Hong Kong Paper Mills Ltd v. Chan Hin Wu
Read the full judgment text of CACV 45/1981 on BabelCite. This Court of Appeal judgment was delivered on 18 June 1981 before Sir Alan Huggins VP, Leonard JA, Cons JA.
Workmen's Compensation – refusal by workman to undergo surgical operation recommended by his own medical advisers – no duty to mitigate loss as where he disregards instructions of employer's medical practitioner – distinction to be drawn between fitness for work and ability to find work – permanent partial incapacity – proper assessment of compensation under s.9(1)(b) of Workmen's Compensation Ordinance – workman unfit for ordinary occupation as general labourer but capable of sedentary or light office-type work – assessment of loss of earning capacity – whether 100% award permissible – Employees' Compensation Ordinance – statutory scheme leaves no room for common law principles of assessment of damages or mitigation – section 16(7) reduction provision confined to refusal of treatment by employer's medical practitioner under s.16(6) – Marcroft v Scruttons Ltd and McAuley v London Transport Executive distinguished as common law personal injury cases – First Schedule percentages – workman not totally paralysed or bedridden cannot claim 100% – medical evidence showing 50% loss of use of leg above knee plus allowance for back injury – appeal allowed – award of $36,920 substituted (50% of $63,840 total incapacity figure) – Patrick S.O. Chan (Deacons) for Appellant – M. Bunting (D.L.A.) for Respondent.
Legal issues: Whether workmen's compensation can be reduced for refusal to undergo surgery recommended by the workman's own medical advisers · Whether 100% loss of earning capacity could be awarded where the workman was physically fit for some sedentary work
Outcome: Appeal allowed; the District Judge's award based on 100% loss of earning capacity was set aside and substituted with an award based on 50% loss of earning capacity.
Cited by 81 cases
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CACV000045/1981 Workmen's Compensation - refusal by workman to undergo surgical operation recommended by his own medical advisers - no duty to mitigate loss as where he disregards instructions of employer's medical practitioner - distinction to be drawn between fitness for work and ability to find work - permanent partial incapacity -proper assessment of compensation under s.9(1)(b) of Workmen's Compensation Ordinance. Dates of hearing: 8th June, 1981 and 18th June, 1981 Patrick S.O. Chan (Deacons) for Appellant. M. Bunting (D.L.A.) for Respondent.
----------------- Coram: Sir Alan Huggins, V.-P., Leonard & Cons, JJ.A. Dates of hearing: 8th June, 1981 and 18th June, 1981 Date of Judgment: 18th June 1981 ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P. : 1. This is an appeal by an employer against the quantum of workmen's compensation awarded in respect of an injury for which he admitted liability under the Workmen's Compensation Ordinance. 2. We reserved judgment solely because of the difficulty which we experienced by reason of the absence of properly drafted grounds of appeal. Indeed, it was only as the argument progressed that the real grounds of complaint eventually emerged and we never received a statement of them in writing. This has placed counsel for the Respondent and the court in a most invidious position. 3. As I understand them the grounds of appeal as sought to be argued can be stated thus:
4. The first of these grounds was not raised by the Notice of Appeal and does not appear to have been argued in the Court below. In effect what is contended is that a workman claiming compensation under the Ordinance is under a similar duty to that imposed upon a plaintiff at Common Law to mitigate his damages. The Appellant suffered prolapse of three intervertebral discs in the lumbar spine and was advised to have discectomy and anterior spinal fusion. He at first consented, but on the eve of the operation changed his mind. At that time, according to the Judge's findings, the information given to him was that the prognosis, if the operation were performed, was a 70% to 30% chance of recovery. The Judge appears to have believed Dr. H.C. Ho, who said that the workman was warned of the possible risks of operation, those risks being "the same as under general anaesthesia and he might have a small chance that the symptoms would be worse". It is argued that in the circumstances it was unreasonable for the workman to refuse the treatment offered and recommended. Evidence was given by surgeons who examined the workman for the purposes of the litigation and the Judge preferred that of Dr. Hodgson to the effect that the recommended treatment would have resulted in complete recovery with only a residual back-ache which would not have affected the workman's capacity to work in his ordinary occupation as a general labourer. That opinion was not, however, available to the workman when he made his decision. 5. Mr. P. Chan, whilst accepting that the reasonableness of the workman's conduct was a matter of fact for the Judge, sought support for his argument from Marcroft v Scruttons Ltd. 1954 1 Lloyd's Rep. 395 and McAuley v London Transport Executive 1957 2 Lloyd's Rep. 500. In the latter case Jenkins, L.J. said at p.505:
I wish to leave open the question whether the passage I have cited can be applied in Hong Kong even to a claim for damages where that claim is by a Chinese with a background comparable to that of the workman in the present case. Although Marcroft v Scruttons Ltd. has a superficial similarity to McAuley v London Transport Executive, it was in truth decided upon very special facts. The claim was for damages for personal injuries and the plaintiff declined to accept the advice of his doctor, but there the similarity ends. Mr. Marcroft developed severe nervous shock as a result of his injury and was asked to undergo electro-convulsive therapy in a mental hospital. His objection was not to the treatment itself but to the place where it was to be given and all that was held was that the defendant should not have to pay for the continuing loss, which could have been prevented but for an objection which was considered unreasonable. Indeed, two of the Judges expressly said that he was not in a fit state to make a reasonable decision by reason of his anxiety neurosis. It was in that context that Singleton, L.J. said at p.399:
6. Whether or not MaAuley v London Transport Executive lays down a principle which ought to be of general application in Hong Kong, in my judgment it clearly has no application to a claim for workmen's compensation. There is a great difference between a claim for damages in negligence at Common Law and a claim for compensation under the Workmen's Compensation Ordinance. Workmen's compensation must be assessed solely under the statutory provisions and, unless the Ordinance provides for a reduction of the basis compensation specified, no reduction may be made. Mr. Chan has been able to cite no comparable case where workmen's compensation has been reduced on this ground. However, the statute does make express provision for the reduction of compensation in one particular case: section 16(7) provides -
That subsection has no application here because the workman was not required by the employer to submit himself for treatment by a medical practitioner without expense to himself under subsection (6), as he might have been: the advice declined was that of the workman's own medical advisers. 7. For these reasons I think the first ground of appeal fails. 8. The second ground of appeal is based upon the following passage in the judgment of the learned District Judge:
No challenge is made to the finding that the workman is unfit and unable to carry out his ordinary occupation of a general labourer: what is contended is that in the absence of evidence that he was unfit and unable to carry on any other occupation it was wrong to award him compensation on the basis of a 100% incapacity. Not even the workman's own expert was prepared to say that the workman was either unemployable or "virtually unemployable": he said
The workman himself denied that he had ever been a book-keeper in China and it may perhaps be inferred from the passage I have cited from the judgment that the learned judge believed the workman on this point. Nevertheless he accepted the opinions of Dr. Hodgson where they disagreed with those of Dr. Craig and it seems reasonable to assume that he accepted the opinions of both surgeons where they agreed. Whether or not the workman had been a book-keeper in China, Dr. Craig obviously thought he was physically fit to do a sedentary job of that kind. Dr. Hodgson's view as to this is shown by the following question and answer:
What the learned Judge has done is to assume that although the workman was fit to do such sedentary work it was unlikely that he would have been able to find such work. That may or may not be the case, but I do not think the employer can be held liable for the lack of job opportunities in the Colony. 9. This is a case where the workman suffers from permanent partial incapacity. The Judge so found and the finding has not been challenged. He rightly concluded that the compensation should be assessed under s.9(1), which at the material time read in part:
It is common ground that the injury is not specified in the First Schedule. It is also common ground that the Judge rightly calculated the compensation payable in case of permanent total incapacity at $63,840. The solicitor for the workman did not, indeed, ask for an award based upon a loss of earning capacity of 100% but on a loss which "approaches 100%. With the utmost respect to the draftsmen and the Legislature I am not even sure that s. 9(1)(b) makes sense in the context. A percentage cannot be proportionate to a loss: it can be equal to a loss, or one may have a proportion which is equal to the proportion which one earning capacity bears to another earning capacity, and I can only deduce that the equation which was intended was
That still leaves the difficulty in the present case that there was no evidence upon which the Judge could assess the earning capacity at the time of the accident in the sort of sedentary occupation which is now open to him. However, there is the proviso, which requires that the loss shall, so far as possible, be assessed in accordance with the scale of percentages specified in the First Schedule. The appellant, not being totally paralysed or permanently bedridden and not suffering from permanent total disablement, cannot be entitled to demand an assessment on the basis of 100% loss of earning capacity. On the medical evidence it could be said that he has lost 50% of the use of the a leg above the knee in addition to the basic back injury. Actual loss of a leg above the knee is listed as 70% loss of earning capacity. Half that is 35%, which is the final loss of earning capacity agreed by the two experts. That figure does not, however, make any allowance for incapacity resulting from the basic back injury, which none of the witnesses sought to quantify. Making a generous allowance for that, one might possibly arrive on this basis at a total loss of earning capacity of 50%. 10. I would accordingly allow the appeal and substitute an award of $36,920. Leonard, J.A.: 11. I agree and have nothing to add. Cons, J.A.: 12. I agree that the appeal must be allowed and an award of 50% substituted for that made below. 13. With every respect to the learned Judge his assessment of 100% incapacity cannot be supported by the reasons he has given. Lack of formal education and a rural background do not in themselves alone make a person incapable of light sedentary work. They may restrict the field of opportunity, which would be a material consideration in a Common Law action for damages. Considerations of this kind, however, have no place in the arbitrary scheme provided by the Employees' Compensation Ordinance. Compensation under the scheme depends entirely upon the statutory provisions, which leave no room for Common Law principles of assessment of damages or, by the same taken, of mitigation of damage. 18th June 1981 Representation: Patrick S.O. Chan (Deacons) for Appellant. M. Bunting (D.L.A.) for Respondent. |
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