WU NIANGYIN for himself and the members of the family of WU CHUQING, deceased v. MAN KING WAH JOSH t/a SHUN TIM MEAT CO AND ANOTHER

DCEC 1591/2016

[2019] HKDC 571

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1591 OF 2016

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DECISION

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Background

1.  This is an application by the applicant in these Employee Compensation Proceedings.  The applicant, with other members of the family of the deceased employee Wu Chuqing (“the Deceased”), seeks leave to re-amend the application (“Application”) first filed on 27 July 2016 and then amended on 11 April 2017 (“Amended Application”), pursuant to a Summons taken out by the applicant on 23 November 2018 (“Summons for Re-amendment”), which is, in gist, as follows:-

(a)   In paragraph 1 of the Application:-

(i)   by amending the date of personal injury causing death from 30 August 2014 to 28 September 2015; 

(ii)   by amending “personal injury causing death by accident” to “personal injury causing death by occupational disease”; 

(b)   In paragraph 2 of the Application, by adding “of the Deceased” immediately after the sentence “the Applicant Wu Niangyin for himself and the members of the family”

(c)   by deleting paragraph (3) therein and replaced by the following:-

“On 28^th September 2015 the Deceased died at Queen Elizabeth Hospital from an occupational diseased (sic), namely, streptococcus suis, contracted from working as a meat cutter/market pork seller employed by the 1^st Respondent since on or about 1^st August 2014 to work at the 1^st Respondent’s stall known as Shun Tim Meat Company at Stall M4, Pei Ho Street Municipal Services Building, Sham Shui Po, Kowloon, Hong Kong.”

2.  The 1^st respondent answered this application for re-amendment of the Amended Application, by issuing a summons to strike out the Summons for Re-amendment.  This summons to strike out has since been adjourned sine die with liberty to restore pending determination of this Summons for re-amendment of the Amended Application.

3.  On 30 August 2014, the Deceased cut his left forearm while cutting a pig’s trotter at work.  He sought treatment at the Accident & Emergency Department of the Caritas Medical Centre.  His wound was sutured and injury on duty was confirmed.  There was no record of any follow-up treatment.  It appears that the Deceased returned to work.  But a year later, on 1 September 2015, he was admitted to the Department of Medicine at the Yan Chai Hospital for fever and progressive dyspnoea for 2 weeks.  Upon examination, he was diagnosed as having infective endocarditis.  Blood culture found streptococcus suis infection, namely, swine flu infection.  After several weeks of treatment at various hospitals, he died of complications and multiple organ failure on 28 September 2015.

4.  The original Application was made on 27 July 2016, which was within the statutory 24^th month period for making such application.  It was based on what the applicant originally believed was the Deceased’s cause of death, namely, by a single accident, whereby he accidentally cut his left forearm on 30 August 2014 and the Amended Application, dated 11 April 2017, was pleaded to also indicate that the Deceased died from, inter alia, streptococcus suis infection.  Thus the Amended Application dated 11 April 2017 was expressed as follows:-

“Date and place of accident, nature of work on which the Deceased was then engaged and nature of accident and cause of death: On 30^th August 2014, the Deceased was in the course of his employment and was instructed to work at the 1^st Respondent’s meat stall at Stall M4, G/F, Pei Ho Street Municipal Services Building, Sham Shui Po, Kowloon, Hong Kong.  When the Deceased cutting a pig’s trotter, the trotter slipped and the Applicant’s Deceased’s left arm was accidentally cut by the knife (“the Accident”).  After being wounded, the Deceased suffered from necrotising fasciitis streptococcus suis infection which resulted in various complications and passed away”.

5.  It was admitted by the 1^st respondent in its Answer dated 29 December 2017 that the Deceased died from streptococcus suis infection.

6.  Subsequently, after seeking expert advice on intended common law proceedings, the applicant realized that the actual cause of death could not have been the accident of 30 August 2014. Expert advice tendered to the applicant was that since the incubation period of streptococcus suis was 2 weeks, the deceased employee could not have died from infection sustained from an accident which happened more than a year ago (death being on 28 September 2015 and the time of the accident being 30 August 2014). Yet at the time of death, the Deceased was indeed diagnosed to be suffering from “necrotising fasciitis streptococcus suis infection”.

7.  An investigation report prepared by the Centre for Health Protection contained the following observations:-

(a)   “In summary, the deceased wore gloves at work but did not do so when handling raw meat during the incubation period”;  and

(b)   “Epidemiological information revealed that the patient had reported exposure to raw meat at workplace and home during incubation period”.

8.  The applicant was advised that his belief that the cause of death was the accident of 30 August 2014 was erroneous, but in light of the Deceased’s continued exposure to pigs or carcasses, his hospitalisation in September 2015 and the finding that he was suffering from necrotising fasciitis streptococcus suis infection, suggested that he had caught this disease from infected pigs.  This kind of transmitted infection is an occupational disease recognised by the Employees Compensation Ordinance, Cap 282 (“ECO”).  

9.  B8 of Schedule 2 to the ECO is in the following terms:-

	Description of occupational disease	Nature of trade, industry of process	Prescribed period for purposes of section 32
B8	Infection by streptococcus suis	Any occupation involving contact with pigs infected by streptococcus suis, or with the carcasses, products or residues of pigs so infected.	1 month.

10.  Section 32(1) of the ECO, provides as follows:-

“If the death of an employee results from an occupational disease and is due to the nature of any employment in which the employee was employed at any time within the prescribed period[1] immediately preceding …... death, …… then, the employee or members of his family, as the case may be, shall be entitled to compensation under this Ordinance as if such …… death had been caused by an accident arising out of and in the course of employment in respect of which the provisions of section 5 apply, and the provisions of this Ordinance (including in particular section 15) shall, mutatis mutandis, apply thereto, subject to the following modifications—

(a)   the incapacity or the death shall be treated as the happening of the accident.”

11.  Section 34 of the ECO provides as follows:-

“If an employee who suffers incapacity or dies as a result of an occupational diseasewas within the period specified opposite to that disease in the fourth column of the Second Schedule immediately preceding such incapacity or death employed in any trade, industry or process specified opposite to that disease in the third column of that Schedule, it shall be presumed, until the contrary is proved, that such disease was due to the nature of such employment.”

12.  It was not until after 22 September 2017, that the applicant received advice that although the cause of death was the result of swine flu, the accident which happened in August 2014, could not have itself been the cause of the death, and that the swine flu contracted by the Deceased was probably due to his continued exposure to pigs or carcasses infected with streptococcus suis. 

13.  In affidavit evidence before the court, the applicant explained that upon receiving preliminary medical advice, his solicitors applied to the Director of Legal Aid (DLA) as to whether the DLA would approve the seeking of counsel’s opinion to advise on how the case might proceed further on his employees’ compensation claim.  This application was made on 31 October 2017 but the DLA did not give approval until 5 July 2018.  On 10 September 2018 counsel advised that the applicant should re-amend the Amended Application so as to plead that the Deceased died from an occupational disease.

14.  On 4 October 2018, Solicitors for the applicant wrote to the respondents for agreement to re-amend the Amended Application but it was not until 2 November 2018 that Solicitors for the respondents indicated that the proposed re-amendment would be objected to. 

15.  The Summons for Re-amendment was therefore taken out on 22 November 2018. 

Submissions of the parties

16.  Before the hearing, counsel for the applicant submitted thorough written submissions and elaborated on the same at the hearing.  It was submitted that there was no change in the substance of the Application.  The Deceased was indeed infected with streptococcus suis but it was not the infection from his cut hand (characterised as the accident), which caused his death but the continued exposure to pig flesh, which resulted in the transmission of the same type of infection to the Deceased. 

17.  It was submitted that whilst the Amended Application incorrectly pleaded the basis of the EC application as an industrial accident rather than as an occupational disease, the basic facts were in the Application and it was the legal characterisation which was wrong. The applicant to re-amend the Application was not therefore the introduction of a new cause of action out of time, but an effort to ensure that the correct legal characterisation under the ECO was placed before the court when the hearing of claim takes place.  The re-amendment applied for should not be considered a late application under the section 14 of the ECO.

18.  Furthermore, it was submitted that the applicant was a layman and honestly believed that the death was caused by infection emanating from the cut hand, and was not aware that it was continued exposure to infection that resulted in the contraction of swine flu, until he received medical advice.  The court has discretion, under section 14 (4) of the ECO to determine the application for compensation notwithstanding that notice was not given in time.  The principles laid down by the Court of Appeal[2] for the exercise of discretion under section 14 (4) of the ECO are:-

(a)   The reasons for the delay;

(b)   The length of the delay;

(c)   Sufficient to support an application; and

(d)   Prejudice to the respondent.

19.  The applicant had acted reasonably and there were good reasons for re-amending the Application to correctly characterise the claim as one arising from an occupational disease.  There was no prejudice to the respondents. 

20.  The 2^nd respondent has indicated that it will take a neutral stance in relation to such application taken out by the applicant, though Mr Ringo Kwong did appear on behalf of the 2^nd respondent in the hearing of the said Summons on 28 March 2019 and confirmed that the 2^nd respondent remains neutral.

21.  The 1^st respondent did, however, appear by counsel at the hearing and strenuously opposed the application for re-amendment.  Written submissions were also submitted before the hearing and at the hearing, the written submissions were expanded upon.  In gist, the Summons for Re-amendment was opposed because of the following reasons:-

(a)   When the Application was last amended in April 2017, it was still made on the basis of the accident occurring in August 2014;

(b)   The applicant should have known from Day-One that swine flu was different to streptococcus suis infection, which was an occupational disease, and should have known that the claim as formulated originally and amended in April 2017, was unsustainable.  This was confirmed by the 1^st respondent sending in March 2018 to the applicant’s solicitors, the report of Dr Mannolis Gavalas, consultant in Accident and Emergency Medicine, University College Hospital, London;

(c)   Yet the applicant took no steps to seek to re-amend until October 2018;

(d)   Ignorance of the law is no excuse and the slowness of the applicant and the Director of Legal Aid was unreasonable;

(e)   The re-amendment is an application to introduce a new cause of action out of time, which should not be allowed.

22.  Counsel for the applicant answered the foregoing submissions by pointing out that it was difficult to pin down the date when an occupational disease began to affect the Deceased.  s 32 (1) of the ECO laid down that the date of death is the date of the accident. 

23.  Counsel for the applicant further pointed out that there is a statutory protection afforded to the applicant, as set out in section 32(6)(a) of ECO which specifically provided that, “the date of the incapacity shall, in the absence of agreement, be such date as the Court shall determine as being the date upon which the incapacity commenced; and no employee shall be prejudiced in any claim for compensation under this Part by reason only of the fact that the notice of incapacity given to the employer specified some other date”.  Thus, counsel for the applicant said that not mentioning occupational disease is not fatal to the claim because the disease itself was already mentioned in the Amended Application.

24.  The Director of Legal Aid had a public duty to ensure public money is properly used, and the applicant had no way of influencing the Director to expedite his actions.  The applicant had proceeded as expeditiously as he could.  In the circumstances, the actions of the applicant should not be taken to be unreasonable. 

Determination

25.  There is no dispute that the original Application was issued within time, but it was defective.

26.  The proviso to Section 14 (1) of the ECO enables the court to cure such defects.  Section 14 (1) provides as follows:-

“(1) Except where otherwise provided by this Ordinance, proceedings for the recovery under this Ordinance of compensation for an injury shall not be maintainable unless notice of the accident has been given to the employer by or on behalf of the employee, in the manner hereinafter provided, as soon as practicable after the happening thereof and before the employee has voluntarily left the employment in which he was injured, and unless the application for compensation with respect to such accident (being an application to the Court by an employee under section 18A(2)) has been made within 24 months from the occurrence of the accident causing the injury or, in the case of death, within 24 months from the date of death or prior to a determination made by the Commissioner under section 6B(1)(a), whichever is the earlier:

Provided that the want of, or any defect or irregularity in, a notice shall not be a bar to the maintenance of proceedings:-

(a) if the application is made in respect of the death of an employee resulting from an accident which occurred on the premises of the employer, or at any place where the employee at the time of the accident was working under the control of the employer or of any person employed by him, and the employee died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred; or

(b) if the employer is proved to have had knowledge of the accident from any other source at or about the time of the accident, or if it is found in the proceedings for settling that claim that the employer is not prejudiced or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or irregularity, or that such want, defect or irregularity was occasioned by mistake, absence from Hong Kong, or other reasonable cause.”

27.  Section 14 (4) of the ECO even allows the court to determine an application where late notice or no notice of application was given:-

“(4) The court may receive and determine any application for compensationin any case notwithstanding that the notice required by subsection (1) has not been given, or that the application has not been made in due time as required by that subsection, if it is satisfied that there was reasonable excuse for the failure so to give notice or to make an application, as the case may be.”

28.  Section 32 provides that the provisions of the ECO shall apply mutatis mutandis to occupational diseases.

29.  I have to determine whether the proviso in section 14 (1) of the ECO (seen through the prism of an occupational disease, as allowed by Section 32 of the ECO) applies to the application for re-amendment.  The proviso allows a defect in the notice of application for EC to be cured provided that the employer is not prejudiced in his defence when the defect was occasioned by mistake, absence from Hong Kong or other reasonable cause.

30.  In my view, there was ample evidence that the defect in the original notice of application was occasioned by mistake or other reasonable cause.  The applicant and his solicitors are not medically trained and could not have been able to spot an occupational disease.  The cause of death was certified as being the result of “necrotising fasciitis streptococcus suis infection”.  It was natural that they would assume that this infection came from the cut which occurred in August 2014.  The evidence before the court indicated that they were not alerted, until about September 2017, to the fact that the incubation period of streptococci suis was 2 weeks and therefore, the infection in September 2015 could not have come from the cut.  The applicant, being legally aided, had to apply to the Director for Legal Aid, to seek counsel’s opinion, and he had no way to make the Director expedite his decision.  It was not until the applicant obtained counsel’s advice in September 2018, that he knew how to cure the defect by re-amendment. Thereafter, his Solicitors proceeded reasonably to seek the respondents’ views on the proposed re-amendment and issued the application to re-amend in November 2018.

31.  The next question is, whether the curing of the defect, would prejudice the 1^st respondent in his defence.  I did not see in the written submissions nor in the oral submissions of counsel that the re-amendment would cause prejudice to the 1^st respondent in his defence.  Nor can I discern from the evidence before the court that the 1^st respondent can be prejudiced in his defence.  By the time of the original filing of the notice of Application for EC, which was within time, the evidence of infection could only be a matter of inference from medical examination of the Diseased, the type of pigs imported into the shop of the employer and the epidemiological evidence of streptococci suis in Hong Kong at the relevant time.  The 1^st respondent would have all of this evidence for the purposes of his defence.  The onus remains on the applicant to prove the occupational disease.

32.  I therefore have no hesitation in finding that the applicant may seek the protection of the proviso in Section 14 (1) to re-amend the Application.

33.  Counsel for the 1^st respondent argues that the re-characterisation of the application from an accident to occupational disease represents a new cause of action.  The ECO however does not operate on the basis of common law causes of action.  The ECO is a piece of social legislation intended to allow compensation to employees who have been injured as a result of industrial accidents or occupation disease contracted in the course of employment.  The mechanism in Section 14 of the ECO is to enable the employer to be notified of the accident within the time limits stated so that he may be able to make due investigation and offer compensation, but the section also allows the defective applications to be cured or even where the application was not filed in time or at all, to enable the court to determine whether EC should be paid, where the actions of the applicants were reasonable, without prejudicing the Employer.

34.  Even if the 1^st respondent is correct that a new “cause of action” was introduced by the re-amendment, and as a result, the original notice is ineffective as a notice and therefore, the position is as if no notice had been filed, the applicant may seek the protection of section 14 (4) of the ECO.  Here again, for the reasons given above, I have no hesitation in finding that the applicant acted reasonably in the circumstances, and there was reasonable excuse in the late re-amendment of the notice of application for EC, and the protection of section 14(4) of the ECO is equally available to the applicant.

35.  Accordingly, I will allow the amendment and give order in terms of the Summons for Re-amendment taken out by the applicant on 22 November 2018.

36.  For the avoidance of doubt, I stress that the order of costs in the Summons does not take into account the costs arising from the hearing before the court.  The 1^st respondent has decided to contest the re-amendment necessitating a hearing, and costs should, in the normal course, follow the event.  As I have not heard the 1^st respondent on this, I will make an order nisi that the costs of the hearing before the court be paid by the 1^st respondent to the applicant, with certificate for counsel, to be taxed on the District Court scale, if not agreed.  This order nisi shall become absolute in 14 days, unless the 1^st respondent submits in writing arguments as to why such an order should not stand, and thereafter, the applicant shall have the right to submit a response in 7 days and the 1^st respondent, a final response within 7 days thereof.  The 2^nd respondent shall pay its own costs for the hearing.

37.  The parties are requested to submit an agreed draft order to the court within the next 14 days hereof.  If the parties cannot come to agreement, they shall submit their own version to the court.

38.  Lastly, I would like to thank counsel for their assistance.