Employees’ Compensation — Court dismisses claim after finding no causation between spontaneous intracerebral haemorrhage and employment
In Wong Yun Wa, administratrix of the estate of Chau Chuk Kan v Surplus Link Limited t/a Choi Fook Delight Banquet and Choi Fook Luxury Banquet [2024] HKDC 1145, the Court held that the employee’s intracerebral haemorrhage was not caused or substantially caused by the high kitchen temperature and the physical exertion involved in the employee’s work duties. The Applicant’s claim was dismissed.
Patrick Szeto, instructed by Kenneth Lam, Solicitors, assigned by the Director of Legal Aid, acted for the Applicant, and Christina Lee, instructed by Hastings & Co. acted for the Respondent. Valerie Tang provides her analysis on the judgment hereinbelow.
Facts
At the material time, Chau Chuk Kan (“Deceased”) was employed as a dim sum chef in the Respondent’s Chinese restaurant. His work involved repeatedly placing trays of steamed rice and/or other food items into and retrieving them out of a steam cabinet. During work, the Deceased suffered from a spontaneous intracerebral haemorrhage (“SICH”) and collapsed. Liability was the only matter disputed at trial. Specifically, it was contended by the Applicant (being the wife of the Deceased after his death from lung cancer) that the Deceased’s SICH was caused or substantially contributed to by the high kitchen temperature and physical exertion involved in the Deceased’s work.
Legal Principles
For a claim under Section 5 of the Employees’ Compensation Ordinance (Cap. 282) (“ECO”) to succeed, one needs to establish that there was an accident (or a series of accidents) arising out of and in the course of employment, and that the said accident caused the employee’s injury. There must be both a causal connection between the employment and accident, and between the accident and the injury.
In particular, the “accident” itself must be a causative event separate from the injury, and that it ought to be an “unlooked for mishap or an untoward event which is not expected or designed”. The test for establishing legal causation between the accident and injury is whether the former is a “substantially contributing cause” of the latter on the balance of probabilities, and the Court will be assisted but not bound by medical evidence in such regard.
Liability
At trial, the Applicant identified two specific “series of events or incidents in the employment as the relevant Accident”: (1) temperature 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.
The Applicant’s case was however not borne out by expert evidence. The Court noted that the parties’ experts agreed that the underlying cause of the Deceased’s SICH was most likely hypertension or high blood pressure. Further, the Court found the Applicant’s expert’s opinion and evidence to be either inconsistent with the medical literature or lacks support from it. There was no medical evidence that hot temperature in the kitchen would increase the risk of SICH. Witness evidence at trial further showed that the Deceased was subject to less physical exertion than the Applicant’s pleaded case, and hence it was unlikely for the Deceased’s work demands to constitute a physical trigger to his SICH.
Expert evidence aside, the Court also queried whether the Deceased’s performance of regular work, namely the act of placing the trays of rice and/or other items of food into and retrieving them from the steam cabinet, can constitute an “accident” within the meaning of section 5(1) of the ECO, although the Court did not rule on the same.
Takeaways
Whether internal injuries, such as SICH in the present case, amount to an “accident” within the meaning of section 5(1) of the ECO is always a fact-sensitive question.
When dealing with such types of injuries in a claim for employees’ compensation, practitioners ought to first assess whether a specific event (or series of events) can be pinpointed as the “accident”, and whether such “accident” satisfies the common law quality of being an unexpected one. It is also important that causation between the alleged accident and injury be, at least to a certain extent, supported by expert medical evidence. While expert medical evidence pertains to the clinical cause of an injury and legal causation is ultimately a matter for judges, the Court cannot make any findings on legal causation in a vacuum, and will no doubt require the assistance of expert medical evidence.
Christina W. Lee
Christina read law as an external student of the University of London and sat the Bar Finals examination of England and Wales in 1988. That year she was called to the English Bar and the Hong Kong Bar. She has developed a practice in personal injuries, medical negligence and insurance related matters over the years.
Before joining the Bar Christina was a simultaneous interpreter with the Hong Kong Government leaving the civil service in 1988 when she was Chief Interpreter (Simultaneous Interpretation).
More details can be found in Christina’s profile.
Patrick Szeto
Patrick studied law at the University of Hong Kong and was admitted to the Hong Kong Bar in 1995. He served pupillage in Denis Chang’s Chambers and joined as a tenant in 1996 upon completion of pupillage. Patrick has developed a general mixed practice in both civil and criminal matters.
Patrick has appeared in the Court of Final Appeal on constitutional matters (adoption and right of abode), land matters (adverse possession), contract matters (conveyancing fees arrangement) and employees’ compensation matters (Wo Chun Wah v Employees Compensation Assistance Fund Board (2019) 22 HKCFAR 495 – court’s jurisdiction on costs and power of the ECAS Board to enter into settlement).
Visit Patrick’s profile for more details.
Valerie Tang
Valerie was called to the Bar in 2019. Since joining Chambers, Valerie has established a broad civil practice with an emphasis on commercial and matrimonial matters. Valerie has been a Member of the Chartered Institute of Arbitrators since 2020.
In A v B (HCMP 1625/2021), Valerie (with Mr Jose Remedios) acted for the successful Plaintiff in obtaining a Mareva injunction and Anton Piller Order under Section 21M in aid of foreign proceedings concerning HK$708 million worth of cryptocurrency.
More recently, Valerie obtained a return and non-removal order for children abducted from Hong Kong to a non-Hague Convention contracting state in MF v LJL (FCMC 655/2023).
In addition to her commercial and family practice, Valerie also regularly acts as sole advocate in land, probate, PI and employment matters. She is similarly well-versed in mental health related applications, such as Part II inquiries.
Prior to obtaining her law degree from the Chinese University of Hong Kong, Valerie read International Relations at the London School of Economics and Political Science. During her legal studies, she also served at the Legislative Council of Hong Kong from 2015 to 2018 where she was involved in, inter alia, bill drafting and policy research.
More details can be found in Valerie’s profile.
This article was first published on 12 August 2024.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.