WONG LAM WEI HOLLY v. HOSPITAL AUTHORITY

CAMP 234/2024, [2025] HKCA 617

On Appeal From [2024] HKDC 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 234 OF 2024

(ON AN INTENDED APPEAL FROM DCEC NO. 2755 OF 2021)

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DECISION

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Hon Cheung JA (giving the Decision of the Court)  :

1.  By a summons filed on 29 November 2024, the applicant sought extension of time to appeal against the judgment of Deputy District Judge Joseph Vaughan (‘the Judge’)  dated 23 August 2024 (‘Judgment’).

2.  Pursuant to Order 59, rule 2A(5)  and Order 59, rule 14A(1)  of the Rules of the High Court, we will deal with the application on paper based on the submissions of the parties.

3.  By his judgment, the Judge awarded the applicant compensation pursuant to section 10 of the Employees’ Compensation Ordinance (Cap. 282)  (‘the Ordinance’)  for temporary incapacity in the sum of $1,228 based on two days of sick leave.

4.  We will grant the applicant extension of time to appeal for the following reasons :

1)  There is a delay of two months for lodging the appeal.  The applicant explained the delay is due to the fact that her legal aid certificate had not been extended to cover her appeal before the expiry of the appeal period and that she did not have the fund to seek private legal assistance.  It was after legal aid had been granted to her to oppose the respondent’s application to vary the costs order of the Judge that her assigned counsel advised her that she had good grounds against the section 10 award.  She gave instruction to pursue the appeal and legal aid was granted to cover her appeal on quantum.  We accept the explanation is a reasonable one.

2)  In terms of the merits of the appeal, we find that the applicant’s intended appeal is reasonably arguable.  The applicant has a pre-existing condition of low back pain.  The Judge also found that she had suffered a work-related injury within the meaning of the Ordinance.  The applicant was granted sick leave from 5 January 2020 to 6 January 2020, and from 28 April 2020 to 27 June 2021[1].  The Judge stated that :

‘ 70. ... For the purpose of the Ordinance, the employee is entitled to full compensation despite part of the injury was caused by her [pre-existing] condition.’

5.  In their joint expert report, Dr Tio and Dr Ko accepted that the applicant had pre-existing lower back pain prior to her injury on 5 January 2020.

6.  The Judge further stated :

‘ [74(c)  both Dr Tio and Dr Ko who examined the applicant and prepared a joint report are of the opinion that the sick leave period from 5 January 2020 to 6 January 2020, and from 28 April 2020 to 27 June 2021 was adequate and acceptable.’

7.  In [11.4] of the Joint Report, Dr Ko explained :

‘ For Ms. Wong’s pre-existing low back pain for the alleged accident and the possible exacerbation of back pain during her working hours whilst at work on 5 January 2020, conservative treatment should be the mainstay of treatment and this may include a short period of rest, a short course of medication +/- physiotherapy/occupational therapy up to 6-8 months would have been adequate and acceptable. In Ms. Wong’s case and in view of her PT and OT that finished by around mid-2021 Dr. Ko is inclined to recommend acceptance of her treatment and rehabilitation until around mid-2021.’

8.  However, when it comes to the assessment of her section 10 compensation, the Judge held :

‘ 93. In Pak Sai Ming v. JV Fitness Limited, DCEC 494/2014, 17 June 2016, the Court held at paragraph 7 that :-

“.... the presumption in s10(2)  of Cap 282 relates to the ‘period’ of absence certified to be necessary, not the ‘cause’ of the absence.  In order for an injured employee to receive compensation under s10(1), it is a pre-condition that the temporary incapacity, whether total or partial, “results” from the injury.  Therefore, the injured employee still has to establish causation ...”

94.  In the present case, I agree with the Respondent that neither Dr Tio nor Dr Ko seeks to distinguish the Applicant’s sick leave that was caused by her pre-existing low back pain from her sick leave that was caused by the accident.  In this connection, after the Incident on 5 January 2020, the Applicant was granted only 2 days sick leave.  Thereafter, she returned to work without taking any further sick leave until only 28 April 2020. I agree with the Respondent’s submission that the sick leave period attributable to the injury in this case should be 2 days only.

95.  Thus the section 10 claim should be calculated as follows:

$23,024.00 ÷ 30 x 2 days x 4/5 = $1,228.00.’

9.  It is reasonably arguable that the Judge had erred in the light of the Court of Final Appeal’s judgment in LKK Trans Ltd v Wong Hoi Chung (2006)  9 HKCFAR 103, where Bokhary PJ held that there should not be apportionment for, inter alia, temporary incapacity :

‘ 4. Employees’ compensation can be for death or for incapacity. Incapacity may be temporary or permanent and, whether temporary or permanent, may be total or partial. Death is dealt with by s.6. Permanent total incapacity is dealt with by s.7 while permanent partial incapacity is dealt with by s.9. Temporary incapacity whether total or partial is dealt with by s.10. Each of those four sections speaks of “where” the condition which it deals with —death, permanent total incapacity, permanent partial incapacity and temporary incapacity whether total or partial — results from the injury. But the apportionment contended for on the appellant-employer’s behalf involves reading “where” as if it meant something like “to the extent that” or “in so far as”.

5.    I do not say that there can be no context in which it would be appropriate to give the word “where” that sort of reading down. But the obvious object of the Employees’ Compensation Ordinance is speedily and with considerable certainty to provide urgently needed no-fault and compulsorily-insured compensation to injured employees or the families they leave behind.  And that is not a context in which I see any warrant for resorting to that sort of reading down in order to permit apportionment and thus introduce the delay and uncertainty which apportionment would generally entail.  For those reasons and the reasons given by Mr Justice Ribeiro PJ, I answer the second question against the appellant employer.  It suffices for full employees’ compensation that the injury was a cause (even if not the sole cause)  of the death, permanent total incapacity, permanent partial incapacity or temporary incapacity whether total or partial.’

10.  We will order that the costs of the application be reserved until the determination of the appeal.