Chan Shek-wah v. Wall Unit Corporation Ltd

DCEC000062/1974

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 62 OF 1974

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In the matter of an Application between:

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Coram: E. de B. Bewley, D.J.

Date of Judgment: 13 June 1975.

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JUDGMENT

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1. Respondent does not dispute liability or the nature of applicant's injuries as revealed by the medical evidence. I am required to determine firstly applicant's pre-accident earnings and secondly to assess awards under s.9 and s.10 of the Workmen's Compensation Ordinance.

2. Applicant gave evidence that he was engaged by respondents as head carpenter at an inclusive monthly salary of $1,800.00 plus $200.00 travelling allowance. He frequently worked overtime but received no additional allowance in respect of this work. He took no holidays during the time he worked for respondents except for three days at Chinese New Year. No evidence was called by respondents to contradict applicant and in these circumstances I accept the figure of $1,800.00 per month. Counsel for respondent argues that para.4(7) of the application states applicant's earnings as $60.00 per day. Applicant was however acting in person when the application was completed in the Court registry. Furthermore if applicant's evidence is true $60 per day is a correct statement of his earnings.

3. Dealing next with the award under s.10, applicant's sick leave is not disputed and the calculation will therefore be $1,800.00 x 244/30 x 2/3 = $9,760.00.

4. If applicant's injury is found to be one of those specified in 1st schedule to the Ordinance, he is entitled under s.9(1)(a) to such percentage of the compensation which would have been payable in the case of permanent total incapacity as is specified therein as being the percentage of the loss of earning capacity caused by that injury. If the injury is not so specified the award under s.9(1)(b) will be proportionate to his loss of earning capacity subject to a maximum of $60,000.00.

5. Mr. Longley, for applicant, urges me to award the maximum amount, $60,000.00, on the grounds that applicant can never be a carpenter again and will be reduced to the most humble work if in-deed he can find a job. Mr. Rose on the other hand has referred me to the judgment of O'Connor, D.J. in LEUNG Kam-mum v. Freedom Weaving & Dyeing Factory Ltd. W.C.C. No.150 of 1973. In that case the learned judge referred to two New Zealand Workmen's compensation cases and found that the injury that he had to consider fell within the schedule and was subject to an award under s.9(1)(a). Mr. Rose submits that applicant is entitled to an award under items 12, 13 or 14 of the schedule and that the maximum sum that I may award is $43,200.00.

6. Applicant was injured by an electric saw and his right hand was severely lacerated. He has had two operations but, following irreparable nerve and tendon damage, his hand is almost useless. He is unfortunately right-handed. There has been no amputation of any part of his hand or fingers but his hand is paralysed in a grip position, movement of his fingers in any direction is impossible and there is practically no feeling in his fingers or palm. There is however sensation and a degree of flexion in his thumb. He can press his thumb against 1st and 2nd fingers but not against the other fingers. The hand may now really only be used as a steadying force, e.g. for a rice bowl, though Dr. Wedderburn considered applicant could open a drawer if it had a good handle and might be able to use a broom. In August, 1974, he was able to write crude characters very slowly by gripping the pen awkwardly between thumb and forefinger but since then he has had another operation and there has been some deterioration in his condition. Because the thumb has not been used, its power has been reduced to 60% but this could be re-established at almost 100% if necessary.

7. It is incontestable that applicant's injury is compensable under items 12, 13 or 14 of the schedule but the question is whether, in these circumstances, applicant is limited to the compensation specified in the schedule or whether Court may make an award under s.9(1)(b) in substitution for, or in addition to, one under S.9(1)(a). Section 9(2) provides for the aggregation of compensation payable under the section in the event of more than one injury but this does not help applicant as he has not suffered an unscheduled injury. No assistance is to be found in the Ordinance nor, since there is no equivalent provision in the English legislation, in the English authorities. And not a great deal of assistance, so far as this point is concerned, is to be found in LEUNG Kam-mum's case. In New South Wales prior to 1964 a worker could elect to accept benefits under s.16 of the Workmen's Compensation Act, 1926, which specified amounts payable for the loss of various members. In 1964, an amendment to s.16 removed the election provision and enabled a worker to receive the amount prescribed in the table for the loss of the member in addition to any other compensation prescribed by the Act.

8. In New Zealand s.17 of the 1956 Act also provides for compensation for injuries specified in a schedule but added a new sub-section borrowed from the Workmen's Compensation Act, 1951, of Victoria. This sub-section states:

"Where the worker suffers an injury for which compensation would, but for this sub-section, be payable under the forgoing provisions of this section, and it appears to the Court -

The Court may award compensation calculated as provided in the forgoing provisions of this Act as if subsections 1 to 6 of this section did not apply."

9. In effect this subsection permits the Court in certain circumstances, to make an order for payment on a loss of earnings basis under sections 13 or 14 of the Act.

10. Of course in many, perhaps most, cases an award under the schedule will be higher than an award under s.9(1)(b) of the Hong Kong Ordinance but where, as in the present case, the worker faces a substantial loss of earnings the reverse may be true. It seems, on the face of it, unjust that a worker should be limited to a fixed sum. The Australian and New Zealand legislation and the amendments thereto impel me, however, to the view that, in the absence of specific legislative provision to the contrary, a worker whose injury appears in the schedule is entitled only to the amount specified therein. I hold therefore that applicant is entitled to compensation under s.9(1)(a).

11. 1st schedule to the Ordinance provides that total permanent loss of the use of a member shall be treated as loss of such member. I respectfully agree with O'Connor D.J. in the case cited that 'loss of the use of' does not mean loss for all purposes but, rather, loss for the purposes of earning a living. In that case there had been amputation of three fingers and the terminal phalanx of the remaining finger. The question was whether there had been a 'loss' of the finger which had been reduced to a useless stump and the Court held that the answer was 'yes'. There can be no doubt that in the instant case applicant has lost the use of all four fingers qua fingers, but I have to decide whether they, when combined with the thumb, form a unit that will enable him to earn a living, or whether he has effectively lost the use of his whole hand for such a purpose.

12. Applicant's hand is useful only as a fulcrum but it could be said that this is better than no hand at all and that it would be useful to him in employment such as a cleaner or sweeper. But it must be borne in mind that applicant is a carpenter by trade. In the judgments in Ball v. Hunt & Sons Ltd. 1912 A.C.496 the phrase 'suitable work' recurs, and Lord MacNaughtan said (at p.501) -

"It seems to me that the injury for which the statute gives compensation is not amputation or disfigurement or loss of physical power, but loss or diminution of the capacity to earn wages in the employment in which the injured workman was engaged at the time of the accident."

That was a case that concerned the inability of a workman to get work, as a result of losing an eye, rather than his inability to do work. This applicant is in a similar situation since, even if he is able to do humble work, he is likely to have the greatest difficulty in obtaining it.

13. Again in one of the New Zealand cases quoted by Judge O'Connor - Grace v. Auckland Gas Co.,Ltd. 1913 15 G.L.R.442, it was stated -

"If therefore a worker has lost the sight of an eye to such an extent that it is quite useless to him for the purpose of carning a living in the occupation in which he was engaged at the date of the accident, or in any other occupation which is reasonably open to him, then, for the purposes of the Schedule, he must be treated as having lost the use of that eye, although for some other purposes it may be of some slight use to him."

14. Finally s.16(5) of the New South Wales Workmen's Compensation Act 1926 provides that the expression 'loss of' includes the 'permanent loss of the efficient use of'.

15. In the light of applicant's past occupation and the above authorities, applicant has, for the purposes of compensation, effectively lost the use of his hand at the wrist. In accordance with item 12 of the schedule his percentage of loss of earning capacity is 50%, which entitles him to compensation under s.9(1)(a) in the sum of $1,800 x 48 x 50/100 = $43,200.00. Compensation is assessed and awarded to applicant in the sum of $52,960.00 with costs on the upper scale, which are to be taxed under the Legal Aid Regulations.

Representation: