Lkk Trans Ltd v. Wong Hoi Chung
Read the full judgment text of FAMV 6/2005 on BabelCite. This FAMV judgment was delivered on 30 May 2005 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Ribeiro PJ.
Civil procedure – leave to appeal – liquidated claim – Employees' Compensation Ordinance – causation – permanent partial incapacity – multiple causes – apportionment – pre-existing condition – bilateral avascular necrosis – aggravation and acceleration – s.10(5) ECO – s.9 ECO – lump-sum compensation – loss of earning capacity – great general or public importance – leave granted limited to causation and apportionment issues – novus actus not included – assessment of 90% incapacity not included – remittal to District Court if apportionment needed
Legal issues: Nature of ECO claim for leave purposes · Causation under ECO with multiple causes · Apportionment principles for incapacity
Outcome: Leave to appeal granted limited to questions of law on causation and apportionment under the ECO; not granted on novus actus or assessment of 90% incapacity.
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FAMV No. 6 of 2005 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 6 OF 2005 (Civil) (ON APPLICATION FOR LEAVE TO APPEAL FROM CACV No. 116 of 2004) _______________________ Between:
_______________________ Appeal Committee: Chief Justice Li , Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ Date of Hearing: 30 May 2005 Date of Determination: 30 May 2005 _______________________ D E T E R M I N A T I O N _______________________
Mr Justice Ribeiro PJ: 1.The respondent to this application for leave to appeal was a delivery worker who fell and suffered injury to his hip while at work. He had a serious pre-existing degenerative condition affecting both hips known as bilateral avascular necrosis and the judge found that the injury caused by the accident aggravated as well as accelerated the necrosis. He had to undergo a hip operation which resulted in a shortening of his left leg. 2.He received periodical payments for temporary total incapacity under s 10 of the Employees’ Compensation Ordinance, Cap. 282 for a period of 36 months. By virtue of s 10(5), the judge held that he was deemed to have suffered permanent incapacity so that s 9, which provides for lump-sum compensation for permanent partial incapacity, became applicable. His loss of earning capacity was assessed at 90% and he was awarded compensation in the sum of $1,138,233.38 without any account being taken of his pre-existing condition. 3.The applicant is his employer. It seeks leave to appeal on the issue of causation. But it submits in the first place that the ECO claims, such as the present, should be treated like liquidated claims so that leave to appeal is as of right. That argument cannot be accepted. Compensation under the ECO requires assessment and quantification. The claim is not a liquidated claim. 4.The main argument is, however, that the appeal raises questions of great general or public importance concerning the way causation is to be dealt with under the ECO. In particular:
5.In our view, these are the points which are reasonably arguable on the facts and are points of great general or public importance meriting reference to the Court for decision. We therefore grant leave to appeal limited to those questions of law but not on the suggested issue regarding an alleged novus actus nor on the underlying findings assessing the degree of incapacity at 90%. In the event that an apportionment proves to be necessary, that question would be remitted to the District Court.
Mr Denis Chang SC and Mr Mohan Bharwaney (instructed by Messrs Hastings & Co) for the applicant Mr YL Cheung (instructed by Messrs Ho, Tse, Wai & Partners) for the respondent |