TSUI MAN CHEONG v. LEE HUNG YING VICKY t/a FEI TSUI TRANSPORTATION CO

DCEC 1290/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1290 OF 2008

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DECISION

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1.  The Applicant in these proceedings claims to have sustained personal injury by an accident arising out of and in the course of his employment by the Respondent. According to his Application filed on 23 October 2008, the accident took place on 23 November 2006, when he lost balance and fell in the course of delivering heavy goods by a trolley. The Applicant claims that as a result, he suffered injuries to his back.

2.  On 17 July 2009, the Applicant applied by Summons to amend the Application by including a plea of a further accident which took place on 30 October 2006 ("1st Accident"), prior to the date of the accident on 23 November 2006 ("2nd Accident") as originally pleaded in the Application and relied upon by the Applicant. He seeks leave to adduce further witness statements to describe the 1st Accident.

3.  Since the claim in reliance on the 1st Accident is time-barred by the time of the lodging of the Application on 23 October 2008, at the hearing before me on 17 September 2009, the Applicant by an amended summons further seeks leave under section 14(4) of the Employees’ Compensation Ordinance ("Ordinance") to receive and determine the Application beyond the 24 months specified under section 14(1) of the Ordinance.

4.  The issue before the Court is whether the Court is satisfied that, under section 14(4) of the Ordinance, there was reasonable excuse for the failure to make the Application within time.

5.  It is true that the power of the Court under section 14(4) should be exercised liberally (Chan Siu Wing v. Tonyear Investment Ltd. (t/a Kwan Shing Restaurant) [1999] 2 HKC 348, but the onus is on the Applicant to make out a case for extension of time. For this, the Applicant has to show that there was reasonable excuse operating for the whole period of delay.

6.  Ignorance of the law, of the right to claim compensation, or of the relevant limitation period is not an excuse. Nor will the Court assist a party who has slept on his rights.

7.  The Applicant in these proceedings is legally represented. It is not known when lawyers were first involved, but the Applicant and his lawyers apparently made a conscious decision not to make a claim until a week before the 2-year limitation period expired in October 2008. According to the Applicant, it was only when he was jointly examined by the doctors appointed by the parties in these proceedings in April 2009, and when he was asked about his health and any prior injuries before the 2nd Accident, that he mentioned the 1^st Accident to the doctors. He claims that he had forgotten about the 1st Accident before this, and had failed to mention it to anyone.

8.  Still, the Applicant failed to do anything after this jolted memory in April 2009. It was not until over 3 weeks later, when the joint medical report was issued and the Applicant was asked by his solicitors about the 1st Accident mentioned by the doctors, that the Applicant confirmed this to his lawyers. And it was not until another 2 months later that the Applicant's solicitors applied for leave to amend the Application, to include a claim on the basis of the 1st Accident. The Applicant only filed an affirmation 4 weeks later to proffer his explanation for the delay.

9.  Although I bear in mind that the Applicant's case is to be tested at trial, I have to be satisfied at this stage as to the credibility of the Applicant's explanation as to why the 1st Accident was not mentioned until April 2009, and whether there is a reasonable excuse for the failure to make an Application on the basis of the 1st Accident. I accept the submissions made on behalf of the Respondent that the Applicant's case on the 1st Accident is full of inconsistencies, to be credible.

10.  The Applicant claims in his Affirmation of 15 August 2009 that he had forgotten about the 1^st Accident until he was prompted by the doctors at the joint medical examination in April 2009. However, this is hard to believe when the hospital records show that when he first attended at the Accident and Emergency Department of Tuen Mun Hospital on 23 November 2006, his complaint was of upper and lower limbs numbness and weakness for one week, namely prior to the date of the 2nd Accident. If there had been a 1st Accident, one would reasonably expect the Applicant to recall this as he was able to recall and mention to the doctors at Tuen Mun Hospital the numbness and weakness a week before the 2nd Accident, some time shortly after the 1st Accident.

11.  In his witness statement filed on 30 January 2009 in relation to the original claim on the basis of the 2nd Accident, the Applicant stated that he enjoyed good health prior to the accident. By that time, of course, the  records from the Tuen Mun Hospital had already been obtained. The Applicant, and presumably his lawyers, had also obtained by then a letter dated 28 April 2008 from the Labour Department, in which the Applicant was informed that according to the medical reports collated by the Labour Department, he had suffered from numbness and weakness in his limbs for one week before 23 November 2006, there was no record of injury from any accident on 23 November 2006, and that there was insufficient medical evidence that the Applicant had sustained injury in the 2nd Accident. When the Applicant made his witness statement in January 2009, he must have been asked by his lawyers as to his medical history, and he and his lawyers should have been alerted to the stance taken by the Labor Department that there was no record of injury from the 2nd Accident. If there was indeed a 1st Accident, the Applicant should have thought about it and would have mentioned it to his lawyers.

12.  It seems to me more probable that rather than having forgotten about the 1st Accident, the Applicant had made a conscious and deliberate decision not to make any claim in relation to the 1st Accident. This decision was made when he had been alerted by the Labour Department's letter of the limitation period, and when he was legally represented.

13.  Counsel for the Applicant sought to argue that the reason for the Applicant 's failure to make a claim in relation to the 1st Accident was because of the mistaken or misleading diagnosis made by the doctors at the Tuen Mun Hospital, that the Applicant's injury "is compatible with presentation of myelopathic symptoms due to prolapsed cervical disc", whereas according to the joint medical report, the medical experts agree that the cervical spondylomyelopathy should be due to spontaneous deterioration as a result of degeneration rather than trauma.

14.  I consider that the facts of this case are distinguishable from the facts in Wong Chin Wah v. Varitronix Ltd. DCEC 1105/2005. This is not a case of the Applicant being diagnosed with a problem which is considered to be trivial or not serious, and not making a claim, but discovering at a later stage that the injury is in fact more serious, so as to justify making a claim for compensation out of time. The Applicant is not saying that he was misled by the doctors as to the effect of his injury caused by the accident. He is in effect saying that his injury is caused altogether by another accident.

15.  In any event, the Applicant must have a reasonable cause for the whole period of delay or failure to make a claim. Having deliberately chosen to be inactive for the first part of the limitation period until 23 October 2008, and then (even accepting the Applicant's explanation of having forgotten about the event) delaying 12 weeks to apply to amend after first being reminded of the 1st Accident, with a further delay of 4 weeks before offering an explanation for the delay, I consider that there is no reasonable excuse under section 14(4).

16.  I consider that this is not an appropriate case for the Court to exercise its discretion to receive the Application for the 1^st Accident, in view of the following :

(1) the absence, in my opinion, of a reasonable excuse for the whole period of inactivity;

(2) the fact that the 1st Accident appears, in the circumstances of the case, as if it were an after thought after the joint medical report; and

(3) as the Respondent claims, it suffers prejudice by reason of the fact that it can no longer retrieve relevant evidence relating to the alleged 1^st Accident.

17.  I accordingly dismiss the Applicant 's Summons of 17 July 2009, and the Amended Summons of 17 September 2009, with costs.