TSANG LOI FAT v. SUN FOOK KONG (FORMERLY KNOWN AS SUNG FOO KEE LTD)

[English Translation – 英譯本]
CACV 69/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 69 OF 2010

(ON APPEAL FROM DCEC NO. 1025 OF 2008)

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Between

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JUDGMENT

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Hon Cheung JA giving the judgment of the Court:

Facts of the case

1.  On 4 September 1990, the Applicant was in the employment of the Respondent, and worked in the latter’s construction site in Laguna City. The Applicant was robbed and attacked with hammer while at work on the material day and sustained injuries on his head and private parts of the body. The Applicant underwent cranial and maxillofacial fracture surgery and had his right testicle surgically removed after being sent to the hospital. The Applicant suffers from symptoms of dizziness, palsy, epilepsy and so on after the injury and has to take medication to control them. The Applicant has a renal cyst on his right kidney. He also suffers from erectile dysfunction.

2.  On 16 October 1990, the Respondent lodged a “Notice of an accident of an employee given by an employer (to the Commissioner for Labour)” pursuant to Section 15 of the Employees’ Compensation Ordinance (the “Ordinance”), Cap. 282, Laws of Hong Kong. On 29 April 1993, the “Employees’ Compensation (Ordinary Assessment) Board” (the “Board” ) issued a “Certificate of Assessment” pursuant to Section 16F the Ordinance stating that the Applicant sustained injuries on his head thereby causing tinnitus in his right ear, post-concussion syndrome and psychoneurosis. It was assessed that the Applicant suffered a 15½% loss of earning capacity.

3.  On 13 May 1993, the Applicant and the Respondent entered into an “Agreement between the Employer and the Employee” (the “Agreement”) pursuant to Section 17 of the Ordinance (now repealed), in which the Respondent agreed to make a compensation of $219,841.67 to the Applicant. The Commissioner for Labour approved “the Agreement” and the Applicant was awarded the said amount of compensation under the said “Agreement”.

4.  Roughly 18 years after the said accident, on 25 August 2008, the Applicant made the following two applications to the District Court:

1) To claim employees’ compensation out of time; and

2) To appeal against the “Certificate of Assessment” dated 29 April 1993 out of time.

5.   The Respondent filed a “Reply” opposing the relevant applications. Judge Simon Leung of the District Court held a hearing on 17 March 2010 to decide if the Applicant could claim employees’ compensation out of time and if the Court should grant an extension of time to the Applicant to appeal against the Certificate of Assessment.

6.  Judge Leung refused the relevant applications on 22 March 2010. Now the Applicant appeals against the decision of Judge Leung.

Prescribed period under the Ordinance

7.  Pursuant to Section 14(1) of the Ordinance, the Applicant has to make an application for employees’ compensation within 24 months from the occurrence of the accident causing his injury. However, Section 14(4) of the Ordinance also provides that the Court may receive and determine the application if it is satisfied that there was “reasonable excuse” for the Applicant’s failure in making the application within the time as required. In addition, it is stipulated in Section 18(2) of the Ordinance that no appeal shall lie after the expiry of 6 months from the date of issue of the relevant “Certificate of Assessment”. However, Section 18(2) also provides the Court with discretion to extend the relevant time within which to appeal.

Legal principles on the exercise of discretion

8.  Judge Leung exercised his discretion and refused to allow the Applicant to make his claim for employees’ compensation out of time and appeal against the “Certificate of Assessment” out of time.

9.   When dealing with appeal against the exercise of discretion, the legal principle laid down by the Court of Appeal is that unless the trial judge was wrong in principle in the exercise of his discretion by, for instance, taking into account matters which are irrelevant or failing to take into account matters which are relevant, the Court of Appeal would not set aside the relevant ruling and re-exercise its discretion.

Reasonable excuse

10.   When the Court rules on whether there is a reasonable excuse in relation to a failure by an Applicant to make his application for employees’ compensation within the prescribed period, apart from considering the reason for the delay, it also has to consider the length of the delay, whether there is sufficient ground to support an award of employees’ compensation to the Applicant; and whether prejudice would be caused to the interests of the Respondent if an extension of time is granted by the Court.  This Court is of the view that these factors are relevant to the reason for the delay. The longer the delay, the more the Applicant has to prove that his claim has an extremely high chance of success. A long delay will cause more prejudice to the interests of the Respondent than a short one.  

Reason for the delay

11.   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.

13.   Generally speaking, the appeal against Certificate of Assessment is dealt with at the same time as the employees’ compensation case. Therefore, the above principle may also be applicable to an application for extension of time to appeal.

Length of the delay

14.  The Applicant sustained the injuries in the attack on 4 September 1990. Therefore, the prescribed period for his claim ended on 3 September 1992. However, he delayed making the present application until 25 August 2008, that is, roughly 16 years after the expiry of the prescribed period. This is indeed a very long delay.

Reason for the delay

15.  The Applicant was born in 1956. He offered the following explanations for his delay: he is a person with disabilities. According to his Registration card for People with Disabilities, he suffers from psychiatric illness, visceral disability and chronic illness. The Applicant claimed that he was incapacitated after sustaining severe personal injuries in the accident. The Applicant claimed that he was ignorant of the law, and also not aware of the prescribed period for the claim as stipulated in the Ordinance. He claimed that he suffered from psychiatric illness which affected his cognitive skills and capabilities when he entered into the “Agreement” with the Respondent. 

16.  The Applicant claimed that the “Board” failed to consider his injury meticulously when assessing his loss of earning capacity, and did not, in particular, consider the fact that he had to undergo surgery to remove part of his sex organs as a result of the incident, and therefore he did not receive proper compensation.

View of this Court

17.  Without doubt, the Applicant was seriously injured in this accident. This Court would like to extend its deepest sympathy to him. However, according to the medical reports, he has made good progress in his recovery. The Applicant is not a person who knows utterly nothing about how to protect his own interests. That he started to apply for legal aid in 1992 to assist him to recover employees’ compensation and compensation for personal injuries is indicative of this.  Besides, between 2005 and January 2008, he also claimed for damages and applied for judicial review against the Labour Department. He simply never claimed employees’ compensation against the Respondent. 

1) Before entering into the “Agreement” with the Respondent, the Applicant applied to the Legal Aid Department for legal aid on 22 June 1992 for recovery of employees’ compensation and negligence compensation arising out of this accident. However, the application was refused.

2) After entering into the “Agreement” with the Respondent, the Applicant again applied for legal aid on 13 July 1993. His application relating to the employees’ compensation claim was later refused, he then withdrew the application relating to the negligence claim himself.

3) On 3 August 1999 and 27 April 2004, the Applicant applied for legal aid again, but was refused.

4) In 2005, the Applicant made a claim against the Employees’ Compensation Division of the Labour Department of the HKSAR Government (Case No. HCPI 72/2005) alleging that the robber who attacked him was an illegal worker, and that had the Labour Department been effective in its inspection on construction sites, there should have been no illegal worker in the construction site. Upon the application made by the Labour Department, a Master of the High Court struck out the Plaintiff’s statement of claim and dismissed the action.

5) The Plaintiff appealed against the decision. Deputy High Court Judge B. Fung of the Court of First Instance (as he then was) dismissed his appeal on 23 June 2005.

6) The Plaintiff applied to the Court of Appeal for leave to appeal out of time. The application was, however, refused by Yuen JA on 6 October 2005. The Applicant further applied to the Court of Appeal against the decision of Yuen JA. His application was nonetheless dismissed by the Court of Appeal on 19 December 2005. The Applicant applied for leave to appeal to appeal to the Court of Final Appeal. The application was also dismissed by the Court.

7) In 2007, the Applicant further applied to the Court of First Instance for leave to seek judicial review of the decision made by the Labour Department (Case No.: HCAL 46/2007). The said application was refused by Poon J of the Court of First Instance of the High Court on 8 May 2007. The Applicant further applied to the Court of Appeal to appeal against the decision. Yeung JA dismissed his application on 28 January 2008.

18.  This Court is of the view that the Applicant has failed to provide a reasonable explanation for his long delay in making the application.

Content of the “Certificate of Assessment”

19.  According to the medical reports, the Applicant’s scrotum was injured in the accident and his right testicle had to be surgically removed. Besides, the medical reports also showed that he underwent urethral surgery in 1991. These two injuries are not recorded in the “Certificate of Assessment”.

20.  The First Schedule of the Ordinance sets out the “Injury” and “Percentage of loss of earning capacity”. Pursuant to Section 9(1)(b) of the Ordinance, even in the case where an injury is not specified in the First Schedule, the loss of earning capacity caused by such injury shall be assessed by the “Board” or the Court “as a percentage having regard so far as possible to the scale of percentages specified in that Schedule and to the Note thereto.” Item 46 of the First Schedule sets out the percentage of loss of earning capacity caused by urethral injury. It depends on the frequency of the urethral stricture required. Item 46 was added to the said Schedule in 1993.

21.  This Court does not take the view that the failure to disclose in the “Certificate of Assessment” that the Applicant’s right testicle was surgically removed and he had to undergo the urethral surgery would result in a ruling that the assessment was obviously inaccurate; and thereby requires the Court to extend time to appeal against the said Certificate and allow his claim for employees’ compensation to proceed, and to re-assess the extent of his loss of earning capacity. The reasons are as follows:  Firstly, this Court does not think that the Applicants’ orchiectomy has anything to do with his working capacity. After the accident, the Applicant got married in 1993 and has two children after the marriage. His complaint was that this disability affected the relationship between the couple and their sex life. Secondly, the medical reports just briefly mentioned the urethral surgery: He underwent urethral catheterization which caused urethral stricture in 1991. He then had cystoscopy and underwent dilatation of stricture later on. The relevant examination and dilatation surgery were completed smoothly. It is not recorded in the reports as to whether the Applicant is required to undergo another dilatation procedure or the frequency thereof. In the absence of other evidence at present, it is not proper for the Court to allow him to initiate new proceedings merely because the “Certificate of Assessment” failed to disclose these two matters.

The Agreement

22.  Moreover, in May 1993, the Applicant accepted the compensation paid to him by the Respondent in accordance with the “Agreement” he entered into with the Respondent. The “Agreement” was entered into pursuant to Section 17 of the Ordinance which was then still in force. The said Section 17 was repealed in 1996. The then Section 17 provided that:

“ (1) Subject to subsection (2), in the case of an injury to an employee where the percentage of loss of earning capacity assessed under section 16D(5), 16E(8) or (9), 16G(2) or 16GA(1) is more than 5% his employer shall, within 21 days after the relevant date, take all such steps as are necessary and reasonable on his part to enter into an agreement with the injured employee as to the compensation payable by him under Sections 7, 9 and 10 as may be appropriate for the injury. [Amended 31 of 1985 s. 9; 59 of 1988 s.6]

Provided that the amount of such compensation to be agreed upon shall not be less than the amount payable under Sections 7, 9 and 10.”

23.  And pursuant to Sections 17(4) and (5), a copy of the said compensation agreement shall be submitted to the Commissioner for Labour for his approval. But, the Commissioner may refuse to give approval. Should the Commissioner approve the said agreement, the content therein shall be binding on both parties.

24.  Further, Section 17B(1) of the Ordinance provided that the Court may cancel the agreement in the following circumstances:

“(a) the sum paid or to be paid was or is not in accordance with provisions of this Ordinance; or

(b)the agreement was entered into in ignorance of, or under a mistake as to, the true nature or the extent of the injury; or

(c)the agreement is obtained by such fraud, undue influence, misrepresentation or other improper means as would, in law, be sufficient ground for avoiding it; the said compensation agreement approved by the Commissioner may be cancelled.”

25.  Application in respect to the cancellation of the said agreement shall be made to the Court within 6 months after the date of the Commissioner’s approval (of the agreement). Should the application satisfy the requirements, the Court may grant an extension of time in respect of an application.

26.  Pursuant to the above provisions, clause 10(2) of the “Agreement”, i.e., “all other rights and compensation that the employee is entitled to because of or as a result of the above accident do not constitute a waiver, nor are they prejudicial, restrictive or binding”, refers to the compensation claim for personal injuries made by the employee under the Common Law, instead of the employees’ compensation claim made by him in pursuance of the Ordinance.

27.  According to Section 17B, if a party to the agreement wishes to cancel the agreement, his application shall be made to the Court within 6 months. Should the employee fail to apply for cancellation of the agreement within the prescribed period, or provide a reasonable explanation to the Court when applying for an extension of time, he may not recover employees’ compensation from the employer.

28.  This Court does not take the view that the “Agreement” was entered into by the Applicant due to his ignorance of or mistaken understanding of the true nature or the extent of his injury. As he attended the injury assessment, he therefore had the opportunity to point out to the Board all his injuries.  The Applicant has failed to adduce evidence to prove that the “Agreement” was reached by the above improper means and that the agreed amount of compensation was not in accordance with the provisions of the Ordinance.

Whether prejudice would be caused to the Respondent if the extension of time is granted

29.  It would be unfair to the Respondent if the Court grants the Applicant’s application to make a claim against the Respondent 16 years after the expiry of the prescribed period. Apart from the added difficulty in gathering evidence due to the lapse of time, the Respondent had, as a matter of fact, long since made compensation for the loss of the Applicant, it is entitled to consider that the case was already concluded in 1993.

Conclusion

30.   This Court is of the view that the Applicant has failed to provide or show a reasonable excuse that would make the Court grant his application for extension of time, thereby allowing him to proceed with the claim or appeal. In light of the above reasons, this Court is of the view that Judge Leung’s decision is correct. This Court dismisses the appeal. 

Cost

31.   After considering all the facts of the case, this Court makes a costs order nisi that the parties shall each bear their own costs.