IP KIT LEUNG v. CHAN SZE LAM trading as WANG CHUN ENVIRONMENTAL PROTECTION DEVELOPMENT COMPANY

DCPI 732/2022

[2025] HKDC 1253

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 732 OF 2022

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BETWEEN

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JUDGMENT

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1.  This is a personal injuries action where the pleaded issues are (1) whether the alleged accident happened as pleaded (“Issue 1”); (2) if so, was the defendant (“D”) negligent (“Issue 2”); (3) was the plaintiff (“P”) contributory negligent (“Issue 3”); and (4) causative damage (“Issue 4”). Counsel Mr Raymond Tsang acted for P. Counsel Mr Acorn Lau acted for D. Both counsel had been helpful and I thank them for their assistance.

2.  The trial took 4 days. At the end of the fourth day, I reserved judgment. This is my judgment.

3.  In gist, for the reasons set forth below, I dismiss the action and order P to pay costs to D on a full indemnity basis. In my view, whatever injuries P suffered on the material day (26 March 2019), they were caused by P’s own actions, as opposed to a breach of duty on the part of any other person. There was no negligence on the part of D either so P’s claims are (and had always been) doomed to fail.

The Witnesses

4.  Three witnesses gave live oral evidence. They are: -

(1) P;

(2) D; and

(3) Mr Lee Luen Wing (“Lee”).

5.  The principles on the assessment of evidence are well-known and had been succinctly summarized by myself in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§§10 to 19, DDJ Kenneth KY Lam). As I shall elaborate below, I found the evidence of P unreliable and, unless it was against P’s own interests or supported by other evidence, I do reject the same. By sharp contrast the evidence of D and Lee was relatively reliable and is accepted by me as representative of the truth.

P’s Evidence

6.  P made witness statements and adopted them on oath. In gist, P said that on 26 March 2019, he suffered injuries whilst at work. P’s work was to operate an excavator. The excavator, with him inside, fell sideways into a pit. P climbed out of the excavator and jumped. P got injured in the process and was sent to a public hospital. That was the evidential basis on which P’s Counsel repeatedly described the accident as one involving two stages, namely (1) the excavator’s fall into the pit (“Stage 1”); and (2) P’s climb (“Stage 2”)[1].

7.  Whilst being cross-examined under oath, P said many things, including repeatedly admitting his own negligence during Stage 1 or Stage 2 in these words: -

“問：…當時你都知㗎嘛，係咪呀？即係愈近個坑，其實個地理環境係愈斜嘅，你知㗎嘛？

答：知㗎。

問：係囉？咁所以既然你都知嘞，咁基於你頭先個答案嘅話，咁應該就係--你應該都會同意，其實你當時有入後波，往愈斜嘅地方，其實都係一個十分魯莽或者疏--即係疏忽嘅行為喇，係咪呀？

答：係唔知咁近個坑邊囉。

問：喀，但係你知道愈褪後就愈近個坑邊喇，係咪？

答：係。

問：咁所以其實當時候向後行嗰個嘅做法呀，都十分魯莽、疏忽㗎喎，係咪呀？

答：魯莽、疏忽？疏忽啫。

問：唔，明白，好。咁喺咁樣嘅基礎之下，都比較--即係忽視咗自己嘅安全喎，同唔同意呀？

答：同意吖。”[2]

“問：…其實你當時咁樣嘅選擇喇… 選擇去向後行駛呢… 係做事十分魯莽、疏忽㗎喎，同唔同意呀？

答：疏忽囉，係。”[3]

“問：…你自己都十分之魯莽、疏忽喎，咁樣做法，同唔同意呀？

答：同意吖。

問：唔，忽視咗自己嘅安全喎，同唔同意呀？

答：都同意。”[4]

“問：…呢一個嘅做法呢明顯係不合理不合邏輯喇同唔同意呀？

答：同意。

問：… 十分魯莽、疏忽喇，同唔同意呀？

答：魯莽喇都係。

問：… 都係忽視咗自己嘅安全喇，同唔同意呀？

答：同意。”[5]

“問：…你呢個說法呢其實係… 非常之唔合理嘅… 甚至乎可以話都幾荒謬嘅，同唔同意呀？

答：同意。

問：亦都係十分之魯莽、疏忽喇，喺咁樣嘅情況底下都唔嘗試去嗌--以任何方式去嗌救援，同唔同意呀？

答：同意。”[6]

“問：…即係你違反嘅規條係有數項規條喇，即係唔止違反咗一個規條喇，同意嘛？

答：同意。

問：…你呢一系列嘅違反規條嘅守則呢--守則嘅規條呢，係一個魯莽、疏忽嘅行為，同唔同意呀？

答：係疏忽囉。

問：…違反守則嘅規條愈多呢，咁即係嗰個疏忽或者個嚴重程度就愈大，你同意嘅，你記唔記得今朝有咁嘅答案？

答：係。

問：唔，咁所以既然喺--而家有數項違反呢個守則嘅規條喇，咁所以嗰個魯莽、疏忽程度都係比較嚴重㗎喎，同唔同意呀？

答：幾項？

問：數項喇，你起碼同意咗都有--起碼都有八、九項，你係同意係有違反嘅行為喇，起碼八、九項規條嘞你係同意嘅，即係你唔同意嗰啲我都--我都冇計落去嘞，你同意嗰啲大概都有八、九條嘞，咁你同唔同意你喺咁樣嘅情況底下，你案發當日都係--個疏忽都係比較嚴重呀？

答：係。”[7]

8.  Despite being competently represented, P struggled to explain his bizarre behaviour or evidence, both of which wholly unsatisfactory. By way of examples, P said these under oath: -

“官：第97頁係你自己嘅證人供詞，最頂係第11段，你睇第三行吖，「本人在別無選擇的情況下打開駕駛艙的門」，呢個係咪錯㗎？因為你有選擇一，打999；選擇二，打畀被告吖嘛。

答：係。

官：咁所以你話「別無選擇」係咪錯㗎？

答：係吖，應該。

官：係嘅？咁點解錯都寫落去嘅？

答：當時一來又驚，又冇--搵唔到個電話個袋呀嗰啲，唔知跌咗去邊。

官：咁或者我哋唔好講個電話喇，...

答：唔。

官：...講第三--嗱，選擇一，打999；選擇二，打畀被告；選擇三，學大律師話齋，絞低個窗嗌救命囉，喀，咁都係一個選擇嚟㗎嘛？咁呢個就唔使搵嘢㗎，你會望到嗰個窗--嗰個絞窗嗰個位㗎嘛，即係你--你唔會唔識開窗㗎？

答：係。

官：喀，咁所以打開個窗大嗌都係選擇嚟㗎嘛，咁你話「別無選擇」係咪錯㗎？即係撇除電話先，我哋唔好講個電話喇...

答：係。

官：...絞低個窗嗌救命都得㗎？咁「別無選擇」係咪錯嘅呢？

答：一來嗰個地方嘈喇，啲--啲車--啲車呀，個人距離又遠囉，冇諗住嗌囉。

官：冇諗住嗌我理解，但係係咪一個選擇嚟㗎？即係你可以有選擇，但係選擇唔做㗎嘛？即係譬如你一陣間1點鐘食晏，你可以選擇去大快活又可以選擇去Salted Pig，中餐又得西餐又得，你有兩個選擇㗎嘛？你可以選擇去食第一間嘅，咁但係有選擇吖嘛？點樣選擇另外一件事吖，但係唔係冇選擇，唔係話成個西灣河得一間餐廳吖嘛？你去太安樓㧻串燒都得㗎嘛？咁所以選擇係咪好多㗎？你話「別無選擇」係咪錯㗎？我唔明點解你寫「別無選擇」囉。

答：唔。

官：即係你可以選擇唔做但係唔代表個選擇唔存在㗎嘛？

答：係。

官：係囉，咁點解係「別無選擇」呢？係咪錯㗎？

答：係囉，應...

官：係嘅？咁點解錯又寫喺度嘅？

答：係囉。

官：即係我唔明呀，所以問你呀，我要確保自己理解證供正確㗎嘛。

答：係。

官：我唔明點解「別無選擇」呢四個字喺度，你可唔可以解畀我聽點解？

答：即係當時諗--諗唔到--諗唔到咁多樣，都有--都係--又搵唔到個電話，又驚魂未定，咪所以自己走--走出--行--行出去機外，望到都冇人埋嚟救援，咁咪--咪寫「別無選擇」囉。

官：咁但係你諗唔諗到有呢個選擇，同埋客觀地有冇選擇，都唔同㗎喎？即係譬如西灣河有幾多間餐廳我冇數過吖，咁但係我知道多過一間㗎嘛，咁我冇諗過可以食中菜就一件事吖，唔代表我冇食中菜嘅選擇㗎嘛，咁所以係咪都係錯㗎「別無選擇」四個字？即係你當時可能冇諗過，例如我唔知太安樓有串燒食，咁唔代表太安樓冇串燒食，係代表我冇諗過啫，咁個選擇喺度㗎嘛？咁所以「別無選擇」係咪錯㗎？

答：而家--而家咁睇就係錯喇，寫--寫錯咗囉。”[8]

“官：...我想你睇最底第16段吖，呢度你就有提過「此外，陳斯霖或被告人並沒有給予本人對講機等通訊工具，好讓本人與其他在場的同事溝通」，咁你提緊通訊工具吖嘛，咁所以個議題就喺度嘅，但係你講到好似你係冇能力同人通訊咁樣，咁係咪--唔好話你講大話咁衰喇，係咪最低限度有個好重要嘅遺漏呀？你話你冇對講機，但係又唔講你有電話，咁你咪誤導緊法庭囉？你有冇解釋點解有個咁重要嘅遺漏吖？淨係識講冇對講機，唔講埋有電話，好似唔係好公平喎呢個講法，係咪呀？

答：係吖，係，冇諗住要...

官：明唔明我講咩呀？

答：明白。

官：係囉。

答：冇諗住要講--電話都要寫埋落去。

官：講緊通訊工具喎，點解唔講電話呀？電話係通訊工具嚟㗎嘛？

答：係囉。

官：我就係唔理解囉，即係你講得通訊工具，即係你知你要提通訊工具同埋提通訊喇，咁但係又唔講個電話喎，咁你係咪--即係有兩個可能性嘅，誠實地遺漏，或者不誠實地隱瞞，咁係邊個呀？你誠實地遺漏，定不誠實地隱瞞，定係有第三個原因係冇講到電話㗎？

答：遺--遺漏咗寫--寫個電話。

官：我知遺漏咗--唔係，你聽清楚，我知遺漏咗，不誠實地遺漏，定係誠實地遺漏先？

答：不誠實？唔係呀。

官：即係誠實地遺漏嘅？

答：係遺漏咗寫--寫落去囉。

官：係，咁原因呢？唔寫個原因係咩呀？

答：咁--咁冇問到我要寫低，我咪冇寫，冇講到囉。

官：個情況就好似--譬如我問你…「頭先一點到兩點半有冇食飯呀？」，咁你就答「冇食飯」，但係其實你食咗麵喇，食咗pizza喇，食咗麵包喇，食咗粥喇，係只係冇食白飯啫，咁你算唔算講大話呢吓？即係如果係咁樣呀，你明唔明呀？

答：明。

官：冇食飯，但係有食麵，但係就唔使講後半橛嘅，淨係話「我冇食飯呀，真係冇食飯吖嘛，有食麵喎，三碗����」咁樣，咁你呢度咪咁樣囉？冇通訊工具，喀，但係又唔講個電話，咁技術上係咪講大話都好，係咪唔係咁啱呢？

答：咁忘記咗要寫呢啲電...

官：忘記咗？

答：...電話。

官：咁如果大律師結案陳詞嘅時候話「咩嘢忘記呀？『通訊工具』四個字好清楚喇，你根本就係不誠實地講大話，刻意隱瞞」，...

答：係。

官：...「咁所以我不應該採納或者信納你任何嘅證供」，咁你有咩回應吖？

答：冇諗住話要寫低呢個電--要寫低有--有電話㗎嘛，普通常人個個都有電話㗎喇。

官：哦，即係個議題冇諗過？

答：喀。

官：明白…”[9]

“官：先唔好理可能性先，呢個處理咗喇，問咗喇。更大嘅問題係，點解冇講過你點跌嘅？第97頁第11段，完全冇提「左手著地」呀，咩嘢「pat pat著地」呀，「跌前、跌後」呀，完全零討論… 點解嘅？… 呢個人身傷亡案件嚟㗎嘛，唔係講緊毀約，唔係講緊誹謗吖嘛，講緊人身傷亡吖嘛… 點樣受傷係成件案最重要嘅地方嚟嘅… 譬如你傷左手定傷右手，咁可能個賠償金額差好遠㗎嘛，如果你右䟬、左䟬嘅話… 咁所以你邊隻手落地，喺人身傷亡案件入面係絕對係最重要㗎喎，咁你連邊隻手落地都冇講，又冇講左手，又冇講右手，直情冇講手，點解呢？人身傷亡案件嘅證人陳述書，竟然係冇提點樣受傷，唔係好明喎，你有冇解釋點解可以係咁樣嘅？

答：冇問到咁細--細緻囉。

官：你自己識講㗎嘛？譬如你話左手好痛咁樣，...

答：係。

官：...咁你都應該覺得左手落地呢個係重要嘅嘢要講喇，冇講個「手」字嘅？點解嘅？有冇解釋？

答：（沒有可聽到的回答）

官：即係我唔明呀...

答：喀。

官：...我唔明就要問㗎嘛，如果唔係我理解錯咗就判錯案㗎喇嘛…

答：我知。

官：有冇原因？有我而家就要知，有就要而家就要講畀我知，有冇原因成份證人供詞冇講咩左手著地呀，咩嘢pat pat著地呀，全部冇提，點解？

答：冇問到我囉，個口供。

官：咁你自己識講㗎嘛，係咪呀？唔使人問㗎喇，受傷過程喎？點解唔講呢？即係先唔好理有冇人問你先喇，點解你唔主動講？

答：冇諗住咁細緻問得。

官：最重要嘅部分嚟㗎喇好明顯係...

答：係囉。

官：...你個受傷過程喎，你而家就係要問人攞錢，就係因為你受傷吖嘛，咁點樣受傷唔係最重要咩？點解可以呢樣嘢都冇諗過，反而走去講埋其他九唔搭八嘅嘢呢？

答：誒...

官：即係如果有個原因嘅，我要知囉，如果冇嘅，咁你話「冇原因，解釋唔到」咁陳詞就--大律師任佢哋噏咩喇，咁但係如果你有個原因嘅，我而家要知㗎喎，係，有冇原因㗎？

答：冇。

官：冇？

答：係。

官：好，明白，謝謝你…”[10]

D’s Evidence

9.  D was P’s employer. D made witness statements and adopted them. In gist, at the material time, D was physically absent as he went out to buy lunch boxes. D thus did not see what happened. D reiterated he had carefully checked P’s experience and credentials before hiring him, and D left it to P to exercise P’s professional judgment. P was licensed to operate the excavator. By the material time, P had been working on the exact same site for about 37 days, and P knew all P had to know. In the circumstances, D took the view that what happened must be P’s own fault.

10.  Whilst being cross-examined under oath, D said many things, including these: -

“答：我覺得我自己已經係用盡能力去令到我個工地係安全嘅… 你後面個窿… 係你自己喺度掘嘅… 你個窿喺邊… 全世界最清楚就係你… 唯一嘅合理嘅解釋… 你根本就入錯波。”[11]

11.  D accepted his witness statements were far from perfect[12], but was adamant that did not mean the accident was D’s fault.

Lee’s Evidence

12.  Lee was P’s co-worker. He left D’s employment since August 2023 and retired[13]. Lee made a witness statement and adopted it. Lee was at the site but did not see Stage 1. Lee heard a very loud noise which caused him to look towards P. Lee saw Stage 2. Importantly, Lee said he shouted at P and told P he should not jump from height. P acted against his advice and jumped. It was P’s jump which caused the injury[14].

13.  I found Lee’s evidence most reliable since he was independent of D and had no real motive to lie. I accept Lee’s evidence as the truth.

Issue 1

14.  In the Statement of Claim (“SoC”) filed by P on 29 May 2023, which was drafted by solicitors assigned by the Director of Legal Aid, the accident was alleged to have occurred in this manner: -

“… The Plaintiff was not provided with any communication tool such as walkie-talkie. As there was no sign of assistance at the vicinity and being left with no option, the Plaintiff climbed out of the cabin of the Excavator via the cabin door and stood on the undercarriage of the Excavator. As the Plaintiff was trying to step down onto the muddy ground level from the undercarriage of the Excavator, due to slippery condition, the Plaintiff fell onto the ground.”[15]

15.  The plea above was utterly false or at least misleading because the truth was (1) P, by his own admission under oath, had a fully functional mobile phone with him and P could have used it to seek help; (2) P, by his own admission under oath, had plenty of options and did not have to climb out of the cabin at all; and (3) on Lee’s evidence which I accept as the truth, P did not slip but had jumped from height by choice when P clearly did not have to.

16.  So the short answer to Issue 1 is that no, the accident certainly did not happen in the way as pleaded, but was the result of an unreasonable and unwise choice on the part of P himself.

Issue 2

17.  On Issue 2, the short answer is that whilst the work conditions provided by D to P could not be said to be perfect that was neither here nor there as the law did not demand perfection. The law only required D to act reasonably and D had done so. When it came to operating the excavator at the site, P was the most experienced and most qualified person. There was no objective necessity for D to hire a less experienced person to supervise a more experienced person. Any submission to the contrary would be just as absurd as to say a law firm partner should somehow be supervised by an unqualified trainee, or to say a Michelin-Starred chef should be supervised by a waitress with no real cooking experience, or to say a bus-driver should somehow be supervised by someone who never passed any driving test. In my judgment, D acted reasonably, or at least sufficiently, and there was no negligence.

Issue 3

18.  P, by his own admission under oath, was plainly negligent. It would be bizarre to call P’s negligence “contributory” negligence because P was the only person who had been negligent. P acted grossly negligently by driving the excavator backwards towards a pit for no valid reason, and then jumping out of the excavator, again for no valid reason. P by his sole negligence hurt himself. I find P’s actions utterly unreasonable[16].

Issue 4

19.  It follows from the above that Issue 4 did not even arise since without a breach of duty, there could be no “causative” loss. For the sake of completeness, however, I should demonstrate I have duly considered the parties’ submissions, which were interesting.

20.  Mr Raymond Tsang, Counsel for P, drew my attention to the old English Court of Appeal judgment in Sayers v Harlow Urban District Council [1958] 1 WLR 623, which was about a lady locked in a toilet who injured herself whilst trying to escape, and invited me to conclude the facts of that case bore “some resemblance” to those in this case[17]. Whilst I fully appreciate Counsel’s effort, with respect I could see no resemblance. The main difference was the one I pointed out to Mr Tsang, in these terms: -

“….we are not in 1958; we have mobile phones now. This case was decided in 1958 and, in 1958, if you are stuck in a toilet and you do not have a mobile phone, you cannot call anyone. I think mobile phones were not invented back then… the lady actually tried to shout and wave. Your client didn’t. So does that make a difference?”[18]

21.  In my view, the fact that P had a mobile phone with him which he could have used to call for help made a material difference – it was most unreasonable for P to have chosen to jump from height in the circumstances he found himself to be in. The point was not so much whether a ladder of some sort was coming, or whether firemen could have brought useful tools to assist. The point was that if P had called other people or waited for other people to arrive at the site to help, those other people could help protect P from injuries, such as by catching P if he fell or by holding a ladder steady by group effort[19].

22.  Mr Raymond Tsang, Counsel for P, then drew my attention to the more recent judgment in Clay v TUI UK Ltd [2018] EWCA Civ 1177 [2018] 4 All ER 672, which we discussed in Court during Mr Tsang’s oral closing[20]. In Clay, the appellant’s injury was suffered when he fell from a balcony in Tenerife, where he had gone on a package holiday booked with the respondent. The appeal was dismissed by the majority. Kitchin LJ (as Lord Kitchin JSC then was) in the majority said these (§104 onwards): -

“…In my view the judge carried out precisely the evaluation that the law requires… these members of the family were in no direct danger… there was no emergency… and he found that Mr Clay’s action in climbing over the balustrade and putting his weight on the outside ledge constituted a strikingly new and independent act such that it became, in law, the effective cause of his injury… He found, in substance, that the actions of Mr Clay eclipsed the wrongdoing of the defendant and constituted a novus actus interveniens. Put another way, his injuries were the result of the risk to which he exposed himself. That is a conclusion which was properly open to him upon the evidence and it is one with which we should not interfere. For these reasons.. I would dismiss this appeal.”

23.  In my view, the analysis in Clay was a lot more helpful. Like the scenario in Clay, P in our case was in no immediate danger of any kind and he clearly should have simply sought help, or waited for help. Jumping from height in P’s scenario also “eclipsed” the acts or omissions of others and the injuries suffered by P were just the result of the risk to which P had exposed himself. It is my finding that there was just a single effective cause of P’s injuries, and that single effective cause was P’s own acts. I am most surprised P saw fit to commence or prosecute this personal injuries action when it must be clear to P that he caused his own injuries, and that no other person could be blamed for them.

24.  For completeness, I should also mention I considered all other cases cited to me, including the judgment of DDJ Gary CC Lam in Sit Kan Tat v World-Class Talent Limited [2024] HKDC 420[21]. Whilst those cases must have been correctly decided on their own special facts, with respect I do not find any of them of assistance in our present scenario. Our present scenario is a clear case of P harming himself by his own unreasonable and unwise acts. No person other than P should be held legally responsible for P’s injuries. In my view, these matters are fact-sensitive so that other cases decided on their own facts simply do not assist[22].

Quantum

25.  Had I been wrong on liability, I would have awarded no more than HK$50,000 for PSLA. I would have rejected P’s assertion that prior to the accident he enjoyed playing snooker, as he failed to produce a single sheet of paper which showed that to be the case and, when asked about this by me, P gave no acceptable reason for that failure[23]. I would have adopted the figure of HK$22,200 per month for pre-trial loss of earnings (26 March 2019 to 26 August 2019). P clearly could have returned to work soon after the accident had he been minded to – his injuries were most minor. Given P’s advanced age – P was born in October 1956 – there should be no further loss of earnings and no loss of earning capacity to speak of. I would have dismissed P’s claims for special damages, given the lack of particulars and the woefully inadequate disclosure[24]. The total final award would therefore be smaller in sum then the HK$298,652 already received by P via DCEC 542/2021[25], which means this action would still have to be dismissed with costs. P’s prosecution of this action was and still is a regrettable waste of public funds.

Conclusion

26.  For the reasons set out above, this action is dismissed. Costs should follow the event.

27.  On a nisi basis, I order P to pay all costs of the whole action, including all costs previously reserved, to D, the quantum of which is to be taxed on the full indemnity basis with Certificate for Counsel if not agreed (“the Order Nisi”) primarily on the basis that in my view, it must be clear to P from the very beginning that he caused his own injuries, and this action should never have been commenced. P wasted D’s costs, precious judicial resources, and public funds managed by the Director of Legal Aid. Having considered the well-known CFA authorities of (1) Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004) 7 HKCFAR 114 and (2) Commissioner of Inland Revenue v Poon Cho Ming John (No 2) (2020) 23 HKCFAR 74 [2020] HKCFA 2 on indemnity costs, this is an appropriate case for P to be held liable for costs on an indemnity basis. As the Chief District Judge stated in Khan Asaf Nawaz v Secretary for Justice [2023] HKDC 605, an indemnity costs order is never to meant to punish P and will not entitle D to recover more costs than he had incurred but given how deplorable P’s commencement of this action was, such an order would “achieve a fairer result” for D, in the sense that D would at the very least be out-of-pocket to a lesser extent.

28.  Unless a party takes out a summons within 14 days from today to vary the Order Nisi, the Order Nisi shall become absolute without further order.

29.  P’s own costs shall of course be taxed in accordance with the Legal Aid Regulations. In case this is relevant, I do hereby record my view, as I previously mentioned on 17 April 2025[26], that each Counsel did a most competent job in this matter. Mr Raymond Tsang, in particular, should not be blamed for how things went.

Final Remarks

30.  I thank Mr Raymond Tsang, and Mr Acorn Lau, for their most able assistance.