TANG MOON KWOK v. THE HONG KONG JOCKEY CLUB

DCEC 2177/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2177 OF 2014

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DECISION

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Background

1.  This is the respondent’s application to strike out the applicant’s application for Employees’ Compensation (“the Application”) pursuant to sections 14 and 21 (1) of the Employees’ Compensation Ordinance (“the ECO”), O.18 r.19(1) of the Rules of the District Court and the inherent jurisdiction of the court.  The respondent relies on 3 grounds: (i) the Application was commenced out of time; (ii) the Application discloses no reasonable cause of action; and (iii) it is otherwise an abuse of process of the court.

2.  The applicant filed the Application on 22 October 2014, alleging that on 26 August 2011, he was injured by accident arising out of and in the course of employment.  He first sought medical treatment on 29 August 2011 and the course of action was known to him on 12 November 2011 when he was advised by a Chinese medical practitioner, Dr Kan.

3.  The applicant alleges that he was employed by the respondent since 9 October 1995; then the respondent provided him a chair (the “Old Chair”).  In about July 2011, a new chair (the “New Chair”) and a new desk were provided.  All along, his working space was tiny and limited.  From time to time, while he was sitting on the New Chair and working, he had to move the New Chair with his legs on the ground which exert excessive strain on his lower body.  Gradually, he felt persistent tiredness of his back; his back muscle felt tired and then fatigue.  On 26 August 2011, while he was sitting on the New Chair and working as usual; suddenly he felt great low back pain and numbness and weakness at his right leg (“the Accident”).  He did not know the cause of the Accident until 12 November 2011 that he was advised by Dr Kan that his low back pain was caused by sitting posture and/or the use of chair with insufficient backrest.  It was not until 22 October 2014 that he filed the Application.

4.  The respondent agrees that the applicant was under its employment at the material time.  However, it disputes that the Accident has ever occurred and the applicant was injured as a result.  The respondent’s major complaint is that the Application is time-barred.

The Application was commenced out of time

5.  Section 14(1) of the ECO requires an employee who was injured in the course of employment and intends to claim compensation under the ECO to apply to the court within 24 months from the occurrence of the accident; failing which, the proceedings for recovery under the ECO for the injury shall not be maintainable.

6.  Section 14(4) of the ECO provides that notwithstanding the non-compliance of section 14(1), the court may receive and determine an application for compensation under the ECO if it was satisfied that “there was reasonable excuse for the failure so to give notice or to make an application, as the case may be”.

7.  The power to extend time under section 14(4) of the ECO is discretionary.  The court has to take into account of the circumstances both before and after the expiry of the statutory time limit.  In the exercise of its discretion whether to extend time, a court would not assist a party who has slept on his rights. [See:  Lau Suet Fung v Future Engineering Co, CACV 110/2003, 6 February 2004 at paragraphs 62 to 69]

8.  The burden is on the applicant to prove the existence of a “reasonable excuse” with credible evidence.  In Chan Wing Chuen v Sun Cheong Bleaching & Dyeing Factory Ltd [1989] HKDCLR 55 at paragraph 57:-

“The Employees’ Compensation Ordinance is, in a sense, penal in nature. The employer is made liable to pay compensation in respect of an accident through no fault of his and for which he had done no wrong. It is important to bear firmly in mind that s.14 of the Ordinance constitutes a statutory protection for the employer; a protection which he ought not to be deprived unless all the circumstances warrant the conclusion that reasonable excuse for not complying with the Ordinance has been proved to exist.”

(As adopted by His Honour Judge Andrew Li in 李錦樹 v 太古可囗可樂香港, DCEC1206/2014, 26 June 2015 at paragraph 13.)

Reasonable excuse

9.  In Mohammad Javed v Lo Kui Cheung, DCEC 1230/2014, the learned Deputy District Judge Elaine Liu concluded that the often cited and applied passage about the interpretation of “reasonable excuse” in section 14(4) of the ECO was the following judgment of His Honour Judge Charles in the case of Wong Man-tak v Shaws & Sons Limited [1957] DCLR 85 at pages 88 to 89:-

“A reasonable excuse in the ordinary sense of the phase means in relation to a failure by an applicant to make his application for compensation within the prescribed period if the failure was due to such cause or causes that it ought, as a matter of reason, to be excused. …  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.  … The principles 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 was due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part.”

10.  The Court of Appeal in Tsang Loi Fat v Sun Fook Kong [2011] 4 HKLRD 344 at paragraph10 set out a list of factors when considering what may amount to “reasonable excuse”:-

“When the court rules on whether there is a reasonable excuse in relation to a failure by an applicant to make his application for employees’ compensation within the prescribed period, apart from considering the reason for the delay, it also has to consider the length of the delay, whether there is sufficient ground to support an award of employees’ compensation to the applicant; and whether prejudice would be caused to the interests of the respondent if an extension of time is granted by the Court. …”

11.  The Court of Appeal further listed the following common but non-exhaustive factors that have to be taken into account when consider the reason for the delay:-

“(1)  The age, education level, intelligence and background of the Applicant;

(2)  Generally speaking, Applicant’s ignorance of the law is not a reasonable excuse for the delay.  On the contrary, if the Applicant is sufficiently learned and knows how to make a claim, but fails to do so within the prescribed period, this is a factor to support the contention that the Applicant has failed to provide a reasonable explanation for the delay;

(3)  The health condition of the Applicant, whether he was fully aware of the extent of his injury before the expiry of the prescribed period for the claim; or whether his failure to make the claim before the expiry of the prescribed period is because of his illness; and

(4)  Whether the Applicant’s failure to make a claim before the expiry of the prescribed period was induced by the conduct of or words said by his employer, insurance company, or a third party.”

Issues to be decided

12.  Accordingly, I should consider the following matters when exercising my discretion concerning the Application under section 14 of the ECO in this case:-

(a)  the reasons for the delay;

(b)  the length of the delay;

(c)  sufficient ground to support an application; and

(d)  prejudice to the respondent.

Reasons for the delay

13.  The respondent argues that the applicant fails to show a reasonable excuse.  The respondent submits that the applicant’s claim that he has no knowledge from the respondent on the usual limitation period of 24 months from the date of the Accident, amounts to ignorance of the law, is not a defence.  It is simply incredible for the applicant to assert that he did not know, and/or he could not have known about the time limit. Further, the respondent submits that the applicant’s reason for the delay should not attract any sympathy from the court.

14.  The applicant was born on 31 July 1963; and since 9 October 1995, he was employed by the respondent as a Building Services Engineer; and then he was promoted to Contract Administration Officer.  It is no doubt that he received good education.  He was at the age of 48 when the alleged Accident occurred.

15.  Ignorance of the law is not a reasonable excuse of the delay. According to the applicant, the cause of action was only known to him until 12 November 2011, when he was advised by Dr Kan that his low back pain was related to his sitting posture and/or the use of chair with insufficient backrest (腰椎勞損，腰椎痛因座姿不正引至此痛 [HB66][1]). He then instructed his solicitors to issue the Application on 22 October 2014. He explained that he did not know and the respondent did not tell him the usual limitation period for employees’ compensation claim is 24 months from the date of the Accident or the date of knowledge of the cause of action. I agreed that the applicant’s ignorance to the time limit is not a defence.

16.  According to the applicant’s medical records, his main complaints were low back pain that radiated down his lower limb, with numbness in lower limbs.

17.  On or about 17 October 2013, the applicant had made a written complaint to the respondent concerning his low back pain that:

“… Starting from August 2011, I suffered back pain and is has been almost 2 years now.  This sickness is work related and it was incurred after replacement of office chair.  I was not informed any functions and settings of the new chair at that moment.  This sickness is the spinal disc L4/L5 protrusion and in return suppression of nerve root leading to serious pain and numbness of lower body part.  Daily activities became difficult. … For back pain I am still suffering, please complete the ‘Work-Related Accident/ Incident Report’ I had submitted on 1 March 2013.  Meeting had been held with management with physiotherapy recommendation and subsequent meeting HR colleagues for OSHM. …” [HB56].

18.  On 7 August 2014, the respondent replied that:

“  I refer to your letter dated 18 March 2014 and 11 July 2014 in relation to your alleged work-related back pain.

  Investigations have already been carried out in 2013 upon receipt of your report of back pain.  We have also reviewed all your previous reports to the Club and your report to Labour Department dated 19 December 2013.  Since there is no indication from our investigation and your reports that the alleged back pain was caused by an accident arising out of and in the course of employment and your alleged condition is not a prescribed occupational disease under (ECO), the (respondent) considered at the time and maintains its view that there has been no accident or occupational disease to which the (respondent) is obliged to report to the Labour Department in December 2013 and the (respondent) has not been requested by the Labour Department to submit a report under the ECO to date. …” [HB61]

19.  A similar reply was made on 10 October 2014. [HB62]

20.  Both parties agreed at the hearing that the investigations were inspired by the applicant’s letter dated on or about 17 October 2013 [HB56], hence the respondent mentioned, “Investigations have already been carried out in 2013 upon receipt of your report of back pain. …”

21.  From those letters, I draw the conclusion that: (1) the applicant had launched a detailed formal complaint to the respondent’s Human Resources Department on or about 17 October 2013; (2) the respondent had carried out investigations in 2013; (3) there were other letters transpired between the parties concerning the Accident; (4) after the investigations, the respondent found that the applicant did not have a case under ECO; (5) the respondent was not obliged to report the case to the Labour Department.

22.  On one hand, when the first letter was issued on 7 August 2014, the limitation period of 24 months had lapsed; however, it is also noted that those letters support the applicant’s allegation that he had kept on discussing with the respondent about the Accident; and the respondent had never given the applicant a constructive reply.   

23.  Accordingly, I do conclude that the applicant’s failure to meet the prescribed limitation period was induced by the conduct of the respondent.

The length of the delay

24.  According to the applicant, the date of the Accident was 26 August 2011 and on 12 November 2011, Dr Kan informed him the cause of action.  The limitation period has expired on 25 August 2013 and the applicant filed the Application on 22 October 2014; so the application is out of time for about 14 months.

25.  According to Dr Kan, the Applicant’s low back pain was caused by his inappropriate sitting posture [HB66]. The MRI report shows there is moderate grade circumferential disc bulge at the applicant’s L4/5 level; a broad-based protruded portion of the disc is causing severe impingement and displacement of right L5 transit and adjacent nerve roots [HB70].

26.  In many other employees’ compensation cases, the accidents and the causes of injury can easily be identified, like when traffic or industrial accidents are involved.  However, in this case, the cause of the injury is not so obvious.  Dr Kan was in the opinion that the applicant’s condition was caused by inappropriate sitting posture; but he did not mention if it was caused by the applicant’s working posture or from his daily activities.

27.  I am of the view that such length of delay is acceptable, particularly when the nature of the applicant’s complaint is considered.

28.  I conclude that the applicant was not sleeping on his case and that the delay for 14 months is not unreasonable and unacceptable.

Sufficient ground to support the Application

29.  According to section 5(1) of the ECO, “… if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”

30.  The respondent argues that the applicant’s case does not amount to an “accident” under the definition of the ECO.

31.  In Fenton v J Thorley & Co Ltd [1903] AC 443, at page 448, Lord Macnaghten, after reviewing the authorities, had made the following conclusion on the meaning of “injury by accident”:

“I come, therefore, to the conclusion that the expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.”

32.  The applicant’s condition may be caused jointly by the combination of various factors, such as the applicant’s working condition, the system of work, his own sitting posture and the chairs provided by the respondent.  The New Chair may only serve as the last straw to hurt the applicant or simply accelerate the degeneration of his back.  In any event, I do find the Accident amounts to “an unlooked for mishap or an untoward event which is not expected or designed” by the applicant.

33.  I am satisfied that the applicant’s case amounts to an accident under section 5(1) of the ECO.

Prejudice to the respondent

34.  On or about 17 October 2013, the applicant formally informed the respondent [HB56], which is less than 2 months beyond the limitation period of 24 months. The respondent’s replies on 7 August 2014 and 10 October 2014 confirmed that the respondent had carried out investigations in 2013 [HB61 & 62].  In this regard, I am not persuaded that the respondent had suffered any prejudice.

No reasonable cause of action or abuse of process

35.  As I confirm that the applicant’s case amounts to an “accident” according to section 5(1) of the ECO, I accordingly come to the conclusion that the applicant has disclosed a reasonable cause of action, which does not amount to an abuse of process.

Conclusion

36.  As explained, after considering all the relevant factors and attaching various weight on them according to the particular factual matrix of this case; on the whole, I hereby exercise my discretion to allow the applicant to continue his case and dismiss the respondent’s summons.

37.  I will grant certificate for counsel for both parties.  The usual practice is costs follows event. However, I do consider despite the court grants the applicant a favor, he is not entirely blameless.  Had he acted more swiftly, the court would not be required to exercise its discretion. There will be acosts order nisithat each party shall bear his own costs.  The costs order nisi shall become absolute after 14 days hereof unless a party has applied to the court for varying the same.

38.  I thank for both parties’ assistance.