SATTAR K.A. v. GOODRICH TRANSPORTATION (HK) LTD AND ANOTHER

DCPI 2105/2016

[2018] HKDC 1510

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2015 OF 2016

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JUDGMENT

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Background

1.  This is a personal injuries action in which the plaintiff sues the 1^st defendant (“Goodrich”) and 2^nd defendant (“K Line”) for damages for personal injuries suffered arising out of and in the course of his employment.

2.  Goodrich is a Hong Kong company carrying on a logistics business.  It is the registered owner of a vehicle bearing the registration number EW8969.  K Line is a Hong Kong company carrying on logistics business.  One of its major businesses is the sub-contracting of delivery orders.

3.  At the material time, Goodrich was engaged by K Line as a sub-contractor for the transportation of 5 pallets of goods from the Airport Freight Forwarding Centre to Nan Lung Warehouse in Kwai Chung.  Goodrich was one of the subcontractors that K Line frequently engaged to sub-contract delivery orders.

4.  It is the plaintiff’s case that he was employed by Goodrich as a worker responsible for delivery of goods in Hong Kong.  On 18 October 2013, he was assigned to deliver goods to a warehouse in Kwai Chung together with a Mr Cheung, a director of Goodrich.  The plaintiff was instructed to unload goods from EW8969 with Mr Cheung.  Whilst the plaintiff was performing his duties on the tailboard, the goods fell down suddenly and he tried to move away and fell to the ground (the “Accident”).  As a result, the plaintiff says he sustained injuries at his right ankle.

5.  The plaintiff says the Accident was caused by or contributed by the negligence on the part of Goodrich and K Line, and/or the breach of the implied terms of contract of employment and/or breach of statutory duties under the Occupational Safety and Health Ordinance (Cap 509) on the part of Goodrich.

6.  Goodrich was absent at the trial.  In fact, it had never filed any acknowledgment of service.  However, no default judgment was entered against Goodrich.

7.  In essence, the plaintiff says that Goodrich and K Line were negligent in failing to take all reasonable precautions for his safety.

8.  K Line denies the Accident occurred as a result of its negligence.  In particular, K Line denies any duty of care under common law to the plaintiff. K Line also denies owing the plaintiff any duty of care under the statutes.

9.  K Line filed a notice of contribution & indemnity to claim full indemnity against Goodrich should the plaintiff succeed in claiming against K Line.

The Accident

10.  There was no serious challenge by K Line to the fact that the Accident did happen and that the plaintiff did sustain injuries.  K Line also did not pursue its claims of contributory negligence against the plaintiff.

11.  I have seen the demeanor of the plaintiff when he gave evidence on the Accident and other aspects of the case.  I find him to be a truthful witness. He was consistent in his evidence and did not shy away from answering questions which were disadvantageous to his claim.  I accept his evidence and hold that the Accident did occur in the manner described by him in his evidence.

The plaintiff’s case against Goodrich

12.  Goodrich did not appear at the trial.  The court thus needs to consider if the plaintiff had proved his case against Goodrich on liability and quantum. 

13.  The plaintiff’s case is that Goodrich is the employer of the plaintiff. K Line agrees and says liability, if any, should be attributed to Goodrich as the plaintiff’s employer.

14.  The plaintiff gave clear and consistent evidence on his employment relationship with Goodrich.  He started working for Goodrich on 26 April 2012 pursuant to an oral contract.  The terms of employment were that he needed to work from 6 am to 2 pm, 6 days a week.  He would be paid HK$10,000 in cash every month.  He did not need to bring equipment to work.  Usually he would pick up goods from K Line and deliver them to different places.  In the absence of any challenge to his evidence in this regard, I accept the plaintiff’s evidence and rule that the plaintiff was the employee of Goodrich at the time of the Accident. 

15.  I accept the plaintiff’s case against Goodrich that it owed duties of care and statutory duties under the Occupational Health & Safety Ordinance (Cap 59) as his employer. 

16.  The failure of Goodrich to maintain a safe system of work and environment had caused the Accident and Goodrich is thus liable for the damages that the plaintiff sustained.

Does K Line owe a duty of care to the plaintiff?

17.  The main issues raised by the plaintiff’s claim against K Line in negligence are whether there was a duty of care owed by K Line to the plaintiff, breach of that duty and causation.

18.  The plaintiff’s case against K Line on negligence is premised on K Line’s failure to supervise Goodrich, and its failure to engage a competent subcontractor.

19.  An employee of a sub-contractor is not privy to the contract between the sub-contractor and the principal contractor.  In the absence of contractual obligation, the principal contractor does not owe an employee of its sub-contractor any contractual duty of care for his safety.  The duty under the law of negligence, if any, arises under the neighbourhood principle as a result of the relationship between the parties.  Whether a duty of care is owed under the law of negligence depends very much on foreseeability, proximity and whether it would be fair, just and reasonable to impose a duty of care.  In Caparo Industries Plc v Dickman and Others [1990] 2 AC 605, Lord Bridge of Harwich said:-

“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.”

20.  In the case of Ng Tat Kuen v Tam Che Fu (unreported, HCPI 896/2013, 26/10/2015), To J summarized the Caparo principle as adopted by the Court of Final Appeal in Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming [2011] 2 HKLRD 223:-

“In that case, Bokhary PJ referred to various subsequent authorities explaining Caparo. He said that these three elements of foreseeability, proximity and whether it would be fair, just and reasonable are just convenient labels. There is no real demarcation between them and they shade into each other. They may be seen as an umbrella covering a number of disparate circumstances in which the relationship between the parties is so close that it is just and reasonable to impose a duty of care. This is a question of value judgment. An important consideration is the danger to life and limb, where personal safety of the person affected is at stake. This is particularly so where the person affected is in a vulnerable position. His Lordship concluded that ultimately it is necessary to stand back and take a holistic view of foreseeability, proximity and the need to be satisfied that it would be fair, just and reasonable to impose a duty of care. Considerations of fairness, justice and reasonableness were an intrinsic element of the duty of care and could be employed to ground the imposition of a duty where no such duty had previously existed, or where a duty had previously been denied. Where the danger was to life and limb and personal safety is at stake, the standard of care demanded is high and involved legal policy.”

21.  Whether a duty of care was owed by K Line to the plaintiff has to be considered against the background:-

(a)   K Line contracted its delivery orders to Goodrich.  K Line is a true principal contractor in the sense that they engage subcontractors, including Goodrich, to carry out their business.

(b)   The plaintiff was an employee of Goodrich engaged in the performance of K Line’s business.  The plaintiff was the employee of Goodrich engaged in transportation and delivery work.

(c)   There was no contractual relationship between the plaintiff and K Line.

(d)   The Accident arose in the course of unloading goods from EW8969 to the Kwai Chung Warehouse.

(e)   K Line was not involved in the unloading of the goods and it had no control over how they were unloaded.

(f)   K Line did not provide equipment for Goodrich or the plaintiff.

(g)   The registered owner of EW8969 is Goodrich and as such is in charge of its maintenance.

(h)   The goods to be delivered were packed and loaded onto EW8969 by Goodrich’s staff.

(i)   K Line is not the occupier of the Kwai Chung Warehouse.

22.  I consider the fact that K Line is a true principal contractor as an important one (in the sense that they engage subcontractors, including Goodrich, to carry out their business).  As opposed to an end user of services, K Line directly benefits from and depends on Goodrich’s work as a subcontractor for part of its business.  I consider such a direct tri-partite relationship as proximate, foreseeable enough, and it is fair, just and reasonable to impose a duty of care.

23.  The next question would then be what was the extent or content of that duty owed by K Line?

24.  The plaintiff’s complaint against K Line is two-fold: (i) failure to engage a competent subcontractor, and (ii) a failure to supervise Goodrich.

Duty to engage competent subcontractors

25.  Ms Kwok, counsel for K Line fairly admitted, as the principal contractor, K Line has the duty to engage competent subcontractors.  It was also admitted that this duty included the duty to engage subcontractors with proper insurance.  I have no difficulty in holding that it is fair, just and reasonable to impose a duty on K Line to engage competent subcontractors with proper insurance.

26.  From the fact that Goodrich had disappeared and did not take part in the present proceedings, it is tempting to assume that Goodrich was operating without insurance.  However, there was no evidence on whether in fact K Line engaged the services of Goodrich without ascertaining if there was insurance.  This is probably due to the fact that there was no such complaint on the plaintiff’s part in his statement of claim or witness statement, and as such was never an issue in contention.

27.  Mr Leung, the only witness for K Line gave evidence on the issue. However, he was unable to shed light as he had only recently joined K Line and he was not aware of whether Goodrich had insurance or not.  He confirmed that for the subcontractors that were engaged through him, they all had sufficient insurance cover.  However, when the court asked whether it was possible that before he joined there would be subcontractors with no cover, he said it was possible.  There was no cross examination by the plaintiff on this point.

28.  Be that as it may, absent any other evidence, this possibility is insufficient for the court to hold that K Line had breached the duty to engage a competent contractor.

29.  Thus, although I find K Line has a duty of care to engage competent subcontractors, I am unable to find that there was a breach of that duty by K Line due to insufficient evidence.

Duty to supervise Goodrich

30.  Another complaint by the plaintiff was that K Line had failed in its duty to supervise Goodrich.  In considering whether there is a duty of care on the part of K Line to supervise Goodrich, I bear in mind the fact that the plaintiff was injured when Mr Cheung of Goodrich carried out a common and simple manouever, namely moving boxes from a vehicle to somewhere else.  The plaintiff’s duty involved no technical or special knowledge of machinery.  The plaintiff ought to be aware of the danger of falling boxes and to exercise ordinary care and judgment.

31.  There is no evidence from the plaintiff that there was anything out of the ordinary when he was carrying out his duties at the time of the Accident. Although K Line is a true principal contractor, I am of the view that it is entitled to rely on the expertise of Goodrich and his employees in carrying out the work.  In the industry of logistics, heavy boxes falling down during transport can be seen as such an obvious risk that it could be avoided by exercise of care and common sense which the employees are expected to exercise.  I therefore am unable to impose on K Line a duty to supervise Goodrich on the daily operation of goods delivery.

32.  Therefore, although I consider K Line does owe a duty of care to the plaintiff to engage competent subcontractors, I do not find that such a duty had been breached.  I do not consider K Line owes a duty to supervise Goodrich in the present circumstances.  I therefore hold that K Line did not breach any duty owed towards the plaintiff, and is consequently not liable to the plaintiff’s injuries and damages.

33.  Taking into account the facts and circumstances of the Accident, I find Goodrich to be solely culpable for the plaintiff’s Accident and consequent injuries.

The plaintiff’s injuries and treatment

34.  There is little dispute by K Line to the plaintiff’s injuries and treatment.  The plaintiff attended the Accident & Emergency Department of Queen Elizabeth Hospital (“QEH”) for medical attention and treatment on the day of the Accident.  Medical examination revealed tenderness and swelling over right lateral malleolus and right lower fibula.  X-ray of his right ankle showed fracture of right lower fibula.  The plaintiff was subsequently admitted to the orthopedic ward on the same day.

35.  The plaintiff was given a short leg dynacast for protection of his right ankle fracture at the orthopedics & traumatology department at QEH and was discharged after 3 days in the hospital on 22 October 2013.  The plaintiff then attended follow-up consultation and treatment in the out-patient clinic.  The cast was removed on 4 December 2013.  Subsequent x-rays showed that the fracture united.  The plaintiff’s last visit to the orthopedics & traumatology department at QEH was on 14 February 2014. 

Orthopedic assessment

36.  The plaintiff was examined by Dr Kong Kam Fu James (“Dr Kong”), a specialist in Orthopedics & traumatology, on 2 November 2017 (years after the Accident).  Dr King was nominated by the plaintiff as the expert.

37.  Dr Kong had prepared a report dated 9 November 2017.  K Line did not challenge the findings of the report and it was adduced without oral evidence.

38.  Upon examination, Dr Kong observed that the plaintiff:-

(a)   Was in general good health;

(b)   Walked with normal gait;

(c)   Could walk on his heels;

(d)   Could walk on tiptoes;

(e)   Squatted fully;

(f)   Had no obvious deformity, swelling or muscle wasting of the right ankle.

39.  On the issue of causation, Dr Kong opined that if the Accident occurred in the way the plaintiff described, the diagnosis of fracture of right fibula is consistent with the mechanism of injury on 18 October 2013 and his symptoms were justified.

40.  At the clinical examination, the plaintiff complained of mild ankle pain on prolonged walking and standing.  Physical examination revealed that the range of motion of his right ankle was mildly reduced, 5º difference between left and right ankles in pointing toes upwards and pointing toes downwards. There was no muscle wasting.  Lower limb circumferences were symmetrical. There was no neurological deficit.  X-rays of right ankle showed that the fracture has healed with satisfactory alignment.

41.  Dr Kong was of the view that the plaintiff attained relative satisfactory degree of recovery.  He only had mild soft tissue residue of right ankle pain and stiffness after the fracture of fibula.

42.  Dr Kong’s view is that the plaintiff’s social activities should not be affected.  In fact, the plaintiff himself fairly admitted that except for the period during his sick leave, his social life was not affected.

43.  The period of sick leave from 19 October 2013 to 17 February 2014 (122 days) granted by the plaintiff’s treating doctors was considered reasonable by Dr Kong.

44.  Regarding prognosis, Dr Kong thinks that the plaintiff’s medical prognosis is good.  No further treatment is required orthopedically.

Pain, suffering & loss of amenities (“PSLA”)

45.  The plaintiff claims HK$300,000 for PSLA.  Ms Kwok submitted that the sum claimed was too high and referred the court to several cases where PSLA was awarded to persons with similar injuries:

(a)   In Wong Ka Pang v Wong Chun Wang (Unreported, HCPI 644/1998, 19 October 1999), the plaintiff was injured whilst trying to load goods onto a vehicle at a container terminal.  The iron board which filled the gap between the vehicle and the terminal platform gave way and the plaintiff fell to the ground.  He sustained a fracture to his ankle and a torn ligament.  He no longer plays football, a sport which he engaged in prior to the injury.  An award of HK$150,000 for PSLA was made.  This figure would be equivalent to HK$195,366 today [ HK$150,000 x (106.80/82) ] (see pgs vi - viii Butterworth’s Hong Kong Personal Injury Service Vol  2).

(b)   In Leung See Ning Clara v Shun Tak Property Management Ltd (Unreported, DCPI 625/2003, 24 January 2005), the plaintiff, a law student, injured her ankle when she slipped and fell to the ground.  She sustained a fracture of the left distal fibula.  Open reduction and internal fixation were performed and she had another operation to remove the screw and metal plate.  The plaintiff had occasional mild pain at the fracture site.  The scar at her ankle measured 8.5 cm long.  She was awarded $230,000 for PSLA.  This figure would be equivalent to HK$335,574 today [ HK$230,000 x (106.80/72.50) ] (see pgs vi - viii Butterworth’s Hong Kong Personal Injury Service Vol 2).

(c)   In Tamang Tikaram v Tong Kee Company Limited (Unreported, HCPI 19/2013, 1 April 2015), the plaintiff was an aluminium formwork erector who fell onto the ground while standing on a stool to erect and fix aluminium formwork at the external wall of the balcony at the construction site.  He suffered a minimally displaced fracture of the right medial malleolus (ie the prominence on the inner side of the ankle).  He did not undergo any operation.  He was given a short leg dynast which he wore for about seven weeks for the ankle fracture and was hospitalized for 3 days.  He received physiotherapy and occupational therapy.  The degree of pain was unlikely to be significant and he was able to resume his pre-injury job.  He was awarded HK$200,000 for PSLA.  This figure would be equivalent to HK$214,028 today [ HK$200,000 x (106.80/99.80) ] (see pgs vi - viii Butterworth’s Hong Kong Personal Injury Service Vol 2).

46.  Taking into account:-

(a)   the figures awarded and the fact that the injuries sustained by the plaintiff in the present case is less serious than in the above cases; and

(b)   Dr Kong’s opinion that the plaintiff has attained a satisfactory degree of recovery and is able to resume his pre-accident job with minimal reduction of work efficiency and endurance.  The plaintiff also said his social life is no longer affected,

I am of the view that a reasonable award for PSLA in the present case should be HK$200,000.

Pre-trial loss of earnings

47.  The plaintiff claims HK$83,135 under this head of damage.  The plaintiff claims that prior to the Accident, he was working two jobs: the first being with Goodrich; and the other being with Aerial Enterprises (HK) Limited.

48.  The plaintiff claims that he was earning HK$10,000 per month from Goodrich.  K Line complains that there was no salary slip nor any payment record in support of this claim.  However, I heard the plaintiff’s live testimony on this issue, namely, he would be given HK$10,000 in cash at the end of the month since he was employed by Goodrich.  He had never deposited this sum into the bank as he would immediately use this sum to defray expenses to maintain his family. 

49.  As noted before, I find the plaintiff to be an honest witness who would not hesitate to answer a question even it was blatantly to his detriment.  In the absence of any evidence in rebuttal from K Line, I accept that the plaintiff was earning HK$10,000 per month in his employment with Goodrich.

50.  As to his employment with Aerial Enterprises (HK) Limited, the plaintiff had produced a salary list from 1 April 2013 to 31 March 2014.  The total amount of salary received prior to the Accident for a 6-month period was HK$9,544.  Ms Kwok says this shows that the plaintiff’s claim for HK$10,727 was not supported by evidence.

51.  The plaintiff’s explanation was that he only joined Aerial Enterprises (HK ) Limited in May 2013.  During May, he had only worked for 4 to 5 days due to family issues, and thus only received HK$1,680 for that month.  In other words, he wished the court to discount the month of May in calculating the monthly average. 

52.  From the list, it can be seen that for the months of July, August, September and October 2013, the plaintiff had consistently received a sum of more than HK$11,000, plus other smaller sums in the region of hundreds of dollars.  This figure is higher than that pleaded.  The plaintiff had no idea how the previous pleaded figure was arrived at as he was previously represented by solicitors although representation was withdrawn before the trial.

53.  If the court were to take out the month of May from the average, the calculation would be HK$55,584/5 months = HK$11,117.  I accept the plaintiff’s explanation and hold that the monthly average salary of his employment with Aerial Enterprises (HK) Limited was HK$11,117, as supported by evidence.

54.  Thus, the total pre-trial loss of earnings should be calculated on the basis that the plaintiff’s monthly salary before the Accident was HK$10,000 + HK$11,117 = HK$21,117.  His total pre-trial loss of earnings for the 122 days of sick leave would thus be:HK$21,117 x 12/365 x 122 days = HK$84,699.

Future loss of earnings and loss of earning capacity

55.  Ms Kwok submitted that since the plaintiff admitted that he was no longer in pain, and that Dr Kong’s report said that the plaintiff is able to resume his pre-accident occupation as a delivery worker with minimal degree of reasonable reduction of working efficiency and endurance, there should not be any award for future loss of earnings or loss of earning capacity.  There is also no evidence in support of a claim for psychiatric problems caused by the Accident.

56.  Ms Kwok submitted that damages for loss of earning capacity should be awarded if the plaintiff is facing a substantial or real risk that he may lose his present employment before the end of the estimated length of his working life because of the disadvantage in finding comparable employment.  Moeliker v Reyrolle [1977] 1 WLR 132 at 139; Kings Light Industrial Limited v Lo Wai Keung (unreported, CACV 80/1992, 21 December 1992 at pp 10-11).

57.  I agree with Ms Kwok’s submissions.  It is clear from both the report of Dr Kong and the plaintiff’s own testimony that he no longer suffers from any pain and can resume his previous jobs.  Further, the plaintiff has a good prognosis and satisfactory recovery.  Thus, despite Dr Kong’s view that the plaintiff suffers from 1.6% loss of earning capacity, I agree that there should not be any award under these two heads of damage.

Special damages

58.  The plaintiff claims special damages as set out below:-

(a) Medical expenses	HK$1,500
(b) Travelling expenses	HK$1,500
(c) Tonic Food	HK$5,000

59.  Ms Kwok complains that other than one receipt from the hospital authority for HK$300, the plaintiff had produced no receipt for all of the items claimed under special damages.

60.  The plaintiff explained that other than the receipt from QEH for HK$300, which represented the public acute ward fee, he had attended follow-up treatments and physiotherapy for about 16-17 times, each visit costing about HK$60.  I accept the oral testimony of the plaintiff and hold that the medical expenses incurred by the plaintiff amount to HK$300+(HK$60x16) = HK$1,260.

61.  In relation to travelling expenses, the plaintiff’s explanation is that he took taxis for going to QEH for his follow-up visits and did not keep the receipts.  The amount of HK$1,500 claimed would mean each taxi trip was about HK$93.  I accept the plaintiff’s testimony that he had incurred this sum as travelling expenses caused by the Accident.

62.  In relation to tonic food, the plaintiff said he bought some over-the-counter medicine and Chinese medicine and made Chinese soups for bone repair.  In the absence of particulars and evidence in support, there is simply no basis for the court to assess and allow the claim under this head (unlike hospital charges and public transportation costs which are of public knowledge).  I thus agree with Ms Kwok that no award should be made under this head.

Summary

63.  The award will be as follows:-

PSLA	HK$200,000.00
Pre-Trial Loss of Earnings	HK$84,699.00
Medical Expenses	HK$1,260.00
Travelling Expenses	HK$1,500.00
	HK$287,459.00
Less: Employee’s compensation	- HK$51,000.00
TOTAL:	HK$236,459.00

64.  I thus make the award of HK$236,459.00.  I also award interest on general damages for PSLA at 2% per annum from the date of writ to the date of judgment.  On damages for pre-trial loss of earnings and other special damages I award interest at half judgment rate from the date of accident to the date of judgment, then on all sums at judgment rate thereafter until full payment.

65.  In this case, I consider the plaintiff had properly sued both the 1^st and 2^nd defendants.  I thus make a costs order nisi that the 1^st defendant (Goodrich) do pay the costs of the plaintiff and the 2^nd defendant (K Line), including all costs reserved, with certificate for counsel, to be taxed if not agreed.

66.  I thank counsel for her assistance.