鄧愛華 v. 有記生猛海鮮

DCEC 1987/2025

[2026] HKDC 1144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1987 OF 2025

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DECISION

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Background

1.  The Applicant (“A”), a fish stall worker, was allegedly injured in the course of work when her left palm had a splinter from cutting a fish on 4 October 2022 (“Accident”). She had bacterial infection subsequently and sustained left hand infective tenosynovitis which required synovectomy of the hand and fingers.[1]

2.  A commenced this action on 15 September 2025 by filing the Application (“EC Application”)[2] and sues her employer as the Respondent (“R”) for employees’ compensation under the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

3.  The EC Application was issued about 11 months out of time after the 2-year time limitation prescribed under s14 ECO had expired on 3 October 2024.

The 4 Summonses

4.  There are 4 summonses (“Summonses”) before this Court:

(1)  R’s summons filed on 2 January 2026 applying to strike out A’s action herein on the ground that it was made out of time (“R’s Strike Out Summons”);[3]

(2)  A’s summons filed on 16 April 2026 (“A’s 1^st Summons”) applying for leave (i) to proceed this action/the EC Application against R out of time under s14(4) ECO; and (ii) to amend the EC Application;[4]

(3)  R’s 2^nd summons filed on 28 May 2026 (“R’s 2^nd Summons”) seeking to add a further ground, ie abuse of process, to strike out the EC Application;[5] and

(4)  A’s summons filed on 11 June 2026 seeking to include an omitted document, namely the original EC Application (to be redacted and replaced in its entirety), in A’s 1^st Summons (“A’s 2^nd Summons”).

Affirmations filed

5.  I have considered the following affirmations filed by the parties in support/opposition of the Summonses:

(1)  Affirmation of Chan Oi Ping (“Chan”) (owner of the fish stall operated by R) filed on behalf of R on 13 January 2026;[6]

(2)  Affirmation of A filed on 16 April 2026;[7] and

(3)  Affirmation of Lam Chi Hang (“Lam”) (assistant of Chan/ manager of the fish stall) filed on behalf of R on 28 May 2026 [74-84].[8]

Issues before this Court

6.  Parties confirmed during the hearing their agreement on the following:

(i)  R’s 2^nd Summons be allowed; costs be in the cause of R’s Strike Out Summons; and

(ii)  A’s 2^nd Summons be allowed with costs to R.

7.  A’s proposed amendments to the EC Application (sought in A’s 1^st Summons) involve (1) amending the name of R (from “有記生猛海鮮” to “CHAN OI PING trading as 有記海鮮”) in accordance with its business registration; and (2) a fresh draft amended EC Application to replace the originally filed handwritten version in Chinese prepared by A when she had no legal representation. R has not raised an objection to A’s proposed amendments to the EC Application in the event that leave is granted by this Court to A to proceed this action out of time.

8.  Upon the agreement, the issues left of the Summonses are:

(i)  Whether A should be allowed to proceed the EC Application out of time under s14(4) ECO – this is a common issue raised in R’s Strike Out Summons and A’s 1^st Summons;

(ii)  Whether A’s claim herein should be struck out on the ground of abuse of process because she had already obtained from R compensation in an amount exceeding the minimum she might have obtained after a full hearing; and

(iii)  Costs.

9.  Mr Thomas Nip of counsel appeared for A.

10.  Mr Cyrus Lau and Ms Kate Cheng of counsel appeared for R.

Legal Principles

11.  S14(1) of the ECO provides that an applicant/injured employee has to make an application for employees’ compensation within 24 months from the occurrence of the accident that caused his injuries.

12.  S14(4) provides that the court may, despite lateness, receive and determine the application if it is satisfied that there was “reasonable excuse” for the applicant’s failure in making the application within the prescribed time.

13.  In considering whether there was “reasonable excuse” for the lateness of commencing EC action, the court has an unfettered discretion, which should be exercised liberally. A’s counsel has referred to the principles established in Tsang Loi Fat v Sun Fook Kong [2011] 4 HKLRD 344 and Wong Man Tak v Shaws & Sons Limited [1957] HKDCLR 85, applied in an earlier decision of this Court in Lau Oi Wing v Tsang Wing Kong (t/a Kim Yuen Recycle Co) [2025] 3 HKLRD 804.

14.  I quote hereunder a passage of Hon Charles J explaining the meaning of “reasonable excuse” in Wong Man Tak (supra) at §§88-89:

“A reasonable excuse, in the ordinary sense of the phrase, means… that the failure was due to such cause or causes that it ought, as a matter of reason, to be excused… a cause for failure to make a claim within the prescribed period was reasonable, and therefore excused the failure, if it were:- a reasonable belief on the part of the applicant that his injury was trivial; or a mistaken diagnosis of his injury; or a belief in the applicant that a claim for compensation was unnecessary, when the belief had been induced by the employer in such circumstances as reasonably warranted it; or the inability of the applicant to transact business because of his injury… The principle to be deduced from the foregoing is, I think, that an applicant has a reasonable excuse for not making an application to the court for compensation within the prescribed time if his failure were due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part.”

[emphasis added]

15.  The factors that the court may take into account in considering whether there is reasonable excuse are set out in Tsang Loi Fat (supra)at §§10-12:

“10. When the Court rules on whether there is a reasonable excuse in relation to a failure by an Applicant to make his application for employees’ compensation within the prescribed period, apart from considering the reason for the delay, it also has to consider the length of the delay, whether there is sufficient ground to support an award of employees’ compensation to the Applicant; and whether prejudice would be caused to the interests of the Respondent if an extension of time is granted by the Court. This Court is of the view that these factors are relevant to the reason for the delay. The longer the delay, the more the Applicant has to prove that his claim has an extremely high chance of success. A long delay will cause more prejudice to the interests of the Respondent than a short one.

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

(a) The age, education level, intelligence and background of the applicant;

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

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

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

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

[emphasis added]

16.  As regards R’s Strike Out Summons, there being no provisions in the ECO or the Employees’ Compensation (Rules of Court) Rules, Cap 282B governing the same, Order 18 rule 19 of the Rules of the District Court, Cap 336H (“RDC”) should be applicable: see Li Kwok Shing v Law Ka Fu & Another [2003] 3 HKLRD 173 at §54.

17.  The trite legal principles on striking out of pleadings, as summarised in Hong Kong Civil Procedure 2026 at §18/19/4, are that:

(1)  It is only in plain and obvious cases that the court should exercise its summary powers to strike out any pleading;

(2)  Disputed facts should be taken in favour of the party sought to be struck out;

(3)  The Court should not decide difficult points of law in striking out proceedings;

(4)  The applicant for strike out bears the burden to show a plain and obvious case; and

(5)  Where the legal viability of a cause of action is sensitive to facts, an order to strike out should not be made.

Relevant Events/Evidence

18.  A’s case of the Accident, the fact that R had already made substantial sick leave payments to her post-accident and the procedural history of this action as pleaded in the EC Application and stated in her Affirmation filed on 16 April 2026 in support of A’s 1^st Summons are not in great dispute:

(1)  A was born and received education in the Mainland up to Secondary One level. She knew simple Chinese only and had been working in the wet market since she came to Hong Kong about 10 years ago;

(2)  At all material times, she was employed by R to work in the latter’s fish stall selling fish and seafood at monthly earnings of about $26,400;

(3)  On 4 October 2022 whilst cutting a fish in the course of work, A was injured when a splinter of fish got into her left palm. She informed her supervisor of the Accident immediately;

(4)  The left palm became swollen and painful later in the day. A informed Lam of the Accident, and attended the Accident and Emergency Department of Prince of Wales Hospital to seek treatment. She was hospitalised immediately and was later transferred to Tai Po Hospital. She was diagnosed to have suffered infective tenosynovitis due to bacterial infection and required synovectomy of the left hand and fingers. She was hospitalised for almost a month until 1 November 2022;

(5)  A was granted sick leaves from the date of the Accident for almost 3 years up to around August 2025;

(6)  Since the Accident and until 31 July 2025, A received regular/periodical payments every half a month from R being 4/5 of her salary and reimbursement of medical expenses incurred and paid. A’s evidence is that she was told by Lam that R would pay her entitlements under the law, so she did not think it necessary to make a claim/lodge a court action;

(7)  R refused to make further payment to A since August 2025 and requested A to refund part of the payments already made;

(8)  A immediately sought help from the Resource Centre for Unrepresented Litigants (as a litigant acting in person). Later she filed the EC Application on 15 September 2025. She also reported the Accident to the Labour Department and filed a Notice of Accident (Notice by Employee of a Work Accident) on 14 October 2025;[9]

(9)  A was assessed by the Employees’ Compensation (Ordinary Assessment) Board on 24 December 2025. A Certificate of Assessment (Form 7) was issued on 7 January 2026,[10] certifying 10% permanent loss of earning capacity (“LEC”) and periods of absence from duty from 4 October 2022 to 4 August 2025, and from 8 August 2025 to 12 August 2025; and

(10)  On 12 March 2026, A filed a Notice of Appeal against Form 7[11] pursuant to s18 ECO in respect of the LEC assessment.

19.  The main disputes on facts between A and R are that:

(1)  A claims that she had received a total of $736,000 from R; but R argues that it had paid A $943,340 in total during the period from 9 November 2022 to 4 August 2025, for which R has produced payment records in support; and

(2)  A claims that she did not report the Accident to the Labour Department nor commence the action until almost 3 years later in September to October 2025 because Lam had requested her not to do so and promised her that R would continue to pay her compensation for as long as she provided sick leave certificates – this is categorically denied by Lam. A also claims that she did not know that she had to report the Accident to the Labour Department or commence a court action in order to claim employees’ compensation.

20.  Lam’s evidence is that shortly after A was discharged from the hospital back in early November 2022, they had arranged to meet on 9 November 2022 (to discuss about payments/medical expenses reimbursement). On the date of the scheduled meeting, Lam was tested positive with Covid. When he told A via WhatsApp that he could not meet her, A replied, “這樣呀。哎。那我現在怎麼辦。你有幫我報勞工嗎？我要生活呀老板”.[12]

21.  R argues that A’s alleged ignorance about reporting the Accident to the Labour Department is contradicted in light of this conversation which took place shortly after the Accident and A’s subsequent report made to the Labour Department.

Analysis/Discussion

22.  I have borne in mind the legal proposition, in considering an application for striking out, that disputed facts should be taken in favour of the party sought to be struck out, ie A.

23.  Having considered all the evidence in particular the fact that R had since November 2022 been making regular periodical payments to A allegedly based on her legal entitlement, I accept A’s evidence that she was induced by R to believe that it was unnecessary to make a claim/take court action. Evidence of payment records shows that the regular periodical payments were calculated based on the number of days of sick leave times a factor of 4/5 (as provided in s10 of the ECO).

24.  I do not think the conversation with A referred to by Lam in §20 hereinabove can be interpreted, as suggested by R, to mean that A had had knowledge of the need to report the Accident to the Labour Department or commence court action within the prescribed time limit, yet she had chosen to sleep on her rights until almost a year after expiration of the 2-year time limit.

25.  I accept A’s explanation that as R had continued to make her periodical payments as promised up to July/August 2025, she had all along thought that a claim for compensation or report to the Labour Department was not necessary.

26.  It is in my view reasonable to infer from the circumstances that such a belief (of no necessity to make a claim) or the failure to make an application under the ECO of A within the time limit was induced by the employer in such circumstances as reasonably warranted it. Even if R had not verbally induced A not to report or make a claim, it was reasonable for A to be induced not to do so in view of the continuous sick leave/periodical payments made by R.

27.  It was also reasonable for A to continue to have such a belief until around August 2025 when R refused to pay her further periodical payments, or even asked her for refund of part of the payments made. She did not until then become aware that she could not rely on the promise of R and not ascertain her legal rights arising from the Accident. She promptly sought help from the Resource Centre for Unrepresented Litigants, and filed the EC Application on 15 September 2025.

28.  Considering all evidence, I am inclined that A has shown reasonable excuse for the delay in not issuing the EC Application before the 2-year time limitation expiring on 3 October 2024.

29.  R has not raised any issue of prejudice that will arguably be suffered despite its objection to leave being granted to A to proceed this action out of time. Given R had notice and knowledge of the Accident from day one and has all along been provided by A the medical certificates, I do not consider its position in defence will be prejudiced should leave to proceed the action out of time be granted.

30.  As to the consideration of merits/whether there is sufficient ground to support an award of employees’ compensation to A, this will be considered together with the additional ground of abuse of process raised by R, or R’s arguments that A’s rights under the ECO had already been extinguished by the substantial periodical payments she had received.

Abuse of Process/Striking Out

31.  Counsel for R argue that even if this Court is minded to grant leave to A to proceed the action out of time, A’s claim herein should still be struck out given she had received total payments (of $943,340) from R in excess of the potential minimum compensation achievable under the ECO even after a full hearing. They rely on s31(1) ECO and the following judgments in which the applicants’ claims were stayed or struck out pursuant to settlement agreements having been reached and paid at amounts higher than the potential minimum:

(1)  Shiu Ying Kwong v Po On & Anor (unreported, DCEC 322/1988, 7 December 1989); and

(2)  Chan Chun Shing v Silver Way Enterprise Limited (unreported, DCEC 1955/2011, 4 June 2014).

32.  In my view, this ground is misconceived as there was never any “settlement agreement” reached in the present case. This argument flies in the face of R when Lam denies that he had ever promised A or agreed to pay her legal entitlements such that she needed not commence a court action to claim employees’ compensation.

33.  R’s counsel in their skeleton submissions also set out calculations of A’s potential claims under s9, s10 and s10A of the ECO with a view to demonstrating that the total potential maximum claim falls below the total payments which she had already received. Hence A’s rights under the ECO had been extinguished and not viable.

34.  I reject this argument as it has ignored the effect of s10(4) of the ECO which states:

“(4) In the event of death or permanent incapacity following a period of temporary incapacity whether total or partial, no periodical or lump sum payments paid or payable under this section shall be deducted from any amount of compensation payable under section 6, 7, 8 or 9.”

[emphasis added]

35.  Hence the alleged set-off is not allowed. As correctly quoted by A’s counsel, in Kan Wai Ming v Hong Kong Airport Services Ltd [2011] 3 HKLRD 497, Fok JA (as he then was) held that as each of the sums assessed under sections 9, 10, and 10A of the ECO is separately assessed on different bases and for different types of compensation (§32), any overpayment made by way of interim payment/ periodical payments pursuant to s10 ECO should not be used to set off compensation awarded under other provisions of the ECO. This is so even in the case that the interim payment/periodical payments is/are in excess of the total amount for compensation awarded (§§43-45).

36.  In the present case, the evidence shows that R had paid A since 9 November 2022 up to July/August 2025 for (i) reimbursement of some medical expenses incurred and paid by A (s10A); and (ii) 4/5 salary payments based on certified sick leaves (s10). Even if there were overpayments under s10, they cannot be set off against other items of claim in accordance with Kan Wai Ming (supra), ie A would at least still be entitled to a claim under s9.

37.  I do not accept the submission of R’s counsel that the nature of payments made to A was not clear and might not be under s10 of the ECO. Calculations of the payments marked on the payment records clearly show that they were made based on the number of days of sick leaves and a factor of 4/5, apparently all made under s10.

38.  I therefore conclude that A’s claim herein is meritorious and not bound to fail, and that her entitlements under the ECO have not been extinguished by the payments previously made by R under s10.

39.  Consideration of merits also tips the balance in favour of granting leave to A to proceed this action out of time.

40.  This is clearly not a plain and obvious case that the court should exercise its summary power to strike out the EC Application under O18 r19 RDC.

41.  Whether A has lodged an appeal against the Form 7 under s18 ECO within time, as A has done in the present case, would have no bearing on my consideration and decision under s14(4).

Conclusion

42.  I find that A has satisfied the requirement of and demonstrated a reasonable excuse required under section 14(4) of the ECO. In the interest of justice, her application under A’s 1^st Summons ought to be allowed.

43.  R’s Strike Out Summons is dismissed.

Costs

44.  There is no reason why costs should not follow the event.

45.  R does not object to the amendments to the EC Application sought in A’s 1^st Summons and A’s 2^nd Summons, the costs having been agreed to be payable by A to R.

46.  Other than these agreed costs, A is the winner of the contested summonses and issues.

47.  R argues that A should not have costs since she was seeking the indulgence of the court in proceeding the EC Application out of time.

48.  The evidence however shows that R had knowledge as to the reasons for A’s delay or inaction in commencing the EC Application within time, in that A was all along being paid compensation by R. Hence she had the belief that it was not necessary for her to report to the Labour Department or commence the action. The delay was induced, or at least contributed to, by R.

49.  Viewing the background and the reasons for the delay in this light, I accept A’s submissions that R has acted unreasonably in opposing A’s application under s14(4) ECO and taking out R’s Strike Out Summons.

50.  Since R has unsuccessfully contested A’s 1^st Summons in respect of the s14(4) application for leave out of time, save as to the costs of the amendment to the EC Application which are agreed to be payable by A to R, A should have costs of A’s 1^st Summons and of the hearing, with certificate for counsel, to be taxed if not agreed.

51.  Costs of R’s Strike Out Summons, together with costs of R’s 2^nd Summons (for adding the ground of abuse of process in R’s Strike Out Summons) and of the hearing, should be awarded to A, with certificate for counsel, to be taxed if not agreed.

52.  I have considered the submissions of A’s counsel on seeking indemnity costs against R. The alleged special feature of strong inducement on the part of R leading to the lateness of A in commencing this action in fact refers to the responsible acts of R as the employer in paying A substantial periodical payments over 34 months post-accident based on the sick leave certificates submitted. I do not consider the litigation conduct of R to be in any respect improper or showing bad faith justifying a penalty of indemnity costs. I refuse to make an order of indemnity costs.

ORDER

53.  I therefore make the following Order in respect of the Summonses:

(1)  R’s Strike Out Summons and R’s 2^nd Summons be dismissed with costs to A, including the costs of the hearing, payable by R, with certificate for counsel, to be taxed if not agreed;

(2)  By consent, A’s 2^nd Summons be allowed with costs to R, to be taxed if not agreed; and

(3)  In respect of A’s 1^st Summons:

(i)  Leave be granted to A to proceed the EC Application out of time;

(ii)  By consent, leave be granted to A to amend, file and serve within 14 days from the date hereof the Application filed herein on 15 September 2025 in the manner shown in the draft attached to A’s 2^nd Summons, including amending the name of R from “有記生猛海鮮” to become “CHAN OI PING trading as 有記海鮮”;

(iii)  By consent, costs of the amendments provided in (ii) hereinabove, including the costs of the consequential amendments to the Answer filed on 24 November 2025, if any, be to R, payable by A, to be taxed if not agreed; and

(iv)  Save as to the costs provided in (iii) hereinabove, costs of A’s 1^st Summons, including the costs of the hearing, be to A and payable by R, with certificate for counsel, to be taxed if not agreed.

54.  The above costs orders stated in §§53(1) and 53(3)(iv) are nisi. In the absence of application from any of the parties to vary the costs orders within 14 days by written submissions, the costs orders nisi shall become absolute.

55.  Further case management directions pursuant to the leave granted to A to proceed the EC Application herein will be granted.