李錦樹 v. 太古可口可樂香港

DCEC 1206/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1206 OF 2014

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DECISION

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1. This is an application under section 14(4) of the Employees’ Compensation Ordinance, Cap 282 (“the ECO”) for the court to receive the applicant’s application, notwithstanding that the application had not been made in time as required under s 14(1) of the ECO.

BACKGROUND

2. The applicant was a delivery worker working for the respondent.  The applicant’s case is that he suffered right shoulder injury in an accident which happened on 11 May 2011 while in the course of and arising out of the employment with the respondent (“the Accident”).

3. The applicant consulted the company doctor Dr HF Law (an ophthalmologist) the next day after the alleged Accident. Dr Law referred the applicant to an orthopaedic specialist, namely Dr John Daniel Hooley (“Dr Hooley”) on 21 May 2011.  The applicant consulted Dr Hooley at his clinic on 10 June 2011 where Dr Hooley diagnosed the applicant to have suffered from sub-acromial inflammation (「肩周炎」).

4. Between June 2011 and November 2011, the applicant received regular treatments from Dr Hooley based on the above diagnosis.  2 Cortisone injections were given to the applicant during that time, together with physiotherapy, anti-inflammatory medication and analgesia. 

5. However the pain persisted. 

6. On 8 October 2013, the applicant consulted Dr Hooley again for right shoulder pain.  Again, Cortisone injection and medication was given.

7. In March 2014, after the retirement of Dr Hooley and when the applicant was referred by the company doctor to another orthopaedic specialist, namely Dr Tio, an MRI was ordered. The MRI revealed “full thickness tear of the supraspinatus tendon with significant medial retraction and mild atrophy of the supraspinatus muscle”.  The diagnosis made was AC joint arthropathy.

8. It was only then the applicant realized the gravity of the injury and the possible connection between the injury and the Accident.

9. After further communication with the respondent and seeking help from the Labour Department, the applicant issued his employees’ compensation application out of time on 13 June 2014.

DISCUSSION

Relevant legal principles

10. Under s 14(4) of the ECO, “(t)he Court may receive and determine any application for compensation in any case notwithstanding that the notice required by subsection (1) has not been given, or that the application has not been made in due time as required by that subsection, if it is satisfied that there was reasonable excuse for the failure so to give notice or to make an application, as the case may be.” [emphasis added]

11. The Court of Appeal in Tsang Loi Fat v Sun Fook Kong [2011] 4 HKLRD 344 at §10 set out the criteria when considering what may amount to “reasonable excuse”:-

“When the court rules on whether there is a reasonable excuse in relation to a failure by an applicant to make his application for employees’ compensation within the prescribed period, apart from considering thereason for the delay, it also has to consider the length of the delay, whether there is sufficient ground to support an award of employees’ compensation to the applicant; and whether prejudice would be caused to the interests of the respondent if an extension of time is granted by the Court. ……”

[emphasis added]

12. The meaning of “reasonable excuse” can also be found in Wong Man Tak v Shaws & Sons Ltd [1957] HKDCLR 85 at 88-89 which was approved by the Court of Appeal in Lau Suet Fung v Future Engineering Co, CACV 110/2003 (06/02/2004) at §52:-

“It has been generally accepted that a reasonable excuse would be made out whether there was a reasonable belief on the part of the employee that his injury was trivial, or that there had been a mistaken diagnosis of his injury (Wong Man Tak v Shaws & Sons [1957] DCLR 85).”

13. The burden is on the applicant to prove the existence of “reasonable excuse” with credible evidence.  In Chan Wing Chuen v Sun Cheong Bleaching & Dyeing Factory Ltd [1989] HKDCLR 55 at 57:-

“The Employees’ Compensation Ordinance is, in a sense, penal in nature. The employer is made liable to pay compensation in respect of an accident through no fault of his and for which he has done no wrong. It is important to bear firmly in mind that s 14 of the Ordinance constitutes a statutory protection for the employer; a protection which he ought not to be deprived unless all the circumstances warrant the conclusion that reasonable excuse for not complying with the Ordinance has been proved to exist.”

Issues to be decided

14. Accordingly, the following are matters which I need to take into consideration when deciding whether to exercise the discretion in favour of the applicant under s 14(1) of the ECO in this case:-

(a) the reasons for the delay;

(b) the length of the delay;

(c) sufficient ground to support an application; and

(d) prejudice to the respondent.

(a) Reasons for the delay

15. The Court of Appeal in Tsang Loi Fat, at §§11-12 set out the followings:-

“11. In considering the reason for the delay, the court has to take into account the following factors:-

(a) The age, education level, intelligence and background of the applicant ;

(b) Generally speaking, an applicant’s ignorance of the law is not a reasonable excuse for the delay. On the contrary, if the applicant is sufficiently learned and knows how to make a claim, but fails to do so within the prescribed period, this is a factor to support the contention that the applicant has failed to provide a reasonable explanation for the delay;

(c) The health condition of the applicant: whether he was fully aware of the extent of his injury before the expiry of the prescribed period for the claim; or whether his failure to make the claim before the expiry of the prescribed period is because o f his illness; and

(d) Whether the applicant’s failure to make a claim before the expiry of the prescribed period was induced by the conduct of or words said by his employer, insurance company, or a third party.

12. The above-mentioned is not meant to be an exhaustive list.  This court only sets out some relatively common factors here; whether the court would grant an extension of time depends on the facts of each case.” [emphasis added] 

16. Whilst this is a fact-sensitive question depending on the facts of each case, it has been generally accepted that a reasonable excuse would be made out where there was a reasonable belief on the part of the employee that his injury was trivial, or that there had been a mistaken diagnosis of his injury: Lau Suet Fung v Future Engineering Co CACV 110/2003 (unrep., 6 February 2004), §52.

17. Lord Dunedin in Ellis v The Fairfield Shipbuilding and Engineering Company Limited [1912] 2 SLT 485 held:-

“that if a man has an accident, and honestly believes at the time that nothing serious has happened to him, and therefore, not conceiving that he has a good claim against his employer, makes no claim, but it afterwards turns out that he had made a mistake in fact and really had been injured, that may be […] reasonable cause for his not making the claim within the six months.” [emphasis added]

18. In my judgment, there is reasonable excuse on the part of the applicant for failing to make the application in time due to the mistaken reliance on Dr Hooley’s diagnosis that the injury suffered was not as a result of the Accident in this case.

19. In doing so, I have taken into account of the following matters which I consider are relevant:-

(i) The education level of the applicant (he was only educated up to Form 2) and his work background (he came from Laos when he was 16 and had been working for the respondent as a delivery worker since he was 19 until his retirement last year when he reached 55);

(ii) The next day following the occurrence of the Accident, the applicant went to consult Dr Law at the respondent’s clinic at work about the injury;

(iii) He followed the advice of Dr Law by consulting Dr Hooley whom he had consulted some 20 odd years before and who had successfully treated him on that occasion;

(iv) During the consultation with Dr Hooley, the applicant had specifically mentioned the Accident and how he had sustained the injury to the specialist;

(v) Dr Hooley then made the diagnosis that the applicant suffered from sub-acromial inflammation which of course is a chronic disease and not an acute one;

(vi) No sick leave was given to the applicant by Dr Hooley resulting from the Accident and the applicant had to continue to work as normal;

(vii) It had not been suggested by Dr Hooley to the applicant that there was any relationship between the symptoms displayed by the applicant and the Accident;

(viii) It was only reasonable for the applicant to place his trust and confidence on a specialist who had successfully treated him before;

(ix) When the applicant consulted Dr Hooley on the further occasions between June and November 2011, he was not advised by Dr Hooley that there might be a connection between his symptoms and the Accident;

(x) When the applicant presented the same symptoms to Dr Law and Dr Hooley respectively in September and October 2013, it had not been suggested by either doctor that there was a connection between the injury and the Accident;

(xi) It was not until March 2014 when the applicant consulted Dr Tio (upon Dr Hooley’s retirement) that the diagnosis of AC joint arthropathy was made through the MRI ordered by Dr Tio;

(xii) Up to that point there was no reason for the applicant to doubt both the diagnosis and treatments of Dr Law and Dr Hooley;

(xiii) The applicant acted promptly after the receipt of the MRI report (which was dated 21 March 2014) and initiated the present proceedings on 13 June 2014; and

(xiv) It was not until after his operation at the public hospital in December 2014 that the formal diagnosis of “rotator cuff tear” of the right shoulder was made and the connection between the injury and the Accident was firmly established.  

20. The respondent’s main argument is that the applicant has not produced any medical evidence to challenge the diagnosis of Dr Hooley.  The respondent claims that the applicant cannot succeed unless if there is credible evidence to say that the diagnosis of subacromial inflammation made by Dr Hooley was wrong and that the applicant has suffered from tear of supraspinatus tendon, ie rotator cuff tear, as a result of the Accident.  Further, the respondent argues that if the applicant fails to establish that Dr Hooley’s diagnosis in 2011 was incorrect, then the applicant’s mistaken reliance on Dr Hooley’s diagnosis can only be self-induced.

21. With respect, I cannot agree with such submissions.

22. First, Dr Hooley in his report dated 15 January 2015 (which was written after his retirement) concluded that the applicant’s initial symptoms “are probably related to the lifting injury”, ie the Accident.  He also concluded that the recurrence of his pain during the 2 years when the applicant consulted him “may or may not be related to the original episode”.  He further mentioned that if the applicant’s remains symptomatic, then an MRI scan would be worth carrying out to assess the shoulder.  And finally he stated that if the symptoms were major and persisted, then surgery might be offered.

23. In my judgment, Dr Hooley’s report in January 2015 has at least opened up the following arguments in favour of the applicant:-

(i) That Dr Hooley’s initial diagnosis of subacromial inflammation must be in doubt in view of his latest concession that the applicant’s initial symptoms are probably related to the Accident;

(ii) Eventhough Dr Hooley is now unsure about the symptoms during the recurrence of the applicant’s pain, he does not exclude the possibility that they might have been caused by the injury sustained in the Accident;

(iii) He now concedes that an MRI should have been ordered when the applicant’s symptoms persisted which begs the question why it was not done by him during the 2 years when the applicant was under his care;

(iv) He further concedes that surgery intervention should be considered when the symptoms become major and persistent which of course was exactly what the applicant had done at the public hospital in December 2014; and

(v) Both the MRI and the report from the doctors at the public hospital indicate that Dr Hooley’s diagnosis might have been wrong all along.

24. Second, I do not accept that the applicant’s mistaken reliance of Dr Hooley’s diagnosis is “clearly self-induced” as submitted by the respondent. 

25. Mr Lai, counsel for the respondent, in his submission cited the case of Tsang Loi Fat, supra where the court stated that one of the factors to consider is “whether the applicant’s failure to make a claim before the expiry of the prescribed was induced by the conduct of or words said by his employer, insurance company, or a third party.” [emphasis added]

26. In Wong Kwai Lung v Man Yuen Construction Engineering Co Ltd DCEC 501/2002 (29 November 2002) HH Judge Muttrie at §21 stated the following:-

“If the applicant was indeed confused, and mistakenly believed, because of something that he had been told by an officer of the Labour Department, that he did not need to file his Application within the 24 month period, then he has a reasonable excuse. The situation is no different from that where the mistaken belief is induced by the employer in such circumstances as reasonably warrant it. However the mistaken belief would have to be induced by someone. The applicant cannot rely on his own self-induced confusion, or on some kind of pious hope that all would be well.” [emphasis added]

27. The respondent argues that the applicant when suffered the intense pain in the Accident must have realized that the injury was caused by the Accident.  According to the respondent, it would be unreasonable for the applicant to subsequently form a mistaken belief that the injury was not due to the Accident when Dr Hooley simply told the applicant the “correct diagnosis”.  The mistaken belief, if any, according to the respondent, was caused by the applicant’s own “ignorance, misunderstanding and failure to clarify with Dr Hooley”.  Hence, the mistaken belief was “self-induced and unreasonable.”

28. With greatest respect, I do not see how the applicant’s reliance on Dr Hooley’s diagnosis can be self-induced. First, as a layman, it is unrealistic that the applicant would be in the position to challenge an expert’s diagnosis after he had honestly and accurately told him about the nature of his injury and his symptoms.  Second, there was no reason for the applicant to doubt the diagnosis made by Dr Hooley at the time was a correct one as Dr Hooley was an orthopaedic specialist who had successfully treated him before.  Third, had Dr Hooley referred the applicant to obtain an MRI report during the 2 years while he was treating him, he would most probably be able to learn the true extent of the applicant’s injury and make the correct diagnosis.  Rhetorically speaking, if the applicant cannot even trust the specialist referred to him by the respondent’s own doctor, whom he can trust?  And how can one say the belief is self-induced when all the applicant did was to place his trust in the specialist’s opinion and treatments.

29. In the aforestated premises, I am of the view that the applicant has good reasons for the delay in making the application in this case.

(b) Length of the delay

30. In Tsang Loi Fat, supra, at §10 the Court of Appeal stated that the length of delay should be taken into account as part of the consideration of whether there was any reasonable excuse.

31. In this case, the Accident occurred on 11 May 2011.  The statutory time limit of 24 months would have expired on 12 May 2013.  As said, the application was instituted on 3 June 2014.  Hence, there was a delay of approximately 13 months.  This has not been disputed by the respondent.

32. I agree with Mr Ng’s submission that while the delay is not minimal, it is certainly not serious or sufficiently long to justify the court to take an exceptional view as to the merits of the case and the prejudice which may cause to the respondent.

33. In this regard, I have taken into consideration of Tsang Loi Fat, supra where the Court of Appeal took the view that a delay of 16 years was “very long”, while in Lau Suet Fong, supra, the Court of Appeal took a particular adverse view over the applicant’s case which had a delay of 2 years.

34. I am of the view that the length of the delay in each case must be considered in the light of the reasons given by the applicant for the delay and whether it may cause prejudice to the respondent.  In this case, the delay is clearly caused by the applicant’s reliance on Dr Hooley’s diagnosis and treatment and not due to sloppiness on his part.  

(c) Sufficient ground for the application

35. According to Tsang Loi Fat, supra, the longer the delay, the more the applicant has to prove that his claim has an extremely high chance of success.

36. The Court of Appeal has not stated what is meant by “sufficient ground” in the context of the section 14(4) application. I agree with Mr Ng that the court is not asked to take a determinative view as to the merits in the application at this stage.  In my judgment, whether or not there is “sufficient ground” depends on whether there is a prima facie case disclosed in the evidence before the court at the hearing of the application.

37. In this case, I consider that the following circumstances gave rise to a prima facie case:-

(i) There is no dispute by the respondent that the applicant did meet with an accident on 11 May 2011 and that he had consulted Dr Law, the company’s in-house doctor, the day following the Accident;

(ii) There is no doubt that the Accident happened in the course of and arising out of the applicant’s employment with the respondent;

(iii) There are clear and objective evidence that the right shoulder injury was related to the Accident: see discharge slip issued by the Alice Ho Miu Ling Nethersole Hospital  dated 18 December 2014 and Dr Hooley’s report dated 15 January 2015; and

(iv) There is no contrary evidence coming from the respondent – save from the equivocal statement from Dr Hooley that the injury may or may not related to the Accident – that the rotator cuff tear was not related to the Accident. 

38. Based on the above, I am of the view that “sufficient ground” has been established by the applicant and that the applicant has a reasonably high chance of success in this case based on the available evidence.

(d) Prejudice

39. In Tsang Loi Fat, supra at §10, the Court of Appeal mentioned that prejudice should be taken into consideration as part of the “reasonable excuse” test, ie a long delay will cause more prejudice to the interests of the respondent than a short one.

40. In my view, the delay in this case (of 13 months) although was not a short one cannot be described as very lengthy also.  However, the more pertinent point being that it has not been heard that the respondent is complaining it has suffered any prejudice as a result of the delay in the application. 

41. Indeed, I cannot see how the respondent will able to say that as it has all along had knowledge of the Accident.  This is firstly through the applicant informing the truck driver Mr Kwok Chi On on the day of the Accident; and secondly through informing Dr Law the company’s doctor the day after the Accident. 

42. In Tsang Lo Fat, supra, the Court of Appeal has placed difficulties in gathering evidence to gather evidence and the fact that the compensation had already been paid in that case as prejudice to the respondent.

43. In this case, given the fact that the respondent has all along had knowledge about the Accident and appears to have no difficulty in gathering evidence both in relation to the Accident itself and the injuries suffered by the applicant, I do not consider any prejudice will be caused to the respondent.  Further, in this case, no compensation had been paid.

CONCLUSION

44. In conclusion, based on the aforestated reasons, I will exercise my discretion in favour of the applicant and grant leave to him to issue the application out of time under s 14(4) of the ECO.

45. I shall also make a costs order nisi that the respondent to pay the applicant’s costs of the application, such costs to be taxed if not agreed, with certificate for counsel.  Unless any party applies to vary the costs order within 14 days, the costs order will become absolute.

46. Lastly, I would like to thank counsel on both sides for their assistance.