IP YIU v. POLYSTYRENE FOAM PRODUCTS FACTORY LTD Respondent

CACV 251/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 251 OF 2009

(ON APPEAL FROM DCEC NO. 160 OF 2005)

________________________

BETWEEN

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon Rogers VP:

1.  This was an appeal from a judgment of Her Honour Judge Mimmie Chan dated 16 October 2009. The matter before the judge was an application for employees’ compensation. The judge found that the applicant had sustained an injury on 29 December 2003 whilst at work. On that basis she found liability against the respondent, the applicant’s employer. The total compensation was agreed at $1,498,039, to which was added interest.

2.  At the conclusion of the hearing of this appeal, this appeal was dismissed.  In view of the fact that this court considered that that this appeal should never have been brought, the applicant was awarded his costs of this appeal on an indemnity basis with legal aid taxation.  We now give our reasons in writing.

Background

3.  The applicant was employed as a technician in the respondent’s factory.  It appears that the factory was crowded with machinery used in manufacturing polystyrene foam boxes.  It seems that the factory’s business had not prospered and the applicant was left as the sole worker.

4.  The applicant’s evidence, which the judge accepted, was that he had hit his upper back or neck against part of the metal safety gate of one of the moulding machines.  Whilst mentioning that the applicant was inarticulate, the judge went on to say that she considered that he was honest.  It goes without saying, that the judge had the advantage, which this court did not have, of having seen the applicant and having heard his evidence and having seen the way he responded in cross-examination.

5.  It was the applicant’s case that immediately after he had hit himself on the machine he felt some pain in his upper back or neck area; he stopped and rested for about 15 minutes and rubbed ointment where it hurt. Nevertheless, he continued to work until about 5 pm that day.  One takes into account the fact that he was the only person working in the factory.  If he had not continued to work nobody would have carried on. His evidence was that he applied further ointment that evening and his wife says she saw him doing it.  He went to work, as usual, early the next day but at about 9:30 am he felt pain in his chest and back.  The pain became so severe that he said he felt it necessary to go to see his doctor.

6.  Dr Chan, who was his general practitioner, thought that the applicant was suffering from influenza which had “got into his bone” and that this caused pain in his chest and back.  He prescribed a number of medicines.  The doctor’s notes show that there was generalised arthralgia, i.e. joint pain, malaise but no running nose, no cough, no sweating and no sore throat.  The blood pressure was recorded as being 80/40.  As a layman, I would observe that that would, seemingly, be rather low.  The medicines prescribed were Ponstan, Panadol, Neurovit, Bisolvon, Clarityn and Voltaren gel topical.  That would appear to have been a combination of pain relievers, cough medicines, anti-allergy (or antihistamine) and anti-inflammatory medicines.

7.  The judge described what happened next in paragraph 3 of the judgment:

“On 31 December 2003, because the pain in his chest and back was getting better, Mr. Ip went to work as usual. He worked until about 3 pm, when the pain in his chest and back suddenly got worse. He stopped work and returned to Dr. Chan’s clinic, where he was given an injection and further medication. When Mr. Ip was resting at home that day, his pain progressively increased, to the extent that he sought treatment at the Accident and Emergency Department of the Tuen Mun Hospital ("Hospital") some time after 6:30 pm. Whilst at the Accident and Emergency Department, Mr. Ip suddenly felt numbness all the way from his toes to the chest, lost sensation from his lower limbs, and developed paraplegia. He received urgent treatment, and was diagnosed with spinal epidural haematoma ("SEH"). The MRI scan showed extradural collection of blood on his spine, with acute cord compression at the upper thoracic (T1 to T3) level. An urgent operation was performed on 1 January 2004 to remove the blood clot at the C7 to T2 region. No active bleeder was noted during surgery, and the bleeding source was not found. Despite the decompression procedure, Mr. Ip remained paraplegic and is now wheelchair-bound for the rest of his life.”

8.  The judge summarised the issues which she considered arose in the case to be:

(1)    whether the applicant had hit his neck and upper back on 29 December 2003 as he alleged;

(2)   whether notice of the accident was given by the applicant to his employer; and

(3)   whether the accident at work on 29 December 2003 caused the applicant’s injuries.

9.  In a judgment, which I consider was meticulous and precise, the judge had clearly given full consideration to the evidence.  In coming to the conclusion that the applicant had hit his neck or upper back in the way he said, the judge took into account his evidence, she took into account the way he said it happened and she took into account the contention on behalf of the respondent that it could not have happened in the way the applicant said.  In this latter respect, the respondent had placed reliance on the records of the work done in the factory on the day in question and the fact that they only contained reference to an item which would have required moulds which, if installed, would have prevented the applicant getting into the machinery in the way he had described.

10.  The judge took into account the medical records and the absence of mention in those records of the applicant having hit himself on the machinery.  In doing so she referred not only to the applicant’s evidence but also the evidence of Mr Lee who was the proprietor of the factory.

11.  There was also a concerted attack on the applicant’s contention that the SEH could have been caused by the applicant having hit himself on the back or neck in the way he said.  Amongst other things, strong reliance had been placed by the respondent on the fact that it had been said that fresh blood had been found when the operation had been performed to relieve the SEH.  It was said that if the SEH had been caused by the applicant hitting himself more than 2 days earlier the blood would not have been fresh.  It was also said that any blow which the applicant had received could not have been of sufficient force to have caused the SEH, particularly as the location of the SEH was inside the spinal column and, therefore, protected.

12.  The judge took all these points into account. The judgment was succinct and to the point.

This Appeal

13.  On this appeal, Mr Barretto SC, who appeared on behalf of the respondent in this court but not in the court below, came to court with a notice of appeal that was many pages longer than the judgment in the court below.  He maintained that there were 26 valid grounds of appeal.  Whereas one might consider that on the law of averages at least one out of the 26 might be valid, I regret that I did not consider that was so.  The points sought to be argued were, for the most part, simply a repetition of the arguments in the court below.

14.  The first point taken was that there had not been an accident and that the suggestion that there had been an accident was a matter of conjecture largely raised by the applicant’s sister-in-law, who was now, unfortunately, not with us any longer.  Reliance was placed, in this respect, on one passage in the transcript, but, as was pointed out during the course of argument, that passage was not a matter of conjecture as to whether the applicant had hit himself on the machinery.  What had happened was that, primarily because the applicant had not considered that the fact that he had hit himself was relevant to his present condition and did not associate the fact that he had hit his back or neck with the subsequent pain and discomfort which ultimately led him to go to the hospital, the applicant and his family had been pondering the cause of the SEH.  Whereas the doctors at the hospital, who had previously been unaware of the fact that the applicant had hit himself on the machinery, had put the SEH down to being spontaneous, in other words not caused by any outside agency, the sister-in-law raised the query as to whether the fact that the applicant had hit himself could have been the cause of the SEH. The conjecture was thus as to the effect of any such blow, not as to whether it had happened.

15.  Much was made of the point that none of the medical reports prior to the discovery of the SEH made any reference to any trauma or the applicant having hit himself on the machinery.  Given the circumstances described above and the fact that the applicant had brushed off the incident as being simply one of many times when he hit himself on machinery and had, apart from rubbing ointment, taken no further notice it, it was the fact that he never mentioned it to any of the doctors. He did not see it was relevant.  It is clear that his symptoms from the time when he first found it necessary to visit the doctor were consistent with the onset of SEH, but I do not find it in the least surprising that he did not associate those symptoms with being hit on the back or neck.  It is thus very understandable that he did not mention the fact of having hit himself to any of the doctors.

16.  Reference has also been made to the fact that the applicant’s claim was launched some 11 months after the injury.  Nothing, it seems to me turns on that.  Frequently claims in respect of injuries are made after many months.  Given the applicant’s background, his education standard and the sort of work that he had had been doing, I consider that there is nothing suspicious in the fact that it took a long time before his claim was referred to a solicitor.

17.  There was further argument in respect of the supposed inconsistencies in the applicant’s accounts of his accident.  The judge had considered that fully in paragraphs 20-24 of the judgment.  She had come to the conclusion that she did not consider that there was any material inconsistency in what had been said at different times.  Furthermore, the reliance on any supposed discrepancy in what the applicant had said to any of the doctors was also misplaced.  When a patient is seeing a doctor he is not giving evidence in court and the exact circumstances of how he came about his injury may be glossed over.  Furthermore, when a doctor makes a record for his medical purposes, what the patient has said is not necessarily read back to him in the way a solicitor would do when he is taking a statement for use in court. In this instance the doctor concerned was ready to concede that he may have recorded matters wrongly.

18.  Severe criticism was made of paragraph 52 of the judgment it was said that the judge had put the onus on the respondent to show some other cause, such as a blow at some other time, in order to disprove the applicant’s case.  In my view, that criticism was misplaced.  The judge did no such thing.  Given the findings which the judge had already made, paragraph 52 was directed to whether the cause of the SEH could indeed have been the blow which had occurred, as the judge said, over 50 hours earlier.  In this respect our attention was drawn by Mr Fung SC, who appeared on behalf of the applicant in this court but not in the court below, to the medical literature in particular to the article entitled “Delayed post-traumatic epidural hematoma.  A review” which had appeared in the Neurosurgical Review Volume 18, Number 2, 109-122.  A comparison of what is said in that article with the judgment makes it clear that the judge must have had regard to it.

19.  In short, in my view, the respondent came nowhere near to being able to displace the factual findings made by the judge.

Hon Le Pichon JA:

20.  I agree with the Reasons for Judgment given by Rogers VP.

Hon Kwan JA:

21.  I agree with the Reasons for Judgment of the Vice-President.