SIT KAN TAT v. WORLD CLASS TALENT LTD AND ANOTHER

DCPI 3632/2020

[2024] HKDC 1295

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3632 OF 2020

---------------------------

BETWEEN

---------------------------

---------------------------

DECISION

---------------------------

I. INTRODUCTION

1.  Before me are the 1^st defendant’s summons filed on 15 April 2024 (the “1^st Defendant’s Summons”) and the 2^nd defendant’s summons filed also on 15 April 2024 (the “2^nd Defendant’s Summons”), both for leave to appeal against my judgment handed down on 18 March 2024 ([2024] HKDC 420) on liability and quantum (the “Judgment”). In the Judgment, I found the 1^st and 2^nd defendants liable to pay the plaintiff damages in the sum of HK$1,285,434.62 for the injuries he suffered in the workplace of the 2^nd defendant in the course of employment by the 1^st defendant.

2.  I shall not repeat the background and the findings of the Judgment. I shall adopt the definitions and abbreviations used therein.

II. 1^ST DEFENDANT’S INTENDED GROUNDS OF APPEAL

3.  I shall first deal with the 1^st defendant’s intended grounds of appeal. In the counsel’s submissions, the intended grounds of appeal were regrouped and renumbered and thus the numbering of the intended grounds of appeal in the draft notice of appeal do not correspond to the numbering used in the counsel’s submissions. For easy reference should this matter go further, I shall use the numbering in the draft notice of appeal.

Second ground

4.  It is more convenient first to deal with the intended second ground, because it is a challenge to my factual findings on the plaintiff’s evidence in relation to the logistics industry and the disadvantage caused to the plaintiff by the injuries in the shrunken industry. Such factual findings formed one of the bases for my finding on the plaintiff’s employability, a subject matter of the intended first ground of appeal.

5.  At §97 of the Judgment, I found that “the logistics industry has shrunk and thus, the workforce market has become more competitive in that less people are employed and one worker is expected to do more” and thus the plaintiff became disadvantaged “because he could not do such additional work as effective as a normal forklift driver” due to the permanent injury to his wrist.

6.  The 1^st defendant complains that the plaintiff did not mention anything about the shrinking logistics market after the pandemic in his written witness statements but only raised it the first time in the evidence-in-chief. The 1^st defendant submits that had this been raised earlier, the 1^st defendant would have adduced counter-evidence.

7.  First, fundamentally, I do not see any prejudice in allowing and accepting the plaintiff’s such evidence. The essence of such evidence in fact had already been set out in paragraph 2 of the plaintiff’s supplemental witness statement, which should have already enabled the defendants to adduce any relevant counter-evidence, if any. In paragraph 2 of his supplemental witness statement, the plaintiff said, among others, that:-

(1) Besides forklift operating, he also had to move parcels and assist in distribution of the parcels.

(2) After the Accident, his strength was weakened.

(3) The workload of the logistics company increased but the workforce there was insufficient.

(4) Thus, his work performance was not satisfactory.

(5) He was effectively dismissed as a result.

8.  What was missing there is that the industry had been shrinking due to the pandemic. But one must not forget the plaintiff’s case set out in §§18 and 26 of the plaintiff’s Revised Statement of Damages:-

“18. Since February 2020, the demand of part-time workers in the logistics field decreased as a result of the COVID-19 pandemic. The competition between workers became more fierce. Because of the residual disabilities suffered by the Plaintiff, he found fewer opportunities. He has been working around 10 days per month … at $600.00 to $700.00 daily.

26. Based on the medical evidence pleaded above, the Plaintiff avers that he suffers a disadvantage in the labour market when he has to compete with other able-bodied workers, as a result of the Accident. There is a higher chance for him to be out of work because of his residual disabilities and he will thus suffer further loss.” (emphasis added)

9.  Thus, the gist of the plaintiff’s evidence adduced in the evidence-in-chief, that he had to move parcels, he was less strong to do so and thus he became less employable, had already been there in paragraph 2 of the plaintiff’s supplemental witness statement, and the plaintiff’s case that the demand of part-time workers decreased as a result of the pandemic was pleaded in the Revised Statement of Damages. Despite all these, the defendants did not adduce any evidence to counter the plaintiff’s such evidence and case. For example, whether after the pandemic or not, if there were evidence that contrary to the Revised Statement of Damages, the industry remained the same, or even improved so that demand for workers increased and thus despite the plaintiff’s permanent wrist impairment, he was still equally or even more employable, the defendants would certainly have adduced the same. They would only have themselves to blame if they did not do so whether for tactical reasons or otherwise.

10.  In any event, the situation after the pandemic was simply an update after the witness statements were filed. This update constituted no change of the plaintiff’s position in the Revised Statement of Damages, namely, the demand for part-time workers had decreased, his earning capacity had been disadvantaged by the Accident and he could only work around 10 days a month.

11.  For the sake of completeness, insofar as the 1^st defendant would like to run an argument that because the post-pandemic situation was not pleaded, the plaintiff therefore could not adduce any evidence and have any case in relation to the post-pandemic situation, such argument would be stated to be rejected – the plaintiff’s case is always that he lost his earning capacity after the Accident. The period “after the Accident” did not end as at the date of pleading or witness statements.

12.  Second, neither the 1^st defendant’s counsel nor the 2^nd defendant’s counsel raised any objection to the plaintiff’s asking questions leading to this piece of evidence in examination-in-chief. In particular, having established that the plaintiff had worked until June 2023, the plaintiff’s counsel asked the plaintiff why he did not work anymore after June 2023. The plaintiff answered that the industry had shrunk after the pandemic and he had no competitive edge. The plaintiff’s counsel then asked a follow-up question what he meant by competitive edge. The plaintiff then explained that because the industry had shrunk, a forklift operator would now have to handle parcels as well, while his ability to do so had been weakened and thus employers were less willing to employ him. Such question-and-answer took quite some time, but none of the defendants’ counsel raised any objection.

13.  Third, the defendants’ counsel were perfectly entitled to cross-examine the plaintiff in this area. It was their decision whether to do so or not.

14.  Fourth, in re-examination of the plaintiff, the plaintiff repeated his answers in the evidence-in-chief. Again, none of the defendants’ counsel raised any objection to the question, which led to the answer.

15.  Fifth, the defendants may also choose to make submissions on the weight the Court should give to such evidence, or even on whether the Court should disregard it. In this regard, while the 2^nd defendant did not make any submissions in his closing submissions, the 1^st defendant, in paragraph 40.4 of his written closing submissions, based on there being “a shrinking in the warehouse industry and … less demand for warehouse workers”, made submissions that these were unrelated to the injury. So, the 1^st defendant was simply taking on the plaintiff’s updating evidence in his closing submissions.

16.  For the five reasons above, I am not satisfied that there are any reasonable prospects of success in respect of the second intended ground of appeal.

First ground

17.  The 1^st defendant’s first intended ground of appeal concerns my factual findings that the plaintiff became less employable after his sick leave. The 1^st defendant contends that I erred in law in substituting my own view for the experts’ and without proper evidence, I erred in assuming the role of the experts in finding that the plaintiff became less employable since the joint examination.

18.  There is no dispute that the experts did not ask the plaintiff how much weight he had to carry if he had to resume his previous job. Thus, the 1^st defendant contends that there was no valid expert evidence to prove that the plaintiff became less employable as at the time of the joint examination. As regards the plaintiff’s employability after the joint examination, the 1^st defendant contends that because I had already rejected any allegation from the plaintiff that the grip power of his right hand had deteriorated since the joint examination, there was no evidence to prove that he became less employable. The net total became, the 1^st defendant contends, that there was no evidence before me as to the plaintiff’s employability.

19.  In my view, ultimately, the question of the plaintiff’s employability was a question of fact for me to decide: see Lee Chit Ming v Man Siu Hung [2018] HKCA 66 at §23. Although expert evidence may be of assistance in the fact-finding process, it does not follow that the question can only be determined solely on expert evidence.

20.  The findings and the reasoning in relation to the plaintiff’s employability were set out in §97 of the Judgment. There, in essence, I found that the plaintiff had not had any further improvement in his right wrist, and that the injury in his wrist was permanent and that there would be no full recovery. These were based on the experts’ evidence. I then found that because of the permanent injury, in the light of the adverse change of the forklift employment market (the subject matter of the intended second ground of appeal), he became less employable. In my view, the evidence available to me was sufficient to sustain my finding on the plaintiff’s employability. The finding cannot be said to be plainly wrong or contain an error of law.

21.  In the circumstances, I am not satisfied that the first intended ground has any reasonable prospects of success.

Third ground

22.  In the third ground, the 1^st defendant contends that I erred in law in awarding loss of earnings to the plaintiff. There are two limbs in the third ground:-

(1) “The Plaintiff’s loss arising from his reduced working days is due to the pandemic, and this is not a direct consequence of the foreseeable damage caused by the 1^st Defendant’s negligence.”

(2) “The learned Judge had further ignored the unchallenged evidence that the Plaintiff’s working day reduced after February 2020 because of incidents unrelated to the Accident at all, including that the Plaintiff did not work for two months in 2021 when his family member passed away.”

23.  The relevant findings in relation to (1) are set out in §105 of the Judgment. It would be a misreading out of context if that paragraph is understood to be a simple finding that the number of working days decreased to about 10 days per month due to the COVID pandemic. My finding is that “the number of working days decreased to about 10 days per month because the COVID pandemic had lessened the demand for part-time workers in the logistics field.” (emphasis added). It must be noted that initially, the plaintiff worked as a full-time forklift driver (see §101 of the Judgment), but because of his reduced employability (as found in §97 of the Judgment), “he left in mid-October 2019” and “thereafter, he then started to work … on a part-time basis”. So, but for the Accident, the plaintiff would not have had his employability reduced, and would not have had to work on a part-time basis, and would not have had to work for less than 10 days per month after “the COVID pandemic had lessened the demand for part-time workers in the logistics field”.

24.  If the 1^st defendant would like to run the argument that the COVID pandemic was an event that had completely superseded the tortious act of the defendants, he would have to establish that the COVID pandemic would have caused the same loss to the plaintiff regardless of the injury caused by the Accident: see Clerk & Lindsell on Torts (24^th ed), §2-106, cited by the 1^st defendant in his submissions (though not cited during the trial at all). However, there was no evidence, and thus no finding, for that purpose.

25.  The evidence in relation to (2) above is quoted out of context. The relevant evidence was set out in §2 of the plaintiff’s supplemental witness statement, where the plaintiff said, unchallenged, that “於2021年8月至9月期間，由於沒有物流公司找我開工，加上我需要處理至親離世的身後事，這2個月我沒有工作亦沒有任何收入” (emphasis added). It is clear that he did not work for those two months because (a) no logistics company asked him to work; and (b) he had to deal with the passing of his family member. This must still be read in the context of my factual finding that the plaintiff’s employability was reduced due to the permanent injury to his right wrist caused by the Accident.

26.  In other words, no logistics company asked him to work because of his reduced employability. Logically, when there was no logistics company asking him to work, he would of course have no income. In other words, the mere fact that there was no logistics company asking him to work was the explanation for his lack of income.

27.  The next phrase in the quote above, namely, “in addition, he had to deal with the passing of his family member”, was evidence to explain why he did not actively seek jobs, and this explanation sounds reasonable enough. The fact remains that but for the Accident, he would not have to seek jobs, and for completeness, insofar as the 1^st defendant’s complaint in this ground would then change to become a complaint (though it is not on the draft notice of appeal and not a point apparently run at trial) that the plaintiff did not take reasonable steps to mitigate his loss, I do not think that in the light of his need to deal with the passing of his family member, it was unreasonable for him not to seek jobs in the period of one month or so.

Fourth ground

28.  In the circumstances, there are no reasonable prospects of success in the fourth ground, which is a conclusive ground of the first to third grounds.

Fifth ground

29.  The fifth ground complains that I did not give any or any adequate reasons to justify my award of loss of earning capacity of 9 months. The relevant paragraph is §112 of the Judgment.

30.  It seems from the absence of the 1^st defendant’s written submissions on this ground that he is (in my view, rightly) not seriously running this ground. In any event, I fail to understand this ground at all. §112 of the Judgment begins with “Given my findings in relation to the plaintiff’s employability in the competitive logistics field”. While I did not set out how I came to the 9 months, in coming to this conclusion, I of course bore in mind the well-established factors I had to consider as set out in Thapa Surendra v E W Cox Hong Kong Ltd, HCPI 451/2009, 11 July 2011, as summarised in §44 of the plaintiff’s opening submissions, which none of the defendants disputed. The factors were just too well-established to be enumerated in the Judgment. In any event, I do not see that the 1^st defendant challenges in the draft notice of appeal my ruling of 9 months. The only challenge is lack of reasoning, which would have no practical effect on the finding of 9 months and with which I disagree for the above reason in any event.

31.  Therefore, I see no reasonable prospects of success in this ground.

Sixth ground

32.  In the circumstances, there are no reasonable prospects of success in the sixth ground, which is a conclusive ground of the fourth and fifth grounds.

Seventh ground

33.  In the circumstances, there are no reasonable prospects of success in the seventh ground, which is a conclusive ground of the first to the sixth grounds.

Conclusion on the 1^st defendant’s summons

34.  Given the above, there are no reasonable prospects of success in the 1^st defendant’s intended appeal. I also fail to see that the intended appeal would be in the interest of justice. Therefore, I shall dismiss the 1^st Defendant’s Summons, with costs be to the plaintiff, with certificate for counsel, summarily assessed at HK$45,000, payable forthwith. The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.

III. 2^ND DEFENDANT’S INTENDED GROUNDS OF APPEAL

35.  I shall now turn to the 2^nd defendant’s intended grounds of appeal. Similarly, I shall use the numbering in the draft notice of appeal.

First ground

36.  The first ground takes a pleading point. The 2^nd defendant contends that on the facts as I found, the plaintiff failed to prove any of the particulars of negligence he set out in §6 of the Statement of Claim. The particulars were:-

“6.1 Failed to take all reasonable steps and precautions to ensure the Plaintiff’s safety in carrying out his duties or egressing from the bank entrance of the Warehouse;

6.2 Failed to give any, or any sufficient warning to the Plaintiff regarding the risk of injury associated with egressing from the back entrance of the Warehouse;

6.3 Failed to provide and maintain any proper and/or suitable means of egress when the Plaintiff egressed from the back entrance of the Warehouse;

6.4 Failed to provide any, or any reasonable supervision and/or instruction to ensure that the Plaintiff would egress from the back entrance of the Warehouse in a reasonably safe manner;

6.5 Exposed the Plaintiff to unnecessary risk of injury of which the 1^st Defendant and/or the 2^nd Defendant knew or ought to have known.”

37.  The 2^nd defendant’s complaint arises from the lack of findings that the plaintiff was entitled to egress from the back entrance, while the particulars (1), (3) and (4) were, the 2^nd defendant argues, premised on the basis that the plaintiff could use the back entrance, and thus these particulars were not made out. As regards particular (2), I found that there was sufficient warning, and so particular (2) was also not made out. As to the remaining particular (5), the 2^nd defendant says that it was too generic and too broad, which is a point not taken at trial.

38.  My factual finding, as set out in §47 of the Judgment, is that the plaintiff did use the back entrance for egress, and the plaintiff still used it despite warnings to the contrary because the warnings were simply not enforced by the 2^nd defendant including its supervisor Brother Wah and because the working environment created by the lack of supervision and by the habit of the co-workers and the supervisor Brother Wah was such that effectively, the plaintiff (as well as the other workers) thought that he could use the back entrance for egress. Lack of enforcement of and compliance with the warnings and what was the working habit were indeed among the main factual disputes at trial. The 2^nd defendant was at trial arguing that not only the plaintiff was not entitled to use the back entrance, but also that the working environment was such that no one would and should use the back entrance. If the 2^nd defendant were right, then this would be purely the plaintiff’s own choice to use the back entrance, and then arguably, none of the particulars would be established.

39.  But in the Judgment, I disagreed with the 2^nd defendant. It was my finding that the 2^nd defendant’s failure to enforce the warnings and creation of such working environment led to such habit of using the back entrance for egress, despite the plaintiff’s knowledge that it was risky to use the back entrance. The 2^nd defendant, being in control of the workplace, could not simply fold its arms and disclaim any duty after its own failure to enforce the warnings and its own creation of working environment such that the plaintiff thought he could use the back entrance for egress despite his knowledge that it was risky. Applying the legal principles as set out in §46 of the Judgment (against which neither defendant intends to appeal), the 2^nd defendant still had the duty to ensure the plaintiff’s safety in using the back entrance for egress, and in particular provide sufficient supervision for a safe egress from the back entrance (as well as other positive duties pleaded in the particulars). I do not see how my finding in §47 of the Judgment that the 2^nd defendant falls outside the pleading at all.

40.  Nor do I see any prejudice arising from this pleading point. First, the 2^nd defendant did not take this pleading point in his closing submissions at all. Second, the 2^nd defendant even engaged himself in the issues on, among others, whether the workers had the habit to use the back entrance (see the 2^nd defendant’s closing submissions §39(2)); whether the 2^nd defendant had sufficient patrol in the back entrance area (see the 2^nd defendant’s closing submissions §39(5)) and whether there was supervision to ensure compliance with the Safety Warning (see the 2^nd defendant’s closing submissions §40).

41.  In the premises, I see no reasonable prospects of success in the intended first ground.

Second ground

42.  The second ground concerns my finding that the plaintiff was only 35% contributorily negligent. The 2^nd defendant contends that at least I should have found 50% contributorily negligent. The 2^nd defendant highlighted the following matters in this ground:-

“(1) The Plaintiff knew that he should not have used the Wooden Pallet (§§17 and 23 of the Judgment);

(2) The Plaintiff was dizzy, unwell, and extremely tired, which was explicitly pleaded in §4.4 of the Statement of Claim;

(3) ‘Brother Wah’ did not tell the Plaintiff that he could use the back entrance for the toilet (§24 of the Judgment);

(4) According to the CCTV Footage, shortly before the Accident, none of the co-workers in the Warehouse left the Warehouse from the back entrance or encouraged or suggested that the Plaintiff leave the Warehouse by stepping on the Wooden Pallet;

(5) The 2^nd Defendant had measures in place to warn the Plaintiff from leaving the Warehouse from the back entrance (§§22-28 of the Judgment).”

43.  The legal principles in relation to an appeal on the finding of contributory negligence are well-established. “Apportionment for contributory negligence is a discretionary exercise”: see Cheung Kai Chi v Chun Wo Contractors Ltd [2008] 1 HKLRD 102 at §18 per Tang VP and “[a] decision of a trial judge as to contributory negligence and the apportionment of responsibility is treated as a finding of fact”: see Cheung Kai Chi v Chun Wo Contractors Ltd, supra at §92 per Yuen JA. Thus, an appellate court would interfere with the trial judge’s finding on contributory negligence only when it is plainly wrong and contains an error of law.

44.  (1) and (5) in this second ground are my factual findings effectively about the plaintiff’s own decision to assume the obvious risk. I already considered this in §62 of the Judgment.

45.  As regards (2), this was not a particular pleaded for contributory negligence in the 2^nd defendant’s defence. I did not have to consider it.

46.  In respect to (3), that Brother Wah did not tell the plaintiff to use the back entrance was my finding in §24 of the Judgment and thus it did not escape my consideration. In any event, this “not telling” point was not a particular pleaded in support of contributory negligence. Further, more salient was my consideration in §63 of the Judgment that Brother Wah himself used the back entrance and he failed to take measures to ensure that the back entrance would not be used for egress.

47.  (4) is not helpful at all – CCTV is just a snapshot of a certain period of time, and it is not helpful at all for the 2^nd defendant in this ground to refer to what happened “shortly before the Accident”. My findings were focused on the repetition of the use of back entrance by Brother Wah and other co-workers over a period of time.

48.  Therefore, I fail to see how my finding on contributory negligence can be said to be plainly wrong and/or carry any error of law. There are no reasonable prospects of success in this intended ground.

Third ground

49.  The third ground concerns the loss of earnings and loss of earning capacity after January 2020. The 2^nd defendant contends that no loss of earnings and no loss of earning capacity should be allowed. The 2^nd defendant sets out in the draft notice of appeal that:-

“(1) For the period from February 2020 until the time when the COVID pandemic was over, the Plaintiff’s only evidence for the reduction of workload to around 10 days was because of COVID pandemic in §24 of his Witness Statement. The Plaintiff’s reduction of workload was not caused by the Accident;

(2) For the period after the COVID pandemic, the Judge erred in allowing the Plaintiff’s evidence in §97 of the Judgment (shrinking of logistics industry after the COVID pandemic with more workload per worker), as there was no pleaded case on the situation after the COVID pandemic in the Revised Statement of Damages, particularly §§18 and 26 thereof;

(3) Further or alternatively, if the Judge is allowed to consider the Plaintiff’s unpleaded case after the COVID pandemic, upon finding that the Plaintiff had not been employed since June 2023 (§97 of the Judgment), the Judge failed to consider whether the Plaintiff’s loss arose from his injury or his failure to make any attempt to work, including working on an alternative job.”

50.  In relation to (1), it is the same as the first limb of the 1^st defendant’s intended third ground (see paragraph 22 above), and I have dealt with it in paragraphs 23 and 24 above.

51.  In relation to (2), the pleas in question, namely, §§18 and 26 of the plaintiff’s Revised Statement of Damages, have been set out in paragraph 8 above. This (2) has been dealt with in paragraphs 9-11 above. I fail to see any merit in (2). I should add that contrary to the 2^nd defendant’s written submissions that “The Court did not find that the shrinking of the logistics industry after the COVID-19 pandemic was caused by the COVID-19 pandemic”, when reading §97 of the Judgment properly and in the context, where I found that “after the COVID pandemic, the logistics industry has shrunk …”, one would reasonably understand that the shrinking was indeed caused by the pandemic.

52.  As regards (3), the 2^nd defendant’s pleaded case was never that the plaintiff could have found an alternative job, let alone specifically as a security guard. Such a positive case, if the 2^nd defendant would like to run, must be pleaded, and the burden lies on the 2^nd defendant to prove the plaintiff’s failure to mitigate (see Li Pui Ha v Wong So Kee Transportation Ltd [2014] 4 HKLRD 254 at §25 per HHJ Ko, a case cited by the 2^nd defendant in his submissions). Thus, while the 2^nd defendant may have raised such a case in the opening submissions or even in the cross-examination, the fact remained that there was no proper evidence admissible as to the income of a security guard because of the lack of pleading. It was all the more inappropriate for such evidence to be attached to the 2^nd defendant’s written closing submissions, amounting to be giving evidence from the bar table without any opportunity for the witness to explain or counter.

53.  Lastly, I do not quite understand the argument in §16(4)(c) of the 2^nd defendant’s written submissions that “the Court’s remarks that the 2^nd Defendant did not plead that the Plaintiff should have worked as a security guard must be viewed in the light of the fact that the Plaintiff has not pleaded any positive case on loss of earning during the Post-COVID-19 Period”. If it were the 2^nd defendant’s case that the plaintiff could have taken up some alternative jobs, it would still be his case regardless of whether or not the plaintiff pleaded any positive case on the loss of earning after the pandemic, and the 2^nd defendant should still have pleaded this case. If it were the 2^nd defendant’s argument that because I allowed evidence in relation to the situation after the pandemic despite the absence of any pleading to that effect, so I should also allow the 2^nd defendant to run his point without pleading, I have dealt with this in §§9-11 above.

54.  In the circumstances, I also fail to see any merit in (3).

55.  Therefore, I am not convinced that there are any reasonable prospects of success in this intended ground of appeal.

Conclusion

56.  Given the above, there are no reasonable prospects of success in the 2^nd defendant’s intended appeal. I also fail to see that the intended appeal would be in the interest of justice. Therefore, I shall dismiss the 2^nd Defendant’s Summons, with costs be to the plaintiff, summarily assessed at HK$45,000, payable forthwith. The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.