Re Ng Kai-yin

DCMP000091/1985

Headnote

Whether the District Court has jurisdiction to join an employee who has not filed an application for Employee Compensation as a party to an appeal from the employer against the medical assessments of an Ordinary Assessment Board.

Whether the District Court has jurisdiction to order the production of the full contemporaneous reports or records of the said Board to the employer appellant with oopies to be furnished to the Court.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

MISCELLANEOUS PROCEEDINGS NO. 91 OF 1985

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Coram: H.H. Judge Eric Li  in Court

Date of Judgment: 1st May, 1985

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EXTEMPORE RULING

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1. This is an appeal under section 18 of the Employee's Compensation Ordinance Cap. 282 against the assessments of the Ordinary Assessment Board that is really medical assessment as to disability of the employee in question. There is no doubt in my mind that the Board,. as correctly pointed out to me by Mr. Strawbridge who has most kindly consented to be an amicus curiae of the Court, is not and cannot be a party to this appeal. Nor in so far as this appeal is concerned, are the Attorney General or the Director of Legal Aid.

2. There is no procedure prescribed under the Ordinance or the Rules thereunder for the appeal proceedings save and except perhaps what are stated in general terms under sections 18 and 18A. However under rule 24, the Court is conferred jurisdiction to join any apparently interested party to the proceedings before the Court which proceedings in my opinion must include an appeal under section 18. The employee at this moment is not a party to the appeal as he has yet to file an application for compensation. It may, of course, be unnecessary for him to do that once the degree or extent of disability is settled between the parties with a settlement out of Court to follow and that is what I suspect at least part of the purposes that section 18 and 18A may serve. It is crystal clear that the employee must be an interested party and equally that once this appeal is made known to him, he may well seek further medical evidence and / or take such steps as to resist this appeal. It would simply be against natural justice not to join him as a party even if I were wrong in my view that all employee compensation proceedings particularly in the present contest were not intended to be 100% wholly accusatorial Therefore I order that the employee be joined as the Respondent to this appeal and that the Applicant shall serve him all the relevant documents within 7 days.

3. There remains for me to decide whether or not the Court has jurisdiction under section 18A to order for the production of all the contemporaneous record that is really the medical record of the Ordinary Assessment Board for the consideration and determination of this appeal. Section 18A enpowers the Court to call upon any person to give evidence, if the Court is of the opinion that such person is, by virtue of his experts knowledge (emphasize by myself), able to assist the Court. Mr. Strawbridge and Mr. Carolan and I myself are of one mind that section 18A applies to a section 18 appeal situation. A look at the Employees Compensation (Amendment) Bill on 1982 (See 545 at G573) which eventually gave rise to section 18 and 18A (see clause 27) reinforces my conviction of such application that must have been the true intention of the Legislature. The only possible objection as Mr. Carolan at one stage seemed to have raised is that it may well be too late of the day to send for such contemporaneous medical record from the Board as the Board was functus but what I am sending for really were the contemporaneous record made by the Board at the time or shortly after the medical examination of the employee. On reading section 16 as I was invited by Mr. Strawbridge to do so and from what I know of this case in Court this morning, the employer applicant must be aware of both assessments by the Board and yet had not insisted upon being present in either or upon being furnished with copy of the full reports of the Board. This failure as of course considerably weakened the argument of too late of the date.

4. I further rule that I do have jurisdiction to and I do order that all the contemporaneous reports that is the full reports including the medical reports of the Ordinary Assessment Board in question shall be sent to this Court with copies to be supplied to Mr. Carolan of Messrs. Deacons, Solicitors for the Applicant. Leave is also given for either the Applicant or the Respondent to this appeal to seek further direction from the Court on matters relating to this appeal. This appeal is adjourned sine dine with liberty to restore on the application of either the Applicant or the Respondent.

5. I am indebted to the gentlemen before me for the invaluable assistance particularly to Mr. Strawbridge which has made a prompt ruling possible. Mr. Strawbridge is relieved from these proceedings. On further hearing submissions from both Mr. Strawbridge and Mr. Carolan, I vary the order of production of the said contemporaneous record and full reports to the extent that they shall be sent to Mr. Carolan of Messrs Deacons within 21 days upon request from Deacons. We all agree that there shall be no order as to costs as this application is not only of personal interest to the parties but of general interest particularly in setting up a precedent for future practice. It follows that there will be no order as to costs for today's hearing.

Representation:

Mr. Strawbridge, Assistant Principal Crown Counsel       present

Mr. Paul Carolan of Messrs Deacons for applicant