Introduction

Pursuant to section 14 of the Employees’ Compensation Ordinance (Cap. 282) (the “Ordinance”), an application for employees’ compensation should be made within 2 years from the occurrence of the accident causing the injury. In Muhammad Asghar v Kwok Kong Moon [2024] HKCA 295, the Court of Appeal granted leave for the applicant to continue with his application for employee’s compensation which was made out of time, on the basis that there is reasonable excuse for the delay.

Background

The applicant was a renovation worker. He had an accident in May 2016 during the course of his employment at a restaurant operated by a company, whose sole member and director is the respondent. In the employees’ compensation application filed on behalf of the applicant in February 2017 (the “1^st Application”), the applicant’s former solicitors (the “1^st Lawyers”) wrongly named a company which was only incorporated 3 months after the accident as the applicant’s employer.

Subsequently, upon discovering that it had named the wrong company in the 1^st Application, the 1^st Lawyers applied by summons to amend the name of the respondent. However, the summons was later withdrawn by the 1^st Lawyers who failed to explain why they had named the wrong company as the applicant’s employer. Accordingly, the 1^st Application was dismissed.

In 2021, the applicant’s new solicitors (the “2^nd Lawyers”) commenced the present employees’ compensation application (the “2^nd Application”) against the respondent and applied by summons for leave to commence the application out of time under section 14(4) of the Ordinance (the “Leave Summons”).

The Leave Summons was eventually dismissed. The applicant appealed against the dismissal of the Leave Summons, contending that the Judge had erred in concluding there was no reasonable excuse for the delay in bringing the 2^nd Application.

The Applicant’s grounds of appeal

The applicant relied on, amongst others, the following grounds of appeal:

1.    The Judge had erred in erroneously finding that both the 1^st lawyers and the applicant were to blame for mistakenly naming the wrong respondent in the 1^st Application and for the delay in bringing the 2^nd Application; and

2.    The Judge had erred in failing to take into account that the 2^nd Application would not cause any prejudice to the respondent.

The law

According to section 14(1) of the Ordinance, an employee’s application for compensation shall be made within 24 months from the occurrence of the accident causing the injury.

Section 14(4) of the Ordinance stipulates that:-

“The Court may receive and determine any application for compensation in any case notwithstanding that … the application has not been made in due time as required by [subsection (1)], 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.”

The ruling of the Court of Appeal

The Court of Appeal allowed the applicant’s appeal and granted leave for the applicant to continue with the 2^nd Application.

The Court found that the applicant had reasonable excuse for the delay in bringing the 2^nd Application. Instead of the applicant being at fault, the delay could be explained by the 1^st Lawyers’ failure to conduct a company search before bringing the 1^st Application, and hence the wrong employer was named. It should be noted that the applicant is an uneducated layman who did not have independent legal advice until he approached the 2^nd Lawyers. Considerable time and effort were incurred by the 2^nd Lawyers to obtain the papers from and make enquiries with the 1^st Lawyers and the Labour Department.

The Court of Appeal also found that the Judge should have taken into account that there was no prejudice to the respondent, whose conduct had caused confusion and difficulty for the applicant in establishing his employer’s identity.

Takeaway

This case serves as a reminder that an employee’s application for compensation under the Ordinance shall be made within 24 months from the occurrence of the accident causing the injury, or in the case of death, within 24 months from the date of death. Although section 14(4) of the Ordinance stipulates that the Court may determine a late application, it should be noted that such late application would only be accepted by the Court if there is reasonable excuse for the delay.