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Gammon Kier Lilley Joint Venture v Wong Tat Keung

Judgment Cited authorities 2 Cited in Precedent Map Related
Judgment Date14 April 1981
Year1981
Judgement NumberCACV6/1981
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000006/1981 GAMMON KIER LILLEY JOINT VENTURE v. WONG TAT KEUNG

CACV000006/1981

IN THE COURT OF APPEAL
1981 No. 6
(Civil)

BETWEEN
GAMMON KIER LILLEY JOINT VENTURE Appellant
and
WONG TAT KEUNG Respondent

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Coram: Leonard, J.A., Silke and Barker, JJ.

Date of Judgment: 14th April, 1981.

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JUDGMENT

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Barker, J.:

1. On the 22nd April 1978 the Respondent suffered an injury arising out of and during the course of his employment. He made application for compensation, under the Workmen's Compensation Ordinance now the Employees' Compensation Ordinance (Cap. 282) the hearing of which occurred on the 9th December 1980 before His Honour Judge Downey. The learned judge made an award of compensation of $25,620, together with interest at the rate of 13% on $20,000 from the 22nd April 1978 and at the same rate on $5,620 from the 1st May 1980.

2. The Appellant does not dispute the entitlement to or the amount of the award. But he appeals against the award of interest. This is an important matter, since it must affect many similar claims.

3. The Respondent concedes, rightly in our view, that there is no power to award such interest at Common Law. Therefore it is necessary to examine the provisions of the relevant Ordinances to see if there is any statutory power to make such an award.

4. It is conceded that there is no such express power conferred on the Court by the Workmen's Compensation Ordinance now the Employees' Compensation Ordinance or any regulations made thereunder. And so one must turn to the District Court Ordinance Cap. 336. Section 49(1) thereof reads:

"Subject to subsection (2), the Court may, in any proceedings brought in the Court for the recovery of any debt or damages, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment."

5. The Respondent's counsel further conceded that a claim for Workmen's Compensation did not fall within the ambit of the words "any proceedings brought in the Court for the recovery of any debt or damages". This concession was plainly right. An award of compensation does not give rise to, nor result from, the relationship of debtor and creditor (see The Western United Investment Co. Ltd. v. I.R.C. 1958 1 Ch 392 at p.405), nor is it damages in the ordinary sense of the word. (see Hall Brothers v. Young 1939 1 KB 748).

6. The Respondent submits that the power to award interest is conferred by section 21(1) of the Workmen's Compensation Ordinance, which reads as follows:

"21. (1) Save as is provided in this Ordinance and any rules made thereunder, the Court shall, upon or in connexion with any question to be investigated or determined thereunder, have all the powers and jurisdictions exercisable by the District Court in or in connexion with civil actions in such Court in like manner as if the Court had by the District Court Ordinance been empowered to determine all claims for compensation under this Ordinance whatever the amount involved and the law, rules and practice relating to such civil actions and to the enforcement of judgments and orders of the Court shall mutatis mutandis apply."

7. It is contended for the Respondent that the effect of section 21(1) of the Employees' Ordinance necessitates our reading section 49(1) of the District Court Ordinance as follows:

"The Court may, in any proceedings brought in the Court for the determination of a claim for Workmen's Compensation, order that there shall be included...

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