Gammon Kier Lilley Joint Venture v. Wong Tat Keung
Read the full judgment text of CACV 6/1981 on BabelCite. This Court of Appeal judgment.
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 $
|
CACV000006/1981
----------------- Coram: Leonard, J.A., Silke and Barker, JJ. Date of Judgment: 14th April, 1981. ----------------- JUDGMENT ----------------- 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:
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:
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:
8. We do not consider that, to use the phrase of the Appellant's counsel, section 21(1) justifies the Court in using such major surgery on section 49(1). 9. It is to be observed that section 21(1) only comes into operation "upon or in connexion with any question to be investigated or determined thereunder", that is under the Employees' Compensation Ordinance. But that Ordinance makes no reference to interest, and therefore the question of whether interest is payable on a compensation award does not arise under that Ordinance. In other words, section 21(1) does not begin to bite. 10. But there is another and more fundamental objection to the Respondent's contention. Section 21(1) conferred on the District Court the general right to exercise all the powers and jurisdiction in or in connection with civil actions in such Court as if the District Court had by the District Court Ordinance been empowered to determine all claims for compensation under the Employees' Ordinance. What this means in our judgment is that the District Court in Workmen's Compensation cases has all the powers which it has in District Court cases but no more, and its power to award interest in such cases is limited to proceedings for the recovery of debt or damages. There is no magic in the words "mutatis mutandis". All these mean is making the necessary changes in the District Court Ordinance in points of detail. 11. In our judgment, the District Court (or for that matter any Court) has no power to order interest on an award of Workmen's Compensation. 12. Two cases were cited to us in which the Court of Appeal had ordered interest on such an award, namely LAU Woon v. Kum Shing Construction Co. Civil Appeal 1979 No. 63 and NG Oi-wa v. Lamp's Co. Civil Appeal 1980 No. 129. In each of these cases it was assumed that the Court had power to award interest and the point of jurisdiction was never argued. These decisions were, in our view, given per incuriam are not binding on us, and we decline to follow them. 13. We make one final observation - Although an award of compensation is a statutory right, it has many of the hall-marks of a claim for damages for personal injuries, in which kind of claim a Court has not merely the right, but (in the absence of special circumstances) a duty to award interest. In these circumstances, the Legislature may well think that the time has come to amend the Employees' Ordinance to endow the Courts with the power to award interest which, as we have found, it does not now possess. Representation: J.J. Swaine, Q.C. and N. Pirie (Munro & Co.) for appellant H. Litton, Q.C. and M. Bunting (Director of Legal Aid) for Respondent
----------------- Coram : Leonard, J.A., Silke and Barker, JJ. Date of Judgment: 14th April 1981 ----------------- JUDGMENT ----------------- Silke J. : 14. I am in entire agreement and would simply add my voice to the plea for legislative consideration to the empowering of the Court in these compensation cases to grant interest. 15. As was said by the English Court of Appeal in TEHNO-IMPEX V. GEBR VAN WEELDE SCHEEPVAARTKANTOOR BV. - The Times 16th March 1981 - "modern conditions with radical changes in the value of money require an urgent re-appraisal of the Common Law Rule on interest". A first step might well be made in this particular legislation - and soon.
|