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Ku Mui Ying For Herself And On Behalf Of The Members Of The Family Of Yuen Chu Wing, Deceased v W. Hing Construction Co Ltd And Others

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date14 July 2021
Neutral Citation[2021] HKDC 830
Year2021
Judgement NumberDCEC2360/2020
Subject MatterEmployee"s Compensation Case
CourtDistrict Court (Hong Kong)
DCEC2360/2020 KU MUI YING for herself and on behalf of the members of the family of YUEN CHU WING, deceased v. W. HING CONSTRUCTION CO LTD AND OTHERS

DCEC 2360/2020

[2021] HKDC 830

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2360 OF 2020

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IN THE MATTER OF AN APPLICATION BETWEEN

KU MUI YING (古玫英) for herself
and on behalf of the members of the family of
YUEN CHU WING (袁柱榮), deceased		 Applicant

and
W. HING CONSTRUCTION COMPANY LIMITED 1st Respondent
SUEN TAT METAL MACHINE FACTORY LIMITED 2nd Respondent
WAI LEUNG FIRE ENGINEERING LIMITED 3rd Respondent

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Before: His Honour Judge KC Chan in Chambers (Open to Public)

Date of Hearing: 25 June 2021

Date of Decision: 14 July 2021

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DECISION

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1. This matter concerns a fatal incident.

2. Madam Ku Mui Ying (“the AP”), the widow of Mr Yuen Chu Wing (“the Deceased”), now by summons dated 25 November 2020 applies for leave under section 14(4) of the Employees’ Compensation Ordinance Cap 282 (“ECO”) to file an application out of time to seek compensation from the 1st respondent, the principal contractor (“R1”), the 2nd respondent, the subcontractor (“R2”) and the 3rd respondent (“R3”). It is the AP’s case that either R2 or R3 was the Deceased’s employer.

3. The application is opposed by all the respondents represented by Ms Christina Lee of counsel. The AP is represented by Ms Lorinda Lau of counsel.

The law

4. Section 14(4) of the ECO empowers the Court to receive and determine an application for employees’ compensation out of the prescribed period of 24 months after the accident if it is satisfied that there was reasonable excuse for the failure to make the application within time.

5. In considering whether there was reasonable excuse, the Court may take into account all the circumstances of the case including the reason for the delay, the length of the delay, the merits of the claim, and whether prejudice would be caused to the interests of the intended respondent (Tsang Loi Fat v Sun Fook Kong[1] ).

6. In Tsang Loi Fat, the Court of Appeal further observed at §§11 and 12:-

“In considering the reason for the delay, the Court has to take into account the following factors:

1) The age, education level, intelligence and background of the Applicant;

2) Generally speaking, Applicant’s ignorance of the law is not a reasonable excuse for the delay. On the contrary, if the Applicant is sufficiently learned and knows how to make a claim, but fails to do so within the prescribed period, this is a factor to support the contention that the Applicant has failed to provide a reasonable explanation for the delay;

3) The health condition of the Applicant, whether he was fully aware of the extent of his injury before the expiry of the prescribed period for the claim; or whether his failure to make the claim before the expiry of the prescribed period is because of his illness; and

4) Whether the Applicant’s failure to make a claim before the expiry of the prescribed period was induced by the conduct of or words said by his employer, insurance company, or a third party.

12. The abovementioned is not meant to be an exhaustive list. This Court only sets out some relatively common factors here, whether the Court would grant an extension of time depends on the facts of each case.”

7. The Court has an unfettered discretion, but its such power should be exercised liberally[2].

8. Both counsel also referred me to the often-cited passage in the judgment by HHJ Charles in Wong Man Tak v Shaws & Sons Limited as to what amounts to a reasonable excuse in section 14(4) of ECO:-

“A reasonable excuse in the ordinary sense of the phrase means in relation to a failure by an applicant to make his application for compensation within the prescribed period that the failure was due to such cause or causes that it ought, as a matter of reason, to be excused. …… Moreover, an applicant was not excused if he had a reasonable cause which operated only for part of the period. He had to have reasonable causes for the whole period. Thus while an applicant might delay making his claim until the last moment of the prescribed period, he was not entitled to be excused if his last moment claim was prevented by a reasonable cause unless he could show that he had good reason for not making his claim before that cause arose. … . The principle to be deduced from the foregoing is, I think, that an applicant has a reasonable excuse for not making an application to the court for compensation within the prescribed time if his failure was due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part.”

Background and the incident

9. At the time of the incident, the Deceased was 60 years old. He was then working as a foreman performing the fire services installation works at the construction site at New Kowloon Inland Lot No.6313 (“the Site”). Of particular relevant is, and it was not disputed, that his job duties included the inspection of pipe layouts.

10. The Deceased’s wife, the AP, was educated up to Form 5. They were married in 1989. The AP has all along since been a housewife and a full-time mother and has never worked a job. They have 2 children, born in 1990 and 1993 respectively.

11. At about 3pm on 12 March 2018, the Deceased was found lying face up and unconscious on the floor of the switch room near staircase No. 1 on 6th Floor at the Site. His head was near the partition wall which was then unfinished and was only built up to about 2 feet high. The Deceased’s co-worker working on the same floor, one Mr Cheung, R2’s foreman one Mr Chan, R1’s safety officer and a first aider were all immediately informed. The Deceased was then sent to Department of Accident & Emergency of United Christian Hospital (“A&E of UCH”). Later that day, he was transferred to Queen Elizabeth Hospital.

12. Unfortunately, the Deceased was certified dead at 3:30pm on 14 March 2018. The AP was informed by the hospital staff that the cause of death would be determined upon further investigation.

Complexities regarding the determination of the cause of the incident and whether it was an industrial accident

13. Evidently, the cause of the incident and whether it was an industrial accident would be much disputed in the substantive application for compensation if I allow this application, I will therefore refrain from going into these matters any more than strictly necessary for the disposal of this application.

14. The A&E of UCH found there was mild swelling and abrasion over occiput and CT scan showed there was right acute subdural hematoma and subarachnoid haemorrhage with occipital bone fractures.

15. The investigation officer of the Labour Department (“the Investigation Officer”) all together interviewed or contacted 20 witnesses in the course of time, some of them were medical officers that had treated the Deceased previously on other occasions. There was no eyewitness of the incident. None of the witnesses at the Site heard anything. The Deceased’s safety helmet was located beside his head. His tools were found nearby. There was no sign of work-above-ground because no working platform, ladder or work-above-ground tools were seen at the scene. There was no sign of electrocution as no source of electricity was found at the scene. The ventilation and temperature were normal and lighting sufficient at the scene. The Deceased’s colleagues all said that there were no signs of abnormality noted regarding the Deceased that day.

16. In the course of the investigation, the medical history of the Deceased was obtained and referred to. Among others, it was shown that the Deceased was diagnosed in early October 2001 to have suffered from left parietal subdural acute on chronic hematoma, for which he was hospitalized for several days[3].

17. Concerning whether the incident was an industrial accident, apparently there was emphasis placed on the fact that no construction work was being conducted at the scene at the time. This was a matter repeated referred to by Ms Leung Siu Lin (“Leung”) of United Adjusters (HK) Ltd. (“UA”), the loss adjustor, in her communications with the AP, and a matter also now relied on by the respondents. That however is really not the issue for the purpose of employees’ compensation, which is whether the accident arose out of and in the course of the employment. Ms Lau referred to (a) the Investigating Officer’s report saying that the Deceased was inspecting the pipe layout, (b) a picture taken at the scene at the time[4] showing that there was a vertical pipe laid near the entrance of the switch room, and (c) other pictures of the scene showing that there were bricks lying around and there were what seemed to be sheets of old plywood placed on the floor, the edges of which were about 1 to 2 inches above ground. Ms Lau submitted that there was a real possibility that the Deceased might have tripped over the bricks or over the edge of the sheets and fell with his head hitting the edge of the unfinished dividing wall. This possibility apparently had not been considered by the Investigating Officer.

18. The autopsy report said that the cause of death appeared to be “traumatic skull fracture, traumatic right subdural hemorrhage, cerebral contusions”[5].

19. Apparently the Coroner’s Court called for a Police Report for the purpose of deciding whether to hold an inquest and time had been taken by the Police to compile their report. It was only by a letter dated 17 March 2020 that the Hong Kong Police informed the AP that the Coroner’s Court had decided not to hold an inquest.

Salient events

20. I think it helpful next to set out the salient events that occurred since the...

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