CHOW KAI YAN by MAN WAI TONG, his next friend v. KINGSWAY CARS T SERVICE LTD

DCEC 376/2019

[2022] HKDC 165

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 376 OF 2019

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JUDGMENT

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A.  INTRODUCTION

1.  This is a sad case. Mr Chow Kai Yan (the “Applicant”, who is represented by his mother in these proceedings) was a very hard-working and respectable young person. He was employed by the Kingsway Cars T Service Ltd (the “Respondent”) since May 2015. In January 2017, he was promoted to the post of supervisor and had since been working in that post until 25 February 2017.

2.  On 25 February 2017, the Applicant went back to the Respondent’s workshop. The Applicant suddenly lost consciousness in a changing room. He was sent to Princess Margaret Hospital. It took 30 minutes to get the Applicant to resume his heartbeat. He was found to have suffered from an acute cerebral stroke in the form of intracerebral haematoma which caused a cardiac arrest and in turn insufficient blood supply to the brain. The Applicant has since fallen into a persistent vegetative state.

3.  On 22 February 2019, the Applicant commenced an application (the “Application”) pursuant to the Employees’ Compensation Ordinance, Cap 282 (“ECO”) for compensation under sections 8, 9, 10 and 10A thereof.

4.  Paragraph 3 of the Application is pleaded as follows:-

“3. Particulars are as follows:

Particulars

(a) Date of birth or age of CHOW KAI YAN at the date of the accident: - CHOW KAI YAN was born on 13^th April 1978 and as aged 38 at the date of the accident.

(b) Nature of the employment of CHOW KAI YAN at the time of the accident: CHOW KAI YAN was employed by the Respondent was a supervisor at the time of the accident.

(c) Date and place of accident, nature of work on which CHOW KAI YAN was then engaged and nature of accident and cause of injury:-

On 25^th February 2017 at about 5:10 p.m., when CHOW KAI YAN was, in the course of his employment with the Respondent, testing and repairing a car at the workshop of the Respondent at Ground Floor, Eastern Factory Building, Nos 42-50 Kwai Ting Road, Kwai Chung, New Territories, Hong Kong, he suddenly lost consciousness.

(d) Nature of injury:

Acute cerebral stroke which caused a cardiac arrest and failure of the lungs. CHOW KAI YAN has been in a state of coma ever since the happening of the accident on 25^th February 2017.”

5.  In these proceedings, the Applicant is represented by Mr Erik Shum and the Respondent by Mr Patrick Szeto. The main dispute between the parties is relation to liability, in particular the proper approach under section 5 of the ECO which 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 in accordance with this Ordinance.”

B.  THE APPLICANT’S CASE

6.  The Applicant’s case as advanced by Mr Shum in his closing submissions is as follows. The first question that the Court should determine is whether the Applicant sustained an injury by accident. In this regard:-

(1)  It is accepted that the notions of (a) “accident” and (b) “injury” resulting from the accident are two different and distinct concepts in law under the phrase “injury by accident” in section 5 of the ECO.

(2)  It is also agreed that the question of whether or not there was an injury by accident is distinct from, and logically anterior to, the question of whether the accident arouse out of or in the course of employment.

(3)  The Applicant’s case is that the accident is the cerebral stroke on 25 February 2017 resulting in the injuries of cardiac arrest and the state of coma. As the cerebral stroke, cardiac arrest and the state of coma are not disputed, the Applicant has established “injury by accident”.

7.  The second question that the Court should decide is whether the accident occurred in the course of the employment. As this is accepted by the Respondent that the stroke took place in the course of the employment, the Applicant has also proved this element.

8.  According to Mr Shum, the Applicant may then rely on the presumption under section 5(4)(a) of the ECO, which provides that:-

“For the purpose 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; …”

9.  The third question that the Court need to determine is whether the Respondent can rebut the presumption. Mr Shum submits that the Respondent fails to do so. In particular, the Applicant relies on the expert report for the Applicant prepared by Dr Kan Yiu Ting (“Dr Kan”), who opines that the accident (ie the cerebral stroke) was caused by or contributed to by the work stress suffered by the Applicant. The accident therefore arose out of the Applicant’s employment with the Respondent.

10.  For the reasons above, Mr Shum submits that the Applicant’s claim is proved.

C.  THE RESPONDENT’S CASE

11.  Mr Szeto submits that the Applicant’s approach is wrong. In particular, he submits that the Applicant has merged the concept of accident and injury. While it is not disputed that the Applicant suffered from cerebral stroke which resulted in cardiac arrest and the state of coma, those are injuries and not accident.

12.  Mr Szeto submits that the first thing that the Applicant is required to identify and prove is the “accident”. However, there are no proper pleading and particulars identifying such “accident” in the Application.

13.  In any event, Mr Szeto submits that the Applicant’s case put at the highest:-

(1)  The only possible “accident” in the present case is the normal day-to-day work which allegedly caused stress to the Applicant. It lacks an “untoward” element to constitute an “accident”.

(2)  Further, work stress is a continuous process and cannot amount of an “accident” as defined by the ECO.

14.  The Applicant, it is submitted by Mr Szeto, therefore fails to prove any “accident” under the ECO.

15.  Assuming the Applicant can prove “accident” under the ECO, then the Applicant has to prove that the accident caused or contributed to his injury in order to establish “injury by accident”. In this regard, the Respondent relies on the expert report for the Respondent prepared by Dr Yu Yuk Ling (“Dr Yu”), who opines that by excluding all other possible causes, the most probable cause for the stroke of the Applicant was the malformation of blood vessel. Mr Szeto therefore submits that the Applicant fails to prove his case on liability in any event.

D.  ANALYSIS

D1.  The proper approach

16.  The first question that I need to decide, as shown by the parties’ cases as set out above, is the proper approach in finding “injury by accident” under the ECO. Both Mr Shum and Mr Szeto have cited a number of authorities. As this is a rather important question under the ECO, I hope I would be forgiven for going into the history of the authorities below at some length.

17.  The development of law in this area can be traced back to UK’s Workmen’s Compensation Act, 1897. The history of the relevant UK legislation was summarised by Lord Hope of Craighead in Chief Adjudication officer v Faulds [2000] 1 WLR 1035, at 1037, as follows:-

“The use of the phrase "by accident" in legislation for the provision of compensation or other benefits for personal injury sustained in the course of employment has a long history. Section 1(1) of the Workmen’s Compensation Act 1897 provided that if in any employment to which the Act applied a workman suffered "personal injury by accident arising out of and in the course of the employment" he was to be entitled to compensation from his employers. The same expression was used in section 1(1) of the Workmen's Compensation Act 1906. It was repeated in section 1(1) of the Workmen's Compensation Act 1925, which remained in force until the system of workmen's compensation was replaced by the system of national insurance for industrial injuries which was introduced by the National Insurance (Industrial Injuries) Act 1946. The new legislation adopted the same phrase to define the persons who were to be entitled to benefit. Section 7(1) of the Act of 1946 provided that benefit was payable to an insured person who suffered "personal injury caused after 4 July 1948 [the date when the new system was to come into force] by accident arising out of and in the course of the employment." This phrase has been preserved in all the subsequent enactments as the basis for entitlement to benefit: see section 5(1) of the National Insurance (Industrial Injuries) Act 1965, section 50(1) of the Social Security Act 1975 and section 94(1) of the Benefits Act.”

18.  In Fenton v J Thorley & Co Ltd [1903] AC 443, the appellant was a workman who was employed by the respondents in their machinery. He ruptured himself by an act of over-exertion in trying to turn a wheel. The House of Lords held that there was an “injury by accident” within the meaning of the Act. Lord Macnaghten held, at 446, that:-

“If a man, in lifting a weight or trying to move something not easily moved, were to strain a muscle, or rick his back, or rupture himself, the mishap in ordinary parlance would be described as an accident. Anybody would say that the man had met with an accident in lifting a weight, or trying to move something too heavy for him.”

19.  His Lordship further held, at 447-449, that:-

“The 1^st section of the Act, sub-a. 1, declares that "if in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman," his employers shall be liable to pay compensation. Now the expression “injury by accident” seems to me to be a compound expression. The words "by accident" are, I think, introduced parenthetically as it were to qualify the word "injury," confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design. Then comes the question, Do the words "arising out of and in the course of the employment" qualify the word "accident," or the word "injury," or the compound expression "injury by accident"? I rather think the latter view is the correct one. If it were a question whether the qualifying words apply to "injury" or to "accident," there would, I think, be some difficulty in arriving at a conclusion. I find in s. 4 the expression "accident arising out of and in the course of their employment." In s. 9 I find the words "personal injury arising out of and in the course of his employment," while in s. 1, sub-s. 2 (b), the qualifying words seem to be applied to the compound expression "injury to a workman by accident." The truth is that in the Act, which does not seem to have had the benefit of careful revision, "accident" and "injury" - that is, injury by accident - appear to be used as convertible terms; for instance, in s. 2 "notice of the accident" has to be given and that notice is referred to immediately afterwards as "notice in respect of an injury under the Act." I come, therefore, to the conclusion that. the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed.”

20.  His Lordship also expressed agreement with the view of Lord M’Laren in Stewart v Wilsons and Clyde Coal Co., Ld. (at 449) as follows:-

“There is, however, a recent decision of the Court of Session in Scotland to which I should like to call your Lordships' attention, and in which I agree entirely. It is the case of Stewart v. Wilsons and Clyde Coal Co., Ld. (2) A miner strained his back in replacing a derailed coal hutch. The question arose, Was that an accident? All the learned judges held that it was. True, two of the learned judges expressed an opinion that it was "fortuitous," but they could not have used that expression in the sense in which it was used in Hensey v. White. (3) What the miner did in replacing the hutch he certainly did deliberately and in the ordinary course of his work. There was nothing haphazard about it. Lord M'Laren observed that it was impossible to limit the scope of the statute. He considered that "if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in" . . . . "this is accidental injury in the sense of the statute. " Lord Kinnear observed that the injury was "not intentional" and that "it was unforeseen.""It arose," he said, "from some causes which are not definitely ascertained, except that the appellant was lifting hutches which were too heavy for him. If," he added, "such an occurrence as this cannot be described in ordinary language as an accident, I do not know how otherwise to describe it."”

21.  Fenton v J Thorley & Co Ltd[1903] AC 443 was subsequently applied in Clover, Clayton & Co Ltd v Hughes [1920] AC 242, in which a workman suffering from serious aneurism was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. By that time, the relevant legislation was the Workmen’s Compensation Act, 1906. The issue however was the same, namely whether there was an “injury by accident” within the meaning of the Act. Lord Macnaghten held, again, at 247-248, that:-

“My Lords, in this case your Lordships have heard a very able and ingenious argument upon the construction of the 1st section of the Workmen's Compensation Acts. I need hardly say that it is not from any want of respect to the learned counsel who advanced it that I pass that argument by. It has been disposed of already. It was advanced and rejected in the case of Fenton v. Thorley. (1) There the Court of Appeal had held that if a man meets with a mishap in doing the very thing he means to do the occurrence cannot be called an accident. There must be, it was said, an accident and an injury: you are not to confuse the injury with the accident. Your Lordships' judgment, however, swept away these niceties of subtle disquisition and the endless perplexities of causation. It was held that "injury by accident" meant nothing more than "accidental injury" or "accident," as the word is popularly used. It is not perhaps quite accurate to say that in that case a definition of the term "accident" was hazarded. It would be more correct to say that the decision was that the word "accident" was to be taken in its ordinary and popular sense. Some of the noble and learned Lords who gave judgment explained what they understood to be the ordinary meaning of the word, and I cannot but think that the explanations given, varying slightly in expression, are substantially correct.”

22.  From the above, it can be seen that “injury by accident” was treated by his Lordship as a compound expression and having the same meaning as “accidental injury”.

23.  Subsequently, in Fife Coal Co Ltd v William Young[1940] AC 479, the House of Lords considered the meaning of “injury by accident” again, although this time under the Workmen’s Compensation Act, 1925. The respondent, whose work as a packer in a coal mine necessitated continual kneeling, had for some time suffered from loss of power of dorsiflexion of the right foot, and on 27 April 1938, feeling that foot numb he had to cease work, and could only walk home with difficulty. His condition was subsequently diagnosed as “dropped foot”, that is, a paralysis of the muscles of the leg caused by pressure on the peroneal nerve which prevents dorsiflexion of the foot, and he became totally incapacitated. Lord Atkin held, at 489-490, that:-

“There are two topics, however, upon which I wish to make some remarks.

(1.) The legal conception of "accident" within the meaning of the Workmen's Compensation Act has undoubtedly been enlarged in the more recent decisions. Such a broadening of view was plainly foretold by Lord Birkenhead in Innes v. Kynoch (1), as the result of the acceptance of the decision of this House in Brintons, Ld. v. Turvey (2), that the invasion of a workman's body by a bacillus derived from the employment is an accident. In Brinton's case (2) it was anthrax; in Innes's case (1) it was streptococci derived from bone dust.

(2.) It is necessary to emphasize the distinction between "accident" and "injury," which in some cases tend to be confused. No doubt the more usual case of an "accident" is an event happening externally to a man. An explosion occurs in a mine, or a workman falls from a ladder. But it is now established that apart from external accident there may be what no doubt others as well as myself have called internal accident.

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…”

24.  It is noted that while his Lordship emphasised the distinction between “accident” and “injury”, he considered that in the case of an internal accident, such as a rupture, the rupture was both accident and at the same time injury from which follows at once or after a lapse of time death or incapacity.

25.  Now I come back to Chief Adjudication officer v Faulds [2000] 1 WLR 1035, which is mentioned at the beginning of this section. It was a case concerning post-traumatic stress disorder. The facts of the case are summarised in the headnote as follows:-

“In 1993 the claimant, a senior fire officer who had served for 27 years in the fire brigade, was discharged on medical grounds after being diagnosed as suffering from post-traumatic stress disorder. He claimed industrial injuries benefit under section 94(1) of the Social Security Contributions and Benefits Act 1992 on the ground that his medical condition had been caused in the course of his employment as a result of attending at a series of fatal accidents, including aircraft crashes, fires and road traffic accidents, over a period of years from 1986 to 1993. The adjudication officer rejected the claim but the social security appeal tribunal held that the claimant was entitled to benefit. On the adjudication officer's appeal, the social security commissioner declared that the claimant suffered personal injury out of and in the course of his employment in consequence of the incidents in question. The adjudication officer appealed. The Extra Division of the Inner House of the Court of Session held, refusing the appeal, that the claimant's injury was caused "by accident" within the meaning of section 94(1) due to exposure to shocking sights, that the accident and the injury merged indistinguishably and that there was no need to make a finding of an "accident" which was a distinct event separate from and preceding the injury.”

26.  Lord Hope held, at 1041-1042, as follows:-

“In Reg. v. National Insurance Commissioners, Ex parte Hudson [1972] A.C. 944, 1008G Lord Diplock pointed out that the National Insurance (Industrial Injuries) Act 1946 created and regulated the entitlement of insured persons to three separate and distinct kinds of benefit—injury benefit, disablement benefit and death benefit, the conditions of entitlement to which were different except that successive rights to each of the three kinds of benefit may arise from the same accident. Then, under reference to provisions which are now to be found or are mentioned in section 94(1) of the Benefits Act, he said at pp. 1008-1009:

"Section 5, which contains the general description of and conditions of entitlement to each of the three benefits, avoids the use of the compound phrase 'personal injury by accident' which had appeared in successive Workmen's Compensation Acts since 1897. It is reasonable to suppose that the change in phraseology was deliberate—though there is an isolated lapse into the expression 'personal injury by accident' in section 48(2) of the statute."

He then analysed the chain of causation which creates the entitlement to injury benefit as comprising: "accident—personal injury—incapability of work," and went on to say, at p. 1009:

"In popular speech 'accident,' the first event in each chain, is used in a variety of meanings of which the common characteristics are unexpectedness and, generally, misfortune. As was pointed out by Lord Macnaghten in Fenton v. J. Thorley & Co. Ltd. [1903] A.C. 443, it embraces both an event which was not intended by the person who suffers the misfortune and an event which, although intended by the person who caused it to occur, resulted in a misfortune to him which he did not intend. An event which constitutes an 'accident' with which the statute is concerned, has two limiting characteristics: the misfortune which it causes must be 'personal injury' to an insured person; and the event must be one which can be identified as arising out of and in the course of that person's employment. It cannot be the 'personal injury' itself of which it is described as the cause. It must be something external which has some physiological or psychological effect upon that part of the sufferer's anatomy which sustains the actual trauma, or some bodily activity of the sufferer which would be perceptible to an observer if one were present when it occurred. It is convenient to call this external event or bodily activity the causative incident."

In my opinion Lord Diplock's observations in that case serve to underline the point that it is not enough for the purposes of the Benefits Act to show that the condition in question arose "by accident." Dicta such as that by Lord M'Laren in Stewart v. Wilsons and Clyde Coal Co. Ltd. (1902) 5 F. 120, 122 to the effect that "if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in" is an accidental injury in the sense of the statute, which was approved in Fenton v. J. Thorley & Co. Ltd. [1903] A.C. 443, 449 by Lord Macnaghten and in Clover, Clayton & Co. Ltd. v. Hughes [1910] A.C. 242, 256 by Lord Collins, are too widely expressed for the purposes of the requirements of the Benefits Act. There must be a causative event or incident which can be described as "an accident." ”

27.  His Lordship further held, at 1042-1043, the following:-

“The fact that the scheme under the Benefits Act provides for the entitlement to benefit for prescribed diseases as well as for personal injury by accident does not mean that a disease can never come within the ambit of the phrase "injury by accident." In that regard, as Lord Kinnear said in the Welsh case, 1916 S.C.(H.L.) 141, 145, the statute is its own interpreter. The question whether a particular condition should be prescribed for the purposes of the industrial injuries scheme is normally referred to the Industrial Injuries Advisory Council: see section 171(3) of the Administration Act. The conditions which must be satisfied before a disease can be prescribed for this purpose are set out in section 108(2) of the Benefits Act. The council has a specialist research group whose task is to examine these matters and to keep the question whether diseases should be prescribed diseases under review. Its approach to these issues is, no doubt for good reasons, a cautious one and post-traumatic stress disorder is not a prescribed disease. It may nevertheless, as Lord Porter pointed out in Roberts v. Dorothea Slate Quarries Co. Ltd. [1948] 2 All E.R. 201, 204, be possible to show that it is within the category of personal injury by accident.

In regard to diseases or conditions similar to a disease, it may not be possible to discern a sharp dividing line between "accident" and "process." In such cases the mere fact that the condition may be said to be due to a process will not be sufficient to defeat the claim. But the distinction between accident and process is nevertheless a useful one. It serves as a reminder that what one is looking for in every case is an event or incident, or a series of events or incidents, to which the condition can be attributed. In the result, for a condition such a post-traumatic stress disorder to qualify under section 94(1) as personal injury by accident, the claimant must show the following: (1) that an event or incident has occurred; (2) that the claimant has suffered personal injury; and (3) that the event or incident caused the injury. It is the third requirement which is primarily in issue in this case, bearing in mind that the sustaining of an unexpected personal injury caused by an expected event or incident may itself amount to an accident.”

28.  In the result, his Lordship allow the appeal and direct the judges of the Inner House of the Court of Session, when they apply the judgment, to remit the case to the Social Security Commissioner. He specifically stated, at 1043, as follows:-

“The reasons which the tribunal gave for their decision were unsatisfactory because they did not address the question whether the respondent's post-traumatic stress disorder was attributable to any particular incident or incidents in the series to which he had referred in his evidence. The commissioner directed his attention to the question whether the incidents which the respondent attended could be regarded as accidents to him, rather than to the critical question whether the development of the post-traumatic stress disorder was caused by any, and if so which, of these incidents. The judges in the Extra Division, 1998 S.L.T. 1203, were concerned primarily with the argument for the chief adjudication officer that an injury could not be said to have been sustained "by accident" where the event or events causing it were foreseeable. They were right to reject this argument for the reasons which they gave, at pp. 1209-1210. But I would hold that they fell into error when they said that it was unnecessary to find a causative event which was separate from the injury: see p. 1210D. This led them to say that the injury and its cause might merge indistinguishably. In my opinion these observations were erroneous in principle because they are inconsistent with the fundamental requirement that the claimant, on whom the onus lies, must show that an event or a series of events caused the injury. On their approach there was sufficient evidence to support the claim. I would hold that there was insufficient evidence, because the claimant's evidence did not address itself to the fundamental issue as to which, if any, of the particular events to which he referred caused his post-traumatic stress disorder.”

29.  In my view, his Lordship clarified a number of important issues in this area of the law.

30.  First of all, he considered that the interpretation of phrase “injury by accident” as a compound expression to mean “accidental injury”, as in Fenton v J. Thorley & Co. Ltd. [1903] A.C. 443 and Clover, Clayton & Co. Ltd. v Hughes [1910] A.C. 242, is too wide for the purposes of the Benefits Act. Instead, “accident” is distinct from “injury” and is the causative event of “injury”. According to Lord Diplock in Reg. v National Insurance Commissioners, Ex parte Hudson [1972] A.C. 944, “accident” is something “external which has some physiological or psychological effect upon that part of the sufferer's anatomy which sustains the actual trauma, or some bodily activity of the sufferer which would be perceptible to an observer if one were present when it occurred”.

31.  Secondly, he considered that an “accident”, being a causative event of “injury”, can be an expected event, although it sustains an unexpected injury.

32.  Thirdly, the claimant must identify an event or a series of events and show that they caused the injury. In regard to diseases or conditions similar to a disease, it may not be possible to discern a sharp dividing line between “accident” and “process.” In such cases, the mere fact that the condition may be said to be due to a process will not be sufficient to defeat the claim. But the distinction is nevertheless a useful one. It serves as a reminder that what one is looking for in every case is an event or incident, or a series of events or incidents, to which the condition can be attributed.

33.  Chief Adjudication officer v Faulds [2000] 1 WLR 1035 was subsequently applied by the English Court of Appeal in Secretary of State for Work and Pensions v James Scullion [2010] EWCA Civ 310. The case, like the present case, was concerned with general stress at work. It was an appeal by the Secretary of State for Work & Pensions against a decision of the Social Security Commissioner dated 11 January 2008 by which he reversed a decision of a Social Security Appeal Tribunal dated 30 May 2006. The Tribunal upheld a decision of the Secretary of State dated 6 February 2006 refusing to make a declaration under section 29(2) of the Social Security Act 1998 (“the 1998 Act”) that Mr James Scullion (“the respondent”) had suffered an industrial accident. The reason given for the Secretary of State’s decision was, as quoted at [1] of the case that:-

“It has not been established that there was either an event which in itself is identifiable as an accident or a particular occasion on which personal injury was suffered by Mr Scullion which would constitute an accident.”

34.  The facts are recited at [3] of the case as follows:-

“In his decision, the Commissioner stated:

“3. The facts are not in dispute. The claimant, a fit and active ex-serviceman [aged 64 at the time of the decision], was employed by the Ministry of Defence as a Service Families Accommodation Accountant. In 2001 a planning manager in the claimant’s department became ill and shortly afterwards a stores manager was promoted and transferred to other work, so that in the first part of 2002 the claimant had to carry out their work as well as his own. The strains on the claimant were also increased by a major Army unit re-location during that period, and during the oral hearing before me the claimant gave a vivid account of the pressures on him as a result of complaints by service personnel about their accommodation.

4. On his arrival at work on 25 March 2002 the claimant was seen by a colleague to be looking unwell. The claimant told his colleague that he would go home when he had finished his work, but shortly afterwards the person working in the room next to the claimant’s office heard a loud crash. On entering the claimant’s office, he saw that the claimant had collapsed. He summoned the first-aider, who found that the claimant was not breathing and had no pulse. The first-aider attempted to resuscitate the claimant using oxygen until he was taken to hospital by air ambulance.

5. On his arrival at hospital the claimant was found to have suffered a cardiac arrest, from which he fortunately recovered, although he has not been able to resume work and has retired on ill-health grounds. In a letter dated 11 May 2006 the claimant’s consultant cardiologist reported to the claimant’s general practitioner about his condition as follows:

‘The medical records were available to me. Investigation…showed a normal echocardiogram with no evidence of cardiomyopathy. Paroxysmal atrial fibrillation was noted on cardiac monitors while he was an in-patient. Cardiac catherisation revealed normal left ventricular function. There was mild coronary artery disease present with no evidence of a recent myocardial infarction. The patient went to . . . for electrophysiological studies. This was performed on 24.04.2002. There was no inducible malignant ventricular arrhythmia and no evidence of sinus mode disease. Atrial flutter and atrial fibrillation were inducible by catheter manipulation. An implantable cardioverter defibrillato was recommended and this was undertaken . . . on 14.05.2002.

. . .

The aetiology of his ventricular fibrillation remains obscure. The presence of mild coronary artery disease would be a substrate for this condition. (The claimant) tells me that he had been under significant pressure at work during the period immediately before his out of hospital cardiac arrest. This may have contributed to the appearance of the ventricular arrhythmia at that time’.”

The respondent had no recollection of his fall or indeed of the entire day. There was no evidence of what he was doing immediately before the fall.”

35.  The two issues in dispute were succinctly summarised by Lord Justice Pill at [2] of the case as follows:-

“The first issue is whether the respondent sustained an accident within the meaning of that word in section 94(1) of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”). Section 94(1) provides:

“Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after 4th July 1948 by accident arising out of and in the course of his employment, being employed earner’s employment.”

The second issue is whether the accident causing the injury arose “out of” the respondent’s employment, within the meaning of the sub-section. Section 94(3) provides:

“For the purposes of industrial injuries benefit an accident arising in the course of employed earner’s employment shall be taken, in the absence of evidence to the contrary, also to have arisen out of that employment.”

36.  On the first issue, Lord Justice Pill held, at [20]-[21], that:-

“20. I am not able to accept Mr Chamberlain’s cogently expressed submission. The meaning of the expression “personal injury caused by accident” was considered comprehensively in Faulds and the statements of principle are inconsistent with the assertion that the cardiac arrest was itself an accident within the meaning of section 94(1). The statements of Lord Clyde and Lord Hope maintaining the distinction between accident, that is a causative event or incident, and injury, apply to a cardiac arrest as they do to stress related disorder. The plain statements of Lord Clyde at page 1054 and of Lord Hope at page 1042, which echoed the statement of Lord Diplock in Hudson, and at 1043, are not confined to situations in which post-traumatic stress disorder is the alleged injury.

21. To allow injury and accident to merge indistinguishably would, as Lord Clyde put it at page 1054H, “open the way for industrial injury benefit to be available for any stress related disorder developed in the course of the employment and attributable to the employment”. That, stated Lord Clyde, was not what is intended by section 94(1) of the 1992 Act. It would also be available, on the respondent’s reasoning, to medical conditions such as cardiac arrest and Lord Clyde’s disapproval applies equally.”

37.  Similarly, Lord Justice Aikens held, at [53]-[54], that:-

“53. In my view it follows from this somewhat laborious view of the case law that the Commissioner erred in law in saying, at paragraph 13 of his decision, that because the claimant’s injury, i.e. the cardiac arrest, was improbable, sudden and an unlooked-for mishap or untoward event, the only issue that arose was whether the cardiac arrest had “the necessary causal connection with his work”. The Commissioner ought to have asked, in relation to the first issue: what external event or series of events (allied or not to some action by the claimant) had some physiological or psychological effect on the claimant?

54. I agree with the comments of Pill LJ at paragraph 22 of his judgment that difficult distinctions and problems of causation might arise in cases, depending on the facts. But the plain fact here is that there was no evidence that any external event, even if allied to some action by Mr Scullion, such as lifting a very heavy pile of papers, opening a file drawer which had stuck, or even lifting an arm to get heavy papers from a shelf, caused the cardiac arrest. Therefore, the claimant failed to prove that his personal injury, viz. the cardiac arrest and all that followed from it, was “caused by accident” within the meaning of section 94(1) of the 1992 Act.”

38.  On the second issue, Lord Justice Pill held, at [24]-[25], that:-

“24. The Commissioner did not refer to the deeming provision in section 94(3) of the 1992 Act, cited at paragraph 2 above, or say what use, if any, he made of it. I comment only that I do not accept Mr Chamberlain’s submission that, on a consideration of whether the injury was caused by accident arising out of the employment, the issue on the present facts was concluded by an application of that deeming provision. Mr Chamberlain submitted that it applied decisively in the respondent’s favour because there was an absence of evidence that the accident did not arise out of the employment. I do not accept that submission because the evidence did not all point in one direction. There was evidence that mild coronary artery disease was present and might be a substrate. There was also evidence that the respondent looked unwell on arriving at work and he appears to have acknowledged that by saying that he would go home when he had finished his work. That was capable of being evidence that the accident had not arisen out of this employment.

25. In such circumstances, the task of the decision maker, as submitted by Ms Demetriou for the appellant, would be to consider the evidence as a whole and reach a conclusion as to whether the injury caused by the accident arose out of the employment. Lord Goddard, in R v National Insurance (Industrial Injuries) Commissioner Ex parte Richardson [1958] 1 WLR 851, stated, at page 855:

“Those are the words of the section [the predecessor to section 94(3)], and therefore let it be conceded that if a person proves merely, and there is no other evidence except, that he suffered an accident in the course of his employment, then it is to be deemed, it is taken to be proved, that it arose out of the employment. But if there is evidence to the contrary by whoever it is given, that is to say, the facts which are before the commissioner can amount to evidence to the contrary, then the presumption or the deeming disappears, and if once that deeming disappears it is then for the applicant to prove that the accident did arise, not only in the course, but also out of, his employment.”

39.  I now turn to Hong Kong’s authorities.

40.  In Sit Wing Yi Sibly v Berton Industrial Ltd [2011] 4 HKLRD, the facts can be found at the headnote as follows:-

“X, the deceased, was found slumped on the floor of a toilet at work with blood in his mouth and nose. He died before reaching the hospital. No autopsy was performed before X was cremated. Two pathology experts concluded that X suffered a “sudden cardiac death”, but could not determine the cause of his death as there was “no evidence of any physical distress that day” nor “that the death was due to a pre-existing congenital or hereditary condition or related to his previous medical condition [two episodes of haemoptysis (coughing of blood)] ... [or that] the death was a result of his employment.” X’s widow, P, applied for compensation on the ground of “personal injury by accident arising out of and in the course of employment” under s.5(1) of the Employees’ Compensation Ordinance (Cap.282). The Judge dismissed P’s claim, holding there was insufficient evidence that an accident had caused or contributed to X’s death.”

41.  Tang V-P (as he then was), after considering various English authorities cited in the case, held, at [37]-[38], that:-

“37. Mr Sakhrani did not complain about the learned Judge’s findings of fact. Rather, he submitted that the learned Judge had erred because she thought the claimant had to show that there had been an accident. In the present case, I agree with Mr Sakhrani that, on the available medical evidence, unlike Leung Koon Chun v City Act Trading Ltd (unrep., DCEC 915/2000, [2002] HKLRD (Yrbk) 430), there is no evidence that the deceased had suffered from any disease which could have led to his sudden death and the cause of death is unknown. But there is also no evidence of any accident or incident which had caused or led to his death. On the authorities, s.5(1) required that the death must at least be “brought about by an undesigned untoward event happening in the employment”: per Lord Atkin in Fife Coal Co Ltd v Young.

38. I regret to say I agree with the learned Judge’s conclusion on the facts and the law. I must dismiss the appeal.”

42.  Yuen JA also held, at [41]-[43], that:-

“41. It seems to me that that argument elides the concepts of “injury” and “accident” in the phrase “injury by accident”. The unexpected nature of the “injury” itself does not constitute the act or event or occurrence of a mishap which is the “accident”. An applicant for compensation must show that there has been an accident that produced the injury (see Fife Coal Co Ltd v Young [1940] AC 479, 486 and Fenton v J Thorley & Co Ltd [1903] AC 443, 453: “an unintended and unexpected occurrence which produces hurt or loss”).

42. Death caused by disease alone would not qualify for compensation even if the disease was unknown (and thus unexpected). There would have to be an acceleration of the death by a particular (even if not unusual) act of exertion in the course of employment — in which case the death may be said to have been caused by an accident (Ormond v CD Holmes & Co [1937] 2 All ER 795, 800). Even if there was an “internal accident”, ie a physiological change invisible from outside the body (such as a rupture of an aneurysm), it must still have been brought about by “an undesigned untoward event happening in the employment” (Fife Coal Co Ltd v Young, p.488).

43. Applying the authorities to the facts of the present case, the deceased’s death was the injury, but to obtain compensation, the applicant needed also to prove a specific mishap which produced the death (the accident). None was proved. According to the deceased’s colleagues, he had spent an ordinary working day in his clerical job, and there was no proof of any particular acts of exertion nor stress (see the judgment at para.20).”

43.  The case went on to the Court of Final Appeal. In Sit Wing Yi Sibly v Berton Industrial Ltd (2013) 16 HKCFAR, Bokhary NPJ held, at [17]-[21], that:-

“17. We were asked to reverse the Court of Appeal’s dismissal of the widow’s appeal to them against the District Court’s dismissal of her claim. The human sympathy due to the deceased’s family is obvious. But as a matter of law, the claim was met by an insuperable difficulty due to the fact that the cause of the deceased’s death is unknown. The expression “injury by accident” plainly encompasses cause and effect, with accident as the cause and injury as the effect. Without a known cause of death, the injury can hardly be found to be an injury by accident. Contending for a concept of accident and injury as one and the same event is to say that cause and effect can be one and the same thing. Axiomatically they cannot…

21. It is undoubtedly the law that the accident must be distinct from the injury, with the accident being at least a contributory cause and the injury being the effect.”

44.  It is noted that there was no suggestion in Sit Wing Yi Sibly v Berton Industrial Ltd that the change of the phraseology in the UK legislation (from “personal injury by accident arising out of and in the course of the employment” in the 1897 Act to “personal injury caused after 4 July 1948 [the date when the new system was to come into force] by accident arising out of and in the course of the employment” in the 1946 Act) has the effect of rendering any of the authorities based on the new phraseology distinguishable in the application of the ECO. Mr Shum and Mr Szeto also confirm that they do not so suggest in the present case.

45.  Mr Shum relies upon Yu Po Ching v China State Construction Engineering (Hong Kong) Ltd and Kwong Hing Marble Work Company DCEC 1673/2013 (unreported, 13 February 2017). In particular, Mr Shum refers to [98] of the judgment, in which Deputy District Judge Elaine Liu held that:-

“The respondents suggested that there was no specific event that can be identified as the "accident" happened in the present case. As I have stated above, accident can be extraneous or internal. In my view, having reviewed the entire evidence and the law, the unexpected unlooked-for mishap or untoward event that happened to the Deceased, (the accident) was the infacrtion.”

46.  With my greatest respect, it appears to me that the learned Judge’s approach cannot sit well with the recent authorities such as Chief Adjudication officer v Faulds [2000] 1 WLR 1035, Secretary of State for Work and Pensions v James Scullion [2010] EWCA Civ 310, and also the decisions of the Court of Appeal and the Court of Final Appeal in Sit Wing Yi Sibly v Berton Industrial Ltd, all of which emphsised the distinction between accident and injury. It also appears to me that Chief Adjudication officer v Faulds [2000] 1 WLR 1035, Secretary of State for Work and Pensions v James Scullion [2010] EWCA Civ 310 were not cited to the learned Judge. I therefore will not apply Yu Po Ching v China State Construction Engineering (Hong Kong) Ltd and Kwong Hing Marble Work Company DCEC 1673/2013 (unreported, 13 February 2017).

47.  After the review of the above authorities, I consider the proper approach in finding “injury by accident” under the ECO is as follows.

48.  Despite Mr Shum’s able arguments, I agree with Mr Szeto that the Applicant’s case and approach (ie the accident in the present case is the cerebral stroke on 25 February 2017) is not consistent with the recent authorities, such as Chief Adjudication officer v Faulds [2000] 1 WLR 1035 and Secretary of State for Work and Pensions v James Scullion [2010] EWCA Civ 310. In these cases, the House of Lords and the English Court of Appeal approved Lord Diplock’s formulation of “accident”, namely there must be something “external which has some physiological or psychological effect upon that part of the sufferer's anatomy which sustains the actual trauma, or some bodily activity of the sufferer which would be perceptible to an observer if one were present when it occurred”. The Applicant’s cerebral stroke on 25 February 2017 (which resulted in the loss of consciousness of the Applicant) is something internal and therefore cannot constitute an “accident”.

49.  While the Applicant’s contention may have its root from authorities like Fenton v J Thorley & Co Ltd and Clover, Clayton & Co Ltd v Hughes [1920] AC 242, the Court of Appeal and the Court of Final Appeal in Sit Wing Yi Sibly v Berton Industrial Ltd have considered these authorities as well as the more recent ones. Both decisions emphasised the distinction between accident and injury and the need to identify and prove a specific “accident”. They are consistent with Chief Adjudication officer v Faulds [2000] 1 WLR 1035 and Secretary of State for Work and Pensions v James Scullion [2010] EWCA Civ 310.

50.  In my view, an applicant under section 5 of the ECO is required to, first of all, identify an event or a series of events which constitute the “accident”, which must be something “external which has some physiological or psychological effect upon that part of the sufferer's anatomy which sustains the actual trauma, or some bodily activity of the sufferer which would be perceptible to an observer if one were present when it occurred”.

51.  Secondly, the applicant must show that the “accident” caused or contributed to the injury.

52.  Thirdly, the applicant must prove that the accident occurred in the course of employment and arising out of the employment. In this connection, while the applicant can rely on the presumption or deeming provision under section 5(4)(a) of the ECO in the absence of evidence to the contrary, if there is evidence to the contrary by whoever it is given, then the presumption or the deeming disappears, and it is then for the applicant to prove that the accident did arise, not only in the course, but also out of, his employment. (See: see R v National Insurance (Industrial Injuries) Commissioner Ex parte Richardson [1958] 1 WLR 851, as cited in Secretary of State for Work and Pensions v James Scullion [2010] EWCA Civ 310, at [25])

D2.  Applying the proper approach to the present case

53.  I have set out the particulars of the Application in Section A above. According to [7] of his closing submissions, Mr Shum submits that:-

“(3) Paragraph 3(d) … is under the heading of “Nature of injury”. The contents stated thereunder must be understood to mean: the acute cerebral stroke (which is the accident, i.e. the sudden loss of consciousness stated in paragraph 3(c)) “caused a cardiac arrest and failure of the lungs. Chow has been in a state of coma ever since the happening of the accident on 25 February 2017”.

…

(8) In the Applicant’s written and oral Opening Submissions and throughout the trial, the Applicant made it absolutely clear what the Applicant’s case is: the accident is the cerebral stroke resulting in the injuries of cardiac arrest and the state of coma.”

54.  In my view, with respect, there is no proper identification by the Applicant of the event or a series of events which constitute the “accident”. As I have said above, the cerebral stroke which resulted in the loss of consciousness of the Applicant on 25 February 2017 is “injury” and not “accident”.

55.  In the witness statement of Madam Man Wai Tong (“Madam Man”), the Applicant’s mother, she refers to the Applicant’s overtime work from April 2016 to February 2017. She also refers to the work sheets disclosed by the Respondent in relation to the period between November 2016 and February 2017 and agrees with the information recorded therein. She emphasises the increase of overtime work from 26.4 hours/month (the average between March and September and November 2016) to 54-55 hours/month (in December 2016 and January 2017). Assuming that the Applicant’s case on “accident” can be construed as his overtime work, it is still unclear which day or days of the overtime work constitute “accident” and therefore caused the injury on 25 February 2017.

56.  The same lack of identification can be found in the medical expert reports. Although the experts address generally the issue whether the Applicant’s overtime work and the related stress caused his injury, there is no specific identification of the causative incidents.

57.  For these reasons, I consider the Applicant has failed to identify properly the “accident” under section 5 of the ECO.

58.  Further, in my view, the Applicant has also failed to prove that the Applicant’s overtime work and the related stress (assuming they are properly identified as “accident” under section 5 of the ECO) caused or had any real contribution to his cerebral stroke (i.e. injury) on 25 February 2017. In this regard, I prefer Dr Yu’s evidence over Dr Kan’s evidence.

59.  First of all, the mechanism of how stress can cause or contribute to cerebral stroke is not disputed between Dr Yu and Dr Kan as follows:-

(1)  Chronic stress may (a) raise catecholamine and (b) cause hypertension.

(2)  Higher catecholamine may increase (a) blood lipid levels, (b) blood clotting and (c) atherosclerosis, and ultimately lead to cerebral stroke.

60.  There is no evidence of hypertension in this case. Further, while it was agreed that catecholamine level cannot be checked, blood lipid levels can be, and the result should be available. The Applicant, however, has not adduced such evidence.

61.  Secondly, Dr Kan accepts that the stress leading to the above development should be a long-term one, although he cannot give a definition of that. In the present case, the emphasis of the Mr Shum was placed on the stress of the Applicant roughly during the 2 months before 25 February 2017. I tend to agree with Dr Yu that such a short period of stress, if any, is unlikely to have any significant contribution to the haemorrhage at the medulla oblongata of the Applicant.

62.  Thirdly, it is not disputed that the Applicant was liked and well respected by his supervisors and colleagues at all material times. While he did have long working hours, his working condition did not appear to me to fit into the description of “high demand-low control” as suggested by Dr Kan.

63.  Fourthly, the Applicant’s working hours peaked in December 2016 (55 hours overtime) and January 2017 (54 hours overtime). In February up to 25 February 2017, his total overtime decreased to 29 hours. On 25 February 2017, although it was a rest day and the Applicant therefore did work overtime on that day, it was not suggested that his work on that day was particularly stressful.

64.  Fifthly, I agree with Dr Yu that after the process of elimination, the most probable cause for the stroke of the Applicant was that he had a small vascular malformation at the medulla oblongata which ruptured and bled. The bleeding from a cerebral vascular malformation can occur any time, no matter whether the patient is at work or at rest. Although this theory cannot be verified because the rupture itself would destroy the malformation and the Applicant’s vegetative state precludes further investigations, I am satisfied that Dr Yu’s theory is more consistent with all the other available evidence.

65.  Consequently, although I have strong sympathy with the Applicant, I have to dismiss the present claim.

66.  As I have alluded to in Section C above, Mr Szeto further submits that the Applicant’s claim should be dismissed on the following additional grounds:-

(1)  The only possible “accident” in the present case is the normal day-to-day work which allegedly caused stress to the Applicant. It lacks an “untoward” element to constitute an “accident”.

(2)  Work stress is a continuous process and cannot amount of an “accident” as defined by the ECO.

67.  So far as the “untoward” element is concerned, Mr Szeto relies on the Court of Appeal’s decision in Sit Wing Yi Sibly v Berton Industrial Ltd [2011] 4 HKLRD, which quoted Fife Coal Co Ltd v William Young [1940] AC 479. However, it also appears to me that in Chief Adjudication officer v Faulds [2000] 1 WLR 1035 and Secretary of State for Work and Pensions v James Scullion [2010] EWCA Civ 310, their Lordships considered that an “accident”, being a causative event of “injury”, can be an expected event, although it sustains an unexpected injury.

68.  As regards the process argument, I also note Lord Hope’s dicta in Chief Adjudication officer v Faulds [2000] 1 WLR 1035 that “the mere fact that the condition may be said to be due to a process will not be sufficient to defeat the claim”.

69.  As I have already concluded that the Applicant’s claim should be dismissed on the grounds as set out above, I do not propose to deal with Mr Szeto’s additional grounds.

E.  QUANTUM

70.  If I am wrong on liability, the quantum is not seriously disputed by the parties.

71.  The assessments under sections 9, 10 and 10A as submitted by the Applicant are as follows:-

(1)  HK$2,502,720 under section 9;

(2)  HK$731,717.07 under section 10; and

(3)  HK$322,663 under section 10A.

72.  The total amount of compensation should therefore be HK$3,557,100.07 with the usual award of interests.

73.  I also put on record that the Respondent agrees not to pursue the repayment of HK$350,049.52 if the Applicant’s claim fails.

F.  CONCLUSION

74.  For the reasons above, I dismiss the Applicant’s claim. There also be a costs order nisi that costs of the Application be borne by the Applicant (to be taxed if not agreed) with certificate for counsel and the Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

75.  I thank Mr Shum and Mr Szeto for their helpful assistance and submissions.