Ali Shoukat v. Hang Seng Bank Ltd

DCEC000069/2002

DCEC69/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 69 OF 2002

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IN THE MATTER OF AN APPLICATION BETWEEN

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Coram: H.H. Judge Wong in Court

Date of Hearing: 9 December 2003

Date of Handing Down Reasons for Decision: 20 January 2004

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Reasons for Decision

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The Issue

1.In this application all matters save one are agreed i.e. the Statutory Interpretation of S. 10 (2) Cap. 282.

2.S. 10 (2) states "For the purposes of this section a period of absence from duty certified to be necessary by a medical practitioner, a registered Dentist, an ordinary Assessment Board or a special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury".

Background

3.The Applicant has been certified by a medical practitioner for a period of absence from duty exceeding 2 years following the accident.

4.The parties have commissioned expert medical reports. The Applicant's expert is of the view that sick leave for 13 months and 4 days is necessary while the Respondent's expert opined that 12 months' sick leave is necessary.

5.The Applicant was injured on 10 April 2000. He appeared before the Employees' Compensation (Ordinary Assessment) Board on 16 May 2001. The Board assessed that the period of absence from duty necessary as a result of injury was 13 months and the loss of earning capacity permanently caused by the injury was 3%.

6.He appeared before the Board of Review on 8 August 2001. The Review Board's finding as to the period of absence from duty necessary as a result of injury was 15 months and the loss of earning capacity permanently caused by the injury remained at 3%.

Did S. 10 (2) raise a rebuttable presumption or are definitive

7.Mr. Clement for the Applicant referred to S. 10 (5) which states:

"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 payments 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."

8.He submitted that in the event that the Respondent wishes to take issue with the Applicant's unfitness to work within the initial 24 months period, the cumulative effect of s.s. 16, 19 (3) and 20 is that the Respondent may have the Applicant medically examined and thereafter apply to court. There are no provisions allowing periodical payments made within 24 months to be ended, without Court Order, nor to allow for repayment of payments made. There is no application under S. 19.

9.Mr. Clement further submitted that unless measured against the context of the Ordinance to construe the phrase as "held conclusively" would result in a complete absurdity in forcing the Court to have found something to have happened when it positively known that precisely the opposite has happened, then the phrase should not be construed as raising a rebuttable presumption and there was no such absurdity in this case.

10.His case to put it simply is that the medical certificates were issued by a medical practitioner therefore under S. 10 (2) shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.

Interpretation of the word "deemed"

11.The interpretation of S. 10 (2) must be carried out having regard to the context of the Ordinance as a whole. The word "deemed" may provide for a rebuttable or an irrebuttable presumption. In Words and Phrases legally defined volume at p. 28 "Canada. The word "deemed" is capable of meaning "rebuttably presumed" that is presumed until the contrary is proved. Credit Fancier Franco-Canadian v. Bennett and AG (BC) (1963) 43 WWR 545 at 547 per Sheppard JA".

Is there evidence to rebut the presumption

(1) Medical Certificate

12.I agree with H.H. Judge Muttrie in L.v. Equal Opportunities Commission and Ors DECO 6/1999 at para. 74.

"If it is right, it means that the employer can look no further than the sick leave certificate. Section 16 is otiose. That cannot be right. Quite apart from that, in practice a sick leave certificate may be based on no great incapacity, depending on the attitude of the doctor, who may find it easier to issue the certificate and get an argumentative patient out of his surgery, than to go on listening to his complaints. It seems to me that the effect of subsections (2) and (6) is quite simply that where the employee has a sick leave certificate from a doctor, he is deemed to be totally incapacitated and so entitled to a flat four fifths of his monthly earnings; but this is a deeming provision rebuttable by medical evidence to the contrary. Certainly that is how it is treated in employee's compensation claims."

(2) Other Medical Opinions

13.Apart from the medical certificate relied on by the Applicant there are the following experts' opinions:-

(a)	Dr. Wong Kwok Shing Patrick
	He is the Applicant's own expert. He opined that the period of sick leave period should be up to the date of first medical assessment.
(b)	Dr. David H.F. Cheung opined that a period of 12 months is most reasonable.
(c)	First Medical Board assessed the necessary peirod of absence from duty is 13 months.
(d)	The Board of Review is of the opinion that the period of absence from duty necessary is 15 months.

14.There is ample other evidence from doctors and Medical Boards qualified under S. 10 (2) to rebut the presumption.

15.Both the Medical Assessment and the Review Boards have assessed the loss of earning capacity permanently caused by the injury at 3%. Since there is determination that the Applicant's injury is permanent so latest by 8 August 2001 the Applicant cannot be heard to say that he still suffered from temporary incapacity.

16.By reasons aforesaid I find that the Respondent has rebutted the presumption and I accept the Review Board's finding that the Applicant is entitled to only 15 months' sick leave.

17.Since the Applicant is not entitled, according to my finding, to more than 15 months' periodical payment it would be unjust and inequitable to retain what he is not entitled to, the Applicant is entitled to set off or to be reimbursed of the amount over paid and I so order.

18.Order nisi: Costs to the Respondent. Certificate for Counsel.

19.Applicant's own costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Mr. Clement of Messrs. Massie & Clement assigned by Director of Legal Aid for the Applicant.

Miss Joanna Molloy instructed by Messrs. Deacons for the Respondent.