FUNG SO YIN v. SHEK HAY YAU t/a HAI PAI FISHERY CO AND ANOTHER

DCEC 1425/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 1425 OF 2005 IN THE MATTER OF AN APPLICATION BETWEEN FUNG SO YIN (馮素燕) 代表自己及其家庭成員 Applicant and SHEK HAY YAU trading as HAI PAI FISHERY COMPANY (海柏漁業公司) 1st respondent EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD 2nd respondent Before: His Hon Judge Leung in Court Date of Hearing: 3, 4 September 2012 Date of Judgment: 19 December 2012 J U D G M E N T Shek Cheung (“the Deceased”) died in Shanwei of the Mainland on 5 December 2003 at the age of 53. The widow (“the Widow”), on behalf of herself and other family members, applies for compensation against the 1st respondent who was his employer at the material time (“the Employer”). The case came for trial on 5 November 2007 when the judge adjourned the trial upon the Employer’s application. 2 years later, the Employer applied for his bankruptcy and his legal aid was discharged. That triggered the intervention of the 2nd respondent (“the Board”), which was joined as a respondent in April 2010. The case was eventually tried before this court. When the trial began, the parties managed to agree on the quantum, and thus leaving the issue of liability to be tried. Specifically the question is whether the Deceased met his death as a result of injury caused by an accident arising in and out of the course of his employment at the time. THE DECEASED For over 13 years, the Deceased had worked on board fishing vessel. What used to be the dispute as to the Deceased’s position on the Employer’s fishing vessel no longer exists. The Board now accepts that the Deceased was the captain of the vessel at the time of his death. The Employer never challenged that in court or adduced evidence to the contrary. On 5 December 2003, the vessel was docked in Shanwei for maintenance and repair. Sometime after 6 pm, the Deceased and the crew transferred from the vessel onto a sampan in order to go ashore for dinner. The applicant set out her case in the re-amended application as follows: “The Deceased jumped from the boat and landed on a sampan. After his landing, he suddenly fainted. He was rushed to the People’s Hospital of Shan Wei City at about 7:05 pm where he was certified dead at 7:50 pm on the same day.” As to the nature of injury to the Deceased, the applicant stated: “Sudden death with unknown reason……” THE LAW Section 5(1) of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) provides that: “Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with the Ordinance.” Section 5(4) of the ECO sets out the presumption that: “……an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment.” In his submission, Mr Lim for the Board was prepared to accept that though the Deceased was on his way to dinner, he was in the course of his employment. Hence the above statutory presumption applies. However the presumption under section 5(4) does not serve to establish liability for compensation under section 5(1) without the Widow first establishing that the Deceased suffered injury or met his death as a result of an accident. In Fenton v J Thorley & Co Ltd [1903] AC 443 at 448 (per Lord Macnaughten), the court, after reviewing the authorities, had the following conclusion on the meaning of “injury by accident”: “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.” Mr Tang for the applicant referred to Richard Lewis in Compensation for Industrial Injury: “Although an accident in the popular imagination may conjure up some dramatic event causing the emergency services to turn out in an atmosphere of crisis or even disaster, it is apparent that under the industrial scheme many other types of incident not normally thought of as accidents are included within the term. These may be of the most trivial or unsensational nature and cause injury only in a stealthy manner …… It is true that in Fenton v Thorley & Co (1903) an accident was defined as “any unexpected personal injury……any untoward event which is not expected or designed”. But an accident need only be unexpected from the worker’s point of view.” Be it trivial, un-sensational or causative of the injury only in a stealthy manner, it had to be an act or event or occurrence of a mishap that produced the injury or death. The burden of proving injury or death by such mishap or untoward event is on the applicant. THE ISSUES According to what she puts forward for her claim in the re-amended application, the Widow is expected to prove that: (i) the Deceased jumped from the vessel onto the sampan; and (ii) that was the mishap that caused the Deceased’s death. Whether the Deceased jumped from the vessel onto the sampan Mr Tang submitted that the jump by the Deceased from the vessel onto the sampan was a clearly identifiable event. This is in my view too quick a conclusion to draw. Of all those whose statements have been filed on her behalf, the Widow called 2 witnesses: her daughter (“the Daughter”) and her brother (“Feng”). Neither of them was eye-witness to what happened on the day. The Employer did not testify. The Daughter, together with other family members, arrived at Shanwei at the night of 5 December 2003. According to her statement, she learned on the following day about what happened: According to the doctor in the hospital, it was probably fatigue at work that caused the Deceased’s death. According to the Deceased’s colleague, Cheung Ah Sang (“Cheung”), the Deceased jumped from the vessel onto the sampan first. Cheung followed; and saw the Deceased collapse. Another colleague of the Deceased’s, Yung Hing (“Yung”) was present during the above conversation. The Board called no witness but referred to the affirmation of Yung in November 2007. Yung made the affirmation as he contemplated not being able to attend the trial, as he had to work (for another employer) in high seas most of the time. By his affirmation, Yung confirmed the truth of his previous statement made in April 2006. In his handwritten statement made in 2006, Yung stated that at the material time, the weather was fine and the water was steady. There was no need to lower the ladder; and the crew climbed from the vessel to the sampan, which was not far from each other. The Deceased stood on the sampan; and after about 2 minutes, he suddenly collapsed and fell unconscious. By then, the journey to the shore had finished by 1/3. Yung’s account of how the Deceased transferred from the vessel to the sampan differed materially from that given by the Daughter. Indeed Yung’s account could not be tested by cross examination. But in terms of evidential value, what the Daughter said is definitely no way better. The Daughter’s account was essentially hearsay. What the doctors at the Shanwei hospital might have told her seems to be similar to what one can read from their records. They will be discussed below. As to what she learned from Cheung, the accuracy of Cheung’s account cannot be tested. But if one just refers to the handwritten statement of Cheung dated July 2006, one would find that Cheung confirmed his agreement with the content of Yung’s statement mentioned above. This came in direct conflict with the Daughter’s hearsay account apparently from the same source. I must of course qualify my reference to Cheung’s statement. As far as it is a witness statement, it shall strictly be inadmissible as evidence in Cheung’s absence from the trial. Such reference serves the mere purpose of highlighting the difficulty in relying on the hearsay account of a material part of this case, and in this case that of the Daughter. Besides, as mentioned, this case actually came up for trial in November 2007. Had the trial proceeded then, the Daughter would not have been a witness at all. She made her statement only in September 2008 and after the report of Dr Victor Goh, cardiologist, suggesting that the jump onto the sampan by the Deceased, if it did happen, might have a bearing on the death of the Deceased. As to Feng, his evidence was and could only be confined to his experience of working on board the vessel during the period between 1995 and 1998. The value of what he said to have happened then as purported evidence of what in fact happened on the material day is minimal, if not nil. There are therefore reasons for refraining from placing weight on the above evidence adduced by the parties in respect of exactly how the Deceased transferred from the vessel onto the sampan at the material time. But since the Widow bears the burden of proof, such reservation about the reliability of the indirect and hearsay evidence operates against her. In any event, the fact was that even described as a jump from the vessel onto the sampan, what happened could in fact be direct jump from the vessel onto the sampan or a jump while the Deceased was half way down from the vessel or simply descending though seemingly quickly and effortlessly. The exact manner of that at the time was simply unknown. Whether the transfer from the vessel onto the sampan caused the Deceased’s death The medical record and death certificate issued by the hospital in Shanwei in 2003 recorded that the Deceased suddenly collapsed in the course of work. The hospital wrote to the Director of Legal Aid in 2005 repeating the same and rendering its opinion that the Deceased might die of fatigue at work. Such record must be hearsay. More importantly this is hard to reconcile with the undisputed fact that he collapsed on board the sampan going ashore for dinner. It is difficult to rely on these Mainland documents. Dr Goh gave an expert report dated 3 March 2008. The doctor identified 7 possible causes of sudden death: arrhythmias; narrowing of the coronary arterial system supplying blood to the heart muscle (or CAD); failure of spontaneous impulse formation by the heart’s conduction system; loss of pumping power of the heart; severe loss of function of the heart’s valvular system; perforation of the muscular wall of the heart; embolism. Considering the information about the Deceased’s smoking habit, which is a risk factor for coronary artery disease (“CAD”), Dr Goh believed that the Deceased had CAD. Meanwhile, considering the information about the Deceased’s drinking habit, Dr Goh opined that that might also increase the chance of sudden death, quite irrespective of whether CAD indeed existed. Dr Goh opined that heart attack could be triggered by jumping from the vessel onto the sampan. However as mentioned, the alleged jump was hardly proven fact. In the scenario according to Yung, where there was a time lag between the transfer and the Deceased’s collapse, the suspected likelihood of a jump triggering heart attack is also compromised. Further Dr Goh’s opinion of the alleged jump triggering heart attack was based on the existence of CAD in the Deceased and that the CAD was unstable at the material time. In the absence of an autopsy, it is unknown which of the above possible causes played a major role in the Deceased at the material time, including whether such unstable CAD in fact existed. No wonder even Mr Tang for the Widow submitted that much speculation existed in the opinion expressed by Dr Goh. Dr Beh Swan Lip, pathologist, gave his expert report dated 3 January 2009 after having had the chance to consult the available evidence including Dr Goh’s report. Dr Beh set out even more possible causes of sudden death that those by Dr Goh: sudden cardiac death due to coronary artery disease; sudden death on aortic valvular disease; sudden death due to cardiomyopathy; sudden death from ruptured aneurysms; pulmonary thromboembolism; sudden death in epilepsy; sudden death in asthma; respiratory obstruction; massive gastrointestinal haemorrhages; sudden brain stem haemorrhages. In the opinion of Dr Beh, many organ systems might have caused the death of the Deceased. Without a post-mortem examination and detailed medical records, the only realistic statement that can be made about the cause of death of the Deceased was that it was sudden and unlikely to have been the result of an external traumatic injury. Any attempt to offer a more definitive cause of death for the Deceased, Dr Beh opined, could only be an educated guess at best and an academic exercise and should be read with that understanding in mind. However Mr Tang submitted that in situations where the cause of death is unknown, the applicant is not required to prove or show causation between the accident and the death. He relied on Fenton (above) at 456 (per Lord Lindley): “In this case the cause of the injury is known, and it is proved that the cause was an accident. It is not, therefore, necessary to consider whether the Act applies to cases in which the cause of the injury is not known or in which the only unforeseen occurrence is the personal injury itself. But if personal injury is caused to a workman, and it arises out of and in the course of an employment to which the Act applies, it appears to me that prima facie the Act entitles him to compensation, but that this inference may be displaced by proof that the injury is attributable to his own serious and wilful misconduct, or to some other cause which shows that the injury was not accident.” As spelt out at the beginning, the court in Fenton actually found that the workman in that case over-exerted himself in the course of turning the wheel of a machine and ruptured himself. That was the mishap that caused the injury. The proposition in the rest of the above passage concerns what are now sections 5(2) and 5(3) of the ECO. The proposition was made on the premise it was an accident that caused the injury to a workman. It did not advocate dispensing with the proof of that. Mr Tang referred to Fan See Yuk v Ocean Tramping Co Ltd [1974] DCLR 1. There the seaman was found disappeared from a vessel on which he was working. He was presumed drowned. Mr Tang relied on what Power DJ (as he then was) said (at p.8): “……We must look to see not whether there is any evidence to establish or from which it can properly be inferred that the death arose out of the employment, but whether there is any evidence to establish or from which inferences can properly be drawn sufficient to displace the presumption that the death did arise out of employment……” There the court was discussing the operation of the presumption (then under section 5(6)) now under section 5(4) of ECO. However the statutory presumption does not have the effect of presuming that the personal injury was caused by an accident. Power DJ made this clear in another part of his judgment (at pp.4-5): “ What the Respondent firstly contends is that the deceased committed suicide. It appears to me that before any question of the presumption in S.5(6) coming into play arises it must be shown by the applicant that what took place was an “accident” …… …… ……to bring S.5(6) into play the applicant must establish not merely death in the course of employment, but death by accident in the course of employment. In the present case I hold that the onus of proving death by accident rests upon the applicant and that she must satisfy this onus or the presumption in S.5(6) does not arise……” In Fan See Yuk, the seaman must have fallen overboard in the course of his employment though how that came to happen was unknown. Not satisfied that it was suicide, the only other finding was that of death by accident. On that basis, the statutory presumption applied so that the death by accident was deemed to arise out of the employment, unless there is evidence to the contrary. Hence what the learned judge said. In Ng Mung Khian v Wing Kwong Painting Co Ltd, CACV 217/2004 (29 June 2005), the corpse of the workman was found after a fire at the store room was put out. The fire caused his death. Ruling out the possibility of suicide and foul play, the court drew the only possible conclusion, namely it was death by accident. Satisfied that this happened in the course of the employment, the statutory presumption under section 5(4) applied in favour of the applicant for compensation. Mr Tang also referred to Fong Fung Ying v AG [1991] 2 HKLR 133. In that case, the employee was found murdered in a public toilet. That was the cause of his death, but the exact circumstances of the murder were unknown. In the absence of sufficient evidence to rebut the section 5(4) presumption, the death by murder was found to have arisen out of the course of the employment. It is clear to me that the above cases are not authorities in support of the proposition that the applicant does not need to establish the mishap or untoward event that caused the injury or death to the employee. Quite to the contrary, the court never dispensed with the proof of death by accident but indeed found that (including by way of inference) in those cases. In the present case, the Widow alleges that it was the transfer from the vessel onto the sampan, be it a jump or otherwise, that caused the Deceased to collapse. She has the burden of proving the causal link between the act and the collapse. This is primarily a question of fact for the trial judge. Nevertheless this question has to be adjudged with reference to the evidence including medical evidence. This is particularly true in the present case. Unlike a seaman falling overboard and drowned or a workman dying in a fire or a victim of murder mentioned above, the Deceased would not have collapsed and died unless the transfer from the vessel onto the sampan caused or triggered certain condition in him. Medical evidence of such condition is material to ascertaining whether in fact that was on the balance of probabilities connected with the vessel-sampan transfer. In Sit Wing Yi Sibley v Berton Industrial Ltd [2011] 5 HKC 26, the employee was found slumped on the ground with blood in his mouth and nose inside the toilet during office hour in the Mainland. No autopsy was performed before cremation. The medical reports from the Mainland hospital suggested sudden cardiac death; but with the qualification that as no autopsy was performed, the cause of death could not be certified except for the conclusion that the deceased’s heart stopped beating due to unknown cause. The local pathological experts noted the medical history of the deceased and the lack of suggestion of physical stress on the material day. They concluded there was no evidence to suggest that the death was due to a pre-existing congenital or hereditary condition or related to his previous medical condition. Nor was there evidence to suggest that the death was the result of his employment. The authorities in this area of law, including some of the above, were extensively studied by the Court of Appeal. Yuen JA had this to say: “40. As I understand his submissions, Mr Sakhrani is essentially saying this: the Deceased’s death was not accounted for by his known medical history, and consequently it was an unexpected event, and thus an ‘accident’; and since it occurred during his working hours, it arose ‘in the course of’ employment. By virtue of s 5(4), it should also be deemed, in the absence of evidence to the contrary, also to have ‘arisen out of’ that employment. 41. It seems to me that that argument slides the concepts of ‘injury’ and ‘accident’ in the phrase ‘injury by accident’. 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 (see Fife Coal at 486 and Fenton v Thorley at 453: ‘an unintended and unexpected occurrence which produces hurt or loss’). 42. Death caused by disease alone would not qualify for compensation even if the disease was unknown (and thus unexpected). There would have to be an acceleration of the death by a particular (even if not unusual) act of exertion in the course of employment – in which case the death may be said to have been caused by an accident (Ormond v C D Holmes & Co Ltd at 800). Even if there was an ‘internal accident’, i.e. a physiological change invisible from outside the body (such as rupture of an aneurysm), it must still have been brought about by ‘an undersigned untoward event happening in the employment’ (Fife Coal p 488)” Mr Tang submitted that it is for the Employer to show that the Deceased died of condition that had nothing to do with the transfer from the vessel onto the sampan. This effectively reverses the burden to prove injury or death by accident. For reasons discussed above, I cannot agree. In the present case, there is no suggestion or evidence of external trauma that caused the Deceased to collapse. Dr Beh managed to exclude that possibility. However, in the absence of autopsy, the clinical condition that led to his death is unknown. The evidential basis for finding or inferring that the transfer from the vessel onto the sampan was a mishap or untoward event leading to the condition of the Deceased that caused him to collapse is simply lacking. In the circumstances, it is not proved that an accident produced the condition that led to the Deceased’s death. The statutory presumption under section 5(4) of ECO does not set in. Liability under section 5(1) of ECO is not established. QUANTUM The compensation As agreed when the trial began, the average monthly earnings of the Deceased prior to his death was HK$14,106.33. In that case, the compensation under section 6(1)(b) of the ECO should be HK$14,106.33 x 60 = HK$846,379.80. Funeral expenses evidenced by the receipts exceeded HK$60,000. The statutory maximum amount of HK$35,000 allowable under section 6(5) was thus agreed as well. That makes compensation in the total sum of HK$881,379.80. Interest There is dispute in respect of interest. It has been more than 8 years since the accident and more than 6 years since the commencement of legal proceedings herein. As mentioned, the trial would have been tried in November 2007, but for the adjournment pursuant to the Employer’s application. Then the Employer had just been granted legal aid and the application for adjournment was made by counsel then on his behalf. The Widow was assigned the solicitors now acting for her in January 2008. Besides discovery of documents and supply of further and better particulars by 20 February 2008, there has been no record of any action until notice of intention to proceed was filed on 7 October 2009, which was nearly 20 months later. Even according to the chronology of events supplied by Mr Tang, half a year was taken up to review the evidence and to consider if further evidence was required. That does not sound reasonable objectively. As mentioned, the Employer became bankrupt in January 2009. Nothing could have been done until the Widow had obtained leave from the court to carry on. Legal aid certificate to cover the application for an order to carry on the proceedings herein against the Employer was issued only in mid-December 2009. The Widow is not to blame for the delay resulting from the adjournment of the trial in November 2007. Mr Lim did not argue otherwise; but submitted that the case could still have been tried by mid-2009. However, nothing was done in 2009. Mr Tang explained that the Widow had no notice of the bankruptcy of the Employer until December 2009. That was probably true. But this does not explain lack of action by then. According to the chronology provided by Mr Tang, a period of 11 months by then was spent on reviewing evidence and consulting counsel. That again sounds unreasonable objectively. Following the discharge of legal aid to the Employer in January 2010, the Board intervened and was joined in April 2010. What happened after then, in my view, would not have given rise to any reason for considering depriving the Widow of her claim for interest, had she managed to establish her entitlement to compensation. In the circumstances, had the Widow established the Employer’s liability to compensate under section 5(1) of the ECO, she would have been entitled to interest at half judgment rate from the date of accident (as asked for by Mr Tang) until judgment save and except that for the periods of 6 months and 11 months in 2008 and 2009 respectively mentioned above. Apportionment The application for compensation was made for the benefit of the applicant and the other family members of the Deceased. Mr Tang fairly conceded that the relationship between the Deceased and the alleged parents could not be established. Therefore the compensation should be apportioned amongst the other members of the family. There is no infant interest. A sum of HK$35,000 goes to the Widow as reimbursement of the funeral expenses. 50% of the balance of the compensation, pursuant to the 7th Schedule of the ECO, goes to the Widow and 50% to the daughter and 2 sons (as identified in the re-amended application) in equal shares. ORDER The application for compensation is dismissed with costs to the respondents. Costs shall be taxed, if not agreed, with certificate for counsel. The applicant’s own costs shall be taxed in accordance with legal aid regulations. The costs order is nisi; and shall become absolute in the absence of application in 14 days to vary. (Simon Leung) District Judge Mr Ronald TANG instructed by Messrs K B Chau & Co for the applicant on the assignment by the Director of Legal Aid for the applicant The 1st respondent, in person Mr Patrick LIM instructed by Messrs Gallant Y T Ho & Co for the 2nd respondent Note: Interpreter’s assistance would be provided to the 1st respondent if required for receiving this judgment.