New Generation English Kindergarten (Tuen Mun) Operated By Multistable Ltd v. Concord Insurance Co Ltd

HCA 607/2024

[2026] HKCFI 2621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 607 OF 2024

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D E C I S I O N

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A.  INTRODUCTION

1.This is the hearing of the Plaintiff’s summons dated 27 October 2025 (as amended on 2 February 2026) (“Summons”), in which the Plaintiff (“P”) seeks to obtain (1) summary judgment under O14 RHC against the Defendant (“D”), Concord Insurance Company Limited; and alternatively (2) determinations of certain questions of construction under O14A RHC in respect of a Shop Care Plan Insurance Policy no. 1CS/01743/22 dated 16 August 2022 (“Subject Policy”).

2.In the underlying case, the dispute primarily concerns D’s entitlement to reject P’s insurance claim (“Claim”) under the Subject Policy on the basis of certain of its exclusion clauses, as well as P’s alleged non-compliance with the notification procedure stipulated therein.

B.  FACTUAL BACKGROUND

3.P is a limited company incorporated in Hong Kong. It operated a kindergarten in Tuen Mun (New Generation English Kindergarten (Tuen Mun)) (“Kindergarten”) until it ceased operation on or about 31 July 2024.

4.D is an insurance company carrying on insurance business in Hong Kong.

5.In August 2022, P purchased two insurance policies from D, namely: -

(1)  A Group Personal Accident Insurance Policy no. 1PA/14481/22 dated 15 August 2022 (“Personal Accident Policy”), whereby D agreed to insure P’s existing and future full-time students and 47 staff on the terms and conditions thereof. The period of insurance was from 1 August 2022 to 31 July 2023. The Personal Accident Policy had a limit of HK$100,000 for permanent total disablement and a limit of HK$10,000 for medical and surgical expenses per insured person.

(2)  The Subject Policy dated 16 August 2022, whereby D agreed to insure P on the terms and conditions thereof. The period of insurance was from 1 August 2022 to 31 July 2023. As will be explained below, this Court is now concerned with the construction of two specific clauses of this Subject Policy.

B1.  The Incident

6.On 24 April 2023, a 4-year-old pupil of the Kindergarten (“Pupil”) suffered from a choking incident whilst having a slice of cake during a breakfast break inside the classroom (“Incident”). As a result of the Incident, the Pupil suffered serious personal injuries.

7.By Writ of Summons dated 18 July 2024, the Pupil (suing by his father and next friend) commenced a personal injuries action under HCPI 199/2024 against P (“PI Action”) claiming damages in the sum of around HK$43 million – HK$45 million.

8.In the PI Action, the Pupil alleges that P, and/or its employees (for which P is vicariously liable for), were in breach of the duty of care owed to the Pupil and were negligent in the handling of the Incident. The main thrust of P’s claim for negligence concerns (1) the mishandling of the choking incident by P’s employees, who allegedly failed to provide proper and adequate response and to promptly send the Pupil to the hospital; and (2) the systematic failure on the part of P in establishing or devising proper protocols or procedures and hiring competent staff to deal with the emergency situation.

9.In its Defence filed in the PI Action, P denies (1) that it and/or its employees were negligent and (2) any causal link between the alleged negligent acts and the Pupil’s injuries.

B2.  P’s Notification to D about the Incident

10.It is common ground that after the Incident, P has submitted two claim forms: -

(1)  On 8 May 2023, the Principal of the Kindergarten submitted a completed “Personal Accident Insurance Claim Form” (“May Claim Form”) to the secretary of a Ms Bernice Chan (who, according to P, was D’s agent) by way of email.

(2)  On 9 November 2023, P further submitted a Public Liability Insurance Claim Form (“November Claim Form”). In the November Claim Form, P stated that there was a meeting with the Pupil’s father on 11 July 2023 (“July 2023 Meeting”), during which the Pupil’s father indicated a potential claim against P’s insurer.

11.P further relied on the fact that the Principal of the Kindergarten notified Bernice Chan of the Incident by telephone on 2 May 2023.

B3.  D’s Rejection Letters dated 11 January 2024 and 2 February 2024

12.On 13 November 2023, D issued a letter to P acknowledging receipt of the November Claim Form. It was also stated inter alia that P had failed to comply with the notification procedure under the Subject Policy.

13.By letter dated 11 January 2024 (“1^st Rejection Letter”), D rejected P’s Claim on the following grounds: -

(1)  First, it was stated that P’s Claim fell within the exclusion clause 10(a) and/or (b) (“Exclusion Clauses”) under section 4 of the Subject Policy, in that section 4 does not cover liability in respect of “any breach of professional duty or service whether of omission or commission” or “any advice or act, whether of omission or commission given or performed in a professional capacity”.

(2)  Secondly, it was stated that P had failed to comply with General Condition B(1) of the Subject Policy, in that P had failed to advise D as soon as reasonably possible when a claim occurs or is likely to occur.

14.D further elaborated its grounds of rejection in its letter dated 2 February 2024 (“2^nd Rejection Letter”, together with the 1^st Rejection Letter, the “Rejection Letters”). It maintained the position that P’s Claim was excluded by the Exclusion Clauses and that P had failed to comply with the notification procedure under the Subject Policy.

15.In the 2^nd Rejection Letter, four points were emphasised by D: -

(1)  First, D reiterated that “child caring” in a kindergarten was clearly part of its professional duty. Teachers and schools were expected to show care towards a child under its charge as would be exercised by a reasonably careful parent. Such care was not limited to providing education, especially in the pre-primary education setting.

(2)  Secondly, D stressed that kindergartens had sole care and control over pupils and hence were in a different position from premises accepting children such as Jumpin’ Gym USA. Further, kindergartens were regulated by statute. They had to be registered under the Education Ordinance (Cap 279) (“EO”).

(3)  Thirdly, due to the professional duty of a kindergarten educating and taking care of young children, the Education Bureau and the Social Welfare Department had published an operation manual for pre-primary institutions from newborn to 6 years providing guidelines covering preparation/choice of food, choking hazard and handling emergencies.

(4)  Fourthly, the claim (or potential claim) that P must advise D of was specific under each policy.

B4.  Material Terms of the Subject Policy

B4.1   The Insurance Cover

16.Section 4 of the Subject Policy provides that: -

“COVER

The Company will indemnify the Insured against all sums which the Insured shall become legally liable to pay as compensation for:

(1) accidental bodily injury to or illness or disease of any person not being an Employee partners or directors of the Insured…

caused by or through any negligent act of the Insured or his Employees occurring within Hong Kong SAR in connection with the Insured’s business during the period of insurance. The total liability in respect of all claims for compensation for all accidents in the period of insurance under this Section shall not exceed the amount specified under the Limit of Liability here below.

In respect of a claim for compensation to which the Indemnity expressed in the Policy applies, the Company will also indemnify the Insured against

(a) costs and expenses of litigation recovered by any claimant from the Insured and

(b) costs and expenses of litigation incurred with the consent of the Company.

Provided always that the aggregate liability of the Company under this Section shall not be increased beyond the amount specified under the heading of Limit of Liability here below.

LIMIT OF LIABILITY

HKD5,000,000 for any one accident and the period of insurance.”

17.Pursuant to Memorandum A of the Subject Policy, the parties agreed that that the limit of liability shall be HK$30 million for any one accident and the period of insurance.

18.Pursuant to Memorandum B of the Subject Policy, it is further provided that: -

“OUTDOOR ACTIVITIES EXTENSION

It is hereby noted and agreed that this Policy is extended to cover all outdoor activities held and/or organized by the Insured anywhere in Hong Kong.

Subject to the followings: -

(1) maximum liability: HKD10,000,000 Any One Accident / Unlimited Any One Period

(2) excluding sports and swimming activities

(3) number of outdoor events within every school year: not more than 20 events.”

B4.2   The Exclusion Clauses

19.The Exclusion Clauses relied upon by D for the purposes of these proceedings are as follows: -

“EXCLUSIONS

The Company under this Section does not cover liability

…

(10) in respect of:

a. any breach of professional duty or service whether of omission or commission;

b. any advice or act, whether of omission or commission given or performed in a professional capacity;

c. any medicine, drug, article, commodity or thing supplied,

d. fines, penalties or liquidated damages” (underlining emphasis added)

B4.3   The Notification Clause

20.General Condition B(1) of the Subject Policy provides that: -

“When a claim occurs or is likely to occur the Insured must advise the Company as soon as reasonably possible.”

(hereinafter referred to as the “Notification Clause”)

C.  THE PRESENT APPLICATION

21.On 28 March 2024, P commenced the present proceedings against D seeking various declaratory reliefs including inter alia a declaration that D shall indemnify P up to the limit of HK$30 million as provided under the Subject Policy and a payment of such sum by D.

22.By the present Summons, P seeks the following reliefs from this Court: -

(1)  Under O14 RHC:

“1. a declaration that the Defendant is not entitled to avoid the Policy no. 1CS/01743/22 dated 16 August 2022 … issued by the Defendant or reject a claim by the Plaintiff under the Policy…in connection with the accident occurred on 24 April 2023 … involving the Plaintiff’s former pupil … and the personal injury action commenced by the Pupil against the Plaintiff in HCPI 199/2024…

2. a declaration that the Defendant has wrongfully rejected the Claim.

3. a declaration that the Defendant shall indemnify the Plaintiff up to the limit of HK$30 million as provided under the Policy:

(a) against any sums which the Plaintiff may be liable to pay to the Pupil including interest and costs payable (whether pursuant to a judgment or by way of a settlement); and

(b) the costs and expenses incurred or to be incurred by the Plaintiff in respect of or in connection with and incidental to the Accident and the PI Action.”

(2)  Under O14A RHC: Determinations of the following questions of construction concerning the Subject Policy, namely: -

“(a) on a proper construction of the Policy, does the Exclusion Clause under Section 4, which excludes liability for any breach of “professional duty or service” or any act performed “in a professional capacity”, operate to exclude a claim for indemnity in respect of accidental bodily injury allegedly arising from the provision of food to and/or the negligent supervision of a pupil during a meal break and/or the handling of (or failure to handle) the accident after it occurred?

(b) on a proper construction of General Condition B(1) of the Policy, does the notification of the Accident, provided by the Plaintiff to the Defendant or its agent on 2 and 3 May 2023, constitute compliance with that clause?

(c) whether the Defendant is (i) liable to indemnify the Plaintiff; or (ii) entitled to reject coverage, under the Policy in respect of or in connection with and incidental to the Accident and the PI Action?”

(hereinafter referred to as the “O14A Questions”)

D.  LEGAL PRINCIPLES: O14 AND O14A APPLICATIONS

23.The legal principles concerning O14 and O14A applications are well-established and are not in dispute.

D1.  Summary Judgment: Principles

24.The principles relating to an application for summary judgment may be briefly set out as follows: -

(1)  First, summary judgment is meant for clear cases. The court will not grant summary judgment where there is any serious dispute as to matters of fact or any difficult question of law.

(2)  Secondly, the burden rests upon the defendant to show that there is a triable issue or an arguable defence. The test is whether the defendant’s assertions are believable.

(3)  Thirdly, in considering whether there are triable issues, the court will not take the alleged defence on its face value, but will test it against the evidence disclosed in the affidavit including matters such as contemporaneous documents and inherent probability of the defence. However, it shall not conduct a mini-trial on affidavit evidence.

See Re Safe Rich Industries Ltd (unrep, CACV 81/1994, 3 November 1994) at §13 per Bokhary JA (as he then was); Guanghua SS Holdings Limited v Lim Yew Cheng [2022] HKCFI 1052 at §§12-13 per Ng J; So Muk Chung Roger v True Honest Co Ltd [2020] HKCFI 1269 at §6 per DHCJ To.

D2.  Determination of questions of law or construction: Principles

25.The O14A procedure is often adopted in cases which involve the determination only of a question of law or the construction of a document or where the whole case largely depends on the resolution of a question of law or the construction of a document. It is not necessary for the making of an application under O14A that the determination of a question of law or construction of any document would finally determine the whole action. It is sufficient if an issue in the case can be disposed of using such procedure: Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd & Another (2003) 6 HKCFAR 222 at §23 per Chan PJ.

26.However, as Chan PJ noted in §24 of Shell:-

“24. It must also be noted that it is inappropriate to use this procedure if the issues of facts are interwoven with the legal issues to be determined. For obvious reasons, the question of law or construction of document cannot be dealt with on assumed or hypothetical facts. And if it is necessary for the court to hear evidence to resolve a factual dispute in order to come to a determination on the question of law or construction of document, it would not normally be suitable to invoke O.14A.” (underlining emphasis added)

27.In Rockwin Enterprises Limited v Shui Yee Limited & Others [2003] 3 HKC 174 at §§18-20, Recorder Ma SC (as he then was) set out the court’s approach in dealing with an O14A application as follows: -

(1)  Is the relevant question one of law or of the construction of a document?

(2)  If so, is that question one that should be determined under the O14A procedure? This requires the court to be satisfied of the following: -

(a)  That the question of law or construction is one that is suitable for determination without a trial. In other words, the court has all the necessary facts and matters before it in order to determine the question of law or construction.

(b)  That if so suitable and should it be determined by the court, that it will finally determine (subject to a possible appeal) the entire cause or matter or any issue or claim therein.

(c)  Even if the above two conditions are fulfilled, that the court in its discretion is satisfied that the question is one that ought to be determined under O14A.

(3)  If the answer to (2) is “yes”, what is the determination of that question and what orders should the court make as a consequence of determining that question?

28.It should also be borne in mind that the court’s power to determine any question of law or construction under O14A is discretionary. Even if the conditions under O14A r1 are satisfied, the court still retains a residual discretion to decide whether to entertain such an application: Shell at §25; Rockwin at §§21-25.

29.With these principles in mind, I now turn to the issues before me.

E.  DISCUSSION: SUMMARY JUDGMENT

E1.  Contractual interpretation: Principles

30.The relevant principles on the interpretation of contracts are well-established: -

(1)  The court’s task in interpreting a contractual term is to ascertain the objective meaning of the language which parties have chosen to express their agreement: Wood v Capita Insurance Services Ltd [2017] AC 1173 at §10 per Lord Hodge JSC (as he then was).

(2)  Interpretation is a unitary exercise. It involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated: Wood at §12.

(3)  The starting point is the ordinary and natural meaning of the words of the contract, and in the vast majority of cases that is the ending point as well: Eminent Investments (Asia Pacific) Ltd v DIO Corp (2020) 23 HKCFAR 487 at §43 per Ribeiro PJ and Lord Collins NPJ.

(4)  In the more difficult cases, it is not particularly helpful to refer to the "ordinary and natural meaning" of words and in those cases the surer guide to interpretation is context: Eminent Investments at §43. The court should take into account the natural and ordinary meaning of the provision in question, the purpose of the contract and of the provision, other relevant provisions, the facts and circumstances known or assumed by the parties at the time that the contract was executed, the quality of the drafting of the instrument, and commercial common sense: Eminent Investments at §44.

31.As this case concerns the construction of insurance policies, Mr Chong has referred the court to the case of New World Harbourview Hotel Co Ltd v ACE Insurance Ltd (2012) 15 HKCAFR 120 at §34, where Sir Anthony Mason NPJ said: -

“34. The interpretation which should be adopted in the case of an insurance contract, as with other commercial contracts, is that which gives effect to the context, not only of the particular provision but of the contract as a whole, consistently with the sense and purpose of the provision. In arriving at the true interpretation, the court will read the words and expressions of the contract as ordinary commercial people would understand them in their context, preferring in appropriate cases that understanding to any technical legal meaning that the words or expressions may otherwise have. This proposition might be re-stated in terms of the passage in the judgment of Lord Hoffmann NPJ in Jumbo King Ltd v Faithful Properties Ltd without producing a different outcome in this case. And, certainly in cases of ambiguity, the courts will construe the relevant provision contra proferentem. Indeed, it has been said that this principle “strongly applies” to insurance policies.” (footnote omitted)

32.Whilst expressed in slightly different wordings, I do not think that there is any material difference between the principles stated in Eminent Investments and those in New World Harbourview Hotel for present purposes. In both cases, the Court of Final Appeal emphasised that the meaning of a contractual term must be ascertained by reference to the relevant context.

E2.  The Exclusion Clauses

33.P submits that D has no arguable defence based on the Exclusion Clauses contained in the Subject Policy. Mr Chong’s submissions are as follows: -

(1)  First, injuries to pupils are not excluded under Section 4 of the Subject Policy. Thus, it necessarily follows that the provision of childcare services would also be covered. Otherwise, it would be inconsistent with the commercial object of Section 4.

(2)  Secondly, P argues that the Outdoor Activities Extension (see §18 above) again shows that the care and supervision of children would be covered by the Subject Policy.

(3)  Thirdly, P argues that the Exclusion Clauses only intend to exclude pure economic losses arising from professional negligence.

(4)  Fourthly, and most importantly, P contends that childcare does not fall within the descriptions of “professional duty or service” or “professional capacity”. This is because “[t]asks such as supervising meals, maintaining general safety, administering basic first aid, and responding to emergencies form part of the general custodial duty of care owed in loco parentis.”

34.In my view, the first two arguments are fallacious and must be rejected: -

(1)  It is common ground that the injuries to pupils can, in principle, fall within the language of Section 4 of the Subject Policy. In fact, D has admitted in its Defence that the Incident constituted an event of “accidental bodily injury” within the meaning of Section 4 of the Subject Policy.

(2)  However, the fact that the Incident can in principle fall within Section 4 does not necessarily mean that it cannot fall under the Exclusion Clauses. Logic dictates that before an exclusion clause can operate, it must first be established that the relevant liability falls within the scope of the Subject Policy. If the Incident did not even fall within the scope of Section 4 in the first place, it would be pointless to consider the Exclusion Clauses.

(3)  Furthermore, I disagree that to hold otherwise would be inconsistent with the commercial object of the insuring clause, for the simple reason that not all injuries suffered by pupils are caused by a breach of professional duty or service on P’s part or acts done in a professional capacity. For instance, a pupil may be injured by a falling ceiling tile. Accidents of this nature may well be covered by the Subject Policy and yet do not fall within the Exclusion Clauses.

35.I am also unable to accept Mr Chong’s submission that exclusion clause 10 only intended to cover pure economic losses. That argument breaks down if one looks at sub-paragraph (c) of Exclusion Clause (10), which states that Section 4 does not cover liability in respect of “any medicine, drug, article, commodity or thing supplied”. As a matter of common sense, the damage caused by the supply of medicine or drug is not limited to pure economic losses but must include physical injuries. In any event, I can see nothing in the language in Exclusion Clause (10) limiting its scope of application to pure economic loss only.

36.This leaves us with P’s last argument, ie childcare does not fall within the descriptions of “professional duty or service” or “professional capacity”. In support of his contention, Mr Chong relies on the case of Chan Kin Bun v Wong Sze Ming & Another [2006] 3 HKLRD 208.

37.On the other hand, Mr Man submits that it is at least arguable that the negligent acts or omissions on the part of P and/or its employees were performed in a professional capacity or involved a breach of professional duty or service. In short, it is D’s case that the “proper handling of an emergency such as a choking incident was part of the care service that P and its teachers were expected to provide in their professional capacity.” His reasons are as follows:-

(1)  First, the operations of kindergartens are regulated by statute and other administrative guidelines, such as the “Operational Manual for Pre-primary Institutions” published by the Education Bureau (“Operational Manual”).

(2)  Secondly, relying on Phelps v Hillingdon LBC [2001] 2 AC 619, Mr Man submits that teachers are regarded as professionals.

38.First, it is helpful to look at the case of Chan Kin Bun, in which P heavily relies upon to support its argument that the duty owed by P to the Pupil was simply one of parental duty of care.

(1)  In Chan Kin Bun, following an exam in which T-square rulers were required, two students (the plaintiff and the 1^st defendant in that case), both aged 14, went to the snack bar in the covered area of the playground and began a mock sword fight. One of the T-square rulers broke and injured the plaintiff’s eye. The plaintiff then commenced personal injury proceedings against the other student and the school.

(2)  Deputy Judge Saunders (as he then was) held at §§24-25: -

“24. I am satisfied that the true distinction between the English authorities relied upon in Clerk & Lindsell on Torts (18th ed., 2000), and the Australian law as stated in Commonwealth of Australia v Introvigne (1982) 150 CLR 258 and El-Sheik v Australian Capital Territory Schools Authority & Others [1999] ACTSC 90, is that the former deal with the duty of an individual teacher, whereas the latter deal with the duty of the school authority. The Australian authorities are dealing with the vicarious liability of a school authority. I am satisfied that the law as stated in Australia in that respect, namely that a school authority owes to its pupils a duty to ensure that reasonable care is taken of them whilst they are on the school premises during the hours when the school is open for attendance, is the duty that is imposed upon a school authority in Hong Kong.

25. Consequently, I am satisfied that it is the law in Hong Kong that a school authority in Hong Kong must ensure that a system is established that will enable the teachers at the school to show such care towards children under their charge as would be exercised by a reasonably careful parent.” (underlining emphasis added)

39.Thus, whilst a teacher is expected to exercise reasonable care towards a child under his charge as would be exercised by a reasonably careful parent, P’s duty is somewhat different. P is under a duty to establish a system so as to enable the teachers at the school to show such care towards children under their charge as would be exercised by a reasonably careful parent.

40.The existence of such a duty has been admitted by P in the Defence filed in the PI Action, though it denies that it was in breach of such duty by reason of, inter alia, the fact that it had published a “School Crisis Management Handbook” (amended in August 2021), which was provided and explained to its staff.

41.I disagree with Mr Chong that this could be described as a duty to “exercise the care of a reasonably careful parent”, as such a duty is peculiar to a school operator. It appears to me that that submission confuses the duty owed by an individual teacher and the duty owed by the Kindergarten. In my view, it is at least arguable that this duty falls within the description of “professional duty” under the Exclusion Clauses.

42.Secondly, the legal context in which the Kindergarten operated is also relevant to the construction of the term “professional duty or service” and “professional capacity”. The fact that the operation of the Kindergarten was regulated by statute and administrative guidelines published by the Education Bureau supports D’s argument that the acts of P and/or its employees were performed in a professional capacity or involved a breach of profession duty.

43.For present purposes, it is sufficient for me to highlight the following provisions in the statute and the Operational Manual: -

(1)  All kindergartens (which fall within the meaning of “school” as defined under EO s 3) are required to be registered under Part II of the EO. The registration of a school can be refused or cancelled by the Permanent Secretary of the Education for a wide range of reasons, one of which being the “school is not being managed satisfactorily”: see EO ss 14 and 22, in particular s 22(1)(e).

(2)  The Kindergarten must comply with certain requirements regarding first aid as provided under Regulation 55 of the Education Regulations.

(3)  Furthermore, EO s 42(1) provides that no person shall teach in a school unless he is a registered teacher or a permitted teacher. Regulation 70A and Part 4 of the Second Schedule to the Education Regulations further set out the qualifications required for a permitted teacher teaching pupils undergoing nursery or kindergarten education.

(4)  Apart from the statutory requirements, kindergartens are also expected to comply with the Operational Manual. For instance: -

(a)  §4.5 of the Operational Manual provides for the requirements regarding first aid. In particular, §4.5.3 provides, inter alia, that “[p]rocedures to handle emergencies should be drawn up in advance to ensure that staff have the full knowledge of the available facilities of the institutions and also know how to make use of the facilities when necessary…”.

(b)  More specifically, regarding choking hazards, §6.1.8 of the Operational Manual provides that “[t]o minimise choking hazards from foods, young children should avoid foods like konjac (hard) jellies, Lunar New Year puddings, glutinous rice balls, chewing gum, marshmallows, hard or sticky candies, ice cubes, whole nuts and direct consumption of peanut butter and nut spreads without spreading”. §6.2.11 further sets out the precautionary measures that can be taken to reduce the choking risk of certain foods consumed by young children.

(c)  As for staffing, §8.1.2 of the Operational Manual describes the staff working in kindergartens “mainly are the professional staff providing education and care services for children”. Professional staff aside, kindergartens are required to employ other staff such as clerks and helpers for cooking, cleaning and general duties.

44.Thus, the care services provided by kindergartens (such as administering first aid and provision of foods) are also regulated by statute and administrative guidelines published by the Education Bureau and that P’s staff responsible for “providing education and care services” are described as “professional staff”. This runs contrary to P’s argument that childcare and administering basic first aid only form part of the general custodial duty of care and do not require specialised expertise. This factor, in my view, also supports D’s defence based on the Exclusion Clauses.

45.Mr Chong submits that it is impermissible for D to refer to the statutory provisions and the Operational Manual as this would effectively rewrite the parties’ bargain by transposing the contents therein to the terms of the contract.

46.I reject this submission. It is trite that the factual matrix informing the court’s construction exercise includes “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man”: Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912-913 per Lord Hoffmann. The statutory provisions and the Operational Manual were readily available to the parties at the time of contract, as they were all contained in publicly available documents. Mr Man is not trying to use the statutory provisions or the Operational Manual to give a meaning which the wordings of the Exclusion Clause are incapable of bearing. What Mr Man is doing is simply to set out the legal context against which the Subject Policy is to be construed.

47.Thirdly, Mr Chong seeks to distinguish the case of Phelps v Hillingdon LBC on the basis that that case does not concern personal injuries suffered by pupils, nor does it concern childcare services provided by schools. This may well be correct. However, this does not prevent the court from taking into account the fact that teachers are regarded as professionals, and hence supports D’s argument that the handling of the choking incident was an act conducted in a professional capacity.

48.Fourthly, during the hearing, this Court pointed out that in the PI Action, both the extent of P’s duty of care and the breach of such duty were disputed. Mr Chong submitted that the PI Action is irrelevant to the determination of the present dispute, because the court trying the PI Action is not required to determine whether the duties owed by P to the Pupil were professional or not.

49.Mr Chong’s submission only holds good if (1) none of the duties pleaded in §5 of the Statement of Claim filed in the PI Action can be described as a professional duty and (2) none of the acts and/or omissions pleaded in §7 therein can be said to be done in a professional capacity. For the reasons stated above, I am far from satisfied that this is the case. It would be premature for this Court to decide on whether the Exclusion Clauses apply to the facts of the present case.

50.For these reasons, I am satisfied that D has shown an arguable defence based on the Exclusion Clauses.

E3.  The Notification Clause

51.The Notification Clause of the Subject Policy imposes an obligation on P to advise D as soon as reasonably possible when a claim occurs or is likely to occur. It is common ground that P submitted the May Claim Form (which is entitled “Personal Accident Insurance Claim Form”) on 8 May 2023. The May Claim Form did not concern the Subject Policy. P only submitted the correct claim form (ie the November Claim Form) a few months later on 9 November 2023.

52.Mr Chong argues that D has no arguable defence based on the Notification Clause. His submissions are as follows: -

(1)  First, it is said that P had complied with the Notification Clause by advising D of the Incident some six to seven working days after the Incident by the following means: -

(a)  On 2 May 2023, the Principal of the Kindergarten telephoned Bernice Chan and reported the Incident.

(b)  On 8 May 2023, P submitted the May Claim Form (as provided by Bernice Chan) providing details of the Incident.

(2)  Secondly, Mr Chong also says that D had acknowledged in the 2^nd Rejection Letter that the notification in May 2023 was timely.

(3)  Thirdly, it is said that D cannot rely on the fact that P submitted a wrong form in May 2023 because the distinction between the Personal Accident Policy and the Subject Policy is a matter of “internal administration”. Mr Chong thus urges this Court to overlook the title of the claim form submitted and focus on the substance of the notification.

53.I am unable to accept Mr Chong’s submissions.

54.First, P’s arguments are at odds with the express language of the Notification Clause, which suggests that the subject matter of P’s notice is “a claim” rather than an “Accident”. This is where P’s arguments fall apart. In the “General Definitions” section of the Subject Policy, the term “Accident” is specifically defined to mean “[a]n accident or a series of accidents arising out of one event”. Notwithstanding that, the wordings of the Subject Policy did not refer to the notification of an “Accident” but that of a “claim”.

55.Secondly, P’s argument runs contrary to the purpose of a notice clause. It is common ground that the purpose of such a clause is to “enable the insurer to test the genuineness of the claim within a reasonably short time of the occurrence of the loss and to ensure that immediate steps are taken to mitigate the consequences of the loss”: MacGillivray on Insurance Law (16^th edn) at §19-042; Tin Yee Kwun v Ets-Testconsult Limited (unrep, HCPI 450/2008, 25 November 2010).

56.In order to achieve the aforementioned purpose, it is necessary for the insurer to know the contractual basis (ie under which policy) it is said to be liable to indemnify the insured.

57.It is evident that the Personal Accident Policy and the Subject Policy intend to cover different losses or liabilities. The former intends to cover losses arising from the personal injuries caused by an “Accident” (which has a limit of HK$100,000 for permanent total disablement and a limit of HK$10,000 for medical and surgical expenses per insured person), whereas the latter covers the legal compensation that P could potentially be liable for, including costs and expenses of litigation (which has a limit of HK$30,000,000).

58.D’s liability exposures under the Personal Accident Policy and the Subject Policy are evidently different. It is therefore at least arguable that the subject matter that D had to be notified of was the nature of loss or liability sustained or may be sustained by the insured which would lead to a claim under the Subject Policy.

59.In my view, it is therefore at least arguable that the notification of the Incident is not to be equated with a notification of a “claim” under the Subject Policy.

60.Thirdly, Mr Chong’s submission that the Court should look at the substance of the May Claim Form because the distinction between the Personal Accident Policy and the Subject Policy is a matter of “internal administration” should likewise be rejected:

(1)  As I have explained above, the difference in the May Claim Form and the November 2023 Claim Form is one of substance, as D’s liability exposure under the Subject Policy greatly differs from that under the Personal Accident Policy.

(2)  Furthermore, if one were to accept P’s logic, how would P even know that it had submitted the “wrong” form? Why would it be necessary for P to submit the “right” form in November 2023? It shows that at that time, P simply did not think that the May Claim Form was sufficient for the purposes of complying with the Notification Clause.

(3)  There is much to be said about the fact that P saw a need to submit an additional claim form after the July 2023 Meeting, during which the Pupil’s father indicated a potential claim against P. One possible inference to be drawn is that P then discovered that its liability might far exceed the coverage of the Personal Accident Policy, and hence the need to make an additional claim under the Subject Policy. Whether this is the proper inference to be drawn is a matter for the trial judge. Nevertheless, this shows that there is (to say the least) a triable issue and hence the case ought to proceed to trial.

61.Fourthly, whilst I accept P’s suggestion that D stated in the 2^nd Rejection Letter that “[t]he circumstances of the Incident are that ‘a claim is likely to occur’ soon after it happened”, I do not think that this alone would constitute a concession that the May Claim Form constituted timely notification. If one reads the Rejection Letters holistically, it is evident that D had all along maintained its position that P failed to comply with the notification procedure. I therefore reject P’s argument in this respect.

62.Fifthly, during his oral submissions, Mr Chong submits that P should not be blamed to have submitted a wrong claim form because the May Claim Form was sent to P by Bernice Chan. However, there is no evidence whatsoever before me as to who Bernice Chan was and whether she had any authority to act on behalf of D. Nor was there any suggestion from P that the Principal of the Kindergarten would blindly sign any form provided by Bernice Chan without first reading its contents. I am satisfied that this is an issue of fact that should be resolved at trial.

63.Accordingly, I am satisfied that D has an arguable defence based on the Notification Clause of the Subject Policy.

E4.  Summary judgment: Conclusion and appropriate orders to be made

64.For all the foregoing reasons, I am of the view that D has raised a triable defence to P’s claim. Accordingly, I refuse to grant summary judgment in favour of P.

65.In such circumstances, the Court may either dismiss §§1-3 of the Summons or grant unconditional leave to defend.

66.O14 r7 RHC provides that:-

“… if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, then, without prejudice to Order 62 and in particular to rule 4(1) thereof, the Court may dismiss the application with costs and may require the costs to be paid by him forthwith.” (emphasis added)

67.Thus, whether the court should dismiss an application for summary judgment rather than to grant unconditional leave to defend depends on whether the plaintiff had knowledge about the defendant’s arguable defence before taking out the summons.

68.The answer to this question is to be determined by considering all the circumstances of the case, including the state of the pleadings. That knowledge may also be acquired from the parties’ correspondence, even if a pleaded defence has not yet been served: Hong Kong Civil Procedure 2026 at §14/7/3.

69.Although D had not filed its defence before the Summons was first issued in October 2025, D had nevertheless stated its defence in clear terms in the Rejection Letters. Moreover, P had indisputably received D’s Defence dated 6 November 2025 by the time it issued its amended Summons in January 2026. In my view, P clearly knew that D had an arguable defence to P’s claim before issuing the Summons or the amended Summons, and yet it decided to proceed with an application for summary judgment.

70.In the circumstances, I consider it appropriate for this Court to dismiss §§1-3 of the Summons.

F.  DISCUSSION: O14A APPLICATION

71.Mr Chong submits that the questions raised in §4 of the Summons are questions concerning the construction of the Subject Policy and hence they can be determined summarily without a trial. I disagree.

72.First, the answer to question (a) depends on the nature of duty owed by P to the Pupil and/or the capacity in which P (or its employees) handled the Accident. This cannot be a simple question of law, nor is this a pure question of construction of the Subject Policy. It is a mixed question of fact and law, and the Court is at least required to take into account the following matters: -

(1)  How P and its staff/teachers actually handled the Incident?

(2)  What, if any, system or procedure was put in place by P in handling crisis such as a choking incident?

(3)  Whether P was aware of the Operational Manual and had made any effort to comply with it?

(4)  The contractual relationship (if any) between P and the Pupil.

73.Secondly, whether P advised D a claim or potential claim “as soon as reasonably possible” is a fact-sensitive question. It follows that question (b) is also not suitable for determination under O14A.

74.Thirdly, the construction of the Subject Policy is not to be conducted in a vacuum. The court must have before it the relevant factual matrix before it would be able to determine the issue of construction. As Recorder Ma SC (as he then was) noted in Rockwin at §27: -

“27. …Here, it is important to emphasise that the question of law or construction is one that is suitable for determination without a trial. In other words, the court must have all the necessary facts and matters before it in order to determine the question of law or construction. Where the court is not seized of all relevant facts, it would be an extremely rare case (if ever) in which the procedure under O 14A would be adopted. In Cable & Wireless HKT International Ltd v New World Telephone Ltd (HCCL 229/1999, 5 April 2000, Stone J, unreported), the main concern of the court was that the factual basis for the determination of the question he was invited to determine, was uncertain. On appeal, the judge’s views were upheld by the Court of Appeal. I note that this approach is entirely consistent with those passages contained in Hong Kong Civil Procedure 2001 at para 14A/2/4.” (underlining emphasis added)

75.Here, the Court does not have all the necessary facts and matters before it in order to determine the questions, such as the contractual documentation and/or other relevant materials between P and the Pupil (or his parents), the “School Crisis Management Handbook” published by it, and the facts and matters discussed in §72(1)-(4) above.

76.For all these reasons, I decline to determine the questions of construction under O14A. I would dismiss §4 of P’s Summons.

G.  DISPOSITIONS

77.For all the foregoing reasons, I dismiss P’s Summons.

78.There is no reason why costs should not follow the event. I therefore make an order nisi that the costs of and occasioned by the Summons (including the hearing before me) be paid by P to D with certificate for counsel, such costs to be taxed if not agreed. The costs order nisi shall become absolute 14 days from the date of handing down this decision.

Mr Patrick Chong, instructed by Messrs Au & Vrijmoed, for the Plaintiff

Mr James Man, instructed by Messrs Clyde & Co, for the Defendant