Lkk Trans Ltd v Wong Hoi Chung

FACV No. 14 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 2005 (CIVIL)

(ON APPEAL FROM CACV No. 116 of 2004)

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Between:

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J U D G M E N T

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Chief Justice Li:

1. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Bokhary PJ:

2. Having had the benefit of reading it in draft, I respectfully agree with the judgment of Mr Justice Ribeiro PJ. And I add only a brief concurrence. I preface such concurrence with an acknowledgement of the assistance which I have derived from the judgments of the District Court (Her Honour Judge C B Chan) and the Court of Appeal (Rogers VP and Hartmann and Reyes JJ) and the arguments of Mr Denis Chang SC for the appellant employer and Ms Audrey Eu SC for the respondent employee.

3. Of the two questions identified by the Appeal Committee as questions of law which arise in the present case, I say no more on the first than this. Ms Eu is plainly right in conceding that s.10(5) of the Employees’ Compensation Ordinance, Cap. 282, would not preclude the sort of apportionment contended for by Mr Chang. So I turn to the second question identified by the Appeal Committee, which comes to whether the Ordinance, purposefully construed as a whole and in context, permits such apportionment.

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.

Mr Justice Chan PJ:

6. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

7. The question which arises for decision in the present appeal is as follows: Where an employee is injured in an accident at work resulting in permanent incapacity which is caused both by that injury and by a pre-existing disease, should the court limit the entitlement to Employees’ Compensation by apportioning the incapacity attributable solely to the injury as distinct from the disease? Both the Judge (DCEC 153/1999, H H Judge C B Chan; 23 March 2004) and the Court of Appeal (CACV 116/2004, Rogers VP, Hartmann and Reyes JJ; 26 November 2004) have answered it in the negative.

The accident

8. The accident occurred on 29 April 1997. The respondent, who was a delivery worker (then 43 years of age), fell from a goods lorry on which he was working, injuring his left hip on the concrete floor.

The injury and incapacity

9. The Judge found that the fall had caused a subchondral fracture of the left femoral head. The respondent was also found to have been suffering from a pre-existing degenerative disease known as avascular necrosis (“AVN”) affecting both hips. This is a condition whereby the femoral head becomes necrotic and deformed because of a loss of blood supply, leading to osteoarthritis of each hip. Medical examination indicated that in May 1997, the respondent was suffering from early AVN in his right hip but that his left hip showed AVN with a collapse of the femoral head.

10. On 14 July 1998, he underwent surgery. A rotational osteotomy was performed to reposition the left femoral head so that weight would be borne by that part of the bone which retained undamaged cartilage cover. In consequence, the respondent suffered a shortening of his left leg which eventually required a 5 cm shoe lift.

11. The Judge found that the fracture injury caused by the accident had aggravated and accelerated the process of the AVN and necessitated the operation which resulted in the leg-shortening. The finding was therefore that both the work-related injury and the pre-existing disease were concurrent contributing causes to the respondent’s permanent partial incapacity. While the evidence showed that some three years or so after the accident, the condition of the respondent’s right hip severely deteriorated, the doctors’ view was that this was unconnected with the accident and the Judge made it clear that she was solely concerned with the incapacity resulting from the injury to the left hip.

12. The respondent was on sick leave and received periodical payments for 36 months between the date of the accident and 28 April 2000. This was the maximum of such periodical payments allowed under s 10(5) of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”).

13. On 15 December 2000, the Assessment Board certified that as a result of his “left hip injury resulting in deformity, pain and stiffness”, the respondent had suffered a 40% loss of earning capacity caused by the injury. On 21 February 2001, after reviewing the assessment, the Board issued a certificate stating that his “left hip injury resulting in pain, stiffness and leg shortening” had led to a 60% loss of earning capacity permanently caused by the injury.

14. Application was made to the Judge for a further revision of the assessment under s 9(1A) of the Ordinance. That provision permits the court in certain cases to revise upwards the percentage of the loss of earning capacity permanently caused by the injury where the special circumstances of the employee have made the impact of such injury substantially more severe than the incapacity acknowledged in the assessment or specified in the Ordinance.

15. The Judge held that such a revision was required by the respondent’s special circumstances and substituted an assessment of 90% permanent partial incapacity caused by his left hip injury. In so doing she took it into account that the respondent had been a delivery worker since coming to Hong Kong in 1979; that he had returned to work in April 2000 but proved unable to do the light jobs he was given, leading to his dismissal in March 2002; that he was unable to stand or walk or even sit for long periods; that he could not use buses or mini-buses because of severe pain caused by jolting and so needed to use taxis or private cars as a means of transport; and that his education on the mainland extended only to Primary 6, leaving him without the qualifications or experience to take on sedentary clerical jobs which might have been considered a possibility. In summary, the Judge found that the respondent’s incapacity made his labour effectively unsaleable in the market and took his residual earning capacity to be not more than 10%.

The award

16. The compensation awarded by the Judge under s 9 of the Ordinance came to $1,138,233.38 ($17,565.33 pre-accident monthly salary x 72 x 90%). In making this award, the Judge did not apportion any part of the incapacity to the pre-existing left hip AVN and rejected the argument that the degenerative disease should be seen as a supervening cause of the incapacity, overtaking and nullifying the effects of the injury. This approach was upheld by the Court of Appeal.

This appeal

17. The appellant now invites the Court to find that the courts below were wrong in principle. The “supervening cause” argument mentioned above is not now pursued. However, it is submitted that the injury and the pre-existing AVN were concurrent causes of the incapacity and that, as a matter of construction of the Ordinance, there ought to be an apportionment of the incapacity attributable to the injury, with the compensation payable limited accordingly. The Court is asked to remit the case to the Judge at first instance for such apportionment.

Section 10(5) of the Ordinance

18. Section 10(5) provides:

An employee who has received periodical payments under this section for a period of 24 months from the date of the commencement of the temporary incapacity or for such further period being not more than 12 months as the Court may allow in any particular case shall no longer be entitled to periodical payments under this section but shall be deemed to have suffered permanent incapacity and the provisions of section 7 or 9, as the case may be, shall apply to the employee. (Italics supplied)

19. While the position is not entirely clear, on one reading of the judgments...