CHUNG SAU LING v. MILLION JOIN LTD t/a TSUPO SEAFOOD RESTAURANT

bjbj CACV 8/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 8 OF 2003 (ON APPEAL FROM DCEC NO. 857 OF 1998) BETWEEN CHUNG SAU LING Applicant and MILLION JOIN LIMITED trading as TSUPO SEAFOOD RESTAURANT Respondent Before : Hon. Cheung J.A. and Hon. Yuen J.A. in Court Date of Hearing : 8 July 2003 Date of Judgment: 16 July 2003 J U D G M E N T Hon. Cheung J.A. : The proceedings The applicant sustained injuries in the course of work on 12 June 1997 and commenced employees compensation proceedings against the employer respondent on 2 December 1998. By an order dated 13 January 1999 H H Judge To ordered that, by consent, judgment on liability be entered for the applicant against the respondent with damages to be assessed. The applicant has further commenced an action seeking common law damages for personal injuries against the respondent. On 30 September 2002, H H Judge Muttrie ordered that the employees compensation case be tried immediately after the personal injury case. The appeal On 2 October 2002, the respondent issued a notice of appeal against the assessment contained in the Certificate of Review of Assessment ( the Certificate ) dated 15 November 2000 issued by the Employees Compensation (Ordinary Assessment Board) ( the Board ). On 5 November 2002, H H Judge Muttrie adjourned the respondent s application for argument. Under section 18(1) of Employees Compensation Ordinance ( the Ordinance ) the time limit for an appeal against the Certificate is six months. When the respondent filed the notice of appeal, there was a two year delay. The notice of appeal did not specify that the appeal was out of time. On 19 November 2002, the respondent through its solicitors filed its affirmation and asked for extension of time to appeal. The applicant s solicitors filed an affirmation in response on 29 November 2002. H H Judge Muttrie on 18 December 2002 granted the respondent extension of time to appeal and ordered the appeal to be heard together with the assessment of damage in the applicant s employees compensation claim. He ordered that the costs of the application for extension of time be given to the respondent. The applicant now appeals against the orders. Reason for the delay The Certificate of 15 November 2000 was in fact given after review by the Board. The Board had earlier on 24 July 2000 issued a Certificate of Assessment assessing loss of earning capacity at 33% and the period of sick leave. Objections were raised by both parties to the Board. The Board, however, affirmed its earlier assessment. The first task that the respondent has to show in an application for extension of time is the reason for the delay. There has been a substantial delay of two years. Apart from stating that it has always been the intention of the respondent to appeal against the assessment, it has never explained why the application was only lodged in October 2002. After the Certificate, the respondent obtained further medical reports and disclosed them to the applicant. The respondent s solicitors stated that after the checklist hearing on 23 November 2001, she informed the applicant s solicitors that the respondent intended to apply for leave to appeal out of time and asked him whether the applicant would consent to the application. The response was that he would take instruction and let her know. That is as far as the explanation for the delay goes. There is no explanation why there was delay for almost another year before the application was made. The explanation was only given on the hearing of this appeal by Mr. Lin, counsel for the respondent, that the failure to lodge the appeal within time was due to the oversight of his solicitors. Explanation is required Mr. Lin relying on the case of Yung King v. Ka Ming Hop Yick Engineering Co. & others DCEC 655/2000 argued that section 18 of the Ordinance does not impose any requirement for reasonable excuse before an extension of time can be granted. In our view this is an incorrect way of approaching the matter. The proviso to section 18(2) enables the court if it thinks fit to extend the time of appeal. In order to enable the court to exercise its discretion it has to be provided with all relevant factors including the length of delay, the reason for the delay and the prejudice to the other party if the extension is granted and the merits of the application as well. This Court in Chan Kit v. Sam Wo Industrial Manufactory [1989] 1 HKC 115 has clearly stated that the nature of an section 18 appeal is by way of a re-hearing. This, however, does not mean that the respondent is not required to explain the delay particularly a delay as long as two years. This together with the other factors that I have stated will enable the court to decide whether the overall justice of the case requires an extension of time to appeal to be granted. The point to note is that the Court will not go into detailed arguments on these various factors but for a start, the party applying for an extension of time must present these matters for the court s consideration. In so far as Yung King held that an explanation for the delay is not necessary then it is wrong. Merits of the application In the present case given the explanation now provided by the respondent, the merits of the application clearly justify the granting of time. The Board in both assessments assessed the loss of earning capacity of the applicant at 33%. The certificate stated that the injury was, Right ankle injury resulting in right ankle pain; somatoform pain disorder (chronic type) Guarded Prognosis. On the other hand, the assessment by the medical experts of both parties in respect of the applicant s impairment of the whole person and loss of earning capacity is much lower. The applicant Impairment of whole person Loss of Earning Capacity Dr. Au Ka Kan (orthopaedic assessment) Dr. Chung See Yuen (psychiatric assessment) The respondent Dr. Chun Siu Yung (orthopaedic assessment) Dr. K. Singer (psychiatric assessment) 1-2% 1-2% While these reports were all prepared before the reassessment and were disclosed to the Board before it reaffirmed the 33% assessment, nonetheless the disparity in these assessments is substantial. Bearing in mind the Board was not required to give reasons for its assessment, obviously in view of the huge disparity in the assessment, the matter clearly warrants a re-hearing by the District Court on the percentage of loss of earning capacity of the applicant and the necessary period of absence from work as a result of the injury. The applicant submitted that she was advised by the Labour Department that the 33% was based on a combination of considerations such as orthopaedic injury, pain, psychiatric and psychological problems that arose as a result of the accident. In order to prepare her case, she can subpoena the doctors of the Board to give evidence and produce their records at the assessment hearing to show how the 33% was arrived at. Conclusion Subject to the point about the lack of an explanation for the delay, the judge was correct to grant time to the respondent to lodge the appeal. Now that an explanation has been proffered, the applicant s appeal from that decision is accordingly dismissed. Costs As to costs, the respondent was seeking an indulgence from the court. It only disclosed an explanation for the delay at the hearing of this appeal. The applicant was clearly justified in opposing the application below and pursuing this appeal. The respondent should bear the costs of the application including the costs of the hearing of 5 November and 18 December 2002 and also of the appeal. Hon. Yuen J.A. I agree. (Peter Cheung) (Maria Yuen) Justice of Appeal Justice of Appeal Applicant, in person, present Mr. Kenny C.P. Lin instructed by M/s Simmons & Simmons for the Respondent - PAGE - PAGE m [ m [ m [ m [ m [ m [ m [ m [ &`#$ J/. @\\HC-OA-WS-593\HP LaserJet 4 Plus Ne01: winspool \\HC-OA-WS-593\HP LaserJet 4 Plus \\HC-OA-WS-593\HP LaserJet 4 Pl \\HC-OA-WS-593\HP LaserJet 4 Pl 1994, No. 205 cacv.dot setup Microsoft Word 9.0 user 1994, No. 205 Title Microsoft Word Document MSWordDoc Word.Document.8