Mohammad Javed v Lo Kui Cheung And Another

Judgment Date29 May 2015
CourtDistrict Court (Hong Kong)
Judgement NumberDCEC1230/2014
Subject MatterEmployee"s Compensation Case

DCEC 1230/2014
DCPI 1995/2014
(Heard Together)








LO KUI CHEUNG 1st Respondent








LO KUI CHEUNG 1st Defendant


Before: Deputy District Judge Elaine Liu in Chambers (Open to public)
Date of Hearing: 8 April 2015
Date of Decision: 29 May 2015





1. There are 6 Summonses before me, 3 of them were issued by each of the parties respectively in the employees’ compensation action numbered DCEC 1230 of 2014 (“EC Action”), and the other 3 were issued by each of them in the personal injury action numbered DCPI 1995 of 2014 (“PI Action”).

2. The question to be determined in these 6 Summonses is basically whether the EC Action and the PI Action shall be struck out on the ground that they were commenced out of the statutory time limit, or the court shall receive and determine these two actions notwithstanding that they were time-barred.

3. The accident that caused the injury which was the subject of the present claims happened on 2 August 2010 (“the Accident”). The EC Action and the PI Action were taken out on 17 June 2014.

4. The EC Action was commenced 22.5 months after the expiry of the statutory required period of 24 months under section 14(1) of the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

5. The PI Action was commenced 11.5 months after the expiry of the statutory time limit as required under section 27(4)(a) of the Limitation Ordinance, Cap 347 (“LO”).

6. The parties in these two actions are the same. I will refer them respectively as the Applicant, the 1st Respondent and the 2nd Respondent.


EC Action - section 14 of the Employees’ Compensation Ordinance

7. Section 14(1) of the ECO requires an employee who was injured in the course of employment and intends to claim compensation under the ECO to apply to the court within 24 months from the occurrence of the accident, failing which, proceedings for recovery under the ECO for the injury shall not be maintainable.

8. Another requirement under section 14(1) of the ECO is that the employee shall give notice of the accident to the employer as soon as practicable after the accident. There was no dispute that the 1st and 2nd Respondents were aware of the Accident shortly after it was happened. This is, therefore, not an issue in the present claims.

9. Section 14(4) of the ECO provides that notwithstanding the non-compliance of section 14(1), the court may receive and determine an application for compensation under the ECO if it was satisfied that “there was reasonable excuse for the failure so to give notice or to make an application, as the case may be”.

“Reasonable Excuse”

10. The often cited and applied passage about the interpretation of “reasonable excuse” in section 14(4) of the ECO was the following judgment of His Honour Judge Charles in the case of Wong Man-tak v Shaws & Sons Limited [1957] DCLR 85 at page 88 to 89: -

“A reasonable excuse in the ordinary sense of the phrase means in relation to a failure by an applicant to make his application for compensation within the prescribed period if the failure was due to such cause or causes that it ought, as a matter of reason, to be excused. …… Moreover, an applicant was not excused if he had a reasonable cause which operated only for part of the period. He had to have reasonable causes for the whole period. Thus while an applicant might delay making his claim until the last moment of the prescribed period, he was not entitled to be excused if his last moment claim was prevented by a reasonable cause unless he could show that he had good reason for not making his claim before that cause arose. Aldridge v Warwickshire Coal Company and Aston v London North Eastern Railway. The principles 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 was due to a cause or causes other than unreasonable conduct or an unreasonable decision on his part.”

[See also: Kwok Yau-tai v Tung Wah Group of Hospitals, DCEC 44 of 2000, 11 April 2002, per His Honour Judge Carlson; Chu Suk Han v Szeto Wai Yin and Wong Yun Wa both trading as Wing Tat High Fashions Trading Co, DCEC 402 of 2002, 16 October 2002, per Deputy District Judge W Chan]

11. The power to extend time under section 14(4) of the ECO is discretionary. The court has to take into account of the circumstances both before and after the expiry of the statutory time limit. In the exercise of its discretion whether to extend time, a court would not assist a party who has slept on his rights. [See: Lau Suet Fung v Future Engineering Co, CACV 110 of 2003, 6 February 2004 at paragraphs 62 to 69]

12. The Court of Appeal in Tsang Loi Fat (transliteration) (曾來發) v Sun Fook Kong (formerly known as Sung Foo Kee Limited (新福港(前名為孫福記營造有限公司)[2011] 4 HKLRD 336, English translation at 344, has set out the following non-exhaustive list of factors that are relevant in considering whether an applicant has a reasonable excuse for the failure to commence the proceedings within the prescribed time:-

(1) reason for the delay;

(2) length of the delay;

(3) whether there is sufficient ground to support an award of employees’ compensation to the applicant;

(4) any prejudice to the respondent if an extension of time is granted.

13. The Court of Appeal further listed the following common but non-exhaustive factors that have to be taken into account when consider the reason for the delay:-

“(1) The age, education level, intelligence and background of the Applicant;

(2) 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;

(3) 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

(4) 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.”

14. It is well established that ignorance of the rights to claim is generally not considered a reasonable excuse for the delay. [Tsang Loi Fat (transliteration) (曾來發) v Sun Fook Kong (formerly known as Sung Foo Kee Limited (新福港(前名為孫福記營造有限公司), supra, Roles v Pascall & Sons (CA) [1911] 1 KB 982; Chan Wing Chuen v Sun Cheong Bleaching & Dyeing Factory Ltd [1989] HKDCLR 55; Tsui Man Cheong v Lee Hung Ying Vicky trading as Fei Tsui Transportation Company, DCEC 1290 of 2008, 21 September 2009, at paragraph 6.]

PI Action - Sections 27 and 30 of the Limitation Ordinance

15. The statutory time limit to commence the PI Action is governed by section 27(4)(a) of the LO which provides that the time limit for commencing the PI Action shall be 3 years from the date on which the cause of action accrued, that is the date of the Accident in the present case.

16. In Donovan v Gwentoys Ltd [1990] 1 WLR 472 at 479, Lord Griffiths held that:-

“The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is a claim he never expected to have to deal.”

17. The court has the power, under section 30 of the LO, to override the statutory time limit if it appears that it would be equitable to do so. The court shall have regard to all the circumstances in particular to the following matters listed out in section 30(3)(a) to (f):-

(1) length of and reason for the delay;

(2) extent to which, having regard to the delay, the evidence adduced or likely to be adduced by any of the parties, is or is likely to be less cogent than if the action had been brought within time;

(3) conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(4) duration of any disability of the plaintiff arising after the date of accrual of the cause of the action;

(5) extent to which 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 of giving rise to an action for damages; and

(6) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

18. The court performs a balancing exercise to weight the degree of prejudice to each party, to consider the six factors in section 31(3) of the LO listed above and all the circumstances of the case to determine whether it would be equitable to disapply the limitation...

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