CHAN KIT v. SAM WO INDUSTRIAL MANFACTORY

Headnote

The Procedures to be followed by applicants for Employees Compensation are those specified in the ordinance and in the employees' compensation (Rules of Court) Rules; and the Court cannot order an applicant to "file grounds of appeal".

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J U D G M E N T

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Hunter, J. A.:

1. On 10 July 1987 the appellant; Chan Kit, suffered in injury whilst in the course of his employment with the SAM Wo Industrial Manfactory. It seems that his right hand was injury in a moulding machine. We claimed Employee's Compensation and his claim came before an Assessment Board. The precise nature of that assessment whether it was Ordinary Board or a Special Board is unknown. But there was a Review of Assessment dated 29 June 1988 which suggests that at least some part of the review procedures were used. That review assessment assessed his degree of disability at 1%. He disagreed with this ant accordingly made application for compensation in tie Shatin District Court by an application dated 7th July 1988.

2. This application followed Form 1 on the Employees' Compensation (Rules of Court) Rules in paragraph 1 it recited that on 10th July he had suffered personal injury. Paragraph 2 says :-

"An application under the Ordinapce is hereby made by the applicant for the following relief or order -

(a) Compensation under sections 9, 10 and 10A of the Ordinance, and

(b)    Appealing against the decision of the Assessment hoard under Certificate of Review of Assessment dated 29 July 1988 pursuant to section 18 of the Ordinance".

The particulars which follow give his sate of birth, the nature of his employment, the sate of the accident and the nature of the injury. Then under particulars of incapacity and/or constant attention, one finds the words "to be assessed by the Court". Paragraph 6 sets out his monthly earnings. In paragraph 8 under the heading "Amount claimed as compensation" the same formula is used" to be assessed by the Court". Then follow particulars of notice and the identities of the parties.

3. The matter came before H. H. Judge D'Almada Remedios on 12th September apparently on call-over. The applicant was represented; and the proprietor of the respondent firm was present. On that occasion the proprietor accepted liability but disputed quantum ie he was content with the one percent Review Assessment and did not want it raised. The Court then apparently of its own motion made an order that the applicant was "to file grounds of appeal within one month". The judge was invited to review that decision. The affirmation filed in support of the application for review suggested that his order was misconceived; and that the proper approach was to order particulars under rule 18 of the Employee's Compensation (Rules of Court) Rules; and that he could not do that because no request had been made. There was a hearing on 27th September. The matter was considered by the judge and he gave his ruling in writing of 10th October. His ruling was to reject the review and to reaffirm the order.

4. Appeal is now brought to this Court upon the basis that the order was in effect misconceived and that the trial judge misunderstood the meaning of the word "appeal" in the Ordinance. If there was any insufficiency in the form of application made, and counsel acknowledged that criticism could he directed at the use of the phrases "to he assessed by the Court", then the proper remedy was a request for particulars under rule 18 in the form there provided which is Form 6 ie in the form of questionnaire. It was suggested that that could only he done if the respondent made application and that he had not. It is quite true that rule 18 enables the respondent to make an application in these terms, and that the rule does not expressly entitle the Court to make any such order of its own motion. That rule can in this context he contrasted with rule 24(1) which: does authorise the Court to make directions of its own motion. But if in fact a trial judge feels that a respondent is disadvantaged by the inadequacy of the particulars given, he can very easily suggest to the respondent the form of request which he the respondent, should make. Alternatively he can invite the assistance of the Registrar under rule 4 of the Compensation Rules namely to assist the respondent to draft an appropriate questionnaire.

5. Those are in fact points of detail in this case. The real issue is whether the judge was entitlted to make the order he did which was "to file grounds of appeal within one month". In my view, the answer to that Is "NO". The proper procedure was as suggested by the respondent namely the use of Rule 18.

6. The trouble to my mind stems from an misunderstanding as to the meaning of the word appeal" where it is used in this Ordinance. One starts with section 18 which provides

"18.(1)   Subject to this section, an appeal shall lie to the District Court from any decision or assessment of the Commissioner, an Ordinary 'Assessment Board or a special assessment Boar under section 16A, 16D, 16E, 16G or 16GA".

Pausing there, the scheme of the ordinance up to this point is to seek to arrive at an administrative solution to claims of this nature. Quite an elaborate structure is established starting with the Commissioner, then either an Ordinary or a Special assessment Board under sections 16D & E; and then with review procedures either at the instance of the party under section 16G or on the Board's own motion under section 16GA. The plain intention is that these procedures will be final and accepted by the parties. The section then provides for an appeal.

"(2) No appeal shall lie after the expiry of 6 months from the date of the decision …"

with certain provisos plainly therefore the intent is that the assessments are to he final unless appealed within a limited period of time. Then

"(3) On an appeal under this section, the court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs, as it thinks fit".

So that one has provision for Primary assessment, an appeal within a limited period of time; and then a general provision entitling the Court to agree or disagree or substitute its own figures on a hearing.

7. So if you simply pause there, the Court's jurisdiction appears to be appellate. But one has then to remember that theses hoards are acting on their own knowledge. They hear no evidence. They keen no record. They give no reason. So that they provide no material which explains the basis of their approach, they only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded; it is plain that a court approaching this patter has really got to start afresh.

8. That I believe explains the provisions of the next section which is section 18A. It says

"18A (1) Except where otherwise provided under this ordinance, all claims for compensation, except to the extent that such claims are determined –

(a) by certificate under section 16A; or

(b)    by agreement under section 17,

and any matter arising out of proceeding in respect of such claims shall be determined by the District Court…….":

(2)    An employee may, in the prescribed form and manner make an application for enforcing his claim for compensation to the court…"

Those words are significant. The employee is allowed in the prescribed form and manner to enforce his claim for compensation, not expressly to pursue his appeal.

9. The last relevant section to the ordinance is I think section 21(1). This provides

"21(1)    Save as is provided in this ordinance and any rules made thereunder the District Court shall, upon or in connexion with any question to be investigated or determined thereunder, have all the powers and jurisdictions exercisable by the District Court in or in connexion with civil actions in such Court …"

In other words where the matter is not covered by the ordinance and the Rules the District Court exercises its normal civil jurisdiction. In this case the burden of the appellant's submissions have been that the whole of this matter is quite precisely governed first by the ordinance and secondly by the rules.

10. Having looked at the Ordinance, I turn to the Rules, the Employees Compensation Rules of Court) Rules I start with Rule 16(1)

"16(1) An employee or an employer or any other person who desires the determination of any question arising out of an accident in which compensation is or might he claimed shall lodge with the registrar of the court a written application in Form 1, 2 or 3 in the schedule accompanied by particulars containing-

(a)    a concise statement of the circumstances in which the application is made and the relief or order which the applicant claims, or the question which he desires to have determined.

So that the forms A application are laid down subject only to the general power to vary given by rule 3. The forms cover three different circumstances. The first is the form to be used by the injured employee. The second is the form to be used by dependents as a result of the death of an employee. The third is the general form to be used on all other occasion. So the appropriate form here was Form 1.

11. If one simply reads the words of rule 16(a) "a concise statement of the circumstances" and having regard to the fact that this is in one sense an appeal from an earlier review, one might have expected the form to specify or require the applicant to put forward some information in respect of the earlier assessment. But the form dies not so provide an all. The words which this applicant added by way of "Appeal" were an addition of his own to the form for the assistance of the parties. They certainly are not required. There is nothing in the particulars contained in the form which requires any reference whatever to the details of the assessment or to any review. He is simply required to give the nature of of the employment, the date of the accident, the nature of the injury and the particulars of the incapacity. What he may well be said to be required to do under the particulars of incapacity, and under particulars of compensation is to say that he claims and how he arrives at it, and whether in particular he is relying upon an ordinance computation or whether he is going further and seeking to say that it is a case where section 9(1A) applies, all those matters may well be material particulars. But he is not required by the rules to refer to the earlier assessment or review.

12. If the party against whom an application is made is dissatisfied by the information given, then rule 18 allows him to serve on the applicant a request for particulars.

"18(1) The respondent may, not Later than 14 days after be has received notice of applicant serve on the applicant a request in writing in Form 6 in the Schedule for further particulars of the grounds upon which the application is Made…"

Form 6 contains a request for particulars in the form of a questionnaire. So that if there is any defect in this application, if there is any validity in the criticism of the generalities used in answers to the question under paragraphs 5 and 8, the proper remedy here was for the respondent to apply in form 6 for particulars. If he did that, he would be fully enabled to obtain all the information that was necessary for him to assess his position.

13. In those circumstances submits the appellant this is not really a true appeal an all. It is an appeal by way of originating application which is a format forced upon the Court having regard to the pature of the original determination. This is what the ordinance requires; what the Rules require; and what was put in in this case. Therefore there is no basis for ordering the appellant to file grounds of appeal.

14. I agree. The first basis relied upon by the judge were the rules in natural justice. I do not dispute for a moment the truth of his observation when he said "a litigant is entitled as of right it know the case he to meet". That is precisely provided for by these rules and by the provisions particularly of rule 18 that was the rule which should have been operated. He went on then to point out some of the matters which would normally be covered by a Notice of Appeal. But with respect to him these are not matters which can be dealt with by a Notice of Appeal in this sort of application, because the parties do not know the basis upon which these assessment boards arrive at their conclusion. The matter can only be dealt with as a new application, then the judge hearing the evidence and hearing the figure at which the assessment board arrives can make up his own mind as whether their assessment in the light of that evidence is right or wrong.

15. The judge felt able to resort both to the Rules of the supreme Court and indeed the County Rules in England via the District Court Rules. With respect to him section 21 of the Ordinance covers that situation. You do not reach the District Court Rules if the matter is precisely dealt with by the Ordinance and the Employees Compensation Rules, as in my judgment it is.

16. Finally he relied upon Rule 18 to justify the provision of information. I would agree with that up to a point. But if you rely upon rule 18, you have got to comply with the Rule 18 procedures. This is not what he did.

17. So that in my judgment what the judge here did was done with the best intentions, and lone in a hope of clarifying the issues which the court had to decide. But with respect, he adopted the wrong procedure. To that extent, the order for "grounds of anneal" he made, in my judgment as wrong, and should be set aside.

Kempster, JA:

18. I agree that the anneal should he allowed and the order annealed against quashed for the reasons given by my Lord. I would only add that in general terms the procedure envisaged by the legislature appears to be one Involving a degree of informality, and as has an pointed out in the course of argument recourse may be had under Rule 4 of the Employees Compensation (Rules of Court) Rules to the Registrar to give any party information as to matters of form or procedure. In this way any possible lacuna in procedure can be filled.

O'Connor, J

19. I agree with both judgments that have just been delivered.