Lau King Sun v. Chec-cwf Joint Venture

DCEC000238/2002

DCEC238/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 238 OF 2002

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Coram: Deputy Judge C Wong

Date: 16 July 2002

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R U L I N G

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1.This is the applicant's application under section 10(5) to continue periodical payments beyond the statutory 24 months.

2.Judgment on liability has been entered by consent in favour of the applicant. This is the adjourned hearing of the application under section 10(5).

3.This case arose out of an accident dated 31 May 2000. At approximately 3.00 pm in a construction site where the applicant was employed as a construction site worker foreman, he slipped and fell from a height of 3 metres. He landed on the surface of a pile of iron bars. The place where the applicant slipped and fell was about 1 foot from the edge of the I-beams platform.

4.As stated in the application, the plaintiff's sustained multiple abrasions, head, teeth and back trauma injuries, including injury affecting the lumbar region L4 to L5 and sciatica.

5.Under section 10(5) of the Employees' Compensation Ordinance, "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 payment 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".

6.The applicant applies today asking the court to exercise discretion in favour of the applicant to receive periodical payments beyond 24 months.

7.The issue before me, as set out by Ms Ng for the respondent, is essentially that from the medical reports by the Hospital Authority, there is a case of pre-existing injury as from the MRI examinations there are degenerations to the spine.

8.Ms Ng argues that since there is an issue as to the plaintiff's injury being a result of the accident or due to the degeneration, there is a real issue before the court which ought to be sorted out in trial, and the respondent should not be shut out from defending these issues.

9.I now refer to a letter by the respondent's solicitor setting out the grounds of objection. By a letter dated 11 June 2002, the respondent's solicitors states:

"We regret to say that we do not find your client's claim in the present case for periodical payments beyond the 24 month-period justified. We refer to the Medical Report dated 6 August 2001 prepared by Dr Chan Wai Shum of Tsing Yi Town Clinic. It states that when your client was examined a week after the accident, he was diagnosed to have suffered a loss of lumbar lordosis with anterior osteophytes at L4 and L5. There was no narrowing of disc spaces and no bony fracture. In simpler terms, your client suffered from soft tissue injuries of the neck and back only. We find it was difficult to perceive how a soft tissue injury without any bony fracture and neurological signs initially can result in so much pain on his back as complained by your client."

10.I now turn to a medical report by Dr Chan Kwai-yuen, the medical officer of SKCPC, dated 6 March 2002. In the report Dr Chan states in paragraph 2, after setting out the injuries:

"He reported that he had injury on duty on May 2000. Afterwards he experienced persistent pain over neck and back. Also he had paresthesia over upper limbs. Those symptoms could not be explained by physical findings, as reported by Orthopaedic doctor of Princess Margaret Hospital."

Then Dr Chan goes on:

"A diagnosis of Persistent Somatoform Pain disorder was made. The disorder was precipitated by the injury on duty."

11.From my reading of Dr Chan's report, notwithstanding there being degenerations to spine, there has been a diagnosis that the pain as suffered by the plaintiff was precipitated or, as I understand Dr Chan to mean, a pain being pushed forward or aggravated or triggered off by the injury on duty.

12.In Yan Chai Hospital's report dated 6 August 2001, paragraph 2:

"On examination, there was tenderness over his neck and back, and decreased range of movement but no neurological deficit found. X-ray showed degenerative change. His condition was treated conservatively. MRI was booked."

And in the next report dated 4 March 2002, X-ray, essentially MRI, "performed on 16 August 2001 revealed degenerated disc L3/4 and L4/5 with minimal bulge."

13.I have been shown a number of authorities in respect of section 10(5) by Ms Liu for the applicant. Those authorities are either distinguishable on their own facts or not particularly relevant to the present proceedings.

14.I have considered the case of Choi Wai-chung v Chun Wo Construction & Engineering Company Limited Civil Appeal No. 14 of 2000, dated 3 November 2000, in which the Court of Appeal had considered section 10(5). Before the Court of Appeal had come to their decision on section 10(5), the court took into account the purpose of legislation of section 10. At page of the judgment his Honour Rogers, VP referred to section 10(1):

"Compensation under section 10 is in respect of temporary incapacity. The relevant part of section 10(1) reads, 'Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned or a lump sum calculated accordingly having regard to the probable duration and probable changes in the degree of the incapacity.'"

His Lordship continued by stating:

"For the purpose of identifying the mischief which gave rise to the introduction of compensation in the case of temporary incapacity under section 10, our attention has been drawn to statements made when the Workmen's Compensation (Amendment) Bill was introduced in 1969. On the second reading Mr Hetherington, who at the time was the Commissioner of Labour said, amongst other things, 'It has been found that under present legislation a workman whose injuries have involved fairly lengthy but successful treatment and whose permanent incapacity is assessed by the low grade may have received by way of periodical payments during treatment, an amount which has absorbed most or all of the compensation ultimately assessed. So, the workman leaves hospital with a significant disability but little, if any, cash. Clause 10(b) inserts a new subsection whereby compensation by way of periodical payments for temporary incapacity shall not be deductible from any lump sum payable for permanent incapacity or, where it occurs, subsequent death.'"

Then the judge continued to consider section 10(2) at page 5 in considering whether the periodical payments should be extended. The learned judge stated:

"The judge below construed the discretion in a court to allow an extension of the period of temporary incapacity as being 'intended to cover the situation where it is not known at the end two years whether or not the loss of earning capacity will be permanent. If there is a chance that it will not be, the court may extend the period. Once it is known that the loss of earning capacity is permanent. It is difficult to see why the period should be extended.'"

The learned vice-president continued:

"In my view, in so construing section 10(5) the judge below limited the discretion of the court in a manner not intended by the legislature. As has already been indicated, the mischief sought to be cured by the introduction of the provision of section 10 was to alleviate the problem which would be caused when an employee suffered a period of temporary incapacity followed by a period of permanent partial incapacity, which would result in his not receiving adequate compensation for the period when he was temporarily incapacitated.

In those circumstances it appears to me that the discretion in the court below was exercised on a wrong footing. Taking into account the medical certificates which had been produced, it seems to me to be fair in all the circumstances that Mr Choi should receive compensation for temporary incapacity for the full three year period possible."

15.Having considered the medical evidence before me, I have come to the view that there is a case for the applicant to be eligible for the continuance of a payment for the periodical payment beyond the 24 months. On the contrary, there is insufficient material before me to make out a case of pre-existing injury.

16.There is no detailed medical report produced by the respondent on the issue of pre-existing injury. From my reading of the hospital medical reports, in particular Dr Chan Kwai-yuen's report, I am satisfied that I should exercise my discretion to extend the period of periodical payments beyond that statutory 24 months but not more than 12 months upon the plaintiff producing medical certificates.

17.I would further order that costs of today's application be to the plaintiff in any event and the plaintiff's own costs be taxed in accordance with Legal Aid regulations.

Representation: