MARK LAREN RIVETT v. TREVI CONSTRUCTION CO LTD

DCEC 686/2017

[2020] HKDC 317

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 686 OF 2017

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DECISION

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A. Introduction

1.  This is Mr Rivett’s application by summons dated 10 April 2019 (“Summons”) for leave to adduce the expert evidence of Professor Albert Chan (“Professor Chan”), a chartered construction and project manager, engineer and surveyor.

2.  Mr Rivett issued the Summons after this court in its decision dated 16 August 2018 (“Earlier Decision”) allowed his earlier summons (“Earlier Summons”) for leave to adduce the medical expert evidence of Dr John Yu (“Dr Yu”), a dermatologist.

3.  Trevi, as it did in respect of the Earlier Summons, also vigorously opposed the Summons. 

4.  This decision should be read in conjunction with the Earlier Decision.

B.    Chronology

B.1    Dr Yu’s opinion

5.  In the Earlier Decision, I held at [14] that expert evidence is necessary to resolve two issues relevant to the assessment of compensation.  The two issues are: -

“(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.”

6.  Subsequent to the Earlier Decision, the parties agreed to appoint Dr Yu as their single joint medical expert, whose opinion is contained in his report dated 4 November 2018 (“Yu’s Report”) and a short supplemental report dated 13 January 2019 (“Supplemental Report”).  By these reports, Dr Yu has provided his opinion on the two above-mentioned issues as follows.

7.  Question (1): Mr Rivett was diagnosed with “allergic contact dermatitis” (“ACD”) to potassium dichromate in cement.  Dr Yu opines that Mr Rivett’s allergy to potassium dichromate is permanent.

8.  Question (2) (a) and (b): Dr Yu opines that Mr Rivett could return to his pre-accident job as a full-time construction site supervisor provided that he wears “a full body suit that comply Type 4 level with European standards for chemical protective clothing in addition to the working gloves, working pants, working boots, goggles, a P100 mask and hat.  However, a full body suit and P100 mask may not a comfortable option in the summer in Hong Kong for Mr Rivett due to extreme heat and humidity.”

9.  A full body suit, according to the Supplemental Report, supplied by DuPont (a UK company) with shield number Type 4 or Type 4-B will be sufficient. The P100 rating mask was recommended to provide the highest respiratory protection.

10.  (The various items of protective clothing Dr Yu recommended in Yu’s Report and the Supplemental Report stated in [8-9] above are collectively referred to as “Protective Clothing”.)

11.  Question (2) (c): Dr Yu states that Mr Rivett “will be able to work in any other occupation[s] as long as it does not involve any contact with potassium dichromate such as a driver, security guard, service worker, sales, plant and machine operator, bar attendant etc”.

12.  Consequent to Yu’s Report and the Supplemental Report, Mr Rivett’s solicitors requested Trevi to agree that it is not practicable for Mr Rivett to return to work in construction sites, and that he would be restricted to working in jobs which would not involve exposure to potassium dichromate[1]. However, Trevi declined to agree to Mr Rivett’s request.  Mr Rivett issued the Summons seeking the adducing of expert evidence of Professor Chan on the practicality of using Protective Clothing in construction sites in Hong Kong.

B.2    Seeking information from DuPont

13.  Since DuPont is the product provider of the protective full body suit recommended in Yu’s Report, Mr Rivett’s solicitors were directed by this court to firstly seek information from DuPont on the practicality of using the Protective Clothing in construction sites in Hong Kong.

14.  Despite several correspondence exchanges[2] between Mr Rivett’s solicitors and DuPont between June and July 2019, DuPont however has not been able to provide any information.  Hence, the substantive hearing which was attended by counsel, Mr Lim for Mr Rivett and Ms Leong for Trevi.

C.    The Parties’ Stance

C.1    Undisputed legal principles

15.  It is not in dispute that the legal principles governing the adducing of expert evidence are the well-established criteria of relevance, necessity and probative value.  The applying party (Mr Rivett) has the burden in satisfying the court that his application fulfills these criteria.

C.2    Mr Rivett’s position

16.  Notwithstanding that no affirmations were filed, the parties’ positions have already been stated in their correspondence exchanges.  It is Mr Rivett’s case that Professor Chan, with his extensive research on building, construction safety and health, is suitably qualified to provide an expert opinion to resolve the issue of whether it is reasonably viable for Mr Rivett to wear Protective Clothing so as to enable him to return to his pre-accident occupation.

C.3    Trevi’s grounds of opposition

C.3.1 Not relevant

17.  Trevi however contended, through a letter[3] of its solicitors, that the wearing of protective gear was not a relevant issue to the trial on the assessment of compensation.  Its solicitors argued that Mr Rivett’s allergy to potassium dichromate was only his “personal health condition”, and was “not caused” by the injury he has suffered.

18.  In further elaboration by Trevi’s counsel, Ms Leong, stated in her written skeleton that Mr Rivett’s ACD was “NOT CAUSED by any accident arising out of or in the course of the employment. The allergy is [Mr Rivett’s] own medical / personal condition”[4].

19.  To bolster her arguments, Ms Leong further drew an analogy from a person with food allergy, such as peanuts.  It was suggested that an allergic reactions suffered by such person was the result of consuming the peanuts, but not by the allergy itself. Analogously, Ms Leong stated that Mr Rivett’s allergy to potassium dichromate would NOT have been caused by his employment with Trevi.

C.3.2 Not necessary

20.  In the absence of any affirmation filed in support of the Summons, Ms Leong stated that Mr Rivett had failed to adduce any evidence to justify the necessity of wearing Protective Clothing.  A fortiori, the necessity for the appointment of the proposed expert.

21.  In any event, Ms Leong contended that the question of practicality of Mr Rivett wearing Protective Clothing could be resolved by the trial judge, rather than having to be addressed by an expert.

C.3.3 Professor Chan’s expertise not applicable

22.  Lastly, Ms Leong also contends that Professor Chan, in spite of his impressive qualification, is not suitable to give expert evidence on Protective Clothing.  Professor Chan’s expertise, Ms Leong argued, is mainly on the protection of construction workers against heat stress and “Anti-heat stress uniform” technology (which will not be helpful). The proposed questions such as a worker’s tolerance level to and the recommended maximum temperature and humidity for the wearing of the Protective Clothing that Mr Rivett intended to ask Professor Chan to render an opinion on, Ms Leong suggested, have limited relevance.  It is because they are not specifically relevant to Mr Rivett’s situation.

D.    Filing of witness statements and lodging of further written submissions

23.  Trevi’s primary objection, as shown in Section C.3.1 above, is its contention that Mr Trevi’s ACD to potassium dichromate, like a person’s allergy to peanuts, was not caused by his employment with Trevi, but by his own allergy.  This argument appears to be at odds with Trevi’s admission on liability that causation (that Mr Trevi’s occupational disease was caused by his employment with Trevi) should no longer be at issue.

24.  Since Ms Leong’s food allergy analogy seems to be out of context and was not supported by authority, I felt it would be necessary for her to find supporting authorities that in the context of employees’ (or workmen’s) compensation.

25.  In order to move the case forward and help parties focus on the issues for the trial on assessment, I also ordered the filing and serving of the witness statements.

26.  Pursuant to the court’s directions, the parties filed and served the witness statements of Mr Rivett and Mr Matassoni for Trevi, Mr Rivett’s site supervisor.

27.  In the Further Submissions, Ms Leong stated that she was unable to find any authorities to support her proposition about the analogy of Mr Rivett’s condition to a person with food allergy.

28.  In response, Mr Lim, in his Supplemental Submissions, made reference to s. 43 (1) of the UK’s Workmen’s Compensation Act (1925), similar legislation to the Employees’ Compensation Ordinance (“ECO”). A reference was also made to an extract of a discussion paper on “Compensation for Occupational Asthma and Contact Dermatitis”[5], which identifies an allergic contact dermatitis (ACD) as an “Occupational Contact Dermatitis”. 

29.  Since liability is no longer in issue (as Ms Leong repeatedly reiterated in her Reply to Mr Lim’s Supplemental Submissions), I do not need to deal with Mr Lim’s submissions on the construction of s. 32, ECO, in relation to the meaning “is due to the nature of” employment.

30.  Similarly, there is also no issue that Mr Rivett’s ACD is an occupation disease recognized in law. Thus, there is no need to discuss the publication Mr Lim has diligently provided.

E.    Discussion

E.1     Whether Mr Rivett’s ACD was due to his employment?

31.  Ms Leong’s primary argument that Mr Rivett’s ACD was not due to his employment is, in my view, quite confusing.  According to my understanding, Ms Leong was trying to argue that Mr Trevi’s ‘allergy’ (like the peanut allergy analogy), which was his personal condition, was not a recognized occupational disease of “Contact Dermatitis”.

32.  In order to analyze Ms Leong’s contention, it is important to start the discussion with the definition of “occupational disease” in the context of ECO.  It is pertinently to note that “occupational disease” is not defined by a diagnostic name such as “Contact Dermatitis”, which Ms Leong accepted as a recognized occupational disease.  Rather, it is defined by the description of the symptoms an employee suffers.

33.  Pursuant to s. 3, ECO, “occupational disease” is defined as “any of the diseases specified in the second column of the Second Schedule and any recurrence or sequelae thereof”.  The second column of the Second Schedule contains a heading with these words “Description of occupational disease”.

34.  Admittedly, in the present case, the “occupational disease” which Mr Rivett’s claim is based on is pursuant to Item D1 of the second column of the Second Schedule.  Under this item, nowhere can one find any medical diagnosis of diseases such as “Contact Dermatitis” (which Trevi accepted) or “allergy” (which Trevi disputes having caused to Mr Rivett in his employment with the former).  Rather, the “occupational disease” is described as “Inflammation or ulceration of the skin produced by dust, liquid or vapour (including the condition known as chloracne but excluding chrome ulceration)”.

35.  According to the description of the “occupational disease”, Mr Rivett’s suffered an occupational disease of “inflammation or ulceration of the skin”, which Dr Yu has diagnosed medically as “ACD”.

36.  The publication Mr Lim has referred to in his Supplemental Submissions has also confirmed that “Allergy Contact Dermatitis”, which is the disease Mr Rivett was diagnosed to have suffered from the injury, is a recognized occupational disease.  Ms Leong has not sought to dispute such classification.  Hence, by arguing that Mr Rivett’s allergy is distinct from his Contact Dermatitis, Ms Leong, in my view, was trying to artificially separate Mr Rivett’s diagnosis of “Allergy Contact Dermatitis” into two different conditions.

37.  In advancing the argument that Mr Rivett’s ACD was not caused by the employment with Trevi, Ms Leong, in my respectful view, might have overlooked the presumption provided in s. 34, ECO.  Under this section : “presumption as to cause of occupational disease”, it provides that “if an employee who suffers incapacity … as a result of an occupational disease was within the period specified opposite to that disease in the fourth column of the Second Schedule immediately preceding such incapacity… employed in any trade, industry or process specified opposite to that disease in the third column of that Schedule, it shall be presumed, until the contrary is proved, that such disease was due to the nature of such employment” (Emphasis added).

38.  Thus, upon Trevi’s admission of liability, and by the operation of the presumption in s. 34, Trevi’s ACD is presumed to be due to the nature of employment with Trevi.

39.  For the reasons stated above, I must reject Trevi’s contention that Mr Rivett’s ACD is his own personal condition not caused by his employment.

E.2     Whether Protective Clothing impacts on loss of earning capacity?

40.  It cannot be disputed that at the trial of assessment of compensation, the issue of whether Mr Rivett can return to his pre-accident occupations is of primary importance.  However, a sub-issue on the practicality of wearing Protective Clothing has arisen from Yu’s Report.  Depending on how this question is determined, Mr Rivett’s compensation may be assessed in the following ways if it were determined that: -

(1)     The wearing of the Protective Clothing is reasonably practical. Under this circumstance, Mr Rivett should be able return to his pre-accident occupations in construction sites. The compensation will likely be minimal.

(2)     The wearing of Protective Clothing has restraints.  For example, Mr Rivett could only wear it under certain weather conditions or work situations.  These limitations may likely impact on his working capacity in terms of employability or the number of hours that he can perform his duties. Under such situation Mr Rivett’s assessed percentage loss of earning capacity will probably be higher than (1).

(3)     It is totally impractical to wear the Protective Clothing (for reasons of the Hong Kong climate, the costs of such Protective Clothing etc.).  In this scenario, Mr Rivett’s loss of earning capacity will likely to be much higher than the above two scenarios as he cannot resume his pre-accident occupations in construction sites.  He may likely need to engage in the alternative jobs Dr Yu suggested and suffer a reduction in income.  In this scenario, the court may need to assess his loss with reference to s. 9(1)(b), ECO, by considering the sort of employment which Mr Rivett is capable of undertaking, and probably adopting the formula laid down in Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HK LR 556.  A court may also find that Mr Rivett’s condition constitutes “special circumstances” under s. 9 (1A), ECO, should Mr Rivett’s loss be found to be far greater than the loss of physical capacity.  This may attract a much higher award.

41.  According to Mr Rivett’s witness statement, Mr Rivett does not know if the wearing of the Protective Clothing is reasonably practical. To avoid his exposure to potassium dichromate, Mr Rivett has not, since the accident, returned to his pre-accident occupations in the construction sites and engaged in alternative jobs.  He therefore asserts that he has suffered a reduction in earnings as a result of his ACD.  Hence, it is necessary for Mr Rivett to adduce evidence on the reasonable practicality of wearing Protective Clothing.

42.  Mr Matassoni for Trevi has also not provided any evidence on this question.

43.  Protective Clothing is not ordinary clothing but is clothing specifically designed to protect workers working in specific work environments or situations.  I am therefore unable to agree with Ms Leong that the question is a factual matter that a court can resolve.  I consider that a person with special knowledge of the design of such clothing is certainly required to assist the court.  In the circumstances, evidence on the practicality issue is relevant and necessary.  I respectfully disagree with Ms Leong’s argument that the practicality of wearing Protective Clothing is not a relevant issue for Mr Rivett’s claim for compensation for his loss of earning capacity.

44.  I note that Dr Yu has already stated his view on the matter of practicality.  It is unclear whether Trevi is taking issue with Dr Yu’s view.  In the circumstances, should Trevi dispute Dr Yu’s view in this regard, an expert needs to be appointed.

45.  The question is whether Professor Chan’s field of knowledge is suited to give evidence on this matter.

E.3     How should the evidence be adduced

46.  In my view, a suitable expert needs to, apart from having knowledge of the design of Protective Clothing, be a person with familiarity with matters such as the Hong Kong climate conditions, and the practice of the construction industry in Hong Kong as to whether there are instances of workers wearing similar type of Protective Clothing.

47.  In the event that the parties either fail to reach an agreement on the question of practicality, or, in the event that expert is required, the parties fail to agree on the appointment of an expert and Mr Rivett still wishes to appoint Professor Chan, Mr Rivett will need to file further evidence to satisfy this court that Professor Chan possesses the knowledge and expertise in the matters that I discussed in [46] above.

F.    Conclusion and order

48.  I grant the following order: -

(1)    Leave to the parties to adduce expert evidence on the practicability of using Protective Clothing in construction sites in Hong Kong;

(2)    The parties do within 28 days submit a joint written application for the court’s approval for the appointment of expert(s) (single joint expert or joint experts), and the time for the preparation and the filing of such expert report;

(3)    In the event that Professor Chan is intended to be appointed, Mr Rivett shall within 28 days file further evidence on the matters set out in [46] above;

(4)    There be a costs order nisi that Trevi do pay Mr Rivett’s costs of the Summons, including costs reserved and certificate for counsel, to be taxed if not agreed;

(5)    Mr Rivett’s own costs are to be taxed in accordance with the Legal Aid Regulations; and

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

49.  Lastly, I wish to express my gratitude to counsel for their research and assistance in this application.