LUI CHO YIN v. 雷健邦 AND ANOTHER

DCEC 832/2017

[2019] HKDC 1282

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 832 OF 2017

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DECISION

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A.  The joinder summons

1.  On 13 April 2017, the applicant, through his former privately engaged solicitors, Messrs Day and Chan (“Former Solicitors”), issued the present employees’ compensation application (“EC Application”) for compensation against Mr Lui, his employer (“Employer”).  It is claimed that on 16 May 2015, the applicant met an accident (“Accident”) and sustained personal injury arising out of and in the course of employment with the Employer whilst he was inspecting and replacing air ventilation ducts at Wing On Center, Connaught Road, Central (“Accident Place”).

2.  Section 14(1) of the Employees’ Compensation Ordinance, prescribes a time limit of 24 months for the bringing of proceedings for the recovery of employees’ compensation unless a court, pursuant to s.14(4), “is satisfied that there was reasonable excuse for the failure ... to make an application”. (Unless expressly stated otherwise, all references to statutory provisions in this Decision shall be references to provisions of the Employees’ Compensation Ordinance.)

3.  After the expiry of the 24 months’ prescribed time limit, the applicant changed solicitors twice – to Messrs John W. Wong & Co on 18 December 2017 and then to Messrs V Hau & Chow, Solicitors, the present solicitors, on 8 August 2018.  After the applicant changed to his present solicitors, it was alleged that Dah Fung Hong (Holdings) Company Limited trading as Dah Fung Service (“Dah Fung Hong”) was the principal contractor, and that Hong Kong Facility Solutions Company Limited (“HKFS”), was the Employer’s contractor.

4.  On 12 July 2019, this court, by consent, granted leave to the applicant to join, out of time, Dah Fung Hong as the 2nd respondent. However, the applicant’s application by summons issued on 24 December 2018 to join HKFS was opposed.  The said joinder summons was later amended by adding, in the margin note, a reference to s.14(4), and, in para [1], the additional words of “out of time” for the granting of leave to join HKFS.  (This amended summons will be referred to as the “Joinder Application” in this Decision.)

5.  At the hearing of the Joinder Application, the applicant and HKFS were respectively represented by counsel, Ms Josephine Tjia (the Legal-aid assigned counsel), and Mr Brian Tsui.

B.  The excuses

6.  In the Joinder Application, the applicant filed a supporting affirmation dated 24 December 2018 and a reply affirmation dated 8 August 2019.  In addition, the applicant also relied on the affirmation of Gary Hau (a partner of the present solicitors) dated 9 April 2019 filed in support of the applicant’s summons to join Dah Fung Hong.  HKFS opposed the Joinder Application by filing an affirmation of its director, Lee Ying Siu.

7.  By the time of the hearing, HKFS confined its objection to only one ground, which is the objection that the applicant had no reasonable excuse for the delay in the joining of HKFS within time.  Hence, it is convenient to firstly outline the excuses the applicant relied on for his delay.

8.  Before going into the details of the applicant’s excuses, I need to firstly mention four written notices of the Accident in Chinese given to the Labour Department as they will be prominently featured in the applicant’s explanation for the delay.

9.  Chronologically, the first two notices were notices of “An Injured Employee’s Notification of Accident”, respectively dated 21 January[1] (“1st Notification”) and 21 December 2016[2] (“2nd  Notification”), which were both signed by the applicant. The 1st Notification was submitted by the applicant in person, and it only contained the name and contact telephone number of the Employer.  The 2nd Notification was prepared and submitted by the Former Solicitors.  The Former Solicitors added more information to the 2nd Notification, which had the additional information of the Employer’s address, and most importantly, the name and address of HKFS, which was named as the principal contractor.

10.  The other two notices were given by the Employer to the Labour Department, using the standard form 2, “Notice of Accident”, by an employer to give notice of an accident.  The Employer submitted two forms 2 within a space of about a week. After he submitted a Form 2 dated 15 February 2017[3] (“ Original Form 2”), he submitted an amended Form 2 (“Amended Form 2”) on 22 February 2017[4].  In the Amended Form 2, the Employer deleted all the information relating to HKFS as the principal contractor that he had originally provided in the Original Form 2.

11.  After outlining these four notices, I should now briefly discuss the applicant’s excuses.  According to the evidence he filed, before the Accident, he had worked for the Employer for 3 years and knew that HKFS contracted works to the Employer.  At the Accident Place, he had seen the workers of HKFS as well as equipment bearing HKFS’ company logo.

12.  Notwithstanding the said knowledge about HKFS, the applicant however had limited information of the exact relationship between the Employer and HKFS. Hence, when he submitted the 1st Notification in person, he could not provide any information on the principal contractor.  

13.  After he engaged the Former Solicitors around August or September 2016, he told them what he knew about HKFS as stated in para [11] above.  However, he did not know that the Former Solicitors submitted the 2nd Notification though he could recognize his signature in the 2nd Notification.  Apart from the 2nd Notification that he had no knowledge of before the present solicitors showed it to him, the applicant also had never seen the Original Form 2 or the Amended Form 2 until around August 2018 when they were shown to him by the present solicitors.

14.  Apart from being ignorant of the existence of those documents referred to the above, it was averred that the applicant also did not know that the EC Application was only brought against the Employer without the principal contractor, HKFS, as a second respondent when it was issued.  The applicant believed that the reasons for the oversight might have been due to the deletion of HKFS in the Amended Form 2, which might have misled the Former Solicitors.  The applicant also alleged that the Former Solicitors had failed to advise him of the necessity of joining HKFS when the EC Application was issued.

15.  Another excuse the applicant put forth was the alleged delay of HKFS in responding to the requests made by the present solicitors for information.  It was stated that despite the requests the present solicitors made to HKFS by letters respectively dated 3 and 13 September 2018[5] for information in respect of, among others, the work that the applicant undertook at the material time of the Accident, HKFS only confirmed through its solicitors by letter dated 11 February 2019, the sub-contracting relationship between the Employer and  HKFS.

C.  Are the excuses reasonable?

C.1  The applicant: there are reasonable excuses

16.  Miss Tjia originally set out in her written submission altogether 5 excuses that she submitted as reasonable.  At the hearing, she no longer relied on the third excuse.  The remaining 4 excuses are as follows.

17.  First, the applicant’s lack of knowledge.  The air-conditioning maintenance industry is characterized by multiple sub-contractors.  It is therefore suggested that the applicant, as a mere employee, could not have been expected to have knowledge of the identity of the Employer’s business and his relationship with his contractor. 

18.  Second, the Employer’s blatant disregard of the requirement of s.15 (1A), (which obliges an employer to give notice of an accident to the Commissioner of Labour within 15 days) in only reporting the Accident, nearly 21 months after the Accident, had deprived the applicant of the protection in the ECO that serves to provide an injured employee information essential (such as information about the principal contractor in the present case) for the pursuit of a compensation claim. 

19.  Third, by deleting HKFS as the principal contractor by the Amended Form 2 when the limitation period was about to expire, the Employer effectively denied the existence of any subcontract arrangement. This has misled the Former Solicitors.

20.  Fourth, HKFS’ unresponsive attitude. HKFS’ confirmation of the subcontracting arrangement between HKFS and the Employer was given only dilatorily 6 months after the present solicitors made more than one request to HKFS.

21.  In spite of the applicant’s clear laying of blame on the Former Solicitors for the delay, Miss Tjia was however at pains to deflate the Former Solicitors’ default for not pursuing HKFS when issuing the EC Application.  In an attempt to exculpate the role of the Former Solicitors, Miss Tjia made some bold guesses in stating that the omission might have been due to the exercise of prudency or due to the different tactics the Former Solicitors and the present solicitors used.

22.  Ultimately, the delay was not caused by the Former Solicitors, Miss Tjia submitted, but by the intentional withholding of information on the part of the Employer and HKFS.

C.2  HKFS:  no reasonable excuses

23.  Mr Tsui contended that none of the excuses the applicant has provided was reasonable in explaining the failure to claim against HKFS when the EC Application was issued or for the further delay in the issuing of the Joinder Application.

24.  Since the applicant has verified the EC Application by a statement of truth, it was contended that the applicant could not shift his own fault to the Former Solicitors.  Even if the fault was solely on the part of the Former Solicitors, Mr Tsui stated that the applicant could not rely on their conduct to excuse the delay.  Hence, the excuse on the account of the Former Solicitors’ conduct, Mr Tsui argued, is untenable.

25.  The excuse on the ground of the applicant’s alleged lack of knowledge of the contracting relationship between the Employer and HKFS, Mr Tsui contended, was even more disingenuous.  Since the 2nd Notification was evidently in possession of the applicant or the present solicitors, it was however only disclosed in his reply affirmation.  This late disclosure, it was suggested, is indicative of the applicant being economical with the truth.  Mr Tsui argued that the applicant’s said conduct suggested that he had more knowledge of HKFS than he wanted to admit. 

26.  As for HKFS’ alleged delay in confirming its role as the Employer’s contractor, Mr Tsui stated that the said allegation is a red-herring.  Given that the applicant was able to issue the Joinder Application before the HKFS’ confirmation in February 2019 of its relationship with the Employer, the alleged delay, it was contended, had little bearing on the applicant’s reason for the delay.

D.  Discussion

D.1  Relevant Legal Principles

27.  The relevant legal principles are not in dispute.  Relevantly, the power of the court under s.14(4) should be exercised liberally, but the onus is on the applicant to show the existence of reasonable excuse for the whole period of delay[6]. When determining what constitutes “reasonable excuse”, a court should now be guided by the various non-exhaustive list of factors stated in the Court of Appeal decision of  Tsang Loi Fat v Sun Fook Kong [7], which decision this court has previously applied in, for example, Hong Chuk Tak v Yip Kan Kee Contracting Co Ltd.[8]. Factors such as the age, education level and the personal background of an injured employee; and the sufficiency of knowledge a claimant has for the bringing of a claim are among the factors a court should, in a suitable case, take into consideration.

28.  Applying these broad guidelines, I now discuss below whether the excuses the applicant put forward are reasonable.

D.2  The applicant’s lack of knowledge

29.  The alleged lack of knowledge needs to be considered in two stages. The first stage is when the EC Application was issued (on 13 April 2017) and the next stage is when the Joinder Application was made (on 24 December 2018).

30.  When the EC Application was issued, both the applicant (by the 1st and the 2nd Notifications) and the Employer (by the Original Form 2 and the Amended Form 2) had already given notices of the Accident to the Labour Department. The applicant’s evidence also suggested that the Former Solicitors had knowledge of all these Notices.

31.  Since the 1st Notification only contained very little information limited to the name of the Employer and his contact mobile number, I’d be inclined to accept that the applicant, at that stage, had very little information about the principal contractor.

32.  However, by the stage when the 2nd Notification was submitted on 21 December 2016, in which information of HKFS as the principal contractor was stated, I believe that the applicant or the Former Solicitors had sufficient evidence to issue the EC Application against HKFS as the Employer’s contractor. As it cannot be disputed that the applicant or his solicitors had the 2nd Notification in their possession, I also find it inexplicable that he only disclosed this so late in the reply affirmation.  This may indicate that the applicant might have wanted to withhold this document had HKFS not alluded to it in its affirmation in opposition. 

33.  Whilst the Employer was indeed late in the giving of the notice of the Accident, I reject the applicant’s attribution of the delay to the Employer. In my view, had the Former Solicitors been more prudent, they should have taken steps to carry out their own inquiries in order to find out whether the deletion of the HKFS amendment in the Amended Form 2 the Employer made shortly the filing of the Original Form 2 could be relied on.  Since the applicant has not filed any evidence from the Former Solicitors, the applicant’s assertion that the Former Solicitors were misled by the deletion in the Amended Form 2 is mere conjecture only. I am not satisfied that it constitutes a reasonable excuse.

34.  After the EC Application was issued, the applicant, as discussed in para [3] above, changed solicitors twice.  The Joinder Application was only issued after 20 months by the present solicitors.  Whilst prompt action seems to have been taken by the present solicitors by their writing to HKFS for information shortly after they were engaged by the applicant, I agree with Mr Tsui that the information from HKFS was not needed in order that the Joinder Application could be issued.  

35.  The excuse on account of HKFS’ delay now stands rejected, I find no other explanation for the 20 months’ delay for the applicant to issue the Joinder Application.  In the circumstances, the applicant has failed completely to provide any excuse for the delay in the issuance of the Joinder Application.

D.2  The allegation against the Employer

D.2.1  Non-compliance with s.15 (1A)

36.  Miss Tjia’s complaint of the Employer’s failure to comply with the requirement of s.15 (1A) is valid.  The Employer only submitted the Original Form 2 only 21 months after the Accident, instead of within the statutory required period of 14 days.  I however do not accept Miss Tjia’s submission that the Employer’s lateness has deprived the applicant of statutory protection.  I believe the statutory protection Miss Tjia referred to was the information of the principal contractor required to be provided by an employer when giving notice of an accident.

37.  Miss Tjia’s allegation might have carried more force were the 2nd Notification disclosing the information of HKFS as the principal contractor never submitted or submitted only after the Original Form 2 was available.  This is not the case here.  The Employer’s lateness had not materially adversely impacted on the applicant in relation to the information of HKFS.  Hence, I do not consider that late submission of the Original Form 2 by the Employer constitutes reasonable excuse.

38.  In rejecting the applicant’s excuse on the ground of the Employer’s breach of s.14 (1A), I ought to mention the provisions of s.24(3).  An injured employee, pursuant to these provisions, is entitled to “issue a written request to the sub-contractor [i.e. the Employer in the present case] to supply to the employee [the applicant] the name and address of the principal contractor”. Were it be the case that the applicant did not have any information of HKFS, the applicant could had resorted to s.24(3) by issuing a request to the Employer, who shall be required, pursuant to s.24(4), “within 7 days after the date of issue of a written request… (a) supply to [the applicant] the name and address of the principal contractor; and (b) deliver a copy of the written request to the principal contractor”.

39.  Evidently, the applicant had no need to use the power under s.24(3) as he or the Former Solicitors already had the requisite information of HKFS.  The availability to the applicant of the s.24 power, in my view, further undermines Miss Tjia’s allegation of statutory deprivation.

D.2.2  Deleting HKFS as the principal contractor in the Amended Form 2

40.  It is alleged that as a result of the deletion of HKFS in the Amended Form 2, the Former Solicitors were misled into believing that HKFS was not the principal contractor.  In the absence of any evidence from the Former Solicitors, I do not, as stated above, consider that this can amount to reasonable excuse.  In fact, the evidence shows that the applicant and/or the Former Solicitors already had the requisite information of the principal contractor to allow the applicant to issue the EC Application against HKFS.

D.3  HKFS’ unresponsive attitude

41.  The HKFS’ alleged unresponsiveness, as I have already discussed above, is not a valid reason for the delay given that the applicant already had sufficient information in relation to HKSF.

42.  Hence, I am unable to accept this excuse as a reasonable excuse.

D.4  The fault of the Former Solicitors

43.  The applicant in both of his supporting and reply affirmations alleged that the Former Solicitors had failed to advise him of the necessity of joining HKFS when issuing the EC Application on his behalf.  He was not informed that HKFS was not pursued when the EC Application was issued.

44.  It is clear, from the above allegations, that the applicant blamed the Former Solicitors for the delay.  It is plain that the oversight of the Former Solicitors put forward by the applicant is the main reason for the delay in the pursuing of the claim against HKFS.  As it is trite, that the default of a party’s legal representative cannot constitute reasonable excuse, Miss Tjia was at pains to play down the responsibility of the Former Solicitors in her submission by making surmises that I have discussed in para [21] above to exculpate their default.  In the absence of evidence from the Former Solicitors, I find it impossible to accept these conjectures suggested by Miss Tjia.

45.  I am also unable to accept Miss Tjia’s suggestion that the deletion of HKFS by the Employer in the Amended Form 2 justified the leaving out of HKFS in the EC Application proceedings.  It should be borne in mind that the naming of HKFS as the principal contractor by the Former Solicitors in the 2nd Notification was not based on any information provided by the Employer but on the knowledge the applicant had about HKFS.  In the absence of any explanation from the Former Solicitors, I tend to believe that the Former Solicitors were not acting, contrary to Miss Tjia’s submission, prudently in relying on the Amended Form 2 when issuing the EC Application.  

46.  Conjectures aside, the applicant cannot rely on the fault of the Former Solicitors to excuse the delay.

E.  Conclusion and order

47.  After having carefully analyzed the applicant’s evidence and considered his explanation for the delay liberally, I am not satisfied that the applicant has discharged his burden that there is reasonable excuse for the 19 months’ delay in pursuing HKFS.

48.  It is regrettable to note that the delay appears to have been substantially brought about by the Former Solicitors.  Nonetheless, I should not, for the reasons stated above, excuse the applicant on account of the unsatisfactory conduct of the Former Solicitors. In conclusion, I reject the Joinder Application and dismiss the amended summons. 

49.  I order the applicant’s summons as amended be dismissed and the applicant do pay, on a nisi basis, the costs of the summons with certificate for counsel, to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.  This costs order nisi do stand absolute if no application is made to vary it within 14 days of the handing down of this Decision.

50.  Lastly, I wish to thank both counsel for their industry in their detailed research for the authorities.  I have considered all the authorities counsel cited in their submissions but have not, for the sake of brevity, listed them all in this Decision.  It may be convenient to repeat what I have previously stated in Hong Chun Tak (ibid) at [18] that the determination of what constitutes “reasonable excuse” under s.14(4), is fact-sensitive.  A previous determination by a court may not assist the court’s exercise of discretion.