Read the full judgment text of CACV 240/2010 on BabelCite. This Court of Appeal judgment was delivered on 26 May 2011 before Tang Acting CJHC, Hartmann JA, Fok JA.
Statutory construction – Employees' Compensation Ordinance (Cap 282) – s.10(4) – whether periodical payments made under s.10 before final assessment of compensation can be set off against compensation assessed under s.9 – applicant injured at work on 20 June 2008 – respondent Hong Kong Airport Services Limited paid HK$156,370.49 as periodical payments under s.10 and HK$5,040 as medical expenses under s.10A before final assessment – respondent admitted liability and judgment entered 15 October 2009 – assessment of compensation heard 22 and 25 June 2010 – Judge assessed 0.5% loss of earning capacity under s.9 in HK$3,524.21 and 355 days of genuine temporary incapacity under s.10 in HK$92,673.65 and medical expenses under s.10A in HK$3,820 – total compensation HK$100,017.86 fell short of amounts already received – Judge made no award and ordered applicant to pay costs of assessment – first issue: whether Judge's application of excess payments to extinguish s.9 award constituted a 'deduction' within s.10(4) – held yes – second issue: whether the phrase 'paid ... under this section' in s.10(4) includes pre-assessment periodical payments – held yes – respondent's construction that 'paid' refers only to sums paid after final assessment rejected – plain language of s.10(4) clear and unambiguous refers to periodical payments made in satisfaction of employer's obligations under s.10 including those made before final assessment – obligation to pay arises automatically upon temporary incapacity – legislative purpose supports construction – mischief intended to be cured ensuring compensation for temporary and permanent incapacity kept separate and distinct – Ordinance aims to provide quick financial relief in no-fault scheme – burden of rebutting presumption of temporary incapacity from sick leave certificates on employer – risk of overpayment and burden of recovery on employer – s.10(1) expressly recognises possibility of overpayment – District Court cases reviewed – Lai Yuen Hing v Lo Chi Hung disapproved – Tsang Kwong v Mayshing Construction considered inapplicable insofar as it treated s.10 payments as interim payments – Singh Baldwinder v Sino Phil Engineering Services approved as consistent with proper construction – Choy Wai Chung v Chun Wo Construction applied – Poon Chi Kwong v Poon Wing Kee (Metal)(Work) applied – Yu Tat Kam v Chu Tung Shing applied – Town Planning Board v Secretary for the Protection of the Harbour applied on principles of statutory construction – appeal allowed – order substituted for Judge's order – respondent to pay applicant HK$3,524.21 by way of compensation under s.9 – order nisi that respondent pay applicant's costs of appeal to be taxed if not agreed – applicant's own costs to be taxed in accordance with Legal Aid Regulations – order nisi for no order as to costs below.
Legal issues: Whether application of excess payments amounted to a 'deduction' under s.10(4) · Construction of 'paid ... under this section' in s.10(4) of the Employees Compensation Ordinance
Outcome: Appeal allowed; respondent ordered to pay the applicant the sum of HK$3,524.21 by way of compensation under section 9 of the Employees Compensation Ordinance.
Cited by 7 cases · Cites 5 cases