MAN PUI SHING v. INTERNATIONAL PAPER MANUFACTURING & DISTRIBUTION LTD AND OTHERS

DCPI 2911/2020

[2025] HKDC 16

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2911 OF 2020

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BETWEEN

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JUDGMENT

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A. INTRODUCTION AND UNDISPUTED BACKGROUND

1.  In this action[1], originally the Plaintiff (“P”) claimed damages against only the 1^st Defendant (“D1”) for the injuries suffered by him as a result of an accident that took place at around 8:30 am on 3 October 2017 (“the Accident”) at a recycling workshop (“the Workshop”) at No 263 Chong Fu Road, Chai Wan, Hong Kong (“the Premises”) when P was hit by a reversing forklift truck (“the Forklift”) driven by Ma Kam Fook (“Ma”).

2.  D1 later issued third party proceedings against the 1^st Third Party and the 2^nd Third Party, seeking indemnity and/or contribution in respect of P’s claims against D1 and its costs in the main action and third party proceedings[2].

3.  By consent, the main action and third party proceedings were ordered to be heard together[3] and the 1^st Third Party and 2^nd Third Party were joined in the main action as the 2^nd Defendant (“D2”) and the 3^rd Defendant (“D3”) respectively[4]. By subsequent amendments to the Writ and the Statement of Claim, P also claims damages against D2 and D3 in the main action.

4.  At the trial of the main action and third party proceedings:

(1) P was represented by Ms Lau, counsel;

(2) D1 was represented by Ms Kwok, counsel; and

(3) D2 and D3 (the 1^st Third Party and 2^nd Third Party respectively in the third party proceedings but for convenience, hereinafter I shall refer to them as D2 and D3) were represented by Mr Shum, counsel.

5.  The following facts were not disputed and should be taken as my finding of facts:

(1) At the time of the Accident, P was employed by On Kee (HK) Environmental Recycling Limited (“On Kee”) as a porter;

(2) Prior to the Accident, P had been driven to the Premises on many occasions (almost daily and sometimes 3 to 4 times a day) for unloading the waste materials from On Kee’s truck and was therefore familiar with the Premises. He recognized most of the regular workers working there including Ma;

(3) At the time of the Accident, Ma, who was operating the Forklift, was employed by D2 as a general worker. Ma did not (which D2 knew) have any licence to operate the Forklift as was required by law;

(4) D1[5] was the tenant of the Premises under a tenancy agreement entered into with the Hong Kong Government (“the Government”) dated 5 June 2000 (“the Tenancy Agreement”) for the operation of a business in connection with the recovery and/or recycling of paper and plastic waste materials commencing on 22 May 2000;

(5) In the opening submissions, D1 has conceded that at the time of the Accident, as tenant of the Premises, it was an occupier (for the purposes of the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”)) of the Premises;

(6) Pursuant to a management agreement entered into between D1 and D2[6], D2 was appointed as the manager of the Premises until D1 returned the Premises back to the Government;

(7) All of D1’s equipment and machineries were sold to D2 and all of D1’s workers were dismissed prior to handing over the Premises to D2;

(8) Effectively, D2 was allowed to operate on the Premises as if it was the tenant of the Tenancy Agreement, notwithstanding it was known to all parties that the Government would not allow the transfer or assignment of the Tenancy Agreement to D2 or any other entity. D2 was entitled to all profits generated from the management of the Premises and entitled to all rights and benefits enjoyed by D1. In return, D2 had to pay to D1 an administration fee of $7,000 (or $17,000 for the initial 25 months) per month in addition to paying the rental fees, utilities charges and rates of the Premises;

(9) At the material time, D3 was the 20% shareholder of D2. The other 80% shareholder were “Cha” and “Xia” two Mainland residents through a company, Sheenwell International Limited. Lau Yiu Shing (“Jacky Lau”) was a director of D2[7];

(10) Jacky Lau’s son, Lau Chun Wai (“Jackson”) was a director and shareholder of D3[8];

(11) The shareholders and directors of D2 and D3 were all family members; and

(12) Ultimately, D3 was awarded the tenancy of the Premises by the Government on 7 December 2020.

B. THE PARTIES’ RESPECTIVE CASE ON LIABILITY

B1. P’s Case on Liability

6.  P’s claims against D1, D2 and D3 (collectively, “Ds”) are based on: (1) negligence/breach of common law duty of care; and (2) breach of occupier’s liability under s 7 of OSHO.

7.  In respect of the alleged breach of duty of care by Ds, these are particularized in the Amended Statement of Claim as follows:

(1) Causing and/or permitting the Forklift to hit P;

(2) Reversing the Forklift without first ensuring that it was safe to do so;

(3) Reversing the Forklift without checking the rear mirrors;

(4) Engaging Ma who was incompetent and/or inexperienced to work at the Premises;

(5) Failing to take and/or carry out any precautionary step(s) to prevent P from being crushed by the Forklift at the Premises;

(6) Failing to ensure that the reversing of the Forklift was performed in a careful and slow manner;

(7) Failing to arrange a signaler to guide Ma if there was no clear view behind;

(8) Failing to provide sufficient warning to P of the danger or risk in carrying out his duties when Ma reversed the Forklift;

(9) Exposing P to a risk of injury which D1, D2, and/or D3 knew or ought to have known from inspection and supervision;

(10) Failing to give any or any adequate safety training or instructions to Ma;

(11) Failing to instruct, advise or adequately supervise Ma so as to ensure that all workers were made aware of the proper and safe working procedures;

(12) Causing and/or allowing Ma not to exercise due care and attention in driving, managing and/or controlling the Forklift;

(13) Causing and/or allowing Ma not to drive and/or manage and/or control the Forklift up to the standard of a reasonably competent driver;

(14) Failing to provide for any or any adequate system of monitoring the work practices at the Workshop in order to ensure that they were being carried out in a safe and proper manner; and

(15) Failing to take any or any reasonable or sufficient steps to avoid the Accident.

8.  In respect of the claim based on breach of occupier’s liability, P claims that D1, D2 and/or D3 were all occupiers under OSHO and was in breach of s 7 of OSHO in failing to provide or maintain plant and systems, the ingress and egress, that are, so far as reasonably practicable, safe and without risks to health to persons working at the workplace.

B2. D1’s case on Liability

9.  As mentioned above, D1 conceded that as the tenant of the Premises under the Tenancy Agreement, it remained an occupier within the meaning of OSHO notwithstanding the management agreement between D1 and D2.

10.  However, Ms Kwok submitted that D1 is not liable to P as the Accident was not as a result of dangers due to the state of the Premises but rather the activities carried out on the Premises for which an occupier is not liable. She relied on the established distinction between “occupancy duty” and “activity duty” of an occupier in the cases of Gauchan Som Prasad v Hin Wah Construction Company Limited & Another (unrep) DCPI 2398/2009, 26 July 2011, §§27-30, Ng Tat Kuen v Tam Che Fu & Others [2019] HKCFI 1191, §§74-78 and Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14, §19.

11.  As the Accident happened by the operation of the Forklift rather than the unsafe state or conditions of the Premises, she submitted that although D1 was an occupier of the Premises, it is not liable under s 7 of OSHO.

12.  As for P’s case based on negligence, D1 has pleaded that it does not owe P a duty of care. By the management agreement, D2 was appointed by D1 to manage the Premises and all machineries and equipment located on the Premises were sold to D2. Rather, D2 as the employer of Ma and occupier of the Premises had full control over the use and occupation of the Premises as the de facto tenant of the Premises. Further, D3 having managed and used the Premises jointly with D2 assumed responsibility and owed P a duty of care.

13.  D1 further claims that the Accident was wholly caused or contributed by the negligence of D2 and/or D3 and/or their servants for which they were vicariously liable. The following particulars of negligence are pleaded:

(1) Allowing, permitting and/or causing the Forklift to be driven and/or manoeuvred and/or controlled without due care and attention;

(2) Failing to take any or any reasonable step to ensure that the Forklift was being driven and/or manoeuvred and/or controlled properly and safely in the Premises;

(3) Failing to keep a proper look out before reversing the Forklift;

(4) Failing to stop, slow down, swerve or in any other way control the Forklift so as to avoid a collision with P;

(5) Failing to provide any or sufficient training and/or instruction and/or supervision for the use and or manoeuvre and/or control of the Forklift in the Premises;

(6) Failing to provide any or any sufficient warning to the workers in the vicinity, including P, when the Forklift was being driven and/or manoeuvred and/or controlled in the Premises;

(7) Failing to provide sufficient manpower such as a signalman to give proper instructions to Ma;

(8) Failing to employ and/or assign and/or engage competent and/or experienced workers to drive and/or manoeuvre and/or control the Forklift;

(9) Failing to take any or any reasonable precaution and measure to ensure the health and safety of the workers in the Premises including P; and

(10) Failing to provide a safe system of work.

14.  Further or alternatively, it is pleaded that P was contributorily negligent. The following particulars of contributory negligence were pleaded:

(1) Failing to pay any or any proper attention to the approaching Forklift;

(2) Failing to take any or any reasonable care of his own safety by standing or remaining in a position which was liable to be hit by the Forklift;

(3) Failing to take any evasive action to avoid being hit by the Forklift; and

(4) Exposing himself to a risk of injury which he knew or ought to have known.

15.  As mentioned, in the third party proceedings, D1 seeks full indemnity and/or contribution from D2 and D3 for: (1) P’s claim and costs in the main action; and (2) D1’s costs of the main action and the third party proceedings.

16.  D1’s case against D2 in the third party proceedings is that D2, as Ma’s employer, was vicariously liable for the tort of Ma.

17.  Furthermore, it is D1’s case that D2 and D3 were the occupiers and had been jointly managing and using the Premises. It relied upon a number of matters including:

(1) A meeting between Jacky Lau and D1’s director, (“Song”) in around late February 2019 where Jacky Lau told Song that the management of the Premises had all along been carried out by D3;

(2) D2 was a relatively new company compared to D3 and it is highly likely for D3 to have operated the recycling business at the Premises or jointly with D2;

(3) D3 had on numerous occasions held itself out as the operator of the recycling business and manager of the Premises;

(4) D3 had been making payments for rents, expenses and deposits pursuant to the management agreement on behalf of D2;

(5) After the return of the Premises to the Government, a tenancy of the Premises was awarded to D3; and

(6) Jackson was not a shareholder and director of D2 but held himself out as such during the negotiations for extension of the management agreement and liaising with Song concerning P’s intended claims for the Accident.

18.  D1’s case on contribution against D2 and D3 are based on:

(1) ss 3(1) and 4 of the Civil Liability (Contribution) Ordinance, Cap 377 (“CLCO”); and

(2) the contractual indemnity contained in: (a) the 2007 Agreement; and (b) a letter from D1 to D2 dated 22 June 2020 (“the June Letter”) signed by Jacky Lau purportedly on behalf of D2. (Originally, in the pleadings and written opening submissions, D1 also relied upon the letter dated 7 December 2020 (“the December Letter”) for contractual indemnity against D2 and D3. Ms Kwok confirmed in her oral opening submissions that as she accepted that there was no consideration for the December Letter. Therefore she accepted that the December Letter was unenforceable and would not rely on the indemnity contained therein. Nonetheless she submitted that upon the principle of undisclosed principal, D2 had acted as agent of D3 in signing the June Letter and therefore D3 agreed to indemnify D1.)

B3. D2’s and D3’s Case on Liability

19.  As already mentioned, D2 admitted that it employed Ma and was the manager of the Premises at the time of the Accident. As confirmed by Mr Shum, D2 accepts that it was an occupier for the purposes of OSHO and owed a duty of care to P.

20.  In closing submissions, Mr Shum further confirmed that in light of Jacky Lau’s admission since Ma was employed by D2, and D1 had no control over Ma or any involvement of D2’s work or use of the Premises[9], D2 should be liable to P for the Accident.

21.  Whilst D2 and D3 pleaded that D1 and D2 had joint non-exclusive control over the Premises, D2 and D3 have never sought contribution from D1. In closing submissions, Mr Shum confirmed that he does not make any submissions for or against P’s submissions that D1 is liable and accepted that only D2 should be liable to P.

22.  D3’s case is that it was not an occupier of the Premises and was never involved in the management of the Premises prior to 9 May 2019. It denied that D3 owed any duty of care to P. It specifically denied that Jacky Lau had told Song that D3 had been managing the Premises all along. Further, it only acted as agent of D2 in making/receiving payments (for convenience due to the unavailability of Cha and Xia) and was not the undisclosed principal of the management agreement or the June Letter.

23.  In any event, both D2 and D3 alleged that P was contributorily negligent and the particulars of negligence pleaded are:

(1) Failing to pay any or any proper attention to the Forklift. In fact, P had admitted to Jacky Lau at the hospital shortly after the Accident that it was due to his own carelessness that the Accident occurred and P apologized to Jacky Lau;

(2) Failing to take any or any reasonable care for his own safety by standing or remaining in a position which was liable to be hit by the Forklift;

(3) Failing to take any or any proper and adequate precautions for his own safety whilst he apparently knew or ought to have known that it was unsafe to remain in the immediate vicinity of the Forklift when the usage of the Forklift was in progress;

(4) Failing to keep a safe distance from the area where the usage of the Forklift was in progress;

(5) Negligently relying on his own risk-assessment of the usage of the Forklift and choosing to stay within the vicinity;

(6) Failing to pay reasonable regard to his knowledge that he should not remain or position himself near the Forklift and leave the area near the Forklift whilst there was sufficient time to do so before the usage of the Forklift was carried out;

(7) Failing to take any evasive action to avoid being hit by the Forklift;

(8) Exposing himself to an unnecessary risk of injury which he knew or ought to have known; and

(9) Failing to exercise proper care for his own safety in all circumstances.

24.  As for the third party proceedings, as confirmed in Mr Shum’s closing submissions, D2 accepts that it is bound by the contractual indemnity under the 2007 Agreement and the June Letter. However, it is denied that D3 was the undisclosed principal.

C. THE PARTIES’ RESPECTIVE CASE ON QUANTUM

C1. P’s injuries and treatment received

25.  The parties have not seriously disputed P’s injuries as a result of the Accident and the treatment received. The following should therefore be taken as forming part of my finding of facts.

26.  As a result of the Accident, P suffered fractures to the right tibia and fibula and left third, fourth and fifth metatarsals. He was taken to the Accident and Emergency Department after the Accident by ambulance and was hospitalized for 20 days at the Pamela Youde Nethersole Eastern Hospital (“PYNEH”). He was discharged on 23 October 2017.

27.  P attended 13 physiotherapy sessions at PYNEH between 10 October 2017 and 23 October 2017. He also attended 48 physiotherapy sessions at Tuen Mun Hospital (“TMH”) between 28 November 2017 and 27 November 2018.

28.  P was then referred to occupational therapy at TMH. He attended 31 sessions between 5 February 2018 and 14 June 2018.

29.  P was granted sick leave from 3 October 2017 to 2 January 2019 but sick leave is only claimed until 5 December 2018 (429 days).

30.  The parties are agreed that P’s pre-accident monthly income was HK$11,628.33.

C2. P’s case on Quantum

31.  In the Revised Statement of Damages, P claims a total sum of HK$1,000,212.80 (after giving credit to the employees’ compensation received by P from On Kee in the sum of HK$164,366) comprising:

(1) PSLA in the sum of HK$500,000;

(2) Loss of pre-trial income up to the nominal trial date of 1 December 2022 of HK$414,578.80, comprising: (a) HK$174,599.37 for the sick leave period from 3 October 2017 to 5 December 2018 (on the basis of average monthly earnings of the 12 months prior to the Accident as HK$11,628.33); (b) HK$195,133.26 for the period from 6 December 2018 to 31 March 2022 and HK$44,846.17 from 1 April 2022 to 1 December 2022 (on the basis that P was unable to return to this pre-accident job and could and did only work as a part-time cleaner for Taoist Rituals Institute Limited and Ching Chung Taoist Association from December 2018 to March 2022);

(3) Loss of earning capacity in the sum of HK$140,000;

(4) Medical expenses incurred in the sum of HK$1,740 and future medical expenses to be incurred in the sum of HK$80,000 (for the removal of tibial nail);

(5) Travelling expenses of HK$3,000; and

(6) Tonic food expenses of HK$3,000.

32.  As the pre-trial loss of earning was calculated up to 1 December 2022 and given the actual trial took place in December 2024, P claims a further sum of HK$134,538.52 for pre-trial loss of earnings.

C3. D1’s case on Quantum

33.  D1’s case is that only an award of HK$350,000 for PSLA should be awarded on the basis of the authorities.

34.  As for pre-trial loss of earning, P’s monthly income at the time of the Accident of HK$11,628.33 is agreed. D1 also did not challenge the period of sick leave. According to D1, the pre-trial loss of earnings during the period of sick leave should be HK$172,157.43.

35.  As for the period after expiry of the sick leave period, D1’s case is that P should at least have secured a job as a cleaner. Furthermore, as P would have reached retirement age by 1 December 2022, it does not accept that there should be any pre-trial loss of earnings beyond this date. D1’s case is that pre-trial loss of earnings should be HK$102,769.28.

36.  As P has reached retirement age at trial, and there is no evidence he is working, D1 does not accept that P should be awarded any award for loss of earning capacity, which is to cover the risk that at some future date during the claimant’s working life he would lose his employment and suffer financial loss because of his disadvantage in the labour market: see Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306 at 311.

37.  D1 agrees to the total sum of HK$7,740 as special damages for medical expenses already incurred, travelling expenses and tonic food. However, future medical expenses of HK$80,000 for the removal of the tibial nail should not be allowed because the experts opined that this was not required or was optional. Furthermore, at the time, P was not keen to have them removed. In any event, if he wished to do so there was no reason why the removal cannot be done at a Government hospital.

C4. D2’s and D3’s case on Quantum

38.  Although in D2 and D3’s Answer to Revised Statement of Damages and Mr Shum’s opening submissions, D2 and D3 disputed the sick leave period, in his closing submissions it was confirmed that the sick leave period between 3 October 2017 to 5 December 2018 was agreed.

39.  Furthermore, although in Mr Shum’s opening submissions it was submitted on the expiry of the sick leave, on the basis of Dr Chiang’s opinion that P could work in some of the pre-injury type of jobs which involves lesser amount of very heavy lifting, and no sums should be awarded for loss of earning after the sick leave period, this was no longer maintained in closing submissions. Rather, it was submitted that P should have earned an average monthly income of HK$10,360 as a full-time toilet cleaner. Accordingly, P’s pre-trial loss of earning up to 1 December 2022, when he reached retirement age, should be HK$64,679.

40.  Like D1, D2 and D3 claimed that as P had already reached retirement age, and there is no evidence that he is now currently employed, there is no real or substantial risk he would lose his job so there should be no award for loss of earning capacity.

41.  As for special damages, in light of the lack of documentation for travelling expenses and tonic food, D2 and D3 were prepared to accept HK$5,000 in total. However, future medical expenses should not be allowed because the removal of the tibial nail is not necessary and according to the consultation note of Dr Chu Kai Man of 24 October 2018, P was not keen to have the nail removed.

D. THE ISSUES

42.  The main issues that need to be determined are:

(1) How did the Accident occurred;

(2) Whether D1, D2 and/or D3 were occupiers of the Premises and if so whether they breached their duties under s 7 of OSHO;

(3) Whether D1, D2 and/or D3 owed a duty of care to P and if so whether they were negligent and/or breached their duties owed to P;

(4) If D1, D2, and/or D3 were negligent/breached their duties owed to P, whether P was contributorily negligent and if so, what should be the apportionment of liability to P;

(5) Whether D1 is entitled to indemnity or contribution from D2 and/or D3; and

(6) If liability is established, the quantum of damages to be awarded to P.

E. THE WITNESSES

43.  At the trial, the following witnesses gave evidence:

(1) P for himself;

(2) Song for D1;

(3) Jacky Lau for D2 and D3; and

(4) Ma for D2.

44.  It is trite that the resolution of the factual disputes between the parties turn on the credibility and reliability of the witnesses. In assessing the witnesses’ credibility, I bear in mind the inherent probabilities, consistency of the witness’ evidence with undisputed facts or facts shown by other evidence to have occurred, internal consistency of the witness’ evidence, consistency with the contemporaneous documents as well as their demeanour, although the latter can be deceptive and is to be approached with care.

F. MY FINDINGS ON THE ISSUES

F1. How the Accident occurred

45.  Out of all the witnesses, it is not disputed that only P and Ma were at the Premises at the time of the Accident. It is therefore only necessary to consider their evidence on this issue.

46.  P’s evidence was that in the morning of 3 October 2017, as usual he was driven in On Kee’s truck (“the Truck”) by a driver to deliver waste materials for recycling to the Premises. As it was after the October 1 public holidays, the Premises was not very busy. He only saw 2 workers (Ma and Kwong Chai (“Kwong”)) at the Premises and not many materials had been delivered to the Premises that morning.

47.  According to P, whilst the weighing of the goods were being done near the main entrance, he got off the Truck to go to the toilet. The toilet was on the left side of the main entrance where the weighing scales were located. After he came out of the toilet, the Truck had already moved on from where it had stopped for him to get off to further into the Premises where the goods were to be unloaded off the Truck.

48.  When he came out the toilet, he could see the Forklift was operating 30 to 40 metres away, under the area covered by a canopy in front of him.

49.  As he was walking towards the Truck, but before he reached the Truck (having walked on about 20 metres), the Forklift suddenly without any warning reversed out of the area covered by the canopy at a high speed and hit him. His evidence was all along he had clear and constant sight of the Truck and the Forklift in front of him. He denied that he had picked up anything from the floor. However, given the speed at which the Forklift reversed and there being no goods he can hide behind, he could not run away in time to avoid being hit.

50.  P’s evidence is that he has often seen forklift trucks being operated inside the area under the canopy and only where there were lots of goods would they operate in the open area outside the canopy covered area. On the day of the Accident, as there were not many goods on the Premises, the Forklift should not have come out to where he was hit.

51.  He also mentioned that the Forklift had not sounded any alarm when reversing nor were lights turned on whether when it was inside the canopy covered area or when it came out therefrom and hit P.

52.  Whilst he admitted there were signs posted that forklift trucks were being operated in the area under the canopy, these were not very clear.

53.  Notwithstanding the cross-examination by Ms Kwok and Mr Shum, I have no reason to doubt the credibility of P’s evidence as to how the Accident occurred as described by him. Indeed much of his evidence was not contradicted by Ma’s oral evidence.

54.  In Ms Kwok’s closing submissions, she stated that D1 does not take issue with P’s credibility. In Mr Shum’s closing submission, he also did not submit that the court should not accept P’s evidence. The finding of facts he invited the court to make are consistent with P’s account. Accordingly, I accept in full P’s evidence on how the Accident occurred as being the truth and should be taken as part of my finding of facts.

55.  On the other hand, in cross-examination Ma contradicted much of what he had stated in his witness statement. He even admitted that certain part of his evidence was made up. In case of inconsistency between the evidence of Ma and P, I would prefer P’s evidence.

56.  Ma’s oral evidence was that in the morning of the day of the Accident, he was driving the Forklift. Only he and Kwong were working on the Premises. As Kwong was assisting the Truck when it arrived on the Premises, he was driving the Forklift which was usually driven by Kwong and his younger brother Wai Chai (“Wai”). Both Kwong and Wai had licences to drive the Forklift. Ma admitted that he did not have a licence to drive the Forklift and only helped out occasionally by driving the Forklift. He said that he had some training from Kwong and Wai but when asked what training he received, he said they had told him to drive more slowly and safely. He eventually admitted in cross-examination, which initially he denied, that he had previously driven a forklift truck in D1’s factory in Kwai Chung and that he had hit and injured a person in 2004.[10]

57.  Although initially the Forklift was being driven under the canopy, in cross-examination he said that he drove it out from under the canopy as he needed to help unload the goods from the Truck. He admitted that whilst he could have driven the Forklift forward to do so, he drove it in reverse as it was his habit and was more convenient. He claimed to have looked around him and at the side mirrors when he was reversing the Forklift. He said that he did not see P. It was only when he heard P yell did he stop the Forklift but by then the Forklift had went over P’s toes.

58.  When later shown photos for the Forklift taken on the day of the Accident, he agreed from those photos that one could not see any side mirrors. He then confirmed from those photos he now recalls that there were no side mirrors. This is contrary to his witness statement that in his training he was taught to constantly check the available side view mirrors and that he had looked at the side view mirrors before reversing the Forklift.

59.  Furthermore, although in his witness statement he said P should have seen the warning light or heard the alarm of the Forklift as it was reversing, he confirmed in cross-examination that there was actually no sound emitted from the Forklift when reversing.

60.  Even though he said he did not see P, he also admitted that he knew P was not on the Truck and he was waiting for P to walk back to help with the unloading of the Truck.

61.  He also admitted that the signs warning about operation of forklift trucks were only posted around the area under the canopy and new signs were posted by Kwong or Wai a few days after the Accident.

F2. Whether D1, D2 and/or D3 were occupiers of the Premises and if so, whether they breached their duties under s 7 of OSHO

(a) Occupier

62.  Section 3 of OSHO provides that an “occupier” in relation to any premises or workplace, includes a person who has any degree of control over the premises or workplace and, in particular, includes a person who subsection (5) or (6) applies.

63.  Subsection (5) provides that a person who, under a lease or contract, has an obligation for: (a) the maintenance or repair of premises; or (b) the safety of, or the absence of risks to health arising from the condition or use of, any plant or substance located on premises; is taken to be an occupier for the purposes of OSHO.

64.  Subsection (6) provides that a person who, under a lease or contract, has an obligation to provide, maintain or repair a means of access to, or egress from, premises is taken to be an occupier of the premises for the purposes of OSHO.

65.  It follows that in order to determine whether D1, D2 and/or D3 were occupiers of the Premises, I would need to consider whether they had any degree of control over the Premises including any obligation to maintain and repair the Premises.

66.  Both D1 and D2 have conceded that they are occupiers for the purposes of OSHO.

67.  Whilst D3 has denied it was an occupier of the Premises, the contemporaneous documents before this Court support that D3 was operating its recycling business on the Premises at the time of the Accident. These include:

(1) The purchase receipts issued to On Kee on the day of the Accident were headed “宏安柴灣打包廠（劉財記）” with the address of the Premises given and the company chop of D3 applied; and

(2) The expense record voucher issued to On Kee was on D3’s letterhead.

68.  Jacky Lau’s own evidence was these purchase receipts and voucher were typed by the staff of D3. He mentioned that these were printed at the office of D3 on the Premises. Although he said it was done on a gratuitous basis, I do not accept this as true. There is no reason for D3’s chop to be applied to them if only done gratuitously for D2.

69.  Furthermore, from Jacky Lau’s own evidence, it is clear that D3’s involvement in the business that was operating on the Premises goes much beyond just issuing receipt and making payments on behalf of D2.

70.  Firstly, D3 possessed the licence granted by the PRC Customs for D3 to legally import solid waste materials into the PRC. This was a matter which led to Xia, Cha and D3 to incorporate D2 to purchase waste material in Hong Kong and then consign the same to buyers in the PRC. Jacky Lau’s evidence was that D2 would purchase waste materials in Hong Kong and then use D3’s licence to import those waste materials. As D3’s licence was used, when the waste materials were sold to buyers in the PRC, the money could not be received by D2 but was received by D3. It was therefore critical to the operation of the business of D2 to use D3’s licence and bank accounts.

71.  Secondly, in cross-examination Jacky Lau also stated that D2 had no office in Hong Kong. Xia and Cha would use D3’s office when they came to Hong Kong. When D2 was incorporated, the registered office and place of business given was the same as D3’s registered office and place of business[11]. Whilst at the time of the Accident the registered office was stated as the Premises[12], Jacky Lau accepted the office at the Premises belonged to D3.

72.  Thirdly, whilst according to Jacky Lau all workers working on the Premises were employed by him on behalf of D2, he admitted that he would pay them by cash or by cheque. The cash or cheque would either come from D2’s bank account but when Xia’s and Cha’s visits to Hong Kong became less frequent (around 2016 or 2017) the money came from D3’s bank account.

73.  Fourthly, Jacky Lau in cross-examination also mentioned that as D2 imported waste materials by using D3’s licence therefore the money received from the sale of those waste materials to customers in the PRC were received in D3’s bank accounts. He said at the beginning the money would be transferred back to D2’s bank account but later when Xia and Cha visited Hong Kong less frequently and the money in D2’s bank account could not be withdrawn, the money was just kept in D3’s bank account. Furthermore, due to D2’s account being used less when Xia and Cha visited Hong Kong infrequently, D2’s bank account were closed or no longer in operation. In cross-examination, he mentioned this might have been around 2018 or 2019.

74.  Fifthly, payment of bills and administrative fees to be paid to D1 were handled by the accounting department of D3 and Grace Lau (Jacky Lau’s sister who had no position in D2).

75.  In all, I find as a fact that D3 also operated its recycling business together with D2 at the Premises at the time of the Accident. It clearly had a degree of control over the Premises. Accordingly, I find D3 was also an occupier for the purposes of OSHO.

76.  For completeness, I should mention that although Ms Lau relied on instances where according to P’s case, D3 was held out as the operator of the recycling business and Jacky Lau worked as manager of the Premises including: (1) an article published on 8 January 2019 by Epoch Times; and (2) D3’s application dated 29 July 2020 to the Inland Revenue Department for registration of an additional branch of business at the Premises, I found the contemporaneous documents and circumstances at the time of the Accident more relevant and sufficient to demonstrate that D3 was operating its business on the Premises.

77.  Similarly, although Ms Kwok relied upon the following as indicating that D3 was involved in the management of the Premises: (a) D2 was a relatively new company compared to D3; (b) the shareholders and directors of D2 and D3 are related to each other; (c) D3 had on numerous occasions held itself out as the operator of the recycling business and manager of the Premises; (d) the short-term tenancy of the Premises was eventually awarded to D3; and (e) Jackson was involved in the extension of the 2007 Agreement and liaison with Song concerning P’s intended claim, again the contemporaneous documents are sufficient and I would not need to rely on these circumstantial evidence. Furthermore, I am satisfied that D3 was operating its business on the Premises even without regard to Song’s evidence (which I found credible and not seriously dented in cross-examination) that during the meeting in February 2019 with Jacky Lau, he was told that D3 had all along been operating the Premises.

(b) Breach of s 7 of OSHO

78.  Section 7(1) of OSHO provides: “If an employee’s workplace is located on premises that are not under the control of the employee’s employer, the occupier of the premises must ensure that–

(a) the premises;

(b) the means of access to and egress from the premises; and

(c) any plant or substances kept at the premises,

are, so far as reasonably practicable, safe and without risks to health.”

79.  In HKSAR v China Overseas Building Construction Ltd [2007] 2 HKLRD 216, McMahon J highlighted the differences in the duties of an employer under s 6 and of any occupier of premises under s 7 of OSHO. He held that the most significant difference was that while an employer is specifically expressed as being responsible for providing safe systems of work for his employees, the occupier is not expressed as being so responsible, but simply as being responsible for the safety of the premises. In particular, he held that s 7 intended to refer to the safety of the physical premises and the machinery and substances upon it, and not the systems of work adopted (see §§10-11, 16-20).

80.  Ms Kwok and Mr Shum submitted that P’s claim is premised on breach of s 7 but all the pleaded particulars of breach at most concern the system of work adopted. They submitted that P’s claim should fail because the Accident was caused by the activity conducted on the Premises rather than the physical state of the Premises. In any event, Ms Kwok submitted that as D2 admitted that D1 had no part to play in devising the activities that took place on the Premises, it therefore had no control over the system of work.

81.  Ms Lau did not challenge the distinction between activity conducted on and the state of the Premises. In her written closing submissions under the heading of “Occupier’s Liability”, she sought to rely on the case of Uren v Corporate Leisure [2011] EWCA Civ 66. She submitted that in that case the defendant was taking responsibility by organizing activities (in that case competitive games) which ran a risk of causing injury. As the defendant in that case had been organizing the competitions there was an assumption of responsibility and the same can be said of D2 and D3 who organized the activity of driving the Forklift by Ma. To the extent Ms Lau submits that Ds were liable for the activities on the Premises based on this case, the short answer is that Uren was not a case based on our statutory provisions but was decided on the common law duty of care. While in that case the pleaded case included allegations of statutory breaches as recorded in the judgment of Lady Justice Smith, the plaintiff accepted that they did not add anything to the duty which the defendants owed at common law (see §12).

82.  Furthermore, only two matters were expressly relied upon in Ms Lau’s closing submissions to suggest that the state of the Premises were unsafe: (1) no or no adequate proper warning signs; and (2) no designation of forklift operation area and pedestrian area.

83.  Ms Lau relied upon Ma’s evidence that although there were posted warning signs that forklift trucks were being operated under the canopy area, these were not clear and were old. After the Accident, Kwong put up new signs. Ms Lau also submitted that the lack of yellow lines being painted on the ground to delineate forklift trucks operation area and pedestrian area, which Lau confirmed would cost only HK$20,000 to HK$30,000, rendered the state of the Premises unsafe.

84.  Even leaving aside the pleading point taken by Mr Shum, as submitted by Ms Kwok, the alleged lack of adequate warning signs and no designation of area for the operation of forklifts and for pedestrians do not relate to the state of the Premises. Rather, they relate to the system of work adopted for which an occupier is not liable for under s 7 of OSHO.

85.  In any event, I also agree with Ms Kwok’s submissions, adopted by Mr Shum, that given the way that the Accident occurred, Ms Lau’s complaints are a “red-herring”. It is not disputed that P had visited the Premises on many previous occasions and were well familiar with the Premises. He would of course know where the forklift were being operated even if the signs were old and unclear. It was also his evidence which I accept and find as a fact, he saw the Forklift being operated and where is was being operated. Whilst P said because it was not expected for the Forklift to be driven out from the canopy covered area he did see it coming out from under the canopy. Therefore the lack of proper warning or demarcation is not a contributory cause of the Accident. Plainly it was the manner of driving the Forklift by Ma which was the cause of the Accident.

86.  Ms Lau also submitted that the Forklift, which is not disputed to be purchased by D2, was unsafe. Ma confirmed that the Forklift did not have any side view mirror installed and had no warning sound when it reversed. I am not satisfied these rendered the Forklift inherently dangerous or unsafe. Ms Lau submitted that if the Forklift was equipped with a reverse warning sound, P could have noticed its approach in time to avoid being hit. Again, I am not satisfied that this would have made a difference because P’s evidence, which I accept, was that he had his sight on the Forklift and the Truck at all times as he was walking towards the Truck. He had saw the Forklift reversing when it was around 10 metres away from him. However, due the fast speed it was reversing, he was not able to get out of the way in time nor was there anything he could hide behind given there were not objects between him and the Forklift. It was the manner of operation of Forklift which caused the Accident and not that the Forklift itself was unsafe.

87.  In all, although Ds were all occupiers of the Premises, I am not satisfied that they are liable under s 7 of OSHO. The Accident was not due to the state of the Premises or the state of Forklift.

F3. Whether D1, D2 and/or D3 owed duty of care to P and if so whether they were negligent and/or breached their duties owed to P

88.  D2 has admitted that it owed a duty of care and breached the duty of care owed to P. What remains is to decide whether D1 and/or D3 owed any duty of care and was negligent and/or breached its duty of care to P.

89.  In Ms Lau’s written closing submissions she submitted that by reason that P was a lawful visitor and Ds are all occupiers, there is sufficient proximity to impose a duty of care on Ds. No authority was cited for this general statement which I do not accept.

90.  In Luen Hing Fat Coating & Finishing Factory Ltd, an occupier of the premises engaged an independent contractor to do certain works at its premises. The occupier lent the independent contractor an equipment which was not intrinsically dangerous or faulty but the occupier knew or ought to have known that the independent contractor would use the equipment to do the work by a method which was unsafe. Bokhary PJ held that ultimately whether a duty of care existed required a holistic view of: (1) foreseeability; (2) proximity; and (3) the need to be satisfied that it would just, fair and reasonable to impose a duty of care. These three matters overlap with each other and are really facets of the same thing.

91.  In Gauchan Som Prasad, the plaintiff who was employed by the 1^st defendant was injured whilst working at a site. The 1^st defendant was the subcontractor of the 2^nd defendant for the works at that site. At §35, after referring to the authorities including Luen Hing Fat Coating & Finishing Factory Ltd, HH Judge Lok (as he then was) held that there are two important considerations whether the court should impose a duty of care on the part of the principal contractor: (1) whether the principal contractor knew or should have known about the defective system of work; and (2) whether the principal contractor had any control or supervision over such defective system work. The learned judge noted that these were the exact same considerations listed out in the passage of the judgment of Ferguson v Welsh [1987] 1 WLR 1553 quoted in Fairchild v Glenhaven Funeral Services Ltd [2002] EWCA Civ 1881 (in that case an occupier of the premises engaged an independent contractor to carry out certain construction works at the premises) at §130:

“It is possible to envisage circumstances in which occupier of property engaging the services of an independent contractor to carry out work on his premises may, as a result of his state of knowledge and opportunities of supervision, render himself liable to an employee of the contractor who is injured as a result of the defective system of work adopted by the employer. But I incline to think that his liability in such case would be rather that of joint tortfeasor than of an occupier.”

92.  Applying these approaches to the present case, in so far as D1 is concerned, given that it is not disputed between Ds that effectively D1 had sublet the Premises to D2 for its operation of the recycling business and sold all its machinery and dismissed all its employee on the Premises, and it is not seriously disputed that D1 had no control over Ma, the Forklift (purchased by D2) or the system of work at the Premises, I am of the view that there was no sufficient foreseeability or proximity.

93.  The suggestion by Ms Lau that the mode of operation of allowing pedestrians and forklift trucks to share the same area at the same time was reasonably foreseeable to be dangerous depends on the circumstances. In the present case, this Court has heard that the Premises were large and usually the Forklift would be operated in the area under the canopy. There was no cross-examination that operations would not have been hindered practically (apart from the question of costs) by designation of a separate pedestrian area and forklift operation area or that the Accident could have been avoided by such designation. Besides, as demonstrated by the way the Accident happened, even though the canopy covered area was designated or intended to be the area where the Forklift was operated, the Accident still occurred when the Forklift was driven out of that area.

94.  Furthermore, it would also not be fair, just or reasonable to impose a duty of care on D1. Although Ms Lau submitted that D1 has asked D2 and D3 to indemnify D1, and it is true that there are contractual indemnity clauses in the management agreement and the June Letter, this is only one matter that has to be considered in whether or not to impose a duty of care on D1.

95.  In her closing submissions, Ms Lau also submitted that with the power to enter the Premises and to comment on the safety of the Premises, it is fair and reasonable to impose a duty of care on D1. However, this is plainly contrary to the admission of Jacky Lau that D1 had no control over the activities carried at the Premises and it is unreal to suggest that D1 could have entered the Premises to mark on the ground lines delineating the forklift operation area and pedestrian area.

96.  I further do not accept the suggestion of Ms Lau that it is just to impose a duty of care on D1 because it had no right to sublet the Premises and it had profited from subletting the Premises. I cannot see how it is relevant.

97.  As for D3, I have already found above that D3 was operating its business on the Premises together with D2 at the material time. Although according to D2, Ma was employed by it, from the evidence of P, which I accept was truthful, the workers on the Premises were workers of D3 or employed by Jacky Lau whom everyone regarded as the boss and followed his orders. According to Jacky Lau, Kwong would be responsible for assigning the work on the Premises. Jacky Lau’s own evidence was that he would be on the Premises almost daily to supervise the operations. I would find that D3 had the power to control the operation of the Forklift on the Premises.

98.  In any event, it was not also seriously disputed that On Kee was D3’s customer. In operating its business in the Premises to receive the waste products from On Kee and permitting P to deliver and unload the waste products on the Premises where the Forklift was being operated to assist the unloading, it must be reasonably foreseeable that the operation of the Forklift would cause injury to P if the Forklift was not operated in a competent and safe manner by a qualified operator.

99.  In all the circumstances, I am satisfied given the state of knowledge and opportunities to supervise the system of work on the Premises, there was sufficient foreseeability and proximity to impose a duty of care on D3 and it would be fair, just and reasonable to do so.

100.  I further find that D2 and D3 both had played sufficient role in controlling and supervising the system of work at the Premises including assigning Ma to operate a Forklift when he had no licence and was not adequately trained to do so. They breached their duties of care owed to P and were negligent in assigning or allowing Ma to operate the Forklift in an incompetent manner.

F4. Whether P was contributorily negligent

101.  The burden of establishing contributory negligence rests on Ds. In order to establish the defence of contributory negligence, the defendant must prove first, that the plaintiff failed to take “ordinary care of himself” (such care as a reasonable man would take for his own safety) and secondly, that his failure to take care was a contributory cause of the accident. See Wong Kin Man v Ma Tsz Wai [2022] HKCFI 1826 at §29.

102.  Furthermore, although the standard of care when addressing contributory negligence is the same as when considering negligence from the perspective of breach of duty, it has been suggested that it is both in accordance with common sense and good morals to hold a man need not pay as much attention to his own safety as he does to the safety of others. See Charlesworth & Percy on Negligence, 15^th Edn, §§4-11 and 4-12 and Chan Kam Sum by Li Chu Ying, his next friend v Ho Chueng Shing & Anor (unrep) HCPI 828/1999, 25 July 2000 at §14.

103.  The above legal principles have not been disputed by Ms Kwok and Mr Shum.

104.  Although Ms Kwok and Mr Shum relied on the case of Ma Yuet Pong v Chan Kar Wai and Others (unrep) HCPI 577/2010, 3 October 2012, which they submitted similarly involved the plaintiff being hit by a forklift truck, the facts of the present case as found by me are very different to that case. In that case, shortly before the accident the plaintiff noticed the forklift was reversing and thought it would reverse to the left side so he chose to stand near a stack of goods on the right side. Thus the plaintiff in that case appreciated the risk and consciously made a gamble of which side the forklift would reverse. The court held that the plaintiff should have kept a proper look out and noted that the plaintiff conceded that there was a momentary loss of concentration when the forklift was nearest to him and as a result he was hit. As he had failed to keep a proper look out for the approaching forklift, he was found contributorily negligent.

105.  In this case, as I found as a fact that at all times P had clear and constant sight of the Truck and the Forklift in front of him and that he did not pick up anything from the floor (as was suggested in cross-examination by Mr Shum), I do not find that P had failed to keep a proper look out for the Forklift. Furthermore, given the high speed at which the Forklift reversed and there being no goods he can hide behind, P could not have avoided being hit. Therefore, even if there had been any momentary loss of concentration or inadvertence on P’s part, the Accident could not have been avoided. Ma himself admitted that P was not injured because P was careless or that P could have been avoided being hit.

106.  In any event, carelessness and momentary inadvertence does not amount to contributory negligence: see Mok Merla & Mok Siu Lin and others v Ocean Crown Transportation Limited (unrep) HCPI 266/1998, 11 July 2002 at §18. Furthermore, I am of the view that there is insufficient evidence to find on the balance of probabilities that the Accident occurred as a result of P’s contributory negligence.

107.  In light of these circumstances, I do not find P contributorily negligent.

F5. Whether D1 is entitled to indemnity/contribution from D2 and D3

108.  Section 3(1) of CLCO provides that: “Subject to the following provision of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).” As I have not found D1 liable to P for damages, D1 is not liable to P under s 3(1) of CLCO.

109.  If I were wrong, given my findings above and the parties’ acceptance that D1 had no control over the system of work over the Premises including Ma and the operation of Forklift, and since D2 and D3 has never suggested that D1 should be liable to P nor sought contribution from D1, I would have found that it would be just and equitable under s.4(1) of CLCO for D2 and D3 to completely indemnify D1 for damages and costs payable by it to P. With respect, I do not accept there is any basis for Mr Shum to submit in his closing submissions that D1 should bear 1/3 of the responsibility.

110.  However, as submitted by Ms Kwok, even though I find that D1 is not liable to P, I still have to consider whether D2 and D3 are liable to indemnify D1 for its costs of these proceedings.

111.  At no point throughout these proceedings did D2 take issue with the validity and enforceability of the clauses in the 2007 Agreement and the June Letter. This is confirmed by Mr Shum’s closing submissions that it is indisputable that D2 is bound by both the 2007 Agreement and the June Letter.

112.  Clause 8.3 of the 2007 Agreement provides that “[D2] shall indemnify [D1] against all liabilities, claims, demands, actions, proceedings, damages, loss, costs and expenses arising directly or indirectly from its occupation, use and management of [the Premises]”.

113.  Furthermore, the June Letter provides inter alia that:

(1) [D2] shall continue to perform [D2’s] obligations under the [2007 Agreement] … including but not limited to …(ix) indemnifying [D1] any and all losses, cost, damage and expenses in connection with the [2007 Agreement] and the Tenancy Agreement; and

(2) [D2] shall indemnify and hold [D1] … harmless from all and any claims, liabilities, damages, costs, actions and/or proceedings of whatever nature or whether raised during the term of this Letter or after the termination of the Management Agreement (‘Third Party Claims’), arising from or in connection with the Premises and/or management of the Premises, including but not limited the damages of the seawall or seabed, or liabilities to [Ma] … In any Third Party Claims, we reserve the right to engage lawyer(s) to participate the defense by your company in addition to the compensation to any third party, you shall be liable for the cost and fee charged by our engaged lawyer(s)…”.

114.  Mr Shum in his closing submissions fairly agreed that the above provisions included the legal costs of D1 in these proceedings.

115.  Although D3 did not sign the 2007 Agreement and the June Letter, and despite Mr Shum’s closing submissions that D3 is not bound by them, the fact remains that Jacky Lau had admitted in cross-examination that he signed the June Letter on behalf of D2 and D3.

116.  Given the admission by Jacky Lau that he had signed the June Letter on behalf of D2 and D3, I cannot see any basis for Mr Shum to submit that D3 is not bound by the June Letter. Further, given that admission, it seems that D3’s case that it was not the undisclosed principal falls away and cannot be maintained.

117.  In any event, it is plain from the correspondence between the parties as early as March 2018 when D1 wished to terminate the 2007 Agreement and return the Premises to the Government, D3 had been seeking for the extension of the management agreement until D3 can make a bid for the Premises. The agreements for the extension of the 2007 Agreement were signed on behalf of D3 as well as D2. See eg:

(1) Letter from Jacky Lau handwritten on D3’s letterhead dated 3 April 2018 requesting the extension of the tenancy of the Premises by D1;

(2) Jackson’s email to Song dated 6 November 2019 written on behalf of D3:

“Dear Mr Song,

We know that the situation for us and you are really difficult, but is that possible to extend for the land use till the first season of 2020, the EPD really want to take the chai wan land for the biding process, unfortunately, the social chaos make the Legislative Council cannot operate normally. We hope to see the change after the election on Nov 24^th.

Moreover, the government had to deduct 50% for our rent of the land for 2 seasons (which is from October 2019 to March 2020), so we sincerely ask for your help, please inform your company our hardships, let us continue to use to March 2020. And we can meet on Nov 12nd for more details, but please don’t inform the government yet, please let us meet before it, thank you.

Best regards,

Jackson Lau

Lau Choi Kee Papers Co Ltd”

(3) Grace Lau’s email to Song on 29 November 2019 which confirmed the letter dated 15 November 2019 for extension of the 2007 Agreement to end of June 2020 was signed on behalf of D2 and D3:

“Dear Xiao Song,

The letter was signed by [Jacky Lau] is on behalf of [D3] N also on behalf of [D2].

Best regards from Grace of Lauchoikee”

118.  Although in cross-examination Jacky Lau tried to shift the blame to Grace Lau for using the wrong letterhead and that she was the one who prepared the documents for signing by him without fully explaining the content, I find it incredible with his experience and reputation in the recycling business to claim it was a mistake to use D3’s letterhead. Besides, it is clear from reading the correspondence between the parties as a whole, that it was represented that it was D3 who was operating on the Premises and wished to continue to use of the Premises upon a rebid of the tenancy.

119.  Given the June Letter was to further extend the 2007 Agreement, which had been first extended by the letter dated 15 November 2019, which was confirmed by Grace Lau’s email as having been signed by D2 and D3, there can be no doubt it must have been signed on behalf of D2 and D3.

120.  Furthermore, if D3 was not a party, it makes no sense for D1 to have the right to terminate the 2007 Agreement by serving on any of Jackson, Jacky Lau or Grace Lau notice of such pursuant to paragraph 1 of the June Letter. Jackson and Grace Lau had no involvement or position in D2 but only in D3. The June Letter also referred to requiring “at your company’s expense echo-sounding survey plans of the seabed” which as a matter of fact was commissioned by D3 and provided to the Government by D3[13].

121.  In all, if necessary, I also find that D3 was a party to the June Letter and is liable to indemnify D1 in accordance with the terms of the June Letter. I also do not accept Mr Shum’s submission that the existence of clause 12.7 of the 2007 Agreement, which provides the 2007 Agreement and all rights under it may not be assigned or transferred by either parties without the prior consent of the other, excludes or is inconsistent with D3 being a party to the June Letter. For the avoidance of doubt, I have also considered but do not accept Mr Shum’s other submissions as to why the terms of the June Letter (expressed or implied) otherwise exclude D3’s right to sue and its liability to be sued and that the true and only principal was D2.

F6. The quantum of damages to be awarded to P

(a) Extent of Injuries

122.  The extent of injuries suffered by P and the necessity of medical treatments received by P have not been seriously disputed by Ds. Whilst in Mr Shum’s opening submissions he stated that P appeared to have overstated and/or exaggerated his pain in the joint medical examination, this was never put to P in cross-examination and not maintained in Mr Shum’s oral closing submissions.

123.  According to the Joint Medical Report following an examination of P on 7 October 2021 conducted by Dr Chiang and Dr Tio, the following findings were made:

(1) General condition: in good health; walking unaided, normal gait; able to perform tiptoe walking; able to perform heel walking; good balance when standing on single leg; and could squat down fully;

(2) Examination of right leg, knee and ankle: no deformity; no swelling; 2.5 cm scar over anterior knee; proximal 2 palpable locking screw head adjacent to the 2.5 cm scar; multiple stab wounds over shin and medial ankle; 17 cm curvilinear scar over posteromedial aspect; tenderness over scars; on medial distal tibia, 1 palpable locking screw head; swelling and tenderness over distal longitudinal scar; girth (thigh 32 cm (right) and 34 cm (left) and maximal calf girth 29 cm (right) and 29 cm (left)); range of motion 1-140 degrees (right) and 1-150 degrees (left); ligament intact; muscle power grade 5 - over right knee; McMurray’s sing: negative; Patellofemoral joint grinding revealed crepitation over both knees; right side mild pain, left side negative; sensation over medial shin reduced by 30%, lateral aspect normal; muscle power: grade 5 – over right ankle; right ankle: no laxity; right foot, no complex regional pain syndrome; and

(3) Examination of left foot and ankle: diffuse mild tenderness over left forefoot; range of motion of dorsiflexion:15 degrees (right), 30 degrees (left), plantarflexion 60 degrees (right), 60 degrees (left), inversion 30 degrees (right), 30 degrees (left), eversion 10 degrees (left), 10 degrees (right).

124.  According to Dr Tio, “the prognosis is fair with residual pain/tenderness, discomfort and fatigue on prolonged walking, especially stair/slope walking. He will also have limitation on exertional activity. The overall lower limb endurance and power would be reduce. Removal of tibial nail is optional. If [P] opts to have it removed, it can be done at a nominal charge at the government hospital or the cost of such removal would be up to HKD80,000 in the private market. The subsequent rehabilitation may take up to 8 weeks. Otherwise, there is no indication for [P] to receive further investigation, treatment or operation.”

125.  According to Dr Chiang, “further conservative treatment or operative treatment including implant removal is not required.”

126.  As for their opinion on the working capacity and prognosis, Dr Tio opined, “Orthopaedically, [P] would not be able to resume his pre-injury work as a recycling worker as echoed by the occupational therapist. With residual pain and weakness of right leg and left foot, he will have difficulty on prolonged standing, walking and climbing. He will also have limitation on frequent heavy lifting and carrying. His current job as cleansing worker working in a monastery with relatively light duty is a suitable replacement.”

127.  Dr Chiang opined, “[P] described that he was required to handle heavy weights of 50 to 60 kgs by himself in the pre-injury employment and he might not be able to work with full capacity in the pre-injury employments. Physically, with the satisfactory overall recovery from ‘the injury’, he could work in some of the pre-injury type of jobs which involve lesser amount of heavy lifting similar to that of the pre-injury employment. With reference to his age, by the time of completing the rehabilitation in November 2018, he could also work in alternative jobs such as cleaner, gas station attendant, messenger, car park attendant and shopkeeper.”

128.  In his evidence, P updated his present medical condition. He said that his daily life is somewhat disturbed. He would have leg cramps on and off in the middle of the night and he could feel pain during change of weather. He also does not walk as well as before and due to his present conditions he has frequent quarrels with his wife.

(b) PSLA

129.  Ms Lau submitted that P’s injuries fall within the “serious injury” category of disablement as set out by the Court of Appeal in Lee Ting Lam v Lee Kam Ming [1980] HKLR 657 at 659. Ms Kwok and Mr Shum have not disputed this.

130.  Ms Lau submitted that the following cases are similar to the present case:

(1) In Ho For Sang v Lau Sun Choi and Another (Unrep) HCPI 584/2001, 6 December 2002, a forklift truck ran over the feet of a plaintiff, a car park attendant. He suffered dislocation of the left second, third, fourth distal interphalangeal joints of the toes with compound fracture of the left fifth metatarsal bones and fracture of the right second metatarsal bones. He underwent surgery and skin grafting. He complained that he still had ache and numbness on both feet and was not able to stand or walk for longer than 30 minutes. Master Levy (as she then was) observed at the hearing that the plaintiff still had to rely on a stick to walk and walked with a limp dragging more heavily on his left foot as his toes on the left foot were not able to the ground. The learned Master considered the plaintiff’s injuries came within the category of “serious injury” and awarded HK$450,000 (equivalent to HK$706,063);

(2) In So Sup Ng v Chung Po Moon Catole and another (unrep) HCPI 662/2012 & HCPI 658/2012, 21 July 2014, a forklift truck hit the plaintiff, a transportation worker. He suffered fractures of right tibia, right medial malleolus and right fibula. He underwent the following operations: (a) surgical toileting and suturing of wounds; (b) closed reduction and intramedullary nail fixation to right tibia; and (c) closed reduction and screw fixation to right medial malleolus. He received 24 sessions of physiotherapy and 3 sessions of occupational therapy. During examination by the expert, the plaintiff complained of pain over right leg from knee to ankle. The pain was worse at night and there was pain 4-5 nights a week. He required analgesics on average every other day to relieve pain. PSLA was awarded at HK$330,000 (equivalent to HK$400,224);

(3) In Chan Kui v Lee Fai trading as Fai Kee Timber (unrep) HCPI 126/1995, 17 February 1997, the plaintiff, a wood sawing worker, suffered minor head injury and fractures to his left tibia and right fifth metatarsal bone base. He underwent two operations in the left knee. The plaintiff was awarded HK$350,000 (equivalent to HK$499,782); and

(4) In Lam Chor Mun v Ho Tin Wah and Another (unrep) DCPI 1093/2005, 14 March 2007 where the plaintiff a minor was knocked down by a van. She lost consciousness for a while after the accident. She suffered fracture to left distal tibia, fibula and fourth and fifth metatarsal bones. She received the following operations: (a) debridement of wound and close reduction and internal fixation of left distal tibia and fibula; (b) debridement and reduction and fixation of the toe fractures; (c) wound debridement and skin grafting; and (d) excision of scar over the dorsum of left foot and skin grafting. She received 13 sessions of occupational therapy and 12 session of physiotherapy. The plaintiff had residual pain in her left knee, left foot with prolonged walking and standing, stiffness of toes on her left foot and deformity of the fourth toe on her left foot. She had scarring at her right groin, left groin, left shin and skin grafted site scars. PSLA of HK$420,000 (equivalent to HK$651,168) was awarded.

131.  I am of the view the injuries suffered by P is comparable to So Sup Ng and Chan Kui. The injuries suffered by the plaintiffs in Ho For Sang and Lam Chor Mun were clearly more serious than P’s.

132.  Ms Kwok and Mr Shum also cited a number of cases which they submitted were comparable. Having considered them all, I find the following more similar to the injuries suffered by P:

(1) In Leung Yiu Sheung v Pa Ling Logistics Company (unrep) DCPI 2458/2016, 16 April 2019, the plaintiff was a driver and delivery worker who was hit by a cage of food which fell from the tailgate of a truck which he was unloading. He suffered fractures of left tibia and fibula. Intramedullary nailing of the left tibia was performed which was later removed. He attended 7 physiotherapy sessions. He still complained of left leg numbness, stiffness and pain, unable to walk for long period of time, difficulty in squatting and can only walk on stair slowly. He also had left leg weakness and difficulties in carrying heavy items. A sum of HK$450,000 was awarded for PSLA; and

(2) In Ma Yeut Pong, the plaintiff was hit by the forklift truck and suffered fractures to his left distal tibia, fibula and second to forth metatarsals. He received operation for closing reduction and internal fixation of tibia and fibula. He also received outpatient orthopaedic treatment after discharge from hospital. At trial, he was able to walk with normal gait but complained of residual pain and stiffness in the left ankle and residual pain in the left forefoot. He also cannot carry and lift heavy objects. A sum of HK$330,000 (equivalent to HK$433,450) was awarded for PSLA.

133.  Having regard to P’s injuries and the above authorities, a sum of HK$430,000 is appropriate.

(c) Pre-trial Loss of Earnings

134.  There was no dispute that P’s average monthly income for the 12 months prior to the Accident was HK$11,628.33.

135.  The period of sick leave from 3 October 2017 to 5 December 2018 (429 days) was also agreed.

136.  Accordingly, the pre-trial loss of earnings and MPF during the sick leave period should be HK$11,628.33 x 429/30 days x 1.05 = HK$174,599.37.

137.  From the report of the occupational therapist and the Joint Medical Report, it is clear that after the Accident, P could not resume his pre-accident job. Both Dr Tio and Dr Chiang opined that a cleaner was a suitable alternative. From the Quarterly Report of Wage and Payroll Statistics (December 2018) the average monthly earnings of a cleaner was HK$9,585 (general) to HK$10,360 (lavatory). I find that at least P should have been able to work as a general cleaner and earn a monthly wage of HK$9,585.

138.  Given that there was no evidence that P was working beyond the retirement age of 65, the loss of earnings between the expiration of sick leave (6 December 2018) and P reaching the age of 65 (1 December 2022) should be: (HK$11,628.33-HK$9,585) x 1457/30 x 1.05= HK$104,199.61.

139.  The total pre-trial loss of earnings is therefore HK$278,798.98.

(d) Loss of Earning Capacity

140.  As mentioned, there is no evidence that P is working or that he had worked beyond his retirement age. An award for loss of future earning capacity is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and suffer financial loss because of his disadvantage in the labour market. See Yu Kwok Wing at 311I-312C.

141.  No award should be made for this head of damages.

(e) Special Damages

142.  The parties are agreed on the medical expenses already incurred in the sum of HK$1,740. Given the lack of documentary evidence, I agree that HK$3,000 for travelling expenses and HK$3,000 for tonic food are reasonable. I would therefore award a total of HK$7,740 under this head of damages.

(f) Post-trial Expenses

143.  I would not award HK$80,000 for removal of the screws given the opinions of Dr Chiang was that it was not required and Dr Tio that it was optional.

144.  There is also no reason why it could not be done at the government hospital which would only cost a nominal charge according to Dr Tio. Although in his oral testimony, P said he might have to wait 3 or 4 years, given the screws have been in place for 7 years and prior to these proceedings P had not indicated any desire to remove them, I do not see any urgency to remove them now.

145.  I would therefore make no award under this head of damages.

G. CONCLUSION AND ORDERS

146.  In summary, P is entitled to an award of:

(1) HK$430,000 for PSLA;

(2) HK$278,798.98 for pre-trial loss of earnings; and

(3) HK$7,740 as special damages.

147.  After taking into account the employees’ compensation already paid by On Kee to P in the sum of HK$164,366, I would give judgment in favour of P against D2 and D3 in the sum of HK$552,172.98. P’s claim against D1 is dismissed.

148.  There will be the usual award for interest for general damages at 2% from the date of the Writ of Summons to the date of judgment herein, and on special damages from the date of the Accident to the date of this judgment at half judgment rate and thereafter at judgment rate until payment.

149.  In respect of the third party proceedings, I would order D2 and D3 to fully indemnify D1 for its costs of these proceedings.

150.  As for costs, I make the following nisi orders which shall become absolute in the absence of any application to vary within 14 days from the date of the handing down of this Judgment:

(1) P do pay D1’s costs of the main action, to be taxed if not agreed, with certificate for counsel;

(2) D2 and D3 do pay P’s costs of the main action, to be taxed if not agreed, with certificate for counsel;

(3) D2 and D3 do pay D1’s costs of the third party proceedings, to be taxed if not agreed, with certificate for counsel; and

(4) P’s own costs to be taxed in accordance with the Legal Aid Regulations.

151.  Lastly, I thank counsel for their helpful assistance.