WONG CHIN WAH v. VARITRONIX LTD

DCEC 1105/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1105 OF 2005

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Reasons for Ruling

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1.  This is the Applicant’s application for:

(a) an extension of time to appeal against the Certificate of Review of Assessment (Form 9) dated 8/10/2003 pursuant to s.18(2) of the Employees’ Compensation Ordinance, Cap. 282 (ECO).

(b) leave to cancel the Certificate of Review of Compensation Assessment (Form 6) dated 13/10/2003 pursuant to s.16B(2) ECO; and

(c) leave to proceed with the Application for Compensation out of time pursuant to s.14(4) ECO.

Background

2.  On 8 July 2002, the Applicant, whilst in the course of his employment as a coach driver with the Respondent, was scalded by the steam coming out from the water gauge of a 20-seat bus of the Respondent.  The Applicant suffered, as a result of the said accident, scald injuries over his face, anterior abdominal wall, right forearm and right hand.

3.  The Applicant was then admitted to the Tseung Kwan O Hospital (“TKOH”).  Initially, he was admitted to the Orthopaedics & Traumatology Department of TKOH for treatment and discharged from the hospital on 18 July 2002.  Referral was then made to the Eye Clinic of TKOH, with the first appointment then took place on 29 July 2002 for bilateral tearing of his eyes.

4.  Physiotherapy treatment was then given to him and he received 28 sessions until 7 February 2003.  He also received treatment at TKOH Eye Clinic for stenotic right upper and lower puncta and left upper punctum.  The Applicant was subsequently referred by TKOH Eye Clinic to receive further treatment in the Eye Clinic of United Christian Hospital (“UCH”).

5.  On 17 February 2003, the sick leave granted to the Applicant ended and he resumed work.

6.  On 18 June 2003, he was examined by the Employees’ Compensation Assessment Board (the Assessment Board).

7.  On 2 July 2003, the Certificate of Assessment (Form 7) was issued which certified the Applicant’s injury as “Scald injury resulting in residual stiffness over right arm” and the loss of earning capacity permanently caused by the injury as 1%.

8.  On 4 July 2003, the Certificate of Compensation Assessment (Form 5) was issued certifying the amount of compensation as $130,402.06.

9.  The Applicant applied to the Commissioner for Labour for a review of Form 7.

10.  On 8 October 2003, the Assessment Board reviewed the assessment and issued the Certificate of Review of Assessment (Form 9) which certified the injury as “scald injury resulting in residual stiffness over right arm and numbness over right hand” and revised the loss of earning capacity as 2%.

11.  On 13 October 2003, the Certificate of Review of Compensation Assessment (Form 6) was issued certifying the amount of compensation as $144,831.79.

12.  On 21 October 2003, the amount of the compensation was paid by the Respondent.

13.  On 7 April 2004, the 6-month time limitation for appeal against From 9 expired pursuant to section 18(2) ECO.

14.  On 7 July 2004, the 2-year time limitation for institution of proceedings for application of employees’ compensation to Court expired pursuant to section 14(1) ECO.

15.  On 17 September 2004, the Applicant was first seen at UCH Eye Clinic for left eye epiphora (watering eyes) and ptosis (dropping of eyelid).

16.  In January 2005, because of his persistent tearing on left eye, the Applicant received punctoplasty of left upper and lower puncta at TKOH.

17.  On 12 July 2005, the Applicant received surgical correction for his left eye senile ptosis at UCH.

18.  On 15 September 2005, the Applicant filed the application out of time for employees’ compensation, and applications for appeal against and cancellation of Form 9.

19.  On 26 June 2006, the Applicant took out summons to apply for leave to proceed with his applications out of time (subject matter of this hearing).

The Applicant’s case

20.  The Applicant explains in his affirmations that the accident took place when he was carrying out a routine check on the 20-seat bus.  When he was loosening the cover of the coolant reservoir, a sudden outburst of steam released from the water gauge causing as a result scald injuries in his face, right arm and hand, and right side of his trunk.  He also suffered persistent tearing, eye discomfort and fogging of vision after the accident.

21.  After the accident, he was referred to the Eye Clinic of the TKOH for treatment of his eyes.  Meanwhile he continued to receive treatment with the Orthopaedics & Traumatology Department of TKOH.

22.  When he first attended TKOH Eye Clinic, he was told by the doctor that his tearing problem was due to the hot steam in the accident.  The doctor comforted him that his eyes injuries should not be very serious and the tearing and fogging of vision might improve gradually.

23.  Prolonged treatment was then continued with TKOH Eye Clinic, but the Applicant was not told of the seriousness of his eye injuries.  He was eventually referred to the Eye Clinic of UCH for further treatment.

24.  The Applicant says he was only told of the seriousness of his eye problem by the Eye Clinic of UCH by the end of 2004 that his tearing problem and fogging of vision were irreversible.

25.  The Applicant says the assessment by the Assessment Board on 18 June 2003 (Form 7) and on 24 September 2003 (Form 9) were arranged at a time when the Applicant’s eye injuries were still in the midst of treatment, with the seriousness and irreversible nature of tearing problem not yet been revealed.  The Assessment Board therefore omitted to assess the Applicant’s eye injuries in the certificates of assessment.  However, the eye injuries can clearly be revealed in the later assessments by Eye Clinic of UCH and by Dr. Kenneth Ng, a Specialist in Ophthalmology.

26.  The Applicant further complains about the conduct of the Respondent.  He says after the accident, there was a substantial cut in the Applicant’s overtime allowance.  Moreover, he was warned by the Respondent in an intimidating manner when he indicated his dissatisfaction over the certificates of assessment.

27.  The Applicant says after receiving the Form 9, Ms. Hsu of the Respondent asked him whether he would have any objection to the assessment.  When the Applicant indicated that the assessment was too low and that the assessment did not include his eye injuries, Ms. Hsu intimidated that he should not stir up any troubles as that would bring him no good at all.  When the Applicant wanted to reason with her, Ms. Hsu asked him to shut up or he would be fired.

28.  Later a Mr. Chung, director of the Respondent, said to him again that if the Applicant wished to keep his job, he had better act obediently.

29.  The Applicant further suggests that a Ms. Leung who was sent by a loss adjusters’ firm did not advise him to object to the Form 9.

30.  In order to keep his job to support his young children and to make mortgage payments, he did not pursue the employees’ compensation.

31.  In about end of May 2005, despite of his obedience, Ms. Hsu informed the Applicant that he was dismissed for a trivial matter.  The Applicant found that his efforts in keeping the job had been proved futile, he then approached the Legal Aid Department for assistance.

32.  However, 4 days later, out of some unknown reasons, the Respondent told the Applicant to resume duties.  Since the Applicant had lost his confidence in the Respondent, he determined to pursue his rights for employee compensation with the assistance of the Legal Aid Department.

33.  On 28 February 2006, the Respondent dismissed the Applicant again on the purported ground of re-allocation of resources.  However the Applicant found out that his job was simply replaced by another colleague.

Summary of Applicant’s grounds of application

46.   Mr Lam, solicitor for the Applicant, summarizes the Applicant’s case as 4 grounds:

(i)      oppressive and inequitable conduct of the Respondent;

(ii)      misleading or mistaken diagnosis of TKOH Eye Clinic;

(iii)     Applicant’s belief (induced by Respondent) that the compensation was impossible/impracticable;

(iv)     unfair, arbitrary and premature assessment by the Assessment Board.

The Respondent’s Case

34.  The Respondent does not make any affirmation in reply.  Instead, Miss Linda Lee, partner of the solicitors acting for the Respondent, made an affidavit in opposition.  In the affidavit, Miss Li says she was instructed to deny that the Respondent had acted unreasonably as alleged by the Applicant.  The reason for the dismissal of the Applicant was simply redundancy.

35.  The Respondent relies on the opinion of the Respondent’s expert, Dr. Yu, a Specialist in Ophthalmology, that it is highly improbable that there was any casual link between the Applicant’s ocular condition and the accident.

Summary of medical reports

36.  Dr Tang Wai Tat, Wilson, Medical Officer of the Department of Ophthalmic

-    Applicant was first seen on 29 July 2002 for bilateral tearing.

-    Ocular examination revealed no significant ocular signs of thermal injury and normal eyelids without scars.

-    no permanent visual disability related to his previous injury at work.

37.  Dr. Chung Chong Fai, Medical Officer of Department of Ophthalmology, UCH

-    Applicant first seen on 17 September 2004 for left eye epiphora and ptosis 

-    Left eye tear meniscus was slightly elevated and punta of left upper lid and left lower lid were small and enlarged with punctal dilator

-    Left eye levator aponeutosis plication was done on 12 July 2005

-    There was over-correction of left eye ptosis after operation

-    Permanent disability of left eye was 5%

38.  Dr. Kenneth WH Ng, Specialist in Ophthalmology

-    During the medical examination on 21 December 2005, the Applicant was found to have severe stenosis of both upper lacrimal punta and moderate stenosis of both lower lacrimal punta.  This accounts for the persistent tearing that he has been complaining about.  This ocular condition is compatible with and is caused by the said scald injury.

-    He had suffered 1% whole person impairment and 2% loss of earning capacity as a result of the said accident.

-    Dr Ng disagreed with Dr Christopher Yu’s opinion that it was improbable to have a direct causal relationship between the Applicant’s eye condition and the accident.

39.  Dr Christopher Yu, Specialist in Ophthalmology

-    the Applicant’s condition is likely to be idiopathic punctal stenosis being one of the most common causes

-    highly unlikely that punctal stenosis can occur after a facial burn without extensive collateral damage

-    a direct causal relationship between his ocular condition and the accident is highly improbable.

-    not in a position to objectively conclude what permanent visual disability, or loss of earning capacity

The Relevant Statutory Provisions

40.  Section 14(4) ECO provides that:

“(4)        The Court may receive and determine any application for compensation in any case notwithstanding … that the application has not been made in due time as required (i.e. 24 months , under section 4(1)), if it is satisfied that there was reasonable excuse for the failure … to make an application …”

41.  Section 16B(2) ECO provides that:

“An application under subsection (1) shall be made within 6 months of the date of issue of the certificate in respect of which the application is made, or within such further time as the Court , in the circumstances of any particular case,  thinks fit ”.

42.  Section 18(2) ECO provides that:

“No appeal shall lie after the expiry of 6 months from the date of the decision or, in the case of an assessment, of the date of issue of the relevant certificate under section 16A, 16F, 16G or 16GA, as the case may be … Provided that the Court may, if it thinks fit , extend the time within which to appeal under this section notwithstanding that the time has elapsed.”

43.  The application for compensation under sections 9, 10 and 10A of the ECO was made about 14 months out of time.

44.  The applications for appeal against and for cancellation of From 9 were made about 17 months out of time.

The Issue

45.  The issue before me is whether the Applicant has shown a “reasonable excuse” for not having made the application for compensation within the 24-month time limit, and whether he can satisfy me that the court should exercise the discretion to extend the time for his application for appeal against and to cancel the Form 7.  The onus is on the Applicant.

The Legal Principle

Reasonable excuse

46.  I will first deal with the principle which a court must apply in deciding whether the Applicant has a reasonable excuse.  Both parties have referred me to the opt-cited case of Wong Man Tak v Shaws & Sons Ltd [1957] DCLR 85, where at pages 88 to 89 of the report HH Judge Charles considered the way in which the expression “reasonable excuse” was to be interpreted.

“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 case 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 of 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, a 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 36^th 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 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 claim was prevented by a reasonable cause unless he could show that he had good reason for not making his claim before the cause arose Aldridge v Warwickshire 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.”

47.  This approach has been generally considered as the correct approach to adopt in deciding this type of application (see Lau Suet Fung v Future Engineering Co, CACV 110 of 2003).

“If it (the court) thinks fit”

48.  In order for the court to exercise the discretion “if it thinks fit” under s.18(2) of ECO, the court has to be provided with all relevant factors including the length of delay, the reason for the delay, the merits of the application and the prejudice to the other party if the extension is granted (see Chung Sau Ling v Million Join Ltd, ([2003] 4 HKC 561).

49.  An application to cancel the Form 7 under s.16B(2), can only be made within 6 months, or such further time as “the court, …………. thinks fit.”

50.  The applications under s.18(2) and s.16B(2) are often made for apparent reasons at the same time.  I would have thought that the test enunciated in Chung Sau Ling would also be applicable in a s.16B(2) application.

The opposition by the Respondent

51.  Mr. Chan, Counsel for the Respondent, submits that the Applicant’s complaint about the Respondent’s inequitable conduct, which is denied, is irrelevant since this complaint does not fall within anyone of the 4 limbs of the test enunciated by HH Judge Charles in Wong Man Tak.

52.  In my judgment, however, I think the 4 examples of reasonable excuses identified by HH Judge Charles were only quoted to illustrate the principle. They were not meant to be an exhaustive list.

53.  The principle deduced from the cases, which HH Judge had considered, is in the last sentence of the paragraph in Wong Man Tak I had quoted:

“The principle to be deduced from the foregoing is, I think, 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.” (emphasis provided)

54.  In my view, if an employee has delayed his application for employee compensation because he has been threatened by his employer not to do so, the employer’s conduct must be a relevant factor in considering whether the employee has a reasonable excuse.

55.  The Applicant identifies 4 grounds in the Applicant’s case.  It appears to me that the third ground is based on the Respondent’s conduct and therefore it should more conveniently be dealt with together with the first ground.  I will first deal with the second ground which I think is less forceful than the other reasons.

56.  In this ground the Applicant suggests that he has been misled by the Eye Clinic of TKOH over the nature and prospect of recovery of his eye injuries.  In my view, even if it was true that the Applicant only knew of the serious nature of his eye injury at the end of 2004.  I would still find that it is unreasonable for him to file the applications after 9 months in September 2005.

57.  I now come to the other grounds which I think are more important in this application.

The Respondent’s inequitable conduct

58.  The Applicant’s suggestion that he was unfairly dismissed, in my view, does not add much significance to this complaint because the actual dismissal took place after the filing of the Applicant’s applications.

59.  The complaint that he was misled by Ms Leung, allegedly a medical staff of a loss adjuster’s firm is also unarguable.  In my judgment, Ms. Leung, instructed by whosoever, was not in a position to give the Applicant any legal advice.  Moreover, in the Applicant’s affirmation, the omission of Ms. Leung to advise the Applicant to pursue the matter further cannot amount to any misleading conduct on her part.  In any event, I find it is not reasonable for the Applicant to rely on her advice.  In my view, the Applicant’s complaint in this regard has nothing in it.

60.  The important part of this complaint of the Applicant is that he did not pursue the application for employees’ compensation because of the threats by Ms. Hsu and Mr. Chung of the Respondent that if he caused further troubles, he might lose his job. 

61.  I bear in mind that this is a serious allegation which is always easy to make against an employer. The Applicant must adduce cogent evidence.

62.  The Applicant has filed an affirmation giving specific allegations and details of the meetings with Ms. Hsu and Mr. Chung as to how he was threatened.  However, on the other hand, there is no evidence filed by either Ms. Hsu or Mr. Chung to deny the Applicant’s allegation.  When the Applicant has named Ms. Hsu and Mr. Chung as the people who threatened him, in my judgment, there should be evidence from them directly about the allegation.  While there is an affirmation of the Respondent’s solicitor to deny it, this is obviously of limited weight. 

63.  On the evidence before me, I cannot exclude this complaint of the Applicant as improbable.  If the Applicant had been threatened by the Respondent and he succumbed to such threat because he needed the job to support his family, his decision not to pursue his compensation cannot be said to be unreasonable.  This reason alone in my judgment would be sufficient to constitute a reasonable excuse in the delay.

Unfair, arbitrary and premature assessment

64.  It appears to me that Mr Lam’s argument in this ground is that

the Form 7 has not taken into consideration of the Applicant’s eye conditions in the assessment and therefore it is a wrong assessment. 

65.  Mr. Chan submits that the Applicant’s alleged eye condition is unrelated to the accident.  He has very helpfully assisted me to understand the medical reports, in particular the report of Dr Christopher Yu, in support of his contention.

66.  However, while there is medical evidence from Dr Yu with reasons for his opinion that a direct causal relationship between the Applicant’s eye condition and the accident is highly improbable, there is also medical evidence of Dr Kenneth Ng in favour of the Applicant’s contention that his present eye condition was caused by the accident.  Dr Ng has also given reasons for his opinion and his disagreement with Dr Yu.

67.  When there is a conflict of medical evidence, I do not think that the court is able to make a finding of the causation issue at this stage without a trial.

68.  What is more important at this stage, in my judgment, is to look at the medical history of the Applicant in its entirety. 

69.  There is evidence from the Applicant’s affirmation that he only suffered persistent tearing, eye discomfort and fogging after the accident.  There is no evidence before me to contradict this assertion.

70.  The accident occurred on 8 July 2002.  Soon after his discharge from hospital on 18 July 2003, the Applicant had his first examination of his eyes for bilateral tearing at the Eye Clinic of TKOH on 29 July 2002.  Since then he had prolonged treatment for his eyes.  Moreover, his face was scalded by the steam.  In my judgment, there is a likelihood that his present eye condition was caused by the steam in the accident.

71.  If the eye condition is caused by the accident, the Form 7 is wrong for the omission to take into account the eye condition.

72.  On the other hand, I can see no forensic prejudice to the Respondent in this case.

Conclusion

73.  On the evidence before me, I am satisfied that the Applicant has discharged the onus of showing that there was reasonable excuse on his part in brining the application for compensation out of time.

74.  For the same reasons given by the Applicant, I am also satisfied that it is a suitable case for the court to exercise its discretion to extend the time for the applications under s.18 and s.16B.

75.  I therefore grant leave for the Applicant to proceed with the applications in terms of paragraphs 1 to 3 of the summons dated 20 June 2006.

Costs

76.  I have already heard submissions of parties on matter of costs. The normal rule is that costs should follow the event.  However, though the Applicant has succeeded in this application, he is asking the court for indulgence for his rather lengthy delay in his applications.  The Respondent cannot be said to be unreasonable in its opposition to the application.  It is only fair in the circumstances to order costs of this application be to the Respondent, in any event, with certificate for counsel.