LAM PAK KEUNG v. IP TSZ PING AND OTHERS

CACV 151/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 151 OF 2015

(ON APPEAL FROM HCPI 95/2013)

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REASONS FOR JUDGMENT

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Hon Cheung CJHC:

1.  At the conclusion of the hearing, we dismissed with costs the 3^rd defendant (“Lucky Guy”)’s appeal from the judgment of Anthony Chan J dated 3 June 2015, whereby judgment on liability was entered for the plaintiff against Lucky Guy in the personal injuries action below, with damages to be assessed by a master. We now give our reasons.

The facts

2.  The action involved an industrial accident.  The plaintiff was a manual labourer employed by the 2^nd defendant (“Chan”) to carry out loading and unloading work at platform no 21 of MTR Hung Hom Freight Terminal, Kowloon.  The 1^st defendant (“Ip”) was a forklift driver also employed by Chan to work at the Terminal. The Terminal was leased to Lucky Guy who carried on a logistics business there.  However, the bulk of the operations at the Terminal was subcontracted by Lucky Guy to Chan, who, according to the evidence, appeared to have little logistics business of his own, apart from that coming from Lucky Guy.  In other words, Lucky Guy was, on the evidence, Chan’s major client, as well as the sub‑lessor of the Terminal, of which he (Chan) was the sub‑lessee.

3.  The operations at the Terminal involved, amongst other things, the use of forklifts by Chan’s workmen.  The forklifts belonged to Lucky Guy and were loaned to Chan.  Chan employed full time and part time manual labourers to work at the Terminal and the plaintiff was one of the full time manual labourers employed.  Chan also employed forklift drivers to operate the forklifts and Ip was one of them.

4.  Despite the subcontracting of the operations at the Terminal by Lucky Guy to Chan, Lucky Guy maintained a significant presence at the Terminal.  According to the evidence and findings of the learned judge, Lucky Guy maintained an office at the Terminal which was manned by four employees.  The office was about 300 square feet in size and was very close to the cargo loading/unloading area.  There were CCTV cameras installed inside the Terminal and the monitors for the cameras were kept inside Lucky Guy’s office.  The work carried out by Lucky Guy’s staff at the office involved mainly dealing with their customers, possessing customers’ orders and issuing instructions to Chan’s workers, who had to carry out the loading/unloading tasks.  The judge found that Wong, the most senior member of staff stationed at the office, did a roll call every morning to ensure the punctuality of Chan’s workers.  He also found that Wong and another staff member (Ben) gave supervision and oral instructions to Chan’s workers at least once or twice a month.  Supervision or instructions were required basically in relation to priority handling of certain containers; special goods or valuable goods which required extra care; and overloading of containers.

5.  Furthermore, there is no dispute that Lucky Guy’s staff would fine Chan’s workers for lateness for work, smoking or damaging the goods; and before the workers concluded their work everyday, they would ask Lucky Guy’s staff to see if there was any more containers to work on before they could leave. Moreover, every evening Ben would be asked about the volume of work for the next day so that additional manpower could be arranged if necessary.

6.  The judge also found that from time to time, instructions were given by Lucky Guy’s staff to Chan’s workers to sweep the podium on which the loading and unloading operations were carried out, and to paint a yellow line which served to keep the outside transportation workers away from the loading/unloading operations.

7.  All this has to be viewed against the fact that Chan, employer of the manual labourers and forklift drivers, rarely turned up at the Terminal to give supervision or instructions to his employees about their work. Furthermore, there simply was no supervisor or foreman amongst those employed by Chan to work at the Terminal, to perform any supervisory, industrial safety, or other management or coordination duties.  Whilst there was a more senior employee of Chan working at the site, the evidence is that he did not perform any such role, and as the judge put it, all workers of Chan working at the Terminal were “relatively unsophisticated people” (para 32 of the judgment).  Putting aside the role played by Lucky Guy’s staff at the Terminal relating to supervising Chan’s workers’ work, these workers were simply left to carry out the loading/unloading operations at the Terminal in whatever way they saw fit.

8.  The loading, unloading and storage operations carried out at the Terminal by Chan’s workers were, as accepted by Wong and found by the judge, “dangerous” (para 44 of the judgment).  In particular, the manual labourers and forklifts were not segregated to work in different demarcated areas, something accepted to be infeasible given the physical layout of the Terminal and the way in which operations were carried out.  No traffic controller was put in place, and traffic was not otherwise regulated or controlled by anybody.  Everyone – the manual labourers and the forklift drivers – were left to do their best they could to avoid any accident between the forklifts and manual labourers.

9.  Unfortunately, such an accident did take place on 5 February 2010 at around 10:00 am. The plaintiff and his co‑worker (“Li”) were then unloading goods from a 45‑foot container near column B19 at the Terminal.  At that time, Ip was operating a forklift to transport the unloaded goods to a storage area.  In the course of the operation, Ip stopped the forklift at a distance within 2 to 3 feet from the back of the plaintiff, and alighted from it without switching off the engine.  Within a matter of seconds, the forklift unexpectedly moved forward.  The plaintiff was struck from behind by one of its raised forks which penetrated his right lower limb.  It is now six years after the accident and the plaintiff is still receiving treatment, and medical opinions are divided as to whether the amputation of his right foot is the best way forward.

10.  In the action below, neither Ip nor Chan served any defence.  Interlocutory judgment with damages to be assessed was entered against each of them in November 2013.  Unfortunately for the plaintiff, Chan is uninsured, and understandably, Ip is unlikely to have the means to pay whatever damages that may eventually be assessed in the plaintiff’s favour.  That, practically, only leaves Lucky Guy, who strenuously disputed liability in relation to the present injury to the plaintiff, an employee of its independent contractor, and thus the split trial on liability before the judge.

The judgment below

11.  As mentioned, after trial, the judge found in favour of the plaintiff on liability against Lucky Guy.  The judge preferred the evidence of the plaintiff and his co‑worker Li to the evidence of Wong and two others relating to the role played by Lucky Guy, particularly in relation to the provision of supervision and instructions to Chan’s workers at the Terminal, despite the written contract between Lucky Guy and Chan which provided that the operations at the Terminal were the sole responsibility of Chan, over which Lucky Guy had no say.

12.  As regards legal duty, the judge took the view that in light of Lucky Guy’s involvement in the operations carried out at the Terminal, in particular (a) its ability to exercise some degree of control over the workers; and (b) they were working for Lucky Guy (albeit indirectly), there was “a sufficient degree of proximity” between Lucky Guy and the plaintiff such that the former had a duty of care over the latter (para 44 of the judgment).  He also believed that the imposition of this duty of care was “just and reasonable” (para 45).  He took the view that although Lucky Guy endeavoured to subcontract the bulk of the operations and the responsibility over the workers to Chan, as a matter of fact the day‑to‑day operations at the Terminal remained under the control of Lucky Guy to a large extent.  He came to his view on duty of care after considering the Court of Final Appeal’s decision in Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14.

13.  As for breach of duty, the judge found that the accident happened as a result of a number of contributing factors :

(i) the forklift was left unattended with its engine running and, more likely than not, in gear;

(ii) it was left very close to where the plaintiff was working; and

(iii) the forks were raised.

14.  The judge took the view that the duty of care had been breached inasmuch as Lucky Guy failed to put in place one or more traffic controllers, a measure which the judge considered to be clearly feasible and the cost of which would not be disproportionate.  He accepted that the manual labourers were required to work hand in glove with the forklift drivers, and it would not be feasible or practical without crippling the efficiency of the operations to alienate the respective passageways for pedestrians/manual labourers and forklifts at the Terminal.  However, he took the view that Lucky Guy ought to have controlled the traffic at the loading/unloading area to make it safe for the workers like the plaintiff.

15.  In respect of causation, the judge adopted a common sense and pragmatic approach.  He was persuaded that the traffic controller (if one was present) would not have allowed Ip to leave his forklift unattended with an idling engine at very close proximity to the plaintiff, especially when the plaintiff was liable to be hurt by the elevated forks. More probable than not, the accident would have been avoided if a traffic controller had been put in place.

16.  The judge therefore concluded that Lucky Guy was liable for the accident.  He did not think occupiers’ liability added anything to his analysis based on a general duty of care.

Arguments on appeal

17.  Appealing against the judgment, Ms Abigail Wong, for Lucky Guy, essentially argued that the judge was wrong to impose a duty of care personally on Lucky Guy towards the plaintiff, an employee of Lucky Guy’s independent contractor.  She contended that the operations which the judge found Lucky Guy to be in control of had nothing whatsoever to do with how the plaintiff got injured.  She submitted that the proper question was not so much whether Lucky Guy was in control over those operations, but rather whether it retained “control over the negligently driven forklifts”.  Counsel contended that the whole point of the “foreseeability/proximity/fairness, justice and reasonableness test” (propounded by the Court of Final Appeal in Luen Hing Fat) was to determine whether there was a sufficient link between the accident and the role of the principal contractor/employer who expressly contracted out in order not to be liable.  In particular, it does not follow that just because Lucky Guy could be said to have retained control over certain loading/unloading operations that it also retained or possibly had any control over how forklift drivers went about steering and operating the forklifts.  She argued that the issue in question was driven by the role of the principal contractor/employer in the accident, and not its role vis‑à‑vis the plaintiff.  Counsel drew a distinction between Lucky Guy’s role of control and supervision over the manual labourers and that over the forklift drivers; in relation to the latter, counsel submitted, Lucky Guy exercised little if any control over their work.

18.  Counsel also argued that the judge was wrong in relation to causation.  In essence, counsel contended that the evidence was lacking or insufficient to say that if the forklift had not been left unattended with its engine running, in gear and close to the plaintiff, or that a traffic controller had been put in place, the accident would not have happened.  Matters such as the distance in terms of force of impact (and hence gravity of injury, or the possibility of no injury), or any likelihood that a greater distance between the forklift and the plaintiff meant a larger chance that the forklift would have been stopped, or could have stopped or whether some workman other than the plaintiff would have got hit, were not considered by the judge. Counsel pointed out the judge himself said the forklift had “unexpectedly moved forward” (para 4 of the judgment), thus suggesting it was highly unlikely that a traffic controller could have prevented this from happening even if there was one.  Counsel also postulated that the forklift, which the judge himself found was in forward gear, “could have been initially stopped at a safer distance away and still it could have travelled that greater distance and collided with [the plaintiff]”.  She concluded that the only effective cause of the accident was Ip’s failure to ensure that the forklift did not move (ie by switching off the engine and/or switching to neutral gear).

19.  Counsel also criticised the judge’s finding that the danger in question could be “effectively mitigated by having the truck traffic properly controlled” (paragraph 50 of the judgment). She argued that the finding was based on speculation on a number of factual circumstances which the judge had no evidential basis to draw: (a) that putting in place one or more traffic controllers was clearly feasible; (b) that the cost of which would not be disproportionate; (c) that the controller would not have allowed Ip to leave his forklift unattended with an idling engine at very close proximity to the plaintiff; and (d) that if Lucky Guy had put in place someone to control the traffic, it is more probable than not that the accident would have been avoided.  She also pointed out the judge found that there was “no evidence that there was a high level of accident caused by the collision between truck and labourer” (para 50 of the judgment).

20.  Counsel also complained that the “failure to control traffic” plea of negligence had not been sufficiently and clearly pleaded, and was only seized upon at a late stage at the trial below, and it was therefore unfair to her lay client.  Had it been otherwise, counsel submitted, Lucky Guy’s case would have been presented very differently and rebuttal evidence would have been called in relation to photographs of and to‑scale drawings of the Terminal; where the loading and unloading of containers would occur and where the manual labourers and forklift drivers would work; how busy the Terminal could get and the traffic volume of people and transportation workers operating their vehicles; whether traffic controllers were customarily employed in warehouses such as the Terminal; where such a traffic controller could possibly be situated if one was employed; what the traffic controller could feasibly be expected to do in order to improve safety and avoid accidents; whether and what rules of conduct would be issued to all visitors of the Terminal so as to facilitate the work of the traffic controller; and the cost of employing such a traffic controller and what sort of qualifications and training were needed.

21.  Finally, Ms Wong complained that the judge failed to adequately deal with the implications of the plaintiff’s admission that the manual labourers at the Terminal went about their own business without requiring instructions from anyone.  She argued that the implications were a significant one because they ran wholly counter to the plaintiff’s case on the control issue.  It was incumbent upon the judge to deal with the contradictions in evidence, but he did not do so.

Duty of care – the law

22.  As regards duty of care, the present case is not concerned with Lucky Guy’s vicarious liability (if any) for the tort of Chan, who was obviously liable for the injury to the plaintiff, but in relation to Lucky Guy’s own liability in negligence towards the plaintiff. The leading local authority in this area is no doubt the Court of Final Appeal’s decision in Luen Hing Fat, which essentially adopted the approach of the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605, as explained by Sir Donald Nicholls VC (as he then was) in the Court of Appeal in White v Jones [1995] 2 AC 207.  In other words, there are three headings to consider, namely, “foreseeability”, “proximity or neighbourbood” and “the requirements of fairness, justice and reasonableness”.  As regards the second and third headings, there is no real demarcation line between them.  They shade into each other.  Both involve value judgments.  These two headings are no more than two labels under which the court examines the pros and cons of imposing liability in negligence in a particular type of case: White v Jones, at p 221F‑G, quoted by Bokhary PJ in Luen Hing Fat, para 28.  Bokhary PJ also mentioned Lord Walker’s judgment in Customs and Excise Commissioners v Barclays Bank Plc [2007] 1 AC 181, 209G, where his Lordship observed that “the elements of the threefold test are labels” and that “their usefulness is limited”, and that labels “help steer the mind through the task in hand”: Luen Hing Fat, para 29.

23.  In the following paragraph, Bokhary PJ said:

“ Ultimately it is necessary to stand back and take a holistic view of foreseeability, proximity and the need to be satisfied that it would be fair, just and reasonable to impose a duty of care. In Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211, 235E‑G Lord Steyn endorsed the statement in the Court of Appeal by Saville LJ (as Lord Saville of Newdigate then was) that ‘these three matters overlap with each other and are really facets of the same thing’. The relationship between proximity and what is just and reasonable was addressed in the Supreme Court of Canada by McLachlin J (as McLachlin CJ then was) in Canadian National Railway v Norsk Pacific Steamship Co [1992] 1 SCR 1021. At p.1152 she said that ‘the concept of proximity may be seen as an umbrella, covering a number of disparate circumstances in which the relationship between the parties is so close that it is just and reasonable to permit recovery in tort.’ ”

Duty of care – the present case

24.  Turning to the facts of the present case, it is plain that the harm in question was foreseeable.  Manual labourers and forklift drivers were working at the same place at the same time doing different jobs.  There was nobody to coordinate their work, no one to supervise the operations, and there was no one tasked with the responsibility of work safety and in particular, safety issues arising from the use of forklifts at the Terminal in close proximity with the manual labourers, when there was (as it was not feasible) no segregation between forklifts and manual labourers.  In fact, as the evidence suggests, everybody just went about their own work in the best way they could.  The risk of a manual labourer being injured by one of the forklifts during operation was reasonably foreseeable and in fact obvious.  The judge, quite rightly, called the operations “dangerous” (para 44 of the judgment).

25.  As for proximity, the plaintiff worked within a close physical proximity of Lucky Guy’s office.  He was injured by one of the forklifts loaned by Lucky Guy to Chan, his employer.  Moreover, as the judge rightly found, Lucky Guy obviously through its staff stationed at the office exercised a substantial degree of control over the operations at the Terminal as well as the employees of Chan.  As mentioned, the staff would impose fines on the workers by making deductions on the wages directly if they were found to be late, smoking or if they had damaged the goods.  The workers would then ask for leniency by speaking directly to Lucky Guy’s staff.  Before they could leave the Terminal and go home at the end of each day, they had to check with the staff first if any more work had to be done before they could go, and the staff would also inform the workers the volume of work for the following day so that the appropriate manpower could be arranged.  Also, as found by the judge, supervision and instructions were provided from time to time by the staff of Lucky Guy to Chan’s workers.

26.  Ms Wong argued, as regards the question of control, that the judge had focused on the wrong issue.  She submitted, effectively, that when considering control and proximity, one should focus on Ip’s negligent driving of the forklift, that is, by leaving the forklift unattended with its engine idling and in gear, in relation to which Lucky Guy had no control.  In other words, she invited the court to focus on the immediate cause of the accident.

27.  With respect, I disagree with this approach.  When considering the question of proximity in the present context, one should step back and take a more global/macro view of the situation.  The reality is that unlike a typical employer/independent contractor type of situation where the former, after retaining the latter to do a particular job, would simply disappear from the scene leaving the latter to complete the job, Lucky Guy maintained a significant presence at the Terminal regarding the cargo operations.  Lucky Guy through its staff obviously exercised control over many matters, big or small, regarding the workers and the operations.  What is important is not whether at the time of the accident, Lucky Guy was controlling how the forklift driver drove his forklift.  What is important, rather, is that Lucky Guy was in a position to control how forklifts should be used or driven, or, in other words, the traffic at the Terminal, or to require Chan or his workmen to do so.  This is something that can be reasonably inferred from the matters over which Lucky Guy actually exercised control at the Terminal.

28.  As regards whether it is fair, just and reasonable to hold that Lucky Guy had a duty of care towards the plaintiff, it should be repeated that the forklifts were loaned by Lucky Guy to Chan for his workmen’s use.  Furthermore, given the presence of the staff manning the office and their role in the operations, there is and can be no dispute they knew (or, put at the lowest, ought to have known) that there was nobody from Chan’s side to direct the traffic, to supervise the workmen’s work or to coordinate the work of the drivers and the manual labourers, or to be responsible for work safety.  Chan himself rarely turned up at the Terminal.  The workmen just did their own work in whatever way they saw fit.  What one finds here is, obviously, an unsafe system of work – particularly in relation to the lack of any supervision or control over work safety, including in particular forklift traffic.  The present case is not unlike the situation faced by the Court of Final Appeal in Luen Hing Fat, where the pallet jacks and bearing trolleys in question were supplied by the factory operator to the independent contractor for its workmen’s use, under a system of work which the factory operator knew or ought to have known to have been unsafe (para 41).  And this distinguishes the present case from cases like Ng Tat Kuen v Tam Che Fu, HCPI 986/2013, 26 October 2015, To J, where there was no evidence to show that the employer of the independent contractor (or the employer’s staff) had knowledge that the equipment provided by the former to the latter would be used in a dangerous manner (para 37).

29.  In Luen Hing Fat, paras 42 and 43, the Court of Final Appeal pointed out that in relation to the question of fairness, justice and reasonableness in that case, the danger involved was to life and limb.  The court observed that the fact of personal safety being at stake is always significant.  This is an area in which legal policy is involved, and there can be no doubt that the policy considerations in favour of personal safety are naturally very powerful.  This is particularly so where the person is in a vulnerable position, who has no reasonably available means of protecting himself, and thus at a disadvantage.  These observations apply equally to the present case, where the plaintiff was just one of the manual labourers employed to work at the Terminal.  He had no say regarding how the different works of the manual labourers and forklift drivers were to be coordinated.  He did not play any supervisory role and, apparently, it was not for him to say anything regarding supervision or safety.  If anything, the evidence suggests that everybody just carried on with their work in whatever way they saw fit.

30.  Finally, I would come back to this question of Lucky Guy lending the forklifts to Chan to carry out the operations.  As agreed by Wong at trial (para 44 of the judgment), the operations at the Terminal were indeed “dangerous” in relation to forklift traffic, particularly when it was not feasible to segregate the forklifts from the manual labourers for operational reasons.  In my view, this made the requirement for proper supervision and traffic control even more urgent.  Yet to the knowledge of Lucky Guy, the independent contractor did nothing in this regard.  All this notwithstanding, Lucky Guy loaned or continued to loan the forklifts to Chan for use at the Terminal.  Like Luen Hing Fat (paras 44 to 46), this is not a case of pure omission.  Lucky Guy had taken a positive part, thus assuming a positive role, in the creation or continuation of the danger, doing so by lending the forklifts which it knew or ought reasonably to have known would be used by Chan to carry out the cargo operations under an unsafe system of work – that is, lack of supervision and coordination, and lack of traffic control.

31.  Of course, as mentioned, these three headings that I have just considered are no more than guides or labels or reminders to provide the court with a structured approach to the question of whether a duty of care should be imposed, exceptionally, on Lucky Guy towards the plaintiff, an employee of its independent contractor.  One must adopt a holistic approach.  Taking a step back, this case is very different from a typical employer/independent contractor case, in the sense that the employer (Lucky Guy) remained very much in control, the risk of harm was reasonably foreseeable if not obvious, the employer was, to its own knowledge, partly responsible for the creation or continuation of the dangerous/negligent situation, and it is simply just, fair and reasonable to impose a duty of care on the employer’s part.

Breach of duty

32.  As regards breach, I have no doubt the judge was right in finding that the duty of care was breached by Lucky Guy in failing to put in place one or more traffic controllers, or otherwise to control forklift traffic at the Terminal, or to require or cause Chan to do so.  I reject Ms Wong’s argument that lack of traffic control was something which came out of the blue and her lay client’s position was compromised. The allegation of lack of traffic control was pleaded from day one in the pleadings (paragraph 11(c) of the statement of claim).  Lucky Guy did not see fit to ask for further particulars to tie down the plaintiff, and cannot now complain that no details were supplied or the allegation was too wide or vague.  In any event, given the very simple and straight forward factual setting involved in the present case, the allegation was and is simple enough to understand, and there could be no confusion as to what the plaintiff was actually trying to say.

33.  The point was relied on at trial and certainly it was never abandoned.  In fact, on the first day of trial, Ms Wong made a comment about the vagueness of paragraph 11(c) of the statement of claim when the attention of the court was drawn specifically to that subparagraph by Ms Tjia (acting for the plaintiff below and before us) when opening the plaintiff’s case, and the judge did not find any substance in the complaint of vagueness.

34.  As to the many matters that Ms Wong now says (without evidential support) her lay client would have wanted to raise at trial in defence of the allegation of lack of traffic control if it had known the plaintiff’s true case earlier, they were matters which, in my view, Lucky Guy ought to have raised by way of evidence at trial in light of paragraph 11(c).  At the hearing of the appeal, Ms Wong was asked to give some hypothetical examples as to why, for instance, it would be difficult or infeasible to hire a traffic controller at the site (one of those matters now mentioned by Ms Wong), and she could not give any answer (even hypothetically).  This illustrates the point put to Ms Wong at the hearing that the allegation of the plaintiff, on the facts of the present case, was very straight forward.  If there were any peculiar circumstances or facts known to Lucky Guy which would make the allegation of traffic control infeasible, certainly the evidential burden was on Lucky Guy to bring them forward so that the matter could be properly dealt with.  That was not done.  Even at the hearing of the appeal, the court was not told why it was suggested, for instance, that it would not be feasible to hire a traffic controller to work at the site, or such a traffic controller could not provide effective control of the traffic.

35.  The fact that there was never any similar accident before is certainly a factor to properly to be taken into account in Lucky Guy’s favour.  However, it is a rather limited factor; the ultimate question remains whether the system of work was unsafe in that there was no traffic control put in place: Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371, paras 34‑36.

Causation

36.  Regarding causation, Ms Wong’s argument essentially boiled down to one point, that is, one can never be sure that even if there were a traffic controller employed, and even if the forklift had been stopped further away from the plaintiff, the accident would not have happened.  Or at least, she also argued, the judge did not give thought to any of these matters.

37.  With respect, I disagree.  As Ms Tjia submitted, causation in civil cases is not a “rocket science”; one must be practical and adopt a common sense approach: Ocean Tramping Co Ltd v Lee Kin‑kai [1991] 2 HKLR 232, 236B‑F.  After all, the burden of proof is just on the balance of probabilities.  Common sense would dictate that if there had been a traffic controller employed, and if proper supervision and instructions were given, and if Ip did not or was not permitted to stop or leave unattended his forklift at such a close distance behind the back of the plaintiff with its engine idling and in gear, the accident would, more probable than not, not have happened.

38.  In fact, it was obviously dangerous and negligent to leave the idling forklift unattended, with its forks raised, at such a close distance from the plaintiff who was working with his back towards the forklift.  Even if the forklift had not moved forward by itself, the plaintiff could have stepped backward in the course of his work and hit the raised forks.  If traffic control had been properly put in place, such a situation should not have been allowed to happen.

39.  Indeed one of the jobs of a traffic controller would be to protect workers from reasonably foreseeable injury occurring “as a result of human fallibility, lapse in attention, inadvertence, aberrations, and … an ill‑judged decision, taken on the spur of the moment … without properly appreciating the severity of the risk involved in the action taken to do so”: Bushra Bibi v Method Building & Engineering Works Limited, HCPI 301/2012, 8 April 2014, Bharwaney J, para 21.

40.  If there were put in place a traffic controller, the traffic controller would have warned the manual labourers of the approach or the presence of the forklift, and could also have warned the driver against leaving his forklift unattended with the engine idling or in gear.  The traffic controller could also have a say on how close a forklift need to be to the manual labourers in order to carry out the operations effectively and efficiently.  There would be all sorts of things that could be done.  In any event, even if, which is not the case here, a plaintiff was unable to propose an acceptable alternative system, in a case where he complained about an unsafe system of work, the court is by no means precluded from nevertheless finding the employer/defendant in breach of its obligation: Wong Sau Laiat para 31.

41.  In a desperate attempt to advance her appeal, Ms Wong suggested at the hearing that somehow the chain of causation had been broken by Ip’s negligence as an intervening event.  With respect, the suggestion had no merits, and in any event it was not pleaded and not open to Ms Wong.

The evidence

42.  Finally, as regards the evidence that the judge is said not to have dealt with, the short answer is that the so‑called admissions relied on by Ms Wong were, if anything, matters against her case.  The admissions by the workers of Chan that everybody just carried out their work at the Terminal “automatically” (that is, without needing any instructions from anyone) simply highlighted the lack of supervision, coordination and control over the way the manual labourers and drivers went about doing their work, which is precisely the point that both the court below and this court have considered to be unacceptable.

43.  I therefore reject this last ground of appeal.

Disposition

44.  For all these reasons, the appeal was dismissed with costs.  We also ordered legal aid taxation of the plaintiff’s own costs of this appeal.

Hon Cheung JA:

45.  I agree with the Reasons for Judgment of the Chief Judge.

Hon Chu JA:

46.  I agree with the judgment of the Chief Judge.