Li Wan Kei v. Hyundai Engineering & Construction Co Ltd

DCEC1425/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1425 OF 2004

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BETWEEN

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Coram : Her Honour Judge C.B. Chan in Chambers

Date of Hearing : 7^th November 2005

Date of Handing Down of Decision : 2^nd December 2005

DECISION

1.This is an application wherein the Respondent raised the issue that the Application in this action is time barred as it was filed on the 9 December 2004 more than 24 months after the date of the accident on the 17 September 2001.  

2.The Applicant’s Solicitor clarified that the Application in this action is filed under section 18 of the Employees’ Compensation Ordinance.  

3.Section 18 states:

(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. . .
(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.

4.The assessment on the Applicant by the Employees’ Compensation (Ordinary Assessment) Board was conducted on 25 October 2004 and the Certificate of Assessment (Form 7) was issued on the 8 November 2004.   The appeal against the Assessment was made on 9 December 2004, hence, within the 6 months period.   

5.The Applicant relies on the Court of Appeal decision in Chung Lung-shun and Adams Parking (International) Limited [1996] 1 HKLRD 49 (CACV No. 160 of 1995).   It was held that even though the appropriate form to be used in an appeal against Assessment of the Employees Compensation (Ordinary Assessment) Board is the same as that for an application under section 18A(2) application for compensation in the first instance, yet section 14 of the Ordinance limiting the institution of proceedings to 24 months after the date of the accident did not apply.   The relevant limitation period is that stipulated by section 18(2) that is a period of 6 months from the Assessment.     

6.The Respondent’s solicitor in his submission focuses on section 16A(1)(a) and (b) and section 16(1A) of the Ordinance which states

“	Section 16A(1): Where -
	(a)	a claim for compensation arises in respect of an accident causing injury to an employee that results in temporary incapacity, whether total or partial; or
	(b)	a claim for compensation arises in respect of an accident causing injury to an employee that results in loss of earning capacity as assessed under section 16D(5), 16E(8) or (9), 16G(2) or 16GA(1), (Amended 36 of 1996 s.11)
	the Commissioner may assess the compensation payable under sections 7, 9 and 10”

7.He submits that pursuant to the aforesaid sections, the Commissioner has no authority to assess under section 16A or even to refer a claim to an Ordinary Assessment Board for compensation under section 16D(4) unless notice of the claim has been given to him within 24 months as set out in section 16A(1A).

8.He submits that according to section 16A, the claim of the Applicant with the Commissioner has to be raised within 24 months of the date of the accident.   He states that there is no evidence that such a claim was ever raised within that date because according to the Commissioner for Labour whose letter dated 23 September 2005 is exhibited to the 2^nd Affirmation of the Respondent’s solicitor, the Applicant had failed to give notice of a claim for compensation to the Commissioner in respect of the accident / injury within 24 months from the date of the accident.  The Commissioner himself only first referred the matter to the Ordinary Assessment Board for assessment after more than 24 months since the accident.

9.For that reason he submits that the Applicant should not be permitted to proceed with the Application.

10.Having considered the submission of the Respondent’s solicitor, I am of the view that his arguments are misconceived.   The Application wherein this Action is started is based on section 18 of the Ordinance.   In my view Section 18 (1) can be construed to mean that an appeal shall lie to the District Court from any decision, assessment of respectively, the Commissioner (pursuant to section 16A), an Ordinary Assessment Board (pursuant to section 16D) or a Special Assessment Board (pursuant to section 16E) and from review of assessments (pursuant to section 16G and section 16GA).    The appeal in this Application is from an assessment of an Ordinary Assessment Board made pursuant to section 16D of the Ordinance.   It is not an appeal of the assessment or decision of the Commissioner.    An appeal in this instance does not trigger the operation of section 16A.   The relevant sections of the Ordinance, which ground this Application, are sections 16D and 18.   The Applicant had come within the time limit for appeal under section 18(2).   From the construction of section 18, I find that there is no need to refer to section 16A when I entertain this Application.  

11.The Commissioner of Labour clarified the process of a case from the time the Form 2 is filed by the employer, in his letters to the Respondent’s solicitor.   It is clear from the letters of the Commissioner for Labour dated 23 September 2005 marked Exh KS-8 that the Applicant was not required to request the Commissioner to make a claim for compensation on his behalf under their procedures.   In the letter of the Commissioner for Labour dated 23 August 2005 marked Exh KS-6 the Commissioner stated “the injured employee was not required to submit any notification of accident to us or to make any request for us to assess his claim.”    The Commissioner stated in each of the letters that after they received the Form 2, they invited the employee on 9 November 2001 to attend their Occupational Medicine Unit for sick leave clearance.   Thereafter, the Applicant was followed up by the Occupational Medicine Unit and vetted whether he was fit for medical assessment or not.   When it was found that he was fit for such assessment he was referred to the assessment of the Employees Compensation Ordinary Assessment Board to assess the loss of earning capacity suffered by him.  The Occupational Medicine Unit scheduled the medical assessment on the 25 October 2004.  

12.The Applicant’s solicitor submitted that section 16A is not a relevant section for the purposes of this Application.   However, even were it relevant, section 16A uses the words, “Where, a claim for compensation arises” as distinguished from the use of the words in section 14 referring to an application for compensation to the Court under section 18(2) having “been made”.   The words referring to “a claim arising” is in my view, much more flexible.   Such a claim could arise upon the filing of Form 2 by an employer and the attendance of a the injured employee for clearance for sick leave and treatment by the Occupational Medicine Unit which will vet the situation of the injured employee to consider whether the injured employee is ready for assessment by the Employees Compensation Assessment Board.  

13.The process described by the Commissioner supports the argument of the Applicant’s solicitor that even were section 16A relevant which she submits is not, the wording therein does not support the contention of the Respondent’s solicitor.   I agree with the Applicant’s solicitor that even were section 16A triggered by this Application, which I do not so find, section 16A does not stipulate the need for a formal application before the Commissioner could proceed to assessment.   I find that this is clearly not an application for appeal against the assessment of the Commissioner so that section 16A could not be triggered by this Application.     

14.I find that the arguments of the Respondent’s solicitor are groundless as I find that section 16A is not a relevant section for consideration in this Application.  I find that the Applicant has complied with the relevant sections, namely section 16D and section 18 of the Ordinance for this Application and this Application falls squarely within the findings of Chung Lung Shun v. Adams Parking (International Limited) [1996] 1 HKLRD 49 (CACV No. 160 of 1995) aforesaid.  I find that the Application filed under section 18 of the Employees’ Compensation Ordinance could proceed without leave from the Court and I order that the Applicant could proceed with the Application without leave of the Court.  I grant an order nisi that costs of the hearing together with costs reserved on 24 June 2005 be to the Applicant to be taxed if not agreed.  The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Representation:

Miss Teresa Kin of Messrs. Y.C. Lee, Pang & Kwok a ssigned by DLA for the Applicant.

Mr. S. Krishnan of Messrs. Krishnan & Tsang for the Respondent.