Lam Kai Kwong v. Up Creation Ltd and Another

HCPI 222/2019

[2023] HKCFI 3353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 222 OF 2019

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D E C I S I O N

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1.The parties disagree on whether or not expert evidence from engineering and industrial safety expert should be obtained for the purpose of the issue of liability and causation. Upon their joint written submissions, this court now rules on the matter.

The accident

2.The accident happened at the Tai Kok Tsui building site in Kowloon (“the Site”) in the afternoon of 17 January 2017. At the time, the plaintiff (“Lam”) was assigned to work with his co-worker, Mr Chau Kim Sang (“Chau”), both under the employ of the 1^st defendant (“Up Creation”). The 2^nd defendant (“Minmetals Condo”) was the principal contractor. Where appropriate, the defendants are collectively referred to as such below.

3.At the time, Lam and Chau were standing on the scaffolding platform outside the balcony of the 17^th Floor of the building site. Their job was to re-install the louvre panels onto the metal mullions at the external wall of that part of the building. Lam was standing at a position slightly higher than Chau. Chau was responsible for using a portable electric drill to drill holes on the metal mullions for the metallic anchors and bolts for affixing the louvre panels, and Lam was responsible for passing the panels to Chau. The electric drill and the drill bit were provided by Up Creation. The claim is that in the course of the drilling work by Chau, the drill bit of the electric drill broke and a tiny metal fragment from the drill bit shot up and penetrated Lams’ left eye. The fragment was subsequently removed from the eye by operation.

The parties’ respective cases

4.In the amended statement of claim, over 30 particulars of alleged breach of duties on the part of Up Creation are pleaded. The substantial overlap and repetition are obvious. In the light of how the accident is said to have happened, the essential contentions in respect of the alleged failure of Up Creation to put in place a safe system of work at the time are really that to provide (i) appropriate tool and equipment as well as (ii) safety warning and protective equipment necessary for the work in question. Insofar as (i) is concerned, the specific allegation is that the drill bit was used, worn and/or inferior in quality for the purpose of the work in question.

5.In defence, the defendants did not admit that the fragment that penetrated into Lam’s eye came from the broken drill bit. In any event, they say that the workers were provided with the portable electric drills with new drill bits, which were quality and new bits suitable for the work. As the drill bits were consumable items, the workers would be provided with at least an extra new drill bit for replacement of the worn out bit without suspending their work. Otherwise, the workers could still obtain replacement drill bits from the site foreman or the on-site toolbox by themselves. The defendants further contend that the breaking of the drill bit causing a fragment of it to shoot up to injure the worker in the course of such work was not foreseeable in the circumstances. As an alternative defence, they also plead contributory negligence.

6.In reply, Lam contends that the drill bits which Up Creation provided to him and Chau for work at the time were used and worn instead of quality or new ones.

7.The parties have already obtained a joint report from their respective ophthalmological experts dated 20 April 2020 on the issues of liability and causation. By her order dated 17 January 2022 (“the 17/1/2022 Order”), Hon Marlene Ng J directed, amongst other things, for a further joint report from these experts to clarify specific issues of liability and causation, which the experts did by their further joint report dated 22 February 2022. In respect of those issues, the experts are of the following joint opinion:

(1)  It is beyond doubt that Lam’s left eye had suffered a penetrating injury by a metallic foreign body on the date of the accident. The foreign body could have entered the eye in its front at any possible directions and angles above, below or at the same level. It is however impossible in retrospect to deduce the exact direction and angle of penetration.

(2)  The left eye injury suffered by Lam was a penetrating one, not an abrasive one.

(3)  The left eye injury must have been a high velocity penetrating injury, which commonly happens when a small metal fragment with high velocity is created in the process of drilling metal with motorized drill and during hammering work using hammer and chisel.

(4)  It is almost impossible for a metallic foreign body to penetrate the eye due to rubbing.

(5)  It is extremely unlikely for a tiny foreign body to be blown into the eye by wind resulting in a penetrating globe injury.

(6)  According to the circumstances described by Lam, it was very unlikely that causes other than the metal drilling procedure could account for his left eye injury.

8.Essentially, the ophthalmological experts’ joint opinion serves to eliminate any other possible cause of the accident than the likelihood of the fragment coming from the drill bit when it broke in the course of the drilling at the time, and that of the same penetrating into Lam’s eye and thus causing his injury.

9.By letter dated 25 May 2022, the defendants also confirmed that they no longer dispute that the fragment that penetrated into and subsequently removed by operation from Lam’s left eye on the day came from the broken drill bit in question in the accident. As those acting for Lam submits for the present purpose, what remains in dispute is whether the defendants should be liable for such an accident, which, as pleaded, had to do with the alleged condition and/or the quality of the drill bit in question for the work in question.

10.In this respect, Lam has given the following further and better particulars of his pleaded case:

(1)  The drill bits were not replaced at regular intervals, and there was wear and tear after use by the workers. In the case of the broken drill bit, Lam has no knowledge of the number of hours it had been in use or the frequency or average duration of use prior to its being provided to him.

(2)  The defendants followed up with request for further and better particulars. In his answers, Lam said that the drill bit in question came from one of the toolboxes which he and Chau found in the storeroom on the day. He has no recollection of the extent to which the drill bit in question had been used or the number of hours or frequency or average duration of its use by then. The drill bit in question just broke after he and Chau had taken turn to use it on the day immediately prior to the accident.

(3)  As to what Lam means by the drill bit in question being “worn”, Lam referred to his observation that the point angle at the tip and the cutting lip on the body of the drill showed wear and tear, and was not sharp like brand new drill bits. It also took longer time to drill holes when the bit became worn.

(4)  As to what Lam means by the drill bit in question being of “inferior quality”, Lam referred to his observation that after drilling for a few times, the surface of the drill bit showed severe wear and tear, and it became less effective and took longer time to drill through.

11.Insofar as evidence is concerned, apart from himself, Lam has arranged Mr Wong Yi Leung (“Wong YL”) to testify for him. Wong YL introduced Lam to work at the Site. In respect of the system of work at the material time, they referred in their witness statements to the alleged absence of safety training and instruction from the defendants. They also stated the lack of provision of protection equipment at work such as goggles.

12.The above evidence of Lam and Wong is contradicted by that of the witnesses for the defendants, namely Mr Lam Hak Bun, Mr Lai Chun, Chau and Wong Hoi Yin (“Wong HY”). Wong HY was the supervisor/foreman of Up Creation at the material time. Regarding the drill bits provided by the employer, Wong HY referred to Lam’s case that (i) the drill bits provided were worn or damaged and (ii) there was no improvement despite complaint by Lam and Wong YL that the drill bits became worn very quickly. Wong HY acknowledged that the drill bits were consumable and subject to wear and tear. However, it was stated that the employer would stock up new drill bits for use at the site. Workers would be provided with at least a couple of drill bits, and the rest could be obtained at the site or the toolbox at the office. Wong HY would check the stock of drill bits and replenish whenever necessary. If necessary, drill bits would be purchased from nearly retailers. There had been no complaint from the workers about the durability or quality of the drill bits or that the drill bits broke in the course of work.

The expert evidence proposed

13.By the 17/1/2022 Order, Hon Marlene Ng J also directed the parties to report on whether they would require to adduce expert evidence on liability and causation from further experts of area(s) of expertise other than ophthalmology, and if yes, to seek the necessary directions.

14.At the checklist review hearing before this court on 21 July 2022, those acting for Lam indicated that counsel advice was being sought as to whether further expert evidence on liability should be obtained in answer to the question directed by Hon Marlene Ng J. This court specifically reminded the parties that the question must be approached with focus on the necessity and relevance of the discipline of the further expert evidence in the circumstances of the case and in accordance with the parties’ pleaded cases as to how the accident happened and how the defendants are said to be in breach of their duties. These must now be viewed on the basis of the pleaded case (further and better particulars mentioned above included), the evidence as per the witness statements and the further ophthalmological expert report mentioned above.

15.The deliberation on the part of Lam took much time until he indicated in his questionnaire filed in May 2023 his intention to obtain expert evidence on liability and causation from an engineering and industrial safety specialist. That was however not shared by the defendants.

16.What Lam intends to seek from the engineering and industrial safety specialist is his opinion on the following issues:

(1)  Are there different types of drill bits for different material and different usage (domestic and business use)?

(2)  If there are different types of drill bit, what type should be used for drilling holes into steel frames in construction business?

(3)  In normal usage of drill bits, if the drill bits are new and of good quality, what are the chance that the drill bit would break in the course of use?

(4)  In normal usage of drill bits, if the drill bits are used, worn down and/or of inferior quality, what are the chance that the drill bit would break in the course of use?

(5)  If the answer to (4) is yes, then how significant is the risk of it breaking and what are the factors that would cause it to break?

(6)  Is there any risk to use used, worn down and/or of inferior quality drill bits for construction business use?

(7)  If there are risks, then what are the risks?

(8)  If there are risks in using used, worn down and/or inferior drill bits, then what are the cause/causes of such risk?

(9)  Would a combination of these factors of used, worn down and/or of inferior quality, increase the risk than if it is just one of those factors?

(10)  Any other factor or possibility that cause the drill bit to break with tiny metal fragment shot up into the air?

Discussion

17.By their joint letter dated 18 August 2023 (the “Joint Letter”), the parties stated their disagreement and respective stance as well as submissions for this court’s ruling.

18.The principles are often cited. For the present purpose, Lam refers to Lau Kwai Yin v Tack Hsin Restaurant (London) Limited & Ors, HCPI 927/2013 (23 December 2015) while the defendants refer to Li Siu Ping & Anor v Perfecta Dyeing, Printing & Weaving Works Ltd, DCPI 901/2006 (18 July 2007) and Ip Sau Lin v Hospital Authority DCEC 584/2007 (9 April 2009). At the end, the court will always look at the relevance and necessity of the proposed expert evidence. The value of the proposed expert evidence in terms of whether or not it will be assistance to the court in coming to an adequately informed basis for making findings in respect of the questions before it is key: see Hong Kong Civil Procedure 2023 (Vol 1) at §J1/58/2.

19.In the circumstances of the case, it is quite clear to me that the basis currently framed for allowing the expert evidence proposed by Lam is not sound.

20.Issues (1) and (2) above do not arise out of the parties’ cases which the court will have to determine. The common ground is that the electric drill and the drill bits were provided by Up Creation, which therefore assumed the duty to provide the same as reasonably adequate and safe for use by its employees for the work in question. The parties have put forward their respective cases and evidence in this respect, and it will be for the court to make findings in respect of such dispute as a matter of fact.

21.Issues (3), (4) and (5) are not ingenuously framed when referring to “normal” use, which is ambiguous particularly in the context of the possible use of the electric drill in different areas of work on different materials in a construction site. More importantly, it is futile to ask the proposed expert to give his opinion on the probability of the breaking of the drill bits in the so-called “normal” use by reference to their being of used and worn condition and/or inferior quality, which are all factual matters of degrees. Any opinion of the proposed expert such as that of not ruling out the possibility of breakage if the drill bits were of such condition and quality to a certain degree will not assist the court as the same tells nothing more than common sense.

22.It is unclear what is expected from the proposed expert on issues (6) and (7). More importantly, issues (6), (7), (8) and (9) are somehow removed from the focus, namely the risk of the use of the used, worn and inferior quality drill bits, including the drill bit in question (which is disputed), breaking in the course of work and causing fragment from the drill bit in question to injure the worker at work (which is undisputed). Any other risk of using drill bits of such condition and quality which may or may not be identified by the proposed expert is hardly relevant.

23.Issue (10) is hardly justifiable. It is common ground that the drill bit in question broke in the course of the drilling, and the fragment from the broken bit shot up and injured Lam’s eye. Factors such as wind and rubbing of the eye by Lam were all ruled out by the joint ophthalmological experts in their supplementary expert report mentioned above. The experts also jointly concluded that it was very unlikely that the fragment came to penetrate the eye of Lam other than as a result of the drilling work and the breaking of the drill bit. The proposed expert, being engineering and industrial safety specialist, may only be expected to be in a position to consider issue (10) from the perspectives of the elements of the above background, namely (i) the drill bit in question, (ii) the material being drilled and (iii) the manner in which the material was being drilled.

24.Regarding the drill bits, the dispute lies not only in whether the drill bits, including the one in question, were used, worn or of inferior quality but also whether stock of adequate new drill bits for replacement was kept and provided. This is a factual dispute which the court will have to determine and make finding on the basis of the evidence summarized above.

25.Whether or not the drill bit in question ought to have been used for the material being drilled, which has never been raised as an issue, it would have remained a matter for the defendants as their duty to provide a safe system of work including reasonable adequate and safe equipment for the work in question.

26.Likewise, the manner in which Chau was using the drill at the time has never been raised as an issue. Whatever it may be said in this respect as a matter of fact or as a matter of expert opinion which may attribute responsibility for the accident to Chau instead of the condition of the drill bit, Up Creation would have remained answerable on the basis of its duty to provide competent worker to work with Lam and/or vicarious liability for Chau’s negligence.

27.In his submission, Lam seeks to justify the proposed expert evidence as relevant to explaining the cause of the accident. However, none of the 10 issues sought to be addressed by the expert evidence from the proposed engineering and industrial safety specialist, currently framed, are matters calling for such expert evidence in terms of necessity, relevance or value.

28.When the intention to adduce further expert evidence in discipline(s) other than ophthalmology was indicated at the checklist review hearing back in July 2022, this court specifically reminded the parties to focus on the questions arising out of the issues raised by the parties in respect of liability and causation that need to be determined by the court, and hence the relevant discipline(s) of expert. By then, whether or not the condition and quality of the make of the drill bit in question was as alleged was fairly and squarely the question to be determined. Yet both the questions currently framed to be addressed by the proposed expert and the relevance of the discipline of the proposed expert put forward by Lam simply fail to tie in with such question to be determined. It is for Lam as the plaintiff to run his case and to prove his claim. I therefore say no more.

29.What may be added is that given the manner in which the accident happened, whether or not the drill bit in question was of the condition or quality as alleged, the liability of the defendants also turns on the provision of protection equipment such as goggles at work. As mentioned, this is a factual dispute addressed by the pleaded case and evidence of the witnesses mentioned above, and will be determined by the court as a matter of fact without expert evidence.

Conclusion

30.Lam’s application for leave to adduce the proposed expert evidence from the engineering and industrial safety specialist is refused.

31.I make a nisi order that the costs of and occasioned by such application, including the Joint Letter, be to the defendants in any event, to be taxed, if not agreed. In the absence of application to vary within 14 days, the costs order will become absolute without further order of the court. The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Ms HY Kwan, of Yu & Associates, assigned by Director of Legal Aid, for the plaintiff

Mr Lam Wai Ming Elvin, of W H Chik & Co, for the 1^st and 2^nd defendants