Chan Cheuk Wing v. Infinitier Company Ltd

HCPI 21/2020

[2025] HKCFI 3575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 21 OF 2020

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J U D G M E N T

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1.The plaintiff (“Chan”) claims damages against his employer, the defendant (“ICL”), for injuries at work allegedly caused by the breach of duty on its part. The parties managed to agree on the quantum of damages shortly before the trial commenced, leaving the issue of liability to be tried.

Background and pleaded cases

2.The alleged accident happened on 3 February 2017 when Chan was working at ICL’s workshop in a multi-storey industrial building in Tsuen Wan, New Territories (“the Premises”). At the time, ICL carried on the business of supplying electric battery products. It had rented the Premises since the end of 2007 or early 2008 for, amongst other things, storage of rechargeable box type batteries and associated equipment.

3.Chan commenced his employment as a technical coordinator of ICL in August 2007. At the time of the alleged accident, he was about 50 years old.

4.According to his pleading, Chan was at the time by himself unpacking, inspecting and re-arranging the batteries delivered to and laid out on the floor of the Premises. In carrying out his work, he would have to bend down, squat and stand up repeatedly. The floor of the Premises was uneven, damaged and worn. When he was inspecting the batteries and standing up from a squatting position, he lost his balance because of the uneven, damaged and worn floor. As a result, he sprained his back and suffered from serious injuries.

5.Chan has allegedly complained to the proprietor of ICL about the condition of the floor of the Premises. Chan contends that ICL was negligent and in breach of its duty as employer under the employment contract and section 6(1) of the Occupational Safety and Health Ordinance, Cap 509 as well as the common duty as the occupier under the Occupiers’ Liability Ordinance, Cap 314. Essentially, ICL is said to have failed to ensure that Chan was reasonably safe at work with regard to the condition of the floor of the Premises.

6.The above constitutes Chan’s pleaded case. Whilst he had to squat and stand up repeatedly in the course of his work immediately before the accident, the same is not pleaded to have caused his loss of balance which otherwise would not have happened to him. Nor is there contention that he lost balance in the course of lifting the batteries or handling weight, which he might have done prior to the accident on the day. The pleading allows no other fair and reasonable construction. This defines the case which ICL has to answer and hence the parameter of the relevant evidence from both sides.

7.Counsel for Chan confirmed the above understanding of her client’s pleaded case at the pre-trial review before this court, and what she referred to in her opening submission as his work prior to the alleged accident should also be read in such light. In the circumstances, her soon persistent attempt during the trial to deviate from that, despite reminder of this court and counsel for ICL, is the least expected. This will be gone into in due course below.

8.In defence, ICL essentially denies the alleged problematic condition of the floor of the Premises and the alleged complaint about that at any time before the accident. In any event, ICL denies breach of duty in respect of the condition and safety of the floor of the Premises, and does not admitted that the same caused the alleged injuries of Chan. Contributory negligence was pleaded in defence, but ceased to be an issue upon the agreement of the parties on the quantum which is not subject to deduction on account of such defence.

Issues

9.The issues of liability are:

(1)  whether the accident happened as a result of the condition of the floor of the Premises at the time;

(2)  if yes, whether it was because the floor of the Premises at the time was uneven, damaged and worn as alleged; and

(3)  whether ICL was in breach of its duty to ensure Chan was reasonably safe at work in view of the condition of the floor of the Premises.

Witnesses

10.Chan gave evidence.

11.ICL called the following witnesses to testify:

(1)  Mr Cheng Wai Man (“Cheng”), its director;

(2)  Mr Kwok Chi Ho (“Kwok CH”), its technical coordinator working at the Premises since June 2017 (ie after the alleged accident); and

(3)  Mr Kwok Pui Yeung (“Kwok PY”), its transportation contractor responsible for delivery of batteries and equipment to the Premises.

12.The principles governing the assessment of the evidence of witnesses are often cited. Essentially, the court will assess the inherent and relative consistency and plausibility of a witness with reference to the undisputed and indisputable evidence as well as the evidence of the other witnesses. Demeanour of witnesses is not irrelevant but must be taken into account with abundant caution: see for instance Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009 (8 April 2014) at §§77-82.

Whether the alleged accident was caused by the condition of the floor of the Premises

13.There is no eye witness of the alleged accident.

14.Counsel for ICL illustrates in detail what he categories as evolution of Chan’s case over the years. This, he submits, invites only suspicion as to whether Chan is seeking to attribute his alleged loss of balance and fall, and thus injury, to the condition of the floor of the Premises as a matter of afterthought instead of fact.

15.The contemporaneous documents casting light on the issue start with the hospital records and reports from admission to after discharge.

16.Amongst others, the Accident & Emergency Department report recorded Chan’s complaint about back injury in the course of work, but the mechanism of injury was said to be unknown. The case of Chan was entered in the record as “non-traumatic” type injury. In particular, entries of “new injury°”, “LL weakness°”, “numbness°” and “radiation°” were so made to signify their non-existence, though those acting for him pleaded reliance on such report somehow upon the opposite understanding of the meaning of these entries.

17.The subsequent Orthopaedic & Traumatology Ward report recorded the case of Chan as sudden onset of back pain after resuming from a bent position during work. After discharge from the hospital, Chan started attending the outpatient clinic of another hospital. The clinic’s report recorded that Chan “sprained his back while pulling heavy objects”.

18.As such, the treating hospitals’ records suggest that Chan either did not (or was unable to) tell the mechanism of injury apart from feeling the back sprain in the course of standing up from a bent position or he somehow caused the medical personnel at different stages to come to different understanding of what caused his injury. Given the opportunity in court, Chan attributed that to the failure or mistake on the part of the medical personnel of the different departments and hospitals in their records.

19.One moves on to consider the documents whereby Chan provided information about how the accident happened for the purpose of his claim.

20.The first one was Form 2, which was filed by ICL in February 2017 on the basis of the draft admittedly filled in by Chan and sent via WhatsApp to Cheng while he was still hospitalised. Be it in the draft form filled in by Chan or the form filed by ICL, it was stated in sections I and J that at the material time, Chan was required to bend down to attend to the pallets of batteries on the floor, and in doing so he suddenly fell forward without knowing why. He reacted by pressing his hands on the batteries and then tried to stand up. He felt severe pain at the back and could not move. As also stated, the accident fell out of the 16 categories prescribed in section K of Form 2, and thus excluding tripping (option 3) or stepping on objects (option 7) as the cause of the accident. It was described as an accident in the course of work involving bending the back but, as stated in section L, without indication of any medium causing that.

21.6 months after Form 2 has been filed, Chan took the initiative to write to ICL with copy to the Labour Department in August 2017 providing supplementary information about his injury at work. After stating that he had worked for about an hour on the day in question immediately prior to attending to the pallet of batteries, Chan in his letter described that he suddenly lost balance and fell forward. He reacted by pressing his hands on the batteries and sat down. He claimed that at that point an employee of the transportation contractor of ICL happened to be around and helped him up. He felt severe back pain and could not move.

22.In other words, the contemporaneous documents lodged for the purpose of claim, according to the information from Chan, did not suggest that it occurred to him that he fell because of any extraneous physical factor at the time, let alone the floor condition. Given the opportunity to clarify, Chan at one stage confirmed in court his lack of idea about such physical cause of his fall at the time of his letter then.

23.Through those acting for him, Chan filed his employees’ compensation application in January 2019. The cause of the injury was stated to be back sprain when inspecting batteries in the course of his employment with ICL. In view of the nature of employees’ compensation claim, such description in the application might suffice for the purpose of liability of the employer under the Employees’ Compensation Ordinance, Cap 282. That said, it is important to note that according to Chan in court, by the time when the employees’ compensation claim was lodged, he had already realised that the physical cause of his fall was the condition of the floor as that alleged in the present action.

24.How Chan managed to come up with the physical cause of his loss of balance and fall invites suspicion.

25.In his explanation in court, Chan suggested that upon his description of what happened, including his loss of balance and fall, those acting for him helped him to, in his own words, “拆解” or effectively figure out how the accident happened. It was with such help that he managed to remember and to relate his fall to the condition of the floor where he was standing at the time.

26.One may feel sceptical whether Chan and those acting for him were constructing or merely re-constructing the cause of the accident at the time. Putting that aside for the time being, one is given to understand that in any event Chan and those acting for him had by their collective effort already figured out what about the floor where he was standing which allegedly caused him to lose balance and fall at the time. With such alleged state of knowledge on their parts by January 2019, what followed from that point of time would call for explanation.

27.At the end of the same year, and right before the commencement of the present action, those acting for Chan issued the letter before action setting out, amongst other things, how the accident allegedly happened. In particular, it was stated that when Chan was inspecting the batteries and standing up from a squatting position, he lost his balance because the floor was uneven.

28.From ICL’s perspective, that was its first time learning that Chan is attributing his fall to the alleged uneven condition of the floor of the Premise. Those acting for ICL wrote back in January 2020 requesting for particulars of such allegation, specifically: (i) the exact location where Chan was working; (ii) the exact work task he was performing; (iii) how and why the floor had become allegedly uneven; (iv) whether the alleged uneven floor was ever made known to ICL; and, if yes, to whom and when; (v) clarification of the exact cause of the accident; and (vi) provision of exact details of the circumstances of the accident. The request, particularly that for (v) and (vi), is understandable, when those acting for Chan also alleged in their letter before action that ICL was at fault by requesting Chan to work alone when it was unsafe to do so. Those acting for ICL were entitled to know precisely the case on liability to answer.

29.Those acting for Chan replied in the following month, but only to say that they needed to take instruction about the above request for information on the issue of liability and would further reply once they had received instruction from Chan. If, as discussed above, Chan had managed to recall the details and, with the assistance of those acting for him, figured out by January 2019 what caused him to lose balance and fall at the material time, such reply to the request of those acting for ICL in January 2020 would have been surprising. This is even more so, when Chan said in court that he had in fact given instruction to those acting for him in response to those questions from ICL. One way or the other, the true state of affairs works against Chan who alleges. Further, the undisputed fact was that those acting for Chan never came back with the promised further reply at all.

30.All those cast doubt on the credibility and reliability of Chan’s explanation in respect of when and how he came to relate his loss of balance and fall to the condition of the floor at the time. The suspicious view of how such case of his came about mentioned earlier, as it turns out, may not be put aside after all.

31.As far as how he came to lose balance and fall due to the condition of the floor, his version of the events also evolved between his 2 witness statements filed subsequently.

32.In his first witness statement in 2021, Chan gave the following account in line with his letter to ICL in August 2017 and his pleaded case mentioned above. He stated that he squatted down to attend to a pallet of batteries. In the course of standing up from the squatting position, the uneven floor where he was standing caused him to lose balance, and he fell forward. He reacted by pressing his hands on the batteries and sat on top of some other batteries to regain balance. He asked a transportation worker around to help him up, but he felt severe back pain.

33.The second witness statement of Chan came about a year later in November 2022. In that, Chan stated that he lost balance and fell forward in the course of standing up from a squatting position, but he did not attribute that fall to the condition of the floor as stated in his first witness statement. Instead, upon his such fall, he moved his left foot forward attempting to regain balance. It was then his left foot landed on the uneven part of the floor which caused him to lose balance and fall again.

34.In view of the timing of how Chan allegedly came to reckon what caused his fall at the time, there should be no reason for his failure to mention until his second witness statement in November 2022 that he lost balance and fell twice, and that it was his second fall which was caused by the alleged uneven condition of the floor. When asked about that in court, Chan on the one hand explained that this in his view was of no significance to his case, and on the other hand attributed that to his inability to articulate well in his letter back in August 2017. However, the letter written at his initiative then hardly suggests such inability on its face.

35.In any event, also according to Chan, he had by January 2019 already figured out with the help of those acting for him that his loss of balance and fall was caused by the uneven floor where he was standing at the time. That, according to him in court, included his case that he lost balance and fell twice, and that it was the second fall which was caused by the uneven floor where he was standing. That was his instruction to those acting for him then. Regarding the failure to illustrate that in his letter before action, pleading and the first witness statement, notwithstanding his full instruction by then, Chan attributed that to the judgment of those acting for him in preparing those documents.

36.Counsel for ICL also refers to the record of what Chan described as the mechanism of injury to the orthopaedic experts during the joint medical examination. The point is noted. However, in view of the matters discussed above, further exploration of this respect with reference to such record of the experts made for their assessment purpose, in my judgment, is no more necessary.

37.Commonly advanced, perhaps too loosely, nowadays is the argument regarding adverse inference. In the present case, counsel for Chan submits that such inference ought to be drawn against ICL. The adverse inference advocated is premised on the alleged failure of ICL to call witnesses who would have been able to cast light on the occurrence of the accident.

38.I need only emphasize that adverse inference is not a formula but a decision of the court upon consideration of the evidence. The typical instance will be where there is evidence in proof of a prima facie state of affairs against a party who is expected to be in a position to call contrary evidence to rebut that, if so minded. Failure of such party to do so without satisfactory explanation may entitle the court to find the prima facie state of affairs as facts by effectively drawing inference adverse against such party. The principle does not reverse the burden on he who alleges must prove. See the principles in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 which were summarised in Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22.

39.Insofar as whether the accident in the present case happened in the manner as alleged by Chan, whichever version mentioned above it is, there was in fact no eye-witness. As mentioned, according to Chan, an employee of the transportation company happened to be around and helped him up. After that, Chan summoned his then colleague to fetch him his mobile phone so that he managed to inform Cheng of the accident. ICL never seeks to dispute all those. As neither the workman nor Chan’s then colleague witnessed how he came to fall, neither Chan nor ICL saw the need to call them as witnesses on the issue. In any event, Cheng also explained that the then colleague referred to by Chan has also left the company.

40.All things considered, including those discussed above, I do not consider Chan to be reliable. I find on the balance of probabilities that he sustained his back sprain in the course of his work on the day which involved his squatting and standing up from a squatting position. However, it did not occur to him that that had to do with any extraneous physical cause. That might well suffice for the purpose of his claim for employees’ compensation as an accident in and arising out of the course of his work then. That however does not suffice for the purpose of the common law claim, which he must have realised by the time when such claim was being conceived and formulated.

41.In his own words, Chan formulated his claim with the assistance of those acting for him. Even without suspicious view of that as mentioned above, I see the hallmark of a plaintiff making the attribution to a cause and becoming convinced himself that that was in fact the cause of the accident, in respect of which fault may be attributed to the defendant. His case began and kept evolving up to what he alleged in his second witness statement. Hence scepticism expressed by counsel for ICL as to whether the condition of the floor surface was in fact the physical cause of Chan’s loss of balance and fall. I share such scepticism.

Whether the floor was uneven, damaged and worn

42.In any event, was the part of the floor where Chan was standing at the time uneven, damaged or worn as alleged? Given that ICL never contends that the floor surface of the Premises was smooth, as can be seen below, the precise question to ask is whether the condition of the floor surface where he was standing at the time was so uneven, damaged or worn that it in fact caused Chan to lose balance and fall.

43.The floor of the Premises was originally affixed, and effectively carpeted, with a thin plastic layer, but parts of the layer had admittedly been damaged or worn away over the years. This rendered the surface of the floor uneven in a way that it contained patches of lost plastic layer, and there could also be loosened or detached plastic pieces on the floor. It was certainly not a smooth surface. However, there is no question of the floor surface being uneven in terms of variations in gradient or existence of resultant protrusions.

44.The actual extent of the uneven surface of the floor as a result of the wearing away of the top plastic layer is depicted in the photographs taken by the parties. There are those taken by Chan in late 2016 to early 2017 as well as those taken by ICL in late 2022. Disagreement, essentially raised on behalf of Chan, in respect of the true condition of the floor surface patent from the photographs will be discussed further below. Subject to that, the unevenness in terms of height difference created by the various patches of worn away plastic layer of the floor surface ranged from 1 mm to 1.5 mm. The demonstration of measurement taken by those acting for ICL as depicted in the photographs produced by it shows that. In court, Chan accepted, at least at one stage of his oral evidence, that that was the degree of unevenness of the floor surface at the time of the accident.

45.Insofar as the photographs are concerned, counsel for ICL shows no intention of denying possible further wear of the plastic layer of the floor surface over time since Chan had taken his photographs by early 2017. However, as far as any degree of such possible further change is concerned, the photographs still speak for themselves. Neither Chan nor those acting for him manage to show otherwise by other objective means. To the extent counsel for Chan seeks to capitalise on any difference in the images depicted in the photographs, they are more apparent than real. Objectively any difference so viewed may somehow be accounted for, or somehow discounted by, factors such as the time of the day, the lighting condition and the angle in which the photographs were taken by different persons at different times.

46.Worth noting is that it was in response of the statements of the witnesses for ICL and the photographs produced by it that Chan came up with his second and third witness statements. His latest version of the manner in which he fell and injured himself discussed above refers. To suggest that the uneven condition of the floor surface at the time was more serious than what the photographs produced by ICL depict, Chan added by way of further witness statements that loose pieces of plastic pieces might also stack up and edges of the worn plastic layer might also be cocked or curled up. However, such alleged additional conditions of the floor surface are not clearly, if at all, depicted even in the photographs taken in 2017 and produced by him.

47.Led by counsel in re-examination, Chan suggested that the unevenness created by the stacking up of the loose plastic pieces at where he was standing could be more than 1 mm or 1.5 mm. Such oral evidence came in the form of an argumentative assertion of a possibility without objective evidential backing of its probability. One should also bear in mind that the accident is not said to have been caused by slipping or tripping upon stepping on stacked up or loose plastic pieces or curled up edges of the patches of the plastic layer. The case of Ting Siu Yan v Menzies Aviation (Hong Kong) Limited HCPI 861/2005 (2 October 2007) cited by counsel is distinguishable.

48.Attempt to differentiate the condition of the floor surface depicted in the photographs produced by the parties respectively also took the form of counsel for Chan guiding him to identify a particular alleged hole (or perhaps more precisely, a depression) on the floor. Reference to any hole (or depression) on the floor surface as being relevant to where Chan was standing at the time has nowhere been mentioned in pleadings or witness statements.

49.By way of re-examination, counsel also led Chan to circle out the alleged uneven patches on the floor surface at the time, which ended up with almost no floor surface of the vicinity of where the accident allegedly happened being spared from what Chan so circled out. Legitimacy of such attempt to adduce evidence of Chan aside, what counsel for Chan sought to demonstrate fails the relevancy test. The pleaded case of Chan is that he lost balance and fell due to the uneven floor surface where he was standing at the time but not any other spots of alleged unevenness or in the course of travelling across any of those spots in the course of his work.

50.It is also suggested that the condition of the floor surface depicted in the photographs taken by ICL became relatively better due to possible improvement work carried out by ICL in the interim since early 2017. Objectively viewed, the photographs do not satisfactorily, if at all, support the contention. Further, lacking actual evidential backing, the contention is speculative. On the contrary, Cheng confirmed in his evidence that the floor of the Premises had not undergone renovation since August 2007, including after the alleged accident. Both Kwok CH and Kwok PY observed some unevenness of the floor surface of the Premises on the occasions when they were present there. However, Kwok CH observed no renovation work to the floor since his commencement of work there in 2017. Nor did Kwok PY, who was at the Premises on work for about 20 days per month with each visit lasting for half to 2 hours during the relevant times. Kwok PY is very much an independent witness. The evidence of both Mr Kwok was straightforward and, I find, believable.

51.One should also bear in mind that the suggestion on behalf of Chan is not that the floor surface of the Premises has been renovated so that the unevenness was removed. The suggestion is that it had simply been rendered better to its condition as now depicted in the photographs taken by ICL. Effectively, the suggestion is that ICL somehow consciously caused that to be done with a view to mitigating the condition depicted in the photographs taken by Chan in 2017 while retaining the unevenness of the floor as depicted in the photographs taken by Cheng. Such suggestion is inherently implausible. Obviously counsel could not put herself to go so far as suggesting that this was deliberate manipulation or fabrication of evidence by ICL.

52.In my judgment, the attempt to heighten the possible difference between what the photographs from the two sides manage to tell and that to suggest manipulation of the condition of the floor surface by ICL since the accident is disingenuous. I find that the part of the floor surface where Chan was standing at the time immediately before his loss of balance could only bear unevenness or variations in height in terms of a couple of millimetres as a matter of fact.

Whether ICL was in breach of its duty

53.If anything, it was such degree of unevenness of the floor surface as found above which, according to Chan, caused him to lose balance and to fall in the course of standing up from the squatting position or, as alleged in his second witness statement, to lose balance and to fall the second time when he moved his left foot attempting to regain his balance after his first fall. The issue of duty and alleged breach on the part of ICL will have to be gauged on this basis.

54.At the time when Chan sustained his injury, he was attending to about 30 batteries placed on a wooden pallet occupying about 1.1 metre x 0.8 metre of the floor. The height of the batteries on the pallet was about 0.5 metre. Hence the need to bend down or squat repeatedly in the course of his work around the pallet. Whilst this formed the background immediately prior to the accident, as mentioned, the pleaded case of Chan is that he lost balance and fell due to the alleged uneven, damaged and worn floor surface where he was standing up from a squatting position at the time.

55.Despite repeated reminders, counsel for Chan persisted in her attempt to straddle beyond the limit of her client’s case which he may legitimately run at the trial. Essentially, she still seeks to advance her client’s case that the accident was not caused by a single factor, referring to the alleged uneven floor surface, but all the features of his work in that morning combined. Those features of his work consisted of working without assistance, moving the pallet of batteries and adopting the body posture in attending to the pallets of batteries on the floor repeatedly. The foreseeability of an accident like that happened in the present case, she argues, should be assessed on the basis of these features of the work that morning before his fall. Counsel was certainly consistent with this idea in approaching her examination of the witnesses in court, regarding which counsel for ICL had to put his marker in its course for the court’s caution.

56.That it is the pleadings which define the issues and dictate the course of proceedings before and at the trial needs no introduction: see Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 (at§§21-22). That put this court on guard in this respect during the pre-trial review hearing. As mentioned, this court then obtained confirmation from counsel for Chan of the understanding that the work of Chan immediately prior to his injury on the day constituted the background while the physical cause of his injury was the alleged uneven floor surface where he was standing. As such, the alleged liability on the part of ICL must be built on (i) whether Chan lost balance and fell because of the alleged uneven floor surface of the Premises as alleged; (ii) whether such alleged accident was reasonably foreseeable, and (iii) if yes, whether ICL had failed to take reasonable steps to prevent exposing its employee to the risk of such accident and injury. This is the case which ICL is supposed to answer.

57.There is no pleaded cause on the basis that his physical condition after his work that morning, or any specific task, caused or contributed to his loss of balance and fall. It is not contended that but for such physical condition of Chan after the morning’s work, he would have managed to stand up from a squatting position uneventfully. This is also reflected by how the medical experts engaged by the parties approached their assessments. Neither of the experts understood the accident and injury in question was the result of what counsel now seeks to argue. The expert engaged on behalf of ICL indeed commented on the frequent daily squatting and standing up in the course of work according to Chan. However, apart from noting no complaint about slipping or twisting when the back pain appeared, the expert opined that it was highly likely that Chan just lost balance when standing up, and there was no injury to the back preceding his fall. The case of Lai Kin Wah v Hip Hing Construction Co Ltd HCPI 255/1996 (31 January 1997), which involved injury as a result of repetitive heavy manual labour, cited by counsel is distinguishable.

58.In the circumstances of the present case, reasonable foreseeability of the kind of accident, namely uneven floor surface causing a person at work to lose balance and fall, hinges upon knowledge, actual and constructive, of such risk on the part of the employer: see for instance Cheung Kin Kwok Alen v Lau Kam Chee [2004] 3 HKC 227 at §7; Cheung Wai Mei v The Excelsior Hotel (Hong Kong) Limited trading as The Excelsior, CACV 38/2000 (22 November 2000) at §§19-24.

59.Albeit not determinative, the fact was that Chan managed to complete his work in a similar manner at other spots of the floor surface uneventfully that morning before coming to the point where he sustained his injury. There is no dispute that Chan was wearing at the time a pair of sneakers, according to him, with sole of about 20 mm (close to 1 inch) thick. Objectively, it is hard to believe that a person wearing shoes like those standing on the floor surface with unevenness in terms of variations within a couple of millimetres in the present case would run the risk of losing balance and falling, in the absence of slipping or tripping.

60.Chan builds his case of reasonable foreseeability on the alleged actual knowledge on the part of ICL. According to him, he had complained to Cheng on many occasions before the day of the accident about the unevenness, damage and wearing away of the floor surface of the Premises. Cheng denies that.

61.Specific details of the alleged repeated complaints were lacking in Chan’s evidence. There is also no suggestion or evidence of any prior accident. Where the unevenness of the floor surface would have manifested itself in terms of variations within a couple of millimetres, serious doubt arises as to the inherent credibility of the alleged concern on the part of Chan to lodge the alleged complaint, let alone repeatedly, to Cheng.

62.Considering the evidence of Chan, including how the attribution of his injury to the condition of the floor surface came about as discussed above, serious doubt arises as to the relative credibility of his evidence in this respect when compared with that of the witnesses for ICL as discussed above.

63.All things considered, I do not find Chan to be believable on this disputed issue of repeated complaints to Chen.

64.The evidence of Cheng casts light on whether he could have reasonably caused his company to take steps to remove the unevenness of the floor surface of the Premises. As mentioned, the Premises is an industrial unit which ICL rented in 2007 and had since been using as warehouse. Cheng confirmed, which this court accepts, no renovation had since been done to the floor surface of the Premises. There is no suggestion or evidence of prior injury due to such floor surface condition of the Premises.

65.If ever ICL had had to consider renovating the floor surface to remove its unevenness, the company, according to Cheng, would have had to obtain the consent of the landlord, incurred the renovation cost and the incidental disruption of the business during the interim. Chan was in no position to contradict that. In the circumstances discussed above, this in my judgment would have been out of proportion, and therefore beyond the reasonable duty expected of ICL, to address the extent of unevenness of the floor surface as found.

66.All the witnesses, including Chan, found the condition of the floor surface of the Premises to be patent enough. In other words, the circumstances would not have called for specific warning or instruction to the employees or visitors of ICL there regarding the condition of the floor surface. With his own awareness, Chan could be left to take care by no other than to come to work in proper shoes. As mentioned, he did so. There is no assertion or evidence that particular type of shoes other than those actually worn by Chan should have been provided or else they would not suffice for the purpose of safety on the extent of unevenness of the floor surface as found.

67.In the circumstances, I do not find that ICL was in breach of its reasonable duty towards the safety of Chan at work, insofar as the condition of the floor surface of the Premises at the time is concerned.

68.For completeness, a few words about some other allegations advanced on behalf of Chan.

69.Chan first asserted in his second witness statement that the work procedure of filling into sulphuric acid into the batteries under maintenance would entail spillage, which would cause erosion of not only the floor surface but also the concrete and steel bar bedding. That, he added, was expressly pointed out to Cheng before the accident.

70.Such contention is nowhere to be found in his pleading. The closest perhaps are the general pleas that ICL caused or permitted the floor to remain uneven, damaged and worn; or failed to maintain and repair the floor or; even more generally, failed to provide a safe place of work. Yet these kinds of general plea do not offer refuge for any liberty to raise specific factual contentions like that.

71.The work procedure of filling in sulphuric acid into the batteries was not really disputed by Cheng in court. However, this is far from establishing Chan’s case that such work procedure in fact caused the uneven condition of the floor surface, let alone breach of duty on the part of ICL in preventing that, when there is lack of proper pleading to put that in issue to render relevant the necessary investigation by both parties. Had that been properly put in issue, that would have gone beyond mere common sense and knowledge, and expert on liability might have had to be consulted.

72.In any event, it is still the resultant situation of the floor surface and its impact which are relevant. In other words, the same condition of the floor surface and its risk, and hence the duty on the part of ICL to take step to prevent Chan from exposing to such risk, as found which matter.

73.Reference to heavy tasks such as moving batteries and equipment single-handedly, in my judgment, is an exaggeration. Batteries were moved into the Premises on pallets. Insofar as moving the pallets or batteries is concerned, the evidence, including the photographs, showed that this was done by using the manual or electric pallet jack provided by ICL on site. Likewise, the allegation in relation to lifting weight at work is irrelevant. The case of Thapa Goma v Tina Global (HK) Limited & Anor [2019] HKCFI 471 cited by counsel is distinguishable.

Conclusion

74.I am not satisfied that Chan manages to prove that he sustained back injury because of the uneven floor surface where he was standing at the time. The unevenness, I find, was not, as it could not, be more serious than variations in height in terms of a couple of millimetres. All the circumstances considered, I do not find that ICL was in breach of its duties in preventing accident which could arise out of such a condition of the floor surface. I find Chan fails to prove liability.

Quantum

75.For the record, the parties agree on quantum in the sum of HK$500,000 on top of the employees’ compensation in the sum of HK$1,008,083.74.

Conclusion and order

76.The claim is dismissed.

77.Following this event, I make a nisi order that Chan shall pay ICL its costs of the action, including any costs reserved, which shall be taxed, if not agreed. Chan’s own costs shall be taxed in accordance with legal aid regulation. In the absence of application within 14 days to vary, the nisi order shall become absolute without further order.

Ms Jolie Chao, instructed by ONC Lawyers, assigned by the Director of Legal Aid, for the plaintiff

Mr Gary KH Chung and Ms Flora Lam, instructed by Winnie Leung & Co, for the defendant