WONG LOY for himself and other family members of WONG SIU PING, deceased v. BDO LTD

DCEC 2158/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2158 OF 2012

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REASONS FOR DECISION

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1.  This is an application by the applicant to adduce expert evidence on liability in an employee compensation claim. By a summons filed on 4 December 2013 (“the Summons”), the applicant sought the following order:-

“1. The Applicant do have leave to adduce psychiatric expert evidence which is to be limited to one Psychiatry expert;

2.   The Psychiatric expert report shall be filed and served within 56 days from date of Order hereof.”

2.  In support of the Summons, the affirmation of Luk King Kwong was filed (“Mr Luk's Affirmation”).  According to Mr Luk’s Affirmation, the reasons for adducing psychiatric evidence were as follows:-

“7. From the Answer pleaded by the Respondent, central to the issue is whether there was sufficient evidence to conclude that the Deceased committed an act of suicide “1^st issue”) Even adopting and relying on Mr. Siu's witness statement filed on behalf of the Respondent, that the Deceased has lost consciousness before his death, then in the point of view of psychiatric expert, whether the Deceased committed suicide if he jumped out from the window if he lost his consciousness or not arising from his own will? In this regard, the Deceased cannot be regarded as committing suicide as he did not jump out of the window deliberately. The second issue would be, whether it was possible for the Deceased to lost his consciousness or cause the Deceased to suffer from psychiatric illness due to the extremely pressing and pressured working schedule in a strange environment when the weather was physically demanding ... (“2^nd issue”) …..” (quote)

Background

3.  Wong Siu Ping, deceased (“the Deceased”), was employed by the respondent.  The respondent was a certified public accountants.  The Deceased’s duties included performing audit and accounting work at different places as directed by the respondent.  The Deceased’s job title was Associate 1-Assurance.  Before his death, the Deceased had worked for the respondent for more than one year.

4.  On about 8 January 2012, the Deceased and two other colleagues were dispatched by the respondent to perform their duties at Hohhot, Inner Mongolia, China for a period of about one week.  On about 14 January 2012, they were required to join their colleagues at Beijing, China for another one week's work.

5.  When the Deceased reached Beijing on 14 January 2012, he was assigned to share a room (“the hotel room”) in a hotel in Beijing (“the Hotel”) with Mr Siu Kin Lung, one of the Deceased’s colleagues who was dispatched from Hong Kong to Beijing on 9 January 2012. 

6.  On 20 January 2012, the Deceased and his colleagues were scheduled to return to Hong Kong from Beijing.

7.  In the morning on 20 January 2012, the Deceased fell down from a window of his hotel room.  As a result, he sustained multiple injuries.  He was sent to a hospital and was certified dead on 21 January 2012.  He died at 24 years of age.

The applicant’s case

8.  The applicant contended that the Deceased died in the course of his employment.  The fall of the Deceased from the window of the hotel room was an accident in the course of or arising out of his employment with the respondent.

The respondent’s case

9.  The respondent, however, contended that the death of the Deceased was his deliberate act of self-injury because the Deceased committed suicide.  Consequently, the Deceased was not entitled to any employee compensation.

10.  In its Form 2, the respondent stated that the Deceased suddenly suffered from mental disorder and jumped out from 7/F of the Hotel during office hours of his business trip in Beijing, PRC.  In Form 2, the respondent also agreed that the “accident” occurred in the course of work.

The applicant’s evidence

11.  The applicant had four witnesses.  They were the applicant, Miss Au Yue Ching, Mr Tsang Wai Yat and Miss Chu Kit Mei. Miss Au and Mr Tsang were the Deceased’s classmates of the secondary school.  Miss Chu was the Deceased’s teacher of the secondary school.  Each of them had given a witness statement. 

12.  According to the applicant's witnesses, the Deceased was described as a diligent, hardworking, kind, talkative, sociable, optimistic and positive person.  He was single with no financial difficulty or relationship problem.  He was described as non suicidal.

13.  Further, the Deceased and his father had no history of mental illness.

The respondent’s evidence

14.  The respondent had two witnesses. The first witness was Miss Leung who was the supervisor of the Deceased.  She had not gone to Hohhot or Beijing in January 2012.  Her witness statement included the employment information of the Deceased.  Anything about the incident on 20 January 2012 in Beijing in her witness statement was hearsay.

15.  The respondent’s 2^nd witness was Mr Siu Kin Lung (“Mr Siu”) who had joined the respondent since September 2011.

Mr Siu’s witness statement

16.  According to Mr Siu’s witness statement, he was dispatched to Beijing from Hong Kong on 9 January 2012.  He did not know the Deceased before 14 January 2012.  On 14 January 2012, he met the Deceased at Beijing.  The Deceased and Mr Siu then shared a room in a hotel.

17.  Mr Siu stated that he did not notice anything abnormal from the Deceased before 20 January 2012.  He remembered that at the night on 19 January 2012, the Deceased told him that he would not be working for the respondent on the following day because his performance was not good.  At that moment, Mr Siu thought that the Deceased’s employment was terminated by the respondent.

18.  In the morning on 20 January 2012, Mr Siu stated that the Deceased started demonstrating some strange behaviours. At about 7:45 am, the Deceased suddenly told Mr Siu that he had to pack his luggage as he was going to the airport.  Mr Siu reminded the Deceased that their flight should be in the evening.  Then the Deceased said that he needed the police to take him to the airport.  Mr Siu saw a police car parking outside the Hotel.  The Deceased opened the back compartment door of the police car. When he was confronted by a police officer, the Deceased said that he had to make a report.  Mr Siu asked the Deceased what had happened but the Deceased replied that he would rather tell the police at the police station.  Mr Siu then accompanied the Deceased to take a taxi to a police station.  During the journey to the police station, the Deceased disclosed to Mr Siu that he was guilty of deceiving the respondent for over-claiming travelling allowances and etc.

19.  Mr Siu then invited the Deceased for a chat in a restaurant.  After a brief chat, the Deceased suddenly ran out of the restaurant.  The temperature outside was below zero degree Celsius.  Mr Siu told the Deceased that they would take a taxi to the airport, but he actually asked the taxi driver to take them back to the Hotel.  When they reached the Hotel, Mr Siu noted the Deceased kept on repeating his words.  Mr Siu then asked for assistance from other colleagues.

20.  However, the Deceased locked himself up in his hotel room for about 25 to 30 minutes.

21.  When the hotel staff forced open the door of the hotel room, he found that two windows were open and the Deceased was nowhere in the room.  When the hotel staff and Mr Siu looked out from the windows, they saw the Deceased on the podium down below, with a pool of blood around him.

22.  Mr Siu then tried to rescue the Deceased. Eventually, the Deceased was sent to hospital.  Unfortunately, he was dead.

23.  At the end of his witness statement, Mr Siu reckoned that the Deceased had mental problems.

The law

24.  Section 5 of the Employee Compensation Ordinance (Cap 282) stipulates that:-

“(1) Subject to subsections (2) and (3), 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.

(2) No compensation shall be payable under this Ordinance in respect of:-

...

(b) any incapacity or death resulting from a deliberate self-injury;

...

(4) 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; ...”

25.  Regarding the legal principles of granting leave to adduce expert evidence, the guiding case is Fung Chun Man v Hospital Authority and anther (2001) HCPI 1113/2006, in which the Court of First Instance held that:-

“However, after the enactment of the CJR, it is clear that the court's discretion, whether or not to grant leave to a party to adduce expert evidence, is to be exercised within the ambit of the court's management powers. Those powers must be exercised in the light of the underlying objectives of the CJR, including the need to ensure the costs effectiveness of the proceedings; to ensure that case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between parties” (per Bharwaney J at para 9 thereof)

“The expert evidence can only be adduced with leave of the court and, in deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR” (per Bharwaney J at para 11 thereof)

“Chu J, as she then was, referred to Barings PLC v Coopers & Lybrand and concluded, in Wong Hoi Fung v American Assurance C (Bermuda) Ltd [2002] 3 HKLRD 507, that the expert evidence must be reasonably required to resolve the issues before the court before leave would be granted to adduce it.” (per Bharwaney J at para 14 thereof)

26.  The guiding criteria for granting leave to adduce expert evidence are relevance, necessity and probative value: Chan Kwok Ming v Hitachi Service Co Ltd (HCPI 322/2002); Chan Shu Wing v The Link Management Ltd and another (2013) (unrep, DCPI 1883/2011); Li Siu Ping & Anor v Perfecta Dyeing, Printing & Weaving Works Ltd (2007) (unrep, DCPI 901/2006).

27.  The same three criteria apply to employee compensation cases: Ip Sau Lin v Hospital Authority (2009) (unrep DCEC 584/2007, at para); Abid Khan v Queen Wan Limited (2009) (unrep, DCEC 71/2008, at para 50 thereof).

28.  Regarding adducing expert evidence on the issue of liability, it was held in Poon Kwok Wing Ernest v Airport Authority (2006) (unrep, HCPI 305/2004) that:-

“...... The law is quite clear that only in exceptional circumstances will a party be allowed to adduce expert opinion evidence in trying to reconstruct what happened in an accident, and this case does not come within such exception.”(per Suffiad J at para 45 thereof)

Analysis

29.  In the present case, the burden of proving deliberate self-injury rests firmly on the respondent.  Whether the Deceased had committed suicide is a serious factual dispute.

30.  It is expected that the respondent shall rely on factual evidence of Mr Siu to prove that the Deceased had committed suicide on 20 January 2012 at the Hotel.

31.  The respondent did not seek to rely on any medical evidence to show that the Deceased had mental problem on 20 January 2012.

32.  Mr Siu had no expertise on psychiatry.  Anything said in his witness statement about the mental state of the Deceased on 20 January 2012 was his own opinion only.

33.  However, the applicant now applies for leave to adduce psychiatric evidence.  The second reason for making this application as stated in paragraph 7 of the Affirmation of Mr Luk, ie 2^nd issue, was not easy to follow.  At this hearing, Mr Luk for the applicant clarified the applicant's position.  Mr Luk explained that in the morning on 20 January 2012, the Deceased was “unconscious” due to his mental problem.  Thus, anything he did on that day would not be regarded as a deliberate act.  The cause of the so-called “unconsciousness” was mental illness.  At the hearing, Mr Luk further clarified that by the words “unconscious”, he actually meant insane.  Mr Luk said that if the Deceased was insane shortly before he fell down from the window, the fall could not be regarded as a deliberate act for the purpose of s 5(2)(b) of the Employee Compensation Ordinance.

34.  It is pertinent to note that the Deceased had no history of mental problem.  He had not consulted any psychiatrist before.  There were no previous consultation records or medical reports at all.  It is hard to see how the expert can possibly conduct any examination of the mental state of the Deceased, or commented on any previous mental report of the Deceased.

35.  Further, the applicant had not specified the scope and extent of psychiatric evidence to be adduced.  If leave were granted, the applicant might return with an expert report of more than 500 pages covering all possible causes of sudden mental disorder and the respective behaviours of those patients.  The expert might take us to a full visit to the science of psychiatry.  In reply, the respondent’s expert might well so do the same thing by taking the court to visit the other side of the science of psychiatry.  Consequently, the unspecified scope and extent of psychiatric evidence will no doubt increase the costs of both parties and cause delay of these proceedings.

36.  At the hearing, Mr Luk tried to limit the scope of psychiatric evidence to be sought.  Mr Luk said that psychiatric expert evidence would be limited to two questions on top of the 1^st issue and 2^nd issue mentioned hereinabove.  Mr Luk framed the two questions as follows:-

“Question 1: Would a person have a similar background as that of the Deceased will be suffered from psychiatric illness due to extremely tight working schedule, worked in strange environment, and the weather condition is not familiar to him?

“Question 2: Would the Deceased be affected by the surrounding circumstances, such as tight working schedule, when he worked at thousand miles away from his home, coupled with low temperature?”

37.  Mr Ngai for the respondent wondered what sorts of materials should be furnished to the expert, should he be required to stay in Hohhot and Beijing for two weeks in January in order to experience the weather condition there; or should the expert be explained all the details about accounting procedures, so that he could appreciate the extent of the Deceased’s work pressure, and etc.  Mr Ngai said that the applicant could adduce textbook materials about the possible causes of mental disorder.

38.  In my view, as the respondent had already admitted in Form 2 that the “accident” occurred in the course of work, the real issue is then whether the respondent can discharge its burden to prove that the Deceased committed suicide or deliberate self-injury on 20 January 2012.

39.  If the court accepts Mr Siu's factual evidence and concludes that the Deceased had committed suicide or attempted deliberately self-injury, it is immaterial whether he had mental disorder on the day in question, particularly when the respondent has not adduced any psychiatric evidence to prove the same. Similarly, even if the court accepts the Deceased had suffered mental disorder on the day in question, the court still needs to consider the factual evidence of Mr Siu and decides if Mr Siu’s factual evidence can prove that the death of the Deceased was caused by suicide or deliberate self-injury.

40.  The psychiatric expert sought by the applicant is likely to be a science of aetiology or an opinion of clinical causes of the Deceased’s acts, based on the information provided by Mr Siu in his witness statement.

41.  In my view, a judge in employee compensation cases, as a tribunal of facts, is entitled to use his or her common sense to approach the question in the same way as would a juror. Whether the Deceased had attempted deliberate self-injury or committed suicide is essentially a question of fact which can be answered by a tribunal of facts.  Whether the respondent can rebut the statutory presumption to show the same is a mixed question of law and facts.

42.  As Mr Luk fairly conceded that the psychiatric evidence served as a further assistance to the court in reaching its conclusion.  Mr Luk conceded that even without psychiatric expert evidence, the court could still dispose of the real issues of the case.

43.  Having considered all of the facts in this case, I am not persuaded that expert evidence on liability in this case is relevant and necessary.  As the Deceased had died and no medical examination on him is possible, any psychiatric report will have little probative value. The Summons is dismissed.

[Parties make submissions on costs]