MARK LAREN RIVETT v. TREVI CONSTRUCTION CO LTD

DCEC 686/2017

[2018] HKDC 992

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 686 OF 2017

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D E C I S I O N

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A.　Introduction

1.  During Mr Rivett’s employment with the respondent, Trevi Construction Company Limited as a construction site superintendent, Mr Rivett (the applicant) suffered “Contact Dermatitis”, a skin condition caused by Mr Rivett’s allergy to potassium dichromate, a chemical material commonly found in cement and concrete. In these proceedings, Mr Rivett claims employees’ compensation based on Schedule 2 “Occupational Disease” of the Employees’ Compensation Ordinance.

2.  Interlocutory judgment was already entered by consent. 

3.  On the remaining issue on quantum, the Employees’ Compensation Board of the Labour Department, in its Certificate of Review of Assessment (“Form 9”), assessed Mr Rivett’s entitlement to sick leave at 29 days and the percentage loss of earning capacity at nil percent.

4.  Mr Rivett was not satisfied with the assessment stated in Form 9 and has appealed against it.  For the purpose of his appeal, Mr Rivett issued a summons for leave to adduce the evidence of Dr John Yu, a dermatologist.  Trevi opposed this summons.

5.  At the hearing of the summons, Mr Wong, the Legal Aid assigned solicitor, represented Mr Rivett. Trevi’s counsel was Mr Poon. During his submission, Mr Poon intimated that it was not contentious that Mr Rivett,

(a)  Has recurrent skin reaction to potassium dichromate, and the condition is likely to be recurring;

(b)  Should not take on jobs involving his exposure to potassium dichromate;

(c)  Has been exposed to potassium dichromate by his employment with Trevi; and

(d)  Needs to find jobs not involving exposure to potassium dichromate.

6.  Mr Wong stated that if Trevi was able to confirm its agreement in writing, Mr Rivett will no longer require any medical expert evidence and can withdraw the summons. This court therefore reserved its decision on the summons for Trevi to state its agreement in writing.

7.  In its reply by the solicitors, Trevi declined to agree to the issues that its counsel had seemed to have accepted at the hearing.  Hence, this decision.

B.　Trevi’s response

8.  In a letter dated 6 August 2018 from Trevi’s solicitors, Trevi’s stance in relation to the 4 matters set out in paras 5(a) to (d) above, is as follows.

(a)  Trevi agrees that Mr Rivett has a skin reaction to potassium dichromate, but the reaction will only be recurring if Mr Rivett has repeated and frequent direct contact with potassium dichromate.

(b)  Trevi disputes that Mr Rivett is not able to take on jobs that involve exposure to potassium dichromate. It is asserted that Mr Rivett can wear proper personal protective equipment to prevent any direct contact with the substance.

(c)  Trevi states that Mr Rivett’s previous exposure to cement or concrete may or may not include exposure to potassium dichromate.

(d)  Since Mr Rivett can protect himself from exposure to the allergic substance, Trevi does not accept that Mr Rivett cannot return to his previous job. It is contended that Mr Rivett’s change of job is a matter of personal choice. 

C.　Discussion

9.  It is common ground that Mr Rivett was allergic to potassium dichromate, which is found in a host of products that include cement commonly used in the building industry.  By admitting liability, Trevi is precluded from disputing that Mr Rivett’s employment with Trevi has caused Mr Rivett to suffer from Contact Dermatitis as a result of his allergy to potassium dichromate found in concrete.

10.  In his affirmation in support of the summons for adducing medical expert evidence, Mr Rivett stated that, in order to avoid contact with cement, he has since changed the nature of his job to by working as a casual decoration worker.  As a result, his earnings have been substantially reduced.  Mr Rivett therefore submits that he needs a medical expert to establish whether or not he can ever go back to work in the construction industry because of his allergy to potassium dichromate.

11.  In his submission for the adducing of the medical expert report, Mr Wong stated that a medical expert can assist the court to determine whether Mr Rivett can return to his previous job in construction sites, and whether his condition is likely to be permanent.

12.  In my view, the single most important question a court needs to determine when assessing compensation in this case is, as Mr Wong has correctly submitted, whether Mr Rivett can return to his previous job in construction sites, and whether his condition is likely to be permanent.  This evidence is directly relevant to the issue of whether Mr Rivett has suffered any loss of earning capacity as a result of his allergy to potassium dichromate.

13.  According to Trevi’s written response, Trevi is contending to the contrary and avers that Mr Rivett is able to return to his previous job.  Plainly, Trevi’s assertion that Mr Rivett’s allergy to potassium dichromate will only recur if there is repeated exposure to the substance will require expert evidence. Without any medical expert or an agreement from Trevi that Mr Rivett is unable to return to work in the construction industry, Mr Rivett will be awarded nil compensation for loss of earning capacity.  Mr Rivett clearly requires medical expert to determine this single most crucial issue.

14.  In my view, expert evidence is needed on:

(1)  Whether Mr Rivett’s allergy to potassium dichromate is likely to be permanent;

(2)  If so,

(a) whether Mr Rivett can return to his previous occupation working in construction sites;

(b) whether the wearing of protective gear can sufficiently protect Mr Rivett from exposure to potassium dichromate; if so, whether the wearing of such protective gear is practically viable;

(c) what are suitable jobs for Mr Rivett.

15.  A medical expert is needed to give an opinion on question (1), and as for question (2), I have some reservations whether a medical expert has the necessary qualification to give an opinion.   A different field of expert may be required.

16.  Despite my reservations that a medical expert may only be able to give an opinion on question (1), I am satisfied that evidence is needed to first and foremost to establish whether Mr Rivett’s allergy is likely to be permanent and recurring in the event of exposure to potassium dichromate. I find therefore that Mr Rivett has established the threshold requirement of necessity and relevance for the adducing of medical expert evidence. 

17.  If Mr Rivett’s appeal against Form 9 is unsuccessful, the court will assess his compensation based on Form 9. In such case, the amount of compensation will be small.  Yet, I do not agree that Trevi should use this as a reason to object to the adducing of the medical expert evidence.  This is because if the medical expert is able to corroborate Mr Rivett’s assertion that he is unable to return to his previous occupation, his compensation for loss of earnings will likely be assessed at a much higher percentage than the nil percent that the medical board currently assessed. 

18.  I have also addressed my mind as to Trevi’s concern about costs.  Trevi’s worries that if the court allows the application, Trevi will incur a disproportionate amount of costs by engaging its own expert.  To counteract this costs concern, I would urge the parties to make endeavours to agree to the appointment of a single joint expert.

D.　Conclusion and order

19.  I grant the following order:

(1)  Leave to Mr Rivett to adduce the evidence of dermatologist expert.

(2)  The parties do within 28 days submit a joint written application for the court’s approval for the appointment of the medical expert(s) (a single joint expert or separate experts and the issues such experts will give an opinion on), the date of the joint examination and the time for the preparation and the filing of the joint medical report.

(3)  A costs order nisi that Trevi do pay Mr Rivett’s costs of the summons, including costs reserved, to be taxed if not agreed.

(4)  Mr Rivett’s own costs are to be taxed in accordance with the Legal Aid Regulations.

(5)  The costs order nisi shall stand absolute if within 14 days no application is made by summons to vary it.

20.  I thank Mr Wong and Mr Poon for their assistance in this application.