WONG KWAI LUNG v. MAN YUEN CONSTRUCTION ENGINEERING CO. LTD.

DCEC501/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 501 OF 2002

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RULING

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1. The applicant, by an Application filed on 7 June 2002 ("the Application") claims employee's compensation for personal injury arising out of an accident arising out of and in the course of his employment with the respondent on 3 December 1999. He also applies for leave to bring the matter before the court under section 14(4) of the Employees' Compensation Ordinance ("ECO"), and for extension of periodical payments under section 10(5) of that Ordinance.

2. The respondent, by a summons dated 6 August 2002, applies to have the Application struck out as being frivolous or vexatious and an abuse of process, on the ground that it sets up a cause of action which was barred by section 14 of the Ordinance, or alternatively that that issue be tried as a preliminary issue. The applicant, by a summons dated 7 August 2002, repeats his applications under section 14(4) and 10(5) of the ECO. On 8 August it was ordered by consent that both applications be heard together.

3. The applicant claims that while he was working on the respondent's construction site on 3 December 1999, he hit a nail with a hammer in order to take it out of a plank of wood, when the nail or part of it flew off and hit him in the right eye, rupturing the eyeball and causing loss of eyesight.

4. It is not in dispute that the applicant had four eye operations in all, on 3 and 10 December 1999, 10 August 2001 and on 25 March 2002. He was on sick leave from the date of the accident until 29 January 2002. He went back to work on full pay until 9 August 2001 when he went off work for the third operation, and remained on sick leave for two days. He had some odd days of sick leave in the months from September 2001 to February 2002 but was otherwise working for the respondent on his full daily wage. However from 3 March 2002 the respondent gave the applicant no more work and paid him no more periodical payments. The applicant however has sick leave certificates for the periods from 21 June to 31 July and from 1 August to 19 August 2002.

5. The only medical report before me is one dated 27 September 2002 by a Dr. Ng Sin Yee of the Opthalmology Department, Queen Mary Hospital. The report says that the corneal perforation was repaired on the day of the accident, with lensectomy. Then on 10 August 2001 a corneal transplant and secondary intra-ocular lens insertion was performed. There was raised intra-ocular pressure and a further operation for trabeculectomy was performed on 25 May 2002. When seen on 24 September 2002 the applicant was able to count fingers using right eye vision, his intra-ocular pressure is controlled and the transplant showed no sign of rejection.

6. The applicant has not been assessed by the Assessment Board. A letter from the Labour Department dated 31 July 2002 shows that the attending doctor had advised that the condition had not yet stabilised. However it seems from the medical report that the applicant's vision in the right eye is seriously impaired and there will therefore probably be a permanent disability.

7. The Application should by section 14(1) of the ECO have been filed within 2 years of the date of the accident, i.e. by 3 December 2001. It is over 6 months out of time. Section 14(4) provides that the court may receive and determine any application for compensation notwithstanding that the application has not been made in due time, if it is satisfied that there was reasonable excuse for the failure to make an application. Following the majority decision in Chan Siu Ling v Tonyear Investment Ltd., CACV 216 of 1998 the time limit applies to an application under section 10(5) as it does not an application under section 14(1).

8. The leading case in Hong Kong on what is a "reasonable excuse" is Wong Man Tak v. Shaws & Sons Limited [1957] HKDCLR 85. In that case, Judge Charles said:

"The numerous authorities upon that phrase show that a cause for failure to make a claim within the prescribed period was reasonable, and therefore excused the failure, if it were: --- a reasonable belief on the part of the applicant that his injury was trivial; or a mistaken diagnosis of his injury; or a belief in the applicant that a claim for compensation was unnecessary, when the belief had been induced by the employer in such circumstances as reasonably warranted it; or the inability of the applicant to transact business because of his injury."

"The principle to be deduced from the foregoing is, I think, that an applicant has a reasonable excuse for not making an application to the court for compensation within the prescribed time if his failure were due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part."

9. Put briefly the applicant's case is that he did not file his Application in time, because he was confused about the legal requirements and in particular the time limit. This confusion seems to have arisen out of communications between the applicant's wife and a Miss Chan of the Labour Department.

10. According to the applicant Miss Chan in the beginning told his wife that his claim might be settled without going to court, and he should attend the Occupational Medical Unit for assessment. However he did not attend, because his attending doctor told him to wait until his condition stabilised.

11. The applicant received a letter dated 3 August 2001 from the Labour Department; this is the standard letter of advice sent to claimants and its certified translation is in these terms:

Important matters relating to Employee's Compensation

Name of the injured employee: Wong Kwai Lung

Date of the accident: 3 December 1999

In accordance with the requirement under Section 14(1) of the Employees' Compensation Ordinance, should any work injury cases could not be settled through the means of "method of direct settlement", "certificate of assessment of compensation" or "agreement between employer and employee", and if the employee still intends to pursue (the claim), (he) should, within 24 months after happening of the accident, lodge an application with the District Court for work-injury compensation. Should it be out of time without reasonable explanation being given, the court may refuse to handle (the application).

(2) In accordance with the requirement of Section 10(5) of the Employees' Compensation Ordinance, in any work injury cases occurred on or after 151 February 1995, if an employee obtained sick leave as a result of his work injury, and until after 24 months, he is still obtaining (sick) leave, then (he) may apply to the court for extension of the time limited for receiving periodical payment (the longest period not exceeding 12 months). Unless court permission is obtained, the employee has no right to receive periodical payments for a period exceeding 24 months.

Our Division now wishes to know your latest situation subsequent to your work injury so that the most appropriate assistance could be offered to you, to apply to court for compensation in time. To protect your right and interest so as to avoid losing entitlement for obtaining compensation due to out of time, please contact our staff within 14 days after issuance of this letter.

12. The applicant says that he did not pay much attention to the first paragraph, because he had been told that the matter could be settled without court proceedings, and he was in any event then receiving periodic payments. As to the second part he says that he misunderstood the provision as explained in the letter; he thought that he could receive periodic payments for a cumulative period of 24 months, before he had to make application for extension, and he was well within that period. So he took no action.

13. On 26 October 2001 the plaintiff again spoke to the Labour Department about his case. A male officer advised him to proceed with the matter as soon as possible, and to seek assistance from the Legal Aid Department. This he did. He lodged an application for legal aid and was told to come for interview on 5 November 2001. However, the same night, his wife told him that she had spoken to Miss Chan at the Labour Department who had assured her that the case could still be settled within the 2-year period. Acting on this, he withdrew his legal aid application the next day.

14. The applicant then received another standard letter from the Labour Department dated 31 October 2001, for his signature. It is a confirmation letter to the effect that the employee has had explained to him and understood the requirements of sections 10(5) and 14(1) and that notwithstanding that the accident occurred nearly 2 years ago, he still "desires to solve the problem relating to compensation through the Labour Department and proposes not to make an application to court". The applicant signed this confirmation and returned it to the Labour Department. His evidence is that he understood that he could still resolve the matter with the help of the Labour Department notwithstanding that the time was coming close to the limitation period.

15. The applicant says that his wife continued to check progress with the Labour Department on his behalf, but there was none. Then in April 2002, Miss Chan called him, and advised him to apply for legal aid. This he did, but his application was refused on the ground of means. In June 2002 he sought the advice of solicitors and filed his Application.

16. There is no evidence from Miss Chan of the Labour Department but a letter from that department to the respondent's solicitors, dated 28 August 2002 shows that according to the department's records:

1. The standard advice letter regarding sections 14(1) and 10(5) was originally sent to the applicant on 6 June 2001. The provisions were further explained to the applicant's wife and the applicant on the telephone by Miss Chan on 6 and 7 June.

2. The same letter was issued on 3 August 2001. On 7 September Miss Chan telephoned the applicant to remind him of the provisions, but he claimed that he could not make the decision, as his sick leave did not exceed 24 months.

3. The applicant's wife telephoned the Labour Department on 27 October 2001 to advise that the applicant would not lodge his claim with the court. She spoke to a Mr. Ip, Miss Chan being absent from duty that day.

4. The applicant later submitted his confirmation dated 31 October 2001.

5. The applicant's wife approached the Labour Department in April 2002 claiming that the respondent was refusing to pay sick leave exceeding 24 months. The provisions were again explained, and she requested referral to the Legal Aid Department. However later the applicant asked for referral directly to the Registrar of the District Court.

6. Labour Department officers never told the applicant or his wife that the matter could be settled without the need for going to court. They were explicitly informed of the provisions on several occasions.

17. Not surprisingly, the respondent says that the applicant cannot have a reasonable excuse for not filing the Application in time. It is argued that he well knew the provisions. He could have issued proceedings in time if he had wanted to.

18. The respondent also argues that he is prejudiced by the lapse of time in that he can no longer find the worker who was working with the applicant at the time of the accident. I do not think there is much force in this argument; the respondent seems to have accepted, in the Form 2, that the accident happened as the applicant says. It seems unlikely that there would be any other explanation for a worker getting his eye put out by a nail, than that he hit the nail with a hammer and a piece flew off it into his eye. Of course there may be other possibilities such as horseplay but one would have thought that the respondent could have investigated that at the time.

19. The applicant's solicitor says that the standard letter is so phrased in Chinese that it is capable of being interpreted as they applicant says he interpreted it, namely that he could be paid periodic payments for a cumulative period of two years before he had to apply to the court for extension. I do not know if this is right; the applicant's solicitor no doubt knows his own language but he cannot give evidence as an expert on it. I would say from reading the translation of the last sentence of the first paragraph,

"Should it be out of time without reasonable explanation being given, the court may refuse to handle (the application)"

that that part might be better worded. It should make the position clear, that should the application be made out of time, the applicant must show a reasonable excuse for it, otherwise the court will (not may) refuse to handle it.

20. That said, as far as I can see from the translation, the letter does make it quite clear that the application is to be filed within 24 months after the accident otherwise there is at least a risk that it will not be handled. Further, the confusion which the applicant claims seems to relate to the question of when an application had to be made for extension of periodic payments rather than when the application had to be made for compensation.

21. If the applicant was indeed confused, and mistakenly believed, because of something that he had been told by an officer of the Labour Department, that he did not need to file his Application within the 24 month period, then he has a reasonable excuse. The situation is no different from that where the mistaken belief is induced by the employer in such circumstances as reasonably warrant it. However the mistaken belief would have to be induced by someone. The applicant cannot rely on his own self-induced confusion, or on some kind of pious hope that all would be well.

22. The applicant obviously knew he needed to file an application with the court. He says that he was advised by a male officer in the Labour Department to proceed expeditiously. He applied for legal aid on the day he received that advice i.e. 26 October 2001. For him to withdraw that application would not be reasonable, unless something or someone induced him to do it, and thereby to go against the oral and written advice that he had already received from the Labour Department.

23. Unfortunately we have no evidence from the applicant's wife as to what she says she was told by Miss Chan of the Labour Department. From that Department's letter of 28 August 2002 it seems unlikely that she could have spoken to Miss Chan on 26 October. It is in any event unlikely that any officer of the Labour Department would give a claimant to understand that there was no need for him to institute proceedings, when the Department has issued the standard letter which advises claimants to do so. I cannot therefore be satisfied as to what it was which caused the applicant to withdraw his application for legal aid and not proceed with filing his Application within time.

24. In the circumstances I do not see how I can be satisfied that the applicant has a reasonable excuse for the late filing of the Application. The Application is therefore dismissed. The applicant's summons dated 7 August 2002, which is a duplication, is also dismissed. The costs of the Application and the applicant's summons will be to the respondent to be taxed if not agreed and the applicant's own costs are to be taxed according to the Legal Aid Regulations. I do not consider that a certificate for counsel is appropriate. As to the respondent's summons dated 6 August 2002, it cannot be said that the Application was ever frivolous or vexatious or an abuse of process; it contained the section 14(4) application and an applicant is entitled to try to rely on section 14(4) if he can. I think therefore that the best course is to dismiss the respondent's summons and make no order for costs on it. Since this ruling is to be handed down the costs orders will be nisi.