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HCPI 325/2016
[2019] HKCFI 1618
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 325 OF 2016
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BETWEEN
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HO KWOK KEI |
Plaintiff |
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and |
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A.S. WATSON & COMPANY, LIMITED |
1st Defendant |
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A.S. WATSON GROUP (HK) LIMITED |
2nd Defendant
(discontinued) |
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CHUNG HING TRANSPORTATION LIMITED |
3rd Defendant |
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Before: Hon G Lam J in Court
Dates of Hearing: 23-26 October and 5 November 2018
Date of Judgment: 27 June 2019
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J U D G M E N T
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A. Introduction
1. In this action the plaintiff claims damages for personal injuries arising from an alleged accident at work on 3 December 2010.
2. The plaintiff was born on 19 December 1963. In 2010 he was working for A.S. Watson & Company, Limited, the 1st defendant, as the Store Manager of the “Park’n Shop” supermarket operated by the 1st defendant at 21 Yin Hing Street, San Po Kong, Kowloon (“the Store”).
3. The delivery of goods from the 1st defendant’s warehouses — also called distribution centres — to various “Park’n Shop” supermarkets, including the Store, was arranged by a related company, A.S. Watson Group (HK) Limited (“ASWGL”). ASWGL in turn engaged transport contractors to make such delivery. At the material time, there were two such contractors engaged by ASWGL, one of which was Chung Hing Transportation Limited, the 3rd defendant. The contract between ASWGL and the 3rd defendant at the time was embodied in a written agreement dated 15 March 2010 called “Service Agreement for Provision of Transportation Services” (“Service Agreement”), the terms of which are set out in §61 below. The 3rd defendant used both trucks provided by ASWGL and its own trucks to perform the Service Agreement.
4. On 3 December 2010, Mr Chik Poon Lee (“Mr Chik”), an employee of the 3rd defendant, drove a medium goods vehicle (“Lorry”) owned by ASWGL and provided to the 3rd defendant for use under the Service Agreement, to deliver goods from the Shatin distribution centre to the Store. The Lorry had an enclosed goods compartment and a hydraulic tailgate loading platform (“Tailgate”). According to the plaintiff, he helped unload the goods from the Lorry and while he was standing on the Tailgate next to a pallet jack laden with goods, the Tailgate suddenly tilted downwards. The goods and the pallet jack were displaced and crushed his right foot.
5. The plaintiff claims that the accident was caused by the negligence of Mr Chik, for which the 3rd defendant is vicariously liable. He claims that the 1st defendant breached its own duty as employer and occupier and relevant statutory duties, and is also vicariously liable for the negligence of Mr Chik because the activity undertaken by the 3rd defendant was an integral part of the 1st defendant’s business. ASWGL was initially sued as the 2nd defendant but the action was discontinued as against it at an early stage.
6. The 3rd defendant disputes the accident as alleged by the plaintiff. The 1st and 3rd defendants dispute liability and aver that if they are liable, the plaintiff was contributorily negligent. In addition, the 1st defendant claims contribution from the 3rd defendant.
B. The issues
7. Based on the contentions of the parties, the following broad issues arise, which will be discussed in turn below:
(1) Did the accident take place as alleged by the plaintiff? Was the plaintiff injured in the way alleged?
(2) Was Mr Chik negligent and did his negligence cause the accident?
(3) Did the 1st defendant breach its own duty to the plaintiff?
(4) Is the 1st defendant vicariously liable for the negligence of Mr Chik?
(5) Was the plaintiff contributorily negligent?
(6) How should liability between the 1st defendant and the 3rd defendant apportioned? Is the 1st defendant entitled to contribution or indemnity from the 3rd defendant?
(7) What is the quantum of damages payable to the plaintiff?
C. The accident
C1. The pleas and the factual evidence
8. According to the plaintiff, deliveries were made to the Store on 3 to 4 days every week. There was a worker in the Store responsible for receiving deliveries but if a lorry arrived when that worker was occupied, the plaintiff would take up the responsibility for unloading, which he had to do about 5 to 6 times a month. On the day in question, there were two deliveries, both of which were unloaded by the plaintiff. At about 11:30 am the Lorry arrived for the second delivery of the day. It is common ground that it was parked on the roadside near the Store.
9. The plaintiff’s pleaded case[1] is that he used a manual pallet jack taken from the Store to move the goods on pallets from the goods compartment of the Lorry to the Tailgate and then to the Store. On one of these trips, the plaintiff had moved the loaded pallet jack onto the Tailgate and was standing on the edge of the Tailgate next to the pallet of goods. While the Tailgate was being lowered, the driver pressed the wrong button on the controls and the Tailgate suddenly tilted forward causing the pallet jack and a pallet of goods to roll forward over and trapping the plaintiff’s right foot, as a result of which the plaintiff suffered injury to his right big toe and second toe. The plaintiff shouted to the driver who then lowered the Tailgate to the ground, levelling it to release the plaintiff’s right foot from the pallet jack. In addition, the plaintiff pleaded that the loaded pallet was “a lot heavier than the usual load”.[2]
10. The 1st defendant admits that Mr Chik was operating the controls of the Tailgate and pressed the wrong button.[3]
11. The 3rd defendant disputes the accident and denies that Mr Chik pressed the wrong button or caused the Tailgate to tilt forward. It denies that Mr Chik had ever heard at the time that there was the alleged or any accident, and avers that it was first informed of the alleged accident when it received a letter dated 27 September 2013 from the 1st defendant’s solicitors.
12. The pallets used by the 1st defendant were generally 1.2m by 1.2m or 1m by 1m in size. The cargo hold of the Lorry was about 2.4m wide and 6.5m long so that 2 rows of 6 pallets could be placed with it at the maximum. The Tailgate had approximately the same width as the Lorry itself.
13. In his statement (made in August 2015), the plaintiff said that the pallet of goods he was handling at the time was about 4 feet high, and contained cartons of different sizes. After he pulled the pallet jack to the Tailgate, with the prongs facing the goods compartment of the Lorry, he signalled to the driver to lower the Tailgate. Immediately upon being lowered, the Tailgate slanted downwards. The jack moved and pressed his right foot. His foot was trapped and he shouted in great pain. The driver noticed there was an accident, levelled the Tailgate, lowered it to the ground and raised the goods to free the plaintiff’s foot. The plaintiff sat on the roadside, took off his shoe, and saw that his right big toe and second toe were bruised and bleeding and looked squashed. The plaintiff said the driver was very worried and apologised to him, and recorded the accident in the Lorry’s logbook, asking the plaintiff to describe the accident there which he did in a few words. At that time a clerk of the Store came out, saw the plaintiff’s injury, and took a few photographs. That colleague helped the plaintiff into the Store and made a report by telephone to the district manager, Mr Law, who told the plaintiff to see a doctor and report the incident as injury at work.
14. The plaintiff said he went to see Dr Kong for treatment, and although he was given sick leave, he continued to work in the Store because of lack of manpower. Meanwhile he consulted Dr Kong and another clinic for right foot pain. This situation continued until July 2011 and as he felt his condition had not improved but had deteriorated, he asked the district manager Mr Law to report the incident.
15. During cross-examination the plaintiff said that after he had pulled the laden jack to the Tailgate, it was placed at the centre of the Tailgate. He turned the jack handle to a right angle to the line of the prongs — a step he was accustomed to take to prevent the jack from sliding or moving. He did not release the hydraulic pressure of the jack to lower the pallet on to the Tailgate. He said no one had taught him to do so but accepted that even without being taught, anyone would have seen that it would be safer to do so. He said after placing the goods there, he stood on the left side of the goods. He accepted that the driver should be standing near the hinge of the Tailgate rather than near its end, and that in this respect the diagram at paragraph 11 of the statement was incorrect. He said it was the pallet, not the jack, that pressed on his foot, and that in this respect paragraph 12 of his statement was not accurate. He said the colleague who came out and saw him was Ms Tse Yee Yuk, not a Ms Cheung as stated in paragraph 13 of his statement. The plaintiff said that he had asked if Ms Tse could be his witness but she declined.
16. The plaintiff was also cross-examined in relation to an “Accident / Incident Investigation Report” of the 1st defendant he filled in on 11 July 2011 (“Incident Report”). The accident was described there as follows:
「 當我落沙田倉時，準備將起重車（唧車）放鬆，但司機突然按制降尾板，使尾板傾斜，同一時間，我(?)在降(?)唧車，結果被卡住，右腳趾被壓住，我當時想把腳抽出來，但不成功，最後沙田車司機放低尾板，升起部唧車，把我放出來。」
In English translation:
“ When I was unloading [the goods from] the Shatin warehouse, (I) was going to release the forklift truck (jack). However, the driver suddenly pressed (a) button to lower the tailgate, causing the tailgate to tilt. Meanwhile, I was lowering (?) the jack and was thus stuck. My right toe(s) was/were pressed. I tried to pull my foot out at that time but to no avail. Finally, the driver of the Shatin vehicle lowered the tailgate, lifted the jack, and released me.”
There are discrepancies in that in this report, (i) the plaintiff said he was going to release the jack (which the 3rd defendant submitted was a reference to releasing the hydraulic pressure); and (ii) the plaintiff did not say he had signalled to the driver to lower the Tailgate before the accident happened.
17. The driver, Mr Chik, was called by the 3rd defendant to testify. He was 60 years old in December 2010. He had been employed by the A.S. Watson group as a lorry driver for Park’n Shop over 15 years before joining the 3rd defendant at the beginning of 2010. He had retired from the 3rd defendant since August 2011. In his statement dated June 2015, he said that the goods on each pallet would usually not exceed shoulder height. He said that for the Store, usually the plaintiff would do the unloading himself, sometimes assisted by a colleague. He categorically denied that the accident happened as alleged by the plaintiff. He said he was very familiar with the operation procedures of Park’n Shop lorries and their tailgates. He said he only first learnt in late October 2013 from Mr Ko of the 3rd defendant that the plaintiff claimed the accident happened. He was very surprised to hear about it; if what the plaintiff said was true, he would not have had no impression at all of the accident.
18. It is common ground that there are two alternative sets of control for the Tailgate near the rear end of the Lorry, one on the left and one on the right. The left control — fixed on the Lorry’s side — consists of a green safety button about a foot apart from a column of three buttons. To raise or lower the Tailgate horizontally, one has to press the green button and the first or third button respectively. To tilt the Tailgate upwards or downwards, one has to press the green button and the first and second or the second and third buttons respectively.
19. The control on the right hand side — a remote control connected to the Lorry by a cord — had only three buttons. To raise or lower the Tailgate horizontally, one has to press the first or third button respectively. To tilt the Tailgate upwards or downwards, one has to press the first and second or the second and third buttons respectively.
20. Since the driver was positioned on the left hand side of the Lorry on the plaintiff’s case, he would have to have pressed the green button and both the second and third buttons for the Tailgate to slope downwards as alleged (instead of the green button and the third button to lower the Tailgate in a horizontal level).
C2. How the accident happened
21. Was the plaintiff injured in an accident at work on 3 December 2010? I believe he was. The plaintiff did suffer a right toe injury on the day: he consulted Dr Kong Chi Ho on 3 December 2010 and Dr Kong’s notes recorded right big toe injury. It is unfortunate that the plaintiff did not make a contemporaneous report of the incident; and I have to say I did not find his evidence wholly accurate and reliable. His evidence is not free of inconsistencies, and his recollection appeared at times to be selective. But while there may be elements of embellishment and reconstruction in the plaintiff’s version of events (see below), I do not think he has entirely made up a story that he was injured while standing on the Tailgate on that day. The broad contours of his account at trial were consistent with the Incident Report, even though that was filed with the 1st defendant over 7 months after the accident.
22. Mr C K Wong who appeared for the 3rd defendant submitted that, if the plaintiff was injured by the pallet which moved while the Tailgate was being lowered, it was likely that the pallet simply jolted while the Tailgate was being lowered on an even level. I do not think this was likely. While one of the 1st defendant’s witnesses, Mr Law, accepted that the Tailgate could shake a little (「可能會搖一搖」) when it began to descend, there is nothing to indicate that the set-up was so inherently unstable and dangerous that normal descent would cause the cargo to fall sideways.
23. I accept that the Tailgate did unexpectedly slope downwards while the plaintiff was standing there and the pallet moved and pressed on to his right first and second toes.
24. There is no dispute that under normal operation, the Tailgate should not have sloped downwards before it was lowered to the ground. On the basis that in fact it did, and since it appears that there was no malfunction in the Tailgate, the probability is — and I infer — that Mr Chik inadvertently pressed the green button and both the second and third buttons on the left hand side control (instead of just the green and the third buttons).
25. I do not consider, however, that it was perceived to be a significant accident at the time, and I do not believe that Mr Chik became very worried or that he asked the plaintiff to record the accident in the Lorry’s logbook. Nor do I accept that the plaintiff’s colleague, whether it was Ms Tse or Ms Cheung, took any pictures at the scene. The plaintiff did not disclose any such photographs or any effort to obtain them. I doubt if a colleague (first stated in the Incident Report to be Ms Tse and then said in the plaintiff’s witness statement to be Ms Cheung) actually came out and saw the plaintiff sitting on the pavement. There was nothing in the plaintiff’s statement or supplemental statement about trying to ask the colleague to give evidence at all. It is also more likely that the matter was not reported to the district manager. The Form 2 (referred to in §32 below) stated that the plaintiff only reported the injury in July 2011. It was unlikely that if the district manager had instructed the plaintiff to report on the day of the accident, as the plaintiff claimed, he would not have done it.
26. I believe that Mr Chik, who gave his evidence in a straightforward manner, genuinely had no recollection of the incident, and was surprised when he heard in 2013 that the plaintiff had made a claim. This was probably due to the fact that at the time, it did not appear to him that the plaintiff suffered anything serious and so, with the lapse of time, the incident faded and eventually vanished in his memory.
C3. The injury to the plaintiff
27. The second question that arises in relation to the accident is: which part of the plaintiff’s right foot was crushed and injured? In particular, did the pallet press on the plaintiff’s right toes only or also on his right mid-foot? This issue is relevant to the question of causation of the condition called Mueller-Weiss Syndrome.
28. It is significant to note that when the plaintiff saw Dr Kong on 3 December 2010 and the next few days, the medical notes recorded right toe injury only. Dr Kong did not record any swelling, abrasion or bruising in the mid-foot area, whereas he noted carefully his observations on the big toe, drawing a diagram to indicate where the abrasion was. The sick leave certificates he gave the plaintiff for 3-5, 7-9 December 2010 were specified to be for right big toe injury. There was no complaint or observation recorded of any injury to the mid-foot dorsum; there were no findings of any swelling, bruises or abrasions to the navicular region.
29. As will be seen below, the plaintiff was subsequently, in September 2011, diagnosed with Mueller-Weiss Syndrome in his right foot which implied necrosis of the navicular bones. There is a dispute whether it was caused by the accident. The plaintiff’s orthopaedic expert, Dr Ko Put Shui Peter, proceeded on the basis that the plaintiff suffered a right foot crush injury on 3 December 2010 and opined that the condition was caused by the injury. However, as the 1st defendant’s orthopaedic expert, Dr Chun Siu Yeung, cogently observed in the supplemental joint report:
“ If the crushed [sic] injury occurred also to the mid and hind foot of such severity as to cause subsequent avascular necrosis of the navicular, there at that juncture, must have significant symptom of pain, swelling and signs of crush injury over the navicular region and the patient must have complained.”
This was further explained by Dr Chun in comments quoted in §93 below.
30. Later in December 2010, Dr Kong noted more generically “R foot pain” and “R ankle pain”, but as Dr Chun noted, Dr Kong also noted flat foot on 14 December 2010. Also, as mentioned below, the plaintiff admitted in cross-examination that his ankle was not sprained in the accident. The plaintiff has not secured Dr Kong’s notes prior to December 2010 or the X-ray results taken in December 2010 before they became apparently unavailable.
31. The Incident Report compiled by the plaintiff on 11 July 2011 also only stated his toe(s) were caught under the pallet (see §16 above). In the box “Particulars of Injury”, the plaintiff specifically filled in “右腳趾” (right toe(s)). According to the plaintiff, the Incident Report was filed because by then he considered it was a serious matter which warranted a formal report of injury at work. Initially in his oral evidence he said the Incident Report was filed after he consulted Dr Dicky Lam, but this was shown to be incorrect as he first consulted Dr Lam in September 2011. The plaintiff did however have an MRI scan of the right foot on 15 July 2011. The Incident Report was therefore a significant document compiled at around a time when the plaintiff was concerned to investigate his condition and in which one would expect the plaintiff to have stated the injury accurately.
32. The notice sent by the 1st defendant as the plaintiff’s employer to the Labour Department on 28 July 2011, using Form 2 under the Employees’ Compensation Ordinance (Cap 282), more specifically stated “遭卡板壓傷右腳的大拇指” (right big toe was pressed and injured by pallet). As Mr Lim accepted,[4] this description could only have come from the plaintiff.
33. On 29 July 2011, the plaintiff consulted an orthopaedic specialist, Dr Edmond Wong. According to the history taken by the doctor, as stated in his report, the plaintiff’s “right big toe was hit by heavy object and then he sprained his right ankle”. There was no mention of his right mid-foot being hit. Further, in cross-examination, the plaintiff said he did not sprain his ankle in the accident on 3 December 2010. It was unclear, if the plaintiff did sprain his ankle, when and where he did so. It appears that the plaintiff told his psychiatrist Dr Chiu that he suffered “right ankle injury” from the accident. These inconsistencies have undermined the reliability of the plaintiff’s evidence on the nature of the actual injury.
34. On 8 September 2011, the plaintiff first saw Dr Dicky Lam. It appears that the medical notes taken by the doctor at first stated “Rt big toe 2nd toe crush by a tray of goods in Park’n Shop” but, as pointed out by Dr Chun,[5] the words “and midfoot” were added after the sentence was first written. Also, the notes originally recorded “Sustain abrasion big and 2nd toe”, but the words “skin” and “dorsum” were added after the clause was written. There is no explanation of these amendments despite Dr Chun’s observation, and it is not clear when these words were added and whether they were added after the diagnosis of Mueller-Weiss Syndrome was made at the consultation. It is clear from Dr Lam’s report dated 22 March 2012 that, by then, the plaintiff was alleging that the mid-foot of his right foot had also been crushed by the pallet in the accident. This, however, post-dated Dr Lam’s diagnosis of collapse of the navicular and Mueller-Weiss Syndrome, and can be accorded little weight. There is also no explanation as to how the mid-foot and the toes both came to be injured by the pallet.
35. It may be noted that even the Statement of Clam, first filed in December 2014, specifically pleaded that as a result of the accident, the plaintiff “suffered injury to his right big toe and second toe”.[6]
36. I find the plaintiff’s evidence on the extent of the impact and injury unreliable. In my judgment, on balance, more likely than not, during the accident the plaintiff suffered direct trauma to his right big toe and probably the other toes, but not the right dorsum mid-foot.
D. Breach of duty by the 3rd defendant
37. On behalf of the 3rd defendant Mr Wong accepted that if it was found that Mr Chik pressed the buttons causing the Tailgate to tilt at the time, then he had to be held to have been negligent. On that basis, there is likewise no dispute that the 3rd defendant, as Mr Chik’s employer, is vicariously liable for his negligence. It follows from the findings above that the 3rd defendant is liable in tort to the plaintiff.
E. Breach of duty by the 1s defendant
38. The plaintiff contends that the 1st defendant also owed him various duties under the contract of employment, common law, the Occupiers Liability Ordinance (Cap 314), Occupational Safety and Health Ordinance (Cap 509) and Occupational Safety and Health Regulation (Cap 509A), which were breached by the 1st defendant. The case is put in several slightly different ways in the Amended Statement of Claim but essentially boils down to the allegation that the 1st defendant failed to provide the plaintiff with a safe system of work. Mr Patrick Lim who appeared for the plaintiff submitted that accidental tilting of the tailgate of a delivery lorry was a foreseeable risk and, in particular, contended that the 1st defendant fell short of its duty in two respects.
(1) First, he submitted that the 1st defendant had not taken steps to ensure that the laden pallet jack would have its internal pressure released so that the pallet would rest on the Tailgate before it was lowered.
(2) Secondly, it was submitted that the 1st defendant failed to ensure there were two workers doing the unloading work. Counsel suggested a method of unloading involving two persons: one person goes inside the goods compartment of the Lorry and moves the pallets of goods onto the Tailgate, using the jack. Once the laden jack is parked on the Tailgate, this person moves back inside the cargo hold. The Tailgate is then lowered to the ground. Another workman at the ground then pulls the laden pallet jack off the Tailgate and moves it into the Store. It was submitted that this would be a safer system.
39. With regard to first point, there is a lever on the stem of the jack, within the circle formed by the rounded pull handle. To begin moving pallets, the lever is moved up to release the hydraulic pressure so that the prongs are lowered and can be inserted under the pallet. The lever is then switched down and the stem is pulled towards the operator repeatedly to jack up prongs and the pallet. After the laden jack is moved to the desired location, the lever is switched up again to release the hydraulic pressure and lower the prongs of the jack and, with them, the cargo.
40. It is common ground that it would be safer if, after a laden jack is placed on the Tailgate, its hydraulic pressure is released so that the prongs are lowered and the pallet is made to touch down and rest on the Tailgate. The issue is whether the 1st defendant had taken adequate steps to bring this to the attention of its workers who had to operate pallet jacks, and in particular, the plaintiff, so as to ensure they follow this procedure.
41. The 1st defendant relied on the following statement in its safety guidelines:
「 手唧車升起及固定位置後要將手掣撥回原處」
“ (After the jack is raised and its position fixed, the handle (lever) has to be moved to its original position)”
42. This sentence is in my view ambiguous. While I accept it can be a reference to moving the lever of the jack so as to release its hydraulic pressure, it is far from clear.
43. The 1st defendant’s witness, Mr Law Tak Ming, said that store managers were told how to operate pallet jacks in workshops, though he accepted he had not attended any such workshop together with the plaintiff. This evidence is indirect and far from cogent. The plaintiff denied he had been specifically taught this, and said that in his entire experience he had never pulled up the lever to release the pressure and lower the jack’s prongs on a tailgate. I note that in the Incident Report the plaintiff claimed he was preparing to release and lower the jack when the accident happened, and when asked about that, the plaintiff made a long pause before disagreeing that it meant releasing the pressure to lower the prongs. It seems to me this shows that the plaintiff knew it could be done, and indeed he admitted that even without being told he could see it was safer to release the pressure. But I do not think the evidence shows that 1st defendant had brought home to its employees the importance of this step. Overall I take the view that the 1st defendant had not taken adequate steps to give clear instructions to ensure that the jack’s prongs and the laden pallet would be lowered to rest on the tailgate of the delivery lorry during loading and unloading operations.
44. With regard to the method of having two workers unload the goods at the same time, Mr Dennis Law, who appeared for the 1st defendant, took an objection. He submitted, correctly in my view, that there was no complaint in the plaintiff’s pleading or witness statement that it was negligent to have a system that required the plaintiff to stand on the Tailgate. The Amended Statement of Claim, in terms of particulars of negligence or breach of duty, complained about permitting or requiring the plaintiff to stand close to the pallet jack,[7] failing to provide sufficient manpower so that the pallet jack could be positioned to allow sufficient space for the plaintiff to stand on the Tailgate,[8] and causing or permitting the plaintiff to stand near the pallet jack.[9] The plaintiff’s witness statement said that if there was another colleague to assist in unloading, then even if the Tailgate tilted, they might together be able to support the goods which would not then press on his foot. This was also the plaintiff’s own understanding as was evident from his answers in cross-examination by the 1st defendant’s counsel. So the plaintiff’s own case was a system where both workers would stand on the tailgate. There was no suggestion there of a system of allowing the laden jack to descend with the tailgate with no worker on the Tailgate. Even the plaintiff’s written opening appears to have suggested that in the safer system, the Tailgate would still be lowered “with a passenger”.[10] It was only during the plaintiff’s cross-examination that the plaintiff’s counsel said the relevant sentence should read “without a passenger”.
45. Furthermore, I have doubts whether Mr Lim’s proposed method is really safer overall. Of course, if one worker remains in the cargo hold and one stands on the ground but at a sufficient distance away, then even if the goods and the jack collapsed and fell down from the tailgate, they would not be hurt. This explains why the 1st defendant’s witness, Mr Law Tak Ming, agreed this method was bound to be safer, which, in the context, meant safer to the workers. But in the crowded roadsides in Hong Kong where loading and unloading frequently takes place, it seems to me it could cause considerable danger to other road users and passers-by for loaded pallets and jacks to be lowered on the tailboards of goods vehicles without any accompanying worker. Further, is it realistic to expect that one of the workers would simply wait in the cargo hold while the other worker takes the jack laden with goods into the shop, unloads, and returns with the empty jack? Would this not instead lead to workers going up and down the tailgate more often? Would some of them even be tempted to skip the tailgate and climb or jump down instead?
46. Legislation such as s 6(2)(a) of the Occupational Safety and Health Ordinance requires the employer to provide systems of work that are, “so far as reasonably practicable”, safe. This cannot be properly assessed by taking a blinkered view looking solely at the risk of the accident that happened, oblivious to other considerations including the risks of other types of accidents and concerns for public safety. Because of the way in which this method was raised by the plaintiff’s counsel, however, there was simply no opportunity for the 1st defendant properly to investigate and respond, and these wider aspects are left unconsidered. Accordingly the 1st defendant’s objection should in my view be upheld.
47. As to the plaintiff’s own suggestion that there should be two workers and both workers should stand on the Tailgate with the laden jack when it is being lowered, on the plaintiff’s evidence he is unable to show that this would be likely to have prevented an accident of the kind that took place. Nor did Mr Lim advance any submissions how this could have avoided the accident or injury.
48. There were some other allegations pleaded by the plaintiff such as overloading of the pallet which were ultimately not pursued and therefore need not be dealt with.
49. Accordingly, I find that the plaintiff has established that the 1st defendant breached its own duty by failing to provide a safe system of work, by failing to give clear instructions to ensure that the jack’s prongs and laden pallet should be lowered before the tailboard was moved.
F. Vicarious liability of the 1st defendant for the acts of Chik
50. The plaintiff contends that, irrespective of the 1st defendant’s own duties to the plaintiff, it is vicariously liable for the acts of the 3rd defendant or its servant Mr Chik. The ground for this contention is that, it is said, the activity of delivery by the 3rd defendant of goods using the Lorry to various Park’n Shop stores was integral to the 1st defendant’s business activities, and that by engaging or permitting its related company to engage the 3rd defendant to make delivery by means of the Lorry, the 1st defendant had created a risk of the tort being committed by the 3rd defendant or its servants.
51. The 1st defendant denies it is so liable. The 3rd defendant, constrained by its pleading,[11] also denies that the 1st defendant is vicariously liable for the acts of Mr Chik.
52. The primary authority relied upon by the plaintiff is Cox v Ministry of Justice [2016] AC 660. Cox is an English case about the government’s liability for the injury suffered by a catering manager working in a prison, when a prisoner, who was on prison service pay working in the kitchen, negligently dropped a sack of rice on her back. Since the prisoners were bound to the prison service not by contract but by their sentences (with nominal wages), they were not the employees of the prison service. The broad issue that arose was whether in the absence of an employment relationship, the prison service could nevertheless be made vicariously liable for the negligence of the prisoner in question. The UK Supreme Court held that the prison service was liable. In his judgment (with which the other judges agreed) at §19, Lord Reed JSC referred to the following policy reasons enumerated by Lord Phillips PSC in the “Christian Brothers” case [2013] 2 AC 1 at §35:
“ There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”
Lord Phillips added at §47:
“ At para 35 above, I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant. Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is ‘akin to that between an employer and an employee’.”
53. As to the first factor, Lord Reed said it was “unlikely to be of independent significance in most cases” (§20). The fifth factor has also lost much of its significance, although “the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability” (§21). The “vestigial degree of control” appears to be a reference to an earlier sentence which stated that the significance of control is that the defendant can direct what the tortfeasor does, not how he does it.
54. At §24, Lord Reed said:
“ The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.”
55. However, at §29, Lord Reed said this approach:
“ Results in an extension of the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasor’s activities are entirely attributable to the conduct of a recognisably independent business of his own or of a third party.”
56. In Armes v Nottinghamshire County Council [2017] UKSC 60, which concerned whether a local authority was vicariously liable for the child abuse committed by foster parents, Lord Reed said that the doctrine of vicarious liability “can also apply where the relationship has certain characteristics similar to those found in employment” (see §54). In the authorities the question is sometimes put as whether the relationship is “akin” to employment: see eg Kafagi v JBW Group Ltd [2018] EWCA Civ 1157, at §56; the Christian Brothers case, at §47.
57. Mr Lim submitted for the plaintiff that Mr Chik’s acts were an integral part of business activities carried on by the 1st defendant and that his negligence was a risk created by the 1st defendant by assigning those activities to the 3rd defendant.
58. In riposte, Mr Law for the 1st defendant submitted that the 3rd defendant operated as a separate independent business on its own account and for its own benefit, and employed its own staff including Mr Chik who worked for the benefit of the 3rd defendant. Mr Chik’s actions were done in the course of his employment with the 3rd defendant. It was the sole obligation of the 3rd defendant as his employer to remunerate him for his work, and it was the 3rd defendant as his employer who assigned work to Mr Chik including on the day of the accident.
59. In fact, delivery of goods from the distribution centres to the individual Park’n Shop supermarkets was previously carried out by Park’n Shop’s (or the Watsons group’s) own feet of vehicles driven by their own employed drivers. In late 2007, the employment of all these drivers was terminated and independent contractors were engaged to perform the delivery work instead. Mr Chik was one of these dismissed drivers. By 2010, Park’n Shop no longer employed any delivery driver.
60. At the material time, the 3rd defendant was one of two similar delivery contractors for Park’n Shop. It was engaged by Park’n Shop to provide goods delivery service from its Shatin and Kwai Chung distribution centres to various supermarkets including the Store. Before engaging the 3rd defendant, Mr Ho Sin Hang, the 1st defendant’s distribution centre manager, assessed its suitability and reviewed the particulars of the drivers and their training records. There is no complaint that the 1st defendant was negligent in selecting and appointing the 3rd defendant, or in permitting it to be selected and appointed, to make delivery for its supermarkets.
61. The Service Agreement was entered into between Park’n Shop (as a division of the 2nd defendant) and the 3rd defendant. The precise relationship between the 1st and 2nd defendants and Park’n Shop is not entirely clear but is not material. For present purposes I shall simply refer to the entity that engaged the 3rd defendant as “Park’n Shop”. The agreement provided:
“ 1. RECITALS
A. PNS wishes to engage the Contractor for the Provision of Transportation service in its distribution centres (SDC & HIDC).
B. The Contractor has agreed to provide the services on the terms and conditions of this Agreement.
2. SERVICES TO BE PERFORMED
2.1 The Contractor shall provide transportation services to PNS and the services as listed in schedule 1 hereto under the heading “Scope of Service” (“Services”) with its service standard prescribed in schedule 1 hereto under the heading “Service Standard”.
3. PAYMENTS
3.1 PNS shall pay the Contractor the service fee (“Service Fee”) set out in the schedule 2 in consideration of the performance by the Contractor of the Services. The payment will be settled within 45 days upon receipt of the payment invoice with supporting documents from the Contractor.
3.2 PNS shall pay the Contractor for parking and tunnel fees (if any) incurred as assigned. The Contractor shall produce relevant receipts or written evidence of the parking fees and tunnel fees. The Service Fee is inclusive of all costs and expenses of the Contractor whether foreseen or unforeseen, including without limitation, insurance, duties, taxes (if any) which shall be paid by the Contractor.
…
5. EMPLOYEES OF CONTRACTOR
5.1 The Contractor is the employer of all the workers engaged in providing the Services to PNS (“Workers”) and PNS shall in no way be responsible for the same.
The Contractor shall be responsible for all obligations and liabilities (including without limitation salaries, MPF contributions and other emoluments) of such Workers. The Contractor shall comply with all its legal duties and obligations towards the Workers (including obtaining all necessary insurances) and shall not act or fail to act in such a way so as to infringe or breach any statutory, contractual or other legal right of any Worker.
5.2 The Contractor shall ensure that all Workers supplied pursuant to this Agreement are suitably qualified, and are competent persons to carry out the requisite tasks to a satisfactory standard.
5.3 The Contractor shall, at the written request of PNS, immediately cease to provide in connection with the Services any Worker who, in the reasonable opinion of PNS, is unsuitable, undesirable, and/or falls short of the standards reasonably expected by PNS of its own personnel.
5.4 The Contractor shall make sure that all of its Workers while attending PNS Distribution Centres (“Premises”):
a. carry and keep visible suitable means of identification;
b. comply with PNS’s reasonable regulations applying to conduct at the Premises;
c. comply with lawful directions given by authorised personnel of the A.S. Watson Group relating to conduct on the Premises; and
d. do not interfere with the carrying out by PNS of its duties.
The Contractor shall be liable for any and all damage caused to the Premises by its Workers.
5.5 The Contractor is not allowed to sub-contract any or all of the services to any third party without the prior written consent of PNS. The Contractor agrees and warrants that all workers engaged in providing the service to PNS are the direct employees of the Contractor but not “self-employed” individuals.
6. WARRANTY AND INDEMNITY
…
6.2 Should PNS or its employees sustain any loss or liability, costs (including legal costs) or damages as a result of the Contractor’s breach of this Agreement, the Contractor shall indemnify PNS in full.
6.3 The Contractor will indemnify PNS against all costs, expenses and liabilities incurred by PNS arising from any actual or threatened claim by any Worker under any employment legislation.
7. USE OF PNS PROVIDED VEHICLE
7.1.1 PNS will provide vehicles for the Contractor to perform delivery services.
7.1.2 The vehicles provided by PNS for the Contractor should be used in operations related to PNS only. The Contractor should not use the PNS vehicles in any other operations without the prior written consent by PNS.
7.1.3 The Contractor should ensure that the vehicle is used and operated in a proper and skillful manner and only by persons having the valid driving license, skills and experience in the use and operation of the vehicles.
7.1.4 The Contractor should take proper care of the vehicles and ensure that it is kept clean and safely and returned to PNS warehouse after delivery each day and allow PNS or its agents at all reasonable times access to the vehicles for the purpose of examining the condition.
7.1.5 The Contractor should not modify any part of vehicles without the prior written consent by PNS.
7.1.6 In case of vehicle breakdown, PNS should provide backup vehicle for the Contractor during the vehicle breakdown period.
7.1.7 For any repairing cost including but not limited to parts and labour incur because of accidental damage to the vehicles, the Contractor should indemnify PNS at a reasonable cost.
8. MISCELLANEOUS PROVISIONS
…
Insurance
The Contractor shall maintain adequate insurance cover with a reputable insurer in relation to (i) the Services to be delivered to PNS; (ii) employees’ compensation; and (iii) third party liability. The Contractor shall fully indemnify PNS in the event that PNS is claimed by any agent or employee of the Contractor or any third party in relation to traffic accident or for any loss or damage or personal injury caused by the Contractor unless such claim is caused by the fault or negligence of PNS.
…
Relationship between the parties
Each party if an independent contractor and as such will not have any authority to bind or commit the other party. Nothing in this Agreement will be deemed or construed to create a joint venture, partnership or agency relationship between the parties for any purpose.”
62. The evidence shows:
(1) The Service Agreement provided that Park’n Shop was to provide the vehicles for use by the 3rd defendant — these were lorries marked with “Park’n Shop”, which had remained from the time before 2008 when Park’n Shop did its own delivery. In 2010, there were about 18 to 20 Park’n Shop lorries available for use by the 3rd defendant. The 3rd defendant could not use these lorries for other business. For these vehicles, Park’n Shop was responsible for maintenance and repair, fuel, vehicle registration and vehicle insurance.
(2) The 3rd defendant also had its own fleet of over 20 lorries (not marked with any Park’n Shop names or logos) and as in practice not enough Park’n Shop vehicles were available, the 3rd defendant would also use its own vehicles to make delivery for Park’n Shop (at a higher fee for the 3rd defendant). The 3rd defendant could use these vehicles (but not Park’n Shop lorries) for delivery work for other customers where it had spare capacity, although it could not combine such delivery with Park’n Shop goods in the same lorry. For these vehicles, the 3rd defendant was itself responsible for the cost of maintenance and repair, fuel, vehicle registration and vehicle insurance.
(3) The staff and drivers of the 3rd defendant wore uniform of the 3rd defendant, not Park’n Shop uniform. They did not have any staff identification card of Park’n Shop.
(4) On average there were about 60 to 80 delivery round trips every day and each vehicle had to do about 2 to 3.
(5) When not in use, Park’n Shop lorries would be parked at the distribution centres. The 3rd defendant’s own lorries could not be parked there except for pre-loading.
(6) Mr Ho, an assistant distribution centre manager at the time, would together with his colleagues plan the combination of stores and delivery sequence, and liaise with the 3rd defendant’s representative stationed at the distribution centre with regard to the routes, the goods and the required number of vehicles.
(7) It was for the 3rd defendant to arrange work for its own drivers. The instructions to the drivers were given through the 3rd defendant’s representative. The drivers did not attend Park’n Shop’s internal meetings, nor did Park’n Shop’s staff attend the meetings between the drivers and the 3rd defendant’s representative.
(8) As provided in the Service Agreement, Park’n Shop was responsible and would reimburse the 3rd defendant for tunnel tolls incurred on the delivery routes. As for penalties for minor traffic offences, where they were caused by Park’n Shop (eg where Park’n Shop asked the vehicles to stop and unload at a prohibited location), Park’n Shop would pay the penalties, but otherwise the 3rd defendant would be responsible.
(9) Park’n Shop and the 3rd defendant held periodic meetings at management level to supervise the carrying out of the Service Agreement.
(10) The terms for the 3rd defendant’s remuneration were not disclosed in the evidence. According to Mr Ho, sometimes the payment was calculated on a per trip basis and sometimes by reference to the amount of goods delivered. In the latter case, the rate did not depend on whether Park’n Shop vehicles or the 3rd defendant’s own vehicles were used.
63. It appears that the new approach in Cox has not yet been applied in Hong Kong in any case to find a person vicariously liable for the acts of his independent contractor or of the contractor’s employees. In Tsoi Wing Yuk v Perfect Marble Co Ltd & another (unrep, HCPI 779/2012, 11 April 2016), a plaintiff, who was employed as a casual marble worker at a constructive site, contended that the site’s principal contractor and the marble works subcontractor were vicariously liable for the negligence of a co-worker. Deputy Judge Marlene Ng (as she then was) held that the plaintiff was not employed by either of those two defendants; neither defendant assigned any activity to the co-worker; and the works had been subcontracted downstream, so that the co-worker’s activities as marble worker employed by their common employer were attributable to the recognisably independent business of that employer for which he received a project fee.[12] Accordingly, even having regard to the decision in Cox, which post-dated the trial before her, the learned judge held that there was no vicarious liability on the part of the two defendants.
64. In Talat Zahid v Cheung Fat Metal Trading Co Ltd and others (unrep, HCPI 399 of 2012, 26 June 2017), the plaintiff was a general worker employed by a scrap metals trading company, the first defendant. The employer had subcontracted the work of loading and unloading scrap metals at a particular site to the third defendant who owned a crane truck and employed the driver of the truck, who was sued as the second defendant. When the plaintiff and the driver were unloading scrap metals, the driver pressed the wrong button so that, instead of moving upwards, the jib of the crane moved sideways, striking the plaintiff and causing him to fall from a platform onto the ground. Lok J held that the first defendant, as the plaintiff’s employer, had breached its duty to provide a safe place and system of work. It was however further argued by the plaintiff that the first defendant was vicariously liable for the tort committed by the second and third defendants. The learned judge had considerable reservation on this aspect of the plaintiff’s claim, and said:
“ As pointed out by the Supreme Court in Cox, it is a condition for vicarious liability that the actual tortfeasor was engaging in an activity undertaken by him “on behalf of the defendant”. Whilst it may be said that the prisoner in Cox was, at the time of the commission of the tort, engaging in activity undertaken on behalf of the Ministry of Justice, the 2nd Defendant, whilst working at Cha Kwo Ling PCWA, was engaging in activities on behalf of the 3rd Defendant and not the 1st Defendant. If Mr Lin’s argument is correct, it would virtually mean that the principal contractor in a construction site would be vicariously liable for any tort committed by an employee of its sub-contractor, because the employee was engaging in activity on behalf of the principal contractor. This simply cannot be right. That particular employee should not be said to be engaged in activity undertaken by him on behalf of the principal contractor.”
65. In Chan Cho Tak v Ng Shing Leung [2018] HKCFI 1284, Deputy Judge Kent Yee referred to Cox in finding vicarious liability on the part of the 2nd defendant[13] but since it was held that the tortfeasor (the 1st defendant) was the employee of the 2nd defendant, it was simply a finding on the classic basis of vicarious liability.
66. The law in Hong Kong, as hitherto understood, has been that a person is not vicariously liable for the tort of his independent contractor or the independent contractor’s employee. In Luen Hing Fat Coating & Fishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14, Bokhary PJ said (at §20):
“ A person is not vicariously liable for his independent contractor’s torts. But that only goes to the absence of vicarious liability. A person who engages an independent contractor may be liable for, as it is put in Winfield & Jolowicz on Tort, 18th ed. (2010) at p.978, “his own negligence, for example in failing to take care to select a competent contractor”. His having engaged an independent contractor does not exclude the possibility of his committing the tort of negligence himself.”
67. Similarly, in Li Ming Tak v Hong Kong Airport Services Ltd [2015] 4 HKLRD 749, Poon J (as he then was), giving the judgment of the Court of Appeal, referred (at §40) with approval to the passage in Charlesworth & Percy on Negligence (13th ed) which stated that “an employer is not vicariously liable for the negligence of an independent contractor, his workmen or agents in the execution of work contracted for”, and held (at §47) that the plaintiff failed in that case because the tortfeasor was an independent medical practitioner who was not employed by the plaintiff.
68. It is clear that the application of the approach in Cox in a case such as the present to find vicarious liability on the part of the 1st defendant for the tort committed by Mr Chik would be a major change in the law. It would render the distinction between an employee and an independent contractor far less significant, if not altogether obsolete, as illustrated by the English Court of Appeal’s decision in Barclays Bank plc v Various Claimants [2018] EWCA Civ 1670, in which, on the trial of a preliminary issue, the bank was held to be vicariously liable for any sexual assaults perpetrated by a doctor in the course of medical examinations carried out at the request of the bank either before or during the claimants’ employment with the bank. As Irwin LJ said in that case (see §§44-45), the question “was the alleged tortfeasor an independent contractor?” is no longer the test; “there will indeed be cases of independent contractors where vicarious liability will be established”.
69. Given the existing state of the law in Hong Kong as has been applied at the highest levels, I have some doubt whether it is open to the Court of First Instance to follow the Cox line of authorities and expand the scope of vicarious liability in this fundamental way. This question was not addressed by counsel.
70. Nor has the court been equipped with information about how the insurance system would work under the new approach and what the implications might be. It is undeniable that the law in this area may be influenced by considerations of risk allocation and in particular who would be best placed to insure against the relevant risks.
71. Even on the basis of the Cox approach, on the facts of this case there are serious arguments that the 1st defendant is not vicariously liable for the tort of Mr Chik. Mr Chik was employed by the 3rd defendant. The 3rd defendant was a separate company and a separate business, with its own management, its own fleet of over 20 vehicles and its own staff. In addition to the Service Agreement with Park’n Shop, the 3rd defendant had other customers and took other transportation orders. Mr Chik and the other drivers wore the 3rd defendant’s uniform. They took instructions from the 3rd defendant, not from Park’n Shop. It is true that Park’n Shop decided which stores would be included for each particular trip and the sequence of delivery, but it was the 3rd defendant that decided which vehicle would be used and which driver would drive it. It was the 3rd defendant, not the 1st defendant, that had control over Mr Chik. The conditions of employment of Mr Chik including his working hours were determined by the 3rd defendant.
72. Given my ultimate conclusions in the present case, however, the question whether the 1st defendant is vicariously liable for Mr Chik’s tort is academic. As such this is plainly not an appropriate case in which to consider expanding the law of vicarious liability.
G. Contributory negligence of the plaintiff
73. Both defendants contend that the plaintiff was contributorily negligent in two respects.
G1. Safety shoes
74. First, the plaintiff did not wear safety shoes when unloading the goods on the day. The 1st defendant had arranged for its staff to purchase safety shoes (at the employee’s own cost at $160 per pair). The plaintiff had actually purchased a pair, which he kept in his locker at the Store. He admitted, however, that he did not wear them because he found them uncomfortable.
75. The 1st defendant’s safety guidelines stated:
「 四. 個人防護裝備
…
2. 安全鞋（負責起卸及搬運的員工必須穿著，有良好防滑，預防壓傷或撞傷）。」
「 八. 載貨工具
…
2. 必須穿著性能良好的安全鞋，以防跣倒或被車輪壓傷/撞傷腳部。」
「 十. 落貨
1. 必須使用合適而性能良好的個人防護裝備，如安全鞋、適當手套及反光衣等。」
In English translation:
“ IV. Personal protection equipment
…
2. Safety shoes (which workers responsible for loading and moving and delivering goods must wear, being effective in slip proof, preventing crush injury or contusion injury).”
“ VIII. Goods carrying tool
…
2. Must wear high-performance safety shoes to prevent slipping or foot being crushed / hit by tyre.”
“ X. Unloading
1. Must use suitable and high-performance personal protection equipment, such as safety shoes, suitable gloves, reflective vests and so on.”
76. Mr Lim submitted that there was no strict instruction from the 1st defendant for store managers to wear safety shoes and that it was left to the managers to decide. It was true that store managers, as such, were not required to wear safety shoes. But the instruction was that those who handled the loading and unloading of goods should wear them. This was made clear in an e-mail dated 6 November 2007 to all store managers, which asked them to guide and urge all employees required to load or unload goods to wear safety shoes. An e-mail of 25 March 2008 to store managers said staff responsible for loading and unloading must purchase safety shoes (while managers and other staff had an option). An e-mail of 28 March 2008 to all store managers and staff stated that staff handling loading and unloading must have a pair of safety shoes. An e-mail of 31 March 2010 to all stores informed the staff that a supplier of safety shoes would come to the stores to make measurements for staff who wanted to purchase them, and that employees (especially unloading staff and meat counter staff) were encouraged to wear safety shoes. Thus, although the plaintiff was a store manager, it was plainly the 1st defendant’s instruction and policy that when he was handling unloading work, he should wear safety shoes.
77. Mr Lim submitted that even if safety shoes were worn, there might still be injury. I accept this residual risk cannot be ruled out, as shown by an incident mentioned in the meeting on 23 March 2010 of the Retail Operations Occupational Safety and Health Committee of the 1st defendant. However, these shoes had a steel toe cap in the front which would obviously afford some protection to the toes. The evidence is that the shoes met the EN ISO 20345 standard for safety footwear. While it is not clear how far the protective cap extended up the foot, this is not material given my finding that only the plaintiff’s toes were injured in the accident.
78. In these circumstances, I accept the defendants’ submission that the plaintiff was contributorily negligent in failing to put on the safety shoes that he had in the Store when he did the unloading work on 3 December 2010.
G2. Releasing the hydraulic pressure of the jack
79. Secondly, the defendants rely on the fact that the plaintiff did not release the hydraulic pressure and lower the prongs and the pallet on the Tailgate before telling the driver to lower it.
80. Mr Lim relied on the evidence that the plaintiff had never experienced any tilting of the platform in mid-air and submitted that there was no cause for the plaintiff to take that course. However, the plaintiff said in his evidence that he had seen the platform tilt before (though not when he was standing on it). The “cost” of the measure was simply that the prongs have to be jacked up again when the platform has reached the ground.
81. It seems to me when the Tailgate was being lowered, it was obviously more dangerous to let the pallet of goods rest only on the jack, which had wheels and a smaller footprint than the pallet, than to release the prongs and rest the pallet on the platform. Indeed, the plaintiff accepted under cross-examination on behalf of the 3rd defendant that even without being told, anyone could see that it would be a safer course. He also admitted that if he had taken this step, his injuries would have been avoided. While the court is generally less ready to find contributory negligence where there is a breach of statutory duty by the defendant (see eg Lam Cheuk Leung v Erawan Co Ltd & Others [2004] 1 HKLRD 778), given that the plaintiff was himself aware of the desirability of the step which the 1st defendant failed to take adequate action to ensure, I consider that the plaintiff was also contributorily negligent in this respect.
G3. Overall assessment
82. Overall I consider it just and appropriate to attribute to the plaintiff 25% of the responsibility for the injury on account of his contributory negligence.
H. Apportionment between the 1st and 3rd defendants, and the 1st defendant’s claim for contribution against the 3rd defendant.
83. On the basis of the above findings, I would apportion responsibility as between the 1st and 3rd defendants in the proportion of one-third to two-thirds. The contribution is to be based on the amount of damages awarded to the plaintiff without deduction of the employees’ compensation paid: Cheng Wai Li v Far East Aluminium Works Co Ltd [2009] 1 HKLRD 161.
I. Quantum
84. The plaintiff was aged almost 47 at the time of the accident and about 55.5 by the time of this judgement.
85. The plaintiff’s claim for damages is divided into the following heads (and in the following amounts as stated in the plaintiff’s closing submissions):
(1) special damages (agreed at $40,000);
(2) pain, suffering and loss of amenities ($530,000);
(3) pre-trial loss of earnings and MPF ($506,481.96 up to end of sick leave on 13 April 2015, and $514,042.53 from 14 April 2015 to October 2018);
(4) future loss of earnings and MPF ($1,422,235.02);
(5) loss of earning capacity ($300,000);
(6) future medical expenses ($82,726).
86. It is agreed that tthe sum of $531,772 received by the plaintiff by way of employee’s compensation has to be given credit for.
Whether Mueller-Weiss Syndrome caused by accident
87. On 8 September 2011, the plaintiff consulted Dr Dicky Lam and was diagnosed to be suffering from Mueller-Weiss Syndrome, which represents osteonecrosis in the navicular presented in adults. Dr Lam’s report stated that the right foot’s navicular was deformed and became wedge-shaped. There was 60%-80% collapse in ⅔ lateral body of the bone. The collapsed portion of the navicular was fragmented with sclerotic change. The plaintiff was admitted to Hong Kong Baptist Hospital on 11 October 2011 for an operation (exploration reconstruction of the collapsed navicular with autologous iliac crest bone and talo-navicular fusion) and was discharged on 15 October 2011. Dr Lam considered the operation a success.
88. An overarching question in relation to quantum is whether the Mueller-Weiss Syndrome was caused by the accident. On this question there is marked disagreement between the plaintiff’s expert, Dr Ko, and the 1st defendant’s expert, Dr Chun, as appears from their joint report dated 12 November 2015. Their evidence is complicated by a deficiency in the documents provided by the plaintiff to them. The radiologist’s report based on the MRI scan on 15 July 2011 was given to the experts, which stated the plaintiff’s right foot to be normal without any avascular necrosis at all, but the MRI films were not supplied to the experts, and still were not supplied to the experts up to the trial even though their joint report suggested retrieving the MRI films. On the basis of the radiologist’s report alone, the argument could reasonably have been made that the Mueller-Weiss Syndrome first emerged long after the accident and was unrelated to it. It was only when the matter was raised by this court on the first day of trial that the plaintiff applied for a supplemental report to be sought from the experts based on the MRI films to be supplied to them. This was granted and the supplemental joint report was issued on 30 October 2018. In the supplemental report Dr Chun stated it would be useful to see the X-ray films taken of the plaintiff’s right foot in December 2010 as ordered by Dr Kong as well as Dr Kong’s medical notes prior to 3 December 2010 (as the plaintiff had consulted him at least since November 2010). At the trial, I gave leave for the parties to adduce a further supplemental joint orthopaedic expert report on such new materials as disclosed, but the plaintiff’s solicitors have since stated that the plaintiff (who apparently only then began to look for those documents) was unable to produce them. In these circumstances I have not acceded to the further requests, post-trial, from the 1st defendant for leave to adduce further medical reports.
89. In the first report, Dr Chun opined that if it was an injury only to the big toe (or even the 1st to 4th toes), it should not affect the vascularity of the navicular bone in the proximal mid-foot.[14] Further, he considered it highly unlikely for an injury as described by the plaintiff with such a short duration to have affected the blood supply to the navicular bone. He considered that the Mueller-Weiss Syndrome was of undetermined aetiology.
90. In the first report, Dr Ko opined that if the injury had occurred in the manner described by the plaintiff, the avascular necrosis of the navicular was consistent with the right foot crush injury he suffered on 3 December 2010. He said that the blood supply of the navicular was tenuous and that traumatic insult like the crush injury mechanism the plaintiff suffered would result in compromised blood supply and end up in osteonecrosis of the navicular. On this basis he considered there was reasonably good medical certainty that the alleged accident caused the avascular necrosis of the navicular.
91. In the supplemental report, the experts agreed that the MRI scan on 15 July 2011 obviously showed advanced (stage 4) avascular necrosis of the navicular bone, which was inexplicably missed by the radiologist who issued the MRI report. Dr Chun considered that the period of about 7 months from 3 December 2010 to 15 July 2011 was far too short for the development of avascular necrosis to such a stage in the absence of injury to the navicular region. He noted that the first documentation of foot pain in Dr Kong’s notes was 14 December 2010 when flat foot was already observed. Having regard to the absence of any symptoms and signs at the navicular region on 3 December 2010, he considered the plaintiff’s condition that ultimately manifested itself as Stage-4 Mueller-Weiss Syndrome was “much more likely” to be pre-existent.
92. Dr Ko opined that spontaneous osteonecrosis of the navicular was rare relative to the condition caused by secondary causes including rheumatoid arthritis, renal failure, SLE and trauma. Among them, trauma remains the most common mechanical cause of osteonecrosis throughout the body, particularly in the foot. As to the mechanism of traumatic impact, Dr Ko stated:
“ From the literat[ure], the traumatic insult interrupt[ed] blood supply and resulted in death of bone cells with different mechanism including: 1) mechanical vascular interruption; 2) thrombosis and embolism; 3) injury to or pressure on a vessel wall; 4) venous occlusion. Referring to the mechanism of injury that Mr Ho sustained to his right foot, the contusion mechanism would have resulted in the interruption/compromise of blood supply to the mid food bones with one or more of the above mechanism.”
93. In response to the passage quoted above from Dr Ko’s opinion, Dr Chun stated:
“ (a) Firstly the mechanical vascular interruption: Dr. Ko therefore suggests that the arterial blood flow to the navicular bone is blocked by mechanical factor. This mechanical factor would cause a pressure around that region greater that the arterial blood pressure in order to shut down the arterial blood flow to the said bone. Under such situation, there must be very gross swelling & bruising around the navicular and the whole foot. Under such the patient would be experiencing severe ischaemic pain around the whole foot with gross swelling but such clinical evidence to support Dr. Ko’s mechanical interruption of the blood supply is crystal clear to be absent. This proposed theory of mechanical interruption cannot stand.
(b) Secondly, thrombosis and embolism: Thrombosis & embolism can both occur in the arterial and venous system. If there was venous thrombosis in the veins draining the blood away from the bone this venous thrombosis again will cause interruption of venous flow around the foot again swelling of the foot will be noted and pain would be complained within 1-2 days after the thrombosis. With arterial thrombosis the arterial blood would not flow to the bone, severe ischaemic pain around the mid foot would have been reported and physical finding of swelling would have been detected from 3/12/2010 well before 14/12/2010.
(c) Thirdly Dr. Ko’s injury to or pressure to a vessel wall: If there was injury to a vessel, be it artery or vein, there would be bleeding from the injured vessel, and on 3/12/2010 it would be certain that there would be bruising and swelling of the foot and not just finding on the big toe. The ‘pressure to’ a blood vessel had been discussed on (a) above.
(d) Fourthly, venous occlusion can be due to external mechanical pressure, by big collection of haematoma with the pressure exceeded the venous pressure to cause Dr. Ko’s occlusion theory. Again there was no clinical signs and symptoms at all from day 1 of injury to the 14/12/2010 first documentation of foot pain, yet no swelling or bruising of the foot being noted.
Therefore Dr. Ko’s blood supply depletion theory due to the alleged trauma cannot stand at all in the absence of any of the clinical features of such vascular derangement.”
94. With regard to traumatic injury, Dr Ko wrote:
“ The trauma to the navicular injuries ranges in severity from small avulsions to highly comminuted fractures. Since the initial trauma/injury could be mild, symptoms can arise at a variable period which is dependent on the later development of bone collapse, alteration of anatomy and subsequent deformity. That is the reason why it is reported that the rate of progression of the disease is unpredictable, as is the degree of its devastation.”
95. However, Dr Chun stated that even the suggested small avulsions “would certainly have caused pain and swelling & bruising” and that while the literature suggested that fracture of the navicular represented the most common aetiology of osteonecrosis, there was no clinical evidence in this case of such fracture or of any injury to cause interruption of blood supply to the navicular at any time around 3 December 2010.
96. The treating doctor, Dr Lam, stated that 50% of the cases of Mueller-Weiss Syndrome are reported to have a history of trauma, but in 50% of the cases the syndrome is reported to have developed on its own.
97. It can be seen that Dr Ko’s opinion on the cause of the Mueller-Weiss Syndrome critically depended on the factual account of the plaintiff that he had suffered a crush injury to his right mid-foot dorsum. Dr Ko was not instructed to and did not offer any explanation that the syndrome could have been caused by trauma to the toes only. There is no suggestion in the literature produced that trauma to the toes (which seem widely separated from the navicular) can cause navicular necrosis. Nor did Dr Ko offer any convincing explanation, in my view, as to how there could have been traumatic injury to the navicular region without any symptoms of pain, swelling, bruises or tenderness in that region upon presentation on the day or the next few days when the plaintiff consulted Dr Kong.
98. I find Dr Chun’s opinion on this to be cogent and compelling. Nevertheless I bear in mind that the exercise of finding causation of a medical condition for the purpose of a claim for damages is a different one from the clinical science of aetiology. As Hunter JA said in Lee Kin-kai, a patient, by his father and next friend Li Wah v Ocean Tramping Co Ltd trading as Ocean Tramping Workshop (unrep, CACV 64/1989, 31 January 1990), “there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury”; “it need not be shown to be the sole cause”.
99. On the factual and medical evidence, and having regard to my findings about the actual injury the plaintiff suffered from the accident, the conclusion seems to me inescapable that the plaintiff has failed to show that the Mueller-Weiss Syndrome in his right foot was caused by or related to the accident. Nor is there any basis to conclude that the accident triggered or aggravated a pre-existing condition, or any suggestion from the plaintiff to that effect. I accept Dr Chun’s diagnosis of right big toe contusion.
The plaintiff’s psychiatric condition
100. There is also evidence on the plaintiff’s psychiatric condition. There is no dispute that the plaintiff had a pre-existing condition, which was diagnosed as at September 2010 as “depressive disorder”. The psychiatric experts, who assessed the plaintiff jointly in May 2015, are in disagreement as to the plaintiff’s subsequent condition and whether it was caused by the accident. Dr Yu, the 1st defendant’s expert, opined that the plaintiff had provided exaggerated descriptions of mental symptoms, that there appeared to be no impact from the accident on the plaintiff, and that he was likely having very mild symptoms of adjustment disorder only. Dr Ho, the plaintiff’s expert, diagnosed the plaintiff with adjustment disorder with depressed mood, and took the view that it was unlikely the plaintiff had exaggerated his mental symptoms and that even if he had, the extent of exaggeration was likely to be mild.
101. It is significant that the plaintiff’s treating psychiatrist, Dr Chiu, noted on 29 December 2010 that the plaintiff was “very well, no discomfort, slept well, mood stable, no worries, no suicidal idea, working well”. Dr Chiu’s notes thereafter recorded similar findings until January 2013. The treatment given after the accident was the same as before. On this basis, and in light of the finding that the Mueller-Weiss Syndrome was not shown to have been caused by the accident, I prefer Dr Yu’s findings that there was no significant psychiatric damage caused by the accident.
Special Damages
102. Special damages have been agreed at $40,000, inclusive of medical expenses, travelling expenses, tonic food, orthotics and walking stick.
Pain, Suffering and Loss of Amenities
103. Mr Lim submitted that having regard to the physical injury, the impairment, the probable future problems with degenerative arthritis or collapse and psychiatric condition, the injury is at the bottom of the “serious” injury category as defined in Lee Ting Lam v Leung Kam Ming, an infant by his next friend Leung Shu-wing [1980] HKLR 657. Based on the new starting point of $530,000 for that category,[15] he invited this court to award that amount.
104. The plaintiff did not make submission on the award for PSLA on the basis of a big toe injury. As submitted by Mr Wong for the 3rd defendant, it appears from Leung Hoi Wai v Po Leung Kuk [2018] HKCFI 356 that the sum of $100,000 is appropriate. I adopt that figure.
Pre-trial Loss of Earnings and MPF — during sick leave
105. At the time of the accident the plaintiff was earning on average $19,897.66 per month. He was granted intermittent sick leave by doctors from 3 December 2010 to 4 April 2015 for a total of 661 days. He resumed work with the 1st defendant on 3 June 2013 but tendered his resignation in March 2015 and left his employment on 13 April 2015 at which time his monthly earnings were $24,617. Mr Lim submitted that loss of earnings during sick leave should be awarded in the sum of $506,481.96 (being ($19,897.66 + $24,617.00) ÷ 2 × 661/30.5 × 105%).
106. The medical experts disagreed on the appropriate length of sick leave. The court is not bound by the sick leave certificates given by the treating doctors. Furthermore, since the Mueller-Weiss Syndrome is not shown to have been related to the accident, the figures proposed by the plaintiff cannot be accepted at face value. On this basis it seems to me that the period of 3 months of sick leave submitted by Mr Law for the 1st defendant is reasonable, and in fact more generous than that suggested by Dr Chun based on toe injury. The award would therefore be $62,679 (being $19,898 × 3 × 105%).
Pre-trial Loss of Earnings and MPF — after 13 April 2015
107. Mr Lim submitted that the plaintiff would after leaving the 1st defendant need 3.5 months in which to find a job. The plaintiff accepted that he had residual working capacity. He has assessed it at $15,000 per month and is prepared to accept this as his notional future earnings. The plaintiff accordingly claims damages for further pre-trial loss of earnings as follows:
(1) total loss of earnings for a notional period of 3.5 months (14 April to July 2015) in the sum of $93,828.90 (being $25,531.67 × 3.5 × 105%); and
(2) partial loss of earnings (after deducting $15,000 per month) from August 2015 to the date of judgement in the sum of $508,679.66 (being ($25,531.67 – $15,000) × 46 months (August 2015 to June 2019) × 105%).
108. The short answer to this claim is that, on the evidence, the toe injury had soon ceased to have any effect on the plaintiff. Any symptoms suffered by the plaintiff beyond the first few months would have been due to other conditions unrelated to the accident.
109. But even on the basis of the plaintiff’s own case, there are in my view serious problems with his claim.
(1) While the plaintiff claimed that the main reason for not working was the pain in the foot especially upon exertion, he did not go to any orthopaedic clinic for follow-up, and all physiotherapy and occupational therapy had stopped, after about January 2013 (except for psychiatric consultation). Nor did he consult any bone-setting or acupuncture specialist. He failed to give a direct answer on how often he felt pain in his right foot. To relieve his pain, the plaintiff said he took tablets of Cortal, and after finishing the hospital-prescribed Cortal, for the 3.5 years from April 2015 to the trial, he simply bought pain relief pills from high street drug stores, but it is not clear how often he took them.
(2) While I accept there might be some residual pain, stiffness or weakness from his Mueller-Weiss Syndrome after the operation (as evidenced by mild muscle wasting in the right calf), the plaintiff was able to resume work as a store manager with the 1st defendant in June 2013, carried on for 22 months, and only quit in April 2015. Dr Lam, who operated on the plaintiff, said the surgical treatment had proved to be “very successful in reducing the hind-foot and mid-foot pain” and that in general the plaintiff was “capable of returning to work as a store manager but may have slight decrease in efficiency rate”. According to the notes of the psychiatrist the plaintiff consulted in January 2015, the plaintiff felt “heavy pressure from his sales job”; according to the consultation notes of May 2015, the plaintiff had quit his job “for heavy working pressure, felt a bit irritable and depressed with fair sleep sometimes”. This contradicts the plaintiff’s claim that he quit because he was unable to work as a result of his foot injury.
(3) Although the plaintiff had a university degree and 18 years’ supervisory experience, his claim was made on the assumption that he had residual earning capacity of only $15,000 per month, based on employment as a building attendant, cashier or chit clerk.[16] The plaintiff’s evidence during cross-examination was that for the previous year, he had earned $8,000 per month working in his mother-in-law’s street stall at “Ladies’ Market” in Mongkok. But apart from this, he had not been in any gainful employment after he left the 1st defendant in April 2015. Nor had the plaintiff gone to any job interviews. According to him, he simply read advertisements in newspapers and made telephone enquiries. He said he did not have self-confidence and he could not work in jobs that required good health.
(4) As Mr Law and Mr Wong both submitted, relying on Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd (unrep, CACV 172/2004, 15 July 2005), if a plaintiff is perfectly capable of working and has taken no steps to try and secure work, he has failed to show any loss arising as a result of his injury. In this regard I agree with the defendants’ submission that the plaintiff had not made sufficient real and serious effort to find himself employment.
Future Loss of Earnings and MPF
110. On the above basis, the plaintiff also fails to prove any loss of future earnings.
111. If any damages are to be awarded for future loss of earnings, it was common ground, as at the time of trial, that on the basis that the plaintiff would retire at 65, the multiplier should be 9.28[17] and on the basis of a retirement age of 60, the multiplier should be 5.01. With the lapse of time since the trial, the respective multipliers based on the age of 55.5 instead of 55, may be taken to be approximately 8.84 and 4.51 instead, being the midpoint between the multipliers for 55 and 56 respectively.
112. On the question of retirement age, the joint psychiatric report recorded that the plaintiff wished to work in his Park’n Shop job until 60. In cross-examination, after a long pause, the plaintiff agreed that he had intended to retire at 60 and that he had told the psychiatrists this. In re-examination the plaintiff said he would work till 65 but for the accident, but I prefer his answer extracted during cross-examination which is consistent with the information given to the psychiatrists.
Loss of Earning Capacity
113. The plaintiff seeks damages for loss of earning capacity to reflect his difficulty in getting employment. Mr Lim submitted that a lump sum of $300,000 should be awarded based on the assumption that the plaintiff would have a number of periods of unemployment. Based on my findings of the extent of injury, this claim is not made out. In any event, I do not think that even on the plaintiff’s own case this award would have been justified given the basis for the claim for loss of earnings he was already making.
Future Medical Expenses
114. The plaintiff claims a total sum of $82,726 for future medical expenses, being $39,186 for follow-up and $43,540 for orthotic shoes. As the plaintiff has recovered well from the toe injury, there is no basis for the claim. Furthermore, the fact that the plaintiff had neither sought further treatment nor gone for follow-up examination in the several years up to the trial shows that no future medical expenses should be awarded.
Overall
115. For the reasons above, the plaintiff has only established claims for PSLA in the sum of $100,000, special damages in the sum of $40,000, and loss of pre-trial earnings in the sum of $$62,679, totalling $202,679. This has to be reduced by 25% to $152,009.25 on account of the plaintiff’s contributory negligence. Interest should accrue on the special damages at half the judgment rate from the date of accident, on the PSLA award at 2% from the date of writ, and on loss of pre-trial earnings at prime plus 1% per annum from 1 February 2011 (as an approximate mid-point of the 3 months).
116. Even taking into account all the interest accrued, however, the common law damages do not exceed the sum of $531,772 already paid to the plaintiff by way of employees’ compensation.
J. Conclusion
117. For the above reasons, (i) the plaintiff’s claim is dismissed, and (ii) there will be an order on the 1st defendant’s contribution notice that the 3rd defendant do pay the 1st defendant two-thirds of the sum of $152,009.25 together with interest as set out in §115 above.
118. As an order nisi, (i) the plaintiff is to pay the 1st and 3rd defendants’ costs of the action; (ii) the 3rd defendant is to pay the costs of and relating to the 1st defendant’s contribution notice; and (iii) the plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.
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(Godfrey Lam) |
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Judge of the Court of First Instance |
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High Court |
Mr Patrick Lim, instructed by Szwina Pang, Edward Li & Co, assigned by Director of Legal Aid, for the Plaintiff
Mr Dennis Law, instructed by Fairbairn Catley Low & Kong, for the 1st Defendant
Mr Wong Chi Kwong and Mr Dexter Leung, instructed by Chan & Young, for the 3rd Defendant
[1] According to the plaintiff’s Amended Statement of Claim, para 4.
[2] According to the plaintiff’s Further and Better Particulars provided pursuant to the 1st defendant’s request.
[3] 1st Defendant’s Defence, para 6.
[4] Plaintiff’s Closing, para 8.
[5] At pp 14 & 23 of the joint medical report.
[6] Para 4(j).
[7] Para 8(a).
[8] Para 8(c).
[9] Para 8(f).
[10] Para 22.
[11] Para 10A of its Defence.
[12] See paras 64-66.
[13] See para 17.
[14] Para 25.
[15] David John Slater v Commissioner of Police (unrep, HCPI 646/2012, 7 July 2017) and Chan Ho Kan v Mo Man Ho and Another (unrep, HCPI 777/2014, 28 September 2018).
[16] Plaintiff’s Revised Statement of Damages, para 8(g).
[17] On this basis, it was submitted that the plaintiff’s future loss of earnings should be $1,422,235.02 (being ($27,163.34 - $15,000) × 12 × 9.28 × 105%).
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