TIEMPO VICTORIA DAGOC v. LAI YEE CHEONG TRUDO

DCEC1102/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1102 OF 2008

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BETWEEN

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D E C I S I O N

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1.  The Applicant was a domestic helper working for the Respondent. Her term of employment expired on 17 March 2009 and was not renewed by the Respondent.

2.  This Application arises out of an accident on or about 24 January 2005 when the Applicant, in the course of preparing meal for the Respondent's family, accidentally cut the right index finger with a knife. According to the Respondent, the wound of the Applicant’s right index finger was not serious and had fully healed after the accident.

3.  On 10 June 2008, the Applicant attended the Kwong Wah Hospital for treatment. Upon medical examination, the Applicant was found to have suffered from malignant melanoma in the right index finger which was some kind of skin cancer. As a result, her right index finger was amputated on 16 July 2008. According to the medical report of the Kwong Wah hospital dated 15 November 2008 and 27 February 2009, the cause of the Applicant’s malignant melanoma was not ‘injury-related’. The skin cancer developed by reason of ‘Mother Nature’ and it was not related to any trauma. Further, according to the record made by the treating doctor, the knife wound in 2005 had fully healed and there was no evidence to support that the Applicant’s malignant melanoma was caused by the alleged accident in 2005.

4.  The Applicant commenced the present Application for employees’ compensation on 10 September 2008. As the 2 years’ limitation period had expired much earlier on 24 January 2007, the Applicant applied for leave to commence the Application out of time under section 14(4) of the Employees’ Compensation Ordinance, Cap. 282 (“the ECO”). On the other hand, the Respondent took out a summons to strike out the Application on the ground that it discloses no reasonable cause of action or is frivolous or vexatious or is otherwise an abuse of the process of the Court. These are the applications I have to deal with today.

Merits of the Application

5.  In respect of the present claim, the Applicant attended an examination by the Employees' Compensation (Ordinary Assessment) Board (“the Board”) on 4 February 2009 pursuant to section 16D of the ECO. According to the Certificate of Assessment (Form 7) issued on 18 February 2009, the Board considered that the Applicant’s medical condition of the right index finger amputation was unlikely due to an injury on duty, and so the Board made no assessment of loss of earning capacity and did not certify any sick leave period.

6.  The Applicant did not apply to review the assessment under section 16G of the ECO. Neither did the Applicant launch an appeal against the assessment to the court under section 18 of the ECO. According to the well established principle as laid down in the case of Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413, where a party has chosen not to appeal against the assessment within the 6 months’ limitation period or to apply for leave to appeal out of time against the assessment, the certificate of assessment would be binding on the court in respect of the assessment of the quantum of the employee's claim. As the Board made a determination that the amputation of the Applicant’s right index finger was not related to the alleged accident in 2005 and such finding is binding on the court, the Applicant’s application for employees’ compensation is bound to fail in the present case.

7.  Even assuming that the Applicant launches an application to appeal against the assessment made by the Board out of time, it still cannot assist the Applicant’s claim. The Applicant had previously applied for legal aid but was not successful. By reason of her limited means, she is not in a position to obtain medical expert evidence to challenge the findings made by the treating doctor in the Kwong Wah Hospital and the Board that the amputation of the finger was not caused by the alleged accident in 2005. In the absence of such medical evidence, the Applicant’s claim cannot possibly succeed. Hence, I allow the Respondent’s application and strike out the Applicant’s Application.

Leave to commence the Application out of time

8.  In view of my aforesaid ruling, it is not necessary for me to consider the Applicant’s application to commence the claim out of time. However, as the parties have dealt with such issue extensively in the affidavits, I feel obliged to give my ruling on such matter as well.

9.  Under section 14(1) of the ECO, an employee must launch his or her application for employees’ compensation within 24 months from the occurrence of the accident causing the injury. However, the court has the power to determine the application out of time if it is satisfied that there was reasonable excuse for the failure to make the application within the said time limit. The burden is on the applicant to show that there was a reasonable excuse.

10.  According to the affidavit filed by the Applicant, she did not launch the Application within the time limit because of the following reasons. Firstly, she did not appreciate the seriousness of her injury until the treating doctor had informed her that her finger had to be amputated in June 2008. Secondly, the Applicant had been seeking medical treatment for her right index finger regularly after the alleged accident in January 2005. She truly believed that the Respondent was the person responsible to pay employees' compensation to her. Further on 19 July 2008, the Respondent informed the Applicant that she took upon herself to claim employees’ compensation on behalf of the Applicant. She asked the Applicant to sign some forms and documents, and so the Applicant truly believed that the Respondent was responsible for all her claims related to the accident.

11.  In Buttersworth’s Hong Kong Personal Injury Service, at paragraph IV [1002] and Hong Kong Employees’ Compensation Handbook, 3 ed., at paragraph 1409, the learned authors give a list of principles relevant in considering whether an applicant has a reasonable excuse. Ignorance of the employee of the law or of the right to claim compensation is generally not sufficient. However, ignorance by an employee as to the true nature and extent of his or her injury may suffice. Further, a belief by the employee that the claim for compensation was unnecessary when that belief had been induced by the employer may also amount to a reasonable excuse.

12.  As to the allegation that the delay was caused by her employer and that she had all along believed that the Respondent was the person to pay compensation, I do not find them to be reasonable excuses. It is clear from the Applicant’s evidence that, at least before the expiry of the limitation period in January 2007, the Respondent had done nothing to mislead the Applicant to believe that the claim for employees’ compensation was unnecessary. According to the Applicant, the Respondent only informed the Applicant that she took upon herself to claim for employees’ compensation on behalf of the Applicant on 19 July 2008. By that time, the 2 years’ limitation period had long expired and there was no reason why the Applicant had not commenced the Application within the 2 years’ limitation period.

13.  As to the allegation that she did not appreciate the extent of her injury, I also have reservation about the genuineness of such complaint. According to the Applicant, her right index finger had not fully healed and she continued to receive treatment to her finger in the period from 2005 to 2008. That was why, according to her subjective understanding, the amputation must have been caused by the accident in 2005. If that was the truth, even without knowledge of the subsequent amputation of the right index finger, the Applicant should have known that her injury was quite serious even before the expiry of the limitation period. The wound did not heal after a long period of time, and yet the Applicant had not made a claim for employees’ compensation before the expiry of the limitation period. Hence, the Applicant’s case contains some serious contradictions which cannot be fully explained.

14.  Based on the aforesaid, I do not find that the Applicant did have a reasonable excuse for not bringing the claim for employees' compensation before the expiry of the 2 years’ limitation period. Further, the delay was long and substantial (about 18 months after the expiry of the limitation period), and so I see no reason to extend the time to entertain her application for employees’ compensation.

15.  I do have some sympathy with the Applicant as she lost one of her fingers. However, as the amputation was caused by some kind of skin cancer unrelated to the alleged accident in January 2005, her claim for employees' compensation cannot possibly succeed. Hence, I strike out the Applicant’s claim for employees’ compensation and refuse her application to commence the claim out of time.