XCHRX Sit Hing Shing v. Wai Hang Cheong Petro-Chemicals Ltd.

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 882 OF 2000

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J U D G M E N T

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1. This matter, if I may say so, has been very well argued on both sides. I have before me a summons by the applicant for leave to appeal against a Certificate of Review of assessment dated 1 March and also a Certificate dated 6 March. The time limit which is provided for bringing such appeals is a period of six months, and so in this matter there has been delay of a further month. The delay itself is not, in my judgment, the most serious of its kind and that is obviously something that I am bound to take into account.

2. The history of the matter can be stated quite shortly. The applicant was seriously assaulted in the course of his employment with the respondent on 12 October 1998. He was issued with a Certificate of Assessment which provided for a 2 per cent assessment of loss of earning capacity on 3 November 1999. He lodged a Notice of Objection against that I think four days out of time but the matter was heard by the Board and they issued their certificate having reviewed the position on 1 March 2000 and the Certificate of Compensation Assessment was issued on 6 March 2000. Then on 12 September, the applicant was paid all that was owing to him under the certificates, as I say, on 12 September 2000.

3. He has now brought this appeal against the certificates. What he says is that he was not properly looked at by the doctors who examined him for a short period of time, he says only for about five minutes. That is what he says about it. At all events, he has gone to see his own doctor who has made an assessment of 5 per cent.

4. The jurisdiction to extend time is contained in section 18(2) of the Employees' Compensation Ordinance. In its material parts it provides that no appeal shall lie after the expiry of six months but the court may, if it thinks fit, extend the time within which to appeal under this section, notwithstanding that the time has lapsed.

5. The grounds in support of this application appear in the applicant's affirmation which was affirmed on 6 June and the main grounds of appeal start at paragraph 9. What had happened is that the respondents had terminated the applicant's employment with them. There was then a dispute as to how much he was owed by them. He then went to the Labour Department. They made an award that the respondents should pay $16,000 on or before 5 July. There was a dispute as to that. He then went to the Labour Tribunal and eventually he got a decision from that tribunal that was favourable to him and the amount that was owing was then paid.

6. He says that all of this rather deflected his attention from the matter which I am having to consider and that caused a delay. He went to solicitors in due course. His present solicitors were assigned by the Legal Aid Department. They brought the application for employees' compensation within the two year limitation period. They then lodged this appeal and this application has now come before me.

7. Mr Ng, who appears for the respondents, submits that where there is a six month period which the applicant should clearly have been aware of, the form states the position very clearly. He had already had one bite of the cherry and so he must have been conscious of time limits. The respondents have now paid everything that is due to him under the Certificate of Assessment of 6 March and what Mr Ng says is that in all the circumstances it would not now be right to let him have a second go. These certificates are meant to be binding. They are made out after disability is looked at by a properly qualified panel of experts, including medical experts, and the whole regime here is to try and achieve finality and to achieve it quickly in fairness to both the employee and the employer. There are time limits and these time limits should be adhered to and I should not now extend that period. There is really no justification for it.

8. I have come to the view that I should extend time. I think this individual has largely acted with expedition. He got distracted by his dispute with the same respondents who were not paying him what they should have paid him after they terminated his employment. That matter is not related to this application for compensation but it distracted his attention. They did not do what they should have done, he had to go to the Labour Tribunal. That was time-consuming in itself and when he went to the solicitors who were assigned by the Legal Aid Department, they proceeded to deal with this matter with expedition. The respondents have been aware that this appeal was very much on the stocks and where it is only one month out of time, I think this is a proper case to extend time, and I will.

9. So there will be an order in terms of the amended summons, subject to an argument as to costs.

(Discussion re costs)

10. I take the view that where one is asking for an indulgence and I think in a matter such as this the person who is late and therefore is having to seek an indulgence should pay. So although the applicant has succeeded, and I have given leave to appeal out of time, the applicant will have to pay the respondent's costs of this application in any event and there will be Legal Aid taxation of the applicant's costs.