lee, therefore, sees a clear link between the activity of painting, what the deceased was doing as part of his employment, and the rupture.

5. Dr Philip Beh, the respondent's medical expert, says the aneurysm could have ruptured at any time and that there is no evidence to link this rupture to the physical exertion required to paint this wall. I will need to consider the medical evidence in a little more detail presently. But in view of Dr Beh's opinion in particular, I will need to consider the evidence, of which there is little, concerning the painting work which the deceased had been doing before he collapsed onto the floor and I assume died either instantly or very shortly thereafter. After I have done that, I propose to draw attention to the legal principles which I am required to apply in deciding this sort of issue, before I make an assessment of the physical evidence and the medical evidence as that evidence relates to the requirements of the Ordinance.

6. The deceased was born in November 1947. He was therefore 48 when he died. The post-mortem examination, page 28, shows that he weighed 66 kilos and that his height was 1.68 metres. He is described as of moderate build. The medical findings were unremarkable save, of course, for the ruptured aneurysm and that his coronary arteries showed marked atheromatous occlusions of 60 to 80 per cent at multiple sites. The valves in myocardium were unremarkable. Those occlusions played no part in the events that caused his death.

7. Prior to his death the deceased had no symptoms of ill health and would have considered himself a fit man. I was told by his colleague, Mr Wat, that his usual work required him to move fairly heavy objects such as metal barrels around the factory premises which he did on a daily basis without difficulty. Painting would be considered less physically demanding.

8. He was assigned to do this painting work at half past 8 in the morning. He collected the paint from the 4th floor which he walked up to. The paintbrush came from a 3rd floor store. There is a photograph of the paintbrush at page 55, plate 7. It appears to be a fairly small brush attached to the end of a broom handle type of arrangement. There are no measurements but it is reasonable to assume from the photograph that the handle was about 5 feet long. The paint bucket is also shown at page 55, plate 8.

9. Nobody saw the deceased painting that morning. The court must draw conclusions if it can properly do so from the physical evidence immediately following the discovery of the deceased. He was left to it at 8.30 am. At 9.15 a colleague, Mr Lam Yun-kiu, who had just emerged from a nearby lavatory, was walking close to where the deceased was working when he heard a bang. He turned round and saw the deceased lying on the floor. The photograph at page 52 has been marked to show where the deceased was lying when he was found by Mr Lam. His head was pointing towards the camera.

10. Mr Wat in particular has been questioned by both counsel to try and establish how much painting the deceased had done in the course of the 45 minutes prior to his collapsing onto the floor. Perhaps not surprisingly the deceased's productivity was not uppermost in the minds of the persons who found him and had him removed to hospital and so one is left to attempt an ex post facto reconstruction of those events without much available evidence.

11. The first difficulty is that nobody saw the deceased at work and it is therefore impossible to tell the precise level of his physical exertion during this period. What is fairly clear is that he did paint a section marked with an arrow shown at page 53, plate 5, which is also visible at page 54. Although the photographs are not of the best quality, I am satisfied that this whiter section must have been painted by him. There is then the question of whether the larger darker section beyond it had also had at least an undercoat, or first coat of paint, applied to it. This is advanced by Mr Lim, for the applicant, on the basis that Mr Wat has said that he thought the area of the wall near the paint pot, page 54, was wet and that the close-up photograph, plate 8, page 55, appears to show that the wall there has a stripy appearance of the type one gets after a first application of paint prior to a more composite, thicker, or more even appearance that one gets following a second application.

12. I have come to the view that it is more probable than not that the smaller part of the wall, page 53, plate 5, had been finished hence the whiter more even appearance and that the section beyond it, page 54 and 55, plate 8, had had some paint applied to it by the deceased. I get this doing my best from the appearance of the wall as shown in the photograph and by comparing that section of the wall to the dirtier appearance of the wall to the right of page 50, plate 2, with a "No Smoking" sign painted onto its surface.

13. There has also been argument as to why the paint pot was placed on top of the ventilation shaft, see photograph 50, plate 2, for example. Mr Lim says this confirms that having finished the whiter section of the wall, page 53, plate 5, the deceased had moved onto the section beyond, page 54, and was painting that when he collapsed. I have found that he had done some painting on that wall, but the reasons for the position of the paint pot is unclear. How and why it got there I cannot tell. There is also suggestion that he may have stood on the moveable metal frame, bottom of page 48, also shown under the paint pot at page 50, plate 2, in order to reach up and paint the wall. I can see the sense of that, but again I am unable to make a finding about it. I cannot draw that inference on the present state of the evidence.

14. The only findings that I do feel able to make are that he had finished the corner section of the wall and that he had done some painting on the section beyond that. The other matter that I cannot possibly tell is whether this work had been spread out evenly over the 45 minutes with him working at a uniform pace, or whether this period had been punctuated with intense activity interrupted by breaks. I propose, therefore, to decide the case on the two findings that I have been able to make. From these findings I am able to go on and conclude that a certain amount of physical exertion would have been expended by the deceased during this time. The precise nature and intensity of that exertion must remain unknown, but common sense and experience of life leads me to the conclusion that wielding an extended paintbrush of this type to paint a wall of this area starting at 5 to 6 feet above floor level to a height of 10 feet or so - this was the evidence - during the course of 45 minutes, must entail a meaningful degree of physical effort. By that, I intend to indicate more than a nominal amount but less than effort which would leave a reasonably fit person, such as the deceased, breathless. I have in mind moderate physical exertion. One cannot over-elaborate this analysis particularly where the evidence is sparse.

15. From this I turn to the law. Happily, I am much assisted by a series of decided cases which indicate what my process of reasoning should be having regard to the evidence; the physical, which I have already made findings about, and the medical, which I will turn to in a moment. I start with Clover Clayton & Company Limited v Hughes [1910] AC 242, a decision of the House of Lords. There are factual and medical similarities with the present matter. The headnote to the report adequately describes the issue and the facts.

"A workman suffering from serious aneurysm was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurysm. The County Court Judge found from conflicting evidence the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal. Held by Lord Loreburn and Lords McNaughten and Collins; Lords Atkinson and Shaw of Dumferline dissenting, that there was evidence to support the finding and that it was a case of personal injury by accident arising out of and in the course of the employment within the Workmen's Compensation Act 1906."

16. The court's reasoning process is set out in the speech of the Lord Chancellor, page 246 and 247 as follows:

"I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the County Court Judge that the strain in fact caused the rupture, meaning no doubt that if it had not been for the strain the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases there must be some standard of exertion varying in every trade. Nor do I think we should attach any importance to the fact this man's health was as described. If the state of his health had to be considered there must be some standard of health varying, I suppose, with men of different ages. An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health. It may be said and was said that if the act admits of a claim in the present case, everyone whose disease kills him whilst he is at work will be entitled to compensation. I do not think so and for this reason: it may be that the work has not as a matter of substance contributed to the accident though in fact the accident happened while he was working. In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment taken together looking at it broadly? Looking at it broadly, I say, and free from over nice conjectures, was it the disease that did it or did the work he was doing help in any material degree?"

17. From that I come to the decision of the English Court of Appeal in Wilson v Chatterton [1946] 1 KB 360. The headnote states the principle to be:

"That unless the weakness or illness of the workman is the sole cause of his injury or death by accident in the course of his employment, the employer is liable to pay compensation and this applies to an epileptic as well as to a workman suffering from any other disability. In that case an epileptic who was working in a field had a fit and fell into a furrow full of water and was drowned. It was held that the employer was liable to pay compensation."

Scott LJ delivering the judgment of the court put the matter in this way at pages 366 to 367:

"It is only if the accidental injury has no causal connection with the employment at all that it can be said not to arise out of it though it may occur in the course of it. It is for that reason that the employer cannot escape liability by showing that some factors such as disease is a predisposing or even contributing cause of the injury. He must show that it is the sole cause as has been said frequently in decided cases. The statutory language contains no words which qualify its absolute generality. Any person, man, woman or child who is a workman, if employed, is entitled to compensation for injury accidentally caused which arises out of and in the course of the employment. There is no prerequisite of a medical examination to qualify him for admission to the benefit of the act. There is no hint of an exclusion from those benefits of any person because at the moment of injury he is suffering from disease or any physical or mental disability which may render him more prone to accidental injury arising out of his employment. There are many cases cited on pages 8 to 14 of Willis, 37th edition, which would have been decided adversely to the workman had such been the meaning of the statutory language. Indeed, the unqualified phrase 'injury by accident' is inconsistent with such a reading of the statutory obligation on the employer. As was pointed out by Lord Loreburn in Warner and Couchman the words are 'injury by accident' not 'by an accident'. It suffices if the injurious event is in any reasonable sense accidental and that event must be judged from the workman's point of view. Clover Clayton & Company Limited v Hughes and Trim Joint District School Board of Management v Kelly. Both those decisions are, in our view, directly relevant to the present case. Indeed, when considered in the light of Fenton and J Thorley and Company Limited and Fife Coal Company Limited v Young, they are in truth conclusive in favour of the workmen. Flannaghan v Ackers Whitley and Company, McFarlane v Hutton Brothers Stevedores Limited and Moore and Tredegar Island Coal Company are all decisions in which the Court of Appeal followed the principle as we see it laid down by the House of Lords and the decisions we have mentioned, and all three were cases in which the workmen suffered from weakness or disease of the heart and death occurred without his being subjected to any abnormal strain. 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 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."

18. These principles have been applied in a number of Hong Kong decisions which for present purposes I need not recite here.

19. I now turn to the medical evidence to see where that takes me on the issue of causal connection between the ruptured aneurysm and the work the deceased was doing for the respondents.

20. Professor Lee and Dr Beh are both eminently well qualified to speak on this matter. I have found their evidence most helpful. Professor Lee says, "Here is an aneurysm of the thoracic aorta. It was therefore weakened and, as such, prone or predisposed to rupture." His analysis of the evidence is that painting of a wall would have caused exertion and therefore a rise in blood pressure which in turn would have caused further dilation of the aneurysm and its consequential rupture. He underlines his evidence by saying that a severely diseased aneurysm requires little to push it over the brim resulting in rupture. He concludes, therefore, that the causal connection between the exertion resulting from the painting caused the rupture. He was cross-examined by Mr Kerr for the respondents and he accepted that his analysis had three limbs and that if any one of those were found to be missing, then his analysis was not sustainable. The three were, firstly, that the painting caused exertion which, secondly, caused a rise in blood pressure which in turn and, thirdly, caused the rupture. He was quite satisfied that even the relatively moderate exertion caused by painting would be sufficient to cause blood pressure to rise which in turn would cause the rupture.

21. Dr Philip Beh's view is that this rupture was spontaneous, it could have happened at any time and that the exertion of painting would not have been sufficient to cause it. He says it was merely coincidental that it ruptured whilst he was at work. It is clear from the great care that Dr Beh has taken in preparing his report for the court and in the way that he gave his evidence that he was anxious to have regard as fully as he could to the precise activity that the deceased was engaged in when deciding whether this activity was causally connected to the rupture or whether it was a matter of coincidence that it occurred when it did. He wished me to understand that on the evidence that he had read and heard in court that it could not be shown that the rise in blood pressure as a result of the painting could have caused this rupture.

22. In determining this matter, which is not purely a medical issue although the medical evidence is extremely important in that determination, I have to ask myself the question posed by Lord Loreburn in Clover Clayton & Company Limited v Hughes, supra, page 247.

"In each case the arbitrator ought to consider whether in substance as far as he can judge on such a matter the accident came from disease alone so that whatever the man had been doing it would probably have come all the same or whether the employment contributed to it. Did he die from the disease alone or from the disease and employment taken together looking at it broadly?"

23. Also in the words of Scott LJ in Wilson v Chatterton:

"It is only if the accidental injury has no causal connection with the employment at all that it can be said not to arise out of it, though it may occur in the course of it."

24. I return, therefore, to such findings of fact that I have felt able to make about the level of exertion that the deceased would have undergone. I found that this would have been moderate exertion over the course of 45 minutes for the reasons that I have attempted to give. That being my view, I am satisfied on a preponderance of probabilities that this would have elevated his blood pressure sufficiently to impose enough stress on the aneurysm causing it to rupture. It follows that I prefer Professor Lee's analysis. These matters must always be a question of fact and degree having regard to the state of the evidence about the pre-accident level of activity of the deceased person and the consequential stresses that that sort of activity imposed on the diseased organ. In this matter that evidence, in my judgment, favours the analysis put forward by Professor Lee and causes me, adopting the principles that I have referred to, to conclude that the deceased died from a combination of the disease and the employment, in this case painting, per Lord Loreburn supra. In the circumstances the applicant must succeed. The conclusion that I have arrived at is such that I need not refer to the deeming provision in section 5(4)(a). An argument does not arise under this subsection given the causal connection that I have found between the work and the accident.

25. Accordingly, I order compensation in the agreed amount of $583,950 plus interest at half the judgment rate from the date of the accident to judgment and thereafter at the judgment rate until payment.

26. Costs should be to the applicant with Legal Aid taxation of the applicant's costs, with certificate of counsel.