CHAN CHO TAK v. NG SHING LEUNG AND ANOTHER

HCPI 491/2015

[2018] HKCFI 1284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 491 OF 2015

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JUDGMENT

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Introduction

1.  Mr Chan brought this action to claim damages against Mr Ng and Haobang International Logistics Company Limited (“Haobang”) for the personal injuries he sustained after a forklift truck (“the Truck”) driven by Mr Ng, an alleged employee of Haobang, crashed into Mr Chan inside a car park located in Kwai Chung, New Territories (“the Car Park”) on 31 July 2012.

2.  Mr Ng has not taken any part in these proceedings and interlocutory judgment on liability was entered against him on 29 February 2016 with damages to be assessed.

3.  Shortly before the trial, Haobang ceased to have legal representation. It has made no application for leave to be represented by one of its director pursuant to O.5 r.6 (3), Rules of the High Court. This court can only treat it as absent though it sent a representative to attend the trial. The upshot is that the only live evidence came from Mr Chan.

Mr Chan’s pleaded case and evidence (on liability)

4.  Mr Chan was born in 1977 and at the time of the accident he was 35 years old. At the material time, he was a self-employed logistic worker making on average HK$19,600 per month. 

5.  At the time of the accident, Mr Chan was working in the goods storage area at the Car Park. He was locating his assigned freight for further delivery. On the other hand, Mr Ng was reversing the Truck towards Mr Chan. 

6.  The Truck first clashed into Mr Chan and caused him to fall forward onto the freight in front of him. It continued to move backward and its left rear tire rolled over Mr Chan’s right foot. As a result, Mr Chan sustained foot injuries.

7.  In his witness statement, Mr Chan gave a fuller picture of the accident. It was between 12:00 pm to 1:00 pm on the material day that he was present at the Car Park with his van parked in the parking area. He was looking for his freight which he was entrusted by a company named “豪邦國際物流有限公司” (“the Company”) to obtain for further delivery.

8.  Mr Chan first went to the office to finish some paper work for the purpose of the retrieval of the freight. He then obtained some delivery orders and walked out of the office to locate his freight. The office was about ten feet away from the goods storage area. When he bent forward to check the information of the freight in front of him, the Truck hit his right waist from behind. He lost his balance and fell forward towards the freight. The Truck continued to reverse and Mr Chan saw its left rear wheel rolling over his right foot. It stopped after reversing about 2 feet more.

9.  Mr Ng was aware of the accident and alighted to check the condition of Mr Chan. Other staff members of the Company came up to Mr Chan. They took Mr Chan to the office. About 15 minutes later, the boss of the Company took Mr Chan to Princess Margaret Hospital (“PMH”).

10.  A certificate of trial issued by Tsuen Wan Magistrates’ Courts dated 10 September 2014 evidences the prosecution and subsequent conviction of Mr Ng of the offence of careless driving connected with the accident. Mr Ng was fined HK$900 on 12 March 2013 as a consequence.

11.  At trial, in addition to his adoption of his witness statement as his evidence, Mr Chan told this court that prior to the accident he had worked in the same area at the Car Park for 9 months and about 4 times a week. He had seen no warning sign. He noticed that there were always other delivery workers working there undertaking similar tasks.

12.  Given the non-attendance of the defendants, it goes without saying that the evidence of Mr Chan is unchallenged. Absent any inherent improbabilities, his evidence, in my view, should be accepted in its entirety. I am satisfied that the accident happened in the manner narrated by Mr Chan.

Defence (on liability)

13.  In light of the interlocutory judgment against Mr Ng, I only need to consider the issue of liability of Haobang. Mr Chan’s claim against Haobang is made on the basis of vicarious liability. Mr Chan contends that Haobang is vicariously liable for the negligence of Mr Ng by reason of his being the registered owner of the Truck and/or his employer. The defence filed by Haobang disputes liability on the basis that Mr Ng was merely a self-employed independent contractor and not its employee. In this regard, it relies on a contract signed between Mr Ng and it dated 13 July 2012 (“the Contract”).  Further, it contends that if Mr Ng was its employee, his action was outside the scope of his employment.

14.  Lastly, Haobang also alleges contributory negligence on the part of Mr Chan. In the Defence, the following averments are made to support the plea of contributory negligence:

(1)   failing to proper lookout;

(2)   failing to pay any appropriate and sufficient attention to the traffic condition of the Car Park, other vehicles or road users or of the surrounding traffic;

(3)   failing to take any appropriate action to avoid collision with the Truck; and/or

(4)   failing in all circumstances to take reasonable care of his own safety and/or necessary precautions to prevent the accident.

Analysis

15.  On the evidence, on the balance of probabilities, I am convinced that Mr Ng was an employee of Haobang acting within the scope of his employment at the time of the accident for the following reasons:

(1)   Mr Ng gave a witness statement to the police dated 21 August 2012. There, he referred to Haobang as his company and he maintained that after he joined the company, he did not check the insurance policy of the Truck.

(2)   In a witness statement given to the police dated 10 September 2012, one Mr Mak who was the manager of Haobang admitted that Mr Ng was an employee of Haobang and that he was assigned the job of driving the Truck within the goods storage area. Mr Mak even did not find it necessary to explain why he had made such a statement to the police to the detriment of Haobang in his witness statement.

(3)   Mr Ng agreed to the brief facts written in the Chinese language and it was on that basis that his guilty plea was accepted. In the brief facts, it is clearly stated that Mr Ng was the employee of Haobang being responsible for controlling the Truck at the material time.

(4)   As highlighted to this court by Mr Lin, counsel for Mr Chan, the provisions in the Contract regarding the monthly salary, the MPF payment, the duties and statutory holidays of Mr Ng strongly point to the conclusion that Mr Ng was indeed the employee of Haobang.

16.  In the premises, I accept the case of Mr Chan that Haobang should be vicariously liable for the negligence of Mr Ng.

17.  In addition, I accept Mr Lin’s submission that by reason of the fact that Mr Ng was driving the Truck undertaking the transportation of the goods as an agent of Haobang on its behalf in the course of its business, Haobang should be vicariously liable for the tort committed by Mr Ng: Cox v Ministry of Justice [2016] 2 WLR 806, applied in Mohamud v WM Morrison Supermarkets plc [2016] 2 WLR 821 and Talat Zahid v Cheung Fat Metal Trading Co Ltd, unreported, HCPI 399 of 2012, 26.6.2017.

18.  I should add that there is no evidence that Haobang was the registered owner of the Truck. According to the witness statement of Mr Mak, the Truck did belong to Haobang but it had not been registered with the Transport Department at all. I do not think that this bears any relevance anyway.

19.  Now I turn to the allegation of contributory negligence. It is trite that the burden of proof rests on the defendants. There is simply no evidence to support the pleaded allegations, which actually sound quite empty. It was perfectly reasonable for Mr Chan to work in the area facing the freight without taking note of the traffic behind his back. He could not be faulted for not being aware of the Truck reversing towards him. I cannot find any contributory negligence in the circumstances.

20.  In conclusion, I find Haobang to be vicariously liable for the negligence of Mr Ng and it should be jointly and severally liable to pay Mr Chan damages for the personal injuries sustained by him as a result of the accident.

Quantum

21.  Shortly after the accident, Mr Chan was admitted to the Accident & Emergency Department of PMH. X-ray examinations confirm that there was no fracture on his right foot and right ankle. His right foot was however swollen with abrasion, contusion and tenderness. Mr Chan was further admitted to the Department of Orthopaedics & Traumatology (“O & T”) of PMH and hospitalised for 7 days until 6 August 2012.

22.  On 24 August 2012, Mr Chan was referred to the O & T for follow-up treatment and altogether he attended 11 sessions. On his last session on 29 December 2015, Mr Chan still felt residual pain over right foot with numbness over lateral dorsal aspect.

23.  Thereafter, from 2 September 2012 onwards, Mr Chan attended a rigourous course of physical therapy consisting of 19 sessions in the Department of Physiotherapy of Prince of Wales Hospital (“PWH”).

24.  Mr Chan also undertook occupational therapy at the Occupational Therapy Department of PWH up to 31 May 2013.

25.  From 21 August 2014 to 23 July 2015, Mr Chan sought medical treatment from Lek Yuen General Out-patient Clinic.

26.  Mr Chan further medical treatment from some Chinese Medicine practitioners.

27.  Mr Chan was granted sick leave from 31 July 2012 to 3 June 2013 and intermittently from 17 December 2013 to 2 July 2016. 

Medical reports

28.  Mr Lin draws my attention to the joint medical report dated 6 October 2016 prepared by Dr Fu and Dr Lie. The two experts examined Mr Chan on 19 August 2016. Their major findings are as follows:

(1)   There is no evidence of pre-existing pathology. It was a crush injury of Mr Chan’s right foot.

(2)   Mr Chan has received appropriate treatment and he does not require further treatment except symptomatic one.

(3)   Both experts believe the prognosis of Mr Chan is good. Dr Fu opines that his current impairments will persist and will have some difficulties in long period of standing and walking. Dr Lie opines that Mr Chan should have no significant problem during daily activities at work except when he needs to do prolonged walking or standing for more than an hour.

(4)   Dr Fu concludes that in light of the assessment of Mr Chan by the occupational therapists, his work capacity could not match his job demand. He could no longer undertake those jobs which requires heavy manual lifting. His current job as a packing worker befits him. On the other hand, Dr Lie opines that whilst Mr Chan may not be able to resume his delivery job, Mr Chan should be able to resume work which does not require prolonged standing or walking for more than an hour.

(5)   Dr Fu endorses the sick leave obtained by Mr Chan whereas Dr Lie opines that the sick leave was unnecessarily prolonged.  Dr Lie believes that the sick leave to 4 June 2013 should be adequate when Mr Chan’s had in the opinion of O & T obtained maximum medical improvement and fit for Medical Assessments Board assessment (MAB).

(6)   Both experts believe that Mr Chan should be independent in his daily activities and does not need to be assessed by specialists.

Pain, Suffering and Loss of Amenities (“PSLA”)

29.  On the evidence, I opine that the foot injury of Mr Chan was not a serious one. There was no fracture and the prognosis is good. I accept that Mr Chan would suffer pain due to prolonged walking and standing for more than an hour. He does not have any long-term disabilities and I am not convinced of his residual pain, either.

30.  Mr Lin reminds this court that Bharwaney J in Wong Man Kin v Golden Wheel (C& HK) Transportation Company Limited, unreported, HCPI 913/2011, 17.7.2015 made it clear that the starting point of PSLA awards for the Serious Injury category should be increased to HK$510,000. He further refers to Hung Sau Fung v Lai Ping Wai, unreported, HCPI 204/2009, 7 October 2011 and Lam Tuen Ming v Perfect Logistics (HK) Limited, unreported, HCPI 200/2011, 12.3.2013. He submits that the appropriate amount recoverable under this head should be in the region of HK$280,000.

31.  In view of the foregoing reasons, I shall award damages for PSLA in the sum of HK$250,000.

Loss of earnings

32.  I accept the expert evidence that Mr Chan cannot return to his pre-accident job and can only undertake less physically demanding jobs. I prefer Dr Lie’s evidence and agree with him that the sick leave after 4 June 2013 is not necessary. I cannot accept that the unemployment of Mr Chan from then to October 2013 was due to his injury.

33.  The unchallenged evidence relating to the post-accident employment history of Mr Chan including his income is helpfully set out in the skeleton submissions of Mr Lin. From 7 October 2013 to 24 November 2013, Mr Chan was employed as a full-time general staff by UA Cinema Circuit Ltd with an average monthly salary of HK$6,982.67. Allegedly, he could not cope with the long hours of his work due to his foot injury and so he resigned to on 24 November 2013.

34.  He was unable to find a job from 25 November 2013 to 20 December 2013. From 21 December 2013 to the end of August 2014, Mr Chan was employed as a car park attendant under Wilson Parking (Holdings) Limited with a monthly income of HK$9,300 on average. From 22 September 2014 onwards, Mr Chan has been employed as an internal office worker under Regal Prosthesis Limited with monthly income of HK$10,000.00.

35.  Mr Chan was, and still is, 40 at the time of the trial. I accept Mr Lin’s submission that the applicable multiplier should be 18.26% with an allowance for projected mortality and a net rate of return of 2.5% in light of Chan Pak Ting v Chan Chi Kuen [2013] 2 HKLRD 1.

36.  For the pre-trial loss of earnings, I only allow the sick leave from 30 July 2012 to 4 June 2013. I expect Mr Chan could have found a job no later than 19 July 2013. I believe that he should have made at least HK$10,000 per month with a less physically demanding job thereafter. Thus, the pre-trial loss of earnings with deduction of the actual income obtained by Mr Chan should be as follows:

HK$(19,600 x 11.7) + ((19,600 – 10,000) x 56)) – (6,983 x 1.5) – (9,300 x 8.5) – (10,000 x 26)

= HK$(229,320 + 537,600 – 10,475 – 79,050 – 260,000)

= HK$417,395.

37.  To that must be added pre-trial loss of MPF equivalent to 5%: HK$417,395.5 x 5% = HK$20,870.

38.  The pleaded case of Mr Chan of his future loss of earnings is based on the contention that he would not earn more than HK$12,000 in the future. Thus, he claims HK$7,600 x 12 months x 18.26 = HK$1,665,312.

39.  I accept this sum to be his loss of future earnings and award him this sum as damages under this head. I also allow an addition sum of 5% on the said sum as his loss of MPF.

Loss of earning capacity

40.  In his pleading, Mr Chan claims HK$150,000 for his loss of earning capacity. He claims that he suffers disabilities and recurrent pain and hence he is disadvantaged in the labour market.

41.  Mr Lin refers to Wong Man Kin and submits that an award of HK$100,000 is justified.

42.  On the evidence, I am not fully convinced that Mr Chan has any significant disabilities and residual problems. I could only allow HK$90,000 representing 9 months of his current earnings.

Special damages

43.  Mr Chan claims HK$8,981 as his medical expenses, HK$4,000 as his travelling expenses and HK$5,000 as tonic food expenses in his pleading. 

44.  I can accept his medical expenses and travelling expenses in full. As regards his alleged expenses for tonic food, absent any proof of such expenses actually incurred and any evidence that such tonic food was conducive to his recovery, I can only allow a modest sum of HK$2,000.

45.  In total, I allow a sum of HK$14,981 as special damages.  

Interest

46.  Mr Chan is entitled to interest at 2% per annum on the general damages assessed from the date of the service of the writ to the date of this judgment, and interest on the pre-trial loss of earnings and special damages assessed from the date of the accident to the date of this judgment at half judgment rate.

Conclusion and order

47.  To conclude, I find both Mr Ng and Haobang to be jointly and severally liable for the loss and damages of Mr Chan and judgment should be entered against the latter as well. There is no contributory negligence on the part of Mr Chan.

48.  In summary, Mr Chan is entitled to the following with interest:

	HK$
PSLA	250,000
Pre-trial loss of earnings and MPF	417,395 20,870
Future loss of earnings and MPF	1,665,312 83,266
Loss of earning capacity	90,000
Special damages	14,981
Total:	2,541,824

49.  There is no reason why costs should not follow the event. I make an order nisi that Mr Ng and Haobang do pay Mr Chan’s costs of this action including all costs previously reserved, to be taxed if not agreed. If applicable, I also order that Mr Chan’s own costs is to be taxed in accordance with the Legal Aid Regulations.

50.  Lastly, I thank Mr Lin for his fair and succinct submission.