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DCPI 3632/2020
[2024] HKDC 420
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
PERSONAL INJURIES ACTION NO 3632 OF 2020
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| BETWEEN |
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SIT KAN TAT |
Plaintiff |
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and
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WORLD-CLASS TALENT LIMITED |
1st Defendant |
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SINOTRANS (HK) WAREHOUSING |
2nd Defendant |
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LIMITED |
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| Before: |
Deputy District Judge Gary C C Lam in Court |
| Dates of Hearing: |
4, 5 and 11 March 2024 |
| Date of Judgment: |
18 March 2024 |
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JUDGMENT
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I. INTRODUCTION
1. This is a trial on liability and quantum in relation to the injuries suffered by the plaintiff in an accident (the “Accident”) on 10 April 2018 at around 12:45 pm. At the time of the Accident, the plaintiff was under the employment of the 1st defendant (a logistics outsourcing company) working as a forklift driver at a warehouse at Lot 1638, DD 104, Chuk Yau Road, Yuen Long (the “Warehouse”) managed by the 2nd defendant, elevated about 1.5m – 1.7m above the ground.
II. PLAINTIFF’S CLAIM
2. According to the plaintiff, on 10 April 2018 at around 12:45 pm, having moved some parcels inside the Warehouse on an urgent basis upon a supervisor’s instructions, the plaintiff would like to wash his hands and have lunch. Thus, he would like to egress from the Warehouse to a toilet nearby. He was to egress at the back entrance of the Warehouse. Although the Warehouse was elevated about 1.5m – 1.7m above the ground, there was no ramp or staircase at the back entrance. Instead, a wooden pallet (the “Wooden Pallet”) was tilted (not fixed) diagonally on the ledge of the back of the Warehouse. When the plaintiff walked on the Wooden Pallet, he slipped and fell onto the ground, and suffered injuries.
3. The plaintiff claims against the 1st defendant as employer and the 2nd defendant as occupier on negligence, implied terms of contract, vicarious liability and occupier’s liability for the following four failures and one exposure particularised in paragraph 6 and 7 of the statement of claim :-
(1) Failure to take all reasonable steps and precautions to ensure the plaintiff’s safety in carrying out his duties or egressing from the back entrance of the Warehouse;
(2) Failure to give any, or any sufficient warning to the plaintiff regarding the risk of injury associated with egressing from the back entrance of the Warehouse;
(3) Failure to provide and maintain any proper and/or suitable means of egress when the plaintiff egressed from the back entrance of the Warehouse;
(4) Failure to provide any, or any reasonable supervision and/or instructions to ensure that the plaintiff would egress from the back entrance of the Warehouse in a reasonable safe manner; and
(5) Exposure of the plaintiff to unnecessary risk of injury of which the 1st and/or the 2nd defendant knew or ought to have known.
4. The plaintiff further says in its reply to the 2nd defendant’s defence that the 2nd defendant allows workers and visitors to, and they did, use the Wooden Pallet for access to and egress from the Warehouse, consistent with what other workers informed the plaintiff that he could do so.
III. THE 1ST DEFENDANT’S DEFENCE
5. The 1st defendant’s counsel, Mr Francis Chung, does not dispute that as the plaintiff’s employer, the 1st defendant had a non-delegable duty to provide a safe place of work for its employee: see Chung Yuen Yee v Sam Woo Bore Pile Foundation Ltd And Others, HCPI 1053/2006, 5 August 2010 at §42. It, however, puts the plaintiff to strict proof of the Accident. It further raises contributory negligence by the plaintiff, particularised in paragraph 6 of its Defence that :-
“(a) using the back entrance to egress from the Warehouse when he was forbidden to do so;
(b) using a wooden pallet as a means of egress when it was unsafe and/or dangerous to do so;
(c) assuming an unreasonable risk of injury by using a wooden pallet to egress from the back of the Warehouse when it was unsafe and forbidden to do so;
(d) ignoring the warning(s) both written and oral given by the 2nd defendant not to egress from the back of the Warehouse therefore exposing himself to unnecessary risk of injury;
(e) failing in the circumstances to have any or any sufficient regard for his own safety.”
6. The warnings mentioned were :-
(1) The 2nd defendant’s 入園作業安全須知 (the “Safety Guidelines”) provided by the 2nd defendant to the 1st defendant, the requirement 6 of which provides that “相關方應注意並遵守速度限制和限制進入標誌”;
(2) The safety warning and notice (the “Safety Warning”) posted by the 2nd defendant at the right side of the back entrance stated :-
“嚴禁在此上落 [bold, underlined and in red]
請使用正確通道進出 [bold, underlined and in blue]
如犯紀律處分 [bold, underlined and in blue]”
IV. THE 2ND DEFENDANT’S DEFENCE AND CLAIM AGAINST THE 1ST DEFENDANT
7. The 2nd defendant’s defence is similar, putting the plaintiff to strict proof of the Accident and raising contributory negligence. What is more for the 2nd defendant is its claim by way of contribution and indemnity notice (the “contribution notice”) against the 1st defendant.
8. The 2nd defendant pleads that the 1st defendant was negligent and/or in breach its employer’s duty and statutory duty of care owed to the plaintiff. The particulars are, in summary, its failure to provide safety training and warning as well as sufficient instructions and directions to the plaintiff and permitting the plaintiff to use the Wooden Pallet for egress from the Warehouse.
9. The 2nd defendant also relies upon Clauses 2.2.3, 2.2.6 and 2.2.7 of a service agreement dated 20 February 2018 between the 1st defendant as a provider of warehouse workers and services and the 2nd defendant (the “Service Agreement”) to claim full indemnity from the 1st defendant. The Service Agreement provided :-
(1) Clause 2.1.6: “甲方 [the 2nd defendant] 須與乙方 [the 1st defendant] 合作遵守提供服務地點的安全守則和規條，共同維護業內環境，愛護園內設施，確保工作品質，達到客戶滿意。”
(2) Clause 2.2.3: “乙方須購買足夠的勞工保險、貨物保險及第三方保險。乙方若在甲方場內進行任何活動而引致甲方或甲方客戶或任何第三方之人身傷亡或財物貨品損失，乙方必須承擔賠償責任；若有任何人向甲方索賠，應由乙方自行負責。此外，甲方有權就該事故引致之損失，進行追討。就乙方或乙方人員引起的任何意外或損失，乙方需就每宗事故，提供不少於港幣5,000,000元的保險賠償。”
(3) Clause 2.2.6: “如因有關安全裝備、培訓或管理不足而引起的所有乙方工人，甲方或第三方人生傷亡或財物損失，均由乙方負責；若有任何人向甲方索賠，應由乙方自行負責。”
(4) Clause 2.2.7: “乙方工人在工作期間發生工傷事故全部費用由乙方承擔，乙方用功應簽定勞工協議，並辦理各種手續，如因工不當，給甲方造成損失由乙方承擔。”
V. ISSUES IN RELATION TO LIABILITY
10. Therefore, the issues in relation to liability are :-
(1) Whether the Accident happened as alleged or at all;
(2) Whether the 1st defendant was negligent and/or breached its duties owed to the plaintiff as alleged or at all;
(3) Whether the 2nd defendant was negligent and/or breached its duties owed to the plaintiff as alleged or at all;
(4) Whether the plaintiff was contributorily negligent; and
(5) Whether the 2nd defendant is entitled to contribution or indemnity from the 1st defendant, and what the apportionment should be if the 2nd defendant is entitled only to contribution but not indemnity.
11. For these issues, the plaintiff himself was the only live witness for his claim. The 1st defendant called its marketing director, Mr Chui Lit Ming (“Mr Chui”), to give evidence. The 2nd defendant called its ex-administrative officer (safety), Ms Wu Hang Yi (“Ms Wu”) to give evidence.
12. In fact, the 2nd defendant’s ex-human resources deputy manager, Ms Pang Mei Ting (“Ms Pang”), and its ex-warehouse deputy manager, Wong Wing Keung (“Wong”) had also prepared written witness statements for the present case. The 2nd defendant obtained sealed writs of subpoena against Ms Pang and Wong on 9 February 2024, but decided not to serve the same on any of them allegedly because in the 2nd defendant’s assessment, Ms Wu’s live evidence would be sufficient.
VI. WHETHER THE ACCIDENT HAPPENED AS ALLEGED OR AT ALL
13. The plaintiff’s description in the present case is not entirely the same as the description of his Notification of Accident dated 12 April 2018, his Declaration for Employees’ Compensation dated 12 April 2018 and his Declaration for Employees’ Compensation dated 28 April 2018. In those three documents, it was invariably described that the plaintiff felt tired, he then passed by the back entrance, suddenly blacked out (“眼前一黑”), lost balance, and fell from the Warehouse. The main differences between the present case and those documents are (1) no mention of blackout was made in the present case; and (2) no mention of stepping on the Wooden Pallet was made in those documents.
14. In this regard, in cross-examination, suggestions were made to the plaintiff that the reason for his failure to mention the blackout now is that the Labour Department had taken the view that there was no medical evidence to link the blackout to the Accident, and thus he has now changed his story to say that it was the Wooden Pallet that caused him to fall. The plaintiff denied. When asked why he did not mention in those documents (as he now in the present case) that he stepped onto the Wooden Pallet and why he did not mention in the present case (as he did in those documents) that he blacked out before the fall, the plaintiff answered that those descriptions were handwritten by his sister after he accounted orally to her what happened, and what he exactly told her sister was that he fell like as if he blacked out, but he did not really black out. He still signed those documents because at that time, he thought that what his sister wrote for him was more or less what he meant. However, according to him, when applying for the legal aid, he was told that the differences may risk his credibility adversely in the court’s assessment of evidence, but despite the risk, he chose to tell the true story in the present case.
15. The CCTV footage of the Accident provided by the 2nd defendant was played to the Court. It shows that the plaintiff egressed from the back entrance of the Warehouse by stepping onto the Wooden Pallet, and almost immediately, the plaintiff fell off together with the Wooden Pallet. As a result, the plaintiff fell from the Warehouse to the ground. Further, the A&E record also recorded that the plaintiff suffered injuries as a result of falling from the Warehouse.
16. I find that the plaintiff did tell his sister that he blacked out and lost balance. I come to this finding because it is inherently improbable that the plaintiff would sign those three documents, that is, signing three times in total, to verify the description including the blackout if this were not true – it would be easy for the plaintiff to ask his sister to correct the description by adding “as if” (好似) if he really meant to tell that he fell as if he blacked out. Further, in the said Declaration, he was asked specifically why he felt dizzy or fainted. He could have corrected at that point of time that he actually did not feel dizzy or fainted at all, but he did not do so.
17. However, the fact that he did black out (or felt dizzy) before losing balance and the fall is actually consistent with the fact that he also stepped onto the Wooden Pallet. It could be, and it is my finding, that he blacked out (or felt dizzy), stepped onto the Wooden Pallet, lost balance, and fell. He did not mention the Wooden Pallet in those documents probably (and thus it is my finding) because as suggested by the defendants, the plaintiff knew that he should not have used the Wooden Pallet, but because the blackout or the dizziness had been regarded as insufficient for the plaintiff to claim against the defendants, he now chose to tell the full story although he himself may be regarded as also responsible for the Accident.
18. It is neither the 1st nor the 2nd defendant’s case, whether by way of complete defence or contributory negligence, that the plaintiff’s fall was caused or partly caused by his own blackout or dizziness. Therefore, my finding that the Accident did take place as described by the plaintiff in the present case with an additional finding that he suffered blackout or dizziness right before the fall should not affect how the parties would have run their case and conducted the trial.
VII. USE (IF ANY) OF BACK ENTRANCE FOR EGRESS
19. Before I proceed to answer the other issues, it is important first to make findings in relation to the use (if any) of back entrance for egress.
A. Not in dispute
20. It is not in dispute that :-
(1) At the time of the Accident, the plaintiff egressed from the back entrance for the toilet west to the back entrance for washing hands before lunch;
(2) The back entrance was not the only way for the plaintiff to egress from the Warehouse;
(3) There was another entrance at the other end of the Warehouse, namely, the main entrance, and there was a toilet south to the main entrance;
(4) It would be less convenient if one would have to walk from the area of the back entrance to the main entrance for either of the toilets, because one would have to walk the distance between the back entrance and the main entrance;
(5) This convenience was the reason why the plaintiff chose to use the back entrance rather than the other end because he was to go to toilet for washing hands before lunch;
(6) It was risky and dangerous for any worker to egress from the back entrance of the Warehouse, whether by itself or by using the Wooden Pallet as the plaintiff did; and
(7) For loading and unloading at the back entrance, the Wooden Pallet would not be used.
B. Safety Guidelines and Safety Warning
21. In relation to the plaintiff’s use of the back entrance for egress, the 1st defendant relies upon the Safety Guidelines (the plaintiff’s receipt of which was acknowledged by his signature on the 1st defendant’s record) and the Safety Warning. In my view, the instructions and warnings in the Safety Guidelines were too general – it did not refer to the back entrance of the Warehouse or any specific area at all, but simply instructed or warned, in essence, workers not to approach dangerous places. Such instructions or warnings were patently insufficient.
22. The Safety Warning was more specific. It specifically stated “嚴禁在此上落” underlined in red. It was posted at the right side of the back entrance. This side was the very side, as shown by the CCTV footage, where the plaintiff held the side when stepping onto the Wooden Pallet. According to the evidence of Ms Wu, which is unchallenged, the Safety Warning was A3-size and posted about 1.8m-1.9m above the floor of the Warehouse. This Safety Warning, in my view, was conspicuous enough. In fact, in his oral evidence, the plaintiff also agreed that the Safety Warning was conspicuous.
C. Plaintiff’s evidence
23. However, the plaintiff alleged that he did not notice its existence before the Accident. I do not accept such allegation. According to Ms Wu’s evidence (which I accept here because the plaintiff alleged that he did not notice the existence of the Safety Warning even at the time of the Accident and thus he simply did not have any knowledge of when the Safety Warning had been there), the Safety Warning had been posted there when she started to work at the Warehouse in around June 2016. The plaintiff started to work at the Warehouse on 8 February 2018. By the time of the Accident, he had worked there for almost 2 months. Given that the Safety Warning was conspicuous, it is more probable than not, and so I find, that he had noticed the Safety Warning by the time of the Accident. This finding is also consistent with the explanation (as I have found above) for his failure to mention the Wooden Pallet in those documents verified by him shortly after the Accident – he knew from the Safety Warning that he should not have used the back entrance for egress and thus he did not mention this in those documents which he intended to use to claim compensation.
24. According to the plaintiff, workers at the Warehouse, be they the 2nd defendant’s own employees or outsourced workers like the plaintiff, often used the back entrance for egress for the toilet west to the back entrance, because it would be less convenient to walk all the way to the main entrance, which according to him, would take 2-3 minutes more. The plaintiff said that the Wooden Pallet was always put at the back entrance (as at the time of the Accident) for that purpose, although he did not know who put it there. The plaintiff also said in his witness statement that when he started to work at the Warehouse, his colleagues told him that he could use the back entrance for egress, although in the witness statement, he did not name who were those colleagues. During his oral evidence, the plaintiff alleged that when he started to work at the Warehouse in February 2018, a supervisor of the 2nd defendant called “Brother Wah” (華哥) was among those colleagues who told him that he could use the back entrance for the toilet. This is not mentioned in any of his witness statements but was mentioned for the first time in Court. Such important evidence would have been mentioned in the witness statements if true. I find that the plaintiff exaggerated in this respect, and reject his such evidence outright.
25. The plaintiff further said in his 2nd supplemental witness statement that no one had ever stopped him or other workers using the Wooden Pallet at the back entrance even though he and other workers used the Wooden Pallet at the back entrance for egress every day, and that “Brother Wah” himself also used the Wooden Pallet at the back entrance for egress. The plaintiff also said that “Brother Wah” never drew his attention to the Safety Warning.
D. Ms Wu’s evidence
26. Ms Wu is the only witness for the 2nd defendant, while the 1st defendant’s witness Mr Chui simply does not have knowledge of the Warehouse, a matter to which I shall return later. Ms Wu was formerly employed by the 2nd defendant as an Administrative Officer (Safety) and left the 2nd defendant in 2021. Her independence was not challenged. Howsoever independent she appeared, her evidence was dampened by her failure to recollect what happened back in 2018 and her evasiveness as regards certain matters in her evidence. Examples are:-
(1) During the cross-examination, when asked how often she patrolled the Warehouse especially the area of the back entrance, at one time, her answer was that she was not certain, and that she did not have exact records because there was a monthly record which she would check as done so long as she did the patrol that month. However, later in the cross-examination, she alleged that she patrolled the Warehouse including the area of the back entrance as well as the area outside the Warehouse every afternoon;
(2) As regards whether the Wooden Pallet had already been put at the back entrance prior to the Accident, one would think that if Ms Wu did as she alleged patrol the Warehouse and the area outside every afternoon, she would have noticed what were put at the back entrance and what not. I disagree with Mr Ho’s submissions that wooden pallets such as the Wooden Pallet would have been placed here and there at the Warehouse and so it was nothing unusual that Ms Wu would not have noticed the existence of the Wooden Pallet at the back entrance. However, in my view, when the Accident came with the Wooden Pallet playing a main role in the Accident, she would at least back then be able to recall whether or not it was her first time she became aware of the Wooden Pallet. She would now at least have some impression of what she recalled at that time, given that it was in the context of an accident. However, her answer was repeatedly “not sure” or “cannot remember”. While this took place 5-6 years ago in 2018, such an accident did not take place often – in fact, to her knowledge, the Accident was not the only one. A person in Ms Wu’s position should have had some recollection or impression as to whether the Accident was her first time to come to notice the Wooden Pallet;
(3) In §5 of her witness statement, Ms Wu said that :-
“本人工作時，沒有公司員工經常使用該上落貨平台作為進出該貨倉的通道，本人沒有發覺有外判工人在意外前這麼使用該上落貨平台的習慣。”(my emphases)
(4) 經常 (often) and 習慣 (custom) are used in daily language, and their natural and ordinary meanings are not difficult to understand. Both carry the meaning of “frequent”, “regular” but do not carry any meaning of “absolute”. In other words, when reading §5 of Ms Wu’s witness statement, that is, the workers did not often use the back entrance for egress and she did not find that the workers had the custom of using the back entrance for egress, the meaning behind this must be that sometimes, the workers used the back entrance for egress, though it was not often and not the workers’ custom to do so;
(5) In cross-examination, as regards “often”, Ms Wu said that she never saw any workers using the back entrance for egress, but was not sure if she heard from others that workers had sometimes used the back entrance for egress. As regards “custom”, she said that this should be deleted from §5.
27. In my view, giving her the benefit of doubt as an independent witness, she was not sure, could not remember or appeared inconsistent in her evidence either because she did not patrol the Warehouse as alleged or at all, or because she did not patrol it properly, at least not properly with regard to the use of the back entrance for egress but patrolled more for other purposes, one of which was to check whether any parts in the Warehouse need be repaired, as she suggested in cross-examination. Thus, given that it was 5-6 years ago, she simply could not have any meaningful recollection of the use (if any) of the back entrance and what was there at the back entrance. Thus, I do not rely on her recollection to make any findings in relation to the back entrance. I also do not rely on her collection to make any findings in relation to any supervision undertaken by the 2nd defendant, if any. The 2nd defendant’s counsel, Mr Leon Ho’s, attempt to rely on the evidence of the plaintiff having seen the CCTV footage that there were some supervisors at the Warehouse is unhelpful given that the plaintiff simply could not say what those supervisors were doing at the Warehouse.
28. However, as regards her evidence which is eminent of logic and common sense, I accept, namely, that (1) the lunchtime for her and the workers (including the plaintiff) at the Warehouse started at 1 pm; (2) logically, it would be during and shortly before the lunchtime that there was the highest chance that workers might use the back entrance for toilet. It is clear from this that despite the highest chance, Ms Wu allegedly only patrolled the Warehouse in the afternoon.
29. I also accept Ms Wu’s evidence that when she followed the plaintiff to the hospital after the Accident, she heard the plaintiff saying to his father and sister that “only for convenience sake” (貪方便) he used the back entrance for egress. I accept this evidence because (1) this episode was recorded by Ms Wu in the investigation report compiled by her to the 2nd defendant shortly after the Accident in April 2018; (2) this evidence is not challenged by the plaintiff; and (3) the plaintiff does not offer any good reason for not producing his father and sister to give evidence in this regard.
30. However, I do not accept Ms Wu’s evidence in this regard in §6 of her witness statement. On top of her hearing the plaintiff say to his father and sister that it was “only for convenience sake”, she added in her witness statement that she also heard the plaintiff say he knew “this was breach of the company’s regulations and was dangerous”. I do not accept this because (1) her witness statement was made on 14 June 2022, and as she had to admit during cross-examination, her memory back in 2018 must be better than in 2022 in relation to what happened at the hospital; and (2) in the aforesaid investigation report, there was a section “cause of the accident” and under that section, there were “breach of workers’ regulations”, “workers’ failure to take sufficient measures/safety equipment” and “others” to choose; however, Ms Wu only chose “others” writing that “the plaintiff did not use the correct route”, and did not choose any of the other two.
E. Failure to produce Ms Pang and “Brother Wah”
31. As regards “Brother Wah” mentioned by the plaintiff, according to Ms Pang’s supplemental witness statement (filed before the plaintiff’s 2nd supplemental witness statement), “Brother Wah” was indeed a supervisor employed by the 2nd defendant, but he had left the 2nd defendant’s employment. Ms Pang, however, in her supplemental witness statement said that she managed to reach “Brother Wah”. According to Ms Pang, “Brother Wah” told her that he all the time let all the outsourced workers including the plaintiff know what was the correct route for passage and that he told them not to use the back entrance for egress, and that he never saw anyone using the back entrance for egress.
32. For no reason proffered by Ms Pang (or any other witness statements of the 2nd defendant), “Brother Wah”, though Ms Pang managed to contact him for her supplemental witness statement, was not asked to prepare any statement or was not subpoenaed to give evidence to assist the Court. Worse, Ms Pang herself did not come to give any oral evidence at all, and although as mentioned above, the 2nd defendant had obtained writ of subpoena against Ms Pang, it did not serve the same on Ms Pang. For the following reasons, I do not agree with the 2nd defendant’s view that Ms Wu’s live evidence would be sufficient so that there was no need to call Ms Pang :-
(1) It is clear that “Brother Wah”, being the supervisor at the Warehouse, would have personal knowledge of how the Warehouse was operated and managed. This is the very reason why Ms Pang would still have to contact “Brother Wah” in relation to the back entrance of the Warehouse, and even account the conversation between herself and “Brother Wah” in her supplemental witness statement;
(2) In the plaintiff’s 2nd supplemental witness statement, the plaintiff made direct reference to how “Brother Wah” would or would not do in relation to workers using the back entrance and to himself using the back entrance. Clearly, “Brother Wah” would be a very relevant witness with personal knowledge of the matters. Ms Pang would be the only one who would be able at least to say something on behalf of “Brother Wah” on the apparent basis that she had contacted “Brother Wah” about the Warehouse;
(3) However, Ms Wu, who adopted parts of Ms Pang’s witness statements, did not adopt the part in relation to “Brother Wah”. This is something the 2nd defendant knew at latest by 23 February 2024 when Mr Ho filed his opening submissions that date stating that Ms Wu would not adopt those parts. If the 2nd defendant would like to, there would be sufficient time for it to serve the subpoena (sealed as early as 9 February 2024) on Ms Pang for this trial commencing on 4 March with 5, 6, 7, 8 and 11 March 2024 reserved.
33. Not only is there no good reason for not calling Ms Pang, there is, in my view, also no good reason for not calling “Brother Wah” by way of subpoena. I have already explained the importance of the evidence of “Brother Wah” in subparagraph (1) and (2) above, and there has been nothing to prevent the 2nd defendant from applying for subpoena against “Brother Wah” as early as the date of filing the supplemental witness statement of Ms Pang on 10 June 2022, but the 2nd defendant has never applied for subpoena against “Brother Wah”.
34. Given the lack of good reason for not calling Ms Pang and Brother Wah, given the unsatisfactory evidence of Ms Wu as explained above, and given the plaintiff’s evidence raising at least a prima facie case of what he says, I draw an adverse inference that :-
(1) “Brother Wah” did see workers at the Warehouse using the Wooden Pallet at the back entrance for egress;
(2) “Brother Wah” himself also used the Wooden Pallet at the back entrance for egress;
(3) “Brother Wu” never stopped the plaintiff or other workers using the Wooden Pallet at the back entrance even though the plaintiff and other workers used the back entrance for egress every day; and
(4) “Brother Wah” never drew the plaintiff’s attention to the Safety Warning.
F. Failure to produce Wong
35. As regards Wong, his witness statement was largely covered by Ms Wu’s as well as the photo showing the Safety Warning. I do not take the failure to produce Wong for cross-examination as a basis for drawing adverse inference.
G. Mr Chui’s evidence
36. Mr Chui’s evidence is that he (on behalf of the 1st defendant) had no idea of what the working conditions were at the Warehouse. He allegedly made a request to a person of the 2nd defendant for permission for inspection of the working conditions before entering into the Service Agreement with the 1st defendant, his request was refused, and he did not follow up. That person of the 2nd defendant he allegedly sought permission was unnamed in his witness statements, but for the first time, in cross-examination, he said that it was a Ms Tsang Siu Hung, an assistant human resources officer, allegedly after reviewing his records two weeks before the trial commenced knowing that the trial would start soon. Ms Wu’s evidence is that Ms Tsang Siu Hung was indeed the contact person with the 1st defendant, but according to the 2nd defendant’s record, there was no such request made as alleged.
37. Mr Chui’s evidence in this regard is entirely unsatisfactory. No records the review of which allegedly prompted him to name Ms Tsang were produced. Further, had the name of the person to whom he made the request was made known earlier (and he had ample opportunity to do so), the 2nd defendant may well be able to answer with that person’s assistance. In the circumstances, I am not satisfied that there is sufficient evidence that Mr Chui did make the request for inspection as alleged.
38. Mr Chui also said that he did not ask, and was not told by, any of the 1st defendant’s workers sent to the Warehouse about the working conditions. In essence, he said that he had no idea of what the working conditions at the Warehouse were. This evidence is not challenged, and is potentially against the 1st defendant. I accept this evidence.
39. I also accept his evidence, which is also not challenged and is potentially against the 1st defendant, that the 1st defendant gave the Safety Guidelines to the plaintiff for him to read once only before the plaintiff started working at the Warehouse, and the plaintiff was not given any opportunity to read the Guidelines anymore, and was not reminded orally or in writing of what the Guidelines said.
40. Relatedly, Mr Chui never said that the 1st defendant sent any foreman or supervisor to supervise the 1st defendant’s workers at the Warehouse, and he was not put that the 1st defendant did that. I mention this because in Ms Wu’s cross-examination, she alleged for the first time that the 1st defendant did send a foreman or a supervisor to work at the Warehouse. Given the unsatisfactory quality of Ms Wu’s evidence, and given that this would be a matter that should have come from the 1st defendant if true, I find that the 1st defendant did not send any foreman or supervisor to supervise the 1st defendant’s workers at the Warehouse.
H. Wooden Pallet
41. Of all the witnesses, only the plaintiff has the personal knowledge of the features of the Wooden Pallet. This may be the reason why neither the 1st nor the 2nd defendants seriously challenged the plaintiff’s evidence in this respect.
42. If the Wooden Pallet was not used for loading and unloading, why was it put at the back entrance? Given the evidence as analysed above, in all likelihood, the Wooden Pallet was put there as a makeshift staircase for workers to egress from and enter through the back entrance.
43. As regards when the Wooden Pallet was put there and who put the Wooden Pallet, I have drawn an adverse inference that “Brother Wah” himself used the Wooden Pallet at the back entrance for egress prior to the Accident. Thus, in all likelihood, and so I find, the Wooden Pallet must have been put at the back entrance prior to the Accident for the workers at the Warehouse to egress as a makeshift staircase with the 2nd defendant’s knowledge via “Brother Wah”.
44. Given my findings above, I do not need to determine whether the 2nd defendant’s failure to produce other parts of the CCTV should constitute a basis for me to draw any adverse inference as to who put the Wooden Pallet and when it was put, as the plaintiff’s counsel, Mr Alfred Cheng, would like me to draw.
I. Summary of material findings of fact
45. In summary, I make the following material findings of fact in relation to the use of the back entrance :-
(1) The Safety Warning was clear and conspicuous enough and so the plaintiff had noticed the Safety Warning prior to the Accident (see §23 above);
(2) During and shortly before the lunchtime that there was the highest chance that workers might use the back entrance for toilet, but Ms Wu did not patrol the back entrance (or any other parts of the Warehouse, inside or outside) during lunchtime (see §§26-28 above);
(3) The plaintiff did tell his father and sister that he used the back entrance only for convenience sake, but he did not tell them that the use was breach of the company’s regulations and dangerous (see §§29-30 above);
(4) “Brother Wah” did see workers at the Warehouse using the back entrance for egress (see §34(1) above);
(5) “Brother Wah” himself also used the back entrance for egress (see §34(2) above);
(6) “Brother Wu” never stopped the plaintiff nor other workers using the back entrance even though he and other workers used the back entrance for egress every day (see §34(3) above);
(7) “Brother Wah” never drew the plaintiff’s attention to the Safety Warning (see §34(4) above);
(8) With the above fact-findings, in all likelihood, the colleagues (whose identifies are however unknown) did tell the plaintiff that he could use the Wooden Pallet at the back entrance of the Warehouse for egress (see §24 above);
(9) Mr Chui and thus the 1st defendant did not make any attempt to inspect or know the working conditions at the Warehouse, and had no idea what they were like (see §§36-38 above);
(10) The plaintiff was only given the Safety Guidelines to read once before starting to work at the Warehouse, and was not reminded in any manner of the Guidelines thereafter (see §39 above);
(11) The 1st defendant did not send any foreman or supervisor to supervise the 1st defendant’s workers at the Warehouse (see §40 above); and
(12) The Wooden Pallet was put there for use as makeshift staircase for egress from the Warehouse with the 2nd defendant’s knowledge (see §§42-43).
VIII. WHETHER THE 1ST DEFENDANT WAS NEGLIGENT AND/OR BREACHED ITS DUTIES OWED TO THE PLAINTIFF
46. In relation to an employer’s duty owed to its employees :-
(1) An employer owes a duty of care to take reasonable care for his employees’ safety, involving “provision of safe co-workers, a safe place of work, safe equipment, safe and proper instructions and supervision and adequate training” (emphasis added): see Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371 at §24 per Bokhary PJ;
(2) An employer is not exempted from this duty even though the employee is experienced and might lay down a reasonable safe system of work on his own had he been the employer. The reality is that employees have to make their decision in places of danger and in circumstances where “the dangers are obscured by repetition”: see General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 189, applied by Nguyen J in Yeung Sze Hoi v New Trade Good Food Centre Ltd, HCPI 568/2004, 22 April 2005 at §9;
(3) As Lord Reid sat at 194 in General Cleaning Contractors Ltd v Christmas, supra (cited at §9 in Yeung Sze Hoi v New Trade Good Food Centre Ltd, supra) :-
“Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required…. No doubt he cannot be certain that his men will do as they are told when they are working alone. But if he does all that is reasonable to ensure that his safety system is operated he will have done what he is bound to do.” (emphasis added)
(4) In other words, mere workers’ knowledge and understanding of the danger of the workplace is not a reason for the employer to do nothing to address the danger: see Clerk & Lindsell on Torts (24th ed) at §12-21. Relatedly, mere instructions (which would construct the safety system) without measures to ensure that the instructions are followed (and thus to ensure that the system is operated properly or at all) may be insufficient to discharge the employer’s duty: see Swarnjit Kaur v Lo’s Cleaning Services Ltd [2023] 3 HKLRD 629 at §62 per DDJ George Lam. “Positive steps”, such as regular inspections to ensure that safety measures are indeed taken by the employees, may be necessary: see Yip Wai Chung v Kwong Leung Engineering Co Ltd, HCPI 162/2005, 28 November 2005 at §§10-12 per DHCJ Saunders;
(5) When an employer sends its employees to work in a place not of his but of some other occupier, the employer may still be personally liable if the occupier fails to take reasonable care towards the employees’ safety, depending on the circumstances of the case: see Cook v Square D Ltd [1992] ICR 262 at 269 per Farquharson LJ; Clerk & Lindsell on Torts (24th ed) §12-22.
47. In the present case, there is no dispute that it was risky and dangerous to egress from the back entrance of the Warehouse, whether by itself or via the Wooden Pallet. Although the plaintiff knew the Safety Warning, the reality was that colleagues told him that he cold use the back entrance for egress, and that even “Brother Wah”, a supervisor of the 2nd defendant, also used the Wooden Pallet for egress and he, though having seen workers egressing using the Wooden Pallet, never stopped the plaintiff or any other workers from doing so. In my view, any danger of using the Wooden Pallet or the back entrance for egress had been “obscured by repetition” of colleagues and “Brother Wah” using the Wooden Pallet, and mere knowledge on the part of the plaintiff of the Safety Warning would not be sufficient to absolve the 1st defendant in the circumstances. The 1st defendant made no attempt to ascertain what the working conditions of the Warehouse were, made no attempt to remind, orally or in writing, of the Safety Guidelines to the plaintiff, and made no attempt to ensure (for example, by sending a foreman or supervisor) that its workers would comply with the Safety Warning at the Warehouse. In the premises, I find that the 1st defendant failed its duty to take reasonable care in failing to provide a reasonable supervision. In other words, the 1st defendant was negligent and liable for the plaintiff’s loss and damage caused by the Accident.
48. For the sake of completeness, I have considered the submissions by Mr Chung, on behalf of the 1st defendant, and by Mr Ho, on behalf of the 2nd defendant, that there was no duty for the 2nd defendant to warn the plaintiff of obvious risks, let alone any duty to take positive steps to ensure that the Safety Warning would be complied with. Whether such duty exists is a question of fact depending on all the relevant circumstances, one of which is the employer-employee relationship where the Court has invariably required the employer to provide a safe system of work. However, all the cases Mr Ho refers me to[1] in support of such bald submissions are not cases in the employment context, and while those cases show how the general legal principles were applied in specific cases, I do not find them helpful to me in resolving the dispute in the present case. Although Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 referred to me by Mr Chung is an employer-employee case, a material distinction in the present case is that colleagues told the plaintiff that he could use the back entrance for egress, and that even “Brother Wah”, a supervisor of the 2nd defendant, also used the Wooden Pallet for egress and he, though having seen workers egressing using the Wooden Pallet, never stopped the plaintiff or any other workers from doing so, contra Wilson v Tyneside Window Cleaning Co, where the employee was a 14-year experienced worker essentially working on his own. This distinction is material because even though the plaintiff may be said to be aware of the risk and danger associated with using the back entrance for egress, the system as a result of the constant breach of the Safety Warning by colleagues and even by “Brother Wah”. The danger here, howsoever obvious it had been, was not only “obscured by repetition” by the plaintiff’s own use of the back entrance, but even by those surrounding the plaintiff including “Brother Wah” being a supervisor there.
49. Both Mr Chung and Mr Ho also make the submissions that the Accident happened when the plaintiff was on the way to toilet, and this was not part of the plaintiff’s job, and thus the 1st defendant (and the 2nd defendant as well) owed no duty to the plaintiff in the first place. Such submissions are stated to be rejected. The Accident happened during working hours, and at least going to toilet during working hours must be incidental to the employment. Just as it would be absurd to suggest that an employee’s salaried working hours should be reduced according to the time he spends in toilet to answer natural calls, so would it be to suggest that the employer’s duty would be reduced or even removed when the employee is on the way to toilet.
50. Lastly, during the cross-examination, Mr Chui said that he relied on the size and good reputation of the 2nd defendant and so he was satisfied that the 2nd defendant would provide sufficiently safe of working environment to the 1st defendant’s employees. Mr Chung, on behalf of the 1st defendant, also made submissions along this line. However, the 1st defendant has not pleaded this as a defence either against the plaintiff or against the 2nd defendant’s contribution notice. It is thus not open for the 1st defendant now to run this defence, because if this size and reputation issue had been put properly, there may well be dispute over the size and reputation of the 2nd defendant and the sufficiency of what degree of size and reputation themselves that would discharge the 1st defendant’s duty.
IX. WHETHER THE 2ND DEFENDANT WAS NEGLIGENT AND/OR BREACHED ITS DUTIES OWED TO THE PLAINTIFF
51. Section 7(1) of the Occupational Safety and Health Ordinance (Cap 509) (the “OSHO”) provides that :-
“If an employee’s workplace is located on premises that are not under the control of the employee’s employer, the occupier of the premises must ensure that :-
(a) the premises; and
(b) the means of access to and egress from the premises; and
(c) any plant or substances kept at the premises,
are, so far as reasonably practicable, safe and without risks to health.”
52. I do not see that the Occupiers Liability Ordinance (Cap 314) adds any substance to this.
53. What are reasonably practicable depend on the circumstances, including (1) the likelihood of the occurrence of the event that causes the damage; (2) the proportionality of the costs and expenses involved in the preventive measures vis-à-vis the risks involved; and (3) the difficulty in overcoming the risk: see Marshall v Gotham Co Ltd [1954] AC 360 at 373 per Lord Reid.
54. Further, in the context of the premises engaging independent contractor to provide workers, there exists sufficient proximity between the workers and the premises operator to impose upon the latter a duty of care as if it is his employer to ensure his personal safety: see Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14 at §§39-41 per Bokhary PJ delivering the unanimous judgment of the CFA.
55. Mr Ho, on behalf of the 2nd defendant, submits at pains that there is no evidence to suggest, and it is not open to find absent pleadings, that the Wooden Pallet was put there by the 2nd defendant or with the knowledge of the 2nd defendant, and therefore, the 2nd defendant should not be liable. Such submissions are in my view barking at the wrong tree. The pertinent question is whether the 2nd defendant took reasonably practicable measures to ensure that the Warehouse was safe, and in this context, in my view, by ensuring its Safety Warning that the back entrance should not be used for egress would be complied with. I should add here that in any event, the Safety Warning did not mention any staircase or wooden pallet, meaning that the safety system which the 2nd defendant should operate was simply that the back entrance should not be used for egress.
56. Mr Ho submits that since the back entrance should not have been used for egress, section 7(1)(b) of the OSHO should not apply to the back entrance. However, in my view, it is section 7(1)(a) that is applicable – to the whole Warehouse, including of course the back entrance.
57. Mr Ho also submits that the 2nd defendant was an occupier and the duty on it, even if akin to an employer, should not exact the measures as the 1st defendant being the employer to satisfy the reasonable standard. Such submissions may serve as a general proposition. However, the Court has to look at the subject matter on a case-by-case basis. In the present case, the subject matter is the back entrance of the Warehouse. The 2nd defendant had the full control over it just as if the 1st defendant would have had the 1st defendant controlled the Warehouse. The subject matter is, for example, not whether the plaintiff was given sufficient training, which one would think that the duty on the 1st defendant may exact more measures to take than the 2nd defendant. Therefore, at least in the present case, the 2nd defendant’s duty should require it to take reasonable measures to ensure compliance with the Safety Warning.
58. In the present case, the 2nd defendant itself said that it had supervisors inspecting the Warehouse both inside and outside to, inter alia, ensure that the back entrance would not be used for egress. It would be easy for any supervisor to notice the Wooden Pallet (if the inspection was done properly) and take it away. It would also be easy for any supervisor to inspect the back entrance around and during the lunchtime, being the time when the chances of workers using the back entrance for egress were the highest (as admitted by Ms Wu). Inspection around and during lunchtime would not add any costs to the 2nd defendant because it had supervisors to do the inspection anyway and it would be a matter of when the inspection should take place. However, the 2nd defendant did none of that.
59. It would also be easy for “Brother Wah”, being a supervisor employed by the 2nd defendant, himself to set an example for the workers by not using the back entrance for egress. Even if he was not to set an example himself, it would also be easy for “Brother Wah” simply to stop any workers using the back entrance for egress when he saw them doing so. However, “Brother Wah”, on behalf of the 2nd defendant, did none of that.
60. In the circumstances, I find that the 2nd defendant, being the occupier of the Warehouse, failed to take reasonably practicable and safe measures to ensure that the back entrance of the Warehouse was safe, in breach of section 7(1) of the OSHO and section 3 of the Occupiers Liability Ordinance as well as its common law duty, and thus is also liable for the plaintiff’s injuries.
X. WHETHER THE PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT
61. An employee would usually not be found to be contributorily negligent simply because he had a momentary lapse in attention or inadvertence: see Clerk & Lindsell on Torts (24th ed, 2023) §12-64, as opposed to the employee’s conscious acceptance of a risk of injury in the way he acted, where the employee would be found to be contributorily negligent: see Ng Tim Yip Kevin v Chan Ho Kin, CACV 285/2007, 23 October 2008 (unreported) at §52.
62. In the present case, I find that in using the Wooden Pallet for egress from the back entrance, the plaintiff consciously accepted the risk of injury associated with using the Wooden Pallet :-
(1) Although there was no system in place to ensure compliance with the Safety Warning, the plaintiff, as I have found, knew the existence of the Safety Warning. It is one thing that the 1st and 2nd defendant failed to provide such a system and take measures to ensure compliance with the Safety Warning, as a result of which failure they breached their duties; it is another thing that the plaintiff himself ignored the Safety Warning and assumed the risk and danger;
(2) With or without the Safety Warning, the risk and danger of using the Wooden Pallet as a staircase for egress from the Warehouse above the ground was obvious – the Wooden Pallet was not fixed but just tilted against the edge, and the Warehouse was elevated about 1.5m – 1.7m, roughly a person’s height. Anyone, let alone the plaintiff who worked at container yards in 2005 and became a licensed forklift driver in 2007, would well appreciate the risk and danger. Although the fact that many other workers or even the supervisors had also used the Wooden Pallet for egress many times in the past without any accident may have boosted the plaintiff’s appetite for the risk of using the Wooden Pallet and/or obscured the risk, this does not mean that the plaintiff had no responsibility to take care of his own safety;
(3) The plaintiff himself admits that prior to the Accident, he had use the Wooden Pallet for egress for a number of times. Thus, the use could not be any momentary lapse in attention or inadvertence as to the risk. It is more appropriate to describe the use as “only for convenience sake” (貪方便), as the plaintiff told his father and sister at hospital.
63. In determining the extent of the contribution by the plaintiff himself, I have to consider all the circumstances. As I have found, the plaintiff appreciated the obvious risk and consciously took the obvious risk. However, the 2nd defendant’s supervisor “Brother Wah” himself also used the Wooden Pallet for egress. “Brother Wah”’s use and the 1st and 2nd defendants failure to take measures to ensure that the back entrance would not be used for egress, in my view, make the plaintiff’s own contribution relatively less. To reflect this, I find that the plaintiff is 35% liable.
XI. WHETHER THE 2ND DEFENDANT IS ENTITLED TO CONTRIBUTION OR INDEMNITY FROM THE 1ST DEFENDANT
64. The 2nd defendant relies on Clauses 2.2.3, 2.2.6 and/or 2.2.7 to seek full indemnity from the 1st defendant.
65. For convenience, I set out these clauses here again, with my emphases added to certain words :-
(1) Clause 2.2.3: “乙方 [the 1st defendant] 須購買足夠的勞工保險、貨物保險及第三方保險。乙方若在甲方 [the 2nd defendant] 場內進行任何活動而引致甲方或甲方客戶或任何第三方之人身傷亡或財物貨品損失，乙方必須承擔賠償責任；若有任何人向甲方索賠，應由乙方自行負責。此外，甲方有權就該事故引致之損失，進行追討。就乙方或乙方人員引起的任何意外或損失，乙方需就每宗事故，提供不少於港幣5,000,000元的保險賠償。”
(2) Clause 2.2.6: “如因有關安全裝備、培訓或管理不足而引起的所有乙方工人，甲方或第三方人生傷亡或財物損失，均由乙方負責；若有任何人向甲方索賠，應由乙方自行負責。” (my emphasis)
(3) Clause 2.2.7: “乙方工人在工作期間發生工傷事故全部費用由乙方承擔，乙方用功應簽定勞工協議，並辦理各種手續，如因工不當，給甲方造成損失由乙方承擔。” (my emphasis)
66. As regards the construction of contractual clauses intended to exclude liability arising from negligence, Canada Steamship Lines Ltd v The King [1952] AC 192 at 208, adopted by the Hong Kong Court of Appeal in Dense Billion Ltd v Hui Ting-Sung and Others [1996] 2 HKLRD 107 and recently applied by Bebe Chu J in 陳炳華 v 家利物業管理有限公司 [2020] HKCFI 3010, remains good law in Hong Kong. The legal principles are well-established, as set out at Canada Steamship Lines Ltd v The King, supra at 208 :-
“(1) If the clause contains language which expressly exempts the person in whose favour it is made (hereafter called the ‘proferens’) from the consequence of the negligence of his own servants, effect must be given to that provision.
(2) If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens. If a doubt arises at this point, it must be resolved against the proferens…
(3) If the words used are wide enough for the above purpose, the court must then consider whether "the head of damage may be based on some ground other than of negligence," to quote again Lord Greene in the Alderslade case. The “other ground must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it; but subject to this qualification, which is no doubt to be implied from Lord Greene’s words, the existence of a possible head of damage other than that of negligence is fatal to the proferens even if the words used are prima facie wide enough to cover negligence on the part of his servants.”
67. In the present case, as regards Clause 2.2.3, it is a clause concerning activities undertaken by the 1st defendant that would cause loss and damage to the 2nd defendant or third part(ies). Clearly, the activities undertaken by the 1st defendant had to be undertaken by its agent, and in the present context, the agent was the plaintiff. However, the loss and damage in question was done to the plaintiff himself. It would be therefore regarded as the 1st defendant causing loss and damage to the 1st defendant itself, which is not a scenarios covered by Clause 2.2.3. Although employees insurance is mentioned in Clause 2.2.3, in my view, it is where one employee of the 1st defendant (as agent of the 1st defendant) would cause loss and damage to another employee of the 1st defendant that the employee insurance would be relevant. Thus, I do not think Clause 2.2.3 advances the 2nd defendant’s case against the 1st defendant at all.
68. In any event, applying Canada Steamship Lines Ltd v The King, supra, Clause 2.2.3 must be construed to refer to mean that the 1st defendant shall be responsible for all the loss and damage insofar as caused by the 1st defendant’s default. It follows that where the 2nd defendant’s default also contributes to the loss and damage, the 2nd defendant should also be responsible. While this clause, so construed, seems to state the obvious, it is not unusual for contractual parties to spell out the obvious in a written contract to avoid any unnecessary arguments as well as to ensure that the other contractual parties would have thought through the matter well. So, Clause 2.2.3 does not support the 2nd defendant’s case that the 1st defendant should fully indemnify the 2nd defendant.
69. Clause 2.2.6 states that if injuries were caused to the 1st defendant’s worker (and in the present case, the plaintiff) due to insufficient safety equipment, training or management, then the 1st defendant would be responsible for all the loss and damage and for any claim against the 2nd defendant. Clause 2.2.6 does not state who to provide the safety equipment, training or management. But logically, Clause 2.2.6 must be meant to envisage the loss and damage caused by the 1st defendant’s failure to provide the safety equipment, training or management, but not the 2nd defendant. Otherwise, an absurdity would result that the 1st defendant would be held responsible for any loss and damage caused by the 2nd defendant’s failure to make such provisions.
70. The question is whether the 1st defendant would be held liable for all the loss even though the causation of the loss and damage is only partly caused by the 1st defendant’s such failure. Similar to Clause 2.2.3, applying Canada Steamship Lines Ltd v The King, supra, Clause 2.2.6 must be construed to refer to mean that the 1st defendant shall be responsible for all the loss and damage insofar as caused by the 1st defendant’s failure. So, Clause 2.2.6 does not assist the 2nd defendant either.
71. Clause 2.2.7 specifically refers to injuries suffered by the 1st defendant’s workers during the course of employment. The injuries suffered by the plaintiff here are no doubt such injuries. Accordingly, “all the costs and fees” (全部費用) would be borne by the 1st defendant. “All the costs and fees” here must not be literally understood to refer to “costs and fees” only; to companies such as the 1st defendant and the 2nd defendant, compensation for personal injuries is part of their operational costs. That said, similar to Clauses 2.2.3 and 2.2.6, Clause 2.2.7 should be construed to mean that the 1st defendant shall be responsible for any “costs and fees” (as contrasted by me) insofar as the 1st defendant causes such “costs and fees”. In other words, Clause 2.2.7 does not assist the 2nd defendant either.
XII. APPORTIONMENT OF LIABILITY BETWEEN THE DEFENDANTS
72. As explained above, the duty owed by the 2nd defendant to the plaintiff was, in the present circumstances, akin to that of an employer. As I have found above, both the 1st and 2nd defendants failed to take sufficient measures to ensure a safe working system, in particular, to ensure that the Safety Warning would be complied with.
73. Mr Chung submits that the 1st defendant should be less responsible because even if the 1st defendant had inspected the Warehouse prior to the execution of the Service Agreement, it would have just discovered the back entrance and the Safety Warning, and such discovery would not have required the 1st defendant to take further measures to ensure the plaintiff’s safety. I disagree; had such discovery been made, the 1st defendant should have at least reminded the plaintiff of the Safety Warning from time to time.
74. As regards the 2nd defendant, it took one step more than the 1st defendant, namely, the 2nd defendant’s posting of the Safety Warning, but this was not complied with and the 2nd defendant did not take any measures to ensure compliance, like the 1st defendant’s provision of the Safety Guidelines to the plaintiff once only and its failure to remind the plaintiff of the same ever since. What makes the 2nd defendant worse is that “Brother Wah” himself used the back entrance for egress.
75. In the circumstances, I find that the 1st defendant should be 40% liable and the 2nd defendant should be 60% liable, primarily because of what “Brother Wah”, on behalf of the 2nd defendant, did and did not do.
XIII. QUANTUM
A. Extent of injuries
76. Right after the Accident, the plaintiff was admitted to the Accident and Emergency Department (“A&E”) of Pok Oi Hospital (“POH”), where he complained of right wrist injury and right knee injury. Tenderness, swelling and bruise were found over his right wrist, and tenderness was found over his right knee. X-ray of his right wrist showed fractures in radial styloid and right scaphoid, and X-ray of his right knee showed neither facture nor dislocation. He was admitted to the Orthopaedics and Traumatology Department (“O&T”) for further management.
77. On 18 April 2018, closed reduction and screw fixation were performed for the factures in his right wrist. On the same day, wrist arthroscopy was performed, and it showed intact intercarpal ligament. The plaintiff was then discharged on 19 April 2018, that is, he was hospitalised for 9 days. He was then followed up in the outpatient clinic of Tuen Mun Hospital (“TMH”). He was also referred to occupational therapy for work hardening program and to physiotherapy.
78. On 26 September 2018, it was recorded that the factures had been healed, and that his wrist range of movement was satisfactory with 80 degrees of dorsiflexion and 80 degrees palmar flexion. He last attended O&T on 7 November 2018.
79. From 4 May 2018 to 7 September 2018, the plaintiff received 13 sessions of treatment including pain modulation, exercise therapy and work rehabilitation at the Physiotherapy Department of TMH. The assessment performed on 7 September 2018 showed, among others :-
(1) Minimal swelling over the right wrist;
(2) Normal skin temperature over the right wrist;
(3) Active range of movement of the right wrist joint was :-
|
Flexion |
60 degrees |
|
Extension |
60 degrees |
|
Radial Deviation |
25 degrees |
|
Ulnar Deviation |
35 degrees |
(4) Active range of movement of the right distal radial-ulna joint was :-
|
Supination |
70 degrees |
|
Pronation |
80 degrees |
(5) The power grip of the right hand was 24 kg, and that of the left hand was 55 kg.
80. Further, from 17 May 2018 to 21 November 2018, he received 20 sessions of treatment at the Occupational Therapy Department of Tin Shui Wai Hospital. The assessment performed on 21 November 2018 showed :-
(1) Active range of movement of :-
|
Right wrist |
Flexion |
75 degrees |
|
Extension |
75 degrees |
|
Radial deviation |
35 degrees |
|
Ulnar deviation |
40 degrees |
|
Right forearm |
Supination |
85 degrees |
|
Pronation |
70 degrees |
(2) Power grip: 42 kgf for the right hand, and 52 kgf for the left hand;
(3) Maximum bilateral lifting (from floor to waist level) was 35 pounds;
(4) Maximum unilateral lifting (from knuckle to waist level) was 20 pounds; and
(5) Maximum bilateral carrying (from knuckle to waist level) was 30 pounds for 5 metres.
81. A joint orthopeadics report was ordered. The plaintiff engaged Dr Chan Sai Keung (“Dr Chan”), while the 1st and 2nd defendant jointly engaged Dr Ho Ching Lun, Henry (“Dr Ho”). They jointly examined the plaintiff on 29 July 2021, and prepared a joint report dated 20 September 2021 (“JOR”). During the joint examination, the plaintiff told the experts that :-
(1) He suffered right wrist pain over the radial, scaphoid, and ulnar aspects of his right wrist, and thenar muscle of his right thumb, with the ulnar side of his right wrist more painful;
(2) His wrist pain occurred spontaneously and may last for half a day. He did not take painkillers for the pain;
(3) The radial wrist pain over the scaphoid was moderate, on and off in nature, but it may disturb his sleep;
(4) His right hand grip was weak. He could carry objects of 8 kg for 1-2 minutes. He had to quit due to hand numbness;
(5) His right wrist would become stiff after writing for 10 minutes, and there was clicking with joint movement afterwards;
(6) He is right-handed;
(7) He could perform all the self-care and hygiene activities like bathing, grooming, eating, dressing and toileting; and
(8) He could travel on public transport.
82. During the joint examination, wrist movement and grip strength were examined. The results were :-
(1) Active range of movement :-
|
Right wrist |
Flexion |
80 degrees |
|
Extension |
80 degrees |
|
Radial deviation |
15 degrees |
|
Ulnar deviation |
30 degrees |
(2) Grip Strength :-
|
Jamar Position |
Right (kg) |
|
I |
18 |
|
II |
27 |
|
III |
22 |
|
IV |
20 |
|
V |
15 |
83. It is fair to say that these results show improvements from the results obtained from examinations done at hospital as set out earlier.
84. X-rays were also taken of the plaintiff’s right wrist during the joint examination. The X-rays showed (1) healed fracture of scaphoid and distal radius of his right wrist; (2) the headless screws for fixation still in situ; (3) non-union of fracture tip of ulnar styloid process of his right wrist; and (4) osteopenic change of his right wrist.
85. Both Dr Chan and Dr Ho agree that :-
(1) There were operative scars over the radial, ulnar and dorsal aspect of the plaintiff’s right wrist;
(2) There was tenderness over the scars on the thenar and ulnar styloid;
(3) The arm girth and forearm girth were the same on both sides;
(4) There was slight decrease in the movement range of palmar flexion, radial deviation and ulnar deviation of the plaintiff’s right wrist;
(5) The right handgrip power was weaker than the left one;
(6) The plaintiff’s fractured right wrist was compatible with the injury mechanism described by the plaintiff’s alleged Accident;
(7) The factures have healed;
(8) The diagnosis is (a) right distal radius facture; (b) right wrist scaphoid facture; and (c) non-union facture of right ulnar styloid process;
(9) There is no pre-existing condition.
86. Dr Chan’s opinion and Dr Ho’s do not diverge significantly in terms of the recovery of the plaintiff’s right upper limb. They both agree that the plaintiff’s impairment in his right hand is permanent, and the removal of the screws for fixation in his right wrist is unnecessary. Further, they both agree that the radial styloid and scaphoid had healed with good alignment, and the plaintiff would not have a higher chance of developing osteoarthritis of his wrist joint.
87. Apparent difference arises from the different focuses of their opinions. While Dr Chan, for the plaintiff, focuses on the weakness and disuse of the plaintiff’s right upper limb, Dr Ho, for the defendants, focuses on the good recovery of the right wrist with good muscle bulk in the right upper limb. That said, both Dr Chan and Dr Ho point out that the bone of the right wrist will become stronger with time with loading of the bone during daily activities. Thus, it follows that even though the plaintiff’s right wrist was weak during the joint examination, as time would have passed by with the plaintiff taking daily activities, his right upper limb should have become stronger than during the joint examination. However, it does not seem that the plaintiff would somehow achieve full recovery.
88. At this juncture, I note that in his evidence-in-chief, the plaintiff alleged that his grip power had weakened since the joint examination, in particular, the grip power of his right hand had decreased to 15 kg only, while a warehouse worker would usually be required to lift 20 kg. There is no further elaboration on this matter in the evidence. I have no evidence as to what test he had undergone to reach this 15 kg result. This weakening also goes contrary to both experts’ agreement that his right wrist should become stronger with taking daily activities. Thus, I do not pay any regard to this piece of evidence in his evidence-in-chief. It remains for me to say that if his right hand had really become weaker as alleged, following from both experts’ such agreement, it was likely to have been caused by the plaintiff’s own failure to do the usual daily activities.
89. Form 7 assessment of the plaintiff’s loss of earning capacity is 2%. Dr Chan’s opinion is that it should be 5%, and his assessment of the percentage of whole body impairment is also 5% “in view of the fact that [the plaintiff’s] dominant hand was affected”. Dr Ho’s assessment of the loss of earning capacity is 2% “as indicated on Form 7” without explanation, and his assessment of the percentage of whole body impairment is also 2%.
90. In my view, although the plaintiff’s dominant right hand has been affected and the effect is permanent, there could still be improvement according to both experts. Further, given that Form 7 assessment should be relatively independent, I would agree that the loss of earning capacity should be 2%. In the circumstances, I would also find that the percentage of whole body impairment is also 2%.
B. Sick leave
91. Sick leave was granted by hospital for the period from 10 April 2018 to 19 February 2019 and from 10 April 2019 to 27 April 2019. This is accepted in Form 7. Dr Chan’s opinion is that the sick leave granted by hospital is appropriate, while Dr Ho opines that sick leave until 19 February 2019 is already sufficient.
92. Sick leave until 19 February 2019 was granted during the consultation on 30 January 2019 at the O&T of the TMH. In the medical notes of the consultation at the Upperlimb Reconstruction Clinic of the O&T on 30 January 2019:-
(1) “Good ROM”, “Residual pain+”, “Weakness+”, “Managed ADL but not full duty” were noted;
(2) “Physio discharge” and “OT discharge” were written down;
(3) It was noted that assessment by the Ordinary Assessment Board (the “OAB”) would take place on 19 February 2019. I note that this date coincided with the last day of the sick leave;
(4) It was recorded that a future appointment at the upperlimb reconstruction clinic would be arranged for 13 March 2019 at 2:30 pm.
93. On 10 April 2019, instead of 13 March 2019, the plaintiff attended the Upperlimb Reconstruction Clinic. Sick leave was then granted until 27 April 2019. In the medicate notes of the consultation at the clinic :-
(1) It was noted that the date of the appointment for assessment by the OAB was 27 April 2019;
(2) It was recorded “nil” under “Future Appointment(s)”;
(3) No more symptoms and ROM were noted as in the notes for the consultation on 30 January 2019;
(4) “physio discharge” was written down.
94. Thus, from the medical notes, one can see no change in terms of the symptoms suffered by the plaintiff from 30 January 2019 and 10 April 2019, and that by 30 January 2019, the plaintiff was discharged from physiotherapy and occupational therapy. The plaintiff also missed the original appointment at the clinic on 13 March 2019. I accept, on balance, Mr Chung’s submissions that the sick leave for 10 April to 27 April 2019 was granted only for the plaintiff to attend the OAB’s assessment, and would otherwise not be necessary.
95. Therefore, I agree with Dr Ho that sick leave until 19 February 2019 is appropriate (roughly 10 and 1/3 months) and the sick leave for 10 April to 27 April 2019 is not necessary.
C. Ability to return to previous job
96. Both experts agree that the plaintiff is able to return to his previous job, although Dr Chan opines that there would be reduction in efficiency in that the plaintiff’s working hours should be reduced and he would need intermittent breaks to ease his right wrist pain. Mr Cheng highlights that from the report, it does not seem that the experts asked the plaintiff how much weight the plaintiff would have to bear if resuming his previous job, and submits that I should form my own view on the plaintiff’s ability to resume his previous job.
97. That there remains residual problem or pain caused by an injury, or less than 100% fit and efficient for the job, does not necessarily mean that the plaintiff could not resume the previous job: see Chan Sze Yuen v Tin Wo Engineering Company Ltd & others, HCPI 427/2008 at §§16-20; Pak Siu Hin Simon v JV Fitness Ltd, HCPI 574/2014 at §77; Cheung Hon Yu v Chun Lee Engineering Co Ltd & another, HCPI 87/2019 at §§119-122. However, in the present case, the plaintiff explains that after the COVID pandemic, the logistics industry has shrunk and thus, the workforce market has become more competitive in that less people are employed and one worker is expected to do more. He uses himself as an example – a forklift driver would be expected additionally to do more and heavier work of moving parcels and the like. To him, because he could not do such additional work as effective as a normal forklift driver, it would be difficult for him to resume his previous job, or put another way, he has become less employable. His evidence in this regard is in my view just common sense. He told this Court that he has not been employed since June 2023 because of his employability. I accept all his evidence here. I do not find any further improvement the plaintiff may have had from stronger bone (see §85 above) would improve his employability significantly given that neither expert has given any opinion on the degree of improvement while both agree that the effect on the wrist is permanent, meaning that there would be no full recovery of the wrist.
D. PSLA
98. I have considered the cases cited by each party cited to me all involving fracture in wrists. I shall set out my view on some of the cases which I think are more relevant :-
(1) The injuries here are less serious than Tsui Kwan Fai v Goldfield N & W Construction Company Ltd, DCPI 97/2006, 24 August 2007 (cited by Mr Cheng), where the plaintiff there also suffered injury to his shoulder and might develop post-traumatic arthritis of his right elbow. In that case, PSLA was awarded at HK$300,000;
(2) Ng Wai Yip v Borich Contracting Limited, DCPI 2222/2007, 30 October 2008 (cited by Mr Chung) bears some resemblance to the present case. In that case, the plaintiff sprained his left wrist, suffered scaphoid facture in his left wrist, was hospitalised for 6 days, with reduction and screw fixation done. Half a year later, the implant was removed. He also attended various sessions of physiotherapy and occupational therapy treatments. He suffered from wrist pain in the end range of motion as well as heavy exertion of the left wrist. The sick leave granted to him totalled 332 days. He was awarded PSLA of HK$200,000. In the present case, I take into account that the wrist in question is the right wrist, and the plaintiff is right-hand dominant, and thus overall, the plaintiff in the present case can be said to have suffered more serious pain and sufferings;
(3) Shrestha Denika v Pizzaexpress (Hong Kong) Limited [2023] HKDC 1542 also bears some resemblance. In that case, the plaintiff slipped and fell, and as a result, she suffered extra-articular fracture of her left distal radius. Closed reduction was performed and short arm slab was given. She was discharged the next day, and was able to return to her previous job as a waitress. She was granted sick leave for 14.25 months. She was awarded PSAL of HK$200,000. In the present case, it is the plaintiff’s right wrist that was injured, and the plaintiff was hospitalised for 9 days, now still with reduction in the range of movement and strength in his right wrist. I find that the injuries in the present case are more serious than those in that case.
99. In the round, taking into account inflation, I find that PSLA of HK$300,000 is appropriate.
E. Pre-trial loss of earnings
100. The plaintiff’s evidence is that his monthly earning prior to the Accident was HK$12,240, based on his income in March 2018. The 1st defendant, the plaintiff’s employer starting from 8 February 2018, agrees. They both agree that this figure should be adopted for the purpose of calculating the pre-trial loss of earnings.
101. Mr Ho submits that one should take into account the plaintiff’s income for the whole period of 12 months (not only February and March 2018) prior to the Accident in line with §65(2) of Practice Direction 18.1, and on this basis, the plaintiff’s income should be HK$1,544 only. Mr Ho’s submissions would be right if the plaintiff would not have any continuous employment as a casual worker does not. However, in the present case, the plaintiff worked pursuant to an employment contract between him and the 1st defendant dated 8 February 2018. The probation of one month had expired by the time of the Accident, and neither Mr Ho nor Mr Chung suggested to any witnesses that the employment contract would be terminated or that the plaintiff’s performance under the contract was unsatisfactory so that the chance of terminating the employment would be significant. In the circumstances, I refuse Mr Ho’s request to take into account the plaintiff income for 2017.
102. Although there was the Chinese New Year in February 2018, in his evidence, the plaintiff accepted that the 1st defendant started sending workers to work at the Warehouse after the Chinese New Year public holiday. However, he explained that he was still on holiday and he had asked his friend to be his substitute. This explanation was not challenged, and that one takes a longer holiday than the public holiday in the Chinese New Year is nothing unusual. I accept the plaintiff’s explanation. This means that in calculating the plaintiff’s income, I should take into account the fact that the plaintiff would indeed earn less during the Chinese New Year period not because his employer did not start work yet but because the plaintiff himself chose to rest from work in the holiday seasons. In this regard, Mr Cheng reminds me of the fact that even for March 2018, the plaintiff also took leave and did not work full-force (putting aside the sick leave caused by the Accident).
103. Doing the best I can on the evidence available to me, I find that the monthly income for the purpose of calculating the pre-trial loss of earnings should be HK$12,240.
104. Given the plaintiff’s residual pain and weakness, I agree with Mr Cheng, who relies on Shek Kam Ching v Po Kee Construction Engineering Ltd and Others [2002] 3 HKLRD 795 at §17 per DHCJ To, that 6 months should be allowed after the appropriate sick leave as I find for the plaintiff to look for new employment. Therefore, the total length of period should be 10 and 1/3 months (being sick leave from 10 April 2018 to 19 February 2019) plus 6 months, totaling 16 and 1/3 months. During this period, the plaintiff received income of HK$3,000. Therefore, for this period, the loss of earnings is HK$12,240 x 16 1/3 x 1.05 – HK3,000 = HK$206,916.
105. This carries the assessment to August 2019 only. The plaintiff’s evidence is that from September 2019 to mid-October 2019, he returned to work as a forklift driver, but left in mid-October 2019 because of his inability to meet the employer’s standard as a result of his right wrist injury. Thereafter, he then started to work for various logistics companies on a part-time basis for 15 – 20 days a month at HK$600 – HK$700 per day until the end of January 2020. Subsequent to that, the number of working days decreased to about 10 days per month because the COVID pandemic had lessened the demand for part-time workers in the logistics field. This evidence is not challenged in cross-examination, and I find no reason to reject it. I therefore make the findings accordingly, and for the purpose of calculation, I take the mid-point of the number of working days being 17.5 days and the monthly income being HK$650.
106. Hence :-
(1) For the period mid-October 2019 till the end of January 2020, the loss should be (HK$12,240 – (HK$650 x 17.5)) x 3.5 x 1.05 = HK$3,178.88.
(2) From February 2020 up till today, the loss should be (HK$12,240 – (HK$650 x 10)) x (49 + 18/30) x 1.05 = HK$298,939.2.
107. The total is HK$509,034.10.
F. Future loss of earnings
108. The plaintiff is now 40 years old. The multiplier should be 18.25 (at 2.5 discount rate: see Table 9, Personal Injury Tables Hong Kong 2019).
109. In his written closing submissions, Mr Ho relies on the statistics published by the Census and Statistics Department produced for the first time in his list of authorities for his closing submissions to say that even the monthly salary of a security guard would be higher than HK$12,240 and thus the plaintiff would suffer no future loss of earnings. That the plaintiff would be able to work as a security guard was not pleaded or suggested in cross-examination of the plaintiff. In any event, there is no evidence to explain why the plaintiff would be able to take up the job as a security guard to mitigate his loss. I do not think that it is open at the closing submissions stage for Mr Ho to raise this point.
110. As found above, the plaintiff has become less employable since the Accident and has not been employed since June 2023. No evidence has been adduced to suggest that there would be improvement in the logistics field such that the plaintiff would be more employable and/or would work more than 10 days per month. Thus, I find it appropriate that the plaintiff would be able to earn only HK$6,500 per month (working at 10 days per month at HK$650 per day as found above).
111. Therefore, the future loss of earnings should be (HK$12,240 – HK$6,500) x 12 x 18.25 x 1.05 = HK$1,319,913.00.
G. Loss of earning capacity
112. Given my findings in relation to the plaintiff’s employability in the competitive logistics field, I find it appropriate to award loss of earning capacity of 9 months of HK$6,500, that is, HK$58,500.
H. Special damages
113. The parties agree that the medical expenses to be HK$4,516 and the travelling expenses to be HK$2,000. For tonic food, the plaintiff claims HK$5,000, but the plaintiff is unable to produce any documentary evidence to substantiate this figure. The 1st defendant puts the plaintiff to strict proof, while the 2nd defendant is prepared to give HK$3,000. Given that the medical expenses are just HK$4,516 only, it appears to me inappropriate to award tonic food at HK$5,000 in the absence of documentary evidence in support. I find HK$3,000 a reasonable amount to award.
114. So, the total for special damages is HK$9,516.
I. Summary
115. In summary, the plaintiff is entitled to the following :-
|
|
Heads of damages |
Amount (HK$) |
|
(1) |
PSLA |
300,000.00 |
|
(2) |
Pre-trial loss of earnings |
509,034.10 |
|
(3) |
Future loss of earnings |
1,319,913.00 |
|
(4) |
Loss of earning capacity |
58,500.00 |
|
(5) |
Special damages |
9,516.00 |
|
(6) |
Sub-total: |
2,196,963.10 |
|
(7) |
Plaintiff’s contributory negligence |
(35%) |
|
(8) |
Sub-total: |
1,428,026.02 |
|
(9) |
Employees’ compensation already paid by the 1st defendant |
(142,591.40) |
|
Total: |
1,285,434.62 |
XIV. ORDER
116. In the circumstances, I make the following order :-
(1) The 1st and 2nd defendant do jointly and severally pay the plaintiff the total sum of HK$1,285,434.62 (with the 1st defendant having already paid HK$142,591.40);
(2) There be interest on general damages at 2% per annum from the date of the service of the Writ of Summons to today;
(3) There be interest on special damages at half judgment rate applicable as at today from the date of the Accident (that is, 10 April 2018) until today; and
(4) There be judgment rate on (1) – (3) above from today until payment.
117. As regards costs of the action between the plaintiff on one side and the 1st and 2nd defendants on the other, I make the costs order nisi that the 1st and 2nd defendants do jointly and severally pay the plaintiff’s costs of this action (including all the reserved costs), to be taxed if not agreed, with certificate for counsel. The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.
118. In relation to the contribution notice between the 1st defendant and the 2nd defendant, I order that the 2nd defendant is entitled to 40% contribution from the 1st defendant in respect of the sums in paragraphs 116 and 117 above.
119. As regards costs between the contribution notice between the 1st defendant and the 2nd defendant, I make a costs order nisi that there be no order as to costs.
|
( Gary C C Lam )
Deputy District Judge |
| Mr Alfred Cheng, instructed by Legal Aid Department, assigned by the Director of Legal Aid, for the plaintiff |
| Mr Francis Chung, instructed by Deacons, for the 1st defendant |
| Mr Leon Ho, instructed by Y C Lee, Pang & Kwok, for the 2nd defendant |
[1] Including Geary v JD Wetherspoon Plc [2011] EWHC 1506 (QB); Evans v Kosmar Villa Holidays plc [2007] EWCA Civ 1003; Trustees of the Portsmouth Youth Activities Committee (a Charity) v Poppleton [2008] EWCA Civ 646; Malcolm v British Columbia Transit, 1988 CanLII 3213; Patenaude v Kamloops/Thompson School District No 73 2003 BCSC 1984 and Mather v Westfair Foods Ltd, 2004 BCSC 449.
|