WONG SING FUNG v. FU MING STAINLESS ENGINEERING CO. LTD.

No. 76 of 1986
(Civil)

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HEADNOTE

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Employees' Compensation Ordinance (Cap. 282) - failure to have regard to a certificate of the Special Assessment Board and to questions of causation - requirement that a trial judge should give a reasoned judgment and furnish an adequate record emphasized.

                An employee sustained personal injuries arising out of and in the course of his employment and claimed compensation from his employers pursuant to the Employees' Compensation Ordinance. Liability was duly established but when the Deputy District Judge assessed and certified the figure for compensation at $114,920 he did not explain in his reserved judgment how he had arrived at such figure or why he had failed to give effect to a certificate of the Special Assessment Board. The Notes of Proceedings made no mention of a ruling precluding cross-examination on the issue of aggravation of injuries or of the circumstances in which the applicant's relevant employment had come to an end.

                Due to the absence of a reasoned judgment and of an adequate record

Held:- the judge's certificate should be quashed and a new trial ordered as to the amount of compensation to be paid to the applicant by his employers.

Hong Kong Paper Mills Ltd. v Chan Hin-wu 1981 HKLR 556 considered.

BETWEEN

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JUDGMENT

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Kempster, J.A.:

1. On 25th September 1984 Wong Sing Fung sustained personal injuries arising out of and in the course of his employment by Fu Ming Stainless Engineering Co. Ltd. He was then aged 52 years, which is a matter relevant to the provisions of section 7(1)(b) of the Employees' Compensation Ordinance (Cap. 282) and was an engineer and draftsman.

2. The middle and index fingers of Wong's right hand were cut by the blades of an electric fan. He was in hospital for one day and very soon returned to his employment at an enhanced wage. He applied to his employers for compensation pursuant to section 18A of the Ordinance. The issue of liability was determined in his favour on 26th September 1985.

3. In the meanwhile a Special assessment Board had certified Wong's permanent partial loss of earning capacity at 4%. Having regard to the provisions of section 16D(6) the fact that this assessment was made by such a Board demonstrates that the ordinary Assessment Board considered the claim to be one to which section 9(1A) applied; a section which makes special provision when the loss of earning capacity assessed pursuant to section 9(1) would be substantially less than the percentage of such loss caused by the injuries in the special circumstances of the employee taking into account his qualifications, previous training and experience.

4. In a reserved judgment given on 13th May of this year at the Tsuen Wan District Court Deputy Judge Shum assessed the sum payable by the employers to the applicant at a figure of $114,920 and also awarded interest as from 25th September 1984 to judgment at the rate of 5% per annum. The Certificate of Award bore the following day's date.

5. The employers appeal to this Court on the issue of quantum only claiming a reduction in the amount of compensation. The employee applicant, by way of cross appeal, contends that the amount should be increased and advances grounds not alluded-to by the Deputy Judge.

6. The judge did not condescend to explain how the overall figure was determined but from the Notes of Proceedings it would appear that the applicant had been earning "3,800 a month in his employment. Accordingly, if the formula set out in section 7(1)(b) was followed a multiplier of 72 fell to be applied giving a figure of $273,600. Currently, in a different type of job, he was earning $2,200 a month which constituted 58% of his former earnings. On this basis, it would appear, the judge found a 42% loss of capacity and, since no reference was made to the proviso to section 9(1)(b), applied the special provision of section 9(1A). It is common ground that although he had the evidence before him no award was made in relation to medical expenses under section 10A.

7. That was not, I am sorry to remark, the only omission in the judgment. No explanation appears for the failure to give effect to the certificate of the Special Assessment Board which, in the absence of any application for review under section 16G or appeal to the District Court under section 18, was to all intents and purposes agreed. At the very least, pursuant to section 16H, it was evidence of the matters stated therein. Prima facie it was necessary only to determine what figure constituted 4% of $273,600.

8. It is submitted that the judge properly applied an equation formulated, obiter, by Huggins V.P. in Hong Kong Paper Mills Ltd. v Chan Hin-wu ⁽¹⁾. But even if that formula be appropriate, and it may well be subject to anxious reconsideration by this Court at an appropriate time, it is noteworthy that the essential elements are not actual earnings, whether in alternative employment as at the date of the accident or in the relevant employment at such time, but earning capacity in one or other form of employment.

9. In applying the formula the judge also failed to take any account of argument based on an agreed medical report by Dr. Wedderburn which showed that the applicant would have been in much better shape following his injuries had he done what the doctors told him. The term aggravation was used and this may be thought relevant to the provisions both of section 5(1)(b) and of section 16(7) of the Ordinance. We were told that the judge made a ruling inhibiting further cross-examination in this context. It is not a ground of appeal. It is a matter of concern. Necessarily causation must be an issue if only by reason of the terms of section 7(1). We were also told that the applicant had been dismissed from his employment which would be not only a breach of the terms of section 48 but material to any computation of actual or prospective earning capacity. None of these matters is reflected in the "Notes of Proceedings'. Further, no attempt was made to define the parameters of inquiry under the Ordinance as compared with an equivalent inquiry at common law. We have not been furnished with the sort of reasoned judgment or record upon which alone an appellate court can make an effective determination.

10. In the event the only course which, in my view, is available to us is to quash the Certificate of Award dated 14th May 1986 and to order a new trial as to the amount of compensation to be paid to the applicant by his employers before a different judge of the District Court pursuant to RSC Order 59 Rule 11(1). I would make an order accordingly.

Fuad, J.A.:

11. I agree that the appeal should be allowed and with the order proposed by my Lord.

Clough, J.A.:

12. I also agree and have nothing to add.

(1)    1981 HKLR 556 at pages 559-560