Employees’ compensation – whether time to appeal against Forms 9 and 6 to be extended under s. 18(2)
X was injured while working as a bus driver for D. The Employees’ Compensation (Ordinary Assessment) Board issued a certificate of review of assessment (“Form 9”) on 23 May 2012 and a certificate of review of compensation assessment (“Form 6”) on 30 May 2012. On 5 July 2012, X signed D’s standard Discharge Form in Chinese to obtain monies stated to be in “full and final settlement of all losses and personal injuries” suffered as requested by D. On 28 January 2013, X brought an employees’ compensation claim against D, who sought to strike it out for being frivolous, vexatious and/or otherwise an abuse of process. X objected, relying on non est factum. In an affirmation, he stated that D did not explain the legal consequences of the Discharge Form and he signed it believing it was merely to acknowledge receipt of the cheque, which he desperately needed, and was not legally binding.
Held, dismissing the application, that:
- This was not a plain and obvious case for striking out X’s claim. First, there was an apparent inconsistency between the title of the Discharge Form, where “nature of payment” was described as “employees’ compensation”, and its contents, which extended to the settlement of “all losses and personal injuries”. X’s understanding was that it covered employees’ compensation only. He did not intend to abandon all claims arising out of the accident and signed the document only to obtain the settlement sum, which was small and unlikely to have included common law damages. Given X’s unchallenged evidence, the possibility that he was rushed into signing the Discharge Form and was mistaken as to its true nature and effect could not be excluded.
- D’s argument that X should have known of his right to lodge an appeal in the District Court against Form 9 within six months was rejected. Given the apparent inconsistency and ambiguity in the Discharge Form, it was doubtful whether X could appreciate the full legal impact of signing the document without any legal advice. He was not given the opportunity to carefully read or have the contents explained to him before signing.
- There were no negotiations before D simply told X to collect the outstanding balance of employees’ compensation the same day. It was unfair to expect X to have enquired about further appeals; and for D to rely on standard clauses, when X was a layman in need of money and without legal assistance. In such circumstances, the Court would likely exercise its discretion to extend the period to appeal against Forms 9 and 6 under s. 18(2) of the Employees’ Compensation Ordinance (Cap. 282) notwithstanding that the time had elapsed.