CHU CHIN YIAU v RAY ON CONSTRUCTION CO LTD
– [1992] 1 HKC 246
DISTRICT COURTDEPUTY DISTRICT JUDGE BHARWANEY
EMPLOYEES COMPENSATION CASE NO 31 OF 1991
21 January 1992
Employment — Employees’ compensation — Assessment of loss of earning capacity — Whether the assessment of the Board correct at the relevant time — Whether certificate issued in ignorance of or under a mistake as to the true nature of the extent of injury — Employees’ Compensation Ordinance (Cap 282) ss 9 & 16B
On 9 September 1989, the applicant, an odd job labourer, suffered an injury to his back which arose out of and in the course of his employment with the respondent. The Ordinary Assessment Board assessed him as suffering from a loss of earning capacity of 21/2%. He sought to cancel a minor injuries certificate and to apply for compensation for permanent partial incapacity. The issues for the court to determine were whether the assessment of 21/2% loss of earning capacity was correct at the relevant time and whether the certificate was issued in ignorance of or under a mistake as to, the true nature of the extent of the injury.
Held, dismissing the application:
- A court dealing with an appeal under s 18(1) or an application for compensation under s 9 of the Employees’ Compensation Ordinance (Cap 282) has to start afresh, relying not only on the certificate of the Board but also on any other evidence, especially medical evidence, adduced before it, to assess the loss of earning capacity permanently caused by the injury suffered in an accident at work. Chan Kit v Sum Wo Industrial Manufactory 1989 2 HKLR 230 and Yip Fong Ming v Joint-Effort Engineering Co [1989] 1 HKC 505 applied.
- The correctness of the assessment by the Ordinary Assessment Board had to be judged with regard to the applicant’s condition, as it was, at the time of the issue of the minor injuries compensation certificate, disregarding events subsequent thereto which might make the extent of injury or 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. Tung Shui Bun v Gammon Building Construction [1985] 2 HKC 177followed.
- As the applicant was able to return to full time work before August 1990 and in the absence of any evidence or material to contradict the Board or to suggest that it was wrong for the Commissioner to assess compensation on 24 July 1990 based on an assessment of loss of earning capacity of 21/2%, the applicant had failed to show that the amount assessed for loss of earning capacity was not in accordance with the Ordinance and, in particular, s 9(1)(c) thereof.
- Injury suffered in the course of a process of work is not necessarily suffered as a result of an ‘accident’, either within the ordinary meaning of the word or its meaning under the Ordinance.
- Section 9(1) directs the Board, as well as the court, to assess the permanent partial incapacity which resulted from the injury complained of, not from a pre-existing condition or from a future re-injury. The Board did not have the benefit[1992] 1 HKC 246 at 247of hindsight and should not be affixed with knowledge of subsequent events. The assessment of loss of earning capacity must be made as t 24 July 1990 with the knowledge that the applicant had recovered from the injury and was able to return full time to his former employment. It was an assessment of the potential for suffering from future loss of earning capacity.
- )On the balance of probabilities, the applicant had not shown that an assessment of 21/2% loss of earning capacity as at 24 July 1990 was not in accordance with the Ordinance. Accordingly the application to cancel the minor injuries compensation certificate was refused.
Per curiam:
It was surprising that members of the Board who conducted the review and issued the certificate of review of assessment were not called to give evidence. The fact that the certificate of the Board was admissible as evidence of its contents by virtue of s 16H, is no reason not to call its members, particularly, when one wants to overturn the certificate and not rely on it. The failure to call members of the Board on the issue of whether the Board was ignorant or mistaken about the true nature of the injury was even more surprising since they could have given direct evidence on what they took or did not take into account, when they assessed the applicant’s loss of earning capacity and whether or not they appreciated the applicant’s pre-existing condition and vulnerability to future injury.
Cases referred to
Chan Kam v Standard Chartered Bank Hong Kong Trustee [1988] HKC 345
Chan Kit v Sum Wo Industrial Manufactory [1989] 2 HKLR 230
Lee Chung Tai v KMB Co [1988] HKC 334
Tung Shui Bun v Gammon Building Construction [1985] 2 HKC 177
Yip Fong Ming v Joint-Effort Engineering Co [1989] 1 HKC 505
Legislation referred to
(HK) Employees’ Compensation Ordinance (Cap 282) ss 5, 9, 16A, 16B, 16D–16GA, 16G(3), 17, 17B, 18, 18A
Other legislation referred to
McGregor Damages (15th Ed) para 1429
Application
This was an application by the applicant pursuant to ss 9 and 16B of the Employees’ Compensation Ordinance (Cap 282). The facts appear sufficiently in the following judgment.DEPUTY DISTRICT JUDGE BHARWANEY
The applicant who was then 47 years old, suffered an injury to his back on 9 September 1989, which arose out of and in the course of his employment with the respondent as an odd job labourer at the site of a newly constructed church in Sham Shui Po. The applicant was cleaning the window panes on the third floor of the building[1992] 1 HKC 246 at 248with a running hose when he suddenly sprained his back. He brought two applications as a result of this accident at work. Firstly, an application pursuant to s 16B of the Employees’ Compensation Ordinance (Cap 282) (the Ordinance) to cancel a minor injuries certificate of compensation assessment issued by the Commissioner for Labour on 24 July 1990, and secondly, an application pursuant to s 9 of the Ordinance for compensation for permanent partial incapacity.
I directed, at the outset, that both applications be heard together. The minor injuries certificate had been issued, and assessed compensation for permanent partial incapacity based on a certificate of review of assessment issued by the Employee’s Compensation (Ordinary Assessment) Board on 7 June 1990 pursuant to s 16G(3) of the Ordinance. The Ordinary Assessment Board had on that day assessed the applicant as suffering from a loss of earning capacity of 2½%.
This assessment has not been appealed from and I refused Mr Emerson’s application, made on behalf of the applicant in the course of his opening, for leave to appeal from the assessment of the Board, for the reason that it was not necessary for the applicant to appeal therefrom in order to proceed with his application for compensation pursuant to s 9 of the Ordinance. This is clear from s 18A of the Ordinance which enables the court to determine all claims for compensation under the Ordinance, except to the extent determined by certificate under s 16A or by agreement under s 17. A certificate of the Board, issued pursuant to the provisions of ss 16D–16GA, does not of course, determine the compensation payable under the Ordinance although it may assess the degree of loss of earning capacity. Further, although s 18(3) enables the court to determine the amount of compensation payable when it entertains an appeal from an assessment made by an Ordinary or a Special Assessment Board, neither this provision nor the provisions in ss 16D–16GA, limit the court’s power to do so only upon such an appeal being lodged. The court therefore, is able, by virtue of s 18A, to determine an application for compensation under s 9 of the Ordinance Ordinance independently of and despite a previous assessment made by an assessment Board, and notwithstanding that there has been no appeal therefrom. In fact, whether an appeal is lodged pursuant to s 18(1) or application made for compensation under s 9 or, indeed, both procedures resorted to at the same time, it is clear that a court approaching the matter has to start afresh, relying not only on the certificate of the Board but also on any other evidence, especially medical evidence, adduced before it to assess the loss of earning capacity permanently caused by the injury suffered in an accident at work (Chan Kit v Sum Wo Industrial Manufactory [l989] 2 HKLR 230 at 233 and Yip Fong Ming v Joint-Effort Engineering Co & Anor [1989] 1 HKC 505 ).
Section 18A however, expressly excludes the court’s power to determine claims for compensation ‘to the extent that such claims are determined …[1992] 1 HKC 246 at 249by certificate under s 16A’. The applicant here therefore, could not proceed further and it was common ground that this was so unless he succeeded in overturning the minor injuries compensation certificate issued under s 16A. He sought to do so by his application, brought pursuant to s 16B, to cancel the certificate.The court may accede to an application to cancel, if it is proved that:
(a) the sum paid or to be paid was or is not in accordance with the provisions of this Ordinance; or
(b) the certificate was issued in ignorance of or under a mistake, as to the true nature or the extent of the injury; or
(c) the certificate was based upon any false or misleading information or statement given or made (s 16B(l)).
The onus is clearly upon the applicant, in applications brought under s 16B(l), to establish either one or more of these three grounds, before the court will entertain his application to cancel the certificate.
Instead of resorting to s 16B, an appeal may also be brought pursuant to s 18(1) from the decision or assessment of the Commissioner of Labour under s 16A and which has resulted in the minor injuries certificate complained of. Section 18(3) enables the court entertaining such appeals to confirm or reverse any such decision or assessment or to substitute its own assessment and determine the amount of compensation payable, without the limitations imposed by s 16B(l). These limitations are mirrored in s 17B which covers applications to cancel agreements approved by the Commissioner of Labour under s 17. The appeal provisions in s 18(1) have not been extended however, to cover s 17 agreements, presumably because it was thought that the right of an applicant to withdraw from an agreement, which on the face of it, he has voluntarily entered into, should be curtailed. This rationale does not apply to a minor injuries certificate issued by the Commissioner and probably explains why a wider right to appeal therefrom is granted by s 18(1).
For reasons that are not known to me, the applicant did not rely upon s 18(1) to lodge an appeal from the decision or assessment of the Commissioner giving rise to the certificate complained of. As stated above, it was common ground that the court could not determine his application for compensation unless he succeeded in his application to cancel the certificate.
Application to cancel the minor injuries compensation certificate
Mr Emerson relied on the first two grounds in s 16B(l), in support of the application to cancel the certificate and to withdraw his application to be allowed to rely upon the third ground as well, in the face of strong opposition from Mr Warren Chan who appeared for the respondent.[1992] 1 HKC 246 at 250
Two bundles were placed before me; a trial bundle and a respondent’s bundle. With the exceptions of the reports of Dr Daniel Wu and Dr Yeung Po Sum, all the documents comprised in them were agreed, in that their formal production was dispensed with. However, they were not agreed to be admissible as evidence of their contents. In addition, Dr Ho Yiu Kei was called to give evidence, as did Dr Wu and Dr Yeung and the applicant.
The applicant gave evidence, which I accept, that he had always worked on construction sites and that he had been employed by the respondent for about three months up to the time of the accident complained of. After the accident, he was admitted to United Christian Hospital, discharged the next day and either then or some stage thereafter, seen and treated by Dr Ho.
He was granted sick leave certificates from 9 to 30 September 1989 and from 2 October 1989 to 8 January 1990. He returned to work in March 1990 and was assessed by an Ordinary Assessment Board on 13 March 1990. The Board issued a certificate of assessment dated 23 March 1990 certifying that he suffered from a 2% loss of earning capacity as a result of the back injury sustained on 9 September 1989. The applicant applied for a review of the assessment. This took place on 22 May 1990 and resulted in the certificate of review of assessment, assessing loss of earning capacity at 21/2%, being issued on 7 June 1990. This, in turn, led to the issue on 24 July 1990 of the minor injuries compensation certificate now complained of.
This certificate assessed compensation by way of periodic payments (under s 10) and permanent incapacity (under s 9) in the total sum of $34,810. There is no dispute as to the calculations giving rise to this amount. Mr Emerson however, contends that this amount was not in accordance with the Ordinance because the assessment of 21/2% loss of earning capacity was too low. It is clear from the decision of the Court of Appeal in Tung Shui Bun v Gammon Building Construction Ltd 1985 2 HKC 177 that the correctness of the assessment has to be judged with regard to the applicant’s condition, as it was at the time of the issue of the minor injuries compensation 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. This is sensible given the dual needs for finality and speedy determination.
No complaint may well have been made about the certificate if not for the fact that, subsequent to its issue, he suffered a recurrence of low back pain in August or September 1990 which required medical treatment and led to the grant of further sick leave certificates from then onwards up to the time of the hearing of these applications.
Dr Daniel Wu and Dr Yeung Po Sum both agreed that the applicant now suffers from a substantial loss of earning capacity — Dr Yeung[1992] 1 HKC 246 at 251assessed the loss at 20% while Dr Wu assessed it as ranging from 20–25%. There was some controversy about whether or not this loss was caused by the accident at work on 9 September 1989, or whether an incident in August or September 1990 gave rise to the recurrence of low back pain and caused or contributed to the substantial loss of earning capacity or, to put it another way, whether that incident constituted a novus actus interveniens. This issue would require my adjudication were I to accede to the application to cancel the certificate and determine compensation afresh.
Turning therefore, to the application to cancel, the issues for my determination on this application are, firstly, whether or not the assessment of 21/2% loss of earning capacity was correct at the relevant time and secondly, whether or not the certificate was issued in ignorance of or under a mistake as to, the true nature or the extent of the injury.
Was the assessment of 2½% loss of earning capacity correct as at 24 July 1990?
I assume, for the purpose of determining this issue, that the certificate was not issued in ignorance of or under a mistake as to, the true nature or the extent of the injury. The injury in question, a sprained back, is not specified in the First Schedule to the Ordinance. I infer that when it reviewed the original assessment the Board purported to ascertain, firstly, pursuant to s 9(1) of the Ordinance, whether permanent partial incapacity resulted from the injury and, then, upon reaching an affirmative conclusion on this enquiry, purported to assess, pursuant to s 9(1)(b), the percentage of loss of earning capacity caused by the injury and issued its certificate of review of assessment accordingly.
The question I have to address is whether or not the assessment of 21/2% loss of earning capacity was in accordance with the provisions of the Ordinance, particularly, s 9(1)(b) thereof and remained valid, given those provisions, at the time of the issue of the minor injuries compensation certificate on 24 July 1990, having regard to the condition of the applicant and his ability to work at that time.
Dr Yeung who was called by the respondent to give evidence, did not, either in his evidence or in his report, directly address this issue.
It was common ground that the applicant suffered from scoliosis (a curved spine) and pre-existing degenerative changes of the spine even before the accident on 9 September 1989. The applicant did not give evidence about the condition of his back prior to September 1989 but he had told Dr Wu who had examined him on 28 May and 29 August 1990 as well as Dr Yeung who had examined him on 22 May 1990, that his back had been asymptomatic before this accident.
Dr Wu who was called by the applicant to give evidence, accepted this statement at face value but said that he could not objectively assess the correctness of this assertion. Dr Yeung however, found it hard to accept[1992] 1 HKC 246 at 252this assertion. He had regard to the extent of the degenerative changes in the spine and formed the opinion that the applicant most probably suffered from some pain even before September 1989. Dr Yeung however, did not know whether the pain was mild or how severe it might have been, or how frequently it recurred, or more importantly, whether it would have impaired his ability to work.
In the absence of direct testimony from the applicant on this point, I find it extremely difficult to reach a finding on it. If required to do so, I would conclude, on a balance of probabilities, having carefully weighed all the relevant evidence, that the applicant suffered from some mild pain even before the accident but I do not think that it is necessary to do so because of my finding, which I can confidently make on the evidence, that the applicant was able to work full time and for a full month before the accident despite the degenerative changes in and condition of his back and any pain he might have suffered as a result of it.
The applicant was granted sick leave certificates up to 8 January 1990. He gave evidence that he returned to work on construction sites but not until sometime in March 1990 and then, for only about 10–15 days a month as opposed to 30 days a month when he had worked for the respondent. He did not, in his evidence, expressly explain why he could not return to do a full month’s work.However, he did rely on and confirm the truth of the grounds of his objection to the initial assessment of 2% loss of earning capacity, namely, that his feet were always numb, the pain returned whenever he was not mindful of the injury, he could not sleep at night and needed pain killers (p 4 of the respondent’s bundle). Those statements however, were inconsistent with his direct testimony that he did not consult a doctor anymore, after he had returned to work, not until sometime in August 1990. I understood the applicant to mean, by that evidence, that he did not need to consult a doctor until August 1990.
He did not expressly say in evidence that he suffered from a recurrence of back pain then and he did not give evidence of any incident giving rise to the same. He had told Dr Wu however, that he had again strained his back at work in September 1990 but this time as a result of shovelling for a long period of time. He had also told Dr Yeung that he suffered from an exacerbation of back pain in August 1990 without an accident. It is clear that both statements refer to the same matter, the exact date of which is not important, but I infer from the sick leave certificate granted on 23 August 1990 by a medical officer of the United Christian Hospital stating that the applicant suffered from a back sprain that there was a recurrence of back pain then.
What is more important is that he had told Dr Wu that it had taken a few months of resting and therapy (after the September 1989 accident) before he was able to get better and return to work and that his back had then been fine until September 1990.[1992] 1 HKC 246 at 253
This evidence is consistent with the evidence of Dr Ho who had treated the applicant from sometime in September 1989 up to 8 January 1990, when he had advised the applicant to start work and to attend an assessment by the Board. The applicant had told him that he had enjoyed gradual relief from the treatment (p 39 of the trial bundle).
Dr Wu was asked expressly in correspondence whether the applicant was fully cured when he went back to work (p 59 of the trial bundle) to which Dr Wu responded:
Only the doctor who had been attending and examined his back prior to his return to work would be most qualified to answer this question, otherwise, it is more of an opinion than fact. My opinion is that his back condition was as what he claims to be unless he can be proven otherwise.
The applicant claimed to Dr Wu that his back was fine when he returned to work.
In the light of the evidence of Dr Ho, his statement to Dr Wu, his evidence that he did not require medical attention during the period when he had returned to work and having carefully weighed the relevant evidence on point, I find that the applicant was able to return to his former work, full time and for a full month, after the expiry of his sick leave certificates on 8 January 1990, regardless of whether he in fact, chose to do so or not. Surprisingly, members of the Board who conducted the review and issued the certificate of review of assessment were not called to give evidence on either of the issues I have to resolve on the application to cancel the minor injuries compensation certificate. The fact that the certificate of the Board is admissible as evidence of its contents, by virtue of s 16H, is no reason not to call its members, particularly, when one wants to overturn the certificate and not rely on it. This was not an appeal from an assessment made by the Board or a straightforward application for compensation where the practice is not to call the members of the Board but to call other medical evidence, which the court often accepts, although it differs from the assessment of the Board, because the latter is not supported by reasons. In this case, not only were the members of the Board not called, the medical evidence did not, either directly or clearly, address the issue under consideration.
I remind myself that a court can only judge an assessment by testing the validity of its conclusions against the total evidence available ( Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd 1988 HKC 345.
I return to the question I posed in the second paragraph to this section. Section 9(1) provides for compensation to be awarded where permanent partial incapacity ‘results’ from the injury. Section 3 defines permanent partial incapacity to mean ‘such incapacity (which may include disfigurement) as reduces his earning capacity, present or future, in any employment which he was capable of undertaking at that time’.[1992] 1 HKC 246 at 254
In the light of my earlier findings, particularly, that the applicant was able to return to full time work before August 1990 and in the absence of any evidence or material to contradict the Board or to suggest that it was wrong for the Commissioner of Labour to assess compensation on 24 July 1990 based on an assessment of loss of earning capacity of 21/2%, I conclude, so far as the earning capacity of the applicant on 24 July 1990 was concerned (that is to say, his then or ‘present’ earning capacity), that the applicant has failed to satisfy me that the amount assessed was not in accordance with the provisions of the Ordinance and, in particular, s 9(1)(b) thereof. The question of special circumstances, which s 9(lA) directs the court to have regard to, does not arise in view of my finding that the applicant was able to return to his former employment on construction sites. I find further, irrespective of whether or not the Board was ignorant of or mistaken about the true nature or extent of the injury and so far as his ‘present’ loss was concerned, that is to say, the reduction of earning capacity on 24 July 1990 and not taking into account any future or any potential for future reduction that the percentage of loss of earning capacity permanently caused by the injury sustained on 9 September 1989, in any employment which the applicant was capable of undertaking at that time, did not exceed 21/2% as of 24 July 1990.
There is another point to consider which was forcefully put by Mr Emerson and it is this: whilst the assessment may have been correct when regard was had to his current condition, given the fact that his back was then fine and he was able to return to work, the assessment was not in accordance with the Ordinance because it did not take into account the fact that this injury made him vulnerable to further deterioration, which could come about by itself or as a result of further injury, and which would substantially reduce his earning capacity. In other words, whilst an assessment of 21/2% may have been correct so far as his then or ‘present’ loss of earning capacity was concerned, it was too low having regard to the potential for further deterioration and the likelihood of suffering from a ‘future’ loss of earning capacity. In fact, the events that have occurred since 24 July 1990 have translated the potential for future loss into an actual loss of earning capacity of about 20–25% at the time of the hearing. I shall return to this point after considering the next issue.
Was the certificate issued in ignorance of or under a mistake as to, the true nature or the extent of the injury?
The focus of the enquiry here was, whether the Board appreciated the extent of the injury. The Board clearly appreciated the true nature of the injury the applicant suffered from, namely, a sprained back. In fact Dr Wu, who regarded sprains as being more serious, suggested that the applicant had suffered from a less serious strained back. However, whether one calls it a sprained back or a strained one, I find that neither the Board[1992] 1 HKC 246 at 255nor the Commissioner of Labour were ignorant of or mistaken about the true nature of the injury (cf Tung Shui Bun v Gammon Building Construction Ltd).
The failure to call members of the Board on this issue was even more surprising since they could have given direct evidence on what they took or did not take into account, when they assessed the applicant’s loss of earning capacity and whether or not they appreciated the applicant’s pre-existing condition and vulnerability to future injury. In the absence of direct evidence, I must turn to the other evidence, some of which I have already referred to above, to decide whether or not the Board appreciated the extent of the injury sustained on 9 September 1989. The onus on this issue rested with the applicant, as it did on the first issue.
As was the case with the first issue, the evidence relevant to this issue was sparse. Dr Yeung’s report did not refer to the assessment by the Board nor did he address, in his evidence or in his report, the question whether or not the Board had been mistaken regarding the extent of the injury suffered.
Dr Wu was expressly asked in correspondence (p 60 of the trial bundle) whether the original injury was more serious than at first thought, to which he answered no (p 66 of the trial bundle). That answer may well have been conclusive had he been asked expressly whether or not the extent of the original injury was more serious than at first thought. Be that as it may, he conceded in evidence that there was a possibility that the Board might have misunderstood the quantity of the injury sustained. He did not go on to suggest that the Board had actually, or probably, done so. On the contrary, Dr Ho, boldly and without any hesitation, asserted that the certificate of review of assessment (p 37 of the trial bundle) recorded the full extent of the injury suffered by the applicant as known on that day, 7 June 1990. As Dr Wu conceded, Dr Ho would be in the best position to speak of the applicant’s condition when he went back to work.
The Board may have been mistaken regarding the extent of the injury sustained in September 1989 in one or more of the following ways:
(a) it failed to appreciate that the injury could and was likely to cause or contribute to the development of a chronic condition of low back pain such as would further incapacitate the applicant from work; or
(b) it failed to appreciate that the injury could and was likely to result in a relapse or a recurrence of low back pain such as would further incapacitate the applicant from work; or
(c) it failed to appreciate the applicant’s pre-existing condition and, further, or alternatively, that the extent of the injury was, or was likely to be worse, by reason of the pre-existing condition.
The above is not intended to be a comprehensive list but a restatement of the matters raised during the hearing and in final submissions.[1992] 1 HKC 246 at 256
I infer, first of all, that the Board had in its possession the record and notes of the applicant’s admission to and treatment by the doctors, including Dr Ho of the United Christian Hospital. From this, I find that the Board was aware that the applicant suffered from degenerative changes in his lower spine and from scoliosis which, in any event, would have been observable on physical examination of the applicant.
From this finding, I proceed to consider what brought about the recurrence of low back pain in August 1990. Four possibilities were explored on the evidence; the development of a chronic back condition, a relapse of the original injury, a relapse of the pre-existing back condition, a further injury in August 1990.
If the injury brought about the development of a chronic back condition resulting in a loss of earning capacity of about 20–25% then, the Board obviously failed to appreciate the extent of the injury because it should have assessed a higher loss of earning capacity to cater for this development. Likewise, if there was a relapse of the original injury resulting in this substantial loss of earning capacity. However, the evidence does not support either of these two possibilites and I reject both of them.
The medical evidence, as I understood it, only made out a case for the last two possibilities.
Dr Ho’s answer to my question, whether he ascertained what had caused the problem in August 1990, was that it was a reactivation of a chronic problem. At first blush, this answer seems to support the first possibility referred to above. However, I understood this evidence in the context of his overall evidence to mean that the recurrence of pain in 1990 was a relapse of his pre-existing chronic back problem. He had earlier in his evidence disagreed with Mr Emerson’s suggestion that a single sprain could develop into a chronic back problem and said that a single sprain usually healed within six months. Just preceding the statement that it was a reactivation of a chronic problem, he said that the damage had already been there, the twist (in September 1989) exaggerated it and had some significance. His evidence therefore, whilst not ruling out the fact that the injury in September 1989 had some causal significance, was that the recurrence in August 1990 was a relapse of a pre-existing condition.
Dr Yeung was of the same opinion. He stated in his report (at pp 49–50 of the trial bundle):
These conditions are long standing and cannot occur after the accident (in September 1989). With his severe degeneration, he is expected to have back pain at anytime. I do not think the accident is a significant cause to his back problem (he conceded under cross-examination that it was ‘some cause’ albeit not significant) … (The applicant) had exacerbation of back pain without an accident (in August 1990). This is a typical kind of degenerative spine. Patient may feel better after rest but exacerbation is common. Without the ‘accident’ (in August 1990), (the applicant) is expected to have back pain anytime.[1992] 1 HKC 246 at 257
Dr Wu gave evidence that it was possible for a degenerated but asymptomatic back to sustain a sprain in September 1989 and develop into a chronic condition the next summer. He continued to say that the degenerative condition might not become symptomatic until it developed into a more advanced stage. I understood this to mean that the sprain might accelerate the onset of symptoms. However, whilst he agreed with this possibility, he did not support it because his conclusion was that the applicant had suffered two strain injuries to his lower back for which he assessed a loss of earning capacity of 20–25%. He expanded on the reasons for arriving at this conclusion in his second report where he stated (at p 65 of the trial bundle) that the deterioration in his health was not likely to be the reason for his second injury (meaning the recurrence of pain in August 1990) but that, since his back pain after the second incident was very similar to the first, it (that is, the second incident) was probably a re-injury of the same previously injured and weakened area of his back.
Having carefully considered the medical evidence, I find, on a balance of probabilities, that Dr Wu’s conclusion as to the cause of the recurrence of pain in August 1990 is correct and I accept it. In doing so, I take into account and rely upon the admission made by the applicant that the pain recurred when he strained his back at work by shovelling for a long time. Injury suffered in the course of a process of work is not necessarily suffered as a result of an ‘accident’, either within the ordinary meaning of the word or its meaning under the Ordinance, and I do not find any inconsistency between the applicant’s statements to Dr Wu and his statement to Dr Yeung that the pain recurred without ‘an accident’.
I also accept Dr Wu’s evidence (at pp 64–65 of the trial bundle) that the degenerated back of the applicant was already more susceptible to injury as compared to a normal back because of the pre-existing degeneration as well as the applicant’s occupation in construction work and that the area that was injured in September 1989 was made even more vulnerable than before. This increased risk was realized when the same area suffered a re-injury in August 1990 resulting in a loss of earning capacity of about 20–25%.
Dr Ho and Dr Yeung did not disagree that the September 1989 injury would have made the degenerated back even more vulnerable. Dr Ho conceded that the September 1989 injury had ‘some significance’ and Dr Yeung conceded that it was a cause, although not a significant cause, of his back problem.
The vulnerability point, if I may call it that, was neither novel nor startling. It was expressly and readily accepted by Dr Ho when he gave evidence that the effect of an injury was relative to whether it had been sustained by a healthy spine or an unhealthy one. Dr Yeung was not asked about it. He tacitly accepts it because he concedes that his September 1989 injury was a cause of his subsequent back problems.Having regard to this evidence and in the absence of evidence from members of the[1992] 1 HKC 246 at 258Board, I am not prepared to find that they failed to appreciate the extent of the injury because they failed to appreciate that it made the previously degenerated back even more susceptible to injury (cf Lee Chung Tai v Kowloon Motor Bus Co (1933) Ltd 1988 HKC 334. If Dr Wu, Dr Ho and Dr Yeung who probably would have confirmed this if he had been asked, appreciated the point, I can find no reason to suggest that the members of the Board would have failed to do so.
None of the doctors suggested that the recurrence of pain in August 1990 was a relapse of the original September 1989 injury. Nor did they suggest that such a relapse of the original injury was possible. Members of the Board cannot, therefore, be criticized for failing to consider this possibility, even if I were to find, which for the reasons given above I am not prepared to do, that they in fact failed to consider it.
This leads me to a consideration of the final matter raised above, namely, whether the Board failed to appreciate that the injury could result in the development of a chronic back problem or accelerate such development and thus, cause further loss of earning capacity. Although I have found that this did not occur in the present case, the possibility of its occurrence was accepted, albeit not too enthusiastically, by both Dr Wu and Dr Ho. Dr Yeung did not express an opinion on this point.I find that if the members of the Board had failed to appreciate this possibility or to take it into account, then, they would have failed to appreciate the extent of the September 1989 injury. However, I am not prepared to do so for the same reasons that I have given above.
I now return to what I perceive to be Mr Emerson’s strongest point.
Was an assessment of 21/2% too low given the applicant’s vulnerability to further injury?
21/2% would appear to be too low, at first blush, because a year or so later, the applicant’s actual loss of earning capacity was ten times greater, at 20–25% and perhaps, even greater than that if one takes into account such special circumstances of the applicant if any, that may be found to exist and to increase the percentage of loss (s 9(lA) of the Ordinance).
However, s 9(1) directs the Board, as well as the court, to assess the permanent partial incapacity which results from the injury complained of, not from a pre-existing condition or from a future re-injury. The Board did not have the benefit of hindsight and indeed, should not be affixed with knowledge of subsequent events. The assessment of loss of earning capacity must be made as at 24 July 1990 with the knowledge that the applicant has recovered from the injury and is able to return full time to his former employment. It is an assessment of the potential for suffering from future loss of earning capacity. The future loss was not a certainty and may never have occurred. Strictly speaking, this potential was always there because[1992] 1 HKC 246 at 259of his pre-existing back condition. So it is an assessment of the increased potential for future loss which resulted from the injury sustained in the September 1989 accident. This injury made the back even more vulnerable to future damage. The translation of this increased vulnerability into a percentage of loss of earning capacity, bearing in mind that the future loss may never occur and if it does, the applicant may recover from it as he did from the September 1989 injury, is almost speculative and very difficult without the assistance of medical expert testimony.
No such evidence was led before me although an attempt had been made to ask Dr Wu to reconsider the assessment of 21/2% (p 60 of the trial bundle). His answer, that 20% loss of earning capacity was still his estimation (p 66 of the trial bundle), missed the point because that loss had to be assessed as at 24 July 1990 before the recurrence of pain in August that year.
What is clear to me however, is that the increased potential for suffering from future loss of earning capacity caused by the September 1989 injury, cannot be great given the overall scheme of things and the role played or to be played, in the event that this contingency became a certainty, by his pre-existing back condition, future injury to the back or re-injury to the same area and the body’s natural ability to heal. From a purely personal and non-expert point of view, I have misgivings that 21/2% is perhaps, on the low side despite the substantial discounts one has to make to reflect future contingencies and pre-existing predisposition. However, and unfortunately from the applicant’s point of view, I am not satisfied, on a balance of probabilities, and the onus on this issue is clearly on the applicant, that an assessment of 21/2% loss of earning capacity as at 24 July 1990 was not in accordance with the provisions of the Ordinance.
I therefore, refuse the application to cancel the minor injuries compensation certificate.
Application for compensation
Despite not setting aside the minor injuries compensation certificate, it may be proper for me to proceed, nevertheless, to assess compensation afresh, on the assumption that I may have been wrong not to cancel the certificate. However, I refrain from doing so, given the paucity of evidence on point, and would prefer to leave that assessment and the question of whether or not there was a novus actus interveniens in August 1990 to be addressed by another court, should a late application for leave to appeal from the decision of the Commissioner of Labour resulting in the issue of the minor injuries certificate be lodged pursuant to s 18 and should leave be granted, despite the lateness of such application. The time I have taken to deliver this judgment, for which I apologize to the parties, should not of course, be taken into account were such an appeal to be lodged.[1992] 1 HKC 246 at 260
Had I set aside the certificate and proceeded to assess compensation, I would have concluded that my assessment of compensation should take into account events occurring up to the hearing of the application for compensation (cf McGregor on Damages (15th Ed) para 1429).
Reported by Danny Choi