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DCEC 40/2021
[2022] HKDC 26
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO 40 OF 2021
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IN THE MATTER OF AN APPLICATION BETWEEN
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ZHU SHUZHEN (朱書珍) |
Applicant |
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ENERGY (H.K.) ENGINEERING LIMITED
(能聯工程有限公司) |
1st Respondent |
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MAXFUL ENGINEERING LIMITED
(萬利寶工程有限公司) |
2nd Respondent |
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Before: Her Honour Judge Levy in Chambers (paper disposal)
Date of Applicant’s Written Submissions: 1 November 2021
Date of 2nd Respondent’s Written Submissions: 29 November 2021
Date of Applicant’s Written Reply Submissions: 6 December 2021
Date of Decision: 12 January 2022
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DECISION
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A. Introduction
1. On 7 May 2018, the Applicant suffered personal injuries in an alleged accident (“Accident”) allegedly arising out of and in the course of employment with the 1st Respondent. The place of the Accident was averred to have been in a confined space at No 3 of the Salt Water Service Reservoir of the Water Supplies Department at Ma On Shan (“Site”).
2. On 8 January 2021, the Applicant’s legal-aid assigned solicitors filed the present Application (“Application”) for employees’ compensation 8 months after the expiry of the 2-year limitation period stipulated by the provisions of s 14(1) of the Employees’ Compensation Ordinance[1]. The Applicant alleged that the 1st Respondent was the immediate employer and the 2nd Respondent was the principal contractor.
3. In this summons (“Summons”) the Applicant filed on 4 August 2021 together with her supporting affirmation (“Supporting Affirmation”), the Applicant sought leave pursuant to s 14(4) to commence these proceedings out of time.
4. The 1st Respondent acts in person, and has not participated in these proceedings. The legally represented 2nd Respondent opposed the Summons, and its general manager, Yeung Ka Po, deposed an affirmation in opposition (“Opposing Affirmation”).
5. I directed the Summons to be disposed of on paper. Solicitors for the Applicant and the 2nd Respondent had lodged their written submissions.
B. The Legal Principles
6. Pursuant to s 14(4), this court is empowered to grant leave to the Applicant to commence these proceedings out of time if it is satisfied that there was reasonable excuse for the delay.
7. The criteria for the determination as to what constitutes “reasonable excuse” are authoritatively laid down in the Court of Appeal decision of Tsang Loi Fat v Sun Fook Kong (formerly known as Sung Foo Kee Ltd) [2]. The relevant criteria are:-
(a) The reasons for delay;
(b) The length of delay;
(c) Whether there is sufficient ground to support an award; and
(d) Prejudice to a respondent.
8. The burden is on the Applicant to prove the existence of “reasonable excuse” with credible evidence[3].
C. The Applicant’s reasons for the delay
9. In the Supporting Affirmation, the Applicant stated that she was a new immigrant from Henan, Mainland China, and only settled in Hong Kong in June 2016. Her native tongue was Henan dialect, and she had very limited understanding of the Cantonese dialect. She had received education up to junior secondary school in her native village.
10. The Applicant stated that the Accident was witnessed by her supervisor (Ms Tang), and together with the latter she reported the Accident to a Mr Wan who was responsible for the management of the 1st Respondent. During the almost two-year period when she was paid the sick leave pay (which was in fact in the nature of s 10 payments) by the 1st Respondent, the Applicant thought she had been adequately compensated. However, by February 2020, the 1st Respondent stopped paying her anything even though she was still on sick leave. After she later learned about the Labour Department (“LabDep”) from a patient at Kwong Wah Hospital, the Applicant went to LabDep in April 2020 to seek help. The Applicant stated that since then she had followed the instructions/ suggestions given by the LabDep in the 3 letters respectively dated 24 April, 5 and 25 August 2020[4] (respectively “April Letter”, “1st August Letter” and “2nd August Letter”) LabDep sent to her.
11. The Applicant stated when she received the April Letter, she was told to wait for further contact from the LabDep as the latter needed time to gather information. She therefore waited. It was only upon the receipt of the 1st August Letter did she come to realize that the time limit for her claim for employees’ compensation had expired. She stated that as soon as she was provided information from the 2nd August Letter about making an application for Legal Aid, she immediately proceeded to make an application for Legal Aid. Owing to the laborious process of the submission of documents, the Applicant stated that she had spent quite a long time to complete the application procedure. On 7 December 2020, the Applicant was granted Legal Aid to commence these proceedings, and the Application was filed shortly afterwards.
12. The Applicant further stated that it was only after she reported the Accident to the LabDep did she then realize that the 1st Respondent only reported the Accident to the LabDep on 23 July 2020 by the prescribed Form 2 (“Form 2”).
D. The grounds of opposition
13. In the Opposing Affirmation, the 2nd Respondent raised the following grounds of opposition:
D.1 Failure to give prompt notice of the Accident to the 2nd Respondent
14. The 2nd Respondent complained that the Applicant had misleadingly sued the 2nd Respondent as the principal contractor when the principal contractor was in fact Chun Wo Construction and Engineering Company Limited (“Chun Wo”). The 2nd Respondent stated that Chun Wo had sub-contracted the execution works of the Site to it, which further sub-contracted the cleaning work to the 1st Respondent.
15. The 2nd Respondent stated that it only knew about the Accident in around November 2020.
D.2 The delay was inexcusable
16. In the Opposing Affirmation and the 2nd Respondent’s written submissions, the 2nd Respondent contended that it is trite that ignorance of rights is not a reasonable excuse. Hence, the Applicant could not use her alleged ignorance of rights to excuse her delay. In any event, the 2nd Respondent suggested that the Applicant had only suffered a knee injury. There is no evidence that the Applicant’s injuries had prevented her from seeking appropriate advice in relation to her employees’ compensation claim.
17. The 2nd Respondent further contended that the Applicant’s low-education and alleged lack of knowledge of the local market situation and the Cantonese dialect should not be accepted as a reasonable excuse. It was suggested that according to the Applicant’s evidence, she could understand Cantonese, and had worked in the catering industry before she was employed by the 1st Respondent. In the circumstances, it was contended that any delay could not have been induced by the conduct of a third party, but was rather as a result of her own folly. Neither the alleged cessation of the s 10 payments by the 1st Respondent, nor the 1st Respondent’s late filing of Form 2 with the LabDep, the 2nd Respondent contended, could constitute reasonable explanation for the delay.
18. It is also suggested that the Applicant was clearly aware of the time limit for the commencement of employees’ compensation proceedings as evidenced by the materials contained in the information leaflet (“Information Leaflet”) entitled “Handling of Employees’ Compensation Case – Points to Note for Employees (僱員補償個案的處理 — 僱員須知)”[5] the LabDep enclosed with the April Letter. In addition to the enclosing of the Information Leaflet, the LabDep further specifically drew to the attention of the Applicant three relevant sections of the Information Leaflet - Sections III (“Procedures on handling normal work injury cases”), IV (“Procedures on handling doubtful cases/cases in dispute”) and V (“Time limitation for application to the Court”).
19. Since Section V of the Information Leaflet has clearly set out information about the 24-month time limit, and there was no evidence that the Applicant had difficulty in understanding the April Letter or had not read the enclosed materials, the 2nd Respondent contended that the Applicant had failed to provide any reasonable explanation for the inaction until the receipt of the 2nd August Letter when an application for legal aid was made.
D.3 Substantial delay and prejudice to the 2nd Respondent
20. The 2nd Respondent suggested that the 8-month delay was substantial as it has adversely impacted its investigations into the Accident. It has now become impossible for the 2nd Respondent to have access to the Site to collect evidence. The location of any crucial witnesses has also been adversely impacted.
21. Apart from the above prejudice the 2nd Respondent averred it will suffer, the 2nd Respondent also alleges that it has been deprived of the benefits of the relevant insurance policy as a result of it having been repudiated by its insurer.
E. Discussion
E.1 The significance of the 2nd Respondent as the principal contractor
22. According to the information disclosed by the 1st Respondent in the Form 2, the 1st Respondent admitted that the Applicant was its employee and that the Accident at the Site occurred in the course of the employment. The 2nd Respondent was named as its principal contractor.
23. Since the 1st Respondent’s filing of the Form 2 was pursuant to its s 15 obligation of reporting an injury of an employee with the attendant criminal sanction for giving false or misleading information to the LabDep, I am therefore of the view that the information contained in the Form 2 should be accurate and can be relied on.
24. In view of the information the 1st Respondent disclosed in the Form 2, and its failure to participate in these proceedings to contest liability, the Applicant’s claim against the 1st Respondent is strong. It follows that the liability against the 2nd Respondent, by the operation of s 24, which statutorily imposes liability of a principal contractor to pay compensation to employees employed by sub-contractors, is equally strong. By virtue of the deeming provisions, the alluding by the 2nd Respondent to Chun Wo being the principal contractor of the entire project work of the Site, in my view, is only a red-herring.
25. Relevantly, by the deeming provisions of s 14(3), which deems a notice of an accident to a sub-contractor to be a notice to the principal contractor, the Applicant’s notice of the Accident to the 1st Respondent was therefore deemed to have been to the 2nd Respondent. Despite the 2nd Respondent’s denial of not having been given any notice of the Accident, it has not disputed the Applicant’s evidence of having given notice to the 1st Respondent.
26. From the evidence the Applicant adduced, I am in agreement with the Applicant’s submission that there is sufficient evidence that the 1st Respondent was given notice of the Accident shortly afterwards (see §10 above).
27. Based on the above analysis, I find the Applicant has sufficient ground to support her claim against the 2nd Respondent, and I further reject its objections on the ground of failure to give notice.
28. I am also not persuaded that the 2nd Respondent has suffered any prejudice as alleged. Pertinent to note is the obvious lack of reference by the 2nd Respondent as to whether it had made inquiries from the 1st Respondent about the Accident. Given the fact that the 1st Respondent was the immediate employer, it would have been expected to have direct knowledge of and access to information regarding the Accident. It would have been most logical for the 2nd Respondent to contact the 1st Respondent when it had knowledge of the Accident. The absence of such evidence, in my view, is wholly at odds with its alleged prejudice in having been prevented from conducting its own inquires, and further undermines the force of its objections.
29. Neither do I find the 2nd Respondent’s allegations about its alleged breach of the relevant insurance policy is substantiated, and it is thereby rejected.
30. Since the complaint of the period of delay is directly linked to the complaint of prejudice, it should therefore stand and fall with the determination of the prejudice objections. Since I have found that the 2nd Respondent has not suffered any prejudice, the complaint of the period of delay, in my view, also falls away.
31. In the circumstances, my exercise of discretion ultimately turns on whether the Applicant can satisfy me that she had provided reasonable excuse for the delay.
E.2 Any reasonable excuse?
32. An application of this nature is fact-sensitive. I do not think it is appropriate to approach the various factors listed in Tsang Loi Fat (supra) as a straightjacket. Hence, the previous decided cases are only of very limited assistance to this court.
33. By the same token , the reference by the 2nd Respondent to a previous District Court judgment of Yan Hon-kan v 文洪模板工程 and Sun Fook Kong Construction[6] to advance its contentions that the Applicant’s ignorance of her legal rights could not constitute good explanation is of very little relevance despite the similarities to the facts of that case. At best, that case only serves to illustrate the established legal principle that a person’s ignorance of his/her rights to compensation is not a good excuse.
34. In the event, I do not think the Applicant has sought to excuse the delay on the ground of ignorance of legal rights. I think that the 1st Respondent’s s 10 payments (or sick leave payments as the Applicant described) had lulled the Applicant into a mistaken belief about her entitlement. This, in my view, is a valid reason to explain her delay.
35. One unique feature in this case that has substantially contributed to the Applicant’s delay, in my view, is the 1st Respondent’s failure to submit the Form 2 in accordance with the s 15 timetable of 14 days. Instead of reporting the Accident within the required 14 days, the 1st Respondent only filed the Form 2 on 23 July 2020, by which date the two-year time limitation had expired. Had the 1st Respondent filed the Form 2 promptly in accordance with the stipulated time of 14 days or shortly afterwards, the LabDep would have received the report of the Accident well before the time limit had lapsed and would have, according to its usual procedure, rendered the assistance to the Applicant before the time limitation had expired. Had that been the case, I believe that it is likely that the Application would have been filed within time.
36. Having considered the matter in the round, I am satisfied that the Applicant had not been dilatory in the pursuit of the claim. Shortly after the 1st Respondent ceased paying her the s 10 payments, and when she learnt about the services of the LabDep in around March/April 2020, the evidence shows that she had promptly reported the Accident to the LabDep and sought assistance from them. By the time of the April Letter, the time limit was due to expire in 12 days. The LabDep, however, only enclosed with the letter the standard Information Leaflet and told the Applicant that they would contact her shortly[7]. In my view, it would have been more preferable had the LabDep specifically warned the Applicant that the time limit for the commencement of the employees’ compensation proceedings was due to expire soon, and asked the latter to immediately contact them. Belatedly, it was only after the limitation period had already expired for 3 months before the LabDep contacted the Applicant again by its 1st August Letter. It was after the Applicant had received the 2nd August Letter that she was informed of the services of the Legal Aid Department.
37. In my view, it is not uncommon for a person with the attributes of the Applicant, who was of low education and had only lived and worked in Hong Kong for a relatively short time, to have a high level of dependence on a government department like the LabDep for guidance in the pursuit of her legal rights. It is therefore unfair to fault the Applicant for having followed the instructions given in the April Letter by having waited for further instructions from the LabDep. Her inaction while waiting for the LabDep’s further instructions, in my view, is wholly consistent with the level of reliance she had placed on the LabDep, and is excusable notwithstanding the materials about time limit she had received enclosed with the April Letter.
38. Rather than having found the Applicant to have dallied, I form an impression that the Applicant had throughout acted promptly in accordance with the suggestions/instructions stated in each of the three letters (April Letter, 1st and 2nd August Letters). The Applicant has not been dilatory in the puruit of her legal rights.
39. I also do not find any delay on the part of her legal-aid assigned solicitors, who promptly commenced these proceedings within one month of the issuance of the Legal Aid Certificate.
40. For the reasons stated above, I am satisfied that the Applicant has provided reasonable excuse for the delay.
F. Conclusion
41. For the reasons stated above, I’d be inclined to exercise my discretion to grant leave to the Applicant to commence these proceedings out of time.
42. I grant an order in terms of the Summons save that the costs order stated in §2 is by way of a nisi order. Any application to vary the said nisi order shall be issued by an inter-partes summons within 14 days of the handing down of this Decision.
43. Since the 1st Respondent is acting in person, there shall be a Directions Hearing on 25 March 2022 at 10:30 am in Court No 26 of the District Court. It is further ordered that:-
(1) The 1st and 2nd Respondents do file and serve their respective Answers accompanied by a Statement of Truth in accordance with Order 41A of the Rules of the District Court (Cap 336H) within 28 days from the date of the Decision;
(2) The 1st Respondent do file its Mediation Certificate within 28 days from the date of the Decision;
(3) The 1st and 2nd Respondents do file and serve, for the purpose of calculating the monthly earnings of the Applicant under s 11 of the Employees’ Compensation Ordinance (Cap 282), their respective Lists of Earnings of the Applicant for the 12 month-period prior to the accident or such lesser period of the employment with the 1st and/or 2nd Respondents within 28 days from the date of the Decision;
(4) The Applicant, the 1st and 2nd Respondents do each file and serve a List of Documents within 42 days from the date of the Decision;
44. Lastly, I wish to thank solicitors for the Applicant and the 2nd Respondent for their assistance.
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( Katina Levy ) |
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District Judge |
Yip, Tse & Tang, for the applicant
The 1st respondent is not represented, and did not participate in the proceedings
S.H. Chou & Co., for the 2nd respondent
[1] Unless otherwise specified, all references to the statutory provisions in this Decision refer to the Employees’ Compensation Ordinance.
[2] [2011] 4 HKLRD 344.
[3] Chan Wing Chuen v Sun Cheong Bleaching & Dyeing Factory Ltd [1989] HKDCLR 55.
[4] Respectively exhibited as “ZS-1”, “ZS-3” and “ZS-4” to the Supporting Affirmation.
[5] The Chinese and English version of the leaflet is exhibited as “YKP-2” to the Opposing Affirmation.
[6] DCEC 133/2001 (unrep) 3 July 2001.
[7] “我們會盡快再聯絡你”.
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