Lui Wai Yin v. Attorney General

DCEC000311/1991

ECC 311/91

HEADNOTE

Applicant started proceedings for Workmen Compensation.

He wrote to Commissioner for Labour requesting for examination by an assessment board. The Commissioner refused on the ground that he has to be satisfied that the injury has to be employment related and that the Applicant should go for a judicial review.

The Applicant appealled.

Held :

1) Where there is another avenue of appeal courts will not normally grant judicial review;

2) Section 18 of Cap 282 gives the District Court jurisdiction to hear appeals against the decision of the Commissioner for Labour;

3) Section 16D(4) gives the Commissioner a discretion whether to refer an injured worker to the assessment board;

4) It is undesirable to split claims for Workmen Compensation into two parts;

5) Having regard to the circumstances of this case the Commissioner should refer the Applicant to the Assessment Board.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

E.C.C. CASE NO. 311 OF 1991

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BETWEEN

Coram: H. H. Judge W. Wong in Court

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JUDGMENT

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1. On the 25th September 1987 the Applicant alleged that he was injured in the course of his employment with K.M.B. On the 16th November 1987 K.M.B. filed a Form II marked on it the words "without prejudice". On the 17th November 1987 K.M.B. wrote to the Commissioner of Labour saying they were investigating the case. On the 20th November 1989 K.M.B. wrote again to say that there was no witness and could not treat that as an Employees' Compensation case. On the 24th April 1988 by memo the Commissioner for Labour referred the Applicant to the Legal Aid Department.

2. An application under the Employees' Compensation being T.W.E.C.C. No. 53 of 1989 was issued on the 13th June 1989 against K.M.B. K.M.B. filed an answer to the application on the 4th October 1989 disputing liability. Between 4th October 1989 to 30th May 1991 the Legal Aid Department on behalf of the Applicant made persistent requests to the Commissioner for Labour for a Medical Board to be convened to assess the disability of the Applicant. On the 12th June 1991 the Commissioner for Labour replied saying, inter alia, the following, "It is indeed the interpretation of this department that before the Commissioner for Labour refers under Section 16D(4) of the Employees' Compensation Ordinance, an employee to the Ordinary Assessment Board for assessment, he must first be satisfied that the injury is employment-related. Hence I confirm that we are, at this moment, unable to refer Mr LUI to the Board for assessment of his second injury the liability for which is still in dispute. We shall of course be happy to arrange for medical assessment of his second injury by the Board if a court judgment on the issue of liability has been given in Mr LUI's favour. Should you prefer to have, in one go, a court decision on the issue of liability and the quantum of loss of earning capacity, you may wish to consider the alternative of making your own arrangement for Mr LUI be medically assessed for his second injury by private medical practitioners first." In short the Commissioner refused to convene an Assessment Board unless he was satisfied that the injury was "employment-related."

3. The Applicant hence issued the present application to appeal under Section 18 of Cap. 282 against the Commissioner's decision and asked for an order to refer the Applicant to the Assessment Board.

4. The facts are not in dispute. The parties argued on law.

5. Mr McCormick for the Applicant submitted that the Commissioner had usurpted the function of this Court by adopting the policy set out in his memo dated the 12th June 1991 that he must first be satisfied that the injury is employment-related before he would refer the matter to the Assessment Board. He further submitted that Section 16D(4) does not say that the Commissioner has to be satisfied that the injury arose out of employment. The introduction of the self imposed policy that the Commissioner has to be satisfied that the incident arose out of employment was clearly wrong because if the Commissioner is right then there should be no referral to the Assessment Board unless the employer admits liability in Court. The refusal by the Commissioner would force upon the labourer to go to a private practitioner to assess his disability whereby the worker would have to incur unnessary expenses before he could come to Court.

6. Miss Datwani for the Attorney General submitted that the Applicant should have resorted to Judicial Review. In any event Section 16D(4) gives the Commissioner unfettered discretion as to whether he should convene an Assessment Beard. In the present case the Commissioner exercised his discretion not to convene an Assessment Board. She submitted that if anyone who is injured were to ask for an assessment and the Commissioner have to oblige then there would be a shortage of man power to cope with the requests bearing in mind that there are thousands of injuries reported to the Labour Department. In the present case the Applicant was not prejudiced because he can alwalys go to a private practitioner for an assessment.

7. On the point of jurisdiction Section l8 provides:

"18. (1) Subject to this section, an appeal shall lie to the District Court from any decision or assessment of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board under section 16A, 16D, 16E, 16G or 16GA.

(2) No appeal shall lie after the expiry of 6 months from the date of the decision or, in the case of an assessment, of the date of issue of the relevant certificate under section 16A, 16F, 16G or 16GA, as the case may be:

Provided that the Court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that the time has elapsed.

(3) on an appeal under this section, the Court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs, as it thinks fit."

8. Since the Commissioner has decided not to refer the Applicant to the Assessment Board, he has made a decision and under Section 18 an appeal lies to the District Court.

9. This is not a fit and proper case where it should go for judicial review.

"The Courts will not normally grant judicial review where there is another avenue of appeal. 'It is a cardinal principle that, save in the most exceptional circumstances, [the jurisdiction to grant judicial review] will not be exercised when other remedies were available and have not been used.' (R.v. Epping Harlow General Commissioners ex p. Goldstraw 1983 3 All ER 257 p. 262 per Sir John Daraldson M.R.)" p. 824 White Book. Since the Commissioner's decsion can be taken an appeal to the District Court it is not likely that the application for judicial review will be entertained according to the principle laid down by Sir John Daraldson M.R.

10. The Applicant has issued a claim for compensation, K.M.B. has notice of his injury, he claims that the injury was employment related, and the Legal Aid Department is of the opinion that the injury is likely to result in permanent total a partial capacity, so they wrote to the Commissioner for an Assessment Board to be convened. Section 16D(4) provides "The Commissioner may refer to an Ordinary Assessment Board any claim for compensation for an injury to an employee of which he has notice if in the opinion of the Commissioner such injury is likely to result in permanent total or partial incapacity." Section 16D(4) gives the Commissioner a discretion as to whether the case should be referred to the Assessment Board.

11. The reason given by the Commissioner not to refer the Applicant to the Assessment Board was "he must first be satisfied that the injury is employment-related." With respect to the Commissioner the wording of Section 16D(4) is that he may refer to the Assessment Board for assessment of disability for "any claim for compensation for an injury to an employee of which he has notice ..... ", it does not say that the injury has to be employment-related. Whether the injury is employment-related is one of law and fact to be decided by the trial judge.

12. The Commissioner's suggestions that he would arrange for medical assessment if judgment on liability were in Applicant's favour or that the Applicant could have arranged to be medically assessed by medical practitioner are equally unsustainable. To obtain judgment on liability first would mean splitting the trial into two parts which will result in unnecessary costs being thrown away and Court's time being wasted.  If the injured workman were to be assessed by a private medical practitioner it would result in undue hardship to the workman who normally is hard pressed financially and could ill afford the luxury of having a private practitioner to make the assessment. On the other hand the Assessment Board, being free of charge, will relieve the injured workman of the financial burden. Further the composition of the assessment Borad convened under Section 16D consisting of two medical practitioners and a Senior Labour Officer or a Labour Officer will have the benefit of an officer experienced in this field to assess more accurately the percentage of loss of earning capacity than private practitioners who normally assess according to the physical disability. The only regret is that the Board does not give reasons for the assessment hence the Court is often faced with the uneviable task on appeal as to assessment to have evidence only from one doctor without the benefit of knowing how the Board's finding was reached. As a result, the Court has to treat the appeal as a new application and the efforts of the Board is wasted. In CHAN Kit v. Sum Wo Industrial Manufactory 1989 H.K.L.R. 230 at p. 232 per Hunter J."..... the Court's jurisdiction appears to be appellate. But one has then to remember that these Boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons. So that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the Court is so minded; it is plain that a Court approaching this matter has really got to start afresh."

13. The word "May" in Section 16D(4) gives the Commissioner discretionary power to convene an Assessment Board. There is no guiding principle as to how his discretion should be exercised. The Commissioner has to exercise his discretion according to the peculiar circumstances of each case. It would be wrong to argue that there are thousands of injured workmen and if the Commissioner were to oblige everyone then he would simply not be able to cope with that situation because this would mean that the Commissioner is not vested with the discretion.

14. It is public policy that the administration costs should not be wasted unnecessarily. The Applicant has already issued proceedings for compensation. It is undesirable to split the trial into two parts as that would be a waste of the judicial time and administration expenses.

15. For reasons above I allow the appeal against the Commissioner's decision and order that the Applicant be referred to the Ordinary Assessment Board for assessment.

16. Costs will follow the event.

Representation:

Mr G.R. McCormick, Ag. Assistant Director of Legal Aid for Applicant.

Ms. M. Datwani, Crown Counsel for Respondent.