Chung Chik v. Hip Fung
Read the full judgment text of DCEC 90/1972 on BabelCite. This District Court judgment was delivered on 16 January 1973.
1. In this case there was one short point to be decided, but like many a short point, it is easily stated, but not so easily determined.
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DCEC000090/1972 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION WORKMEN'S COMPENSATION CASE NO. 90 OF 1972 -----------------
----------------- Coram: W.S. Collier, D.J. Date of Judgment: 16 January 1973 ----------------- JUDGMENT ----------------- 1. In this case there was one short point to be decided, but like many a short point, it is easily stated, but not so easily determined. 2. It was common ground that the applicant, a man of 68 years of age, had suffered an accident at work, whereby he had suffered a disability. The sole question to be decided was: "Should the Court follow the decision of the Medical Board that incapacity was 60% or should the Court, following the words of section 9(1)(b) assess "the loss of earning capacity permanently caused by the injury" and arrive at a percentage greater than that suggested by the Medical Board"? 3. No assistance can be obtained from the English cases as no parallel to section 9 exists. In England, a Court may appoint its own medical examiner(s) if thought fit. 4. Before dealing with the question in issue, it is pertinent to observe that the Workmen's Compensation Ordinance contains no reference to a "Medical Board". Neither solicitor could assist as to why and by whom the applicant had been referred to a Medical Board. Since the "Medical Board" is not a creature of statute, I am satisfied that I am not bound to follow its assessment. 5. Had the facts of the case fallen within paragraph (a) of subsection (1) of section 9 then I would have been bound by the percentages stated in the First Schedule. With all due respect to the legislature, the arbitrary nature of the provisions of this Schedule border upon ridicule. By section 2, a clerical worker is a "workman". If he is right-handed, but loses his left arm at the elbow due to trapping it in the door of a large safe, he is entitled to compensation at the rate of an arbitrarily-decided 60% of his normal wages, although he is perfectly capable of carrying out his duties and thus earning full wages. If however, he loses his right forearm, he still only gets compensation based on 60% of his earnings, even though he cannot work at all, not being able to write with his left hand. There is no doubt that the Court is bound by paragraph (a). 6. For convenience section 9(1) reads as follows:
7. It was urged upon me by the solicitor for the respondent, that the percentage in the First Schedule should be imported as near as may be, into a calculation under paragraph (b). Apart from the fact that there is nothing in paragraph (b) to suggest that such was the intention of the Legislature the result of adopting that view would be that the amount of compensation would be decided, not by the Legislature (as in the case of paragraph (a) and the First Schedule) but by a "Medical Board", who assess according to "scales", and whose existence is not contemplated by the Ordinance. 8. In my judgment, this would be tantamount to transferring the functions of this Court to a Medical Board. 9. What section 9 provides is that
10. There is no mention of "percentage" per so in this provision and the balance is made between total incapacity and loss of earning capacity. It is unfortunate that the word "capacity" is here used in two different senses in the same sentence. Section 8 defines total incapacity by relation to physical capacity:
That definition is mirrored in paragraph (b) of section 9(1). In my judgment it was upon that definition that the "Medical Board" arrived at its decision of 60% incapacity : i.e. physical incapacity. 11. However, paragraph (b) of section 9(1) assesses compensation by the degree of loss of earning capacity, which is a different matter, as the facts of this case show. 12. There was no doubt in this case that the applicant had suffered spastic upper limbs, weakness of all four limbs, unsteady gait, slurring of speech and impairment of memory. No doubt, compared with the definition of total disability in section 8, to say that he is 60% disabled is a reasonable assessment, on a purely physical basis. 13. However, Dr. Y.T. Wan of the Neuro-surgical unit, Q.E.H. gave evidence to the effect that, if he were an employer, he would not employ the applicant in any capacity. Physically, he is capable only of light work: he is not to be left to work by himself by reason of his impairment of memory, because he may well forget what he is supposed to do. For the same reason he cannot be employed as a messenger or watchman concerned with admitting recognized persons to premises. He cannot be employed as a night-watchman during cold weather by reason of the results of a chest infection consequent upon the accident. Further, the spastic condition of his upper limbs means that he cannot be expected to assemble anything, except clumsily. 14. The result of that evidence is that the applicant is virtually unemployable and that his "earning capacity" has been reduced to zero and permanently so. 15. In my judgment he is entitled to 100% of the compensation according to calculations provided in the Ordinance; I assess and award compensation accordingly. It seems strange that this point has not arisen before, but the researches of solicitors and myself have not produced a previous case.
16 JAN 1973 Representation: Mr. Gordon Kim Sing (K. C. Yung & Co.) for Applicant. Mr. Oliver Mark (Peter Mark & Co.) for Respondent. |