Read the full judgment text of FACV 000014/2005 on BabelCite. This FACV judgment was delivered on 27 February 2006 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Ivor Richardson NPJ.
Employees' Compensation – permanent partial incapacity – concurrent causes – work-related injury and pre-existing disease – apportionment – Employees' Compensation Ordinance, Cap. 282, ss.5(1), 6, 6A, 7, 9, 9(1)(a), 9(1)(b), 9(1A), 10(1), 10(4), 10(5) – no-fault compulsory insurance scheme – whether s.10(5) precludes apportionment – whether the Ordinance, construed as a whole, permits apportionment between injury and pre-existing disease for non-scheduled injuries – Court of Final Appeal holds that s.10(5) deems only the permanence of the incapacity, not causation, and does not preclude apportionment on that ground – the Ordinance as a whole does not permit apportionment – it suffices for full compensation that the injury was a cause (even if not the sole cause) of the death, permanent total incapacity, permanent partial incapacity or temporary incapacity – respondent, a delivery worker, fell from lorry on 29 April 1997 and suffered subchondral fracture of left femoral head, aggravating pre-existing avascular necrosis of both hips – rotational osteotomy resulted in leg shortening and 5cm shoe lift – respondent received 36 months of periodical payments – Assessment Board certified 40% then 60% loss of earning capacity – District Court (H H Judge C B Chan) revised to 90% permanent partial incapacity under s.9(1A) and awarded $1,138,233.38 without apportionment – Court of Appeal (Rogers VP, Hartmann and Reyes JJ) upheld – Court of Final Appeal unanimously dismisses appeal with costs – costs taxed in accordance with the Legal Aid Regulations – no-fault scheme aims at quick financial relief via compulsory insurance and does not import fault-based apportionment – no statutory provision requires excision of the portion of incapacity attributable to extraneous concurrent causes – argument would require rewriting 'where' as 'to the extent that' – apportionment has no application in fatal cases, permanent total incapacity cases, or scheduled injury cases, and there is no basis for distinguishing non-scheduled injuries – Lee Kin Kai v Ocean Tramping Co Ltd [1991] 2 HKLR 232 followed – Hong Kong Paper Mills Ltd v Chan Hin-wu [1981] HKLR 556 applied (statutory scheme is self-contained; common law concepts not to be imported).
Legal issues: Effect of s.10(5) of the Employees' Compensation Ordinance on apportionment · Whether the Employees' Compensation Ordinance permits apportionment of permanent partial incapacity between a work injury and a pre-existing disease
Outcome: Appeal unanimously dismissed with costs.
Cited by 6 cases · Cites 2 cases