Tung Shui Bun v. Gammon Building Construction Ltd.

CACV000110/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: Roberts, C.J., Silke, J.A. & Liu, J.

Date of hearing: 31st July 1985

Date of judgment: 30th August 1985

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JUDGMENT

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Silke, J.A.:

1. Tung Shui Bun - "the employee" - was a worker with Gammon Building Construction Limited - "the employer"

2. On the 7th October 1982, the employee was injured in an accident arising out of and in the course of his employment.  The injury was described as a sprained back. On the 6th May 1983, there was an assessment by a Medical Board. Their findings were that there was a resultant disability, residual pain and that permanent incapacity was 2%. On the 16th May 1983, an agreement was entered into between the employer and the employee under the provisions of section 17 of the Employees' Compensation Ordinance, Cap. 282 - "the Ordinance"

3. In its paragraph 4, the agreement stated:

"By reason of the said injuries the Employee was incapacitated from work  for 211 days from 8-10-82 to 6-5-83, both days inclusive   ...... and received medical treatment in respect of the said injuries."

Paragraph 5 read:

"The Employee has since recovered from the said injuries but there is a 2% permanent incapacity."

The total amount of compensation was HK$22,126.66, from this was deducted the sum of x6,000 already paid leaving the balance, subsequently paid, of $16,126.66. This agreement was approved by the Commissioner for Labour on the 26th May 1983. It does not appear to have been made an Order of Court.

4. On the 11th November 1983:, there was a further medical assessment, though not by a Medical Board. This document described itself as a "reassessment" and stated the percentage of the loss of earning capacity to be 5%. It made no reference to any percentage of permanent disability. On the 26th November 1983, there was filed in the District Court an application made under the provisions of sub-section (5) of section 17 of the Ordinance (now section 17B) and it is of moment to cite that which appeared on the face of that application:-.

"       The circumstances in which the application is made are shortly as follows: On 7-10-1982, the applicant sustained injury while he was carrying out his duties,. He was granted sick leave from 8-10-1982 to 6-5-1983, and 'was assessed to have suffered 2% permanent incapacity. An agreement was drawn up between the applicant and the respondent on 16-5-1983 and was approved by the Commissioner for Labour on 26-5-1983.

The applicant approached Labour Dept. on 15-7-1983 and informed that his injury was relapsed. He met another reassessment convened on 11-11-1983 at Queen Mary Hospital where he was found to have suffered 5% permanent incapacity and was granted further sick leave from 15-7-1983 to 26-8-1983 and 2-9-1983 to 16-10-1983.

The relief or order which the applicant claims is shortly as follows:

Agreement dated 16-5-1983 made by both parties and was approved by the Commissioner for Labour on 26-5-1983 be cancelled under Section 17(5) of the Employees' Compensation Ordinance,Cap.282, and for an order that the compensation payable to me be assessed and awarded by the Court as the Court may deem proper."

5. The employee was served with a copy of this application and, it is accepted, was on notice of the hearing. On the 11th January 1984, the District Judge - "the first District Judge" -made the following order:

"(1)     Judgment for the Applicant.

(2)      Compensation to be assessed and awarded.

(3)      Adjourned sine die with liberty to restore.

(4)      Costs in the cause."

The employer did not attend the hearing.

6. On the 9th January 1985, the assessment of compensation directed by the first District Judge came before another Judge of that Court - "the second District Judge". The legal representative of the applicant saw fit to apply before the second Judge to have the "settlement", by which I take it he meant the agreement, cancelled "on the ground of ignorance as to the true nature and extent of his injuries at the time of the 'settlement' and approval". The second District Judge instead of dealing with an assessment of compensation on foot of the order of the first District Judge, proceeded to reopen the question of whether or not the agreement should be cancelled stating:

"such cancellation being a prerequisite of assessment of compensation in the circumstances."

7. His ultimate conclusion was somewhat at variance with those views for he said:

"      In the result, it is not open to me to set aside the accord (and indeed satisfaction) as sought and the application for assessment of damages is dismissed with the odd effect that the judgment entered by my brother (who has not returned from leave) which I have no jurisdiction to set aside must remain an empty one."

8. The employer appeals against the cancellation order of the first District Judge of the 11th January 1984 and the employee appeals against the judgment of the second District Judge delivered on the 22nd January 1985. Both appeals were brought well out of time. We have, under the provisions of section 23 of the Ordinance, made orders at the commencement of this hearing extending the time within which to lodge the appeals, there being Notices of Motion before us seeking such relief.

The then section 17(5) of the Ordinance read:

"Where any such agreement has been approved by the Commissioner the Court may, notwithstanding that the agreement has been made an order of the Court under the provisions of subsection (4), on application by any party thereto or by the Commissioner within 6 months after the date of the signification of the Commissioner's approval, cancel it and make such order (including an order as to any sum already paid under the agreement) as in the circumstances the Court may think just, if it. is proved

9. I deal with both of these appeals together and the issues are twofold:

10. The first District Judge gave no reason for as to why he made the order he made on the 11th January 1984. Nor do we have the transcript of the proceedings before him. It would appear that no evidence was called and that the must have acted upon on the contents of the application and on his interpretation of the phrase "the true nature of the injury".

11. The reference to the "true nature of the injury" seems to be peculiar to Hong Kong. Neither counsel, who appeared at the hearing of these appeals, was able to bring to our attention any direct authority on the meaning of the phrase. We, therefore, fall back upon the normal canons of construction of a statute which require that its words should be given their ordinary and natural meaning and that words which the Legislature has not seen fit to include should not be added by the Courts. The employee seeks to persuade us that the expression "true nature of the injury' includes the extent of that injury. The employee's injury has always been a sprained back.  It would seem, from the medical reports subsequent to the date of the agreement, which reports were before the second District Judge, that the effect of the injury lingered on, but that the nature of the injury remained. In our view, the word "true", if it is not to be mere surplusage, is there to emphasize the word "nature".

12. Mr. Christopher Smith for the employer however submits that if "nature" equals "quality" as opposed to "quantity" the word "true" in the sub-section would be superfluous.,

13. The purpose of the Employees' Compensation Scheme is, unlike the old English scheme, to come to an early final settlement, as early as the nature and effect of the injury are known. The Ordinance contains clear and unambiguous provisions, which confine the cancellation of an agreement to the circumstances then set out in section 17(5).

14. In our judgment; the word "true", in this context, Must be taken to connote the "true and unique" nature of the injury in a similar fashion to the expressions "true identity" or "true likeness". Thus, giving to the phrase its ordinary and natural meaning, we do not consider it covers the extent of the effect of the injury.

15. This reading is, from the employee's point of view, an unfortunate one. There is no doubt that, subsequent to the approval of the agreement, he had further periods of sick leave. He seems to have had some residual pain impeding his ability to work. But it is not for us to supply words in the sub- section which are not there.

16. We accept Mr. Pennicott's submission that the sum as set out in the agreement was the correct sum which at that time was payable to the employee. This is no dispute as to the calculations. We do not accept Mr. Smith's submission that if the extent of an injury later becomes greater than it was thought to be at the time of the agreement, then further compensation can be assessed on the basis that the agreed sum "not in accordance with" the ordinance because the employee is entitled to the greater sum.

17. We must assume that the first District Judge considered the provisions of section 17(5) when making his order and thus that he misinterpreted that sub-section by, in effect, adding the words "and extent" after the word "nature" appearing therein. Therefore, the employer's appeal succeeds, the judgment of the 11th January 1984 is set aside and the agreement stands.

18. As the first District Judge had cancelled the agreement, the second District Judge was without jurisdiction when he proceeded to try and to decide the same issue since his only duty was simply to assess compensation anew. For that reason that appeal also must succeed.

19. The net effect is that the agreement stands.

Representation:

Christopher Smith, Esq. (D.L.A.) for Applicant.

Ian Pennicott, Esq. (Denton Hall & Burgin) for Respondent.