XCHRX NG KIN LAM v. HONG KONG AIRCRAFT ENGINEERING COMPANY LTD.

DCEC717/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 717 OF 2000

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J U D G M E N T

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1. This is a matter in which the applicant, who is making a claim for compensation under the Employees' Compensation Ordinance ("the Ordinance") is three days out of time in bringing his application. It is a case to which section 14(1) and section 14(4) of the Ordinance apply. Under section 14(1) an application must be made to the court within 24 months of the date of the accident, but under section 14(4) the court may receive and determine an application made outside the 24 month time limit if it is satisfied that there was reasonable excuse for the failure to make the application in due time.

2. Although the application is barely out of time, the respondents have strongly resisted the application and, in my judgment, with considerable justification. Before I turn to the facts, it is helpful to set out the principles which a court must apply in deciding applications of this kind. A much cited case in applications of this type is Wong Man-tak v Shaws & Sons Limited [1957] DCLR 85, a decision of Judge Charles in this court, where at pages 88 to 89 of the report he 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 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 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 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 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 that 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."

3. I apprehend this to be the correct approach to adopt in deciding this type of application. This was followed by Judge D'Almada Remedios in 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 BWCC 420, held that ignorance of one's rights cannot amount to a reasonable excuse. (See page 56D 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 is not reasonable excuse. Rolls v Pascal & Sons [1911] 1 KB 982 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 BWCC 420. 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 any 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. Furthermore, "reasonable cause" 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."

4. Mr Claypole, who appears for the respondents, has also referred me to three of my decisions on identical applications, but I get no real assistance from them because each turned on its own particular facts on what I perceived to be a proper application of the relevant legal principles.

5. From this, I turn to the background and the facts as relied on by both parties. The applicant has filed two affirmations, the first on 13 September this year and a second on 17 October in reply to the affidavit of Mr Claypole. The chronology is as follows:

6. The applicant is now aged 29. He was injured in the course of his employment on 9 September 1999 whilst servicing an aircraft at Hong Kong International Airport. The application for compensation was made on 12 September this year which, as I have already observed, was three days out of time. As appears from his first affirmation, the applicant was given sick leave from 9 September until 5 December 1999. He then returned to work for 11 months and from 17 November 2000 he has been given further sick leave which is continuing.

7. There is no medical report at this stage but it appears that the applicant had sustained a lower back injury which must have resolved sufficiently to enable him to return to work three months after the accident and to continue working for almost a year, but it then recurred, presumably in a way that was referable to the original injury, so that he has been unable to resume work. So far, he has received about $80,000 in periodical payments from the respondents.

8. The applicant says that his injury was reported to the Labour Department who were processing his claim for him from the outset. In paragraph 6 of his first affirmation, he says that in mid-August 2001 Miss Cheung from the Labour Department wrote to him to say that she wanted to interview him and arrange legal assistance because the limitation period had nearly expired. He met her at her office at about the end of August when she noted that his temporary incapacity had not yet crystallised and further sick leave had been certified by various doctors, and she suggested he apply for Legal Aid to secure his rights to periodical payments. He agreed. In early September he received a letter from Legal Aid to attend their offices on 11 September. The following day this application was filed with the court. He says he knows nothing of the law nor of the statutory time limits and that he left it all to the Labour Department.

9. A materially different picture emerges from Mr Claypole's affidavit. Exhibit "RCC1" is a letter from the Labour Department dated 11 October 2001. Given its importance, I will set out its material parts here.

"I refer to your letter of 5 October 2001. Please be informed that this department has drawn the attention of the abovenamed to the provisions of ECO concerning the two-year time limit for commencing employees' compensation proceedings. Two letters have been sent to the abovenamed on 9 March 2001 and 9 May 2001 to the address as stated in the Form 2 reported by the employer. On 14 June 2001 this department received a reply slip from the abovenamed informing he would like this department to continue to process his employees' compensation case and did not wish to lodge claim at court. However, on 28 August 2001 the abovenamed changed his mind and turned up to our office indicating he would like to lodge claim at court for his employees' compensation case now. A copy of the aforesaid sample letter is enclosed for your reference as it is standard letter and this department has not kept a duplicate letter to the abovenamed. The sample letter is the following:

'Dear Sir/Madam,

Important issues regarding compensation on injury at work

Name of injured employee

Date on which injury occurred.'

"According to the department's record your injury at work has been over 18 months and the related compensation is still not settled. For this matter the department wishes you to pay attention to the following:

1. Pursuant to condition No. 14(1) of the Employees' Compensation Ordinance, should any cases regarding injury at work not be settled by direct settlement, certificate of compensation assessment or compensation by agreement between employer and employee but the employee still wishes to make a claim, an application for compensation for injury at work should be put forward to the District Court within 24 months after the accident occurred. Should the application be put forward after the expiry of such 24 months without reasonable explanation, the court could ignore such application.

2. Pursuant to condition No. 10(5) of the Employees' Compensation Ordinance, should any employees be granted sick leave owing to injury at work occurred on or after 1 February 1995 and until 24 months thereafter such sick leave is granted to be extended, one can put forward an application to the court to extend the period of receiving periodical payment, such further period should not exceed 12 months. Unless otherwise approved by the court, no employee should be entitled to receive periodical payments for more than 24 months.

The department wishes to follow with the latest condition of your injury at work in order to give you proper assistance and to put forward an application to make a claim on such injury to the court in time. To protect your right and interest and to avoid to be disqualified to put forward a claim after the deadline, please contact the staff of the department within 14 days after issuance of this letter."

10. The applicant has responded to this in his second affirmation. He accepts that he received the Labour Department's first letter in March 2001. He says the department staff did not explain this letter to him. He also accepts that he got the second letter in May. He says that he indicated to the department that he did not wish to go to court because his understanding was that if the assessment board made an assessment of his loss of earning capacity, his employers would be required to pay in line with that assessment and there would be no need to pursue the matter in court. On this understanding he told the department that he did not wish to apply through the court. He goes on to explain that it was not until mid-August that he realised the true position following his interview with Miss Cheung when he decided to make an application to this court.

11. The facts show two distinct periods. The first is from September to December 1999, being the first period off work, and then from November 2000 until the expiry of the limitation period on 9 September 2001 and continuing, where the applicant continues to be certificated as unfit for work.

12. Throughout these periods the applicant's case has been processed by the Labour Department. Its officers have always been available to him for advice should he have required it. Clearly, a system is in place to warn injured workmen after 18 months of the impending expiry of the 24 month limitation period. This is why these standard letters are sent out as a matter of course. They are sent to alert a claimant of his situation. I am satisfied that the applicant made an informed decision after the second letter in May not to come to court and then changed his mind in late August by which time it was too late for the legal aid procedures to catch up with the now imminent expiry of the limitation period.

13. The applicant says that Miss Cheung failed to properly explain the effect of the first letter in March. But when one stands back and considers the two letters and the opportunities available to the applicant to make an informed decision, I am completely satisfied that he was able to and did make such a decision in May or June not to come to court when there was still ample time to make such an application.

14. To follow the applicant's case at face value is to impose a "nurse-maid approach" in these matters, which is neither required by the Ordinance nor is necessary. The system which is in place is straightforward and well tested. The Labour Department on a daily basis assists claimants to process their applications. The applicant is relatively speaking a young man, and although his injuries may justify his remaining away from work, I don't understand them to be so debilitating that they impair his mental faculties nor his ability to speak with the Labour Department or, indeed, to go and see them. This application could have been made at any time during the two-year period. The applicant has made an informed decision not to come until it was too late to apply in time. The Legal Aid Department are not to be blamed, as Ms Hung for the applicant, was trying to suggest. This was not their only case. They are a busy department and they dealt with it expeditiously as soon as it got into their system. There is, therefore, no reasonable excuse for the delay.

15. This, then, leaves over the other important feature which is that after all is said and done, the applicant is only three days out of time. There has been no forensic prejudice to the respondents caused by the delay. They have always known of this matter and they have been paying periodical payments. I would have thought that where I am exercising a discretionary jurisdiction, this minimal delay is a matter that I should properly take into account in the applicant's favour, and I do so. Nevertheless, I am required to look at all the circumstances of the case, which I have, including how it has come about that the applicant has failed to bring his application within the two-year period. In this case, on my finding, he failed to do so following an informed decision when there was still plenty of time to make the application. This, followed by a late change of mind, which gave insufficient time to make a timely application. In all the circumstances, I have decided not to exercise my discretion in the applicant's favour. I refuse to extend time. The application must therefore stand dismissed. This must then leave him to wait for the Assessment by the Board and either to accept it or appeal to this court against the Assessment under section 18 of the Ordinance; and also, if he is advised to, to bring an action at common law for damages. These are matters for him to decide with his solicitors, which play no part in the decision that I have just made.

16. It should be remembered that time limits of this sort should be respected in what is a statutory scheme designed to provide a swift and uncomplicated system for an injured employee to obtain compensation due to his inability to work. Whilst the court retains a discretion to accept applications that are made out of time, will only do so where reasonable excuse has been made out, which carries an obligation on a late applicant to make out his case in a cogent and rational way which, in this case, he has failed to do.

17. So the application is dismissed with costs together with Legal Aid taxation of the applicant's costs.