Tsang Lin v. Tong Ling Shipping and Enterprises Co Ltd
Read the full judgment text of DCEC 17/1983 on BabelCite. This District Court judgment.
2. The Respondent admits liabilities but disputes the entitlement to the amounts claimed. Not in dispute is that the Applicant was at the time of the accident and at all the relevant times in the employ of the Respondent as a seaman on board the "Prosperity Sea" and that he was hit on the right side of his head above his ear by a hawser and sustained injuries in the neck. The Respondent further admits that the accident arose out of and in the course of the employment. Nor it is in dispute that t
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DCEC000017/1983 Compensation for partial permanent incapacity should be assessed not according to the percentage of physical impairment or functional impairment based on medical evidence but the extent of loss of earning capacity in respect of an injury not specified under the First Schedule to the Employee Compensation Ordinance albeit it should, as far as possible, be assessed in conformity with the scale of percentages specified in the Schedule. Total loss of earnings at 45% assessed in respect of an unspecified incapacity at the right neck for a seaman who has sustained subluxation of right neck affecting seriously right arm and mildly right leg being unable to do heavy work or work requiring turning the head. Equated with ankylosis of shoulder joint half-way between" in worst position" at 55% and "in optimum position" at 35%. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION EMPLOYEES' COMPENSATION CASE NO. 17 OF 1983 ---------------------- In the matter of an application between:
---------------------- Coram: H.H. Judge E. Li in Court. Date: 5th July, 1983. ------------------------------------- REASONS FOR DECISION ------------------------------------- This is a claim for $182,496 as employee compensation under section 7 of the Employees Compensation Ordinance in respect of total incapacity and for $45,624 as periodical payment for temporary incapacity under section 10. 2.The Respondent admits liabilities but disputes the entitlement to the amounts claimed. Not in dispute is that the Applicant was at the time of the accident and at all the relevant times in the employ of the Respondent as a seaman on board the "Prosperity Sea" and that he was hit on the right side of his head above his ear by a hawser and sustained injuries in the neck. The Respondent further admits that the accident arose out of and in the course of the employment. Nor it is in dispute that the Applicant was then earning $3,802 a month. 3.Counsel for the Respondent contends that the Applicant is entitled to only 10% of what he claims under section 9(1)(b)(ii) on the ground that his physical impairment has been assessed at 10% of total incapacity as it is not open to the Court to assess loss of earning capacity beyond physical impairment or functional impairment. Mr. Pirie further contends that the principle in Ball's case and Bywater's case (which I shall later allude) have no application to Hong Kong as compensation is quantified under the First Schedule to the Employees' Compensation ordinance and "incapacity for work" is not found in Cap. 282 as it was in the equivalent statute in England. 4.The parties have agreed that compensation under section 10 shall be $20,678 and that as the Respondent had already paid the Applicant $16,300, the net sum of $4,378 should be payable. 5.I accept the evidence of the Applicant and find as facts as stated in this paragraph. He was given treatment in China for over three months. He is still suffering from pain over the right side of his head, which pain causes him dizziness at times. He feels feeble on his right arm and suffers a cramp in his right leg. He has not obtained employment. He only made one attempt to find employment from a garment factory without any success so far and that was just on the Friday about a week ago from the time he gave evidence. A. W. 2 Dr. Wedderburn in his evidence did say that the Applicant could have complained to him about pain in the neck though definitely not "fainting fit" and R. W. 1 Dr. Horsfall did say that the Applicant complained of pain when he moved his neck lightly (Page 12 and 14 of my written Notes of Proceedings refer). 6.Both medical surgeons for either party agreed on the physical impairment of the Applicant' being 10% (9% to 10% according to Dr Wedderburn) and I accept it as a fact. They are also of one mind that he is totally unfit to be a seaman anymore and totally unfit for heavy manual work of any kind. Nor for work which requires turning the head. 7.I accept the evidence of Dr. Wedderburn and find as facts as stated in this paragraph. X-ray of the Applicant's neck shows gross abnormalities. He has now subluxation of the 2nd cervical vertebra on the 3rd, the 4th on the 3rd and the 5th on the 4th. Subluxation is an abnormal position but not as bad as dislocation. Indeed he had a narrow escape.(Paragraph 1 at page 2 of his medical report Exh. AIA refers.)
Dr. Wedderburn dared not to get him to move his head through the extremes of the range in fear that he might die instantly in the clinic. The Applicant is a high risk. He must be careful not to engage in heavy manual work or work which involves turning the head e.g. as a driver. He is totally unfit to resume work as a 'seaman. He should work only on one level at relatively simple work and only light work e.g. as a messenger between officers albeit not too much travelling in public transport in Hong Kong. Dr. Wedderburn had taken into consideration of all that Counsel for the Respondent had suggested to him as these were within his knowledge at the time when he assessed the overall disability of the Applicant at 30%. His assessment is on the conservative side. The Applicant will be a high risk for as long as he lives. 8.Wherever Dr. Wedderburn's evidence differs from that of Dr. Horsfall, I accept that of Dr. Wedderburn who is an orthopaedic surgeon whereas Dr. Horsfall specializes in chest diseases. True, Dr. Wedderburn examined the Applicant some nine months before Dr. Horsfall did but I feel confident in specifically accepting Dr. Wedderburn's evidence that nine months would make only marginal difference in the patient's case with the given conditions. Dr. Horsfall frankly admitted that his 10% assessment was purely based oh medical grounds i.e. physical impairment or functional impairment excluding any non medical ground (Page 13 of Notes of Proceedings refers). Dr. Horsfall conceded that the scope of the Applicants employment has been impaired and he is unfit to resume the work of a seaman or undertake heavy manual work and it would be unwise for him to be a driver. 9.It is established law that in order to be entitled to 100 statutory compensation, there must be total incapacity either by definition of the First Schedule or at least that the injuries have rendered the employee totally incapable of doing any kind of work. Thus failure to obtain work would not be taken into consideration in assessing damages if the employee was fit to do certain work. Bevan v. National Navigation (1929) AC 44. 10.In Hong Kong Mills Ltd. v. CHAN Hin-wu (1981) H.K.L.R. 556, Huggins V.-P. said at page 559, Letter E:
11.The Applicant in this case is fit to do light work such as a watchman or a light gardener or sedentary work not requiring heavy manual labour or turning his head. It cannot be said that the injuries have resulted in total loss of earning capacity as he was not totally paralysed or permanently bedridden. Whether or not he will be able to find work suitable to him is, on the authorities binding on me, not to be taken into account. Nor it is open to award compensation for the pain he is to suffer for the rest of his life as would be in a running. down case at common law. In other words "Compensation under the scheme depends entirely upon the statutory provisions, which leave no room for common law principles of assessment of damages or, by the same token of mitigation of damages".(Per Cons, J.A. at 560 in Hong Kong Paper Mills Ltd.) 12.The First Schedule to the Employees' Compensation Ordinance quantifies percentages "of loss of earning capacity" in respect of loss of or injuries to limbs, eye-sight, hearing capacity and the like for the purpose of statutory compensation under sections 7 and 9. It is common ground that the injuries on the neck sustained by the Applicant do not . fall within any of the items under the Schedule. Proviso (ii) to section 9(1)(b) provides:
It is sufficiently clear that the aim of the Legislature was to provide compensation for loss of earning capacity caused by total or partial permanent incapacity. "Loss of earning capacity" is the yardstick and "incapacity" is merely a measure albeit highly important one of the yardstick. In Bywater v. Stothert (1932) 25 B. W. C. C. 422 at 430, Lord Hansworth M.R. adopted the dicta of Lord Lorehem in Ball v. Williams Hunt & Sons Ltd. (1912) A.C. 496 which succintly summed up:
Physical impairment or functional impairment, as some would call it, connotes the result of the injuries but loss of earning capacity connotes the net result of incapacity for work within the contemplation of the Legislature. 13.Section 19 of the Interpretation and General Clause Ordinance deems an ordinance to be remedial, which "shall receive such fair, large and liberal - construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit." Clause 3 of the Explanatory Memorandum of the Bill (Workmen's Compensation (Amendment) (No.2) Bill)stated the object of section 9(1)(b)(ii) as
14.The Legislature has in effect provided a fixed amount of compensation for a listed injury in respect of loss of earning capacity but there is nothing in section 9(1)(b)(ii) to suggest that in the case of an unlisted injury compensation for loss of earning capacity should be limited to the percentage of physical or functional impairment although such incapacity should be compensated in conformity with the listed percentages for an injury of the like nature as far as possible. I am fortified in my view by Chunk-chik v. Hip Fung (1973) D. C. L. R. 1 in which Collier D.J. held that a Court is not bound by a medical bound s assessment of the permanent physical incapacity when determining the extent of the loss of earning capacity caused by an injury for otherwise the medical profession world usurp the function of the Court. Section 9(1)(b) specifically provides
15.What is to be compensated is for loss of earning capacity and the line of authorities such as Ball and Bywater on "incapacity for work" which is the decisive measurement for loss of earning capacity apply. At page 431 in Bywater Lord Macnghten is quoted from 5 BWCC at 464:
Returning to the present claim, the Applicant is now rendered, by partial permanent incapacity as a result of the injuries, totally unfit to resume the work of a seaman and his working capacity is shrinked to that o?either sedentary or light-manual nature not requiring turning the head. He used to earn $3,802 a month as a seaman and he is surely to earn substantially less even if he can find a suitable job in future. It would be not only contrary to the intended purpose of compensating for "loss of earning capacity" but also extremely harsh to limit compensation to 10% strictly according to the percentage of physical impairment. 16.The difficulty in this claim is. lack of precise evidence on what the Applicant is capable of or expected to earn if and when he finds a job of sedentary or light-labour nature not requiring turning the head. No evidence was adduced by either party. The best really that I can do is to estimate how much he is likely or probably to earn less than what he used to earn as a seaman. Dr. Wedderburn gave an estimate of 30% disability on the basis that the condition of the bones of his neck is potentially dangerous and he might easily suffer a paralysis of the arms and legs with a slight trauma in the neck (See Page 3 of Exh. AIA) and he said that he was conservative about it. If an equation as close as to the First Schedule. has to be found for the sake of uniformity, I should think the Applicant is now in no better position than that of a general labourer who has an ankylosis of shoulder joint not being in worst position but much more than in optimum position i.e. between the range of 55% and 35% under Item 10 of the First Schedule. He exercised only an 8 lb. grip with the right hand compared with that of 65 1b. with his left. He has semi-paralysis of the right arm and to a certain extent of the right leg. He feels dizzy at times. He cannot do any work requiring heavy labour or turning the head. All these are permanent incapacity resulted from the injury to the neck. It would be unrealistic to erect that a prospective employer would give him more than half of $3,802 what he used to earn as a seaman. He is a high risk and he is really about half a man of what he was. On the evidence, I assess his loss of earning capacity to be 45%. In reality, he is likely to suffer more in money terms for the years to come if he lives that long but I must disregard pain and suffering and other common law factors as employee compensation must be confined to the ambit of statutory provisions as a matter of law. I formally enter judgment for the Applicant. Now compensation.
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