MA YUET PONG v. CHAN KAR WAI AND OTHERS

HCPI 577/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 577 OF 2010

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JUDGMENT

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1.  This is a personal injuries claim arising out of an accident on 29 August 2008, when the plaintiff was hit by a forklift (“the Forklift”) driven by the 1^st defendant, who was an employee of the 2^nd defendant, at the raised lift platform (“the Platform”) of an industrial building at No 8 Sze Shan Street, Yau Tong, Kowloon (“the Building”), which was owned and managed by the 3^rd defendant.

2.  The plaintiff has already obtained interlocutory judgment against the 1^st defendant on 11 February 2011.  The 2^nd and 3^rd defendants dispute liability, and so this is the trial of the claim against them and the assessment of damages against the 1^st defendant.

LIABILITY

(i) The accident

3.  The plaintiff himself testifies at the trial.  At the time of the accident, he operated a business known as “海聯公司” (Hoi Luen Company, hereinafter referred to as “Hoi Luen”).  Starting from April 2007, Hoi Luen had been engaged by Flextronics Logistics (HK) Limited (“Flextronics”) as a contractor to carry goods for the 2^nd defendant which carried on business of a logistics company.  Flextronics was a sub-contractor of the 2^nd defendant.

4.  The 2^nd defendant was a tenant in the 2^nd floor of the Building.  On the day of the accident, the plaintiff had to carry certain goods to the 2^nd defendant’s office and warehouse in the Building.  There were all together 4 lifts in the Building, but lifts numbers 1 and 2 (“Lift 1” and “Lift 2”) mainly served the office and the warehouse of the 2^nd defendant.

5.  Shortly before the accident, the plaintiff was waiting for Lift 1 at the Platform.  At that time, the 1^st defendant operated the Forklift to carry certain goods from Lift 1 to the Platform.

6.  There were stacks of goods placing in different parts of the Platform.  When the 1^st defendant was reversing the Forklift from Lift 1, the plaintiff was standing near a stack of the goods on the right side of the Forklift.  By that time, the plaintiff thought that the 1^st defendant would reverse the Forklift to the left side, and so he would be in a safe position.  Unfortunately, the Forklift reversed to the right side and the wheel of the Forklift hit the left leg of the plaintiff.

7.  During cross-examination, the plaintiff agrees that the speed of the Forklift was rather slow, and he lost his concentration on the Forklift for a split of second before the accident.

8.  The 3^rd defendant has called its manager, Mr Ng Wai Ching (“Mr Ng”), to testify at the trial.  According to Mr Ng, the tenants of the Building were allowed to operate forklifts at the Platform. The 3^rd defendant had posted certain warnings at various places near the Platform warning the operators of forklifts to drive slowly at the Platform. After receiving certain complaints that the forklift operated by the 2^nd defendant was too fast, the 3^rd defendant issued a letter to the 2^nd defendant dated 18 July 2008 warning the operators of the forklift to drive slowly at the Platform.

9.  The 3^rd defendant had employed 6 security guards to work in the Building at the material time, and there would always be 1 or 2 security guards stationed near Lifts 1 and 2 at the Platform. Instruction had been given to the security guards not to allow operators of forklifts to drive too fast at the Platform.

10.  According to Mr Ng, Lifts 1 and 2 were mainly to serve the 2^nd defendant.  There was another tenant using these two lifts, but there was very little traffic for that particular tenant because it was only a bank which rented a unit at the Building to store documents.

11.  Both Lifts 1 and 2 were used to transport goods for the logistics business of the 2^nd defendant.  Since there was very little traffic for passengers, Mr Ng claims that it was not practicable to separate the traffic for passengers and forklifts at the Platform, ie restricting one lift and the area around it for passengers and the other lift and the area around it for the operation of forklifts.

12.  The 2^nd defendant has arranged Mr Leung Yin Yu (“Mr Leung”), who was the Distribution Centre Manager of the 2^nd defendant at the time of the accident, to testify at the trial.  According to Mr Leung, the maximum speed of the Forklift was rather slow (20 km per hour), and there was a siren sound when the Forklift was reversing to warn others about the approaching Forklift.  At the material time, the 2^nd defendant only operated one forklift (ie the Forklift) in Lifts 1 and 2.  Further, it was not possible for the 2^nd defendant to separate the traffic for passengers and the Forklift at the Platform, because it would seriously affect the operation and the efficiency of the work of the 2^nd defendant.  Further, the 2^nd defendant had issued instruction to all its contractors, including Flextronics and the plaintiff, warning them not to stay in the area when the Forklift was operating at the Platform of the Building.

13.  There is no reason for me to doubt the creditability of the evidence of the plaintiff’s and the defendants’ witnesses, and so I accept their evidence as the truth.

(ii) Liability of the 2^nd defendant

14.  In my judgment, it is clear that the 1^st defendant was operating the Forklift negligently at the time of the accident.  In reversing the Forklift, the 1^st defendant had a duty to make sure that the intended path of the Forklift was clear.  In hitting the plaintiff, the 1^st defendant had obviously failed to keep a proper look-out of the plaintiff in reversing the Forklift.  Hence, the 1^st defendant is liable for the accident.

15.  There is no dispute that the 1^st defendant was, at the time of the accident, driving the Forklift in the course of his employment with the 2^nd defendant.  In such circumstances, there is no question that the 2^nd defendant is vicariously liable for the negligence of the 1^st defendant.

(iii) Liability of the 3^rd defendant

16.  I then turn to the liability of the 3^rd defendant.

17.  The 3^rd defendant was the owner of the Building, and the accident occurred at the common part of the Building. The 3^rd defendant had employed a few security guards to station in various parts of the Building including the Platform.

18.  Although the 3^rd defendant accepts that it was one of the occupiers of the Platform in which the accident occurred, the accident was caused by the manner in which the 1^st defendant controlled the Forklift at the time of the accident.  In other words, the accident was caused by the activity of the 1^st defendant and did not relate to the physical state of the premises, and so the present case is one concerning “activity duties” rather than “occupancy duties” (see: Gauchan Som Prasad v Hin Wah Construction Company Limited, unreported, DCPI 2398/2009, decision of HH Judge Lok on 26 July 2011, at §§26-30).  Since the physical state of the premises was not unsafe, the 3^rd defendant should not be held liable for breach of the common duty of care under the Occupiers Liability Ordinance, Cap 314.

19.  Despite that, the 3^rd defendant may still owe a common law duty of care towards the plaintiff.  Being the owner of the Building, the 3^rd defendant was responsible for the management of the common part of the Building.  If the 3^rd defendant was aware of some activities in the common part of the Building which was reasonably foreseeable to cause injury to any visitors of the Building, the 3^rd defendant owes a common law duty of care to prevent the causing of such injury.

20.  As the 3^rd defendant had received complaints about the operation of the Forklift at the Platform, it was, in my judgment, reasonable foreseeable that the operation of the Forklift at the Platform might endanger the safety of the visitors of the Building such as the plaintiff. However, since it was the act of a third party (ie. the 1^st defendant) which directly caused the injury to the plaintiff, the issue here is whether the 3^rd defendant was in breach of such common law duty of care.

21.  It is trite law that the duty on the 3^rd defendant is not an absolute one.  A defendant will be regarded as in breach of a duty of care if his conduct falls below the standard required by the law.  The standard normally set is that of a reasonable and prudent man.

22.  It is common ground that the 3^rd defendant had received some complaints about the operation of the Forklift at the Platform.  After receiving such complaints, the 3^rd defendant sent a letter to the 2^nd defendant warning the operators of the Forklift to drive slowly at the Platform.  The 3^rd defendant also posted warnings at different places near the locus in quo.  Apart from these measures, the 3^rd defendant had employed security guards to station at various places at the Platform.  In such circumstances, had the 3^rd defendant discharged the common law duty of care?

23.  In answering such question, one has to examine what more could have been done in the circumstances to prevent the occurrence of the accident.  At the trial, both the plaintiff’s and the 3^rd defendant’s counsel agree that the only thing that the 3^rd defendant could have done was either to ban the operation of the Forklift at the Platform or to separate the traffic for the passengers and the Forklift at the Platform.  Was it the reasonable to impose a duty on the 3^rd defendant to take either of these measures?

24.  In order to impose such duty on the 3^rd defendant, the plaintiff has to establish that the 3^rd defendant should and could ban the operation of the Forklift at the Platform or to separate the traffic for passengers and the Forklift at the Platform.  Despite that the 3^rd defendant was the owner of the Building, the accident occurred at the common part of the Building.  The plaintiff has produced nothing to the court to show that the 3^rd defendant did have the power either to ban the operation of the Forklift or to separate the traffic for passengers and the Forklift at the common part of the Building.  Hence, I have doubt in my mind as to whether the 3^rd defendant was entitled to do so.

25.  Further, the use of forklift is considered as a safe method of lifting and transporting heavy goods, because it can avoid back injury to labourers in the case that the goods have to be transported manually. Provided that the operators drive the Forklift safely, it should not cause any injury to other visitors of the Building.  Hence, even if the 3^rd defendant had the power to do so (which I do not accept it to be the case), one should not expect the 3^rd defendant to ban the operation of the Forklift at the Platform.

26.  For the separation of traffic, it would require the 3^rd defendant to impose rules to the effect that passengers and other workers could only use one of the two lifts at the Platform and the Forklift to use the other lift.  This would have a grave impact on the operation of the 2^nd defendant.  Again the plaintiff has produced nothing to show that the 3^rd defendant was in a position to impose rule to separate the traffic at the Platform which was the common part of the Building. Further, there was only one active tenant (ie the 2^nd defendant) who would be using Lifts 1 and 2 at the Platform.  In other words, only persons concerned with the 2^nd defendant’s business would be present at the Platform.  The plaintiff, who was a sub-contractor working for the 2^nd defendant, entered the Platform upon the 2^nd defendant’s invitation and for the business interest of the 2^nd defendant.  In such circumstances, it would be quite unreasonable for the 3^rd defendant to impose rules or to give direction to the 2^nd defendant relating to its operation at the Platform.

27.  Further, I also find it impracticable for the 3^rd defendant to impose such kind of rule.  For the separation of traffic, it would virtually mean that no person shall be allowed to use the lift assigned for the operation of the Forklift or to stay at the Platform in the area outside that particular lift.  However, even if that particular area at the Platform was assigned for the operation of the Forklift, there bound to be some workers working in that area to assist the loading and unloading operation.  In such circumstances, how could the 3^rd defendant allow such workers to stay in the area whilst banning other persons from entering that area?  How did the 3^rd defendant enforce the rule?  Did it require the 3^rd defendant to erect physical barrier to separate the traffic?  In my judgment, these unanswered questions show the impracticability of the proposed solution.

28.  Further, one should not lose sight of the fact that the 2^nd defendant was operating a logistics business in the Building and the accident occurred in the operational area of its business. Under such circumstances, it was impracticable for the 3^rd defendant to interfere with the normal operation of the 2^nd defendant’s business in the way as suggested by the plaintiff.  Hence, I find that the 3^rd defendant had not breached the duty of care and the plaintiff’s claim against the 3^rd defendant has to be dismissed.

(iv) Contributory negligence

29.  I then turn to the defence of contributory negligence.

30.  Shortly before the accident, the plaintiff noticed that the Forklift was reversing from Lift 1 in the direction of the edge of the Platform.  By that time, the plaintiff thought that the 1^st defendant would reverse the Forklift to the left side and so he chose to stand near a stack of goods on the right side of the Forklift.  However, since he was standing near to the path of the reversing Forklift, there was always a chance that the Forklift would reverse to his side.  Hence, the plaintiff should have kept a proper look-out for the reversing Forklift at all material time.  Unfortunately, as conceded by the plaintiff himself, there was a momentary loss of concentration at the most critical time when the Forklift was nearest to him, and as a result he was hit by the reversing Forklift.  As the plaintiff had failed to keep a proper look-out for the approaching Forklift, I find that the plaintiff is guilty of contributory negligence.

31.  Despite such finding, I am of the view that the accident was mainly caused by the negligence of the 1^st defendant. As he was operating a sizeable machine which would endanger the safety of the persons at the Platform, it was his main responsibility to drive the Forklift in a safe manner and to keep a proper look-out at all material time.  Hence, I apportion only 20% of the responsibility of the accident to the plaintiff.

(v) Apportionment of the blame between the defendants

32.  The 3^rd defendant has issued contribution proceedings against the 1^st and the 2^nd defendants.  However, based on my decision on the issue of liability, it is quite unnecessary, and in fact not appropriate, for me to deal with the apportionment of blame between the defendants.  As I find that the 3^rd defendant is not liable and should not be blamed for the accident, it is simply impossible for me to apportion the blame between the defendants themselves.  Hence, I do not propose to make any order in the contribution proceedings.

QUANTUM

(i) Injuries and permanent disabilities

33.  I then turn to the issue of quantum.

34.  The plaintiff was aged 52 at the time of the accident having been born in December 1955.

35.  After the accident, the plaintiff was admitted to United Christian Hospital and was diagnosed as suffering from fractured left distal tibia, fibula, left second to fourth metatarsals.  Emergency operation was performed for closing reduction and internal fixation of tibia and fibula on 4 September 2008, and he was discharged home on 12 September 2008.  Thereafter, the plaintiff continued to receive outpatient orthopaedic treatment until March 2010.  The plaintiff was granted sick leave from the date of the accident until 9 June 2009.

36.  The fractures have healed well.  At present, the plaintiff is able with walk with normal gait.  However, there are residual pain and stiffness in the left ankle and residual pain in the left forefoot.  There is left thigh and calf wasting though the strength is preserved.  There is reduced range of motion of the left ankle in all directions.  The implants are still in positions, although there is a disagreement between the parties’ medical experts as to whether the implants should be removed.  After obtaining the advice of the doctors, the plaintiff does not wish to have the implants removed at this stage which, to me, is a reasonable decision.

37.  The plaintiff’s daily activities are basically unaffected, but he suffers from pain in the left leg when he runs.  He would feel tired when he walks for more than 2 hours.  The plaintiff also cannot carry object of over 80 pounds and walk for more than 10 minutes.  He also cannot lift object of over 80 pounds from floor to waist level or object of over 50 pounds from waist to head level.

38.  Prior to the accident, the plaintiff was a healthy and sporty person.  The plaintiff had been an International Open Water Diver and an Open Water Diving Instructor since 1985 and 1993 respectively.  By reason of his injuries, he is not able to resume diving activities.

(ii) Pain, suffering and loss of amenities (“PSLA”)

39.  As the plaintiff has recovered well after the accident and his daily activities are basically unaffected, the plaintiff’s injuries, in my judgment, fall below the “serious injury” category according to the Lee Ting Lam scale.  After studying all the authorities referred to me by the parties, I am of the view that the plaintiff’s injuries in the present case are very similar to those suffered by the plaintiff in Sukhdeep Singh v Chow Kin Hung, unreported, HCPI 202/2010 (decision of M Chan DHCJ, as she then was, on 21 September 2011), in which $300,000 was awarded as damages for PSLA.  To a certain extent, the injuries suffered by the plaintiff in the present case are slightly less serious.  However, the plaintiff here was a very healthy person before the accident and his injuries have seriously affected the sporting activities he used to enjoy before the accident.  Hence, a similar award of damages for PSLA should be made in the present case.  Taking into account the effect of inflation since the case of Sukhdeep Singh, I award a sum of $330,000 under this head of damages.

(iii) Loss of pre-trial earnings

40.  Before the accident, the plaintiff operated a business under the name of Hoi Luen.  Starting from April 2007, Hoi Luen worked as a sub-contractor for Flextronics for carriage and transportation of goods. Flextronics was in turn a sub-contractor of the 2^nd defendant.

41.  According to the plaintiff, the average monthly income of Hoi Luen was about $20,000 before the accident.  The plaintiff had not filed tax return in respect of the business of Hoi Luen.

42.  As the plaintiff was the only person working for Hoi Luen and he could not resume such kind of work after the accident, the plaintiff claims for full loss of earnings from the date of the accident to 20 December 2009, which was the date when the plaintiff started to take up the alternative employment as a security guard.  After that, the plaintiff claims for partial loss of earnings based on the difference between the income that he would have earned but for the accident and the income of a security guard.

43.  The initial monthly income of the plaintiff as a security guard in December 2009 was about $7,150 a month (see: the statements of wages of the plaintiff issued by General Security Limited in the period from December 2009 to July 2010).  The plaintiff has since been promoted and his present monthly income is about $9,950 plus allowance.

44.  As I see it, there are two material facts which may affect the plaintiff’s claim for loss of earnings.  Firstly, it is common ground that the 2^nd defendant terminated the contract with Flextronics in February 2009.  According to the plaintiff, he used to work as an ordinary transportation worker earning a much lesser income of about $8,000 a month.  It was only when Hoi Luen obtained the contract from Flextronics that there was a substantial increase in his monthly income.  According to the 2^nd defendant, there was a general decline in logistics business in 2008 and as a result the 2^nd defendant terminated the contract with Flextronics in February 2009.  In such case, I would expect Flextronics would have similarly terminated the sub-contract with Hoi Luen, and so there is a serious doubt as to whether the plaintiff would have been able to earn the same level of income even without the accident.

45.  Secondly, the plaintiff has been suffering from back pain shortly after the accident and there is no evidence to show that such back pain was caused by the accident itself.  This is, in fact, a common complaint for workers engaging in manual works of lifting and carrying goods for a considerable period of time.  As the kind of work undertaken by the plaintiff before the accident required very good physique on his part, the plaintiff agrees during cross-examination that, even if there was no accident, he could not have worked as a carriage of goods contractor for a long period of time.

46.  The plaintiff was aged 52 at the time of the accident and is now aged 56.  Had there been no accident, the plaintiff would have suffered from back pain which would have prevented him from working as a manual labourer for a long period of time.  Further, the 2^nd defendant terminated the contract with Flextronics in February 2009.  In such circumstances, it was likely that the plaintiff would have lost the opportunity of earning about $20,000 a month in any event.  In other words, even if there was no accident, the plaintiff would have had to find alternative work or employment after February 2009.  Taking into account the age and the background of the plaintiff and his back pain, I do not think that he would have been able to find a job with a higher income than that of a security guard.

47.  Having made such observations, the plaintiff should be able to claim for full loss of income from the date of the accident to the end of February 2009.  Although Mr Gidwani, counsel for the 3^rd defendant, tries to attack the creditability of the plaintiff’s evidence about his monthly income before the accident, I find the plaintiff to be an honest witness and accept his evidence as the truth.  Mr Gidwani also asks the court to take into account the plaintiff’s tax liability in assessing the quantum of loss of earnings.  However, taking into account the relatively low income of the plaintiff and the tax allowances that could possibly be enjoyed by him, I do not propose to make any deduction in this regard. Hence, the loss of income from the date of the accident to February 2009 can be assessed as follows:

$20,000 x 6 1/15 months = $121,333

48.  Even if there was no accident, I would expect the plaintiff to have spent about 3 months to look for alternative employment after the termination of the contract by Flextronics in February 2009.  In such circumstances, I do not allow any claim for loss of earnings from March to May 2009.

49.  From June to 20 December 2009, I allow the plaintiff’s claim for loss of earnings on the basis that he has lost the income that he would have earned from his alternative employment as a security guard. Hence, the loss of income for such period of time can be assessed as follows:

$7,150 x 6 2/3 months = $47,667

50.  In my judgment, the plaintiff should not be allowed to claim for any loss of earnings after 20 December 2009.  As I have mentioned above, had there been no accident, the plaintiff would probably have been ended up in taking up the same employment as a security guard, and there is no evidence that the plaintiff would have been able to earn a high income after 20 December 2009 had there been no accident.  In such circumstances, I disallow any claim for loss of earnings after 20 December 2009.

(iii) Loss of future earnings

51.  For the same reasons, I disallow any claim for loss of future earnings.

(iv) Loss of earning capacity

52.  The plaintiff now has a stable employment working as a security guard, and he is now nearly 57 years old.  Even without the accident, this would be a suitable employment for him taking into account his age and background, his back pain, the physical demand of his previous work and the termination of the carriage of goods contract by the 2^nd defendant.  The injuries of the plaintiff would have some impact if he continues to work as a manual labourer.  However, if he continues to work as a security guard, I do not accept that the injuries would put the plaintiff at a disadvantaged position in the labour market.  Hence, I disallow any claim for loss of earning capacity.

(v)      Other special damages

53.  The plaintiff and the 3^rd defendant agree on the quantum of other special damages in the sum of $10,000.  Although such agreement is not binding on the other defendants, taking into account the figures claimed by the plaintiff in the Revised Statement of Damages and the evidence of the plaintiff, I find such agreed quantum to be reasonable.  I therefore award $10,000 as other special damages.

54.  In conclusion, the quantum of the plaintiff’s claim can be summarised as follows:

(i)	PSLA	: $330,000
(ii)	Pre-trial loss of earnings	: $169,000
(iii)	Other special damages	: $10,000
	Sub-total	: $509,000
	Less 20% contributory negligence	: $101,800
	Total	: $407,200

55.  Based on the aforesaid, I grant judgment in favour of the plaintiff against the 2^nd defendant in the sum of $407,200.  I award interest on PSLA at the rate of 2% per annum from the date of the writ to the date hereof and on pre-trial loss of earnings and other special damages at the rate of 4% per annum from the date of the accident to the date hereof.  I also dismiss the claim against the 3^rd defendant.

56.  In respect of the assessment of damages against the 1^st defendant, I propose to take into account my finding on contributory negligence in assessing the damages against the 1^st defendant.  I therefore assess the damages in the same amount of $407,200 against the 1^st defendant together with interest as stated in the preceding paragraph.  However, this would be a nisi order as the plaintiff may wish to make further submission in this regard.

57.  I also make the following nisi order relating to the issue of costs:

(i) the 1^st defendant do pay the costs of the assessment of damages to the plaintiff;

(ii) the 2^nd defendant do pay to the plaintiff the costs of the action;

(iii) the plaintiff do pay to the 3^rd defendant the costs of the action including the costs of the contribution proceedings; and

(iv) the plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

58.  The aforesaid order nisi shall be made absolute 14 days after the date of the handing down of this Judgment.