TSE KA LAM v. WAN ON TRANSPORTATION COMPANY LTD

HCPI 951/2015

[2025] HKCFI 6261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 951 OF 2015

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JUDGMENT

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Introduction

1.  The Plaintiff was employed by the Defendant as a transportation container worker. 

2.  On 9 September 2012, the Plaintiff was assigned to work on board a vessel RBD JUTLANDIA (“the Vessel”).  The Plaintiff fell from a container (“the Container”)  and landed on the footpath of a barge ( “穗順109”)  (“the Accident”).  The Plaintiff claims damages against the Defendant for his personal injuries as a result of the Accident. 

3.  On a separate note, the Defendant commenced third party proceedings against two third parties seeking to recover damages and costs arising from the Accident suffered by the Plaintiff in the event that the Defendant is held liable to it. 

4.  This trial determines both liability and quantum of the Defendant and the third parties. 

Background

5.  The Plaintiff was born in 1979. He was 33 at the time of the Accident. 

6.  At about 7 am of 9 September 2012, the Plaintiff was carrying out his duty on the Vessel to assist in the unloading of containers from it onto 穗順109 with 2 other workers.  As there was another vessel apart from the Vessel and 穗順109.  It is the Plaintiff’s case that the optimal number of workers should be 9 people separating into 3 small groups. 

7.  At around 10:30 a.m. on the same day, the Plaintiff was standing on top of a container which has been lifted from 穗順109 to the Vessel by a crane located on 穗順109. The Plaintiff started to release the hooks to the 4 corners of the container at the Vessel.  When the Plaintiff was still releasing the last two hooks from the container, the crane suddenly moved and the container was raised and slanted towards 穗順109.

8.  The Plaintiff lost balance and fell down from a height of 30 to 40 feet and landed on the footpath of 穗順109. As a result of the Accident, the Plaintiff sustained serious injuries to multiple parts of his body. 

9.  The Defendant does not dispute the existence of the Accident but does not admit that the Accident happened as the Plaintiff described.  Although not pleaded in the Defence, the Defendant suggests that the tilting of the container was caused by sea wave, relying on the contents of a statement (“TP1’s Statement”)  to the Marine Department by the 1^st Third Party (“TP1”), who was the crane operator on the day, and an investigation report of the Marine Department (“Marine Department Report”)  made after the Accident. 

10.  The Defendant contends that the Accident was not caused by the Defendant’s negligence. 

11.  The Defendant also maintains that the liability, if established, should be wholly borne by TP1 and the 2^nd Third Party (“TP2”). 

Parties’ cases

12.  It is the Plaintiff’s pleaded case that the Accident was caused by the negligence, breach of common duty of care under the Occupiers Liability Ordinance (Cap. 314), breach of statutory duty under the Occupational Safety and Health Ordinance (Cap.509), and breach of employment contract on the part of the Defendant. 

13.  In particular, the Plaintiff pleaded that, inter alia, the Defendant was negligent because it had failed to provide a safe system of work and/or sufficient support and protection to the Plaintiff, including sufficient manpower, a signaler, a work supervisor, and adequate communication equipment (e.g. walkie talkie)  to communicate with the crane operator (TP1). 

14.  The Defendant pleaded that, inter alia, the Defendant was not responsible for the operation and/or maintenance of 穗順109 and its crane and had no control over TP1 and TP2.  The Accident was not caused by the Defendant’s alleged negligence. 

Third party proceedings

15.  The Defendant pleaded that the Accident was wholly caused or contributed to by the negligence and/or the breach of common duty of care on the part of TP1, for which TP2 was vicariously liable. 

16.  Specifically, the Defendant pleaded that TP1 and TP2 had failed to maintain the stability of the crane and its hook slings while the Plaintiff was working on the top of the Container nor keep proper communication with the Plaintiff, leading to the Accident and suffered injuries by the Plaintiff. 

17.  Neither TP1 nor TP2 filed any Defence in the Third Party Proceedings. 

Liability

Issues

18.  In respect of the liability of Defendant to the Plaintiff’s sustained injuries, as submitted by Ms Susanna Leong, counsel for the Plaintiff, the only defence raised by the Defendant is causation.  The following are therefore the pertinent issues:-

(1)  Whether the Accident was caused by the crane lifting up the container as described by the Plaintiff? 

(2)  Whether the Accident would have been prevented if signaler(s)  and/or work supervisor(s)  had been provided?  

(3)  Whether the Accident would have been prevented if the Plaintiff were provided with communication equipment, such as, walkie-talkie to communicate with the crane operator of 穗順109? 

(4)  Whether the Accident was wholly or partly caused by the negligence of the Plaintiff?

The plaintiff’s evidence

19.  The Plaintiff gave evidence himself.  The salient evidence he gave could be summarized as follows:-

(1)  In terms of division of labour, in normal situation there would be 3 workers in a group, in which 2 of them would be responsible for discharging the 4 hooks, and the remaining worker would be responsible to be the signaler.  If there are instantly two vessels in action, there would need 3 teams of workers, altogether 9 to complete the work safely.  In reality, however, there are only 7 workers to work. 

(2)  He was not the designated signaler on the day of the Accident. 

(3)  He did not have any licence to work as a signaler at the time of the Accident and that no company employed him as a signaler at that time. 

(4)  Due to inadequate manpower provided by the Defendant on the date of the Accident, the Plaintiff had to work on his own but not a team.  In short, he had to handle the discharge of hooks, re-installing the hooks, and be the signaler to give signals to TP1 on his own. 

(5)  There was no monitoring staff stationed by the Defendant nearby on the date of the Accident. 

(6)  The crane operated by TP1 was not only involved in the operation on the Vessel, but was also involved in the operation of 穗順109. 

(7)  The Defendant never conveyed any safety precautions to the workers, nor did it give any warning to the Plaintiff the potential risks of standing on the top of the container. 

The defendant’s evidence

20.  The Defendant called 吳卓元 (“Mr Ng”), a director of the Defendant, to give evidence.  Mr Ng adopted the witness statement of 梁震聰 (“Mr Leung”), the general manager of the Defendant, in his evidence. 

21.  The evidence of Mr Ng can be summarized as follows:-

(1)  He admitted that he was not present at the time of the Accident. 

(2)  He claimed that there was provision of reflective clothing, helmet, and gloves. 

(3)  He stressed that the Defendant did not have any control nor management over the operation of 穗順109 or the crane thereof.

(4)  He made reference to TP1’s Statement and the Marine Department Report. 

22.  In other words, apart from relying on TP1’s statement and the Marine Department Report, there is no positive case put forward by the Defendant in its evidence. 

Whether the accident was caused by the crane lifting up the container as described by the plaintiff?

23.  The only evidence to suggest an alternative cause of the tilting of the container to the Plaintiff’s version are TP1’s Statement and the Marine Department Report.  Apparently, the findings of the Marine Department Report are based on TP1’s Statement. 

24.  TP1 has given no evidence in the present proceedings and the Plaintiff is the only eye witness giving evidence on what had happened on the date of the Accident. 

25.  In my judgment, TP1’s Statement and the Marine Department Report can be of minimal weight in this trial.  TP1’s Statement was not prepared for the purpose of this trial.  It was prepared for the Marine Department to consider if there could be any possible criminal prosecution and TP1 had his own interest to serve.  The Marine Department Report is secondary to TP1’s Statement and in only one page.  They are both hearsay evidence. 

26.  Moreover, it is not the Defendant’s pleaded case that the sudden movement of the crane was caused by sea waves. 

27.  On the other hand, the Plaintiff’s version is supported by his own evidence given in court and was not much challenged in cross-examination. 

28.  Furthermore, as submitted by Ms Leong, the fact that the Plaintiff fell for a distance, which consisted of 2 container spaces plus berthing distance, and landed on 穗順109, suggested that the container must have been lifted for some heights.  It could only be lifted by TP1 operating the crane. 

29.  I accept the Plaintiff’s evidence in full as to how the Accident happened and I so found as a matter of fact. 

Whether the Accident would have been prevented if signaler(s)  and/or work supervisor(s)  had been provided?

30.  Mr Leon Ho, counsel for the Defendant, submitted that in order for the Plaintiff to succeed in his claim, the Plaintiff has to prove either one of the 2 possible counterfactuals, that the Accident would not happen, if the Plaintiff were to provide sufficient precautions including but not limited to manpower, signaler, supervisor, and walkie-talkie:-

(1)  Either there would be no sudden movement of the crane of 穗順109 such that the Container would not move suddenly; or

(2)  Notwithstanding there was sudden movement of the crane of 穗順109, such that the Container was raised and slanted towards 穗順109, the Plaintiff would be able to escape. 

31.  In my judgment, the distinction drawn by Mr Ho is rather convoluted and unnecessary. 

32.  In any event, I accept the Plaintiff’s submissions that the reasonable inference to be drawn is that the Accident was due to the way in which TP1 operated the crane in view of the actual circumstances. 

33.  I find that the sudden movement of the crane took place at the wrong time where the Plaintiff was still working on the top of the Container.  Should there be sufficient manpower provided by the Defendant, the Plaintiff would not have worked on the top of the Container at the time of the Accident and at the same time acted as the signaler.  I accept the Plaintiff’s evidence as a matter of fact that there was insufficient manpower provided by the Defendant, which should, in the appropriate and normal situations, have a total of 9 workers. 

34.  I also accept the Plaintiff’s evidence specifically that there was no signaler at work during the date of the Accident, which had led to the Plaintiff having no choice but to give signals on the day of the Accident, which substantiated the chance of the happening of the Accident. 

35.  Further, I accept the evidence of the Plaintiff that there exists a licensing system for signalers but the Plaintiff was unlicensed.  This highlighted the importance of a signaler and the unsatisfactory and dangerous situation that the Plaintiff had to perform two different roles at the same time. 

36.  Should there be a proper signaler in place, the chance of miscommunication with the crane operator, which is the likely cause of the Accident, can be significantly reduced or even diminished. 

37.  For completeness, I do not accept the Defendant’s assertion that the Accident would still have happened if the Plaintiff were provided with sufficient manpower and a signaler. 

Whether the Accident would have been prevented if the Plaintiff were provided with communication equipment, such as, walkie-talkie to communicate with the crane operator of 穗順109?

38.  This issue is connected with the previous issue. 

39.  I accept, as a matter of fact, TP1 was not only involved in the operation of the Vessel, but was also involved in the operation of 穗順109.  It is therefore obvious that the attention of TP1 was distracted by his multitasks. 

40.  Should the Plaintiff be provided with communication equipment, such as a walkie-talkie, the Plaintiff would have had direct communication to TP1 to avoid the Accident.  TP1 could have made sure that the Plaintiff is ready and in a safe position before he lifted up the container. 

Whether the Accident was wholly or partly caused by the negligence of the Plaintiff?

41.  I do not accept that the Accident was caused wholly or partly to the Plaintiff’s contributory negligence.  The Plaintiff could not have been “more careful” on the basis of his lack of protection and supportive manpower during the course of his work.  

Conclusion on Liability

42.  In light of my findings above, I have no hesitation to find that the Defendant is liable to the Plaintiff’s sustained injuries as a result of the Defendant’s negligence and/or breach of common law and/or statutory duty of care owed to the Plaintiff.  

Quantum

43.  Insofar as the quantum is concerned, the below table summarized the latest positions of the parties:-

	Head of damages	Plaintiff (HK$)	Defendant (HK$)
(1)	Pain, suffering, and loss of amenities (“PSLA”)	900,000	600,000
(2)	Pre-Trial Loss of earnings and mandatory provident fund contribution (“MPF”)	1,147,594.35	854,756
(3)	Loss of earning capacity	480,000	0
(4)	Special damages, consisting of (a)   Medical expenses (b)   Tonic food (c)   Traveling expenses	11,830 4,000 2,000	10,000 Agreed Agreed
(5)	Less compensation received under the EC Action	(900,000)	Agreed
	Total	1,645,424.35	570,756

Injuries and Medical treatments

44.  The Plaintiff claims that he has suffered multiple injuries including fractures to his back, left upper limb, both lower limbs, and chest.  He has undertaken the following key medical treatments:-

(1)  Immediately after the Accident, the Plaintiff was admitted to the Accident & Emergency Department (“A&E”)  of Princess Margaret Hospital (“PMH”).  He complained of loss of consciousness, abdominal pain and left ankle swelling. 

(2)  He was admitted to Intensive Care Unit (“ICU”)  for 2 days and was then transferred to the Orthopaedics Ward after stabilization. 

(3)  On physical examination at the Department of Orthopaedics & Traumatology (“DOT”)  of PMH, there was tenderness at the back, left wrist and both feet.  X-ray and CT scan revealed various fractures such as lumbar spine, scarum, both calcanuem, dislocation of left wrist, etc. 

(4)  The Plaintiff underwent operations for Posterior spinal fusion for lumbar fracture, open reduction and fixation for right tarsal fracture, and open reduction and fixation for left wrist fracture dislocation surgeries on 13 September 2012 and open reduction and fixation for left calcaneal fracture surgery on 20 September 2012. 

(5)  On 2 November 2012, the Plaintiff was seen by Department of Neurosurgery of PMH.  The diagnosis was minor head injury as part of the multiple injury. 

(6)  The Plaintiff was referred to Department of Physiotherapy of Tuen Mun Hospital (“TMH”).  From 7 to 8 of November 2013, he had 45 sessions of physiotherapy. 

(7)  The Plaintiff was seen by Clinical Psychologist twice as an inpatient in PMH on 14 to 21 of September 2022. On 22 February 2013, he was referred to the Clinical Psychology Department of Caritas Medical Centre (“CMC”)  as an outpatient for depressed mood and posttraumatic stress reactions.  Between 3 May 2013 and 22 July 2014, he was seen 12 times as an outpatient in CMC. He was impressed to be suffering from Posttraumatic Stress Disorder (“PTSD”)  and mildly depressed mood. 

(8)  From 19 November 2012 to 9 January 2014, the Plaintiff had 38 sessions of occupational therapy at the Occupational Therapy Department of TMH.

(9)  On 19 August 2015, the Plaintiff was admitted to PMH for arthroscopic microfracture of right talus OCL and open subtalar fusion which was performed on 20 August 2015. 

Joint Orthopaedic Examination

45.  The Plaintiff was jointly examined by Dr Tio Man Kwun Peter (“Dr Tio”)  and Dr Chun Siu Yeung (“Dr Chun”)  on 29 May 2015.  Dr Tio and Dr Chun set out their respective expert opinion in the Joint Orthopaedic Expert Report dated 14 July 2015 (“JOR”). 

46.  In the JOR, Dr Tio and Dr Chun agreed that the diagnoses were (1)  Burst fracture L3 with neurological deficit; (2)  Minor head injury; (3)  Fracture sternum with pneumothorax; (4)  Left wrist peri-lunate fracture dislocation; (5)  Fracture right talus, lateral malleolus and os calcis; (6) Fracture left os calcis; and (7)  Fracture S5. 

47.  Dr Tio and Dr Chun also agreed that the Plaintiff would have difficulty to resume his pre-accident employment as a rigger. 

48.  However, both doctors differed in terms of overall prognosis for the Plaintiff’s serious injuries.  Whereas Dr Tio opined that the overall prognosis for the Plaintiff’s serious injuries would be guarded with those residual symptoms and signs be permanent, Dr Chun opined that the prognosis for the L3 burst fracture, left wrist injury and right fracture os calcis and talus, fracture sternum should be very good. 

49.  Overall, it is Dr Tio’s opinion that the impairment of whole person (“IWP”)  and Loss of Earning Capacity (“LEC”)  would be 25% and 34% respectively whereas the opinion of Dr Chun on IWP and LEC would be 16% and 20% respectively. 

50.  I do not find it necessary to express my preferred medical opinion in this case, as it seems to me that their professional opinion on the Plaintiff’s sustained injuries, prospects of recovery, and loss of earning capacity are very much similar.  However, insofar as necessary when I am dealing with the quantum in this case, in the event that the medical opinions differed at crucial aspects, I prefer the opinion of Dr Tio. 

PSLA

51.  The Plaintiff claims HK$900,000 for PSLA whilst the Defendant contends that the suitable sum should be HK$600,000. 

52.  I am of the view that the following medical complications and experience of the Plaintiff should be taken into account in assessing PSLA:-

(1)  He had been in ICU for 2 days and was hospitalized for 32 days. 

(2)  He underwent 5 operations - 4 operations in September 2012 to treat the multiple fractures and another operation on 20 August 2015 for arthroscopic microfracture of right talus OCL and open subtalar fusion.  

53.  I have considered the following cases cited by parties’ counsel which I think they are of similar circumstances in the Plaintiff’s shoes:-

(1)  To Ka Wong v World Gold International Ltd [2019] HKDC 1321; DCPI 1068/2019 (3/10/2019): The plaintiff suffered multiple rib fractures; multi-level transverse process vertebral fractures (with unstable double column fractures involving L1 and L3); sternum fracture, bilateral lung contusion with small pneumothoraxes & a small left pleural effusion, a small haematoma/oedema under sternum fracture and superficial laceration to left scalp and left side of face.  It is considered “serious injury” category and PSLA was awarded at HK$600,000. 

(2)  Chan Ka Lok v Ng Kwok Fai HCPI 740/2011 (27/9/2013): The plaintiff fell from 15 feet and suffered fracture of right foot and fracture of L1.  The fractures were healed at the time of hearing, but he was left with scars and residual pain at the back and right foot, in particular when lifting heavy object.  The function of the back and right foot was worse than before the accident.  There was wasting of right thigh and calf.  PSLA was awarded at HK$500,000. 

(3)  Lam Chan Hung v Hang Yue Engineering Ltd. HCPI 121/2011 (12/3/2013): The plaintiff suffered fractures to his right foot and ankle, which were treated with open reduction and internal fixation.  The right foot and right ankle implants were removed on 2 subsequent occasions.  He also suffered fractures of 9^th and 10^th ribs, from which he satisfactorily recovered.  He suffered burst fracture of L3, which was treated with bracing.  He underwent an operation for closed reduction and percutaneous pedicle screws fixation from L2 to L4 about 1 month after the accident.  Taking into account the plaintiff’s continuing and permanent disabilities resulting from his back and leg problems, aggravated by Adjustment Disorder, urinary symptoms and sexual dysfunction, the Court found that his injuries fell within the top of “serious injury” category and border on the “substantial injury” category.  PSLA was awarded at HK$620,000. 

54.  I also take note of Ms Leong’s submission that the ranges of PSLA should be applied by inflation rates of around 2% annual rate published by Census and Statistics Department, Cheung Ka Man v Wong Yu Huen [2023] HKDC 370; DCPI 214/2021 (17/3/2023), per HHJ Andrew Li, at [116]-[117]. 

55.  Given I am of the view that the present case is similar to that of To Ka Wong (2019)  which adopted a PSLA sum of HK$600,000, I will allow the annual inflation of 2% and the PSLA for the current award at the end of 2023 will be HK$662,448. 

Loss of earnings and MPF

56.  The Plaintiff claims a total sum of loss of earnings and MPF of HK$1,147,594.35, relying on a monthly salary of HK$17,800 at the time of Accident. 

57.  The Defendant however claims that the Plaintiff earned around HK$480 per working day on average.  Assuming the Plaintiff worked for 26 days a month, the monthly salary should be around HK$12,480.  The alternative case of the Defendant however is the Plaintiff’s monthly salary was HK$17,800. 

58.  I will adopt the Plaintiff’s case that his average salary was HK$17,800 at the time of the Accident, as evidenced by his wage records provided to the Court.  The only issue under this head of damage is the multiplicand to be adopted. 

59.  Mr Ho submitted that the multiplicand should not be changed when calculating the pre-trial loss, namely, the amount of HK$17,800 should be used for the notional earning of the sick leave period plus 3 months of job seeking period, i.e., 45 months and 22 days. 

60.  I do not agree with Mr Ho.  The Plaintiff gave evidence, to which I accept, that the sum of HK$17,800 was the average monthly earnings of the Plaintiff back in March to August 2012.  However, the calculation was based on the differences of the rates for handling containers back in March/April 2012 and July/August 2012, which were increased from HK$24/32 to HK$26/34 over the said 6 month period already.  According to the Plaintiff’s evidence in court, the rate of handling each container had even been increased to HK$30+/40+ in 2017. 

61.  Although the figures were learnt only from the Plaintiff’s friends who were in the industry and not the Plaintiff’s first-hand knowledge, I have no reason to doubt their reliability.  In any event, I am of the view that the Defendant was in a position to provide relevant figures but they chose not to.  It is only fair that the figures provided by the Plaintiff in his evidence is relied upon. 

62.  To achieve a fair amount as multiplicand, I should take into account the Plaintiff’s estimation of inflation subject to an appropriate adjustment.  In my view, the monthly earnings of riggers should be increased to around HK$25,000 at 2017 (based on the hourly rate of handling containers to be HK$30-35). 

63.  Taking the matters in the round, I am of the view that the Plaintiff’s pre-trial loss of earnings and MPF should be assessed at (HK$17,800 + HK$25,000)/2 × 45.73 × 1.05 = HK$1,027,553. 

Loss of Earning Capacity

64.  The Plaintiff concedes that there is no longer any claim for future loss of earnings in light of his post-accident earning levels.  The Plaintiff however increases this head of claim as a result of his withdrawal of his claim for future loss of earnings.  The Plaintiff now asks for a sum of HK$480,000 instead of HK$150,000 as originally pleaded under this head.  

65.  Ms Leong submitted that the Court is not bound by the Plaintiff’s pleaded sum, i.e. HK$150,000 but should determine a “fair and reasonable” in its own motion.  Ms Leong made reference to the case of Rai Surya Prakash v Pacific Crown Security Services Limited [2020] HKCFI 917, where Deputy High Court Judge Anson Wong SC assessed the damages for loss of earning capacity as HK$450,000 for a rigger of less serious injuries suffered.  The learned Deputy Judge expressed that the Court is not, and cannot be bound by the figure of HK$100,000 pleaded by the plaintiff on the basis that he would also be compensated for Future Loss of Earnings. 

66.  Ms Leong submitted that, due to the Plaintiff’s efforts of mitigation, there is no longer any claim for Future Loss of Earnings in the light of the level of his post-accident earnings.  However, the Court should determine a fair and reasonable amount for the Plaintiff’s Loss of Earning Capacity his vulnerability in the labour market and the risk of being prejudiced or at a disadvantage in obtaining employment.  And the Plaintiff’s evidence on the effect of his injuries and disabilities on his work capacity in his witness statements was not challenged under cross-examination. 

67.  Ms Leong submitted that, in the light of the Plaintiff’s injuries and evidence on his working capacity, it is reasonable to allow an award which represents loss of 1 month’s earnings in each year during the remaining working life of the Plaintiff.  Ms Leong submitted that the monthly salary of HK$30,000 and a multiplier of 16 should be adopted. 

68.  On the other hand, Mr Ho emphasized that the Plaintiff’s post-accident employment track record speaks for itself and he should not be entitled to any loss of earning capacity award. 

69.  I am of the view that the Court should assess a fair and reasonable award for Loss of Earning Capacity to the Plaintiff in view of the injuries he suffered.  I agree with Ms Leong that Rai Surya Prakash is a suitable case for reference. 

70.  In the circumstances, I would adopt the formula proposed by Ms Leong but adjust the monthly salary to HK$25,000 in view of my finding under paragraph 63 above. 

71.  The amount awarded on this head is therefore HK$25,000 × 16 = HK$400,000. 

Special Damage

72.  The only disputes under this head is the claim of medical expenses.  

73.  The differences proposed by parties are subtle, i.e. the HK$1,830 difference. 

74.  The Plaintiff explains that the sum of HK$11,830 is based on medical expenses incurred up to 21 July 2023 which were all paid for psychiatric treatments. I see no reason why they should not be allowed. 

75.  I therefore allow the medical expenses of HK$11,830, together with the agreed fee of tonic good and travelling expenses of HK$4,000 and HK$2,000 respectively. 

Summary of Quantum Awarded

76.  The quantum of damages that I will award to the Plaintiff is as follows:-

	Head of damages	(HK$)
(1)	PSLA	662,448
(2)	Loss of earnings and MPF	1,027,553
(3)	Loss of earning capacity	400,000
(4)	Special damages, consisting of (a)   Medical expenses (b)   Tonic food (c)   Traveling expenses	11,830 4,000 2,000
(5)	Less compensation received under the Employees Compensation Action	(900,000)
	Total	1,207,831

77.  Judgment be entered against the Defendant for the Plaintiff for the sum of HK$1,207,831 with break downs set out in the table at the aforesaid paragraph. 

78.  I award interest on general damages at 2% per annum from the date of service of writ until date of judgment and on the special damages at 4% per annum from the date of accident until judgment.  This interest award is an order nisi which will become absolute unless any party applies to vary within 14 days. 

Third Party Proceedings

79.  The Defendant claims indemnity and/or contribution from TP1 and TP2 in respect of any sum which the Plaintiff may recover against the Defendant, and an indemnity and/or contribution under the provisions of section 25(1)(b)  of the Employees’ Compensation Ordinance (Cap. 282) (“the ECO”), and/or alternatively under section 3 of the Civil Liability (Contribution)  Ordinance (Cap. 377) (“the CL(C)O”)  in respect of the compensation, interest, and legal costs in the EC Action with the following breakdown:

(1)  HK$900,000 being compensation paid in the EC Action;

(2)  HK$150,000 being the Plaintiff’s costs and disbursements paid by the Defendant in the EC Action;

(3)  HK$98,000 being costs incurred by the Defendant in defending the EC Action;

(4)  HK$96,500 being disbursement incurred by the Defendant in the EC Action. 

80.  The Defendant relies on CL(C)O to seek recovery against TP1 and TP2 in respect of any damages and costs that the Defendant may be ordered to pay the Plaintiff in the present action. 

81.  Section 4(1)  of CL(C)O provides that:

“Subject to subsection (3), in any proceedings for contribution under section 3 the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.”

82.  Having heard the evidence in this trial, I am of the view that TP1 should also bear a certain extent of responsibilities to the Plaintiff’s injuries, for which TP2 is vicariously liable.

83.  Although but for the Defendant’s breaches of duty and negligence, which I so found in this judgment, the Accident would not have happened, the Accident was also caused by TP1’s negligence in not making sure that the Plaintiff was in a safe position before he moved the crane. 

84.  I am of the view that the Defendant and TP1 should each bear 50% of the liabilities towards the Plaintiff. 

85.  As I find that the Defendant is wholly liable to the Plaintiff’s sustained injuries, it is not necessary for me to consider quantum of TP1 and TP2. 

86.  In the circumstances, judgment be entered against TP1 and TP2 for the Defendant for the sum of (HK$900,000+150,000+98,000+96,500=HK$1,244,500)× 50% + HK$1,207,831 × 50% = 1,226,165.5. 

87.  I make a costs order nisi that costs of the main action be to the Plaintiff and costs of the Third Party Proceedings be to the Defendant, to be taxed if not agreed.  The Plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.  Without further order of the court, in the absence of an application to vary within 14 days, the costs order nisi will become absolute. 

88.  I thank counsel for their assistance.