XCHRX Li Wai Keung v. Ho Biu Kee Construction and Engineering Co. and Another

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 930 OF 2000

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R U L I N G

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1. This is an application for employees' compensation which is brought by the applicant under the Employees' Compensation Ordinance.

2. The purpose of the Ordinance is to provide for a scheme for compensating workmen who have been injured in the course of their employment and it is a scheme that is intended to operate in the ordinary course of events, quickly and in a relatively uncomplicated way. With that in mind, the Ordinance provides that a claim for compensation should be brought no later than two years following the date of the accident, although the court retains the power to extend time for proper cause.

3. The alleged incident giving rise to the claim occurred on 29 August 1997 when the applicant is said to have strained his shoulder in the course of lifting a heavy object. The application is dated 27 October 2000, so three years and two months after the date of the accident. It is therefore 14 months out of time.

4. The applicant now applies under section 14(4) of the Ordinance for leave to bring the matter before the court notwithstanding the expiry of the limitation period. In order to succeed he must demonstrate that he has a reasonable excuse as to why he did not bring the application within the two year period. He supports the application by an affirmation made by him on 31 January this year.

5. The respondents resist the application and they have put in two affirmations in support of their case. The material facts appear to be as follows:

6. The applicant first went to the Shun Lee Medical Clinic on 9 September, that would be about 12 or 13 days after the date when he says he was injured. I have before me dated June 2000 a report from that clinic which shows that the applicant was treated conservatively on a number of occasions between 9 September and 13 October 1997 and during this period he was certified as sick. He was then advised to go to the orthopaedic clinic at the Queen Elizabeth Hospital, I assume for physiotherapy.

7. He then went to the Legal Aid Department to be informed of his rights and also with a view to being represented by that department in prosecuting this claim. He took that step on the advice of the Labour Department who he had already contacted for assistance. I do not know when, but I accept from the applicant that the Legal Aid Department having investigated his case said that they would grant him legal aid, but only on terms that he should make a contribution of $40,000. The applicant did not accept the Legal Aid Department's terms and so he has dealt with the matter on his own with the assistance of the Labour Department.

8. Five months after the accident, the Labour Department in February 1998 contacted the 2nd respondents, asking them to lodge the Statutory Form 2. In May 1998, the 2nd respondents replied saying that there was no such employee. 15 months were then to go by until August 1999, so a few days before the expiry of the limitation period, when the Labour Department wrote to the 2nd respondents enclosing evidence of the applicant's employment in the form of a cheque or cheques and sick leave certificates.

9. Since then, the applicant has allowed another 141/2 months to go by before he made this application for compensation. Between August 1999 and October 2000, the only other thing that appears to have happened is that Shun Lee Clinic produced a medical report which is the one that I have already referred to and which is exhibited to one of the respondent's affirmations.

10. The question that I have to ask myself is has the applicant shown reasonable excuse for the delay? There is clear authority to the effect that ignorance of one's legal rights in making the application cannot amount to a reasonable excuse, but one always makes allowances for applicants, many of whom, and in my view far too many, are unrepresented. Most of them do not have a high level of education. They find form filling, government departments and legal procedures confusing and they perhaps require more time than a more sophisticated or better educated individual to react to the various steps that they have to take in processing these sort of applications. So one is sympathetic for those reasons. But it also needs to be remembered that the law provides for a generous two year period.

11. I have listened with care to what the applicant has had to tell me, I have read his affirmation, and he has also addressed me at some length and I have encouraged him to do so. He seems to be prepared to blame everybody else - the Legal Aid Department, the Labour Department, the respondents, but he has not had one word of self-criticism. When I drew that to his attention, he seemed to adhere to that, that there were a number of other people to blame for the delay, and he did not seem to appreciate that he was in any sense at fault in perhaps having contributed to some of that delay.

12. It is right to say perhaps that the respondents have not reacted to some of the requests made of them by the Labour Department with particular haste, but there is nothing in their conduct which could have prevented the applicant from issuing his application in timely fashion, and there is nothing in their conduct that should have made him think that he should have held off because perhaps they were going to settle the case or anything of that sort.

13. If anything, that should have encouraged him to at least make the application and have it before the court, certainly within the two year period or at least shortly after the two year period had expired. I am afraid this has all been far too leisurely. He has failed to demonstrate any sense of urgency. There is nothing in the conduct of the respondents that he can properly rely on as excusing his own tardiness and I am afraid he has fallen a very long way short of making out any sort of reasonable excuse for this situation.

14. Accordingly, this application must stand dismissed, with costs.

15. Although I do not suppose the respondents will be throwing away good money after bad by seeking to enforce this order, I expect he is not the sort of individual who can afford to pay the costs, but they are entitled to their costs.