FUNG SIU CHEUNG DUFF v. HOUSE OF TALENT LTD

DCEC 615/2022

[2024] HKDC 1071

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 615 OF 2022

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IN THE MATTER OF AN APPLICATION BETWEEN

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REASONS FOR DECISION

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INTRODUCTION

1.  This is an employees compensation action. The Applicant, then an employee of the Respondent, allegedly met with a slip and fall accident and sustained injury to his left elbow and knee (“the Injury”) at the male toilet of his workplace (“the Restaurant”) on 19 August 2021 just before mid-night at around 23:50 hours (“the Accident”). The Respondent disputed both liability and quantum, but has delayed in seeking to appeal against the relevant Employees’ Compensation (Ordinary Assessment) Board (Form 7) by around five months.

2.  Before me are two summonses, both filed on 24 May 2024, respectively for inter alia:

(a) Leave to the Respondent to appeal against the Certificate of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board (Form 7) dated 28 December 2022 (“Form 7”) out of time, together with retrospective leave to the Respondent to file the Notice of Appeal filed and served on 30 November 2023 (“the Appeal Out-of-time Application”);

(b) Leave to the Respondent to adduce expert medical evidence in this action (“the Expert Application”);

(c) An order for the Applicant to file and serve a List of Documents to make discovery of full medical consultation notes, records and reports of all the medical treatments received by the Applicant from various hospitals/clinics attended by the Applicant from 20 August 2021 up to and including 4 November 2022 within 14 days of the order (“the Discovery Application”).

(collectively, “the Summonses”)

3.  The Summonses were supported by the Affirmations of Ms Kwok Po Tai, solicitor of Winnie Leung & Co having conduct of the action on behalf of the Respondent. At the hearing, those representing the Applicant confirmed that:

(a) the Applicant did not and does not seek to file any evidence in opposition of the Summonses;

(b) this hearing shall be treated as the substantive hearing of the Summonses;

(c) if and in the eventuality that the Court grants leave under the Appeal Out-of-time Application, the Applicant does not object to the Expert Application and the Discovery Application[1].

4.  Upon such confirmations by the Applicant’s solicitors, and upon hearing parties’ submissions, I made the following orders, indicating that I shall hand down my reasons on a later date:

(a) I granted leave under the Appeal Out-of-time Application;

(b) I granted leave under the Expert Application;

(c) I made order-in-terms of the Discovery Application, save that the time for compliance by the Applicant is within 21 days (instead of 14) of the order;

(d) In terms of costs:

(i) Costs under the Summons for the Discovery Application shall be to the Respondent, to be taxed if not agreed;

(ii) Costs under the Summons for the Appeal Out-of-time Application and the Expert Application shall be in the cause of the Action.

5.  Below are my reasons.

BACKGROUND

6.  The Respondent, as shown in solicitors’ correspondences between parties, disputed both liability and quantum. It is the Respondent’s case that:

(a) the Accident did not occur and the Applicant did not suffer the Injury as alleged, and the Respondent will reply on the CCTV footage and/or captures thereof;

(b) the Applicant only reported the Accident to the Respondent on 21 August 2021 after he received a notice of dismissal from the Respondent due to his unsatisfactory work performance on 20 August 2021. There is also a question as to whether the Applicant attended medical attention for the first time due to the Injury and/or the Accident before or after such dismissal;

(c) there are potentially inconsistencies between the medical records considered in the Form 7 assessment and the medical records sought under the Discovery Application which the Applicant has refused to produce despite the Respondent’s repeated requests.

7.  The relevant procedural background, which the Applicant did not seek to dispute and confirmed will not adduce evidence to oppose, are as follows:

(a) On 25 April 2022, the Employees Compensation Application was filed;

(b) In or around June to October 2022, the Respondent’s solicitors wrote various letters to the Applicant’s solicitors seeking discovery for, inter alia, medical consultation notes and records of the Applicant’s medical treatments received from various hospitals and/or medical centres;

(c) On various dates in or around October 2022, the Respondent by solicitors’ correspondence inter alia made clear to the Applicants that the Respondent denies the Accident occurred, disclosed to the Applicant CCTV footage captures (which the Respondent says is evidence against the Accident having occurred), and asking the Applicant to wholly discontinue this Action;

(d) On 28 December 2022, the Form 7 was issued, thus under s. 18(2) of the Employees’ Compensation Ordinance (Cap. 282) (“ ECO”) the deadline for appeal against the same is within 6 months i.e. by 28 June 2023, provided that the Court may extend the time for such appeal. The Form 7 stated the following:

(i) the date(s) of assessment was 14/12/2022;

(ii) the injury: “multiple injuries resulting in (i) left elbow pain (1%); (ii) left knee pain (1%)”;

(iii) period(s) of absence from duty necessary as a result of the injury: From 20/09/2021 to 04/11/2022;

(iv) loss of earning capacity permanently caused by the injury: **2%;

(v) As is usual in the form of such certificate of assessment, the Form 7 contains a remark: “the Board only assesses the quantum of damages of the injury and does not arbitrate any dispute about liability for compensation. The final adjudication rests with the Court”.

(e) From 28 December 2022 to November 2023, according to the Respondent, parties’ solicitors continued to engage in negotiations and/or correspondence, with the Respondent asking the Applicant to withdraw the case entirely and the Applicant not, or not constructively, responding. According to the Respondent’s solicitors Ms Kwok, her efforts in such negotiations occupied her attention, which led to her inadvertently letting the appeal time-limit slip her mind;

(f) On 30 November 2023, the Respondent filed and served its Notice of Appeal against the Form 7 (“the Notice of Appeal”). Given the original deadline for appeal falls on 28 June 2023, the Notice of Appeal was around 5 months late.[2];

(g) On 13 March 2024, the Respondent’s solicitors in their draft “Joint Appendix D” under paragraph 17 “Is there any appeal to the Court against any decision or assessment of the Board?” wrote “The Applicant has not appealed to this Honourable Court but the Respondent has filed a Notice of Appeal on 30^th November 2023.”, No objection was raised to such Notice of Appeal by the Respondent;

(h) Between November 2023 to April 2024, the Applicant did not raise any objections to the Notice of Appeal being filed out of time. Parties’ solicitors continued to file respective list of documents;

(i) On 2 April 2024, the Respondent by solicitors’ letter requested the Applicant to inter alia answer certain questions regarding liability and quantum and provide full medical consultation notes and records of your client’s medical treatments received from various hospitals/clinics/medical centres the Applicant allegedly attended for the Injury;

(j) On 5 April 2024, the Respondent by solicitors’ letter gave its comments on the Applicant’s draft “Joint Appendix D” and proposed directions for consent. Para 17 of the “Joint Appendix D” remains the same as in the draft sent by the Applicant on 13 March 2024. The draft directions for consent included inter alia directions for (i) discovery by the Applicant of medical records, (ii) appointment of medical expert nominated by the Respondent and examination of the Applicant by such expert, (iii) adducing of medical expert report;

(k) On 2 May 2024, the Respondent referred to the 5 April 2024 letter and again requested engrossment of the draft “Joint Appendix D” and the draft consent summons for directions;

(l) On 3 May 2024, the Applicant for the first time on correspondence requested the Respondent to withdraw the Notice of Appeal on the basis that the same was filed out of time and thus defective;

(m) On 24 May 2024, the Summonses were taken out.

8.  The Respondent was thus 5 months late in filing the Notice of Appeal. The question for this Court is whether leave should be granted for extension of time. The above procedural background is relevant as they go into the Court’s exercise of its discretion under s 18(2) of the ECO, as explained below.

LEGALl PRINCIPLES

9.  S 18(2) of the ECO provides that:

“No appeal shall lie after the expiry of 6 months from the date of the decision or, in the case of an assessment, of the date of issue of the relevant certificate under section 16A, 16F, 16G or 16GA, as the case may be:

Provided that the Court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that the time has elapsed.” (emphasis added)

10.  There is no dispute that Chung Sau Ling v Million Join Ltd [2003] 4 HKC 561 is the binding authority on how the Court should exercise its discretion for extension of time applications under s 18(2) of the ECO. In particular, Cheung JA held at paragraphs 16 and 17:

“the proviso to section 18(2) enables the court "if it thinks fit" to extend the time of appeal. In order to enable the court to exercise its discretion it has to be provided with all relevant factors including the length of delay, the reason for the delay and the prejudice to the other party if the extension is granted and the merits of the application as well.

This Court in Chan Kit v. Sam Wo Industrial Manufactory [1989] 1 HKC 115 has clearly stated that the nature of an section 18 appeal is by way of a re-hearing. This, however, does not mean that the respondent is not required to explain the delay particularly a delay as long as two years. This together with the other factors that I have stated will enable the court to decide whether the overall justice of the case requires an extension of time to appeal to be granted. The point to note is that the Court will not go into detailed arguments on these various factors but for a start, the party applying for an extension of time must present these matters for the court's consideration. In so far as Yung King held that an explanation for the delay is not necessary then it is wrong.”

11.  Chung Sau Ling has been applied in Gina Louise Porter v The Hong Kong Jockey Club DCEC 1211/2007, Judge HC Wong, 21.1.2008, unrep. In the same case, it was found that a delay of six months, coupled with the applicant needing to cope with her injury, her work and her recent losing of her job, were sufficient grounds for the delay. Taking into consideration that there was little or no prejudice on the respondent, the Court granted the application for appeal against assessment out of time.

ANALSIS AND MERITS OF THE APPEAL OUT-OF TIME APPLICATION

12.  In light of the legal principles as summarized above, the factors relevant to the Court’s exercising of its discretion in considering the Appeal Out-of-time Application include the following, which I shall consider in turn:

(a) Length of delay;

(b) Reason for the delay;

(c) The Merits of the Application;

(d) Prejudice to the other party if the extension was granted.

LENGTH OF AND REASON FOR DELAY

13.  The length of delay, as mentioned, is of 5 months. Whilst each case has to be considered in its own context and circumstances, I do take into account that in Gina Louise Porter a 6 months’ delay was not considered inordinate. I take note also that the Respondent’s intention to dispute both liability and quantum was made crystal clear to the Applicant very early on and long before the deadline has passed.

14.  As for the reason for the delay, Ms Kwok, who is the handling solicitor of the case at the Respondent’s solicitors firm and who appeared before me at the hearing, was candid. She made it clear in her affirmation, and again orally, that whilst she and her firm have always intended to appeal against the Form 7, she was vexed with the workload in (i) chasing for discovery of medical records and/or answers from the Applicant, and (ii) negotiating with and urging the Applicant to wholly discontinue this action. According to Ms Kwok, this was met with silence and/or lack of constructive response from the Applicant’s solicitors, and this process occupied much of the time between December 2022 to November 2023. The deadline slipped out of her mind, and the delay was caused due to her oversight.

15.  The Applicant’s only line of objection boils down to stating to the effect that “the deadline has passed, and the Respondent’s solicitors should have been more careful”. When asked whether the Applicant can confirm there was such long period of negotiation between solicitors between December 2022 to November 2023 (without needing to mention what the contents of such negotiation may be), the Applicant’s solicitors at the hearing simply stated in response that they are “not in a position to confirm”. No answer has been proffered regarding the Respondent’s suggestion that the Applicant also contributed (albeit indirectly) to the delay through their lack of any or any constructive reply.

16.  I am satisfied that the Respondent has, given the circumstances of this case, shown sufficient grounds for the delay, and the delay of five months was not inordinate. I also find that the Respondent acted sufficiently diligently upon realizing that the Applicant takes issue with the Notice of Appeal being out of time by taking out this application.

MERITS OF THE APPLICATION

17.  As this is not the substantive hearing of the Appeal of the Form 7 and I do not have the full evidence before me, it is not my position to and I shall not prejudge the matter when it comes to the merits of the Respondent’s appeal proper. It suffices to say at this stage that, with the limited material before me, the Respondent’s appeal does not appear to be entirely without merits given inter alia the following:

(a) The Applicant’s apparent unwillingness without reason to disclose the various medical records sought under the Discovery Application up to today;

(b) The Respondent’s early disclosure to the Applicant of apparent CCTV footage (and/or captures thereof)[3];

(c) The Applicant’s lack of real arguments at this stage suggesting that the Respondent’s dispute on quantum is without merits;

(d) The pending medical expert examination of the Applicant, which presumably would shed more light to the full extent of injury (if any) and the cause of the same.

18.  Regarding the merits of the application (as well as costs regarding the Discovery Application), despite saying they do not have much objections, the Applicant at the hearing suggested that medical records and/or expert evidence may not be too relevant to the Form 7 appeal proper. According to the Applicant, this is because “sick-leave certificates have been provided to and considered by the Employees’ Compensation (Ordinary Assessment) Board”, and the Court shall be bound by such assessment. I reject such argument. Sick-leave certificates, whilst relevant, are obviously not substitutes to:

(a) medical examination and treatment records compiled by those attending to the patient at or around the time of the Accident, which may shed more light on the alleged condition at the time; and/or

(b) medical expert report prepared having read such medical records, after proper examination of the Applicant, and with his duty to the court, and with requisite declarations in compliance with the relevant code of conduct. See: Rules of the District Court, Order 38, rule 37C.

PREJUDICE TO THE APPLICANT

19.  I am not convinced that the Applicant suffered from any or any substantial prejudice by the delay of five months.

20.  The first obvious reason is that the Applicant’s solicitors, despite my express invitation to consider whether to file any evidence to suggest inter alia prejudice suffered by the Applicant, indicated they do not wish to so file. Nor have they identified through arguments any specific prejudice suffered.

21.  Second, as shown in the procedural background detailed above:

(a) The Respondent’s intention to dispute both liability and quantum has been crystal clear to the Applicant all along;

(b) Parties have been actively engaging in correspondence, negotiation and/or preparation work for the proceedings as if the delay has not occurred and/or was not consequential;

(c) From the material before me, no substantive work by the Applicant appears to have been wasted during the period of delay;

(d) Up to around 2 months before the taking out of the Summonses, Applicant’s solicitors in their draft “Joint Appendix D” mentioned the Notice of Appeal still without mentioning any objections to it having been filed out of time, and parties still proceeded with trying to agree on directions of the Action.

22.  Further, the Applicant’s side appears themselves to be unnecessarily dragging their feet in terms of progress of the proceedings. This necessitated the Expert Application and Discovery Application to be brought, only for the Applicant to then come before me saying they in fact have no real objections. If there be any prejudice caused by the Respondent’s delay (which I find there is little or none), prejudice has similarly been caused by the Applicant to the Respondent. I note that the list of factors in Chung Sau Ling were not meant to be exhaustive, and I take the view that the Applicant’s own lack of diligence in conduct of the proceedings, which directly or indirectly contributed to the delay, is a matter that I can take into account in the Court’s exercise of its discretion.

CONCLUSION ON THE SUMMONSES

23.  For the above reasons, taking into account the overall circumstances of the case and the factors stated above, I exercise my discretion to allow the Appeal Out-of-time Application.

24.  I would have found in any event that the Expert Application and the Discovery Application are meritorious. The Applicant’s solicitors confirmed that if I grant the Appeal Out-of-time Application, the Applicant has no objections to the Expert Application and the Discovery Application. It thus becomes unnecessary for me to give detailed reasons for my orders under the Expert Application and the Discovery Application as stated at paragraph 4 above, save to say that medical expert evidence and the medical records so requested for discovery are relevant and necessary to both liability and quantum.

COSTS

25.  With regards costs of the Discovery Application, I have no difficulty in ordering costs to be to the Respondent, to be taxed if not agreed. The Respondent has all along repeatedly requested the Applicant to make discovery of the medical records from the hospitals/clinics/medical centres the Applicant attended, which are obviously relevant (despite attempts by the Applicant to suggest the contrary). The Applicant has simply ignored such request with no good reasons.

26.  Costs of the Expert Application shall be in the cause of the Action.

27.  As for costs for the Appeal Out-of-time Application:

(a) The merits of the Appeal Out-of-time Application should have been obvious, especially in light of the fact that the Applicant eventually did not intend to file any evidence in opposition. If the Applicant has taken a pragmatic approach by agreeing to the same at an earlier stage then this hearing would not have been necessary. The Applicant also sat idly by all along and only raised the issue of the delay of the Notice of Appeal recently;

(b) On the other hand, at the end of the day the Respondent was the one seeking indulgence of the Court for the delay which the Respondent’s solicitors candidly admitted was caused through their inadvertence;

(c) Given the above, both sides share some blame for the hearing being necessitated today and the costs so incurred. The fair order in my view would be for costs to be in the cause of the Action, and I so order.