CHEUNG WING TAN v. GOLDWOOD ENGINEERING LTD. AND OTHERS

DCEC445/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPANSATION CASE NO.445 OF 2000

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JUDGMENT

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[1] The Applicant, Mr. Cheung Wing Tan, then aged 48, was injured on 4th November 1998 in the course of his employment with the 1st Respondent, as a general labourer in the construction site near Victoria Park (the "Site"). He continues to suffer from headaches and nocturnal seizures after the accident.

[2] The Applicant claims compensation under various sections of the Employees' Compensation Ordinance, Cap. 282 (the "Ordinance") and he also appeals to this court against an assessment by the Employees' Compensation (Ordinary Assessment) Board dated 28th April 2000.

[3] At the material time, the Applicant was a general labourer recruited by Suen Suk Chiu ("Suen"), a gang leader, to work on the Site. The 1st and 2nd Respondent were the sub-contractor and principal contractor respectively, of the project. Originally, the Respondents denied that the Applicant was one of their employees; however, on 7th March 2001, the Respondents admitted liability and the hearing was on assessment of compensation only. Prior to trial, the compensation under s.10A of the Ordinance was agreed at HK$ 1,208.00.

[4] The Applicant had a craniotomy in 1982 and his pre-accident health condition was one of the main disputes. I will start by a brief history of the Applicant, how the craniotomy came about and how he was injured in 1998.

[5] The Applicant was a farmer in his native village in Shanwei in the Mainland. He is married with 4 children. In 1980, the Applicant literally swam to Hong Kong. The Applicant had an education of primary 2 and could hardly read or write Chinese; he speaks an obscure dialect called "Hoi Fung". After arriving in Hong Kong, he started working as a general labourer in construction sites.

[6] On or about 1982, the Applicant suffered from dizziness. Lacking any knowledge of the medical services available in Hong Kong and perhaps due to his communication problems, he sought medical treatment in Shenzhen. After two unsuccessful check-ups, on the third examination, a tumor was discovered in the Applicant's brain. Surgery was performed to remove the tumor. The Applicant testified that the craniotomy was a minor procedure and he was discharged from the hospital just a few hours after the surgery. The Applicant's recovery was uneventful and no medication was subscribed except for pain.

[7] On 4th November 1998, he was working in an underground well at the Site. The Applicant was required to fix heavy iron rings, weighting about 5kgs, while standing on an I-beam. The I-beam lifted and the Applicant fell from a height of approximately 3 metres. The heavy iron ring fell on the Applicant's head, luckily he was wearing a safety helmet.

[8] As a result of the accident, the Applicant suffered injuries to his chest, right leg and head. The Applicant was initially treated at the Queen Mary Hospital and was later transferred to the Tung Wah Hospital for recovery. While at Tung Wah Hospital, the Applicant suffered several attacks of convulsive seizure. The convulsion was treated with anticonvulsive medications. The convulsion is now under control but the Applicant continues to suffer from periodic nocturnal seizures. Both medical experts, Dr. Edmund Woo, on behalf of the Respondents, and Dr. Robert Ho, on behalf of the Applicant, agree that the Applicant's condition is more or less permanent.

[9] Before we get to the main issue in this matter, the parties disagreed on the Applicant's monthly earnings. The Applicant alleged that his basic wage was HK$650.00 per day and he worked 26 days per month, making his earnings HK$16,900.00 per month prior to the accident. The 2nd Respondent initially stated in Form 2 that the Defendant's monthly earning was HK$500.00 x 26 days, or HK$13,000.00 per month, then in the List of Income, dated 6th December 2000, stated the Applicant's daily wage as HK$500.00 per day, but no further earning details could be provided because the Applicant was not the Respondent's employee.

[10] At trial, the Respondents submitted a bundle of the Respondents' accounting documents and documents provided by Suen. The Respondents' document showed that Suen was paid HK$600.00 per day for each general labourer in his gang and the Applicant's average working days for the period between July 1998 and December 1998 was 21.38 days.

[11] Mr. Newman Wong, counsel for the Applicant, argued that although Suen gave a witness statement, he never testified in court, his records were hearsay and very little weight should be attached to them. Mr. Lai Kwok Leung ("Mr. Lai"), a director of the 2nd Respondent testified that Suen's records had been reconciled with records kept by the 2nd Respondent's staffs.

[12] As to the Respondents' own records, none mentioned the Applicant's income directly. Mr. Lai also testified that these records were kept by the 2nd Respondent's staffs and he had no personal knowledge of their compilation.

[13] On the other hand, the Applicant also had no record of any kind to substantiate the allegation that his income prior to the accident was HK$650.00 per day. Mr. Lai testified that the Site prohibited night work and although some overtime work were done by Suen on other sites, none were performed by the Applicant.

[14] The Respondents' records revealed that there was substantial correlation between the wage receipts, the hand written records, the monthly table of attendance and most importantly it contained the cheque numbers for the monthly payments made by the 2nd Respondent to Suen. I found that the documents disclosed by the Respondents were reliable evidence on the Applicant's income.

[15] Since the Applicant was unlikely to have earned more than what was paid by the 2nd Respondent to Suen. After listening to Mr. Lai's testimony and careful consideration of the documents, I concluded that the records submitted by the Respondents were accurate and contemporaneous record of the Applicant's work. The daily wage for the Applicant was HK$600.00 and his average monthly income immediately prior to the accident was HK$12,828.00.

[16] I now come to the considerable medical evidence. The most controversial part of the medical evidence was the allegation that the Applicant had suffered from seizures after his craniotomy in 1982. Both medical experts based their opinions on the assumption that the Applicants had suffered some seizures prior to the 1998 accident. Dr. Ho, assumed that there was one seizure immediately after the craniotomy and Dr. Woo assumed that the Applicant had continued nocturnal seizures after the 1982 craniotomy, although the Applicant did not realize it himself. The Applicant on the other hand flatly denied that he had any seizure before the 1998 accident.

[17] To understand these medical reports, we must look at the origin of the allegations of these pre-1998 accident seizures. The medical reports revealed that the Applicant's first Discharge Summary dated 8th November 1998, issued by Dr. Lai Hong Yee, Connie, did not mention any convulsion after the 1982 operation. It was in the second Discharge Summary issued by Dr. Lee Yuk Ming, Sunny, dated 10th November 1998, that a single episode of convulsion after the 1982 operation was mentioned. It was also stated that after anticonvulsant was prescribed, no other convulsion had followed until the 1998 accident. This "one episode" of convulsion later took on a different character. Dr. Chan Ping Hon in his memorandum, dated 14th June 1999, to the Labour Department stated:

"... Mr. Cheung had history of convulsion after his brain surgery 10 years ago in China. ... I believe it is very unlikely that the (later) convulsion would be a result of the work injury on 4th November 1998." (Emphasis added)

[18] Thereafter, all medical reports of the Applicant mentioned a "history of convulsion" after the 1982 operation. However, none of the doctors had access to the Applicant's medical record from the mainland when the "history of convulsion" was diagnosed. There could only be one other source for this information, the Applicant himself. The Applicant now denies having made that admission.

[19] During the Applicant's testimony, he revealed that there was no equivalent phrase in the Hoi Fung dialect for the Cantonese phase for seizure "Chiau Gun". The Applicant referred to the phase "Du Mo Chi" as equal to seizure in "Hoi Fung". Given the difficulty in communicating with the Applicant and the lack of an equivalent phrase for seizure in Hoi Fung dialect, I concluded that even if Drs. Lee and Chan had actually asked the Applicant if he had any seizures after the 1982 craniotomy, he could not understand the question. The Applicant's reply would be totally meaningless and any medical diagnoses based on that reply would also be meaningless. There was no blame attached to the doctors, given the time constraint in a public hospital setting and the lack of properly trained interpreters, the doctors could not have known whether their patient understood their questions or not.

[20] After careful consideration of the evidence, I have concluded that on balance of probability, the Applicant had never made any admission that he had suffered any seizure after the 1982 craniotomy.

[21] I now come to Dr. Woo's opinion that the Applicant has been suffering from continuous nocturnal seizures for 15 years without recognizing it.

[22] Dr. Woo had based his reasoning on one fundamental assumption - in terms of the probability of long-term seizures, the effect of a craniotomy was equal to a severe injury to the brain. Then using statistical data contained in the study 'A Population-Based Study Of Seizures After Traumatic Brain Injuries', published in The New England Journal of Medicine, where it was observed that from a study group of 328 patients with severe brain injuries, 95% of them had suffered some seizures within the first year of the injury. Dr. Woo concluded that it was improbable that the Applicant did not suffer from some type of seizure after his 1982 operation.

[23] Adding the fact that: (1) The Applicant is now suffering exclusively from nocturnal seizures; (2) He had been living in Hong Kong alone before his wife joined him after the 1998 accident; (3) At present, the Applicant had no knowledge of his nocturnal seizures, he relied on his wife to tell him that he had suffered a convulsion; and (4) The injuries suffered by the Applicant in the 1998 accident was "nothing more than a bump on the head" and could not have caused any long term seizure. Dr. Woo surmised that the "pathological cause" of the Applicant's seizure must have been the 1982 craniotomy. The Applicant must have been suffering from nocturnal seizures since 1982, without knowing it.

[24] This of course is the typical scientific method of analysis described in Ocean Tramping Co. Ltd. v. Lee Kin-kai, [1991] 2 HKLR 232 as the science of aetiology. Hunter J.A. stated:

"...Secondly, it is important to bear in mind that the law and medicine here, it seems to me, apply quite different standards. In law there is a sufficient causal connection if it is shown on the balance of probability that the accident was a substantially contributing cause of the injury. A cause is sufficient; it need not be shown to be the sole cause. The doctors' practice, what is known as the science of aetiology. In the words of one in particular, they look for 'clinical cause', proof certainly beyond reasonable doubt and perhaps beyond any doubt. They are looking for what Lord Kilbrandon called in McGhee v. National Coal Board [1973]1WLR 1 at p. 10 'an irrefragable chain of causation'".

[25] Dr. Woo's analysis, had suffered from the same problem, as a doctor he was looking for the "pathological cause", a cause that is beyond reasonable doubt, when in law we are only required to find a cause by balance of probability. I also could not accept Dr. Woo's opinion that the Applicant's first seizures, suffered within 2 or 3 weeks immediately after the 1998 accident, were "short-term post traumatic seizures" and had a completely separate origin from the "longer-term traumatic seizures" he is suffering now. While I understand the reasons that lead Dr. Woo to his opinion, I am afraid I cannot agree with his conclusion.

[26] To cut the matter short, our knowledge of the workings of the human brain is scanty at best. The effect of any known craniotomy is at most unpredictable. Here, we have no knowledge of the actual surgical procedure performed on the Applicant in 1982. There is no evidence that a patient's tendency to suffer seizures after a craniotomy equals that of a severe brain injury. In any event, the New England Journal of Medicine study involved only 328 patients with severe head injuries, hardly what I would call representative. Furthermore, there was no evidence that the Applicant had suffered any post-operative seizure after the 1982 craniotomy, but almost immediately after the 1998 accident, the Applicant started to suffer from epileptic seizures. The temporal correlation between the seizures and the 1998 accident was so strong that I must conclude that the 1998 accident was a substantial contributing cause of the Applicant's present condition.

[27] Turning to Dr. Ho's opinion, I have already found that there was no evidence of any pre-1998 seizures and Dr. Ho's first opinion, which was based on at least one seizure prior to the 1998 accident, could no longer be relied upon. In his second opinion, Dr, Ho advanced 3 possible causes for the Applicant's seizure. First, although the 1998 accident resulted in a mild head injury to the Applicant, it still carries a 3-fold risk of developing post-traumatic epilepsy in the first year after the injury. Second, that the 1982 craniotomy had created a dormant epileptogenic focus in the Applicant, which was triggered by the 1998 accident. Third, a combination of the two causes. With due respect, Dr, Ho was also trying to find the "clinical cause" for the Applicant's seizure. The exact causation of the Applicant may be very complicated. It may be a combination of his genetic make-up, environmental impacts, the 1982 craniotomy, other pre-existing conditions and the 1998 accident. The clinical cause may never be known. For the purpose of assessing compensations under the Ordinance, all we need to find is that the work related injury was a substantial cause of the Applicant's condition.

[28] Mr. Charles Wong argued that if I found that the 1982 craniotomy was a contributing cause of the seizure, I should apportion the compensation. I do not agree that there is room for apportionment under the Ordinance. First, all cases referred by Mr. Charles Wong which allowed an apportionment due to some pre-existing conditions were common law claim cases. Claims under the Ordinance are different kettle of fish all together. In common law claims fault is the paramount consideration. Employees' Compensation claims are in fact a form of no fault insurance scheme. In Wilson v. Chatterton [1946] 1 ALL ER 431, Scott L.J. after quoting section 1(1) of the English Workmen Compensation Act, 1925, stated:

The general purpose of the legislation was beyond doubt, to put upon the employer an obligation to pay his workmen or the workmen's representatives compensation for the result of personal injuries incidental to his employment, for which no action for damages lay either at common law or for breach of statutory duty. In this sense it made the employer an insurer, and the insurance aspect is important, for it helps to guide interpretation where the statutory language is open to doubt. The object of the legislation was essentially social and it was no part of the purpose of Parliament to make the economic burden rest finally on the back of the individual employer. It was realized from the start that the risk would be re-insured, as in fact happened, and through the insurance premiums, as an item in the cost of production or of services rendered the community at large of course has had to carry the ultimate burden of the social reform in the price of goods or services.... It is only if the accidental injury has no causal connection with the employment at all that it can be said not to arise out of it though it may occur in the course of it. It is for that reason that the employer cannot escape liability by showing that some factor such as disease is a predisposing or even contributing cause of the injury; he must show that it is the sole cause, as has been said frequently in decided cases." (Emphasis added)

[29] I am not convinced by Respondents' counsel's argument that Wilson v. Chatterton should not be followed, because the law on employees' compensation has progressed since 1946. The requirement for employees' compensation legislation still exists and the purpose of the legislation remains the same. The principles announced by Scott L.J. are just as applicable today as it was back in 1946. In claims under the Ordinance, there is no room for apportionment due to the employee's pre-existing condition.

[30] Mr. Charles Wong argued that since the Applicant had resumed work for two months after his initial sick leave period expired, it was clear that the Applicant was capable of returning to work as a general labourer. The only reason the Applicant stopped working was because he started to receive Comprehensive Social Security Assistance ("CSSA").

[31] Although I have accepted that the Respondents' records were accurate, it did not automatically follow that I have found the Applicant untrustworthy. On the contrary, I found the Applicant to be a trustworthy witness. His contradicting testimonies could be explained by the anticonvulsive medication Dilantin. Both Drs. Woo and Ho agreed that one of the common side effects of Dilantin was lost of memory. The Applicant's inability to remember the past and to comprehend the questions asked was clearly demonstrated during his very difficult cross-examination by Mr. Charles Wong. Taking that into account, I found that the Applicant's inability to return to work was not due to the CSSA, but to a combination of the headache, the seizures and the side effects of the Dilantin. Accordingly, I also found that the sick leave period from 18th January 1999, were also due to the accident and must be included in the periodical payments under s.10 of the Ordinance.

[32] I now come to the difficult question on determining the loss of earning capacity. Both doctors agreed that the headache alone would have caused a 5% reduction in the Applicant's earning capacity. Dr. Woo, based on the fact that the Applicant's seizures are nocturnal, came to the conclusion that the seizures were nothing more than a slight interference with the Applicant's daily living. Using the Report of the Expert Working Group on Occupational Health Services' Assessment of Non-Scheduled Injuries, Dr. Woo concluded that the loss of earning capacity, inclusive of the headache, should not exceed 15%.

[33] Dr. Ho, on the other hand, approached the assessment from the point that the Applicant was no longer employable as a general labourer on construction sites. Dr. Ho's reasoning was that, as working in construction sites involves many hazards, the Applicant's propensity for seizures would result in no employer willing to hire the Applicant. Dr. Ho stated in his report that he would assess the total reduction of earning capacity at 35%. Although during cross-examination, Dr. Ho stated that but for the prior craniotomy he would have assessed the loss of income at 60%. No detail explanation was given for this new assessment and I did not put much credit on this figure.

[34] Mr. Charles Wong argued that Dr. Ho's assessment was not appropriate, since there were plenty of construction works that do not involve heights or dangers to a worker prone to seizures. I do not agree with Mr. Charles Wong's argument. As a general labourer, the Applicant does not have the luxury of picking and choosing which type of work he wants to do. The reality is that a general labourer must attach himself to a gang leader like Suen and whatever work the gang leader was able to find, he must follow. If the general labourer refuses to do certain work or he restricts his work to only a certain type, he will soon find himself without a gang leader and out of work.

[35] Accordingly, I found that the Applicant is unfit and unable to carry out his ordinary occupation as a general labourer. However, there is no evidence that he is unemployable or virtually unemployable, as there are other occupations, like a watchman or a lift operator, that he may still pursue.

[36] The challenge is that the Applicant's injury is not an injury listed under the First Schedule of the Ordinance and there is no evidence on what income these alternative occupations may bring. Faced with these difficulties, the Court of Appeal, in Hong Kong Paper Mills Ltd. v. Chan Hin Wu [1981]HKLR 556, stated:

"That still leaves the difficulty in the present case that there was no evidence upon which the Judge could assess the earning capacity at the time of the accident in the sort of sedentary occupation which is now open to him. However, there is the proviso, which requires that the loss shall, so far as possible, be assessed in accordance with the scale of percentages specified in the First Schedule. The respondent, not being totally paralysed or permanently bedridden and not suffering from permanent total disability, cannot be entitled to demand an assessment on the basis of 100% loss of earning capacity. On the medical evidence it could be said that he has lost 50% of the use of a leg above the knee in addition to the basic back injury. Actual loss of a leg above the knee is listed as 70% loss of earning capacity. Half that is 35%, which is the final loss of earning capacity agreed by the two experts. That figure does not, however, make any allowance for incapacity resulting from the basic back injury, which none of the witnesses sought to quantify. Making a generous allowance for that, one might possibly arrive on this basis at a total loss of earning capacity of 50%."

[37] Applying the approach in Hong Kong Paper Mills, I found the First Schedule listed only 2 injuries that are close to the impairment of the Applicant: loss of the sight of one eye and the loss of the hearing to one ear. I think that nocturnal seizures are more analogous to the loss of hearing of one ear rather than the loss of the sight to one eye. The loss of the sight to one eye renders the sufferer loss of depth perception, an impairment that affects an employee on a daily basis, whatever his employment may be. The loss of hearing of one ear on the other hand, does not affect the sufferer on a daily basis, but he can no longer perform certain type of work, where acute hearing is required. Similarly, the nocturnal seizures have rendered the Applicant unsuitable for certain types of employment but it does not affect him on a daily basis.

[38] Accordingly, I have assessed the Applicant's loss of earning capacity for the convulsive seizures, at 30%, the same as the loss of hearing in one ear. Adding the 5% reduction for the headache, as agreed by the medical experts, the total reduction in earning capacity is 35%. The assessment by the Employees' Compensation (Ordinary Assessment) Board of 28th April 2000 is set-aside.

[39] The calculations under the Employees' Compensation Ordinance are as follows:

Section 9: HK$12,828.00 x 72 months x 35% = HK$323,265.60

Section 10: HK$12,828.00 x 93/26 x 4/5 = HK$36,707.81

Section 10A: Agreed at HK$1,208.00

Order:

(1) Judgment for the Applicant in the sum of HK$361,181.41 together with interest at the judgment rate from the date of the accident until payment is received.

(2) Costs to the Applicant, to be taxed on a party/party basis, if not agreed.

(3) The Applicant's own costs be taxed on the Legal Aid scale.