AU Kin Wah v. Always Win Fashion Ltd.

DCEC829/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 829 of 2001

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Ruling

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1. By a summons dated 21 May 2002 the applicant applies for:

(a)	leave to file and proceed with the Application notwithstanding the expiry of the two years limitation period, pursuant to section 14(4) of the Employees' Compensation Ordinance, Cap. 282; and
(b)	leave to appeal against the Certificate of Review of Assessment (Form 9) dated 8 March 2001 notwithstanding that the time for doing so has expired, pursuant to section 18 of the Ordinance.

2. The applicant was employed by the respondent as a production manager from 1 December 1997. He was required to work most of the time in the PRC. On 5 April 1998, he was injured in a road traffic accident in Guangdong Province. There seems to be no dispute that the accident occurred in the course of and arose out of the applicant's employment. The respondent admitted this in the Form 2 Notice of Accident dated 17 April 1998.

3. On 13 October 2001, the applicant filed his Application applying for employee's compensation and appealing against the Certificate of Review of Assessment (Form 9) dated 8 March 2001. Time for the Application had expired on 5 April 2000 and it is therefore 18 months and 8 days out of time. Time for the appeal against the Certificate of Review of Assessment, which is to be made within 6 months, expired on 8 September 2001 under section 18, and the appeal is 1 month and 5 days out of time.

4. 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.

5. 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."

6. The applicant's case is that his failure to file the Application in time was not caused by any unreasonable conduct or unreasonable decision on his part. He did not know of the limitation period until 11 September 2001. In the meantime, he was unable to transact business because of his injuries. Further, he believed that an application to the court was not necessary, which belief was induced by the respondent both directly and by its conduct and that of its solicitors.

7. The applicant's evidence is that he was admitted to hospital in the Mainland from 5 to 18 April 1998 and then to the Princess Margaret Hospital in Hong Kong where he remained until 25 May 1998. He then went to stay with his family members in Canada. There, he had three more operations for the injuries suffered in the accident, on 8 December 1998, 2 June 1999 and 7 March 2000.

8. The applicant says that he received periodical payments from the respondent until about February 2000. He was in touch with them from time to time, and he was told that their insurer wanted him to be examined by its expert, Dr. Danny Tsoi. He received a letter from the respondent's solicitors dated 11 April 2000, requesting authorisation to obtain his medical records. On 28 April 2000 he was examined by Dr. Tsoi.

9. In May 2000 the applicant applied for legal aid to apply for periodical payments for the third year after the accident but this was refused on the ground of means. He discussed his request for such payments with the respondent and was told that he could retain his position, but without salary, because the respondent was in financial straits. He was told several times that the respondent's insurer would deal with his employee's compensation claim, and to wait to hear from the insurer.

10. The applicant was in touch with the Labour Department and attended medical assessments in September 2000. A Certificate of Assessment (Form 7) was issued on 12 October 2000. He objected to the figure of permanent loss of earning capacity and was re-assessed; the Certificate of Review of Assessment (Form 9) was issued on 8 March 2001.

11. The applicant says that he received the Certificate of Compensation Assessment (Form 5) on 24 April 2001. He attempted to contact the respondent without success and so on 9 May 2001 he wrote to the respondent's solicitors requesting payment.

12. It appears that on receipt of this letter the respondent's solicitors wrote to the Labour Department on 11 May 2001 to query the calculations in the Certificate which were based on pre-accident monthly earnings of $30,000, whereas the figure shown in the Form 2 was $20,000. The solicitors copied their letter to the applicant on 15 June 2001, and on 9 July 2001 the Labour Department wrote to him advising him that his employer had raised an objection to the earnings figure. He replied on 18 July 2001 giving his own figures. On 11 September 2001 the Labour Department advised him that they could not adjudicate the dispute and advised him to apply to the court. At the same time they advised him that his application was out of time, and that the court could refuse to accept it unless he had a reasonable explanation; therefore, he should decide as soon as possible whether to bring his case to court. He could also consider approaching the employer to negotiate a solution to the dispute.

13. The applicant then on 24 September 2001 wrote to the Labour Department requesting it to bring the case before the court. He was by letter of 5 October 2001 advised to apply directly to the court, and this he did, in person, on 13 October 2001.

14. There is no evidence from the respondent itself but its solicitor, Mr. Kwong, has filed an affirmation on its behalf. He produces a letter from the Labour Department to the effect that it wrote to the applicant on 5 October and 5 December 1999 standard computer-generated letters advising that section 14(1) of the Ordinance stipulates that a claim for compensation must be made within 24 months of the accident. He says that the applicant was therefore fully aware of the limitation period. He further states that the respondent denies having told the applicant to wait for further notice from the insurer.

15. There is no evidence from the applicant in response to the assertion that he was sent these reminders by the Labour Department. However, I note from the standard form that the letters would have been sent to "I/P address" and that the address given on the Form 2 was the applicant's Hong Kong address. He does not say exactly when he left Canada, though he seems to have told Dr. Tsoi that he returned a few weeks before the medical examination which Dr. Tsoi carried out on 28 April 2000. His last operation in Canada was on 7 March 2000 so it seems probable that he was in Canada when these letters were sent to his Hong Kong address. There is, in effect, no direct evidence to gainsay the applicant's evidence that he did not know of the limitation period before September 2001. Certainly, once apprised of it, he took action. It is more probable than not that he did not know of the limitation period and the need to institute proceedings before September 2001.

16. I do not think there is anything in the applicant's contention that he was unable to transact business because of his injuries. There was simply nothing to stop him from instituting proceedings while under medical treatment, if he knew that he should do so but on my finding he did not know it.

17. Perhaps more important is the applicant's contention that he believed that an application to the court was not necessary, which belief was induced by the respondent both directly and by its conduct and that of its solicitors. The applicant's solicitors wrote to him on 11 April 2000, after the expiry of the limitation period, with a request for authorisation of disclosure of hospital records. It has been suggested that this was in connection with his common law claim but the letters of authority which he was asked to sign were headed "Employee Compensation". So at least at that time, the respondent was taking no point on limitation. Indeed it appears that the matter was simply left to drift on, so far as the respondent's solicitor was concerned, until May 2001 when, no doubt, a check was made of the figures and the query raised about the pre-accident earnings.

18. As to the applicant's evidence that he was told by the respondent or its personnel to wait for the insurers to settle the claim directly with him, there is again no direct evidence to contradict him. The solicitor in his affirmation states that it is denied, but this is obviously of limited weight. The applicant has named Mrs. Wong of the respondent as the person who spoke to him and there should properly have been some evidence from her.

19. I am left with the impression in this case that the respondent, its solicitors and its insurers have been quite happy to let matters take their course at least until May 2001 on the basis that ultimately the claim would be met. It is more probable than not that the applicant was given the impression that it would, and that the idea of legal proceedings never really crossed his mind before he received the letter from the Labour Department in September 2001. In the circumstances, I do not see that the applicant acted unreasonably or took an unreasonable decision in not applying in time. The applicant is therefore entitled to leave to proceed with the Application out of time.

20. As to the appeal against the Certificate of Review of Assessment, section 18 (2) provides simply that the court may, if it thinks fit, extend the time within which to appeal notwithstanding that the time has elapsed. There is no requirement of a reasonable excuse for the failure to apply in time. While the Certificate shows an assessment of 14% permanent loss of earning capacity, the respondent's own expert gives a figure of 16%. In the circumstances of the applicant's lack of knowledge it seems entirely reasonable that the appeal should be allowed and I will allow it.

21. There will therefore be an order in terms of the applicant's summons dated 21 May 2002. The summons applies for costs in the cause and that will be the costs order. I said that I would hand down the ruling with an order nisi but that hardly seems necessary; there can be no question of awarding costs in favour of the respondent, and if the applicant had intended to seek costs in any event that should have been included in the summons. I have been asked to consider issuing a certificate for counsel, but I do not see that this is appropriate. The matter could have been handled by a competent solicitor as indeed it was on the respondent's behalf. The application for certificate for counsel is refused.