XCHRX Choy Hiu Ling v. New World Harbour View Hotel

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Employees' Compensation Case No. 467 of 1996

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Judgment

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Background

1. The applicant had been and was still at the time of hearing the employee of the respondent. She was a laundry worker at the hotel. On 8th August 1996, she brought the present proceedings against her employer for employee compensation in respect of injuries she sustained while at work in 1993. The time limit to bring these proceedings is two years and therefore she requires the leave of the court to bring these proceedings out of time. She included the application for leave in her Form 1, the originating application for employee compensation. At the call-over hearing on 18th September 1996, Judge Kwan ordered the following:

1) By 4 p.m., 30th September 1996, the Applicant do file and serve a statement setting out the reasons for her delay in lodging the application;

2) Leave for the Respondent to take out summons for the matter to be heard in Chambers (estimated time: half day);

3) The Application be adjourned sine die with liberty to restore;

4) costs in the cause.

2. The Applicant complied with the order by filing her statement on 30th September 1996. She applied for legal aid on 21st July 1997 and legal aid was granted on 29th August 1997. This was a second application for legal Aid. The first one was made in June 1966, the previous year, and was unsuccessful and the consequent appeal against the Director of Legal Aid's refusal was dismissed in August 1996. The present solicitors were assigned to her by the Director of Legal Aid and her solicitors filed a notice to act on 15th January 1998.

3. No step had been taken in these proceedings for over 33 months by the applicant or her solicitors since the filing of the statement of the applicant as ordered by Judge Kwan when the respondent took out the present summons to strike out the claim for want of prosecution on 28th July 1999. The application by the respondent was made on the usual basis that there had been inordinate and inexcusable delay by the applicant and her legal advisers, whereby prejudice had been or would have been caused to the respondent, and generally that in all circumstances justice could not be done and it would not be possible to have a fair trial of the action.

Accidents and Events Leading to the Commencement of Proceedings

4. In her statement and affirmation, the applicant gives the the following history of the accidents and the events thereafter. On 30th September 1993, she injured her left wrist while the trolley she was pushing rebounded on hitting something. It was this and only this accident that she pleaded in the originating application, Form 1. She did not think much of it at the time as she saw no wound and no bruise. She carried on working until the end of her shift. The injury then got worse and the next day she showed her red, swollen and painful wrist to his superiors and colleagues. Her supervisor suggested that she should see a bone setter. After consulting another supervisor, one Mr. Chow Chi Fai, and a manager, she went to see the bone setter recommended to her. Mr. Chow also promised to give her two days of sick leave.

5. On 4th October 1993, she returned to work. Apparently the treatment by the bone setter had not been effective and in the middle of her shift, she went to consult Dr. Yiu, the private doctor appointed by the respondent hotel. The doctor gave her one day of sick leave. As it was near the end of her shift, she finished her shift without taking the benefit of the sick leave granted to her. She thought the sick leave certificate was useless and tore it apart as suggested by Mr. Chow.

6. 0n 21st October 1993, while she was working folding some table cloths, she was attacked by a seizure of pain in her left arm, palm and thumb. Her co-worker, one Ms Liu Kwai Mei, witnessed this. The applicant showed her supervisors the condition of her left thumb which she could not flex fully. Mr. Chow, her immediate superior, showed no response and she continued with her work with the help of co-workers.

7. This time she took her injury more seriously. After consulting Dr. Yiu, and an orthopaedic specialist, Dr. Chang, she was eventually referred to Queen Marry Hospital by Tang Siu Kin Hospital.

8. She was discharged from hospital after declining the recommendation by the doctors to have an operation. On the following day, 25th November 1993, she returned to her work after attending follow-up treatment at Sai Ying Pun Clinic. She reported the matter to her department head, Mr. Miu, and insisted on making a claim for compensation.

9. Shortly after that adjusters, presumably engaged by the insurer, came to make enquires and interviewed the applicant. In the same year of 1993, she sought treatment in Shanghai. Thereafter she had on and off treatment in Hong Kong. As she heard nothing further about her claim she wrote to the management of the hotel on four occasions, once in 1993 and three times in the first four months of 1996. Apparently there was no response to her claim despite these letters.

10. On 11th April 1996, she attended her usual therapy session when the therapist prompted her to make enquiry with the Labour Department. On the same day, she learned from the Labour Department that the respondent had not made a report about her injury. She then applied for legal aid and was unsuccessful as aforesaid. Eventually she commenced the present proceeding in person on 8th August 1996.

Periods of Delay/Before Commencement of Proceedings

11. In her originating application, Form 1, only one accident was pleaded and it was allegedly took place on 30th September 1993. The incident on 21st November 1993 might well be regarded as a second accident in which she sustained further injury or just an ordinary incident in which her previous injury was aggravated. Whatever the case there was at least a delay of some 9 months when she filed her claim, as the limitation period is two years.

Ms. Sze, counsel for the applicant argued that the respondent misled the applicant into thinking that the procedure for application had been initiated. By the time she was prompted by her therapist to go to the Labour Department, she was already out of time. Therefore she contended that the delay of 9 months or so is excusable.

12. Ms Sze criticized the respondent for not reporting the accident to the Labour Department. She argued that by its conduct the respondent misled the applicant into believing that a report had been made to the Labour Department and therefore into waiting for compensation to her detriment. She relied on the following:

1. the applicant had done all that was required under the provisions of the respondent's employee handbook;

2. the respondent failed to inform the applicant that no report had been made to the Labour Department;

3. the respondent failed to advise the applicant to go to the labour department;

13. No doubt the handbook requires her to report the accident to the employer and it also contains an assurance that compensation will be paid on production of relevant sick leave certificates. It should be noted however that compensation referred to in such assurance is wages during sick leave and medical expenses. These items are not the main claim of the applicant. In fact she suffered no loss of wages during sick leave and she did not produce to the respondent any documents or quantify her claim for medical expenses, or for other items. Her main claim is for loss of earning capacity. She provided no materials upon which the respondent or its insurer for that matter could assess her incapacity. It is true that immediately after she applied for compensation, the respondent and the insurer had taken some actions investigating into the matter. These are normal and proper actions. Then there had been many months when no action was taken and no progress was communicated to the applicant. If the applicant believed throughout under these circumstances that the respondent would pay compensation for her incapacity, it would be an unreasonable belief. In the letter of 8th January 1996 to her employer, she disclosed that she wanted to handle her claim in a low profile manner and thus she refused a chance a year ago to seek assistance from a free-of-charge lawyer. That must mean by January 1995, she was not unaware of the other obvious alternative to waiting for voluntary compensation from the respondent. I find it was her conscious decision not to resort to the high profile alternative, i.e. taking legal proceedings. She so decided probably because of her worry about her job security with the respondent. Further she must have known by that time, whether or not the respondent had made a report to the Labour Department, it did not affect her right to take legal proceedings to pursue her claim.

14. In order to explain away the delay, the applicant was ready to put the blame on the respondent and others. In the matter of compensation, there is a conflict of interest between the applicant and the respondent or its insurer. Such conflict is obvious to her and to any reasonable person. There was no duty for the respondent to advise the applicant to go to Labour Department for advice. Indeed I do not believe that she was not aware of fact that she would get some assistance from the Labour Department in pursuing her claim. She refrained from going there earlier for the same reason as for refusing the assistance of a lawyer. She wanted to handle the matter in a low profile manner and she was worried about her job security.

15. She was given the address of the Legal Aid department by the Labour Department in April and she did not go there until almost two months later. She said it was because she had to work. This is unacceptable and unreasonable excuse on the material before me.

16. For all these reasons I cannot accept the submission of Ms. Sze that the delay of 9 months is excusable. The applicant took much too long a time to file the present claim and the delay, I find, is both inordinate and inexcusable.

Periods of Delay/Since Commencement of Proceedings

17. After filing her claim in this court, it took the applicant another 11 months to make the second application for legal aid. After legal aid was granted, neither the applicant nor her solicitiors had taken any step in the proceeding for 22 months, when the respondent took out the present summons.

18. It was the duty of the applicant to prosecute her claim. The fact that she could not afford a lawyer did not excuse her. In any event there was no good reason for her to delay seeking legal aid, especially after appearing before Judge Kwan, she was put beyond doubt that she was out of time when she filed the claim. 11 months for her to obtain legal aid is inordinate and inexcusable.

19. In her affirmation, Ms. Lau, the solicitor who handles the case, explains the delay. She says it is a complicated claim. She had to spent time taking instructions from the applicant with regard to her notification of injury to the respondent, medical evidence in support of the occurrence of an accident and evidence from eyewitnesses. She had to trace a number of witnesses. Some of them had left the employment of the respondent. Those who were still with the respondent were reluctant to testify or to give signed witnesses statements. She had to write to various hospitals and private practitioners for medical reports. In the meantime she was engaged in numerous telephone conversations with the other party with a view to settling the present claim and the potential common law claim together. Counsel was also assigned in August 1998. First conference with counsel was held about two months later in November and in which conference counsel advised that the best course was to begin negotiation. After a telephone conversation with the solicitors for the respondent on 24th November 1998, the applicant was advised to obtain an assessment by the Assessment Board. On a date which I was not told and which did not appear on the Certificate of Assessment, the applicant on the advice of her legal advisers attended the Assessment Board. The Certificate of Assessment came out in about March 1999. On 4th December 1998, an medical expert was also instructed and his report on the applicant was received on 23rd March 1999. Before that counsel had already given one advice, presumably a written one, in February 1999. The loss of earning capacity of the applicant was assessed by the Board and the expert to be 10% and 15% respectively. After these assessments, counsel gave further advice on 15th June. These assessments and counsel's advices were explained to the applicant in numerous conferences held in March, May, June, July and August 1999. Despite that the applicant gave instructions to proceed.

20. Ms. Sze argued quite boldly that the outstanding matter was for the respondent to take out the summons for the hearing of the limitation issue. This the respondent could have done. In deed leave was given to the respondent to do just that, but it is no incumbent upon the respondent to take up the leave. It is the primary duty of the applicant to pursue her claim with reasonable expedition and the respondent is entitled to "let the sleeping dog lie", to quote the remarks of Lord Salmon in a case cited to me: (Birkett V James (1978( A.C. 297 at 329). The failure of the respondent to take out the summons did not encourage or contribute in any way to the delay.

21. I also did not agree that the applicant and her legal adviser had done a lot in these 33 months. The claim is not that complicated. It should be noted that the applicant admitted in her application Form 1 (paragraph 3, particular 9)that no formal notice was given. She relied on particular 10 of the same paragraph for not giving the formal notice, namely that the respondent was aware of the accident. This contention, though has not been expressly admitted in the Answer, has not been denied or required to be put to strict proof. A legal adviser fully appraised of the issues of the case should not allow the investigation into this issue to delay the progress of the action.

22. The crux of the claim is that the applicant sustained injury on 30th September 1993 and that her partial incapacity was permanent. If the legal adviser see fit to rely on the second incident, they should take steps to restore the hearing and put the pleadings in order so that the other party had the earliest opportunity to deal with it, or put the other side on notice. None of these steps has been done.

23. In any event the main claim is for compensation for loss of earning capacity. The solicitors must have been made aware of this by the application, Form 1 filed by the applicant, and the applicant must have told them in the conferences. They should also know, and if they did not it would be inexcusable, that the basis of the claim is that the applicant suffered an incapacity of permanent nature. It is too obvious that medical evidence is vital, not just at the trial, but for the purpose of properly advising the applicant on the merit of the claim and on settlement. Ms Law said they wrote numerous letters to collect the medical evidence, quite rightly they should do that but only too late. She did not give me the dates. From the exhibits to her affirmation, the earliest date on these letters was 23rd July 1998. The conclusion I draw from the material before me is that they did not start seriously collecting medical evidence until at least 10 months had elapsed. The applicant could give a very good chronology of her history of treatment and it is not difficult at all to make a start to collecting such medical evidence. This delay of 10 months is materially longer than that usually acceptable by the profession or by the courts. No reason has been offered for this delay.

24. The applicant did not go to the Assessment Board until she was so advised in November 1998, 12 months after legal aid was granted and a medical expert was not instructed unitl December 1998. Without the benefit of these assessments, no useful negotiation can be conducted.

25. The delay in obtaining evidence from various hospitals and private practitioners and in obtaining assessment from the Assessment Board and the expert is inordinate and inexcusable.

26. After gathering all these medical reports and witnesses statements, I do not see any good reasons to delay taking further steps in this action. There is no good reason to take five months, from March to August, to explain to the applicant counsel's advice and these assessments. Even if she was not satisfied with the assessment so far, the applicant could apply for review which course she had taken.. There is no good reasons to hold up the proceedings for that purpose. The delay after taking counsel's advice and medical advice is both inordinate and inexcusable. This is so notwithstanding that there had been negotiation. There was no consensus not to proceed with the claim in court for the time being while negotiation was undertaken by both parties. The fact the respondent was willing to negotiate could not be held against it. The respondent and its solicitors did nothing to mislead the applicant's legal advisers to a false sense of security.

27. Other excuses were raised in the affirmation by Ms Lau and forcefully argued by Ms. Sze. Without disrespect, I find no merit in them.

28. Looking at all these periods of delay, I am satisfied that there has been inordinate and inexcusable delay in prosecuting this claim.

Prejudice

29. There was no eyewitness to the accident on 30th September 1993. No one could have seen the injury on that very day, as the applicant in her version of events said there was no wound and no bruise. The particular injury she sustained is consistent with the manner she said she had been injured. However, it is not unreasonable for the respondent to challenge her contention, in view of the nature of the injuries and the alleged manner the applicant sustained the same. The ultimate issue would be the credibility of the applicant. To challenge her credibility would be increasingly difficult as time passes by. Now that it would become a difficult task given the fact the alleged accident took place some 6 years ago. The chance of the respondent to have a fair trial has been prejudiced by the delay. Needless to say, lapses of memory of witnesses who could discredit the version of the applicant would further prejudice the respondent.

Conclusion

30. I am indebted to the careful analysis of the applicable law by Mr. Ismail and deeply impressed by the moving speech of Ms Sze. Needless to say, to strike out the claim would casue prejudice to the applicant who deserves sympathy of the court. However in the proper exercise of my discretion, the only course is to strike out the claim. I order that the claim be struck out for want of prosecution. I also make an order nisi for costs that:

1) costs of the action be to the respondent to be paid by the applicant to be taxed if not agreed;

2) costs of this summons be to the respondent with certificate for counsel to be paid by the applicant to be taxed if not agreed;

3) applicant's own costs be taxed according to the Legal Aid Regulations

The order nisi be made absolute in 6 weeks. There be liberty to apply.