WONG LOK KEUNG v. DISCOVERY BAY TRANSPORTATION SERVICES LTD

DCPI 518/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 518 OF 2004

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JUDGMENT

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Facts

1.  The Plaintiff was employed by the Defendant as a pier attendant at Central (Discovery Bay) Pier.  On 4/5/02 at about 11 a.m. the Plaintiff was standing on the metal plate attached to the bitt for mooring.  The edge of the plate was about 2 cm above the ground.  The Plaintiff intended to help his colleague who pushed a metal trolley along the gangway, as he stepped forward he lost his footing at the edge of the metal plate and fell.  As a result he sprained his right heel and ankle.

The Plaintiff’s claim

2.  The Plaintiff now claims against the Defendant for negligence particulars of which are set out at para. 5 of the Statement of Claim.  The Plaintiff further allege that the Defendant has a duty to take all reasonable precautions for the safety of its employees at work and not to expose them to risk of injury and to provide and maintain a safe place of work.

Defence

3.  The Defendant denied being negligent, having breached common duty of care nor in breach for having failed to provide a safe place of work for its employees.

History of the Pier

4.  The Defendant Company leased the pier from Star Ferry Co. Ltd.  The metal plate in which the Plaintiff tripped had been erected and placed there long before the Defendant tripped.  It was not something the Defendant erected after taking over from Star Ferry.

The Plaintiff’s evidence

5.  The Plaintiff was born in 1961.  He was first employed by the Defendant on 31/7/01 as a pier attendant.  He was assigned to work at the Central Pier.  His job included the operation of the control penal to adjust the level of the gangway, assist the mooring of ferry, assist and control flow of passengers, selling tickets and any odd jobs he was assigned to do.  His monthly salary was $7,900 with cash bonus form the sale of soft drinks averaging $2,000 – 2,500 p.m.

6.  On 4/5/02 at about 11 a.m. he was on duty at the pier in Central.  He stood near the control penal as shown in the photos to adjust the level of the gangway.  He saw his colleague Tsui Po pushing a metal trolley along the gangway.  He intended to go to help.  As he intended to walk from the pontoon to the gangway, he tripped and lost his footing because of the raised edge of the metal plate.  He fell and sprained his right heel and ankle.

Liability

7.  It is not in dispute that the Plaintiff fell and was injured.  It matters not how he fell.  The only issue is whether the Defendant had been negligent and that it had been in breach of its duty of care.

8.  In James v. Vanxhall Motors Ltd. [1955] 1 Lloyd’s Rep. 152 at 153 per Stable J. “Negligence does not mean just mishap or inadvertence; it means the existence of a legal duty, an obligation from one person to another, a failure to discharge that duty and resulting injury and damage.  His duty is to exercise reasonable precaution to ensure the safety and welfare of the people doing the work.  The precautions that he has to take are, of course, to some extent measured by the incident of the risk, and the incident of the risk may fall really under two categories: (1) the numerical chance of the things happening at all; and (2) the gravity of the result if a thing does happen.”

9.  The metal plate in question is about 2 cm above the platform.  It has been in existence since the pier was constructed in 1993.  Day in and day out it had been stepped on by pier assistants when ferries moor at regular intervals.  It is not something which they are unaware of.  There is no evidence of any tripping or accident due to the existence of the metal plate.  The Plaintiff had been working on the pier since 31/7/2001.

10.  According to the evidence of Law Yuk Tong who had been a pier assistant in 4/99 and had been elevated to become a supervisor in the pier, he said he had walked on that plate for 3 years and never found the plate a problem nor had he received any complaints from his colleagues about that metal plate.  Although the Plaintiff said he had complained to him Law denied he had received any such complaint from the Plaintiff.

11.  Liu Man Kay joined the Defendant in 1995 as pier supervisor.  He is responsible for supervising the daily routine and work in the pier.  He did not know the Plaintiff had complained to Wong Kam Kwai the Defendant’s manager.  He had looked at the records of the Company and did not find any written complaint by the Plaintiff concerning the metal plate.  Further he since assuming the post as supervisor had not received any complaints from workers about the bitt and the metal plate.

12.  Wong Kam Kwai the Defendant’s manager also said that he had not received any complaint by the Plaintiff nor had he received any similar complaints by other workers concerning the bitt and the metal plate.

13.  On balance I accept the evidence of Law, Liu and Wong that the Plaintiff had not complained to any of them concerning the metal plate.  I find that this is an isolated occasion.

14.  Even if the Plaintiff had complained, the complaint was not forceful.  In Sarggent v. Gee Stevedoring Co. Ltd. [1957] Lloyd’s Rep. 357 at 359 Ashworth J said “what was said was ‘someone will be getting hurt’.  It seems to me that if a workman contents himself with that sort of remark, it is not to be laid against the Defendants that they failed to treat that as a substantial complaint calling for an alteration in their system…. the system was one which had been used satisfactorily for years.”  So even if the Plaintiff did complain it adds very little not to his case.

15.  The situation here is similar to Pickford v Control Data Ltd. unreported Court of Appeal in England 2/5/84 in which Griffiths LJ said “The position here is that at the stage this accident happened the evidence revealed that one tile on this floor was standing not more than a quarter of an inch proud at one corner, and I am quite unable to bring myself to say that that rendered that floor unsafe.  Walking round any building one is likely to encounter places either where carpet ceases and the floor begins, or through some natural wear on stone, where you will have a difference in level of a quarter of an inch.  It is possible, if you are very fortunate, to catch your foot and stumble on it, but the chances are very remote, and, as a matter of common sense, I am not prepared to hold that such a difference in level renders a floor unsafe.  For my part, therefore, on that ground I would not be prepared to hold that there was here a breach of Section 29 or that this floor was in such a dangerous condition that it rendered the employer in breach of his common law duty not to expose his employees to unnecessary risk of injury.”

16.  Since there is no evidence of similar incidents to pier assistants through out these years, I echo the statement of Griffiths LJ above and hold that the Defendant is not liable for the injury to the Plaintiff.

17.  In the event my finding is reversed.

Contributory Negligence

18.  I find the Plaintiff in part to be blamed for the accident in that the Plaintiff had failed to watch his steps carefully.  Further even according to his own evidence he said he had tripped before, he should be even more careful.  It was in the middle of the day, his eyesight was not blocked.  I rule that the Plaintiff contributed to the accident and he is 50% to be blamed.

Quantum

(1)	PSLA
	This is agreed at $150,000.
(2)	Loss of earnings
	The Plaintiff was given sick leave until 26/1/04 and he started working for New Ferry the next day on 27/1/04 with an increased salary.
	His monthly income was $8,449 with cash bonus which he said was about $2,500 per month during hot weather and $2,000 during cold weather and that with the OK convenient shop opened in the new pier in 9/02 it was dropped to about $500 per month until 11/02 and further dropped to $300 until 4/03 and thereafter he left at $250 per month.
	(i)	Loss of wages
		He did not work for 20.8 months, his loss of wages is therefore $8,449 x 20.8 = $175,739.20.
	(ii)	Income from vending machine
		4/5/02 – 31/8/02 – $2,250 x 3.9 months = $8,775           1/9/02 – 30/11/02 – $500 x 3 months = $1,500           1/12/02 – 30/4/02 – $300 x 5 months = $1,500           1/5/03 – 26/1/04 – $250 x 8.9 months = $2,225           Total   $14,000
	(iii)	Loss of MPF   $4,271.36
			Total (i) + (ii) + (iii) = $194,010.56
(3)	Loss of Future Earning
	Since the Plaintiff is able to get a job with better pay and that he could get back to his previous post, there is no loss of future earning.
(4)	Special Damages
	(i)	The follow up medical expenses is agreed at $4,076.00
	(ii)	Tonic food is agreed at $2,500.00
	(iii)	Acupuncture was not recommended by doctors and should not be awarded.
	(iv)	Travelling expenses
		The claim by the Plaintiff is to take taxi for his follow up treatment.  This is extravagant.  If he was able to take public transport to Shenzhen I see no reason why he could not take public transport.  The Defendant submit that $5,000 under this head is reasonable and I agree.
	(v)	Future medical expenses of $28,000 is recommended by doctor and I allow this item.  However I do not agree that he is entitled to future loss of earning for undergoing treatment as the time for the treatment can be arranged so as not to interfere with his job.
		Total
			(i) + (ii) + (iv) + (v) = $39,576

19.  The total amount of damages is therefore assessed at (1) + (2) + (4) = $383,586.56.

20.  As I find the Plaintiff 50% to blame the amount should be $383,586.56 ÷ ⁵⁰/₁₀₀ = $191,793.28.

21.  With interests on $75,000 at 2% from date of writ to judgment and the balance at ½ judgment rate from date of accident to judgment.

22.  $182,479.54 being the periodical payment and compensation in Employees’ Compensation Claim have to be deducted from the amount I assessed.

23.  In view of the fact that I find the Defendant not liable in respect of the Plaintiff’s injury, the Plaintiff’s claim is therefore dismissed with costs.  Certificate for counsel.

24.  The Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.