Lam Kwong-yick v. Hsin Chong Construction Co Ltd

DCEC000067/1976

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

WORKMEN'S COMPENSATION CASE NO. 67 OF 1976

-----------------

In the matter of an Application between -

-----------------

Coram: B.L. Jones, D.J.

Date of Judgment: 2nd December, 1976.

-----------------

JUDGMENT

-----------------

1. This is an application for compensation under section 9 and 10 of the Workmen's Compensation Ordinance. On the 5th July, 1975 the applicant during the course of his employment as a labourer fell down when moving some wooden planks and suffered injuries to his neck. He received 154 days sick leave from the date of the accident until the 5th December, 1976. Permanentdisability was assessed at 3%. The applicant's earnings per day amounted to $42.

2. On the 9th December, 1975 the parties entered into a written agreement whereby the applicant accepted the sum of $6,126.40 in full discharge of all claims to compensation under the ordinance except those provided for by section 36B if applicable. The agreement was approved by the Commissioner for Labour on the 6th January, 1976, but was not made an order of the court under section 17(4) of the ordinance.

3. The present application was filed on the 19th July, 1976 two weeks outside the time limit of 12 months provided by section 14, but this matter is not in issue. However, two preliminary objections have been made on behalf of the respondent.

4. The first is that the application is time barred by virtue of section 17(5) which reads as follows:-

The sub-section then lists three grounds upon which the court may cancel an agreement.

5. Mr. Pirie who appeared for the respondent argued that the effect of the present application which was filed thirteen days after the expiry of the 6 months period is to seek to cancel the agreement made between the parties, and for the court to make a fresh award. On the other hand Mr. White for the applicant submitted that sub-section 5 only applies to the employer and the Commissioner, but not to the employee. However, I am unable to accept this argument for the words in the sub-section clearly state 'on application by any party thereto'.

Although it has not been conceded by the applicant and the application is not couched in words to cancel the agreement it is abundantly clear that this is the true nature of the proceedings.

6. The agreement having been sanctioned by the Commissioner on the 6th January, 1976 enabled the applicant to lodge his application for cancellation within 6 months. Although it is not in dispute that there was no reasonable excuse for the late filing of the application Mr. White submits that the court is entitled to exercise its discretion to extend the time limit. He referred to section 14(4) which gives the court a discretion with regard to the late filing of an application for compensation. However, no such discretion is provided by section 17.

7. I am unable to invoke the court's powers to grant an extension under Order 3 Rule 5 of the Rules of the Supreme Court for section 21 of the ordinance expressly provides that they are to be subject to the provisions of the ordinance. Mr. White contended that as the applicant's physical condition has deteriorated since the date of the agreement, the amount of compensation agreed upon contravenes the provisions of section 17(1) for it is less than the amount payable under the ordinance with the result that the agreement is not binding. This may well be the position to-day, but in my opinion the words of the section mean the amount agreed upon at the time of the signing of the agreement not at some indeterminate date in the future. The compensation was calculated in accordance with section 10(1) which takes account of the probable duration and probable changes in the degree of incapacity.

8. The agreement therefore became binding on the parties when the Commissioner signified his approval by signing on the 6th January, 1976 subject to any application that might be made under section 17(5). Section 19 of the Interpretation and General Clauses Ordinance provides that an ordinance shall receive a fair and liberal construction and interpretation. Undoubtedly the time limit imposed by section 17(5) may well cause hardship to an applicant in some cases and perhaps to a respondent. In this case the applicant is only a matter of days outside the time limit so that the respondent would probably not be unduly prejudiced. This would be in contrast to the reopening of a case which had been settled years earlier which is obviously undesirable. Nevertheless it is clear that it was the intention of the legislature to bring finality to agreements expeditiously. It is then incumbent upon the parties to observe the time limit imposed under section 17(5) which is mandatory. In the circumstances I have come to the conclusion that the court has no power to extend the time limit provided by section 17(5). Further the District Court has no inherent jurisdiction to extend the time limit.

9. The second ground of objection is to an application for a review by the court under section 19 which relates to a periodical payment. The section makes no reference to a review of a lump sum. Although the compensation was paid to the applicant by way of a lump sum Mr. White has argued that it can be the subject of review under section 19 for it was calculated under section 10(1) whereby sick leave payments are in fact periodical payments. I find no merit in this argument for section 19 is concerned with the mode of payment not with the method of calculation. A payment is either made as a periodical payment or it is made as in this case by way of a lump sum. In the absence of a provision to review a lump sum I hold that the court cannot interfere with the amount of compensation agreed between the parties.

10. Both objections are accordingly allowed. The application is therefore dismissed. Costs to the respondent on the upper scale with a certificate from counsel.

Representation:

Mr. White of Legal Aid Department for Applicant.

Mr. Pirie instructed by Hastings & Co. for Respondent.