YU CHEUNG YIM v. LUCKY FRIEND INDUSTIRAL LTD.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

CASE NO. ECC 160 OF 1995

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IN THE MATTER OF AN APPLICATION BETWEEN:

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JUDGEMENT

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1. On 1 May 1993 the Applicant, then aged 50, sustained an accident arising out of and in the course of his employment with the Respondent. His employment was as a press operator operating a press for manufacturing metal watch straps. A spanner being used by his colleague accidentally struck the Applicant on the head.

2. The Applicant brings claims under Sections 9, 10 and 10A Employees' Compensation Ordinance Cap. 282. Liability was admitted by the Respondent at the commencement of the hearing. Both parties agree that the amount payable under Section 10A is $473. It is further agreed between the parties that the relevant earnings of the Applicant for the purpose of calculating compensation under Section 9 and Section 10 are $6,697.

3. Two matters remain in issue between the parties:-

(i) In so far as the application under Section 9 is concerned, the loss of earning capacity caused by the injury.

(ii) In so far as the application under Section 10 is concerned, the duration of the period of temporary incapacity.

Loss of earning capacity :

4. This case is unusual in that, although the applicant has given evidence that he suffers 100 per cent loss of earning capacity, the expert called on his behalf (Dr. Edmond Woo) is of the view that the applicant 'is grossly exaggerating his deficits'. Dr. Woo, in a very helpful report dated 31 August 1995, sets out the factors which led him to this view. I do not intend to repeat them. Dr. Woo describes the head injury suffered by Mr. Yu is being 'very mild'. Dr. Woo's conclusions as to the nature of the head injury are consistent with those of the Respondent's medical expert, Dr. Fali Shroff who also classified the head injury as 'very mild' (the least severe category of head injury).

5. I have no hesitation in accepting Dr. Woo's conclusion that the applicant is grossly exaggerating his condition. Even in the relatively short time he was in the witness box the Applicant's propensity to exaggerate was apparent. At the start of his evidence he purported to have great difficulty in seeing his own signature which appears at the bottom of the statement he made to his solicitor (see page 13 of bundle) yet later in evidence he appeared to have no difficulty in referring to a piece of paper, full of Chinese characters in manuscript, from which he was able to relate his various alleged disabilities to the court.

6. As Dr. Woo himself remarks in his report, the fact that the applicant is exaggerating makes it very difficult to assess his actual degree of impairment. The same would of course apply to the applicants loss of earning capacity. Dr. Woo's view is that applicant is capable of returning to his pre-accident employment as a press operator. That also is Dr. Shroff's view. I accept their views. The job of a press operator does not involve heavy manual work. Dr. Woo said that one of the criteria he uses in attempting to assess loss of earning capacity in such circumstances is to ask the question: assuming the applicant does genuinely suffer headaches and dizziness, how many days per month would he be unable to work at his previous occupation? Dr. Woo's conclusion on this basis is that the applicant should not be off work more than 3 - 4 days per month and so his loss of earning capacity 'should not exceed' 15%. Dr. Woo was therefore only giving maximum figures. Given that Dr. Shroff also considered that the applicant is able to resume his pre-accident employment it is likely that his estimate of loss of earning capacity would be made on a similar basis to that adopted by Dr. Woo. Dr. Shroff however assessed the loss of earning capacity at 'no more than 3%'. The Employees Compensation (Ordinary Assessment) Board considered the applicant's case (over 18 months after Dr. Shroff's report) (see page 57 bundle) on 25 September 1995 and assessed a 6% loss of earning capacity.

7. I am aware that is is for this court to assess the loss of earning capacity of the Applicant and that function cannot be relegated to or usurped by a Medical Assessment Board. This is a case however where the court is obliged to reach its decision in circumstances where the Applicant's lack of frankness has meant that there are few features of his condition that can be established with any precision. I am prepared to accept that he still suffers, or at least believes he suffers, headaches and dizziness and that there are days he would feel that he could not go to work if he was to go back to his old employment. It seems to me likely that the Medical Assessment Board's assessment of 6% loss of earning capacity would have been based on such a consideration. That figure seems to me to be as realistic figure of the percentage of days work the applicant would be likely reasonably to lose through his condition as can be achieved in circumstances brought about by the Applicant's lack of frankness.

8. I therefore assess a loss of earning capacity of 6% and assess compensation under Section 9 as follows:-

(72 x $6,697) x 6/100 = $28,931

Section 10 : Duration of period of temporary incapacity

9. The Applicant claims to be entitled to compensation for temporary incapacity during the 678 days certified to be necessary by the Board in its Certificate of Assessment (page 57). He has also produced a further sick leave certificate dated 20 March 1995 from the neurosurgical unit of Queen Elizabeth Hospital which covers a further period of 20 days (page 126). He therefore claims compensation for a period of 698 days.

10. The Respondent argues that Dr. Shroff, whom the Applicant did not seek to cross examination, was of the view that the applicant should have been able to return to his previous employment within 5 or 6 months of the injury and that the applicant is only entitled to compensation for temporary incapacity during that period.

11. The applicant's argument is that by virtue of the 'deeming' provision in Section 10 (2) Employees Compensation Ordinance this court cannot go behind the sick leave certificates (and the Certificate of Assessment) being 'periods of absence from duty certified to be necessary by a medical practitioner' and an 'Ordinary Assessment Board'.

12. I was referred to the case of Chan Hon Chu v Top Crown Electroplating Factory Limited (ECC34/85) in which Judge Souyave stated that a period of sick leave certified to be necessary under Section 10 (2) Employees Compensation Ordinance was the minimum period for which an injured employee is entitled to claim compensation for temporary incapacity. Although the issue in that case was whether such a certificate was the maximum period for which such a claim could be made, I am of the view that the words of Judge Souyave to which I have referred accurately state the law.

13. Whether or not the word 'deemed' when used in a Statute establishes a conclusive or rebuttable presumption depends upon the context. I am satisfied 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.

14. Both the Certificate of Assessment of the Ordinary Assessment Board dated 25 September 1995 and the sick leave certificate dated 20 March 1995 fall within the terms of Section 10(2) Employees Compensation Ordinance I do not find that either were obtained by the Applicant fraudulently. The applicant is accordingly entitled to compensation for temporary incapacity during the period specified therein (i.e. 698 days). The compensation payable would be calculated as follows:-

$6,697/30 x 698 (days) x 2/3 = $103,877

15. I find that of the $80,758 paid by the Respondent to the applicant during his period of sick leave, $7,370 related to wages earned by the applicant shortly after the accident, as Miss Lai Ching Fong testified. The balance of $73,388 falls to be deducted from compensation payable in respect of temporary incapacity under Section 10.

16. I find therefore that the sum of $30,489 is payable by the Respondent to the Applicant under Section 10.

17. I accordingly assess and award compensation as follows:-

Under Section 9 : $28,931

Under Section 10 : $30,489

Under Section S10A : $473

18. The Respondent is to pay interest on the total sum of 59,893 at 6% from 1 May 1993 until today and thereafter at judgement rate until payment.

19. Unless either party makes application to the court within 14 days of today the Applicant's costs to be taxed and paid by the Respondent.

20. The Applicants own costs to be taxed in accordance with Legal Aid Regulations.

21. Payment to be made into court within 14 days and thereafter, subject to the Director of Legal Aid's first charge, to be paid out to the Applicant.