XCHRX Kwok Chi Yip v. Wan Kei Geotechnical Engineering Co. Ltd. and Another

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 180 OF 2001

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J U D G M E N T

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1. I have before me a summons taken out under section 14(4) of the Employees' Compensation Ordinance, Cap. 282 ("the Ordinance") whereby the applicant, Mr Kwok Chi-yip, is applying to the court to receive and determine his application for compensation, notwithstanding that more than two years have expired since the date of the accident which gives rise to his claim, this being the limitation period provided for in section 14(1) of the Ordinance.

2. Mr Ip, who appears for the applicant, says that he is making this application out of an abundance of caution because whilst there is no doubt that the two year limitation period has expired, Mr Ip submits that the applicant is not in fact making an application under section 18A which is governed by the limitation period, but that his client's application is one under section 18 of the Ordinance in the form of an appeal to this court against the Certificate of Review of Assessment dated 28 December 2000. Section 18 provides for a six month period in which to appeal and this appeal by the applicant is one which has been brought in time.

3. Mr Ip relies in particular on the decision of the Court of Appeal in Chung Lung-shun v Adams Parking International Limited [1996] 1 HKLR 49, to which I must make fuller reference in a moment. Before I do so, it is helpful to set out the chronology of the matter which will assist in understanding the substance of the application and which will determine whether this is a section 18A case or one under section 18.

4. The applicant was injured on 15 June 1996 whilst working at a building site during the course of his employment with the respondents. He sustained head and neck injuries and was treated at the Tang Shiu Kin Hospital. He was discharged on the same day and given four days sick leave. On 20 June, he was seen again at the same hospital when a further two days were allowed and he was signed-off by the hospital who gave him no further appointments.

5. On 22 June, he saw a private physician, Doctor Gary Chung, who certified five more days of sick leave.

6. On 27 June, he resumed his employment. Following his resumption of work, he continued to suffer from persistent neck and shoulder pain and consulted a bonesetter and a practitioner of traditional Chinese medicine.

7. In the meantime, the respondents had filed the statutory Form 2 with the Labour Department who arranged for the applicant to be assessed by the Employees' Compensation (Ordinary Assessment) Board and who on 18 October 1996 assessed loss of earning capacity at a modest 1 per cent.

8. On 4 November 1996, the Commissioner for Labour issued a Certificate of Compensation Assessment based on the Board's opinion in the sum of $21,826.67 which has been paid to the applicant by the respondents, this amount having been accepted by the applicant without objection. He says he did so because he was unaware of his legal rights, nor was he aware of the true extent of his medical condition.

9. Due to the persistent pain, he was referred to the Orthopaedic Department of the Prince of Wales Hospital by his private doctor, Doctor Chow Heung-wing. The waiting list at the Prince of Wales was such that his first consultation was in April 1998. He was X-rayed and given physiotherapy. He says that no diagnosis was made by the hospital. He asked for a further X-ray examination but this was declined.

10. Due to the fact that the pain persisted, in November 1998 he privately consulted a specialist, Doctor Lam Yuk-yee, at Saint Teresa's Hospital. Doctor Lam diagnosed an old fracture and subluxation at C1 and C2. He recommended an operation which would cost $150,000. As the applicant could not afford this, Doctor Lam referred him to the Government Yan Chai Hospital. He obtained the earliest appointment that he could which was in April 1999. On 4 May 1999, he was operated on, which consisted of an internal fixation and a posterior fusion at C1/C2. He was discharged home on 12 May 1999.

11. Going back in time I should observe that in March 1997 the applicant left his employment because he could not perform his physical tasks, having regard to the pain and numbness of his right hand. Since then, he has remained unemployed and in receipt of Comprehensive Social Security Assistance.

12. On 23 September 1998, he made his first application for Legal Aid. This was refused because at this time, having regard to the modest 1 per cent assessment, his injury was considered too minor to justify the grant of Legal Aid. A second refusal followed on 19 November, although on this occasion he brought with him the X-rays from Saint Teresa's Hospital.

13. On 23 November 1998, he sought the assistance of his local District Councillor who referred the matter to the Labour Department for further investigation.

14. On 31 October 1999, there was a further review by the Review Assessment Board who had before them the diagnosis from Saint Teresa's and the diagnosis and operation results from Yan Chai Hospital. On 28 December, the Review Board increased the percentage loss of earning capacity to 7 per cent. The applicant was dissatisfied with that increase and the Labour Department referred the case to the Legal Aid Department who on 7 February of this year granted the applicant Legal Aid.

15. On 26 February, he saw his solicitors who filed this application with the court on 12 March, well inside the six month period provided for appeals under section 18.

16. From that factual background and timetable, Mr Ip submits that this is not an application for the court to determine a claim for compensation under section 18A to which the section 14(1) time limit applies, but is in the nature of an appeal from a decision of a Review Assessment Board which, as I have already indicated, is not time-barred.

17. In Chung Lung-shun v Adams Parking International Limited supra, Godfrey JA analysed the scheme for compensating an injured workman which operates under the Employees' Compensation Ordinance. Liu JA very graphically described the statutory framework as providing "two routes, one regime". As one might expect, the facts and timescale in Chung Lung-shun v Adams Parking International Limited do vary somewhat from the facts that I have related, in particular that the applicant in that matter had been able to move with more despatch than the applicant in the matter before me.

18. It is important to have regard to the fact that in this matter, as long ago as 18 October 1996, the Employees' Compensation (Ordinary Assessment) Board assessed the loss of earning capacity at 1 per cent and that the Certificate of Assessment was issued on 14 November 1996 and that the applicant accepted the amount in the Certificate. The regime for such assessments is provided for under various parts of section 16 of the Ordinance. Under section 16G(1), an objection to an assessment may be made by either employer or employee within 14 days of the issue of the Certificate. Clearly, there was no such objection forthcoming, hence the issue of the Certificate of Compensation at the time.

19. What may be considered a little unusual here is that the matter was re-opened three years later by a review of the October 1996 assessment when the Commissioner for Labour, having had the matter referred to him by the District Councillor on 15 December 1998, referred the matter back to the Review Assessment Board. This the Commissioner did by exercising his power to do so, which is also contained in section 16G(1) whereby the Commissioner may do so "within a further time that the Commissioner in the circumstances of any particular case thinks fit." No doubt the Commissioner was persuaded to do so, having regard to the medical evidence then available to him from Saint Teresa's and from Yan Chai. What then followed was an upward review to 7 per cent, from which there is now a timely appeal to this court under section 18.

20. I am satisfied that this analysis by Mr Ip is correct. The matter comes to court under section 18 and not under section 18A. This is an appeal as of right which I propose to hear and determine in due course. Accordingly, the application under section 14(1) is unnecessary and indeed inappropriate and so I propose to make no order on the summons.

21. In the event of an appeal from this judgment, I propose to go on and express my view had the matter required a decision under section 14(4). A court may receive and determine an application which is made after the expiry of the two year limitation period if there is reasonable excuse for the failure to make the application in time. This would have been a stale application. It was made two years and nine months out of time. The limitation period expired on 15 June 1998.

22. The applicant had by then accepted the payment under the Certificate of Assessment which he did in November 1996. He had by then been unemployed and in receipt of Social Security payments for about 15 months since March 1997. He first went to the Legal Aid Department in September 1998, three months after the expiry of the limitation period. By April 1998, he had been treated by the Prince of Wales Hospital and drawn a blank from them. Thereafter, his attention was perfectly understandably focussed on getting appropriate treatment and in November 1998, following his consultation at Saint Teresa's, he became aware of the true cause of his problems and went to the Legal Aid Department again but met with a refusal.

23. It seems to me that by then he should have made any application to the court under section 18A. In the event, the court was not approached for a further two years and three months. The application under section 14(4) is put on the basis of the applicant's ignorance of his legal rights and of a true diagnosis of his medical situation. As to the latter, he had a proper diagnosis from Doctor Lam at Saint Teresa's in November 1998, so that point goes as from that date.

24. As to ignorance of his legal rights, it is very much settled law in such applications that ignorance of this sort will not amount to a reasonable excuse. The proceedings are frequently brought by unrepresented persons. The court staff will assist in drafting the application itself, as will more often staff at the Labour Department with whom he had already been in touch as early as October 1996. I am firmly of the view that if I were determining a section 14(4) application, I would have refused to receive the application for compensation. In my view, this would have been an application that could and should have been brought no later than December 1998, six months out of time, by which time the applicant was well aware of his medical circumstances. He, in fact, has come to court 27 months after that day and 33 months after the expiry of the limitation period. I would have found no reasonable excuse for such delay, but this is entirely hypothetical where I have found this application to be in the nature of an appeal where different procedures and time limits apply.

25. Mr Ip, as I have found this to be in the nature of a section 18A appeal, the matter can proceed and as I have already indicated in the course of my judgment, it is inappropriate for me to make any order on the summons that you have taken out, a summons which you have taken out of an abundance of caution. So the order is no order on the summons.

(Submission re costs)

26. Costs in the cause with Legal Aid taxation of the applicant's costs.

27. Leave for the respondent to file with court and serve on the applicant an answer within 21 days from the date hereof and list of earnings, 21 days.

28. Adjourned sine die with liberty to restore.

29. Costs in the cause, Legal Aid taxation.

(Submission)

30. The argument in respect of the summons is also costs in the cause - both.