LAU CHI CHAI v. NG FUNG SLAUGHTERHOUSE (HONG KONG) CO LTD

DCEC 1705/2006

 IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1705 OF 2006

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DECISION

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 Background

1. In these proceedings, the Applicant claims employees’ compensation against the Respondent in respect of an accident which happened on 30January 2005 (“the accident”).  For the purpose of assessing the Applicant’s loss of earning capacity, a Certificate of Review of Assessment (“the Certificate”) was issued by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) on 20 September 2007.

2. The question at present is whether the Respondent should be given leave to challenge the Certificate out of time.

3. By Summons filed on 4 June 2008 (“the Summons”), the Respondent initially applied for leave to appeal against or to cancel the Certificate out of time pursuant to s. 18(2) or s. 16B of Employees Compensation Ordinance (Cap. 282) (“ECO”).  In the hearing on 29 July 2008, Mr Kwok, solicitor acting for the Respondent, confirmed that he would only rely on s.18(2).

4. In this application, the Respondent has also sought leave to file a Re-Amended Answer and a medical report dated 4 March 2008 prepared by Dr Chun Siu-yeung (“Dr Chun”), a specialist in orthopaedics and traumatology engaged by the Respondent.

The relevant principles

5. Section 18(1) of ECO provides that the time limit for an appeal against the Certificate is 6 months.  The proviso to s.18(2) enables the court to extend such time limit “if it thinks fit”.

6. In exercising the discretion in this regard, the court “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” (see Chung Sau Ling v Million Join Ltd [2003] 4 HKC 561 at 564A-B, paragraph 16).

7. It should be noted that in Chung Sau Ling (above), there was a delay of 2 years.  Further, there was no explanation for the delay until the hearing before the Court of Appeal, in which counsel for the respondent submitted that the delay was due to the oversight of the solicitors.  The Court of Appeal, however, granted leave to appeal out of time after considering all relevant factors.

8. In the present case, the 6-month appeal period expired on 19 March 2008.  The Summons was filed on 4 June 2008.  Hence, the delay was about 2½ months.

9. In the affirmations prepared by the Respondent’s solicitors, the following reasons for the delay have been provided:-

(1)    The Applicant alleges that he has sustained back injures as a result of the accident.  However, there is no dispute that the Applicant has had pre-existing back problems.  Hence, this is a question as to whether the Applicant’s alleged injuries were caused by the accident.

(2)     In January 2007, the Respondent’s solicitors began to ask the Applicant’s solicitors to supply all relevant medical records in respect of the Applicant’s pre-existing conditions.  Some of the documents requested were first supplied by the Applicant in April 2007.  However, the whole process took quite a long time and lasted until March 2008 when the Respondent received MRI films from the Applicant.

(3)     In June 2007, the Respondent engaged Dr Chun to conduct an examination on the Applicant.  However, no appointment with Dr Chun could be arranged until 13 December 2007 and Dr Chun’s report, which is rather lengthy, was eventually obtained in late April 2008.

(4)  The 6-month appeal period had slipped out of the mind of the Respondent’s solicitors who, at all material times, were focusing on the matters stated in sub-paragraphs (1) to (3) above.

10. Given the above chronology of events, although the matters relating to the Respondent’s request for the Applicant’s past medical records and also the arrangements with Dr Chun can explain what happened up to March/April 2008, Mr Kwok for the Respondent frankly and disarmingly admitted that the failure to lodge an appeal within time was primarily caused by the oversight of his firm.  Such an oversight, according to the Court of Appeal’s decision in Chung Sau Ling (above), should not be regarded as unacceptable and should be considered in conjunction with other factors such as the merits of the appeal and the prejudice caused to the Applicant.

Merits of the appeal

11. There are substantial discrepancies between the Board’s assessment of the Applicant’s permanent loss of earning capacity as shown in the Certificate and that of Dr Chun.

12. According to the Certificate, the Applicant has suffered “BACK INJURY RESULTING IN PROLAPSED INTERVERTEBRAL DISC AT L5/S1 WITH RADICULOPATHY; STIFFNESS”.  The “loss of earning capacity permanently caused by the injury” has been assessed to be 28%.

13. The Applicant has engaged Dr Peter Ko (“Dr Ko”), also a specialist in orthopaedics and traumatology, to give medical opinion.  Dr Ko has estimated the Applicant’s permanent loss of earning capacity to be 28%.  Further, on the issue arising from the pre-existing condition, Dr Ko has expressed the following views:-

(1)  The Applicant did have pre-existing lumbar disc degeneration with spondylosis and mild disc prolapse.  However, such problems did not cause any significant compression on nerve root or symptoms.

(2)  After the accident, the Applicant developed full blown symptoms of disc prolapse with left sciatica, resulting in neurological deficit.

(3)  MRI showed substantial increase in the size of prolapsed lumbar disc when compared with the MRI taken before the accident.

(4)  Hence, there is a direct causal relationship between the Plaintiff’s current disabilities and the accident.

14. Dr Chun, after referring to the relevant medical records of the Applicant, has nevertheless come to the following views:-

(1)  The MRI of the Applicant’s lumbar spine done on 8 December 2004 (i.e. prior to the accident) revealed a prominent left protrusion at L4-5 level with compression of the left exiting nerve root, which could explain the left hip pain and numbness over left thigh then complained by the Applicant.  The L4-5 disc protrusion was pre-existing and also symptomatic.

(2)  It has been recorded in the medical notes that on the day of the accident i.e. 30 January 2005, no specific mode of injury was described by the Applicant.  Given the pre-existing symptoms prior to the accident, the accident did not cause the L4-5 disc protrusion or L3-4 disc bulging.

(3)  The prognosis of the pre-existing disc protrusion was not good.  But for the accident, it would have required surgical treatment in any event.  The accident did not cause the Applicant any impairment of the whole person or loss of earning capacity.

15. Despite the discrepancies in the medical evidence outlined above, Mr Wallace Cheung, counsel for the Applicant, submitted that the Respondent failed to show a meritorious case which could justify a rehearing of the medical evidence.  He pointed out various aspects in which Dr Chun’s views are inconsistent with those recorded by the treating doctors in the government hospitals, the radiologist and Dr Ko.

16. It is impossible and unnecessary to determine at this stage whose medical opinion should be preferred.  In this regard, I bear in mind that in considering if leave to appeal against the Certificate out of time should be granted, the court only needs to decide if the “overall justice of the case” justifies an extension of time without having to “go into detailed arguments” (see Chung Sau Ling (above), p. 564, paragraph 17).   Given the disparities in the medical assessment revealed from the documents now available, it is sufficient for me to say that the court certainly needs to hear evidence and explanations from the experts and that a re-hearing is warranted.

Prejudice

17. As submitted by Mr Cheung, should leave to appeal out of time be granted, the Applicant would suffer prejudice in the sense that he would be deprived of the entitlement to treat the Certificate as final and conclusive assessment of the Applicant’s loss of earning capacity.  However, such prejudice is inherent in every single case where leave to appeal out of time is granted.  It is against such prejudice that the court is required to take into account all relevant factors in order to determine if an extension of time should be granted in the interest of justice.

18. In the present case, the Applicant knew that the Respondent started looking into the issue of pre-existing injuries in January 2007 and that the Respondent also informed the Applicant in July 2007 of the appointment with Dr Chun.  In the circumstances, I am of the view that the Applicant will not suffer any substantial prejudice if leave to appeal against the Certificate is granted.  In any event, any prejudice suffered by the Applicant does not outweigh the other factors that I have considered.

Leave to appeal out of time granted

19. In the light of the matters discussed above, it is my decision that the Respondent should be given leave to appeal against the Certificate out of time.  I also grant leave to the Respondent to re-amend its Amended Answer and also to file and serve Dr Chun’s medical report dated 4 March 2008.

20. Given my decision, it is not necessary for me to consider if the Respondent should have leave to file and serve Dr Chun’s medical report if leave to appeal out of time is not granted.  However, for the sake of completeness, I wish to, very briefly, provide my observations on this issue (in case it becomes relevant in future proceedings) as follows:-

(1)  Mr Cheung for the Applicant has referred me to a number of authorities including Yat Tung Investment Co Ltd v Dao Hang Bank Ltd [1975] AC 581 to the effect that should the court refuse the application for leave to appeal out of time, it would be an abuse of process for the Respondent to adduce Dr Chun’s medical report when the Certificate is already binding on the parties.

(2)  I am of the view that those authorities on abuse of process are not applicable here.  The overriding question is whether Dr Chun’s report is relevant.   In this case, Dr Chun has gone so far as to say that the Applicant’s disabilities are not caused by the accident at all.  Such a view (to be accepted or otherwise) will no doubt be relevant when the court considers if the Respondent is liable for the accident.

(3)  I would therefore allow the Respondent to have leave to adduce Dr Chun’s report even if I did not grant leave to appeal out of time.

Costs

21. I have heard preliminary submissions on costs from both parties.  Mr Kwok accepted that the Respondent was seeking the court’s indulgence.  However, he argued that the Applicant unreasonably opposed the application notwithstanding that full reasons had been provided in the affirmation made in support of the Summons.

22. I take into account the following matters regarding costs:-

(1)     It is the Respondent’s failure to comply with the statutory requirement which has necessitated this application.  The Respondent should thus bear the costs of the Summons up to a time when the Applicant had or should have had sufficient information to consider if he should oppose the application.

(2)     In the present case, I agree with the Respondent that the affirmation of Wong Pak Lung filed on 4 June 2008 contained sufficient information for the Applicant’s consideration.

(3)     However, one must not lose sight of the fact that this application has been made for the purpose of the Respondent’s intended appeal.  It is inappropriate to, at this stage, order the Applicant to bear any part of the costs of this application if the Respondent’s appeal against the Certificate eventually turns out to be unmeritorious.

23. I think that a fair order as to costs should be:-

(1)     Costs of the Summons incurred up to 9 June 2008 (i.e. 5 days after the affirmation of Wong Pak Lung was filed) be to the Applicant in any event.

(2)     Costs of the Summons incurred since 10 June 2008 (including costs of the hearing on 29 July 2008 and costs reserved in respect of the hearing on 11 June 2008) be costs in the cause.

The order

24. In conclusion, I order that:-

(1)  the Respondent do have leave to appeal against the Certificate notwithstanding that the time limit for the appeal has expired;

(2) the Respondent do have leave to re-amend its Amended Answer herein in such manner as shown in green as per the copy of the draft Re-Amended Answer annexed to the Summons;

(3)  service of the Re-Amended Answer be dispensed with; and

(4)  the Respondent do have leave to file and serve Dr Chun’s medical report dated 4 March 2008 within 7 days from the date of this order.

25. Further, I make a costs order nisi in such terms as set out in paragraph 23 (1) and (2) above.  I also order that the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.