Personal Injury
Outbreak of acute illness/disease during course of employment
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; [2024] HKEC 2485, Date of judgment: 17 July 2024
Fact
1. The Deceased was employed by the Respondent as a dim sum chef at a Chinese Restaurant. On 6 March 2018, he was assigned to work in the steam cabinet area of the kitchen to prepare food for customers at lunch hour. The temperature in the kitchen was high. Whilst the Deceased was retrieving a tray of green peppers from the steam cabinet (around 5 kg), he suffered from haemorrhagic stroke (出血性中風) thereby causing his body to lean towards his righthand side and he was held immediately by his colleagues (the “Accident”).
The neurological experts agreed that the Deceased suffered from intracerebral haemorrhage (“SICH”) (自發性腦溢血/出血性中風). The neurological experts opined that the underlying cause of the Deceased’s SICH was most likely hypertension or high blood pressure. Nearly one year and eight months later, on 1 November 2019, he passed away. The cause of death was lung cancer.
Issues
2. The Applicant contended that the Deceased’s SICH was caused or substantially contributed to by i) the high kitchen temperature; and ii) the physical exertion involved in the Decreased’s work. The Respondent asserted that the alleged injury was due to other causes, especially, the Deceased’s pre-existing medical conditions, including hypertension.
3. The crux of the matter is causation, i.e. 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 (It is not in dispute that the Decreased was in the course of his employment when he suffered the SICH). The court noted that 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.
4. The Court considered 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.
Ruling
5. The Applicant’s neurological expert was Dr Chan Sze and the Respondent’s one was Dr YuYuk Ling. The court found that Dr Chan’s opinion and evidence was either inconsistent with the medical literature or lacked support of it, while Dr Yu’s opinion and evidence was generally consistent with the medical literature. The Court adopted Dr Yu’s opinions for both issues.
Firstly, the Court adopted Dr Yu’s view that there was 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 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.
Secondly, it was most unlikely that work demand of the Deceased 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.
6. It was held that assuming the Deceased’s performance of regular work constituted an accident, Dr Yu’s opinion fell within the scenario 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”
7. In conclusion, the court held 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. The claim was dismissed.
Comments
8. This is an employees’ compensation claim arising from the sudden outbreak of (personal) diseases in the course of employment. This type of claim falls within the ambit of the Employees’ Compensation Ordinance (Cap. 282, Laws of Hong Kong) (“ECO”). Section 5(1) of 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”. The onus is on the applicant to prove causation on a balance of probability.
9. Usually, it is not in dispute that the applicant(s) suffered the disease(s) during the course of his employment. The dispute usually lies in whether the outbreak of the disease and the injury suffered was caused by “an accident” “arising out of employment” thereby coming within the meaning of Section 5(1) of ECO.
The law makes a distinction between an injury itself and an accident, i.e. the injury per se does not constitute an accident. The present case is another case to demonstrate that an “accident” must be a causative event or incident (Chief Adjudication Officer v Faulds [2000] 1 WLR 1035), thus it is difficult for a medical condition, such as a cardiac arrest (or a stroke), to be described as an “accident” (Secretary of State for Work and Pensions v Scullion [2010] EWCA Civ 310) as per previous authorities.
10. The present case applied and reinforced how an applicant could succeed in a claim under section 5(1) of ECO. An 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.
11. In gist, it is rather no easy task/not automatic for a sudden outbreak of a medical condition/disease to constitute an “accident” arising out of employment within the meaning of section 5(1) of ECO. Compensation would not be obtained unless the applicant successfully proved causation.