LEE KIN KAI AND ANOTHER v. OCEAN TRAMPING CO LTD t/a OCEAN TRAMPING WORKSHOP

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JUDGMENT

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Hunter, JA :

1. This is an appeal against the decision of HH Judge Wilson given in the District Court on 3rd April 1989. The judge then had before him a difficult and unusual application under the Employees Compensation Ordinance. It is common ground that at the age of 27 the applicant was involved in an industrial accident on 14th July 1984 in which he suffered direct physical injury. The crucial and only issue, was whether there was any sufficient causal connection between that accident and the paranoid psychosis from which the applicant is now suffering. The judge found that such a connection existed and awarded compensation accordingly. From that decision the respondent employer appeals.

2. The basic facts can be stated quite shortly. On 14th July 1984 the applicant was working on board a ship. The hatch covers were open, but it seems that that opening may have been concealed by some awning. At any event he stepped into the opening and fell some eight to ten feet into the hold. He landed no doubt heavily on his buttocks. There was no awareness on his part of any loss of consciousness.

3. He was admitted to hospital where x-rays revealed a fracture of the arch of the 5th lumbar vertebra. He was treated basically with bed rest and discharged on 8th August. From the physical symptoms he was then apparently making a slow but steady recovery. Sometime in September, no doubt thinking that this was suitable light work, his father suggested that he assist one of his brothers. The brother was an illegal hawker, and the assistance that he was to give was that of a look-out. Certain incidents then occurred which had far-reaching effects. On one occasion he seems to have been stopped and questioned by the police, and asked to produce his identity card. On other occasion, and this is the incident which seems to make the most impact upon him, on what he insisted was a Saturday morning, an old man came up to him and asked him that if he had any "tips".  He seems to have construed this not as a reference to racing but to illegal drug trafficking. In a very short space of time he became deluded. He became convinced that the police were watching him; convinced that they thought he was a drug trafficker. This was the onset of his psychosis, his delusions of prosecution. In the interests of his family, he seems to have thought he was better dead, and attempted suicide with a knife.

4. The result was that on 31st October 1984 he was admitted to Castle Peak Hospital. Very early in his stay there, he manifested signs of head banging. On 10th November he had the first of the two electro-encephalographs (EEG) and this showed what was described as "moderate diffuse abnormalities". He was given medication, basically drugs as I understand it, and on 12th December he was discharged. The respite if any was brief. There was another suicide attempt early the next year, this time with gas. On 16th March 1985 he was readmitted to Castle Peak Hospital. He was given six "ECT" treatments, and on the 27th March he had his second EEG which showed the same result as the first. Various incidents of head banging were recorded by the nurses during that year, and again in March 1986. This was followed in April 1986 by the staff observing what they took to be three overt epileptic fits. Medication by drug treatment continued. He was discharged again in December 1986. Once again this was comparatively short lived and he was readmitted in April 1988.

5. There was no issue at all between the doctors that he is now a paranoid psychotic, depressive, suicidal and probably in need of medication for the rest of his life. The condition is very real. There is no question of malingering. The problem which the trial judge then posed for himself, in my view accurately, was this : -

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At the time of the accident Mr Lee was 27 years of age, fit and healthy, with no hint of any psychiatric problem. He is now a psychotic, in a reasonably stabilised condition, but with only limited employment opportunity and likely to require some kind of supervision for the rest of his life. What, if anything, caused this dramatic deterioration?"

 

The judge then turned to consider the medical evidence of the six doctors who had given evidence at some length before him. He summarised the evidence given by the two principals on either side, in this way : -

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Dr Singer, the leading expert for the applicant ... was of the view that the fall at work caused the psychosis because a strong impact to the buttocks can cause head injury and consequent brain injury indirectly through the spine. He pointed to the slight EEG abnormalities and the epileptic fit. He said that this kind of psychosis is typical of one resulting from a brain trauma. It was a psychosis, not a neurosis, which usually responds to treatment in the short term. ... Dr Singer stressed that one must look at the overall picture. Although the individual pieces of evidence here were slender, when placed together they led to the conclusion that the fall caused the current psychosis."

 

Principally ranked against him was Professor Lien Mak who succeeded him as Head of Psychiatry at the University of Hong Kong. Of her, the judge says this :-

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She said that a direct relationship between the accident at work and the psychosis was 'most unlikely'. She said this was an impact on the spine, not the skull, and it was unlikely that the brain could be damaged indirectly in this fashion. She pointed to there being no loss of consciousness, no amnesia, and the fact that the EEG reading 'diffused non-specific abnormalities' could be found in 8-12% of even the normal population. The abnormalities could be caused by the head banging, as could the epilepsy. They could be caused by medication given in the hospital. The epilepsy was a long time after the fall but much closer to the head banging".

 

6. The judge was then somewhat critical of the doctors for attempting to reach certainty in an area where it seemed to him that certainly was impossible owing to the limitations on medical knowledge. He also criticised particular pieces of evidence by certain doctors but did so anonymously.

7. He then came to consider the evidence given by the applicant and his father. Of the applicant he said :-

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The applicant himself seemed to me to give evidence with simple sincerity and with no embellishment. This is not a malingering case and I had some doubt whether he even knew what his purpose was in giving evidence. ... He told a simple and convincing story. He said rather pathetically 'The fall made me more frightened! I did not have this before the accident".

 

8. He went on to enumerate in rather more detail the factual account given by those two witnesses. He then expressed his conclusions in four paragraphs which have been particularly criticised and which it is necessary that I should read in full : -

 

            I could not help but be struck by the sudden dramatic deterioration immediately after the accident. Of course subsequence does not mean consequence. It might be coincidence. But the deterioration in this previously normal man about this time was unmistakable.

 

            The onus of proof is upon the applicant upon the balance of probabilities. Dr Singer, perhaps a little dogmatically but nevertheless firmly, attributes the psychosis to the accident. Professor Lieh Mak thinks it 'most unlikely' and Dr Mao not 'primarily' attributable. None of the respondent's experts would rule out completely a possible connection.

 

            Considering the evidence as a whole I consider the applicant has made out his case on the balance of probabilities. I hold therefore he is entitled to compensation for his psychosis".

It is worth noting the opening sentence in the next paragraph : -

"I have reached this conclusion not without difficulty".

 

9. It is those conclusions which are particularly attacked by Mr Yu in his very careful argument to this court. The first attack is directed to his views "as a layman" expressed in the first two of those paragraphs. It is said that he was thereby disregarding the medical evidence. The aspects of the evidence which impressed the judge were not picked out or relied upon by the doctors. It is suggested that he could not go off on his own in this way. This also suggested that this conclusion ignores the fact that that 90% of psychosis arise from causes which are medically unknown.

10. Having listened, I hope with care to Mr Yu's argument, from my part I can see no force in this criticism. First causation is essentially a matter for the judge not for the doctors. It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it. 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 probabilities 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 p 10 "an irrefragable chain of causation".

11. Thirdly, a judge when considering causation is hot only entitled, he is bound, to use his common sense, to approach the question in the same way as would a juror. The point was conveniently made in McGhee v National Coal Board which was a case where owing to limitations of medical knowledge, the plaintiff was unable to prove a strict causal connection in the medical sense between the negligence and his injury. He failed in the courts below. The House of Lords agreed that common sense could be used to fill the gap. Lord Reid at p 5 said :-

"It has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man's mind works in the everyday affairs of life."

 

12. Lord Salmon, at page 11, repeated an earlier dictum of his own where he said :-

"I consider, however, that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory".

 

13. In my view therefore the judge was not only entitled but was sensible to start with the facts. When considering that evidence he was not confined to those matters which the doctors may individually have picked out in their consulting rooms. As for the suggestion that he was ignoring the statistics in relation to 90%, I see nothing in that. All he was doing was pointing to the possibility that perhaps this was one of the 10% cases. It is important, I think, to notice that this was a tentative view. He recognised the difference between subsequence and consequence, and that these observations were not conclusive in themselves. That is why he then turned to the medical evidence. I shall do the same.

14. Here Mr Yu makes two submissions. First he says that the judge made no express finding on the medical evidence. He did not expressly resolve the conflict between the doctors. He did not accept or reject any of the medical evidence, or expressly indicate a preference for one view or the other. Therefore he says the matter is at large for this court; it can reach its own conclusion on the notes. He prays in aid the decision in Wilsher v Essex Area Health Authority 1988 AC 1074.

15. That was a very different case because there the judge had misdirected himself on the onus of proof, as well as expressing no conclusion. To my mind of more direct relevance to us is this dictum of Lord Bridge appearing on p 1082 :-

"If the judge had directed himself that it was for the plaintiff to discharge the onus of proving causation on a balance of probabilities and had indicated his acceptance of this evidence in preference to the contrary evidence led for the authority a finding in favour of the plaintiff  would have been unassailable".

 

16. I suggest that he uses the word "unassailable" there, and it can be equally used here, because it would be impossible for this court to conclude that the benefit of seeing and hearing these witnesses give their evidence was not a decisive factor in the judge's conclusion.

17. Here, the judge has properly directed himself on onus. Has he indicated his preference? Expressly of course the answer is "no". Has he done so by necessary implication? To my mind' the answer is plainly "yes". I can see no other way in which he could hive reached the conclusion: "Considering the evidence as a whole, I consider the applicant has made out his case on the balance of probabilities" without, by necessary implication, preferring the view of Dr Singer which he summarises in the preceding paragraph to that of the respondent's doctors. I think the judge put it in these terms perhaps out of an excess of courtesy. I have already pointed out that in the earlier part of his judgment he criticised certain evidence anonymously. It was not difficult to find out to whom it was directed. But you had first to read the notes of  evidence which the reader of the judgment would not necessarily have. He was being very careful not in any way to offend. But I have no doubt that he did not share Dr Singer's dogmatism. He did not share Dr Singer's confidence. But in balance, having considered the case as a whole, he concluded upon the balance of probabilities that this accident caused this neurosis which was organically based. In those circumstances, it seems to me that that finding is unassailable and could not properly be disturbed by this court.

18. Mr Yu's second submission, upon the hypothesis that the matter was at large for this court, was to invite us to reject Dr Singer and to prefer the defendant's doctors. Strictly speaking, this no longer arises having regard to my answer to his first submission. But out of deference to his very careful argument and to the fact that he has taken us through all the medical evidence, I think it is right to express a view upon it.

19. To my mind two problems were revealed by the medical evidence in this case. The first is the very severe limitation upon medical knowledge in this field. The second is the revelation that the diagnostic aids available to the doctors here are somewhat blunt and imprecise instruments. On the basis of the evidence objectively analysed nothing was either proved or disproved. Therefore there was enormous scope for interpretation of this evidence; for what an apparent leading article in the British Medical Journal of 22nd July 1978 described as "clinical acumen and speculation". Of course like the judge I accept at once that that means expert speculation. Given evidence which does not point clearly in one direction or another, the doctor has to call upon his or her experience in reading that evidence, upon his feel for this type of case, perhaps even upon his intuition. It is there, so it seems to me, that the doctors on either side parted company.

20. The problem is illustrated by these two EEGs of November 1984 and March 1985. A number of medical studies were put in evidence. They showed that it was possible on the basis of these studies to put percentages upon particular conditions. This may help diagnosis, but when you come to look at it in terms of proof, they stop tantalisingly short of anything. For example, 5% of the population can have brain damage and show no symptoms whatever on an EEG. Conversely some 15% of the population can show the sort of abnormalities revealed here without any brain damages at all. So the first problem is: is this person one of the 15% or one of the balance of the 85%? In the absence of a pre accident EEG, which nobody had, there was no way of being sure. The matter becomes more confusing again if you feed in the statistics on EEGs of those with mental abnormalities. Here apparently the number showing this type of EEG could go up from 15% to the order of 25%. That again has to be qualified by yet another assumption that that mental abnormality is itself not organically caused, i.e. they are showing this abnormality without any discoverable or apparent trauma or injury.

21. One of the few things which seems to be common ground was that, if you had two similar EEGs, they meant that the person's condition was static or permanent. But beyond that there was a great deal of room for dispute between doctors as to the precise significance of these EEGs, and into which of these percentages, looking at the matter as a whole, this particular applicant should be put. I think, as the judge's summary of Dr Singer's evidence which I have read shows, that the understood him as saying that the overall evidence was slight, but looking at the pictures as a whole, this was atypical case of brain trauma psychosis.

22. Professor Lieh Mak was very strongly of the contrary opinion. There are two particular problems arising out of her evidence. In her report, which became the basis of her oral evidence, she pointed out : -

"In this case the impact was on the spine whereas almost all the reports on post-traumatic psychosis involve either direct impact on the skull or whiplash injuries".

 

23. She thus disputed that there was any experience supporting Dr Singer's view that brain damage could be caused by a direct blow to the base of the spine. She elaborated upon this in her evidence in chief, praying in aid a well-known formula drawn from the law of physics. The use of that formula attracted particular criticism from the judge. Her problem was that in cross-examination, she was faced with a quotation from a well known English medical textbook. It was the 9th edition of "Brains - Diseases of the Nervous Systems", at the start of the chapter dealing with Head Injuries. It pointed out that head injuries affecting the brain often arose from direct violence. It went on: "less frequently, they are produced by indirect violence after falls on the feet or buttocks". I emphasise both words feet and buttocks. Unfortunately, as it seems to me, when faced with that quotation, she did not concede that perhaps the author's experience had been wider than her own, and this could be a potential cause. Rather she chose to challenge the accuracy of the textbook. I very much doubt it if that improved her standing as an expert.

24. Secondly, she plainly applied a test of medical causation what she called "clinical causation", of proof beyond any shadow of doubt. That was the basis of her opinion. It was upon that basis she used phrases like "most unlikely". This was not the test which the judge had to apply.

25. Speaking for myself, I am therefore not surprised that looking at this evidence as a whole, the judge came to the conclusion, which he did. I am quite unprepared on a reading of the notes to dissent from it and to hold that he should have rejected the views of Dr Singer. In these circumstances, in my judgment, this appeal fails and should be dismissed.

Power, JA :

26. I concur with all that has fallen from my brother Hunter and have nothing to add.

Sears, J :

27. The conclusion to which the trial judge came, necessarily involved his preference for the expert evidence called on behalf of the applicant to that on behalf of the respondent. Mr Yu has taken us in detail through that body of evidence. Dr Singer for the applicant was of the opinion that the accident was the cause of the psychosis. Professor Lieh Mak said it was not, and could not possibly be by virtue of the impact being on the buttocks. Each doctor held their point of view strongly, and were not in cross-examination susceptible to any change of opinion however slight.

28. Having read the examination in chief, and cross-examination of those two eminent persons, I am of the view that the judge was right to prefer the evidence of Dr Singer. For the reasons so fully set out in the judgment of my Lord, Hunter JA, I agree that this appeal should be dismissed.