GINA LOUISE PORTER v. THE HONG KONG JOCKEY CLUB

DCEC1211/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1211 OF 2007

----------------------

----------------------

----------------------

D E C I S I O N

----------------------

1.  The applicant applies to amend the statement of claim to include an appeal against the Certificate of Assessment out of time.  The respondent does not object to the application to amend but opposes the application for leave to appeal the Certificate of Assessment out of time.

2.  The hearing today is to decide, as a preliminary issue, whether the applicant should have leave to appeal the Certificate of Assessment out of time.  Of course, whether the applicant will succeed, if allowed to amend by inserting the appeal, would be an issue for the trial judge.

3.  The application for leave to appeal against the Certificate of Assessment is within six months of the issue of the Certificate of Assessment under the section 18 of the Employees' Compensation Ordinance, Cap.282 Sections 18(1) and (2) provide that:

“S. 18(1) Subject to this section an appeal shall lie to the District Court from any decision of assessment of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board under section 16A, 16D, 16G, 16E or section GA.

(2) no appeal shall lie after the expiry of six months from the date of the decision in the case of an assessment of the date of issue of the relevant certificate under sections 16A, 16F, 16G or 16GA, as the case may be, provided that the court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that the time has elapsed.”

4.  I am grateful to Mr Brettell and Mr Wong for identifying the issue in the application.  They have agreed that the case of Chung Sau Ling v Million Join Limited [2003] HKC 561 is the binding authority in the aspect of which this application hinges.

5.  The Court of Appeal in the Chung Sau Ling case laid down the criteria where the court, exercising its discretion, should consider under an application of section 18 of the ordinance.  In paragraph 16 on page 564 of the Chung Sau Ling case, Cheung JA held:

“The proviso to section 18(2) enables the court, if it thinks fit, to extend the time of appeal.  In order to enable the court to exercise its discretion it has to be provided with all relevant factors, including the length of delay, the reason for the delay and the prejudice to the other party if the extension is granted and the merits of the application as well.”

6.  In paragraph 17 of his judgment, Cheung JA referred to the case of Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115.  He went on to say:

“This court in Chan Kit v Sam Wo Industrial Manufactory has clearly stated that the nature of a section 18 appeal is by way of a re-hearing.  This, however, does not mean that the respondent is not required to explain the delay, particularly a delay as long as two years.  This, together with the other factors that I have stated ,will enable the court to decide whether the overall justice of the case requires an extension of time to appeal to be granted.

The point to note is that the court will not go into detailed arguments on these various factors but for a start, the party applying for an extension of time must present these matters for the court’s consideration.  Insofar as Yung King held an explanation for the delay is not necessary, then it is wrong.”

Background

7.  The applicant, who was an employed instructor at the respondent’s Riding School at Beas River, had an accident during a show jumping event on 10 October 2004.  She fell from the horse and sustained serious head injury and other injuries to her person.  She was admitted to the Queen Elizabeth Hospital and remained there for treatments until she was transferred to the Canossa Hospital on 27 October 2004.  She was discharged home on 19 November 2004, she continued to receive outpatient treatments at Canossa Hospital.

8.  In April 2005 she was referred to the Maclehose Medical Rehabilitation Centre (hereinafter referred to as “the MRC”), for further rehabilitation.  She was granted sick leave up to 3 January 2005.

9.  It is not disputed that she failed to approach the Occupational Medical Unit for sick leave clearance in spite of repeated notices from the Labour Department.  Apparently, it is important for the purposes of establishing and assessing her injuries for the purposes of the Ordinance  to seek sick leave clearance from the Labour Department and this usually takes place after the completion of treatments.

10.  The medical report of Dr Li at the MRC dated 21 June 2007 revealed that the applicant was found on first examination to have “persistent unsteady gait and poor concentration to cope with daily activities and work after discharge”.  I assume the “discharge” meant discharge from QEH and the Canossa Hospital.  Dr Li’s team at the MRC then prescribed and started the applicant on an intensive programme involving physical training, cognitive assessment with a final goal of return to her previous vocation.

11.  The assessment done by the MRC on  4 July 2005 showed an improvement in her processing speed from borderline to average range.  However, her sustained attention remained severely impaired.  As a result, she was allowed to return to work gradually and she was told to avoid a tight schedule.

12.  With the co-operation and accommodation of the respondent, the applicant did return to work gradually and eventually, in the latter part of 2005, she returned to full-time work with further accommodations made in her working conditions due to her cognitive deficits by the respondent.  In short, the respondent had made arrangements in the applicant’s duties to accommodate her after her return to work.

13.  On 20 September 2006, she was examined by the Medical Assessment Board and on 4 October 2006, the Medical Assessment Board issued a Certificate of Assessment (Form 7) and assessed the loss of the applicant’s permanent earning capacity to be 1 per cent.  She did not seek a review of the assessment.

14.  In November 2006, she was promoted to the position of Chief Riding Instructor in the Equestrian Affairs Department of the respondent.

15.  In December 2006, she was paid, and accepted, $15,120 for the loss of permanent earning capacity based on 1 per cent assessment.

16.  In mid-June 2007, her employment was terminated by the respondent.

17.  In October 2007, the applicant issued the present proceedings and on 8 November 2007, the applicant made the present application to amend the application by inserting an application for leave to appeal against the Certificate of Assessment.

Delay

18.  The period of delay from the date of the expiry of six months since the date of issue of the Certificate of Assessment on 4 October 2006 commenced on 3 April 2007.

19.  As her application was lodged under the Employees’ Compensation Ordinance on 4 October 2007, one can assume the delay was six months because in the original application she did ask for the cancellation of Certificate of Compensation Assessment and she did ask for an extension of time to appeal against the assessment of the Ordinary Assessment Board dated 4 October 2006 under sections 18(1) and (2) of the Ordinance.  Therefore, the intention of her disagreement with the assessment of the MAB was made clear on the date of the issue of the application on 4 October 2007.

20.  Mr Brettell, for the applicant, has referred to the applicant’s affidavit with numerous exhibits to show that the respondent had been put on notice of the medical conditions and the applicant’s dissatisfaction of the termination of her employment as early as 29 June 2006.  This was under a letter from the applicant’s solicitor dated 29 June 2006 which was within a couple of weeks of her dismissal.

21.  After her dismissal, the applicant obtained medical reports on her condition, notably, a medical report of Dr Leonard Li of the MRC dated 21 June 2007, and the evidence that she had gone back to the MRC for psychological treatments since May or June 2007.  The medical records and reports showed that the applicant suffered from depressed moods and loss of memory and she had concentration difficulties.

22.  The tests done at the MRC in July 2007 compared to the May 2005 tests showed a deterioration in her condition, though after two months of treatments, her condition had indeed improved to be comparable to the test results of May 2005.  This, in itself, indicated that she did require psychological and other treatments in May and June 2007.

23.  I am satisfied that as the applicant had wanted to and was eager to return to work for the respondent, for the reasons given by her in her affidavit and as her performance was constantly under review due to the annual appraisal report and also because she was given a promotion in November 2006 within one month of the assessment of the MAB, it is understandable for her not to apply for a review of the MAB assessment or to lodge an appeal of the assessment.

24.  However, in May 2007, she did realise that there was a problem with her and she began to associate it with the head injury, even though she thought she could cope with her work with accommodations offered her by the respondent.  This was supported by her note to Ruby of the MRC seeking help from her.

25.  Before the applicant was able to recover from the further treatments, her contract was terminated in June 2007 and this, obviously, has a bearing on her lodging the employee’s compensation claim and her appealing the MAB assessment, not only because she lost her job but her future earning capacity has then become an issue which hitherto was not a problem as she was able to return to her former job with the respondent during this period of time.

26.  I am satisfied that the applicant has shown sufficient grounds for the delay.  Furthermore, the delay was a period of six months which cannot be described as inordinate and that in the letter of 29 June 2007 she had, through her solicitors, put the respondent on notice.

Merits of the Application 

27.  The numerous medical reports and records produced by the applicant have shown that there are good reasons for her delayed application, in particular, Dr Li’s report and the tests done in July 2007 when compared to those done in May 2005 clearly indicated a deterioration rather than an improvement of her condition in spite of the lapse of time.

Prejudice to the Respondent

28.  I am not convinced that the respondent suffered from any prejudice by the delay.  Mr Wong, acting for the respondent, submitted that the respondent was not able to obtain an independent medical report on the applicant at the appropriate time - I suppose that means the time of the accident or in the interim period up to the expiry of the six months - for lodging an appeal against the assessment of the MAB.

29.  It is obvious the decision of obtaining an independent expert report lies on the respondent.  The respondent could have obtained an independent report even without the institution of an employee’s compensation claim or a personal injuries claim from the applicant.  Surely, the respondent does not need an invitation from the applicant.

30.  The respondent is a large institution employing a large number of staff and is experienced in such matters involving industrial injuries and accidents.  If the respondent disagreed with the diagnosis and treatments by the applicant’s doctors or the respondent was suspicious of the medical reports obtained by the applicant, the respondent could have obtained an independent expert report before the applicant was dismissed or in July 2007 after receiving the applicant’s solicitor’s letter of 29 June 2007, but the respondent chose not to do so.

31.  Furthermore, there is nothing to stop the respondent in obtaining an expert medical report now.  After all, the delay in the applicant’s lodging an appeal against the assessment of the Medical Assessment Board was only six months.  The expiry date was April 2007.  They were informed by letter of the applicant’s dissatisfaction on 29 June 2007.  They received the application of these proceedings in early October 2007 and up to now there is only a nine months’ gap.

32.  I find there is little or no prejudice to the respondent in granting leave to the applicant to appeal against the assessment out of time.  Therefore, I allow the application and I would order costs in the cause.

Directions

(1)  There be leave to the respondent to file an answer within 28 days from the date hereof.

(2)  The respondent do file a list of earnings of the applicant for the 12 month period prior to the accident within 28 days from the date hereof.

(3) There be mutual discovery and inspection of documents within 42 days hereof and a list of documents to be filed within 42 days hereof.

(4)  The parties to file witness statements as to facts within four months hereof.

(5)  The parties to file a joint medical report within four months from the date hereof.

(6)  There be a further directions hearing within four months from today.

(7)    Liberty to apply.

(8)    Costs in the cause.