LEUNG WING HUNG v. HOP HING CHEONG TIMBER YARD

HEADNOTE

EMPLOYEES COMPENSATION - accidents at work in 1983 & 1984, resulting in agreements between employee and employer - nature of injury becoming more serious, in 1988 as a result of continuing same work with same employer - whether agreements should be cancelled - whether injury in 1988 due to accident or process of work.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

EMPLOYEES' COMPENSATION CASE NO. 181 OF 1989

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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1. This is an application for an award of employees' compensation on the basis of permanent partial incapacity, which Mr LEUNG Wing-hung, the applicant, claims to have suffered in the course of and arising out of his employment by the respondent. Mr LEUNG has been working for the respondent since 1975. In the beginning he worked as an odd-job worker, but for most of the period of his employment, he has been engaged upon quite heavy work lifting heavy weights of timber on frequent occasions during a 10-hours' day.

2. Not surprisingly this heavy labour took its toll. It is common ground that in 1983 and 1984 Mr LEUNG suffered personal injury as a result of accidents at his work. On the 26th July 1983, Mr LEUNG entered into an agreement with the respondent for the payment of periodical payments in respect of personal injuries resulting from a work-related accident on the 21st June 1983. On the 9th February 1985, Mr LEUNG agreed to accept a further sum of $10,739.60 as compensation for temporary and permanent partial incapacity, due to an accident which occurred on the 19th October 1984. By his present amended application under section 9 of the Employees' Compensation ordinance he seeks to recover further compensation. Initially, the basis of the present claim was unclear. But, Mr Caffrey, on behalf of the applicant, eventually accepted that, in order to succeed in the present proceedings, the applicant had to show that he was entitled to set aside the two agreements (pp. 14-21 of the Applicant's Bundle), or show that he had acquired a fresh cause of action (so to speak) as a result of sustaining further personal injury by accident arising out of and in the course of his employment in or about January 1988. In addition, the applicant might have to overcome certain procedural difficulties and time limitations.

3. It is common ground that the first basis of the present application, i.e., the attempts to set aside the agreements made in 1983 and 1985, must be considered in the light of the statutory provisions in force prior to the enactment of, and amendments to, section 17B (1)(b) of the Employees' Compensation Ordinance (cap. 282) in 1986, and in accordinance with the decision of the Court of Appeal in TUNG Shui-bun v. Gammon Building Construction Ltd. (Civ. App. 107-110 of 1985; 30th August 1985). In practical terms, this means that the applicant cannot succeed in his first endeavour merely by showing that he did not appreciate the extent or effect of the injury when he made the agreements or that the extent of that injury has worsened since these agreements were made.. In order to get the two agreements set aside the applicant must show that he was ignorant of or mistaken about the true nature of his injury.

4. It may be said that the agreement made on the 26th July 1983 was entered into under a mistake because it was confined to a section 10 claim for periodical payments. But, it referred to an "injury to lower back" and to the fact that " the employee sprained his lower back accidentally whilst moving about". In my view, the applicant clearly knew the nature of his injury. The fact that he may not have appreciated its extent in the sense of its consequences does not entitle him now to ask the court to cancel that agreement.  Nor has he established a case for cancellation of the second agreement. Again, the agreement identified sufficiently the nature of the injury as a sprained back. Furthermore, it stated that there was 3% permanent incapacity and a separate item of compensation (for a section 9 claim) was clearly set out in paragraph 7 of the agreement. The precise nature or circumstances of the "accident" on the 19th October 1984 did not emerge clearly from the evidence. The applicant's experience of "great pain" may have resulted from some separate incident at work; or it may have been no more than an indication that the injury sustained in June 1983 was more extensive than had been assumed when the first agreement was made by the parties and approved by the Commissioner. Apart from. the fact that the applicant has not shown that he entered into the second agreement in ignorance of, or under a mistake as to, the true nature of his injury, as defined by the decision of the Court of Appeal cited earlier, I do not think that it would be right to extend the time for cancelling these agreements, in accordance with section 17B (2) of the Ordinance. The second agreement was, perhaps, a clear indication to the applicant that the extent or consequences of his earlier accident was more serious than he or his employer realised. In my view, he should have taken steps to cancel these agreements long before July 1989. The applicant's attempts to re-open these agreements and to base a fresh application on the injuries sustained in 1983 or 1984 must, in my view be rejected.

5. I now turn to the alternative basis that Mr LEUNG suffered personal injury by an accident at work in January 1988. The immediate and obvious obstacle facing Mr LEUNG is the difficulty of proving that there was a further "accident" in January 1988, as distinct from a continuous process going on substantially over a period of time. The evidence shows that Mr LEUNG has a long history of intermittent attacks of low back pain, for which he has received treatment from hospitals, bone-setters chiropractors and accupuncturists in China and Hong Kong. This has been going on since 1983 when he had his first accident.  In my view, there is no doubt that his present condition is largely due to the fact that he has remained in his present employment since 1983 doing essentially the same type of heavy work.

6. In support of his contention that Mr LEUNG suffered further injury as a result of an accident in January 1988, Mr Caffrey relied heavily on the case of Fitzsimons v. Ford Motor Co. Ltd. [1946] 1 all ER 429; 39 B.W.C.C. 26. That was a case in which the plaintiff became incapacitated after 19 months of continuous work using a machine which damaged the tissues and nerves of his hand as a result of constant vibrations. The Court of Appeal held that each vibration was an infinitesimal blow to the hand, and the cumulative effect of these blows constituted an accident for the purposes of the statute. Doubts have been expressed as to whether that case is still good law, having regard to the decision of the House of Lords in Roberts v. Dorothea State Quarries [1948] 2 All ER 201. But, for the reasons given by Bucknill L.J.in Pvrah v. Doncaster corpn [1949] 1 All ER 833 at 888 and Cohen L.J. in Roberts v. Penrhvn [1949] 1 All ER 891 at 892, I do not think that it has been overruled. But, it is perhaps a case which should be treated as turning upon it's own special facts.

7. It is now generally accepted that whether a particular injury is a result of an accident or a process of work is a question of fact. There is no explicit formula. But, as Lord Porter said in Roberts v. Dorothea State Quarries, supra (at p. 206) .-

"There must, nevertheless, come a time when the indefinite number of so-called accidents and the length of time over which they occur take away the element of accident and substitute that of process."

8. In my view, the facts of the present case differ from those in the Fitzsimons case in a material respect. That was not a case of the recurrence of an existing injury or symptom; whereas, in the present case, it seems that all the evidence points to the conclusion that Mr LEUNG is experiencing the effects of his earlier injuries, albeit, in a more severe form. I think that it is clear that this present condition is due to continuing to work at the same job. As Dr. YEUNG testified, "repeated heavy weight lifting will give rise to microtrauma of the injured disc." I have given the most anxious consideration to the question whether Dr. YEUNG's references to microtrauma mean that Mr LEUNG suffered a series of "accidents" which ultimately resulted in the symptoms of severe back pain which led him to return to Princess Margaret Hospital on the 15th January 1988. But, I do not think that Dr. YEUNG's evidence supports such a conclusion. At best, it shows that the injury he suffered in 1984 - disc prolapse - has become more severe over the years through exposure to lifting heavy weights. The latter has not produced any fresh injury. In all the circumstance, I come to the conclusion that Mr LEUNG's present condition, which is quite serious and calls for serious consideration of an operation, falls into the category of the process of work. Accordingly, the second aspect of his present application must fail.

9. The doctrine or concept of a process of work, contrasted with that of an accident in the course of employment, has long been criticised. It is difficult to apply without leaving employees or employers with feelings that the result of their case is neither just nor sensible. It may deny compensation to deserving claimants merely because medical science has not progressed to the point of getting certain conditions accepted as prescribed occupational diseases, requiring special treatment. It can operate harshly against the employee who suffers injury by accident, but is unable to get expert advice on the nature and true extent of his injury at a time when he may be in desperate need of the means to support himself or his family, and easily induced to make an agreement which does not provide for the future complications which can so easily arise. There is no obvious or easy solution to the problem. But, given the fact that all forms of compensation available under the Employees' Compensation ordinance are subject to financial limits, which are generally lower than economic realities, it should not be too difficult to ensure that any additional risks, arising from abolition of the process of work concept, are covered by adequate and effective insurance.