Kwok Yau-tai v. Tung Wah Group of Hospitals

DCEC000044/2000

DCEC44/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 44 OF 2000

Coram: H H Judge Carlson in Court

Date of Ruling: 11 April 2002

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R U L I N G

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1.In this matter the applicant is out of time in respect of two fundamental aspects of any claim for employees compensation. There are two claims; the first, under section 18A of the Employees Compensation Ordinance, provides for a 2 year limitation, but by virtue of section 14(4), the court may hear and determine an application notwithstanding the expiry of that limitation period provided the applicant can show reasonable excuse for the delay.

2.The other limb of the proposed application is an appeal under section 18(2) against a certificate of review by the Employees Compensation (Ordinary Assessment) Board. Time for lodging such an appeal is restricted to 6 months.

3.I need to deal with these two aspects separately, although the factual background is common to both.

The section 14(4) application

4.The requirement for the applicant to show reasonable excuse for his failure to come within the 2 year period was considered by Judge Charles in this court in 1957 in the case of Wong Man-tak v Shaws & Sons Limited [1957] DCLR 85. At pages 88 and 89 of the report he considered the way in which the expression "reasonable excuse" was to be interpreted.

"A reasonable excuse in the ordinary sense of the phrase means in relation to a failure by an applicant to make his application for compensation within the prescribed period if the failure was due to such cause or causes that it ought, as a matter of reason, to be excused. The phrase thus means the same as the phrase "reasonable cause" which occurred in section 14 of the Workmans Compensation Act 1925 of the United Kingdom. The numerous authorities upon that phrase show that a cause for failure to make claim within the prescribed period was reasonable and therefore excused the failure if it were a reasonable belief on the part of the applicant that his injury was trivial or a mistaken diagnosis of his injury or a belief in the applicant that a claim for compensation was unnecessary when the belief had been induced by the employer in such circumstances as reasonably warranted it or the inability of the applicant to transact business because of his injury. On the other hand, a cause was not reasonable if it were a belief by the applicant that it would be to his interest to defer or not to make a claim. Moreover, an applicant was not excused if he had a reasonable cause which operated only for part of the period. He had to have reasonable causes for the whole period. Thus while an applicant might delay making his claim until the last moment of the prescribed period, he was not entitled to be excused if his last claim was prevented by a reasonable cause unless he could show that he had good reason for not making his claim before that cause arose. Aldridge v Warwickshire Coal Company and Aston v London North Eastern Railway. The principle to be deduced from the foregoing is, I think, that an applicant has a reasonable excuse for not making an application to the court for compensation within the prescribed time if his failure was due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part."

5.This, therefore, is the approach that has been adopted in these courts since that decision.

6.That approach must, therefore, be applied to the facts of the particular case before the court. Every case is different and so it will be rarely helpful to cite the many unreported decisions at first instance for their facts alone.

7.I now turn to consider the facts of this lady's case.

8.This is undoubtedly a stale case. The applicant was injured on 29 October 1997. She will shortly turn 47. She was 42 at the date of the accident. Her employment was as a care attendant at an old peoples home at Wong Chuk Hang. Her case is that she was injured as she was lifting a resident from a wheelchair. She tripped and fell to the ground injuring her hip and lower back. That rather bland recital of the facts hardly does justice to the grave consequences of that fall.

9.She was subsequently given, effectively continuous, certificated sick leave from that date until 3 April 2001, a period of 41/2 years, during which time she has had two operations. Miss Mak, who appears for the respondents to oppose these applications, has very helpfully attached a chronology to her affirmation of 27 March this year.

10.For the first year that she was off work, the matter was being attended to on her behalf by the Labour Department and very properly the respondents were paying her an appropriate amount of sick pay. On 5 October 1998, the board assessed her condition and on 19 October 1998 it issued its certificate of assessment at a very modest 1 per cent permanent loss of earning capacity. On 30 October 1998 she objected, within the 14 day time limit.

11.From 24 November 1998 she began attending the orthopaedic department at Kwong Wah Hospital. Between 30 May 1999 and 24 June 1999 she was hospitalised and a spinal fusion was performed by the surgeons at that hospital on 2 June 1999. Then in late September or early October 1999 the respondents, who had up till then been paying sick pay, informed her that this would stop and that if she required more, she should apply for legal aid. The significance of this is that payment would stop as envisaged under section 10 and that the applicant would have to apply for a discretionary third year extension under section 10(5).

12.Pausing there, Mr Stables, who appears for the applicant, points out, and I think with considerable justification, that while strictly speaking there was nothing up till then to prevent the applicant from applying to the court for compensation, such an application would have been a meaningless and unnecessary exercise. He points out quite rightly that most of these matters tend to be resolved under the auspices of the Labour Department and in this case this is precisely what had taken place.

13.Now the respondents had decided to change their tune, as they were entitled to. She would now have to go to get legal assistance which is what she did. She applied for legal aid within the 2 year period. This was on 12 October 1999. Two days later legal aid was refused because her means exceeded the financial limits under the scheme. She was told that she might come within the alternative supplementary legal aid scheme (SLAS).

14.On 22 October 1999, she attended hospital for an MRI scan. On 28 October 1999, the day before the expiry of the limitation period, she applied for legal aid under SLAS. On 3 November 1999 she was offered legal aid under that scheme. She accepted the offer and on 9 November 1999 a certificate was issued. The Legal Aid Department then entered into correspondence with the respondents concerning further sick leave payments which correspondence took place during the whole of December.

15.Then on 14 January 2000, some 21/2 months out of time, the application under section 18A was filed. One only needs to recite this chronology to understand why this lady did not come to court within the required 2 year period. For 23 months of that period she had no reason to believe that there was going to be an issue over her sick leave payments and the matter was proceeding, as I have described, amicably through the intervention of the Labour Department. Once she was informed that the payments were to stop, she moved with due expedition, if I can describe it in this way, and applied for legal aid which was dealt with, as I have already recounted.

16.I am perfectly satisfied that in the circumstances of this case she has amply demonstrated a reasonable excuse within the meaning of the subsection. I will therefore give her leave to make the application under section 18A.

The appeal under section 18

17.Negotiations followed and although the respondents at first baulked at the thought of making the third year payments and an application was prepared to apply to the court for an appropriate order, the respondents then relented and did pay out all of the third year payments. Mr Stables therefore accepts that this has the effect of extinguishing the applicant's section 10 claim. This leaves over a small element for medical expenses under section 10A.

18.The real issue now is the section 9 claim, the quantum of which will turn on the percentage loss of earnings. I now turn to this.

19.As I have already indicated, the applicant had objected to the original 1 per cent assessment. The review was delayed because her medical condition had failed to stabilise. Dr Wong Wing-cheung's report of 15 September 2000 amply demonstrates that. She underwent major surgery in April 2000. Her condition stabilised in time for a reassessment by the board on 7 March 2001. The board issued its certificate on 21 March 2001 increasing the percentage loss to 7 per cent. Notwithstanding that upward adjustment, the applicant is still dissatisfied.

20.Mr Stables wrote on her behalf to the respondent's solicitors on 26 April 2001 informing them of the applicant's stance and of her intention to appeal that assessment. There was then unavoidable delay because the Legal Aid Department had to get an orthopaedic expert to examine the applicant. There was then further delay because the opinion of an occupational therapist was sought. I am bound to say that given the favourable report of the orthopaedic expert, it is difficult to see why the appeal was not lodged at that stage?

21.This application to appeal is one that is made 4 months out of time. Given the overall history of the matter and the fact that based on the chronology of the first two years I have had little difficulty in allowing the section 18A application to come before the court, and having regard to the fact that early notice of intention to appeal was given, I will allow the requisite amendments to be made to the application so that an appeal can now be brought against the certificate of review.

22.Every case is different but I apprehend that where there is already in place a section 18A application before the court, the question of an appeal out of time against a certificate of review is to be considered, if anything, more generously than under the stricter requirements of a section 14(4) application for extension of time.

23.There is no forensic prejudice in this case. The respondents have been aware of her intention to appeal a month after the certificate was issued. By allowing this amendment, the matter can now proceed under section 9 and be dealt with on its proper merits.

24.Leave to the respondent to file and serve an amended answer within 14 days. Effectively an order in terms of the summons is what must follow from the judgment.

Representation:

Present: Mr Andrew Stables, of the Legal Aid Department, for the Applicant

Ms P Mak, of Messrs Simmons & Simmons, for the Respondent