Ip Kit Leung v. Chan Sze Lam Trading As Wang Chun Environmental Protection Development Company
Read the full judgment text of DCPI 732/2022 on BabelCite. This District Court judgment was delivered on 30 July 2025.
1. This is a personal injuries action where the pleaded issues are (1) whether the alleged accident happened as pleaded ( “Issue 1” ); (2) if so, was the defendant ( “D” ) negligent ( “Issue 2” ); (3) was the plaintiff ( “P” ) contributory negligent ( “Issue 3” ); and (4) causative damage ( “Issue 4” ). Counsel Mr Raymond Tsang acted for P. Counsel Mr Acorn Lau acted for D. Both counsel had been helpful and I thank them for their assistance.
Cited by 1 case · Cites 7 cases
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DCPI 732/2022 [2025] HKDC 1253 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 732 OF 2022 ------------------------- BETWEEN
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------------------------- JUDGMENT ------------------------- 1.This is a personal injuries action where the pleaded issues are (1) whether the alleged accident happened as pleaded (“Issue 1”); (2) if so, was the defendant (“D”) negligent (“Issue 2”); (3) was the plaintiff (“P”) contributory negligent (“Issue 3”); and (4) causative damage (“Issue 4”). Counsel Mr Raymond Tsang acted for P. Counsel Mr Acorn Lau acted for D. Both counsel had been helpful and I thank them for their assistance. 2.The trial took 4 days. At the end of the fourth day, I reserved judgment. This is my judgment. 3.In gist, for the reasons set forth below, I dismiss the action and order P to pay costs to D on a full indemnity basis. In my view, whatever injuries P suffered on the material day (26 March 2019), they were caused by P’s own actions, as opposed to a breach of duty on the part of any other person. There was no negligence on the part of D either so P’s claims are (and had always been) doomed to fail. The Witnesses 4.Three witnesses gave live oral evidence. They are: -
5.The principles on the assessment of evidence are well-known and had been succinctly summarized by myself in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§§10 to 19, DDJ Kenneth KY Lam). As I shall elaborate below, I found the evidence of P unreliable and, unless it was against P’s own interests or supported by other evidence, I do reject the same. By sharp contrast the evidence of D and Lee was relatively reliable and is accepted by me as representative of the truth. P’s Evidence 6.P made witness statements and adopted them on oath. In gist, P said that on 26 March 2019, he suffered injuries whilst at work. P’s work was to operate an excavator. The excavator, with him inside, fell sideways into a pit. P climbed out of the excavator and jumped. P got injured in the process and was sent to a public hospital. That was the evidential basis on which P’s Counsel repeatedly described the accident as one involving two stages, namely (1) the excavator’s fall into the pit (“Stage 1”); and (2) P’s climb (“Stage 2”)[1]. 7.Whilst being cross-examined under oath, P said many things, including repeatedly admitting his own negligence during Stage 1 or Stage 2 in these words: -
8.Despite being competently represented, P struggled to explain his bizarre behaviour or evidence, both of which wholly unsatisfactory. By way of examples, P said these under oath: -
D’s Evidence 9.D was P’s employer. D made witness statements and adopted them. In gist, at the material time, D was physically absent as he went out to buy lunch boxes. D thus did not see what happened. D reiterated he had carefully checked P’s experience and credentials before hiring him, and D left it to P to exercise P’s professional judgment. P was licensed to operate the excavator. By the material time, P had been working on the exact same site for about 37 days, and P knew all P had to know. In the circumstances, D took the view that what happened must be P’s own fault. 10.Whilst being cross-examined under oath, D said many things, including these: -
11.D accepted his witness statements were far from perfect[12], but was adamant that did not mean the accident was D’s fault. Lee’s Evidence 12.Lee was P’s co-worker. He left D’s employment since August 2023 and retired[13]. Lee made a witness statement and adopted it. Lee was at the site but did not see Stage 1. Lee heard a very loud noise which caused him to look towards P. Lee saw Stage 2. Importantly, Lee said he shouted at P and told P he should not jump from height. P acted against his advice and jumped. It was P’s jump which caused the injury[14]. 13.I found Lee’s evidence most reliable since he was independent of D and had no real motive to lie. I accept Lee’s evidence as the truth. Issue 1 14.In the Statement of Claim (“SoC”) filed by P on 29 May 2023, which was drafted by solicitors assigned by the Director of Legal Aid, the accident was alleged to have occurred in this manner: -
15.The plea above was utterly false or at least misleading because the truth was (1) P, by his own admission under oath, had a fully functional mobile phone with him and P could have used it to seek help; (2) P, by his own admission under oath, had plenty of options and did not have to climb out of the cabin at all; and (3) on Lee’s evidence which I accept as the truth, P did not slip but had jumped from height by choice when P clearly did not have to. 16.So the short answer to Issue 1 is that no, the accident certainly did not happen in the way as pleaded, but was the result of an unreasonable and unwise choice on the part of P himself. Issue 2 17.On Issue 2, the short answer is that whilst the work conditions provided by D to P could not be said to be perfect that was neither here nor there as the law did not demand perfection. The law only required D to act reasonably and D had done so. When it came to operating the excavator at the site, P was the most experienced and most qualified person. There was no objective necessity for D to hire a less experienced person to supervise a more experienced person. Any submission to the contrary would be just as absurd as to say a law firm partner should somehow be supervised by an unqualified trainee, or to say a Michelin-Starred chef should be supervised by a waitress with no real cooking experience, or to say a bus-driver should somehow be supervised by someone who never passed any driving test. In my judgment, D acted reasonably, or at least sufficiently, and there was no negligence. Issue 3 18.P, by his own admission under oath, was plainly negligent. It would be bizarre to call P’s negligence “contributory” negligence because P was the only person who had been negligent. P acted grossly negligently by driving the excavator backwards towards a pit for no valid reason, and then jumping out of the excavator, again for no valid reason. P by his sole negligence hurt himself. I find P’s actions utterly unreasonable[16]. Issue 4 19.It follows from the above that Issue 4 did not even arise since without a breach of duty, there could be no “causative” loss. For the sake of completeness, however, I should demonstrate I have duly considered the parties’ submissions, which were interesting. 20.Mr Raymond Tsang, Counsel for P, drew my attention to the old English Court of Appeal judgment in Sayers v Harlow Urban District Council [1958] 1 WLR 623, which was about a lady locked in a toilet who injured herself whilst trying to escape, and invited me to conclude the facts of that case bore “some resemblance” to those in this case[17]. Whilst I fully appreciate Counsel’s effort, with respect I could see no resemblance. The main difference was the one I pointed out to Mr Tsang, in these terms: -
21.In my view, the fact that P had a mobile phone with him which he could have used to call for help made a material difference – it was most unreasonable for P to have chosen to jump from height in the circumstances he found himself to be in. The point was not so much whether a ladder of some sort was coming, or whether firemen could have brought useful tools to assist. The point was that if P had called other people or waited for other people to arrive at the site to help, those other people could help protect P from injuries, such as by catching P if he fell or by holding a ladder steady by group effort[19]. 22.Mr Raymond Tsang, Counsel for P, then drew my attention to the more recent judgment in Clay v TUI UK Ltd [2018] EWCA Civ 1177 [2018] 4 All ER 672, which we discussed in Court during Mr Tsang’s oral closing[20]. In Clay, the appellant’s injury was suffered when he fell from a balcony in Tenerife, where he had gone on a package holiday booked with the respondent. The appeal was dismissed by the majority. Kitchin LJ (as Lord Kitchin JSC then was) in the majority said these (§104 onwards): -
23.In my view, the analysis in Clay was a lot more helpful. Like the scenario in Clay, P in our case was in no immediate danger of any kind and he clearly should have simply sought help, or waited for help. Jumping from height in P’s scenario also “eclipsed” the acts or omissions of others and the injuries suffered by P were just the result of the risk to which P had exposed himself. It is my finding that there was just a single effective cause of P’s injuries, and that single effective cause was P’s own acts. I am most surprised P saw fit to commence or prosecute this personal injuries action when it must be clear to P that he caused his own injuries, and that no other person could be blamed for them. 24.For completeness, I should also mention I considered all other cases cited to me, including the judgment of DDJ Gary CC Lam in Sit Kan Tat v World-Class Talent Limited [2024] HKDC 420[21]. Whilst those cases must have been correctly decided on their own special facts, with respect I do not find any of them of assistance in our present scenario. Our present scenario is a clear case of P harming himself by his own unreasonable and unwise acts. No person other than P should be held legally responsible for P’s injuries. In my view, these matters are fact-sensitive so that other cases decided on their own facts simply do not assist[22]. Quantum 25.Had I been wrong on liability, I would have awarded no more than HK$50,000 for PSLA. I would have rejected P’s assertion that prior to the accident he enjoyed playing snooker, as he failed to produce a single sheet of paper which showed that to be the case and, when asked about this by me, P gave no acceptable reason for that failure[23]. I would have adopted the figure of HK$22,200 per month for pre-trial loss of earnings (26 March 2019 to 26 August 2019). P clearly could have returned to work soon after the accident had he been minded to – his injuries were most minor. Given P’s advanced age – P was born in October 1956 – there should be no further loss of earnings and no loss of earning capacity to speak of. I would have dismissed P’s claims for special damages, given the lack of particulars and the woefully inadequate disclosure[24]. The total final award would therefore be smaller in sum then the HK$298,652 already received by P via DCEC 542/2021[25], which means this action would still have to be dismissed with costs. P’s prosecution of this action was and still is a regrettable waste of public funds. Conclusion 26.For the reasons set out above, this action is dismissed. Costs should follow the event. 27.On a nisi basis, I order P to pay all costs of the whole action, including all costs previously reserved, to D, the quantum of which is to be taxed on the full indemnity basis with Certificate for Counsel if not agreed (“the Order Nisi”) primarily on the basis that in my view, it must be clear to P from the very beginning that he caused his own injuries, and this action should never have been commenced. P wasted D’s costs, precious judicial resources, and public funds managed by the Director of Legal Aid. Having considered the well-known CFA authorities of (1) Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004) 7 HKCFAR 114 and (2) Commissioner of Inland Revenue v Poon Cho Ming John (No 2) (2020) 23 HKCFAR 74 [2020] HKCFA 2 on indemnity costs, this is an appropriate case for P to be held liable for costs on an indemnity basis. As the Chief District Judge stated in Khan Asaf Nawaz v Secretary for Justice [2023] HKDC 605, an indemnity costs order is never to meant to punish P and will not entitle D to recover more costs than he had incurred but given how deplorable P’s commencement of this action was, such an order would “achieve a fairer result” for D, in the sense that D would at the very least be out-of-pocket to a lesser extent. 28.Unless a party takes out a summons within 14 days from today to vary the Order Nisi, the Order Nisi shall become absolute without further order. 29.P’s own costs shall of course be taxed in accordance with the Legal Aid Regulations. In case this is relevant, I do hereby record my view, as I previously mentioned on 17 April 2025[26], that each Counsel did a most competent job in this matter. Mr Raymond Tsang, in particular, should not be blamed for how things went. Final Remarks 30.I thank Mr Raymond Tsang, and Mr Acorn Lau, for their most able assistance.
Mr Raymond Tsang, instructed by Au-Yeung, Chan & Ho, assigned by the Director of Legal Aid, for the plaintiff Mr Acorn Lau, instructed by Ivan Lee & Co, for the defendant [1] Transcript, p.1, Lines S to V. [2] Transcript, p.35, Lines B to H. [3] Transcript, p.39, Lines C to E. [4] Transcript, p.39, Lines T to V. [5] Transcript, p.43, Lines C to F. [6] Transcript, p.47, Lines F to I. [7] Transcript, p.92, Lines K to T. [8] Transcript, p.44, Line P onwards. [9] Transcript, p.66, Line S onwards. [10] Transcript, p.79, Line G onwards. [11] Transcript, p.186, Line D onwards. [12] Transcript, p.186, Line H onwards. [13] Bundle p.187, §2. [14] Bundle p.188, §7. [15] Bundle p.14, §5(d). [16] Transcript, p.265, Line H onwards. [17] Transcript, p.266, Line K. [18] Transcript, p.270, Lines M to O. [19] Transcript, p.275, Lines A to F. [20] Transcript, p.271, Line F onwards. [21] Transcript, p.272, Line N onwards. [22] Transcript, p.276, Line S onwards. [23] Transcript, p.95, Lines I to R. [24] Transcript, p.112, Line J onwards. [25] Bundle p.19, §10. [26] Transcript, p.281, Line O onwards. |
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