KWOK SHUT CHUNG v. RANGER CONSTRUCTION CO. LTD. AND ANOTHER

DCEC 677 of 2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 677 of 2002

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Judgment

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1. The Applicant is claiming compensation under the Employees Compensation Ordinance in respect of an accident which occurred on 8 November 1999, as against the 1st Respondent whom he alleges was his direct employer, and the 2nd Respondent who there is no dispute was the principal contractor.

2. The application for employee's compensation was made on 1 August 2002, namely just short of 9 months outside of the 2-year time limit from the date of the accident, which time limit is prescribed by section 14 (1) of the Ordinance. The 2nd Respondent has issued the present summons for the proceedings against it to be dismissed by reason of the application being out of time.

3. Section 14 (4) of the Ordinance provides that the Court may receive and determine an application notwithstanding that it was made outside the 2-year time limit, if it is satisfied that there was reasonable excuse for the failure to make the application in time. The Applicant contends that there was such reasonable excuse in all the circumstances of the present matter, which is denied by the 2nd Respondent.

4. The accident occurred on 8 November 1999, in consequence of which the Applicant, who was employed as a carpenter, sustained pain and stiffness in his left elbow. On 13 May 2000 the 2nd Respondent gave notice of the accident to the Commissioner for Labour as required by section 15 of the Ordinance, with a covering letter apologising for the late submission of the notice, and explaining that the delay was caused by the late report and submission of relevant information by its sub-contractor (the 1st Respondent).

5. According to the Applicant's affirmation, he was granted sick leave from 9 November 1999 to 15 June 2000, a period of some 220 days; he states that he was unable to work throughout the sick leave period. On 21 November 2000 the Applicant's permanent loss of earning capacity was assessed as being 2% in terms of a Certificate of Assessment issued on that date. A Certificate of Compensation Assessment issued on the same date applied a monthly salary for the Applicant of $8,500 per month for the purposes of calculating the compensation due to him in terms of the Ordinance, a figure which was at odds with the salary which has been stated by the 2nd Respondent in its original notice, namely $26,000 per month, and the revised figure of $17,000 per month stated by the 2nd Respondent in response to a Notice of Change of Information which it received from the Commissioner for Labour dated 8 November 1999.

The Applicant's Case

6. The Applicant affirms that on receipt of the aforesaid Certificates in November 2000 he telephoned the Labour Department to query the monthly salary which had been attributed to him of $8,500 per month, and on being informed by Miss Wong of the Department that this was the amended salary which had been reported by the 2nd Respondent, he strongly contested the figure; Miss Wong advised him to obtain written proof of his monthly income, whereupon the Applicant affirms that he approached the foreman employed by the 1st Respondent under whom he had worked on the site, who provided him with a document stating that the terms of his contract were to work for 26 days a month at $1,000 per day, (namely $26,000 per month). The Applicant took the document to Miss Wong at the Labour Department, and on her advice also provided a copy of the document to the 2nd Respondent.

7. The Applicant further affirms that on about 12 January 2001, and again in late April or early May 2001 he went to the Labour Department to find out the progress of his case; he was informed that because the 2nd Respondent had not done anything further to clarify the question as to the amount of the Applicant's monthly income, the case could not be finalized.

8. The Applicant states that in the months following he telephoned the Labour Department on several occasions to find out what the progress of his case was, and in September 2001 Miss Wong informed him of the following:-

(a) that she was still waiting for the 2nd Respondent to amend the statement of the Applicant's monthly income;

(b) that she had advised Mr. Ng of the 2nd Respondent that if the case could not be settled by the end of October 2001, she would advise the Applicant to institute legal proceedings;

(c) that Mr. Ng had told her that the 2nd Respondent was desirous of settling the claim without going to court.

Miss Wong gave Mr. Ng's telephone number to the Applicant, and asked him to contact Mr. Ng.

9. The Applicant affirms that "thinking that the claim would be settled without going to Court, I therefore did not go to the Legal Aid Department and issue proceedings at that time."

10. The Applicant states that he then telephoned Mr. Ng and made an appointment to see him on 2 November 2001 (which was 6 days before the expiration of the statutory 24 month deadline for making his claim for compensation). At the meeting Mr. Ng assured him that the 2nd Respondent would take responsibility for his injury. He also suggested that the Applicant amend the number of his working days per month to 20; the Applicant however insisted that it was 26 days. Mr. Ng said that he would "do something", and that the Applicant would get what he was entitled to. Before the Applicant left, Mr. Ng asked his staff to prepare a note for the Applicant certifying the number of his working days and his salary each month, and the fact that he had borrowed a sum of $15,000 from the 1st Respondent. The Applicant duly signed such note, which was exhibited to his affirmation.

11. On 26 November (which was after the statutory deadline for lodging his claim), the Applicant went to see Mr. Ng of the 2nd Respondent again, and informed him that he would compromise on the number of working days that he was claiming for, namely that he would accept 21 days per month.

12. The following morning Mr. Ng called him and asked him to come to the office; when the Applicant went there, Mr. Ng told him that he accepted his request, and asked him to sign a document which had been already typed out to the effect that he would accept 21 days as his average number of working days, and also stated that once compensation has been given to him by the Labour Department he would not take further legal action against the 2nd Respondent. Mr. Ng then told him to go home and wait for good news.

13. In late February Miss Wong of the Labour Department informed him that the 2nd Respondent denied all liability to pay the Applicant any sum, and advised him to pursue the 1st Respondent; then in late July she told him that the 1st Respondent also denied liability, and she advised him to go to the Legal Aid Department. On 1 August 2002 she filed an application on behalf of the Applicant in the District Court for leave to file the application out of time, and for compensation under the Ordinance.

The 2nd Respondent's Case

14. Mr. Claypole on behalf of the 2nd Respondent submitted that the facts show that the Applicant has failed to seriously or conscientiously pursue his claim for compensation, and has failed to establish that he has a reasonable excuse for not having made his application timeously.

15. On 21 October 2002 the 2nd Respondent's solicitors wrote to the Labour Department to inquire whether the Applicant had, in the normal way, been warned of the 2-year time limitation to lodge a claim under the Ordinance. The Labour Department replied on 22 October to the effect that while their records did not show that a letter had been sent to the Applicant, Miss Wong of the Labour Department had advised the Applicant in a telephone conversation on 19 September 2001 that under the Ordinance he had to file his claim with the Court within 24 months from the date of the accident.

16. The Applicant was therefore specifically reminded of the time limit on 19 September, which was nearly 7 weeks prior to the deadline; and the Applicant himself conceded in his own affirmation that sometime in September 2001 Miss Wong had told him that she had told Mr. Ng of the 2nd Respondent that if the case could not be settled by the end of October 2001, that she would advise the Applicant to issue legal proceedings.

17. In the letter which the 2nd Respondent's solicitors sent to the Labour Department on 14 November 2001, and in subsequent correspondence by them, it was stated that the provision by them of the information which had been requested by the Labour Department was in no way to be regarded as a waiver by the 2nd Respondent of its right to object to the Applicant's claim on the basis that it was out of time.

18. The Applicant places considerable reliance upon what transpired between Mr. Ng of the 2nd Respondent and himself in explaining way he did not lodge his claim for compensation before 1 August 2002. His case is that Mr. Ng, by his actions and utterances towards him, in particular upon 2 November 2001(some 6 days before the expiration of the 24 month time limit) induced in him a belief that it was unnecessary for him to make a claim for compensation under the Ordinance, since the 2nd Respondent was sympathetic to his position and would take responsibility for his injury, and the Applicant would get what he was entitled to subject only to a resolution of the number of working days per month upon which to base the calculation of the compensation, upon which latter aspect Mr. Ng said he would "do something". The Applicant affirmed that "if Mr. Ng at the meeting on 2 November 2001 had told me he would adopt 17 days as my monthly working days to calculate my monthly income, I would have gone to the Legal Aid Department for assistance on the same day."

19. Mr. Claypole has stated in an answering affidavit that he had ascertained from the 2nd Respondent that Mr. Ng had left its employ on 30 September 2002, and was working in China. Mr. Claypole eventually managed to contact Mr. Ng in China by telephone, but he proved to be completely uncooperative in answering any questions in relation to his role in this matter.

20. I accept that the 2nd Respondent's solicitors have done all that they can be reasonably expected to do to secure the co-operation of Mr. Ng in order to clarify his dealings with the Applicant in relation to this matter. The fact remains that there is no evidence to rebut the Applicant's allegations in relation to his dealings with Mr. Ng, nor are such allegations inherently unworthy of credibility. I accept them as being truthful and accurate for the purposes of this application.

21. Such a belief on the part of the Applicant that a claim for compensation was unnecessary, if such belief was induced in him by the employer in such circumstances as reasonably warranted it, was cited by the Court in the leading case of Wong Man Tak and Shaws & Sons Ltd. Workmens' Compensation Case No. 47 of 1956, 1957 DCLR 85, as one example of a reason for failing to make a claim within the prescribed period which would constitute reasonable excuse for the purposes of section 14 (4) of the Ordinance.

22. However the same decision also made the following clear (at page 89): "Moreover, an Applicant was not excused if he had a reasonable cause which operated only for part of the period: he had to have reasonable causes for the whole period. Thus, while an Applicant might delay making his claim until the last moment of the prescribed period, he was not entitled to be excused if his last moment claim was prevented by a reasonable cause unless he could show that he had a good reason for not making his claim before that cause arose".

23. It seems clear from the Applicant's own version of events as deposed to in his affirmation, that it was as late as in September 2001 that he was informed by Miss Wong that Mr. Ng was desirous of settling the claim, and that it was even later, on 2 November 2001 (which was only 6 days before the expiry of the prescribed time limit) that the Applicant first saw Mr. Ng. It was therefore only from 2 November onwards that Mr. Ng could be alleged to have induced in the Applicant the belief that it would not be necessary for him to make a formal claim for compensation.

24. There was no conduct on the part of the 2nd Respondent prior to September 2001 which was calculated to or which did induce in the Applicant a belief that it was unnecessary for him to make a claim for compensation. Indeed, the Applicant had no dealings at all with the 2nd Respondent prior to September 2001.

25. There was nothing to prevent the Applicant from filing his claim for compensation at any time prior to September 2001. It seems clear that he delayed making his claim until virtually the last moment of the prescribed period, so that the belief which he asserts that Mr. Ng thereafter induced in him that it was unnecessary for him to make a claim for compensation, does not avail him on the facts of the present case, since it does not provide any reasonable cause for his not having filed his claim at any time prior to September 2001. It was, in my view, unreasonable conduct on his part not to have secured his position by making his application prior to September 2001.

26. In all the circumstances the Applicant has failed to satisfy me that there was reasonable excuse for his failure to make an application for compensation before the expiration of the prescribed time limit. The 2nd Respondent accordingly succeeds in its application. I grant an order in terms of paragraphs 1 and 2 of the summons, and an order nisi for costs in terms of paragraph 3.