LO HO YIN v. PHOENIX SATELLITE TELEVISION CO LTD

DCPI 2474/2018

[2020] HKDC 615

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2474 OF 2018

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J U D G M E N T

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Introduction

1.  Mr Lo brought this action to claim damages for the eye injuries that he sustained in the course of his employment with his former employer, Phoenix Satellite Television Company Limited (“the TV Company”) on 5 May 2017. He alleges an accident in which the heel of his former colleague, namely, Mr To hit his right eye when both of them were climbing up a ladder inside a vessel (“the Accident”).

2.  The TV Company disputes both liability and quantum of damages claimed by Mr Lo.  As a fallback position, it contends that Mr Lo was contributorily negligent in causing the eye injuries to himself.

3.  The TV Company has already paid Mr Lo an amount of HK$90,873.92 (“the EC Amount”) by way of settlement of his claim pursuant to the Employees Compensation Ordinance, Cap 282.

4.  The key issues in these proceedings are whether or not and, if so, how Mr Lo’s right eye was injured as a result of the Accident.  Further, I shall determine whether the TV Company (or Mr Lo) was negligent in causing the Accident and to what extent the Accident was caused by the negligence of Mr Lo.  Lastly, this court has to compute the quantum of damages.

Background facts

5.  I shall first outline the uncontroversial factual background leading to the Accident.

6.  Mr Lo was a bespectacled man aged 33 at the time of the Accident.  He had a degree in journalism and started working for the TV Company as a reporter in March 2017.  On the other hand, Mr To is an experienced cameraman employed by the TV Company.

7.  On the day before the Accident, Mr Lo and Mr To were instructed by their superior to cover an event on the following day.  The event concerned the drilling work relating to the Third Runway conducted on a barge (“the Barge”) in Hong Kong waters (“the Event”).  The Hong Kong Airport Authority invited the media to cover the Event. It arranged a double deck vessel (“the Vessel”) to bring the invitees (reporters and their crews) closer to the Barge so that they could take photographs and videos of the Event.

8.  There was a ladder on the lower deck of the Vessel leading to the upper deck (“the Ladder”).  The media people had to climb up the Ladder to reach the upper deck to have an open view of the Barge.  The Ladder was narrow and each of its steps only accommodated one single person.  At the time of the Accident, Mr To was climbing up the Ladder and Mr Lo was behind him. 

Parties’ respective pleaded cases and evidence of the Accident

9.  Now I first turn to the Mr Lo’s allegations about the Accident.  In his pleaded case, Mr Lo says no more than that he was following behind Mr To when they were going up the Ladder, Mr To’s right heel hit him in his right eye thereby causing bodily injuries to his right eyes.

10.  Mr Lo goes on to allege, among other things, negligence on the part of the TV Company, its servants and agents without naming Mr To.  The particulars of negligence of the TV Company supplied thereunder makes no express reference to Mr To.

11.  In Mr Lo’s witness statement, the contents of which were adopted as part of his evidence, there is a short paragraph giving an account of the Accident.  He alleges that Mr To had to carry all the photography and recording equipment to climb up the Ladder and so he let Mr To go first.  When he was carefully climbing up the Ladder, without giving him any notice, Mr To kicked him in his face with his right heel.  His spectacles were deformed and his right eye was hurt.  Tears came out and he could hardly open his right eye.  He does not allege any negligence on the part of Mr To though.

12.  Under cross-examination, Mr Lo added some details about the Accident.  He said the Ladder was erected perpendicularly on the lower deck and there were handrails on both sides.  Mr To was holding heavy equipment in his hands.  He decided to stay closer to Mr To to assist him in the event that he dropped any of the equipment.  When he was on the Ladder, he saw the right heel of Mr To slip out of the step of the Ladder and hit his right eye.

13.  The TV Company does not admit the pleaded account of the Accident in the Defence.  In his evidence, Mr To says that during the entire process of his climbing up the Ladder, he did not notice anything unusual.  It was only until both of them reached the upper deck that he noticed that Mr Lo might have some problems with his right eye because of his frequent blinks.  He then asked Mr Lo what had happened to his right eye.  Mr Lo told Mr To that his right heel hit his right eye when they were climbing up the Ladder. Mr To was not aware of that at all.

14.  Mr To then asked Mr Lo whether he required medical treatment in hospital.  Mr Lo answered in the negative and said that he could continue the reporting job.  Therefore, they proceeded to shoot a short clip with the Barge in the background.

15.  About an hour later, when they left the Vessel, Mr To saw tears coming out from Mr Lo’s right eye.  He asked Mr Lo again whether he required treatment in hospital.  Mr Lo answered affirmatively and so Mr To drove him to North Lantau Hospital before returning to the office of the TV Company.  

16.  Under cross-examination, Mr To explained that the coverage was supposed to be a simple task and one cameraman and one reporter were sufficient for that purpose.  He opted to bring a small recorder only.  When he was climbing up the Ladder, he carried the recorder with a strap over his left shoulder and had his rucksack on his back containing all other equipment such as a backup battery and three microphones.  They were not heavy and the rucksack weighted about 3 to 4 kg.  He left his tripod with Mr Lo and when he was climbing up the Ladder he held on to the handrails of the Ladder on both sides.  The Ladder was very steep but it did not exactly stand perpendicularly on the lower deck.  It was standing at an about 70 degree to the lower deck.  The sea was not rough and the Vessel was not unstable. He did not lose his balance or miss any step at all.

17.  Mr To insisted that there was nothing untoward when he climbed up the Ladder to the upper deck.  He further maintained that he did not notice any deformation of the spectacles of Mr Lo throughout.

Analysis of evidence relating to liability

18.  There were only two live witnesses.  Both Mr Lo and Mr To testified.  Mr Lau who is the human resource staff of the TV Company made a witness statement. Mr Lo accepts the content of his witness statement and the same is admitted as evidence and so his viva voce evidence was dispensed with. 

19.  On the occurrence of the Accident, it is a matter of Mr Lo’s words against Mr To’s basically.  Mr Lo struck me as an intelligent person.  He sounded reasonable most of the time but was prone to exaggeration and even fabrication on importance issues, as explained below.  I shall deal with his evidence with circumspection.

20.  On the other hand, Mr To appeared to me to be an honest and straightforward witness.  He testified with confidence and his answers were spontaneous.  I find him to be a reliable witness and I prefer his evidence to Mr Lo’s evidence wherever they are in conflict.

21.  Here are my factual findings on the essential issues.  First and foremost, I accept Mr To’s evidence that he completed climbing up the Ladder in an ordinary manner without any loss of his balance.  I accept his evidence as to what he was carrying when he was on the Ladder.  Despite all of his belongings saddling him, which could not be said to be heavy to a man of his build (170 pounds, 5’8”), he did not have any difficulty in climbing up the Ladder.  The Ladder was no doubt very steep.  It could be 70 degree as observed by him or 90 degree as contended by Mr Lo.  It could even be something in between.  I do not accept the submission of Mr Pak, for Mr Lo, that Mr To deliberately denies the verticalness of the Ladder.  I do not accept his submission too that it was inherently improbable that Mr To could kick Mr Lo’s head with his heel unless the Ladder was erected at a right angle.  It all depends on how close Mr Lo was behind Mr To on the Ladder.  I see no reason why Mr To lied about the exact steepness of the Ladder.

22.  Mr Lo wanted to paint the picture that Mr To lost his balance on the Ladder somehow and so his right foot missed a step and kicked backward.  When asked why he mentioned this only for the first time under cross-examination, he explained that it was only his subjective interpretation of the movement of Mr To and, thus, he did not say so in his pleadings and witness statement.  Quick-minded as he is, he fails to convince me by this explanation.  If Mr To had really lost his balance and missed a step on the Ladder, no doubt it was a piece of cogent evidence of his negligence and the main cause of the Accident.  Mr Lo could not have omitted this important matter in his pleaded case and his witness statement.  He did not even mention it in his evidence in chief.  His evidence in this respect must be rejected.

23.  I accept that Mr To’s right heel came into contact with Mr Lo’s right eye.  Mr Lo’s corneal injury is evidenced by undisputed medical evidence.  In my judgment, the impact could not be violent.  There was no evidence that his spectacles had ever fallen off from his face and the distortion of his spectacles was, if any, minimal.  It was recorded in the unchallenged medical report issued by the A & E Department of North Lantau Hospital dated 6 December 2017 (“the NLH Report”) that his spectacles were intact.  Further, the NLH Report showed that there was no surrounding swelling, wounds or tenderness around his right eye.  Of course, I understand that human eyeballs are very delicate and fragile and even a slight contact may cause injuries.

24.  I accept Mr To’s evidence that he was not aware of the Accident at all. The physical contact could only be slight in my view.  I cannot accept Mr Pak’s submission that the fact that Mr To asked whether Mr Lo was alright when he saw his frequent blinks can lead to the conclusion that he actually knew he might have injured Mr Lo in the course of climbing up the Ladder. Mr To’s concern about Mr Lo’s eye condition was only reasonable, particularly when he was going to shoot a clip featuring him soon.  

25.  I have considered all other criticisms of Mr To’s credibility made by Mr Pak.  They fail to cause me any concern nonetheless.

26.  In the absence of any usual movement of Mr To on the Ladder, I can conclude that on a balance of probabilities, the cause of the Accident was that Mr Lo’s head was getting too close to Mr To’s right foot when climbing up the Ladder.  Mr Lo should have kept a safe distance from Mr To.

27.  In light of these factual findings, I proceed to consider the liability of the TV Company.  Mr Pak in his opening submission submits that the case of Mr Lo is two-fold.  First, the TV Company was in breach of its primary liability as an employer and further it is vicarious liable for the negligence of Mr To.

28.  Mr Pak complains that the TV Company failed to ensure the reasonable safety of Mr Lo as its employee in that there was neither a safe system of work nor any specific instructions or warnings given to Mr Lo as to how to work on a vessel in the sea.  He further complains that the TV Company should have provided sufficient manpower to cover the Event so as to share the burden of Mr To’s carrying the equipment when climbing up the Ladder.  He contends that if Mr To had had a helping hand, he would not have lost his balance and kicked Mr Lo’s eye. 

29.  I cannot agree that there is any primary liability on the part of the TV Company.  Both Mr Lo and Mr To were adults and they have real life experience in climbing up a ladder.  They knew as a matter of common sense that on a vessel they had to be particularly careful in keeping their balance.  When climbing up a ladder on a vessel, they knew that they had to hold on to the handrails.  Mr Lo accepted that he knew that he should keep a safe distance from Mr To on the Ladder even in the absence of any warning or instruction.  

30.  In Lam Ka Lok Louis v Swire Properties Management Ltd, unreported, HCPI 914/2003, 30 April 2005, cited by DHCJ Paul Lam SC in Lee Yam Kan v Ng Pui Kuen and Anor., unreported, HCPI 196/2014, 15 March 2016 at §45, Suffiad J had this to say,

“The law does not require an employer to treat its workers, in the carrying out of their everyday normal jobs which do not entail any special risk or danger by the workers, as though they were kindergarten pupils who if not told, would not be aware of the kind of common everyday risks that a reasonable person should be aware of.”

31.  Indeed, I do not think the TV Company was obliged to give Mr To and Mr Lo any specific instructions or warning about the importance of and how to keep a safe distance from each other on the Ladder.  It is remarkable that Mr Lo accepted that he was in a position to keep clear from Mr To and the Accident could have been avoided if he had done so.  I do not accept his explanation that he had to keep close to Mr To to watch out for any equipment accidentally dropped by him or to give him support when he was about to lose his balance on the Ladder due to the weight of the equipment carried by him.

32.  I fail to see how the TV Company failed to provide Mr Lo with a safe system of work.  I find the following dictum of Kwan JA in Fong Yuet Ha v Success Employment Services Limited, unreported, CACV 100/2012, 28 December 2012 at §19 to be apposite:-

“As the passage quoted has made clear, it is a question of fact in each case whether it is necessary for the employer to devise a system of work for the task in hand. The judge decided that in the circumstances of this case, the need for a system of work to be prescribed was not made out. In paragraph 38 of the judgment quoted above, the judge referred to Winter v Cardiff Rural District Council and some of the cases in Hong Kong that applied this case. They were all situations where the court held on the facts that the operation was simple and it was reasonable that the employee could be trusted to exercise his common sense to carry out the operation without the need for the employer to prescribe a system of work or give specific instruction or advice how the task should be done.”

33.  Kwan JA went on to conclude as follows (at §21):-

“The judge was correct in holding that in the circumstances of this case, there was no need for the employer to prescribe a safe system of work or give specific advice for such an everyday act that could reasonably be trusted to the common sense of the employee to carry out the task safely. The retrieval of items on the upper shelf was simply not an inherently dangerous act, as contended by Mr Wong.”

34.  I do not accept that climbing up the Ladder to the upper deck of the Vessel to cover the Event was an inherently dangerous task.  Mr Lo accepted that it was not the case that the Barge would disappear any time soon.  He was not under any time constraint to reach the upper deck.  Mr Lo said that he was not rushed by anyone behind him.  In the circumstances, both Mr To and Mr Lo could take their time to climb up the Ladder.  With his common sense, Mr Lo should be able to avoid coming into contact with Mr To or indeed anyone preceding him on the Ladder.

35.  In the premises, I conclude that the TV Company did not negligently fail to provide a safe system of work to Mr Lo and Mr To.

36.  As to the complaint about manpower shortage, I accept the evidence of Mr To that two of them were sufficient for the coverage of the Event.  It was not a complicated task involving different locations and quick movements.  Mr Lo merely exaggerated the weight of the equipment that Mr To had to carry with him.

37.  Now I come to the allegation of vicarious liability. Mr Cao, for the TV Company, is right in pointing out that the phrase “vicarious liability” does not appear in the pleaded case of Mr Lo.  I agree that it should be proper to make an express plea of vicarious liability: see Atkin’s Court Forms (2^nd Edition, 38(1) 2015 Issue) p.169.  However, there is an assertion that the Accident was caused by the negligence of the TV Company, its servants and/or agents in the Statement of Claim.  Mr Lo should be included in this allegation.

38.  Mr Pak accepts that the particulars of negligence only refer to the TV Company but he urges this court to accept that they are equally applicable to Mr To. Clearly, the great majority of such particulars cannot be referrable to an employee of the TV Company.  Mr Pak only singles out that the first particular for Mr To and it is the failure to ensure good care as being taken at all times.

39.  There is no formal application to amend the pleading with proposed amendments.  Even if I were to allow Mr Lo to rely on the said allegation, it cannot be borne out by the evidence.

40.  Mr Pak agrees that the mere fact that the heel of Mr To came into contact with Mr Lo’s head on the Ladder does not necessarily mean that Mr To was negligent.  I have already rejected the allegation that Mr To lost his balance or missed a step causing his right heel to hit the head of Mr Lo.  Given the steepness of the Ladder and the fact that it was in the sea, it is reasonable to expect Mr To to pay full attention to the steps in front of him to ensure his own safety.  Mr To should not be reasonably required to look back to ensure that no one was standing too close to him.  Common sense dictates that the one behind him had to keep a safe distance from him.  I can find no negligence on the part of Mr To at all.

41.  I, therefore, come to the conclusion that the TV Company is not liable. Neither the primary liability nor the vicarious liability can be established.  On the factual findings made above, none of the other pleas of Mr Lo including the alleged breaches of statutory duties is made out.

42.  The TV Company’s plea of contributory negligence is well supported by the evidence.  I am satisfied that Mr Lo was negligent in his failure to pay proper attention to his safety by keeping a safe distance from Mr To. His own carelessness and no one else’s caused the Accident.

Quantum

43.  In case that I were wrong in respect of the liability issue, I shall assess the quantum nevertheless.  In this exercise, I would hold that Mr Lo was 90% contributorily negligent as submitted by Mr Cao.

44.  I shall first outline the medical history of Mr Lo relating to his eye injuries, which was summarized in the joint ophthalmological report of Dr Cheung instructed by Mr Lo and Dr Liang instructed by the TV Company dated 20 August 2019 (“the Joint Report”).  The two ophthalmology specialists examined Mr Lo on 17 January 2019.

45.  As mentioned above, in the same afternoon of the Accident, Mr Lo was sent to North Lantau Hospital.  According to the NLH Report, Mr Lo suffered from corneal abrasion in his right eye and he was eventually referred to Department of Ophthalmology of Caritas Medical Centre (“CMC”) for assessment and treatment on the same day.

46.  Mr Lo saw Dr Lam, who is in private practice and was recommended by the TV Company, on 6 May 2017.  Dr Lam made a medical report dated 15 December 2018 (“Dr Lam’s Report”).  In the medical report, it is stated that examination on 6 May 2017 showed a large corneal abrasion of the right cornea measuring about 40% of the corneal surface.  He was given an eye pad for 24 hours and to use antibiotics eye drops and ointment afterwards.

47.  According to Dr Lam’s Report, Mr Lo was reviewed on 10 May 2018 and he found that the corneal abrasion had healed but the corneal surface had not completely returned to normal with slight corneal haziness.  Ocular pressures were normal.

48.  According to the medical report dated 31 December 2018 by Dr Cheung and Dr Ngai of CMC, the eye condition of Mr Lo was reviewed on 15 May 2017 and it was found that the corneal abrasion was healed and the cornea was clear.

49.  On 27 May 2017, Dr Lam saw Mr Lo again and found no corneal pathologies.  Both his cornea and the right eye were normal.  Dr Lam at the same time made a presumptive diagnosis of post-traumatic recurrent corneal erosion (“RCE”) and advised Mr Lo to apply eye lubricants.

50.  Mr Lo returned to Dr Lam’s clinic twice in July and August 2017 for the prescriptions of lubricating eye drops and ointment and no further appointment was arranged thereafter.

51.  Lastly, Mr Lo consulted Dr Su in private practice on several occasions for his complaints of on and off visual blurriness and discharge with mild photophobia but later stabilized to right eye discomfort and easy dryness. He was prescribed artificial eye drops.

Pain, Suffering and Loss of Amenities (“PSLA”)

52.  According to the medical evidence, Mr Lo’s injury was rather minor and the corneal abrasion healed up within 10 days.  No surgery and hospitalisation was required.  I am unable to accept that Mr Lo suffers from RCE.  The two experts in the Joint Report made no finding of RCE.  Dr Lam’s suggestion of RCE was only based on the symptoms alleged by Mr Lo.  Such symptoms were not supported by any medical evidence and I am not convinced of their existence.

53.  I can accept that the injury caused Mr Lo considerable discomfort during that period though, particularly on the day of the Accident.

54.  I have considered Nam Cheuk Yin v Ng Yim Hing, unreported, DCPI 357/2011, 11 April 2003 and Hussain Tanweer v Focus Roller Shutter Limited (in Liquidation), unreported, DCPI2537/2007, 23 February 2009 cited by Mr Cao and Lau Ho Ming v Wong Pak Ho, unreported, HCPI 254/2009, 17 September 2010, Chan Yim v Shing Cheong Construction Limited, unreported, HCPI 54/2006, 18 June 2007, and Chow Wai Hung v King Rise Engineering Ltd and Anor., unreported, CACV 213/2005, 14 October 2005 cited by Mr Pak. 

55.  The authorities cited by Mr Pak concerned far more serious eye injuries (and even some other injuries) which were more permanent in nature.  They are not helpful.

56.  I believe Mr Lo’s eye injury was more akin to the plaintiff’s in the Nam Cheuk Yin case.  With the upward adjustment taking into account its slightly more serious nature and inflation over the years, I would assess the PSLA award at HK$15,000.

Pre-trial Loss of Earnings and MPF

57.  In the Joint Report, the two experts agree that 11 days’ sick leave granted by CMC and Dr Lam from 5 to 15 May 2017 was appropriate.  I am not convinced by the sick leave certificates issued by other institutions.  It is common ground that Mr Lo had been in gainful employment during such periods.

58.  There is no debate about the monthly income of Mr Lo in the amount of HK$21,666.66 at the time of the Accident. 

59.  I accept Mr Cao’s computation of damages under this head as follows: HK$21,666.66 x 11/30 x 1.05 = $8,342

Loss of Earning Capacity

60.  There is nothing in the Joint Report that leads me to believe that Mr Lo has any permanent disability and will suffer any disadvantage in the labour market.  In fact, Mr Lo is now assuming a higher and more responsible position in the journalism career.

61.  I refuse to allow any award under this head as a result.

Special damages

62.  I am prepared to allow HK$8,000 for his medical expenses in the absence of a full set of receipts and HK$1,000 for travel expenses.  There is no reason why Mr Lo could not take public transport with his minor eye injury.  I shall not allow any tonic food expenses in the absence of any evidence of what tonic food Mr Lo had consumed, how much such tonic food cost and how such tonic food possibly helped his recovery.  Hence, Mr Lo should be entitled to an award of HK$9,000 as special damages.

Future medical expense

63.  Both Dr Cheung and Dr Liang concluded that no objective symptoms of Mr Lo’s alleged RCE has ever been detected.  I am not convinced that Mr Lo suffers from RCE and requires any future medical treatments. I refuse to allow any award under this head.

Summary on quantum

64.  Below is a summary of the awards I allow:-

PSLA	HK$15,000
Pre-trial loss of earnings (MPF inclusive)	HK$8,342
Special damages	HK$9,000
	HK$32,342
Less:
90% contributory negligence	HK$29,107.8
EC Amount	HK$90,873.92
	(-HK$87,639.70)

Conclusion and disposition

65.  For the reasons given, I conclude that the TV Company is not liable to Mr Lo for his eye injuries sustained in the Accident.  The claim of Mr Lo must be dismissed.

66.  Costs should follow the event.  I make an order nisi that Mr Lo should pay the TV Company’s costs of this action including any costs previously reserved with certificate for counsel, to be taxed if not agreed.

67.  Lastly, I thank Mr Pak and Mr Cao for their assistance rendered to this court.