WONG YEUNG CHUI YEE v. CITYBASE PROPERTY MANAGEMENT LTD AND OTHERS

DCPI 1522/2016

[2020] HKDC 1189

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1522 OF 2016

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This is the common law claim of the plaintiff, a 96 years old lady[1], who was injured on 20 March 2014 inside the Shopping Arcade of Caribbean Square, Tung Chung, New Territories, Hong Kong (the “Arcade”). The defendants in this case are:-

(1) the 1^st defendant, being the manager responsible for the management of the Arcade;

(2) the 2^nd defendant, as the main contractor responsible for the decoration/ reinstatement/demolition works performed at Shop 26 of the Arcade (the “Works”);

(3) the 4^th defendant, being the sub-contractor of the 2^nd defendant in respect of the Works; and

(4) the 3^rd defendant, one of the employees of the 4^th defendant, engaged to perform the Works.

2.  At the trial, the plaintiff was represented by counsel Ms Josephine L Y Tjia (“Ms Tjia”), the 1^st defendant was represented by counsel Ms Sara Cheuk Wai Li (“Ms Li”), and the 4^th defendant was represented by counsel Mr Ernest C C Ng (“Mr Ng”).  The 2^nd defendant was unrepresented and present.

3.  The 3^rd defendant was also unrepresented, but was absent from the trial.  As per the court’s record, save for the first Checklist Review Hearing on 29 December 2016, the 3^rd defendant was absent in all previous court hearings.  No document was filed by him in these proceedings.  Judgment on liability was entered against him on 22 November 2016 in default of giving notice of intention to defend, leaving damages to be assessed.

BACKGROUND FACTS

4.  The following facts are gathered from the parties’ pleaded case, the evidence of their witnesses and the CCTV recording.  They are not disputed by the parties.

Setting of the Arcade

5.  I will start with the setting of the relevant areas of the Arcade.  In this regard, I will rely on the CCTV recording (the “Video”) and the floor plan of the Arcade (the “Floor Plan”) [2] supplied by the 1^st defendant.

6.  The Video started at 11:00:00 am.  It came from the camera installed near the entrance of the “International” supermarket (the “Supermarket”).  The Video showed the Supermarket which is located at the bottom right corner of the screen, closest to the camera.  It was followed by, in sequence: (1) the exit (the “Exit”) which led to the cargo lift to the loading and unloading area inside the carpark (the “Loading Area”); (2) Shop 25[3]; and (3) Shop 26, which is located at the top right of the screen, and farthest from the camera.  It could be seen from the Video that Shop 26 is surrounded by white hoarding.  Outside the hoarding, there are the rails.  The rails are extended to and ended close to Shop 25.

7.  Although it could not be seen from the Video, the parties accepted that Shop 24 was located between Shop 25 and the Exit as shown on the Floor Plan.  It is also undisputed by the parties that Shop 24 was occupied by an employment agency.

8.  It was agreed by the parties that when the 3^rd and 4^th defendants were transporting the debris from Shop 26 to the Loading Area, they were designated a route for doing so. The route covered part of the corridor situated outside Shop 26 and continued along Shop 25 and Shop 24 up to the Exit (the “Route”), where they would turn into it and took the cargo lift located therein to the Loading Area.

9.  At the very beginning of the Video, one could see there were already visitors inside the Arcade, most of them wandering close to the entrance of the Supermarket.  Among the visitors were adults, adults of advanced age, and young children. One could also see from the Video that:-

(1) at about 11:09 am, a woman pushing a baby cart stopped on the Route at the entrance of Shop 25, and she squatted down (with her back towards Shop 26) seemingly attending to the baby inside the cart, and continued to do so until 11:10:32 am, when she left, pushing the cart away;

(2) at about 11:09 am, another lady who was pushing a baby cart stopped on the Route, again outside the entrance of Shop 25, and remained there until 11:11:25 am; and

(3) at about 11:10:13 am, a young girl, looking no more than 3 to 4 years old, was playing with her scooter on the Route at the end of the railings in front of Shop 25, and she continued to do so until her caretaker took her away at 11:10:45 am.

The characters and the roles they played

10.  At the material time, the plaintiff resided at the Caribbean Square.  She lived with her eldest daughter.  Her third daughter also resided at the same estate but separately from the plaintiff.  It was a habit of the plaintiff to take a stroll inside the Arcade every now and then, and alone.  She was doing so on the day in question.

11.  Shop 26 was rented out to Mr Lau Tsz Kin (“Mr Lau”) trading as “Salon Caribbean”, and the lease was set to expire on 31 March 2014.  Mr Lau thus instructed the 2^nd defendant to reinstatement Shop 26, and the Works commenced on 19 March 2014 and completed on 20 March 2014.

12.  Pausing here, the parties have different interpretation of the Works.  The plaintiff called them decoration in her amended statement of claim, which is plainly inaccurate in light of the evidence produced.  The 1^st defendant described them as reinstatement, whereas both the 2^nd and 4^th defendants contested they were mere demolition works.  I see no need to resolve the difference between the defendants as it makes no difference to the end result.  Suffice it to say the 2^nd and 4^th defendants were tasked with removing materials and certain fixtures from Shop 26.

13.  The 2^nd defendant’s husband, Mr Chow Kwok Hing William (“Mr Chow”), was one of the project managers of the Works, and attended the Arcade on both 19 and 20 March 2014.  On 19 March 2014, he remained at the Arcade from 9 am until about 5:30 pm when the Works were halted.  The 2^nd defendant went to the Arcade with Mr Chow on 20 March 2014, but they left at about 10 am as the 2^nd defendant, who was pregnant at the time, felt uncomfortable.  Naturally, they did not witness how the incident happened.

14.  The 2^nd defendant subcontracted the Works to the 4^th defendant, whom in turn employed 2 workers, including the 3^rd defendant, to perform the same.

15.  On 20 March 2014, the 3^rd and 4^th defendants were responsible for transporting the debris removed from Shop 26 to the Loading Area where the remaining worker would load the debris onto a truck.  Neither the 4^th defendant nor the remaining worker was at the scene when the incident happened. 

16.  2 witnesses were called on by the 1^st defendant to testify at the trial.  The first witness is Ms Wong Ka Bo (“Ms Wong”), at the material time a customer service ambassador employed by the 1^st defendant to work at the Arcade.  The second witness is Mr Chan Kam Wah (“Mr Chan”), a safety officer of the 1^st defendant.

17.  On 20 March 2014, Ms Wong, patrolled the Arcade twice that morning.  At 9:38 am when she walked pass Shop 26 during her scheduled morning patrol, she noticed nothing out of the ordinary which could create hazards to the Arcade and its visitors.  On her second and unscheduled patrol at about 11:14 am, she saw the fallen and injured plaintiff, and reported the incident to her superior.

18.  As for Mr Chan, he attended the scene after receiving Ms Wong’s report.  He inquired with the 3^rd defendant as to the how the incident happened.

19.  Finally, the white hoarding outside Shop 26 was erected by the 2^nd defendant upon the request of the 1^st defendant.  The rails were placed around the white hoarding by the 1^st defendant.  The parties agreed that the rails did not cover the whole Route.  It was also agreed that, save a working permit was posted on the white hoarding by the 1^st defendant, no warning sign or notice was posted at or near Shop 26.

The Accident

20.  The Video was played in court starting from 11:12:04 am on 20 March 2014, when the plaintiff appeared from the top middle-left side of the screen, and opposite Shop 26.  She was walking slowly along the rails, down towards the Supermarket direction.  About 2 seconds later, ie 11:12:06 am, the 3^rd defendant emerged and backing-out from inside Shop 26, pulling the trolley.  At this moment, the 3^rd defendant was at the left side of the plaintiff.  The plaintiff continued walking, and as the 3^rd defendant was manoeuvring the trolley toward the Supermarket direction, he fell behind the plaintiff.  The 3^rd defendant then started to push the trolley in-between the rails and the hoarding at 11:12:09 am.  There were boxes and debris loaded on the trolley, and the top of the load reached the chest of 3^rd defendant.  At 11:12:12 am, the plaintiff arrived at the end of the rails near Shop 25.  She then started to walk diagonally to her left, inching closer to the windows of Shop 25, entering the Route.  At this time, the 3^rd defendant and the trolley came up from behind the plaintiff and knocked her down to the ground at 11:12:17 am, with her right forehead hitting the ground.  The load on the trolley then fell on top of the fallen plaintiff (the “Accident”).

21.  One could observe from the Video that the plaintiff was walking on the Route and had been in front of the 3^rd defendant and the trolley for 5 second before the collision.

22.  Shortly after the Accident, Dr Ip Wing Fai (“Dr Ip”) came out of Shop 25 to render initial treatment to the plaintiff.  While waiting for the ambulance to arrive, Ms Wong had contacted the plaintiff’s third daughter, who eventually came to the Arcade and accompanied the plaintiff to the hospital.  The inquiry that Mr Chan made with the 3^rd defendant also took place at this time.

LIABILITY

The plaintiff’s case

(1) The amended statement of claim

23.  The plaintiff set out how the Accident happened in her amended statement of claim.  She alleged that there were carton boxes loaded on the trolley which contained construction materials and/or other objects.

24.  The plaintiff criticised that, at the material times, there were no warning signs or notices or warnings of any kind alerting visitors of the Works.  Nor was there any warning signs or notices or warnings of any kind alerting visitors to watch out for workers who would be transporting construction materials by trolleys inside the Arcade.

25.  The plaintiff blamed all defendants for the Accident and the injuries that she sustained because of it.  For the 1^st defendant, the plaintiff alleged that it was in breach of its duty of care as a manager of the Arcade.  In a nutshell, the plaintiff criticised the 1^st defendant for not giving instructions and proper supervision to the Works, in particular, the use of trolleys inside the Arcade by the 2^nd to 4^th defendants.  She complained that the 1^st defendant should not have allowed them to overload the trolley in question with carton boxes of construction materials, which had blocked the 3^rd defendant’s view.  The 1^st defendant should have also ensured that the 2^nd to 4^th defendants had properly fastened the carton boxes loaded on the trolley to prevent them from falling.  In addition, the 1^st defendant should have designated a route for transporting the construction materials so as to avoid crossing path with the visitors of the Arcade.  Furthermore, warnings and notices should have been provided to visitors regarding the Works.

26.  Regarding the 2^nd defendant, it was said that as the main contractor of the Works, she owed, and was in breach of, the duty of care to the plaintiff, as well as being liable vicariously for the negligent acts of the 3^rd defendant.  The plaintiff accused the 2^nd defendant for having failed to provide proper training, instructions and proper supervision to the Works, in particular, the use of trolleys by the 3^rd and 4^th defendants.  The plaintiff made the same complaint that the 2^nd defendant should not have allowed the 3^rd defendant to overload the trolley with carton boxes of construction materials, and had failed to ensure that the carton boxes loaded on the trolley were properly tied and secured to prevent them from falling.  The 2^nd defendant had also failed to give warnings and notices to the visitors of the Arcade concerning the Works and to watch out for the moving trolleys.

27.  As against the 4^th defendant, the plaintiff made accusations similar to those made against the 2^nd defendant.

28.  Finally, regarding the 3^rd defendant, the plaintiff’s complaints focused on his improper usage of the trolley, citing the same accusations that he had overloaded the trolley with carton boxes, the carton boxes had blocked his view, failing to give adequate and proper warning to the plaintiff when he was pushing the trolley towards her from behind, etcetera. She added that the 3^rd defendant did not exercise any adequate care in managing or controlling the trolley.

29.  Apart from the breach of duty of care, the plaintiff relied on the Occupiers Liability Ordinance, Cap 314 (“OLO”), and asserted that the 1^st defendant was the occupier of the Arcade.  She also alleged that the 1^st, 2^nd and 4^th defendants were in breach of section 3(2) of the OLO on the bases of their breach of duty of care and the negligence of the 3^rd defendant.

(2) Reply to the 4^th defendant’s defence

30.  Although all defendants, save the 3^rd defendant, claimed contributory negligence on her part, the plaintiff found it necessary only to reply to the 4^th defendant’s accusation.  In it, she denied being negligent, with the emphasis that the 3^rd defendant did not shout warnings to her prior to the Accident.

The 1^st defendant’s case

(1) Defence to the plaintiff’s claim

31.  The 1^st defendant’s case, as per its amended defence filed on 25 January 2017, and its answer to the plaintiff’s request for further and better particulars filed on 3 January 2017, is summarised below.

32.  The 1^st defendant disagreed with the plaintiff’s complaint about the lack of precautionary measures taken by it concerning the Works.  It enumerated that it had surrounded Shop 26 with white hoarding, posted notice on the same, and retractable rails were also placed encircling the said white hoarding.  It was said that transportation of the debris from Shop 26 could still be conducted between the hoarding and the rails.  All these steps were taken to warn and prevent visitors from venturing into Shop 26 and its vicinity.

33.  Apart from the said measures, the 1^st defendant added that it took the following steps:-

(1) Its staff met with Mr Lau and the 2^nd defendant on or about 10 February 2014, before commencement of the Works.  The staff also met with the workers of the 2^nd defendant and/or the 4^th defendant on a daily basis from 13 to 20 March 2014.  During these meetings, the staff directed Mr Lau, the 2^nd defendant, the 4^th defendant, and their respective workers, to pay attention to the safety of the visitors of the Arcade when carrying out the Works.  Specific instructions were given to them on the use of trolley to transport the debris from Shop 26.  In particular, they were told to properly pack the debris and should fasten the same to the trolley so as to prevent them from falling; they should also designate 2 workers to man the trolley when transporting the debris.  For the last requirement, they were told that one worker should be assigned to walk in front of the trolley to clear the path while the other worker was pushing the trolley from behind.

(2) Standard fit out guidelines were provided by the 1^st defendant to Mr Lau on 10 February 2014, reminding him to engage competent contractor to perform the Works.  Mr Lau was also warned that he would be liable for all personal and properties injuries arising from the Works.

(3) Security guards were assigned by the 1^st defendant to inspect the Arcade, including the vicinity of Shop 26, to ensure that the Works were safely done.  And on the day of the Accident, at about 10:15 am, a security guard had surveyed the vicinity of Shop 26 and found no unsafe activity.

34.  For these reasons, the 1^st defendant denied there was any breach of the duty of care owed to the plaintiff.  Instead, it put the blame squarely on the shoulders of the 2^nd and 4^th defendants.  The 1^st defendant accused them of not following its instruction: they had failed to properly pack and fasten the debris to the trolley; they had failed to assign 2 workers to transport the debris by trolley, but assigned only the 3^rd defendant to carry out such task; the debris was stacked too high on the trolley, blocking the 3^rd defendant’s view toward the front thus not seeing the plaintiff.  The 1^st defendant also alleged that the 3^rd defendant was pushing the trolley too fast and had failed to stop the same in time when he saw the plaintiff.

35.  The 1^st defendant concluded its defence by adding that the plaintiff’s own negligence had contributed to the occurrence of the Accident.  She had not paid proper attention to the Works, the approaching trolley, and failed to heed the danger of walking within the vicinity of Shop 26.

(2) The 1^st defendant’s claim for contribution and indemnity against the 2^nd and 4^th defendants

36.  Relying on the pleaded case of the plaintiff, and the alleged negligence of the 2^nd and 4^th defendants as highlighted in its amended defence, the 1^st defendant claims indemnity and/or contribution against the 2^nd and 4^th defendants for any damages and costs that the 1^st defendant might be ordered to pay to the plaintiff.

(3) The 1^st defendant’s defence to the 2^nd and 4^th defendants’ claim for contribution and indemnity

37.  In its defence to the 2^nd defendant’s statement of claim for contribution and indemnity, the 1^st defendant repeated the contents of its amended defence to the plaintiff’s claim, and the contents of its statement of claim for contribution and indemnity against the 2^nd and 4^th defendants.

38.  Regarding the 4^th defendant’s statement of claim for contribution and indemnity, apart from adopting the same lines of defence to the 2^nd defendant’s claim as set out in the above, the 1^st defendant added the following:-

(1) The 1^st defendant was only an occupier of the public area of the Arcade.  It had no control over any individual shop which had been rented out.

(2) At the material time, the 4^th defendant and his workers were conveying debris with the use of trolley from Shop 26 to the Loading Area.  It is also admitted that prior to the Accident, the 4^th defendant and his workers had been using the Route to convey the debris.

(3) The 1^st defendant disagreed that the 3^rd defendant was conveying empty carton boxes and light-weight debris at the time of the Accident.  Instead, he was conveying some air-conditioning installation materials and/or air-conditioning parts and/or decoration waste.

The 2^nd defendant’s case

(1) Defence to the plaintiff’s claim

39.  In her homemade amended defence, despite that she had already left the Arcade at the time of the Accident, the 2^nd defendant neither denied the existence of the Accident nor how it happened.  She denied, however, that she was negligent as alleged.

40.  The 2^nd defendant explained that there had been numerous co-operations between herself and the 4^th defendant prior to the Works.  She commented that the 4^th defendant was an experienced and reliable contractor, and his work was satisfactory.  Thus, whenever there were demolition works, she would sub-contract the same to the 4^th defendant.  She would also leave the training and supervision of the workers to the 4^th defendant.  The 4^th defendant was again tasked with these duties concerning the Works, and there was no reason for her to meddle.

41.  Regarding the Accident, she blamed it on the negligence of the 3^rd defendant.  The trolley was controlled by him, and he should be careful when operating it.  In particular, he should limit the height of the materials loaded on the trolley and the speed when he was pushing the trolley.  Although there were no safety guidelines issued by the Labour Department as to the usage of a trolley, the 3^rd defendant should have the awareness of using it carefully.  The 2^nd defendant said she had also reminded the 3^rd and 4^th defendants about the same.

42.  The 2^nd defendant denied that she had failed to take any precautionary measures to prevent the Accident as alleged by the plaintiff.  She had followed the instructions from the 1^st defendant by erecting white hoarding around Shop 26, acquiring third-party insurance policy for the Works, and made sure that the Works were performed within the hours set by the 1^st defendant.

43.  Apart from the above, the 2^nd defendant stressed that the Accident happened outside Shop 25, and any control that she had was limited to Shop 26.  Thus, the place where the Accident happened fell within the control of 1^st defendant and not hers.

44.  Finally, the 2^nd defendant remarked that the plaintiff or her carer should have taken a higher level of alert when walking within the vicinity of Shop 26 at the material time.

(2) The 2^nd defendant’s claim for contribution and indemnity against the 1^st, 3^rd and 4^th defendants

45.  Against the 1^st defendant, the 2^nd defendant accused it for not providing a safe environment for the Arcade’s visitors.  She also complained that the 1^st defendant had failed to give notice to the visitors as to the Route that was designated for conveyance of debris from Shop 26 during the subsistence of the Works.

46.  Regarding the 4^th defendant, her complaint was that he failed to select suitable workers for the Works and properly manage them.

47.  The 2^nd defendant saved her harshest criticisms for the 3^rd defendant, admonishing him for his total lack of safety awareness and continued to push the trolley when he could see clearly that the plaintiff had entered into the Route.

48.  For the said reasons, the 2^nd defendant claimed contribution and indemnity from the 1^st, 3^rd and 4^th defendants for all losses and costs that she might incur in this case.

(3) The 2^nd defendant’s defence to the 1^st and 4^th defendants’ claim for contribution and indemnity

49.  The 2^nd defendant essentially adopted the same defence to the plaintiff’s claim in her defence to the 1^st and 4^th defendants’ claim for contribution and indemnity against her.

The 4^th defendant’s case

(1) Defence to the plaintiff’s claim

50.  In his defence, the 4^th defendant admitted that the 3^rd defendant was a casual worker engaged by him.  The 2^nd defendant further clarified that the Works were set to be completed within 2 days, and the Accident happened on the last day of work.

51.  The 4^th defendant gave description as to how the Works were conducted.  He explained that, on the day of the Accident, he and his workers were permitted by the 2^nd defendant to work from 8 am to 11 am.  As part of the Works, he and his workers had to use trolleys to convey the debris from Shop 26 to the Loading Area using the Route.  At about 11 am, the Works were close to completion.  By that time, the workers had already made about 30 rounds of transportation using the Route.  The 4^th defendant stressed that both the 1^st and 2^nd defendants were aware of this mode of transportation adopted by him and his workers.

52.  By the time the Accident happened, only light-weight materials remained to be removed from Shop 26.  The 3^rd defendant was in the course of conveying these debris and some empty carton boxes using the trolley.  The 4^th defendant opined that there was therefore no need to tie them to the trolley.  He considered that there were neither too many carton boxes loaded on the trolley nor was the 3^rd defendant’s frontward view blocked by the carton boxes.  He said that such a simple task would not require the trolley to be manned by 2 workers.

53.  His narrative continued with the 3^rd defendant pushing the trolley along the Route when the plaintiff carelessly and/or unexpectedly entered into the Route in front of the trolley.  Upon seeing the plaintiff, the 3^rd defendant immediately shouted warnings to the plaintiff but to no avail.

54.  Despite the events described above seem to be leading up to the Accident, the 4^th defendant’s narrative abruptly ended.  He pleaded no admission as to the existence of the Accident, and how it occurred.

55.  The 4^th defendant claimed that the 3^rd defendant had 30 years of experience in the industry, and had received instructions and training in performing demolition works.  He was also a holder of Construction Industry Safety Training Certificate (“the “Safety Certificate”) at the time of the Accident.  For these reasons, the 4^th defendant was satisfied that the 3^rd defendant was a competent and sufficiently trained person to perform the Works.

56.  Relying on the above, the 4^th defendant denied that he and/or the 3^rd defendant were negligent as alleged.  He also denied that he should be liable or be vicariously liable for the Accident.  On the contrary, he asserted that the Accident was caused by the negligence of the 1^st and 2^nd defendants, and/or the plaintiff’s own negligence.

57.  Against the 1^st and/or 2^nd defendants, the 4^th defendant complained that they had failed to set up any or any sufficient rails, or to designate the Route for conveying the debris from Shop 26 to the Loading Area.  He expanded on the former, pleading that rails should be set up to prevent visitors of the Arcade, including the plaintiff, from entering into the Route, and from being injured during the debris-conveying process.  In the same vein, the 1^st and/or 2^nd defendants should have arranged staff to prevent and warn visitors from entering into the Route, and to monitor the Route.  They had also failed to arrange any or any sufficient staff to assist the 3^rd and 4^th defendants in the debris-conveying process.  Finally, the 4^th defendant alleged that the 1^st and/or 2^nd defendants had failed to implement any safe system, including giving warnings and notices, to prevent visitors from being injured by the debris-conveying process.

58.  As to the plaintiff, the 4^th defendant blamed her for not keeping any proper lookout and care for her own safety, and with insufficient regard for the Works and the debris-conveying process, when she was walking within the vicinity of Shop 26.  He also claimed that the plaintiff had carelessly and unexpectedly ventured into the Route, and had failed to pay heed of the approaching trolley and the warning shouted by the 3^rd defendant.  Her failure to use a walking stick or other assistance devices and to request for assistance from the staff of the Arcade, were also causes for her own misfortune.

(2) The 4^th defendant’s claim for contribution and indemnity against the 1^st to 3^rd defendants

59.  Similar to the 1^st defendant, the 4^th defendant relied on the pleaded case of the plaintiff, and the alleged negligence of the 1^st and 2^nd defendants as highlighted in his defence, to claim indemnity and/or contribution against them.  The 4^th defendant added that both the 1^st and 2^nd defendants were in breach of the OLO, in particular, section 3.

60.  The 3^rd defendant was not spared by the 4^th defendant in such claim.  He blamed the 3^rd defendant for failing to keep proper lookout when pushing the trolley, and for failing to pay sufficient care and attention to the presence and the position of the plaintiff.  The 3^rd defendant had also failed to properly control the trolley, in particular, to stop, slow down and/or swerve the same when he saw the plaintiff, so as to avoid knocking her down.  In addition, the 3^rd defendant had failed to take measures to prevent the carton boxes and debris on the trolley from falling onto the plaintiff.

(3) The 4^th defendant’s defence to the 1^st and 2^nd defendants’ claims for contribution and indemnity

61.  In his defence to the 1^st and 2^nd defendants’ respective statement of claim for contribution and indemnity, the 4^th defendant repeated his defence to the plaintiff’s claim, and the contents of his statement of claim for contribution and indemnity against the 1^st to 3^rd defendants.

KEY ISSUES ON LIABILITY

62.  In light of the parties’ respective cases, the issues on liability are as follows:-

(1) Whether the 1^st, 2^nd and/or 4^th defendants owed any duty of care to the plaintiff?

(2) If so, whether the 1^st, 2^nd and/or 4^th defendants were in breach of their duty of care to the plaintiff?

(3) Whether the 1^st, 2^nd and/or 4^th defendants were in breach of the OLO? In the premises, whether they were occupiers of the Route at the material time?

(4) Whether the 2^nd and 4^th defendant should be vicariously liable for the negligence of the 3^rd defendant?

(5) Whether the plaintiff was contributorily negligent?

(6) If the 1^st, 2^nd and 4^th defendants were all held liable, how should their liability be apportioned?

EVIDENCE ON LIABILITY

The plaintiff’s evidence

63.  The plaintiff gave evidence at the trial.  Though advanced in her age, she encountered only minimal difficulty in the receipt and apprehension of the questions put to her. She was also coherent and quick-witted in her response when cross-examined.  Suffice it to say, in a good way, she did not act her age.

64.  The plaintiff adopted her witness statement as part of her evidence-in-chief.  Concerning liability, the plaintiff’s account of the Accident was consistent with her pleaded case.  It was unsurprisingly brief, as the collision came from behind.  But she was able to recall that just before the Accident, she observed there was neither notice nor warning posted in the Arcade, alerting visitors to the Works at Shop 26 and to pay heed to workers using trolley to transport debris.

65.  Under cross-examination, the plaintiff confirmed that she was familiar with the Arcade, and she would stroll inside the Arcade every now and then.  She agreed that the Arcade only had one level, and the corridors were very wide.

66.  The plaintiff did not know whether there were frequent renovation works inside the Arcade.  Prior to the Accident, she had never seen any trolley being pushed inside the Arcade.  The plaintiff went on to explain that when she and her elder daughter moved into the Caribbean Square, they were told by the management office that no trolley could be used within the estate, be it in the residential areas or the Arcade.

67.  Turning to the Accident itself, the plaintiff was aware of the Works at Shop 26 before the day of Accident.  Notwithstanding, she did not expect there to be trolley transporting materials or debris to and from Shop 26 inside the Arcade.  At the material time, the plaintiff said that she was strolling inside the Arcade by herself.  There was no particular shop that she had planned to visit.  With the aid of a photograph, she agreed that Shop 26 was surrounded by white hoarding and rails.[4]

68.  The plaintiff repeated that she neither saw the 3^rd defendant nor heard any shouting from him prior to the Accident.  She did not turn around when she was walking, thus she did not see that the 3^rd defendant approaching from behind with the trolley.  She was aware of the Exit, but she did not know that construction workers would have to use the same when conveying construction materials out of the Arcade.  She did not, therefore, anticipate that the workers who were involved in the Works would be transporting debris from Shop 26 to the Exit.

69.  Finally, the plaintiff denied that she was careless for not turning her head and checked whether there was any trolley approaching from behind before “changing lane” and entering into the Route.

Evidence of the 1^st defendant

(1) Ms Wong’s evidence-in-chief

70.  Ms Wong adopted her witness statement as part of her evidence-in-chief.

71.  Ms Wong has been under the employ of the 1^st defendant and has been assigned to work at the Arcade since 2012.  As a customer service ambassador, her daily duties would include patrolling the Arcade, registration of workers entering and exiting the Arcade, monitoring the CCTV, answering and handling inquiries from occupants, and to perform other duties as assigned by her superior.

72.  Ms Wong explained that whenever there were construction works at the shops of the Arcade, the 1^st defendant would require the shops in question to be enclosed by white hoarding and rails, in order to prevent visitors from entering into them.  Work permits must be posted on the white hoarding.  Workers involved in the construction works had to be registered at the customer service counter whenever they enter or exit the Arcade.  Ms Wong confirmed that the same requirements had been complied with in relation to the Works.  Ms Wong further confirmed that the Route was used by the workers to convey debris from Shop 26 to the Loading Area.  She added that Mr Chan had, in his morning briefings, reminded staff to pay special attention to the Works whenever they were patrolling the Arcade.

73.  Finally, Ms Wong remarked that throughout the time she worked at the Arcade, there were no report of other similar incidents involving the use of trolley.

(2) Ms Wong’s evidence under cross-examination

74.  When cross-examined, Ms Wong confirmed that her duties were accurately set out in paragraph 3 of her witness statement.[5]  She agreed that her duties did not include giving tenants instructions or guidelines concerning construction works at the shops.  Her knowledge of the said requirements was acquired not from her own experiences, but from the morning briefings given by Mr Chan. 

75.  Ms Wong was referred to the Renovation Guidelines of the Caribbean Square (February 2013 Version) (the “Guidelines”)[6] annexed to the letter issued by the 1^st defendant to Mr Lau on 10 February 2014 (the “Letter”).  She admitted that she has never read the Guidelines.  And notwithstanding her earlier evidence that the use of white hoarding was aimed at preventing visitors from entering the construction sites, she agreed that the only explanation given in the Guidelines was to maintain the appearance of the Arcade.[7]

76.  When asked by Mr Ng, Ms Wong explained that the white hoarding was erected around Shop 26 by the workers of the 4^th defendant, but the rails were provided by the 1^st defendant.  She agreed that no rail was erected along the Route beyond Shop 26, but she commented that such arrangement could obstruct access to the other shops situated along the Route.  Conversely, Ms Wong agreed that placing carpets on the Route could have the effect of warning visitors the existence of the Works.

77.  On the point of paying special attention to the Works, Ms Wong was referred to the Statement Report that she made on 13 September 2014 regarding the Accident (“Wong’s Statement Report”).  In it, Ms Wong reported on the condition of the scene of the Accident.  She described that the ground was even, and there was no damage found on it.  There was also no water stain or litter on the ground.  Overall, no oddity was noticed.[8]  In answer to the question from Ms Tjia, Ms Wong agreed that by “paying special attention to the Works”, her focus was strictly on the reported matters.

78.  Further, Ms Wong affirmed to her observation in Wong’s Statement Report that there was neither warning signs nor notices posted near the scene of Accident reminding visitors to pay heed to the Works.

79.  As to the time of her patrols on the day in question, Ms Wong clarified that she did not perform any such duty at 10:15 am, despite what was pleaded in the 1^st defendant’s amended defence.  She first patrolled the Arcade and walked pass Shop 26 at 9:38 am.  The patrol that she performed at 11:14 am, when she saw the injured plaintiff, was an unscheduled one, thus there is no record of it.

80.  Regarding the trolley in question, Ms Wong stated in Wong’s Statement Report that she was unsure as to the size of it or the materials loaded thereon.  She agreed that there was no instruction given to her as to what to look out for after an accident like this.

81.  Ms Wong explained there were prohibitions on the use of forklift trolley and trolley with wheels made of steel in the Arcade.  She agreed that these prohibitions mainly served to protect the floor of the Arcade.  She agreed that trolleys used by the 4^th defendant and his workers complied with the requirement set by the 1^st defendant, as the wheels were made of plastic.  She further agreed that trolleys and shopping carts[9] were frequently used inside the Arcade respectively by construction workers and visitors.  If she saw any improper or hazardous use of the same, she was vested with the power to stop the workers and visitors.

82.  Finally, Ms Wong could not recall whether the workers of the 4^th defendant attended the Arcade at about 8 a.m. on the day in question.  But she knew that they were only allowed by the 1^st defendant to perform the Works between 8 am and 11 am.  She did not know whether the 4^th defendant and his workers, prior to the Accident, conveyed debris from Shop 26 to the Loading Area for 30 odd times on that day.  She could not recall whether she had seen the workers using the Route to convey debris before the Accident happened.

(3) Ms Wong’s evidence under re-examination

83.  Ms Wong elaborated on the reservation she had about having rails set up along the entire Route as suggested by Mr Ng.  She explained that Shops 25 and 24 were located between Shop 26 and the Exit. To have the rails covering the entirety of the Route would block visitors’ access into these shops.  As the rails were retractable, Ms Wong also queried their effectiveness to keep visitors out of the Route.

84.  As to her morning patrol of the Arcade, by reference to the Patrol Report[10], she confirmed that it started at 9:29 am and ended at 10:18 am.  The Floor Plan was shown to Ms Wong, and questions were asked by Ms Li as to where she went and what course she took after completion of the scheduled patrol.  Suffice it to say that based on her description, Ms Wong did not walk pass Shop 26 again between 9:38 am and 11:14 am.

(4) Mr Chan’s evidence-in-chief

85.  Mr Chan adopted his witness statement as part of his evidence-in-chief at the trial.

86.  At the time of his statement[11], he had been employed by the 1^st defendant and assigned to work at the Arcade for 5 years.  He was still under the employ of the 1^st defendant at the time of trial.

87.  As a safety officer, his duties would include: general building safety and patrol works; registration of visitors; reporting on and recording down incidents; handling incidents of urgency; ensuring fire safety requirements had been adhered to; preventing and detecting any criminal conducts; monitoring the CCTV; and to perform other tasks as assigned by his superior.

88.  Mr Chan explained that the Arcade would be guarded by security staff throughout the day.  They would be divided into morning, afternoon and night shifts.  For each shift, there would be scheduled and unscheduled patrol.  Security guards performing patrol duties would have to observe whether there was any litter or water on the floor, and other oddities.  Mr Chan added that at times when there was shortage of security guards, customer service ambassadors would have to double down and patrol the Arcade on top of their usual duties.

89.  Mr Chan then proceeded to set out in his statement the standard procedures adopted by the 1^st defendant regarding construction works at the Arcade.  First, tenants who wanted to renovate or reinstate their shops had to lodge their applications to the 1^st defendant.[12]  The 1^st defendant would assess the applications, taking into consideration the factors as set out in the Guidelines.  If an application was granted, a temporary work permit would be issued.[13]

90.  After issuance of the work permit, but before commencement of any construction work, staff of the 1^st defendant would hold a meeting with the tenant and its contractor.  The tenant and its contractor would be given a copy of the Guidelines, together with verbal directions from the 1^st defendant’s staff that they should: (1) heed the presence and safety of the visitors of the Arcade; (2) load debris properly onto the trolley, and secure the same with ropes, before conveyance of the same; and (3) designate 2 workers to man the trolley when transporting the debris, with one worker walking in front of the trolley to clear the path whilst the other worker was pushing the trolley.

91.  Apart from the above, the 1^st defendant would also require the tenant to surround the shop under construction with white hoarding. Work permit would be posted on the white hoarding by the staff of the 1^st defendant.  Rails would be placed, also by the staff of the 1^st defendant, around the white hoarding.  Furthermore, the workers of the contractor would be asked to register at the customer service counter every day when they arrived at the Arcade to perform their works.  However, the record book used at the time of the Works had been destroyed.

92.  In the present case, Mr Chan said that one Mr Tsang, a property manager of the 1^st defendant, was the staff who met with Mr Lau on 10 February 2014 (the “Meeting”), during which Mr Tsang handed the Letter and the Guidelines to Mr Lau.  Mr Chan added that the Route was designated by Mr Tsang and informed to Mr Lau during the Meeting.

93.  When asked by Ms Li as to whether rails could be placed along the entire Route, Mr Chan rejected the suggestion outright, citing the same reasons given by Ms Wong in this regard.

94.  Turning to the Accident, after the ambulance had arrived, and when the paramedics were attending to the plaintiff, Mr Chan inquired with the 3^rd defendant as to the course of events leading up to the Accident.  During the conversation, the 3^rd defendant told Mr Chan that he was employed by the 4^th defendant for the Works.  Prior to the Accident, the 3^rd defendant had been transporting materials removed from the air-conditioning system inside Shop 26 to the Loading Area via the Route.  Just before the Accident, the 3^rd defendant saw the plaintiff had her back towards him.  He shouted to the plaintiff, asking her to watch out.  At the same time, the 3^rd defendant was unable to stop the trolley that he was pushing, which led to the same colliding with the plaintiff.[14]

95.  After collecting from the 3^rd defendant his personal particulars and contact, Mr Chan reviewed the Video.  He observed and estimated that the trolley in question was about 4 feet x 2 feet in length and width respectively.  At the time of the Accident, the debris were neither wrapped nor tied up, and were stacked to the height of about 4.5 feet on the trolley.

96.  When asked by Ms Li, Mr Chan said in court that he had also inspected the trolley used by the 3^rd defendant at the scene of the Accident.  He repeated his estimation as to the size of the trolley, and, like Ms Wong, volunteered that the wheels of the trolley were made of plastic.

97.  Mr Chan remarked that throughout the time he worked at the Arcade, there were no report of other similar incidents involving the use of trolley.  He opined that the Accident was caused by the negligence of the 3^rd defendant, as he had failed to stop the trolley in time to avoid its collision with the plaintiff.

(5) Mr Chan’s evidence under cross-examination

98.  When cross-examined by Ms Tjia, Mr Chan gave the following evidence:-

(1) Shortage of security guards, and customer service ambassadors having to double down and perform patrolling duties, was a recurring phenomenon at the Arcade.

(2) It was not his duty to give instructions to the contractors.

(3) He was not responsible for handling and approving the application for the Works.  The application procedure set out in his statement was given based on his understanding of the usual practice adopted by the 1^st defendant, and from his past experiences.  Mr Chan added that when assessing the application, the 1^st defendant would not consider the standard of work of the contractors.  For renovation works, the 1^st defendant would only check the licences of the workers involved.  The same requirement did not apply to reinstatement works.

(4) Mr Chan did not attend the Meeting thus he did not know who actually attended the same.  He did not have first-hand knowledge as to what was said during it, and what instructions Mr Tsang had given to Mr Lau.

(5) Mr Chan was informed by Mr Tsang about the use of the Route for the Works.  He heard from the management office that Mr Tsang had verbally informed Mr Lau and his contractors about the Route.  He agreed that designation of the Route was not documented.  Mr Chan further explained that the Route was chosen because it was the shortest path from Shop 26 to the cargo lift located inside the exit, knowing that the use of trolley inside the Arcade could cause danger to the visitors.

(6) Mr Chan was referred to the Guidelines.  He confirmed that it was the 1^st defendant (in this case Mr Tsang) which would designate a route and the time for conveyance of construction materials.[15]  As to the latter, it would not be restricted to 9 to 11 am, as the same would not create much noise or disturbances to the Arcade.[16]  The cargo lift at the Exit would be in operation daily from 8 am to 11 pm.  The shops inside the Arcade would usually open at about 10 am, and close between 8 to 9 pm.  Against these backgrounds, Mr Chan agreed that the safest times for conveyance of construction materials and debris would be from 8 to 10 am, and 9 to 11 pm.  He also agreed that if the entire Route were to be blocked by rails, the best time to do so was from 8 to 10 am and 9 to 11 pm, since the tenants of Shops 24 and 25 would not be affected.

(7) Mr Chan admitted that the safety requirements concerning the use of trolley were neither set out in the Guidelines nor in the Letter.  The said requirements should have been given verbally to Mr Lau during the Meeting, but he could not say what precisely was said by Mr Tsang.  However, Mr Chan added that Ms Wong and himself would remind the workers of the 4^th defendant about the said requirements every morning when they were being registered at the service counter.  On the day of the Accident, only Ms Wong was stationed at the service counter, and she should have given the workers the same reminder.  As he was not present at the service counter, he could not confirm whether the reminder had been given, or if it was given, what exactly was said by Ms Wong.

(8) He confirmed that security guards and customer service ambassadors were at the material times instructed to pay special attention when patrolling near Shop 26.  The special attention, however, was confined to whether there were litter or water on the floor, and other oddities.

(9) Mr Chan later added that he received instructions from his superior on the supervision of the Works.  He was told to check on the Works every now and then, but with no requirement to station any security guard or customer service ambassador at Shop 26.  The instructions on how to supervise the Works, in particular on how the debris should be transported, were not documented.  Mr Chan said that those instructions were given to the staff during the morning briefings, which were attended by Ms Wong.  He agreed that if, when performing her patrol duty near Shop 26, Ms Wong focused only on whether there were water or litter on the floor and etcetera, she would be negligent in discharging her duties.

(10) He was referred to his Statement Report made on 12 September 2014 regarding the Accident (“Chan’s Statement Report”).  In it, he reported that at the time of the Accident, the trolley was loaded with debris removed from the air-conditioning system inside Shop 26. Mr Chan confirmed that the same was based on his own observation at the scene of the Accident.

(11) Apart from this, he affirmed to the observation he gave in Chan’s Statement Report that there was no warning signs or notices posted near the scene of Accident, reminding visitors to pay heed to the Works.  He agreed that there was no warning signs or notices to visitors that there could be trolleys containing debris coming out from Shop 26.  Although these warnings or notices could have been posted by the 1^st defendant, and despite that in his opinion that they could draw visitors’ attention to the Works and the presence of trolleys inside the Arcade, he did not know why these measures were not taken.

(12) Finally, on the assertions from the 2^nd and 4^th defendants that the workers had not adhered to the alleged requirements set by the 1^st defendant concerning the use of trolley, Mr Chan said he did not see them, thus he had not stopped them. 

99.  The cross-examination conducted by the 2^nd defendant on Mr Chan was unsurprisingly short.  In his answers, Mr Chan explained that, for renovation works, his usual duties were to ensure that the contractors would comply with the working hours prescribed and the requirements set out in the Guidelines.  He would also check on whether the contractors had worked in accordance with the sketch and plan as approved.  Any non-compliance with the same would be reported to the management office of the 1^st defendant.

100.  Mr Chan’s evidence, when cross-examined by Mr Ng, are reproduced below.  For avoidance of repetition, the questions and their corresponding answers that are similar or identical in nature to those asked and given during Ms Tjia’s cross-examination of Mr Chan are omitted:-

(1) According to his recollection, the workers of the 4^th defendant registered for their attendance at the service counter at about 8:30 am on the day of Accident.  Mr Chan said that the process of registration would take about 10 minutes, as reminder on the safety requirements would be given to the workers.  However, the registration book would not record down what reminders were given to the workers.  Mr Chan agreed that the registration books were important documents, but explained that it was the policy of the 1^st defendant to have them destroyed after a certain period of time, as the same contained personal data of the workers.

(2) Following on the preceding answers, Mr Chan clarified that the prescribed time for the performance of the Works on that day was from 9 to 11 am.

(3) At the material time, only Ms Wong and Mr Chan were on duty at the Arcade.  Mr Chan agreed that it would be safer to have a staff member stationed at Shop 26 providing warnings to visitors, but there was insufficient manpower to do so.  Mr Chan further explained that his duty on the day in question was limited only to patrolling the Arcade, during which he had seen the workers of the 4^th defendant using trolleys to convey debris via the Route.  However, he did not know whether the workers had done so for about 30 times prior to the Accident as alleged.

(4) Mr Chan agreed that rails could be placed along the Route, and sufficient rails were available to achieve this purpose.  However, he shared Ms Wong’s reservation in adopting such arrangement.

(5) Although Mr Chan agreed that carpets could be placed along the Route and served as a warning to visitors about the Works, he also considered them to have their disadvantage, as the visitors could be tripped by the same.  Come what may, he did not know whether his superior had considered adopting such arrangement for the Works.

(6) Mr Chan agreed that he had never told the 4^th defendant or his workers about the need to tie the debris to the trolleys.  He also did not tell the 4^th defendant or his workers to designate 2 workers to man the trolley when conveying the debris.  However, he disagreed with Mr Ng that the 4^th defendant was never informed about the same, citing that either his colleagues or Mr Tsang should have given these instructions to the 4^th defendant.

(7) Mr Chan further agreed that if the debris to be transported would not fall-off easily, there was no need to tie them to the trolleys.  In spite of this, he disagreed with Mr Ng that because the debris which the 3^rd defendant was transporting at the time of the Accident were not bulky or heavy there was no need to tie them to the trolley.

(8) As to the requirement that trolley should be manned by 2 workers, Mr Chan explained that the worker at the front could serve as the eyes of the worker pushing the trolley, as the latter’s view could be blocked by the debris stacked on the trolley.  Moreover, the worker at the front could also ask any visitors who wandered into the Route to make way for the trolley to pass through.  Mr Chan agreed that this arrangement might not be absolutely necessary, but it would be much safer for the visitors in the Arcade.  Mr Chan again disagreed with Mr Ng that because the debris which the 3^rd defendant was transporting at the time of the Accident were neither bulky nor heavy, there was no need to adopt such arrangement.

(9) Finally, Mr Chan agreed that he did not measure the size or the weight of the debris that the 3^rd defendant was transporting when he arrived at the scene of the Accident.  His priority at that time was to check on the condition of the plaintiff.

(6) Re-examination of Mr Chan

101.  Mr Chan was not re-examined by Ms Li.

(7) Examination-in-chief of Mr Chow

102.  The 2^nd defendant did not give evidence at the trial.  Instead, she called upon her husband, Mr Chow, to do so in support of her case.

103.  At the trial, Mr Chow first adopted his witness statement as part of his evidence-in-chief.  What he stated in it largely mirrored the 2^nd defendant’s pleaded case.

104.  As a matter of background, Mr Chow explained that he had worked in the industry for over 20 years.

105.  Regarding the Works, he repeated that after the 2^nd defendant successfully obtained the project from Mr Lau, the job duties were reduced from reinstatement to simple demolition.  Thus, almost the whole task was subcontracted to the 4^th defendant.  On top of demolition, the workers were required to transport away the materials and debris removed from Shop 26.  In return, the 4^th defendant was to receive about HK$20,000.00 as his project fee.

106.  Mr Chow echoed the 2^nd defendant’s pleaded case that there had been numerous previous co-operation with the 4^th defendant on demolition works, with satisfactory results.  Demolition work, as the name of his business revealed, is the field which the 4^th defendant specialised in.  For these reasons, Mr Chow considered the 4^th defendant a competent and dependable independent contractor, thus not only subcontracting the Works to him, but also left all supervision of the Works, and instructions and trainings to be given to the workers, in the hands of the 4^th defendant.

107.  As to the safety requirements concerning the Works, Mr Chow said when he attended the Arcade for the first time in early March 2014, he met with a staff from the 1^st defendant.  The latter told Mr Chow that the 2^nd defendant was required to take out the necessary insurance policy for the Works, surround Shop 26 with white hoarding, and that the Works must be performed within the time prescribed by the 1^st defendant.

108.  Turning to the use of trolley, he emphasised that there were no safety guidelines issued by the Labour Department or other institution.  It would be left to the worker’s own device, for instance, regarding the height of the materials to be stacked on the trolley and the speed that he should apply in pushing the trolley.  Nonetheless, the worker should still be careful when using the trolley, something that Mr Chow had reminded both the 3^rd and 4^th defendants when he was at the Arcade.

109.  As to the Accident itself, neither the 2^nd defendant nor himself were present at the Arcade when it happened.  They had to leave early as the 2^nd defendant, who was pregnant at that time, felt unwell.  Later on that day, Mr Chow received a telephone call from someone who worked for the 1^st defendant, informing him of the Accident.  The 4^th defendant contacted Mr Chow at the evening, telling Mr Chow that the matter should have been settled.  Regardless, Mr Chow said he had reported the Accident to his insurer.

110.  Mr Chow alleged that, since then, he had heard nothing further on the Accident.  This was so until he received the Writ of Summons in this action.  He felt unfair that the 2^nd defendant is now being sued, since he received no notification from any of the parties involved in this case.  He also felt frustrated by the 1^st defendant’s rejection to provide him with the particulars of the plaintiff and the Video.

111.  In his witness statement, Mr Chow reiterated that the 2^nd defendant had complied with all safety measures required by the 1^st defendant.  There was nothing more that needed to be done, and/or could have been done by them, which would have prevented the Accident from happening.  He opined that the 3^rd defendant was the primary culprit in the Accident, with the 1^st and 4^th defendants taking the secondary roles: the latter being negligence for his failure to properly manage the 3^rd defendant; the former having failed to warn visitors of the Arcade about existence of the Works.  Moreover, he argued that any control that the 2^nd defendant could exercise at the material times was limited to the activities inside Shop 26.  As the Accident happened at the common area of the Arcade, the 2^nd defendant should not be held liable as an occupier of the same.

112.  Apart from what he had said in his witness statement, Mr Chow gave the following testimony at the trial:-

(1) Prior to the commencement of the Works, Mr Chow had to: (a) fill-in certain documents; (b) attend a briefing on the safety requirements; and (c) pay a deposit.

(2) On top of the above, he confirmed that he had received and read some written guidelines received from the 1^st defendant about 3 days prior to the commencement of the Works on 16 March 2014.  When the Letter and the Guidelines were shown to him in court, Mr Chow recalled that the written guidelines he received from the 1^st defendant looked like the Letter instead of the Guidelines.

(3) As to the said briefing on safety requirements, Mr Chow said it took place prior to the purchase of the 3^rd party insurance, which in turn was done about 3 to 4 days before commencement of the Works.  He recalled that the briefing was given by a male staff of the 1^st defendant with the surname of “Tsang”.  During the briefing, he was told: to purchase 3^rd party insurance for the Works; to ensure that the Works should be done by at least 2 workers and within the confines of Shop 26; to erect white hoarding around Shop 26; the workers had to be careful not to break the glass window of Shop 26 and etcetera; not to remove the fire safety system installed inside Shop 26; not to damage anything inside the Arcade; not to affect the operation of the Arcade; must use the Route and comply with the prescribed time for transportation of materials and debris removed from Shop 26; the workers must register at the service counter whenever they enter or exit the Arcade; the 2^nd defendant would be responsible for the interior of Shop 26; nothing could be placed outside Shop 26; no advertisement could be posted on the white hoarding.  Mr Chow was then warned that if the said requirements were not complied with, the Works would be suspended by the 1^st defendant.

(4) Mr Chow clarified that it was the same Mr Tsang who telephoned and informed him of the Accident on 20 March 2014.  It was also Mr Tsang who rejected Mr Chow’s request for the Video and the plaintiff’s personal particulars.

(8) Mr Chow’s evidence under cross-examination

113.  Ms Tjia’s cross-examination of Mr Chow focused first on the latter’s action post-Accident.  Mr Chow repeated that he had kept in contact with the 4^th defendant after the Accident, trying to obtain the personal particulars of the plaintiff as he had to report the same to the 2^nd defendant’s insurer.  Mr Chow was informed by the 4^th defendant that he had visited the plaintiff at the hospital.  However, the family members of the plaintiff were at the time quite emotional, thus her personal particulars could not be obtained.  Mr Chow did try to follow up on the matter with Mr Tsang but, as earlier stated, bore no fruit.  He added that his insurer also did the same without any success.

114.  When Ms Tjia suggested that the reason he devoted so much time on these episodes was just to show that the 2^nd defendant did not ignore the Accident, Mr Chow countered by saying that he was more concerned about reporting the matter to the insurer.  He cried foul that no one, including the plaintiff, gave the 2^nd defendant notice of the intended claim.

115.  Ms Tjia’s next line of cross-examination focused on the use of trolley.  She first clarified with Mr Chow as to the time he or the 2^nd defendant spent overseeing the Works on 19 and 20 March 2014.  In reply, Mr Chow said that he attended the Arcade on 19 March 2014 at about 9:00 am and remained there until about 5:30 pm.  According to him, this was his routine when attending work sites.  He recalled that the 2^nd defendant was not present on that day.  However, on 20 March 2014, both the 2^nd defendant and Mr Chow attended the Arcade at about 9:00 am, but had to leave early as explained above.

116.  On both days, Mr Chow witnessed the 3^rd and 4^th defendants pushing trolleys of debris from Shop 26 to the Exit using the Route.  At times, they would adopt the method of one pushing the trolley from behind whilst the other would look out for debris falling from the trolley.  He also saw the 3^rd and 4^th defendants sometimes pushing the trolley singly.

117.  When asked, he repeated that there were no guidelines as to how a trolley should be pushed.  He only asked the 4^th defendant and his workers to be careful when doing so, in particular, to use the Route and not to collide with the visitors.  Mr Chow thought that it would be impossible for the 2^nd defendant, the main contractor, to give specific instructions to the 4^th defendant as to how to perform the task.  He backed it up by saying that a main contractor would sub-contract certain tasks because it had no knowledge about them.  Thus, Mr Chow considered that the duties of a main contractor were limited to negotiation with the client and communication with the subcontractor.  For these reasons, neither the 2^nd defendant nor Mr Chow himself would interfere with the 4^th defendant’s discretion as to whom he hired for the Works and how he trained his workers.

118.  However, Mr Chow agreed that the higher the goods were stacked on the trolley, the easier it would be for them to shift and tumble down.  It would also become more likely that the worker’s sight would be blocked by the goods, but that would depend on the height of the worker.  Mr Chow agreed as well that with goods untied and stacked at a height of 4.5 feet on the trolley, it would post a danger to the visitors of the Arcade.  He was agreeable to the suggestion that, with ample time to complete the Works, there was no need for the 3^rd defendant to stack the debris up to a height of 4.5 feet at the time of Accident.

119.  Mr Chow’s view was sought as to whether it was safe for the 3^rd defendant to push the trolley in the way which he did immediately before the Accident.  Mr Chow considered this to be subjective, citing again that the workers would be left to their own device.  Nevertheless, he considered what the 3^rd defendant did was unreasonable, as the debris stacked to such height and untied to the trolley could bring the risk of them falling and dirtying the floor of the Arcade.  Mr Chow added that if he was at the scene, he would have stopped the 3^rd defendant from doing so via the 4^th defendant.  Moreover, Mr Chow said that it was fundamental knowledge and safety requirement that the trolley should be manned by 2 workers, one pushing the trolley and one to look out for any debris falling from the trolley.

120.  Following up on the above comments, I asked Mr Chow whether he had stopped the 3^rd defendant or the 4^th defendant when he saw on 19 March and 20 March 2014 that they had at times pushed the trolley singly.  Mr Chow answered in the negative, claiming that when they did so, the debris stacked on the trolley were not so high to render it unsafe.

121.  Predictably, Ms Li’s focus during the cross-examination was on the safety instructions given by the 1^st defendant to Mr Chow during and after the meeting in early March 2014.

122.  Regarding the meeting, Mr Chow provided the following additional evidence:-

(1) The meeting lasted for about 30 minutes.  It was attended also by his insurer and Mr Lau.

(2) Apart from erecting the hoarding around Shop 26, and not to remove the fire safety system therein, Mr Tsang told Mr Chow that the original fixtures inside Shop 26 should not be removed.

(3) Mr Chow was told about the Route at the meeting.  It was described by Mr Tsang as the shortest course from Shop 26 to the Loading Area.  It was on 19 March 2014 that Mr Tsang walked him through the Route.  Mr Chow vaguely recalled that the 4^th defendant should also be there when this happened.

(4) He was not given or shown a copy of the Letter.  Mr Tsang simply held it up when he was telling Mr Chow what he had to do.

(5) Mr Tsang did not inform Mr Chow the reason for having hoarding around Shop 26.  However, from his own understanding, it was a compulsory measure to prevent breaking of glass and for any shattered glass to spill out to the common area of the Arcade.

(6) Initially, Mr Chow agreed with Ms Li that Mr Tsang requested for debris to be tied to the trolley. He later changed his answer, saying that no such request was ever made by Mr Tsang.

(7) There was no request from Mr Tsang that the trolley must be manned by 2 workers.

(8) Notwithstanding the above, Mr Chow agreed that Mr Tsang did ask him to be careful when using trolley inside the Arcade.

123.  Other than the meeting, Mr Chow was asked whether safety reminders were given at the service counter by the staff of the 1^st defendant.  He replied that none was given to him on 19 March 2014 when he registered for his attendance.  As to 20 March 2014, he did not register at the service counter, as he considered himself an observer on that day rather than the project manager of the Works.

124.  Mr Chow’s answer led to a new line of questions from Ms Li, namely his role in the Works.  Mr Chow said that as a project manager, he had to supervise on the progress of the Works, to ensure that there was no damage to the interior of Shop 26, and only those that could be removed were demolished.  He had also conveyed to the 4^th defendant Mr Tsang’s warning that the workers should take care not to collide with visitors of the Arcade when pushing the trolleys.  Finally, he reminded the 4^th defendant to ensure his and his workers’ own safety.

125.  Upon Ms Li’s inquiries, Mr Chow again confirmed that he had seen workers of the 4^th defendant pushing trolleys of debris out of Shop 26.  He agreed that the debris were not tied to the trolleys, but he disagreed that the debris were stacked very high on the trolleys.  He repeated that, at times, the trolleys were only pushed by one worker.  He did not stop the worker from doing so, but he had voiced his concern with the 4^th defendant.

126.  In answer to Ms Li’s question, Mr Chow said that there should be a total of 3 workers, including the 3^rd and 4^th defendants, who participated in the Works.  He believed that the third worker spent most of his time at the Loading Area.

127.  As to the Route and the railings surrounding Shop 26, Mr Chow said he received no complaint from the 4^th defendant that they were unsafe.  He added that he did not view the same as being unsafe.

128.  Mr Chow recalled that a staff of the 1^st defendant attended Shop 26 on 19 March 2014.  The staff stayed inside Shop 26 for 4 to 5 minutes.  Mr Chow did not know the name of the staff, but he was in uniform.  Mr Chow was told by the staff that he was from the engineering department, and reminded Mr Chow that the fire exit sign inside Shop 26 should not be removed.  During the conversation, nothing related to work safety was mentioned.  Other than this episode, Mr Chow said no one else from the 1^st defendant attended Shop 26 on 19 and 20 March 2014, and if there were, the 4^th defendant had not informed him about it.

129.  Ms Li then turned her attention to how the 2^nd defendant selected her subcontractors.  Mr Chow’s answers to her questions were simple.  There were 5 to 6 subcontractors that the 2^nd defendant would often use for demolition works.  They would remain in the 2^nd defendant’s list so long as no accident happened in the projects sub-contracted to them.  The 2^nd defendant would not interfere with their decision as to whom they hire, inquire into the quality of the workers that they hired, or whether the workers had the safety awareness necessary for the tasks at hand.  But if any accident happened during a subcontractor’s watch, the subcontractor would be removed from the 2^nd defendant’s list.

130.  Regarding the Accident, Mr Chow agreed that when he and the 2^nd defendant left the Arcade, he did not delegate his duty to his colleague.  In other words, there was no project manager at Shop 26 to supervise the Works.  Mr Chow said there was no need for a project manager to be there.  Despite such answer, Mr Chow denied Ms Li’s suggestion that he did not attend the Arcade on 20 March 2014.  He paid the balance of the project fees to the 4^th defendant at the Arcade on that day.

131.  Finally, Mr Chow was cross-examined by Mr Ng.  By reference to his witness statement[17], Mr Ng was able to get Mr Chow to agree that, as a project manager, he had to ensure that the Works would not create any danger to the workers and visitors of the Arcade.  And that was the reason why he attended the Arcade at about 9:00 am on 19 March 2014 and remained there until about 5:30 pm.  Mr Chow also intended to stay at the Arcade from 9:00 am up to completion of the Works on 20 March 2014, but his plan was abandoned due to 2^nd defendant’s debility.

132.  Mr Chow confirmed that the Works were completed on 20 March 2014, but disagreed that the Works were scheduled to be completed within 2 days.  He also denied that he gave only 2 days for the 4^th defendant to complete the Works.

133.  When asked, Mr Chow agreed that there were no strict rules that, when using a trolley, the materials loaded thereon must be tied to the trolley or for the trolley to be manned by 2 workers.  Whether these acts were required would depend on the circumstances of each case and the judgment of the worker.  As in the present case, despite of the Accident, Mr Chow agreed it did not automatically mean that the 3^rd defendant erred in not tying the debris to the trolley, nor would it represent that the 3^rd defendant should have pushed the trolley only with the aid of his co-workers.  Mr Chow followed this up with the admission that he did not request the 4^th defendant to make sure his workers to tie the debris to the trolley every time they transport the debris.  However, when he was asked whether he also did not request that the trolley should be manned by 2 workers every time the debris were transported, Mr Chow disagreed.

134.  Referring to his witness statement,[18] Mr Chow accepted Mr Ng’s suggestion that as a project manager, he would consider about the safety of work, taking into account the surrounding environment of the site and the equipment to be used.  He did not, however, consider whether pushing the trolley along the Route would present any danger to the visitors of the Arcade.  At one point during the cross-examination, Mr Chow confessed that his focus was on whether the Route was safe and being the shortest path to the Loading Area.  He opined that, by doing so, he was discharging his duties owed towards his client, ie Mr Lau.  Mr Chow denied that he owed any duty to the 4^th defendant or his workers.  He later changed his stance, saying that his duties would include the safety of all, including the 4^th defendant’s workers, occupants and visitors of the Arcade.  Mr Chow even said that his duties would extend to the occupants of the residential blocks, as foul smell might emanate from the Works and he had to reduce such risk.

135.  In light of what he said, Mr Ng queried why Mr Chow did not delegate his duties to someone else who worked for the 2^nd defendant before they left early on 20 March 2014.  To this, Mr Chow replied as the Works had been subcontracted, the duty to supervise the workers was vested on the 4^th defendant.  Mr Chow repeated that, on 20 March 2014 when he attended the Arcade, he was there only as an observer, not a project manager, although he was ready to do so.

136.  Regarding the Route, although he did not find it to be unsafe, Mr Chow agreed that it would be much safer if rails were placed along the entire Route.  However, Mr Chow did not speak his mind to the 1^st defendant, as he thought such additional measure was unnecessary, and generally speaking, it would be difficult for contractors to request a management company to do anything.  Come what may, as the Route was situated at the public area of the Arcade outside Shop 26, it was not within the control of the 2^nd defendant.

137.  Continuing on with this topic, Mr Chow was then asked by Mr Ng as to what further measures could be taken to improve the safety of the Route.  Mr Ng’s suggestion of placing wooden boards on the floor of the Route was rejected by Mr Chow.  Mr Chow explained that he had seen wooden boards being placed on the floor of public places by management companies, in order to prevent damage to the floor.  But he opined that even if this was done, it would not have the suggested effect or serve the suggested purpose of bringing awareness to visitors the existence of some construction works within the vicinity.

138.  Close to the end of Mr Ng’s cross-examination, a case was put to Mr Chow that the 4^th defendant had never told him the Accident could be settled, to which Mr Chow denied. But he agreed that: the 4^th defendant gave him no information about the plaintiff’s particulars; plaintiff’s injuries; whether the plaintiff would lodge any claim due to the Accident, and if so the amount being sought; and the 4^th defendant himself did not acquire the above information from the plaintiff or her family.

139.  Mr Ng concluded his cross-examination of Mr Chow by asking him questions on the insurance policy purchased for the Works.  Mr Chow confirmed he had reported the Accident to the insurer, but he was told that the 2^nd defendant would not be covered.  He denied that it was due to the late report of the Accident to the insurer, but instead because of the non-provision of the plaintiff’s personal information.

(9) Re-examination of Mr Chow

140.  Mr Chow was not re-examined by the 2^nd defendant.

(10) The 4^th defendant’s evidence-in-chief

141.  The 4^th defendant adopted his witness statement as part of his evidence-in-chief.  In it, he affirmed that the Works were performed at the Arcade, and were completed within 2 days, ie from 19 to 20 March 2014.

142.  On 20 March 2014, he and his workers must work within the time frame from 8 am to 11 am, as required by the 2^nd defendant.  As such, they attended the Arcade at about 8:00 am.  They had been using the Route to transport the debris removed from Shop 26 to the Loading Area.

143.  The 4^th defendant did not dispute that the 3^rd defendant was his employee at the material time, and repeated the 3^rd defendant’s competence and qualification as pleaded in his defence.  The 4^th defendant said, because of the 3^rd defendant’s experiences and in view of the simplicity of the Works, he did not find it necessary to provide further training, supervision and instruction to the 3^rd defendant.

144.  As to the Accident, the 4^th defendant was at the Loading Area when it happened.  He was informed about it by the 3^rd defendant afterward.

145.  The 4^th defendant recalled that, by the time the Accident happened, the Works were close to completion.  The weightier debris had already been removed from Shop 26 and loaded onto the truck.  As such, the 4^th defendant believed that the debris the 3^rd defendant were transporting at the time when the Accident happened should be very light, negating the need to tie them to the trolley.  For the same reason, the 4^th defendant did not find it necessary to have 2 workers assigned to push the trolley.  He further clarified that there was no instruction coming from anyone that the debris must be tied to the trolley or the trolleys should be manned by 2 workers.

146.  When asked by Mr Ng, the 4^th defendant supplemented that the debris transported by the 3^rd defendant at the time of the Accident were some cottons removed from the air-conditioners.

147.  Since he was not a witness to the Accident, the 4^th defendant reviewed the Video provided by the 1^st defendant and narrated on the same in his witness statement.

148.  He first admonished the plaintiff for making sudden and reckless entry into the Route, without heeding the presence of the 3^rd defendant, who was pushing the trolley along the Route. He blamed the plaintiff for not paying attention to her surroundings, having her back to the 3^rd defendant and the trolley, and having failed to swerve away from them. As the 3^rd defendant had just come out from Shop 26, he had not picked up much speed before the collision.

149.  The 4^th defendant then made reference to Chan’s Statement Report, repeating that the 3^rd defendant had shouted warnings to the plaintiff immediately prior to the Accident.  This showed, the 4^th defendant argued, that the 3^rd defendant’s sight was not blocked by the debris stacked on the trolley.  As such, the Accident was caused by the recklessness of the plaintiff.

150.  That being said, the 4^th defendant did not exempt the 1^st and 2^nd defendants from his criticisms.  It was said that they should have implemented a system which guaranteed the safety of visitors who walked within the vicinity of Shop 26 and the Route.  In particular, the 4^th defendant accused the 1^st and 2^nd defendants for: not stationing any person there to prevent visitors from entering into the Route and to warn them about the Works; failing to aid his workers in performance of the Works; failing to erect rails along the Route; failing to post notices and warning signs; and failing to place any anti-slippery carpets or other materials along the Route to prevent visitors from slipping and/or give warnings to visitors about the Works.  The above omissions, in the 4^th defendant’s view, also led to the Accident.

(11) The 4^th defendant’s evidence under cross-examination

151.  The 4^th defendant was cross-examined first by Ms Tjia.  His evidence is summarised below:-

(1) Ms Tjia’s cross-examination first focused on Mr Chow’s role in the Works.  The 4^th defendant agreed that the same methods of work were adopted by him and his workers on 19 and 20 March 2014.  He confirmed that on both days, the load stacked on trolleys would be about 4 feet odd high.  Mr Chow was well aware of the methods and had never said to the 4^th defendant that the same were unsafe.

(2) On to the system adopted for the Works, the 4^th defendant volunteered that, as a rule, the goods loaded on a trolley would normally be stacked up to the chin of the worker.  Although the rule could be relaxed where there were not a lot of people around, they should nonetheless be stacked no higher than the worker’s eye level.  The 4^th defendant continued that, conversely, where there were a lot of people within the vicinity, the height of the goods stacked on the trolley should be lower.

(3) The 4^th defendant agreed that, even if the goods were stacked only up to the chin of the worker, a large part of his view towards the front would be blocked.  He concurred with Ms Tjia that the safest method was to make more trips with lower stack of goods loaded on the trolley.

(4) Furthermore, the 4^th defendant said that poles could be installed on the trolley to hold in place and prevent debris from falling off, and that the 3^rd defendant had done the same at the material time.[19]

(5) Although, including himself, there were altogether 3 workers conveying debris from Shop 26, he could not afford to assign 2 workers to man the trolley due to the time constraint for completion of the Works.

(6) As to the 3^rd defendant’s qualification, the 4^th defendant agreed that having a Safety Certificate was a minimum requirement from the Government.  Without it, a worker simply could not engage in works of similar nature.  He further acknowledged that the Safety Certificate would be issued after a person had attended a lecture and sat for an examination.  The whole process could be completed within one day.

(7) The 3^rd defendant had served under the 4^th defendant for 8 to 10 times, spanning about 8 to 10 days, prior to the Works.  After much probing, the 4^th defendant admitted he heard from the 3^rd defendant that the latter had over 30 years of experiences in the same field.

(8) Regarding the Accident, despite not being at the scene when it happened, the 4^th defendant was certain that loaded on the trolley was nothing more than one empty box and some cottons removed from the air-conditioners.  After the Video was played in court[20], the 4^th defendant changed his answers, accepting that 2 boxes were loaded onto the trolley, and that the same contained vents removed from air-conditioners, apart from the cottons.

(9) The 4^th defendant maintained that the Accident was caused by the recklessness of the plaintiff.  He was adamant that the plaintiff should not have crossed path with the 3^rd defendant, and she should have turned her head and checked the blind spot before changing lane, despite his agreement that the corridors of the Arcade were not divided into lanes.  That being said, he opined that the 3^rd defendant could have been partially negligent.

152.  The 4^th defendant gave the following evidence given when he was cross-examined by Ms Li:-

(1) The 4^th defendant confirmed that he had worked in this industry for over 20 years, primarily undertaking demolition works in residential premises, shops and shopping malls.  Regarding the latter, he had undertaken demolition works in malls like the Taikoo Shing Plaza and the Harbour City.  He considered them to be large-scale shopping malls, and in comparison, the Arcade is mid-scale.  He accepted that the manpower for management of the malls would vary depending on their scales.

(2) Although the 4^th defendant appreciated that different malls have different requirements for renovation and/or reinstatement works, he disagreed with Ms Li’s suggestion that it was exceptional and/or uncommon for a manager to station a staff member at the site which was undergoing such work.  He opined that this arrangement was necessary to ensure the safety of the visitors, and managers of most of the malls that he had worked in adopted this system.

(3) Turning to the Works, the 4^th defendant agreed that the same was a small size project, and was scheduled to be completed within 2 days.

(4) The 4^th defendant was asked about the wages that he paid to his workers for the Works.  He explained that each of the workers was paid HK$1,100 per day.  Adding to it the meal allowance of HK$50 per day, the workers would receive HK$1,150 from him per day.  If the workers were to work at night, ie after 5:00 pm, their daily wages would increase to HK$2,200 per day.  He admitted that if the Works could only be performed at night, he would suffer a loss based on the project fee he received.

(5) Ms Li suggested, and the 4^th defendant agreed, that the time limit imposed on the Works, ie from 9:00 to 11:00 am, was restricted to tasks which would create noise.  The 4^th defendant also agreed that conveyance of debris was not considered to be noisy task, thus not caught by the time limit.

(6) On the question of supervision and training, the 4^th defendant admitted that his workers would determine by themselves on how to use the trolleys.  There was no need to render further training to them, including the 3^rd defendant.  In addition, there was neither the need to remind them to keep a safe distance with the visitors, nor the need to remind them to tie the load to the trolley.  That being so, the 4^th defendant did ask his workers to be careful and to give way to visitors when pushing the trolleys.  He also agreed that, if there were more than one item loaded onto a trolley, it would be safer for the items to be tied to the trolley.  He denied there being any reminder from Mr Chow that he and his workers should mind the safety of the visitors at the Arcade.

(7) The 4^th defendant and his workers did register at the service counter of the Arcade on 19 and 20 March 2014.  Nevertheless, they were not reminded by the 1^st defendant’s staff stationed thereat of any safety requirement when using the trolleys.  In particular: no one told them to mind the visitors when conveying the debris; there was no instruction to tie the debris to the trolleys; there was no requirement that the trolley should be manned by 2 workers, one pushing the trolley from the back, and one pulling the trolley at the front.

(8) The Video was again played to the 4^th defendant.[21]  The same showed there were 3 trolleys.  The 4^th defendant agreed that there were 3 workers, including himself, performing the Works on 20 March 2014.  For each of the conveyance captured, the trolley was manned by a single worker.  The Video also showed that the 4^th defendant had pushed 2 empty trolleys at the same time.[22]  The 4^th defendant again relied on the absence of any official guidelines on the use of trolley to justify what he did was safe.

(9) Apart from the above, a man in suit was also seen entering into Shop 26 in the Video.  When asked, the 4^th defendant replied he was not aware of this at the material time. He did not know the man, and none of his workers informed him about this.  He did not recall that any of the staff from the 1^st defendant had attended Shop 26 on 19 and 20 March 2014.

(10) As to the Route, the 4^th defendant disagreed with Ms Li’s suggestion that access to Shops 24 and 25 would be blocked if rails were erected along the entire Route.  The 4^th defendant refuted that there were not a lot of people inside the Arcade at the material time.  And for the same reason, the 4^th defendant did not find the Route to be unsafe without the rails.  He thus found it unnecessary to lodge any complaint for the lack of them to Mr Chow and the 1^st defendant.  Come what may, he opined that he was not in the position to make any suggestion to the 1^st defendant.  He rejected the suggestion that he was duty bound to report to the 1^st defendant any danger he observed when using the Route.

(11) Finally, the 4^th defendant said that he informed Mr Chow about the Accident at about 5:00 pm on 20 March 2014.  At that time, he was visiting the plaintiff at Princess Margaret Hospital.  He left his telephone number with the plaintiff’s family before he left.

153.  The 2^nd defendant elected not to cross-examine the 4^th defendant.

(12) Re-examination of the 4^th defendant

154.  There was no re-examination by Mr Ng.

155.  The parties’ cases on liability was concluded.

ANALYSIS

156.  As a preview, after having considered all evidence before me, I find that the liabilities of all defendants are established.  In my view, this is a classic case of “the blind lead by the blind”.  When the ignorant was led by the ignorant, it ends in disaster.

157.  The reasons for my decision are set out below.

Negligence of the 3^rd defendant

158.  Despite that judgment on liability has been entered against the 3^rd defendant, it is necessary for this court to render its view on his negligent acts, as it will in turn shed light on the 4^th defendant’s vicarious liability.

159.  I have no doubt that the 3^rd defendant’s manner of handling the trolley was dangerous.  First, there is no dispute amongst the parties that the debris and carton boxes were stacked up to the height of 4.5 feet.  One could observe from the Video that the top of the load reached the chest of the 3^rd defendant.  I accept the plaintiff’s case that the 3^rd defendant’s view toward the front when he was pushing the trolley was at least partially obstructed.  I disagree with Mr Ng’s submissions that his sight would not be blocked at all.  Depending on the height of the visitor and the distance between them, the debris and boxes stacked up to the height of 4.5 feet could provide some obstruction to the 3^rd defendant’s view toward the visitor.  Second, with the debris and boxes not tied to the trolley, it is conceivable that the 3^rd defendant’s attention at the material time could be divided between the Route and the load, apprehensive that the latter might tumble and fall during the transportation.  It is plausible that all these had led to the 3^rd defendant being slow to spot the plaintiff who was walking in front of the trolley.

160.  Mr Chan reported that the 3^rd defendant said he had shouted warnings to the plaintiff and tried to stop the trolley prior to the Accident.  Although he was not at the scene when the Accident happened, this is also a defence relied upon by the 4^th defendant.  Mr Ng in his submissions suggested that Chan’s Statement Report should be seen as contemporaneous record of the warning shouted by the 3^rd defendant at the scene and that he had tried to stop the trolley.  I do not agree.  At most, it was a contemporaneous record of what the 3^rd defendant had said to Mr Chan after the Accident.  Veracity of the 3^rd defendant’s assertion could not be confirmed.  Taking what Mr Chan and the 4^th defendant said to the highest, they are nonetheless second-hand information: not much weight could be placed on them when the 3^rd defendant neither gave evidence nor was his evidence tested by way of cross-examination.

161.  Even assuming that the 3^rd defendant did shout his warning (and the plaintiff could not hear it due to her partial hearing impairment[23]), I am not persuaded it would immune him from liability.  It is unrealistic to expect that a pedestrian could, within a matter of seconds, realise that a warning was directed at him or her, especially if there were other pedestrians within the vicinity.  It is improbable that a pedestrian could, within a matter of seconds, realise that a warning was directed at him or her, especially if the warning came from behind and there were other pedestrians with the vicinity.  It is almost impossible that a pedestrian could, within a matter of seconds, realise that a warning was directed at him or her, especially if the pedestrian is advanced in age, the warning came from behind, and there were other pedestrians within the vicinity.  It is then impracticable to expect an elderly pedestrian to veer off the Route within a matter of seconds upon heeding the warning.

162.  Against these circumstances, the 3^rd defendant’s failure to swerve and/or stop the trolley is much magnified. Nothing has been reportedly said by the 3^rd defendant as to why he could not have done so in time.  The only excuse which could be summoned came from the 4^th defendant, and by Mr Ng in his submissions, alleging that the plaintiff made sudden and reckless entry into the Route.  This, however, was controverted by the Video.  As I have narrated, the plaintiff had been walking in front of the 3^rd defendant for 5 seconds before the collision.  It showed the plaintiff started walking diagonally to her left after she reached the end of the rails near Shop 25.  She was inching closer to the windows of Shop 25, gradually entering into the Route.  She made no sudden movement or abrupt change of direction when she was doing so, negating any suggestion that the Accident could have been caused by the same.

163.  In light of all these, it begs the question that, but for the load on the trolley making it too heavy to manoeuvre or he was pushing the trolley at a speed too fast in the circumstances or his view to the front where the plaintiff was located being obstructed or his attention diverted by the load stacked on the trolley, why the 3^rd defendant could not swerve and/or stop the trolley in time to avoid crashing into the plaintiff.  Of course, there is also the possibility that stopping or swerving the trolley never entered into his mind, expecting the plaintiff to heed his warning and gave way to him, which, as aforesaid, is clearly unrealistic, impracticable, and dangerous.

164.  Mr Ng in his submissions argued that the trolley at the material time carried nothing more than empty boxes and light weight debris, therefore negating the need to tie them to the trolley.  Under this line of argument, it seems to me that Mr Ng was relying on what the 4^th defendant originally suggested, ie the debris were cottons removed from the air-conditioners.  However, the 4^th defendant had already changed his evidence after reviewing the Video in court, agreeing that the boxes actually contained vents removed from the air-conditioners, apart from cottons.  I hear no further suggestion from the 4^th defendant that the vents were light-weight.  As such, the foundation for such argument has collapsed.

165.  Moreover, it is equally inexplicable that, if it was accepted that the 3^rd defendant did shout his warning to the plaintiff, he would have sufficient time to do so but not to stop and/or swerve the trolley.  The 3^rd defendant should have focused on stepping on the “brake” rather than sounding the “horn”.

166.  For these reasons, I find that: the 3^rd defendant had stacked the debris and boxes on the trolley at a height which had obstructed his view toward the front; he should have but failed to tie the debris and boxes to the trolley; he had failed to pay heed of the existence of the plaintiff who was walking in front of him; he had failed to give sufficient warning to the plaintiff on his approaching; even assuming that he had shouted warning to the plaintiff, he had not allowed sufficient time for the plaintiff to react to it; he was pushing the trolley at a speed too fast under the circumstances; and he failed to stop and/or swerve the trolley in time to avoid the Accident.  Accordingly, his liability is confirmed and his negligence gave rise to the Accident.

Liability of the 4^th defendant

167.  The 4^th defendant’s liability is two-fold.  First, as the employer of the 3^rd defendant, the 4^th defendant would be vicariously liable for his negligence.  Based on the findings above, I do so find.

168.  Apart from the above, I accept the plaintiff’s case and find the 4^th defendant liable personally for not rendering any adequate supervision, instructions and/or manpower to the 3^rd defendant.

169.  The 4^th defendant had repeated throughout his evidence that he left the 3^rd defendant to decide on his own how he would transport the debris from Shop 26 to the exit via the Route.  It is worth noting that the 4^th defendant had said nothing about having assessed the 3^rd defendant’s performance based on the 8 to 10 days that they worked together previously, which could support his belief that no further training, supervision and instruction would be required.  Conversely, the 4^th defendant admitted that he only heard from the 3^rd defendant about the latter’s experiences, apparently having made no effort to check it with the 3^rd defendant’s previous employers.  There is also no evidence that the 4^th defendant had inquired with the 3^rd defendant’s previous employers as to his performance.  Moreover, the 4^th defendant agreed during cross-examination that having acquired the Safety Certificate was a minimum requirement from the Government.

170.  In light of the above, I am not persuaded that it was right for the 4^th defendant to leave it in the hands of the 3^rd defendant to decide how to discharge his duties in a manner which was safe for the visitors.  Moreover, as the employer, the 4^th defendant should, before commencement of the Works, observe and consider the situation.  His failure to do so could be reflected by his oblivion to the visitors inside the Arcade, especially on the increased flow of visitors after 10:00 am when the shops started to open.  From the Video, although one could not say that there was a crowd, but there was steady flow of visitors inside the Arcade at 11:00 am and beyond.  He had failed to observe that visitors of the Arcade included elderlies and children, and that they had repeatedly entered into the Route. All these could be seen from the Video.

171.  In addition, knowing that the Route was not fully covered by the rails, together with the fact that the 1^st defendant had not sent any staff to station at or around the Route to warn them off, it was foreseeable that visitors could venture into the Route and cross path with the trolleys pushed by his workers.

172.  The above magnified the need for the 4^th defendant to devise a system of work for his employees to perform the Works, in particular transporting the debris using the Route, which was suitable and safe not only for them, but also to ensure that the same would not create any danger to the visitors of the Arcade.  He should give specific directions to his workers that they should exercise even more care when conveying the debris using the Route.  These directions should include: (1) starting from 10:00 am onward, to further reduce the speed when pushing the trolley; and (2) 2 workers should be sent to operate the trolley, with the worker at the front warning visitors to stay away from the Route, or to signal to the worker pushing the trolley to stop or swerve the same if there were any unexpected or sudden entry into the Route by a visitor.  The last arrangement, I shall add, is commonly seen in shopping malls and supermarkets. With his 20 years of experience in the field, these are arrangements that should not have escaped his mind.

173.  Unfortunately, save for the vague instructions to his workers that they should be “careful” and should “give way” to the visitors, the 4^th defendant had done nothing of the sort.  It is inexplicable for him not to implement these measures, especially if one accepted his evidence that at the time of the Accident, the Works were close to being completed, and that transportation of debris was not caught by the time limit imposed by the 1^st defendant.

174.  That being said, I might have expected too much from the 4^th defendant, when he was seen pushing 2 trolleys by himself right outside the Exit and next to the entrance of the Supermarket.[24]

175.  Mr Ng argued that handling of the trolley is a simple task which does not require an employer to prescribe a system of work or give specific instruction or advice how the task should be done.  It is reasonable that an employee could be trusted to exercise his common sense to carry out the operation.  In support, Mr Ng cited the Court of Appeal case of Fong Yuet Ha v Success Employment Services Limited.[25]  In that case, the plaintiff was the employee of the defendant, and was injured when she fell from a plastic stool that she was standing on whilst she was retrieving some canned food from the shelf.  At the first instance, her claim was dismissed.  The learned trial judge held that the retrieval of items stored in the shelf was not complicated, difficult or dangerous in respect of which instructions from the employer was required.  This view was affirmed by the Court of Appeal.

176.  I have no quarrel with the above principle when it comes to the question of whether a system of work, instructions or advice needed to be prescribed and given by an employer to an employee.  I agree that pushing a trolley in itself is a simple task which would unlikely create any danger to the worker, and the worker could be trusted to exercise his own common sense to carry out the operation in a manner suitable and safe for himself.  But I do not see how the principle could be applied in the present case, when the system to be devised relates to how the trolley should be pushed safely so as to avoid creating any danger to the visitors of the Arcade.

177.  For the reasons above, I find the 4^th defendant was in breach of his duty of care and his negligence had led to the Accident.

178.  On the issue of occupier’s liability, I see that Ms Tjia has not pursued on this in her closing submissions.  In view of my findings above, it is unnecessary for me to dwell on this topic.

Liability of the 2^nd defendant

179.  I find it hard to conceive what exactly is the 2^nd defendant’s case.  First, in her amended defence, it seems that her duties were restricted to putting up the hoardings, acquiring insurance, and to make sure that the Works were performed within the time limit imposed by the 1^st defendant.  But Mr Chow expanded on these duties to include supervision of the Works, ensuring no damage was done to the interior of Shop 26, and what fixtures to be removed.

180.  Second, despite Mr Chow’s repeated insistence on the lack of safety guidelines on the use of trolley, and that the 2^nd defendant as the main contractor and himself being the project manager would not interfere with how the 4^th defendant would train or instruct his workers, he gave evidence contrary to these.  For starter, Mr Chow had asked the 4^th defendant and his workers to take care not to collide with visitors of the Arcade when pushing the trolleys, borderline interfering with 4^th defendant’s autonomy to instruct his workers.

181.  When Mr Chow went further to voice his concern to the 4^th defendant after he saw trolleys being pushed by the workers singly, he was interfering with the 4^th defendant’s training of his workers.  And by his explanation that it was fundamental knowledge and safety requirement that the trolley should be manned by 2 workers, Mr Chow deviated from his earlier evidence that there was no safety guidelines, or at the very least played down the defence that the workers had a free hand as to how to operate the trolleys.  Oddly though, when I asked why he did not stop the workers there and then, Mr Chow replied that the debris were not stacked so high to render it unsafe.  His answers made one wonders whether there was indeed the fundamental knowledge and safety requirement as alleged, and if so, what exactly they are.

182.  Regarding the height of debris stacked on the trolley by the 3^rd defendant at the time of the Accident, Mr Chow after agreeing that it was too high, and graded such conduct as being so unreasonable, he said he would have stopped the 3^rd defendant if he was at the scene.  This contradicts with his evidence that he would neither instruct nor reprimand the workers directly but only via the 4^th defendant.  But later on, he conceded that the 3^rd defendant was not wrong not to tie the debris to the trolley or pushing the trolley without the aid of another worker.  He went back to citing the worker’s freedom to decide how to perform his work.  This again contradicts with his earlier evidence that he would have stopped the 3^rd defendant if he was there.  Come what may, by his evidence, he had intended to interfere with the 4^th defendant’s autonomy to supervise, instruct and train his own workers. 

183.  Third, the role he played in the Works was muddied by his own evidence.  On one hand, he attended the Arcade at about 9:00 am on 19 March 2014 and remained there until about 5:30 pm.  He was there as the project manager, and his duties were to ensure that the Works would not create danger to the workers and visitors of the Arcade.  He intended to do the same on 20 March 2014, but the discomfort felt by the 2^nd defendant derailed his plan.  On the other hand, when challenged by the opposing counsel that the 2^nd defendant had failed to find another project manager to oversee the Works after she and Mr Chow left prematurely on 20 March 2014, Mr Chow said he was there merely as an observer, not a project manager.  He added that there was no need for a project manager to be there. It is baffling as to why Mr Chow was a project manager on 19 March 2014, but an observer on 20 March 2014; why it was necessary for there to be a project manager on 19 March 2014 but not on 20 March 2014 until the Works, including transportation of the debris from Shop 26 to the Loading Area, were completed; why there was a need for the project manager to ensure that the Works would not create danger to the workers and visitors of the Arcade on 19 March 2014 but not on 20 March 2014.  Moreover, if Mr Chow was at the Arcade on 19 March 2014 to do the things he said he would, he had again crossed the line, as safety of the workers and visitors should be matters reserved for the 4^th defendant.

184.  From the above, Mr Chow was apparently giving evidence in circles, coming up with whatever answers to suit his purposes.  It is common to see in the construction and related industry that safety training courses were provided by the main contractors rather than the subcontractors.  He was finding ways to distance himself and the 2^nd defendant from the duties levied on a main contractor, which in my view he had failed miserably, when his evidence was tested by opposing counsel.  The truth came to light when his cover was taken away during cross-examination.

185.  Based on the above, I find that: (1) Mr Chow was assigned by the 2^nd defendant to attend the Arcade as the project manager of the Works on both 19 and 20 March 2014; (2) his duties as the project manager would include ensuring the safety of the workers of the 4^th defendant and the visitors of the Arcade; (3) in order to perform these duties, he would have to give instructions to the 4^th defendant and his workers as to how to perform the Works, including transportation of the debris from Shop 26 to the Loading Area, and to render proper and consistent supervision ensuring compliance with his instructions; (4) he had failed to render proper and consistent instructions to the 4^th defendant and his workers as to how to convey the debris safely using the Route to avoid harm being done to the visitors of the Arcade; (5) he had failed to render proper and consistent supervision on the 4^th defendant and his workers to convey the debris safely using the Route to avoid harm being done to the visitors of the Arcade; (6) the 2^nd defendant and/or Mr Chow had failed to assign another project manager to oversee the Works after they left at about 10:00 am on 20 March 2014; and (7) the danger which stemmed from not tying debris to the trolley and pushing the trolley singly by the 4^th defendant and his workers were or ought to have been obvious to Mr Chow, the project manager of the 2^nd defendant.

186.  Moreover, there is no evidence that when Mr Chow was at the Arcade on both days, he was involved in any manual work.  He was, one can say, an extra hand who could prevent visitors from entering into, or give warnings to visitors who had entered into the Route, when the 4^th defendant and his workers were in the midst of transporting debris out of Shop 26.  If Mr Chow was present at the time of the Accident, or a replacement had been assigned by the 2^nd defendant to take over his post after 10:00 am, the tragedy could have been avoided.

187.  For the said reasons, I find the 2^nd defendant’s liability as the main contractor established.[26]

188.  On the issue of occupier’s liability, again Ms Tjia has not pursued on this in her closing submissions.  Likewise, in view of my findings above, it is unnecessary for me to make a ruling on this.

189.  Before I turn to the liability of the 1^st defendant, I will mention in passing that I find no substance in the 2^nd defendant’s complaint about the delayed provision of information of the Accident and the plaintiff’s personal particulars, be it from the 1^st or 4^th defendant.  I suppose her grievance was that for these reasons her insurance company refused to subrogate this action and she was left to defend it by herself.  Be that as it may, I do not see by having a lawyer to advance her case the end result would be changed.  Her case and Mr Chow’s evidence are simply not good enough for a lawyer to do so.

Liability of the 1^st defendant

(1) Relevant legal principles

190.  It is convenient to first set out the relevant legal principles before my analysis on the liability of the 1^st defendant.  I will start with the duties of a manager of a shopping mall.

191.  The duties owed by a manager of a shopping mall to the visitors are not absolute.  In Ward v Tesco Stores Ltd [1976] 1 WLR 810 at page 815, Megaw LJ said:-

“It is for the plaintiff to show that there has occurred an event which is unusual and which, in absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault. … When the plaintiff has established that, the defendants can still escape from liability. They could escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system in relation to the circumstances, to provide for the safety of customers. But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection for customers.”

192.  The above principle was adopted by Sakhrani J in So Wang Chun v Rainforce Limited and Ors.[27]

193.  Unlike in the cases of the 2^nd and 4^th defendants, the issue of occupier’s liability was hotly debated by Ms Tjia and Ms Li, in particular on occupancy duty and activity duty.

194.  In this regard, section 2(1) of OLO provides:-

“The rules enacted by sections 3 and 4 shall have effect, in place of the rules of common law, to regulate the duty which an occupier of premises owed to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.” (emphasis added)

195.  In light of the wordings used in section 2(1) of OLO, it was suggested that an occupier owes to his visitors both occupancy and activity duties.  In the case of Waan Chuen Ming v Lo Kin Nam t/a Kar Kin Engineering & Supplier Co. & Anor[28], the Court of Appeal referred to various authorities and textbooks[29] which recognised the existence of and the distinction between ‘occupancy duty’ and ‘activity duty’ in the context of occupier’s liability. [30]   However, these authorities tended to agree that the words ‘anything done or omitted to be done’ on the premises’ used in section 2(1) of OLO[31] do not have the effect of bringing within the scope of OLO all claims for injuries on the occupier’s premises arising from every kind of activity or omission on them irrespective of whether they are connected with the safety of those premises as such.  The activity duty remained to be governed by the general rule of negligence.  That being said, the Court of Appeal in Waan Chuen Ming case was not required to consider whether this would be applicable to Hong Kong as liability of the defendant in that case was sufficiently established under the general rule of negligence.

196.  In the case of Tomlinson v Congleton Borough Council & Anor[32], cited by Ms Tjia, the English Court of Appeal accepted that by the words “things done or omitted to be done on them” under section 1(1)(a) of the English Occupiers’ Liability Act 1984, activities or the lack of precautions which cause risk would be included.[33]  In his judgment, Lord Hobhouse at paragraph 69 stated:-

“There are two alternatives. The first is that it must be due to the state of the premises. The state of the premises is the physical features of the premises as they exist at the relevant time… The second alternative is dangers due to things done or omitted to be done on the premises. Thus if shooting is taking place on premises, a danger to visitors may arise from that fact.”

197.  Ms Li countered this with the local case of Ma Yuet Pong v Chan Kar Wai & Ors,[34] where DHCJ Lok (as His Lordship then was) ruled that activity duty would not be caught by the OLO.  The learned judge referred to the analysis on the subject in his earlier judgment of Gauchan Som Prasad v Hin Wah Construction Company Limited,[35] where he adopted another English Court of Appeal case[36] in excluding activities duty from the scope of OLO.

198.  With these in mind, I will now consider the 1^st defendant’s liability below.

(2) Analysis

199.  I will first consider the 1^st defendant’s liability as the manager of the Arcade. Adopting the principles set out in the Tesco case, I am satisfied that the Accident is an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the 1^st defendant than the absence of fault.  It is unusual to see that a visitor to a shopping mall would get run down by a trolley loaded with debris and removed fixtures at a time when the shops were opened for business. Allowing such activity at such time of the day to happen inside the Arcade certainly is consistent with fault on the part of the 1^st defendant.

200.  The next question to ask is whether the 1^st defendant could escape liability by showing that the Accident must have happened, despite a proper system designed to give reasonable protection for customers.  In this regard, I find the 1^st defendant had done an appalling job.

201.  First, I do not accept the 1^st defendant’s case that its staff had given specific instructions to Mr Lau, Mr Chow and the 4^th defendant on the use of trolley to transport the debris from Shop 26.  Inexplicably, Mr Tsang, whom allegedly gave the instructions, was not called by the 1^st defendant to give evidence in this case.  There is no evidence to show that Mr Tsang, even if he had left the employ of the 1^st defendant, could not be contacted for the purpose of making a statement and giving evidence at trial, or be subpoenaed to give evidence.  What is left, therefore, is the second-hand information coming from the mouth of Mr Chan, whom admitted was not in attendance at the Meeting and did not know what exactly happened during the same.  There is therefore no direct evidence to contradict Mr Chow and the 4^th defendant’s contention that no instruction was given by the 1^st defendant on the use of trolley inside the Arcade. 

202.  Salvation could be available if the Letter or the Guidelines had prescribed the instructions that the 1^st defendant alleged to have given on the safe-usage of trolley.  Unfortunately, neither document contained anything to that effect.  In fact, after perusing the Guidelines, one could easily be impressed that the instructions therein focused on the physical well-being and appearance of the Arcade.

203.  During cross-examination by Ms Tjia, Mr Chan first said it was not his duty to give instructions to the contractors.  He later said Ms Wong and himself would remind the 4^th defendant and his workers to adhere to the safety requirements when using trolleys to transport debris at the time when they registered for their attendance at the service counter.  But then he also said he was not present at the service counter on 20 March 2014.  By deduction, that should mean he was present at the service counter when the 4^th defendant and his workers registered their attendance on 19 March 2014, and he should have given the reminder to them.  However, he had given no unequivocal evidence on this.

204.  Moreover, his evidence on the topic of reminder was not supported by Ms Wong.  In her evidence, her duty was just limited to the registration of the workers.  There was no mentioning of any reminder given by her to the 4^th defendant and his workers.  If both Mr Chan ad Ms Wong were so tasked, there was no reason for them not to mention it, seeing how they had volunteered information about the plastic wheels of the trolleys used by the 4^th defendant and his workers.

205.  Furthermore, if Mr Chan and Ms Wong were informed about the said safety requirements, and they were required to remind the workers of the same, it is most singular that, on their duties to pay special attention to the Works, both agreed that the same was confined to observation as to whether there were litter or water on the floor and other oddities.  Nothing was said about the safety requirements on the use of trolleys.  Such omission is at odds with the alleged existence of the safety instructions.

206.  Finally, on this topic, one would expect the said reminders to be included in the witness statements of Mr Chan and Ms Wong, or if it was omitted by mistake, Ms Li would have covered this when examining them.  Peculiarly, these never happened. Such evidence came only when Mr Chan was cross-examined by Ms Tjia.  Obviously, this is a recent invention by Mr Chan.

207.  For these reasons, I am not persuaded that the 1^st defendant had given the said safety instructions to the 2^nd defendant, Mr Chow, the 4^th defendant and his workers.

208.  Even assuming I was wrong on such finding, I have no hesitation in holding that the 1^st defendant had failed to render proper supervision on the Works, in particular, on ensuring adherence to the said safety instructions by the 2^nd defendant, Mr Chow, the 4^th defendant and his workers.

209.  Regarding the request that Mr Lau should engage competent contractor to perform the Works, I find this to be nothing more than empty obligation imposed on him by the 1^st defendant.  The 1^st defendant had taken no action to ensure this was complied with.  In the explanation provided by Mr Chan, when assessing an application for renovation work, the 1^st defendant would not consider the standard of work of the contractor.  It would simply check the licences of the workers engaged in the work.  The said requirement of checking the workers’ licences would not even apply to reinstatement project like the Works in this case.  In the circumstances, I do not see how the 1^st defendant could be immune from liability based on such request. 

210.  In light of the above, what system had the 1^st defendant put in place to give reasonable protection to the visitors from being injured by the trolleys?  In my view, there was none.  As confirmed by Ms Wong and Mr Chan, no notices and warning signs were posted at the vicinity reminding visitors to heed the Works and trolleys coming out from Shop 26.  The white hoardings were used not for the safety of visitors but for maintaining the appearance of the Arcade.  At most, the hoardings would only prevent visitors from entering into Shop 26.  Despite the Route was designated for conveyance of debris, the rails did not block it entirely to prevent entrance by visitors.  With feasibility of doing so in question, the 1^st defendant had allowed the 4^th defendant and his workers to continue using the Route to transport the debris beyond 10:00 am, when the shops would start to open and the number of visitors would correspondingly increase.  In the same vein, the 1^st defendant had allowed the 4^th defendant and his workers to continue using the Route to transport the debris beyond 10:00 am when, as agreed by Mr Chan, the safest times to do so was from 8:00 to 10:00 am and from 9:00 to 11:00 pm.  Equally, if it was infeasible to block the entire Route by rails, it was then imperative to have a staff member stationed along it to ward visitors off the Route when transportation of debris was in progress.  Insufficient manpower provides no excuse to such omission.  The 1^st defendant could also have requested the 2^nd and/or 4^th defendant to implement such measure but this was not done.

211.  Notwithstanding my views above, I do not agree with Mr Ng’s suggestion that placing carpets along the Route could serve as a warning to visitors that the same would be used for debris transportation.  The use of it would most likely lead to the visitors thinking that the floor was wet.

212.  Ms Li, in her cross-examination of the 4^th defendant, had inquired into the project fee he received, and the additional costs he would incur for working in the evening.  She relied on this to submit that it would not be cost-effective to the 4^th defendant to perform the Works from 9:00 to 11:00 pm.  I see no force in this argument.  I do not understand why whether a contractor would suffer a loss is a concern for the 1^st defendant.  In addition, if that was the request from the 1^st defendant, there is nothing to forbid the 2^nd and 4^th defendants to increase the price charged on Mr Lau accordingly.  In any event, there is no evidence from the 1^st defendant’s side that this was a factor Mr Tsang had considered when designating the time for performance of the Works.  Moreover, there is no reason for the 1^st defendant to sacrifice the safety of its visitors in order to make it cost-effective for Mr Lau or the 4^th defendant.

213.  Ms Li also submitted that as the Arcade was a mall of small scale, having a staff stationed at the Route was not feasible.  I do not agree.  This is to suggest that the smaller a shopping mall, the lower the standard of care should be required.  I cannot follow such rationale at all.

214.  Ms Li further argued that even if the 1^st defendant was to arrange a staff to station at the Route, the 3^rd defendant could still have failed to stop and/or swerve the trolley in time to avoid the Accident.  I think Ms Li was missing the point.  Having a staff stationed there could prevent visitors, including the plaintiff, to stay off the Route.  The staff could also give timely signal to the 3^rd defendant to stop and/or swerve the trolley when the plaintiff was starting to enter or had already entered the Route.

215.  Based on the above, I find the 1^st defendant liable for the Accident.

216.  On the question of occupier’s liability, in light of my finding on the 1^st defendant’s common law negligence, it is unnecessary for me to make further finding on this issue.  Suffice it to say, it appears that the current development in Hong Kong suggests that activities duty falls outside the ambit of OLO.

Contributory negligence of the plaintiff

217.  Save for the 3^rd defendant, all defendants claimed that the plaintiff’s own negligence had caused or contributed to her own misfortune.

218.  Based on the pleadings of the defendants, the key questions on this topic are: (1) whether she was aware of the use of trolleys by the 4^th defendants and his workers to transport the debris out of Shop 26; (2) whether she was aware of the Route being designated for the said task; (3) whether she could heed the trolley pushed by the 3^rd defendant approaching toward her from behind.

219.  As per her evidence, she was already aware of the Works at Shop 26 prior to 20 March 2014, as she was a frequent visitor to the Arcade.  But she did not expect trolleys being used inside the Arcade, as she was told by the management company that no trolley could be used inside the estate, including the Arcade.  I find this to be very odd.  I cannot imagine a management company forbidding the use of trolley even when an occupant was moving in or out from his residence or shop.

220.  The plaintiff further said that she had never seen any trolley being used inside the Arcade.  I note Ms Wong’s evidence that trolleys were often used in the Arcade by renovation workers.  However, there is no evidence to show that the plaintiff must have witnessed the use of them when she was in the Arcade.

221.  Even assuming that she should know there could be trolleys being used inside the Arcade, could she contemplate at the time of the Accident that she was in their path?  This brings us to the second question.  I have no doubt that she was unaware of the existence of the Route, but her ignorance of it was not her fault.  There is no evidence that, apart from the persons involved in the Works, visitors of the Arcade were also told about the same.  Save for the railings which extended only close to Shop 25, the rest of the Route was invisible to visitors as evidenced by the Video how so many visitors had entered into the same.  There was no warning signs or notice posted within the vicinity informing visitors to be aware of trolleys being used on the Route.  No one from either the 1^st defendant or the 2^nd defendant was assigned to ward visitors off the Route.

222.  Against these backgrounds, the defendants’ complaint that the plaintiff should heed the danger of walking within the vicinity of Shop 26 has no substance.  Nothing was done by them to bring to the plaintiff’s attention, and other visitors of the Arcade, that there would be transportation of debris using trolleys from Shop 26 to the Exit via the Route.

223.  Regarding the third question, the Video clearly showed that the 3^rd defendant and the trolley came out from Shop 26 after the plaintiff had reached its entrance.   Much was said by Mr Ng and Ms Li that the 3^rd defendant and the plaintiff were almost moving side by side at times, so that the plaintiff should have noticed the 3^rd defendant and the trolley that he was pushing.  This was controverted by the Video.  They had never walked side-by-side.  There was only a fleeting moment that they were side-by-side, when the plaintiff reached the entrance of Shop 26 and the 3^rd defendant was pulling out of the same.  Thereafter the 3^rd defendant was behind the plaintiff.  At no time the 3^rd defendant passed or came in front of the plaintiff.  Unless she has eyes at the back of her head, it is impossible for her to pay heed to the 3^rd defendant and the trolley approaching from behind.

224.  Could the plaintiff have expected the 3^rd defendant pushing the trolley at the same direction that as she was after walking pass the end of the railings?  Only if she knew that the 3^rd defendant would be using the Route, and I have found against this in paragraphs 221 and 222 above.

225.  As to the alleged warning shouted by the 3^rd defendant, I would repeat my analysis in paragraphs 160 and 161 of this judgment.

226.  On the point that the plaintiff had, just before the Accident, made sudden and reckless entry into the Route, I would repeat what I have said in paragraph 162 of this judgment.

227.  In the 4^th defendant’s case, it is suggested that the plaintiff should have turned her head and checked the condition of the Route before “changing lane”.  If she had done so, she would have spotted the approaching 3^rd defendant and his trolley, and the Accident could have been avoided.  This a peculiar suggestion and I am unable to accept it.  For this argument to work, the Route has to be a road and the plaintiff a road-user, which was neither correct.  There was no “lane” as such for her to change, thus no obligation on her to check the “blind-spot” before “changing lane”.  If this argument was to be accepted, would it also be incumbent upon the plaintiff to give “signal” to the 3^rd defendant before “changing lane”? This is absurd.

228.  Ms Li and Mr Ng have cited a number of cases where a pedestrian or visitor was found contributorily liable, and suggested that the range of contribution in our case should be between 15% to 20%.  I have read them in detail and found none of them comparable to the present case.  They involved claimants who failed to notice the step down from the catwalk[37]; failed to notice the object on the ground and leg of a partition wall leading to the claimants either slipped[38] or tripped over them.[39]

229.  Mr Ng, in his closing submissions, also relied on a case cited by Ms Tjia, to say that the plaintiff should be 15% liable.  In the case of Bhana, Angela Mary v Ocean Apex Trading Limited[40], the claimant was shopping inside a boutique.  As she stood in front of a mirror with an item of clothing in her hand, she took one step back from the mirror.  As she did so, the claimant’s leg caught the leg of a shop assistant who was walking behind her, causing both to trip.  HH Judge Mimmie Chan (as Her Ladyship then was) found the claimant to be 15% liable for the accident.

230.  Again, I do not see how comparison could be made between that and the present case.  The claimant in that case, as commented by the learned judge, should have looked before stepping back.  In our case, the plaintiff did not walk in reverse.

231.  In my view, the present case is similar to the case of Ho Chung Wai v La’Cine Cosmetic Works Limited[41], where the claimant was hit by a trolley coming from behind him which he could not see. Sakhrani J held that there was no contributory negligence.

232.  For the said reasons, I find there is no contributory negligence on the part of the plaintiff.

Apportionment of liability between the defendants

233.  This is the last issue I have to deal with on liability.  In doing so, I respectfully adopt the principles set out by Bharwaney J at paragraph 50 of Liao Kuo Chun v Win Capital (HK) Ltd[42]:-

“It is well established that the exercise of assessing the amount of contribution recoverable from any person, in such amount as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question, requires the court to assess blameworthiness as well as causative potency. Non-causative factors that also involve a breach of duty are relevant considerations. Greater causal impact by one party may be balanced against greater blameworthiness by the other. As Hobhouse LJ, as he then was, said in Downs v Chappell [1997] 1 WLR 426 at 445: “It is just and equitable to take into account both the seriousness of the respective parties’ faults and their causative relevance. A more serious fault having less causative impact on the plaintiff’s damage may represent an equivalent responsibility to a less serious fault which had a which has a greater causative impact.””

234.  On the question of apportionment, it is a battle between Ms Li and Mr Ng.  The 2^nd defendant has made no submission on this, leaving it in the hands of the court.

235.  Ms Li submitted that the 1^st defendant should be the least to blame, as the 3^rd defendant was the primary wrongdoer and the 4^th defendant is vicariously liable for his worker’s fault.  As such, she suggested the following apportionment: (1) 10% on the 1^st defendant; (2) 30% on the 2^nd defendant; and (3) 60% on the 3^rd and 4^th defendants.

236.  Mr Ng, understandably, placed more blame on the 1^st defendant, citing its control over the common area of the Arcade where the Accident happened.  He suggested that the 1^st defendant should be held 60% liable, 20% on the 2^nd defendant, and the remaining 20% to be shared by the 3^rd and 4^th defendants.

237.  The proverb I have quoted at paragraph 156 above is indicative of my view on this subject.  Who is the blind who led the other blinds in this case?  There is no doubt in my mind that the 1^st defendant is the leading blind in this case.  The Arcade is its “home court”.  It has the best understanding of its configuration, its visitors, the flow of visitors, the business hours of its tenants, and therefore has all the information to come up with a system, when there was construction work inside the Arcade, which would best protect the safety of its visitors while at the same time serve the best interest of its tenants.  It was in the position to set the requirements that any contractors who undertook construction works inside the Arcade would have to comply with.  In fact, it did issue some instructions to the 2^nd defendant, and the 4^th defendant via the 2^nd defendant, that they had complied with, for example the hours of work, erecting white hoardings and using the Route.  But it failed to expand these instructions to cover the safe usage of trolleys inside the Arcade, which ultimately led to the Accident.  I find the 1^st defendant the primary culprit in the Accident.

238.  I find the 2^nd defendant as the secondary culprit.  As I have found in the above, her project manager, Mr Chow, was tasked with the duty to supervise the Works, including conveyance of the debris via the Route.  As he was not involved in any manual work, he could serve as the “eye” of the workers, and observe if there were any flaws in the work system adopted.  When he saw the system of work was hazardous to the visitors of the Arcade, he should correct it by giving instructions to the 4^th defendant and his workers without hesitation.  His detachment from the manual work also gave him the liberty to help warn visitors off the Route when the 4^th defendant and his workers were transporting debris.  None of these were done.  And he left his post on 20 March 2014 prematurely without delegating the duty to a replacement.

239.  The 3^rd and 4^th defendants are culpable as well, but, in my mind, they were at the lower hierarchy of blame.

240.  For these reasons, I apportion the liability amongst the defendants as follow: (1) 50% on the 1^st defendant; (2) 30% on the 2^nd defendant; and (3) 20% on the 3^rd and 4^th defendants.

QUANTUM

241.  The 2^nd defendant has not filed an answer to the plaintiff’s revised statement of damages, and raised no opposition to the plaintiff’s claim of damages in her submissions, hence her absence in the discussions below.

Injuries and treatment received

242.  After the Accident, the plaintiff was bleeding from her right eyebrow, with bruise and swelling.  She was conscious but immobile.  As said, Dr Ip from Shop 25 attended to her, As said, immediately after the Accident, the plaintiff was treated by Dr Ip.  She was found to have laceration on her right eyebrow.  Compression gauze with bandage was used to stop the bleeding.

243.  The plaintiff was then taken by an ambulance to the Accident and Emergency Department of the North Lantau Hospital (“NLH”).  She was reported to have head and chest wall injury.  On the former, there was no vomiting.  As to the latter, she was found to have contusion of chest wall with fracture of 4^th to 6^th right ribs.  Treatment including wound dressing, anti-tetanus vaccination, suturing of the laceration wound and oral Panadol were given, before the plaintiff was transferred to Princess Margaret Hospital (“PMH”) on the same day.

244.  At the PMH, the plaintiff was admitted to the Department of Surgery.  Examination revealed that laceration lateral to her right eyebrow, right peri-orbital bruising and swelling, tenderness over right zygomatic arch, and tenderness over right lateral and posterior chest wall.  X-ray showed fracture of her 5^th to 7^th ribs, cortical break at her right 8^th rib, and multiple collapsed thoracic spine.  There was pain over right lateral chest wall and right upper back.  She was discharged from PMH on 22 March 2014, and attended follow-up treatment.  On her follow-up session on 21 May 2014, the plaintiff’s chest wall pain had subsided, and no more surgical follow-up was offered.

245.  Apart from the public hospitals, the plaintiff also received treatment from Paragon Medical Centre (“PMC”) on 25 March 2014.  She was found to have 2-3 cm laceration over her right eyebrow which was sutured.  The stitches were removed and dressing applied.  As to her chest, there was tenderness over her right lateral side at 4^th to 6^th ribs.  The tender ribs were treated with analgesic patch locally.

Her complaints

246.  The plaintiff said that after the Accident, she has intermittent headaches, loss of memory and insomnia.  She is apprehensive of going out, fearing that she would be knocked down by others again.  For this reason, she must be accompanied by someone whenever she went out of the house.

247.  Apart from the above, the plaintiff has left knee pain and shortness of breath.  She also has intermittent whole back pain, which limited her sitting tolerance to no more than 10 minutes and standing tolerance of no more than 15 minutes.

248.  The plaintiff explained that, prior to the Accident, she would go to supermarkets, restaurants and shops once to twice per week.  Every month, she would watch Chinese opera 2 to 3 times, and play mah-jong with her friends 3 to 4 times.  She would also visit Taiwan once to twice per year.  Since the Accident, her visits to supermarkets, restaurants and shops are extinguished.  She would watch Chinese opera once per month, and likewise for her mah-jong game with her friends.  Every time she did so, she must be accompanied by her maid.  She has also given up on her annual visits to Taiwan.

249.  On top of her leisure activities, the plaintiff said her daily life is also affected.  She cannot carry heavy objects, and her overall mobility is reduced so much so that she has difficulty going down the stairs, unable to do the household chores and to take care of herself.  For these reasons, at the initial stage of her recovery, her second daughter had to travel from Taiwan to Hong Kong to take care of her. Thereafter, maids were hired to take care of the plaintiff and to accompany her whenever she went outside.

250.  Under cross-examination, the plaintiff gave the following evidence:-

(1) Prior to the Accident, household chores and cooking were done by the plaintiff during the weekdays, and by the elder daughter during the weekends.  She did not find them to be burdensome, and treated them as a form of exercise.

(2) Her elder daughter worked at Central, and would not be home until after 7:00 pm.  The plaintiff would take care of herself when her elder daughter was off to work.  This had been the arrangement for at least 10 years before the Accident happened.

(3) At times, her third daughter would accompany her when strolling inside the Arcade.

(4) She attended follow-up treatment for her pre-existing conditions by herself.

(5) The plaintiff denied having fallen be it at home or outside, prior to the Accident.  She said she had never felt so tired after walking for a long time so that she would require the help from others.

(6) The maids would assist the plaintiff in doing the household chores, cook for her and to massage her for her physical pain.  The maids did not have to serve her elder daughter, save to prepare her dinner.

251.  Before moving on to the experts’ assessments, I note the plaintiff was accompanied by her maid when she attended trial.

Psychiatric assessment

252.  For her anxiousness of going out, the plaintiff was jointly assessed by Dr Benjamin Lai (“Dr Lai”) and Dr Law Wun Tong (“Dr Law”),[43] to determine whether she is suffering from any psychiatric morbidity and disability arising from the Accident.  In their Joint Psychiatric Report (“JPR”), Dr Lai and Dr Law agreed that the plaintiff has suffered from adjustment disorder with anxiety of a mild degree, and psychological treatment is required.  They have minor disagreement as to the percentage of permanent impairment of whole person (“PIWP”), with Dr Law suggesting 1% and Dr Lai suggesting 1 to 2%.  Both doctors agreed that the plaintiff’s psychiatric illness was caused by the Accident.  Dr Law opined that the plaintiff’s mental disorder would affect her going out for activities.  Dr Lai expanded on this, saying that the plaintiff would have minor residual psychiatric symptoms including anxiety and/or fear of falling again in the public place, and need to be accompanied even after completion of the recommended further treatment.

Neurological assessment

253.  The plaintiff was examined by Dr Yu Yuk Ling (“Dr Yu”) and Dr Choa Brian Hormus George (“Dr Choa”)[44] for her head discomfort and impaired memory for recent events.  Both doctors agreed in their first report dated 26 August 2017 (“1^st JNR”) that:-

(1) the plaintiff sustained mild to moderate head injury due to the Accident;

(2) CT brain scan revealed an acute subdural haematoma (3 mm thick) at the anterior inter-hemispheric fissure, an incidental meningioma (1.5 x 0.8 cm), and fracture of the posterior wall of the right maxillary sinus;

(3) the subdural haematoma resolved upon conservative treatment;

(4) the plaintiff has post-concussional syndrome (“PCS”) as evidenced by her head discomfort and subjective impairment of memory;

(5) the PIWP for her PCS is assessed to be 1%; and

(6) the plaintiff should be able to resume her pre-Accident life with mild handicap, as a result of which she would need to hire a domestic helper.

254.  Dr Yu and Dr Choa made their supplemental report on 13 December 2018 (“2^nd JNR”) to address on whether the pre-existing meningioma would have an impact on the plaintiff’s life expectancy; whether it would be appropriate to make a reduction in relation to the claims for PSLA and Value of Carer; the experts answered in the negative on both questions.  Dr Yu and Dr Choa justified their opinions by citing that the plaintiff’s incidental meningioma have been present for sometime prior to the Accident.  It is of a small size and it is unlikely to grow bigger in ensuing years.  It does not have any pressure effect on the brain structures, although there is slight possibility that it may give rise to epileptic seizures.  Even if epilepsy occurred, it can be controlled with anticonvulsant medications.

Orthopaedic assessment

255.  For her remaining disabilities, the plaintiff was jointly assessed by orthopaedic specialist Dr James Kong (“Dr Kong”) and Dr Lam Kwong Chin (“Dr Lam”)[45]. In their joint report dated 15 September 2017 (“JOR”), the doctors agreed on the following:-

(1) The discrepancy in the number of ribs fractured has little clinical significance, as the treatment regime is the same and they would heal together.

(2) The plaintiff’s pre-existing conditions, namely cataract and bilateral macular degeneration, meningioma, Ischemic heart disease, cardiomegaly and artrial fibrillation, hypertension, thoracic and lumbar spondylosis, wedging of T11, mild spondylolisthesis of L4/5, osteoarthritis of both knees and partial deafness, are not related to the Accident, but would affect her overall fitness.

(3) She had good recovery from the rib fractures with no more chest pain.

(4) The knee pain experienced by the plaintiff was due to degeneration which is common even for people younger than her.

(5) The orthopaedic injury suffered by the plaintiff should have minimal adverse influence on her daily activities.

256.  Dr Kong and Dr Lam only had minor disagreements on issues of back pain, the need of domestic helper, and the PIWP.  In relation to the back pain, Dr Lam opined that it was caused by degeneration of spine, as there was no evidence to show that she had low back pain caused by the Accident.  Dr Kong, on the other hand, suggested that the back pain was due to the chest wall contusion slightly aggravating her pre-existing thoracic spondylosis with mild tissue residue pain.

257.  As to the need of a domestic helper, Dr Lam asserted that, in view of the plaintiff’s age, the need came from that, not from the Accident.  Dr Kong agreed the plaintiff would require the aid of a domestic helper because of her age and her multiple medical problems.

258.  Finally, on the issue of PIWP, Dr Lam suggested there is no rateable impairment, whilst Dr Kong assessed it at 1% for the plaintiff’s possible soft tissue residue discomfort and pain.

Findings by the court

259.  From the above, one can see that there are only minor disagreements between the experts in each field.  On the plaintiff’s psychiatric illness, I accept that she is suffering from adjustment disorder with anxiety of a mild degree, and psychological treatment is required.  Her problems were caused by the Accident.  I also accept that for her psychiatric illness, she needs to be accompanied when going out for activities.  As to her PIWP, in view of the mild nature of her psychiatric illness, I would prefer the assessment of 1%.

260.  On her neurological illness, I fully accept the assessments by Dr Yu and Dr Choa in their JNR.

261.  Regarding the plaintiff’s orthopaedic condition, I agree with Dr Lam that there is no medical record of back pain shortly after the Accident or during any of the follow-up treatment that she attended.  From her evidence, such complaint appeared for the first time on 10 September 2015 during her solo consultation with Dr Kong.  In light of her pre-existing degeneration of spine, I am neither convinced that her back pain was a direct consequence of the Accident.  Even assuming that it was due to the chest wall contusion slightly aggravating her pre-existing thoracic spondylosis with mild tissue residue pain as suggested by Dr Kong in the JOR, with the fractured ribs fully recovered and chest pain having been subsided, any corresponding back pain should have faded. 

262.  Finally, both Dr Lam and Dr Kong agreed that the injury sustained by the plaintiff stemming from the Accident has minimal affect on her daily activities.  From the orthopaedic perspective, her need for a maid is primarily owing to her age.  Although Dr Kong also suggested that the plaintiff’s multiple medical problems also required such service, in my view, is too wide and vague to attribute it solely to the injury she suffered from the Accident, considering her multiple pre-existing conditions.  I would therefore find that the plaintiff’s continued need for a maid has nothing to do with her orthopaedic condition.  This finding, however, has no adverse consequence on her need for a maid as her carer due to her psychiatric and neurological problems.

263.  For the reasons stated, I would also prefer Dr Lam’s assessment that there is no rateable impairment due to her orthopaedic condition.

PSLA

264.  The plaintiff, in her Revised Statement of Damages, claims a sum of HK$450,000 under this head.

265.  In her submissions, Ms Tjia suggested that the plaintiff’s injuries and disabilities fall just below the category of “serious injury”.  At trial, she also stressed that the focus should be on the plaintiff’s PCS and adjustment disorder rather than her orthopaedic illness.

266.  The 1^st defendant countered it with HK$200,000, agreeing that her injuries are below the “serious injury” category.  In her submissions, Ms Li cited the following reasons in support of the 1^st defendant’s case:-

(1) The plaintiff was 91 years old at the time of the Accident.

(2) She has no particular hobby and is not sportive.

(3) Apart from the suturing of facial laceration, the plaintiff received conservative treatment all along for her other injuries.

(4) The plaintiff was hospitalised for 2 to 3 days and the treatment regime took about 2 months only.

(5) She had satisfactory recovery from the physical injuries, whilst the adjustment disorder was of a mild degree.  She is mentally fit to perform all activities of daily living.

(6) The PIWP for her PCS is assessed to be 1%.

267.  The 4^th defendant suggested that the damages to be awarded under this head should be no more than HK$180,000.

268.  Counsel cited various cases in support of their respective case under this head.  These include:-

From Ms Tjia

(1) Lam Wai Chun v Tam Chi Wai & Wong Yau Pui (hospitalised for 14 days; 4 fractured ribs; adjustment disorder; HK$300,000 awarded for PSLA);[46]

(2) Chum Hok Ching & Anor v Chung Lai Ching (2^nd plaintiff; head injury with multiple superficial limb abrasions; brief loss of consciousness; scarring on various parts of her body; PCS; received HK$320,000 for PSLA);[47]

(3) Joan Carol Boivin v Wong King Yin & Anor (severe whiplash injury; adjustment disorder with depressive mood; found to have no PCS; PSLA of HK$475,000 was awarded);[48]

(4) Lam Hok Fai v Chan Sai Kit & Anor (hit at the head causing laceration over vertex; found to have major depressive disorder; HK$500,000 awarded for PSLA);[49]

(5) Chan Sau Wai v Lam Kin Sum (hit at the head and lost consciousness; sutured with three stitches; diagnosed with concussion due to head injury; found to have PCS with memory loss; PSLA of HK$500,000 was awarded);[50]

(6) Kami Lohar Bahadur v Ng Yuk Tong t/a Yuk Tong Air-conditioning Engineering (multiple injuries sustained after falling from a height of 2.5 metres, including fractures to 1^st to 8^th ribs on the right side; PSLA awarded at HK$400,000);[51]

From Ms Li

(6) Chan Yuet Keung v Harmony (International) Knitting Factory Ltd (on the importance of PIWP when assessing the award for PSLA);[52]

(7) Choi Pak Sum v Lam Lung Ki & Anor (fracture of right patella, the 6^th and 7^th ribs in right chest; PSLA of HK$150,000 was awarded);[53]

(8) Fok Chick Yeung Apple v i-Cable Telecom Limited (head bumped into tailgate of a van; complained of headache and dizziness with no vomiting and diplopia; diagnosed with mild PCS and PIWP at less than 1%; HK$100,000 awarded for PSLA); [54]

(9) Chang Tsun Tein v Wai Lee Scaffolding Co. Ltd (hit at the head by bamboo stick; laceration at the scalp; mild headache; dizziness; impairment of memory; found to have mild form of PCS; PSLA of HK$150,000 was awarded);[55]

From Mr Ng

(10) Chan Chi Ming v Sze Hing Sang (a bankrupt) and Wong Chi Leung (a bankrupt) formerly t/a Kong Kin Construction Materials Co & Anor (fractures at 10^th to 12^th ribs; fracture of sight transverse processes of L1 to L4; hospitalised for 11 days; HK$250,000 received for PSLA);[56] and

(11) Chan Wai Leung v Mo Sheung Wah & Anor (punched and kicked leading to fractures at 6^th to 10^th ribs on the right ad 4^th, 6^th and 7^th ribs on the left; head injuries; diagnosed with PCS; HK$180,000 awarded for PSLA).[57]

269.  From the comparable cases cited above by counsel, none of them is identical to the present case.  In some of those cases, the claimants suffered more serious injuries as compared to the plaintiff.  In my view, the injuries and disabilities suffered by the plaintiff are closer to those suffered by the claimant in the Lam Wai Chun case, save that the claimant in that case was hospitalised for much longer than the plaintiff, but was not diagnosed with PCS.  Balancing the differences, and accepting Ms Li and Ms Tjia’s submissions, I find the plaintiff’s injuries are below the category of “serious injuries”.

270.  I have not lost sight that the cases cited were all decided before 2015.  In this regard, Ms Tjia has helpfully referred to the case of David John Slater v The Commissioner of Police, where Bharwaney J revised the starting point for general damages for PSLA for “serious injuries” to HK$530,000 in 2017.[58]  In a more recent case of To Ka Wong v World Gold International Limited & Anor,[59] HH Judge Harold Leung revised the range for “serious injury” in July 2019 to between HK$566,000 and HK$764,000.  Based on Ms Tjia’s calculation, the PSLA awarded in Lam Wai Chun case would be equivalent to HK$430,126.67 in 2019.  There is no disagreement from Ms Li and Mr Ng on this.  I would adopt the sum of HK$430,000 for PSLA in the present case.

271.  Before I move on to the next topic, I would mention in passing that I do not accept Ms Li’s submissions that the plaintiff’s age has anything to do with the claim of PSLA.  She did have hobbies like watching Chinese opera and playing mah-jong, with the frequencies reduced after the Accident due to her PCS and adjustment disorder.  Although her psychiatric condition created minimal inconvenience to her daily activities, there was inconvenience nonetheless.  Add to it the joint opinions of Dr Yu and Dr Choa that the plaintiff would suffer from mild handicap in her daily activities which warranted the need of a maid, I find no substance in Ms Li’s arguments. 

Value of carer

272.  The plaintiff claims HK$2,454.40 for the costs of air tickets expended by her second daughter for coming to Hong Kong to look after the plaintiff at the initial recovery stage.[60]

273.  The plaintiff also claims expenses incurred for hiring maids to take care of her after the Accident.  She pleaded that there was a total of 5 maids employed by her since 26 April 2014 up to the time of trial.  The expenses claimed include their wages, air tickets, food and travelling expenses, annual leave pay, wages in lieu of notice when their employments were terminated, employees’ insurance, agency fees, and the costs of bed and mattress purchased for the maids to sleep on.  At the time of the Revised Statement of Damages, these costs added up to HK$214,203.[61]

274.  The 1^st defendant refuted the plaintiff’s claim under this head, relying on the medical findings of the experts.  Moreover, as the elder daughter worked full time, maid would have to be hired to take care of the plaintiff even in the absence of the Accident.  Further, with the third daughter resided nearby, she could offer care to the plaintiff so that there was no need for the 2^nd daughter to come over from Taiwan.

275.  In her closing submissions, Ms Li added that the employment contracts of the maids revealed they were to serve 4 adults within the household.  Ms Li therefore queried whether the maids were truly employed to take care of the plaintiff.  In any event, the maids would serve the elder daughter, for which the 1^st defendant should be not be liable for.

276.  Notwithstanding the above, the 1^st defendant was ready to allow the costs of the first maid for 9 months, ie the time for the plaintiff to recover, in the sum of HK$52,526.

277.  The 4^th defendant shared the same arguments with the 1^st defendant, saying that a maid would have to be hired for the plaintiff come what may in view of her age and pre-existing conditions.  Mr Ng added that the experts’ views did not support the need for a maid to take care of the plaintiff.

278.  After perusing the JOR, 1^st JNR and JPR, I am of the view that hiring of maids after the Accident to take care of the plaintiff is warranted.  On this point, I will repeat my reasoning in paragraph 271 above.

279.  However, there is some force in Ms Li and Mr Ng’s arguments that a maid would have to be hired sooner or later, in view of the plaintiff’s age and her pre-existing medical conditions.  With her daughters having their own careers and/or families to maintain, the exigence of having a maid to look after the aging plaintiff, and to take over her duties of performing household chores, increased with each passing day, even in the absence of the Accident.  It is unimaginable that the elder daughter could count on the aging plaintiff with pre-existing medical conditions to continue performing the household chores for any longer period of time.  The maids would have to, apart from accompanying her whenever she goes out for medical appointments leisure activities or a stroll, take care of the plaintiff inside the house.  The Accident, in my view, was a rude awakening of such need, and an accelerator of having such arrangement put in place.

280.  I also share the views of Ms Li and Mr Ng that the elder daughter would reap some benefits from having a maid employed.  The household chores that were done by the plaintiff would now be assumed by the maid.  At the very least, as the plaintiff agreed, the maid would have to cook dinner for the elder daughter.  However, without hearing the evidence from the elder daughter and the maids, it is impossible to make an accurate apportionment on this.

281.  As to Ms Li’s submissions on the number of persons being served as stated in the employment contracts, this was never put to the plaintiff during cross-examination.  I would therefore exclude the same from my consideration.

282.  In addition, I would exclude from consideration the argument that the third daughter could offer care to the plaintiff so that there was no need for the 2^nd daughter to come over from Taiwan.  This was also never put to the plaintiff during cross-examination. Even if I was to consider this, I would rule against it.  The plaintiff did in her evidence mentioned that the third daughter was a housewife and had her own family to take care of.  As the first maid started her employment only on 26 April 2014, it might not be feasible for the third daughter to divide herself between her own family and the plaintiff for over 1 month, especially taking into account the plaintiff was at her initial recovery stage when greater attention would be demanded.  As such, the need of having her second daughter to come to Hong Kong to lend a helping hand is both understandable and justifiable.

283.  Balancing everything out, I will adopt a broad-brush approach as suggested by Mr Ng and award half of the plaintiff’s claim in her Revised Statement of Damages, ie a sum of HK$107,101.50 under this head.

Special damages

284.  The plaintiff’s claim for special damages are separated into medical expenditures, tonic food, travelling expenses and costs of a glass frame.

285.  Ms Li agreed to the sums of HK$174 and HK$4,500 respectively claimed for ointment and travelling expenses, and disputed on other items.  Mr Ng simply said that the sums claimed were excessive and countered with a sum of HK$5,000 without further specification.  There is no concession on the part of Ms Tjia on the disputed items.  In light of these, this court is put to performing an unenviable task of dealing with all items of claims in this judgment.

(1) Medical fees

286.  For medical expenses, the plaintiff claims:-

(1) HK$320 for PMH;

(2) HK$695 for NLH;

(3) HK$17 for Kowloon West Cluster (“KWL”);

(4) HK$1,400 for PMC;

(5) HK$400 for Essential Health Family Clinic (“EHFC”); and

(6) HK$600 for Dr Rupert W H Lee (“Dr Lee”).

287.  Regarding the fees for PMH, they are supported by receipts.[62]  Ms Li and Mr Ng made no specific submissions on these.  I would therefore award them in full.

288.  However, the fee paid to NLH was for obtaining a medical report as evidenced by the receipt.[63]  I agree with Ms Li that this should fall under a claim for costs rather than for damages.  I would therefore disallow this item to be claimed here.

289.  As to the claim of HK$17, I note from the receipt[64] that it was for injection.  However, there is no information as to what the injection was for.  The reason for such injection was also not documented in the JOR, 1^st and 2^nd JNRs and JPR.  Neither the plaintiff nor Ms Tjia has given the court any explanation for this item.  Considering the multiple pre-existing conditions that the plaintiff was all along suffering from, the possibility that the injection was for purpose other than the injuries sustained from the Accident could not be dismissed.  This claim is therefore rejected.

290.  Regarding the HK$1,400 paid to PMC, the first visit took place on 25.3.2014, when the plaintiff attended the clinic to remove the stitches.  The costs incurred was HK$600 and supported by receipt.[65]  This sum is allowed.

291.  As for the remaining HK$800, I see from the receipt[66] that it was for the report of Dr Hwang Shu Tak, James.[67]  Again, I agree with Ms Li that such sum shall be claimed as costs rather than damages.  As such, I disallow such claim. 

292.  Regarding the fees of HK$400 paid to EHFC, they represented 2 visits on 7 April 2014 and 12 April 2014.  One could see, however, that the diagnosis on both occasions were “URTI”, abbreviation for Upper Respiratory Tract Infection.  I do not see how the Accident had brought about the illness.  This claim is therefore rejected.

293.  Finally, as to the HK$600 paid to Dr Lee, Dr Lee is a specialist in ophthalmology.[68]  There is no suggestion that the plaintiff suffered eye injuries due to the Accident.  This claim is disallowed.

294.  In summary, the total amount awarded for medical fees is HK$920.

(2) Ointment

295.  This expenditure is supported by receipt and the ointment is for subsiding pain.  I would allow this claim in full.

(3) Travelling expenses

296.  Receipts are tendered for this claim.  But I see some of the expenses, totalling HK$354.60, were incurred for travelling to KWL for injection and to attend the consultation with Dr Lee, which should be deducted for the reasons given above.  As such, I would deduct the same and award HK$4,145.40 under this head.

(4) Tonic food

297.  The plaintiff claims a sum of HK$5,000 for tonic food.  No receipt was tendered and she has not specified in her witness statement the tonic food that she had taken.  However, she admitted at trial that the same included abalone, fish maw, ginseng and stewed chicken.  She did not know the costs for the same, as they were not acquired by her.

298.  I have considered the cases of Yu Ki v Chin Kit Lam[69] and King Light Industrial Ltd v Lo Wai Keung[70] submitted by Ms Li and Ms Tjia respectively.  The court in the Yu Ki case had awarded nominal sum for tonic food where there was no evidence as to the advisability and suitability of tonic food.  Mayo J, in the King Light case, adopted a maximum sum of HK$5,000 as the award for tonic food despite insufficient evidence was adduced to prove that the expenditure incurred on the nourishing food had been for the purpose of medical treatment of the claimant.

299.  In Chan Hung Hang v Fat Kee Marine Repairing & Engineering Co Limited & Anor,[71] the claimant provided no evidence as to what tonic food was purchased and consumed.  HH Judge Marlene Ng (as she then was) adopted the principles in the Yu Ki case, and judging from the mild nature of the claimant’s injuries, allowed a global sum of HK$2,000.

300.  In the absence of: (1) any documentary evidence showing the tonic food purchased; (2) any evidence (documentary or otherwise) showing the costs expended on the said tonic food; and (3) evidence as to the advisability and suitability of tonic food; a global sum of HK$3,500 is awarded under this head.

(5) Glass frame

301.  A sum of HK$4,300 is claimed by the plaintiff for a new pair of glass frame.

302.  From the Video, I could not see that the plaintiff was wearing glasses before the Accident.  There is no reference to this in her evidence, and nothing is said about her glasses being broken when she fell to the ground after the collision.  In spite of the protests from Ms Li and Mr Ng, Ms Tjia has not addressed me on this in her closing submissions.[72]

303.  I am not convinced that the plaintiff should be entitled to this claim.

Future medical expenses

304.  Both Ms Li and Mr Ng referred to the JPR and suggested HK$20,000 to be awarded under this head.  In the JPR, Dr Law and Dr Lai opined a maximum of 10 sessions of psychiatric treatment in the private sector would help alleviate the plaintiff’s anxiety caused by going outside.

305.  Ms Tjia, in her opening submissions adopted the highest estimation made by Dr Lai to claim a sum of HK$25,000 for the plaintiff.

306.  There is no certainty that the plaintiff would require full 10 sessions of psychiatric treatment, and the fee per session would be HK$2,500.  I would therefore adopt Ms Li’s suggestion and adopt the median figure of HK$20,000 as the sum to be awarded.

Summary of quantum

307.  To recap, the damages that I have assessed are as follows:-

(1)	PSLA	HK$430,000.00
(2)	Special damages
	(a) medical fees	HK$920.00
	(b) ointment	HK$174.00
	(c) travelling expenses	HK$4,145.40
	(d) tonic food	HK$3,500.00
	(e) glass frame	Nil
(3)	Value of carer	HK$107,101.50
(4)	Future medical expenses	HK$20,000.00
		_____________
	Total:	HK$565,840.90
		===========

Conclusion

308.  In conclusion, a sum of HK$565,840.90 is awarded to the plaintiff.  There shall be interest at 2% per annum for general damages from the date of issue of writ to the date of judgment, and interest at half judgment rate on special damages from the date of the Accident to the date of judgment, thereafter at judgment rate.

309.  I would also make an order nisi that the defendants shall pay the plaintiff’s costs of this action, and such costs to be taxed if not agreed with certificate for counsel.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.  Such order will become absolute in the absence of any application to vary the same within 14 days from the date of handing down of this judgment.

310.  Finally, the sum of HK$565,840.90 together with interest and costs shall be borne by the defendants in the accordance with their apportioned liability under paragraph 240 above.

311.  I thank counsel for their assistance.