LAM PAK LEUNG v. IP TSZ PING AND OTHERS

HCPI 95/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 95 OF 2013

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JUDGMENT
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1.  This is a trial on liability in respect of the plaintiff’s (“Lam”) personal injury action.

2.  At all material times, Lam was a labourer employed[1] by the 2^nd defendant (“Chan”) to carry out loading and unloading work at platform no 21 of MTR Hung Hom Freight Terminal, Kowloon, Hong Kong (“Terminal”).  The 1^st defendant (“Ip”) was a forklift truck driver employed by Chan to work at the Terminal. 

3.  The Terminal was leased to the 3^rd defendant (“LGW”) who carried out a logistics business there.  However, much of the operation at the Terminal was subcontracted by LGW to Chan.  I shall elaborate on this below. 

The accident

4.  On 5 February 2010 at about 10:00 am, Lam and his co-worker, Mr Li Chi Keung (“Li”)[2], were unloading goods from a 45-feet container near column B19 at the Terminal.  At that time, Ip was operating a forklift truck (“Truck”) to transport the unloaded goods to a storage area.  In the course of the operation, Ip stopped the Truck at a distance, according to his estimate, within 2 to 3 ft from Lam, and alighted from it without switching off its engine.  Within a matter of seconds, the Truck unexpectedly moved forward.  Lam was struck by its right fork which penetrated his right lower limb.  At the time of the accident, Lam was unloading the container and had his back to the Truck. 

5.  As a result of that accident (“Accident”), Lam sustained serious injuries and had to undergo a series of operations from 2011 to 2014.  It is the recommendation of Lam’s orthopaedic expert that he should undergo further operations to try to correct the deformity in his right foot, whereas LGW’s orthopaedic expert recommends amputation of the right foot because he takes the view that it is no better than a well-fitted prosthesis. 

Interlocutory judgment against Ip and Chan

6.  Neither Ip nor Chan had served any defence in this action.  By an interlocutory judgment dated 5 November 2013, it was adjudged that Ip and Chan do pay Lam damages to be assessed and costs.  Hence, this trial is solely about the liability of LGW in respect of the Accident.

7.  It should be mentioned that Ip was declared bankrupt on 2 March 2010 upon his own application.  Whereas Chan had ceased his business on 15 April 2011.  None of the defendants had taken out any insurance which might cover the Accident.

Issues in this trial 

8.  There is no dispute over the Accident.  The dispute in this trial is solely confined to the question whether LGW has any legal liability arising from the Accident.  In this regard, 2 causes of action are relied upon by Lam against LGW – breach of occupier’s liability and the tort of negligence.

Witnesses

9.  Both Lam and Li gave evidence at the trial in support of Lam’s case.  On behalf of LGW, 3 witnesses were called to give evidence, namely, Mr Yiu Kwai Bor (“Yiu”) who was a shareholder and director of LGW; Mr Wong Chi Kit (“Wong”); and Mr Yik Ming Ho (“Yik”).  The latter 2 witnesses were (and still are) employees of LGW at the time of the Accident.

10.  The dispute in the evidence is not extensive. Such dispute revolves around the question of LGW’s control over the operation carried out at the Terminal. Appearing on behalf of Lam, Ms Tjia says that the control of and participation in the operation at the Terminal on the part the LGW gave rise to its duty of care to Lam.  Before dealing with that, I shall look closer at the circumstances of the Accident because there is an argument whether any breach of duty on the part of LGW had caused the Accident.

Cause of the Accident

11.  The Accident was investigated by the Labour Department (“Department”) on the very day with the assistance of a Senior Mechanical Engineer from the Department’s Technical Support Unit. 

12.  After various tests were carried out, it was concluded that the Truck was functioning normally and it was unlikely that the Accident was attributable to mechanical irregularity.  Further, the Truck was found to have stopped on level platform[3].  Hence, the vehicle would not have moved by the force of gravity.

13.  As regards the action of Ip, according to a statement of declaration made by him to the Department dated 24 February 2010, he said that he had the “impression” that he should have put the Truck into neutral gear (印象中應該有把波棍拍去空波).  He then pulled the handbrake before leaving the Truck[4]. I should explain that the Truck had only 3 gear positions – forward, neutral and reverse.  It appears from the commentaries on a photograph[5] of the control instruments of the Truck that it operated without a clutch. 

14.  Perhaps unsurprisingly, the Department was unable to fully explain the cause of the Accident.  There was a suggestion that the handbrake was not fully engaged.  However, improper use of the handbrake would not by itself cause the Truck to move bearing in mind that it was on a level platform. 

15.  I believe that the weight of the evidence suggests that Ip did not put the Truck into neutral gear, ie, the Truck was in gear, and it must be the forward gear which was engaged because the Truck moved forward at the time of the Accident.  Ip was certainly unsure if he had engaged the neutral gear.  The Truck would not have moved without force and the only source of force was its own engine.  It is quite possible that Ip had left the Truck in forward gear but had pulled the handbrake which stopped the Truck from moving when he left the vehicle.  However, the handbrake (whether properly engaged or not) was unable to keep the Truck stationery for long.  I see no other explanation for the movement of the Truck. 

16.  Unfortunately, this analysis was not considered by the Department.  On the other hand, even if there were no explanation for the movement of the Truck, I would have held that Lam is entitled to rely upon the rule of res ipsa loquitur : see Clerk & Lindsell on Torts, 21^st edn, rubric 8-184.

17.  It was pointed out in the Department’s investigation report that the engine of the Truck should have been switched off before it was left unattended, and that the forks should have been lowered to the ground level to render them harmless (they were raised at a height of about 20 cm at the time of the Accident).  These are perfectly sensible observations and I agree with them.

18.  To conclude, there are a number of and contributing factors to the Accident : (i) the Truck was left unattended with it engine running and, more likely than not, in gear; (ii) it was left very close to where Lam was working; and (iii) the forks were raised.

Relationship between LGW and Chan 

19.  To examine the control of and/or participation in the operation which was carried out at the Terminal, I need to start off with the relationship between LGW and Chan. 

20.  There is no dispute that the Hung Hom Freight Terminal was owned by MTR Corporation Ltd who leased a part of it to China Travel Service (Cargo) Hong Kong Ltd.  In turn, China Travel Service (Cargo) Hong Kong Ltd leased part of those premises (the Terminal) to Manlitat Logistics Ltd (“Manlitat”) who then leased the same to LGW.  There is no dispute that Manlitat and LGW were related in that they had common shareholders and directors.  

21.  The logistics operation that was carried out at the Terminal consisted mainly of the loading and unloading of containers.  The containers would be carried on the back of container lorries and were not required to be disengaged from the lorries for purpose of loading and unloading because those operations were carried out on a podium which was about 1 m above the parking bays where the lorries would be positioned.  In other words, the podium would be about level with the bottom of the containers. 

22.  In addition to the loading/unloading of containers, the operation involved the receipt of cargoes from freight forwarders for export and the collection of imported cargoes by freight forwarders.  Further, part of the Terminal was used for cargo storage.

23.  Pursuant to 2 written contracts dated respectively 17 and 27 October 2009, the works concerning the loading/unloading of containers were subcontracted by LGW to Chan.  Under clause 2 of the earlier contract, Chan was responsible for “warehouse works like the receipt and transfer of cargoes, unloading and loading of containers and sorting the cargoes” (交收貨物、拆櫃、入櫃、分貨等的倉務工作).  Chan would be paid at a rate based on the volume of cargoes (in cubic meters) handled.  Under clause 4, he would be responsible for taking out insurance for his employees.  Under clause 5, LGW was required to provide the place of work, forklift trucks and the requisite tools.  However, Chan was responsible for the maintenance of the place of work, forklift trucks and tools. 

24.  The later of the written contract provided for the lease of the Terminal by LGW to Chan at HK$160,000 per month.  In addition, 7 forklift trucks were rented to Chan at HK$21,000 per month.  Clause 3 provided that the operation at the Terminal was the sole responsibility of Chan and over which LGW had no say.  Under this contract (clause 2(2)), Chan was entitled to 50% of the charges received by LGW.  That obviously applied to the cargoes of LGW’s customers which were handled at the Terminal.  In respect of Chan’s own business, there was no obligation to make any payment to LGW (clause 2(4)).

25.  It is not disputed that LGW had an office (“Office”) situated on ground level adjacent to the podium.  It had an area of about 300 sq ft[6]. The Office was manned by 4 employees of LGW[7], namely, Wong, Mr Cheng Chung Ho (“Ben[8]”), Yik and a person called Hung Chai.  There was also a manger, Mr Chung Ping Yu, but he was based at a different office situated at Kwai Chung. Amongst the staff working at the Office, Wong was apparently the most senior followed by Ben.

26.  It appears from the evidence that the work carried out by LGW’s staff at the Office involved mainly dealing with their customers, processing the customers’ orders and issuing instructions to Chan’s workers who had to carry out the loading/unloading tasks.  Those instructions were in writing and referred to as “Load Plan” (for export) and “Devanning Plan” (for import).  The forgoing is uncontroversial. 

27.  What is highly contentious is whether Wong and Ben, who were respectively responsible for compiling the Devanning Plans and Load Plans, carried out the role of supervising the loading/unloading work and giving oral instructions to the workers. 

28.  It is also contentious whether Chan’s workers had to report their arrival for work every morning to Wong.  However, it is not disputed that (a) lateness for work would result in a fine for the workers and (b) before the workers concluded their work every day they would consult LGW’s staff to see if there was any more container to be worked on.  Further, there is no challenge to Lam’s evidence that every evening Ben would be asked about the volume of work for the next day so that additional labourers could be arranged if necessary. 

29.  There were CCTVs used to monitor the loading/unloading area.  The monitors for the CCTVs were kept inside the Office.  The uncontested evidence is that the recordings would only be examined when disputes arose over the operation, eg, when goods were damaged. 

30.  Turning to Chan’s workers at the Terminal, there were 3 regular labourers.  Additional casual labourers would be engaged where necessary.  There were also 7 forklift truck drivers.  One of them was called “Dai See Hing” (“DSH”) meaning big senior brother.  There was a desk next to a pillar on the podium and it was usually manned by Ah Hung.  Altogether, there were 11 regular staff working for Chan.

31.  There is no dispute that Chan rarely appeared at the Terminal.  It is reasonably clear from the evidence that there was no one occupying a managerial or supervisory position amongst Chan’s staff.  DSH may be regarded as a gang leader but the evidence does not suggest he had any supervisory role.  This is an important point when it comes to resolving the dispute over LGW’s participation in the operation.

LGW’s role in the logistics operation

32.  Given the absence of a manager or supervisor to lead Chan’s team of employees, and the fact that they were relatively unsophisticated people, I have no difficulty accepting that Wong did carry out a roll call every morning to ensure the punctuality of the workers.  There is no suggestion that Chan had any logistics business of his own at the Terminal. In all probability, the bulk if not all of the business there was that of LGW. Hence, there was every reason for LGW to exert some control over the workers. This finding is consistent with the fact that fine would be imposed on lateness and that the people at the Office would be consulted before the workers ended their working day. 

33.  In respect of the supervision and the giving of oral instructions to the workers from time to time in the course of the loading/unloading operation, I have no difficulty accepting the evidence of Lam and Li in this regard, ie, such supervision and oral instructions were indeed given to them by Wong and Ben. 

34.  It has been said by Ms Wong, who appeared for LGW, that there is an inconsistency between Lam and Li on the frequency of such supervision/instruction.  I do not believe that the point is reflected by the evidence.  In any case, the difference, if any, is probably a matter of divergence of recollection on matters which took place a number of years ago.  I do not believe that anything turns on the precise frequency of the supervision/instruction.  Lam did try to put a figure on the frequency in question.  Such evidence is not altogether clear.  However, at the lowest, there was 1 or 2 occasions every month where the loading/unloading operation was under the supervision/instruction of Wong/Ben. 

35.  Three types of situation were explored in evidence where there was a need for supervision or instructions : priority handling of certain containers; special goods or valuable goods which required extra care; and overloading of containers.

36.  Wong agreed in evidence that he had an interest in seeing that the instructions he issued in the Devanning Plan were complied with by the workers.  His refusal to acknowledge that unsophisticated workers might require some degree of supervision does not sit well with common sense. He was taxed in particular about the need to supervise the workers when valuable goods had to be identified.  He had no proper explanation for leaving that task entirely to the workers.  His suggestion that he would know that the Plans were not adhered to when he received complaints from customers cannot be taken seriously.  By that time, the delay to the unloading of priority container would have occurred and valuable goods would have been damaged or delivered to the wrong customers.

37.  Wong must have been alive to the fact that the work load for the workers could be very heavy[9] and that their income was tied to the amount of work they performed[10].  Therefore, even if the workers were provided with adequate information on the Plans to identify the valuable goods by way of markings or logos and numbers (I am not prepared to accept that the Plans contained adequate markings or logos because the evidence is unsatisfactory in this regard), it would be quite risky to leave the matter entirely to the workers. 

38.  Further, Wong agreed that there was no difficulty for him to go to the loading/unloading area, which was about 50 to 60 ft from the office.  Whilst I accept that Wong would have been busy with his paperwork, the evidence is that his supervision was only required from time to time.  Indeed, I find his evidence that he and Ben had kept themselves in the Office rather unreal.  Walking onto the loading/unloading area to supervise the work from time to time could not have been an unduly onerous task.  There was no reason why it would not be done when it was necessary. 

39.  I also accept the evidence that from time to time instructions were given by LGW’s staff to the workers to sweep the podium and to paint a yellow line which served to keep the outside transportation workers from the loading/unloading operation.  It is inherently probable that such instructions would come from LGW’s staff when there was no manager or supervisor leading the workers.

Credibility of the witnesses

40.  It is convenient to deal with this topic here. I find both Lam and Li to be credible witnesses.  There is nothing inherently improbable in their evidence.  I detected no exaggeration and there is no material inconsistency demonstrated by cross-examination.

41.  I have indicated above that Wong is not a reliable witness.  Whilst I accept that he probably was, as he said, nervous in the witness box, this cannot entirely explain the unsatisfactory nature of his evidence.  In particular, I cannot accept in the absence of good reason why he would have taken so little interest in the work carried out on the podium when it was a key aspect of his employer’s business.  I am driven to the view that he has been less than candid in order to try to distance LGW from the Accident. 

42.  Yiu’s evidence is of limited help because his evidence is that he spent little time at the Terminal (visiting it about once a month) and he painted the picture that he relied upon the manager, Mr Chung, to look after the business there.  However, I am unconvinced that Yiu has been entirely candid with the court because (a) it is surprising that he had so little involvement with the business at the Terminal and (b) my impression is that, like Wong, he tried to distance LGW from the Accident. 

43.  Yik’s evidence is of even less relevance because he was mainly responsible for registering the customers and it is not suggestion that he was involved in the supervision of the loading/unloading work.

LGW’s duty of care

44.  It cannot be disputed by LGW that the loading/unloading operation was dangerous because of the presence of forklift truck traffic.  Wong agreed that it was so.  In light of LGW’s involvement in the operation carried out at the Terminal, in particular (a) its ability to exercise some degree of control over the workers and (b) they were working for LGW (albeit indirectly), I have no difficulty coming to the view that there was a sufficient degree of proximity between LGW and Lam such that the former had a duty of care over the latter. 

45.  Further, I believe that the imposition of this duty of care is just and reasonable.  Although LGW endeavoured to subcontract much of the operation and the responsibility over the workers to Chan, as a matter of fact the day-to-day operation at the Terminal remained under the control of LGW to a large extent.  To my mind, there is not a huge difference between the relationship of (a) Chan and Lam and (b) LGW and Lam.  Lam’s wages no doubt came from LGW’s business (albeit indirectly) and he had to observe the instructions given to him by LGW’s staff.

46.  My view is arrived at having taken into account the recent CFA authority in this area of the law : Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14.

47.  The particulars of negligence relied upon by Lam are poorly drafted.  Most of them are devoid of particularity and do not fulfil their function.  Ms Tjia is only able to rely upon 2 allegations :

(i) Failing to control the traffic [at the Terminal] properly or at all;

(ii) Failing to take any or any reasonable measures to alienate the respective passageways for pedestrians and forklift trucks [at the Terminal].

48.  Dealing firstly with the 2^nd allegation, Ms Tjia suggests that a kind of time-out system might be employed for the loading/unloading operation such that at various stages the workers would be required to leave the loading/unloading area before allowing the trucks to be used.  That way, the workers and the trucks would be separated.

49.  However, the evidence is that the labourers were required to work hand in glove with the truck drivers.  With respect, I am not satisfied that the suggestion would be feasible or practical without crippling the efficiency of the operation.  There is certainly no reliable evidence in this regard[11].  Duty of care is underpinned by reasonableness.  It will not be reasonable to impose a duty which will stifle the very business which provided employment for the workers (see Clerk & Lindsell on Torts, rubric 8-145). 

50.  Further, I believe that the danger in question can be effectively mitigated by having the truck traffic properly controlled.  There is no evidence that there was a high level of accident caused by the collision between truck and labourer.  To put in place one or more traffic controller was clearly feasible and the cost of which would not be disproportionate. 

51.  This brings me to the 1^st allegation.  I have no doubt that LGW ought to have controlled the traffic at the loading/unloading area to make it safe for the workers like Lam.  Such duty had been breached because it is undisputed that there was no control over the traffic at the Terminal.

52.  Next I need to consider the issue of causation.

Causation

53.  Ms Wong characterises the unfortunate incident of the 5 February 2010 as a freak accident and submits forcefully that there is no causal link between the injuries suffered by Lam and LGW’s wrongful conduct.  I have been referred to the dicta of Lord Nicholls in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, para 37 :

“In the normal way, in order to recover damages for negligence, a plaintiff must prove that but for the defendant's wrongful conduct he would not have sustained the harm or loss in question. He must establish at least this degree of causal connection between his damage and the defendant's conduct before the defendant will be held responsible for the damage.”

54.  Issues of causation are to be considered by taking a common sense and pragmatic approach.  I have identified the wrongful conduct above as the failure to control the traffic at the loading/unloading area.  Is that failure an effective cause of Lam’s injuries?  See Clerk & Lindsell on Torts, rubrics 2-07 and 2-09.  

55.  Here the court is required to consider a hypothetical question regarding what a traffic controller would have done had he been present shortly before the Accident took place (see Clerk & Lindsell on Torts, rubric 2-12).  I am persuaded by Ms Tjia that the controller would not have allowed Ip to leave his truck unattended with an idling engine at very close proximity to Lam, especially when Lam was liable to be hurt by the elevated forks. 

56.  If LGW had fulfilled its duty by putting in place someone to control the traffic, it is more probable than not that the Accident would have been avoided.  In other words, LGW’s wrongful conduct did make a difference to the outcome. 

57.  In the premises, I am satisfied that LGW is liable to Lam for the loss and damage he has suffered due to the Accident.

58.  In light of my finding of liability based on the tort of negligence, it is unnecessary to deal with the cause of action based on common duty of care.  In any case, I am unable to see that the latter cause of action adds anything to Lam’s case.  If I am wrong on the finding of negligence, the cause of action in common duty of care cannot make any difference to the outcome of this trial.  Indeed, the same particulars are relied upon for both causes of action.

Conclusions

59.  By reason of the matters aforesaid, I give judgment on liability in favour of Lam against LGW.  I direct that the quantum of damages be assessed by a Master.  I make an order nisi that the costs of this trial be paid by LGW to Lam, to be taxed if not agreed.  Lam’s own costs are to be taxed in accordance with Legal Aid Regulations. 

60.  The Accident took place over 5 years ago.  As far as I am aware, Lam has not received any compensation for his injuries.  It is imperative for the assessment of damages to proceed as soon as practicable.

61.  Last but not least, I am grateful to both counsel for their assistance in these matters.