LO WAI CHEONG v. PUI KEE STEVEDORE CO LTD AND ANOTHER

HCPI 1119/2015

[2018] HKCFI 485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1119 OF 2015

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DECISION

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THE APPLICATION

1.  This is the hearing of a summons taken out by the 2^nd defendant for leave to adduce an ergonomics expert report on the following issues –

a. What posture the plaintiff was required to adopt when performing the container lifting operation whilst sitting in the Crane in accordance with the 2^nd defendant’s container handling operation procedure;

b. Whether the 2^nd defendant’s container handling operation procedure was safe and within the requisite standard;

c. The ergonomic evaluation and assessments of the Chair [on which the plaintiff sat when operating the crane] having considered the execution of the plaintiff’s duties at the time of the accident, i.e. the container lifting operation;

d. Whether the design of the Cabin has attributed to the accident to the plaintiff;

e. Whether the posture adopted by the plaintiff could have caused the accident;

f. Whether the installation of a suitable safety belt would have reduced/minimized the injury to the plaintiff;

g. Whether the installation of camera/electronic visual system inside the Cabin would have assisted the plaintiff to execute his job; and

h. Whether there is any other issue that the expert considers relevant within his expertise.

2.  The plaintiff objects to the application.  His counsel Mr. Sham submits that there is undue delay in taking out this application and if the application is allowed, there would be further delay and prejudice to the plaintiff.  Further, the report is of no probative value and should not be admitted. 

3.  Initially the plaintiff also argues that ergonomics is not a known or recognized expertise.  This objection has been withdrawn before the hearing when Mr. Li, counsel for the 2^nd defendant produced a judgment by Mr. Justice Cheung (as he then was) given in Lai Wah Wai v Castco Testing Centre Limited, HCPI 422/1995 when ergonomics expert evidence had been admitted by this Court.

4.  The 1^st defendant takes a neutral stance and makes no submission.

THE LAW

5.  The law as to when expert evidence may be adduced is trite.  It must be necessary, relevant and of probative value to the determination of an issue by the trial judge.  Both counsel refer me to the decision of Mr. Justice Bharwaney given in Fung Chun Man v Hospital Authority & Anor, HCPI 1113/2006.  It is clear that expert evidence “is admitted only if it is likely to be of real assistance to the determination of the issues.”  And if the Court can come to an informed decision without the expert evidence, the expert evidence while capable of influencing the decision may still be excluded. 

6.  I do not think there is dispute between the parties on the applicable legal principle.  I would also add a reference to the judgment of Madam Registrar Au-Yeung (as she then was) given in Kam Hing Trading (HK) Ltd v The People’s Insurance Company of China (HK) Ltd & Anor, HCA 1062/2008 -

“5. Accordingly, before taking out the Summons, the questions set out in section E of the timetabling questionnaire (and see paragraph 20 of Practice Direction 5.2) must be considered. The parties should then set out the proposed expert directions in the Summons covering 4 main aspects:

(i) The field of expertise required;

(ii) The name of the expert;

(iii) The subjects or issues which the expert should give his opinion on; and

(iv) Whether a single joint expert should be appointed.

8. With regard to (iii), defining the issues which the expert should give his opinion on will prevent lengthy reports addressing different issues.  The Summons should not just state that the expert should give evidence on e.g. the loss suffered by the plaintiff as pleaded in the statement of claim.  Pleadings can be lengthy and the expert should not be left to define for himself the questions he needs to answer.  Rather, the parties should endeavour to agree on a list of issues for the expert.  Such issues should preferably be framed as “yes or no” or “multiple choice” questions. The issues should be included in the Summons (and ultimately the Order).  The expert can then provide his opinion around the framed issues.” [my emphasis]

7.  While the decision is given by the learned Registrar in a Civil Action, the principle may be adopted in PI cases.  This is what I have stated in my earlier decisions given in PI cases (including Wong Giles v Donowho Simon Christopher & Anor HCPI 1046/2014) that for expert evidence on liability, it is important for the applicant to set out the issues for expert opinion when applying for leave to adduce such evidence.  Further, the learned Registrar considered the pleaded facts of the parties in deciding whether expert evidence should be allowed.  I agree that it is on the basis of the pleaded case of the parties that this Court is to consider if the expert evidence is relevant and of probative value.  

8.  Further, the 2^nd defendant may adduce a short preliminary report from the expert to justify the need of such opinion.  While without leave, the 2^nd defendant has obtained a full report from Professor So, the ergonomic expert they intend to instruct.  They are obtaining the report at their own risk of the same being rejected.  But for today’s purpose, I am prepared to treat the report as a preliminary comment or report by the expert for my consideration if a full report would be helpful.  Mr. Sham agrees with my approach. 

9.  In accordance with the above principles, I have to consider whether the Issues, or some of the Issues to be commented by the expert would be helpful to the trial judge by looking at the pleaded case of the plaintiff and the defendants.  I would start with the pleaded case of the parties and the evidence introduced so far.

THE CASE OF PLAINTIFF

10.  I shall first set out the accident leading to this claim and how the plaintiff pleads his case in the Statement of Claim.

11.  It is not disputed that the plaintiff was employed by the 1^st defendant as a gantry crane operator.  At the material time, the plaintiff was instructed to work inside the cabin (“the Cabin”) of a gantry crane no. 604 (“the Crane”) at Terminal 6 of Hongkong International Terminals (“HIT”).  According to the witness statement of Mr. Tsui, a manager of the 2^nd defendant, the 2^nd defendant run or operated Terminal 6 at the material time.  The 1^st defendant provided crane operators for the 2^nd defendant, including the plaintiff, to operate the cranes at Terminal 6.

12.  It is the case of the plaintiff that he was only required to work 8 hours a day according to his contract with the 1^st defendant.  But he was habitually required to work 12 hours shift on each working day.  On the day of accident, 28 January 2013, the plaintiff was assigned to work from 8:00 a.m. to 8:00 p.m. to operate the Crane.

13.  I note that paragraph 4 of the Statement of Claim set out how the plaintiff got injured on the date of accident.  Paragraph 4(c) of the Statement of Claim said the Crane was one of the earlier models of rubber tyred gantry crane.  The plaintiff claimed that some crane operators had negative feedbacks on these cranes, including delayed response, unsteadiness of speed/movement, inaccuracy in positioning, unstable performance, frequent mechanical problem, subject to more shock, shake and choke motions existed during operation, seat installed inside the cabin for the use of crane operator provided less shock absorbing capacity.

14.  Pausing here, one would wonder the purpose of pleading some negative feedbacks from crane operators.  If these are factors leading to the accident, it should be set out in the particulars of negligence in subsequent paragraphs, which I shall come to shortly.  It is sufficient to note that this is not clear and I would explain further.

15.  Paragraph 4(d) gave further details on the problems of these early model cranes and discussion among crane operators.  Paragraph 4(e) described that given the Cabin is high above the ground, it would swing/shock/choke during the crane operation (when lifting or lowering the containers) and the motion would be aggravated by weather say wind, and other operation movement.

16.  Paragraph 4(f) explained that the floor of the Cabin was made of glass and transparent.  But if the plaintiff was to adopt an upright sitting position, he would not be able to see the view below.  It was very common that the plaintiff had to lean his body forward or move sideways to ensure a clearer/unobstructed view of crane, spreader and container beneath him.  And by keeping such an awkward posture, it had inevitably asserted extra pressure to the plaintiff’s physique and created higher risk of injury.

17.  I do not intend to recite all the paragraphs on the daily work schedule and the problem that the plaintiff and/or other crane workers are facing.  A first reaction to paragraphs 4(d) to (i) is that they are information on the operation of the cranes.  It is not clear on how they are related to the alleged accident.  Further, if they are background, these paragraphs could be covered by witness statement.  It is trite that evidence should not be pleaded in pleadings.  It only makes the readers including the defendant difficult to prepare their case.  And this has a bearing on why the defendant asks for leave to introduce expert evidence which I would explain further.  Anyway, I would ask Mr. Sham to reconsider these paragraphs if they should be amended, and the subsequent paragraphs which I am coming to.

18.  Paragraphs 4(k) to (o) set out how the accident happened.  In summary, on the day of accident at around 4:30 p.m. to 5:00 p.m., the plaintiff was working inside the Cabin.  The light was dimmed but he could not turn on the lightings as he had been instructed not to turn on the spot light until the sun went down. 

19.  The plaintiff also complained that the glass floor of the Cabin was dirty, blur and unclear such that he had to exert increasingly more effort to move around to gain a clearer vision below.  He had to move the container up and down to match the correct position, and by lifting the container, the Cabin would swing/shake/wobble.  He also had to raise his body slightly forward to get a clear vision.  At the same time, he had to manage the control rods.

20.  After remaining in the complained position for 3 to 4 minutes, the plaintiff started to feel pain at his lower back.  He completed his duties and found his back seriously painful and had to rest for 10 minutes and could not continue with the work.

21.  The Statement of Claim continues with how he went to hospital which is not relevant to this application. 

22.  I move on to paragraph 5 of the Statement of Claim which set out the particulars of negligence to see if it helps to give a clearer picture of the case of the plaintiff.  A total of 22 heads of particulars of negligence have been pleaded.  As one of the PI Masters, it comes to my notice that in the past few years, some solicitors acting for plaintiffs have a habit of pleading all forms of particulars from the book of precedents without considering if the particulars are relevant to the particular case of the plaintiff.  A failure to recognize the duty would create lengthy pleading, and call for additional evidence, and wasting of costs and valuable time of this Court.  I read recently an old judgment by the then PI Judge Mr Justice Seagroatt given in Chan Shiu Wah v Wu Kwok On HCPI 1123 of 1997 when he commented that –

“Very, very few solicitors show competence in pleading cases – either as Statements of Claim or as Defences. They seem to direct themselves to complicating the events and the issues in as prolix and indigestible a form as possible. It may be that the length of their pleadings is intended to serve a particular purpose but it is not clear what that is. Many explain that they draw down an omnibus precedent from a computer and try to adjust it to fit the particular case. This is not a pleading. Proper, sensible and effective pleading is a skill or art. I rarely see examples of that.”

23.  Unfortunately, the position has not been improved. I raise my concern during the hearing.  Mr. Sham has diligently conceded that some particulars are not necessary and should be withdrawn.  (To be fair to Mr Sham, he is not the drafter of the Statement of Claim).  There is a lot to comment on the drafter of this Statement of Claim.  And it is necessary to look at all the particulars for my decision herein.  I first look at the first 4 particulars –

(a) Failing to take all reasonable care and proper precautions for the safety and health of the plaintiff whilst he was performing his assigned work duties; and/or

(b) Failing to provide and maintain a safe and proper system of work to the plaintiff; and/or

(c) Failing to provide and/or maintain a safe working environment to the plaintiff; and/or

(d) Failing to provide a safe place of work to the plaintiff;

24.  Mr. Sham concedes to withdraw particular (d) as it is a duplication.  But what is the difference between (a), (b) and (c)?  In fact, what the plaintiff claims is that the defendants have failed to provide a safe working system and environment.  But these paragraphs are lacking in particulars on, “in what way the defendant has failed to provide a safe working system?”.  This is the most important information, for without specifying the specific failure, there is no particulars of breach and these, so called “particulars”, would create uncertainty.  Hence, I would direct Mr. Sham to redraft particulars (a) to (c) to explain the breach, or to specify whether the failure or act of negligence is what has been pleaded in the subsequent sub-paragraphs, which I am now coming to.

25.  Particular (e) complains of insufficient lighting, which corresponds to paragraph 4 of the Statement of Claim. 

26.  Particular (f) complains that the defendants have failed to provide safety belt.  This is in fact Issue (f) suggested by the 2^nd defendant to be addressed by the expert.  And I would not be surprised that the 2^nd defendant would ask for expert opinion. The trial judge would be in a difficult position to decide if safety belt should be provided without expert evidence.  And I note there has been no evidence introduced by the plaintiff on this particular.

27.  Mr. Sham concedes the particular is irrelevant, and would not be relied on.  It should be withdrawn.  No expert evidence on safety belt (Issue (f)) would be necessary.  Legal costs have been incurred and I would deal with the issue at the end of this decision.

28.  Particular (g), which corresponds to Issue (g), claims that the defendants have failed to provide and/or install some kinds of camera/electronic visual system inside the Cabin which could allow the plaintiff to observe/match the positions of the crane/spreader/container without having to lean his body forward on a prolonged basis.

29.  This particular would require this Court to rule at the trial the safe working system required for an operator to work inside the Cabin.  Evidence has to be adduced to explain the technicality and advantage of using camera.  I ask Mr. Sham what evidence the plaintiff would introduce.  He said it would be a matter of submission.  And if he cannot prove the case, the plaintiff’s claim fails. 

30.  With no disrespect, this could not be a responsible attitude by litigant after CJR.  The whole purpose of case management is to ensure that the parties have prepared their case properly for the trial.  I presume the plaintiff would rely only on his oral evidence.  If there is no camera, then how could a camera assist him?  His evidence (as lodged in the hearing bundle) does not explain. 

31.  And if this is the complaint of the plaintiff against the defendants, the defendants must be entitled to introduce evidence to explain the use of camera and/or whether the provision is necessary for a safe and healthy working system.  To that, I have to consider if an expert opinion would be of assistant and of probative value to the trial judge.  It is helpful to look at the opinion given by Professor So.

32.  Paragraph 3.8 of the report states that there is electronic visual system inside the cabin he tested.  He mentioned that some operators did not prefer using the system but prefer direct eye contact with the container.  The system is only used for checking the blind spot.  He has not commented according to the requirement of Issue (g) whether the visual system could assist the plaintiff to execute his job, and I would add, in particular, to in particular, whether the system could mitigate the need of the operators leaning forward for long period of time.

33.  Whether there is visual system would be a matter of fact and no expert evidence is required, and I remind myself that Professor So has inspected a different Crane.  But whether the visual system, if exists in the Cabin, is necessary as a safety measure and could sufficiently assist a crane operator would be a matter of expert opinion.  Assuming that Professor So could elaborate his opinion on whether the visual aid could assist the operators and how, I am of the view that this would be of assistance to the trial judge.  I see no reason why expert opinion of Issue (g) should not be allowed.

34.  Mr. Sham concedes that particulars (h), (i), (l), (m), (p), (q), (t) and (u) should be withdrawn.  I would give the appropriate direction later.

35.  Particulars (j) and (k) are complaints of lack of trainings.  Particulars (n) and (o) are complaints that the plaintiff has to work prolonged period, 12 hours a day.  I accept these are matter of fact and finding.

36.  And particulars (r) and (s) are general complaints which I could group with particulars (a) to (c) and I expect Mr. Sham to clarify the complaints or to give better particulars.

37.  The difficulty I have is in all these 22 particulars, there is no direct reference to the complaint that the Cabin would shake or swing in motion and how that relates to the injuries of the plaintiff or his claim that the defendants are negligent. 

38.  While the plaintiff stated in the Statement of Claim (as above mentioned), the experience in using the Crane by him or other operators before the material accident, there is no suggestion that his injury is the result of unsatisfactory working condition over a period of time.  It is save for me to assume that he is claiming that his injury is a one-off incident.  The reference to earlier experience or adverse comments on the Crane is related to, or merely a background for his claim that on the date of accident, the Crane swung/shook/wobbled when he moved it up and down.

39.  I cannot rule out that paragraph 4 of the Statement of Claim would be relied on by the plaintiff to show that the machine provided is not safe to use, or the shake and vibration could create injury.  I see the reason why the 2^nd defendant asks for expert to test and assess the degree of vibration. Indeed, the plaintiff has complained that the Cabin swung/shook/wobbled in paragraph 4.  This is indeed Issue (c) for the expert.  Professor So has commented on the design of the Chair used for the test including the adjustment available.  He also measures the level of vibration on the Chair and inside the Cabin and gives comments. 

40.  The data collected by Professor So could allow the trial judge to have a more scientific assessment of the shake or swing that the plaintiff may suffer.  Design of the Chair is relevant to the allegation that some crane operators said the seat installed inside the cabin for the use of crane operator provided less shock absorbing capacity.  I see no reason why Issue (c) would not be relevant.  

41.  Further, I should also refer to the defence of the 2^nd defendant.  At paragraph 5(c), the defendant avers that the vibration of the Crane is within an acceptable level and would not cause harm to the operator, which is an averment by the 2^nd defendant.  The Chair is adjustable and whether it is designed to reduce the vibration are matter that the expert could offer assistance to the trial judge.  These are matters that have to be supported by expert evidence.

42.  Mr. Sham submitted that the chair being examined is not the same chair used by the plaintiff.  The expert has acknowledged in his preliminary report that he was not examining the same chair.  It is not unusual that experts have to use the closest comparable when the subject matter is not available.  There would not be injustice to the plaintiff who would have a chance to comment on the feature of the chair being tested.  The trial judge could decide the weight to be attached having considered the difference between the subject crane and the tested crane.

43.  I shall now continue to consider each Issue that the 2^nd defendant requires Professor So to comment (which I have not covered) and consider if they are relevant and of probative value.  I would come back to the complaint of undue delay thereafter.

THE ISSUES

44.  I would take Issues (a) and (b) together.  These 2 Issues relate to the posture that the plaintiff is required to adopt as suggested by the handling manual and the training manual of a 30-day training course.

45.  As to what is the posture suggested to the plaintiff by the handbook or his trainer, this would be matter of fact and finding and no expert evidence is necessary.  And as I analysed above, the plaintiff’s case is that he has to lean forward at the material time.  Whether he has been taught so to do or whether he has leaned forward would be a finding of fact. And the photographs now attached to the report could assist the trial judge to understand how the operator, including the plaintiff is working inside the Cabin.  I do not think that Issues (a) and (b) need assistance from expert provided the parties could agree a set of photographs for easy reference by the trial judge and witnesses.  And whether the posture would cause the injury may be a matter for comment by the orthopaedic experts.

46.  I have commented on Issue (c) and I found it relevant and of probative value.

47.  I have some hesitation with Issue (d).  It is similar in nature to Issues (a) and (b) which at the end, it is a finding of fact whether the plaintiff did lean forward.  But Issue (d) explained further that, by the design of the glass bottom, it is inevitable that the plaintiff has to lean forward to observe the machine and container underneath.  I would allow the expert to comment on the design of the Cabin as this is a matter relevant to the next Issue.

48.  For Issue (e), this is the opinion on whether the leaning forward posture could cause the accident.  As I said, this is a matter to be commented by the orthopaedic experts, and I do not think that paragraph 3.6.2 should be allowed.  But I have the chance to read the other paragraphs on this Issue.  The opinion also sets out whether this is a risk factor which, combined with the vibration of the Cabin as complained, impose an obligation on the defendants to arrange protective measure and if the answer is in the affirmative, what protective measure should be provided?  As to whether this is a risk factor, this must be an expert opinion by ergonomics.  As to whether the defendants have provided sufficient protective measure and training in light of the risk factor, this would be a finding of fact, which could be assisted by the opinion from expert.  Accordingly, I also allow Issue (e) with modification.  I would suggest to parties that the question should be –

“The risk assessment that the defendants should make on possible injury to the operator that may be created by the vibration of Cabin as complained in the Statement of Claim and the posture of the operators, and any protective measure that the defendants should provide for the operators including the plaintiff.”

49.  The parties may redraft my proposed question and failing agreement, there be liberty to apply.

50.  We do not need Issue (f) now as the particular has been withdrawn.  And for Issue (g), I have already commented that it is necessary.

51.  Issue (h) is too general and Mr. Li agrees with me that they would not seek expert opinion on this Issue.

52.  That leaves me with the general argument if this application has been taken out too late.  Mr. Sham submits that the Statement of Claim has been filed on 15 September 2016 and the defence of the 2^nd defendant has been filed on 10 January 2017.  And the summons for expert opinion has only been taken out in September 2017.

53.  Further, there were case management directions, including consent summons signed by the parties between June 2016 to June 2017.  There was no suggestion by the 2^nd defendant that expert opinion is required.  Mr. Sham noted that while the ergonomic report prepared by Professor So is dated 17 August 2017, he conducted interview and examination for the Report as early as on 27 October 2016.  If the 2^nd defendant is minded to adduce expert evidence, they should have made this application much earlier.

54.  Mr. Sham also submits that introduction of the report would create delay.  It is also possible that amendments to pleadings, additional witness statement have to be introduced.  And the plaintiff may not have access to Crane 604.  And examination of other crane may not be of high probative value.

55.  Mr. Li submits that the witness statements have only been exchanged in April 2017.  And they could only consider the relevancy of an expert report, after knowing the factual basis of the plaintiff’s case.

56.  I accept that the 2^nd defendant could be regarded as late in taking out this application.  But I cannot agree that it is undue delay.  The case has not been set down.  Some time could be saved if the plaintiff has agreed to the introduction of expert report.  I can safely assess that there would be a delay of about 4 months if the plaintiff has agreed to adduce expert evidence in September 2017.

57.  I need not mention that the plaintiff has to amend the Statement of Claim for reasons set out above.  It is usual for PI Master to ensure that the case is ready for trial at the last Checklist Review Hearing before leave is granted for setting down.  Looking at the pleading again, there is no chance that leave could be granted in December 2017 for the case be set down.

58.  It is always a balancing exercise.  For if the case is not properly prepared before setting down, the trial judge would not be properly assisted.  The delay is not so serious that I should refuse the application, having taken into account the underlying principle of Order 1A.

59.  Mr. Sham also complained that the Crane 604 might not be in operation and if it is, it must have gone through many repairs and maintenance.  The examination result would have little probative value.

60.  I do not agree that the report could be of no probative value.  And since the 2^nd defendant has examined Crane 602 which is a similar model to Crane 604, the Court must direct leave be granted to the plaintiff to examine Crane 602 and the Chair now being used as a condition for allowing the report of Professor So be adduced.  And the plaintiff and the defendant could identify the difference in the 2 cranes.  The trial judge could assess the difference and decide on the weight to be attached.  And indeed, matters like the setting of Cabin, the posture required, these would be quite straight forward and I see no serious prejudice to the plaintiff.

61.  In conclusion, I would allow the 2^nd defendant to adduce an ergonomic expert report on Issues (c), (d), (e) and (g) with the revision and amendment I suggested above.  A fresh report should be composed.  And I believe the parties could agree within 28 days as to, firstly, whether any revision to the wordings of the Issues is required; secondly, when the 2^nd defendant could adduce a revised ergonomic expert report; thirdly, when the plaintiff’s expert could prepare the report and fourthly, when the experts could meet on without prejudice basis and prepare a joint report setting out the issues that they agree and the issues that they disagree and the competing views.  To monitor the agreement, I would set a hearing before myself on expert direction on 10 May 2018 at 9:30 a.m.

62.  I would also grant leave to the plaintiff to withdraw particulars (d), (f), (h), (i), (l), (m), (p), (q), (t) & (u) of paragraph 5 of the Statement of Claim and costs of and occasioned by these withdrawals be to the defendants in any event.  This would include the costs for taking instruction and obtaining a preliminary report on the issue of safety belt and 12.5% of the costs of the report of Professor So.  I would also allow a further 30% of the costs of the report of Professor So be costs in the cause as part of his report is being used as a preliminary opinion/report today.

63.  I expect Mr. Sham could refine the Statement of Claim taking into account what I suggested above and I would expect a draft Amendment be provided for discussion on the said direction hearing.

64.  On this application, the 2^nd defendant is successful in most of the items.  I am giving an order nisi that costs of this summons be to the 2^nd defendant to be taxed if not agreed, with certificate for counsel.  Since the 1^st defendant has attended the hearing only as a watching brief after I   invited his solicitor to leave, I am not minded to grant any costs in favour of the 2^nd defendant.

65.  Lastly, may I extend my gratitude to both counsel for their assistance, and particularly to Mr. Sham who has a very difficult case.