Tsui Lup-shing Peter v. Hong Kong Security Ltd

DCEC000105/1977

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 105 OF 1977

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Coram: A.L. Leathlean, D.J.

Date of Judgment: 4th March, 1978.

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DECISION

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1. The only issues which remain for me to resolve in this case are (i) the extent of the applicant's incapacity, and (ii) whether, upon the evidence, the claim under section 8 lies, and, if so, whether it is made out.

2. Dr. Cheung's opinion is that, while the applicant is unemployable on what I will call the open labour market, the chances are that in a year or so's time his condition may well have improved sufficiently to enable him to work in one of the so-called "shelter workshops" workshops" which, as I understand, cater for the physically handi-capped under the control of the Social Welfare Department. However, upon the evidence, it is uncertain whether, in the event of his condition improving sufficiently to enable him to work in such a place, there would be a vacancy for him. I am told that at the present time such vacancies are limited. I am also told that those presently working in such places can earn $100 per mensem. Dr. Cheung's further opinion is that the chances are that in about the same time the chances also are that the applicant's condition may well have improved sufficiently to enable him to dress, feed himself, etc., unaided, which he is unable to do at present, in which event he would no longer need the assistance to those ends which he presently does, and which is presently being afforded by his mother, who has given up going out to work upon that account. Dr. Cheung agrees, however, that even in that event it would still be advisable for there to be "someone around" to '"supervise" him.

3. Upon this evidence Mr. Munro for the respondent asks me to find that the extent of the applicant's incapacity is 90%, and following from that, to hold that, as a case of partial incapacity, the claim under section 8, which only lies in cases of permanent total incapacity, must fail. Mr. Woolley for the applicant asks me to find that in reality this is a case of permanent total incapacity and that a claim does lie under section 8. It is said that there is no authority either way upon these conflicting contentions.

4. I must observe that however reliable Dr. Cheung's opinion may be, there is no guarantee that the applicant's condition will have improved sufficiently in a year or so's time or at all to enable him to work in a "shelter workshop". As I say, even if it has, there is no guarantee that a vacancy would exist for him in such a place. And, even if there were, how long he could work there is an open question.

5. Whether incapacity is total is, of course, a question of fact. Despite what has been said about there being a dearth of authority, in John Denholm & Co., Ltd. v. Jackson⁽¹⁾ the House of Lords held that the receipt of a charitable weekly sum in the guise of wages for services rendered will not prevent a finding of total incapacity. Lord Shaw of Dunfermline said (at page 99):

"It is said, however, that the injured man does work. No doubt he does, but he does not work as a wage-earner in the ordinary sense, and the case of Ball v. Hunt decided by this House seems apt and in point".

In Ball v. Hunt⁽²⁾ Lord Loreburn, L.C., said (at page 462):

"In the ordinary and popular meaning which we are to attach to the language of this statute, I think that there is (total) incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him .........."

6. While work in one of the "shelter workshops", which, as I say, as I understand, cater for the physically handicapped under the control of the Social Welfare Department, at what can only be purely nominal wages of $100 or so per mensem, may not, strictly speaking, be charity, in my opinion it is at least so closely akin to it that work in such a place at such a wage cannot even by the longest stretch of the most fecund imagination be said to be the work of a wage-earner in the ordinary sense. In my judgment, even accepting everything which Dr. Cheung has said, this is a case of total incapacity, and, following from that, a claim under section 8 lies, provided, of course, that the applicant proves that he is unable to perform the essential actions of life without the constant attention of another person. His mother has given evidence to the effect that that is the position which presently obtains, and Dr. Cheung himself supports her in this. However, as I say, Dr. Cheung's opinion is that the chances are that in a year or so's time the chances are, or, to put it another way, the probability is, that his condition will have sufficiently improved to enable him to fend for himself in such matters as dressing and feeding himself.

7. Section 8 of the Ordinance, so far as relevant, provides as follows:

"8. (1) Where permanent total incapacity which results from the injury is of such a nature that the workman is unable to perform the essential actions of life, without the constant attention of another person, in addition to any compensation under other provisions of this Ordinance, such compensation as the Court considers necessary to meet the cost of such constant attention shall be payable under this section.

The evidence of the applicant's mother is of some assistance in this connection inasmuch as she was, prior to the misfortune which befell her son earning $1,000 per mensem as an old lady's companion, which affords at least some kind of basis upon which to assess the cost of the constant attention of which the applicant is presently in need and will probably continue to need for at least another year. In the circumstances I propose to award compensation under section 8 by way of periodical payments of $1,000 each payable at monthly intervals for the next year, there being, of course, liberty to apply under section 19.

8. I assess and award compensation as follows, therefore:

9. The awards under (a) and (c) and the first periodical payment under (b) are to be paid into court within fourteen days from the date hereof. There will be an order for payment out of the award under (b) in toto to the applicant forthwith upon each payment in. The question of payment out of the awards under (a) and (c) is adjourned to a date to be appointed by the Registrar, who is to arrange for the usual investigation and report by the Social Welfare Department. The costs of the application are to be the applicant's and are to be taxed under the Legal Aid Regulations on the Upper Scale.

10. Dated this fourth day of March, 1978.

Representation:

(1) (1926) XIX B.W.C.C. 92

(2) (1912) V B.W.C.C. 459; (1912) A.C. 496