Lau Sek Yu David v. Citybus Ltd

DCEC 1031/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1031 OF 2002

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

In the Matter of an Application Between

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

Coram:  His Honour Judge Chow in Court

Dates of Hearing: 5^th and 6^th August 2004

Date of handing down Judgment: 21^st October 2004

______________

JUDGMENT

_____________

1.This is an application instituted by the Applicant for an appeal out of time under section 18 of the Employees’ Compensation Ordinance, Cap. 282 (“the Ordinance”) and for compensation under sections 9, 10 and 10A of the Ordinance.  Paragraphs 1 and 2 of the Application are set out as follows :-

“1. On the 10^th day of November 2000, personal injury by accident arising out of and in the course of employment was caused to the Applicant, an employee employed by the Respondent.

2. An application under the Ordinance is hereby made by the Applicant for the following relief or order :-

(a) an Appeal against the Certificate of Compensation Assessment (Form 5) dated 28^th February 2001 and Certificate of Assessment (Form 7) dated 27^th February 2001 out of time pursuant to section 18 of the Ordinance;

(b) Compensation under section 9, 10 and 10A of the Ordinance;

(c) Interest;

(d) Further and other relief; and

(e) Costs.”

(Underlines provided)

2.In Form 7, the Applicant’s injury was assessed as sprain back resulting in pain.  The period of necessary absence from duty was from 10^th November 2000 to 24^th November 2000 and the loss of earning capacity permanently caused by injury was 1%.  In Form 5, the Commissioner for Labour made a total award of $18,329.16 as compensation to the Plaintiff.  The Applicant did not object to the assessments, and did not appeal against the Certificates.  He received the compensation paid by the Respondent.

Appeal out of time

3.The application to “appeal out of time” was not an application to extend the time within which to appeal against the assessments contained in the said Certificates.  This is made clear by the fact that the Applicant lodged the claim for compensation under section 9, 10 and 10A of the Ordinance in the same application in which the application to appeal out of time was made.  Section 18 of the Ordinance provides :-

“(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) ………………………”

(Underlines provided)

What is the meaning of “extend the time within which to appeal” under section 18(2)?  In my judgment, there are 2 steps here.  Firstly, there is an extension of the time to appeal.  Secondly, when there is such an extension of the time to appeal, for example, a period of 14 days, the appeal is to be made within this period of 14 days.  That is the meaning of the phrase “within which”; the word “which” means the period of extension.  The first step precedes the second.  Alternatively, the second step stems from the first step.  It is only when the first step succeeds, then the second step will arise.  If there is no extension of time to appeal, no appeal can be lodged.  These two steps do not co-exist.  Therefore, if an extension of time is granted, then it is from that time onwards that the Applicant is entitled to take the step of lodging an appeal within the period of extension against the assessments contained in the Certificates.  Because the Applicant did not apply for an extension of time to appeal, the necessity to grant such an extension of time does not arise.  Put it simply, by instituting the claims under Paragraph 2(b) of the Application, the Applicant is asking the Court to try the ultimate issue in this case at the same time as the application to appeal out of time is heard.  Because of this, the Court was not asked to grant any extension of time to appeal.  The Applicant only asked for an appeal out of time, but this is not a matter which this Court has the power to grant under section 18(2).  On this ground alone, the application under paragraph 2(a) of the Application must fail.

4.In Ng Ming Cheong v MTRC [1997] HKLRD 1231, the Court of Appeal held that Certificates of Assessment which were not reviewed or appealed against were binding on the Court.  Therefore when the application under paragraph 2(a) fails, the application under paragraph 2(b) relating to compensation under sections 9 and 10 of the Ordinance will also fail, because the assessments referred to in the Certificates are binding on this court, and bar the said claims for compensation.

Delay for appeal out of time

5.Even if what the Applicant applies for is an extension of time to appeal, such application will fail.  The delay for such an extension has been over one year.  The Applicant said that he was ignorant of the law and that he had limited education.  But he could read out paragraphs (i) and (ii) of the “IMPORTANT NOTE 重要事項” printed at the bottom of Form 7, which read:-

“IMPORTANT NOTE  重要事項：

(i) 第16G（1）條規定如反對以上評估，可於本證明書簽發日期後14天內以書面向勞工處處長提出並將該反對書的副本送交另一方當事人；或

(ii) 第18（1）及（2）條規定如不滿以上評估，可於本證明書簽發日期起6個月內向區域法院提出上訴。”

(Underlines provided)

Obviously the Applicant understands the meaning of the Chinese characters “反對”(objection) and “上訴”(Appeal).  Thus he could and should have objected to or appealed against the Certificates within the periods of time stipulated in the Important Note.  He explained that he did not do so because he did not know that he would be in the situation he was now in.  But before the end of the limitation period, namely, 27^th August 2001, his condition was such that he was unable to return to work.  The present application was lodged on 6^th November 2002, well beyond the limitation period.  I find that his explanation for the delay was incredible.

Prejudice

6.The Respondent submitted that by failing to make his application in time, the Applicant has caused the Respondent prejudice because the Respondent was unable to arrange a proper specialist medical examination at an earlier time, which would have produced a far better picture than the assessment medical report when examination was conducted 2 years after the accident.  The Applicant submitted that there was no evidence from the Respondent to show any prejudice done to the Respondent.  Both parties had prepared their expert reports of which this Court could consider, and that Dr. Chun Siu Yeung (“Dr. Chun”), the Respondent’s medical expert, never mentioned that he could produce a far better picture if the examination could be conducted an earlier examination.  The prejudice caused to the Respondent is, as rightly submitted by the Respondent, the opportunity to examine the Applicant at a much earlier stage, when such an examination would be much nearer to the time when the alleged injury complained of was caused.  It is sheer common sense that the nearer to the time of the causation of the alleged injury the medical examination was conducted, the more accurate the diagnosis would be.  Such prejudice could not be compensated by costs, as the Respondent could no longer make use of the earlier opportunity to conduct medical examination on the Applicant.  In this regard, I reject the Applicant’s submission.

7.In conclusion, having regard to the prejudice caused to the Applicant, and the said inexcusable delay I would refuse an extension of time to appeal, even if there were such an application.

Merits of the case

8.The background of the application is set out in Paragraph 3(3) of the Application as follows :-

“On the 10^th day of November 2000 at about 11:20 a.m., the Applicant was, in the course of employment with the Respondent, working at a bus stayed at a bus terminal in Kowloon Bay.  The Applicant was a bus driver.  It was his duty to confirm that there was no person other than himself inside the bus carriage when the bus arrived the bus terminal.  At the time of the accident, the Applicant had finished checking the bus carriage and decided to leave the bus.  As usual, he pressed on a button inside the bus to open the bus doors and then passed through the bus doors as quickly as possible before they shut up automatically.  When the Applicant was passing through the bus doors, due to some unknown reasons, he slipped on the floor of the bus carriage.  The accident caused his thigh pinching by the bus doors and his lion hitting by the stairs nearby.  As a result, the Applicant sustained injuries in his loin.

Despite the Applicant has been suffering from persistent pain in his loin area after the accident, he was advised by a doctor to resume his pre-accident work as a bus driver on or about 26^th November 2000.

Thereafter, on 10^th April 2001, the Applicant was, in the course of employment with the Respondent, adjusting a route sign over his seat.  After finishing the job, he decided to leave his seat.  Whilst stepping out from the seat, he felt great pain in his left thigh.  Since then, the Applicant has been suffering from persistent pain in his left thigh (other than his loin).

The accident and the event on 10^th April 2001 were interrelated.”

9.For the injury he sustained on 10^th November 2000, he was given sick leave up to 24^th November 2000.  He resumed worked on 26^th November 2000.  But he said that the pain continued after the sick leave.  Subsequently the pain increased sometime in April 2001.  His case is that he did not recover from the accident on 10^th November 2000, and the pain caused by the injury continued through April 2001.   To support his case, he relied on the report of Dr. Au Ka-kau (“Dr. Au”), paragraphs 8.4.1 and 8.9 of which state :

“8.4.1     Mr. Lau sustained back injury during a slip-and-fall accident on 10^th November 2000.  As a result he had residual back pain.  Based on a reasonable degree of medical certainty, Mr. Lau’s lower back pain is a result of the back injury he sustained during the accident that happened on 10^th November 2000.

……

8.9   Sick Leave :

The appropriate sick leave for Mr. Lau to recover from the injury he sustained on 10^th November 2000 is 3 months.”

In his report, Dr. Au did not explain what made him reach the conclusion that there was a reasonable degree of medical certainty that the pain was a result of the back injury the Applicant sustained during the accident on 10^th November 2000.  There was simply no analysis in his report as to why the lower back pain was a result of the back injury sustained during the said accident.  On the other hand, Dr. Chun examined the Applicant on 13^th March 2003.  In paragraphs 9-12 of his report under the heading of “Diagnosis, prognosis & comments”, he set out his analysis of the cause and effect of the Applicant’s prolapsed Intervertebral Disc (“PID”).  Paragraph 9 of the report states that there are features of degenerative at L5-S1 disc with bulging of disc.  A clear case is made out for the Applicant’s pain, namely, the pain was caused by the PID at the L5-S1 disc, which is under a degenerative condition; it was not caused by the accident on 10^th November 2000.  I prefer this medical finding to that of Dr. Au.  I therefore find that the lower back pain was not caused by the injury the Applicant sustained on 10November 2000.

Quantum

10.On the assumption that this Court extends the time to appeal against the decisions in the Certificates, and accepting the loss of earning capacity at 5% as contended for by Dr. Au, the award would be $59,464.22 ($16,517.84 monthly earnings x 72 x 5%).  The period of sick leave contended for by Dr. Au is 3 months. That would give an award of $39,642.82 ($16,517.84 x 3 x 4/5).  The total amount of these 2 sums is $99,107.04.  The Applicant has already received the sum of $146,014.26.  Therefore no further award should be made to the Applicant.

Section 10(2)

11.The Applicant asked for periodical payment in respect of sick leave period from 8^th June 2001 to 10^th September 2004.  He argued that under section 10 of the Ordinance, the Applicant is entitled to have periodical payments for the period specified under this section during his temporary incapacity.  The sick leave certificate issued by “a medical practitioner” is itself evidence to support a person’s entitlement for periodical entitlement under section 10.  Therefore the comment of Dr. Au that “the appropriate sick leave is 3 months” is irrelevant to the entitlement of periodical payment under section 10.  The Applicant further quoted the case of Lai Yuen-hing v. Lo Chi-hung trading as Kam Hung Construction Co. DCEC No. 14 of 2000 to support his contention that section 10 is not rebuttable.  Section 10(2) of the Ordinance reads :-

“For the purposes of this section a period of absence from duty certified to be necessary by a medical practitioner …… shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

The phrase “deemed to be” connotes a presumption. A presumption, of course, is rebuttable.  If it is not rebuttable, the phrase should not have been inserted in its present place.  The case of Lai Yuen-hing is not binding on me, and I decline to follow it.

12.The phrase “temporary incapacity” is the “temporary incapacity” specified under section 10(1).  Section 10(1) refers to “temporary incapacity” resulting from “the injury”.  The injury is the personal injury caused by an accident arising out of and in the course of the employment of an applicant under section 5 of the Ordinance.  In the present case, the accident took place on 10^th November 2000.  But I find that there is no evidence to support the Applicant’s case that the pain suffered by the Applicant in April, 2001 is connected with the accident on 10^th November 2000.  On 10^th April 2001 no accident arising out of and in the course of employment of the applicant occurred.  Therefore section 10(2) of the Ordinance is inapplicable in this case; hence no compensation is to be paid to the Applicant in connection with section 10(2) as submitted by the Applicant’s legal representation in paragraphs 42 to 52 of his written submission.

Section 10(5)

13.The Applicant submitted that the Court has the discretion to extend the Applicant’s entitlement for periodical payment for another 12 months pursuant to section 10(5) of the Ordinance. Section 10(5) reads :-

“An employee who has received periodical payments under this section for a period of 24 months from the date of the commencement of the temporary incapacity or for such further period being not more than 12 months as the Court may allow in any particular case shall no longer be entitled to periodical payments under this section but shall be deemed to have suffered permanent incapacity and the provisions of section 7 or 9, as the case may be, shall apply to the employee.”

(Underlines provided)

The Applicant has not received periodical payment for a period of 24 months from the date of the commencement of the temporary incapacity.  Therefore section 10(5) does not apply.

14.According to P. 16 of Exhibit P1 the Applicant has already received the medical expenses in the sum of $74 on 15^th March 2001.  Therefore the claim for compensation relating to section 10A of the Ordinance under paragraph 2(b) of the Application fails.

15.By reason of the matters above-said, I dismiss the Applicant’s application.

Costs

16.I make an order nisi, to be made absolute in 14 days’ time, that the Applicant is to pay the costs of these proceedings to the Respondent, to be taxed, if not agreed, with certificate for Counsel.

Mr. Chou Sing Hong of Messrs. Andrew Chan & Co. for the Applicant.

Mr. Robert Pang, instructed by Messrs. Susan Liang & Co. for the Respondent.