LIMBU NETRAKUMAR v. YAU LEE CONSTRUCTION CO LTD AND ANOTHER

DCEC 710/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 710 OF 2000

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DECISION

1. The applicant applies for leave out of time to appeal against the assessment of the Medical Assessment Board in Form 9.

2. The original assessment was some 31.5% but on appeal it was reduced to 3.5%.  No reason was given by the Medical Assessment Board.  It appeared that the Board in the first and second assessments were relying on the same two medical reports of the applicant.  The medical reports of the applicant, including the orthopaedic report, the neurologist report in 2002/2003 and the report of the ENT doctor, Dr Wu, way back in 2003 gave assessment which far exceeded the 3.5% awarded by the Board.

3. Applicant’s solicitor says 7% awarded or assessed by Dr Choi, the orthopaedic doctor; 5% assessed by the neurologist Dr Choa; and 3% for loss of hearing in one ear assessed by Dr Wu, the ENT doctor, these would easily add up to some 15% disability of the whole person.

4. Respondents’ solicitor disputed the aggregate but despite the argument it is clear to me that there are merits in the appeal.  The assessment of the Board baffled me why it was only 3.5%.

5. Furthermore, the applicant seeks to pursue a line of claim that assessment should be based on section 9(1)(a) of the Employees’ Compensation Ordinance and that the formula in Hong Kong Paper Mill’s case should apply; and this was based on part of the findings of the orthopaedic doctor that the applicant’s medical condition after the accident was that he should not resume his former work as a carpenter on a construction site.  This was due to the injury to his back and due to pre-existing condition that the T9 lumbar or vertebra would suffer pain if any heavy weight lifting was done, and the applicant should avoid work of this nature.

6. It is quite inevitable working on construction sites as a carpenter that lifting of heavy weights would occur in the work.  Even if the applicant resumed his former work as a carpenter on construction sites, the medical opinion was that early retirement would be anticipated.  In all, it could be seen that the applicant was not fit to resume or not seen to be fit as assessed by the doctor to resume his former work and it is not recommended.

7. It was also pointed out that the applicant’s back injury and condition was stable.  In other words, despite the delay not much changes had occurred over the years.  This medical opinion goes to merit as well as to the consideration whether any prejudice is caused to the respondents.

8. As far as prejudice is concerned, I could not see how the granting of leave to appeal against the Form 9 decision or assessment would prejudice the respondents today.  Most of the applicant’s condition or assessment were based on existing medical reports at the time of the accident or shortly after the accident and not on the latest 2006 reports.

9. Respondents say they were deprived of the chance of getting the latest or an updated medical report of the applicant.  The applicant queried whether that was necessary.  I have some reservation whether if an updated or further medical report on the applicant was necessary but if the respondents insist on one, I do not think I could deny them the right to have the latest update on the applicant’s medical condition.

10. The length of delay was quite long – over two and a half years – but the length is not the consideration to allow or not to allow the granting of leave to appeal.  The reason for the delay is of crucial importance.  The reason, as far as I could see from the arguments and the papers submitted before me, was due to some oversight on the part of the applicant’s former Legal Aid assigned solicitors.  It was obvious that something had gone amiss.  Be that as it may, the question is was the applicant himself at fault?

11. The correspondence between the applicant’s former solicitors and the Legal Aid Department clearly showed that the applicant had instructed his solicitor to appeal the decision of the Board.  Obviously this was not done.  The period of appeal against the Form 9 decision was 6 months and 6 months elapsed rather quickly; and it does appear that over the years no appeal was carried out.  But the relevant period of consideration was a 6-month period and during that 6-month period there is clear evidence to show the applicant had given instructions to his solicitors to appeal.

12. We do not know why it was not carried out.  There were some delay in the solicitors discussing and considering whether to ask for an extension in the Legal Aid certificate to cover the appeal.  The fact in the end was that the appeal was not carried out.  It does appear that the fault lies not with the applicant at all.  On that basis I do not think the applicant should be penalized for the fault of his legal representative.

13. This is a case where the delay, though unduly long, was not due to the applicant’s fault.  The applicant had instructed the solicitors to appeal.  There are merits as far as I could see in the appeal itself.  The assessment board’s 3.5% was clearly contrary to the evidence and there is a very strong chance, in fact it looks very likely, that the disability would be re-assessed by the court on appeal.

14. I do not think the respondents would be prejudiced in any way to grant this extension of time now under section 18(2).  Therefore, I allow this application.  I make an order that, firstly, leave is granted to the applicant to appeal against the Certificate of Review of Assessment in Form 9 made by the Employees’ Compensation (Ordinary Assessment) Board dated 19 November 2003; and secondly, the costs of and incidental to this application be to the respondents in any event; and thirdly, the applicant’s own costs be taxed in accordance with Legal Aid regulations.

Representation: