YIM KWOK YUEN v. KEENTECH TRANSPORTATION LTD AND OTHERS

DCPI 25/ 2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 25 OF 2005

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JUDGMENT

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The plaintiff’s case

1.  The plaintiff was a container truck driver.  He drove EP 9717 (“the Truck”) owned by the 1^st and/or the 2^nd defendants.  He was employed by the 1^st and/or the 2^nd defendants.  He fell from the truck in the course of work.  The 2^nd defendant was the owner of the Truck. He says it happened as a result of negligence, breach of the contract of employment, breach of duty of care as an occupier or at all, on the part of the 1^st and/ or the 2^nd defendants.  He claims general and special damages.       

The 1^st defendant’s case

2. The 1^st defendant was in liquidation.  It did not file any Notice of Intention to Defend.  The plaintiff obtained default judgment.  The Court ordered for damages to be assessed and costs to be taxed. 

The 2^nd defendant’s case

3. The 2^nd defendant disputed that it was the owner or occupier of the truck, or the plaintiff’s employer.  In any event, the accident was caused by the plaintiff’s own negligence. 

The 3^rd defendant’s case

4. The 3^rd defendant had been the insurer of both the 1^st and the 2^nd defendants.  On 13 January 2004, Master Allan Leung granted it leave to defend the proceedings including the issue of liability and quantum of compensation on its own behalf.  The 3^rd defendant agreed to indemnify the 1^st defendant but not the 2^nd defendant as the 2^nd defendant was in breach of the insurance agreement.  The 3^rd defendant now seeks to serve a notice claiming contribution and indemnity on the 2^nd defendant in case the 1^st defendant is made liable.  The 2^nd defendant does not object to this.  Be that as it may, I do not see what locus the 3^rd defendant has to put in this notice for and on behalf of the 1^st defendant.  I refuse the application.     

5. The 3^rd defendant applies to set aside the default judgment against the 1^st defendant.  The 3^rd defendant also takes out a summons to amend the 1^st defendant’s Defence.  The 2^nd defendant’s counsel submits that the 3^rd defendant has no locus to do either things.  I agree.  Be that as it may, I also agree with the 3^rd defendant’s counsel [para. 6 of 17 December 2005 Submissions] incidentally that the default judgment against the 1^st defendant was only a procedural award, which does not preclude the 3^rd defendant from arguing on liability on merits.  A procedural award does not constitute res judicata in a subsequent hearing on merits (Chu Hung Ching v Chan Kam Ming & Ors., [2001] H.K.C. 396 C.A. citing in approval Pocklington Foods Inc. v Alberta Provincial Treasurer (1995) 123 D.L.R. (4^th ) 141 ).            

6. The 3^rd defendant leads evidence.  It had engaged a loss adjuster to investigate into the case.  It had unveiled materials discrediting the plaintiff and the 2^nd defendant.  The accident was caused by the plaintiff’s own negligence.  Besides, the 2^nd defendant was responsible for being negligent, the sole employer and the sole occupier of the truck. 

The crux of the case

7. In the morning on 13 October 2000, the plaintiff was injured when he was boarding the Truck for work.  He was taken to hospital for treatment.  He received sick leave and was out of work for some time.  He had received from the 1^st and/or the 2^nd defendant the total sum of $159,875.20 before trial.  All parties agree that if full liability is established, the quantum should be assessed at $250,000 (inclusive of interest).  The final award will be subject to a reduction, if any, due to contributory negligence. 

Issues for trial

8. This Court has to determine:

(1)  Whether the plaintiff met with an accident resulting in his injuries;

(2)  Whether the 1^st defendant was the plaintiff’s employer;

(3)  Whether the 2^nd defendant was the plaintiff’s employer;

(4)  Whether the 1^st defendant was the occupier of the Truck;

(5)  Whether the 2^nd defendant was the occupier of the Truck;

(6)  Whether the 1^st defendant was in breach of any duties as employer or occupier or at all;

(7)  Whether the 2^nd defendant was in breach of any duties as employer or occupier;

(8)  Whether the plaintiff had contributory negligence;

(9)  Assessment of damages to be borne by any responsible parties.

Evidence in the plaintiff’s case

9. The plaintiff gives evidence.  He was a truck driver for about 20 years up to 2000.  In late August 2000, he was introduced to Mr. Tsang Kam Hung (“Tsang”) of the 2^nd defendant.  Tsang offered to employ him as a driver of a container truck belonging to the former.  Tsang promised him good pay and fringe benefits.  He resigned from Hoi Sing Transportation Company and commenced to work for Mr. Tsang on 31 August 2000.  A few days afterwards and onwards, he was assigned to drive the Truck.  Mr. Tsang let him drive it home and park it where he pleased.  The Truck had missing handrails on each side and a slippery and loose 3-step ladder leading to the driver’s cabin.  He had complained about such a dangerous state to Tsang whenever they met about once every week, but no repairs were done.     

10. At 6.30 a.m. of 13 October 2000, he left home to board the truck for work.  It had been parked nearby his home, on Yau Oi Road.  It was parked parallel to, and its offside at 1 –2 feet, from the curb.  He opened the driver’s door and mounted the ladder.  He had to grab the steering wheel (on his right-hand-side) and the driver’s seat (on his left-hand-side) for support due to the lack of handrails.  As he was standing on the highest step, at about 5 feet from the ground, and about to enter the driver’s cabin, he slipped off the step and fell back.  His right lower back hit on the metal railings behind him.  He felt great pain and dizzy.  He eventually gathered strength and mounted the driver’s seat to rest.  After half an hour, he rang up his wife.  His wife came down to see him.  Ambulance was summoned to take him to the hospital.  He was given sick leave from that date to 28 February 2001 and 1 more day on 12 March 2001. 

11. His main injuries were the fracture of 2 lower ribs and of transverse process of the vertebrae on his right side.  He had some bleeding in the liver and pleural effusion which were not very serious.   

12. After the accident, he could not do the job and had to resign.  After some periods of unemployment, he drove trucks with a lighter workload full-time and later a franchised mini-bus on relief duty.   He could not earn as much as before the accident. 

13. After the accident, Tsang had given him cheques as wages and compensation.  Tsang also introduced a stranger, Mr. Law Ping Ming (“Law”) to him.  Tsang told him that Law was his real employer and that Law’s policy could give him more compensation.  Tsang was only willing to give him the cheques upon his signing a document acknowledging Law’s employment.  He had no idea of the exact relationship between Tsang and Law.  His utmost concern was to get the cheques for his living.  He could not afford to argue about who issued them. 

Evidence in the 1^st defendant’s case

14. The 1st defendant is absent and unrepresented. 

Evidence in the 2^nd defendant’s case

15. Tsang gives evidence.  The 2^nd defendant calls no other witnesses.  I shall only set out the 2^nd defendant’s case where it contradicts or goes beyond the plaintiff’s case. 

16. At the job interview on 25 August 2000, the 2nd defendant had told the plaintiff that it was the 1^st defendant who employed him.  He replied that understood and agreed to it. 

17. On the same date, the 2nd defendant entered into an agreement for its sale and the 1^st defendant’s purchase of the Truck (“the Agreement”).  There was to be a 2-month trial period from 1 September 2000.  The 2^nd defendant kept no keys after handing one key to the 1st defendant and the other one to him.  The 1^st defendant gave orders to the 2^nd defendant, who instructed him to work.  He had to fill out forms for a work-done schedule to submit to the 2^nd defendant, who forwarded the same to the 1^st defendant for payment.  Afterwards he resigned and the 1^st defendant did not proceed with the purchase.  Then the 2^nd defendant sold the Truck to a car company.  He had told the plaintiff of the terms of the Agreement, including the dismissal of the plaintiff if the 1^st defendant did not proceed with the purchase.     

18. At all material times, including the date of the accident, there were 3 secure handrails in total on both sides of the driver’s door, with a secure ladder.  These were the original parts of the Truck ex manufacturer’s factory.  There was a paint spray job done by the garage after the accident, as shown in photos [BC 94].  It had nothing to do with the handrails or the ladder.  He cannot recall the date. 

Evidence in the 3^rd defendant’s case

19. Mr. Lam Wing Fung (“Lam”) gives evidence.  He worked for Toplis and Harding (Hong Kong) Limited, a loss adjuster appointed by the 3^rd defendant.  He was instructed to investigate into the plaintiff’s claim.  He spotted the plaintiff working full time on 13, 15 September 2004.  He made an investigation report [BD 325-332] and a surveillance tape in September 2004.  He took statements from the plaintiff and the 2^nd defendant.   

This Court’s findings

       On the plaintiff’s evidence

20. Mr. Yip, counsel for the 2^nd defendant, submits [in paras. 18-23 of Submissions] that the plaintiff stated [in examination-in-chief] that it was shortly after 6 a.m. when he came to board the Truck for work.  He fell and rested for half an hour.  He stated [in para. 11 of his witness statement, at C 17] that he phoned his wife immediately.  He stated [in Answer 16(a), (b) to the Interrogatories, at A 58] that after arrival at the scene, she called the ambulance.  The ambulance arrived 5 – 10 minutes later.  Counsel points out that the ambulance arrived at 9.23 a.m. [according to Fire Services Department’s letter, at D 130].  I see no reason how it was already 9.23 a.m., when the ambulance arrived.  I do not find the plaintiff’s evidence credible.   

21. Counsel submits [in paras. 24-26 of Submissions] that the plaintiff stated [in Answer (1)(b)(i) to Request to F & B, at A41] that the Truck was parked on Oi Ming Lane.  However, he says [in cross-examination] that it was parked on Yau Oi Road.  I note his mention [in Answer 10 to Interrogatories, at A 54] and his oral evidence [in cross-examination] that it was Yau Oi Road.  He explains that [in cross-examination] that he could not remember this well because it was long time ago.  He says he can clearly remember it in Court.  I see no reason how his memory is getting better as time goes by.  I do not believe that he would fail to recall the location where he fell.             

22. Counsel submits [in paras. 33-34 of Submissions] that he has shifted the marked position of the Truck [on the photo Exh. P2 in cross-examination] to a few feet away where there was a metal railing [on the photo Exh. P3 in re-examination].  His markings [from Exh. P2 to Exh. P3] demonstrate a plain attempt to make up evidence as the case develops.  I agree. 

23. Counsel refers [in para. 45-47 of Submissions] to the plaintiff’s mention [in para. 31 of his witness statement, dated 27 April 2004, at C 26] that he had not got a job up to the date of the witness statement.  After his solicitors told him of Lam’s Investigation Report [of surveillance on 13 and 15 September 2004, at D 325-335], he admitted [in para. 3 of his witness statement, dated 25 February 2005, at C 50] that he started to work as a minibus driver since September 2004.  According to the IRD record [in D 318] he earned $112,069.00 for the period of 1 April 2004 – 31 March 2005.  I do not think that such his job at $10,000 per month could be omitted from mention [in his witness statement dated 27 April 2004, at C 26].  I do not find his evidence credible.      

24. I do not find him a credible witness.  I have serious doubts in the following:

(1)Whether the accident happened there and in the way he describes;

(2)Whether he was in the course of employment under the 1^st and/or the 2^nd defendant at that time;

(3)Whether the Truck had missing handrails, a slippery and loose ladder;

(4)Whether he had repeatedly complained to Tsang about the same. 

       On Tsang’s evidence in the 2^nd defendant’s case

25. Mr. Chan, counsel for the plaintiff, submits [in para. 8 of Submissions] that Tsang first says [in cross-examination] that before the 1^st defendant and he signed the Agreement on 25 August 2000, there had been no agreement between them (the 1^st defendant and him).  Counsel asks him why he had already recruited the plaintiff for the 1^st defendant on 24 August 2000.  He replies that there was already an oral agreement between them (the 1^st defendant and him) before 25 August 2000.  Counsel asks him to explain the contradiction.  He replies that the Court is a solemn place and counsel asks him again and again, and he has no choice but to say Ye Ye Ye.  I do not find his evidence credible.   

26. Mr. Sadhwani, counsel for the 3^rd defendant submits [in para. 35 of Submissions] that there was no reason for Tsang to handle the compensation cheques.  After all, the 1^st defendant had not proceeded with the purchase of the Truck. He replies that he had charged the 1^st defendant $50 for arranging the transport of each container.  He replies that it was his obligation to do so.  When asked why he had not simply directed the plaintiff to go to the 1^st defendant’s office in Kwai Chung to get the cheques.  He replies that the plaintiff was not willing even to go to his place to get the cheques.

27.  I notice his grumble [in cross-examination] that the 1^st defendant charged him $500 reciprocally.  I do not see any rationale for his kindness.  First, there was no legal obligation because the charge for arranging transport for the 1^st defendant had nothing to do with the task of the 1^st defendant to compensate its own (the 1^st defendant’s) employee.  Second, there was no moral obligation, either, because the 1^st defendant charged him 10 times ($50 : $500) reciprocally.  Whether the plaintiff was unwilling to collect the cheques in the 1^st defendant’s office in Kwai Chung was a matter entirely for the plaintiff and not of his concern.  I do not find his evidence credible.           

28.  28. Mr. Sadhwani refers [in para. 36 of Submissions] to Tsang’s evidence [in evidence-in-chief] that on 31 August 2000, he had told the plaintiff that the 1^st defendant was the employer.  However, he says [in cross-examination] that despite the plaintiff’s ineligibility due to old age he still told the plaintiff that the 1^st defendant would arrange for MPF.  He regarded it important to make it clear that the 1^st defendant was the plaintiff’s employer.  I do not find his evidence credible.           

29. At length he has described how he excised his firm’s name from the top part of the work-done schedule and photocopied the resulting blank forms for the plaintiff.  He gave the plaintiff only the revised blank forms to make sure that the plaintiff knew he was not the employer.  Given his intense prudence in handling this relationship issue, I do not see why he had not put anything into writing.  I do not find his evidence credible.         

29. 30. Mr. Chan refers [in para. 11 of Submissions] to Tsang’s mention [in his statement to Lam, dated 4 December 2001, at D 103] that he could not remember whether he had told the plaintiff that the 1^st defendant was the actual employer.  He explains [in cross-examination] that Law (of the 1^st defendant) just asked him to tea and to give a statement to someone from the insurance company.  He did not know Lam of the insurance company.  Lam assured him that it would only be a casual statement.  In the restaurant, the television was noisy and people were talking and interrupting.  He gave casual answers and signed the statement.  I do not see how he could be so causal with the statement.  It was obvious a matter of great importance to him.  He could face serious financial consequences if the matter developed against his interest.  I do not find his evidence credible.

30.  31. He is not satisfied [in cross-examination] with various parts of his statement [Statement to Toplies, dated 4 December 2001, BD 97-99].  He now marks them out with highlight pens.  He says he had reasons to sign the statement, though.  First, he could not read clearly as he had no reading glasses at that time.  Second, the television was noisy and Law was barging in all the time.  Third, he thought it was a causal statement.  Fourth, he was asked to sign.  However, he says subsequently that he still managed to briefly read this statement without reading glasses.  Mr. Sadhwani suggests that it did not matter that he had no reading glasses.  He replies that he does not know how to answer this.  I do not find his evidence credible.

32. Mr. Sadhwani [in para. 22 of Submissions] criticizes that he had not marked out and therefore accepts the following:

The proprietor of [the 1^st defendant], Mr. Law and I are good friends.  We have known each other for many years, and there are business transactions between us.  Sometimes, I would use my vehicle(s) and driver(s) to do the transportation work for the order(s) obtained by [the 1^st defendant].  Sometimes, if I cannot finish my own work, I would also ask Mr. Law to arrange his vehicle(s) to transport the goods for me.  I would then calculate our respective costs with him later.  [The plaintiff] was employed by me for and on behalf of [the 1^st defendant].  Originally, Mr. Law and I had a Sale and Purchase Agreement.  The Agreement was that he would purchase a container tractor with Registration Number EP 9717 from me.  This Agreement between him and me was made orally and there was no signed written documents.  Mr. Law agreed that he would purchase my vehicle as mentioned above with HK$120,000.00. [at D 101]

He stated that it was only an oral agreement.  Counsel submits that the written Agreement [dated 25 August 2000, at D 133] was not in existence on the date of the meeting, 4 December 2001.  Besides, the written Agreement quoted a price of “$100,000.00” not “$120,000.00”.  It was a subsequent fabrication by the 2^nd defendant.  I agree.   

33. He says [in evidence-in-chief] that he had told the 1^st defendant in the same afternoon after the accident that the plaintiff was day-off.  Counsel for the plaintiff asks why he has never mentioned it before.  He replies that it was because the plaintiff was the 1^st defendant’s employee, not his own employee.  I think it obvious that this issue goes to the heart of the plaintiff’s claim.  I do not find his evidence credible. 

34. I do not find him a credible witness.  I have serious doubts in the following:

(1)  Whether there was any agreement with the 1^st defendant for the intended sale of the Truck;

(2)  Whether there was any agreement with the 1^st defendant for the employment of the plaintiff for and on behalf of the 1^st defendant;

(3)  Whether he had ever told the plaintiff that the 1^st defendant was the employer;

(4)  Whether he had given any keys of the Truck to the 1^st defendant;

(5)  Whether the 1^st defendant had any possession, custody or control of the Truck.

(6)  Whether the Truck had missing handrails, a slippery and loose ladder. 

       On Lam’s evidence in the 3^rd defendant’s case

35. I find his evidence credible and reliable.   

The case as found

36. I do not find either the plaintiff or the 2^nd defendant credible.  I bear in mind the observations of Lord Brandon of Oakbrook in Rhesa Shipping Co SA v Edmonds & Anor., the Popi M [1985] 2 All ER 712, at 718:

…  [T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties.  He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.  No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so.  There are cases, however, in which, owing to the unsatisfactory state of the evidence or other wise, deciding on the burden of proof is that only just course for him to take.

…

…  [T]he legal concept of proof of a case on a balance of probabilities must be applied with common sense.  It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not.  If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.         

37. The plaintiff has the onus of proof.  His oral evidence is rejected.  He has failed to prove, on the balance of probabilities, how the accident happened.  There is no fact as found to pray in aid res ipsa loquitur.  The 1^st and/or the 2^nd defendants, hence the 3^rd defendant, are not liable in any way to the plaintiff for the injuries sustained in the accident.      

The Conclusion

38. I dismiss the plaintiff’s claim against the 2^nd and the 3^rd defendants.  Besides, the plaintiff shall recover nothing from the 1^st defendant by way of damages or otherwise. 

39. As between the plaintiff and the 1^st defendant, I order nisi that the plaintiff shall not get the costs of this action.  The 2^nd defendant is successful in its defence but Tsang is not a credible witness.  He has put up a lot of smokescreen in defence.  Substantial time and resource have been taken up by the plaintiff to clear up the smokescreen.  As between the plaintiff and the 2^nd defendant, I order nisi that the 2^nd defendant shall only get half of the costs of this action, with certificate for counsel.  As between the plaintiff and the 3^rd defendant, I order nisi that the 3^rd defendant shall get the costs of this action, subject to any orders already made, with certificate for counsel.  The plaintiff’s own costs shall be assessed under legal aid regulations.  Such cost orders shall become absolute after 14 days from today.

Dated this 11 January 2006