Chan Bing Choy v. Ming Kee Co Ltd and Another

DCPI1296/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1296 OF 2004

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BETWEEN

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Coram : Her Honour Judge C.B. Chan in Court

Dates of Trial : 2^nd & 3^rd May 2006

Date of Handing down Judgment : 29^th May 2006

JUDGMENT

1.In this Action the Plaintiff claims damages for personal injuries suffered by him arising from an accident in the course of his employment.  Subject to the issue of liability, the quantum was agreed at $200,000 inclusive of interest but exclusive of Employees' Compensation received.  The amount of Employees' Compensation received is $50,336.60.

2.At the time of the accident the Plaintiff was a truck driver and transportation worker of the 1^st Defendant.

3.The 1^st Defendant is carrying on business of road maintenance and truck/machine transportation.  The 2^nd Defendant is carrying on business, inter alia, as a construction company and paving of asphalt on roads.

4.According to the Statement of Claim, on 23 February 2003, the Plaintiff was stationed at Yuen Long.  He was instructed to transport two asphalt trucks belonging to the 2^nd Defendant from a construction site at Tseung Kwan O (“the Site”) to Wanchai. 

5.The Plaintiff arrived at Tseung Kwan O with another colleague who took one of the asphalt trucks and left.  The Plaintiff loaded the remaining asphalt truck onto the pick-up truck.  He had to pull down the metal roof on the asphalt truck.  The roof needed to be lowered otherwise it would be taller than the pick-up truck and would render it unsafe to transport. 

6.In the Statement of Claim the Plaintiff pleaded that the roof was being held up by two metal pumps.  When the Plaintiff was in the process of pulling the roof down, one of the metal pumps broke and the whole of the metal roof 5 foot long and 3.5 foot wide came off, hitting the Plaintiff on the head.  The Plaintiff's head and neck was injured as a result of the Accident.  The Plaintiff gave evidence in Court that the canvas roof fell at a fast speed.

7.The Plaintiff alleges that the Defendants were negligent and in breach of statutory duties.  The particulars are stated at paragraphs 7 and 8 of the Statement of Claim.

8.The Plaintiff has the onus of establishing on a balance of probability that:-

(a)	The Plaintiff met with an accident, in the manner described by him, whereby he was injured;
(b)	the Accident was caused by breaches of statutory duties and/or negligence on the part of the Defendants.

The 1st Issue

9.Has the Plaintiff established that he met with an accident in the manner as described by him in his evidence at the trial?

10.The Defendants have no evidence on how the Plaintiff was injured or whether he had met with an accident as described by him at the hearing.

Evidence of the Plaintiff

11.It seems that the Plaintiff's pleaded case on how the accident happened is different from his evidence at the trial.  His pleaded case in the Statement of Claim has been referred to aforesaid.  The Plaintiff alleges in his Statement of Claim that one of the metal pumps (later known to be compressed air absorbers) broke and the whole metal roof came off. 

12.In his oral evidence at the trial the Plaintiff stated that he unlocked the knobs of the joints of the four vertical frames.  He did not find anything unusual.  When he pulled the handle of the canvas roof, the whole canvas roof dropped much quicker than normal.  As a result of that his head and neck was hit.  He said after it fell its position was not tilted but was in the position of its normal resting place in the lowered position.  After that he took a rest.  He later found that the metal rod of one of the compressed air absorbers was bent.  The metal rod is that shown in Photograph No. 4 of Exh. P1 and is identified by a red arrow pointing towards it.

13.Under the cross-examination by the 1^st Defendant's Counsel he stated that he had no idea on whether the other three pumps were in good operation. 

14.I find the Plaintiff's credibility to be doubtful.  In the Statement of Claim he stated the canvas roof came off.  In oral evidence he stated that it dropped much quicker than normal.  He stated in evidence that after the canvas roof fell down he noticed that the metal rod or the piston, of one of the compressed air absorbers got bent.  It seems to me that if the piston of a compressed air absorber got bent, it would not be easy for the piston to go into the compressed air chamber of the absorber.  However if the canvas dropped down quickly as described by him, all the four pistons of the four compressed air absorbers must have entered into the compressed air chambers of the absorbers.  It seems to me that the Plaintiff's evidence that he found that one of the metal rod or piston of a compressed air absorber was found to be bent after the canvas roof allegedly fell down is contrary to common sense.

Evidence of the 2nd Defendant's Witnesses

15.DW4 Chan Koon To was employed by the 2^nd Defendant as an operator of an asphalt paver and has worked in that position since before 1997.  He gave evidence that on 23 February 2003 he worked in Wanchai and operated the asphalt paver in question numbered P17.  He stated that before he operated it, he examined it and conducted a check on the whole machine after it was delivered.  He saw everything was functioning properly no one told him that an accident had happened earlier.  Before he operated P17, he had to lift the canvas roof up with the help of another.  It lifted normally. 

16.DW5 Lam Chun Wah (“Mr. Lam”) gave evidence.  He is the Supervisor of the Maintenance Department of the 2^nd Defendant.  He held a Diploma in Mechanical Engineering from the Vocational Training Council.  He was informed of the accident after the 2^nd Defendant received a solicitor's letter from the Plaintiff about the accident. 

17.He stated that each of the machines of the 2^nd Defendant has a record of maintenance.  Before he prepared his witness statement he looked at the maintenance record of P17 and found that there has been no repair of the canvas roof of P17 on and since 23 February 2003.

18.DW5 Mr. Lam gave evidence which explained the metal structure that supported the canvas roof.  His evidence was that there are four vertical metal supports of the canvas roof.  Photograph No. 3 of Exh. P1 shows the four vertical metal supports.  Each vertical metal support has a compressed air absorber attached which ensures that the vertical metal support of the canvas roof stays upright even if the joints are released.  A compressed air absorber is seen in Photograph No. 4 of Exh. P1.  A red arrow points to its piston consisting of a metal rod in Photo No. 4.  If the rod of the air absorber is bent, the bent rod would obstruct the canvas roof from being lowered.  Mr. Lam explained the operation of the canvas roof, in particular, the mechanics involved in lowering of the canvas roof.  He demonstrated how the vertical metal support frames could be bent from its position after the joints were released by a lever shown in the bottom of Photo No. 4.  He also showed that the compressed air absorbers functioned in supporting the four metal vertical supports of the canvas roof even after the joints were released.  The canvas roof had to be pulled down by the metal handles under the roof and the roof would gradually be lowered.  One such metal handle is identified by a red arrow in Photograph No. 3 of Exh. P1.  The compressed air in the absorbers would still hold up the metal vertical supports.  It is only by pulling against the support from the compressed air absorbers that the canvas roof could be lowered. 

19.He pointed out that the air pressure would not suddenly leave an air absorber as it is a sealed device.  He thought it is not possible that all four air absorbers would lose their air pressure at one time.  He conceded that he encountered one incident that one of the compressed air absorber in the vertical metal support frame lost pressure.  However, he also pointed out that he had never encountered all four air-absorbers not functioning before.  He was of the view that if one of the compressed air absorber went wrong, the roof would still not collapse as the other three would hold up the canvas roof. 

20.I found these Defence witnesses to be credible witnesses.  They gave their evidence in a straightforward and forthright manner.  They answered questions in a direct manner.  I accept their evidence as true.  I find Mr. Lam's evidence in relation to his knowledge of the function and workings of the metal frame structure of the canvas roof and the evidence related to the compressed air absorbers must have come from his experience as a supervisor of the Maintenance Department of the Defendant.  I am of the view that such evidence must come from what he saw, heard and did in his supervision of the maintenance of the P17, and is factual in nature.

The Inherent Improbability of the Plaintiff's Version of the Accident

21.The Plaintiff stated that the canvas roof fell quickly after he released the joints of the vertical metal support and pulled it down from the handle under the roof.  This could only have happened if all four compressed air absorbers gave way simultaneously according to Mr. Lam's evidence as regards the function of the compressed air absorbers.  Mr. Lam, DW5, stated that the absorbers were compressed air absorbers.  He stated as the compressed air is sealed in each absorber it is highly improbable for all four absorbers to give way at the same time.  Mr. Lam states and common sense would dictate that, if one absorber gave way the canvas roof may tilt but would not fall down quickly in the way described by the Plaintiff.

22.Further Mr. Chan Koon To who was the driver who used the P17 after the alleged collapse of the canvas roof gave evidence that he was able to lift the canvas roof normally when he came to use P17   If the compressed air absorbers in the four absorbers had leaked, surely the absorbers would not operate normally in keeping the canvas roof up.

23.Mr. Lam also said that on and since 23 February 2003, there has been no record of maintenance of the compressed air absorbers or the vertical metal support of the canvas roof. 

24.For the above reasons I find the evidence of how the accident happened as stated by the Plaintiff to be unbelievable.  I do not accept his evidence.  As I do not accept his evidence I find that the Plaintiff has not established that the accident happened in the manner described by him.  I therefore find that the Plaintiff has not established liability against the 1^st and 2^nd Defendants and I dismiss this Action.

25.Claim is dismissed with an order nisi that costs of the action be paid by the Plaintiff to the 1^st and 2^nd Defendants to be taxed if not agreed with Certificate for Counsel.

Representation:

Mr. Luiz A. da Silva Pedruco instructed by Messrs. B. Mak & Co. for the Plaintiff.

Mr. C.K. Wong instructed by Messrs. Waller Ma Huang & Yeung for the 1^st Defendant.

Mr. Eric Lau instructed by Messrs. Tang Wong & Cheung for the 2^nd Defendant.