TUNG SHUI BUN v. GAMMON BUILDING CONSTRUCTION LTD

HEAD NOTE

Whether section 17B(a) of the Employees' Ordinance enables the District Court to cancel an accord between employer and employee approved by the Commissioner for Labour when the accord had been satisfied.

Whether section 17B(b) confers jurisdiction to so cancel when the mistake at the time of the accord was in the extent or degree (pain) of injury and not in the nature (quality) of injury.

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RULING

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1. On 7th October 1982 the applicant was injured in the course of his employment with the respondent. In May 1983 a Medical Board assessed his permanent incapacity suffered at 2%. On 16th May 1983, an agreement between the parties was drawn up and it was finalised as an accord after they had signed and when the Commissioner for Labour approved it on 26th May 1983. In fulfilment of the accord, the respondent had paid and the applicant had received all the moneys due including compensation for temporary incapacity (sick leave) under section 10 of the Employees' Compensation Ordinance. Subsequent to his resumption of work the pain on his lower back came back to him which pain was the unfortunate result of the said injury.  He received further medical attention and in November 1983 by a second medical reassessment the Queen Mary Hospital put his permanent incapacity at 5%. Apparently not contented with that, the applicant consulted Dr. Wedderburn, a well known specialist in the field specialising in medical assessment mostly for employees.  Dr. Wedderburn agreed with the basic and original assessment of 2% but for psychosomatic (body-and-mind-related) reasons increased the assessment to at least 10% (the applicant did not give evidence on 10% but I have gathered it from Dr. Wedderburn's Report dated 16th November 1984 contained in the case file). Under cross-examination, the applicant admitted that the pain he now suffers is the same as in May 1983, time of the first assessment and that the only reason why he seeks to reopen the quantum of compensation is that he finds it impossible to find full-time employment.

2. Judgment was entered by one of my brethren and the matter came before me for assessment of compensation. It has come to my notice that the accord has not been cancelled under section 17B of Cap.282. It therefore necessarily falls upon me to decide whether it should be cancelled, such cancellation being a prerequisite of assessment of compensation in the circumstances.

3. Whether it can be cancelled hinges on the construction of section 17B(1)(a) and (b) which confer jurisdiction on the District Court to so cancel if it is proved that -

It was contended by Mr. Whiteley for the applicant that the sum paid in respect of the sick leave pericd (temporary incapacity) is not in accordance with section 10 inasmuch as further periods of sick leave hence temporary incapacity has been medically certified since after the accord whereas Mr. Miles submitted that the accord did accord with section 10 at the time it was made.   I am with Mr. Miles. There is no ambiguity and it is unequivocal in (a) that the sum already paid must at the time of the payment be or the sum agreed to be paid in some future date must when it is paid be in line with section 10. In the present case the sum agreed had already been paid and the alternative limb is not applicable. For the sum paid, (a) would only come into play when the sum did not accord with section 10 at the time when it was paid. That was net so here because at that time the applicant was entitled to no more than what he was paid by reason of the length of sick leave then granted. The subsequent grant of further sick leave does not fall within the ambit of (a). As a mistake or mistaken belief, it has to be dealt with in the capsule of (b).

4. The real issue under (b) can be narrowed down to whether "the true nature of the injury" extends to the extent or degree of injury from the quality of the injury. In M'Guire v. Paterson (G) & Co., Vol. VI, 1913, Butterworths Workmen's Compensation Cases, 370 it was held by the English Court of Appeal then that mutual mistake in estimation of the injuries did not invalidate the agreement. But the Workmen Compensation Act, 1906 on which the case was decided and its succeeding enactments up to the Second World War did not entail any provisions similar to our section 17B. It follows that that case does not provide us with conclusive guiding principle. (Page 376 last paragraph to top of p.377 and p.379 first paragraph read out in court.

5. In New Zealand, under exceptional harsh circumstances the Court did grant relief from an accord as in Morton v. Auckland Harbour Board (1913) 12 N.Z.W.C.C. 23, where it was found that the relief in question had been obtained from the plaintiff under stress of his poverty. However the Act under which it was so decided again contained no provisions comparable to our section 17B.

6. In the final analysis, section 17B has to be interpreted very much on its own as being Hong Kong Law.

7. "Injury" is certainly wide enough to cover any hurt done to or damage suffered by the body (see Butterworths Medical Dictionary, 2nd Edition page 890). Nonetheless in the context of section 17B "injury" must be read together with "nature" and "true" and not in isolation. What injury did the legislature have in mind when section 17 in its original form was enacted in 1953? Research from 1953 right up to 1982 (see Objects and Reasons to Workmen's Compensation Bills, 1953 through those to the Employees' Compensation (Amendment) Bills, 1982) reveals no mention of or reference to extent or degree of injury as having been envisaged.

8. Nature is defined in the Shorter Oxford English Dictionary to mean "the essential qualities of a thing; the inherent and inseparable combination of properties essentially pertaining to anything and giving it its fundamental character". In short, it means quality or all those ingredients that together give birth to fundamental character. Had the legislature intended section 17B to apply to the extent or degree of a injury in addition to its quality, it would have expressly said so or it would have simply said mistake as to injury without adding the words "true nature of". Here it is difficult to imagine how any of the presumptions in the Cannons of Interpretation of Statutes can be invoked in the light of the deliberate and express inclusion of the word "nature".

9. (b) is further complicated by the word "true". Why was it there - was it intended to further qualify the word "injury" or "nature" or both? "True" is defined in the Shorter Oxford English Dictionary as to mean exact, precise or accurate. It would be too far-stretched to read injury that by "true" the legislature intended to convey the quantity of injury in the sense of extent or degree as well as quality. Surely "true" is governed as much by "nature" meaning quality as injury. "True" here connotes the latent nature of the injury and as such it adds nothing to vary quality to quantity. When one asks the question what injury or more precisely what true injury, one is back to square one that it is the nature of them that matters.

10. In the present case there was no change in the nature of the injury from May 1983 to today. It has always been a back injury which suffers the applicant pain and a measure of incapacity which affects his ability to work to a certain extent. The second and the third assessment by Dr. Wedderburn merely vary the degree of the pain and not the nature of the injury. Had it been some change in the injury itself e.g. from a sprain to dislocation or a crack, it would have been a mistake as to its true nature. Or had it been some development of side injury in the adjoining part of the body as a result of this back injury, it would have been a mistake as to its true nature. Most unfortunate for the applicant, the mistake was in the quantity rather than the quality of the injury. The variation in quantity is not great enough to bring about a change in quality like water heated up to steam. In fact, what the applicant complaines of is that he still feels the pain not that it is more painful than it was.

11. If this conclusion "sounds discordantly narrow to modern years'' or if up-to-date social or public policy demands section 17(1)(b) to include quantity as well as quality, a change must be sought by legislation, unless of course I am wrong in my interpretation.

12. In the result, it is not open to me to set aside the accord (and indeed satisfaction) as sought and the application for assessment of damages is dismissed with the odd effect that the judgment entered by my brother (who has not returned from leave) which I have no jurisdiction to set aside must remain an empty one.