Chan Pak Lin v. Society for the Prevention of Cruelty to Animals

DCEC937/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 937 OF 2001

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R U L I N G

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1. This is an application under section 14(4) of the Employees Compensation Ordinance by the applicant for the court to receive and determine his application for employee's compensation, notwithstanding the expiry of the two-year limitation period which is provided for in section 14(1), on the ground that there was reasonable excuse for his failure to apply in timely fashion.

2. The background to the matter would appear to be as follows. The applicant was employed by the respondents, the Society for the Prevention of Cruelty to Animals, and on a date between 1 and 7 July 1999, when in the course of his employment he sprained his back whilst carrying a large dog.

3. I take the date of the accident which, for present purposes, is most favourable to the applicant, as 7 July. This application for compensation is dated 12 November 2001, and so it is a little over 4 months out of time.

4. The chronology that matters is the following: in August 1999, so just a month after the incident which gives rise to the application, he went to see the Legal Aid Department, and there is a letter about this from the Labour Department, dated 13 March 2002, written to the respondent's solicitors. He was advised of his right to pursue this claim and he then apparently asked to have the matter referred to the Legal Aid Department so that he might be legally represented to pursue the application against his employers, and that was done on 8 October.

5. What then happened was that he was refused Legal Aid and, according to the Labour Department, they wrote two letters to him, the first dated 27 October 1999, and the other on 23 December 1999. Both asked him if he still wished to pursue his claim, and I have seen copies of those two letters. What the applicant says is that he did not receive either of those letters. They were sent to his correct address and that is the address which also appears on his application for compensation. He has explained that it does not surprise him that he did not receive those letters because there are two areas in Tuen Mun which are similarly designated and that might create confusion. It is interesting to note that all the other letters relating to this matter appear to have been received by him, but that is what he says.

6. The next matter, in terms of chronology, is that he then appears to have gone to a relative of his, who is a solicitor. The solicitor said that he wanted $20,000. The applicant did not have $20,000, so he could not engage that person to assist him. He was also advised by the solicitor that there was no certainty that he might succeed and that, if he failed, he might then have to pay the Respondent's costs. That rather disenchanted him so far as this matter was concerned, and what then happened can be stated shortly by reference to the applicant's own statement in this matter which is filed with the court.

7. In early September 1999 he found a job as a driver, paying $5,000 a month, but that also required manual work in terms of lifting, and so he left that job shortly after that; and then he went on a course to improve his clerical skills in relation to import and export work - he wanted to switch to office work - and he successfully completed that course, and on 6 November 1999 he found work as a trading clerk at an improved salary of $7,000 a month, but he was dismissed from that employment shortly afterwards in January 2000 because the work apparently required him to go to the warehouse, and that also entailed manual labour and he was not up to that.

8. He could not find work subsequently, and having no money, he went to the Social Welfare Department. He also attended, I think, a course at a vocational training institute. Eventually he found a job as a chauffeur 4 months after his dismissal, at the end of April 2000. The salary there was $9,000 a month. It did not require any manual labour, and he seems to have made a good job of it, because in May he was promoted to the rank of assistant safety officer. He then went on to do a further course, and on 16 August 2001 he was recommended to take a safety officers' diploma at the Open University, and as a result of his studies there, he was able to learn things which indicated to him that his previous employers, the respondents in this matter, had adopted procedures which fell foul of legislation, and that seems to have re-kindled his interest in making this application. And then he wrote to the Labour Department in October 2001, and that seems to have prompted a referral to the District Court, to this court, in November, and the application was filed, as I have already indicated, on 12 November last year.

9. He has given a number of reasons as to why he has not brought the application in timely fashion. Firstly, he says that he was ignorant of the law. He has also been at great pains to point out that he was in great discomfort as a result of the back strain, he was taking strong medication and he said that made him rather muddle-headed; but notwithstanding that, he appears to have given perfectly sensible instructions to the Labour Department when he saw them initially in the latter part of 1999 and he asked to be referred to the Legal Aid Department and he made an application there, and it is right to say that he was able to find work very soon after that, and did his best in getting himself back on an even keel. Even when he lost his job initially, he was able to find other employment.

10. The question here is: has he made out a case that would be sufficient to satisfy me that there has been a reasonable excuse for not making the application within the two-year period? The principles which the court needs to apply are well known. They appear in the case of Wong Man-tak v Shaws & Sons Limited [1957] DCLR 85, a decision of Judge Charles in this court, where, at pages 88 to 89, the question of a reasonable excuse was dealt with by the learned judge as follows:

"A reasonable excuse in the ordinary sense of the phrase means in relation to a failure by an applicant to make his application for compensation within the prescribed period if the failure was due to such cause or causes that it ought, as a matter of reason, to be excused. The phrase thus means the same as the phrase 'reasonable cause' which occurred in section 14 of the Workmens Compensation Act (1925) in the United Kingdom. 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. On the other hand, the cause was not reasonable if it were a belief by the applicant that it would be to his interest to defer or not to make a claim. See Willis' Workmens Compensation 36th edition page 436 and following. 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 whilst 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 claim was prevented by a reasonable cause unless he could show that he had good reason for not making his claim before that cause arose. See Aldridge v Norwich Coal Company and Ashton v London North-Eastern Railway. 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."

11. This was followed by Judge D'Almada Remedios in the case of Chan Wing-cheung v Sun Cheong Bleaching and Dyeing Factory Limited [1989] HKDCLR 55. In that case the application was 23 months out of time, where the workman had said that he had been ignorant of his right to bring a claim for compensation until after the expiry of the two-year limitation period. As to this aspect, Judge D'Almada Remedios, applying the English cases of Rolls v Pascal & Sons [1911] 1 KB 982 and Judd v Metropolitan Asylum Board [1912] 5 BW CC420, held that ignorance of one's rights cannot amount to a reasonable excuse. See page 56(d) to (f), which is in these terms:

"Initially the applicant asserted in his affirmation that he did not know that he could claim compensation until August 1988, which was well after the limitation period. Even if that were true, this is not a reasonable excuse. See Rolls v Pascal [1911] 1 KB 982, which is authority for the proposition that ignorance of a right to compensation does not amount to reasonable excuse. The decision was followed in Judd v Metropolitan Asylum Board [1912] 5 BW CC420. The ratio decidendi was that the court would, in effect, be repealing the period of limitation which is distinctly imposed by the Act if it were to say that a person could escape from that and bring his claim at any time afterwards if he could prove that he never heard of the existence of the Act or did not know anything about its contents. That, the court felt, would not be right and was not what the section means. Further 'reasonable excuse' means some cause to which, as between master and servant, regard may reasonably be paid. Buckley LJ in the Rolls case at 987. Although in our ordinance, the phrase is 'reasonable excuse', the same reasoning applies."

12. From that I turn to the facts of this case. It is right to say that this application is only 4 months out of time, and clearly that is a matter which I ought to take into account in the exercise of my discretion, and it is a matter that would favour the applicant. This is not one of those cases where the application is a particularly long period out of time. But I am bound to say that this applicant, who clearly moved quickly to exercise his rights by going to the Labour Department very soon after these events, was then referred to Legal Aid. He was rejected by the Legal Aid Department and then allowed matters to go to sleep for the next 23 months or so. He has indicated to me that he did not receive those letters from the Labour Department in October and December of 1999. For my part, I very much doubt the truth of that statement. They were letters that were properly addressed, and there is no indication that the post office had any difficulty in not delivering them. But even if I am wrong about that, clearly the evidence here shows that he then lost interest in the matter beyond having gone to see if he could get a private lawyer, who asked him for $20,000, which he could not afford. He then got on with his life, so far as I can tell. He found other employment - did nothing about it - and then, when it was almost too late, he then, apparently through his studies, learned that the procedures in place at the respondent's premises were not as they should be, and so that appears to have re-kindled his interest in the matter; and when it was then too late, he went back to the Labour Department, who then saw to it that he issued his application through the court.

13. I am afraid that this simply is not good enough. He has made the point that he was ignorant of his rights, and it is quite clear that at the very earliest stage he knew that he had a right to make the application. He went to the Labour Department, and the contemporaneous correspondence from them indicates that he was there to see them about claiming compensation and that is the very reason why he was referred to the Legal Aid Department, and so he was well aware of his rights from the outset.

14. This is a case where, in my judgment, he has deliberately chosen to do nothing about this matter until it was far too late. This is one of the clearer cases where there is simply no merit in the application to extend time.

15. Accordingly, it must be dismissed; and, I fear, with costs.

(Discussion re costs)

16. With costs.