Lo Kwok Kit Sam v. Leung Kwok Hung t/a Kaiser (M&E) Decoration Engineering Co and Another

DCPI 983/2020

[2025] HKDC 495

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 983 OF 2020

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JUDGMENT

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Introduction

1.The 2^nd Defendant (“Shinryo”) was the main contractor of the construction works at a construction site, and the 1^st Defendant (“Kaiser”) was a sub-contractor of Shinryo. The Plaintiff (“Mr Lo”) was an employee of Kaiser.

2.On 18 January 2018, Mr Lo was injured whilst working in the construction site. In this action, Mr Lo claimed against Kaiser and Shinryo for damages in relation to the incident.

Background

3.Mr Lo was born on 10 August 1961 and received education up to the secondary level. He previously took up employment in various industries including logistics, warehousing, catering and renovation.

4.He was registered as a construction worker with the Construction Industry Council and was issued the Construction Industry Safety Training Certificate. He has completed the Registered Minor Works Contractor (Individual) Class III Minor Works Training Course offered by the Hong Kong Institute of Construction.

5.Prior to the incident, Mr Lo had worked as an electrician for about five years. He would work for different employers in different construction sites as and when required, and his remuneration would usually be calculated on a daily wage basis.

6.Shinryo was the main contractor of the construction works in the construction site at SRL816C-West Kowloon Terminus (“Site”), with Kaiser being a sub-contractor. Since 12 January 2018, Mr Lo started working for Kaiser as an electrician to carry out electrical installation works in the Site.

7.At around 3:30 pm on 18 January 2018, Mr Lo was assigned to work inside a room at the basement of the Site to install electrical conduit onto the wall, which was about three to four metres above the ground. He was provided with a ladder to carry out the work, and he claimed to have slipped and suffered injury in the right knee while climbing down the ladder.

Issues in Dispute

8.Mr Lo claimed that there were many pipes with a diameter of about three feet that were fixed horizontally on the floor of the room. He had to walk on those pipes when he worked in that room. When he climbed down the ladder, he had to step onto a pipe that was placed on the floor and he slipped on the slippery surface of the pipe. He lost balance and fell onto the pipe.

9.Mr Lo’s complaints about Kaiser and Shinryo’s negligence and breach of duties, as pleaded in his Amended Statement of Claim, boiled down to essentially one allegation, ie they should not have caused or permitted water, oil or other slippery substances to be present on the surface of the pipe, which posed as a danger to him. He was also not forewarned about the danger presented by the slippery surface of the pipe.

10.Mr Lo has received employees’ compensation in the sum of $456,010.80. Mr Simon Wong, counsel for Kaiser and Shinryo who appeared with Ms Sabina Sui, informed me that the employees’ compensation was paid by way of settlement. While Kaiser and Shinryo did not dispute that Mr Lo suffered workplace injuries on 18 January 2018, they did not admit Mr Lo’s account of the incident and how he allegedly suffered the injuries.

11.In their Defence, Kaiser and Shinryo denied the existence of the pipes in the room. They claimed that there was sufficient even surface inside the room for Mr Lo to step on when he climbed down the ladder. They carried out regular safety patrols and inspections. Mr Lo was provided with anti-slippery shoes and he was specifically instructed that when climbing down a ladder, he must maintain a three-point contact with the ladder (ie two hands plus one foot or one hand plus two feet) until he reached the ground or a stable platform. In any event, they contended that climbing down a ladder was simple and not complicated, and a prudent employer could entrust the employee with doing it reasonably safely.

12.In the event that they were held to be negligent, Kaiser and Shinryo argued that Mr Lo was also contributorily negligent in that he should not have stepped onto the alleged slippery pipe and should have maintained his balance by sticking to the three-point contact method.

13.In view of the aforesaid pleaded cases of the parties, there are the following issues to be resolved:-

(1)  Could Mr Lo prove that he suffered his injuries in the manner as he pleaded?

(2)  If the answer to (1) is in the affirmative, were Kaiser and/or Shinryo negligent and/or in breach of duties?

(3)  If the answer to (2) is in the affirmative, was Mr Lo contributorily negligent?

(4)  What is the quantum of damages?

Credibility of Witnesses

14.In resolving factual disputes, I have regard to the following well-established principles:-

(1)  Where there is a host of contemporaneous documentation, such documentation must assume a special importance. The truth can best be tested by reference to contemporaneous documentation where it exists, as well as to inherent improbabilities having regard to all the facts that are known: Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439 at §135.

(2)  In assessing the credibility of a party’s case on a particular issue, the court should take into consideration the following: whether the party’s case is inherently plausible or implausible; whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable; where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, which is relevant to the assessment of his overall credibility; and the demeanour of the witnesses: Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §53.

15.In this case, other than Mr Lo himself, nobody witnessed how the incident happened. Essentially, he was put to proof of how he allegedly suffered the injuries, so it is important to assess his credibility. With regret, I find Mr Lo to be a wholly incredible witness and I observe that he would be ready to lie on oath and in court in order to advance his cause. Examples abound.

16.Mr Lo has obviously lied about his post-incident employment:-

(1)  In his first witness statement dated 1 December 2020, he deposed that after the incident, he was involved in only two employment or self-employment. First, he once got engaged in the business of exporting powdered formula across the border to Shenzhen, Mainland China. Second, he took care of his former wife (whom he divorced in 2011) by buying groceries for her and doing housework for her.

(2)  In his two supplemental witness statements dated 18 November 2021 and 26 April 2023 respectively, and in his Revised Statement of Special and General Damages dated 21 May 2021, he did not mention any other employment after the incident.

(3)  However, during cross examination, he admitted that from February 2018 onwards, he would from time to time help people take their mobile phones to Shenzhen for repairs, and he would charge around $200 for each phone. He would also purchase toner cartridges in Shenzhen and resell them in Hong Kong for a profit of around $300 for one cartridge. Such evidence is also contradictory with his answers to interrogatories dated 12 July 2021, where he deposed that during all those trips to Mainland China between February 2018 and January 2020, he was engaged in the business of selling powdered formula only once. On other visits, he was either picking up online purchases for his own consumption or visiting his current wife’s family.

(4)  He has disclosed through his solicitors’ letter dated 18 May 2023 that he received income from temporary casual jobs only on three occasions on 7 July 2021, 6 August 2021 and 21 March 2022. Nevertheless, during cross examination, he admitted that after the incident he worked as a cashier in a Caltex gas station in Mount Davis for three to four months. He also took up jobs as a security guard in various places including Hotel Conrad in Admiralty. Further, he had worked in two finance companies.

17.Relatedly, Mr Lo lied about the purposes of his various visits to Mainland China after the incident:-

(1)  According to Mr Lo’s statement of travel records issued by the Immigration Department on 1 June 2021, in the period between 18 January 2018 and 17 May 2021, he left Hong Kong for Mainland China for 27 times.

(2)  In his answers to interrogatories, Mr Lo deposed that on the occasion on 21 May 2019 he was selling powdered formula to buyers in Shenzhen. On 20 other occasions where he returned to Hong Kong on the same day, he was traveling to Shenzhen to pick up online purchases for his own use or consumption.

(3)  As noted above, Mr Lo’s answer was not true because he would in fact also purchase toner cartridges in Shenzhen for the purpose of reselling them, and he would take other people’s phones for repair there. Moreover, during cross examination, he tried to explain his travels to Shenzhen with references to his online purchase orders, but when pointed to him that the dates of various purchase orders were not consistent with the dates of his travels, he had to admit that those online purchases were irrelevant.

18.Mr Lo has lied about the nature and sources of various deposits into his bank account:-

(1)  Mr Lo has disclosed his passbook records of his account in the Bank of Communications. Kaiser and Shinryo’s solicitors asked Mr Lo to account for various deposits.

(2)  In his first witness statement, Mr Lo explained that most deposits with the transaction code “SAC” were subsidies issued by the government under the individual-based work incentive transport subsidy scheme.

(3)  During cross examination, Mr Lo accepted that the said subsidy would at most be $600 a month. However, all of the deposits with the transaction code “SAC” were in sums larger than $600, some being significantly larger. For instance, on 13 June 2018, he received an “SAC” deposit of $6,600, followed by two “SAC” deposits of $2,000 and $1,200 on 5 July 2018 and 16 July 2018. Mr Lo was pressed to accept that those were not transport subsidies, and he said that maybe those were his wages or transfers from some other people. On 15 July 2019, he received another “SAC” deposit of $6,000, and when cross examined he had to accept it to be his wages.

(4)  His testimony in court did not only contradict his witness statement but also a previous letter issued by his solicitors. On 14 April 2023, Kaiser and Shinryo’s solicitors requested Mr Lo to explain the source and nature of the deposits again. On 27 April 2023, Mr Lo through his solicitors said that only five deposits (of $600, $2,580, $1,680, $600 and $600 respectively) were his income. On 18 May 2023, his solicitors clarified that in fact only three deposits (of $600, $2,580 and $1680 respectively) were his income. This explanation is wholly inconsistent with what Mr Lo said in court.

(5)  Furthermore, Mr Lo explained in his first witness statement that a larger number of deposits into his bank account were made by his former wife. As he would buy groceries for her and make payments first, she would repay the money to him. On top of that she would lend money to him. However, during cross examination, he said his former wife actually paid him remuneration for helping her out with the housework. He testified that his former wife would pay him $37.5 per hour and he worked for her for around 36 to 80 hours a month. Such testimony is completely different from what Mr Lo said in his witness statement and in his solicitors’ letter dated 27 April 2023 and 18 May 2023.

19.Mr Lo said his former wife lent him money but his explanation is inherently impossible and is contradicted by his former wife’s evidence:-

(1)  In his first witness statement, Mr Lo said after the incident, his former wife would lend him $12,000 a month to support his living. He repaid the principal together with interest to her in the sum of $368,625 after he received his employees’ compensation in around June 2020.

(2)  During cross examination, he said he owed his former wife a total of about $220,000. When asked why he would repay a significantly larger sum of $368,625 to her, he said he feared that he would spend all of his settlement money, so he would rather let his former wife hold the extra money on trust for him. This explanation is so inherently impossible that I have no hesitation in rejecting it. Given his financial condition and that he got remarried in 2013, there is absolutely no reason for him to ask his former wife to hold the only sizeable wealth that he had for him. Such an explanation emerged only in cross examination and was obviously made up by him on the spot.

(3)  Mr Lo called his former wife Ms Tang Po Sim as a witness, but her evidence did not corroborate his. Ms Tang said she lent $12,000 a month to Mr Lo for 29 months and the total loan principal was $348,000. They agreed that Mr Lo would pay her interest in the tune of $20,000, so eventually Mr Lo repaid her $368,625. Ms Tang’s account of the event is markedly different from that of Mr Lo.

(4)  Worse still, Ms Tang’s account was in itself fraught with loopholes that could not be explained away. She could offer no explanation why she and Mr Lo would agree on a rather awkward sum of $20,625 to be the interest payment. In her witness statement, she said she lent the money to Mr Lo in cash. During examination in chief, she changed her evidence by saying that some loan advances were paid to Mr Lo by cheques. When shown in cross examination that Mr Lo’s bank account did not record any cheque deposit of $12,000, she could not offer an answer. But in re-examination, she modified her evidence yet again by saying that some cheques were cash cheques.

20.Ms Tang’s evidence was mostly related to the financial situation of Mr Lo after the incident and had no bearing on the incident itself. In this sense her evidence is not very significant. Having said that, I still cannot help being driven to the conclusion that Mr Tang is not an honest witness:-

(1)  As noted above, Ms Tang’s account of the loans to Mr Lo was inconsistent with that of Mr Lo, and her account was in itself unbelievable.

(2)  Further, in her witness statement, while she said that after the incident Mr Lo helped her with her housework, she said nothing about having remunerated Mr Lo. In cross examination, she said she paid minimum wage to Mr Lo.

(3)  She as employer helped Mr Lo apply for transport subsidy. In the specified form that she produced, she stated that Mr Lo worked for her for 72 hours each month between July and December 2019. This is inconsistent with Mr Lo’s testimony; he said he worked for her for around 36 to 80 hours a month. Indeed it is also inconsistent with Ms Tang’s own testimony. In her examination in chief, she said Mr Lo worked for her around four times a week, or ten times a month. In cross examination, she said Mr Lo worked for her for 4.5 hours a day. Such evidence does not tally with her representation to the government that Mr Lo worked for her for 72 hours a month.

21.All in all, both Mr Lo and Ms Tang are unreliable witnesses. It can be seen from the above analysis that they made up evidence to exaggerate the financial hardship of Mr Lo after the incident and to conceal Mr Lo’s post-incident employments. What also alarmed me is that Ms Tang did not purchase labour insurance for Mr Lo and there was no written employment contract between them, which casts serious doubt on the veracity of their so-called employment relationship. That said, since this is not an issue to be resolved in this trial, and Mr Simon Wong for Kaiser and Shinryo understandably did not push the matter that far, I do not have to determine if Mr Lo and Ms Tang were conspiring to defraud the government in order for Mr Lo to obtain transport subsidies.

22.On Kaiser and Shinryo’s side, witness statements from four witnesses have been filed. Eventually, only Mr Kung Siu Kei, who was the safety officer of Shinryo at the material time, was called to testify in court. Mr Simon Wong explained to me that the case was defended on the instructions of the insurer who exercised its right of subrogation, and the insurer was unable to contact two witnesses and to secure the attendance of another witness. I think it suffices for me to disregard the witness statements of those three witnesses and I do not think it is necessary for me to draw any adverse inference against Kaiser and Shinryo for failing to tender those three witnesses for cross examination. In fact, Mr Tommy Lo, counsel for Mr Lo, has sensibly not invited me to draw any adverse inference.

23.As to Mr Kung, he did not witness the occurrence of the incident and he was not the person who compiled the accident report. He could not even tell the location where Mr Lo allegedly slipped, and the environment of the room at the time of the incident. His evidence mostly touched upon the training provided to Mr Lo and other workers and the inspections carried out by Shinryo. There is no credibility issue with Mr Kung.

Issue (1) - Occurrence of the Incident

24.As noted above, while it is not disputed that Mr Lo suffered injuries in the Site when he was working for Kaiser, Kaiser and Shinryo denied the existence of pipes in the room and put Mr Lo to strict proof of how the incident actually occurred. It is thus incumbent for Mr Lo to prove his pleaded case.

25.The importance of pleadings cannot be emphasized more:-

(1)  In Kwok Ching Wing v 21 Holdings Limited (2013) 16 HKCFAR 663 at §21, Ma CJ stated that the basic objective of pleadings was fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party so that proper preparation was made possible, and to ensure that time and effort are not expended unnecessarily on other issues. It was the pleadings that would define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses were involved, it would be the pleaded issues that define the scope of the evidence, and not the other way round. It would not be acceptable for unpleaded issues to be raised out of the evidence which was to be or had been adduced.

(2)  In Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632 at §§30-34, Chan PJ stated that pleadings were not mere formalities. They imposed a necessary discipline and were fundamental to enabling every procedural facet of the adversarial system to operate fairly. The other party was entitled to know from a clear pleading what was the entire case he had to meet so he could decide whether particulars should be sought, how he should plead in response, what discovery he was entitled to, what evidence he should adduce and what points of law should be taken.

26.More specifically relating to personal injuries cases, Ribeiro PJ said the following in Mak Kang Hoi v Ho Yuk Wah David (2007) 10 HKCFAR 552 at §102 (which itself was not a personal injuries case):-

“102. However, industrial accident cases often raise the pleading point more clearly than others. If the accident is not shown to have taken place in the way or at the placed alleged usually the plaintiff must fail. The defendant has pleaded and prepared his case to meet the case alleged and no other.”

27.The necessity for a plaintiff in a personal injuries action to prove the pleaded way the accident occurred is illustrated in Lau Ting Keung v Chan Wai Ying trading as Wai Shun Engineering Co [2019] HKCFI 992:-

(1)  The plaintiff there, a welding worker, alleged that he fell from a ladder and was injured while working in a site. The defendants did not dispute that the plaintiff fell from a ladder and injured, but they took issue with how the accident exactly took place.

(2)  The pleaded case of the plaintiff was that on one occasion when he “was climbing up to work”, he “fell off the ladder onto the floor and then lost consciousness”.

(3)  DHCJ Keith Yeung SC (as K Yeung J then was) noted that there was no evidence as to whether the plaintiff was going up or coming down from the ladder when the accident took place, and the court did not know from what height the plaintiff fell. The learned Judge went on to hold that the plaintiff failed to establish his case as framed.

28.Another illustration can be found in Wu Dip Oi formerly known as Wei Yuling v Harbour City Estates Limited [2023] HKDC 1450. The plaintiff’s case there was that she slipped on the corridor because its surface was slippery. However, in evidence she could not clearly say whether she slipped on the corridor or was tripped over and fell. DDJ Walker Sham held that the plaintiff could not discharge her burden in proving her case that she fell because the corridor was slippery.

29.In a more recent case So Kai Wing v Sino Estates Management Limited [2024] HKDC 1829, the plaintiff alleged that he slipped on the lift lobby and fell on the ground because the floor was wet. DDJ Ebony Ling found that the plaintiff did slip and fall, but she held that the plaintiff could not prove that he fell because of the wetness complained of and she dismissed the plaintiff’s claims. This is yet another demonstration of the importance for a plaintiff in a personal injuries action to prove the incident as pleaded.

30.In the present case, Mr Lo pleaded in his Amended Statement of Claim that on 18 January 2018, when he climbed down from the ladder he “stepped onto a pipe fixed horizontally on the floor, he slipped upon the slippery surface of the pipe, lost balance and fell down onto the pipe”. Among the particulars he gave regarding the negligence or breach of Kaiser and Shinryo, he pleaded the following in §6 of the Amended Statement of Claim:-

“(a) Causing or permitting water, oil or other slippery substances to be present upon the surface of the said pipe.

(b) Causing or permitting the said pipe to be or to become or to remain a danger and a trap to persons lawfully using the same.

(c) Failing to cany out any or any adequate inspections of the Site

(d) Failing to take heed of the danger of the slippery surface of the said pipe.

(e) Failing to warn the Plaintiff of the danger of the presence of the slippery surface of the said pipe.

(f) Failing to provide safe place of work;

(g) Failing to provide the Plaintiff with a safe system of work; and

(h) Exposing the Plaintiff to unnecessary risk of injury which the 1^st and/or the 2^nd Defendants ought to have known.”

31.It is clear that his pleaded case was that the cause of the incident was that the surface of the pipe on which he stepped on while climbing down the ladder was slippery. His pleaded complaint was not that the pipes were inherently dangerous and should not have been placed there, or that he should have been provided with a work platform or a safer ladder for carrying out his work. It is thus incumbent for him to prove that he did step on the pipe when he was climbing down the ladder, and that the surface of the pipe was slippery.

32.In determining whether Mr Lo could prove his pleaded case, I would have particular regard to contemporaneous documentation, which according to well-established principles must assume a special importance.

33.It is noteworthy that Mr Lo did not take any photos of the room or the pipe at the time of the incident. But according to him, right after the incident he did report his injuries in a WhatsApp group comprising his contractor and co-workers, and his messages were telling:-

(1)  At 3:33 pm on 18 January 2018, he reported to the group that he fell from the ladder (“羅國傑報工傷 (從梯跌下)”).

(2)  He repeated the same message at 3:43 pm and added that he injured his leg and knee.

(3)  On both occasions, he did not say he slipped on the pipe. Rather, he clearly said he fell from the ladder. During cross examination, he was offered the opportunity to explain, but all he could say was that he too casually dismissed the incident (“我睇小咗呢單意外”). I do not consider it to be a satisfactory explanation as to why he did not simply say he slipped on a pipe.

34.An accident report prepared by Shinryo dated 27 February 2018, disclosed by Mr Lo, also sheds light on the cause of the incident. I am aware that the author of this report is not known and Shinryo’s witness Mr Kung admitted that he did not know who compiled the report, so I have to be cautious in considering the reliability and probative value of this report. Having said that, the report did state that Mr Lo “claimed that he sprained his right knee when he was climbing down from lowest step of ladder platform to the ground.” This is consistent with what Mr Lo said in the WhatsApp group.

35.Further, Mr Ng Ka Shing, another employee of Kaiser, attended an interview with TRM (Case Management) Services on 29 November 2018 regarding the incident, and the interview was recorded in writing. Mr Ng did not testify at the trial, but I am entitled to take into account the contemporaneous interview record as hearsay evidence. In the interview, Mr Ng said while he did not witness the occurrence of the incident, he was informed on the spot by a safety officer (a Mr Lam) that Mr Lo told the safety officer that he slipped on the penultimate step of the ladder when he climbed down the ladder. This without doubt is multiple hearsay, but it again is consistent with what Mr Lo said in the WhatsApp group right after the incident.

36.Similar records of the incident can be found in a letter issued by the Labour Department (which I would, again, consider with caution as it is hearsay evidence). On 4 September 2018, the Labour Department issued a letter to Kaiser to ascertain if Kaiser would admit liability as the employer. It was stated therein that according to information provided by Mr Lo, he lost balance and fell while climbing down the ladder (“從鋼梯落地時，失去平衡跌倒”). There was no mention of the pipe, let alone a pipe with a slippery surface.

37.I also take into account the contemporaneous medical records:-

(1)  On 26 January 2018, Mr Lo attended the Sai Ying Pun Jockey Club General Out-Patient Clinic. In the consultation note written by Dr Chiu Yuen Chun, it was recorded that Mr Lo “fell from stair” and he could not “tell the mechanism”. In cross examination, Mr Lo said maybe he did not express himself clearly or the doctor may have made an inaccurate record.

(2)  On 20 February 2018, Mr Lo attended the Violet Peel General Out-Patient Clinic. In the consultation note written by Dr Jacky Lee, it was again recorded that Mr Lo “[f]ell from stair” and that Mr Lo was “unable to tell exact mechanism of injury”. In cross examination, Mr Lo said he would blame himself for not having mentioned the pipe and seriously told the doctor how the incident occurred.

(3)  Mr Lo had another visit to a Hospital Authority clinic on 10 March 2018, and the consultation note also recorded that Mr Lo “[f]ell from stair” and that he was “unable to tell exact mechanism of injury”.

(4)  I accept that the doctors could have made inaccurate records and Mr Lo had no control as to how the doctors wrote their consultation notes. However, as noted, Mr Lo did admit he should have been more serious in informing the doctors of the pipe. He accepted in cross examination that the fact that the pipe was slippery was an important matter. Against this his purported explanation that he omitted to tell the doctors about the pipe rings hollow.

(5)  These medical records are again aligned with what Mr Lo told his co-workers in the WhatsApp Group.

(6)  I have not lost sight of the fact that on 15 March 2018, Mr Lo attended the Sai Ying Pun Jockey Club General Out-Patient Clinic, and in that consultation note, the doctor did say Mr Lo said he “fell when stepping on a big metal pipe at work”. However, this consultation took place two months after the incident and was of less probative value than the two previous consultations, especially when Mr Lo could not tell in the two earlier consultations the mechanism of his injury.

38.It is also instructive to have regard to Mr Lo’s own evidence. While he pleaded that there were water, oil or other slippery substances on the surface of the pipe, he gave a somehow different version in his first witness statement, where he said there was sand and gravel on the surface of the pipe (“喉管上有地盤的沙石”). In cross examination, he said he did not know if there was oil on the pipe but he could tell there was no water on it. This inconsistency, coupled with my finding that Mr Lo was in general an utterly unreliable witness, also casts serious doubt on the veracity of Mr Lo’s pleaded claim.

39.Having taken into the above matters, I find that Mr Lo was unable to prove on a balance of probabilities his pleaded case that he stepped on the surface of a pipe which was slippery and fell as a result. For the avoidance of doubt, I should record that I do accept Mr Lo’s saying that at the time of the incident, there were pipes in the room. What Mr Lo failed to prove was that the pipe’s surface was slippery and he slipped while stepping on it.

40.In this connection, it may be noted that Mr Lo previously sought an order for MTR (ie the employer of the construction project) to allow him to enter the Site and do inspection. In allowing the application, Master Louise Chan commented that Mr Lo had a good recollection of the layout of the room. He built a model mock-up of the layout of the room and MTR confirmed that it generally matched the actual layout of the room: see the learned Master’s decision in [2023] 2 HKLRD 119.

41.Furthermore, from the photos taken by Mr Lo at the inspection, there were indeed large pipes installed in the room, though they were not placed or fixed on the floor. A reasonable guess would be that at the time of the incident, those pipes were already in the room only to be installed later. There is no suggestion that Mr Lo went back to the Site or room ever again after the incident, so he could not have known that there would be pipes installed in the room and retrospectively made up a story that there were pipes on the floor of the room at the time of the incident.

42.Mr Lo’s failure to prove his pleaded version of the incident is no small matter. That was the case that Kaiser and Shinryo were expected to meet and answer. If Mr Lo fell from the ladder and had advanced his case that way, Kaiser and Shinryo could have adduced factual and expert evidence on the safety of the ladder provided to Mr Lo. If Mr Lo fell because there was insufficient lighting in the room, Kaiser and Shinryo could have adduced factual and expert evidence on the sufficiency of the lighting. Indeed, Mr Tommy Lo fairly accepted that if I was not to believe Mr Lo’s version of the incident, then he would fail to discharge his burden of proof (although in his submissions he did make complaints about Mr Lo being provided with only a straight ladder instead of an A-shaped ladder and that the room was filled with rubbish at the material time).

43.As Mr Lo failed to prove the incident as pleaded by him, his claims fall to be dismissed in their entirety.

Issue (2) - Negligence/Breach of Kaiser and Shinryo

44.Given my finding on issue (1), this issue (2) does not arise for determination. For the sake of completeness, I shall set out my views on the basis that Mr Lo slipped on the slippery surface of the pipe when he was climbing down the ladder.

45.The following principles regarding the liability of an employer of labour are well established:-

(1)  In approaching the question of whether there was any negligence or breach of the statutory duties, it is important to bear in mind that the law does not require perfection. The employer is not an insurer of his employee’s personal injury. There is hardly anything in the world which could not be better done with the benefit of hindsight. An employer is not liable simply because after the event someone is able to make some extravagant suggestions of how things could be better arranged to avoid that particular accident: see Ng Kong v Golden Caterers Ltd HCPI 206/2004 (unreported, 3 March 2005) at §24 per Recorder Edward Chan SC.

(2)  The common law duty of an employer is to act reasonably in all the circumstances. He should employ competent servants, supply them with adequate plant and give adequate directions as to the system of work or mode of operation, but this does not mean that the employer must decide on every detail of the system of work or operation. Where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foremen or workmen on the spot: Winter v Cardiff Rural District Council [1950] 1 All ER 819 at 822H-823A.

(3)  The law does not require an employer to treat its workers, in the carrying out of their everyday normal jobs which do not entail any special risk or danger by the workers, as though they were kindergarten pupils who if not told, would not be aware of the kind of common everyday risks that a reasonable person should be aware of: Lam Ka Lok Louis v Swire Properties Management Ltd HCPI 914/2003 (unreported, 30 April 2005) at §39 per Suffiad J.

(4)  The standard of safety to be applied in a nursery cannot be applied to a construction site. Water, mud, building debris are the usual things to be found in a construction site. Those who work in a construction site must be aware of these obvious, usual and inherent dangers of working in a construction site: Wong Wing Chow v Lee Wing Hang Patrick t/a Wing Shun Construction Company HCPI 244/2002 (unreported, 24 October 2003) at §16 per DHCJ To (as To J then was).

46.It is important to bear in mind that in his Amended Statement of Claim, Mr Lo made no complaint about being provided only with a straight ladder as opposed to an A-shaped ladder or work platform, and he made no complaint about the lighting condition of the room, although he did make a general plea that Kaiser and Shinryo failed to provide him with a safe place of work and a safe system of work. But Mr Lo did not elaborate on that general plea with any particulars.

47.The crux of his complaint remained that he had to step on the pipe, of which the surface was slippery. Assuming that he could establish this claim, I am of the view that there was no negligence or breach of duties on Kaiser and Shinryo’s part for the following reasons:-

(1)  The Site was a large construction site. By its nature there would inevitably exist debris, sand and gravel in Mr Lo’s working environment.

(2)  By the time of the incident, Mr Lo had already worked in the Site for a few days. There was no suggestion by Mr Lo that the working environment drastically changed on the day of the incident, or that he was not aware of the existence and condition of the pipe in the room, or that he did not know he had to step on the pipe when climbing up or down the ladder.

(3)  There was no dispute that Mr Lo was provided with anti-slippery shoes, and that he was provided with safety training prior to commencing work. Mr Kung’s evidence that there were regular inspections of the Site was also not challenged by Mr Lo.

48.Even if I were to interpret Mr Lo’s plea more generously and to allow him to advance his complaint about the provision of a straight ladder and the lighting condition, my conclusion would be the same. Having considered Mr Lo’s witness statements and testimony, I cannot discern any evidence suggesting that working on a straight ladder was inherently or unreasonably unsafe, or that the lighting condition of the room posed any danger to Mr Lo.

49.By reason of the aforesaid, if Mr Lo could establish his pleaded complaint that he slipped on the slippery surface of the pipe (or even his complaint that he was only provided with a straight ladder and there was insufficient lighting in the room), I would hold that Kaiser and Shinryo were not negligent and did not breach any duties, be it duty of care, statutory duty, or duty as an occupier.

Issue (3) – Contributory Negligence

50.Since I have ruled against Mr Lo on both issues (1) and (2), there is no need to determine if Mr Lo was contributorily negligent. For the sake of completeness, I shall set out below my views on this issue.

51.The principles on contributory negligence are well established. It simply means that an employee undertaking activity in the course of his employment owes a duty of care to himself, and if he failed to use reasonable care for his own safety and contributed to his own damage, there could be a reduction in the award. The court would take into account the following considerations:-

(1)  The level of skills and experience the employee has attained; the higher the level the more he is liable to look after himself. The degree of pressure imposed upon an employee by his employer to maintain or increase output at the expense of cautio; the greater the pressure, the less the employee is to blame. The degree of familiarity the employee has with that activity which puts his own safety at risk: So Chung Kwong v Ho Kuen [2000] 3 HKLRD 241 at 249F-I.

(2)  A distinction has to be drawn between the situation where there has been momentary inattention on the part of the injured employee and the conscious acceptance of a risk by the employee. If the employee is skilled and the precaution which would have avoided the accident complained of is a simple one, the employee can properly be required to bear the greater responsibility: Ng Tim Yip Kevin v Chan Ho Kin CACV 285/2007 (unreported, 23 October 2008) at §52.

52.In their Amended Defence, Kaiser and Shinryo pleaded that Mr Lo was contributorily negligent in, among others, the following manner:-

(1)  Stepping on the pipe instead of the floor when descending the ladder.

(2)  Failing to maintain a three-point contact with the ladder when descending it.

53.Having taken into account the following matters, I would have found Mr Lo to be contributorily negligent had it been necessary for me to determine the issue:-

(1)  Mr Lo did not dispute that before commencing work, he was instructed to maintain a three-point contact with the ladder when ascending or descending it, and he did not dispute that he was not under time pressure.

(2)  If he had maintained the three-point contact as instructed, then even if he had to step his right foot on the pipe of which the surface was slippery, he would still have been holding the ladder with his two hands and he should not have slipped.

(3)  Climbing up and down a ladder is not in itself a complicated task, and Mr Lo being an experienced electrician with related qualifications should have no difficulty in properly using it to avoid injuries.

(4)  Further, apart from saying that there was rubbish on the floor of the room, he could offer no reason why he had to step on the pipe instead of the floor when going down the ladder. He adduced no corroborating evidence on how much rubbish there was on the floor. He also did not explain why having worked in the Site for a few days, he did not clear the rubbish on the floor if the quantity of the rubbish was so significant that he was prevented from walking freely on the floor.

(5)  On the other hand, Mr Kung from Shinryo said there were regular inspections of the Site, and workers were reminded to maintain a clean working environment. On balance, I do not consider it necessary for Mr Lo to step on the pipe instead of directly on the floor when he descended the ladder.

54.The next issue would have been the percentage share of Mr Lo’s contributory negligence. I consider that the facts of this case (assuming I had accepted Mr Lo’s version of events) bears similarities to the following two cases, and I would have found Mr Lo to be 50% contributorily negligent:-

(1)  San-To, Po Yuk Hitler v Wing Kwong Painting Co Ltd [2004] 2 HKLRD 169: The plaintiff there sustained injuries when descending a ladder. He was found to have failed to notice the plain defects with the ladder and failed to wait until his left foot had reached the third rung of the ladder before swinging his right foot over to the left side of the ladder. Suffiad J found him to be 50% contributorily negligent.

(2)  Wong Wing Chow (supra): The plaintiff suffered injuries while climbing down a ladder. DHCJ To stated that had the employer been held liable for providing the plaintiff with a ladder without handrail, then he would have found the plaintiff to be 50% contributorily negligent for choosing to descend the ladder with his back to it.

Issue (4) - Quantum

55.According to the joint medical report dated 21 April 2021 prepared by Dr Chester Lie and Dr Peter Ko:-

(1)  Mr Lo reported that on the day of the incident he attended a bone setter. He subsequently attended public out-patient clinics as well as private clinic, both western and Chinese. He received an anterior cruciate ligament and meniscus surgery in March 2019. By the time of the joint report, he was having physiotherapy and occupational therapy sessions.

(2)  Mr Lo complained to the two experts that he suffered pain in his right knee over anterior and both sides especially the medial side. He would feel especially painful he if walked for 30 minutes or more, walking on stairs, during weather change or after exercise. He could conduct daily activities and take public transportation on his own.

(3)  Both experts diagnosed Mr Lo with right knee anterior cruciate ligament (“ACL”) and meniscus tear. Both experts opined that the mild degeneration over Mr Lo’s right knee was pre-existing and that there was a strong possibility that some other event or natural progression of the existing condition would have brought about the problem.

56.The experts somewhat differed on whether the ACL tear was caused by the incident on 18 January 2018. Dr Lie opined that it was possible that the incident caused the ACL and meniscus tear, while Dr Ko found it doubtful. Neither expert could say with certainty if the incident did cause such injuries, and as Mr Lo bore the burden of proof, I am not satisfied that he discharged the burden. In any event, I prefer the opinion of Dr Ko to that of Dr Lie:-

(1)  The MRI result showed that the ACL tear was chronic, not acute. Dr Lie offered an explanation – the MRI was done some six months after the incident, so it was possible for the MRI to show feature of chronic tear. However, it can be seen that because of this MRI result, Dr Lie had to qualify his opinion. Earlier in the report, he said in a much certain tone that the incident was the cause of the injury. In view of the MRI result, he could merely say that it was possible that the incident caused the injury.

(2)  Dr Lie opined that a patient with ACL tear and meniscus tear would usually have a swelling knee, decreased range of motion and medial knee pain with tenderness. He acknowledged that the out-patient clinic records one month after the incident did not show such symptoms, but he said after one month it was possible that the records would show that there was not much swelling with Mr Lo’s knee (though the records actually said “no swelling”) and that the knee had a good range of motion (though the records actually said “full range”). It appears that Dr Lie could not explain away what was actually stated in the records. He also did not try to address the medical records prepared eight days after the incident.

(3)  Dr Ko noted from the medical records prepared eight days after the incident that Mr Lo’s walking was not affected, there was no record of a swelling knee, and the right knee tenderness was only mild. The medical records one month after the incident again noted that Mr Lo could walk unaided with no swelling knee. Further, there was no mention of effusion or erythema. Dr Ko opined that it would be difficult to image how a person with significant structural loss and derangement of ligamentous and soft tissue structures in the knee would not have been detected with significant impairment in the range of motion and with walking difficulties.

57.The two experts also held different opinion as to Mr Lo’s residual conditions and actual discovery. Dr Lie was of the view that Mr Lo suffered from residual right knee pain with stiffness and weakness, whereas Dr Ko opined that Mr Lo’s recovery was better than what Mr Lo claimed. In this regard I am disinclined to accept Dr Lie’s views:-

(1)  In coming to his conclusion, Dr Lie appeared to have accepted Mr Lo’s subjective saying that he needed the aid of a walking stick for a long walk and that he could not squat or walk up more ten steps of stairs. The aforesaid complaints of Mr Lo, however, are at odds with the objective medical records.

(2)  More importantly, Kaiser and Shinryo placed Mr Lo under surveillance in May 2019. From the relevant video footage, I observe that on 14 May 2019, Mr Lo could walk unaided. On 21 May 2019, he was able to travel from Wanchai to shop around pharmacies in Sham Shui Po and carry his luggage and backpack to Shenzhen. When he was in Shenzhen, there was an episode where he could even climb up the railing on the side of the pavement and jump down onto the ground. Dr Lie did not address the surveillance findings.

(3)  Further, as noted earlier in the judgment, in the period between 18 January 2018 and 17 May 2021, Mr Lo left Hong Kong for Mainland China for 27 times. He took his first trip to Shenzhen on 5 February 2018, ie fewer than three weeks after the incident. This is certainly not what a person with walking difficulties would have done, especially when Mr Lo had no pressing need to travel. I also take into account my finding above that Mr Lo is an utterly untruthful witness and the fact that he allegedly managed to start doing housework for his former wife not long after the incident.

58.Having considered the injuries and recovery of Mr Lo, I consider that an appropriate award for pain, suffering and loss of amenity (“PSLA”) would be $180,000. Mr Lo’s claim for $300,000 under this head is grossly exaggerated. I find that this case bears resemblance to Rukhsar Begum v Native English Centre t/a The Green Lounge DCPI 2243/2015 (unreported, 3 April 2017), where the plaintiff fell at work and injured her right ring finger and right knee with reduced range of movement and a possible tear of the posterior horn of the medial meniscus. Her Honour Judge Levy awarded that plaintiff PSLA of $180,000.

59.I would have to make adjustment of the PSLA by taking into account Mr Lo’s pre-existing condition, which the experts agreed to be a scenario two situation (see Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958). A 30% reduction would be appropriate, like what DDJ KC Chan (as His Honour Judge then was) did in a similar situation in Law Sze Chun v Li Mie Chun [2018] HKDC 1172. So I would have awarded PSLA in the sum of $126,000.

60.As to loss of earnings and MPF, Mr Lo pleaded that prior to the incident he worked as an electrician with a daily wage of $1,000 with overtime payment. He claimed to work for 25 days a month on average, earning $28,000 a month. He claimed $1,344,000 under this head, with a notional trial date being 19 January 2022. These are nothing more than bare assertions. Mr Lo relied on the fact that for the work at the Site he was earning $1,000 a day and he could work for 25 days a month for that project. That, however, does not mean that he could always undertake that much work with such a daily wage prior to the incident. For instance, from the limited disclosure made by Mr Lo, I can only be certain that in 2016 Mr Lo worked for 33.5 days in total earning $27,697.5 in aggregate.

61.On the other hand, Kaiser and Shrinyo have adduced evidence to show that the average earnings of comparable workers would be $18,829.63. I am prepared to accept it as the pre-trial monthly earning that Mr Lo could have earned.

62.Mr Lo pleaded that he had been granted sick leave up to the notional trial date. It is trite that sick leave certificates are not conclusive evidence of when a patient is able to get back to work (see Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210). On his own case, Mr Lo was able to start doing housework for his former wife after the incident. He was able to earn money by exporting powdered formula to Shenzhen and reselling goods purchased in Shenzhen. He took up various employments which only came to light during the trial. I accept Kaiser and Shinryo’s submission that the sick leave period should be at most 16 months.

63.On the basis that Mr Lo was earning $18,829.63 with a 16-month sick leave, and taking into account the contributions for MPF (ie adding a multiplier of 1.05), I would have awarded pre-trial loss of earnings at $316,337.78 (ie $18,929.63 x 1.05 x 16). That said, on Mr Lo’s own case after the incident he managed to earn income by working for his former wife. On the basis that Ms Tang’s evidence that Mr Lo worked for her for 72 hours were true, Mr Lo earned $2,700 a month. I would give credit to such earnings and adjust the damages under this head to $273,137.78 (ie $316,337.78 - $2700 x 16).

64.Mr Lo claimed future loss of earnings of $1,173,397 and loss of earning capacity of $129,656. Considering the progress of his recovery, his ability to travel frequently to Shenzhen and his capabilities of taking up various employments (including working as a supporting assistant in a Hospital Authority accident and emergency room earning $18,000 a month from September 2024 to January 2025), I am of the view that Mr Lo could resume his pre-accident job and no damages would be awarded for loss of future earnings. Further, he would reach the ordinary retirement age of 65 on 10 August 2026, so I do not think it is appropriate to aware damages for loss of earning capacity.

65.For special damages, Mr Lo claimed medical expense of $19,400, travelling expenses of $15,000 and tonic food and accessories of $2,000. There is no documentary evidence substantiating the latter two claims. Part of the medical expenses were related to Mr Lo’s ACL tear, which I do not accept to be caused by the incident. Taking a necessarily broad-brush approach, I would have awarded $15,000 for special damages.

66.In sum, if I had ruled in Mr Lo’s favour on liability, I would have awarded him $414,137.78 ($126,000 for PSLA, $273,137.78 for pre-trial loss of earnings and $15,000 for special damages). A 50% downward adjustment would have had to be made for contributory negligence, bringing the quantum to $207,068.89. As the employees’ compensation received by Mr Lo earlier in the sum of $456,010.80 already exceeded the award that I would have granted, Mr Lo’s claims in this action must be dismissed one way or another.

Conclusion

67.By reason of the aforesaid matters, I hereby dismiss Mr Lo’s claims against Kaiser and Shinryo in their entirety.

68.As to costs, day one of the trial was adjourned as Kaiser and Shinryo asked for time to address the new evidence which I allowed Mr Lo to adduce at the commencement of the trial. I consider that the adjournment was necessitated by Mr Lo’s seeking indulgence and the costs occasioned by it should not be borne by Kaiser and Shinryo. Separately, given my finding that Mr Lo was an untruth and unreliable witness, and that he exaggerated his injuries and financial hardship and that he concealed his post-incident employments, indemnity costs would be appropriate.

69.I therefore make an order nisi that:-

(1)  Mr Lo do pay Kaiser and Shinryo the costs of the action including all costs reserved, to be taxed if not agreed on an indemnity basis with certificate for one counsel.

(2)  Mr Lo’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Tommy Lo, instructed by Tang, Wong & Chow, for the plaintiff

Mr Simon Wong & Ms Sabina Sui, instructed by Deacons, for the 1^st and 2^nd defendants