Leung Ming Tim v. Fan Tai Kan t/a Kan Kee Co.

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 318 OF 2001

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J U D G M E N T

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1. This is an application under section 14(4) of the Employees' Compensation Ordinance ("the Ordinance") by the applicant for the court to hear and determine his application for compensation under section 18A of the Ordinance, notwithstanding the expiry of the two year limitation period provided for under section 14(1).

2. The application for employees' compensation which is dated 8 May 2001 is 4 1/2 months out of time. It includes an appeal under section 18 of the Ordinance against assessments of loss of earning capacity by the Commissioner for Labour and of the Employees' Compensation (Ordinary Assessment) Board. Those appeals are in time and therefore maintainable as of right. The applicant does not require the court's leave to hear these appeals.

3. As Liu JA put the matter in the Court of Appeal decision of Chung Lung-shun v Adams Parking International Limited [1996] HKLR 49, the scheme for Workmens' Compensation established under the Ordinance provides for "two routes, one regime." The practical outcome for the applicant would be the same by an appeal under section 18, which he now brings as of right, or by an application under section 18A which is time-barred unless I give him leave.

4. Mr Lee suggests that a section 18A and a section 18 application are dependant on each other, but that in my view, is wrong analysis. They are separate means by which an applicant can come to court in order to get compensation for his injuries.

5. I indicated to Mr Clancey who appears for the applicant, during the course of the argument, that there was no practical purpose to be served by seeking leave for the section 18A application, but he would prefer to come by both routes if that were possible.

6. In order to obtain leave under section 14(4) an applicant must show that he has a reasonable excuse for not having started within the two year limitation period. The expression "reasonable excuse" has been equated with reasonable cause in Wong Man-tak v Shaw & Sons Limited [1957] DCLR 85. Whatever label one attaches to it, the test is the same. A brief chronology will assist in understanding how the application is put.

7. The applicant was injured on 24 January 1999. The limitation period therefore expired on 24 January 2001. He sustained serious injuries to his head, face and left eye. At the time he was working on a barge helping to unload a container from a cargo vessel onto the barge. The cable used in the lifting operation snapped and he was hit by the free-swinging cable. His left eye had to be operated on on the same day and also on 2 February 1999. The damage to this eye was so severe that it had to be eviscerated (removed) and on 30 July 1999, an eye prosthesis was inserted. He was greatly upset by these injuries and required psychiatric treatment and support on a regular basis.

8. He was first interviewed by the Labour Department in February 1999. Sick leave was prescribed from the date of the injury until 4 October 2000. Clearly, this was a traumatic injury with debilitating consequences. He was medically assessed by the Employee's Compensation (Ordinary Assessment) Board on 17 October 2000, 23 November 2000, 28 December 2000 and 18 January 2001, and a Certificate of Assessment was issue on 1 February 2001 certifying a 57 per cent loss of earning capacity which is the assessment now under appeal in these proceedings.

9. The merits of his application to extend time appear from his affirmation of 28 June 2001. In his case, he says that he was caught up in the Labour Department's processing of his case for compensation during which time he was paid periodical payments for 24 months following the accident. He says that he is a simple man with little formal education. He and his wife are both illiterate. They could not read letters sent to them, nor could they write any. He says that this to a large measure contributed to his failure to apply under section 18A in time.

10. Mr Lee for the respondents submits that ignorance of his rights by the applicant does not amount to a reasonable excuse (see Rolls & Pascal & Sons [1911] 1 KB 982 and Judd v Metropolitan Asylum Board [1912] 5 BWCC 420.

11. The high point of the respondent's case is that the applicant had been made aware of his rights to make a section 18A application to the court no later than 24 July 2000, that is to say six months before the expiry of the limitation period (see the Labour Department's letter to him dated 24 July 2000, part of Exhibit LMT4) and yet he chose to do nothing about that. In fact, he was told of the limitation period twice. On 10 October 2000, he wrote to the Labour Department explaining that he was aware of the limitation period but said that he preferred to pursue the matter administratively through the Labour Department, this notwithstanding a previous letter on 12 August 2000 to the effect that he wished to pursue the matter through the courts. It is clear, therefore, that he was well aware of the limitation period and made a conscious decision not to come to this court until it was in fact too late, albeit only 4 1/2 months out of time.

12. I am afraid that even making every allowance for the severity of the injury and its consequences, this is a case where the applicant appears to have taken a conscious, and in my view, fully informed decision not to come to court via section 18A, but then having been disappointed by the 57 per cent assessment which was made after the expiry of the limitation period, he decided to issue the section 18A proceedings together with the appeal under section 18.

13. Mr Clancey on his behalf has submitted that he was confused by the Labour Department who perhaps may have misled him but, in my judgment, a completely different picture emerges from the correspondence that he has exhibited to his affirmation, a part of which I have already referred to. In my view, he has not shown a reasonable excuse for not coming within the two year period.

14. I refuse him leave under section 14(4), leaving him to prosecute his claim by means of an appeal under section 18.

(Submissions on costs)

15. Costs to the respondent in any event and Legal Aid taxation of applicant's costs.

(Discussion re directions)

16. Leave for the respondent to file with court and serve on the applicant an answer within 21 days. The respondent do file with court and serve on the applicant for the purpose of section 11, a list of earnings of the applicant for the 12 months period prior to the accident or such lesser period of the employment with the respondent within 21 days.

17. Application adjourned sine die with liberty to restore.

18. Costs of call-over hearing be costs in the cause. Legal Aid taxation of applicant's own costs.