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NG MING CHEONG v. MASS TRANSIT RAILWAY CORPORATION

Judgment Cited in Precedent Map Related
Vincent
CourtCourt of Appeal (Hong Kong)
Judgment Date03 September 1997
Citation[1997] HKLRD 1231
Judgement NumberCACV131/1997
Subject MatterCivil Appeal
CACV000131/1997 NG MING CHEONG v. MASS TRANSIT RAILWAY CORPORATION

1997, No.131
(Civil)

IN THE COURT OF APPEAL

(On appeal from Hong Kong District Court Employees' Compensation Case No.704 of 1995)

_______________

BETWEEN
NG MING CHEONG Appellant
AND
MASS TRANSIT RAILWAY CORPORATION Respondent

__________________

Coram: Hon Chan, C.J.H.C., Wong and Le Pichon, JJ. in Court

Date of hearing: 3 September 1997

Date of judgment: 3 September 1997

Date of handing down reasons: 24 October 1997

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J U D G M E N T

____________________

Le Pichon, J. (delivering the judgment of the Court) :

1. This appeal from the District Court arises under the provisions of the Employees' Compensation Ordinance, Cap.282 ("the Ordinance"). In the court below, the Appellant who was the applicant for compensation under the Ordinance obtained judgment in the sum of $111,965.55 which was assessed on the basis of his having a permanent loss of earning capacity of 15%. The Employees' Compensation (Ordinary Assessment) Board ("the Board") had issued a Certificate of Assessment on 5 June 1996 assessing the Appellant's permanent loss of earning capacity at 53%. The Appellant contends that compensation ought to have been assessed based on that percentage which would result in compensation of $392,620. We allowed the appeal. The reasons appear below.

The facts

2. The Appellant was injured in an accident at work on 10 December 1993. At the time of the accident, the Appellant was employed as a tradesman in the Estate Management Site Office of the Respondent at Hang Fa Chuen. He was stepping on steel bars to repaint an anti-burglary fence at the Respondent's site when two of the bars of the fence broke and he fell from a height of about 12 feet to the ground sustaining injuries to his back, right buttock and right shoulder. He received medical treatment but despite receiving extensive physiotherapy from 11 January to 1 July 1994 his symptoms continued to deteriorate. For some seven months after the accident his condition was not properly diagnosed. In fact he suffered a partial rotator cuff tear in his right shoulder. This was not discovered until late June 1994.

3. The Appellant returned to work on 22 July 1994 but that only lasted for a week as he suffered great pain on 27 July and was taken to hospital. He did not work after that until November 1994. Although the Appellant had been advised to do light work only, he was required to undertake work that was as heavy or heavier than that which he had had to do before his accident. He could not carry out his duties properly and was given a warning letter. When he tried to see the personnel officer to explain his situation, he was given another warning letter. This occurred on 30 December 1994. The Appellant suffered depression and attempted to kill himself. He was then treated as an in-patient in Castle Peak for a time and continues to receive treatment at the orthopaedic, psychiatric and neurological departments of the Prince of Wales Hospital.

4. On the eve of the expiration of 24 months from the date of the accident, the Appellant filed an application pursuant to section 18A(2) of the Ordinance to enforce his claim for compensation under the Ordinance. Had he not done so, his claim would have been time-barred under section 14. The application was filed on 8 December 1995. The Respondent filed an answer opposing the application by denying the allegations contained therein save for the fact that on the day of the accident the Appellant was employed by the Respondent and putting the Appellant to strict proof. No affirmative case was put forward in defence.

5. Approximately six months after the date of the Appellant's application, the Board issued a Certificate of Assessment. This certified that the assessment was made as of 22 May 1996, that the Appellant sustained injuries of right shoulder, right leg and back resulting in pain and stiffness of right shoulder, pain and wasting of right leg as well as psychosis with moderate disturbance in behaviour. It also certified three periods of absence from duty necessary as a result of the injury, namely, from 11/12/93 to 21/07/94, 28/07/94 to 04/11/94 and 02/01/95 to 10/12/95. In other words, during the two year period following the accident, the Appellant was only able to work for a period of one week in July and for about a period of eight weeks from early November to the end of December 1994. The Board assessed the Appellant's loss of earning capacity permanently caused by the injury at 53%.

6. The Note at the foot of the Certificate made it explicit that it was open to either party to object to the assessment within 14 days of the issuance of the certificate under section 16G(1) of the Ordinance or to appeal against the assessment within 6 months under section 18(1) and (2) of the Ordinance. The Respondent neither objected to the assessment nor lodged any appeal to the District Court against the assessment. Nor did it make any application for leave to appeal out of time against the assessment.

7. The Respondent failed to pay any compensation to the Appellant and the application filed in December 1995 therefore proceeded to a hearing on 1 May 1997 which lasted for five days. The Respondent disputed liability as well as quantum although liability was eventually conceded.

8. The learned judge did not consider that the Board's assessment was binding either on the Court or on the parties. He considered that he had to start afresh in assessing disability and determining the Appellant's claim. On that aspect, he heard oral evidence from seven experts, two orthopaedic surgeons, three psychiatrists and two urologists. In addition, the agreed medical report of a neurologist was also before the Court. The learned judge concluded from the medical evidence adduced that apart from the Appellant's rotator cuff injury, the rest of his complaints was caused by his own fictitious malingering rather than by the accident. Whilst he accepted that the Appellant suffered mental illness, he found that that resulted from the treatment the Appellant received at work rather than the effects of the accident. He assessed compensation on the basis that the Appellant had a permanent loss of earning capacity of only 15%.

Grounds of appeal

9. The grounds of appeal raise two issues :

(1) whether the Court was bound by the Board's assessment of 53% loss of earning capacity; and

(2) whether the Court erred in its interpretation of the medical evidence in finding that what precipitated the Appellant's mental illness was his treatment at work rather than the effects of the accident and in placing too much weight on the lack of organic pathology to explain the various symptoms of the Appellant.

The statutory framework

10. The Ordinance entitles an employee who is injured at work to claim compensation from his employer. Its provisions are designed to provide speedy relief and a significant part of claims made under the Ordinance do not require the intervention of the Court. Under the Ordinance, it is incumbent upon an employee who wishes to invoke its provisions to give notice of the accident to the employer who in turn is required to notify the Commissioner of Labour ("the Commissioner") within prescribed time limits irrespective of whether the accident gives rise to any liability to pay compensation. Section 16D(4) empowers the Commissioner to refer to an Ordinary Assessment Board any claim for compensation for an injury to an employee of which he has...

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