XCHRX LAM KIN MAN v. KOWLOON-CANTON RAILWAY CORPORATION

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEE'S COMPENSATION CASE NO. 412 OF 1997

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Reasons for decision

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1. On 17 June 1997, the Applicant made an application under section 14 of the Employees' Compensation Ordinance for compensation in respect of an accident which allegedly occurred on 21 August 1994. Obviously that application was not made within 24 months as required by section 14(1). The Respondent duly applied to have that application struck out as being made out of time. In the meantime, the Applicant sought leave to amend his application by including an appeal against the assessment of the Employees' Compensation (Ordinary Assessment) Board made on 24 June 1998. This appeal was made within the six month period as permitted under section 18(2).

2. Mr. Claypole on behalf of the Respondent objected to the application to amend the application for compensation. He submitted that the application for compensation is an application under section 18A which provides for the application to be made on prescribed form; whereas an appeal against the assessment is an application under section 18 for which there is no prescribed form. He therefore submitted that these are separate matters and the application for appeal should be made on a separate application and should not form part of the section 18A application.

3. He referred me to Chung Lung Shun v. Adams Parking (International) Limited, Civil Appeal No. 160 of 1995. In that case, the employee sought to appeal against the compensation assessed by the Commissioner for Labour under section 16A in respect of minor injuries by amending his proceedings under section 14 and 18A. Godfrey, J.A., considered the appeal against the Commissioner's assessment and the application for employees' compensation as two markedly different regimes; and a separate form should be used for an appeal under section 18 rather than to have the appeal included in the originating application under section 18A(2). Mr. Claypole referred me to the following dicta of Godfrey, J.A., at page 10:

"His proceedings here are in the nature of an appeal to the court under s.18, notwithstanding that the appeal is an appeal made in the form of an originating application, the form prescribed for which includes a claim for compensation. It is not an original application to the court, made under s.18A(2), for the determination of his claim by the court in the first instance, which would have been an application made, by reason of the time limit prescribed s.14, out of time. It may that the forms are unhappily worded. Certainly, a separate form should be provided for an appeal to the District Court under s.18, as distinct from those provided for an application to that court under s.18A."

4. Though the decision against which the present Applicant sought to appeal is made under a different section, i.e. section 16D, I consider the distinction immaterial. However, in conclusion, the Court of Appeal allowed the employee's appeal even though no separate form had been used. I must therefore consider Godfrey, J.A.'s dicta obiter and that failure to use a separate form for an appeal under s.18 not fatal to the appeal, though use of a separate form would be preferable.

5. Mr. Claypole also referred me to Chan Kit v. Sam Wo Industrial Manufactory, Civil Appeal No. 140 of 1988. In that case, the employee who sought to appeal against the assessment of the Employees' Compensation Assessment Board was ordered by the trial judge to file grounds of appeal. The employee appealed. The Court of Appeal allowed the appeal and held that under section 18A, an employee is allowed in the prescribed form and manner to enforce his claim for compensation and not expressly to pursue his appeal under section 18. However, the Court of Appeal did not deal precisely with the issue whether an appeal under section 18 can be included in a claim under section 18A.

6. In Chan Kit v. Sam Wo Industrial Manufactory, Hunter, J.A. held at page 5:

".... the Court's jurisdiction appears to be appellate. But one has then to remember that these Boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons. So that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the Court is so minded; it is plain that a Court approaching this matter has really got to start afresh."

Thus despite, it is called an appeal, the Court has to hear all evidence afresh. It is thus not objectionable to have both the appeal and the original application heard together; and indeed, it would be more convenient to do so.

7. In Ng Ming Cheong v. Mass Transit Railway Corp., [1997]3 HKC 413, at 416, Le Pichon, J. held:

"It is the clear intention of the legislation that the District Court is the forum to contest liability where this is disputed. It is also the forum to hear an appeal against the assessment of the Ordinary or Special Assessment Boards where either party is dissatisfied with it. Where liability is disputed, an employee may lodge a claim for compensation under section 18A of the Ordinance. Where the assessment is in dispute, this can be challenged by way of appeal under section 18. It can also be included in the section 18A proceedings by adding an appeal or application to appeal out of time against the assessment in the application of compensation. If it is the employer who is not satisfied with the assessment, he can do the same in his Answer. If separate proceedings have been instituted for the determination of liability and assessment respectively, they can be consolidated. The District Judge hearing the application for compensation can then deal with the two issues together at the trial."

8. The approach suggested by Le Pichon, J. is in fact the prevailing practice in this Court. It is not inconsistent with the two earlier Court of Appeal decisions, which I consider are not directly on the point. Employees' compensation is a statutory claim to provide to employees a speedy compensation by attaching a no fault liability on his employer and principal contractor. It is a piece of social legislation. Where possible, formalities should give way to practicality. These applications should be dealt with as expeditiously as possible and technical hurdles should be avoided if not inconsistent with the provisions of the Ordinance. I can see no reason for departing from the prevailing practice of this Court which has been endorsed by the Court of Appeal in Ng Ming Cheong. I therefore rule that an application to appeal against the assessment of the Board can be made together with an application under section 18A. I therefore grant the Applicant leave to amend the application and dispense with service of the amended application. I also order costs of the application be to the Respondents in any event and the Applicant's own costs to be taxed in accordance with the Legal Aid Regulations.