|
cacv 33/2007
in the high court of the
hong kong special administrative region
court of appeal
civil appeal no. 33 of 2007
(on appeal from DCEC NO. 1315 of 2003)
______________________
BETWEEN
| |
WONG YUET YUNG |
Applicant |
| |
and |
|
| |
WAH FUNG HONG GAS ENGINEERING COMPANY LIMITED |
Respondent |
______________________
Before : Hon Rogers VP, Sakhrani and Lam JJ in Court
Date of Hearing : 31 January 2008
Date of Handing Down Judgment : 19 February 2008
______________________
J U D G M E N T
______________________
Hon Rogers VP:
1. This was an appeal from a judgment of Deputy District Judge S T Poon. The matter before the judge was a claim by the applicant under the provisions of the Employees’ Compensation Ordinance Cap. 282 (“the Ordinance”). The judge dismissed the applicant’s claim because he held that the applicant had failed to prove that an accident had occurred in the terms of the Ordinance namely that there had been personal injury caused to the applicant by accident arising out of and in the course of the employment. At the conclusion of the hearing of this appeal judgment was reserved which we now give.
Background
2. The applicant was a clerk employed in a shop in Sham Shui Po. At about 11 a.m. on 11 May 2002 the applicant went to a toilet which was located in a side lane about 10 feet from the main road where the shop in which she worked was located. There is no dispute that she suffered a stroke, probably at the time that she was returning from the toilet. The medical evidence was that the stroke was probably caused by hypertension but not by any physical injury.
3. The applicant’s pleaded case was that, when she exited from the toilet, water which was jetting from a nozzle of a washing pipe used by staff of the Food and Environmental Hygiene Department hit strongly against her feet. The pleaded case goes on:
| “ |
It was so sudden that the Applicant was extremely horrified and felt discomfort instantly. She felt faint and therefore her body shifted a little sideward. As a result of the said accident, the Applicant suffered from acute stroke and sustained serious injuries to her head and shoulder.” |
4. The judge recorded the applicant’s evidence in paragraph 30 of his judgment where he said:
| “ |
The Applicant did not describe the degree of fright she had in her oral evidence. In fact she did not say she was frightened in her evidence-in-chief, apart from adopting the contents in her witness statement. Nor did she say she was frightened when she was specifically asked in cross-examination what she felt when the water hit at her.” |
5. This court was taken to the transcript of the applicant’s evidence and it is clear that the only time the applicant mentioned being frightened was when she was being cross-examined about the change in her case. It would appear that originally she had claimed to have been knocked to the ground because of the jet of water. Upon the amendment of the pleadings the allegation was as set out above.
6. The judge did not accept the applicant’s evidence that she was hit by a jet of water nor that she had been extremely horrified because of that. He went on to say that even if there had been some water splashed on the applicant whilst the workers had been washing the main street it would be very unlikely, if not incredible, that the applicant had been extremely horrified or even frightened by a mere splash of water.
7. In my view, having considered the evidence recorded in the transcript I see no ground for interfering with the judge’s finding of fact in this regard.
8. Mr Bharwaney, who appeared on behalf of the applicant in this court, sought to rely on section 5(4)(a) of the Ordinance which provides that:
| “ |
(4) |
For the purposes 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 the employment;” |
9. In my view the judge correctly construed this subsection. In doing so he had reference amongst other things to the decision in Regina v National Insurance (Industrial Injuries) Commissioner ex parte Richardson [1958] 1 WLR 851. In the course of his judgment Lord Goddard CJ pointed out that the words of the section, (the same as the present section) were “in the absence of evidence to the contrary” and not “in the absence of proof to the contrary” or “unless the contrary is proved”. He construed the section to mean no more than that if there was evidence that the accident did not arise out of the employment then no presumption arose at all.
10. As was pointed out by Mr Sakhrani, who appeared on behalf of the respondent, there clearly was evidence to the contrary. Although Dr Chin, who had given evidence on behalf of the applicant, had suggested that the stroke might have been related to stress caused by the presence of water, Dr Yu, whose evidence the judge accepted in preference to Dr Chin’s evidence, refuted that that would have been the case.
11. Dr Chin had said in his report that he opined that what had happened was that the applicant was caught by surprise when she opened the door of the toilet and saw a strong jet of water shooting towards her feet. That had caused her to be frightened and her blood pressure had suddenly shot up and caused the stroke. In the course of giving evidence:
| “ |
My postulation in this case is mainly stress caused a rise in blood pressure and this is one aspect that can be, you know, proven in many cases, then hypertension, because hypertension is one of the very, you know, definite cause for cerebral haemorrhage, therefore my postulation is the patient most probably suffered from a stress-induced rise in blood pressure and therefore caused a cerebral haemorrhage, okay?” |
12. As the judge recorded, Dr Chin was unable to produce any medical studies to support his postulation. The judge then went on to refer to the fact that Dr Yu had produced extracts from a medical textbook which listed out the risk factors for strokes, but notably absent from that list was emotional stress. Again, in my view, the judge was entitled to accept Dr Yu’s evidence that there were no medical studies to suggest that emotional stress can be a cause for cerebral haemorrhage or that “hypertensive cerebral bleeding which happened when patients became excited, anxious or frightened, were commonly seen in patient who was playing Mahjong, horse race or other types of gambling” as opined by Dr Chin in his report.
13. In those circumstances, although the applicant clearly suffered a stroke whilst at work and that would come under the category of being an accident, that accident did not arise out of her employment.
14. Finally, Mr Bharwaney argued that even if the presence or splashing of water was not the only cause of the applicant’s stroke it was a contributory cause. In my view on the evidence that was accepted by the judge there is no ground for a holding that the water was a contributory factor.
15. In those circumstances, whilst I would express sympathy for the applicant, I consider that there is no option but to dismiss this appeal. I would make an order nisi of costs in favour of the respondent.
Hon Sakhrani J:
16. I agree.
Hon Lam J:
17. I agree with the judgment of the Vice-President.
18. Mr Bharwaney opened this appeal by saying that he relied on the alternative case of the Plaintiff being startled by a splash of water. Quite apart from the fact that this was not the case as pleaded by the Plaintiff, the judge also made explicit finding against that scenario. In paragraph 36 of his judgment, the judge said,
| “ |
… even if there had been water splashed to the Applicant in the course of the workers washing the main street, it would be very unlikely, if not incredible, that the Applicant was ‘extremely horrified’ or even frightened by a mere splash of water.” |
19. In other words, the judge rejected the suggestion that the Applicant’s stroke was occasioned by a splash of water.
20. Mr Bharwaney had not advanced any grounds that would justify this court reversing this factual finding of the judge. Counsel prayed in aid the proximity of the stroke with the Applicant’s return from toilet to her place of work. I do not think the proximity points conclusively to a casual connection between the stroke and the return trip. I also agree with the Vice-President that the judge cannot be criticized for preferring the evidence of Dr Yu to that of Dr Chin. In the circumstances, this court cannot be satisfied that the finding of the judge was plainly wrong.
21. That leaves the Applicant with the position that she suffered a stroke whilst she was at work. There is no evidence suggesting that the stroke had anything to do with her work.
22. I respectfully agree with the Vice-President on the construction of Section 5(4)(a) of the Ordinance.
23. Hence, the Applicant failed to establish that the accident arose out of her employment. As a result, the appeal falls to be dismissed.
Hon Rogers VP:
24. There will therefore be an order in terms of paragraph 15 above.
(Anthony Rogers)
Vice-President |
(Arjan H Sakhrani)
Judge of the Court of First Instance |
(M H Lam)
Judge of the Court of First Instance |
Mr Mohan Bharwaney, instructed by Messrs W.K. To & Co., for the Applicant/Appellant
Mr Ashok K. Sakhrani, instructed by Messrs Cheng, Yeung & Co., for the Respondent/Respondent
|