CHU SUK HAN v. SZETO WAI YIU AND ANOTHER

DCEC 402/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 402 OF 2002

-------------------

-------------------

---------------------------------------

JUDGMENT

---------------------------------------

1. This is an application by the Applicant pursuant to Section 14(4) of the Employees' Compensation Ordinance, Cap. 282 ("the Ordinance") asking the Court to hear and determine her application for compensation for the alleged injuries sustained by her in an accident at work on 10th April 2000 ("the 1st Accident"), notwithstanding the expiry of the 24-month limitation period provided for under Section 14(1) of the Ordinance. The Applicant allegedly sustained further injuries in another accident on 3rd August 2001 ("the 2nd Accident") which does not form part of the subject matter of this application.

2. The Employees' Compensation Application in respect of both the 1st and 2nd Accidents was filed on 10th May 2002. The Applicant is therefore one month late in bringing her claim in respect of the 1st Accident to the Court for determination.

3. Although the application is only one month out of time, the Respondent has strongly resisted the application. Before I turn to the facts of this case, it is helpful to set out the relevant principles which a court must apply in deciding applications of this nature. A much cited case in applications of this type is Wong Man Tak v. Shaws & Sons Ltd. [1957] DCLR 85, a decision of H.H. Judge Charles in this Court, where at pp. 88-89 of the report he considered the way in which the expression "reasonable excuse" was to be interpreted:

"A reasonable excuse, in the ordinary sense of the phrase, means, in relation to a failure by an applicant to make his application for compensation within the prescribed period, that the failure was due to such cause or causes that it ought, as a matter of reason, to be excused. The phrase thus means the same as the phrase "reasonable cause" which occurred in section 14 of the Workmen's Compensation Act 1925 of the United Kingdom. The numerous authorities upon that phrase show that a cause for failure to make a claim within the prescribed period was reasonable, and therefore excused the failure, if it were: - a reasonable belief on the part of the applicant that his injury was trivial; or a mistaken diagnosis of his injury; or a belief in the applicant that a claim for compensation was unnecessary, when the belief had been induced by the employer in such circumstances as reasonably warranted it; or the inability of the applicant to transact business because of his injury. On the other hand, a cause was not reasonable if it were a belief by the applicant that it would be to his interest to defer or not to make a claim. (See Willis's Workmen's Compensation, 36th Ed., p. 436 et seq.). Moreover, an applicant was not excused if he had a reasonable cause which operated only for part of the period: he had to have reasonable causes for the whole period. Thus, while an applicant might delay making his claim until the last moment of the prescribed period, he was not entitled to be excused if his last moment claim was prevented by a reasonable cause unless he could show that he had good reason for not making his claim before that cause arose. (Aldridge v. Warwickshire Coal Co.; Ashton v. London North Eastern Railway). The principle to be deduced from the foregoing is, I think, that an applicant has a reasonable excuse for not making an application to the court for compensation within the prescribed time if his failure were due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part."

4. Mr. Tse, acting for the Applicant in this application, submitted that the test laid down by H.H. Judge Charles is too restrictive. Relying on the case of Yeung Ying v. Ching Hing Construction Co. Ltd. [1960] DCLR 129, Mr. Tse submitted that the words "reasonable excuse" in Section 14(4) of the Ordinance are wider and should be construed more liberally than the words "reasonable cause" contained in Section 14(1)(b) of the Ordinance. In my judgment, whatever label one attaches to it, the test is the same. In an application under Section 14(4) of the Ordinance, the Applicant bears the burden of proving that the failure to make the application for compensation within the prescribed period was due to such cause or causes that it ought as a matter of reason to be excused.

5. I turn now to deal with the background and the facts of this case.

6. The Applicant was 36 years of age at the time of the 1st Accident. She came to live in Hong Kong in 1982 after having received up to secondary Form 3 education in the PRC. She began working for the Respondent in August 1995. At the time of the 1st Accident, the Applicant was employed by the Respondent as a sales lady and a sample worker at the Respondent's workshop in the Hong Kong Industrial Centre, Nos. 489-491 Castle Peak Road, Kowloon ("the Workshop"). The Applicant alleges that on 10th April 2000 at about 5:45 p.m., whilst she was on her way to the toilet situated at the Ground Floor of the Workshop, she slipped at the corridor, lost her balance and fell to the ground. As a result, her right knee was injured.

7. As a result of the 1st Accident, the Applicant was on sick leave from 11th April 2000 to 18th June 2000, and from 22nd June 2000 to 31st July 2001. During the period when the Applicant was on sick leave, the Respondent has paid to the Applicant monthly periodical payments equivalent to 4/5 of the Applicant's monthly salary. The Respondent has also paid for the medical expenses incurred by the Applicant in respect of the 1st Accident. These payments amount to a total of approximately $130,000.

8. The Applicant resumed working on 1st August 2001. On 3rd August 2001, the Applicant met the 2nd Accident. According to her Application, at about 11:30 a.m. on 3rd August 2001, the Applicant was working inside the conference room of the office of the Respondent when she kicked the leg of a floor standing metal hanger, thereby sustaining injury to her right lower shin and twisting her right knee.

9. In respect of the 2nd Accident, the Applicant was granted sick leave during the following periods: -

(i) from 3rd August 2001 to 31st October 2001;

(ii) on 20th November 2001;

(iii) from 19th January 2002 to 22nd January 2002;

(iv) from 27th February 2002 to 2nd March 2002;

(v) from 8th March 2002 to 15th March 2002;

(vi) from 18th March 2002 to 22nd March 2002;

(vii) from 28th March 2002 to 6th April 2002;

(viii) from 10th April 2002 to 13th April 2002;

(ix) from 17th April 2002 to 20th April 2002; and

(x) from 25th April 2002 to 30th April 2002.

10. The Applicant's claim for compensation in respect of the 1st Accident has all along been handled by the Labour Department. What is most significant to the present application is that on 15th October 2001 (roughly 6 months before the expiry of the 24-month time limit), the Applicant signed a "Notice of Intention not to apply to the Court for employees' compensation" addressed to the Labour Department ("the Notice"). The Notice is in Chinese. It can be found at page 16 of Exhibit "CSH-1" to the affirmation of the Applicant made on 10th May 2002.

11. In the Notice, the Applicant clearly acknowledged her understanding of Section 14(1) of the Ordinance, after having been explained by the staff of the Labour Department. This is not a case where the Applicant was ignorant of the relevant time limit. Furthermore, in the Notice, the Applicant expressly informed the Labour Department that she would like the department to continue to process her employees' compensation case and did not wish to lodge a claim at the Court.

12. In my judgment, this is a clear case where the Applicant had made a conscious and fully informed decision not to come to the Court via Section 18A of the Ordinance, but then later changed her mind after the expiry of the 24-month limitation period. In these circumstances, I am not satisfied that the Applicant has shown a "reasonable excuse" for her delay, see: Leung Ming-tim v. Fan Tai-kan t/a Kan Kee Company, DCEC 318/2001 (Judgment of H.H. Judge Carlson dated 3.08.01) and Ng Kin-lam v. Hong Kong Aircraft Engineering Co. Ltd., DCEC 717/2000 (Judgment of H.H. Judge Carlson dated 22.10.01).

13. Mr. Tse submitted that the Applicant's earlier decision not to apply to the Court for compensation was induced by the repeated representations of the Respondent that she would be paid the due amount of compensation in accordance with the law. The Applicant believed that an application to the Court was unnecessary.

14. I do not accept Mr. Tse's argument. In the final paragraph of the Notice, the Applicant has clearly been warned that if the employer eventually refuses to pay the relevant compensation, and if the Court refuses to entertain an out of time application, the Applicant would lose her right to make a claim.

15. Mr. Tse also submitted that the Applicant was "unable to transact business" because of the injuries suffered by her as a result of the 1st Accident and the 2nd Accident. In particularly, Mr. Tse relied on the fact that the Applicant had been granted sick leave certificates up to a point beyond the expiry of the 24-month time limit (i.e. up to 30th April 2002).

16. The Applicant is relatively speaking a young woman. In my view, although her injuries may justify her remaining away from work, I do not accept them to be so debilitating that they impair her mental faculties or her ability to commence legal proceedings during the two-year period.

17. For the reasons set out above, the Applicant's application by her Summons filed on 10th May 2002 is dismissed.

18. I see no reason why the application should not be dismissed with costs. Accordingly, there be an order nisi that the costs of and occasioned by the said Summons including the costs of the hearing before H. H. Judge H. C. Wong on 12th June 2002 be paid by the Applicant to the Respondent in any event, to be taxed if not agreed.