Leung Kam Sing v. Lee Kei Machinery & Engineering Ltd

DCEC 399/2022

[2022] HKDC 1267

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 399 OF 2022

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before: Deputy District Judge B Mak in Chambers (Paper Disposal)

Date of the Applicant’s submissions: 18 July 2022, 19 & 26 August 2022 & 14 September 2022

Date of the Intended Party’s submissions: 25 August 2022 & 14 September 2022

Date of Decision: 9 November 2022

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DECISION

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Introduction

1.By a summons filed on 8 June 2022, the applicant applied to join In Construction Limited (“ICL”) as the 2^nd respondent.

Factual background

2.The applicant was injured in an accident on 20 March 2020 in the course of employment as a dumper truck driver.

3.The present proceedings were commenced on 4 March 2022.

4.The applicant’s lawyer was informed by the solicitors for the respondent’s letter dated 22 March 2022 (“the letter”) denying the employment relationship and indicated that ICL was the principal contractor concerned.

The applicant’s submission

5.Mr Jack Chan, counsel for the applicant, submitted that the applicant has demonstrated reasonable excuse under section 14(4) of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) for the following reasons:-

(a) the applicant all along believed that the respondent was his direct employer and had no knowledge of the identity of the principal contractor;

(b) taking into account of the applicant is legally aided and the time required for his solicitors to verify the allegation of the respondent, the delay of less than 3 months is short and insignificant; and

(c) no prejudice will be caused to the interest of ICL.

6.Relying on Hong Chun Tai v Yip Kan Kee Contracting Co Ltd [2018] 2 HKLRD 360, Mr Chan submitted that the 2 conditions under Order 15 rule 4 of the Rules of the District Court are satisfied.

ICL’s submission

7.By the affirmation of Wai Chung Kiu Rainbow filed on 17 June 2022, who is a solicitor of the solicitors for ICL, stated on behalf of ICL that the accident did not happen at the construction site of ICL.

8.In the written submission of the solicitors for ICL, it made reference to the Form 2 submitted by the applicant to the Labour Department dated 24 April 2020 and a declaration of the applicant to the Labour Department dated 20 July 2020.

9.The submission also made reference to a record of interview/declaration dated 27 August 2020 and said that the Labour Department did not take any action thereafter.

10.The solicitors for ICL submitted that in or about August 2020, the applicant would have been informed by the Labour Department that the respondent denied the employer/employee relationship with him. Therefore, it cannot be said that the applicant only came to know the respondent’s denial of the employment relationship by the letter.

11.The solicitors for ICL further submitted that after the expiration of the limitation period, the joinder of ICL as 2^nd respondent should not be allowed.

Discussion

12.Section 14 of ECO provides:-

“(1) Except where otherwise provided by this Ordinance, proceedings for the recovery under this Ordinance of compensation for an injury shall not be maintainable … and unless the application for compensation with respect to such accident (being an application to the Court by an employee under section 18A(2)) has been made within 24 months from the occurrence of the accident causing the injury …

…

(4) The Court may receive and determine any application for compensation in any case notwithstanding that the notice required by subsection (1) has not been given, or that the application has not been made in due time as required by that subsection, if it is satisfied that there was reasonable excuse for the failure so to give notice or to make an application, as the case may be.”

13.Tsang Loi Fat v Sun Fook Kong [2011] 4 HKLRD 344 held the following:-

“(1) Whether there was reasonable excuse for an applicant’s failure to apply for employees’ compensation within the prescribed period, required consideration of the reason for the delay; the length of the delay; whether there were sufficient grounds for an award of compensation; and whether an extension of time would cause the respondent prejudice.

(2) Factors relevant to the reason for the delay and whether to grant an extension of time included:

(a) The applicant’s age, education level, intelligence and background;

(b) In general, ignorance of the law was not a reasonable excuse. Where the applicant knew how to make a claim but failed to do so within the prescribed period, there was likely a lack of reasonable explanation for the delay;

(c) The applicant’s health: whether, before the expiry of the prescribed period, he was fully aware of the extent of his injury or he failed to make the claim because of his illness; and

(d) Whether the applicant’s failure to make a claim in time was induced by the conduct of or words said by his employer, insurance company, or a third party.”

14.The applicant was 63 years old at the time of the accident and was educated up to primary 5 level. He has been working as a dumper truck driver on and off for about 30 years and for the respondent since October 2019. All along, he thought he was employed by the respondent and was uncertain as to the status of ICL until the receipt of the letter.

15.I accept that the applicant is a unsophisticated manual labourer. It is not surprising that he was not aware of the identity of the principal contractor in the place he was working. Even if he knew that the respondent was denying employment relationship with him, it does not follow that he would have known the identity of the principal contractor.

16.At any rate, I do not think the delay of less than 3 months is significant and would cause prejudice to ICL. As a matter of fact, ICL is not complaining that allowing the application would cause any prejudice.

17.Finally, I am satisfied that the 2 conditions under Order 15 rule 4 of the Rules of the District Court as identified by the learned Judge in Hong Chun Tak v Yip Kan Kee Contracting Co Ltd [2018] 2 HKLRD 360 are fulfilled. That is to say, that (a) the applicant is seeking compensation against ICL which arose out of the same accident; and (2) the issue of whether ICL should be held liable as principal contractor or in some other capacity is a common question of law or fact that needs to be determined at the trial of these proceedings.

Conclusion and order

18.By reasons of the aforesaid, I am driven to the conclusion that the applicant’s summons should be allowed and I so order.

Costs

19.The present application was made necessary by reason of the information disclosed in the letter. I therefore make a costs order nisi that the costs of this application be costs in the cause with certificate for counsel, to be taxed if not agreed.

20.In the absence of any application for variation by summons within 14 days from the date of this decision, the costs order nisi shall become absolute.

21.The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Postscript

22.In the written submission of the solicitors for ICL, they referred to documents which were not exhibited. As qualified lawyers, they should know that it is inadmissible and unacceptable and should be avoided in future.

Mr Jack Chan, instructed by Cheng & Ng, for the applicant

The respondent was not represented and made no submission

Ms R Wai, of Li, Kwok & Law, for the intended party