CHEUK CHOI HUNG v. TUNG WAH GROUP OF HOSPITALS

DCEC 2403/2018

[2020] HKDC 372

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2403 OF 2018

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D E C I S I O N

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A. THE SUMMONSES

1.  After these proceedings were ordered to be set down for assessment of compensation on 3 December 2019 with one day reserved in the running list (not to be warned before 10 February 2020), the applicant filed:-

(1)  On 15 January 2020, a Notice of Appeal (“Late Notice”) against the certificate of assessment (“Form 7”) issued by the Employees’ Compensation (Ordinary Assessment) Board (“MAB”) out of time.  The applicant’s intended appeal is only in respect of the periods of sick leave under s.10(2), Employees’ Compensation Ordinance (“ECO”);

(2)  On 21 January 2020, a summons for leave to vacate the hearing for assessment of compensation and adjourn the proceedings sine dine with liberty to restore (“Adjournment Summons”) and;

(3)  On 17 March 2020, a summons for leave to appeal against the Form 7 out of time (“Appeal Summons”).

2.  As it became apparent that the outcome of the Adjournment Summons would depend on the determination of the Appeal Summons, this court ordered the disposal of both of these summonses together on paper.  Since the Adjournment Summons will stand and fall with the Appeal Summons, I only need to confine my discussion in this Decision to the Appeal Summons.

B.  AFFIRMATIONS AND SUBMISSIONS

3.  No affidavit evidence was filed in respect of the Adjournment Summons.  A supporting affirmation of the applicant and an affidavit of Lou Eileen (the respondent’s solicitor) in opposition to the Appeal Summons were filed.

4.  The submissions of the applicant’s Legal Aid assigned solicitor, Mr Ng Kin Wah of Messrs Kevin Ng & Co (“KNC”), and the respondent’s counsel, Mr Leon Ho, were lodged.

C.  DISCUSSION: APPEAL SUMMONS

5.  The Form 7 was issued on 21 June 2018.  The 6 months’ time limit prescribed by s.18(2) of ECO therefore expired on 21 December 2018.  Hence, the Late Notice is late by 1 year and 25 days.

6.  In deciding whether I should exercise my discretion to extend time to appeal, I will take into account all relevant factors such as: (i) the length of delay; (ii) the reason for the delay; (iii) prejudice to the other party if the extension is granted; (iv) merits of the application to decide whether the overall justice requires an extension of time; and (v) the health condition of an 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 was because of his illness.  However, ignorance of the law is not, generally speaking, a reasonable excuse for delay: Chung Sau Ling v Million Join Ltd[1], Li Zhuoman v Easy-Access Transport.[2]

7.  After having carefully taken into account of all the relevant factors in this case, I decline to exercise my discretion to extend time for the Late Notice.  My reasons are as follows.

8.  First, the applicant has failed to provide a reasonable excuse for the delay. 

9.  When the Form 7 was issued on 21 June 2018, the applicant stated that she “intended to rely on Form 7 for the Court to determine my claim of, inter alia … period of temporary incapacity with sick leave certificates in support” (see the applicant’s supporting affirmation at [7]).  Hence, she agreed with the sick leave periods (a total of 12 months and 5 days) stated in the Form 7: (i) 19 to 29 March 2017; (ii) 1 day on 31 March 2017; and (iii) 3 April 2017 to 26 March 2018. In other words, she accepted the MAB’s assessment that her sick leave ended after 26 March 2018. 

10.  The applicant maintained the same agreement stance in the Form 7 for most of the proceedings notwithstanding that the applicant was still provided with sick leave certificates after 26 March 2018 up till 13 February 2020 for right knee pain, lower back pain, and right shoulder pain:  see the bundle of medical certificates exhibited at “CCH-2” to the supporting affirmation.

11.  The applicant, from the commencement of the proceedings in October 2018 to the order to set down, repeatedly (through KNC) represented to the respondent that she agreed with the assessment in Form 7.

12.  For instance, shortly after the entry of the interlocutory judgment on 19 November 2018, the respondent’s solicitors, Deacons, as early as January 2019, requested KNC to give their consent to the appointment of an orthopaedic expert to conduct a joint examination of the applicant.  KNC rejected Deacons’ suggestion for the reason that the applicant had not appealed against the assessment in Form 7, and therefore no medical examination was needed.

13.  Later on 27 November 2019, KNC repeated the same representation in the completed Appendix “D” jointly signed by KNC and Deacons that the applicant would not appeal against the Form 7 assessment.  Based on the said information disclosed in the said Appendix “D”, the court granted the parties’ joint application to set this case down for the assessment of quantum. 

14.  I find it most puzzling that it was only after the court on 3 December 2019 ordered the setting down of this case that the applicant allegedly became aware that she could, allegedly upon legal advice, make a claim for an additional two years’ sick leave payments.  Neither do I find her explanation for the lateness on the alleged uncertainty of the duration of her sick leave reasonable.  Given the fact she was legally represented throughout, and that she was issued sick leave certificates for the past 2 years, I find the applicant’s explanation hollow.

15.  For the same reason, I also reject Mr Ng’s submission that the applicant’s sick leave was only crystalized on 16 March 2020 as it is not supported by evidence.

16.  Since it is the applicant’s assertion that she had since 19 March 2017 continuously suffered from pain in the shoulders, neck and lower back and required medical treatment, I am unable to accept Mr Ng’s submission that the applicant was not fully aware of the extent of her injury.

17.  It is trite that ignorance of the law cannot be a valid excuse.  As the applicant was legally represented throughout, the applicant could not attribute her delay to her ignorance of the law.  Neither can it be said that her legal advisers were ignorant.  As a matter of fact, the correspondence exchanges between KNC and Deacons exhibited to the opposing affidavit between January to August 2019 show that KNC was actively engaging in clarification discussions on the amount of advanced payments having been made to the applicant.  It is therefore patently clear that KNC had more than sufficient opportunity to take instructions from the applicant on the question of appeal against the Form 7 assessment.

18.  Given the fact that the Late Notice was filed at such a late stage of the proceedings, the applicant shall be required to provide a cogent explanation.  However, the totality of the evidence shows that the excuse is wholly devoid of credibility.  

19.  In the circumstances, I am not satisfied that the applicant has given a reasonable excuse.

20.  Second, the applicant has not filed any evidence showing merits of the intended appeal.

21.  Apart from the submission by Mr Ng that had the applicant not been able to appeal against the Form 7 out of time, she would be deprived of the compensation for the almost two years’ further sick leave in addition to the sick leave assessed by the MAB, the applicant adduced no evidence to show that she had merits in her intended appeal.

22.  Section 10(2), ECO, provides a rebuttable presumption for medical certificates.  When the MAB assessed the applicant on 28 May 2018 and 7 June 2018, it would have received all the applicant’s sick leave certificates up till around 7 June 2018.  It is however observed that the applicant was only assessed sick leave entitlement up till 26 March 2018.  Thus, the applicant’s sick leave after that day will likely be challenged as being unrelated to her injury (as Mr Ho contended in his skeleton argument).  In the circumstances, in the absence of any supporting medical evidence, such as medical reports from her treating doctors, I am not satisfied that the applicant’s intended appeal has merits.   

23.  Third, the respondent will suffer prejudice.

24.  I do not accept the applicant’s bare assertion that since the respondent was aware of her continuing sick leave, it will suffer no prejudice.

25.  The discussion in [12] and [13] above shows that the respondent has been conducting the case throughout on the applicant’s representation that she would not be appealing against the assessment in the Form 7. 

26.  Were the applicant granted leave to appeal out of time, an orthopaedic expert might likely be needed (as already evidenced by the respondent’s request in January 2019, see [12] above).  However, any medical examination of the applicant at such a late stage is unlikely to serve much purpose.  This is because a long lapse of time will likely, as Mr Ho has correctly observed, deprive the respondent of the opportunity to gather evidence of the applicant’s earlier medical condition so as to comment on or counter the applicant’s medical evidence.  I am thus in agreement with Mr Ho’s submission that the delay would cause prejudice to the respondent on the ground that the weight and usefulness of the respondent’s appointed medical expert evidence will be adversely affected after a long lapse of time[3].

27.  It has been more than 3 years since the accident.  I am satisfied that the respondent will be prejudiced by reason of the loss of opportunity to examine the applicant sooner.

D.    CONCLUSION AND ORDER

28.  For the foregoing reasons, I dismiss the Appeal Summons.  It follows that the Adjournment Summons should also be dismissed, and I so order.

29.  I grant the following order:-

(1)  The Adjournment Summons and the Appeal Summons are dismissed.

(2)  There be a costs order nisi that the costs of the two summonses are to be paid by the applicant to the respondent, to be taxed if not agreed. (For the avoidance of doubt, I decline to grant certificate for counsel.)

(3)  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

(4)  The costs order nisi shall stand absolute unless an application is made to vary it within 14 days of the handing down of this Decision.