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Yu Po Ching v China State Construction Engineering (Hong Kong) Ltd And Another

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date13 February 2017
Year2017
Judgement NumberDCEC1673/2013
Subject MatterEmployee"s Compensation Case
CourtDistrict Court (Hong Kong)
DCEC1673/2013 YU PO CHING v. CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LTD AND ANOTHER

DCEC 1673/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1673 OF 2013

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IN THE MATTER OF AN APPLICATION BETWEEN:
YU PO CHING (余保程) for herself and on behalf of the members of the family of LAM CHI WAH ( 林智華), deceased Applicant
and
CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LIMITED
(中國建築工程(香港)有限公司)		 1st Respondent
KWONG HING MARBLE WORK COMPANY LIMITED
(廣興雲石工程有限公司)		 2nd Respondent

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Before: Deputy District Judge Elaine Liu in Court
Date of Hearing: 3, 5 & 6 January 2017
Date of Judgment: 13 February 2017

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JUDGMENT

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A. Background

1. On 5 April 2012 at about 2 pm, when Mr Lam Chi Wah (“the Deceased”) was working at an outdoor construction site, a rainstorm suddenly came. The Deceased and his co-workers ran to take shelter in a covered glass house. After the Deceased arrived at the shelter, he suddenly collapsed (“the Incident”). He was sent to the hospital and was certified dead on the same day.

2. According to the post-mortem report and the autopsy report, the medical cause of death was ischaemic heart disease.

3. A claim for employee’s compensation was lodged under sections 5 and 24 of the Employees’ Compensation Ordinance (“ECO”) against the respondents.

4. The Deceased was a marble worker employed by the 2nd respondent for about 4 years. The 1st respondent was the main contractor of a construction site at the rooftop at Lei Yue Mun Plaza, Kowloon (“the Construction Site”).

5. At the time of the Incident, the Deceased was aged 53, married with a 12 year old son and a 4 year old daughter.

6. The applicant is the Deceased’s widow. She, being an eligible member of the Deceased’s family under section 3 and section 6A of the ECO, took out this application for herself and on behalf of the Deceased’s family.

7. The applicant’s case was that the Deceased’s death was caused by and/or contributed to by the prolonged work pressure and heavy workload before the Incident.

8. The respondents disputed.

B. The Parties’ Agreement on Quantum

9. At the beginning of the trial, the parties have helpfully come to an agreement on the following matters in the event that this court finds for the applicant on the issue of liability:-

(1) the Deceased worked 24 days in March 2012 (which was the month immediately preceding the date of the Incident) as per the records of the respondents;

(2) the Deceased’s daily wages in March 2012 was $850;

(3) the monthly earnings of the Deceased calculated in accordance with section 11(1)(a) and section 6(1)(b) of the ECO are $850 x 24 working days x 60 = $1,224,000;

(4) the funeral expenses under section 6(5) of the ECO are $15,000;

(5) therefore, the total amount of compensation that should be awarded to the applicant (if liability is found) is $1,239,000 (being $1,224,000 + $15,000).

10. With this agreement of the parties, the only issue before the court is on liability.

C. Issue on Liability

11. Section 5(1) of the ECO provides that:-

“... if in any employment, personal injury by accident arising out of and in the course of employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”

12. The compensation awarded under section 5 of the ECO is on a no fault basis.

13. Under section 5(1), the applicant has to prove on a balance of probabilities that :-

(1) there was a personal injury by accident;

(2) the accident arose out of and in the course of the employment.

14. As to second requirement, section 5(4)(a) of the ECO provides a statutory 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.”

15. In LKK Trans Ltd v Wong Hoi Chung (2006) 9 HKCFAR 103 at paragraph 30, the Court of Final Appeal has enunciated that:-

“Plainly, this section [section 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. None of this is controversial.”

16. The respondents accepted and took no issue of the following:-

(1) the applicant was employed by the 2nd respondent at the time of the Incident[1];

(2) by virtue of section 24 of the ECO, the 1st respondent, which is the main contractor of the Construction Site, will be liable to pay the compensation to the applicant as if the applicant had been immediately employed by the 1st respondent (See also Wong Leung Tak v Hip Hing Construction Co Ltd [1991] 2 HKLR 345);

(3) the Incident took place in the course of the applicant’s employment[2];

(4) the respondents did not seek to rebut the presumption under section 5(4)(a) of the ECO[3]. No evidence was adduced to prove that the Incident was not arisen out of the employment with the 2nd respondent.

17. The respondents’ acceptance that the Incident took place in the course of the Deceased’s employment and did not seek to rebut the presumption in section 5(4)(a) suggested that there was no dispute on the second requirement, and that the only dispute was on whether or not there was a “personal injury by accident” within the meaning of section 5(1) of the ECO.

18. It transpired at the course of the trial that the respondents did take issue on the connection between the accident, the injury and the employment. The respondents also disputed the fact that there was increase in the workload of the Deceased at the months prior to his death.

19. In all fairness, I will also deal with the issue on the connection between the accident, the injury and the employment. Mr Shum, counsel for the applicant, did not disagree to this approach.

D. Legal Principles

20. I shall first consider the relevant legal principles.

“Personal Injury by Accident” – meaning of an “accident”

21. The expression “accident” was not defined in the ECO.

22. In the context of section 5 of the ECO or its English equivalent[4], the word “accident” has been defined by the House of Lords in Fenton v Thorley & Co Limited [1903] AC 443 as “an unlooked-for mishap or an untoward event which is not expected or designed” (per Lord Macnaghten at page 448) or in the words of Lord Lindley at page 453 “any unintended and unexpected occurrence which produces hurt or loss”.

23. This definition was widely adopted by subsequent English and local decisions, including Clover, Clayton & Co Limited v Hughes, [1910] AC 242; Yip Ho v Hong Kong & Kowloon Wharf & Godown Company Limited [1969] HKDCLR 1; Zhu Defang for herself and the members of the family of Kong Yi, deceased v Wing Hing Construction Company Limited and another, unreported DCEC 1160 of 2012, 28 August 2013; Sit Wing Yi Sibly v Berton Industrial Ltd [2013] 5 HKLRD 225)

24. “Accident” under section 5 of ECO is not limited to extraneous events such as car accident or industrial accident that we commonly come across.

25. It has been clearly accepted by the English and Hong Kong courts that “internal accident”, that is a physiological change invisible from outside the body (such as a rupture, an aneurism or an infarction), is capable of falling within the meaning of the term “accident” in section 5(1) of ECO. (Fife Coal Co Ltd v Young [1940] AC 479, per Lord Atkin at p. 488 and 489; Yip Ho, supra; Sit Wing Yi Sibly v Berton Industrial Ltd [2011] 4 HKLRD 91 (court of appeal) per Tang VP at p.97 and per Yuen JA at p.107)

26. In Fenton, supra, the deceased was at work at his machine which he had got through the operation on that day many times without hitch or difficulty. At night, when the time came for opening the vessel, the wheel could not turn. He then called a fellow workman to his assistance. The two men together set to work to move the wheel. Suddenly Fenton felt something which he describes as “a tear in his inside”, and it was found that he was ruptured. There was no evidence of any slip or wrench or sudden jerk. The House of Lords overturned the court of appeal decision and held that the injury sustained by Fenton was within the meaning of “injury by accident” under the Act.

27. Lord Macnaghten said at page 446 that:-

“If a man, in lifting a weight or trying to move something not easily moved, were to strain a muscle, or rick his back, or rupture himself, the mishap in ordinary parlance would be described as an accident. Anybody would say that the man had met with an accident in lifting a weight, or trying to move something too heavy for him.”

28. There is no need to prove carelessness. Lord Lindley said at pages 453 of Fenton:-

“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.”

29. In Clover, supra, an employee 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 death was caused by a strain...

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