Chu Yuet-siu v. Chinese Restaurant Ltd

DCEC000078/1976

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 78 OF 1976

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Coram: N.B. Hooper, D.J.

Date of Judgment:

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JUDGMENT

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1. In this case the applicant claims workmen's compensation under the Workmen's Compensation Ordinance Cap. 282 sections 9 and 10, in respect of injuries she received on the 13th September, 1975, when she was working as a casual worker for the respondent. It is common ground that she was employed by the respondent for one month immediately before The Mid-Autumn Festival to make moon cakes. She had worked continuously for the respondent for 28 days when the accident occured. It is common ground that she slipped while fetching basins on the 2nd floor and that her hand was cut by glass. Liability is not disputed. The applicant has been put to strict proof of the degree of permanent disability alleged to have been suffered by her and also that the 252 days sick leave claimed by her were taken by her in accordance with advice recommended by a medical practitioner as necessitated by the alleged injuries.

2. The calculation of the respective awards due under sections 9 and 10 will, of course, of necessity require to be based upon her monthly earnings. In her Application, before it was amended at the hearing, the applicant claimed that her earnings were $25 per day. This was admitted by the respondent in his Grounds of Opposition. However, at the hearing the applicant amended her Application to include in addition to the sum of $25 per day, an additional sum of $12 per day in respect of the monetary equivalent of three free meals per day. This led to the respondent amending his grounds of opposition to deny para. (4) (7) of the Application and therefore the earnings of the applicant. The applicant was therefore bound to prove her monthly earnings.

3. Her monthly earnings should be calculated in accordance with section 11 of the Ordinance.

4. The words "any less period during which he has been in the employment of the same employer" mean exactly what they say, and it would appear, from the decisions of the courts in England construing similar provisions in the British Workmen's Compensation Acts in the past, that a period as short as one week would be sufficient to determine the "average weekly earnings." The test as to when one should adopt the formula set out in subsection (2) above, is one of practicability. Whether it is practicable to compute the rate of remuneration is a question of fact.

5. There can be no doubt on the facts in the present case that the applicant was paid $25 per day plus three free meals. The applicant's own assessment of the value of those three meals at $10 has not been challenged by the defence. It is therefore certain that her daily earnings were the equivalent of $35 altogether. The question of practicability has not been argued before me, the only argument being as to whether the court should adopt a multiplier of 30 or 28 to ascertain the applicant's monthly earnings. The only evidence before me in this case has come from the applicant who said that she was working there for only one month and then she would take up her previous work as a construction worker. During the month she hadn't taken a holiday and was not going to take a holiday at all. This evidence was not challenged at all, and I believed her. It is therefore in my judgment practicable to assess her monthly earnings on the basis that she was employed to work for the respondent for only one month at the rate of $35 per day. I can see no reason for adopting a multiplier of 28 only, which would have the effect of showing her earnings for the month she was to work at less than the real figure. In my view the multiplier of 30 days suggested by Mr. North is a much fairer figure. I am of the opinion that it is practicable in the present case to ascertain the applicant's monthly earnings by multiplying the figure of $35 per day by 30, which works out at $1,050.

6. Turning to the matter of sick leave, there is a certificate before the court admitted by consent (Ex. A2) dated the 22nd of May 1976 in which the period of sick leave is indicated as being from 13th of September, 1975 to the 22nd of May, 1976. This certificate, which has been signed by three medical practitioners, has not been challenged at all, but Mr. Lau has argued in effect that because the applicant has said her hand was useless from the day of the accident, then the period of sick leave would not have served any useful purpose at all. He submits therefore that as sick leave should be given in cases of temporary disability only, no award should be made since the disability was final from the word go.

7. I can see nothing against a workman being awarded compensation under sections 9 and 10 in a case of this sort. Obviously in every case where injuries are serious the worker should be given a period of sick leave to recover from his injuries and to ascertain the full extent of his injuries. Although in the present case the period of 253 days seems rather a lengthy period, I am bound by the provisions of section 10(2) which provides :

"For the purposes of this section a period of absence from duty certified to be necessary by a medical practitioner shall be deemed to be a period of total temporary incapacity inrespective of the outcome of the injury."

8. The certificate Ex. A2 has been signed by three doctors and although the certificate in relation to sick leave has been recorded under the heading "comments" in the briefest term as :

"S.L.(13/9/75 - 22/5/76)"

I take judicial notice of the fact that this is the endorsement used by the doctors to certify the necessary period of sick leave. I rule therefore that the applicant is entitled to compensation under section 10 for a period of 253 days.

9. So far as permanent incapacity is concerned I have before me the same certificate Ex. A2 which includes also an assessment by the Medical Board signed by the three doctors indicating that the incapacity is "about 80% functional loss of right hand and wrist" and assessing the permanent incapacity as 40%. There is also in evidence by consent a report from Mr. Wedderburn, a surgeon, giving his opinion that there is an 86% Impairment of the arm. This is based on the fact that according to Mr. Wedderburn, the applicant's right hand is virtually useless. The loss of the Median nerve sensation and function is a 61% Impairment of the arm and the partial loss of the Ulnar is a 15% Impairment of the arm, taking both muscle function and sensation into account. The loss of the Flexor and Extensor tendon activity is a further 10%, making a total of 86% Impairment of the arm. This he concludes is a 50% Impairment of the "Whole Man (Woman)". He forms the view that "she will be incapable of performing any form of work and has lost her source of income".

10. Mr. North for the applicant has argued that since she is incapable of work and since the injury does not precisely fall within any of the items of injury set out in the First Schedule, compensation should be assessed under section 9(1)(b) as an injury not specified in the First Schedule, and should be assessed as 100% permanent disability.

11. Mr. Lau on the other hand submits that in view of the assessment of the Medical Board and also Mr. Wedderburn's assessment, the permanent disability should be assessed at 50%.

12. Similar considerations arose in the case of K.D.C. Workmen's Compensation Case No. 150/73 LEUNG Kam-mun v. Freedom Weaving and Dyeing Factory Ltd. where Judge O'Connor quoted a dictum from the case of Grace v. Auckland Gas Co. Ltd. (1913) 15 G.L.R. 442 which dictum was referred to and approved in the case of Boys v. Smyth (1933) N.Z.R. p.1427:

"In our opinion the loss must be considered in relation to its effect on the earning capacity of the worker. The general rule to be applied in construing the Workmen's Compensation Act is that the injury for which compensation is given is not mutilation or disfigurement or loss of physical power, but loss or diminution of capacity to earn wages in the employment in which the injured worker was employed at the time of the accident - Fall v. Hunt & Son (1912 A.C. 496. In the case of injuries specified in the Schedule of the Act the Legislature has said, in effect that these injuries must be presumed conclusively to have affected the earning capacity of the injured worker to the extent therein specified and the worker is entitled to the specified compensation though his earning capacity may not have been diminished at all. In construing the schedule, however, the general rule ought to be applied as far as possible. 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 earning 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."

13. I respectfully agree with Judge O'Connor that this passage should be adopted in considering the provisions of the First Schedule in Cap. 282 which provides "total permanent loss of the use of a member shall be treated as loss of such member".

14. I consider that for the purpose of earning a living the applicant's right hand and wrist and forearm is of no use to her and that her injury falls within section 9(1)(a) of the Ordinance and is to be treated as loss of the right arm between the wrist and the elbow. That is 50%. As in LEUNG Kam-mun's case there being no other resulting incapacity, there is nothing therefore to give rise to a claim under section 9(1)(b).

15. I am naturally reluctant to reach this conclusion, bearing in mind that the applicant's injuries make her virtually unemployable. The arbitrary nature of the percentages set out in the First Schedule have been criticised in the past (see V.D.C. W.C.C. Case No. 90 of 1972 CHUNG Chik v. Hip Fung where Judge Collier compared the loss of a right arm of a right-handed clerical worker, to the loss of the right arm of a left-handed clerical worker.) Just as these arbitrary percentages will sometimes enable a workman to bring a claim, even though the workmen's earning capacity has not been diminished at all, so, on the other side of the coin, the effect must be that in some cases the workman could not be fully compensated for the actual loss of earning capacity which he has suffered. A similar view has been expressed by Judge Bewley in K.D.C. W.C.C. No. 62/74 CHAN Shek-wah and Wall Unit Corp. Ltd. (1973 D.C.L.R. 112 at p.116). I am bound to construe the Workmen's Compensation Ordinance in accordance with the provisions of section 19 of the Interpretation and General Clauses Ordinance. To adopt Mr. North's argument that the applicant should get 100% compensation would not be giving effect to the "true intent meaning and spirit" of this particular Ordinance. It would mean that a person who lost her arm completely between the elbow and the wrist would only get 50%, whereas a person such as the applicant who does not lose her arm between the elbow and the wrist, but merely loses the use of it for the purpose of earning a living, would get 100%. I think it is desirable that consideration should be given to amending the Ordinance.

16. Judgment for the applicant for $31,103.33.

Representation: