LI TIM WAH v. WAH YUEN LOGISTICS CO LTD (in liquidation) AND ANOTHER

HCPI 837/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 837 OF 2016

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JUDGMENT

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1.  The plaintiff was employed by the 1^st defendant as a cross‑border container lorry driver. On 24 December 2010, he slipped and fell in the course of work, suffering injuries to his back. He was awarded $666,338.52 as employee’s compensation against the 1^st defendant in 2015. This is the trial of the plaintiff’s claim against the 1^st defendant for common law damages.

2.  The 1^st defendant is in liquidation. By court order dated 18 May 2016, leave was granted for the plaintiff to proceed in this action against the 1^st defendant.

3.  The Employees Compensation Assistance Fund Board was joined as the 2^nd defendant to defend the issue of liability and quantum, as if it were the employer, by order dated 7 September 2015.

4.  The 1^st defendant has taken no part in this trial.  By a letter dated 31 October 2017, and addressed to the plaintiff’s solicitors and placed before this court, the liquidators confirm that:

“ They will be inactive in the above PI action, unless directed by the court, and we have no view on the agreed quantum mentioned.”

5.  Quantum has been agreed between the plaintiff and the 2^nd defendant at $1,820,000, and the breakdown can be found at para 37 of the plaintiff’s opening.  This trial is only concerned with liability.  The plaintiff was the only witness.  He adopted his evidence in chief, and was cross‑examined over the course of about one and a half hours.

6.  The 2^nd defendant called no witnesses, although it did rely on certain documents, notably some meteorological records.  There is no dispute as to the admissibility of such, and indeed, the plaintiff itself has also tendered certain other meteorological records.

The plaintiff’s case

7.  On 24 December 2010, he was instructed to pick up goods from Shekou, Shenzhen in China, and to transport the goods in the container lorry provided by the 1^st defendant back to Hong Kong.  While the goods were being stuffed into the container lorry, it was raining, and it was raining intermittently to such an extent that the loading of the container lorry had to stop from time to time because of the rain.  Loading the container took about an hour from 2 am to 3 am.  At about 3 am he left Shekou, and upon the direction of Ms Fan of the 1^st defendant, he was instructed to return home for the rest of the night, and to transport the container back to Hong Kong the next morning.

8.  The plaintiff therefore drove the container lorry to Longhua, where it appears that he had a home, and he slept from about 4 am until the next morning, leaving Longhua for Huanggang at about 8 am in the morning.

9.  On the way from Shekou to Longhua, it was still raining intermittently.  When he left from Longhua for Huanggang the next morning, it was not raining.

10.  At Huanggang, he was directed for inspection by the Chinese Customs, who required him to open the container for inspection. The inspection took about an hour.  After inspection finished, as he was getting into the cab of his lorry, he slipped and fell, landing on his buttocks and back, causing a fracture of his L1 vertebrae.

11.  The plaintiff says he fell because there was water in the cab, causing it to become slippery.  There was water in the cab of the lorry because the rubber seals at the door of the cab and the windshields of the cab had worn down, and water leaked into the cab and accumulated on the floor of the cab when it rained.  He had complained of the leaking door seals and window seals on numerous occasions.  But his complaints were ignored by the 1^st defendant, which did not repair or cause the seals to be repaired.

12.  Although he puts his case on different bases, including occupier’s liability, negligence and breach of contract, it all boils down to one thing, that is, the 1^st defendant was in breach of his duty towards the plaintiff by failing to ensure that the water would not leak into the cab and accumulate in the cab, causing the floor to be slippery and dangerous.

The 2^nd defendant’s case

13.  The 2^nd defendant does not dispute that the plaintiff was injured.  However, its position is that the plaintiff’s description is internally inconsistent, inherently improbable and also not consistent with objective, independent evidence.  The 2^nd defendant says that the plaintiff has not discharged its burden of proof.

14.  I shall deal firstly with the internal inconsistency.  Much was made both in cross‑examination and in the 2^nd defendant’s submissions about perceived inconsistencies and the failure of the plaintiff to raise the matter of accumulation of water at various stages, whether in his report to the ambulancemen, in relating the accident to the doctor at the North District Hospital, to the Labour Department, or even in his statement in the employee’s compensation proceedings.

15.  I will not go into the details of each and every one of those statements, and each and every one of those perceived inconsistencies.  I do not agree that there is any inconsistency or that failure of the plaintiff to mention this water accumulation to those various persons can be considered to be an inconsistency.  First of all, the matter that each of those statements or reports were addressed towards were different.  I would not expect ambulancemen to be concerned about how the plaintiff slipped and fell, all they would be concerned about is how his injuries occurred, which is that he slipped and fell.  As to how this slip and fall occurred, ambulancemen would really not be concerned about that.

16.  Similarly, in the employee’s compensation proceedings, the issue is not how the accident occurred, the issue was whether the accident occurred in the course of employment.  So I would not expect a full detailed explanation of every single matter in the witness statement for employee’s compensation proceedings.

17.  Likewise for the other matters which were raised by Mr Chan for the 2^nd defendant.  Other alleged inconsistencies were identified by Mr Chan for the 2^nd defendant, in particular as to how he slipped: whether he slipped in the cabin, on the edge of the cabin, or in different positions.  I note that the various statements upon which Mr Chan bases his criticism were drafted by others, although some of those statements contained manuscript amendments by the plaintiff himself.  However, even though the wordings of each individual statement might be slightly different, the overall impression that they gave is simply different ways of describing what is essentially the same incident, and not (if it were truly inconsistent) more akin to describing different incidents altogether.

18.  I therefore do not agree that there is any inconsistency in the description of the incident.

19.  Mr Chan, in his submissions stated that the water leakage as the cause of injury was only raised some three years and eight months after the accident.  The force of this argument was substantially deflated by the late production of a letter before action, which was addressed to the 1^st defendant, in which water leakage was mentioned.

20.  I now turn to the inherent probabilities and inconsistencies with objective evidence.  I considered what is more important is the objective evidence concerning the weather on 24 December 2010.  Evidence from the Hong Kong Observatory and the Meteorological Bureau of Shenzhen Municipality was produced.  The evidence from both Hong Kong and Shenzhen weather bureaus shows that there was no rainfall recorded in the Shenzhen Municipality from 17 to 31 December, and for Hong Kong, from 17 to 25 December.

21.  This would appear to be directly contradictory to the plaintiff’s evidence that it rained so water leaked into the cab of his lorry, causing it to be slippery, and therefore causing the plaintiff to slip and fall when he climbed onto the cab.

22.  The plaintiff attempted to explain this away by saying that we do not know how the Shenzhen Meteorological Bureau conducted its records, and further, that it can be raining in one spot and not raining in another.  Mr Fong for the plaintiff took this up in his final submissions, saying that Shekou, where rain was supposed to have happened, was some 20 kilometres away from Futian or from Lok Ma Chau, and so it is quite possible that there was rain in one place, but no rain in the other.  However, if we look at the distance, 20 kilometres is the distance which was taken by road.  If we take a straight line, it would be much shorter, and in any event, it is not that far a distance at all.

23.  Further, the evidence of the plaintiff is that it was raining sufficiently to prevent the loading of the container in Shekou. It was also raining intermittently on the way from Shekou to Longhua, which caused the accumulation of water in the cab.  I find it unlikely that if there was rain to such an extent, there would be no record of such rain, whether in Shenzhen or in Hong Kong.  There was simply no rainfall, not even a trace of rainfall recorded on 24 December.  One can see that from the records which were kept by the Hong Kong Observatory and despite the abundance of weather stations in Hong Kong, including one at Lau Fau Shan, which is only a relatively short distance away from Shekou, there was not even a trace of rainfall on 24 December.  Whereas, there was a trace of rainfall from some unspecified location in Hong Kong on 25 December.  This can be seen from the table at B1/ 465‑48.  So it seems that the objective evidence does not support, and indeed, is inconsistent with the plaintiff’s testimony.

24.  This lack of record of rainfall would also explain why there is one aspect of inconsistency which I do find between the plaintiff’s witness statements and his testimony in court.  In his witness statement, he said that there was an accumulation of water in the cab of the lorry, （“積水”）.  In his testimony, he shied away from that, and tried to downplay the amount of water in the cab.  This was after cross‑examination by Mr Chan for the 2^nd defendant, as to whether it was raining heavily or not, to which answer the plaintiff was very guarded and reserved in his testimony.  He downplayed it to the extent by saying that it was “水積/跡”, and there was some argument about what those words mean.  I take it to mean there was some attempt at providing or indicating a smaller extent of water instead of a large accumulation of water, in order to try to fit in, as far as possible, his evidence with the objective evidence from the meteorological records.

25.  One other aspect of the plaintiff’s evidence which I find also to be another inconsistency, not related to the weather or the rainfall, is the evidence about whether he grabbed or grasped the steering wheel of the cab when he was climbing up to the cab of the lorry.  In his witness statement, he described getting on to the steps, holding on to the handle provided for climbing up to the cab of the lorry, and at the end, he grabbed or grasped the steering wheel, then turned to get on the seat of the lorry and slipped and then fell.

26.  However, in his testimony, likely realising that if it was the case that he was actually holding on to a proper handhold, it would be difficult to maintain and convince the court that he would then slip and fall to land on his back.  He then, in his testimony, said he did grasp the steering wheel, but that he only pressed his hand on the steering wheel for support, saying that one could not turn if grasping the steering wheel.

27.  When it was pointed out to him that his witness statement described that he did grasp the steering wheel, he then changed to say that he initially grasped the steering wheel, but then he had to change to just press on the steering wheel because he had to turn his body.

28.  I find that this is an obvious instance of the plaintiff attempting to change his evidence to fit with the objective circumstances of the case.  I also find it difficult to accept that one needs to relinquish a handhold to get into the cab of the lorry.  I do not understand why one cannot turn one’s body while holding on to the steering wheel.

29.  All in all, I find that the plaintiff has not satisfied me, on the balance of probabilities that it was raining on the day of the accident.  Therefore, that even if there was negligence in failure of repair of the cab by the 1^st defendant, that cannot have been the cause of the accident and the plaintiff’s injuries. At the very least, the plaintiff has not satisfied me on the balance of probabilities that it was so.  While I have sympathy for the plaintiff, who did suffer from injuries, and whose employer, the 1^st defendant, has obviously acted in a very atrocious manner towards him, I am afraid that the evidence does not enable me to find liability established on the part of the 1^st defendant. Accordingly, I dismiss the plaintiff’s claim.

30.  I order that costs be to the 2^nd defendant. I make no order as to costs in respect of the 1^st defendant, who has taken no part, and has been absolutely uncooperative throughout.  The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.