Yip Kwai v. Chung Leung

Case No.CACV 47/1978

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACV000047/1978

IN THE COURT OF APPEAL	1978 No. 47
	(Civil)

BETWEEN:
	YIP KWAI also known as YIP LAM KWAI	Appellant
	and
	CHUNG LEUNG	Respondent

Coram: Briggs, C.J., McMullin & Leonard, JJ.

Date of Judgment: 3rd October, 1978.

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JUDGMENT

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1. The appellant, a coolie, was injured while working on February 2nd, 1977. He was incapacitated from work for two months. He claimed workmen's compensation from the respondent whom he alleges was his employer at the time of the accident.

2. The respondent denied, both in the District Court and before this court, that he was the employer of the appellant. His case is that the two of them are fellow members in the same coolie gang.

3. The appellant brought proceedings against the respondent in the Labour Tribunal under section 8A of the Employment Ordinance. He claimed a month's wages because the respondent had wrongfully dismissed him as a result of the accident which resulted in his injury. The Tribunal found in the appellant's favour and awarded $1,578 which was a month's wages.

4. At the close of the appeal we adjourned this case in order to consult the file of those proceedings in the Labour Tribunal. That file clearly shows that the relationship of employer and employee existed between the parties at the time of the accident: the appellant being the employee and the respondent the employer.

5. In the District Court, the Judge awarded the appellant $1,052. He found that the monthly earnings of the appellant were $1,578 per month for the purposes of sections 10 and 11 of the Workmen's Compensation Ordinance (Cap.282). In this, he agreed with the finding of the Labour Tribunal.

6. However, he awarded the sum he did because he considered it necessary to deduct from his award the amount of compensation that the appellant had been awarded by the Labour Tribunal. The period of "temporary capacity" under section 10 of the Workmen's Compensation Ordinance was two months. The appellant had received one month's pay and so the District Court awarded him two-thirds of the second month's pay, i.e. $1,052 in accordance with that section of the Ordinance.

7. In making that award the District Court relied on section 10(6) of the Ordinance which reads as follows:-

"10. (6) In fixing the amount of the periodical payment, the Court shall have regard to any payment, allowance or benefit which the workman may receive from the employer during the incapacity."

8. Our attention was drawn to the case of McDermott v. Owners of s.s. TINTORETTO⁽¹⁾, a case in the House of Lords decided under the Workmen's Compensation Act 1906, which contains a section in the exact words of section 10(6) of the Ordinance which is quoted above.

9. The following is part of the headnote of that case:-

"	A seaman on a voyage abroad was rendered totally incapable by an accidental injury and was placed in a foreign hospital. The shipowners, in accordance with their obligations under the Merchant Shipping Acts, paid him eight days' wages for the interim between the accident and his discharge, also his medical and surgical expenses in the hospital, and made provision for his maintenance and return to England:-
	HELD, that in fixing the amount of the weekly payment under the Workmen's Compensation Act, 1906, in respect of his continued incapacity in England regard must not be had to the payment of the eight days' wages or of the maintenance and other expenses."

10. In giving judgment, Lord Loreburn, L.C., said this:-

"It is not every payment, allowance, or benefit which the workman may receive from the employer during the period of his incapacity that the county court judge must have regard to. It is only such as are received in respect of the incapacity, and received in respect of that period of it which is covered by the compensation."

11. And Lord Shaw of Dunfermline had this to say:-

"If the words 'payment, allowance, or benefit' are looked at by themselves they do undoubtedly cover the payment of debt. I desire to examine this. If the employer owed to his workman a debt of, say, £100, and were to pay that debt after the injury but before the assessment of damage, it would, I presume, be maintained that, a 'payment' having been made the judge, in striking compensation due to the workman in respect of his injuries, must have regard to this payment in the sense that he must make a deduction from the compensation, or possibly wipe the compensation out. The words, or rather the individual word, of the Act could be appealed to to justify this proceeding. Upon which I observe that I reckon it to be quite unsound, and to be productive of wrong and mischief, to interpret a remedial statute in the spirit of meticulous literalism."

12. Following the reasoning in that case it is clear that the District Court was wrong to make the deduction of the sum awarded for wrongful dismissal. That sum was not received by the appellant, in the words of Lord Loreburn "in respect of the incapacity".

13. The appeal must be allowed. The award will be increased to $2,104. The appellant is to have his costs; the costs of the appellant to be taxed in accordance with the Legal Aid Regulations.

	(Geoffrey Briggs)
	President.

Representation:

W. Yeung (Helen A. Lo & Co.) for appellant

Respondent in person

(1) (1911) A.C. 35