Tsang Ho Sang v. Sunbase Environmental Hygiene Ltd
Read the full judgment text of DCPI 1422/2013 on BabelCite. This District Court judgment was delivered on 7 December 2015.
1. The plaintiff’s claim is for damages for personal injury arising out of an incident on 11 January 2013 inside the People’s Liberation Army Barrack at Stanley, Hong Kong Island (“the Site”), which was a restricted area.
Cited by 3 cases · Cites 9 cases
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DCPI 1422/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO. 1422 OF 2013 ------------------------
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________________________ JUDGMENT 1.The plaintiff’s claim is for damages for personal injury arising out of an incident on 11 January 2013 inside the People’s Liberation Army Barrack at Stanley, Hong Kong Island (“the Site”), which was a restricted area. Background 2.The plaintiff, Tsang Ho Sang (“Tsang”), was employed by the defendant, Sunbase Environmental Hygiene Limited (“Sunbase”), as a cleaning worker. Since January 2012, Tsang was assigned to work at the Site. All workers working at the Site were required to gather at the entrance where Sunbase would arrange transportation, usually a light goods vehicle by registration number LG 1486 (“the Van”), to transport the workers to report duty at the management office inside the Site. 3.Sunbase is a subsidiary company of Sunbase International Properties Management Limited, the registered owner of the Van. 4.Seating capacity of the Van was 6, excluding the driver. There were 2 rows of passenger’s seats located at the front part of the Van. The rear part of the Van, as usual, was the goods compartment and was not supposed to carry any passenger. However, the practice of the Van was that wooden planks would be placed on both sides of the goods compartment and served as passenger’s seats. 3 workers would sit on each side resulting a total of 6 workers would sit inside the goods compartment. There was no safety belt provided for those seats, or more accurately, those wooden planks, inside the goods compartment. 5.At about 7:30am on 11 January 2013, Tsang was the last one who got on the Van. At that time, the first and second rows of the passenger’s seats were already occupied. 6 workers, including Tsang, sat on the 2 wooden planks placed inside the goods compartment of the Van at that juncture. 6.Tsang sat on the left hand side at the last seat (if it is a seat), ie, at a position closest to the rear door in the left hand side, of the goods compartment. When the Van was on its way heading towards the management office, Tsang somehow got out from the Van. Tsang said that the rear door of the Van was opened by itself and he was thrown out from the Van. His version, however, was sternly disputed. The case of the defendant was that the rear door of the Van was opened by Tsang himself, who then walked down the Van onto the road and subsequently sat down on the road. 7.In any event, an ambulance was called and Tsang was taken to the hospital. Later on, he was granted sick leave for 8 months and did not resume working for Sunbase. Issue on liability 8.Both Mr Lam, counsel for the plaintiff, and Ms Loh, counsel for the defendant, submitted that for liability in this case, there was only one issue of trial, ie, under what circumstance Tsang got out from the Van. The plaintiff’s case 9.The Van was not parked in a position with its front pointing up the road towards the management office. On that day, Chan Siu Kwan (“Chan”), the driver, was required to move backwards with a turn. Then the Van became straight parallel with the road on the slight upward slope. It travelled straight up. Tsang said that at that time, the Van wobbled and he therefore rose up his hands pressing against the top of the goods compartment to maintain his balance. At that juncture, the rear door suddenly opened and he was then being thrown out from the Van onto the road. He felt pain in his head, neck, lower back and buttocks. 10.Cheung Yau Kwai (“Cheung”) was one of the workers sitting inside the goods compartment at that time. He was sitting in the middle, or the 2nd seat, of the left wooden plank, ie, on Tsang’s left hand side. He did not witness how Tsang got out from the Van. He was originally looking at the direction of the front side of the Van. Due to some light, he looked back. Then, he saw Tsang already lying on the road about 30 feet away behind the Van. He yelled out that somebody had fallen out from the Van and asked the driver to stop. The defendant’s case 11.Yeung Man Wa (“Yeung”) was the senior administration and personnel manager of the parent company of Sunbase. She did not witness the incident. She was told by Chan that workers inside the Van had shouted “somebody had fallen out from the Van”. She was also told by Chan that somebody witnessed Tsang opened the rear door and walked down by himself. She therefore agreed that what she was being told by Chan were 2 different versions of facts. She decided to incorporate them into a single version when she filled in the Form 2 Notice on 24 January 2013 as required by the Labour Department. 12.Lee Ming Cheung (“Lee”) was in charge of the maintenance and repair of the Van. He produced all repair and maintenance records of the Van in 2012 and said that there was no record showing any malfunction of the rear door lock. In particular, he checked the Van 10 days prior to the incident and found that the rear door lock was functioning properly. After the incident, the Van was delivered to the Transport Department for checking. According to the Vehicle Repair Order dated 14 January 2013 issued by the Transport Department, the rear door lock of the Van was not required to be fixed. 13.Lam Mei Hing (“Lam”) was a worker waiting for the Van at a gazebo at the entrance. He saw the workers got on the Van. Then, the Van backed up with a turn and moved straight on the road. The Van did not move smoothly but choked for a few times, and then it stopped for a little while. He then saw Tsang opened the rear door with his right hand and walked down from the Van. Then, Tsang sat on the road. He said that another worker Yik Leung Man (“Yik”) was also waiting for the Van at that time. He and Yik walked towards Tsang after Tsang got off the Van. Then, he heard Tsang made a complaint of head and back pain. He told Chan, who had already got off the Van and walked to Tsang’s position, that Tsang opened the rear door of the Van and walked down by himself. 14.Chan was the driver of the Van on that day. He said that before he drove the Van, there was some loud verbal exchange between Tsang and another worker Chau Kam Ching. When all workers got on the Van, he started to drive. He heard some verbal exchange between Tsang and another worker Wong Lai Tong (“Wong”). When he drove the Van, it did not move very smoothly and stopped for awhile. After travelling for a distance, he heard somebody yelled that someone had fallen out from the Van. He stopped the Van immediately and walked towards Tsang, who was lying on the road about 5 metres behind the Van. Then he asked Tsang why the rear door opened. Tsang did not answer but simply requested to call an ambulance and the police. Then, he called the ambulance and Tsang called the police. He described Tsang appeared as lying on the ground with ease. He also said that Tsang did not appear to be painful. In the witness box, he said that Tsang complained for pain in the neck, head and back without mentioning that he had hit himself (“撞到”). He also mentioned that Yik and Lam told him that they saw Tsang opened the rear door of the Van and walked down onto the road by himself. Later on, he reported this matter to Yeung. He admitted in the witness box that there were previous occasions that the rear door lock of the Van did not function normally but emphasized that it happened a long time ago and the problem had been fixed. 15.Keung San Ho (“Keung”) was sitting in the middle seat of the right hand side inside the goods compartment of the Van. He did not witness how Tsang got out from the Van. But he recalled there was loud verbal exchange between Tsang and Wong. He also recalled that the Van had to move backwards at first, then stopped for changing its gear and moved forward. At that time, he looked at the direction to the front of the Van. Then, when he looked back, he saw Tsang was sitting on the road at a distance of a length of one bus long behind the Van. He then yelled to Chan that someone had fallen out from the Van and asked him to stop. In the witness box, he agreed that the rear door lock of the Van had opened by itself for some occasions prior to the incident but that happened a long time ago, may be 1 or 2 years prior to the incident. 16.Sunbase also produced the police statement of Yik dated 25 February 2013 in support of its case. In Yik’s statement, he mentioned that Tsang opened the rear door with his right hand and then walked down from the Van by himself. Then, Tsang sat down on the road. Discussion 17.After taking into account all the evidence, I accept Tsang’s case and find that he was being thrown out from the Van instead of opened the rear door and then walked down by himself. I shall state my reasons firstly from Tsang’s case and then from Sunbase’s case. 18.Ms Loh submitted that Tsang’s evidence could not be accepted. When Tsang was asked why and how he had fallen and landed on the left side of his body, Tsang replied that he could not explain. In fact, immediately before the “falling”, Tsang was sitting at the left hand side of the goods compartment with his right side facing the rear door. As the Van was moving straight, ie, not turning, at the time of the “falling”, Ms Loh submitted that Tsang’s injury should be on the right side of his body. The injury sustained by Tsang, however, was on his left side and that was unreasonable. 19.Further, Tsang did not suffer any open wound, not even abrasion, bruise or swelling upon the “falling” out from the moving Van and that was, in Ms Loh’s view, unreasonable, especially in light of the “sturdy body and weight” of Tsang. The initial records at Accident & Emergency department (“A&E”) of the Pamela Youde Nethersole Eastern Hospital (“PYNEH”), which was the first record after examination by doctor, only recorded dizziness and neck pain, but no limb parathesia, no loss of consciousness and no head injury. Tsang’s complaints of “landed on left shoulder and buttock, head injury …… headache over occipital region, left sided neck pain, left shoulder & left buttock pain” was made later at the Orthopaedics & Traumatology department (“O&T”) of PYNEH . 20.Taking all the circumstances into account, I am not persuaded that Tsang’s injury was on his left hand side would impeach his overall credibility. If Tsang could have maintained his balance at the material time before he fell, he would not have been thrown out from the Van. Probably, he somehow turned his body during the “falling” and that’s why his injuries were at his left side. It is acceptable that Tsang could not describe how he fell as what happened must be in a split of seconds. 21.The accident happened in January and Tsang was wearing long sleeve clothing with a backpack. The speed of the Van was low at the material time. I do not find it strange despite the absence of any open wound. That also explains why Tsang did not shout or yell during or after the fall. 22.After the fall, Chan had come over to Tsang asking him on what had happened. Tsang did not answer but merely requested for an ambulance and a report to the police. Tsang also agreed under cross examination that he did not mention to anybody that the rear door of the Van suddenly opened by itself at the scene. Ms Loh submitted that it was impossible for Tsang not to make an immediate complaint on spot to Chan that the rear door opened by itself. I do not agree with Ms Loh. People might react differently after an accident. Someone concentrates at complaining. Someone might just focus at seeking medical treatment and/or to report the matter to police. I do not find the response of Tsang unreasonable. 23.According to the record complied by the ambulance man, Tsang complained that he “fell out from compartment”. According to the clinical notes made by the treating doctor at the A&E, Tsang made the same complaint. Subsequent to the incident, he was admitted to hospital for treatment. Although there was no objective medical finding to substantiate injury such as an open wound or fracture, Tsang’s complaint to the ambulance man and the treating doctor was consistent with his version. Further, it is indisputable that at the material time, the speed of the Van was low. That also explains why Tsang did not sustain open wound and/or serious injury at that time. 24.Ms Loh also submitted that nobody, particularly those inside the goods compartment, came up to support Tsang’s case. I cannot accept Ms Loh’s submission. Tsang did ask Cheung to testify for him although Cheung’s evidence was in my view neutral. Other workers sitting inside the goods compartment might not witness what happened. 25.I also notice that Tsang gave a statement dated 22 February 2013 to the police and mentioned that at the material time, the Van had made a U-turn to its right. Under cross examination, Tsang frankly admitted that the version in the police statement was not correct. He said that he made a mistake. I accept his explanation and find that he merely made a genuine mistake. 26.I accept that there were verbal exchange between Tsang and other workers on that day. However, I do not accept that would drive Tsang to make up a story to the extent as now put forward by Sunbase. 27.Tsang was unable to tell for sure who closed the rear door. Still, he admitted that it was the usual practice for the last one who got on the Van to assume that responsibility. In the circumstance, I find that it was Tsang who closed the rear door on that day. 28.Cheung’s evidence, in my view, was neutral. What he saw was consistent with both Tsang’s and Sunbase’s case. 29.Having heard Tsang’s evidence in court and taking all the circumstance into account, I accept his evidence. 30.In respect of Sunbase’s case, the most important witness were Lam and Chan. Lam testified that he witnessed Tsang got off the Van by himself. He then told Chan, who was the driver, what he had seen. Having heard their evidence in court and taking all the circumstance into account, I do not believe Lam and Chan. 31.According to Chan, he was told by 2 workers (Lam and Yik) that Tsang walked down, instead of being thrown out, from the Van. It follows that Chan should have a strong suspicion if Tsang was really victim of an accident. In his first written report dated 11 January 2013, however, he wrote :
32.He used the words “跌出”, meaning “fallen out”, to describe what happened. He did not mention anything about Tsang opened the rear door by himself. He did not mention there were 2 witnesses that saw Tsang walked down from the Van. He did not mention the name of Lam and Yik. In the witness box, he explained that the said report was merely intended to be an accident report. He also explained that he had reported the matter, including what he was being told by the 2 witnesses, to his superior and thought that the police would investigate the matter. I find his reasons implausible and contrary to common sense. At the material time, he was the driver driving the Van which was overloaded with passengers inside the goods compartment and without safety belt. He would be very mindful if Tsang walked down by himself or was fallen out from the Van. Had he been told by Lam and/or Yik as alleged, he would have put it down clearly in the said report. The absence of description of what Lam and Yik allegedly told him at scene in the said report is contrary to common sense and inherently implausible. In fact, according to the version in the said report, it supported Tsang’s version of how the incident happened. Although he subsequently told the police that Lam and Yik witnessed how Tsang got off from the Van, the police statement was dated 25 February 2013, more than 1 month after the incident. I do not accept what he said in the police statement. In the circumstance, I do not accept that Lam and/or Yik had told Chan that Tsang opened the rear door with his right hand and then walked down the Van by himself at the scene. I therefore also do not believe Lam. 33.Furthermore, in the witness box, Lam said that he saw Tsang closed the rear door with his right hand. Although who actually closed the rear door on that day is not really important, Lam’s version was directly contradicted by his own statement given to the police on 29 March 2013. I heard no reasonable explanation for that contradiction. I find that Lam was not reliable. 34.Yik was not called by Sunbase to testify in court. His version as stated in the police statement was not tested under cross examination. I attach no weight to it. 35.In the circumstance, I do not accept the evidence given by Lam, Chan and Yik (by way of a statement) as to how Tsang got out from the Van. 36.Evidence of Yeung did not advance the case for Sunbase any further as she was not at the scene. According to what she said in the witness box, she admitted that she was being told 2 different versions of facts by Chan as to what had happened. She then “incorporated” the 2 versions into 1. She then reported that “incorporated” version to the Labour Department by filling in the Form 2. I find what she did was very strange and abnormal. If she was telling me the truth that she was being told 2 completely different versions of facts, all she needed to do was to state both versions in Form 2. There was simply no reason for her to “incorporate” the 2 versions into 1. She tried to explain that she thought the police and insurance company would investigate the matter and therefore decided to state the incorporated version in Form 2. I do not accept her explanation. Obviously, the more accurate information stated in Form 2, the more assistance would be rendered to the investigation by the police and the insurance company. 37.Among the defence witnesses, I find Keung more reliable. He did not appear to be a complicated person and endeavoured to give answers directly to the questions put to him. However, his evidence was neutral. He was unable to tell whether Tsang “walked down” or being “thrown out” from the Van. Probably, the most salient evidence he gave in the witness box was that he confirmed that the rear door lock of the Van had occasionally opened by itself a long time prior to the incident. 38.Lee denied that the rear door lock was malfunctioning. He was able to produce the relevant repair and maintenance records. He emphasized that after checking by the Transport Department, the rear door lock was not required to be repaired. However, it is indisputable that the Van was still transporting workers after the incident. The Van was not delivered to the Transport Department at the date of incident. So, a time gap existed. It was possible for Sunbase to check, and then fix (if needed), the rear door lock before the Van was delivered to the Transport Department. Therefore, the Transport Department’s examination might not correctly reflect the situation of the rear door lock at the time of the incident. 39.Although Lee denied that there was any repair to the door lock at that time, taking all the evidence into account, including there was history that the rear door occasionally opened by itself, I find that the door lock was malfunctioning at the time of the incident. The time gap is important because the indisputable facts were that a report to the police was made and an ambulance was called. It would be unreasonable for Sunbase (or its parent company) not to immediately send someone to check the Van. Those persons who were being sent could have sufficient time to fix the rear door lock, if needed. I find that the rear door lock was fixed before the Van was delivered to the Transport Department. Due to malfunctioning, the rear door opened by itself and caused the incident. 40.Even if (which is not my finding) the rear door lock was not malfunctioning at the critical moment, it would not affect my finding that the rear door opened in the way as testified by Tsang. Obviously, if the rear door was not closed tightly at the material time, it could open by itself. 41.There were some other trivial discrepancies as to what happened at the material time. I do not find those trivial discrepancies would in any way affect my finding. For example, among the witnesses, they had different recollection as to whether the Van had occasionally stopped on its way towards the management office. Probably, before Tsang fell, the Van did not move very smooth. However, no matter the Van occasionally stopped or not, I still accept that Tsang was thrown out from the Van when it was moving during its journey towards the management office, at a low speed at the material time. 42.On a balance of probabilities, I find that the incident happened in the way as described by Tsang. I do not accept that Tsang opened the rear door by himself and then got off the Van. With the concession made by Ms Loh, liability is proved upon my finding that the incident happened in the way as put forward by Tsang. It is therefore unnecessary for me to say anything further in respect of liability in this case. For the sake of completeness, I shall deal with it as concisely as possible. 43.An employer had a non-delegable duty to take reasonable care of the safety of its employee (see Charlesworth & Percy on Negligence, 13th ed, paragraph 11-05). 44.The incident was caused by a number of reasons, including workers (or passengers) were allowed to, and in fact did, sit inside the goods compartment without a safety belt. I have no hesitation in deciding that it was an unsafe situation. There is no evidence as what Sunbase had done in supervising Sunbase International Properties Management Limited to provide the Van for transportation. However, even the defence witnesses testified that such practice lasted for a long time prior to the incident. Nobody, either from Sunbase or Sunbase International Properties Management Limited, had done anything to ensure that such practice were to be prohibited. Sunbase should have known the practice had existed for a long time and must realize that was unsafe, if not also illegal. It is simply beyond imagination that the management of Sunbase did not bother to ensure that its workers were to be transported in a safe way. To conclude, Sunbase had failed to take reasonable care of the safety of Tsang and was in breach of its duty. 45.No contributory negligence was pleaded and Sunbase cannot now rely upon that defence (Hong Kong Civil Procedure 2015, Vol 1 paragraph 18/8/6). So, no matter it was Tsang who failed to close the rear door properly or the rear door lock failed to function, it makes no difference at all. Sunbase is still fully liable. 46.Further, I do not consider it appropriate to blame Tsang for voluntarily getting on the goods compartment of the Van. In Wong Chi Shing v Argos Engineering & Heavy Industries Co Ltd & ors, [1993] 1 HKC 598, the plaintiff was operating a shearing machine, which was unguarded, to cut iron plates in the course of employment and an accident happened. Kaplan J, in deciding that there was no contributory negligence, said at p615E:-
47.I find that despite Tsang alighted the goods compartment of the Van with knowledge that it was overloaded and was without safety belt, he should not be held contributory negligent, no matter it was pleaded or not. 48.In the circumstance, I enter judgment for the Tsang and order that Sunbase be held liable for all the damages incurred. Now, I turn to the question of quantum. Injuries and treatments 49.Tsang was first sent to A&E and then referred to the O&T for treatment. Examination revealed tenderness over left neck, left shoulder and left buttock. He had no fracture. He was hospitalized for 1 day. 50.He also attended physiotherapy and occupational therapy sessions at PYNEH since February 2013. He complained neck pain. Subsequently about 60% to 70% improvement in respect of his neck pain and range of movement were reported subjectively. He was discharged on 10 July 2013 with home exercise and advice. 51.He was granted sick leave from 11 January 2013 to 2 September 2013. Medical Assessment Board was done in December 2013 and he was granted 2% permanent disability. 52.On 2 May 2014, he was examined jointly by 2 orthopaedic experts. On that day, he complained for :-
53.Both experts agreed that his injuries were consistent with the mode of trauma described and the treatment with rehabilitation was appropriate. His impairments will persist and he will have on and off pain that requires treatment on a need-to basis in the future. Dr Fu, one of the experts, opined that the sick leave was appropriate whereas Dr Chun considered that a sick leave of about 4 months would be reasonable. 54.The experts had different views and they did not testify in court. I have to take into account all the circumstances in my assessment of their opinion. Both experts agreed that x-ray of Tsang’s cervical spine showed pre-existing degenerative changes not caused by the incident. Dr Chun therefore opined that Tsang’s complaint for nonstop pain at the left side low back is inappropriate. In the joint report, he said,
55.Dr Fu, holding a contrary view, said in the joint report as follow:-
56.Both experts agreed that there were pre-existing degenerative changes. Taking all the circumstance into account, there is no evidence to suggest that Tsang pretended to be painful during medical examination. Furthermore, prior to the incident, there is no evidence that Tsang was suffered from any pain. I prefer the opinion of Dr Fu as Tsang was able to carry out the duty of a cleaner for a long time. Even in the opinion of Dr Chun, he was unable to rule out that the incident caused Tsang to suffer from pain. At most, Dr Chun could only say that either “some other event” or “natural progression” were possible causes. Dr Chun’s opinion, in my view, was speculative. I accept Dr Fu’s opinion that the incident turned the asymptomatic degeneration into symptomatic. 57.I reminded myself that the mere issuance of sick leave certificates is not binding for my assessment. In Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd, CACV 172/2004, Rogers VP said,
58.Taking all evidence into account, I accept Dr Fu’s opinion and agree that the sick leave granted was appropriate. Quantum of damages 59.Mr Tsang was 63 years old at the time of the incident. His monthly income was $6,900. PSLA 60.For making awards for PSLA, I have taken into account the following authorities cited by Mr Lam :
61.I also take into account the authorities referred to me by Ms Loh :
62.Mr Lam submitted that $250,000 was a reasonable sum. Ms Loh submitted that $100,000 was over the top of the range and was generous because, in her view, an award of a few tens of thousand dollars up to no more than $80,000 should be sufficient for soft tissue contusion injuries not involving any structural damage. 63.Each case must be decided on its own fact. I take into account all the authorities cited. I also bear in mind the condition of Tsang. Particularly, he was still suffering from left sided lower back pain at the time of the joint examination by the experts on 2 May 2014. 64.Among all authorities referred to me, I find Tam Kwok Man the most relevant. In that case, the plaintiff, a bus station regulator, suffered from minor contusion of the back due to a fall from a wheeled chair. There was also reduced movement of the back. However, no permanent or structural damage and no operation required. The doctors considered a period of 9 to 12 months sick leave suitable. PSLA was awarded at $150,000. 65.In the present case, I find a fair and reasonable amount of PSLA should be $150,000. Pre-trial loss of earning 66.Mr Lam submitted that the loss of earnings should be calculated for the whole sick leave period. From the evidence, I find that Tsang decided not to return to work after sick leave. I therefore accept that Tsang should be entitled to pre-trial loss of earnings for the period of time when sick leave was granted, ie, 8 months minus about 10 days. I take that as 7 7 Post-trial loss of earning and Loss of earning capacity 67.Mr Lam confirmed that Tsang will not claim for any loss of future earnings and loss of earning capacity. Other special damages 68.The medical expenses and travelling expenses of $2,794 were agreed. I allow these sums. 69.In the absence of justification and receipt for the expenses of tonic food, I will not allow any award for it. Summary 70.In summary, Tsang is entitled to the following compensation :
71.Credit should be given to the sum of the employees’ compensation awarded. So, $62,280.17 should be deducted. Judgment should be entered for Tsang as follows :- $208,339 - $62,280.17 = $146,058.83 Interest 72.There will be interest at 2% per annum from date of writ to the date of this judgment and thereafter at judgment rate until satisfaction. Costs 73.Costs follows event. There will be an order nisi against the defendant to pay costs of this action (include any cost reserved) to the plaintiff to be taxed if not agreed with certificate for counsel. The plaintiff’s own costs be taxed with the Legal Aid Regulations. The order nisi for costs shall become absolute after 14 days hereof unless a party has applied to the court for varying the order.
Mr Allen Lam, instructed by Jimmie K S Wong & Partners, for the plaintiff Miss Phillis Loh, instructed by John Lam, Law & Co, for the defendant |
months. In my view, Tsang should also be entitled to 5% MPF benefits. So, he is entitled to :-Cases cited in this judgment
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