CHUNG PING HUEN v. LEIGHTON CONTRACTORS (ASIA) LTD AND OTHERS

DCEC169/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 169 OF 2003

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R U L I N G

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1. This is a very finely balanced matter where I am bound to say that my mind has wavered in the course of the argument which has been very well put on both sides.

2. The background to all of this is that on 23 February 2001 the applicant fell a distance of about 7 feet whilst he was climbing a ladder. I say that notwithstanding the fact that the Answer denies the events that are relied upon by the applicant in bringing this application for employee's compensation.

3. On his case he fell that distance and fractured his left heel, and it is clear from all the medical evidence that he sustained an extremely unpleasant injury. And as one can see from Dr Lam's report, pages 76 to 77 of the bundle, he had to undergo four operations under general anaesthetic between 23 February 2001 and 28 March 2002, which was when he underwent the last of those operations.

4. The application today is for me to extend the period of periodical payments beyond the primary two-year provided for by the Ordinance.

5. The respondents have paid for the whole of the primary two-year period and an extension is now sought up to 2 May this year, so really the issue is a rather modest one, when stated in that way, because the amount involved is a little under $28,000. Nevertheless, the application has been very keenly contested by the respondents for a number of reasons which I will now come to.

6. In the usual way the applicant's case is supported by medical certificates up to 2 May this year and the main medical evidence filed on his behalf is the report by Dr Lam. Based on an examination by him on 20 June this year, his final conclusion being that the length of sick leave certified by the hospital is entirely appropriate.

7. Against that opinion there is the report of Dr Lee, who has come to the view that for this type of injury, generally speaking, one would expect the fracture to have healed after a period of 12 weeks, although, very properly, he accepts that of course this must vary from case to case. Having regard to this particular matter, he has come to the conclusion that 12 months would have been entirely appropriate, notwithstanding all the difficulties which this applicant has had to deal with in the course of his treatment and recovery.

8. On a worst case basis, as it were, Dr Lee says that certainly by the time that he saw the applicant the last time, which was in November 2002, he had come to the view that the condition had clearly stabilised by then and whatever difficulties were left over were now permanent, there might be a slight improvement, but there is no reason why after November 2002 this applicant could have not returned to work.

9. So the respondents' case is that, if anything, by paying for the whole of the two-year period after the accident, they have, if anything, overpaid the applicant by something like $40,000.

10. The main thrust of the respondents' case in contesting the application today is that there are here serious medical issues going to the appropriate length of sick leave which I cannot resolve today in a summary way. This matter will need to be heard out at the trial when the judge, who will have the benefit of seeing the medical experts examined and cross-examined, can come to a more definitive view on what is the appropriate length of sick leave.

11. As against that, Mr Chik, who, if I may say so, has said everything that could possibly be said on behalf of the applicant, submits that one needs to look at the scheme of the legislation which provides for periodical payments in order to alleviate the injured workman's financial condition whilst he is unable to go back to work, and this is what one finds here.

12. There are, of course, medical certificates. There is, in effect, a presumption created by the Ordinance that the medical certificates in a sense speak for themselves and I should give full weight to those certificates in accordance with the Ordinance.

13. In this case it goes further than that because there is, says Mr Chik, a compelling medical report which is well reasoned by Dr Lam to suggest that in this particular case, where there have been so many complications, there is every reason for suggesting that sick leave up to 2 May will be found to have been entirely justified by the trial judge when and if he is put to it to determine this issue.

14. One of the other matters which Mr Wong on behalf of the respondents has drawn attention to is this, that if I were to in fact allow this further payment, that may well result in the applicant being overpaid by as much as $70,000 with the result that if the respondents were to ultimately succeed, there is very little prospect of the applicant being able to repay the overpayment and that would result in an injustice being done to the respondents, and for that proposition he relies on a decision of mine, the case of Kong Yuk-man v Centro Digital Pictures Limited, decided on 15 April 2002.

15. I am bound to say that Mr Wong's submission is one that must ultimately carry the day on this occasion. I do think that where this matter is finely balanced and where there is compelling evidence in the form of the final two reports of Dr Lee, that the situation is that, certainly by November 2002, the applicant should have been in a position where he could have started looking for work. And, indeed, where in fact he was paid beyond that period, then I do not think it would be right to now go further and award him this albeit modest sum that he is now asking for to take him up to the expiry of the dated medical certificates.

16. I think this is one of these cases where there are real issues which fall to be decided and can only be decided by the trial judge with the benefit of live evidence and, accordingly, this application must fail.