Fun Yuk Ping v. Hong Kong Baptist Hospital

DCEC1556/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1556 OF 2010

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BETWEEN

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Before: H H Judge Chow in Chambers (Open to the public)

Date of Hearing: 13 July 2011

Date of Decision: 13 July 2011

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D E C I S I O N

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1.This is the Applicant’s application for leave to file and proceed with the application, notwithstanding the expiry of the two years’ limitation period pursuant to section 14(4) of the Employment Compensation Ordinance. Section 14(4) provides as follows:

“The court may receive and determine any application for compensation in any case, notwithstanding that the notice required by subsection (1) has not been given or that the application has not been made in due time as required by that subsection, if it is satisfied that there was reasonable excuse for the failure so to give notice or to make an application as the case may be.”

2.According to the application and to the affirmation of the applicant, she sustained injury by accident arising out of and in the course of employment on 17 July 2008 when she was the employee of the respondent.  Since the accident, she spent most of her time in hospital for treatment.  She suffered injuries to her spine and she also had depression as a result.

3.According to her affirmation made on the 14th day of April 2011, she said that in or about June 2010, while she was still in the Baptist Hospital for treatment to her back pain and also depression, she contacted a solicitor of Messrs K Y Woo & Co. to take up her ECC application case.  On 28 June 2010 K Y Woo & Co. sent its staff to the hospital for collection of her copy of identity card and also asked her to sign some documents.  She provided her with some documents, for example, sick leave certificate and receipt of medical expenses.  One of the documents she signed was an authorisation letter issued to the Labour Department dated 28 June 2010.  A copy of the authorisation letter was exhibited at page 126 of the trial bundle. The letter said:

“I hereby authorise you to release the following documents concerning my injuries as a result of the accident occurred on the above mentioned accident date to my instructing solicitors, K Y Woo & Co:

(1)   accident case report;

(2)   witness declaration given by all witnesses and persons involved in the above accident, together with English translation, if any;

(3)   full particulars of the name of insurers of the above named employer and its insurance policy;

(4)   full particulars of any criminal records undertaken or contemplated again any party involved;

(5)   prints of photographs or negatives thereof of the scene of the accident;

(6)   a copy of the form 2 submitted by the above named employer;

(7)   all medical reports and coroner report;

(8)   all other relevant documents.”

4.The heading is “Re: Proposed Employee’s Compensation Claim”, “Intended applicant: Fung Yuk Ping”, “Date of accident: 17 July 2008”.  As reflected by the letter, the Applicant intended to make an Employee’s Compensation claim against the Respondent by collecting the information or documents as stated in the letter to the Labour Department dated 28 June 2010, and then according to paragraph 10 of the affirmation, in early July, but before 9 July 2010, K Y Woo & Co. staff telephoned her and asked her to tell that staff the details of the accident and give all relevant documents in her possession to him.

5.On or about 9 July 2010 that staff telephoned her and said that it is necessary for him to file some documents in court and he required her to sign a document before they can make the ECC application.  Then, an appointment to see that staff was made on 13 July 2010.  On that day, at about 12 noon, she met that staff.   That staff asked her to sign some documents and she did, and then she said that a Miss Hon of K Y Woo & Co. would contact her later, and then they departed.  After she had signed the document as requested by that staff, she believed that her ECC application would be handled professionally and she need not worry about it, and then she wanted to know more about the procedure and the chance of success of her ECC application.  She rang up that staff to see if Miss Hon would have time to contact her.  That staff said that Miss Hon was very busy and she would contact her when she was less busy.  Then, some days before 13 October 2010, she telephoned that staff again and she requested to see Miss Hon, and that staff said that Miss Hon would see her later.  After a few days, that staff telephoned her and said Miss Hon was looking at the matter and asked her to go to K Y Woo & Co. on 13 October.

6.Then on 13 October, she attended K Y Woo & Co.  There, that staff told her that K Y Woo & Co. did not make the ECC application within the time limit and so they would only claim damages under Common Law for her.  She said when she gave instructions to the solicitors’ firm, it was within time limit. She asked him for an explanation for the failure to make application within the time limit.  That staff admitted that they did not make the application within the time limit, but he did not explain why they did not apply for Employee’s Compensation.

7.A lot of time has been spent on argument as to whether she suffered great pain or not during the period before June 2010.  In my judgment, it is a waste of time to do so.  The issue is:  did she instruct her lawyer to make the ECC claim before the time limit had expired?  Obviously, she did instruct such a solicitor and there was sufficient time for her solicitor to make the claim.  It is not the case that she instructed the solicitor on the last day before the time would expire.  It never is the issue that the solicitor K Y Woo & Co. did not have sufficient time to lodge her application, her claim for Employee’s Compensation.  The point is:  she did instruct a solicitor to proceed with her EC claim well before the limitation period had expired.

8.Now, the next point I have to consider is:  should K Y Woo’s fault in not proceeding with the EC claim be attributed to the Applicant?  The Applicant cited the case of Mok Lai Fong v 吳寶穗, HCPI 549/2010.  Master Marlene Ng in chambers stated under paragraph 98 of her judgment:

“In Corbin v Penfold Metallising Company Ltd [2002] Lloyd’s Med LR 247, Buxton LJ agreed with the view expressed in Das, which was justified by what Lord Diplock had said in Thompson that there was certainly no rule of law to visit the faults of the lawyers upon the claimant when one was looking at the particular area of limitation jurisdiction.”

9.This is good reasoning.  K Y Woo certainly did not file the necessary papers to pursue the employee’s compensation case for the Applicant within the time limit when they had all the time sufficient time to do so.  So in this regard, it may be regarded as a fault on that firm.  Now, should the fault be borne by the Applicant?  The Respondent argued that K Y Woo & Co. was the agent of the Applicant.  Its omission is binding upon the principal, namely, the Applicant.  But here, we have to look at the basis of the claim.  It is a claim based on statute.  Of course, it is a potential claim.  In that respect, there was no contract between the Respondent and the Applicant because it is a claim on statute.  So whatever was done or not done by the legal firm K Y Woo & Co. was a matter between the Applicant and that firm.  It cannot be said to be binding upon the Respondent because there was no contract between the Applicant and the Respondent in that regard.  The employment contract is merely a background information, a background fact upon which the Applicant could claim because of injury arising out of employment.  When it comes to litigation, namely, the applicant’s claim against the respondent, it is a matter of tort; there is no contract for the litigation.  Of course, there is the employment contract which gives rise to the claim under employee compensation, but that is a different contractual matter, so it cannot be said that K Y Woo’s act is binding upon the Applicant.

10.In any event, the Applicant did not instruct K Y Woo & Co. to file her claim out of time.  Her instruction, by implication, is that K Y Woo & Co. must file her claim within time.  The act or omission of not filing her claim within the time limit cannot and does not form her instructions.  It would be totally unfair and wrong for her to bear the fault of her lawyer.

11.The requirement under section 14(4) of the Employment Compensation Ordinance is that if the court is satisfied that there was a reasonable excuse for the failure to file her claim within the time limit, the court has a discretion to allow her to do so.  She did instruct her lawyer to file her claim well before the limit period has expired.  In my judgment, that forms a reasonable excuse.  Accordingly, I grant her leave to file and proceed with the application, notwithstanding the expiry of the two years’ limitation period.

(Discussion re costs)

12.No order as to costs for this application.

Mr Vincent Lam, instructed by Messrs Donald Yap, Cheng & Kong, for the Applicant

Ms Kay Seto, instructed by John Lam, Law & Co., for the Respondent