NG KWOK KEUNG v. WING SUM CONSTRUCTION & ENGINEERING CO LTD AND ANOTHER

DCEC1367/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1367 OF 2003

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IN THE MATTER OF AN APPLICATION BETWEEN

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DECISION

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1. This is an application for periodical payments under section 10 of the Employees' Compensation Ordinance (hereinafter referred to as "the Ordinance") in respect of the sick leave period from 1st August 2002 to 30th March 2004. Sick leave certificates have been issued up to 30th March 2004. This relates to incapacity that results from an injury caused by an accident arising out of and in the course of employment on the 26th July 2002. The monthly earnings according to the List of Earnings of the Applicant for the period of April to June 2002 are averaged at $22,000 per month. Monthly periodical payments under section 10 of the Ordinance would be at $22,000 x 4/5 = $17,600.

2. The Respondents oppose the application basically on two grounds both grounds were based on the report of Dr. Danny Tsoi dated 7th February 2004. The first ground is that the report of Dr. Danny Tsoi stated that "multiple sites of involvement suggested chronic or repetitive trauma". The Applicant had an earlier episode of injury on 8th May 2002 some two months before the accident. Dr. Tsoi stated that the captioned second injury could only be considered a triggering factor that aggravated the pre-existing wrist problem. There was an even earlier right hand laceration at work about ten years ago. Dr. Tsoi surmised that arising from that there could have been a fracture and further surmised that arising from the fracture the joint would be susceptible to post-traumatic degenerative changes. He stated that the accident on 26th July 2002 aggravated the symptoms which were the result of the 8th May 2002 accident. Dr. Tsoi stated that "normally sick leave for uncomplicated sprain injury of wrist seldom exceeds six months. In Mr. Ng's case, the slow recovery is mainly due to pre-existing wrist degeneration.

3. The second ground is based on the statement of Dr. Tsoi that he believes "that the right wrist should have reached a stage of maximal medical improvement by six months after wrist arthroscopy. Further sick leave is again not justified." Then Dr. Tsoi stated that the delay in receiving arthroscopic surgery was mainly due to the Applicant's onset of heart attack in December 2002. This might also affect his attendance at physiotherapy and occupational therapy. This might slow down his recovery rate.

4. In my view the Respondents' objections to the application could be answered by applying principles of law relevant to the objections raised. In relation to the determining of the Respondents' first ground of objection, the Court of Appeal decision in Lee Kin Kai v. Ocean Tramping Co. Ltd. is helpful. Hunter JA, delivering the principal judgment, made the following points:

"First causation is essentially a matter for the judge not the doctors. It is a matter upon which the judge will be assisted by the medical evidence but he is not dictated to by it.

Secondly it is important to bear in mind that the law and medicine here, it seems to me, apply quite different standards. In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient, it need not be shown to be the sole cause. The doctors practice what is known as the science of aetiology. In the words of one in particular, they look for 'clinical cause', proof certainly beyond reasonable doubt and perhaps beyond any doubt. They are looking for what Lord Kilbrandon called in McGhee v. National Coal Board 'an irrefragable chain of causation'.

Thirdly a judge when considering causation is not only entitled, he is bound, to use his common sense, to approach the question in the same way as a juror. The point was conveniently made in McGhee v National Coal Board which was a case where owing to the limitations of medical knowledge, the plaintiff was unable to prove a strict causal connection between the negligence and his injury. He failed in the courts below. The House of Lords agreed that common sense could be used to fill the gap."

5. I also refer to Compensation for Industrial Injury by Richard Lewis which is a book which guides the reader through the current rules for claiming compensation under the Industrial Injuries Scheme in the U.K. In considering causation the legal principle referred to in Richard Lewis' book at page 47 under the heading "(3) Earlier susceptibility to injury before the accident at work" is applicable to the Scheme of employees compensation in Hong Kong as other Hong Kong authorities also lays down the same principle :

"the work need only be a material not the predominant cause, so that compensation arises if a minor work incident has quite disproportionate physical results and the claimant suffers much more serious injury than would a normal worker. It does not matter then that the industrial cause is the "last straw which breaks the loaded camel's back", for the scheme takes its claimants as it finds them, including their pre-existing weaknesses."

6. These legal principles are directly on the 1st ground of objection. In employees' compensation cases, it must be borne in mind that "the scheme takes its claimants as it finds them including their pre-existing weakneses". Further causation is a matter for the judge not the doctors. It is clear that the accident was a substantially contributing cause of the injury. This is sufficient. Therefore, in my view there is no basis to the first ground of objection in this application.

7. In relation to the second ground of objection, Dr. Tsoi stated that the Applicant's heart attack had delayed the operation on the Applicant's wrist hence lengthening the period when the wrist would have healed after the operation. The same legal principle stated aforesaid apply in that "The doctors practice what is known as the science of aetiology. In the words of one in particular, they look for 'clinical cause', proof certainly beyond reasonable doubt and perhaps beyond any doubt. They are looking for what Lord Kilbrandon called in McGhee v. National Coal Board 'an irrefragable chain of causation'..."In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury." Furthermore according to the Applicant, he went for the operation at the earliest point when his doctor advised him to do so. There was no evidence of any delay. In Hong Kong Paper Mills Ltd. and Chan Hin-wu, [1981] HKLR page 558, Sir Alan Huggins of the Court of Appeal addressed a ground of appeal "that the judge erred by not considering whether the workman had failed to mitigate his loss by refusing to undergo a surgical operation recommended by his own medical adviser". In effect what was contended in that ground of appeal was that a workman under the Ordinance had a similar duty to mitigate his loss by undergoing surgical operation recommended by his medical adviser in the same was as a Plaintiff has at Common Law. The Appellant's Counsel in that case referred to an English case on the point namely McAuley v. London Transport Executive [1957] 2 L1.L.R. 500. In response Sir Alan Huggins stated:

"in my judgment it clearly has no application to a claim for workmen's compensation. There is a great difference between a claim for damages in negligence at Common Law and a claim for compensation under the Employees' Compensation Ordinance. Employees' compensation must be assessed solely under the statutory provisions and, unless the Ordinance provides for a reduction of the basic compensation specified, no reduction may be made."

8. In effect Sir Alan Huggins stated that this principle of mitigation of loss has no application to an employee's compensation claim. Regardless of the aforesaid, there is no evidence that the Applicant had been advised by his medical doctor to undergo the operation at any earlier time than when the Applicant was reasonably able to do so. Even if there was such evidence, (which there is none), under the aforesaid principle stated by Sir Alan Huggins, no mitigation of loss or deduction of compensation could be made in respect of Employees' Compensation cases in these circumstances. This is particularly so in this case, where there has been no unreasonable behaviour of the Applicant. Hence no deduction of the sick leave pay could be made on the basis of the comments of Dr. Tsoi aforesaid that the operation could have been performed earlier were it not for the Applicant's heart attack.

9. According to Dr. Tsoi, the period of sick leave should have reached a stage of maximal medical improvement by six months after wrist arthroscopy. He stated that further sick leave is not justified. The Respondents' Solicitor submits that no sick leave pay should be given after the period of six months from the date of the operation despite the certification of his sick leave certificates granting him sick leave until 30th March 2004. Surgery was conducted on the 9th August 2003. The 6 months period after surgery would have ended on 8th February 2004.

10. In relation to this, the Applicant's Solicitor referred to the deeming provision of section 10(2) of the Ordinance as follows:-

"(2) For the purposes of this section a period of absence from duty certified to be necessary by a medical practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury."

He submitted that from the authorities Yu Cheung Yim v. Lucky Friend Industrial Ltd unreported DCEC No. 160 of 1995 and Lai King Wai v. Kwai Chuen Container Service Company Limited DCEC No. 805 of 2002, Judge Longley in the first case and Judge Lok in the second case agreeing with Judge Longley's conclusion in the first case held that in the context of the Ordinance, in the absence of proof of fraud the legislature intended the deeming provision in section 10(2) to be a conclusive presumption.

11. The Respondents' Solicitor referred to the judgment of H.H. Judge Wesley Wong in Ali Shoukat and Hang Seng Bank Limited DCEC69/2002 wherein Judge Wesley Wong stated that the word "deemed" in section 10(2) of the Ordinance is defined in "Words and Phrases Legally Defined" as:

"Canada. The word "deemed" is capable of meaning "rebuttably presumed" that is presumed until the contrary is proved." Support for that is given by reference to a Canadian case."

H.H. Judge Wong stated that he agreed with the statement of H.H. Judge Muttrie in L. v. Equal Opportunities Commission and Ors DECO 6/1999 at page 74 that:

"If it is right, it means that the employer can look no further than the sick leave certificate. Section 16 is otiose. That cannot be right. Quite apart from that, in practice a sick leave certificate may be based on no great incapacity, depending on the attitude of the doctor, who may find it easier to issue the certificate and get an argumentative patient out of his surgery, than to go on listening to his complaints. It seems to me that the effect of subsections (2) and (6) is quite simply that where the employee has a sick leave certificate from a doctor, he is deemed to be totally incapacitated and so entitled to a flat four fifths of his monthly earnings; but this is a deeming provision rebuttable by medical evidence to the contrary. Certainly that is how it is treated in employee's compensation claims."

12 ． The Respondents' Solicitor also referred to the judgment of H.H. Judge Carlson in Kong Yuk-man and Centro Digital Pictures Limited DCEC774/2001. This is an application under section 10 (5) to extend the periodical payments beyond the 2 year period. Judge Carlson stated with reference to section 10 (2) of the Ordinance:

"This of course is so where there is nothing else to place alongside that sort of evidence. In this case there is the evidence of Dr. Lee. I have found his report, prima facie, compelling. If I were to go on and award more than what has already been paid and at the trial it emerges that Dr. Lee's evidence is preferred by the trial judge, there is a very real risk that the respondents will be done an injustice. Even though they are entitled to claim reimbursement . . ."

13. Again the Respondents' Solicitor referred to the case of Chung Ping Huen and Leighton Contractors (Asia) Limited and others DCEC169/2003. In this case, Judge Carlson in making a finding on the deeming provision of section 10(2) relied on his decision in Kong Yuk-man and Centro Digital Pictures Limited as support to make the same finding as his earlier decision.

14. However in Lai Yuen Hing and Lo Chi Hung Trading As Kam Hung Construction Co and Gammon Construction Limited DCEC14/2000, Deputy Judge K. Lin stated:

"If the deeming provision in s.10(2) was intended by the legislature to be rebuttable, those words like "in the absence of evidence to the contrary" or unless the contrary is proved" would have been inserted. Absent words to the similar effect, I find that on its true construction, the deeming provision in s. 10(2) is not rebuttable."

15. In Butterworths' Hong Kong Personal Injury Service at para 1552 under heading "(i) Is the injury permanent?" reference is made to the deeming provision in section 10 (5). It states:

"It is important to also recognize that this presumption of permanent incapacity contained in section 10 (5) is not expressed as being a rebuttable presumption. That is to say, the section contains no words like 'in the absence of evidence to the contrary' which would indicate that an employer could, by calling the appropriate evidence, rebut the presumption that after 24 months the employee is permanently incapacitated. This last point was noted by Judge Scriven in Chan Kan Fat v. Dickson Construction Co Ltd. . ."

Section 10 (5) is in these terms:

"(5) An employee who has received periodical payments under this section for a period of 24 months from the date of the commencement of the temporary incapacity or for such further period being not more than 12 months as the Court may allow in any particular case shall no longer be entitled to periodical payments under this section but shall be deemed to have suffered permanent incapacity and the provisions of section 7 or 9, as the case may be, shall apply to the employee."

16. It seems to me that the effect of the words "shall be deemed" in section 10(2) of the Ordinance must be the same as that in section 10 (5).

17. In Stroud's Judicial Dictionary Vol. 2 the definition of "deemed" at (6) states:

"Whether the word "deemed " when used in a statute established a conclusive or a rebuttable presumption depended upon the context."

18. Section 10 (2) states:

"shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury."

19. The words "irrespective of the outcome of the injury" shows that the outcome of the injury should not affect the effect of the deemed period of total temporary incapacity certified by the Ordinary Assessment Board or a Special Assessment Board or a medical practitioner. I agree with Judge Longley in his Judgment in Yu Cheung Yim and Lucky Friend Industrial Ltd. referred to above that:

"the context of the Employees Compensation Ordinance indicates that (in the absence of proof of fraud) the legislature intended it to be a conclusive presumption. The scheme of the Employees Compensation Ordinance is to provide (except when circumstances do not allow) a scheme of readily ascertainable compensation which, in the case of periodical payments under Section 10, is payable on the same day as wages. This object would be largely frustrated if a sick leave certificate was only to constitute prima facie evidence of the necessity for such sick leave. Furthermore it accords with social justice that an injured workman should be able to take sick leave recommended by his doctor confident in the knowledge that he will be remunerated during that period and that his employer cannot subsequently seek to demonstrate that it was unnecessary."

20. I therefore find that the word "deemed" in section 10(2) relates to a presumption that is not rebuttable.

21. For the aforesaid reasons I grant the application of the Applicant in these terms. I order that:-

(1) the 1st and 2nd Respondents do pay to the Applicant the outstanding periodical payments under sick leave in the sum of HK$83,624 for the period from 1st August 2002 to 23rd December 2003.

(2) I grant further sick leave in the sum of HK$17,600 per month from 24th December 2003 until the end of the sick leave period on the 30th March 2004 in the sum of $57,493.33.

22. I grant an order nisi that the 1st and 2nd Respondents do pay the Applicant's costs of this application to be taxed if not agreed and the Applicant's own costs to be taxed in accordance with the Legal Aid Regulations.