KONG LAP HUNG v. CHAN CHIU AND ANOTHER

  Employees' Compensation Case No. 420 of 1989

HEADNOTE

The injured employee refused to undergo surgery even though there was 90% chance that it would reduce his permanent incapacity from 36% to 5% at the most.

IN THE DISTRICT COURT OF HONG KONG

EMPLOYEES' COMPENSATION CASE NO.420 OF 1989

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In the matter of an Application between -

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JUDGMENT

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1. This is a claim for employees' compensation. The accident out of which the claim arises happened on 8th January 1989, at a construction site in Kowloon at which the applicant employee, then aged 33, was engaged in manual labour as the employee of the lot respondent, a sub-contractor-of the 2nd respondent, the principal contractor. He lost his footing on a slippery staircase, fell several steps and injured his back. Liability was admitted on behalf of both respondents in the course of the hearing.

2. All the references to sections which I am about to make will be references to sections of the Employees' Compensation Ordinance, Cap. 282.

3. I am called upon to assess compensation in respect of: (i) permanent partial incapacity under section 9 and (ii) temporary incapacity under section 10. A claim for compensation in respect of the cost of constant attention under section 8 was pleaded but not pursued. A claim for the payment of medical expenses under section 10A was pleaded but has been disposed of by the acceptance by Mr Mackay for the employee of an undertaking offered by the respondents through Mr Pirie to pay the employee's unpaid hospital expenses. The Amended Notice of Application includes under the prayer for relief: "Appeal against the Assessment of. the Employees' Compensation (Ordinary Assessment) Board under Section 18 of the Ordinance".. No such appeal was pursued as a separate matter. The question of loss of earning capacity was dealt with simply as part of the case as a whole.

4. The respondents contend that the employee's entitlement to compensation is curtailed by an unreasonable refusal on his part to undergo surgery. I will come to this argument in due course. First, I will examine the position leaving aside the question of such curtailment for the time being.

5. Turning now to the claim in respect of permanent partial incapacity, the first thing to note is that the injury in question is not one specified in the First Schedule. The compensation payable under this head is therefore that laid down in section 9(1)(b), namely, "... such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was. capable of undertaking at that time ...".

6. So the first thing to decide is what compensation would be payable in the case of permanent total incapacity. Here I turn to section 7 (1)(a) which provides that such compensation shall be "... in the case of an employee under 40 years of age at the time of the accident, a lump sum equal . to 96 month's earnings or $485,000 whichever is the less ...". There is a dispute as to what the employee used to earn.

7. The employee's a evidence as to how many days per month he used to work was rather vague and did not bear out the 30 days put forward in his written application. The records pertaining to the number of days he worked for the 1st respondent from 25th October 1988 (when he began working for him) to 10th January 1989 (when the accident happened) have been produced. They show that for the two complete months of that period, November and December, he worked 24½ days and 23 days respectively. I will proceed on the basis. that he worked 24 days a month on average while in the 1st respondent's employ.

8. As far as his daily rate is concerned, the employee's evidence was that he earned $300 per day. I do not accept that. The records to which .I have referred indicate that his daily rate was $230 per day. I so find. His average monthly was therefore $5,520 ($230 x 24).

9. As far as the first part of the calculation called for under section 9(1)(b) is concerned, the dispute which I have just resolved does not really arise. 30 times $300 times 96 equals $864,000, while 24 times $230 times 96 equals $529,920. So even the respondents' total exceeds the $485.000 which in the maximum laid down in section 7(1)(a).

10. It is in connection with the second calculation called for under section 9(l)(b) that the dispute arises, since the calculation made by Dr David T. Lee, called on behalf of the employee, proceeds the assumption that he used to make $9,000 per month (by working 30 days per month at $300 per day).

11. At present, the employee works as a caretaker at a construction site earning on average between $3,000 to $4,000 per month. That is what he said in evidence. I regard a figure of $3,500 as the most reliable one on which to, proceed. Dr Lee's approach may be taken from his report of 13th August 1990 (which he adopted in evidence): "Regarding his loss of earning capacity, he earned $9,000.00 per month as a labourer in a construction site and he thinks he will be able to work as A watchman then his income will be decreased to $3,500,00 a month, therefore, his loss of earning capacity should be in the region of 60%."

12. It is common ground between the doctors - Dr Lee called on behalf of the employee and Dr Alvin Yeung called an behalf of the respondents - that the employee has suffered a back injury which precludes him from doing heavy manual labour and which will continue so to preclude him unless alleviated by surgery.

13. The principal dispute as to the employee's medical condition is this. He says that he also suffers from pain and numbness in his right leg and weakness of that limb. Dr Lee considers that complaint consistent with the injuries which he found. Dr Yeung does not, suggesting that such complaint is exaggerated. Having seen and heard the employee in the witness box, I believe him in regard to that complaint. Also, I find Dr Lee's evidence on the point more convincing than that of Dr Yeung.

14. Dr Yeung puts the employee's loss of earning capacity at 10%.  But he said that it would be in the. region of 30% if contrary to his view, the employee was restricted to very light work like that of a watchman or lift operator. Having regard to the whole of the evidence, which includes that of Dr Lee and the evidence of the employee's limited education, I find, in all the circumstances, that for all practical purposes the employee is more probably than not indeed so restricted.

15. I revert now to the approach by which Dr Lee arrived at a loss of earning capacity in the region of 60%. That sort of approach has been described - accurately in. my view - as the "actual wages "approach (see for example page 110 of HKLJ (1990) in which that expression is used by Mr G.R. McCormick in his case commentary beginning at page 105 of that volume).

16. Let us see what it yields applying the figures which I find rather than the ones which Dr Lee has assumed. The calculation runs thus:

17. It seems to me that the actual wages approach is an acceptable one where the actual wages being earned appear to bear a reasonable relationship to what, on the whole of the evidence, medical and otherwise, the employee can reasonably be expected to achieve. That appears to be the situation here. So I propose to adopt that approach. 36.59% is perhaps too fine a result at which to arrive. 36% seems reasonable; and I propose to adopt that percentage as the employee's loss of earnings here. 36% of $485,000 is $174,600.

18. I turn now to compensation in respect of temporary incapacity. The employee received sick leave certificates for a period of 15 months and 3 days as a period during which he was totally incapacitated. In fact, he was away' from work for a period of almost 20 months. But there is no evidence to justify his not returning to any work for any period longer than that covered by the sick leave certificates. On the whole of the evidence, I find that the employee's temporary incapacity was total for a period of l5 months and 3 days. Thereafter his incapacity was and is permanent and partial; and it is covered by the award under on What he is entitled to in respect of temporary incapacity under section 10 is a lump sum arrived at by multiplying two-thirds of $5,520 (what he used to earn-each-month) by 15.1 (the period in months during which he was totally incapacitated). The result is $55,568.

19. Therefore, unless the employee's entitlement is to be curtailed by reason of an unreasonable refusal to undergo surgery, the awards of compensation to him would be one of $174,600 in respect of permanent partial incapacity under section 9 and one of $55,568 in respect of temporary total incapacity under section 10, giving a total of $230,168.

20. The advice which the employee received from his own doctor, Dr Lee in August 1990 and the advice which he had received earlier in May 1990 from the respondents' doctor, Dr Yeung was to the effect that there was a 90% chance that an anterior spinal fusion would enable him, after a period off work of about 6-9 months followed by light work for about 6-3 months, to return to his pre-accident work with an incapacity of something like 5% at the most. It seems to me that as from August 1990, his refusal to undergo surgery in the form of anterior spinal fusion was unreasonable and that such unreasonableness has stood in the way of the improvement which I have just mentioned. If such unreasonableness was a basis of curtailing his compensation, the overall curtailment which would result would be along these lines. The compensation for permanent partial incapacity would be calculated on the basis of 5% incapacity to yield an award of only 5% of $485,000, which comes to $24,250. Of course, the award for temporary total incapacity would go up to 24 (rather than 15.1) months so that compensation under section 10 would be in the sum of $88,320 rather than $55,568.

21. This brings me to the far-reaching question of law which has been argued in this case, namely, whether such unreasonableness results in such curtailment.

22. As far as claims at common law are concerned, the general principle in regard to mitigation is this. A defendant is liable only for so much of the plaintiff's loss as is properly to be regarded as having been caused by the defendant's, breach of duty; and any loss which the defendant shows would have been avoided if the plaintiff had acted unreasonably in mitigating his loss is not properly to be so regarded.

23. Certainly in England that general principle is applied to personal injuries claims at common law in the sense explained in this passage from Singleton LJ's judgment in Marcroft v. Scruttons Ltd. [1954] 1 L1. L.R. 395 at P.399: -

" I do not wish to say anything that would hurt the feelings of a plaintiff in a case of this kind, but I believe it to be the duty of this Court to say that if a man is recommended by his own medical advisers and by others to undergo a course of treatment, he ought to undergo it; if he is advised that it gives him a reasonable chance of recovery, and if the treatment is reasonable, he ought to undergo it; if he will not, and does not, he must see that it is a little hard upon the defendants if they are to be asked to pay damages in respect of a period extending afterwards. If the general opinion is that that treatment would cure him, or, at least, render him in a much better state in every way, then he ought to undergo the treatment."

24. The applicability of such rule to employees' compensation claims in Hong Kong was pressed upon - and rejected by - the Court of Appeal in Hong Kong Paper Mills Ltd v. Chan Hin-Wu [1981] HKLR 556. Delivering the leading judgment, judgment Huggins VP left open the question whether the rule applied to personal injuries claims at common law in Hong Kong, and continued thus (at p.558): -

Leonard JA agreed with and had nothing to add to the Vice President's judgment. Cons JA delivered a short concurring judgment which he concluded by saying (at p.560) that : -

"Compensation under the scheme depends entirely upon the statutory provisions, which leave no room for Common Law principles of assessment of damages or, by the same token, of mitigation of damage."

25. It will be remembered that Huggins VP said that counsel for the employer in The Hong Kong Paper Mills case (supra). had not. been able to cite any comparable case in which employees' compensation had been reduced by reason of a failure to mitigate. For the employer in the present case, Mr Pirie says that there are indeed such cases, including ones decided in the House of Lord. Therefore, argues Mr Pirie, the Court of Appeal's decision was per incuriam.

26. Among the cases cited by Mr. Pirie is the decision of the House of Lords in Steele v. Robert George & Co. (1937) Ltd. 11942] AC 497. There Viscount Simon LC began his speech thus (at pp. 499-500):-

"My Lords, the Workmen's Compensation Acts do not contain any express provision that the weekly payment during incapacity shall come to an end or be reduced if the workman unreasonably refuses to undergo a surgical operation or other medical treatment for the purpose of ending, or diminishing, the incapacity. This ground of relief to the employer is based on the view that, if the proximate cause of the continuing incapacity is the unreasonable refusal of a workman to avail himself of surgical or medical skill, it can no longer be said that the incapacity "results from the injury within the meaning of s.9 of the Act of 1925, after the time when the rejected remedy might be confidently expected to bring about a cure. As Fletcher Moulton L.J. put it in Warncken v. R. Moreland & Son, Ld. (I), "a workman must behave reasonably, and if the. incapacity, or the continuance of the incapacity after a certain time, is due to the fact that he has not behaved reasonably, then the continuing incapacity is not a consequence of the accident, but a consequence of his own unreasonableness." This view of the matter has been recognised by this House in Fife Coal Co., Ld. v. Cant (2), and in Fyfe v. Fife Coal Co., Ld.(3), as well as in many cases in the Court of Appeal in England and in the Court of Session in Scotland. Andrews C.J., in dealing with the present case in the Court of Appeal in Northern Ireland, admirably stated some of the considerations involved as  follows (4): "If he (the workman) refuses to submit to an operation from defect of moral courage or because he is content to put up with the disablement and is willing to live. on a pittance under the Workmen's Compensation Act he is not entitled to compensation. To borrow the language of the Lord Justice Clerk" [Lord Macdonald in Donnelly v. Baird & Co., Ld. (5)], "the workman should do what a man of ordinary manly character would undergo for his own good, in a case when no question of compensation being due by another existed."

 

The principle is, therefore, established, though I may observe that cases might arise in which there would be some difficulty in working out the quantitative result of applying it. For example, if the proposed operation ran at best only work a  Partial cure, it does not appear to be an easy matter to fix what the reduced figure of compensation should be. And a converse case may be imagined. Supposing that a workman who is partially incapacitated undergoes an operation which is recommended as likely to cure him, but the operation fails and reduces him to total incapacity - is the compensation due from the employer thereby increased?"

The Lord Chancellor begins, it is to be observed, by noting the absence of any express provision in the English legislation for the withholding or reduction of workmen's compensation by reason of an unreasonable. refusal to undergo surgery or other medical treatment.

27. In Hong Kong, however, we have - as' the vice President pointed out in the passage from his judgment in The Hong Kong Paper Mills case (supra) quoted above - express statutory provisions in that regard. Section 16 of the Employee's Compensation ordinance, Cap. 282. reads:-

28. In Steele's Case (supra) Lord Wright said this (at p. 503):-

"The rule as to the effect of an unreasonable refusal by a workman to undergo an operation, which has been approved by the two decisions of this House which I have quoted, was a piece of Judicial legislation adopted by the Court of Appeal as long ago as 1903, but it has not been disavowed or qualified by the legislature in the subsequent revisions or re-enactments of the Act. It must be taken to have commended itself to the general sense of the community but it is not easy to understand or apply. It is rather a penalty provision than anything else. I find it not very logical to say that the workman's refusal breaks the chain of causality between the accident and the incapacity. On the contrary, effects of the accident still remain. The operation, furthermore, may not be successful, even if it is not refused."

By enacting section 16 the legislature here has, to employ Lord Wright's language, "disavowed or qualified" the rule.

29. Under our legislation, an unreasonable refusal to undergo surgery does not curtail an employee's entitlement to compensation save under certain conditions. These areas follows. First of all, such curtailment will riot arise unless the unreasonable refusal was in the face of the instructions (or possibly the advice) of the employer's doctor. Even then, the employer's doctor must be someone to whom the employee was obliged under subsection (6) to submit himself for treatment. And he is not so obliged unless he was not being attended by his own doctor. Next, curtailment cannot arise merely because the unreasonable refusal stood or stands in the way of cure or improvement. It can arise only upon proof that such refusal "aggravated" the injury.

30. It may have been far better if Steele's Case (supra) and other English cases like it had been drawn to the Court"' of Appeal's attention in The Hong Kong Paper Mills Case (supra). But I am not persuaded that the Court of Appeal's decision is rendered per incuriam by reason of the fact that such cases had not been cited to it.

31. So whether or not the entitlement to compensation of the employee in the present case is curtailed by reason of his refusal to undergo surgery falls to be decided under section 16. Deciding the question under this section, no curtailment arises. First of all, the employer's doctor was not someone to whom the employee was obliged under subsection(6) to submit himself for treatment, since he was not so obliged unless he was not attended. by his own doctor; and he was being attended by his own doctor. Secondly, curtailment does not arise because it cannot arise unless the unreasonable refusal "aggravated" the injury; and the evidence here goes no further than to show that such refusal stood and stands in the way of improvement. It prevented and prevents things getting better. But it did not and does not make them worst. Either of those two reasons - both of which apply - would be sufficient to avoid curtailment. It is unnecessary to consider whether even leaving aside -those. two reasons, curtailment could, as a matter of :law, be avoided on the basis that it is only unreasonable refusal to follow "instructions" rather than more advice which gives rise to 'the same. Here, on the facts, there were no instructions from the employer's doctor, merely advice.

32. The result is that the employee's entitlement to. employee's compensation is not curtailed. Subject to. argument as to how to take into account the $83,400 already paid by way of periodical payment calculated on the erroneous assumption that the employee used to make $9,000 per month, I award him $174,600 by way of compensation in respect of . permanent partial incapacity under section 9 and $55,568 by. way of compensation in respect of temporary total incapacity under section 10, so that the total award of compensation is. $230.168. I also note the respondents' undertaking (which has been accepted by the employee) to pay his unpaid hospital expenses.

33. Apart from the argument in regard to the $83,400 which I have just mentioned, I will also hear argument as to interests and costs. I am now handing down this judgment. I have already heard argument on the costs of the adjournment which I granted on 13th March 1991. Those costs I award to the employee. I find that Dr Yeung's reports had not been served on the employee's solicitors until the late date on which they said that they were served upon them. Such lateness was the cause of the need for the adjournment.

34. I will hear argument on the outstanding matters, in so far as they cannot be disposed of by way of agreement, on a date to be fixed in consultation with counsel's diaries.