LAM SIU PING v. THE SECRETARY FOR JUSTICE for and on behalf of LEISURE AND CULTURAL SERVICES DEPARTMENT

HCPI 345/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 345 OF 2010

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D E C I S I O N

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I. INTRODUCTION

1.  The Plaintiff, a civil servant employed by the Leisure and Cultural Services Department (“LCSD”), claims to have suffered personal injuries as a result of two accidents in his course of his work and employment on 16 April 2005 and 5 August 2008 respectively (“1^st and 2^nd Accidents”).

2.  On 9 July 2010, the Plaintiff commenced the present action against the Defendant (on behalf of the LCSD) to claim damages for personal injuries and other loss and damages suffered as a result of the 1^st and 2^nd Accidents, which he avers were caused by the Defendant’s negligence, breach of common duty of care, breach of statutory duties and/or breach of implied terms of the contract of employment.

3.  In his Statement of Claim filed on 13 December 2010, the Plaintiff claims:

(a)  he was assigned to work at a recreation ground in Kwun Tong (“Recreation Ground”);

(b)  on 16 April 2005, he was required and/or instructed by his supervisor to cut stripe bamboos planted at the Recreation Ground (some of which were grown to a height of about 30ft) down to about 7ft (“1^st Task”);

(c)   whilst he was using an electric chain saw (“1^st Saw”) to cut the stripe bamboos, a strong wind caused a few of them to swing down suddenly and trap the 1^st Saw which was still switched on, thereby twisting his right upper limb and shoulder (ie the 1^st Accident);

(d)  as a result, he sprained his right shoulder and wrist;

(e)   he was unaware of the seriousness of the injury, and continued to work until the end of the day despite pain in his right shoulder and wrist;

(f)    he did not have to work on 17 April 2005 (Sunday);

(g)  he applied medicated liquor to his right shoulder, but the pain got worse, so on 18 April 2005 he sought treatment at the accident and emergency department (“AED”) of United Christian Hospital (“UCH”);

(h)  although he was granted sick leave from 18 April 2005 to 27 July 2007, he resumed work on 15 April 2007 and submitted to his superior a certificate by UCH recommending light duties;

(i)    but he was assigned and/or instructed to carry out heavy demand duties as before;

(j)    on 1 September 2007, he was assigned to work at Yuet Wah Street Playground (“Playground”);

(k)  on 5 August 2008, he was required and/or assigned by his superior to use an electric chain saw (“2^nd Saw”) to cut three withered trees planted at the Playground;

(l)    whilst he was pulling the front hand guard of the 2^nd Saw to release the chain break, it suddenly rebounded forward with great force and caused injury to his right middle finger (ie the 2^nd Accident).

4.  In respect of the 1^st Accident, the Plaintiff further avers that the Defendant failed to provide him “with adequate preparation for his work, and/or safe equipment, and/or a safe place, and/or a safe system of work, and/or to ensure that a safe system of work was implemented and/or adhered to at the material time, thus exposing [him] to an unnecessary risk of damage and/or injury”.  He also alleges that the Defendant failed to (a) supervise or organise his work adequately or at all for the 1^st Task to be carried out safely, (b) assess the risk of the 1^st Task thereby exposing him to unnecessary risk of injury, (c) give him proper/sufficient instructions or at all for carrying out the 1^st Task using the 1^st Saw, (d) warn him of the dangers associated with the 1^st Task adequately/properly/reasonably or at all, and (d) provide any staff/ co-workers/manpower to assist him in the 1^st Task.

5.  By the Statement of Damages also filed on 13 December 2010, the Plaintiff claims damages quantified at HK$1,499,732.63 with interest thereon to be assessed.  Particulars of some heads of damages claimed in respect of the 1^st Accident are as follows:

(a) HK$600,000.00 for pain, suffering and loss of amenities due to incapacity (including persistent residual pain and reduced mobility) as a result of the 1^st and 2^nd Accidents;

(b) HK$237,600.00 (ie HK$13,000.00 x 24 months x 1.05) for pre-trial loss of earnings and MPF benefits for the 1^st Accident from 18 April 2005 to 14 April 2007;

(c)  HK$120,000 for reduction/limitation of chance for promotion to a higher rank and disadvantage in the labour market should he lose his job as a result of the 1^st and 2^nd Accidents;

(d) HK$14,000.00 and HK$10,000.00 for travelling and tonic food expenses for the 1^st and 2^nd Accidents.

The Plaintiff reserves the right to claim for loss of future earnings and MPF benefits (if any) and future medical expenses (if any) in the Revised Statement of Damages.

II.  DEFENDANT’S SUMMONS

6.  On 7 April 2011, the Defendant applied by summons (“D’s Summons”) to strike out parts of the Indorsement of Claim, the Statement of Claim and the Statement of Damages that relate to claims for damages and other reliefs in respect of personal injuries arising out of or in connection with the 1^st Accident (“1^st Accident Claim”) (ie paragraphs 5-6 of the Statement of Claim, paragraphs 2(a)-(i) of the Statement of Damages as well as parts of the Indorsement of Claim, paragraphs 1, 3, 11 and 13 of the Statement of Claim and paragraphs 1, 3-4, 6-8 and 10 of the Statement of Damages insofar as they relate to the 1^st Accident Claim, collectively “Impugned Pleadings”) and to dismiss the 1^st Accident Claim on the basis that:

(a) the 1^st Accident Claim was time-barred under section 27 of the Limitation Ordinance Cap.347 (“Ordinance”) at the commencement of the present action;

(b) the Impugned Pleadings (i) disclose no reasonable cause of action, (ii) are frivolous and vexatious, (iii) may prejudice, embarrass or delay the fair trial of the action, and (iv) are otherwise an abuse of the process of the court under Order 18 rule 19 of the Rules of the High Court (“RHC”).

7.  Unless otherwise stated, references to “sections” in this Decision are references to sections in the Ordinance.

III.  PLAINTIFF’S SUMMONS

8.  On 26 April 2011, the Plaintiff applied by summons for leave to disapply section 27 in respect of the 1^st Accident Claim pursuant to section 30 (“P’s Summons”).

IV.  AFFIRMATION EVIDENCE

9.  On 11 June and 2 August 2011 respectively, the Plaintiff filed his two affirmations in support of P’s Summons and to oppose D’s Summons. On 7 April and 8 July 2011 respectively, the Defendant filed two affirmations of Chan Pak Fai (Manager (Parks and Playgrounds) Kwun Tong I of the LCSD, “Mr Chan”) in support of D’s Summons and to oppose P’s Summons.  Unless otherwise stated, the evidence summarised below is substantially drawn from the Plaintiff’s affirmations.

(a) Plaintiff’s employment and work

10.  According to the Plaintiff, he joined the LCSD on 31 October 1979 as “Workman II” and was later promoted as “Workman I”.  He was further promoted as Technician (gardening team) in 1989 and was assigned to work at the Recreation Ground in 1996.  His duties included planting/pruning flowers, mowing lawns, cutting tree branches, carrying out insect control and other maintenance gardening works.

(b) 1^st Accident and its aftermath

11.  In his affirmations, the Plaintiff described the 1^st Accident and its aftermath as set out in paragraphs 3(b)-(h) above.  When he attended UCH’s AED on 18 April 2005, he reported an episode of injury on duty “while cutting trees”.  There was tenderness over the right shoulder with full range of movement and over 1^st dorsal compartment with full thumb movement.  There was no fracture, and he was discharged with analgesics.

(c) Medical treatment

12.  Due to persistent right shoulder, elbow and wrist pain, the Plaintiff sought treatment at the Kwun Tong General Outpatient Clinic (“KT Clinic”) on 21 and 26 April and 3 May 2005.  He was prescribed analgesics.  The Plaintiff claims his right shoulder/wrist pain became serious and persistent, so UCH’s AED referred him for orthopaedic consultation.  The relevant consultation summaries refer to inter alia “[injury on duty] on 16/4/05 gardener  Right shoulder injury, by metal object  See [orthopaedics and traumatology] in 6/5/05  mainly on shoulder and wrist” and “[injury on duty] 16/4/05  [right] shoulder sprain and [right] elbow pain and [right] wrist pain after sprain injury  no contusion or fall  no other limb sprain”.

13.  On 6 May 2005, the Plaintiff attended UCH’s orthopaedic outpatient clinic.  The medical report of UCH’s department of orthopaedics and traumatology (“DOT”) dated 4 January 2011 notes that the Plaintiff suffered sprained right shoulder/wrist with tenderness over right wrist radial side and decreased sensation over right thumb.

14.  The Plaintiff attended seven further orthopaedic follow up between 13 May and 22 August 2005. His right wrist condition was compatible with de Quervain’s disease.  At first, his right wrist pain was static and severely “[affected] [activities of daily living], eg twisting towel”, but there was some decrease after steroid injection.  As there was not much relief, he asked for a wrist splint, and right wrist pain decreased on splintage.  The Plaintiff reported his right wrist pain “subsided 80%” by August 2005.

15.  The Plaintiff still had persistent right shoulder pain for which he was referred for physiotherapy.  It was only a little better with physiotherapy.  Tear and tendonitis of right rotator cuff were suspected due to the significant right shoulder pain. Arthroscopy was offered, but the Plaintiff preferred conservative treatment.  As a result of poor response to physiotherapy for right shoulder impingement and because the right shoulder pain did not improve (7-8/10), in August 2005 the Plaintiff agreed to surgical treatment.

16.  But the arthroscopy scheduled for 8 September 2005 was cancelled.  The Plaintiff failed his pre-operation assessment due to symptoms of upper respiratory tract infection and asthmatic attack, and the anaesthetist recommended postponing the operation for six weeks for his condition to stabilise.  The arthroscopy was re-arranged to take place on 1 November 2005.

17.  The Plaintiff was admitted to UCH on 31 October 2005.  Arthroscopy of right shoulder and arthroscopic acrominoplasty done on the following day were uneventful, and he was discharged on 3 November 2005.  The operative diagnosis was “[shoulder] impingement syndrome (Rt)”. On 7 November 2005, he started physiotherapy.  At the follow up on 30 November 2005, his right shoulder pain decreased.  On 28 December 2005, there was still “pain > 90 abduction”.  In all, the Plaintiff attended 31 physiotherapy sessions from 3 November 2005 to 2 March 2006 and reported 10-20% subjective improvement over his right shoulder condition.  He was discharged from physiotherapy as his progress was static.

18.  At the follow up on 6 March 2006, the Plaintiff reported his right shoulder pain was the same with increase in right wrist pain after exercise.  On 10 April 2006, he still had right shoulder pain and claimed he could not work yet because he had to cut plants with scissors.  At the work assessment in May 2006, maximum lifting from floor to knuckle was 29lbs, from knuckle level 23lbs, and from floor to shoulder 24lbs, and bilateral/ unilateral pulling forces were limited by pain.  The Plaintiff’s working capacity was found to marginally match his previous job demand, so he was suggested to return to work but to avoid lifting more than 25 lbs or operating electric saw machine.

19.  At the follow up on 19 May 2006, there was still right shoulder pain in abduction, and the Plaintiff claimed he could not resume duty yet.  By 17 July 2006, he claimed there was still right shoulder pain that increased on arm elevation, and he “cannot resumed work”.  The doctor’s impression was “? recurrent/worsening of SLAP lesion”, and MRI right shoulder was booked. At the follow up on 18 September 2006, the Plaintiff was advised MRI right shoulder was suggestive of a small tear of the supraspinatus.  But further arthroscopy of the right shoulder “+/- open repair” scheduled for 17 October 2006 was postponed since the Plaintiff failed the pre-operation assessments for anaesthetisation on 25 September and 21 November 2006 due to previous asthma symptoms.  At the follow up on 22 January and 5 March 2007, the Plaintiff was worried about his asthma and was not keen for the further arthroscopy. Steroid injection was given and sick leave was extended.  He was referred for assessment by the Medical Assessment Board (“MAB”).

20.  The Plaintiff resumed work on 15 April 2007.  At the follow up on 30 April 2007, there was “still [right] shoulder pain mostly post aspect at times”, but he was not keen on surgical treatment.  The consultation notes record he had resumed work for “~1+ wk marginal coping  negotiating with department for the sick leave issue”.  The Plaintiff attended UCH’s AED on 5 June 2007 for right tennis elbow. At the follow up on 11 June 2007, he was given a tennis elbow splint.  He attended UCH’s AED again on 20 August 2007 for right tennis elbow.  Steroid injection was given for his right tennis elbow at the follow up on 3 September 2007, but he was still not keen on surgery for his right shoulder condition.

21.  The Plaintiff attended UCH’s AED on 15 October 2007 for right shoulder muscle pain.  At the follow up on 26 November 2007, he claimed his right shoulder pain was the same.  The doctor advised him to consider further arthroscopy, and he indicated he would if the tear increased in size.  The right tennis elbow was better after the steroid injection.

22.  At the follow up on 18 February 2008, the Plaintiff claimed his right shoulder pain worsened with weather change, and further MRI right shoulder was scheduled for 10 August 2009.  Meanwhile, he was on tennis elbow band for his right elbow pain, and he requested steroid injection.  At the follow up on 28 April 2008, he still had right tennis elbow and right scapular pain with increase of pain on exertion.  The follow up records note “repeated attendance to AED since multiple musculoskeletal pain”.  At the follow up on 23 June 2008, he still complained of right shoulder, elbow and other joint pain, but was “not keen for OT now”.

23.  On 5 August 2008, the Plaintiff suffered the 2^nd Accident. On 5 and 11 August and 1 September 2009, he attended UCH’s AED for sprained right middle finger.  Since then, he received treatment at UCH’s DOT for injuries to both his right shoulder and right middle finger.  At the follow up on 10 and 22 September, 6 October and 5 November 2008, his right shoulder pain was similar and persistent.  By 3 December 2008, there was mild improvement of his right third metacarpophalangeal joint pain after physiotherapy.  The position remained the same at the follow up on 9 January 2009, and his right shoulder pain was static.  At the follow up on 11 February 2009, it was noted that the right shoulder was pending MRI in August 2009, and the Plaintiff was referred to the “hand team for opinion” “in view of persistent pain”.

24.  On 24 February 2009, the Plaintiff attended “hand team” consultation. Day surgery for his right middle finger injury took place on 22 July 2009.  He attended follow up for such injury on 12 May, 16 June, 28 July, 11 August, 8 September, 9 October and 20 November 2009.

25.  The further MRI done on 10 August 2099 revealed (a) osteoarthritis of acromioclavicular joint, (b) articular partial tear at supraspinatus tendon, and (c) interstitial partial tear at infraspinatus tendon.  After consulting the doctor at UCH’s DOT on 26 August 2009, the Plaintiff decided to proceed with further arthroscopy repair if he was anaesthetically fit.  He was found to have “poor [blood pressure] control during [pre-operative] assessment” and was put under medical care with adjustment of anti-hypertensive drugs.  The medical notes for the follow up on 8 January 2010 state that “shoulder problem already passed 3 yrs [therefore sick leave] not useful  explained MAB if static  likely compensation problem”.

26.  According to the report by UCH’s AED dated 8 February 2011, the Plaintiff attended UCH’s AED on 9 and 22 January 2010 for low back pain.  He was admitted to UCH on 4 February 2010. Further arthroscopy of shoulder, arthroscopic acrominoplasty and rotator cuff repair were done on the following day.  The intra-operative finding was “1 x 0.6cm incomplete rotator cuff tear mainly on bursal side repair done”.  Post-operatively, the Plaintiff was put on abduction brace and discharged home on 6 February 2010 for follow up in two weeks.  Physiotherapy treatment started on 18 February 2010.

27.  At the follow up on 19 February 2010, the Plaintiff complained of increase in pain, stiffness and swelling over the right hand and numbness after the right shoulder operation.  “Since still need [physiotherapy] for shoulder, will provide [sick leave]  Stop [sick leave] when [physiotherapy] for shoulder finished and then MAB”.  At the follow up on 23 February 2010, the wound and finger movement were “Ok” and pain was decreasing.  The Plaintiff would be off abduction pillow in two weeks and would start gentle mobilisation exercise.  He then continued with physiotherapy and occupational therapy.  At the follow up on 16 April 2010, there was gross swelling/inflammation over the whole right upper limb with diffuse pain and numbness.  Sick leave was continued.  At the follow up on 1 June 2010, the shoulder pain only improved mildly, and there would be physiotherapy training for eight more weeks.  According to the report by UCH’s AED dated 8 February 2011, the Plaintiff attended UCH’s AED on 16 July 2010 for low back pain.  At the follow up on 30 July 2010, there was still right upper limb swelling, numbness, stiffness and resting pain.  Physical examination revealed swollen right forearm/hand with diffuse tenderness and stiffness of wrist/fingers, sweating of hand and inability to make a full fist.  He developed right forearm ulcer for more than two weeks after scratching on the dressing.  The impression was “? Chronic regional pain syndrome  for bone scan and pain team assessment  to call back if ulcer showed growth”.  In all, the Plaintiff received 37 sessions of physiotherapy from 6 February to 23 August 2010.  He reported 30-40% subjective improvement over his right shoulder condition, and was discharged from physiotherapy as his progress as static.

28.  At the follow up on 24 August 2010, the Plaintiff’s right shoulder pain was similar, and there was not much improvement.  Although he was discharged from physiotherapy, he was to continue with occupational therapy training.  At the follow up on 7 September 2010, in view of the static condition, it was planned to discharge him from the hand clinic and to refer him for MAB assessment for his right middle finger injury.  On 8 September 2010, the Plaintiff requested sick leave until such MAB assessment.  Such MAB assessment was still pending at the follow up on 16 September, 18 October, 15 November and 13 December 2010.  The bone scan showed no increase uptake suggestive of complex regional pain syndrome.  On 14 December 2010, the Plaintiff attended UCH’s AED for low back pain.

29.  On 10 January 2011, the Plaintiff was referred for work capacity evaluation by UCH’s occupational therapy department.  He complained of right upper limb pain upon exertion. Maximum lifting from floor to knuckle and knuckle to shoulder was 5lbs with limitation in bilateral/unilateral pulling forces.  As he had already resumed work, he was suggested to continue to work with the following modifications, namely, (a) avoid lifting more than 5lbs, (b) do not operate electric sawing machines/tools for cutting grass and stems, and (c) avoid climbing ladder.

30.  The Plaintiff claims he regularly attended clinics/hospitals for problems caused by the 1^st Accident. From 6 May 2005 to 13 December 2010, he attended follow up at UCH’s DOT about 63 times.  He further claims that as a result of the 1^st Accident he suffered and is still suffering from (a) right shoulder pain causing numbness of right upper limb, (b) aggravated right shoulder pain during humid and rainy weather, (c) weakness of the right upper limb including inability to carry heavy object, and (d) reduced range of movement of right upper limb.  Even though he has resumed working in his pre-accident employment, he believes his prospects for further promotion would be affected by his right shoulder injury, and he would suffer great detriment if the 1^st Accident Claim were time-barred.

(d)  Sick leave

31.  According to Mr Chan, the Plaintiff’s sick leave for attending UCH’s AED on various occasions between 5 June 2007 and 14 December 2010 for right tennis elbow, right shoulder muscle pain, low back pain and sprained right middle finger was unrelated to the 1^st Accident.  He claims that some sick leave days during the period from 18 April 2005 to 17 June 2007 were unrelated to the 1^st Accident, eg sick leave granted on 7, 9-10, 22 and 31 May 2007, 20-22 and 26-27 June and 4-6, 19 and 23-27 July 2007 for upper respiratory tract infection, lung problem, surgical problem and back pain, right elbow pain, diarrhoea and right elbow pain, lung disease and right tennis elbow.

32.  The Plaintiff in his 2^nd affirmation accepts that some sick leave were unrelated to the 1^st Accident and he had given written confirmations to such effect, but he says this is not relevant to the question of whether the 1^st Accident Claim should proceed.  He further disagrees that his complaints of right upper limb problems such as right tennis elbow and right shoulder muscle pain were unrelated to the 1^st Accident.

(e) Dealings with the LCSD and the Labour Department (“LD”)

33.  The Plaintiff did not inform the LCSD of the 1^st Accident on 16 April 2005 since he was unaware of the seriousness of his right shoulder injury.  But after seeking treatment from UCH’s AED on 18 April 2005, he reported the 1^st Accident and submitted his sick leave certificate to his supervisor on the same date.  So on 19 May 2005, the LCSD submitted a Notice of Accident (Form 2) in respect of the 1^st Accident to the LD.  Subsequently, the LD notified the Plaintiff to attend its occupational medicine unit (“OMU”) to register his sick leave.  Since the end of May 2005, the Plaintiff regularly attended the OMU to submit his sick leave certificates.

34.  When it was about 18 months after the 1^st Accident, the LD sent a standard letter dated 16 October 2006 to the Plaintiff reminding him of the requirements in sections 14(1) and 10(5) of the Employees’ Compensation Ordinance Cap.282 (“ECO”), ie any unresolved employees’ compensation claim must be made to the court within 24 months of the relevant accident, and any application for third year sick leave must be made to the court (“LD Letter”).

35.  On 24 October 2006, the Plaintiff had an interview with the OMU’s Ms Lam, who briefly explained to him the contents of the LD Letter and who requested him to sign a notice of intention not to apply to the court for employees’ compensation (“LD Notice”).  She told him the LD Notice was just to confirm his acknowledgment of the 24 months’ limitation rule for employees’ compensation proceedings.  He misunderstood that he would only have sick leave pay for another 6 months and that he would have to apply for extension of sick leave pay after 16 April 2007, and on such misunderstanding he signed the LD Notice.

36.  However, the LD Notice in fact states on its face that upon explanation to the Plaintiff he understood the requirements of sections 10(5) and 14(1) of the ECO, and that even though it was close to or over two years after the 1^st Accident he still preferred to resolve the matter of employees’ compensation through the LD and not make any application to the court.  The LD Notice on its face goes on to promise that the Plaintiff would immediately liaise with the LD to update his sick leave record if in due course his sick leave exceeded 24 months, and to confirm that he understood if his employer eventually refused to pay the relevant sum and the court eventually refused to extend time for him to issue his application out of time he would lose his right to claim.

37.  In late March or early April 2007, the LCSD informed the Plaintiff his sick leave pay would cease after 17 April 2007, and he should formally apply to the Director of the LCSD (“Director”) in writing for any further sick leave pay.  By a letter to the Plaintiff dated 29 March 2007 (“LCSD Letter”), the LCSD explained that a civil servant suffering injury on duty was only entitled to a maximum of 24 months’ full pay sick leave, so his full pay sick leave would expire on 17 April 2007, and “任何在這日期以後與是次工傷有關的病假，除非得到法院或部門首長的批准，將不得享有薪酬及不得視為《公務員事務規例》內的一般病假。因此，部門將會在2007年4月18日開始，停止對你發放與上述工傷有關的全薪病假。如果你希望獲得署長批准延長你可享有全薪的工傷病假，你必須提出書面申請”.

38.  Soon after receipt of the LCSD Letter, the Plaintiff sought advice from the OMU’s Ms Lam.  She advised that he could either file application for employees’ compensation with the District Court by himself, seek assistance from the Legal Aid Department (“LAD”) or write to the Director directly for discretionary extension of third year sick leave pay (ie “可以去區域法院攞份form填, 或者法援, 法援嘅就阿公問阿公攞就易啲, 有其它部門同事寫信俾部門署長都可以批多一年有薪工傷假”).

39.  Relying on Ms Lam’s advice and the suggestion in the LCSD Letter (ie “…… 公務員因工傷或因職業病而暫時喪失工作能力, 可在暫時喪失工作能力該日起計最多24個月內, 獲發放全薪病假。 …… 如果你希望獲得署長批准延長你可享有全薪的工傷病假, 你必須提出書申請”), the Plaintiff thought the District Court and/or the LAD would only deal with extension of the third year sick leave pay, so he decided not to trouble them and instead wrote directly to the Director on 16 April 2007 for such purpose (“P Letter”).  In the P Letter, the Plaintiff recounted his injuries, treatment and sick leave until 15 April 2007 as a result of the 1^st Accident, and stated that in view of his underlying condition, “所以醫生建議本人先賞試上班看看，若右手仍然痛 [illegible] 行的話，叫本人到急症室求診繼續取工傷病假。為此，希望康文署署長批准延長本人享有全薪的工傷病假……” At that time, the Plaintiff thought his application by the P Letter made within the 24 months’ limitation period fulfilled the statutory requirement.

40.  The Plaintiff tried to resume employment on 16 April 2007 because he could not maintain his living without any third year sick leave pay.  He claims he was assigned to handle the same duties as before even though he had not recovered completely from his right shoulder injury.  Two weeks after his resumption of work, his right shoulder pain became more serious. He was given further sick leave from 30 April to 6 May, 16 to 17 May, 11 and 17 June and 23 and 27 July 2007, but had to use his own vacation leave to substitute the above sick leave in order to enjoy continued full pay.

41.  By letter dated 14 September 2007, the LCSD told the Plaintiff that pending receipt of medical reports from UCH and East Kowloon Psychiatric Centre to confirm whether his sick leave after 15 April 2007 was related to the 1^st Accident, they could not confirm whether or not his application for third year sick leave pay would be approved, and further reminded him he could use his own annual leave to substitute no pay sick leave.  Upon receipt of such letter, the Plaintiff thought his application for third year sick leave pay had failed, but his claim for compensation for loss of earning capacity could be resolved with the LD’s assistance.  On 28 September 2007, he returned to work again.

42.  On 5 August 2008, the Plaintiff suffered the 2^nd Accident. On 25 August 2008, the LCSD submitted to the LD a Notice of Accident (Form 2) in respect of such accident.  Thereafter, the Plaintiff regularly attended the OMU to submit sick leave certificates.

(f) Legal claim

43.  During an occupational therapy session in/about June 2010, the Plaintiff chatted with a co-patient Mr Wong, who suffered injuries as a result of an industrial accident during his employment.  After the Plaintiff disclosed the 1^st and 2^nd Accidents to Mr Wong, Mr Wong told him that an application for employees’ compensation (including any application for third year sick leave pay as well as compensation for loss of earning capacity) must be made to the District Court (and not to the LAD or the Director) within 24 months from the date of the relevant accident even though MAB assessment for loss of earning capacity was still pending.  The Plaintiff claims it was only then he realised his previous understanding that he could apply to the District Court, LAD or the Director within 24 months from the date of the 1^st Accident for his third year sick leave pay was mistaken.

44.  On 30 June 2010, through Mr Wong’s introduction, the Plaintiff met his present solicitor Mr Mak, who advised him in conference as to (a) the statutory requirements for making application for employees’ compensation, particularly the requirements in section 14 of the ECO, and (b) the three-year time-bar for bringing any personal injury claim.  He immediately instructed Mr Mak to commence legal proceedings against the Defendant to claim damages for personal injuries suffered as a result of the 1^st and 2^nd Accidents.  The Writ of Summons in the present action was eventually issued on 9 July 2010.

45.  The Statement of Claim, Statement of Damages and the Plaintiff’s Medical Reports pursuant to Order 18 rule 12(1A)(a) of the RHC and paragraph 65 of Practice Direction 18.1 (“Medical Reports”) were filed on 13 December 2010.  Thereafter the Plaintiff applied for legal aid, and on 30 March 2011 Notice of Issue of Legal Aid Certificate was filed.

46.  The Plaintiff claims that neither his manager nor anyone else at the LCSD told him about common law actions and employees’ compensation proceedings.  The LD never mentioned any separate action for common law damages.  The Plaintiff says that as soon as he discovered he could claim, he acted promptly to bring the 1^st Accident Claim before the court.  He adds that since there were no witnesses to the 1^st Accident, the Defendant will not be prejudiced if the 1^st Accident Claim is allowed to proceed.

47.  On the other hand, Mr Chan says that when the present action was commenced the three-year time-bar for the 1^st Accident Claim had expired, so the Defendant’s solicitors wrote to the Plaintiff’s solicitors on 7 February 2011 to request the Plaintiff to abandon the 1^st Accident Claim with costs to the Defendant, but there was no reply.

V. ISSUES

48.  The relevant issues in relation to P’s and D’s Summonses are as follows:

(a) whether the 1^st Accident Claim has been time-barred under the primary limitation period in section 27(4)(a);

(b) whether such claim has been time-barred under the secondary limitation period in section 27(4)(b);

(c)  if the primary and secondary limitation periods have expired, whether the court should disapply section 27 in respect of such claim pursuant to section 30;

(d) whether the Impugned Pleadings should be struck out and the 1^st Accident Claim dismissed on the ground that the 1^st Accident Claim has been time-barred under section 27;

(e)  whether the Impugned Pleadings should be struck out and the 1^st Accident Claim dismissed for not disclosing any reasonable cause of action pursuant to Order 18 rule 19 of the RHC.

49.  In respect of (b) in the above paragraph, there are the following sub-issues:

(a) whether the date when the Plaintiff first had actual knowledge of the matters set out in section 27(6) was within or earlier than the three-year period prior to the issue of the Writ of Summons;

(b) whether the Plaintiff might reasonably have expected to acquire knowledge of the matters set out in section 27(6) from facts observable or ascertainable by him (if necessary with expert help) within or earlier than the three-year period prior to the issue of the Writ of Summons in accordance with section 27(8).

50.  Both Mr Clough, counsel for the Plaintiff, and Mr Szeto, counsel for the Defendant, have no quarrel with the legal principles set out in my decisions in Cheung Yin Heung v Hang Lung Real Estate Agency Ltd [2010] 3 HKLRD 67, Pang Kwok Lam v Schneider Electric Asia Pacific Limited HCPI90/2010 (unreported, 5 January 2011) and Mok Lai Fong v Ng Po Sui [2011] 3 HKLRD 67.  In the circumstances, I will rely on but not repeat those legal principles in this Decision.

51.  Mr Szeto in his written submissions submits that the Plaintiff has failed to plead and prove a date for acquiring “constructive knowledge” within three years preceding the issue of the Writ of Summons, so it is argued that the Plaintiff should be confined to establishing (if he can) the requisite knowledge on/about 16 April 2005 (ie the date of the 1^st Accident).

52.  For reasons explained in Pang Kwok Lam at paragraphs 42-43, I reject such argument.  The first point that must be made is that limitation is a defence which must be pleaded specifically, and the court will not of its own motion take the point that the claim is out of time (see McGee, Limitation Periods 6^th ed para.21.001 at p.455).  Further, it is a trite principle of pleading that a plaintiff should not anticipate any defence by pleading facts which are not yet material. In the circumstances, the Plaintiff need not plead any “constructive knowledge” in the Indorsement or Statement of Claim.  The proper approach is explained in Hong Kong Civil Procedure 2011 Vol.1 para.18/8/17 at p.378 as follows:

“…… In the ordinary run of actions for personal injuries, any question concerning the operation of the [Ordinance] will very likely be dealt with and disposed of on affidavit evidence on the hearing of an appropriate summons at an early interlocutory stage of the action. This will apply as much to the question of “the date of knowledge” if it is alleged to be later than the date of the accrual of the cause of action …… as to the question of the power of the court to override the defence of limitation under s.30 …… If however, these questions are not disposed of in this summary manner, but are left to be dealt with either as a preliminary issue on the pleadings, etc., or as issues arising in the action, careful regard will have to be had to the matter of pleading relating to these two questions.” (see also McGee, Limitation Periods 6^th ed para.20.012 at p.462)

53.  Mr Szeto also confirmed at the hearing before me that in respect of the application to strike out the Impugned Pleadings pursuant to Order 18 rule 19 of the RHC, the Defendant will not rely on the grounds specified in D’s Summons that (a) the Impugned Pleadings are scandalous, frivolous or vexatious and/or (b) they may prejudice, embarrass or delay the fair trial of the action.

54.  At first, Mr Szeto maintained that the Impugned Pleadings ought to be struck out for being an abuse of the process of the court on the basis that the 1^st Accident Claim was time-barred, but in the end he, quite rightly in my view, abandoned this ground.  “[It] is not as a general proposition an abuse to bring an action on a time-barred claim, since there is always the possibility that the defendant will choose not to plead the statute” (see McGee, Limitation Periods 6^th ed para.21.006 at p.457).

VI. PRIMARY LIMITATION PERIOD

55.  The primary limitation period under section 27(4)(a) is three years from the date on which the cause of action accrued.  There is no doubt that the 1^st Accident Claim accrued on the date of the 1^st Accident, ie 16 April 2005.  Hence, the primary limitation period expired on 15 April 2008.

VII. SECONDARY LIMITATION PERIOD

56.  At the hearing before me, Mr Clough only half-heartedly argued that the 1^st Accident Claim was made within the secondary limitation period, preferring to focus his attention on P’s Summons.  But since the Plaintiff has not abandoned such argument, I shall deal with the same.

57.  The secondary limitation period under section 27(4)(b) allows a period of three years from the date of the plaintiff’s knowledge (if later than the date of accrual of the cause of action). Section 27(6) provides that the limitation period does not begin to run until a plaintiff has knowledge inter alia (a) that his injury was significant, (b) that it was attributable to an act/omission alleged to constitute negligence and/or (c) of the identity of the defendant.

58.  The courts take a pragmatic approach to the requirement of “knowledge”. Knowledge means to hold a reasonably firm belief or to know with sufficient confidence to warrant the taking of preliminary steps for making a claim, such as submitting a claim to the proposed defendant, taking legal and other advice, and collecting evidence (see Cheung Yin Heung at pp.86-88).  But the plaintiff need not be certain, and he may even have the requisite knowledge before he has absolute certainty in relation to the facts. “[It] is the knowledge of possibilities that matters; a claimant needs only enough knowledge for it to be reasonable to expect him to set about investigation.  He can have knowledge even though there is no helpful evidence yet available to him” (see Ministry of Defence v AB & ors [2010] EWCA Civ 1317 (22 November 2010) at para.85).  However, suspicion, particularly if it is vague and unsupported, will not be enough.

59.  Section 27(6) specifically provides that “knowledge of any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant” in determining whether a person had the requisite knowledge.  Hence, a plaintiff’s ignorance in law that he has a cause of action against the defendant is not to prevent the limitation period from starting if he knows the other facts that give rise to liability as referred to in section 27(6) and/or has imputed knowledge of them under section 27(8) (see Thompson v Brown & anor [1981] 1 WLR 744, 749).  Once the plaintiff knows the relevant facts, it does not matter that he does not understand their legal significance (see McGee, Limitation Periods 6^th ed para.8.030 at pp.173-174).

60.  Lord Hoffmann said in Broadley v Guy Clapham & ors [1994] 4 All ER 439, 448 that the court “…… should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based”.  He also emphasised that it was not necessary for the plaintiff to know that the matters he was complaining about amounted to negligence or breach of duty (see also Haward & ors v Fawcetts (a firm) & anor [2006] 1 WLR 682).

(a) Actual knowledge

61.  Sections 27(4)(b) and 27(6) refer to actual knowledge on the part of a plaintiff of the specified matters as to the damage and other relevant facts to make it reasonable for him to investigate whether or not there is a claim against a particular potential defendant (see paragraph 57 above).  The test for actual knowledge is subjective, and the burden is on the plaintiff to show the date of actual knowledge was within three years preceding the issue of the writ of summons, but if the defendant wants to rely on a date prior to such period the burden is on him to prove that the plaintiff had or ought to have had knowledge by that date (see Cheung Yin Heung at p.83).

(b) Constructive knowledge

62.  Section 27(8) brings in the concept of “constructive” or “imputed” knowledge by providing that a plaintiff’s knowledge includes knowledge that he might reasonably have been expected to acquire (a) from facts observable or ascertainable by him or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek, but he shall not be fixed with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

63.  In respect of an injury on duty with allegations of default on the part of the employer, even though the employee plaintiff may not have sufficient actual  knowledge, he may know sufficient to make it reasonable for him (by himself or with advice) to acquire further knowledge of the link between his injury and his working conditions.  The burden is on the defendant to show constructive knowledge on the part of the plaintiff by a date earlier than the three-year period prior to the issue of the writ of summons (ie on or before 9 July 2007 for the 1^st Accident Claim in the present action), and the relevant test is an objective one that requires the court to consider the objective situation in which the plaintiff finds himself in, including the effects of his injury but excluding the personal characteristics individual to him (see Cheung Yin Heung at pp.84-86 and London Strategic Health Authority v Whiston [2010] 3 All ER 452, 468).

64.  The effect of section 27(8) is that the plaintiff cannot simply close his mind and wilfully or even unintentionally ignore the commonsense reality of his position.  He must act reasonably in using information he had or could ascertain to establish knowledge of the significance of his injury, the attribution to the act or omission by the defendant, and the identity of the defendant.  The plaintiff is required to be both mentally active in comprehending the facts of his accident and injury, and also physically active in obtaining expert and other advice and opinion (see Nelson-Jones, Burton and Roy, Personal Injury Limitation Law 2^nd ed p.59).

65.  Although Mr Szeto argues that the Plaintiff already had sufficient constructive knowledge on or before 9 July 2007, he does not suggest that the Plaintiff was expected to acquire such knowledge from facts ascertainable by him through the services of a solicitor or other expert.  I am therefore not concerned with section 27(8)(b) since it is for the defendant to establish that a solicitor or other expert whom the plaintiff might consult would have the necessary knowledge, and that it was reasonable to expect such plaintiff to consult such solicitor or expert (see Nash & ors v Eli Lilly & Co & ors [1993] 4 All ER 383, 399-400).

(c) Significance

66.  Section 27(7) provides that for the purpose of section 27 an injury is significant if the plaintiff would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.  This requirement is directed solely to the quantum of the injury and not to the plaintiff’s evaluation of its cause, nature or usualness (see Dobbie v Medway Health Authority [1994] 4 All ER 450, 457), and has to be approached in a common sense way based upon the evidence in a particular case.

67.  The test is an entirely impersonal standard, and “[the] correct approach was to ascertain what the claimant knew about the injury he had suffered, add any knowledge about the injury which was to be imputed to him under [the English equivalent of section 27(7)], and then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify instituting proceedings ……” (see Butterworths Personal Injury Litigation Service Vol.1 para.VI[522] and A v Hoare [2008] 2 All ER 1, 16).  If a plaintiff reasonably regarded the condition from which he knew he was suffering as “not worth bothering about”, he will not be held to have knowledge of a significant injury (see Dobbie at p.457).

(d) Attributability

68.  Knowledge of attributability is not satisfied merely by knowledge of the acts or omissions alleged to constitute negligence or breach of duty, but rather by knowledge that the damage was “attributable” in whole or in part to those acts or omissions.  So time does not begin to run against a plaintiff until he knows there is a real possibility (but not necessarily a real probability) his damage was caused by the act or omission in question (see London Strategic Health Authority at pp.461-462 and 469).  But even though knowledge of attributability must be causatively relevant to the act or omission complained of, it need only be in relatively broad or general terms.

69.  For knowledge that the injury was “attributable” to the alleged negligence or breach of duty, the courts are concerned with factual and not legal causation.  The plaintiff has to know the relevant facts that will support the allegations when made, but need not be aware of the legal construct (see Butterworths Personal Injury Litigation Service Vol.1 paras.VI[523]-[530]).  Further, he need not be certain of causation for the requisite knowledge only means “capable of being attributed”.  So as soon as a plaintiff knows his accident and/or injury are capable of being attributed to an act or omission of the defendant or, to put it in any way, he knows the essence of the case against the defendant rather than the specific particulars of negligence or breach of duty which can be formulated later, knowledge is acquired (see Butterworths Personal Injury Litigation Service Vol.1 para.VI[531] and Nelson-Jones, Burton and Roy, Personal Injury Limitation Law 2^nd ed p.51).

70.  In Spargo v North Essex District Health Authority [1997] 8 Med LR 125, 129-130, Brooke LJ (with whom Waller and Nourse LJJ agreed) derived the following principles from the authorities:

“ (1) The knowledge required to satisfy [the English equivalent of section 27(6)(b)] is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;

  (2)     “Attributable” in this context means “capable of being attributed to”, in the sense of being a real possibility;

  (3)     A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

  (4)     On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”

(see also Wong Kim Ying v Hospital Authority HCPI265/2004, Suffiad J (unreported, 29 June 2006) at paras.23-26)

(e) Identity of the defendant

71.  In most cases, the identity of the defendant is not problematic. Where an employee was injured at his work place, he would ordinarily have pre-existing knowledge of the identity of his employer.

(f) Discussion

72.  In my view, there can be no doubt that the Plaintiff had actual knowledge that he suffered personal injury as soon as or very soon after the happening of the 1^st Accident.  Given his medical history outlined in Part IV above, I find that well before 9 July 2007 he already had actual knowledge that the injuries he suffered as a result of the 1^st Accident were significant. His injuries cannot be said to be insidious, and there was no long latency period.  He sought medical treatment two days after the 1^st Accident. Indeed, he admitted that he suffered persistent right shoulder pain for which he received extended physiotherapy treatment in 2005 and 2006.  He also had arthroscopy of right shoulder and arthroscopic acrominoplasty in 2005, was referred for work assessment in 2006, and had MRI right shoulder done in 2006.  In my view, the Plaintiff’s injuries are sufficiently serious in the eyes of a reasonable man to justify the bringing of a claim.  The fact that his medical condition became persistent or possibly even worsened over time will not prevent the time-bar from becoming effective.

73.  The Plaintiff claims he was injured as a result of the 1^st Accident at his work place (ie the Recreation Ground), so ordinarily he would have had pre-existing knowledge of the identity of the LCSD as his employer.  Time would start to run against him when he knew the injuries on which the 1^st Accident Claim was premised were capable of being attributed to something done or not done by the LCSD, and such requirement would be satisfied at a time when he had “broad knowledge” that his injuries were capable of being attributed to his working conditions even though he might have no idea at that stage the LCSD might have been at fault.

74.  Mr Szeto in his written submissions argues that the Plaintiff’s report of the occurrence of the 1^st Accident to the LCSD on 18 April 2005 shows that he was aware who was at fault in respect of the 1^st Accident, therefore he had sufficient knowledge that his injuries were “capable of being attributed to” the 1^st Accident.  I am not persuaded that the Plaintiff’s report of the 1^st Accident to the LCSD of itself is sufficient to satisfy the requirement of knowledge since it was made for the purpose of taking sick leave following the Plaintiff’s injury on duty rather than for putting forward a complaint of wrongdoing or omission on the part of the LCSD.

75.  But the crux of the Plaintiff’s contentions, ie he was not told by anyone (including anyone from the LD and/or the LCSD) that he could claim common law damages over and above his sick leave pay and/or he misunderstood that employees’ compensation was all he could claim, cannot help him.  He knew and/or must have known about his working conditions, the extent of any or any lack of supervision, guidance and danger warning he received in respect of the 1^st Task, the availability or otherwise of co-workers for the 1^st Task, the condition of equipment provided by the LCSD for the 1^st Task, the system of work organised by the LCSD for the 1^st Task, and/or the circumstances as to how the 1^st Accident happened.  In my view, given the Plaintiff’s situation, he would have been fixed with knowledge of the above facts which were observable or ascertainable by him and which would have been reasonable for him to acquire long before 9 July 2007.  In my view, the Plaintiff already had actual and/or constructive knowledge of the facts upon which the 1^st Accident Claim was based, and he would have known sufficient facts to establish a causal link between the LCSD’s wrongdoing/omission and the injuries he suffered as a result of the 1^st Accident at the time of or soon after such accident.

76.  In my view, the 1^st Accident Claim is similar to the claim by the plaintiff in Sunwar Bhimraj Sunwar v Le Cheong Engineering Company & anor HCPI 1492/2000, Suffiad J (unreported, 20 December 2001).  In that case, the plaintiff fractured the distal radius of his left hand in an accident whilst working at a construction site in the course of his employment with the 1^st defendant.  He received immediate medical treatment and was granted sick leave for three months before returning to work with the 1^st defendant.  The plaintiff did not object to the results of the MAB assessment, and he received employees’ compensation certified by the LD pursuant to such assessment.  The plaintiff claimed he believed employees’ compensation was all he could claim for, and he was not told by anyone he could claim damages above such employees’ compensation.  Shortly after the expiry of the time-bar, the plaintiff attended an employment agency to look for work, and upon revealing that he had the relevant accident, he was told he could claim for common law damages over and above the employees’ compensation he had received.  He then approached solicitors, applied for legal aid, and issued the writ of summons about 3 years and 2½ months after the accident.

77.  At paras.30-31 of the judgment, the learned judge said as follows:

“ 30. …… it is quite clear that the lack of knowledge relied upon by the plaintiff was that he did not know he had a cause of action against the defendant in respect of his common law claim as he was under the mistaken belief that having been paid the employees’ compensation, that was all the compensation be was entitled to. This is no more than his ignorance in law that he had a cause of action against the defendant and as such it does not prevent the limitation period from starting from the time the cause of action arose, namely, when the plaintiff had his accident …… It is not a case where the plaintiff lacked knowledge of some facts upon which his claim is based and which prevented him from realising he had a claim against the defendants.

  31.     Accordingly, the time for the limitation period to run in the present case can only be from the date of the accident, at which time the plaintiff was fully aware of all the facts which formed the basis of his claim.”

In my view, the above observations are applicable mutatis mutandis to the circumstances of the 1^st Accident Claim.

78.  In the circumstances, I am firmly of the opinion that section 27 does not avail the Plaintiff, and he can only pursue the 1^st Accident Claim if the limitation period is disapplied under section 30.

VIII.  SECTION 30

79.  Both Mr Clough and Mr Szeto agree that the exercise of the discretion to disapply the limitation period is unfettered.  The court performs a balancing exercise by looking at (a) the balance of prejudice to each party, (b) the six specific but non-exhaustive factors contained in section 30(3), and (c) all the circumstances of the case to see whether it would be “equitable” to disapply the limitation period.  The onus is on the plaintiff to show that in the particular circumstances of the case it is equitable to allow his claim to proceed having regard to the prejudice he is likely to suffer.  Ultimately, the question is whether, given the delay, the judge can fairly try the 1^st Accident Claim, and all depends on the particular circumstances of the 1^st Accident Claim in the present action.

80.  But before I turn to the particular circumstances of the present action, it will be useful to deal with several preliminary matters.

(a)  Burden of proof

81.  Mr Szeto places emphasis on the observations by Auld J in KR & ors v Bryn Alyn Community (Holdings) Ltd (in liquidation) & anor [2003] QB 1441, 1470 (cited by Poon J in Leung Tai Sang v Hospital Authority HCPI 481/2004 (unreported, 30 June 2005) at para.26) that the burden of showing it will be equitable to disapply the limitation period that lies on the claimant is a heavy one, and that it is an exceptional indulgence to a claimant to be granted only where the equity between the parties demand it.

82.  But as explained in Mok Lai Fong at pp.81-82, the English Court of Appeal in B & ors v Nugent Care Society; R v Wirral Metropolitan Borough Council [2010] 1 WLR 516 considered the effect of the decision in A v Hoare on the approach to the exercise of the discretion under the English equivalent of section 30, again emphasising that the discretion is wide and unfettered.  I am persuaded the suggestion in Bryn Alyn Community (Holdings) Ltd that the plaintiff carries a heavy burden is no longer good law (see Ministry of Defence v AB & ors [2010] EWCA Civ 1317 (22 November 2010) at para.96).  The court has an unfettered discretion under section 30 to do what is fair (see Horton v Sadler [2007] 1 AC 307, 324).

(b) Forensic prejudice

83.  Mr Szeto in his written submissions has conceded that the Defendant will not suffer any forensic prejudice even if the time-bar is disapplied.  In view of such concession, it is useful to turn to the court’s approach in balancing prejudice.  This has been discussed in Cheung Yin Heung at pp.95-96, Pang Kwok Lam at paras.104-116 and Mok Lai Fong at pp.82-83.

84.  The primary purpose of the limitation period is to protect the defendant against the injustice of having to face a stale claim (see Nash at p.402).  Lord Hoffman in Horton (at p.328) said the practice of the courts had been to regularly exercise the discretion in favour of the plaintiff in all cases in which the defendant could not show he had been prejudiced by the delay, and he further observed that such practice reflected many years of settled jurisprudence.

85.  Since the prejudice resulting from a loss of the limitation defence will almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision, where the defendant has early notification about the claim and in the absence of forensic prejudice on his part, the statutory limitation defence is a windfall of which he can properly be deprived (see Hartley v Birmingham City District Council [1992] 2 All ER 213, 224, Ng Ngan Chiu v Paramount Printing Co Ltd & anor [1998] 2 HKLRD 557, 563 and Aktas v Adepta (a registered charity) [2011] 2 All ER 536, 565).

86.  In Bryn Alyn Community (Holdings) Ltd, the English Court of Appeal held that the overall question is one of equity, ie whether it would be equitable to disapply the limitation period having regard to the balance of prejudice.  In conducting such balancing exercise, the court has to bear in mind that what is of paramount importance is the effect of the delay on the defendant’s ability to defend the case.

87.  In Butterworths Personal Injury Litigation Service Vol.1 para.VI[748], it is said that “the effect of the removal of the limitation defence if the application is granted is to be disregarded in considering the prejudice to the defendant ……  It is the effect of the delay on the defendant’s ability to fairly meet the claim that is relevant to prejudice.  The mere fact that he will have to defend the claim is the effect of the operation of the section, not a form of prejudice.  On the claimant’s side, however, the prejudice caused by the operation of [the English equivalent of section 27] can be taken into account – as it logically must be or there would be no prejudice to the claimant to weigh in the balance” (see Cain v Francis; McKay v Hamlani & anor [2009] 2 All ER 579, 599 and 601).

88.  In Cain where the defendant did not rely on any forensic prejudice at all so that loss of the limitation defence was the only prejudice he would suffer, the court held that such case should be contrasted with the case where forensic prejudice was suffered by a defendant who had not for many years been notified of a claim in any detail to enable him to investigate it.  In the former case, fairness required the action to be allowed to continue.

89.  In London Strategic Health Authority at p.474, Dyson LJ stated that where a fair trial was still possible, it “strongly suggests that it would be ‘equitable’ to allow the action to proceed.  But it is not decisive. It is necessary to have regard to all the circumstances of the case including [the six specific factors]”.

(c) Six specific factors

90.  For the purpose of convenience, I discuss the six factors in section 30(3) in turn, but I accept they cannot be analysed in isolation from one another.

91.  Length of delay and reasons by the plaintiff  In Cain, Smith LJ at p.599 said that in the exercise of discretion, the reason for the delay was important.  The delay could be for so excusable a reason that looking at the matter in the round fairness and justice required the action to proceed, or there could be no good reason for the delay or for its length that caused procedural disadvantage and unfairness to the defendant.  It will always be relevant to consider whether the defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence.  In Ng Ngan Chiu at p.563, it was said that the primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, ie a claim which he never expected to have to deal with (see also Donovan v Gwentoys Ltd [1990] 1 All ER 1018, 1024).

92.  Under section 30(3)(a), the test is a subjective one, and the delay refers to delay since the expiry of the limitation period.  But pre-expiry delay can be taken into account in balancing the prejudice to the parties.

93.  Here, the post-expiry delay is about 2 years 3 months, which is not a short period of delay.  Mr Clough refers to Tam Kwok Man v The Kowloon Motor Bus Company (1933) Limited HCPI 755/2001, DHCJ Woolley (unreported, 25 July 2002) where the action was also commenced five years after the accident and two years after expiry of the limitation period.  Although the plaintiff in that case knew he could claim damages over and above the employees’ compensation he received, the court took into account that he was not a highly educated man, that he was more concerned with retaining his employment than with seeking damages, and that he was told by colleagues it might jeopardise his employment if he started an action against his employer.  Bearing in mind that his work rather than a claim for damages (in respect of which he most likely had no advice as to the strength of his claim nor likely damages he might recover) was in the forefront of the plaintiff’s mind, it was found that “the delay here, and the reasons for it, are not inexplicable in the plaintiff’s circumstances”.  In my view, Tam Kwok Man is useful in showing that the length of and reasons for the delay must be looked at together rather than in isolation, but each case is fact-sensitive.  There is no tariff to indicate what sort of delay is too long (see Bryn Alyn Community (Holdings) Ltd at p.1473 and Anthony McHugh v Deidre Delores Gray [2006] EWHC 1968 (QB) (27 July 2006) at para.22).

94.  In my view, the Plaintiff here has given an explanation for the delay which I find acceptable.  He says that no one informed him, and he was unaware that he could claim for common law damages over and above the employees’ compensation he received in respect of the 1^st Accident.  This is borne out by the explanation in his affirmations.

95.  The Plaintiff says that in his communications with the LD, he was not made aware of any right of bringing a claim for common law damages in respect of the 1^st Accident.  The LD Letter merely refers to time limits for bringing unresolved claims for employees’ compensation and for third year sick leave pay to the District Court and makes no mention of any separate common law claim (see paragraph 34 above).  The LD Notice again refers to such claims for employees’ compensation and third year sick leave pay, and hence any indication on the face of such notice by the Plaintiff of any preference to resolve these matters through the LD instead of the court and of any acknowledgment that he might lose his right to claim if the LCSD refused to pay the relevant sums and the court refused to extend time for issuing application out of time must relate to time limits in respect of potential claim for employees’ compensation (see paragraph 36 above).  There is no mention on the face of the LD Notice of any potential common law claim and/or the time limit for bringing any such common law claim.  According to the Plaintiff, his lack of knowledge of any right to bring a common law claim for the 1^st Accident is reinforced by Ms Lam’s explanation on 24 October 2006 that his signature on the LD Notice was merely a confirmation of his acknowledgment of the 24 months’ limitation rule in respect of any employees’ compensation claim, and he therefore mistakenly thought he would only have sick leave pay for another 6 months but had to apply for extension of sick leave pay after 16 April 2007 (see paragraph 35 above).

96.  In respect of the Plaintiff’s communications with the LCSD, he was again not made aware of the right to bring any common law claim in respect of the 1^st Accident.  By the LCSD Letter, the Plaintiff was informed that sick leave pay would cease after 17 April 2007, and that he would have to apply to the Director or the court for any further sick leave pay (see paragraph 37 above).  Again, there is no mention in such letter of any right to bring any common law claim in respect of the 1^st Accident.  The Plaintiff chose to apply in writing to the Director for third year sick leave pay on 16 April 2007 upon advice received from Ms Lam that he could either seek assistance from the LAD, apply to the court himself and write to the Director for discretionary extension of third year sick leave pay (see paragraph 38 above) because he thought he had complied with a permissible option to seek extension of third year sick leave pay within the 24 months’ limitation period (see paragraph 39 above).  Again, Ms Lam in her advice and the Plaintiff in the P Letter did not mention any right to bring a common law claim in respect of the 1^st Accident.

97.  Mr Szeto tries to cast doubt on the Plaintiff’s assertions of mistaken belief and/or lack of knowledge of the right to bring any common law claim in respect of the 1^st Accident.  He refers to the concern expressed by the Plaintiff in his affirmations in seeking sick leave and sick leave pay, and argues that “objectively speaking” the Plaintiff should “at least to some extent” be “aware of some of his legal rights”.  Mr Szeto also submits that the Plaintiff’s “explanation of receiving mistaken advice from leisure talks with various persons does not carry credible weight or relevance.  Nothing was suggested which would prevent the Plaintiff from seeking proper legal advice.  Nothing again was suggested as to why the Plaintiff saw fit to accept those alleged mistaken casual advice unconditionally”.

98.  Underpinning such submissions is the objective approach adopted by Mr Szeto in considering and weighing whether the Plaintiff’s reasons for the delay are good and genuine (see Leung Tai Sang at para.27).  He says that “[the] only reason given by the Plaintiff for the delay was a mistaken belief and/or a lack of knowledge on legal rights.  As ignorance of the law is not a valid reason to prevent limitation from running, it is likewise not a persuasive reason for explaining the delay bearing in mind that the Plaintiff has all other relevant facts”.  On such basis, it is suggested that the Plaintiff’s reasons for delay are not convincing.

99.  However, as explained above, the test is a subjective one, and the delay does not have to be reasonable according to an objective test (see  McGee, Limitation Periods 6^th ed, para.8.042 at pp.179-180 and Anthony McHugh at para.25).  This means that the court should find the reason for the delay, and then find whether it is a good or a bad reason from the claimant’s position, ie whether he is culpable or not (see Butterworths Personal Injury Litigation Service Vol.1 para.VI[749]).

100.  In Halford v Brookes & anor [1991] 3 All ER 559, the plaintiff was not advised that she could bring a civil action for damages.  Nourse LJ at p.569 disagreed with the view of the first instance judge that he was not entitled to take into account the plaintiff’s ignorance of her legal rights at the stage of considering the exercise of discretion under the English equivalent of section 30.  “There is no restriction on the reasons for the delay to which the court must have regard.  And in some cases, of which this is one, the plaintiff’s ignorance of her legal rights may be a very important factor to be placed on her side of the balance ……”

101.  In Coad v Cornwall and Scilly Isles Health Authority [1997] 1 WLR 189, the reason for the delay was that the claimant did not know and did not realise she could bring a claim as she was able to return to work after the accident.  The English Court of Appeal decided that genuine ignorance of legal rights is a reason the court can properly take into account to exculpate the delay which occurred.

102.  In London Strategic Health Authority, it was held that the claimant had constructive knowledge in about 1998 but actual knowledge only in 2005.  The claim was issued in 2006.  The court was of the view that the claimant had good reasons for not showing the curiosity of a reasonable person to find out about his injury and claim earlier.

103.  In Tam Kwok Man, even though the plaintiff knew he could claim damages over and above the employees’ compensation he received, the precise nature and amount of such common law damages might well not have been clear.  The advice he received at the LD was mainly concerned with settling the employees’ compensation claim.  He was interviewed at the LAD in respect of his application for legal aid, but was not necessarily advised as to what he was claiming and how much he might expect.  Although he was in a position to have legal advice from the LAD, it is not certain what advice (if any) was given.  It was held that whatever advice he was told, the Plaintiff was left with a large degree of uncertainty as to what his rights were.  These were some of the matters which the court took into account in assessing all the circumstances

104.  Mr Clough in his written submissions suggests that in the Hong Kong civil service, the departmental secretary (who is the worker’s representative as well as the employer’s representative) is normally the person who helps in situations where a civil servant suffers injury on duty, and the LD also has an important role to play since an injured worker may have no idea as to what proceedings he may be able to bring, and he should be advised of the separate action for common law damages and of the corresponding limitation period.

105.  I am unable to accept such submissions since there is no affirmation evidence on such matters, which are beyond the realm of judicial notice.  Indeed, at the hearing before me, Mr Clough was careful not to put the Plaintiff’s case on the high ground that there is a duty on the LCSD or the LD to advise the Plaintiff of his right in bringing a common law claim in respect of the 1^st Accident and of the relevant limitation period.

106.  Nevertheless, there is no countervailing evidence that undermines the Plaintiff’s claim of being unaware of any need to bring common law proceedings within the three-year period.  As Mr Szeto rightly accepted, any mention of bringing legal proceedings in the Plaintiff’s communications with the LD and the LCSD was made in the context of employees’ compensation matters.  This is borne out by the Plaintiff’s affirmations as well as the LD and LCSD Letters, the LD Notice and the P Letter.

107.  In my view, the delay until late 2010 in issuing proceedings for the 1^st Accident Claim is explicable.

108.  I do not see any basis for complaint in respect of the period after the Plaintiff came to know of a potential common law claim against his employer for negligence and breach of duty as a result of his chat with Mr Wong in/about June 2010.  The Plaintiff quickly approached solicitors and applied for legal aid, and his solicitors issued the Writ of Summons in the present action with reasonable promptness.  The period of the Plaintiff’s delay must be considered in the context of his being unaware of any limitation period for issuing a claim for common law damages against the Defendant.

109.  Effect of any delay on the cogency of the evidence  This concerns the ability of the Defendant to defend the 1^st Accident Claim.  The delay under section 30(3)(b) is again delay since the expiry of the limitation period, but the effect of pre-expiry delay on the cogency of the evidence can also be taken into account as one of the circumstances of the case in balancing the prejudice.  Here, the Defendant admits that the Plaintiff’s delay will not cause the evidence to be adduced by the Defendant to be less cogent.

110.  In considering any pre-expiry delay, I bear in mind that the Defendant had early notification of the 1^st Accident.  Indeed, the LCSD was able to submit the Notice of Accident (Form 2) to the LD on 19 May 2005 (see paragraph 33 above).  It cannot be said that the Defendant had no opportunity to investigate the claim or to collect the evidence (see Cain at p.599).

111.  In EB v John Haughton [2011] EWHC 279 (QB) (17 February 2011), Slade J said at para.92 as follows: “Whilst the authorities do not in my view go quite as far as to state that lack of prejudice to the Defendant trumps all other considerations, nonetheless this factor is given considerable weight. Smith LJ in Cain held that although a judge’s discretion in applying [the English equivalent of section 30] is unfettered, the principles formulated by the higher courts should be applied.  I have regard to the fact that considerable weight is attached by the Court of Appeal in Nugent and Cain to absence of prejudice”.  In that case, although two years of the overall period of delay was inexplicable, having regard to the lack of prejudice amongst other considerations, the limitation period was disapplied to enable the claim to proceed.

112.  Conduct of the defendant after the cause of action arose  I am not persuaded that there is any sustainable argument that the Defendant provided any misinformation or failed to respond to request for information.  I repeat my observations in paragraphs 104-105 above.

113.  Duration of any disability of the plaintiff arising after accrual of the cause of action The Plaintiff has not made any allegation of disability within the meaning of Order 80 of the RHC.

114.  Conduct of the plaintiff  This refers to whether the Plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages.  This factor looks at whether the plaintiff has taken steps to bring a claim or make a complaint once he was aware that he had a claim and that it was substantial, ie from the date on which he in fact appreciated the position as distinct from the date on which he had constructive knowledge (see McGee, Limitation Periods 6^th ed, para.8.046 at pp.182-183).  The test is an objective one where the reasonableness of the claimant’s actions is considered.

115.  Here, there is no evidence of any previous conscious or deliberate decision on the part of the Plaintiff not to proceed with the 1^st Accident Claim.  In my view, the Plaintiff was preoccupied with his rehabilitation, his return to work, his sick leave pay and his employees’ compensation matters.  Although I accept he had actual and/or constructive knowledge of the relevant underlying facts, I am not persuaded there is a high degree of culpability on his part for as soon as he knew the true legal position he acted.

116.  Mr Szeto submits that given the Plaintiff’s concern with seeking third year sick leave pay, it is quite extraordinary that he had not even considered seeking proper legal advice and/or suing the Defendant for common law damages within the primary or secondary limitation period.  He argued that a “reasonable bystander” would have done so, and such inactivity reflects adversely on the Plaintiff.

117.  In Sunwar Bhimraj Sunwar at para.32, Suffiad J stated that “although ignorance of the law giving to the plaintiff a cause of action is fatal to [whether the plaintiff has satisfied the limitation period under section 27], it is not per se fatal to [an application to disapply the time-bar under section 30] since one of the factors that should be taken into consideration as provided by the wording of section 30(3)(e) is whether the plaintiff acted promptly and reasonably after he came to know he has a cause of action”.  The Plaintiff in the present action (like the plaintiff in Sunwar Bhimraj Sunwar) was unaware that he could bring a claim for common law damages until Mr Wong informed him of such right in/about June 2010.  After he came to know he had a cause of action for common law damages, the evidence shows he acted diligently by approaching solicitors almost at once to seek advice, and such solicitors issued the Writ of Summons reasonably promptly in early July 2010.  So even though the Plaintiff cannot excuse his actions, the court sympathises with him.

118.  Diligence of the Plaintiff in obtaining medical, legal or other expert advice  This factor takes into account whether the plaintiff has taken the steps he should have and what effect those steps have had on any delay.  Here, no steps were taken by the Plaintiff to obtain medical or legal advice before he approached his present solicitors because it was not until June 2010 that he realised he had in law a cause of action for common law damages in respect of the 1^st Accident Claim.

(d) Equity, prejudice and all the circumstances

119.  Mr Szeto submits that the Plaintiff had a very weak claim on liability.  In support of such argument, he raises the matters set out in paragraphs 136-137 below.

120.  In respect of the issue of quantum, Mr Szeto argues that on the presently available evidence, it is difficult to assess the degree of injury that the Plaintiff is suffering.  He suggests that the Medical Reports are “not as helpful as what should be”, hence the court should be slow to exercise its discretion under section 30 “in the absence of cogent medical evidence showing a serious effect on the claimant’s health or enjoyment of life and employability whence the likely amount of an award is also an important factor to be considered – see Hong Kong Civil Procedure 2011 Vol. 2 at F1/30/13”.

121.  Mr Szeto further submits that it is not apparent from the available medical evidence that 1^st Accident Claim as pleaded amounts to a substantial claim since (a) no credit has been given in the Statement of Damages for sick leave pay already received by the Plaintiff, (b) the claim for pain, suffering and loss of amenities in the Statement of Damages (which is overstated) does not distinguish between the injuries and disabilities as a result of the 1^st and 2^nd Accidents, and (c) the claims for loss earning capacity and loss of promotion are not supported by evidence.  He argues that due to the uncertainties as to causation of loss and quantification of damages, even if judgment is obtained, any award in favour of the Plaintiff will be relatively modest.

122.  I have considered the court’s approach in considering the strength of the plaintiff’s case as a factor to be taken into account in the exercise of discretion under section 30 in Cheung Yin Heung at pp.100-101, Pun Kwok Lam at paras.135-139 and Mok Lai Fong at p.91. Normally, it is not necessary to consider the relative strengths of the parties’ respective case (see Yeung Mo Shing v Chung Fai Engineering Co Ltd HCPI301/2002, Recorder E Chan SC (unreported, 26 February 2003) at para.14) because at this preliminary stage of the proceedings, the court can only form a provisional view of the merits (see Li Chi Hung v Secretary for Justice [2006] 1 HKLRD 60, 73).

123.  In considering the strength of the Plaintiff’s case, it is inappropriate to merely consider the Plaintiff’s pleadings and the Medical Reports.  In respect of the Plaintiff’s pleadings, Master Ho in Yip Wing Hong v Maeda Corporation HCPI 518/2000 (unreported, 11 May 2001) at para.37 reminded that “[whether] the plaintiff could prove his claim would depend on the evidence at trial and not just on the pleadings”, which could be amended by appropriate application if necessary.  Further, in Dale v British Coal Corp [1992] PIQR P373, 380, Stuart-Smith LJ said that the court cannot and should not attempt to determine the merits on affidavit evidence. All that can be done and should be done is for the court to take an overall view of the prospects of success; a judge/master who is experienced in this type of litigation should have no difficulty in doing so (see Forbes v Wandsworth health Authority [1996] 4 All ER 881, 894-895).

124.  Indeed, Smith LJ in Ministry of Defence at para.126 said the court had to assess the broad merits on the materials put before it but making some allowance for what it can foresee might become available.  She also said at para.121 as follows:

“That said, we have to make our broad merits assessment as best we can on the basis of what we know now.  It is inevitable at any limitation hearing and appeal that the material on which the court has to make its broad merits assessment will be incomplete.  All that we have learned from the dispute about disclosure and the correspondence is that disclosure may well be incomplete.  We recognise that it is possible that further disclosure might contain a ‘golden nugget’ of information which could transform the claimants’ case on breach of duty.  But that will often be the case where limitation is tried as a preliminary issue.  For that reason, when assessing the broad merits, the court will always take into account the possibility that the case might improve on further investigation.  In the end, we consider that we should not form a strongly adverse view of the claimants’ prospects of success in showing sufficient exposure and sufficient lack of care by the [defendant] as would enable the claimants to establish breach of duty.  We cannot say that their prospects are good but we will not say that they are poor.”

125.  In taking a broad view of the prospects of success, I am not persuaded that the Plaintiff’s claim as pleaded is weak and/or insubstantial.  Mr Szeto complains that the pleaded case is defective, but it is inappropriate for the Plaintiff to plead evidence.  The Notice of Accident (Form 2) submitted to the LD on 19 May 2005 (see paragraph 33 above), the Defendant’s payment of two years of sick leave pay with demur (see paragraph 37 above) and the UCH medical notes/records that make reference to the 1^st Accident (see paragraphs 11-12 above) all lend support to the Plaintiff’s case that the 1^st Accident did occur.  As for the blameworthiness of the Defendant, the Plaintiff in his pleadings and affirmations has described how the 1^st Accident occurred and his working conditions at the material time.  Presumably he will give evidence to shed light on the circumstances and events culminating in the 1^st Accident, and on the place and system of work, the extent of direction, control and/or supervision he received or failed to receive, and the absence of co-workers for the 1^st Task.  As Mr Szeto has admitted, these issues are fact-sensitive (see paragraph 137 below), and in my view they cannot be resolved either on the pleadings or on the affirmation evidence before me. I refer to my observations in paragraph 139 below.  In the light of the above matters, the Defendant has difficulty in persuading the court that the Plaintiff’s allegations are untrue or exaggerated.

126.  As regards the Medical Reports filed pursuant to Order 18 rule 12(1A)(a) of the RHC, such medical reports are not intended to be the whole of the medical evidence that may be adduced if the claim is to proceed.  Indeed, the Plaintiff has exhibited to his 1^st affirmation UCH’s medical reports/notes/records that give a detailed account of his complaints and the diagnosis and treatment in respect of his injuries as a result of inter alia the 1^st Accident.  Such evidence cannot be ignored, and in the end Mr Szeto accepts it cannot be said there is no cogent medical evidence of the Plaintiff’s injuries.

127.  I am not persuaded that the Plaintiff’s allegations in respect of the 1^st Accident Claim bear the hallmarks of exaggeration or that the Plaintiff’s claim is what DHCJ Carlson has described as a fairly obvious loser (see Li Chi Hung at p.73).  In my view, whilst the Plaintiff does not have an overwhelming or cast-iron case against the Defendant, he cannot be said to have a weak case. Instead, it is an authentic claim that deserves to be investigated by the court in the course of the litigation.  The strength of the Plaintiff’s case is not a factor that weighs heavily in favour of the Defendant.

128.  I take into consideration the prejudice to the Plaintiff if the limitation period is not disapplied.  In all likelihood, the Plaintiff will have no alternative recourse against any other party.  In my view, on the above analysis, there is an arguable case that the Plaintiff has sustained injuries as a result of the 1^st Accident, and that he will have to live with the residual disabilities which may well have adverse impact on his working ability.  He has received sick leave pay but his claim, according to the Statement of Damages, may be worth more than such sick leave pay.  In speaking of reasonable prospects of success on the issue of quantum, it is enough that if a judgment is obtained there is reasonable prospect of recovering reasonably worthwhile damages from the Defendant.  Such damages need not be considerable or abundant.

129.  Every case is fact-sensitive. In Sunwar Bhimraj Sunwar where the delay was due to the plaintiff’s ignorance of his right to bring a claim for common law damages against the defendants over and above his claim for employees’ compensation, the main factor the tipped the scales in favour of the defendants was the prejudice that they would be subjected to if the plaintiff’s claim was allowed to proceed.  Such factor is absent in the present action, and taking into account all the above considerations, the absence of prejudice weighs heavily in the scales in favour of the Plaintiff for allowing the 1^st Accident Claim to proceed.

130.  The court has an unfettered discretion and has to look at the whole circumstances of the case.  There has been early notification of the 1^st Accident to the Defendant, so the 1^st Accident Claim cannot be regarded as stale. The Defendant admittedly suffers no forensic prejudice, and the delay has arisen for an excusable reason.  A fair trial is still possible, and the limitation defence can fairly be regarded as a windfall of which the Defendant can properly be deprived.  Taking the present case as a whole, in the balancing exercise to do equity, it is fair and just in all the circumstances to disapply the period of limitation in section 27 pursuant to section 30 so that the Defendant is required to meet the Plaintiff’s claim on the merits notwithstanding any delay.

IX.  STRIKING OUT ON THE BASIS OF TIME-BAR?

131.  It can only be in the most blatant cases that a striking out application is appropriate to a limitation defence.  McGee, Limitation Periods 6^th ed para.21.005 at pp.456-457 states as follows:

“…… The test is to be found in the speech of Lord Bridge of Harwich in Lonrho Plc v Fayed [[1992] 1 AC448, 470]. The defendant must show that the claimant’s claim is obviously doomed to fail. It may be said that the only such cases will be those where it appears from the terms of the statement of claim that the action is time-barred, and the claimant has not adduced any argument to show why the apparent barring of the action should not prevent him from bringing it. This view was adopted by the Court of Appeal in Ronex Properties Ltd v John Laing Construction Ltd [[1983] QB 398], where the point was made that a statement of claim which pleads only an action which is time-barred does normally disclose a cause of action, at least in those cases where the expiry of the limitation period serves only to bar the plaintiff’s remedy rather than to extinguish his right.” (my emphasis)

132.  For the reasons discussed above and as a result of the exercise of discretion in favour of the Plaintiff under section 30, I decline to strike out the Impugned Pleadings based on the limitation issue.

X. NO REASONABLE CAUSE OF ACTION?

133.  The Defendant also seeks to strike out the Impugned Pleadings and to dismiss the 1^st Accident Claim pursuant to Order 18 rule 19(1)(a) on the ground that such pleadings disclose no reasonable cause of action. Paragraph 5 of Practice Direction 19.1 provides that for applications to strike out pleadings as disclosing no reasonable cause of action or where no letter has been written by counsel for the applicant to counsel for the respondent signifying his intention to make the application and the broad grounds upon which he will rely, the applicant shall inform the respondent of the said grounds in writing at least five clear working days before the day fixed for the hearing.  It is unclear whether the Defendant has complied with such practice requirement, but Mr Clough has taken no issue on this.

134.  A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings are considered. Order 18 rule 19(2) of the RHC provides that no evidence shall be admissible on an application to strike out pleadings on the ground that they disclose no reasonable cause of action.  The court is therefore obliged to look at the indorsement on the writ or the pleading without extrinsic evidence and decide whether on the assumption of the facts as pleaded are true the indorsement or pleading discloses a cause of action (see Hong Kong Civil Procedure 2011 Vol.1 para.18/19/3 at p.404).  So long as the pleadings disclose some cause of action or raise some question fit to be decided by the court, the mere fact that the case is weak and not likely do succeed is no ground for striking it out (see Hong Kong Civil Procedure 2011 Vol.2 para.18/19/6 at p.406).

135.  The principles governing a striking out application are well established.  Para.18/19/4 of Hong Kong Civil Procedure 2011 Vol.1 at pp.404-405 provides inter alia as follows:

“…... It is only in plain and obvious cases that the court should exercise its summary powers to strike out the indorsement on any writ or any pleading under this rule. There should be no trial upon affidavit. Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. …… Where the legal viability of a cause of action is sensitive to the facts, an order to strike out should not be made. …… The mere fact that the case is weak and not likely to succeed is no ground for striking it out. …… Nor should sparsity as to detail lead to a similar result.

……

It is for the party seeking to strike out an indorsement on a writ or pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. ……”

136.  Mr Szeto in his written submissions argue that the Impugned Pleadings significantly fail to describe the force of the alleged sudden swirl of wind at the time of the 1^st Accident, and since it is not the Plaintiff’s case that (a) on the material day it was windy prior to his cutting the stripe bamboos, (b) the use of the 1^st Saw was inappropriate or unusual, (c) he was unfamiliar with the use of the 1^st Saw, and/or (d) there were previous similar incidents known to the Defendant, there is no effective plea as to how if at all the Defendant could have prevented the 1^st Accident from happening.  Mr Sezto submits there was no failure on the part of the Defendant to provide a safe system when the Plaintiff was faced with a “one-off” task requiring the exercise of common sense, and it is difficult to see what relevant instructions could have been given to him.  He says the Defendant could not have prevented the sudden swirl of wind, and it should not be liable if the place of work became unsafe because of some temporary or exceptional danger that was not known.

137.  Mr Szeto further argues that since the 1^st Task was a simple one that did not involve various work procedure steps or require specific instructions from the employer, it is suitable for the Plaintiff who is an experienced worker.  Mr Szeto submits that “[it] is a question of fact whether or not there is need for a system of work to be prescribed in any given circumstances.  In deciding, regard ought to be had to the nature of the work, that is whether properly it requires careful organisation and supervision, in the interest of the safety of all those person carrying it out; or it can be left by a prudent employer confidently to the care of the particular man on the spot to do it reasonably safe”.  He further argues that an employer is not liable for ordinary risks of service “if there is no negligence”.

138.  In my view, the above arguments have no merit whatsoever.  First, having looked at the Statement of Claim, it is plain that the Plaintiff has stated all the material facts (ie those facts and elements necessary for the purpose of formulating a complete cause of action) necessary for the causes of action in negligence, breach of statutory duty, breach of the common duty of care and breach of the implied terms of the contract of employment.  The rules do not require the Plaintiff to plead evidence, and hence he cannot be criticised for not bolstering the material facts with evidence and/or argument in his pleadings.  Since the pleaded material facts establish complete causes of action, there is no room for suggesting that these causes of action are certain to fail.

139.  Secondly, as recognised by Mr Szeto himself (see paragraphs 136-137 above), his contentions raise issues of fact and they have travelled beyond the pleadings into the Plaintiff’s affirmation evidence. However, Mr Szeto’s inability to rely on affirmation evidence to substantiate his contentions severely undermines his submissions.  In my view, where the question of liability is fact-sensitive, it will have to be determined at trial upon hearing evidence, and consequently the Impugned Pleadings are not amenable to any striking out application.  In the present case, whether the Defendant’s instructions, supervision and system of work for cutting tall plants by a worker without the assistance of any fellow-worker should have taken into account the wind factor is plainly a matter that needs to be considered and assessed against the whole factual matrix, and it is impossible solely on the Plaintiff’s pleadings to brush off the 1^st Accident as an inevitable accident.  At best, Mr Szeto’s contentions amount to causes of defence against the 1^st Accident Claim, which may or may not be established at trial, but they cannot reach the threshold necessary to strike out the Impugned Pleadings.

140.  The Defendant’s application to strike out the Impugned Pleadings for no reasonable cause of action under Order 18 rule 19 of the RHC is therefore dismissed.

XI.  CONCLUSION

141.  I therefore grant an order that:

(a) paragraphs 1-3 of D’s Summons be dismissed;

(b) pursuant to section 30, the time limit under section 27 in respect of the 1^st Accident Claim be disapplied;

(c) there be extension of time until 21 days from today, ie on or before 9 November 2011, for the Defendant to file and serve the Defence, and such Defence shall be accompanied by its statement of truth;

(d) within 21 days thereafter, ie on or before 30 November 2011, the parties do serve their respective List of Documents, and there be inspection of documents within 7 days thereafter, ie on or before 7 December 2011;

(e) Checklist Review be adjourned to 9 January 2012 at 11:30am before the PI Master for further case management;

(f) PI Master shall be notified at once and in any event within 3 days if any of the above dates or directions are not met on time with detailed reasons;

(g) solicitors for the Plaintiff shall send a copy of this order to the legal aid counsel in charge of this case to ensure there is no delay in compliance with these directions due to late assignment of counsel or due to late issuance of an appropriate certificate;

(h) time shall run during court vacation;

(i) liberty to apply.

142.  Even up to the time of the Hearing, the Plaintiff did not make any concession that the three-year limitation period has expired, and I eventually found against him on this issue.  In such circumstances, it is legitimate for the Defendant to raise the limitation issue, and the burden rests on the Plaintiff to persuade the court to disapply the time limit under section 30.  So even though the Plaintiff has eventually succeeded in extending the time limit, he should pay to the Defendant costs of D’s Summons (but excluding the Defendant’s application to strike out the Impugned Pleadings and to dismiss the 1^st Accident Claim under Order 18 rule 19(1)(a) of the RHC) and of P’s Summons up to the filing and service of his 1^st affirmation (including all costs reserved if any), and the Defendant shall pay the Plaintiff costs of D’s Summons (but excluding the Defendant’s application to strike out the Impugned Pleadings and to dismiss the 1^st Accident Claim under Order 18 rule 19(1)(a) of the RHC) and of P’s Summons thereafter (including the costs of the hearing before me insofar as they relate to these matters).

143.  In respect of the Defendant’s application to strike out the Impugned Pleadings and to dismiss the 1^st Accident Claim under Order 18 rule 19(1)(a) of the RHC, there is no reason why costs should not follow event.  I therefore order that the Defendant do pay the Plaintiff costs of such application (including the costs of the hearing before me insofar as they relate to this matter).

144.  There will be certificate for counsel, and legal aid taxation in respect of the Plaintiff’s own costs.  The above order for costs will be an order nisi.

145.  Since the Plaintiff is legally aided, summary assessment of costs is inappropriate in light of Order 62 rule 9C(1)(b) of the RHC unless the Plaintiff’s solicitors waive the right to any further sum of money.  The Plaintiff’s solicitors are directed to write to my clerk with copy to the Defendant’s solicitors within 14 days from today to confirm whether they are willing to waive the right to any further sum of money in respect of the above costs order nisi in favour of the Plaintiff.

146.  If the Plaintiff’s solicitors are unwilling to waive such right, the above costs whether in favour of the Plaintiff and/or the Defendant shall be taxed (in any event) if not agreed.  If the Plaintiff’s solicitors are willing to waive such right, there be summary assessment of the above costs in favour of the Plaintiff and the Defendant, and I hereby grant the following directions:

(a) if no application is made to vary the above costs order nisi within 14 days from today, the parties do within 21 days from today lodge and serve their respective statement of costs pursuant to Practice Direction 14.3 and within 7 days thereafter lodge and serve their respective summary of objections to the other party’s statement of costs of not more than half page in bullet point format;

(b) if application is made to vary the above costs order nisi, such application shall be heard at the same time as the hearing for the summary assessment of costs;

(c) the Plaintiff do within 21 days from today fix a date with the Listing Clerk for the hearing of the summary assessment of costs to be heard before me in chambers (open to the public) on a date not before 42 days from today with half hour reserved.

 

 

Representation: