WONG WAI PUN, MICHAEL v. G4S CASH SERVICES LTD

DCEC 999/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 999 OF 2009

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BETWEEN

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D E C I S I O N

1.  Wong, the Applicant, claims against his employer, G4S, the Respondent, for compensation pursuant to the Employees’ Compensation Ordinance, Cap.282.

2.  The accident happened on 5 July 2007 in the course of Wong’s work as a courier-man.  But Wong did not file his application (“the Application”) until 4 September 2009, which was outside the statutory time limit for doing so.

3.  At the same time when the Application was filed, Wong also filed another employees’ compensation application in respect of a second accident allegedly happened in the course of work for G4S on 6 September 2007 (DCEC 1000/2009).  That application was filed barely within time.

4.  By summons dated 17 December 2009, G4S applies to strike out the Application on the ground that the claim in the Application has been time-barred at the time of its filing.

5.  Wong acknowledged that the Application is out of time.  In December 2009, he obtained leave to amend the Application by including the prayer for leave to proceed with his application out of time.  Incidental to this, Wong also prayed for leave to appeal out of time against the Medical Assessment (Ordinary) Board (“MAB”)’s certificate of assessment of his loss of earning capacity (“Form 7”).

6.  Hearing of G4S’ summons is no different from a hearing of Wong’s application for extension of time as a preliminary issue in the Application.

Background

7.  On 5 July 2007, then 33-year-old Wong suffered a fall in the course of work as a courier-man and was injured (“the 1^st accident”).  He went to the Accident and Emergency Department of the hospital for treatment.  Physical examination revealed mild tenderness on the lateral side of right ankle only.  No apparent abnormality was detected on his right shoulder.  He was discharged with analgesics and given a few days’ sick leave.  Wong was then arranged to consult the panel doctor of his employer.

8.  Sick leave was granted for a total period of 2 weeks.  Wong has received several sessions of physiotherapy.  The employer’s panel doctor certified Wong fit to resume work, but in modified and lighter duties, on 26 July 2007 until 3 August 2007.  He was assessed to be fit to return to his normal duties from 4 August 2007.

9.  On 13 August 2007, G4S filed Form 2 reporting the 1^st accident to the Labour Department.

10.  On 6 September 2007, the second accident allegedly happened when Wong sustained injuries in the course of moving things at work (“the 2^nd accident”).

11.  On 29 October 2007, Wong was assessed by the MAB in respect of the 1^st accident.  According to the Form 7 dated 12 November 2007, Wong was certified to have suffered right shoulder and right ankle injury.  The MAB certified the 2 weeks of sick leave mentioned above and assessed Wong’s loss of earning capacity permanently caused by the injury to be 0%.

12.  On 19 November 2007, the Labour Department issued the certificate of compensation assessment accordingly.

13.  As mentioned above, on 4 September 2009, Lau filed separate applications for compensation in respect of the 1^st accident and 2^nd accident.  In each application, Wong invariably stated the accident caused him orthopaedic injuries to the neck, shoulder, hand(s), foot (or feet), spine and abdomen.  He also invariably stated that as a result of each accident, he has lost his capacity to work as a courier man and many other occupations.  He claimed to be in need of long-term care and medication.

14.  In November and December 2009, Wong was granted legal aid in this case and DCEC 1000/2009 respectively.

The law

15.  Pursuant to section 14(1) of the Ordinance, proceedings for the recovery of compensation under the Ordinance shall not be maintainable unless the application for compensation has been made within 24 months from the occurrence of the accident causing the injury.  Section 14(4) confers on the court the discretion to receive and determine an application out of time, if it is satisfied that there was reasonable excuse for the failure to make an application.

16.  Pursuant to section 18(2), no appeal against the MAB’s assessment shall lie after the expiry of 6 months from the date of the issue of the certificate of assessment.  The subsection too provides that the court may, if it thinks fit, grant an extension of time.

17.  The court in Wong Man Tak v Shaws & Sons Ltd [1957] DCLR 85 has considered what amounts to reasonable excuse for the purpose of section 14(4).  The case has been often cited and applied.  The relevant passage (at 88-89) reads as follows:

“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 relied 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 in 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……Moreover, an applicant is 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……The principle to be deduced from the foregoing is, I think, that an applicant has a reasonable excuse for not making in 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.”

      [Emphasis added]

18.  Ignorance of a right to claim compensation until after the expiry of the limitation period is generally not a reasonable excuse: see Chan Wing Chuen v Sun Cheong Bleaching & Dyeing Factory Ltd [1989] HKDCLR 55; Tsui Man Cheong v Lee Hung Ying Vicky trading as Fei Tsui Transportation Company, DCEC 1290/2008 (21 September 2009) at para.6.

19.  Likewise, to enable the court to exercise its discretion under section 18(2), Wong has to provide credible explanation for the delay: see Chung Sau Ling v Million Join Ltd trading as Tsupo Seafood Restaurant, CACV 8/2003 (16 July 2003) at paras.16-17.  The merit of the appeal against the MAB’s assessment is also relevant: see Chung Sau Ling from para.18.

Explanation for the delay

20.  Wong was 2 months out of time for making the Application and was barely within time for making the application in DCEC 1000/2009.

21.  There is no suggestion that Wong believed that his injury was trivial or that a claim for compensation was unnecessary.  He apparently believed the opposite.  The injury also did not prevent him from transacting business.  According to his affirmation, he did not know what steps to take to appeal against the MAB’s assessment.

22.  Form 7 comes in a prescribed bilingual form.  It contains an “important note” advising both the employer and the employee of their right to lodge objection to or appeal against the assessment.  Not only that, it spells out clearly that an objection should be lodged in writing to the Commissioner for Labour within 14 days or an appeal should be filed with the District Court within 6 months.

23.  Wong admitted that he was aware of the assessment of the MAB stated in Form 7.  He was actually very surprised, dissatisfied and wished to appeal.  In the circumstances, Wong cannot be heard to suggest that he was somehow ignorant of the time limit and the manner of proceeding with an objection or an appeal, which are also spelt out in the form.

24.  In the normal course of events, one would have expected the applicant to go to the Labour Department or the District Court within the time for the purpose of lodging the objection or appeal.  Wong did not, but went to the Association for the Rights of Industrial Accident Victims (“the Association”).

25.  The real explanation tendered by Wong is that he decided to forgo the appeal against Form 7 and the claim for compensation as a result of the advice of a Mr Ho of the Association.

26.   According to his affirmation, this Mr Ho of the Association allegedly gave him the following advice:

(1)  It would be useless for Wong to challenge the MAB’s assessment in the absence of any documents to prove his injuries.

(2)  If Wong challenged the assessment, there was a possibility that the employer could seek the refund of the periodical payments already received by Wong.

(3)  In the absence of evidence to support his entitlement to further sick leave, Wong’s claim for further periodical payments would be challenged by the employer.

27.  Wong explained that he took Ho to be an expert in the area and adopted his advice.  He believed that he did not have any chance to appeal against Form 7 or any right to commence legal proceedings for compensation.  When the certificate of compensation assessment was issued, Wong also accepted it on Mr Ho’s advice.

28.  I must say that on its face, the alleged advice given by Mr Ho of the Association was odd and difficult to understand objectively.  This is particularly so when one also considers what Wong says to have happened 2 years later in September 2009.

29.  According to Wong, it was on 2 or 3 September 2009 when he received a telephone call from the Labour Department whereby he was informed of the time limit for filing his claim in respect of the 2^nd accident.  The time would run out in a few days.  He did not understand the meaning of that and therefore went to consult Mr Ho.

30.  On that occasion, Mr Ho allegedly gave Wong the following advice:

(1)  Mr Ho urged Wong to seek legal aid and insisted that he set out for the Director of Legal Aid (“DLA”).

(2)  Since Wong was seeking legal aid in respect of the second accident, it would be worthwhile for him to notify the DLA his intention to commence legal proceedings for compensation for the 1^st accident as well.

(3)  If the DLA was willing to consider his first accident, it would be possible for Wong to seek the court’s discretion to re-assess his injuries arising out of the 1^st accident.

31.  First, according to Wong, he has taken no action in respect of the 1^st accident after dropping the idea of claim in November 2007.   But he was clear about his intention to claim compensation in respect of the 2^nd accident.  The fact was that he has not filed any claim in respect of the 2^nd accident either.  Had it not been the telephone call from the DLA, he would have missed the deadline for filing his claim in respect of the 2^nd accident too.

32.  After the consultation with Mr Ho in November 2007 in respect of the 1^st accident, Wong could not possibly claim ignorance of his right or step to take.  In court, Miss Fong for Wong tried to explain by reference to the fact that there was yet to be any MAB assessment of Lau’s condition as a result of the 2^nd accident.  If this were the reason for Wong’s inaction even in respect of the 2^nd accident, it should be for Wong to say it, not for Miss Fong to speculate.  Further, MAB’s assessment is never a pre-requisite to the filing of the application for compensation.

33.  Secondly, and more importantly, it is unknown when Wong had his intention to claim in respect of the 1^st accident revived.  It is also unknown what could have caused him to do so.  Likewise, it defies understanding what could have caused Mr Ho to advise Wong that it would be “worthwhile” to notify the DLA of his revived intention to claim in respect of the 1^st accident.  There is no suggestion whatsoever of any change in the circumstances about the claim in respect of the 1^st accident, whether in terms of evidence or merits.  Again Miss Fong tried to put forward in court what was effectively her speculation about what might have happened during the interim to account for the change of mind.

34.  Thirdly, it is difficult to make sense out of what Mr Ho allegedly said, namely, if the DLA was willing to “consider” the 1^st accident, it would be possible for Wong to seek the court’s exercise of discretion to re-assess his injuries arising out of the 1^st accident.  The discretion of the court can be invoked only if the criteria under sections 14(4) and 18(2) are satisfied, whether the applicant is legally aided or not.  If the thought was that the involvement of the DLA might make a difference, it defies understanding why Mr Ho has not advised Wong to seek legal aid in November 2007 regarding the 1^st accident in the first place.

35.  Lastly, prior to this hearing, Miss Fong sought to produce a letter from a Mr Ho of the Association dated 22 March 2010.  Even assuming that this letter is taken into account as evidence, though not properly adduced by way of affirmation, all that letter says is that Wong has attended and telephoned the Association to enquire about his case involving the 1^st accident.  Nothing was mentioned about the advice alleged given to Lau in November 2007 and September 2009.

36.  Whether the lapse of the time limit can be reasonably excused is not a totally subjective test.  Objectively, the matters discussed above cause me to have grave doubt as to the plausibility of Wong’s explanation.

37.  Miss Fong then appealed to the merits of the Application.  She questioned the MAB’s assessment of 0% loss of earning capacity.  She referred to the case of Chung Sau Ling.  In that case, the court of appeal found that the merits of the application clearly justified the extension of time.  This was due to the huge disparity between the MAB’s assessment and the expert opinion of not just the employer but the applicant too.  What materials does Wong rely on to show the merits of the Application?

38.  Miss Fong submitted that the MAB’s assessment is contradicted even by the assessment of the panel doctor of G4S.  She referred to the doctor’s description of Wong’s working restrictions his medical report dated 12 October 2007.

39.  I do not think what Miss Fong submitted is an accurate reading of the panel doctor’s assessment.  The doctor was referring to the working restrictions that Wong would be faced with when he returned to work in late July 2007.  Hence Wong was recommended to take up modified duties until 3 August 2007.  Wong was considered fit to return to his normal duties with effect from 4 August 2007.  The WIRM Rehabilitation and Return to Work Plan dated 26 July 2007 issued by the doctor and actually signed by Wong evidences that.  The panel doctor never suggested that Wong would be faced with these working restrictions on a permanent basis.

40.  Miss Fong emphasized that Wong did not in fact resume his normal duties in August 2007 as the doctor advised.  G4S continued to assign Wong with office duties instead.  Miss Fong submitted that this was G4S’s admission that Wong was not fit to resume his normal duties.

41.  I do not see how such an inference could be drawn.  In any event, Mr Wong, Human Resources Director of GS4, explained in his affirmation that this was the company’s policy and decision to provide further time for Wong to gradually adjust himself to taking up normal duties, notwithstanding the panel doctor’s recommendation.

42.  Miss Fong submitted that Wong has yet to have the opportunity of obtaining medical expert opinion as that available in Chung Sau Ling.  I understand that.  However, there was not even evidence of any medical consultation or treatment that Wong would be expected to have sought for his injury due to the 1^st accident, since the panel doctor last saw him in late July 2007.  Wong has allegedly been led to believe that he could only attend the panel doctor, if he needed sick leave.  Irrespective of the parties’ dispute in this respect, seeing a doctor could only be driven by the need for treatment rather than sick leave.  What Wong alleged does not sit well with his claim in the Application that he needs long-term care and medication.

43.  Apart from the above, Wong has provided no other materials in support of the merits of his case that he has suffered permanent loss of earning capacity, as opposed to the assessment by the panel doctor or the MAB.  As Wong has returned to work after the sick leave, there is also no question of any loss for temporary incapacity yet to be accounted for.

44.  Considering the materials before this court, I am not satisfied that discretion under section 14(1) should be invoked or exercised in Wong’s favour.  I am not satisfied that this is a fit case for exercising my discretion under section 18(2) to allow the appeal against Form 7 to proceed.

Conclusion

45.  It follows from above that the Application ought to be dismissed.  Wong should now focus on his application in respect of the 2^nd accident.

46.  Miss Fong submitted that in the event that G4S succeeds in its application, G4S should nevertheless be deprived of the costs of its summons.  She argued that G4S could and should have sounded out its objection when Wong sought to introduce the prayers for leave to proceed out of time by way of amendments to the Application.  G4S chose to consent to the amendment and then to take out the striking out summons.

47.  I do not agree with Miss Fong.  By consenting to the application for amendments, G4S could not be taken to concede in respect of the merits of Wong’s application for extension of time.  Had G4S chosen to argue and succeeded in arguing that the amendments should not be allowed, G4S would still have had to apply to dispose of the Application on the ground of the statutory limitation, unless the court somehow did so on its own motion.

Order

48.  The Application is dismissed with costs of the Application, including the costs of and occasioned by G4S’ summons, to G4S.  Costs shall be taxed, if not agreed.  Wong’s own costs shall be taxed subject to the legal aid regulations.