LO WAI LIN v. FWD LIFE INSURANCE CO (BERMUDA) LTD

HCSA 12/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 12 OF 2016

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 472 OF 2015)

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D E C I S I O N

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Introduction

1.  The dispute between the parties is over a claim for reimbursement under a medical insurance policy.  In the present application, the claimant Madam Lo Wai Lin applies for leave to appeal against an award made on 22 January 2016 after a hearing for review by Mr Chan KS Vod, the Learned Adjudicator of the Small Claims Tribunal (“Adjudicator”).

2.  Earlier, the defendant had also applied for leave to appeal under HCSA 6 of 2016 and this court had granted leave to the defendant under a decision handed down on 15 April 2016 (“15.04.16 Decision”).

3.  The facts and background to the dispute had been set out therein and I will not repeat in this decision.  For ease of reference, in the present decision, I will adopt the same definitions in the 15.04.16 Decision, unless otherwise indicated.

4.  As mentioned in the 15.04.16 Decision, under the 1^st Award, the Adjudicator awarded to the claimant HK$31,991, and at the Review, the defendant had produced further evidence to indicate that an amount of HK$27 under “Hospital Services” was for courier charges for an X ray report requested by a Dr Ho to be sent by the hospital to his clinic, and should not form part of the reimbursements under the Policy.  The Adjudicator accepted this and revised the 1^st Award to deduct this amount, and thus the 2^nd Award was for HK$31,964.

5.  The claimant now applies for leave to appeal against the 2^nd Award.

Grounds of the intended appeal

6.  The claimant’s application for leave to appeal was issued on 18 February 2016.  As stated therein, there were 4 grounds of his intended appeal (“Grounds”), which, in brief, were as follows:

(i)     The Adjudicator misconstrued clause 4.2.7 of the Policy in failing to find that as long as the claimant had met the two conditions therein, the defendant had to reimburse HK$27 to the claimant;

(ii)    The Adjudicator erred in law in allowing the defendant to file the application for the Review on 1 December 2015, which was out of time;

(iii)   The Adjudicator erred in law in allowing the defendant to adduce fresh evidence, namely the document relating to the courier charge of HK$27;

(iv)   The Adjudicator failed to consider that the defendant had no intention to pay any amount or any part thereof of any non-disputed amount, and that the defendant adopted a manner of none of any partial reimbursement even long after the commencement of proceedings, and misapplied a punitive principle to award no cost to the claimant.

Relevant Statutory Provisions

7.  Section 27A of the Small Claims Tribunal Ordinance, Cap 338 (“Ordinance”), sets out as follows:

“(1) Except where a party has filed an application for leave to appeal and does not agree to withdraw the application, an adjudicator may, within 14 days from the date of an award or order given or made by him, review the award or order and on such review may re-open and re-hear the claim wholly or in part and may call or hear fresh evidence and may confirm, vary or reverse his previous award or order.

(2) The power conferred by subsection (1) may be exercised-

(a) by an adjudicator of his own motion, by notice in the prescribed form to all parties;

(b) on the application of a party within 7 days, by notice in the prescribed form to all other parties.

(3) The exercise of the power conferred by subsection (1) shall not operate as a bar to an appeal by a party against the award or order or against the determination of the review.

(4) On the application of a party for a review under this section, the adjudicator, having regard to the possibility of assets which may be available to satisfy an award being disposed of to the prejudice of any party, may make such order regarding payment into the tribunal, giving of security or otherwise as he may think fit.

(5) An adjudicator may transfer the hearing and consideration of a review to another adjudicator who shall have all the powers and functions he would have if he had originally heard the claim and had prepared the record of proceedings.”

8.  Section 28 of the Ordinance then sets out as follows:

“(1) Any party who is aggrieved by a decision of the tribunal-

(a) on any ground involving a question of law alone; or

(b) on the ground that the claim was outside the jurisdiction of the tribunal,

may apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave if it thinks fit.

(2) An application for leave to appeal under this section shall be-

(a) in the prescribed form, specifying the ground of the appeal and the reasons in support of such ground; and

(b) lodged with the Registrar of the High Court within-

(i) 7 days after the date on which the written award or order is served on the aggrieved party; or

(ii) if within that period the aggrieved party applies to the tribunal for the reasons for the award or order, 7 days after the date on which the reasons are served on him; or

(iii) such time as may be extended by the Registrar of the High Court on good cause.

(3) A refusal by the Court of First Instance to grant leave to appeal shall be final.

(4) Nothing in this section shall affect any right of appeal under section 50 of the High Court Ordinance (Cap 4).”

Grounds (i) and (iii)

9.  Clause 4.2.7 of the Policy is headed “Miscellaneous Hospital Charges Benefit”, and states that:

“The Company will pay the charges incurred for miscellaneous hospital services on the written recommendation of the attending Physician and only when the Insured is under Confinement. Miscellaneous hospital charges are covered for services such as X-rays, laboratory tests, (medical appliances such as pacemaker, stent, but excluding surgical equipment), physiotherapy, prescribed medicines and injections, drugs, blood plasma and dressings. The Company shall have the sole right to determine what services or charges would qualify for payment under miscellaneous hospital charges.

The maximum miscellaneous hospital charges benefit payable per Disability is set out in the Policy Schedule.”

(emphasis added)

10.  The amount of HK$27 was a courier charge incurred by the Hospital in sending a report to a Dr Ho as requested by Dr Ho.  The item of HK$27 was stated to be “Hospital Services” on the Hospital’s Discharge Statement of 9 December 2014.  There was subsequently a breakdown report for this item dated 23 October 2015 (“Breakdown Report”). I understand that this was the document which the defendant produced during the Review.

11.  In paragraph 35 of the Detailed Reasons, the Adjudicator had pointed out that the defendant had admitted its inadvertence in failing to provide more detailed information about the amount of HK$27 until it submitted its reasons for the Review.  Thus, the Adjudicator was clearly aware that the defendant had all along had the Breakdown Report since 23 October 2015, and it was not “new” evidence, as it was available prior to the 1^st Award.

12.  Under s 27A of the Ordinance, the Adjudicator has wide powers and discretion during the Review, namely the power to re-open and re-hear the claim wholly or in part and may call or hear fresh evidence and may confirm, vary or reverse his previous award or order.  The claimant stated that the defendant had already had knowledge and possession of the Breakdown Report since 23 October 2014, whereas the claimant never had any knowledge until at the Review, and that the Adjudicator had erred in law to allow the defendant to adduce that evidence.  In light of the specific statutory provision in the Ordinance, I see no error in law on the part of the Adjudicator in admitting the Breakdown Report nor was he plainly wrong in exercising his discretion to admit the Breakdown Report during the Review.

13.  In fact, both parties agreed at the Review that the amount of HK$27 was for courier charges as Dr Ho requested the Hospital to deliver an X-ray to his clinic.  The Adjudicator then concluded that the amount of HK$27 was not a hospital charge under clause 4.2.7 of the Policy.  His reasons were set out in paragraphs 36 – 38 of the Detailed Reasons.  Having considered clause 4.2.7, I agree with the Adjudicator’s interpretation and his reasons.

14.  In the above circumstances, I do not see any error in law on the part of the Adjudicator in relation to (i) and (iii) of the Grounds.

Ground (iv)

15.  The Adjudicator made no order as to costs for the Review. Costs are in the unfettered discretion of the Adjudicator.  There were two issues before the Adjudicator at the Review.  Although the defendant did not succeed on the issue on the production of the Original Documents, the defendant did succeed partially in that the amount of HK$27 had been deducted from the 1^st Award.  I cannot see that the Adjudicator was plainly wrong in exercising his discretion in ordering no order as to costs.  There was no question of law, and I see no reason to grant leave on this Ground.

Ground (ii)

16.  As for whether the defendant’s application for the Review (Form 8C) was filed out of time, according to the claimant, he did raise this issue with the Adjudicator, but the Adjudicator had failed to consider this.

17.  Although the hand written date on the defendant’s Form 8C was 30 November 2015, there was a date chop of 1 December 2015.  It was thus not actually clear whether the defendant filed Form 8C on 30 November or 1 December 2015.  However, I note that in paragraph 31, the Adjudicator had stated that the defendant applied for Review on 1 December 2015.

18.  Under s 27A (2)(b) of the Ordinance, the application should be made within 7 days.  I note on Form 8C there is a “note” which states that an application for a review of an award or order must be made within 7 days after the date of the award or order.  The date of the 1^st Award was 23 November 2015, and that 7 days after 23 November 2015 would mean the deadline was 30 November 2015.

19.  However, I note that although the 1^st Award was dated 23 November 2015, the covering letter from the Registrar of the Small Claims Tribunal sending a copy of the 1^st Award to the defendant was dated 24 November 2015.  The Registry of the Small Claims Tribunal accepted the defendant’s Form 8C for filing on 1 December 2015 and on the same day issued a Notice of Review (Form 8C). 

20.  As seen in paragraph 31 of the Detailed Reasons, the Adjudicator was clearly aware that the defendant applied for review on 1 December 2015.  Although the claimant had raised the out of time issue under her 1^st ground for opposition for the review, filed on 10 December 2015, there was no reference to this issue in the Detailed Reasons.

21.  As the transcript of the hearing for the Review was not placed before this court by the claimant, it is not clear that this issue was in fact pursued by the claimant at the Review.  

22.  If the application for review was indeed filed out of time, albeit one day, there may be a point of law as to whether the Adjudicator had any discretion to extend time under the Ordinance. 

23.  Further, as I have granted the defendant leave to appeal, the out of time issue may have to be considered in any event.

24.  In light of the above, I am prepared to grant leave to the claimant to appeal, but only on the out of time issue, namely the 2^nd Ground set out by the claimant in her application for leave to appeal.

25.  The claimant’s appeal should be fixed at the same hearing fixed for the defendant’s appeal.