CHAN MAN LAP v. SECRETARY FOR JUSTICE

DCEC261/1998

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 261 OF 1998

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R U L I N G

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1. This is a claim for employee's compensation which is four months out of time.

2. Under section 14(4) of the Employees' Compensation Ordinance ("the Ordinance") the court may hear and determine an application notwithstanding that it has not been made in due time if it is satisfied that there was reasonable excuse for the failure to make the application within the two year limitation period provided for in section 14(1) of the Ordinance.

3. Today, the case has been listed for trial. Much time and money has been spent in getting it up and it is only now that I am required to deal with this crucially important preliminary issue. Both parties accept that the usual procedure has not been followed here, which is to ask the judge to rule on this point either at the first call-over or to adjourn the matter for argument at an early date before any further directions are given. What has happened here should not be allowed to recur. If I refuse to give leave, much time and costs will have been unnecessarily incurred. With that, I now turn to the Ruling.

4. The most helpful recitation of the principles to be applied in deciding this sort of issue is to be found in the judgment of Judge Charles in this court in the case of Wong Tak-man v Shaws & Sons Limited [1957] HKDCLR 88. The principle is set out at pages 88 and 89 of the judgment which I should set out in full.

"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 Workmens' Compensation Act 1925 of the United Kingdom. The numerous authorities upon which that phrase show that a cause or failure to make a claim within the prescribed period was reasonable and therefore excuse 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 interests to defer or not to make a claim. (See Willis's Workmens' Compensation, 36th Edition, page 436 and following). 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 Company, 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."

(See also Chan Wing-chun v Sun Chong Bleaching & Dyeing Factory Limited [1989] HKDCLR 55, where Judge D'Almada Remedios, also in this court, applied the same reasoning.

5. The principle is clear. It must be applied to the particular facts of the case before the court. Particular decisions, and there are many both reported and unreported, will rarely be of great assistance because, inevitably, they turn on their own facts. With this in mind, I must now consider the facts of this application.

6. The applicant was and continues to be an Assistant Officer 2 employed by the Correctional Services Department. He has been so employed since 1982. This is the lowest rank in the service. He has been educated to Form 1. He was aged 32 at the date of the accident, which was on 13 December 1995. He was then stationed at the High Island Detention Centre, a closed camp for Vietnamese asylum applicants. He was riding his motorcycle and returning from the staff canteen within the camp when he ran into the back of a car that was being driven by a fellow officer. He sustained serious injuries to his left knee and pelvis and was hospitalised for four weeks. Six years later, he continues to walk with a limp.

7. At the forefront of his case for not making his application within the two year limitation period, is the fact that his principal officer, Mr Kwan, told him as soon as he returned to work after his stay in hospital, that the Department would not be treating his case as one of Employees' Compensation under this Ordinance because he had broken the rules and not taken the Department's transport to the staff canteen - he had chosen to take his own motorcycle. The principal officer then cited a similar case from Cape Collinson Prison. This Departmental position was then repeated in January or February 1996 by Chief Officer Foo from the Staff Welfare Unit (who I presume is also of substantial rank) when he visited the applicant at home. Also present on this occasion was Mr Lau, a more junior officer also from the Staff Welfare Unit. This had also been said to him by other officers including the Hospital Officer at the Detention Centre.

8. The applicant says that as these views had been expressed to him from on high by officers who were of far greater rank than his and who apparently spoke ex cathedra, he merely accepted that view as being correct. For that reason, he proceeded on the basis that a claim under the Ordinance was not available to him.

9. Then, in March or April 1998 (time had already expired by then), he was encouraged by a friend to try and make an application. He saw his solicitors in April and they advised him to make an application, which he did. Ms Alice Tsang who appears for him, pressed the fact that the applicant is of the lowest rank in the service. His superiors apparently spoke with authority and appeared to know what they were talking about. One should set the matter within its proper context. This is a disciplined service. Although it is not suggested that these senior officers set out to deliberately mislead the applicant, they did mislead him and that taken over the whole of the two year period, this must amount to a reasonable excuse and that leave should be given, particularly where the delay is relatively modest and no forensic prejudice has been caused to the respondents.

10. Mr Gidwani, in opposing the application, submits that these superior officers were merely expressing the defendant's viewpoint. The applicant was free to go off and seek advice long before the expiry of the two year period, and he has also helpfully drawn attention to Wong Tak-man v Shaws & Sons Limited supra., Prophet v Roberts [1918] 11 BWCC 301, and Yan Hon-kam v Sun Fook Kong Construction Company & Another DCEC133/2001, unreported.

11. As I said at the outset, one needs to attend to the detail of the particular case. In this matter, I am impressed by the fact that the application is set against the background of a disciplined service and that this applicant, of the lowest rank, was being told on more than one occasion that this sort of application was not maintainable. When one stands back from this situation, it is easy to understand how and why this officer accepted the firm views being put forward by his superiors.

12. This does, in my view, amount to a reasonable excuse which attained for the whole of the two year period. I will give leave, and in doing so I have also had regard to the relatively short delay and the lack of prejudice to the respondents.