LIMBU LAXMI PRASAD v. DRAGAGES (HK) JOINT VENTURE DCEC 1227/2006

S’s words:-

The following case is not any interesting case at all.
What attracts me is that His Honour Judge Lok refuses to join in the debate to the deeming provision of Section 10(2) of the Employees’ Compensation Ordinance.
We have two line of cases for this issue and that forms the views of the judges in District Court.
At the same time, in fact, legal practitioners do form two views as well.
It is expected that those concentrating their works for applicants are in favour of the view of irrebuttable presumption. On the contrary, those legal representatives acting for insurers do suggest the otherwise.
The debate may go on until a date that such an issue is put to the Court of Appeal (and further probably the Court of Final Appeal) for consideration.

Personally, I support the view that the presumption is irrebuttable.
But when we read the article of Hong Kong Lawyer in the issue of October 2007, the author therein may support the otherwise.

--- quote from judgment ---

Date of handing down of Judgment : 24 October 2007

Based on the aforesaid findings, the Applicant has suffered no occupational disease or permanent injury as a result of the accident, and so he is not entitled to claim any compensation for permanent partial incapacity under s. 9 of the ECO. His appeal against the assessment of loss of earning capacity made by the Board in the Certificate also fails.

The Applicant has managed to obtain various sick leave certificates from Dr. Alfred Lo covering the period from November 2004 to September 2005, and the next issue I have to consider is therefore whether the Applicant, by relying on these certificates, is able to claim any compensation for temporary incapacity under s. 10 of the ECO.

There is some uncertainty as to the effect of the deeming provision in s. 10(2). On the one hand, we have cases which suggest that, in the absence of fraud, the deeming provision is conclusive about the period of sick leave for the purpose of calculating the compensation under s. 10. On the other hand, we have another line of cases which suggest that the deeming provision is rebuttable. A good summary of these two lines of cases can be found in the judgment of Deputy Judge Anthony Chow in Siu Fu Yau v. Wong Po Lee Limited & 0rs., unreported, DCEC No. 654 of 2003 (decision on 5 October 2006). Unless the interpretation of s. 10(2) is clarified by the higher courts, such uncertainty in the law will still continue to exist. But fortunately for our present case, it is not necessary for me to resolve this particular issue, and so I do not intend to add further confusion in this area of the law by giving additional view. It is clear that even for the cases which suggest that the deeming provision is irrebuttable, it is subject to an important provisio that there is no fraud involved. As I find that there was malingering on the part of the Applicant and that his complaint is not genuine, the court is entitled to disregard the sick leave certificates issued by Dr. Lo for the purpose of assessing the compensation for temporary incapacity under s. 10.

As the Applicant is not entitled to claim for any compensation under the ECO, his claim is dismissed. I also dismiss the Applicant’s appeal against the assessment made in the Certificate. On the other hand, the Respondent’s appeal is successful and I disallow the sick leave period stated in the Certificate from 27 October 2004 to 8 September 2005. Further, I make an order nisi that the costs of this action be to the Respondent with certificate for counsel, which would be made absolute 14 days after the date of the handing down of this judgment.