Shum Tsz Yan v. Union Medical Centre Ltd t/a Shatin International Medical Centre Union Hospital
Read the full judgment text of DCEC 1135/2004 on BabelCite. This District Court judgment was delivered on 19 July 2006.
1. This is the hearing of the Applicant's application for:
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DCEC 1135/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION CASE NO. 1135 OF 2004 ____________ In the matter of an Application between:-
____________ Coram: Deputy District Judge Thomas Au in Chambers Date of Hearing: 10 and 26 April 2006 Date of Handing Down Judgment: 19 July 2006 ___________________ JUDGMENT ___________________
1.This is the hearing of the Applicant's application for:
2.The Respondent opposes both applications. Brief background 3.At the material time, the Applicant was a radiographer of the Respondent, namely United Medical Centre Limited, trading as Shatin International Medical Centre Union Hospital (“the Hospital”). 4.It is the Applicant's case that she suffered an injury (“the Injury”) to her back on 16.05.03 while moving a paraplegic patient in order to take an x-ray. Mr. Ramanathan for the Respondent indicated at the hearing that the Respondent, for the purpose of the present application only, was prepared to assume that she had suffered the Injury as alleged. 5.The Applicant continued to work on that day after the Injury, but as the pain became intense after she had returned home, she attended the Accident and Emergency Department at Tuen Mun Hospital. She was diagnosed to have suffered from a sprained back and given 2 days sick leave. As the 2 days immediately following the sick leave were also her days off, she therefore did not return work until 4 days after the Injury. 6.When she returned to work on 21.05.03, she consulted an orthopaedic specialist at the Hospital and was admitted as an in-patient. A MRI was taken of her lower back. The MRI found no abnormality. 7.On discharge from the Hospital, she was given another 8 days sick leave and prescribed a course of physiotherapy. Upon the subsequent weekly follow-ups at the Hospital, she was granted further sick leave until 18.06.03. 8.The Applicant resumed work on 19.06.03, although the orthopaedic specialist advised in writing that she should avoid heavy duties for 2 months. 9.It was the Applicant's case that, after resuming work, the persistent low back pain and “the frequent unfriendly remarks from colleagues” made her very unhappy. She even contemplated suicide. In July 2003, she left suicide notes respectively to her mother and boyfriend when she left for work. Her mother and boyfriend eventually talked her out of committing suicide. 10.The Applicant subsequently resigned from the Hospital. 11.After her resignation, she continued to consult orthopaedic specialists at Tuen Mun Hospital as an out-patient, where she had also attended physiotherapy and occupational therapy. 12.It is the Applicant's case that she has, since the Injury continued to suffer from persistent low back pain. She has also been suffering from insomnia and severe headaches. 13.It is also the Applicant's case that the persistent low back pain has made her unable to resume work as a radiographer. Thus, since 08.11.04, she has been working as a part-time tutor at a tutoring centre teaching primary school children. Certificates of Assessment issued by the Employees' Compensation Board Form 7 14.On 06.10.03, after assessing the Applicant's condition, the Employees' Compensation (Ordinary Assessment) Board (“the OAB”) issued a certificate of assessment (the “Form 7”) certifying that (a) the necessary sick leave period of the Applicant was 17.05.03 to 18.05.03 and 21.05.03 to 18.06.03, and (b) the Applicant's loss of earning capacity caused by the Injury was 1.5%. It was also stated in the Form 7 that the Applicant's injury was “Back injury resulting in residual low back pain radiating to left thigh and stiffness”. Form 5 15.On 13.10.03, based on the assessment under the Form 7, a certificate of compensation assessment (the “Form 5”) was issued by the Commissioner for Labour, certifying that (a) the periodic payment within 12 months from the date of the Injury would be HK$15,587.00, and (b) the compensation for permanent incapacity would be HK$28,056.60. Form 9 16.The Applicant made an objection to the Form 7 within the 14 day statutory time limit. However, she did not make a separate application to object to the assessment under the Form 5 within the 14 day time limit nor did she appeal against the Form 5 under section 18 of the Employees' Compensation Ordinance (“the Ordinance”) within the 6 months time limit. 17.On 15.02.05, the OAB issued a certificate of review of assessment (the “Form 9”), whereby the board added an additional sick leave period from 24.10.03 to 18.05.04. The stated injury was also amended to “Back Injury Resulting in Persistent Residual Pain and Stiffness” (my emphasis). On the other hand, the loss of permanent earning capacity remained, as assessed, at 1.5%. It should be noted that the Form 9 was issued only after the Applicant has brought the present proceedings to appeal against the OAB's decisions. There is no evidence before the Court as to why it had taken some 16 months for the OAB to review the Form 7 and issue the Form 9. The Applicant's appeal and the present applications 18.On 06.10.04, the Applicant sought to appeal against the decisions of the OAB by issuing an application under the present proceedings seeking:
19.Subsequent to the filing of the Appeal Application, the Applicant issued the Summons. 20.Upon the call-over hearing of the Summons, by an Order of H. H. Judge M. Ng dated 02.11.05, the parties were given leave to serve and exchange psychiatric and orthopaedic reports. The parties were also given leave to file evidence in relation to the Summons. 21.Apparently in light of the Respondent's submissions that the parties were bound by the Form 5 before it was cancelled, and there ought thus to be no question of filing any further expert reports, by an Order dated 06.12.05, the learned judge ordered that there be a hearing on the Applicant's application to cancel the Form 5 out of time together with the Summons. Hence the present hearing before me. The expert evidence filed so far 22.Pursuant to the Order dated 02.11.05:
23.Dr. Cheng's Report and Dr. Tsoi's Report were made after a joint medical examination of the Applicant. It is common ground that:
The application to cancel the Form 5 out of time Should leave be granted to the Applicant to apply out of time to cancel the Form 5 24.S. 16(B)(1) of the Ordinance provides that the Court may cancel a certificate of assessment on the following grounds:
25.There is no dispute that by the time the Appeal Application was taken out, the application to cancel Form 5 (which was included in the Appeal Application) was already out of the statutory 6 months time limit. 26.However, under section 16B(2) of the Ordinance, the Court retains a discretion to extend the time to make a cancellation application if the Court thinks fit in the circumstances of the case. 27.The question is whether I should exercise my discretion to allow the Applicant to apply out of time. 28.After considering the circumstances of the case, I am of the view that I should give leave for the Applicant to so apply out of time to cancel Form 5. My reasons are as follows. 29.First, as submitted by Mr. Clough for the Applicant, I do not see that any real prejudice could be caused to the Respondent if leave is so granted. This is underlined by the fact that there was already the Appeal Application and the relief to cancel the Form 5 out of time was included in the Appeal Application. Moreover, the parties have also already filed their respective orthopaedic and psychiatric expert reports for the purpose of the Appeal Application. It is important to note that the Respondent had not even opposed any application by the Applicant to file the orthopaedic and psychiatric reports. This shows that the Respondent had not, until now, regarded the Form 5 as binding and thus no expert reports were required. 30.Secondly, the Applicant had in fact made an appeal against the Form 7. The Form 9 was subsequently issued by the OAB. What usually follows is that the Commissioner of Labour replaces the Form 5 with a new form 6, based on the Form 9. However, in reply to an inquiry made by the Applicant's solicitors as to the issuance of a form 6, the Labour Department by a letter dated 08.10.05 stated that it would not issue a form 6 “as the case has been filed at the District Court and the Court shall determine the case”. I refer to the matters set out in paragraphs 16 and 17 above. 31.In relation to the matters set out in paragraphs 29 and 30 above, Mr. Ramanathan did not seek to submit otherwise. As a matter of fact, Mr. Ramanathan did not make any serious submissions (and in my view fairly so) to oppose leave being granted to the Applicant to apply out of time. His submissions were made mainly in relation to the substantive application to cancel the Form 5, with which I shall deal later. 32.In the circumstances, I therefore grant leave to the Applicant to apply to cancel the Form 5 out of time. 33.The next question I should decide is whether the Form 5 should be cancelled. Should the Form 5 be cancelled 34.As I understand it, Mr. Clough's submissions that the Form 5 should be cancelled had 2 main heads. 35.First, Mr. Clough submitted that there was in fact no question of cancellation of the Form 5 under s. 16B of the Ordinance, because the Form 5 was “automatically nullified” as a matter of practice and procedure in light of the fact that the Applicant had already made a successful appeal against the Form 7, and the Form 9 had been issued to replace the Form 7. It is Mr. Clough's submission that, given that the quantum assessment in the Form 5 was based on the assessment set out in the Form 7, once the Form 7 was appealed against and replaced by the new Form 9, the Form 5 was thus logically “nullified”. It must therefore be regarded for all practical purposes as having been cancelled automatically. 36.Mr. Ramanathan, on the other hand submitted that, given the express and elaborate procedures set out in s. 16B of the Ordinance as to the basis upon which a certificate issued by the OAB may be cancelled, those must have been intended by the legislature to be exhaustive. In the premises, the Applicant's submissions simply could not stand as they did not fall within any of the 3 statutory grounds set out under s. 16B(1) of the Ordinance. 37.I agree with Mr. Ramanathan. The Ordinance has expressly and clearly provided the basis upon which the Form 5 may be cancelled. Mr. Clough's submissions are not supported by any authority and are at odds with the statutory provision. I therefore reject Mr. Clough's submissions under this head. 38.As an alternative to his first set of submissions, Mr. Clough relied on s. 16(B)(1)(a) and/or (b) to support his application to cancel the Form 5. 39.In relation to s. 16(B)(1)(a), Mr. Clough submitted that, given that the sick leave period had been extended in the Form 9, the compensation for sick leave as assessed in the Form 5 (which was based on the Form 7) must be wrong and thus not made in accordance with s. 10 of the Ordinance. Section 10 of the Ordinance deals with compensation in the case of temporary incapacity, and section 10(2) provides effectively that sick leave certified by a medical practitioner or an OAB shall be deemed to be a period of temporary incapacity irrespective of the outcome of the injury. 40.Mr. Ramanathan in rebuttal submitted that the additional sick leave granted under the Form 9 was all in relation to the period after theForm 7 was issued. It represented subsequent additional sick leave granted to the Applicant by her attending doctors. It was thus not a case where the OAB was wrong in its assessment of the sick leave period at the time of the Form 7 and the Form 5, as the additional sick leave was simply not then in existence. In such circumstances, it could not be said that the compensation assessed in the Form 5 was not made in accordance with section 10(2) of the Ordinance at the time of the assessment. Mr. Ramanathan further submitted that, in this respect, the Applicant would not be prejudiced in the Appeal Application by not having the Form 5 cancelled, as she should and would not be bound by the compensation set out in Form 5 insofar as the additional sick leave was concerned, since it was granted after the issue of the Form 5. 41.In Chu Chin Yiau v. Ray On Construction Co Ltd [1992] 1 HKC 246, in adopting Tung Shui Bun v. Gammon Building Construction [1985] 2 HKC 177 (CA), it was held by Deputy District Judge Bharwaney at p. 250 that, in determining whether to cancel a certificate under s. 16B of the Ordinance, the correctness of an assessment by the OAB had to be judged with regard to the employee's condition at the time of the issue of the relevant certificate, disregarding events subsequent thereto which might make the extent of injury or the extent of loss of earning capacity greater than it was thought to be at the time of the issue of the certificate. 42.Both Mr. Clough and Mr. Ramanathan agreed that this is the correct principle to apply for the purpose of determining whether the Form 5 was issued under the circumstances set out in s. 16B(1)(a) and/or (b) of the Ordinance. 43.Applying this principle, I have no difficulty in rejecting Mr. Clough's submissions that the sum assessed to be paid under the Form 5 was not in accordance with s. 10(2) of the Ordinance. I accept Mr. Ramanathan's submissions that at the time of the issue of the Form 5, the compensation in relation to the sick leave period was correct and thus made in accordance with s. 10(2) of the Ordinance. The subsequent additional sick leave granted to the Applicant and set out in the Form 9 is irrelevant to the determination of whether the assessment in the Form 5 was made in accordance with s. 10 of the Ordinance. In the premises, the Form 5 should not be cancelled on this basis as submitted by the Applicant. 44.In relation to the application to cancel based on s. 16B(1)(b) of the Ordinance, the Applicant has not provided to this Court the materials, medical evidence and/or reports, if any, that were made available to the OAB at the time of the issue of the Form 5 in October 2003 to show that the OAB was ignorant or had made a mistake as to the true nature or extent of her injury. 45.However, Mr. Clough relied on the following evidence to support his submissions that the Form 5 was issued in ignorance of, or under a mistake as to, the true nature or extent of the injury:
46.I am unable to accept Mr. Clough's submissions. These reports only reflect the Applicant's condition when she was seen and examined by these experts in about March and/or May 2005. They alone cannot, in my view, show on the balance of probabilities that at the time when the Form 5 was issued (i.e., October 2003), the OAB had ignored and/or made a mistake as to the true nature or extent of the Applicant's injury. 47.I therefore also reject the Applicant's submission that the Form 5 was issued in ignorance, or under a mistake as to, the true nature or extent of her injury by reason of these reports. 48.However, notwithstanding my rejection of the Applicant's above submissions, I have still come to the view that the Form 5 should be cancelled under s. 16B(1)(b) of the Ordinance for the following reasons. 49.I note that in both Prof. Lieh Mak's Report and Dr. Singer's 1st Report, it is accepted that at the time of the Injury (and thus also at the time of the issue of the Form 5), the Applicant was already suffering from depression. Further, as set out at p. 31 of Dr. Singer's 1st Report, Dr. Singer was of the opinion that the pre-existing depression would have aggravated the Applicant's perception of the pain arising from the Injury. Prof. Lieh Mak's Report was however silent on the effect of this pre-existing depression on the Applicant's appreciation and reaction to the low back pain arising from the Injury. There is thus at present no evidence to rebut Dr. Singer's said opinion. 50.I also note the Applicant's suicide attempt in July 2003 (i.e., after the Injury but before the issue of the Form 7 and the Form 5) as set out in paragraph 9 above. 51.For the purpose of determining whether the Form 5 was issued in ignorance of or under a mistake as to the true nature or extent of the Injury, I am entitled to take into account this evidence as to the Applicant's pre-existing depression at the time of the issue of the Form 5 as set out in Prof. Lieh Mak's Report and Dr. Singer's Report and the Applicant's suicide attempt. Cf: Liu Ah Sai v. Yiu Lian Dockyards Ltd (unrep., CACV 174/1996, Litton VP, Bokhary and Ching JJA, 8November 1996), paras 25-26, 51-58 per Bokhary JA (as he then was). 52.In the circumstances, I am of the view that there is sufficient evidence before me to suggest that on the balance of probabilities, the pre-existing depression of the Applicant might have had an impact on the OAB's assessment as to the true nature or extent of the injury suffered by her. In this regard, it is pertinent to note that the word “true” in s. 16B(1)(b) of the Ordinance has been interpreted by the Court of Appeal to mean the “true and unique” nature of the injury in a similar fashion to the expressions “true identity” or “true likeness”: Tung Shui Bun v. Gammon Building Construction Ltd [1985] 2HKC 177, 181 per Silke JA,commenting on the predecessor provision of s. 16B(1)(b). The combined effect of her pre-existing depression and the pain caused by the Injury should be relevant to the determination of the true nature or extent of the Injury for the purpose of assessing her disability by the OAB. 53.In this respect, in answering the Court's question, Mr. Ramanathan fairly accepted that the word “ignorance” in s. 16B(1)(b) of the Ordinance should be construed to at least also cover the situation where the OAB was simply not aware of the true nature or extent of the injury, as opposed to any intentional and/or inadvertent disregard of the same. 54.In the premises, and in light of my conclusion in paragraphs 50 to 52 above, even if (without deciding the same) there were no evidence put before the OAB on the Applicant's pre-existing depression condition at the material time, so that the OAB was simply not and could not be aware of such condition, the Form 5 was, in my view issued at least in “ignorance” of the true nature or extent of the Injury. 55.For these reasons, I would therefore exercise my discretion to cancel the Form 5. The Summons: Whether to allow the Application to file and rely on Dr. Chan's Report 56.On the issue of whether the occupational health expert's evidence (i.e, Dr. Chan's Report and presumably a corresponding expert report to be filed by the Respondent) should be allowed to be adduced, the guiding criteria for answering the question are: necessity, relevance and probative value: Arfran Muhammed v MPS Engineering Ltd (unrep., HCPI 457/2003, Deputy High Court Judge Muttrie, 30th June 2005) at paragraph 6, referring to the decision of Suffiad J in Chan Kwok Ming v. Hitachi Electric Service Co Ltd (unrep., HCPI 322/2002). 57.Insofar as the issues of relevance and probative value are concerned, I will respectfully adopt Chu J's observations in Wong Hoi Fung v. American International Assurance Co (Bermuda) Ltd (unrep., HCA 4567/2001, 8 October 2002) at paragraphs 11 and 12 as follows:
58.Adopting the above principles, I am prepared for the present purpose to say that Dr. Chan's Report is prima facie admissible as expert evidence. 59.However, I am of the view that Dr. Chan's Report is irrelevant, in the sense that it is of minimal probative value, for the following reasons. 60.In Dr. Chan's Report, it is his own position that, being an occupational health expert, he is the most appropriate expert or professional to give a view as to whether the Applicant is capable of returning to her previous job. At pages 2 and 3 of explanatory note attached to his report, Dr Chan gives the reasons as to why an occupational health expert is the most appropriate person to assist the Court in the assessment of the working capability of an injured person as follows:
61.As I understand it, in short, it is the Applicant's and Dr. Chan's own position that, instead of the orthopaedic and/or psychiatric specialists whose expert reports have already been filed, Dr. Chan is the most appropriate expert to assist the Court to determine whether the Applicant is capable of returning to her previous work or of taking up any other occupation because of:
62.However, in Dr. Chan's Report, there is nothing to show that he had personally visited the work place of the Applicant or any radiographer to enable him to acquire a special understanding or knowledge of the working conditions and requirements of a radiographer. As pointed out by Mr. Ramanathan (which was not challenged by the Applicant in reply), the information concerning some aspects of the work requirements of a radiographer as set out in the conclusion of Dr. Chan's Report appears to have been obtained by him only from the Applicant herself. 63.More importantly, Dr. Chan has not in his report made any “summing up” of the medical expert evidence of Dr. Cheng, Dr. Tsoi and Prof. Leih Mak, to explain why, although these other medical experts all concluded that the Applicant should be able to return to her previous job as a radiographer, he has come to a totally different view that the Applicant was unable to do so. The lack of a “summing up” in Dr. Chan's Report is, in my view, significant in 2 repects. First, as mentioned above, this special task of summing up is what Dr. Chan himself regards as an important function that distinguishes an occupational health expert from the other medical experts. Secondly, without such a “summing up”, there is simply nothing to enable the Court to understand why all the other medical experts are allegedly wrong in their conclusion as to the Applicant's ability to return to her previous occupation. 64.In the premises, I have come to the clear view that Dr. Chan's Report is irrelevant, in the sense that it is unlikely to be helpful to assist the Court to determine the question as to the Applicant's ability to return to her previous job, or that it is of minimal probative value on this question. 65.Bearing in mind that the parties have already filed their orthopaedic and psychiatric expert reports for the purpose of the Appeal Application, I was reminded by Mr. Ramanathan of Seagrott J's remarks against the proliferation of expert medical reports expressed in Wong Hin Pui v. Mok Ying Kit & Anor (No. 2) [2002] HKLRD 856, 874-875. 66.In the circumstances, I will refuse the Applicant's application for leave to serve and exchange Dr. Chan's Report. Costs 67.I will also make an order nisi in costs that:
Mr. Neal Clough instructed by Messrs Henry H.C. Wong & Co. for Applicant. Mr. Kumar Ramanathan instructed by Messrs Johnson, Stokes & Master for Respondent. |