LI ZHUOMAN v. EASY-ACCESS TRANSPORT SERVICES LTD

DCEC 2695/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2695 OF 2015

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D E C I S I O N

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A.　INTRODUCTION

1.  The present claim is brought under the Employees’ Compensation Ordinance (Cap. 282) for employees’ compensation. The statutory provisions referred to in this decision, unless otherwise stated, are the provisions of this Ordinance.  

2.  In respect of a claim brought by an injured employee under the Ordinance, the relevant medical assessment board (“MAB”) appointed by the Commissioner for Labour (“Commissioner”) shall assess the percentage of the loss of earning capacity permanently caused by the injury as well as the period of absence from duty. The decision of the assessment is contained in a certificate of assessment by way of Form 7. A review of Form 7 by the MAB shall be set out in a certificate of review of assessment by way of Form 9. Upon the issuing of a Form 9 certificate, the Form 7 certificate in respect of the same injury is cancelled.  Section 18(2) prescribes a time-limit of 6 months for the bringing of an appeal whether it is against a Form 7 or a Form 9 certificate.

3.  A Form 9 certificate (“Form 9”) in relation to the review of the assessment by MAB of the applicant’s personal injuries was issued by MAB on 23 June 2015. (Upon the Form 9 being issued, the Form 7 certificate of 17 March 2015 (“Form 7”) in relation to the assessment of the same injury was cancelled).

4.  When the applicant, who was then acting in person, instituted these proceedings on 18 December 2015 by the filing of a home-made application in Chinese (“Home-made Application”) in Form 1 (“Form 1”) prescribed in the Schedule specified in r.16 (1) (a) of the Employees’ Compensation (Rules of Court) Rules (Cap.282B) (“EC Rules”), she did not at the same time make an application to appeal against Form 9. The time for appeal against Form 9 lapsed on 24 December 2015.

5.  After the applicant was granted legal aid on 9 March 2016, her legally-aided solicitors made the instant application (“Leave Application”) on 19 August 2016 for leave to appeal out of time against Form 9.

6.  The Leave Application is supported by the applicant’s supporting affirmation as well as her affirmation in reply to the respondent’s affirmation in opposition.  At the hearing of the Leave Application, the applicant was granted leave to also file and rely on an affirmation of her solicitor, Mr Tong (who appeared at the hearing) on the assignment of legal aid.

7.  The respondent was represented by counsel Mr Gidwani (who appeared together with Mr Smith).

B.　THE APPLICANT’S CLAIM

8.  The accident (“subject accident”) that gave rise to the applicant’s personal injuries, according to para 1 of the Home-made Application, was stated to be have occurred on 24 November 2014.  In giving the particulars of the claim in para 3(3),  the applicant, instead of giving particulars for the subject accident, separately averred to three accidents from which she had allegedly suffered personal injuries in the course of employment – the subject accident, an accident on  26 November 2014 (“2^nd accident”) and another accident on 30 April 2015 (“3^rd accident”).

9.  The applicant was later granted leave to amend her Home-made Application, in which amended application in English (“Amended Application”), the applicant no longer averred to the 3^rd accident by deleting all references to it from para 3(3). She however maintained the particulars for the subject accident and the 2^nd accident in para 3(3) of the Amended Application.

C.　APPLICABLE LEGAL PRINCIPLES

10.  At the hearing, the parties were in agreement that the applicable principles governing the Leave Application are those stated in the Court of Appeal decision of Chung Sau Ling v Million Join Ltd [2003] 2 HKLRD H9, which overruled a decision of Deputy District Judge K. Lin in Yung King v Ka Ming Hop Yick Engineering Co and Ors [2002] HKDC 46 Mr Tong has sought to rely on in his written skeleton.

11.  Thus, the statement by the Deputy Judge in Yung King at [10] that s.18 (2) “gives the court an unfettered discretion to grant an extension of time to appeal” is no longer good law. The correct position is stated in the judgment of Cheung JA in Chung Sau Ling at [16] as follows:

“The proviso to section 18(2) enables the court “if it thinks fit” to extend the time of appeal. In order to enable the court to exercise its discretion it has to be provided with all relevant factors including the length of delay, the reason for the delay and the prejudice to the other party if the extension is granted and the merits of the application as well.”

12.  I should, like the Judge in Limbu Prem Parkash v Ng Yuk Man[1] did by following Chung Sau Ling, take into account all relevant factors that include:  (a) the length of delay; (b) the reason for the delay; (c) the prejudice to the other party if an extension is granted; and (d) the merits of the appeal.

13.  The Court of Appeal in Tsang Loi Fat v Sun Fook Kong, (C.A.)[2] provided further guidance by setting out a number of relevant factors at [11] when considering the question of whether good explanation for the delay has been given. 

(a) The applicant’s age, education level, intelligence and background;

(b) Ignorance of the law, generally speaking, is not a reasonable excuse for the delay;

(c) The applicant’s health condition, 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 of 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 of his employer, insurance company, or a third party.

14.  In opposing the Leave Application, the respondent contended that the intended appeal against Form 9 is devoid of merits and that the applicant has failed to provide good explanation for the delay.   It is further suggested that were leave granted, the respondent would suffer prejudice.

15.  With these principles in mind, I will next examine the respondent’s contentions and the parties’ arguments.

D.　WHETHER THE INTENDED APPEAL IS DEVOID OF MERITS?

16.  Based on the following undisputed facts, Mr Gidwani contended that since, the applicant in para 1 of the Amended Application has only pleaded one accident, viz the subject accident ,and that Form 9 is not concerned with the subject accident, the Leave Application is devoid of merits:-

(a) Form 9 is the review assessment by the MAB in respect of the applicant’s personal injuries which arose from the 2^nd accident (which is not concerned with the subject accident as pleaded in the Amended Application), and is not relevant to the present claim.

(b) The applicant had already paid full statutory ss.9 and 10 compensation the Commissioner, using the assessment in Form 9,  had assessed and calculated in Form 6 (“Form 6’) issued on 30 June 2015 pursuant to s.16A(5) as well as the full s.10A compensation. Therefore, any claim the applicant may have from the 2^nd accident is satisfied.

17.  It was Mr Gidwani’s contention that to be a valid claim, the applicant should be required to plead the 2^nd accident in para 1 of the Amended Application. Simply alluding to it in para 3(3) of the Amended Application is not validly pleaded the same and the applicant should not be allowed to make a claim in respect of the 2^nd accident.

18.  Although the applicant would be able to make an application for leave to further amend the Amended Application, she would have a big hurdle for the obtaining of leave, Mr Gidwani further added, as the 24 month’s time limit provided in s.14 for the bringing of a claim in respect of the 2^nd accident has already expired.

19.  On behalf of the applicant, Mr Tong disagreed with Mr Gidwani’s submission that the applicant has failed to plead the 2^nd accident.   It was stated that the 2^nd accident, notwithstanding it having only been averred to in para 3(3), instead of para 1 of the Amended Application, has been properly included and pleaded in the Amended Application.    He submitted that the applicant’s case is sufficiently stated in the Amended Application in which the applicant has pleaded that the personal injuries she had suffered from the 1^st accident were continuous injuries, which continued to the date of the 2^nd accident.  It is argued that by averring to the dates of both of the 1^st and the 2^nd accidents in para 3(3) of the Amended Application, the applicant’s claim for compensation for the 1^st and 2^nd accidents is validly pleaded in the Amended Application. Mr Tong therefore submitted that Form 9 is relevant to these proceedings.  Alternatively, Mr Tong suggested that should the applicant’s failure in stating the 2^nd accident in para 1 of the Amended Application be regarded as a pleading defect, it is open to the applicant to apply for leave to amend by amending para 1 of the Amended Application by inserting in para 1 the 2^nd accident in addition to the subject accident.

D.1　Discussion

20.  Since the arguments as to whether the applicant has properly pleaded the 2nd accident is central to the question of whether Form 9 is relevant to these proceedings, it is necessary to briefly examine the relevant rules and practice governing the commencement of employees’ compensation claims.

21.  The procedure for the commencement of proceedings for employees’ compensation, compared to that of other civil claims (which are governed by the Rules of the District Court (“RDC”)), is relatively simple.  An application by an employee for claiming compensation shall be commenced by filing a written application (for non-fatal cases) in Form 1  accompanied by “a concise statement of the circumstances in which the application is made and the relief or order which the applicant claims, or the question which he desires to have determined”: EC Rules r.16 (1) (a).

22.  Practice Direction 18.2, “The Employment Compensation List” (para.40) stipulates that an application in “Form 1” is regarded as a pleading.  In my view, this direction was issued for the purpose of regulating the procedure in relation to Form 1, which should be, except where there is conflict with the EC Rules, governed by, apart from the relevant ECR, the relevant aspect of the RDC.[3]

23.  The format of “Form 1” is simple. It only requires an applicant to state his claim by concise statements in three parts in paras 1, 2 and 3.

24.  Paragraph 1[4] is to state the date of the accident that gives rise to the claim for compensation. Paragraph 2 is to state the types of compensation being sought. Paragraph 3 is to state the particulars of the accident concerning ten various matters. Subparagraph 3 of para (3), the relevant sub-para concerning the present dispute on the sufficiency of a valid claim, requires an applicant to give particulars in relation to the “Date and place of the alleged accident, nature of work on which the applicant was then engaged and nature of accident and cause of injury”.

25.  As discussed above, the procedures governing employee compensation proceedings are simpler than those in civil proceedings. Nonetheless, in order to facilitate the administration of justice and to regulate consistency of practice, parties to the proceedings are, in my view, required to adhere to the appropriate rules, be they the EC Rules or the RDC.   As Form 1 has been expressly mandated by the Practice Direction to be a pleading, it should be bound by the usual pleadings rules, the prescribed format notwithstanding. An applicant, when claiming employees’ compensation, is therefore required to plead, like a claimant in a civil claim, his cause of action that gives rise to his claim for compensation. A cause of action in an employees’ compensation application, as will be discussed below, is an accident that has caused an employee’s injuries in the course of his employment.  

26.  Section 5, the primary operative provision for the statutory scheme for employees’ compensation, imposes liability on an employer to pay compensation to an employee who has suffered “personal injury by accident arising out of and in the course of employment”.  To prove “personal injury by accident” in employees’ compensation proceedings, an applicant would be required to prove “a separate event which caused the injury” (HKCP, Vol 2, para Q1/5/2, p.1436).  It is my view that each event happening in the employment that brought about injuries is an occurrence of the accident within the meaning of s.5, and it must be separately and succinctly pleaded and in the prescribed Form 1.

27.  As to how each “personal injury by accident” should be pleaded, according to the prescribed From 1, it shall be separately pleaded in para 1 by stating the dates of each and every accident in the employment that brought about injuries. Thus, if there is more than one accident which an applicant wishes to claim compensation in respect of, the dates of all these accidents should be clearly and separately be set out and pleaded in para.1 of Form 1. If this is not done, quite apart from the inherent undesirability of lacking conciseness, it fails to properly plead the parameters of the applicant’s case so as to sufficiently identify the causes of action, viz, each and every event that gives rise to the claim under s.5.  If an accident is only alluded to in para 3(3), but not para 1, of Form 1, it is insufficient to ground a cause of action for employees’ compensation for the reason that para 3 of the prescribed Form 1 is for the purpose of providing material facts in support of an applicant’s cause(s) of action in the claim/ application.

28.  Turning to the Amended Application, it is evident that the applicant has only pleaded the subject accident in para 1 of the Amended Application, and the 2^nd accident that allegedly also forms part of her claim is only alluded to in para 3(3) of the Amended Application. As she has failed to properly plead her other alleged cause of action, viz, the 2^nd accident in para 1 of the Amended Application, she would need to amend para 1 of the Amended Application to include the 2^nd accident otherwise she would not be able to argue that her claim also includes the 2^nd accident.   I am therefore in agreement with Mr Gidwani that the applicant has presently failed to properly plead the 2^nd accident in the Amended Application.  The cause of action of the applicant’s claim is only the subject accident.

29.  Insofar as Mr Tong’s continuation argument that the injuries the applicant had allegedly suffered from the subject accident had continued to the date of the 2^nd accident, I consider it to be fallacious. By having failed to separately plead the 2nd accident, the applicant, according to the discussion above, has failed to separately plead another alleged event that gave rise to the “personal injury by accident”.

30.  In any event, contrary to Mr Tong’s suggestion of a continuation of injuries, the applicant, in para 3(3) of the Amended Application, has instead given the description of the 2^nd accident as a separate event.  In that sub-para, after she had alleged that she suffered injuries in her arms and shoulders in the subject accident on 24 November 2014 when she held up an elderly person to prevent the latter from falling, the applicant went on to particularize the 2^nd accident in this way: “[O]n 26 November 2014, while the Applicant was in the course of employment with the Respondent, similar accident happened again on the same elderly, and the Applicant injured both her arms and shoulders again.” 

31.  As the applicant has referred to the 2^nd accident as a separate event, albeit having allegedly caused similar injuries as the subject accident, it is not open to the applicant to simply plead the subjectaccident in para 1 but yet be allowed to adduce evidence relating to the 2^nd accident on the ground of the latter being a continuation of the former, and claim compensation for the injuries that occurred on the date of the 2^nd accident.

32.  Thus, I am unable to accept Mr Tong’s argument that it was not necessary to plead the 2^nd accident in para 1 of the Amended Application before the applicant is allowed to claim also for compensation in relation to the 2^nd accident.

33.  Since I have rejected Mr Tong’s continuation argument, I should consider whether the applicant would likely obtain leave to amend so that the defect can be cured.  In my view, the applicant would have an uphill task in obtaining leave to amend by adding the new 2^nd accident to her claim out of time by being able to satisfy a court that she has “reasonable excuse” for the delay in making the application in respect of the 2^nd accident.

34.  As Mr Gidwani suggested, when the applicant’s solicitors were tasked with the amendment of the Home-made Application by overhauling her claim, it must have been the applicant’s deliberate decision to omit from the Amended Application all averments to the 3^rd accident, which the applicant in the Home-made Application had separately referred to alongside the subject and the 2nd accidents. A satisfactory explanation would be required of the applicant when applying for leave.

35.  For my part, I do not think it appropriate to put the cart before the horse in examining the applicant’s chance of obtaining leave to make further amendment.  Suffice it that I agree with Mr Gidwani that the applicant would have a high threshold to cross before she is able to cure the present pleading defect identified above. In conclusion, since I have held that the applicant has presently only pleaded one accident, viz, the subject accident in the Amended Application, which accident is not the accident Form 9 is concerned with, I agree with Mr Gidwani that it is unlikely that the applicant would be granted leave to further amend to add a new claim in respect of the 2^nd accident.

36.  The 2^nd accident, in any event, cannot be a valid claim, the respondent contended, as the applicant had been paid the statutory compensation in respect thereof. For this reason, Mr Gidwani submitted that the applicant’s claim for the 2^nd accident has been fully satisfied and now become functus. 

37.  In respect of the applicant’s injuries to both of her shoulders, the MAB reviewed the Form 7 assessment in Form 9, and assessed the applicant’s loss of earning capacity to be 3 percent; and the periods of absence from duty are: (i) 26 November 2014 to 15 December 2014; (ii) 2 May 2015 to 28 May 2015; (iii) 4 June 2015; and (iv) 6 June 2015.

38.  Based on Form 9, the Commissioner issued Form 6 in which the amount of the compensation in respect of the 2^nd accident under ss.9 (compensation in case of permanent partial incapacity) and 10 (compensation in case of temporary incapacity) payable by the respondent is respectively the sums of $19,383.75 and $11,725.97 (making a total amount of $31,109.72).

39.  It is not disputed that the respondent has paid to the applicant s.9 compensation in the total sum of $19,383.75. The first payment in the sum of $6,461.25 on 22 April 2015 (“first s.9 payment”) was based on the Form 7 assessment of 1 percent of the applicant’s loss of earnings obtained before the assessment was revised upwards to 3 percent upon review.  The second payment (“second s.9 payment”) in the sum of $12,922.50 was made on 13 July 2015 after the issue of Form 9.

40.  The respondent also paid to the applicant the full sum of $11,725.97 for s.10 compensation in accordance with the assessment set out in Form 6.  (The respondent had in fact paid a total sum of $11,899.95, which included one extra day of (unassessed) sick leave for 5 June 2015.[5]).

41.  In addition, the respondent also paid to the applicant s.10A compensation for medical expenses in the sum of $6,115.

42.  In the applicant’s 2^nd affirmation (at para 9) filed in reply to the respondent’s opposition affirmation, the applicant admitted all the payments but alleged that she had signed the receipts for both the first and the second s.9 compensation reluctantly.  It was alleged that when   the Deputy Manager of the Human Resources Department of the respondent, Miss Mok, asked her to acknowledge the receipt of the first s.9 compensation, she was angry when the applicant suggested that she needed to go home to think about the matter.  When the applicant later asked to sign the receipt for the second s.9 compensation, the assistant to Miss Mok had not explained to her the consequences of the signing of the receipts.

43.  For the applicant’s 2^nd accident, there is no dispute that the applicant had been fully paid her statutory compensation under ss.9 and 10 which the Commissioner assessed and calculated in the Form 6 certificate as well as compensation under s.10A.  Under the statutory framework of the Ordinance, the s.16(5) certificate in Form 6, pursuant to s.16A(7), constitutes conclusive evidence as to quantum in the absence of any application under s.16B for the cancellation of the s.16(5) certificate, or an appeal under s.18.

44.  Since neither the applicant nor the respondent has invoked any of the statutory  cancellation or appeal procedures within the time-limit of six months from the date of issue of Form 6 (on 30 June 2015), it is therefore not open to the applicant to reopen the question of compensation concerning her injuries of the 2^nd accident.

45.  Since the question of compensation in relation to the 2^nd accident has been properly disposed of by the respondent’s payment in accordance with the Form 6 certificate, the applicant’s intended appeal against Form 9 (which concerns the 2^nd accident) is, in my view, wholly frivolous and hopelessly devoid of merits.

46.  In light of my conclusion on merits, it is strictly unnecessary to discuss the other two arguments regarding reason for the delay and prejudice Mr Ho and Mr Gidwani put forward. For the sake of completeness, I, however, briefly discuss them below.

E.　REASON FOR THE DELAY 　

47.  It cannot be disputed that by the time the Leave Application was issued on 19 August 2016, it was already 8 months after the time-limit to appeal against Form 9 had expired.

48.  The applicant gave two reasons for the delay. The first reason is that the applicant was only legally represented (on 9 March 2016) after the time limit for the appeal against the Form 9 assessment had lapsed. The second reason is that the applicant discovered that her injuries were more serious after the issuance of Form 9.

49.  As for the first explanation for the delay, I am not satisfied that the applicant has provided a good reason for the delay.  As the Court of Appeal has stated in Tsang Loi Fat at [11], ignorance of the law is generally not a reasonable excuse for delay. In my view, the fact that the applicant was able to make objection to the Form 7 assessment of her injuries sustained in the 2^nd accident within 6 months whilst she was unrepresented seems to show that the applicant was aware of the time limit of 6 months for the bringing of an appeal. Pertinently, as Mr Gidwani has highlighted, the bottom part of Form 9 (similar to Form 7), contains an important notice that the time limit for an appeal to the District Court, under s.18 (1) and (2), is 6 months from the date of the issuance of Form 9.

50.  Despite having allegedly accepted the first s.9 compensation reluctantly as stated in her affirmation in reply (see para 42 above), the applicant was able to exercise her legal rights to lodge an objection to Form 7 within time leading to the review conducted by the MAB, which subsequently issued Form 9. An explanation should have been given as to why she was aware of the 6 months’ time limit (that was contained at the bottom part of Form 7)  to review the Form 7 assessment, but not had been able to appeal within the same time limit for Form 9, which time limit has also been similarly stated in Form 9.

51.  In the circumstances, the lack of legal representation, in my view, is not a good excuse for the applicant’s delay.

52.  Insofar as the applicant’s alleged deterioration of her medical condition is concerned, it is important to consider how the applicant set out her claim in the Home-made Application. In it, the applicant has, as stated in para 8 above, particularized three distinct averments of three accidents, the subject accident, and the 2^nd and 3^rd accidents.  The 3^rd accident was particularized to state that: on that day she sustained injuries to both of her shoulders at work leading to accumulation of fluids inside the right shoulder joint (「左右肩拉傷、右肩關節內有積液」).

53.  In spite of such specified particularization of the 3^rd accident in the Home-made Application, the applicant not only deleted any reference to it in the Amended Application, but also denied in her 2^nd affirmation in reply (at para 10) the happening of  the 3^rd accident.  The applicant tried to give a reason for her injuries that had allegedly occurred on the date of the 3^rd accident as “old injuries (舊患) incurred from injuries on 24^th and 26^th November 2014 [respectively the dates of the subject and 2^nd accidents]”.

54.  In my view whatever label the applicant used to describe the event on 30 April 2015 is not important, be it an accident (as she had earlier averred in the Hone-made Application) or old injuries (as alleged in her affirmation).  What matters is whether the applicant’s explanation for the delay due to the alleged deterioration of her injuries after the issuance of Form 9 is reasonable.

55.  After having considered the medical evidence the applicant placed before the court, I am not satisfied that the applicant’s explanation of the alleged deterioration of her medical condition arising from the subject accident has been supported.

56.  The applicant, despite having been granted leave to file additional evidence in the form of the affirmation of Mr Tong (the applicant’s solicitor) so that the applicant was able to produce a number of her sick leave certificates for the period between 26 November 2014 to 23 December 2016 (the period after the date of the 3^rd accident), has been unable to show that such evidence relates to any of the previous accidents. 

57.  Most pertinent is the information contained in the medical report of Shun Lee General Outpatient Clinic dated 23 January 2016 exhibited to the applicant’s supporting affirmation[6] which tends to undermine the applicant’s assertion as to how she sustained the shoulder injuries after the 2^nd accident on 26 November 2014. In the report, it was disclosed that the applicant on 18 May 2015 reported “another incident of injury on duty having happened on 29/4/15 [one date [sic] before the 3^rd alleged accident], with right shoulder sprained (sic.) while lifting patient”.

58.  In the absence of any medical evidence, I am not satisfied that the applicant has provided reasonable explanation for her delay.

F.　PREJUDICE TO THE RESPONDENT

59.  The applicant states in her supporting affirmation (at para 8) that since the respondent had not filed any answer to these proceedings, no prejudice would be caused to the respondent by the court’s granting of leave to appeal against the Form 9 certificate.

60.  Whether the respondent has filed an answer or not is wholly irrelevant to the question of whether the applicant should be granted leave to appeal.  In his objection, Mr Gidwani used the words “stale claims” in describing how the respondent would suffer prejudice were the applicant allowed to succeed in the Leave Application. One of the “stale claims” is in relation to the subject accident, the subject matter of these proceedings. It is submitted that were leave to appeal is granted, the applicant would effectively be permitted to introduce into these proceedings medical evidence of the 2^nd accident when there is presently nothing showing that the applicant has any medical evidence concerning the subject accident. The other “stale claims” Mr Gidwani referred to is the 2^nd accident, in respect of which the respondent had already made full statutory compensation to the applicant. 

61.  As already discussed, Form 9 is clearly irrelevant to these proceedings. It would be highly unfair to allow the applicant to introduce into these proceedings medical evidence concerning the injuries of the 2^nd accident.

62.  Conversely, the refusal of the Leave Application would not deprive the applicant of her remedy for the injuries that she allegedly suffered after the Form 9 certificate was issued.  Since those injuries (and for which the sick leave certificates had been issued, see para 56 above) the applicant allegedly suffered were from the 3^rd accident, the applicant, as counsel suggested, is still within the 24 months’ time limit to institute a fresh application for compensation in relation to these injuries. 

63.  The long and short is this, the refusal of the Leave Application would cause prejudice to the respondent but no prejudice to the applicant.

G.　CONCLUSION

64.  In conclusion, for the foregoing reasons, I’m not inclined to accede to the Leave Application by granting the applicant   leave to appeal against the Form 9 assessment out of time.  The application is therefore dismissed with costs, on a nisi basis, to the respondent together with certificate for one counsel, to be taxed if not agreed. The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

65.  I further direct the parties to file within 42 days of the handing down of this decision a joint written application by setting out proposed case management directions in accordance with Practice Direction 18.2.