MA YUET PONG v. CHEN KAR WAI AND OTHERS

CACV 245/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 245 OF 2012

(ON APPEAL FROM HCPI 577/2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the Reasons for Judgment) :

1.  The plaintiff, who operated a business known as Hoi Luen Company, was a contractor engaged by Flextronics Logistics (HK) Limited (“Flextronics”) to carry goods to and from the premises of the 2^nd defendant located in a building at 8, Sze Shan Street, Yau Tong, Kowloon (“the Building”). The Building was owned and managed by the 3^rd defendant.

2.  On 29 August 2008, the plaintiff’s left foot and lower leg were injured when a forklift vehicle reversed into him as he waited at the raised platform outside Lift 1 of the Building.  The driver of the forklift vehicle, the 1^st defendant, was an employee of the 2^nd defendant employed in that capacity. He drove the forklift vehicle into Lift 1 and, having loaded up with a pallet of goods, reversed out of the lift onto the platform.  For his part, the plaintiff was waiting to use Lift 1 to deliver cartons of electronic goods on behalf of Flextronics to the 2^nd defendant’s premises on an upper floor of the Building.

3.  Two lifts, designated Lifts 1 and 2 respectively operated from that platform.  Both lifts were used to transport goods to and from the premises of the 2^nd defendant.  The lifts were located immediately next to one another.  An observer with his back to the boundary wall between the two lifts would have Lift 1 to his right side and Lift 2 to his left side.  There was no dispute that at the time of the accident three pallets of goods were located, awaiting delivery, on the platform immediately outside the boundary wall between the two lifts.  The pallets projected out at right angles for about 3 metres at a height of over 1 metre.  The raised platform extended outwards from the lift for about 8 metres.  The lower level floor located at the end of the platform was at a height such that allowed a truck to unload cargo at the same level as platform.  The plaintiff deposited the 3 or 4 cartons of electronic goods which he was delivering next to the end of the three pallets farthest away from the entrance to the lifts.  He piled them on top of one another, so that they reached the height of his chest.  They occupied a space about half the width of a pallet and left a vacant space, the width of the other half of a pallet on the side of the entrance to Lift 1.  The plaintiff occupied that space as he waited.  It was in that position that the collision occurred between the plaintiff and the rear of the forklift truck.

4.  On 11 February 2011, in default of defence, the plaintiff obtained interlocutory judgment against the 1^st defendant.

The Trial

5.  At issue in the trial before Deputy High Court Judge Lok, was the liability of the 2^nd and 3^rd defendants and an assessment of damages against the 1^st defendant.

6.  Oral evidence was received at the trial from the plaintiff, Mr Leung Yin Yue, a distribution centre manager on behalf of the 2^nd defendant, and Mr Ng Wai Ching, the manager, on behalf of the 3^rd defendant.

JUDGMENT

Liability

1^st and 2^nd defendants

7.  Having stated that he accepted the evidence of all three witnesses, the judge determined that the 1^st defendant had failed to keep a proper lookout for the presence of the plaintiff as he reversed the forklift vehicle and found that, in consequence, he was liable for the accident.  Given the undisputed evidence that the 1^st defendant was driving the forklift vehicle in the course of his employment with the 2^nd defendant, the judge found the 2^nd defendant vicariously liable for the negligence of the 1^st defendant.

3^rd defendant

8.  Noting that the accident was caused by an activity within the premises and not the physical state of the premises, the judge determined that the 3^rd defendant was not liable for breach of the common duty of care under the Occupiers Liability Ordinance, Cap. 314.

9.  It was common ground that the 3^rd defendant posted guards to control activities, interalia, in and around the vicinity of the lifts and, in particular, the scene of the accident.  The judge noted that warnings had been posted at the platform enjoining forklift vehicle drivers to drive slowly and that, in face of complaints about the speed at which a forklift vehicle was driven, prior to the accident, the 3^rd defendant had sent a letter to the 2^nd defendant asking that the drivers be warned to drive slowly and carefully.

10.  Then, the judge determined, first that the 3^rd defendant did not have power to prohibit the operation of the forklift vehicle at the platform.  Secondly, even if it was possessed of that power, given the fact that the vehicle was considered a safe method of conveying heavy goods, it was not to be expected that the 3^rd defendant would prohibit its use at that place.  Finally, the judge determined, given the nature of the activities conducted in the premises, it was impractical for the 3^rd defendant to separate and segregate pedestrians from the forklift vehicles in the use of the platform and the lifts.  In the result, the judge determined that the 3^rd defendant had not breached the duty of care owed to the plaintiff.

Contributory negligence

11.  The judge found that the place at which the plaintiff chose to stand as the forklift vehicle reversed was close to its path, so that there was always a chance that it would reverse to his side.  Noting that, although the plaintiff said that he had seen the forklift vehicle reversing, he accepted that there was a gap in his observation at the critical moment at which the vehicle came nearer to him, the judge determined that the plaintiff was culpable of contributory negligence.  He apportioned the plaintiff’s responsibility for the accident to be 20%.

QUANTUM

12.  The judge awarded $330,000 to the plaintiff for pain and suffering and loss of amenities.

Loss of pre-trial earnings

13.  The judge accepted the plaintiff’s evidence that his earnings in the period prior to the accident were $20,000 per month.  The claim for pre-trial full loss of earnings at that rate was from the time of the accident to 20 December 2009, at which date the plaintiff became employed as a security guard at $7,150 a month.  However, the judge determined that the plaintiff was entitled to full loss of earnings only up to February 2009.  He noted that was the date at which the 2^nd defendant terminated its contract with Flextronics.  He found that it was to be expected that, in turn, Flextronics would have terminated the sub-contract with Hoi Luen, the plaintiff’s business.  He determined that it was to be expected that the plaintiff would require three months before he was able to secure other employment.

14.  The judge noted that soon after the accident the plaintiff suffered from back pain, which was in no way linked causally to the accident itself.  In those circumstances, and having noted that the applicant was 52 years of age at the time of the accident, he found that the plaintiff would have been unable to continue working as a manual labourer for a long period.  In the result, he found that, given his determination that Flextronics would have ceased to have been a source of work for the plaintiff in February 2009, the applicant would have been forced into taking employment at no greater rate of reward than as a security guard.  Accordingly, he did not allow any claim for loss of earnings after 20 December 2009.  On that basis, he determined the pre-trial loss of earnings to be $169,000.

Loss of future earnings

15.  On the same reasoning he disallowed any claim for loss of future earnings.

Loss of earning capacity

16.  Noting that the applicant was 57 years of age and in stable employment as a security guard at the time of the trial and, having regard to the difficulties that the applicant’s back pain presented to his continuing work as a manual labourer, the judge determined that the plaintiff’s injuries would not put him at a disadvantage in his employment as a security guard and disallowed any claim for loss of earning capacity.

Other special damages

17.  The judge awarded the plaintiff $10,000 as other special damages.

18.  In the result the judge assessed the quantum of damages to be awarded to the plaintiff as :

(i) PLSA	$330,000
(ii) pre-trial loss of earnings	$169,000
(iii) other special damages	$10,000
	$509,000
Less 20% contributory negligence	$101,800
TOTAL	$407,200

Plaintiff’s Notice of Appeal

19.  By the plaintiff’s notice of appeal issue was taken with the judge’s determination of 20% contributory negligence by the plaintiff in the accident, the quantum of damages awarded by the judge in respect of pre-trial loss of earnings and his determination not to award the plaintiff any award in respect of post-trial loss of earnings.  Further it was contended that the judge erred in determining that the 3^rd defendant was not in breach of the duty of care owed to the plaintiff.

20.  The plaintiff sought an order for damages in the sum of $1,333,410 against the 1^st and 2^nd defendants and/or the 3^rd defendant, comprised of :

(i) PLSA	$400,000
(ii) Pre-trial loss of earnings	$632,410
(iii) Post-trial for loss of earnings	$291,000
(iv) Special Damages	$10,000

Contributory negligence

21.  First, it was submitted by Mr Y L Cheung that the judge erred in finding 20% contributory negligence in the plaintiff in respect of the cause of the accident.  The judge ought to have found that the place at which the plaintiff was standing was a reasonably safe position, so that he could not have reasonably foreseen that in reversing the forklift vehicle the 1^st defendant would have manoeuvred the forklift vehicle to the right and towards the plaintiff, after having reversed out of the lift and some way onto the platform.

Loss of earnings

22.  Then, Mr Y L Cheung submitted that the judge erred in accepting the oral testimony of Mr Leung Yin Yue, called on behalf of the 2^nd defendant, that the contract between the 2^nd defendant and Flextronics was terminated in February 2009 and in determining, in consequence, that the sub-contract for the plaintiff to act as a carrier of Flextronics’s goods would have been terminated at the same time.  That evidence was not reflected in the pleadings of the 2^nd defendant, the statement of its witness or in any documentary evidence.  The finding in respect of the expected termination of the contract between the plaintiff and Flextronics was speculative.  In consequence, it was submitted that the judge erred in disallowing the plaintiff’s claim in respect of pre-trial loss of earnings after February 2009.

Breach of duty of care owed by the 3^rd defendant

23.  Next, it was contended that the judge erred in determining that, although the 3^rd defendant owed a duty of care to the plaintiff, it was not in breach of that duty of care because there were no practicable preventative measures that the 3^rd defendant could have imposed to separate pedestrians from forklift vehicles.

DISCUSSION

Contributory negligence

24.  It is clear from the plaintiff’s evidence that he had positioned himself as he did outside Lift 1 in order to gain access to the lift as soon as possible, once the forklift vehicle driver had performed his task.  He anticipated, correctly, that the forklift vehicle driver would reverse out of the lift having loaded up a pallet inside the lift.  However, he anticipated, wrongly that then the forklift would be reversed to the left.  In fact, it was reversed to the right. Clearly, in the anticipation that the forklift  vehicle would be reversed out of the lift before being turned by its driver he could have chosen to stand in a much safer place, such as next to the pallets or even his own cartons but on the side of Lift 2 rather than Lift 1.  As the plaintiff testified, in the place at which he had chosen to stand he was unable to escape the path of the oncoming forklift vehicle because his escape route was blocked by his own cartons.

25.  Having chosen to stand in a position close to the path in which the forklift vehicle would be reversed it was all the more important that the plaintiff keep a sharp eye on the path of the forklift as it was reversed.  Although he observed it reversing straight out of the lift, it is clear that he did not see its unanticipated turn to the right until it was too late to avoid being run over.  The judge’s finding that the plaintiff had failed to keep a proper lookout was supported by the plaintiff’s admission to that effect in evidence:

“ Before it hit me, I did pay attention to it, but when it arrived maybe perhaps I got distracted or something else…”

26.  In the result, we were satisfied that the judge was correct in determining that the plaintiff was culpable of contributory negligence and to apportion his responsibility for the accident at 20%.

The liability of the 3^rd defendant

27.  The judge having determined that the 3^rd defendant, as owner of the Building and responsible for its management, owed a common law duty of care to the plaintiff and, given that the 3^rd defendant had received complaints about the operation of the forklift vehicle, so that it had displayed a warning notice at the platform and issued a warning letter to the 2^nd defendant, the remaining issue was the judge’s determination that the defendant was not in breach of that duty.

28.  Having regard to the evidence, the judge expressed doubt as to whether or not the 3^rd defendant had power to prohibit the use by tenants of forklift vehicles in the premises or to segregate pedestrians from the areas where such vehicles were used.  Although the Tenancy Agreement, in respect of the 2^nd floor of the Building, between the 3^rd defendant and South Peninsula International Logistics Management Limited and the Agreement for the Assignment of the Tenancy to the 2^nd defendant were put in evidence, the Deed of Mutual Covenant was not in evidence.  Nevertheless, the judge proceeded to consider whether or not in failing to take either step the 3^rd defendant was in breach of its duty of care to the plaintiff.

29.  Clearly, the judge was correct in determining that forklift truck vehicles are a safe way of transporting cargo.  Other means of transporting cargo were also employed, namely hydraulic and manual trolleys.  No doubt, the volume and weight of the cargo would determine which method was most efficient.  Given the undisputed evidence that the 2^nd defendant operated a logistics business, in which cargo was moved on a regular basis in and out of its premises on the 2^nd floor of the Building, and that other but less active tenants of the Building also required to move cargo in and out their premises in the Building it was reasonable for the 3^rd defendant to permit their use on the platform area outside Lifts 1 and 2.

30.  The fact that the Building was a warehouse and not an industrial building was obviously relevant to the issue of whether or not it was feasible and practicable to segregate passengers from those engaged in moving cargo by the use of a forklift vehicle in and out of the Building.  No issue was taken with the evidence of Mr Ng Wai Ching, who testified on behalf of the 3^rd defendant, that the loading and unloading of cargo at the platform area was frequent.  Clearly, most persons using that area did so in the course of delivering to or removing cargo from the premises.  It was in that context that the judge determined that it would not have been reasonable to have prohibited the 2^nd defendant from using a forklift vehicle in the movement of cargo and “impracticable” for the 3^rd defendant to segregate people from the activities of the forklift vehicles.  As the judge noted, the plaintiff himself was on the platform in the course of delivering cargo to the 2^nd defendant.

31.  We were satisfied that it cannot be said that the judge was plainly wrong in making those findings and determining that the 3^rd defendant was not in breach of its duty of care to the plaintiff.

Loss of earnings

32.  Crucial to the judge’s determination that the plaintiff was entitled to damages for loss of earnings only up to February 2009 at the rate of $20,000 per month, his monthly income at the time of the accident, was his finding that the termination of the contract between the 2^nd defendant and Flextronics in February 2009 would have resulted in a termination by Flextronics of the sub-contract they enjoyed with the plaintiff’s business, Hoi Luen, at the same time.

33.  There is no dispute that the fact that the contract between the 2^nd defendant and Flextronics was terminated in February 2009 was not addressed in the pleadings or the witness statements.  The judge disallowed cross-examination of the plaintiff on that issue by the 2^nd defendant’s representative.  However, in cross-examination of Mr Leung Yin Yue, called in the case of the 2^nd defendant, counsel for the plaintiff elicited evidence that the 2^nd defendant’s contract with Flextronics had ended in February 2009.  Accordingly, that matter was in evidence and the judge was entitled to rely upon it in his consideration of the issue of the period in which, apart from having sustained the injuries in the accident, the plaintiff would otherwise have been able to enjoy a monthly income of $20,000.

34.  Of the circumstances in which the contract between the 2^nd defendant and Flextronics had been terminated, the judge noted that Mr Leung Yin Yue had testified that there had been a general decline in the logistics business in 2008.  Of course, in context, that followed the financial crisis in the autumn of 2008.  Of relevance to that evidence, was the plaintiff’s testimony that, having begun working as a sub-contractor for Flextronics in 2007, at time of the accident he worked only for them and no one else.

35.  As the judge noted, prior to the plaintiff’s contract with Flextronics his monthly income as an ordinary transportation worker was $8,000.  Clearly, it was his contract with Flextronics that had resulted in the very substantial increase in his monthly income to $20,000.

36.  We were satisfied that the judge was correct to determine that the plaintiff’s ability to earn $20,000 a month would have come to an end when his contract with Flextronics was terminated and that the judge was entitled to conclude that would have occurred at the same time as the 2^nd defendant terminated its contract with Flextronics in February 2009.

37.  There was no dispute that the plaintiff’s job at the time of the accident was very demanding physically and required that the plaintiff be in a good physical condition.  Noting that the plaintiff testified that he had begun to suffer from back pain shortly after the accident, there being no issue that the back pain was unconnected to the accident, the judge was entitled to determine that the plaintiff would not have been able to continue that employment for long.  The judge was correct to note that the plaintiff agreed in his testimony that was the case.

38.  We were satisfied that the judge was entitled to find that, in all those circumstances, such employment as the plaintiff might have obtained in the period after he was physically unable to continue with the physical demands of a delivery worker would have been at a wage no greater than that enjoyed by a security guard, which employment he took up in December 2009.  The judge afforded the plaintiff loss of earnings for the period June to December 2009, having determined that following his anticipated loss of employment with Flextronics in February 2009 he would have taken three months to secure other employment.  We were satisfied that the judge was entitled to approach the issue on that basis.

Conclusion

39.  In the result, we were satisfied that there were no merits in the grounds of appeal, which appeal was dismissed.  In those circumstances, we ordered that the plaintiff pay the costs of the 2^nd and 3^rd defendants, but refused the application of the 3^rd defendant for a certificate for two counsel.