WONG YUN WA, administratrix of the estate of CHAU CHUK KAN v. SURPLUS LINK LTD trading as CHOI FOOK DELIGHT BANQUET AND CHOI FOOK LUXURY BANQUET

DCEC 2406/2019

[2024] HKDC 1145

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2406 OF 2019

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JUDGMENT

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A.  INTRODUCTION

1.  This is the trial of an employees’ compensation claim. When the Application was filed on 10 October 2019, the applicant, Chau Chuk Kan was suing as a living person. He was employed by the Respondent as a dim sum chef in the kitchen at a Chinese restaurant, namely Choi Fook Delight/Luxury Banquet at Shops 201, 206 & 207, Level 2, Plover Cove Garden, No. 3 Plover Cove Road, Tai Po, New Territories, Hong Kong (the “Chinese Restaurant”). He suffered from an intracerebral haemorrhage during work on 6 March 2018. Nearly one year and eight months later, on 1 November 2019, he passed away (the “Deceased”). The cause of death was lung cancer. Following the Deceased’s passing, the Application was amended on 1 December 2020, and Wong Yun Wa, the wife and the administratrix of the estate of the Deceased, replaced the Deceased as the applicant (the “Applicant”).

2.  On 25 February 2022, the Application was further amended to include additional details regarding the nature of the work the Deceased was engaged in, the nature of the accident and the cause of the injury.

3.  In the Re-amended Application, the Applicant claimed compensation under sections 7 or 9, 8, 10 and 10A of the Employees’ Compensation Ordinance, Cap. 282 (the “ECO”). During the trial, Mr Szeto, counsel for the Applicant, confirmed the withdrawal of the claim under s. 7 of the ECO, concerning compensation for permanent incapacity. Both Mr Szeto and Ms Lee, counsel for the Respondent, confirmed that the claims under Sections 9, 8, 10(2) and 10A have been agreed at $936,000, $72,000, $104,520 and $12,382 respectively.

4.  Therefore, the trial focused exclusively on determining the liability of the Respondent.

5.  At the trial, the Applicant’s factual witnesses were the Applicant herself and Mr So Yin Lung (“YL So”), a co-worker of the Deceased. The Respondent’s factual witness was Mr Chu Chun Fai (“CF Chu”).

6.  The Applicant’s expert witness was Dr Chan Sze Tong (“Dr Chan”), a specialist in neurosurgery, while the Respondent’s expert witness was Dr Yu Yuk Ling (“Dr Yu”; collectively the “Experts”), a specialist in neurology. The Experts have prepared four joint neurological reports, namely, the Joint Neurological Report dated 3 May 2021 (the “JNR”), the Supplemental Joint Neurological Report dated 20 August 2021 (the “SJNR”), the Second Supplemental Joint Neurological Report dated 2 June 2022 (the “SSJNR”) and the Amended Second Supplemental Joint Neurological Report dated 16 September 2022 (the “ASSJNR”). The medical literature referred to by the Experts was attached to the joint neurological reports.

7.  The Applicant’s case is that the Deceased suffered a personal injury due to an accident or a series of accidents which arose out of and in the course of his employment with the Respondent.

8.  The Respondent does not admit to the nature of the accident, the cause of the alleged injury sustained by the Deceased, and additionally asserts that the alleged injury was not caused by an accident arising out of employment but was due to other causes. Specifically, the Respondent points to the Deceased’s pre-existing medical conditions, including hypertension.

B.  THE ISSUES

9.  In §2 of her opening submissions, Ms Lee submitted that to succeed, the Applicant has to prove that:

(1)  An event or incident has occurred;

(2)  The Deceased has suffered personal injury; and

(3)  The event or incident caused the injury.

10.  Mr Szeto agreed, but submitted that the words “series of events or incidents” should be added to the words “an event or incident”. In other words, Mr Szeto accepted that, to succeed, the Applicant has to prove that:

(1)  There was an event or incident or series of events or incidents which caused the injury; and

(2)  The event or incident or series of events or incidents arose out of and in the course of employment of the Deceased with the Respondent.

11.  I have no difficulty in formulating the issues in this case as submitted by Ms Lee and supplemented by Mr Szeto. However, I note that it was Ms Lee’s submission that the Applicant still needs to identify the specific event or incident, or a series of events or incidents, which caused the injury. In particular, as will be elaborated below, the Experts agreed that the personal injury sustained by the Deceased was spontaneous intracerebral haemorrhage (“SICH”) and that the underlying cause of the Deceased’s SICH was most likely hypertension or high blood pressure. Given that the Applicant contends that the Deceased’s SICH was caused or substantially contributed to by the high kitchen temperature and the physical exertion involved in the Deceased’s work, I agree with Ms Lee that the central issue lies in determining whether the high kitchen temperature and/or the physical exertion involved in the Deceased’s work caused or substantially contributed to the Deceased’s SICH[1]. I do not think that Mr Szeto argued otherwise.

12.  In other words, the central issue pertains to causation, specifically, determining whether the Deceased’s SICH was caused or substantially contributed to by an accident or a series of accidents arising out of the Deceased’s employment[2]. Determining the cause of the Deceased’s SICH would have resolved the question of whether it arose out of the Deceased’s employment. If the Deceased’s SICH was not caused or substantially contributed to by the Deceased’s work, it cannot be considered as having arisen from the Deceased’s employment.

C.  THE APPLICABLE LEGAL PRINCIPLES

13.  S.5(1) of the ECO renders an employer liable to pay employees’ compensation “if in any employment, personal injury by accident arising out of and in the course of employment is caused to an employee.”

14.  In LKK Trans Ltd v Wong Hoi Chung (2006) 9 HKCFAR 103, Ribeiro PJ held (at §30) that s 5(1):

“requires a causal connection first, between the employment and the accident (so that the accident arises ‘out of’ the employment) and between the accident and the injury suffered by the employee: the accident must cause the injury.”

15.  In Sit Wing Yi Sibly v Berton Industrial Ltd (2013) 16 HKCFAR 104, Bokhary NPJ pointed out (at §§17 & 21) that:

“17. … The expression ‘injury by accident’ plainly encompasses cause and effect, with accident as the cause and injury as the effect.

21. It is undoubtedly the law that the accident must be distinct from the injury, with the accident being at least a contributory cause and the injury being the effect.”

16.  Thus, the issue of causation, pertaining to both the relationship between the employment and the accident, as well as between the accident and the injury sustained by the employee, is central to s.5(1) of the ECO.

17.  Causation is a question of fact: Three Rivers DC v Bank of England [2003] 2 AC 1, at 194B-C per Lord Steyn. It is for the Applicant to discharge the onus of proving causation on a balance of probabilities: Wilsher v Essex Area Health Authority [1988] 1 AC 1074 at 1082B-C per Lord Bridge.

18.  The question of causation in the light of the medical evidence is stated by the Court of Appeal in Lee Kin Kai v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232, and succinctly summarised by Cheung JA in Li Sau Keung v Maxcredit Engineering Ltd & Anor [2004] 1 HKC 434 at §54:

“1. a) Causation is essentially a matter for the judge and not for the doctors.

b) The judge will be assisted by the medical evidence but is not bound by it.

2. a) The law and medicine apply different standards.

b) In law there is a 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 does not need to be the sole cause.

c) The doctors on the other hand practise the science of aetiology. They look for ‘clinical cause’ or ‘irrefragable chain of causation’ which is to be proved beyond reasonable doubt or beyond any doubt.

3. The judge when considering causation is not only entitled, but is bound to use his common sense.”

19.  The word “accident” is not defined in the ECO, necessitating reference to common law principles to ascertain its meaning.

20.  The classic definition of “accident” can be found in the House of Lord’s judgment in Fenton v J Thorley & Co, Limited [1903] AC 443. At p.448, Lord Macnaghten stated:

“I come, therefore, to the conclusion that the expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed.”

21.  The meaning of “accident” and “personal injury by accident” has recently been considered by the Court of Appeal in Yu Kwok Wa v China Telecom Global Ltd [2023] 1 HKLRD 1043, which followed the House of Lords’ decision in Chief Adjudication Officer v Faulds [2000] 1 WLR 1035.

22.  The issue in Faulds was whether the claimant has established that he suffered injury (post-traumatic stress disorder) caused by accident arising out of and in the course of his employment within the meaning of s.94(1) of the Social Security Contributions and Benefits Act 1992 (the “Benefits Act”), which provides that “Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused … by accident arising out of and in the course of his employment, being employed earner’s employment.”

23.  The facts of that case were summarized in the headnote as follows:

“In 1993 the claimant, a senior fire officer who had served for 27 years in the fire brigade, was discharged on medical grounds after being diagnosed as suffering from post-traumatic stress disorder. He claimed industrial injuries benefit under section 94(1) of the Social Security Contributions and Benefit Act 1992 on the ground that his medical condition had been caused in the course of his employment as a result of attending at a series of fatal accidents, including aircraft crashes, fires and road traffic accidents, over a period of years from 1986 to 1993. The adjudication officer rejected the claim but the social security appeal tribunal held that the claimant was entitled to benefit. On the adjudication officer’s appeal, the social security commissioner declared that the claimant suffered personal injury out of and in the course his employment in consequence of the incidents in questions. The adjudication officer appealed. The Extra Division of the Inner House of the Court of Session held, refusing the appeal, that the claimant’s injury was caused by accident within the meaning of section 94(1) due to exposure to shocking sights, that the accident and the injury merged indistinguishably and that there was no need to make a finding of an ‘accident’ which was a distinct event separate from and preceding the injury.”

24.  The House of Lord allowed the adjudication officer’s appeal and reversed the decision of the Extra Division of the Inner House of the Court of Session. Lord Hope held that the Extra Division was wrong in holding that the injury and its cause might merge indistinguishably.

25.  At 1041B-1042A, Lord Hope cited with approval the following observations of Lord Diplock in Reg. v National Insurance Commissioners, Ex parte Hudson [1972] AC 944 at 1008G on the meaning of “accident” in the National Insurance (Industrial Injuries) Act 1946:

“In popular speech ‘accident,’ the first event in each chain, is used in a variety of meanings of which the common characteristics are unexpectedness and, generally, misfortune … it embraces both an event which was not intended by the person who suffers the misfortune and an event which, although intended by the person who caused it to occur, resulted in a misfortune to him which he did not intend. An event which constitutes an ‘accident’ with which the statute is concerned, has two limiting characteristics: the misfortune which it causes must be ‘personal injury’ to an insured person; and the event must be one which can be identified as arising out of and in the course of that person’s employment. It cannot be the ‘personal injury’ itself of which it is described as the cause. It must be something external which has some physiological or psychological effect upon that part of the sufferer's anatomy which sustains the actual trauma, or some bodily activity of the sufferer which would be perceptible to an observer if one were present when it occurred. It is convenient to call this external event or bodily activity the causative incident.”

26.  Lord Hope concluded, at 1042A-B, that “there must be a causative event or incident which can be described as ‘an accident’.”

27.  Thus, His Lordship held at 1043F-G that the judges in the Extra Division fell into error when they stated that it was unnecessary to find a causative event which was separate from the injury and that the injury and its cause might merge indistinguishably, because “they are inconsistent with the fundamental requirement that the claimant, on whom the onus lies, must show that an event or a series of events caused the injury”.

28.  Lord Clyde stated at 1048C-D that:

“It seems to me plain without going further that for the purposes of section 94 what has to be identified is ‘an accident’ and that the expression ‘by accident’ is not to be taken so widely as to be equivalent to ‘accidentally’”.

29.  Lord Clyde further stated at 1049F-H that:

“Where injury is caused by an event external to the claimant, to the happening of which he has played no part, such as his being hit by something falling upon him where he has done nothing to set it in motion, the event constituting the accident can be readily distinguished from the injury which it caused. Where the accident comes about through the claimant’s own activity, the distinction is more subtle, but still identifiable. In Fenton’s case the workman ruptured himself while endeavouring to turn the wheel of a machine which was out of order. Lord Lindley observed, at p 455:

‘It is not straining language but using it in its ordinary sense to describe the personal injury as caused by an accident. The personal injury was the rupture; the cause of it was the unintended and unexpected resistance of the wheel to the force applied to it.’”

30.  Faulds was applied by the UK Court of Appeal in Secretary of State for Work and Pensions v Scullion [2010] EWCA Civ 310. In that case, the claimant was an ex-serviceman employed by the Ministry of Defence as a service families accommodation accountant. Following his colleague becoming ill and another colleague being transferred to a different department, the claimant started to take on extra work. Some months later, the claimant suffered a cardiac arrest whilst he was at work. Although he recovered, he was not able to resume work and retired on ill-health grounds. The claimant applied to the Secretary of State for a declaration that he had suffered an industrial accident. The Secretary of State refused that application on the basis that it had not been established that there had been either an event which in itself was identifiable as an accident or a particular occasion on which personal injury had been suffered by the claimant which would constitute an accident. The claimant appealed to the Social Security Appeal Tribunal. The issue arose, inter alia, whether the claimant had sustained an accident within the meaning of the word under s.94(1) of the Benefits Act. The tribunal held that a period of sustained overwork could not come within the definition of “accident”. The Social Security Commissioner reversed the tribunal’s decision. The Secretary of State appealed. The claimant submitted that his cardiac arrest was capable of constituting an “accident” within the meaning of section 94(1) of the Benefits Act and that the accident had arisen out of his employment. The UK Court of appeal allowed the appeal of the Secretary of State.

31.  At §§19-20, Pill LJ stated:

“19. … Giving that word (ie accident) its ordinary meaning, it is in my view difficult to describe a cardiac arrest, a medical condition, as an ‘accident arising out of employment’.

20. The meaning of the expression ‘personal injury caused by accident’ was considered comprehensively in Faulds and the statements of principle are inconsistent with the assertion that the cardiac arrest was itself an accident within the meaning of section 94(1).”

32.  At §51, Aikens LJ stated:

“… In my view, … it is impossible to draw from those statements a principle of law that an unexpected cardiac arrest might, in itself and without proof of any external cause, constitute an ‘accident’ for the purposes of the 1992 Act. …”

33.  I will now examine the relevant case law in Hong Kong.

34.  As noted above, Faulds was applied by the Court of Appeal in Yu Kwok Wa. In that case, the applicant, who was employed as a data centre manager, suffered an intracranial haemorrhage (“ICH”) while at the lobby of the building in which that centre was located. That left him with spastic left hemiparesis and left homonymous hemianopia as permanent disabilities. He sued his employer for employee’s compensation, contending that: (1) the ICH which he suffered was caused or contributed to by heightened stress of work during the two weeks preceding its onset; and (2) was therefore “personal injury by accident arising out of and in the course of [his] employment” within the meaning of s.5(1) of the ECO. The trial judge dismissed his application. He found inter alia that the employee had not been working under conditions of heightened stress.

35.  On appeal, the employee, relying on some older UK authorities such as Stewart v Wilsons and Clyde Coal Co Ltd (1902) 5 F 120, Fenton (supra), Clover, Clayton & Co Ltd v Hughes [1910] AC 242 and Fife Coal Co Ltd v William Young [1940] AC 479, contended that the ICH suffered by him was an accident. That argument was rejected by the Court of Appeal. Cheung JA (with whom Chu VP and G Lam JA agreed) held (at §§11-15) that those older UK authorities treated in effect the term “accident” as equivalent to “accidentally” and that given the statements by Lord Hope and Lord Clyde in Faulds they should not be followed (at §21).

36.  Furthermore, G Lam JA observed (at §64) that “for the injury to come within the ECO, there must be some evidence, at least sufficient to support an inference, that the stroke had something to do with the applicant’s work, but there is none here”.

37.  For completeness, I should also mention that in Yu Kwok Wa, Cheung JA also observed (at §28) that it is best to avoid using the term “external and internal accident”. Instead, the Court should focus on whether an accident has occurred.

38.  In the Sit Wing Yi Sibly case referred to above, in the Court of Appeal ([2011] 4 HKLRD 91), Tang V-P (as he then was) held (at §37) that: -

“On the authorities, s 5(1) required that the death must at least be ‘brought about by an undesigned untoward event happening in the employment.’”

As Yuen JA also observed (at §41):

“… The unexpected nature of the ‘injury’ itself does not constitute the act or event or occurrence of a mishap which is the ‘accident’. An applicant for compensation must show that there has been an accident that produced the injury … ‘an unintended and unexpected occurrence which produces hurt or loss’.” (Emphasis original)

39.  The principles which can be deduced from the aforementioned authorities can be summarised as follows: To succeed in a claim under s.5(1) of the ECO, the employee must prove: (1) an accident or a series of accidents arising out of and in the course of employment; and (2) the accident or series of accidents caused the employee’s injury. In this context: (1) the injury per se cannot constitute the accident; (2) “accident” denotes an undesigned untoward event in the employment; and (3) the accident must be “a substantially contributing cause” (Lee Kin Kai) of the injury.

D.  DISCUSSSION

D.1  The Applicant’s pleaded case

40.  I begin by analysing the Applicant’s claim regarding the accident as pleaded in §3(3) of the Re-Amended Application, which can be summarized as follows.

41.  The Deceased was assigned to work at the Chinese Restaurant from 3:00 am on 5 March 2018 to 2:30 pm on 6 March 2018.

42.  The Deceased was required to place trays of steamed rice and/or other food items into a steam cabinet. The trays that were provided by the Respondent were made of aluminium with length of around 17 inches, width of around 12 inches and height of around 1 cm. To steam rice and/or other food items, the Deceased would have to place 12 porcelain pots of rice and/or other food items on each of the trays and the total weight of the tray (together with the filled porcelain pots) would be around 10 kg each.

43.  The Deceased was required to place the trays into and retrieve them from the steam cabinet. When the steamed food inside the steam cabinet was ready, the Deceased would have to open the door of the steam cabinet and, after waiting for the dispersal of the steam, the Deceased would have to retrieve the tray and turn around his body to put the tray down onto a nearby table.

44.  In the morning of 6 March 2018, the Deceased had steamed around 30 trays of steamed rice and also numerous trays of other food and had experienced the aforesaid work conditions/environment and/or circumstances repetitively.

45.  At or around 12:30 pm, the Deceased was assigned by the Respondent to work in the steam cabinet area of the kitchen of the Chinese Restaurant to prepare food for customers at lunch hour. At the material time, the temperature in the kitchen was high. Whilst the Deceased was retrieving a tray of green peppers from the steam cabinet (the total weight of the tray filled with green peppers was around 5 kg), he suffered from haemorrhagic stroke thereby causing his body to lean towards his right-hand side and he was held immediately by his colleagues (the “Accident”). As a result of the Accident, the Deceased was found to have suffered from intracranial haemorrhage.

D.2  The personal injury sustained by the Deceased

46.  While the Applicant pleaded that the personal injury sustained by the Deceased was “intracranial haemorrhage”, it is a consensus among the Experts that the personal injury sustained by the Deceased was SICH. This was accepted by both the Applicant and the Respondent.

47.  The Experts’ diagnosis aligns with the diagnosis of Dr Li Chun Him, Norris of the A & E Department of the Alice Ho Miu Ling Nethersole Hospital (“Nethersole Hospital”), which the Deceased attended at around 13:00 on 6 March 2018. In his Medical Report dated 10 May 2018, Dr Li stated that the personal injury sustained by the Deceased was “intracranial haemorrhage”, although the word “spontaneous” was not included in the report.

48.  According to Dr Chan, SICH “is a kind of haemorrhagic stroke, where bleeding occurred spontaneously within the parenchyma of the brain and was not secondary to trauma or other brain pathologies such as tumour or vascular malformation.”[3]

49.  According to Dr Yu, “the clinic picture and CT features of a single haematoma at the region of the left basal ganglion and corona radiate are typical of SICH. There was no evidence of traumatic cerebral haemorrhage.”[4]

50.  As I understand it, “intracerebral haemorrhage” is a generic term used to refer all types of intracerebral haemorrhage, whether traumatic or non-traumatic, while SICH, “spontaneous intracerebral haemorrhage” specifically refers to non-traumatic intracerebral haemorrhage.

D.3  The alleged triggering factors of the Deceased’s SICH – the factual evidence

51.  The first thing to note is that the Re-Amended Application defined “Accident” as encompassing the entire series of events connected to the Deceased’s work, starting from the time when the Deceased steamed trays of rice. Consequently, it is difficult to pinpoint the exact cause of the Deceased’s SICH from this definition.

52.  Be that as it may, it appears from the Re-Amended Application that the Applicant relied on two factors relating to the Deceased’s work as triggering factors of the Deceased’s SICH. These factors are: first, the high kitchen temperature; and second, the physical exertion involved in the Deceased’s work, particularly in placing the trays of rice and/or other food items into and retrieving them from the steam cabinet. The specific incident pleaded in the Re-Amended Application occurred when the Deceased was retrieving a tray of green pepper from the steam cabinet. During this task, he suffered from SICH thereby causing his body to lean towards his right hand side and he was held immediately by his colleagues. I shall consider each of these factors in turn.

Alleged high temperature in the kitchen

53.  I note that while the Re-Amended Application asserted that the overall temperature of the kitchen was high, in YL So’s Witness Statement and Supplemental Witness Statement, the focus shifts to temperature change upon opening of the steam cabinet, highlighting a temperature range of 35-36℃[5] or 36-37℃[6] in contrast to the general kitchen temperature of 30℃. The shift in focus from the general kitchen temperature to the temperature change upon opening of the steam cabinet suggests a change in the Applicant’s case. This change of case can further be seen from §13 of the Applicant’s closing submissions, where Mr Szeto referred to “temperature changes” rather than overall high kitchen temperature as a triggering factor.

54.  Putting aside the question of whether the Applicant can depart from her pleaded case, more importantly, it is noteworthy that there is a lack of factual evidence to establish that the temperature change upon the opening of the steam cabinet or the general kitchen temperature caused or substantially contributed to the onset of the Deceased’s SICH. Mr Szeto accepted that the kitchen was air-conditioned and was installed with extraction fans[7]. Therefore, Mr Szeto was constrained to rely on Dr Chan’s opinion and the medical literature that Dr Chan relied on[8], which I will address below.

55.  In this context, it is also important to note that the Experts were specifically requested to provide their opinions on the question of “Can a sudden surge of temperature trigger intracerebral haemorrhage?” rather than on the general kitchen temperature. As a result, it is reasonable to infer that the Court should concentrate on examining the effects of temperature changes rather than considering the general kitchen temperature. Mr Szeto did not seek to argue otherwise.

Physical exertion involved in the Deceased’s work

56.  The Re-Amended Application focused on the weight of the tray containing 12 porcelain pots of rice and/or food and the weight of the tray containing the green peppers the Deceased was retrieving from the steam cabinet when he suffered the SICH.

57.  Thus, the Applicant pleaded in the Re-Amended Application that the total weight of a tray containing 12 porcelain pots of rice and/or food would be around 10 kg each.

58.  In answering questions from the Court, YL So clarified that when he stated in §2 of his Supplemental Witness Statement that the weight of a tray containing 12 pots of rice was about 10 kg, it was possible that he was referring to pots of rice with food placed on top of the rice. By saying so, YL So implicitly admitted that the weight of a tray containing 12 porcelain pots of rice was less than 10 kg.

59.  I accept the evidence of CF Chu that a tray of 12 porcelain pots of rice weighed about 14 lbs (10.5 catties), far short of the 22 lbs (10 kg) the Applicant alleged in the Re-Amended Application. CF Chu’s evidence is supported by the photos attached to his Supplemental Witness Statement. As noted above, YL So implicitly admitted that the weight of a tray containing 12 porcelain pots of rice was less than 10 kg.

60.  The Applicant further pleaded in the Re-Amended Application that the tray of green peppers retrieved by the Deceased from the steam cabinet was around 5 kg. I also accept the evidence of CF Chu that a big tray containing the green peppers weighed about 5 lbs (2.27 kg) and that a small tray of green peppers weighed about 3.5 lbs (1.59 kg). Similarly, CF Chu’s evidence is supported by the photos attached to his Supplemental Witness Statement.

61.  Even if the tray of peppers weighed 5 kg as the Applicant alleged, it is still far below 25 kg (see below).

D.4  The cause of SICH – the medical evidence

62.  As noted above, determining the cause of the Deceased’s SICH would have resolved the question of whether it arose out of the Deceased’s employment. If the Deceased’s SICH was not caused or substantially contributed to by the Deceased’s work, it cannot be considered as having arisen from the Deceased’s employment.

63.  Before I address this specific issue, it is worth recalling that in Lee Kin Kai, the Court of Appeal noted that “the judge will no doubt be assisted by medical evidence” regarding the cause of the worker’s personal injury.

64.  In the present case, when granting leave to the parties to adduce the SSJNR, HH Judge Harold Leong specifically stated that if there is any dispute as to facts, the Experts shall give their opinion with regard to each scenario separately assuming to be found by the Court to be true, and that the Experts shall also be properly instructed as to the legal test of causation and to provide their opinion as to whether there is evidence to support this legal test and if so, provide all relevant supporting evidence including medical literatures and research publications.

65.  In these circumstances, the Experts prepared the SSJNR. This report was subsequently amended on 16 September 2022, becoming the ASSJNR.

66.  In this context, I find the observation of HH Judge Harold Leong in Chiu Kwai Yuk for herself and on behalf of members of the family of Lee Chi Wai, deceased v Ascent Exhibition Design (Hong Kong) Limited & Anor [2022] HKDC 59 helpful as I consider the cause of the Deceased’s SICH.

67.  In that case, the deceased was employed for one day as a casual worker to carry out booth decoration at the Hong Kong Convention and Exhibition Centre. Unable to complete the work within the normal working hours of 9 am to 6 pm, the deceased worker and other workers worked overtime on that day. At around 9:20 pm, upon returning to work from a cigarette break, the deceased worker drank some water and suddenly collapsed. The deceased worker was certified dead at 10:51 pm, the cause of which was found to be cardiac arrest from acute myocardial infarction, more commonly known as a heart attack.

68.  At §35, HH Judge Harold Leong stated:

“I would not put it so bald that the absence of a medical test would mean that the applicant could never prove causation in such a case, but bearing in mind that the legal test for causation is ‘substantially contributed to on balance of probability’, the identification of such a trigger requires support of reasonably convincing medical evidence and not by mere speculation or any form of ‘extension’ or ‘manipulation’ of existing medical knowledge.” (Emphasis provided)

69.  In my view, the aforesaid observations of HH Judge Harold Leong are consistent with Court of Appeal authorities:

(1)  In referring to “substantially contributed to on balance of probability”, the learned judge was applying Lee Kin Kai, which was cited by His Honour in §8 of the judgment.

(2)  The learned judge’s statement that “the identification of such a trigger requires support of reasonably convincing medical evidence” is consistent with Lee Kin Kai that in considering causation, “the judge will no doubt be assisted by medical evidence” regarding the cause of the worker’s personal injury.

(3)  I agree with Ms Lee’s submission that in §35, HH Judge Harold Leong was dealing with legal cause and not clinical cause.

70.  Therefore, I reject Mr Szeto’s submission[9] that the approach of HH Judge Harold Leong in Chiu Kwai Yuk “is to adjudicate as a pure scientist and is an approach that is directly contrary to the whole line of authorities on causation”.

71.  Furthermore, the Applicant, having obtained leave and agreed to adduce the SSJNR, cannot reasonably argue, as Mr Szeto sought to suggest, that “the court should not be interested with why … the subject stroke happened or what caused … the subject stroke”[10].

72.  In any event, during oral closing submissions, Mr Szeto agreed with the statement that “the identification of such a trigger requires support of reasonably convincing medical evidence.”

73.  Therefore, I will consider the cause of the Deceased’s SICH with the assistance of medical evidence, focusing in particular on whether there is reasonably convincing medical evidence to identify a trigger or triggers.

74.  Regarding the cause of the Deceased’s SICH, as Mr Szeto fairly accepted[11], the Experts agreed that the likely cause was hypertension, which was pre-existing.

75.  Mr Szeto sought to argue that the Deceased’s retrieving the tray of green pepper from the steam cabinet was the “last straw that broke the camel’s back,” and that this incident arose out of the Deceased’s employment with the Respondent[12]. He relied on what he called two “series of events or incidents in the employment as the relevant Accident”, namely:

(1)  Temperatures changes resulting from the opening and closing of the steam cabinet doors; and

(2)  The physical exertion required for placing the trays of rice and/or other food items into and retrieving them from the steam cabinet[13].

76.  It is important to note that both factors were thoroughly considered by the Experts in their four joint neurological reports, in the context of whether they caused or substantially contributed to the onset of the Deceased’s SICH. Having considered the opinions and evidence contained in the four joint neurological reports, and their opinions and evidence during cross-examination, I have come to the conclusion that Dr Chan’s opinion and evidence (except his admissions) is either inconsistent with the medical literature or lacks support from it, while Dr Yu’s opinion and evidence is generally consistent with the medical literature. Therefore, when there is conflict between their opinions and evidence, I prefer the opinions of Dr Yu over those of Dr Chan.

77.  I will now analyse the opinions and evidence of Dr Chan and Dr Yu, specifically in relation to the aforementioned two factors.

Temperature change

78.  I find that Dr Chan’s opinions and evidence do not support Mr Szeto’s submission that the temperatures changes resulting from the opening and closing of the steam cabinet doors caused or substantially contributed to the onset of the Deceased’s SICH for the following reasons.

79.  First, in §§4.4.2 and 4.4.5 of the JNR, Dr Chan accepted, respectively, that:

“4.4.2 … there is no conclusive evidence as to whether a sudden and significant surge in temperature in one’s surrounding would cause a rise in blood pressure and trigger a haemorrhage…

4.4.5 … there is no conclusive evidence as to whether there exists a definite causal relationship between a sudden surge in temperature and the onset of SICH.”

It is important to note that Dr Chan arrived at his opinion because, as he himself acknowledged, “as of today not enough of these studies have been conducted.”[14]

80.  Second, Dr Chan’s opinion that “a thorough search of the medical literature showed data suggesting that a hot environmental temperate may play a part in triggering an intracerebral haemorrhage” and that “it is probable that the actual bleeding itself might be triggered by his employment”[15] (Emphasis added) is either inconsistent with the medical literature he relied on, or is not supported by such medical literature. Of the three medical literature that Dr Chan relied on:

(1)  The first is an article titled “Absolute temperature, temperature changes and stroke risk: A case-crossover study” by C Kyobutungi, et al:

(a)  As correctly pointed out by Dr Yu[16], the study subjects were patients with ischaemic, not haemorrhagic, strokes, and the results only suggested that risk of ischaemic stroke may increase with large day-to-day variations upwards or downwards of temperature. During cross-examination, Dr Chan accepted that this article was concerned with ischemic stroke.

(b)  I accept Dr Yu’s opinion, which appears to me to be reasonable, that “the mechanisms of hypertensive cerebral haemorrhage and cerebral ischaemic stroke are different”[17], and reject Dr Chan’s opinion that “as both kinds of stroke occur in diseased arteries, there is reason to suspect that a similar reactive process would occur under conditions of increase temperature.”[18] (Emphasis added)

(c)  In any case, based on this own evidence, Dr Chan’s opinion is only a “suspicion”, which, in my view, holds little or no probative value.

(d)  In any event, Dr Chan’s opinion is inconsistent with the conclusion in the article that even in respect of ischemic stroke, the authors concluded that “we found no relevant relation between temperature and stroke risk” and that “we found little relation between temperature and stroke risk.”

(2)  The second is an article titled “Triggering factors in non-traumatic intracerebral haemorrhage” by H Sallinen, et al:

(a)  It is important to note that the authors stated at the outset that “data on triggers of ICH are virtually lacking.”

(b)  Furthermore, when asked in cross-examination on the conclusion in the article that “physical triggers as a group were associated with the onset of ICH”, Dr Chan accepted that “associated” is “not a proof of causal relationship, it is association” and that “causal effect is not proved by this research”. Hence, I accept Ms Lee’s submission that Dr Chan acknowledged that “association” is not “causation”[19]. It is not in dispute that the ECO does not use the term “association” but uses the term “personal injury by accident”, i.e. the personal injury must be caused or substantially contributed to by an accident arising out of and in the course of employment.

(c)  In any event, the “physical triggers as a group” which the authors stated were “associated” with the onset of ICH were “actions causing Valsalva (lifting an object weighing more than 20 kg, having to strain when defecating/urinating, vomiting, coughing, sneezing, squatting for a long period of time), abrupt change in position, heavy physical exertion, a heavy meal, a sudden change in temperature, exposure to traffic jam and sexual activity”. However, the authors concluded that “we could not identify any of the tested potential trigger factors alone to trigger the onset of ICH in our cohort.” (Emphasis added)

(d)  The above was accepted by Dr Chan, who stated that “the study failed to identify any of the tested potential factors alone that would trigger the onset of SICH” and that “the authors concluded that it was likely that their sample size was too small to show small increases in relative risks”.[20] (Emphasis added)

(e)  Hence, I accept Dr Yu’s opinion that “the authors concluded that physical triggers as a group, not as individual trigger, were associated with the onset of SICH.” (Emphasis added) and that “this study therefore does not support that a single factor of temperature change triggers hypertensive cerebral haemorrhage.”[21]

(3)  The third is an article titled “Ambient Temperature and Stroke Risk” by Pablo M Lavados, et al:

(a)  However, Dr Chan has not provided an explanation of the term “ambient temperature,” which is the main subject of the article. I accept Dr Yu’s opinion that “in weather, the term ambient temperature refers to the current air temperature – the overall temperature of the outdoor air that surrounds us”, that “ambient air temperature is the same thing as ordinary air temperature” and that “the ambient temperature data referred to in these studies were the outdoor or indoor temperatures, collected on a daily, weekly and monthly basis” and that “the data in this review should apply to change of ambient temperature in unusual hot and cold weathers, such as that in the heat wave in late July 2022.”[22]

(b)  I also accept Dr Yu’s opinion that “the high temperature in these 4 studies was not about the effect of a gush of hot steam … when the Tray was taken out of or put into the Stream Cabinet in the kitchen” and that “the data in these 4 studies do not apply to the present case.”[23]

(c)  Therefore, I reject Dr Chan’s opinion that “if an increase in the ambient temperature is already associated with observable increase in the risk of developing SICH, one would logically believe the much higher and fluctuating temperature the Deceased endured while working at the Steam Cabinet would also increase the risk of SICH”[24] (Emphasis provided), which is not supported by the medical literature that Dr Chan relied on. Furthermore, I also accept Ms Lee’s submission that the Court should neither be interested in the belief nor the feeling of an expert: Chiu Kwai Yuk at §45 per HH Judge Harold Leong[25].

(4)  Lastly, although he did not rely on the article titled “Trigger Factors for Spontaneous Intracerebral Haemorrhage: a Case-Crossover Study” by Etten, et al, Dr Chan was cross-examined on it:

(a)  The article identified “extreme temperature change” as a potential triggering factor associated with the onset of ICH, and examples of “extreme temperature change” were visiting a sauna or taking an ice bath.

(b)  During cross-examination, Dr Chan accepted that a change in temperature of 5℃ to 6℃ would not constitute an “extreme temperature change” but would only constitute fluctuations in temperature, and that a change in temperature of 5℃ to 6℃ would not have a causal connection with ICH. He also accepted that the medical literature did not show any causal connection between extreme temperature change and ICH.

81.  In conclusion, I accept Dr Yu’s opinion that “there is no medical evidence that hot temperature in the kitchen or in other workplaces such as construction sites increase the risk of SICH” and that the act of retrieving the tray of peppers from the steam cabinet, which was probably the Deceased’s usual work procedure, “did not constitute a sudden and intense stimulus which caused a sudden surge in blood pressure and met the criterion of a physical trigger for SICH.”[26]

Physical exertion

82.  I find that Dr Chan’s opinions and evidence do not support Mr Szeto’s submission that the physical exertion required when placing the trays of rice and/or other food items into and retrieving them from the steam cabinet caused or substantially contributed to the onset of the Deceased’s SICH for the following reasons.

83.  Dr Chan’s opinion that “we now have scientific evidence showing that both heavy lifting and vigorous exercise are risk factors that could individually trigger an episode of SICH”[27] is much too vague and general to provide real assistance, and furthermore, it is inconsistent with the medical literature he relied on or is not supported by such medical evidence. Of the two medical literature that Dr Chan relied on:

(1)  The first is the article by H Sallinen, et al, referred to above:

(a)  As Dr Chan acknowledged, “this study was limited by the small size of its sample and could not provide breakdown information to show the effect of each factor alone” and that “further studies to delineate each risk factor’s relation to SICH would provide more definite information.”[28] Therefore, this article does not support Dr Chan’s opinion in §16.3 of the ASSJNR.

(b)  I accept Dr Yu’s opinion that “Dr Chan has expressed reservation about any support he could get from this study for his argument that the Deceased’s work before the accident was a trigger of the SICH … I should also point out that the authors concluded that individual physical trigger was not associated with the onset of SICH.”[29]

(2)  The second is the article titled “Trigger Factors for Spontaneous Intracerebral Haemorrhage: a Case-Crossover Study” by Etten, et al, referred to above:

(a)  It is important to note that the authors stated at the outset that “whether certain blood pressure increasing factors like vigorous exercise or Valsalva maneuvers can actually trigger the acute vessel rupture resulting in ICH remains to be determined”. Therefore, insofar as the Applicant relied on vigorous exercise or Valsalva maneuvers as triggering factors, this article does not assist her.

(b)  Specifically in relation to “vigorous exercise”, it is defined in the article as “metabolic equivalent of task ≥6, which corresponds to vigorous intensity activities like jogging or rope jumping”. I accept Ms Lee’s submission that the act of placing the trays of rice and/or other food items into and retrieving them from the steam cabinet did not fall within the definition of vigorous exercise[30]. Mr Szeto did not seek to argue otherwise[31].

(c)  Specifically in relation to “Valsalva maneuvers”, Dr Chan explained that it was the “forced breathing out of air from the lungs against a closed airway”, which increased the arterial pressure of the brain. According to the authors, “Valsalva maneuvers” is a generic term which included lifting weight of >25 kg. Hence, they repeatedly referred to “Valsalva maneuvers (all types, coughing, sneezing, nose blowing, straining for defecation, and lifting >25 kg)”, “Valsalva maneuvers (coughing, sneezing, straining, and lifting ≥25 kg”, and “2 Valsalva maneuvers (straining for defecation and heavy lifting)”. Since there is no evidence that the Deceased had to hold his breath in placing the trays of rice and/or other food items into and retrieving them from the steam cabinet, the lifting of weight of >25 kg as a type of Valsalva maneuver does not assistant the Applicant.

(d)  Furthermore, the finding of the authors was only that the “2 Valsalva maneuvers (straining for defecation and lifting >25 kg) … were associated with developing ICH” (Emphasis added), which is different from causing or substantially contributing. I repeat my observations in §80(2)(b) above.

(e)  It is the Applicant’s pleaded case that “to steam rice and/or other items of food, the Deceased would had to put 12 porcelain pots containing rice and/or food on each of the Trays and the total weight of the Tray (together with the filled porcelain pots) would be around 10 kg each” and that when the Deceased suffered from intracranial haemorrhage he was retrieving a tray of green peppers from the steam cabinet (the total weight of the tray filled with green peppers was around 5 kg). On the Applicant’s pleaded case, both activities were not heavy lifting within the meaning of the article because the weight was far less than 25 kg.

(f)  Dr Chan accepted that if the Respondent’s scenario was accepted[32] then “as such weight was significantly below that of the study, there was no evidence to suggest the lifting triggered the SICH.”[33] Furthermore, Dr Chan accepted that even if the Applicant’s scenario were to be accepted, the weight of the trays was still below 25 kg[34]. However, he then suggested a scenario that “if the deceased had lifted more than 2 trays of rice at one time and had added other food stuff on top of two trays of rice, then the total weight lifted would have reached the 25 kg limit”[35] (Emphasis added). However, there was no evidence supporting Dr Chan’s claim, and therefore the scenario suggested by Dr Chan did not occur.

(g)  I accept Dr Yu’s opinion that whether under the Applicant’s version or the Respondent’s version, it is unlikely that the SICH was triggered by the work demand for the reasons he gave[36].

(h)  I also accept Ms Lee’s submission that from the evidence before the Court given by YL So and CF Chu, the trays of rice or other food items did not come within the study ambit of lifting >25 kg of weight, and so this article does not support the proposition that the heavy lifting at the time the Deceased suffered the SICH triggered or contributed to the SICH[37]. Again, Mr Szeto did not seek to argue otherwise.

84.  As I have accepted Dr Yu’s opinion and evidence and found that whether under the Applicant’s version or the Respondent’s version, it is unlikely that the SICH was triggered by the work demand for the reasons he gave, it is strictly speaking not necessary for me to deal with the question of whether the Applicant’s version or the Respondent’s version which should be accepted. However, I have dealt with this issue in Section D 3 above. Furthermore, I will deal with some of Mr Sezto’s submissions on this issue for the sake of completeness.

85.  First, Mr Szeto submitted that Dr Yu failed to appreciate that the actual weight of the trays of rice and/or other food items should be heavier than the case as depicted by the Respondent[38]. For the following reasons, I reject this submission: -

(1)  It is the Applicant’s own pleaded case is that the total weight of the tray (together with the 12 pots of rice and/or other food items) would be around 10 kg each, which is below 25 kg. As noted above, I have accepted the evidence of CF Chu that a tray of 12 pots of rice weighed about 14 lbs (10.5 catties), far short of the 22 lbs (10 kg) as the Applicant alleged in the Re-Amended Application. As also noted above, YL So implicitly admitted that a tray containing 12 pots of rice weighted less than 10 kg.

(2)  Mr Szeto has failed to address the Court regarding the weight of the tray containing 12 pots of rice, with food placed on top of the rice. I accept Ms Lee’s submission that there is no evidence on this issue[39]. I further accept Ms Lee’s submission that common sense dictates that the heaviest item in a pot of steam rice would be the pot holding the rice, and that it is improbable that any food placed on top of the rice would weight close to 8 lbs, thereby making the tray weigh 22 lbs.

86.  Second, Mr Szeto criticised Dr Yu for failing to appreciate the true extent of the Deceased’s physical exertion on the day in question because the Deceased had handled trays of rice and food 4 times more than the case as depicted by the Respondent[40]. I do not think that this is a fair criticism of Dr Yu:

(1)  It is not the Applicant’s pleaded case that the Deceased had handled trays of rice and food 4 times. In the Re-Amended Application, the Applicant merely pleaded that the Deceased would have to place the tray containing 12 pots of rice and/or other food items and the total weight of the tray (together with the filled porcelain pots) would be around 10 kg each. Plainly, the focus of the Re-Amended Application was the weight of the tray, not the frequency of placing the trays of rice and/or other food items into and retrieving them from the steam cabinet by the Deceased on the day in question.

(2)  YL So’s Witness Statement and Supplemental Witness Statement are also silent on this issue.

(3)  In any event, the frequency of placing the trays of rice and/or other food items into and retrieving them from the steam cabinet is irrelevant to both the temperature change and the weight of the trays/the physical exertion required in placing the trays into and retrieving them from the steam cabinet, which are the only two factors relied on by the Applicant.

87.  Third, Mr Szeto criticised Dr Yu for having failed to treat temperature change and physical exertion “as a group” and failed to examine the combined effect of the two factors on the Deceased[41]. I reject Mr Szeto’s submission:

(1)  The basis of this criticism is unknown, as both Dr Chan and Dr Yu were instructed to address the two factors individually, rather than in combination.

(2)  That was why both Dr Chan and Dr Yu only addressed the two factors individually, rather than in combination in the four joint neurological reports. Therefore, there is no evidence concerning the combined impact of the two factors.

(3)  Having failed to instruct Dr Chan and Dr Yu to consider the combined impact of the two factors on the Deceased, it would not be fair for Mr Szeto to criticise Dr Yu for having failed to address this combined effect.

(4)  I do not think it is fair for Mr Szeto to criticise Dr Yu for the additional reason that the same criticism could be directed towards Dr Chan.

88.  Fourth, in §39 of his closing submissions, Mr Szeto submitted that:

“As a further illustration, if the test model adopts the relevant weight of lifting to be 20 kg. It would be wrong in principle to dismiss a claim simply on the basis that the evidence only suggests lifting of 19 kg which is short of the test parameters. Instead, the court should, assist by the medical evidence that research was done on the basis of 20 kg but not dictate by it, assess the effect of lifting of 19 kg on the claimant’s body with reference to all available evidence of the work.” (Emphasis original)

89.  I reject Mr Szeto’s submission for the following reasons:

(1)  The adoption of 20 kg as the test parameter for lifting of weight implies that there is no basis for the Applicant’s contention that the effect of lifting 19 kg on the claimant’s body should also be assessed. Such assessment would be lacking in medical evidence and speculative.

(2)  Contrary to Mr Szeto’s submission, Dr Chan did not make any assessment beyond the test parameters. As noted above, what Dr Chan has done was to try to derive support from the medical literature, but his opinions and evidence were either inconsistent with the medical literature, or not supported by it.

(3)  During cross-examination, Dr Chan acknowledged that if an activity falls outside the test parameters, such as when the test parameters were set at 20 kg or ≥25 kg, then lifting a weight below the test parameter would not be covered by the study. Dr Chan further agreed that if lifting a heavier object did not have a causal connection with ICH, then it is unlikely that lifting a lighter object would have caused or contributed to the onset of ICH.

90.  Fifth, Mr Szeto submitted that the work of the Deceased “had escalated his blood pressure triggering the onset of the subject SICH with the retrieval of the tray of green pepper being the last straw on the camels’ back”[42].

91.  I do not accept this submission for the following reasons:

(1)  There is no medical evidence that the Deceased’s work had escalated his blood pressure.

(2)  On the contrary, Dr Chan stated that:

“Arterial bleeding occurred from the deep perforating branches of the main cerebral vessels in the basal ganglia. The bleeding was caused by hypertension induced degeneration of the media (middle layer of the wall) of the small arteries. Prolonged elevation of blood pressure causes damage to the wall of these small arteries. With time, these damaged arterials weaken and finally break down during a surge of high blood pressure resulting in haemorrhage.”[43]

Dr Chan did not state that the Deceased’s work escalated his blood pressure.

(3)  Dr Yu also opined that:

“The act of taking out a bowl of chilli from the steam cabinet was probably [the Deceased’s] usual work procedure, and did not constitute a sudden and intense stimulus which caused a sudden surge of blood pressure and met the criterion for a trigger of the SICH.”[44]

(4)  As HH Judge Leong observed in Chiu Kwai Yuk (at §98), it would be problematic to identify the “final straw” or the triggering event when (1) There was no medical investigation test to identify the triggering event (if any); and (2) there is an unpredictable period between the triggering event and symptoms appearing. Therefore, the mere fact that the Deceased’s blood pressure was high upon admission to Nethersole Hospital (220/117) does not support the Applicant’s contention that the Deceased’s high blood pressure was caused or substantially contributed to by his work.

(5)  It is also Dr Yu’s opinion that the Deceased’s high blood pressure upon admission to the Nethersole Hospital was due to the effect of the stroke sustained by the Deceased. I accept Dr Yu’s opinion, which was supported by an article titled “Intracerebral Haemorrhage” by Kase, et al, where the authors stated that:

“The role of hypertension as a leading factor is well-established, and its frequency has been estimated to be between 72% and 81%. The causative role of hypertension is supported by the high frequency of left ventricular hypertrophy in autopsy cases of ICH and the significantly higher admission blood pressure readings in patients with ICH than in those with other forms of stroke.”

92.  In conclusion, I accept Dr Yu’s opinion that “it is most unlikely that such work demand constituted a physical trigger for the Deceased’s SICH due to hypertension. His SICH was due to undiagnosed and untreated hypertension, which could happen at any time, whether at work or at rest.”[45]

93.  In my view, subject to what I state below, i.e., whether the Deceased’s performance of regular work constituted an accident, and assuming that it does so, Dr Yu’s opinion, which I have accepted, falls within the scenario articulated by Lord Loreburn LC in Clover (supra) (at p.247), that “the work has not, as a matter of substance, contributed to the accident, though in fact the accident happened while he was working … in substance, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same …”

94.  My rejection of Dr Chan’s opinion, my acceptance of Dr Yu’s opinion, and my finding that the medical literature in the trial does not support the claim that either or both factors caused the onset of SICH, collectively lead to the conclusion that the Applicant had failed to adduce “reasonably convincing medical evidence” to prove that the Deceased’s SICH was caused or substantially contributed to by his work. Therefore, the Applicant has failed to prove her case that the Deceased’s SICH arose out of his employment with the Respondent. As G Lam JA stated in Yu Kwok Wa (at §64), “there must be some evidence, at least sufficient to support an inference, that the stroke had something to do with the applicant’s employment”. There was none in this case.

95.  During oral closing submissions, Mr Szeto fairly accepted that if the Court, based on the Experts’ medical evidence, finds that neither of the two factors relied on by the Applicant constituted a triggering event for the Deceased’s SICH, the Applicant would be unable to contend that the Deceased’s SICH arose out of the Deceased’s employment, as the Applicant’s pleaded case was based solely on these two factors, although he also contended that the medical evidence should be considered in light of all the evidence presented.

96.  For the sake of completeness, I would also mention that the deeming provision in s 5(4) of the ECO that “an accident arising in the course of employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment”, does not assist the Applicant:

(1)  As the Court of Appeal observed in Wong Yuet Yung v Wah Fung Hong Gas Engineering Company Limited, CACV 33/2007 (unrep, 19/02/2008) (at §9 per Rogers VP), the words of the 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”, and if there was evidence that the accident did not arise out of the employment then no presumption arose at all.

(2)  The word “evidence” in the phrase “evidence to the contrary” in s 5(4) means “evidence fit to be left to the jury”: R v National Insurance (Industrial Injuries) Commissioner Rx P Richardson [1958] 1 WLR 851 at 856 per Devlin J.

(3)  As Ms Lee rightly submitted, there was evidence in the present case that the “accident” did not arise out of the Deceased’s employment. As noted above, the Experts agreed that the underlying cause of the Deceased’s SICH was most likely hypertension or high blood pressure.

(4)  The correct approach is, as Pill LJ observed in Scullion (at §25):

“… the task of the decision maker … would be to consider the evidence as a whole and reach a conclusion as to whether the injury caused by the accident arose out of the employment.”

(5)  Mr Szeto rightly chose not to press on the applicability of the deeming provision to the facts of this case.

97.  Hence, whilst it is strictly speaking not necessary for me to deal with the authorities relied on by Mr Szeto and the additional points raised by Ms Lee as to whether there was an accident, I will do so for the sake of completeness.

E.  OTHER MATTERS

E.1  The authorities relied on by Mr Szeto

98.  None of the authorities relied on by Mr Szeto assists the Applicant in her contention that the SICH sustained by the Deceased arose out of the Deceased’s employment with the Respondent:

(1)  Clover, Clayton & Co Ltd v Hughes (supra):

(a)  In that case a workman suffering from serious aneurism was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. The county court judge found upon conflicting evidence that death was caused by a strain arising out of the ordinary work of the deceased operating upon the condition of body which was such as to render the strain fatal.

(b)  Mr Szeto relied on the following observations of Lord Loreburn (at pp. 246-247):

“It may be that the work has not, as a matter of substance, contributed to the accident, though in fact the accident happened while he was working. In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment taken together, looking at it broadly? Looking at it broadly, I say, and free from over-nice conjectures, was it the disease that did it, or did the work he was doing help in any material degree?”

(c)  However, I find that the cited paragraph does not assist the Applicant because it begs the question in the present case of whether the Deceased’s SICH arose out of his employment.

(d)  In that case, there was a finding of fact by the county judge to that effect, and his finding was upheld by the House of Lords. In the present case, my finding of fact is as stated above. In fact, Lord Loreburn stated (at p.247) that “in each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it”. That was the approach I adopted in the present case, and by taking that approach, I have found that the Deceased’s SICH was not caused or substantially contributed to by his work.

(e)  In that case, the county court judge found as facts that “the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such to render the strain fatal” and that “the aneurism was in such an advanced condition that … very slight exertion, or strain, would have sufficient to bring about the rupture”, which the House of Lords stated were binding on it (p.245 per Lord Loreburn LC). However, in the present case, there was no medical evidence to such effect.

(f)  In that case, the county judge was not assisted by any medical evidence. In the present case, I was assisted by medical evidence and have accepted Dr Yu’s opinion and rejected Dr Chan’s opinion.

(2)  Wilson v Chatterton [1946] KB 360:

(a)  In that case, an epileptic was working in a field when he had an epileptic fit, fell face downwards into a furrow full of water and was drowned.

(b)  Mr Szeto relied on the following observations of Scott LJ (at 366-367):

“It is true that the words ‘arising out of and in the course of the employment’ impose two conditions precedent to the statutory obligation of the employer and that the words ‘out of’ introduce a factor which might seem to throw back the inquiry into causation one step further from the final effect than the words ‘in the course of.’ But so to read the condition is, in our opinion, to misread it. 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.”

(c)  However, I find that the cited paragraph does not assist the Applicant as it essentially reinstated the requirement of a causal connection between the work and the injury. As previously mentioned, I have analysed causation based on the principles stated by the Court of Appeal in Lee Kin Kai and Li Sau Keung, and I have also accepted Dr Yu’s opinion on this matter.

(3)  Ho Woon King v The Hong Kong & Kowloon Wharf & Godown Co Ltd [1965] HKDLR 265:

(a)  In that case, a workman collapsed in the course of employment doing light work after doing heavy work. He was found to have suffered a stroke and died 2 weeks later of cerebral haemorrhage. HH Judge Pickering found the employer liable.

(b)  Mr Szeto relied on the following observations of the learned judge (at pp.287-288):

“Normally healthy men, engaged upon work which requires no particular exertion, even though they have up to a short time previously been occupied in a task calling forth exertion though not of a greater degree than normal to them, do not suddenly suffer paralysis. There must have been a predisposing physical condition, whether of high blood pressure or otherwise, unknown to the deceased’s workmates and possibly even to himself The existence of such a condition is not, I apprehend, a matter of conjecture but an inference which the facts entitle me to draw … Applying that principle[46] and remembering that I have already drawn the inference that there existed in the deceased a predisposing physical condition it is but a short step to drawing the further inference (and again I think it is an inference and not a surmise conjecture or guess) that he died ‘from the disease and the employment taken together, looking at it broadly.’”

(c)  Again, I find that the cited paragraph does not assist the Applicant for the reasons stated above. Furthermore, while in that case the learned judge drew the inference that there existed in the deceased in that case “a predisposing physical condition”, the learned judge mentioned earlier (at 287) that “there is no direct evidence that the deceased had a history of high blood pressure or of other physical activity prior to his stroke. Neither of the two doctors who gave evidence had examined him before and no post-mortem was held”. This is different from the present case as the Experts agreed that the Deceased suffered from hypertension. In particular, as mentioned above, I have accepted Dr Yu’s opinion on this matter. In contrast, in that case, whilst the learned judge discussed the opinions of the deceased’s treating doctors as to the relationship between high blood pressure and the cerebral haemorrhage sustained by the deceased in that case (see pp.268-269), the learned judge made no finding on whether he accepted such opinions.

(4)  Lee Fuh v Ming Hing Construction Co [1991] HKDCLR 105:

(a)  In that case, in the afternoon of the day when he collapsed the deceased worker was engaged in heavy labour, i.e., digging a ditch some 2-3 deep and also placing wooden boards, of up to 6’ × 4’ × 3/4’ in dimension, across the ditch, although precisely what he was doing at the moment he collapsed and died was not clear from the evidence. Medical evidence showed that the deceased had died of a ruptured myocardial infarction. Myocardial infarction is an area of dead issue in the heart. The tissue has died because its supply of blood has been cut off as a result of occlusion of the blood vessel.

(b)  Deputy District Court Judge Burrell (as he then was) preferred the evidence of the applicant’s medical expert that “heavy labour contributes to the onset of myocardial infarction” and that “heavy labour alone will not cause an infarct. Heavy labour on top of atheroma will cause myocardial infarction. Once formed heavy labour alone can cause a rupture”.

(c)  Therefore, I find that the observations of the learned judge that the view of the applicant’s medical expert was one which commended “logic and common sense” (at p.112E-G) (relied on by Mr Szeto) does not assist the Applicant, because the learned judge had stated that he preferred the evidence of the applicant’s medical expert.

(d)  In any event, the learned judge observed (at 112E-G) that “there is a gap in the medical knowledge. The crucial question in this case is a medical moot point … I do not have to say which doctor is medically correct and would not presume to be so…” I do not think this was the approach Mr Szeto urged this Court to adopt. Instead, he urged the Court to accept Dr Chan’s opinion. Ms Lee, for her part, urged this Court to accept Dr Yu’s opinion. Mr Szeto did not offer any submission regarding the potential implications if this Court does not accept the opinion of either Dr Chan or Dr Yu, bearing in mind that the onus is on the Applicant to prove causation on a balance of probability.

E.2  Ms Lee’s additional point: Whether there was an accident

99.  It is unclear from Mr Szeto’s submissions what the “accident” that caused the Deceased’s SICH was. For instance, in §2 of his opening submissions, referring to §3 of the Re-Amended Application, Mr Szeto defined “accident” as including the “haemorrhagic stroke” sustained by the Deceased. With respect, I do not find this definition helpful, as the authorities clearly establish a distinction between the accident and resulting personal injury, i.e. the accident is the cause, and the personal injury is the effect. To be fair, Mr Szeto rightly accepted that “‘accident’ and ‘injury’ are distinct and cannot be the same; ‘accident’ is the cause whilst ‘injury is the effect.”[47]

100.  As noted above, it was in §13 of the Applicant’s closing submissions that Mr Szeto identified the two factors, i.e., temperatures changes and physical exertion as the “series of events or incidents in the employment as the relevant Accident”.

101.  However, as an accident is an “undesigned untoward event happening in the employment” (Sit Wing Yi Sibly, at §37 per Tang V-P) and/or “an unintended and unexpected occurrence which produces hurt or loss” (Sit Wing Yi Sibly, at §41 per Yuen JA), I have serious reservation as to whether the Deceased’s performance of regular work (placing the trays of rice and/or other items of food into and retrieving them from the steam cabinet) would constitute an accident within the meaning of s.5(1).

102.  In this connection, Lord Hope stated in Faulds (at 1043D) that:

“… the sustaining of an unexpected personal injury by an expected event or incident may itself amount to an accident”. (Emphasis original)

This was cited with approval by G Lam JA in Yu Kwok Wa at §54.

103.  Lord Clyde stated (at 1050D) that:

“In the performance of physical work the making of what may for others to be an ordinary exertion but which, on account of some decease or weakness or other predisposition is excessive for the individual undertaking it may constitute an accident in his case.”

104.  Since I have dismissed the Applicant’s claim by reason of the Applicant’s failure to discharge the onus of proving causation, it is not necessary for me to express a firm view on whether the Deceased’s performance of regular work would constitute an accident, suffice to point out that while Mr Szeto had made submissions on the “ordinary exertion” approach in his written submissions, the “ordinary exertion” approach is not how the Applicant pleaded her case, and the Experts were never asked and never provided any opinion on this approach. As Cheung JA observed in Yu Kwok Wa (at §26), the “ordinary exertion” approach “requires evidence both medical and factual that, given the condition of the applicant, the making of what may for others be an ordinary exertion, is excessive for the applicant”. Such evidence is lacking in the present case.

F.  CONCLUSION

105.  In conclusion, much as I sympathize with the Applicant and the Deceased, it follows from the above that the Applicant’s claim must be dismissed. I would therefore order the action be dismissed with costs of the action to be paid by the Applicant to the Respondent to be taxed if not agreed, with certificate for counsel. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

106.  Last but not least, I thank Mr Szeto and Ms Lee for the assistance they have rendered to the Court.