ZHU DEFANG AND ANOTHER v. WING HING CONSTRUCTION COMPANY LTD AND ANOTHER

DCEC 1160/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1160 OF 2012

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DECISION

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1.  This is the Applicant’s application for leave to discontinue this case.  The Respondents did not oppose the application, but they asked for costs of these proceedings to be paid by the Applicant.

2.  On 28 June 2012, the Applicant instituted these proceedings in respect of the personal injury causing death by accident arising out of and in the course of employment caused to Kong Yi, an employee employed by the 1^stRespondent.  At the material times, the 1^stRespondent was a self-contractor of the 2^ndRespondent.  In the Application the particulars of the accident were set out as follows:-

“On 4 September 2010 at about 1:55 pm, the deceased was working at the construction site at the junction of Hoi Wong Road and Hoi Chu Road, Tuen Mun, New Territories, Hong Kong. The deceased was assigned to do pavement maintenance and repairing work. While the deceased was using an electric road cutter to cut the cement on the road, he suddenly felt dizzy and later collapsed. He was sent to Tuen Mun Hospital for treatment and was diagnosed with intra-cranial haemorrhage. The deceased was certified dead on 5 September 2010.”

3.  The Respondents submit that after receipt of the joint medical report, the Applicant sought to discontinue the action with no order as to costs because her claim is likely to be defeated given that causation is unlikely to be proved in light of the expert evidence rather than the case had become academic.  Hence, there is no exceptional circumstances in the present case to justify departure from the above general rule that the plaintiff should pay the costs of the defendant when applying for leave to discontinue an action.

4.  Section 5(1) of the Employees’ Compensation Ordinance (“the ECO”) provides that :-

“Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”

5.  Section 5(4) of the ECO provides that :-

“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.”

For the presumption under section 5(4) of the ECO to apply, the Applicant must first prove that there was an “accident” in the course of employment.  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” (quoted under paragraph 7 of the case of Tang Siu Chun v Yan Chung Yee & others (DCEC 720/1999).

6.  In Tang Siu Chun, the court set out a number of cases in which various courts held that the employees died by accident in the course of employment :-

“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 stokehold 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.

11.….. 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 pm, the evening shift started at 6 pm, 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.”

                   (Underlines added)

7.  In the present case, there is evidence (as referred to at the first paragraph on P.2 of the joint report of neurological experts dated 22 March 2013) showing that the deceased was operating a road cutter to break up cement at the junction of Hoi Wong and Hoi Chu Roads in Tuen Mun at 13:45 hours.  He suddenly felt dizzy and later collapsed.  He was sent to the Tuen Mun Hospital for treatment.  He died on the following day.  This piece of fact cannot be disputed by the  Respondents.  Thus, it is clear that the deceased’s act of using a road cutter to break up the cement on the road at the material time when he collapsed amounted to an accident.

8.  The 1^st and 2^nd respondents argue that there was no accident in the present case by citing the cases of Sit Wing Yi Sibly v Berton Industrial Limited [2011] 5 HKC 26, Tang Siu Chun, and Fung So Yin v Shek Hay Yau t/a Hai Pai Fishery Co & Another, DCEC  425/2005.  In these cases it was held that there was no accident.  The present case can be clearly distinguished from these cases, because it is clear what the deceased was doing before he collapsed.

9.  In my judgment, it is reasonable for the Applicant to commence these proceedings because there is evidence showing the existence of an accident causing the death of the deceased in the course of employment.  The Applicant can rely on the presumption under section 5(4) of the ECO.  On this ground it is just for this Court to depart from the general rule.  I therefore make an order that there be no order as to costs for these proceedings, including this summons application (up to the time of the argument hearing).  I made an order nisi, to be made absolute in 14 days’ time, that the costs of and incidental to the argument hearing of this summons application be paid by the Respondents to the Applicant, to be taxed, if not agreed.  The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.