Chong Hon Sing v. Gammon Skanska Ltd
Read the full judgment text of DCEC 342/2004 on BabelCite. This District Court judgment.
1. The appellant took out the present summons for leave to appeal the assessment by the Ordinary Assessment Board out of time.
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DCEC 342/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 342 OF 2004 -------------------- IN THE MATTER OF AN APPLICATION BETWEEN:
-------------------- Coram: Deputy District Judge E. Yip in Chambers Date of Hearing: 25th September 2006 Date of Handing down Judgment: 4th October 2006
JUDGMENT _________________ The summons 1.The appellant took out the present summons for leave to appeal the assessment by the Ordinary Assessment Board out of time. The facts 2.The appellant was a drilling machine operator employed by the respondent. 3.On 3 April 2002, he injured his back whilst at work. 4.On 12 – 20 April 2002, he was granted sick leave. 5.On 23 April – 30 June 2002, he was granted sick leave. 6.On 1 July 2002, he resumed work as before. 7.On 13 – 14 January 2003, he was granted sick leave. 8.On 27 – 30 January 2003, he was granted sick leave. 9.On 13 February 2003, he attended an assessment by the Employees’ Compensation (Ordinary Assessment) Board [“the Board”]. 10.On 27 February 2003, the Board issued a Certificate of Assessment (Form 7) for a permanent loss of earning capacity of 5%. 11.On 20 May 2003, he obtained legal aid. 12.On 9 August 2003, Dr. Poon Kai Ming prepared a medical report after examining him. 13.On 26 August 2003, the 6 months’ time limit for appealing the assessment by the Board expired. 14.On 28 August 2003, his solicitors wrote to the respondent requesting the latter to assign a suitable, alternative job to him. The respondent then assigned him to work as a caretaker at the entrance of its workshop in Tseung Kwan O. 15.On 13 October 2003, pursuant to the appellant’s solicitors’ said letter, the respondent provided a copy of Dr. Poon’s medical report to the appellant on a without-prejudice basis. Dr. Poon, who was instructed by the respondent to examine him, regarded him as suitable to resume work as before. 16.On 30 March 2004, the appellant filed an application against the respondent for compensation under sections 9, 10 and 10A. 17.On 6 May 2004, the appellant’s solicitors wrote to the respondent’s loss adjusters to suggest an arrangement for a joint medical expert examination. 18.On 23 February 2005, the appellant’s solicitors wrote to the respondent’s solicitors to raise the request again. 19.On 23 September 2005, the respondent objected to it. Despite that, Dr. Lau examined him as instructed by the appellant’s solicitors. 20.On 26 September 2005, Dr. Lau prepared a medical report. 21.On 9 March 2006, the appellant’s solicitors filed the present summons. Dr. Lau diagnosed that the appellant could no longer work as before but only as a caretaker. Based on this diagnosis, the appellant seeks to appeal the Board’s decision in not referring his case to be assessed by a Special Assessment Board under section 9(1A), so that he could get a larger compensation. 22.On 2 December 2005, the appellant made an affirmation in support of the summons. The law On the Court’s power to grant an extension of time 23.Section 18 of the Ordinance provides as follows:
On the factors to be considered by the Court in the application 24.In Chung Sau Ling v Million Join Limited CACV 8/2003, Cheung J.A. made it clear that the party applying for an extension of time to appeal the assessment by the Board, the District Court had to consider:
My findings On the factors to be considered by the District Court in the application The reason for the delay 25.He explained [in para 7 – 8] that he had taken legal advice from his solicitors. He had no reason to challenge the percentage loss of earning capacity certified by the Board. After the assessment, he continued to suffer from residual back pain, hoping that his condition would improve in due course. He continued his medical follow-ups and was granted further sick leaves from time to time when the pain was so serious that he could not work. On 28 August 2003, upon his request, his solicitors wrote to the respondent requesting them to assign a suitable, alternative job for him. By that time, it had become obvious to him and the respondent that he was still unable to carry his pre-accident duties as a drilling machine operator. The respondent therefore reassigned him to work as a caretaker at the entrance of its workshop in Tseung Kwan O. 26.He injured his back whilst at work on 3 April 2002. The Board issued a Certificate of Assessment on 27 February 2003. He filed the present summons on 9 March 2006. He received legal aid on 20 May 2003. He instructed his solicitors to write to the respondent for a suitable, alternative job on 28 August 2003. There is no explanation as to why it had taken him 1 year 4 months (i.e., from 3 April 2002 to 28 August 2003) to conclude that he could not continue his pre-accident job. With this conclusion, he then sought to appeal the assessment by the Board in order to seek a higher compensation under section 9(1A). I see no reasonable excuse for the delay. The length of the delay 27.The present summons was filed 2 years 6 months (i.e., from 26 August 2003 to 6 March 2006) after the expiry of the time-limit for appeal. The prejudice to the other party if the extension was granted 28.Dr. Poon’s report prepared on 9 August 2003 diagnosed that the appellant would be fit to continue his pre-accident job. Dr. Lau only examined the appellant on 23 September 2005 as instructed by the appellant’s solicitors. Dr. Lau’s report [in CHS-6] diagnosed, however, that the appellant would not be fit to do so. The respondent complains that as a result of the delay for 2 years 1 month (i.e., from 9 August 2003 to 23 September 2005), the appellant’s medical condition might have materially changed. The respondent is deprived of the opportunity to gather evidence of the appellant’s medical condition earlier so as to comment on, or counter, Dr. Lau’s diagnosis. I agree that this complaint is genuine and justified. The respondent is gravely prejudiced by the long lapse of time to warrant any examination of the appellant meaningful to counter Dr. Lau’s medical report. 29.The appellant’s solicitor submits that the respondent’s predicament was caused by the respondent’s own attitude. It was because the appellant’s solicitors had approached the respondent’s solicitors on as early as 23 February 2005 to request for consent to Dr. Lau’s being jointly instructed to examine the appellant; the respondent had refused the request. The respondent’s solicitor submits that the refusal was reasonable as the assessment by the Board was binding in the absence of any appeal; the appellant had not filed any notice to appeal until much later. I agree that the respondent’s refusal was justified. The merits of the appeal 30.The appellant has to show that he could not continue his pre-accident job, hence entitled to the compensation as assessed under section 9(1A). To achieve this, he has to show that Dr. Poon’s findings were flawed and that Dr. Lau’s medical examination conducted on 23 September 2005, 3 years 6 months after the injury on 3 April 2002, was correct. The appellant’s solicitor has not submitted, nor did Dr. Lau’s medical report mention, why Dr. Poon’s findings were flawed. So far I cannot see strong merits in the appellant’s case. Conclusion 31.The major problems with the appellant’s appeal are that he is unable to provide any reasonable excuse and that the respondent has been seriously prejudiced due to the long lapse of time. In the circumstances, I refuse leave to the appellant. I have heard from the parties on costs. I order costs of the summons and the application to the respondent. Dated this 4 October 2006
Representation: Mr. Tony Au of Messrs. Lily Fenn & Partners, for the Applicant. Miss. M. Fung of Messrs. Cheng, Yeung & Co., for the Respondent. |
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