Chu Chung Man v. East Asia Moving Ltd
Read the full judgment text of DCEC 883/2015 on BabelCite. This District Court judgment was delivered on 29 May 2020.
1. Mr Chu Chung Man (“Chu”) claims against East Asia Moving Limited (“East Asia”) for employees’ compensation as a result of injury sustained on 15 December 2014 in the course of employment (“the Accident”)(“EC Claim”). Chu also sues East Asia for damages for personal injury arising out of the same accident (“PI Action”).
Cited by 3 cases · Cites 5 cases
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DCEC 883/2015 (Heard Together) [2020] HKDC 362 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO 883 OF 2015 ________________________
________________________ IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 1654 OF 2016 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ 1.Mr Chu Chung Man (“Chu”) claims against East Asia Moving Limited (“East Asia”) for employees’ compensation as a result of injury sustained on 15 December 2014 in the course of employment (“the Accident”)(“EC Claim”). Chu also sues East Asia for damages for personal injury arising out of the same accident (“PI Action”). 2.This is the trial of the EC Claim and the PI Action heard together. 3.Chu is represented by Mr Edward Poon of counsel. East Asia used to be legally represented but is no longer. It now acts in person and is represented by its director Mr Chan Chun Leung (“Chan”). Chu gives evidence for himself while Chan gives evidence for East Asia. 4.The issues raised by East Asia’s Answer[1] in the EC Claim are:-
5.In the PI Action, apart from the issues raised above, East Asia also denied having breached any duty of care (even if one was owed) and the Accident was wholly caused by Chu’s own negligence[2]. Background and the accident 6.Chu received tertiary education and was 30 years’ old at the time of the Accident. 7.It is common ground that he was an experienced porter. He had at one point in time owned and operated a moving company. He has had altogether 7 years’ experience in working as a porter prior to being employed by East Asia in 2012. 8.In 2012, through the introduction of his half brother one Lam Shu Wing (林樹榮)(“Lam”) who worked as a manager in East Asia and who was also the son-in-law of “the president” of East Asia, Chu was employed by East Asia as a driver cum porter. Chu in evidence recounts that he was interviewed by Chan in the presence of Lam in a restaurant in around July 2012, and that he was employed by East Asia and started working for it about a week later. This incident is not disputed by East Asia. 9.East Asia does not dispute that Chu has been so employed. Its case is that Chu has already been dismissed by East Asia at the time of the Accident, due to a traffic accident caused by Chu’s careless driving. Chu’s case is that he was no longer employed by East Asia as a driver after the conviction of careless driving for which he has lost his driving license until 11 December 2015, but he continued to work for East Asia as a porter. 10.It is common ground that East Asia was engaged by one Ms Chung (“Chung”) to move her furniture and belongings from Flat D, 7th Floor, Tak Fung House, 253 Wanchai Road, Wanchai (“the Moving Job” and “the Flat” respectively) to her new residence on 15 December 2014 at the total costs of HK$8,800. 11.Tak Fung House was not serviced by any lift so that these furniture and belongings have to be manually carried down the stairs to the roadside where the lorry would be parked. 12.According to Chu:-
EC Claim - liability Did Chu take part in the Moving Job? Did the Accident occur whereby Chu sustained injury? 13.East Asia says that Chu never took part in the Moving Job. 14.East Asia filed the witness statement of the said 簡朗, who was and still is its employee and who as said took part in the Moving Job. He is going to say that Chu did not take part in the Moving Job. 簡朗 however does not turn up to give evidence for East Asia. I also note that East Asia does not call Tsang or the said Chan Tat Shing to give evidence to say that Chu was not present. East Asia also does not call Lam (who is still in the employ of East Asia) to refute Chu’s allegation that Chu had called him on the day of Accident arranging for more workers to come and that Chu had reported the Accident and his injury to him the next day. In short, there is no evidence proffered from East Asia to support its allegation that Chu did not take part in the Moving Job. 15.In support of his case, Chu produced a Whatsapp message sent by Chung to East Asia on 17 December 2014, in response to the solicitation by East Asia for feedback in relation to the Moving Job, in which Chung commended “… 貴公司同事，朱仔親切友善，帶領年青團隊⋯”[3]. This message is not disputed by East Asia nor is the fact, as given by Chu in evidence, that “朱仔” in the message referred to Chu. Therefore, there is undisputed documentary evidence from Chung showing that Chu has taken part in the Moving Job. 16.Moreover, Chan gives evidence about the general operation of East Asia, thus. Either Chan, Lam or one other was responsible for visiting sites to take a look at the goods, furniture or such to be moved and the surroundings. After that, they would note down the items and other pertinent information in East Asia’s standard “上門報價資料單” and therein quote the price to be agreed to by the customer. If East Asia is engaged, it would assign the job to the responsible driver cum porter by giving to him East Asia’s printed invoice containing all the pertinent information. The driver cum porter would then select as his team a suitable number of porters for the job. The driver and porters are required to wear a uniform provided by East Asia when performing their duties. The driver and porters are paid by sharing among themselves 40% of the total price for the job. The drivers cum porter usually would get a bigger cut. East Asia maintains a fleet of lorries each assigned to the use and care of a driver. East Asia would also provide the porters with the necessary equipment, but the porters are told to buy it themselves and get reimbursement from East Asia. When there are unusually heavy or difficult-to-move items, difficult situations, or additional items to be moved, the driver or the porters would call Chan for instructions or to confirm the quoted price for moving the additional items. 17.Understandably, this scheme provides good incentive to the porters to perform well, or else they would not be selected by the driver cum porter. On the other hand, a driver cum porter who leads his team to good performance would receive good feedback from customers and East Asia’s management could then assign more or better jobs to him. 18.As have mentioned, East Asia does not dispute that Tsang was the driver cum porter employed by it and assigned by it to be responsible for the Moving Job. East Asia also does not seriously dispute Chu’s evidence that Tsang selected and asked him to take part in the Moving Job. 19.Further, I accept Chu’s evidence as to his account of how the Accident occurred and that he had sustained injury, as set out in paragraph 12 above. I also note that in all the reports of the treating doctors, none suggested his injury was otherwise than real. 20.In the premises, I find that Chu took part in the Moving Job, and that in the course of moving the Wardrobe down the stairs the Accident occurred whereby he sustained injury. Was Chu dismissed from the employment by East Asia at the time of the Accident? 21.East Asia alleges that Chu had already been dismissed by it at the time of the Accident. Its evidence in support is contained in paragraphs 3 to 5 of both of Chan’s witness statements, one filed for EC Claim and the other for the PI Action. His evidence is identical in the 3 paragraphs in both statements. There Chan said that:-
22.However, the Certificate of Previous Conviction under Road Traffic Ordinance in relation to Chu[4] certified that Chu was convicted of careless driving on 2 occasions: (a) the offence date was 26 July 2012 and conviction date 6 December 2012, and (b) the offence date was 16 January 2013 and the conviction date 8 May 2013. According to Chu, which is not disputed, he lost his driving license after the second conviction of careless driving. Therefore, by Chan’s account that Chu was dismissed after a traffic accident, Chu would have been so dismissed either in late July 2012 or latest by mid January 2013, which would have been either about two and a half years ago or almost two years ago prior to the Accident, and not a month ago as Chan said. I find it hard to believe that Chan would get the timing between these 2 events – the traffic accident and the Accident – so wrong. I think the traffic accident was recounted as so close in time to the Accident so as to make the alleged dismissal convincing. 23.Moreover, according to Chan’s account of the events, Chu must have continued to be employed by East Asia as a porter after “his dismissal as a driver” because Chan himself said that Chu was working as a porter of East Asia when this event in which the customer complained happened. 24.When asked by this court whether he has any more factual matters to add, particularly in relation to any communication concerning Chu’s alleged dismissal, whether oral or in writing, (a) from East Asia/Chan to Chu, (b) from East Asia/Chan to Lam, and (c) from East Asia/Chan to other drivers cum porters who were tasked by East Asia to select porters, Chan in evidence answers that he has nothing to add. In his 2 witness statements, no such communications whatsoever were mentioned by Chan. 25.Clearly, according to Chan’s evidence concerning how East Asia operated, those parties – Chu obviously, Lam being a manager and the drivers cum porters should and would have to be informed of Chu’s dismissal as a porter in the normal course of business. It is inexplicable why they have not been so informed if the alleged dismissal did take place. 26.In evidence, Chan also confirms that East Asia has not asked for the return of its uniform from Chu. 27.In the result, I conclude that the alleged dismissal of Chu as a porter not proved on balance of probability and I find against it. 28.In the premises, I find that Chu was an employee of East Asia at the time of the Accident and I find East Asia liable to pay Chu employees’ compensation. Chu’s appeal against Form 9 29.By a Certificate of Review of Assessment (Form 9) dated 18 February 2016, Chu was assessed, after review, to have suffered loss of earning capacity permanently at 1.5% caused by back pain and stiffness and left foot swelling and pain. Chu’s absence from duty necessary as a result of the injury was assessed to be a total of 161 days over 10 intermittent periods between 18 December 2014 to 19 June 2015. Basically, the sick leave periods given by treating doctors were endorsed. 30.Chu appeals against such assessment. 31.Orthopedics experts Dr Wong See Hoi for Chu and Dr Lau Chi Yuen for East Asia produced a joint report dated 16 November 2017. 32.Physical examination of Chu by both doctors on 10 October 2017 showed that everything was normal except Chu only performed 4/5 squatting said to be limited by pain and the range of movement of the back was slightly less than normal, again said to be limited by pain. 33.Both doctors agreed that the diagnosis was soft tissue injury to left heel and back. Dr Lau further opined that it was a minor type of injury as evidenced by:-
34.Both doctors opined that Chu has a satisfactory recovery. Dr Lau further opined that residual pain from his left heel and back would be rather minimal. 35.Dr Wong opined that Chu suffered from 2-3% whole person impairment (“WPI”) due to his spine condition and 1% WPI due to lower extremity and said that therefore the loss of earning capacity was recommended by him as 3 to 4%. Dr Lau opined 0.5% WPI for the back condition and 0.25% for the heel and assessed loss of earning capacity to be 0.75%. 36.Looking at the respective doctors’ opinion as a whole, I prefer Dr Lau’s opinion which took into account also the matters set out in paragraph 33 above. 37.I am also swayed by the fact that Chu was able to work until 11 pm at the day of the Accident and that he defaulted physiotherapy so many times during a period when he was given sick leave. Had the pain then been as severe, one would expect Chu not to default, in any case not as much. In any event, I am not persuaded by Dr Wong’s opinion that the review by the Assessment Board in Form 9 ought to be overturned. 38.I dismiss Chu’s appeal. EC Claim - quantum 39.Compensation under section 9:-
40.Compensation under section 10 is assessed at: HK$20,000 x 161/30 days x 4/5 = HK$85,866. 41.In respect of medical expenses under section 10A, I award the sum HK$2,015 as claimed. 42.The total compensation awarded under EC Claim is HK$116,681. PI Action – discussion on liability Was East Asia negligent? Was Chu wholly or contributorily negligent? 43.Having found in favour of Chu above on the issues pertaining to liability of the EC Claim, the outstanding issue regarding liability in the PI Action is whether East Asia has been negligent and whether Chu was wholly or contributorily negligent. 44.Mr Poon in opening Chu’s case summarizes that East Asia was allegedly negligent in:-
45.East Asia’s point in defence is this. It was self-evidently clear, particularly to a porter as experienced as Chu, that it was most inadvisable if not impossible for Chu to manually carry the Wardrobe down 7 floors of stairs by himself. Since there were altogether 4 porters present that day (Chu, Tsang, 簡朗and Chan Tat Shing), the task of carrying the Wardrobe down the stairs should have been performed by 2 porters. The decision so to do should have been so obvious and simple that it was reasonable for East Asia to leave it to the porter to decide at the scene, such that East Asia should not be faulted for having provided no training about it or no instruction or supervision. It is also East Asia’s submission that had the task been performed by Chu with another porter, there would have been little risk to safety and there would have been no need for the provision of such protective equipment to ensure reasonable safety. 46.In his witness statements, Chu just said simply that he carried the Wardrobe on his back. In evidence he explains and demonstrates how he carried the Wardrobe on his back : with the 4 feet x 2 feet side of the Wardrobe touching his back, both of his arms bended back so that his hands could grab the lower corners of the Wardrobe on both sides to hold it close to his body, he then leaned his back forward to shift the weight of the Wardrobe forward onto his back; and by this method he carried it down the stairs. 47.One can envisage, and it is really a matter of simple physics, that in so carrying, the Wardrobe’s center of gravity would be quite far away from, rather than close to, Chu’s body thereby exerting quite some strain on his back, shoulders, arms and hands, to carry it as well as to to stabilize it as the far side of the Wardrobe was 3½ feet away from Chu’s back. As demonstrated by Chu and Chan at trial, Chu’s back had to lean very much forward to keep the weight of the Wardrobe on his back; and in so doing, he had also to be mindful that the far upper corner of the Wardrobe would not bump into the ceiling of the stairs along the way. 48.As repeatedly stressed by Chan at trial, it was most inadvisable, if not impossible, so to carry the Wardrobe alone, although he agrees that if one has to carry it by just oneself, that is the best way to do it. 49.Chan gives evidence and demonstrates how the Wardrobe could be easily carried by 2 porters. The one at the front would face forward, carry the Wardrobe on his back with the 4 feet x 2 feet side touching his back, bend his arms backward to hold onto the lower corners of the Wardrobe on both sides. The porter at the back would hold the Wardrobe at points where he had a good handle. Chan explains that when carrying the Wardrobe down the stairs in this manner, the weight was shared with its majority, about 70%, carried by the one at the front. When descending the stairs, the porter at the back would try to keep his side of the Wardrobe close to ground so that the whole weight of the Wardrobe would not fall or be pushed onto the porter at front. By this method, the back of the porter at front did not need to bend as much and the upper part of the Wardrobe would not bump into the ceiling of the stairs. I think it is very evident that it would have been easier and safer to carry the Wardrobe downstairs by this 2-porter method. Herein below, I will refer to this method of carrying the Wardrobe as “the 2-porter method”. 50.Importantly, Chan’s evidence is that this 2-porter method of carrying a furniture is (and was at the time of the Accident) very usual and used by porters day in day out. Chu does not dispute these; and I so find. 51.As said, East Asia’s submission essentially is that very clearly Chu ought to have carried the Wardrobe down the stairs by the 2-porter method, and that that decision was a straight forward one that has to be frequently taken on site and was natural and reasonable that it should be left to the employee on the spot. 52.In Cheng Lung Fong v Mitoyo Hong Kong Limited HCPI 63/2007, A Cheung J (as he then was) explained the principle thus[5]:-
53.In that case, the plaintiff employee injured her back while mopping the cashier area of a restaurant which was a small cramped area with sundry items placed in it, such as stools, a litter box and other boxes. Applying the above principle, the learned judge there, pointing out that the plaintiff was an experienced worker and that prior instructions would only be on general matters and matters of common sense and it would be unrealistic to expect the employer to give frequent specific instructions on how she mopped, held that it should be left to her as to how to mop the cashier area and therefore the employer was not to be blamed for the injury resulted from her choice. This court finds the learned judge’s analysis in that case of good guidance. 54.Mr Poon submits that the Wardrobe is a heavy and bulky item and carrying it downstairs should not be considered a simple task. I have no difficulty in agreeing with that submission as a general statement. However, that does not encapsulate the issue on the facts of this case. This case is not simply about a porter carrying a heavy and bulky item and then get injured. As explained, it is common ground that Chu has used the best method to carry the Wardrobe, if he was to carry it by himself alone, but that there was available a common, well known, well used and safer method – namely, the 2-porter method. And we are concerned with an experienced porter who were well versed with these methods. The question in this case therefore is whether the decision to carry the Wardrobe alone or by the 2-porter method a simple and straight forward one that in the circumstances it is natural and reasonable that it should be left to Chu on the spot. 55.I have said that I found it easier and safer to use the 2-porter method as compared to carrying the Wardrobe by one person alone. On having been explained by Chu and Chan and having seen their demonstrations, I am impressed with how much easier and how much safer the task would have been if it were done by the 2-porter method, such that I accept, as stressed by Chan, that the decision obviously ought always to be using the 2-porter method unless it was so clear that the furniture could be carried safely by one alone. In my view, it is unrealistic to expect the employer to give any prior specific instructions in this regard, given sizes, dimensions, total weight and the distribution of weight and the porter’s own strength and such are varying factors. Like in Cheng Lung Fong, any prior instructions would only have been general and on matters of common sense – such as I would think, use the 2-porter method when in doubt. Moreover, this decision whether to carry an item by one porter or two or even three are decisions that need to be frequently made on the spot. As said more than once, Chu is indisputably an experienced porter who were familiar with the carrying methods. In the circumstances, I agree with East Asia that in the present case, it was natural and reasonable that the decision should be left to Chu on the spot. 56.I should highlight at this juncture that in relation to the complaint that there was not enough man-power, it was not even suggested in the witness statements of Chu that it was so, not to mention that there were no factual matters spoken to there to prove it. Rather, it will be recalled that it is Chu’s evidence that he and Tsang called for and waited from noon to 4 to 5 pm that day until 2 more porters arrived before they began the Moving Job. This is thus not a case where there was not enough man-power to employ the 2-porter method. 57.In his witness statement[6], Chu very briefly explained why the Wardrobe was not carried by 2 porters, thus:-
58.I note by this Chu is saying that the staircase was very narrow as to make it not suitable, and not impossible, for 2 porters to carry the Wardrobe. It was not explained why it was not suitable, nor was any evidence proffered prior to trial, whether by way of photographs or witness statement of one who has actually taken the measurements, as to the dimensions of the staircase, which clearly is such an important piece of information. In evidence and only when pressed, he estimates that the staircase was about 4 feet wide and cannot give an estimate as to length. 59.If the 2-porter method was used, the total measurements of the 2 porters and the Wardrobe would be about 2 feet in width and 6½ feet in length (3½ feet for the Wardrobe and say 1½ feet for each porter). It seems to this court that such measurements could fit into the staircase, even if one is to believe Chu’s estimated width of about 4 feet. 60.When pressed, Chu then says that there was not enough room to make the turn from the stairs onto the landing and then onto the next flight of stairs. If the staircase was about 4 feet wide, the landing would be about 8 feet in length, even though its width is not known. Considering the measurements, there is no reason why there was not enough room to make the turn. Chu then adds there were sundry items on the landings obstructing the turn. When further pressed, he is not able to give any details or descriptions as to what those sundry items were, save mentioning hesitantly that they might have been rubbish bins. If these rubbish bins did obstruct the staircase, I would be very surprised if the 4 porters did not remove them, say to the corridor, to make clear the way to make the Moving Job fast and efficient; after all the 4 porters would be using those stairs for many up and down trips for the next 4 hours (the Moving Job lasted from about 4 to 5 pm until at least 8 pm when the Accident occurred). There is no explanation by Chu why they had not done so. 61.I also note that Chu has not mentioned any attempts made to try to carry the Wardrobe by the 2-porter method. If he did have in mind the option of using the 2-porter method but was somehow hindered by the limited space to do so, one would expect Chu and the others to at least try to see if the 2-porter method could fit through before surrendering to the more difficult method. However, there has been no mention that Chu had tried to enlist the other porters to help or to make such an attempt. 62.Along the way of so explaining, Chu also vaguely mentions that he had discussed with Tsang who agreed to Chu carrying it down the stairs by himself. 63.This allegation about the stairs being obstructed and about this vague discussion with Tsang have not been hitherto mentioned, whether in Chu’s witness statements or at all. My impression is that they are but afterthoughts made up along the way while in the witness stand. 64.These new allegations are of course departures from the explanation given and maintained all these times in his witness statements, which are both dated 30 October 2017. 65.Considering all of the above in the round and having listened to and observed Chu’s demeanor closely when he was giving evidence on these matters, I find his evidence explaining why the 2-porter method could not be used, including these new allegations, incredible and unreliable. I do not believe or accept them. 66.For completeness, I would also state that I accept East Asia’s submission that had the 2-porter method been used, there would have been little risk such that no assessment was reasonably required and there would also have been no need for the provision of protective gears to make the task reasonably safe. I therefore hold that East Asia also has not been negligent in those regards. 67.In the result, I do not find East Asia negligent and would dismiss Chu’s PI Action. PI Action - quantum 68.Having dismissed it, I would give my assessment on quantum only briefly for the sake of completeness. PSLA 69.Mr Poon cites a number of cases in his submissions on PSLA awards ranging from HK$150,000 to HK$300,000 and claims HK$250,000 under this head. I do not find the circumstances of those cases comparable. I have already referred to Chu’s injury and the experts’ opinion above. As said, I prefer the opinion of Dr Lau who opined that the back and heel soft tissue injuries were minor ones. East Asia in its Answer to Revised Statement of Damages accepts an award of HK$120,000 as fair, which I would endorse and so award if liability were established. Pre-trial loss of earnings 70.As mentioned, the treating doctors gave Chu sick leave totalling 161 days. This was endorsed by Dr Wong for Chu and by MAB in Form 9. Dr Lau opined a maximum of 4 months as reasonable. As the difference is only a month, I am not prepared to depart from the consensus opinion of the treating doctors, MAB and Dr Wong. I would have assessed sick leave at 161 days. 71.Mr Poon also submits that it is reasonable to award Chu a further 10 months’ earnings plus MPF, totalling HK$210,000, from mid June 2015 to mid April 2016, as loss during a job seeking period. He has not cited any authority to substantiate. The court would expect a claimant to mitigate his/her loss reasonably by start seeking a job when his/her recovery is well in progress. There is no evidence of such effort by Chu. I would have declined to make this award. 72.Chu also claims loss of earnings, totalling HK$79,800, being the difference in what he earned when employed by East Asia (HK$20,000 a month) and the actual amount he earned from 2 jobs held between 20 April 2016 to 30 June 2017. 20 April 2016 would have been 10 months after his sick leave expired and more than 6 months after he was first assessed by the MAB on 5 November 2015. By that time, Chu might as well have recovered to enable him to take a manual job that could have fetched more. There is no evidence in support save that he had actually took those jobs which earned less. Again, I would not have inclined to award this sum. 73.Therefore, his loss of pre-trial earnings including MPF would have been HK$20,000 x 161/30 x 1.05 = HK$112,700. Loss of earning capacity 74.In the circumstances, I would not have thought this award appropriate. Special damages 75.Mr Poon submits that a ballpark total of HK$20,000 for medical expenses, travelling expenses and tonic food is reasonable. 76.We have seen that the claimed medical expenses total to HK$2,015, which I would have awarded. I would only award altogether HK$4,000 for reasonable travel expenses and tonic food, considering that Chu had defaulted 11 out of 19 physiotherapy appointments. Post-trial expenses 77.Mr Poon also invites the court to make an award at HK$5,000 on the basis that Chu may require additional medical treatment, travel expenses and tonic food. This is simply a conjecture without any evidentiary basis from the experts to justify this. I would have rejected this claim. Total award 78.If liability were established, I would have awarded as damages a total sum of HK$238,715. Chu would have been entitled to the usual interest as well. Disposal 79.I hold that East Asia is liable to pay Chu employees’ compensation in the total sum of HK$116,681. As no compensation has been paid to Chu, I will award interest on the said sum at half judgment rate from the date of the Accident to the date of this judgment and then after at judgment rate until full payment. 80.I dismiss the PI Action. 81.In the result, each party wins one set of proceedings. Some of the issues are overlapped in these two sets of proceedings though I note that different sets of witness statements were respectively filed, with a lot of common contents. The joint orthopaedics expert report was filed in relation to both sets of proceedings, but Chu loses not only in the PI Action but also the section 18 appeal in the EC Claim. In the round and provisionally, I think the fair and appropriate costs order to make is no order as to the costs of both sets of proceedings save that Chu do pay East Asia its costs of and incidental to the joint orthopaedics expert report, and Chu’s own costs be taxed in accordance with Legal Aid Regulations. I so order on nisi basis which will be made absolute unless any party seeks to vary it within the next 14 days. 82.If East Asia requires translation of this judgment, it may liaise with my clerk for a court translator to interpret it at a mutually convenient time. 83.I thank Mr Poon and Mr Chan for the assistance rendered.
Mr Edward Poon, instructed by Huen & Partners, assigned by the Director of Legal Aid, for the applicant/ plaintiff The respondent/defendant represented by its director, Mr Chan Chun Leung | ||||||||||||||||||||||||||||||
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