LKK TRANS LTD v. WONG HOI CHUNG

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)

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Appeal Committee: Chief Justice Li , Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ

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D E T E R M I N A T I O N

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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:

(a)	Where permanent partial incapacity may be due to more than one cause, does s 10(5), when it applies, preclude the court from approaching such incapacity on the basis that it is partly due to causes which are unrelated to the injured worker’s employment? and
(b)	If not so precluded, is it open to the court to apportion the incapacity attributable to the accident at work as opposed to other causes, and if so, by applying what principles?

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.