XCHRX YU HAO JAN v. WAN YUEN KONG t/a LUEN HOP METAL CO.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 784 OF 1998

____________

_________________________________

REASONS FOR DECISION

_________________________________

1. On 28th November 1996, the Applicant suffered personal injury as result of an accident arising out of and in the course of his employment with the Respondent. He was assessed by the Employees' Compensation (Ordinary Assessment) Board to have suffered 2% loss of earning capacity. He was dissatisfied with the assessment and as advised by a staff of Labour Department in Kwai Chung he sought a review. In due course he attended the Board again for a review of the assessment. The Board confirmed the original assessment in a certificate dated 1st April 1998. He then received a Certificate of Compensation Assessment dated 3rd April 1998 whereby he was assessed to have compensation in the amount of $70,396.27, which amount he subsequently received.

2. According to the Applicant, he was dissatisfied with the decision of the review and went to the Labour Department in Kwai Chung again. There he was told by a lady staff that the review was final and he could not appeal any further. The matter rested there until early July 1998 when the Applicant's aunt arranged a free legal consultation for the Applicant. In early August, the Applicant consulted Mr. Paul Cheng who advised him to seek legal assistance from the Legal Aid Department.

3. After a week or so, the Applicant went to the Legal Aid Department and was arranged to have an interview on 18th August 1998. He was issued a legal aid certificate dated 11th September 1998 which granted him legal aid for the purpose of instituting proceedings in the District Court to claim employees compensation for the injuries sustained on 28th November 1996.

4. That certificate was received by his assigned solicitor, Mr. Lee, on 16th September 1998. At that stage, he still had 14 days to lodge an appeal against the Certificate of Review of Assessment. According to Mr. Lee's affirmation, after perusing the papers he noted that the certificate was issued on 1st April 1998 and was aware that he had limited time to file an appeal. Mr. Lee, quite properly, decided to have a conference with the Applicant before filing the appeal.

5. Mr. Lee issued a letter dated 18th September to the Applicant. He also telephoned the Applicant but could not reach him. In the meantime, on 21st September, Monday, the Applicant received Mr. Lee's letter. However, he only contacted Mr. Lee on the following day, 23rd September, and attended the conference on 28th September. The Applicant explained that the delay was because he had to obtain leave of absence from his employer.

6. Mr. Lee took the view that a medical report in respect of the medical condition of the Applicant was essential for him to determine whether to file the appeal. he wrote to the Director of Legal Aid to request for examination of the Applicant by a medical expert. The Applicant was eventually examined on 22nd October and a report was available on 29th October, assessing the Applicant to have suffered 15% loss of earning capacity. Thereupon, Mr. Lee filed an application for employees' compensation on 30th October 1998. By then the application was one month out of time.

7. Under section 18 of the Employees' Compensation Ordinance, an appeal against the assessment shall lie to the District Court but no appeal shall lie after the expiry of six months from the date of the assessment. However, the Court has jurisdiction to extend the time within which to appeal. Unlike section 14 which provides for making application under the Ordinance, there is no requirement for reasonable excuse for failing to make the application within time.

8. Be that as it may, it must be recognised that employees' compensation is a statutory claim. The Ordinance has provided a comprehensive framework for making a claim and challenging an assessment. The scheme of the Ordinance is to seek to arrive at an administrative solution to claims of this nature. It has an elaborate structure, starting with the Commissioner, then either an Ordinary Assessment Board or a Special Assessment Board under sections 16D and 16E; and then with review procedures at the instance of the party under section 16G or on the Board's own motion under section 16GA, together with the time limit within which such review may be made. In CHUNG Lung Shun and Adams Parking (International) Limited, Civil Appeal No. 160 of 1995, Godfrey J.A. said:

"A scheme such as this can work properly only if time limits are imposed for the taking of such steps as may be necessary to see that its provisions are effective. The law frowns upon stale claims, and it is plainly important that this sort of legislation should prescribe time limits within which the employee must take the various steps necessary to prosecute his claim. In the case of the present scheme, such time limits are indeed prescribed."

Godfrey, J.A.'s dicta emphasised the importance of adhering to the time limit prescribed by the Ordinance. Thus despite the wide discretion I have under section 18, I still have to be satisfied that there is some reasonable excuse for the delay before I may grant leave to appeal against the certificate out of time.

9. On the facts, the Applicant has taken four and half months before applying for legal aid from the Legal Aid Department. He said he was told by a staff of the Labour Department that the result of the review was final and he allowed the matter to rest until his aunt arranged a free legal consultation for him. I do not accept that he has been misled by a staff of the Labour Department. On his own affirmation, he received proper advice from the department to seek a review against the first assessment within 14 days, which he did. I do not believe that when he enquired from the Labour Department on how he could appeal against the Certificate of Review of Assessment he would be wrongly advised that the assessment was final and he could not appeal. The rights to appeal against the first assessment or the review of assessment must be matters thoroughly known to the staff of the Labour Department whose duty was to advise parties of the correct procedures to prosecute their claims for employees' compensation. In fact there is a note at the bottom of the two certificates marked as "IMPORTANT NOTE" in both English and Chinese advising the recipient of the right to seek a review of the assessment within 14 days or the right to appeal to the District Court within six months. The note at the bottom of the Certificate of Review of Assessment reads:

"IMPORTANT NOTE:

Under section 18(1) and (2), an appeal against this assessment may be made to the District Court within 6 months from the date of issue of this Certificate."

I think the Applicant has knowledge of his right to appeal to this Court and the time limit within which he may prosecute his appeal.

10. In any event, he managed to apply for legal aid when he still had one and half month's time to file an appeal. His application for legal aid was processed rather expeditiously and he was assigned a solicitor on 11th September. His solicitor took reasonable steps to contact him and he had an occasion to speak to Mr. Lee on 23rd September, when he then only had 7 days to file the application.

11. According to Mr. Lee's affirmation, he was aware of the urgency of the matter and that time would expire on 30th September. He received his papers on 16th September with a copy of the Certificate of Review of Assessment dated 1st April 1998. He had a legal aid certificate which grants the Applicant legal aid for the purpose of instituting proceedings in the District Court. As the Applicant has already received his compensation, to institute proceedings in the District Court must necessitate an appeal against the Certificate of Review of Assessment. It would have been appropriate for Mr. Lee to file the application for employees' compensation after he has had a conference with the Applicant on 28th September.

12. However, Mr. Lee, being fully aware of the time limit, chose not to file the application within the time limit but to seek instruction for a medical examination of the Applicant. Mr. Lee explained that he was concerned about the costs aspects of the application and would only file an application of employee's compensation if satisfied that the Applicant had a case. I do not think that is correct. He has instructions to institute proceedings and he was aware of the time limit. In deciding to defer filing the application until after he has obtained a medical report, he was making a conscious decision to ignore the time limit under the Ordinance.

13. In my view, Mr. Lee's costs consideration is incorrect. He could have filed an application and at the same time obtain a medical opinion. If the medical opinion is against the Applicant, he could then withdraw the application, and hopefully with no order as to costs if he could do so before the call over hearing. On the other hand, if the medical opinion is in favour of the Applicant as it turned out to be, he will face the burden of having to obtain leave to appeal out of time and run the risk that leave will not be granted.

14. I adopt the dictum of Mansfield, CJ, in Pascoe v. The Nominal Defendant (Queensland)(no. 2), [1964] Queensland QD 373, where he held a "reasonable excuse" meant a cause which a reasonable man would regard as an excuse, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man. Having applied my mind to this test and having considered all the circumstances, including the Applicant's own delay and the deliberate conduct of his solicitor, I am not satisfied that the Applicant has any reasonable excuse for the delay. Accordingly, I dismiss his application with costs to the Respondent while the Applicant's costs are to be taxed in accordance with Legal Aid Regulations. I do not think this decision is unfair to the Applicant. He is deprived of his statutory remedy because of his own delay, for which he only has himself to blame. He may still institute common law action against his employer or against the Director of Legal Aid.