KU MUI YING for herself and on behalf of the members of the family of YUEN CHU WING, deceased v. W. HING CONSTRUCTION CO LTD AND OTHERS

DCEC 2360/2020

[2021] HKDC 830

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2360 OF 2020

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IN THE MATTER OF AN APPLICATION BETWEEN

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DECISION

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1.  This matter concerns a fatal incident.

2.  Madam Ku Mui Ying (“the AP”), the widow of Mr Yuen Chu Wing (“the Deceased”), now by summons dated 25 November 2020 applies for leave under section 14(4) of the Employees’ Compensation Ordinance Cap 282 (“ECO”) to file an application out of time to seek compensation from the 1^st respondent, the principal contractor (“R1”), the 2^nd respondent, the subcontractor (“R2”) and the 3^rd respondent (“R3”).  It is the AP’s case that either R2 or R3 was the Deceased’s employer.

3.  The application is opposed by all the respondents represented by Ms Christina Lee of counsel.  The AP is represented by Ms Lorinda Lau of counsel.

The law

4.  Section 14(4) of the ECO empowers the Court to receive and determine an application for employees’ compensation out of the prescribed period of 24 months after the accident if it is satisfied that there was reasonable excuse for the failure to make the application within time.

5.  In considering whether there was reasonable excuse, the Court may take into account all the circumstances of the case including the reason for the delay, the length of the delay, the merits of the claim, and whether prejudice would be caused to the interests of the intended respondent (Tsang Loi Fat v Sun Fook Kong[1] ).

6.  In Tsang Loi Fat, the Court of Appeal further observed at §§11 and 12:-

“In considering the reason for the delay, the Court has to take into account the following factors:

1) The age, education level, intelligence and background of the Applicant;

2) Generally speaking, Applicant’s ignorance of the law is not a reasonable excuse for the delay. On the contrary, if the Applicant is sufficiently learned and knows how to make a claim, but fails to do so within the prescribed period, this is a factor to support the contention that the Applicant has failed to provide a reasonable explanation for the delay;

3) The health condition of the 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 is because of his illness; and

4) Whether the Applicant’s failure to make a claim before the expiry of the prescribed period was induced by the conduct of or words said by his employer, insurance company, or a third party.

12. The abovementioned is not meant to be an exhaustive list. This Court only sets out some relatively common factors here, whether the Court would grant an extension of time depends on the facts of each case.”

7.  The Court has an unfettered discretion, but its such power should be exercised liberally[2].

8.  Both counsel also referred me to the often-cited passage in the judgment by HHJ Charles in Wong Man Tak v Shaws & Sons Limited as to what amounts to a reasonable excuse in section 14(4) of ECO:-

“A reasonable excuse in the ordinary sense of the phrase means in relation to a failure by an applicant to make his application for compensation within the prescribed period that the failure was due to such cause or causes that it ought, as a matter of reason, to be excused. …… Moreover, an applicant was not excused if he had a reasonable cause which operated only for part of the period. He had to have reasonable causes for the whole period. Thus while an applicant might delay making his claim until the last moment of the prescribed period, he was not entitled to be excused if his last moment claim was prevented by a reasonable cause unless he could show that he had good reason for not making his claim before that cause arose. … . The principle to be deduced from the foregoing is, I think, that an applicant has a reasonable excuse for not making an application to the court for compensation within the prescribed time if his failure was due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part.”

Background and the incident

9.  At the time of the incident, the Deceased was 60 years old.  He was then working as a foreman performing the fire services installation works at the construction site at New Kowloon Inland Lot No.6313 (“the Site”).  Of particular relevant is, and it was not disputed, that his job duties included the inspection of pipe layouts.

10.  The Deceased’s wife, the AP, was educated up to Form 5.  They were married in 1989.  The AP has all along since been a housewife and a full-time mother and has never worked a job.  They have 2 children, born in 1990 and 1993 respectively.

11.  At about 3pm on 12 March 2018, the Deceased was found lying face up and unconscious on the floor of the switch room near staircase No. 1 on 6^th Floor at the Site.  His head was near the partition wall which was then unfinished and was only built up to about 2 feet high.  The Deceased’s co-worker working on the same floor, one Mr Cheung, R2’s foreman one Mr Chan, R1’s safety officer and a first aider were all immediately informed.  The Deceased was then sent to Department of Accident & Emergency of United Christian Hospital (“A&E of UCH”). Later that day, he was transferred to Queen Elizabeth Hospital.

12.  Unfortunately, the Deceased was certified dead at 3:30pm on 14 March 2018.  The AP was informed by the hospital staff that the cause of death would be determined upon further investigation.

Complexities regarding the determination of the cause of the incident and whether it was an industrial accident

13.  Evidently, the cause of the incident and whether it was an industrial accident would be much disputed in the substantive application for compensation if I allow this application, I will therefore refrain from going into these matters any more than strictly necessary for the disposal of this application.

14.  The A&E of UCH found there was mild swelling and abrasion over occiput and CT scan showed there was right acute subdural hematoma and subarachnoid haemorrhage with occipital bone fractures.

15.  The investigation officer of the Labour Department (“the Investigation Officer”) all together interviewed or contacted 20 witnesses in the course of time, some of them were medical officers that had treated the Deceased previously on other occasions.  There was no eyewitness of the incident.  None of the witnesses at the Site heard anything.  The Deceased’s safety helmet was located beside his head.  His tools were found nearby.  There was no sign of work-above-ground because no working platform, ladder or work-above-ground tools were seen at the scene.  There was no sign of electrocution as no source of electricity was found at the scene.  The ventilation and temperature were normal and lighting sufficient at the scene.  The Deceased’s colleagues all said that there were no signs of abnormality noted regarding the Deceased that day.

16.  In the course of the investigation, the medical history of the Deceased was obtained and referred to.  Among others, it was shown that the Deceased was diagnosed in early October 2001 to have suffered from left parietal subdural acute on chronic hematoma, for which he was hospitalized for several days[3].

17.  Concerning whether the incident was an industrial accident, apparently there was emphasis placed on the fact that no construction work was being conducted at the scene at the time.  This was a matter repeated referred to by Ms Leung Siu Lin (“Leung”) of United Adjusters (HK) Ltd. (“UA”), the loss adjustor, in her communications with the AP, and a matter also now relied on by the respondents.  That however is really not the issue for the purpose of employees’ compensation, which is whether the accident arose out of and in the course of the employment.  Ms Lau referred to (a) the Investigating Officer’s report saying that the Deceased was inspecting the pipe layout, (b) a picture taken at the scene at the time[4] showing that there was a vertical pipe laid near the entrance of the switch room, and (c) other pictures of the scene showing that there were bricks lying around and there were what seemed to be sheets of old plywood placed on the floor, the edges of which were about 1 to 2 inches above ground.  Ms Lau submitted that there was a real possibility that the Deceased might have tripped over the bricks or over the edge of the sheets and fell with his head hitting the edge of the unfinished dividing wall.  This possibility apparently had not been considered by the Investigating Officer.

18.  The autopsy report said that the cause of death appeared to be “traumatic skull fracture, traumatic right subdural hemorrhage, cerebral contusions”[5].

19.  Apparently the Coroner’s Court called for a Police Report for the purpose of deciding whether to hold an inquest and time had been taken by the Police to compile their report.  It was only by a letter dated 17 March 2020 that the Hong Kong Police informed the AP that the Coroner’s Court had decided not to hold an inquest.

Salient events

20.  I think it helpful next to set out the salient events that occurred since the incident until the AP’s present application.  These salient events are either undisputed, unless stated otherwise, or are established by gleaning the documents.

21.  On 14 March 2018, 2 colleagues, whom the AP understood to be employees from R2, visited the Deceased at the hospital and there gave an ex-gratia payment of HK$100,000 to the AP.  It was the AP’s affirmation evidence (which is not undisputed) that one of them assured her that the incident was an industrial accident, and the company would follow up and pay the compensation (“阿嫂，不用擔心，呢單嘢係工傷意外。你放心，公司一定會跟進及作出賠償”).

22.  About a week later, the AP received a letter dated 23 March 2018 from UA, in which UA introduced itself as representing R1’s insurer to follow up and investigate the incident, and asked the AP to sign 2 authorizations, one was for obtaining medical reports from United Christian Hospital and the other to authorize UA to obtain all relevant documents from anyone, including the Labour Department, the Coroner’s Court, the Police and any government and non-government bodies.  UA there also requested the AP to provide, among others, the Death Certificate of the Deceased so as to assist in the investigation.  The AP duly signed the 2 authorizations.

23.  About 2 weeks later on 9 April 2018, the same 2 colleagues together with another visited the AP and paid her another HK$100,000 as ex-gratia payment.

24.  In the meantime on 19 and 20 March 2018, the Labour Department received two Form 2, both filed by R2, the former was dated 14 March 2018 and the latter 13 March 2018.  In both Form 2, R2 was stated to be the employer of the Deceased.  I mention this because some 2 years and 3 months later in around June 2020, R3 surfaced and “clarified” that it was R3 who was the employer of the Deceased, and not R2.

25.  In mid April 2018, the AP attended the office of the Labour Department to fill out some forms.

26.  The Labour Department has compiled an Accident Report dated 18 July 2018.

27.  On 21 December 2018, the AP gave a statement to the Hong Kong Police as requested by them.

28.  On 8 August 2019, Leung called the AP.  The telephone conversation was followed by a letter from UA dated 9 August 2019 to post-record the gist of the conversation.  The letter said that in the telephone conversation Leung explained the reason why R2 so far has not responded to the Labour Department as to whether the incident was an industrial accident.  The letter then stated the reason given, namely, that the Coroner’s Court required the Police to submit a detailed report, which was not yet available, and therefore Coroner’s Court has not decided whether to hold an inquest, and therefore the Death Certificate of the Deceased was not yet issued.  The letter further stated that at this stage there would be a wait of 2 to 3 months or more before the Coroner’s Court would decide whether an inquest would be held.

29.  Notably, in the same letter, UA further sought from the AP a copy of the statement she had given to the Police and a copy of certain letter the AP has sent to the Labour Department “to assist the further investigation of the insurer”.

30.  I note at this juncture that the AP had been calling the Labour Department and Leung at various stages to chase after the claim.

31.  In late January 2020, the AP received a letter from the Labour Department dated 22 January 2020 (“1^st LD Letter”), the 2nd and 3^rd paragraphs read:-

“勞工處處長（下稱「處長」）在收到有關個案的呈報及有關文件後，會考慮個案是否適合由他作出裁定。若處長認為本個案的死亡個案補償的申索不適合由他作出裁定，或僱主或任何申索人不同意將申索交付處長裁定，則個案需由法院作出裁定。申索人須在僱員死亡日期起計的24個月內向區域法院提出申請。由於袁柱榮先生在2018年3月14日去世，這案件的最後入稟法院期限是2020年3月13日，假如超越這個日期，法院便有權拒絕這項申請，敬請留意。

如果你打算就此個案的申索向法院提出申請，請盡快與本處聯絡，以便協助你直接向法院，或透過法律援助署向法院申請。”

32.  According to the AP, in the second half of February 2020, she received another letter from the Labour Department dated 3 February 2020 (“2^nd LD Letter”). I will quote its contents in full:-

“ 就有關袁柱榮先生於2018年3月12日意外死亡一事，現通知你，勞工處處長根據«僱員補償條例»(第282章) 第6B(2)/6E(17)條，決定不裁定有關此個案的死亡補償/須付還的殯殮費和醫護費，原因如下：

死亡補償/殯殮費和醫護費：

- 僱主沒有向裁定申索的處長給予書面同意

- 處長認為不適合就有關的申索作出裁定

i) 須在已故僱員身故後的24個月內交由法院裁決的限期將近

請注意，本個案的死亡補償/殯殮費和醫護費申索，須根據第18 A(1)條，由香港區域法院裁定。有關的申索須在僱員的死亡日期起計24個月內，向法院提出。本個案入稟法院的最後限期是2020年3月13日。如有需要，本處可轉介你前往法律援助署，以申請法律援助。你亦可自行入稟法院，或聘請私人律師代你入稟法院。如你聘用私人律師，請將律師的資料通知本辦事處，以便跟進。

如有查詢，請撥電2852 3994與本辦事處職員聯絡。”

33.  On about 25 February 2020, the AP was informed by the Births and Death Registry that the Death Certificate of the Deceased was issued and could be obtained.

34.  According to Leung, on 28 February 2020 her colleague left her a message that the AP has called her.  Apparently, the call was not returned in due course. Leung said she returned the call but could not remember when.  She was quite sure that the call had taken place before 11 March 2020 as, according to her, she had reported the progress to the insurer that day and her report included that telephone conversation with the AP. 

35.  By letter dated 4 March 2020 addressed to R1 and copied to R2, the Labour Department informed R1 and R2 that the Labour Department would no longer proceed with this case for the reason that family members of the Deceased no longer wished to apply for compensation under the ECO (“3^rd LD Letter”).

36.  The AP accepts that around that time she had orally told a staff of the Labour Department that she no longer wished to pursue the application for employees’ compensation and offered an explanation, which I would consider in due course.

37.  As mentioned, by a letter dated 17 March 2020, the Hong Kong Police informed the AP that the Coroner’s Court has decided not to hold an inquest over the death of the Deceased.

38.  According to the AP, on 7 April 2020, she had a conversation with Leung that day, which she had recorded (“the Recorded Conversation”).  The AP had transcribed the Recorded Conversation into 5 pages.  There were minor disputes over the accuracy of her transcription.  In sum, in this long conversation in which basically only Leung spoke, Leung explained diplomatically and in a roundabout manner why the insurer would not pay the compensation and that the AP was left with the option of applying to the Court for it, but that would be her decision.

39.  Around that time, the AP also had a talk with her younger brother.  The AP frankly said that her younger brother blamed her for not claiming against the employer to get justice for the Deceased.

40.  On 8 April 2020, the AP assisted by her younger brother consulted a District Councillor and sought assistance from the Association for the Rights of Industrial Accident Victims.  They also sought assistance from the Federation of Trade Unions.

41.  On 21 April 2020, the AP applied for Legal Aid.  The AP then sought and obtained various documents from the hospitals, the Labour Department, the Police and the Coroner’s Court.

42.  On 4 May 2020, the AP wrote to the Labour Department to try to revive her claim for employees’ compensation.

43.  In mid May 2020, the AP sought assistance from the Labour Department regarding the payment of long service pay to the Deceased.  By a letter dated 1 June 2020 (“4^th LD Letter”), the Labour Department informed the AP that R3 now claimed to be the employer of the Deceased at the time of the incident.  In the 4^th LD Letter were enclosed a letter from R3 to the Labour Department and various documents proffered by R3.  In mid August 2020, the AP claimed in the Labour Tribunal against R2 for long service payment.

44.  On 3 November 2020, the AP was granted legal aid.  On 25 November 2020, this application was taken out by the AP.

Was there reasonable excuse?

45.  Both counsel have advanced to the Court able and full submissions.  The AP’s case initially was run along the line that she was “misled” such that she thought legal proceedings were not necessary.  This understandably provoked reaction from the respondents.  Ms Lau, in my view rightly and sensibly, at the hearing no longer pursued that line.  Ms Lee essentially analyzed the “excuses” given by the AP individually and submitted, quite forcefully, that each of them did not amount to a reasonable excuse.  In the circumstances of this case and without any disrespect to counsel, I find myself not attracted by that approach, but would approach the matter liberally and holistically.

46.  Stepping back to look at the matter, I take the following views.

47.  Firstly, I accept and take into due account that the AP was educated only up to Form 5 and all her life she had never worked a job and been a housewife and mother only.  I have taken the time to hear the audio recording of the Recorded Conversation.  While Leung on her part has been trying to explain the various things involved as simple as possible, I formed the clear impression that the AP was not really following.  I do not think the AP was intelligent or well informed enough to understand the many intricacies involved in this matter.  I think it right and fair to consider the AP’s explanations, as well as the respondents’ criticisms, in the light of her background.

48.  Secondly, this is far from a run-of-the-mill employees’ compensation claim.  The investigation involved has been protracted.  The Accident Report was dated 18 July 2018.  UA’s letter dated 9 August 2019 stated that R2’s position was that they were still waiting for the decision of the Coroner’s Court as to whether to hold an inquest, which in turn would need to await the Police report, which would take months.  From the Police Report obtained after the AP was granted legal aid, it can be seen that it was dated 6 November 2019[6].

49.  Thirdly, I accept Ms Lau’s submission that the AP has been labouring under the perception that this was not a straightforward case, but R1 and R2 and Leung were processing the claim and following the matter up, and that because the matter was complicated, she need to wait to see if the Coroner’s Court would hold an inquest whereby the cause of death would be definitively established. I would particularly note that this need to wait for the inquest or the decision of the Coroner’s Court not to hold one was particularly impressed upon the AP by Leung.  I think such perception held by the AP was reasonable and justified by (a) the fact that payments of the two ex-gratia payments, visits by employees of R2 and UA’s letter dated 23 March 2018 requesting the necessary authorizations to obtain documents for the purpose of processing the claim were all very timely; and (b) what was said in UA’s said letter dated 9 August 2019.

50.  In this connection, I do not accept Ms Lee’s contentions to the effect that because the AP had been told by the staff of the Labour Department when she made the telephone inquiries that R1 and R2 did not consent to the claim being adjudicated by the Commissioner, the AP ought to have known that R1 and R2 had never admitted that they were liable to pay the compensation.  As said, I take the view that with her background, the AP could not be fairly taken as so well-informed in these matters.

51.  Therefore, the picture was that the AP has been doing all she understood she should do or were requested of her to pursue the claim, namely cooperating with UA and Leung, going to the Labour Department to fill out forms and such, giving the written statement to the Police, and chasing Leung and the Labour Department by phone.  On the other hand, R1 and R2 and their insurer also all along understood that the AP was eagerly pursuing the claim, and as conveyed by Leung, they were waiting for the inquest or the decision not to hold one.

52.  The picture was abruptly changed when the AP received the 2^nd LD Letter dated 3 February 2020 in which the Commissioner clearly stated for the first time that he would not adjudicate on the claim.  I accept that with the AP’s background, she would not be able to figure out the implications of what was said in the 2^nd LD Letter, or to have any clue as to why that was so.  The AP then obtained the Deceased’s Death Certificate probably a day or two after 25 February 2020.  Again, I do not believe she would be able to understand the implications following the issue of the Death Certificate.  According to Leung, the AP called her on 28 February 2020 no doubt to enquire of her about the 2^nd LD Letter and related matters.  According to Leung, she did return the call right away, but only return it on a date between 28 February 2020 to 11 March 2020, which period was already very close to the expiry of the 24 months’ period.

53.  Now, neither the AP nor Leung was able to depose to the contents of this telephone conversation.  Accepting Leung’s evidence that there was such a telephone conversation between her and the AP, I would infer that the contents would be very similar to those of the Recorded Conversation.  In the Recorded Conversation, Leung spoken protractedly and attempted to give an analysis, albeit trying to do so in simple terms, of why the insurer refused to pay the claim.  Having heard the Recorded Conversation, I cannot but conclude that the picture or impression conveyed very nicely by Leung was that of doom and groom regarding the AP’s claim.

54.  The AP essentially gave the following explanations for why she had not filed an application after receiving 2^nd LD Letter.

55.  Firstly, she had become despondent and frustrated as the claim had been processed for so long, and yet there was little progress, as she did not know then that the Accident Report in fact had been compiled and the Coroner’s Court had already decided not to hold an inquest (she was only informed later by the letter of the Police dated 17 March 2020).  Apparently, the message she received from Leung at a time very close to the deadline was that upon analysis (which I do not think the AP was able to understand or follow) the AP’s claim would fail

56.  Secondly, she had some personal savings of close to HK$ 1 million which she had kept her children from knowing, and she also owned the flat she was living in.  She was therefore under the clear (but wrong) impression that she was not entitled to Legal Aid at all.  Moreover, for her personal reasons, she did not want her children to know about the savings.  The AP therefore felt that engaging private lawyer to pursue the claim would be very costly and risky, which caused her to hesitate.

57.  Thirdly, the apparent difficulty before her in pursuing the claim rekindled her grieve of the sudden loss of her husband.

58.  Fourthly, in a moment of haste, frustration and despair, she orally informed the staff of Labour Department that she no longer wished to pursue the claim.

59.  Shortly after, she talked to her younger brother and realized she had made a mistake.  She immediately took prompt actions to apply for legal aid and pursue the claim.

60.  Ms Lee submitted that the AP has made a decision not to pursue the claim and she should be held to that and not be allowed now to retract.

61.  From the above narrative of the salient events, it can be readily appreciated that, to the AP, the matter concerning the AP’s claim had suddenly and unexpectedly taken an abrupt downturn since mid February 2020.  Essentially, the AP had just one month, from receiving the 2^nd LD Letter until the deadline, to deal with all the challenges attendant on making the claim for compensation by legal proceedings. 

62.  Moreover, considering particularly (a) the AP’s background, (b) the loss of her husband was so sudden, (c) the impression given her that the claim was duly and timely processed by UA, (d) the complexities in this claim, (e) the length of time taken by the investigations culminating to the decision not to hold an inquest which was communicated to the AP only after the expiry of the 24 months’ period, (f) the impression given by Leung of the pivotal importance of an inquest, (g) in August 2019 the AP was explained she need to wait while UA continued to ask for further documents to assist in investigation (h) the matter took an abrupt downturn after the 2^nd LD Letter, and she then had only a bit more than a month before the deadline, and (i) the fact that only at the very last moment close to the expiry the AP was impressed upon by Leung that her claim would fail, I do not regard as being unreasonable any of the reactions the AP had as set out in paragraphs 55 to 58 above.  I think her momentary and hasty decision not to pursue the claim orally communicated to the Labour Department staff should be viewed in the same light.

63.  I also accept Ms Lau’s submission that the period of delay should be regarded as short – about a month and a half - as the AP went to apply for legal aid on 21 April 2020, and the time taken afterwards were not of her making and indeed were out of her control.  I accept the explanation that the delay in granting legal aid was caused largely by the sudden emergence of R3 as the employer more than 2 years later after the AP made a claim for long service payment, which was a complete surprise having regard to all the communications and documents given by R1, R2 and Leung and which necessitated a new line of enquiry.

64.  Moreover, R1 and R2 knew well that all along the AP was making a claim for compensation.  R1 and R2 had been investigating and preparing for such a claim.  Thus, there was no, and Ms Lee did not contend otherwise, specific prejudice occasioned to them if leave to file an application out of time is given.

65.  Looking at the matter in the round, I am persuaded that there was reasonable excuse on the part of the AP for her failure to file an application in time.

Flimsy evidence to support the AP’s claim

66.  Ms Lee cited Sit Wing Yi Sibly v Berton Industrial Limited[7] and submitted that there was flimsy evidence to prove the element of an accident as required under section 5(1) of the ECO.

67.  The facts in that case in my view are distinguishable from those in the present.  In that case, the cause of death was entirely unknown.  In the present case, the cause of death included fractures in the skull caused by trauma and internal bleeding.  Moreover, looking at the pictures of the scene taken at the time, one cannot summarily dismiss the possibility that the Deceased might have tripped and fell when inspecting the vertical pipe.  While agreeing with Ms Lee that presently there cannot be said to be much evidence to go by to prove the element of an accident, I cannot and would not conclude that the AP’s claim does not have some prospect of success.

Conclusion

68.  All things considered, including the respondents’ criticism on the lack of strength of the AP’s claim, I am persuaded that in the exercise of my discretion, I should grant leave to the AP to file an application for employees’ compensation out of time.

R3’s situation

69.  For completeness, I would record that I have invited and heard submissions regarding the scenario that if I find that there was no reasonable excuse vis-à-vis R1 and R2, whether leave ought to be granted to file an application just against R3.  Ms Lee, in my view, fairly and rightly accepted that R3’s position in opposing the leave should be weaker than that of R1 and R2.  I would have been prepared to grant leave as against R3 only if that scenario arises.  However, that scenario does not arise.

Disposal

70.  I would allow the AP’s application.

71.  On costs, the costs of making this application ought to be paid by the AP, while the costs incurred for further opposition arguably should follow the event.  In the round, I think the just costs order is to have the costs of this application, with certificate for counsel, to follow the event of the substantive application for compensation.  I so order on nisi basis which will become absolute in 14 days unless any party applies to vary within that time.  The AP’s own costs will be taxed according to the Legal Aid Regulations.

72.  Lastly, I would like to thank both counsel for their able assistance.