SZE LAI MAN v. THE WING ON DEPARTMENT STORES (HONG KONG) LTD.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

EMPLOYEES COMPENSATION CASE NO. 343 OF 1994

IN THE MATTER OF AN APPLICATION BETWEEN:

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D E C I S I O N

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On 1st June 1994, the Applicant filed an application for compensation for injury suffered in an accident arising out of and in the course of employment a year ago, on 5th June 1993. The case was set down for trial on 29th February 1996. Shortly before that, the Applicant filed a summons to amend the Application. The effect of the amendment was to introduce a new cause of action based on an accident which allegedly occurred in early May 1993 and that the injury arising from that accident was aggravated as a result of a series of accidents including the one on 5th June 1993. That summons was heard two days before the scheduled trial date and was dismissed by H.H. Judge Kwan. Having obtained instruction from the Director of Legal Aid to appeal against Judge Kwan's decision, a signed notice of appeal was sent to the Respondent but the Applicant did not prosecute her appeal.

2. The Applicant now seeks leave to amend her application before me. Albeit the amendment sought is worded differently and refers only to two accidents, namely in May and June 1993 instead of a series of accidents, the substance and effect of the amendment is the same as that requested in the previous application.

3. Counsel for the Respondent argued that the issue had been determined before H.H. Judge Kwan in February this year and is estopped from raising it again and alternatively, it is an abuse of process to raise such issue now. I take the view that the present application is in substance and effect the same as the one previously before H.H. Judge Kwan. It would have been appropriate for the Applicant to have pursued an appeal instead of renewing her application before another tribunal.

4. Mr. Lin on behalf of the Applicant argued that there has been a change in circumstances in that the Applicant was prominently affected by her psychiatric illness which required the hearing to be subsequently postponed. I am unable to find how the Applicant's illness then could amount to such a change of circumstances now as to justify renewing her application today. As a matter of fact, the question of her mental disability had been placed before the learned judge via the Applicant's second statement made shortly before that hearing. Even accepting that she was then unfit to stand trial, it remains clear that she had the mental ability to give instructions to her solicitors well before the hearing that she had another accident in May 1993. Her mental condition would have been relevant if it was such as to prevent her from instructing her solicitor about the May accident. But that was not the case. In any event, if her illness was at all relevant, it should have been raised at the previous hearing.

5. Having said that, I must add that H.H. Judge Kwan did not give any written judgment or reasons for her decision. Apart from the end result that the application for amendment was refused, it was not clear what were the issues decided upon. Two matters which weighed heavily on my mind. Firstly, the application was made two days before the schedule hearing. It is not unusual that despite the presence of merit, the court would disallow an application for amendment where it would cause the trial dates to be vacated or put at risk as in Re anka Muditha", [1994] 1 HKLR 71. Secondly, the application was not supported by any affidavit. It is impossible for me to determine what issues has been decided upon at the last hearing.

6. I also bear in mind what Kempster JA said in Lily Cheung v. Standard Chartered Bank, [1988] 1 HKLR 613 that insofar as the doctrine of issue estoppel per rem judicatam is regarded in its narrow sense it is ...... applicable only to final judgments and orders of a competent tribunal, domestic or foreign, and not to those which, like that of Deputy Judge Cruden where absence of finality appears on the fact of the record, can be varied, re-opened or set aside by the same, as contrasted with an appellate, tribunal: The Senar (No. 2), [1985] 1 WLR 490 Having regard to the above, I am unable to find what were the issues decided upon at the previous hearing and what issues the Applicant are estopped from arguing before me. Justice would have required me to find that issue estoppel does not apply.

7. Mr. Lin argued that I have unfettered discretion to allow amendment under Rule 17(3) of Employees Compensation (Rules of Court) Rules. He referred me to Cropper v. Smith, [1883] 26 Ch. D. in which Bowen, L.J. said:

"It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights ...... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ...... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right."

I entirely agreed with the principle cited by Lord Justice Bowen.

8. Counsel for the Respondent argued that the effect of the amendment is not just to rectify a mistake or error but to introduce an additional claim for an earlier accident the injury of which was allegedly aggravated by the present accident. The Respondent has never had notice of that earlier accident which happened four years ago and the application for injury arising out of such an accident is out of time. To allow an amendment with these consequences must result in some prejudice to the Respondent in the face of a claim for no fault liability as the Respondent witnesses are no longer available. However, Mr. Lin argued that there must be a casual link between the prejudice and the delay caused by the Applicant. He submitted that the delay complained of and relied upon must relate to the time which the Applicant allowed to lapse after the expiry of the 24 months period. He argued, in my view quite rightly and forcefully, that the witnesses purportedly relied upon by the Respondent were in any event unlocated despite notice had been given in September 1993 in respect of the June accident. The Respondent has taken no steps to preserve these witnesses after having had notice of the June accident. If any prejudice has been caused, it was not attributable to the delay of the Applicant.

9. Further, in Attorney General v. West Ham Corp., [1910] 74 J.P. 196, C.A., the court allowed a new claim which is so germane to, and so connected with, the original cause of action, that it would be a denial of justice if leave to add it were refused. Here on the proposed amendment, the Applicant intends not only to add a claim in respect of an earlier accident but says that the injury as a result of that accident has been aggravated by the accident which is now properly before the court. The new claim is so germane to and connected with the original claim that it would be a denial of justice to shut the Applicant out from litigating on that subject matter.

10. In addition, I have now before the medical report of Dr. Singer in which the doctor made the following comments:

"Subject has been inconsistent in her statements in regard to the exact date of the accident. Such inconsistency is likely to be accounted for by the difficulty of remembering the exact date of an event which was not very obvious (she fell only a loosening sensation at the time, pain at the site occurring a few days later), and by her Depressive illness which has affected her cognitive functions including memory."

I also note from the report that a social worker had referred the Applicant to a psychiatrist in August 1994, a year after the alleged accident and that she was suffering from some delusion in July 1995. Obviously there are some evidence in which I could find that she was suffering from some form of mental disability which might result in her being mistaken about the date of the accident or the number of accidents she had. Hence her failure to give notice of the accident could be occasioned by mistake.

11. Failure to give notice of the accident is not fatal to a claim for compensation. The proviso to section 14(10)(b) provides that the want of notice shall not be a bar to the maintenance of proceedings if it is found in the proceedings for settling that claim that the employer is not prejudiced or that such want of notice was occasioned by mistake or other reasonable cause.

12. In view of the above, I think justice would be better served by allowing the amendment than by refusing it. I must however, emphasise that I am not making any finding of fact that the Respondent is not prejudiced by the Applicant's failure to give notice of the May accident or that her failure was occasioned by a mistake caused by her mental condition. These must be matters which have to be resolved at trial on the basis of expert evidence and testimony on oath and not affidavit evidence. Of course, for the purpose of the present application, some credible evidence in support of her case would suffice.

13. The Respondent's other ground of objection is that to allow such an amendment would be admitting an application for compensation out of time. Section 14 does not impose an absolute bar preventing an applicant from filing a claim out of time. Indeed, section 14(4) empowers the court to receive and determine any application notwithstanding that the notice required has not been given or that the application has not been made in due time if it is satisfied that there was reasonable excuse for the failure to do so. It imposes on the Applicant the burden to prove reasonable excuse for both her failure to give notice and to make the application out of time. Again, these matters should be resolved at trial.

14. For the above reasons, I allow the application and make the following directions:

1. The Applicant do have leave to amend her application as per draft attached to her summons dated 7 March 1997.

2. Service of the amended application be dispensed with.

3. The Respondent do have leave to amend the Answer within 14 days hereof.

4. Both parties do exchange their psychiatrist's reports within 28 days from the date of Order.

5. The Applicant do have leave to serve Supplemental Witness Statement within 14 days thereafter.

6. Cost of and occasioned by the application to amend the Application be to the Respondent in any event.

7. Applicant's own cost to be taxed in accordance with Legal Aid Regulations.