Si Nga Lai v. Uniforce Trading Co.

DCEC838/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 838 OF 2001

_____________________

_____________________

______________

R U L I N G

______________

1. This is an application under section 14(4) of the Employees' Compensation Ordinance (hereafter referred to as "the ordinance").

2. It is an application that is made of course by the applicant for the court to receive and determine her application for employee's compensation, notwithstanding the fact that the application is made outside the two-year limitation period established under section 14 of the ordinance.

3. It is four days out of time and of course the fact that it is only four days out of time is something which I bear in mind in the exercise of my discretion. The applicant must show that there is a reasonable excuse for not making the application within the two-year period.

4. Of course, this jurisdiction is one which is designed to provide for a speedy and uncomplicated procedure for an injured employee to apply for and receive compensation for injuries caused in the course of his employment. These time limits are time limits which should be adhered to. It is a straightforward procedure.

5. The legal principles are well known. The leading case is Wong Man Tak v Shaws & Son Limited [1957] DCLR page 85. One of the matters which one should bear in mind is that the reasonable excuse is one that should apply over the whole of the two-year period as being a reason why the application was not made in time.

6. There is something of a background to this particular matter. This lady, having been injured was, in the usual way, treated in hospital. She was discharged. There were periods when she had to undergo the inevitable physiotherapy, visiting on an out-patient basis and that took up a period of time.

7. There is also something which is very much in the background now but which, I can imagine, is a constant source of worry to her. It is this: in 1992 she was diagnosed as having breast cancer. There was surgery to remove the tumour. Subsequent to that she was treated by way of chemotherapy and radiotherapy.

8. Fortunately, she went into remission in early 1993 but, as we know with these matters, she is now having to go to hospital regularly to be checked on. Initially, of course, those visits were every two or three months.

9. Now that she has been in remission for a long time, she only needs to go every six months but I have no doubt that is a worry and a concern to her and it is obviously something that is there in the background and it is something that I am prepared to attach weight to in the exercise of my discretion in this matter as I look at the whole picture in deciding whether she has a reasonable excuse.

10. Fairly early on in the day, of course, she went to the Labour Department who assisted her in this matter. She then applied for legal aid and they, having regard to an insurance policy which her husband has, took the view that she needed to make a $30,000 contribution and she thought that was too much so she did not take up the offer of legal aid.

11. As the months went by, she was warned by the Labour Department that the time limit was fast approaching and it is right to say that she was aware of the two-year limit. It was going to expire, I think, on 13 October of last year and she contacted the court very close to the end of the time limit and it then became inconvenient for her to come to court. She had to go back to Tai Po. The Court Registry of course is here in the building in Central. She had her job to go back to and she decided that she could not come back to court until four days after the expiry of the limitation period.

12. Miss Fung relies in particular, perhaps not surprisingly, on a case called Ng King Lam v Hong Kong Aircraft Engineering Company Limited. It is an unreported case, a decision of mine. The reference is DCEC717/2000. On the facts of that case, where the applicant was just three days out of time, I refused to entertain his application. But the facts of that case were really rather extreme, where the applicant had made a fully informed decision that he in fact was not going to make an application for employee's compensation. Then he changed his mind, and then he found himself out of time, so I took the view that he had not shown a reasonable excuse.

13. Here I think the facts are somewhat different. One appreciates that these time limits are there and need to be adhered to in what is after all a relatively straightforward jurisdiction.

14. But, taking everything in the round, I have come to the conclusion that I think I can just about squeeze this lady in. I take the view that overall she has shown a reasonable excuse and I am going to allow her to make the application out of time and that is my order.

15. I order that:

(a) The application will be heard on 22 March;

(b) Leave to applicant to file application notwithstanding expiry of two-year limitation period;

(c) Costs in the cause.