Sit Kan Tat v. World-class Talent Ltd and Another

CAMP 167/2024 & 169/2024
[2025] HKCA 539

CAMP 167/2024

On Appeal From [2024] HKDC 420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 167 OF 2024

(ON INTENDED APPEAL FROM DCPI NO. 3632 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Background

1.These are applications by the 1^st and 2^nd defendants for leave to appeal against the judgment of Deputy District Judge Gary C. C. Lam in favour of the plaintiff for damages for personal injuries (“Judgment”).[1]  The judge has refused to grant leave to appeal (“Leave Decision”).[2]

2.The plaintiff was employed by the 1^st defendant as a forklift driver working at a warehouse in Yuen Long (“Warehouse”) which was occupied and managed by the 2^nd defendant.  The floor of the Warehouse was at an elevated 1.5m to 1.7m above ground.  On 10 April 2018 at around 12:45 pm, when the accident took place, there was a wooden pallet placed on the ledge of the back entrance / exit of the Warehouse as a kind of makeshift ramp to the ground.  Leaving the Warehouse, the plaintiff stepped onto the pallet but fell with it to the ground.  He suffered injuries tohis right wrist (factures to right distal radius, ulnar styloid and scaphoid) and right knee.

3.The plaintiff brought the action below against the 1^st defendant as his employer and the 2^nd defendant as occupier of the Warehouse, for negligence, breach of implied terms of contract, and breach of duties under the Occupational Safety and Health Ordinance (Cap. 509) (“OSHO”), seeking damages for his injuries.

4.Both liability and quantum were contested at trial. In the Judgment, the Judge made the following main findings of fact:

(1)     The 1^st defendant had no knowledge of the working conditions at the Warehouse, and did not send any foreman or supervisor to supervise the workers at the Warehouse.

(2)     A wooden pallet had been placed at the back entrance as a makeshift ramp for workers to enter and exit with the 2^nd defendant’s knowledge via a supervisor it employed, “Brother Wah”.

(3)     It was risky and dangerous for anyone to egress through the back entrance of the Warehouse by using the wooden pallet as a ramp.  “Brother Wah” had seen workers using the wooden pallet for egress at the back entrance, and he himself also did it and never stopped the plaintiff or other workers from doing so.

(4)     The other workers there told the plaintiff that he could use the wooden pallet at the back entrance for egress.

(5)     There was a Safety Warning put up by the 2^nd defendant at the right hand side of the back entrance of the Warehouse, which was specific and conspicuous, warning people not to enter or exit there.  The plaintiff had noticed the Safety Warning before the accident.

(6)     At the time of the accident in question, the plaintiff blacked out (or felt dizzy), stepped onto the wooden pallet, lost balance, and fell.  After the accident, the plaintiff said to his father and sister that he used the back entrance “only for convenience sake” (貪方便).

5.The judge found that the 1^st defendant breached its duty to the plaintiff by failing to provide reasonable supervision.

6.The judge held that the 2^nd defendant breached its statutory duties under section 7(1) of the OSHOand common law duties in that it had failed to take reasonably practicable measures to ensure that people did not use the back entrance for entry and egress.  In particular, in light of the 2^nd defendant’s failure to notice and remove the wooden pallet, the lack of inspection of the back entrance during the busy hours and the fact that Brother Wah did not set a proper example or stop other workers from using the back entrance for egress, the 2^nd defendant failed to take reasonably practicable and safe measures to ensure the back entrance of the Warehouse was safe.

7.The judge found that the risk and danger of using the wooden pallet for egress was obvious and that the plaintiff consciously accepted the risk of injury, as he knew of but ignored the Safety Warning.  The judge assessed his contributory negligence at 35%.

8.The judge apportioned liability between the 1^st and 2^nd defendants at 40:60, primarily on account of what Brother Wah did and did not do.

9.As regards the plaintiff’s extent of injuries, the Judge considered his medical treatment history and the joint orthopaedics report, which recorded that (i) the plaintiff complained that he could only carry objects of 8 kg for 1-2 minutes; (ii) the joint examination revealed that the plaintiff’s grip strength in different Jamar positions ranged from 15 kg to 27 kg; and (iii) both experts agreed that although the plaintiff’s right handgrip power was weaker than the left hand during the joint examination, with the bone of the right wrist becoming stronger with time with loading of the bone during daily activities, the plaintiff’s right upper limb should become stronger than during the joint examination, albeit without achieving full recovery.  The Judge rejected the plaintiff’s evidence that his grip power had weakened since the joint examination to 15 kg only.

10.As regards the plaintiff’s employment prospects, the Judge noted the experts’ agreement that the plaintiff would be able to return to his previous job, although Dr Chan (the plaintiff’s expert) opined that he would need a reduction in working hours and intermittent breaks, as well as the plaintiff’s submission that the Judge had to form his own view as the experts did not ask the plaintiff how much weight he would have to bear if he resumed his previous job.  The Judge accepted the plaintiff’s evidence that after the pandemic, “the logistics industry has shrunk and thus, the workforce market has become more competitive in that less people are employed and one worker is expected to do more” as a matter of common sense, which renders the plaintiff less employable.

11.On the quantum of damages, the judge found that the plaintiff’s pre-accident monthly income was $12,240.  The plaintiff returned to work full-time as a forklift driver from September to mid-October 2019, but had to leave because he was unable to meet the requisite performance standard as a result of his wrist injury.  Thereafter he worked for various logistics companies on a part-time basis for 15 to 20 days a month at $600 to $700 per day until the end of January 2020.  After that the number of his working days decreased to about 10 days per month because the Covid pandemic had lessened the demand for part-time workers in the logistics field.  On this basis the judge awarded damages for, among others, the following heads of loss:

(1)     HK$509,034.10 for pre-trial loss of earnings, which consisted of (i) $206,916 for the period of sick leave allowed up to 19 February 2019 plus an allowance of 6 months to look for new employment, less income of $3,000 (i.e. $12,240 × 16⅓ × 1.05 – $3,000 = $206,916) ; (ii) $3,178.88 being the loss of income for the period between mid-October 2019 to the end of January 2020 (i.e. [$12,240 – ($650 × 17.5)] × 3.5 × 1.05 = $3,178.88); (iii) $298,939.2 being the loss of income from February 2020 until judgment (18 March 2024) (i.e. [$12,240 – ($650 × 10)] × (49 + 18/30) × 1.05 = $298,939.2).

(2)     $1,319,913 for future loss of earnings based on a multiplier of 18.25, on account of the difference between the plaintiff’s pre-accident monthly income and his monthly income for part-time work at logistics companies for 10 days per month, plus MPF compensation, until his retirement (i.e. [$12,240 – ($650 × 10)] × 12 × 18.25 × 1.05 = $1,319,913); and

(3)     $58,500 for loss of earning capacity, equivalent to a loss of income of 9 months at $6,500 per month.

12.Together with PSLA and special damages, and after discounting for contributory negligence (35%) and giving credit to the employee’s compensation already paid in the sum of $142,591.40, the net amount of damages awarded to the plaintiff was $1,285,434.62.

Intended appeals

13.In its draft Notice of Appeal as explained in its written statement, the 1^st defendant contends that the plaintiff is not entitled to be compensated for any loss of earnings as from February 2020 or for loss of earning capacity, based on the intended grounds of appeal referred to below.

14.By its draft Notice of Appeal and written statement, the 2^nd defendant seeks leave to appeal against both liability and quantum, based on the intended grounds of appeal referred to below.

15.By statute, to obtain leave to appeal, a litigant has to establish that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard: section 63A(2), District Court Ordinance (Cap. 336).  Pursuant to Order 59 rule 2A(5) of the Rules of the High Court (Cap 4A), we consider it appropriate to determine the defendants’ applications for leave to appeal on the basis of the written materials without an oral hearing.

The 1^st defendant’s intended grounds of appeal

16.We deal first with the 1^st defendant’s intended grounds of appeal.  They relate solely to the quantum of damages for loss of earnings and loss of earning capacity.

17.Ground 1A (§2 of the draft notice of appeal) complains that the judge erred in accepting the plaintiff’s evidence that the logistics industry has shrunk after the pandemic and a forklift driver would be expected to take on more and heavier work of moving parcels and the like, and that the plaintiff has become disadvantaged, or less employable, due to his injuries since he could not do such additional work as effectively as a normal forklift driver.  It is said that the judge should not have allowed the plaintiff to supplement his evidence to this effect in his oral evidence-in-chief, and that it was highly prejudicial to the 1^st defendant for the court to accept such new evidence revealed for first time during the trial.  Had the matter had been raised earlier, the 1^st defendant could have adduced contrary evidence regarding the possibility of the improvement in the logistics industry after the pandemic.

18.We note that based on the plaintiff’s pleadings and his witness statements, overall the plaintiff’s case was that (i) he suffered reduced physical capacity due to the accident, (ii) by reason of such reduced capacity, he became less employable, for he could work only on a part-time basis at various logistics companies for 15 – 20 days per month between mid-October 2019 and the end of January 2020, and for 10 days per month from February 2020 due to the pandemic, and (iii) he could work for 10 days per month from February 2020 until the date of the trial (as the basis for his pre-trial loss of earnings) and that would remain the case until his retirement (as the basis for his future loss of earnings).  

19.In particular, as the judge noted in his Leave Decision at §8, the plaintiff had mentioned the shrinking of the logistics industry since February 2020 due to the pandemic in his Revised Statement of Damages.  Thus it was pleaded there that:

“ 18. Since February 2020, the demand of part-time workers in the logistics field decreased as a result of the COVID-19 pandemic. The competition between workers became more fierce. Because of the residual disabilities suffered by the Plaintiff, he found fewer opportunities. He has been working around 10 days per month (ranging from 8 to 14 days in any given month), at $600.00 to $700.00 daily.

…

26.    Based on the medical evidence pleaded above, the Plaintiff avers that he suffers a disadvantage in the labour market when he has to compete with other able-bodied workers, as a result of the Accident.  There is a higher chance for him to be out of work because of his residual disabilities and he will thus suffer further loss.”

20.In the plaintiff’s first witness statement filed on 17 June 2021, under the heading “work after the Accident”, in paragraphs 23-24 the plaintiff stated that (i) he can only lift weights less than 15 kg after the accident, thereby greatly reducing his competitiveness in the labour market and (ii) (after October 2019) he worked part-time for different logistics companies for 15 to 20 days per month, and due to the COVID pandemic he worked for 10 days per month from February 2020.  In the plaintiff’s supplemental witness statement filed on 3 November 2021, he referred to the termination of his employment on a permanent basis in October 2019 due to his reduced physical capacity and his subsequent part-time work at logistics companies.

21.In its Answer to Revised Statement of Damages filed on 15 November 2021, the 1^st defendant disputed the plaintiff’s case on two grounds, namely, (i) the plaintiff did not suffer from reduced physical capacity by reference to medical evidence to be adduced, and (ii) any loss of earnings was due to Covid-19 pandemic and was not caused by the accident.  Thus it can be seen that the 1^st defendant did not dispute the effect of the pandemic per se as alleged by the plaintiff but asked the court to disregard it.

22.The plaintiff’s oral testimony was therefore supplementary evidence in line with his pleadings and witness statements.  As the judge noted in his Leave Decision at §12, at the trial neither defence counsel raised any objection to the plaintiff being asked questions in examination-in-chief leading to the evidence now complained about.  Nor did the defendants complain of being taken by surprise or being prejudiced in terms of not having had an opportunity to investigate or adduce contrary evidence.  The 1^st defendant did not challenge in cross-examination the plaintiff’s evidence regarding his part-time work until the end of January 2020 and the subsequent decrease in the number of working days due to the pandemic, which had lessened the demand for part-time workers in the logistics industry (Judgment, §105).  Nor did the defendants ask for an opportunity at trial to put in any further evidence to deal with what is now complained to be unexpected additional evidence from the plaintiff.  As the judge pointed out in §15 of his Leave Decision, the 1^st defendant in closing submissions simply submitted that the shrinking of the industry was unrelated to the injury.

23.The 1^st defendant has failed to deal with any of the reasons mentioned by the judge in his Leave Decision for refusing leave to appeal in relation to this ground.  In our view there is no reasonable prospect of success in this ground.

24.By its Ground 1B (§3 of the draft notice of appeal), the 1^st defendant complains that the judge misapprehended the ramifications of the evidence pertaining to the pandemic.  It is said that the pandemic was an independent supervening non-tortious event – a vicissitude of life unrelated to the 1^st defendant’s negligence, and that the 1^st defendant should therefore not be held liable for the plaintiff’s reduced working days after February 2020 which was caused by the pandemic.  It is submitted that even if the accident had not happened, the plaintiff would still have suffered loss of earnings because of the pandemic and the lessened demand for workers in the logistics field.

25.Again the 1^st defendant is simply repeating its argument and has failed to deal with the judge’s response to this intended ground of appeal.  In his Leave Decision at §23, the judge said that the plaintiff used to work as a full-time forklift driver, but because of his reduced employability as a result of his injuries, he had to leave that position in mid-October 2019 and thereafter worked on a part-time basis. It was as a part-time worker that the plaintiff became vulnerable to the changes in the demand for part-time workers in the logistics field.

26.The judge also pointed out in his Leave Decision at §24 that if the 1^st defendant wished to run the argument that the COVID pandemic was an event that had superseded the tortious act of the defendants, it was for the 1^st defendant to establish that the pandemic would have caused the same loss to the plaintiff regardless of the injuries caused by the accident.  But there was no investigation, no evidence, and no finding to that effect.  As the plaintiff points out, the 1^st defendant did not cross-examine the plaintiff to the effect that the plaintiff would have had less work or income due to the pandemic irrespective of the accident.  Nor did the defendants run a case that the effects of the pandemic on the industry, and thus on the plaintiff’s income, would wane.  We take the view that this ground does not have any reasonable prospect of success.

27.The 1^st defendant’s Ground 2 (§1 of the draft Notice of Appeal) complains that the judge had no proper evidential basis to find that the plaintiff became less employable, as the judge rejected the plaintiff’s evidence that his right hand grip power decreased to 15 kg and there was the experts’ agreed opinion that the plaintiff’s grip power would improve with time.

28.We do not agree.  The judge noted the joint examination that revealed the plaintiff’s grip power in right hand ranged from 15 kg to 27 kg and the experts’ agreed opinion that the plaintiff’s grip power would improve afterwards with time, although no full recovery was achievable.  The judge’s rejection of the plaintiff’s evidence that his grip power had weakened after the joint examination to 15 kg does not mean the judge held that the plaintiff suffered no residual disability.  In fact both experts agreed that the plaintiff had suffered permanent impairment in his right hand (Judgment, §86).  Coupled with the judge’s finding regarding the labour market conditions, it cannot be said that the judge had no evidential basis to conclude that the plaintiff would become disadvantaged and less competitive in his field.  We do not therefore think that this ground has any reasonable prospect of success.

29.Ground 3 (§§4-7 of the draft notice of appeal) appears to be a conclusory ground, complaining that in light of the above grounds the judge erred in awarding the plaintiff loss of earnings from February 2020 to retirement and awarding a sum for loss of earning capacity.  This ground falls with the earlier grounds and requires no separate discussion.

The 2^nd defendant’s intended grounds of appeal

30.The 2^nd defendant has put forward three intended grounds of appeal.  Ground 1 is that the judge erred in his findings on liability because (i) the particulars of the plaintiff’s pleaded case were not made out or were rejected, and (ii) the judge’s findings in §§58-59 of the Judgment against the 2^nd defendant were not pleaded by the plaintiff.

31.We do not think there is any reasonable prospect of success in this pleading point.  

32.The particulars of negligence pleaded by the plaintiff were:-

“ 6.1 Failed to take all reasonable steps and precautions to ensure the Plaintiff’s safety in carrying out his duties or egressing from the back entrance of the Warehouse;

6.2 Failed to give any, or any sufficient warning to the Plaintiff regarding the risk of injury associated with egressing from the back entrance of the Warehouse;

6.3 Failed to provide and maintain any proper and/or suitable means of egress when the Plaintiff egressed from the back entrance of the Warehouse;

6.4 Failed to provide any, or any reasonable supervision and/or instruction to ensure that the Plaintiff would egress from the back entrance of the Warehouse in a reasonably safe manner;

6.5    Exposed the Plaintiff to unnecessary risk of injury of which the 1^st Defendant and/or the 2^nd Defendant knew or ought to have known.”

33.It is submitted that the plaintiff’s pleas in §§6.1, 6.3 and 6.4 regarding safety in egress from the back entrance of the Warehouse do not apply because the judge had not made any finding that the plaintiff was entitled to egress from the back entrance.  We do not accept this argument. The judge found as a fact that the workers there, including Brother Wah the supervisor, used the wooden pallet at the back entrance for egress and that Brother Wah never stopped the plaintiff or any other worker from doing so (Judgment, §47).  Clearly a duty of care could arise in this context to ensure the workers’ safety in using the back entrance, even without finding that the workers were entitled as a matter of corporate policy to use that entrance.  Mr Ho submits on behalf of the 2^nd defendant that §47 of the Judgment was only about the 1^st defendant.  We do not think this is a correct way of reading it because the factual finding there provided the context for the entire case, not just for the case against the 1^st defendant.

34.It is also submitted that what the judge said in §§58 and 59 of the Judgment concerning the conduct of Brother Wah and the lack of supervision and inspection of the back entrance formed the basis for finding the 2^nd defendant liable but was not pleaded by the plaintiff. Whilst the plaintiff’s pleading did not condescend to the level of details that appeared in the Judgment, we do not think that the judge’s finding falls outside the plaintiff’s pleaded case regarding the safety of egress at the back entrance.

35.The 2^nd defendant’s Ground 2 says that in assessing the plaintiff’s contributory negligence at 35%, the judge failed to take into account five relevant factors, namely (1) the plaintiff’s knowledge of the prohibition against using the wooden pallet, (2) the plaintiff’s dizziness and tiredness at the time of the accident, (3) Brother Wah did not tell the plaintiff he could use the back entrance, (4) CCTV footage showed that shortly before the accident, no co-workers had exited through the back entrance or encouraged the plaintiff to use the wooden pallet, and (5) the Safety Warning.

36.The 2^nd defendant no longer disputes that the Judge did consider the matters mentioned in (1), (3) and (5).  As to the plaintiff’s dizziness and tiredness, the judge was entitled not to take it into account when, even though it was mentioned in the plaintiff’s own pleading, the defendants did not rely on it for contributory negligence or otherwise (Judgment, §18).  Accordingly there was no investigation of the causative effect the plaintiff’s own physical condition had in relation to the accident. The judge cannot be faulted for not holding the plaintiff contributorily negligent in this regard.

37.As to the 2^nd defendant’s complaint that the CCTV footage did not show that shortly before the Accident any co-workers had used the back entrance or encouraged or suggested that the plaintiff use the wooden pallet, we fail to see how this can be a significant factor influencing the judge’s assessment of contributory negligence given that it covered only a short period of time.

38.Overall the 2^nd defendant has failed to make out its complaint that the judge’s assessment of contributory negligence at 35% was outside the limits reasonably open to him.  Each case turns on its own facts.  The cases cited by the 2^nd defendant did not purport to establish a principle of law that contributory negligence must exceed 50%.

39.The 2^nd defendant’s Ground 3 complains that the judge erred in allowing compensation for loss of earnings and loss of earning capacity because (1) the reduction of workload was not caused by the accident, (2) the plaintiff did not plead the situation after the Covid pandemic, and (3) the judge failed to consider if the plaintiff’s loss from being unemployed since June 2023 arose from his failure to attempt to work.

40.As to (1), we do not propose to repeat our analysis above of the judge’s findings in relation to the pandemic.  Mr Cheng for the plaintiff correctly points out that the judge did not find the pandemic to be the sole cause of the reduction in the number of working days.  It was the plaintiff’s disability and impairment, coupled with the shrinking of the logistics industry, that caused the decline.  Neither defendant tried to show at trial that the plaintiff would have suffered the same loss of earnings even without the accident.

41.As to (2), §§18 and 26 of the plaintiff’s Revised Statement of Damages have been set out above.  It was the plaintiff’s case that he could only work 10 days a month since February 2020, which was not limited to the period during the pandemic.  As the judge noted in §10 of the Leave Decision, there was evidence allowed to be given on the situation after the pandemic, as an update after the witness statements were filed, which was consistent with the plaintiff’s pleaded case that the demand for part-time workers had decreased and his earning capacity had been disadvantaged by the accident and he could only work around 10 days a month.

42.As for (3), the Judge actually awarded loss of earnings not on the basis that the plaintiff would be unemployed but that he could in future work 10 days per month as a part-time logistics worker.  The present case is therefore quite different from the cases of Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd (CACV 172/2004, 15 July 2005) and Ho Kwok Kei v AS Watson & Co Ltd [2019] 3 HKLRD 592 relied upon by the 2^nd defendant.  At trial the 2^nd defendant’s counsel produced the statistics from the Census and Statistics Department on the monthly salary of a security guard for the first time in his list of authorities for his closing submissions.  But the 2^nd defendant did not plead a case that the plaintiff could have taken up an alternative job as a security guard but failed to mitigate his loss, nor was this suggested in cross-examination to the plaintiff (Judgement, §109).  Further we note there was no evidence as to whether and to what extent the plaintiff would be able to take up the job of a security guard.  Given the foregoing, we agree with the judge that it was not open to the 2^nd defendant to raise this point for the first time in closing submissions.  It cannot be said that there is no reasonable possibility that if the point had been properly taken earlier, the state of the relevant evidence would have been materially more favourable to the plaintiff.

Conclusion

43.For the above reasons, we decline to grant leave to appeal.  The defendants’ summonses are therefore dismissed.  We also make an order pursuant to Order 59 rule 2A(8) that no party may request the determination to be reconsidered at an oral hearing.

44.There will be an order nisi that (1) the defendants pay the plaintiff the costs of their applications; (2) for the purpose of summary assessment, the defendants do within 14 days lodge statements of objections (if any) to the plaintiff’s statements of costs; and (3) the plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Written submissions by Mr Alfred C P Cheng, instructed by Department of Legal Aid, assigned by the Director of Legal Aid, for the plaintiff

Written submissions by Mr Francis Chung, instructed by Deacons, for the 1^st defendant

Written submissions by Mr Leon Ho, instructed by Y.C. Lee Pang & Kwok, for the 2^nd defendant