Cheng So Chun Jolly v. Wa Fung Public School

LA/ECC/15881/2004 (DP13)

DCEC 975/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 975 OF 2004

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In the Matter of an Application Between:-

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Coram  :  H.H. Judge Chow in Court

Date of Hearing  :  16^th April, 2005

Date of handing down Judgment:  30^th June, 2005

Judgment

1.This is a trial on the preliminary issue as to whether leave under section 14(4) of the Employees’ Compensation Ordinance (“the Ordinance”) should be granted to the Applicant to commence her application for employees’ compensation against the Respondent.  The Applicant’s application was filed on 26^th August, 2004, claiming for compensation under sections 9, 10 and 10A of the Ordinance, in respect of an accident occurred in or around October, 1999, which caused her psychiatric injury.

2.Under section 14(1) of the Ordinance, an application for compensation in respect of an accident must be made within 24 months from the occurrence of the accident causing injury.  The Applicant did not make her application within the statutory period.  Section 14(4) of the Ordinance provides that the Court may receive and determine any application for compensation in any case notwithstanding that the application has not been made in due time as required by subsection (1), if it is satisfied that there was reasonable excuse for the failure to make an application.

Background

3.In October, 1999, the Applicant was the form teacher of primary 3 of the Respondent (“the School”).  A student, Peng Kwok Wai (“Peng”), complained that his underwear had been cut by another student.  The school principal asked the Applicant to investigate the case.  After carrying out an investigation, the Applicant found that Peng had wrongly accused the other boy of cutting his underwear and she punished him by asking him to copy a chapter of a book.  On the next day, Peng’s mother lodged a complaint with the Respondent and the police that a teacher called Cheng had beaten Peng with a bamboo.  The Applicant was asked to go to the police station to assist in the investigation and she did so.  Later on she was informed that the police had concluded that there was no evidence showing that Peng had received corporal punishment from any teacher at the School and the file was closed.  The Applicant believes that Peng falsely accused her as an act of revenge for punishing him.  She became greatly distressed and badly hurt by Peng’s false accusation and his mother’s complaint to the School and the police.  She was disappointed by the School’s handling of the matter and felt that it no longer trusted her.  She cried a lot and could not sleep at night.  She believed that she was just reacting normally to a stressful situation.  Her mental condition deteriorated in the 2000 to 2001 and 2001 to 2002 school years.  She sought advice from the school principal and the school counsellor.  They advised her to be positive.  From time to time, she broke into tears in front of colleagues.  She asked for a temporary suspension from employment without pay.  But the School refused her request, and she continued teaching even though her mental condition was deteriorating. 

4.In October 2002 her mental condition broke down.  She began to realize that she was abnormal and should seek professional help.  She consulted two general practitioners who referred her to the Tuen Mun Health Centre of Castle Peak Hospital for treatment.  She was unable to report for duty to the School and was granted sick leave since 9^th October, 2002.  The sick leave certificates showed that she was suffering from mood disaster, anxiety, chronic abdominal pain, dizziness, headache and social phobia.

5.In early 2003, she was treated at the Tuen Mun Mental Health Centre.  She wondered whether the School was at fault in causing her psychiatric illness, but she was not in the mood of taking any action because of her mental state.  Her mental state was such that she was not even in the mood to leave home.  The sick leave certificates show that she was suffering from “mood disaster”.  From March to July, 2003, she received treatment at the Tuen Mun Mental Health Centre, and was diagnosed to be suffering from depressive disorder.

6.She took action once her emotions and mood became a little more stable in July, 2003.  She approached the Director of Legal Aid to discuss the possibility of instituting legal proceedings against the School.  On 6^th August, 2003, she was granted legal aid to pursue a claim for damages at common law.  She did not apply for legal aid to claim employees’ compensation because she was afraid of pursuing two separate claims at the same time and two sets of legal proceedings against the School.  She was very worried and anxious that she would not be able to withstand the huge stress of these proceedings and that her mental condition would further deteriorate.

7.She found it very difficult to give factual details to her solicitors in the course of preparing for her common law claim, too depressed sometimes to attend their offices, and had to take rests during conferences with her solicitors and had headaches after conferences.

8.On 27^th October, 2003, she was interviewed by Dr. Chung See-yuen who made his report on 3^rd November, 2003.  Dr. Chung opined that she “is suffering from adjustment disorder with mixed anxiety and depressed mood”, and that the “disorder is caused by the trauma of the incident in or around October 1999”, and that she suffered from a “psychotic reaction in response to the trauma of the incident”.  It is at this stage that her psychotic illness was shown by medical evidence to be connected with the accident in October, 1999.  Dr. Chung opined that she could not return to work as a teacher in the coming year because of her “mental problems of anxiety, fear of going to teach at school, difficulty in concentrating, forgetfulness, and lack of confidence.  She may suffer from a relapse of the psychotic illness if she comes under stressful circumstances.”  That being the situation, her failure to make an application is reasonable.  It was not until July, 2004, that legal advice was received that the School was liable to pay employees’ compensation under the Ordinance because her psychiatric illness was a personal injury by accident that arose out of and in the course of her employment with the School.  She did not waste anytime after receiving such legal advice.  In late July, 2004 she applied for legal aid to claim employees’ compensation, and on 25^th August, 2004, she was granted legal aid.  Her application was filed on 26^th August, 2004.  Obviously it was only in late October, 2003 that she realized that her condition was caused by the trauma in or around October, 1999. 

9.The Respondent submitted that the Applicant appears to say that she was not aware that she had a cause of action against the Respondent under the Ordinance, but ignorance of the law is no defence in a limitation action.  The issue of the matter is: when did she begin to realize that her condition was linked up with the incident in October, 1999.  It was only in July, 2003 that she had such knowledge, obviously because of the diagnosis of Dr. Chung.  But her condition at that time was such that it was not unreasonable for her not to make the application.

10.The Respondent submitted that the Applicant had confirmed by further affidavit that her mental condition had been deteriorating since around October, 1999 so much so that she sought help from the school principal in early 2002.  So she had known all along that she suffered injury from the accident and thus had a claim against the Respondent.  Seeking help from the school principal is no proof that she had suffered injury from the accident.  If the injury were a physical injury there would be no problem for the Applicant to link up its causation with the accident, but psychiatric illness is a very different matter.  It relates to the mental state of the patient.  Since she was in such a mental condition, it is obvious that it was difficult for her to judge whether her condition was caused by the trauma in October, 1999.  She was a patient, and it would be unreliable to rely on her own perception of her condition in order to reach a conclusion that she realized that  her condition was caused by the trauma in October, 1999.  Not until and unless she realized this then the Court can say whether there was unreasonable excuse for her delay in instituting the present action.

11.The Respondent submitted that the Applicant said that she had commenced this action at the earliest opportunity after she was able to manage her emotions more effectively.  Had she been a person under a disability she could have been able to argue that time did not run for so long as she was under the disability.  None of the medical reports adduced suggested that she was at any time a person under disability.  Thus her argument is unsound.  But the reports referred to her moods at various stages.  Her mood at the material time was such that she could not continue teaching, or leave home.  This is obviously a mental disability, as opposed to physical ability.

12.On the evidence presented before me, I am satisfied that the Applicant has discharged the onus of showing that there was reasonable excuse on her part in bringing the action out of time.  I therefore grant her the leave sought.

The Applicant : represented by Mr. Anthony Ismail, instructed by Messrs. Or, Ng & Chan, Solicitors.

The Respondent : represented by Miss Christine Lee, instructed by Messrs. Tsang, Chan & Wong, Solicitors.