LAU KA LAI v. HUMANA MEDICAL LTD T/A HEALTH CARE & CO

DCCJ 3186/2022

[2025] HKDC 1176

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3186 OF 2022

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DECISION

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A.  Introduction

1.  By summons filed on 16 October 2024, the Defendant applied to strike out parts of the Amended Statements of Claim (the “ASOC”) which concern claims for personal injuries allegedly suffered by the Plaintiff (the “PI Claims”).

2.  On 7 April 2025, Master Vincent Kee allowed the application and struck out §§26 to 32, 35(5)[1], 36 and 37 of the ASOC, on the basis that the PI Claims are time-barred, frivolous and/or vexatious.

3.  This is the Plaintiff’s appeal against the learned Master’s decision. It is trite that the appeal operates by way of a rehearing as if it came before me for the first time.

4.  The Plaintiff acts in person in this appeal (and also before the learned Master). I have ascertained from her that she is content for this decision to be written in English. If it is necessary, the Plaintiff may approach my clerk to make an appointment with a Court interpreter for this Decision to be interpreted.

B.  Background facts

5.  The following background facts are not disputed.

6.  The Plaintiff was employed by the Defendant as a saleslady from 7 November 2011 to 30 November 2018[2].

7.  On 30 December 2021, the Plaintiff commenced proceedings against the Defendant in the Labour Tribunal (LBTC 4269/2021). The Plaintiff’s claims were for[3]:

(1)  Commissions during paid leave and annual leave;

(2)  Payments for sick leave and meal breaks;

(3)  Damages for physical and psychological injuries（“身體及心理健康賠償”）.

8.  The Labour Tribunal proceedings were later transferred to the District Court which resulted in the present action. This transfer was necessary because, as acknowledged by the Plaintiff in the ASOC, her claim included damages for physical and psychological injuries that were outside the jurisdiction of the Labour Tribunal[4].

9.  The same claims for physical and psychological injuries （“身體及心理健康賠償”）are brought in this action[5], ie the PI Claims.

C.  Issues to be decided and applicable legal principles

10.  Logically, I agree with the Defendant that the issues I need to decide in this appeal are as follows:

(1)  Whether the PI Claims are claims for “personal injuries” within the meaning of the Limitation Ordinance (Cap 347, “LO”);

(a)  If so, whether the PI Claims are time-barred by virtue of s27 LO;

(b)  If so, whether the Court should exercise its discretion under s30 LO to disapply s27 LO;

(2)  Alternatively, whether the PI Claims should be struck out on the ground that they are frivolous or vexatious.

11.  I bear in mind the well-known principles that a strike out is appropriate only in plain and obvious cases, and that disputed facts should be taken in favour of the party sought to be struck out. A claim is frivolous when it is incapable of reasoned argument, lacks foundation or where it cannot possibly succeed. A claim is vexatious when it is oppressive or lacks bona fides. See Yifung Properties Ltd v Manchester Securities Corp (unreported, HCA 1341/2014, 19 October 2015) at §§10, 12-13.

D.  Limitation

D1.  Meaning of claims for “personal injuries”

12.  Section 2 LO materially provides as follows:

“Personal injuries includes any disease and any impairment of a person’s physical or mental condition, and injury（傷害）shall be construed accordingly.”

13.  I have no hesitation in concluding that the PI Claims fall within this definition, for the following reasons.

14.  First, in §26 of the ASOC, the Plaintiff seeks damages for:

(1)  Fatigue and exhaustion (§26B);

(2)  Discomfort during and after meals (§§26E, 26F and 26H);

(3)  Serious impairment to the Plaintiff’s physical and psychological health (§26I);

These self-evidently fall within the meaning of personal injuries under s2 LO.

15.  Second, in §37 of the ASOC, the Plaintiff relies on a breach of the Occupational Safety and Health Ordinance (Cap 509) and alleges that she suffered injuries and damages (the Chinese words “傷害或損失”were used). The term“傷害”is identical to that used in s.2 LO.

16.  Third, in Prayer 5 of the ASOC, the Plaintiff seeks HK$110,700 as damages for physical and psychological injuries （“身體及心理健康賠償”）.

17.  Fourth, as the Plaintiff herself pleads[6], the Labour Tribunal proceedings were transferred to the District Court squarely because her claims included damages for physical and psychological (ie personal) injuries.

18.  For these reasons, it is clear that the PI Claims are claims for “personal injuries” within the meaning of s2 LO. Accordingly, s27 LO is engaged.

D2.  Application of s27 LO

19.  The time limit stipulated in s27(4) LO is, subject to the application of s.30 LO, 3 years from the date on which the cause of action accrued or the date (if later) of the Plaintiff’s knowledge (within the meaning of s27(6)(c) LO).

20.  Neither the ASOC nor the Plaintiff’s affirmation filed in opposition to the strike out application identify any dates in relation to specific events or accidents that led to her injuries, apart from an incident that took place on 28 August 2017 when the Plaintiff claimed to have suffered injuries when she was going to work after the typhoon signal was lowered (the “2017 Accident”)[7].

21.  Leaving the 2017 Accident aside for the moment, upon my enquiries at the hearing, the Plaintiff says that the PI Claims stem from a series of ongoing and continuous events (rather than discrete or isolated incidents) that took place during her employment with the Defendant which led to her injuries.

22.  It is common ground that the Plaintiff left the Defendant’s employment on 30 November 2018. This necessarily means that the PI Claims regarding the alleged “continuing” injuries arising from the Plaintiff’s employment with the Defendant became time-barred on 30 November 2021 at the latest. Even giving the maximum benefit to the Plaintiff and assuming that I should consider time with reference to the commencement of the Labour Tribunal proceedings (30 December 2021) and not this District Court action, the Plaintiff was still out of time.

23.  The Plaintiff submits that she only had knowledge (within the meaning of s27(6)(c) LO) in 2021[8] when she became aware that some other employers would close down their shops during lunch hour to allow their employees to have lunch. The Plaintiff says that she therefore felt “cheated”（“欺騙”）by the Defendant when the Defendant asked her to have lunch whilst the shop remained in operation such that she had to attend to customers simultaneously. The Plaintiff says that it was only then (ie in 2021) that she acquired the requisite knowledge such that time should be deferred.

24.  I reject the Plaintiff’s submission. I am unable to see how the behaviour of other employers may have a bearing on the Plaintiff’s knowledge of any of the relevant facts set out in s27(6)(c) LO. The Plaintiff was also issued a receipt by a Chinese medical practitioner on 16 April 2014[9] when she was under the Defendant’s employ. This suggests that as early as 2014, the Plaintiff was already aware or at least should have been aware of her physical injuries caused by her employment with the Defendant (if any).

25.  The 2017 Accident adds nothing to the analysis. As the Plaintiff confirms[10], she received medical treatment after work that evening and was given sick leave for a total of 8 days. Medical records were also disclosed[11]. In my judgment, the cause of action relating to the 2017 Accident accrued on the day of the accident, and the Plaintiff clearly had contemporaneous knowledge of the matters set out in s.27(6)(c) LO. The cause of action relating to the 2017 Accident therefore became time-barred on 28 August 2020 at the latest and does not assist the Plaintiff insofar as the limitation argument is concerned.

D3.  Should time be extended under s30 LO?

26.  The Plaintiff argues that if the PI Claims are time-barred, the Court should exercise its discretion under s30 LO to extend time on the basis that she already approached the Labour Department on 26 November 2021 for assistance[12]. The Labour Department then referred her to commence proceedings in the Labour Tribunal (which she did on 30 December 2021). The Plaintiff contends she acted reasonably by approaching the Labour Tribunal within the limitation period (which expired on 30 November 2021 at the latest being 3 years after the Plaintiff left the Defendant’s employment), and this way of handling labour disputes (approach the Labour Department first) was recommended on the judiciary website as well[13].

27.  I am unable to accept this as constituting a sufficient reason for me to exercise my discretion under s30 LO. I specifically bear in mind the factors listed out in s30(3) LO but remind myself that the list is non-exhaustive. For reasons explained above I reject the Plaintiff’s argument that she only acquired the relevant knowledge in 2021. On this premise, the Plaintiff’s cause(s) of action accrued from the time she left the Defendant’s employment on 30 November 2018. There is nothing to suggest that she took any steps to reasonably pursue or at least investigate into the PI Claims until she approached the Labour Department a few days before the expiry of the limitation period. This is a factor relevant to s30(3)(a), (e) and (f) LO.

28.  I also consider that the PI Claims are doomed to fail (and hence frivolous and/or vexatious, see Section E below), and substantive merits is a relevant consideration in deciding whether to disapply the limitation period: Cheung Yin Heung v Hang Lung Real Estate Agency Ltd [2010] 3 HKLRD 67 at §§105-113.

29.  I therefore refuse to exercise my discretion under s30 LO to disapply the limitation period set out in s27 LO.

D4.  Conclusion on the limitation issue

30.  For the aforesaid reasons, the PI Claims are time-barred and should be struck out.

E.  The PI Claims are frivolous and/or vexatious in any event

31.  In case I am wrong on the limitation point, I would still have held that the PI Claims are frivolous and/or vexatious. This is because the Plaintiff confirmed at the hearing that she has not obtained, and will not obtain, any medical reports relating to the injuries she suffered allegedly caused by her employment with the Defendant[14]. She confesses that it is difficult for her to find any treating doctor for the compilation of medical reports in support of her claim[15].

32.  As a starting point, this is contrary to Order 18 rule 12 of the Rules of the District Court.

33.  Technicalities aside, it essentially means that the Plaintiff will never be able to provide medical proof on the nature and diagnosis of her alleged injuries. Worse still, I am unable to discern how she might be able to prove that such alleged injuries (if any) were caused by the Defendant’s negligence or were even work-related.

34.  In this connection, the complaints raised by the Plaintiff all appear to be circumstances regularly encountered by local workers and professionals, such as long hours of work and limited mealtime. Absent any proper medical proof showing the nature, diagnosis and causes of her alleged injuries, coupled with the fact that the PI Claims relate not to specific or isolated incidents but more generally to work conditions that allegedly continued during the Plaintiff’s employment with the Defendant, in my judgment it is impossible (not just improbable) for the Plaintiff to succeed on the PI Claims.

35.  It therefore follows that the PI Claims are frivolous and/or vexatious and ought to be struck out.

F.  Which parts of the ASOC should be struck out?

36.  I have held that the PI Claims as a topic should be struck out. The more difficult question is to identify with precision the parts of the ASOC that pleads or relates to the PI Claims. I say this because the ASOC is not a document that is readily comprehensible or digestible (but I mean no criticism or disrespect, in fact the Plaintiff who is not legally trained has done her best in formulating her complaints).

37.  It is clear that §§26, 37 and Prayer 5 of the ASOC should be struck out: see Section D1 above.

38.  As to §§27 to 32 and 36 of the ASOC, the Plaintiff says that they are only background materials and should not be struck out. She further confirms that she will not at trial utilise those pleas to resurrect the PI Claims (or indeed any claim for personal injuries) through the backdoor. I am prepared to be generous (but only just) and will allow those paragraphs to remain, on the express premise that they do not allow the Plaintiff to run any personal injuries claims at trial.

G.  Disposition and costs

39.  I therefore strike out §§26, 37 and Prayer 5 of the ASOC and allow §§27 to 32 and 36 of the ASOC to remain. The appeal is allowed to this limited extent.

40.  Technically my order above should be reflected by crossing out the relevant paragraphs in the ASOC. However, I am told that there will be a hearing on 21 July 2025 before a master regarding a separate application to amend pleadings. I direct that the parties shall report my decision to the presiding master so that all amendments may be handled in one go.

41.  As to costs, I am of the view that the Plaintiff should be seen as the unsuccessful party in the appeal. She lost on the key issue (which is whether the PI Claims should be struck out). I therefore make an order nisi that the Plaintiff shall pay the Defendant’s costs of the appeal, to be taxed if not agreed, with certificate for (one) counsel. Any party seeking to vary the costs order nisi may apply by way of letter within 14 days.