Leung Kam-mum v. Freedom Weaving & Dyeing Factory Ltd (in Receivership)

DCEC000150/1973

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 150 OF 1973

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Coram: Judge O'Connor in Court.

Date of Judgment: 4 January 1974.

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JUDGMENT

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1. The applicant has given evidence, which is undisputed, and which I accept as establishing that on 10th July 1973, while he was a workman employed by the respondent, he suffered personal injury by accident arising out of and in the course of his employ-ment. He suffered injury to his right hand, and as a result there is amputation of index, ring and little finger of his right hand and of the terminal phalanx of the middle finger of the same hand.

2. He has now obtained employment under Government at $510.00 a month as a cleaner and odd job man. He was obviously employed under Government's policy of giving suitable employment to handicapped persons, and as such has for practical purposes security in his job. I find he is not permanently totally incapacitated, but is permanently partially incapacitated.

3. The points remaining for decision are the figure for his earnings upon which compensation is to be assessed and further whether his injury is a scheduled injury and to be assessed under S.9(1)(a) or a non-scheduled injury to be assessed under S.9(1)(b).

4. His application as finally amended gave his wages at the time of the accident as $900.00 plus $90.00 being value of food allowance. It is clear on the evidence that these figures are too high. It appears that his earnings including meal allowance, varied according to the number of days worked, and that in months closely preceding the accident he had basic earnings including meal allowance, varying from about $770.00 a month to $880.00 a month. However there had been a wage increase payable from the 1st June, which to some extent accounts for the lower figures in the earlier months. In addition to these amounts he also got a recurrent monthly payment which varied in amount these payments, arising from the sale of what appears to be 'seconds'. It appears that this sum was paid with the employer's approval and is properly to be considered as part of his earnings. Taking one thing with another I find his monthly earning were $900.00.

5. As I have said, the applicant suffered amputation of his right index, ring and little fingers together with the terminal phalanx of the middle finger. This finger is in a more or less rigid position with a right angle flexion at the proximal phalangeal joint. It has very little movement.

6. Mr. Wedderburn, a surgeon gave evidence, part of which took the form of a written report, prepared by him a week prior to his oral evidence and based on an examination of the applicant some three months previously. In the report he stated the applicant 'gets no use from the middle finger' and again 'he has no use of the middle finger which gets in his way and is an impediment'.

7. In oral evidence he said that the middle finger is 'virtually useless' and again 'he would be better with the middle phalanx removed but the improvement would be so marginal that I do not think a surgeon would recommend it. As it is now the middle finger is more of an impediment than a help, as it gets in his way. However I do not think the benefit would be sufficient to put him through the mental trauma etc. of amputation'.

8. While the surgeon was giving evidence the applicant de-monstrated the movement he had and the use to which he could put the hand and finger. The surgeon (who had last seen it in early September) then qualified his evidence to some extent, and said that the middle finger as it now is can be used as a steadying force and the middle phalanx has some movement but is virtually useless. He said that from the point of view of his present work he does not think that the presence or amputation of the middle phalanx would make much difference.

9. The applicant gave evidence and demonstrated his injury and what use he gets from the injured member including how useful it is in his work. He says he does not use the middle finger except sometimes to steady objects and that it has no strength.

10. From seeing the hand and applicant's demonstration and bearing in mind the evidence of Mr. Wedderburn and the certificate of the Medical Board, I find that the finger appears to be of little or no assistance to applicant in the work he can perform. It appears to me, that to a considerable degree the finger gets in his way due to its rigidity. To a minimal extent it can be used as a steadying force but from a practical point of view it is really an appendage that is akward and unhelpful. The remains of the hand including the thumb are of use to him.

11. The first schedule to the Ordinance says that total permanent loss of the use of a member shall be treated as loss of such member. I consider that 'loss of the use of' does not mean loss for all purposes but rather means loss for the purposes of earning a living. The New Zealand Courts interpreting legislation somewhat similar to ours have held that loss for this purpose must be con-sidered in relation to its effect on the earning capacity of the worker.

12. I quote from -

13. Grace v. Auckland Gas Co., Ltd. (1913) 15 G.L.R. 442 which report is not in the Colony but the case is referred to at length and approved of in -

14. Boys v. Smyth 1933 N.Z.L.R. 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 - Ball v. Hunt & Sons (1912) A.C. 496. In the case of the injuries specified in the schedule to 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."

15. I respectively adopt that passage as being the proper approach to adopt in considering the provision of the First Schedule in Cap. 282 which provides 'Total permanent loss of the use of a member shall be treated s loss of such member'.

16. I consider that for the purposes of earning a living the middle finger is of no significant use to applicant. Accordingly I find that his injury falls within S.9(1)(a) of the Ordinance as it is to be treated as the loss of the index, second middle ring and little fingers. That is 40% incapacity. There is no other injury resulting in incapacity and accordingly nothing to give rise to a claim under S.9(1)(b).

17. It is agreed that there was tenporary total incapacity for the period of 15th July 1973 until 17th September 1973 both inclusive. Accordingly compensation is assessed as follows:

of which there has been a payment on account of $760.00.

18. Judgment for applicant for $17,820.00.

Representation:

T.L. von Pokorny, Deputy Director of Legal Aid for Applicant.

Robert TANG instructed by (Ford, Kwan & Co.) for Respondent.