MOHAMMAD AFZAL v. MAN FUN WA formerly t/a KWONG LEE ENGINEERING CO AND OTHERS

HCPI 1288/2014 &
HCPI 1388/2014

[2019] HKCFI 1958

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1288 OF 2014

PERSONAL INJURIES ACTION NO 1388 OF 2014

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J U D G M E N T

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Introduction

1.  The two present actions were consolidated on 5 June 2015.  The plaintiff (P) essentially claims against the 1^st and 2^nd defendants (respectively D1 and D2) for damages for personal injuries sustained by him in two industrial accidents, the first one allegedly on 2 August 2013 (“1^st Accident”) and the second one allegedly on 3 September 2013 (“2^nd Accident”).

2.  The 3^rd defendant (“Fund Board”) was given leave to intervene in this action and join as a defendant by an order of 17 October 2015.

3.  P was initially legally aided until 4 June 2018 when his legal aid certificates were discharged.  Since then, he has acted in person.

4.  D1 had not filed any acknowledgement of service or any defence and was absent throughout.  At the trial, Counsel Mr Tony Ko appeared for D2 and Counsel Mr Patrick Lim appeared for the Fund Board.

Brief Background

5.  P was born in Pakistan in May 1966 and was 47 years old at the date of the two accidents.  According to him, he came to Hong Kong in 1986 and obtained his Hong Kong Identity Card in December 1986.  He has obtained right of abode and the right to work in Hong Kong.  P had also said he had “experience mainly working as security guard, driver, labourer, waiter and construction site labourer for 29 years prior to the two accidents”.

6.  P’s case was that he was employed by D1 since June 2013 as a general worker on construction sites and was paid HK$600 a day.

7.  D1 was a business registered in Hong Kong on 28 January 1999 and according to its business registration, its business was of “aluminium, iron, metal, stainless steel engineering” and its sole proprietor was a Mr Man Fun Wa (“Mr Man”)[1]. D1 ceased business on 20 December 2013.

8.  D2 was/is a limited company incorporated under the laws of Hong Kong according to its business registration, its business was of “signage works”[2].

9.  ISS EastPoint Facility Services (“ISS”) was at all material times the management company for the Hong Kong Science Park (“Science Park”).

10.  By a letter of award dated 5 November 2012 issued to D2 by ISS (“Letter of Award”)[3], D2 was awarded a contract for “Design and Build for Permanent Structural Steel Frame for Billboard/Banner Hanging Over the Façade of the Car Park Building in the Science Park” (“Works”) As seen in the section 8 of the Letter of Award, the contract sum was HK$1,125,200, which was for respectively (i) Preliminaries (HK$20,000), (ii) Builder’s Works (HK$157,500), (iii) Building Services Works (HK$897,700) and (iv) Contingency Sum (HK$50,000)[4].  Pursuant to the Letter of Award, D2 became and was at all material times the main contractor for the Works at the Car Park Building (“Car Park Building”).

11.  Part of the Works was then sub-contracted by D2 to a company called Ngai Lik Engineering Company毅力工程公司 (“Ngai Lik”). According to D2, it was in early June 2013 that Ngai Lik was engaged. There was a quotation dated 3 June 2013 issued by Ngai Lik to D2 for a contract sum of HK$229,000[5] and the sub-contract works were for 4 jobs:

(i)  Dismantling of aluminium plates at the location where the canvas framework was installed at the site and manhandling [them] back into the vehicle for storage (approximately 135 pieces) – $40,000;

(ii)  Modification and re-installation of the above item (approximately 105 aluminium plates) including stainless steel bolts etc – $96,000;

(iii)  Drilling of holes again and tightening of the bolts for the bottom support (35 pieces and a total of 140 holes) – $68,000;

(iv)  Dismantling of the old on-site canvas framework and spotlight and clearing [them] away – $25,000.

12.  It would appear that Ngai Lik then sub-contracted part of the above the sub-contract works to D1 as there was a quotation issued on 1 June 2013 by D1 (“D1’s Quotation”) to Ngai Lik for the works[6].

13.  D2 had produced a work programme updated to 19 July 2013 (“19.07.13 Work Programme”)[7] and it was D2’s case that Ngai Lik only completed the demolition of the existing aluminium cladding (or panels), or the 11^th item in the 19.07.13 Work Programme, before its withdrawal from the works in late June 2013.  D2 had paid Ngai Lik on 3 June 2013 a sum of HK$41,500 by cheque, and there was a further invoice dated 28 June 2013 from Ngai Lik to D2 for a sum of HK$40,000 for removing around 140 aluminium panels  on the external walls at the site and transport the same to the 9/F of the Car Park Building for storage[8].

14.  It was D2’s case that after the withdrawal of Ngai Lik, D2 then engaged D1 direct.  There was no formal contract signed between D1 and D2, nor there appeared to be any quotation issued by D1 direct to D2.  D1’s Quotation, which was issued by D1 to Ngai Lik, was said to evidence the sub-contract D2 entered into with D1 (“Sub-contract”).

15.  As seen in D1’s Quotation, the works therein consisted of 3 jobs totaling HK$143,000, as follows:

(i)  dismantling of metal frames of the original sign board (from 3/F to rooftop), metal tubes, angle irons, round rods etc – HK$45,000 (“Demolition of Original Frame”);

(ii)  drilling of holes on the main column concrete wall; hole 025mm – HK$50,000 (“Concrete Coring”);

(iii)  installation of 35 tubular metal wall mountings (100x100x10m) – HK$48,000 (“Installation of Brackets”)

(“Sub-Contract Works”).

16.  According to D2, due to D1’s unsatisfactory performance, the Sub-Contract with D1 was terminated orally on 12 August 2013, and another sub-contractor Mr Cheng Man Ching 鄭文清 (trading as Wai Lam Engineering Co) (“Wai Lam”) was engaged as D2’s sub-contractor in place of D1 on 13 August 2013.

17.  It was P’s pleaded case that the 1^st Accident occurred on or about 11:30 hours on 2 August 2013 when he was working on the 1^st Floor of the Car Park Building.  As for the 2^nd Accident, P’s pleaded case was that it occurred at about 13:30 hours on 3 September 2013 when he was working on the 9^th floor of the Car Park Building.  I will go into P’s evidence as to the two accidents later in this judgment.

18.  It was P’s pleaded case the two accidents were caused by (i) the negligence and/or breach of common duty of care, and/or (ii) breach of statutory duties, and/or (iii) breach of the contract of employment, and/or (iv) breach of duty as occupier(s) of the premises on the part of D1 and D2 and/or their employees, servants or agents, and D1 and D2 were vicariously liable for the negligence and/or breach of common duty of care committed by their employees, servants or agents, including but not limited to the “said Foreman”[9].  The “Foreman” referred to in P’s Consolidated Statement of Claim was Mr Man[10].  P also relied on the maxim res ipsa loquitur insofar as applicable to establish negligence on the part of D1 and/or D2[11].

19.  P alleged that he had sustained severe personal injuries as a result of the two accidents.

20.  D2 disputed P’s claims, in particular, that either of the two accidents happened as alleged by P.

21.  In so far as the alleged 1^st Accident was concerned, D2’s case was essentially that the 1^st floor of the Car Park Building was not part of the site for the Sub-Contract Works which was on 3/F to roof top, and further that the removal of the old frame on the façade of the Car Park Building had been completed by 2 August 2013 and so cutting of metal bars from the wall would not have been required on the day of the alleged accident, and also due to the typhoon signal no 3, P could not have been doing the cutting work as alleged.  D2’s case was also that if such cutting work was required, there had been contributory negligence on the part of P.

22.  As for the alleged 2^nd Accident, D2’s case was essentially that as the Sub-Contract with D1 was orally terminated by D2 on 12 August 2013, and therefore on the date of the alleged 2^nd Accident, 3 September 2013, D1 was no longer D2’s sub-contractor and if the work of moving the metal pipes was indeed required, it would have been carried out by the new sub-contractor hired in place of D1, namely Wai Lam.  It was also D2’s case that if P had sustained any injury, such was minor and that P had failed to mitigate his damages.

23.  The Fund Board did not admit either of the two accidents and put P to strict proof on a balance of probabilities that he met with those 2 accidents as alleged by him.

Schedule of Disputed Issues

24.  D2 had prepared a schedule which set out the disputed issues as between P and D2 as follows:

In relation to the 1^st Accident

(i)  Whether any work had to be conducted on 1^st floor of the Car Park Building at all?

(ii)  Whether P was conducting the metal cutting work as alleged?

(iii)  Whether safety goggle were provided?

(iv)  Whether D2 was negligent and/or vicariously liable?

(v)  Whether P was contributorily negligent?

(vi)  What should the quantum of the award to P be, if any?

In relation to the 2^nd Accident

(i)  Whether P was conducting the pipe lifting work on 9^th floor of the Car Park Building as alleged?

(ii)  Whether D2 was negligent and/or vicariously liable?

(iii)  Whether P was contributorily negligent?

(iv)  What should the quantum of the award to P be, if any?

25.  The key issue in relation to both accidents was whether P was able to prove that the accidents happened as pleaded by him.

The witnesses

26.  P had provided a witness statement and later a supplemental one, which will be respectively referred to as his 1^st and 2^nd witness statement.  His friend Sultan Habib had provided a witness statement and further attended trial for cross examination.

27.  D2 had intended to call two witnesses, a Mr Ye Chun Ping also known as Andrew Yip (“Mr Yip”) and a Mr Chan Chi Sing (“CCS”).

28.  Mr Yip was employed by D2 as a technician between the period 2008 until August 2013 and was D2’s on site representative. He had provided a witness statement and also a supplemental witness statement.  However, he failed to attend the trial notwithstanding D2 had issued a subpoena against him.  D2 later applied for leave to withdraw the subpoena and accepted that the witness statements of Mr Yip were not to be admitted.

29.  CCS was at all material times and still is the sole shareholder and director of D2 and he was the only witness who gave evidence for D2 at the trial.

30.  CCS had indicated in his witness statement that D2 would produce at the trial the Notification of Accidents, Record of Interviews, Photographs obtained from Labour Department which D2 had set out in its Supplemental List of Documents.  There had been no objection form P as to the production and admissibility of all such documents obtained from the Labour Department.  

31.  P had produced medical records and reports from various hospitals/doctors in support of his case.  There was no objection as to the production and admissibly of such reports and records.  P did not call any of the doctors involved.

32.  In so far as expert medical evidence was concerned, P and D2 were each limited to one ophthalmic expert and one orthopaedic expert.   P’s ophthalmic expert was Dr Tsui Chung Wan and D2’s was Dr Cheung Sek Hong.  P’s orthopaedic expert was Dr Wong Chin Hong and D2’s was Dr Lee Po Chin.

33.  There was no disagreement between the ophthalmic experts.  As for the orthopaedic experts, there was disagreement in respect of the assessment of impairment, loss of earning capacity and also P’s sick leave.  However, P did not call his own expert Dr Wong and indicated that he had no questions to ask or to cross examine Dr Lee.  D2 decided there was no need to call Dr Lee. 

The 1^st Accident

P’s evidence

34.  P’s pleaded case had seen set out earlier.  His evidence in his 1^st witness statement was that the 1^st Accident took place on 2 August 2013 at around morning at 11:30 hours at 1/F of the “Science Park Building”, and that his duty was mainly concerning the metal bar cutting works at the wall of 1/F.  According to him, he was cutting some metal bars with a portable power driver grinder placed on the 1/F, and that he had to stand on a wooden folding ladder in order to carry out the metal cutting works as the metal bar was located close to the ceiling there and beyond his reach. 

35.  Further, according to P, while he was engaging in the said cutting work, he felt some foreign particles shooting into his left eye, and found a small piece of metal went into his left eye accidentally and he stopped his work immediately.  He called Mr Man whom he called his boss.  On instruction of Mr Man he washed his eyes and was ordered to continue his work, and he also worked on 3, 4 and 5 August 2013.  He had said a few days later, he found his eye injury became more and more serious and he attended the Accident and Emergency Department (“A&E Department”) of Kwong Wah Hospital for medical treatment and was later referred to the Eye Clinic at the Caritas Medical Centre Hospital (“Eye Clinic”). 

36.  During the trial, in photographs shown to him[12], P had pointed out the part of one metal pipe near the ceiling which he alleged he was told to cut. When asked whether the metal pipe was connected to a part outside on the exterior wall, P’s answer was it was inside. 

Medical reports/records

37.  There were the following medical reports/records in relation to P’s left eye injury:

From the A&E Department

(i)  There was a pro-forma medical record form from the Kwong Wah Hospital relating to P’s visit on 5 August 2013[13]; 

(ii)  A subsequent Medical Report issued by Kwong Wah Hospital on 26 November 2014[14];

From the Eye Clinic

(i)  An Out Patient Medical Record issued by the Eye Clinic[15];

(ii)  Medical Certificate issued by the Eye Clinic on 6 August 2013[16];

(iii)  Medical Certificate issued by the Eye Clinic on 7 August 2013[17];

(iv)  A subsequent Medical Report issued by Dr Hui Kin Man of the Eye Clinic dated 23 January 2014.

38.  P’s evidence was that the first doctor he went to see after the alleged 1^st Accident was a private doctor Dr Chiu Sin Chat.  Although P had produced a certificate from Dr Chiu in relation to his consultation on 4 September 2013 after his alleged 2^nd Accident, there was no certificate from Dr Chiu as to (i) when P went to consult him over his left eye injury or the cause of the injury, and/or (ii) the reason for referral to the Kwong Wah Hospital, if P was referred by Dr Chiu.

39.  The Medical Record of 5 August 2013 of the A&E Department was the first in time of any medical record/report in relation to the 1^st Accident.  Although the subsequent Medical Report from that department on 26 November 2014 stated that the P’s left eye injury was “whilst on duty”, there was no record of this in the Medical Record of 5 August 2013, which indicated that:

(i)  P was referred to the A&E Department by a “GP”;

(ii)  Under “Chief Complaint”, it was written “left eye injury at 3 pm today” (emphasis added);

(iii)  Under “History & Examination”, it was written “left eye foreign body at 1500” and “left eye pain” and “tearing”;

(iv)  There were 4 boxes with “Industrial Injury”, “Traffic Accident”, “Non-Industrial Injury” and “Assault”, none of which was ticked;

(v)  Under the section on “Trauma” or “Non-trauma”, the space selected was “Non-trauma”.  In particular, “Industrial” was not selected.

40.  Then under the “Chief Complaint” of the Medical Record of the Eye Clinic of 6 August 2013, it was stated “c/o L eye foreign body injury x 1/7 IOD+”[18], which Mr Lim submitted 1/7 meant 1 day out of the week ie the previous day or 5 August 2013 (which was later stated in the Medical Report issued by Dr Hui Kin Man).  Sick leave was granted from 6-8 August 2013 on the Medical Certificate issued on 6 August 2013 which stated only “left eye injury”[19].  The foreign body was removed on 6 August 2013 and it appeared that P then attended the Eye Clinic again on 7 August 2013 and that it was only on the Medical Certificate issued on that day that  it was stated that P was suffering from “injury on duty left eye corneal foreign body” (emphasis added) and P was granted sick leave from 7-11 August 2013[20].

41.  The Medical Report dated 23 January 2014 issued by Dr Hui Kin Man at the Eye Clinic[21] stated, amongst other things, that P presented to the clinic on 6 August 2013 for left eye foreign body injury “on 5 August 2013 while on duty” (emphasis added) and there was a metallic foreign body on his left eye cornea.

42.  Although the Medical Records and/or Reports would indicate that P did report he suffered his left eye injury whilst on duty, the Medical Record of the A&E Department clearly indicated that the injury happened at 3 pm on 5 August 2013, and not on 2 August 2013 at 11:30 am[22]. Further, whilst the Medical Records and/or Reports stated that the injury was suffered whilst on duty, they did not say that the injury was as a result of an industrial accident which happened at the Car Park Building or the Science Park. 

43.  When cross-examined, P’s response was that he went to the A&E Department with a friend who has now moved to England and that it was his friend who did the translation for P at the hospital and that it could be that his friend was mistaken.  It was never mentioned in P’s witness statements that he was accompanied by a friend to the A&E Department. 

44.  When asked when his friend moved to England, P said he could not remember but 2 or 3 years ago.  Further, according to P, he said his friend spoke to the doctor at the A&E Department in English and that P could not understand what he said.  However, P had stated in his witness statement that after living in Hong Kong for many years he could speak little English and Cantonese although not fluently.  Even though during the trial, P claimed that he could not speak or write English, he seemed to understand Counsel’s question before it was interpreted to him.

45.  As pointed out by Mr Ko, the doctor at the A&E Department must have asked how P got the injury to his eye and if P’s friend told the doctor that P was injured while cutting metal at the Car Park Building, there was no reason why the doctor would not have recorded it.  In any event, there was no record in the Medical Record at the A&E Department that P was accompanied by any one when he attended there on 5 August 2013.

46.  In fact, the doctor must have asked P specifically when the accident occurred since there was a specific time 3 pm stated and that the accident happened the day of the attendance, ie 5 August 2013.  When and how an accident took place must be one of the first questions any doctor would ask.  I do not find it probable that P’s friend (if he indeed had a friend accompanying him) to have got this wrong.  

47.  P attended the A&E Department of the Kwong Wah Hospital because the foreign body in his left eye was causing him pain and tearing.  It seems inherently implausible that P would have waited for 3 days before he sought medical attention.

ISS In/Out Record

48.  In P’s witness statement, he claimed to have worked at the Car Park Building/Science Park on 3, 4 and 5 August 2013 after the 1^st Accident.

49.  D2 had produced the In/Out Record kept by ISS of all workers who attended Science Park from 1 August 2013 to 2 September 2013[23] (“In/Out Record”). Although there was a record of P entering in the Science Park on 2 August 2013 from 1042 to 1743, there was no record of P having worked in the Science Park or entered the Science Park on 3, 4 or 5 August 2013.  

50.  It was put to P that all workers at the Science Park had to produce their Hong Kong Identity Cards on entry each day and be registered and issued with a work permit by ISS at the Management Office and the workers had to wear their work permits during their work hours that day.  P however said that he would normally report at the gate and not at the Management Office.  Further, P’s evidence was that he was living in Mongkok at the time and although he would go to work by train, sometimes Mr Man would drive him and that Mr Man would bring him to work at sites other than the Science Park.

51.  P agreed that each worker had to be issued with a work permit which the worker had to wear during work hours and had to hand back when work was finished for the day.  However, P claimed the work permit was only issued at the gate of the Science Park and that he was not aware that it was the ISS which issued the work permit to workers.  P’s evidence was that if he entered the Science Park in Mr Man’s car which had an “auto pass”, Mr Man would drive him straight to Car Park Building and there would be no need for a permit to be issued to them. 

52.  When it was put to him that if any worker was found by ISS not wearing a work permit, ISS would report the worker for further handling, P disagreed and claimed that when he was working in the Car Park Building, there was no checking as to whether the workers were wearing the work permit or not.  

53.  As said earlier, the In/Out Record did not show that P had entered or had been issued with any work permit on 3, 4 and 5 August 2013.  When asked whether it was his case that he had gone to work in the Science Park on 3, 4 and 5 August 2013, P at first maintained that on 2 and 3 August 2013, he did go to work at the Science Park but then he seemed to waver, and said he could not remember whether he went to work there on 3 or 4 August 2013.  It was also P’s evidence that he went to the Kwong Wah Hospital after he finished work at 5 pm on 5 August 2013 but there was no record that P entered or left the Science Park or was issued with any work permit on 5 August 2013.

54.  In fact, P’s evidence during the trial appeared to be that sometimes Mr Man would drive him to other sites to work.  In the Record of Interview by the Occupational Safety Officer Mr Yeung Chun Ming (“Mr Yeung”) at the Labour Department on 2 January 2014 in relation to the 1^st Accident[24], P had told Mr Yeung sometimes Mr Man would ask him to work at other sites and that on 5 August 2013, he went to work in Kwai Chung[25].

55.  It was quite clear from the evidence that while P was employed by D1/Mr Man, he was directed by Mr Man to sometimes work at other sites in other districts and not necessarily in the Car Park Building or the Science Park.

Notifications of the 1^st Accident and statements to the Labour Department

56.  P had filed more than one Notifications of Accident in relation to the 1^st Accident to the Labour Department.  The 1^st one was on 27 September 2013[26], which was some 7 weeks after the alleged 1^st Accident, and the same date as his Notification of the 2^nd Accident.  The date and time of the 1^st Accident reported by him was 6 August 2013 at 11:30 am,and the place of the accident was reported to be at the Car Park Building, without stating any floor where it took place.  P gave a name Unibright Construction & Engineering Company as the name of his employer, although he did state the contact person to be “Man Wah” (namely Mr Man), and that D2 was the principal contractor.

57.  P then filed another “Notification of Accident” some 16 months later on 22 December 2014 in relation to the 1^st Accident[27].  It was only in this one that he stated that the date and time of accident was 2 August 2013 at 11:30 am, and that his employer was D1.

58.  During the trial, when cross examined about the date in the 1^st “Notification of Accident”, P said it was “Muktar” who accompanied him and filled in the form for him.  “Muktar” is Mr Muktar Mohammed who was at the material times working for P’s former solicitors as an interpreter.  P at first confirmed that Muktar had read the form to him but he later then said Muktar only asked him to sign and that Muktar “cheated” him and P claimed that it was Muktar who wrote down the wrong date for the 1^st Accident.

59.  It was only on 14 December 2013 that Mr Man filed the Form 2 under s 15 of the Employees’ Compensation Ordinance, Cap 282 reporting the 1^st Accident to the Commissioner for Labour[28].  The date and time of the accident was reported to be 2 August 2013, around 1 pm.  Under section D “Description of accident” it was stated that “while cutting metal materials on 3/F of the car park, due to carelessness, iron sands flew into the eye” (emphasis added), and then under section N, as to the type of work performed by the employee at the time of accident, the box ticked was “tubular scaffolding” “通架棚工程”[29].

60.  Thus, although Mr Man reported the 1^st Accident, the report was made some 4 months after the accident.  It appeared from a “Reply Slip” Mr Man sent to Labour Department[30], he had explained he had asked P to see a doctor after the accident and he had paid P during his sick leave and he had no idea that P would lodge a claim.  In any event, neither the number of the floor or the nature of the work reported by Mr Man in his Form 2 was what was alleged by P.

61.  On 7 January 2013[31], P had attended an interview by a Labour Inspector Mr Ng Cheuk-lui (“Mr Ng”) and according to the “Record of Interview”, P had explained that Mr Man never told him the name of his company and he had misunderstood that Unibright Construction & Engineering Company was his employer because he saw a sign at the site of the two accidents and it was only later that Mr Man requested him to amend the company’s name to that of D1.  However what P said in the interview was the 1^st Accident happened on 2 August 2013 when he was making a signboard at the carpark building of T/F Science & Technology Park, Phase 1, Pak Shek Kok, NT at about 11:30 am when he was using a machine to cut metal”[32].  The handwriting of the Labour Inspector Mr N was not easy to read, but from what one can see the reference “T/F” is not clear, but did not appear to be 1/F.  What was clearly written was P had said that the 1^st Accident happened when he was making a signboard.

62.  On 9 January 2014, Mr Man had attended an interview by Mr Yeung at the Labour Department.  According to that Record of Interview, when asked by Mr Yeung whether he recalled that on 2 August 2013 he had asked P to work at the site [at the Car Park Building in the Science Park], Mr Man said he did not remember[33]. When later Mr Man was asked again, whether he himself had attended the site on 2 August 2013 to work, his answer was “應該無” or probably he did not[34].

63.  According to P, he was working alone on 2 August 2013.  There was no evidence that Mr Man was present in the Car Park Building that day.  What Mr Man had reported in his Form 2 would not be from his direct knowledge.  It is also clear there were various inconsistencies in the P’s own Notifications and Records of Interview, in particular in relation to the date and time as to when the eye injury accident took place.  There were also inconsistences between P’s statements and Mr Man’s statements as to which floor of the Car Park Building the eye injury accident took place and the nature of work which was being carried out by P at the time. 

Sultan Habib’s evidence

64.  P’s friend Sultan Habib’s evidence about the 1^st Accident was that he was at the time working as a security guard at night and that he recalled having received calls from P in about early August 2013 asking Sultan Habib whether he would be free on about 11 and 12 August 2013.  According to Sultan Habib, P had told him that he suffered from some injury on 2 August 2013 and was unable to do heavy duty job and was requested by his boss to bring some friends to replace him and that Sultan Habib agreed.  According to Sultan Habib, he arrived at about 8:30 am on 11 August 2013 at the Science Park and was introduced by P to Mr Man and that he then worked as a general labourer from 11-12 August 2013 for Mr Man at the Science Park and during that time, he was told by P that due to the eye injury suffered by him on 2 August 2013, P could only do some light duty work.  Sultan Habib also claimed that Mr Man had told him that due to the injuries suffered by P whilst he was cutting metal bar from the wall, P could not take up heavy duty work and that even Mr Man himself had to be involved in the work with them. 

65.  Sultan Habib was adamant that there should be a record of his working in the Science Park for those two days, but there was only one record in the In/Out Record of Sultan Habib being issued a work permit, which was on 10 August 2013 at 12:11 hours with no departure time, and no records of in or out on any other dates.  When Sultan Habib was asked about this, he maintained he recalled working there on 2 consecutive days.  There was however no record of Sultan Habib having entered the Science Park on 11 August 2013 (a Sunday), nor on 9 or 12 August 2013.

66.  In his witness statement, Sultan Habib stated he received calls from P “in about early August 2012”[35], but it was not clear when exactly he received P’s calls.  Sultan Habib had said he was approached by Muktar to give a statement for P sometime after October 2013.  His witness statement was eventually given in October 2015.  Sultan Habib admitted that he had spoken to P before giving the statement.

67.  Sultan Habib was vague in his witness statement as to when he received P’s calls.  He seemed to be also confused about the dates he had worked at the Science Park.  It seems inherently improbable he would remember the exact date of the accident if he could not recall exactly when P called him or the dates he had worked at the Car Park Building.  In any event, he was not working at the Car Park Building on 2 August 2013 and he had no personal or direct knowledge of what happened or how or when P’s left eye was injured, whether on 2 August 2013 or not and whether during his work at the Car Park Building or not.  In so far as his evidence as to what P had told him, as submitted by Mr Ko, and which I accept, these would amount only to statements made by P, which could be entirely self-serving.

68.  For the above reasons, I do not find the evidence of Sultan Habib would assist P as to whether the 1^st Accident took place on 2 August 2013 as alleged by P.

CCS’s evidence

69.  CCS had explained during the trial that the Works were for demolition of the original advertisement frame and to construct a new one from 3/F to roof.  When shown a photograph of the façade of the Car Park Building[36], CCS had said that no work was undertaken at the floor immediately above the ground floor of the Car Park Building.  

70.  CCS had also referred to the following as evidence that the 1^st Accident could not have occurred on the 1/F, or on 2 August 2013 as alleged by P because there was no metal cutting work and, indeed, any work to be done on the 1/F :

(i)  D1’s Quotation showing the work of dismantling the metal frame for the original sign board was from 3/F to the Roof;

(ii)  The revised schedule of work programme dated 9^th September 2013[37] (“09.09.2013 Work Programme”) showed that the Sub-Contract Works had already progressed to the stage of concrete coring (drilling holes on the concrete walls) by 2 August 2013, and that the previous phase of metal cutting work in relation to the removal of the old metal frames had already been completed;

(iii)  There was a claim made by a car owner whose car was parked on 2/F of the Car Park Building and it was damaged by the debris of concrete on 29 July 2013[38] which also showed that the Sub-Contract Works had already progressed to the stage of concrete coring on 29 July 2013.

71.  Further, CCS had said that cars were parked on the lower floors of the Car Park Building at the material time so it was not possible to do metal cutting work on the 1/F without the risks of damaging parked cars.  (iii) above would also support CCS’s evidence that it would not make sense for any metal cutting work to be undertaken on 2 August 2013 on the 1/F of the Car Park Building, which was open to the public for parking after the 29 July 2013 incident.

72.  So far as the 09.09.13 Work Programme was concerned, it would appear that the scheduled dates for commencement and finish of each item of the works was not quite accurate as seen later in emails between Mr Yip and ISS where Mr Yip had said all coring works were completed 5 days early, which would be on 5 August 2013.  In light of this, the metal cutting works would seem to have been completed even earlier.

73.  There was no proper or reasonable explanation from P as to why there needed to be any work carried out on 1/F of the Car Park Building and/or why the metal pipe under the ceiling of 1/F needed to be cut. 

74.  I find CCS a credible witness and that by 2 August 2013, the Sub-Contract Works had reached at least the concrete coring at 7^th and 6^th floors of the Car Park Building and there should be no work of any kind for D1 on the 1/F, and that there was no business for any workers of D1, namely P, to be on 1/F between 1 and 7 August 2013.  

The weather

75.  According to the record of the Hong Kong Observatory[39], Typhoon Signal No 1 was hoisted at 09:40 to 16:10 on 1 August 2013 and Typhoon Signal No 3 was hoisted at 16:10 on 1 August 2013 to 22:15 on 2 August 2013 (22:15), and further there was a “Thunderstorm Warning” at 9:15 on 1 August 2013 until 20:00 on 1 August 2013, and from 12:45 on 2 August 2013 until 16:45.  As seen in the photographs of the Car Park Building[40], in order to perform the metal cutting work alleged by P, one would have to stand on a ladder just next to the large opening of the Car Park Building. 

76.  Mr Ko submitted that it was extremely unlikely that P would be told to perform the metal cutting work alleged by him on 2 August 2013, given the weather condition that day when it was raining heavily with strong wind.  When P was asked about this, P agreed that it did not make sense and his only explanation was D1 had asked him to do it.  He was not able to explain as to why anyone would have requested P to conduct such work in those circumstances and why P would have agreed to it.

Liability on the 1^st Accident

77.  The burden was on P to prove the 1^st Accident did take place on 2 August 2013 and in the manner as alleged by him.  Having considered all the evidence, and what was said above, I find that there was no sufficient evidence that by 2 August 2013, any work had to be carried out on 1/F of the Car Park Building, let alone the work of cutting the metal pipe as alleged by P.  Further, having considered the Medical Records at the A&E Department and also the Eye Clinic, I am not satisfied that P’s left eye injury was as a result of any accident which took place on 2 August 2013.  It would appear more likely than not, P’s eye injury incurred on 5 August 2013.  However, as there was no record in the In/Out Record that P had worked in the Science Park on 5 August 2013 and in light of his own statement to Mr Yeung[41] that he was working in Kwai Chung on 5 August 2013, I am not satisfied that P was working at the Car Park Building or in the Science Park at all on 5 August 2013, or that if the accident had occurred on 5 August 2013, it occurred at the Car Park Building or in the Science Park.  

78.  Even though D1 was absent throughout, P still had the burden to prove his pleaded case in relation to the 1^st Accident against D1.  In light of all the inconsistencies in P’s own evidence and my findings above, P had failed to discharge the burden.  I do not find there was sufficient evidence that the 1^st Accident happened as pleaded by P.  I find D1 not liable for any breach of duties, whether any duty of care or other duties under common law or any duty under express or implied terms of the contract of employment, or under any statutory duties, or otherwise as pleaded.

79.  Further, although P had previously stated in his “Notification of Accident” dated 2 January 2014[42] and during his interview by Occupational Safety Officer Mr Lee Kai Yip of the Labour Department (“Mr Lee”) on 2 January 2014 in relation to his 2^nd Accident[43] that his direct employer was D2, P’s evidence in his witness statements was that at the material times D1 was D2’s sub-contractor and that he was employed by D1 since June 2013 and received his salary from D1.

80.  The evidence clearly indicated that Mr Man/D1 was an independent contractor running his own business, which was supported by D1’s Quotation.  Mr Ko submitted that D2 is not liable for any breach of duties allegedly committed or owed by D1 towards P.  I accept Mr Ko’s submissions in this respect. 

Contributory negligence

81.  It was D2’s case that if D2 was found liable, then P was contributorily negligent in not using the eye protection goggles on the day of the alleged 1^st Accident. 

82.  Mr Ko had referred to the interview records given to the Labour Department by two workers employed by D1 and working at the Car Park Building at the material times[44] who stated there were eye protection goggles made available in a box at the material times by D1.  When asked about this, P maintained that they were not available at the time of the 1^st Accident and that they were only made available when Labour Department officers went round to inspect the site.

83.  There was an accident report prepared by Mr Yeung dated 29 January 2014 (“1^st Accident Report ”)[45].  In this report Mr Yeung stated that Mr Man and the two workers who were interviewed all stated that there were safety harnesses, safety helmet, eye protective goggles and glasses made for use by the workers at the site, but P claimed he was not provided with goggles for metal cutting work.  It was stated in the report that the discrepancy between them could not be clarified and verified in the case but that should P have worn suitable goggles, the risk of eye injury would be eliminated and he would not be injured.

84.  The difficulty is Mr Man had been absent throughout and the two workers were not called, nor was anyone from ISS called to say whether any of the management staff while patrolling had seen or noticed a box with protective goggles placed at the Car Park Building.  Mr Yip, who was employed by D2, as the representative at the site, had failed to turn up during the trial and his witness statements had not been admitted.  In light of this, I do not find there was sufficient evidence for this Court to make any finding of contributory negligence.  In any event, in light of my findings that P had not proved his pleaded case in relation to the 1^st Accident having taken place on 2 August 2013 and in the manner as pleaded and that neither D1 nor D2 is liable to P as alleged pleaded by P, the issue of contributory negligence does not arise.

The 2^nd Accident

P’s evidence

85.  P’s evidence in his 1^st witness statement was that after his eye injury, Mr Man had contacted him and urged him to return to work.  P said he took some rest and returned to work for Mr Man on 9 August 2013 but most of the time, he could only take up lighter work at the Car Park Building such as cleaning work.

86.  On 3 September 2013, after lunch at about 1:30 pm, P said he was assigned by Mr Man to work alone on 9/F of the Car Park Building and to move some heavy metal pipes lying on the floor for a distance of about 1 meter away in order for that part of the floor area where the pipes were originally to be cleaned. 

87.  According to P, there were 4 square hollow metal pipes (around 2-3 meters long and weighed about 70kg each) lying on the floor at the material times and that he was given to understand that the dimension of those metal pipes was 150mm x 150mm.  He said he had to bend over his back and he was moving those pipes alone without any aid and that while he was moving one of those pipes, he suddenly felt serious pain on his back and unable to stand up.  According to P, Mr Man ordered him to take some rest for a few minutes and to continue his work.  P said he tried to but as a result he experienced serious pain on his back and the following day he was unable to go back to work because of severe pain and stiffness on his back.

88.  In his 1^st witness statement, P had said it was on 4 September 2013 he attended the private clinic of Dr Chiu Sin Chat for medical treatment and was treated with medication and sick leave.

89.  On 6 September 2013, P went to the A&E Department for further treatment and was granted further sick leave, eventually until 18 September 2013.  On 18 September 2013, P attended the private clinic of Dr Keung Chi Wai and he was treated with medication and granted further sick leave until 9 October 2013 when he was referred to the Department of Orthopaedics of Pamela Youde Nethersole Easter Hospital on 10 October 2013 and was later referred to Occupational Therapist and Physiotherapist.  He was then granted sick leave until 25 March 2015.  Thereafter, he said he continued follow up treatment for his back.

Notifications of the 2^nd Accident and statements to the Labour Department

90.  P only filed a “Notification of Accident” to the Labour Department in relation to the 2^nd Accident on 27 September 2013 together with a statement about the 2^nd Accident.  He later gave a further statement to the Labour Department on 26 November 2013 in relation to his employment.

91.  On 2 January 2014, P filed another “Notification of Accident” in relation to the 2^nd Accident[46] and attended an interview by Mr Lee at the Labour Department.  In answer to the question Mr Lee asked as to whether there were other colleagues with him at the time of the 2^nd Accident, P had said he was working alone in the morning and that Mr Man came around lunch time and that he and Mr Man worked together in the afternoon[47] and later when he was asked to describe what led to his injury, P had said that morning at 9am, he was working alone at the 9/F of the Car Park Building as usual and that it was after lunch, that Mr Man returned[48] and said he needed to clean the floor and that they needed to move the metal bars.  P had agreed to the interview with Mr Lee be conducted in Cantonese and P had invited Mr Lee to take the record in Chinese for him.  The contents of that Record of Interview were also read to P afterwards by another officer  before P signed on the record to acknowledge he understood the contents thereof[49].

92.  On 13 January 2014, Mr Man had attended the Labour Department and was also interviewed by Mr Lee.  When asked who outsourced the work to him and when did they give him access to the site and when did he hand over the site, Mr Man’s replies were the works were outsourced to him by D2 and that they (D2) did not mention the access to the site specifically and they informed him when there was work to do.  Then when Mr Man was asked to describe what happened on 3 September 2013, he said that morning, he and P worked in Causeway Bay and that afternoon, they went to the site because Mr Man wanted to clear the floor before handing over the site, and they went to the 5/F for cleaning and that there were two metal bars obstructing the way.  So they moved the metal bars to the wall and continued to clean the floor afterwards[50].

93.  Mr Man had said after they finished cleaning on 5/F, P jokingly said “Hey boss, I got hurt”.  Mr Man said he never thought P was really injured and he joked to P and asked him to see a doctor.  Mr Man said P did not give any response and after that, they “went up to check other floors” to see if there was any place that needed to be cleaned, and that at around 4 pm, he left after finishing all tasks and P also left with him.

94.  Mr Man had also said thereafter he had no other work to do and that P knew that there was no more work for him and that they did not contact each other and it was only in around October 2013 that P suddenly gave him a document saying it was the medical certificate issued by a doctor in relation to his reporting to the Labour Department.  Mr Man said he asked P to visit D2 together to discuss the matter and that right then he received a copy of P’s solicitors letter issued to D2.  According to Mr Man, P had never discussed with him that he was going to report his injury as injury at work[51].  

The ISS In/Out Record

95.  According to the ISS In/Out Record, there were no workers from D2’s side working on the site at all from 13 August 2013 to 28 August 2013.

96.  There was also no record in the In/Out Record of P and Mr Man entering or leaving the Science Park on 3 September 2013[52].

Sultan Habib’s evidence

97.  It was Sultan Habib’s evidence in his witness statement that at about end of September 2013, he saw P walking with a stick and P told him he was involved in another accident and injured his back while working at the Science Park on 3 September 2013.  Sultan Habib’s witness statement was given in October 2015 and for the same reasons given earlier in relation to the 1^st Accident, I do not find Sultan Habib’s evidence would assist P’s case as to whether the 2^nd Accident took place on 3 September 2013 as alleged by P.

CCS’s evidence

98.  It was CCS’s evidence that due to the progress of the Sub-Contract Works being carried out by D1 was unsatisfactory, he decided to terminate the Sub-Contract with D1 verbally on 12 August 2013.  CCS had referred to the email dated 28 August 2013 from ISS to D2 stating that there were no workers of D1/D2 working on the site from 13 August 2013 to 28 August 2013[53]. Further on 13 August 2013, as mentioned earlier, D2 entered into another sub-contract with Wai Lam and, D2 had applied for new working permits of the site from ISS for Wai Lam’s workers, who started to work at the site on 2 September 2013.  CCS said to the best of his knowledge, P was not one of the workers hired by Wai Lam and without the new work permit, it was impossible for P to resume working on the site on 3 September 2013 as alleged by him.  There was also no reason for P to have to move any metal pipes on the site after Wai Lam took over the sub-contract works on 2 September 2013.

Whether D1’s Sub-Contract was terminated by CCS verbally on 12 August 2013

99.  In P’s 2^nd witness statement, he had disagreed with Mr Yip’s  evidence that D1 no longer assigned any workers to the site after 12 August 2013 and according to P, the cleaning work still went on until after the 2^nd Accident[54]. In response to CCS’ evidence, P had said he had no idea as to when the D1’s Sub-Contract was terminated and if it was really terminated but he maintained that there were workers on the site until the time of the 2^nd Accident and that he had worked with and for D1 on the day of the 2^nd Accident[55].

100.  CCS had given 3 reasons for saying that progress of the Sub-Contract Works carried out by D1 was unsatisfactory, namely:

(i)  D1 was told to take measure to protect the site in the course of concrete coring works but D1 failed to do so properly which led to the incident mentioned earlier about a car being smeared by debris from coring works on 29 July 2013 and the car was then not cleaned properly by D1 which led to scratches to the car.  As a result, D2 had to pay HK$8,500 to the car owner;

(ii)  D1 had only one or no worker at the site to carry out the Sub-Contract Works during the period from 2 to 9 August 2013 which delayed the progress of the works;

(iii)  D1 was required to measure the size of the poles after coring and bracket installation but that had not been done timely by D1.

101.  Item 13 of the 09.09.13 Work Programme indicated that the original sign board was demolished by 20 July 2013 and that the installation of electrical works and also the concrete coring at 9/F were completed by 27 July 2013.  The concrete coring from 8/F to 5/F were completed by 10 August 2013 and on–site installation of brackets were to take place on 12 August 2013 to 21 August 2013[56].

102.  According to CCS, D2 ordered the fabricated metal brackets and its delivery was originally scheduled on 5 August 2013 and that the on-site installation would not have commenced before 5 August 2013. However, due to the typhoon signal no 3 from 1-2 August 2013, the scheduled date of delivery was delayed and that the brackets only arrived at the site on 6 August 2013.  D2 had produced copy of a delivery note of “iron bars” and “iron sheets”[57] dated 6 August 2013[58], as evidence that brackets were only delivered on 6 August 2013. 

103.  The evidence indicated that there were complaints by ISS that there was delay in the Works.  On 5 August 2013, ISS had sent an email to Mr Yip and others stating that according to their In/Out Record from 3 to 5 August 2013, there were no workers from D2’s side arriving at the Car Park Building for the installation of the structural steel frame for the billboard banner[59]. Mr Yip replied on 6 August 2013 pointing out that according to the agreed Work Programme, all coring works were to be completed on 10 August 2013 and that installation of the brackets was to commence on 12 August 2013.  Mr Yip in the email explained that D2 had not yet been paid for the first instalment of the contract sum by ISS, but notwithstanding this, D2 had continued with the programme and had completed all coring works 5 days early but as the brackets could only be delivered on 6 August 2013 to the site due to the typhoon, installation would commence on 7 August 2013[60].

104.  Thus by 5 August 2013, all coring works had been completed.  As seen in the delivery note dated 6 August 2013, the iron bars and iron sheets (and/or brackets) were received by Mr Man at the Car Park Building.  Thus, it would appear that installation work of the brackets probably did commence on 7 August 2013 as stated in Mr Yip’s email of 6 August 2013.  Anyway on D2’s Answers to P’s Interrogatories, D2 stated that at the moment of termination, D1 had completed the coring works and bracket installation.  One of CCS’s complaints against D1 was that D1 failed to measure the size of the poles after coring and installation of the brackets, it thus would appear that on D2’ case, by 12 August 2013, the brackets had been installed except that they had to be adjusted, and this can be seen in the sub-contract with Wai Lam.

105.  D2 had also produced a cheque dated 30 July 2013 for a sum of HK$50,000 to D1[61] but with D1’s name wrongly written.  The amount appeared to be transferred later on 2 August 2013 to D1.  There were no other copies of cheques produced by D2 which were issued to D1 and it was not clear how other payments were paid to D1 by D2 but there was no evidence that D1 had not been fully paid.  

106.  The sub-contract with Wai Lam dated 13 August 2013 stated that the sub-contracted works were 4 tasks, namely (i) adjusting the brackets; (ii) soldering chamfers and bracings; (iii) adjusting the aluminium cladding and (iv) installing steel frame banner and the consideration was HK$200,000[62].

107.  On 30 August 2013, D2 had issued a cheque of HK$70,000 to  Wai Lam as a deposit[63]. Further, D2 had issued a cheque dated 3 September 2013 for HK$500 (HK$50 x 10 permits) to the Hong Kong Science and Technology Parks Corporation to pay the deposit for the new working permits to 10 of Wai Lam’s workers[64].  It was stated in the Workers Permit Application Form that the work site was from 6/F to Roof of the Car Park Building and the period was from 2 September 2013 to 28 October 2013[65].

108.  It was CCS’s evidence that it was not until 21 September 2013 that the steel frame were transported to the site and it was only after the arrival of the steel frame that Wai Lam and its workers could start the installation.  Another lot of the steel frames were transported to the site on 29 September 2013.  On 27 September 2013, D2 had paid a further HK$70,000 to Wai Lam as 2^nd instalment of the sub-contract sum[66]. On 15 October 2013, D2 had paid another HK$30,000 to Wai Lam[67].

109.  That there were complaints by ISS to D2 over the scheduled programme of the Works can be seen in ISS’s emails and that there were no workers from D2’s side on site from 3 to 5 August 2013 and from 13 to 28 August 2013

110.  Further, there were complaints about the site safety by ISS to D2.  This was probably due to the incident earlier mentioned, that while D1 was conducting the concrete coring works, a car was smeared by debris from coring works on 29 July 2013 and that a police report was made by the car owner on 30 July 2013. 

111.  P had in his Closing Submissions submitted that as D1 was absent throughout, there was no evidence from D1 as to whether D1’s Sub-Contract with D2 was terminated by CCS and further due to the absence of D1, and there was no chance for P to cross examine D1 regarding the truthfulness of the termination of the Sub-Contract.

112.  However, P had the opportunity to cross examine CCS and he had asked CCS questions about other matters but none concerning the termination of D1’s Sub-Contract on 12 August 2013.

113.  There was also an accident report issued by Mr Lee on 12 June 2014 in relation to the 2^nd Accident (“2^nd Accident Report ”)[68].  It was stated in this report that according ISS, there were no entrance records of Mr Man and P on 3 September 2013 and that “it could be explained that their tasks had been officially completed on that day and they did not have any working relationships with [D2] and Mr Kwan since”[69].  “Mr Kwan” referred to therein was Mr Elvis Kwan of ISS.

114.  Having considered all the evidence, it would appear that all the Sub-Contract Works would anyway have been completed by D1 not long after installation of brackets started on 6 August 2013 and more probable than not there would be no further work for D1 by 12 August 2013.  I find CCS’s evidence credible and I accept his evidence that on 12 August 2013, D1’s Sub-Contract was verbally terminated by D2 and there was no further work for D1 thereafter.  Thus there was no further contractual relationship between D1 and D2 after 12 August 2013.

115.  This however would not necessarily mean that D1 would not or could not have returned to the site after 12 August 2013.

Whether P and D1 attended the site on 3 September 2013

116.  Even though CCS had said that D1’s Sub-Contract had been verbally terminated on 12 August 2013, and that the sub-contract with Wai Lam was entered into on 13 August 2013, there was no sufficient evidence that D1 had to “hand over” the site to D2 on 12 August 2013 or on any day.  In fact, in D2’s Answers to P’s Interrogatories, D2 stated there were no post-termination financial, administrative work, or handover arrangement with D1. 

117.  The cheque for the 1^st instalment of HK$70,000 for the sub-contract with Wai Lam was only given by D2 to Wai Lam on 30 August 2013.  CCS had said in his witness statement that Wai Lam’s workers started to work on 2 September 2013.

118.  Even though D2’s cheque for HK$ 500 for the 10 permits for Wai Lam’s workers was dated 3 September 2013, it would appear that D2 had applied for the work permit for Wai Lam’s workers prior to 30 August 2013 and that the application form had stated that the dates for the works were from 2 September 2013 to 28 October 2013. 

119.  According to the In/Out Record, there were 5 workers recorded as arriving at 1326 and leaving at 1846 on 2 September 2013 under the “company name” of D2 and the “working floor and location” was not easy to discern but appeared to be 5/F to 9/F.  One of the 5 workers appeared to be Mr Cheng himself of Wai Lam.  Then on 3 September 2013, two of the 5 workers were recorded as arriving at 0902 and leaving at 1839/1840[70].

120.  Having said this, the In/Out Record for 3 September 2013 showed only about 8 entries, and did not seem to be complete. 

121.  Notwithstanding this, it would appear that Wai Lam’s workers already had work permits on 2 September 2013, and it was Wai Lam’s workers who appeared in the afternoon that day and 3 September 2013, two of Wai Lam’s workers were recorded to be at the site full day. 

122.  There was no record of P or Mr Man having attended or leaving the site on 3 September 2013.  Mr Elvis Kwan of ISS had attended an interview by Mr Yeung on 16 January 2014 and Mr Kwan was asked whether it would be possible for any worker to enter or leave the Science Park without being registered by ISS, Mr Kwan had answered it was possible but unlikely as ISS would have colleagues patrolling within the Science Park and when a worker was found to be without the work permit issued by ISS, the colleague would immediately report to his/her superior for follow up[71]. 

123.  In the 2^nd Accident Report, Mr Lee had also reported that Mr Elvis Kwan said that ISS did not have any entrance records of Mr Man and P on 3 September 2013.  There was no evidence that Mr Man had kept any record of his own as to the date when P had injured his back.

124.  I accept the ISS In/Out Record was not complete.  There was also no evidence as whether there would be registration of cars entering the Science Park or their drivers and/or passengers.  Mr Kwan had in his interview informed Mr Lee that it was possible for workers to enter without being registered.  Having considered all the evidence, I find that it was not impossible that P and D1 could have entered the Science Park after 12 August 2013 without being registered by ISS.

125.  However, I do not find there was sufficient evidence that they had gone back to the Science Park on 3 September 2013.  The evidence was Mr Man said he had not taken it seriously when P complained he hurt his back when moving the metal pipes and it was in about October 2013 that Mr Man was given the sick leave certificates and P’s report to Labour Department by P and it was possible that Mr Man got the alleged date of the 2^nd Accident from P’s report and statement to the Labour Department.

126.  It was stated in the 2^nd Accident Report that Mr Man received the metal pipes from the supplier on behalf of the sub-contractor few days before the accident[72].  According to the delivery invoice, those metal pipes were delivered on 6 August 2013 and I thus find that even though the 2^nd Accident could have taken place in the Car Park Building, there was no sufficient evidence that it took place on 3 September 2013.

127.  Further, as said earlier, the In/Out Record showed registration of workers from D2/Wai Lam entering the Science Park to work at on 2 and 3 September 2013.  As Wai Lam’s workers were working there already on 2 September 2013, it would seem more probable than not that the site would have been cleaned and handed over, if such was required, before 2 September 2013.

128.  P and Mr Man had also given different accounts as to accident.  P said there were 4 metal pipes on 9/F and that he had to move those pipes alone without any aid and he sprained his back when he moved the 3^rd metal pipe and that Mr Man witnessed his injury and asked him to see doctor after having rest.  P said he then went to see doctor after work that day.  Mr Man however told the Labour Tribunal that he and P were cleaning the floor on 5/F when they saw two metal pipes and that the two of them moved them together and they were not particularly heavy and that he thought P was joking when P said he was injured and Mr Man had told him in a casual tone to see a doctor.  According to Mr Man, they then worked as usual and after finishing all their work, left the site at around 4 pm.

129.  In P’s statement to by Mr Lee on 2 January 2014[73] he said that he visited the doctor at Tai Kok Tsui the same day after the injury after resting a while and that the doctor gave him 2 days’ sick leave and on 6 September 2014, he went to the A&E Department at Kwong Wah Hospital[74].  During the trial, P said as he then had difficulty moving after the injury, D1 had to drive him to Mongkok.  He called his friend after arriving in Mongkok, and his friend then accompanied P to see Dr Chiu Sin Chat at Tai Kok Tsui.  Thus P’s evidence was that he went to see Dr Chiu on 3 September 2013.

130.  However, according to the medical report prepared by Dr Chiu[75], P visited him on 4 September 2013.  When cross-examined as to whether Dr Chiu got the date wrong, P said that it was P himself who got it wrong, and that P did not visit Dr Chiu on the same day of his injury.  

131.  As pointed out by Mr Ko, had P really been injured on 3 September 2013 at around 1:30 pm (and it was P’s case that he had never experienced any back pain/problem before) and had he gone to see Dr Chiu immediately afterwards, it would be inconceivable that P would have made such a mistake.  Further, P did not go to the A&E Department at Kwong Wah Hospital until 6 September 2013 13:45 pm.   

132.  As reported by Mr Lee in the 2^nd Accident Report, there were discrepancies about the circumstances of the accident as provided by P and Mr Man.  In fact, after considering the information provided by P, Mr Man and Mr Kwan of ISS, as well as environmental data collected during the visits, Mr Lee found that the information from Mr Man and Mr Kwan were more consistent with each other and more reliable[76]

133.  P’s latest evidence during the trial that he had difficulty moving after the injury and that D1 had to drive him to Mongkok was a completely new version and was even inconsistent with his own previous evidence or his evidence in his witness statements.  I do not find P a credible or reliable witness at all.  I do not find there was sufficient evidence that the alleged 2^nd Accident took place on 3 September 2013.

Liability on the 2^nd Accident

134.  The burden was on P to prove on balance of probabilities that the 2^nd Accident happened as alleged by him.  As said, I do not find P a credible or reliable witness and I reject his account of the accident, I do not find D1 liable for negligence or any breach of duties whether common law or statutory, as pleaded by P.

135.  As said earlier, D1 was an independent contractor. I have found that the Sub-Contract had been terminated on 12 August 2013.  In any event, D2 is not liable for any negligence or breach of duties allegedly committed by D1 and as pleaded by P.

Contributory negligence

136.  It was D2’s and D3’s pleaded case that there was contributory negligence on part of P in that P attempted to lift the metal pipes on his own without seeking assistance and in stooping and bending his back to lift the metal pipe, he had failed to follow the training he had received on manual lifting.

137.  I do not find there was sufficient evidence on contributory negligence.  In any event, as I have found neither D1 nor D2 liable as pleaded by P, the issue of contributory negligence does not arise.

Conclusion on liability

138.  I find that the doctrine of res ipsa loquitur pleaded by P has no application in these proceedings.  In light of all above said, I find D1 and D2 not liable for any negligence or breach of duties, as pleaded by P, in relation to the two accidents.

139.  For completeness, I will also deal with quantum.

Quantum

140.  P is now 53 years old.  He is not working and has been receiving CSSA since May 2015 and is now receiving $11,000 per month in total.  In P’s Revised Statement of Damages, he claimed as follows:

(i)	PSLA for both his left eye and back injuries	$550,000
(ii)	(a) Pre-Trial Loss of Earnings & Loss of MPF from date of accident to June 2014	$15,600 x 24 months x 1.05 = HK$393,120
	(b) Pre-trial partial Loss of Earnings and Loss of MPF, based on $9,000 per as an office assistant or security guard as per Dr Wong opinion	$15,600 − $9,000 x 17 months x 1.05 = HK$117,810
(iii)	Loss of Earning Capacity	$150,000
(iv)	Future Loss of Earnings & MPF	$1,567,641
(v)	Medical Expenses for consultation/ medical fees	$5,000
(vi)	Travelling Expenses	$5,000
(vii)	Nourishing and Tonic Food	$5,000

On P’s average monthly income

141.  P’s daily wage was $600 + 5% MPF.  P alleged that he worked 26 days a month on average.  However, according to Mr Man’s statement to Mr Lee on 13 July 2014, P was only a part time worker for him and he would pay P every day or every two or three days[77].  I agree with Mr Ko it was extremely unlikely that P could be fully occupied on all working days and every Saturday every month.  I accept what was submitted by Mr Ko, a more realistic assessment would be he worked around 18 days on average per month, with monthly earning of about $10,800.

On the eye injury

142.  As seen in the Joint Ophthalmological Report, the experts were in agreement that P had fully recovered from the foreign body injury to his left eye and that he should be able to return to his pre-accident work as a general labourer after the expiry of his sick leave on 14 August 2013.  The experts further agreed the corneal wound healed satisfactorily with a residual scar in his left eye, which has caused a mild reduction of vision.  P was assessed to suffer from 1.5% impairment of the whole person[78].

143.  In light of the above, I find that P’s eye injury was a minor one and that there was no sufficient evidence of his complaints set out in paragraph 17 of his Revised Statement of Damages.  In my view, P was well capable of returning to his pre accident job after 14 August 2013.  As said earlier, his daily wage was HK$600 + 5% MPF, totaling HK$630 per day.  He was on sick leave from 6 August 2013 to 14 August 2013. According to P, there were 10 days of sick leave.  I find at most only 8 working days in between (including Saturday 10 August 2013 and excluding Sunday 11 August 2013), which was what was stated in the Joint Orthopaedic Report.

144.  On PSLA, for minor corneal scarring, Mr Ko had referred this Court to Sen Hem Pratap v Hang Yue Engineering Limited, DCPI 131/2010 (unrep, 1 February 2012) and submitted HK$50,000 was reasonable. I accept his submissions.  As for Medical Expenses for consultation fees and medical fees, all the receipts produced by P were in relation to his 2^nd Accident. There was none in relation to the 1^st Accident.  There were also no evidence or receipts for travelling or nourishing food.  As seen later for both accidents, I would allow an overall sum for $5,000 for medical expenses, $2,000 for travelling and $1,000 for tonic food.  I find the quantum of general damages for the eye injury to be :

Item	Quantum
PSLA	$50,000
Pre-trial loss of earnings and MPF $600 x 8 days x 1.05 = $5,040	$5,040
Loss of earning capacity	Nil
Future loss of earnings and MPF	Nil
Total	$55,040

On the back injury

145.  As seen in the Joint Orthopaedic Report[79], both P’s expert Dr Wong and D2’s expert Dr Lee were of the view that P had recovered satisfactorily[80].

146.  On the issue of whether P could return to his pre-accident job, Dr Wong opined that “He has recovered satisfactorily as seen on the video clips and during this assessment …  he is at high risk of for the aggravation and worse of his low back symptoms and signs should be return to his previous work at the constructing site … he would be more suitable for alternative jobs which do not demand repeated exertion and movement of his back such as petrol station attendant, shop assistant or security guard[81].”  However, Dr Lee opined that P was able to return to his pre-accident job with mild impairment in work efficiency and change of occupation was not necessary on medical grounds[82].

147.  In P’s Revised Statement of Damage, he accepted that if he managed to secure a job as an office assistance or as a security guard he would earn a monthly salary of HK$10,000.

148.  Mr Ko submitted that Dr Wong did not in fact disagree with Dr Lee’s assessment that P was able to return to his pre-accident job.  Mr Ko further submitted that all those alternative employment would also involve prolonged standing and walking.  In any event, the pre-accident work was installation and dismantling of steel and metal frames from external walls of a building and tools included electric drills and hand held electric grinders and did not appear to involve heavy duty manual work.  I find there was no sufficient evidence that P was not able to return to his pre-accident job and in any event, there was no sufficient evidence of any loss of future earnings.    

149.  Both experts agreed that P has been suffering from pre-existing degeneration to his back[83]. In particular, Dr Lee opined that “With the natural progression of the degeneration, coupled with the stress and strains associated with his occupation as a construction site worker as well as other events in life, it is likely that [P] would develop pain in his back similar to what he had after the subject injury in about 5 to 7 years time, even if the subject injury on 3^rd September 2013 had not taken place”.  Dr Lee later clarified in the Supplemental Joint Report that “the 5-7 years is to be counted from the time of the accident” (ie Sept 2013)[84].

150.  Mr Ko referred this Court to Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 and submitted that the present case would fall into the third scenario referred to in that case, and that an allowance would have to be made.  I accept this.

151.  Based on Dr Lee’s evidence, P would develop the back pain he is experiencing within 5-7 years of September 2013.  He was aged 47 at the time of accident and his back symptoms would emerge by the time he is aged 52-54.  Mr Ko submitted that a 2/3 discount is appropriate in the circumstances, given that the effect of the 2^nd Accident was to accelerate the emergence of the symptoms by 5-7 years. 

152.  Mr Ko had referred the Court to 6 cases namely: - Shek Kam Ching v Po Kee Construction Engineering Ltd [2002] 3 HKLRD 795; Cheng Liu Nei Su v Clare Environmental Services Limited, DCPI 842/2008, 30.07.09; Tam Kwok Man v The Kowloon Motor Bus Co (1993) Ltd, HCPI 755/2001, 11.07.03; Lee Yuk Lan v Royaltelle International Ltd, HCPI 187/1995, 05.08.99; Chair Sai Sui International Country Club, HCPI 522/1988 26.40.99, and submitted that a starting point of $150,000 would be reasonable, and applying a 2/3 discount, PSLA should be HK$50,000.  Having considered those cases, I accept his submissions.

Sick leave

153.  P was granted sick leave from 4 September 2013 to 10 September 2014 and from 3December 2014 to 25 March 2015, about 17 months.  He was assessed to have 3% and 10% loss of earning capacity respectively by the Medical Assessment Board of the Labour Department on 4 September 2014 and 5 March 2015.  P continued to complain of pain.  

154.  Dr Wong opined that the sick leave granted was appropriate, but Dr Lee opined that 4 months of sick leave was appropriate[85]. 

155.  During the trial, P was cross-examined on the surveillance videos (taken on 2 June 2015 and 25 June 2015) showing him walking down long flights of staircase at normal pace while talking on the mobile phone, without holding on to the handrail and without the need of support from the stick.     

156.  I find what was seen in the video was inconsistent with the serious symptoms P alleged in his witness statement made in October 2015[86]. P had clearly exaggerated his condition.  Mr Ko submitted that Dr Lee’s opinion should be preferred and 4 months sick leave is appropriate.  I accept this and find 4 months would have been reasonable.

157.  I thus find the quantum for the general damages for the back injury would be: -

Item	Quantum
PSLA	$100,000
Pre-trial loss of earnings and MPF $10,800 x 4 months x 1.05	$45,360
Loss of earning capacity (on no loss of future earnings)	$100,000
Future loss of earnings and MPF	Nil
Total	$245,360

Special damages

158.  According to Mr Ko, the receipts for medical expenses only totalled some $2,575.  Allowing that some receipts might not have been kept by P or lost by him, I would allow in total $5,000 for medical expenses for both accidents.  I find that some travelling expenses would have to be incurred by P for visits to hospitals and I would allow $2,000 for this item for both accidents.  As for nourishing and tonic food, I would allow $1,000 as proposed by Mr Lim.  Thus, the special damages would amount to a total of $8,000 for both accidents.

Conclusion

159.  For reasons set out earlier, P has not been able to prove on a balance of probabilities D1’s and D2’s liability, as pleaded by P.  In the circumstances, his claims are hereby dismissed. 

160.  Costs to follow the event, and P is ordered to pay the costs of the D2 and the Fund Board, including all costs reserved, to be taxed if not agreed.