Yan Hon Kan v. 文洪模板工程 and Another

DCEC000133/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 133 OF 2001

Coram: H H Judge Carlson in Chambers

Date of Hearing: 29 June 2001

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J U D G M E N T

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1.This is an application for employees' compensation dated 27 February this year relating to an injury at work sustained by the applicant on 5 October 1998. It is therefore an application outside the two year limitation period for making such applications (see section 14(1) of the Employees' Compensation Ordinance), but by virtue of section 14(4) the court may receive and determine any application after the expiry of the two year period if it is satisfied that there has been a reasonable excuse for the failure to make the application within the limitation period.

2.I am now asked by the applicant to exercise that power. He has not had the benefit of legal representation. He says that he is a simple individual without much education from mainland China and that he has no notion of his rights nor of the legal requirements or of the court's procedures. He has filed an affirmation explaining his delay in making the application which is some four and a half months out of time; not a particularly long delay, which I shall have regard to in the applicant's favour.

3.Any person in the applicant's position is bound to have a sympathetic hearing from the court. In the course of the argument I was anxious to establish from him whether there were any additional reasons for his delay. He said that his only reason was that he was unaware of the two year limitation period. He said that when the respondents were paying him sick leave payments, he thought that he had nothing further to do. He was upset when they stopped and it was only then that he decided to look at the matter further and his friend advised him to make this application.

4.I cannot be swayed by feelings of sympathy for the applicant. This is essentially a matter of law. Has he a reasonable excuse or reasonable cause for not having come within the two year period? I do not think that it can be said that the respondents have misled him by paying him and then suddenly turning the tap off. This occurs frequently and this is the reason why the matter would need to go to court for the court to assess compensation.

5.It is also well settled that ignorance of one's right to claim for compensation until after the expiry of the two year period is not to be regarded as a reasonable excuse (see Rolls v Pascall (1911) 1 KB 982 and Judd v Metropolitan Asylum Board (1912) 5 BWCC 420). I regret that the applicant has not shown a reasonable excuse, which he must demonstrate, even though the delay has been relatively short.

6.Accordingly, I refuse to extend time and his application of 27 February this year must stand dismissed. The only advice that I wish to give him is that he still has time to issue proceedings for damages, for negligence or breach of statutory duty at common law, the limitation period there being longer than the two years provided in this jurisdiction, and my advice to him is to go off and make an application for legal aid. His failure to succeed today will in no way reflect on any application that he may make for legal aid and so there is still time for him to protect his position, which I would urge him to do by going to see the Legal Aid Department as soon as possible.

(Discussion re costs)

7.Mr Yan, I am afraid I am going to have to order costs against you. I suspect that you have nothing to fear if you are a man of no means; the respondents are not going to throw good money away after bad trying to enforce an order for costs which they will have no hope in enforcing. So I make that order because you have failed, they have succeeded and the usual rule is that costs follow the event, and it seems to me that this is a clear case where costs should be awarded in their favour.

Representation:

Present: Applicant in person

Ms M Kwan, of Messrs Tsang, Chan & Wong for R1 & R2

Present: Applicant in person

Mr C H Lui, of Messrs Tsang, Chan & Wong for R1 & R2