IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 253 OF 2010
(ON APPEAL FROM DCEC NO. 733 OF 2009)
||SIT WING YI SIBLY, acting for herself and
||on behalf of the other members of the family of
||CHEUNG KA WAI, RANDIE, deceased
||BRETON INDUSTRIAL LIMITED
Before: Hon Cheung CJHC, Tang VP and Yuen JA in Court
Date of Hearing: 24 May 2011
Date of Judgment: 4 July 2011
Hon Cheung CJHC:
1. This is a sad case. However, for the reasons given by Tang VP and Yuen JA, I agree that the appeal must be dismissed.
Hon Tang VP:
2. The Deceased worked as a merchandiser at the Respondent's office in Dongguan. On 13 July 2007 he had business meetings until his lunch break and sometime thereafter he went to the toilet. He was found there at about 3.30 pm slumped on the ground with blood in his mouth and nose. He was taken to a local hospital but was found to have died before arrival. Unfortunately, there was no autopsy before cremation took place.
3. In a "Deceased's Medical Report" issued by the Donggan Changan Wusha Hospital dated 13 July 2007, the cause of death was given as sudden cardiac death.
4. A Supplemental Medical Report dated 25 February 2010 explained:
"5. As the autopsy was not performed on the corpse of Cheung Ka Wai, including his heart after declaring the death of Cheung Ka Wai, therefore I am not qualified to certify the cause of the death. Therefore in the Patient Report for the Deceased, I stated that the cause of the death was sudden cardiac death in the column of the Administrative Office, Discussion and Opinion, which means Cheung Ka Wai died after his heart stop beating due to the unknown cause."
5. The Deceased was 37 when he died. He was survived by his widow and a son who was 3 years old at the time. The Applicant applied for compensation on behalf of herself, her son and other members of the Deceased's family.
6. For the purpose of the application, two experts in pathology, namely, Professor Annie Cheung and Dr S L Beh, were instructed by the Applicant and the Respondent respectively to investigate the cause of death on the basis of the medical history and records of the Deceased. Their report has been summarised by the learned judge (District Judge H C Wong) as follows:
"11. The summary of the Deceased's medical history based on available records revealed he had 'a history of polyposis of the colon which was probably hereditary in nature'. He also had pulmonary tuberculosis which resulted in permanent damage to his lungs evidenced by fibrosis and scaring. He is described to be a mild asthmatic and showed evidence of pulmonary emphysema. It is important to note that there had been two episodes of haemoptysis (coughing of blood) documented and investigated at St. Tersea's Hospital. He also had an episode of tension pneumothorax which required the insertion of a chest drain. They found no evidence of malignancy of the lungs or of the colon or evidence of heart disease or congenital heart condition. (P. 73 of the bundle).
12. The two experts' summary of the incident was: the Deceased was found collapsed in the toilet of his office, his fellow colleagues said he had acted normally with no evidence of any physical distress that day. They noticed his absence and at a search of the office premises found him collapsed on the floor in the toilet unresponsive. Blood was found on the floor of the toilet. The two experts were not able to ascertain the cause of death due to insufficient factual information on the Deceased's collapse. They concluded the following at P. 76 of the bundle:-
'There is no evidence to suggest that the death was due to a pre-existing congenital or hereditary condition or related to his previous medical condition. Neither is there evidence to suggest that the death was a result of his employment.'"
7. In order to succeed, as the learned judge said, the Applicant has to satisfy s 5 of the Employees' Compensation Ordinance ("the Ordinance") which provides as follows:
"(1) 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 this Ordinance.
(4) For the purposes of this Ordinance-
(a) 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;"
8. Section 5 uses the compound expression "injury by accident", which was used in s 1 of the Workmen's Compensation Acts 1897 as well as in s 1 of the Workmen's Compensation Act 1925. This expression has been the subject of numerous decisions.
9. Mr Sakhrani, for the Applicant, relied principally on Fenton v J Thorley & Co Ltd  AC 443, where Lord Macnaghten said:
"… Now the expression 'injury by accident' seems to me to be a compound expression. The words 'by accident' are, I think, introduced parenthetically as it were to qualify the word 'injury,' confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design. Then comes the question, Do the words 'arising out of and in the course of the employment' qualify the word 'accident,' or the word 'injury,' or the compound expression 'injury by accident'? I rather think the latter view is the correct one. … 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."
10. Lord Lindley also said at page 453:
"The word 'accident' is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word 'accident' is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events."
11. Fenton was followed by Clover, Clayton & Co Ltd v Hughes  AC 242 where Lord Loreburn LC said at page 244:
"What, then, is an 'accident'? It has been defined in this House as 'an unlooked for mishap or an untoward event, which is not expected or designed.' All the Lords who took part in the decision of Fenton v. Thorley [ AC 443] agreed in substance with this definition in Lord Macnaghten's speech. I take that as conclusive."
12. Lord Macnaghten added that the argument that:
"… There must be … an accident and an injury: you are not to confuse the injury with the accident. … (Fenton) … swept away these niceties of subtle disquisition and the endless perplexities of causation. It was held that 'injury by accident' meant nothing more than 'accidental injury' or 'accident,' as the word is popularly used. …"
13. Mr Samuel Chan, for the Respondent, has suggested that in Fife Coal Co Ltd v William Young  AC 479, which was concerned with the Workmen's Compensation Act, Lord Atkin had expressed a different view.
14. In Fife Coal, a packer in a coal mine whose work necessitated continual kneeling had acquired a condition described as "dropped foot" and became totally incapacitated. The arbitrator found that:
"… the incapacity was due to repeated pressure on the outside of the right knee when he was working in a crouching position in the course of his employment; that incapacity from dropped foot arising in this manner was a comparatively rare condition; and he held that the claimant's incapacity did not result from personal injury by accident arising out of and in the course of his employment, …"
and dismissed the claim. The workman succeeded on appeal to the Court of Appeal whose decision was upheld in the House of Lords.
15. It is against such background that the judgments in Fife Coal should be considered. The principal judgment was given by Viscount Caldecote LC, , which had the concurrence of Lord Russell of Killowen and Lord Thankerton (page 490) and probably Lord Romer as well (page 490).
16. Viscount Caldecote LC traced "a gradual but steady extension" of the meaning of the phrase "injury by accident" and said:
"It is easy to be wise after the event, but to-day [Fenton] seems a very clear case". page 483
17. But the Lord Chancellor went on to say, whilst commenting on decisions in the Court of Appeal involving what were described as "beat hand" and "beat knee" that:
"There is no reason to doubt the correctness of the decisions in the three cases I have last mentioned. In all of them the facts were such as to make it impossible to identify any event which could, however loosely, be called an accident. In these cases the workmen failed, not because a disease was outside the purview of the Workmen's Compensation Act altogether, but because the burden of proof that there had been an accident was not discharged." 484
18. Later the Lord Chancellor said at 486:
"… In Ormond v. Holmes & Co., Ld. [(1937) 30 BWCC 254], the workman was bound to fail, having regard to the finding that the work on which he was actually engaged when he collapsed...