Tsang Chung Ming v. Caritas–hong Kong

HCPI 794/2016

[2019] HKCFI 1035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 794 OF 2016

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JUDGMENT

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INTRODUCTION

1.In these proceedings, the plaintiff sues the defendant for damages in respect of the personal injuries sustained by him in an accident (“the accident”) occurred on 11 May 2015 in Caritas Jockey Club Lai King Rehabilitation Centre (“the Centre”).  At that time, the plaintiff was a chef employed by the defendant working in the kitchen of the Centre (“the Kitchen”).  The plaintiff claims that he sustained “serious injury to his waist” [1]while taking out a container filled with steamed rice from a steaming machine (“the Steamer”).

2.Both liability and quantum are in dispute in these proceedings.

THE PLAINTIFF’S CASE

3.The plaintiff’s case was that at the time of the accident, he was a chef employed by the defendant and working in the Kitchen. On 11 May 2015, he and his colleague Mr Leung Man Shing (“Leung”) were on duty.  There were 6 steamers in the kitchen, each having 6 cabinets. Rice would first be placed in containers, and the containers would be placed inside the steamers for cooking.  Each steamer could hold 12 containers with rice.  The plaintiff was responsible for preparing meal for 500 persons on that date, and it would be necessary to use 15 containers to cook the rice.

4.The plaintiff claims that he sustained personal injuries in the accident in the way as pleaded in §3 of the statement of claim:

“ 3. At the material time, the Plaintiff was preparing dinner for about 500 patients at the Centre with another chef and was required to take out stainless steel rice containers measuring 2 feet in length, 1.5 feet in width, 5–6 inches in height and weighing about 20–30 pounds (‘the Containers’) from a rice steaming cabinet measuring 6 feet in height carrying 12 Containers (‘the Steamer’). Whilst the Plaintiff was taking out a Container of hot steamed rice from the uppermost part of the Steaming cabinet, he sprained his waist (‘the Accident’).”

5.The plaintiff says that the defendant is solely responsible for the accident and is liable to pay damages to him.  The particulars of the alleged wrongdoing of the defendant are pleaded in §6 of the statement of claim:

“ 6. The Accident was solely caused by:-

i. the negligence on the part of the Defendant, its servants and/or agents and/or breach of implied terms of employment contract between the Plaintiff and the Defendant; and

ii. breach of statutory duty and/or breach of common duty of care on the part of the Defendant, its servants and/or agents.

PARTICULARS OF NEGLIGENCE OF THE DEFENDANT

(1) Failing to make a suitable and sufficient assessment of all manual handling operations to be undertaken by its employees, in particular the Plaintiff;

(2) Failing to take appropriate steps to reduce the risk of injury to its employees, in particular the Plaintiff;

(3) Failing to provide its employees, in particular the Plaintiff,with a safe system of work, safe plant or equipment, adequate instruction and supervision;

(4) Failing to take any or any sufficient and/or adequate measure or precaution to ensure that the Plaintiff would be reasonably safe while he was performing the task;

(5) Failing to provide any or any adequate safety training to its employees, in particular the Plaintiff;

(6) Failing to provide enough staff to assist;

(7) Exposing the Plaintiff to a foreseeable risk of injury; and

(8)   Failing in all the circumstances to take any or any adequate care for the safety of the Plaintiff.”

6.The plaintiff himself has given evidence in support of his case at trial.

THE DEFENDANT’S CASE

7.The defendant denies that the accident was caused by the defendant’s negligence or breach of any duty on the defendant’s part. Further, the defendant claims that the plaintiff himself was contributorily negligent, particulars of which are as follows[2]:

(1)   Failure to adopt a proper and suitable posture when handling the Container;

(2)   Failure to maintain a firm footing when handling the Container;

(3)   Failure to synchronise his body movement in a safe manner when handling the Container;

(4)   Failure to utilise the standing platform provided when removing the Container from the Steamer;

(5)   Failure to pay any or any adequate attention to the working environment at the material time;

(6)   Failure to exercise any or any proper precautions for his own safety under the circumstances.

8.The defendant has filed witness statements made by the following persons:

(1)   Ms Siu Wing Sze (“Siu”), Head of Human Resources in the defendant;

(2)   Ms Lee Shuk Yi (“Lee”), Superintendent of the Centre; and

(3)   Leung.

9.Since the parties have reached some agreement on quantum, the parties agreed that it would not be necessary to call Siu to give evidence in the trial.  The defendant has called Lee and Leung to give evidence.

THE PRINCIPLES

10.In order to succeed in a civil litigation, a claimant has to set out his case on pleadings with sufficient clarity and to prove the pleaded case with satisfactory evidence.

11.Issues are defined by pleadings.  One cannot slip in an unpleaded issue by saying that there is evidence on the issue.  That has been made abundantly clear by the Court of Final Appeal in Kwok Chin Wing v 21 Holdings Ltd [3], in which Ma CJ said:

“ 21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues: Wing Hang Bank Ltd vCrystal Jet International Ltd [2005] 2 HKLRD 795, 799 [6(1)]. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Ltd v Crystal Jet International Ltd at 799 [6(2)]:

(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.

22. … one does not sift through the evidence adduced in a trialin the hope that something was said that can conceivably found a cause of action. Issues, I would reiterate, must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings.” (Emphasis added)

See also Chan Kong v Chan Li Chai Medical Factory (Hong Kong) Ltd [4], [15] and [16].

12.Apart from setting out a clear case on pleadings, the plaintiff also bears the burden to adduce satisfactory evidence to prove his pleaded case.  He who asserts must prove[5]. In Wat Kwing Lok v The Kowloon Motor Bus Company (1933) Ltd [6], Sakhrani J said at [17]:

“ The mere fact of the occurrence of the accident is not sufficient to give rise to a presumption of negligence on the part of the defendant. The burden of proof is on the plaintiff to show on a balance of probabilities that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault. If, and only if, the plaintiff proves that the unusual event is more consistent with fault on the part of the defendant than the absence of fault, the evidential burden then shifts to the defendant to show, on a balance of probabilities, that the accident happened without negligence on its part.”

13.From time to time, it has been argued in personal injuries cases that employers have failed to provide safe systems of work to their employees.  Whether a particular employer has the duty to do so depends upon the facts of that particular case, including the task required to be performed by the employee is a simple one or not.  In respect of simple tasks, it would be reasonable for the employer to expect that the employee would exercise common sense to perform the task without the need for the employer to give specific instruction or advice how the task should be performed.  This has been made clear by the Hong Kong Court of Appeal’sdecision in Fong Yuet Ha v Success Employment Services Ltd [7], in which Kwan JA (as she then was) said:

“ 17. There is no quarrel with the principle that an employer’sduty to provide a safe system of work is a personal and non- delegable duty. It was not the holding of the judge that where an employer is under an obligation to provide a safe system of work, such a duty could be shifted to the employee so that the employee could be expected to discharge this duty of providinga safe system of work for the employer. The general principle on the duty to prescribe a safe system of work may be found in this passage in Charlesworth & Percy on Negligence, 12^thed, para 11-67:

‘ It is a question of fact whether or not there is need for a system of work to be prescribed in any given circumstances. In deciding it, regard ought to be had to the nature of the work, that is whether properly it requires careful organisation and supervision, in the interests of safety of all those persons carrying it out; or it can be left by a prudent employer confidently to the care of the particular man on the spot to do it reasonably safely. There was no failure to provide a safe system where an employee was faced with a ‘one-‌off’ task requiring the exercise of common sense and it was difficult to see what relevant instruction could have been given to him. But an employer is under a duty to prescribe a system of work, even where the operation is a single one, if it is necessary in the interests of safety.’

18. I note also that the last sentence in this passage in an earlier edition of this work was quoted by the Court of Final Appeal in Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371 at para 15, a case relied on by Mr Wong to contend that a system of work should be devised by Success regarding the retrieval of items from the hanging cabinets.

19. As the passage quoted has made clear, it is a question of fact in each case whether it is necessary for the employer to devise a system of work for the task in hand. The judge decided that in the circumstances of this case, the need for a system of work to be prescribed was not made out. In paragraph 38 of the judgment quoted above, the judge referred to Winter v Cardiff Rural District Council and some of the cases in Hong Kong thatapplied this case. They were all situations where the court heldon the facts that the operation was simple and it was reasonablethat the employee could be trusted to exercise his common sense to carry out the operation without the need for the employer to prescribe a system of work or give specific instruction or advice how the task should be done.

20. The operation in Cheung Suk Wai v Attorney General was to put bags of refuse into refuse bins. It was held that it was for the cleaning worker to decide on how to carry out the operation in a way most suitable to her physical ability, including the weight of the bags she should carry at one time. In Tsang Yin Yuk v Nini Maternity Fashion Co Ltd, the shopkeeper stood on a stool to push a bag of clothing onto a shelf which was 4 feet deep. It was held that the task of putting bags containing clothing onto the shelf was not inherently dangerous, that the decision of how this should be done had to be taken frequently,and it was reasonable and natural that the decision be left to the employee on the spot, especially in light of the instruction given not to overfill the bags. In Chan Wai Ming v Tai Lee Café & Cake Shop, a chef tilted a heavy pot of boiled soup to pour the contents into a container, instead of using a ladle. The court held that this was a simple task that a chef of the plaintiff’s experience should require no guidance. Ng Kong v Golden Caterers Ltd, HCPI 206/2004, 3 February 2005, cited by the judge in the earlier parts of the judgment, was another case concerning a chef, who tried to pull a plate of fish out of a steaming oven, which he had done many times. The plaintiff complained that a stool was not provided for his use so he had to stand tiptoe. The judge found that a stool was provided but the plaintiff did not use it as it was handier to do without it and further observed that the plaintiff must know without specific instruction if he found he could not reach or comfortably reach a certain height required for his work and it was all a matter of common sense.

21.   The judge was correct in holding that in the circumstances of this case, there was no need for the employer to prescribe a safe system of work or give specific advice for such an everyday act that could reasonably be trusted to the common sense of the employee to carry out the task safely.  The retrieval of items on the upper shelf was simply not an inherently dangerous act ….”

See also Ng Kong v Golden Caterers Ltd [8]; Ng Tat Kuen v Tam Che Fu & Others [9], [39]; Liu Kin Pong v Kee Wah Food Production Ltd [10], [46]; Leung Hoi Wai v Po Leung Kuk [11], [48].

14.As to assessing evidence given by factual witnesses, useful guidelines have been given by DHCJ Eugene Fung SC in Hui Cheung Fai v Daiwa Development Ltd [12], in which the learned judge said:

“ 77. Generally speaking, contemporaneous written documentsand documents which came into existence before the problemsin question emerged are of the greatest importance in assessingcredibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). …

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood orunlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is oftentested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36 – 37 (Bokhary PJ)) …..

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

‘ Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to theobjective facts proved independently of their testimony,in particular by reference to the documents in the case,and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

82.   Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’credibility features prominently in the court’s determination. …”  

THE EVIDENCE

The plaintiff

15.The essence of the plaintiff’s evidence is as follows:

(1)   He began to work for the defendant and started to work in the Centre on 1 June 2012.  On 11 May 2015, his working hours were from 10:45 am to 7:15 pm.  He had to prepare dinner with another chef (ie Leung) for 500 residents in the Centre that night.  He was in charge of steaming the rice on that day.

(2)   Each of the containers used for steaming rice was rectangularin shape, with the dimensions of 2 feet long, 1.5 feet wide and 5 to 6 inches tall.  Each container, when filled with steamed rice, would weigh 20 – 30 lbs.  The containers were made of stainless steel, and were hot when steamed rice was inside.

(3)   At about 6 pm, he was preparing to take out two containers containing steamed rice from the top cabinet of the Steamer.  Since the top cabinet of the Steamer was about 6 feet from the ground and he was just 5 feet 7 inches tall, he had no choice but to raise his heels, stretch out his right arm and pull the rice container down with a towel in his hand.  It was only after that he could use his left hand to help to support the container.

(4)   At that moment, he was supporting the container with his left hand.  He suddenly felt an acute pain in his low back.  However, as he had not finished preparing dinner, he did not pay attention to the injury and continued to work until all jobs were finished.

(5)   After he had finished preparing the dinner, he told Leung that he had sprained his low back.  He reported the matter to his supervisor Mr Li (“Li”).  The plaintiff went to Princess Margaret Hospital at about 7 pm.

(6)   As a result of the injuries sustained in the accident, the plaintiffhad undergone treatments and had been granted sick leave for 534 days in total.

(7)   After the accident:

(a)   he could only walk normally for 20 – 30 minutes.  If he walked for a time longer than that, there would be acute pain in his left limb and low back;

(b)   there was spasm pain in his low back whenever he stood for 20 – 30 minutes;

(c)   only his right leg could be his weight-bearing foot;

(d)   his left hand could not lift heavy objects;

(e)   due to the injuries in his left limb and low back, he had to walk slowly especially when walking downstairs;

(f)   he could not go out as frequent as he did previously andhe would usually do so when he needed to see a doctor;

(g)   he could not be alone and must be accompanied by his family;

(h)   he could not squat;

(i)   he had to sit on a plastic stool whenever he took a shower as he could not squat;

(j)   he needed to use accessible toilets;

(k)   he often felt depressed.

(8)   Before the accident, he would often do housework.  After theaccident, his injuries made him incapable of doing housework. He worried that his family would be upset and his relationship with his family might be worsened.

(9)   After the accident, due to his low back pain, he could not engage in sexual activity with his wife.  He worried that their relationship would be affected.

(10)   Before the accident, he was the breadwinner of his family and his wife did not need to work.  After the accident, however,his family’s financial situation had been significantly affected. His wife had to start working since August 2015.

(11)   After the accident, he was no longer capable of lifting heavy objects, walking or even standing for a long time.  Therefore,he was not competent for manual work or other jobs of similar nature.

(12)   Although the defendant has provided a standing platform (“the Platform”) in the Kitchen, the Platform itself was unsafe as it was slippery on its surface.  It was heavy, and it was not easy to move the Platform. The plaintiff had never been told that he should use the Platform when he took rice containers out from a steamer.

(13)   Although the defendant had arranged him to watch a VCD concerning occupational safety when he first took up the job,the VCD only contained general guidelines.

(14)   Although the plaintiff had attended some safety training courses arranged by the defendant, he only signed the attendance sheets and stayed for a while in each course. Since he had to prepare afternoon tea every day, he was unable to stay until the end in these safety courses.

16.For the reasons set out below, I have difficulties in accepting the plaintiff’s evidence.  In my view, the plaintiff is not a truthful witness. His evidence is unreliable.

17.Lee has not witnessed the accident.  Her evidence is on matters relating to the training provided by the defendant to the plaintiff, and on the investigation done by the loss adjustor appointed by the defendant after the accident.  There is no serious challenge to Lee’s evidence.  I am of the view that Lee is a forthcoming witness and her evidence is supported by documents.  I accept her evidence.

18.Leung is the other chef working together with the plaintiff in the Kitchen on 11 May 2015.  In his evidence, he confirmed the correctnessof a statement given by him to the loss adjustor on 8 June 2015 and adopted the contents of that statement as part of his evidence.  In that statement, Leung said:

(1)   On 11 May 2015, after preparing the dishes and placing them on the trolleys, he went to help the plaintiff.  The plaintiff was taking the rice containers out from the steamers.  Leung helped to place the rice containers on the trolleys and to place covers on the rice containers.

(2)   Leung saw what happened when the plaintiff was removing the Container from the top cabinet of the Steamer.  According to Leung, the plaintiff pulled out the Container with his two hands. When the Container was still on the rack, he heard the plaintiff uttering “Aiya”, and he saw the Container almost fell on the cabinet door.  The cabinet door, when opened, could be used as a countertop.  When things were being moved out from the cabinet, they could be temporarily placed on it for a rest.

(3)   The plaintiff stopped work for a few seconds and then put the Container on the trolley.  Leung asked the plaintiff whether the plaintiff would need any help, and the plaintiff said “No” and continued to work. 

19.Leung’s evidence is not challenged save and except one point.  Mr Yip put to Leung that when the plaintiff was removing the Container from the top cabinet of the Steamer, the plaintiff used his right hand to pull the Container out first, and then used his left hand to touch the bottom of the Container to support the same.  The plaintiff did not use his both hands to pull out the Container.  Leung disagreed and maintained his evidence.

20.Mr Yip submits that Leung’s evidence on this point should not be accepted.  Mr Yip argues that since Leung has agreed under cross-examination that he was not paying attention to the plaintiff at all times forLeung had his own work to do, it would not be probable for Leung to haveclearly seen what happened when the plaintiff was taking the Container out from the top cabinet of the Steamer.

21.Having considered Leung’s evidence and Mr Yip’s submissions, I am of the view that Leung’s evidence is reliable:

(1)   Although Leung was not paying attention to the plaintiff at all times, since Leung was helping the plaintiff to place the rice containers on the trolleys, naturally Leung would look at the plaintiff from time to time. Particularly, when the plaintiff was moving a rice container out from a steamer, Leung would look at the plaintiff at this time, for Leung would need to get the rice container from the plaintiff immediately after the plaintiff taking it out from the steamer, and then place the container on a trolley.  Leung’s evidence is inherently probable.

(2)   Leung’s evidence is recorded in his statement given to the lossadjustor on 8 June 2015.  At that time, it was only shortly after the occurrence of the accident, and Leung would still have a fresh memory of the same.

22.In my view, Leung is a simple and straightforward witness.  I accept his evidence.

23.I now explain why I am unable to accept the plaintiff’s evidence.  I would first set out some agreed or indisputable facts:

(1)   The plaintiff’s height (without wearing shoes) is 174 cm.  The height of the kitchen shoes provided by the defendant and wore by the plaintiff at the time of the accident is 2.5 – 3 cm.  The full-lengths of the plaintiff’s right and left arms are 70 cm and 69 cm respectively[13].

(2)   The dimensions of the Container are 53 cm × 32 cm × 8.5 cm.  The weight of the Container (filled with steamed rice) is 5.4 kg (approximately 12 lbs) [14].

(3)   From the ground to the bottom of the top cabinet of the Container, the height is about 167 cm[15].

(4)   On 11 May 2015, the Platform was in the Kitchen.  That was a hollow platform with four sides, and the dimensions of which were 51 cm (length) × 45.5 cm (width) × 25 cm (height).  There were textured studs on the surface of the Platform to enhance friction and minimize slippage[16].

24.In my judgment, the plaintiff’s evidence is contradicted by the agreed or indisputable facts and by documents on many material aspects.  His case is untruthful by exaggerations.

25.The plaintiff has tried to paint a picture that this is a case concerning an accident about the lifting of a heavy object.  This is untrue. In the plaintiff’s evidence, he said that he first pulled out the Container from the top cabinet by using his right hand, and when the Container was ⅔ out of the top cabinet, he started to use his left hand to support the container.  At this point of time, he felt pain in the lumbar region of his waist.  According to Leung, the plaintiff used his both hands to pull out theContainer at that time.  When the Container was still not completely off therack, Leung heard the plaintiff said “Aiya”.  So according to either version, the attack of pain came at a point in time when the Container was still partially on the rack, with two points of support at which the weight was distributed.  The support provided by the rack would substantially reduce the weight of the Container. Since the full weight of Container (filled with steamed rice) is 5.4 kg, the weight borne by the plaintiff would be significantly less than 5.4 kg. 

26.The plaintiff has clearly made exaggerations in respect of heights, weights and dimensions to try to make out a better case for himself. He claimed that the weight of the Container (with steamed rice inside) was about 20 to 30 lbs.  However, the actual measurement shows that the weight of the Container (with steamed rice inside) is only about 5.4 kg (approximately 12 lbs).  The plaintiff claimed that he was “barely” 5 feet 7 inches tall.  However, in fact the plaintiff’s real height is 174 cm or 5 feet 8.5 inches.  The plaintiff claimed that the height of the top cabinet was 6 feet and he was only 5 feet and 7 inches tall, and could only tip toe to reach the Container.  However, the height of the top cabinet in fact is approximately 167 cm, while the plaintiff’s real height is 174 cm, and thickness of the kitchen shoes worn by the plaintiff at that time was 2.5 – 3 cm.  In other words, at the material time, the full height of the plaintiff in fact was 10 cm above the top cabinet of the Container.

27.On the question of how the Container was pulled out, under cross-examination, the plaintiff initially said that Leung was not around him when the accident occurred.  Later, the plaintiff shifted his case saying that Leung was merely passed by somewhere near the passageway of the steamers and only saw the plaintiff at a distance.  However, later it was pointed out to the plaintiff that in fact Leung was working together with him to move the rice containers from the steamers to the trolleys at that time.  The plaintiff was unable to give any satisfactory response to this.  I note that when Leung was cross-examined, it has not been suggested to Leung that Leung was not beside the plaintiff at the time of the accident.  Accordingly, the truth is that Leung was working next to the plaintiff at the time of the accident, and the plaintiff has tried to cover up the truth in his evidence.

28.Further, there is ample evidence showing that the plaintiff hasgrossly exaggerated his injuries to his treating doctors and physiotherapists:

(1)   When the plaintiff was asked to fill in a questionnaire on 20 May 2015 by the Department of Physiotherapy of Tuen Mun Hospital (“TMH”), he claimed that as a result of his low back pain, he had to stay at home most of the time.  He also claimed he had to walk slower than usual, that his low back wasalmost painful all the time, and could only walk a short distance.  On 3 June 2015, the plaintiff informed the physiotherapist of TMH that his pain level was 7/10, his standing tolerance was 5 minutes, and his walking tolerance was 25 to 30 minutes.  If these complaints were true, the plaintiff should have stayed at home to recuperate.

(2)   However, on 29 May 2015, the plaintiff was found in Mong Kok at around 11:50 am to consult Dr Tio.  After he attended the appointment with Dr Tio, both orthopaedic experts, the plaintiff’s expert Dr Kong and the defendant’s expert, on viewing the surveillance video, agreed that the plaintiff had demonstrated the following movements:

“ On 29/5/2015 from 12:56 hr to 13:31 hr, he was on his feet all the time, walking, strolling, window shopping. His gait was normal, no limp. His trunk movement natural, walking frequently his left hand in hand with a woman, showing no signof continuous pain or aggravation of pain to grade 8–9/10, in fact no sign of any pain. He was on his feet again from 13:45 hr. He went down stairs appeared to be normal at least for the initialfew steps at 13:56 hr. At 14:55 hr he stooped gently to the left to look. He went upstairs normally at 15:11 hr. Thus he was on his feet again for about 25 minutes without showing any sign of pain or left lower limb problem. He smoked at 15:31 hr while walking. They continued to shop and walk in market. At 15:42 hr, his left hand was carrying transparent shopping bags walking normally then transferred to right hand was back to left hand carrying, reached home by 15:43 hr thus on his feet from 15:05 hr for about 40 minutes without showing any sign of back pain.” (Emphasis added)

(3)   As shown in the surveillance video, the plaintiff had spent hours outdoors walking, strolling, and shopping on 29 May 2015.  Though he asserted that the surveillance video omittedmoments which he was resting, the more pertinent point is that if there is any truth in his version of the injuries suffered by him, he should have gone home immediately after Dr Tio’s appointment to recuperate, instead of spending hours walking,strolling, loitering, and shopping.

(4)   On 3 November 2015, the plaintiff was examined by Dr Chun and the plaintiff raised the following complaints:

“ Back pain on the left side …, same extent/region as at the beginning, stretching pin-pricking pain, burning pain, continuousand nonstop pain, from grade 4–5 to grade 8 …, after medication to grade 4–5, he takes regular medicine like analgesic 4 times per day. Pain increases to grade 8 in change of weather, or when waking up from sleep every night 2–3 times per night, or when sitting for long for 15–20 minutes (at this point the time was 10:52 hour), or when standing for long for 15–20 minutes or when walking for long for 20–25 minutes.”

(5)   However, after the plaintiff had attended Dr Chun’s appointment, both orthopaedic experts agreed that the surveillance video demonstrated the following:

“ (ii) On 3/11/2015 at 11:19 hr he was standing and chatting. 11:23 hr was walking with the woman left hand in hand. 12:05 hr was standing & smoking. 12:07 hr walking left hand in hand normal gait & pace. 12:07 hr walked down steps normally. Reappeared [walking] again at 12:43 hr walking up moving escalator normally. At 12:44 hr, stooped down gentle to left and bent further down to inspect items inside the glass compartment. At 13:01 hr seen walking again normally. At 13:11 hr both sat down on the bench and both smoking. Re-appeared walking normally at 14:51 hr. On his feet from 14:51 hr to 15:17 hr before sat down on a stool at a hand phone store. At 15:05 hr, left leg standing while right foot one step above the left, effectively weight bearing on the left foot showing no abnormality. Got into a narrowed and crowded market, negotiating the crowded place normally. Shopping at various stalls. 15:12 hr, right hand carrying a small plastic bag. At a market again at 15:49 hr; later left hand carrying a pink plastic shopping bag negotiating crowded street normally. Was walking up slope of the LTR at 15:55 hr normally. Seen walking again at 16:19 hr till 16:40 hr. Was at another market from 16:29 hr, left hand carrying the pink plastic bag.

(iii) At all time there was no sign of left back pain or left lower limb problem. He should have well recovered by this stage of the DVD surveillance. There was no abnormality noted.” (Emphasis added)

29.In cross examination, the plaintiff was shown various medical records to the effect that his conditions inexplicably deteriorated or fluctuated over time.  Mr Chan and Mr Ho have helpfully summarized these records in their written final submissions, which are as follows:

Issue	Before	After
Improvement	30% improvement at 26 June 2015; 40% improvement on 10 July 2015 (TMH)	20% overall improvement on 26 November 2015 (TMH)
Pain and Endurance	Pain level 7/10, walking tolerance 25 – 30 minutes on 3 June 2015 (TMH)	Pain level 8/10, walking tolerance 20 minutes on 26 November 2015 (TMH)
Frequency of pain and numbness	Intermittent left thoracic and lumbar pain, no longer left lower limb numbness on 10 July 2015 (Hong’s Physiotherapy Centre)	Continuous and nonstop pain, left foot dorsum “numb” on 11 August 2016 (joint examination)
Ability to squat	Able to squat fully on 3 November 2015 (Dr Chun’s examination)	Able to squat half way down on 11 August 2016 (joint examination); could not squat on 20 April 2017 (witness statement)
Disabilities in daily living	No such complaint	Need to shower on a plastic chair, need to go to handicapped bathrooms on 20 April 2017 (witness statement)

30.After seeing the aforesaid reports, the plaintiff said that he was told by his treating doctors or physiotherapists that his physical condition fluctuated.  I do not accept this answer.  There is nothing in the medical records showing that the doctors and physiotherapists have ever gave suchadvice.  Further, the above medical records show that the plaintiff’s allegedphysical conditions deteriorated in all material aspects, not just fluctuation. There is no medical explanation for these deteriorations.  Both orthopaedic experts agreed that the prognosis was good.  As submitted by Mr Chan, I agree that the only sensible explanation of the alleged deterioration of symptoms is that the plaintiff had lied to his treating doctors, physiotherapists,and the orthopaedic experts.

31.After having 22 physiotherapy sessions in TMH and 20 sessions in a physiotherapy centre, as at 26 November 2015, the plaintiff claimed that he still had pain at 8/10 level, with low tolerance for walking, standing and sitting.  However, when the plaintiff was told that he would be discharged physiotherapy, he agreed to this.  Afterwards, there was no active treatment plan other than the plaintiff’s own consumption of analgesic and extension of sick leave.  If the plaintiff’s situation was so unsatisfactory in late November 2015 as claimed by him, obviously he would not have agreed to being discharged from physiotherapy.  He would be expected to seek other forms of active treatment, or perhaps a second opinion, instead of adopting remedies that were (on his own case) proven to be ineffective ie analgesic and sick leave.  The plaintiff’s agreement to end his physiotherapy in late November 2015 can only mean that he hadfully recovered by that time.  This is supported by the orthopaedic experts’ agreed opinion that the plaintiff “should have well recovered” when he was under surveillance on 3 November 2015.

32.In his revised statement of damages filed on 18 May 2017, the plaintiff sought, inter alia, future loss of earnings on the basis that the plaintiff “could not resume his pre-accident employment”.  In his supplemental witness statement dated 17 November 2017, the plaintiff claimed that he could not resume full time work as a chef because of his alleged disability.  However, in his 3^rd supplemental list of documents filedon 13 March 2019, the plaintiff first disclosed for the first time that he hadfound a part-time job since late 2016, ie working in the Hong Kong Societyfor the Blind as a part-time chef.  This contradicts the allegations made by him in the revised statement of damages and in his supplemental witness statement, ie he could not resume his pre-accident employment, namely working as a chef.

33.Importantly, under cross-examination, when the plaintiff was asked about his job in the Hong Kong Society for the Blind, the plaintiff revealed that he worked on average 10 days a month, because his work schedule was arranged by the employer.  In other words, he worked as a part-time chef there was not due to his alleged disabilities but due to the arrangement made by the employer.

34.All in all, the plaintiff’s evidence is untruthful and unreliable. I refuse to accept his evidence.

LIABILITY

35.It is not in dispute that when taking the Container out from thetop cabinet of the Steamer, the safe and suitable method is the one describedby the plaintiff in his evidence, ie using one hand to pull the Container out first, and then using another hand to support the bottom of the Container.  Obviously, the plaintiff himself knows that this is the safe and suitable method: 

(1)   In his own evidence, the plaintiff admitted that every colleaguewould use the same method, and there was not a single similar accident in the three years during which he was employed.

(2)   Further, on 23 June 2014, the defendant’s own occupational therapist, Mr Mike Chan, had assessed the plaintiff’s work duties and performances.  The assessment was conducted in the Kitchen, with questions and answers and a demonstration of the plaintiff’s manual operations.  The assessment was a live demonstration in situ.  After Mr Mike Chan completed theassessment, he filled in the assessment form (“the Assessment Form”) and presented the plaintiff with all three pages of the assessment form to check and sign.  The plaintiff signed the Assessment Form to indicate that he agreed with the contentstherein.  Thus, the method of taking rice container out from thesteaming cabinet was considered by a professional occupational therapist, who could not identify any potential problem, and the plaintiff agreed with this conclusion.

36.However, based upon the evidence accepted by this court, the plaintiff has failed to adopt this safe and suitable method in taking the Container out from the top cabinet of the Steamer but did the job in the wrong way, ie pulling out the Container by both hands at the same time.  This is the negligence on the plaintiff’s part. I find that the accident was caused solely by the plaintiff’s negligence.  On this point alone, the plaintiff’s case must fail.

37.Even if the plaintiff’s evidence is accepted, I am of the view that the plaintiff still has no case against the defendant.  In the final submissions stage, I have asked Mr Yip what the defendant has done or hasnot done causing the accident.  In response, Mr Yip submits that the plaintiff is relying upon two points, which are as follows:

(1)   the defendant has failed to give correct answers under Question 1 on the Assessment Form; and

(2)   the defendant has failed to require all employees to use the platform when they are moving or removing objects at a high level.

38.With respect to Mr Yip, I am of the view that there is no merit in the 1^stpoint: 

(1)   Question 1 on the Assessment Form concerns whether the plaintiff was required to hold or to control heavy objects at a point far away from the trunk of the body, and the answers under this question are “No”.  As said in the above, the assessment was done by Mr Mike Chan in the Kitchen, with questions and answers and a demonstration of the plaintiff’s manual operations by the plaintiff himself.  The assessment was a live demonstration in situ.

(2)   The 1^st point now taken by the plaintiff has never been raised on his own pleadings.  In answering the question from the court, Mr Yip can only refer me to §6(1) of the statement of claim, in which the plaintiff alleged that the defendant had failed to make a suitable and sufficient assessment of all manual handling operations to be undertaking by its employees, in particular the plaintiff.  In my view, saying that the defendant has failed to make a suitable and sufficient assessment is one thing, saying that the defendant has made mistakes in a particular assessment is another thing.  The plaintiff nowis not saying that the assessment conducted by Mr Mike Chan is not suitable or not sufficient, but is saying that the answers given by Mr Mike Chan under Question 1 (albeit confirmed by the plaintiff himself) are wrong.  As a matter of fairness, if the plaintiff intends to rely upon this point, he has to give advance notice to the defendant by raising the point on pleadings, so that the defendant would have an opportunity to prepare evidence to meet this point, for example, adducing evidence from Mr Mike Chan to refute the point.  In my judgment, this point is an unpleaded point and the plaintiff is not entitled to raise the same in the final submissions stage.

(3)   Further, given the height of the plaintiff, the weight of the Container, the length of the plaintiff’s arms, and the height ofthe top cabinet of the Steamer, I do not think that the answers under Question 1 are incorrect.

(4)   In any event, at the end of the Assessment Form, Mr Mike Chan has written down some notes in Chinese, in which Mr Mike Chan reminded the plaintiff, inter alia, that the plaintiff should assess whether he was capable to do so in moving heavy objects, and if necessary, the plaintiff should seek help from colleagues or use equipment.  With this reminder in the Assessment Form, plainly the plaintiff cannot say that the defendant has failed to carry out a suitable and sufficient assessment.

(5)   Apart from the assessment conducted by Mr Mike Chan, the plaintiff admitted that he was present throughout a number of the training sessions.  He has also attended seven interviews with Mr Li, his superior, on how the plaintiff could improve his performances.  It is worth to note that in cross-‌examining the defendant’s witnesses, Mr Yip has made no attempt to suggest that the plaintiff’s training and assessments were, as the plaintiff had put it in his evidence, all for show only because he was under pressure to prepare afternoon tea.

(6)   For the reasons above, there is no merit in the 1^st point at all.

39.I am also of the view that there is no merit in the 2^nd point.  It is undeniable that before the occurrence of the accident, the defendant has given written instruction to its employees that the Platform should be used if they were not tall enough to safely perform the task of taking food out from the steamers. Mr Yip submits that this written instruction is inadequate.  Mr Yip argues that the defendant should issue a mandatory instruction to all its employees, requiring each and every employee to use the Platform at all times when they are taking food out from the steamers.  With respect to Mr Yip, this submission cannot be right. Different employees have different heights.  If an employee who is tall enough, he would be able to take food out from the steamers safely without using the Platform. There is no reason to require him to use the Platform to do the job.

40.In my view, the instruction issued by the defendant is adequate and appropriate.  After all, taking food out from the steamers is a simple task.  In performing the task, depending upon the height of the employee,he or she may or may not need to use the Platform provided by the defendant. Whether it is necessary to use the Platform is a matter which can be easily determined by the employee by exercising common sense.

41.In my judgment, on any view, the plaintiff must fail on liability.

QUANTUM

42.For the sake of completeness, I would set out my opinion on quantum in the paragraphs below.

43.The plaintiff was born in 1960 and was at the age of 55 at the time of the accident.  The parties’ respective positions on quantum are summarized in the table below:

Head of damages	Plaintiff (HK$)	Defendant (HK$)
PSLA	200,000	100,000
Pre-trial loss of earnings	473,878	53,203.50
Loss of earning capacity	126,984	0
Loss of future earnings	0
Travelling expenses	2,000
Medical expenses	18,590	0
Less  Employees’ compensation	(230,000)
Less  50% contributory negligence	Denied	0
Total before interest	591,452	0

44.The joint orthopaedic experts are in agreement on most items: 

(1)   It is agreed that the plaintiff had a low back sprain, which did not affect his lumbar spine.

(2)   It is agreed that the plaintiff has exaggerated his symptoms.  In the joint report, the plaintiff’s own expert opined that:

“ 79. Dr. Kong: His underperformance at the joint examination, as different from the DVD surveillance, suggests symptoms magnification. In short, he has only mild soft tissue residue back pain and stiffness from the sprain injury, which has likely aggravated his pre-existing lumbar spondylosis.”

(Emphasis added)

(3)   It is agreed that the prognosis is good.

(4)   It is agreed that the plaintiff could return to his pre-accident job, except that Dr Kong opined that the plaintiff might have mild reduced work efficiency and endurance.

45.The only material difference between the experts is on sick leave — The defendant’s expert Dr Chun opined that reasonable sick leaveshould be two weeks; Dr Kong followed the judgment of the treating doctors, and opined that sick leaves granted to the plaintiff by his treating doctors up to 23 July 2016 are within reasonable limits.

46.As to the reasonable period of sick leave, I am not bound by the sick leave certificates as they were issued primarily because of subjective symptoms reported to the doctors by the plaintiff [17].  I note thatDr Tio, an orthopaedic specialist who treated the plaintiff from 29 May 2015 to 24 July 2015, decided that the plaintiff did not require further treatment and only issued sick leave up to 9 August 2015.  The other doctors who issued sick leave certificates to the plaintiff were general practitioners.  In my view, there is no reason to depart from Dr Tio’s professional judgmentthat the plaintiff should not require any further sick leave after 9 August 2015.  This is supported by the fact that the plaintiff’s physiotherapy treatment in the physiotherapy centre ended on 24 August 2015 because his condition has plateaued.  This is also consistent with the surveillance video taken on29 May 2015.  In my judgment, the reasonable period of sick leave should be three months.

47.In assessing the quantum of damages, I bear in mind that:

(1)   The burden of proving the sum claimed under every head is on the plaintiff.

(2)   The plaintiff has been held by this court as an untruthful and unreliable witness.

(3)   Even according to the plaintiff’s evidence, at the time of the accident, the Container was still partially on the rack.  The full weight of the Container at that time was 5.4 kg.  That being the case, the weight supported by the plaintiff at the time of the accident could not be a heavy weight.

(4)   The surveillance video taken on the plaintiff on 29 May 2015shows that the plaintiff was not suffering from serious injuries at that time.

(5)   The agreed opinion of the two orthopaedic experts.

(6)   The reasonable period of sick leave as found by me in the above. 

PSLA

48.Mr Yip refers me to some authorities[18] and submits that the award under this head should be HK$200,000.  In my view, the injuries involved in these authorities are far more serious than that of the plaintiff.  These cases cannot shed light on the appropriate amount for PSLA in this case.

49.Mr Chan draws my attention to certain authorities [19] and submits that an award for PSLA involving soft tissue injury at low back with short period of sick leave should be a sum not exceeding HK$100,000.  Mr Chan submits that the appropriate award under this head should be HK$100,000.

50.Based upon the evidence accepted by this court, I agree with Mr Chan.  The award under this head should be HK$100,000.

Pre-trial loss of earnings

51.At the time of the accident, the plaintiff’s monthly’s salary wasHK$16,890.  I have found that the reasonable period of sick leave is three months.  Both experts are in agreement that the plaintiff should be able to resume his pre-accident job.  Accordingly, there should be no further pre-trial loss of earnings after the three-month period.

52.In my view, the pre-trial loss of earnings should be HK$16,890 × 3 × 1.05 = HK$53,203.50.

Loss of earning capacity

53.An award under this head would only be made if there is evidence showing that the claimant would have a risk that as a result of the injuries, there is a real or substantial risk he may lose his job before the estimated end of his working life [20].

54.The plaintiff’s job as a chef does not require heavy manual work at all times.  He only suffered a minor soft tissue injury at low back as a result of the accident.  In my view, there cannot be any real or substantial risk that he would lose his job as a chef before the estimated end of his working life. There should be no award under this head. 

Medical expenses

55.In respect of the medical expenses of HK$18,590 claimed by the plaintiff, all of these expenses were incurred in 2016. Based upon the findings set out above, including the finding on the reasonable period of the sick leave, there is no reason to justify these medical expenses spent in 2016.  I refuse to make any award under this head.

Summary on quantum

56.For the reasons above, on the question of quantum, I agree with the defendant.  In other words, even if the liability is established (including the assumption that there is no contributory negligence on the plaintiff’s part), I would still refuse to award any sum to the plaintiff.

COSTS

57.Both Mr Yip and Mr Chan have agreed that if I rule against the plaintiff on liability, costs should follow the event and be to the defendant.  Mr Chan does not seek a certificate for two counsel but asks for (a) costs beawarded on an indemnity basis; or (b) insofar as counsel’s fees are concerned, for the purpose of taxation, the three-day trial be deemed to last for four days.  Understandably, Mr Yip is unable to agree to either (a) or (b).

58.Mr Chan submits that the plaintiff’s case is frivolous, and his injuries were so exaggerated or feigned.  In these circumstances, indemnity costs are justified.  The fact that the plaintiff is legally aided should not be a mitigating factor by virtue of the sentiment that if indemnity costs are ordered in legal aid cases, the costs would have to be met by the public purse rather than by private funds.  Mr Chan submits that often whenparties are legally aided, they have no qualms about being spendthrift withpublic resources.  Legal aid cases should not enjoy special favours against indemnity costs.

59.Mr Yip submits that the failure of a party in an action does not justify indemnity costs against that party.  There is no reason in this case to depart from the normal rule of awarding costs on a party and party basis.

60.The rules concerning indemnity costs have recently been summarized by HH Judge Winnie Tsui in Wong Yung Tai v Top Eagle Security Management Ltd & Another [21].  In a nutshell, those principles are as follows:

(1)   The court has a broad discretion to determine the taxation basis. In order to obtain an order for costs on an indemnity basis, it is necessary to have some “special or unusual feature” in the case[22].

(2)   Indemnity costs are not confined to cases where the paying party’s conduct lacks moral probity or deserves moral condemnation for which the court wishes to express disapproval.  Conduct which falls short of that can be so unreasonable as to justify an order for indemnity costs.  But such conduct would need to be unreasonable to a high degree.  Unreasonable in this context does not mean merely wrong or misguided in hindsight [23].

(3)   Usually, merely pursuing a weak claim would not justify indemnity costs.  On the other hand, to maintain a claim that one knows, or ought to know, is doomed to fail on the facts and on the law, is conduct that is so unreasonable as to justify indemnity costs [24].

(4)   Ultimately what the receiving party must demonstrate is something in the conduct of the action or other circumstances of the case that “takes it out of the norm” which warrants an order for indemnity costs [25].

61.In addition to the above, I would add this.  As everyone is equal before the law, in considering whether a paying party should be ordered to pay costs on an indemnity basis, the court would and should applythe same principles, no matter the paying party is a legally-aided person or not.  A legally aided person would not have any privilege nor suffer any prejudice on the question of whether indemnity costs should be ordered against him or her.

62.With the aforesaid principles in mind, I turn to consider whether indemnity costs should be ordered against the plaintiff.  In my view, indemnity costs are justified in this case.  The plaintiff’s case, both on liability and on quantum, is contradicted by indisputable evidence and documents on various material aspects.  The plaintiff’s case is bound to fail, both on liability and on quantum.  This should be plain and obvious to everyone knowing the pleadings and the evidence in this case, including the plaintiff himself.  Yet the plaintiff has determined to fight this case to the very end.  In these circumstances, indemnity costs should be ordered against the plaintiff.

63.Since I have decided to award indemnity costs to the defendant,there would be no need to consider the second proposal put forward by Mr Chan.

CROSS-EXAMINING BY MULTIPLE COUNSEL

64.Before leaving this judgment, I take this opportunity to record an episode in the trial and to discuss a topic, ie whether cross-examining a witness by more than one counsel representing the same party is permissible.

65.At the end of the first day of the trial, Mr Chan told me that hehad finished his part of the cross-examination, and would let his co-counselMr Ho to cross-examine the plaintiff on quantum.  Mr Chan told the court that Mr Ho would only focus on quantum and there would be no overlap between the questions already asked by Mr Chan and the questions to be asked by Mr Ho.  This was the first time that this court and Mr Yip were being told that there was such an intended division of labour between Mr Chan and Mr Ho.  I invited counsel to do some research and report to the court whether cross-examining a witness by more than one counsel representing the same party was permissible.

66.At the beginning of second day of the trial, counsel helpfully provided relevant authorities to me.  As shown in the authorities, ordinarily one party can only cross-examine a witness by one counsel.  If a party intends to cross-examine a witness by more than one counsel, the party cannot do it as of right but has to seek leave from the court.  Leave shouldbe sought before the beginning of the cross-examination, and the areas to be covered by each counsel should be identified.  The court may grant leave if the issues are complex and there is no overlapping of the questions to be asked by different counsel.

67.In Omnia Pelts Inc v Canadian Pacific Airlines Ltd & ors [26], a decision made by Rosenberg J in the High Court of Ontario, it was held:

“ A trial judge has a discretion to permit more than one counsel on behalf of a party to cross-examine a witness provided that there is no overlap and that the court is advised of the intention to divide the cross-examination at the outset. The areas to be covered by each counsel should be identified before the commencement of the cross-examination and the case should be one of complexity so that a division between counsel is appropriate.”

68.In GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) [27], Young J said:

“ Drawing all these threads together, the following appears to me to be the situation.

(1) The only actual ‘right’ is the right to have a fair trial.

(2) It is the duty of the trial judge to ensure that all parties have a fair trial.

(3) In carrying out his duties the trial judge must so exercise his discretion in and about the examination and cross- examination of witnesses that a fair trial is assured.

(4) Ordinarily, a judge in carrying out his duty will see that the trial is conducted in the manner that is commonly usedthroughout the State, namely that witnesses are examined, cross- examined and re-examined.

(5) Where there is more than one counsel for the same party, then ordinarily the judge will not permit any more than one counsel to cross-examine the same witness.

(6) Where there are parties in the same interest, the judge will apply the same rule as stated in (5).

(7) Where the issues are complex and there is no overlapping of cross-examination and the proposal is outlined before cross-examination begins, it may be proper for the judge to permit cross-examination of one or more witnesses by more than one counsel in the same interest notwithstanding prima facie rules (5) and (6).

(8) It may be that in the interests of time or to prevent ‘torture’ of the witness or for other good reasons, a judge may in special circumstances limit cross-examination. Such a situation would occur where, for instance, there was only a fixed amount of time before an event occurred and a decision was essential before that event occurred.

(9) It is usually not proper to indicate at the commencementof the hearing that cross-examination will be limited to X minutes subject to the right to make an application for an extension, although such a ruling might be justified if time was limited. It would, however, appear to be proper for the judge to say, at any stage during the cross-examination, that he would, unless convinced that the cross-examiner was being of more assistanceto the court, curtail cross-examination in Y minutes time. This power would of necessity be used sparingly.

(10) Group cross-examination either by all counsel cross-examining the witness at one time or a group of witnesses being cross-examined by one counsel at the same time is not a procedure that should be permitted.

(11) In all proceedings, the court has a duty to prevent cross- examination purely for a collateral purpose or to ‘torture’ the witness.

(12) In interlocutory proceedings, especially proceedings for an interlocutory injunction, the collateral purpose rules must be looked at very closely because ordinarily it is not proper to permit counsel to go on a fishing expedition and all that the plaintiff need show is a prima facie or strongly arguable case on the merits. Cross-examination on laches, balance of convenience etc is, of course, in a different plight.

(13) Ordinarily a judge should permit cross-examination of all witnesses by all counsel unless one or more of the above rules apply.

I should add that when I speak of ‘rules’ I am merely noting guidelines as to how ordinarily a trial will be conducted under the superintendence of the trial judge. …”

69.Subject to what has been set out in the paragraph below, I am of the view that the rules set out by Young J has provided a useful guidance on how the court should exercise its case management power in managing cross-examination of witnesses.  Speaking for myself, subject tothe exception set out below, I would adopt these rules in considering whether cross-examining the plaintiff by more than one counsel representing the defendant in this case is permissible if I have to make a ruling on the issue.

70.The only exception is, in my view, rule (9) in GPI must be subject to our Rules of the High Court (“RHC”), Order 35, rule 3A(1) [28].  InHong Kong, the court may exercise the case management power conferredby this rule if and when necessary to give effect to the underlying objectives of the RHC for the purpose of securing the just resolution of disputes in accordance with the substantive rights of the parties.  In applying the rulesin GPI, rule (9) must be modified by this statutory provision in Hong Kong.

71.The most recent authority on this topic is the decision of the Federal Court of Australia in Canberra Residential Developments Pty Ltd v Brendas [29], in which the court said:

“ 44. … it is necessary to examine the rationale for the rule of practice preventing two counsel from cross-examining one witness. It can be traced back to the decision of Doe v Roe (1809) 2 Camp 280; 170 ER 1155. As Lord Ellenborough made clear, the rule is for the protection of the witness. He said (at 1156): ‘If this rule were not adhered to, a witness might be subject to the examination or cross-examination of as many barristers as were retained for the plaintiff or defendant, much time would be wasted, and great confusion would be introduced into proceedings at Nisi Prius.’ Put another way, the common law frowns upon cross-examination by multiple counsel becauseof the possibility of oppression: JD Heydon, Cross on Evidence (8th ed, Butterworths, 2010) p 627.

45.   Naturally the common law rule is subject to reasonable exceptions.  One exception arises from the changing nature of litigation.  A common feature of modern commercial litigation isfor counsel on one side of the record to split their trial preparationon a topic by topic basis.  The conduct of the trial often followsthis split with the judge permitting both cross-examination andsubmissions to be divided so that counsel can deal with his/her assigned topic: see eg Eva Pty Ltd v Charles Davis Ltd [1982] VR 515.  This can be an extremely efficient way in which to conduct complex litigation.  All the judge need do in such circumstances is ensure there is no unfairness to the witness: GPI Leisure Corporation Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 22–23.”

72.Having reported these authorities to the court, Mr Chan told me that he was not going to seek leave to allow cross-examining the plaintiff by more than one counsel, and he would continue the cross-examination.  In these circumstances, eventually I have no need to make a ruling on whether leave should be given allowing the defendant to cross-examine the plaintiff by more than one counsel.

DISPOSITION

73.I dismiss the plaintiff’s claim.

74.There be a costs order that costs of these proceedings (including all costs reserved) be to the defendant, to be taxed on an indemnity basis if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

75.I thank counsel for the assistance rendered to the court.

Mr Richard Yip, instructed by Kenneth Lam, Solicitors, assigned by Director of Legal Aid, for the plaintiff

Mr Maurice Chan and Mr Leon Ho, instructed by Au & Associates, for the defendant