HUSSAIN MOHABAT v. 大山公司 (建築材料)

DCEC 1060/2016

[2018] HKDC 355

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1060 OF 2016

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D E C I S I O N

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A.　INTRODUCTION

1.  Proceedings for the recovery of compensation shall be, pursuant to s.14(1) of the Employees’ Compensation Ordinance (“ECO”) commenced within the prescribed time limit of 24 months, unless a court, pursuant to s.14(4), “is satisfied that there was reasonable excuse for the failure … to make an application”.

2.  Mr Hussain Mohabat (“Mr Hussain”), a Pakistani, met an accident (“Accident”) on 29 November 1996 (“Accident Date”) in the course of and arising from his employment with a Tai Shan Company (“大山公司”).

3.  On 25 May 2016, about 20 years after the Accident, Mr Hussain, acting in person, filed a home-made application in Chinese for employees’ compensation against “大山公司 (建築材料)” (which, according to the business registration record, should be “大山建材有限公司”, “Tai Shan Building Materials Limited”), the respondent.

4.  Mr Hussain was therefore late by 17 and ½ years, and he shall, by s.14(4) ECO, be required to satisfy this court there was reasonable excuse for this delay.

5.  Mr Hussain speaks Punjabi. His daughter, who can speak and write Chinese and attended some of the hearings, informed this court that she prepared all the documents in these proceedings for Mr Hussain. Despite the considerable assistance that Mr Hussain’s daughter rendered to Mr Hussain, this court nonetheless had arranged an English / Punjabi interpreter at the hearings. Hence, this judgment is in English. An English / Punjabi interpreter will be arranged to interpret this judgment to Mr Hussain at the time of the handing down of this judgment.

B.　SUING A WRONG PARTY

6.  Before the first directions hearing, this court received a letter written in Chinese dated 25 October 2016 from a Mr Kwok Chung Shing, a director of the respondent.  Annexed to the letter are records of business registrations in respect of: (i) the respondent, (ii) a Tai Shan Company, and (iii) a cessation of registration record, also in the name of Tai Shan Company.

7.  It the letter, Mr Kwok provided the following information to this court:

(1) Mr Kwok believed that at the time of the Accident, Mr Hussain was an employee of Tai Shan Company of his father, Kwok Yip Choi, who was its sole proprietor. His father died on 15 May 2007. Hence, the business of his father’s Tai Shan Company also ceased on the same date. Mr Kwok enclosed a record of cessation of business that verifies the cessation of Tai Shan Company owned by his late father.

(2) On 1 October 2007, Mr Kwok set up a new firm by using the same name as his late father’s, Tai Shan Company. 

(3) Additionally, Mr Kwok also incorporated the respondent to mainly carry out the business of his Tai Shan Company. Hence, Mr Kwok’s Tai Shan Company has since become inactive.

(4) Mr Kwok stated that although he was also an employee of his father’s Tai Shan Company at the material time, he had very little recollection of the alleged Accident. He could not verify whether Mr Hussain was his late father’s employee because the firm’s staff records were already discarded after his father’s Tai Shan Company ceased business.

8.  Mr Kwok only attended the first directions hearing to inform this court about the cessation of business of his father’s Tai Shan Company. Since that hearing, the respondent did not participate in the proceedings.

9.  Based on the information Mr Kowk provided, which is borne out by the documents enclosed with his letter, it would appear that Mr Hussain’s employer on the Accident Date was not the respondent, but a Tai Shan company of which the sole-proprietor was Mr Kowk’s late father.

10.  Hence, apart from the s.14(4) ECO requirement that he needs to satisfy, Mr Hussain will additionally be required to rectify the error regarding the proper party to be sued. It would appear that the proper respondent should have been “the personal representative of the estate of Kwok Yip Choi, the deceased, formerly trading as Tai Shan Company”.

C.　THE SUMMONS

11.  To make good his case, Mr Hussain later filed a summons (“Summons”) on 3 January 2017 to apply for (i) amending the name of the respondent by substituting it with “大山公司” (“Tai Shan Company”); and (ii) providing explanation for the delay (which I take it to be for leave to commence these proceedings out of time, and it will be so regarded).

12.  Mr Hussain’s application for the substitution of the name of the respondent by a new party “大山公司” (“Tai Shan Company”), even if it were granted, will not remedy the problem about having sued the wrong party.  In any event, since the substitution of party application will only need to be determined in the event that Mr Hussain were allowed to commence these proceedings out of time, I should therefore deal with this question first.  

D.　RELEVANT GUIDELINES

13.  In considering what factors will constitute “reasonable excuse”, the Court of Appeal in Tsang Loi Fat (曾來發) v Sun Fook Kong (formerly known as Sung Foo Kee Ltd) (新福港 (前名為孫福記營造有限公司))[1] listed a number of factors at paras [11] to [13]:

(a) the age, education level, intelligence and background of the claimant;

(b) whether a claimant has sufficient knowledge for the making of a claim;

(c) whether a claimant’s failure to make the claim within the prescribed time is due to his illness or not being aware of the extent of his injury; and

(d) whether the failure was induced by the conduct of others.

14.  The Court in Tsang Loi Fat further emphasized that these factors it listed are non-exhaustive. Hence, I do not think that this court needs to be constrained from considering other factors not mentioned in Tsang Loi Fat should such factors be relevant.

15.  I will bear these guidelines in mind when considering whether Mr Hussain has reasonable reason for the delay.

E.　REASONS FOR THE DELAY

E.1　The evidence

16.  The Summons was initially supported by Mr Hussain’s affirmation (“Affirmation”) dated 13 January 2017 by way of exhibiting a two-page letter together with an MRI examination report of Mr Hussain’s lumbar spine (“MRI Report”) (in duplicate) dated 24 October 2009 from Caritas Medical Centre (“Caritas”).

17.  After the first hearing of the Summons, Mr Hussain was granted leave to adduce further evidence to enable him to produce medical reports and treatment records from Caritas as well as documents relating to the compensation that Mr Hussain received for the Accident.  Mr Hussain subsequently filed, on this occasion, an affidavit (“Affidavit”) dated 2 January 2018. In spite of the fact there are only three exhibits (Exhs. “(A1)”, “(A2)” and “(B)”) to the Affidavit, they total more than 400 pages.

18.  Worse still, these voluminous exhibits are not arranged in any chronological order. Apart from Exh. “(B)”, a letter from the Labour Department consisting of one page, the rest of the exhibits which are mostly treatment records from Caritas, are in a chaotic jumble. For easy identification in this judgment, I have taken the liberty of asking my clerk to paginate the Affidavit and its exhibits, which total 434 pages.

19.  The discussion below is largely taken from Mr Hussain’s evidence and his further elaboration at the hearings.

E.2　The explanations

E.2.1　Personal background 

20.  Mr Hussain used to live in Pakistan before he came to Hong Kong to join his family in 1991 as a 19-year-old young man.  He received 6 years’ education and used to work as a construction worker in Pakistan. 

21.  After he came to Hong Kong, he worked mostly for Chinese employers, as a general labourer.  When he met the Accident, he had worked for the former Tai Shan Company for around six months. His understanding of the local dialect, Cantonese, is very limited.

E.2.2　The injuries

22.  The injury that Mr Hussain sustained from the Accident was a fracture to the right big toe after the metal gate which he was carrying with his co-worker fell upon his toe.

23.  The fractured toe required an operation involving the insertion of a metal screw. For the injuries, Mr Hussain told me that he was granted sick leave of about 7 months.

24.  After his sick leave expired, Mr Hussain said that he resumed working for the same employer but was dismissed one or two months later.  Since the dismissal, Mr Hussain has not engaged in any gainful employment but has been living on social security.

E.2.3　Compensation received

25.  For the toe injury, the Labour Department initially assessed the percentage loss of earning capacity at 1.5 percent. After the “screw-insertion”, i.e., fusion operation (see para 39 below), the percentage was adjusted upwards to 3 percent.    

26.  After the revised assessment, Mr Hussain said he was then paid compensation for the Accident in a total sum of about $60,000 to $70,000.  He said at that time he regarded the matter as concluded.

E.2.4　Subsequent discovery of injury

27.  Mr Hussain has dealt with this in two letters in Chinese written by his daughter. The first letter is dated 25 May 2016, which is enclosed with the employees’ compensation application, and the second letter is dated 12 January 2017, which is exhibited to the Affirmation.

28.  In the second letter, it was stated that Mr Hussain first learnt that his back pain was caused by the Accident after the MRI of his lumbar spine on 17 October 2009.

29.  In the MRI Report, it was diagnosed that Mr Hussain had a “spinal claudication” (meaning limping). The doctor allegedly told him that the condition was serious and that it was going to be permanent. Mr Hussain stated that only by that stage did he realize that the Accident had also caused him back injuries that he did not know about at the time of the Accident.

30.  Mr Hussain then stated in both of the letters that in a consultation at Caritas on 24 May 2016, the doctor told him that his back condition was serious, and advised him to seek employees’ compensation.

E.2.5　Explanations for not instituting proceedings after he had knowledge of the back injuries in 2009

31.  In his second letter, Mr Hussain explained that he did not institute proceedings to seek compensation for the back injuries when he learnt of them in 2009 because he had no financial means to engage solicitors nor did he have any friends who could help him to make a claim. 

32.  Yet, Mr Hussain only instituted these proceedings after his medical consultation on 24 May 2016 for the alleged reason that his daughter was then able to assist him.

E.3　Summary of the reasons for the delay

33.  According to the evidence Mr Hussain adduced and the elaborations that Mr Hussain further made in the hearings, two broad reasons can be identified. 

34.  Firstly, Mr Hussain is a man of limited financial means with low education level.  These coupled with Mr Hussain’s lack of sufficient understanding of Cantonese have delayed his pursuance of his legal rights.

35.  Secondly, the additional back injury that he had attributed to the Accident was only discovered 13 years later, in 2009.

36.  Since these proceedings are premised upon an allegation of a discovery of subsequent back injury, it is necessary to, before deciding whether reasonable excuse was shown, determine first and the foremost whether Mr Hussain has sufficient evidence to show that the back injury was an injury caused by the Accident.

F.　WAS THE LATER BACK INJURY CAUSED BY THE ACCIDENT?

F.1　Caritas reports in November 2017

37.  The two medical reports respectively dated 2 and 8 November 2017[2] (which are jointly referred to as the “2017 Reports”) exhibited to the Affidavit give a very useful summary of Mr Hussain’s past medical condition .

Re. the injury on the Accident Date

38.  Mr Hussain was found to have suffered an injury of “open fracture of right toe proximal phalange” on the Accident Date.  The injury was treated by “open reduction and K-wire fixation”, which K-wire was later removed on 18 December 1996.

39.  On 1 December 1997, “a fusion of the interphalangeal joint of [the] right toe” was carried out.

40.  Mr Hussain was reported to have pain over the right big toe despite the fusion operation. However, an x-ray taken in March 2008 did not disclose any abnormality.

Re. epileptic attack

41.  Mr Hussain suffered from epilepsy, which tendency was first presented to Caritas in May 1999.  He suffered a seizure in February 2000, and was prescribed drugs to control the seizure, and had intermittent muscle twitching afterwards. He was believed to have poor drug compliance.

42.  In November 2005, Mr Hussain had another epileptic attack.

Re.  the back pain

43.  On 13 February 2009, Mr Hussain complained of low back pain, and was found to have diffuse spinal tenderness. The MRI of the lumbar spine done on 17 October 2009 “showed anterior wedging of L1 (from previous compression fracture), posterior disc protrusion at L4/L5 with central spinal stenosis”.

F.2　No evidence that the later back injury was caused by the Accident

44.  According to the medical records and notes that I have laboriously sifted through from the disorganized documents exhibited to the Affidavit, I am unable to find any evidence to support Mr Hussain’s allegation that the back injury that he first discovered in 2009 was related to the Accident. According to the 2017 Reports, Mr Hussain sustained a fracture right big toe from the Accident. There was no diagnosis of any back injury.  The diagnosis of Mr Hussain’s injury was further corroborated by the injury found by the Labour Department’s Medical Assessment Board (“MAB”) contained in the letter dated 16 November 2017 (Exh “(B)”[3] to the Affidavit) which describes his injury as: “Foot, inc heel, OsCalcis, MT, toe”.

45.  The medical notes show that Mr Hussain persistently suffered residual pain on his toe after the “fusion” operation. This perhaps explains why Mr Hussain said that since the Accident, he still required on-going follow-up treatments.

46.  Significant to note is that the detection of Mr Hussain’s spinal problem was only made after his diagnosis of his epileptic seizure in around 1999.  Mr Hussain also stated at the hearing that he had fainted many times due to his epileptic seizures since 1999. In fact, according to the available medical records for the period between 1999[4] and up to at least 2006[5], Mr Hussain was inflicted with epilepsy seizures, and his drug compliance was poor[6].

47.  These falls, in my view, might have either caused his back problem or worsened his pre-existing spinal injury (which he seems to have, see para 48 below).  It is likely that Mr Hussain’s back was injured in some of those more serious falls, in the fall, for example, on 25 November 2005 during an epileptic attack. For that fall, it was recorded that, according to the consultation summary on 21 December 2005[7], Mr Hussain afterwards suffered lower back pain and pain over the left paraspinal region. Judging by his complaint to the doctor that it was “too painful to go to [the] toilet initially”, I believe the pain brought about by that fall was quite severe.

48.  The mere suggestion of “previous compression fracture” in the MRI Report cannot, in my view, support Mr Hussain’s allegation that his spinal problem was caused by the Accident.  From the medical notes that I have trawled through, it would appear that his back pain was quite bad. Hence, had the Accident indeed caused back pain as Mr Hussain is now alleging, it would have likely jogged Mr Hussain’s memory about the Accident so that he would have likely made the connection with the Accident when he first complained of back pain in February 2009[8] (see the 2017 Reports). Instead, he told the doctor in the consultations on 13 February[9] and 8 May 2009[10] that  he  had suffered from back pain for 20 years (which would have been from in or around 1989, i.e. about 7 years before the Accident in 1996). These consultation summaries, in my view, make it inherently improbable that the spinal problem was caused by the Accident as alleged.

49.  Given that Mr Hussain was reported to have started having back pain since 2009, it is most inexplicable, in my view, that he did not there and then attributed it to the Accident. Hence, I believe that it is likely that Mr Hussain’s allegation is an after-thought.

50.  For these reasons, after a careful consideration of the evidence, I am not satisfied that Mr Hussain has adduced evidence in showing that his back pain, the subject alleged injury of these proceedings, was caused by the Accident.

51.  This conclusion, in my view, is sufficient to dispose of the Summons.  For completeness, I should also discuss another important issue in these proceedings, the delay.

G.　WHETHER THERE WAS REASONABLE EXECUSE

G.1　Length of delay

52.  One of the most important considerations that I should take into account is the length of delay. Needless to say, the longer the delay, the more prejudice that may likely be caused to the employer.

53.  An almost 18 years’ delay is, by all account, exceedingly long. Compelling reasons shall be required before this court should exercise its discretion by allowing this claim to proceed.  On the evidence, not only am I unable to find any compelling reasons (as will be seen below), I find that the prejudice that will likely be caused to the employer is grave.

54.  By reason of the death of the sole-proprietor of Tai Shan Company, and by the long lapse of time, the records of the company have already been discarded, as Mr Kwok had informed this court.  With all the employer’s documents having been lost, the estate of the sole-proprietor would find it impossible to deal with Mr Hussain’s allegations.

55.  The prejudice in this case is a weighty consideration, in my judgment, against the granting of leave.

G.2　Mr Hussain’s personal circumstances

56.  Whilst I am satisfied that Mr Hussain is clearly, due to this personal background discussed in Section E.2.1 above, at a disadvantage in the pursuit of his legal rights, I however do not accept that such disadvantage should have brought about such a long delay.  In view of the fact that Mr Hussain had been previously assisted by the Labour Department in being paid the employees’ compensation for the toe injury that he sustained in the Accident, there is no reason for him not to have sought the same assistance from the Labour Department to pursue his legal rights. Mr Hussain had in fact contacted the Labour Department before he instituted these proceedings.   In the circumstances, I am not satisfied that his lack of language skill and low education level amount to a reasonable excuse.

G.3　The further back injury was discovered late

57.  Irrespective of my conclusion in Section F that the back injury was not related to the Accident, I am also of the view that Mr Hussain has failed to provide reasonable excuse for the 7-years’ delay for the institution of these proceedings after his alleged knowledge of his condition.

58.  When Mr Hussain was allegedly advised by a doctor in October 2009 that his back injury was related to the Accident, it was already 13 years after the Accident.  Were he genuinely serious about his claim for employees’ compensation, Mr Hussain would have realized that urgent action would be needed to be taken. Yet, he waited for a further 7 years until after the consultation in May 2016 before commencing these proceedings. The mere explanation that he did not have sufficient knowledge and assistance is, in my view, a wholly insufficient excuse for this substantial delay.

H.　CONCLUSION

59.  Quite apart from the fact that presently Mr Hussain has not sued the correct respondent, and that he does not have evidence to show that his back pain was caused by the Accident, Mr Hussain has failed to satisfy s.14(4) ECO in showing reasonable excuse for his long delay.  Given the severe prejudice that would be caused to the former Tai Shan Company should this court grant leave, I decline to grant leave.

60.  As for Mr Hussain’s application to substitute the respondent by Tai Shan Company, upon my refusal to grant leave, the application will fall by the wayside regardless of the problem that I have already identified in Section B above. I therefore dismiss the Summons in its entirety.

61.  Finally, I ought also to mention that I believe that Mr Hussain’s entitlement to compensation for his Accident was entirely satisfied by his admitted payment of compensation in the region of about $60,000 to $70,000. This is because, from the available information, the amount of compensation he was entitled to is about $61,000 calculated as follows.

62.  At the time of the Accident, Mr Hussain was 25 years of age with monthly earnings of $7,800. Applying the 3%[11] loss of  permanent partial incapacity the MAB assessed ,  Mr Hussain’s compensation for the partial incapacity would have been around $18,000 (according to the ceiling rate that was capped at $18,000 in accordance with the prevailing Sixth Schedule to ECO).

63.  As for his sick leave payments under s.10 ECO, the 7 months’ sick leave Mr Hussain said he had been given would give him a total around $43,680. The total compensation, without taking into account the calculation of the medical expenses (which would have been quite minimal) comes to a total of approximately $61,000.

64.  For the reasons stated above, not only am I not persuaded that Mr Hussain has reasonable excuse for the delay, I consider that the present proceedings are likely to be Mr Hussain’s attempt to reopen the employees’ compensation case that has already been satisfactorily concluded.

65.  In the circumstances, I shall dismiss the Summons.  Upon the dismissal of the Summons, I will further exercise my discretion to strike out these proceedings for the reasons that I have stated above.

I.　ORDER

66.  I make the following orders:

(1) The Summons is dismissed.

(2) This employees’ compensation application is struck out.

(3) There be a costs order nisi that there be no order as to the costs of the Summons and the costs of these proceedings.

(4) The costs order nisi shall stand absolute if no application is made to vary it within 14 days from the date of the handing down of this judgment.