Lam Kwong-yick v. Hsin Chong Construction Co Ltd
Read the full judgment text of CACV 67/1976 on BabelCite. This Court of Appeal judgment.
1. The trial judge treated this application for workman's compensation as though it were an application under s.17(5) of the Ordinance to cancel the agreement in writing made between the employer and the workman as to the compensation to be paid. Counsel for the appellant workman contends that he was wrong in so doing, because the agreement was not, or might not be, one which came within the purview of s.17 at all, and that his client was, by reason of the course which the proceedings followed i
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CACV000067/1976
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----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 19th April 1976. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. The trial judge treated this application for workman's compensation as though it were an application under s.17(5) of the Ordinance to cancel the agreement in writing made between the employer and the workman as to the compensation to be paid. Counsel for the appellant workman contends that he was wrong in so doing, because the agreement was not, or might not be, one which came within the purview of s.17 at all, and that his client was, by reason of the course which the proceedings followed in the court below, prevented from adducing evidence which would have established the foundation for that contention. It is, I think, common ground that, if the agreement was valid (and it is not suggested that the Commissioner's approval given pursuant to the second proviso to sub-s.(1) would render binding or otherwise validate an agreement which was ab initio invalid) and if the judge was justified in treating the application as one to cancel that agreement, then the workman was out of time and his appeal must fail. 2. With respect to the learned judge I think it was unfortunate that he insisted (against the will of the solicitor for the workman) in dealing with the application in a form other than that in which it was presented to him, for it is now apparent, whether or not it was made apparent to the judge, that the workman's advisers formulated the claim after careful deliberation. The workman never sought cancellation of the agreement, because he was advised that the agreement was invalid. What may have obscured the position was that there was no provision in the Workmen's Compensation (Rules of Court) Rules whereby when the employer, as one would expect, set up the agreement in answer to the claim the workman could plead in reply that the agreement was invalid. Nevertheless in the submissions in the court below the solicitor for the workman emphasized that his case was that there was no need to cancel the agreement, because it was void and of no effect. Once it was understood that the workman sought to pursue his claim in the form in which it had been lodged the employer must have been called upon to make good his defence and evidence would, no doubt, have been adduced with a view to showing that the first proviso in sub-s.(1) had been satisfied, i.e. that the compensation agreed upon was not less than the amount payable under the provisions of the Ordinance. Whichever party succeeded on that issue no question of the time limit for an application under sub-s.(5) would have arisen, because no application was made under that section. Neither of the judges who were seised of the case nor the advocates who agreed to the trial of the preliminary issue can have appreciated that the claim was one which as regards the period of limitation, was subject only to s.14. As to the limitation under that section Judge Jones said "this matter is not in issue". The result of treating the application as being something which it was not has been to introduce a question which ought never to have come under consideration, namely whether the time limit fixed by sub-s.(5) could be extended by the court. In deciding that question the trial judge appears to have assumed that the agreement made between the parties was one to which sub-s.(5) applied. Accordingly, whether or not the words "such agreement" in sub-s.(5) have the same meaning as they have in the second proviso to sub-s. (1 ), the fact remains that the judge did not dispose of the argument on behalf of the workman that there was no "such agreement" as was contemplated by either sub-section. The onus of establishing that it was, and that the agreement was an answer to the claim, was upon the employer. If I read the notes of proceedings correctly, counsel for the employer told Judge Doyle at the first hearing that the parties agreed that the application might possibly be dismissed on the point of law, but that cannot in my opinion be taken as an election by the employer not to call evidence. It is significant that even at that stage the solicitor for the workman pointed out that the application was one for workman's compensation. The difficulty is that at the subsequent hearing the court proceeded to a discussion of the proper interpretation of sub-s.(5), which I think not only was, and is, irrelevant but which could not dispose of the application before the court. It seems to me that the only proper course is to allow the appeal and to remit the case to the District Court for the trial of the application. 19th April 1976. Representation: R. Tang (D.L.A.) for appellant Pirie (Hastings & Co.) for respondent |