Tsui Kin Keung v. A.S. Watson & Co Ltd and Another

HCPI 508/2015

[2020] HKCFI 915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 508 OF 2015

______________

Before:  Hon K Yeung J in Court

Dates of Hearing:  6‑10 May and 9 July 2019

Date of Judgment:  28 May 2020

________________________

JUDGMENT

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The trial

1.According to the plaintiff (“P”), he slipped and fell (the “Alleged Accident”) on 11 June 2013 when he was pulling a hand trolley (the “Hand Trolley”) loaded with goods up a pavement kerb.  The Alleged Accident was said to have occurred inside Yung Shing Court (“Yung Shing Court”), at a spot where the loading area of the carpark (“Loading Area” and “Carpark” respectively) or the Covered Passageway (the “Covered Passageway”) was. P says that he was at that time in the course of his employment with the 1^st defendant (“D1”), and that the Carpark was under the care and control of the 2^nd defendant (“D2”).  He claims damages for the injuries he says he has suffered.  This is the trial of (i) P’s personal injuries claim against D1 as his employer and D2 as the occupier, and (ii) the related contribution proceedings between D1 and D2. 

2.Both liability and quantum, and even the occurrence of the Alleged Accident, are in dispute.  The main issues are whether the Alleged Accident has occurred, if so its cause, and in that light, whether D1 and/or D2 has been in breach of any duties they owed to P.

Parties’ pleaded cases

3.P’s Statement of Claim is dated 14 May 2015.  In respect of how the Alleged Accident occurred, he pleads as follows (§13):

“ At all material times, [P] was in the course of employment carrying his work duties at the Premises by moving carton boxes of orange juice from the lorry parking at the carpark of Yung Shing Mall to the supermarket inside the shopping mall of [D2]. While he was using a cart provided by [D1] to deliver the carton boxes of orange juice, he had to lift up the loads of juice which were weighted about 60kg one step upward of about 6‑7 inch in height to the supermarket inside the shopping mall of [D2] by himself. Due to the slippery ground surface in that rainy day, he slipped and fell backward while he was lifting up the fully loaded cart over 6‑7 inch high step. His back landed on the floor and his left leg and left thigh were seriously hit by the fallen carton boxes of juice and the fallen cart. He lost consciousness and was unable to stand up by himself for a while and his co‑worker Mr Fok Yat Sun promptly lifted the cart and helped him up. [P] felt severe pain on his back and his leg. Due to the tight schedule, he continued to finish the assigned work despite that he got pain to continue his work for two hours till end of shift. There was increasing pain in his left leg.”

4.The natures of P’s respective cases against D1 and D2 are very different.  D1 is being sued in its capacity as P’s employer, whilst D2 as the occupier of the Carpark.  However, on the face of the Statement of Claim, the claims are not separately and distinctly pleaded, but are quite muddled up.  In the course of his opening submissions, upon my request, and now confirmed in his closing submissions[1], Mr Leung, counsel for P, has clarified that P’s position is now as follows:

(a)  Against D1 as P’s employer:

(i)  P’s case is based on:

(1)  breaches of duty of care as pleaded in §§16(a) to (k) of the Statement of claim, namely:

“ (a) Expose [P] to a risk of damage or injury of which [D1] knew or ought to have known;

(b) Failed to provide adequate warning, supervision and instruction for the safety to [P] for moving and lifting goods and objects of excessive weight;

(c) Failed to formulate a policy with regard to the safety and health at work to the workers including [P];

(d) Failed to provide adequate manpower or equipment to lift materials of excessive weight at the staircases at the Premises and/or the Workplace;

(e) Failed to carry out a risk assessment on the potential hazards that would be associated with lifting or moving goods or materials or objects of excessive weight over the staircase;

(f) Permit, cause or require [P] to work at the Premises and/or the workplace with hidden dangers or tripping and falling;

(g) Failed to provide a safe and healthy working environment to the workers, including [P] at the Workplace and/or the Premises;

(h) Failed to provide [P] with safety measure or tools or equipment for [P] to lift and move the cartoons of excessive weight in the rainy days, e.g. anti‑slippery boots;

(i) Failed to provide adequate and appropriate information, instruction, training and supervision to the workers, including [P];

(j) Failed to appoint responsible personnel to ensure that the safety and health policy is fully implemented and that the safety and health standards, instruction an procedures are strictly observed and followed.

(k) Failed to take all reasonable measures to ensure that the place where the workers carried out the works was safe and to provide and maintain a safe and proper system of working.”  

(2)  breach of statutory duties under sections 6(1), 6(2)(a), (b), (c) and (e)[2] of the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”), as pleaded respectively in §§18(A)(a), (b), (c) and (e) of the Statement of Claim; and

(3)  breach of statutory duties under sections 23, 24, 27, 28, 29, 30 and 31 of the Occupational Safety and Health Regulation, Cap 509A (“OSHR”), as pleaded respectively in §§18(B)(f) to (l) of the Statement of Claim;

(ii)  P no longer seeks to rely on any alleged breach of occupier’s liability;

(iii)  P no longer seeks to rely on section 7 of OSHO;

(iv)  P no longer seeks to rely on the doctrine of res ipsa loquitur;

(b)  Against D2 as the occupier of the premises where the Alleged Accident took place:

(i)  P’s case is based on:

(1)  breach of section 7(1)(a) of OSHO, as pleaded in §19 of the Statement of Claim;

(2)  breach of section 3 of the Occupiers Liabilities Ordinance, Cap 314 (“OLO”), as pleaded in §§12, 16(a), (f), (g), (j) and (k), and 17 (which repeats §16) of the Statement of Claim;

(ii)  Save section 7(1)(a) of OSHO, P no longer seeks to rely on any other sections of OSHO or OSHR;

(iii)  P no longer seeks to rely on the doctrine of res ipsa loquitur.

5.D1’s Defence is dated 24 July 2015:

(a)  Its employment relationship with P has been admitted;

(b)  It denies the occurrence of the Alleged Accident.  It denies liabilities on all of the pleaded bases;

(c)  The gist of D1’s defence may be found at §13.8, that:

“ The step which [P] allegedly lifted the trolley over is only a standard kerb along the pavement of the car park. The trolley provided to [P] is sufficient to climb up such standard kerb.”

(d)  On a further and alternative basis, if the Alleged Accident had occurred as alleged:

(i) it was caused solely or contributed to by P’s negligence (§18), and

(ii) it was caused solely or contributed to by the negligence of and/or breach of occupier’s duty by D2 (at §19).

6.D2’s Defence is dated 13 January 2016:

(a)  D2 does not admit that it was the occupier of the Carpark, on the basis that on the day of the Alleged Accident, the management and operation of the Carpark was with a contractor which D2 had engaged, by the name of Urban Property Management Limited (“Urban”) (§7);

(b)  D2 pleads (at §17 and §20) that in any event, given the engagement of Urban, the ways Urban managed and operated the Carpark, and the ways D2 supervised Urban in its management and operation of the Carpark, D2 has properly and reasonably discharged all its duties owed to P;

(c)  As regards the allegation that the floor at the spot where the Alleged Accident occurred was wet and slippery, D2 pleads (at §19(a) to (d)) that:

“ (a) Except for the Accident (which is not admitted), no slippery and/or abnormal and/or dangerous condition of the floor of the area near the Accident location was discovered and/or reported on the date of the Accident. [D2] did not have knowledge of the alleged slippery floor condition prior to the happening of the Accident.

(b) There was no previous record of similar accident at the area near the Accident location.

(c) At the material time, the floor tiles of the area near the Accident location were in good condition and the surface of the floor tiles was not slippery and was appropriate for use in a semi‑open area like the area near the Accident location.

(d) There were signs affixed on the wall near the Accident location for warning visitors against slippery floor.”

(d)  Similar to D1, D2 on a further and alternative basis pleads that if the Alleged Accident had indeed occurred as alleged, it was caused by or contributed to by the negligence of P or breach of duties by D1.

7.On 13 January 2016 and 28 June 2016, D2 and D1 respectively started contribution proceedings against each other.

The undisputed facts

8.The issues as to whether the Alleged Accident occurred, and if so its cause, are hotly disputed.  Whilst that is so, a lot of facts are however either not in dispute or not challenged.  I set those facts out first.

P, D1, and P’s employment

9.P was 40 years old on the date of the Alleged Accident.  He has received education up to Form 1.  He has indicated that his literacy in Chinese is limited, though he can read newspapers and horse news.

10.D1 is a well‑known company in Hong Kong.  Under it there was an entity called Citrus Growers International (“CGI”).  It supplied fruit juices to retailers.    

11.On the day in question (11 June 2013), P was employed by D1 as a Sales Assistant of the Sales Department of CGI.  By that time, he had been so employed for 13 years.  His main duty had been to deliver goods and products to customers of D1.  For that purpose, he had been using hand trolleys similar to the one he used on 11 June 2013.  When cross‑examined by Mr Sakhrani, counsel for D1, P accepted that during those 10 odd years, he would have used hand trolleys similar to the Hand Trolley hundreds of times, and he had done so safely.  He further accepted that in those 10 odd years, he would have lifted loaded trolleys over kerbs of 4” to 5” high many many times with no problem.

Yung Shing Court, the Carpark, the Loading Bays, and D2

12.The layout and orientation of the Ground floor of Yung Shing Court and the Carpark may be described as follows.

13.Yung Shing Court was at the time of the Alleged Accident a composite public housing estate at Fanling.  It comprised, inter alia, residential housing buildings, a shopping centre (the “Shopping Centre”) and various car‑parking facilities.  For the purpose of this trial, we are only concerned with its Ground Floor (“G/F”).  To show the layout of the G/F, I attach to the Judgment a copy of the floor plan of the G/F (the “Attached G/F Plan”).

14.The Ground Floor of Yung Shing Court comprised, amongst others, the Shopping Centre and car‑parking facilities (ie the Carpark).  They were connected in the way I am about to describe.

15.Inside the Shopping Centre on the Ground Floor there was, amongst other shops, a supermarket (coloured pink on the Attached G/F Plan, the “Supermarket”).

16.The Carpark itself comprised, amongst others, a loading and unloading area (ie the Loading Area), roads, ramps, and pavements.  The Loading Area had 4 loading and unloading bays (coloured blue on the Attached G/F Plan, the “Loading Bays”).  For ease of reference, those bays have been given the numbers “#1” to “#4” (starting from the one closest to the Supermarket).  Lorries could park at those loading bays for loading and unloading purposes.

17.Next to the Loading Bays was a covered passageway (ie the Covered Passageway, coloured orange on the Attached G/F Plan).  One could walk from the Loading Bays, onto the Loading Bay Pavement (defined below), onto the Covered Passageway, and via it (up a ramp, through a door and via some further passageways between shops inside the Shopping Centre) ultimately to the Supermarket.

18.I come back to the Loading Bays.  As said there were 4 of them. They were rectangular in shape.  They were parallel to and abutted one another.  There were however neither parallel nor perpendicular to the Covered Passageway, but were at an angle to it, and with their shorter sides nearer to it.  There were hence, as shown on the Attached G/F Plan and coloured green thereon, bits of zig‑zag shaped pavement between the Loading Bays and the Covered Passageway (the “Loading Bay Pavement”).  The Loading Bay Pavement was still uncovered.

19.The Loading Bay Pavement was not level with the ground of the Loading Bays.  Where they met, there was a raised concrete kerb (the “Kerb”, marked by a red line on the Attached G/F Plan).  The Loading Bay Pavement was therefore, compared with the Loading Bays, slightly elevated.  The Kerb was similar to those we see along pavements every day.  The height of the Kerb at different places varied, but was, except at places where gutter inlets were located, about 4” to 5” high.  I will come back to the height of the Kerb later. 

20.Inside each Loading Bay near, but several feet away from the Loading Bay Pavement, was a concrete parking stop (“Parking Stop”).  Each of the Parking Stops was a narrow concrete slab of about 10” in height that ran across the width of the bay.  It stopped vehicles from being driven onto the Loading Pavement and Covered Passageway.  Each of the 4 Parking Stops (“Parking Stop #1, #2, #3 and #4”), corresponding to which Loading Bays they were in) is shown on the Attached G/F Plan as a narrow rectangle inside the Loading Bays. 

21.Given the presence of Parking Stops and the zig‑zap shape of the Loading Bay Pavement, when one pushed or pulled a hand trolley from a Loading Bay to the Covered Passageway, and depending upon the route one takes, one might choose to (though did not necessarily have to):

(a)  negotiate through a gap (“Gap”) formed between the end of one of those Parking Stops and one of the protruding corners of the Loading Bay Pavement adjacent to it; and then

(b)  push or pull the hand trolley up the Kerb at some point onto the Loading Bay Pavement and then to the Covered Passageway.

22.For the purpose of this trial, the most relevant Gap is the one that was formed between the lower end (as appears on the Attached G/F Plan) of Parking Stop #1 and the protruding corner of the Loading Bay Pavement between Loading Bays #1 and #2 (marked on the Attached G/F Plan as “C”).  I will refer to that Gap as “Gap #1”.  As will be made clear later, that was the Gap which, according to P’s case, P chose to negotiate through.  Gap #1 was about 18” in width[3].

23.At one corner of Loading Bay #1 where it met the Kerb, on the ground and along the Kerb, there was a gutter inlet (marked on the Attached G/F Plan as “Gutter Inlet #1”).  If one walked along Loading Bay #1 through Gap #1 towards the Kerb, one could walk over Gutter Inlet #1 before one walked up the Kerb at the corner onto the Loading Bay Pavement.  By design, so that water could run towards it, the ground slanted towards Gutter Inlet #1.  Hence, and correspondingly, the Kerb where Gutter Inlet #1 was was slighter taller than the average, at about 5¾” [4]. As again will be made clear later, it was at Gutter Inlet #1 where P said he pulled the Hand Trolley up the Kerb and slipped.

The management of the Carpark and the Shopping Centre

24.D2 was responsible for the management of the Shopping Centre.  It had, for the management and operation of the Carpark, engaged Urban.  It had, for the provision of security services for the Shopping Centre, engaged another company called Sino Security Services Limited (“Sino”).  D2 had further engaged another company called Best Result Environmental Services Limited (“Best Result”) as the cleaning contractor.

25.Despite its original non‑admission in its Defence, D2 has in the course of the trial through its counsel Ms Loh accepted that it was indeed the occupier of not only the Shopping Centre but also and the Carpark.  This has ceased to be an issue in dispute.

Events leading to the Alleged Accident

26.On the day in question (ie 11 June 2013), P was to deliver goods as a team of 3 (the “Team”): P himself, the driver (called 翁景輝, “Yung”), and one other co‑worker (called 霍日生, “Fok”).  They had the use of a lorry (the “Lorry”).

27.P normally travelled in the Lorry.  It was equipped with one or more trolleys.  One of them was the Hand Trolley.

28.Before the Accident, and even during that same morning, P had been using the Hand Trolley satisfactorily with no problem.

29.That day, the Team was tasked with the duty of delivering fruit juices to various supermarkets in Hong Kong.  One of those supermarket was the Supermarket.

30.According to the relevant invoice issued to the Supermarket, the quantity and packaging of the juices (the “Juices”) that were required to be delivered to the Supermarket were (1) 12 bottles of 700ml juices, (2) 12 bottles of 1 litre juices, and (3) 15 bottles of 2 litre juices.  The packaging of those juices is relevant to the issue as to how they were or could be stacked on the Hand Trolley when the Alleged Accident took place. 

31.11 June 2013 was a rainy day.  The amber rainstorm signal was issued between 10:50 am and noon.

32.The Lorry arrived at Yung Shing Court at about 2:30 pm.  It was reversed into and parked at Loading Bay #1.  P was assigned the task of delivering the Juices to the Supermarket.  The Juices were stacked onto the Hand Trolley.  P pulled the loaded Hand Trolley from Loading Bay #1 to the Supermarket.  It was still raining at that time according to P.  The Alleged Accident was said to have happened during that delivery process.

33.P had delivered goods to Yung Shing Court more than 50 times prior to the date of the Alleged Accident.  He agreed with Ms Loh that he was familiar with the Carpark, and had made deliveries there almost every day.

The Hand Trolley

34.For his job, P was provided by D1 with the use of hand trolleys.  As I have recorded above, P accepted that during his employment with D1, he would have used hand trolleys similar to the Hand Trolley hundreds of times, and would also have lifted loaded trolleys over kerbs hundreds of times.  He had experienced no problem.    

35.The dimensions (and in particular the sizes of its wheels) of the Hand Trolley are relevant when it comes to the assessment of P’s evidence on the route he took and the cause of the Alleged Accident.  However, the very Hand Trolley used by P that day has neither been identified nor retrieved.  I have only been provided with photographs and dimensions of a hand trolley of a type similar to the Hand Trolley (the “Comparable Hand Trolley”).  It is one of those common two‑wheeled carts for moving heavy objects by hand.  Its structure and dimensions may be described as follows:

(a)  Its main frame is made of metal, rectangular in shape, of about 50” tall and 12” wide;

(b)  Each of the uprights of the frame has a handle welded to it, at somewhere towards the top about 4/5 up the length from the ground;

(c)  At the bottom there are a small metal ledge (the “Ledge”) and two wheels (the “Wheels”).  The Wheels are on the same side of the frame where the handles are welded to.  The Ledge is also welded onto the frame but protrudes towards the other side;

(d)  Each of the Wheels has a tyre and is about 8” in diameter.  Guarding the tyres is a pair of metal guard wings (of about 9” tall and 3” wide) welded to and protruding sideways from each side of the frame at the bottom;

(e)  The Ledge is flat against the ground when the cart is upright.  It is welded to the other side of the frame where the handles are welded to.  It is about 16” wide and 9” deep.  Objects can be stacked onto the Ledge.  With the Wheels as the fulcrums, the trolley may be tilted backwards towards the side of the handles so that it can be pushed or pulled on the Wheels with the load;

(f) The maximum overall width of the trolley, from one end of the left guard wing to the end of the right guard wing, is about 20”[5] — hence wider than the width of Gap #1 irrespective of the width of any goods stacked on the Ledge[6].

Witnesses

36.P gave evidence. 

37.Fok and Yung have each signed a statement prepared for the purpose of this trial.  The statements have been filed.  However, Fok and Yung were not called during the trial as witnesses.  I have directed that their statements be expunged.

38.On behalf of D1, Mr Pang Chi Ming was called.  He was the sales manager of D1.

39.On behalf of D2, Ms Ng Wing Nam was called.  She was at the material time a property manager employed by D2.

Credibility of witnesses

40.As to the approach on assessing the credibility of witnesses,I remind myself of the importance of considering theinherent likelihood or unlikelihood of the witness’ evidence, the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence.  I need to consider the totalityof the evidence.  I warn myself against attaching undue weight to demeanour,though demeanour is obviously relevant when considering credibility. 

P’s evidence

41.P’s evidence is vital to his claim.  He is the only witness called who can give direct evidence on the Alleged Accident.

42.I have considered his evidence very carefully.  For the following reasons, I find that P is neither a credible nor reliable witness.

Inconsistent versions as to how the Alleged Accident took place

43.At different stages, a number of very different versions as to how the Alleged Accident took place have been put forward by or on behalf of P.

44.I have reproduced above §13 of the Statement of Claim.  I highlight the most important sentence therein, that “Due to the slippery ground surface in that rainy day, [P] slipped and fell backward while he was lifting up the fully loaded cart over 6‑7 inch high step”. 

45.It is not (and has never been) P’s pleaded case that there was any greasy stain or patch on the ground of the Loading Bay which led to the Alleged Accident.

46.However, in a letter dated 19 June 2015[7](hence just slightly more than 1 month from the Statement of Claim) from Messrs WT Law Offices (“WTL”, P’s solicitors) to Clyde & Co (solicitors for D2), WTL on behalf of P said that the Accident was caused by inter alia the negligence of D2, and provided particulars of negligence relating to the presence of greasy stain on the floor.  They said therein (at §4) that:

“ The Accident was caused by ‘the negligence and/or breach of common duty of care, and/or breach of statutory duty as occupier of the Premises on the part of [D2] and/or their servants and/or agents and/or their employee.

The particulars of negligence are as follows:

…

(b) Failing to warn our client or the other passer‑by of the existence of the patch of transparent stain on the floor which was slippery and dangerous;

(c) Failing to maintain and ensure the floor is dry at all time and to remove any greasy and slippery transparent stain being left on the floor of the Premises;

…

(e) Permitting or causing the patch of transparent stain being left on the floor via its agent and/or employee without removing it timely causing hidden dangers of slippery hazard.”

47.On that very same day, Clyde & Co replied[8]. They referred to that letter of 19 June 2015 from WTL and said that:

“ We consider that your client should amend his Statement of Claim because:-

1. In paragraph 4 of your said letter [of 19 June 2015], you set out certain particulars of negligence of our client. Your client also alleges that there was a ‘patch of transparent stain’ and ‘greasy and slippery transparent stain’ on the floor. These particulars of negligence and allegations are not pleaded in your client’s Statement of Claim.

…

As we are now preparing our client’s Defence, to save the costs for filing an Amended Defence (such costs will no doubt be borne by your client), if your client considers it necessary to amend his Statement of Claim, please confirm on/before 23/06/2015.”

48.Despite the specific invitation made on behalf of D2, P has never amended the Statement of Claim to plead the presence of any “patch of transparent stain” or “greasy and slippery transparent stain”.

49.Then, in a subsequent letter of 9 July 2015[9], WTL put forward in correspondence another reason for the Accident, namely that P had “tripped over”.  In their letter of that date to Clyde & Co, it was said that:

“ 1. It is our client’s case that the accident happened at the boundary of the car park of Yung Shing Shopping Centre and was at the edge of the area as coloured in pink in the floor plan where [P] stepped on it, tripped over and fell down attached with you letter dated 26 June 2015 [sic.] which your client was responsible for the management of the accident location.

2.  It is our client’s case that he had not noticed any warning signs of the wet floor nor the kerb near the location of the accident.  Besides the wet floor, the existence of the kerb was a potential danger which your client had failed to give warning notice to visitors.  In Fung Siu Ling v Prosperity Land Estate Management Limited DCPI 417/2006, the Plaintiff tripped over a kerb near the entrance of a building and sustained personal injuries, and the Court found that the Defendant, as the occupier, was liable for her injuries as there was an absence of conspicuous warning signs to warn visitors of the potential danger of the kerb and steps.”

50.P has given for the purpose of this trial two witness statements.  The first one is dated 2 March 2016 (“P/WS#1”).  The second one is dated 14 September 2017 (“P/WS#2”).  He adopted both as his evidence in chief.

51.The material parts of P/WS#1 are as follows:

「 8. 因在運送途中本人要靠自己將載滿貨物的手推車(此手推車有2個輪，車約51吋高) 因路面及落貨區設計本身有一梯級的問題，所以本人要一併拿起以越過一級約6至7吋高的梯級，事發時，本人是雙手把手推車向上及向後拿起以越過那梯級的。因為當時正在下雨，而那停車場是露天的，由於地面十分濕滑，本人的腳一滑，不慎向後滑倒，摔倒在地上，當時穿著自購波鞋，運貨帶手推車一併壓倒在本人左腳上。當時，司機翁景輝及另一跟車送貨員霍日生目擊意外的經過。本人傷及腰部、背部、腳部、頸部及手部，當時感到極到痛楚。

9. 由於當時感覺左腳及背部極度痛楚，本人不能站立。所以在此期間，本人另一位跟車送貨同事霍日生立即上前幫忙拿起壓著本人左腳的手推車，然後扶起本人。

10. 雖然當時本人感到極度痛楚，但為了儘快完成當天工作，勉強地堅持繼續工作，直至當天下午6時下班為止。

11. 直至翌日，即2013年6月12日，由於本人腰部、左手，頸部，肩膀及左腳劇痛無比，本人立即致電至本人上司報告昨日意外情況經過及受傷一事，其後獨自前往雅麗氏何妙齡那打素醫院急証室求診及接受治療。」

52.The material parts of P/WS#2 are as follows:

「 3. …第一被告人提供我送果汁用的是舊款式，而意外當天使用的手推車很殘舊，金屬已生鏽，手柄亦有燒焊過。而且，第一被告人提供的手推車的尺寸並不統一。關於意外當天使用的手推車，雖然我並不清楚其車輪的實際大小，但我記憶中其半徑並沒有4英寸大，而意外時事發地點的平臺梯級高度約為6至7英寸高。另外，我並不同意假若車輪比平臺梯級高便不需要把手推車抽起的講法。基於貨物的重量，就算假若車輪比平臺梯級高，亦有需要把手推車抽起才能搬上平臺。

4.     …本人不清楚意外當天需要送多少支果汁到雍盛廣場內的華潤超級市場。但貨物的總重量約為100kg。…另外，意外發生時，我送的貨物是載在8個紙箱中的，而貨物是由司機翁景輝入紙箱的。當天的紙箱以5層堆疊在手推車上，底下的3層每層有2個紙箱，上面2層各1個紙箱。」

53.In neither statements has P mentioned any greasy stain.  Nor is it his case that he had “tripped over”.  He said in P/WS#1, and I highlight this sentence, that “因為當時正在下雨，而那停車場是露天的，由於地面十分濕滑，本人的腳一滑不慎向後滑倒，摔倒在地上 …”. 

54.The version P provided during cross‑examination is different from what he has stated in his witness statements.

55.During cross‑examination by Mr Sakhrani, P said that he in fact saw greasy stains on the floor.  He was asked to mark on a floor plan showing the Loading Area where he said he saw those patches immediately before the Alleged Accident. He marked on it two spots, which are shown on the Attached G/F Plan as “X” and “Y”.  The patch marked “X” was on the spot where P said he slipped. He confirmed when cross‑examined by Ms Loh that he slipped at the spot marked “X” because of the greasy stain.  He also marked on the plan two spots (also shown on the Attached G/F Plan) where he claimed he saw oval patches of grease.  He said that he noticed those other two patches because he said someone delivered a whole pig there.

56.When asked why he did not mention such an important matter in his witness statements, he said that he was “not familiar with this kind of stuff ”, and that his lawyers did not ask him.  He further said that it was his negligence in not mentioning the point.

57.In the course of his cross‑examination by Ms Loh, P accepted that he had never made any complaint to the Carpark or the Shopping Centre about the presence of any greasy stain.

58.On the question as to whether P slipped on an oil patch, P was further referred by Ms Loh to an interview P attended on 8 August 2013 with the loss adjustor engaged by the insurance company.  The record of interview[10] has been produced.  It was signed by P.  It was recorded that he had been told that he could make amendments, changes and additions to the record before he signed.  According to the 3^rd and 4^th questions and answers:

「 問: 事發當時，地面情況怎樣?

答: 當時地面濕滑。

問: 你是否知道當時地面濕滑的原因?

答: 因為當時正在下雨，而那停車場是露天的。」

59.When asked by Ms Loh as to why he did not tell the interviewer about the greasy stains on the floor, P said it was because the loss adjustor did not ask him clearly the reason why he slipped and fell.  But that was the exact question he was recorded to have been asked on the next page of the record:

「 問: 你是否知道你滑倒的原因?

答: 因地面濕滑所致。」

When that question and answer was shown by Ms Loh to P, P did not give any meaningful answer. During the interview, P in fact told the loss adjustor that he “不慎向後滑倒 ”, which words “不慎 ” he understood to mean “carelessly”.

60.The reason for the Alleged Accident is the single most important aspect of P’s claim.  I have no doubt that P realized that.  If he at the time of the Alleged Accident had in fact seen on the ground oil patches and had slipped on one, he could not have neglected to mention those facts to the loss adjustor, or in the Statement of Claim (and this is particularly so given the correspondence between WTL and Clyde & Co), or in his witness statements (which are both in Chinese).  His legal advisers also could not have said (and no explanation has been tendered in evidence as to why they did) that P had “tripped over”.

61.I do not find P’s evidence that he saw greasy stains on the ground and that he slipped on one credible or reliable.  This also impacts on his overall credibility as a witness.

Other members of the Team not called

62.Both Yung (the driver) and Fok (the co‑worker) have each signed a witness statement for the purpose of this trial. 

63.In his Statement of Claim, P avers at §13 that:

“ … his co‑worker [Fok] promptly lifted the cart and helped him up …”

64.In P/WS#1, P says that:

「 8. …當時，司機翁景輝及另一跟車送貨員霍日生目擊意外的經過 …

9.     由於當時感覺左腳及背部極度痛楚，本人不能站立。所以在此期間，本人另一位跟車送貨同事霍日生立即上前幫忙拿起壓著本人左腳的手推車，然後扶起本人。」

65.On the face of what P has stated in his Statement of Claim and P/WS#1, Yung and Fung would have been important witnesses in support of his case.

66.But according to the witness statements forms taken by D1 from Yung[11] and Fok[12] on 14 June 2013[13] in respect of the Alleged Accident:

(a)  Yung was recorded to have reported that:

「 當時我在車箱 [sic] 内落貨比跟車，之後落完貨落車後見到徐健強坐左落地下，我問佢做咩事，佢話無事。」

(b)  Fok was recorded to have simply said that:

「 在送貨時坐在地下。(見徐健強)」

67.Ultimately, neither Yung nor Fok was called as a witness.  Mr Leung only explained to me from the bar table that they were unwilling to come because of their work[14].

68.It is in my view not sufficient for explanation simply to be tendered from the bar table.  Admissible evidence (eg communication between P (or his solicitors) with Yung and Fok) should have been adduced.  In any event, I do not accept that the explanation tendered is a good one.  P could have applied to compel the attendance of Yung and Fok.  P chose not to.

69.In the circumstances of this case, I draw the inference that the evidence of Yung and Fok would not have helped P’s case — see Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434.    

The route which P said he took from the Lorry to where he says the Alleged Accident occurred

70.P has not in the Statement of Claim pleaded the route which he took from Loading Bay #1 to the spot where he claims the Alleged Accident took place.

71.In P’s Answer to Interrogatories dated 31 August 2016, P was specifically asked as part of Interrogatory 2 to state “The route taken by [P] while he delivered the goods from the lorry to the alleged accident location”.  In answer, P merely replied that “I delivered the goods from the left middle part of the lorry to the accident location”.  He further marked on a floor plan attached to his answers “X” denoting where he claims was “The exact location where my left leg was hit by the trolley” (same as the spot marked “X” on the Attached G/F Plan).

72.Upon request from Clyde & Co, WTL by letter of 22 March 2017[15] marked on a photograph “indicating the route taken by [P] while he delivered the goods from the lorry to the accident location”.  It shows that P went through Gap #1, went over Gutter Inlet #1, up the Kerb at the corner onto the Loading Bay Pavement at the spot marked “X”.

73.Taking that route would have presented a number of problems[16]:

(a)  As has been explained above, the width of the Hand Trolley (the overall width from one end of the left guard wing to the end of the right guard wing being about 20”) is wider than Gap #1 (about 18”);

(b)  Again as has been explained above, the task of P that afternoon was to deliver the Juices to the Supermarket.  There were some 39 bottles in 8 boxes. They weighed about 60kg in total.  They were stacked up onto the Ledge of the Hand Trolley in 5 tiers;

(c)  Hence, given the width of the Hand Trolley, in order to go through Gap #1, one wheel of the Hand Trolley would have to go over either the Kerb (at about point “C” as marked on the Attached G/F Plan) or the Parking Stop #1.  That would have caused the Hand Trolley to tilt to one side;

(d)  The boxes containing the Juices were not bundled together with any rope or cling film.  They were liable to topple or fall down when the Hand Trolley tilted;

(e)  Given the design of the Gutter Inlet #1 (as explained above), more water would have flushed and objects carried over there.  The Kerb at that point was also taller than average;

(f)  The ground at the Gutter Inlet #1 was not even;

74.The route which P said he took was in short an objectively cumbersome one.

75.P was cross‑examined by Mr Sakhrani as to why he took that route. It was pointed out to him that he could have gone towards point “C” as marked on the Attached G/F Plan or anywhere between points “C” and “D” (also marked on the Attached G/F Plan).  Had he done so, there would not have been any need to go through Gap #1 (or indeed any Gap), and there would not have been any need to go over Gutter Inlet #1 (or any gutter inlet).

76.In answer, P accepted that it would have been easier to go over other routes, but claimed that he saw greasy stain on top of the water at the spot marked “Y”, and that was the reason why he took the route as he did.  He subsequently also claimed that there was in fact another lorry parked at Loading Bay #2.

77.P accepted in this context that the presence of greasy stain is an important point.  Yet, he has failed to mention that fact whether in his Statement of Claim or witness statements.

78.In this regard, I also accept Mr Loh’s submissions[17], that if P had been so cautious in checking the floor condition before pulling the Hand Trolley up the Kerb, why then would he have decided to take the cumbersome route and go up Gutter Inlet #1 when there was also a patch of greasy stain at the spot marked “X” (where P claims the Alleged Accident occurred)?

79.P’s evidence in relation to the route he had allegedly taken from the Lorry to the spot where he said the Alleged Accident took place is either inherently improbable (if he had in fact seen no greasy stains), or tainted with blatant internal inconsistencies (for having failed to mention any greasy stain either in his Statement of Claim or witness statements).

Exaggeration of his case

80.In his Statement of Claim, at §13, verified by a Statement of Truth[18], P claims that “He lost consciousness and was unable to stand up by himself for a while”.  That is a gross exaggeration of his case not supported even by his own witness statements.

81.He claimed that after the Alleged Accident, and despite extreme pain, he continued to work for several hours:

「 雖然當時本人感到極度痛楚，但為了儘快完成當天工作，勉強地堅持繼續工作，直至當天下午6時下班為止。」

82.I agree with Mr Sakhrani’s submissions in this regard[19] that P was casual about the facts he alleged:

(a)  In P/WS#2 at § 4, he refers to the Juices and claims that “貨物的總重量約為100kg”, when even his pleaded case at §13 of his Statement of Claim is that the total weight of the Juices was “about 60 kg”; and

(b)  In both his Statement of Claim[20] and P/WS#2, he claims that the height of the Kerb was 6”‑7”, when even the height of the Kerb at Gutter Inlet #1 was only about 5¾”.

Untruthful account of his medical history to the medical experts

83.When P was jointly interviewed by Dr Wong Chin Hong and Dr Kou Sio Kei on 10 December 2013, he was recorded in the Medical Report[21] to have told the doctors that:

“ His left thigh was knocked by trolley in 2004.

He had right index finger fracture in a road traffic accident in 8^th April 2011.

He also sustained left buttock injury in December 2011.

He has enjoyed good past health otherwise. He has no previous low back paid.

…” (Emphasis added)

84.However, medical records subsequently obtained from the Accident and Emergency Department (“AED”) of Alice Ho Miu Ling Nethersole Hospital show that prior to the date of the Alleged Accident, between 4 April 2008 and 14 March 2013, P had attended the AED on no less than 9 occasions complaining about low back pain (6 occasions), sprain back (1 occasion), back pain (1 occasion) and left hip pain (1 occasion). 

85.The discovery of those records and information necessitated the preparation of a Supplemental Medical Report by the two medical experts.  In that report, Dr Kou expressed the following views:

“ During the interview on 10^th December 2013 in preparation for the joint expert report, Dr Wong and Dr Kou were misled by his testimonial. He failed to provide important and relevant past medical and psychiatric information. Therefore, in that joint expert report, it was concluded that ‘He had enjoyed good past health otherwise. He had no previous low back pain’. Obviously this was not the case and it deviated significantly from the truth. Dr Kou suggested that the statement should be amended as follows:

‘ [P] had history of lower back pain since 2008 with repeated attendance for medical treatment.  He was also under the care of the psychiatrist for adjustment disorder with anxious mood and post‑traumatic stress.’ (Dr Wong agrees the amendment in the past history statement is consistent with the newly available documents.”  

86.When P was cross‑examined by Ms Loh on this point, his evidence was evasive.  He agreed initially that he did not tell the medical experts that he had low back pain prior to the Alleged Accident.  Upon further cross‑examination, he changed his answer and said that he did tell them, but immediately changed his answer back to no.  He then claimed that he could not remember whether the medical experts had asked him whether he had had low back pain before.  He also tried to draw a distinction between waist pain and low back pain. 

87.The evidence suggests in my view an attempt on P’s part to mislead the medical experts as to his medical history.  This adversely affect P’s credibility and reliability as a witness.

Conclusion on P’s credibility

88.Given all the matters set out above, I conclude that P is neither a credible nor reliable witness. 

P’s failure to prove his pleaded case

89.As I have mentioned above, P is the only witness called who can give this Court direct evidence on how the Alleged Accident occurred.  I have, for the reasons set out above, ruled that he is neither a credible nor a reliable witness.  The result is that there is neither credible nor reliable evidence before me as to whether the Alleged Accident as pleaded by P in his Statement of Claim has occurred (not to mention details as to how it occurred). On the evidence, I am not in fact not satisfied that it has.

90.On the facts of this case, in considering P’s claim, it is of particular importance to have full details as to how the Alleged Accident occurred (if it had occurred).  P was at the time of the Alleged Accident an experienced delivery worker.  He had previously and on multiple occasions been using hand trolleys similar to the Hand Trolley.  He had over the years lifted loaded trolleys over kerbs of 4”‑5” high many many times with no problem.  He was familiar with the Carpark and the Loading Bays.  P has accepted both in P/WS#1 and his interview with the loss adjustor that he “不慎向後滑倒”.  The doctrine of Respondent ipsa loquitur has no application, and (rightly so) is not being relied upon.

91.Specifically in so far as P’s claim against D1 is concerned, as Mr Sakhrani submits[22], which I accept, while an employer is under a duty to its workforce to take reasonable care for their safety, an employer is not obliged by the law to remove every risk that may confront its employees[23]. An employer’s duty to take reasonable care must be considered in the context of the overall factual matrix, having regard to the foreseeable risks, the extent thereof, the experience of the work, etc.  P has failed to establish that factual matrix in the present case.

92.Specifically in so far as P’s claim against D2 is concerned:

(a)  Sections 3(1) and 3(2) of the OLO provide that:

“ (1) An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2)  The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

(b)  Similar to sections 3(1) and 3(2) of the OLO, section 7(1)(a) of OSHO provides that:

“ (1) If an employee’s workplace is located on premises that are not under the control of the employee’s employer, the occupier of the premises must ensure that—

(a) the premises …

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

(c)  The test to apply when considering the liability of an occupier was considered by Megaw LJ in Ward v Tesco Stores Ltd [1976] 1 WLR 810 (at pp 815‑816):

“ …It is for the plaintiff to show 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 defendants than the absence of fault; and to my mind the judge was right in taking that view of the presence of this slippery liquid on the floor of the supermarket in the circumstances of this case: that is, that the defendants knew or should have known that it was a not uncommon occurrence; and that if it should happen, and should not be promptly attended to, it created a serious risk that customers would fall and injure themselves. When the plaintiff has established that, the defendants can still escape from liability. They could escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system, in relation to the circumstances, to provide for the safety of customers. But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers. That, in this case, they wholly failed to do.”

(d)  In Ward v Tesco, that “unusual event” was the presence of some yoghurt in the floor of the defendant’s supermarket which the English Court of Appeal held, in the circumstances of that case, was sufficient to place a burden on the defendants to show on the balance of probabilities that the plaintiff would have slipped on the yoghurt despite a proper system designed to give responsible protection to customers against spillage.

(e)  Ward v Tesco was applied by Sakhrani J in Wat Kwing Lok v The Kowloon Motor Bus Company (1993) Limited (unrep, HCPI 936/2005, 20 November 2007), that:

“ 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.”

(f)  P in the present case has failed to show any unusual event which he has the burden of proving. 

Conclusion on liability

93.For all these reasons, I reject P’s claim against both D1 and D2 on the issue of liability.

Quantum and the contribution proceedings between D1 and D2

94.P’s case on quantum is linked to the manner in which the Alleged Accident took place.  This is particularly so where Dr Wong Chin Hong (the expert engaged on behalf of P) has somehow suggested that certain pre‑existing problems which P had been suffering could have been aggravated by the Alleged Accident[24]. I do not find it appropriate (or indeed possible) to consider the issue of quantum in a vacuum, and I do not.

95.Similarly, the resolution of the question of contribution between D1 and D2 is dependent upon a prior resolution of the exact cause of the Alleged Accident, without which it will be impossible to consider the relative blame between the defendants.

Disposition

96.For the above reasons, I dismiss P’s claim against both D1 and D2.

Costs

97.I make a costs order nisi that D1 and D2 shall have the costs of the action (including for avoidance of doubt the costs of the contribution proceedings between them).  The costs are to be taxed if not agreed.  Any application for variation should be made within 14 days from the date hereof, submission in response within 7 days of receipt, and reply within another 7 days.

Mr Colin Leung, instructed by WT Law Offices, for the Plaintiff

Mr Ashok K Sakhrani, instructed by Fairbairn Catley Low & Kong, for the 1^st Defendant

Ms Phillies Loh, instructed by Clyde & Co, for the 2^nd Defendant

Attachment